Opinion
B308924
09-22-2022
CA HOME BUYERS 247, LLC, Plaintiff and Respondent, v. HOWARD EDWARD TERRELL, JR., Defendant and Appellant.
Abbasi Law Corporation and Matthew Abbasi, for Plaintiff and Respondent. Law Offices of Charles O. Agege and Charles O. Agege, for Defendant and Appellant.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. 19STCV18098 Dennis J. Landin, Judge. Reversed.
Abbasi Law Corporation and Matthew Abbasi, for Plaintiff and Respondent.
Law Offices of Charles O. Agege and Charles O. Agege, for Defendant and Appellant.
WISE, J. [*]
INTRODUCTION
On May 24, 2019, CA Home Buyers 247, LLC (CHB) sued Howard Edward Terrell, Jr. alleging various causes of action related to a residential real estate investment that went awry. The trial court set a bench trial for February 24, 2020. On February 7, 2020, the same day as the final status conference at which Terrell was not present, John R. Setlich, Terrell's attorney, filed a motion to be relieved as counsel. The court granted the motion on February 14, 2020, when neither Terrell nor Setlich appeared. On February 24, 2020, Terrell appeared for trial and informed the court he had not been notified that Setlich had been relieved as his counsel. The court denied Terrell's request for a one-month trial continuance so that he could retain new counsel. Following the two-day trial, during which Terrell represented himself, the court entered a judgment against Terrell for $532,517 plus injunctive relief.
On appeal Terrell asserts, among other arguments, that the trial court abused its discretion by granting Setlich's motion to be relieved as counsel and then denying Terrell's motion for a trial continuance. We agree the trial court abused its discretion and reverse.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Partnership Agreement and the Parties' Disputes
In 2008 Terrell purchased a home (the property) as his family's primary residence in Corona, California; he paid approximately $800,000. Terrell began experiencing financial difficulties and by late 2017 he was delinquent on his monthly home loan payments and in Chapter 13 bankruptcy. Terrell then posted on Craigslist that he was seeking a $75,000 cash investment in exchange for a $100,000 return upon the sale of the property. CHB's managing member, Edward Lamotte, responded to Terrell's advertisement.
In January of 2018 Terrell and CHB executed a written Partnership Agreement with the stated purpose "to bring current, rehabilitate and sell distressed property." Pursuant to the Agreement, CHB provided Terrell with $250,000 to be used as follows: $137,500 to bring Terrell's delinquent home loan payments and homeowners association (HOA) dues current, $37,500 for home loan and HOA payments for the next six months, and $75,000 to rehabilitate and upgrade the property to maximize its sale value. In exchange, Terrell signed over 50 percent of the equity in the property to CHB, executing a grant deed transferring title to Terrell and Lamotte as tenants in common. Terrell also agreed to obtain dismissal of his Chapter 13 bankruptcy.
Over the next year various contractors and subcontractors performed work on the property. Terrell claims the workers hired by CHB performed work improperly, caused substantial flooding and damage and diminished the property's value. CHB contends Terrell was responsible for delays and cost overruns and caused CHB to pay an additional nine months of home loan payments while Terrell lived rent-free at the property. CHB also claims Terrell failed to properly account for the more than $480,000 CHB contributed to the property.
B. CHB's Complaint and Litigation
On May 24, 2019, CHB filed a complaint against Terrell. CHB asserted numerous causes of action, including breach of contract and fraud, and sought damages and injunctive relief.
On June 10, 2019, Terrell, represented by Setlich, filed for Chapter 7 bankruptcy in the federal bankruptcy court, which triggered an automatic stay of CHB's civil action. CHB filed a motion to dismiss the bankruptcy case, and Terrell filed an opposition. On August 26, 2019, the bankruptcy court granted CHB's motion to dismiss and terminated the automatic stay, finding that Terrell filed for bankruptcy in order "to adjudicate a two party dispute between [CHB] and [Terrell]" and thus "equity and fairness warrant[] the dismissal of the [Terrell's] Chapter 7 Bankruptcy case to allow the two party dispute . . . to be adjudicated in state court."
On September 4, 2019, CHB sought a default judgment against Terrell in the civil action after he failed to file a responsive pleading to CHB's complaint. The trial court issued an Order to Show Cause re: Failure to Enter Default/Default Judgment and heard the matter on October 25, 2020. At the hearing attorney Matthew Abbasi appeared for CHB. No one appeared on Terrell's behalf. Abbasi informed the court "that the default judgment packet had not been submitted yet" and requested a continuance of the hearing, which the court granted. The court reset the hearing to November 22, 2019. On October 30, 2019, Setlich filed a motion to set aside the default judgment, asserting that Terrell's failure to file a responsive pleading "was a result of inadvertent errors on the part of counsel"-specifically, that one of Setlich's now-terminated paralegals neglected to enter the case deadlines into the firm's electronic case management system.
On November 19, 2019, CHB filed its request for a judgment on the previously entered default and filed a declaration from Abbasi seeking to recover $9,751 from Terrell for the legal fees and costs CHB had incurred thus far. Approximately two weeks later, on December 3, 2019, Setlich filed Terrell's "[proposed] answer" to the complaint.
Following a hearing on December 9, 2019, the trial court granted Terrell's motion to set aside/vacate the default judgment and imposed $1,000 in sanctions on Setlich's law office for failing to file a timely responsive pleading. The court set the final status conference for February 7, 2020, and the trial date for February 24, 2020.
Four days later, CHB filed an ex parte application and motion for an order directing Terrell to pay CHB monthly rent/mortgage, or in the alternative for an order shortening the time for such motion to be heard, which Terrell opposed. Following a hearing on December 18, 2019, the court continued the matter to January 6, 2020, and permitted supplemental briefing.
On December 19, 2019, Setlich served CHB with a motion to continue the final status conference and trial date. Setlich stated that "[d]efendant will not have discovery completed by the calendared trial date." Setlich asserted he "immediately began preparing this motion" following the December 9 hearing because he "realized the serious time constraints [he] would be facing if the final status conference and trial date were to proceed" and that "discovery will not be completed prior to the calendared dates," which was "necessary for [Terrell] to fully and completely present [his] case."
The trial court's online case docket does not contain an entry for the motion for a continuance. Because the appellate record contains a copy of the motion that is not file-stamped (as an exhibit to CHB's reply to Terrell's opposition to CHB's motion for an order directing Terrell to make monthly payments to CHB), it is not clear when or if Setlich filed the motion. The motion notices a January 27, 2020 hearing date, and the online case summary's list of hearings includes an entry on that date for a "Hearing on Motion to Continue Trial." The appellate record contains no corresponding minute order from that date. As the final status conference and trial date remained the same, we presume the court did not grant the continuance.
On January 6, 2020, the trial court granted CHB's motion for an order requiring Terrell to pay CHB $3,882.91 in monthly rent on the property as of January 1, 2020. The order stated that if Terrell failed to make a payment, CHB could serve a three-day notice to pay rent or quit. If Terrell still did not comply, then he must "immediately vacate" the property. Setlich did not attend the hearing. The minute order states Lawrence P. Adamsky "specially appear[ed] for Sagi Schwartzberg" as Terrell's counsel.
Nothing in the record explains why Setlich did not appear at the hearing, Schwartzberg's connection to the case (apart from his appearance at one previous hearing that was continued), and why Adamsky specially appeared on behalf of Schwartzberg on January 6, 2020.
C. Setlich's Motion To Be Relieved as Counsel
On February 7, 2020, the trial court held the final status conference at which Setlich appeared as Terrell's counsel. The minute order states that "Counsel for defendant is to reserve a date for motion to be relieved as counsel tentatively for 2/14/2020." The court moved the trial's start from 9:30 a.m. to 1:30 p.m. on February 24, 2020 and ordered "Counsel for Defendant" to give notice. Setlich filed a motion to be relieved as Terrell's counsel later on February 7, 2020. Setlich indicated on the accompanying Judicial Council form that he served Terrell with the motion by U.S. mail, and that the motion would be heard February 14, 2020. The attached proof of service likewise stated the motion was served on Terrell by U.S. mail on February 7, 2020.
D. The Hearing on Setlich's Motion To Be Relieved as Counsel
On February 14, 2020, seven calendar days (or three court days due to the holiday) after Setlich filed his motion to be relieved as counsel, the court heard the motion. There is no transcript of the hearing in the appellate record. Neither Setlich nor Terrell was present; Abbasi appeared, as did Erika Lipcsey "for" Setlich. The minute order states, "There is no appearance by 'Howard Terrell' nor anyone opposing this motion" and "[a]fter discussion with counsel present . . . Setlich is relieved as counsel of record effective upon filing the Proof of Service of this ruling and the order of the Court." The minute order states "[c]ounsel is to submit a proposed order." The trial, still set for February 24, 2020, was then five court days away. On February 20, 2020, two court days before the date set for trial, Setlich filed a notice of ruling and proposed order.
On Monday, February 24, 2020, the court called the matter for a bench trial, which was estimated to last two days. Again, there is no transcript of that proceeding in the appellate record. According to the minute order, Terrell appeared without counsel and "inform[ed] the Court that he was never notified John R. Setlich, Esq. had been relieved as his counsel of record." The court confirmed there was no proof of service on file, issued an "Order to Show Cause Re: Sanctions for defense counsel's failure to appear at today's Non-Jury Trial" and continued the trial to Friday, February 28, 2020. Also on February 24, Terrell, in pro. per., filed a complaint (dated February 20, 2020) against Lamotte in a new, separate action for breach of contract and negligent misrepresentation.
It is unclear when Terrell received actual notice of Setlich's motion to be relieved as counsel and the court's order granting the motion. In his motion for a new trial, Terrell intimates he learned of both the motion and the order sometime between the February 14 hearing and the February 24 trial date, stating he "was surprised to find out about his attorney filing a motion to be released from the case, after the hearing had already concluded. Therefore, on February 24, 2020 the defendant filed his own Complaint . . . to support his case until the defendant was able to retain new council [sic]."
The appellate record only includes copies of the caption pages of Terrell's original complaint and his first amended complaint in his related case against Lamotte, attached as exhibits to Terrell's motion for a new trial. The first amended complaint purports to add CHB as a defendant as well as additional causes of action and indicates it was prepared for Terrell by new attorneys. It is not file-stamped, however, but states in the margin that it was electronically received by the court on August 3, 2020.
On February 26, 2020, the court issued a signed order granting Setlich's motion to be relieved as counsel, and found that the attorney "personally served the client with papers in support of this motion," although there appears to be nothing in the record to support that Terrell was personally served and the only proof of service subsequently filed by Setlich stated Terrell was served by U.S. mail. The order relieved Setlich as counsel "effective upon the filing of the proof of service of this signed order upon the client." In the margins it states the order was electronically received by the court on February 25, 2020.
On February 27, 2020, at 4:02 p.m., Setlich electronically filed the requisite proof of service, stating that Terrell was served that same day by regular U.S. mail with the court's signed order granting Setlich's motion to be relieved as counsel.
E. The First Day of Trial and Terrell's Request for a Continuance
The next morning, Friday, February 28, 2020, at 9:30 a.m., the court called the case. Terrell appeared without counsel and Abbasi appeared on behalf of CHB. The following colloquy occurred:
"The Court: The matter is set for court trial. I do see prior counsel did file the proof of service of the order relieving him from representing Mr. Terrell. [¶] Mr. Terrell, do you have a lawyer now?
According to the February 28, 2020 minute order, the court "discharged" the order to show cause from February 24 regarding Setlich's failure to appear on the first day of trial.
Terrell: I don't have a lawyer now, but I still would like time to get a lawyer.
The Court: How much time are you requesting?
Terrell: I'd say like 28 days if that's okay.
The Court: Have you contacted any lawyers?
Terrell: I have been calling around
The Court: Go ahead.
Terrell: And I haven't found anyone that was willing to take the case yet, but I have a few more calls to make, and if I can't find a lawyer, then I'll have to represent myself. However, isn't there-I can-I can ask the judgment to be reversed for my other attorney leaving; right? It says that I have time to request that order be reversed because I wasn't given notice for the motion that he wanted to leave.
The Court: All right. How long ago was that order issued, counsel?
Abbasi: Your honor, it was on the 14th of February. It was actually continued once before. It was set for two weeks before that. Additional notices were provided, and that's why it was set for the 14th.
Nothing in the record supports Abbasi's representation to the trial court that the hearing on Setlich's motion to be relieved as counsel had been previously "continued once before" from two weeks prior to February 14 or that "additional notices" were given to that affect. CHB's respondent's brief states Setlich filed his motion on February 7 and it was heard and granted on February 14, effective upon proof of service of the order on Terrell.
Terrell: He filed it on the 7th from what I understand, but I should have received notice, before the 7th of the hearing.
The Court: What is your position?
Abbasi: Well, your honor, we're here, your honor. We've continued this from earlier this week. I mean, how many continuances can we really have at this point, your honor? This is just another stalling tactic, sir. He's not paying rent. I mean, it's still-I mean, there's an outstanding order from your honor as of January 1st for him to pay rent. He still hasn't, and he no longer has any attorney. Now he wants more time to seek another attorney, but he doesn't want to pay rent either. So this is just another tactic in a long line of tactics that's been employed in this case.
As your honor will remember from the history of this case, I mean, we filed this lawsuit and instead of responding to it he went and filed a bankruptcy case. We had to go through all that, get it dismissed, come back, still didn't answer, had to file a default. Your honor set aside the default with counsel. We selected all these dates. He waited around until the last minute. Then it comes time to do depositions and trial, oh, well, you know, counsel is no longer able to represent the client. And here we are, your honor, weeks and months later.
The Court: How much is now due on the mortgage?
Abbasi: That's a great question your honor. That's actually a question that Mr. Terrell can better answer for you. I believe the mortgage is at least 10, 11 months late right now.
The Court: So approximately how much would it take to bring it current?
Abbasi: I would think at least upwards of-I mean, each mortgage payment is about $4,000. So you're talking about 38 to 40 alone. I'm sure there's foreclosure fees and costs that go along with it as well; so we're probably in the 50 range, is [sic] I would guess, your honor.
The Court: Let me ask Mr. Terrell. Are you able to pay that amount now?
Mr. Terrell: No, I'm not, your honor. But can I say something?
The Court: I do have a few questions for you.
Mr. Terrell: Okay.
The Court: How much of that can you pay?
Mr. Terrell: Practically none of it.
The Court: So how do you expect to hire a lawyer if you can't even pay the mortgage?
Mr. Terrell: Well, I'm trying to call in some favors from friends. But your honor, the plaintiff, they're trying to rush because I filed a claim against them, and they're trying to get this case rushed through so that they don't have to address my claim against the plaintiff.
The Court: The motion to continue-and I'll construe his request as a motion to continue-is denied. [¶] So do you wish to make any opening statement? I've read your trial brief.
Mr. Abbasi: Well, your honor, I believe our trial brief states what our facts or predicates are. In a few moments we will have a real estate broker here that can provide your honor with testimony with respect to the value of the property. My client is also here as well. We can provide testimony, and we have documents. We can put exhibits before the court. But we would like at least an opportunity to be able to address a prove-up if Mr. Terrell doesn't want to proceed and defend himself. If he wishes to defend himself as well, we'll be more than happy to go through however he likes to do it, your honor.
The Court: I'm assuming he wishes to defend himself if he remains silent. So you may call your first witness."
CHB then called Terrell as its first witness. CHB called two additional witnesses that day, Scott Oswalt, a local realtor who testified as to the property's value, and Lamotte.
Trial resumed the next court day, Monday March 2, 2020. After hearing closing statements, the court issued a tentative ruling, finding in favor of CHB on all but one cause of action for fraud and intentional misrepresentation. The court ordered Terrell to provide CHB with an accounting by March 20, 2020, and sua sponte continued the trial to March 27, 2020, and then to July 10, 2020. On July 10, 2020, the court again directed Terrell to file his accounting and ordered CHB to submit a proposed judgment. On July 17, 2020, Terrell submitted his accounting.
F. The Judgment in CHB's Favor and Post-trial Filings
On September 18, 2020, the court entered the judgment awarding CHB $532,517. The judgment directed Terrell to vacate the property, remove all his personal property and provide the keys to CHB by August 31, 2020. The judgment permitted CHB to sell the property and distribute the proceeds in accordance with the Partnership Agreement.
On October 14, 2020, Terrell, still representing himself, filed a motion for a new trial in part on the grounds that he "was surprised that the trial started the day his only attorney was confirmed to be released." Terrell also asserted he "paid his attorney to file his Cross Complaint but, his attorney was not much assistance and left the case with [Terrell's] funds prior to filing his Cross Complaint"; he "was surprised the Judge released defendant's council [sic] from the case and did not allow any time for [Terrell] to replace council [sic] and started trial the same day"; and he "was surprised when moved by the court into trial without any discovery etc. files . . ., no notice or time to call witnesses, prepare a defense, or for a new council [sic] to review the case to protect [Terrell's] interest. In his supporting affidavit Terrell stated, "More importantly, I show up at court to see if the judge will allow my attorney to leave with my money and before he files my cross complaint and the Judge starts the trial the same day and won't allow me, not even 1 day to get new council [sic] to protect my interest."
Shortly thereafter on October 22, 2020, CHB sought a writ of possession from the court for the property. The clerk of court issued the writ the next day.
On November 9, 2020, CHB filed its opposition to Terrell's motion for a new trial. CHB disputed Terrell's account of the events surrounding his oral request for a continuance on the day of trial in order to secure legal representation and claimed- inaccurately-that Terrell "asked for the Trial to proceed! Further, he was afforded every opportunity to seek new counsel. In the end, the Trial proceeded after [Terrell] expressly waived the right to retain new counsel and answered ready for Trial." CHB also noted that Terrell had not yet appealed the judgment entered on September 18 and stated-incorrectly-that "the deadline for filing any appeal has lapsed" and "[t]herefore, the Judgment is now final and irreversible," notwithstanding that the actual 60-day deadline for Terrell to file his notice of appeal was still eight days away.
Following a hearing at which Terrell appeared in pro. per., the court denied Terrell's motion for a new trial. In its minute order the court stated Terrell "asserts that he was surprised he had to start his trial on the designated trial date and apparently takes issue with the denial of his request for a continuance. It is not clear how his testimony would have been different or what other documents [he] would have submitted if the trial had been continued."
On November 16, 2020 Terrell, still self-represented, timely filed his notice of appeal.
With the assistance of his new (and current) counsel, on December 9, 2020, Terrell filed an ex parte application in the trial court seeking a stay of the enforcement of the judgment to prevent CHB from evicting Terrell and selling the property during the pendency of the appeal. On December 11, 2020, following oral argument, the trial court denied the stay.
In October 2021 CHB sought, and received, a writ of possession of the property.
On January 13, 2022, Terrell's counsel filed a petition for writ of supersedeas in this court, requesting an immediate stay of the trial court's order denying the stay of the enforcement of the judgment. This court denied the petition on January 19, 2022.
DISCUSSION
Terrell raises various issues on appeal, but foremost asserts the trial court abused its discretion by granting Setlich's motion to be relieved as counsel without providing him adequate notice and then denying his oral motion for a trial continuance in order to secure new counsel.
A. The Rules and Principles Regarding Trial Continuances
Rule 3.1332 of the California Rules of Court governs motions or applications for a trial continuance. The rule begins with an admonition that "[t]o ensure the prompt disposition of civil cases, the dates assigned for a trial are firm" and "[a]ll parties and their counsel must regard the date set for trial as certain." (Cal. Rules of Court, rule 3.1332(a).) The party seeking a trial date continuance "must make the request for a continuance by a noticed motion or an ex parte application . . . with supporting declarations. The party must make the motion or application as soon as reasonably practical once the necessity for the continuance is discovered." (Id., rule 3.1332(b).)
"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" such as "[t]he unavailability of trial counsel because of death, illness, or other excusable circumstances" or "[t]he substitution of trial counsel, but only where there is an affirmative showing that the substitution is required in the interests of justice." (Cal. Rules of Court, rule 3.1332(c)(3) &(c)(4)).
The trial court "must consider all the facts and circumstances that are relevant to the determination," which may include: "(1) The proximity of the trial date; (2) Whether there was any previous continuance, extension of time, or delay of trial due to any party; (3) The length of the continuance requested; (4) The availability of alternative means to address the problem that gave rise to the motion or application for a continuance; (5) The prejudice that parties or witnesses will suffer as a result of the continuance; (6) If the case is entitled to a preferential trial setting, the reasons for that status and whether the need for a continuance outweighs the need to avoid delay; (7) The court's calendar and the impact of granting a continuance on other pending trials; (8) Whether trial counsel is engaged in another trial; (9) Whether all parties have stipulated to a continuance; (10) Whether the interests of justice are best served by a continuance, by the trial of the matter, or by imposing conditions on the continuance; and (11) Any other fact or circumstance relevant to the fair determination of the motion or application." (Cal. Rules of Court, rule 3.1332(d).)
The decision to grant a motion for a trial continuance falls squarely within "the sound discretion of the trial court." (Oliveros v. County of Los Angeles (2004) 120 Cal.App.4th 1389, 1395 (Oliveros).) "'"The trial judge must exercise his [or her] discretion with due regard to all interests involved, and the refusal of a continuance which has the practical effect of denying the applicant a fair hearing is reversible error."'" (Ibid.)
A request for a continuance implicates two opposing judicial responsibilities: '"On the one hand, [judges] are mandated by the Trial Court Delay Reduction Act (Gov. Code, § 68600 et seq.) to actively assume and maintain control over the pace of litigation"' while "[o]n the other hand, they must abide by the guiding principle of deciding cases on their merits rather than on procedural deficiencies." (Oliveros, supra, 120 Cal.App.4th at p. 1395.) To that end, "[s]uch decisions must be made in an atmosphere of substantial justice. When the two policies collide head-on, the strong public policy favoring disposition on the merits outweighs the competing policy favoring judicial efficiency."' (Ibid.; accord, Mai v. HKT Cal, Inc. (2021) 66 Cal.App.5th 504, 526 (Mai.)
"[W]hile delaying litigation is generally disfavored in light of efficiency concerns (Gov. Code, § 68607), those concerns are secondary to the primary function of the court-to adjudicate disputes on their merits." (Mai v. HKT Cal, Inc., supra, 66 Cal.App.5th at p. 526; see Hamilton v. Orange County Sheriff's Dept. (2017) 8 Cal.App.5th 759, 766 ["[w]here denial of a continuance would result in manifest injustice . . . the policy disfavoring continuances must give way"]; see also Whalen v. Superior Court In and For Los Angeles County (1960) 184 Cal.App.2d 598, 601-602 ["[w]e conceive it to be the duty of a reviewing court to intervene when the uncontradicted facts clearly indicate that the trial court had a duty to grant to a requested continuance for a reasonable period and that its refusal to do so must be construed as amounting to an abuse of its discretion"].)
B. The Trial Court's Denial of Terrell's Motion for a Continuance Constituted Reversible Error
Terrell contends the trial court abused its discretion when it denied his request for a continuance to allow him an opportunity to secure legal representation to properly defend himself at trial. Terrell asserts he was effectively denied a fair trial and thus reversal is necessary. Related to this contention is Terrell's argument that the trial court's decision to hear and grant Setlich's motion to be relieved as counsel on a shortened notice period without good cause was also erroneous. Taken together, the confluence of the trial court's decisions-to hear and grant Setlich's motion without adequate notice, followed by a refusal to grant Terrell a continuance to secure new counsel- constitute reversible error.
The pressure trial courts face to promote expediency and efficiency must always be considered in conjunction with the obligation to adjudicate disputes fairly. When evaluating a request to continue the trial, "[w]hat is required is balance. 'While it is true that a trial judge must have control of the courtroom and its calendar and must have discretion to deny a request for a continuance when there is no good cause for granting one, it is equally true that, absent [a lack of diligence or other abusive] circumstances which are not present in this case, a request for a continuance supported by a showing of good cause usually ought to be granted.'" (Hernandez v. Superior Court (2004) 115 Cal.App.4th 1242, 1246-1247 (Hernandez).) Here, no such balance occurred. It was not only reasonable, but responsible and appropriate for Terrell to request a continuance when his counsel failed to appear for the first day of trial and the proof of service demonstrated that Setlich served Terrell with the signed order granting his motion to be relieved as counsel (which was also-without notice-heard on shortened time) was filed less than 24 hours prior. When Terrell admitted he could not immediately pay any of the past due balance on his mortgage, the trial court concluded Terrell would have insufficient funds to secure replacement counsel and denied his request for a continuance without further inquiry.
It is reversible error for a trial court to deny a reasonable request for a continuance that, through no fault of the requesting party, effectively deprives a litigant of counsel at trial. For instance, in Oliveros, supra, 120 Cal.App.4th at pages 1393 and 1397, the trial court refused to grant the defendant County of Los Angeles a continuance when its attorney was engaged in another trial. The court of appeal reversed, stating: "[The County's lawyer] sought a continuance, not because he was unprepared for trial, or because he sought a technical advantage by delaying trial, or for some other suspect reason. Rather, he was ordered to trial in another courtroom, and he could not be in two places at one time. Contrary to the judge's finding, the County presented good cause for a continuance. Again, we emphasize that, whatever counsel's shortcomings in managing his schedule, it is the rights of the client, not the lawyer, which are at stake here, and there is no showing that the County did anything to warrant the result reached in this case." (Id. at p. 1400.)
Similarly, in Hernandez, supra, 115 Cal.App.4th at pages 1245-1247, the appellate court reversed the trial court's denial of a plaintiff's request for a longer continuance and to reopen discovery, when plaintiff's counsel was battling cancer in the months leading up to trial and died less than two months before trial. The appellate court stated: "Forcing such a plaintiff to trial without counsel or adequately prepared counsel is not likely to ensure fairness, the overall policy of the law." (Id. at p. 1244.)
Although it was not Setlich's schedule or ailing health that left Terrell unrepresented by counsel on the morning of trial, the result-and the inherent unfairness-was the same. (See Oliveros, supra, 120 Cal.App.4th at p. 1398 [explaining "[w]hile the death of trial counsel is a tragic occurrence which cannot be compared to counsel's absence due to a scheduling conflict, the two situations lead to precisely the same legal result: An utter lack of legal representation in court"].) Before Terrell had any reasonable time to investigate how he might retain new counsel, it was unfair for the court to immediately conclude that Terrell's efforts would be fruitless because he "can't even pay the mortgage."
Not only did denying the continuance wholly deny Terrell legal representation at trial, but other considerations also weighed in favor of granting Terrell's request. First, the case was only nine months old when trial began; a 28-day continuance would still have allowed time for the trial court to conclude the matter within the 12-month "case disposition time goal[ ]" prescribed by the California Standards of Judicial Administration. (See Cal. Stds. Jud. Admin., § 2.2(f)(1).) Second, the trial was estimated to take only two days, which should have limited the impact and inconvenience on the parties and the court's calendar. (Cal. Rules of Court, rule 3.1332(d)(5) &(d)(7).) Third, Terrell's request for 28 days to seek out and secure new counsel was a modest ask. (Id., rule 3.1332(d)(3).) Fourth, this was a bench trial; there was no jury pool waiting in the wings. Finally, any "delay" prejudice to CHB would have been negligible because aside from Terrell and Lamotte (who were present, and who would always be present during trial), CHB only called one other witness (Oswalt, the local realtor whose direct and cross-examination together comprised less than seven pages of the trial transcript). (Id., rule 3.1332(d)(5).)
CHB also contends Terrell "had a history of delay" in moving the case to trial, pointing to Terrell's Chapter 13 bankruptcy action and the initial default judgment. These setbacks were much earlier in the case and did not prevent the court from expeditiously setting the final status conference and trial dates.
In addition, the exigencies that precipitated Terrell's request for a continuance were largely within the trial court's control. At the February 7 hearing the court allowed Setlich to notice the hearing date for his motion to be relieved as counsel within five court days, rather than the standard notice period of 16 court days, plus five calendar days for service by mail. (See Code Civ. Proc., § 1005, subd. (b).) The trial court then heard and granted Setlich's motion to be relieved as counsel, notwithstanding the absence of both Setlich and Terrell at the hearing and the fact that the trial date was only seven calendar days or four court days away. Further, the trial court conditioned Setlich's release as counsel upon his filing the proof of service of the order on Terrell. That proof of service, which indicated that it had been dropped in the mail that day, was not filed-and thus Setlich was not effectively relieved as Terrell's counsel-until less than 24 hours before trial. Under the circumstances, Terrell's oral request for a continuance was excusable.
While true that Code of Civil Procedure section 1005, subdivision (b) provides that court "may prescribe a shorter time" for a motion to be heard, we see no indication the court made such an order to that effect, aside from the February 7 minute order summarily indicating the hearing was tentatively set for February 14.
It is troubling that Setlich chose to serve his client with the court's signed order relieving him as counsel in the slowest of service options-by regular U.S. mail-on the eve of trial. Notably, Rules of Professional Conduct, rule 1.16(d) states that "[a] lawyer shall not terminate representation until the lawyer has taken reasonable steps to avoid reasonably foreseeable prejudice to the rights of the client, such as giving the client sufficient notice to permit the client to retain other counsel, and complying with paragraph (e) [directing the return of all client materials, at the request of client, and any fees advanced]."
Setlich brought his motion to be relieved as counsel pursuant to Code of Civil Procedure section 284, subdivision (2) rather than by mutual consent pursuant to section 284, subdivision (1) because, in his words, there was "an irreparable breakdown in the attorney client relationship that has made it difficult to properly represent client." In relevant part, Code of Civil Procedure section 284 provides that an attorney in an action may be changed or substituted at any time: "1. Upon the consent of both client and attorney, filed with the clerk, or entered upon the minutes; [¶] 2. Upon the order of the court, upon the application of either client or attorney, after notice from one to the other." (§ 284, subds. (1) &(2); see Lempert v. Superior Court (2003) 112 Cal.App.4th 1161, 1172 ["Code of Civil Procedure section 284 is a general statute that governs the withdrawal or substitution of counsel in both civil and criminal cases"].) As such, Code of Civil Procedure section 284, subdivision (2) independently prescribed that "notice from one to the other" was necessary before Setlich could be released as counsel of record in the action. (See also Cal. Rules of Court, rule 3.1362(e) ["[t]he court may delay the effective date of the order relieving counsel until proof of service of a copy of the signed order on the client has been filed with the court"].)
CHB cites County of San Bernardino v. Doria Mining &Engineering Corp. (1977) 72 Cal.App.3d 776, 781 (Doria Mining) for the proposition that "'continuances be granted sparingly, nay grudgingly, and then only on a proper and adequate showing of good cause.'" As discussed, in this instance Terrell demonstrated good cause for a continuance.
The facts in Doria Mining bear a passing resemblance to the present case, insofar as the defendant's request for a continuance was made orally on the date set for trial rather than by noticed motion or ex parte application, was unsupported by declarations, and the plaintiff had brought a witness and was ready to proceed. (Doria Mining, supra, 72 Cal.App.3d at p. 783.) Unlike here, however, in Doria Mining the request was made by a new attorney specially appearing for the defendant "for the sole purpose of requesting a continuance," who stated that if the continuance was granted, he would become the attorney of record and would then require one to two weeks to prepare for the trial. (Id. at pp. 781-782.) In affirming the trial court's denial of the continuance, the appellate court noted that there had been no actual substitution or any indication as to whether the attorney of record absolutely refused to try the case and thus "the motion [for a continuance] was premised on a hypothetical rather than an actual dilemma." (Id. at p. 783.) And perhaps most critically, the case in Doria Mining had already been pending for over four years. (See ibid.)
CHB also contends that irrespective of whether Terrell had good cause for a continuance, he "had a full and fair trial on the merits," thus alluding Terrell suffered no prejudice. We disagree. The trial court's orders granting Setlich's motion to be relieved as counsel and denying Terrell's request for a continuance to secure counsel infringed on Terrell's due process right to legal representation at trial and thus constituted reversible error per se. (Oliveros, supra, 120 Cal.App.4th at p. 1298 ["[a] civil litigant has a constitutional right to be represented at trial [citations], a right which ought not to be abrogated simply because the trial court concludes that the litigant's counsel of choice 'take[s] on too many cases'"], citing Roa v. Lodi Medical Group, Inc. (1985) 37 Cal.3d 920, 925-926 ["[a]lthough the right to be represented by retained counsel in civil actions is not expressly enumerated in the federal or state Constitution, our cases have long recognized that the constitutional due process guarantee does embrace such a right"].) Judicial efficiency remains a laudable goal and a valid consideration when a court evaluates a request for a trial continuance. And that holds true here, where ultimately "[a]voiding reversal on appeal is . . . the more efficient option, even when it causes trial delays." (Mai, supra, 66 Cal.App.5th at p. 526.)
Because the trial court abused its discretion by granting Setlich's motion to be relieved as counsel without adequate notice to Terrell and then denying Terrell's oral motion for a trial continuance in order to secure new counsel, we reverse. We need not and do not reach the remainder of Terrell's contentions on appeal.
DISPOSITION
The judgment is reversed. Appellant is entitled to his costs on appeal.
We concur: SEGAL, Acting P. J., FEUER, J.
[*] Judge of the Alameda County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.