triable issue defense in California

1968(Eagle Oil & Refining Co. v. Pren *312 tice (1942) 19 Cal.2d 553, 556 [ 122 P.2d 264 ].) The issue to be determined by the trial court in consideration of a motion for summary judgment is whether or not any facts have been presented which give rise to a triable issue or defense, and not to pass upon or determine the true facts in the case.

1968(Eagle Oil & Refining Co. v. Pren *312 tice (1942) 19 Cal.2d 553, 556 [ 122 P.2d 264 ].) The issue to be determined by the trial court in consideration of a motion for summary judgment is whether or not any facts have been presented which give rise to a triable issue or defense, and not to pass upon or determine the true facts in the case.

1960The procedure, not one to try the issue but to determine whether there is one to be tried (Walsh v. Walsh, supra, 18 Cal.2d 439 [ 116 P.2d 62 ] ; Poochigian v. Layne, 120 Cal.App.2d 757 [ 261 P.2d 738 ] ; Family Service Agency of Santa Barbara v. Ames, 166 Cal.App.2d 344 [ 333 P.2d 142 ]) can be effective only in the disclosure of facts either giving rise to a triable issue or defense or revealing none exists.

1960The procedure, not one to try the issue but to determine whether there is one to be tried (Walsh v. Walsh, supra, 18 Cal.2d 439 [ 116 P.2d 62 ] ; Poochigian v. Layne, 120 Cal.App.2d 757 [ 261 P.2d 738 ] ; Family Service Agency of Santa Barbara v. Ames, 166 Cal.App.2d 344 [ 333 P.2d 142 ]) can be effective only in the disclosure of facts either giving rise to a triable issue or defense or revealing none exists.

1962The governing rule has been summarized by Mr. Justice Traynor in Coyne v. Krempels, 36 Cal.2d 257 [ 223 P.2d 244 ], at pages 260-261, as follows: ‘‘ The issue to be determined by the trial court in consideration of a motion [for summary judgment] is whether or not [plaintiff or] defendant has presented any facts which give rise to a triable issue or defense, and not to pass upon or determine the issue itself, that is, the true facts in the case. ’ [Citations.] Summary judgment for plaintiff is proper only if the affidavits in support of his motion state facts that, if proved, would be sufficie

1962The governing rule has been summarized by Mr. Justice Traynor in Coyne v. Krempels, 36 Cal.2d 257 [ 223 P.2d 244 ], at pages 260-261, as follows: ‘‘ The issue to be determined by the trial court in consideration of a motion [for summary judgment] is whether or not [plaintiff or] defendant has presented any facts which give rise to a triable issue or defense, and not to pass upon or determine the issue itself, that is, the true facts in the case. ’ [Citations.] Summary judgment for plaintiff is proper only if the affidavits in support of his motion state facts that, if proved, would be sufficie

1957Co. v. Prentice (1942), 19 Cal.2d 553, 555-556 [ 122 P.2d 264 ] : The issue to be determined by the trial court in ruling upon a motion for summary judgment is whether or not the party opposing the motion ‘has presented any facts which give rise to a triable issue or defense, and not to pass upon or determine the issue itself, that is, the true facts in the case. [Citations.] . . . [T]he better rule is that the facts alleged in the affidavits of the party against whom the motion is made must be accepted as true, and that such affidavits to be sufficient need not necessarily be composed wholly

1957Co. v. Prentice (1942), 19 Cal.2d 553, 555-556 [ 122 P.2d 264 ] : The issue to be determined by the trial court in ruling upon a motion for summary judgment is whether or not the party opposing the motion ‘has presented any facts which give rise to a triable issue or defense, and not to pass upon or determine the issue itself, that is, the true facts in the case. [Citations.] . . . [T]he better rule is that the facts alleged in the affidavits of the party against whom the motion is made must be accepted as true, and that such affidavits to be sufficient need not necessarily be composed wholly

1957Co. v. Prentice (1942), 19 Cal.2d 553, 555-556 [ 122 P.2d 264 ] : The issue to be determined by the trial court in ruling upon a motion for summary judgment is whether or not the party opposing the motion ‘has presented any facts which give rise to a triable issue or defense, and not to pass upon or determine the issue itself, that is, the true facts in the case. [Citations.] . . . [T]he better rule is that the facts alleged in the affidavits of the party against whom the motion is made must be accepted as true, and that such affidavits to be sufficient need not necessarily be composed wholly

1957Co. v. Prentice (1942), 19 Cal.2d 553, 555-556 [ 122 P.2d 264 ] : The issue to be determined by the trial court in ruling upon a motion for summary judgment is whether or not the party opposing the motion ‘has presented any facts which give rise to a triable issue or defense, and not to pass upon or determine the issue itself, that is, the true facts in the case. [Citations.] . . . [T]he better rule is that the facts alleged in the affidavits of the party against whom the motion is made must be accepted as true, and that such affidavits to be sufficient need not necessarily be composed wholly

1960The procedure, not one to try the issue but to determine whether there is one to be tried (Walsh v. Walsh, supra, 18 Cal.2d 439 [ 116 P.2d 62 ] ; Poochigian v. Layne, 120 Cal.App.2d 757 [ 261 P.2d 738 ] ; Family Service Agency of Santa Barbara v. Ames, 166 Cal.App.2d 344 [ 333 P.2d 142 ]) can be effective only in the disclosure of facts either giving rise to a triable issue or defense or revealing none exists.

1960The procedure, not one to try the issue but to determine whether there is one to be tried (Walsh v. Walsh, supra, 18 Cal.2d 439 [ 116 P.2d 62 ] ; Poochigian v. Layne, 120 Cal.App.2d 757 [ 261 P.2d 738 ] ; Family Service Agency of Santa Barbara v. Ames, 166 Cal.App.2d 344 [ 333 P.2d 142 ]) can be effective only in the disclosure of facts either giving rise to a triable issue or defense or revealing none exists.

1964The issue to be determined by the trial court in consideration of a motion for summary judgment is whether or not any facts have been presented which give rise to a triable issue or defense, and not to pass upon or determine the true facts in the case (Nini v. Culberg, 183 Cal.App.2d 657 at p. 661 [ 7 Cal.Rptr. 146 ]).

1964The issue to be determined by the trial court in consideration of a motion for summary judgment is whether or not any facts have been presented which give rise to a triable issue or defense, and not to pass upon or determine the true facts in the case (Nini v. Culberg, 183 Cal.App.2d 657 at p. 661 [ 7 Cal.Rptr. 146 ]).

1961Co. v. Prentice, 19 Cal.2d 553, 555 [ 122 P.2d 264 ] ; Gardner v. Jonathan Club. 35 Cal.2d 343, 347 [ 217 P.2d 961 ] ; Walsh v. Walsh, 18 Cal.2d 439, 441 [ 116 P.2d 62 ] ; United States Fidelity & Guaranty Co. v. Sullivan, 93 Cal.App.2d 559, 561 [ 209 P.2d 429 ].)'” (See also Buffalo Arms, Inc. v. Remler Co., 179 Cal.App.2d 700, 703 [ 4 Cal.Rptr. 103 ] ; Dudum v. City of San Mateo, 167 Cal.App.2d 593, 598 [ 334 P.2d 968 ].) Respondents argue that because appellant abandoned the appeal after the destruction of the building, she has no standing in court and no cause of action.

1961Co. v. Prentice, 19 Cal.2d 553, 555 [ 122 P.2d 264 ] ; Gardner v. Jonathan Club. 35 Cal.2d 343, 347 [ 217 P.2d 961 ] ; Walsh v. Walsh, 18 Cal.2d 439, 441 [ 116 P.2d 62 ] ; United States Fidelity & Guaranty Co. v. Sullivan, 93 Cal.App.2d 559, 561 [ 209 P.2d 429 ].)'” (See also Buffalo Arms, Inc. v. Remler Co., 179 Cal.App.2d 700, 703 [ 4 Cal.Rptr. 103 ] ; Dudum v. City of San Mateo, 167 Cal.App.2d 593, 598 [ 334 P.2d 968 ].) Respondents argue that because appellant abandoned the appeal after the destruction of the building, she has no standing in court and no cause of action.

2021(See Sargon Enterprises, Inc. v. University of Southern California (2012) 55 Cal.4th 747, 772 [“The trial 19 court’s gatekeeping role does not involve choosing between competing expert opinions.”].) Finally, disregarding Avrit’s declaration and using Blatchley’s measurements, we have found a triable issue whether the bar flooring was openly dangerous.

1967Co. v. Lee, 63 Cal.2d 147, 148 [ 45 Cal.Rptr. 316 , 403 P.2d 724 ] ; see also, Wilson v. Bittick, 63 Cal.2d 30, 34-35 [ 45 Cal.Rptr. 31 , 403 P.2d 159 ].) While it is true, as urged by respondent, that on a motion for summary judgment the trial court must determine if defendant has presented any facts by counterdeelaration which give rise to a triable issue or defense and defendant herein chose to put none of the facts set up in the supporting declarations in issue, summary judgment for plaintiff cannot be ordered, even though declaration for defendant bank be absent, unless the supporting dec

1967Co. v. Lee, 63 Cal.2d 147, 148 [ 45 Cal.Rptr. 316 , 403 P.2d 724 ] ; see also, Wilson v. Bittick, 63 Cal.2d 30, 34-35 [ 45 Cal.Rptr. 31 , 403 P.2d 159 ].) While it is true, as urged by respondent, that on a motion for summary judgment the trial court must determine if defendant has presented any facts by counterdeelaration which give rise to a triable issue or defense and defendant herein chose to put none of the facts set up in the supporting declarations in issue, summary judgment for plaintiff cannot be ordered, even though declaration for defendant bank be absent, unless the supporting dec

1967Co. v. Lee, 63 Cal.2d 147, 148 [ 45 Cal.Rptr. 316 , 403 P.2d 724 ] ; see also, Wilson v. Bittick, 63 Cal.2d 30, 34-35 [ 45 Cal.Rptr. 31 , 403 P.2d 159 ].) While it is true, as urged by respondent, that on a motion for summary judgment the trial court must determine if defendant has presented any facts by counterdeelaration which give rise to a triable issue or defense and defendant herein chose to put none of the facts set up in the supporting declarations in issue, summary judgment for plaintiff cannot be ordered, even though declaration for defendant bank be absent, unless the supporting dec

1967Co. v. Lee, 63 Cal.2d 147, 148 [ 45 Cal.Rptr. 316 , 403 P.2d 724 ] ; see also, Wilson v. Bittick, 63 Cal.2d 30, 34-35 [ 45 Cal.Rptr. 31 , 403 P.2d 159 ].) While it is true, as urged by respondent, that on a motion for summary judgment the trial court must determine if defendant has presented any facts by counterdeelaration which give rise to a triable issue or defense and defendant herein chose to put none of the facts set up in the supporting declarations in issue, summary judgment for plaintiff cannot be ordered, even though declaration for defendant bank be absent, unless the supporting dec

1963But, on the other hand, as we stated in Burke v. Hibernia Bank, 186 Cal.App.2d at page 744 [ 9 Cal.Rptr. 890 ]: “a summary judgment will stand if the supporting affidavits state facts sufficient to sustain a judgment and the counter affidavits do not proffer competent and sufficient evidence to present a triable issue of fact. . . .’ ” (de Echeguren v. de Echeguren (1962) 210 Cal.App.2d 141, 146-147 [ 26 Cal.Rptr. 562 ].) The facts in the affidavits “shall be set forth with particularity” (Code Civ.

1963But, on the other hand, as we stated in Burke v. Hibernia Bank, 186 Cal.App.2d at page 744 [ 9 Cal.Rptr. 890 ]: “a summary judgment will stand if the supporting affidavits state facts sufficient to sustain a judgment and the counter affidavits do not proffer competent and sufficient evidence to present a triable issue of fact. . . .’ ” (de Echeguren v. de Echeguren (1962) 210 Cal.App.2d 141, 146-147 [ 26 Cal.Rptr. 562 ].) The facts in the affidavits “shall be set forth with particularity” (Code Civ.

1962Co., Inc. v. Prentice, 19 Cal.2d 553, 555 [ 122 P.2d 264 ] ; Herbert v. Delphia, 189 Cal.App.2d 485, 489 [ 11 Cal.Rptr. 353 ].) Whether there exists a genuine issue as to any material fact must be determined from the affidavits.

1962Co., Inc. v. Prentice, 19 Cal.2d 553, 555 [ 122 P.2d 264 ] ; Herbert v. Delphia, 189 Cal.App.2d 485, 489 [ 11 Cal.Rptr. 353 ].) Whether there exists a genuine issue as to any material fact must be determined from the affidavits.

1961Co. v. Prentice, 19 Cal.2d 553, 555 [ 122 P.2d 264 ] ; Gardner v. Jonathan Club. 35 Cal.2d 343, 347 [ 217 P.2d 961 ] ; Walsh v. Walsh, 18 Cal.2d 439, 441 [ 116 P.2d 62 ] ; United States Fidelity & Guaranty Co. v. Sullivan, 93 Cal.App.2d 559, 561 [ 209 P.2d 429 ].)'” (See also Buffalo Arms, Inc. v. Remler Co., 179 Cal.App.2d 700, 703 [ 4 Cal.Rptr. 103 ] ; Dudum v. City of San Mateo, 167 Cal.App.2d 593, 598 [ 334 P.2d 968 ].) Respondents argue that because appellant abandoned the appeal after the destruction of the building, she has no standing in court and no cause of action.

1961Co. v. Prentice, 19 Cal.2d 553, 555 [ 122 P.2d 264 ] ; Gardner v. Jonathan Club. 35 Cal.2d 343, 347 [ 217 P.2d 961 ] ; Walsh v. Walsh, 18 Cal.2d 439, 441 [ 116 P.2d 62 ] ; United States Fidelity & Guaranty Co. v. Sullivan, 93 Cal.App.2d 559, 561 [ 209 P.2d 429 ].)'” (See also Buffalo Arms, Inc. v. Remler Co., 179 Cal.App.2d 700, 703 [ 4 Cal.Rptr. 103 ] ; Dudum v. City of San Mateo, 167 Cal.App.2d 593, 598 [ 334 P.2d 968 ].) Respondents argue that because appellant abandoned the appeal after the destruction of the building, she has no standing in court and no cause of action.