So Long, Trial By Jury?—Eight legal professionals discuss the implications of 'Aguilar' on the use of summary judgment motions
Verdicts & Settlements
June 28, 2002 - In May, Verdicts & Settlements sat down with the following eight legal professionals to discuss the implications of Aguilar v. Atlantic Richfield, 25 Cal.4th 826 (2001), an antitrust unlawful conspiracy claim filed against nine petroleum companies. In reaching its decision, the California Supreme Court clarified the law trial courts must apply in ruling on summary judgment motions.
Thomas R. Freeman: Before Aguilar, actually before the amendments to [Code of Civil Procedure] Section 437c, there was a big difference between federal and California law.
Under federal law, at least as interpreted by the U.S. Supreme Court in the Celotex line of decisions [Celotex Corp. v. Catrett, 477 U.S. 317 (1986); Matsushita Elec. Industrial Co. v. Zenith Radio, 475 U.S. 574 (1986); Anderson v. Liberty Lobby Inc., 477 U.S. 242 (1986)], a defendant moving for summary judgment is permitted to make a motion based on the plaintiff's lack of evidence.
Under state law, Barnes v. Blue Haven Pools, [1 Cal.App.3d 123 (1969)], a defendant moving for summary judgment would have to affirmatively negate the plaintiff's case, which in some cases would be impossible because the defendant couldn't point to the plaintiff's evidence and say it was insufficient to support a judgment in the plaintiff's favor.
The Aguilar court determined that a defendant could make that type of an insufficient-evidence motion in state court.
Charles M. Kagay: I took up the cudgel on behalf of the plaintiffs somewhat reluctantly. It boiled down to three possible gradations:
One was that the defendant just has to say the plaintiff doesn't have any evidence; another was that the defendant has to prove the plaintiff doesn't have any evidence, using interrogatory answers, admissions or something similar; the final one was that the defendant has to make the affirmative case.
This third one was the law in California under Blue Haven Pools, which the Supreme Court never resolved. Aguilar used the middle version: The defendant doesn't have to make an affirmative case, but must use its own evidence to show the plaintiff can't make his case.
Craig J. de Recat: In Aguilar, Justice [Stanley] Mosk emphasized that not only does a moving defendant have to show that the plaintiff doesn't have any evidence but also to show that the plaintiff will be reasonably unable to obtain evidence, which puts a higher burden on the defendant moving for summary judgment.
Eric E. Younger: There are at least two levels of change in the legal system. One is the formalistic changes done by the Legislature and appellate courts. The other is the cultural changes.
Sometimes the two move together. Other things take longer for the cultural to catch up with the formal changes.
Does Aguilar mean that the era of aligning culture change with legal change is complete? Probably not. But how trial judges and appellate justices feel about summary judgment may be as big a deal as any of the formal level stuff. Justice Mosk certainly appeared to think so.
de Recat: It would be interesting to see if we agree what the standard is for summary judgment based upon Aguilar. I want to discuss what we think the courts are now going to do with this new standard and how it is going to impact a judge's reception to summary judgment. Is it going increase the chance of having a motion sustained, decrease it or not affect it at all?
Kevin O'Connell: My guess is that trial courts are going to warmly receive Aguilar. Given the impact of enormous caseloads, most judges are going to be tempted to grant a summary judgment motion when maybe they wouldn't if there were light caseloads. This was true for arbitration.
Raymond P. Boucher: I think Aguilar will have the greatest effect on complex litigation, where some courts may be intimidated by the case and the facts. Aguilar gives them an opportunity to grant summary judgments where they wouldn't before.
Younger: Aguilar won't have an enormous effect, largely because the cultural change is incomplete and because trial judges won't trust the Court of Appeal to uphold summary judgments.
Freeman: Since Union Bank [v. Superior Court, 31 Cal.4th 573 (1995)] recognized the new California summary judgment standard, trial judges have been more amenable to granting summary judgment compared to a couple years before when summary judgments were thought to be an automatic red flag on appeal.
Allan Ides: Before Celotex, federal court summary judgments were disfavored. One of the purposes of the Celotex trilogy was to change that culture. Federal courts are much more favorable to summary judgments.
In Aguilar, the California Supreme Court is saying, we want to be on board with that federal model. The decision, and commentary about it, are going to change the culture, in part because judges are going to be attracted to it. The notion of a six-month trial disposed of by summary judgment is going to be very attractive.
John G. Donhoff: Other than the clever way some of the propositions are stated, a lot of Aguilar is unremarkable.
The Aguilar court could have spent a little more time touching on some more interesting questions, like how much Matsushita, which is generally recognized to be almost entirely restricted to the antitrust context, applies to conspiracy cases outside of antitrust and other cases that present a battle of inferences.
de Recat: While Matsushita is clearly an antitrust conspiracy case, it does have considerable value in framing summary judgment debate.
What it was addressing, also addressed by Justice Mosk, is that when a court is considering the burden of persuasiveness, it must put it in the context of the law applicable to that particular case.
Matsushita talks about permissible inferences, what can be drawn from circumstantial evidence in the context of an antitrust conspiracy price-fixing case. Justice Mosk does a good job eventually getting to that discussion, building on Justice [Ming W.] Chin's concurring opinion in Guz v. Bechtel Nat'l Inc. [24 Cal.4th 317 (2000)], recognizing that it's almost impossible for a defendant to prove a negative.
Therefore, if an antitrust plaintiff plans to rely on circumstantial evidence, and if that evidence is as consistent with permissible legal conduct as it is with an illegal conspiracy, it will not be sufficient to support a claim of conspiracy.
So, you see, Matsushita does speak directly to one element of the summary judgment structure Justice Mosk addressed in Aguilar.
We all know the saying that good facts make good law. It's important to stay focused on the procedural history of Aguilar. The trial court initially granted summary judgment after approximately two years of discovery.
As Justice Mosk pointed out, the court considered more than 100 depositions, 1,500 interrogatories, 135 requests for admissions, 900 requests for production of documents and half a million pages of documents before reaching its conclusion.
Even by today's standards, it was an exhausting examination of the record after the trial court gave the plaintiffs free rein to conduct extensive and far-ranging discovery in hope of finding some direct or circumstantial evidence that would persuade a reasonable jury to believe, more likely than not, the plaintiffs' claims.
Donhoff: The Aguilar court cut no corners in its effort to understand federal law and how the federal Matsushita standard works in antitrust cases, but it didn't limit the decision to just antitrust cases.
Why does Matsushita talk about the plaintiff's burden of going forward with particular evidence that tends to exclude the possibility of independent action? It's because of the law and economics Chicago School doctrine popularized by Justice Robert Bork in the mid-1970s that the court became so enamored with at that time.
Justice Bork's primary point was that the more we try to enforce the antitrust laws the harder we make it for the economic system to work things out. I'm curious to see what use is going to be made now of this limiting rule of competing inferences - ambiguous evidence not being enough - other than in antitrust cases.
Freeman: The opinion seems to be clear that the permissibility of an inference in any given case will depend on the law.
In the context of an antitrust case, you cannot infer an illegal conspiracy based on evidence that is just as consistent with permissible competitive conduct as it is with illegal conduct because under antitrust law that type of a rule could chill pro-competitive conduct.
Aguilar says you have to look at what the substantive law is to determine whether the evidence being presented is sufficient to permit a judgment in the plaintiff's favor, just like you would on "substantial evidence" review after a case has gone to trial and is up for consideration on appeal.
O'Connell: There are two important antitrust concepts: The first is, do no harm. Our economy now is complex and delicate. Courts need to be careful when they interfere with it.
The second point, not isolated to antitrust, is that you've got to deal with reality. The Aguilar court picked this up. The California gasoline market is not what economists would call a perfectly competitive market. It is an oligopoly. From our standpoint, Justice Mosk's opinion handled the oligopoly issue very well.
Courts should look at reality and then apply the substantive law to it. And reality should prevail when courts decide a summary judgment motion. Aguilar is going to give that frame to summary judgment motions.
Boucher: I think Aguilar gives judicial advocates an opportunity to make a statement and to take away a case based on inferences. Judicial advocates won't necessarily approach a case by relying on the underlying law and how it applies to that particular case. Aguilar gives courts an opportunity to misread the decision for whatever purpose they want.
Donhoff: I'm not sure they would be misreading it. Good lawyers don't run away from bad facts. They just explain them well.
Aguilar presented bad facts in antitrust law, but, for example, the oligopoly argument was magnificent in turning that bad fact into something that became simple background information the court didn't let get in the way of its analysis of the issues.
On Page 24 of the opinion, the court writes about summary judgment generally "and specifically as to an antitrust action." The court's not saying just as to an antitrust action.
The court then makes the point that the defendants' motion for summary judgment must carry a burden of production. Ordinarily, a plaintiff would bear the burden by a preponderance of evidence at trial.
So, of course, it's tied back to the substantive law. A plaintiff must present evidence that would allow a reasonable trier of fact to find in his favor on the conspiracy issue by a preponderance of the evidence; that is, to find an unlawful conspiracy more likely than not.
Then the court says ambiguous evidence pointing to competing inferences is not enough. That's when the plaintiff must introduce evidence that would tend to exclude the possibility of nonconspiracy. The court didn't say, "This is just an antitrust rule." Antitrust is just the context it used to issue this summary judgment ruling.
Ides: That rule is essentially saying something obvious and simple: If the evidence is in equipoise - if you could interpret it one way or the other - the plaintiff hasn't met its burden, or can't meet its burden, because it's not more probably than not that there is a conspiracy.
The court is recognizing, in cases in which the evidence could be interpreted either way and there's no evidence to suggest that it should go another direction, that the plaintiff can't meet its burden. The court is signaling something very profound.
In 1938, when the Federal Rules of Civil Procedure were adopted, they are largely modeled on equity, which had few rules of weighing widespread joinder, no jury trials. Cases in equity were decided by affidavit. It seems to me that the modernizing of federal summary judgment law is a move back toward that equity model.
Aguilar is an invitation to move toward summary judgment as a replacement for the jury trial. It's a subtle move that started in federal courts.
This is the brave new world of litigation: litigation on paper. We are going to see more and more of this in California, particularly in complex cases where judges may not trust a jury.
Donhoff: What worries me about Aguilar is that it imports a rule, designed specifically to keep from juries cases with relatively high economic and transactional costs for defendants, into cases that may have significant consumer impact but do not pose the same degree of concern for the economy.
It generalizes antitrust enforcement policy to securities cases, contract cases, other kinds of cases where more than one individual is a defendant and a conspiracy is alleged.
O'Connell: I would hate to think that we were going to eliminate trial by jury. I have great, great faith in it.
England has eliminated trial by jury in civil cases. But that could be merely a reflection of the English class system, a way of taking trials away from ordinary people. That would be horrible here, and very different from our country's culture.
But it's important that judges and courts come to a case looking at it from the frame of the underlying law. Antitrust is going to be different from unemployment law.
In Reeves v. Sanderson Plumbing Products Inc., [530 U.S. 133 (2000)], an unemployment discrimination case, the court held that if an employer gave a reason for the dismissal that was determined to be a pretext, that was close to enough to escape summary judgment. So looking at a case from the framework of particular bodies of law makes sense.
Ides: What is the measurable distinction between a judge saying that the inferences that can be drawn from this evidence are equally balanced, and the judge weighing the evidence?
O'Connell: I think there's no question he's weighing the evidence.
Ides: Isn't that replacing a jury?
O'Connell: No. The test Aguilar gives the judge, which was what we argued, is that he's got to determine if there is sufficient evidence for a reasonable trier of fact to find that the defendant was guilty, liable or whatever.
We have a tendency to want things to be too precise. Aristotle said that you can only get an answer as precise as the subject matter itself is capable of being made.
In physics or mathematics, you can get a precise answer. In law, you can't. We have judges to weigh the evidence to determine if it is sufficient enough for a trier of fact - a reasonable jury - to find for the plaintiff.
Ides: No bright-line rule can define the difference between weighing the evidence and looking at it from a perspective of a reasonable trier of fact.
Both the U.S. and California Supreme Courts have now invited trial judges to act as juries - within a fairly limited realm - but asking them to be more active in looking at the evidence.
If the evidence could lead to equal inferences, summary judgment is granted. A judge could say, "I think the evidence favors the defendant a little bit more. I read it that way, and that's the way a reasonable jury will."
Kagay: I don't think Aguilar lets the judge take the place of the jury. I don't think the judge can grant summary judgment if there's one witness who gives testimony that indicates a conspiracy and another who gives testimony that does not indicate a conspiracy - or if 200 give evidence that indicates otherwise.
What Aguilar goes to is a situation where the judge looks at the evidence, there's a full range of implications from it, and that full range of implications still is not conspiracy. Then plaintiff is not able to prevail.
A lot of federal judges have looked at the part of Matsushita that says the alleged conspiracy was highly implausible and then taken from that the idea that the judge has to weigh the evidence and decide if the result is possible or not.
The Supreme Court tried to rein that in Eastman Kodak [Co. v. Image Technical Services Inc., 504 U.S. 451 (1992)] and wasn't terribly successful. The California Supreme Court very clearly made that distinction in the Footnote 25. It took that aspect of Matsushita completely aside and said that the implausibility language is inapposite.
We are talking about the garden-variety price fixing case here, not the notion that the trial court can weed out implausible cases. The trial court is not being invited to say "I believe" or "I don't believe" the plaintiff's case.
What the trial court is being told to do is look at the full range of implications of the plaintiff's evidence. And if that full range of implications still is not conspiracy, then the jury is not going to know and there's nothing to be tried.
But that's not the same thing as weighing evidence, deciding how much evidence is equitable. That's still the purview of the jury.
Freeman: Justice Mosk goes to great lengths to make clear that judges should not usurp the jury's role.
In essence, the trial judge sits in review of a summary judgment motion just like appellate justices review an appeal to see if there's substantial evidence to support the judgment.
It's an assessment of the evidence to determine whether that evidence permits, as a matter of law, a verdict in favor of the prevailing party. Justice Mosk, however, is emphasizing this point: Don't sit as juries would sit and weigh the evidence in determining which inference they find more plausible than not.
The judge has a very unique institutional role. Aguilar recognizes that assessing the sufficiency of evidence based upon the applicable substantive legal standard is a traditional judicial function.
That's different from substituting the judge for the jury. Aguilar should be appreciated for explaining some of these issues. An express purpose of the Aguilar decision is to explain the movement to the new federal burden and to justify it.
The court had previously announced the move to the new federal burden in Saelzler [v. Advanced Group 400, 25 Cal.4th 763 (2001)], but Aguilar is the opinion that justifies it and then tempers the new standard by explaining its foundations and limitations.
The real precursor to Aguilar is Justice Brennan's dissent in Celotex, in which he agreed with the plurality, but he used the same cautionary language adopted in Aguilar.
O'Connell: Getting back to the idea that judges are replacing juries, an idea I passionately dislike, there is the motion for new trial at which the judge has traditionally sat as the 13th juror. So this is not new.
Ides: I don't think it's new; rather, I think that the evolution of a summary judgment from disfavored to favored status is a move away from that idea that you can't take the case away from the jury.
The motion for a new trial and a motion for directed verdict used to be very controversial because you are taking the case away from the jury. Summary judgment is another way of taking a case away from a jury. I agree that equipoise does not mean merely conflicting witnesses.
I'm not saying this should happen, but it seems to me that trying cases on paper is as equally attractive as sending them to arbitration.
I think it's going to happen in close cases, complex cases. And part of it has to do with the Aristotelian point that you can't make a bright-line rule between weighing the evidence and saying what a reasonable jury would find. I'm looking at judges as realistically as I can, and usually the reasonable person is the reasonable person as envisioned by that judge.
Younger: When speaking to parties about settlement, I describe the so-called downtown jury effect. The difference the Rodney King beating made in jury behavior was dramatic. It made a large proportion of people involved in the day-to-day administration of justice a little scared of what juries may do.
Summary judgment and the move to trial on paper is an effort to put the brakes on a jury system that is encountering a fair degree of distrust.
de Recat: A court has to look at a case from the context of the real world situation. Judge Younger commented that some juries can't realistically be expected to come to the courtroom without some bias. If a party is a tobacco company, oil company or chemical company, it is unrealistic to think that you are not going to have bias in that jury.
To the question of whether judges are invading the purview of the jury in summary judgment motions, as they have already in directed verdicts, I say, yes. But it is not inappropriate and I think it's a reaction to the reality of the world in which we live, to jury biases and the technical complexities of some of these cases - complex product liability, chemical manufacturing and economic issues to name a few.
What I've wrestled with is the language in Footnote 4. "On the summary judgment, the moving party's burden is more properly labeled as one of persuasion rather than proof. That is because, in order to carry such burden, he must persuade the court that there is no material fact for a reasonable trier of fact to find, and not to prove any such fact to the satisfaction of the court itself as though it were sitting as the trier of fact."
I'm not quite sure what Justice Mosk meant, but it seems to be another example of the court serving the gatekeeper function, determining what will ultimately be allowed to go to the jury.
Analogous to this is Daubert [v. Merrell Dow Pharmaceuticals Inc., 509 U.S. 579 (1993)], which determined the judge must be the gatekeeper of what scientific expert opinions get in front of the jury because of the appropriate concern that courts must protect the judicial process - the court process and the jury process - to make sure it's a reasonably fair trial.
The court says time and time again, you can't just argue a point. You can't rely on unsupported inferences and artful conclusion to weave a tangled web of conspiracy or any other theme that a plaintiff's lawyer would want to advance. You have to present some evidence that would allow a reasonable trier of fact to reach that conclusion.
The court may call it a burden of persuasion in a summary judgment standard. Of course, I think there's an element of weighing evidence. However, we need judges to act as reasonable gatekeepers of what ultimately gets to a jury.
Raymond P. Boucher is a plaintiffs' lawyer and partner in Kiesel Boucher & Larson in Los Angeles.
Craig J. de Recat, who argued 'Aguilar' before the California Supreme Court for appellee-defendant Ultramar Inc., is a partner and national co-chair of the litigation and advocacy unit of Manatt, Phelps & Phillips.
John G. Donhoff, deputy attorney general in the Public Rights Division of the California attorney general's office who submitted an amicus brief in 'Aguilar.' (Donhoff's opinions expressed here do not necessarily represent those of the attorney general's office or its other employees.)
Thomas R. Freeman is managing partner of Los Angeles' Bird, Marella, Boxer & Wolpert and an expert on California summary judgment.
Allan Ides is a Loyola Law School professor and civil procedure expert.
Charles M. Kagay, who argued Aguilar before the California Supreme Court for the appellant-plaintiff, is a partner in Spiegel Liao & Kagay in San Francisco.
Kevin O'Connell is a partner at Mannatt, Phelps & Phillips who co-wrote the briefs for defendant Ultramar Inc. in 'Aguilar.'
Eric E. Younger is a private dispute resolution judge and retired Los Angeles Superior Court judge.
DAILY JOURNAL ARTICLE
© The Daily Journal Corporation. All rights reserved.
© 2013 Manatt, Phelps & Phillips, LLP. All rights reserved.