The Court of Appeal for the Second District has ordered the continuance of a trial for six months and the reopening of discovery after the trial judge refused to do so. The opening paragraph of the appellate court's decision begins with a firm statement of the obvious:
If plaintiff's counsel's serious physical illness and its debilitating effects culminating in death during the final stages of litigation are not good cause for continuing a trial and reopening of discovery, there is no such thing as good cause. A plaintiff in a personal injury action is not chargeable with the continued good health of his or her attorney. Forcing such a plaintiff to trial without counsel or adequately prepared counsel is not likely to ensure fairness, the overall policy of the law.
Briefly, counsel for plaintiff in a personal injury case was suffering from advanced pancreatic cancer. Based on his ill health, he obtained an order continuing trial for three months. Counsel died one month later. The plaintiff sought and obtained new counsel, who needed time to prepare for trial. When new counsel made that request, the trial court refused to grant any but the briefest of continuances -- the new date conflicted both with counsel's schedule and with plaintiff's own impending surgery -- and refused to reopen discovery to permit new counsel to prepare for trial. In granting plaintiff's petition for a writ, the Court of Appeal finds that the trial judge abused his discretion as a matter of law.
Perhaps the most remarkable portion of the appellate decision is the description of events at the hearing on the second motion to continue the trial. Both the judge and defense counsel are portrayed as almost irrationally firm in their positions, refusing to grant any quarter in light of the plaintiff's unusually difficult position.
Real party [i.e., the defendant] opposed the continuance, arguing the trial date had already been continued once to accommodate [attorney] Stewart's illness. Real party asserted he would be 'at a disadvantage' if petitioner designated additional experts because costs would increase. He also claimed petitioner had unreasonably delayed finding new counsel. Real party concluded by asserting: '[I]t is obvious that plaintiff would not be injuriously affected by denial of the continuance. The time of the court should not be wasted by failure of plaintiff and counsel to be prepared and for plaintiff to shop around for attorneys.'At the hearing, the trial court noted that it continued the first trial date for three months due to Stewart's illness and said: 'And now a month after he dies, you come in and ask for more time. That could have been done better.' Petitioner explained that he learned of Stewart's death on September 29, 2003, and that he started looking for a new lawyer that day. He denied real party's claims he had 'known for months' that Stewart was terminally ill. Real party contended petitioner should not be permitted to supplement his expert witness list because the terminally ill Stewart had missed the deadline to do so: 'That was his decision as attorney. You can't change that after you die. That will prejudice my client.' Without requiring real party to provide any additional explanation of the potential prejudice, the trial court continued the trial date to January 26, 2004, and denied the request to reopen discovery. The trial court apparently did not consider that Rosenberg was unable to start trial on that date, or that petitioner was scheduled for spinal surgery December of 2003.
Tough crowd.
The decision in Hernandez v. Superior Court (February 23, 2004), Case No. B171030, can be found at these links in PDF and Word formats.
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