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The California Supreme Court pulled the plug on a massive consumer class action against oil refiners Thursday with a long-awaited ruling clarifying when the burden of proof shifts in summary judgment motions. Justice Stanley Mosk said attorneys for plaintiff Theresa Aguilar and 24 million other gas consumers in the state presented evidence that was “at best ambiguous, as were the inferences” drawn from them. “We recognize that Aguilar did indeed present evidence that the petroleum companies may have possessed the motive, opportunity and means to enter into an unlawful conspiracy. But that is all. And that is not enough,” Mosk wrote for the unanimous court in Aguilar v. Atlantic Richfield, 01 C.D.O.S. 4903. The case has drawn a lot of attention — not only among consumers who have grown increasingly frustrated with gas price hikes but among lawyers who saw the case as an opportunity for the court to clarify state summary judgment law. The case took a turn the prior week, when plaintiffs’ attorneys told the high court that Fourth District Court of Appeal Justice Alex McDonald — who authored the appellate court’s opinion — owned stock and bonds in defendant Exxon Corp. worth more than $73,000. Mosk’s ruling affirmed McDonald’s decision, and made no mention of the conflict allegation. Aguilar alleged that oil refining companies in California shared information in an effort to limit the supply of cleaner-burning gas and drive up prices. Discovery in the case was extensive, with more than 100 depositions, 1,500 interrogatories, 135 requests for admissions and 900 requests yielding to the production of 500,000 documents. But Mosk’s decision Thursday didn’t belabor the particulars of this case, instead focusing on interpreting the effect of the 1992 and 1993 amendments aimed at bringing the standards for summary judgment in California more in line with those in federal courts. Mosk said the state rules are now the same as the federal ones in that a defendant doesn’t have to negate the plaintiffs’ case. Where the rules part ways is on what it takes to shift the burden of proof from the defendant to the plaintiff. Under federal law, all a defendant has to do to shift the burden is assert or argue that the plaintiff lacks evidence. “Summary judgment law in this state, however, continues to require a defendant moving for summary judgment to present evidence, and not simply point out through argument, that the plaintiff does not possess, and cannot reasonably obtain, needed evidence. In this particular at least, it still diverges from federal law,” Mosk said. Defense attorneys said the ruling finally clarifies the mechanism of burden shifting — a subject much debated ever since the amendments. Andrew Wolfe, a partner with Neilsen, Merksamer, Parrinello, Mueller & Naylor who represented the California Chamber of Commerce as amicus, said many courts have shied away from granting summary judgment in complex cases because they felt overwhelmed by information presented by a plaintiff. “You could have a situation where plaintiffs could bulldoze their way to trial simply by alleging a large and complex case,” said Wolfe. “What was needed was a willingness from the court’s part to really roll up its sleeves even in a complex case and ask, ‘Have the plaintiffs presented enough real evidence that a jury could find in its favor?’ “ Mosk also said the rules are the same for antitrust actions under the Cartwright Act. “We acknowledge that a plaintiff like Aguilar must often rely on inference rather than evidence since, usually, unlawful conspiracy is conceived in secrecy and lives its lives in the shadows,” Mosk wrote. “But, when he does so, he must all the same rely on an inference implying unlawful conspiracy more likely than permissible competition, either in itself or together with other inferences or evidence.” Charles Kagay, a partner with San Francisco’s Spiegel Liao & Kagay who argued for the plaintiffs, wrote a letter to the state high court earlier this month expressing concern that the decision was tainted. On Thursday, Kagay said he was disappointed the state high court followed McDonald’s reasoning but said he does not intend to pursue disciplinary action against McDonald. “I wasn’t going after Justice McDonald. We were just worried about the result here and wanted to make sure the Supreme Court was aware of the conflict,” Kagay said. “And we were hoping the supreme court wouldn’t rely on the Court of Appeal decision because it appeared to be tainted.” Mosk’s opinion repeatedly cites McDonald’s conclusions with approval. On Monday, the Utility Consumers’ Action Network announced it had written to the Commission on Judicial Performance requesting that McDonald be sanctioned for an ethical violation. While Kagay conceded that his suit on behalf of California’s gas consumers is dead, he said the issue may not be. “Even if the court now decided that these particular allegations brought by the Aguilar group won’t see the light of day, there’s still quite a bit of material to chew on,” Kagay said. “Someone else might look at it and decide there’s still something actionable there.”

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