Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County, No. 00CC11368, Andrew P. Banks, Judge.
Law Offices of John M. Boyko and John M. Boyko for Plaintiffs and Appellants.
Robie & Matthai, Edith R. Matthai and Natalie A. Kouyoumdjian for Defendants and Respondents.
OPINION.
SILLS, P. J.
I. The Opening Brief
It is often said that initial impressions are misleading. Take this case for example. If one just read the appellant’s opening brief, this is the basic story one would encounter: In late November 2005, as trial was looming, pro per appellants Irenemarie and John Kennedy finally found an attorney to represent them. However, after being retained, the Kennedys’ new lawyer learned that he needed eye surgery, and would not be able to read for about four or five more weeks. Upon learning of the necessary surgery, and with a trial date set for January 3, 2006, the new lawyer promptly sought a continuance, and then only for a mere four weeks until the end of January 2006. But the trial judge, the Honorable Andrew Banks, apparently overly concerned with the prejudice to the defendants and their insurance company (including the self-exhausting nature of their insurance policy), and further having evidenced a disdain for pro per litigants, refused the request. The two pro per appellants were left to fend for themselves while their attorney recovered from surgery. The pro per appellants, unable to cope with a “dispositive” motion in limine brought by the defendants, predictably lost their case. At the same time, another party (affiliated with the pro pers) who was represented by an attorney likewise needed a continuance to have its standard-of-care expert available to testify, because that expert had a prepaid vacation. The trial judge denied the motion, and then, to add insult to injury, denied that party’s request to augment its expert witness list. The judge even refused to admit portions of the reluctant expert’s deposition testimony into evidence. That party also, predictably, lost its cause of action for legal malpractice because of the absence of any standard-of-care testimony.
Sometimes, however, one must get the whole story in order to have an accurate picture of events. The seemingly haughty and prideful Fitzwilliam Darcy turned out to be a pretty nice guy by the end of Jane Austin’s Pride and Prejudice. Zoroaster was not the villain who, as he is first introduced to the audience, supposedly kidnapped the Queen of the Night’s daughter in Mozart’s the Magic Flute. And in the case before us, Judge Banks did not imperiously refuse two hapless pro per litigants a short continuance so as to have the services of a lawyer delayed only because of necessary eye surgery. When one looks at the actual history of the litigation, one finds Judge Banks actually bent over backwards to be fair to the appellants, only refused the continuance after the case had already been continued multiple times and only after, more than six months before, he had practically begged the pro per litigants to be diligent about finding an attorney, and also after the two pro per litigants had obtained one additional continuance in the interim. Not the mention the evidence of deliberate gamesmanship on the part of the pro per litigants themselves . . . .
II. The Full Story
A. The Malpractice Action and the Underlying Case
This particular case began eight years ago, in September 2000, when five business entities plus two individuals, Irenemarie Kennedy and John Kennedy, filed a complaint against attorney Clifford Roberts and his law firm for legal malpractice based on his legal representation of all seven plaintiffs in connection with a Los Angeles case involving the partition of the Carson Hotel. We will call the five business entities and two individuals, depending on the context, either the “Kennedy entities” or the “Kennedy litigants.”
The original complaint listed four corporations (KRAD Associates, LLC., KPOD, Inc., KAC, Inc., Kennecorp Mortgage Brokers, Inc.) and one partnership (M&B Partners) as plaintiffs. KRAD Associates was listed as a California limited liability company, all of the rest were Ohio business entities. In the first amended complaint in October 2000, however, KRAD dropped out and SPM, Inc., an Ohio Corporation, took its place at the top of the lineup.
The underlying case in which Roberts had allegedly committed legal malpractice was itself hugely complex, and gave rise to a published opinion, PBA, LLC v. KPOD, Ltd. (2003) 112 Cal.App.4th 965 (PBA). It is so complicated, in fact, the court did not publish the statement of facts in the opinion. It did, however, open with these lines, suggesting the magnitude of the Carson Hotel partition litigation: “This appeal is the latest episode in a long story of litigation commencing in 1997. At different stages it was heard by five judicial officers, culminating in a record of nearly 20,000 pages.” (Id. at p. 968.)
One of the main foci of the published opinion was its determination that one judge had abused his discretion in vacating an earlier judge’s order declaring Sailor Kennedy to be a vexatious litigant. (See PBA, supra, 112 Cal.App.4th at pp. 975-976; see also id. at pp. 977-980 [essentially, there were no new facts to justify lifting the vexatious litigant order].) The court held that Sailor Kennedy was a vexatious litigant despite a later judge’s ultimately unsuccessful attempt to undo that status.
Irenemarie and John Kennedy are the daughter and son of Sailor Kennedy. Irenemarie and John Kennedy are also the sole shareholders of one of the business entities, KAC, and their father Sailor is partners with another man in another of the business entities, the M&B partnership.
By the time of the appeal in the Carson Hotel litigation, the Kennedy entities were being represented by Federico C. Sayre and his law firm, who also filed all complaints through the (last in our record) fourth amended complaint. It was Sayre who, in December 2004, filed a series of motions to be relieved as counsel for each of the Kennedy entities.
B. Events Leading Up to The Kennedy Litigants’ Counsel’s May 2005 Withdrawal
At the time of the December 2004 motions, trial in this legal malpractice action was set for March 21, 2005, and a summary adjudication motion brought by defendant Roberts was pending for February 18, 2005. Each of the Sayre’s motions to be relieved contained the same, very general language, obviously framed to avoid compromising any of his client’s rights: “There has been a breakdown of the attorney-client relationship resulting in irreconcilable differences between the attorney and client.”
The motions to be relieved were scheduled for March 21, 2005, along with Roberts’ summary adjudication motion. At the hearing the motions to be relieved were continued to May 6. In the meanwhile, Sayre filed opposition on behalf of the Kennedy entities to the pending summary adjudication motion. That effort, however, was not successful. The trial court made an order knocking out the Kennedy entities’ second and third causes of action for intentional misrepresentation and breach of fiduciary duty, and all claims for punitive damages.
In the wake of the summary adjudication motion, only the Kennedy entities’ causes of action for legal malpractice and breach of contract remained. However, about the same time, defendant Roberts brought a motion to dismiss four of the Kennedy business entities (SPM, KPOD, KAC and Kennecorp Mortgage Brokers) because they were all foreign corporations not qualified to do business in California. (Basically, they hadn’t paid their filing fees to the California Secretary of State, then racked up penalties for already transacting business without paying those fees, and also hadn’t paid corporate franchise taxes.) The trial court agreed in a ruling made in April 2005. A formal order of dismissal was filed in September 2005.
C. The Hearing on the Motion to Withdraw
Sayre’s motions to withdraw were heard on May 6, 2005 as scheduled. The transcript of the hearing goes about 76 pages. Three major themes emerge from a review of that transcript:
(1) After some considerable research and thought, the trial judge had concluded that, in order to allow the Kennedy litigants to preserve the attorney-client privilege, the hearing should be conducted on the record, with Roberts’ counsel present, and, most particularly, that the Kennedy litigants would not have the opportunity to disclose confidences to him in private, in camera proceedings.
“The court: Now, moving to that issue, which would have been the next, Mr. Millican, in the papers you filed, you inquired -- asked me to hold an in-camera hearing so that the reasons for opposition with regards to the withdrawal of counsel could be said to the court and not result in a waiver of the attorney/client privilege. As I’ve thought about that, I don’t think that can occur. You can’t make me part of a communication that waives a privilege, and then say it’s not waived, nor do I intend to allow the court to be placed in that kind of position.”
(2) The trial judge bent over backwards to allow the individual Kennedy litigants to have their say. First, he allowed Patrick Millican, an Ohio attorney not also admitted in California and who represented the one remaining Kennedy business entity, M&B, to speak at length in the proceeding, taking Millican’s word that he would later follow the statutory requirements for becoming properly admitted pro hac vice. Second, he allowed Sailor Kennedy, appearing as a non-lawyer and whose only interest was as a partner in the M&B partnership, to speak at great length about Sayre’s request to withdraw. That leniency was underscored by the fact that the trial judge went out of his way to solicit the views of Irenemarie and John Kennedy, and their contribution was nothing more than to say they agreed with their father, Sailor.
(3) In presenting his case, Sailor Kennedy basically attacked Sayre for poor representation of the Kennedy entities, and in particular Sayre’s failure to submit declarations opposing Roberts’ recent summary adjudication motion. In fact, Sailor Kennedy clearly implied that if the trial judge granted Sayre’s motion to withdraw, Sailor Kennedy would bring yet another legal malpractice action, this time against Sayre himself. (Later, in early November 2005, attorney John Boyko would make good on that threat, on behalf of a entity called “Calstar,” a story we will soon tell.)
As illustrated by this passage, in which Sailor Kennedy had just finished complaining about Sayre’s handling of a possible settlement of the case:
The passage from the transcript, emphasized in the opening brief, that has the trial judge supposedly evidencing a disdain for pro per litigants, in context, had to do with Sailor Kennedy’s offering his opinion that, since Sayre had failed to file declarations opposing the summary adjudication motion, it would take an “attorney” to “undo” that error on a motion for relief under section 473 of the Code of Civil Procedure. In that regard, some minutes later, attorney Millican made the argument that the court should keep Sayre in the case “until” he and his firm did “a 473(b) on the motion for summary adjudication and put in the facts and the appropriate facts which they have in their file which they didn’t put in. . . .”
“The court: Well, Mr. Kennedy, after you get yourself a law degree and pass the bar in the state of California, I’ll be interested in your opinion of the law, but short of that, with all due respect, sir ---.”
Just before the remarks quoted in footnote 4, Sailor Kennedy said: “When you take these documents and your own attorney then comes to court when we had the evidence and he tells you, ‘You don’t need declarations in a summary-judgment motion,’ and there’s three letters saying, ‘Yes, you do,’ and he’s saying, ‘no, we don’t, we don’t need them, don’t want ‘em,’ we’re stuck. Only that attorney can undo it on 473. That’s the law. I mean, there’s -- I’ve researched 473 until you can’t find it.” (Italics added.)
The low opinion which both Sailor Kennedy and Ohio attorney Millican expressed of Sayre’s work would appear to have backfired if they were sincere in trying to keep Sayre in the case. The trial judge ruled that there had been a “classic breakdown in communications and relationships between lawyers and clients” and granted Sayre’s withdrawal motion, specifically noting, in an obvious allusion to yet another malpractice action, that if Sayre had “committed malpractice or breached a contract,” the law provided them with an “adequate remedy.”
That left the need for the Kennedy litigants to find another attorney, given an “immense file.” (Millican had earlier said it consisted of 150 to 200 boxes of documents.) Trial was being set for September -- about five months away at that point. Accordingly, the trial judge admonished the Kennedy litigants to begin diligently looking for new counsel: “It is my hope, my suggestion and my desire that you’ll have counsel within 90 days of today’s date. So let no delay occur, use all good time and haste to determine whether you can retain counsel to prosecute this action . . . .”
D. Actions and Inactions In the Wake of the May 2005 Withdrawal
If the trial judge had erred or abused his discretion in allowing Sayre to withdraw, the issue was soon waived. None of the Kennedy litigants brought a petition for a writ of mandate to have the order vacated. As noted, the trial judge had already allowed Sayre to appear pro hac vice in connection with the recusal matter, and it is (granted, we speak from hindsight) inconceivable that this court would have refused to consider such a writ merely on the ground it was prepared by Millican. (Though we might have, like the trial judge, requested some indication of compliance with California’s statutes allowing a pro hac vice appearance.)
In any event, the trial scheduled for late September 2005 loomed. In late August, a California attorney, Robert Klein, substituted in as counsel for one of the Kennedy litigants, M&B partners. About that time, Irenemarie and John Kennedy moved, in pro per, to continue trial. Also in mid-September 2005, Irenemarie and John filed a declaration and statement of bias and prejudice against the trial judge based on the granting of the withdrawal motion. The declaration was dated September 15, 2005.
There is, in passim, some grousing in the appellants’ briefs about Millican not being allowed to continue to proceed pro hac vice, but since that point is not raised in an appropriate heading or subheading, it is waived and we need not consider it further.
This motion to disqualify prompted Judge Banks to trail the late September trial date pending another judge’s ruling on the motion to disqualify him. The judge, Charles McCoy, was a Los Angeles Superior Court judge.
The motion to disqualify was not ruled on for another month and a half, resulting in a de facto continuance of the late September trial date. On November 15, 2005, Judge McCoy issued an 11-page order, quoting large swaths of transcript. He found no bias and denied the motion. However, the time consumed by the failed disqualification motion resulted in a de facto continuance. In the wake of Judge McCoy’s mid-November order denying disqualification, trial was set for January 3, 2006.
E. Sometime Prior to November 8, 2005, The Kennedy Litigants Find An Attorney
We now come to the involvement of Irenemarie and John Kennedy’s current appellate counsel, John M. Boyko. As noted above, the underlying Carson Hotel case was an enormously complex one, consuming about 20,000 pages of record. One subplot to that litigation was a lawsuit brought back in 2000 by attorney Sayre on behalf of an entity known as Calstar, LLC against the law firm of Berger Kahn Shafton Moss Figler Simon and Gladstone. Predictably, it was yet another suit for legal malpractice.
Calstar, it turned out, was composed of two of the Kennedy business entities, SPM and KAC, and KAC’s sole shareholders were Irenemarie and John Kennedy. It was Calstar that filed, on November 8, 2005, a legal malpractice complaint against Sayre. John Boyko was Calstar’s attorney.
More than a month later, on December 16, 2005, Boyko appeared in court in this case, representing Irenemarie and John Kennedy, on a ex parte motion to continue the trial. Boyko’s declaration stated that he had “orally agreed to substitute into” this case on November 29, 2005. We emphasize the fact that the substitution was in this case because it is a reasonable inference (see last paragraph) that Boyko had clearly gained some familiarity with the facts going back to November 8. However, because of unspecified business in New York, Boyko was unable to prepare the requisite paperwork, i.e., a formal retainer agreement and substitution of attorneys, until December 13 and 14, respectively. The declaration also related that on December 6, a retina doctor at the Jules Stein Eye Institute at UCLA discovered that Boyko had a hole in his macula that required vitrectomy surgery, and that the surgery would leave Boyko visually impaired for about a month. Boyko stated he scheduled the surgery for December 21 to “minimize” the interference with is law practice.
While Boyko’s own declaration did not say that his eye doctor told him that the surgery needed to be done fairly quickly, he also included his doctor’s declaration that “If left untreated, the right eye will continue to deteriorate and the likelihood of a successful vitrectomy will diminish.” Hence, said the doctor, “In light of the foregoing I have asked Mr. Boyko to schedule the vitrectomy sooner than later.”
While the ex parte motion did not propose a specific date to which the trial would be continued, Boyko’s declaration made it clear that he needed a date sometime after “end of January 2006,” because it would not be until then that he would even be able to read any of the trial materials. The motion to continue was denied on December 16, 2005.
For an ex parte hearing, it was a remarkably long one. Judge Banks went over the history of the litigation -- including the fact that it had been set for trial on seven previous dates, including November 1, 2002. He returned several times to the fact that Irenemarie and John Kennedy had been warned back in May 2005 about the need to diligently retain counsel. And, while Judge Banks absolved Boyko of any involvement in “game-playing,” he specifically opined that Irenemarie and John Kennedy had “been engaging in calculated delaying activities.”
In response to Boyko’s arguments about the predicament that not granting the motion would leave him in, the trial judge said that Boyko had the opportunity to come in on an ex parte basis to withdraw. The trial judge also noted the prejudice to Roberts’ defense from yet another continuance, given that legal malpractice liability insurance policies tend to be “burning” policies, that is, the limits available to pay off any judgment go down as defense costs increase. Boyko’s response to that comment was to assert that since “we don’t live in the age of selectric typewriters anymore,” the defense would have only minimal additional preparation in the event of a continuance. “These people have word processors. It’s just a matter of changing dates on their end.” (We shall have more to say on that point, anon.)
Stating on the record that, having “looked at both sides and balanced all of the issues,” the trial judge denied the ex parte motion. In the interim, Boyko prepared a writ petition seeking to overturn the order denying the motion. This court denied it.
F. The Action, Filed in 2000, Finally Came to Trial In January 2006
Trial did commence January 3, 2006. One of the Kennedy litigants, M&B, was represented by attorney Robert Klein. An attorney friend of Boyko’s, Mitchell Green came to the trial to “file paperwork” on Boyko’s behalf (another attempt at disqualification), but Green made it very clear that he was not “making an appearance” for Boyko.
Back in September 2005, when the case was originally scheduled for trial, defendant Roberts had filed a motion in limine to preclude any claims on the part of Irenemarie and John Kennedy for damages because they had already recovered for those damages in another action. Opposition to that motion was due back in September, and the trial judge noted that no opposition had ever been filed. Nevertheless, he asked Irenemarie and John in open court if they had anything they wished to say in opposition to the motion. Both said that without their attorney they were not going to make a statement. The trial judge even pressed them for a reason they did not file opposition when it was due, and explained the nature of the motion to them. Neither had an answer. The court granted the motion.
“The court: Well, what it asks me to do is to prevent either of you and both of you from bringing any claim for monetary or other damage in this case because you have no standing to seek any recovery in this case because you’re not a proper party, the parties to the claims that remain, malpractice and breach of contract. Says you were not a party to the contract, and these lawyers don’t have liability to you based on malpractice because the claims that are asserted don’t involve you not getting any money you supposedly were entitled to. Have I accurately stated the motion?”
That left another of the Kennedy litigants business entities, M&B (the entity in which Sailor Kennedy was a partner), still in the case. As noted above, the case had been going on since 2000. In late January 2002 -- that is, almost four years before the January 2006 trial -- the Kennedy litigants (represented by their then-attorney Sayre) had designated attorney Lee Wood as an expert. But Wood was never paid for his services, including the expert witness deposition given in April 2002. Wood was also never advised about the status of the case or provided with (any of the several) trial dates for almost four years. So, sometime on or prior to December 2004, not having been paid for his services and (reasonably) assuming the case had been settled or otherwise disposed of, Wood discarded all the materials he had reviewed to form his expert opinion. It was not until December 19, 2005 -- with the January 3, trial date looming -- that Robert Klein, attorney for M&B, contacted Wood and told him his services would be needed. Alas for M&B, Wood had a prepaid trip to China scheduled for the same time. The trip had been planned for more than eight months, and Wood had already spent around $10,000 on airfare and trip preparation. Wood begged off the request, though he suggested that his earlier deposition might still be used, even if it hadn’t been paid for.
Wood was not subpoenaed for trial. Almost right after the trial court granted the motion to preclude evidence of damages from Irenemarie and John Kennedy, the court heard argument on M&B’s motion for a continuance based on Wood’s unavailability. The continuance motion was denied.
A jury was impaneled and a trial was conducted on the claims of M&B for legal malpractice and breach of contract. The issue of expert testimony surfaced again during the trial on Valentine’s Day in 2006, when M&B sought to “augment” its expert witness list so as to replace Wood with attorney Boyko, or, “alternatively,” allow portions of Wood’s 2002 deposition to be read to the jury. Defendant Roberts opposed the motion on the ground that Wood was not actually “unavailable,” given that his attendance could have been compelled by process (cf. Evid. Code, § 240, subd. (a)(4)-(5)). Wood’s own declaration was submitted in opposition to the motion, noting that Wood had heard nothing from the Kennedy litigants since April 2002, and Wood hadn’t been paid for his services at all, hence Wood had no reasonable expectation of being called for trial.
Roberts also argued that Wood’s 2002 unavailability was the product of the Kennedy litigants’ own wrongdoing. (Cf. Evid. Code, § 240, subd. (b) [“A declarant is not unavailable as a witness if the . . . inability, or absence of the declarant was brought about by the procurement or wrongdoing of the proponent of his or her statement for the purpose of preventing the declarant from attending or testifying.”].) And he argued that Wood’s deposition lacked sufficient foundation for use in trial, because the materials he had been given to review were woefully incomplete, including the fact that Wood had not been given the depositions of attorney Millican or Sailor Kennedy, any of the documents regarding escrows for a “flip sale” of the Carson Hotel, or any of the transcripts in an accounting trial in the underlying case. On top of that, Wood had not reviewed any of the actual discovery in the underlying case.
The trial court first denied the request to allow attorney Boyko to substitute for Wood as an expert witness. M&B then rested, subject to its request that portions of Wood’s deposition to be read to the jury. Two days later, the trial court denied that request as well, noting that Wood had not read all the depositions in the underlying action, had not read the transcripts of the underlying action, and had not read or reviewed the discovery in the underlying action. The judge noted in a minute order that, “Indeed, most of the information he [Wood] claimed to have, came from his conversations with Sailor Kennedy and Plaintiff’s prior counsel, Mr. Sayre, all of which would be hearsay.”
In the wake of that determination, the trial judge granted Roberts’ motion for a nonsuit against M&B on the legal malpractice action. Even so, the judge allowed M&B to proceed on its breach of contract claim and M&B did not rest on that claim until February 27, 2006. The next day, February 28, 2006, after both sides presented closing arguments to the jury, the jury returned special verdicts finding that Roberts and his firm had not breached the contract.
G. Post-Trial Events and This Appeal
A judgment in the entire action providing that M&B and Irenemarie and John Kennedy “take nothing by their complaint” was filed May 8, 2006. Notice of entry of that judgment was sent on May 17, and a notice of appeal was filed July 14 by attorney Boyko, purporting to represent “each” of the plaintiffs, including the business entities “SPM etc.”
However, in October 2006, the appeal of three of the business entities among the Kennedy litigants, SPM, KPOD, and KAC, was dismissed. Since notice of a formal order of dismissal had been mailed September 21, 2005, the July 14, 2006 notice of appeal was way too late for those entities.
The September 2005 order of dismissal included a fourth business entity, Kennecorp Mortgage Brokers, but this court’s October 2006 order of dismissal only mentions SPM, KPOD, and KAC. Any discrepancy, however, is moot, because the appellant’s opening brief presents no issue concerning Kennecorp Mortgage Brokers as such. Rather, the opening brief presents only two issues, both of which go to the two sets of parties still clearly in the appeal: (1) Whether it was an abuse of discretion to deny the request of Irenemarie and John Kennedy for a continuance (by which the opening brief means the December 16, 2005 request for a continuance) and (2) whether the court abused its discretion in denying M&B’s motion to continue for lack of availability of expert witness Wood, or otherwise erred in denying M&B’s alternative request to substitute attorney Boyko himself as an expert witness in place of Woods.
III. Irenemarie and John Kennedy’s Motion to Continue
Having recounted the history of the litigation in detail, it is almost self-evident that the trial judge acted within the bounds of reason in denying the December 16, 2005 ex parte request to continue.
Most significantly, the record is remarkably silent as to their efforts in the period from May 6 until, at best, that unspecified point in time prior to November 8, 2005, when John Boyko was convinced to represent Calstar against Sayre in yet another legal malpractice action. (And the delay is even greater if taken to the time when Boyko orally agreed to represent Irenemarie and John Kennedy in this action.) And yet back in May 2005, Judge Banks had practically begged Irenemarie and John to start looking for a new attorney, then.
The case had been around, literally, for more than five years. The original complaint having been filed in November 2000. We may presume that Boyko, as an ethical attorney, would have notified his clients, after he was orally retained at the end of November 2005, about his unavailability for a January trial as soon as he discovered it, which, according to his declaration, would have been about December 6. Yet by that point there were any number of factors that would have strongly disfavored any continuance, including the close proximity to the trial date (Cal. Rule of Court, rule 3.1332(d)(1)), the previous continuances (Cal. Rule of Court, rule 3.1332(d)(2)), the relatively lengthy time needed for Bokyo to “get up to speed” even after he recovered his eyesight in late January (Cal. Rule of Court, rule 3.1332(d)(3)), the prejudice to the defendants with their “wasting” malpractice insurance policy (Cal. Rule of Court, rule 3.1332(d)(5)) and, last but not least, the sheer untoward amount of time that had passed since the complaint (Cal. Rule of Court, rule 3.1332(d)(10)). Having been so alerted, the Kennedy litigants nevertheless pressed ahead with Boyko, knowing the low probability of success for the continuance motion and his unavailability for a January trial.
The trial judge could easily draw the reasonable inference that Irenemarie and John Kennedy were using their new-found pro per status as a sword, in order to delay trial. That inference would also be supported by Sailor Kennedy’s allusion back at the May 6 hearing to yet more malpractice suits, confirmed by the recent litigation filed by Calstar (Irenemarie and John) in early November. A strategy of bringing an infinite regression of malpractice suits based on each previous cases’s less-than-satisfactory results could easily be detected.
The prejudice to the defendants deserves a special note. They had a self-consuming legal malpractice policy. Arguments during the May 2005 withdrawal hearing revealed that already half of the $1 million policy had been exhausted in defense costs. The amount remaining to satisfy any judgment which the Kennedys might obtain was surely less by December 16. While in this appeal the Kennedys argue the trial judge improperly took account of the self-consuming nature of the policy as somehow being overly solicitous of the interests of Roberts’ malpractice insurer, the irony is that it was the Kennedys and Roberts himself, not his insurer, who had the most to gain by preserving as much of the malpractice policy as possible -- the Kennedys, because it would make collecting any judgment they might obtain easier, and Roberts, because it would mean a greater margin before his own assets would be exposed to any judgment obtained by the Kennedys.
Indeed, given Boyko’s (legitimate) need (about which he presumably told the Kennedys upon his eleventh-hour retention) to acquaint himself with the file for trial, it is particularly unsound for the Kennedy litigants now, in this appeal, to suggest that a continuance would have caused Roberts’ insurer only minimal extra defense costs. Any time a trial is continued (at least if continued from the relative eve of trial), able counsel are going to have to get back up to speed for when the big day actually comes again. And that’s particularly true in a case involving an underlying case as detailed as the litigation involving the Carson Hotel. As Judge Banks explained at the December 16 hearing, noting his own days as a trial attorney, “the trial attorney has to go back and take that file and put it back together and review a lot of materials. [¶] At least that’s what I did because I wanted to keep my malpractice carrier happy and not go in blind when a case had been continued a couple of months and just not do any more re-preparation.” Given the prejudice to the defense inherent in the continuance (a palpable reduction in insurance protection) weighed against the prejudice to the plaintiff (retained very late, and many months after the trial judge’s admonition to the Kennedys to immediately seek new counsel), the prejudice to the defense would readily be the more prevailing consideration.
Both Oliveros v. County of Los Angeles (2004) 120 Cal.App.4th 1389 [calendar conflict], and Hernandez v. Superior Court (2004) 115 Cal.App.4th 1242 [unspecified illness resulted in attorney’s death within the same month client learned of it], which form the centerpiece of the Kennedy litigants’ legal case on the continuance issue, are readily distinguishable. Each case involved the attorney on the case from the inception, and there was nothing that suggested any game playing on the part of either the attorney (in Oliveros) or the litigant (as in Hernandez). Indeed, in Hernandez the client began looking for a new lawyer the very day he learned of his attorney’s death. (Hernandez, supra, 115 Cal.App.4th at p. 1247.)
Lerma v. County of Orange (2004) 120 Cal.App.4th 709, which also features prominently in the opening brief, is even less apt. There, a plaintiff’s counsel was served with a summary judgment motion on the very day he was admitted to a hospital for cancer surgery; he wasn’t even aware of the motion until the day after he was released from the hospital, leaving him a mere two days to prepare the opposition to the motion. Yet he heroically put together a “perfunctory” opposition and a “gut-wrenching” request for a continuance in those two days. (Id. at p. 711.)
The heroism and diligence shown in Lerma contrasts rather embarrassingly with this case. Irenemarie and John Kennedy had, in their possession since September, the “dispositive” motion in limine to preclude evidence of damages, yet nothing was done about that motion from September until the trial began in early January.
IV. M&B’s Continuance and Substitution Requests
This court’s opinion in Pham v. Nguyen (1997) 54 Cal.App.4th 11 can hardly be styled as one evidencing a judicial distaste for continuance requests. There, to counterbalance the rhetoric of some earlier, and harder-line opinions (in particular, County of San Bernardino v. Doria Mining & Engineering Corp. (1977) 72 Cal.App.3d 776), this court registered a “small plea in favor of professional courtesy in the conduct of litigation.” (Pham, supra, 54 Cal.App.4th at p. 13.) We noted that “Continuances play a legitimate role in keeping a law practice manageable” and reminded judges -- including ourselves -- that “Judges should occasionally remember the exigencies of actual practice. It is easy for members of the bench to lecture the bar about the need to manage their calendars. The real world is somewhat harsher.” (Id. at pp. 15-16.)
Even so, we affirmed a trial court’s decision not to grant a continuance, made on the day of trial, by a litigant who had just learned her expert witness was unavailable. (See Pham, supra, 54 Cal.App.4th at p. 14.) We recognized that the matter was a “close call,” but resolved that closeness (as we were required to do) in favor of the trial court, noting both (1) that the expert had not been subpoenaed, and (2) that the facts in the declaration supporting the continuance did not disclose an “‘unavoidable’ emergency.” Indeed, we noted that the facts were consistent with the possibilities that the expert may not have wanted “to put his professional reputation” behind the client’s case, or that maybe “a fee dispute” had been “brewing for several months.” (Id. at p. 18.)
Pham applies a fortiori here. M&B went almost four years without even contacting expert Wood, and refused to pay him anything. Nor was Wood subpoenaed. By the same token, the judge’s decision to reject the last-ditch effort to substitute attorney Boyko in for attorney Wood, based on Wood’s “unavailability” as an expert, was eminently reasonable. Indeed, one wonders: At what point in January or early February, while the trial was still going,had Boyko recovered a sufficient amount of his sight to be able to digest the mountain of documents that were necessary to render an expert legal opinion in the case? Wood himself had not been able to read all the necessary documents, and he had far more time, and the expectation of actually being an expert witness and being paid for it. (There is no claim here that the trial judge’s ruling excluding the alternative of reading excerpts of Wood’s deposition was in any way in error.)
V. An Unfair Calumny
In their briefs, Irenemarie and John Kennedy compare Judge Banks in this case to the trial judge in Haluck v. Ricoh Electronics, Inc. (2007) 151 Cal.App.4th 994. That is hitting below the belt. The comparison is outrageously unfair to Judge Banks. We need not detail all of the numerous instances of judicial misconduct enumerated in Haluck, but if there is a single theme in Haluck, it is that the trial judge’s various comments and actions in front of the jury conveyed to the jury a distinct partiality in favor of the defense. That partiality may have influenced the jury to return a defense verdict when a fair trial might have yielded a plaintiff’s verdict. (See id. at pp. 1008-1009.)
Here, the Kennedys harp on Judge Banks’ comments to Sailor Kennedy at the May 6 hearing as somehow evidencing a disdain for pro per litigants. Not so. In context, Judge Banks displayed no “disdain” of pro per litigants at all. He patiently allowed Irenemarie, John and Sailor Kennedy to have their complete say, and in fact went out of his way to draw out of them anything that might have given him grounds to decide in their favor. (Sailor did all the talking and only managed to underscore the degree to which the relationship with Sayre had broken down.) Judge Banks patiently allowed attorney Millican to have his say. In context, it is reasonably clear that Judge Banks made his “opinion” comment simply in order to keep Sailor Kennedy “on topic.” He didn’t want to hear Sailor’s legal opinions about a possible motion for relief under section 473 of the Code of Civil Procedure. Indeed he would not have wanted to hear anybody’s legal opinions about such a possible motion. If the Kennedy litigants were indeed going to bring a motion for relief under section 473 in the future, Judge Banks would properly have wanted to decide the merits of such motion as presented to him then, and not have been influenced by Sailor Kennedy’s legal argument in its favor made in at an inappropriate time and in an inappropriate context. In short, the appellants’ opening brief unfairly pillories Judge Banks for doing the right thing.
VI. Disposition
The judgment is affirmed. Respondents are to recover their costs on appeal.
WE CONCUR: ARONSON, J., FYBEL, J.
“The court: I know what you’re saying. I’m not sure you do.
“Sailor Kennedy: If you grant his motion, you’ve sealed the fate of this case because you’re going to have a case within a case.
“The court: Oh, I already have that. That’s what this case [a legal malpractice action] is about.
“Sailor Kennedy: No. You’re going to have a case within a case within a case. That’s what’s going to happen.” (Italics added.)
“[Defense counsel]: Basically. The bottom line is that as individuals, they have no cognizable claims.”