Summarized below are some of the more important developments included in this update since publication of the 2016 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.
Alternative Dispositive Motions
Cottle Motion. In Department of Forestry & Fire Protection v Howell (2017) 18 CA5th 154, the court of appeal held that a Cottle hearing in a complex civil case violated due process when plaintiffs were not afforded adequate time to present their prima facie case and cure any deficiencies. See §1.30.
Continuance. In Denton v City and County of San Francisco (2017) 16 CA5th 779, the court of appeal held there was “good cause” to continue a hearing on a motion for summary judgment when a significant, unanticipated change in the status of the case left the plaintiff without counsel and unprepared to oppose the motion. See §3.34.
Availability of Relief
Punitive Damages. In CRST, Inc. v Superior Court (2017) 11 CA5th 1255, the court of appeal directed the trial court to grant an employer’s motion for summary adjudication on the issue of punitive damages because the employee failed to meet its burden to produce “clear and convincing” evidence in support of the claim. See §2.22.
Sufficiency of Evidence. In Gonzalez v Mathis (2018) 20 CA5th 257, the court of appeal reversed summary judgment in favor of defendant in a premises liability case because photos and videos taken 3 years after plaintiff’s workers were injured on the property did not establish that they could have guarded against the inherent risks by using reasonable safety precautions. See §4.29.
In Foltz v Johnson (2017) 16 CA5th 647, the court of appeal affirmed summary adjudication against plaintiff on the issue of duty when the record showed defendant’s actions were insufficient as matter of law to increase the inherent risks of off-road dirt biking. See §4.29.
Separate Statement. Rush v White Corp. (2017) 13 CA5th 1086, the court of appeal held it was not an abuse of discretion for the trial court to grant summary judgment for defendants after affording plaintiffs repeated opportunities to correct their separate statement by providing required pinpoint citations to evidence. See §4.37.
Developing and Proffering Evidence
In Turley v Familian Corp. (2017) 18 CA5th 969, the court of appeal held that it was error for the trial court to disregard a witness declaration on the ground that it contradicted the witness’ deposition testimony when the contradiction was ambiguous. See §8.12.
In Jacobs v Coldwell Banker Residential Brokerage Co. (2017) 14 CA5th 438, the court of appeal held that a party moving for summary judgment could submit additional evidence with the reply papers as long as the opposing party had notice and opportunity to respond. See §8.21.
In Jacobs v Coldwell Banker Residential Brokerage Co. (2017) 14 CA5th 438, the court of appeal held that plaintiffs could not oppose summary judgment on an unpled theory of liability when a defendant or a court reading the complaint would not reasonably anticipate such a claim. See §7.14.
Summary Judgment in Employment Discrimination Cases
Mixed-motive Cases. In Husman v Toyota Motor Credit Corp. (2017) 12 CA5th 1168, the court of appeal applied Harris v City of Santa Monica (2013) 56 C4th 203 to hold that a mixed-motive discrimination claim is not properly resolved on summary judgment if triable issues of material fact exist whether discrimination was a “substantial motivating reason” for the defendant’s adverse employment action. See §13.16.
In Light v California Dep’t of Parks & Recreation (2017) 14 CA5th 75, the court of appeal reiterated that evidence of pretext is not required to defeat a summary judgment motion; the central issue is whether the evidence as a whole supports a reasoned inference that the employer engaged in unlawful discrimination. See §13.19.
Evidence of Pretext. In Cornell v Berkeley Tennis Club (2017) 18 CA5th 908, the court of appeal held that evidence showing a manager harbored discriminatory animus and was involved in plaintiff’s termination raised a triable issue of material fact as to whether defendant’s proffered reason for the termination was pretextual. See §13.18.