Minick v. City of Petaluma

• Citation: 207 Cal.Rptr.3d 350,3 Cal.App.5th 15
• Decision Date: 02 September 2016
• Docket Number: A143187
• Court: California Court of Appeals Court of Appeals
• Parties: Christopher MINICK, Plaintiff and Respondent, v. CITY OF PETALUMA, Defendant and Appellant.

3 Cal.App.5th 15

207 Cal.Rptr.3d 350

Christopher MINICK, Plaintiff and Respondent,

v.CITY OF PETALUMA, Defendant and Appellant.

A143187

Court of Appeal, First District, Division 4, California.

Filed September 2, 2016

Meyers, Nave, Riback, Silver & Wilson, Kevin E. Gilbert, Walnut Creek, and Kevin P. McLaughlin, Oakland, for Defendant and Appellant.

The Dolan Law Firm, Christopher B. Dolan, San Francisco; Dwyer + Kim and John P. Dwyer for Plaintiff and Respondent.

Streeter

, J.

After the trial court granted summary judgment for the City of Petaluma (the City) in this personal injury case, plaintiff Christopher Minick (Minick) moved for discretionary relief from the judgment under Code of Civil Procedure section 473, subdivision (b)

,¹ on grounds of “mistake, inadvertence, surprise or excusable neglect.” His attorney, Joshua Watson, submitted a declaration in support of the motion explaining that, at the time he prepared Minick's summary judgment opposition papers, he was suffering from a serious illness for which he was under heavy medication. Although he was unaware of it at the time, Watson told the court, cognitive impairment caused by a combination of his illness and his medicated state led him to overlook readily available evidence. The court granted the requested relief, finding excusable neglect, and the City now appeals. In deference to the trial court's broad discretion on this type of motion, we shall affirm.

I. BACKGROUND

A. Minick's Lawsuit and the Grant of Summary Judgment Against Him

While riding in the Holstein 100, a non-competitive charity bicycling event held as a fundraiser for West Marin Senior Services, Minick fell from his bicycle while descending a hill on Western Avenue in the City. Christopher Erwin, a friend riding behind Minick, saw him lose control of his bicycle after hitting a large pothole, pitching him head-first onto the pavement. Following the accident, Minick exhausted his administrative remedies with the City, and then brought suit against it alleging a single cause of action for maintaining a dangerous condition of public property under Government Code section 835

. In his lawsuit, Minick was represented by the Dolan Law Firm. Watson was the associate at that firm with sole day-to-day responsibility for the case.

In August of 2013, the City filed a summary judgment motion arguing that Minick—who testified in deposition that he has no recollection of the accident, and only remembers waking up in the hospital afterward—had no proof of any dangerous condition on public property. Watson prepared and filed papers opposing the motion, attaching some grainy, low-resolution black-and-white photographs of the site where the accident was alleged to have taken place, including a photo showing Erwin standing in an unidentified street pointing to somewhere on the pavement; a copy of a police Collision Report containing a statement from Erwin that he had seen a pothole in the street where Minick fell; and an expert declaration from an engineer, Dale Dunlap, who offered the opinion that a defect in the street at the scene of the crash caused him to fall.

The City's motion was set for hearing on January 10, 2014. The day before the hearing the court issued a tentative ruling denying the motion. When the parties appeared for argument the next day, Watson appeared, but showed signs of physical distress during argument and was taken to a hospital by ambulance. The court continued the hearing to March 12, 2014. The day before the continued hearing, the court issued another tentative ruling, again denying the City's summary judgment motion, but after hearing argument and taking the matter under submission for several weeks, eventually reversed its tentative ruling and granted the motion.

Referring at one point to Watson's arguments as “ludicrous,” the court sustained the City's hearsay and lack of foundation objections to the accident site photographs; pointed out that because of the poor quality of the images, little could be gleaned from them in any event, other than that there may have been some minor cracking in the street; and went on to sustain lack of foundation and speculation objections to Dunlap's opinion, since he had no direct knowledge of the site and relied only on the sketchy information Minick presented in the form of the photographs and the police report. Watson seemed to recognize that he failed to provide sufficient foundational evidence for various documents attached as exhibits to his opposition papers, stating in an accompanying declaration that he intended to take the depositions of a custodian of records, but adding—as if an attempt to obtain evidence could substitute for its absence—that the depositions had been continued at the City's request, without any explanation of whether he moved to compel, and if not, why not.

In light of the many deficiencies in Minick's opposition showing, the court agreed with the City that Minick had failed to present admissible evidence of any dangerous condition of public property, and issued an order granting summary judgment on May 13, 2014.

B. Minick's Motion for Discretionary Relief Under Section 473, Subdivision (b)

On June 19, 2014, Minick filed a motion for discretionary relief from the judgment under section 473, subdivision (b)

, supported by a declaration from Watson. Watson explained that he had been suffering from serious pulmonary and sleep disorders throughout 2013, and that his symptoms gradually worsened as the year progressed. He sought medical treatment and was put on a regimen of 12 different medications. In the course of treatment, he went to the emergency room four times, twice by ambulance; he consulted with five medical specialists in dozens of appointments; and he underwent radiological studies, lab studies, ultrasound studies, and sleep studies. Although Watson's underlying pulmonary condition gradually improved, he claimed to have suffered side effects from the medications, including painful spasms, episodes of disorientation, and periods of uncharacteristically strong responses to stressors.

From August through December 2013—a time period coinciding with his efforts to prepare summary judgment opposition papers for Minick—Watson reported that the combination of symptoms from illness and the side-effects from his medications were at their peak. Although at the time he felt he was adequately “soldiering on” despite the medical crisis he was in, Watson declared that, looking back on that period of time, he could see that his judgment was clouded, his thought processes were not as clear and dispassionately critical as was normal for him, and he suffered from gaps in his memory. Watson explained that he was an experienced trial lawyer, and to that point had a record of considerable success in law practice, but that in 2013, as a result of his medical condition, his ability to perform as a lawyer fell, and he made decisions in this case “that were not in keeping with [his] ordinary practice of law.”

“These shortcomings were not born of any lack of effort, complacency, disregard, or lack of caring about my client or the Court,” Watson declared. Rather, he told the court, they were a result of his “serious illness and the side effects of [the] prescribed medications.” Moreover, because his judgment was clouded and his thought processes were impaired, and because he had no previous experience with such symptoms, Watson did not realize he was cognitively impaired and thus made no effort to tell colleagues or clients about his condition. Because of his impairment, Watson stated, he did not realize he needed admissible evidence to support the opposition. Instead, he said, he inexplicably thought that, because an expert can rely on hearsay, no foundation was needed for the facts on which the expert's opinion was based.

In further support of Minick's section 473

motion, Watson submitted declarations that provided the necessary foundation for Dunlap's opinion, and, independently of that opinion, enough evidence to show the City maintained a dangerous condition on a public street that caused Minick's accident. A declaration from Erwin established that he had gone with Minick on numerous rides, and that Minick was an experienced and safe rider. Erwin stated that he rode with Minick during the event on August 20, 2011. Toward the end of the ride, he said he was behind Minick. Immediately before and at the moment of the accident, Minick was riding at a safe speed and in a safe manner, Erwin said. According to Erwin, Minick did not suddenly brake or do anything to destabilize the bicycle, but his bicycle suddenly stopped, with the front wheel twisting sideways, catapulting him into the street. It was clear to Erwin that Minick's bicycle encountered something in the street that caused the front wheel to twist and throw him forward. Erwin could see that Minick suffered serious injuries, including to his head and shoulder, and had to be taken to the hospital by ambulance. After Minick was taken to the hospital, Erwin looked at the street where the accident occurred. He saw “many deviations in its surface, including cracks, holes, abrupt vertical rises, and bumps.”

Erwin also confirmed that the photographs attached to his declaration accurately depicted the pavement at the accident site on the date of Minick's injury. The deviations in the street surface were not marked and a rider could not see their severity until coming upon them. They were dangerous to a road bicycle, like the one Minick was riding, because they could grab and twist the front wheel, popping the bicycle into the air and causing the rider to lose control. It appeared to Erwin that this uneven pavement was part of a trench that had been dug and patched. When he later returned to the site, as depicted in a photograph with him pointing at the street where Minick fell, the surface had been repaved after the accident. Thus, the photograph, which the court stated showed only a trivial...