Personal Injury Lawyer Blog
(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.)
UNIVERSAL FAILS TO CARRY ITS INITIAL BURDEN ON SUMMARY JUDGMENT
On motion for summary judgment, defendant has the burden of producing evidence negating a necessary element of the plaintiff’s case or establishing an affirmative defense. To succeed, a defendant moving for summary judgment must conclusively negate a necessary element of the plaintiffs case, and demonstrate that under no hypothesis is there a material issue of fact that requires the process of a trial. Donald v. Sacramento Valley Bank (1989) 209 Cal.App.3d 1183, 1190, 260 Cal.Rptr. 49; Evan F. v. Hughson United Methodist Church (1992) 8 Cal.App.4th 828, 10 Cal.Rptr.2d 748. Defendant must establish that there is no triable issue of fact with respect to any basis for liability under the complaint. United Community Church v. Garcin (1991) 231 Cal.App.3d 327, 338, 282 Cal.Rptr. 368. The defendant has the burden of establishing that there was no room for a reasonable difference of opinion … Rosh v. Cave Imaging Systems. Inc. (1994) 26 Cal.App.4th 1225, 1235, 32 Cal.Rptr.2d 136.
Where the Complaint alleges matters upon which a breach of duty may be based, failure of the moving party to address each factual theory supportable under the Complaint precludes summary judgment. Lopez v. Superior Court (1996) 45 Cal.App.4th 705, 715-716, 52 Cal.Rptr.2d 821; Villa v. McFerren (1995) 35 Cal.App.4th 733, 741-746, 41 Cal.Rptr.2d 719. Where matters on which liability may be based are not conclusively disposed of by the moving papers, the motion must be denied even without opposition. Huynh v. Ingersoll-Rand (1993) 16 Cal.App.4th 825, 830, 20 Cal.Rptr.2d 296.
As D’Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 112 Cal.Rptr. 786, notes, summary judgment is proper only if the affidavits in support of the moving party would be sufficient to sustain a judgment in his favor. But a merely conclusory statement by an expert that the standard of care has been met, without facts supporting such a conclusion is insufficient. (See Part 7 of 12.)
For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.