Summary Judgment Practice

Motions for summary judgment are a pain in the neck and elsewhere. I suspect they are a pain for defense attorney’s too, especially when they file MSJ’s just because their clients make them do it, even if there’s no hope for prevailing.

Once in awhile I run across a case that just summarizes a procedure or rule or something in a way that’s instructive and sometimes even entertaining.

MSJ’s are a pain because they are tedious. The statements of undisputed facts, which are often filled with arguments, not facts, and dozens of nonessential or irrelevant facts. Then you have the evidence, including dealing with declarations, documents and other exhibits. Making indexes. It’s just tedious and that doesn’t even count writing the brief. (The only reason I like MSJ’s from a plaintiff’s perspective is that, well, defendant has to reveal at least part of his/her hand and declarations are often useful at trial during cross-examination.)

But it’s even harder for the lay person. Just ask Gabriel Roman, who filed a lawsuit against BRE Properties alleging discrimination in housing under FEHA.

Roman alleged in his lawsuit that BRE engaged in disability discrimination when he went to one of BRE’s apartment complexes to view available apartments. Before he went to look at the apartments, he called the apartment complex and the leasing agent told Roman that the leasing agents were booked for the day. So guess what Roman did? He went to the apartment complex anyway. And all of the leasing agents were busy and he didn’t get to look at an apartment. So he left. And he never submitted a rental application.

But Mrs. Roman did make an appointment for a few days later to look at apartments, but guess what? She was a no show!

Obviously, it was time for a lawsuit. So Roman sued BRE for disability discrimination, alleging his disability was emotional and physical. Who would argue that Roman was afflicted with emotional problems? I mean, who would file a lawsuit over something like this, unless the plaintiff was emotionally tormented?

Roman’s torment was just beginning.

Roman filed his lawsuit, and a fool was his attorney—that fool being Roman. And Roman’s client was a fool, too.

If the lawsuit itself isn’t sufficient evidence of that, then consider this: Roman never responded to BRE’s discovery requests and he and Mrs. Roman did not appear for their noticed depositions. So BRE filed a motion for summary judgment.

The Romans provided declarations in support of their opposition to BRE’s MSJ but they weren’t effective. For example, Roman never offered evidence that he had a disability and certainly no medical evidence documenting a disability, though one could argue Roman has an emotional disability for filing this lawsuit. (Exhibit A – Roman’s Complaint)

The trial court was not moved by Roman’s legal prowess and forceful legal arguments and reams of evidence and granted BRE’s MSJ. Not only that, but the trial court also awarded BRE costs of $4,994.98.

So Roman, offended by this injustice, decided to appeal, using the same counsel as before, that foolish attorney Roman, who obviously is not an attorney.

But the appeals court didn’t buy into Roman’s compelling case either. But the court does provide a good narrative of the basics of summary judgment practice, and so I recommend this decision to those new lawyers out there.

But the interesting part of the opinion comes in the appeals court’s review of the awarded costs.

Readers of this blog are familiar with Williams v. Chino Valley Independent Fire Dist., which held that trial courts have discretion to award costs and attorney’s fees to a prevailing party in a FEHA case. “An unsuccessful FEHA plaintiff should not be ordered to pay the defendant’s fees or costs unless the plaintiff brought or continued litigating the action without an objective basis for believing it had potential merit.”

Gee, applying that standard to Roman, well, you’re right. Roman’s gonna have to pay, and hopefully a lot. And since Williams was decided after the trial court awarded costs, the appeals court sent the case back to the trial court so the court could reconsider its award in light of Williams.

So perhaps Roman might have to actually pay more in costs, since his lawsuit appears to me, a plaintiff’s attorney reviewing the evidence in the light most favorable to plaintiff, frivolous. And the court should consider the fact that Roman refused to play when he started this litigation game by refusing to respond to discovery requests and evading his deposition.

Cases like this give lawyers a bad name, even though in this case, it wasn’t started by a lawyer. Details!

Roman v. BRE Properties
237 Cal.App.4th 1040 (2015)

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