Separate Statement Smackdown

Beltran v. Hard Rock Hotel Licensing, No. G062736 (D4d3 Dec. 5, 2023)

Five years ago, my partner David Klein and I had an article in Los Angeles Lawyer called “Crafting Separate Statements in Motions for Summary Judgment.” The gist of the article was that there was a widespread misunderstanding about what facts and at what level of generality should go into the separate statement required under Rule of Court 3.1350(d). That document calls only for material facts, which basically means the facts, stated in a case-specific action, that make up the elements of the cause of action. So for any given cause of action, depending on the moving party, there could be as few as one at most a handful of facts that are truly material to an SJ motion. But in practice, that is not the way most separate statements are put together. Typically, the tend to be bloated useless documents stuffed to the gills with scores or even hundreds of purportedly “undisputed material facts.”

Other than the associates I have harangued on this point over the years, I don’t know if anyone ever read that article. (And maybe not even those associates...) I can’t link to it, although it is on Westlaw somewhere. (41-DEC L.A. Law. Rev. 14.) 

In any event, the Court in this FEHA sexual harassment case makes the same point. It identifies “the deeply problematic misuse of the separate statement of material facts by all parties and how separate statements can be brought into compliance with existing law.”

I’m not usually a block quote guy, but the court’s full analysis is worth a read:

Defendants filed three separate statements of undisputed material facts (separate statement or statements) in support of each of the three motions for summary judgment filed in this case. Each separate statement includes over 600 paragraphs of purportedly “material facts” and runs over 100 pages. After reviewing the Defendants’ separate statements and Beltran’s responses to them, as well as recent separate statements in other recent cases before us, we can only conclude that a document that was intended to be helpful to the court and provide due process to the parties (Parkview Villas Assn., Inc. v. State Farm Fire & Casualty Co. (2005) 133 Cal.App.4th 1197, 1210) is, in many cases, no longer serving either purpose. We write on this issue to remind both litigants and trial courts about the appropriate scope of the separate statement.

Code of Civil Procedure section 437c, subdivision (b)(1), requires each motion for summary judgment to be accompanied by a separate statement “setting forth plainly and concisely all material facts that the moving party contends are undisputed. Each of the material facts stated shall be followed by a reference to the supporting evidence.” (Italics added.) California Rules of Court, rule 3.1350(d)(2) states: “The separate statement should include only material facts and not any facts that are not pertinent to the disposition of the motion.” Under the Rules of Court, “‘Material facts’ are facts that relate to the cause of action, claim for damages, issue of duty, or affirmative defense that is the subject of the motion and that could make a difference in the disposition of the motion.” (Rule 3.1350(a)(2).)

What neither the rule nor the statute states is that the moving party must include in the separate statement every fact they intend to include in their motion, regardless of its materiality. For example, HRH’s very first “material fact” in its separate statement is: “The Hard Rock brand is known worldwide for its connection to music, fashion, and entertainment.” Under no interpretation of “material” does this qualify – it is merely background information that has no relevance to any cause of action or defense.

This is far from the only paragraph in the three separate statements that make absolutely no difference in the disposition of the motion. The paragraphs in a separate statement should be limited to facts that address the elements of a cause of action or an affirmative defense. (See Code Civ. Proc., § 437c, subd. (b)(1); rule 3.1350(a)(2), (d)(2).) The statute and Rules of Court do not preclude litigants from including background, nonmaterial information in their papers as long as they include a cite to the evidence, but nonmaterial facts should not be included in the separate statement. The point of the separate statement is not to craft a narrative, but to be a concise list of the material facts and the evidence that supports them. “The separate statement serves two important functions in a summary judgment proceeding: It notifies the parties which material facts are at issue, and it provides a convenient and expeditious vehicle permitting the trial court to hone in on the truly disputed facts.” (Collins v. Hertz Corp. (2006) 144 Cal.App.4th 64, 74.) There is nothing convenient or expeditious about the separate statements submitted in this case.

The duty to comply with the law regarding separate statements applies to both sides of a motion for summary judgment or adjudication. The opposing party’s responses to the separate statement must be in good faith, responsive, and material. Responses should directly address the fact stated, and if that fact is not in dispute, the opposing party must so admit. It is completely unhelpful to evade the stated fact in an attempt to create a dispute where none exists. For example, HRH’s separate statement included paragraph 14: “When Shepherd began working at the Hotel, Plaintiff Stephanie Beltran (“Plaintiff’) worked as a server in different parts of the Hotel, but primarily in the Hotel’s nightclub called the ‘Club.’” Beltran claimed this benign and indisputable fact was disputed: “Disputed. Although Plaintiff was already working at Hard Rock when Defendant Shepherd was hired, Plaintiff’s hire date was on or around February 10, 2017, as that’s when her Labor Code § 2810.5 Notice was filled out.” This response did not, in fact, dispute HRH’s statement, and the response should have been “undisputed.” If Beltran’s hire date was a material fact (and we do not see why it was – at best, it was background information) it should be listed under the opposing party’s additional facts with supporting evidence. The quoted paragraph is far from the only example of this problem in Beltran’s responses.

As we mentioned, one of the purposes of the Separate Statement is “to permit the trial court to focus on whether [the material] facts are truly undisputed.” (Parkview Villas Assn., Inc. v. State Farm Fire & Casualty Co., supra, 133 Cal.App.4th at p. 1210.) This can only be accomplished by both parties preparing the Separate Statement according to the statute and Rules of Court and acting in good faith. The moving party must include only material statements of fact, not incidental and background facts. The opposing party must concede facts that are truly undisputed and only add facts that are material. It is difficult to conceive of a properly drafted Separate Statement that includes over 600 paragraphs of undisputed material facts.

Trial courts should not hesitate to deny summary judgment motions when the moving party fails to draft a compliant separate statement – and an inappropriate separate statement includes an overly long document that includes multiple nonmaterial facts in violation of the Rules of Court. Courts should also not hesitate to disregard attempts to game the system by the opposing party claiming facts are “disputed” when the uncontroverted evidence clearly shows otherwise.

(Emphases original, footnotes omitted).

Reversed.