PRETRIAL ADJUDICATION
...Summary Judgment & Summary Adjudication
......Burdens of Production
.........D as Moving Party
............Burden Shifts to P
50 Cards On This Topic:

Defendant’s burden and shift to plaintiff.

D moving for SJ may rely on discovery responses by P which are devoid of fact to shift burden of proof to P under Code Civ. Proc. 437c (o)(2) to show triable issue of fact.

D’s reliance on interrogatory answers sufficient to shift burden of proof to P to produce evidence of exposure to defective product.

Social worker entitled to qualified immunity despite genuine issues of material fact as to whether she fabricated evidence of foster caregiver's child abuse.

SJ for Ds reversed where officers used excessive force in pointing guns at and handcuffing unarmed 11-year-old child who was cooperating with their requests.

When D makes properly supported SJ motion based on official immunity, P must produce own evidence—dist. court not allowed to merely assume truth of challenged factual allegations in complaint.

Difference between Cal. and fed. SJ standards was cogent reason for dist. ct. to reach merits of D's SJ motion even though Cal. court had earlier denied similar motion.

Trustee's SJ motion properly granted where P could not establish quid pro quo sexual harassment or pervasive, severe conduct on D's part to satisfy CC 51.9.

Ps made prima facie case for sex harassment under FEHA-favorable treatment warden gave to female employees with whom he was having affairs was sufficiently widespread to have created actionable hostile work environment.

SJ for ins. co. D reversed where vehicle theft exclusion was ambiguous and did not clearly alert insureds there was no coverage if theft occurred when the insured stepped out of the car but was in close proximity and attending to it.

Ps did not have viable claims as bystanders for negligent infliction of emotional distress arising out of alleged medical malpractice directed to their mother.

SJ properly granted where P did not produce evidence to justify finding of triable issues of fact about whether, w/out any legal malpractice occurring, he would have received a more favorable settlement or outcome at trial.

Where P produces evidence from which a reasonable inference can be drawn that the dangerous condition at business was created by D or employees, D is charged with notice of the dangerous condition; SJ for D reversed.

In wrongful death action, although H carried initial BOP on SJ, trial court erred in not admitting W's transcript of a phone call as H's party admissions, which would create a triable issue of fact.

Triable issues existed as to primary and express contractual assumption of risk where riding coach convinced deceased rider's mother that injured horse, which tripped and fell on rider, was fit for her to ride at competition.

Foster agency met its burden to show it was not directly or vicariously liable for foster parent's leaving C alone in bath where she drowned, P did not raise triable issue to contrary and SJ properly entered for D.

Although EC 646 presumption of negligence (RIL) disappears when evidence tending to rebut the presumed fact is introduced, P may still rely on the logic of the underlying CL inference of negligence if evidence supports it.

SJ for Wyeth reversed where P showed material factual dispute as to whether her doctor relied on product info provided by name-brand drug manufacturer.

SJ proper for gen’l contractor where injured worker didn’t produce evidence that contractor retained control over safety conditions, and contributed by affirmative conduct to unsafe condition that caused injury.

Violent assault on employee in FedEx parking lot not reasonably foreseeable by FedEx when prior incidents not threatening or intimidating and case boiled down to a few sightings of nonthreatening transients.

As Society produced affirmative evidence from past and current provincials that it received no reports of sexual misconduct by accused priest, trial court did not err in granting SJ to Ds based on SOL bar of CCP 340.1.

When full-time employee, during time medical leave was sought, worked a similar, though part-time job for another employer, part-time job is evidence of ability to do similar work for first employer, but evidence not conclusive.

As atty malpractice SOL tolled while D represented P in same litigation under "continuous representation" tolling provision, error to rule SOL barred the action as matter of undisputed fact.

Litigation privilege did not apply to lawyers' demand letters to manufacturer's customers, claiming products they sold were illegal, before lawsuits filed against customers.

Design engineers met initial burden of showing they owed no duty of care to property owner or gen'l contractor, who then failed to produce evidence showing existence of duty or triable issue of material fact.

Because P's expert declarations gave no factual basis or reasoned explanation for opinion doctors were negligent, they had no evidentiary value and P failed to establish triable issue of material fact.

SJ for employers affirmed where they proved defamatory statements were made on privileged occasion, and P presented no evidence from which a reasonable jury could infer malice.

Riding scooter is covered by primary assumption of risk only when it involves danger, physical exertion and skill, and competitive challenge; triable issue exists whether child was riding scooter in such a manner when injured.

SJ for landlord proper where landlord had no actual knowledge of his tenant's dog's vicious propensities and owed no duty to tenant's guest who was bitten by dog.

SJ in favor of D school district affirmed where district did not owe duty to injured student to suspend his assailant and no evidence existed to show alleged breach of general duty to supervise was proximate cause of injury.

SJ reversed where triable issue existed as to whether groundwater contamination was permanent or continuing nuisance; cause of action under safe drinking water act barred by statute of limitation.

Triable issues of material fact existed as to whether insurer breached contracts in changing policies so premiums no longer based on initial enrollment age but on attained age at renewal.

Medical malpractice P, relying on res ipsa loquitur, failed to raise triable issue of material fact that Ds were negligent, or caused her injuries.

SJ for insurer appropriate where insured's damages caused by corrosion and/or contamination, both of which explicitly excluded from policy coverage.

Insurer not req'd to present evidence ruling out all imaginable causes of contamination and corrosion, or disprove every possible cause of loss in order to satisfy initial burden as movant on its SJ motion.

SJ reversed where triable issue of fact existed as to whether lawyer sued for malpractice was intended 3d party beneficiary of clients’ release agreement in underlying lawsuit.

Error to grant SJ for Ds where they failed initial burden of production to make prima facie showing affirmative defense applied and burden did not therefore shift to P to raise triable issue.

SJ improper where movant's evidence insufficient to support inference P permanently disabled and court erred in then shifting burden to P.

SJ improperly granted where Ds’ showing did not support judgment in their favor and burden did not shift to P to demonstrate triable issue.

D failed to make affirmative showing that P’s case could not be established sufficient to shift burden; suggesting possibility P could not prove case insufficient.

D may shift burden to P by relying on factually insufficient discovery responses by P or by "negating or disproving" necessary element of P’s cause of action.

Landowner moving for SJ, through factually vague depo responses, showed absence of evidence to support P’s negligence claim. P failed to carry shifted burden to show triable issue of material fact.

Moving party Ds established that cause of action was without merit as Ps not "intended beneficiaries" of real estate broker's advice, thus shifting burden of proof to Ps.

P’s failure to present legally admissible opinion testimony in opposition papers to controvert that submitted by D warranted SJ for D.

Moving Ds failed to meet burden of introducing sufficient facts to make out assumption of risk defense where case controlled by maritime law not recognizing such defense.

D met burden of production in wrongful termination action by producing forms on which Ps acknowledged at-will employment, showing Ps’ case without merit and shifting burden to Ps.

D must make sufficient showing of no triable material issues of fact; no burden on P to show s/he has C/A unless D’s initial showing is sufficient to justify SJ.

Where D bases summary judgment motion on asserted defense, burden shifts to P to raise triable issue of material fact with regard to such defense.

Husband of surgery patient given HIV-infected blood failed to establish triable issue of fact re causation, where D knew of risk and existing disease posed greater risk.

In employment termination, P must produce substantial responsive evidence that employer’s showing untrue or pretextual; speculation not responsive.