Mann v. Cracchiolo

Decision Date19 February 1985
Citation38 Cal.3d 18,210 Cal.Rptr. 762
CourtCalifornia Supreme Court
Parties, 694 P.2d 1134 Zelvern W. MANN, as Administrator, etc., et al., Plaintiffs and Appellants, v. Andrea CRACCHIOLO III, et al., Defendants and Respondents. L.A. 31837.

Rushfeldt, Shelley & McCurdy, Hollywood, Horvitz & Greines, Horvitz & Levy, Ellis J. Horvitz, S. Thomas Todd, Encino, Harrington, Foxx, Dubrow & Canter, Dale B. Goldfarb, Mark W. Flory and Patty Mortl, Los Angeles, for defendants and respondents.


Plaintiffs, the surviving husband and three sons of Ada Crews Mann, 1 deceased, appeal from summary judgments in favor of defendants in this wrongful death action and from denial of postjudgment orders. Plaintiffs' complaint charged the UCLA Medical Center, 54 individual doctors, a radiology technician, the associate director of the hospital, and the hospital's data processing manager and finance director with breaking the decedent's neck, conspiring to conceal the existence of the broken neck, refusing to treat it, intentionally performing useless operations upon decedent to obtain Medicare and MediCal funds, and then attempting to kill her to conceal their complicity in causing and concealing the existence of the broken neck.

As might be expected when there are allegations such as these, the instant case has generated a great amount of hostility, personal clashes, side issues, and related litigation. 2 From July until October 1981, there were filings or hearings almost daily. The briefs filed herein continue to delve into side issues without always specifying their relevancy. We will set forth the facts relevant to the major issues in a brief manner, omitting facts bearing on side issues, numerous discovery motions, and motions to disqualify.

We review the court's order granting the motions for summary judgment. 3 In granting the summary judgment motions, Judge Peter S. Smith concluded that plaintiffs' opposition was not timely filed and therefor was not considered. He also determined that even if plaintiffs' opposition had been considered, it was insufficient to raise a triable issue of fact because the doctor's declaration offered in opposition to the motion lacked the requisite foundational facts to qualify him to testify as to the standard of care and tended to "shotgun his opinions in a conclusionary way." The court also concluded that at most plaintiffs' declaration would make out a claim for medical negligence and would not justify the claim for punitive damages. The summary judgment was filed October 26, 1981.


In January 1981, the trial court granted plaintiffs' motion for trial preference on the ground that one of them was over age 70 and set trial for August 31, 1981. On May 1, the case was assigned to Judge Smith for all pretrial proceedings. On June 4, defendants filed a demand for a list of plaintiffs' expert witnesses to be served no later than July 12. On the latter date, plaintiffs furnished the list, and defendants in mid-July noticed the depositions of the experts. On August 11, defendants' motion to continue the trial date was granted, and trial was set for October 26.

On August 26, plaintiffs filed an affidavit of bias against Judge Smith. On September 2, Judge Smith filed an answer and transferred the case to another department. Judge Rickles of Orange County ruled on September 18 that Judge Smith was not disqualified. After Judge Smith rejected another attempt to disqualify him, plaintiffs, on September 24, filed a petition for extraordinary relief in the Court of Appeal challenging Judge Rickles' ruling and Judge Smith's order striking the second motion to disqualify him.

On the same day the Court of Appeal issued the following temporary stay: "In order that this court may have an opportunity to consider [the] within petition, IT IS HEREBY ORDERED that all proceedings ... are stayed pending determination of the within petition or until further order of this court." 4

On October 5, defendants served and filed 11 motions for summary judgment or for orders specifying issues as without substantial controversy. The motions were noticed for hearing on October 15.

On October 6, plaintiffs filed a petition in the Court of Appeal for writ of prohibition to prevent hearing on the summary judgment motions claiming that the motions were in violation of the stay. On October 8, the Court of Appeal denied the petitions of September 28 and October 6, and terminated the temporary stay forthwith. On the same day plaintiffs were notified by telephone that the stay had been lifted. On October 13, Judge Smith issued a minute order that all pending motions in the case, including summary judgment motions, would be heard as scheduled on October 15.

Plaintiffs filed their opposition on October 13, relying upon the October 7 declaration of J. DeWitt Fox, M.D., whose name had not been included in the list of experts furnished to defendants in July. Defense counsel had not received copies of the opposition at the time of hearing on October 15. Although two defense counsel went to court to read its copy on the 14th, a third did not, and the hearing was recessed to permit him to read the opposition papers.

After the recess, the hearing continued involving numerous motions, as well as the summary judgment motions. Plaintiffs did not claim that the summary judgment motions filed while the stay was in force were invalid. After defense counsel claimed that the opposition was untimely and Judge Smith had expressed concern that defense counsel had not received the opposition papers, plaintiffs suggested a continuance to permit defense counsel to further review the papers, but the trial court stated it would not continue the proceedings. Aside from the above statement by plaintiffs they did not suggest a continuance.

At the outset the parties dispute whether the stay of "all proceedings" issued by the Court of Appeal precluded the filing of the summary judgment motions and whether further proceedings were defective. Whether "all proceedings" should be read as referring to all court actions only or as including actions by the parties presents an interesting question, but we need not reach it. Plaintiffs chose to appear and argue the merits of the summary judgment motions and did not challenge the filing of the motions at the hearing of the motions. "It is well settled that the appearance of a party at the hearing of a motion and his or her opposition to the motion on its merits is a waiver of any defects or irregularities in the notice of the motion. [Citations.]" (Tate v. Superior Court (1975) 45 Cal.App.3d 925, 930, 119 Cal.Rptr. 835; Lacey v. Bertone (1949) 33 Cal.2d 649, 651-652, 203 P.2d 755.)

Plaintiffs urge that the trial court erred in refusing to consider the opposition papers on grounds that they were not timely filed. Rule 16, subdivision B of the Law and Motion Rules of the Los Angeles County Superior Court provides: "B. All papers, other than those initiating the pro ceedings whether in opposition or support, shall be filed directly with the court clerk in the law and discovery department in which the matter is pending at least five calendar days but in no event later than 4:30 p.m. of the third court day preceding the scheduled hearing or they will not be considered, unless time is shortened by order of the court."

Monday, October 12, 1981, was a holiday; therefore, the third court day preceding the scheduled hearing was Friday, October 9, 1981. As pointed out above, plaintiffs mailed their papers to defense counsel on October 12 and filed with the court on October 13. 5

Pointing out that Code of Civil Procedure section 437c provides that summary judgment motions may be made on 10 days' notice but is silent as to the time to file counteraffidavits, the court in Albermont Petroleum Ltd. v. Cunningham (1960) 186 Cal.App.2d 84, 93, 9 Cal.Rptr. 405, concluded as an alternate ground of decision that a local rule like rule 16 which restricts the time for opposing affidavits is void and unenforceable. The court also pointed out that the summary judgment remedy is "unusual and drastic" and for this reason should be used with caution to safeguard the right to trial with any doubt as to the granting of the motion resolved in favor of the opposing party. (186 Cal.App.2d at p. 92, 9 Cal.Rptr. 405.)

The holding of Albermont was rejected in Shadle v. City of Corona (1979) 96 Cal.App.3d 173, 178-179, 157 Cal.Rptr. 624, where the court reasoned that, had the Legislature intended to grant parties opposing summary judgment the right to file opposition to the summary judgment motion up to and including the hearing, it would have said so and that in the absence of legislative direction the time for filing opposition is subject to court rule. The court points out that last minute filings will often interrupt and delay hearings while the parties and the court study the documents.

A third view was expressed recently in Kapitanski v. Von's Grocery Co. (1983) 146 Cal.App.3d 29, 32-33, 193 Cal.Rptr. 839: " 'Local court rules and policies have the force of procedural statutes, so long as they are not contrary to legislative enactments. [Citations.]' (Shadle v. City of Cornoa (1979) 96 Cal.App.3d 173, 177 .) ... Judges ... generally prefer to avoid acting as automatons and routinely reject requests by counsel to function solely in a ministerial capacity. Rigid rule following is not always consistent with a court's function to see that justice is done. Cognizant of the strong policy favoring the disposition of cases on their merits (Weitz v. Yankosky (1966) 63 Cal.2d 849, 854-855 [48 Cal.Rptr. 620, 409 P.2d 700]; Slusher v. Durrer (1977) 69 Cal.App.3d 747, 753-754 ), judges usually consider whether to exercise their discretion in applying local court rules and frequently consider...

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