[author: Liam Sidebottom]
The obvious preference for the average person is never to be involved in litigation. For those forced to become party to a lawsuit, however, the dream then becomes prevailing on a motion for summary judgment. With such a motion, a party argues to the court that there are no substantive factual disputes left to adjudicate and that, under the agreed-upon facts, it is entitled to judgment as a matter of law.1 If the motion is granted, the moving party prevails as to the claims that are the subject of the motion.
The Code of Civil Procedure has various procedural requirements the parties must adhere to in litigating motions for summary judgment, including the filing of separate statements of material fact and the inclusion of documentary evidence.2 Section 437c also contains restrictions on the timing of filing the requisite moving papers. At present, the moving party must file all papers at least 75 days before the date for the hearing on the motion.3 All opposition papers are to be filed at least 14 days before the hearing and any reply on behalf of the moving party must be filed at least 5 days before the hearing.4
On July 15, 2024, however, a bill was signed into law which aims to change the filing deadlines outlined above. Assembly Bill (“AB”) 2049 changed the deadline for a party to file for summary judgment to at least 81 days before the hearing on the motion.5 Any opposition must be filed at least 20 days before the hearing and any reply on behalf of the moving party must be filed at least 11 days before the hearing.6
AB 2049 also introduced two substantive limitations not explicitly provided for at present. First, the bill prohibits any party from filing more than one motion for summary judgment against an adverse party without obtaining leave of court.7 Second, the bill prohibits any mention of facts in a reply that were not introduced in the motion or opposition.8
As AB 2049 will become effective as of January 1, 2025, it is important for lawyers and their clients to understand these changes and the impact they are likely to have.
HOW WILL IT IMPACT SUMMARY JUDGMENT
- Changes to Timing.
The first change occasioned by AB 2049 is relatively minor. The bill moves the filing deadlines for motions, oppositions, and replies back six days from the deadlines currently provided for, requiring such papers to be filed just under a week earlier than was required in the past.9 In light of the time change being both minor and uniform across all required filings, this change is likely to have little if any impact on summary judgment proceedings. Still, it is important for attorneys to remember the new filing deadlines so as not to violate them by sticking with the old ways.
- Limitations on Multiple Filings.
One of the more impactful restrictions is the limitation on the number of summary judgment motions litigants are permitted to file. In the past, parties were not restricted in their ability to file numerous summary judgment motions. Under the new regime, however, litigants “shall not bring more than one motion for summary judgment against an adverse party to the action or proceeding.”10
This change will impact attorneys’ strategies when it comes to seeking summary judgment. Under the previous version of section 437c, lawyers were able to engage in a more piecemeal motions practice, targeting individual elements or causes of action as new evidence arose. Under the new framework, however, this will not be permitted. Instead, attorneys will have to wait until the bulk of pretrial discovery is complete before contemplating a motion for summary judgment so as not to act too early and lose the ability to prevail on multiple claims as more evidence is discovered.
While this change is likely to impact motion strategy, attorneys should not be afraid to file a dispositive motion until the very last minute. AB 2049 includes an escape hatch to this new restriction, providing that, “on motion or application of any party and a showing of good cause, the court may grant leave for the moving party to bring an additional motion for summary judgment.”11 Thus, while AB 2049 may limit piecemeal motions practice and certain filing strategies, it does not close the door on parties who have good reason to file a second motion, including the discovery of evidence not reasonably available at the time of their initial filing.12
- Restriction on the Contents of Reply Briefs.
Another substantive change occasioned by AB 2049 is an express restriction on the content of movants’ reply briefs. Under the amended section 437c, a reply brief may “not include any new evidentiary matter, additional material facts, or separate statement submitted with the reply and not presented in the moving papers or opposing papers.”
While this change may seem meaningful, in reality it does little more than codify a principle long recognized in summary judgment litigation. Prior to AB 2049, the general rule applied by the courts was that “a party moving for summary judgment may not rely on new evidence filed with its reply papers” which was not included in the initial motion or the opposition.13 Under the old scheme, however, parties still had ways to introduce such evidence. For example, a party’s “failure to object to new evidence” could result in “a forfeiture which permits the court to consider the new evidence.”14 Additionally, a court, in its discretion, could consider the new evidence if the party opposing summary judgment had adequate notice and an opportunity to respond.15 Nothing in the amended section 437c suggests that the same exceptions will remain once AB 2049 goes into effect in January 2025.
IS THE CHANGE GOOD OR BAD?
The changes to section 437c are not necessarily good or bad in an objective sense, at least for the most part. On the whole, however, the amendments made to the section are likely to provide litigants some benefits, even if only marginal.
The one clear benefit comes from the aspect of AB 2049 which appears least impactful on its face. The amendment’s adjustment of filing deadlines back six days from the current deadlines provides courts with an additional week to consider each filing and the merits of the parties’ arguments. Ideally, this will lead to rulings which are less rushed and more reasoned, which should benefit all parties regardless of their support for or opposition to a motion in an individual case.
The change to the number of filings permitted under the amended section 437c is also likely to be of some benefit to litigants. The restriction will prevent parties from filing numerous motions which must be reviewed and responded to, allowing more time to be spent moving a case toward resolution or preparing it for trial. Further, any fears about missing an opportunity to seek summary judgment when new evidence comes to light should be adequately addressed by AB 2049’s inclusion of an exception to the general rule upon a showing of good cause.
Finally, the codification of the general rule against including new evidence in reply briefs is likely to have little substantive impact. As noted above, courts long have adhered to this principle, and its inclusion in section 437c is likely to have little effect. Still, the lack of exceptions to the rule in the amended statute should provide parties opposing summary judgment motions some additional certainty that they will not be blindsided by evidence that they were not provided a chance to respond to in their oppositions.
CONCLUSION
For the first time in two decades, California’s legislature has made substantive changes to the summary judgment process. The deadlines for filing such motions were changed, the number of motions parties are permitted to file was reduced, and the ability of parties to surprise the opposition with the late introduction of new evidence was—now formally—curtailed. In all, the changes made were small but positive.
It is important for lawyers and their clients to be aware of the changes occasioned by AB 2049, especially with respect to the deadline changes and the limitation on the number of summary judgment motions parties can file. Attorneys should be cognizant of the change in time for filing of moving papers so that they do not fail to comply with the new requirements by relying on now-outdated timelines that have been ingrained in their minds for the last twenty years. Additionally, attorneys and their clients will need to think strategically about the timing of their motions practice, making sure to balance the desire to summarily dispose of issues early with the knowledge that, in many cases, parties will now have only one shot at obtaining summary judgment. As always, it is important to consult personally with an attorney to assess what effect these changes may have on your case.
It is always exciting to see change, especially in an area of law that has remained largely unchanged for many years. Thankfully, the changes discussed here appear largely to be positive ones.
1Code Civ. Proc. § 437c, subd. (c).
2Id. at subd. (b)(1).
3Id. at subd. (a)(2).
4Id. at subds. (b)(2), (4).
5See AB 2049 [available at https://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=202320240AB2049].)
6Ibid.
7Ibid.
8Ibid.
9Code Civ. Proc. § 437c, subds. (a)(2), (b)(2), (b)(4) [as amended by AB 2049].
10Id. at subd. (a)(4).
11Id. at subd. (a)(5).
12Id. at subd. (b)(4).
13Moore v. William Jessup University (2015) 243 Cal.App.4th 427, 432 n. 3 [citing San Diego Watercrafts, Inc. v. Wells Fargo Bank (2002) 102 Cal.App.4th 308, 316].
14Ibid. [citing Jimenez v. County of Los Angeles (2005) 130 Cal.App.4th 133, 140].
15See Jacobs v. Coldwell Banker Residential Brokerage Co. (2017) 14 Cal.App.5th 438, 449.
