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The
Practical
Practitioner
Bill Daniels
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28
Advocate 28 (
July/August 2001)
Aguilar and the New Face
of Summary Judgment
Our Embattled
Right to Trial
By Jury
Winston
Churchill once
observed: "In
[its Twelfth
Century] origin
the jury was a
royal instrument
of
administrative
convenience: the
King had the
right to summon
a body of men to
bear witness
under oath about
the truth of any
question
concerning the
royal interest."
2 Churchill, A
History of the
English Speaking
Peoples, The
Birth of Britian:
The English
Common Law, at
217 (1956).
In 1787,
founding father
Alexander
Hamilton wrote
"The friends and
adversaries of
the plan of the
[constitutional]
convention, if
they agree in
nothing else,
concur at least
in the value
they set upon
the trial by
jury; or if
there is any
difference
between them it
consists in
this: the former
regard it as a
valuable
safeguard to
liberty; the
latter represent
it as the very
palladium of
free
government." The
Federalist No.
83, at 499
(Alexander
Hamilton)
(Clinton
Rossiter ed.,
1961). The term
"palladium"
comes from the
Greek and refers
to a statue of
the god Pallas,
whose
preservation was
believed to
ensure the
safety of Troy.
On June 15,
2001, the
California
Supreme Court
declared: "The
purpose of the
law of summary
judgment is to
provide courts
with a mechanism
to cut through
the parties'
pleadings in
order to
determine
whether, despite
they
allegations,
trial is in fact
necessary to
resolve their
dispute."
Aguilar v.
Atlantic
Richfield Co.
(2001) 25
Cal.4th 826 (Mosk,
J.).
So much for
palladiums of
free government.
Since March of
this year, our
Supreme Court
and the Court of
Appeal have
published four
important
opinions
redefining the
law of summary
judgment. In
reverse
chronological
order, they are:
Aguilar v.
Atlantic
Richfield Co.
(June 15, 2001);
Bahl v. Bank of
America (May 23,
2001) 107
Cal.Rptr.2d 270;
Krantz v. BT
Visual Images,
L.L.C. (May 18,
2001) 107
Cal.Rptr.2d 209;
and Basich v.
Allstate Ins.
Co. (March 16,
2001) 105
Cal.Rptr.2d 153.
Out of these
four opinions,
two are most
charitably
described as
anti-consumer,
anti-jury.
Aguilar, the
sole decision
from the Supreme
Court, is now
the controlling
law regarding
the burden of
bringing and
opposing summary
judgment in
California.
Basich stands
for the radical
proposition that
a party opposing
a motion for
summary
adjudication on
punitive damages
must meet the
same clear and
convincing
evidence
standard that
will apply at
trial.
On the other
hand, Bahl and
Krantz inject
some balance
back into the
equation. Bahl
holds that
strictly
adhering to the
technical
safeguards
incorporated
into Code of
Civil Procedure
section 437c "is
required to
ensure there is
no infringement
of a litigant's
hallowed right
to have a
dispute settled
by a jury or his
or her peers."
Krantz, for its
part, implies
that a summary
judgment is not
available to a
stonewalling
defendant. Both
decisions
suggest a
practical
counter to the
heightened
standards
imposed by
Aguilar and its
like-decided
brethren.
The message is
clear. As
consumer
attorneys, we
must once meet
the challenge by
adopting a fresh
approach to
preparing for
and defeating
summary
judgment. We
must do our
utmost to ensure
our clients may
seek justice
before a jury of
their peers.
Still, we must
be ever aware
that our
Twenty-First
Century judicial
system is
showing a
decided tilt
towards
practices once
exclusive to
Twelfth Century
kings.
Settling A
Decade Long
Debate.
Aguilar has its
roots in a
debate that has
raged in our
Court of Appeal
ever since the
Legislature
amended Section
437c in 1992 and
1993. As Krantz
explained in
discussing its
own summary
judgment
analysis four
weeks before the
Aguilar decision
was announced:
The question
before us . . .
implicates a
procedural
controversy
earnestly
debated within
the Court of
Appeal over the
past decade,
without defining
relief from our
high court. The
issue relates to
legislative
amendments made
in 1992 and 1993
to California's
summary judgment
statute — Code
of Civil
Procedure
section 437c.
More precisely,
the question
asks what is the
burden of proof
lying on a party
seeking summary
judgment when
that party does
not bear the
ultimate burden
of proof at
trial.
Aguilar, then,
is the "defining
relief" that the
Court of Appeal
has awaited for
almost a decade.
Indeed, not only
does the
decision explain
the burden of
proof lying on a
party who does
not bear the
burden at trial,
Aguilar
redefines the
entire summary
judgment process
in light of the
1992-1993
amendments,
while at the
same time
disapproving
entire lines of
authority that
our high court
has decided
"lack vitality"
in light of the
Legislative
change. The
decision also
spends time both
reconciling and
distinguishing
California
summary judgment
law with its
Federal
counterpart.
The full details
of the opinion
are best gleaned
by a careful
reading.
However, the
bottom line is
that consumer
attorneys must
now be fully
prepared to try
their cases on
paper if they
ever hope to
ever try their
cause before a
jury. That means
admissible
evidence
satisfying the
burden that the
plaintiff would
face at trial
with sufficient
weight to defeat
a motion for
non-suit or
directed
verdict. The
major difference
is in how the
burden is
described.
Rather than a
burden of proof,
the consumer
attorney
opposing summary
judgment must
satisfy a
"burden of
persuasion,"
sufficient to
persuade the
judge that the
matter must be
decided by a
jury.
Absent
admissible
evidence
satisfying the
burden of
persuasion,
which Aguilar
says "entails
the
"establishment"
through such
evidence of a
‘requisite
degree of
belief'" in the
judge's mind
that "a
reasonable trier
of fact [might]
find the
underlying fact
in favor of the
party opposing
the motion in
accordance with
the applicable
standard of
proof," your
client's right
to trial by jury
will be
checkmated by
procedural
convenience.
Meeting the
Burden of
Persuasion
One far reaching
impact of
Aguilar is the
announcement
that a party
opposing summary
judgment is now
unambiguously
charged with
presenting
evidence that
would, if
unopposed, be
sufficient to
defeat a motion
for nonsuit or
directed verdict
at trial.
This holding was
anticipated by
the Second
District Court
of Appeal in
Basich v.
Allstate Ins.
Co. (March 16,
2001), which
held that
summary
adjudication of
a punitive
damage claim may
be overcome only
by an opposition
presenting clear
and convincing
evidence of
malice,
oppression or
fraud. Aguilar
agrees with the
Basich holding,
stating:
How each party
may carry his
burden of
persuasion
and/or
production
depends on which
would bear what
burden of proof
at trial. Thus,
if a plaintiff
who would bear
the burden of
proof by a
preponderance of
evidence at
trial moves for
summary
judgment, he
must present
evidence that
would require a
reasonable trier
of fact to find
any underlying
material fact
more likely than
not.
Though the
burden is one of
persuasion
rather than
proof, as a
practical matter
this means that
it is no longer
sufficient to
show that there
are disputed
facts regarding
actionable
conduct that
will support a
punitive damage
claim. Rather,
the practitioner
must be prepared
to put forward
affirmative
evidence that a
reasonable trier
of fact might
rely upon in
making a
punitive award.
Since the
standard is one
of persuasion,
interpret that
as meaning
evidence
sufficient to
persuade the
judge that a
reasonable jury
could find in
your favor.
Gaining Access
to the Jury by
Invoking Section
437c(h)
In reviewing
Aguilar, it is
important to
remember that it
is authored by
the late Hon.
Stanley Mosk,
who was not only
a giant of
justice, but a
steady champion
of consumer
rights. Given
the high court's
present makeup,
Mosk's
authorship
should be a sign
that Aguilar is
not to be read
as a radical
shift in law,
but rather as a
pronouncement of
the state of
summary judgment
both in its
scope and its
limitations.
The limits of
summary judgment
are, of course,
defined by our
precious
constitutional
right to trial
by jury. Though
that right was
initially won
with blood and
conflict, it is
now seems
balanced on the
point of a pen.
Yet the rush to
judicial
expedience and
convenience has
not completely
overwhelmed the
jury right.
Bahl v. Bank of
America (May 23,
2001) 107
Cal.Rptr.2d 270
is direct and to
the point. In
reversing
summary judgment
where a trial
court granted
the motion
despite clear
stonewalling by
the defendant,
the Fourth
District Court
of Appeal held
that the jury
trial right
dictates strict
technical
compliance with
Code of Civil
Procedure
section 437c(h)
where there is a
showing that
facts essential
to justify
opposition to
summary
adjudication may
exist, even
where a party
may not have
been diligent in
its search.
Indeed, the
court in Bahl
held that it was
error not to
continue a trial
where there was
a positive
showing that
additional time
was necessary to
adequately
oppose summary
judgment,
declaring:
"Public policy
dictates that
disposition on
the merits be
favored over
judicial
efficiency."
Interestingly,
Bahl recites
that familiar
axiom that
"summary
judgment is a
drastic measure
which deprives
the losing party
of trial on the
merits," but
cites no current
Supreme Court
opinion as
authority.
Aguilar does not
comment on this
point, indeed,
nowhere is the
right to jury
trial discussed
in the opinion.
However, should
Bahl remain
citable
authority, it is
a powerful
counter to
summary judgment
proponents
rushing to choke
off your
clients' jury
trial right.
Joining with
Bahl in support
of the civil
jury is Krantz
v. BT Visual
Images, L.L.C.
(May 18, 2001)
107 Cal.Rptr.2d
209. The First
District Court
of Appeal in
Krantz reversed
summary judgment
where the motion
was supported
only by
conclusory
declarations and
where the moving
defendant had
engaged in
stonewall
tactics during
discovery.
In Krantz, the
defendant moved
for summary
judgment on the
grounds that the
plaintiff could
not prove it was
the alter ego of
another party.
The motion was
based only
conclusory
declarations by
three attorneys
and a company
executive
stating that the
alter ego and
agency
allegations were
untrue. The
plaintiff filed
an affidavit in
opposition to
summary judgment
asserting that
during
discovery, the
defendant "never
designated or
produced [an
affiant], never
designated or
produced anyone
who knew . . .
of the
relationship
between these
entities . . .
and never
produced any
documents
reflecting the
underlying facts
of [defendant's]
organization,
capitalization,
or other facts
that would be
probative on the
[alter ego]
issue." The
trial court
granted summary
judgment.
The appellate
court reversed.
It held that it
was
"unreasonable to
expect plaintiff
to rebut the
declarations
filed in support
of defendant's
motion for
summary judgment
on the question
of agency and
alter ego. These
issues, of
course, are not
ones that
plaintiff would
be expected to
have any
knowledge of."
The court
concluded:
It follows that
the moving
party's "simply
pointing to" the
absence of
evidence
supporting
plaintiff's
position is not
in itself enough
to obtain
summary judgment
in its favor.
There must be
some
"affirmative
showing" by the
moving defendant
that plaintiff
could not obtain
such evidence,
before summary
judgment would
be proper.
This notion of
an affirmative
showing that a
plaintiff is
unable to obtain
evidence as a
condition
precedent to
summary judgment
is echoed in by
Justice Mosk in
Aguilar.
The defendant
must show that
the plaintiff
does not possess
needed evidence,
because
otherwise the
plaintiff might
be able to
establish the
elements of the
cause of action;
the defendant
must also show
that the
plaintiff cannot
reasonably
obtain needed
evidence,
because the
plaintiff must
be allowed a
reasonable
opportunity to
oppose the
motion.
Or, as Bahl
explains: "[T]echnical
compliance with
the procedures
of Code of Civil
Procedure
section 437c is
required to
ensure there is
no infringement
of a litigant's
hallowed right
to have a
dispute settled
by a jury or his
or her peers."
Conclusion
Once again, for
consumer
attorneys the
world has
changed. A cause
that will find
its way to a
jury must first
be presentable
on paper in such
a fashion that
admissible
evidence to the
relevant burden
"of persuasion"
can be presented
to the trial
court.
The annals of
jurisprudence
are rife with
anecdotes of
jurists invading
the jury's
province. The
creeping cancer
of summary
judgment law is
a part of that
legacy.
Legislation is
pending in our
Legislature to
restore the
balance of
justice that
presently tilts
evermore in
favor of
institutional
patricians and
their property
interests and
away from
consumers and
the hard won
liberty
interests. As
consumer
attorneys, we
should all
vigorously
support the
efforts of the
Legislature to
protect our
right to jury
trial.
In the interim,
be forewarned.
If vigilance is
indeed freedom's
price, then we
must be ever
vigilant of our
clients' right
to trial by
jury.
The authors wish
to acknowledge
the following
Education
Committee
members who
assisted in
preparing these
articles: Steven
P. Goldberg,
Elizabeth A.
Hernandez,
Gerald C. MacRae,
Randy H.
McMurray, Debra
J. Wegman.
28
Advocate 28 (
July/August
2001)
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