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A motion for summary judgment tends to be as unwelcome to plaintiff’s attorneys as a tax audit. Much like audits, you’re likely to overcome most of them, but the consequences of losing are far more severe than the benefits of winning.
When you “win” a tax audit, you avoid paying extra taxes. When you “win” against a motion for summary judgment, your case continues toward trial—no more, no less.
Since these motions will likely be a constant in your career as a plaintiff’s lawyer, it’s essential to prepare effective opposition strategies. One reliable tactic is to challenge the admissibility of the opposing party’s evidence.
Don’t rely on boilerplate objections. Instead, dedicate an entire section of your memorandum of points and authorities to evidentiary objections. Doing so gives the court a clear, procedural basis for denying the motion independent of the substantive legal arguments.
LEARN MORE ABOUT HOW TO OPPOSE A MOTION FOR SUMMARY JUDGMENT
At its core, the burden on a defendant moving for summary judgment is to demonstrate that one or more essential elements of your cause of action cannot be proven. (Code Civ. Proc., § 437c, subd. (p)(2).)
To meet this burden, the motion must be supported by competent evidence—often in the form of declarations. (Code Civ. Proc., § 437c, subd. (b)(1).) However, what is frequently overlooked is that such declarations must include only admissible evidence. (Code Civ. Proc., § 437c, subd. (d).)
The statute is explicit: the court is prohibited from considering any evidence to which objections have been sustained. (Code Civ. Proc., § 437c, subd. (c).)
In other words, the legislature has handed you a procedural argument on a silver platter—because many declarations filed in support of summary judgment are riddled with inadmissible statements and violations of evidence law.
Take a standard medical malpractice case, for example. Say you’re advocating for a grieving family who lost a loved one due to a doctor’s failure to detect a life-threatening condition.
Chances are high that the defense will move for summary judgment, arguing that the physician acted within the applicable standard of care during the evaluation.
OPPOSITION TO MOTION FOR SUMMARY JUDGMENT
Don’t overlook the importance of applying Evidence Code § 802 to any expert declaration. That section provides: “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.” Without a solid factual foundation, an expert declaration is vulnerable to evidentiary objections and may be deemed inadmissible.
The decision in Kelley v. Trunk (1998) 66 Cal.App.4th 519, is a clear illustration. In medical malpractice cases, Kelley holds that expert opinion is necessary to establish whether a defendant met the standard of care. (Kelley, supra, at p. 523.)
But those opinions must be factually supported. In Kelley, the plaintiff visited the ER for a laceration, received pain medication, and contacted Dr. Trunk the next day still experiencing pain. Without an exam or further inquiry, Dr. Trunk prescribed the same medication. The plaintiff’s condition deteriorated, leading to surgery and a malpractice suit.
Dr. Trunk moved for summary judgment, supported by an expert declaration. While the declaration included credentials, reviewed records, and a case timeline, it merely concluded that Dr. Trunk acted within the standard of care—without detailing the factual basis behind that conclusion. (Kelley, supra, at p. 522.)
The court rejected the declaration as insufficient to satisfy the initial burden for summary judgment. (Id., at p. 524.) It emphasized that the expert’s statement was “an opinion unsupported by reasons,” failing to discuss symptoms, their relevance to the injury, or the appropriateness of the response by a reasonable physician.
The court published its opinion specifically to caution litigants against relying on superficial expert declarations. It made clear that moving parties cannot meet their burden through conclusory statements devoid of analytical support. (Id., at pp. 524–525.)
Most expert declarations tend to recite qualifications, list reviewed documents, offer a brief timeline, and end with a general assertion that care met the standard. That is precisely the type of declaration the Kelley court intended to discourage to preserve judicial and litigant resources.
If you’re faced with such a declaration, object to its lack of factual foundation. Argue that it fails under Kelley, and conclude there’s no admissible evidence to support the motion—warranting its denial.
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SUMMARY JUDGMENT ADMISSIBLE EVIDENCE
It’s critical to understand that when a summary judgment motion lacks supporting admissible evidence, the plaintiff has no obligation to present counter-evidence establishing a triable issue of material fact.
The case of Sheiding v. Dinwiddie Const. Co. (1999) 69 Cal.App.4th 64 makes this point clear. In a well-articulated opinion, the court held that an opposing party is not required to produce any evidence in response if the moving party fails to carry its initial burden with competent, admissible evidence.
Nonetheless, it’s a sound practice to file an expert declaration affirming that the defendant breached the applicable standard of care, thereby reinforcing the existence of a triable issue. But make sure your expert provides a clear, factually grounded explanation for their conclusions.
This evidentiary challenge isn’t limited to violations of Evidence Code § 802. Supporting evidence in a motion for summary judgment may be inadmissible for other reasons—such as hearsay without a valid exception, lack of relevance, undue prejudice under Evidence Code § 352, or other foundational defects.
In all instances, carve out a dedicated section in your memorandum of points and authorities to raise objections to the moving party’s evidence. This ensures the court must address the evidentiary issues independently of your substantive opposition.
That said, avoid filing boilerplate objections against every exhibit or statement. Instead, focus on well-reasoned, meritorious objections to avoid burying the court in unnecessary paperwork.
Also, remember to preserve your objections by raising them during the hearing—failure to do so can waive them on appeal. Strategically objecting to inadmissible evidence not only bolsters your opposition but also gives the court an alternate procedural ground to deny the motion.
For illustration, here’s a model evidentiary objection heading that aligns with California Rules of Court, rule 3.1354:
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:
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
Pursuant to Evidence Code § 802 and the holding in Kelley v. Trunk (1998) 66 Cal.App.4th 519, 523, expert declarations must articulate a factual basis for the opinions expressed. The statement above is a conclusory assertion devoid of such foundation.
As in Kelley, the declarant recites a general background, provides a minimal case chronology, and then leaps to an ultimate opinion that the care rendered met the standard. However, the declaration fails to identify any specific facts regarding the diagnostic process employed by DOCTOR DEATH, the timing or nature of any clinical steps taken, or any reasoned explanation as to why a reasonably prudent physician would not have recognized the seriousness of the decedent’s condition under the same circumstances.
Without these factual details, the expert’s opinion lacks the necessary foundation and constitutes inadmissible evidence. Accordingly, this portion of the declaration should be excluded in its entirety.
CONCLUSION
Based on the foregoing, 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.)
If you have additional questions about using summary judgments in your case, contact us at 760-642-5475.
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.