Filed 3/25/16 Holmes v. Renzullo CA4/3




                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FOURTH APPELLATE DISTRICT

                                                 DIVISION THREE


SHAWN HOLMES,

     Plaintiff and Respondent,                                         G051312

         v.                                                            (Super. Ct. No. 30-2011-00487492)

DONNA RENZULLO,                                                        OPINION

     Defendant and Appellant.



                   Appeal from a judgment of the Superior Court of Orange County, Randall
J. Sherman, Judge. Affirmed.
                   Legally Craig Bankruptcy Service, Craig Jago Beauchamp; Law Offices of
Victor W. Luke and Victor W. Luke for Defendant and Appellant.
                   Menke & Menke, Dennis V. Menke and James D. Menke for Plaintiff and
Respondent.


                                             *               *               *
              Defendant Donna Renzullo appeals from a judgment on a breach of
contract claim in favor of plaintiff Shawn Holmes following a bench trial. The sole
question on appeal is whether, following six trial continuances, the trial court abused its
discretion in denying her seventh request to continue trial after it had already
commenced. The answer is no.


                     FACTS AND PROCEDURAL BACKGROUND


              According to the complaint, the parties had been friends for many years. In
2006 plaintiff agreed to purchase a residence and allow defendant to reside there in
exchange for defendant paying all costs. Defendant took possession of the property but
failed to make the payments or repay other loans made by plaintiff to defendant. Plaintiff
sued defendant for breach of contract and other causes of action.
              In 2010, defendant was diagnosed with breast cancer and underwent many
tests, surgeries, and radiation. Citing her illness, defendant obtained six continuances of
the trial, whether by motion, application or stipulation.
              Trial was scheduled to begin on Monday, November 17, 2014. The Friday
before, defendant filed an ex parte motion for another continuance because she was
“recovering from [another] surgery and cannot adequately appear” for trial. She
requested the “[t]rial be continued until early- to mid-February 2015.” The court denied
the motion without prejudice.
              Defendant did not appear on the date set for trial. Her recently retained
counsel informed the court defendant was “medically unavailable” because she had
undergone a biopsy on Friday, November 14, and could not leave the house until the
upcoming Friday at the earliest. Plaintiff’s counsel opposed another continuance because
his client was “ready to proceed,” he had “been waiting patiently for three and a half
years . . . to have [his] opportunity,” and the “trial date ha[d] been known for quite some

                                              2
time. [He] believe[d] that [defendant] may have rescheduled the biopsy date to try and
avoid this trial.” The trial court agreed because at the November 14 hearing on
defendant’s ex parte motion for a continuance, it “was a little suspicious of this medical
thing because of the timing and frequency of continu[ance] requests and plaintiff’s
counsel did admit that she was having a biopsy but then, again, there’s a question of
whether it was . . . on this date solely to be unavailable for trial, considering the fact that
this is a 2011 case, three and a half years ago.”
              Defense counsel proposed starting the trial that day “and trailing the matter
until she’s available to testify.” The court agreed, and plaintiff’s counsel stipulated to
starting the trial and then trying to “get as far as possible without the defendant being
here and then continue it” to the following Monday, which defense counsel confirmed
was the date he believed defendant would be available. Trial commenced and plaintiff’s
counsel closed his case that day.
              After a week-long recess, during which defendant did not bring any motion
or ex parte request to continue, the trial resumed on Monday, November 24. On that
date, defense counsel announced defendant was “medically unavailable” and presented a
letter from defendant’s doctor recommending she not be required to participate in trial for
90 days from November 18 because “a trial would be extremely detrimental to her
healing.” The letter was prepared by defense counsel and signed by the doctor, but not
under penalty of perjury.
              The court denied a further continuance because it appeared defendant had
intentionally chosen a date for her biopsy that would give her an excuse to not attend trial
and thereby “avoid judgment.” Defense counsel requested, and was granted, five minutes
to contact defendant. When counsel could not reach her, he remembered the reason she
was not in court was because she was taking her daughter to a doctor’s appointment.
              In December, the court entered judgment for plaintiff in the amount of
nearly $850,000.

                                               3
                                       DISCUSSION


               Defendant argues the trial court erroneously denied her continuance request
because she had “established good cause” in that the many surgeries she had undergone
for breast cancer, including the biopsy done three days before the trial date, had left her
“medically unavailable for any court proceedings.” The contention lacks merit.
               The grant or denial of a motion to continue is reviewed for an abuse of
discretion. (Oliveros v. County of Los Angeles (2004) 120 Cal.App.4th 1389, 1395;
Color-Vue, Inc. v. Abrams (1996) 44 Cal.App.4th 1599, 1603.) “‘A trial court’s exercise
of discretion will be upheld if it is based on a “reasoned judgment” and complies with the
“legal principles and policies appropriate to the particular matter at issue.”’” (Color-Vue,
Inc., at p. 1603.)
               California Rules of Court, rule 3.1332 (all rule references are to these rules)
governs motions to continue a trial: “A party seeking a continuance of the date set for
trial, whether contested or uncontested or stipulated to by the parties, must make the
request for a continuance by a noticed motion or an ex parte application under the rules in
chapter 4 of this division, with supporting declarations. The party must make the motion
or application as soon as reasonably practical once the necessity for the continuance is
discovered.” (Rule 3.1332(b).) Additionally, 3.1332(d) provides that in ruling on a
request for a continuance “the court must consider all the facts and circumstances that are
relevant to the determination.” “Among other facts and circumstances, the trial court
properly considers the proximity of the trial date, whether there were previous trial
continuances, the length of the requested continuance, and the prejudice that parties or
witnesses would suffer as a result of the continuance. (Rule 3.1332(d).” (Thurman v.
Bayshore Transit Management, Inc. (2012) 203 Cal.App.4th 1112, 1126.) “Trial
continuances are disfavored and may be granted only on an affirmative showing of good
cause. (Rule 3.1332(c).)” (Id. at p. 1127.)

                                              4
              Here, defendant’s most recent request for a 90-day continuance was made
orally after trial had started and plaintiff had concluded his case. No noticed motion or
ex parte application complying with rule 3.1332(b) was ever filed with regard to this
continuance request. Even if the oral request could be construed as such, it was not
accompanied by any written declaration. The letter from her doctor recommending she
not participate in any trial for 90 days from November 18 did not qualify as a declaration
within the meaning of that statute, as it was not made under penalty of perjury. (Code
Civ. Pro., § 2015.5 [individual making a statement by affidavit or declaration must attest
to its truth under penalty of perjury pursuant to California law]; Lewis v. Neptune Society
Corp. (1987) 195 Cal.App.3d 427, 430 [trial court could question unsworn note from
physician of unavailability to attend trial “in light of the short distance [to trial] and the
half-day estimate of the trial length”].) This case had been pending for over three years,
defendant had already made numerous continuance requests, the length of the trial was
estimated to be a maximum of one or two days, plaintiff was ready to proceed with trial
and would be prejudiced by having to wait for another trial date, only to have defendant
request another continuance for medical reasons. Under the facts presented here, the
court did not abuse its discretion in denying defendant’s request for a 90-day
continuance. (See County of San Bernardino v. Doria Mining & Engineering Corp.
(1977) 72 Cal.App.3d 776, 783 [no abuse of discretion in denying continuance where
“[t]here was no noticed motion,” request was “orally raised on the date set for trial”; “the
case had been pending for over four years, the motion was not supported by written
declarations,” and the plaintiff was ready to proceed].)
              A party does not have an absolute right to be present at trial to defend an
action, even where that party’s absence is due to illness. (Thorpe v. Thorpe (1946) 75
Cal.App.2d 605, 609.) Moreover, a party’s illness does not require a continuance if the
trial court concludes the party is able to attend the trial. (Lewis v. Neptune Society Corp.,
supra, 195 Cal.App.3d at p. 430.) In Williams v. Elliott (1954) 127 Cal.App.2d 357, 361-

                                               5
362, the plaintiff contended he had been prejudiced because a portion of the trial was held
without his presence. On the day of his absence, his attorney presented a declaration
from plaintiff’s physician stating plaintiff “was suffering from an ulcer of the duodenum
and was in no condition to appear in court at that time.” (Id. at p. 361.) Plaintiff’s
counsel offered to allow a certain portion of the trial to take place but requested the rest
of it be moved to a more convenient date for the plaintiff. (Id. at pp. 361-362.)
Testimony from the defendant showed the plaintiff had been parked in front of his house
on the day the plaintiff was not in court. The plaintiff’s counsel moved to strike the
testimony and “said that he would stipulate that plaintiff had been on his feet in the last
few days.” (Id. at p. 362.) Williams concluded the trial court did not abuse its discretion
in denying the continuance request under these circumstances. (Ibid.) The same applies
here, as defense counsel had informed the court that defendant was on her feet taking her
daughter to a doctor’s appointment at the time of the trailed trial date despite claiming
she was “medically unavailable” to attend trial.
                  The cases cited by defendant are inapposite. Morehouse v. Morehouse
(1902) 136 Cal. 332 held that the trial court abused its discretion in denying a further
continuance because the defendant had shown, by his physician’s declaration, that he
could not be deposed “without serious injury to him,” or be brought to court for trial
“‘without great risk to his life.’” (Id. at p. 334.) By comparison in this case, the letter by
defendant’s physician did not qualify as a declaration and the fact defendant had taken
her daughter to a doctor’s appointment belies her claim she could not appear in court due
to her illness.
                  Betts Spring Co. v. Jardine Machinery Co. (1914) 23 Cal.App. 705 is also
distinguishable. There, the defendant’s attorney had submitted an affidavit that his client
had been seriously ill, had gone to Scotland on his physician’s advice to recover three
months prior to the setting of the case for trial, would return in two months, and was the
only witness to prove matters in his own defense. The trial court there also remarked

                                               6
there was no intimation of bad faith. (Id. at p. 706.) The appellate court reversed the
denial of a continuance under these circumstances, and the fact the plaintiff had not
shown any prejudice for a two-month delay given his lack of reasonable effort to bring
the case to trial. (Id. at pp. 706-707.) Here, in contrast, all of defendant’s continuance
requests were made after the case had been set and re-set for trial numerous times, the
case was filed in 2011, plaintiff had waited patiently for three years to try the case, and
the trial court believed defendant may be intentionally trying to delay the trial to avoid a
judgment against her.
              In any event, despite cases finding it to be “reversible error and an abuse of
discretion not to grant [a continuance] motion, especially where the witness is the only
person who can establish essential facts . . . all such motions are addressed to the sound
discretion of the court, and a legion of cases repeat the rule that the trial court’s decision
will not be reversed on appeal except upon a clear showing of an abuse of discretion.”
(People Ex Rel. Dept. of Pub. Wks. v. Busick (1968) 259 Cal.App.2d 744, 749.)
Defendant has not met her burden.


                                       DISPOSITION


              The judgment is affirmed. Respondent shall recover his costs on appeal.



                                                   RYLAARSDAM, ACTING P. J.

WE CONCUR:


IKOLA, J.


THOMPSON, J.


                                               7
