ABIY ANBESSIE v. GREGORY NICHOLS, ET AL.

Case No.:  1-13-CV-244481

DATE:  September 2, 2014

TIME:  9:00 a.m.

DEPT.: 3

The Motion for Summary Judgment filed by Defendants Gregory and Iris Nichols (“Defendants”) is DENIED.

Contrary to Defendants’ apparent belief, no Cross-Complaint has been filed in this action.  The only operative pleading in this action is Plaintiff’s Complaint filed April 11, 2013.  The pleadings limit the issues presented for summary judgment and a motion for summary judgment cannot be granted or denied on issues not raised by the pleadings.  See Nieto v. Blue Shield of Calif. Life & Health Ins. (2010) 181 Cal App 4^th 60, 73 (“the pleadings determine the scope of relevant issues on a summary judgment motion.”).

The party moving for summary judgment bears the initial burden of production to make a prima facie showing that there are no triable issues of material fact.  Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4^th 826, 850.  Defendants’ motion fails to meet that burden.

“A defendant seeking summary judgment must show that at least one element of the plaintiff’s cause of action cannot be established, or that there is a complete defense to the cause of action.  …  The burden then shifts to the plaintiff to show there is a triable issue of material fact on that issue.”  Alex R. Thomas & Co. v. Mutual Service Casualty Ins. Co. (2002) 98 Cal.App.4^th 66, 72; internal citations omitted.

Defendants’ motion does not address the allegations in Plaintiff’s Complaint much less establish that there are no triable issues of material fact as to those allegations. Instead the motion makes assertions as to events that purportedly occurred in 2009.  The only authority cited as support for the motion is Federal Rule of Civil Procedure 56.  The federal rules have no application in a state court action.  Motions for Summary Judgment in California Courts are governed by Cal. Code of Civil Procedure (“CCP”) §437c.  Among other things CCP §437c requires that each motion for summary judgment be supported by a “separate statement setting forth plainly and concisely all material facts which the moving party contends are undisputed.”  CCP §437c(b)(1).  Defendants’ failure to file the required separate statement constitutes an additional ground for denial of the motion.