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Johnson v. Cahill Contractors4/25/2005
ent 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." (Id. at pp. 853-854, fns. omitted.)
Thus, Aguilar specifically refutes Johnson's contention that Cahill could only meet its initial burden of negating his cause of action against it under section 437c by coming forward with evidence that it was not the general contractor for the Tishman Building project when Johnson worked there. Instead, Aguilar recognizes that a moving party defendant can meet its initial burden either by coming forward with evidence negating a fact essential to the plaintiff's claim or by showing-using the plaintiff's own discovery responses-that plaintiff does not possess and cannot obtain evidence to establish that fact under the applicable burden of proof. (Aguilar, supra, 25 Cal.4th at pp. 854-855.) As stated in Union Bank v. Superior Court (1995) 31 Cal.App.4th 573, on a motion for summary judgment, the "moving defendant may rely on [the plaintiff's] factually devoid discovery responses to shift the burden of proof." (Id. at p. 590.)
Here, Cahill relied on Johnson's discovery responses revealing that the only evidence he had connecting Cahill to his asbestos exposures was his recollection that either Cahill or another entity was the general contractor for the Tishman Building construction project when he worked on it. Evidence of a mere possibility that Cahill was present at one of his workplaces is insufficient to create a triable issue of material fact. (See Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 781-782 [evidence that better security measures might have prevented assault]; McGonnell v. Kaiser Gypsum Co. (2002) 98 Cal.App.4th 1098, 1105 [evidence that plaintiff might have been exposed to asbestos in defendant's product]; Hunter v. Pacific Mechanical Corp. (1995) 37 Cal.App.4th 1282, 1289-1290, disapproved on other grounds in Aguilar, supra, 25 Cal.4th at p. 855, fn. 23 [evidence that defendant's employees might have been present at plaintiff's workplace during different time frames].)
In arguing that Cahill failed to meet its initial burden, Johnson stresses the following language from Aguilar: "The defendant must show that the plaintiff does not possess cannot reasonably obtain needed evidence, because the plaintiff must be allowed a reasonable opportunity to oppose the motion." (Aguilar, supra, 25 Cal.4th at p. 854.) According to Johnson, even if Cahill had shown that he did not currently possess evidence that Cahill was the general contractor for the Tishman Building, its moving papers failed to demonstrate that he could not reasonably obtain that evidence at a later time. Johnson points out that discovery was still open at the time the motion was brought. From this, Johnson reasons that Cahill could only exclude the possibility of his obtaining evidence in the future to support his claim by coming forward with its own evidence that it was not the general contractor for the Tishman project.
This argument is without merit. The summary judgment statute itself requires the moving party to bring its motion before discovery closes. If, whenever discovery was still open, the moving party could not rely on the opposing party's factually devoid discovery responses to shift the burden of production, the discussion of that alternative in Aguilera, Union Bank, and many other cases, would be entirely nugatory. The issue is not whether discovery is still open, but whether the party opposing summary judgment had ample opportunity before the motion was brought to assemble evidence in support of his claim. In this case, John
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