Reversing Summary Judgment, Court Faults Respondent for "Specious"​ Assertions That "Wholly Mischaracterize"​ Ruling and Appellant's Arguments

Timothy Kowal, Esq.
March 16, 2021

All attorneys know appeals are an uphill climb. But that is not really true of appeals of summary judgments. Not only are summary judgments reviewed de novo, but the court strictly construes the moving papers, liberally construes the opposing papers, and reviews the evidence in a light most favorable to the appellant.

Sensing reversal of its summary judgment, the respondent in Lubke v. Automobile Club of S. Cal. (D2d7 Jan 6, 2021) No. B302782, engaged in desperate arguments that earned it some unfavorable comments in the Second District's opinion.

We are used to seeing appellate courts take a critical view toward an appellant's arguments. Here, however, the Second District took the respondent to task for its less-than-candid arguments attempting to rehabilitate a moribund judgment. The court faulted respondent for "wholly mischaracteriz[ing] the court's ruling," and making an "equally specious assertion" about appellant's argument.

In Lubke, plaintiff was a stranded motorist who, while waiting over two hours for the Auto Club to send a tow, was injured by another motorist. Plaintiff argued his injuries were the fault of both the Auto Club and the other motorist. The Auto Club sought summary judgment on the basis of plaintiff's response to a request for admission that the Auto Club "did not cause the INCIDENT."

The trial court, however, conceded that, in light of plaintiff's other discovery responses explaining that the Auto Club's delay was a substantial factor in the accident, plaintiff could amend his response to the request for admission. Instead, the trial court ruled that plaintiff's case against the Auto Club was based on a theory of duty that the trial court found untenable.

Summary Judgment May Not Be Based on Any Issue on Which the Opposing Party Was Not Provided Notice: While a trial court has discretion to grant summary judgment on a ground not identified by the moving party, to comply with due process "the party opposing the motion must be provided an opportunity to respond." Here, that did not happen. There was nothing that relieved the Auto Club of its obligation to provide notice of any issue that would be presented by its motion or justified a grant of summary judgment absent identification of undisputed material facts related to those issues in the Auto Club's separate statement. (See City of Pasadena v. Superior Court (2014) 228 Cal.App.4th 1228, 1238, fn. 4 ["'"[t]his is the Golden Rule of Summary Adjudication: if it is not set forth in the separate statement, it does not exist"'"].)

And besides, the trial court was mistaken about the law: the Auto Club may have a special relationship arising out of a contractual duty.

Respondent Has a Duty of Candor, Too: Seeing its summary judgment floundering, the Auto Club sought to recast the trial court's ruling as based on the issue of causation, rather than duty.

This got the respondent Auto Club into some hot water: "The Auto Club's contention the trial court granted its motion based on Luebke's inability to prove causation, as well as the absence of any duty, wholly mischaracterizes the court's ruling. ... The discussion after the court stated there were no disputed issues of fact concerned duty, not causation." The court also faulted respondent for its "equally specious assertion" that plaintiff-appellate had failed to address causation.

After remand, there may be another opportunity in this case for an appeal, and before the same panel. Persuasion is a tough business as it is. Conducting that business before jurists who remember you as having made "specious" arguments that "wholly mischaracterize" the court is tougher still.

Tim Kowal helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at, and publishes a newsletter of appellate tips for trial attorneys at Contact Tim at or (714) 641-1232.