Payless Drug Store v. SUPERIOR COURT OF ORANGE CTY.

Opinion

MOORE, (E. C.), J.

*

Real party in interest, Jacqueline Parks-Butcher, claims to have suffered injuries as a result of actions of petitioner, Payless Drug Store. According to Parks-Butcher, Payless’s delay in filling her prescription for an antibiotic, allegedly because Payless mistakenly believed that Parks-Butcher was allergic to the prescribed antibiotic, caused her to suffer a severe infection. Payless, however, maintains that Parks-Butcher knew about this alleged mistake more than a year before she filed her complaint and based on the statute of limitations brought a motion for summary judgment against her. On October 6, 1993, that motion was heard and denied. The court’s ruling was, “I am not convinced. The court is going

[279]

to deny the motion.” When asked by Payless to state the facts in dispute, the judge replied, “As stated in counsel’s moving papers, Counsel. The opposition papers.” No order was prepared and the court gave no other reasons for denying the motion.

Code of Civil Procedure section 437c, subdivision (g) provides that upon the denial of a motion for summary judgment the court shall by written or oral order specify one or more material facts raised by the motion as to which the court has determined there exists a triable controversy. “[T]he court shall specifically refer to the evidence proffered in support of and in opposition to the motion which indicates that such triable controversy exists.”

(Tera Pharmaceuticals, Inc.

v.

Superior Court

(1985) 170 Cal.App.3d 530, 532 [215 Cal.Rptr. 923].)

Payless sought extraordinary relief. We issued an order stating that the petition for writ of mandate/prohibition may have merit and that, pursuant to

Tera Pharmaceuticals, Inc.

v.

Superior Court, supra,

170 Cal.App.3d 530, this court was considering issuing a peremptory writ in the first instance.