Opinion
C054046
8-29-2008
EDWARD R. STOLZ, II, et al., Plaintiffs, Cross-defendants and Appellants, v. DUDUGJIAN & MAXEY, INC. et al., Defendants, Cross-complainants and Respondents.
Not to be Published
Edward R. Stolz, II and Royce International Broadcasting Corporation (sometimes collectively, Stolz), sued Robert Dudugjian, John Maxey and Dudugjian & Maxey (collectively, Dudugjian), alleging legal malpractice. In response to a motion for terminating sanctions, Stolz moved to continue trial. Commissioner Margaret Wells, sitting as a temporary judge, denied the motion and deferred terminating sanctions to give Stolz one more chance to appear at his deposition. After Stolz failed to appear, Judge Charles Wachob granted a renewed motion for terminating sanctions. Judge Wachob later entered a monetary judgment on a cross-complaint for fees, and Stolz timely filed a notice of appeal.
Stolz asserts the denial of his motion to continue was an abuse of discretion. The issue is reviewable on appeal from the judgment. (See Mann v. Pacific Greyhound Lines (1949) 92 Cal.App.2d 439, 445; Cooper v. Deon (1943) 58 Cal.App.2d 789.) We shall affirm the judgment.
BACKGROUND
Terminating sanctions were based on Stolzs repeated discovery violations. But the only claim Stolz presses contests the denial of his continuance motion. Therefore, we need not recite the entire history of this case: We will instead begin in the middle.
On March 21, 2006 (all further dates are to 2006), the parties stipulated to continue the trial date from March 27 to May 15, due to Stolzs mothers illness.
On April 3, Dudugjian moved for sanctions, including terminating sanctions, and to compel Stolz to appear at his deposition. Stolzs counsel had declined to commit to any continued dates because Stolzs mother had died.
On April 12, Stolz opposed the motion, and also filed a motion to continue the trial date. The motion to continue was supported by a declaration of Dr. David Lehman, a licensed physician, stating he had been Stolzs mothers doctor, that she had died on March 24, and, in critical part:
"I am now treating Mr. Edward Stolz for severe depression and anxiety from the sudden and unexpected death of his mother and he is under my continuing care and observation. Mr. Stolz also lost his father within the past two years and the sudden loss of his mother has now left him severely depressed, anguished and in a debilitated state. I have placed Mr. Stolz under my care and on medications and have referred him to counseling. . . . It is my strong medical opinion that due to his physical and emotional condition as a result of the loss of his mother and the depression and anxiety that has caused, that he should not engage in any litigation activities whatsoever for at least the next six months."
Dudugjian agreed a short continuance was proper.
At a hearing on May 8, Commissioner Wells, sitting by stipulation as a temporary judge, ordered Stolz to complete his deposition by July 31. The formal order, submitted in June but not signed by the court until July 21, states in part:
"[Dudugjians] motion for terminating, evidentiary and/or issue sanctions or in the alternative, to compel Plaintiffs deposition and for monetary sanctions is granted in part. Plaintiff Edward Stolz shall appear for his deposition at a date, time and place convenient to the parties, but not later than July 31, 2006. The motion is denied without prejudice as to the request for terminating, evidentiary and/or issue sanctions."
On July 10, Dudugjian filed another motion for sanctions, based on Stolzs failure, since the May 8 hearing, to coöperate in setting a deposition date. At that point the trial was set for August 28.
Stolz moved for another continuance, and his motion was supported by declarations of two doctors and his lawyer.
First, in a declaration dated July 17, Dr. Lehman opined that due to Stolzs "severe, debilitating, pathologic grief reaction[,]" "and the depression and anxiety that has caused and the medications he is taking that he cannot and should not engage in any depositions, trials, or litigation activities whatsoever until no earlier than January 2007." Dr. Lehman had not actually examined Stolz since April 3, but had "ongoing telephone contact with him."
Second, Dr. I. Anneli Hanna, a licensed psychiatrist, filed a declaration and supplemental declaration, together stating that Stolz was examined on May 3 and July 17. The declarations state Stolz "is on antidepressant medications[,]" but do not state that Dr. Hanna had prescribed them. Due to the loss of his father and mother within two years, Stolz is "severely depressed, anguished and in a debilitated state." This language is identical to Dr. Lehmans original declaration. "Legal proceedings that involve reminders of the loss of his parents would likely cause significant worsening of his mental condition. Additionally, Mr. Stolz is not emotionally or psychologically able to function in a manner that would allow him to be lucid and attentive and go through the rigors of a deposition or a trial. My professional recommendation and request is that Mr. Stolz not [undergo] any deposition, trial, or other litigation activity until January 2007." One declaration states Dr. Hanna had prepared an earlier declaration in May, but it is not in the record.
Third, Stolzs counsel declared that from his "limited conversations" with Stolz, Stolz "is depressed and unable to carry on a conversation with me about this case."
Dudugjian opposed a continuance, in part incorporating from his sanctions motion excerpts of Stolzs malpractice experts deposition, showing that Stolz met with his expert, Boyd Lemon, in late April or early May and had a "substantive discussion" about the case for about two hours.
At an unreported hearing on August 8, Commissioner Wells denied the motion for a continuance and "granted in part" the motion for sanctions as follows:
"Plaintiff shall complete his deposition by Aug. 15, 2006. If Plaintiff fails to complete his deposition by Aug. 15, 2006, Defendants may seek terminating or other sanctions by oral motion at the Civil Trial Conference on Aug. 18, 2006. Defendants request is otherwise denied."
Although none of the later events are strictly relevant to the appeal, for completeness we continue the narrative.
Rather than make an oral motion at the trial conference, Dudugjian filed a new written motion for terminating sanctions, supported by a declaration and other documents showing that after the August 8 order, Stolzs counsel agreed to a deposition date of August 11, but on August 10 notified Dudugjian that Stolz would not appear, and Stolz did not appear.
The minute order of an unreported hearing on August 18 show that Stolzs counsel stated Stolz would not appear at his deposition, that the motion for terminating sanctions was granted, and that the trial date of August 28 was confirmed. Although a mandatory settlement conference was to be held that day, Stolz and counsel failed to appear.
On August 29, a formal order was signed by Judge Wachob, dismissing Stolzs complaint with prejudice.
On August 31, Judge Wachob signed and caused to be filed a "Judgment on Cross Complaint" awarding monetary damages to Dudugjian after a court trial that day.
Although the complaint had already been dismissed with prejudice, on October 26, the court filed a judgment on the complaint, stating Stolz took nothing and awarding costs to Dudugjian. This means there are two purported judgments in the file, one captioned "JUDGMENT BY THE COURT ON PLAINTIFFS COMPLAINT FOR DAMAGES" and one captioned "JUDGMENT ON CROSS-COMPLAINT AFTER TRIAL BY COURT." (Cf. Code Civ. Proc., § 577; Paterno v. State of California (1999) 74 Cal.App.4th 68, 110.) But no issue about this is raised, and Stolzs notice of appeal was timely in any event.
DISCUSSION
"[I]t is settled that: `A judgment or order of the lower court is presumed correct. All intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown. This is not only a general principle of appellate practice but an ingredient of the constitutional doctrine of reversible error." (Denham v. Superior Court (1970) 2 Cal.3d 557, 564, original italics; see Winograd v. American Broadcasting Co. (1998) 68 Cal.App.4th 624, 631.)
Because there was no reporter at the hearing at which the continuance was denied and the order states no reasons, Stolz cannot show why the motion was denied.
Whether a continuance is warranted falls within the discretion of the trial court, and "There is no policy in this state of indulgence or liberality in favor of parties seeking continuances. Rather, the granting of continuances is not favored and the party seeking a continuance must make a proper showing of good cause." (Foster v. Civil Service Com. (1983) 142 Cal.App.3d 444, 448; see Lewis v. Neptune Society Corp. (1987) 195 Cal.App.3d 427, 429 (Lewis).) However, discretion is delimited by the applicable legal standards. (City of Sacramento v. Drew (1989) 207 Cal.App.3d 1287, 1297-1298; Oliveros v. County of Los Angeles (2004) 120 Cal.App.4th 1389, [trial court must act with "`"due regard to all interests"" in ruling on continuance]; In re Marriage of Teegarden (1986) 181 Cal.App.3d 401, 406.)
In arguing that the trial court misapplied appropriate legal standards, Stolz cites former rules that have been consolidated into a new rule of court. California Rules of Court, rule 3.1332(c) now provides in relevant part:
"Although continuances of trials are disfavored, each request for a continuance must be considered on its own merits. The court may grant a continuance only on an affirmative showing of good cause requiring the continuance. Circumstances that may indicate good cause include: [¶] . . . [¶]
"(2) The unavailability of a party because of death, illness, or other excusable circumstances[.]"
However, a trial court also considers whether there have been prior continuances, "delay of trial" caused by a party, the proposed length of the current requested continuance and other factors. (Cal. Rules of Court, rule 3.1332(d).)
"Illness, even of a party, does not mandate a continuance where the trial court concludes the party is able to attend the trial." (Lewis, supra, 195 Cal.App.3d at p. 430.)
"While, in a proper case a continuance should be granted because of the illness of a party or of a member of his family, nevertheless, in considering all such applications the court should be governed by the course which seems most likely to accomplish substantial justice. And in seeking such a course, the court may take into consideration the legal sufficiency of the showing in support of the motion and the good faith of the moving party. Illness of a party does not ipso facto require the granting of the motion, and it is for the trial court in all cases, except where otherwise expressly provided by statute, to determine whether or not the circumstances shown are such as to make it proper that a continuance be granted, and its conclusion thereon will not be disturbed unless there has been a plain abuse of discretion." (Kalmus v. Kalmus (1951) 103 Cal.App.2d 405, 413-414.)
Stolzs briefs assume the trial court was required to credit the medical declarations. This is not so.
Declarations are subject to the same rules of weighing evidence as testimony. (See Doak v. Bruson (1907) 152 Cal. 17, 19; California Correctional Supervisors Organization, Inc. v. Department of Corrections (2002) 96 Cal.App.4th 824, 832.) One rule about weighing testimony is: "Provided the trier of the facts does not act arbitrarily, he may reject in toto the testimony of a witness, even though the witness is uncontradicted." (Hicks v. Reis (1943) 21 Cal.2d 654, 659-660.)
The trial court did not have to credit the declarations, even if uncontested because it would not be arbitrary to reject vague allegations of such unusually severe grief supplied by doctors who had had little contact with their patient. The trial court could rationally reject the declarations.
Further, contrary to Stolzs view, the declarations were contested: There was evidence that Stolz met with his legal malpractice expert and discussed his legal affairs for about two hours in late April or early May, when Stolz was supposedly unable to attend to such matters.
Finally, given Stolzs pattern of discovery abuse as found by the trial court and not challenged on appeal, the trial court could rationally conclude that Stolz was turning the tragedy of his mothers death into a litigation tool, to further delay the case. Stolz claims this circumstance should not be considered because terminating sanctions were not issued at the time the continuance was denied. However, when she denied the continuance Commissioner Wells "granted in part" the motion for sanctions, meaning she found discovery abuse had occurred, but deferred the consequences to Stolz for such abuse by giving him another chance to complete his deposition. She was entitled to consider his discovery abuse in determining the issue of good cause for a continuance.
Based on all of the circumstances, there was no abuse of discretion in denying the motion to continue.
DISPOSITION
The judgment is affirmed. Edward R. Stolz, II, and Royce International Broadcasting Corporation shall pay all costs of this appeal. (Cal. Rules of Court, rule 8.278(a)(1) & (2).)
We concur:
DAVIS, Acting P.J.
CANTIL-SAKAUYE, J.