Natasha S. Chee, Esq.
Attorney at Law
3527 Mt. Diablo Blvd., Ste. 380
Lafayette, California 94549
Phone: 650.283.4955
Fax:
925.290.3100
NSCLAW@gmail.com
www.natashachee.com
Law Offices of Natasha S. Chee
Trials 101: Civil and Criminal Case Management Essentials Part 3: Experts, Investigations and the next step...
Motion for Summary Judgment (MSJ) and
Motion for Summary Adjudication MSA) Outline
© 2014 Natasha S. Chee
Purpose of MSJ and MSA:
• The party moving for summary judgment bears the burden of persuasion
that there is no triable issue of material fact and that he is entitled to
judgment as a matter of law. See CCP Section 437c.
•
•
•
MSJ
Asks the court to determine whether
the entire action has no merit (or no
defense) and to terminate the action
without the necessity of a trial. (See
CCP 437c(a))
When court grants MSJ, the action is
terminated.
Immediately appealable judgment is
entered.
•
•
•
MSA
Asks the court to adjudicate the merits
of a particular cause of action,
affirmative defense, issue of duty or
claim for damages, including a
punitive damage request. (See CCP
437c(f))
When court grants on specific claim or
defense, then the action proceeds to
trial on the remaining issues.
Summary Adjudication order is not
appealable.
Burden of Proof on Motion:
• Parties moving for and opposing carry both a burden of persuasion and a burden
of production of evidence.
• Burden of Persuasion:
o From commencement to conclusion, the party moving for summary
judgment bears the burden of persuasion that there is no triable issue of
material fact and that he in entitled to judgment as a matter of law.
 Plaintiff’s moving for SJ bear burden of persuasion that each
element of the cause of action has been “proved,” and no defense
exists.

•
Defendant’s moving for SJ bear burden that one or more elements
of the COA cannot be established or that there is a complete
defense thereto.
Burden of Production:
o The moving party bears the initial burden of production to make a prima
facie showing that there are no triable issues of material fact.
o If the moving party carries this burden, it causes a shift, and the opposing
party is then subject to its own burden of production to make a prima facie
showing that a triable issue of material fact exists.
Procedural Requirements:
•
•
•
Required:
o Notice of Motion
o Separate Statement of Undisputed Facts
o Points and Authorities
o Request for judicial notice, if appropriate; and
o Declarations of other evidence.
When the Motion May be Made:
o 60-day Hold at beginning of case – an MSJ or MSA cannot be made until
at least 60 days after the general appearance of the party against whom it
is directed, unless the court permits it earlier for good cause shown.
 Purpose is to give the opposing party a chance to investigate and
obtain discovery before having to deal with a motion that could
terminate the litigation.
 General appearance – P when they file the complaint. D when they
answer, demurrer, move to strike, or move to change venue.
 Exception – unlawful detainers, can be brought any time after
answer is filed.
 The court has discretion to delay the motion hearing until other
matters are resolved. There is no right to have the MSJ heard
immediately.
o Cut-Off 30 Days Before Trial:
 Motion can’t be heard later than 30 days before date set for trial,
unless otherwise ordered for good cause. Can continue the trial
date to allow for motion to be heard in regular time.
Service and Filing Requirements:
o 75-day notice requirement, motion must be served at least 105 days before
trial, 80 days if by mail w/in CA, 85 days if elsewhere in US, 95 days
outside of US. If by fax, express mail, or overnight delivery, extend by
two court days.
o Check the department, in which your motion will be heard, motions may
only be heard on certain days, thus will affect time the notice must be
served.
•
Notice of Motion - Specific Order of Judgment Sought:
o Summary Judgment:
 Should name the party in whose favor and against whom the
judgment is sought and the amount, if applicable.
 If it is a multi-party action, directing it “to all opposing parties”
may not be adequate notice where different relief is sought against
different parties.
o Summary Adjudication:
 Notice must specify the “specific cause of action, affirmative
defense, claims for damages, or issues of duty” sought to be
adjudicated.
Separate Statement of Undisputed Material Facts (UMF):
•
•
•
•
•
Every MSJ must be accompanied by a “separate statement setting forth plainly
and concisely all material facts which the moving party contends are undisputed.”
Each of the material facts in the statement must be “followed by reference to the
supporting evidence.”
It must separately identify each cause of action, claim, issue of duty or affirmative
defense and each supporting “material fact” claimed to be without dispute with
respect to that cause of action, claim, and issue of duty or affirmative defense.
Purpose:
o Intended to permit the judge to determine quickly whether the motion is
supported by sufficient undisputed facts.
o If the opposing statement disputes an essential fact alleged, the judge can
just go to the evidence cited and review that part.
Effect:
o Both parties must go through its case on an issue-by-issue basis.
o The moving party must identify the matters it contends are “undisputed,”
and cite specific evidence (pleadings admissions, or discovery, or
declarations), showing there is no controversy and the part is entitled to
judgment as a matter of law.
o Be hyper-vigilant when drafting the separate statement bc the court has
discretion to disregard matters not listed therein.
o Include only those facts that are truly material to the claims or defenses
involved bc the separate statement effectively concedes the materiality of
whatever facts are included. Thus, if a triable issue is raised as to any of
the facts in your separate statement, the motion may be denied.
o Court has inherent power to strike proposed undisputed facts “that impede
the ability of the court to determine whether the case presents triable
material issues of fact.”
Separate Statement Format Requirements:
Moving Party:
• Separate:
o The statement is a separate document and not part of the notice of motion.
• Caption:
o “Statement of Undisputed Material Facts in Support of Motion for
Summary Judgment (or Adjudication, or both).”
• Two-column Format:
o First column: “Moving Party’s Undisputed Material Facts and Supporting
Evidence”
o Second column: leave blank for opp. Counsel’s responses.
• Left Column:
o Moving party states in numerical sequence each undisputed material fact
and immediately below it, in the same column, a citation to the supporting
evidence.
Moving Party’s Undisputed Material
Facts and Supporting Evidence
1. Plaintiff Smith orally agreed
to sell and deliver to
defendant Jones 10,000
widgets for $100,000.
Smith’s declaration, 1:17-21
•
•
SS in E-form:
o Upon request, a party must, within three days, provide to any other party
or to the court an electronic version of its SS.
The opposition papers must include a separate statement responding to each of the
material facts the moving party contends to be undisputed. It must identify any
other material facts the opposing party contends are disputed.
o Each material fact must be followed by a reference to supporting evidence.
 Exceptions: The SS doesn’t apply in unlawful detainer actions.
Opposing Party:
• Separate Document:
o The opposition SS must be “separate” from the other opposing papers and
“separately stapled.”
• Caption:
o The document must be entitled “[Opposing Party’s] Separate Statement of
Undisputed Material Facts in Opposition to [Moving Party’s] Motion for
Summary Judgment or Summary Adjudication or Both.”
• In right column of moving party’s SS:
o Opposing party’s response must be placed in the 2nd or right hand column,
entitled “Opposing Party’s Response and Supporting Evidence.”
o It must either state: Undisputed or Disputed

If disputed, the word should immediately be followed by a
reference to the evidence demonstrating that the fact is disputed.
o If the moving party’s statement rests on objectionable evidence, the
opposing party’s statement should state the objection by referring to the
objection number of separately filed evidentiary objections. CRC
3.1354(b).
Moving Party’s Undisputed Material
Facts and Supporting Evidence
1. Plaintiff Smith orally agreed
to sell and deliver to
defendant Jones 10,000
widgets for $100,000.
Smith’s declaration, 1:17-21
2. The sale was made through
Broker who told Jones at the
time of the sale that Smith’s
widgets were Grade No. 2.
Smith’s declaration, 3:5-9;
Broker’s declaration, 2:7-18
•
Opposing Party’s Responses and
Supporting Evidence
Disputed. The agreement was for bales
of hay. Jones’ declaration, 3:2-9
Objection: Hearsay.
See Objection No.1.
Disputed. Broker never told this to
Jones.
Jones’ declaration, 6:5-7
Additional Facts in Dispute:
o Must set forth any material facts which the opposing party contends are
disputed but which are not listed in the moving papers; and for each such
fact, a reference to the evidence which creates the dispute.
Opponent’s Right to Continuance:
• Opposing party shows by declaration that essential evidence “may exist but
cannot, for reasons stated, then be presented, the court shall deny the motion” or
continue it for a reasonable period, or “make any other order as may be just.”
• Continuance “virtually mandated” with requisite showing.
• Need only show that material evidence may exist.
• In determining what orders “may be just,” the court may consider whether the
party seeking the continuance has been diligent in its discovery efforts.
• Timing of Request for Continuance:
o An application to continue the motion may be made in the opposition
papers or by ex parte motion any time on or before the date the opposition
to the motion is due.
Objections to Moving Party’s Evidence:
• The opposing party may object to the moving party’s evidence. Failure to object
waives the right to challenge the court’s ruling based on such evidence.
• Trial courts have a duty to rule on objections. If they fail to rule on properly
brought forth objections, they are preserved for appeal.
• Form:
o Objections to Evidence:

•
Procedure for objection: Evidentiary objections must be made “at
the hearing” or are deemed waived.
 A party may object to evidence in opposing papers either by
submitting written objections before the hearing or “making
arrangements for a court reporter to be present at the hearing.”
o Time for Filling Written Objections:
 Unless excused by the court for good cause, all written objections
must be filed and served at the same time as the objecting party’s
opposition or reply papers.
o Objections are a Separate Document:
 The written objections must be served and filed separately from
papers supporting or opposing the motion.
Format for Written Objections:
o Each written objection must be numbered consecutively and must:
 Identify the name of the document in which the objectionable
material is located;
 State the exhibit, title, page and line number of the material
objected to;
 Quote or set forth the objectionable statement or material; and
 State the grounds for each objection
o Must follow one of two formats:
 The first format - place each item of evidence objected to in one
paragraph, followed by a paragraph stating the objection.
 The second format - place the evidence objected to in one column
and the objection in an adjacent column.
Opposition Papers - Service and Filing Requirements:
• All opposition papers must be served on the moving party and filed with the court
at least 14 days before the date set for hearing on the motion, unless the court
shortens the time for good cause.
• Must be served to reasonably ensure delivery to the other party or parties not later
than the close of the next business day after filing with the court.
Reply Papers
• Moving party has a right to file a reply to the opposition. May not exceed 10
pages.
• Reply - Service and Filing Requirements:
o Serve and file at least five days before date of hearing, regardless of how
they’re served.
o Must be served to reasonably ensure delivery to the other party or parties
not later than the close of the next business day after filing with the court.
• Objecting to Opposing Party’s Evidence:
o Another proper function the reply is to object.
o The moving party generally may not rely on additional evidence filed with
its reply papers.