(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this birth injury case and its proceedings.)
Nothing in the moving papers addresses the question of whether Universal complied with its duty to assure the competence of physicians – including Dr. X. – practicing in its facilities. The bare assertion that plaintiffs cannot prove their anticipated claim is an improper attempt to shift initial burden to the responding party. To support summary judgment on a theory that plaintiff has no evidence to prove an element of his case (Rio Linda School District v. Superior Court (1997) 52 Cal.App.4th 732, 735, 60 Cal.Rptr.2d 710, Union Bank v. Superior Court (1995) 31 Cal.App.4th 573, 590, 37 Cal.Rptr.2d 653), it is not enough to simply suggest that plaintiff cannot prove its case. Certain Underwriters at Lloyd’s of London v. Superior Court (1997) 56 Cal.App.4th 952, 955-957, 960, 65 Cal.Rptr.2d 82.
Allowing the moving party to allege that the opposing party has no evidence would effectively place an initial burden upon the opposing party that would directly contradict the procedure for burden shifting expressly set forth in the amended statute. Scheiding v. Dinwiddie Construction Co. (1999) 69 Cal.App.4th 64, 81, 81 Cal.Rptr.2d 360. The moving party is required to make an affirmative showing of the absence of evidence to establish a prima facie case. (Id. at 83) To do so, the moving defendant should be required to produce direct or circumstantial evidence that the plaintiff not only does not have but cannot reasonably expect to obtain a prima facie case. Hagen v. Hickenbottom (1995) 41 Cal.App.4th 168, 186, 48 Cal.Rptr.2d 197. The burden does not shift until a review of all direct, circumstantial and inferential evidence available to the moving defendant establishes the absence of evidence to support the plaintiffs cause of action. Scheiding, supra, 69 Cal.App.4th at 83.
Since Elam liability has not been refuted and the Court can only adjudicate an entire cause of action (i.e. primary right) and not individual facts or theories of liability (Lilienthal & Fowler v. Superior Court (1993) 12 Cal.App.4th 1848, 1853-1854, 16 Cal.Rptr.2d 458), the motion must be denied irrespective of whether there is evidence for or against Universal’s liability for the direct neglect of its nursing and other staff. Lopez v. Superior Court, supra, 45 Cal.App.4th 705, 715-716; Huynh v. Ingersoll-Rand, supra, 16 Cal.App.4th 825, 830. (See Part 9 of 12.)
For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.