Metropolitan News-Enterprise


Wednesday, September 7, 2016


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Attorney’s Impairment Is Ground to Set Aside Ruling—C.A.

Panel Applies Code Section to Grant of Summary Judgment




A Sonoma Superior Court judge did not abuse his discretion by setting aside a summary judgment ruling after the losing attorney presented evidence that he was suffering from a drug-related impairment that caused him to overlook critical evidence, the First District Court of Appeal has ruled.

Div. Four Friday upheld Judge Gary Nadler’s decision to reinstate Christopher Minick’s suit against the City of Petaluma. Minick claims the city was liable for injuries he suffered when he fell from his bicycle during a charity ride.

He retained Dolan Law Firm, which has offices in San Francisco and Oakland. The case was assigned to an associate, Joshua Watson.

In August 2013, the city moved for summary judgment, arguing there was no evidence of its responsibility for a dangerous condition of public property. In opposition, Watson presented some low-resolution black-and-white photographs of the site, a copy of a police report including a statement by a friend of Minick claiming to have seen a pothole in the street where Minick fell, and a declaration from an engineering expert opinion that the fall was caused by a defect in the street.

The motion was set for hearing in January 2014, but Watson took ill in court and was taken to a hospital by ambulance. The hearing was continued for two months, and Nadler granted the motion after taking it under submission for several weeks.

Photographs Inadmissible

The judge ruled that the accident site photographs were inadmissible on grounds of hearsay and lack of foundation, and said they had little evidentiary value in any event because the images were of poor quality. He said the engineer’s declaration lacked foundation and was speculative, since he had no direct knowledge of the site and relied solely on the police report and the dubious photographs.

Five weeks after Nadler ruled, the plaintiff moved for discretionary relief from summary judgment under Code of Civil Procedure §473(b). He explained that he had serious health problems in 2013, that he was on 12 different medications and underwent numerous tests, and that the drugs had significant side effects.

His representation of Minick, he said, was seriously affected by those side effects, which clouded his judgment and impacted his memory. He was unaware of those impacts at the time, he said, and didn’t tell clients or colleagues.

He also presented additional evidence supporting Minick’s personal injury claim, including a declaration from his friend, Christopher Erwin, describing the fall and establishing that Minick was an experienced and safe rider. Erwin also included his observations of the street after Minick was taken from the scene, describing it as cracked and bumpy and having many holes.

New Declaration

The plaintiff also presented a declaration from the person who took the photographs, describing the poor condition of the road. He also submitted a clearer set of photographs and a supplemental declaration from the engineer.

In setting aside the judgment, Nadler said he had been concerned about the surprisingly poor quality of the original opposition, and that if the new evidence had been presented then, he would have denied the motion.

He found that “Mr. Watson . . . was suffering from a medical state that he was generally unaware of and there was some neglect that was involved in that.” The judge said he “does understand that [Watson] had a medical condition, that the medication condition affected his ability to exercise proper judgment, that he provided pleadings, filed pleadings and acted in such a manner that is contrary to his own practice, that the inadvertence and neglect were the result of a medical condition that he later became aware of” and that those were sufficient reasons to grant relief.

C.A. Opinion

Justice Jon Streeter, writing for the Court of Appeal, said that Nadler acted within “the bounds of reason” in granting the statute, so there was no cause for reversal. It is well established, he said, that an attorney’s “cognitive incapacity” is grounds for relief, and that the statute’s reach is not limited to defaults and default judgments.

He distinguished Transit Ads, Inc. v. Tanner Motor Livery, Ltd. (1969) 270 Cal.App.2d 275, which held that a lawyer’s reaction to diet drugs, which kept him out of his office for long periods of time, did not excuse his failure to answer a complaint or to arrange to have someone else do so for him.

Streeter noted that Transit Ads was decided before the statute was amended to mandate relief when the default is the fault of counsel and not the client, so the case would likely be decided differently today. But even under the discretionary aspect of the statute, the cases differ, the justice said, because Watson was found to have been unaware of his impairment and there was a specific finding that the impairment caused the deficient opposition.

Streeter also rejected the city’s argument that it will be unduly prejudiced by the setting aside of the judgment. There is nothing particularly unfair in requiring the city to litigate anew issues that the grant of summary judgment would have resolved, he said.

The city, he wrote, “puts greater stock in the finality of an interim order than is warranted.”

The case is Minick v. City of Petaluma, 16 S.O.S. 4539.


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