Fear Not Law Articles: Erwin v. Stewart Humphries

Erwin v

Erwin v. Stewart Humphries

Filed 1/31/07 Erwin v. Stewart Humphries CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Butte)

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SUE ERWIN,

Plaintiff and Appellant,

STEWART HUMPHERYS BURCHETT & MOLIN et al.,

Defendants and Respondents.

C050617

(Sup. Ct. No. 129605)

Plaintiff Sue Erwin appeals from a judgment in favor of defendants Stewart, Humpherys, Burchett & Molin and Richard J. Molin in this legal malpractice case. Erwin contends the trial court erred in granting defendants' motion for summary judgment because defendants failed to bear their burden to show the absence of a triable issue of material fact. She further argues that considering evidence that appears to negate her case violated due process because such evidence was not presented until shortly before the trial court ruled. While Erwin's case appears weak, even meritless, we must reverse because defendants failed to comply with the exacting requirements of Code of Civil Procedure section 437c.

FACTUAL AND PROCEDURAL BACKGROUND

Underlying Facts

On August 27, 2001, Erwin's 70-year-old husband, Charles, fell and hit his head and neck on the tile counter in the Erwins's kitchen. Paramedics from the California Department of Forestry (CDF) responded and took him to the hospital.^{^[1]} On October 9, 2001, Charles Erwin died.

Suspecting medical malpractice caused her husband's death, Erwin consulted defendant Molin in early November 2001. He did not take the case then; instead, his firm sent a letter the following January. The letter stated that Erwin was to get in touch after she received the coroner's report if she wished to pursue the matter. If they did not hear from her in 30 days, they would assume she did not wish to retain their services. Erwin contacted Molin and in February 2002, they entered into a retainer agreement.

An autopsy was conducted two days after Charles Erwin's death by John Cooper, M.D., an independent medical examiner. He found the cause of death was complications of hospital-acquired pneumonia. The pneumonia was the result of a spinal cord injury, the fracture of the seventh cervical vertebra, from a fall, which resulted in quadriplegia. Cooper believed the spinal cord injury could have been prevented â€

Description	Plaintiff Sue Erwin appeals from a judgment in favor of defendants Stewart, Humpherys, Burchett & Molin and Richard J. Molin in this legal malpractice case. Erwin contends the trial court erred in granting defendants' motion for summary judgment because defendants failed to bear their burden to show the absence of a triable issue of material fact. She further argues that considering evidence that appears to negate her case violated due process because such evidence was not presented until shortly before the trial court ruled. While Erwin's case appears weak, even meritless, we must reverse because defendants failed to comply with the exacting requirements of Code of Civil Procedure section 437c.
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