Part 4 of this article appeared in the November December issue of the Sacramento Lawyer. This installment picks up where the fourth one left off.

My usual disclaimer applies. Nothing herein is to be considered a local rule of court, an unwritten court rule, or a court policy. What follows are simply the views of one judge, who reserves the right to change his mind.

A party who seeks to oppose a summary judgment/adjudication motion must prepare, file, and serve the following documents: responding separate statement of material facts, memorandum of points and authorities, and admissible evidence that creates a disputed issue of material fact. The opposing party may also prepare and file his/her/its own separate statement of additional disputed material facts, objections to the moving party's evidence, and a request for judicial notice. All opposing documents are required to be filed and served 14 calendar days before the hearing. This means if the 14th day is a holiday or weekend, the opposition must be filed on the preceding court day and not the following court day. If the latter date is chosen, then the papers will not have been filed the required 14 days before the hearing, and the court may disregard them.

In summary judgment/adjudication practice, the initial burden is always on the moving party to make a prima facie showing that there are no triable issues of material fact. Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850. The pleadings define the issue to be resolved. "As to each claim as framed by the complaint, the defendant must present facts to negate an essential element or to establish a defense. Only then will the burden shift to the plaintiff to demonstrate the existence of a triable, material issue of fact.'" Benedek v. PLC Santa Monica (2002) 104 Cal.App.4th 1351, 1355. California law differs from the federal summary judgment standard in that a defendant moving for summary judgment must present evidence, and not merely point out through argument, that the plaintiff does not possess and cannot reasonably obtain, evidence needed to prove his/her/its claim. Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at 853 855.

Once the moving party has met its burden, the burden shifts to the opposing party to show that a triable issue of one or more material facts exists as to that cause of action (or as to a defense if plaintiff is the moving party). The opposing party "may not rely upon the mere allegations or denials" of his "pleadings to show that a triable issue of material fact exists but, instead," must "set forth the specific facts showing that a triable issue of material fact exists as to that cause of action or a defense thereto." CCP section 437c(o)(2).

Employment discrimination/retaliation cases present a double shifting burden, following the McDonnell Douglas three step analysis (see McDonnell Douglas Corp v. Green (1973) 411 U.S. 792, 802 805). First, the court determines whether the employee established a prima facie case of retaliation by showing that (a) he/she engaged in protected activity, (b) the employer subjected him/her to an adverse employment action, and (c) there is a causal link between the two. Flait v. North American Watch Corp. (1992) 3 Cal.App.4th 467, 476.

Second, assuming that the employee has met his/her burden, the burden shifts to the employer to articulate a legitimate nondiscriminatory reason for any adverse employment action, e.g., a legitimate business reason. Sada v. Robert F. Kennedy Medical Center (1997) 56 Cal.App.4th 138, 155.

Third, if the employer successfully meets its burden, the burden shifts back to the employee to show that admissible evidence exists to support the claim that the asserted nondiscriminatory reason is untrue or pretextual, or that the employer acted with a retaliatory animus, so that there is a triable issue of material fact on the point. Horn v. Cushman & Wakefield Western Inc. (1999) 72 Cal.App.4th 798, 806 807.

It is not enough for the party opposing the motion to point to a factual dispute; the fact in dispute must be "material." In order to be "material," the fact must relate to some claim or defense at issue and "be essential to the judgment in some way." Riverside Community Facilities Dist. v. Bainbridge 17 (1999) 77 Cal.App.4th 644, 653. Further, the opposition evidence must be directed to issues raised by the pleadings. Distefano v. Forester (2001) 85 Cal.App.4th 1249. A summary judgment motion may not be defeated by producing evidence to support claims that are outside of the issues framed by the pleadings. Vournas v. Fidelity Nat. Title Ins. Co. (1999) 73 Cal.App.4th 668.

While the opposing party is entitled to have all reasonable inferences drawn in its favor, in order to defeat a motion for summary judgment or adjudication, the inferences upon which the opposing party relies cannot be based on speculation or surmise. Joseph E. Di Loreto, Inc. v. O'Neill (1991) 1 Cal.App. 4th 149. Further, the inferences must satisfy the "more likely than not" evidentiary standard plaintiff will bear at trial. Leslie G. v. Perry & Associates (1996) 43 Cal.App.4th 472, 487 (must show that the inference supporting theory of the case is more reasonable or probable that those to the contrary). The opposing party does not meet its burden simply by pointing out that more than one inference can be drawn from the undisputed facts. See Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 163.

"But if the court determines that all of the evidence presented by the plaintiff, and all of the inferences drawn therefrom, show and imply unlawful conspiracy only as likely as permissible competition or even less likely, it must then grant the defendants' motion for summary judgment, even apart from any evidence presented by the defendants or any inferences drawn therefrom, because a reasonable trier of fact could not find for the plaintiff. Under such circumstances, the unlawful conspiracy issue is not triable that is, it may not be submitted to a trier of fact for determination in favor of either the plaintiff or the defendants, but must be taken from the trier of fact and resolved by the court itself in the defendants' favor and against the plaintiff." Aguilar v. Atlantic Richfield, supra, 25 Cal.4th at 857.

The opposing party cannot rely on the allegations of his/her/its own pleadings, even if verified, to make or supplement the evidentiary showing required in the summary judgment context. College Hospital Inc. v. Superior Court (1994) 8 Cal.4th 704, 720. Further, if the moving party defendant has met his/her/its burden, plaintiff cannot simply orally oppose the motion. Lyons v. Security Pacific Nat. Bank (1995) 40 Cal.App.4th 1001, 1013, 1014.

When opposing a motion, one must meet the standard of proof that he/she/it will bear at trial. For example, if the plaintiff is going to prevail on a punitive damages claim, he/she/it can only do so by establishing malice, oppression or fraud by clear and convincing evidence. Thus, any evidence submitted in response to a motion for summary adjudication must necessarily meet that standard. Basich v. Allstate Ins. Co. (2001) 87 Cal.App.4th 1112, 1121.

The responding separate statement must cite to admissible evidence, not merely "facts." CRC Rule 342(f) requires that "an opposing party who contends that a fact is disputed must state, on the right side of the page directly opposite the fact in dispute, the nature of the dispute and describe the evidence that supports the position that the fact is controverted. That evidence must be supported by citation to exhibit, title, page, and line numbers in the evidence submitted." In order to reduce the amount of secretarial work required, an opposing party should take advantage of CRC Rule 342(i) to request an electronic copy of the moving party's separate statement.

The opposing party may submit his/her/its own separate statement of disputed facts if appropriate. CCP section 437c(b)(3). Such separate statement must follow the same rules as the moving party's statement. All material facts contended to be disputed must contain a citation to admissible supporting evidence. The opposing party cannot simply cite to his/her/its own separate statement as "evidence" to dispute the moving party's statement. The citation must be to admissible evidence that creates the dispute.

If the moving party's evidence is not admissible, the opposing party should prepare and file objections to such evidence (preferred method), or arrange for a reporter to be present at the hearing and make the oral objection on the record. Objections not made are deemed waived. CRC, Rules 343 and 345.

January / February 2006