(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this birth injury/personal injury case and its proceedings.)
The appellate courts have emphasized that a defendant’s failure to provide a foundation for the documents on which it is relying will require denial of a motion for summary judgment. In Sanchez v. Hillerich & Bradsby Co. (2002) 104 Cal.App.4th 703, 719-710, 128 Cal.Rptr.2d 529, 541-542, an attorney for a defendant offered a declaration in support of a motion for summary judgment. That declaration attested to the purported authenticity of exhibits in support of motion for summary judgment. The declaration failed to show that attorney was custodian of records, that the documents were prepared in the regular course of business, that he prepared documents or circumstances under which the documents were created. The trial court ruled that the documents were inadmissible due to lack of foundation, and the appellate court affirmed that ruling.
The defendant’s Separate Statement of Material Facts must cite to admissible evidence. A violation of this rule is sufficient in itself to deny the motion for summary judgment. C.C.P. § 437c(b). Because the defendant’s Material Facts 3 and 4 are unsupported by admissible evidence, the motion for summary judgment can be denied on that basis alone. For more information about this topic, please visit http://www.sacramentopersonalinjurylawyerblog.com/.
The defendant may attempt to add additional evidence to cure this defect in her reply brief. If she does so, that effort should be rejected. New evidence can be offered in a reply only in exceptional circumstances. Plenger v. Alza Corp. (1992) 11 Cal.App.4th 349, 362 n.8, 11 Cal.Rptr.2d 811, 819 n.8.
This new evidence should not be considered by the Court, because it is not referenced in the defendant’s Separate Statement, which she is required to submit in support of a motion for summary judgment. See United Community Church v. Garcin, 231 Cal.App.3d 327, 337, 282 Cal.Rptr. 368, 376 (1991) ( This is the Golden Rule of Summary Adjudication: If it is not set forth in the separate statement, it does not exist. ). The plaintiff objects to new evidence offered for the first time in the defendant’s reply, on the basis that it is untimely. (See Part 10 of 13.)
For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.