C.A.: Denying Delay to County Lawyer Was Abuse of Discretion

Thursday, July 29, 2004

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C.A.: Denying Delay to County Lawyer Was Abuse of Discretion

Attorneys ‘Are Not Fungible,’ Majority Says; Dissenter Argues Nonappearance Waived Issue of Continuance

By DAVID WATSON, Staff Writer

Los Angeles Superior Court Judge Josh M. Fredricks abused his discretion in conducting a 2002 medical malpractice trial in which Los Angeles County went unrepresented because of a lawyer’s scheduling conflict and directing a $12.5 million verdict in favor of the plaintiffs, this district’s Court of Appeal ruled yesterday.

Justice Orville A. Armstrong of Div. Five said Fredricks failed to appropriately balance the competing interests involved before denying a continuance sought by the county’s private counsel, George Peterson of Bonne, Bridges, Mueller, O’Keefe & Nichols. Peterson was unable to appear for a scheduled trial in July of 2002 because he was trying another case in Compton.

Fredricks, noting that Bonne Bridges is a firm of some 80 lawyers, granted a six-day continuance but told Peterson someone from the firm should be able to try the case, in which 43 witnesses, among them 18 experts, had been deposed. The trial had been estimated to take three weeks.

Justice Richard M. Mosk concurred in the opinion authored by Armstrong, but Presiding Justice Paul A. Turner dissented, arguing that by failing to send any lawyer to represent it at trial the county had waived its rights.

One of the plaintiffs, Veronica Oliveros, suffered a brain injury following open-heart surgery at Harbor General-UCLA Medical Center. The suit she and her husband filed included causes of action for products liability, loss of services, and loss of consortium as well as medical malpractice.

The plaintiffs claimed Oliveros’ injuries were caused by the hospital’s failure to replace her respiratory tube when it became dislodged on the morning following her surgery. Much of the pretrial preparation was conducted by Bonne Bridges lawyer Alexander Cobb, but Cobb retired several months before trial and Peterson took over the case.

Peterson advised Fredricks of the potential conflict with the Compton case, but said he had been advised that opposing counsel in that case would seek a delay. Instead, the Compton plaintiffs hired a new lawyer who announced ready for trial.

Because the Compton case was the earlier filed of the two, the judge in that case said it had priority.

Peterson told Fredricks no other experienced lawyer at Bonne Bridges was available to try the Oliveros case, and suggested the firm would be willing to have monetary sanctions imposed against it as an alternative to going forward on the scheduled date. A principal deputy county counsel told Fredricks that no lawyer other than Peterson could prepare to try the case on such short notice.

But the judge told Peterson the scheduling conflict was “not my problem,” commented that he thought the attorney took on “too many cases,” and said the lawyer’s “management practices cannot become my crisis.”

After denying Peterson’s request for a further delay, Fredricks excused the lawyer to return to his Compton trial. He then heard motions and conducted jury voir dire and a four-day trial with no attorney for the defendant present.

After its motions to vacate the judgment and for a new trial were denied, the county appealed.

Armstrong acknowledged that the Trial Court Delay Reduction Act gives judges broad authority to control the pace of litigation. But, citing Bahl v. Bank of America (2001) 89 Cal.App.4th 389, the justice said that the public policy favoring judicial efficiency must be balanced against the policy favoring disposition of cases on their merits.

“Here, the record is devoid of the balancing of these competing interests,” Armstrong declared.

The trial judge, he noted, had told Peterson after denying his request for a delay:

“You probably heard all of these judicial guidelines for getting cases done. In September this case is two years old. It’s already 18 months old. I’m supposed to have 98 percent of all my cases done within 18 months, 100 percent done within two years. So if this was filed 9/15/00, 9/15/02 is the two-year date. So I have to get this thing tried.”

The justice observed:

“The trial court viewed the problem presented too narrowly. [T]he court must look beyond the limited facts which cause a litigant to request a last-minute continuance and consider the degree of diligence in his or her efforts to bring the case to trial, including participating in earlier court hearings, conducting discovery, and preparing for trial.”

Armstrong noted that Peterson had spent over 250 hours preparing the case for trial.

He explained:

“The judge’s opinion notwithstanding, lawyers are not fungible. The court’s suggestion that any person with a license to practice law, or at least one associated with a ‘big’ law firm, could come to court without any preparation and try a complicated medical malpractice case in which the plaintiff was particularly sympathetic yet liability was far from certain, belies an understanding of the subtleties of such litigation.”

The justice continued:

“We note as well that, while the trial court chastised Mr. Peterson for losing control of his calendar and attempting to control the court’s calendar, it is a fact of life that a trial lawyer’s time is not his own. [T]he trial court was well off the mark in announcing that the scheduling conflict before him was ‘not my problem.’ To the contrary, because this scheduling conflict affected the administration of justice, it was indeed the judge’s problem, and one that he was obligated to make every effort to address in a manner which ensured the just resolution of the case before him. In the absence of evidence of a lack of good faith, the trial court as well as counsel on both sides should acknowledge the scheduling difficulties which from time to time disrupt the flow of litigation, and consider reasonable solutions which satisfy the interests of all parties.”

Last year, Armstrong observed, the California Judicial Council repealed language in the Standards for Judicial Administration approving trial continuances only where the “necessity for the continuance—resulted from an emergency occurring after the trial setting conference,” and also revised Rule 375 of the California Rules of Court to provide that counsel’s engagement in another trial may constitute good cause for a continuance.

Fredricks’ decision was “tantamount to a terminating sanction,” Armstrong opined, adding that such sanctions are only appropriate as a last resort after a party has unjustifiably failed to comply with court orders.

Turner’s single-sentence dissent cited four grounds for affirming the judgment against the county.

The county’s “inexcusable failure to even send a single lawyer to attend the trial forfeits all of their claims,” the presiding justice asserted, adding that its “deliberate strategic decision not to appear at the trial” also justified Fredricks’ denial of the motion to vacate.

Turner said the county had not shown a reasonable probability that it would have achieved a better result if a continuance had been granted and that the trial court “did not abuse its discretion when it granted a six-day continuance to allow defendant, one of the largest public entities in the nation, the opportunity to have its counsel, a large law firm which had chosen to set too many cases for trial, time to get ready to try the case.”

The case is Oliveros v. County of Los Angeles, B163333.