Metropolitan News-Enterprise


Tuesday, May 30, 2017


Page 1


Court of Appeal Holds:

Judge Erred in Denying Summary Judgment by Incorporating by Reference Lawyer’s Argument


By a MetNews Staff Writer


A trial court, in denying a motion for summary judgment, does not satisfy the obligation to state its reasons by merely incorporating by reference statements made in opposition at the hearing on the motion, the Fourth District Court of Appeal has ruled.

Div. One of that district on Thursday, in partially granting a petition for writ of mandate sought by the defendants, the law firm of Anderson & Anderson and attorney Steven A. Micheli, faulted San Diego Superior Court Judge John S. Meyer for denying summary judgment without complying with Code of Civil Procedure §437c(g) which requires:

“Upon the denial of a motion for summary judgment on the ground that there is a triable issue as to one or more material facts, the court shall, by written or oral order, specify one or more material facts raised by the motion that the court has determined there exists a triable controversy. This determination shall specifically refer to the evidence proffered in support of and in opposition to the motion that indicates that a triable controversy exists.”

Meyer’s explanation, in a minute order, was simply:

“After considering the arguments made at the hearing, the Court determines that there are triable issues of material fact as to the issue of causation.”

In his tentative ruling, he had indicated an intention of granting summary judgment to the law firm and to Micheli, defendants in an action by former client Guido DiMitri for malpractice. While rejecting a statute of limitations defense, Meyer based his tentative decision in favor the defendants on the ground that their representation of DiMitri in a trial court proceeding did not cause the Court of Appeal’s reversal of a post-trial order that was favorable to him.

Writing for the appeals court, Justice Gilbert Nares said in last week’s opinion:

“The trial court’ minute order here did not comply with the statute. Although it adopted the tentative ruling’s comprehensive discussion of the statute of limitations, it did discuss any facts or refer to any evidence on the issue of causation. Because Anderson asserted causation as a separate and independent ground for summary judgment, the statute required the trial court to explain why Anderson was not entitled to summary judgment on that ground. The trial court did not do so.

“The DiMitris’ [sic] informal response argues that ‘a fair reading of the minute order is that the respondent court agreed with the arguments made by DiMitri’s counsel at oral argument, and concluded that there are triable issues of material fact on the issue of causation for the reasons discussed at oral argument.’ We disagree. While it is possible the trial court fully agreed with DiMitri’s counsel, it is possible it did not. And, in any event, a trial court’s general reference to the arguments and papers of the prevailing party is insufficient to comply with the statute.”

The case is Anderson & Anderson v. Superior Court, D072104.


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