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SENATE BILL 476 -- Shifting the Burden of Proof in Summary Judgment Motions to the Defense
by Renée D. Wasserman and Alexis Morris
July 2001

Important Pending Legislation Concerning California's Summary Judgment Standard

If you are an employer or business that often finds itself in the position of a defendant bringing a summary judgment motion, you should know about this legislation. Senate Bill 476 ("SB 476") seeks to shift the burden of proof in summary judgment motions onto the defense to prove a claim has no merit. SB 476 recently passed the California State Senate and is currently pending in the Assembly Judiciary Committee. Passage of SB 476 would reverse the efforts made in the early 1990's to liberalize California's summary judgment laws by shifting the burden of proof in summary judgment motions to the defense. This legislation is sure to have a profound and costly effect on litigation in California.

California's Current Summary Judgment Standard

In 1992 and 1993, California amended its summary judgment statute to more closely reflect the federal standard governing burden of proof on summary judgment motions. California's current summary judgment rules require a defendant moving for summary judgment to show that an element of a cause of action cannot be established, or that there is a complete defense to the cause of action. The burden of proof then shifts to the plaintiff to produce specific, admissible evidence showing a triable issue of fact exists.

How Would SB 476 Change California's Summary Judgment Standard?

SB 476 removes the burden shifting language, effectively returning California's rules of summary judgment to its state prior to the 1992 and 1993 amendments. SB 476 requires the defendant moving for summary judgment to prove that a claim has no merit; the plaintiff is not required to make a prima facie showing that a triable issue of fact exists as to that cause of action or a defense thereto.

Such changes will likely drastically curb a court's ability to dismiss meritless claims. See Saelzler v. Advanced Group 400, 25 Cal. 4th 763 (May 31, 2001) (noting that California's summary judgment law prior to the 1992 and 1993 amendments which is similar to the standard proposed by SB 476 made it nearly impossible for a defendant to achieve summary judgment); see also Aguilar v. Atlantic Richfield Company, 2001 Cal. LEXIS 3758 (June 14, 2001) (noting that California's pre-amendment summary judgment laws imposed an "often impossibly high" standard to meet).

The bill also makes a virtually unprecedented change to appellate procedure by permitting parties to submit new evidence on appeal to reverse a summary judgment ruling. Such a process will unduly burden the appellate courts, and will allow meritless cases to linger in the court system.

If You Wish To Voice Your Opinion...

A variety of companies and associations have come out in opposition of SB 476, including California Grocers Association, California Retailers Association, California Chamber of Commerce, California Association of Health Facilities, California Manufacturers and Technology Association and Consulting Engineers and Land Surveyors of California, to name a few.

If you wish to voice your opinion on SB 476, contact:

Governor Gray Davis
State Capitol Building
Sacramento, CA 95814
Phone: 916.445.2841
Fax: 916.445.4633

Should you have any questions regarding SB 476 and its possible effects, please feel free to contact Alexis Morris at


The material contained in this newsletter is for informational purposes only and does not constitute legal advice. For specific advice, you are advised to contact your legal counsel.

2001 Rogers Joseph O'Donnell & Phillips
All Rights Reserved.

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