Case Name: Foley & Lardner v. Exley

Case No.: 1-12-CV-234034

Plaintiff Foley & Lardner moves for summary judgment against defendant Ray Exley, M.D.

This motion was filed on May 30, 2013—over a year ago. It has been continued several times, at Defendant’s request. The current hearing date was set at the conclusion of a discussion among the parties and the court, specifically to give Defendant more than ample time to respond to the motion. Despite these continuances and the circumstances under which this hearing date was set, nevertheless Defendant’s opposition was untimely filed on May 21, 2014: less than 14 days before the date set for hearing. (See Code Civ. Proc., § 437c, subd. (b)(2).) Nevertheless, Plaintiff did not object to the late filing and timely filed a reply addressing the substantive merits of Defendant’s opposition, so there does not appear to be any prejudice to Plaintiff from the late filing. Given the preference for resolving matters on the merits, the court exercises its discretion to consider the late-filed May 21 opposition papers.

However, Defendant then filed a “revised” opposition on May 29, 2014, containing additional substantive information and amounting to a sur-reply; there is no authority for such a filing, and Plaintiff objects. Accordingly, Plaintiff’s motion to strike is granted.

Defendant also failed to provide a code-compliant separate statement with his opposing papers. While such a failure may by itself constitute a sufficient ground for granting the motion for summary judgment provided that Plaintiff meets its initial burden (see Code Civ. Proc., § 437c, subd. (b)(3)), the court declines to exercise its discretion to grant the motion on the basis of this procedural deficiency.

After full consideration of the evidence and authorities submitted by each party, the court finds that Plaintiff has met its initial burden in demonstrating the existence of a contract and an account stated between itself and Defendant for legal services with an outstanding balance due in the amount of $20,431.38. (See Plaintiff’s Separate Statement of Undisputed Material Facts Nos. 1-7, 11.) In opposition, Defendant has not demonstrated by admissible evidence the existence of a triable issue of material fact. Consequently, Plaintiff’s motion for summary judgment is GRANTED. Plaintiff is entitled to judgment on its Complaint.