Opinion
G044283 Super. Ct. No. 30-2009-00123520
11-18-2011
GEORGIE SALAZAR, a Minor, etc., Plaintiff and Appellant, v. SANTA ANA UNIFIED SCHOOL DISTRICT, Defendant and Respondent.
Law Offices of Robert H. London, Robert H. London and Robert A. Brock for Plaintiff and Appellant. Declues, Burkett & Thompson, Cary K. Quan and Gregory A. Wille for Defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
Appeal from a judgment of the Superior Court of Orange County, Kazuharu Makino, Judge. Reversed and remanded.
Law Offices of Robert H. London, Robert H. London and Robert A. Brock for Plaintiff and Appellant.
Declues, Burkett & Thompson, Cary K. Quan and Gregory A. Wille for Defendant and Respondent.
I.
INTRODUCTION
Eight-year-old Georgie Salazar suffered injuries when she lost her grip and fell from the "Sky Swivel," a piece of playground equipment similar to monkey bars, at a school playground within the Santa Ana Unified School District (the School District). By and through her guardian ad litem, she sued the School District for premises liability and general negligence under the theories the Sky Swivel created a dangerous condition of public property and the School District did not provide adequate supervision of the playground. The trial court granted the School District's motion for summary judgment after denying Salazar's ex parte application to continue the motion hearing date and the trial date.
We reverse because the trial court abused its discretion by denying Salazar's application for a continuance of a hearing on the motion for summary judgment. Although a continuance was not mandatory under Code of Civil Procedure section 437c, subdivision (h) (section 437c(h)), under the circumstances presented, the trial court had to grant a continuance for cause. In support of the ex parte application for a continuance, Salazar's counsel submitted a declaration stating that during the period in which he had to prepare opposition papers, he was taking care of his wife, who was seriously ill and requiring hospice care, and he had undergone surgery and had been unable to work for several weeks.
In addition, the School District's recently served discovery responses revealed two potential defendants, and Salazar's counsel wanted to take their depositions before filing opposition to the summary judgment. The case was barely a year old, no prior continuances had been granted, there was no evidence counsel had been dilatory in prosecuting the case, and there was no evidence the requested continuance would cause the School District to suffer prejudice.
II.
FACTS
Salazar was a fourth grade student at Lincoln Elementary School, which is part of the School District. During the afternoon recess on a schoolday in April 2008, she played on the Sky Swivel. Unlike traditional monkey bars, the Sky Swivel has three spinning wheels with spokes, affixed at offsetting angles to an overhead bar, with a ladder at either end of the apparatus. The Sky Swivel had been installed on the playground of the school between mid-December 2006 and mid-January 2007. Salazar had never played on the Sky Swivel before and had not been instructed on how to use it.
Salazar, who stood four feet two inches in height, waited in line for her turn to play on the Sky Swivel. When her turn came, she climbed a ladder at one end of the Sky Swivel, grabbed a wheel with one hand, and, as the wheel spun, reached for the next wheel. (In her declaration, Salazar stated she grabbed the first wheel with both hands, then reached for the next wheel with one hand.) She could not quite reach the next wheel and hung by her right hand until she lost her grip and fell. No one pushed her.
Salazar fell onto wood chips covering the area underneath the Sky Swivel. Her left arm hit the ground first and fractured.
A friend told Estelita Walker, an activity supervisor, what had happened. At the time of the accident, Walker was monitoring the playground area in which the Sky Swivel and other equipment was located but did not see Salazar fall. Walker estimated about 30 children were playing in the playground when the accident occurred; Salazar estimated about 70 children were playing in the area. Walker took Salazar to the school office. Salazar was transported to a hospital, where her left arm was placed in a cast.
III.
PROCEEDINGS IN THE TRIAL COURT
Salazar's first amended complaint asserted one cause of action each for premises liability and general negligence. The cause of action for premises liability included counts for negligence, willful failure to warn, and dangerous condition of public property, based on this allegation: "[Salazar] was playing on the monkey bars in [the School District's] premises without any supervision or with inadequate supervision, when she slipped and fell and sustained injuries and damages according to proof. Said monkey bars constituted a dangerous condition in that they were accessible to small children who should not have been able to access such equipment without adequate supervision. Such physical access, without adequate warning or supervision, increased the risk of harm to" [Salazar]."
The general negligence cause of action alleged the School District "negligently, carelessly or recklessly permitted [Salazar] to access and to play on the monkey bars on [the School District's] premises during lunch, recess or other intermission or immediately before or after school, either without any supervision or with inadequate supervision, and, as a proximate result, plaintiff slipped and fell and sustained bodily injuries and damages according to proof."
The School District moved for summary judgment. The hearing on the motion was set for a date 35 days before the trial date. Salazar applied ex parte for a continuance of the trial and of the hearing on the motion for summary judgment. She did so on the grounds the Doe defendants had just been identified and served, both Salazar's counsel and his wife had been seriously ill, and counsel was encountering difficulty obtaining declarations. The trial court denied the application for a continuance. Salazar submitted opposition to the motion for summary judgment.
The trial court granted the School District's motion for summary judgment and made rulings on the evidentiary objections. In the order granting summary judgment, the court stated: "The First [C]ause of Action for General Negligence is treated as Imputed Negligence of Employee (Government Code § 815.2). There are no disputed facts as to what Walker did or did not do. The undisputed facts show no negligence. The District established that Walker was not negligent. (UMF No. 3) Plaintiff did not controvert this fact. The fact that Walker was not specially watching the Monkey Bars is not determinative. (UMF No. 29) [¶] The Second [C]ause of [A]ction for Premises Liability is treated as Dangerous Condition of Governmental Property (Government Code § 835). Plaintiff attempted to establish a dangerous condition through the declaration of Kenneth Solomon. Most of the declaration is either speculation, without foundation, or irrelevant (site inspection was 2 years after the event). The District established that it did not have actual or constructive notice of a dangerous condition. There were no complaints. (UMF Nos. 17, 18 and 19) Plaintiff did not address these matters."
Salazar timely appealed from the judgment.
IV.
THE TRIAL COURT ERRED BY DENYING SALAZAR'S
EX PARTE APPLICATION FOR A CONTINUANCE.
Salazar argues the trial court abused its discretion by denying her counsel's ex parte application to continue the trial and the hearing on the School District's motion for summary judgment. We conclude a continuance of the motion hearing date was not mandatory, but the trial court erred by denying a continuance for good cause.
A. Background
The motion for summary judgment was served on May 26, 2010 and was noticed to be heard on August 13, 2010. Opposition to the motion was due on July 30. When the motion for summary judgment was served, the case had been pending for a year, the complaint having been filed on May 22, 2009. Trial was set to commence on September 17, 2010.
On July 27, 2010, Salazar's counsel filed an ex parte application for a continuance of the hearing on the motion for summary judgment of at least 30 days and a continuance of trial of at least 90 days. The application stated it was based on California Rules of Court, rule 3.1332(b), (c)(3) and (c)(5) and Code of Civil Procedure section 128, subdivision (a)(8) and section 437c(h).
In support of the application, Salazar's counsel submitted a declaration expressing at least six bases for a continuance. First, counsel declared his wife had been seriously ill and in the hospital from May 1 through June 5, 2010, when she was released to go home on hospice care. Since June 5, counsel had been primarily responsible (with their minor children) for his wife's care, which included taking her to "numerous radiation treatments." Second, on July 1, 2010, counsel himself underwent surgery for prostate cancer and was unable to work for two weeks while recovering. Counsel declared, "[t]hese pre-occupations have hampered me from completing the research and preparation of the Opposition to the motion for summary judgment."
The declaration did not give the reason for hospitalization. Salazar's reply brief on appeal explains counsel's wife had been battling metastatic breast cancer that had spread to her colon. The reply brief states that upon her release from the hospital, "[c]ounsel and his children seldom left her bedside until her passing on September 28, 2010."
The declaration did not give the reason for surgery. Salazar's reply brief on appeal states the surgery addressed acute prostate cancer.
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Third, counsel declared Salazar was out of country for the summer and was not expected to return until August "so that she is presently unavailable to sign her declaration." Fourth, counsel declared: "Based on the discovery responses I have just today received from Defendant District, Defendant District has just identified for the first time in this litigation 2 District employees . . . responsible for the inspection and maintenance of the playground equipment." Counsel declared, "a continuance of the trial is necessary to permit discovery by and to these new defendants."
Fifth, counsel declared the School District's recently served discovery responses revealed potential defendants to be substituted in place of the Doe defendants, and "a continuance of the trial is necessary to permit discovery by and to these new defendants." Finally, counsel declared a continuance was needed to secure a declaration from Salazar's expert, "describing the equipment and the dangerous conditions posed by the equipment as designed, installed and maintained by the [School District]."
The ex parte application for a continuance was filed on July 27, 2010 and heard on the morning of July 28. The ex parte papers were faxed to counsel for the School District before 10:00 a.m. on July 27. Salazar's counsel received no response from the School District's counsel. Although counsel for the School District appeared at the ex parte hearing, written opposition to the request for a continuance does not appear in the appellate record, and there is no transcript of the hearing.
The trial court's minute order states: "The Court having fully considered the arguments of all parties, both written and oral, as well as the evidence presented, now rules as follows: Ex Parte Application to Continue Trial—DENIED." The trial court gave the only indication of its reasoning when, at the hearing on the motion for summary judgment, it stated: "[T]he motion for a continuance had nothing to do with the summary judgment motion. The basis for a continuance was about new parties being added and the need to conduct discovery as to them."
B. Mandatory Continuance Under Section 437c(h)
The trial court generally has discretion to decide whether to grant a continuance. (Lerma v. County of Orange (2004) 120 Cal.App.4th 709, 714 (Lerma).) A continuance of a motion for summary judgment is mandatory when the party seeking the continuance makes a good faith showing by affidavit that a continuance is needed to obtain facts essential to oppose the motion. (Ibid.) Section 437c(h) provides, in relevant 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 declaration supporting the request for a continuance must identify in detail the specific facts necessary to oppose the motion. (Lerma, supra, at p. 715.)
The declaration submitted by Salazar's counsel did not meet that standard. The declaration stated Salazar was out of the country and would not be able to sign her declaration until sometime in August, and a continuance was necessary to secure a declaration from Salazar's expert. Counsel's declaration did not specifically identify the facts Salazar and the expert would have provided that would be necessary to oppose the summary judgment motion. Both Salazar and the expert produced declarations, and, while Salazar's declaration was signed by her guardian ad litem, the School District did not object to the declaration as improperly executed. Thus, a continuance under section 437c(h) was not mandatory.
C. Continuance for Cause
When a party fails to meet the requirements of section 437c(h), the trial court may, in its discretion, grant a continuance upon a showing of good cause. (Lerma, supra, 120 Cal.App.4th at p. 716.) The standards governing requests for continuances of trial dates are instructive. (Ibid.) California Rules of Court, rule 3.1332 sets forth those standards. Rule 3.1332(c) states, in relevant part: "The court may grant a continuance only on an affirmative showing of good cause requiring the continuance. Circumstances that may indicate good cause include: [¶] . . . [¶] (3) The unavailability of trial counsel because of death, illness, or other excusable circumstances; [¶] . . . [¶] (5) The addition of a new party if: [¶] . . . [¶] (B) The other parties have not had a reasonable opportunity to conduct discovery and prepare for trial in regard to the new party's involvement in the case."
Other factors the court may consider on an application for a continuance of trial are the proximity of the trial date (Cal. Rules of Court, rule 3.1332(d)(1)); whether previous continuances had been granted (id., rule 3.1332(d)(2)); prejudice to parties or witnesses resulting from a continuance (id., rule 3.1332(d)(5)); the effect of a continuance on the trial court's calendar (id., rule 3.1332(d)(7)); and "[w]hether the interests of justice are best served by a continuance, by the trial of the matter, or by imposing conditions on the continuance" (id., rule 3.1332(d)(10)).
Our consideration of these circumstances and factors leads us to conclude the trial court abused its discretion by denying a continuance of the hearing on the motion for summary judgment. First and foremost were the illness and hospitalization of both Salazar's counsel and his wife. The motion for summary judgment was served on Salazar's counsel while his wife was hospitalized and he was dealing with her ultimately fatal illness. When she returned home (under hospice care) 10 days after the motion was served, counsel was primarily responsible for his wife's care and took her to numerous radiation treatments. On July 1, counsel himself underwent surgery and was unable to work for two weeks. These conditions themselves warranted a brief continuance under California Rules of Court, rule 3.1332(c)(3). Not only was counsel severely ill, but his wife's illness was, without question, a circumstance establishing good cause for a continuance.
In addition, Salazar's counsel explained the School District's discovery responses identified two of the School District's employees, Martin Jagodnik and "TJ," who were responsible for inspection and maintenance of the playground equipment. A continuance was sought for the utterly reasonable purpose of taking their depositions. Notices of deposition were "sent out" on the day the request for a continuance was filed.
No continuances previously had been sought or granted. The case had been pending for barely a year when the motion for summary judgment was served. Salazar's counsel asked for a reasonable, and relatively short, 90-day continuance of trial and a 30-day continuance of the hearing on the summary judgment motion. The School District did not respond after being served with the ex parte papers a day before the ex parte hearing and offered no evidence to suggest the requested continuance would have caused it to suffer prejudice.
Lerma, supra, 120 Cal.App.4th 709, supports our conclusion. In Lerma, the plaintiff's counsel had been diagnosed with a reoccurrence of cancer and had been undergoing treatment for it. (Id. at p. 713.) Due to complications from the treatment, he suffered kidney problems and was admitted to the hospital for emergency treatment to prevent kidney failure. (Ibid.) He was released later that day under pain medication but three days later underwent surgery for removal of his bladder due to cancer. He was in intensive care for two days and discharged 10 days after the surgery. He was unable to return to work for six to eight weeks. (Ibid.)
The plaintiffs counsel was served with the defendant's motion for summary judgment on the day he was admitted to the hospital for surgery to remove his gall bladder. (Lerma, supra, 120 Cal.App.4th at p. 713.) He did not become aware of the motion for summary judgment until the day after he returned home from the hospital, giving him two business days to prepare opposition. (Ibid.) Counsel was nonetheless able to put together a perfunctory opposition together with a request for a continuance of the hearing on the motion for summary judgment on the ground a continuance was necessary to obtain the evidence and declarations to oppose the motion. (Ibid.) The declaration in support of the request for a continuance was nonspecific as to the declarations he might file and the facts he might adduce in opposition to the motion for summary judgment. (Id. at pp. 711, 713.)
The trial court denied the request for a continuance and granted the motion for summary judgment. (Lerma, supra, 120 Cal.App.4th at p. 713.) A panel of this court reversed, stating the trial court abused its discretion because "[a] continuance was clearly necessary." (Id. at p. 718.) The Lerma court concluded a continuance was not mandatory under section 437c(h) because the plaintiff's counsel did not explain with the requisite specificity the evidence and facts he would have been able to obtain to oppose the motion. (Lerma, supra, at pp. 714-715.) However, the court reasoned, while a continuance was not mandatory under section 437c(h), the trial court must "determine whether the party requesting the continuance has nonetheless established good cause therefor." (Lerma, supra, at p. 716.) Relying on Hernandez v. Superior Court (2004) 115 Cal.App.4th 1242, the Lerma court stated: "'The death or serious illness of a trial attorney or a party "should, under normal circumstances, be considered good cause for granting the continuance of a trial date[.]" [Citation.]' [Citation.] Likewise, it is good cause for granting the continuance of a summary judgment motion." (Lerma, supra, at p. 717.)
So, too, it is in this case. The serious illness of both Salazar's counsel and his wife constituted good cause for granting a continuance. In addition, Salazar's counsel explained the School District's recent discovery responses revealed two potential defendants' testimony might be relevant to opposing the summary judgment motion. No showing was made that a continuance would cause the School District to suffer prejudice.
The Lerma court acknowledged a trial court's obligation to balance responsibilities when a continuance of a hearing on a motion for summary judgment is sought. (Lerma, supra, 120 Cal.App.4th at pp. 717-718.) The trial court must "'actively assume and maintain control over the pace of litigation,'" and also "'abide by the guiding principle of deciding cases on their merits rather than on procedural deficiencies.'" (Id. at p. 718.) In this case, public policy favored the latter concern: "This is not a case where a party has been dilatory in its efforts and the court needs to seize control of the situation and force the party to engage in diligent pursuit of litigation objectives. It is simply a case in which the frailties of mankind's physical housing created a brief interference with the efficient resolution of a motion." (Ibid.) There is no evidence Salazar's counsel had been dilatory and there was no indication the trial court had to step in to assume and maintain control over the pace of litigation.
The School District argues Lerma is distinguishable because it presented a more egregious set of facts. It is true, as the School District argues, in Lerma, unlike this case, counsel was served with the summary judgment motion on the day he was admitted to the hospital for surgery and had only two business days on his release to file opposition. Lerma was decided under Code of Civil Procedure former section 437c, subdivision (a) which had a 28-day notice requirement, while, in this case, Salazar's counsel had the benefit of a 75-day notice period under current section 437c, subdivision (a). Those factual differences do not, however, support a different result here. Salazar's counsel, though having more time to prepare opposition than his counterpart in Lerma, was struggling to cope with his own serious illness and surgery, his wife's serious and ultimately fatal illness, and caring for their minor children during the period in which he had to prepare opposition papers.
We wholeheartedly agree with Lerma that "[t]here are times when respect for the human condition dictates a compassionate response to a request for a continuance." (Lerma, supra, 120 Cal.App.4th at p. 711.) Distinctions notwithstanding, that fundamental principle is equally applicable to this case.
V.
DISPOSITION
The judgment is reversed and the matter is remanded for further proceedings. Appellant shall recover costs incurred on appeal.
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FYBEL, J.
WE CONCUR:
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ARONSON, ACTING P. J.
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IKOLA, J.