Tuesday, June 9, 2026
Page 3
Court of Appeal:
No Error in Forcing Second-Chair Attorney to Take Over Trial
Opinion Says Judge Acted Within Discretion in Denying Continuance Based on Lead Counsel Having Tested Positive for COVID-19
By Kimber Cooley, associate editor
Div. One of the First District Court of Appeal has held that a trial judge did not err in denying a mid-trial continuance to a defendant after his lead attorney announced that she had tested positive for COVID-19, finding no abuse of discretion in the determination that a second-chair lawyer with allegedly limited civil experience could take over the case involving a car collision for a few days while she recovered in isolation.
Acknowledging that “[t]he unavailability of trial counsel because of…illness” is one of the circumstances that may justify a good-cause continuance under California Rule of Court 3.1332(c), Justice Monique Langhorne Wilson, writing for the court, pointed to subdivision (d), which provides that a judge “must consider all the facts and circumstances that are relevant to the determination.” She remarked:
“While [the defendant] argues on appeal that [the second-chair attorney’s] civil trial experience ‘paled in comparison’ to that of [the lead counsel] and that [the more junior lawyer] lacked familiarity with the case, no such concerns were raised until the third day of [of the lead’s] quarantine, when [the second-chair counsel] told the court he had limited experience litigating civil trials and examining expert witnesses….[T]he court had information from which it could conclude that [he was] was capable of proceeding….”
Saying that the lawyer had been invited to brief whether the denial would interfere with the client’s right to have the attorney of his choosing but that “it seems that [he] did not” do so, she declared:
“The trial court acted within its discretion in denying a continuance…..”
Friday’s unpublished decision, joined in by Presiding Justice James M. Humes and Justice Kathleen Banke, affirms a judgment entered after the jury returned a more than $4 million verdict in favor of the plaintiff.
Minimal Civil Experience
Appealing the judgment against him was Joshua Westbrook, who asserted in his opening brief that the second-chair lawyer was formerly an officer in the Air Force Judge Advocate General Corps with minimal civil experience at the time of the trial. He alleged:
“[T]he trial court abused its discretion by denying Westbrook’s request for a short trial continuance after his lead counsel contracted COVID and was forced to quarantine for four days. In her absence, the court compelled an associate at her firm—who had been admitted to the California Bar only two years earlier and who had no experience handling expert testimony at trial—to assume sole responsibility for defending Westbrook in this complex and contentious case. This ruling set the stage for a flawed trial and an unjust verdict.”
Westbrook had been involved in a September 2018 car accident with a vehicle that was being driven by Mohammed Alsaedi, who, together with his wife, filed a complaint against Westbrook in 2020, asserting negligence and loss of consortium claims based on alleged catastrophic injuries.
The case proceeded to trial in December 2023, with Mary Kathleen Talmachoff, a partner at Bates Winter & Associates LLP, serving as Westbrook’s lead attorney. After testimony began, Talmachoff emailed the court, on Jan. 1, 2024, to say that she had tested positive for COVID-19 and would need to quarantine through Friday, Jan. 5.
Associate Attorney
A dispute arose over whether Joel C. Knaack, an associate with the firm who had handled certain portions of the case, could take over the trial.
Knaack asserted that he did “not have authority to take over this trial” in its entirety, saying that he had been “authorized…to be present for the playing of video depositions” and for the testimony of two plaintiff’s witnesses but that he did not have permission to examine any other individuals. San Francisco Superior Court Judge Christopher Hite ruled that Knaack was “capable of proceeding…with the case.”
Hite noted that Talmachoff could appear via Zoom and communicate with the associate through email or text. After two days of testimony were conducted in her absence, Talmachoff emailed the court to complain that she was unable to watch the trial due to childcare issues and to assert that, while she did not object to Knaack proceeding with examining two defense lay witnesses, she wished to be present for any other examinations.
Hite declined to address whether a continuance would be appropriate if Talmachoff was unable to return on Monday Jan. 8, 2024. She did appear on that day. Noting that Westbrook never formally requested a continuance, as the parties simply began discussing whether Knaack could proceed after Talmachoff disclosed her COVID-19 test results, Langhorne Wilson said:
“Assuming without deciding that Westbrook preserved his claim for appellate review, we find no abuse of discretion.”
She opined:
“[W[hile Westbrook now takes issue with the court’s conclusion that Knaack could competently step in as lead counsel in Talmachoff’s absence, Knaack and Talmachoff’s only specific objection to proceeding with trial during Talmachoff’s quarantine was that Westbrook was entitled to the attorney of his choosing. We see no error in the court proceeding with trial over this objection.”
Pointing out that continuances after trial has begun are disfavored, and that trial courts retain broad discretion in ruling on a motion seeking to delay the proceedings, the jurist noted:
“Good cause may arise due to counsel’s unexpected illness, but the court must consider all the relevant facts and circumstances, including the proximity of the trial date, whether there were prior continuances, the length of the requested continuance, the availability of alternative means to address the problem, prejudice to the parties, and whether the parties stipulated to the continuance.”
Applying those principles, she concluded:
“[T]he trial court could have reasonably concluded that Knaack could competently oversee the case in Talmachoff’s absence….Knaack had been second chair since the beginning of trial and his name was on pre-trial pleadings, indicating he was familiar with the case. Moreover, the court had observed Knaack handle several witnesses by that point, and, based on those observations, it concluded Knaack was capable of proceeding with trial in Talmachoff’s absence.”
Saying that “other factors…weighed in favor of denying the continuance,” she remarked that “the request for a continuance occurred near the end of a weeks-long trial” and Hite had explained that the length of the proceedings had exceeded the timeline discussed with the panel.
The case is Alsaedi v. Westbrook, A170425.
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