The opinion
TURNER, P. J., Concurring.
I concur in the judgment. I write separately to emphasize the extremely difficult nature of this case created by the concession in plaintiff’s separate statement of undisputed facts that there was no contract for a specified term. Plaintiff’s opposition separate statement can be read to explicitly admit there was no agreement for a “definite period of time.” Under virtually every conceivable set of circumstances, such a concession would require entry of summary judgment. As my colleagues aptly note, the duty to provide maintenance and cure requires payment of wages throughout the period of employment and disability. (The Osceola (1903) 189 U.S. 158, 175 [ 47 L.Ed. 760 , 23 S.Ct. 483 ]; Griffin v. Oceanic Contractors, Inc. (5th Cir. 1981) 664 F.2d 36, 39 .) Hence, if there is no period of employment during which plaintiff was unable to work, there was no duty to pay the unpaid wages sought in the third cause of action.
However, there is no binding concession concerning a period of employment in this very unusual case. The exact alleged undisputed fact posited in defendant’s separate statement is as follows: “3. Plaintiff did not sign ship’s articles, and on October 14, 2003, he was employed coastwise at Terminal Island, solely due to the PMA-ILWU Labor dispute and related lockdown of California ports. [Defendant] did not agree plaintiff would be employed coastwise for any definite period of time, as the time period which the strike would remain in effect necessarily remained uncertain.” To which, plaintiff responded, “Undisputed.” The only fair reading of this concession is that plaintiff agreed that there was no term of employment—an essential element of his maintenance and cure damages claim in the third cause of action. If *1043 that was all there was by way of plaintiff’s concession and the parties’ mutual assertion of facts, in my view, summary judgment would be the correct resolution of the case.
But the next alleged undisputed fact in defendant’s separate statement is challenged by plaintiff. Defendant’s next purported undisputed fact states; “4. The only written contract between [defendant] and [plaintiff’s union] governing plaintiff’s employment is a Union Collective Bargaining Agreement . . . .” Plaintiff disputed defendant’s claim that the collective bargaining agreement was the only agreement between the parties. Plaintiff responded: “Disputed. Plaintiff’s employment was also governed by a Memorandum of Understanding and [plaintiff’s union dispatch slip.” Plaintiff’s response cites as evidence a paragraph of his declaration which authenticates a copy of the union dispatch slip which expressly refers to a 90-day period of employment. I agree with my colleagues that the dispatch slip which refers to a 90-day time period creates a triable issue as to plaintiff’s right to maintenance and cure during the period of his disability and employment.
The problem though is what to make of the concession, probably inadvertent, that the only contractual understanding is the collective bargaining agreement which, in the final analysis, does not support the theory that there was a 90-day period of employment. The answer is found in Code of Civil Procedure section 437c, subdivision (c) which states in part: “The motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. In determining whether the papers show that there is no triable issue as to any material fact the court shall consider all of the evidence set forth in the papers, except that to which objections have been made and sustained by the court, and all inferences reasonably deducible from the evidence . . . .” (Italics added.) The Legislature requires all of the admissible evidence be considered. The Legislature has not provided that, as occurred in this case, the concession in a plaintiff’s separate statement be the basis of the entry of a summary judgment order when that acknowledgment is contradicted by evidence. The Legislature requires the judiciary to consider all of the evidence that is properly posited in summary judgment litigation. This conclusion is consistent with the analysis in Wright v. Stang Manufacturing Co. (1997) 54 Cal.App.4th 1218, 1235 [ 63 Cal.Rptr.2d 422 ] where facts pertinent to a product defect and causation were admitted but evidence indicated there was a triable controversy—a case that closely parallels this one.
No doubt, a trial court, as occurred here, is entitled to rely on a concession that an alleged undisputed fact is in fact so. But when as occurred here, a concession that a controlling alleged fact is undisputed is contradicted by *1044 evidence cited to in the opposition separate statement, the evidence controls the outcome of the summary judgment or adjudication motion. I would limit the discussion of the effect of the concession to the foregoing analysis. For the reasons I have cited, I agree with my colleagues that the judgment must be reversed.