Appealing Summary Judgment In California

On appeal from a summary judgment, "we determine de novo whether an issue of material fact exists and whether the moving party was entitled to summary judgment as a matter of law. In other words, we must assume the role of the trial court and reassess the merits of the motion. In doing so, we will consider only the facts properly before the trial court at the time it ruled on the motion. " (Brantley v. Pisaro, supra, 42 Cal. App. 4th at p. 1601; see also Chaknova v. Wilbur-Ellis Co. (1999) 69 Cal. App. 4th 962, 967.) In this role, we do not decide the merits of the issues, but limit our review to "determining if 'there is evidence requiring the fact-weighing procedures of a trial...." (Pensinger v. Bowsmith, Inc. (1998) 60 Cal. App. 4th 709, 717.) Thus, we focus on issue finding; we do not resolve issues of fact. (Oliver v. County of Los Angeles (1998) 66 Cal. App. 4th 1397, 1403.) We review directly those papers submitted in connection with the motion (Hussey v. Operating Engineers Local Union No. 3 (1995) 35 Cal. App. 4th 1213, 1218), seeking "to find contradictions in the evidence, or in inferences reasonably deducible from the evidence, which raise a triable issue of material fact." (Oliver v. County of Los Angeles, supra, 66 Cal. App. 4th at p. 1403.) The opinion in Oliver v. County of Los Angeles, supra, 66 Cal. App. 4th at page 1403, includes language to the effect that the appellate court may affirm on a theory not raised by the moving party in the trial court and first addressed on appeal. We do not adopt this aspect of Oliver because it would appear to permit affirmance of a judgment against the opposing party based upon a ground as to which the opposing party was given no notice or opportunity to respond. (Compare Juge v. County of Sacramento (1993) 12 Cal. App. 4th 59, 69-71; see also Western Mutual Ins. Co. v. Yamamoto (1994) 29 Cal. App. 4th 1474, 1481.) The assessment of a motion for summary judgment involves the same three-step analysis applicable in the trial court. "'We first identify the issues framed by the pleadings, since it is these allegations to which the motion must respond." (Pensinger v. Bowsmith, Inc., supra, 60 Cal. App. 4th at pp. 717-718.) Second, we determine whether the moving party has met his or her burden of proof "by reliance on competent declarations, binding judicial admissions contained in the allegations of the [opposing party's pleadings], responses to discovery, and the testimony of witnesses at noticed depositions. (Code Civ. Proc., 437c, subd. (b); D'Amico v. Board of Medical Examiners (1974) 11 Cal. 3d 1, 20-21, 112 Cal. Rptr. 786, 520 P.2d 10;" (Sangster v. Paetkau (1998) 68 Cal. App. 4th 151, 162.) Third, we "'determine whether the opposition demonstrates the existence of a triable, material factual issue.'" (Saldana v. Globe-Weis Systems Co. (1991) 233 Cal. App. 3d 1505, 1513, 285 Cal. Rptr. 385.)