Lawmaker Not Always Entitled to Continuance

Friday, October 14, 2016

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Court of Appeal Holds:

Lawmaker Not Always Entitled to Continuance

By KENNETH OFGANG, Staff Writer

A statute providing for a continuance of a trial or hearing in a lawsuit if an attorney of record is a member of the Legislature is directory, not mandatory, and subject to exceptions, the Fourth District Court of Appeal has ruled.

Div. Three Wednesday denied a writ of mandate sought by Verio Healthcare, Inc. and its principals in litigation brought against them by SG Homecare, Inc. The plaintiff alleges that Verio’s principals, who are former employees of SG, breached contractual and fiduciary duties and stole trade secrets.

One Verio principal, Eric Schrier, filed a cross-complaint, alleging that SG Homecare and its principal, Thomas Rowley, wrongfully terminated him. The Verio parties are represented by Assemblymember Donald Wagner, R-Costa Mesa, of Buchalter Nemer.

The SG parties moved to disqualify Buchalter Nemer, alleging that SG Homecare had a retainer agreement with the firm before the Verio principals left, and that there was a substantial relationship between the new litigation and the firm’s prior representation of SG Homecare.

The defendants also moved for a nine-month continuance based on Wagner’s status as a legislator. They cited Code of Civil Procedure §§595 and 1054.1, providing that attorneys who are members of the state Legislature are entitled to a continuance and an extension of time respectively unless the continuance or extension would defeat or abridge the other party’s right to provisional or pendente lite relief.

In their opposition, the plaintiffs cited Thurmond v. Superior Court (1967) 66 Cal.2d 836, which held that an earlier version of the statutes had to be interpreted as directory in order to avoid a constitutional conflict regarding the separation of powers between the Legislature and the Judicial branch.

Orange Superior Court Judge Sheila Fell denied the motion without explanation. The Court of Appeal initially denied a writ summarily, but was directed to hear the merits by the state Supreme Court.

Justice Raymond Ikola, writing for the panel, said that a 1968 amendment to the statutes, stating that a continuance “is mandatory unless the court determines that such continuance would defeat or abridge a…right to invoke a provisional remedy such as…temporary restraining order or preliminary injunction,” suffers from the same constitutional problem as the pre-Thurmond legislation.

“Unless sections 595 and 1054.1, subdivision (b) are interpreted as directory, they continue to infringe on the independence of the judiciary,” Ikola wrote.

He cited People v. Engram (2010) 50 Cal.4th 1131, which arose out of the dispute between the Riverside Superior Court leadership and then-District Attorney Rod Pacheco over the handling of criminal cases that were about to reach the speedy trial deadline. The high court held that Penal Code §1050, which gives criminal cases precedence over other types of litigation, does not impose an “absolute, inflexible command” that all other court business be set aside to try criminal cases.

The justices agreed with the lower courts that an accused burglar was entitled to a speedy trial dismissal because the statute does not require that juvenile, family, and probate departments be given over to criminal trials when no other department is available.

Ikola explained that the separation-of-powers analysis was not critical to the Engram decision because the statute gave criminal cases priority “consistent with the ends of justice.” But the trial judge’s decision to deny a continuance is consistent with Thurmond, he said, because it reasonably balances “the nature and urgency of the rights involved” and the ability of Wagner’s clients to secure other counsel against whatever detriment would be incurred as a result of not having their chosen counsel available.

Ikola also concluded that the “provisional remedy” exception to the statute applies because the plaintiffs may seek a preliminary injunction.

The case is Verio Healthcare, Inc. v. Superior Court (SG Homecare, Inc.), 16 S.O.S. 5033.