Yay! Your client prevailed on a summary judgment motion! But now you have to draft the proposed order. Do you know what to do? Here’s some help.
First, you have no time to lose. In most situations, you’ll need to prepare and serve the order on the opposing party within 5 days after the ruling. The opposing party then has 5 days to object to the order as to form. Cal Rules of Ct 3.1312(a).
After the opposing party objects, or the time for objections expires, you’ll then have to promptly transmit the proposed order to the court with a summary of any responses from the opposing party or a statement that you got no response. Cal Rules of Ct 3.1312(b).
Of course, the contents of a court order depends on whether or not the motion is granted.
If the order grants summary judgment, it must state the reasons for the court’s determination, e.g., that (CCP §437c(g))
there’s a complete defense to the action, the action has no merit, or there’s no defense to the action;
there’s no triable issue of fact and the moving party is entitled to judgment as a matter of law; or
the opposing party is being sanctioned, e.g., for failure to file a separate statement.
If the motion is granted because there’s no triable issue of fact, there has to be specific reference to evidence proffered in support of and/or in opposition to the motion indicating no triable issue exists.
The order should include a direction that judgment be entered for the prevailing party, specifying any affirmative relief.
If the order denies summary judgment, it must
specify one or more material facts for which there exists a triable controversy;
refer specifically to evidence offered in support of and in opposition to the motion indicating that a triable controversy exists (e.g., if evidence is located in a deposition transcript, cite to page and line number of transcript);
state the court’s reasons for any other determination, e.g., the moving party failed to sustain burden of persuasion or production, or there was a procedural defect (CCP §437c(g)); and
allow recovery of reasonable costs incurred as a result of the motion if the court determines that the affidavits or declarations were submitted in bad faith. See CCP §437c(j).
What you put in order is so important because any issues that aren’t specified in the order aren’t foreclosed at trial. This means that disputed issues specified in the order denying summary judgment are not necessarily the only issues in the case left to be decided at trial. The court isn’t required by statute to list all disputed factual issues in the order, only “one or more” such issues. CCP §437c(g).
Get up to speed on everything about summary judgment motions—including filing, drafting, and arguing them—with CEB’s California Summary Judgment. This comprehensive guide includes sample proposed orders in chapter 11. Also check out CEB’s program How to Write A Persuasive Summary Judgment Motion or Stellar Opposition to One, available On Demand.
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