Wednesday, April 12, 2017
Pro Per Lawyer Who Failed to Participate in Malpractice Trial Is Denied a Reversal
By a MetNews Staff Writer
A Tarzana attorney who requested a continuance on the morning of the trial of a malpractice action against him and who, being denied a delay, sat in the back of the courtroom while the plaintiff’s case was presented and put on no defense, yesterday lost his bid for reversal of the judgment against him.
Div. Seven of this district’s Court of Appeal, in an opinion that was not certified for publication, rejected the contention of estate-planning lawyer Howard Bartnof that a new trial should be ordered because then-Los Angeles Superior Court Judge Suzanne G. Bruguera (now a private judge) abused her discretion by denying a continuance. In his opening brief, he insisted that the postponement he sought was “necessitated by the untimely death” of his brother.
Justice Laurie Zelon wrote:
“[I]t is clear that the trial court did not abuse its discretion in declining to grant a continuance based on the death of Bartnof’s brother because, contrary to the assertions in his brief, Bartnof never requested a continuance on that basis….
“The trial court did not abuse its discretion by declining to grant a continuance for a reason that was never presented to it.”
Zelon pointed out in a footnote:
“Even if Bartnof had raised his brother’s death as a basis for a continuance, the trial court would have been justified in denying the request. Under the California Rules of Court, a party seeking a continuance of the trial must: (1) make the request by a noticed motion or an ex parte application; (2) provide ‘supporting declarations’; and (3) make the motion or application ‘as soon as reasonably practical once the necessity for the continuance is discovered.’…Bartnof failed to comply with any of those requirements. First, he did not file a noticed motion or an ex parte application. Instead, he made an oral request for a continuance on the morning of trial. Second, he did not provide a declaration or any other evidence in support of his request. Third, it does not appear he made his motion for a continuance as soon as “reasonably practical.” His opening brief states that his brother died on April 15, 2015, almost a month before Bartnof made his oral motion for a continuance. Given the amount of time he waited to request the continuance, and his failure to provide any evidence in support thereof, the trial court would have been justified in denying the request.”
The case is Chaudhary v. Bartnof, B265371.
This was the second time the Court of Appeal considered an appeal in the case. In 2013, it reversed Bruguera’s grant of summary judgment in favor of Bartnof.
While Bartnof represented himself in that appeal, he was represented by Louis V. Kosnett in the appeal decided yesterday. Kevin P. Hall of Kull and Hall acted in both appeals and at trial for plaintiff Aman Chaudhary whose late father was Bartnof’s client.
Chaudhary, the sole beneficiary of a trust set up by his father, contended that Bartnof was negligent in advising the father to remove certain properties from that trust. In the 2013 opinion, Div. Seven rejected Bruguera’s conclusion that Bartnof owed no duty of care to Chaudhary.
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