Filed 9/29/23 Planz Pinder Enterprises v. Wright CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication 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

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

PLANZ PINDER ENTERPRISES, INC.,

Plaintiff and Appellant,

v.

JACK E. WRIGHT et al.,

Defendants and Respondents.

F084404

(Super. Ct. No. BCV-19-100492)

OPINION

APPEAL from a judgment of the Superior Court of Kern County. Ralph W. 

Wyatt, Judge.

Law Office of Reshma Kamath and Reshma Kamath for Plaintiff and Appellant.

Chuck & Tsoong, Victoria J. Tsoong and Carley Mak Lee for Defendants and 

Respondents.

-ooOoo-
2.

INTRODUCTION

Plaintiff Planz Pinder Enterprises, Inc. appeals from a judgment of nonsuit under 

Code of Civil Procedure section 581c.1 Plaintiff’s principal, Pinder Singh, contended he 

became ill the week before trial, and the trial court denied plaintiff’s motion to continue 

the trial on the morning trial was set to begin. During a break in the proceedings, when 

plaintiff’s counsel informed his client that the continuance had not been granted, plaintiff 

reportedly discharged its counsel, and a signed substitution of counsel form was filed. 

Without counsel, plaintiff—a corporate entity—could not proceed with trial; defendants 

Jack and Andrea Wright moved for nonsuit, which the trial court granted. Plaintiff 

subsequently filed a motion for a new trial, which was denied. Plaintiff appeals the 

judgment of nonsuit and the trial court’s rulings on the continuance motion and on the 

motion for a new trial. We affirm.

FACTUAL BACKGROUND

The underlying dispute relates to a piece of agricultural land that was purchased 

by Randeep Dhillon and Kamalpreet Sidhu in January 2006 from Ramiro and Emerita 

Minero and encumbered by a deed of trust. In June 2014, Dhillon, Sidhu and Waterland 

Bti LLC leased the property to plaintiff. Then, in 2016, the Mineros foreclosed on the 

deed of trust and sold the land to defendants in 2017. Based on the lease, plaintiff filed 

this suit against defendants in February 2019, alleging trespass to chattel, conversion, 

trespass to land, and intentional interference with economic relations, and the case was 

assigned to Judge Thomas Clark.

Plaintiff was originally represented by Michael Peterson. Peterson filed a motion 

to withdraw as counsel in the fall of 2019, which was granted at the same time 

1 All further statutory references are to the Code of Civil Procedure unless indicated 

otherwise.
3.

defendants’ demurrer to the first amended complaint was sustained. Plaintiff was given 

60 days to file an amended complaint to allow time for plaintiff to find new counsel.

On October 21, 2019, defendants filed motions to compel discovery from plaintiff, 

and on December 4, 2019, defendants filed a supplemental brief complaining that 

plaintiff had not yet retained new counsel and requested the trial court issue an order 

compelling plaintiff to respond to the outstanding discovery requests and for sanctions.

A hearing on defendants’ pending discovery motions was held on December 10, 

2019, where plaintiff’s principal, Pinder Singh, appeared with a Punjabi interpreter, but 

without counsel. The court observed Singh had submitted a note requesting a 30-day 

continuance and indicating he had retained an attorney to represent plaintiff. The trial 

court refused to consider Singh’s letter, but continued defendants’ discovery motions to 

February 2020.

On January 27, 2020, defendants sought dismissal for plaintiff’s failure to file an 

amended complaint. On February 4, 2020, a hearing on the pending motions was held, 

and attorney William Edwards made an appearance on behalf of plaintiff. The court 

continued the hearing on all pending motions to March 5, 2020, and informed Edwards 

that if plaintiff failed to file an amended complaint and serve discovery responses by the 

next hearing date, the court would consider granting defendants’ motion to dismiss.

At a hearing on March 5, 2020, Edwards informed the trial court the amended 

complaint had been filed that morning and plaintiff had complied with all outstanding 

discovery requests. The trial court found defendants’ pending discovery motions to be 

moot, ordered plaintiff to produce all documents by March 23, 2020, and set another case 

management conference for June 3, 2020.

In April 2020, defendants filed a demurrer to plaintiff’s second amended 

complaint. At a June 2020 hearing on the demurrer, the court noted no opposition had 

been filed by plaintiff, sustained the demurrer, and ordered plaintiff to file a third 
4.

amended complaint by June 19, 2020. When the third amended complaint was filed, 

defendants demurred again, but the demurrer was overruled.

At a case management conference in November 2020, the parties waived a jury 

trial, and a bench trial was set for September 7, 2021, before Judge Clark.

Plaintiff subsequently filed motions to compel further discovery, one of which was 

denied and the other was deemed moot at hearings held on August 3 and 4, 2021.

On August 17, 2021, plaintiff filed a motion to continue the September 7, 2021, 

trial and to extend the discovery deadlines; the motion did not relate to Singh’s health. 

Although declining to extend the discovery deadlines, the trial court continued the trial 

approximately six months to March 21, 2022, over defendants’ objections.

On October 6, 2021, plaintiff filed a motion to compel further discovery, which 

was granted, and the trial court ordered defendants to provide further responses. Plaintiff 

filed another motion to compel discovery in January 2022 to which defendants indicated 

supplemental discovery responses were served and the motion was moot. At a hearing on 

February 10, 2022, the court noted the discovery motion had been dropped and was moot.

On February 17, 2022, a minute order indicates plaintiff had again filed a motion 

to continue the trial and reopen discovery, which the trial court denied without prejudice. 

This motion was not related to Singh’s health. On March 4, 2022, the parties began filing 

trial documents, including motions in limine, opposition briefs thereto, and witness and 

exhibit lists. On March 10, 2022, plaintiff’s witness list was filed, but it did not identify 

Singh as a witness.

On Thursday, March 17, 2022, Judge Clark issued a ruling resetting the mandatory 

settlement conference to be held the next day before Judge J. Eric Bradshaw. The minute 

order noted the final case management conference and court trial would be held before 

Judge Ralph W. Wyatt on March 21, 2022.

Also on March 17, 2022, plaintiff filed a motion to continue the trial, which 

defendants opposed. The motion was made on the ground that Singh was ill, and 
5.

plaintiff’s counsel needed time to determine Singh’s condition and whether Singh was 

able to appear personally or by video appearance for the trial set for the following 

Monday. The motion explained that Singh’s family had contacted Edwards on March 14, 

2022, to tell him that Singh was not well enough to attend trial due to hospitalization for a 

heart attack or a stroke. Edwards represented that his office had not been able to 

understand the depth of Singh’s illness and diagnosis because of a language barrier with 

Singh’s family. At a hearing on Friday, March 18, 2022, before Judge Bradshaw, 

plaintiff was given until 2:00 p.m. that day to file any additional supplemental supporting 

paperwork, and defendants were given until 4:00 p.m. to file any supplemental 

opposition. A hearing on the motion was continued to the next court day, Monday, 

March 21—the first day of the scheduled bench trial.

At 1:23 p.m. on Friday, March 18, 2022, plaintiff filed a supporting declaration of 

Manpreet Singh, Pinder Singh’s son. Manpreet stated he had messaged Edwards’s office 

on Monday, March 14, 2022, that his father was sick, he could not walk or talk, and they 

were “‘just giving [sic] to hospital.’” He stated Singh was under the care of a 

cardiologist, whom he identified as “Dr. Baharm Khaxai.” Manpreet explained Singh 

had been exhibiting symptoms of chest pain beginning approximately six months earlier, 

and he had been experiencing shortness of breath that had been worsening over the prior 

year. In the last week, Manpreet stated he had rushed Singh to Mercy Southwest 

Hospital, where Singh was admitted. Manpreet was told that doctors believed Singh had 

experienced a heart attack or a stroke. Once Manpreet learned that information, he had 

contacted Edwards’s office.

Manpreet stated he did not have a complete diagnosis of Singh’s condition 

because he was still undergoing tests ordered by a cardiologist. Manpreet stated Singh 

was experiencing heart palpitations and dizziness when he stood, he had pain when he 

walked, swelling in his ankles, high blood pressure, and diabetes. Manpreet concluded 
6.

he did not know “how bad [his] father’s condition is, but all I am requesting is to 

continue trial until I know my father is safe to physically move around.”

Defendants filed a supplemental opposition arguing plaintiff had failed to show 

good cause for a continuance. Defendants argued Manpreet’s declaration indicated 

Singh’s symptoms had existed for six months to a year, but plaintiff had waited until now 

to bring a request to continue the trial based on a preexisting health condition. 

Defendants also argued this was plaintiff’s third request to continue the trial date, which 

defendants felt was intended to cause delay.

When the court reconvened on Monday, March 21, 2022, before Judge Wyatt, 

Edwards explained that while preparing for trial the week before, he had learned that 

Singh, the main witness for plaintiff’s case in chief was unavailable, and Edwards was 

unable to reach him. Singh’s family had indicated that Singh was hospitalized and may 

have suffered a heart attack or a stroke—this was not merely an issue of Singh having a 

preexisting cardiac condition. Edwards sought a 30-day continuance to allow Singh to be 

ready to give testimony.

Edwards also noted that although Singh had not been identified on plaintiff’s 

witness list, Singh was the cornerstone of plaintiff’s case. Singh had been inadvertently 

omitted from the witness list because Edwards considered him a party, but acknowledged 

Singh should have been added.

The trial court noted the absence of any medical documentation, and Edwards 

explained that Singh’s family was not letting him speak to Singh, and that Edwards had 

been instructed by the court at the Friday hearing that a declaration was needed from 

someone with firsthand knowledge of what happened to Singh.

The court pointed out Manpreet’s declaration did not indicate when Singh was 

admitted to the hospital and noted that hospitalization generally involves paperwork that 

could have been easily provided to Edwards. The court observed not much information 
7.

was needed, just “something that shows that he actually was at a medical facility.” 

Absent a statement from a physician, all they had were Manpreet’s lay statements.

The trial court concluded the documentation was inadequate to establish Singh’s 

medical unavailability, and no good cause for a continuance had been established. In 

light of the court’s ruling, Edwards asked to trail the matter so that he could contact his 

client and perhaps see if he could be available by video, and to contact plaintiff’s out-oftown witnesses. The court agreed to recess until 2:00 p.m. that afternoon, and Edwards 

indicated he would file an amended witness list.

When court reconvened at 2:00 p.m., Edwards explained that when he had reached 

out to Singh and Singh’s family, “[t]hey thought it was ludicrous that [he] was trying to 

get them to make their dad come to court for trial and Pinder Singh, on behalf of 

[plaintiff], fired [Edwards] on the spot. They signed a substitution of attorney. 

[Edwards] filed it with the Court.”

The court asked who was substituting into Edwards’s place because, as a 

corporation, plaintiff had to have a licensed attorney to represent it in court. Edwards 

stated he was “aware of that,” but “[t]hey don’t want me to do it.”

Defendants’ counsel argued a corporate plaintiff was presumed to know the law, 

and if it wanted to discharge Edwards, it should have done so in a manner that the law 

allows, which would be to have another attorney in Edwards’s place.

Edwards responded that “the Court is aware of what I’ve represented by way of 

declaration in terms of what—my former client, CEO, his health condition. Again, I told 

him what the Court said, the Court’s ruling. And their response was a visceral one where 

they blamed me for not getting the continuance and they refused to submit their father to 

a trial at this point in time. I told them the trial was going to go forward at 2 o’clock. 

They said, You’re out and they rushed me to prepare this sub and even instructed me not 

even to have any more dealings with this case. [¶] And as I mentioned in the beginning, 

I’m here out of the duty of candor to the Court and to the client—I mean, to opposing 
8.

counsel. I figured I’d come here and explain face-to-face what happened so the Court 

would be aware. But they were—on no uncertain terms did not want me to do anything 

further with this case. And I filed, you know, the appropriate documents.”

The court observed that plaintiff’s failure to have a licensed representative did not 

deprive the court of fundamental jurisdiction over the case, and that a court “should treat 

a corporation’s failure to appear through counsel as a defect that may be corrected on 

terms that are just. I’ve never been presented with any terms that might be just. I’m 

confronted with the fact that the attorney is no longer here to represent the corporation. I 

have no alternative at this point presented by the party plaintiff in this action.”

Defense counsel then moved for judgment of nonsuit under section 581c, which 

the court granted, and judgment was formally entered on March 28, 2022, in favor of 

defendants.

On April 26, 2022, after retaining new counsel, plaintiff filed a motion for a new 

trial under section 657 on the ground that Edwards’s misconduct, Singh’s illness, and the 

trial court’s failure to grant the continuance were irregularities in the proceedings under 

section 657, subdivision (1), and an accident or surprise within the meaning of 

section 657, subdivision (3).2

Attached to the motion was a letter from Dr. Khazai with a date of March 18, 

2022, affixed at the top. The letter explained that Singh had been having radiating chest 

pain for approximately six months, and shortness of breath for approximately one year. 

Singh complained of occasional palpitations, pain in his left calf, and swelling in his 

ankles; he denied any dizziness, his blood pressure was normal “today”; a treadmill 

stress test was to be ordered to rule out coronary artery disease. Singh indicated he had 

2 On our own motion, we ordered that the record on appeal be augmented with a copy of 

plaintiff’s motion for a new trial and the trial court’s May 27, 2022, ruling on that motion. These 

documents were identified in plaintiff’s designation of the record on appeal, but were omitted 

from the clerk’s transcript.
9.

no history of medications, his diabetes was not treated with medication, and he denied 

any past hospitalization. Singh was noted to be in no acute distress, his heart had a 

regular rhythm with no murmurers, and his lungs appeared clear bilaterally.

Dr. Khazai assessed Singh as having diabetes, chest pain on breathing, 

palpitations, shortness of breath, edema, and atherosclerosis of native arteries of 

extremities. The plan was to order various laboratory tests, including an

electrocardiogram, a treadmill test, a pulmonary function test, and a 24-hour holter 

monitor. The letter stated that due to the significance of Singh’s medical issues, he 

should keep his medical appointments to rule out any serious underlying conditions. 

Dr. Khazai indicated Singh was not advised to go out of the United States or travel until 

further notice after the testing was completed and that he was not fit for travel for six 

months. The letter indicated Singh needed assistance in making medical decisions 

because he did not have good insight into his condition, and he should limit his activities 

for the meantime. He was to follow up in two months to go over the test results to rule 

out various conditions.

Singh and his associate Dhillon, who had also retained Edwards on other matters, 

filed declarations in support of the motion for a new trial. Singh’s declaration stated that 

he speaks Punjabi, and he does not fluently speak English.3 Singh had COVID-19, 

severe heart ailments and cardiological issues. He indicated he was “in the hospital right 

now unable to move from [his] hospital bed.” He stated Edwards had failed to 

communicate with him effectively since Singh’s deposition; Edwards did not inform 

Singh of the date of the trial, and he did not prepare Singh sufficiently ahead of time; 

Singh had “no idea” why Edwards elected to withdraw as plaintiff’s counsel on 

March 21, 2022. According to Singh, Edwards informed Dhillon on March 14, 2022, 

that there was a trial and that he needed to prepare Singh. But Dhillon was in India at 

3 Singh’s declaration was submitted in English.
10.

that time, and Singh was “in the hospital inflicted with a severe bout of COVID-19 

virus.” Singh stated that Edwards therefore “caused us to miss the trial dates. He even 

substituted out of this case on the day of the trial. He did not request any kind of trial 

continuance.”

Defendants filed an opposition to the motion, a supporting declaration of counsel, 

and objections to Dhillon’s and Singh’s declarations. The motion for a new trial was 

heard on May 25, 2022, and the court denied the motion by minute order on May 27, 

2022. In denying the motion, the trial court sustained defendants’ objections to portions 

of Singh’s declaration and to all of Dhillon’s declaration. Plaintiff appealed, but presents 

no argument regarding these evidentiary rulings.

DISCUSSION

I. Issues on Appeal

On appeal, plaintiff challenges the trial court’s March 21, 2022, ruling denying a 

continuance of trial, the judgment of nonsuit filed on March 28, 2022, and the denial of 

plaintiff’s motion for a new trial. Defendants argue the notice of appeal pertains to and 

identifies only the judgment, and therefore the trial court’s rulings on plaintiff’s motions 

to continue the trial and for a new trial are not reviewable on appeal.

A ruling on a motion for a trial continuance is not ordinarily an appealable order. 

(See § 904.1.) However, the failure to grant the requested continuance is reviewable on 

appeal from the judgment. (Freeman v. Sullivant (2011) 192 Cal.App.4th 523, 527.) The 

same is true of the court’s denial of plaintiff’s motion for a new trial. (Walker v. Los 

Angeles County Metropolitan Transportation Authority (2005) 35 Cal.4th 15, 19 [an 

order denying a motion for a new trial is not independently appealable and may be 

reviewed only on appeal from the underlying judgment].) While the notice of appeal 

cites only the March 28, 2022, judgment, the relief sought by plaintiff in its brief includes 

the trial court’s denial of plaintiff’s motion to continue the trial and plaintiff’s motion for

a new trial.
11.

We have appellate jurisdiction to review the judgment and both the trial court’s 

denial of the motion to continue the trial and plaintiff’s motion for a new trial as part of 

the appeal from the judgment.

II. Motion to Continue the Trial

Plaintiff argues the trial court abused its discretion in failing to grant a continuance 

on March 21, 2022, in light of Singh’s medical condition.

A. Applicable Law

Continuances of trial in civil cases are disfavored, assigned trial dates are firm, 

and parties and their counsel must regard the trial date as certain. (Cal. Rules of Court, 

rule 3.1332(a), (c).)4 A party seeking a continuance must make the motion or application 

as soon as reasonably practical once the necessity for continuance is discovered. 

(Rule 3.1332(b).) Each request for a continuance must be considered on its own merits, 

and it can be granted only upon an affirmative showing of good cause requiring the 

continuance. (Id., (c).) Circumstances that may indicate good cause include, among 

other things, the unavailability of an essential lay or expert witness, a party, or trial 

counsel because of death, illness, or other excusable circumstance. (Id., (c)(1)–(3).)

In ruling on a motion for continuance, the court must consider all the facts and 

circumstances that are relevant to the determination, which may include the proximity of 

the trial date; whether there was any previous continuance, extension of time, or delay of 

trial due to any party; the length of the continuance requested; the availability of other 

means to address the problem that gave rise to the motion or application for a 

continuance; the prejudice that parties or witnesses will suffer as a result of the 

continuance; if the case is entitled to preferential trial setting, the reasons for that status 

and whether the need for a continuance outweighs the need to avoid delay; the court’s 

4 All further references to a rule are to the California Rules of Court unless indicated 

otherwise.
12.

calendar and the impact of the continuance on other pending trials; whether trial counsel 

is engaged in another trial; whether all parties have stipulated to a continuance; whether 

the interests of justice are best served by a continuance, by the trial of the matter, or by 

imposing conditions on the continuance; and any other fact or circumstance relevant to 

the fair determination of the motion or application. (Rule 3.1332(d)(1)–(11).)

“‘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, disapproved on another ground in ZB, N.A. v. Superior Court (2019) 8 

Cal.5th 175, 196, fn. 8, quoting Forthmann v. Boyer (2002) 97 Cal.App.4th 977, 984; see 

Oliveros v. County of Los Angeles (2004) 120 Cal.App.4th 1389, 1395.) Under this 

standard, if the facts presented merely afford an opportunity for a different opinion, the 

appellate court is not authorized to substitute its judgment for that of the trial court. 

(Dolan v. Buena Engineers, Inc. (1994) 24 Cal.App.4th 1500, 1504; People v. Diggs 

(2022) 80 Cal.App.5th 702, 709.)

B. Analysis

The trial court was required to ensure that any continuance of the trial was 

supported by an affirmative showing of good cause. (Rule 3.1332(c).) However, 

between March 14 and March 21, 2022, counsel was unable to determine from Singh’s 

family the precise nature of Singh’s health condition. Manpreet’s declaration, filed on 

March 18, 2022, was similarly devoid of essential details such as specifically when Singh 

was admitted to the hospital and whether he remained hospitalized. Manpreet stated he 

messaged plaintiff’s counsel on March 14, 2022, that he was just getting to the hospital 

with his father, but he also stated he had rushed his father to the hospital “[l]ast week.” 
13.

As the trial court pointed out at the hearing on March 21, 2022, substantiating that Singh 

was currently or had been hospitalized the week before would have been a matter of 

submitting any type of routine hospital admission documentation, but nothing had been 

included with the motion or Manpreet’s declaration. Not only did the trial court have no 

specific information about Singh’s health condition or whether he was hospitalized, there 

was no information about Singh’s prognosis or recovery time. In the exercise of 

discretion, we cannot say the trial court was obligated to continue the trial based solely on 

vague information Singh was unavailable for an unspecified amount of time due to an 

unknown health event that required uncorroborated hospitalization at some point.

Additionally, the timing of the motion—filed on Thursday, March 17, 2022, and 

heard on Monday March 21, 2022, the first day of the bench trial—posed a significant 

degree of prejudice to defendants in terms of costs and rescheduling uncertainty. Defense 

counsel represented that if the trial did not proceed on the date set, they were not 

available again for approximately three months; they had subpoenaed witnesses whose 

availability to appear on another date was uncertain; counsel had traveled from out of 

town; and defendants had cleared their schedule for the trial that week. Given the 

prejudice to defendants, their objection to stipulate to the continuance, the imminence of 

trial, defense counsel’s scheduling conflicts, which would require a months’ long delay, 

the court was justifiably concerned about verifying the nature of Singh’s health condition.

Although rule 3.1332 does not mandate medical documentation to support the 

unavailability of a party, witness or attorney due to medical illness, a trial court is not 

required to credit lay assertions about a witness’s unspecified medical condition and its 

effects on a person’s physical abilities. Nor does a party have an absolute right to be 

present at trial (such as a corporation through the presence of a principal), even where 

that party’s absence is due to illness. (Thorpe v. Thorpe (1946) 75 Cal.App.2d 605, 609.) 

In this case, there were only vague lay assertions that Singh was having health-related 

problems that may have been a heart attack or a stroke, that Singh had been hospitalized 
14.

at some point around March 14, 2022, and that his health issues precluded his appearance 

in court for an unknown period of time. Without some corroborating documentation, the 

trial court was entitled to conclude that Manpreet’s declaration, standing alone, was 

insufficient to establish Singh’s medical unavailability and good cause needed to 

continue the trial.

Plaintiff argues the exigencies of Singh’s health emergency made it impossible to 

supply any medical documentation at the time the request for a continuance was made, 

and, at a minimum, the trial court should have excused any need for medical 

documentation, or it should have granted plaintiff a short continuance to assemble any 

necessary corroboration. Yet, approximately a month later, when plaintiff filed a letter 

from Singh’s cardiologist dated March 18, 2022, that letter established only that Singh 

had a potential cardiac issue that required testing, he was to limit his activities, and there 

would be a follow-up consultation in a couple of months. It did not state Singh was 

hospitalized in March 2022, that he had a heart attack or a stroke at any point, including 

in or around the week of March 14, 2022, or that he was medically unable to participate 

in the trial personally or by video commencing on March 21, 2022. Moreover, Singh’s

declaration, signed on April 25, 2022, indicated that on March 14, 2022, he “was in the 

hospital inflicted with a severe bout of Covid-19 virus,” but no hospitalization for any 

reason was ever corroborated, and this assertion seems to conflict with Dr. Khazai’s 

March 18, 2022, letter. Thus, even with weeks of additional time, plaintiff was unable to 

present a cogent explanation of Singh’s medical issue or marshal sufficient corroborating 

documentation to support his unavailability in March 2022.

Plaintiff relies on Link v. Cater (1998) 60 Cal.App.4th 1315 (Link), where a trial 

court’s order denying a trial continuance and dismissing the case was reversed on appeal, 

but that case is distinguishable from the circumstances presented here. In Link, the 

plaintiff had scheduled medical appointments out of town for the same time as the trial. 

(Id. at p. 1318.) Originally, those appointments had been scheduled on dates that did not 
15.

conflict with the trial, but without consulting the parties, the trial court reset the trial date 

on its own motion with only a few days’ notice and created the conflict. (Id. at p. 1324.) 

Additionally, the trial court had based its determination in Link on mistakes of fact: it 

had mistakenly believed the “plaintiff had requested and received more continuances than 

was the case; it believed, without any documentation, that the [prior and current] 

continuances to receive medical treatment were not justified, and it believed mistakenly 

that after notice of the [new] trial date, [the] plaintiff deliberately had made travel 

arrangements and medical appointments out of state that would clearly be in conflict.” 

(Ibid.) Moreover, the plaintiff presented documentation on appeal of the legitimacy of 

his medical treatments and presumably would have filed such with the trial court if he 

had been given a reasonable opportunity to do so. (Id. at p. 1326.) On those facts, the 

appellate court reversed the trial court’s denial of a trial continuance and dismissal of the 

case as arbitrary. (Ibid.)

Here, the trial court did not make last-minute adjustments to the trial date that 

conflicted with the party’s schedules—the trial commencement date of March 21, 2022, 

had been set since August 2021, when a six-month continuance was granted upon 

plaintiff’s motion. Also different from Link, the trial court was not laboring under any 

misapprehension of the facts regarding the number of prior continuances plaintiff had 

sought or the bases for them, and there were no prior medical continuances requested. 

Further distinguishable from Link, plaintiff did not subsequently present any medical 

documentation that substantiated his unavailability on or around March 21, 2022. 

Dr. Khazai’s letter does not corroborate Manpreet’s declaration that Singh was ever 

hospitalized on or around the date of trial, nor does the letter establish that Singh was 

medically unable to be present for trial on March 21, 2022. Even on appeal, plaintiff 

articulates generalized assertions that Singh was hospitalized for a heart attack at some 

point around the trial date, but nothing corroborates such a health event or any 

hospitalization.
16.

Plaintiff argues that in denying the requested continuance, the trial court placed 

too much emphasis on efficiency and failed to account for the policy favoring a trial on 

the merits. (See Hernandez v. Superior Court (2004) 115 Cal.App.4th 1242, 1246–1247 

[when good cause for a continuance is shown, the policy favoring disposition on the 

merits outweighs the competing policy favoring judicial efficiency].) However, plaintiff 

had failed to establish good cause because nothing corroborated Singh’s hospitalization 

or illness. Even with due deference to the policy favoring merits determinations, the trial 

court was not required to delay the trial without an affirmative showing of good cause.

Plaintiff argues the trial court did not allow Singh to submit medical 

documentation or to be present through video, but that is not accurate. Plaintiff could 

have submitted medical documentation with its motion or with Manpreet’s declaration, 

but it also could have collected additional documentation after the ruling when the court 

stood in recess for several hours. Further, when the continuance was denied, Edwards 

indicated to the court that he would find out whether his client could appear by video, and 

the court did not indicate a refusal to entertain such a request. In other words, the trial 

court did not prevent Singh from appearing by video nor did it refuse to entertain 

additional medical documentation.

Moreover, the decision not to continue the trial did not prevent plaintiff from 

presenting its case. The trial was not set to resume until 2:00 p.m. that afternoon, 

opening arguments had not yet begun, plaintiff’s attorney was present, and plaintiff had 

other witnesses on its witness list besides Singh. In other words, the trial could have 

begun without Singh’s presence, and nothing precluded plaintiff from presenting 

additional medical documentation and renewing its motion for a continuance. Plaintiff 

argues it was unaware of the trial date because, had it known, Singh “would have made 

efforts to be present in court—even with his heart condition, would have sent his son to 

testify on his behalf, and/or sent any other slew of agents for [plaintiff] to the court on the 

day of trial.” But, Manpreet indicated in his declaration of March 18, 2022, that he 
17.

sought a trial continuance, which reflected communication between Edwards and plaintiff 

and/or plaintiff’s agents about the trial date.

On this record, we are unable to conclude the trial court’s ruling was an abuse of 

discretion. Based on plaintiff’s evidence, the trial court could reasonably conclude Singh 

had been suffering health issues for up to a year prior to the request, and therefore had 

ample time to prepare for contingencies should his health decline further or suddenly, 

including arranging for someone else to appear in court on plaintiff’s behalf should he 

become unable and assembling documentation from his health care provider. On the 

other hand, if Singh’s illness was a COVID-related emergency, that could have been 

readily documented. In other words, whether there were long-term issues or a sudden 

emergency, the trial court could have reasonably concluded these are routinely 

documented matters. Without some minimal corroboration that Singh was hospitalized 

or had suffered a sudden health complication or event precluding his appearance in court, 

the trial court did not abuse its discretion in concluding no affirmative showing of good 

cause had been made to warrant a continuance of the trial.

III. Judgment For Nonsuit

Plaintiff appeals the trial court’s order granting defendants’ motion for nonsuit 

under section 581c. Such an order constitutes a judgment of dismissal. (§ 581d.)

“‘“The standard of review for a nonsuit after [the] conclusion of the opening 

statement is well settled. Both the trial court in its initial decision and the appellate court 

on review of that decision must accept all facts asserted in the opening statement as true 

and must indulge every legitimate inference which may be drawn from those facts. 

[Citations.] A nonsuit at this early stage of the proceedings is disfavored. [Citation.] It 

can only be upheld on appeal if, after accepting all the asserted facts as true and indulging 

every legitimate inference in favor of [the] plaintiff, it can be said those facts and 

inferences lead inexorably to the conclusion [the] plaintiff cannot establish an essential 

element of its cause of action or has inadvertently established [i]ncontrovertible proof of 
18.

an affirmative defense.”’” (Carachure v. Scott (2021) 70 Cal.App.5th 16, 25.) An 

appellate court reviews a judgment of nonsuit de novo. (Ibid.)

Plaintiff argues the trial court erred by granting defendants’ motion for nonsuit 

before opening statements. Section 581c, subdivision (a), states, “Only after, and not 

before, the plaintiff has completed his or her opening statement, or after the presentation 

of his or her evidence in a trial by jury, the defendant, without waiving his or her right to 

offer evidence in the event the motion is not granted, may move for a judgment of 

nonsuit.”5 A nonsuit based solely on the opening statements is warranted only when the 

court can conclude from all the facts and inferences that there will be no evidence of 

sufficient substantiality to support a judgment in the plaintiff’s favor. (Willis v. Gordon 

(1978) 20 Cal.3d 629, 633; Carson v. Facilities Development Co. (1984) 36 Cal.3d 830, 

839.)

“[T]he granting of a nonsuit before opening statement is not reversible error if it is 

clear the plaintiff could not have prevailed even if he had presented his opening 

statement.” (Ritschel v. City of Fountain Valley (2006) 137 Cal.App.4th 107, 114 

(Ritschel); see Michel v. Moore & Associates, Inc. (2007) 156 Cal.App.4th 756, 760, fn. 4 

[it is not reversible error to grant a motion for nonsuit prematurely if the motion is 

“otherwise well-taken”].) In this case, because plaintiff discharged its counsel and did 

not appear for trial, it effectively declined the opportunity to present any evidence at all. 

Without presenting evidence, there was no possibility plaintiff could have prevailed. 

(See Evid. Code, § 500 [in a civil case, the plaintiff has the burden of proof with respect 

to all facts essential to its claims for relief].) Under these circumstances, we are unable to 

conclude it was reversible error for the trial court to grant the motion for nonsuit under 

section 581c before opening statements were given.

5 Section 581c has been interpreted to apply to a court trial as well as a jury trial. 

(Lingenfelter v. County of Fresno (2007) 154 Cal.App.4th 198, 208.)
19.

Plaintiff argues Ritschel is inapposite because there, although nonsuit was granted 

before opening statements, the plaintiff had already presented the bulk of its evidence 

during a prior phase of a bifurcated trial. (See Ritschel, supra, 137 Cal.App.4th at 

p. 114.) Here, plaintiff contends, Edwards’s last-minute abandonment precluded it from 

presenting its evidence, and wholly deprived plaintiff of a fair opportunity to do so. A 

judgment of nonsuit, plaintiff maintains, cannot be granted in a circumstance where a 

party is precluded from presenting an opening statement or testing its evidence at trial. 

Plaintiff notes that its exhibit and witness lists indicate it had substantial evidence to 

submit in support of its case had it been given the opportunity to do so.

Plaintiff, however, was given an opportunity to present its evidence at trial, but 

there is evidence showing it elected to discharge its counsel after it failed to obtain a trial 

continuance during the morning session. Lacking an attorney representative, the trial 

court was faced with a situation where no evidence could be presented by plaintiff at all. 

As evidenced by Manpreet’s declaration, Edwards had communicated with Singh’s 

family about the upcoming trial, but no alternative agent or principal of plaintiff was 

present on March 21, 2022, in the event the continuance was not granted. And, even 

without Singh, plaintiff had evidence to present and could have begun trial in his absence. 

Although we understand plaintiff’s assertion its principal had no knowledge of the 

substitution, the trial court was not presented with any evidence indicating Edwards had 

abandoned his client; instead, it had before it Edwards’s representations as an officer of 

the court that he had been discharged and a substitution form signed by Singh.

Tangentially, plaintiff also argues the trial court should have granted a continuance 

sua sponte after Edwards was substituted out rather than entertain a premature motion for 

nonsuit. Again, when the court granted defendants’ motion for nonsuit, all the trial court 

had before it was plaintiff’s apparent election to discharge its counsel, and, in the absence 

of any agent or principal present on behalf of plaintiff to inform the court about the 

situation or request any type of relief, it was not the trial court’s obligation to continue 
20.

the trial on its own motion. (See Younger & Bradley, Cal. Motions (2023) Consensual 

Substitution of Counsel, § 17:10 [discussing “Hobson’s choice” presented to the trial 

court when a party substitutes its counsel on the eve of trial]; see generally § 284 

[attorney may be “changed at any time” upon consent of both client and attorney, filed 

with the clerk, or entered upon the minutes]; Filbin v. Fitzgerald (2012) 211 Cal.App.4th 

154, 169 [judicial approval not necessary where client and attorney consent to 

substitution].) Given the situation presented to the trial court, we cannot conclude the 

court abused its discretion by failing, sua sponte, to continue the trial rather than granting 

defendants’ motion for nonsuit.

IV. Motion For a New Trial

Plaintiff argues the trial court erred in denying plaintiff’s motion for a new trial 

based on Edwards’s misconduct and Singh’s illness, which plaintiff asserts constitute 

irregularities in the proceedings under section 657, subdivision (1) and/or accident or 

surprise under section 657, subdivision (3).

A. Legal Standards

A motion for a new trial must be based on statutory grounds. (Fomco, Inc. v. Joe 

Maggio, Inc. (1961) 55 Cal.2d 162, 166.) A trial court may vacate a verdict, in whole or 

in part, and grant a new trial for any of the grounds listed in section 657 “materially 

affecting the substantial rights of such party,” including, as relevant here, for “Irregularity 

in the proceedings of the court, jury or adverse party ... by which either party was 

prevented from having a fair trial” (id., subd. (1)); and “Accident or surprise, which 

ordinary prudence could not have guarded against” (id., subd. (3)).

“An ‘irregularity in the proceedings’ is a catchall phrase referring to any act that 

(1) violates the right of a party to a fair trial and (2) which a party ‘cannot fully present 

by exceptions taken during the progress of the trial, and which must therefore appear by 

affidavits.’” (Montoya v. Barragan (2013) 220 Cal.App.4th 1215, 1229–1230, quoting 

§ 657, subd. (1) & Gay v. Torrance (1904) 145 Cal. 144, 149.)
21.

“‘“Surprise” as a ground for a new trial denotes some condition or a situation in 

which a party to an action is unexpectedly placed to his detriment. The condition or 

situation must have been such that ordinary prudence on the part of the person claiming 

surprise could not have guarded against and prevented it. Such party must not have been 

negligent in the circumstances.’” (Hata v. Los Angeles County Harbor/UCLA Medical 

Center (1995) 31 Cal.App.4th 1791, 1806 (Hata), disapproved on another ground in 

Quigley v. Garden Valley Fire Protection Dist. (2019) 7 Cal.5th 798, 815, fn. 8.)

Section 658 provides that when an application for a new trial is made under 

section 657, subdivisions (1), (2), (3) or (4), it must be made on affidavits; otherwise it 

must be made on the minutes of the court. These are grounds on which an appellant 

could not necessarily interpose an objection during the trial, and thus affidavits or 

declarations are required to establish the grounds for the motion where it cannot be 

shown “on the minutes of the court” (§ 658). (See Gibbons v. Los Angeles Biltmore 

Hotel Co. (1963) 217 Cal.App.2d 782, 791 [irregularity in proceedings is intended to 

refer “‘to matters which [the] appellant cannot fully present by exceptions taken during 

the progress of the trial, and which must therefore appear by affidavits’”].)

The trial court’s denial of a motion for a new trial is reviewed for an abuse of 

discretion, and where a motion for a new trial on the ground of misconduct is denied, the 

appellate court reviews the entire record to make an independent determination whether 

any attorney misconduct was prejudicial. (City of Los Angeles v. Decker (1977) 18 

Cal.3d 860, 871–872 (Decker) [attorney misconduct in arguing to the jury].) In ruling on 

a new trial motion based on declarations, it is for the trial court to “assess credibility, and 

determine the facts. ‘“When an issue is tried on affidavits ... and where there is a 

substantial conflict in the facts stated, a determination of the controverted facts by the 

trial court will not be disturbed.”’ (Weathers v. Kaiser Foundation Hospitals (1971) 5 

Cal.3d 98, 108.)” (Fredrics v. Paige (1994) 29 Cal.App.4th 1642, 1647; see City of 

Pleasant Hill v. First Baptist Church (1969) 1 Cal.App.3d 384, 429 [“The question of the 
22.

weight and sufficiency of the affidavits and the credence to be given them was for the 

trial court.”].)

B. Analysis

1. Ineffective Assistance of Counsel and Malpractice Are Not 

Cognizable Grounds For A New Trial Under Section 657

Plaintiff’s motion for a new trial was based, in part, on the ineffective assistance it 

contended it received from Edwards, including that counsel misrepresented his 

background and experience; failed to effectively communicate with plaintiff; failed to ask 

plaintiff for medical evidence corroborating Singh’s illness; and failed to seek adequate 

discovery in the case.

This basis for a new trial is not cognizable either as an irregularity in the 

proceeding under section 657, subdivision (1), or as a surprise under section 657, 

subdivision (3). We express no opinion on the effectiveness of plaintiff’s counsel, but it 

is well established that the incompetence of a party’s own counsel in a civil case is not a 

basis for granting the party a new trial. (In re Marriage of Liu (1987) 197 Cal.App.3d 

143, 154–155 [discussing cases and concluding it is “clear that the negligence of trial 

counsel is not a ground upon which a new trial may be granted”]; Chevalier v. Dubin 

(1980) 104 Cal.App.3d 975, 978 [no authority permits “a ... court to grant a retrial to an 

unsuccessful litigant in a civil case ... on the grounds of incompetency of counsel”].)

Parties are entitled to due process of law in civil proceedings under the federal 

Constitution’s 14th Amendment and under article I, section 7, of the California 

Constitution. However, due process simply guarantees the right to appear by counsel 

retained at the party’s own expense, it does “not include the further requirement that 

competent representation be furnished by counsel in a civil action.” (Kim v. Orellana 

(1983) 145 Cal.App.3d 1024, 1027.) When a party retains an attorney to represent it, that 

attorney “has complete charge and supervision of the procedure that is to be adopted and 

pursued in the trial of an action; the manner of trial and like matters are within the sphere 
23.

of the attorney’s general authority, and as to those matters [its] client is bound by [the 

attorney’s] action.” (Ibid.) “‘If it appears that the attorney was negligent in the matter 

the client’s remedy is against [the attorney] personally. The trial judge and opposing 

counsel are justified in relying upon the apparent and presumptive authority of the 

attorney and in acting upon that basis.’” (Ibid.) “Thus, while an attorney’s asserted 

failure to exercise the requisite skill and care may give rise to a legal malpractice action 

grounded on breach of contract as well as tort [citation], it does not furnish a basis for the 

reversal of a judgment entered against the client because of such failure on the part of his 

attorney.” (Id. at p. 1028.)

Here, plaintiff selected its own private counsel to represent it in a civil case. Thus, 

plaintiff is not entitled to reversal on the ground that its chosen counsel was ineffective 

and/or negligent in providing representation to plaintiff.

2. Attorney Misconduct

Plaintiff asserts Edwards was not discharged, but rather abandoned plaintiff on the 

day of trial without any notice; plaintiff maintains it had not consented to the 

substitution—directly contrary to what Edwards represented to the court. Assuming 

without deciding these alleged actions constitute attorney misconduct, as opposed to 

negligence or malpractice, plaintiff does not establish the trial court abused its discretion 

by denying the motion for a new trial.

Attorney misconduct “implies a dishonest act or an attempt by an attorney to 

persuade the court or jury by the use of deceptive or reprehensible methods.” (People v. 

Gomez (1976) 63 Cal.App.3d 328, 338 [prosecutorial misconduct].) Attorney 

misconduct, as opposed to negligent or ineffective representation, may be an irregularity 

in the proceedings, which is grounds for a new trial. (Decker, supra, 18 Cal.3d at p. 870; 

McCoy v. Pacific Maritime Assn. (2013) 216 Cal.App.4th 283, 303.)

The party asserting attorney misconduct as a basis for a new trial must show 

(1) attorney misconduct occurred and (2) that the misconduct was prejudicial. (Garcia v. 
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ConMed Corp. (2012) 204 Cal.App.4th 144, 148.) On appeal, in assessing the prejudicial 

effect of attorney misconduct, the reviewing court makes “an independent determination 

as to whether the error was prejudicial.” (Decker, supra, 18 Cal.3d at p. 872.)

Attorney misconduct cited as a ground to support a new trial is often based on an 

attorney’s conduct evidenced on the record. (See, e.g., Jackson v. Park (2021) 66 

Cal.App.5th 1196, 1199 [defense counsel falsely argued to the jury excluded evidence 

did not exist and argued facts outside the record]; Martinez v. Department. of 

Transportation (2015) 238 Cal.App.4th 559, 561 [misconduct where defense counsel ran 

“roughshod” over opposing counsel and the rules of evidence; emphasized to the jury 

inflammatory and irrelevant matters concerning the plaintiff’s character and the financial 

hardship that would be visited on the defendant from a verdict for the plaintiff]; see also 

7 Witkin, Cal. Procedure (6th ed. 2021) Trial, § 226, pp. 205–206 [misconduct is 

generally used in connection with trials to mean the disregard of rules of evidence or 

procedure for the purpose and with the effect of prejudicing the adverse party’s claim or 

defense before the jury].)

Somewhat differently in Russell v. Dopp (1995) 36 Cal.App.4th 765, a new trial 

was required based on an irregularity in the proceedings caused by attorney misconduct 

when, just before the jury returned a plaintiffs’ verdict, it was discovered the defendants’ 

attorney was not authorized to practice law. (Id. at p. 770.) One defendant appealed, the 

judgment was vacated, and the case was remanded for a new trial. The reviewing court 

explained the unlicensed attorney acted against the best interest of his clients by 

representing them, and this type of misconduct was violative of the defendants’ right to a 

fair trial. (Id. at p. 780.) The grant of a new trial was necessary under these 

circumstances to “uphold the integrity of the judicial process.” (Ibid.)

Here, the evidence plaintiff provided to show Edwards’s alleged misconduct was 

Singh’s declaration. Thus, whether attorney misconduct occurred centered on issues of 

credibility. (Cf. Whitlock v. Foster Wheeler, LLC (2008) 160 Cal.App.4th 149, 160 
25.

[motion for new trial based on juror misconduct requires the court to determine from 

affidavits whether the facts establish misconduct].)

While the record does not contain any factual findings or statement of reasons for 

denying plaintiff’s motion, we are required to infer the trial court made all factual 

findings in support of the ruling on the motion. (Jie v. Liang Tai Knitwear Co. (2001) 89 

Cal.App.4th 654, 666–667.) In denying the motion, the trial court necessarily gave little

credit to Singh’s declaration, stating he did not know why Edwards filed the substitution

form, and Edwards did not “inform[] us/me that he will substitute out of this abovecaptioned matter on the day of the trial ....” These statements implied that Edwards 

unilaterally withdrew from the case without Singh’s consent, that he forged Singh’s 

signature on the substitution form or misrepresented to Singh the purpose of the form, 

and then misrepresented the facts to the court by stating he had been fired by plaintiff.

On review, we do not determine credibility, but instead accept the trial court’s 

credibility determinations and findings of fact if substantial evidence supports them. 

(Zirbes v. Stratton (1986) 187 Cal.App.3d 1407, 1412; American Express Centurion 

Bank v. Zara (2011) 199 Cal.App.4th 383, 387; see Betz v. Pankow (1993) 16 

Cal.App.4th 919, 923 [standard of review of judgment based on affidavits or declarations 

are the same as for a judgment following oral testimony—appellate court must accept 

trial court’s resolution of disputed facts when supported by substantial evidence].) Even 

absent explicit credibility determinations, “[w]e may not reweigh the trial court’s implicit 

credibility determination ....” (Christian Research Institute v. Alnor (2008) 165 

Cal.App.4th 1315, 1319.)

We note Singh’s declaration contained some unexplained inconsistencies and 

inaccuracies. For example, paragraph 23 of Singh’s declaration stated he was 

hospitalized with a severe case of COVID-19 on or around March 14, 2022, but 

Dr. Khazai’s letter dated March 18, 2022, did not indicate that Singh suffered from 

COVID-19, and Dr. Khazai noted expressly that Singh denied any past hospitalization. 
26.

Additionally, Singh’s declaration stated that Edwards “did not request any kind of trial 

continuance,” which, as reflected by the record, was unequivocally incorrect.

Further, Singh’s declaration was in direct conflict with Edwards’s statements, 

made in open court as an officer of the court, that he was fired as plaintiff’s counsel and 

instructed by his client to have no further involvement with the case. (See People v. 

Mroczko (1983) 35 Cal.3d 86, 112 [“‘“‘when [attorneys] address the judge solemnly 

upon a matter before the court, their declarations are virtually made under oath’”’”], 

disapproved on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22; see 

also Aceves v. Superior Court (1996) 51 Cal.App.4th 584, 594 [defense attorney’s 

representation to the court about conflict with client was sufficient to permit withdrawal 

of counsel]; see generally Bus. & Prof. Code, § 6068, subd. (d) [duty of an attorney never 

to mislead the judge or judicial officer by an artifice or false statement of fact or law].)

As we must defer to the trial court’s implicit credibility finding with respect to 

Singh’s declaration and Edwards’s statements, there is no basis to conclude the trial court 

erred in failing to find any irregularity or surprise based on attorney misconduct. (Lenk v. 

Total-Western, Inc. (2001) 89 Cal.App.4th 959, 968 [it is the province of the trier of fact 

to determine the credibility of a witness].)

Absent evidence compelling a finding of attorney misconduct, we have no reason 

to consider prejudice. (Wilson v. Kopp (1952) 114 Cal.App.2d 198, 205 [where motion 

for new trial is denied, the question is “whether, on the affidavits submitted, the trial 

court was compelled to grant the new trial, not whether the affidavits would have 

supported an order granting the new trial”].) The trial court did not err in denying the 

motion for a new trial based on attorney misconduct as either an irregularity in the 

proceedings or a surprise.

3. Singh’s Health Issues

Plaintiff also asserts Singh’s health issues constituted an irregularity in the 

proceeding or surprise within the meaning of section 657, subdivisions (1) and (3). An 
27.

irregularity in the proceedings includes “any order of the court or abuse of discretion by 

which either party was prevented from having a fair trial.” (Id., subd. (1).)

Even in light of Dr. Khazai’s letter submitted with plaintiff’s motion for a new 

trial, the letter did not show the trial court’s denial of a continuance due to Singh’s health 

issue was an irregularity in the proceedings that precluded plaintiff from having a fair 

trial. As already noted, Dr. Khazai’s letter did not establish Singh was medically unable 

to be present at the time of trial; it established Singh had been experiencing shortness of 

breath and chest pains for months, and his primary care physician had referred him to 

Dr. Khazai. Dr. Khazai indicated Singh would undergo testing for potential heart and 

pulmonary issues, and Singh should “limit [his] activities” until the results of testing were 

obtained and discussed at a follow up appointment in two months. The letter did not 

indicate Singh was unable to be present in court in March 2022, nor did it indicate that he 

had suffered a heart attack or that he had required hospitalization at any point. In other 

words, it did not undercut the trial court’s decision not to continue the trial based on 

Singh’s medical issues.

The same reasoning applies to the ground of surprise. Dr. Khazai’s letter does not 

show Singh was hospitalized at the time of trial as he claimed, and it does not establish 

Singh was medically prevented from being present at trial. (See Hata, supra, 31 

Cal.App.4th at p. 1806 [movant for new trial based on surprise must be able to show it 

could not prevent or guard against the surprise by ordinary prudence].)

In sum, the trial court did not abuse the broad discretion vested in it by denying 

the new trial motion. (Decker, supra, 18 Cal.3d at pp. 871–872.)
28.

DISPOSITION

The judgment of March 28, 2022, the court’s order denying a trial continuance on 

March 21, 2022, and the court’s order denying the motion for a new trial on May 27, 

2022, are affirmed. Defendants are entitled to costs on appeal. (Cal. Rules of Court, 

rule 8.278(a)(2).)

MEEHAN, J.

WE CONCUR:

LEVY, Acting P. J.

DeSANTOS, J.