Opinion
G032037.
10-23-2003
ROGER ANSON, Plaintiff and Appellant, v. CITY OF BUENA PARK et al., Defendants and Respondents.
Roger Anson, in pro. per., for Plaintiff and Appellant. Richards, Watson & Gershon, Robert C. Ceccon and Michael P. Coyne for Defendants and Respondents.
OPINION
Before Sills, P. J., Rylaarsdam, J., and Moore, J.
Roger Anson appeals from the summary judgment granted in favor of defendants City of Buena Park, and police officers Thomas Reyes, Brian McConnell, and Sergio Lepe. We affirm the judgment.
I
Anson was arrested by police officers for the City of Buena Park for violation of a city ordinance that prohibits persons from sleeping in vehicles on public streets between dusk and dawn. When a jury acquitted him of the misdemeanor charges, Anson filed a civil complaint for false imprisonment, violations of civil rights, malicious prosecution, trespass to chattel, conversion, and invasion of privacy. The city and the arresting officers were named as defendants.
Defendants moved for summary judgment. They argued, among other things, that the complaint was barred by the doctrine of collateral estoppel and the statute of limitations. Anson did not file opposition to the motion. Rather, about one week prior to the hearing, he filed an ex parte motion to continue both the hearing on the summary judgment motion and the trial. His one-sentence declaration in support of a continuance merely stated he was in propria persona and listed the motion and trial dates. In his memorandum of points and authorities he only stated he "has not had sufficient time to review defendants citations and respond," the city had "agreed to provide plaintiff a copy of plaintiffs deposition and defendant has not responded to requests for production," and he "does not have sufficient time to respond to defendants motion for summary judgment and prepare for discovery prior to trial." The superior court denied the motion without prejudice.
At the hearing on the motion for summary judgment, Anson told the court he intended to "go through the defenses summary judgment motion to address it in detail" because there are triable issues of fact. The court pointed out no opposition had been filed and said, "Im just not going to consider oral argument out of the blue as valid opposition to a motion." Anson responded, "Thats going to be a problem because I wasnt aware I could even file written opposition." When the court stated it intended to grant the motion, Anson asked whether it was "willing to hear oral argument . . . at this time." The court answered, "It really isnt oral argument. You cant say, `I think Ill lay in wait, not write anything, not do anything, then come in, tell the judge why the moving party is wrong, giving that person no opportunity to reply nor me any chance to read and evaluate what you would have said in writing. [& para;] I will not allow you to make remarks attacking his motion because the motion was unopposed." Concluding the defendants had met their burden of proof, the court granted the motion and judgment was entered for defendants.
II
On appeal, Anson makes two arguments. He asserts the trial court abused its discretion in "denying plaintiffs motion for continuance" and in "denying plaintiff oral argument." Neither argument is persuasive.
A
The motion for a continuance was made and ruled on in 2002. At the time, Code of Civil Procedure section 437c, subdivision (h), provided that a request for a continuance had to be made by affidavit submitted with the opposition to the motion for summary judgment (see Thatcher v. Lucky Stores, Inc. (2000) 79 Cal.App.4th 1081, 1083), and the affidavit had to make a good faith showing a continuance was necessary to obtain facts essential to the opposition (see Hill v. Physicians & Surgeons Exchange (1990) 225 Cal.App.3d 1, 7-8). If a party submitted a proper declaration that met the requirements of this section, courts were obligated to grant the motion. (Bahl v. Bank of America (2001) 89 Cal.App.4th 389, 395-396.)
Effective January 1, 2003, a second sentence was added to subdivision (h) that provides a continuance may be requested by ex parte motion. However, it must still be made "on or before the date the opposition response to the motion is due."
The superior court was not mandated to grant the motion for a continuance here. The declaration Anson submitted was woefully inadequate—it merely listed the dates and times for the hearing and trial—and it was not submitted with the opposition to the motion. In addition, the court did not abuse its discretion in denying the motion. Ansons statements in the accompanying points and authorities did not explain what facts he needed to obtain or discover; and, he has never explained what facts he needed to obtain or discover to resist the motion for summary judgment. (See Scott v. CIBA Vision Corp. (1995) 38 Cal.App.4th 307, 325-326.)
Accordingly, the court did not err in denying Ansons ex parte motion for continuance.
B
Anson correctly notes that a party is entitled to oral argument on a summary judgment motion. (See, e.g., Mediterranean Construction Co. v. State Farm Fire & Casualty Co. (1998) 66 Cal.App.4th 257, 265.) And he points to the record where the court specifically told him it would not permit him to argue because he had not filed opposition to the summary judgment motion. From this, he argues reversal of the judgment is required because he was not afforded a fair opportunity to argue the merits of the motion.
While it appears from the record that the court did not afford Anson an opportunity to orally argue his case, "[p]rejudice, of course, is an important element, and there is no per se rule requiring reversal. [Citations.]" (Mediterranean Construction Co. v. State Farm Fire & Casualty Co., supra, 66 Cal.App.4th at p. 267.) Anson cannot merely rely on the fact he was deprived of the right to argue; rather, he must demonstrate he was prejudiced by the courts refusal to let him argue. But nothing in the record or briefs on appeal suggests what arguments he could have made had he been given an opportunity to do so.
Accordingly, while the superior court erred in refusing to allow Anson to argue his case, there is no showing the error was prejudicial.
III
The judgment is affirmed. Respondents shall recover their costs on appeal.