Summary Judgment Notice Blues

Torres v. Design Grp. Facilities Sols., Inc., No. B294220 (D2d3 Feb. 13, 2020)

After Defendant filed a summary judgment motion, the Court gave Plaintiff a bunch of time to take discovery. The motion was ultimately denied. But some of what came out in the discovery was actually good for the Defendant. So it moved for reconsideration under Code of Civil Procedure § 1008, arguing that the new evidence that came to light after the SJ was filed merited reconsideration. The trial court granted the motion, agreed, and entered judgment for Defendant.

The Court of Appeal reverses. According to the Court, it was error for the trial court to permit Defendant to use § 1008 to sidestep the procedural protections of the summary judgment statute, § 437c. What defendant filed was, in effect, a new summary judgment motion. So it should have restarted the § 437c process instead of seeking reconsideration.

Reversed.

The Court here doesn’t mention it, but the reason this happened is because of the 75-day notice requirement for an summary judgment motion, which cannot be shortened without the parties’ agreement. Because you need to serve the file-ready version of the motion on the non-moving party so far out, there is not a good way to supplement the record with any evidence that comes out during the two months between the motion and when the opposition is due. So, faced with new information that came out after its motion, but before the hearing, Defendant here was stuck and then tried to fix it on reconsideration. But it seems like the better option would have been to withdraw the motion and refile it, to include the new evidence. If, of course, that was even possible given that an SJ motion also needs to be heard at least 30 days before trial.