Tip No. 20 Sometimes even if it quacks like a duck and looks like a duck…it’s still not duck

Your editor is fairly confident you have encountered a motion that is titled one thing, but asks the court to decide an entirely different issue. The notice of a motion for summary judgment requested a determination that the cross-defendant owed a contractual duty to defend the cross-complainant (an issue of law). The substance of the motion requested the court find that the subcontractor had breached that duty (a factual determination).

Or where the notice advised the motion would [properly] preclude an expert witness from relying on the opinion of another expert who was not disclosed and would not be testifying…but where the motion sought to exclude the testimony of the properly disclosed expert which would have been based on photographs and measurements taken by the expert’s colleague at the scene and at the direction of the expert who would be testifying.

The moving party very likely floated the decoy duck in the hope that defense counsel would read the notice and, assuming that the motion was what it purported to be, i.e. a “slam dunk”, would decide to not oppose it… or perhaps neglect to read the cited (and mis-quoted) authority.