By: Roger J. Buffington, Esq.
People often ask Buffington Law Firm’s litigation team to try to get a lawsuit “thrown out” before trial. Some lawsuits are outright frivolous. Not infrequently the people that our Firm represents are quite confident that a lawsuit in which they are involved is completely lacking in merit and accordingly should not be allowed to proceed. Often we agree with our clients about the lack of merit in a hostile plaintiff’s lawsuit. It is completely understandable that someone who gets caught up in what he or she believes is a meritless lawsuit wants legal counsel to get the Court to throw the thing out, preferably with a resounding thud.
The law provides for various ways to cause a Court to dismiss a lawsuit before trial. In California State Court the two leading ways are a Demurrer, and a Motion for Summary Judgment. A detailed discussion of each of these two motion types is beyond the scope of this article. But basically, a Demurrer is a pleading in which the moving defendant or cross-defendant (or respondent in a probate litigation case) argues to the Court that even if it believes all of the facts that the plaintiff or petitioner alleges in their lawsuit, the complaint or petition fails to state a valid triable legal claim and the Court should accordingly dismiss it. The main difficulty in winning these motions is that the Court is legally required to accept all the allegations that the plaintiff makes to be true. So, to use a banal hypothetical, if a lawsuit about an auto collision alleges that the defendant ran a red light leading to the accident, the Court has to accept this allegation in the Complaint as true, even if the defendant believes that he or she will succeed at proving at trial that such was not the case, i.e. that the light was green or yellow. Of course, in the early stages of a lawsuit the Court obviously has no idea and no way of knowing the actual truth of the matter. Determining this is the purpose of trial. So a Demurrer is not an effective tool in a situation like this, since the Court is legally obliged (absent a judicial noticeable situation, which we will not discuss here) to assume the truth of the Plaintiff’s allegations for the purpose of ruling on Demurrer. Put simply, Demurrers are usually not an effective tool to dismiss a lawsuit, although sometimes they are.
A Motion for Summary Judgment is more powerful for either a Plaintiff or a Defendant. Here, the moving party is arguing facts as well as law and can introduce evidence. Thus, unlike a Demurrer, a moving defendant can allege facts that contradict the Plaintiff’s Complaint, or a Plaintiff can attempt to prove that his or her facts as alleged are in fact true and supported by evidence. The moving party in a Motion for Summary Judgment (or Adjudication) is arguing that there are no material facts in dispute, and that the moving party is furthermore entitled to judgment as a matter of law. What makes a Motion for Summary Judgment hard to win is the requirement that the moving party must show that there are no material facts in dispute. In many, perhaps most, civil lawsuits there are material facts in dispute. Going back to our banal auto collision case, perhaps five witnesses claim that the light was green, but another witness will swear that it was red. If admissible, this would constitute disputed material facts. In Summary Judgment, unlike trial, a Court is not permitted to “weigh” evidence or decide which evidence to believe and which not. This process is reserved for trial. Thus, Motions for Summary Judgments are hard to win because most cases and trials require a Court to weigh competing evidence — often important evidence. By the way, not only are these Motions hard to win, they are expensive to bring. Essentially, a Motion for Summary Judgment is an effort to try the case by pleadings and documentation, rather than “live” trial evidence. Preparing all of the necessary pleadings and evidence is difficult, time-consuming, and thus expensive. Good lawyers often determine for a given case that it is a better cost/benefit decision to simply try a case rather than to attempt to win it by Motion for Summary Judgment. Most clients have limited litigation budgets and a Motion for Summary Judgment can be very expensive.
It should be mentioned here that often the most effective way to get rid of a lawsuit before trial is to settle the lawsuit out of court. If the Plaintiff’s lawsuit is not completely absurd, it may be a sound dollar and cents decision for both sides to settle the case before trial. Trials notoriously are sometimes pretty expensive, not to mention time-consuming and nerve-wracking. Buffington Law Firm’s litigation team often settles lawsuits in numerous ways, including professional mediation. In Trust litigation our Firm has broad experience in the Breslin mediation process.
With respect to Demurrers and Motions for Summary Judgment, it is my opinion that Courts are too reluctant to grant meritorious ones. During my approximately 28 years of practicing law, I have seen Motions for Summary Judgment increasingly become less and less likely of being granted. I have personally and repeatedly seen Courts claim that there are material facts in dispute when such was simply not the case. Meaning no disrespect, but Courts are sometimes their own worst enemy in terms of having overburdened dockets on the one hand and refusing to grant meritorious Demurrers or Motions for Summary Judgment on the other hand. Of course, reasonable minds can respectfully differ in a given situation. But many lawyers will agree that there is a time and place for dispositive Motions to dispose of a frivolous claim. But lawyers increasingly are reluctant to bring them because there is a growing (albeit not universal) belief that courts are unduly hostile towards granting them..
If you are involved in a Trust, business, or real estate dispute, Buffington Law Firm’s experienced litigation team invites you to call us for a Free Legal Consultation. All consultations are with an experienced trial lawyer and are completely confidential and protected by the Attorney-Client Privilege. And of course, there is never any charge or obligation for the consultation.