Summary Judgment Burden Shifting
A motion for summary judgment is an assertion by the moving party that no triable issues of fact exist and therefore that the court should terminate the action without a trial. (Code Civ. Proc., 437c, subd. (c).)
A defendant moving for summary judgment bears the burden of showing the plaintiff's claims have no merit. (Ibid.)
The defendant does this either by demonstrating, through the plaintiff's discovery responses, that the plaintiff will be unable to prove his or her case at trial or by negating ("disproving"), through affirmative evidence, an essential element of each of the plaintiff's causes of action. (Brantley v. Pisaro (1996) 42 Cal. App. 4th 1591, 1598.)
If the defendant succeeds in meeting his or her substantive burden of proof, the burden then shifts to the plaintiff to come forward with evidence which counters the showing made by the defendant and creates a triable issue of material fact. (Ibid.)
If the plaintiff fails to satisfy this burden, the trial court must enter judgment in favor of the defendant. (Ibid.)
The party bringing and the party opposing a motion for summary judgment must produce admissible evidence to support his or her case; a party cannot rely upon claims or theories unsupported by hard evidence. (Arciniega v. Bank of San Bernardino, N.A. (1997) 52 Cal. App. 4th 213, 231; Rochlis v. Walt Disney Co. (1993) 19 Cal. App. 4th 201, 216 disapproved on other grounds in Turner v. Anheuser-Busch (1994) 7 Cal. 4th 1238, 876 P.2d 1022; see generally Weil & Brown, Cal. Practice Guide: Civil Procedure (The Rutter Group 1998) P 10:253.1, p. 10-94.)
Moreover, Code of Civil Procedure section 437c, subdivision (b), strictly requires the parties to identify all the material facts upon which they rely.
Consequently, the parties must include in their respective separate statements all the facts upon which the motion or the opposition is founded; the presence of a relevant fact elsewhere in the record is not enough.
As one court has put it, the "Golden Rule of Summary Adjudication" is that "if it is not set forth in the separate statement, it does not exist." (United Community Church v. Garcin (1991) 231 Cal. App. 3d 327, 337, 282 Cal. Rptr. 368.)
"Thus, when the 'fact' is not mentioned in the separate statement, it is irrelevant that such fact might be buried in the mound of paperwork filed with the court, because the statutory purposes are not furthered by unhighlighted facts." (North Coast Business Park v. Nielsen Construction Co. (1993) 17 Cal. App. 4th 22, 31.)
"'That the fact could have been found in the filed documents is of no value, because this would have imposed on the trial court the impossible burden of determining both the existence and significance of facts unmentioned by the parties.
We will not place on the trial court the burden of conducting a search for facts which counsel failed to bring out, nor can we attribute a level of prescience to the trial court which counsel lacked.
Instead, we adhere to the familiar rule that "possible theories not fully developed or factually presented to the trial court cannot create a 'triable issue' on appeal." (Artiglio v. General Electric Co. (1998) 61 Cal. App. 4th 830, 842.)