(Please note: the names and locations of all parties have been changed to protect the confidentiality of this wrongful death case and its proceedings.)
A. Moving Defendant’s Burden of Proof
A 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.] This means the moving defendant must persuade the court that if the defendant’s evidence is uncontroverted, no reasonable trier of fact could find for the plaintiff. [Id. at 851.] Only if the defendant makes that showing does the burden shift to plaintiff to demonstrate the existence of a triable issue of material fact. [Id.]
A defendant has not met its burden unless it has shown that the plaintiff cannot establish at least one element of the cause of action by showing that the plaintiff does not possess, and cannot reasonably obtain, needed evidence. [Id. at 854 (emphasis in original).] A moving defendant must make an affirmative showing that the plaintiff lacks the needed evidence; simply pointing to a claimed absence is not enough. [Id. at 854-855.] In ruling on the motion, the court must consider and view, in the light most favorable to the opposing party, all of the evidence and inferences reasonably drawn therefrom. [Id. at 844.] Declarations of the moving party are strictly construed, while declarations of the party opposing the motion are liberally construed. [Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832.]
Nor is it enough to merely assert that plaintiff failed to provide detailed information. The defendant must prove that plaintiffs failed to provide meaningful responses to comprehensive interrogatories designed to elicit all the evidence plaintiffs had to support their contention of liability. [Weber v. John Crane, Inc. (2006) 143 Cal.App.4th 1433, 1442; see also Scheiding v. Dinwiddie Construction Co. (1999) 69 Cal.App.4th 64 (burden did not shift where the interrogatories contained no questions aimed specifically at the presence or absence of the defendant at jobsites).] Also, the moving party must demonstrate … that there is no evidence to support an element of the opponent’s case … If a party contends some particular issue of fact has no support in the record, it must set forth all the material evidence on the point and not merely the evidence favorable to it. [Rio Linda Unified School Dist. v. Super. Ct. (1997) 52 Cal.App.4th 732, 740-741.]
(The discovery issues presented here are common to most personal injury cases.)
Only admissible evidence may be considered, and the moving defendant must include all evidence offered to meet its evidentiary burden in its Separate Statement. [Code Civ. Proc. § 437c(d).] This is the Golden Rule of Summary Judgment: If it is not set forth in the separate statement, it does not exist. [United Community Church v. Garcin (1991) 231 Cal.App.3d 327, 337.] Also, defendant’s moving papers in support of its summary-judgment motion must include a separate statement setting forth plainly and concisely all material facts which the moving party contends are undisputed. In addition, each material fact set forth in the separate statement shall be followed by a reference to the supporting evidence. [Haney v. Aramark Uniform Services, Inc. (2004) 121 Cal.App.4th 623.] Counsel’s arguments are not evidence. Supporting and opposition papers in a motion for summary judgment, must be supported by admissible evidence and is followed by an appropriate reference to the evidence accompanying the motion or opposition. However, absent such support in the evidence submitted, the court must disregard facts’ contained in an unverified statement. [Smith, et al. v. Super. Ct. (1997) 60 Cal.App.4th 573.] (See Part 9 of 14.)
For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.