*172 Opinion
Mаyme I. Hagen died in 1991, at the age of 96. Her two grandchildren, Michael and Amy Hagen, were her only surviving issue; her only child, John Hagen (the grandchildren’s father) had died in 1980. In 1988 the decedent had executed a revocable living trust, supplemented by a pour-over will, which gave almost all of her property to her cousin, Terry Hickenbottom, upon the death of the decedent. After the decedent died the grandchildren brought this action against Hickenbottom, individually and as trustee of the 1988 trust, to set aside the trust upon the theory that Hickenbottom had exercised undue influence over the decedent, and for damages. The trial court granted Hickenbottom’s motion for summary judgment, and entered a judgment awarding costs to Hickenbottom. The grandson, Michael Hagen, alone appeals; because the granddaughter, Amy Hagen, has not appealed, the judgment against her is final for all purposes.
Review of a summary judgment involves pure questions of law—the legal significance of the documents upon which the trial court acted—which we review independently.
(Saldana
v.
Globe-Weis Systems Co.
(1991)
The pleadings define the issues to which a summary judgment motion may, or need, be directed.
(Hejmadi
v.
AMFAC, Inc.
(1988)
The first count sought the traditional and essentially equitable remedy of annulment of the disposition of the decedent’s assets. In support of a prayer for a declaration that the trust was “the result of undue influence and lack of *173 capacity” and was “null and void in its entirety,” the grandchildren alleged that they were the decedent’s sole heirs and until 1988 had been her sole beneficiaries, that in 1988 Hickenbottom “began to exert undue influence over [the decedent], who was then over 90 years old and susceptible to undue influence by reason of age, infirmity and lack of caрacity,” that Hickenbottom gained control over the decedent’s “personal, business, and financial affairs,” induced her “to sever and discontinue relations” with the grandchildren, moved her from Santa Barbara to Santa Cruz where Hickenbottom lived, and caused her to execute the 1988 trust “pursuant to the terms of which [the grandchildren] received nothing from the estate of [the decedent], the provisions of which are unnatural, and which vary from [the decedent’s] prior expressed intentions. [Hickenbottom] maintained a confidential relationship with [the decedent], [was] active in the preparation of the trust, and unduly profited by its terms.”
The grandchildren’s second and third counts undertook to state tort claims for damages, but again the theories were based on the factual premise that Hickenbottom had unduly influenced the decedent.
The second count suggested a theory—recognized in several states but not previously validated in California—of intentional interference with an expected inheritance or gift. (Cf. generally, Annot., Liability in Damages for Interference with Expected Inheritance or Gift (1983)
The third count evoked an analogy to California’s tort of negligent interference with prospective economic advantage (cf.
J'Aire Corp.
v.
Gregory
(1979)
In this court Hickenbottom points out that the grandchildren’s pleading did not mention the pour-over will, complementary to the trust and executed on the same day, which provided among other things that if the trust were to fail or be revoked virtually all of the decedent’s estate would nevertheless pass to the trustee to be administered as provided in the trust instrument. In our view the omission is obviously an oversight which the grandchildren undoubtedly would have sought to remedy had the point been timely raised in the trial court. Therefore we shall rejeсt Hickenbottom’s argument that the omission moots the attack upon the trust as such, and shall treat the grandchildren’s theories as though addressed to both the trust and the pour-over will.
Hickenbottom moved for summary judgment or summary adjudication on multiple grounds, of which only her assertion that all of the grandchildren’s theories were “barred” by a privilege to speak the truth (or “defense of truth”) is relevant to the issues the parties have framed on appeal.
A defendant is entitled to summary judgment “if all the papers submitted show that there is no triable issue as to any material fact and that the [defendant] is entitled to a judgment as a matter of law” because “the action has no merit.” (Code Civ. Proc., § 437c, subds. (c), (a).) In 1993, when Hickenbottom’s motion was made, heard, and ruled on, Hickenbottom’s burden in support of her motion was to show “that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to that cause of action. Once the defendant . . . has met that burden, the burden shifts to the plaintiff ... to show that a triable issue of one or more material facts exists as to that cause of action.” (Code Civ. Proc., § 437c, former subd. (n)(2); Stats. 1992, ch. 1348, § 1.)
To bear her burden Hickenbottom submitted excerpts from transcripts of the depositions of the grandchildren, of their mother Maureen Hagen (who had been divorced from John Hagen in 1974), and of one of the decedent’s physicians, and copies of three letters—two from Maureen Hagen to the decedent and one from Maureen Hagen to Hickenbottom—which had been marked as deposition exhibits.
*175 The grandchildren interposed evidentiary objeсtions to many of the facts reflected in Hickenbottom’s showing, and several of these objections were discussed at hearing on Hickenbottom’s motion, but we find no indication in the record that the trial court ever formally ruled on any of the objections. Accordingly all the evidence Hickenbottom submitted was available for the trial court’s consideration (Code Civ. Proc., § 437c, subd. (c)) and is available for ours.
Hickenbottom showed, directly or by rational inference, the following facts pertinent to the issues before us:
The granddaughter had been adopted by John and Maureen Hagen. Sometime before 1982, the decedent omitted the granddaughter from her will, apparently because the granddaughter was not her natural issue, and the decedent did not thereafter make significant provision for the granddaughter.
The grandson graduated from high sсhool in the spring of 1987. During his senior year in high school he became involved with drugs; in August 1987, following his graduation, he sought treatment in a rehabilitation program. Also during his senior year in high school the grandson impregnated his girlfriend and then paid for her to have an abortion. The grandson and the decedent were both Catholic, and although the grandson considered himself close to the decedent he did not want the decedent to know about the abortion because “[i]t would place a negative impression of me . . .in her mind.” He was concerned that the decedent would “not be . . . forgiving . . . .” He “didn’t find what was the use of my grandmother knowing. And I felt it would be very harmful to my grandmother ... to know of that issue.” Nor did the grandson tell the decedent about the drug rehabilitation program; he explained that “it was a very confidential issue. I didn’t feel she —it wouldn’t—I didn’t want to tell her, tell your grandmother.” In Septеmber 1989 the grandson called Hickenbottom who told him that “my grandmother was disappointed in me because I was using drugs”; Hickenbottom acknowledged to the grandson that Hickenbottom had told the decedent about the 1987 drug episode, because (according to the grandson) Hickenbottom “felt my grandmother needed to know.” The grandson assumed that Hickenbottom had also told the decedent about the abortion.
In this same September 1989 conversation Hickenbottom made statements which led the grandson to believe that the decedent’s estate would go to Hickenbottom rather than to the grandson.
The granddaughter did not believe that Hickenbottom lied to the decedent about “the adoption issue,” and she acknowledged that the decedent had *176 known the granddaughter was adopted “without having to be told . . . The grandson could not sаy that Hickenbottom had told the decedent anything that was not true about the abortion, and the granddaughter testified that she did not believe Hickenbottom lied to the decedent about the grandson’s drug rehabilitation program. Maureen Hagen testified that it was not her opinion that Hickenbottom “harbored an evil or malicious intent toward” the grandchildren.
Dr. White testified he had not noticed a deterioration in the decedent’s mental skills or capacity up to the month, March 1988, in which she executed the trust and pour-over will. The granddaughter never observed the decedent “being weak of mind or unable to make decisions, unable to speak her mind, anything like that.”
In early September 1989, some 18 months after the decedent executed the trust and pour-over will, Hickenbottom moved the decedent from her longtime home in Santa Barbara to an apartment in Santa Cruz near where Hickenbottom lived and worked.
Hickenbottom had visited the decedent, in Santa Barbara, since 1979 or 1980, and at some point the decedent had given Hickenbottom her power of attorney. The granddaughter testified that beginning shortly before the decedent moved to Santa Cruz the granddaughter had “started having . . . feelings of wrongdoing” based on “[t]he frequency of [Hickenbottom’s] visits to [the decedent]” and “the couple times that I had called and [Hickenbottom], perhaps, was evasive in letting me talk to my grandmother” in that “[t]here were times when I called my grandmother, and for some reason or excuse I was unable to talk to her.”
Dr. White’s notes reflected that in August 1989 he had seen the decedent for complaints of back pain, and it appeared that the decedent had not been taking her medicаtion on a regular basis; there had also been a complaint of incontinence. According to Dr. White he had spoken by telephone with Hickenbottom, who was “ ‘[concerned that patient’s health is deteriorating, and that she is no longer able to care for her own needs’ ” and who “ ‘[w]ould like to have patient closer to her.’ ” Dr. White recommended that the decedent “find a place near [Hickenbottom] . . . for . . . closer supervision.” Dr. White “vaguely” recalled that the proposed move “was amenable to” the decedent. Dr. White recalled that the decedent “had, in the past, voiced reluctance to leave her apartment [in Santa Barbara], but it was becoming clear that some type of daily supervision . . . was essential.” He testified that “I don’t think that her judgment was as acute or intact, at that point, as it had been in the past.”
*177 The grandchildren and Maureen Hagen learned of the proposed move before they learned of the 1988 trust and pour-over will. All three met with the decedent before she moved. Maureen Hagen called Dr. White, expressing concern that the decedent “is being moved against her will to an unfamiliar environment”; Dr. White “[a]ssured” Maureen Hagen that the decedent “was not doing well on her own, and that she requires closer supervision,” and suggested that Maureen Hagen undertake to work something out directly with Hickenbottom. According to the granddaughter, at a meeting on September 4, 1989, Hickenbottom promised the granddaughter and Maureen Hagen that she would not move the decedent until there had been further discussion with grandson, but on the following day Hickenbottom broke her promise and moved the decedent without further consultation with the grandson.
The grandchildren and Maureen Hagen consistently acknowledged that none of them was in a position to care for the decedent, but that Hickenbottom was both willing and apparently able to do so. The granddaughter was attending a university in Arizona; Maureen Hagen testified that “[m]y children were too young to take over the care of [the decedent], and I was the divorced wife of her son”; the grandson testified that “I knew my grandmother was taken care of.” Maureen Hagen ultimately acknowledged that the only relative “willing to step forward and provide care for [the decedent] so she wouldn’t have to go into a nursing home” was Hickenbottom.
The grandchildren and Maureen Hagen also acknowledged that they consciously chose not to challenge the trust or the pour-over will, or to pursue the possibility that the decedent had been moved to, or was being held in, Santa Cruz against her will, dining the decedent’s lifetime. They variously explained that they considered it futile to attempt to break Hickenbottom’s influence and that they were satisfied that the decedent was being cared for; the grandson went so far as to say that “I didn’t want to involve myself,” because “it’s too hard of an issue. It’s just—I have to look out for myself sometimes.”
The grandchildren and Maureen Hagen also acknowledged that although the move from Santa Barbara to Santa Cruz had made it less convenient for them to visit with the decedent, their ability to visit, or to talk with the decedent by telephone, was not otherwise impeded.
This was Hickenbottom’s showing in support of her motion for summary judgment or summary adjudication. The grandchildren’s response is not relevant to our analysis.
*178 The trial cоurt ruled on various of Hickenbottom’s grounds, but ultimately based its order granting summary judgment against the grandson on Hickenbottom’s asserted “defense of truth,” explaining its decision as follows:
“[The grandchildren] allege that [Hickenbottom] made statements to [the decedent] about them with the result that [the decedent] disinherited them. . . . [Hickenbottom] admits having made statements to [the decedent] about the [grandchildren], but asserts that everything [Hickenbottom] told [the decedent] about the [grandchildren] was true. . . . [U]nder the First Amendment to the U.S. Constitution, true statements are absolutely privileged and cannot serve as the basis for liability. [Hickenbottom] having stated a complete defense to all causes of action, the burden shifts to the [grandchildren] to show that a triable issue of fact exists, to wit: that [Hickenbottom] told something to [the decedent] about the [grandchildren] which was not true, or engaged in other wrongful conduct with the result that [the decedent] disinherited the [grandchildren]. [The grandchildren] have not shown a triable issue of fact exists to dispute that what [Hickenbottom] told [the decedent] was true or specified any other wrongful conduct. [1 The court grants summary judgment as to all causes of action based upon the defense of truth.”
On appeal the grandson argues:
(1) That the grandchildren had made a sufficient showing of undue influence;
(2) That Hickenbottom had not made a sufficient showing of an affirmative “defense of truth,” or that the grandchildren could not prove “wrongdoing” on Hickenbottom’s part; and
(3) That the trial court’s ruling must in any event be reversed because the court failed to refer specifically to evidence. (Cf. Code Civ. Proc., § 437c, subd. (g).)
Once a summary judgment or summary adjudication is before us, for independent review, on appeal, the trial court’s assеrted failure to refer to the evidence is not dispositive. (Cf., e.g.,
Goldrich
v.
Natural Y Surgical Specialties, Inc.
(1994)
*179
As described in Hickenbottom’s moving papers in the trial court, her “defense of truth” was that “[a]ll three causes of action are based on statements allegedly made by [Hickenbottom] to [the decedent]. As all statements were either truth or opinion which contains no provably false factual assertion, none of the statements are actionable. Thus, [Hickenbottom] is entitled to judgment on all causes of action.” In oral argument to the trial cоurt Hickenbottom took the position that she had established the legal validity and prima facie factual applicability of this theory of defense; that therefore the grandchildren, to raise a triable issue of material fact and thus to avoid summary judgment, were required to show
either
that one or more of the statements were
false or
that one or more of the grandchildren’s theories were based on something
other
than Hickenbottom’s statements to the decedent; and that the grandchildren had failed to make either showing. The trial court adopted Hickenbottom’s argument. By her initial and supplemental briefing to this court, Hickenbottom has further refined her argument: She now asserts that in support of her motion for summary judgment she had sufficiently shown
both
an “affirmative defense of truth”
and
(in light of
Union Bank
v.
Superior Court
(1995)
On the record before us we conclude that Hickenbottom neither demonstrated the legal validity of a complete affirmative “defense of truth” in this case nor made a showing sufficient, under the amended summary judgment statute as construed in cases such as Union Bank, to require the grandchildren, as plaintiffs, to put on a prima facie factual case at the summary judgment stage. Thus summary judgment should not have been granted, and cannot be supported, on either of these grounds. No other basis for summary judgment has been raised or аrgued in this court.
1. Defense of Truth
In this court Hickenbottom reduces the essence of her “defense of truth” to a single sentence: “True statements are absolutely privileged and cannot form the basis for liability, regardless of the name put on the legal theory or how the claim is labeled.” She does not explicitly rely, as she did in her moving papers in the trial court, on constitutional safeguards of
*180
freedom of speech. To support her “defense of truth” she cites only
Francis
v.
Dun & Bradstreet, Inc.
(1992)
Francis does not warrant so broad a generalization.
Francis
is one of several California cases that have explicitly or implicitly acknowledged the proposition that principles applicable to actions for defamation will apply, more broadly, “whenever the gravamen of the claim is injurious falsehood.”
(Blatty
v.
New York Times Co.
(1986)
Francis'
s conclusiоns cannot be considered controversial. Falsity was an element of a civil action for defamation, and thus truth could be said to be a “complete defense” to defamation, at common law (2 Harper et al., Law of Torts (2d ed. 1986) §§ 5.0, 5.20, pp. 3, 158 et seq.), and the California statutes explicitly preserve the requirement that a defamatory publication be “false.” (Civ. Code, §§ 44, 45, 46.) To say that an action of which the gravamen is an allegation of injurious falsehood, and which is thus indistinguishable in substance from defamation (cf.
Blatty
v.
New York Times Co., supra,
But obviously these rules, bom of the common law of defamation and applicable to actions analogous to defamation, do not compel a conclusion that liability can never attach to a true statement, regardless of the circumstances in which the statement is made or the theory upon which recovery is sought.
*181
Nor would the First Amendment support the unqualified “absolute privilege” for true statements, against state action in the form of judicially supervised civil recovery, that Hickenbottom advocates. “[I]t is well understood that the right of free speech is not absolute at all times and under all circumstances.”
(Chaplinsky
v.
New Hampshire
(1942)
Patently the grandchildren’s undue influence theories did not have as their gravamen “the alleged injurious falsehood of a statement,” either in the abstract or as the grandchildren pleaded the theories in their first amended complaint.
(Blatty
v.
New York Times Co., supra,
In the context of disposition of property at death, the definition of undue influence is strongly influenced by the presumption, developed in the context of wills, that a testator was competent to make a valid will. (Cf., e.g.,
Estate of Fritschi
(1963)
These principles are manifestly as applicable to an estate plan formalized by simultaneously executed inter vivos trust and pour-over will as to a will alone. It is also clear thаt the concept of undue influence, in this context, focuses inquiry on whether the influencer has successfully undertaken to “[overpower] the mind and [bear] down the volition” of the trustor/testator at the time the estate plan was formalized, rather than (for example) on whether particular words assertedly used to that end were true or false. It is plausible, for example, that an influencer’s declaration that the trustor/testator’s issue “do not need your money as much as I do” might be demonstrably true but might nevertheless, through repetition, emphasis, or combination with other forms of persuasion and in light of the trustor/ testator’s particular susceptibilities, amount or at least significantly contribute to
“coercion
destroying free agency on the part of the [trustor/]testator.” Examples of undue influence effected at least in part by true statements are understandably rare in the reported cases, but California courts have recognized that “a person’s will may be overborne without misrepresentation”
(Odorizzi
v.
Bloomfield School Dist.
(1966)
*183 Obviously, on the other hand, at least as a practical matter a disappointed potential beneficiary’s case for undue influence would be substantially stronger if it could be shown that the influencer’s statements were in fact false. But in this case the grandchildren did not plead, and indeed have never asserted,-that anything Hickenbottom told the decedent was false.
Thus Francis, and related cases, are inapposite. If, as the grandchildren have asserted, Hickenbottom unduly influenced the decedent by means (at least in рart) of statements Hickenbottom made to the decedent for that purpose, then the fact those statements were true would not be a defense, in and of itself, to theories of relief based on the asserted undue influence. Because truth would not be a complete defense in any event, we need not consider whether Hickenbottom’s factual showing was sufficient to demonstrate that her statements were true.
2. Elements of Cause of Action
Hickenbottom has suggested no other “complete defense” to the grandchildren’s claims. (Code Civ. Proc., § 437c, former subd. (n)(2); Stats. 1992, ch. 1348, § 1.) Instead, she argues that her showing was in any event sufficient to shift to the grandchildren the burden of making a prima facie factual case in support of their first amended complaint, and that the grandchildren have not borne that burden.
Until the summary judgment statute was amended, in 1992 and 1993, to add definitions of the burdens of moving and responding parties on motions for summary judgment or summary adjudication (Stats. 1992, ch. 1348, § 1, adding a new subd. (n) to Code Civ. Proc., § 437c) and then to redesignate and augment those definitions (Stats. 1993, ch. 276, § 1, redesignated subd. (n) as subd. (o)), the judicially declared burden upon a moving defendant who did not establish a complete defense was to “conclusively negate a necessary element of the plaintiff’s case.”
(Molko
v.
Holy Spirit Assn.
(1988)
The 1992 amendment to the summary judgment statute provided in pertinent substance that a defendant who did not establish a complete defense would nevertheless have met his or her initial burden of showing the plaintiff’s action had no merit if he or she had “shown that one or more elements of the cause of action . . . cannot be established.” (Code Civ. Proc., § 437c, former subd. (n)(2), Stats. 1992, ch. 1348, § 1.) The 1993 amendment did not alter this language. There was initial debate as to
*184
whether the new statutory requirement of a showing that an element “cannot be established” effected any significant change from the preexisting requirement that the defendant “conclusively negate” the element. (Compare, e.g., Hatchimonji,
Considering the Summary View of the Recent Change in Summary Judgment Law
(Mar. 1994) CTLA Forum 11, 13, with Schmalz,
Summary Judgment: A Dress Rehearsal for Trial
(Sept. 1993) 16 L.A. Lawyer 23.) There is evidence that the 1992 and 1993 amendments were in some respects influenced by the decision of the United States Supreme Court in
Celotex Corp.
v.
Catrett
(1986)
Early this year, the effect of the 1992 and 1993 amendments on a moving defendant’s burden was directly addressed in
Union Bank
v.
Superior Court, supra,
In Union Bank the plaintiffs’ theory of recovery was, in pertinent part, that Union Bank had “participated in” a fraud on the plaintiffs involving repossession of personal property which the plaintiffs’ limited partnership had leased; the lessor had assigned repossession rights under the lease to Union Bank as security for a loan to the lessor. Union Bank propounded requests for admissions by the plaintiffs that (among other things) Union Bank (1) “ ‘took no inappropriate action in connection with its role in the transactions,’ ” (2) had committed no fraud or deceit on the plaintiffs and (3) had *185 participated in no fraudulent conspiracy, and backed up the requests with form interrogatories which required that, for any response which was not an unqualified admission, the plaintiffs should “ ‘state all facts upon which you base your response (31 Cal.App.4th at pp. 578-579.) The plaintiffs made the first requested admission but refused to make the second or third; in response to the state-all-facts interrogatories the plaintiffs stated, with respect to the second and third requests, only that they “ ‘believe that Union Bank knowingly and fraudulently took the assignment of all the assets of [the limited partnership] to secure the loan it made with [the lessor] ’ ” and that they “ ‘reserve the right to further respond to this interrogatory.’ ” (Id. at p. 578.) Union Bank made these discovery responses the basis for a motion for a defense summary judgment; the question pertinent to the issue before us was whether this showing was sufficient, under the 1992 and 1993 amendments, to shift the burden to the plaintiffs in the summary judgment proceedings.
The Court of Appeal concluded that the 1992 and 1993 amendments had legislatively overruled
Barnes
v.
Blue Haven Pools
insofar as that case “prohibited a summary judgment motion from bеing granted when a moving defendant merely relies on a plaintiff’s factually devoid interrogatory answers”
(Union Bank
v.
Superior Court, supra,
In this court, Hickenbottom argues on the basis of Union Bank that she “has made an adequate ‘showing’ . . . that [the grandson] has offered no evidence whatsoever that [Hickenbottom] did or said anything wrong. The Union Bank case now confirms what [Hickenbottom] has maintained throughout her opposition, namely that she is not required to prove the absence of material facts. Rather, her burden, which she has fully met, is simply to set forth her affirmative defense of truth and point out to the court that no material facts have been presented by [the grandson].”
We note preliminarily that in this case we deal only with the 1992 amendments to the summary judgment statute and not with the 1993 amendments which Union Bank also discussed: the motion in this case was made, heard, and ruled on before the effective date of the 1993 amendments. Much of the legislative history on which the Court of Appeal relied in Union Bank related to the 1993 amendments, and the relevance of its reasoning to the case before us is accordingly diluted.
Nevertheless we would have no quarrel, under the 1992 amendments, with the result Union Bank reached with respect to the sufficiency of the moving defendant’s showing to shift the burden for purposes of summary judgment.
*186 We cannot agree with those who may be understood to suggest that a moving defendant may shift the burden simply by suggesting the possibility that the plaintiff cannot prove its case. It is clear to us, from the requirement of the 1992 amendment that a defendant have “shown that one оr more elements of the cause of action . . . cannot be established” (Code Civ. Proc., § 437c, former subd. (n)(2); Stats. 1992, ch. 1348, § 1), that a defendant must make an affirmative showing in support of his or her motion. Such a showing connotes something significantly more than simply “pointing out to the . . . court” that “there is an absence of evidence”: before the burden of producing even a prima facie case should be shifted to the plaintiff in advance of trial, a defendant who cannot negate an element of the plaintiff’s case should be required to produce direct or circumstantial evidence that the plaintiff not only does not have but cannot reasonably expect to obtain a prima facie case. But where such a showing can be made we consider it both fair to the defendant and consistent with efficient administration of justice that the plaintiff be called upon, on risk of summary judgment, to make a prima facie case.
The circumstances of
Union Bank,
as we understand them, appear to have met these criteria. Using well-established discovery tactics, Union Bank requested admissions and, by written interrogatories, called upon the plaintiffs to substantiate any refusal to admit by stating
all facts
on which the refusal was based. The plaintiffs presumably had no less than the full 30 days provided by statute (Code Civ. Proc., § 2030, subd. (h)) in which to file written responses to these interrogatories, a period which should have been ample to permit a response “as complete and straightforward as the information reasonably available to the responding party permits” as required by the discovery act.
(Id.
subd. (f)(1); cf.
Union Bank
v.
Superior Court, supra,
*187
The
Union Bank
court subsequently made clear that nоt every discovery response which does not further the adversary’s case will suffice in and of itself to show that the case “cannot be established”; In
Villa
v.
McFerren
(1995)
Applying the criteria we have enumerated to the record before us, we conclude that Hickenbottom did not make a showing that the grandchildren’s case “cannot be established” sufficient to shift the burden to the grandchildren in the summary judgment proceedings. Any arguable inability the individual plaintiffs might have experienced, at deposition, to provide direct evidence of undue influence would have been explicable, here as in
Villa,
inasmuch as the plaintiffs almost certainly would not have been present. In this light it is notable, given the probability that Hickenbottom is the only surviving percipient witness tо much of what she did or did not do to influence the decedent’s estate-planning decisions, that Hickenbottom submitted no declaration of her own. The difficulties of proof of undue influence in circumstances such as these are taken into account in the rule that certain foundational facts will activate a
presumption
of undue influence which, at trial, would operate to shift the burden of proof to the proponent of the trust or will. (Cf.
Estate of Sarabia, supra,
Our conclusion that Hickenbottom’s showing was insufficient should not be understood to imply that the grandson’s case is necessarily meritorious. *188 Indeed the record before us suggests that his prospects of ultimately proving undue influence are slight. But while it also serves the efficient administration of justice to remove a palpably weak case from the system as soon as possible, on a motion for summary judgment we are bound by the statute to distinguish between a case which is simply weak and a case which “cannot be established.” We hold no more than that Hickenbottom has not sufficiently shown, in support of this summary judgment motion, that the grandson’s case cannot be established.
Nor do we take any position as to the several rulings on other aspects of Hickenbottom’s motion which the parties have chosen not to place before us. We hold only that because Hickenbottom did not bear her statutory burden of proving either a complete defense or that the grandson could not establish his cause of action, the burden never shifted to the grandson in the summary judgment proceedings and the trial court should have denied the motion for summary judgment.
Hickenbottom’s motion for sanctions on appeal is denied. The judgment entered May 17, 1994, is reversed as to plaintiff Michael John Hagen only. The matter is remanded to the superior court with directions that the court (1) vacate so much of its order entered October 5, 1993, as grants summary judgment against plaintiff Michael John Hagen “as to all causes of action based upon the defense of truth," and (2) modify the October 5, 1993, order insofar as necessary to deny summary judgment as to Michael John Hagen. Michael John Hagen shall recover his costs on appeal.
Cottle, P. J., and Wunderlich, J., concurred.
Respondent’s petition for review by the Supreme Court was denied March 20, 1996.