This article originally appeared in The Recorder on June 12, 2020.

Most appeals, particularly those involving evidence, afford the appellate court a very circumscribed role. A court of appeal decides issues of law de novo but reviews findings of fact and discretionary decisions deferentially.

Summary judgment appeals are different. These generally give the appellate court the chance to walk in the trial judge’s shoes, applying the same standards. As the Court of Appeal put it in Ranchwood Communities v. Jim Beat Construction, “[i]n practical effect, we assume the role of a trial court and redetermine the merits of the motion.” Nevertheless, that walk can sometimes stray into hazardous territory for the appellant.

On summary judgment, a court must consider all the evidence and the inferences that can reasonably be drawn from it, and must view both in the light most favorable to the opposing party. This might give that party’s attorney a false sense of security, on the assumption that both the trial court and the appellate court must give them the benefit of the doubt. It would be a mistake, however, to stroll through summary judgment in the trial court thinking you will always get a do-over on appeal. The summary judgment procedure has nooks and crannies as to which the appellate courts are highly deferential, and these can be fatal if not scaled carefully in the trial court. Two recent decisions illustrate the point.

In Ducksworth v. Tri-Modal Distribution Services, plaintiff sued her employer for sexual harassment and racial discrimination. One defendant brought a motion for summary judgment on statute of limitations grounds, supported by a company vice-president’s declaration. In response to plaintiff’s claim that five other employees had been promoted preferentially, he declared that one of them was never promoted and the others were promoted so long ago as to create a time bar.

Plaintiff raised a hearsay objection. The problem was that the declaration was extremely vague as to foundation. The declarant said that he supported the managers who made promotion decisions, and that he had access to and had reviewed some personnel files, but it was silent as to where he got the information he related about the specific promotions at issue. Nevertheless, the trial court overruled the objection. Admitted into evidence, the declaration established essential uncontradicted facts in support of the statute of limitations defense, and the trial court granted summary judgment.

On appeal, the appellate court first had to decide whether to review the trial court’s evidentiary ruling independently or for abuse of discretion. It surveyed other decisions on the question of how to review summary judgment evidentiary decisions and found that a plethora came out in favor of abuse of discretion, while only two courts had opted for independent review. Noting the daunting complexity, volume, and pace of evidentiary objections commonly made to trial courts on summary judgment, the court concluded that logic as well as precedent supported an abuse of discretion standard.

With that, the appellate court was happy to defer to the trial court on the evidentiary ruling. It found the facts to be in “equipoise.” The declaration could be read to indicate that the declarant had taken his facts from company documents, and since no foundation was given for a business records or other hearsay exception for the documents, the hearsay objection would be well taken. Just as likely, though, was the inference that the declarant had personal knowledge of the facts he was stating, by virtue of his job duties. The court noted that the declaration had begun with the blanket statement that the declarant had “personal knowledge of each of the facts set forth herein ….” This common bit of boilerplate is often viewed as meaningless, but Ducksworth shows that in a close case it can help tilt the scales, if ever so slightly. Finding that either outcome was reasonable, the appellate court chose not to substitute its own conclusion for the trial court’s.

In Lowery v. Kindred Healthcare, a wrongful death action, summary judgment turned on the admissibility of an expert declaration. The elderly decedent had died from a stroke while under defendants’ care, which plaintiff alleged was fatal because of defendants’ failure to recognize and respond to her condition. Defendants moved for summary judgment on the ground that plaintiff could not establish causation, presenting the detailed expert declaration of a neurologist in support. Plaintiff opposed the motion with the cursory declaration of a physical medicine and rehabilitation expert, who opined without explanation that if defendants had acted immediately, the stroke’s severity would have been reduced and it would not have contributed to the victim’s death. Defendants objected on the ground that plaintiff’s expert had not been shown to be qualified to render an opinion on the cause of death. The trial court sustained the objection, held there was no triable issue of fact on the issue of causation, and granted summary judgment.

Plaintiff challenged exclusion of the declaration on appeal, but the appellate court concluded that the exclusion of an expert opinion is reviewed for abuse of discretion. Finding the exclusion to have been reasonable, the court of appeal declined to reverse on this basis. 

Plaintiff had one more arrow in her appellate quiver. She argued that the trial court had erred in refusing to grant her leave to file a supplemental declaration. But the court of appeal found this to be yet another aspect of summary judgment reviewable for abuse of discretion. It noted that the request to supplement came at the hearing conducted a month after the evidentiary objection had been filed – a problem that could have been avoided by asking for a continuance early on – and had no problem affirming on this ground as well.

Ducksworth and Lowery carry a lesson for anyone making or opposing summary judgment motions – avoid shortcuts, because you might not be able to retrace your steps on appeal. Or, as the Ducksworth court more colorfully put it: “Why walk so near the cliff’s edge when the view is just as fine at a safer distance?” To carry the metaphor one step further, make double sure that you’re on the right path from the start – don’t assume that de novo review of summary judgment will provide a safety rail to protect you from adverse trial court decisions.

On Appeals is a monthly column by the attorneys of the California Appellate Law Group LLP*, an appellate boutique with offices in San Francisco, Los Angeles, and San Diego. Charles Kagay is of counsel with the firm. He has decades of experience handling appeals that involve complex or novel legal questions and is certified by the State Bar as a California appellate specialist. Find out more about Charles and the California Appellate Law Group LLP at

*In July 2022, the California Appellate Law Group was renamed the Complex Appellate Litigation Group.

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