Wednesday, November 20, 2013

There Is No Newton's Third Law of Summary Judgment

Cuff v. Grossmont Union High School District, No. D062278 (D4d1 Nov. 18, 2013)

Among other things, the court of appeal holds that a “cross-motion” for summary judgment made in the plaintiff’s opposition brief less than seventy-five days before the hearing was properly denied as untimely.


Plaintiff sued a guidance counselor and a school district for disclosing a copy of a report under the Child Abuse & Neglect Reporting Act to her ex-husband. In response to defendants’ motion for summary judgment on immunity grounds, plaintiff filed a “Memorandum of Points and Authorities in Support of Opposition to, and Counter-Motion for, Summary Judgment, or, in the Alternative, Motion for Summary Adjudication.” The court of appeal reversed the trial court’s grant of defendants’ motion, finding that the statutory immunities claimed by defendants did not apply to the undisputed facts of the case. But it affirmed the trial court’s denial of plaintiff’s cross-motion as untimely and procedurally improper. The court rejected as nonsense plaintiff’s argument that the denial of defendants’ motion automatically merited granting her cross-motion. If there are disputed material facts, neither party is entitled to summary judgment. Otherwise there would never be any trials. And, in any event, the cross-motion was untimely under Code of Civil Procedure § 437c(a), which requires that any party moving for summary judgment or adjudication give at least seventy-five days’ notice to the nonmoving party. Earlier cases have established that the court has no discretion to shorten the notice period. Because plaintiff’s opposition and cross-motion were filed and served fewer than seventy-five days before the hearing, the court had no discretion to consider them.

Affirmed in part and reversed in part.

1 comment:

  1. The cross-motion was a "Hail Mary pass" but as I was appealing the immunity ruling on the summary judgment motion, I thought I would throw it in. When you are a solo practitioner and you are being papered to death by a well-financed governmental entity defendant and being outspent 10 to 1, you sometimes have to improvise and think outside of the box. It was worth a shot and, after all, through sheer force of will, I achieved that reversal in one of the most important right of privacy cases in many years. I can hear all the memos being sent to all the mandated reporters in the state right now.

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