MOTIONS FOR SUMMARY JUDGMENT—AVOID “THE UMF TRAP”!

During my career handling civil appeals, I would guess that about half of them involved motions for summary judgment. 

Why?  While the rules lean towards denial—to preserve the right to trial—in practice many Superior Court judges lean towards granting them, in order to cut down on time-consuming jury trials. 

So I’ve learned a lot about how attorneys might deal with them. 

This blog is about one mistake I’ve seen, over and over.

Generally, there are three documents that are submitted in support of a motion for summary judgment: (1) the memorandum of points & authorities (“MPA”), the stack of exhibits (depositions, declarations, responses to discovery, etc.) supporting the facts you assert, and (3) the “separate statement of undisputed material facts” (“UMF”).

A well-written MPA will tell a story: the real-world story that shows how the other side screwed your client.  The MPA will cite the exhibits that support each fact in the story.  Then the MPA will discuss the law, showing that the facts and exhibits show that there is “no triable issue of fact” regarding any of the other guy’s allegations, so the moving party is entitled to summary judgment. 

The UMF?  Many attorneys simply tell the same story they told in the MPA—with the same details, one “material fact” at a time, citing the evidence in the exhibits that support each such fact.  They end up with a very long UMF, with sometimes 50 or even 100 “material facts.” 

That approach creates “the UMF trap.”  It’s like leading with your chin.  It offers your opponent an easy way to get a denial of your motion, and it offers the judge an easy way to deny it, with very little work.  If your opponent can raise a triable issue of fact as to just one—any one—of your long list of “material facts,” your elaborate motion can be denied. 

Here’s how it can happen. 

I was once retained to help out with an opposition to a motion for summary judgment, in a big case pending in Sacramento County Superior Court.  I was given the task of drafting the MPA, because my strong suit is writing a compelling story and applying the law.  I told the trial lawyers what I needed in the exhibits, and they put that together. 

Dealing with the moving party’s UMF?  Not my department.  I’m supposedly the heavy-duty intellectual, not the technician.  I didn’t even look at the “statement of disputed material facts” the trial lawyers drafted.  Big mistake.  I won’t make it again.

The case was very complex, with a very difficult legal issue at the heart of the motion.  So that’s what I dwelt on in my MPA.  The other guy’s opposition did the same.

So we went to the hearing on the motion.  I made my pitch.  I summarized the complex story and the law, and finished with, “And that’s why there’s a triable issue of fact here, Your Honor.”

Then the other guy gets up and attacks my analysis.  He’s on the same wavelength as me, just the opposite side. 

So far, Her Honor has said nothing.  But now she interrupts my opponent with, “Very interesting, counsel.  But isn’t there a triable issue of fact on your undisputed material fact Number 73, which the other side disputed?” 

What was UMF #73?  It was some small detail that was part of his story.  But it was not a fact that was essential to his claim for breach of contract.  The elements of breach of contract are: a valid contract, a breach, causation of harm, and damages.  That’s it (unless there’s some defense you need to rebut).  The nature of the industry, how long the parties had done business together, nasty things the other guy said or did—all good facts for the story in the MPA.  But they are not elements of the cause of action for breach of contract. 

My opponent answered the judge: “Number 73?  Oh, that’s not important, Your Honor.  It’s just part of the background facts.  It provides context, to flesh out the story.  It’s not material.” 

The judge: “Not ‘material’?  You are the one who listed it as an ‘undisputed material fact.’ ”   And the other side disputed it, citing admissible evidence supporting their denial.  So there is a triable issue of material fact right there.  That’s all I need to know.  All your fancy arguments about the law don’t change that, and I don’t need to spend my time struggling with such difficult issues.  Motion for summary judgment denied!” 

He was stunned.  And, I must admit, so was I.  All that work for nothing, simply because he failed to understand the very limited purpose of the UMF. 

I sympathized with him.  A good attorney tries to get his story across as well and as often as he can, and that’s what he did.  But he didn’t get (and I didn’t get, until then) the fact that judges don’t read the UMF to get the story.  They read the MPA for the story.  All they do with the UMF is put it down next to the opposing party’s separate statement and look at the opposing’s party’s denials and objections.  If the judge finds just one denial or objection that holds up, she denies the entire motion. 

It doesn’t matter what that particular UMF alleges!  It could be important, it could be trivial, it could have very little to do with the elements of the cause of action.  It might indeed be “immaterial.”  But because the moving party listed it as an “undisputed material fact,” it’s material. 

So tell your complete story in your MPA and in the exhibits.  But don’t try to tell it in the UMF.  It won’t do you any good, and it might result in the denial of your motion for a silly reason. 

I see UMFs that go on and on, listing 50, 80, or 100 “material facts.”  They are just begging for trouble.  And it’s based on a misunderstanding of the word “material.”  “Material” means material to the cause of action.  It does not mean material to your story. 

I recently worked on a motion for summary judgment in a probate dispute, based on a claim that certain trustees were not properly notified about a change in the trust.  A draft UMF alleged that the decedent was 95 years old when he died.  “Take it out,” I said.   “It’s got nothing to do with our claim, and it gives our opponent a chance to come up with some evidence that he was 94 or 96.  Bingo: a triable issue of fact!”  It’s fine to include in the MPA’s story (if supported by an exhibit).  But including it in the UMF is just asking for trouble. 

All you need to include in a plaintiff’s UMF is the bare minimum needed to show each element of your cause of action.  Or, if you represent the defendant, the bare minimum to show your defense, or why one of the essential elements of the plaintiff’s cause of action cannot be proved.  Usually, ten or fewer UMF’s should do the job.

So avoid the UMF trap.  Before including any “fact” in your UMF, ask yourself two questions: (1) is there any possible way my opponent might produce evidence raising a triable issue of fact on this? and (2) is it really material to one of my causes of action or defenses?  If your answer is “yes” to #1 and “no” to #2, leave it out.