Sample Motion for Summary Judgment in California: Filings and Burden

A motion for summary judgment in California must satisfy the requirements of Code of Civil Procedure Section 437c and California Rules of Court Rule 3.1350: the moving party has to show, through admissible evidence organized in a specific document package and served on a strict schedule, that no triable issue of material fact exists and that judgment is warranted as a matter of law.¹² The California requirements for a motion for summary judgment fall into four buckets: timing, documents, evidence, and burden. Miss any of them and the motion fails, no matter how strong the underlying argument.

When You Can File and the Deadlines That Follow

A party may file the motion any time after 60 days have passed since the opposing party’s general appearance.¹ From there, everything is measured from the hearing date.

The notice of motion and all supporting papers must be served on every other party at least 81 days before the hearing.³ The 81 days is a floor that extends by the method of service:

Mail within California: add 5 calendar days (86 days total).
Mail outside California but within the U.S.: add 10 calendar days (91 days total).
Mail outside the United States: add 20 calendar days (101 days total).
Fax, express mail, or overnight delivery: add 2 court days.
Electronic service under CCP Section 1010.6: add 2 court days.⁴

The hearing must occur no later than 30 days before the trial date, unless the court orders otherwise for good cause.¹ Count backward from trial to find the latest possible hearing, then backward again from that hearing to find the service deadline. Both ends are jurisdictional in practical effect.

The Documents You Must File

Rule 3.1350 sets out the required contents of a summary judgment package:²

A notice of motion identifying the hearing date, time, and location and specifying which causes of action or issues are targeted.
A separate statement of undisputed material facts.
A memorandum of points and authorities.
Supporting evidence: declarations, deposition transcripts, interrogatory responses, requests for admission, and exhibits.
A request for judicial notice where appropriate.

A supporting memorandum is required for every motion unless a specific rule exempts it. The memorandum must tie every factual assertion to a numbered fact in the separate statement; the court will not consider a fact that appears in the memorandum but not the separate statement. All references to declarations or exhibits must include the exhibit number, page, and where applicable the paragraph or line number.⁵

A proposed order is generally prepared by the prevailing party within five days after the court’s ruling, though some counties require it with the moving papers.⁶ Check local rules before filing.

How the Separate Statement Must Be Built

The separate statement is where motions most often fail on technical grounds. Rule 3.1350 requires a two-column format.² The left column is titled “Moving Party’s Undisputed Material Facts and Supporting Evidence.” Each fact is numbered in sequence, with the supporting evidence cited immediately below, including exhibit name, page number, and line numbers. The right column, titled “Opposing Party’s Response and Supporting Evidence,” is left blank for the opposing party to fill in.

Only include facts that are actually material to whether the motion should be granted. Every listed fact should connect to a specific element of a cause of action or defense. Facts omitted from the separate statement are not considered, even if the underlying evidence is in the file.

Evidence: What Counts and How to Present It

Every fact in the separate statement must be supported by evidence that would be admissible at trial. Declarations must be made by someone with personal knowledge, must set forth admissible evidence, and must show the declarant is competent to testify to those facts.³ Deposition transcripts, interrogatory responses, and requests for admission also qualify. Exhibits should be tabbed and indexed so the court can move directly from the separate statement to the underlying evidence.

Evidentiary objections not raised at the hearing are waived, so anticipate hearsay, foundation, and authentication challenges when drafting declarations, and build the foundation in rather than leaving it to argument.³

Judicial Notice

When the motion relies on court records, statutes, regulations, or indisputable facts, request judicial notice rather than proving them through declarations. California Evidence Code Section 452 permits judicial notice of the laws and official acts of any state or the United States, records of any California court or court of record, and facts so commonly known they are beyond reasonable dispute.⁷ The request is a separate document identifying the specific matters and attaching the relevant records.

Who Bears What Burden

The court grants summary judgment only if the papers show no triable issue of material fact and the moving party is entitled to judgment as a matter of law.¹ The court considers all evidence and every reasonable inference, and denies the motion if competing inferences create a genuine dispute.³

A plaintiff who moves must prove every element of the cause of action with evidence. Once done, the defendant must respond with specific facts showing a triable issue on at least one element or on an affirmative defense; the answer’s allegations are not enough.¹

A defendant who moves has a lighter initial task: show that one or more elements of the plaintiff’s claim cannot be established, or that a complete defense exists. The burden then shifts to the plaintiff to produce specific evidence creating a triable issue.¹ That difference shapes how each side drafts: a plaintiff builds affirmatively across every element; a defendant targets the weakest element and concentrates there.

Summary Adjudication as a Partial Alternative

You do not have to seek judgment on the whole case. California allows summary adjudication of individual causes of action, affirmative defenses, claims for damages, or issues of duty. When adjudication is sought, the notice of motion must identify each specific cause of action or defense targeted, and the separate statement must repeat that identification verbatim.² The same 81-day notice period and evidentiary rules apply.

What the Opposition Must Do

The opposition must be served and filed at least 20 days before the hearing.³ It mirrors the moving papers: memorandum, responsive separate statement, declarations, and exhibits.

The responsive separate statement uses the same two-column format. The moving party’s numbered facts and evidence citations are reproduced verbatim on the left; on the right, the opposing party marks each fact “disputed” or “undisputed,” explains the nature of any dispute, and cites supporting evidence with exhibit, page, and line references.² Additional material facts the opposition wants the court to consider must be set out in the separate statement with supporting evidence.

Continuance to Complete Discovery

Section 437c(h) gives the opposition a specific tool when essential evidence has not yet been developed. If the opposing party’s declarations show that facts needed to oppose the motion may exist but cannot yet be presented, the court must either deny the motion or grant a continuance to permit discovery.¹ The declaration must explain what facts are expected, why they matter, and why they cannot be obtained in time. The request can come through the opposition itself or by ex parte application filed on or before the opposition deadline.

The Reply

The moving party may file a reply at least 11 days before the hearing.³ The reply cannot introduce new evidence, additional material facts, or a new separate statement. Its job is to show why the opposition failed to raise a triable issue on what was already presented.

After the Court Rules

If the motion is granted, the prevailing party prepares a proposed order within five days of the ruling and serves it on the opposing party for approval as conforming to what the court ordered.⁶ A granted motion produces a final judgment that is immediately appealable. A denial is not a final order and generally cannot be appealed until after trial.

Sanctions for Bad-Faith Filings

If the court finds a declaration was submitted in bad faith or solely to cause delay, it can order the offending party to pay the other side’s reasonable expenses. Sanctions require notice in the opposing party’s papers or a court-initiated noticed motion, and the offending party must be given an opportunity to be heard.³

1
California Legislative Information. California Code CCP – Section 437c
2
Judicial Branch of California. California Rules of Court – Rule 3.1350
3
California Legislative Information. California Code of Civil Procedure 437c
4
California Legislative Information. California Code CCP – Section 1010.6
5
Judicial Branch of California. California Rules of Court – Rule 3.1113
6
Judicial Branch of California. California Rules of Court – Rule 3.1312
7
California Legislative Information. California Evidence Code 452