Shifting burdens, shifting sands

A look at case law that can help you get through the barrier of summary judgment

Sharon J. Arkin
2014 December

As the court’s budget crisis deepens year by year, resources are cut back, staff is lost, courtrooms are closed, and every judge has a bigger-than-ever caseload. And year by year the rate of summary judgments granted has increased. Coincidence? Well, maybe.

But no matter how conscientious a judge may be, the temptation to use summary judgment as a docket-clearing device is growing. And even the appellate courts are not immune. In the past, when you were faced with a trial judge that rubber-stamped summary judgment grants, you could count on the appellate courts to fix it. Not so much anymore. Even the appellate courts have taken a swing towards the anti-consumer, anti-plaintiff side.

And let’s face it: Summary judgments are the defense bar’s weapons of choice. It’s nearly impossible to get a summary judgment motion granted as a plaintiff, although summary adjudication of some issues (insurance policy interpretation, for example) is theoretically possible (emphasis on “theoretically”).

So it’s critically important that you maximize your odds. I could tell you the really obvious things like: “Don’t take the case unless it’s really, really good.” Duh. And because “really, really good” cases are thick on the ground, just waiting to be snapped up by you, that should be all you need to do, right? So . . . back to reality. Most of the cases we work on are less than perfect: Someone has been wronged, and their case cries out for justice, but there are problems. There are always problems. But that doesn’t mean you have to give the defense an easy road to getting a summary judgment. There are things you can do to increase your odds of overcoming summary judgment.

Aguilar burden shifting

Justice Stanley Mosk was a great man: A strong liberal, and a remarkable scholar. He fought for justice for consumers throughout his career, especially when he served as attorney general. But his decision in Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, is incredibly dense and hard to understand. It’s actually very valuable for plaintiffs in the summary judgment context, but reading through it is tough going. There are, however, some jewels in it that can help you set up your case to win on summary judgment.

Under the federal standard for assessing the burden on summary judgment motions, the defense (and some courts) think that the defendant simply has to file a motion and can win merely by arguing (without submitting any evidence) that the plaintiff has no evidence and cannot win. Aguilar, thankfully, rejected that notion under California’s summary judgment statute.

Under Aguilar, the moving defendant has the initial burden to produce evidence – actual evidence – demonstrating one of two things. The defendant must either: (1) Demonstrate that the plaintiff not have, and cannot reasonably obtain, evidence in support of plaintiff’s claims; or (2) Submit affirmative evidence demonstrating that one or more of the elements of plaintiff’s action cannot be sustained or that there is a complete defense to the action. (Aguilar, 25 Cal.4th at p. 854.) Until defendant meets at least one of those prongs of the test, the burden never shifts to the plaintiff to produce evidence in opposition to the motion.

Prong 1: Make your discovery responses responsive

So, what does this mean in the real world? It means that a defendant can get summary judgment by demonstrating that your discovery responses are “factually devoid.” But a defendant’s burden under this prong will shift only if: (1) your discovery responses fail to set forth facts and identify evidence supporting the plaintiff’s allegations; and (2) the court can reasonably infer from the proffered discovery and responses that plaintiff is unable to produce any additional evidence. (Andrews v. Foster Wheeler LLC (2006) 138 Cal.App.4th 96, 102-103; Gulf Ins. Co. v. Berger, Kahn, Shafton, Moss, Figler, Simon & Gladstone (2000) 79 Cal.App.4th 114, 134; Scheiding v. Dinwiddie Construction Co. (1999) 69 Cal.App.4th 64, 71-72, 83.) And when deciding whether discovery responses are “factually devoid,” a court must not only assess both the direct and circumstantial evidence, but must also consider the reasonable inferences from that evidence. (Scheiding, 69 Cal.App.4th at p. 83; Weber v. John Crane, Inc. (2006) 143 Cal.App.4th 1433, 1439.)

The key to undercutting the defendant’s use of the first Aguilar prong is taking your discovery responses seriously. Boilerplate won’t cut it. (See, e.g., Andrews v. Foster Wheeler LLC (2006) 138 Cal.App.4th 96, 107 [“If plaintiffs respond to comprehensive interrogatories seeking all known facts with boilerplate answers that restate their allegations, or simply provide laundry lists of people and/or documents, the burden of production will almost certainly be shifted to them once defendants move for summary judgment and properly present plaintiffs’ factually devoid discovery responses.”]) Your responses should basically mimic an opening statement: What the evidence will show. You may not actually have the evidence in hand at that moment, but you should have a really good idea about where you’re going to get it (otherwise, why did you take the case?).

I know, I know. Trial lawyers like to play “hide the ball.” You don’t want to lay your case out in discovery (or, ironically, even in mediation sometimes). You want to keep your smoking gun to surprise the defendant at trial. I get that. I really do. But your smoking gun might as well be at the bottom of a lake if you can’t get past summary judgment. So be realistic.

A recent case, Ganoe v. Metalclad Insulation Corp. (2014) 227 Cal.App.4th 1577, discusses the distinction between a boilerplate discovery response that will shift the defendant’s burden on summary judgment and responses that will not: “Here, unlike in Andrews, the plaintiff’s amended response to the defendant’s ‘all facts’ interrogatories did not consist only of ‘boilerplate answers,’ ‘general allegations,’ and ‘laundry lists of people and/or documents.’ By contrast, the response contained ‘specific facts’ showing that [the defendant] had exposed [the plaintiff’s decedent] to asbestos ... Therefore, this response did not lead to an inference that the plaintiffs could not prove causation.”

This means that if your discovery responses are tailored to address the summary judgment burden, the defendant will be forced to submit affirmative evidence to overcome your cause of action or to establish its defense. It’s always easier to fight an enemy you can see than a ghost. Opposing a summary judgment motion based on the argument that you don’t have evidence is much tougher than coming up with concrete evidence to dispute the defendant’s concrete evidence; which is why defendants so often predicate their motions on the first prong.

In order to shift its burden under the first prong, the defendant has to demonstrate – through admissible evidence – that the plaintiff’s discovery responses are factually devoid, i.e., that the plaintiff has no evidence whatsoever to prove an element of the claim. But that’s not all. Aguilar also requires that the defendant demonstrate – through admissible evidence – that the plaintiff cannot reasonably obtain any such evidence. That’s much tougher for a defendant to do. In fact, if your discovery responses are fashioned in a way to demonstrate how you are going to prove your case, you’re halfway home.

Obviously, in order to provide bullet-proof discovery responses, you actually have to know some things. For example, just saying that the defendant’s person most qualified is expected to testify that “blah, blah, blah” (with the “blah, blah, blah” just being a rehash of your complaint allegations) sounds a lot like boilerplate. It’s better if you can at least identify the PMQ by name and specify the actual testimony you expect to get. Set out as much detail as you can. Show that you reasonably can obtain the evidence you need to prove your case.

There’s a little dance to all this. Defendants typically serve contention interrogatories early in the case, before you’ve done your own discovery. Your responses at that point in the case will necessarily be more general and will likely sound very much like your complaint allegations (i.e., boilerplate). But as you go through the discovery process, continually update your contention interrogatory responses as you accumulate more information. You don’t have to serve updated responses on the defense every week, or even every month. But do it regularly, as you obtain more evidence so that you foreclose the defendant’s ability to predicate a summary judgment motion on your weak, initial discovery responses. Is this a pain? Yes. Is it better than appealing the grant of a summary judgment motion? Definitely!

Prong 2: Overcoming defendant’s affirmative evidence

If you’ve done your due diligence in your discovery responses and thereby foreclosed defendant’s use of the first Aguilar prong, you force the defendant to produce affirmative evidence in its motion. As I said, it’s always easier to deal with that because, hopefully, you’ll have some affirmative evidence to counter it with.

One principle of summary judgment motion practice that is important to emphasize in your responsive papers is that the plaintiff’s evidence must be liberally construed and the defendant’s evidence must be narrowly construed. (Weber, 143 Cal.App.4th at p. 1438.) Similarly, ambiguous evidence must be construed in the plaintiff’s favor. (Ibid.) Best of all, this rule even applies to expert declarations. Thus, “in ruling on both the admissibility of expert testimony and its sufficiency to create a triable issue of fact,” the trial court must liberally construe your expert’s declaration and narrowly construe defendant’s. (Garrett v. Howmedica Osteonics Corp. (2013) 214 Cal.App.4th 173, 189; emphasis added.)

But don’t be casual about this. If the defendant produces affirmative evidence – even if it’s weak or patently unbelievable – the burden has still shifted to you and you must overcome it or you will lose the motion. Take it seriously. Respond with your own evidence – and if you need more time for discovery, go in ex-parte and ask for it under Code of Civil Procedure section 437c(h).

This highlights a very important discovery issue. By the time a summary judgment motion has been filed, your client’s deposition has usually been taken. If the defense attorney has not asked exactly the right questions to get exactly the right answers, don’t sit there smug in your belief that you can just submit a declaration in opposition to the summary judgment motion. Technically, you should not be barred under D’Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 22, from submitting your client’s declaration setting forth information that was not obtained in the deposition.

But courts these days aren’t really big on technicalities and if there is even a remote possibility that the court could construe the declaration as conflicting with the deposition testimony, assume it will be disregarded. So don’t take a chance: If there’s some information the defendant didn’t get in the deposition, you should follow up with your own questions at the end of the deposition to make sure the record is clear. At the very least, be sure the client corrects any misstatements or ambiguities during the statutory period for reviewing the deposition. Again, playing hide-the-ball is not in your client’s best interests.

Probably the most difficult issue to overcome on summary judgment is demonstrating a defendant’s intent. This comes up all the time in fraud cases and employment cases (i.e., discriminatory intent). (See, e.g., Union Bank v. Superior Court (1995) 31 Cal.App.4th 573; Horn v. Cushman & Wakefield Western, Inc. (1999) 72 Cal.App.4th 798.) Intent can seldom be proven by direct evidence and virtually always requires indirect or circumstantial evidence. (Riverisland Cold Storage, Inc. v. Fresno-Madera Production Credit Ass’n (2013) 55 Cal.4th 1169; Adams v. Young (1967) 255 Cal.App.2d 145, 154-155.) This issue depends on the context and is always fact-driven so it’s hard to give you general guidance. Just comb through the relevant cases and see what the courts look for, and then do that. Simple, right?

Speculation versus reasonable inference

The Ganoe decision is also very helpful for plaintiffs in helping trial courts distinguish between speculation and reasonable inference. Standard summary judgment principles mandate that a motion can be defeated even when it is based only on reasonable inferences derivable from the evidence. (Aguilar, at p. 856.)

Ganoe is an asbestos case and, as in virtually all asbestos cases, the issue on summary judgment was whether the plaintiff had been exposed to asbestos for which the defendant (an insulation company in this case) was responsible. The evidence in opposition to the summary judgment demonstrated that: the plaintiff’s decedent worked at Goodyear’s Los Angeles plant in 1974; the insulation on the steam pipes in the department he worked in had been removed in 1974 in order to install new equipment; the removed insulation was, more likely than not, asbestos-containing given the time period and the application; the insulation was removed by an outside contractor, although the only living witness could not recall who that was; and, so far as the witness knew, no other insulation in the plant had been removed by an outside contractor during 1974. The defendant also admitted that it did one job at that plant during 1974.

The defendant argued on summary judgment that because the Goodyear plant was so enormous and had literally miles of steam lines on which it could have done the work, plaintiff’s evidence showed, at most, only a “speculative possibility” that the job it did in 1974 was in the very department the decedent had worked in. The trial court agreed and granted summary judgment. The appellate court reversed, noting that the evidence supported a reasonable inference that the defendant had done the work in the department where the decedent worked and could show causation.

The point is that while the evidence also supported a reasonable inference that the contractor did insulation work in some other place in the plant during 1974, that is not controlling on summary judgment. Resolution of a conflict between two reasonable inferences is for the jury. This may be a critically important distinction to argue in your opposition, and you need to make sure you have the evidence to support it.


Don’t take summary judgment for granted. The risk is too great and you need to protect your client from the current trend toward granting them. Be careful and thoughtful.

Sharon J. Arkin Sharon J. Arkin

Sharon J. Arkin is the principal of The Arkin Law Firm. She has been certified by the California State Bar, Board of Legal Specialization as an appellate specialist since 2001. In 2011 Ms. Arkin received the CLAY award from California Lawyer magazine as an Appellate Attorney of the Year and in 2012 was named one of the Top 50 Women Attorneys in Southern California by Los Angeles Magazine. E-mail:

Shifting burdens, shifting sands

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