No Evidence Approach

Under the "no evidence" approach, a defendant may satisfy its burden by demonstrating that plaintiff lacks the facts necessary to prove his case. ( Leslie G. v. Perry & Associates (1996) 43 Cal. App. 4th 472, 482; 216 Sutter Bay Associates v. County of Sutter (1997) 58 Cal. App. 4th 860, 875.) However, the no evidence approach requires more than merely suggesting the possibility that the plaintiff has no facts to support his case; it requires the movant to show plaintiff not only does not have, but cannot reasonably expect to obtain, evidence supporting a prima facie case. ( Hagen v. Hickenbottom (1995) 41 Cal. App. 4th 168, 186-188.) The burden shifts to plaintiff only when, based on the totality of the defendant's submissions, including the plaintiff's discovery responses, and plaintiff's submissions (Villa v. McFerren, supra, 35 Cal. App. 4th at p. 751), the defendant has shown the plaintiff has no evidence to support his or her claims and will not be able to locate or produce evidence supporting those claims. (Scheiding v. Dinwiddie Construction Co., supra, 69 Cal. App. 4th at pp. 74-84.) After the moving defendant has made a prima facie showing under either approach, the burden shifts to the plaintiff to produce competent evidence demonstrating that, on the issues as framed by the pleadings to which defendants' motion is directed, a triable issue of material fact exists. (FSR Brokerage, Inc. v. Superior Court (1995) 35 Cal. App. 4th 69, 73-74.) In assessing whether summary judgment is appropriate, the facts submitted by the party opposing summary judgment, together with the reasonable and permissible inferences that may be drawn therefrom, must be accepted as true. ( Sada v. Robert F. Kennedy Medical Center (1997) 56 Cal. App. 4th 138, 148.) A plaintiff may not defeat a summary judgment motion by producing evidence to support claims that are outside the issues framed by the pleading. ( Robinson v. Hewlett-Packard Corp. (1986) 183 Cal. App. 3d 1108, 1131-1132, 228 Cal. Rptr. 591; City of Hope Nat. Medical Center v. Superior Court (1992) 8 Cal. App. 4th 633, 639.) Inferences to raise triable issues of fact must be reasonable and cannot be based on "speculation, conjecture, imagination, or guesswork." ( Joseph E. Di Loreto, Inc. v. O'Neill (1991) 1 Cal. App. 4th 149, 161.) Because a plaintiff has the burden of proof by a preponderance of the evidence, the inferences he relies on to defeat summary judgment must satisfy the "more likely than not" burden that he will bear at trial. ( Leslie G. v. Perry & Associates, supra, 43 Cal. App. 4th at p. 487; Cf. Kidron v. Movie Acquisition Corp. (1995) 40 Cal. App. 4th 1571, 1580-1581 [grant of nonsuit proper when plaintiff's evidence does not support logical and reasonable inference in his favor and is nothing more than speculation or conjecture]; California Shoppers, Inc. v. Royal Globe Ins. Co. (1985) 175 Cal. App. 3d 1, 44-45, 221 Cal. Rptr. 171 [an inference may not be illogically and unreasonably drawn or be based on mere possibility or suspicion, imagination, speculation, supposition, surmise, conjecture or guesswork]; Salter v. Keller (1964) 224 Cal. App. 2d 126, 128, 36 Cal. Rptr. 430 [". . . it is incumbent upon the plaintiff to produce evidence which supports a logical inference in his favor and which does more than raise a mere conjecture or surmise that the fact is as alleged."].) Finally, as discussed below, substantive law may limit the inferences that may be drawn from ambiguous circumstantial evidence. (See pt. IV.B., post.)