In Minick v. City of Petaluma, published September 2, 2016, the First District Court of Appeal, Division 4 affirmed a trial court order setting aside summary judgment in favor of the city. The plaintiff alleged that irregularities in the street where he was bicycling created a dangerous condition of public property that caused his bike accident and resulting injuries. The plaintiff opposed summary judgment with a poorly-written opposition brief, an expert declaration, and grainy black and white photographs that lacked foundation and did not indicate what they were showing. At the initial summary judgment hearing, the plaintiff's attorney showed signs of physical distress and was taken by ambulance to a hospital. At a continued hearing, the court granted the motion. Five weeks later, the plaintiff moved under Code of Civil Procedure section 473, subdivision (b) for discretionary relief from the summary judgment. The plaintiff's counsel argued that when he drafted the opposition papers he suffered from a cognitive impairment caused by his pulmonary and sleep disorder and the heavy medications he took for them. With the motion, the attorney presented new evidence that, in the trial court's opinion, raised a triable issue of fact on the existence of a dangerous condition.
The appellate court affirmed the trial court's exercise of its discretion in granting relief. While attorney error will seldom be a ground for granting discretionary relief under section 473, the trial court acted within its discretion in concluding that in light of all the circumstances the attorney had adequately proven his incapacity and his diligence in seeking relief.
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