California
Appeals
Standard of Review
Request for Continuance-

Standard of Review-Request for Continuance-Sanders v. Lawson

1.  The Trial Court Erred in Denying Cheryl’s Motion for Continuance.

            a.  The relevant facts

            Cheryl asserts that plaintiffs did not serve the elder abuse complaint on her for 88 days after filing it, notwithstanding she was present with her attorney and plaintiffs’ counsel at eight days of deposition in the quiet title action.  The first amended complaint was filed on June 10, 2004.  Plaintiffs served the summons and complaint on Cheryl on September 8, 2004, at the close of the seventh day of her deposition.

            Just two weeks later, in September 2004, the trial court held an initial status conference in the elder abuse action.  Cheryl’s attorney did not attend because of illness.  At that conference, the court scheduled trial for January 10, 2005, with the discovery cutoff date of December 10, 2004.  Shortly thereafter, the parties stipulated that discovery taken in the quiet title action could also be used in the elder abuse action.

            Cheryl demurred to the complaint in October 2004, and then filed her answer on November 5, 2004.  On November 18, 2004, Cheryl noticed the deposition of one of the senior Lawsons’ caretakers.  Cheryl also requested a production of documents.

            On November 30, 2004, Cheryl moved to continue the trial and reopen discovery for four months.  In what was Cheryl’s first continuance request, she argued that the trial date had been set in her attorney’s absence because of illness.  She intended to take the depositions of the trustee, the conservator, her brother and sister, three doctors, and at least one of the caregivers who attended to the senior Lawsons at the time the deed was executed.  Cheryl argued she did not have a reasonable opportunity to complete discovery that would not be duplicative of the quiet title action because plaintiffs intentionally delayed service of the complaint and trial was set so soon thereafter.

            Plaintiffs opposed the four month continuance arguing that Cheryl had taken no discovery in the three months since having been served with the complaint and had taken no discovery in the quiet title action.  Plaintiffs noted that Cheryl had prolonged her own deposition by refusing to appear on some days.  Plaintiffs also asserted that Cheryl had obstructed discovery and “refused to make a complete document production.”  Plaintiffs argued that Louis and Sylvia were elderly and ill, and delay of trial because of Cheryl’s dilatory conduct would deplete the resources of the estate and delay their ability to use the equity in the Santa Barbara property for the senior Lawsons’ care.  It appears that the court did not grant the continuance motion.

            On January 6, 2005, Cheryl’s attorney filed a letter explaining that he was seriously ill with a pulmonary problem and would not be able to commence trial as scheduled on January 10, 2005.  Upon court order, Cheryl filed the declaration of her counsel’s physician confirming the illness.  Cheryl filed a substitution of attorney.

            The new attorney made what was Cheryl’s second request for a continuance.  Plaintiffs opposed the request and cited a stipulation entered in Santa Barbara that the trustee would not be required to produce any documents in the quiet title action until Cheryl’s deposition was complete.  The trial court expressed “concern [that] people,” especially Cheryl and her former counsel, “have been dodging discovery.”  The court found that Cheryl’s first attorney had not “been responsive to the discovery request and I don’t think Ms. Lawson has been either.  Somebody has to pay . . . .”  Still, because the court had the physician’s declaration and could not “in good conscience endanger some lawyer’s life[,]” it postponed the trial from January 14, 2005 to March 14, 2005, but refused to reopen discovery.  Thereafter, Cheryl moved to reopen discovery for the “limited purpose” only of deposing affiants in connection with a motion for preliminary injunction.  On appeal, Cheryl contends that the trial court abused its discretion in denying her a continuance of the trial to allow discovery.

            b.  The law and conclusion

            The decisions to reopen discovery and to continue the trial are committed to the sound discretion of the trial court (Code Civ. Proc., § 2024.050, subd. (b); Lazarus v. Titmus (1998) 64 Cal.App.4th 1242, 1249), which cannot be disturbed on appeal without a clear showing of abuse.  (Lazarus, supra, citing from Foster v. Civil Service Com. (1983) 142 Cal.App.3d 444, 448.)  “ ‘ “ ‘The term [judicial discretion] implies the absence of arbitrary determination, capricious disposition or whimsical thinking.  It imports the exercise of discriminating judgment within the bounds of reason.  [¶]  To exercise the power of judicial discretion all the material facts in evidence must be known and considered, together also with the legal principles essential to an informed, intelligent and just decision.’ . . .”  [Citations.]  “The appropriate [appellate] test for abuse of discretion is whether the trial court exceeded the bounds of reason.”  [Citations.]’  [Citation.]”  (Hernandez v. Superior Court  (2004) 115 Cal.App.4th 1242, 1246 (Hernandez).)

            Requests to reopen discovery and to continue the trial present the trial court with competing mandates.  On the one hand the court is under statutory “obligations to enforce discovery cutoff dates and to set firm trial dates.  [Citations.]  Strict adherence to these delay reduction standards has dramatically reduced trial court backlogs and increased the likelihood that matters will be disposed of efficiently, to the benefit of every litigant.  [Citation.]”  (Hernandez, supra, 115 Cal.App.4th at p. 1246.)  On the other hand, a goal of delay reduction and calendar management is “to promote the just resolution of cases on their merits.  [Citations.]”  (Hernandez, supra, 115 Cal.App.4th at p. 1246, citing Thatcher v. Lucky Stores, Inc. (2000) 79 Cal.App.4th 1081, 1085.)  Thus, “decisions about whether to grant a continuance or extend discovery ‘must be made in an atmosphere of substantial justice.  When the two policies collide head-on, the strong public policy favoring disposition on the merits outweighs the competing policy favoring judicial efficiency.’  [Citation.]”  (Hernandez, supra, at p. 1246.)

            In short, as aptly explained by Justice Yegan in Hernandez, “What is required is balance.  ‘While it is true that a trial judge must have control of the courtroom and its calendar and must have discretion to deny a request for a continuance when there is no good cause for granting one, it is equally true that, absent [a lack of diligence or other abusive] circumstances . . . a request for a continuance supported by a showing of good cause usually ought to be granted.’  [Citation.]”  (Hernandez, supra, 115 Cal.App.4th at pp. 1246-1247, italics added; see also, Cal. Rules of Court, rule 3.1332(a), (b) & (c).)[5]

            The requisite balance was missing here.  (Hernandez, supra, 115 Cal.App.4th at p. 1247.)  Cheryl established good cause for her first continuance request in November 2004.  Cheryl’s attorney was ill at the time of the September 2004 status conference when the trial court set trial only four months later.  It is unfair to force parties, who are not chargeable with the health of their attorneys, to go to trial without adequately prepared counsel because of illness.  (See, id. at p. 1244.)  The court here gave Cheryl’s counsel no consideration for that fact.  “The death or serious illness of a trial attorney or a party ‘should, under normal circumstances, be considered good cause for granting the continuance of a trial date[.]’  (Cal. Stds. Jud. Admin., § 9.)  The same circumstances should generally constitute good cause to reopen discovery after a trial date has been continued.  [Citation.]”  (Hernandez, supra, at pp. 1247-1248; see also Code Civ. Proc., § 2024.050.)  While, admittedly, Cheryl’s counsel’s illness was nowhere as severe as the terminal illness of Hernandez’s attorney, the trial court here had no reason to think Cheryl’s attorney was not ill, the two situations lead to precisely the same legal result:  The absolute inability of a party, particularly the defendant here, to proceed at trial with the necessary tools in violation of the preference for trial on the merits.  (Elkins v. Superior Court (2007) 41 Cal.4th 1337, 1364; see also, Oliveros v. County of Los Angeles (2004) 120 Cal.App.4th 1389, 1398.) 

            Compounding the problems arising from Cheryl’s counsel’s illness, was the fact, as Cheryl argued in her continuance motion, that plaintiffs had performed, in the vernacular, a “squeeze play” by delaying service of the complaint on Cheryl.  The elder abuse complaint was first filed in June 2004.  Despite the fact that plaintiffs and Cheryl were in the same room together for eight days of her deposition during the summer of 2004, plaintiffs withheld service of the summons and complaint on her until the seventh day of that deposition, in September 2004.  Defendants then obtained a trial date four months later, in her attorney’s absence, thereby severely curtailing the time available for discovery.  In fact, the trial was scheduled before Cheryl had even filed her answer.  This record suggests that plaintiffs calculatedly delayed service of the elder abuse complaint on Cheryl so as to put her in a scheduling bind and force her to go to trial having conducted virtually no discovery.

            Nonetheless, Cheryl moved diligently in spite of this scheduling bind, plaintiffs’ assertion to the contrary notwithstanding.  The record shows that Cheryl was active between September -- when she first learned of the complaint and the trial date was set -- and November -- when she moved to continue the trial date and reopen discovery -- even in the face of her counsel’s illness and her late entry into the lawsuit.  She demurred to the complaint in October, the hearing on which was set for after the discovery cut-off date.  Then, she answered the complaint in early November 2004, requested production of documents and served a deposition notice.  That same month, Cheryl expeditiously made her first continuance motion, which was unsuccessful.  Although on the eve of trial the court granted Cheryl’s request to substitute counsel and continue trial, it specifically declined to reopen discovery.  (See fn. 6.)  Understandably, it would have been futile at that point, given the court’s declaration, for Cheryl’s new counsel to seek to reopen discovery.  Under the circumstances, Cheryl acted as diligently as could be expected.

            To dispute Cheryl’s diligence, plaintiffs argued to the trial court that she had been dodging their discovery.  Although the court found that Cheryl and her attorney had been ducking discovery, it failed to consider that the discovery conduct plaintiffs cited occurred in the quiet title action, not in the elder abuse suit.  The court also failed to consider that Cheryl had been suffering under stipulation in the quiet title action that no discovery would occur until Cheryl’s deposition was complete.[6]  The evidence shows that Cheryl had been attempting to mount a defense and to conduct discovery once she was served with the elder abuse complaint and her deposition was complete.  Furthermore, the court should have considered that some issues in an elder abuse action could be qualitatively different than those raised by a quiet title action, necessitating different and additional discovery.  The effect of the court’s ruling denying Cheryl her continuance request in November 2004 was to prevent Cheryl outright from defending the elder abuse allegations against her on the merits.

            Balanced against this was plaintiffs’ argument that they would be prejudiced by any continuance because the senior Lawsons were elderly and ill and needed to sell the Santa Barbara property to pay for their expenses.  This urgency is questionable where plaintiffs waited three months from June 2004 to September 2004 to serve the summons and complaint on Cheryl; they made no suggestion they could not have served her during first six days of the deposition.  Nor is there any evidence in this record that plaintiffs moved for trial preference under Code of Civil Procedure section 36,[7] a fact that further undermines plaintiffs’ asserted prejudice based on urgency.

            Meanwhile, Cheryl was manifestly prejudiced by the denial of her continuance motion because she was compelled to defend against the elder abuse allegations only four months after learning of it, without the benefit of any discovery.  Forcing Cheryl to go to trial four months after service of the complaint, during which time she had an ill attorney and no opportunity for discovery, constituted a denial of her right to due process and a manifest abuse of discretion.

            Although this result compels the reversal of the entire judgment, for the guidance of the trial court on remand (Code Civ. Proc., § 43), we also address Cheryl’s challenges to the trustee and attorney’s fees and the damages.

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