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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

SIRA CRUZ, an Individual; PLAZA 

LATINA RC, INC., a Washington 

Corporation; and MGD PAINTING 

CORPORATION, a Washington 

Corporation,

Respondents,

v.

GILBER FRANCISCO ROJO, an 

individual; PLAZA LATINA GR 

CORPORATION, a Washington 

Corporation; ALDRIN LUCIO 

ROJO, an individual; NORTH 

SEATTLE DRYWALL 

CORPORATION, a Washington 

Corporation; and DOES I-IV,

unknown parties,

Appellants.

 No. 82404-0-I

 DIVISION ONE

 UNPUBLISHED OPINION

SMITH, J. — Gilber Francisco Rojo, Plaza Latina GR Corporation, Aldrin 

Lucio Rojo, and North Seattle Drywall Corporation (collectively Rojo) appeal the 

denial of their motion for a continuance before a summary judgment hearing. 

Because the trial court did not abuse its discretion by denying the motion after 

two years of Rojo’s non-participation in the action, we affirm.

FACTS

In May 2018, Sira Cruz, Plaza Latina RC Incorporated, and MGD Painting 

Corporation (collectively Cruz) sued Gilber Francisco Rojo and Plaza Latina GR 
No. 82404-0-I/2

2

Corporation, alleging that Rojo had breached his fiduciary duties and duty of 

care, had tortiously interfered with Plaza Latina RC’s business expectancy, and 

had engaged in civil conspiracy and unfair competition. In July, Cruz amended 

the complaint, naming additional defendants; adding more claims for tortious 

interference, breach of contract, defamation, and conversion; and requesting 

declaratory relief and damages. In August 2018, Rojo filed an answer, 

affirmative defenses, and counterclaims.

In January 2019, the court granted Rojo’s motion to continue trial. In 

June, Rojo’s attorney withdrew as counsel. In August, the court granted Cruz’s 

motion to compel discovery responses from Rojo, finding that Rojo had not 

responded to any of Cruz’s interrogatories or requests for production from April of 

that year. On October 16, 2019, Cruz moved to continue trial because Rojo had 

still not responded to any of Cruz’s discovery requests, and the court granted the 

motion. In May 2020, the court continued trial to October 2020 due to restrictions 

related to COVID-19.1

By September 24, 2020, Rojo had still not responded in any way to the 

April 2019 interrogatories and requests for production. The court found that 

Rojo’s violation was willful and caused substantial prejudice to Cruz, and 

accordingly sanctioned Rojo by striking his answer, affirmative defenses, and 

counterclaim. In October 2020, Rojo failed to appear for a bench trial, and at 

 1 COVID-19 is the World Health Organization’s official name for 

“coronavirus disease 2019,” a severe, highly contagious respiratory illness that 

quickly spread throughout the world after being discovered in December 2019.
No. 82404-0-I/3

3

Cruz’s request, the court granted a continuance to January 25, 2021. On 

December 2, 2020, Cruz moved for summary judgment. 

At the hearing on January 25, 2021, a new attorney, Matthew Heyert, filed 

a notice of limited appearance for Rojo solely to represent him in a motion to 

continue trial. Through Heyert, Rojo filed a motion to continue trial to allow time 

to retain new counsel, explaining the delay primarily by reference to Rojo’s 

depression and anxiety in the wake of the COVID-19 pandemic. The court 

granted a short continuance to February 8 to obtain an interpreter, and set a due 

date of February 2 for Rojo’s response to the summary judgment motion. Rojo 

did not file a response.

On February 8, Rojo appeared at the summary judgment hearing with 

Heyert and a new attorney, William Frick, whom Rojo had just retained to 

represent him in the case starting after the continuance hearing. Heyert renewed 

the request for a 60-day continuance. The court denied the motion, finding that 

Rojo had failed to establish good cause and that it would be prejudicial to Cruz to 

continue the hearing any longer. Frick withdrew as counsel because he was not 

yet prepared to argue the summary judgment motion. The parties then went 

forward with the summary judgment hearing, with Rojo representing himself. The 

court granted summary judgment to Cruz, and Rojo appeals.

ANALYSIS

Rojo contends that the court abused its discretion by denying his motion to 

continue the hearing. We disagree.

A court may continue a trial for good cause, and may continue a summary 
No. 82404-0-I/4

4

judgment hearing to permit a party to obtain essential affidavits or other 

evidence. CR 40(d), 56(f).

2 The court may consider several factors in deciding a 

motion for a continuance, including

the necessity of reasonably prompt disposition of the litigation; the 

needs of the moving party; the possible prejudice to the adverse 

party; the prior history of the litigation, including prior continuances 

granted the moving party; any conditions imposed in the 

continuances previously granted; and any other matters that have a 

material bearing upon the exercise of the discretion vested in the 

court. 

Balandzich v. Demeroto, 10 Wn. App. 718, 720, 519 P.2d 994 (1974). The 

court’s primary consideration in deciding the motion should be justice. Coggle v. 

Snow, 56 Wn. App. 499, 508, 784 P.2d 554 (1990). Allowing new counsel time 

to prepare can be an appropriate reason for a continuance, especially where the 

party would otherwise “be penalized for the . . . dilatory conduct” of their first 

attorney. Coggle, 56 Wn. App. at 508. “In general, a trial court’s decision 

granting or denying a continuance of trial lies with the sound discretion of the 

court, and will not be disturbed on appeal absent a showing that the trial court 

failed to exercise its discretion or manifestly abused its discretion.” City of 

Tacoma v. Bishop, 82 Wn. App. 850, 861, 920 P.2d 214 (1996). The court 

abuses its discretion if its discretion is “exercised on untenable grounds or for 

untenable reasons, considering the purposes of the trial court’s discretion.” 

Coggle, 56 Wn. App. at 507.

 2 Furthermore, under the King County Superior Court Local Civil Rules

(KCLCR), a continuance should not be granted after the final date to change the 

trial date “except under extraordinary circumstances where there is no alternative 

means of preventing a substantial injustice.” KCLCR 40(e)(2). 
No. 82404-0-I/5

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Here, the court appropriately weighed the facts in denying Rojo’s motion 

for a continuance. The court considered the need to resolve a case that had 

been going on for two and a half years and found prejudice to Cruz, who had to 

“keep coming back, keep paying her attorneys,” and had an expert ready to 

testify. The court also noted that there was not a clear showing that more time 

would be particularly useful to Rojo, given that his answer had been stricken and 

he had missed the deadline to identify any witnesses or exhibits.

3 The court 

noted that when the case was continued two weeks prior, “we were pretty 

clear . . . that this was likely going to proceed today.” The court appropriately 

considered the circumstances of the COVID-19 pandemic, noting that it 

“appreciate[d] that we have been living through extraordinary times,” but 

ultimately found that the pandemic did not justify the ongoing dramatic lack of 

participation on Rojo’s part, especially given that Rojo’s first attorney withdrew in 

2019, “long before COVID,” and that Rojo “didn’t get a lawyer, just stopped 

participating altogether for over a year.” The court appropriately weighed the 

relevant factors and considered the interests of justice, not just for Rojo but also 

 3 Rojo submitted no affidavits discussing the need to acquire evidence 

essential to his defense, as provided for in CR 56(f), presumably because he had 

missed the discovery cutoff anyway. 
No. 82404-0-I/6

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for Cruz, and ultimately found that there was no good cause for a continuance. 

The court did not abuse its discretion by denying the motion.

We affirm.

WE CONCUR: