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MCLE Self-Assessment Test

To Summarily Adjudicate or Not Adjudicate:
The Recent Amendments to Section 437c

By Heather Rosing and Bryan Vess


Heather Rosing is a certified legal malpractice specialist and shareholder with Klinedinst PC, where she chairs the Professional Liability Department. Bryan Vess is a San Diego solo practitioner in business law operating his own firm, BRYAN C. VESS APC.

Ms. Rosing and Mr. Vess provide different perspectives on the changes to the summary judgment statute – Ms. Rosing giving a defense counsel’s view and Mr. Vess offers a plaintiffs’ counsel’s view.

Overview of Changes

California’s statutory summary judgment and adjudication provisions are found in Code of Civil Procedure section 437c. The statute was amended by the State Legislature effective January 1, 2012. The changes are significant.

Prior to the amendment, a party could move for summary adjudication of (1) one or more causes of action, (2) affirmative defenses, (3) claims for damages, or (4) issues of duty. In reality, this mainly translated into summary adjudication motions on certain causes of action, on punitive damages, or on straightforward affirmative defenses such as the statute of limitations.

The purpose of allowing such motions under the statute is to expedite litigation and eliminate needless trials. PMC, Inc. v. Saban Entertainment, Inc. (1996) 45 Cal.App.4th 579, 590. However, despite the stated purpose of the statute, parties interested in having the court determine major issues that, if resolved, would not dispose of an entire cause of action or an entire affirmative defense, could not look at 437c for a mechanism for judicial resolution of the issue. Before the recent amendment, the only option to adjudicate issues was through a motion in limine.

Now, with the adoption of these changes to Section 437c, parties can move for summary adjudication of a legal issue or claim for damages ¹ even if that issue does not completely dispose of a cause of action, an affirmative defense, or an issue of duty, according to specified procedures.

The amendments establish the following procedure:

(2) This motion may be brought only upon the stipulation of the parties whose claims or defenses are put at issue by the motion and a prior determination and order by the court that the motion will further the interests of judicial economy, by reducing the time to be consumed in trial, or significantly increase the ability of the parties to resolve the case by settlement.
(3) Before a motion may be filed pursuant to this subdivision, the parties shall submit to the court a joint stipulation clearly setting forth the issue or issues to be adjudicated, with a declaration from each stipulating party demonstrating that a ruling on the motion will further the interests of judicial economy by reducing the time to be consumed in trial or significantly increasing the probability of settlement. Within 15 days of the court’s receipt of the stipulation and declarations, unless the court has good cause for extending the time in which to make the determination, the court shall notify the submitting parties as to whether the motion may be filed. If the court elects not to allow the filing of the motion, the stipulating parties may request, and upon that request the court shall conduct, an informal conference with the stipulating parties to permit further evaluation of the proposed stipulation; but no further papers may be filed by the parties in support of the proposed motion.

(4)Any motion for summary adjudication brought under this subdivision shall contain the following language, or its substantial equivalent, in the notice of motion:
“This motion is made pursuant to subdivision (s) of Section 437c of the Code of Civil Procedure. The parties to this motion stipulate that the court shall hear the motion and that the resolution of this motion will either further the interests of judicial economy by reducing the time to be consumed in trial or significantly increase the ability of the parties to resolve the case by settlement.”

(5)The notice of motion shall be signed by counsel for all parties, and by those parties in propia persona, to the motion.

(6)The joint stipulation shall be served on all parties, if any, who are not parties to the motion specified in paragraph (1). If, within 10 days of the submission of the stipulation, any nonstipulating party files an objection to the determination of the issue, the court may consider the objection in determining whether or not to allow the motion to be filed.

(7)A motion for summary adjudication brought pursuant to this subdivision may be made by itself or as an alternative to a motion for summary judgment and shall proceed in all procedural respects as a motion for summary judgment.


In summary, the courts may now summarily adjudicate issues upon stipulation of the parties, so long as “the interests of judicial economy” are met. In doing so, however, the courts are required to examine whether such summary adjudication will reduce the time to be consumed in trial or significantly increase the ability of the parties to resolve the case by way of settlement.

Mr. Vess

Bryan Vess

Everyone knows that the plaintiffs’ attorney’s practice, generally remunerated on the contingency fee, is a gamble. Sometimes you win and are compensated; sometimes you lose, and go away empty-handed.

But the success is not driven only by the final outcome i.e., a “win” or a “loss.” Instead, success is also defined by the time and expense it takes to get to the result. This driver is difficult to control, as the sometimes intractable court system can seem oriented toward delay.

Over the years, one learns that there are three fundamental hurdles that the plaintiff must overcome to be paid:

(1) the initial challenge upon the filing of the complaint – usually not too much of a concern;

(2) the motion for summary judgment – filed in nearly every important case, and a concern, therefore, in every case; and

(3) the trial itself – which comes, as we know, in only the small percentage of cases.

The initial round of challenges to a complaint is usually somewhat routine; surviving those challenges, therefore, produces little or no settlement leverage. The vast majority of cases await the inevitable motion for summary judgment before settlement can even be meaningfully broached. This takes time. Because of their dispositive nature, lawyers are sometimes loath to pull the trigger (until they have everything they need) and judges are quick to grant additional time to either litigant. Delay is the name of the game. But, as we have heard, sometimes justice delayed is justice denied. Costs increase, and the risk of losing the motion goes up accordingly. The plaintiff’s worst case, or nearly worst case, is losing a motion for summary judgment heard on the eve of trial. All the preparations and sunk costs are lost. If one is to lose, it would be better to lose early. And here is where the recent amendments to Section 437(c) may prove to be effective.

The amendments may increase our ability to shorten the time that it takes to resolve larger cases that present particularly thorny legal issues.

I believe that thoughtful plaintiffs’ lawyers should welcome the amendment and incorporate it into their practices. Based on my own experience, I believe many of my cases could have benefitted from early resolution of issues through a mechanism like this.

As also mentioned above, motions in limine have effectively become the bastion of motions for summary adjudication. For some reason, the origin of which I cannot identify, judges use the motion in limine process not only to exclude prejudicial material, but also to give “haircuts” to cases that seem unduly complex or lengthy. A snip here and there – the day before the trial is about to start –seems to be de rigueur. If a judge is going to summarily adjudicate some issues in my litigation, I would like to know that when the case is young, before all of the significant time and expense of trial preparation has occurred, rather than on the eve of trial. I believe that judges sense which claims are legitimate and which are not, but – prior to this amendment – they did not have an effective pair of scissors to do the haircutting early in the litigation. The new amendments to Section 437(c) allow that trimming to occur earlier, potentially sparing what would otherwise be wasted efforts.

It is true that most plaintiffs’ attorneys will do almost anything to defer scrutiny of their claims. Samuel Johnson had it right: nothing focuses the mind like the noose. So, while most plaintiffs’ lawyers would not want to “rush to the execution,” I would suggest that a more thoughtful approach would be to allow the inevitable scrutiny sooner rather than later. There are several reasons for this.

First, the summary judgment standards are strict and a moving party’s burdens are great. It is important to recognize that the burdens are unaffected by the new issue adjudication amendments. Simply stated, the issues can be resolved earlier, but not more easily.

Second, we lawyers can be stubborn. I have lost two general civil cases on summary judgment in 22 years of practice. In one of the cases, I knew from day one that summary judgment was likely. In the other, I was robbed! The point is that I hung onto that case, worked hard on it, and invested time and energy in it, only, in the end, to have it thrown out. That case would have greatly benefitted from this new procedure.

Though I have lost a few motions, I have won twenty times more. And, in each of those cases, I had to listen to the defense lawyer tell me, again and again, how he or she was going to get summary judgment. I wish that, over the years, I could have “voted with my pocket book,” and said to the lawyer, “Fine, let’s stipulate to have your silver-bullet defense of this or that issue resolved once and for all.” I cannot estimate how many of the ever-confident defense lawyers would have taken me up on it, but, at a minimum, I am confident it would have been less than all of them.

The take away, from my standpoint, is that we tend to hang onto, and perhaps distract ourselves, with hobby horse theories that we should know will not prevail. As dogged advocates, we sometimes convince ourselves that our cases are stronger than they are. The new procedure presents an opportunity to allow some subset of cases to be shorn of some of these issues, which otherwise might stand in the way of an earlier adjudication. An earlier resolution of the issue can mean an earlier resolution of the case, to everyone’s ultimate benefit.

Ms. Rosing

I am a huge fan of this new procedure. My main thought about it is that it does not go far enough.

Heather Rosing

I actually learned about this change to the statute when I was lamenting about the summary judgment/adjudication to a colleague at the State Bar of California. It has apparently been an issue that many have raised, and the Legislature finally addressed it when it became clear that a solution could help ease the burden of our already heavily taxed court system.For years I have agonized over the lack of a procedural mechanism to summarily adjudicate issues, other than a motion in limine on the eve of trial. I have thought time and time again what a waste of resources it is—for the parties and the judicial system—to have major issues that are subject to judicial resolution hanging out there until the eve of trial.By that time, everyone has poured much time, money, and emotion into the case. So when I learned about the change, I was thrilled.

Like Bryan, I can think of quite a few instances where this revised statute would have come in very handy. As mentioned in the preface, I mainly defend attorneys in lawsuits. One case comes immediately to mind when considering this revision to 437c. The allegation against my attorney client was that he had allowed a statute of limitations against a third party to elapse, and, had he filed in time, his client would have achieved a multi-million dollar recovery. I knew that we were likely able to prove that the statute had expired prior to my attorney client ever being hired, but this issue – which was clearly the main issue in the case – was just one of several mentioned in the causes of action for malpractice and breach of fiduciary duty. The other issues collectively had a maximum value of slightly over six figures. If the court would only decide the issue of whether the statute had expired prior to my client’s representation, the uncertainty over the value of the case would be largely resolved (was it a $150,000 case or a $5,000,000 case?), and both my office and plaintiff’s counsel’s office could have an informed settlement discussion, saving all – involved including the court – a lot of needless effort.

Another example involved a case where my client was alleged to have committed an error that resulted in a governmental entity losing its ability to recover under a bond. There was authority, however, indicating the entity only had a right to the bond money to the extent it had or would incur certain delineated expenses. The plaintiff’s counsel disputed our position, and said the entire amount of the bond was the damage in the case. Given the fact that resolution of this issue would not have settled an entire cause of action, it could not be summarily adjudicated. Had there been a mechanism for getting it resolved early on in the case, however, both sides may not have had to expend the significant resources they did commit preparing for trial. This one issue was in hot contention for the entirety of a very long case, and drove it forward.

As alluded to above, I also like this statute because it is exactly what we need at a time when our judges and courtrooms are overburdened. As I am sure everyone reading this article knows, it is extremely difficult these days to get a prompt hearing date for a noticed motion. Some courtrooms are even “booked up” on ex parte appearance slots a month into the future, leaving the attorneys with literally no way of discussing pressing issues with the judge. This is not only unfair to our judicial officers, but causes severe hardship for the litigants. Recently, one clerk told us that our demurrer –which I was pretty sure would resolve the case – could not be heard for five months. When, at the case management conference, we raised the issue with the judge, he said that there was nothing to be done about it, and that we were expected to conduct discovery to keep the case moving forward while the demurrer was pending. So my client was in a position where he had to commit tens of thousands of dollars to an expensive discovery process in a case that never should have been filed against him, and likely would have been won on demurrer.

My point, of course, is that the system is working at over capacity, with serious consequences to the litigants. Solutions need to be devised. Early resolution of key issues is a potential solution, in part. And I think that the adaption of this new tool should also be a reminder that the system can be changed, and that we all should remain open-minded in considering ways to economize our legal system.

I am fully cognizant of the fact that most plaintiffs’ attorneys – as Bryan points out in his section –would prefer to completely avoid a summary judgment/adjudication process, and just get to trial. I frequently hear from my plaintiffs’ attorney friends that the main goal is to “get past summary judgment.” For this reason, I think some plaintiffs’ attorneys will decline to stipulate to adjudication of issues under the revised statute. This is, however, in my opinion, short-sighted. The reason should be obvious: it ignores the fact that the defense attorney will almost assuredly bring up the issue at the motion in limine stage, so it will be resolved one way or the other at that point. By that time, however, all the time and money has already been invested in the case, and one side or the other is going to have to quickly reevaluate its position. There is a decent possibility that the ultimate ruling either causes the plaintiff to understand that he has overvalued the case, or the defendant to realize that he has undervalued the case. Either way, it would have been nice to have that information six months earlier, at the mediation.

It is my belief that litigated matters are generally (though not always) best served by communication between counsel on the substantive issues. Cases are always best served by counsel being civil and professional to one another. If indeed a given case involves a high level of communication and courtesy among counsel, it should not be hard to start a discussion about how to best utilize this new statute to everyone’s advantage. I think it is crucial for the attorneys on both sides to keep in mind that they are not showing weakness by suggesting or agreeing that new provisions be utilized. The judge will still require that there by no issues of triable fact in order to rule on the issue. The same very vigorous standards that the courts have been utilizing for decades in the summary judgment/adjudication process apply. This is not a procedural vehicle that gives either side an advantage. Rather, it is one that simply gives both sides a more accurate picture of the value of the case sooner rather than later.

In conclusion, I hope the Legislature will enact, and the courts will implement, more provisions such as this to streamline the litigation process. There are a lot of ideas out there that could ease the burden on our system, lessen the cost for the litigants, and generally improve the public perception of the judiciary, the bar, and the legal arena.

1 Other than punitive damages, which can be addressed through the normal summary adjudication procedure that predated this amendment and remains intact

EDITOR’S NOTE: This article originally appeared in the Winter 2012 issue of Update by the San Diego Defense Lawyers. It is republished here with permission.

Any opinions and/or viewpoints contained in this article belong solely to the author(s) and are not necessarily the opinion of the California Bar Journal or the State Bar of California or its staff and employees.