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Court of Appeal:
Lack of Opposition Justifies Awarding Summary Judgment
Opinion Says Judge May Grant Motion if It Is Not Deficient on Its Face Where No Separate Statement Is Filed in Opposition, Repudiating Precedent Saying That Moving Party’s Evidence Must First Be Scrutinized
By a MetNews Staff Writer
The Court of Appeal for this district held yesterday that if a Los Angeles Superior Court judge did grant summary judgment to defendants in an employment discrimination case based solely on the lack opposition papers, as the plaintiff alleges, there was no error, disagreeing with precedent.
Justice Dorothy Kim of Div. Five authored the opinion affirming judgments awarded by Judge Daniel S. Murphy in favor of Novo Nordisk, Inc. and Zamaneh Zamanian in an action brought by Melissa Mandell-Brown.
Murphy declared at the hearing on the motion:
“There being no opposition filed, the plaintiff concedes that motion should be granted.”
Mandell-Brown argued on appeal, in a brief signed by Suzanne E. Rand-Lewis of Gary Rand & Suzanne E. Rand-Lewis Professional Law Corporations in Sherman Oaks:
“Even absent any opposition by Appellant, the Trial Court was required to review the evidence and make a determination as to whether Respondents had met their burden of proof.”
Kim’s Opinion
Disagreeing with that proposition, Kim said:
“Even assuming, for purposes of this opinion, that the court granted the motion based solely on the absence of an opposition, without reviewing the supporting evidence in light of the elements of the specific claims asserted, we reject plaintiffs contention.”
In a footnote, the justice remarked that contrary Court of Appeal decisions, such as that of the Fourth District’s Div. Two in Thatcher v. Lucky Stores, Inc., decided in 2000, are disavowed “to the extent they mandate that a trial court conduct a prima facie review of the moving party’s evidence despite the absence of an opposing separate statement.”
CCP §437c(b)(3)
Kim pointed to Code of Civil Procedure §437c(b)(3) which says that opposition to a motion for summary judgment “shall include a separate statement that responds to each of the material facts contended by the moving party to be undisputed,” specifying:
“Failure to comply with this requirement of a separate statement may constitute a sufficient ground, in the court’s discretion, for granting the motion.”
The justice reasoned:
“Thus, if a plaintiff opposing summary judgment fails to file a separate statement, and the trial court reviews the moving papers and concludes the motion is not deficient on its face, it has discretion under subdivision (b)(3) to deny the motion, without first undertaking a detailed analysis of the supporting evidence to determine if a prima facie showing has been made as to one or more of the elements of each claim.”
Decision in Thatcher
In Thatcher, the court said:
“While subdivision (b) of section 437c allows the court, in its discretion, to grant summary judgment if the opposing party fails to file a proper separate statement, this provision does not authorize doing so without first determining that the moving party has met its initial burden of proof....Hence, unless the moving party has met its initial burden of proof, the court does not have discretion under subdivision (b) of section 437c to grant summary judgment based on the opposing party’s failure to file a proper separate statement.”
Mandell-Brown cited other cases to the same effect including Harman v. Mono General Hospital, decided in 1982 by the Third District Court of Appeal, which said:
“Where, as here, the motion for summary judgment is unopposed, the moving party may still not be granted summary judgment unless his papers clearly establish that there is no triable issue of fact and he is entitled to judgment.” Kim noted that the complaint contains 16 causes of action and remarked:
“Given the complexity of the motion, the trial court here was entitled to the benefit of an opposing separate statement, as required under the statute, to aid in its analysis of the multiple causes of action and their elements.”
She also pointed out that Murphy had granted Mandell-Brown two continuances for the purpose of filing opposition.
In a footnote, she specified:
“[B]ecause the trial court here was considering a defense motion for summary judgment, our conclusion concerning the court’s discretion under section 437c, subdivision (b)(3) is limited to such motions. We express no opinion as to the scope of a trial court’s discretion under subdivision (b)(3) when considering a plaintiff’s motion for affirmative relief under section 437c.”
The case is Mandell-Brown v. Novo Nordisk, Inc., B326147.
Representing Nordisk and Zamanian were Max Fischer and George S. Benjamin of Morgan, Lewis & Bockius’s downtown Los Angeles office and Thomas M. Peterson of its San Francisco office.
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