Brantley v. Pisaro

• Decision Date: 29 February 1996
• Docket Number: No. F023123,F023123
• Citation: 42 Cal.App.4th 1591,50 Cal.Rptr.2d 431
• Court: California Court of Appeals Court of Appeals
• Parties: , 96 Cal. Daily Op. Serv. 1378, 96 Daily Journal D.A.R. 2293 Carl H. BRANTLEY, Plaintiff and Appellant, v. Frank R. PISARO, Defendant and Respondent.

Page 431

50 Cal.Rptr.2d 431

42 Cal.App.4th 1591, 96 Cal. Daily Op. Serv. 1378,

96 Daily Journal D.A.R. 2293

Carl H. BRANTLEY, Plaintiff and Appellant, v. Frank R. PISARO, Defendant and Respondent.

No. F023123.

Court of Appeal, Fifth District, California.

Feb. 29, 1996.

[42 Cal.App.4th 1593] Dennis W. Dunn, Sonora, for Plaintiff and Appellant.

Curtis & Arata and Jack M. Jacobson, Modesta, for Defendant and Respondent.

OPINION

DIBIASO, Associate Justice.

The trial court granted the motion for summary judgment filed by respondent Frank R. Pisaro and thereafter entered judgment dismissing the action brought by appellant Carl H. Brantley. We will reverse. We will conclude that a defendant moving for summary judgment (or summary adjudication) under CODE OF CIVIL PROCEDURE SECTION 437C¹, as amended in 1992 and 1993, may still show the plaintiff's cause of action has no merit by demonstrating that the undisputed facts negate the existence of one or more essential elements of the cause of action.

PROCEDURAL FACTS

Appellant Carl H. Brantley filed his action for damages for personal injuries on July 16, 1993. Appellant's complaint contained a single cause of action for negligence. In relevant part, the complaint stated that on or about June 1, 1992:

"while [appellant] was descending a stairway located at 5874 Arbolada Drive, LaGrange, California, the railing of the stairway pulled away from the wall to which it was attached, causing [him] to fall and sustain serious injuries."

Respondent Frank R. Pisaro was alleged to have "negligently owned, maintained, managed and operated" the premises located at 5874 Arbolada Drive, LaGrange, California.

On April 13, 1994, respondent filed and served a motion for summary judgment with supporting papers and argument. Respondent claimed appellant's lawsuit had no merit and there did not exist a triable issue of fact. Appellant filed papers in opposition to the motion.

The hearing on respondent's motion for summary judgment was held on August 8, 1994. The trial court granted the motion by written order on November 10, 1994. In its order, the trial court found in relevant part: "there are no facts which would support a disputed issue as to whether or not there was a dangerous or defective condition and that [respondent] either created the condition or had notice of that condition." The judgment from which appellant takes this appeal was entered on December 2, 1994. ²

DISCUSSION

I.

Section 437c was amended in 1992 and 1993. ³ The amended statute provides in part that a defendant moving for summary judgment or summary adjudication "has met his or her burden of showing that a cause of action has no merit if that party has shown that one or more elements of the [plaintiff's] cause of action ... cannot be established...." (§ 437c, subd. (o)(2); Union Bank v. Superior Court, supra, 31 Cal.App.4th at p. 585, 37 Cal.Rptr.2d 653; emphasis added.) ⁴ Once the moving defendant has satisfied this obligation, the burden shifts to the plaintiff to demonstrate a triable issue of material fact as to the existence of the element or elements challenged by the defendant. (§ 437c, subd. (o)(2); Union Bank v. Superior Court, supra, 31 Cal.App.4th at pp. 583, 590, 37 Cal.Rptr.2d 653.) To do so, the plaintiff may not rely upon the "mere allegations ... of its pleadings" and instead must show by "specific facts" that the requisite triable issue of material fact is present. (§ 437c, subd. (o)(2).)

The revision of section 437c overruled Barnes v. Blue Haven Pools (1969) 1 Cal.App.3d 123, 127, 81 Cal.Rptr. 444, insofar as it held that a defendant seeking a summary judgment was required to " 'negative the matters which the resisting party would have to prove at the trial.' " (Union Bank v. Superior Court, supra, 31 Cal.App.4th at pp. 587-588, 37 Cal.Rptr.2d 653.) Thus, a defendant is no longer compelled to disprove an essential element of the plaintiff's cause of action in order to obtain a summary judgment, as was the case before advent of the amendments (see, e.g., Do It Urself Moving & Storage, Inc. v. Brown, Leifer, Slatkin & Berns (1992) 7 Cal.App.4th 27, 38, 9 Cal.Rptr.2d 396; Chevron U.S.A., Inc. v. Superior Court (1992) 4 Cal.App.4th 544, 548, 5 Cal.Rptr.2d 674). As succinctly explained by the court in Union Bank v. Superior Court, supra, 31 Cal.App.4th at p. 590, 37 Cal.Rptr.2d 653, the 1992 and 1993 amendments, and their underlying legislative history, disclosed an intent "that the burden-shifting characteristics of rule 56 of the Federal Rules of Civil Procedure ... were to be applied to California summary judgment motions when a defendant relied on a plaintiff's factually inadequate discovery answers to seek summary judgment. Now, a moving defendant may rely on factually devoid discovery responses to shift the burden of proof pursuant to section 437c, subdivision (o)(2)." (See also Hagen v. Hickenbottom (1995) 41 Cal.App.4th 168, 184-185, 48 Cal.Rptr.2d 197; Hunter v. Pacific Mechanical Corporation (1995) 37 Cal.App.4th 1282, 44 Cal.Rptr.2d 335; Villa v. McFerren (1995) 35 Cal.App.4th 733, 41 Cal.Rptr.2d 719.) ⁵

In Union Bank v. Superior Court, supra, 31 Cal.App.4th 573, 37 Cal.Rptr.2d 653, the defendant backed its motion for summary judgment with the plaintiff's answers to requests to admit and interrogatories. (Id. at pp. 577-578, 37 Cal.Rptr.2d 653.) The defendant's interrogatories asked the plaintiff to state all facts and to identify all witnesses and documents which supported the plaintiff's cause of action for fraud. (Id. at p. 578, 37 Cal.Rptr.2d 653.) The plaintiff replied only that he "believe[d]" the defendant "knowingly and fraudulently" committed certain allegedly deceitful acts. (Ibid.)

The Court of Appeal held these "factually devoid" discovery responses were enough to meet the defendant's obligation under section 437c, subdivision (o)(2), to show "that one or more of the elements of the cause of action cannot be established." (Union Bank, supra, 31 Cal.App.4th at p. 590, 37 Cal.Rptr.2d 653.) Consequently, the burden had been shifted to the plaintiff to proffer admissible evidence which disclosed the existence of a triable factual issue about whether the defendant committed the alleged fraud. (Id. at p. 593, 37 Cal.Rptr.2d 653.)

We are not presented here with the same circumstances faced by the court in Union Bank. Respondent does not rely upon asserted factually insufficient discovery responses by appellant to support the motion. Instead, respondent contends, as he argued in the trial court, that appellant's cause of action for negligence "cannot be established" as a matter of law (§ 437c, subd. (o)(2)) because the relevant undisputed facts prove: (1) there was "no dangerous condition of the stairway" and (2) "even if such a condition existed [respondent] did not have notice of that condition." In other words, respondent maintains he has "disproved" two essential elements of appellant's claim. For his part, appellant contends the trial court erred in granting the motion for summary judgment because respondent's evidence did not eliminate all possible theories of recovery available to appellant under the broad allegations of the complaint; this argument was made often, and often made successfully, by plaintiffs prior to the 1992 and 1993 amendments to section 437c. (See, for example, Chevron U.S.A., Inc. v. Superior Court, supra, 4 Cal.App.4th at p. 548, 5 Cal.Rptr.2d 674; Pultz v. Holgerson (1986) 184 Cal.App.3d 1110, 1117, 229 Cal.Rptr. 531; Barnes v. Blue Haven Pools, supra, 1 Cal.App.3d at p. 127, 81 Cal.Rptr. 444.)

The question before us therefore is whether a defendant who moves for summary judgment under section 437c, subdivision (o)(2), as it now reads may still shift the burden of producing evidence of a triable issue of fact to the plaintiff by the tactic of negating or "disproving" a necessary element of the plaintiff's cause of action. ⁶ We believe the answer is yes. We find nothing in the legislative history of the 1992 and 1993 amendments which suggests the Legislature desired to tamper with this preexisting stratagem or withdraw it entirely from a defendant's section 437c repertoire. In fact, a portion of the history underlying the 1992 legislation provides some support for the proposition the Legislature intended to retain the option intact for moving defendants. A report prepared by the Assembly Committee of the Floor Coordinator explains the purpose of the Bill (Assembly Bill 2616) as in part "providing that a defendant has shown that its motion for summary judgment or summary adjudication shall be granted if the defendant ... negates an element of the plaintiff's cause(s) of action...." (Assem. Floor Coordinator Rep. on Assem. Bill No. 2616 (Aug. 25, 1992) p. 2; see Union Bank v. Superior Court, supra, 31 Cal.App.4th at p. 586, 37 Cal.Rptr.2d 653.)

In addition, the phrase "cannot be established" was not new to section 437c in 1992. It first appeared in 1990, and was then placed in subdivision (f), which dealt only with motions for summary adjudication. (See City of Emeryville v. Superior Court (1991) 2 Cal.App.4th 21, 25, 2 Cal.Rptr.2d 826.) Other than limit the issues for which summary adjudication was available, the 1990 legislation was not intended to change existing summary judgment law. (Ibid.) We are unaware of any authority which absolved a defendant who moved for summary adjudication after the effective date of this addition and before the effective date of the 1992 amendments from satisfying the same burden applicable to a motion for summary judgment--that the evidence presented in support of the motion be sufficient to disprove as a matter of law an essential element of the cause of action. Thus, permitting a defendant to negate an element of the plaintiff's cause of action by affirmative evidence under the "cannot be established" standard now found in subdivision (o)(2) of section 437c does nothing more than entitle a defendant to...