Friday, August 1, 2014

Timing Issues Can Make Sumary Judgment Burdens Tricky

Ganoe v. Metalclad Insulation Corp., No. B248941 (D2d3 July 21, 2014)

What happens when a moving defendant relies on factually devoid interrogatory responses in meeting its initial burden on a motion for summary judgment, but plaintiff then amends those responses to account for documents produced after defendant filed its motion?
Defendant in a survival and wrongful death asbestos case moves for summary judgment. Its argument is that it never installed asbestos-containing insulation at the decedent’s workplace and thus that plaintiff was never exposed to its product. It attempts to meet its initial burden by relying on: (1) a declaration from an employee, stating that the company had no knowledge, documents, or any other information showing that defendant had done any installation work at the workplace; (2) plaintiffs’ deficient responses to defendant’s contention interrogatories; and (3) deposition testimony of a co-worker of the decedent—identified by plaintiffs as the sole witness on product identification—who testified that he had “never heard of” the defendant.

But then there’s a problem. A document turns up in discovery showing that defendant did, in fact, install insulation at a plant owned by the decedent’s employer. It was apparently missed in defendant’s doc review in this case, but located and identified as relevant in a different case addressing similar issues, after which time it was produced. Based on the document, Plaintiffs amended their rog responses to add the new detail. They also opposed summary judgment.

So the question is: How does the late-produced evidence affect whether defendant met is initial burden? For perspective, let’s step back a bit.

In Aguilar v. Atlantic Richfield Co., 25 Cal. 4th 826, 861 (2001), one of the late Justice Stanley Mosk’s final opinions, the California Supreme Court definitively interpreted amendments to the summary judgment statute, Code of Civil Procedure § 437c. Generally, the court harmonized state procedure with federal practice, as established by the U.S. Supreme Court’s 1986 trilogy of cases, Matsushita Elec. Indus. v. Zenith Radio, 475 U.S. 574 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986); and Celotex Corp. v. Catrett, 477 U.S. 317 (1986).

But relying on the statutory text, the court departed from their federal brethren in one key respect. Celotex permits a moving defendant shift the burden of production to the plaintiff simply by pointing out the lack of evidence of an element of a claim. Aguilar, however, interpreted § 437c(b)’s direction that a defendant “‘support[]’ the ‘motion’ with evidence including ‘affidavits, declarations, admissions, answers to interrogatories, depositions, and matters of which judicial notice’ must or may ‘be taken’” to mean that a moving defendant must come forward with actual evidence that plaintiff can’t prove an element of her claim. (Notably, that actually lightened the burden on a moving defendant. Prior law required a moving defendant to “conclusively negate” an element of plaintiff’s claim.)

Practically speaking, what this effectively means is that, in order to shift the burden, a defendant needs to come forward with enough evidence to warrant an interference that the plaintiff can’t establish an element of its claim. In practice, one key way this happens is by contention interrogatory. Defendant asks plaintiff to identify all facts and evidence that supports each element of plaintiff
s claim. If plaintiff gives empty, shifty, conclusory, or boilerplate responses, they are—in the common parlance—“factually devoid interrogatory answers,” which establish the defendant’s burden of showing that plaintiff doesn’t have any evidence.

Returning to the case, there isn’t really a serious dispute that defendant met its burden by its showing on its original motion.  Plaintiffs’ rog responses were, in fact, “factually devoid.”  But what’s the effect of the late-produced on defendants’ burden? Without much in the way of discussion, the court here determines that “[i]t would be inequitable to allow a moving party to withhold relevant discovery and then meet its burden on summary judgment without consideration of such newly disclosed evidence or the opposing party’s response to that evidence.” For this point, it cites only a case standing for the general proposition that a “motion for summary judgment is not a mechanism for rewarding limited discovery[.]” The court thus determines that, in assessing the defendant’s burden, the trial court should (as it did) assess whether the burden has been met based on the amended rog responses, which were updated after the hot document was produced, well after the motion was filed.  

And based on that, defendant didn’t meet its burden. Other than the rog responses, the evidence cited by the defendant simply stood for the proposition that the relevant witnesses lacked recollection of events forty years past. That was neither here or there on the merits. And in any event, there were disputed issue of fact, so the motion should have been denied even if defendant had met its burden.


This case glosses over a tricky problem that frequently comes up due to the particularly long notice a moving party needs to give to seek summary judgment. A summary judgment motion must be served on the non-moving party at least sixty-one days before any opposition will be due. See § 437(a) (requiring seventy-five days’ notice of hearing), (b)(2) (opposition due fourteen days before hearing). Because of this long lag time, it is not at all unusual for certain kinds of plaintiffs to delay making any serious efforts to seek or compel discovery until a motion is filed. (After all, the motion gives them a roadmap for what evidence they need to obtain.) If that happens, documents that are germane to the merits of the motion will not be produced until after a motion has been filed. That, however, is often through no fault of the defendant, who, after all, has no self-executing obligation to produce evidence that the plaintiff might find useful in opposing summary judgment.

If contention rog responses that are amended in the interregnum between the motion and opposition to address later produced evidence need to be considered on the issue of whether defendant has met its own burden, it puts defendants in a bind. Under the circumstances, the only way to affirmatively address the issue would be to file a new or amended motion. But given the long lead time required, and the fact that summary adjudication is understanably usually sought somewhat late in a case, a renewed motion and notice period will often run afoul of § 437c(a)’s requirement that a summary judgment motion must be heard at least thirty days before trial. This opens the door to gamesmanship, since it potentially gives plaintiffs an avenue to avoid litigating summary judgment on the merits by running out the clock through their own lack of diligence in pursuing discovery.

I’m not saying that, under the facts of this case, the court reached the wrong result. But only if (as the opinion suggests) the reason that evidence relevant to the defendant’s burden was not produced in advance of the motion is defendant’s neglect, misconduct, or bad faith. Under those circumstances, it is not unreasonable to ascertain defendant’s burden based on post-filing amended responses to contention rogs that address the late produced evidence.  The opinion, however, does not dig into the distinction regarding the reason why evidence was produced late.

If a defendant’s post-motion production of discovery is not based on its own culpable conduct, it is unfair to require the defendant to bear a retroactive consideration of that evidence in determining if it has its initial burden. Plaintiffs have the obligation to pursue discovery diligently, including, if necessary, filing timely motions to compel. Absent misconduct, a defendant’s burden should generally be based on the state of play at the time it moves. Otherwise, through no fault of their own, defendants must shoot at a moving target.

It bears mentioning that measuring the defendant’s burden at the time the motion is filed does not really pose any unfairness to the plaintiff. First, § 437c(h) already permits plaintiffs to ask the court to delay a ruling if they need more time to obtain identifiable discovery. Further, late-produced discovery can be used to defeat summary judgment even if the burden shifts. Logically speaking, evidence that undermines the moving party’s burden to prove the lack of evidence of fact X invariably also meets plaintiff’s burden to show that there is evidence of X, i.e., that there is a dispute of material fact. But if plaintiffs can effectively defeat the moving party’s burden based on evidence that has not even been properly requested at the time the motion was filed—potentially rendering the timely litigation of a summary judgment impossible—they have every reason to do so.

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