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Court of Appeal:
Denial of Delay After Lawyer Withdrew Mid-Trial Was Proper
Opinion Says Trial Judge Did Not Abuse Discretion in Denying Continuance Where Attorney Stepped Down Over Ethical Concerns About Presenting Defense, Client Has Previously Represented Himself in Case
By Kimber Cooley, associate editor
Div. Seven of this district’s Court of Appeal has held that Los Angeles Superior Court Judge Holly J. Fujie did not err in denying a defendant’s request for a continuance after his attorney withdrew during the second day of a bench trial, finding that the fact that the lawyer’s request was predicated on ethical concerns over presenting the defense and the client had intermittently represented himself in the case, as well as other factors, supported the decision.
In an unpublished opinion filed Tuesday, authored by Justice Natalie P. Stone, and joined in by Presiding Justice Gonzalo Martinez and San Diego Superior Court Judge Michael Pulos, sitting by assignment, the court said:
“Where a litigant’s attorney withdraws from a case just before or during trial, leaving the litigant with insufficient time to procure new counsel, a trial court will very often be justified in granting a continuance….However, even in such circumstances, a trial court is not obligated to grant a continuance, or to grant to one of any particular length.”
The request for a continuance came in litigation between former friends over title to certain properties held in a trust created by Stuart Zubrick. The sole beneficiary of the trust was City of Hope, a clinical research center, hospital and graduate school.
In 2013, Zubrick amended the revocable trust to appoint his friend, Sahibzada Aasim Akhtar, as a successor trustee. In January 2017, Zubrick discovered that Akhtar had recorded certifications of trust for the parcels at issue, declared himself trustee, and recorded a grant deed purporting to transfer both parcels to himself.
Quiet Title Complaint
In February 2017, Zubrick filed a complaint for quiet title to the properties. Akhtar filed a cross-complaint against Zubrick and certain other parties, asserting breach of contract and related claims based on the same set of facts underlying the original pleading.
On the day the trial was set to begin in May 2022, Akhtar filed for bankruptcy, causing an automatic stay of the state court proceedings. After the bankruptcy court lifted the stay, the matter was set for trial in September 2022.
In August, Fujie granted Akhtar’s request to allow Patricia Rodriguez to substitute in as counsel on the complaint and continued the trial for approximately one month to allow the new attorney to get up to speed on the case.
Rodriguez was the fifth attorney to act for him in the matter, and Akhtar was self-represented as a defendant for over a year—from June 2021 until July 2022—and on his cross-complaint from June 2021 until the completion of the trial.
At the outset of the second day of trial, Rodriguez moved to withdraw, citing California Rule of Professional Conduct 1.16, expressing a concern that Akhtar’s defense “lacks probable cause or is for a harassing or malicious purpose” and indicating that her communication with her client had completely broken down. Akhtar did not contradict Rodriguez’s representations to the court.
Fujie granted Rodriguez’s motion to withdraw and gave Akhtar two days to find new counsel or proceed in pro per. When trial reconvened, Akhtar made an oral request to continue the trial “for a few days” so he could get ready for trial; he did not submit a written request or accompanying declaration.
The judge denied the request, noting that he had failed to pick up the case file from Rodriguez and that he had expressed a desire to wrap up the years-old case. In February 2023, the court found that the grant deed and other documents produced by Akhtar were “forged or fraudulent.”
Judgment was entered in favor of Zubrick. Tuesday’s opinion affirms the judgment.
No Abuse
Stone noted that “[d]ue to…deficiencies in his briefing, Akhtar has not properly supported his arguments on appeal and has forfeited them” but considered the merits of the appeal, saying the litigant had “failed to show the court abused its discretion” in denying his request for a continuance.
She explained that trial continuances are disfavored and may only be granted on a showing of good cause. Quoting from applicable Rules of Court, the jurist remarked:
“Among the circumstances that may constitute good cause are ‘[t]he unavailability of trial counsel because of death, illness, or other excusable circumstances’ and ‘the substitution of trial counsel, but only where there is an affirmative showing that the substitution is required in the interests of justice.’…Other pertinent factors include the proximity of the trial date, whether there was any previous continuance or delay of trial, and the prejudice that parties or witnesses would suffer because of the continuance.”
Considering the circumstances surrounding the request for a continuance in this case, she opined:
“Akhtar’s argument that the court erred in denying a continuance is unavailing for several reasons. First, he failed to meet the requirement to file an ex parte application for a continuance, supported by a declaration….While representing himself, Akhtar had previously filed such motions and knew the procedure, yet did not do so here.”
She continued:
“Second, even if Akhtar’s request had been properly made, the trial court properly considered all the relevant circumstances and determined that the exceptional circumstances here justified its denial of the continuance request. To begin with, it was Akhtar’s conduct that led his attorney, Rodriguez, to withdraw….Thus, this is unlike the typical situation where a blameless litigant finds himself or herself without representation at the outset of trial.”
Long Represented Himself
The justice went on to say:
“Akhtar had long represented himself in the case, which had been pending for over five years….He was poised to represent himself in a jury trial on cross-claims that implicated the same factual and legal issues. And Rodriguez had only recently entered the case to defend him against Zubrick’s claims.”
Noting that Zubrick had demonstrated that he would be prejudiced by any further delay due to the fact that one of his witnesses needed to leave the country and the fact that he was facing tax issues that would be affected by the outcome of the case, Stone said:
“[T]he court was mindful that Akhtar had repeatedly attempted to delay the trial, including by filing for bankruptcy admittedly for the sole purpose of delaying the trial….The court had already granted prior continuances for Akhtar’s new attorneys to get up to speed[,] most recently in August 2022 when Rodriguez requested time to prepare.”
She also noted that the case was “at the brink of the deadline” set forth in Code of Civil Procedure §583.310, which requires an action to be brought to trial within five years. Under these circumstances, she declared:
“We find no abuse of discretion given the unique circumstances here.”
The case is Zubrick v. Akhtar, B329182.
Zubrick was represented by David Dai-Wung Fu and Vigen Stepanyan of the Arcadia firm David Fu & Associates, and Jessica L. Ponce, with an office in Los Angeles. Acting for Aktar were Neil J. Kantor and Charlene J Wynder of Buxbaum Chakmak & Wynder PC, based in Claremont.
Kantor had never officially been substituted in as counsel but was one of the five attorneys who acted on Akhtar’s behalf in the trial court, having filed documents with the court.
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