(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this birth injury/medical malpractice case and its proceedings.)
To meet this burden of proof, the defendant must show that either one or more elements of the cause of action cannot be established or there is a complete defense to that cause of action (Code Civ. Proc., § 437c(o)(2).) This means that where plaintiff has the burden of proof at trial by a preponderance of evidence, the defendant must present evidence that would require a reasonable trier of fact not to find the underlying material fact more likely than not. Otherwise, he [defendant] would not be entitled to judgment as a matter of law. But would have to present his evidence to a trier of fact [the jury]. (Brackets added.) (Aguilar, supra, 25 Cal.4th at p.851.)
The import of the more likely than not in the foregoing quote is that a moving defendant must generally present evidence that, if uncontradicted, would constitute a preponderance of evidence that an essential element of the plaintiff’s case cannot be established…. The same is true when a moving defendant seeks to secure dismissal of the complaint based on an affirmative defense. (Emphasis added.) (Kids’ Universe v. In2labs (2002) 95 Cal.App.870, 879.) Consequently, if the Defendants’ expert declaration is disputed by a declaration by plaintiff’s expert, then the matter is contradicted and the summary judgment must be denied.
Consequently, if the defendants fail to meet the above burden or persuasion, their motion must be denied:
Therefore, at the summary judgment stage, the defendants in the present case had an initial burden of production to make a prima facie showing that their conduct came within the exposure exemption. [Citations omitted.] If they failed to meet that burden, the plaintiff need not make any showing at all. (Pepperell v. Scottsdale Ins. Co. (1998) 62 Cal.App.4th 1045, 1054…].) Defendants contend that Dr. Amendola’s declaration, together with Consumer Cause’s discovery responses, shifted the burden of production to Consumer Cause. We disagree. (Consumer Cause, Inc. v. SmileCare (2001) 91 Cal.App.4th 454, 469 – 470.
Here the defense expert’s declaration is now disputed; the defense’s declaration simply shows that there are triable issues of fact. Here there are two declarations – one by the moving defendant and one by Plaintiffs – both addressing the medical standard of care and causation of injuries. Since Plaintiffs have now disputed the issues of standard of care and causation in the declaration of Plaintiffs’ expert, these two issues remain in dispute and remain as triable issues of fact for the jury.
Plaintiffs now respectfully request this court deny defendants’ motion for summary judgment.
For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.