Summary Judgment Clarified
The determination of who has the burden of proof is crucial
to a motion for summary judgment
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Berwanger |
By CHARLES V. BERWANGER
Must a defendant conclusively negate the plaintiff's case to succeed on a motion
for summary judgment? Or may a defendant, after the plaintiff has an opportunity
to complete discovery, successfully move for summary judgment on the basis that
the plaintiff does not have, and will not have at the time of trial, sufficient
evidence to survive a motion for nonsuit?
Finally, what is the relationship between California Code of Civil Procedure
§437c and Federal Rule of Civil Procedure 56?
On June 14, 2001, the California Supreme Court, in a tour de force exposition
on the meaning of §437c, answered those questions as well as many others
by "clarifying" §437c.
That decision, written by the late Justice Stanley Mosk, was Aguilar v.
Atlantic Richfield Co., 25 Cal.4th 826 (2001), modified 26 Cal.4th 80a
(2001). The Aguilar court built upon its decision in Saelzler v. Advance
Group 400, 25 Cal.4th 763 (2001), concluding that for almost all purposes
§437c has the same meaning and operates in the same manner as FRCP 56.
This article discusses the clarified meaning of §437c according to the
California Supreme Court.
§437c and Aguilar
Section 437c, both before and after substantial amendments to it in 1992 and
1993, provided that "any party may move for summary judgment in any action
or proceeding if it is contended that the action has no merit or that there
is no defense to the action or proceeding." It continues that "the
motion for summary judgment shall be granted if all the papers submitted show
that there is no triable issue as to any material fact, and that the moving
party is entitled to a judgment as a matter of law."
The purpose of §437c, as is true with FRCP 56, "is to provide courts
with a mechanism to cut through the parties' pleadings in order to determine
whether, despite their allegations, trial is in fact necessary to resolve their
dispute." Aguilar at 843.
To that end, the California legislature in 1992 and 1993 amended §437c.
The purpose of the amendments was to move §437c closer to FRCP 56 as Rule
56 was interpreted and applied by the 1986 trilogy of United States Supreme
Court decisions making summary judgment an effective procedure to avoid needless
trials in Celotex Corp. v. Catrett, 477 U.S. 317 (1986), Anderson
v. Liberty Lobby, Inc., 477 U.S. 242 (1986), and Matsushita Elec. Industrial
Co. v. Zenith Radio, 475 U.S. 574 (1986).
The 1992 amendments to §437c provided for a mix of burdens of persuasion
and production that shift under §437c(o).
Thus, under §437c(o)(1) "plaintiff . . . has met" his "burden
of showing that there is no defense to a cause of action if" he "has
proved each element of the cause of action entitling" him "to judgment
on that cause of action. Once the plaintiff . . . has met that burden, the burden
shifts to the defendant . . . to show that a triable issue of one or more material
facts exists as to that cause of action or defense thereto.
"The defendant . . . may not rely upon the mere allegations or denials"
of his pleadings, but must set forth specific facts. Section 437c(o)(2) declares
that "defendant . . . has met" his "burden of showing that a
cause of action has no merit if" he "has shown that one or more elements
of the cause of action . . . cannot be established, or that there is a complete
defense to that cause of action.
"Once the defendant . . . has met that burden, the burden shifts to the
plaintiff . . . to show that a triable issue of one or more material facts exists
as to that cause of action or defense thereto."
Here, too, a plaintiff may not rely upon allegations or denials of pleadings,
but must set forth specific facts showing a triable issue of material fact.
Justice Mosk, on the twin pillars of the 1992 and 1993 amendments, concluded
the California legislature intended to move §437c closer to FRCP 56. Aguilar
"clarifies" §437c to accomplish that movement.
Threading its way through Aguilar is the concept that a plaintiff
who makes a pretrial showing of entitlement to a directed verdict should not
have to go through a trial and is entitled to summary judgment; and that a defendant
who makes a pretrial showing that the plaintiff cannot survive a motion for
a nonsuit at trial is likewise entitled to summary judgment.
Burden of persuasion
Aguilar describes how clarified §437c works. The burden on the moving
party is the "burden of persuasion" to show there is no triable issue
of material fact. Further, "there is a triable issue of material fact if,
and only if, the evidence would allow a reasonable trier of fact to find the
underlying fact in favor of the party opposing the motion in accordance with
the applicable standard of proof."
The amendments, explained Justice Mosk, direct that "the placement and
quantum of the burden of proof at trial are crucial for purposes of summary
judgment . . . ."
Necessarily, the plaintiff bears the burden of persuasion on each element of
his cause of action and that there is no defense thereto. So, too, a defendant
bears the burden of persuasion that "one or more elements of" the
"cause of action" in question "cannot be established" or
that "there is a complete defense" thereto.
Aguilar instructs that a party moving for summary judgment bears "an
initial burden of production to make a prima facie showing that no triable issue
of material fact exists." If that burden is met, the burden shifts to the
opposing party to produce sufficient evidence to make a prima facie showing
of a triable issue of material fact.
The burden of persuasion held by the moving party does not shift; only the
burden of production shifts.
Burden of proof
Aguilar emphasizes that the determination of who has the burden of
proof and the quantum of the burden of proof at trial are crucial to determining
a motion for summary judgment. Thus, a plaintiff who has "the burden of
proof by preponderance of evidence at trial" and "moves for summary
judgment" must present evidence that would "require a reasonable trier
of fact to find any material fact more likely than not . . . ."
On the other hand, "if a defendant moves for summary judgment against
such a plaintiff, he must present evidence that would require a reasonable trier
of fact not to find any material fact more likely than not otherwise,
he would not be entitled to judgment as a matter of law, but would have to present
his evidence to a trier of fact."
With that framework, Aguilar analyzed the showing made by the defendants, movants
for summary judgment, and the plaintiffs. The complaint alleged defendant petroleum
companies' unlawful conspiracy to restrict the output of California Air Resources
Board gasoline and to raise its price.
Aguilar recounts the extensive discovery and the numerous declarations
submitted by the moving defendants that there was no factual basis for the asserted
conspiracy.
Plaintiffs responded that there was substantial circumstantial evidence that
the defendants used the same experts, that there was commonality of pricing
of products, and that there were exchange agreements by which two companies
may trade, with or without a price differential, products of the same type in
different geographical areas and/or at different times, or products of different
types.
The plaintiffs asserted that an inference could be drawn that the defendants
had colluded and that the matter should go to jury trial. Agui-lar, in determining
that summary judgment should have been granted to the defendants, rejected the
plaintiffs' arguments and inferences, and explained the proper analytical analysis
under §437c.
In Aguilar, the defendants presented a prima facie case that no reasonable
trier of fact could find that it was more likely than not there was conspiracy.
The plaintiffs, who would bear the burden of proof at trial, bore the burden
to produce evidence that would allow a reasonable trier of fact to find in their
favor that is, sufficient evidence to warrant a finding by the trier
of fact by a preponderance of the evidence that an unlawful conspiracy was more
likely than not.
The plaintiffs argued that a trier of fact could infer that there was an unlawful
conspiracy.
Aguilar responded that "ambiguous evidence or inferences showing
or implying conduct that is as consistent with permissible competition by independent
actors as with unlawful conspiracy by colluding does not allow such a trier
of fact . . ." to find conspiracy.
The foregoing is discussed in the context of antitrust law, where there is
a public policy that a conspiracy may not be inferred from circumstantial evidence
from which an inference of a proper business purpose may also be drawn.
Aguilar and Saelzer give broader scope to inferences
in equi-poise and the impropriety of inferring the conclusion sought by the
party with the burden of proof. After all, a trier of fact may not do so and,
therefore, on a motion for summary judgment the court may not do so.
Also germane to the Aguilar court's clarification of §437c is
Aguilar's rejection of decisions that required a defendant moving for
summary judgment to "conclusively negate an element of plaintiff's cause
of action."
In other words, it is not the defendant's burden to affirmatively and conclusively
"prove not x' . . ." (assuming that x' is one of the elements
of the plaintiff's cause of action), but rather defendant need only show that
the "plaintiff does not possess, and cannot reasonably obtain, needed evidence."
Finally, Aguilar explains that although FRCP 56 and §437c are
similar, §437c "continues to require a defendant moving for summary
judgment to present evidence, and not simply point out that plaintiff does not
possess, and cannot reasonably obtain, needed evidence."
In this particular, at least §437c still diverges from FRCP 56. (Justice
Mosk emphasizes that Aguilar was not limited to antitrust cases.)
§437c and Saelzler
Saelzler, too, deals with the operation of §437c but without
the detailed analysis provided by Aguilar. Saelzler, however, presages
Aguilar by clearly stating that the prior requirement that defendant
"conclusively negate" a necessary element of plaintiff's case is not
the law.
Further Saelzler affirms that §437c allows a defendant to "obtain
summary judgment solely by showing, after opportunity for discovery, that the
opposing plaintiff had failed to present triable evidence crucial to his case."
(The amendment of §437c effective Jan. 1, 2003, requiring 75 days notice
of a Motion for Summary Judgment probably generally moots an argument that the
responding party needs more time to perform discovery to respond to the motion.
Such an argument was readily available before the amendment when the minimum
notice required was 28 days.)
Saelzler involved a motion by a defendant owner of an apartment complex
where the plaintiff was brutally assaulted. The plaintiff alleged that the defendant
had failed to provide adequate security and that the breach of that duty proximately
caused her injuries.
The defendant moved for summary judgment on the ground that the plaintiff could
not present evidence at trial that would enable the trier of fact to determine
it was more probable than not that but for the failure of the defendant to satisfy
its duty that is, to provide adequate security the plaintiff would
not have been injured.
There was evidence that even with proper repair and maintenance of security
gates and with security guards, the plaintiff still may have been assaulted.
Gang members lived in the apartment complex, gangs had free run of the property
and the defendant's security efforts had not effectively controlled the gangs.
Saelzler concluded that the failure to provide security led to inferences
which were in equipoise. It would have been speculation and conjecture for a
jury to infer that had adequate security been provided, the plaintiff would
not have been injured. Be-cause at trial the plaintiff could not have met her
burden of proof, summary judgment was appropriate.
Conclusion
Aguilar's and Saetzler's clarifications of §437c substantially
tracks FRCP 56 to bring litigation to an end when the respondent cannot meet
his burden of proof at trial.
Section 437c, as clarified, protects the rights of the parties to discovery
and allows them an opportunity to develop and argue all relevant facts. Summary
judgment should be available pretrial to avoid needless trials and the expense
of preparing for and going to trial.
Charles V. Berwanger, vice chair of the State Bar's Litigation
Section, is a partner at Gordon & Rees LLP in San Diego.
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- Does CCP §437c have substantially the same meaning as FRCP 56?
- May a party responding to a motion for summary judgment rely upon its pleadings
to successfully oppose such a motion?
- Must a plaintiff moving for summary judgment conclusively show entitlement
to judgment?
- Must summary judgment be granted to a moving defendant if it shows plaintiff
cannot survive a motion for nonsuit at trial?
- Is the burden of production the same as the burden of proof?
- Is the burden of proof critical to a motion for summary judgment?
- On a motion for summary judgment, if the evidence is in equipoise and the
respondent has the burden of proof, must the motion be granted?
- If the moving party has the burden of proof, must the motion be granted
if the evidence requires a reasonable trier of fact to find any material fact
more likely than not?
- Does the burden of production on a motion for summary judgment shift if
the moving party makes a prima facie showing of entitlement to judgment?
- If upon a motion for summary judgment the moving party has the burden of
proof and the court concludes the evidence is in equipoise, should the court
deny the motion?
- Must a defendant moving for summary judgment conclusively disprove every
element of plaintiff's cause of action?
- May a moving party solely rely on argument that the responding party cannot
establish a prima facie case on defense?
- Is the minimum notice requirement for a summary judgment motion 75 days?
- Strategically, should the moving party show that responding party has had
a chance to perform discovery and has not discovered and does not have the
potential for discovering sufficient evidence to defeat a motion for summary
judgment?
- Is plaintiff-movant for summary judgment entitled to judgment if it makes
a showing that it would be entitled to a directed verdict?
- Are public policy considerations precluding inferences (such as parallel
pricing of consumer products in an antitrust case) relevant to the trial court's
determination of a motion?
- Must the quantum of burden of proof (e.g. clear and convincing) be applied
by the court in determining the merits of a motion?
- Is summary judgment intended to avoid unnecessary trials?
- Is needed discovery relevant in opposing a motion for summary judgment?
- Should the motion be denied if inferences from direct evidence are in equipoise
and if the moving party bears the burden of proof?
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