Metropolitan News-Enterprise


Wednesday, April 17, 2019


Page 3


Court of Appeal:

Summary Judgment Improper Based on Procedural Oversight

Riverside Superior Court Judge James T. Latting Faulted for Torpedoing Case Because Exhibits Were Not Attached to Plaintiff’s Opposition


By a MetNews Staff Writer



Riverside Superior Court Judge

A Riverside Superior Court judge went too far in granting the defendants’ motion for summary judgment because the plaintiff had neglected to attach to his opposition most of the documents to which he made reference in his separate statement, Div. Two of the Fourth District Court of Appeal has determined.

The opinion, filed Monday and not certified for publication, was authored by Justice Frank J. Menetrez. It reverses a decision by Judge James T. Latting.

Menetrez recited that six days after filing his opposition, plaintiff William Prado filed a “notice of errata” to which he attached the documents which, his attorney said, were omitted through “inadvertence.” The documents were provided after the statutory deadline for opposition.

The most crucial of the documents was Prado’s deposition, upon which he relied in disputing the defendants’ version of events that took place in a bar in the Dominican Republic. He and the defendants had traveled there to attend a wedding.

While the defendants insisted that Prado was drunk and that they never touched him, Prado, who is suing for assault and battery and intentional infliction of emotional distress, asserted in his deposition that they attacked him.

Disregarded Late-Filed Papers

Latting granted summary judgment to defendants Rick Sanchez, Paul Sanchez, and Dominic Teran, noting that he had “disregarded the untimely documents filed by Plaintiff in the form of a belated ‘errata’ ” and had “considered only the papers and evidence submitted in a timely fashion by the parties.”

Explaining the reversal, Menetrez said that Latting acted “on the basis of a procedural defect in Prado’s opposition papers,” that the defect stemmed from “counsel’s curable error,” and that the judge’s action contravened the policy that cases should be tried on the merits. He wrote:

“The court’s order amounting to a terminating sanction was error because none of the circumstances justifying such a sanction existed. There was no showing that Prado’s late filing was willful. Indeed, counsel stated that she inadvertently omitted the evidence, and she sought to correct the error as soon as she realized it. Likewise, there was no indication that Prado had previously abused pretrial procedures.”

Lack of Necessity

Menetrez continued:

“And there was no showing that less severe sanctions would be inadequate. The trial was still one month away at the time of the summary judgment hearing. The court could have continued the hearing to allow defendants to file a new reply memorandum taking account of the deposition excerpts and interrogatory responses, and the court could have assessed fees and costs against Prado as a sanction for the late filing.”

The error was prejudicial, he declared, because it was “reasonably probable” that if Latting had taken statements in Prado’s deposition into account, he would have seen that in light of the conflicting accounts of the altercation, there were triable issues of fact.

The case is Prado v. Sanchez, E070030.

Culver City attorneys and Anthony Willoughby and Anthony Willoughby II represented Prado. Palm Desert practitioner Paul M. Stoddard acted for the defendants.

Latting, appointed to his post by then-Gov. Jerry Brown on Nov. 12, 2014, has been reversed four times by the Fourth District’s Div. Two, affirmed by it seven times, and one appeal was dismissed.

Anti-SLAPP Motion

 The judge was reversed on July 13 of last year, in an unpublished opinion, after he ruled that an anti-SLAPP motion was moot because, in acting on a contemporaneously filed demurrer, he struck the complaint on the ground that it was not properly verified, granting leave to amend.

 Presiding Justice Manuel A. Ramirez agreed with the defendants, Douglas Humphrey and others, that Latting erred, proclaiming “that the SLAPP motion was not moot.”

He pointed out that “the filing of a SLAPP motion freezes the pleadings” and “the defendant is entitled to have its SLAPP motion adjudicated based on the pleadings as they stood when the SLAPP motion was filed.”

Ramirez said that by granting leave to amend, Latting afforded the plaintiff, Richard L. Johnson, “an opportunity to attempt to amend around the SLAPP motion.” He observed:

“ Admittedly, at the time, the most likely scenario was that he would refile an identical complaint, with a corrected verification. Even if so, it was ruinous to judicial economy to allow this. Humphrey would have to refile his SLAPP motion. Johnson would get to file a new (and possibly improved) opposition. And the trial court would still have to rule on the motion. Moreover, Johnson was not required to file an identical complaint, and as things turned out, he filed a somewhat different complaint. Thus, he enjoyed the very opportunity to amend that is prohibited.”

Fees Improperly Awarded

In a June 13 opinion last year, which was published, Ramirez said that Latting imposed attorney fees on a party pursuant to three statutes, none of which was applicable.

A lender, Stabilis Fund II, sued the owners of an apartment complex in a foreclosure action. The City of Indio intervened, seeking an order that the receiver cause certain conditions of the premises which it alleged to be nuisances to be remedied; the lender wanted the foreclosure to proceed.

Latting granted the city’s motion; the city sought attorney fees and expenses as the prevailing party; the judge awarded it awarded $98,190.47, to be paid out of the receivership estate, ordering that if there were insufficient funds in the estate, Stabilis would make up the difference.

Ramirez found error, setting forth:

“Stabilis appeals. Its central position is that it is only the lender; if anyone is liable for attorney fees and expenses, it should be the owners. More specifically, it argues that none of the three statutes cited by the City authorizes the trial court’s award of attorney fees and expenses against it under the circumstances of this case. We agree.”

Other Reversals

Ramirez also wrote for his panel on Feb. 14 of last year in finding, in an unpublished opinion, that Latting erroneously granted judgment on the pleadings to an insurer in an action over a $2.6 million claim.

Justice Richard T. Fields was the author of an Oct. 4, 2017 opinion reversing a default judgment against Equity Trust Company, sued as custodian of an individual retirement account (“IRA”). Equity forwarded the summons and complaint to the owner of the IRA, which was responsible for defending against the action, but used an old address.

The owner did not receive notice until after a default judgment had been entered. Latting denied discretionary relief to Equity which it sought under Code of Civil Procedure §473(b) based on “mistake, inadvertence, surprise, or excusable neglect.”

Fields said that under “well-established principles,” Latting abused his discretion in denying relief, remarking:

“Equity should not suffer a judgment against it—here, over $145,000—without a hearing on the merits.”


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