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Raghavan v. Boeing Co.10/31/2005
al evidence. (See San Diego Watercrafts, Inc. v. Wells Fargo Bank, supra, 102 Cal.App.4th at p. 316 [due process requires that opposing party in summary judgment proceedings be fully advised of the issues to be addressed and be given adequate notice of what facts it must rebut in order to prevail].) In particular, Raghavan argues that he was not able to respond to defendants' evidence because the trial court required that the parties' supplemental papers be filed simultaneously.
But the trial court was willing to give Raghavan an opportunity to file responding papers. At the third and final hearing on the summary adjudication motion, the trial court offered to continue the hearing if Raghavan's counsel thought he could obtain additional evidence to oppose the motion. At the end of the hearing, the trial court offered to withhold a ruling for 10 calendar days so Raghavan's counsel could satisfy himself that "you have covered every possible base in terms of evidentiary documentation." The court asked, "Do you wish to take advantage of that?" Raghavan's counsel replied, "We would prefer not."
Finally, Raghavan argues that the filing of supplemental evidence violates the statutory deadlines that govern summary adjudication motions, namely, the requirement that the notice of motion and supporting papers be filed 75 days before the hearing. (See § 437c, subd. (a).) But the trial court, in its discretion, may consider such evidence. (See Weiss v. Chevron, U.S.A., Inc., supra, 204 Cal.App.3d at pp. 1098-1099; Johnson v. Banducci (1963) 212 Cal.App.2d 254, 259-260.)
2. Burden of Persuasion
Raghavan contends that, in ruling on the summary adjudication motion, the trial court reversed the burden of persuasion, required him to prove his case, and determined the strength of the evidence. Because he provides no record references for these propositions, we deem them waived. (See Duarte v. Chino Community Hospital (1999) 72 Cal.App.4th 849, 856.)
III. DISPOSITION
The order granting summary adjudication is affirmed. The judgment is reversed with respect to (1) plaintiff's cause of action for wrongful termination in violation of public policy against defendant Boeing Satellite Systems, Inc., and (2) any award of costs to that defendant, and that cause of action is remanded for a new trial. In all other respects, the judgment is affirmed. The parties are to bear their own costs on appeal.
I concur:
ROTHSCHILD, J.
VOGEL, J.
I concur, but write separately to emphasize three points.
First, summary adjudication of a cause of action must be (a) denied where the material facts are disputed, and (b) granted only when the undisputed facts establish the moving party's right to prevail as a matter of law. (§ 437c, subds. (c), (f)(1).) In either event, no facts are adjudicated (Soto v. State of California (1997) 56 Cal.App.4th 196, 199), which means an order granting summary adjudication could not support a statement by anyone that any facts had been decided or "established."
Second, section 437c expressly prohibits any comment by anybody (the trial court, the parties or a witness) about an order granting or denying a motion for summary adjudication. (§ 437c, subd. (n)(3).)
Third, the trial court's comments in this case (which were tantamount to a directed verdict) prove the wisdom of the legislative amendments making it clear that, when some but not all causes of action are disposed of by summary adjudication, the remaining causes of action are to proceed to trial on their own merits, unfettered by references to whatever orders the court may have made about other caus
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