Lowe v. City of San Diego

HARRY S. LOWE et al., Respondents, v. THE CITY OF SAN DIEGO (a Municipal Corporation), Appellant.

COUNSEL

C. L. Byers, City Attorney, Gilmore Tillman, Assistant City Attorney, and James J. Breckenridge, Deputy City Attorney, for Appellant.

F. L. Richardson and Edgar B. Hervey for Respondents.

OPINION

Barnard, P. J.

[1] This is an action for damages for injuries alleged to have been received because of the defective or dangerous condition of a street. In its opening brief the appellant raised several questions of law and several questions as to the sufficiency of the evidence. The respondents moved to dismiss the appeal or affirm the judgment under rule V, section 3, of the rules governing this court, on the grounds that the appeal is frivolous, taken for delay only, and that the questions presented are so unsubstantial as not to need further argument. This motion of the respondents was accompanied by a typewritten brief of forty-four pages, citing authorities and fully arguing the merits of the appeal. [1 Cal. App. 2d 426]

It appears from the opening brief and also from the brief filed by the respondents in support of this motion that a careful study of the record will be required, in which the court should have the benefit of the respondent's assistance. As was said in Smith v. Rothschild, 140 Cal. App. 4 [34 PaCal.2d 1050]: "When this motion is made for the purpose of advancing the hearing of an appeal on the merits or to avoid preparation of a brief under the rules, it should be denied. The motion in this case is of that character."

The motion is denied.

Marks, J., and Jennings, J., concurred.