The trial court granted the motion for summary judgment filed by respondent Frank R. Pisaro and thereafter entered judgment dismissing the action brought by appellant Carl H. Brantley. We will reverse. We will conclude that a defendant moving for summary judgment (or summary adjudication) under Code of Civil Procedure
Appellant Carl H. Brantley filed his action for damages for personal injuries on July 16, 1993. Appellant's complaint contained a single cause of action for negligence. In relevant part, the complaint stated that on or about June 1, 1992: "while [appellant] was descending a stairway located at 5874 Arbolada Drive, LaGrange, California, the railing of the stairway pulled away from the wall to which it was attached, causing [him] to fall and sustain serious injuries."
On April 13, 1994, respondent filed and served a motion for summary judgment with supporting papers and argument. Respondent claimed appellant's lawsuit had no merit and there did not exist a triable issue of fact. Appellant filed papers in opposition to the motion.
The hearing on respondent's motion for summary judgment was held on August 8, 1994. The trial court granted the motion by written order on November 10, 1994. In its order, the trial court found in relevant part: "there are no facts which would support a disputed issue as to whether or not there was a dangerous or defective condition and that [respondent] either created the condition or had notice of that condition." The judgment from which appellant takes this appeal was entered on December 2, 1994.
Section 437c was amended in 1992 and 1993.
In Union Bank v. Superior Court, supra, 31 Cal.App.4th 573, the defendant backed its motion for summary judgment with the plaintiff's answers to requests to admit and interrogatories. (Id. at pp. 577-578.) The defendant's interrogatories asked the plaintiff to state all facts and to identify all witnesses and documents which supported the plaintiff's cause of action for fraud. (Id. at p. 578.) The plaintiff replied only that he "believe[d]" the defendant "knowingly and fraudulently" committed certain allegedly deceitful acts. (Ibid.)
The Court of Appeal held these "factually devoid" discovery responses were enough to meet the defendant's obligation under section 437c, subdivision (o)(2), to show "that one or more of the elements of the cause of action cannot be established." (Union Bank v. Superior Court, supra, 31 Cal. App.4th at p. 590.) Consequently, the burden had been shifted to the plaintiff to proffer admissible evidence which disclosed the existence of a triable factual issue about whether the defendant committed the alleged fraud. (Id. at p. 593.)
In addition, the phrase "cannot be established" was not new to section 437c in 1992. It first appeared in 1990, and was then placed in subdivision (f), which dealt only with motions for summary adjudication. (See City of Emeryville v. Superior Court (1991) 2 Cal.App.4th 21, 25 [2 Cal.Rptr.2d 826].)
Finally, the option of negating an element of the plaintiff's case is available to a moving defendant under Federal Rules of Civil Procedure, rule 56. (Celotex Corp. v. Catrett, supra, 477 U.S. at p. 327 [91 L.Ed.2d at p. 276]; First American Bank & Trust v. Texas Life Ins. Co. (5th Cir.1994) 10 F.3d 332, 334 ["Summary judgment should be granted where the moving party presents evidence which negates any essential element of the opposing party's claim or where any essential element is without factual support."]; see also Russell v. Acme-Evans Co. (7th Cir.1995) 51 F.3d 64, 67 [Defendant's motion supported by affidavits containing affirmative evidence establishing nondiscriminatory reasons for employment actions which gave rise to the plaintiff's action under 42 U.S.C. § 2000e et seq.]; see generally, Schwarzer et al., The Analysis and Decision of Summary Judgment Motions (1991) 139 F.R.D. 441, 478.)
Therefore, we conclude that a moving defendant now has two means by which to shift the burden of proof under subdivision (o)(2) of section 437c to the plaintiff to produce evidence creating a triable issue of fact. The defendant may rely upon factually insufficient discovery responses by the plaintiff to show that the plaintiff cannot establish an essential element of the cause of action sued upon. (Union Bank v. Superior Court, supra, 31 Cal. App.4th at p. 590.) Alternatively, the defendant may utilize the tried and true technique of negating ("disproving") an essential element of the plaintiff's cause of action. (Chevron U.S.A., Inc. v. Superior Court, supra, 4 Cal. App.4th at pp. 552-553.)
Our conclusion is implicitly confirmed by several recent California appellate opinions. In FSR Brokerage, Inc. v. Superior Court (1995) 35 Cal.App.4th 69, 73 [41 Cal.Rptr.2d 404], a personal injury and wrongful death action, the appellate court did not identify the nature of the evidence which supported the original motion but did note that other defendants who later joined in the motion relied upon a declaration to establish nonliability to the plaintiffs. (Id. at p. 71.) The appellate court held the moving defendants satisfied their burden of showing the plaintiff's claim could not "be established" by demonstrating through affirmative evidence that the defendants owed no duty to the plaintiffs or the decedents which could give rise to any liability as a matter of law. (Id. at p. 73.) Put another way, the defendant's evidence "disproved" an essential element of the plaintiff's cause of action for wrongful death — the existence of a duty owed the defendant. The plaintiff's failure to offer any evidence creating a triable issue of fact required affirmance of the trial court's order granting the defendants' motion. (Id. at pp. 73-75.)
Another example is Jambazian v. Borden (1994) 25 Cal.App.4th 836 [30 Cal.Rptr.2d 768], in which the plaintiff sued the defendant surgeon for
The Court of Appeal affirmed the judgment in favor of the defendant. The court found the defendant's properly qualified opinion evidence that the plaintiff was not diabetic was sufficient to prove the defendant had no duty to explain to the plaintiff the risks of surgery on a diabetic. The court therefore concluded the defendant had successfully shifted the burden of proof under section 437c to the plaintiff. (Jambazian v. Borden, supra, 25 Cal. App.4th at p. 846.)
In both FSR Brokerage, Inc. and Jambazian, the moving defendants did not rely upon factually insufficient discovery responses by the respective plaintiffs to demonstrate the plaintiffs could not establish the existence of a duty. The moving defendants rather relied upon affirmative evidence contained in declarations they supplied which proved just the opposite, that is, the absence of a duty.
Also of significance on this point is Villa v. McFerren, supra, 35 Cal. App.4th at page 749. In Villa, the plaintiff's cause of action was one for conspiracy between the defendant and the plaintiff's disability insurer. The defendant moved for summary judgment; in support of his motion he relied upon the plaintiff's deposition testimony that he was personally unaware of any communications between the defendant and the disability insurer. (Id. at p. 739.)
The appellate court held the defendant's evidence was inadequate to show that the plaintiff could not establish his claim and therefore the burden of
Villa is noteworthy for our purposes because the court made clear the deposition testimony relied upon by the defendant was inadequate to negate or disprove the alleged conspiracy as a matter of law. (Villa v. McFerren, supra, 35 Cal. App.4th at pp. 748-749.) According to the court, the plaintiff's "unawareness of communications which he or she would not have been present to observe" did not establish as a matter of law that no conspiracy existed. (Villa at p. 749.)
The task of resolving a defendant's motion for summary judgment will be facilitated by identifying at the outset the ground relied upon by the moving defendant. Is the defendant claiming the plaintiff cannot establish the cause of action pled (1) because the plaintiff's factually insufficient discovery responses demonstrate the plaintiff cannot prove an essential element of that cause of action; or (2) because the defendant's affirmative evidence discloses facts which negate the existence of an essential element of the plaintiff's claim by proving the contrary is true? If it is the latter, the court should evaluate defendant's evidence under the same strict standards which were held to apply to a defendant's attempt to disprove an element of the plaintiff's cause of action before the 1992 and 1993 amendments to section 437c, in order to avoid unjustly depriving the plaintiff of a trial. (See Molko v. Holy Spirit Assn. (1988) 46 Cal.3d 1092, 1107 [252 Cal.Rptr. 122, 762 P.2d 46]; Chevron U.S.A., Inc. v. Superior Court, supra, 4 Cal. App.4th at pp. 552-553; cf. Celotex Corp. v. Catrett, supra, 477 U.S. at p. 327 [91 L.Ed.2d at p. 276].)
We have compared the "separate statement" presented by respondent in support of his motion to the "response" submitted by appellant in opposition to the motion. With respect to those proposed undisputed facts which were challenged by appellant, we have made such adjustments in them as are necessary to accurately reflect the supporting evidence. (See fns. 13 & 14, post.) We have also accepted without question those of respondent's proposed undisputed facts which were not contested by appellant. (Hurley Construction Co. v. State Farm Fire & Casualty Co. (1992) 10 Cal.App.4th 533, 540-541 [12 Cal.Rptr.2d 629].)
From this comparison, we have determined the following constitute the "undisputed facts" relevant to whether respondent demonstrated as a matter of law that appellant's cause of action had no merit.
1. The subject accident occurred on or about June 1, 1992, at the premises located at 5874 Arbolada Drive, LaGrange, Tuolumne County, California.
2. Appellant entered into an oral agreement to lease the subject premises from the respondent.
3. There is one stairway which leads from the first floor to the second floor. There is one handrail which is attached to the stairway.
4. Prior to appellant's accident he did not notice anything about the handrail which he thought was unsafe. Appellant did notice slight movement in the handrail before the accident, but he was not concerned about this condition.
5. After appellant took possession, he had telephone conversations with the respondent and correspondence with the respondent by mail. Appellant
6. From the time appellant took possession of the residence and up until the time of his accident, appellant would use the stairway and subject handrail approximately three to four times a day. Although the stairway was steep, appellant was able to walk the stairway without necessarily using the handrail. There was also adequate lighting in the area of the stairway.
7. From the time appellant took possession and until the subject accident, neither respondent nor his agent had been inside the house.
8. The accident occurred in the evening after appellant had dinner and after he had gone up the stairs to watch television in his bedroom. Appellant did not notice anything unusual with regards to the handrail when he went up to his bedroom that evening. The accident occurred as he was in the process of going down the stairs to the kitchen to get something to drink.
9. As appellant was going down the stairs, he was holding onto the handrail with his hand gliding as he proceeded downward. When appellant got halfway down the stairs, the handrail came loose from its center anchor point causing him to fall down the stairs.
10. At the time he leased the premises to appellant, respondent was not aware of "any kind of problem with the stairway."
11. Appellant did not immediately contact respondent regarding the accident. He did not inform respondent until a couple of months following the accident when he wrote respondent a letter.
12. In October 1992, appellant corresponded with respondent once again discussing the accident and telling him that the handrail had given way. He advised respondent that he was surprised that the accident had happened because he had used the stairs many times and had no idea that the accident would happen. Otherwise, he would have made it a priority to fix it.
We fail to see how any of these circumstances, individually or collectively, demonstrate that the stairway was not defective and therefore that appellant cannot establish the stairway railing was defective. Just because appellant did not notice anything about the handrail which led him to believe it might have been defective does not prove there was no defect in the handrail. In addition, the prior uneventful use by appellant may mean only that the condition did not manifest itself at an earlier time. In Becker v. IRM Corp. (1985) 38 Cal.3d 454, 468-469 [213 Cal.Rptr. 213, 698 P.2d 116, 48 A.L.R.4th 601], there was no evidence of accidents involving shower doors with untempered glass prior to the breakage which injured the plaintiff, and there was nothing about the doors which would have alerted a "layperson" to the fact that a door was made of untempered glass. (Becker at p. 458.) In spite of these facts, the Supreme Court reversed the summary judgment in favor of the defendant on the plaintiff's negligence count. (Id. at p. 469.)
We do not mean to say the lack of any prior incident during appellant's tenancy is absolutely irrelevant to whether a defect existed in the handrail.
As support for his second contention — respondent did not have "actual or constructive knowledge" of the condition nor could he "discover it by the exercise of ordinary care" — respondent points to the undisputed facts that appellant used the stairway without incident for a considerable time prior to the accident, and that he (respondent) had no notice at any time of any problem of any kind with the stairway.
This evidence might well be enough to justify summary judgment for respondent with respect to a problem which came into being after appellant took possession of the apartment.
On the therefore critical question of when the purported dangerous condition involved in this action arose, respondent's undisputed facts say nothing. At most we know the accident occurred because the "handrail came loose from its center anchor point." However, respondent's undisputed facts include no evidence which even intimates whether the problem that led to the accident existed at the inception of the lease, whether respondent made any inspection prior to letting the home to appellant, or whether a reasonable inspection by respondent prior to appellant's occupancy would not have disclosed the condition.
In sum, the respondent's undisputed facts left open the possibility appellant could produce evidence at trial warranting a conclusion by the trier of fact that respondent was liable for appellant's injuries because a dangerous condition existed at the inception of the lease and respondent would have discovered it had he made a reasonable prelease inspection. Necessarily, then, respondent failed to demonstrate appellant's cause of action for negligence could not be established. (§ 437c, subd. (o)(2).)
Furthermore, because respondent failed to meet the burden of proof imposed upon him by section 437c, subdivision (o)(2), the obligation of demonstrating a triable issue of fact did not shift to appellant. In any event, we find nothing in the affirmative evidence supplied by appellant in opposition to the motion which cured the deficiencies in respondent's moving
It is unnecessary to address any other issue raised by appellant. We do note that appellant's claim he was entitled to proceed against respondent under a cause of action for strict liability (Becker v. IRM Corp., supra, 38 Cal.3d at p. 454) has been rejected by the Supreme Court in Peterson v. Superior Court, supra, 10 Cal.4th at page 1210.
A last comment. Contrary to what may be a widespread belief among the bench and bar of this district, we do not gleefully go about fabricating ad hoc, "technical" reasons to overturn every grant of summary judgment presented to this court for review. Section 437c is a complicated statute. There is little flexibility in the procedural imperatives of the section, and the issues raised by a motion for summary judgment (or summary adjudication) are pure questions of law. As a result, section 437c is unforgiving; a failure to comply with any one of its myriad requirements is likely to be fatal to the offending party.
Section 437c thus does not furnish the trial courts with a convenient procedural means, to which only "lip service" need be given, by which to clear the trial calendar of what may appear to be meritless or weak cases. (See Whitaker v. Coleman (5th Cir.1940) 115 F.2d 305, 307 [A "catch penny contrivance to take unwary litigants into its toils and deprive them of a trial"].) Any arbitrary disregard of the statutory commands in order to bring about a particular outcome raises procedural due process concerns. (Chevron U.S.A., Inc. v. Superior Court, supra, 4 Cal. App.4th at p. 553.) Motions for summary judgment cannot therefore properly be decided by employing a sort of detached "smell test." The success or failure of the motion must be determined, as we have done here, by application of the required step-by-step evaluation of the moving and opposing papers (Zuckerman v. Pacific Savings Bank, supra, 187 Cal.App.3d 1394, 1400-1401.) In that way, "due regard" will be given to the right of those persons asserting claims "that are adequately based in fact to have those claims ... tried to a jury" as well as to the "rights of persons opposing such claims ... to demonstrate in the manner provided by [section 437c] that the claims ... have no factual basis." (Celotex Corp. v. Catrett, supra, 477 U.S. at p. 327 [91 L.Ed.2d at p. 276].)
The judgment is reversed. Appellant is awarded his costs on appeal.
Stone (W. A), Acting P.J., and Harris, J., concurred.