Opinion
B222790 Los Angeles County Super. Ct. No. BC344811
09-23-2011
JAMES R. LaROSE et al., Plaintiffs, Cross-defendants and Respondents, v. PATRICIA ROSENTHAL, Defendant, Cross-complainant and Appellant.
Jay S. Bloom for Defendant, Cross-complainant and Appellant. Mahoney & Soll, Paul M. Mahoney and Richard A. Soll for Plaintiffs, Cross-defendants and Respondents.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
APPEAL from a judgment of the Superior Court of Los Angeles County. Jane L. Johnson, Judge. Affirmed.
Jay S. Bloom for Defendant, Cross-complainant and Appellant.
Mahoney & Soll, Paul M. Mahoney and Richard A. Soll for Plaintiffs, Cross-defendants and Respondents.
Appellant Patricia Rosenthal contends the trial court erred in dismissing her cross-complaint after she failed to appear for trial. During the course of the litigation, Rosenthal had requested numerous continuances of trial based on her ill health and destitute financial circumstances, and in May 2009, the trial court issued an order to show cause to dismiss (OSC) if Rosenthal failed to appear at the continued trial date of November 30, 2009. Rosenthal contends her "truly exceptional circumstances" required the granting of her motion to continue trial made on the eve of the continued trial date, and that the trial court abused its discretion in failing to fairly consider her position. We affirm.
FACTUAL BACKGROUND AND PROCEDURAL HSTORY
On September 1, 2002, the LaRoses lent Rosenthal $30,000 to cure Rosenthal's default on a first deed of trust on property Rosenthal owned located on Beverly Glen Circle; in exchange for the loan, the LaRoses took a second trust deed on the property. The LaRoses' note was due on October 1, 2003, but Rosenthal failed to make the $1,045.83 monthly payments on the LaRoses' note.
In July 2004, Rosenthal was again in default under the first trust deed, and needed an additional $14,700 to pay off the default. In exchange for Rosenthal's agreement to deliver to them a grant deed to the property, keep up the payments, and list the property for sale, the LaRoses agreed to loan Rosenthal $14,700. However, Rosenthal failed to make the payments on her obligations, and failed to list the property for sale. As a result, the LaRoses recorded their grant deed on May 17, 2005. The LaRoses began making the payments to the first trust deed holder, and on December 20, 2005, instituted this action against Rosenthal for quiet title, trespass, preliminary and permanent injunction, and for ejectment.
Rosenthal's operative second amended cross-complaint, filed July 18, 2007, alleged claims for breach of oral contract, fraud, cancellation of instrument, and declaratory relief. Rosenthal alleged that she and the LaRoses had been friends for over 25 years, and in August 2004, the LaRoses asked her to sign the grant deed with the understanding that the grant deed was to be used as security only and would not be recorded unless Rosenthal died before repayment of the loan. At first Rosenthal refused to sign the grant deed, but discovered in December 2004 that unless she signed the grant deed, the LaRoses would not make the $14,700 loan to her. The LaRoses told Rosenthal that the grant deed would be returned to her upon payment of the entire debt of approximately $45,000, plus interest, and based upon those statements, Rosenthal executed the grant deed.
A bifurcated trial on the complaint was held on November 27, 2007. The court concluded that the grant deed was intended by the parties to create a security interest, and found for Rosenthal. Judgment on the complaint was entered on April 10, 2009.
On May 14, 2009, the court held the final status conference on Rosenthal's cross-complaint, which was set for trial May 18, 2009. At the hearing, Rosenthal's counsel moved to continue the trial based on a diagnosis of breast cancer. Counsel presented a letter from a Dr. Amy Kirby, a physician in Michigan (where Rosenthal had another residence and was currently living) dated March 26, 2009, in which Dr. Kirby stated Rosenthal required "'further testing and treatment'" regarding her condition, and that "'after the tests are complete,'" Dr. Kirby would determine the course of treatment. In response to Rosenthal's request, the court remarked that "Didn't we continue this trial for this amount of time because [Rosenthal] told us she was going to have to have her treatment, and she has yet to have any treatment?" Rosenthal's attorney argued that her Michigan property was in foreclosure and she had no health insurance, and she was in a fragile mental state.
The court stated that it had expressed its concern for Rosenthal and her health, but stated: "I am not surprised that at this stage there is going to be another delay. I'm not surprised by that one bit. And there were delays from the outset of this case." The court pointed out that the case had been pending nearly four years, with the trial date originally set for April 2008, and had been set for trial six times. The court stated that it required a declaration under penalty of perjury that the doctor was treating Rosenthal and an estimate of the length of treatment, and that the letter was insufficient. Nonetheless, the court granted a continuance, but advised Rosenthal's counsel that if she did not appear for trial, the court would issue an OSC. The parties agreed on a trial date of November 30, 2009, and the court set a final status conference for November 20, 2009.
On November 19, 2009, Rosenthal moved ex parte for a continuance of the trial date based on the fact that she had been in the care of an oncologist since August 2009 for advanced breast cancer. Rosenthal's doctor Dr. Cheryl A. Wesen provided a letter dated November 19, 2009 stating that Rosenthal had "locally advanced right breast cancer, diagnosed in April 2008, which has continued to progress and now erodes through the skin. She requires urgent surgery for the treatment of this breast cancer but[] was noted to have markedly elevated blood pressure which would need to be addressed prior to surgical intervention. [¶] [Rosenthal] is not medically or physically able to travel. I plan to operate as soon as she is cleared medically for surgery." In addition, Rosenthal's home in Michigan had been foreclosed on, and she was due to be evicted on November 30, 2009. Rosenthal argued that the LaRoses had since foreclosed on the Beverly Glen property and sold it to a third party, and would suffer no prejudice from a continuance. At the hearing, the court pointed out this was the seventh request for a continuance. The court noted that Rosenthal had been given a five-month continuance to have her surgery, but had not done so. The court denied the request.
On November 30, 2009, the date set for trial, Rosenthal filed the same November 19, 2009 letter from Dr. Cheryl A. Wesen. She also submitted a photograph of her own right breast purporting to show her condition. At the hearing, the court stated: "I want to hear a little bit more [about Rosenthal's condition], first, because this is a pretty unusual situation; but when we continued it, we continued it for her to have whatever procedure she needed to have. That was going to happen during that period of time. [¶] I said, 'I'll give you as much time as you need. How much time do you need?' [¶] 'December will do it.' [¶] That's when we set this. [¶] And I said, 'I'm setting an OSC re dismissal for the date of trial.'" The court noted that "[Rosenthal has] basically told us she's had cancer since the outset of the case, in 2005." The court again pointed out the lack of a declaration under penalty of perjury from Rosenthal's doctor.
The court continued, "[a]nd now [Rosenthal] comes in the day before we're going to start trial, . . . with a picture that has some arrows and a signature of a doctor, I guess, but there isn't anything under penalty of perjury." The LaRoses told the court that Rosenthal had been in sufficiently good health to assist in moving her furniture out of the Beverly Glen house when the LaRoses sold it to a third party, and had been belligerent to persons who had come to the house to purchase items for sale. The court responded, "If someone has breast cancer that is so severe that they have to have a surgery right away, it doesn't get better [on its own], allowing [Rosenthal] to move furniture and allowing her to come to California and justifying a continuance again and again. . . . That's what's most disturbing. [¶] . . . [Rosenthal] came to California, moved furniture, confronted individuals who were selling the furniture [so] that they were unable to remove [it], and confront[ed] people who were coming to repair the house to prepare it for sale.
The LaRoses had given Rosenthal permission to remove her property from the Beverly Glen house prior to the auction of personal property and other items left in the house that was scheduled for June 26, 2009. According to Todd LaRose, the respondents' son, on June 25, 2009, when she arrived at the house, Rosenthal inventoried the items in the house and went into a tirade. Rosenthal hired several people to help her move her items, and was active in assisting in the move. On June 26, 2009, Rosenthal arrived in the morning and confronted the woman who was to conduct the auction, and approached Virginia LaRose in a hostile manner. Todd LaRose called the police. During the time he observed her, Todd LaRose did not find Rosenthal to be sick or infirm. On the contrary, "[s]he was very energetic and I even witnessed her help carry an extremely heavy conference tabletop from the second floor to the first floor."
. . . She also engaged in behavior that made it necessary at some point in time to have the police come and remove her. [¶] So this is someone who is fully capable of coming and sitting through a rather brief trial to testify in her own behalf." Further, the court stated, "even if I were to consider this letter from the doctor, which I cannot consider . . . because it's not admissible; but if I were to consider it, it's exactly the same as what was said eight months ago: That she has high blood pressure and that she needs her operation. [¶] . . . [¶] And there is nothing in the letter of the doctor that indicates there's any end date whatsoever or that any arrangements have been made to have this procedure done; or that she's doing anything to control her high blood pressure so that she could have the procedure."
The court determined to proceed with the trial, and stated that Rosenthal could make arrangements to appear by remote transmission. The court set voir dire for the next day, December 1, 2009, at 1:30 p.m.
On December 1, 2009, Rosenthal's counsel advised the court that Rosenthal refused to appear by remote transmission from Michigan, and he had filed another ex parte request for a continuance of trial. Rosenthal's ex parte papers included a declaration from Rosenthal and from her mother, in which they testified the picture submitted had been of Rosenthal's breast. Rosenthal claimed she had gone to the Beverly Glen house in June 2009 because the LaRoses had told her she had until June 25, 2009 to empty the house of her possessions. Rosenthal's counsel advised the court he was not ready to proceed with trial because his client had told him "in no uncertain terms that she cannot appear," to which the court responded that it had no other choice than to dismiss the case.
In its order dismissing the action, the court cited the following facts: the cross-complaint had been filed well over two years prior to the date set for trial; the trial had previously been continued numerous times; the continuances prejudiced the LaRose's ability to obtain loans due to the pendency of the lawsuit; Rosenthal's need for surgery had been known for several years; in May 2009, Rosenthal had been offered the option of videoconferencing to appear and testify from Michigan, but she declined; in May 2009, the court set an OSC for failure to prosecute if Rosenthal did not appear for the November 30, 2009, trial; and in June 2009, Rosenthal came to California and spent time "camped out" in front of her foreclosed property in order to remove her furniture, leading the court to believe her protestations in May 2009 about her illness and inability to appear were untrue.
Rosenthal's motion for new trial was denied on January 25, 2010.
DISCUSSION
"To ensure the prompt disposition of civil cases, the dates assigned for a trial are firm. All parties and their counsel must regard the date set for trial as certain." (Cal. Rules of Court, rule 3.1332(a); see also rule 3.1332(c).) The trial court must "[c]ommence trials on the date scheduled" and "[a]dopt and utilize a firm, consistent policy against continuances, to the maximum extent possible and reasonable, in all stages of the litigation." (Gov. Code, § 68607, subds. (f), (g).) As strong public policy favors prompt disposition of civil litigation, and there is "no policy . . . of indulgence or liberality in favor of parties seeking continuances." (County of San Bernardino v. Doria Mining & Engineering Corp. (1977) 72 Cal.App.3d 776, 781.)
Continuances are granted only on an affirmative showing of good cause requiring a continuance. (Cal. Rules of Court, rule 3.1332(c).) A party seeking a continuance of the date set for trial, "must make the request for a continuance by a noticed motion or an ex parte application under the rules in chapter 4 of this division, with supporting declarations. The party must make the motion or application as soon as reasonably practical once the necessity for the continuance is discovered." (Cal. Rules of Court, rule 3.1332(b).) Grounds for a continuance include "unavailability of a party because of death, illness, or other excusable circumstances." (Cal. Rules of Court, rule 3.1332(c)(2).) We review the trial court's decision to deny a continuance under the deferential abuse of discretion standard. (In re Marriage of Falcone & Fyke (2008) 164 Cal.App.4th 814, 823; Futrell v. Payday California, Inc. (2010) 190 Cal.App.4th 1419, 1438 [denial of continuance will be upheld unless "court's decision was beyond the bounds of reason"].)
"The unavoidable absence of a party does not necessarily compel the court to grant a continuance. In such instance the court should be governed by the course which seems most likely to accomplish substantial justice, and it may take into consideration the legal sufficiency of the showing in support of the motion and the good faith of the moving party." (Whalen v. Superior Court (1960) 184 Cal.App.2d 598, 600; Kalmus v. Kalmus (1952) 103 Cal.App.2d 405, 413.) In Kalmus, a marital dissolution action, the appellant wife sought a continuance of trial on the grounds of disabling illness, supported by an affidavit of her physician in Massachusetts, where she was residing. Her physician stated the appellant was unable to travel to California for trial. (Kalmus, at pp. 412-413.) However, evidence submitted in opposition to her motion showed that approximately two weeks before trial, she took a taxi for a considerable distance from one hotel to another, where she attended lunch with a large group; upon leaving the luncheon she went shopping, returned to her hotel, obtained her baggage, proceeded to a railway station and departed on a journey. Another witness observed the appellant engaging in numerous physical activities several weeks before trial, and stated that she walked "'briskly, vigorously, firmly and rapidly.'" Another witness stated that approximately a week before trial, the appellant attended the horse races in Boston, Massachusetts, that she remained through six of the races and returned therefrom via a streetcar and subway. Further, while the appellant was in attendance at the races, she "walked fast and shouldered her way through the large crowed without any trouble." She was also seen in Brookline, Massachusetts, riding in an automobile, shopping in various stores, and carrying various parcels. (Id. at p. 413.) Kalmus concluded that "Under the[se] facts, . . . it is manifest that in denying [appellant] a continuance upon the ground of disabling illness, and holding that [appellant] was physically able to come to California for the trial and to participate therein, there was no abuse of discretion." (Id. at p. 414.)
Similarly here, we find no abuse of discretion. Although Rosenthal claimed in May 2009 that she required immediate surgery, she was well enough to travel to California from Michigan the next month to retrieve her property from the foreclosed Beverly Glen residence and was observed at that time lifting heavy furniture. Further, the trial court had explicitly advised her in May 2009 that the continuance was granted to give her time to undergo the needed surgery. Nonetheless, Rosenthal did not undergo surgery, and waited until the eve of trial to request another continuance. Yet when the court denied this request and called the case for trial, she again requested a continuance. The court offered to permit her to appear by remote transmission, but Rosenthal declined. In addition, Rosenthal, even after the court warned her that her doctor's statements were inadmissible, refused to provide admissible evidence to justify her absence from trial. Under these circumstances, where the court has sought at every instance to accommodate Rosenthal's numerous requests for a continuance, yet she has refused to even attempt to remedy the situation preventing her from appearing at trial or provide proper evidence, the court was well within the bounds of reason in dismissing her cross-complaint.
DISPOSITION
The judgment is affirmed. Respondents are to recover their costs on appeal.
NOT TO BE PUBLISHED.
JOHNSON, J. We concur:
MALLANO, P. J.
ROTHSCHILD, J.