Summary judgment motion deadlines modified by new legislation

Have you ever wondered why most motion dates under the California Code of Civil Procedure are based on "court days," while motions for summary judgment, some of the most difficult and time-consuming motions, are based on "calendar days?" The most obvious problem with this wording is that a judge receives a timely reply brief only five days before the hearing, making it difficult to adequately prepare and provide a written tentative ruling for the attorneys. For example, a motion set for a Tuesday after a three- or four-day weekend may result in little or no time at all to consider the reply while fully preparing for the hearing. Often, a thorough review of the reply brief can have a significant impact on the judge's ultimate decision.

To address this concern, the California Judges Association, working collaboratively with the Conference of California Bar Associations (CCBA), the Consumer Attorneys of California, and the California Defense Counsel, successfully shepherded AB 2049 through both houses with little to no opposition. It was signed into law by Gov. Newsom and will take effect on Jan. 1, 2025. To ensure that all parties will still have the same number of days to file their opposition and reply briefs, all deadlines have been extended by adding six calendar days to each.

It would not have been acceptable to all stakeholders to simply make the reply due five court days before the hearing, as that would have left inadequate time to respond to the opposition. Conversely, converting all filing deadlines to their court-day equivalent would have extended the entire summary judgment timeline to nearly four months long.

This amendment to the summary judgment statute (Code of Civil Procedure section 437c) is the first structural change to California's summary judgment law since the early 2000s. Since its inception in 1933, section 437c has always used calendar days rather than the court days common to almost all other motion filing requirements. This is likely because at the time, "court days" was not a part of the legislative lexicon. We can begin to see statutes differentiate between "days" and "court days" in the 1980s, as the term "judicial days" began to take hold in new legislation. For example, the earliest versions of Code of Civil Procedure section 1005, governing service of moving papers, originally used "days" instead of "court days". (See Stats. 1919, ch. 195, § 1, pp. 289-290; Stats. 1933, ch. 744, § 175, p. 1897.)  It wasn't until 1986 that the term "court days" was added to the statute (referring to opposition papers). (Stats. 1986, ch. 246, § 1, pp. 1206-1207.) 

Circling back to 437(c)'s own evolution, we see the first few amendments in the late 1930's, with few substantive changes to the timeline. (See Stats. 1937, ch. 533, § 1, pp. 1545-1546; Stats. 1939, ch. 331, § 1, pp. 1671-1672.) In 1983, the Legislature extended the notice period from 10 days to 28 days (Stats. 1983, ch. 490, § 1, pp. 1990-1991), and in 2002, the notice period was again extended to 75 days. (Stats. 2002, ch. 448, § 5, pp. 2523-2524.) Another noteworthy amendment came in 1992, where the statute added "two court days" to the period of notice for motions served via overnight delivery. (Stats. 1992, ch. 339, § 1, pp. 1307-1308.) 

Despite this amendment and the change to "court days" in Code of Civil Procedure § 1005 in 1986, as well as the 28 separate amendments made to 437c since 1933, the summary judgment statute has stubbornly held onto the word "days." There exists little publicly accessible information on any lobbying or reasoning behind the limited changes to 437(c)'s timeline. This suggests that the Legislature had not previously considered the potential difficulties for the attorneys and judicial officers, which AB 2049 has now rectified.

 So, we must accept that summary judgment motions remain an outlier with filing requirements based on calendar days rather than court days, but the new statute nonetheless addresses the reply brief problem. A moving party will now be required to file their motion and accompanying documents 81 days, rather than 75 days, before the hearing, opposition will be due 20 days before the hearing rather than 14, and the reply brief must be filed 11 days before the hearing rather than just 5 days.

Additional minor changes were made to the summary judgment statute consistent with existing legal principles, such as that no new evidence may be included with a reply brief, and that the filing of a second summary judgment motion requires court approval and a showing of good cause. These changes to the summary judgment statute adjust the timelines to give judicial officers more time to adequately prepare while not substantively tilting the summary judgment statute in favor of either side.

Considering the impact of motions for summary judgment on pending litigation, the time required for the parties to draft the motions, opposition and reply, the new timeline will be of substantial assistance to the court and all interested parties. Courts are required to thoroughly review these motions, typically preparing tentative rulings and entertaining oral arguments. Appeals of summary judgment rulings are common, and the Court of Appeal reviews the trial court's decision de novo. These extra days afford trial courts more time to prepare robust rulings, a likely plus both for the litigants and any reviewing court.

The statutory amendments will also enable trial courts to more readily hear the motion on the date set, rather than having to continue it or take the ruling under submission due to inadequate time to prepare. On motions for summary judgment set for hearing on or about the deadline of thirty days before trial (See Code Civ. Proc. § 437(c)(a)(3)), the litigants will benefit from a ruling on or near the hearing date, enabling them to properly tailor their trial preparation and the court to maintain the trial date as scheduled.

Questions do exist as to how the new deadlines will apply to a motion for summary judgment filed after Jan. 1, 2025, on a case that was filed prior to that time, or to motions filed before that date but set for hearing in the new year. While I have my own ideas, these are questions that should be resolved in actual cases, rather than in the legal press. Parties who find themselves in disagreement on the proper interpretation of the filing requirements during this transitional period would do well to involve their judicial officer sooner rather than later, or simply err on the side of caution. Even where an opposition or reply is filed late, the judge nonetheless has discretion to consider it (or to reject it). (See Gonzalez v. Santa Clara County Dept. of Social Services (2017) 9 Cal.App.5^th 162, 158; Cal. Rules of Court, rule 3.1300(d).)  

The importance of summary judgment motions in civil cases cannot be overstated. The additional time between reply brief and hearing date provided by AB 2049 is a step forward for both judicial efficiency and serves the court's mission of providing equal justice for all who come before us. The California Judges Association is grateful to Senate Judiciary Committee Chair Tom Umberg and bill sponsor Assemblymember Blanca Pacheco for their support of this long-sought-after legislative change. It is worthy of note that both are attorneys, at a time when the number of attorneys in the California legislature has dwindled.