Moving for summary judgment in California: 60 days in, 81 days' notice, heard 30 days before trial

California's summary judgment statute is the most schedule-driven motion in the Code. Three numbers govern when it can happen, and a fourth requirement — the separate statement — is expressly made a ground for denial on its own.

The companion guide covers the opposing side. This one is about bringing the motion.

The three dates

CCP 437c(a)(1) — when you may move. A party may move "if it is contended that the action has no merit or that there is no defense," and the motion "may be made at any time after 60 days have elapsed since the general appearance in the action of each party against whom the motion is directed," or earlier if the court so directs on good cause, with or without notice.

Sixty days from each target defendant's general appearance — so adding a defendant restarts that clock as to them.

CCP 437c(a)(2) — notice.

• Notice of the motion and supporting papers shall be served on all other parties at least 81 days before the time appointed for hearing.

Plus service extensions: 5 days if the address is within California, 10 days outside California but within the United States, 20 days outside the United States, and two court days for fax, express mail or another overnight method.

CCP 437c(a)(3) — the back end. The motion "shall be heard no later than 30 days before the date of trial, unless the court" orders otherwise.

Put together, a summary judgment motion needs roughly 111 days of runway before trial, and more if service is by mail. That is why the motion has to be planned around the trial date from the moment one is set. The guide on the California discovery cutoff sets out how the rest of the pre-trial calendar interacts.

The separate statement

CCP 437c(b)(1): the motion is supported by "affidavits, declarations, admissions, answers to interrogatories, depositions, and matters of which judicial notice shall or may be taken." And:

The supporting papers shall include a separate statement setting forth plainly and concisely all material facts that the moving party contends are undisputed. Each of the material facts stated shall be followed by a reference to the supporting evidence. The failure to comply with this requirement of a separate statement may in the court's discretion constitute a sufficient ground for denying the motion.

That last sentence is unusual and should be read literally. A defective separate statement is, by itself, enough to lose — regardless of the merits.

The opposition's separate statement — subdivision (b)(3): the opposing papers "shall include a separate statement that responds to each of the material facts contended by the moving party to be undisputed, indicating if the opposing party agrees or disagrees that those facts are undisputed," and setting out any additional material facts the opposing party contends are disputed.

Opposition and reply — subdivisions (b)(2) and (b)(4): an opposition is served and filed not less than 20 days before the noticed or continued hearing date, unless the court for good cause orders otherwise; a reply follows on the statutory schedule.

The standard, and the burdens

CCP 437c(c): the motion "shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law."

In deciding, the court considers all the evidence "except the evidence to which objections have been made and sustained," and all reasonable inferences — "except summary judgment shall not be granted … based on inferences reasonably deducible from the evidence if contradicted by other inferences or evidence that raise a triable issue."

CCP 437c(p) allocates the burdens explicitly, which is what makes the motion tractable.

A plaintiff or cross-complainant — (p)(1) meets its burden "if that party has proved each element of the cause of action entitling the party to judgment." Then the burden shifts, and the defendant "shall not rely upon the allegations or denials of its pleadings … but, instead, shall set forth the specific facts" showing a triable issue.

A defendant or cross-defendant — (p)(2) meets its burden "if the party has shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense." Then the burden shifts to the plaintiff on the same terms.

Note "even if not separately pleaded." A defendant may attack an element the complaint did not itemize.

Affidavits — CCP 437c(d): made on personal knowledge, setting forth admissible evidence, showing affirmatively that the affiant is competent to testify. "An objection based on the failure to comply with the requirements of this subdivision, if not made at the hearing, shall be deemed waived."

Summary adjudication

The ordinary route — CCP 437c(f)(1): a party may move for summary adjudication as to

• one or more causes of action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty

— and it "shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty."

That completeness requirement is the constraint. Narrowing a cause of action is not enough; the motion must dispose of one of the four listed things entirely.

Subdivision (f)(2): summary adjudication "may be made by itself or as an alternative to a motion for summary judgment and shall proceed in all procedural respects as a motion for summary judgment" — the same 81 days, the same separate statement, the same everything.

And a bar on re-running it: a party "shall not move for summary judgment based on issues asserted in a prior motion for summary adjudication and denied by the court unless that party establishes, to the satisfaction of the court, newly discovered facts or circumstances or a change of law."

The stipulated route — CCP 437c(t). Notwithstanding subdivision (f), a party may move to adjudicate a legal issue or a claim for damages other than punitive damages that does not completely dispose of anything — but only through a gate:

• (1)(A) Before filing, the parties whose claims or defenses are put at issue shall submit to the court both: (i) a joint stipulation stating the issue or issues to be adjudicated; and (ii) a declaration from each stipulating party that the motion will further the interest of judicial economy by decreasing trial time or significantly increasing the likelihood of settlement.
• (B) The joint stipulation shall be served on any party to the civil action who is not also a party to the motion.
• (2) Within 15 days of receipt, unless the court has good cause for extending the time, the court shall notify the stipulating parties if the motion may be filed — and may consider objections by a nonstipulating party made within 10 days of the submission.

So the narrow-issue motion requires the opponent's agreement plus the court's permission. It is a cooperative device, not a unilateral one.

Continuances for discovery

CCP 437c(h): if it appears from the opposing affidavits "that facts essential to justify opposition may exist but cannot, for reasons stated, be presented," the court shall deny the motion, order a continuance to permit affidavits to be obtained or discovery to be had, or make any other just order.

And the application can be made ex parte: "The application to continue the motion to obtain necessary discovery may also be made by ex parte motion at any time on or before the date the opposition response to the motion is due."

CCP 437c(i) adds a consequence for a movant who stonewalls: if, after granting a continuance for specified discovery, the court determines the moving party "has unreasonably failed to allow the discovery to be conducted," the court shall grant a further continuance or deny the motion.

The section "does not affect or limit the ability of a party to compel discovery under the Civil Discovery Act."

Evidentiary objections, and what survives for appeal

CCP 437c(q):

In granting or denying a motion … the court need rule only on those objections to evidence that it deems material to its disposition of the motion. Objections to evidence that are not ruled on for purposes of the motion shall be preserved for appellate review.

You must make the objections, but you do not need a ruling on each one to preserve them. That removes a trap that used to catch people at the hearing.

Bad faith affidavits, and the exclusions

CCP 437c(j): if the court determines "at any time" that an affidavit was presented in bad faith or solely for the purpose of delay, it "shall order the party who presented the affidavit" to pay as the subdivision provides.

CCP 437c(s): subdivisions (a) and (b) "do not apply to actions brought pursuant to Chapter 4 (commencing with Section 1159)" — that is, unlawful detainer. Those actions have their own, much faster schedule, covered in the guide on responding to a California eviction.

CCP 437c(r): the section "does not extend the period for trial provided by Section 1170.5."

The calendar

A short checklist

1. Work backwards from the trial date. You need about 111 days, and more if you serve by mail.
2. Count 60 days from each target's general appearance, not from the filing of the complaint.
3. Build the separate statement first. Each material fact, plainly and concisely, each followed by a citation to evidence. A defective one is an independent ground for denial.
4. Decide between judgment and adjudication. Adjudication under (f) must completely dispose of a cause of action, an affirmative defense, a damages claim, or an issue of duty.
5. For a narrower legal issue, use CCP 437c(t) — joint stipulation, declarations of judicial economy from each stipulating party, service on non-parties to the motion, and the court's permission within 15 days.
6. Address the burden expressly. Under (p)(2) a defendant must show an element cannot be established or a complete defense exists — and may attack an element that was never separately pleaded.
7. Make your evidentiary objections at the hearing. Under (d) they are waived otherwise; under (q) they are preserved even without a ruling.
8. If you are opposing and need discovery, use (h) — and consider the ex parte route, available up to the day the opposition is due.
9. Do not re-litigate a denied adjudication issue by summary judgment without newly discovered facts or a change of law.
10. In an unlawful detainer, ignore the 60-day and 81-day rules. Subdivision (s) disapplies them.

Where these sections live

• CCP 437c — Summary judgment and summary adjudication
• CCP 1005 — Notice periods for motions
• CCP 2016.040 — Meet and confer declaration
• CCP 2024.020 — The 30-day and 15-day discovery deadlines
• CCP 2024.050 — Motion to extend or reopen discovery
• CCP 2034.230 — Date of the expert exchange
• CCP 998 — Offer to compromise
• CCP 1008 — Reconsideration and renewal of motions

This page explains what the Code says. It isn't legal advice, and the separate-statement formatting requirements in the California Rules of Court are outside what this site reproduces.