Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County, No. 07CC12396, Charles Margines, Judge.
Mazur & Mazur, Janice R. Mazur and William E. Mazur, Jr. for Defendant and Appellant.
Casello & Lincoln and James H. Casello for Plaintiff and Respondent.
OPINION
SILLS, P. J.
We do not reverse the judgment in this case lightly, but reverse it we must. To illustrate, consider the following hypothetical: A defendant is sued in a collection case, and hires a lawyer to defend her. With trial just a few weeks away, though, the lawyer, realizing that the nature of the debt requires some legal sophistication to understand, tries to associate another lawyer into the case. The potentially-associated lawyer wants, of course, to see the file. No problem: The hired lawyer lends the potentially-associated lawyer the file, and naively assumes the potentially-associated lawyer will return it after the file is copied at a local copying center. Unbeknownst to the first lawyer, however, is that the potentially-associated lawyer is having his own problems, and is about to be arrested. In fact, as luck would have it, the potentially-associated lawyer is arrested in another county just before the trial. More importantly, the first lawyer never gets the file back!
Is there any doubt that under such facts -- an attorney’s file literally stolen by a miscreant attorney -- that a continuance would be in order and it would be an abuse of discretion for the trial judge not to continue the trial? And particularly so if it turned out that (a) there had not been any previous continuances and (b) the opposing party could show no prejudice?
Well, those are the facts of this case, save for this change: The “first lawyer” in our hypo is the client herself who otherwise was required to defend the case in pro per. And yes, the attorney with whom the trial was entrusted really was arrested in another county (Riverside, in this case). In fact, she was arrested for (big surprise) stealing from clients. If an attorney who naively entrusts a file to another attorney and doesn’t get it back would be practically entitled to a continuance, the same principle applies to a pro per.
PROCEDURAL HISTORY
As mentioned, this is a debt collection case. The debt in question arose out of Tu My Tong’s retention of, in early 2007, the law firm of Casello & Lincoln to defend her in two Los Angeles cases (referred to in the complaint as the “Urban Eco” and “Michael Rone” cases). In late 2007, Casello & Lincoln filed this action against Tong for the unpaid balance of their fees, about $82,000. Tong, then represented by counsel (attorney John H. Hamilton), responded in January 2008 with a cross-complaint for legal malpractice, the basic theories being that the firm overbilled for their work and dismissed claims against certain defendants in the Urban Eco case that they should not have. The case was initially assigned to Judge H. Warren Siegel.
By April 2008, however, Tong no longer had counsel. (A substitution of attorney was filed on February 22, 2008.) She represented herself at the case management conference. Two things happened: First, trial was scheduled for July 21, 2008. Second, Tong apparently spoke to the judge about the still ongoing Rone case, which might conflict with the trial date. Judge Siegel apparently said (in Tong’s remembrance of his comment) to simply tell him about the status of the Rone case “when it will come to the time.”
According to the trial court’s docket entry for April 7, 2008, which reads, in its entirety: “Jury Trial scheduled for 7/21/2008 at 9:30:00 AM in C13 at Central Justice Center.” However, at an ex parte hearing on July 9 (discussed two paragraphs from now), Judge Siegel seemed to be under the impression that trial was scheduled for the 14th. In any event, trial did not start until the 21st.
We don’t have a reporter’s transcript of the status conference. All we have is Tong’s own declaration dated July 7, 2008 about what she had earlier told to Judge Siegel.
Before trial, however, there would be two ex parte requests for a continuance by Tong.
The first was on July 8, when Tong presented a handwritten ex parte application and declaration to Judge Siegel seeking a continuance, the theme of which was that she did not have enough money ($18,000) to pay her attorney’s fee, because, apparently, all her money was tied up in the Rone case which involved the foreclosure of her family home. The trial judge perceived the problem being one of scheduling around the Rone case rather than one of procuring counsel, and announced an intention to trail the case until after the Rone case finished. He was clear, however, that he would not grant a continuance.
Tong has a limited command of the English language.
Quoting from the transcript of the hearing July 9:
The second request was filed July 17. Again, it was made in a handwritten application and declaration. This is the one most significant to this appeal. According to the July 17 application, after the denial of July 9 application, Tong had “run to find the lawyer.” She found one, July 11, on Dove Street in Newport Beach -- attorney Jacqueline Staten. Tong and a “witness” (a friend named Dennis Hawks), met Staten at Staten’s office at 2 p.m. that day. They discussed the case for two hours at a nearby Coco’s restaurant. At the meeting, Staten took Tong’s file despite Tong’s request to have it copied at a local Kinko’s, promising to meet Tong on Monday, July 14 at the Los Angeles Superior Court where Staten had an early criminal calendar matter. Staten promised to meet Tong at the Los Angeles court, take Tong’s retainer check and “work with” Tong to prepare for the upcoming trial in Orange County at Tong’s “place in LA.”
Here’s the original text from Tong’s declaration on the July 11 meeting with Staten, and readers should bear footnote 3, ante, again in mind:
The ex parte application was heard July 18, with trial scheduled to begin in three days. Judge Siegel’s first substantive words (at the beginning of the hearing, no argument had been taken to that point) was that he was going to deny the request for a continuance because Staten was not able to “practice law anyway.”
Here is the relevant text:
That last comment was, however, not accurate, as the opening brief in this appeal now points out: A check of the State Bar website will show that Jacqueline Staten was not eligible to practice law as of January 13, 2008, but became eligible again on January 31, 2008, and would remain so until April 2009. That is -- she was eligible to practice law in July of 2008. She would later become ineligible again, but the latter suspension is getting a bit ahead of ourselves in this story.
On July 11, 2008, both Staten and Tong had signed Staten’s standard retainer agreement. That agreement, though, stated that it would not take effect until the client had paid the entirety of an $8,000 retainer. And it is undisputed that Tong had not paid Staten any amount.
Then again, Staten still had Tong’s file, a point Tong managed to make just a few moments after the case was called for trial on Monday, July 21, albeit in front of Judge Margines, to whom the case had been reassigned that very day. In his comments that Monday, Judge Margines appears to have been under the belief that he had no ability to grant Tong any relief. His initial sentiment was: “We are done talking about continuances.”
“The court: All right. Now, you wanted to tell me something. What is it, Ma’am?
“Ms. Tong: Can you delay that for like few week, your honor?
The balance of the hearing that day was taken up plowing through a number of in limine motions. One of those was to preclude Tong from arguing that the fees that were the basis of the debt were unreasonable because she had no lawyer as an expert witness. The court adjourned to Thursday, July 24.
But despite the trial judge’s initial comment, the court was not quite “done talking about continuances.” On Thursday morning, as court convened, Tong was still in pro per and Judge Margines had “some questions” for Tong as he was looking at the retainer contract signed by Staten and Tong. He wanted to know if she had paid Staten “any money when you retained her.” Ascertaining that Tong had not paid Staten the $8,000 called for in the written retainer agreement, Judge Margines told Tong that she had not “actually retained Ms. Staten.”
Still, as the trial judge said, there “remain[ed] the matter of the papers and filed and so on that you say she [Staten] has.” The judge quizzed Tong about 49 exhibits that had been premarked by Monday. Apparently Tong had possession of at least those exhibits. The judge asked if Tong had additional exhibits for the trial. Tong could not answer because, according to her, Staten had everything else. She couldn’t even given an example of what Staten had that was “not in the 49 exhibits.”
“The court: How many more do you have?
From there, the conversation turned to the attorney (Hamilton) who had represented Tong when she filed her cross-complaint. While Tong acknowledged that he substituted out (for her in pro per) back in February, Tong said she had thought he was going to substitute back in later.
Plaintiff’s attorney James Casello then joined the conversation and made this point: He had been trial counsel on the Urban Eco case (the main source of the fees being sued for), and the “underlying case file was approximately 14 banker’s boxes of files.” Thus, he argued, Tong probably hadn’t given her “file” to Staten, because one doesn’t usually lug 14 boxes of trial documents into a Coco’s Restaurant. That is, plaintiff’s attorney was challenging Tong’s credibility on the Staten story. The trial court, however, responded that it was “not going to make a credibility call.” And then it dropped (in the trial court’s own word), a “bombshell”:
“Mr. Casello:
Staten, said Judge Margines, had been “arrested by some police authority in Riverside, Sheriff’s Department, police, and charged with stealing money from a client’s trust fund.” That, said the judge, “would explain why Ms. Staten has not been responsive to efforts made by Judge Siegel’s staff and this court’s staff to the messages asking her to telephone the court.” The judge then told Tong that all one had to was “do a little Google search” to learn of Staten’s arrest.
The judge was right. We know from the State Bar’s own website that Staten became ineligible to practice law on April 5, 2009. (She became active again on May 14, 2009, then not eligible again on February 11, 2010.)
Despite the implicit corroboration of Tong’s stolen file story, the trial court stated: “I do not find that you have demonstrated any good cause, Ms. Tong, for the continuance.” Tong repeated, “I tell you the truth, your honor, I cannot -- I cannot go to the trial with no file, and that a true story.”
Trial proceeded. Before the jurors were called in for jury selection, the trial judge gave Tong the admonition that she was not to say anything about the missing file.
The jury found for the plaintiffs, awarding the law firm about $88,000. Tong has appealed from the ensuing judgment as well as the orders denying posttrial motions to vacate or set aside the judgment. While her notice of appeal was filed in pro per, she is represented on appeal by a law firm.
III. DISCUSSION
First, the obvious: It is one of the glories of our system of equal justice under law that pro pers are to be accorded the same treatment as parties represented by attorneys. (See Rappleyea v. Campbell (1994) 8 Cal.4th 975, 985 [“A doctrine generally requiring or permitting exceptional treatment of parties who represent themselves would lead to a quagmire in the trial courts, and would be unfair to the other parties to litigation.”]; Kobayashi v. Superior Court (2009) 175 Cal.App.4th 536, 543 [“Pro. per. litigants are held to the same standards as attorneys.”]; see also Gamet v. Blanchard (2001) 91 Cal.App.4th 1276, 1287 (dis. opn. of Bedsworth, J.) [pro pers should not be treated the same “only different”].)
In that regard, it is inconceivable that a trial judge would not have accorded an attorney whose file had been stolen because he or she lent it to another attorney (or expert) and then didn’t get it back would not receive a continuance of trial so as to allow the file to be retrieved or reconstituted. Particularly if the case had not been previously continued, and even more particularly if the opposing party could demonstrate no prejudice from a continuance.
Tong should have been accorded the same courtesy. The law doesn’t give pro pers any special favors. But it doesn’t impose on them any special penalties either.
Second, some case law: In this appeal, Tong relies heavily on Oliveros v. County of Los Angeles (2004) 120 Cal.App.4th 1389 (Oliveros). Casello & Lincoln do not mention it in their respondent’s brief.
The case is worth reviewing because it turns out to be dispositive here.
In Oliveros, a county government was sued for medical malpractice when a young mother was hospitalized for heart surgery at a county facility and ended up with brain damage. There was a dispute over whether the brain damage was the result of the mother not getting enough oxygen (if so, it would be the county’s fault) or whether the damage was done during the heart surgery itself (in which case it was a risk that could not have been prevented). (Oliveros, supra, 120 Cal.App.4th at p. 1400.)
The county contracted the defense of the case out to an experienced lawyer at a well-known medical malpractice defense firm. Several months before trial though, the experienced lawyer retired. The county then asked one of his partners, also highly experienced, to try the case. This new lawyer devoted more than 250 hours to reviewing medical records and deposition transcripts. (Oliveros, supra, 120 Cal.App.4th at p. 1392.) There was one continuance, from January to March, to complete discovery, and after that continuance there was another continuance, from March to July, because the new defense lawyer had a conflict with another trial. (Id. at p. 1392.)
But the defense lawyer would need a third one. The date that was set for trial was July 9. Six days before that, however, the defense lawyer learned that another, older, case in Compton in which he was defense counsel -- ostensibly set for trial on July 8, but which he had assumed, based on his opposing counsel’s representations, would be continued -- was going to go July 8 after all. When July 9 came, the defense lawyer asked for a continuance (the older case had commenced and was expected to last two weeks). (Oliveros, supra, 120 Cal.App.4th at p. 1393.)
The defense lawyer belonged to a fairly large medical malpractice defense firm, but all but one of that firm’s “senior trial attorneys” were themselves already in trial, and the remaining one was on vacation in Europe. None of the firm’s other lawyers had experience in cases of the complexity of the Oliveros case. And no one was prepared to try the case. (Oliveros, supra, 120 Cal.App.4th at p. 1393.)
None of the defense attorney’s predicament persuaded the trial judge in Oliveros, though. In fact, the judge was irritated that the particular defense counsel in question “‘[t]akes too many cases.’” (Oliveros, supra, 120 Cal.App.4th at p. 1393.) But in any event the trial judge thought an experienced trial attorney needed only a few days preparation. (Ibid.)
The trial judge did, however, give a de facto continuance of about six days to allow the firm to seek a writ with the Court of Appeal. The six days passed. The defense lawyer returned to the Compton trial. The Oliveros trial went undefended. And after four days of jury trial, the trial court directed a verdict resulting in a $12.5 million judgment against the county. (Oliveros, supra, 120 Cal.App.4th at p. 1394.)
The appellate court reversed the multi-million dollar verdict, in a ringing affirmation of the principle that, when the two policies collide, justice beats efficiency. In fact, the court said so twice:
“‘When the two policies collide head-on, the strong public policy favoring disposition on the merits outweighs the competing policy favoring judicial efficiency. (Cf. Cordova v. Vons Grocery Co. (1987) 196 Cal.App.3d 1526, 1532, 1533 [when evaluating dismissal of action for delay in prosecution, policy favoring expeditious administration of justice by compelling prompt and diligent prosecution of actions subordinate to policy favoring trial on merits].)’” (Oliveros, supra, 120 Cal.App.4th at p. 1395, quoting Bahl v. Bank of America (2001) 89 Cal.App.4th 389, 398-399.)
And again: “‘Accordingly, decisions about whether to grant a continuance or extend discovery “must be made in an atmosphere of substantial justice. When the two policies collide head-on, the strong public policy favoring disposition on the merits outweighs the competing policy favoring judicial efficiency.’”” (Oliveros, supra, 120 Cal.App.4th at p. 1396, quoting Hernandez v. Superior Court (2004) 115 Cal.App.4th 1242, 1246-1247.)
The Oliveros court was thus not impressed with trial judge’s decision. It lacked “balance.” (Oliveros, supra, 120 Cal.App.4th at p. 1396.) Worse, it was unrealistic. The trial court had assumed that “any person with a license to practice law, or at least one associated with a ‘big’ law firm, could come to court without any preparation and try a complicated medical malpractice case in which the plaintiff was particularly sympathetic yet liability was far from certain.” (Id. at p. 1397.) That assumption “belie[d] an understanding of the subtleties of such litigation.” (Ibid.)
The Oliveros court went on to show sympathy for the dilemma faced by the defense attorney whose scheduling conflict required him to be in two places at once: “We note as well that, while the trial court chastised Mr. Peterson for losing control of his calendar and attempting to control the court’s calendar, it is a fact of life that a trial lawyer’s time is not his own. For while trial courts are under great pressure to manage large caseloads, so too are lawyers under equally great pressure ‘to juggle trials in two or more courts, each presided over by a judge who sometimes has to trail cases or otherwise upset the lawyers’ efforts to manage their own calendars.’... Thus, the trial court was well off the mark in announcing that the scheduling conflict before him was ‘not my problem.’ To the contrary, because this scheduling conflict affected the administration of justice, it was indeed the judge’s problem, and one that he was obligated to make every effort to address in a manner which ensured the just resolution of the case before him. In the absence of evidence of a lack of good faith, the trial court as well as counsel on both sides should acknowledge the scheduling difficulties that from time to time disrupt the flow of litigation, and consider reasonable solutions that satisfy the interests of all parties.” (Oliveros, supra, 120 Cal.App.4th at p. 1397.)
The Oliveros court finished up (see Oliveros, supra, 120 Cal.App.4th at pp. 1398-1400) with three thoughts. The first was to emphasize the importance of granting continuance requests so that “‘physically able’” counsel can be present. (Id. at p. 1398.) The second referenced Chief Justice Ronald M. George’s Blue Ribbon Panel on fair and efficient administration of civil cases, which resulted in a court rule directing attention to the problem of counsel being engaged in another trial. (Id. at p. 1399.) Three, it noted that the failure to grant a continuance can be “tantamount to a terminating sanction.” (Id. at p. 1399.)
As noted, Casello & Lincoln make no attempt to deal with Oliveros. We need simply observe that at every point of comparison, Oliveros would actually favor Tong here, and thus apply a fortiori to the case at hand.
In Oliveros, the defendant was a deep pocket entity who had contracted with a big firm to represent it -- hence there was indeed something to the trial judge’s thought that someone from that firm should be able to show up for the trial. Here, Tong is a person of limited command of English (as the quotations from her applications demonstrate) and in need of resources to hire an attorney in the first place.
In Oliveros, there were no less than two continuances -- maybe two and one-half continuances if you count the six days to take the writ. Here, there had been no continuances at all before trial commenced.
In Oliveros, the defense attorney’s predicament was at least partially his own fault. It is pretty clear from that facts that he probably was taking too many cases. Here, Tong lost her file because an attorney she attempted to hire never returned it to her. That is, it wasn’t her fault.
In Oliveros, there was palpable prejudice to the plaintiff from the continuance, because the case involved no less than 43 witnesses and 18 experts. (See Oliveros, supra, 120 Cal.App.4th at p. 1397.) Here, Casello & Lincoln have identified no prejudice from any delay. In fact, the only two witnesses at trial were Casello and Lincoln themselves.
In Oliveros, a multimillion dollar trial proceeded without the presence of the county or its lawyers, which means that the county didn’t even try to present a defense at trial (either with a less experienced associate of the medical malpractice firm or a county counsel). Here, Tong at least stayed for the trial.
And then there is this sharp irony: In Oliveros, the trial judge assumed that any experienced trial attorney could, with only a few days of preparation, try a complex medical malpractice case. After all, such an attorney could cram from the file. Here, poor Tong didn’t even have a file. (And it was a file which, opposing counsel acknowledged, could easily contain 14 boxes of material.)
To be sure, if the facts were only that Tong had failed to procure counsel because of allegedly impecunious circumstances, this would be a closer case. Indeed, Casello & Lincoln’s main argument is that Tong was simply dilatory in procuring counsel. But the uncontradicted evidence -- indeed evidence corroborated by the trial judge himself -- was the attorney in question probably did fail to return the file to Tong. And given that evidence, there is no way we can read Oliveros without coming to the conclusion that the denial of Tong’s request for a continuance was an abuse of discretion.
We need only add this: While Casello & Lincoln do not address the Oliveros case, the one case they do cite, County of San Bernardino v. Doria Mining & Engineering Corp. (1977) 72 Cal.App.3d 776 (Doria Mining), is inapposite. Doria Mining was Justice Gardner’s pre-fast track opinion which self-consciously tried to administer “belated last rites to an alleged judicial philosophy which has badgered the courts of this state for years. That philosophy is usually expressed in language that it is ‘a fundamental rule that the courts should be indulgent and liberal in granting continuances.’” (Id. at p. 778.)
Doria Mining has no relevance to our case here. The big difference is that Doria Mining was a case that was already four years old when the trial date came up, and the partner in the law firm hired to represent the defendant decided that he “no longer wished to represent defendant” at a point (the opinion is not quite specific on the point) very close to trial, perhaps as close as eight days prior to it. (Doria Mining, supra, 172 Cal.App.3d at p. 782.) In Doria Mining, there was obvious prejudice to the plaintiff if a continuance had been granted, as well as possible attorney malfeasance in waiting so long then leaving his client in the lurch.
Finally, we return to the point of lack of prejudice. Casello & Lincoln suggest (albeit with no authority) that Tong’s lack of an expert witness at trial rendered harmless any abuse of discretion in not granting her request for a continuance. That point dissolves under scrutiny, though. First, there was no way that Tong had any chance of retaining an attorney without her file. Second, had a continuance been granted and she found an attorney in the interim, the attorney might have sought leave to submit tardy expert witness information that would have allowed her to have an expert witness. And in any event, had Tong been in possession of her file, she would at least have been in a much better position to contest the issue of the reasonableness of the attorney fees that made up the underlying debt, particularly if represented by a lawyer.
The idea that the lack of an expert witness precluded Tong from challenging the reasonableness of Casello & Lincoln’s fees in the underlying case is untenable. Trial judges always retain the authority, as a matter of law, to insure that attorney fees do not become unconscionable, even when it is the attorney suing the client on the contract.
CONCLUSION
We are not unaware of the ad hominem subtext that may be drawn from bits and pieces of the record, as well as more explicitly by the respondent’s brief: The idea is, explicitly stated, that Tong is a “serial client” (our phrase, not respondent’s) whose modus operandi is to hire lawyers and not pay them, then turn her lack of a lawyer to her own advantage.
The answer to that is: Maybe. We do note that the ensuing year and one-half since the November 2008 notice of appeal will have given Tong plenty of time to get her financial house in order, recover (or reconstitute) the file, and retain counsel or learn to present her case in pro per. In short, this reversal is her continuance. If the next time, there are circumstances which, for sake of argument, indicate Tong is playing games by retaining then not paying successive attorneys, there will be plenty of evidence to support a trial court’s exercise of discretion not to grant a continuance.
But that’s getting ahead of where matters stand today. As it is, the judgment is reversed. Tong will recover her costs in this appeal.
WE CONCUR: RYLAARSDAM, J., FYBEL, J.
“The court: [referring to the Rone matter] LC078351 and in front of Judge Harwin. I know Judge Harwin. What I’ll do is I’ll have my clerk call the judge in that courtroom in Van Nuys. If you’re actually in trial, I would be prepared to trail this case for a couple of days but I’m not going to grant a continuance. In other words, as soon as that case is finished, this case will start. And if that case doesn’t go to trial or is continued, then I expect to see you here on the 14th.”
“Attorney Staten was discussed to me and Mr. Hawks for about 2 Hours at the Coco Restaurant. We were have dinner together at that date, July 11 2008. After that she took all the primary documents of the case to go home to prepare for the trial. I and Mr. Hawks told her wait for I go to Kinko to make a copy for her, because in a hurry time I just bring with me all the original documents I have.
“She said don’t be worry we have a shortly time to work, let her take home to read on that and she will let her assistance to copy and will bring to me in July 14 08; July 14 -08, Monday she have a court date of criminal Court LA downtown then she will see me at LASC after 10.30 a.m. to take my check and will work with me to prepare to the trial at my place in LA.”
“I’m going to deny the request for a continuance. The attorney who you [speaking to Tong] [say] you’ve retained and I don’t believe you tried to contact her to verify this and apparently she’s not able to practice law anyway. We tried [probably referring to any attempt to contact Staten].”
“Ms. Tong: Your honor, the problem is when doing the trial, then I need the lawyer represent for me. I came to Ms. Jacqueline Staten. Then I sign agreement fee with her. She sign. I sign. And she took all my file. Right now, I didn’t have my file with me -- file with me and the document I gave to her. And she says she will copy and she give me, and she give me -- come to -- come to court for one.”
“The court: No. I don’t want to hear anymore about your motion to continue. I mean, Judge Siegel
“Ms. Tong: Well, I don’t have the file with me. That lawyer took that file.
“The court: Ms. Tong, do you understand me, ma’am? We are done talking about continuances. We are going to be in trial, and I’m just giving you the schedule. So we will be in trial on this Thursday and Friday, and if necessary, we’ll go into Monday.”
“Ms. Tong: I don’t know because she took that with her, all documents. You read that, your Honor.
“The court: Ms. Tong, we are not there yet. Are you telling me that the additional exhibits are unavailable because Ms. Staten has them?
“Ms. Tong: Yeah.”
“....
“.... All I’m saying, this is a pattern with her. That she will take the position that someone has taken from her so that she can have an excuse for not producing.”
That said, Casello & Lincoln’s argument that the malpractice cross-complaint against them was unmeritorious appears correct on such facts as we have in this record. Indeed, if they are correct that certain facts are undisputed (namely that the cross-defendants they dismissed in the underlying Urban Eco decision had already been released prior to their retention), then the matter would appear to be ripe for summary judgment when the case is remanded. But that’s assuming, of course, that the facts really are undisputed. At this stage in the proceedings we don’t know what a competent attorney might be able to do for Tong in this regard.