Opinion
APPEAL from the Superior Court of San Bernardino County No. MCV05691, Bryan Foster, Judge.
Michael S. Edwards, in pro. per.; and Scott N. Harlow for Plaintiff and Appellant.
Patty H. Haigh and Michael R. Haigh, in pro. per., for Defendants and Respondents.
OPINION
HOLLENHORST, Acting P. J.
I. INTRODUCTION
In November 2003, Michael S. Edwards (plaintiff) filed suit against Patty and Michael Haigh (defendants), seeking $50,000 in damages for the tortious conversion of personal property. On March 21, 2006, after plaintiff delivered his opening statement in pro. per., the trial court granted defendants’ motion for judgment of nonsuit pursuant to Code of Civil Procedure section 581c, subdivision (a) and ordered plaintiff to pay defendants’ court costs in the amount of $644.60.
All further statutory references will be to the Code of Civil Procedure unless otherwise noted.
Plaintiff raises three contentions on appeal: (1) the trial court committed reversible error by considering a substitution of counsel form as a motion to be relieved as counsel without complying with the mandatory requirements of California Rules of Court, rule 3.1362 ; (2) the trial court abused its discretion in failing to protect plaintiff from the unethical and improper abandonment of his counsel; and (3) the trial court committed reversible error by denying plaintiff’s request for a continuance when the denial had the practical effect of denying plaintiff a fair trial.
Former California Rules of Court, rule 376. Effective January 1, 2007, the California Rules of Court were renumbered. In this opinion, for consistency and convenience, we will refer to the rules by their current numbers.
II. DISCUSSION
To begin, plaintiff did not supply this court with either the reporter’s transcript or a bill of exceptions. “It is well settled . . . that a party challenging a judgment has the burden of showing reversible error by an adequate record.” (Ballard v. Uribe (1986) 41 Cal.3d 564, 574-575; Aguilar v. Avis Rent A Car Sys., Inc. (1999) 21 Cal.4th 121, 132.) Without the reporter’s transcript, we must presume the validity of every trial court decision, and we must presume every fact existed to make the trial court’s decision valid. (See Hammel v. Lindner (1964) 224 Cal.App.2d 426, 434; Engasser v. Engasser (1946) 75 Cal.App.2d 80, 82; Cal. Rules of Court, rule 8.163.)
A. The Trial Court Did Not Err in Substituting Plaintiff’s Counsel
Plaintiff claims that the trial court erred in allowing his attorney to withdraw from the case, in violation of section 284 and California Rules of Court, rule 3.1362. Plaintiff claims he never consented to a substitution of counsel under section 284, and that the correct paperwork was never filed for a California Rules of Court, rule 3.1362 motion to be relieved as counsel.
Section 284 allows for a change or substitution of attorney “[u]pon the consent of both client and attorney, filed with the clerk, or entered upon the minutes.” If both parties do not consent to a substitution of attorney, section 284 still allows for a substitution “[u]pon the order of the court, upon the application of either client or attorney, after notice from one to the other.” California Rules of Court, rule 3.1362 sets forth procedures for relieving counsel without the mutual consent of both parties.
The clerk’s transcript shows that a “Substitution of Attorney” form signed by plaintiff and his attorney was filed with the San Bernardino Superior Court Clerk on January 5, 2006. We may presume that the reporter’s transcript reflects that both parties consented on the record. (See Hammel v. Lindner, supra, 224 Cal.App.2d at p. 434; Engasser v. Engasser, supra, 75 Cal.App.2d at p. 82; rule 8.163.) Therefore, the trial court properly substituted plaintiff’s attorney under section 284. Since the trial court properly substituted plaintiff’s attorney under section 284 based on consent of both parties, California Rules of Court, rule 3.1362 did not apply.
B. The Trial Court Did Not Fail to Protect Plaintiff from the Consequences of His Attorney’s Withdrawal from the Case
Plaintiff claims the Rules of Professional Conduct, rule 3-700(A)(2), prohibited the trial court from allowing plaintiff’s attorney to withdraw from the case. He insists that the trial court did not “consider the attorney’s unethical conduct” in allowing the attorney to withdraw from the case.
Rules of Professional Conduct, rule 3-700 (A)(2), states: “A member shall not withdraw from employment until the member has taken reasonable steps to avoid reasonably foreseeable prejudice to the rights of the client, including giving due notice to the client, allowing time for employment of other counsel, complying with rule 3-700(D), and complying with applicable laws and rules.”
Canon 3(D)(2) of the California Code of Judicial Ethics states, “Whenever a judge has personal knowledge that a lawyer has violated any provision of the Rules of Professional Conduct, the judge shall take appropriate corrective action.” The Advisory Committee commentary regarding canon 3(D)(2) states that “Appropriate corrective action” includes communicating with the lawyer who has committed the violation, other available direct action, or a report of the violation to the appropriate authority. (Cal. Code Jud. Ethics, canon 3(D)(2).)
If the trial court had personal knowledge that plaintiff’s attorney violated the Rules of Professional Conduct, the trial court had an obligation to report the attorney’s actions or apply some sort of direct reprimand to the attorney. However, section 284 governs substitutions of attorneys. We have already determined that the trial court acted properly in allowing the substitution of attorney. If a violation of the Rules of Professional Conduct occurred, reversal of the trial court’s decision to substitute counsel would not be the proper remedy. (Cal. Code Jud. Ethics, canon 3(D)(2); BGJ Associates v. Wilson (2003) 113 Cal.App.4th 1217, 1227 [violating the Rules of Professional Conduct subjects an attorney to disciplinary proceedings].)
Without deciding whether plaintiff’s attorney may have violated the Rules of Professional Conduct, we conclude the trial court did not act improperly in allowing for the substitution of counsel.
C. The Trial Court Did Not Err in Denying Plaintiff’s Continuance
Plaintiff claims the trial court incorrectly interpreted California Rules of Court, rule 3.1332(b) by not considering his ex parte application for a continuance of trial. Plaintiff asserts that he properly applied for a continuance, but the trial court refused to consider the application because it was not done by noticed motion. The clerk’s transcript shows only that the application was denied by the trial court. Absent the reporter’s transcript, we presume that the trial court correctly interpreted all relevant statutes and took due consideration in evaluating plaintiff’s application. (See Hammel v. Lindner, supra, 224 Cal.App.2d at p. 434; Engasser v. Engasser, supra, 75 Cal.App.2d at p. 82; Cal. Rules of Court, rule 8.163.)
California Rules of Court, rule 3.1332(b), provides, “A party seeking a continuance . . . must make the request for a continuance by a noticed motion or an ex parte application under the rules in chapter 4 of this division, with supporting declarations. The party must make the motion or application as soon as reasonably practical once the necessity for the continuance is discovered.”
“The matter of granting or refusing a continuance is a matter addressed to the discretion of the trial court and is not to be interfered with except upon a showing of abuse of discretion.” (Palomar Mortg. Co. v. Lister (1963) 212 Cal.App.2d 236, 238.) Without the reporter’s transcript, plaintiff cannot show that the trial court abused its discretion in denying the ex parte application for a continuance.
III. DISPOSITION
The judgment is affirmed.
We concur: MCKINSTER, J. KING, J.