Lerma v. County of Orange

• Decision Date: 13 July 2004
• Docket Number: No. G032120.,G032120.
• Citation: 120 Cal.App.4th 709,15 Cal.Rptr.3d 609
• Court: California Court of Appeals Court of Appeals
• Parties: Richard LERMA et al., Plaintiffs and Appellants, v. COUNTY OF ORANGE et al., Defendants and Respondents.

15 Cal.Rptr.3d 609

120 Cal.App.4th 709

Richard LERMA et al., Plaintiffs and Appellants, v. COUNTY OF ORANGE et al., Defendants and Respondents.

No. G032120.

Court of Appeal, Fourth District, Division 3.

July 13, 2004.

Robert W. Ragsdale, Santa Ana, and Gary T. Mason, Tustin, for Plaintiffs and Appellants.

Allen, Mullings & Allen and Debra E. Allen, Santa Ana, for Defendant and Respondent County of Orange.

Carpenter, Rothans & Dumont, Steven J. Rothans, Los Angeles, and Jill W. Babington for Defendant and Respondent City of Rancho Santa Margarita.

OPINION

MOORE, J.

There are times when respect for the human condition dictates a compassionate response to a request for a continuance. This is one of those times.

In the case before us, plaintiffs' counsel was served with a motion for summary judgment on the day he was admitted to the hospital to have his cancerous bladder removed. The attorney was unaware that he had been served with the motion until the day after he was released from the hospital. He then had two business days in which to obtain affidavits, and prepare and file an opposition to the motion, or lose his clients' case. Even though the attorney was in no condition to work, he managed to timely file a perfunctory opposition, together with a gut-wrenching request for a continuance. He was largely nonspecific as to the particular affidavits he might file, and the explicit facts he might adduce in opposition to the motion, if only he had the time to do so. He was, however, painfully specific about the reasons why he was in a position to be no more complete at that moment in time.

The trial court applied Code of Civil Procedure section 437c, subdivision (h), to deny the continuance request, and thereafter put an end to plaintiffs' case, by granting summary judgment in defendants' favor. It did not consider whether the request, even though shy of compliance with section 437c, subdivision (h), showed good cause for a continuance.

Defendants argue that the attorney should have already had on hand all evidence necessary to oppose the motion, and that, therefore, a continuance should have been unnecessary. Defendants seem to overlook the fact that, even if all the necessary evidence was contained in files located only 10 feet away from the attorney's desk, there are times when walking those 10 feet, lifting each individual file, and searching through documentation to find each specific item of evidence, is simply beyond human ability. The fact that the incapacitated attorney filed anything at all was nothing short of heroic. The request he filed unquestionably showed good cause for a continuance and the court abused its discretion in denying the request. We reverse and remand.

I FACTS

Garrett Lerma was killed in an automobile accident. In December 2001, his father, mother and sister, plaintiffs Richard, Deborah and Ashlie Lerma (the Lermas), filed a wrongful death complaint against the County of Orange, the City of Rancho Santa Margarita, and Morgan A. Pasqualetto (Pasqualetto), one of the drivers involved in the accident.

In the complaint, the Lermas alleged that: "On December 26, 2000, on Los Alisos Blvd., near its intersection with SR 241, in the City of Rancho Santa Margarita, County of Orange, State of California, ... GARRETT LOGAN LERMA was killed in a motor vehicle accident on said street. On and before said date the subject street was in a dangerous condition and created a substantial risk of harm that the conditins [sic] of the street, including vegetation on the property, obscured the view of drivers so that drivers coming on to and entering the street could believe that it was safe to enter on to the street and not see other motor vehicles coming from different directions."

On November 26, 2002, the city filed a motion for summary judgment, which was set for hearing on December 24, 2002. The motion was based on four grounds: (1) pursuant to Government Code section 830.6, the city was immune from liability for the roadway design; (2) the city had neither actual nor constructive notice of any alleged dangerous condition before the accident; (3) there was no dangerous condition at the time of the accident; and (4) the conduct of the drivers of certain vehicles involved in the accident constituted intervening, superseding negligent acts. On November 27, 2002, the county filed a notice of joinder in the motion for summary judgment.

On December 10, 2002, the Lermas filed an opposition and request for continuance of the motion for summary judgment. The request for continuance was based on the dire health condition of the Lermas' attorney.

In his declaration in support of the request for continuance, the attorney stated in pertinent part: "2. I was diagnosed with a reoccurrence of cancer in May 2002 and since shortly thereafter have been undergoing treatment. I was scheduled for surgery at USC-Norris Cancer Center the week of November 25, 2002. Due to complications from the treatment, I have suffered kidney problems and on Friday, November 23, 2002, I was admitted to Saddleback Hospital for emergency surgery to prevent kidney failure. I was released later that day but under pain medication. [¶] 3. At 10:00 A.M., on November 26, 2002, I was admitted to USC-Norris Cancer Hospital for removal of my bladder due to cancer. I was in intensive care for 2 days and was discharged on December 6, 2002. I am presently unable to work and have been advised by my doctors that I will not be able to return to work for 6 to 8 weeks."

The declaration continued: "4. I was served with the City of Rancho Santa Margarita's motion for summary judgment on November 26, 2002, the day of my admission to the hospital. I did not see or become aware of the motion until December 7, 2002, upon my return home. [¶] 5. Obviously, I have not been able to obtain the evidence and declarations necessary to oppose the city's motion. [¶] 6. I believe that I will be able to obtain the necessary evidence and declarations to successfully oppose the motion and establish a triable issue of fact to each of the claimed undisputed facts raised by the city."

In the opposition to the summary judgment motion, the Lermas stated: (1) their cause of action for dangerous condition of property was not based on the design of the roadway, but rather was based on the maintenance of shrubbery within the center divider, which they contended obscured the view of drivers; (2) if given the opportunity, they would be able to provide evidence to raise a triable issue of fact pertaining to the public entities' notice of the dangerous condition; (3) whether there was a dangerous condition was a question of fact; (4) the negligence of any third party would not, as a matter of law, exonerate the public entities; and (5) the county's joinder was untimely filed.

The court denied the Lermas' request for a continuance and granted the summary judgment motion. In its formal order granting summary judgment in favor of the city, the court stated that summary judgment was granted for two reasons: (1) the city was immune from liability as a matter of law pursuant to Government Code section 830.6; and (2) the city had neither actual nor constructive notice of any alleged dangerous condition before the accident. In the formal order granting summary judgment in favor of the county, only the first ground was mentioned.

Summary judgment was thereafter entered in favor of each of the city and the county. Richard and Deborah Lerma appeal from each judgment.¹

II DISCUSSION

A. Request for Continuance

"`"`Generally, power to determine when a continuance should be granted is within the discretion of the court, and there is no right to a continuance as a matter of law. [Citation.]'"' [Citation.] An exception is created by Code of Civil Procedure section 437c, subdivision (h), which mandates that the court grant a continuance of a hearing on a motion for summary judgment `"`upon a good faith showing by affidavit that a continuance is needed to obtain facts essential to justify opposition to the motion.'" [Citations.]' [Citation.]" (Mahoney v. Southland Mental Health Associates Medical Group (1990) 223 Cal.App.3d 167, 170, 272 Cal.Rptr. 602.)

In order to determine whether a continuance is mandatory, then, we look to Code of Civil Procedure section 437c, subdivision (h). That subdivision provides in pertinent part: "If it appears from the affidavits submitted in opposition to a motion for summary judgment ... that facts essential to justify opposition may exist but cannot, for reasons stated, then be presented, the court shall deny the motion, or order a continuance to permit affidavits to be obtained or discovery to be had or may make any other order as may be just."

The court denied the Lermas' request for a continuance on finding they had not presented competent evidence to establish the grounds for a continuance. Indeed, the Lermas did not provide any affidavits whatsoever indicating what facts essential to justify opposition may have existed. The only hint provided as to what essential facts might have been available was contained in the body of the opposition. In the opposition, the Lermas emphasized that it was not roadway design but shrubbery maintenance that was at issue, and stated that Pasqualetto had testified at deposition that the shrubbery in the center divider obscured the view of approaching vehicles. From this, one might infer that the Lermas, had they more time, would have presented evidence sufficient to raise a triable issue of fact as to whether the state of the shrubbery, rather than the roadway design, caused the allegedly dangerous condition of property.

The only declaration the Lermas actually offered was the declaration of their incapacitated attorney. He stated in a conclusory fashion that he believed he would "be able to obtain the necessary evidence and declarations to successfully oppose the motion and establish a triable issue of fact to...