California Code of Civil Procedure Section 437c Interpretation
In discussing the evolution of section 437c, the court in Villa v. McFerren (1995) 35 Cal. App. 4th 733 [41 Cal. Rptr. 2d 719], stated:
"It was a well-established rule under the pre-January 1, 1993, versions of section 437c that unless the moving party meets its burden, summary judgment could not be ordered, even though the opposing party has not responded sufficiently or at all.
Stated differently, in summary judgment litigation occurring prior to January 1, 1993, there was no obligation on the opposing party to show that a triable issue of material fact existed unless and until the moving party had met its burden.
Nothing in the language of the 1992 adoption of section 437c, subdivision (n)(2) amendments abrogates this well-established summary judgment requirement that the initial burden rests with the moving party.
In fact, the express statutory language places the burden on the moving defendant or cross-defendant.
Furthermore, we have carefully reviewed the legislative committee reports prepared in connection with the 1992 amendments to section 437c and there is no evidence of any legislative intent to modify the initial burden of proof which is allocated to the moving party. (See Union Bank v. Superior Court [(1995)] 31 Cal. App. 4th [573,] 584-585 [37 Cal. Rptr. 2d 653].)" ( Villa, supra, at pp. 743-744; see also FSR Brokerage, Inc. v. Superior Court (1995) 35 Cal. App. 4th 69, 73, fn. 4 [41 Cal. Rptr. 2d 404].)
Citing numerous out-of-state decisions, the Villa court noted that "The rule that the moving party is not entitled to a summary judgment unless and until it meets its burden, regardless of whether any opposing evidence is presented, is also recognized under many state statutes." (Villa v. McFerren, supra, 35 Cal. App. 4th at p. 746, fn. 7.)