Teselle

This case illustrates the primacy of the complaint in measuring the materiality of the facts which a motion for summary judgment must address. It involves the relationships of at least four subdivisions of the summary judgment statute. (Code Civ. Proc., § 437c, subds. (b)(1), (2), (3), (p)(2). )

The trial court granted defendants’ motion for summary judgment on the ground that plaintiff failed by one day to file a timely opposition statement of disputed material facts. (§ 437c, subd. (b)(2).) It said the failure was “a sufficient ground, in the court’s discretion, for granting the motion” pursuant to section 437c, subdivision (b)(3). The court further found that defendants set forth a prima facie case for judgment with their moving papers and evidence. (See § 437c, subd. (p)(2).)

We shall conclude that the late filing of an opposition statement does not violate the policies of subdivision (b)(2) or (3) of section 437c and that, because the moving parties’ separate statement (§ 437c, subd. (b)(1)) did not address a material fact in the complaint, it did not assert a prima facie case of entitlement to a summary judgment and did not shift the burden to plaintiff to file an…