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 medical malpractice/personal injury case and its proceedings.)
POINT AND AUTHORITIES
Defendant Has the Burden of Persuasion That There Is No Triable Issue of Material Fact, and That He Is Entitled to Judgment As a Matter of Law.
A defendant moving for summary judgment has the burden of presenting facts to negate an essential element of each cause of action or to show there is a complete defense to each cause of action. [Code Civ. Proc., § 437c, subd. (p)(2).]
In Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, the California Supreme Court clarified the parties’ burdens on a summary judgment motion as follows:
[F]rom commencement to conclusion, the party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law…. There is a triable issue of material fact if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof…. A defendant bears the burden of persuasion that “one or more elements of the cause of action” in question “cannot be established,” or that “there is a complete defense” thereto.
(Aguilar v. Atlantic Richfield Co., supra, 25 Cal. 4th at p. 850, fns. omitted; Code of Civil Procedure § 437c, subd.(o)(2).)
The party moving for summary judgment bears an initial burden of pr oduction to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries his burden of production, he causes a shift, and the op posing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact … A burden of production entails only the presentation of evidence.”
(Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at pp. 850-851.)
Only if defendant is successful in meeting this burden does the burden shift to plaintiff to demonstrate the existence of a triable issue of material fact. (Code of Civil Procedure § 437c, subd. (o)(1-2); and Johnson v. Superior Court (2006) 143 Cal.App.4th 297, 304 citing Ferrari v. Grand Canyon Dories (1995) 32 Cal.App.4th 248,252.) Unless the moving party meets its burden, summary judgment cannot be ordered, even if the opposing party does not respond sufficiently or at all. (Quintilliani v. Mannerino (1998) 62 Cal.App.4th 54, 59-60.) As set forth below, Dr. Lee has failed to meet his burden of proof therefore, the motion must be denied. (See Part 6 of 11.)
For more information you are welcome to contact personal injury lawyer, Moseley Collins.