Trial court erred in failing to grant continuance where plaintiffs' attorney was incapacitated by serious health condition

Law Reporter, Oct 2004

Lerma v. County of Orange, 15 Cal. Rptr. 3d 609 (Ct. App. 2004).

A California appellate court held that a trial court abused its discretion in denying plaintiffs' motion for a continuance where plaintiffs' attorney was incapacitated from cancer surgery at the time he was served with a motion for summary judgment.

Here, the family of a man killed in an automobile accident sued a county and city, among others, for his wrongful death. On November 26,2002, the city moved for summary judgment. The motion was set for hearing on December 24,2002. Plaintiffs filed an opposition and a request for continuance of the motion based on their attorney's serious health condition.

In his declaration in support of the request, the attorney stated he was served with the motion on the day he was admitted to the hospital for cancer surgery and he had not seen or become aware of the motion until December 7, 2002, when he returned home. He also stated that although he had not been able to obtain the evidence and declarations needed to oppose the motion, he believed he would be able to do so. The court denied plaintiffs' request for a continuance and granted summary judgment.

Reversing, the appellate court first noted that plaintiffs were not entitled to a mandatory continuance under Cal. Civ. Proc. Code § 437c(h) because that section requires that the declaration in support of a continuance detail the specific facts that would show the existence of controverting evidence. Here, the court noted, the only declaration offered by plaintiffs was the attorney's assertion that he believed he could obtain the necessary evidence to successfully oppose the summary judgment motion; he did not describe what the evidence was. Noting that § 437c(h) requires more specificity, the court said the lower court properly concluded the continuance was not mandatory.

Nevertheless, the court said, when a continuance is not mandatory, the court must determine whether the requesting party has established good cause for one. Factors to consider include death or illness of the attorney. Here, the court said, the attorney's dire medical condition was clear, and, therefore, good cause existed.

The court rejected the county's argument that because the summary judgment motion was scheduled for hearing just 90 days before the trial date, plaintiffs' attorney should have already had on hand the evidence necessary to oppose the motion. That the evidence should have been on hand does not mean that the attorney, recuperating from surgery, had the physical ability to sort through the evidence, prepare it, and file a thorough document with the court.

Accordingly, the court remanded.

Plaintiffs' Counsel

Robert W. Ragsciale, Anaheim, CaI.

Gary T. Mason, Mission Viejo, Cal.