Arauz v. Gerhardt

• Decision Date: 07 April 1977
• Citation: Arauz v. Gerhardt, 68 Cal.App.3d 937, 137 Cal.Rptr. 619 (Cal. App. 1977)
• Court: California Court of Appeals
• Parties: Amelia ARAUZ, Plaintiff and Appellant, v. Elizabeth GERHARDT et al., Defendants and Respondents. Civ. 49056.

Page 619

137 Cal.Rptr. 619

68 Cal.App.3d 937

Amelia ARAUZ, Plaintiff and Appellant, v. Elizabeth GERHARDT et al., Defendants and Respondents.

Civ. 49056.

Court of Appeal, Second District, Division 3, California.

April 7, 1977.

Hearing Denied June 2, 1977.

Magana & Cathcart and Charles D. Sneathern, Los Angeles, for appellant.

Spray, Gould & Bowers and Daniel O. Howard, Los Angeles, for respondent Gerhardt.

Gilliland, Koelsche, Roberson & Moser and James L. Moser, Los Angeles, for respondent Burroughs.

Schell & Delamer and Richard P. St. Clair, Los Angeles, for respondent Great Western Council, Inc.

FORD, Presiding Justice.

Plaintiff Amelia Arauz has appealed from a summary judgment.

Plaintiffs Gregory Grabowski, a minor, by his guardian ad litem, Amelia Arauz, and Amelia Arauz on her own behalf brought this action against Great Western Council, Inc., erroneously designated in the complaint as Crescent Bay Area Council, Pauline Burroughs, the owner of the automobile to which reference was made in the complaint, and Elizabeth Gerhardt, the driver of the automobile.

In the first cause of action, on behalf of the minor it was alleged that on or about February 10, 1973, at approximately 5:30 p.m., at or near the intersection of Talbert Street, Saran Drive and Redland Street in the County of Los Angeles, defendants 'so carelessly and negligently owned, operated, maintained, controlled and entrusted the above mentioned automobile so as to cause it to collide with the person of Gregory Grabowski, causing the injuries and damages hereinafter set forth.' The minor's cause of action is not involved on this appeal.

The third cause of action of the complaint was stated to be one for 'negligent infliction of emotional harm,' wherein, after setting forth the facts regarding the occurrence of the accident, it was alleged as follows: '(T)hat plaintiff is informed and believes that she (plaintiff Arauz) arrived on the scene within five minutes of the actual collision and upon discovering that the injured boy was her son, suffered severe fright, shock and mental illness requiring psychiatric care.' Plaintiff Arauz alleged injury to her person, past and future medical expenses, and loss of earnings and earning capacity as a result of defendants' negligence.

After answers to the first amended complaint were filed, defendants filed a notice of motion for summary judgment with respect to the third cause of action of that complaint. Declarations in support of and in opposition to the motion were filed by the parties. The motion was heard and submitted. Thereafter, the trial court made its order, which was set forth in the minutes of the court as follows: 'The motion for partial summary judgment is granted. Under the facts set forth in the declarations it would seem that the plaintiff Arauz did not arrive at the scene until some time after the accident which consequently was not witnessed by her. The limiting condition in Dillon v. Legg, 68 Cal.2d 728, 69 Cal.Rptr. 72, 441 P.2d 912 that there must be a 'sensory and contemporaneous observance of the accident, as contrasted with learning of the accident from others after its occurrence' is not present in the instant case.' Judgment against plaintiff Amelia Arauz was entered.

In determining the sufficiency of the declarations offered by the parties on the motion for summary judgment we are guided by familiar principles. As was stated in Parker v. Twentieth Century-Fox Film Corp., 3 Cal.3d 176, at page 181, 89 Cal.Rptr. 737, at page 739, 747 P.2d 689, at page 691:

'The familiar rules are that the matter to be determined by the trial court on a motion for summary judgment is whether facts have been presented which give rise to a triable factual issue. The court may not pass upon the issue itself. Summary judgment is proper only if the affidavits or declarations (fn. omitted) in support of the moving party would be sufficient to sustain a judgment in his favor and his opponent does not by affidavit show facts sufficient to present a triable issue of fact. The affidavits of the moving party are strictly construed, and doubts as to the propriety of summary judgment should be resolved against granting the motion. Such summary procedure is drastic and should be used with caution so that it does not become a substitute for the open trial method of determining facts. ( ) The moving party cannot depend upon allegations in his own pleadings to cure deficient affidavits, nor can his adversary rely upon his own pleadings in lieu or in support of affidavits in opposition to a motion; however, a party can rely on his adversary's pleadings to establish facts not contained in his own affidavits. (Citation.) Also, the court may consider facts stipulated to by the parties and facts which are properly the subject of judicial notice. (Citations.)' (See Jacobs v. Retail Clerks Union, Local 1222, 49 Cal.App.3d 959, 964--965, 123 Cal.Rptr. 309, Hale v. George A. Hormel & Co., 48 Cal.App.3d 73, 81, 121 Cal.Rptr. 144.)

In the declaration of defendant Betsy B. Gerhardt it was stated that she was returning several members of the Cub Scouts to their homes after an outing at the Culver City Ice Rink. Plaintiff Gregory was with her. After she 'dropped him off at his apartment complex' her 'vehicle made contact' with Gregory. She observed him at the right of her vehicle 'where he was attempting to get up off the pavement.' When she alighted from her vehicle, 'the only visible injury' she observed was 'a very small amount of blood' on Gregory's forehead. He did not appear to be 'bleeding in any other area of his body.' There were no bloodstains on his clothes and his clothing was not torn. He was not crying but he appeared to be 'mederately upset.' She and Gregory walked to the curb and sat down. Sometime thereafter plaintiff Amelia Arauz 'arrived at the scene'; this was prior to the arrival of the ambulance.

The declaration of James L. Craig, one of the defense attorneys, contained excerpts from the deposition of a witness, Mrs. Mary Barker. When Mrs. Barker approached the scene of the accident she saw defendant Gerhardt and plaintiff Gregory standing 'on the grass back from the curb.' Mrs. Gerhardt was holding Gregory. Except for a cut on his head, she did not notice any injury to the boy and he complained of none. She saw neither blood on his clothing nor rips thereof. She stated that the ambulance arrived '(p)ossibly' ten minutes after she got to the scene of the accident; it took her between two to five minutes to run from her apartment to the scene of the accident after a boy ran down the hall saying that there had been an accident.

Portions of plaintiff Arauz' deposition were included in the declaration of Lon Harris, another defense attorney. In one portion plaintiff Arauz testified that she was given tranquilizers at the hospital after the accident. Other than being tired and having a floating feeling from the Valium given to her, she had no problems or complaints immediately after the accident. She further testified: 'Q. Within approximately three months after the accident describe for me, please, all the problems, symptoms, and complaints you had at that time? . . . THE WITNESS: Yes. And I became very cold all over. All I wanted to do was sleep. Very, very depressed I used to go to Dr. Labin, and I couldn't talk to him. I start crying. I think I went twice to him, and he just stand there and look at me. And he say he was expecting me go--I mean it was--I was coming, the reaction from the accident was coming to me. At work I was just upset, very much upset. Then, when the boy went to school, I became very panic, and I just run. I want to run away with him some place, I guess, hide. I decide to go back to Panama.'

The declaration of Brian Magana, one of the attorneys for plaintiff Arauz, was offered in opposition to the motion. That declaration also included excerpts from plaintiff Arauz' deposition. Therein plaintiff Arauz testified that she was traveling down Machester Boulevard and just after turning left on to another street she saw the scene of the accident. She further testified as follows: 'When I arrived, one lady screamed, 'That is the mother of the child.' And somebody--I say, 'How did it happen?' He say about three minutes ago. Another one told me a little bit longer. 'You must missed it.' . . . Q. When you first saw Gregory, can you describe for me, please, where you were and where he was when you first saw him? A. I saw very little of Gregory because they trying to hold me back. I saw lots of blood all over some people--I guess they were holding him--all over from the head down. But, like I say, they trying me not to get close to him.'

Also contained in Attorney Magana's declaration was the following excerpt from a prior deposition of plaintiff Arauz, wherein she testified: 'Q. When you got close to Gregory, how close did you get? A. Very close to him but just for a second because they pulled me away. Just a few feet away from him. I couldn't touch him, nothing. Q. And did you have a chance to look at Gregory? A. Yes, I saw blood running all over, and one lady was blood all over her. Q. Where did you see blood all over? A. All over his face and his head and the jacket and the shoes and part of the shoes. And one lady has blood and the towels because they have had blood.'

Excerpts from the deposition of the minor plaintiff, Gregory Grabowski, were also set forth in Attorney Magana's declaration as follows: 'Q. Do you recall the car hitting you at any time? A. No. Q. Did you know who pulled you from underneath the car and up to the sidewalk? A. Huh-uh. He or she pulled under the armpits. Q. You don't remember whether it was male or female? A. No. Q. And they pulled you up on the sidewalk? A. Yes. Q. And then the next thing you remember is hearing an ambulance coming? A. Yes, but before that someone brang a bunch of ice. Q. Someone brought some ice? Where did they put...