Tuesday, October 1, 2019
Court of Appeal:
Judge Did Not Abuse Discretion in Denying Delay Where Member of Firm in Charge Of Defense in Civil Case Resigned Five Days Before Trial Date, Opinion Says
By a MetNews Staff Writer
The First District Court of Appeal has held that a judge did not abuse her discretion in denying, on a Friday, the continuance of a trial set to begin the following Monday where the ground was that the lawyer handling the defendants’ case had resigned from his firm two days earlier, effective immediately.
Justice Tracie L. Brown of Div. Four wrote the opinion which affirms Rocio Hendrix’s $827,552 judgment in a slip-and-fall case against Jamestown Premier GHRSQ, LP, the company that manages San Francisco’s Ghirardelli Square. The opinion, filed Friday and not certified for publication, rejects the contention that a reversal is required based on San Francisco Superior Court Judge Suzanne Bolanos’s denial of an ex parte motion for a continuance.
Jamestown relied on the 1975 case of Vann v. Shilleh, decided by Div. Four of this district’s Court of Appeal. There, the defendants’ lawyer withdrew, with the court’s permission on a Friday; the trial was scheduled to start Monday.
On that Monday, Los Angeles Superior Court Judge Stephen R. Stothers (now deceased) declined to grant a continuance so that the defendants could secure counsel.
Stothers Abused Discretion
“A denial of a request for a continuance constitutes an abuse of discretion where the ruling is arbitrary, capricious, and contrary to the interests of justice under all the circumstances,” Justice Robert Kingsley (also deceased) wrote, declaring that “the facts before us justified the granting of a continuance.”
Brown found that case inapposite because it entailed arbitrariness on the part of Stothers and client-abandonment by the defendants’ lawyer.
In Vann, Kingsley said:
“The denial by Judge Stothers was peremptory and based solely on a policy against continuances, without considering whether the case before it justified a departure from that salutary policy. Defendant was entitled to the exercise of an informed discretion; the record does not evidence any attempt to exercise any discretion.”
He also observed that it was Stothers’s duty to protect the defendants “from the consequences” of the lawyer’s “improper abandonment of his client.”
“Where, as here, the ex parte proceedings regarding the trial continuance were unreported, we do not presume that the trial court denied the continuance on an improper basis and instead presume that it based its decision on a proper assessment of the facts—which differ from those in Vann. First, the trial court did not grant an attorney’s motion to withdraw right before trial and then deny the parties’ joint request to continue the trial. No motion to withdraw occurred in this case because the firm that served as defendants’ counsel of record remained counsel of record, and counsel of record did not abandon its clients.”
“Further, while defendants argue on appeal that the failure to grant a continuance prevented them from adequately preparing for trial and retaining experts, the evidence submitted in response to defendants’ motion for a new trial strongly suggests that it was defendants’ initial trial counsel’s lack of preparation, including his failure to hire experts and conduct depositions, that caused the issues that defendants complain of on appeal.”
The case is Hendrix v. Jamestown Property Management, LLC, A153069.
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