Appeals and Summary Judgments: California Appellate Podcast Episode 3 (Jul. 20, 2020)

Timothy Kowal, Esq.
July 20, 2020

TVA's Tim Kowal is a co-host of the California Appellate Law Podcast. To listen or subscribe, click here.

This episode of California Appellate Law Podcast discusses cases, procedure and common pitfalls in appeals involving summary judgments.

Listen here.

Appellate Specialist Jeff Lewis' biography and background.
Appellate Specialist Tim Kowal's biography and background.

Cases mentioned in this episode

Ung v. Koehler (2015) 135 Cal.App.4th 186
Mosley v. Pacific Specialty Ins. Co. (2020) 49 Cal.App.5th 417
Sosa v. CashCall, Inc. (2020) 49 Cal.App.5th 42
Union Bank v. Superior Court (1995) 31 Cal.App.4th 573
Bayramoglu v. Nationstar Mortgage LLC (July 1, 2020, No. C084299)
Ayon v. Esquire Deposition Solutions, LLC (2018) 27 Cal.App.5th 487
D'Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1
McAlpine v. Norman (June 22, 2020, No. C088327)
Lowery v. Kindred Healthcare Operating, Inc. (2020) 49 Cal.App.5th 119
Bahl v. Bank of America (2001) 89 Cal.App.4th 389, 395
Levin v. Ligon (2006) 140 Cal.App.4th 1456
Rush v. White Corp. (2017) 13 Cal.App.5th 1086
Lourick v. Hunt & Henriques, (June 26, 2020 No. C086203 [unpublished]
Pacifica First National, Inc. v. Abekasis (June 15, 2020, No. B298292)

Other Resources Mentioned in the Episode
111 N. Hill Street Blog of Civil Procedure
Latest LA Superior Court press release about COVID-19 and trials
California State Bar announcement regarding Fall 2020 Bar Exam


Tim Kowal : 0:04

reading this case I was reminded of Esposito an old Woody Allen movie bananas. He declared that all children under 16 years old, are now 16 years old. Unknown Speaker : 0:14

Welcome to the California Appellate Law Podcast, a discussion of timely trial tips and the latest cases and news coming from the California Court of Appeal, and the California Supreme Court. And now your hosts, Tim Kowal and Jeff Lewis. Jeff Lewis : 0:29

Welcome, everyone. I'm Jeff Lewis. Tim Kowal : 0:30

And I'm Tim Kowal. In each episode of The California appellate law podcast, we provide trial attorneys with legal analysis and practice tips from an appellate perspective. Both of us are appellate specialists who split our practices evenly between trial and appellate courts. We both work directly with trial attorneys before, during and after trial to prepare cases for appeal. In this podcast, we offer some of that appellate perspective on various issues that arise in trial court and on appeal So welcome to the third episode of The California appellate law podcast. This time we'll be focusing on summary judgment motions. MSJ's are pretty bread and butter as far as trial practice goes. So I suspect some listeners might be doubtful we can tell them much that they don't already know. What do you think, Jeff? Jeff Lewis : 1:18

Well, I would disagree. In fact, you sent me some of over the some of the cases that we're gonna be discussing today, and I learned some things I didn't know and I've been practicing over 20 years, I would say, after anti slap motion. for summary judgment motions are the procedure that contain the most traps for the unwary. Let's start with some of the basics about summary judgment procedure as to appeals. Normally an order granting summary judgment or adjudication is not directly appealable. Instead, if somebody wants to appeal they have to appeal the judgment following the granting of such an order. Tim Kowal : 1:51

Yes, and that's one of those rules that tells a lie, because sometimes an appellate court will forgive a party that appeals a summary judgment or rather than waiting for the judgment itself, and then we'll just deem that order appealable. That's what happened in the 2015 case of ung vs. Kohler out of the first district division one. In that case, a secured lender recorded a deed of trust against the defaulted borrowers real property. And the borrower believed that the lender should not be able to enforce the loan because that loan had been in default for about a decade. And that's it should have been time barred. So, the borrower filed suit to enjoin the lender from foreclosing and the plaintiff borrower filed an mSj. And the court granted it. But before the trial judge could enter judgment, the defendant lender rushed ahead and appealed. So you can already see the problem here because an order granting summary judgment is not appealable. You're supposed to wait for the judgment. Jeff Lewis : 2:48

Right. At that point, I'd file a motion to dismiss the appeal for lacking jurisdiction. Tim Kowal : 2:52

Well, what happened here is in a footnote, the court acknowledged that the order was of course, obviously not appealable And what are you thinking appealing the order granting summary judgment instead of the actual judgment, but discreetly handling the matter tucked away in a footnote, the first district side of the case that had deemed an order granting summary judgment to be tada a judgment. And it cited another case that simply deemed an order granting summary judgment to be appealable, which in my eyes does a little more violence to the rules of appealability. But there you go. The parties apparently agreed that the court could review the order. So the court just deem the non appealable order here to be appealable. Jeff Lewis : 3:33

I wonder, Tim, if the parties had not stipulated, and the respondent had done what I suggested, which is, you know, make a motion to dismiss the appeal for lack of jurisdiction. I wonder if the court would have granted the motion for lack of appellate jurisdiction? Tim Kowal : 3:48

You know, I don't think so. other cases have been pretty emphatic that parties can't stipulate to manufacturer, appellate jurisdiction. So I really don't think the parties agreement amounted to a hill of beans here. The court had its appealability analysis socked away in an inconspicuous footnote. And then it just proceeded to reverse. The court not wanted to reverse you can bet the appeal simply would have been dismissed on non appealable non appealability grounds. But the court obviously did want to reverse. And when a Court of Appeal wants to reverse an order, you can expect that the order will be deemed appealable. Or else the appeal will just be deemed a repetition. reading this case, I was reminded of Esposito in the old Woody Allen movie bananas after Esposito made himself the new president of San Marcos and said, he declared that all children under 16 years old are now 16 years old. Jeff Lewis : 4:41

Alright, so the next summary judgment case we wanted to cover today was Mosley versus Pacific specialty insurance company 20. It's a 2020 decision. And but before we jump into the facts of Mosley, I want to cover the basics of burden shifting in a summary judgment case, and a summary judgment, motion the movie Part of normally the defendant has an initial burden to prove to the trial court that the case has no merit. If the moving party fails to meet that burden, then the motion is supposed to be denied without regard to what evidence or arguments are raised by the opposing party, usually the plaintiff, if the burden is met by the defendant, then the burden of proof shifts to the plaintiff to prove a tribal issue of fact exists, that warrants going to trial. Now getting back to the Mosley case, the majority reversed to summary judgment below. Based on the theory that had not been argued at the trial level. There was a dissenting opinion in this case, pointing out that reversing on grounds not raised below creates a new rule of appellate procedure. I don't know that I agree with the dissent here. Courts of Appeal frequently have the option to look at questions of law for the first time on appeal. And I tend to side with the majority on this one, the majority and mostly held that the defendant simply did not meet its initial burden. What about you, Tim? Tim Kowal : 6:00

You know, I think I actually do agree with Justice minetta as his dissent here, maybe not for the reasons that are articulated in the dissent, though, I do agree with you that legal conclusions usually may be affirmed on any available grounds. And the Court of Appeal is not limited to the grounds cited by the trial court in most cases. But summary judgments are different because they have a special procedure with special requirements. One of those special procedures is that the party opposing the summary judgment motion has the right under Section 437 c subdivision age, to seek discovery, if that discovery is denied, that may pose an independent grounds for reversal. So when the court reached for a different legal theory to affirm the summary judgment here, I think the court effectively excised that important discovery safeguard from the statute. That is not something raised in the dissent, but it is an argument that I would have made Jeff Lewis : 6:57

well, let me push back on you for a minute on that one. put you on the spot. But let me just ask when you are making a motion to ask for discovery in the face of summary judgment motion, are you asking for discovery to help you shift your burden as a plaintiff and avoid summary judgment? Are you looking for discovery to avoid the plaintiffs the defendants ability to meet their initial burden? Because if it's the latter, then maybe that's not a concern in terms of the result that happened here. Mostly. Tim Kowal : 7:25

If the burden gets shifted back onto you, and the Court of Appeal decides that you didn't meet your burden, you would want to be able to argue that you availed yourself of the or attempted to avail yourself of the those discovery rights under subdivision h by seeking discovery as to those issues so that the court couldn't fault you for not satisfying your burden if and when it did get shifted to you. Yeah. So I think that's a that's a good reason to always consider filing a motion for discovery. Under subdivision, h when opposing a summary judgment motion. In that motion, I would specifically enumerate the legal theories that were advanced in the motion. And I would state that, that I specifically intend to conduct discovery on them so that if ever any new theories are advanced, I would lay on the indignation good and thick, emphasizing all the discovery that I tried to do based on the stated legal theories, so that I couldn't be faulted for not having opposed secret undisclosed legal theories. Jeff Lewis : 8:25

You know, you make a good point, maybe even going so far as to attach proposed discovery that you would, would serve if the motion were granted. Tim Kowal : 8:35

That's what I would do. Yeah. And I think we find a similar lesson about discovery and MSJs and our next case, which is a published 2020 decision, Sosa versus cash call. In a split decision. The fourth district Division Three Court reversed a summary judgment on the grounds that plaintiff had been denied discovery. What is noteworthy in this case is that the majority of voids The question of standard of review. As we know trial court orders relating to discovery are normally revert reviewed for abuse of discretion. But the majority here simply never mentions what the standard of review is. Instead, the majority appears to review the discovery issue under a de novo lens indicating the trial court had erred in its discovery ruling, not abused its discretion but erred. In his dissent. Justice Aronson says that at worst, he thought the trial court's ruling was a close call, but certainly not an abuse of discretion. So I think the result in the Sosa versus cashcall case suggests this strategy. If you've lost a motion for summary judgment, because you were denied discovery of relevant evidence, frame the issue as a violation of 437 c subdivision C. That subdivision requires the trial court to consider, quote, all inferences reasonably deducible from the evidence and quote, and it also requires that the court Must, quote, resolve doubts about the propriety of granting the motion in favor of the party opposing it. And quote, The Sosa court held that under these standards, the trial court's order denying discovery amounted to legal error. So again, if there is discovery you're having trouble getting consider seeking it in connection with the opposition to an mSj. The statutory procedures under 437 C, appear to entitle the party seeking discovery to a more favorable standard of review on appeal. Jeff Lewis : 10:30

Yeah, that's great advice. I think I'm going to start incorporating that into my strategy going forward. There's no doubt that discovery can make or break a summary judgment motion back in 1995. Division five of the second district issued its decision in Union Bank versus Superior Court, holding that a defendant in moving for summary judgment may rely on a plaintiff's factually devoid discovery responses to meet the defendants initial burden of demonstrating a cause of action has no merit. For example, when a party responds and discovery that the case was just filed or discoveries continuing, but no real facts are disclosed, a defendant may attach such discovery responses to the moving papers and meet their initial burden for summary judgment. Let me ask you a question, Tim. What would you think would happen when a defendant serves interrogatory ease and the plaintiff instead of answering those interrogatory points to documents that have been produced in the litigation? Is that a factually devoid discovery response for purposes of Union Bank? Tim Kowal : 11:35

It sounds like you're talking about the responding party's right to respond to an interrogatory by identifying documents from which the answer would be derived. No, that would not be considered a factually devoid response that could support the moving party's burden on summary judgment. And that precise situation was brought up recently in I'm going to I'm going to try real hard with this name. By mcglue versus nation's star mortgage LLC. That's a third district decision that held that litigants are entitled to invoke that discovery procedure that we talked about under code of civil procedure 2030 to 30, by pointing to documents in lieu of responding. Jeff Lewis : 12:19

You know, I have to say under the facts of that case, I think that case was rightly decided, but I could see this being abused, where you have a large deep pocket party on one side that buries the other side, thousands and thousands of documents. It doesn't precisely point to a page or a discrete number of pages and just says, hey, go look at the documents. I could see a good faith argument being raised that those are factually devoid discovery responses. Tim Kowal : 12:47

I think that's a fair point. Now, let me move on to what what is my favorite recent summary judgment case? This is the 2018 case of Ayaan versus Esquire deposition solutions. It's another case out of the fourth third. And it's also another case involving summary judgments and burden shifting. ayyan is a personal injury plaintiff in that case who was in a car crash with the deposition scheduling manager for Esquire, at the time of that accident, the scheduling manager had been on the phone with an Esquire court reporter. So that is the plaintiff's hook for vicarious liability, obviously, but Haha, not so fast as Esquire, at her deposition, that scheduling manager had testified that she and the court reporter were close friends, they talked on the phone every week, and that the phone call during the accident had actually nothing to do with esquires business. Esquire uses that deposition transcript testimony to file an mSj, arguing that there could be no vicarious liability in the trial court granted summary judgment on appeal. Plaintiff argued that the schedulers phone records showed no calls with the court reporter in the past six months, so plaintiff argues But this created a tribal issue over the schedulers deposition testimony about whether the phone call during the accident had been personal or whether it was work related so as to establish or tend to create a tribal issue concerning vicarious liability. But the Court of Appeal rejected plaintiff's argument and affirm the summary judgment. The courts reasoning was that once a moving defendant meets its burden on a motion for summary judgment, the opposing party cannot rely on mere attacks on credibility. The court noted that plaintiff had not supplied any other evidence to support its respondeat superior theory and poking holes in a defendant's evidence tending to disprove plaintiff's theory will not be regarded as evidence in favor of that theory. As attorney and blogger Michael Shipley, put it in his 111 North Hill Street blog. I don't believe you is not evidence. Jeff Lewis : 14:56

You know, there's a simple rule that summary judgment cannot be avoided. merely by submitting a declaration from a witness that contradicts the witness's previous testimony. It Dimmick Joe versus Board of Medical Examiners from 1974. But for that rule to apply has to really contradict that can't be ambiguities from which inferences of inconsistency could be drawn. And that comes from another case surely the familiar incorporation from 2017. One more burden shifting case is McAlpine versus Norman from 2020. This is a medical malpractice case where a doctor moved for summary judgment in a case brought by a patient. The doctor's moving papers included a declaration by an expert physician who reviewed medical records and stated a simple conclusion. So far so good. The doctor said that the underlying defendant accused of medical malpractice had performed within the standard of care. The problem here was the declaration didn't really have any analysis or supporting facts. It was just a conclusion. saying I've looked at the records and defended doctor acted within the standard of care. The patient oppose the motion, but didn't have any opposing medical expert declaration. On that basis, the trial court granted summary judgment. The patient appealed and the Court of Appeal reversed. And the question resolved this case, which was, what evidence does defendant in a medical malpractice need to meet his initial burden in a summary judgment and shift the burden to the plaintiff to establish a travel issue? In fact, the answer in this case was that when a medical expert offers a standard of care opinion, the expert has to provide the court with more than a simple conclusion that the standard of care was met. The expert expert has to have a reasoned opinion and it has to be supported with facts. Tim Kowal : 16:47

You know, Jeff, when you brought this case to my attention, it reminded me there's a there's a published case recently the held something similar, I don't have the the case name off the top of my head, but we'll put that in the show notes. But I do recall that that case held for the defendant. It was a medical malpractice case where the plaintiff opposed nursing homes motion for summary judgment on the basis of a doctor's conclusory declaration, and the trial court granted summary judgment, and the first district affirmed finding that the declaration failed to meet the sargan standard for expert opinion. Jeff Lewis : 17:22

All right, let's shift gears here again and talk about when and whether a plaintiff should seek continuance in response to a summary judgment motion. Code of civil procedure section 437. cs drafters included a provision making continuances, which are normally a matter within the broad discretion of the trial court virtually mandated upon a good faith showing by affidavit that a continuance is needed to obtain facts essential to justify opposition to the motion. That's the ball v Bank of America case from 2001. Making that request virtually mandatory. The court also has the discretion to deny the mSj in its entirety on this in its entirety on the same basis, if it appears from the affidavits submitted in opposition to a motion for summary judgment or summary adjudication or both, that the 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 order as maybe just that procedure is very pro plaintiff. But I don't see invoked frequently in the cases I'm involved in. How about you, Tim? Tim Kowal : 18:34

No, we don't see discovery motions much in our MSJ practice, either. But after reading the cases that we've been discussing today, I don't know why that is because I now tend to think that when a mSj is filed against my client, it may be a good opportunity to get critical discovery quickly and painlessly. And if I don't get what I asked for, I may be entitled to something like favorable de novo review on appeal rather than the uphill climb of abuse of discretion. And that's because section 437 c subdivision h seems to limit the courts discretion on Discovery rulings when it is sought in connection with opposing a motion for summary judgment. I think a non moving party could get away with much more discovery in this situation than normal. What do you think? Jeff Lewis : 19:18

Yeah, I think you're right. Either they get more discovery than they otherwise would be entitled to, or they present their appellate lawyers with another additional argument to raise on appeal, so it's a win win. Tim Kowal : 19:29

Well, let's wrap up our discussion on MSJ's with some appellate tips on how to make a good record for your summary judgment. First, make your evidentiary objections, make them in writing and then raise them again at the hearing. Do not let the judge leave the bench without getting rulings on your evidentiary objections. Next, in making your evidentiary objections, be sure to preserve objections to authenticity of documents. In the absence of an objection, the document will be deemed authentic under evidence because 1414 and the issue will be waived on appeal. That's the 11 vs. lygon 2016 case. All cases referenced in the podcast are in the show notes. Similarly, under Section 437 C, subdivision D, that section expressly states that if you're objecting to the foundation of declarations and you do not make that objection at the hearing, the objection is deemed waived. So again, make sure you reiterate your objections after hearing. Jeff Lewis : 20:29

Yeah, and as you know, the most important document in making or posing a summary judgment is a separate statement, you brought this case, in this rule to my attention that I was completely unaware of, that the separate statement has to be, quote, plain and concise, close quote. I can't tell you how many cases I've been involved in where either the moving or the opposing side throws in everything but the kitchen sink in you'll have hundreds and hundreds of facts and each fact supported by either nine different declarations. But this case you pointed me to Russia v. White Corp gives the court discretion to completely disregard a separate statement that is not plain and concise. That was really eye opening to me. Tim Kowal : 21:17

Let me ask you something about that, Jeff. What I've done in my practice is I have tried to comply with the plain and concise requirement by pinpointing the evidence that is directly supportive of my undisputed fact. But when I have additional evidence that I think is secondarily supportive, I will put that in a second paragraph with a C citation so as not to obscure from the directly relevant evidence but so as not to waive my right to rely on that evidence at the hearing or on appeal. What do you think about that? Well, that run afoul of the plain and concise limitation. You know, it depends. I wonder how long your your opposition was and if it unnecessarily turned your separate time. statement from a five page separate statement to a 15 page separate statement because of all your See also cites. Yeah difficult call for practitioners to make them. Jeff Lewis : 22:11

Another point Trial Lawyers need to remember in terms of summary judgment is the proposed order. First of all is preparing a proposed order in advance ensuring it complies with the requirements of the statute code Civil Procedure section 437 C, subdivision g order must specify one or more of material facts on which there's a controversy if it's emotion if it's an order denying emotion, and the order has to specifically refer to the evidence if it's denying a motion. In orders granting summary judgment must specify the reasons for its determination and spell shall specifically refer to the evidence showing no tribal issue. So if the court grants a motion for summary judgment, do not set up an appeal by letting the court enter a defective order. And also, the court might refer to the evidence Supporting the order orally. So it's very important this kind of motion to have a court reporter present. Tim Kowal : 23:06

As a related point, do not put in your proposed order that the order granting summary judgment is based on, quote the courts entire file. I've seen that. Well, most practitioners probably use a motion template that has that verbiage in the Notice of Motion and probably just put that into the order for good measure. But do not use that in the MSG notice. 437 C. subdivision B seven requires that a motion for summary judgment, quote, shall set forth with specificity, the exact matter to which reference is being made and shall not incorporate the entire file. So it leaves no question that the legislature does not want the trial court being made to suffer through the entire file looking for evidence in ruling on these motions. Also, judicial notice, or judicial admissions are in any way involved in your mSj review. Those doctrines carefully. If evidence qualifies as judicial notice or as a judicial admission, the evidence cannot be controverted. But if the trial court Miss applies those doctrines and erroneously deems your evidence to be uncontroversial your summary judgment may be susceptible to attack on appeal. Jeff Lewis : 24:19

Well, that concludes our discussion of summary judgment motions. Let's discuss some of the recent legal news this week. Things are changing rapidly with respect to the COVID virus and the LA Superior Court issued a new order indicating they're not conducting any civil trials until August 10. at the earliest, and trials that are neither entitled to preference and that are not UD or unlawful detainer trials. Those aren't going to trial until 2021. So the slowdown continues. A case that caught my eye recently was Lauric vs huntin and requests issued by the third district court of appeal. This case caught my eye because it's a case involving California's anti slap law. anti slap motion was filed. But the Court of Appeal decided to publish this decision to call out lawyers who refer to these motions as anti slap motions. They that court prefers it when litigants and parties refer to the motions as special motions to strike. Tim Kowal : 25:18

I think good luck with that. I tend to think that that horses left the barn A long time ago. Jeff Lewis : 25:23

Yeah, I tend to agree. And also there was a case where appellate justices and Manas Trial Lawyers not to be cheap when it comes to court reporters. The courts exact words were there's no transcript of this hearing when appreciable sums are in play is mysterious why lawyers on both sides think the small cost of court reporting is a good cost to avoid. We publish this opinion in part to discourage misplace threat. That's a good reminder to always have a court reporter at key hearings. And that's the Pacific first national case that we'll put in the in the notes. Tim Kowal : 25:59

I think As appellate attorneys, the email that I send most to trial attorneys is do you have a court reporter for the hearing tomorrow? Jeff Lewis : 26:06

Unless you unless the tentative is in your favor? Have you ever been in a situation, Tim, where the tentative was in your favor and you advise the trial court not to have a court reporter there because of the favorable standard of review or difficulties in terms of preparing the appellate record that would be on the appellate? Tim Kowal : 26:21

Well, I do consider that but I'm always too squeamish not to have a court reporter. They're used strategically not chosen to have a court reporter not attend. Jeff Lewis : 26:32

Sometimes if I have a cost sensitive client, and I have a high degree of confidence that the tentative will be sustained. We do make that decision. Tim Kowal : 26:41

Yeah. Well, I like to, I would, I would like to have unanimity with my client and the trial attorney on any call like that. Well, one last bit of news the California Supreme Court just this week announced it will permanently lower the passing score for the California bar exam. And it release plans for October test administered online. Jeff Lewis : 27:02

I've got some friends who graduated law school with me who would have appreciated having that. That cutoff lowered. All right, well, that wraps up this episode. Tim Kowal : 27:12

If you have suggestions for future episodes, please email us at cow On the next episode, we will cover preliminary injunctions right to attach orders and some other interlocutory orders. Jeff Lewis : 27:26

See you next time, everyone. Unknown Speaker : 27:30

You have just listened to the California appellate podcast, a discussion of timely trial tips and the latest cases news coming from the California Court of Appeal and the California Supreme Court. For more information about the cases discussed in today's episode our hosts and other episodes, visit the California appellate law podcast website at ca l podcast com. That's c a l Thanks to Jonathan Caro for our intro music Thank you for listening and please join us again

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