Filed 10/30/17
                           CERTIFIED FOR PUBLICATION

             IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                             FIRST APPELLATE DISTRICT

                                      DIVISION TWO


RICHARD A. DENTON,
        Plaintiff and Appellant,
                                                   A147384
v.
CITY AND COUNTY OF SAN                             (San Francisco County
FRANCISCO et al.,                                  Super. Ct. No. CGC-13-534508)
        Defendants and Respondents.


        Plaintiff Richard Denton filed a lawsuit against defendants City and County of San
Francisco, his employer, and John Doyle, his supervisor (when referred to collectively,
defendants). Defendants filed a motion for summary judgment, and in the weeks leading
up to the hearing on the motion the parties engaged in settlement discussions. That led to
a settlement—for $250,000—and Denton’s then-counsel filed a notice of conditional
settlement. A week later, after Denton had discharged his attorney, defendants’ counsel
successfully applied ex parte to have the settlement set aside—this, despite Denton twice
assuring defendants’ counsel that he was not backing out of the settlement. Four days
later, defendants’ summary judgment motion came on for hearing. Denton, appearing in
propria persona, and insisting the parties had agreed to a settlement, requested a
continuance so he could oppose the motion. The trial court denied the request and
granted defendants’ motion on the ground it was unopposed. Denton then filed a motion
for new trial, which the trial court denied.
        We reverse, concluding the trial court abused its discretion in denying Denton’s
request to continue the hearing on the summary judgment motion and in denying his
motion for new trial.


                                               1
                                      BACKGROUND
       In 2003, Denton began his employment with the City and County of San Francisco
(City). He began in the Department of Emergency Management, and in 2009 moved to
the San Francisco Public Utilities Commission. In September 2013, while still employed
with the City, Denton filed a complaint against defendants. 1 The complaint was filed in
propria persona. 2
       In February 2014, attorney Clarice Letizia substituted in on behalf of Denton.
       In March 2014, the case was set for jury trial in March 2015.
       In November 2014, Letizia filed a first amended complaint, the operative pleading
here, alleging eight causes of action: workplace retaliation (Lab. Code, § 1102.5);
disability discrimination (disparate treatment); disability discrimination (failure to
accommodate); disability discrimination (failure to engage in the interactive process);
defamation; violation of the Confidentiality of Medical Information Act (Civ. Code,
§ 56 et seq.); hostile work environment harassment; and failure to prevent harassment,
discrimination, or retaliation. The only causes of action alleged against Doyle were
defamation and hostile work environment harassment.
       Denton served various discovery, responses to which he claimed were inadequate,
necessitating several motions. In February 2015, the trial date was continued to
September 21, 2015, and then again, by stipulation, to October 26.
       Meanwhile, on December 1, 2014, defendants filed a motion for summary
judgment or, in the alternative, summary adjudication, set for hearing on February 19,
2015. The motion was accompanied by a 39-page supporting memorandum, a 13-page
statement of claimed undisputed material facts, a request for judicial notice of six
exhibits, and seven declarations.
       Because discovery issues remained, hearing on the motion was continued several
times, the last time to be heard on September 25. The effect of this was that Denton’s
       1
        The complaint also named Permanente Medical Group, Inc., which was
dismissed, apparently based on a good faith settlement.
       2
           Denton is an attorney by education.


                                                 2
opposition to the motion for summary judgment would be due September 11. Whether
attorney Letizia was working on such opposition is not apparent from the record. What is
apparent is that the parties agreed to attempt to settle. And did. Specifically:
       On Friday, September 4, a mediation was held with Michael Young of Judicate
West. No settlement was reached by the end of the day, but the parties agreed to
continue negotiating by telephone with the mediator the next week. As defendants’ own
brief describes it: “The parties continued to negotiate throughout the week but had not
reached a resolution by Thursday, September 10, 2014—the day before Denton’s
opposition to Defendants’ motion for summary judgment was due. Defendants agreed to
extend the time for Denton to file his opposition to Monday, September 14, 2015, to
allow for additional time to reach settlement.”
       Defendants’ attorney Lisa Berkowitz sent an e-mail confirming this, “in the hope
that the parties could reach a resolution before that time.” Or, as Denton’s attorney
Letizia confirmed in her e-mail on the morning of September 10: “This will confirm that
you will not object to my filing the Opposition to Your Motion for Summary Judgment
on Monday, 9-14-15, instead of tomorrow 9-11-15, so that we can continue our efforts to
settle the case today.”
       Those efforts proved fruitful, and on September 11, mediator Young informed
defendants’ attorney Berkowitz that agreement had been reached. And on September 14,
Denton’s attorney Letizia filed a notice of conditional settlement. Again, we quote
defendants’ description of the state of affairs as of this time: the “Board of Supervisors
and Public Utilities Commission had not yet approved the settlement, nor had the parties
reduced the terms of settlement to writing. Defendants, however, believed that there was
agreement as to all material terms.”
       Very early on the morning of September 16, Denton discharged attorney Letizia.
As Denton described it, “I discharged my attorney, Clarice Letizia, for refusing to
withdraw the 998 offers that were still pending in addition to the conditional settlement,
provided her with a signed and dated substitution of attorney form, and instructed her not



                                             3
to perform any further work on my case, and to have no further contact with any of the
parties associated with the case.”
       Later that day, Denton signed a notice of substitution of attorneys for Letizia to
sign and file with the trial court, substituting himself in place of Letizia. As will be seen,
Letizia did not file the substitution until September 21.
       At 7:49 a.m. on September 16, less than hour after discharging Letizia, Denton
sent an e-mail to defendants’ attorney Berkowitz. It read in its entirety as follows:
       “This email is to inform you that Clarice Letizia no longer represents me in any
legal matters effective 6:51 am this morning, and has been instructed not to have any
further contact with you or your clients. If Ms. Letizia has contacted you or your clients
since 6:51 a.m., or makes any future contacts, please let me know.
       “Additionally, Ms. Letizia informs me she made two 998 settlement offers, one to
CCSF and one to Mr. Doyle. So that no confusion about their status remains I’m taking
this opportunity to state that any and all CCP 998 settlements [sic] offers to date are
withdrawn if not already withdrawn.
       “It is my understanding Ms. Letizia has sent at least one other settlement offer and
I only just learned she has filed a conditional Notice of Settlement form CM-200. I will
contact you later about these developments.”
       At 11:12 a.m. the next day, September 17, Denton sent another e-mail to
Berkowitz. It read as follows: “Dear Ms. Berkowitz, [¶] Because of recent
communications I received from Ms. Letizia, it would appear there will be a delay in
filing and serving the form CM-050 notification of attorney substitution. So I just wanted
to take this opportunity to reaffirm that I have terminated Ms. Letizia’s representation as
of 6:51 a.m. on 09/16/05; that I am the Plaintiff in pro per for my case; and that any
communications from Ms. Letizia you have received, or may receive involving my case
are to be ignored. If there have been any communications from her on my matter, please
let me know.”
       Eighteen minutes later, Berkowitz e-mailed back:



                                              4
       “We (meaning the City defendants and you) had a settlement agreement. My
understanding from the mediator is that you agreed to that settlement. You are taking
now [sic] backing out of the agreement for reasons that you have not shared with me. Is
this correct?
       “If so, you or your lawyer need to immediately rescind the Notice of Settlement
with the Court. Please be advised that I will be requesting from the Court that my
summary judgment be heard as scheduled next week, and the trial date proceed as
scheduled. You and Ms. Letizia will be cc-d on any such correspondence/filings.
       “I am cc-ing Ms. Letizia until I get a substitution form from you.”
       Denton responded within an hour: “Ms. Letizia has not as yet been provided me
[sic] with a copy of the offer to settle you refer to. It would expedite matters if you could
provide me with a copy (email would be fine).”
       Berkowitz replied immediately, the text of her e-mail reading as follows: “The
proposed settlement amount is the agreed upon amount reached with the mediator’s help
via telephone to both lawyers in the days following the mediation. It is not in writing,
except as confirmed by the mediator by email to the lawyers on 9/11/15. It is $250,000,
inclusive of attorneys fees, total, subject to approval by the SF Board of Supervisors and
the PUC Commission in exchange for a full release of all claims, as set forth in the City’s
standard settlement agreement. I was in the process of finalizing the settlement and
release to send to your attorney for her review when I got your email this week. It is my
understanding that you approved and agreed to this settlement.”
       At 10:34 a.m. on Friday, September 18, Berkowitz e-mailed notice to Letizia and
Denton that defendants would appear ex parte on the following Monday, a notice entitled
“Application for an Order Vacating Notice of Settlement Filed by Plaintiff.” The ex
parte notice made no mention of any other relief that would be sought.
       In response to Berkowitz’s reference to Denton’s purported “rejection” of the
settlement agreement, Denton twice corrected Berkowitz in writing. The first was
mid-Friday, September 18, a few hours after Berkowitz sent the ex parte notice, when
Denton replied: “I have communicated nothing to you in regards to an acceptance or


                                              5
rejection of the proposed settlement that is the subject of the Notice of Settlement. In my
email to you on 9/18/15 7:49 a.m. I reaffirmed/restated my withdrawal of any CCP 998
offers and those offers only which is entirely unrelated to the Notice of Settlement.
       The second was on Sunday, September 20, when he again told Berkowitz via
e-mail that “I have not rejected the settlement agreement.”
       Defendants’ ex parte notice was accompanied by a declaration from attorney
Berkowitz, which declaration testified in pertinent part as follows:
       “2. . . . [O]n September 11, 2015, a settlement was reached. It was my
understanding that Plaintiff was in agreement to this settlement. Indeed, the mediator
confirmed that all parties were in agreement to the settlement before confirming the
settlement in an email to the [sic] both Plaintiff’s counsel and myself.
       “3. Plaintiff’s attorney, Clarice Letizia, apparently immediately filed a Notice of
(Conditional) Settlement of Entire Case with the Court on September 11, 2015—before
the settlement and release had been drafted or signed by the parties. (See Exh. A
attached.)
       “4. On September 16, 2015, I received an email from Plaintiff in which he
informed me that he had fired his lawyer, that she no longer represents him, and that all
settlement offers are withdrawn. (See a true and correct copy of that email, attached as
Exh. B.)[3]
       “5. I immediately contacted both the mediator and Ms. Letizia and learned that
indeed, Plaintiff was no longer agreeable to settling this case.
       “6. I then requested in a telephone call to Ms. Letizia and an email to both Ms.
Letizia and Plaintiff that they rescind the Notice of Settlement. (See a true and correct
copy of that email attached as Exh. C.) As of September 18, 2015, Plaintiff has not
rescinded the Notice of Settlement.

       3
         Exhibit B was Denton’s September 16 e-mail quoted above. That e-mail does
not say “all settlement offers are withdrawn.” To the contrary, it states that the 998 offers
are “withdrawn,” and then refers to “one other settlement offer,” about which he “will
contact” Berkowitz.


                                              6
       “7. Plaintiff emailed me on September 17, 2015, informing me that there would
be a delay in filing the substitution of attorney form and reiterating that he is pursuing
this case in pro per. (A true and correct copy of that email is attached as Exh. C.)”
       So, according to attorney Berkowitz, Letizia informed her on September 16, after
Letizia had been discharged and instructed by Denton not to communicate with other
parties—that Denton was no longer agreeable to the settlement. As shown above, Denton
told Berkowitz he was. Whatever, that was the state of attorney Berkowitz’s knowledge
as she proceeded to the ex parte hearing on Monday morning.
       Denton, who did not know what was in the notice of the ex parte hearing, met with
Berkowitz before the hearing. As Denton describes it, “[s]he accused him of being
deliberately ambiguous and refused his offer to do whatever he could to demonstrate his
commitment to the settlement.”
       At the time set for hearing, the clerk recorded Denton’s and Berkowitz’s
appearances and, as is typical, took the ex parte papers to the judge’s chambers. This was
the first time Denton received a copy of the papers. 4 Contrary to what had been in the
notice e-mailed to him, the application not only asked the court to vacate the notice of
conditional settlement, but to maintain the previously scheduled date of September 25 for
the hearing on the City’s summary judgment motion.
       The court granted the application without taking the bench, its order stating that it
was doing so “specifically because Plaintiff Richard A. Denton has not agreed to a
settlement.” The order vacated the notice of conditional settlement and stated that the
September 25 hearing date for the summary judgment motion and the October 26 trial
date “remain on calendar.”
       After the court vacated the notice of settlement, Denton attempted to negotiate a
new agreement with the City, and on September 24, the day before the summary

       4
         Although Letizia had apparently been served with a copy of the ex parte
application on September 18, she did not forward a copy of the application to Denton, nor
did she file any opposition to the application on Denton’s behalf. Rather, on September
21, just hours before the ex parte hearing, she filed the substitution of attorney.


                                              7
judgment hearing, filed a new notice of conditional settlement. The register of actions
shows the court treated this notice as void under the order of September 21.
       The next development was the hearing on September 25, the scheduled date for
the summary judgment motion. Denton appeared in propria persona, without any
opposition having been filed. The hearing was brief indeed, resulting in a transcript of
some four pages, a hearing that began as follows:
       “THE CLERK: Calling line No. 4, 534508, Richard Denton vs. the City and
County of San Francisco.
       “MS. BERKOWITZ: Good morning, your Honor. Lisa Berkowitz for the City
and County and individual defendant John Doyle.
       “MR. DENTON: Richard Denton, Plaintiff pro per.
       “THE COURT: Mr. Denton, I got a notice of contest from you, so—
       “MR. DENTON: Last Monday.
       “THE COURT: Just a second. All right. The matter was granted. There was no
opposition filed.
       “Now, what can I do for you?”
       And it was downhill for Denton from there. Denton requested a continuance: “I
would like to contest that motion from last Monday [the ex parte ruling] and ask to have
the motion for summary judgment re-noticed.” The court denied it, and confirmed it was
granting the summary judgment motion: “Mr. Denton, there’s absolutely no basis on
which I can change my ruling. I’m not going to continue anything. You had your
opportunity. You didn’t take it.”
       Denton persisted, arguing that he had too little time to prepare and was actively
seeking new counsel. He pointed out that defendants’ counsel had conceded in the ex
parte application that a settlement had been reached. The hearing ended with Denton’s
last pitch—and the court’s terse reaction. This was it:
       “MR. DENTON: Your Honor, my attorney put in the substitution, finalized the
substitution at 5:30 a.m. on Monday of the ex parte motion, so I had from that time until
when we walked in the door to prepare.


                                             8
       “I did come in. I’m unfamiliar with the procedures. I had no desire or intention to
continue as pro per. I’m actively seeking and will shortly secure a new attorney. We had
a settlement agreement that in her filing she acknowledges that we had a settlement
agreement. As soon as opposing counsel saw that I let my attorney go, she filed a motion
to take advantage of the fact that I was without representation.
       “Mediation continues. We’re very close. We have a settlement. We have exactly
the same terms that have been agreed on for the last two weeks. Opposing counsel
simply denies them, and I—it is my intent to settle this case, and I would at least like
some additional time to pursue that.
       “THE COURT: There’s no case to settle, sir. I’m going to sign a judgment.”
       That same day, the court signed and filed the order granting the motion for
summary judgment. The order reads in its entirety as follows: “This matter came on for
hearing on September 24, 2015 . . . . Deputy City Attorney Lisa B. Berkowitz appeared
on behalf of defendants, the City and County of San Francisco (‘City’) and John Doyle.
Plaintiff Richard A. Denton appeared in pro per. There being no opposition filed, THE
COURT HEREBY GRANTS Defendant’s Motion for Summary Judgment. [¶] IT IS
SO ORDERED.”
       Judgment was entered on October 22.
       On November 18, still representing himself, Denton filed a motion for new trial.
It argued four grounds: (1) “irregularity in the proceedings,” because both Berkowitz and
Letizia had engaged in attorney misconduct that resulted in the trial court granting the ex
parte application and deprived him of a fair opportunity to oppose the summary judgment
motion 5; (2) unfair surprise, in light of the notice provided and because the ex parte



       5
         Denton contended that Berkowitz breached her duty of candor to the court by
submitting an ex parte application that stated Denton was withdrawing from the
settlement, notwithstanding his two written notifications since the ex parte notice that he
was not. As to Letizia, Denton contended she had engaged in attorney misconduct by
refusing to withdraw promptly after her discharge, miscommunicating Denton’s position
on the settlement, and then withdrawing just hours before the ex parte application was

                                              9
notice did not state defendants would seek to have the summary judgment motion heard
on that date; (3) insufficiency of the evidence; and (4) error of law, the trial court having
granted the summary judgment motion on the sole basis Denton had not filed opposition.
       Defendants’ primary argument in opposition to the new trial focused on Denton’s
failure to file opposition to the summary judgment motion, arguing that he failed to file
written opposition, a declaration, or a request for a continuance “even though it was
undisputed that the parties did not have a settlement agreement at the time his opposition
was due.” Defendants also contended that Berkowitz did not engage in misconduct
because there was “no evidence” she was not “acting truthfully in litigating this case” at
all times; that Denton’s communications with Berkowitz regarding the settlement were
ambiguous; and that he attempted to negotiate a new settlement on September 22.
Defendants also faulted Denton for trying to negotiate a settlement instead of submitting
a declaration seeking a continuance. And they contended Denton did not suffer surprise
because he failed to demonstrate diligence in opposing the summary judgment motion,
and that the trial court had discretion to grant summary judgment because Denton failed
to file opposition.
       Denton filed a reply, and the new trial motion came on for hearing on December
28. This hearing, too, was brief, all of eight pages. It began with Denton asking to
confirm his understanding of the tentative ruling, that “It was because I did not show how
I could have successfully opposed the motion.” The court responded, “You didn’t
oppose it.” Despite Denton’s best efforts, the court indicated, time and again, the lack of
opposition to the summary judgment motion. In the court’s words, “You know, it all
goes back to the granting of the unopposed motion.” After several more minutes of
argument from both Denton and Berkowitz, the trial court returned to its point: “Sir, I
don’t know what you’ve got there, but let’s go back to the salient factor here. The
motion that was granted was unopposed.”


heard, without opposing it or even providing Denton a copy of the application, thus
breaching her duty under Rules of Professional Conduct, rule 3-700(A)(2).


                                             10
       The court dismissed Denton’s complaint of Letizia’s misconduct, saying at one
point, “You may have some complaint against your former attorney, but that has nothing
to do with what’s in front of me”; and at another, “I told you what your remedy is there.
It’s between you and Ms. Letizia.” And, apparently agreeing with defendants’ counsel
Berkowitz that no settlement had been reached, the court stated, “She [Berkowitz]
declares that there was a withdrawal of the 998. You’re withdrawing it. Settlement was
rejected. I don’t know what else to say.” The new trial motion was denied.
       Denton appealed from that denial, and from the summary judgment.
                                        DISCUSSION
       Denton, now represented by counsel, has filed a comprehensive brief, well written
and well researched, 6 asserting three claims of error: (1) granting ex parte relief in the
absence of any showing why immediate relief was necessary; (2) denying Denton’s
request for a continuance of the summary judgment hearing and granting the summary
judgment motion on the ground that Denton had failed to file an opposition; and
(3) denying the motion for new trial.
       We conclude the second and third arguments have merit, and thus reverse, without
the need to discuss the first argument.
       The Trial Court Abused Its Discretion in Refusing to Continue the Summary
       Judgment Hearing and Denying the Motion for New Trial
       As discussed, following the court’s ruling against him on the ex parte motion,
Denton appeared on the date scheduled for the summary judgment hearing and requested
a continuance. The trial court denied it, emphasizing that Denton had not filed any
opposition to the motion, along the way casting aspersions at Denton for the several
continuances of the hearing. This comment is illustrative: “I’m not going to continue

       6
         Defendants have also filed a comprehensive brief, responding to each of
Denton’s arguments. Indeed, defendants then go on for 23 additional pages in support of
their position that they set forth a prima facie showing supporting their summary
judgment on a cause-of-action by cause-of-action basis. Curiously, defendants’ argument
does not address the claims in order but rather in this order: sixth, fifth, seventh, fourth,
third, second, first, and eighth.


                                              11
anything. You had your opportunity. You didn’t take it. You litigated this case up and
down. You’re certainly aware of the procedural issues and rules involved. This is the
end of it. [¶] . . . [¶] There was one extension after another in this, in the history of this
case. There was a motion. You didn’t oppose it. . . . I didn’t get a piece of paper from
you. It’s over.” This was error.
          When, as here, a request for a continuance of a summary judgment motion is made
on grounds other than the mandatory basis of Code of Civil Procedure, section 437c,
subdivision (h), the court must determine whether the party requesting the continuance
has established good cause. (Hamilton v. Orange County Sheriff’s Dept. (2017)
8 Cal.App.5th 759, 765; Lerma v. County of Orange (2004) 120 Cal.App.4th 709, 717
(Lerma).) And whether good cause has been shown is reviewed for abuse of discretion.
(Ibid.)
          In People v. Jacobs (2007) 156 Cal.App.4th 728, 736 (Jacobs), we began our
analysis with a lengthy discussion of the concept of abuse of discretion, as follows:
          “Various definitions and principles describing the abuse of discretion standard of
review have been stated and repeated in numerous cases, such as in Blank v. Kirwan
(1985) 39 Cal.3d 311, 331, that we will set aside a trial court ruling only upon a showing
of ‘ “ ‘a clear case of abuse’ ” ’ and ‘ “ ‘a miscarriage of justice.’ ” ’ As to what is
required to show such abuse, it has been said that a trial court abuses its discretion only
when its ruling ‘ “ ‘fall[s] “outside the bounds of reason.” ’ ” [Citation.]’ (People v.
Benavides (2005) 35 Cal.4th 69, 88); accord, Denham v. Superior Court (1970) 2 Cal.3d
557, 566 [abuse of discretion requires a showing that the trial court ‘ “exceed[ed] the
bounds of reason, all of the circumstances before it being considered” ’].) More
colorfully, it has been said that discretion is abused only when the trial court’s ruling is
arbitrary, whimsical, or capricious. (People v. Linkenauger (1995) 32 Cal.App.4th 1603,
1614; People v. Branch (2001) 91 Cal.App.4th 274, 282; see People v. Giminez (1975)
14 Cal.3d 68, 72 [‘ “capricious disposition or whimsical thinking” ’].)”
          We went on to describe other possible descriptions, but noting that “The scope of
discretion always resides in the particular law being applied, i.e., in the ‘legal principles


                                               12
that govern the subject of [the] discretionary action . . . .’ ” (Jacobs, supra,
156 Cal.App.4th at p. 737.)
       And we concluded with this: “All this is well described in Witkin where, likewise
citing the still vital Bailey v. Taaffe [(1866)] 29 Cal. 422, 424, the author distills the
principle as follows: ‘Limits of Legal Discretion. [¶] The discretion of a trial judge is
not a whimsical, uncontrolled power, but a legal discretion, which is subject to the
limitations of legal principles governing the subject of its action, and to reversal on
appeal where no reasonable basis for the action is shown. (See 5 Am.Jur.2d, Appellate
Review § 695.) . . .’ (9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, § 358, pp.
406–407.)” (Jacobs, supra, 156 Cal.App.4th at p. 738.)
       In light of what occurred in the brief hearing, and the short shrift given Denton by
the trial court, it might be said that the trial court acted arbitrarily. Or capriciously. That,
of course, would end the matter.
       But even if those adjectives do not apply, Denton should have been granted the
continuance in the circumstances he found himself, circumstances that were not his fault.
(See Lerma, supra, 120 Cal.App.4th at p. 717.) The effect, of course, was the granting of
the motion—and summary judgment—without Denton given any fair opportunity to
oppose it. This cannot be. As Witkin tersely summarizes it, discretion “must be
exercised with due regard to all interests involved, and the refusal of a continuance that
has the practical effect of denying the applicant a fair hearing is reversible error.
[Citations.]” (7 Witkin, Cal. Procedure (5th ed. 2008) Trial, § 11, p. 38.)
       When considering a continuance of a summary judgment hearing, “ ‘a review of
the standards governing requests for continuance of trial dates is instructive.’ ” (Lerma,
supra, 120 Cal.App.4th at p. 716.) Denton’s situation here was certainly analogous to
one of the statutory grounds: “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)(7).) We thus agree with Denton’s description: “Denton argued that because
City refused to recognize a settlement it had previously asserted to exist, and from which
he had not withdrawn, he was surprised that the summary motion was being heard on that


                                               13
date and he needed additional time to seek new counsel to help oppose the motion if he
could not settle. Denton went from coasting toward approval of the settlement by the
board of supervisors to having to rev up to oppose a summary judgment motion being
heard in just four days, and to do so without counsel or access to his client file. The
words ‘change in status’ and ‘not ready’ in rule 3.1332(c)(7), hardly begin to describe it.”
       We see no basis supporting the trial court’s ruling. To the extent the court implied
that Denton was not diligent—“[t]here was one extension after another”—the implication
is not supported by the record. Indeed, defendants’ counsel acknowledged as much at the
hearing, asserting that Denton had been aggressive, not dilatory, counsel complaining of
“excessive discovery motions” and “numerous depositions” that were “over the discovery
limits.”
       Defendants’ arguments are unpersuasive. They first argue that “Because No
Settlement Was Ever Reached, Denton Had No Reasonable Expectation” that the hearing
would be vacated. In light of the facts set forth above, we wonder how defendants can
even assert such a position.
       Defendants also argue that the trial court did not abuse its discretion. They point
essentially to the fact that Denton did not file a written request for a continuance, arguing
as follows: “Here, by contrast, Denton—a law school graduate who submitted
declarations in support of numerous motions that his lawyer filed throughout the
case—made no effort to file a written request for a continuance at any point in the week
leading up to the hearing. In such circumstances, the trial court did not abuse its
discretion in denying Denton’s last minute oral request for a fourth continuance of the
summary judgment deadline.” (Fn. omitted.)
       To begin with, we are troubled by defendants’ argument of technical
noncompliance with the rules, particularly in light of their position that their own
noncompliance with the ex parte notice rules—noncompliance they implicitly
acknowledge—be overlooked.
       But passing over that, the injustice created by the trial court’s denial of the
continuance made any technical procedural noncompliance inconsequential. Hamilton v.


                                              14
Orange County Sheriff’s Dept., supra, 8 Cal.App.5th 759 is illustrative. There, summary
judgment was obtained by defendant’s “ability to postpone depositions past the point of
no return,” even though the defendant did not intentionally try to undermine plaintiff’s
ability to take the depositions or oppose the motion. (Id. at p. 766.) The Court of Appeal
reversed: “Where denial of a continuance would result in manifest injustice, as it did
here, the policy disfavoring continuances must give way.” (Ibid.)
       Likewise here. Defendants obtained a judgment on a basis other than the merits
and in the absence of any opposition, accomplished by making an ex parte application
unsupported by evidence of irreparable harm—and which Denton had no meaningful
opportunity to oppose. And it was all against the background that Denton not only never
advised defendants he was backing out of the settlement, but affirmatively stated that he
had “not rejected the settlement agreement.” That was the setting in which the $250,000
settlement was lost.
       Superimposed on all this was what the trial court did—granting summary
judgment for lack of opposition—was the equivalent of a terminating sanction. Such
cannot be upheld here, just as it was not in Security Pacific Nat. Bank v. Bradley (1992)
4 Cal.App.4th 89, where the trial court refused a continuance to allow the defendant to
prepare a separate statement in opposition to the bank’s summary judgment motion, and
granted the motion. The Court of Appeal reversed, holding that “Sanctions which have
the effect of granting judgment to the other party on purely procedural grounds are
disfavored. [Citations.] Terminating sanctions have been held to be an abuse of
discretion unless the party’s violation of the procedural rule was willful [citations] or, if
not willful, at least preceded by a history of abuse of pretrial procedures, or a showing
less severe sanctions would not procedure compliance with the procedural rule.” (Id. at
pp. 97–98.)
       Almost all the summary judgment-related continuance cases deal with
continuances to make discovery, continuances provided for by the statute itself. Even so,
the principles in those cases are relevant, especially in those cases where the party
moving for a continuance had not filed the required declaration or the declaration did not


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meet the statutory requirements. As the leading practical treatise puts it, “Nonetheless,
the court must determine whether the party requesting the continuance has established
good cause for it. That determination is within the court’s discretion. [Lerma v. County
of Orange (2004) 120 [Cal.App.4th] 709, 716; Chavez v. 24 Hour Fitness USA, Inc.
(2015) 238 [Cal.App.4th] 632, 644 . . . . [¶] Usually, the court’s discretion should be
exercised in favor of granting a continuance: ‘The interests at stake are too high to
sanction the denial of a continuance without good reason.’ [Frazee v. Seely (2002)
95 [Cal.App.4th] 627, 634 . . . .]” (Weil & Brown, Cal. Practice Guide: Civil Procedure
Before Trial (The Rutter Group 2017) ¶ 10:208, p. 10-89.)
       In sum, the trial court abused its discretion when it denied Denton’s request for
continuance of the summary judgment hearing. Likewise, when it denied his motion for
new trial.
       We review rulings on new trial motions for abuse of discretion. (Aguilar v.
Atlantic Richfield Co. (2001) 25 Cal.4th 826, 859; Wall Street Network, Ltd. v. New York
Times Co. (2008) 164 Cal.App.4th 1171, 1176.) The discussion above demonstrates such
abuse in that denial, as it demonstrated surprise, one of the bases of Denton’s new trial
motion.
       Denial of new trial was probably wrong as to Denton’s claim of legal error as well,
and would not withstand scrutiny under the summary judgment principles. That is, even
without opposition, a court may not grant a motion for summary judgment unless it first
determines that defendants have met their initial burden of proof. (Thatcher v. Lucky
Stores, Inc. (2000) 79 Cal.App.4th 1081, 1085–1086.) Here, and despite the presumption
that the trial court has regularly performed its official duties (see Evid. Code, § 664), the
court’s comments at the hearing gave no indication that the moving papers were ever
reviewed.
       Jacobs, supra, 156 Cal.App.4th 728 involved an appeal by a defendant who was
sentenced to five years four months in state prison by a different judge than the one who
presided over the trial. The sentencing judge refused to grant defendant a two-day
continuance under Penal Code section 1050, so that the trial judge could impose


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sentence. Defendant appealed, and we reversed, ending our opinion with this: “Our
Supreme Court has held that ‘trial court discretion is not unlimited. “The discretion of a
trial judge . . . is subject to the limitations of legal principles governing the subject of its
action, and to reversal on appeal where no reasonable basis for the action is shown.
[Citation.]” ’ (Westside Community for Independent Living, Inc. v. Obledo [(1983)]
33 Cal.3d [348,] 355.) We hold that the decision by [the trial court here] . . . was not ‘in
conformity with the spirit of the law,’ and could be said to ‘defeat the ends of substantial
justice.’ (Bailey v. Taaffe, supra, 29 Cal. 422, 424.) Such decision cannot stand . . . .”
(Jacobs, supra, 156 Cal.App.4th at pp. 740–741.) Same here.
                                        DISPOSITION
       The order denying the motion for new trial is reversed, as is the summary
judgment. The matter is remanded for further proceedings consistent with this opinion.
Denton shall recover his costs on appeal.




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                                         _________________________
                                         Richman, J.


We concur:


_________________________
Kline, P.J.


_________________________
Miller, J.




A147384; Denton v. City & County of SF




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