Wednesday, August 12, 2015

Consitutionally Required Mulligans, for Some

Marshall v. Cnty. of San Diego, No. D063675 (Jul. 22, 2015)

Section 437c(f)(2) of the Code of Civil Procedure says that “a party may not move for summary judgment based on issues asserted in a prior motion for summary adjudication and denied by the court, unless that party establishes to the satisfaction of the court, newly discovered facts or circumstances or a change of law supporting the issues reasserted in the summary judgment motion.” Seems pretty clear. If you move and lose, you don’t get to move again, without new evidence or law.

This is a civil rights case about the removal of a child from a foster parent who was in the process of trying to adopt him. Plaintiff sued some social workers claiming that they deprived her of due process by taking away the kid without notice or a chance to be heard and by using false and fabricated evidence in proceedings related to the removal. She also brought a Monell claim against the county. Both sets of defendants moved for summary judgment, which the court denied as to the notice claim. For the social workers, it found triable issues precluded qualified immunity. And it found that the county had not met its burden to establish its policies to avoid Monell liability, because it provided only a declaration from an employee who lacked foundation to give the testimony she offered.

But then the county asked for leave to file another SJ motion on the policy issue. And the court let it do so. This time, the county’s counsel did an adequate job and submitted a declaration from someone who actually knew what the policies were. Motion granted.

And then the social workers asked to file their own successive motion. This time they claimed that they did, in fact, give plaintiff notice that they were taking the child away, albeit orally. That, said the trial court, was enough to put the case into the fuzzy realm of qualified immunity. Motion granted.

California’s summary judgment statute, § 437c, is pretty onerous from the perspective of a moving party. It requires a ridiculous amount of notice; the moving party bears an actual evidentiary burden (no federal Celotex “pointing out” a lack of evidence); it prevents a party from moving on less than a whole cause of action. (Except sometimes, perhaps coincidentally, when the movant is a government entity.) These requirements are generally interpreted super-strictly, and trial courts get reversed all the time for failing to live up to their letter.

Turning back to § 437c(f)(2), it seems pretty clear. A party can’t renew an SJ motion unless it convinces the judge that there’s new evidence or law. Neither is present here. The defendants just didn’t do a good enough job on their papers for their first motion. But the trial court thought that was fine, since it did, after all, prevent a complicated an unnecessary trial. And the court of appeal affirms.

It relies on Le Francois v. Goel, 35 Cal. 4th 1094, 1109 (2005), a case that says a trial court always has the authority to sua sponte reconsider an SJ decision or any other interim ruling prior to final judgment. Based on Le Francois, the court holds that trial courts have inherent authority to let parties file successive SJ motions, even when they just fix prior screw-ups and don’t present newly found evidence. According to the court, a ruling otherwise could even potentially lead to unconstitutional impinging on the courts’ inherent constitutional authority to reconsider interim rulings.

This analysis, however, seems to stand Le Francois on its head. The Court there specifically conclude[d] that sections 437c, subdivision (f)(2), and 1008 prohibit a party from making renewed motions not based on new facts or law[.]The inherent authority to reconsider was an exception, which applied only to cases of sua sponte reconsideration, where the court essentially changes its mind based on the same record. Later cases make this point. In this case, the trial court didn't reconsider an order it thought erroneous. From all appearances, it thought the prior order correct, based on the record presented to it. It just gave the defendants a do-over.

I don’t have a problem giving courts discretion to permit a party to make a successive summary judgment motion if there is a good reason for it. I’m not going to dig into the facts of this case. But if SJ was really appropriate on the merits,
from a judicial economy perspective, it makes sense to dispose of the case that way. What’s concerning, however, is that all sorts of stuff about § 437c and the way it gets interpreted is utter nonsense when it comes to judicial economy. Why can’t you move on part of a claim? Why do you need to give so much notice? Why must the moving party prove a negative? Most of the time the answer is: Because the Legislature said so. As I said, trial courts regularly get reversed for not living up to the letter of the statute. But in tension with these rules, the decision here essentially affords a court with the unfettered discretion to waive § 437c(f)(2)’s requirement of new evidence or law and let a movant fix its procedural errors because it thinks a new SJ will provide for the efficient disposition of the case. 

And that discretion, at least anecdotally, mostly seems to break in favor of certain kinds of parties. Funny how the man never seems to trip into the tiger pit of state procedure. Welcome to the jungle.


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