Arauz v. Gerhardt (68 Cal. App. 3d 937, 1977)

Opinion

FORD, P. J.

Plaintiff Amelia Arauz has appealed from a summary judgment.

Plaintiffs Gregory Grabowski, a minor, by his guardian ad litem, Amelia Arauz, and Amelia Arauz on her own behalf brought this action against Great Western Council, Inc., erroneously designated in the complaint as Crescent Bay Area Council, Pauline Burroughs, the owner of the automobile to which reference was made in the complaint, and Elizabeth Gerhardt, the driver of the automobile.

In the first cause of action, on behalf of the minor it was alleged that on or about February 10, 1973, at approximately 5:30 p.m., at or near the intersection of Talbert Street, Saran Drive and Redland Street in the County of Los Angeles, defendants “so carelessly and negligently owned, operated, maintained, controlled and entrusted the above mentioned automobile so as to cause it to collide with the person of Gregory Grabowski, causing the injuries and damages hereinafter set forth.” The minor’s cause of action is not involved on this appeal.

The third cause of action of the complaint was stated to be one for “negligent infliction of emotional harm,” wherein, after setting forth the facts regarding the occurrence of the accident, it was alleged as follows: “[T]hat plaintiff is informed and believes that she [plaintiff Arauz] arrived on the scene within five minutes of the actual collision and upon discovering that the injured boy was her son, suffered severe fright, shock and mental illness requiring psychiatric care.” Plaintiff Arauz alleged injury to her person, past and future medical expenses, and loss of earnings and earning capacity as a result of defendants’ negligence.

After answers to the first amended complaint were filed, defendants filed a notice of motion for summary judgment with respect to the third cause of action of that complaint. Declarations in support of and in opposition to the motion were filed by the parties. The motion was heard and submitted. Thereafter, the trial court made its order, which was set forth in the minutes of the court as follows: “The motion for partial summary judgment is granted. Under the facts set forth in the declarations it would seem that the plaintiff Arauz did not arrive at the scene until some time after the accident which consequently was not witnessed by her. The limiting condition in Dillon V. Legg, 68 C 2d 728, that there must be a ‘sensory and contemporaneous observance of the accident, as contrasted with learning of the accident from others after its occurrence’ is not present in the instant case.” Judgment against plaintiff Amelia Arauz was entered.

In determining the sufficiency of the declarations offered by the parties on the motion for summary judgment we are guided by familiar principles. As was stated in Parker v. Twentieth Century-Fox Film Corp., 3 Cal.3d 176, at page 181 [89 Cal.Rptr. 737, 474 P.2d 689, 44 A.L.R.3d 615]: “The familiar rules are that the matter to be determined by the trial court on a motion for summary judgment is whether facts have been presented which give rise to a triable factual issue. The court may not pass upon the issue itself. Summary judgment is proper only if the affidavits or declarations [fn. omitted] in support of the moving party would be sufficient to sustain -a judgment in his favor and his opponent does not by affidavit show facts sufficient to present a triable issue of fact. The affidavits of the moving party are strictly construed, and doubts as to the propriety of summary judgment should be resolved against granting the motion. Such summary procedure is drastic and should be used with caution so that it does not become a substitute for the open trial method of determining facts. [If] The moving party cannot depend upon allegations in his own pleadings to cure deficient affidavits, nor can his adversary rely upon his own pleadings in lieu or in support of affidavits in opposition to a motion; however, a party can rely on his adversary’s pleadings to establish facts not contained in his own affidavits. [Citation.] Also, the court may consider facts stipulated to by the parties and facts which are properly the subject of judicial notice. [Citations.]” (See Jacobs v. Retail Clerks Union, Local 1222, 49 Cal.App.3d 959, 964-965 [123 Cal.Rptr. 309]; Hale v. George A. Hormel & Co., 48 Cal.App.3d 73, 81 [121 Cal.Rptr. 144].)

In the declaration of defendant Betsy B. Gerhardt it was stated that she was returning several members of the Cub Scouts to their homes after an outing at the Culver City Ice Rink. Plaintiff Gregory was with her. After she “dropped him off at his apartment complex” her “vehicle made contact” with Gregory. She observed him at the right of her vehicle “where he was attempting to get up off the pavement.” When she alighted from her vehicle, “the only visible injury” she observed was “a very small amount of blood” on Gregory’s forehead. He did not appear to be “bleeding in any other area of his body.” There were no bloodstains on his clothes and his clothing was not torn. He was not crying but he appeared to be “moderately upset.” She and Gregory walked to the curb and sat down. Sometime thereafter plaintiff Amelia Arauz “arrived at the scene”; this was prior to the arrival of the ambulance.

The declaration of James L. Craig, one of the defense attorneys, contained excerpts from the deposition of a witness, Mrs. Mary Barker. When Mrs. Barker approached the scene of the accident she saw defendant Gerhardt and plaintiff Gregory standing “on the grass back from the curb.” Mrs. Gerhardt was holding Gregory. Except for a cut on his head, she did not notice any injury to the boy and he complained of none. She saw neither blood on his clothing nor rips thereof. She stated that the ambulance arrived “[p]ossibly” ten minutes after she got to the scene of the accident; it took her between two to five minutes to run from her apartment to the scene of the accident after a boy ran down the hall saying that there had been an accident.

Portions of plaintiff Arauz’ deposition were included in the declaration of Lon Harris, another defense attorney. In one portion plaintiff Arauz testified that she was given tranquilizers at the hospital after the accident. Other than being tired and having a floating feeling from the Valium given to her, she had no problems or complaints immediately after the accident. She further testified: “Q. Within approximately three months after the accident describe for me, please, all the problems, symptoms, and complaints you had at that time? . . . The Witness: Yes. And I became very col