Metropolitan News-Enterprise


Monday, December 30, 2002


Page 3


Lack of Separate Statement Didn’t Justify Summary Judgment for Opponent — C.A.


By a MetNews Staff Writer


Los Angeles Superior Court Judge Richard A. Adler erred in granting summary judgment in favor of a defendant based on the plaintiff having failed to attach a separate statement of undisputed facts, the Court of Appeal for this district ruled Friday.

The plaintiff’s attorney, in moving for relief from the summary judgment pursuant to Code of Civil Procedure Sec. 473(b) based on mistake and excusable neglect, explained that no separate statement was attached because he thought it was unnecessary under the circumstances. He pointed out that the issue raised by the defendant in its motion for summary judgment was strictly a legal one, the issue being whether the action, based on purported violations of a state statute, was preempted by federal law.

Friday’s opinion, which was not certified for publication, stopped short of embracing the proposition that a separate statement is not necessary under that circumstance. It did make clear, however, that in that context, where a trial court rejects the moving party’s legal proposition, it abuses it discretion in granting summary judgment based on the failure of the opposing party to attach a separate statement.

 Div. Eight’s opinion, by Justice Lawrence D. Rubin, reinstates the action by El Rey Ensch against Top Notch Club Towing and others based on an allegedly unfair business practice of the defendant. Its trucks tour neighborhoods in which it has obtained general authorizations from landowners to tow vehicles illegally parked on their premises.

Ensch, whose car was towed when he parked illegally for a few minutes while buying a newspaper, had to pay Top Notch $98.55 to regain possession of the vehicle. He brought an action under the private attorney general statute for injunctive relief and damages.

Ensch pointed to Vehicle Code Sec. 22658 which forbids the towing of vehicles based on blanket authorizations, and requires that the towing be specifically directed by the property owner in any given instance. Top Notch insisted that there was federal preemption under the Federal Aviation Administration Authorization Act of 1994 — a contention Adler rejected, and which the Court of Appeal found unnecessary to discuss.

Rubin wrote:

“Here, the sole ground of Top Notch’s motion for summary judgment was that Ensch’s claims were ‘preempted by the dictates of federal law, are not subject to regulation by state law and are therefore barred.’ This purely legal issue required little, if any, evidentiary support. In fact, the trial court actually found Ensch’s claims were not preempted by the federal law, thus demonstrating how little help a separate responsive statement would have been in this particular case. Under these circumstances, the trial court abused its discretion in granting the motion on the grounds that Ensch did not file a separate statement.”

Adler had pointed to factual contentions raised in Top Notch’s separate statement which Ensch failed to counter. Rubin remarked:

“[U]ndisputed fact No. 8 does not support the granting of summary judgment. First of all, it has nothing to do with federal preemption. Secondly, even if fact No.†8 were true, it does not fully dispose of plaintiff’s claims.”

Rubin said that in light of the conclusion that Adler erred in granting summary judgment, Ensch’s contention that Adler should have granted relief pursuant to Sec. 473 was moot. He did, however, make note in his discussion of the facts of Adler’s comments in his written order denying relief.

Quoting Mark Twain, Adler said:

“It ain’t what you don’t know that gets you into trouble. It’s what you know for sure that just ain’t so.”

He went on to say:

“This case concerns [Ensch], who claims he was subjected to illegal charges when he parked his automobile where properly worded signage advised him to the contrary. It appears that [Ensch] then hired an attorney who, like his client, decided that it was not necessary to follow existing rules.”

The case is Ensch v. Top Notch Club Towing, B158414.

Timothy W. Kenna and Arturo T. Salinas of Wilson, Kenna & Borys represented Ensch. David B. Pillemer and Robin F. Genchel of Mandel & Pillemer acted for Top Notch Club Towing.

Genchel said of the Court of Appeal’s ruling: “I’m not surprised.”

She noted that a separate appeal is pending in which Ensch is contesting Adler’s action in disallowing him from seeking damages for “every single person ever towed” by Top Notch. If that action is affirmed, she said, Ensch will be limited to his own damages of $98, and it might, at that point be possible to settle the case.

Attorneys for Ensch were unavailable for comment.


Copyright 2002, Metropolitan News Company