What is the burden of proof for City in its claim against City?

City may well contend that the issue had to be raised in the trial court. Morris v. Williams (1967) 67 Cal.2d 733, 760 is instructive. The court noted, "Where the evidence necessary to establish a fact essential to a claim lies peculiarly within the knowledge and competence of one of the parties, that party has the burden of going forward with the evidence on the issue although it is not the party asserting the claim." (Ibid.) The court rejected the defendant's claim that it had been misled by the trial court's misstatement about the burden of proof. The court stated that "despite the trial court's unfortunate language, defendants should have known that the burden rested on them." (Id. at pp. 760-761.) The same is true here. City had the burden of proof, and should have known it.

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