Summary judgment is not the time to discover that you never pled one of your main theories of the case. A published opinion from the Court of Appeal illustrates that point sharply — plaintiff’s own counsel admitted at the summary judgment hearing that one of her expert’s theories “is not” in the complaint. The Court of Appeal affirmed summary judgment for the defendant. The opinion is Pagan v. City of San Rafael, No. A171344, 2026 WL 926641, — Cal. Rptr. 3d —- (Mar. 12, 2026).
The facts in brief
In January 2018, sixteen-year-old Kaylin Pagan was riding in a car driven by her friend on a wet road in San Rafael. The driver hydroplaned on a curve, overcorrected, lost control, and the car went off the road and down a hillside. Pagan sued the City for dangerous condition of public property.
The operative complaint alleged three defects: no warning signs for the curve, no warnings to slow for wet conditions, and no guardrail. Those were the boundaries of the case.
Two and a half years later, when the City moved for summary judgment, Pagan’s opposition told a different story. Her expert opined that the real cause of the accident was severely degraded pavement — alligator cracking, delamination, potholes, and depressions — that caused the car to hydroplane. None of that appeared in the complaint.
The trial court granted summary judgment, and the Court of Appeal affirmed.
The rule and why it mattered here
Opposition evidence must be directed at issues raised by the pleadings, so the pleadings set the outer boundaries of what is material at summary judgment. A plaintiff cannot defeat summary judgment by expanding those boundaries to include theories not pled in the complaint.
The practical consequence is that an unpled theory — no matter how well-supported by expert opinion — cannot create a triable issue of material fact at summary judgment. In Pagan, the degraded pavement theory was the heart of the plaintiff’s opposition. Without it, what remained were the three pleaded theories, which the trial court held failed due to the open and obvious nature of the wet and curved roadway. (The lack of a guardrail failed because it didn’t cause the accident.)
What goes wrong and when
The disconnect between the plaintiff’s theory of the case and the allegations of the complaint typically develops over the arc of litigation. Counsel often file complaints early based on information from their client and a basic investigation. At this point, a full investigation or engagement of an expert are not in the budget. Once litigation begins, it takes on a life of its own. Substantial discovery occurs, the defendant moves for summary judgment, and the plaintiff’s counsel retains an expert who inspects the site, reviews documents, and develops opinions that may differ from what counsel originally alleged.
That evolution is normal. The mistake is failing to bring the complaint along for the ride.
As you are building your summary judgment opposition, compare your working theories to your operative complaint with one question in mind: does every theory have a corresponding allegation? If the answer is no, you have a choice: either seek leave to amend your complaint before your opposition window closes or jettison the unpled theory.
In Pagan, counsel apparently recognized the unpled theory problem at the hearing — hence the concession — but by then it was too late. The time to address a mismatch between your case theories and complaint is before you file your summary judgment opposition.
We can help
If you are working toward summary judgment opposition and want to assess whether your complaint covers your expert’s theories, we are glad to help. Contact us to discuss whether we’d be a good fit.
