San Diego Watercrafts, Inc. v. Wells Fargo Bank

We reverse a summary judgment because the trial court erred in considering evidence first submitted with the reply filed by defendant, the moving party, and because plaintiff, in opposition to the motion, presented triable issues of material fact whether defendant breached a lease by failing to honor a “right of first refusal.” In reaching the first of these conclusions, our previous opinion relied in part on United Community Church v. Garcin (1991) 231 Cal.App.3d 327, 337 [ 282 Cal.Rptr. 368 ] (United Community Church, superseded by statute on other grounds). The case enunciated a “Golden Rule” that, in ruling on a motion for summary judgment, evidence not referenced in the separate statement of undisputed facts does not exist. We granted rehearing because we failed to discuss Kulesa v. Castleberry (1996) 47 Cal.App.4th 103 [ 54 Cal.Rptr.2d 669 ] (Kulesa), which articulated a contrary set of principles to be used in analyzing separate statements.

We now decline to follow Kulesa because it misinterpreted the summary judgment statute. But we also disagree with United Community Church in that the absolute prohibition on consideration of nonreferenced evidence is…