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Johnson v. Cahill Contractors4/25/2005
material factual issue." ' " (Saldana, supra, 233 Cal.App.3d at p. 1513, quoting Zuckerman v. Pacific Savings Bank (1986) 187 Cal.App.3d 1394, 1400-1401.)
For purposes of reviewing a motion for summary judgment, we do not consider evidence to which objections have been made and properly sustained. (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 334; Lopez v. Baca (2002) 98 Cal.App.4th 1008, 1014.) However, when the trial court fails to rule on evidentiary objections, the objections are generally deemed waived on appeal. (Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 670, fn. 1.) The waiver rule applies unless the party making the objection specifically requested a ruling at the hearing on the motion and further attempts to secure a ruling would have been fruitless. (City of Long Beach v. Farmers & Merchants Bank (2000) 81 Cal.App.4th 780, 784-785.) Even meritorious objections are deemed waived absent a specific request for a ruling in the trial court. (Ann M. v. Pacific Plaza Shopping Center, at p. 670, fn. 1.) When a trial court's evidentiary rulings are properly preserved for appellate review, we evaluate them for abuse of discretion. (Walker v. Countrywide Home Loans, Inc. (2002) 98 Cal.App.4th 1158, 1169.)
In deciding whether a material fact issue exists, we consider all of the properly admissible evidence and all of the inferences reasonably drawn therefrom. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843 (Aguilar).) We view such evidence in the light most favorable to the opposing party. (Ibid.) A triable issue of fact exists when the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof. (Id. at p. 850.)
B. Burden of Production
Both sides are in agreement that, for purposes of Cahill's summary judgment motion, the controlling factual issue framed by the pleadings is whether Cahill was the general contractor for the Tishman Building construction project during the 1973 to 1974 period when Johnson worked there. Johnson contends that Cahill could not shift the burden of producing evidence on this point to him under Code of Civil Procedure section 437c without Cahill itself coming forward in its moving papers with affirmative evidence that it was not the general contractor when Johnson worked in the Tishman Building. We are not persuaded.
For the type of summary judgment motion brought in this case, the parties' respective burdens are described in section 437c in relevant part as follows: "For purposes of a motion for summary judgment . . . [ ] . . . [ ] defendant . . . has met burden of showing that a cause of action has no merit if that party has shown that one or more elements of the cause of action . . . cannot be established . . . . Once the defendant . . . has met that burden, 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 . . . . The plaintiff . . . may not rely upon the mere allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to that cause of action . . . ." (Code Civ. Proc., ยง 437c, subd. (p)(2).)
Contrary to Johnson's contention, the summary judgment statute does not require a moving party defendant to "conclusively negate" an element of the plaintiff's cause of action. (Aguilar, supra, 25 Cal.4th at p. 853.) The Supreme Court in Aguilar explained: " ll that the defendant need do is to show that the plaintiff cannot establish at least one elem
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