Memorandum Supporting

An order granting summary judgment determines the parties' rights, but it is not appealable.

If the motion is granted, the judgment on the issue or case is deemed to be a final judgment from which a party may seek an appeal. The court of appeal can reverse the grant of summary judgment and reinstate the claim in the lower court. However, this is rarely done and most summary judgments are upheld on appeal.

The moving party has the initial burden to show that summary judgment is proper even if the moving party would not have the BURDEN OF PROOF at trial. The court generally examines the evidence presented with the motion in the light most favorable to the opposing party.

When a motion for summary judgment is denied, the nonmoving party achieves a form of premium that enables a case to settle for an additional amount. Put simply, the settlement value of a case increases when a motion for summary judgment is denied. Thus, denials of summary judgment up the ante in the litigation game.

Attack the Legal Argument. The first place to look for a weakness in your opponent's motion is at their legal argument. Attack the Evidence. Attack the Separate Statement. Consider Whether Your Opponent's Motion Meets its Burden. Consider Seeking a Continuance to Conduct More Discovery. Conclusion.

If a defendant refuses to produce documents or witnesses for depositions, you can oppose the summary-judgment motion by submitting your declaration and showing that facts essential to justify your opposition may exist but cannot for reasons stated be presented to the court.

The key to defeating a motion for summary judgment is to show the court that there are still facts in dispute. Summary judgment is only appropriate if none of the facts are disputed.