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Recently I have noticed a trend of civil litigators attempting to use summary judgment or summary adjudication in family law. There are some cases that allow it after judgment, but summary judgment/adjudication is not appropriate for family law for a number of reasons. First, the language of Code of Civil Procedure section 437c does not really apply to family law. In the case of summary judgment, the code section by its own language only applies where a complete judgment may be entered. That virtually excludes all family law cases, because of the multiple issues and factual disputes. Second, in the case of summary adjudication, the language of the statute applies to "causes of action" and "affirmative defenses" to causes of action, to whether a "plaintiff owes a duty to a "defendant," and to punitive damages under Civil Code section 3294. None of these categories are found in family law. There are no causes of action or affirmative defenses to causes of action; there are no plaintiffs and defendants; and there are no damages under Civil Code section 3294. I wonder how the portion of Code of Civil Procedure section 437c that only allows an issue of a duty from a plaintiff to a defendant to be adjudicated would apply to petitioners and respondents in a family law case. Would the duties of the first to file (the petitioner) be the only duties subject to summary judgment? Third, summary judgment/adjudication is a very complicated procedure with many traps for the unwary. With 80% of family law cases ending with at least one person without a lawyer, allowing the use of summary judgment would give parties with lawyers a huge advantage over parties without lawyers. Fourth, summary judgment/adjudication requires a great deal of time and attention at the trial court level, both because of its complicated procedural requirements and because of its draconian consequences when granted. Some civil law and motion courts are currently limiting the number of summary judgment/adjudication motions that can be heard on a single day. In one county the limit is six. Family law courts routinely have to deal with many more family law motions in each law and motion hour. Summary judgment/adjudication would add to the current clogs in the family law court.
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