Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. NC041097, Elizabeth Allen White, Judge.
Benedon & Serlin, Gerald M. Serlin and Douglas G. Benedon for Defendants and Appellants.
Law Offices of Kenneth W. Thompson and Kenneth W. Thompson for Plaintiff and Respondent.
Judge of the Los Angeles Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
INTRODUCTION
Defendants William Alan Sobel and The Law Corporation of William Alan Sobel appeal from a judgment in favor of plaintiff Palma Mattera following a bench trial in a legal malpractice action. Defendants contend that the trial court erroneously refused to grant summary judgment, the record contains no evidence that the underlying judgment would have been collectible, and the trial court erroneously failed to exclude the testimony of plaintiff’s expert. We disagree and affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
On September 5, 2001, plaintiff was shopping at a Eurostar, Inc. shoe store. She slipped and fell on a puddle of water and was treated at a local hospital. After receiving treatment, plaintiff continued to suffer pain. On October 6, 2001, she was taken by ambulance to the emergency room and was treated by Dr. Allan Delman. When conservative treatment failed, plaintiff had an extruded disc removed surgically.
Plaintiff hired defendants to represent her in a negligence action to recover damages resulting from her fall. The underlying case of Mattera v. Eurostar, Inc. was scheduled for a status conference, but defendants failed to appear on her behalf. The trial court scheduled an Order To Show Cause re Dismissal hearing. Defendants again failed to appear, and the trial court dismissed the underlying action.
After dismissal of the underlying action, plaintiff filed this action against defendants. Prior to trial, defendants made a motion for summary judgment, claiming that plaintiff would not have prevailed in the underlying case based upon Eurostar’s lack of actual or constructive notice of the defective condition. Plaintiff filed opposition relying in part on a declaration of expert Alex Balian (Balian), who opined that Eurostar had an inadequate maintenance procedure to check for any substance on the floor. Defendants filed a reply and evidentiary objections to Balian’s declaration. The trial court reviewed the Balian declaration and found it lacking in foundation for its opinions. The trial court continued the hearing on the summary judgment motion to allow plaintiff to provide the court with “the basis, not just the opinion, but the foundation, for the opinion” of the Balian declaration. At the continued hearing on the summary judgment motion, the trial court found a triable issue of material fact existed as to whether or not Eurostar was on constructive notice of the defect on its floor.
The court conducted a bench trial and ruled in favor of plaintiff. It awarded her damages in the amount of $91,555.35.
DISCUSSION
A. Denial of Defendants’ Summary Judgment Motion
Defendants assert that the trial court erred in granting plaintiff a continuance instead of granting the motion for summary judgment. We disagree.
The trial court was authorized by statute to allow a continuance of the summary judgment hearing. (Code Civ. Proc., § 437c, subd. (h).) Defendants contend that the trial court was incorrect in continuing the hearing because plaintiff never sought a continuance. We see no legal prohibition to the trial court granting a continuance sua sponte. Section 437c, subdivision (h), does not mandate that a continuance only be granted on a motion by a party. The law is clear that requests for continuances of hearings on summary judgment motions are to be liberally granted. (Knapp v. Doherty (2004) 123 Cal.App.4th 76, 100-101.) While a continuance was not requested by a party, we see no reason to preclude a trial court from continuing a hearing on a summary judgment motion to allow the omission in an opposition to be corrected.
Code of Civil Procedure section 437c, subdivision (h), provides in pertinent part that “[i]f it appears from the affidavits submitted in opposition to a motion for summary judgment . . . that facts essential to justify opposition may exist but cannot, for reasons stated, then be presented, the court shall deny the motion, or order a continuance to permit affidavits to be obtained or discovery to be had . . . .”
The trial court considered the opinion of plaintiffs’ expert, Balian, at the initial summary judgment hearing and found that the foundation for the opinion was lacking. There is no indication that the trial court questioned the opinion, but only the foundation for the opinion. The trial court determined that the foundation could be corrected and allowed plaintiff a continuance to do so. Balian submitted a supplemental affidavit and the trial court concluded that the new affidavit was sufficient to overcome the evidentiary objections. We find no abuse of discretion in continuing the hearing on the motion.
Ambrose v. Michelin North America, Inc. (2005) 134 Cal.App.4th 1350 is inapposite. In Ambrose, an oral request to continue a summary judgment hearing was denied. The trial court found that plaintiff’s motion was untimely and did not include the required affidavit to establish good cause for a continuance. In the instant case, the continuance was granted on the trial court’s own motion to provide plaintiff an opportunity to lay a proper foundation for a critical opinion of her expert.
B. Lack of Evidence to Support the Underlying Judgment Against Eurostar
Defendants assert that the judgment must be reversed because the record contains no evidence that the underlying judgment against Eurostar would have been collectible. We disagree.
When a judgment is attacked on the ground that it is not supported by substantial evidence, an appellate court reviews the evidence in the light most favorable to the judgment, drawing all reasonable inferences, and resolving all doubts, in favor of the judgment. (Kahn v. Department of Motor Vehicles (1993) 16 Cal.App.4th 159, 168-169.) Applying this test to the present case, we conclude there is sufficient evidence from which the trial court could find it was more likely than not that plaintiff could have collected a $90,000 judgment against the underlying defendant, Eurostar.
In a malpractice action, the plaintiff must establish actual loss or damage resulting from the professional’s negligence. (Wiley v. County of San Diego (1998) 19 Cal.4th 532, 536.) If the judgment in the underlying action is not collectible, there is no damage. (Hecht, Solberg, Robinson, Goldberg & Bagley LLP v. Superior Court (2006) 137 Cal.App.4th 579, 584.)
Plaintiff contends that defense exhibits 102 and 103 are evidence that the judgment against Eurostar would have been collectible. We agree. These exhibits are Judicial Council Form Interrogatories that were propounded by defendants upon Eurostar and were received in evidence. The following interrogatory and response are contained within defense exhibits 102 and 103:
“104.1 State the name and ADDRESS of each insurance company and the policy number and policy limits of each policy that may cover you, in whole or in part, for the damages related to the INCIDENT.”
“RESPONSE TO INTERROGATORY NO. 104.1: [¶] California Insurance Group, policy no. 1-BOP-1-700705, with $1 million per liability occurrence.”
The reasonable inference from this interrogatory and answer is that Eurostar had a liability policy with coverage of $1 million per occurrence which more likely than not would have covered plaintiff’s injury. Defendants argue the fact the policy “may” have covered plaintiff’s accident is insufficient evidence that plaintiff could have collected a judgment against Eurostar because the fact the policy “may” have provided coverage also means the policy “may not” have provided coverage. Although defendants’ argument makes sense in the abstract, we find it unpersuasive in the context of this particular question and answer. It is difficult to imagine why a shoe store would carry a million dollar per occurrence liability policy unless it was to cover injuries to customers. Furthermore, a party has the duty to respond in good faith to an interrogatory (§ 2030.220, subd. (c)) and to provide responses “as complete and straightforward as the information reasonably available to the responding party permits.” (§ 2030.220, subd. (a).) The trial court could reasonably assume Eurostar and its counsel abided by this duty in responding to the insurance interrogatory and did not identify a policy they reasonably believed would not provide coverage for the accident. Indeed, the fact Eurostar was represented by an attorney who frequently defended slip-and-fall claims suggests its defense was being provided by an insurance company that believed there was at least “a potential for indemnity under the policy.” (Scottsdale Ins. Co. v. MV Transportation (2005) 36 Cal.4th 643, 654.)
C. Trial Court’s Admission of Dr. Delman’s Testimony
Defendants contend that Dr. Delman’s expert opinion—that plaintiff’s fall at the Eurostar store was a cause of her herniated disc—should have been excluded under section 2034.300, subdivision (d), because plaintiff failed to “make that expert available for a deposition.” We conclude that even if the trial court erred in admitting Dr. Delman’s testimony, the error was not prejudicial.
Dr. Delman was the surgeon who operated on plaintiff after her fall. Plaintiff designated him as an expert witness. When defendants deposed Dr. Delman, however, he stated he was unable to offer an opinion as to the cause of plaintiff’s herniated disc. He also admitted he had not reviewed any medical records regarding plaintiff’s treatment for back pain prior to the fall at the Eurostar store and that without reviewing those records he could not form an opinion as to the cause of plaintiff’s herniated disc.
The primary purposes in deposing experts are to “‘gear up to cross-examine them effectively’” and “‘marshall the evidence to rebut their opinions.’” (Bonds v. Roy (1999) 20 Cal.4th 140, 147, citation omitted.) Dr. Delman’s deposition worked to defendants’ advantage because on cross-examination Dr. Delman contradicted his deposition testimony that he needed to review plaintiff’s earlier medical records before he could form an opinion on causation. He claimed he did not need to consider plaintiff’s past history of back pain in order to form an opinion the fall in the store “was a causal factor” in the herniation of plaintiff’s disc. Defendants pointed to this inconsistency in closing argument as a reason why Dr. Delman’s testimony should be disregarded. Defendants also produced evidence through their own expert which undercut Dr. Delman’s opinion by showing plaintiff’s medical records reflected a possible herniated disc prior to her fall.
DISPOSITION
The judgment is affirmed.
We concur: VOGEL, Acting P. J., ROTHSCHILD, J.
All further statutory references are to the Code of Civil Procedure.