Petition Persuasion Perdition

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PetitionPersuasionPerdition
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Summary Judgment

• Function
• Types
• Pure Question of Law
• Missing Element
• Evidence as a Whole
• 1986 Federal Trilogy
• Matsushita
• Celotex
• Liberty Lobby

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General Considerations

• General Scope (CCP 437c(a))
• Time for Hearing (CCP 437c(a))
• At least 75 days before hearing
• Add days for mailing (CCP 1005 d/n/a)
• At least 30 days before trial
• Thus At least 105 days before trial!

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Moving Papers

• Evidentiary Support (CCP 437c(b)(1))
• Separate Statement (CCP 437c((b)(1))
• Undisputed material facts
• References to supporting evidence

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Opposition Papers (CCP 437c(b)(2)(3))

• Timing 14 days before hearing
• (CCP 1005 applies)
• Opposing Evidence
• Separate Statement
• Response to Moving Partys Separate Statement
• Statement of Other Disputed Material Facts

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Reply Papers (CCP 437c(b)(4))

• Timing 5 days before hearing
• (CCP 1005 applies)
• No new arguments or facts

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Evidence In the Box

• Admissible Evidence (CCP 437c(d))
• Declarations
• On personal knowledge (CCP 437c(d))
• Not Bad Faith (CCP 437c(j))
• Objections (437c(b)(5))
• Made at or before hearing
• Waived if not made (437c(d))

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Summary Judgment Standard(CCP 437c(c))

• No triable issues as to any material fact
• Moving Party Entitled to JAMOL
• All reasonable inferences for nonmovant
• No weighing of evidence
• No credibility determinations
• Collateral attacks insufficient (437c(e))
• Except sole witness or state of mind
  (437c(e))

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Summary Judgment Burdens(CCP 437c(p))

• MOVING PARTY
• P Each element no defense
• D 1 element not established or complete
  defense

• NON-MOVING PARTY
• D Triable issue as to claim or defense
• P Triable issue as to claim or defense

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Summary Adjudication(CCP 437c(f))

• Separate or in the alternative
• Scope
• 1 claim/defense
• Issue of duty
• Civil Code 3294 damages

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Courts Ruling(CCP 437c(g)

• DENIAL
• Written or oral order
• Specify 1 triable material facts
• Specifically refer to evidence

• GRANT
• Written or oral order
• Specify reasons for determination
• Specifically refer to evidence

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Denial for More Discovery(CCP 437c(h)(i))

• Declaration showing facts
• Cannot then be presented
• Justify Opposition
• Application to Continue Motion
• Further continuance permitting discovery

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Impact of Ruling(CCP 437c(n))

• Summary adjudication deemed established
• No bar as to remaining claims
• No comment about grant/denial

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After Matter Submitted

• Snatch from jaws of defeat
• Elicit courts basis for decision
• Proposed order and notice of ruling
• Order a transcript

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Motions for Reconsideration

• Summary judgment Not unless newly discovered
  facts/circumstances/law (CCP 437c(f)(2))
• Grounds Generally (CCP 1008(a))
• Contents of Motion (CCP 1008(b))
• Punishment (CCP 1008(d))

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Review in the Appellate Court(CCP 437c(m)(1))

• Summ. Judgmt. Granted Appeal
• Motion Denied Peremptory Writ
• Timing 20 days after service of written notice
  of entry of order

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SUMMARY JUDGMENT APPLICATIONSThunder is good,
thunder is great, but it is lightening that gets
the job done.--Mark Twain
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Aguilar v. Atlantic Richfield Co.

• Claim
• Antitrust Claim for Conspiracy to Restrict
  Output and Raise Prices for CARB gasoline
• Ground for Motion
• Lack of Evidence of Conspiracy

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Defendants Evidence in the Box

• Company declarations stating that
• Pricing decisions made independently
• Decisions made non-collusively
• Higher prices made due to market conditions and
  as a result of capacity and production
  circumstances

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Plaintiffs Evidence in the Box

• Companies jointly gathered and disseminated
  capacity, production and pricing information
• Companies used common consultants
• Companies executed exchange agreements
• Expert opinion that evidence supported conspiracy
  allegation

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Simon v. Garfunkel Garbage Co.

• Claim
• Racially Based Wrongful Termination
• Ground for Motion
• Lack of Evidence of Racial Animus

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Defendants Evidence in the Box

• Simongarbage truck driver (unqualified for
  office work)
• (safety sensitive position under DOT
  regulations)
• Truck drivers must take random drug tests
• Subject to termination per DOT regs if failure or
  refusal
• Simon takes random drug test administered by
  independent laboratory
• Results show masking agent for marijuana
• Adulterated test refusal
• Failure/refusal removal from safety sensitive
  job
• Simons terminated for adulterated drug test
  under Garfunkels zero tolerance policy

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Plaintiffs Evidence in the Box

• Simon (African American) did not adulterate drug
  test
• Six years ago, Caucasian employee tested positive
  for marijuana, was not fired and was moved to an
  office job
• Six years ago, owner of the company gave
  plaintiff and other African American employees
  cup stating Garfunkel Garbage Slaves
• Four years ago, plaintiffs supervisor (who made
  termination decision) told Simon Black Panthers
  were simply black criminals
• There were two open office jobs at the time of
  Simons termination

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Mays v. Roy Chapman Corp.

• Claims
• Products Liability (Manufacturing and Design
  Defect, Failure to Warn) for Failed Hip
  Replacement Acetabular Component
• Grounds for Motion
• Lack of Evidence of Mfg. defect
• Design defect barred by preemption

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Defendants Evidence in the Box

• Chapmans artificial hip component was
  accompanied by a warning stating the acetabular
  component could fracture upon excessive exercise
• After his hip replacement surgery, Mays, 82 years
  old, engaged in strenuous gardening after which
  her heard a click and his hip replacement
  fractured
• Mechanical engineer tested the fractured device
  and concluded it could only have broken through
  excessive exercise and bending
• An RFA response conceding product was insertable
  medical device

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Plaintiffs Evidence in the Box

• Mays Declaration He could not recall having
  engaged in excessive exercise or bending and
  gardening work was ordinary
• Surgeons deposition She did not see any warning
  although it could have been in the box opened by
  the O.R. nurse

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Beaned v. United Airlines

• Claim
• Negligent design of airplanes overhead bin
• Ground for Motion
• Lack of Evidence of Negligent Design
• Negligence Claim Barred by Warning

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Defendants Evidence in the Box

• Flight attendant announced on flight that items
  stored in overhead might have shifted during
  flight and to be careful
• Airlines safety agent with millions of
  passengers on flights each year, only 135
  reported incidents of items falling from bins,
  with only 14 injuries worldwide
• Costs of retrofitting with net excessive

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Plaintiffs Evidence in the Box

• Passenger opened bin carefully and computer fell
  out and beaned Beaned
• Human factors expert warning is ineffective
  since objects fall out despite a passengers due
  care
• Other smaller airlines have retrofitted bins
  either with netting or raised lip on edge
• Other airlines prohibit storage of computers,
  rollies or heavy or sharp objects in bins

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Vocal Meaning and Passion
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Vocal Variety

• Pause
• Volume
• Rate
• Pitch
• Inflection

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Vocal Variety Meaning

• Bill Bell builds bells. The bells Bill Bell
  builds bang and bong on Beele Boulevard. Bill
  builds bells with brass bell balls. Bells bell
  balls build big bells. Bill Bell built brass
  ball-built bells for the Beals bull, Buell. Bill
  Bells bells, brass-ball-built for Beals
  Beele-based bull Buell, biased brass bell
  builders toward Bell brass ball-built bells. Boy!