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Winning At Trial… Before the Jury Sits Down

Pssst! I have a “secret” for you… well, it’s not exactly a secret, but it is a winning device that is underutilized in California – the Evidence Code 402 motion.

All attorneys and claims professionals are familiar with Motions for Summary Judgment (M.S.J.). They can be an effective “surgical” procedure for terminating claims in appropriate cases. The key is to know when the likelihood of success is in your favor. There are often logistical timing problems and hurdles to overcome under the present statutory scheme in California, which sometimes effectively render M.S.J.’s unavailable.

First, the case must truly be an action without merit or defense, meaning that, even assuming that everything the plaintiff claims is 100% true, there must still be no triable issues for a jury to determine. Generally, trial courts are required to make their determinations as to whether or not a triable issue exists, through a liberal interpretation of the facts of the case, most favorable to the plaintiff. That is, generally speaking, if there is any slim set of facts to support the claim, there is a triable issue and the motion for summary judgment will be denied. Code Of Civil Procedure, Section 437c.

Second, under the code, an M.S.J. must be served on all parties at least 75 days prior to the hearing (more, if the motion is served by mail). This is commonly well before pivotal discovery in the case, such as expert witness depositions, has been, or can be completed which may provide the foundational basis for the motion.

So what can be done if the foundation for the M.S.J. arises after the statutory cut off date for an M.S.J.? In the right cases, we can still defeat a claim early in the trial process, through the use of the Evidence Code 402 motion.

Section 402 of the California Evidence Code provides a method for an early determination of evidentiary issues. It provides that the court may hear and determine the question of admissibility of evidence outside of the presence or hearing of the jury.

We prevail by arguing that:

1                    The evidence established through the discovery process preceding trial did not leave any issue of sufficient relevance, substance or merit to rise to the level of a “triable issue”;

2                    Plaintiff would not be able to meet his burden of proof;

3          Plaintiff should, therefore, be required to provide his Offer of Proof to the court to show otherwise, and;

4          Barring that proof, the case should be dismissed and the Court, the parties and the jurors not be put to the burden and expense of going through the motions of a meaningless trial.

Dismissal of a lawsuit by a court is always strong and final action. All the more so, when the matter reaches the trial phase.  However, with a well‐crafted motion, properly documented with the evidence supporting the defense argument that all salient issues have been rendered moot or unprovable by the plaintiff, the Court can and will dismiss.

In a recent case involving a $250,000 property damage claim, upon receiving a “courtesy” draft of our motion just prior to trial, plaintiff’s counsel conceded the difficulties of proof in his case and agreed to settle for a cost of defense offer of only $2,500.  In another involving a personal injury demand of $165,000+, we answered ready for jury trial, made our “402 motion” and following a four‐hour hearing in which the court invited plaintiff and defense to make their respective Offers of Proof (well documenting the evidence presented and the arguments made to prevent the possibility of appeal), the court granted our motion in its entirety and dismissed the action outright, finding that there were no triable issues remaining and that plaintiff had no possibility of meeting his burden of proof.

End result?

•           A potential savings of the $465,000 or more in exposure to the insureds,

•           The actual savings of tens of thousands of dollars in attorneys and expert fees, jury fees and other related trial costs, and

•           The undying gratitude of two very pleased clients.

Donald D. Wilson

dwilson@caranclaw.com