 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Crouse v. Brobeck11/25/1998
tend the burden then shifted to Crouse to produce expert testimony evidence of a triable issue of fact that they were negligent while representing Crouse in the spring and summer of 1990.
After the court continued the motion hearing to permit Crouse to conduct additional discovery, Crouse filed supplemental opposition, arguing that it was improper to shift the burden to Crouse to produce evidence of negligence because Page's and Boatwright's motions did not negate negligence by Page and Boatwright, and that even were expert evidence necessary, the expert's declaration BPH provided showed Page and Boatwright should have recognized but did not recognize the non-negotiability of the note. The court sustained the evidentiary objections to the expert's declaration and granted Page's and Boatwright's motions for summary judgment.
2. The Trial Court Erred in Granting the Motions for Judgment on the Pleadings
Page's and Boatwright's motions were effectively motions for judgment on the pleadings. A motion for summary judgment that argues the pleadings do not support a claim is evaluated as a motion for judgment on the pleadings, and tests whether the complaint is sufficient to state a cause of action. (Hand v. Farmers Ins. Exchange (1994) 23 Cal.App.4th 1847, 1853.) Here, the motions argued Crouse's complaint alleged only that she was damaged by the loss of the note, and that Page and Boatwright had no responsibility for loss of the note. The motions further argued that because there were no allegations of injury apart from loss of the note, summary judgment should be granted.
A motion for judgment on the pleadings, like a general demurrer, cannot be granted if the complaint for professional negligence pleads in general terms the basic elements of the cause of action. (Modica v. Crist (1954) 129 Cal.App.2d 144, 145-146.) If the complaint alleges what occurred, and generally alleges the acts were negligently done, the complaint need not state the specific act or omission constituting negligent conduct. (Ibid.) Here, the complaint alleged Page and Boatwright:
". . . negligently and carelessly handled representation of [Crouse], including but not limited to failing to inform [Crouse] of the legal effect of the note, failing to inform [Crouse] of the adverse consequences if the note were lost, failing to properly maintain, locate and produce the note when requested. . . . [ ] Had [Page and Boatwright] . . . exercised proper care and skill in the foregoing matters, [Crouse] would not have been damaged . . . ."
These allegations adequately alleged negligence subsequent to loss of the note that proximately caused damages. For example, were the note non-negotiable, the failure to inform Crouse of the legal effect of the note, based on negligent failure to research whether the note was non-negotiable, caused Crouse to be unaware that her bargaining position in September 1990 was unaffected by the absence of the note, which ignorance could have contributed to her injury . Alternatively, the allegation that Page represented Crouse beginning in April 1990 but failed to "locate and produce the note when requested" could encompass an allegation that the failure of Page and Boatwright to contact BPH in April to request a search be launched for the missing note was a cause of its non-production in September.
To the extent Page's and Boatwright's motions were motions for judgment on the pleadings, the complaint adequately pleaded negligent actions by Page and Boatwright subsequent to the loss of the note and damages resulting from those acts.
3. The Showing Was Insufficient to Permit Entry of Summary Judgment
Page and Boatwr
Page 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 California Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|