GECC Financial Corp. v. Jaffarian

ACOBA, Judge,

concurring.

I agree that GECC, as the creditor, had the burden of proving that its disposition of repossessed collateral was conducted in a commercially reasonable manner and that the affidavits regarding the sale of the lease vehicles failed to establish disposition of the vehicles in such a manner. However, with all due respect to the majority, I do not see the desirability of requiring a plaintiff, moving for summary judgment, to “disprove every affirmative defense asserted against it” as part of its initial burden. See majority at 635 (citing Wright v. Fireman’s Fund Ins. Cos., 11 Cal.App.4th 998, 1011-12 , 14 Cal.Rptr.2d 588, 595 (1992); SAC Constr. Co. v. Eagle Nat’l Bank, 449 So.2d 301, 303 (Fla.Dist.Ct.App.1984). This requirement, which appears to be altogether new to our jurisdiction and based on California and Florida cases, appears to me to be counter-productive. 1

A party opposing summary judgment cannot rest on its pleadings if the moving party has satisfied its obligation of showing there is no genuine issue of material fact and it is entitled to a judgment as a matter of law. Miller v. Manuel, 9 Haw.App. 56, 65 , 828 P.2d 286, 292 (1991). In a practical sense, the movant’s burden amounts to establishing a prima facie case for relief. 10A C. Wright, A. Miller, & M. Kane, Federal Practice & Procedure: Civil § 2727, at 143 (2d ed. 1983). However, in situations where the moving party has failed to meet its burden, or its papers indicate that a genuine issue exists, the nonmoving party does not have to present affidavits or evidence countering the motion. Id. at 138-42. Thus, the nonmoving party does not have to respond to a summary judgment motion if the movant fails to meet its burden because the motion will only be granted by the court “if appropriate[.]” Hawaii Rules of Civil Procedure Rule 56(e). 2

*526 I believe we can validly assume that where the plaintiff moves for summary judgment, and properly establishes the lack of a genuine issue of material fact and its entitlement to a judgment as a matter of law, i.e. a prima facie case, and the defendant fails to respond, the trial court will have little difficulty in granting the plaintiffs motion even if the plaintiff does not disprove every affirmative defense raised by the defendant in its pleadings.

Placing an initial burden on the plaintiff to “disprove every affirmative defense 3 asserted against it” has several practical effects, none of which appear to me to be helpful in promoting the speedy and economical disposition of non-viable issues. First of all, the plaintiff will be put to the time and expense of initially disproving an issue on which the defense has the burden of proof at trial, but upon which such proof may ultimately be lacking. It would seem to me that in the allocation of burdens, the burden of producing materials regarding an affirmative defense in a summary judgment proceeding should be placed upon the defendant. If the defendant lacks such evidence then in all probability the defense will not be raised in opposition to the plaintiffs motion. If, on the other hand, there is evidence in support of the defense, what party is more suited to present the defense in all its permutations and contours than the defendant? If this task is left to the defendant, then the court and the plaintiff may be afforded the information essential to make a realistic appraisal of the defense, and the appropriate action to take — granting summary judgment or partial summary judgment, denial of the motion, or conceivably, the refinement of a subsequent motion for summary or partial summary judgment — will be evident.

We may reasonably expect that where affirmative defenses have been raised pro for-ma, they will, if not supported by evidence at the time of the plaintiffs motion, simply be abandoned. See K.M. Young & Assoc. v. Cieslik, 4 Haw.App. 657, 663-66 , 675 P.2d 793, 799-800 (1983) (affirming award of summary judgment where nonmoving party raised the affirmative defense of usury in its memorandum in opposition to the motion without showing facts which would establish the elements of usury). It is also conceivable that in establishing a prima facie case, the plaintiff will also expose weaknesses in certain defenses or affirmative defenses, which the defendant will then, for strategic reasons, discard. This newly added requirement, however, suggests to the plaintiff that before filing its motion for summary judgment, it must conduct an investigation and discovery of every affirmative defense raised, although, ultimately, it may turn out that such efforts were unnecessary. The prerequisite that the plaintiff “must ... disprove every affirmative defensé asserted against it” may be a harbinger of greater delay and expense.

The plaintiff should be obligated to disprove an affirmative defense in moving for summary judgment when, but only when, the defense produces material in support of an affirmative defense.

. In California, " '[w]hen the moving party is the plaintiff, the burden is to prove every element necessary to establish its right to the relief it seeks and to disprove every affirmative defense asserted against it.’ ” Wright v. Fireman’s Fund Ins. Cos., 11 Cal.App.4th 998, 1011-12 , 14 Cal.Rptr.2d 588, 595 (1992) (quoting United Community Church v. Garcin, 231 Cal.App.3d 327, 338 , 282 Cal.Rptr. 368, 376 (1991)). Florida courts require "that the movant must disprove or establish the legal insufficiency of an affirmative defense[.]” SAC Constr. Co. v. Eagle Nat’l Bank, 449 So.2d 301, 303 (Fla.Dist.Ct.App.1984).

. Hawai'i Rules of Civil Procedure (HRCP) Rule 56(e) reads in pertinent part:

When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts *526 showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.

. An affirmative defense is one that "will defeat [the] plaintiff’s claim if it is accepted by the court” and it "serves the purpose of giving the opposing party notice of the defense and an opportunity to argue why his [or her] claim should not be barred completely.” 5 C. Wright & A. Miller, Federal Practice and Procedure: Civil § 1270, at 414 (2d ed. 1990). Affirmative defenses must be pleaded under HRCP Rule 8(c) and the failure to do so may result in their waiver. Touche Ross Ltd. v. Filipek, 7 Haw.App. 473, 487 , 778 P.2d 721, 730 (1989). Generally, the defendant has the burden of proof on all affirmative defenses, which includes the burden of proving facts which are essential to the asserted defense. Carvalho v. Raybestos-Manhattan, Inc., 794 F.2d 454, 456 (9th Cir.1986), aff'd, 871 F.2d 891 (9th Cir.1988); Waterhouse Trust Co. v. Freitas, 33 Haw. 139, 148 (1933) (burden of proof remains with the parly which raised the defense to avoid liability); Rosa v. Johnston, 3 Haw.App. 420, 423 , 651 P.2d 1228, 1232 (1982) (accord and satisfaction an affirmative defense and party which raised it has the burden to prove such defense). Failure to raise an affirmative defense on the pleadings is immaterial if evidence of the defense is introduced and not objected to for failure to plead it, and no surprise is claimed. Godoy v. County of Hawaii, 44 Haw. 312, 322 , 354 P.2d 78, 83 (1960).