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If my opponent in (limited civil) filed an MSJ, but I'm the one who should get it. Can I request it at the hearing?

Los Angeles, CA |

When we're arguing the MSJ at the hearing, can I just say, "At this time I wish to ask the court to grant summary judgment to the defendant in this case"? Would I have to pay the usual $500 to file an MSJ (retroactively)? Is there some rule against what I'm considering? I know anyone who reads this will say I'm dreaming and too inexperienced to know what a long shot this is, but I was actually thinking of filing it before I got the other side's motion. Any strategy tips?

Attorney Answers 4

  1. Best answer

    No, you would need to bring your own motion for summary judgment. You would have to notice it for a separate hearing (about 75 days notice). However, you are not completely dreaming. Had this been Federal Court, you could have responded in writing to your opponent's motion for summary judgment with a "counter-motion" for summary judgment which would then have been decided along with your opponent's motion. However, in your case, you need to bring your own separate motion, and cannot just ask for judgment at the hearing on your opponent's motion for summary judgment.

    THIS RESPONSE IS NOT LEGAL ADVICE. IT HAS BEEN PROVIDED FOR EDUCATION AND INFORMATION ONLY. Mr. Mann is licensed to practice in the State of California. There is no implied or actual attorney-client relationship arising from this educational exchange. Moreover, the facts provided by you were not sufficient to allow Mr. Mann to advise you specifically regarding what you should or should not do. You should speak with an attorney licensed in your state, to whom you have provided all the facts before you take steps that may impact your legal rights. Mr. Mann is under no obligation to answer subsequent emails or phone calls related to this matter, or to take any action whatsoever.

  2. If I understand your question correctly, the answer is no--you have to file a motion just like everyone else.

    Ms. Berjis is licensed to practice law in the State of California. The laws of your jurisdiction may differ and thus this answer is for informational and educational purposes only and is not to be considered as legal advice. Since all facts are not addressed in the question, this answer could change depending on other significant and important facts. This answer in no way constitutes an attorney-client relationship.

  3. In some cases, counsel agree to file "cross summary judgment motions," where they each file together on an agreed-upon briefing schedule. This often happens when there's a question of law that will decide the case, and the facts are pretty much agreed upon.

    A request for summary judgment at a hearing on the other side's motion will be summarily refused. The court will insist that you follow all the steps for such a motion in the Code of Civil Procedure, including all the document and timing requirements.

  4. My colleagues have provided correct advice. I write only to mention that, if the 75 days has not expired and you have sufficient time, the court may allow you to schedule a MSJ for the same hearing date.

    Experienced counsel probably filed and served the MSJ close to the 75 day cut-off so this option is probably not available to you. You cannot escape the filing fee.

    The 75 days is jurisdictional. Your first order of business is to determine if the motion was timely served and filed, plus added time re manner of service – if not the court will have to deny the motion without prejudice. If a trial date is approaching this may doom an improperly served MSJ. See Code of Civil Procedure section 437c.

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