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    A Conceptual Approach to California Summary Judgment
    A Conceptual Approach to California Summary Judgment
    A Conceptual Approach to California Summary Judgment
    Ebook98 pages1 hour

    A Conceptual Approach to California Summary Judgment

    By Thomas Kallay

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    About this ebook

    Summary judgment is a sophisticated and important procedural device; in A Conceptual Approach to California Summary Judgment, author Thomas Kallay provides a detailed analysis and explanation of how this procedure is used in California.

    Kallay identifies its fundamental components and concepts and shows how these interact with each other. This study also explores the relationship of California summary judgment to other procedural devices. It discusses:

    direct, circumstantial, and admissible evidence;
    the presentation of evidence;
    material and ultimate facts;
    the burden of the moving party and opposing party;
    evaluation of opponents evidence;
    evenly balanced influences;
    summary adjudication;
    summary judgment, directed verdict, and the constitution;
    the burdens of production and persuasion;
    the appeal.

    Geared toward law students and lawyers, A Conceptual Approach to California Summary Judgment provides a comprehensive overview of this significant component of California law.

    The cornerstone of summary judgment is evidence. First, both the party moving for summary judgment and the opponent of the motion must rely on evidence. Second, the court must determine the motion based on the evidence presented.

    The courts have held from time to time that the parties to a motion for summary judgment must rely on evidentiary facts. This is another way of saying that the parties and the court must rely on admissible evidence.

    With one exception, evidence for the purposes of summary judgment is no different from evidence presented at trial.

    LanguageEnglish
    PublisheriUniverse
    Release dateJun 27, 2012
    ISBN9781462073351
    A Conceptual Approach to California Summary Judgment
    Author

    Thomas Kallay

    Thomas Kallay has been a member of the California Bar since 1963. He has practiced law as a civil litigator and has worked for the California Court of Appeal in Los Angeles as a judicial attorney. Kallay has published several articles dealing with California civil procedure.

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      Book preview

      A Conceptual Approach to California Summary Judgment - Thomas Kallay

      A Conceptual

      Approach to California

      Summary Judgment

      Thomas Kallay

      iUniverse, Inc.

      Bloomington

      Copyright © 2012 by Thomas Kallay

      All rights reserved. No part of this book may be used or reproduced by any means, graphic, electronic, or mechanical, including photocopying, recording, taping or by any information storage retrieval system without the written permission of the publisher except in the case of brief quotations embodied in critical articles and reviews.

      iUniverse books may be ordered through booksellers or by contacting:

      iUniverse

      1663 Liberty Drive

      Bloomington, IN 47403

      www.iuniverse.com

      1-800-Authors (1-800-288-4677)

      Any people depicted in stock imagery provided by Thinkstock are models, and such images are being used for illustrative purposes only.

      Certain stock imagery © Thinkstock.

      ISBN: 978-1-4620-7334-4 (sc)

      ISBN: 978-1-4620-7335-1 (e)

      iUniverse rev. date: 06/14/2012

      Contents

      Preface

      Evidence

      Direct and Circumstantial Evidence

      Admissible Evidence

      The Means by Which Evidence Is Presented in Summary Judgment

      Material and Ultimate Facts

      The Statement of Material Undisputed Facts

      The Burden of the Moving Party

      The Burden of the Opposing Party

      The Evaluation of the Opponent’s Evidence

      When the Inferences Are Evenly Balanced

      Summary Adjudication

      Summary Judgment, Directed Verdict, and the Constitution

      The Burdens of Production and Persuasion

      The Appeal

      Conclusion

      Endnotes

      Preface

      The origin of summary judgment in the United States is the Summary Procedure on Bills of Exchange Act, enacted by the British Parliament in 1855. Although summary procedures, usually on liquidated obligations, were in use in the United States during the nineteenth century, summary judgment on the English model began to be adopted in the United States during the early decades of the twentieth century. Summary judgment arrived in California in 1929, when a motion procedure replaced a summary bench trial that had been available since 1925.

      The hallmark of summary judgment is and was, at least since 1929 in California, that it is a motion procedure based on affidavits. As originally enacted, California summary judgment was limited to municipal courts and to actions on liquidated obligations: only plaintiffs could move for summary judgment. In California, it took nearly a quarter of a century for summary judgment to develop into its present form.

      There are a number of excellent treatments of California summary judgment. This text attempts to contribute to the literature on California summary judgment by identifying the fundamental concepts or components of summary judgment and by setting out how these components are melded together to constitute the sophisticated and important procedural device that is modern summary judgment. Unlike some other treatments of summary judgment, this work does not view summary judgment in isolation but attempts to relate it to concepts that operate in other settings. One example of this is the concept of evidence that is sufficient to carry a case to the jury. In summary judgment, this concept appears as the quantum of evidence that leads to a denial of the motion for summary judgment. This work also makes a concerted effort to focus on the summary judgment statute itself to counteract a tendency to overlook the statute in favor of judicially crafted solutions.

      The current version of Code of Civil Procedure section 437c, the summary judgment statute, was more than sixty years in the making. It is the result of a great deal of experience and good thinking on the part of the legislature and the appellate courts. While it is not the exclusive source of the law of summary judgment, when section 437c speaks, it does so clearly. It follows that, with a few important exceptions discussed in chapter 9, section 437c should be the primary guide to the law of California summary judgment.

      The views expressed in this text are solely mine. They are not to be attributed to any past or present employer.

      Chapter One

      Evidence

      The cornerstone of summary judgment is evidence. First, both the party moving for summary judgment and the opponent of the motion must rely on evidence.¹ Second, the court must determine the motion based on the evidence presented.²

      The courts have held from time to time that the parties to a motion for summary judgment must rely on evidentiary facts.³ This is another way of saying that the parties and the court must rely on admissible evidence. The requirement that the motion for summary judgment, as well as the opposition thereto, must rely on admissible evidence is discussed in chapter 3.

      With one exception, evidence for the purposes of summary judgment is no different from evidence presented at trial.⁴ The exception is the affidavit, which may be employed on summary judgment. Otherwise, an affidavit is considered hearsay; this subject is addressed again in chapter 4. Thus, ‘Evidence’ means testimony, writings, material objects, or other things presented to the senses that are offered to prove the existence or nonexistence of a fact.⁵ This includes evidence that is technically inadmissible, because such evidence has full evidentiary effect in the absence of a proper objection.⁶ (Objections to the evidence in summary judgment are also addressed in chapter 3.)

      There are a number of things that do not qualify as evidence. Opinions are not evidence. Illustrative of material that has been rejected as opinion rather than evidence is a statement that another declarant’s affidavit correctly stated the facts of a motor vehicle accident;⁷ the opinion of an insurance company’s claims representative about coverage under a policy;⁸ and the statement, without any supporting evidence, by the State of California’s Division of Labor Standards Enforcement that a culinary school was not an accredited college.⁹

      Conclusions of law or fact also are not evidence. In an action for personal injuries sustained in a motor vehicle accident, the defendant moved for summary judgment on the ground that the plaintiff’s injuries were covered by workmen’s compensation; the plaintiff responded in her affidavit

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