How to Oppose a Motion for Summary Judgment in California

A motion for summary judgment (MSJ) under CCP 437c asks the court to decide the entire case -- or specific causes of action -- without going to trial. The moving party argues there is no triable issue of material fact and they are entitled to judgment as a matter of law.

If the motion is granted, the case (or the targeted claims) is over. No jury. No trial. That is why opposing summary judgment is one of the most critical motions in civil litigation -- it is often the last line of defense before a judgment is entered.

Before your opposition burden even kicks in, the moving party must first carry their own burden. The California Supreme Court clarified this in Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, and the burden differs depending on who filed the motion:

When the Plaintiff Moves for Summary Judgment

A plaintiff moving for summary judgment must prove each element of their cause of action. They must present evidence that leaves no room for dispute on every required element. If they fail to carry this initial burden on even one element, the motion fails -- and you may not even need to submit opposing evidence.

When the Defendant Moves for Summary Judgment

A defendant has two paths to carry their burden:

• Negate an element: Show that the plaintiff cannot establish one or more elements of their claim (e.g., no duty, no causation, no damages).
• Establish a complete defense: Prove every element of an affirmative defense (e.g., statute of limitations, release, immunity).

Summary judgment timing is strictly governed by CCP 437c. Missing a deadline can result in the motion being granted unopposed.

Your primary goal is to show the court that material facts are genuinely disputed. Here are the main tools for creating triable issues:

Contradicting Declarations

Submit declarations from parties or witnesses that directly contradict the moving party's version of events. A declaration stating "I never agreed to those terms" or "The light was red, not green" creates a classic credibility dispute that only a jury can resolve.

Deposition Testimony

Use the moving party's own deposition testimony against them. Highlight inconsistencies between their deposition answers and their summary judgment declarations. Point to admissions that support your version of the facts. Excerpts from depositions of third-party witnesses can also establish disputed facts.

Documentary Evidence

Contracts, emails, text messages, photographs, medical records, and business records can all create factual disputes. If the moving party claims no agreement existed, producing a signed contract destroys their argument. Authenticate all documents through a proper declaration.

Expert Declarations

In cases involving standard of care, causation, or damages, an expert declaration that reaches a different conclusion than the moving party's expert creates a triable issue. The court cannot weigh competing expert opinions on summary judgment.

CCP 437c(b)(3) requires the opposing party to file a responsive separate statement. This is one of the most important documents in your opposition -- courts rely heavily on it to identify disputed facts.

Required Format

Your responsive separate statement must respond to each "undisputed material fact" asserted by the moving party. For each fact, you must state whether it is:

• Undisputed -- You agree with the fact as stated
• Disputed -- You disagree, and you must cite the specific evidence that creates the dispute

Your declarations are the evidentiary backbone of the opposition. Every factual dispute you raise in the separate statement must be supported by admissible evidence, and declarations are the primary vehicle.

Personal Knowledge

Each declarant must testify based on personal knowledge -- facts they observed, experienced, or know firsthand. Statements like "I believe" or "I was told" are hearsay and will be stricken. Use "I personally observed" or "I was present when" instead.

Admissible Evidence

The declaration must contain facts that would be admissible at trial. Hearsay, speculation, and legal conclusions are all objectionable. Before including a statement, ask: "Could this person testify to this on the witness stand?"

Foundation for Documents

If you are attaching exhibits (contracts, emails, photographs), the declaration must lay foundation for each one: identify the document, explain how the declarant knows what it is, and establish its authenticity. Business records may require a custodian of records declaration.

CCP 437c(q) governs evidentiary objections on summary judgment. You may object to the moving party's evidence, and they may object to yours. This is a critical offensive and defensive tool.

Common Objections to File

• Hearsay (Evid. Code 1200) -- Statements by out-of-court declarants offered for their truth
• Lack of personal knowledge (Evid. Code 702) -- Declarant has no firsthand knowledge of the facts
• Lack of foundation (Evid. Code 403) -- No showing that exhibits are authentic or that declarant can identify them
• Speculation and conjecture -- Conclusions not based on percipient observation
• Legal conclusions -- Declarant states legal opinions rather than facts
• Improper expert opinion (Evid. Code 801-802) -- Expert testimony outside their expertise or without adequate basis

Format Requirements

Objections must be filed in writing and served with your opposition papers. Each objection should identify: (1) the specific evidence objected to by quoting it, (2) the ground for the objection, and (3) the applicable Evidence Code section.

If you need more time to gather evidence to oppose the motion, CCP 437c(h) provides a mechanism to request a continuance. This is not a delay tactic -- it is a substantive right when you can show that essential evidence exists but is not yet available.

What You Must Show

Your declaration in support of a continuance must state:

• What specific facts you expect to discover (not vague hopes)
• Why those facts are essential to your opposition
• What discovery you have conducted and what remains outstanding
• Why the evidence is not currently available (e.g., depositions not yet taken, document requests pending)
• How additional time will allow you to obtain it

When to Use This

A continuance request is appropriate when the motion is filed early in the case before discovery is complete. It is also proper when the moving party has obstructed discovery or when third-party records are pending. Courts are generally liberal in granting continuances when the showing is adequate.

Under CCP 437c(f), a party may move for summary adjudication of individual causes of action, affirmative defenses, or claims for damages -- even if summary judgment of the entire case is not appropriate.

How This Affects Your Opposition

If the moving party filed for summary judgment but only carries their burden on some claims, the court may deny summary judgment but grant summary adjudication on the claims where no triable issue exists. Your opposition should address each cause of action separately to preserve every claim.

Strategic Consideration

Even if you cannot defeat the motion as to every claim, defeating it as to one or more causes of action keeps those claims alive for trial. Focus your strongest evidence on the claims that matter most to your case.

A complete opposition to a motion for summary judgment typically consists of these documents:

DOCUMENT 1: MEMORANDUM OF POINTS AND AUTHORITIES

I. INTRODUCTION
   Brief summary of why triable issues exist and the
   motion should be denied.

II. STATEMENT OF FACTS
   Your version of the facts, citing to your declarations
   and evidence. Tell the story from your perspective.

III. LEGAL STANDARD
   CCP 437c standard, Aguilar burden-shifting framework.
   Moving party bears initial burden; if met, burden shifts
   to opposition to show triable issue.

IV. ARGUMENT

   A. Moving Party Failed to Meet Initial Burden
      [If applicable -- argue their evidence is insufficient]

   B. Triable Issues of Material Fact Exist
      1. [Disputed Fact #1] -- cite declarations, depositions
      2. [Disputed Fact #2] -- cite documentary evidence
      3. [Disputed Fact #3] -- cite expert opinion

   C. Evidentiary Objections Undermine Moving Party's Case
      [If key evidence is objectionable]

   D. Continuance Is Warranted Under CCP 437c(h)
      [If discovery is incomplete -- optional]

V. CONCLUSION
   Request denial of the motion in its entirety, or in
   the alternative, deny summary adjudication as to
   specific causes of action.


DOCUMENT 2: RESPONSIVE SEPARATE STATEMENT

   Fact No. 1: [Moving party's fact]
   Response:   DISPUTED. [Your version + evidence cite]

   Fact No. 2: [Moving party's fact]
   Response:   UNDISPUTED.

   Fact No. 3: [Moving party's fact]
   Response:   DISPUTED. [Your version + evidence cite]

   Additional Material Facts:
   Fact No. 25: [Your additional fact + evidence cite]
   Fact No. 26: [Your additional fact + evidence cite]


DOCUMENT 3: DECLARATIONS

   - Declaration of [Party] in Opposition to MSJ
   - Declaration of [Witness] in Opposition to MSJ
   - Declaration of [Expert] in Opposition to MSJ
   [Each with personal knowledge, admissible facts, exhibits]


DOCUMENT 4: EVIDENTIARY OBJECTIONS

   Objection No. 1:
     Evidence:  [Quote the objectionable statement]
     Ground:    Hearsay (Evid. Code 1200)

   Objection No. 2:
     Evidence:  [Quote the objectionable statement]
     Ground:    Lack of personal knowledge (Evid. Code 702)


DOCUMENT 5: COMPENDIUM OF EXHIBITS

   Exhibit A: [Contract / Agreement]
   Exhibit B: [Email correspondence]
   Exhibit C: [Deposition excerpts]
   Exhibit D: [Photographs / Records]