Liberalizing Summary Adjudication: A Proposal

Despite their advantages, summary judgments are not granted frequently enough in state court proceedings. Denial of summary judgment motions may be due to overly stringent appellate standards, the reluctance of trial judges to be reversed, and insufficient supporting papers for such motions. The allocation of the burden of producing evidence in connection with a summary judgment motion is a fundamental aspect of the summary adjudication procedure which, however, seems to have gone unquestioned. The Commentary examines the effect that the allocation of the burden of proof has on the likelihood of success on a motion for summary judgment.

The author proposes a revision to the California Code of Civil Procedure that would shift the burden of producing evidence in a summary judgment motion to the party who will bear the burden of proof on that issue at trial. This revision would make summary adjudication more readily obtainable, while not impinging on the right to trial of disputed factual issues.