Failure to File a Proper Separate Statement
In Kulesa v. Castleberry (1996) 47 Cal. App. 4th 103, 106 [54 Cal. Rptr. 2d 669], the court stated that a trial court must consider all of the papers submitted before exercising its discretion to grant a summary judgment based on the failure to file an adequate separate statement.
The Kulesa court further concluded that, when "the most cursory review of all the papers shows the motion to be utterly without factual or legal merit, the court has no discretion to grant the summary judgment." (Id. at p. 113.)
Hence, unless the moving party has met its initial burden of proof, the court does not have discretion under subdivision (b) of section 437c to grant summary judgment based on the opposing party's failure to file a proper separate statement.
Based on the foregoing analysis local rule 592 is invalid as applied to summary judgment motions since it authorizes the court to grant summary judgment based solely on the absence of opposition, without a preliminary finding that the moving party has met its initial burden of proof.
Such result conflicts with statutory law and case law construing section 437c, and hence renders local rule 592 void as applied to summary judgment motions.