Summary judgment is a motion procedure whereby a party tries to prevent a case from going to trial by demonstrating to a judge that, as a matter of law, the opposing party cannot prevail. Though such motions can be brought by either plaintiffs or defendants, they are usually brought by defendants who hope to have the plaintiff's case thrown out of court before trial.

In order to win a summary judgment motion, the moving party must show that there is "no triable issue of material fact." This can be done by asking the Court to take judicial notice of certain facts that are beyond dispute, but it is also done by submitting declarations. The party opposing a motion for summary judgment often finds something objectionable in the declarations and registers objections as part of the opposition to the motion. Some judges make it a point to rule on the merits of those objections before proceeding with the motion itself, while others do not. The impact on appeal of a judge's failure to rule on those objections was somewhat in doubt until a recent decision in a case handled out of the Firm's San Francisco office, Demps v. San Francisco Housing Authority (2007) 149 Cal.App.4 th 564.

Demps sued his former employer, the San Francisco Housing Authority, and his former supervisor, claiming discrimination based on race, color, national origin, mental disability and age. He also claimed retaliation. The Firm brought a motion for summary judgment on behalf of the defendants demonstrating, through the moving papers, that there was no legal merit to Demps' claims. In opposition, the attorney for Demps filed declarations containing a number of things that the defendants felt were improper. Appropriate objections were therefore lodged to those portions of the responsive papers containing inadmissible material.

The Court granted the motion for summary judgment. However, it did not rule on the evidentiary objections in doing so. Demps appealed the judgment against him and the appellate court ruled that the effect of a failure by the trial court to rule on evidentiary objections is that such objections are deemed waived. Therefore, the objectionable material is in the appellate record for the court of appeals to review.

Though this ruling can make it harder for parties who have successfully brought motions for summary judgment at the trial level to prevail in the court of appeal (because the objectionable material, if not ruled on, comes in anyway), the court of appeals in the Demps case nonetheless ruled in favor of the defendants. In short, even though the material filed by Demps in opposition to the motion was considered by the court of appeals, it still found that there was no triable issue of material fact and, therefore, sustained the trial court's ruling in favor of the defendants.

The Demps ruling makes it incumbent on the attorneys for parties bringing summary judgment motions to make sure that the court rules on each of their objections before ruling on the motion for summary judgment.

The case was handled by Randall J. Lee and Laurie E. Sherwood of the Firm's San Francisco office.


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