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Guevara v. Heimberg11/19/2002
NOT TO BE PUBLISHED
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
Defendant, attorney Stephen Heimberg, represented plaintiff Antonio Guevara, through his guardian ad litem, in a medical malpractice action in which the jury returned a defense verdict. The judgment was affirmed by our colleagues in Division Two (Guevara v. Serra Medical Center, (April 5, 1999, B114879) [nonpub. opn.]). Guevara filed a malpractice lawsuit against Heimberg. The trial court granted Heimberg's motion for summary judgment. On appeal, Guevara does not accuse Heimberg of malpractice at trial. Instead, Guevara claims (I) the trial court abused its discretion in denying his ex parte application to continue the hearing on the summary judgment motion and in failing to consider his late filed opposition papers. Guevara also contends (II) the court erred in failing to consider his timely-filed evidentiary objections and that those objections should have been sustained and (III) even in the absence of any opposition or evidentiary objections, Heimberg's summary judgment motion should have been denied. We reject these contentions and affirm the judgment.
BACKGROUND
Guevara suffered severe injury at his birth in 1994. His mother, Eva Diaz, retained Heimberg to prosecute a medical malpractice action. Diaz was appointed guardian ad litem.
Approximately six weeks before the trial date, after a mandatory settlement conference, the medical malpractice defendants, through counsel Michael O'Flaherty, tendered a settlement offer to Guevara, on April 30, 1997. The defendants made a second, virtually identical offer on May 22, 1997. Both offers were rejected. At trial, the jury rendered a defense verdict.
Guevara's lawsuit against Heimberg alleged two causes of action: legal malpractice and breach of fiduciary duty. The trial court sustained a demurrer without leave to amend as to the breach of fiduciary duty claim and granted Heimberg's motion for summary judgment on the legal malpractice claim. Guevara appeals from the summary judgment filed August 21, 2001.
DISCUSSION
I.
Heimberg filed the pertinent summary judgment motion on May 22, 2001. Opposition to the motion was due June 8. On June 11, Guevara filed an ex parte application for continuance of the July 25, 2001, trial, "to any date convenient to the parties and the court after January 7, 2002, and to extend the discovery and motion cut-off dates in accordance with the new trial date." The application also sought a continuance of hearings on three pending Heimberg motions: the June 22 summary judgment hearing date, a June 12 motion to compel further responses to requests for admissions and a June 20 motion to compel responses to supplemental interrogatories.
The grounds for the continuance motion were that Guevara's then guardian ad litem had resigned and additional time was needed to locate and appoint a replacement. In addition, Guevara's counsel, Leonard Steiner, of the law firm of Steiner & Libo, had four other specified trials scheduled before the trial date in this action and it would be "physically impossible" for him "to adequately prepare for and try this action."
According to counsel's declaration, the original attorney in this lawsuit retired from the law firm in September 2000 and the firm was substituted in his place. The retired attorney's daughter, who had worked for her father and was famil
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