Opinion
C089033
11-30-2021
ALGRIE BRIDGES et al., Plaintiffs and Appellants, v. AKIBA E. GREEN, Defendant and Respondent.
NOT TO BE PUBLISHED
Super. Ct. No. 34201400157168CUMMGDS
Robie, J.
Plaintiffs Algrie Bridges and her minor child Jordan Alexander Hicks, by and through his guardian ad litem, Sharon Curtis, sued defendant Akiba E. Green, D.O., alleging medical malpractice occurred during Bridges's labor and delivery of Hicks.Over four years after filing the complaint, plaintiffs' attorney withdrew as counsel. Plaintiffs did not find new counsel and did not oppose defendant's subsequent motion for summary judgment. The judge hearing the summary judgment motion granted summary judgment in defendant's favor because the motion was unopposed. Plaintiffs later moved for a new trial, asserting they had obtained newly discovered evidence after the summary judgment hearing and an irregularity in the proceedings occurred as to Hicks, a legally unrepresented minor. Finding the evidence was not newly discovered and no irregularity in the proceedings occurred, the judge hearing the motion denied plaintiffs' motion for a new trial.
The complaint also named Sutter Health Sacramento Sierra Region, doing business as Sutter Memorial Hospital and Sutter Health as a defendant. That defendant is not a party to this appeal.
On appeal, plaintiffs contend the court abused its discretion by granting their attorney's motion to withdraw, denying their multiple motions to continue, and denying their motion for a new trial. We agree with plaintiffs' final contention but only as it pertains to Hicks. We accordingly reverse the order denying Hicks a new trial. We otherwise affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Because the underlying facts of plaintiffs' complaint are not relevant to their appeal, we do not discuss them in detail.
On January 8, 2014, plaintiffs, who were represented by R. Parker White, filed a complaint for damages alleging medical malpractice against defendant. Hicks was a year old when the complaint was filed. On August 14, 2014, defendant answered. Nearly a year later, on July 29, 2015, Nancy Hersh substituted in as plaintiffs' counsel with approval of Hicks's guardian ad litem. After several continuances, mostly requested by plaintiffs, the parties entered into a stipulation on December 28, 2017, agreeing to set trial on January 7, 2019. They also agreed that "to avoid the unintended outcome of the expiration of the 5-year rule before trial in this matter may commence, the parties hereby stipulate to extending the deadline to July 8, 2019, for the express and limited purpose of permitting trial in this case to be set on January 7, 2019, or as soon thereafter as the Court and parties may select . . . ."
On May 22, 2018, Hersh moved to be relieved as counsel for plaintiffs. Hersh declared "[a] breakdown in the attorney-client relationship has occurred. Based thereon, it would be unreasonably difficult for the firm to continue to represent Plaintiffs in this case. To protect the legal interests of the Plaintiffs, if needed, I request an in camera discussion with the Court, to explain the grounds that necessitate relieving [the firm] as Counsel. Plaintiffs have had ample time to locate a new attorney." Bridges filed an opposition to Hersh's request to withdraw, in which Bridges stated she believed it would be difficult to find counsel to represent her and Hicks because Hersh placed an $84,000 lien on their recovery and, in Bridges's conversations with attorneys, the attorneys indicated too much work had already been done on the case for another attorney to take over. Bridges also argued both Hersh's withdrawal and Hersh's representation would adversely affect the case. Thus, Bridges requested the judge hearing the motion remove the lien Hersh placed on plaintiffs' recovery and grant an extension of the trial date to January 2020.
While Bridges premised part of her argument on Hicks's best interests, Hicks's guardian ad litem did not appear to be involved in the withdrawal briefing process, but the guardian ad litem did appear at the hearing on the motion. On June 18, 2018, the judge hearing the motion granted Hersh's motion to withdraw as counsel. The judge further ruled that "[a]lthough plaintiffs have filed an opposition to [Hersh's] motion, this [judge] does not have within the context of this motion the authority to prevent withdrawing counsel from asserting a lien on any recovery in this action. Similarly, plaintiffs' additional request that the current trial date of [January 7, 2019, ] be continued to January 2020 must be denied since a request must be brought by noticed motion before the Presiding Judge . . . and since a January 2020 trial date will be after the expiration of the five year period to bring this matter to trial."
The reporter's transcript of that hearing was not made part of the appellate record.
Three months later, on September 14, 2018, defendant filed a motion for summary judgment. Relying on an expert declaration, defendant argued her treatment of Bridges was not negligent and fell within the standard of care. On November 2, 2018, Bridges filed a motion to continue trial and all related dates with the presiding judge. Bridges later filed a declaration in which Bridges declared she had contacted at least 12 different law offices in an attempt to find legal representation. "The process of speaking with these firms, allowing them to consider the case, addressing my prior counsel's monetary lien regarding costs, and other considerations, has led to months of conversations about these issues with all of these attorneys and law firms. [¶] Finally, on or about October 12, 2018, Benjamin Law Group offered to represent me in this case on the condition that the trial date and Defendants' pending motions must be continued to allow it enough time to substitute into the case and to review the record and materials to prepare for opposing the motions and to prepare for trial with its current trial calendar. New counsel's existing trials and client obligations, as well as a holiday schedule, precludes new counsel from becoming adequately familiar with the current case file to complete any needed discovery and to prepare for trial as currently set. [¶] Plaintiff is unable to properly prepare for trial, present this case to a jury, including obtaining testimony and other evidence necessary for effective and fair prosecution of this case." Defendant opposed the motion.
At the hearing on the motion to continue, Bridges claimed she was appearing for herself and Hicks. Hicks's guardian ad litem was not present. Bridges told the presiding judge she relied on Hersh to represent her and had provided a witness list in September 2015 to Hersh, which Hersh did not disclose to opposing counsel until August 2017. (Hersh then continued to delay investigating plaintiffs' case and scheduling expert witnesses before unexpectedly withdrawing as plaintiffs' attorney. Bridges argued she had diligently sought new counsel and found at least three attorneys to represent her on the condition she get a continuance beyond the date then set for trial. The Benjamin Law Group in particular helped her organize her current continuance request. Bridges also supplied the presiding judge with an unsigned declaration purporting to be from an attorney interested in representing her.
The presiding judge denied Bridges's motion to continue. In a written ruling, the presiding judge reasoned he could not grant a continuance without extending the five-year deadline in which to bring an action to trial. Because Bridges did not show she diligently sought counsel after June 2018, the extension could not be granted. At the hearing, however, the presiding judge indicated to Bridges that if she supplied a declaration signed by an attorney or a motion written by an attorney willing to represent her and Hicks, the analysis would be different and plaintiffs could be entitled to a trial continuance within the stipulated period. While the presiding judge agreed with defendant that the trial stipulation appeared to require the parties to be ready for trial in January 2019, the presiding judge acknowledged it permitted trial to occur any time before July 2019. Thereafter, Bridges did not file a declaration or motion prepared by an attorney willing to represent her or Hicks and failed to file an opposition to defendant's summary judgment motion.
On December 3, 2018, attorney Dale E. McKinney substituted in as Bridges's legal counsel. On December 6, 2018, plaintiffs filed a substitution of counsel form pertaining to Hicks purporting to substitute in McKinney as counsel for him; however, McKinney did not sign it. McKinney appeared for Bridges at the December 7, 2018, hearing on defendant's motion for summary judgment. Bridges was also present, but Hicks's guardian ad litem was not. McKinney explained that he had recently substituted in on the case and requested a continuance of 60 days. He explained he could not assure the court that a continuance for the purpose of responding to defendant's summary judgment motion would be fruitful because he did not know what an expert would say after reviewing the discovery. Noting that the continuance would delay the summary judgment motion until after trial, the judge hearing the motion denied the request for a continuance reasoning that trial continuances needed to be made to the presiding judge. The judge then granted defendant's motion for summary judgment, noting plaintiffs failed to provide evidence rebutting defendant's expert. The case was later dismissed.
On January 24, 2019, plaintiffs filed a notice of intent to file a motion for a new trial, this time represented by attorneys Stephanie J. Finelli and Theida Salazar. In the points and authorities, plaintiffs argued they discovered new evidence supporting the claim defendant's actions fell below the standard of care, "which evidence they did not have and could not have had at the time of the [summary judgment] hearing." That newly discovered evidence was the report and deposition of Dr. Charles Stoopack, who believed defendant's conduct fell below the standard of care. Plaintiffs argued Dr. Stoopack's opinion created an issue of material fact, making summary judgment inappropriate. Plaintiffs further argued summary judgment was improper as to Hicks because he was legally unrepresented at the time the motion was filed and he had no opportunity to oppose it.
Plaintiffs relied predominantly on the declarations of Bridges and Hope Elder, an attorney Bridges contacted to help her communicate with experts. Bridges declared that after Hersh "unilaterally withdrew from the representation on or about June 18, 2018," Bridges did her "utmost to find a replacement attorney, and spoke to many attorneys in both Northern and Southern California." Bridges was unsuccessful from June 18, 2018, until December 2018, when she was briefly represented by McKinney. Bridges declared that "Hersh had provided Defendants with an expert witness disclosure. Unbeknownst to [Bridges], [Hersh] had not paid for the experts' opinions and had not obtained any reports by them, despite the fact that she remained in the case for 11 months after providing the disclosure."
Bridges further declared that when the summary judgment motion was filed, she did not have an attorney and she had no idea what she was supposed to do. She "continued in her efforts to find an attorney, but the pending trial just made that more difficult." In early October, the Benjamin Law Group agreed to represent her and Hicks if she could continue the January 7, 2019, trial. When Benjamin Law Group contacted defense counsel, defense counsel opposed the continuance request. Bridges then sought a continuance herself, which the presiding judge denied "despite the fact that all parties had previously stipulated to waive the five-year statute until July 8, 2019." After briefly hiring McKinney in early December and the granting of defendant's motion for summary judgment, Bridges retained attorney Elder on December 17, 2018, to assist her in contacting expert witnesses because those experts refused to speak with Bridges directly. Because of Elder's assistance, Bridges was able to obtain Dr. Stoopack's December 28, 2018, report and January 4, 2019, deposition, contradicting defendant's expert.
Elder declared she was hired to assist Bridges "in retaining her experts and facilitating their attendance at the depositions that [were] scheduled by Opposing counsel." "A number of witnesses had not been contacted by the previous Attorney since 2017. A number of the experts had not been provided with the necessary documents to complete their reports. All of the experts' residences and place[s] of employment are outside of the county of Sacramento. They were located in either San Diego, Pasadena, Santa Rosa, San Francisco and Santa Barbara outside of the [C]ode [of] Civil Procedure requirements for where depositions can occur for witnesses. [¶] After speaking with each expert, confirming their retainers and depositions fees, the money was overnighted to them and an Expert witness Deposition Schedule was sent to [opposing counsel] on December 18th."
Plaintiffs also attached Dr. Stoopack's deposition to their new trial motion. Dr. Stoopack testified that much of the material he had based his opinion on was sent to him by Hersh. He prepared a report and was being deposed, however, due to Elder's request. When Elder requested his opinion, he "reviewed all of [his] records, the binders, [Exhibits] A, B, C, and D and the notes [he] had taken, the medical literature [he had] provided and [he] assembled [his] thoughts and prepared the report." It took Dr. Stoopack four hours to form and render his opinion.
The judge hearing the motion denied plaintiffs' motion for a new trial. He noted that although Dr. Stoopack wrote the report after the hearing on the motion for summary judgment, he did so based on materials he had obtained before the motion. Citing Shiffer v. CBS Corp. (2015) 240 Cal.App.4th 246, 254-256, the judge held that these facts prevented Dr. Stoopack's opinion from qualifying as "new" evidence. Further, there was no evidence Bridges attempted to communicate with Dr. Stoopack before the hearing on defendant's motion for summary judgment or that he in particular refused to speak with her while she was unrepresented. Indeed, the judge reasoned, "[t]here is no specific evidence . . . that Bridges sought new counsel between Hersh's withdrawal in June and the filing of [defendant's summary judgement motion] in September. It thus appears that Bridges caused some or all of the last-minute scrambling that occurred after the [summary judgment motion] was filed." The judge noted that Bridges never had problems obtaining counsel or filing her own documents right before deadlines, thus the judge was "not persuaded that attorneys' reluctance is a reason Bridges did not produce Dr. Stoopack's opinion before the [summary judgment motion] was heard."
The judge also found summary judgment against Hicks was proper because Hicks had been appointed a guardian ad litem who ensured Hicks was legally represented at the hearing on the summary judgment motion. While McKinney did not sign the substitution of counsel form pertaining to Hicks, McKinney appeared at the summary judgment hearing on Hicks's behalf and argued for a continuance as if he were representing Hicks's interest.
Plaintiffs appeal from the judgment of dismissal.
DISCUSSION
I
There Was No Abuse Of Discretion In Permitting Hersh To Withdraw As Counsel
Plaintiffs contend the judge hearing Hersh's motion to withdraw should have conditioned Hersh's withdrawal from their case upon plaintiffs getting a trial continuance if unable to secure replacement counsel. They analogize their case to Agnew v. Parks (1963) 219 Cal.App.2d 696 and Slaughter v. Zimman (1951) 105 Cal.App.2d 623. In both of those cases the trial court permitted an attorney to withdraw after cautioning the party, who would have been in pro. per. upon the attorney's withdrawal, that no trial continuances would be granted. (Agnew, at pp. 698-699; Slaughter, at pp. 624-625.) Plaintiffs argue that because the judge hearing the motion to withdraw failed to warn them no continuance would be granted and instead referred them to the presiding judge with their requested continuance, the judge was required to ensure plaintiffs were represented before the court ruled against them. We disagree.
Notably, the issue in both cases was whether the trial court abused its discretion in denying a subsequently requested continuance, not whether it was an abuse of discretion to permit the attorneys' withdrawal in the first place. (Agnew v. Parks, supra, 219 Cal.App.2d, at p. 700; Slaughter v. Zimman, supra, 105 Cal.App.2d at p. 624.)
The standard for reviewing a court's decision on a motion to withdraw as counsel is an abuse of discretion. (Manfredi & Levine v. Superior Court (1998) 66 Cal.App.4th 1128, 1133.) "Where issues of confidentiality prevent 'counsel from further disclosure and the court [accepts] the good faith of counsel's representations, the court should find the conflict sufficiently established and permit withdrawal.'" (Ibid.)"' "The appropriate test for abuse of discretion is whether the trial court exceeded the bounds of reason. When two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court." '" (In re Marriage of Rosevear (1998) 65 Cal.App.4th 673, 682.)
From the record provided, it appears the judge hearing the motion to withdraw permitted Hersh to withdraw upon her good faith assurance the attorney-client relationship had broken down and plaintiffs had already been provided time to find new counsel. Bridges did not disagree with these points in her opposition to Hersh's request to withdraw as counsel. Instead, Bridges requested the judge remove Hersh's lien and grant a motion to continue the trial date beyond the five-year deadline. As the law and motion judge noted, both requests fell outside his authority, and also plaintiffs needed to file a motion with the presiding judge for any trial continuance. As far as Hersh's representation was concerned, however, plaintiffs and Hersh agreed the relationship had broken down.
Given these facts, we cannot conclude the judge abused his discretion. Hersh withdrew in June 2018 with trial set for January 2019. The seven months between those dates provided plaintiffs with ample opportunity to obtain counsel to propound, review, and respond to discovery and consult with an expert. Thus, from the judge's perspective, the parties agreed sufficient reason existed for Hersh's withdrawal and plaintiffs had sufficient time to fill in the gaps of their case and proceed to trial before the trial date. Accordingly, there was no abuse of discretion.
II There Was No Abuse Of Discretion In Denying The Motions To Continue
Plaintiffs contend they should have been permitted more time to bring their case to trial and oppose defendant's summary judgment motion. We review a ruling on a motion to continue for an abuse of discretion. (Agnew v. Parks, supra, 219 Cal.App.2d at p. 700; Slaughter v. Zimman, supra, 105 Cal.App.2d at p. 624.) However," '[t]he trial judge must exercise his discretion with due regard to all interests involved, and the refusal of a continuance which has the practical effect of denying the applicant a fair hearing is reversible error.'" (In re Marriage of Hoffmeister (1984) 161 Cal.App.3d 1163, 1169.)
A
The Presiding Judge Did Not Abuse His Discretion By Denying Bridges's Request To Continue Trial
Plaintiffs argue the presiding judge erred by failing to continue trial beyond the January 7, 2019, trial date. They argue the presiding judge mistakenly believed he would have had to continue trial beyond the five-year deadline, which requires a higher standard for granting a continuance, when in fact the parties stipulated trial could be heard any time before July 8, 2019. We disagree.
" 'Judges are faced with opposing responsibilities when continuances . . . are sought. On the one hand, they are mandated by the Trial Court Delay Reduction Act [citation] to actively assume and maintain control over the pace of litigation. On the other hand, they must abide by the guiding principle of deciding cases on their merits rather than on procedural deficiencies. [Citation.] Such decisions must be made in an atmosphere of substantial justice. When the two policies collide head-on, the strong public policy favoring disposition on the merits outweighs the competing policy favoring judicial efficiency. (Cf. Cordova v. Vons Grocery Co. (1987) 196 Cal.App.3d 1526, 1532 . . . [when evaluating dismissal of action for delay in prosecution, policy favoring expeditious administration of justice by compelling prompt and diligent prosecution of actions subordinate to policy favoring trial on merits].)'" (Oliveros v. County of Los Angeles (2004) 120 Cal.App.4th 1389, 1395.)
"Under [Code of Civil Procedure section 583.310, [however, ] an action must be brought to trial within five years after it is filed unless, under section 583.340, subdivision (c), '[b]ringing the action to trial . . . was impossible, impracticable, or futile.' [Citation.] The time during which one of these three conditions exists is excluded from the five-year period. [Citation.] Section 583.340, subdivision (c) must be liberally construed, consistent with the policy favoring trial on the merits." (De Santiago v. D & G Plumbing, Inc. (2007) 155 Cal.App.4th 365, 371.)
Further section references are to the Code of Civil Procedure unless otherwise indicated.
The parties' trial stipulation allowed for an extension of the five-year deadline until July 8, 2019, for the express and limited purpose of permitting trial in this case to be set on January 7, 2019, or as soon thereafter as the Court and parties may select. Given that plaintiffs were unrepresented and not ready to proceed to trial, the presiding judge could not select a trial date beyond January 7, 2019, because it would have been purely speculative that trial could occur on that date. Bridges indicated to the presiding judge she could secure counsel to represent her and Hicks, if permitted the continuance. The presiding judge agreed to consider the continuance request upon the condition Bridges bring a signed declaration from an attorney agreeing to represent plaintiffs. It was not the denial of plaintiffs' requested continuance that resulted in plaintiffs' inability to obtain counsel, but plaintiffs' inability to obtain counsel that resulted in the denial of the continuance. Indeed, the court was willing to revisit Bridges's request once Bridges demonstrated she had counsel. The record does not support plaintiffs' contention the presiding judge was unwilling to extend trial out to the July 2019 deadline, as provided in the parties' stipulation. At the time of the ruling in November 2018, plaintiffs still had several months to obtain representation to take the case to trial. The presiding judge's solution balanced both policies outlined above -- judicial efficiency and resolution on the merits -- by providing Bridges with an incentive to seek and obtain counsel so that her case could be heard.
Plaintiffs argue Bridges was diligent and the presiding judge's finding she did not diligently prosecute her case was unsupported. Not so. While Bridges told the presiding judge that she had contacted attorneys to represent her, she also said three attorneys had agreed to do so. But when asked for proof of this fact beyond her own self-serving statements, Bridges could not supply signed declarations proving her assertions. Further, Bridges had been unrepresented since Hersh's withdrawal in June 2018, five months before the instant hearing. Given Bridges's inability to substantiate her assertions and the long period in which she remained unrepresented, we conclude the evidence supported the presiding judge's finding Bridges did not diligently prosecute her case.
Plaintiffs' reliance on Oliveros v. County of Los Angeles, supra, 120 Cal.App.4th at page 1389 is misplaced. There, the trial court denied a last-minute continuance for the sole reason the court had to comply with a court policy to bring cases to trial within two years. (Id. at 1395.) The court did not balance the interests of resolution on the merits and judicial efficiency, but instead single-mindedly focused on the court's policy. (Id. at p. 1396.) Here, the presiding judge balanced the interests and did not consider only judicial efficiency. He considered the pending five-year deadline, as he must, and Bridges's efforts to obtain counsel. Based on Bridge's assertions she could find counsel to represent her and Hicks, the presiding judge agreed to grant a continuance once plaintiffs showed they were represented. This solution prioritized resolution on the merits and provided plaintiffs with an avenue of presenting their case at trial. Accordingly, there was no abuse of discretion.
B
The Judge Hearing The Summary Judgment Motion Did Not Abuse His Discretion By Denying Plaintiffs' Request For More Time To File An Opposition
Plaintiffs contend the judge hearing the summary judgment motion abused his discretion by denying their request for a continuance to oppose defendant's summary judgment motion because he did not consider McKinney's oral representations and instead required him to file a declaration. Initially, we note we disagree with plaintiffs' factual premise. The judge denied plaintiffs' continuance request because their chosen date was beyond the trial date already set, noting plaintiffs' request needed to be presented to the presiding judge as required by the local rules. (Super. Ct. Sacramento County, Local Rules, rule 2.12(2).) Further, the record does not reflect the judge ignored plaintiffs' reasons for requesting a continuance. McKinney stated he had recently begun representing plaintiffs and needed to review the discovery to determine whether he could retain an expert to rebut defendant's expert. The judge relied on all of these statements when he denied plaintiffs request for more time to oppose defendant's summary judgment motion.
Section 437c, subdivision (h), provides, "If it appears from the affidavits submitted in opposition to a motion for summary judgment or summary adjudication, or both, that facts essential to justify opposition may exist but cannot, for reasons stated, be presented, the court shall deny the motion, order a continuance to permit affidavits to be obtained or discovery to be had, or make any other order as may be just." The party opposing summary judgment who seeks a continuance must show:"' "(1) the facts to be obtained are essential to opposing the motion; (2) there is reason to believe such facts may exist; and (3) the reasons why additional time is needed to obtain these facts." '" (Jade Fashion & Co., Inc. v. Harkham Industries, Inc. (2014) 229 Cal.App.4th 635, 656 [affirming trial court denial of continuance where declaration supporting request did not show specific facts that could be obtained by deposing witness or why facts were essential to opposition]; cf. Chavez v. 24 Hour Fitness USA, Inc. (2015) 238 Cal.App.4th 632, 643-644 [trial court abused its discretion by denying request for continuance to depose witness where "[i]t was apparent from the summary judgment briefing that [the witness] likely possesse[d] unique knowledge regarding the primary dispute"].)" 'The party seeking the continuance must justify the need, by detailing both the particular essential facts that may exist and the specific reasons why they cannot then be presented.'" (Chavez, at p. 643; accord, Cooksey v. Alexakis (2004) 123 Cal.App.4th 246, 254 [" 'It is not sufficient under the statute merely to indicate further discovery or investigation is contemplated. The statute makes it a condition that the party moving for a continuance show "facts essential to justify opposition may exist."' "].) When "a request for a continuance of a summary judgment motion is made on grounds other than the mandatory basis of section 437c, subdivision (h), the court must determine whether the party requesting the continuance has established good cause." (Denton v. City & County of San Francisco (2017) 16 Cal.App.5th 779, 791.)
Neither McKinney nor Bridges provided information of the essential facts that may have existed to support plaintiffs' contemplated opposition to defendant's motion. Indeed, McKinney stated he did not know whether facts existed to justify an opposition to the motion. Further, Bridges and McKinney did not supply reasons for why plaintiffs could not present the evidence at the hearing other than the fact that McKinney had only recently been retained. Thus, the judge did not abuse his discretion by determining plaintiffs had failed to meet the standard of section 437c, subdivision (h). For the same reasons and because the judge hearing the summary judgment motion was precluded from continuing the matter past the trial date under the local rules, the judge did not abuse his discretion by finding no good cause for a continuance.
III The New Trial Motion Should Have Been Granted As To Hicks
Plaintiffs contend the judge hearing their new trial motion abused his discretion by denying their motion for a new trial because of newly discovered evidence. They further contend a new trial should have been granted as to Hicks because of an irregularity in the proceedings or an error in law. We agree with plaintiffs' argument regarding the irregularity in the proceedings as to Hicks. We disagree with the remainder of their argument.
"The authority of a trial court in this state to grant a new trial is established and circumscribed by statute. [Citation.] Section 657 sets out seven grounds for such a motion: (1) 'Irregularity in the proceedings'; (2) 'Misconduct of the jury'; (3) 'Accident or surprise'; (4) 'Newly discovered evidence'; (5) 'Excessive or inadequate damages'; (6) 'Insufficiency of the evidence'; and (7) 'Error in law.'" (Oakland Raiders v. National Football League (2007) 41 Cal.4th 624, 633.)
A
Plaintiffs Failed To Demonstrate They Were Diligent For The Purpose Of Obtaining A New Trial Based On Newly Discovered Evidence
Plaintiffs contend the judge hearing their motion for a new trial based on newly discovered evidence erred because Dr. Stoopack's report and deposition stating defendant acted below the standard of care constituted new evidence and they were diligent in their discovery of it. Because we agree with the judge that plaintiffs were not diligent in discovering the evidence, we need not determine whether evidence of Dr. Stoopack's opinion was new.
Generally, a party seeking a new trial on the basis that evidence is newly discovered must show "(1) the evidence is newly discovered; (2) he or she exercised reasonable diligence in discovering and producing it; and (3) it is material to the . . . party's case." (Plancarte v. Guardsmark, LLC (2004) 118 Cal.App.4th 640, 646.) A movant claiming discovery of new evidence following summary judgment is held to a less demanding standard of reasonable diligence than after trial. (Scott v. Farrar (1983) 139 Cal.App.3d 462, 468.) With respect to whether a new trial should have been granted on the ground of assertedly newly discovered evidence, the standard of review on appeal is abuse of discretion. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 859; Scott, at pp. 468-469.)
In Scott, the party opposing a motion for summary judgment deposed a witness for the first time after the hearing on the summary judgment motion and sought a new trial on the ground that the witness's testimony constituted newly discovered evidence. (Scott v. Farrar, supra, 139 Cal.App.3d at pp. 467-469.) The appellate court reversed the trial court's denial of the new trial motion reasoning that the testimony was unknown to the party prior to the deposition, and the date of the deposition had been set shortly after the inception of the action in the regular course of discovery, which the moving party had pursued with reasonable diligence. (Id. at pp. 468-469.) Conversely, in Doe, the appellate court upheld the trial court's finding of no reasonable diligence and that the evidence was not newly discovered when counsel knew the scope of the expert's opinion at the time of summary judgment but neither submitted the expert's declaration nor sought a continuance to respond to the motion for summary judgment. (Doe v. United Air Lines, Inc. (2008) 160 Cal.App.4th 1500, 1509.) Similarly, in Shiffer the evidence was neither newly discovered nor obtained with diligence when an expert based his opinion on materials in his and the party's possession before the summary judgment hearing. (Shiffer v. CBS Corp. (2015) 240 Cal.App.4th 246, 255-256.)
Plaintiffs conduct must be interpreted in context. At the time of Hersh's withdrawal in June 2018, plaintiffs knew the five-year deadline was approaching and haste was required. On appeal they argue Bridges contacted Dr. Stoopack specifically in August 2018 (two months after Hersh's withdrawal) and he refused to speak to an unrepresented party. In September, defendant filed a motion for summary judgment, and in November Bridges made unsubstantiated claims that she had looked for and had found multiple attorneys willing to represent her and Hicks. Yet in December, when the summary judgment motion was being heard, plaintiffs were represented by a recently retained attorney who had no knowledge of the facts underlying their case, and defendant's motion was granted. Not until 10 days after that hearing did Bridges retain counsel to respond to Dr. Stoopack's August refusal to speak with her. Further, it appears Hicks's guardian ad litem expended zero effort in securing counsel for him to oppose the motion for summary judgment or investigate his case for trial; it instead appears the guardian ad litem relied completely on the inadequate efforts of Bridges.
Plaintiffs efforts in contacting and retaining attorneys were unreasonable in light of the time-sensitive situation in which they found themselves with a five-year deadline approaching. Scott is of limited value given the drastically different circumstances of the litigation. Further, plaintiffs' attempt to distinguish Schiffer is unavailing given the reason the expert was allegedly "new" to plaintiffs was due to their lack of diligence in retaining him. Here, plaintiffs did not act with reasonable haste in retaining an attorney for an expected trial less than a year away. No evidence, other than Bridges's self-serving statements, establish she contacted attorneys before the summary judgment motion was filed or before McKinney appeared on the record in early December. Moreover, after McKinney was retained, plaintiffs did not go back to the presiding judge to request a trial continuance as instructed by the presiding judge and the judge hearing the summary judgment motion. For these reasons, it was not an abuse of discretion for the judge hearing the new trial motion to find plaintiffs did not exercise due diligence in obtaining Dr. Stoopack's expert opinion for the purpose of opposing defendant's summary judgment motion.
B
The New Trial Motion Should Have Been Granted As To Hicks
Plaintiffs contend that, because Hicks was a minor and unrepresented by legal counsel, it was both legal error and an irregularity in the proceedings for the judge to grant summary judgment against him for not opposing defendant's motion. We agree in part.
As it pertains to whether an error in law occurred, plaintiffs fail to cite authority showing a court is precluded from ruling against a party represented by a guardian ad litem without that party also being represented by legal counsel. The cases cited by plaintiffs demonstrate a guardian ad litem cannot represent a minor for the purpose of providing legal representation if the guardian ad litem is not an attorney (J.W. v. Superior Court (1993) 17 Cal.App.4th 958, 969 [a mother may be appointed guardian ad litem for her son but, as such, she may not appear in propria persona on the son's behalf]), and that a guardian ad litem can avoid summary judgment by voluntarily dismissing an action without prejudice when legally unrepresented and unable to file an opposition (Mossanen v. Monfared (2000) 77 Cal.App.4th 1402, 1409-1410). Contrary to plaintiffs' argument, Mossanen does not stand for the proposition that a court is precluded from entering summary judgment against a party represented only by a guardian ad litem who left a summary judgment motion unopposed. "The dispositive issue in [Mossanen was] whether the trial court erred in vacating the voluntary dismissal, without prejudice." (Id. at p. 1408.)
In CLD Construction, Inc. v. City of San Ramon (2004) 120 Cal.App.4th 1141, 1149, a case dealing with a legally unrepresented corporation, which also must be represented by legal counsel to effectuate its rights, the court concluded "that representation of the corporation by an attorney is not an absolute prerequisite to the court's fundamental power to hear or determine a case . . . ." Instead, the appellate court was "persuaded it [was] more appropriate and just to treat a corporation's failure to be represented by an attorney as a defect that may be corrected, on such terms as are just in the sound discretion of the court." (Ibid.) This included dismissal of a corporate plaintiff's complaint in the event "an unrepresented corporation does not obtain counsel within reasonable time." (Id. at p. 1150.) Based on these authorities, we do not agree with plaintiffs that it was error as a matter of law for the judge hearing the summary judgment motion to enter summary judgment against Hicks.
But we do agree with plaintiffs that there was an irregularity in the proceedings, which resulted in the denial of Hicks's right to a fair trial. "Section 657, subdivision (1), of the Code of Civil Procedure provides that a new trial may be granted for an '[irregularity] in the proceedings of the court, jury or adverse party . . . by which either party was prevented from having a fair trial.'" (City of Los Angeles v. Decker (1977) 18 Cal.3d 860, 870.) Courts have recognized "[n]o accurate classification of such irregularities can be made," other than it must involve "an overt act of the trial court, jury, or adverse party, violative of the right to a fair and impartial trial, amounting to misconduct . . . ." (Gray v. Robinson (1939) 33 Cal.App.2d 177, 182.)
"Attorney misconduct is an irregularity in the proceedings and a ground for a new trial." (Garcia v. ConMed Corp. (2012) 204 Cal.App.4th 144, 148.) As is" 'an overt act of the judge which prevents the complaining party from having a fair and impartial trial" (Schrader Iron Works, Inc. v. Lee (1972) 26 Cal.App.3d 621, 638), or the failure to appoint a guardian ad litem where a minor is a party to the action (Pacific Coast etc. Bank v. Clausen (1937) 8 Cal.2d 364, 366). In all cases, however, the party requesting a new trial must show the misconduct was prejudicial to his or her substantial rights and ability to have a fair trial. (Gray v. Robinson, supra, 33 Cal.App.2d at p. 182; Pacific Coast, at p. 366.) "[W]hether, under all the circumstances, an irregularity has materially affected substantial rights and prevented a fair trial is addressed to the discretion of the trial court which, having heard and seen the witness[es] and having knowledge of circumstances which may not be produced in the record, is in better position than the appellate court to determine the effect." (Gray, at p. 182.)
Plaintiffs argue the overt misconduct at issue was the court's failure to fulfill its duty to ensure Hicks's best interests were protected by his guardian ad litem. Specifically, plaintiffs argue the court should have ensured Hicks's guardian ad litem retained counsel following the withdrawal of Hersh and should not have enter summary judgment against him on the basis of the motion being unopposed without first finding that the nonopposition was in Hicks's best interest.
Section 372, subdivision (a), states in relevant part: "When . . . a minor . . . is a party, that person shall appear either by a guardian or . . . a guardian ad litem appointed by the court in which the action or proceeding is pending, or by a judge thereof, in each case . . . . The . . . guardian ad litem so appearing for any minor . . . shall have power, with the approval of the court in which the action or proceeding is pending, to compromise the same, to agree to the order or judgment to be entered therein for or against the ward . . . and to satisfy any judgment or order in favor of the ward . . . or release or discharge any claim of the ward . . . pursuant to that compromise."
" 'A guardian ad litem is not a party to an action, but merely the representative of record of a party.' [Citation.] He or she 'represents the interests of a person in legal proceedings who lacks capacity to represent himself or herself. . . .' [Citation.] But while a guardian ad litem's role is as a representative of the ward, he or she does not act as an advocate, and does not simply represent the ward's wishes. 'The court is, in effect, the guardian of the minor and the guardian ad litem is but an officer and representative of the court. [Citation.]' [Citation.]
"While the guardian ad litem has the power to assent to procedural steps that will facilitate a determination of the ward's case [citation], the guardian ad litem's authority is that of' "an agent with limited powers." [Citation.]' [Citation.] For example, when a guardian ad litem believes that settling a case is in the ward's best interests, that decision requires court approval. [Citation.] The court has a duty to ensure that the ward's rights are protected by the guardian ad litem. [Citation.] The guardian ad litem, therefore, when representing [a minor], is in a similar role to a conservator, who derives his or her authority from the power of the state to protect incompetent persons." (McClintock v. West (2013) 219 Cal.App.4th 540, 549-550.) Thus, guardians ad litem enjoy quasi-judicial immunity when acting within the scope of their authority. (Id. at p. 550.)
The appointment of a guardian ad litem is subject to ongoing court supervision and the removal of a guardian ad litem is a matter within the court's control to be exercised as part of its inherent powers. (Estate of Hathaway (1896) 111 Cal. 270, 271 ; In re Marriage of Caballero (1994) 27 Cal.App.4th 1139, 1148-1149.) The guardian ad litem's powers are thus subject to both the fiduciary duties owed to the minor and the requirement that court approval be obtained for certain acts. (J.W. v. Superior Court, supra, 17 Cal.App.4th at p. 965.) "Should a guardian ad litem take an action inimical to the legitimate interests of the ward, the court retains the supervisory authority to rescind or modify the action taken." (Regency Health Services, Inc. v. Superior Court (1998) 64 Cal.App.4th 1496, 1502.)
Here, the court fell short in fulfilling its duty to Hicks to ensure his rights were protected by his guardian ad litem. The court did not appear to be aware of its duty to Hicks or that it had the power to oversee and remove an ineffective guardian ad litem. Neither the presiding judge nor the law and motion judge hearing the summary judgment motion inquired into the progress of Hicks's case outside of the context of Bridges's case or inquired about the absence of Hicks's guardian ad litem. It appears the court, and the guardian ad litem, deferred to Bridges to secure legal representation for Hicks and the court later held Hicks to answer for Bridges's conduct. But although Bridges was Hicks's mother, she was not his guardian ad litem and tasked with representing his interests for the purposes of these legal proceedings. That duty fell to Hicks's guardian ad litem as an officer of the court, who must answer to the court and seek approval for various decisions affecting the minor's substantial rights, including the decision to settle or waive trial. (§ 372, subd. (a); In re Christina B. (1993) 19 Cal.App.4th 1441, 1453-1455.) Indeed, if the guardian ad litem took any action inimical to Hicks's interest, the court retained the supervisory power to rescind or modify the action. (Regency Health Services, Inc. v. Superior Court, supra, 64 Cal.App.4th at p. 1502.)
The guardian ad litem's conduct of leaving defendant's summary judgment motion unopposed was an act requiring court supervision and approval. It was foreseeable this conduct would result in a ruling adverse to Hicks's interests and the ultimate dismissal of his case. Hicks's substantial rights were at issue, much like when a case is settled, or trial is waived. All such actions by a guardian ad litem have the effect of disposing of an action without the presentation of evidence to a neutral arbiter of the party's choice. Thus, the court owed Hicks the duty to determine whether leaving a motion for summary judgment unopposed, which was likely to result in dismissal of Hicks's case, was in Hicks's best interest. Because it appears the court was unaware of its duty to Hicks, an irregularity in the proceedings occurred.
Having established there was an irregularity in the proceedings, plaintiffs must also establish resulting prejudice and the denial of a fair trial. (Gray v. Robinson, supra, 33 Cal.App.2d at p. 182.) Under the facts of Hicks's case, we conclude that showing has been made. Pacific Coast and King are instructive. (Pacific Coast etc. Bank v. Clausen, supra, 8 Cal.2d at p. 364; King v. Wilson (1931) 116 Cal.App. 191.) Both cases pertain to the court's failure to appoint a guardian ad litem to represent a minor party. (Pacific Coast, at pp. 365-366; King, at p. 193.) While the issue was slightly different than the one before us now, the cases provide a framework within which to analyze whether a minor was adequately represented for the purposes of receiving a fair trial. In King, a minor over 20 years old sat through a trial, represented by counsel, and failed to disclose his minority until after judgment. His request for a new trial was denied and the appellate court determined it was not an abuse of discretion to deny the motion. (King, at pp. 194-195.) In Pacific Coast, a minor, nearly 19 years old, and having a general guardian, was served with a summons in an action involving her property. The guardian, her mother, and her sister were similarly served and all defendants decided there was no defense and defaulted. The minor attacked the judgment without any showing her guardian was negligent or fraudulent, and without any claim a valid defense to the action existed at the time of suit. Our Supreme Court concluded no prejudice occurred. (Pacific Coast, at pp. 365-366.) In both cases the minors were old enough to understand the legal proceedings they were a party to, they had either legal counsel or a guardian also involved in the legal proceedings, and were not able to demonstrate they were prejudiced by the failure of appointing a guardian ad litem.
Both cases were decided when the age of majority was 21 years old, and not 18 years old. (Ganschow v. Ganschow (1975) 14 Cal.3d 150, 152 ["By statute effective March 4, 1972, California reduced the age of majority from 21 years to 18 years of age"].)
In contrast, Hicks was substantially younger than the minors in King and Pacific Coast. Indeed, Hicks was a year old when the litigation was initiated and six years old at the time of entry of judgment against him. In short, Hicks had little to no control over the legal proceedings and could not protect his own interests in the event his guardian ad litem failed to do so. Also, Hicks has shown that his general guardian and his guardian ad litem failed to adequately represent his interests. The presiding judge and judge hearing the summary judgment motion denied multiple continuances and the new trial motion because Bridges and the guardian ad litem did not diligently seek and retain legal counsel to oppose the summary judgment motion. Thus, unlike the minors in King and Pacific Coast, Hicks had no one dutifully looking out for his interests. Finally, Hicks has shown his general guardian's and guardian ad litem's conduct prejudiced him by preventing a valid theory of liability supported by expert testimony that defendant fell below the standard of care from being presented to the court and defeating defendant's motion for summary judgment. Had the court overseen Hicks's guardian ad litem in securing legal counsel to oppose the summary judgment motion, that legal counsel could have promptly presented Dr. Stoopack's opinion or the opinion of another expert from Hersh's expert witness disclosure in opposition to defendant's summary judgment motion, thereby creating an issue of material fact and avoiding dismissal. Accordingly, the judge hearing the new trial motion abused his discretion by denying Hicks's motion based on an irregularity in the proceedings.
DISPOSITION
The court's order denying a new trial is reversed as to Hicks. We otherwise affirm. The parties shall bear their own costs on appeal. (Cal. Rules of Court, rule 8.278(a)(5).)
We concur: Raye, P. J. Renner, J.