In Whitehead v. Habig (Pub. order June 5, 2008) 08 C.D.O.S. 6857, the California Court of Appeal for the Fourth Appellate District, Division Three held that it is incumbent on a party opposing a motion for summary judgment or summary adjudication to file a separate statement of facts that complies with the statutory requirements for such a statement. Where the opposing party does not file a separate statement setting forth citations to evidence in support of the proposition that disputed facts exist which warrant denial of the motion, the trial court may grant the motion for summary judgment or summary adjudication. The court said that a separate statement is “required, not discretionary,” and affirmed the trial court’s grant of the Whiteheads’ motion.

The Whiteheads and Habigs were embroiled in a real estate dispute arising out of the Habigs’ offer to buy a home they were renting from the Whiteheads. When it became apparent that the Habigs were not going to make good on the deal, the Whiteheads sued them; the Habigs cross-complained. Thereafter, the Whiteheads filed a motion for summary judgment, or in the alternative, summary adjudication of the issues on the complaint and cross-complaint. Rather than filing a separate statement in support of their opposition, the Habigs filed an “objection” to the Whiteheads’ separate statement that cited no evidence. There being no evidence cited in opposition to the Whiteheads’ motion, the trial court granted summary adjudication in favor of the Whiteheads as to their causes of action for declaratory relief and quiet title, and on the Habigs’ cross-complaint for specific performance and breach of contract. Because the remaining claims of the Whiteheads required a determination of damages, the court denied summary adjudication on them and set a trial date.

On the date set for trial, the Habigs did not appear, so the court dismissed their cross-complaint and held a “default prove-up on the remaining claims in the complaint. The court entered judgment in favor of the Whiteheads and awarded them $50,050, and thereafter entered final judgment for that amount along with costs. The Habigs appealed.

With respect to the trial court’s ruling on the Whiteheads’ motion for summary adjudication, the court observed that a separate statement in opposition to such a motion is required by CCP section 437c(b)(3), as well as Rule of Court rule 3.1350(d) The Whitehead court said, “[t]he separate statement is not merely a technical requirement, it is an indispensible part of the summary judgment or adjudication process. ‘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 judgment to determine quickly and efficiently whether material facts are disputed.’” (Cite omitted.)

The appellate court held that the Habigs’ opposition to the motion, and in particular to the separate statement of the Whiteheads, was legally insufficient and provided grounds for the trial court to grant the MSJ. The court observed, “The separate statement is required, not discretionary, on the part of each party, and the statutory language makes the failure to comply with this requirement sufficient grounds to grant the motion. (Code Civ. Proc., § 437c, subd. (b)(3).) [The Habigs’] attempt to shift the blame for their failure to comply to the court, without any case authority demonstrating that the court abused its discretion, is both incorrect and misplaced.”
The appellate court also held that the Habigs’ rights to due process were not violated by virtue of the fact they claimed they did not have notice of the trial date because they had moved. The court noted that 1) they did not file a change of address with the court; and 2) in any event, an old address is still considered valid for notice purposes for one year after a move because the postal service is obligated to forward mail for that time period. The court affirmed.
For those of you who have filed MSJs and believe the separate statement in opposition to your motion is legally insufficient, this case is worth reading and citing in reply.