Filed 6/5/14 Lewis v. Am-Cal Services CA1/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 continuanc e 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 Ci vil Procedure section 631.8. Because we
conclude the trial court abused its discreti on in denying the continuance and erred in granting judgment with prejudice, we vaca te the judgment and remand for trial.
I. BACKGROUND Lewis, acting in pro. per., filed suit ag ainst defendants Am-Cal Services, Inc., Glenn Oribello, Timothy Hu ssey, and Green Island Ente rprises 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 a ttorney 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 to ld the court the attorn eys he had contacted2 about assuming the representati on told him they would not ap pear unless the trial date was vacated. The court responded, “I don’t see that happening, qui te frankly,” noting the trial date had been set in February and co mmenting, “it doesn’t look like, to me, sir, you’re going to be ready to proceed to tria l.” 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 tr ial as scheduled, on July 20, 2012. On July 20, Lewis apparen tly 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 th e 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, opene d the hearing by arguing the trial court retained jurisdiction, notwith standing the notice of appeal , because the ruling on the motion was not an appealable order. The trial court agreed. Dioguard i told the court he
had received no communication from Lewis to ex plain 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, s ection] 581.” Dioguardi explained the present dispute followed an earlier laws uit, as a result of which Le wis 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 defe ndants 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 pres ent claims, was properly exec uted. 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 presumpti on that a trustee’s sale had been regularly and properly conducted. Because Lewis ha d presented no evidence to rebut this presumption, counsel argued, his clients were entitled to ju dgment under Code of Civil3 Procedure section 631.8. Notwithstanding counsels’ presentations, no testimony was taken, and no documentary evidence was admitted. The court granted the requested judgm ent under Code of Civil Procedure section 631.8, explaining only, “it’s clear [Lew is] has failed to appear. . . . And I would note that this lawsuit was origin ally 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 execute d 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 c ontinuances 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 affirm ative showing of good cause requiring the continuance.” 1 (Cal. Rules of Court, rule 3.1332(c).) We re view 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 c onstitutes 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 re tained 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 unavailab ility of trial counsel because of death, illness, or other excusable circumstances” and “[ a] significant, unanticipated ch ange in the status of the case as a result of which the case is not re ady for trial.” (Cal. Rules of Court, rule 3.1332(c)(3), (7).) In add ition to the showing of good ca use, 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 th e courtroom and its calendar and must have discretion to deny a request for a continuan ce when there is no go od 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 th e 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 co unsel 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 continuanc es, for example, and
there was no contention the withdrawal of couns el 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 mere ly concerned that a voluntary dismissal by Lewis would avoid a judgment with res judicata e ffect. 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 no t 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 c ontinuance was procedurally improper under California Rules of Court, rule 3.1332(b ), having been presente d 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 obj ection had been raised in the trial court, Lewis would have had the opportunity to brin g a timely and procedurally proper ex parte5 motion under the rule. Further, defendants ha ve shown no prejudice from Lewis’s failure to comply with the pr ocedural requirements. Accordingl y, 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 ju dgment to be legally supportable. If a plaintiff does not appear for trial, the matte r 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 Pr ocedure 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 rebu ttal in the event the mo tion is not granted, may move for a judgment. The court as trie r of the facts shall weigh the evidence and may render a judgment in favor of the moving pa rty, 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 cour t may consider all evidence received, provided, ho wever, that the party against wh om the motion for judgment has been made shall have had an op portunity to present additional evidence . . . .” (Code Civ. Proc., § 631.8, subd. (a).) Th e language plainly anticipates that any judgment rendered will be on the merits, taking into consider ation 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 sect ion 631.8] is availabl e only after the party against whom the motion is made has presente d his or her evidence. . . . the trial court must decide questions of cred ibility, 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 c ourt 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 appr opriate, at a minimum, a dismissal without prejudice under Code of Civ il 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 a nd 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 c onference report, in violation of a local rule. Terminating sanctions are not mandatory unde r the local rules, and defendants failed to request them. It is mere sp eculation 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 defe ndants cite no authority for their contention. Defendants finally argue th ere was an evidentiary basis for the trial
court to decide the case on the merits. Be cause 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 Ci vil Procedure section 581 might have been affirmed, the trial court did not exercise it s discretion under section 581, and we are unwilling to substitute our judgment for that of th e trial court. Further, in light of the trial court’s error in denying Lewis a continuanc e to find new counsel, we conclude the appropriate appellate remedy is to remand the case for a trial.7 III. DISPOSITION The judgment of the trial court is vacat ed, 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 Superi or Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.