Opinion
NOT TO BE PUBLISHED
San Mateo County Super. Ct. No. 081858.
Margulies, J.
Tatyana Feldman filed an application for an order to show cause for the disposition of an omitted asset in a marriage dissolution proceeding. Less than three weeks before trial, her former husband, Grigoriy Vilenskiy, replaced his attorney. On the eve of trial, the new attorney sought to withdraw from the representation, claiming that he had not been paid and could not communicate with Vilenskiy. On the morning of the first day of trial, the trial court granted the motion to withdraw, denied a motion for a continuance, and proceeded to adjudicate the matter in the absence of Vilenskiy, who called the court claiming to be hospitalized. We conclude that the trial court abused its discretion in permitting Vilenskiy’s attorney to withdraw under these circumstances, and we reverse the trial court’s judgment.
I. BACKGROUND
Vilenskiy filed a petition for dissolution of marriage from Feldman in October 2004. The petition listed no community assets subject to disposition. Judgment of dissolution was entered in February 2005.
Feldman filed an application for an order to show cause regarding an omitted asset in July 2006. The order to show cause requested adjudication of interests in and sale of a Daly City condominium. In a declaration accompanying the order to show cause, Feldman stated that she and Vilenskiy had purchased the condominium during their marriage, that they had agreed Vilenskiy would live in the condominium following their divorce, and that he had ceased making mortgage payments, raising the threat of foreclosure if the property was not sold. Trial was eventually set for March 14, 2007.
On February 23, 2007, less than three weeks before the scheduled trial date, attorney Thomas Thomatos substituted in as counsel for Vilenskiy. On the prior day, Feldman had filed a motion for an order shortening time on a motion for sanctions against Vilenskiy. In a declaration filed subsequently, Feldman’s counsel explained that Vilenskiy had failed to participate in good faith in settlement discussions, failed to appear at the mandatory settlement conference, and failed twice to appear for a noticed deposition.
Hearing on the motion for sanctions was held on March 8, 2007, less than a week before trial. Thomatos appeared for Vilenskiy and informed the court that Vilenskiy was “very ill” and that Thomatos had difficulty communicating with him. According to Thomatos, Vilenskiy was depressed and recently had expressed “morbid” and “suicidal” thoughts. Thomatos handed the court letters from a physician stating that Vilenskiy suffered from arthritis and hypertension. The court awarded Feldman $2,000, in connection with the missed deposition and ordered Vilenskiy to appear for deposition within the next two business days.
Two days before trial, on March 12, Vilenskiy submitted an ex parte application for an order shortening time to seek a continuance of the trial date. The declaration submitted by Thomatos in connection with the application stated that he had discovered evidence of fraud or undue influence by Feldman over Vilenskiy that was not properly pursued by predecessor counsel. Counsel also asserted that he needed further time to investigate issues associated with the condominium and repeated that Vilenskiy was in poor mental health.
The next day, Thomatos submitted an ex parte application for an order shortening time on a motion to withdraw as Vilenskiy’s counsel. The associated declaration stated that Thomatos had agreed to represent Vilenskiy on an emergency basis and that Vilenskiy now refused to sign a fee agreement or to pay for Thomatos’s time. Thomatos also noted that communication with Vilenskiy was difficult and that Vilenskiy had a hostile and belligerent attitude.
Trial began the next day. Thomatos opened the hearing by apologizing for the absence of his client. Vilenskiy had left a message for Thomatos stating that he was sick and intended to check into a hospital. Other than this message, Thomatos had been unable to contact his client. Thomatos then repeated his request to withdraw as counsel. Thomatos explained, “I have no way of effectively communicating with this man aside from the fact that—my other issue is that he won’t—he doesn’t want to pay me any money at all which he agreed to do. That’s a side matter, but I have no way to even communicate with him to do anything at this point, and I don’t know if it’s his emotional problems or what it is, but he will not contact me or communicate with me in any effective way.”
The court then stated that it had received “several calls from Mr. Vilenskiy and from a woman who claims she was an RN at Seton Medical Center indicating that he was in the hospital and had some mental issues,” which calls were directed to the court’s clerk. Although Vilenskiy claimed to be ill, the court noted, “[A]t this juncture unfortunately he has not provided me with any documentation. I realize some letters have been provided to the court that he may have had some stress and issues. But, you know, to date I see no sufficient documentation to indicate that he’s so mentally unstable that he was unable to show up for trial today.” Proceeding to the motion to withdraw, the court ruled, “[G]iven Mr. Vilenskiy’s behavior and situation, I am going to grant your motion to be relieved as counsel today.”
The court then announced that it would proceed with trial in Vilenskiy’s absence. The court explained that “Mr. Vilenskiy [has] willingly taken actions to interfere with the lawful process of the court and to obstruct . . . due process in this matter, and that [Feldman] is entitled to her day in court . . . .” The court then detailed the history of the litigation, including Vilenskiy’s filing a petition for dissolution falsely stating there were no community assets, failure on two occasions to attend the mandatory settlement conference, late substitution of Thomatos for his prior counsel, and his knowing absence from trial without proper excuse. The court concluded that Vilenskiy “has willfully intended to obstruct these proceedings and to obstruct the due process that [Feldman] is seeking in this case. . . . [H]e’s voluntarily absented himself in this matter and I’m going to proceed with the trial today.” Thomatos was dismissed, and the court proceeded with trial in Vilenskiy’s absence. The only witness, Feldman, was examined by her counsel and the court. The court subsequently entered an order for sale of the condominium, requiring Vilenskiy to pay the expenses associated with the condominium in the meantime, awarding the community fair value rent for the period of Vilenskiy’s sole occupancy, and dividing the proceeds of the sale equally.
II. DISCUSSION
Vilenskiy contends that the trial court erred in refusing to grant the continuance requested by Thomatos, in permitting Thomatos to withdraw, and in proceeding with the trial in Vilenskiy’s absence. We review trial court decisions on a motion for a continuance and a motion by counsel to withdraw for abuse of discretion. (Oliveros v. County of Los Angeles (2004) 120 Cal.App.4th 1389, 1395; Hodcarriers, etc. Local Union v. Miller (1966) 243 Cal.App.2d 391, 395.)
Feldman argues that we should not entertain Vilenskiy’s appeal because he could have taken steps in the trial court to obtain a new trial. Because she cites no authority holding that exhaustion of these remedies was required before the filing of an appeal, we find that the mere availability of other possible remedies does not bar the appeal.
Although the decision to grant or deny a continuance is in the discretion of the trial court, “ ‘[t]he trial judge must exercise his 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. [Citations.]’ ” (In re Marriage of Hoffmeister (1984) 161 Cal.App.3d 1163, 1169.) The State Bar Rules of Professional Conduct are similarly structured to prevent prejudice to clients through withdrawal of counsel. An attorney may not terminate employment unless he or she “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, . . . and complying with applicable laws and rules.” (Rules of Prof. Conduct, rule 3-700(A)(2); Ramirez v. Sturdevant (1994) 21 Cal.App.4th 904, 915.)
These two principles intersect when an attorney moves to withdraw from litigation on the eve of trial without having provided for adequate substitute counsel. In the absence of a continuance, the granting of such a motion will ordinarily require the client to proceed without counsel, thereby abetting an ethical violation. In Vann v. Shilleh (1975) 54 Cal.App.3d 192 (Vann), the grant of a motion to withdraw at the time of trial and the denial of a continuance was held to be an abuse of discretion. In Vann, the defendant’s counsel was permitted to withdraw three days before trial. Although relieved of the representation, the attorney nonetheless appeared at the time set for trial and, in the client’s absence, sought a continuance to permit the defendant to retain new counsel. (Id. at p. 195.) The court refused the request and called the matter for trial one hour later, at which time the defendant appeared and repeated the request for a continuance. The trial court again refused and forced the defendant to proceed to trial in pro. per. (Id. at pp. 195–196.) The Court of Appeal held that the trial court abused its discretion in requiring the client to proceed to trial: “The right of counsel to withdraw from pending litigation is not absolute. . . . [The predecessor of California Rules of Professional Conduct, rule 3-700(A)] provides: ‘(2) In any event, a member of the State Bar shall not withdraw from employment until he has taken reasonable steps to avoid foreseeable prejudice to the rights of his client, including giving due notice to his client, allowing time for employment of other counsel, delivering to the client all papers and property to which the client is entitled, and complying with applicable laws and rules.’ [¶] It was the duty of the trial court to see that [the defendant] was protected, so far as possible, from the consequences of [counsel’s] improper abandonment of his client.” (Id. at p. 197, fn. omitted.)
The circumstances here are nearly identical. Thomatos filed his motion to withdraw the day before trial was to begin, apparently without advance notice to his client. There is no evidence in the record that Vilenskiy was informed of Thomatos’s intent to withdraw prior to his receipt of service of the motion to withdraw the day before trial. Further, there is no indication Thomatos took any steps to protect Vilenskiy’s interests prior to his withdrawal, other than to seek a continuance. When the continuance was denied, Thomatos nevertheless abandoned representation of Vilenskiy, who was not even present in court to protect his own interests.
Symptomatic of the peremptory nature of Thomatos’s withdrawal was his violation of the court rules governing withdrawal. Under California Rules of Court, rule 3.1362, an attorney seeking to withdraw by motion, rather than by consent of the client, is required make that motion using approved Judicial Council forms. (Cal. Rules of Court, rule 3.1362(a) & (c).) Judicial Council form MC-052, the attorney’s declaration, requires that the client be provided no less than five days’ notice before hearing on the motion. Because his withdrawal on the eve of trial precluded the necessary notice, Thomatos altered the form to provide only one day of notice.
We recognize that this case may be distinguished from Vann in one regard. Here, it may well be that Vilenskiy’s late change of counsel, his lack of cooperation with his new attorney, and his failure to appear at trial were a manipulation of the trial court, designed to stall the proceedings. On the other hand, Thomatos raised colorable issues regarding Vilenskiy’s mental health. Although the trial court was informed by both Vilenskiy and a nurse that Vilenskiy had been hospitalized and had been told the location of the hospital, the court made no attempt to confirm the information and determine the reason for his hospitalization. On the record before us, it is impossible to determine whether Vilenskiy’s absence was justified. Nor could the trial court have known at the time it discharged Thomatos.
Regardless, a client’s malfeasance does not excuse an attorney from his or her ethical obligations, nor does it excuse the “duty of the trial court to see that [the defendant] was protected, so far as possible, from the consequences of [counsel’s] improper abandonment of his client.” (Vann, supra, 54 Cal.App.3d at p. 197.) Once having agreed to represent Vilenskiy, Thomatos was required continue to do so until he was able to withdraw in a manner consistent with the Rules of Professional Conduct, and the court had a duty to prevent Thomatos’s departure under circumstances that created a risk of prejudice to Vilenskiy. If the trial court was intent on proceeding that day, despite the evidence of Vilenskiy’s poor emotional health and lack of communication with his attorney, the trial court could, at a minimum, have denied the motion to withdraw, thereby ensuring that an attorney was present during the trial to represent Vilenskiy’s interests. Instead, it chose to deprive Vilenskiy of representation. To grant the motion to withdraw under these circumstances without simultaneously granting a continuance to permit Vilenskiy to find new counsel was an abuse of discretion.
Feldman’s brief on appeal never addresses Vann and relies primarily on Jones v. Green (1946) 74 Cal.App.2d 223. While it is true that the Jones court found no abuse of discretion in the trial court’s denial of a continuance following the grant of an attorney’s motion to withdraw on the day of trial, that affirmance turned on some very unusual facts. Jones was an action for a declaration of paternity and child support. The trial had been preceded by an order to show cause proceeding that was characterized as “ ‘practically a trial of the case’ ” and resulted in a finding of paternity and an award of temporary support. The putative father was represented by counsel at the show cause proceeding. (Id. at p. 226.) Father’s counsel asked to be relieved on the day of trial because, in the absence of additional evidence, he considered the trial to be a waste of his client’s money. (Id. at pp. 227–228.) After the attorney’s departure, the primary evidence introduced at trial was the record of the show cause proceeding, and the outcome was identical. (Id. at pp. 228–229.) It is only under these unique circumstances, in which the absence of counsel was of little prejudice to father because of the earlier hearing, that the trial court’s action was found a proper exercise of discretion. Here, of course, there was no earlier proceeding at which Vilenskiy’s case had been presented. There is therefore no basis for concluding that Thomatos’s withdrawal was not prejudicial to Vilenskiy.
In light of Vilenskiy’s right to be represented by counsel at the hearing and the absence of any evidentiary presentation on his behalf, we decline Feldman’s invitation to speculate on whether, in fact, the absence of counsel was prejudicial to Vilenskiy.
In virtually all other cases we have located finding no abuse of discretion in the grant of a motion to withdraw on the eve of trial, the trial court granted a continuance to permit the abandoned party to locate new counsel. (Forrest v. Department of Corporations (2007) 150 Cal.App.4th 183, 190; Linn v. Superior Court (1926) 79 Cal.App. 721, 725; cf. Oliveros v. County of Los Angeles, supra, 120 Cal.App.4th at p. 1395 [abuse of discretion not to grant a continuance when counsel’s unavailability would have required party to proceed without representation]; but see Slaughter v. Zimman (1954) 105 Cal.App.2d 623, 625 [affirming refusal of continuance after grant of a motion to withdraw at the time of trial when client had consented to the withdrawal over one week prior].)
III. DISPOSITION
The judgment of the trial court is reversed.
We concur: Stein, Acting P.J., Swager, J.