When Opposing a Summary Judgment Motion, Don't Forget to Object to your Opponent's Evidence

A summary judgment motion is about as welcome as a tax audit to most plaintiff’s attorneys. Like a tax audit, you know you will probably prevail over most summary judgment motions, but the downside of losing one is huge compared to the upside of winning one. If you “win” your tax audit, you pay no more taxes. And if you “win” the summary judgment motion, your case just keeps moving forward. But since you will probably have to deal with these motions for the rest of your career as a plaintiff’s lawyer, here is one argument you can usually raise in opposition: object to your opponent’s evidence. And don’t just insert rote objections. Actually make your objections to the evidence an entire section of your points and authorities. That way, you will provide the court with a separate procedural basis to deny the motion.

At a basic level, the defendant’s burden in moving for summary judgment is to show that one or more elements of your cause of action cannot be established. Code of Civ. Proc. §437c, subd. (p)(2). In carrying that burden, summary judgment motions must be supported by evidence, such as declarations. Code Civ. Proc., § 437c, subd. (b)(1). But what is not always remembered is that declarations must contain admissible evidence. Code Civ. Proc. §437c, subd. (d). Indeed, the statute expressly precludes the court from considering evidence to which objections have been sustained. Code Civ. Proc. §437c, subd. (c). So right in the statute, the legislature has gift-wrapped an entire argument for you because most declarations you read in support of summary judgment fail to follow basic evidence law.

Consider a typical medical malpractice case. Assume you represent a bereaved family who lost their loved one when a doctor failed to diagnose an impending lethal condition. In all likelihood, you will face a summary judgment motion asserting that the doctor kept with the standard of care when examining the patient. Don’t forget to put that declaration through the rigors of Evidence Code §802, which states in relevant part: “The court in its discretion may require that a witness before testifying in the form of an opinion be first examined concerning the matter upon which his opinion is based.” Absent a sufficient factual basis, the declaration will lack foundation and not be admissible.

The case of Kelley v. Trunk, et al. (1998) 66 Cal.App.4th 519, exemplifies this situation. Kelley states that in professional malpractice cases “expert opinion testimony is required to prove or disprove that the defendant performed in accordance with the prevailing standard of care.” Kelley, supra, at 523. Such opinion testimony, however, must be based on facts. In Kelley, the plaintiff suffered a cut, went to the ER, and was given pain medication. The next day, the plaintiff contacted Dr. Trunk and said he was still in pain. Dr. Trunk phoned in a prescription for the same pain medication the plaintiff had previously taken without examining the plaintiff or asking him about other symptoms. When the plaintiff’s symptoms worsened, he required surgery, and thereafter sued Dr. Trunk for malpractice.

Predictably, Dr. Trunk moved for summary judgment and attached an expert declaration of a physician that listed the expert’s credentials, the records he reviewed, a timeline of the plaintiff’s medical care, and concluded that “at all times . . . [Dr.] Trunk acted appropriately and within the standard of care under the circumstances presented.” Kelley v. Trunk, supra, at 522. But Dr. Trunk’s expert did not specify the factual basis for his conclusion that there was no breach.

The court held that the declaration was insufficient to carry Dr. Trunk’s burden on his summary judgment motion. Id. at 524. The court stated that the declaration was “an opinion unsupported by reasons” and rejected it. The court reasoned that the declaration did not describe the plaintiff’s symptoms, whether they were connected to the laceration, or whether a reasonable doctor would have recognized their severity or otherwise intervened. The Kelley court published its opinion “for the benefit of other litigants” and warned that a party moving for summary judgment does not meet its initial burden “by laconic expert declarations which provide only an ultimate opinion, unsupported by reasoned explanation.” Id. at 524-525.

Most expert declarations in support of summary judgment will list the expert’s credentials, list the records he or she reviewed, refer to the case’s timeline and tersely conclude that the care and treatment provided to the victim were “at all times appropriate and within the standard of care.” That is exactly the type of declaration the Kelley court sought to prevent by publishing its decision in the hopes of conserving litigant and judicial resources.

An expert declaration will fail if you object that it lacks a sufficient factual foundation and argue that the declaration should be rejected, like its counterpart in Kelley. Conclude that there is no admissible evidence in support of the motion and it should therefore be denied. It is important to note that when there is no evidence in support of summary judgment, the plaintiff has no burden to submit any evidence of a triable issue of material fact in opposition. See Sheiding v. Dinwiddie Const. Co. (1999) 69 Cal.App.4th 64, which discusses, in a well-reasoned opinion, that an opposing party need not submit any evidence in opposition to a summary judgment motion when the moving party fails to meet its initial burden with admissible evidence. To be safe, you should also submit an expert declaration asserting that the defendant breached the standard of care to demonstrate the existence of a triable issue of material fact. But make sure that your expert declaration sets forth a sound factual basis for the opinion.

This technique is not limited to Evidence Code §802 issues. Evidence in support of summary judgment motions may contain hearsay without an applicable exception, it may be irrelevant or substantially more prejudicial than probative of any issues, or it may violate any other rule of evidence. Whatever the case may be, dedicate an entire section of your memorandum of points and authorities to your objections to the moving party’s evidence so the court has to deal with your argument.

I suggest, however, that you do not empty your objection arsenal on every piece of evidence submitted by your opponent. Rather, only raise meritorious and clearly thought-out objections so as not to overwhelm the court with paper. Also, don’t forget to raise your objections at the hearing or they will be waived for appeal. But by focusing on your opponent’s inadmissible evidence, you will afford your client another opportunity for victory and provide the court with an entire independent basis for denying the motion.

Here is an example of an objection to evidence on a summary judgment motion that complies with Rules of Court, rule 345:

PLAINTIFFS’ OBJECTIONS TO THE DECLARATION OF DOCTOR RANDOM IN OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

COME NOW THE PLAINTIFFS WHO MAKE AND ASSERT THE FOLLOWING OBJECTIONS TO THE DECLARATION OF DOCTOR RANDOM:

I.

OBJECTIONS

Evidence: Page 3, Lines 25 through 27: “It is my opinion, based on my extensive background, training and experience, and after reviewing the materials described above, that the care and treatment provided to the decedent was at all times appropriate and within the standard of care.”

Objection: Lacks Foundation Expert declarations must state the basis for their opinions. (Evid. Code, § 802; Kelley v. Trunk, et al. (1998) 66 Cal.App.4th 519, 523.) The above-referenced testimony is conclusory and without factual basis. As the expert did in Kelley, here Doctor Random merely listed a skeleton chronology of the decedent’s hospital stay, followed by the naked assertions that the care he received was “within the standard of care.” But no actual facts are provided, such as what steps DOCTOR DEATH allegedly took to diagnose the impending lethal condition, when those steps were allegedly taken, or specifically why a reasonably prudent practitioner in the community would not have discovered the decedent’s condition under like circumstances. The declaration therefore lacks foundation and should be excluded.

II. CONCLUSION

Based on the forgoing, the plaintiffs respectfully request that the Court sustain the above objection and exclude the proffered declaration in accordance with Code of Civil Procedure section 437c, subdivision (c): “In determining whether the papers show that there is no triable issue as to any material fact the court shall consider all of the evidence set forth in the papers, except that to which objections have been made and sustained by the court.” (Emphasis added.)

Respectfully submitted.

Meet the Author

Gordon Levinson is a former insurance defense and personal injury attorney. He has represented some of the largest insurance companies in North America. Over the course of his career, Mr. Levinson has successfully represented more than 3,000 unique clients. Now, he owns and operates the Levinson Law Group, a practice specializing in representing the victims and family members of life-changing tragedies. In 2015, he published an eBook on how to deal with the aftermath of a vehicle collision. Mr. Levinson enjoys spending time with his wife and children. He also spends much of his free time traveling and coaching youth basketball.

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