Salinas v. Martin

Full title: STEPHEN SALINAS, Plaintiff and Appellant, v. PAOLO MARTIN, Defendant and…

Court: California Court of Appeals, First District, First Division

Date published: Sep 22, 2008

No. A119733 (Cal. Ct. App. Sep. 22, 2008)

Opinion

Page 1098b

166 Cal.App.4th 1098b __ Cal.Rptr.3d__ STEPHEN SALINAS, Plaintiff and Appellant, v. PAOLO MARTIN, Defendant and Respondent. A119733 California Court of Appeal, First District, First Division September 22, 2008

Contra Costa County Superior Court, Honorable Judith S. Craddick, Ct. No. MSC 06-01023

THE COURT:

It is ordered that the opinion filed herein on August 28, 2008 (166 Cal.App.4th 404;___Cal.Rptr.3d___), be modified in the following particulars, and the request for rehearing is DENIED:

1. On page 4, first full paragraph, lines 9-12 [166 Cal.App.4th 411, 1st full par., line 10], the sentence and supporting citations beginning with the words “To be entitled” are deleted and replaced with:

To obtain a summary judgment a defendant may conclusively negate an essential element of plaintiff’s action, but is not required to do so. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 853 [107 Cal.Rptr.2d 841, 24 P.3d 493]; Castillo v. Barrera (2007) 146 Cal.App.4th 1317, 1323 [53 Cal.Rptr.3d 494].) “Summary judgment in favor of the defendant will be upheld when the evidentiary submissions conclusively negate a necessary element of the plaintiff’s cause of action or show that under no hypothesis is there a material issue of fact requiring the process of a trial.” (Biscotti v. Yuba City Unified School Dist. (2007) 158 Cal.App.4th 554, 557–558 [69 Cal.Rptr.3d 825].)

There is no change in the judgment.

The petition for rehearing is denied.