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.
Showing posts with label initial burden. Show all posts
Showing posts with label initial burden. Show all posts
Sunday, July 19, 2020
Friday, April 13, 2018
Evidence of Inconclusivess Meets SJ Burden
Leyva v. Garcia, No. F073398 (D5 Feb. 28, 2018)
The Court here affirms a grant of summary judgment in favor of defendant, an apartment owner, in a negligence case brought by tenants injured in a fire. The opinion contains a good discussion of the moving party’s burden under California law.
The Court here affirms a grant of summary judgment in favor of defendant, an apartment owner, in a negligence case brought by tenants injured in a fire. The opinion contains a good discussion of the moving party’s burden under California law.
Wednesday, March 23, 2016
The Everfull California Sandbag
People ex rel GEICO v. Cruz, No. D067061 (D4d1 Feb. 17, 2016)
An Insurance Company brings brings a qui tam against alleging fraudulent insurance billing practices in auto accident claims in violation of the Insurance Fraud Prevention Act. Relatively early in the case, a Chiropractor defendant served a raft of requests for admission, including requests that the Carrier admit it didn’t suffer any damages. As is common in state court practice, the RFAs were accompanied by Form Interrogatory 17.1, which requires a responding party to state the facts and identify any evidence upon which any RFA response other than an unqualified admission is based. The Insurer’s first set of responses to the form rog simply claimed that discovery was ongoing and that it reserved a right to supplement.
The Chiro moved to compel. In the interregnum between filing the motion and a decision, the Insurer supplemented its responses with some—albeit relatively general—information, reiterating that discovery was ongoing. The trial court granted the motion and awarded sanctions based on the inadequacy of the original responses. At the hearing, the Chiropractor also took issue with the Insurance Company’s supplemental responses on damages. The Insurer’s, however, explained that the supplemental contained all relevant information that it could be located to that point, subject to being augmented by a damages expert.
The Chiropractor subsequently moved for summary judgment based on the Insurer’s failure to identify or calculate its damages. During the lengthy window between the motion and the due date on the opposition, see Cal. Code Civ. Proc. § 437c(a), the Carrier again supplemented its responses, adding further detail, including some additional facts about alleged up-charging that formed the basis of its damages.
The Chiropractor objected and filed a motion to have the Insurer bound to its first set of supplemental responses under § 2030.310(b). The trial court granted the motion, holding that the Insurer was bound to the prior responses and further that, in opposing the motion, it could not use any undisclosed information it knew of when it filed the supplemental responses or, for that matter, any other discovery derived from such information. Unsurprisingly perhaps, the Insurer’s opposition was full of information that was not presented in its original supplemental responses. The court granted the Chiropractor’s evidentiary objections, struck the evidence, and granted summary judgment. The Insurance Company appeals.
The Court of Appeal holds that it was error to bind the Insurer to its original responses. Under the plain text of § 2030.310(c)(1)–(3), a moving party seeking to bind a respondent to rog responses bears the burden of showing: 1. that it was substantially prejudiced by the failure to answer; 2. that the responding party failed to show substantial justification for the original answer; and 3. that the prejudice isn’t curable through a continuance for additional discovery or the use of the original responses for impeachment purposes.The court here holds that the first and third elements were not established.
On the first element, the Chiropractor claimed that, in reliance on the Insurer’s representations that the responses were complete, he ceased the meet and confer process on the supplemental responses or moving to compel on them. But the court here does not find that prejudicial enough. Even had the Chiropractor gone that route, a successful discovery motion would have just resulted in further supplemental responses along the lines of what the Insurer ultimately served anyway.
On the third, the Chiropractor argued that although trial was still a ways off, failing to bind Insurer would permit it to weasel out of the rule that a summary judgment movant can rely on the non-moving party’s factual deficient interrogatory responses it meeting its initial burden. But the court here doesn’t agree. Without further elaboration, it just states that “rewarding” a non-moving party for sandbagging on interrogatory responses until after a summary judgment motion is filed “has no bearing on whether [the moving party] suffered incurable prejudice.”
And because the motion to bind was erroneously granted, it was further error to reject the Insurer’s other evidence based on that ruling.
The court goes on to find that the record, including the evidence rejected by the trial court, showed triable issues thus that summary judgment should have been denied.
Reversed.
I have to say, I don’t find this analysis very satisfying. As I pointed out back in 2014, the fact that California’s summary judgment rules put an affirmative burden on the moving party and require a lengthy window between motion and opposition present a timing conundrum. The case law says the movant can rely on factually devoid interrogatory responses to meet an initial burden. But permitting the non-moving party to amend or supplement those responses after a motion is filed potentially creates an unfair, moving-target type situation. At minimum, fairness seems to require a court to measure a moving party’s initial burden based on discovery responses that are effective as of the date the motion is filed. Although it appears that in the absence of the three factors in § 2030.310(c), the non-moving party can’t be bound to its original responses in meeting its own burden to show a disputed issue of fact, that should come into play only after the burden has shifted.
Now, when it gets to the merits, the court here seems to be focused on whether the Insurer met its burden as the non-moving party. That is, it seems to assume that the Chiropractor’s initial burden was met without getting into the issue. So the ruling may well be right on the merits. But by dismissing out of hand the potential prejudice that arises from the amendment of interrogatory responses once a summary judgment motion is filed, the court fails to grapple with an important procedural issue, and indeed, potentially makes it even more unclear.
An Insurance Company brings brings a qui tam against alleging fraudulent insurance billing practices in auto accident claims in violation of the Insurance Fraud Prevention Act. Relatively early in the case, a Chiropractor defendant served a raft of requests for admission, including requests that the Carrier admit it didn’t suffer any damages. As is common in state court practice, the RFAs were accompanied by Form Interrogatory 17.1, which requires a responding party to state the facts and identify any evidence upon which any RFA response other than an unqualified admission is based. The Insurer’s first set of responses to the form rog simply claimed that discovery was ongoing and that it reserved a right to supplement.
The Chiro moved to compel. In the interregnum between filing the motion and a decision, the Insurer supplemented its responses with some—albeit relatively general—information, reiterating that discovery was ongoing. The trial court granted the motion and awarded sanctions based on the inadequacy of the original responses. At the hearing, the Chiropractor also took issue with the Insurance Company’s supplemental responses on damages. The Insurer’s, however, explained that the supplemental contained all relevant information that it could be located to that point, subject to being augmented by a damages expert.
The Chiropractor subsequently moved for summary judgment based on the Insurer’s failure to identify or calculate its damages. During the lengthy window between the motion and the due date on the opposition, see Cal. Code Civ. Proc. § 437c(a), the Carrier again supplemented its responses, adding further detail, including some additional facts about alleged up-charging that formed the basis of its damages.
The Chiropractor objected and filed a motion to have the Insurer bound to its first set of supplemental responses under § 2030.310(b). The trial court granted the motion, holding that the Insurer was bound to the prior responses and further that, in opposing the motion, it could not use any undisclosed information it knew of when it filed the supplemental responses or, for that matter, any other discovery derived from such information. Unsurprisingly perhaps, the Insurer’s opposition was full of information that was not presented in its original supplemental responses. The court granted the Chiropractor’s evidentiary objections, struck the evidence, and granted summary judgment. The Insurance Company appeals.
The Court of Appeal holds that it was error to bind the Insurer to its original responses. Under the plain text of § 2030.310(c)(1)–(3), a moving party seeking to bind a respondent to rog responses bears the burden of showing: 1. that it was substantially prejudiced by the failure to answer; 2. that the responding party failed to show substantial justification for the original answer; and 3. that the prejudice isn’t curable through a continuance for additional discovery or the use of the original responses for impeachment purposes.The court here holds that the first and third elements were not established.
On the first element, the Chiropractor claimed that, in reliance on the Insurer’s representations that the responses were complete, he ceased the meet and confer process on the supplemental responses or moving to compel on them. But the court here does not find that prejudicial enough. Even had the Chiropractor gone that route, a successful discovery motion would have just resulted in further supplemental responses along the lines of what the Insurer ultimately served anyway.
On the third, the Chiropractor argued that although trial was still a ways off, failing to bind Insurer would permit it to weasel out of the rule that a summary judgment movant can rely on the non-moving party’s factual deficient interrogatory responses it meeting its initial burden. But the court here doesn’t agree. Without further elaboration, it just states that “rewarding” a non-moving party for sandbagging on interrogatory responses until after a summary judgment motion is filed “has no bearing on whether [the moving party] suffered incurable prejudice.”
And because the motion to bind was erroneously granted, it was further error to reject the Insurer’s other evidence based on that ruling.
The court goes on to find that the record, including the evidence rejected by the trial court, showed triable issues thus that summary judgment should have been denied.
Reversed.
I have to say, I don’t find this analysis very satisfying. As I pointed out back in 2014, the fact that California’s summary judgment rules put an affirmative burden on the moving party and require a lengthy window between motion and opposition present a timing conundrum. The case law says the movant can rely on factually devoid interrogatory responses to meet an initial burden. But permitting the non-moving party to amend or supplement those responses after a motion is filed potentially creates an unfair, moving-target type situation. At minimum, fairness seems to require a court to measure a moving party’s initial burden based on discovery responses that are effective as of the date the motion is filed. Although it appears that in the absence of the three factors in § 2030.310(c), the non-moving party can’t be bound to its original responses in meeting its own burden to show a disputed issue of fact, that should come into play only after the burden has shifted.
Now, when it gets to the merits, the court here seems to be focused on whether the Insurer met its burden as the non-moving party. That is, it seems to assume that the Chiropractor’s initial burden was met without getting into the issue. So the ruling may well be right on the merits. But by dismissing out of hand the potential prejudice that arises from the amendment of interrogatory responses once a summary judgment motion is filed, the court fails to grapple with an important procedural issue, and indeed, potentially makes it even more unclear.
Wednesday, August 13, 2014
Clarifying the Burdens
Collin v. Calportland Co., No. C0635875 (D3 July 30, 2014)
This is an asbestos case, where the trial court granted summary judgment on product ID. The particulars don’t really matter much. But there are two useful statements on the SJ standard. First, the case clearly states that a moving defendant’s burden is to come forward with evidence that raises an reasonable inference that plaintiff can’t prove an element of her claim. That’s always been the standard, but the clear articulation is helpful. Second, the court makes the point that a moving party is not obligated to “to set forth all material evidence” that might undermine its initial burden on the motion, so long as the omission is not “an attempt to mislead the trial court about the state of the discovery record[.]” Given that a recent case suggests that evidence produced by the moving party after a motion for summary judgment is filed can sometimes be considered in assessing the moving party’s initial burden, this is also a helpful clarification for parties moving for summary judgment.
Affirmed in relevant part and reversed on other issues.
This is an asbestos case, where the trial court granted summary judgment on product ID. The particulars don’t really matter much. But there are two useful statements on the SJ standard. First, the case clearly states that a moving defendant’s burden is to come forward with evidence that raises an reasonable inference that plaintiff can’t prove an element of her claim. That’s always been the standard, but the clear articulation is helpful. Second, the court makes the point that a moving party is not obligated to “to set forth all material evidence” that might undermine its initial burden on the motion, so long as the omission is not “an attempt to mislead the trial court about the state of the discovery record[.]” Given that a recent case suggests that evidence produced by the moving party after a motion for summary judgment is filed can sometimes be considered in assessing the moving party’s initial burden, this is also a helpful clarification for parties moving for summary judgment.
Affirmed in relevant part and reversed on other issues.
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?
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?
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