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Table of Contents    Cover    MCLE Test

MCLE Article and Self-Assessment Test

Put Up or Shut Up

An understanding of the shifting burdens of production is central to arguing summary judgment motions 

By Thomas R. Freeman 

Thomas R. Freeman is a partner with Bird, Marella, Boxer & Wolpert, P.C., where his practice consists of civil litigation at both the trial and appellate levels. 

Summary judgment law has evolved dramatically during the past 13 years in both federal and California courts. Once a disfavored remedy that was seldom granted-and then often reversed on appeal-summary judgment is now recognized as an important tool for preserving the resources of litigants as well as the judicial system. For practitioners, mastering the shifting burdens of production is key to understanding the summary judgment revolution. Although these burdens are often misunderstood, they flow logically from the first principles of modern summary judgment law. 

These principles are the same in federal and California courts. In both jurisdictions, summary judgment is properly granted when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law.1 While that standard has remained constant, summary judgment law changed radically with the easing of the moving party's burden of production when the nonmoving party bears the burden of persuasion at trial. 

This interpretation of the moving party's burden of production under Rule 56 of the Federal Rules of Civil Procedure occurred in 1986, when the U.S. Supreme Court decided a trio of summary judgment cases: Celotex Corporation v. Catrett, Anderson v. Liberty Lobby, Inc., and Matsushita Electronic Industries Company v. Zenith Radio Corporation.2 Several years later, in response to legislative amendments to Code of Civil Procedure Section 437c, California's summary judgment statute, California appellate courts ushered in a similarly striking new era in summary judgment law. Today, the moving party's burden of production on summary judgment is the same in both jurisdictions-though some confusion remains. 

The fact that the movant's burden is now easier to meet brings the nonmovant's burden into sharper focus. In keeping with the shift away from the longstanding judicial bias against summary judgment, courts today emphasize that when the movant meets its initial burden, the nonmoving party must do more than produce evidence that might vaguely support its claim. Indeed, the nonmovant must produce evidence sufficient to support a trial verdict in its favor-evidence that would be strong enough to withstand a review on appeal based on a substantial-evidence standard. (See "In Terms of the Burdens," on this page.) 

Similar History 
Federal and California summary judgment law share a comparable history. Before 1986, the prevailing view in federal court was that summary judgment was an "extreme and treacherous remedy" that requires judges to engage in "much soul searching"3 -and must be denied if there is "the slightest doubt as to the facts."4 Until recently, the same type of bias against summary judgment prevailed in California.5 

The primary mechanism for denying summary judgment, when it was disfavored, was a harsh interpretation of the burden of production on the party seeking summary judgment. Even when the moving party did not bear the burden of persuasion at trial, that burden was effectively placed on the movant in the context of a motion for summary judgment. A defendant moving for summary judgment could not simply demonstrate that the plaintiff lacked evidence sufficient to prove its case at trial. Rather, the defendant's burden was to establish all the elements of a defense or affirmatively negate an essential element of the plaintiff's claim.6 Simply stated, defendants were required to prove a negative.7

Because it is difficult (and sometimes impossible) for defendants to do so, plaintiffs lacking evidence sufficient to support their claims could often force a trial on the merits, despite a lack of essential supporting evidence. That result, however, was inconsistent with the purpose of summary judgment, which is to dispose of cases that cannot be won.8 

In Celotex,9 a products liability action involving asbestos exposure, the defendant moved for summary judgment, arguing that the plaintiffs lacked evidence sufficient to prove that they were exposed to the defendant's product. The D.C. Circuit held that a defendant moving for summary judgment cannot rely upon the alleged inadequacy of the nonmoving party's evidence but must affirmatively negate the nonmoving plaintiff's claim.10 The question presented on appeal to the Supreme Court was whether a party that does not bear the burden of persuasion at trial can meet the initial burden of a motion for summary judgment by showing that the opposing party's evidence is insufficient to support its claim at trial. The Court's answer was yes. 

According to Celotex, the movant may meet its burden of production by pointing out the inadequacy of the nonmovant's evidence. This change in summary judgment law resulted in the creation of a different, more lenient burden for movants that do not bear the burden of persuasion at trial. But that raised a new question: exactly what type of showing is required? The Celotex court did not resolve this question definitively, but there now appears to be a rough consensus among lower federal courts as to the answer. 

In California, the prevailing judicial interpretation of the movant's burden had been identical to the restrictive reading of many federal courts before Celotex: a defendant moving for summary judgment must affirmatively negate an essential element of the plaintiff's case, even though the burden of persuasion at trial lies with the plaintiff.11 This was the rule of Barnes v. Blue Haven Pools-a rule that was not abandoned even after the U.S. Supreme Court decided Celotex.12 Under the Barnes rule, "the placement of the burden of proof at trial does not affect the showing required for a summary judgment."13 

With remarkably little fanfare, however, the California legislature amended Section 437c in 1992 and again in 1993. Ever since, California appellate courts have uniformly held that the combined effect of these amendments was, at a minimum, to overturn Barnes v. Blue Haven Pools-a "dramatic change,"14 according to one court, that moves California practice closer to the federal model.15 But like the federal model, some confusion exists. 

A summary judgment motion triggers three interrelated questions that practitioners must disentangle. The first is procedural: which party bears the initial burden of production on summary judgment? The answer is clear: the party moving for summary judgment always bears that burden.16 The second, and related, question is not only substantive but also more interesting: what must the moving party produce to meet its initial burden? The third question is equally substantive: what must the nonmoving party do to stave off summary judgment if the movant meets its initial burden? 

Materiality and Genuineness 
To answer the substantive questions, it is necessary to determine which party will bear the burden of persuasion if the case is tried. If the moving party is seeking summary judgment on an issue for which it bears the burden of persuasion at trial, then it must submit affirmative evidence establishing each and every element of its claim or defense.17 The revolution triggered by Celotex had no effect on that long-established rule. 

But when the moving party seeks summary judgment on an issue for which it does not bear the burden of persuasion at trial, Celotex and its California analog apply. If the nonmovant bears the burden of persuasion at trial, the motion may be based on the insufficiency of the nonmovant's evidence. To determine what type of showing is sufficient to meet that burden, and what is required of the opposing party to defeat the motion, it is first necessary to understand the standard of review on summary judgment-a standard that defines the elements both the moving and nonmoving parties need for their respective side to prevail. 

The standard of review has long been a matter of black letter law: summary judgment must be granted when the material facts are not genuinely disputed and the moving party is entitled to judgment as a matter of law. The key concepts within that standard are materiality and genuineness. (See "Summary Judgment at a Glance," on this page.) 

Materiality is a function of the issues raised by the pleadings.18 The U.S. Supreme Court aptly characterized a "material fact" in Anderson (an opinion issued on the same day as Celotex) as one that might affect the outcome of the case.19 The question of whether a disputed fact is material therefore presents a question of law to be determined under the substantive law governing the claim.20 

When the moving party disputes the materiality of an alleged factual dispute, it is saying that the factual dispute is insignificant because the moving party is entitled to judgment as a matter of law despite the dispute-the "so what?" defense. Simply put, the claimed factual dispute has no impact on the validity or invalidity of the claim.21 

A dispute over material facts is "genuine" only if the nonmovant can prevail at trial. The U.S. Supreme Court focused on the genuineness requirement in Anderson-a case that, in its own way, is as important to modern summary judgment practice as Celotex. While Celotex eased the moving party's burden of production, Anderson's focus is on the nonmoving party's burden in opposing summary judgment. Before Anderson, some courts held that summary judgment was properly denied if there was "the slightest doubt as to the facts."22 That near-impossible standard, however, is clearly invalid in light of Anderson. 

Liberty Lobby, the plaintiff in Anderson, brought a defamation action against well-known syndicated columnist Jack Anderson. As a matter of First Amendment law, the plaintiff was subject at trial to the rigorous "actual malice" standard. The principal question presented in Anderson was whether the nonmovant's burden of production in the context of summary judgment is increased due to the heightened burden of proof required at trial. The Court held that it was. 

In so ruling, however, the Court reaffirmed that the standard applied to summary judgment is identical to the standard applied to a motion for a directed verdict.23 This linking of the standards on summary judgment and directed verdict applies to all cases, not just defamation cases involving public figures.24 The nonmovant's burden in motions for summary judgment and directed verdict is to produce evidence sufficient to support a reasonable jury verdict in light of the burden of proof required at trial.25 That is why the trial court, in ruling on summary judgment, must look to the standard of proof applied at trial. 

Since Anderson, it is clear that a dispute will not be considered genuine unless a reasonable jury could return a verdict for the nonmoving party based upon the evidence viewed 1) in the light most favorable to the nonmoving party, and 2) through the prism of the standard of proof that will apply at trial. A mere "scintilla of evidence" or evidence that is "merely colorable" or "not significantly probative" is insufficient to raise a genuine issue of material fact because a reasonable jury-applying either a preponderance-of-the-evidence standard or a clear-and-convincing standard-could not find for the nonmoving party based on such paltry evidence.26 

California courts have likewise applied the directed verdict analogy.27 The Section 437c standard for granting summary judgment is the same as the standard for granting nonsuit or directed verdict under California law. A directed verdict or nonsuit should be granted if the evidence, interpreted in the light most favorable to the nonmoving party, is insufficient to support a verdict in the nonmoving party's favor.28 That is also the standard for granting summary judgment.29 Before the 1992 and 1993 amendments, however, there was an important caveat: the rule of Blue Haven Pools was that the movant was required to negate the nonmovant's claim based on the movant's own evidence, even if the burden of persuasion was with the nonmovant at trial.30 Once that restrictive rule was eliminated, it opened the door to finding that the elements of a successful motion for summary judgment in California courts are completely analogous to what is required for a directed verdict-just as in federal court. 

Thus, in Jackson v. Paramount Pictures Corporation,31 the court of appeal applied the Anderson standard on a defendant's motion for summary judgment in a defamation action brought by singer Michael Jackson. The court of appeal held that the trial court, in ruling on summary judgment, properly considered the plaintiff's heightened burden of persuasion at trial. It then quoted and applied the following language from Anderson: 

"There is no genuine issue if the evidence presented in the opposing affidavits is of insufficient caliber or quantity to allow a rational trier of fact to find actual malice by clear and convincing evidence. Thus, in ruling on a motion for summary judgment, the judge must view the evidence presented through the prism of the substantive evidentiary burden."32 

As in Anderson, the Jackson court recognized that the nonmovant must submit evidence sufficient to support a trial verdict in its favor (although, in Jackson, the court used the clear-and-convincing standard but, in most cases, the preponderance-of-the-evidence standard is appropriate). 

Also consistent with this use of Anderson in California courts is Hoch v. Allied-Signal, Inc.,33 in which the court of appeal applied Anderson in affirming a nonsuit ruling.34 The Hoch court equated nonsuit and summary judgment motions and held that a nonsuit motion, like a summary judgment motion, may be granted when, after taking into account the nonmoving party's burden of persuasion at trial, the evidence supporting the nonmoving party is insufficient to support a verdict.35 

The court of appeal in Leslie G. v. Perry & Associates,36 a negligence case, likewise applied the same standard, though without reference to Anderson. The court held that the nonmoving plaintiff failed to raise a genuine issue of material fact on causation-an essential element of a negligence claim. The plaintiff's evidence, at best, established that her injury might have been caused by the defendant's misconduct. As a matter of law, however, that mere possibility was insufficient to support a reasonable finding that the defendant's conduct was "more likely than not" the cause of the plaintiff's injury.37 In so holding, the court in Leslie G. applied the same standard of genuineness as applied in Anderson: the plaintiff's evidence must be sufficient to support a trial verdict in its favor based on the standard of proof at trial. 

The Initial Burden of Production 
In federal court and in California state courts, the moving party's initial burden of production is the same. In federal court, there are two ways for the moving party to meet its initial burden of production on summary judgment when the moving party does not bear the burden of persuasion at trial. First, the new innovation is that the moving party may now point to the absence or inadequacy of the nonmovant's evidence. Second, the traditional method requires the moving party affirmatively to negate the nonmovant's claim or defense. The first method clearly is easier because the movant may rely on the inadequacy of the nonmovant's evidence as opposed to producing its own negating evidence.38 

But what exactly is required of the moving party under the new, easier method? That issue was not definitively resolved in Celotex.39 Justices Rehnquist40 and White proposed what might appear to be different burdens on the moving party, with neither view commanding a majority.41 Writing for four members of the court, Justice Rehnquist declared that the moving party meets its initial burden of production by "pointing out to the district court that there is an absence of evidence to support the nonmoving party's case."42 The vagueness of the phrase "pointing out" has led some courts and commentators to conclude that the moving party need only assert that the nonmoving party lacks evidence to support its claim or defense.43 By contrast, Justice White interprets Rule 56 as requiring the moving party to demonstrate-not merely assert-that the nonmovant lacks sufficient evidence. 

Justice Rehnquist's use of the "pointing out" language, however, does not necessarily imply a mere-assertion standard. The movant must demonstrate the invalidity of the nonmovant's claim by pointing to something- discovery responses, the nonmovant's evidence, or both. Thus, "pointing out" is not a mere assertion that the nonmovant lacks evidence. Rather, it is a pointing to something, such as the nonmovant's inadequate evidence or discovery responses. 

That is precisely the position taken by Justice White, who cast the deciding fifth vote in Celotex. In his concurring opinion, Justice White describes a burden of production far more stringent than a burden requiring a mere assertion. The moving party must identify those parts of the record that indicate the absence of a genuine issue of material fact.44 To meet that burden the moving party may produce relevant excerpts from the nonmovant's discovery responses indicating the absence of competent evidence to establish a genuine or material dispute-and that showing may be supplemented as needed by other evidence. So the movant cannot simply assert that the nonmovant lacks evidence to supports its claims.45 

Not only is Justice Rehnquist's language arguably consistent with Justice White's approach, there are other reasons not to equate the "pointing out" language with a mere-assertion standard. First, the Court in Adickes v. S. H. Kress and Company plainly held that the moving party bears the initial burden of demonstrating that summary judgment is proper.46 That burden is inconsistent with a mere-assertion standard, which is no burden at all. Further, Justice Rehnquist does not spill much ink in describing the movant's burden aside from the "pointing out" language. He does not clearly state that the movant may meet its initial burden merely by asserting that the opposing party lacks supporting evidence (and the issue was not raised by the Celotex parties).47 Thus, the Court was not confronted with any argument that the moving party need merely assert that the opposing party lacks supporting evidence. 

While several lower federal courts have adopted Justice White's approach,48 the issue has not been resolved definitively, and some cases-albeit vaguely-suggest otherwise.49 But the courts applying Justice White's standard have held unambiguously that the moving party must take affirmative steps to demonstrate a lack of evidence, usually by taking discovery.50 Indeed, according to one district court judge, the moving defendant cannot meet its burden merely by "gesturing toward a forest" but instead must proceed by "blazing a trail through it that others may follow."51 To establish the absence of evidence supporting the nonmoving party's claim, the party moving for summary judgment must first take discovery, ask the discovery questions that decisively settle the issues, and produce the favorable responses in its moving papers.52 

This standard takes seriously the Rule 56 requirement that the movant bears the initial burden of production. A defendant who poses no discovery requests cannot prevail merely by pointing to "silence in the record" because, although that silence "could reveal weaknesses in the plaintiff's case…it could simply reveal that the defendant has not asked for information which the plaintiff, in fact, possesses."53 If the moving defendant merely refers to a silent record without obtaining discovery responses to expose an absence of evidence, it fails to meet its initial burden. 

Sufficient Evidence 
While the California Supreme Court has not addressed the issue, all the lower appellate courts in the state that have done so agree with Justice White in Celotex that "[i]t is not enough to move for summary judgment without supporting the motion in any way or with a conclusory assertion that the plaintiff has no evidence to prove his case."54 Courts do not dispute that "something more" than mere assertion is required,55 including, at the least, a showing that the nonmoving party's discovery responses are too factually vague or its evidence is insufficient to support its claim as a matter of law.56 

The court of appeal in Rio Linda Unified School District v. Superior Court57 recently articulated a generalized test for determining whether the movant has met its initial burden of establishing that the nonmovant lacks evidence sufficient to support its claims. The test is one of substantial evidence: 

Under the new method for establishing a prima facie entitlement to judgment [established by Code of Civil Procedure Section 437c], the moving party must demonstrate a negative, i.e., that there is no evidence to support an element of the opponent's case. This is akin to the burden of an appellant in proving there is no substantial evidence in support of a judgment.58 

This substantial evidence test is not only consistent with the analogy between the summary judgment and directed verdict standards, it also is helpful because both the test and the methods for meeting it are well known to the bench and bar. "Substantial evidence" is evidence that "a fair and reasonable mind could accept as adequate to support a conclusion."59 A party appealing a judgment on the ground that it is not supported by substantial evidence must therefore show that the finder of fact could not reasonably have ruled in favor of the prevailing party, even when the evidence is interpreted in the light most favorable to the prevailing party.60 To prevail on summary judgment, the moving party must likewise establish that the nonmoving party's evidence is insufficient to support a verdict in its favor. 

If a party contends that a particular issue of fact has insufficient support in the record, the party must set forth all the material evidence relevant to that fact, not merely the evidence favorable to the party contending insufficient evidence.61 To do that, the moving party may use discovery responses as well as other forms of evidence to lay out all the evidence that, according to the nonmovant, supports its claim or defense.62 But the movant may supplement that showing with additional evidence and discovery responses that establish the insufficiency of the nonmoving party's evidence.63 The moving party may thereby demonstrate the insufficiency of the nonmovant's evidence. 

Most of the California summary judgment decisions since the 1992-93 Section 437c amendments involve cases in which the moving party has met its burden of showing that the nonmovant lacks sufficient evidence by highlighting the factually vague discovery responses of the nonmovant.64 This type of showing supports an inference that the nonmovant lacks evidence sufficient to support its case. 

The court in Scheiding v. Dinwiddie Construction65 recently explained that the Civil Discovery Act of 198666 imposes on the responding party a duty to answer interrogatory questions and other forms of discovery "in a straightforward fashion, and as completely as possible" given the information available at the time. Based on that duty of disclosure, an inference may be drawn that evidence not disclosed in a properly articulated interrogatory request does not exist. The movant thus may properly base a summary judgment motion on the presumption that the nonmovant's only supporting evidence is the evidence set forth in its discovery responses-but only if the discovery requests were properly tailored to support such an inference. Under this analysis, the plaintiff's discovery responses may reveal the absence of a triable issue of material fact. 

This method for seeking summary judgment was properly invoked by the defendant in Union Bank v. Superior Court,67 in which the plaintiffs alleged that they had been defrauded by the defendant bank. The defendant moved for summary adjudication on the fraud claim. In support of the motion, the defendant produced the plaintiffs' discovery responses, which were devoid of any evidence supporting claims either that 1) the defendant made fraudulent misrepresentations or 2) the defendant participated in a conspiracy to defraud. The court of appeal held that the defendant had met its initial burden of production under the 1992 and 1993 amendments to Section 437c by showing that the nonmovant lacked evidence sufficient to prevail at trial.68 

It is important to note that the Union Bank defendant did not merely point to the absence of supporting evidence in the record. Rather, the defendant first developed the record by propounding discovery, which revealed the lack of supporting evidence. That was an essential step in the process, because parties in civil litigation have no general duty to volunteer information other than as required under the discovery rules.69 An inference that the nonmovant lacks evidence to support its claim is only available if the movant has posed the "clinching" discovery questions.70 Otherwise, the absence of evidence in the record does not support an inference that the nonmovant lacks supporting evidence, since that party was not required to create such a record.71 

As a result of the legislative overruling of Blue Haven Pools, the moving party may also meet its initial burden of production by submitting the nonmovant's only supporting evidence, as ascertained through discovery. Thus a moving defendant can meet its initial burden by demonstrating the invalidity of the plaintiff's claim by submitting the plaintiff's evidence if that evidence is, as a matter of law, insufficient to support a verdict in the plaintiff's favor.72 

When the Burden Shifts to the Nonmovant 
The nonmovant is not required to make any showing at all unless the moving party meets its initial burden. But if that initial burden is met, then the burden of production shifts to the nonmovant,73 whose responsive burden is linked to its burden of persuasion at trial. The party bearing the burden of persuasion at trial must do more than simply show the possibility of a fact essential to its claim: it must prove its case by a preponderance of the evidence. Thus, the nonmovant's supporting evidence must do more than merely provide speculative support for its claim-a notion that the U.S. Supreme Court made clear not only in Anderson but also in Matsushita. When the nonmovant bears the burden of persuasion at trial, its evidence on summary judgment must support a reasonable conclusion that it is more likely than not that the alleged material supporting facts exist.74 Only that type of evidence will raise a genuine issue. 

The court's analysis is not mechanical. It must exercise judgment in assessing whether the nonmovant's evidence is sufficient to support a verdict: "The judge's inquiry…unavoidably asks whether reasonable jurors could find by a preponderance of the evidence that the plaintiff is entitled to a verdict."75 This requires a judgment about the underlying legal principles and the type of evidence necessary to support liability. Thus a trial court must review all the evidence produced on summary judgment and determine whether it is legally sufficient to support a verdict in the nonmoving party's favor.76 

Before Anderson, federal courts were far less likely to grant motions for summary judgment on the grounds that the nonmovant's evidence was so weak that no reasonable jury could accept it. That type of assessment was commonly considered to include the weighing of evidence, which by universal agreement trial courts must not do.77 The Court's reasoning in Anderson is somewhat controversial precisely because critics have charged that it authorizes trial courts to weigh the evidence.78 But the rhetorical device of equating a review based on the sufficiency of the evidence with an impermissible weighing of evidence is fallacious. 

The problem is that the term "weighing" is too vague to mark the line between permissible and impermissible judicial scrutiny of the evidence. Appellate courts routinely and properly assess the sufficiency of the evidence and, when they find that the evidence is insufficient to support the jury's verdict, that conclusion is not deemed a usurpation of the jury's legitimate role.79 Rather, it marks the limits within which a jury may exercise its prerogative.80 Summary judgment, like a directed verdict or judgment notwithstanding the verdict, can only be granted if a verdict for the nonmovant would be improper because the evidence cannot reasonably support such a verdict.81 

A State-Federal Distinction 
Despite these procedural similarities between federal and California summary judgment law, an important distinction remains. This difference stems from the fact that federal courts possess greater powers over case management than California state courts. 

Federal courts may grant summary judgment even if the moving party fails to meet its initial burden of production. The court, relying on its power to grant summary judgment sua sponte, may simply order the nonmovant to submit its supporting evidence.82 A moving party's failure to meet an initial burden of production thus does not necessarily prevent a federal district court from granting summary judgment in cases presenting no genuine issue of material fact. Thus, under the court's case management powers, a movant's failure to meet its initial burden of production is rendered a technicality that does not tie the court's hands on summary judgment. 

California courts do not have the same case management authority. California trial judges lack discretion to enter summary judgment sua sponte,83 unlike their federal counterparts.84 After a motion for summary judgment has been filed, however, California courts have the authority, under very limited circumstances, to grant summary judgment even if the movant fails to meet its initial burden. They may do so if the movant's evidentiary gap is filled by the nonmovant's papers and the nonmovant has a fair opportunity to present argument and evidence in opposition.85 Only then can California courts grant summary judgment despite the movant's failure to meet its initial burden. Other than that, however, California courts lack authority to force a nonmovant to present evidence sufficient to raise a genuine issue of material fact, whether or not a proper motion has been filed. 

That lack of authority is significant because the unsuccessful movant cannot file a second summary judgment motion on issues that have been previously asserted, unless there are newly discovered facts or a change of law.86 As a result, California courts, unlike federal courts, cannot dispose of cases on summary judgment-even in the absence of a genuine and material dispute-if the moving party fails properly to support its motion and the nonmovant does not inadvertently cure the movant's evidentiary gap.87 

1 Jesinger v. Nevada Fed. Credit Union, 24 F. 3d 1127, 1130 (9th Cir. 1994); Halvorsen v. Aramark Uniform Servs., Inc., 65 Cal. App. 4th 1383, 1387 (1998). 

2 Celotex Corp. v. Catrett, 477 U.S. 317 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986). 

3 Bayou Bottling, Inc. v. Dr. Pepper Co., 543 F. Supp. 1255, 1261 (W.D. La. 1982), aff'd, 725 F. 2d 300 (5th Cir. 1984). 

4 Doehler Metal Furniture Co. v. United States, 149 F. 2d 130, 135 (2d Cir. 1945) (Frank, J.). 

5 Scheiding v. Dinwiddie Constr. Co., 69 Cal. App. 4th 64, 70 (1999); Aisenson v. American Broadcasting Co., 220 Cal. App. 3d 146, 153 (1990) (noting that summary judgment is usually disfavored). 

6 National Indus., Inc. v. Republic Nat'l Life Ins. Co., 677 F. 2d 1258, 1265 (9th Cir. 1982); Barnes v. Blue Haven Pools, 1 Cal. App. 3d 123, 127 (1969). 

7 Pena v. W. H. Douthitt Steel & Supply Co., 179 Cal. App. 3d 924 (1986); Catrett v. Johns-Manville Sales Corp., 756 F. 2d 181, 190 (D.C. Cir. 1985) (Bork, J., dissenting), rev'd, 477 U.S. 317 (1987). 

8 Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986). 

9 Id. at 317. 

10 Catrett, 756 F. 2d at 185. 

11 Barnes v. Blue Haven Pools, 1 Cal. App. 3d 123, 127 (1969); Biljac Assoc. v. First Interstate Bank of Oregon, 218 Cal. App. 3d 1410, 1421-22 (1990). 

12 Blue Haven Pools, 1 Cal. App. 3d 123; Biljac, 218 Cal App. 3d at 1421. 

13 Biljac, 218 Cal App. 3d at 1421. 

14 Lloyd's of London v. Superior Court, 56 Cal. App. 4th 952, 958 (1997). 

15 See, e.g., Union Bank v. Superior Court, 31 Cal. App. 4th 573, 576 (1995); Scheiding v. Dinwiddie Constr. Co., 69 Cal. App. 4th 64, 82-83 (characterizing appellate decisions as differing only in emphasis). 

16 Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986); Scheiding, 69 Cal. App. 4th at 75. 

17 Houghton v. South, 965 F. 2d 1532, 1536 (9th Cir. 1992); Bacon v. Southern Cal. Edison Co., 53 Cal. App. 4th 854, 858 (1997). 

18 Juge v. County of Sacramento, 12 Cal. App. 4th 59, 66-67 (1993). 

19 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). 

20 T. W. Elec. Servs., Inc. v. Pacific Elec. Contractors Ass'n, 809 F. 2d 626, 630 (9th Cir. 1987). 

21 Anderson, 477 U.S. at 248. 

22 Doehler Metal Furniture Co. v. United States, 149 F. 2d 130, 135 (2d Cir. 1945). 

23 The term "directed verdict" is no longer used in Fed. R. Civ. P. 52, which now refers to motions for "judgment as a matter of law" in cases tried before a jury, and motions for "judgment on partial findings" in cases in which the district court is the trier of fact. 

24 See Musick v. Burke, 913 F. 2d 1390, 1394 (9th Cir. 1990). 

25 Anderson, 477 U.S. at 250-52; Eastman Kodak v. Image Technical Servs., 504 U.S. 451, 468-69 (1992). 

26 Anderson, 477 U.S. at 249-50, 252 (applying clear-and-convincing standard); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986) (applying normal preponderance standard). 

27 Scheiding v. Dinwiddie Constr. Co., 69 Cal App. 4th 64, 70 (1999). 

28 Hoch v. Allied-Signal, Inc., 24 Cal. App. 4th 48, 58 (1994) (Werdeger, J.). 

29 Hunter v. Pacific Mechanical Corp., 37 Cal. App. 4th 1282, 1288 (1995). 

30 Scheiding, 69 Cal. App. 4th at 71. 

31 Jackson v. Paramount Pictures Corp., 68 Cal. App. 4th 10 (1998). 

32 Id. at 35 (quoting Anderson, 477 U.S. at 254) (emphasis added). 

33 Hoch v. Allied-Signal, Inc., 24 Cal. App. 4th 48 (1994). 

34 Id. at 60. 

35 Id. 

36 Leslie G. v. Perry & Associates, 43 Cal. App. 4th 472 (1996). 

37 Id. at 483. 

38 Lust v. Merrell Dow Pharmaceuticals, Inc., 89 F. 3d 594, 598 (9th Cir. 1996); United Steelworkers of America v. Phelps Dodge Corp., 865 F. 2d 1539, 1543 (9th Cir. 1989) (en banc). 

39 Dowty Communications v. Novatel Computer Sys., 817 F. Supp. 581, 593 (D. Md. 1992) (describing "secondary debate" in the various Celotex opinions on the issue of how the moving party may meet its reduced burden of production), aff'd, 33 F. 3d 390 (4th Cir. 1994). 

40 At the time Celotex was filed, Justice Rehnquist had not yet been elevated to Chief Justice. 

41 Four justices joined Justice Rehnquist's decision, which announced the judgment for the Court. Four justices, however, expressed agreement with Justice White's analysis of the moving party's burden of production as set forth in his concurrence. The ninth justice, Justice Stevens, dissented on unrelated grounds and did not address the issue. Celotex Corp. v. Catrett, 477 U.S. 317, 337 (Stevens, J., dissenting). 

42 Id., 477 U.S. at 325. 

43 See, e.g., Scheiding v. Dinwiddie Constr. Co, 69 Cal. App. 4th 64, 71 (1999); 10A Wright et al., Federal Practice and Procedure §2720 (1999 Supp.). 

44 Celotex, 477 U.S. at 328 (White, J., concurring). 

45 Id.; see also Schwarzer et al., The Analysis and Decision of Summary Judgment Motions, 139 F.R.D. 441, 478 (1992). 

46 Adickes v. S. H. Kress & Co., 398 U.S. 144, 157, 90 S. Ct. 1598, 1608 (1970). 

47 During oral argument before the Supreme Court, the counsel for Celotex conceded that if the plaintiff had identified witnesses in its discovery responses, Celotex would have been required to take the deposition of any such witnesses before moving for summary judgment. Catrett v. Johns-Manville Sales Corp., 826 F. 2d 33, 38 n.11 (1987). 

48 See, e.g., Beatty v. Washington Metro. Area Transit Auth., 860 F. 2d 1117, 1120-21 (D.C. Cir. 1988); Clark v. Coats & Clark, Inc., 929 F. 2d 604, 607-08 (11th Cir. 1991); Schuyler v. United States, 987 F. Supp. 835, 839 (S.D. Cal. 1997); Anderson v. Radisson Hotel Corp., 834 F. Supp. 1364, 1367-68 (S.D. Ga. 1993); Haywood v. Nye, 999 F. Supp. 1451, 1463 (D. Utah 1998); Andrews v. Crump, 984 F. Supp. 393, 402-03 (W.D. N.C. 1996); Dowty Communications v. Novatel Computer Sys., 817 F. Supp. 581, 593-95 (D. Md. 1992). 

49 In Daubert v. Merrell Dow Pharmaceuticals, Inc., 43 F. 3d 1311, 1315 (9th Cir. 1995), the Ninth Circuit stated that the burden of the moving party is merely to point to the absence of a genuine issue; the movant need not produce any evidence in order to shift the burden of production to the nonmovant. See also Lust v. Merrell Dow Pharmaceuticals, Inc., 89 F. 3d 594, 598 (9th Cir. 1996). What is not discussed in Daubert or Lust, however, is whether the movant must point to something that establishes the lack of a genuine issue, such as the nonmovant's evidence or discovery responses. 

50 See e.g., Haywood v. Nye, 999 F. Supp. 1451, 1463 (D. Utah 1998). 

51 Radisson Hotel Corp., 834 F. Supp. at 1369 n.3. 

52 Id. at 1369. 

53 Haywood, 999 F. Supp. at 1463. 

54 Celotex Corp. v. Catrett, 477 U.S. 317, 328 (White, J., concurring). See Lloyd's of London v. Superior Court, 56 Cal. App. 4th 952, 956-57 (1997) (California courts require movant to demonstrate the inadequacy of the nonmovant's evidence). 

55 Lloyd's, 56 Cal App. 4th at 958; accord Travelers Casualty & Surety Co. v. Superior Court, 63 Cal. App. 4th 1440, 1452-53 (1998). 

56 Lloyd's, 56 Cal App. 4th at 956-57. 

57 Rio Linda Unified Sch. Dist. v. Superior Court, 52 Cal. App. 4th 732 (1997). 

58 Id. at 739. 

59 Riveros v. City of Los Angeles, 41 Cal. App. 4th 1342, 1357 n.11 (1996). 

60 Jordan v. City of Santa Barbara, 46 Cal. App. 4th 1245, 1254-55 (1996). 

61 Rio Linda, 52 Cal. App. 4th at 739-40 (citing Foreman & Clark Corp. v. Fallon, 3 Cal. 3d 875, 881 (1971)). 

62 See, e.g., Addy v. Bliss & Glennon, 44 Cal. App. 4th 205, 214 (1996); Lloyd's of London v. Superior Court, 56 Cal. App. 4th 952, 956-57 (1997). 

63 Lloyd's, 56 Cal App. 4th at 656-57. 

64 See, e.g., id. at 956-57 (citing cases). 

65 Scheiding v. Dinwiddie Constr., 69 Cal. App. 4th 64 (1999). 

66 The Civil Discovery Act of 1986, Code Civ. Proc. §§2016 et seq. 

67 Union Bank v. Superior Court, 31 Cal. App. 4th 573 (1995). 

68 Id. at 580-81. 

69 Scheiding, 69 Cal. App. 4th at 76. 

70 See Haywood v. Nye, 999 F. Supp. 1451, 1463 (D. Utah 1998). 

71 Scheiding, 69 Cal App. 4th at 81. 

72 See, e.g., Leslie G. v. Perry & Assoc., 43 Cal. App. 4th 472, 483 (1996) (holding that the nonmoving party's evidence is insufficient to meet the preponderance-of-the-evidence standard that will apply at trial). 

73 Adickes v. S. H. Kress & Co., 398 U.S. 144, 157 (1970); Brantley v. Pisaro, 42 Cal. App. 4th 1591, 1598 (1996). 

74 Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (holding that a "metaphysical" possibility is not sufficient to raise a genuine issue under Fed. R. Civ. Proc. 56); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 254 (the nonmoving plaintiff's evidence must be sufficient to support a jury verdict in its favor in light of the burden of persuasion applied at trial); Leslie G., 43 Cal. App. 4th at 483-84 (holding that speculation is not sufficient to raise a triable issue under Code Civ. Proc. §437c). 

75 Anderson, 477 U.S. at 252-55. 

76 Id. At the time Anderson was decided, it was not clear whether a court ruling on a directed verdict motion and considering permissible inferences should consider all the evidence or just the evidence supporting the nonmoving party's asserted inferences. The Ninth Circuit, in T.W. Elec. Servs., Inc. v. Pacific Elec. Contractors Ass'n, 809 F. 2d 626 (9th Cir. 1987), concluded that on summary judgment, the district court could only consider the nonmoving party's evidence in assessing whether there is a triable issue based on the nonmovant's asserted inferences. Id. at 631 n.3. That observation, however, is of questionable authority given the Ninth Circuit's apparent position that, on a motion for a directed verdict, the court should "view the evidence as a whole" in assessing the validity of inferences asserted by the nonmovant. Electro Source, Inc. v. United Parcel Serv., 95 F. 3d 837, 838 (9th Cir. 1996). 

77 Anderson, 477 U.S. at 249. 

78 Id. at 266 (Brennan, J., dissenting) ("[T]he Court's opinion is also full of language which could surely be understood as an invitation-if not an instruction-to trial courts to assess and weigh evidence much as a juror would."). 

79 Sawyer v. First City Fin. Corp., 124 Cal. App. 3d 390, 406 (1981) (noting that, on summary judgment, the "trial court is…to some extent required to weigh evidence in determining whether the factual issues asserted related to a 'material fact,' and must determine what 'inferences [are] reasonably deducible from [the] evidence'"). 

80 Galloway v. United States, 319 U.S. 373, 388-93, 63 S. Ct. 1077 (1943) (directed verdict does not violate Seventh Amendment). 

81 See Friedenthal, Cases on Summary Judgment, 63 Notre Dame L. Rev. 770, 771-72, 783 (1988). 

82 10A Wright et al., Federal Practice and Procedure §2720, at 345 (1998). 

83 Dvorin v. Appellate Dept., 15 Cal. 3d 648, 650-51 (1975) (noting that trial courts are authorized to grant summary judgment only based "on motion" brought under Code Civ. Proc. §437c); Lloyd's of London v. Superior Court, 56 Cal. App. 4th 952, 959 (1997) (holding that recent amendments to Code Civ. Proc. §437c do not confer the power to grant summary judgment apart from motion). 

84 Lloyd's, 56 Cal App. 4th 959. 

85 Villa v. McFerren, 35 Cal. App. 4th 733, 750-51 (1995); Weiss v. Chevron, U.S.A., Inc., 204 Cal. App. 3d 1094, 1096-98 (1988). 

86 Bagley v. TRW, Inc., 73 Cal. App. 4th 1092 (1999); Code Civ. Proc. §437c(f)(2). 

87 See, e.g., Lloyd's, 56 Cal. App. 4th 952. 


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