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A bill aimed at shifting the burden of proof in a summary judgment motion on to the defense cleared the full California Senate on Monday, just three days after the California Supreme Court voted 4-3 to solidify California’s current standards. SB 476, which skated through the Senate Judiciary Committee on a 5-2 vote and passed the full Senate 21-14, is one of a slew of bills backed by the Consumer Attorneys of California. Carried by Sen. Martha Escutia, D-Montebello, the legislation would require appellate courts to allow parties to submit supplemental briefs before a summary judgment motion could be affirmed. That’s a departure from existing law, which limits the appellate courts to the facts presented at trial. More importantly though, the bill would restore the summary judgment rules that were in place in California prior to 1992, forcing the defense to prove that a case is without merit. The bill is in sharp contrast to Friday’s California Supreme Court ruling in Saelzler v. Advanced Group 400, 01 C.D.O.S. 4399. In that case, the court found that once the burden of proof has shifted a plaintiff must produce specific evidence that a triable issue exists and a defendant must only prove that an element of a cause of action can’t be established. Lea-Ann Tratten, legal counsel for CAOC, says the bill simply requires the defense to negate a claim before it can be thrown out. Calling the Saelzler ruling “devastating,” she says the process as it exists today is very one-sided because defense attorneys can file for summary judgment with little risk while plaintiffs are required to prove a triable issue of fact. She says the legislation will require the defense to present evidence that a case is without merit, creating a more balanced system. “We’re not trying to eliminate the summary judgment process; we’re just going back to the 1992 law,” she said. CAOC president Bruce Broillet says the bill is aimed at countering frivolous motions for summary judgment. “We’re hoping this bill will restore balance to the summary judgment procedure in California,” he said. “We’re hoping it will restore to litigants a more secure feeling that they have a right to a trial by jury.” Defense attorneys on the other hand counter that the law will allow an increasing number of plaintiffs to get to a jury trial without producing any evidence and will up the ante on out-of-court settlements. Paul Grossman, a partner in the Los Angeles office of Paul, Hastings, Janofsky & Walker and general counsel for the California Employment Law Council, says the bill will reverse the fundamental public policy in California, which requires plaintiffs to prove they have a case. Grossman, who opposed the legislation, says the bill, if passed, will also place a tremendous burden on the court system, impose skyrocketing costs for the defense and create a huge disparity between state and federal summary judgment standards. He says requiring the defense to come forward with evidence to disprove a claim negates the most common basis for summary judgment. “It enhances the blackmail value of meritless lawsuits,” he says, adding, “It’s just crazyland.” Still, Grossman has little doubt that the bill will get through the Assembly and on to the desk of Gov. Gray Davis. “This will demonstrate whether the Democratic Party is totally controlled by the trial lawyers,” he says. He says it will also test whether Davis is the moderate he makes himself out to be. “If he signs this, his cover’s blown,” Grossman says.

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