Formally Deficient ≠ Factually Devoid

Bayramoglu v. Nationstar Mortgage LLC, No. C084299 (D3 Jul. 1, 2020)

Almost 20 years ago, in Aguilar v. Atlantic Richfield Co., the California Supreme Court aligned state summary judgment procedure with federal procedure that he been clarified in a trio of 1986 opinions by the federal supreme court. But Aguilar kept one distinction, grounded in the statutory text of Code of Civil Procedure § 437c(b). While the U.S. Supremes’ Celotex decision permits a moving defendant to meet its burden by simply “pointing out” that there’s no evidence on an element of plaintiff’s claim, under Aguilar, the moving party needs evidence of the absence of evidence to substantiate that assertion. 

Of course, evidence of lack of evidence is kind of a tricky thing to come up with. But, relying on a few earlier cases, Aguilar explained one key kind of evidence moving party could use to sustain its burden: the “factually devoid interrogatory answers.” So, those in the know on state court procedure generally serve an early set of requests for admission on each of the ultimate facts that plaintiff needs to prove, accompanied by an official form interrogatory 17.1 (which requires the respondent to state all facts and identify all evidence that support the denial of an RFA), and then later serve a supplemental rog demand whose response is due a couple weeks before a summary judgment motion will be filed. Junky responses to those ensure you can meet your burden under Agulilar. 

Defendant here basically ran that playbook. It served interrogatories asking the plaintiff to explain what evidence supported its contentions. The responses it got back from Plaintiffs just listed the Bates numbers of a bunch of documents, citing to § 2030.230. The trial court found this inadequate, which, in its view made the responses “factually devoid” so as to meet the moving Defendants’ burden.

The Court of Appeal disagrees, and reverses. Plaintiffs’ responses might well have been deficient under § 2030.230, which only permits a reference to documents when the response “would necessitate the preparation or the making of a compilation, abstract, audit, or summary of or from the documents of the party to whom the interrogatory is directed, and if the burden or expense of preparing or making it would be substantially the same for the party propounding the interrogatory as for the responding party[.]” But that doesn’t necessarily mean they were “factually devoid.”

As an example, the court posits a contention interrogatory that demands all facts supporting plaintiff’s assertion that they own a house. (This is a foreclosure case.) In their response, Plaintiffs cite the Bates numbers to the deed, the sale contract, and the mortgage docs. That response is clearly inappropriate under § 2030.230. Nonetheless, however, the response does, in fact, identify evidence to support the contention. The propounding party there would clearly have a remedy in moving to compel a compliant response. But that wouldn’t make the non-compliant responses citing docs “factually devoid.”

Reversed.