Filed 4/21/20 Osadche v. Giangregorio CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

SAM OSADCHE,

Plaintiff, Cross-defendant and
Appellant,

v.

KIM GIANGREGORIO,

Defendant, Cross-complainant and
Respondent.

G056074

(Super. Ct. No. 30-2016-00866531)

O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, Peter J. Wilson, Judge. Affirmed.

Duran Law Office and Jack Duran, Jr., for Plaintiff, Cross defendant and Appellant.

Hammers and Stephen G. Hammers for Defendant, Cross complainant and Respondent.

* * *

INTRODUCTION

The sole issue in this case is whether the trial court erred by denying a request to continue the trial and reopen discovery. Neither a transcript nor a settled statement of the hearing on the request has been presented on appeal. In light of the grounds for trial continuances and the factors to be considered in ruling on requests for continuances, as set forth in California Rules of Court, rule 3.1332, we conclude the trial court did not err. Therefore, we affirm.

BACKGROUND AND PROCEDURAL HISTORY

In November 2015, Sam Osadche and Kim Giangregorio signed a written work proposal prepared by Osadche to dig exploratory holes and conduct a soils analysis to determine the cause of water intrusion on Giangregorio’s property. A controversy arose regarding Osadche’s performance of the work.

Giangregorio paid Osadche’s invoices in a total amount of $12,200. She refused to pay the final invoice, claiming the work had not been performed. Osadche provided a notice of default to Giangregorio and recorded a mechanic’s lien against the property, claiming $32,658 plus interest at the rate of 24 percent.

Giangregorio originally filed a case in small claims court against Osadche. Osadche filed an action in superior court for damages due to breach of contract, breach of the implied covenant of good faith and fair dealing, and foreclosure on the mechanic’s lien. Giangregorio dismissed her small claims case without prejudice and filed a cross complaint to Osadche’s action, alleging breach of contract, fraud, negligent misrepresentation, negligence, and requesting reformation of the contract. At a case management conference in December 2016, the court set a trial date for August 14, 2017.

On July 31, 2017, Christian Woods, counsel for Osadche, filed an ex parte application to continue the trial and an ex parte application to reopen discovery. The basis for both applications was Woods’s late substitution into the case, the need to depose Giangregorio, and the need to locate a third-party witness. Giangregorio opposed the applications on the grounds she had been available for deposition since the case had been filed but a notice of deposition had never been served, the third-party witness had been identified by Osadche in interrogatories, and that party’s new address in Texas had been provided to Osadche by Giangregorio in discovery responses several months earlier. The trial court set the matters for a motion hearing on the morning of the first day of trial. On August 8, 2017, Woods substituted out of the case, with Osadche’s consent, before the court heard the motions.

The trial began August 14, 2017, with Osadche appearing in propria persona. The court denied the motion to continue the trial in an order reading: “The Court having fully considered the arguments of all parties, both written and oral, as well as the evidence presented, now rules as follows: [¶] The motion to Reopen Discovery is denied. [¶] The motion to Continue Trial is denied.” No court reporter was present at this hearing, and no reporter’s transcript exists for it. Osadche, as appellant herein, did not seek to prepare or use a settled statement in lieu of a reporter’s transcript of the hearing. (Cal. Rules of Court, rule 8.137(b)(1).)

Attorney Richard Higbie substituted in as Osadche’s counsel when the trial got underway the following morning. No further continuances were requested. After a two-day bench trial, judgment was entered in favor of Giangregorio on the complaint and the cross-complaint. The court issued a detailed statement of decision. Giangregorio’s motion for attorney fees and costs was granted, and the court entered a modified judgment. Osadche timely filed a notice of appeal.

DISCUSSION

“‘The decision to grant or deny a continuance is committed to the sound discretion of the trial court. [Citation.] The trial court’s exercise of that discretion will be upheld if it is based on a reasoned judgment and complies with legal principles and policies appropriate to the case before the court. [Citation.] A reviewing court may not disturb the exercise of discretion by a trial court in the absence of a clear abuse thereof appearing in the record.’” (Thurman v. Bayshore Transit Management, Inc. (2012) 203 Cal.App.4th 1112, 1126.) “The burden rests on the complaining party to demonstrate from the record that such an abuse has occurred.” (Forthmann v. Boyer (2002) 97 Cal.App.4th 977, 985.)

In the absence of a reporter’s transcript or settled statement of the hearing on the motion to continue the trial, Osadche can only prevail on appeal if he can demonstrate that an abuse of discretion occurred as a matter of law. This he cannot do.

“[T]he dates assigned for a trial are firm.” (Cal. Rules of Court, rule 3.1332(a).) “[C]ontinuances of trials are disfavored.” (Id., rule 3.1332(c).) Of the grounds for continuance set forth in the Rules of Court, Osadche relied on two: “The unavailability of an essential lay or expert witness because of death, illness, or other excusable circumstances” (id., rule 3.1332(c)(1)); and “[t]he substitution of trial counsel, but only where there is an affirmative showing that the substitution is required in the interests of justice” (id., rule 3.1332(c)(4)).

The third party witness Osadche’s counsel wanted to locate was not unavailable due to excusable circumstances. Osadche identified this witness—Paul Zublionis—in his own discovery responses. Giangregorio admitted she had received a written statement from Zublionis, and she provided a Texas address for him in her discovery responses, served in April 2017. Osadche’s contention that he only became aware of the need to locate Zublionis when Zublionis’s written statement was used at Osadche’s deposition on July 10, 2017 does not constitute an excusable circumstance, and thus is not good cause for a continuance.

Osadche also failed to show that the interests of justice required a continuance due to the substitution of counsel. The continuance was requested because the current attorney of record, Woods, was new to the case. Woods substituted in more than one month before the trial date. His declaration fails to explain why he was unable to get up to speed on the case over the course of that time.

The motion to continue was not based on Woods’s substitution out of the case, or Higbie’s substitution into the case on the day set for trial. Because there is no transcript of the hearing on the motion to continue, we have no way of knowing whether Woods’s substitution out of the case was raised as a new ground for the continuance.

Osadche contends he was denied due process by the trial court’s denial of the motion to continue; however, none of the specific matters of which he complains is supported by the record. Osadche first contends that Higbie, who agreed to represent Osadche at trial the night before the trial began, “abandoned all of the claims in Mr. Osadche’s complaint . . . and instead focused on an unpled quantum meruit theory.” In fact, the trial court correctly ruled as a matter of law that the contract on which Osadche sued was void, but allowed him to present evidence of quantum meruit.

Osadche also contends Higbie’s opening statement was “very brief” compared to Giangregorio’s counsel’s opening statement, due to his lack of time to prepare. Neither opening statement was very long (two pages versus four pages in the reporter’s transcript), and both dealt primarily with the topic of quantum meruit, which had just been added to the case, placing both counsel on the same essential footing in terms of argument and presentation of evidence.

Finally, Osadche contends that he was denied due process because “the unopposed motions in limine filed against Mr. Osadche by Ms. Giangregorio’s counsel were granted.” Woods was still representing Osadche when the motions in limine were filed; the motions were filed four days after Woods filed the ex parte application asking for a continuance so he could prepare for trial. Woods did not file written opposition to the motions in limine while still representing Osadche, but Higbie did orally oppose the motions. Osadche has failed to show any denial of due process due to the court’s denial of the motion to continue the trial.

The other ground for the motion to continue, which is not based in the California Rules of Court, is the failure to notice the deposition of Giangregorio before the discovery cut off date. Osadche provides no explanation why the deposition of the only other party was not noticed for almost one year, while Osadche was represented by counsel or acting in propria persona. Although Osadche contends that his failure to depose Giangregorio prevented him from cross examining her at trial, Higbie called Giangregorio as a witness in Osadche’s case in chief and then cross examined her in connection with her cross claim. Based on this record, the responsibility for the failure to depose Giangregorio rests squarely on Osadche.

In his appellate brief, Osadche cites several of the factors to be considered by the trial court in ruling on a motion to continue the trial. (Cal. Rules of Court, rule 3.1332(d).) (Notably, Osadche did not cite any of these factors in the motion itself.) The request for a continuance was filed two weeks before the scheduled trial date. (Id., rule 3.1332(d)(1).) No previous extensions had been granted. (Id., rule 3.1332(d)(2).) Osadche claims he only requested a short 30 day continuance of the trial date; the motion for continuance actually asked for a 75 day continuance. (Id., rule 3.1332(d)(3).) The alternative means available to address the problems Osadche faced were to obtain new counsel or have Woods prepare for trial. (Id., rule 3.1332(d)(4).) While Osadche contends that no one would suffer prejudice if a continuance were granted, Giangregorio’s opposition to the motion for a continuance stated the contrary; indeed, the existence of a lien against her property meant that delays in resolving the matter would prejudice Giangregorio. (Id., rule 3.1332(d)(5).) The case was not entitled to preferential trial setting. (Id., rule 3.1332(d)(6).) We are unaware of the trial court’s calendar and the impact of granting a continuance on other trials. (Id., rule 3.1332(d)(7).) Counsel did not claim he was involved in another trial, and the parties did not stipulate to a continuance. (Id., rule 3.1332(d)(8), (9).) While Osadche claimed the continuance would be in the interests of justice, the only stated ground for the request was to allow further time to conduct discovery that had not been previously requested. (Id., rule 3.1332(d)(10).) Finally, Giangregorio’s opposition to the motion to continue explained that the case was “immensely simple,” and Osadche’s actions (including the request to continue) were intended to make the case difficult and expensive for Giangregorio to litigate. (Id., rule 3.1332(d)(11).)

Osadche’s appellate brief repeatedly states the trial court’s order “summarily” denied the motion for continuance, lacked any analysis, was arbitrary, was a “single sentence denial,” failed to exercise discretion, and failed to weigh the relevant factors or equities of the parties. Because Osadche failed to provide a reporter’s transcript or settled statement of the hearing on the motion to continue the trial, we reject his interpretations of the court’s order.

Osadche relies heavily on Vann v. Shilleh (1975) 54 Cal.App.3d 192, 194 (Vann), in which the appellate court reversed a judgment against the defendants due to the trial court’s denial of the defendants’ motion to continue the trial. Counsel for the defendants, an individual and a corporation, substituted out as counsel of record on a Friday before the Monday set for trial because “[the] defendants were dilatory in ‘withdrawing from the agreement’ that both counsel had worked out to settle the case.” (Id. at p. 195.) Counsel appeared when the matter was called for trial and requested a continuance to allow the defendants to obtain a new attorney. (Ibid.) The trial court denied the request based on its “‘policy of no continuance.’” (Ibid.) The appellate court concluded the trial court’s action constituted an abuse of discretion because it “was peremptory and based solely on a policy against continuances, without considering whether the case before it justified a departure from the salutary policy. Defendant was entitled to the exercise of an informed discretion; the record does not evidence any attempt to exercise any discretion.” (Id. at p. 199.)

Notably, Vann distinguishes several cases in which a continuance was denied that are closer to the facts of the present case. (See, e.g., Estate of Dargie (1939) 33 Cal.App.2d 148, 158 [new counsel had “a general knowledge of the matter before the court”]; Flynn v. Fink (1923) 60 Cal.App. 670, 673 [“Parties litigant have no absolute right to insist upon a change of counsel at the last moment before the time set for the commencement of the trial, where such change of counsel requires a continuance in order that the case may be properly prepared for trial”].) Higbie represented Osadche at his deposition and at the mandatory settlement conference in the case. Further, on July 18, 2017, Woods and Higbie went together to Giangregorio’s home. Woods claimed that Higbie was showing him “what a seawall was in relation to what is currently involved in this case.” We can reasonably infer that Higbie had at least a general knowledge of the case before substituting in on the day of trial. Woods’s last minute substitution out of the case, after he had filed a request to continue the trial so that he could get up to speed on the case, did not require the court to grant the request for a continuance.

Further, Vann predates California Rules of Court, rule 3.1332 (and its predecessor rule), and thus did not consider the presumption against trial continuances, the grounds for requesting a continuance, or the other factors to be considered in ruling on a motion for continuance.

DISPOSITION

The judgment is affirmed. Respondent to recover costs.

FYBEL, J.

WE CONCUR:

ARONSON, ACTING P. J.

THOMPSON, J.