Gonzales v. Superior Court

Opinion

ABBE, J.

—We must decide here whether a court may properly grant summary adjudication of issues where the notice of motion was only for summary judgment. We conclude that it may not.

Facts

Petitioner is the plaintiff in a personal injury action. The lawsuit arises from an accident involving her automobile and a truck owned by real party California Liquid Fertilizer Corporation, and driven by real party Leonard Ray Black.

Real parties filed a document entitled, “Notice of Motion and Motion for Summary Judgment.” The notice of motion made no request that the court summarily adjudicate factual issues. In the motion it was argued that it was the petitioner who was at fault, and not real parties. Real parties’ supporting points and authorities included a statement of 21 facts in support of their motion. (See Code Civ. Proc., § 437c, subd. (b).)

In opposition to the motion petitioner contended there were triable issues of fact with respect to real parties’ negligence. Petitioner’s opposition focused upon the issues of whether her automobile passed real parties’ truck prior to the collision, the speed of the vehicles, and whether real parties’ truck struck petitioner’s automobile.

On July 11,1986, the matter was heard by respondent superior court. The motion for summary judgment was denied. However, the court was of the view that it could summarily adjudge that some of the statements of facts set forth in real parties’ moving papers were without controversy. Counsel for General Motors, a codefendant in the action, pointed out that real parties had not moved for summary adjudication. The court asked counsel for real parties whether he wished to have it summarily adjudicate the issues of fact. Real parties’ counsel replied in the affirmative. At this juncture, counsel for petitioner stated that, in his points and authorities, he had attempted to raise a triable issue of fact concerning real parties’ negligence but had not made

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any effort to address a motion for summary adjudication of issues. The court proceeded to summarily adjudge that 17 of the issues were without substantial controversy.