A Conceptual Approach to California Summary Judgment
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The statute states the burden of the opposing party in identical language as between motions for summary judgment brought by the plaintiff or the defendant. Once the moving party has met its burden as set forth in the preceding section, “the burden shifts to the defendant [plaintiff] or cross-defendant [cross-complainant] to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto.”
It is important to keep in mind that the “burden” that “shifts” is not the production burden or the burden of proof, as those terms are properly understood. While under certain circumstances the production burden and the burden of proof actually shift to the other party, this is not what happens in summary judgment. In summary judgment, once the moving party has met its burden, it becomes the opponent’s burden to show that a triable issue of one or more material facts exists. The burdens of the moving and opposing parties are different and those burdens, as they are defined in the statute, remain where they are originally placed.
It is true that subdivision (p)(1) of section 437c states that once the moving plaintiff has met its burden, “the burden shifts to the defendant or cross-defendant to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto.” But it is not the plaintiff’s burden that shifts to the defendant. The plaintiff’s burden was to identify material facts and to support those facts with evidence that will support the judgment. This does not become the defendant’s burden. In short, it is the burden of going forward that has shifted. The identical is true of subdivision (p)(2) of section 437c which speaks of the shifting of the burden to the plaintiff where the defendant has moved for summary judgment.
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About the Book
Summary judgment is a sophisticated and important procedural device; in A Conceptual Approach to California Summary Judgment, author Thomas Kallay provides a detailed analysis and explanation of how this procedure is used in California.
Kallay identifies its fundamental components and concepts and shows how these interact with each other. This study also explores the relationship of California summary judgment to other procedural devices. It discusses:
• direct, circumstantial, and admissible evidence;• the presentation of evidence;
• material and ultimate facts;
• the burden of the moving party and opposing party;
• evaluation of opponent’s evidence;
• evenly balanced influences;
• summary adjudication;
• summary judgment, directed verdict, and the constitution;
• the burdens of production and persuasion;
• the appeal.
Geared toward law students and lawyers, A Conceptual Approach to California Summary Judgment provides a comprehensive overview of this significant component of California law.
The cornerstone of summary judgment is evidence. First, both the party moving for summary judgment and the opponent of the motion must rely on evidence. Second, the court must determine the motion based on the evidence presented.
The courts have held from time to time that the parties to a motion for summary judgment must rely on “evidentiary facts.” This is another way of saying that the parties and the court must rely on admissible evidence. …
With one exception, evidence for the purposes of summary judgment is no different from evidence presented at trial.
About the Author
Thomas Kallay has been a member of the California Bar since 1963. He has practiced law as a civil litigator and has worked for the California Court of Appeal in Los Angeles as a judicial attorney. Kallay has published several articles dealing with California civil procedure.