Legal Question in Civil Litigation in California

In an Unlimited (Defamation, UCL) case, I know that the standard litigation course is after serving defendants with summons and complaint, they demurrer/ M.T.S. and/or Answer, a C.M.C. Hearing, Trial Date set, then Discovery, then Defendants file Motion For Summary Judgment (MSJ), and if overruled, then the case goes to trial.
Rarely does a Plaintiff file a MSJ early in litigation.
My question is: What are the pros and cons for a plaintiff to file a Plaintiff's Motion For Summary Judgement?
If Plaintiff loses Plaintiff's MSJ (gets ovveruled) does that end the case, or can it still stay open and go to trial.
Can a Plaintiff file a MSJ without completing Discovery and not deposing any defendants? Can Plaintiff just use Plaintiff's own testimony and Plaintiff's other (2nd) witness' testimony?

Asked on 3/05/13, 10:00 am

2 Answers from Attorneys

Edward Hoffman Law Offices of Edward A. Hoffman

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It is very hard for a plaintiff to win a summary judgment motion. That is especially true where the plaintiff is a pro per who doesn't understand the rules. Please forgive me for saying so, but that sounds like what is going on here.

A court will grant summary judgment only when the moving party has proved that the other side cannot win at trial. This means he must show that there are no triable issues of material fact. He must also show that the undisputed facts can only support a judgment in his favor. It's not enough to show that the evidence favors him heavily. Instead, he must show that no reasonable trier of fact (whether a juror or a judge) who sees the evidence and understands the applicable law could possibly disagree with him. If his evidence would persuade 999 juries out of 1,000 but fail in front of the last one, then his MSJ must be denied.

MSJs are usually brought after there has been a lot of discovery because that is when the moving party knows what evidence the other side can offer at trial. You can bring an MSJ without first conducting discovery, but that doesn't mean you can win.

A plaintiff who seeks summary judgment without conducting discovery is saying "I have no idea what evidence the other side has but, whatever it might be, I am entitled to win anyway." That's a very, very hard position to support. And it is almost always a very easy one for the other side to defeat.

Yes, you can support your MSJ with your own testimony and that of a witness. But your opponent can offer contrary evidence. If you haven't conducted discovery, you won't know what that evidence might be. It won't take much to defeat your motion, and you will look like a fool for trying.

When a court denies an MSJ the case proceeds to trial. But there are consequences for bringing a frivolous motion. The court could make you pay the other side's fees and costs associated with the motion, assuming the other side asks for them properly. But even if you aren't sanctioned, you will teach the judge not to trust you. You will anger the judge, who must put a lot of time into each MSJ and who must inconvenience other litigants in order to do so. And you will give the other side ammunition to use against you later.

Answered on 3/05/13, 11:13 am

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