Curing technical defects in summary judgment proceedings

To err is human; to forgive divine. Especially in opposition to summary judgment motions, where inadvertent mistakes in the submission of evidence or in the responsive separate statement can result in the loss of the case.   

In the recent case of Walton v. Victor Valley Community College District, 2026 DJDAR 2821 (April 16, 2026), an action for sexual harassment and related claims, the Court of Appeal held that the trial court abused its discretion in refusing to give plaintiff's counsel, who submitted an inadvertently deficient declaration in opposition to the defendant's summary judgment motion, an opportunity to correct the declaration. The declaration did not assert that it was signed under penalty of perjury or set forth the place of execution as required by Code Civ. Proc., section 2015.5.

The appellate court noted that in a summary judgment proceeding the opposing party should be "grant[ed] an opportunity to cure [a curable defect] so the motion can be resolved on the merits." Walton at 2824. The court stated that "[t]echnical oversights in declarations of counsel are just such curable defects." Id.

Factors that went into the appellate court's decision included the fact that a dispositive motion was at issue, the mistake was curable, plaintiff's counsel promptly filed a notice of errata and a corrected declaration following the hearing, and the defendant did not demonstrate that it would suffer any prejudice if the court accepted the corrected declaration.

Both moving and opposing parties can seek relief

Although the Walton case involved an opposing party being granted relief from a curable defect, in some circumstances a moving party might also be able to obtain such relief. In Gall v. Smith & Nephew, Inc., 71 Cal. App.5^th 117, 125 (2021), relied on by the court in Walton, the appellate court held that the trial court acted within its discretion in accepting a corrected declaration filed in support of a summary judgment motion where the moving party's counsel's original declaration failed to conform to the requirements of Code Civ. Proc., section 2015.5.

However, as pointed out by the court in Parkview Villas Assn., Inc. v. State Farm Fire & Casualty Co., 133 Cal. App.4^th 1197, 1213 (2005), also cited by the court in Walton, a trial court's denial of a summary judgment motion, "which simply means the case will proceed to trial," is "more readily affirmed than a decision to grant the motion based on a curable procedural default, which deprives the opposing party of a decision on the merits." 

Walton should apply to all dispositive motions

Although the Walton case specifically involved a summary judgment motion, the court's Opinion used the term "dispositive motion," thereby indicating that its holding applied to more than just summary judgment motions, but to all dispositive motions. ("Refusing to permit a cure hamstrung Walton's ability to oppose a dispositive motion..." Id. at 2824.) Similarly, in Ambriz v. Kelegian, 146 Cal. App.4^th 1519, 1528 (2007), which also arose out of a summary judgment proceeding, the Court of Appeal held that the trial court "should have allowed [plaintiff's] counsel to attempt to remedy the perceived evidentiary failures before ruling against [plaintiff] on a dispositive motion."  (Emphasis added.)

Lack of prejudice and litigation conduct       

The courts can consider whether allowing a party to cure a defect will cause prejudice to the opposing side. The Walton court cited a lack of prejudice to the defendant as one of the reasons why the trial court should have accepted plaintiff's counsel's corrected declaration: "And the [defendant] has not explained how it would have been prejudiced if the trial court had accepted the cure." Walton at 2824.

In Parkview Villas, supra, the court held that the plaintiff's deficient responsive separate statement filed in opposition to the defendant's summary judgment motion was a curable defect and that the trial court should have given the plaintiff the opportunity to file a corrected separate statement. Among the factors considered by the court was that the defendant "suffered no prejudice, other than the expense that would be incurred in preparing a further reply brief and appearing at an additional hearing." Id. at 1216.

Significantly, the court in Parkview Villas also took into account the plaintiff's litigation conduct. Analogizing to the standard for a judge to order a terminating sanction, the court stated that there was "no showing" that the plaintiff "had previously violated any pretrial rules or engaged in any dilatory conduct warranting imposition of a terminating sanction." Id. at 1215-1216.

Thus, a procedural error is not necessarily a death knell in a summary judgment proceeding. In the proper circumstances, the trial court judge can and should allow the errant party to cure the defect.