(Please note: the names and locations of all parties have been changed to protect the confidentiality of the proceedings.)
II. LEGAL STANDARD
A party who seeks a court’s action in its favor bears the burden of persuasion thereon. (Evid. Code § 500). Thus, “from commencement to conclusion, the party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that it is entitled to judgment as a matter of law. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal. 4th 826, 850 (emphasis added).) Therefore, defendants moving for summary judgment bear 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, supra, at 850.)
If there is even one triable issue of material fact the motion must fail. (Aguilar v. Atlantic Richfield (2001) 25 Cal.4th 826, 854-855) Additionally, the moving party’s evidence must be strictly construed “in order to avoid unjustly depriving the plaintiff of a trial.” (Brantley v. Pisaro (1996) 42 Cal.App.4th 1591, 1601.) [See The Rutter Group, Civil Procedure Before Trial, Chapt. 10-E, §§ 223 et seq.]
As the moving party, ABC has two opportunities to submit pleadings to the Court. Plaintiff John Gibbs has only one such opportunity. Why? This is because ABC has the burden of persuasion and, in addition, the following rules apply:
1. The Court’s role is “issue-finding” and not “issue-deciding.” If the Court finds a single disputed issue of material fact, the motion must be denied. [CCP §437(c); Zavala v. Arce (1997) 58 CA4th 915, 926] (See Part 3 of 14.)
For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.