Personal Injury Lawyer Blog
The following blog entry is written from a defendant’s position as trial approaches. Reviewing this kind of briefing should help potential plaintiffs and clients better understand how parties present such issues to the court.
(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this medical malpractice/personal injury case and its proceedings.)
SUMMARY JUDGMENT IS APPROPRIATE WHEN THERE IS NO TRIABLE ISSUE AS TO ANY MATERIAL FACT
California Code of Civil Procedure Section 437(c)(f) provides authority for the grant of summary judgment if a party contends the cause of action (for medical malpractice) has no merit.
The entry of summary judgment is mandatory where the documents disclose no triable issue of material fact. Kraslev v. Superior Court (1980) 101 Cal.App.3d 425, 432. A defendant is entitled to summary judgment where the record establishes, as a matter of law that a cause of action asserted against him cannot prevail. County of Los Angeles v. Security Insurance Comparny of Hartford (1975) 52 Cal.App.3d 808, 816.
A defendant has met his or her burden of showing that a cause of action has no merit if that party has shown that one or more elements of the cause of action cannot be established. (Code Civ. Proc. §437c(o)(2)) Once the defendant has met that burden, the burden shifts to the plaintiff to show that a triable issue of one or more material facts exist is to that cause of action. Munro v. Regents of University of California (1989) 215 Cal.App.3d 977. In Fraser Dame, etc. v. Bacarro Blum, etc. (1977) 70 Cal.App.3d 331, 338, the court stated:
A summary judgment is proper if the action has no merit and there is nc triable issue of fact. [Citations.] If the… motion for summary judgment establishes a complete defense to plaintiffs action, or demonstrates an absence of any essential element of plaintiffs case and the plaintiffs declaration in reply does not show that a triable issue of fact with respect to the defense or an essential element exists, no amount of factual conflicts upon other aspects of the case will effect a result and a motion for summary judgment shall be granted.
In this case, plaintiff simply cannot proffer the evidence needed to establish the essential elements of his cause of action for medical negligence/failure to provide informed consent against Dr. Lee. Therefore summary judgment, or in the alternative, summary adjudication, is appropriate. (See Part 6 of 8.)
For more information you are welcome to contact personal injury lawyer, Moseley Collins.