Metropolitan News-Enterprise


Tuesday, February 20, 2024


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Eve-of-Trial Departure of Lawyer Was Not Prejudicial—C.A.

Dato Says Judge Abused Discretion in Summarily Denying Continuance So That Father in Custody Case Could Have Had the Opportunity to Obtain New Counsel, Says That Error Was Harmless; No Reversal


By a MetNews Staff Writer


Div. One of the Fourth District Court of Appeal held Friday that after granting permission to a lawyer to withdraw from a case in which trial was scheduled to commence the following day, the judge erred in summarily denying a continuance rather than weighing the consequences of a party being unrepresented, but the error, the panel held, was harmless.

Its stance is at odds with that of Div. Four of the Court of Appeal for this district which, in 1975, found such an abuse of discretion to constitute reversible error per se.

Justice William Dato authored the opinion. In it, he faults the conduct of San Diego Superior Court Judge Sharon L. Kalemkiarian but finds that her failure to make the requisite inquiries was not prejudicial because her decision—awarding sole child custody to the mother, Vera Delgado—would probably have been the same had the father, Robert Delgado, been given time to find substitute counsel.

 At a specially-called hearing to determine if the father’s lawyer should be allowed to withdraw on the eve of trial, Kalemkiarian determined that withdrawal was required because the client sought actions which the lawyer deemed frivolous and unethical. But, having previously proclaimed that there would be no further continuances, insisted that trial of the custody issue start the next day, as scheduled.

Dato’s Opinion

Dato wrote:

“We agree that when it permits the withdrawal of counsel on the eve of trial, the court has a special obligation to assess the length of a continuance that would be required for the affected party to obtain a new lawyer and balance that against other pertinent circumstances that would be adversely affected by a delay in the proceedings. Where the court makes this assessment and engages in the appropriate weighing of competing interests, its decision will not be reversed absent an abuse of discretion.

“Here, the trial court never inquired about the length of the continuance that was being sought or might be required, making it impossible to perform the required balancing analysis. Instead, it simply declared there would be no continuance and then (commendably) attempted to explain what it could do to accommodate the now-self-represented family law litigant. It is thus the failure to inquire and assess that constitutes an abuse of discretion in this case. Even so, however, Robert has not shown that the court’s error resulted in a ‘miscarriage of justice’ for purposes of article VI, section 13 of the California Constitution. Accordingly, we affirm.”

That section says:

“No judgment shall be set aside, or new trial granted, in any cause, on the ground of misdirection of the jury, or of the improper admission or rejection of evidence, or for any error as to any matter of pleading, or for any error as to any matter of procedure, unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice.”

Judge’s Forewarning

The jurist noted that denying Robert Delgado’s request for a continuance was consistent with her previous pronouncement that no further requests for a delay would be entertained.

“Consistency may be a virtue, but as Ralph Waldo Emerson reminds us, ‘A foolish consistency is the hobgoblin of little minds,’ ” Dato said. “The appropriate exercise of judicial discretion requires the judge to reexamine tentative conclusions in light of changed circumstances.”

He continued:

“Here, the decision to permit the withdrawal of counsel on the eve of trial is nothing if not a changed circumstance. The court could not merely rely on its prior statements, but was instead required to revisit the reasons those statements to determine whether they still applied in light of the changed circumstance.”

1975 Decision

The father pointed to the 1975 decision in Vann v. Shilleh. The court in that case reversed a judgment in a contract case because the judge, after granting a lawyer’s request to withdraw on a Friday, ordered that trial proceed the next Monday, with the defendant corporation being represented by a layperson.

That, the court said, was an abuse of discretion, requiring a new trial. The matter of prejudice was not considered.

“While the decision of a sister appellate court is entitled to our thoughtful consideration, it is not binding on us,” Dato noted, adding:

“Because Vann gives no reason for its conclusion that the error was reversible without any discussion of prejudice, we do not find it particularly persuasive on this point. Moreover, we are bound by the California Constitution’s dictate that we may reverse only if there has been a ‘miscarriage of justice.’

Constitutional Issue

The 1975 opinion, by Acting Presiding Justice Robert Kingsley (now deceased) brings up a due-process issue, saying:

“Plaintiffs argue that denial of a continuance is not a deprivation of due process of law. But the right to a hearing includes the right to appear by counsel….Therefore, appellants were constitutionally entitled to counsel. However, in view of our holding that we reverse on the grounds that the denial of the continuance was an abuse of discretion…we need not also decide whether the court denied to defendants a constitutional right to due process of law.”

Dato disagreed that the defendants were “constitutionally entitled to counsel.” After observing that his panel is “not bound to follow any court’s dicta,” he commented:

“In general, although a party has the right to appear through counsel if a lawyer has been retained…, there ‘is no due process right to counsel in civil cases’….There is no statute or court rule mandating counsel in dissolution proceedings.”

He added:

“[W]e must engage in a prejudice analysis—assessing whether the lack of representation affected the result—to decide whether the party’s due process rights were violated. Accordingly, because the lack of representation in such circumstances does not inherently offend due process, we cannot conclude that the error here is a structural one requiring per se reversal.”

Dato discerned lack of prejudice based on Kalemkiarian’s finding that Robert Delgado was too headstrong to bow to any desires of the mother as to bringing up their four children.

The case is Marriage of Tara and Robert D, 2024 S.O.S. 607.


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