Union Bank v. Superior Court

1 All future statutory references are to the Code of Civil Procedure.

2 The respondent court granted the summary issue adjudication motion as to the cause of action for breach of fiduciary duty. The court determined that no fiduciary relationship existed between defendant, a lender exercising its rights to foreclose on a medical scanner, and the limited partners of a partnership defaulting on the payment of rent. There is no issue concerning the correctness of the respondent court’s order granting summary issue adjudication because no mandate petition has been filed by plaintiffs to set it aside. In any event, the respondent court was correct. No fiduciary relationship existed. (Kim v. Sumitomo Bank (1993) 17 Cal.App.4th 974 , 979 [ 21 Cal.Rptr.2d 834 ]; Peterson Development Co. v. Torrey Pines Bank (1991) 233 Cal.App.3d 103 , 119 [ 284 Cal.Rptr. 367 ]; Nymark v. Heart Fed. Savings & Loan Assn. (1991) 231 Cal.App.3d 1089 , 1093, fn. 1 [ 283 Cal.Rptr. 53 ]; Copesky v. Superior Court (1991) 229 Cal.App.3d 678 , 690 [ 280 Cal.Rptr. 338 ]; Price v. Wells Fargo Bank (1989) 213 Cal.App.3d 465 , 477 [ 261 Cal.Rptr. 735 ]; Mitsui Manufacturers Bank v. Superior Court (1989) 212 Cal.App.3d 726 , 732-733 [ 260 Cal.Rptr. 793 ]; Lawrence v. Bank of America (1985) 163 Cal.App.3d 431 , 437 [ 209 Cal.Rptr. 541 ].)

3 Plaintiffs had a duty to answer the form interrogatories as completely and straightforwardly as possible given the information available to them. Section 2030, subdivision (f)(1) requires interrogatory answers to meet the following standard of responsiveness: “Each answer in the response shall be as complete and straightforward as the information reasonably available to the responding party permits. If an interrogatory cannot be answered completely, it shall be answered to the extent possible.” The duty to truthfully and fully respond has been described as follows, “Parties must ‘state the truth, the whole truth, and nothing but the truth in answering written interrogatories’ [citation] . . . .” (Guzman v. General Motors Corp. (1984) 154 Cal.App.3d 438 , 442 [ 201 Cal.Rptr. 246 ]; Deyo v. Kilbourne (1978) 84 Cal.App.3d 771 , 783 [ 149 Cal.Rptr. 499 ].)

4 Section 2030, subdivision (m) states, “Without leave of court, a party may serve an amended answer to any interrogatory that contains information subsequently discovered, inadvertently omitted, or mistakenly stated in the initial interrogatory.” (See Civil Discovery Practice in Cal., supra, Interrogatories, § 8.82, p. 507.)

5 In 1969, at the time Barnes decision was filed, section 437c provided: “In superior courts and municipal courts if it is claimed the action has no merit, or that there is no defense to the action, on motion of either party, after notice of the time and place thereof in writing served on the other party at least 10 days before such motion, supported by affidavit of any person or persons having knowledge of the facts, the answer may be stricken out or the complaint may be dismissed and judgment may be entered, in the discretion of the court unless the other party, by affidavit or affidavits shall show such facts as may be deemed by the judge hearing *582 the motion sufficient to present a triable issue of fact. A judgment so entered is an appealable judgment as in other cases. The word ‘action’ as used in this section shall be construed to include all types of proceedings. The word ‘answer’ as used in this section shall be construed to include counterclaim and cross-complaint. The filing of a motion under this section shall not extend the time within which a party must otherwise file an answer, demurrer or motion to strike. [<! The affidavit or affidavits in support of the motion must contain facts sufficient to entitle plaintiff or defendant to a judgment in the action, and the facts stated therein shall be within the personal knowledge of the affiant, and shall be set forth with particularity, and each affidavit shall show affirmatively that affiant, if sworn as a witness, can testify competently thereto. [<j[] The affidavit or affidavits in opposition to said motion shall be made by the plaintiff or defendant, or by any other person having knowledge of the facts, and together shall set forth facts showing that the party has a good and substantial defense to the plaintiff’s action (or to a portion thereof) or that a good cause of action exists upon the merits. The facts stated in each affidavit shall be within the personal knowledge of the affiant, shall be set forth with particularity, and each affidavit shall show affirmatively that the affiant, if sworn as a witness, can testify competently thereto. When the party resisting the motion appears in a representative capacity, such as a trustee, guardian, executor, administrator, or receiver, then the affidavit in opposition by such representative may be made upon his information and belief. ['JO If it appear that such defense applies only to a part of the plaintiff’s claim, or that a good cause of action does not exist as to a part of the plaintiff’s claim, or that any part of a claim is admitted or any part of a defense is conceded, the court shall, by order, so declare, and the claim or defense shall be deemed established as to so much thereof as is by such order declared and the cause of action may be severed accordingly, and the action may proceed as to the issues remaining between the parties. No judgment shall be entered prior to the termination of such action but the judgment in such action shall, in addition to any matters determined in such action, award judgment as established by the proceedings herein provided for. A judgment entered under this section is an appealable judgment as in other cases.” (Stats. 1965, ch. 1877, § 1, pp. 4330-4331.)

6 The California Supreme Court never adopted the Barnes analysis that when a moving defendant relies on a plaintiff’s discovery responses to demonstrate there is no evidence an essential allegation in the complaint is provable, summary judgment may not be entered. We have been unable to find any case where the Supreme Court considered this precise issue.

7 The reference to Celotex Corp. v. Catrett (1986) 477 U.S. 317 , 322-328 [ 91 L.Ed.2d 265 , 273-277, 106 S.Ct. 2548 ] is of material consequence to the issue of whether Barnes v. Blue Haven Pools, supra, 1 Cal.App.3d at pages 126-128 survived intact the enactment of the 1992 and 1993 amendments to section 437c. In Celotex, after permitting a plaintiff time to utilize the discovery provisions of federal law, the defendant moved for summary judgment. The evidence relied upon by the defendant consisted of the plaintiff’s interrogatory answers. Those answers indicated that the plaintiff had no evidence linking the defendant’s allegedly defective product with the decedent. The United States Supreme Court held that the reliance on the interrogatory answers was sufficient to shift the burden of proof to the plaintiff to produce evidence of such exposure to the defective product. The United States Supreme Court held: “In our view, the plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial. In such a situation, there can be ‘no genuine issue as to any material fact,’ since a complete failure of proof concerning an essential element of a nonmoving party’s case necessarily renders all other facts immaterial. ... [^Q Of course, a party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of ‘the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,’ which it believes demonstrate the absence of a genuine issue of material fact. But unlike the Court of Appeals, we find no express or implied requirement in Rule 56 that the moving party support its motion with affidavits or other similar materials negating the opponent’s claim. On the contrary, Rule 56(c), which refers to *586 ‘the affidavits, if any’ (emphasis added), suggests the absence of such a requirement.” (Celotex Corp. v. Catrett, supra, 477 U.S. at pp. 322-323 [91 L.Ed.2d at pp. 273-274]; original italics.) Professor Charles Wright of the University of Texas synthesized the Celotex Corp. holding as follows, “Justice Rehnquist . . . suggested that the power of the court to enter summary judgment sua sponte supports the conclusion that the moving party . . . need not produce evidence, but simply can argue that there is an absence of evidence by which the nonmovant can prove his case.” (10A Wright, Federal Practice & Procedure (1994 supp.) § 2720, p. 10.) Simply stated, Barnes cannot be squared with Celotex Corp. If the Legislature intended to apply Celotex Corp. to a situation where a moving defendant relies upon the plaintiff’s inability to prove an essential element of the case, then Barnes has been legislatively overruled. As will be noted, we conclude Barnes is no longer of any legal vitality insofar as it would preclude defendant from securing a summary judgment in the present case given both the 1992 and 1993 amendments to section 437c.

8 When Assembly Bill No. 2616 was before the Legislature, the judicially declared rule was that a moving defendant had a duty to negate an essential element of an adversary’s cause of action. (See Molko v. Holy Spirit Assn. (1988) 46 Cal.3d 1092 , 1107 [ 252 Cal.Rptr. 122 , 762 P.2d 46 ]; Barnes v. Blue Haven Pools, supra, 1 Cal.App.3d at p. 127.) The fact that the Legislature chose not to utilize the term “negate” reflects an intention to change the *587 long-standing duty of a moving defendant. However, we expressly do not reach the issue in this case as to whether the Legislature in 1992 intended to adopt the Celotex Corp. test and, if so, to what extent. Rather, the sole issue before us relates to whether Barnes v. Blue Haven Pools, supra, 1 Cal.App.3d at pages 126-128, is a valid statement of California law. Our decision that Barnes is not to the extent it prevents a defendant from securing summary judgment based on a plaintiffs factually devoid discovery response is premised upon our reading of the statutory language and judicially noticed legislative history materials prepared in connection with both the 1992 and 1993 amendments to section 437c.

9 The only firm contradictory legislative history is a letter inserted in the Assembly Daily Journal dated September 8, 1993, by Assembly Member Peace, the sponsor of the 1992 amendment, which states: “It has come to my attention that there is some confusion as to the burden of proof allocated to parties on motions for summary judgment as a result of my AB 2616 chaptered last year. The allocation of the burden of proof pre AB 2616 is set forth in cases such as Chevron, U.S.A. v. Superior Court, (1992) 4 Cal.App.4th 544 [ 5 Cal.Rptr.2d 674 ] and Nymark v. Heart Federal Savings and Loan Association, (1991) 231 Cal.App.3d 1089 [ 283 Cal.Rptr. 53 ]. These decisions unfairly required plaintiffs not only to prove up their own case but to negate all affirmative defenses as well. [*50 AB 2616 adopted in a modified form the rule of Celotex Corp. v. Catrett, (1986) 477 U.S. 317 [ 91 L.Ed.2d 265 , 106 S.Ct. 2548 ] and overrode pre-existing California law by providing that a plaintiff may obtain a summary judgment if it proves up the allegations of its complaint. Post AB 2616, a plaintiff no longer has to negate affirmative defenses in order to obtain a summary judgment. [H AB 2616 did not change the applicable burden for a defendant to obtain a summary judgment. [<J0 Therefore, the suggestion that post AB 2616 a defendant can now meet its burden of proof simply by pointing out that the nonmoving party has no evidence, as is allegedly the case under Celotex, is simply not true. AB 2616 merely codified the already existing burden of proof for defendants without change. [<1 Earlier this year, the Governor signed into law AB 498 (Goldsmith-Peace), Chapter 276, Statutes of 1993, makes crystal clear that the intent behind AB 2616 was to provide that a plaintiff may obtain a summary judgment if it proves upon the allegations of its complaint. [*][] I trust that this puts to rest any questions as to the intent behind AB 2616 as to summary judgments.” (Assem. J. (1993-1994 Reg. Sess.) p. 4190.) We may not rely on the September 8, 1993, letter as a statement of legislative intent. The California Supreme Court has held that a letter printed on motion in the Senate or Assembly Journal is admissible on the issue of legislative intent under these circumstances: “ ‘In construing a statute we do not consider the motives or understandings of individual legislators *591 who cast their votes in favor of it. [Citations.] Nor do we carve an exception to this principle simply because the legislator whose motives are proffered actually authored the bill in controversy [citation]; no guarantee can issue that those who supported his proposal shared his view of its compass.’ [Citation.] A legislator’s statement is entitled to consideration, however, when it is a reiteration of legislative discussion and events leading to adoption of proposed amendments rather than merely an expression of personal opinion. [Citations.]. . . The statement of an individual legislator has also been accepted when it gave some indication of arguments made to the Legislature and was printed upon motion of the Legislature as a Tetter of legislative intent.’ [Citation.]” (California Teachers Assn. v. San Diego Community College Dist. (1981) 28 Cal.3d 692 , 699-701 [ 170 Cal.Rptr. 817 , 621 P.2d 856 ]; accord, Roberts v. City of Palmdale (1993) 5 Cal.4th 363 , 377 [ 20 Cal.Rptr.2d 330 , 853 P.2d 496 ]; Delaney v. Superior Court, supra, 50 Cal.3d at pp. 800-801, fn. 11.) For example, in the case of In re Marriage of Bouquet (1976) 16 Cal.3d 583 , 589-590 [ 128 Cal.Rptr. 427 , 546 P.2d 1371 ], the Supreme Court held that a letter printed in the Senate Journal on motion of a Senator as a “ Tetter of legislative intent’ ” could be considered in construing a statute for two reasons. First, the letter referred to debate which could illuminate the interpretation of the statute intended by the Legislature. Second, it was a letter of the author printed on motion in the Senate Journal. The Supreme Court required the letter refer to arguments presented to legislators before it could be considered. (California Teachers Assn. v. San Diego Community College Dist., supra, 28 Cal.3d at pp. 700-701; In re Marriage of Bouquet, supra, 16 Cal.3d at p. 590.) In the present case, the September 8, 1993, letter does not meet the standard of admissibility set forth in the foregoing California Supreme Court authority. The letter does not reflect the arguments presented to the legislators and hence, does not illuminate what was their intent. (Ibid.) Even if we were to consider it, we conclude that the September 8,1993, letter, written after the adoption of the 1993 amendment to section 437c, when weighed against the other evidence of legislative intent, is insufficient to support the conclusion that Barnes v. Blue Haven Pools, supra, 1 Cal.App.3d at pages 126-128, is still a valid statement of California law insofar as it prohibits a defendant from securing a summary judgment based upon a plaintiff’s factually incomplete discovery responses. The standard of review of a letter purporting to reflect legislative intent when it conflicts with other documents reflecting a different design was set forth by the California Supreme Court as follows: “To say that the letter [of legislative intent printed on motion in the Senate Journal] properly bears upon the issue of legislative intent is not to hold that it necessarily concludes that issue. In many cases the indicia of intent are in conflict, and the proper construction of the statute requires us to impute weight to expressions in accord with their probative value. Thus, a motion to print a letter of legislative intent commands less respect than a formal resolution of legislative intent. Likewise, an individual legislator’s recount of the argument preceding the passage of a bill probably merits less weight than extensive committee reports on the bill or a formal record of the legislative debates.” (In re Marriage of Bouquet, supra, 16 Cal.3d at pp. 590-591, italics added.) The point of the September 8, 1993, letter is that the holding of Celotex Corp. v. Catrett, supra, 477 U.S. at pages 322-326 [91 L.Ed.2d at pages 273-276], applies to a summary judgment motion filed by a plaintiff but not by a defendant. However, the extensive committee reports indicate the Legislature, as a result of the 1992 and 1993 legislation, intended to revise the law of summary judgment as it related to the burden of proof of both plaintiffs and defendants who are moving parties. The only evidence that indicates a defendant’s burden was unaffected by Assembly Bill No. 2616 is the vaguely worded Assembly report prepared after the Senate passed the legislation on August 27, 1992. However, that report: conflicts with the Senate analysis; insofar as it suggests a defendant must “negate” an element of the plaintiff’s case is at odds with the statutory language; misapplies the Celotex *592 Corp. opinion to a plaintiff’s summary judgment motion; and to the extent it infers in a somewhat uncertain manner that Celotex Corp. only applies to a plaintiff’s motion, the report is not corroborated by the Legislative Counsel’s Digest. (See Legis. Counsel’s Dig., Assem. Bill No. 2616 (1992-1993 Reg. Sess.) ch. 1348.) Of additional consequence is the letter to the Governor of Assembly Member Peace at the time of passage of Assembly Bill No. 2616 in 1993, requesting approval of the legislation, which states: “Finally, AB 2616 also revises the burden of proof on summary judgment motions to conform to Federal Rule of Civil Procedure 56. See: Celotex Corporation v. Catrett, (1986) 477 U.S. 317 [ 91 L.Ed.2d 265 , 106 S.Ct. 2548 ]. This should result in more motions being granted as summary judgment is a much more favored remedy in the federal courts.” (Letter of Assembly Member Peace to Governor Wilson dated Sept. 3, 1992.) No mention was made in the September 3, 1992, letter to the Governor that the Assembly Bill No. 2616 would only apply Celotex Corp. to a plaintiff’s summary judgment motion. Whatever uncertainty may have existed concerning the viability of Barnes v. Blue Haven Pools, supra, 1 Cal.App.3d at pages 126-128, as it related to a defendant relying on a plaintiff’s discovery responses, was resolved in 1993. Neither the Assembly nor Senate Committees on Judiciary reports indicated Celotex would apply to a plaintiff but not to a defendant. More critically, the committees were both reacting to a State Bar resolution calling for the legislative repeal of Barnes. (See Assem. Com. on Judiciary Rep. on Assem. Bill. No. 498, supra, pp. 1-2; Sen. Com. on Jud. Com. Rep. on Assem. Bill No. 498, supra, pp. 1-4.) The reports, as set forth in the body of this opinion, indicate that the purpose of the bill was to legislatively overrule Barnes and require a responding party to “set forth the specific facts showing that a triable issue of material fact exists as to that cause of action . . . .” (§ 437c, subd. (o)(2).) Accordingly, when we weigh all of the evidence concerning legislative intent, we conclude the Legislature, as a result of both the 1992 and 1993 legislation, intended to abrogate Barnes insofar as it prohibited a moving defendant from securing a summary judgment based upon factually inadequate discovery responses of a plaintiff. Respected California commentators are in accord with our analysis. (See, Weil & Brown, Cal. Practice Guide, supra, §§ 10:241-10:241.4, pp. 10-65-10-67.)