Summarized below are some of the more important developments included in this update since publication of the 2019 edition.
All amendments, repeals, and additions to California statutes and Rules of Court were integrated into the text. Attorneys should be aware that electronic filing is permissible in many of the superior courts across the state, and a number of courts have made it mandatory in some proceedings. Attorneys should review local court rules to determine whether electronic filing is required in particular proceedings.
Certain procedures and deadlines in the text may be affected by the California Rules of Court Emergency Rules Related to COVID-19 (particularly Rules 1, 3, 9, 10, 11, and 12). The Emergency Rules remain in effect until 90 days after the Governor declares that the state of emergency related to the COVID-19 pandemic is lifted, or until amended or repealed by the Judicial Council. The Emergency Rules can be viewed at https://www.courts.ca.gov/documents/appendix-i.pdf. Counsel should also consult the website of the court in which the action is pending to determine whether any emergency provisional measures have been enacted for that court.
An error in §3.30 regarding the time for filing opposition papers to certain motions has been corrected. Code of Civil Procedure §1005, which does not apply to summary judgment motions, requires opposing papers to be filed with the court at least 16 court days before the hearing. The text previously read 9 court days.
In a product liability action alleging that the plaintiff developed mesothelioma from the use of defendant’s cosmetic talcum powder, plaintiff presented expert testimony providing substantial evidence that the defendant’s product contained asbestos, creating a triable issue as to a material fact disputed by the defendant. Lyons v Colgate-Palmolive Co. (2017) 16 CA5th 463, 471. Lyons was distinguished in Berg v Colgate-Palmolive Co. (2019) 42 CA5th 630, 636 (defendants in Lyons and Berg used declarations from the same expert; but in Lyons it established “more than an unsupported possibility” that use of defendant’s product exposed plaintiff to asbestos, whereas in Berg, it only established a “possibility” of exposure). See §§4.38, 4.39.
In an asbestos exposure case, defendant’s motion for summary judgment was granted based on an expert’s declaration that the defendant manufacturer’s talcum powder and the talc from its source mines did not contain asbestos. The plaintiff did not provide a rebuttal expert’s declaration, and the court held that plaintiff was required to provide expert testimony regarding the presence of asbestos in defendant’s products. LAOSD Asbestos Cases (2020) 44 CA5th 475, 489. See §4.39.
In Kim v County of Monterey (2019) 43 CA5th 312, the trial court granted summary judgment to a raceway manager and the county on claims of gross negligence and, as to the county, injury caused by a dangerous condition of property brought by a participant in a motorcycle event who was injured by a collision with a sandbag that had been placed near the track for erosion control. The court of appeal reversed and remanded. The court held that although the participant assumed risks inherent to the sport under the primary assumption of risk defense, which is available to a public entity, triable issues existed as to whether placing sandbags near the track substantially increased the risk of injury beyond inherent risks. Whether or not professional racing standards applied to an amateur event, the standards were informative and could be considered in determining whether failure to remove obstructions was a breach of duty amounting to gross negligence. See §4.39.
In Perry v Bakewell Hawthorne, LLC (2017) 2 C5th 536, 538, the California Supreme Court held that when the trial court determines an expert opinion is inadmissible because disclosure requirements were not met, the opinion must be excluded from consideration at summary judgment if an objection is raised. More recently, in Sweetwater Union High Sch. Dist. v Gilbane Bldg. Co. (2019) 6 C5th 931, the court cited Perry with approval, and explained further that the summary judgment statute requires evidence provided in declarations to be admissible at trial; because expert disclosure requirements in Perry were not met, the evidence was rendered “incurably inadmissible at trial.” See §5.30.
In Kerns v CSE Ins. Group (2003) 106 CA4th 368, 372, the court held that a second motion for summary judgment, although before a different judge, was identical in all respects to the one previously denied, and thus the trial court exceeded its jurisdiction by entertaining that renewed motion. In Daley v Regents of Univ. of Cal. (2019) 39 CA5th 595, the court distinguished Kerns, noting that the moving party in Daley did not file identical summary judgment motions, but rather a trial brief and then a summary judgment motion. See §12.45.
At the summary judgment stage in employment discrimination cases brought under the Fair Employment and Housing Act (FEHA) (Govt C §§12900–12996), the courts use the burden-shifting framework set out by the U.S. Supreme Court in McDonnell Douglas Corp. v Green (1973) 411 US 792, 93 S Ct 1817. Once the plaintiff has established a prima facie case, the employer must produce evidence of a nondiscriminatory reason for its action. To avoid summary judgment, an employee claiming discrimination must then offer substantial evidence that the employer’s stated nondiscriminatory reason for the adverse action is untrue or pretextual, or evidence that the employer acted with a discriminatory animus, or a combination of the two, such that a reasonable trier of fact could conclude that the employer engaged in intentional discrimination. The McDonnell Douglas burden-shifting framework does not apply, however, where the plaintiff presents direct evidence of discrimination. See Glynn v Superior Court (2019) 42 CA5th 47 (plaintiff’s employment was terminated by a temporary employee in Allergan’s benefits department who mistakenly believed plaintiff had applied for long-term disability and could no longer work; this direct evidence of disability discrimination made McDonnell Douglas framework inapplicable, and grant of summary adjudication in employer’s favor improper). See §13.16.