Sometimes litigation is complex because the lawyers make it that way. So often those litigation excesses are tolerated by Courts and achieve their goals, which just encourages the bad behavior. Then it spreads like mold, getting copied. However, just as my cynicism reaches that tipping point, a Court of Appeal authors a new opinion to right the ship. For example, in Clement v. Alegre (September 23, 2009), the Court of Appeal (First Appellate District, Division Two) weighed in on discovery conduct. See September 24, 2009 blog post. And I am pleased to report that the First Appellate District, Division Two, is back business setting litigators back on the straight and narrow with their latest opinion, Nazir v. United Airlines, Inc. (October 9, 2009).
Since complex litigation is in the eye of the beholder, I say that monstrous motions for summary adjudication are "complex." By that standard, Nazir is topical, and I proceed. Nazir is about the summary judgment procedure. Nazir begins by describing the terrain into which the opinion will descend:
Our Supreme Court has said that the purpose of the 1992 and 1993 amendments to the California summary judgment statute was “to liberalize the granting of motions for summary judgment.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 854.) It is no longer called a “disfavored remedy.” It has been described as having a salutary effect, ridding the system, on an expeditious and efficient basis, of cases lacking any merit. And that it has, as shown by the many cases affirming a summary judgment.
At the same time, the summary judgment procedure has become the target of criticism on a number of fronts. Some particular criticism is directed to the procedure in employment litigation, including that it is being abused, especially by deep pocket defendants to overwhelm less well-funded litigants. More significantly, it has been said that courts are sometimes making determinations properly reserved for the factfinder, sometimes drawing inferences in the employer‟s favor, sometimes requiring the employees to essentially prove their case at the summary judgment stage. Here we confront the poster child for such criticism, in a case involving what may well be the most oppressive motion ever presented to a superior court.
Slip op., at 1. In a suit for harassment, discrimination and retaliation, Defendants filed motions for summary judgment or summary adjudication, and the court described the ensuing papers as follows:
Defendants filed a motion for summary judgment/summary adjudication, seeking adjudication of 44 issues, most of which were not proper subjects of adjudication. Defendants' separate statement was 196 pages long, setting forth hundreds of facts, many of them not material—as defendants' own papers conceded. And the moving papers concluded with a request for judicial notice of 174 pages. All told, defendants' moving papers were 1056 pages.
Plaintiff's opposition was almost three times as long, including an 1894-page separate statement, papers the trial court would later disparage as "mostly verbiage," a description with which, as will be seen, we disagree. Curiously, no such criticism was leveled at defendants' papers, not even those in reply, papers that defy description.
Defendants' reply included, and properly, their response to plaintiff's additional disputed facts. Defendants' reply also included, not so properly, a 297-page "Reply Separate Statement" and 153 pages of "Exhibits and Evidence in Support of Defendants' Reply." And the reply culminated with 324 pages of evidentiary objections, consisting of 764 specific objections, 325 of which were directed to portions of plaintiff's declaration, many of which objections were frivolous. In all, defendants filed 1150 pages of reply.
Slip op., at 2. The Court then summarized the task before it:
This, then, is what is before us for de novo review: an order granting summary judgment that purports to sustain without explanation 763 out of 764 objections to evidence, in a record the likes of which we have never seen—not here, not in the combined 11 years of law and motion experience of the members of this panel.
Slip op., at 3. But wait! This is only the third page of an opinion spanning over 50 pages. Consider these comments about the record on appeal:
On August 30, 2007, defendants filed a "Motion for Summary Judgment or, in the Alternative, Summary Adjudication," with moving papers totaling 1056 pages. Plaintiff filed his lengthy opposition which, as quoted above, the trial court described as "mostly verbiage, and utterly lacking in the identification and presentation of evidence demonstrating a disputed issue of fact."
Seemingly emboldened by this description, defendants' brief here begins this way: "As in Macbeth's soliloquy, Appellant's Opening Brief (AOB), like his summary judgment opposition below, is full of 'sound and fury, [but ultimately] signifying nothing.' Despite filing an 1894 page(!) opposition separate statement, which the trial court found . . . in a manner deliberately calculated to obfuscate whether any 'purportedly disputed facts were actually controverted by admissible evidence,' the trial court properly granted summary judgment in this case. As with Nazir's opposition statement, his AOB is 'mostly verbiage, and utterly lacking in the identification and presentation of evidence demonstrating a disputed issue of fact.'"
Passing over whether such disparagement is effective advocacy, the "girth" of materials before the trial court began with defendants, whose 1056 pages of moving papers were in great part inappropriate, beginning with the motion itself.
Slip op., at 4. The Court then spends considerable time summarizing the defects in the Separate Statement:
The deficiencies in the motion pale in comparison to those in the separate statement. "Separate statements are required not to satisfy a sadistic urge to torment lawyers, but rather to afford due process to opposing parties and to permit trial courts to expeditiously review complex motions for [summary adjudication] and summary judgment to determine quickly and efficiently whether material facts are undisputed." (United Community Church v. Garcin (1991) 231 Cal.App.3d 327, 335.) The separate statement "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.) That hardly describes defendants' separate statement here.
The separate statement is, as noted, 196 pages. The exact number of supposedly material facts is impossible to know without actually counting them, as many of the facts are often repeated with the same numbers. But whatever the number, many of the facts are not material, as defendants concede, their separate statement beginning with this quizzical footnote: "The facts are deemed undisputed for purposes of this motion only and do not constitute any admission. For purposes of this motion only, Plaintiff's statements are accepted as true. Not all facts listed herein are necessarily material, as certain facts are asserted for background, foundational, information, or other purposes. Also, by including the facts set forth herein, Defendants are not waiving their right to challenge the admissibility of such facts in connection with this motion or for other purposes in this case."
We offer two observations about this footnote. The first is that it ignores the advice from the leading practice treatise: "PRACTICE POINTER: [¶] . . . [¶] Include only those facts which are truly material to the claims or defenses involved because the separate statement effectively concedes the materiality of whatever facts are included. Thus, if a triable issue is raised as to any of the facts in your separate statement, the motion must be denied!" (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2009) § 10:95.1, p. 10-35.) The second is that there seems to be some disconnect between defendants' concession that "Plaintiff's statements are accepted as true" and defendants' 325 objections to plaintiff's testimony. In short, defendants' separate statement was particularly inappropriate.
The deficiencies carried over to the reply papers, which included a 297-page reply separate statement. There is no provision in the statute for this. The reply also included 153 pages of "Exhibits and Evidence in Support of Reply." No such evidence is generally allowed. (San Diego Watercrafts, Inc. v. Wells Fargo Bank (2002) 102 Cal.App.4th 308, 316.) And, of course, there were the objections, 764 in all, which we discuss below. Suffice to say that there is plenty of blame for the "girth" the trial court criticized, most of which, we conclude, lies at the feet of defendants.
But neither the inappropriateness of defendants' papers nor their excessive volume is the worst aspect of those papers. No, that is the misleading picture those papers presented. An article coauthored by an experienced Superior Court judge has "intended to point out, in ascending order of seriousness, certain fatal errors and other problems [the court has] encountered" in connection with summary judgment motions, at the very top of which are motions "that attempt to 'hide' triable issues of material fact." (Brenner & March, Use and Abuse of MSJs: A View from the Bench (2007) 49 Orange County Law 34, 37.) The article admonishes that a motion "should never cite evidence out of context in an effort to conceal a clearly triable issue of material fact," going on to cite two recent examples in that judge's court, one in a sexual harassment case, the other in one for wrongful termination. (Id. at p. 37.) Here, in vivid detail, is a third.
Slip op., at 5-7. The Court was then compelled to spend considerable time discussing the objections to plaintiff's evidence, as the state of admitted evidence governed the Court's de novo review of the Motions themselves. Without quoting the many pages of discussion about the frivolous nature of the many objections asserted by defendants, the Court, at one point in the opinion writes, "Can this be serious? Can counsel see themselves rising at trial with those objections while plaintiff is testifying before a jury?" Slip op., at 11. The Court then offered this advice in a footnote:
We sometimes "hear" that a common practice in cases staffed by multiple levels of lawyers is to assign the most junior lawyer to "do the objections," which was apparently done here. Perhaps a wiser practice would be have the most experienced lawyer, presumably with a better understanding of the law of evidence, deal with the objections.
Slip op. at 11, n. 6.
The balance of the Opinion, once it moves beyond its focus on the form of the filings before the Court, is an excellent example of detailed application of facts to the complex schemes of law governing harassment, continuing violations, discrimination, exhaustion of administrative remedies and the like. If you don't practice in the area of employment law, the first third of the opinion is still highly relevant, and the balance is a good example of what to consider when bringing or opposing a motion for summary judgment/adjudication.
The Court ends its opinion by reminding trial courts that they possess inherent power to correct abusive summary judgment filings:
The deficiencies in summary judgment papers can appear in a variety of places, and the approaches taken by the courts to address the deficiencies can vary as well, limited only by the inspiration or creativity of the particular law and motion judge—and, of course, due process. There is no universal solution, no panacea, and we do not even attempt to offer suggestions. We write here only to confirm the existence of the inherent power, to remind trial courts of it, and to encourage them to use it when appropriate.
Slip op., at 51. I think this panel is too modest. They seem more than up to the challenge of suggesting methods to curtail incidents like the one chronicled in its Opinion. At any rate, they do yeoman's work and deserve a raise (not that this mismanaged, financially destitute state could provide one).
The UCL Practitioner has already identified some press coverage of this decision in a post from earlier today.