Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Los Angeles County No. LC081743 Michael A. Latin, Judge.
Leonard Chaitin for Plaintiff and Appellant.
Law Offices of Farrah Mirabel and Farrah Mirabel for Defendants and Respondents.
CROSKEY, Acting P. J.
Plaintiff Jacqueline Bazikian (plaintiff) appeals from a judgment of dismissal. The case was dismissed after the trial court denied plaintiff’s request to continue the trial date and plaintiff responded by saying that she wished to dismiss the case without prejudice. Although the case was dismissed with prejudice, plaintiff is not challenging that ruling. Rather, she asserts that the court abused its discretion when it did not grant her request to delay the start of trial. That request was made 11 days before trial was scheduled to begin. Plaintiff had been prosecuting the case in an inpropria persona status, and it was only shortly before the requested continuance that she retained an attorney to represent her.
We find that, under the circumstances of this case, there was no abuse of discretion when the trial court declined to grant a delay of trial. We will therefore affirm the judgment.
BACKGROUND OF THE CASE
This is a suit claiming medical negligence. Defendants are Parvin Mirabadi, M.D. and Sunrise Surgical Center (defendants). The case was filed on June 13, 2008, and plaintiff was represented by attorney Benjamin Fogel at that time. Defendants’ answer was filed on October 6, 2008. Trial was set for October 26, 2009. In December of 2008 plaintiff’s attorney substituted out of the case and plaintiff began representing herself. In June of 2009, defendants filed a motion for summary judgment which was denied in September of 2009.
Trial was set to begin on October 26, 2009. On October 15, 2009, plaintiff filed an ex parte application for an order continuing the trial and reopening discovery, or alternatively, an order an order shortening time to hear a noticed motion. Attorney Peter T. Brown was representing plaintiff at that time. Plaintiff’s ex parte application states that Brown was retained on October 13, 2009, and he needed time to review the file and conduct discovery, and prepare for mediation, settlement conference and trial. In her supporting declaration, plaintiff stated she had not had a reasonable opportunity to conduct discovery and prepare for trial, and she stated that although she had “vigorously attempted to retain legal representation, ” she was not able to do so because she was told by various attorneys that she needed to pay a retainer “in excess of thousands of dollars which she could not pay.” The trial court denied her request and ruled that the trial date would stand.
On the day of trial, plaintiff’s attorney, Mr. Brown, filed a second ex parte application for an order continuing the trial and reopening discovery. That application was also denied. Brown substituted out of the case at that point and plaintiff began representing herself again. She told the court that she would dismiss the case without prejudice and then she would “appeal or do whatever I have to do.” The court asked plaintiff if she had “the form” and when plaintiff answered she did not the court attendant stated she would print one for plaintiff. The court told plaintiff a form would be printed for her and then she would have to sign it. The reporter’s transcript indicates that other matters were heard by the court and then plaintiff’s case was recalled. One of the two defense attorneys who were present when the case was initially called was still in the courtroom when the case was recalled. Plaintiff was not there. The court stated that it was informed that after plaintiff was told she would be given a form to sign to dismiss the case plaintiff left and “she was seen going down the elevator to the first floor.” The court indicated it would dismiss the case on its own motion. Defense counsel asked that it be dismissed with prejudice and the court granted that request.
On December 14, 2009, attorney Leonard Chaintin substituted into the case on plaintiff’s behalf and filed a motion to vacate the dismissal. At the oral argument on the motion, he asserted that the attorney who represented plaintiff on the day of trial gave her erroneous advice when he told her that if she dismissed her case without prejudice she could refile it again, and this constituted extrinsic fraud because of the statute of limitations. He also argued that plaintiff was not aware on the day of trial that she had to come back, apparently meaning that she had to come back to sign the form requesting a dismissal. He stated she should be given her day in court and could be ready for trial in “a month or two.” The court replied that even if plaintiff had not asked for the case to be dismissed without prejudice on the day of trial the court would have dismissed it with prejudice because plaintiff was not ready to proceed with trial. The court also observed that when plaintiff first lost her attorney she could have dismissed the case without prejudice and attempted to find a replacement attorney and that way the defendants would not have been put to the time and expense of defending the case unless and until it was refiled. The court stated plaintiff chose to keep the case going, she was not cooperative, and the defendants were required to defend the case. Plaintiff’s motion to vacate the dismissal was denied and a judgment of dismissal with prejudice was signed and filed.
Thereafter, plaintiff filed this timely appeal. She contends the trial court abused its discretion when it denied her October 15, 2009 ex parte application for a continuance of the October 26 trial date.
DISCUSSION
1. Standard of Review
Generally, continuances are not a right as a matter of law and thus trial courts have discretion to determine whether to grant them. (Mahoney v. Southland Mental Health Associates Medical Group (1990) 223 Cal.App.3d 167, 170.) Persons challenging the exercise of that discretion bear the burden of showing a clear case of abuse of discretion and a miscarriage of justice. They must show the court “exceed[ed] the bounds of reason, all of the circumstances before it being considered.” (Ibid.) In applying this standard of review to the instant case we observe that a litigant’s “mere self-representation is not a ground for exceptionally lenient treatment” when it comes to application of the rules of civil procedure unless a particular rule provides otherwise. (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 984-985.) In the instant case, there is no rule providing plaintiff with exceptionally lenient treatment with respect to her desire to delay the commencement of trial.
2. Application of the Standard of Review
Defendants are correct when they argue that continuances are disfavored. Under Government Code section 68607, which is part of the Trial Court Delay Reduction Act, judges are charged with the responsibility to “eliminate delay in the progress and ultimate resolution of litigation, ” “assume and maintain control over the pace of litigation, ” “[c]ommence trials on the date scheduled, ” and “[a]dopt and utilize a firm, consistent policy against continuances, to the maximum extent possible and reasonable, in all stages of litigation.”
California Rules of Court, rule 3.1332 (a) & (c) reiterates that policy regarding continuances. It states that the date assigned for a trial is firm and a continuance may be granted “only on an affirmative showing of good cause requiring the continuance.” Rule 3.1332 (c) sets out “[c]ircumstances that may indicate good cause.” Plaintiff relies on two of those circumstances. The first is “[t]he unavailability of an essential lay or expert witness because of death, illness, or other excusable circumstances, ” However, although plaintiff told the court when she requested a continuance that her medical expert witness would not be available for trial on October 26, defendants agreed at oral argument on her request for a continuance that the witness could be taken out of order to accommodate his trial availability. Thus, witness unavailability was not sufficient cause to continue the trial.
Rule 3.1332 (c) also provides that good cause for a continuance may exist because of “[t]he substitution of trial counsel, but only where there is an affirmative showing that the substitution is required in the interests of justice.” Plaintiff asserts that her then-very recent substitution of counsel constituted good cause for continuing the trial because prior to that she had been representing herself and her declaration filed in support of the continuance shows she tried to obtain counsel but was not able to do so because the “various counsel” who showed interest in her case required her to pay “retainers in advance in excess of thousands of dollars which [she] could not pay.” Plaintiff argues that her new attorney demonstrated that he needed a 120-day continuance so that he could review the file in the case and conduct discovery, and the interests of justice require that he engage in such activity because plaintiff had not been able to conduct discovery since she had no attorney and she “could not possibly proceed without counsel.” She also asserts that because defendants’ motion for summary judgment was denied it shows she has a prima facie case for recovery against defendants, and the requested continuance would not have unduly prolonged the case. Additionally, plaintiff cites to rule 3.1332 (d) and argues that there were no previous continuances, defendants would not have been prejudiced by a continuance, and there was no evidence a continuance would have had an adverse affect on the trial court’s calendar.
We agree with defendants that the trial court’s denial of a continuance 11 days before the scheduled trial does not constitute a clear case of abuse of discretion. To begin with, if it is true that plaintiff was not prepared for trial, that was something she knew long before attorney Brown became her attorney. She was representing herself for 10 months before Brown substituted in and she could have requested the continuance at an earlier point in time. The case history shows that the October 26, 2009 trial date was set on January 27, 2009. That was six weeks after plaintiff began representing herself. Rule 3.1332 (b) states that a request for a continuance must be made “as soon as reasonably practical once the necessity for the continuance is discovered.” By the time Peter Brown was substituted in as plaintiff’s attorney on October 13, 2009, which thereby terminated plaintiff’s inpropria persona status that had existed since December 10, 2008, defendants had been made to defend this case for 53 weeks, including filing their answer, asserting their summary judgment motion, and conducting discovery.
Further, plaintiff’s declaration submitted to support her request for a continuance was a bare conclusionary representation that she had not had “a reasonable opportunity to conduct discovery and prepare for trial.” Assuming arguendo that a request for a continuance of trial made 11 days before the trial date by a litigant representing herself could be cause for a continuance based on the litigant recently obtaining counsel, plaintiff’s declaratory presentation to the trial court to secure a continuance was only three sentences long and did not constitute proof of due diligence to obtain a new attorney or prepare herself for trial. She presented very little information about her attempts to secure an attorney during the ten months that had lapsed between when her first attorney substituted out and Brown came into the case. She did not explain why her original attorney substituted out of the case in December 2008, six months after the case was filed. She did not explain what trial preparation her original attorney had (or had not) accomplished prior to his leaving. She did not explain why attorneys she contacted required large retainers but she was able to retain Brown. Rule 3.1332(b) states that the party requesting a continuance of trial must have “supporting declarations” for that request.
Moreover, the record shows plaintiff hired an attorney to represent her for one day only at a July 30, 2009 mandatory settlement conference (the court did not permit the attorney to engage in settlement discussions); she obtained a medical doctor to submit a declaration on her behalf in opposition to defendants’ motion for summary judgment, and presumably the doctor obtained and reviewed medical records in order to be able to present the declaration; and at an April 15, 2009 hearing when the trial court encouraged her to find an attorney she stated that she was “hiring other people to do the paperwork until I can get an attorney.” Presumably plaintiff had sufficient finances to hire these “other people to do the paperwork, ” as well as pay for the attorney who attempted to represent her at the MSC, and pay the medical expert who submitted the declaration on her behalf, yet Brown was not substituted in until October 13, 2009.
In County of San Bernardino v. Doria Mining & Engineering Corp. (1977) 72 Cal.App.3d 776 (Doria Mining), the court examined Standards of Judicial Administration adopted by the Judicial Council. According to the Doria Mining court’s opinion, one of those Standards was adopted in 1971 and provided that superior courts should adopt a firm policy regarding continuances and should emphasize that the date assigned for trial “ ‘must be regarded by counsel as [a] definite court appointment[].... A continuance should be granted only upon an affirmative showing of good cause.... ’ ” One of the grounds for a continuance under that Standard was the substitution of an attorney but “only where there is an affirmative showing that the substitution is required in the interests of justice.” The Doria Mining court declined to find that a denial of a one or two week continuance for the defendant that was requested on the day of trial was an abuse of discretion because it was not promptly made since the stated need for a continuance was known for over a week and there was no affirmative showing of good cause. (Id. at p. 783.) The court stated California has no policy “of indulgence or liberality in favor of parties seeking continuances.” (Id. at p. 781.) In this case, such a policy would have to exist in order for this court to find that there was an abuse of discretion when the trial court did not grant plaintiff’s request for a continuance of the case, unfortunately for plaintiff, but there is no such policy.
Lastly, we observe that the trial court also considered plaintiff’s litigation behavior during the time the case was pending and it stated that plaintiff was in a bad position largely because of her own conduct, and the court would not “bail her out and give her a continuance.” The court also stated that defendants have rights, including a right to rely on the rules of discovery in preparing for trial and the right to a speedy trial and defendants had proceeded in the manner required of litigants in preparing their defense of this case for trial. Additionally, the court noted that although Mr. Brown asked at oral argument if plaintiff could have even just a 30-day continuance, the court’s own calendar precluded that.
DISPOSITION
The judgment of dismissal is affirmed. Costs on appeal to defendants.
We Concur: KITCHING, J., ALDRICH, J.