Legal News and Appellate Tips

There are two important reminders about motions for summary judgment in Steger v. CSJ Providence St. Joseph Medical Center (D2d5 Aug. 16, 2021) 2021 WL 3615548 no. B304043 (nonpub. opn.). The first reminder is that the appellate court may affirm on any ground, even if the trial court never reached that ground. The second reminder is that, if you are opposing an MSJ and you have not had a chance to complete discovery on any of the grounds advanced in the motion, you must say so in a CCP § 437c(h) declaration: just arguing it in the opposition is not enough.

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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.

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.

Expert declarations opposing summary judgment ordinarily do not need an extensive analysis, and evidentiary objections ordinarily must be ruled upon or else deemed denied. But in a 2-1 decision out […]