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Long Fish v. Nanotronics Corp.6/9/2003
ts exists but, instead,' must 'set forth the specific facts showing that a triable issue of material fact exists as to that cause of action or a defense thereto. The defendant . . . may not rely upon the mere allegations or denials' of his 'pleadings to show that a triable issue of material fact exists as to that cause of action or a defense thereto.' [Citation.]" (Id. at p. 849.)
Where the motion is brought by a defendant, the defendant will bear the burden of persuasion that "'one or more elements of'" the "'cause of action'" in question "'cannot be established,'" or that "'there is a complete defense'" thereto. (Aguilar, supra, 25 Cal.4th at p. 850, citing § 437c, subd. (o)(2).) In Aguilar the Supreme Court established that summary judgment law in California does not require a defendant conclusively negate an element of the plaintiff's cause of action. Rather, in accordance with federal law, "All that the defendant need do is to 'show that one or more elements of the cause of action . . . cannot be established' by the plaintiff. [Citation.] In other words, all that the defendant need do is to show that the plaintiff cannot establish at least one element of the cause of action - - for example, that the plaintiff cannot prove element X. Although he remains free to do so, the defendant need not himself conclusively negate any such element -- for example, himself prove not X." (Aguilar, supra, 25 Cal.4th at pp. 853-854, fns. omitted.)
In meeting its burden a defendant must present evidence, in the form of affidavits, declarations, admissions, answers to interrogatories, depositions, or matters of which judicial notice must be taken. (Aguilar, supra, 25 Cal.4th at p. 855; Code Civ. Proc., § 437c, subd. (b).) In addition to presenting evidence which negates an element of plaintiff's cause of action, " he defendant may also present evidence that the plaintiff does not possess, and cannot reasonably obtain, needed evidence -- as through admissions by the plaintiff following extensive discovery to the effect that he has discovered nothing." (Aguilar, supra, 25 Cal.App.4th at p. 855, fn. omitted.)
Once a defendant has met its burden of showing a cause of action has no merit, "'the burden shifts to the plaintiff . . . to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto. The plaintiff . . . may not rely upon the mere allegations or denials' of his 'pleadings to show that a triable issue of material fact exists but, instead,' must 'set forth the specific facts showing that a triable issue of material fact exists as to that cause of action or a defense thereto." (Aguilar, supra, 25 Cal.4th at p. 849.)
The plaintiff's burden in defeating a motion for summary judgment is only a burden of production and only a burden of making a prima facie showing of a triable issue of fact. (Aguilar, supra, 25 Cal.4th at p. 850.) "A prima facie showing is one that is sufficient to support the position of the party in question." (Id. at p. 851.)
In broadly outlining the law of summary judgment, the Supreme Court stated: "If a party moving for summary judgment in any action . . . would prevail at trial without submission of any issue of material fact to a trier of fact for determination, then he should prevail on summary judgment. In such a case . . . the 'court should grant' the motion 'and avoid a . . . trial' rendered 'useless' by non-suit or directed verdict or similar device." (Aguilar, supra, 25 Cal.4th at p. 855.)
With these procedural principles in mind, we turn to each of the Fish trust's three alternative theories of liability: Nanotronics's liability for breach of contract, Patriot's liability on the
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