The New "110-Day Barrier" on Motions for Summary Judgment

January 1, 2003

By: Daniel G. Pezold

Changes to the Code Civil Procedure's requirements affecting Motions for Summary Judgment and Summary Adjudication took effect on January 1, 2003. Those changes, which include a new "110 Day Barrier" on filing and serving dispositive motions, have a direct impact on the defense of a complaint.

Previously, C.C.P. Section 437c(a) required that a notice of motion be served 28 days before the hearing on the motion, plus five days for mailing, with the hearing scheduled no later than 30 days before trial or - 63 days before trial. Now, a notice of motion must be served 75 days before the hearing on the motion, plus five days for mailing, with the hearing scheduled no later than 30 days before trial or - 110 days before trial.

Because there were no corresponding changes to C.C.P. Section 437c with regard to the due date of the opposition papers (e.g., opposition papers are still due 14 days before the hearing on the motion) the opposing party now has two months (61 days) to prepare its opposition rather than two weeks (14 days). In addition, C.C.P. Section 437c(h) now provides that on or before the date the opposition is due, the opposing party may apply to the court by ex parte application to continue the hearing on the motion to obtain additional discovery. These changes are particularly onerous because the opposition now has time to analyze the moving papers, propound discovery, notice and take depositions all directed at defeating the motion by obtaining responses and or testimony that can be used to dispute material facts contained in the separate statement.

Given a trial court's propensity to set trial dates within one year of the filing of the complaint, combined with changes to C.C.P. Section 437c, effective defenses targeted toward summary judgment/adjudication must necessarily be conducted at an accelerated yet well planned pace. This, in turn, means that defense counsel and the client need to work more closely together to ensure that the "110 Day Barrier" for service of a dispositive motion does not arrive before the discovery essential to the motion has been obtained.

One way to work more effectively with the new "110 Day Barrier" is for defense counsel and the client to try and reach early agreement regarding a litigation and discovery plan. Documents in the clients possession, e.g., claim file, not yet in counsel's possession should be identified and forwarded to counsel. Discussions and consensus regarding the filing of demurrers and motions to strike, or other responsive pleadings; first sets of written discovery including document subpoenas; and, setting and taking initial depositions, should ideally take place within the first sixty days when feasible.

During the next sixty days, counsel and the client can then consider and discuss the results of any motions filed, responses to discovery received, and deposition testimony obtained. At this point, the discovery plan can be refined, identifying and reaching agreement as to additional document subpoenas, written discovery, and depositions needed to obtain the evidence to support a dispositive motion. A determination can also be made with regard to whether any motions to compel are needed with respect to the first sets of discovery responses and depositions.

During the third sixty day period, counsel and the client can discuss whether or not the evidence to support a dispositive motion has been obtained, whether to move forward with preparation of a motion, or whether any motions to compel further responses or deposition testimony are needed.

By making efforts to work closely together at the early stages of litigation, defense counsel and the client have the ability to soften the impact of the "110 Day Barrier." Of course, each case must be analyzed according to its unique circumstances. In some circumstances, because informal resolution is deemed likely or desired, immediately serving discovery demands and deposition notices may not be the most effective approach. When making decisions as to how to best proceed, the new "110 Day Barrier" should not be overlooked, particularly given the additional time the opposing party has to analyze dispositive motions and obtain discovery specifically directed at defeating such motions.