Opinion
D049546
12-8-2006
LA JOLLA SERENA HOMEOWNERS ASSOCIATION, Petitioner, v. THE SUPERIOR COURT OF SAN DIEGO COUNTY, Respondent; DEAN VAYSER, Real Party in Interest.
Dean Vayser (Vayser) resides in a condominium within the La Jolla Serena Common Interest Development. On March 24, 2006, the La Jolla Serena Homeowners Association (HOA) directed a towing company to tow Vaysers GMC Yukon from a "no parking" zone. Vayser filed a small claims action for unlawful towing and lost wages. On July 5 the small claims court entered judgment for Vayser against HOA in the amount of $2,000.
HOA filed a notice of appeal on July 27 (Code Civ. Proc., § 116.710, subd. (b); all statutory references are to the Code of Civil Procedure). On August 10 the superior court served the parties with notice that trial de novo would be heard by Judge John L. Davidson on September 7. The notice stated "REQUEST FOR CONTINUANCES must be in writing, addressed to the judge assigned at the location shown above, and filed no less than 10 days prior to the scheduled hearing. If granted, the court will mail a new notice to all parties at the address on file with the court."
On August 28 HOAs attorney Jenny K. Goodman filed a written request for a continuance "to a date after September 2006" based on a scheduling conflict. Vayser was contemporaneously served with a copy of the request by mail to his residence. The court did not act on the request for a continuance.
On September 7, the date for trial, attorney Julie DeLaHunt appeared on behalf of attorney Goodman for HOA. Vayser also appeared. Because Judge Davidson was unavailable, the parties were referred to Judge Richard E. L. Strauss. DeLaHunt renewed HOAs request for a continuance based on the timely request and that she was not the attorney of record and was not prepared to proceed. DeLaHunt explained Goodman was at a deposition out of state. Vayser objected to a continuance, stating he is a physician and he rescheduled his patients appointments to be able to appear on that date. Vayser said he received the request for a continuance only two days earlier. DeLaHunt explained the calendar clerk had given the parties a tentative trial date of October 26 but the clerk said Judge Davidson would need to confirm the date and he was ill. After repeated calls to the clerk, HOA was directed to appear and request a continuance. Vayser conceded he had been out of the country until September 4 but argued he had a telephone and HOA could have called him. The court found Vayser was ready to proceed, HOA was not, and dismissed the appeal on its own motion. The court commented it balanced the doctors busy schedule, loss of income and the amount in controversy against the fact HOA was represented by a "fairly large office" and another attorney could have tried the matter for Goodman or taken her place at the deposition.
This petition followed. HOA argues it has been denied its day in court despite having filed a timely request to continue trial based on good cause of counsels unavailability. Vayser filed informal opposition to the petition. We issued notice in accordance with Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 178.)
In ruling on a request for a continuance, the trial court must exercise its discretion with regard to all interests involved. (Oliveros v. County of Los Angeles (2004) 120 Cal.App.4th 1389, 1395.) "`"[T]he refusal of a continuance which has the practical effect of denying the applicant a fair hearing is reversible error. [Citations.]"" (Ibid.) The strong public policy favoring disposition on the merits outweighs the competing policy favoring judicial efficiency. (Ibid.) "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 upon an affirmative showing of good cause requiring the continuance." (Cal. Rules of Court, rule 375(c); all rule references are to the California Rules of Court.) The unavailability of trial counsel is a circumstance that may indicate good cause. (Rule 375(c)(3).)
Here, the court gave the parties several weeks advance notice of the assigned trial date. HOA requested a continuance in accordance with the superior courts directive and showed good cause. The request for a continuance was not acted on by the assigned judge. Although the court properly considered the prejudice Vayser would suffer as a result of a continuance (Rule 375(d)(5)), HOAs statutory right to appeal and its due process right to a fair hearing outweighed that prejudice. A terminating sanction should not be ordered as a first response where, through no fault of the party, counsel is unable to appear on the scheduled trial date. (Oliveros v. County of Los Angeles, supra, 120 Cal.App.4th 1389, 1399.)
Because HOAs entitlement to relief is clear, we conclude no useful purpose would be served by issuing an order to show cause in this matter. A peremptory writ in the first instance is proper. (§ 1088; Alexander v. Superior Court (1993) 5 Cal.4th 1218, 1222-1223 (disapproved on another ground in Hassan v. Mercy American River Hosp. (2003) 31 Cal.4th 709, 724, fn. 4); Ng v. Superior Court (1992) 4 Cal.4th 29, 35.)
DISPOSITION
Let a writ of mandate issue directing the superior court to vacate its September 7, 2006, order dismissing the appeal and enter a new order setting the matter for trial. This opinion is made final in 10 days as to this court. (Rule 24 (b)(3).) Costs are awarded to petitioner. (Rule 56 (l)(1).)
We Concur:
NARES, Acting P. J.
HALLER, J. --------------- Notes: HOA also filed a petition for rehearing in the superior court, or alternatively certification for transfer to this court. The superior court denied the petition on November 6, 2006.