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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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,
                                                                     A136266
v.
AM-CAL SERVICES, INC., et al.,                                       (Solano County
                                                                     Super. Ct. No. FCS036118)
         Defendants and Respondents.


         After his attorney withdrew less than a month prior to the scheduled trial date,
plaintiff Isiah Lewis was denied a continuance of the trial to find new counsel. On the
date scheduled for trial, Lewis failed to appear, and the trial court entered judgment
against him with prejudice under Code of Civil Procedure section 631.8. Because we
conclude the trial court abused its discretion in denying the continuance and erred in
granting judgment with prejudice, we vacate the judgment and remand for trial.
                                               I. BACKGROUND
         Lewis, acting in pro. per., filed suit against defendants Am-Cal Services, Inc.,
Glenn Oribello, Timothy Hussey, and Green Island Enterprises on June 30, 2010,
alleging improprieties in connection with a real estate foreclosure. By June 2011, Lewis
was represented by counsel. On July 2, 2012, however, this attorney withdrew, and
Lewis substituted as his own attorney. At the time, trial was scheduled for July 24, 2012.
         On July 12, 2012, the parties appeared for a hearing on defendants’ motion to
bifurcate the trial. Lewis explained to the court that his attorney had “resigned” and
asked for time to find a new attorney. Lewis told the court the attorneys he had contacted
about assuming the representation told him they would not appear unless the trial date
was vacated. The court responded, “I don’t see that happening, quite frankly,” noting the
trial date had been set in February and commenting, “it doesn’t look like, to me, sir,
you’re going to be ready to proceed to trial.” Defense counsel urged the court to leave
the trial date intact. The court granted the motion to bifurcate and indicated the equitable
portion of the case would be called for trial as scheduled, on July 20, 2012.
       On July 20, Lewis apparently was seen at the courthouse by a court bailiff, but he
was not present in court when the case was called for trial. The court confirmed the trial
date, noting, “presumably [Lewis is] ready, if he was here earlier.” The day before trial,
Lewis filed a notice of appeal of the ruling on the motion to bifurcate.
       Lewis did not appear for trial on July 24. John Dioguardi, counsel for defendants
Hussey and Green Island Enterprises, opened the hearing by arguing the trial court
retained jurisdiction, notwithstanding the notice of appeal, because the ruling on the
motion was not an appealable order. The trial court agreed. Dioguardi told the court he
had received no communication from Lewis to explain his absence. He then moved for
entry of judgment under Code of Civil Procedure section 631.8. Following an
adjournment to allow the trial court to review defendants’ trial brief, Dioguardi asked for
leave to make “a very brief opening statement on behalf of the defendants, for prejudice
to attach under [Code of Civil Procedure, section] 581.” Dioguardi explained the present
dispute followed an earlier lawsuit, as a result of which Lewis agreed to make payments
on a promissory note secured by a deed of trust. Lewis complied for a few months, but
then he stopped making payments, and defendants foreclosed on the real property
securing the deed of trust. Dioguardi said he was prepared to prove the foreclosure sale,
the foundation of Lewis’s present claims, was properly executed. He then renewed his
request for judgment under section 631.8.
       Counsel for defendants Oribello and Am-Cal Services, Inc. argued Civil Coode
section 2924 established a rebuttable presumption that a trustee’s sale had been regularly
and properly conducted. Because Lewis had presented no evidence to rebut this
presumption, counsel argued, his clients were entitled to judgment under Code of Civil


                                             2
Procedure section 631.8. Notwithstanding counsels’ presentations, no testimony was
taken, and no documentary evidence was admitted.
       The court granted the requested judgment under Code of Civil Procedure
section 631.8, explaining only, “it’s clear [Lewis] has failed to appear. . . . And I would
note that this lawsuit was originally filed in—in pro per. So the fact that he is in pro per
again is not of the Court’s doing, certainly.” A judgment reciting the events and theories
discussed above was executed on July 30, 2012.
                                     II. DISCUSSION
       Lewis contends the trial court erred in denying his oral request for a continuance
and in entering judgment against him.
       We agree that the trial court abused its discretion in denying Lewis’s request for a
continuance of the trial date. Such continuances are governed by California Rules of
Court, rule 3.1332, which states, “Although continuances of trials are disfavored, each
request for a continuance must be considered on its own merits. The court may grant a
continuance only on an affirmative showing of good cause requiring the continuance.”1
(Cal. Rules of Court, rule 3.1332(c).) We review the trial court’s ruling on a motion for a
continuance for abuse of discretion. (Thurman v. Bayshore Transit Management, Inc.
(2012) 203 Cal.App.4th 1112, 1126.)
       The withdrawal or illness of counsel constitutes good cause for a continuance of
the trial date. (Forrest v. Department of Corporations (2007) 150 Cal.App.4th 183, 199
(Forrest), disapproved on other grounds in Shalant v. Girardi (2011) 51 Cal.4th 1164,
1172 [withdrawal]; Hernandez v. Superior Court (2004) 115 Cal.App.4th 1242, 1246
(Hernandez) [illness].) “ ‘[T]he constitutional due process guarantee does embrace’ the
right of a civil litigant to be represented by retained counsel [citation]. But the right to

       1
         Among the examples of good cause itemized by California Rules of Court,
rule 3.1332 are “[t]he unavailability of trial counsel because of death, illness, or other
excusable circumstances” and “[a] significant, unanticipated change in the status of the
case as a result of which the case is not ready for trial.” (Cal. Rules of Court,
rule 3.1332(c)(3), (7).) In addition to the showing of good cause, the rule lists a number
of relevant circumstances to be considered. (Cal. Rules of Court, rule 3.1332(d).)


                                               3
representation and to a continuance to allow for that representation is not unlimited and
must be considered and balanced with any possible detriment to other parties and the
efficient administration of justice.” (Forrest, at p. 199, fn. omitted.) “ ‘ “While it is true
that a trial judge must have control of the courtroom and its calendar and must have
discretion to deny a request for a continuance when there is no good cause for granting
one, it is equally true that, absent [a lack of diligence or other abusive] circumstances
which are not present in this case, a request for a continuance supported by a showing of
good cause usually ought to be granted.” ’ ” (Oliveros v. County of Los Angeles (2004)
120 Cal.App.4th 1389, 1396 (Oliveros).)
       The trial court’s denial of a continuance to Lewis plainly had the effect of denying
him the due process right of the assistance of counsel, since, as he told the court, he
would be unable to retain counsel without a continuance. The trial court acknowledged
as much when it noted Lewis was unlikely to be ready for trial on the scheduled date.
The court’s ruling might nonetheless be upheld if other circumstances justified the denial
of a continuance, but none did. There had been no prior continuances, for example, and
there was no contention the withdrawal of counsel occurred for a tactical reason. (See,
e.g., Forrest, supra, 150 Cal.App.4th at pp. 200–202.) Defendants cited no prejudice
from a continuance; defense counsel was merely concerned that a voluntary dismissal by
Lewis would avoid a judgment with res judicata effect. Similarly, the court articulated no
circumstances justifying a denial, other than the trial date had been set several months
prior. The court’s trial calendar alone is not a sufficient reason for denying a continuance
in these circumstances. (Oliveros, supra, 120 Cal.App.4th at p. 1399; Hernandez, supra,
115 Cal.App.4th at p. 1246.)
       Defendants argue Lewis’s motion for a continuance was procedurally improper
under California Rules of Court, rule 3.1332(b), having been presented orally and without
documentary evidence. While we acknowledge the procedural impropriety of the
motion, defendants did not object on this ground at the time, and the trial court elected to
consider the motion on its merits. If the objection had been raised in the trial court,
Lewis would have had the opportunity to bring a timely and procedurally proper ex parte


                                               4
motion under the rule. Further, defendants have shown no prejudice from Lewis’s failure
to comply with the procedural requirements. Accordingly, we find this objection to be
forfeited. (E.g., Carlton v. Quint (2000) 77 Cal.App.4th 690, 697.)
       Nor do we find the trial court’s entry of judgment to be legally supportable. If a
plaintiff does not appear for trial, the matter may be dismissed without prejudice. (Code
Civ. Proc., § 581, subd. (b)(5); Vernon v. Great Western Bank (1996) 51 Cal.App.4th
1007, 1012–1013.) If asked to do so, the trial court presumably could have dismissed
Lewis’s complaint without prejudice, and we would have reviewed that ruling for abuse
of discretion. (Link v. Cater (1998) 60 Cal.App.4th 1315, 1321.)
       Dismissal with prejudice under Code of Civil Procedure section 631.8, however,
was error. The statute provides: “After a party has completed his presentation of
evidence in a trial by the court, the other party, without waiving his right to offer
evidence in support of his defense or in rebuttal in the event the motion is not granted,
may move for a judgment. The court as trier of the facts shall weigh the evidence and
may render a judgment in favor of the moving party, in which case the court shall make a
statement of decision as provided in Sections 632 and 634, or may decline to render any
judgment until the close of all the evidence. The court may consider all evidence
received, provided, however, that the party against whom the motion for judgment has
been made shall have had an opportunity to present additional evidence . . . .” (Code Civ.
Proc., § 631.8, subd. (a).) The language plainly anticipates that any judgment rendered
will be on the merits, taking into consideration the plaintiff’s evidence. Decisions
confirm this reading. (E.g., Lingenfelter v. County of Fresno (2007) 154 Cal.App.4th
198, 204 [“a motion for judgment [under section 631.8] is available only after the party
against whom the motion is made has presented his or her evidence. . . . the trial court
must decide questions of credibility, must weigh the evidence, and must make findings of
fact”]; see similarly Ford v. Miller Meat Co. (1994) 28 Cal.App.4th 1196, 1200.)
Because Lewis presented no evidence and defendants made only an offer of proof, it
would have been impossible for the trial court to carry out its duty of weighing the
evidence and making findings of fact, and it did not do so.


                                              5
       Citing Richaud v. Jennings (1993) 16 Cal.App.4th 81, defendants argue Lewis
should be deemed to have abandoned his case, making appropriate, at a minimum, a
dismissal without prejudice under Code of Civil Procedure section 581. The plaintiff in
Richaud actually stipulated to a judgment in order to appeal an adverse evidentiary ruling
that prevented him from proving his case. (Id. at p. 86.) Even if we were to accept the
parallel between the two cases, Richaud would not prevent Lewis from appealing the
denial of his motion for a continuance and seeking reversal of the judgment.
       Defendants also argue Lewis would have been precluded from proving his case
because he failed to file a trial management conference report, in violation of a local rule.
Terminating sanctions are not mandatory under the local rules, and defendants failed to
request them. It is mere speculation to contend Lewis would have been subject to such
sanctions.
       Defendants contend the trial court had inherent authority to dismiss the case with
prejudice. Because Code of Civil Procedure section 581, subdivision (d), dictates a
dismissal without prejudice in these circumstances, it is by no means clear the trial court
had the inherent authority to dismiss with prejudice, and defendants cite no authority for
their contention. Defendants finally argue there was an evidentiary basis for the trial
court to decide the case on the merits. Because no evidence was actually presented at
trial, the availability of evidence to support the decision is irrelevant.
       The trial court’s entry of judgment with prejudice must be vacated. Although a
dismissal without prejudice under Code of Civil Procedure section 581 might have been
affirmed, the trial court did not exercise its discretion under section 581, and we are
unwilling to substitute our judgment for that of the trial court. Further, in light of the trial
court’s error in denying Lewis a continuance to find new counsel, we conclude the
appropriate appellate remedy is to remand the case for a trial.




                                               6
                                  III. DISPOSITION
      The judgment of the trial court is vacated, and the matter is remanded for further
proceedings consistent with this decision.




                                                 _________________________
                                                 Margulies, Acting P.J.


We concur:


_________________________
Dondero, J.


_________________________
Becton, J.*




      *
        Judge of the Contra Costa County Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.



                                             7
