Opinion
A100959.
10-31-2003
JOYCE MOODY, Plaintiff and Appellant, v. CITY OF VACAVILLE, et al., Defendants and Respondents.
Joyce Moody appeals a summary judgment in favor of the City of Vacaville and County of Solano (collectively respondents, unless otherwise noted) in her action for inverse condemnation, quiet title and property damage. She contends she was denied her right to prosecute the action.
BACKGROUND
In 1998 respondents, in a joint public works project, widened a section of County Road 168, also known as Leisure Town Road. Moody owns and lives on a parcel of property on County Road 168. She filed an action for inverse condemnation, which she dismissed without prejudice when respondents moved for summary judgment.
On May 31, 2001, Moody, represented by a new attorney, Clyde West, filed another action for inverse condemnation, alleging generally that respondents had taken a portion of her property to widen and improve the road without just compensation.
In its report for the February 27, 2002 "Status Conference Two," respondent City stated that Moodys present case was identical to the one she had dismissed while respondents previous motion for summary judgment in her first action was pending. The report also stated that respondents intended to re-file their same motion for summary judgment to her present case.
On April 16, 2002, respondents moved for summary judgment on the grounds Moody could not demonstrate a taking because their improvements to Country Road 168 were to a public road easement owned by the County for more than 130 years, and all improvements occurred within the Countys public road right-of-way. The motion was scheduled for hearing on June 4. Moody filed no opposition.
On June 3, the court issued a tentative ruling granting respondents motion.[] At the scheduled June 4 hearing the court informed respondents counsel that it was notified that morning that attorney West had been suspended from the practice of law, effective May 16, 2002; consequently, no one was appearing for Moody. The court continued the hearing to August 22 to permit Moody to obtain substitute counsel to respond to respondents motion for summary judgment.
Solano County provides a telephonic recording of tentative rulings the afternoon before a scheduled hearing on a motion. (Super. Ct. Solano County, Local Rules, rule 3.14.)
On June 19 Richard Staff substituted in as Moodys attorney.[] On June 28, counsel for the City informed Staff of the August 22 hearing on respondents motion for summary judgment.
According to the court minutes, Staff had appeared for Moody at the November 20, 2001 "Status Conference One" on her present case. There was no appearance for respondents, and the conference was continued to January 8, 2002.
On August 12, Staff, on Moodys behalf, filed opposition to respondents motion for summary judgment. The opposition asserted there were triable issues of fact as to whether the public road easement for County Road 168 was created on her property or her neighbors property.
On August 21, the court issued its tentative ruling, again granting respondents motion for summary judgment. Moody appeared in propria persona at the scheduled August 22 hearing on respondents motion. She informed the court that Staff was no longer her attorney and was supposedly sending the court a letter to that effect by facsimile. The Citys attorney stated that Moody herself had telephoned him the previous afternoon at 4:30 to say she wanted to present oral argument. The Countys attorney was unaware that Staff no longer represented Moody.
The court denied Moodys request for a 90-day continuance so she could obtain a new attorney and "expert witnesses," but continued the hearing to September 4 for argument on its tentative ruling.
On September 4, attorney William Collier appeared on behalf of Moody[] and argued against the tentative ruling. The court refused his request for a continuance to submit additional documents and written arguments. After taking the matter under submission, the court granted summary judgment in respondents favor on September 5. Judgment was entered September 18, and Moody was served with notice of entry of judgment on September 23.
The appellate record does not contain a substitution of attorney Collier for attorney Staff. At the September 4 hearing Collier stated he "only had this case a few days."
On October 18, Moody retained attorney Steven Belzer. On November 12, on her behalf, he applied for an order shortening time to November 19 to hear her motion to set aside the judgment. Belzer apprised the court that the time to notice an appeal from the September 23 notice of entry of judgment expired November 22. At the November 12 hearing on the application to shorten time, the court scheduled a hearing on Moodys as-yet unfiled motion to set aside the judgment for November 27.
On November 15, the court issued a written order granting Moodys application to shorten the time to serve respondents with her motion to set aside the judgment. It ordered that the motion be served by facsimile no later than November 20 and that respondents file and serve opposition no later than November 24.
Moody did not file a motion to set aside the judgment.[] She filed her notice of appeal on November 22.
At the Tuesday, November 12 hearing on Moodys application to shorten time, Belzer informed the court that he had served respondents counsel with the motion to set aside the judgment and supporting points and authorities by facsimile at 5:00 p.m., Friday, November 8. (Presumably the hearing was Tuesday because the courts were closed Monday, November 11, for Veterans Day.) However, Belzer never filed these documents with the court. The County filed opposition to the motion on November 20. According to respondents brief, Moody dismissed her motion to set aside the judgment before she noticed her appeal on November 22.
DISCUSSION
I. Due Process
Moody does not challenge the substantive basis of the summary judgment. As we understand it, the crux of her contention is that the courts 13-day continuance to obtain new counsel following the August 22 hearing at which she appeared by herself without counsel[] was so short that it violated her right to due process because it denied her the right to effective counsel.
The record does not contain a formal substitution of attorney by which Moody was substituted in propria persona for her former attorney, Staff. (See fn. 3, ante.)
The fundamental requirement of due process is "the opportunity to be heard `at a meaningful time and in a meaningful manner." (Mathews v. Eldridge (1976) 424 U.S. 319, 333.) "`It is a flexible concept requiring accommodation of the competing interests involved, and its procedural requisites necessarily vary depending on the importance of the interests involved and the nature of the controversy. [Citation.]" (Los Angeles Police Protective League v. City of Los Angeles (2002) 102 Cal.App.4th 85, 91.)
At issue is whether the trial courts actions during the course of the summary judgment proceedings deprived Moody of due process. Nothing in the statutory summary judgment procedure is inherently unconstitutional. "But technical compliance with the procedures of Code of Civil Procedure section 437c is required to ensure there is no infringement of a litigants hallowed right to have a dispute settled by a jury of his or her peers." (Bahl v. Bank of America (2001) 89 Cal.app.4th 389, 395.)
The purpose and process of summary judgment proceedings are well established. They provide courts with a mechanism to cut through the parties pleadings to determine whether, despite their allegations, a trial of fact is necessary to resolve the dispute. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) A motion for summary judgment, and opposition to the motion, must be supported by written evidence, e.g., affidavits, discovery, and matters subject to judicial notice. (Code Civ. Proc., § 437c subd. (b).)[] The moving party must also submit a written statement of undisputed material facts, and the opposing party must submit a written statement responding to each purportedly undisputed fact. (& sect; 437c, subd. (b).) The trial court shall grant the motion if "all the papers" submitted by the moving and opposing parties show no triable issue of material fact and the moving partys entitlement to judgment as a matter of law. (§ 437c, subd. (c).) The heart of a summary judgment, in short, is the written documentation.
Unless otherwise indicated, all further statutory references are to the Code of Civil Procedure.
Moody was not denied an opportunity to present the critical written opposition to respondents motion. On June 4, the original hearing date on the motion, the court granted a continuance to August 22 because her attorney had been suspended, allowing her more than 11 weeks to obtain substitute counsel to prepare and submit opposition. Richard Staff, who had some acquaintance with her case, was substituted in on June 19. (See fn. 2, ante.) Staff filed Moodys opposition without seeking any continuances, although a continuance is virtually mandated when a party opposing a summary judgment makes a good faith showing by affidavit that he or she needs a continuance to obtain facts essential to justify opposition. (& sect; 437c, subd. (h); Bahl v. Bank of America, supra, 89 Cal.App.4th at p. 395.)
A party opposing summary judgment is entitled to argue a summary judgment motion orally, in order to accommodate the basic due process right to be heard. (Mediterranean Construction Co. v. State Farm Fire & Casualty Co. (1998) 66 Cal.App.4th 257, 262, 264 (Mediterranean Construction Co.) The right to oral argument, however, does not encompass the right to present testimony at the hearing. (Id. at p. 263.) Therefore, the argument is necessarily based on the written documentation.
When Staff, who had prepared Moodys written opposition, failed to appear at the August 22 hearing, the court again continued the hearing to September 4 to give her the opportunity to find an attorney who could argue against respondents motion on her behalf. This two-week continuance was not as long as the 11-week continuance she had been granted on June 4, but the new attorney did not need a lengthy period to prepare for argument. The more arduous and time-consuming ground work of determining whether and what issues of material fact existed, assembling the evidence that demonstrated triable issues of fact, researching the relevant legal authorities to oppose respondents motion, and reducing all the review and research to writing had already been done by attorney Staff. At a summary judgment hearing the role of the arguing attorney is to highlight the essential issues and respond to the courts inquiries, not to lay out a lengthy exposition of facts and laws. (Mediterranean Construction Co., supra, 66 Cal.App.4th at p. 264.) As the transcript of the September 4 hearing reveals, Moodys new attorney, Collier, comported himself estimably in drawing the courts attention to the primary areas of dispute.
By assuring that Moody was provided counsel at significant stages of the summary judgment proceedings, the court ensured that her due process right of "the opportunity to be heard `at a meaningful time and in a meaningful manner" (Mathews v. Eldridge, supra, 424 U.S. at p. 333) was satisfied. Under the circumstances of this case, we find no violation of due process in its August 22 refusal to continue the hearing on respondents summary judgment motion, which had already been continued once on June 4, for a shorter time than she requested.
II. Abuse of Discretion
Alternatively, Moody contends the courts denial of her August 22 request for a 90-day continuance and its September 4 denial of the request of attorney Collier for a continuance to submit evidence to support his oral argument were abuses of discretion.
If affidavits submitted in opposition to a motion for summary judgment show that facts essential to justify opposition may exist but cannot, for the reasons stated in the affidavit, yet be presented, courts shall order a continuance to permit further affidavits or discovery or to make any order "as may be just." (§ 437c, subd. (h).)[] The statute mandates a continuance on a good faith showing by affidavit that a continuance is necessary. The opposing party seeking a continuance cannot raise the issue simply in an opposition memorandum or by an oral application at the hearing. (See Roth v. Rhodes (1994) 25 Cal.App.4th 530, 547; Hill v. Physicians & Surgeons Exchange (1990) 225 Cal.App.3d 1, 7-8.) The affidavit serves to inform the court of the outstanding discovery that is necessary to resist the summary judgment motion. (Scott v. CIBA Vision Corp. (1995) 38 Cal.App.4th 307, 325.)
Section 437c, subdivision (h) was amended, effective January 1, 2003, to permit the opposing party to move ex parte for a continuance on or before the opposing response is due. (Stats. 2002, ch. 448, § 5.)
Moody filed the present case on May 31, 2001, based on the 1998 improvements to County Road 168. She had previously filed an identical case, which she had dismissed after respondents had filed a motion for summary judgment that was identical to their present motion. As previously noted, Staff, Moodys attorney who prepared her opposition to respondents present motion, never sought a continuance for further discovery or any other purpose during the two months (June 19-August 21) he represented her for purposes of opposing respondents motion.
At the August 22 hearing, when she appeared by herself without counsel, Moody stated that she needed time to get money for expert witnesses and sought a 90-day continuance. A friend who accompanied Moody to the hearing told the court that respondents "expert witnesses" (presumably a reference to the declarations of respondents surveyors, and civil engineers, and their supporting documents) were not "in depth enough" to provide the court with the documents it needed to rule.[]
The court apparently permitted the friend to offer his opinion as a courtesy. Nothing in the record suggests the friend was an attorney, interested party to the litigation, or expert witness.
Under these circumstances the trial court did not abuse it discretion in denying Moodys request at the August 22 hearing for a 90-day continuance. (See Scott v. CIBA Vision Corp, supra, 38 Cal.App.4th at p. 326.) Her attorney had not requested one; and, even apart from the fact that her statements and those of her companion were not in affidavit form, their content did not imply that evidence actually existed that would controvert that of respondents and raise a triable issue of fact regarding the existence or nonexistence of a valid road easement over her property. Also, Moodys prior identical case had been before the same court presiding over her present case, so it knew she had had several years to obtain the evidence essential to resist respondents summary judgment motion. It could therefore reasonably conclude that such evidence did not exist. (See American Continental Ins. Co. v. C&Z Timber Co. (1987) 195 Cal.App.3d 1271, 1280-1281.)
Nor did the court abuse its discretion in denying attorney Colliers request at the September 4 hearing for a continuance to submit additional exhibits. A plaintiff has a duty to proceed with due diligence at every stage of the proceedings. (Crown Coach Corp. v. Superior Court (1972) 8 Cal.3d 540, 548.) Admittedly Collier only became Moodys attorney a few days before the hearing, but he did not submit any affidavit showing why a continuance was necessary to obtain critical opposing evidence. Based on Colliers statements at the hearing, the additional exhibits were public documents.[] Thus, they were not materials that had been unavailable to Moody or her previous attorneys during the several years since she inaugurated her action against respondents.
For instance, Collier referred to the "probate record" of a 19th Century owner of Moodys property, to a map created to accompany the 1868 petition to create County Road 168, and to a 1997 environmental impact report prepared for the road improvements.
III. Motion to Shorten Time
Moody contends the court abused its discretion in refusing to hear her motion to set aside the judgment before the time to appeal the judgment expired.
The court issued and served its order for summary judgment on September 5; Moody was served via attorney Collier. Notice of entry of the September 18 judgment was served on Moody, again via attorney Collier, on September 23, making November 22 the final day to notice an appeal. For reasons that do not appear in the record, Collier did not continue to represent Moody. Instead, she retained Steven Belzer on October 18. On November 12 Belzer, on Moodys behalf, made an ex parte application for an order shortening the time to notice a motion to set aside the judgment. In his supporting declaration, Belzer stated that without an order shortening time, there was insufficient time before the last day to notice an appeal from the judgment to comply with section 1005s requirements for noticing and serving the motion to set aside the judgment.
Trial courts have both statutory and inherent authority to control the litigation before them. (§ 128, subd. (a)(8); Cottle v. Superior Court (1992) 3 Cal.App.4th 1367, 1376-1377.) They also have broad discretion to control and regulate their calendars. (Moyal v. Lanphear (1989) 208 Cal.App.3d 491, 497.) We conclude the court did not abuse its discretion in refusing to schedule Moodys motion to set aside the judgment before the time to appeal the judgment had expired.
Neither Moody nor Belzer manifested diligence in seeking post-order or post-judgment action by the trial court. Moody herself offered no explanation why she did not promptly seek relief of the September 5 order or the September 18 judgment or why she did not retain a new attorney until October 18. Belzer did not explain why he did not seek the order shortening time immediately after being retained but waited more than three weeks (November 12) to do so. Furthermore, shortening the hearing on Moodys motion to November 19, as she requested, would have imposed a burden on respondents to reply to her motion in less than a week, and would also, as the court intimated, have disrupted its calendar and consideration of other cases and denied the parties its full attention to the motion.[]
When the court scheduled the hearing for November 27, Belzer reiterated the purpose for expediting the hearing on the motion to set aside the judgment, i.e., the time to appeal would soon expire. The court responded, "You know, Ive got better things to do than put everything aside to read your points and authorities. . . . [W]hat do you want me to do? Rule on [the motion] without reading it?"
IV. Abandonment
Moody contends that negligence of her attorneys was effectively an abandonment. Therefore, she argues, the courts refusal to grant her a continuance "to afford [her] a reasonable opportunity to resurrect her right to [a] hearing amounts to an abuse of discretion resulting in a miscarriage of justice."
Whether an attorneys neglect of a client is so extreme that it amounts to an abandonment of the client is first a factual question. (Seacall Development, Ltd. v. Santa Monica Rent Control Bd. (1999) 73 Cal.App.4th 201, 205.) According to respondents, Moody would have based her motion to set aside the judgment on a theory of abandonment. Insofar as that factual issue was never before the trial court, because Moody elected to dismiss her motion, it is also not properly before this court. (Doers v. Golden Gate Bridge etc. Dist. (1979) 23 Cal.3d 180, 184, fn. 1; Ochoa v. Pacific Gas & Electric Co. (1998) 61 Cal.App.4th 1480, 1488; Cal. Rules of Court, rule 14(a)(2)(C).)
DISPOSITION
The judgment is affirmed.
We concur: Stevens, J. and Gemello, J.