Shows how defense regularly fails its initial Aguilar burden on corporate attribution in California elder abuse MSJ — through blanket assertions with no evidence, or strawman declarations that address only two named executives while leaving the full universe of managing agents unaddressed.

How Defense Fails Its Own Corporate Attribution Burden in California Elder Abuse MSJ

The corporate attribution element is the one California elder abuse defendants fight hardest at MSJ. It is also the one where defense most commonly fails its own initial burden. From our review of California elder abuse MSJ practice, the plaintiff who audits the defense moving papers for the corporate attribution argument — before writing any substantive opposition — often finds that the burden never shifted at all.

The defense move. Defense takes one of two approaches on corporate attribution. The first is the blanket assertion: "Plaintiff has no evidence that any officer, director, or managing agent authorized or ratified the conduct at issue." Under Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 855, an assertion is not evidence. A moving party meets its initial MSJ burden by presenting evidence that conclusively negates a necessary element — not by arguing that plaintiff lacks evidence. The second approach is the strawman negation: defense submits declarations from two named executives — the CEO, the CFO, a Regional Vice President — stating that they were not personally involved in the decedent's care and did not authorize any act or omission. These declarations negate the involvement of the two declarants. They say nothing about any other officer, director, or managing agent.

What the rulings show. In a 2026 San Bernardino County Superior Court MSJ ruling (No. CIVRS2401232, 5/19/26), defense submitted declarations from two specific individuals establishing only that those two individuals were not involved in the decedent's bedside care. The court recognized the gap immediately: the declarations addressed whether those particular people participated in specific care, not whether any other managing agent in the corporate chain knew about the conditions and failed to act. In a 2026 Contra Costa County Superior Court MSJ ruling (No. MSC22-00100, 3/20/26), the court held that defense "had the burden-shifting backwards" — the managing-agent issue was not in the Separate Statement, no expert or lay declaration addressed the element, and no evidence on corporate attribution was presented. With no evidence on the element, the burden never shifted to plaintiff.

Your best move. Two steps before writing any substantive corporate attribution opposition.

Audit the defense moving papers for the corporate attribution argument. For each defendant, ask: Is there a Undisputed Material Fact in the Separate Statement that specifically addresses the corporate attribution element? Is there a declaration — from an expert or a fact witness — that actually goes to who held managing-agent authority, what they knew, and what they did or failed to do? If the answer to either question is no, make the Aguilar burden argument prominently in the opposition: defense did not meet its initial burden on this element, the burden never shifted to plaintiff, and summary judgment must be denied on corporate attribution before any other issue is reached. This is a clean procedural argument that requires no affirmative evidence from plaintiff.
If defense put up declarations, identify the strawman. White v. Ultramar, Inc. (1999) 21 Cal.4th 563 defines managing agent as an employee exercising substantial discretionary authority over significant aspects of the corporation's business — a standard broader than C-suite title. A national skilled nursing chain has Directors of Nursing, regional operations managers, and corporate compliance officers who exercise real authority over how facilities are run and may qualify as managing agents under the White v. Ultramar functional test. Declarations from the CEO and CFO do not negate managing-agent status for anyone else in that chain. Identify who else in the corporate structure could qualify as a managing agent, show the court that defense's declarations left the full universe of potential managing agents unaddressed, and then produce the evidence of those managing agents from the corporate attribution discovery taken in the case.

This article is for educational purposes only and is not legal advice. All frameworks and sample language should be reviewed by a licensed attorney and adapted to your particular client, case, and situation.