Metropolitan News-Enterprise


Wednesday, July 14, 2004


Page 1


Denial of Continuance to Ill Lawyer Held Abuse of Discretion


By a MetNews Staff Writer


An Orange Superior Court judge abused his discretion by denying a continuance to a lawyer who said he was unable to file a complete and timely response to a summary judgment motion following cancer surgery, the Fourth District Court of Appeal ruled yesterday.

“There are times when respect for the human condition dictates a compassionate response to a request for a continuance,” Justice Eileen Moore wrote for Div. Three. “This is one of those times.”

The panel overturned a summary judgment in favor of Orange County and the City of Rancho Santa Margarita and sent the case back to the trial court. The family of Garrett Lerma, who died in a December 2000 auto accident in the city, claims that failure of the city and county to control overgrown vegetation in the area of Los Alisos Blvd. and State Road 241 obscured driver visibility and contributed to the accident.

The city argued that it had design immunity, that it lacked notice of any dangerous condition, that there was no dangerous condition, and that the actions of other drivers in the accident constituted intervening, superseding negligent acts.

The motion was set for hearing on 28 days’ notice, the minimum allowed by statute at the time. The county joined in the motion the next day.

Set for Hearing

Two weeks before the scheduled hearing, plaintiffs’ attorney Robert W. Ragsdale filed an opposition and request for continuance. He attached a declaration explaining that he was admitted to a hospital for emergency kidney surgery the day before the motion was filed, had scheduled surgery for bladder cancer three days later, spent another 10 days in the hospital, and would be out of work for another six to eight weeks.

Because he was in the hospital when the motion for summary judgment was filed, he did not see it until two weeks later, three days before he filed the opposition, he explained.

“Obviously, I have not been able to obtain the evidence and declarations necessary to oppose the city’s motion,” he declared. “I believe that I will be able to obtain the necessary evidence and declarations to successfully oppose the motion and establish a triable issue of fact to each of the claimed undisputed facts raised by the city.”

Motion Denied

Orange Superior Court Judge Randell Wilkinson denied the continuance and granted summary judgment, finding that both entities had design immunity and that the city lacked actual or constructive notice of the alleged dangerous condition.

In response to the appeal, the city and county argued that the motion to continue was properly denied because Ragsdale failed to specify what facts he intended to rely on to support his opposition, as required by Code of Civil Procedure Sec. 437c. 

Such specificity is normally required, Moore acknowledged. “The statute cannot be employed as a device to get an automatic continuance by every unprepared party who simply files a declaration stating that unspecified essential facts may exist,” the justice wrote.

The trial judge was correct in ruling that the motion failed to state specific facts, Moore wrote. “This was not, however, where the analysis should have ended,” she explained, because the statute still allows the judge to grant a continuance if there is good cause.

The justice rejected the argument that Ragsdale could have marshaled his evidence following his discharge from the hospital.

“The defendants seem to overlook the fact that, even if all the necessary evidence was contained in files located only 10 feet away from the attorney’s desk, there are times when walking those 10 feet, lifting each individual file, and searching through documentation to find each specific item of evidence, is simply beyond human ability,” Moore—a combat nurse during the Vietnam War—wrote.

“The fact that the incapacitated attorney filed anything at all was nothing short of heroic,” the justice continued. “The request he filed unquestionably showed good cause for a continuance and the court abused its discretion in denying the request.”

Wilkinson also erred in allowing the county to join in the motion less than 28 days before the hearing, Moore said.

Ragsdale told the MetNews the ruling will give him and his clients “all we wanted,” a chance to present percipient and expert testimony regarding the effect of the vegetation on driver visibility at the time of the accident.

“I think there’s real merit” to the case, he commented.

The attorney said he continues to practice law on a limited basis, but is working out of his home because setbacks have left him paralyzed from the waist down. ”I’ve got to earn a living for my family,” he explained, and is doing so with “assistance from some good attorneys,” including Mission Viejo practitioner Gary T. Mason, who worked with him on the appeal.

 The case is Lerma v. County of Orange, 04 S.O.S. 3593.


Copyright 2004, Metropolitan News Company