Code of Civil Procedure § 437c(b)(2) – Separate Statement Requirement for Summary Judgment
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Code of Civil Procedure § 437c(b)(2) – Separate Statement Requirement for Summary Judgment
Code of Civil Procedure – CCP
PART 2. OF CIVIL ACTIONS [307 – 1062.34]
( Part 2 enacted 1872. )
TITLE 6. OF THE PLEADINGS IN CIVIL ACTIONS [420 – 475]
( Title 6 enacted 1872. )
CHAPTER 5. Summary Judgments and Motions for Judgment on the Pleadings [437c – 439]
( Heading of Chapter 5 amended by Stats. 1993, Ch. 456, Sec. 4. )
Code of Civil Procedure § 437c(b)(2)
(2) An opposition to the motion shall be served and filed not less than 20 days preceding the noticed or continued date of hearing, unless the court for good cause orders otherwise. The opposition, where appropriate, shall consist of affidavits, declarations, admissions, answers to interrogatories, depositions, and matters of which judicial notice shall or may be taken.
437c(b)(2) Summary
This subsection outlines the service deadline for supporting papers in a motion for summary judgment or summary adjudication. Specifically, it states that:
All supporting papers, including declarations and evidence, must be served on all other parties at least 75 days before the hearing on the motion,
The method of service may affect the timing:
If served by mail within California, 5 calendar days are added,
If served by express mail or overnight delivery, 2 court days are added,
If served electronically, 2 court days are added, unless otherwise agreed.
Purpose and Function of CCP 437c(b)(2)
The purpose of CCP 437c(b)(2)’s timing and evidence requirements is to promote fairness and efficiency in the summary judgment process. By requiring the opposition to be filed well before the hearing, the rule gives the moving party and the court adequate time to review the opposition and any evidence before the hearing. This helps avoid “trial by ambush” and ensures due process.
In fact, California’s Legislature imposed strict notice and timing rules for summary judgment specifically because a summary judgment motion is often “the most important pretrial motion in a civil case,” and preparing a competent opposition “requires considerable time and effort.” The law guarantees the non-moving party “sufficient time to assemble the relevant evidence and prepare an adequate opposition.” plaintiffmagazine.com In practical terms, the 14-day minimum period (recently extended – see below) prevents unfair surprise or rushed, last-minute opposition work impactattorneys.com. It ensures that both sides have a fair opportunity to present their case: the moving party has to give early notice of the motion, and the opposing party must respond with evidence by the deadline so that all arguments are on the table in advance of the hearing.
Key Requirements of CCP 437c(b)(2)
To summarize, here are the core requirements and features of CCP § 437c(b)(2) (the opposition stage of a summary judgment motion):
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Deadline to Oppose: The opposition must be filed and served at least 14 days before the hearing on the motion (not counting the hearing date). (As explained in the Updates section below, this deadline becomes 20 days for motions heard in 2025 or later) The court may alter this timeline only if it finds good cause – for example, a judge might allow a later filing or shorten time in extraordinary circumstances, but this is rare and requires judicial permission.
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Evidence in Opposition: The opposing party’s papers should include actual evidence disputing the material facts. CCP 437c(b)(2) specifically contemplates affidavits or declarations (written sworn statements), admissions of the parties, deposition testimony excerpts, answers to interrogatories, and judicially noticeable facts as appropriate forms of evidence. In short, the opposition cannot rely on mere allegations or arguments in the briefs; it must point to concrete evidence that creates a triable issue of fact. For example, a plaintiff opposing a defendant’s motion might file a declaration from a witness or an expert report to contradict the defendant’s version of events.
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Separate Statement (Related Requirement): Although it is set forth in CCP § 437c(b)(3) rather than (b)(2), it’s important to note that opposition papers must include a “separate statement” responding to each material fact the moving party claimed was undisputed. In this document, the opposing side must agree or disagree with each of the moving party’s proposed undisputed facts and cite evidence for any fact they contend is disputed. The separate statement is a crucial companion to the opposition brief – it forces the opposing party to explicitly address the facts one by one. Failure to provide this separate statement can have serious consequences (as discussed later). Thus, a complete opposition under California summary judgment law includes (1) a brief or memorandum of points and authorities, (2) evidence such as declarations or discovery materials, and (3) a separate statement of disputed and undisputed facts.
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Consequence of Non-Compliance: If the opposition is not timely or lacks the required separate statement or evidence, the moving party can object or move to have the motion granted on that basis. The statute explicitly allows a court to use its discretion to refuse late papers or to grant the motion if the opposition fails to include the separate statement. In other words, missing the deadline or not following the format can be “a sufficient ground” to effectively lose the motion by default. We will see below, however, that courts typically exercise caution and prefer decisions on the merits rather than terminating a case on a technicality.
