Filed 6/5/14 Lewis v. Am-Cal Services CA1/1 

NOT TO BE PUBLISHED IN OFFICIAL REPORTS 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 This opinion has not been certified for publication 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 

FIRST APPELLATE DISTRICT 

DIVISION ONE 

ISIAH LEWIS, 

 Plaintiff and Appellant, 

v. 

AM-CAL SERVICES, INC., et al., 

 Defendants and Respondents. 

 A136266 

 (Solano County 

 Super. Ct. No. FCS036118) 

 After his attorney withdrew less than a month prior to the scheduled trial date, 

plaintiff Isiah Lewis was denied a continuance of the trial to find new counsel. On the 

date scheduled for trial, Lewis failed to appear, and the trial court entered judgment 

against him with prejudice under Code of Civil Procedure section 631.8. Because we 

conclude the trial court abused its discretion in denying the continuance and erred in 

granting judgment with prejudice, we vacate the judgment and remand for trial. 

I. BACKGROUND 

 Lewis, acting in pro. per., filed suit against defendants Am-Cal Services, Inc., 

Glenn Oribello, Timothy Hussey, and Green Island Enterprises on June 30, 2010, 

alleging improprieties in connection with a real estate foreclosure. By June 2011, Lewis 

was represented by counsel. On July 2, 2012, however, this attorney withdrew, and 

Lewis substituted as his own attorney. At the time, trial was scheduled for July 24, 2012. 

 On July 12, 2012, the parties appeared for a hearing on defendants’ motion to 

bifurcate the trial. Lewis explained to the court that his attorney had “resigned” and 

asked for time to find a new attorney. Lewis told the court the attorneys he had contacted 
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about assuming the representation told him they would not appear unless the trial date 

was vacated. The court responded, “I don’t see that happening, quite frankly,” noting the 

trial date had been set in February and commenting, “it doesn’t look like, to me, sir, 

you’re going to be ready to proceed to trial.” Defense counsel urged the court to leave 

the trial date intact. The court granted the motion to bifurcate and indicated the equitable 

portion of the case would be called for trial as scheduled, on July 20, 2012. 

 On July 20, Lewis apparently was seen at the courthouse by a court bailiff, but he 

was not present in court when the case was called for trial. The court confirmed the trial 

date, noting, “presumably [Lewis is] ready, if he was here earlier.” The day before trial, 

Lewis filed a notice of appeal of the ruling on the motion to bifurcate. 

 Lewis did not appear for trial on July 24. John Dioguardi, counsel for defendants 

Hussey and Green Island Enterprises, opened the hearing by arguing the trial court 

retained jurisdiction, notwithstanding the notice of appeal, because the ruling on the 

motion was not an appealable order. The trial court agreed. Dioguardi told the court he 

had received no communication from Lewis to explain his absence. He then moved for 

entry of judgment under Code of Civil Procedure section 631.8. Following an 

adjournment to allow the trial court to review defendants’ trial brief, Dioguardi asked for 

leave to make “a very brief opening statement on behalf of the defendants, for prejudice 

to attach under [Code of Civil Procedure, section] 581.” Dioguardi explained the present 

dispute followed an earlier lawsuit, as a result of which Lewis agreed to make payments 

on a promissory note secured by a deed of trust. Lewis complied for a few months, but 

then he stopped making payments, and defendants foreclosed on the real property 

securing the deed of trust. Dioguardi said he was prepared to prove the foreclosure sale, 

the foundation of Lewis’s present claims, was properly executed. He then renewed his 

request for judgment under section 631.8. 

 Counsel for defendants Oribello and Am-Cal Services, Inc. argued Civil Coode 

section 2924 established a rebuttable presumption that a trustee’s sale had been regularly 

and properly conducted. Because Lewis had presented no evidence to rebut this 

presumption, counsel argued, his clients were entitled to judgment under Code of Civil 
3

Procedure section 631.8. Notwithstanding counsels’ presentations, no testimony was 

taken, and no documentary evidence was admitted. 

 The court granted the requested judgment under Code of Civil Procedure 

section 631.8, explaining only, “it’s clear [Lewis] has failed to appear. . . . And I would 

note that this lawsuit was originally filed in—in pro per. So the fact that he is in pro per 

again is not of the Court’s doing, certainly.” A judgment reciting the events and theories 

discussed above was executed on July 30, 2012. 

II. DISCUSSION 

 Lewis contends the trial court erred in denying his oral request for a continuance 

and in entering judgment against him. 

 We agree that the trial court abused its discretion in denying Lewis’s request for a 

continuance of the trial date. Such continuances are governed by California Rules of 

Court, rule 3.1332, which states, “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.”1

 

(Cal. Rules of Court, rule 3.1332(c).) We review the trial court’s ruling on a motion for a 

continuance for abuse of discretion. (Thurman v. Bayshore Transit Management, Inc.

(2012) 203 Cal.App.4th 1112, 1126.) 

 The withdrawal or illness of counsel constitutes good cause for a continuance of 

the trial date. (Forrest v. Department of Corporations (2007) 150 Cal.App.4th 183, 199 

(Forrest), disapproved on other grounds in Shalant v. Girardi (2011) 51 Cal.4th 1164, 

1172 [withdrawal]; Hernandez v. Superior Court (2004) 115 Cal.App.4th 1242, 1246 

(Hernandez) [illness].) “ ‘[T]he constitutional due process guarantee does embrace’ the 

right of a civil litigant to be represented by retained counsel [citation]. But the right to 

 1

 Among the examples of good cause itemized by California Rules of Court, 

rule 3.1332 are “[t]he unavailability of trial counsel because of death, illness, or other 

excusable circumstances” and “[a] significant, unanticipated change in the status of the 

case as a result of which the case is not ready for trial.” (Cal. Rules of Court, 

rule 3.1332(c)(3), (7).) In addition to the showing of good cause, the rule lists a number 

of relevant circumstances to be considered. (Cal. Rules of Court, rule 3.1332(d).) 
4

representation and to a continuance to allow for that representation is not unlimited and 

must be considered and balanced with any possible detriment to other parties and the 

efficient administration of justice.” (Forrest, at p. 199, fn. omitted.) “ ‘ “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.” ’ ” (Oliveros v. County of Los Angeles (2004) 

120 Cal.App.4th 1389, 1396 (Oliveros).) 

 The trial court’s denial of a continuance to Lewis plainly had the effect of denying 

him the due process right of the assistance of counsel, since, as he told the court, he 

would be unable to retain counsel without a continuance. The trial court acknowledged 

as much when it noted Lewis was unlikely to be ready for trial on the scheduled date. 

The court’s ruling might nonetheless be upheld if other circumstances justified the denial 

of a continuance, but none did. There had been no prior continuances, for example, and 

there was no contention the withdrawal of counsel occurred for a tactical reason. (See, 

e.g., Forrest, supra, 150 Cal.App.4th at pp. 200–202.) Defendants cited no prejudice 

from a continuance; defense counsel was merely concerned that a voluntary dismissal by 

Lewis would avoid a judgment with res judicata effect. Similarly, the court articulated no 

circumstances justifying a denial, other than the trial date had been set several months 

prior. The court’s trial calendar alone is not a sufficient reason for denying a continuance 

in these circumstances. (Oliveros, supra, 120 Cal.App.4th at p. 1399; Hernandez, supra, 

115 Cal.App.4th at p. 1246.) 

 Defendants argue Lewis’s motion for a continuance was procedurally improper 

under California Rules of Court, rule 3.1332(b), having been presented orally and without 

documentary evidence. While we acknowledge the procedural impropriety of the 

motion, defendants did not object on this ground at the time, and the trial court elected to 

consider the motion on its merits. If the objection had been raised in the trial court, 

Lewis would have had the opportunity to bring a timely and procedurally proper ex parte 
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motion under the rule. Further, defendants have shown no prejudice from Lewis’s failure 

to comply with the procedural requirements. Accordingly, we find this objection to be 

forfeited. (E.g., Carlton v. Quint (2000) 77 Cal.App.4th 690, 697.) 

 Nor do we find the trial court’s entry of judgment to be legally supportable. If a 

plaintiff does not appear for trial, the matter may be dismissed without prejudice. (Code 

Civ. Proc., § 581, subd. (b)(5); Vernon v. Great Western Bank (1996) 51 Cal.App.4th 

1007, 1012–1013.) If asked to do so, the trial court presumably could have dismissed 

Lewis’s complaint without prejudice, and we would have reviewed that ruling for abuse 

of discretion. (Link v. Cater (1998) 60 Cal.App.4th 1315, 1321.) 

 Dismissal with prejudice under Code of Civil Procedure section 631.8, however, 

was error. The statute provides: “After a party has completed his presentation of 

evidence in a trial by the court, the other party, without waiving his right to offer 

evidence in support of his defense or in rebuttal in the event the motion is not granted, 

may move for a judgment. The court as trier of the facts shall weigh the evidence and 

may render a judgment in favor of the moving party, in which case the court shall make a 

statement of decision as provided in Sections 632 and 634, or may decline to render any 

judgment until the close of all the evidence. The court may consider all evidence 

received, provided, however, that the party against whom the motion for judgment has 

been made shall have had an opportunity to present additional evidence . . . .” (Code Civ. 

Proc., § 631.8, subd. (a).) The language plainly anticipates that any judgment rendered 

will be on the merits, taking into consideration the plaintiff’s evidence. Decisions 

confirm this reading. (E.g., Lingenfelter v. County of Fresno (2007) 154 Cal.App.4th 

198, 204 [“a motion for judgment [under section 631.8] is available only after the party 

against whom the motion is made has presented his or her evidence. . . . the trial court 

must decide questions of credibility, must weigh the evidence, and must make findings of 

fact”]; see similarly Ford v. Miller Meat Co. (1994) 28 Cal.App.4th 1196, 1200.) 

Because Lewis presented no evidence and defendants made only an offer of proof, it 

would have been impossible for the trial court to carry out its duty of weighing the 

evidence and making findings of fact, and it did not do so. 
6

 Citing Richaud v. Jennings (1993) 16 Cal.App.4th 81, defendants argue Lewis 

should be deemed to have abandoned his case, making appropriate, at a minimum, a 

dismissal without prejudice under Code of Civil Procedure section 581. The plaintiff in 

Richaud actually stipulated to a judgment in order to appeal an adverse evidentiary ruling 

that prevented him from proving his case. (Id. at p. 86.) Even if we were to accept the 

parallel between the two cases, Richaud would not prevent Lewis from appealing the 

denial of his motion for a continuance and seeking reversal of the judgment. 

 Defendants also argue Lewis would have been precluded from proving his case 

because he failed to file a trial management conference report, in violation of a local rule. 

Terminating sanctions are not mandatory under the local rules, and defendants failed to 

request them. It is mere speculation to contend Lewis would have been subject to such 

sanctions. 

 Defendants contend the trial court had inherent authority to dismiss the case with 

prejudice. Because Code of Civil Procedure section 581, subdivision (d), dictates a 

dismissal without prejudice in these circumstances, it is by no means clear the trial court 

had the inherent authority to dismiss with prejudice, and defendants cite no authority for 

their contention. Defendants finally argue there was an evidentiary basis for the trial 

court to decide the case on the merits. Because no evidence was actually presented at 

trial, the availability of evidence to support the decision is irrelevant. 

 The trial court’s entry of judgment with prejudice must be vacated. Although a 

dismissal without prejudice under Code of Civil Procedure section 581 might have been 

affirmed, the trial court did not exercise its discretion under section 581, and we are 

unwilling to substitute our judgment for that of the trial court. Further, in light of the trial 

court’s error in denying Lewis a continuance to find new counsel, we conclude the 

appropriate appellate remedy is to remand the case for a trial. 
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III. DISPOSITION 

 The judgment of the trial court is vacated, and the matter is remanded for further 

proceedings consistent with this decision. 

 _________________________ 

 Margulies, Acting P.J. 

We concur: 

_________________________ 

Dondero, J. 

_________________________ 

Becton, J.*

 *

 Judge of the Contra Costa County Superior Court, assigned by the Chief Justice 

pursuant to article VI, section 6 of the California Constitution.