Metropolitan News-Enterprise


Tuesday, February 24, 2004


Page 1


Death of Counsel Requires Granting Continuance, Reopening Discovery, Court of Appeal Rules


By a MetNews Staff Writer


A Ventura Superior Court judge abused his discretion when he denied a request to reopen discovery and granted only a five-week continuance to a plaintiff whose attorney died, this district’s Court of Appeal ruled yesterday.

Citing California’s Standards of Judicial Administration, Justice Kenneth T. Yegan of Div. Six declared:

“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[.]’—.The same circumstances should generally constitute good cause to reopen discovery after a trial date has been continued.”

Yegan said Ventura Superior Court Judge Steven Hintz erred in denying John S. Hernandez’s request to reopen discovery, supplement his witness list, and delay trial until his new lawyer was available after the attorney representing him in his personal injury suit died of pancreatic cancer.

At a hearing in October, Hintz noted the trial had already been continued for three months due to the lawyer’s illness. The judge told Hernandez:

“And now a month after he dies, you come in and ask for more time. That could have been done better.”

The lawyer had failed to designate an expert on liability issues for trial, missing the deadline to do so, but Hintz ruled it would be prejudicial to extend the deadline.

Yegan, noting that Hernandez himself was also scheduled for spinal surgery only weeks before the trial date Hintz set, said Hintz abused his discretion as a matter of law.

He wrote:

“If plaintiff’s counsel’s serious physical illness and its debilitating effects culminating in death during the final stages of litigation are not good cause for continuing a trial and reopening of discovery, there is no such thing as good cause. A plaintiff in a personal injury action is not chargeable with the continued good health of his or her attorney.  Forcing such a plaintiff to trial without counsel or adequately prepared counsel is not likely to ensure fairness, the overall policy of the law.” 

The justice conceded that the Court of Appeal “does not and should not micromanage law and motion rulings.” But he explained:

“[S]ome writ applications are more ‘writ worthy’ than others—.[A]bsent our intervention here, petitioner would face the probability of trial without counsel or adequately prepared counsel in a serious personal injury trial.”

Hintz, Yegan said, failed to strike the appropriate balance between the need for efficiency in the trial courts and the goal of promoting the “just resolution of cases on their merits.”

He noted that Hernandez’s first lawyer died only 33 days after missing the final deadline to name a liability expert for trial.

“It is possible that [the attorney] provided effective representation during this crucial phase of the litigation,” Yegan said. “But common sense and respect for the grim reality of terminal illness make it more likely that, during the waning period of his life, [he] was not as organized, focused or vigorous an advocate as he had been in healthier times. The fact that [he] designated no experts on liability issues, even though real party included an accident reconstruction expert on his list, demonstrates the point.”

The defendant in the litigation, Yegan said, never supported his claims of prejudice with any evidence.

The justice commented:

“Real party’s claims would be more plausible if [the attorney] had been healthy in the weeks leading up to the initial trial date, and then died in an accident or in some other unforeseen manner. But he wasn’t healthy. He was dying of pancreatic cancer. We cannot assume that [he] was able to conduct business as usual while in the grip of such a severe illness. The trial court failed to appreciate that this medical condition adversely impacted his trial preparations. Similarly, real party’s assertion that petitioner was delaying the trial so he could ‘shop around for attorneys’ would make sense if petitioner had been dilatory in his search. But he wasn’t. He started looking for a new lawyer the very day he learned of [his lawyer’s] death, and he filed his ex parte application only 12 business days later.”

The case is Hernandez v. Superior Court (Neal), B171030.


Copyright 2004, Metropolitan News Company