 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Schwartzberg v. Warmington Homes California1/30/2002
t the first signs of light-headedness. Nor is it of any moment that the interviewers did not inquire more deeply. Defendant Mignone did not himself have any indication he might present a danger while driving. Finally, defendant Warmington could rely on his status as a lawfully licensed driver; a diabetes-related incident in the past would have triggered a suspension as in the present matter.
As there is consequently no evidence that a diabetic driver in general or defendant Mignone in particular would present a threat to others, the plaintiffs have failed to establish this necessary element of negligent hiring or supervision. The trial court was therefore correct in granting summary judgment on this theory as well.
II.
In requesting the court reconsider its ruling on the motion for summary judgment on the basis of an expert opinion, the plaintiffs' lawyer claimed their "diabetes expert" was "out of the country from September 20 to October 14, 2000." Defendant Warmington had noticed the motion for summary judgment on September 15 for October 26, the date on which counsel appeared and argued. There is no explanation why the plaintiffs had not consulted their diabetes expert well before the motion for summary judgment, as defendant Mignone's diabetic blackout was not a secret, or immediately after receiving notice of the motion, or sought a continuance after his return 12 days before the motion. In its ruling on the motion after entry of judgment (which, as noted earlier, was without effect), the court concluded the expert's opinion was available prior to the notice of the motion for summary judgment and thus did not satisfy Code of Civil Procedure section 1008.
In requesting reconsideration of a ruling on the basis of new or different facts, a party must satisfy a strict standard of diligence in providing a satisfactory explanation for failing to submit the evidence before the ruling. The plaintiffs' sole argument on the issue of reconsideration appears in a footnote to their opening brief, and relies on a factually inapposite case involving a motion for new trial in which new facts discovered just before trial would have changed the expert's opinion offered at trial had he been told of them. In the present case, by contrast, the facts underlying the expert's opinion had been clear since the August 1999 accident. This does not amount to diligence of any sort, and is woefully short of demonstrating the plaintiffs' entitlement to rehearing as a matter of law. We thus do not find any basis for reconsideration in light of the additional evidence.
Disposition
The judgment is affirmed.
We concur:
SCOTLAND, P.J.
CALLAHAN, J.
Page 1 2 3 4 5 6 7 California Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|