Plaintiff bicyclist sued the City of Petaluma over personal injuries he suffered after allegedly encountering a pothole on a city street. Petaluma filed a motion for summary judgment. Plaintiff’s attorney’s opposition papers were wholly inadequate — they failed to lay the requisite foundation for hearsay evidence, and the attorney failed to present evidence that he knew he had.
There were two oral arguments on the motion. The attorney had to be removed by ambulance from the first court session because he became incapacitated. He participated in the second session, and the court granted summary judgment.
The attorney filed a motion for relief under CCP 473(b) on grounds of excusable neglect. The attorney had been taking nearly a dozen prescription medications to combat a pulmonary condition and a sleep disorder. The attorney credibly denied knowledge that he had been cognitively impaired as a result of these medications, but nevertheless, he had been impaired.
The court granted the motion and Petaluma appealed.
HELD: Affirmed. No abuse of discretion.
For purposes of a 473(b) motion, the attorney did not need a doctor’s opinion; his lay opinion was sufficient. The attorney’s lack of knowledge that he was suffering from a cognitive impairment distinguishes this case from prior cases where the attorney was aware of her medical limitations and failed to guard against them.
Attorney impairment from alcohol use or ingestion of illicit or prescription drugs, is becoming more common.