A Motion for Summary Adjudication can be filed when a moving party cannot show that all evidence is in favor of the party.
“A party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty, if the party contends that the cause of action has no merit, that there is no affirmative defense to the cause of action, that there is no merit to an affirmative defense as to any cause of action, that there is no merit to a claim for damages, as specified in Section 3294 of the Civil Code, or that one or more defendants either owed or did not owe a duty to the plaintiff or plaintiffs. A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.” (Code Civ. Proc., § 437c(f)(1); Lilienthal & Fowler v. Sup. Ct. (1993) 12 Cal. App. 4th 1848, 1853-1854; Hood v. Super. Ct. (1995) 33 Cal.App.4th 319, 321.)
The Civil Code allows “the parties to stipulate to bring a summary adjudication motion as to other issues or claims for damages if they first obtain leave of court before they bring their motion.” (Code Civ. Proc. § 437c(t); Jimenez v. Protective Life Ins. Co. (1992) 8 Cal.App.4th 528, 534.) There is a sound reason for this rule: “...the opposing party may have decided to raise only one triable issue of fact in order to defeat the motion, without intending to concede the other issues. It would be unfair to grant a summary adjudication order unless the opposing party was on notice that an issue-by-issue adjudication might be ordered if summary judgment was denied.” (Gonzales v. Super. Ct. (1987) 189 Cal.App.3d 1542, 1546.)
A motion for summary adjudication must be accompanied by a written notice of motion. (Cal. Rules of Court, Rule 3.1350(c)(1); see Code Civ. Proc., § 1010; Cal. Rules of Court, Rule 3.1110.) Failure to do so risks due process violations, especially given the substantial impact on the rights of the opposing party or parties.
Note, summary adjudication cannot be ordered on the court’s own motion. (Scheiding v. Dinwiddie Const. Co. (1999) 69 Cal. App. 4th 64, 75.) Similarly, a motion for summary adjudication requires a separate statement of fact. (Code Civ. Proc., § 437c(b)(1).)
“If made in the alternative, a motion for summary adjudication may make reference to and depend on the same evidence submitted in support of the summary judgment motion. If summary adjudication is sought, whether separately or as an alternative to the motion for summary judgment, the specific cause of action, affirmative defense, claims for damages, or issues of duty must be stated specifically in the notice of motion and be repeated, verbatim, in the separate statement of undisputed material facts.” (Rules of Court, rule 3.1350(b); see also Code Civ. Proc., § 437c(f)(2).)
And as with summary judgment:
(Code Civ. Proc., § 437c(p).)
“The Separate Statement of Undisputed Material Facts in support of a motion must separately identify:
(Rules of Court, rule 3.1350(d)(1).)
“The separate statement should include only material facts and not any facts that are not pertinent to the disposition of the motion.” (Rules of Court, rule 3.1350(d)(2).)
If a triable issue is raised as to any of the facts in a separate statement, the motion must be denied. (Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 252; see also, § 437c(p)(2) (a plaintiff need only show “that a triable issue of one or more material facts exists as to the cause of action or a defense thereto”).)
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