Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 04AS03337
BLEASE, Acting P. J.
Plaintiff Anna Chambliss appeals from an order dismissing her medical malpractice action against the Regents of the University of California (Regents). The trial court dismissed the action pursuant to Code of Civil Procedure section 581, subdivision (b)(5), which provides for the dismissal of an action when one party fails to appear for trial and the other party requests dismissal.
Prior to the date set for trial, plaintiff had requested a continuance because of alleged discovery abuses. The trial court denied the motion. Plaintiff now claims the trial court abused its discretion in denying that motion, and abused its discretion in failing to continue the trial after it became aware of plaintiff’s unavailability due to illness. We shall conclude there was no abuse of discretion, and shall affirm the order of dismissal.
FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff filed this action because she developed a hemopneumothorax (an accumulation of blood and air between the linings of the lung) after the University of California Davis Medical Center (UCDMC) performed a procedure on her to insert a hemodialysis catheter. Plaintiff hired her sister, Amanda Metcalf, as her attorney to represent her in this matter the day after her surgery. In April 2004, prior to filing the complaint in this action, plaintiff received a portion of her UCDMC medical records from a third party records service. The procedure was performed on August 22, 2003, and plaintiff commenced her action on August 18, 2004.
The record does not contain the complaint. The underlying facts are taken from the Regents’ opposition to plaintiff’s motion to continue the trial.
Plaintiff served discovery requests in April 2005. The Regents’ attorney concedes he was unable to respond to these requests on time, and that plaintiff’s counsel agreed to an extension of time, allowing him to provide discovery in the latter part of July 2005. When the responses were not received by the extended deadline, plaintiff filed a motion to compel, which the trial court granted on August 30, 2005, awarding sanctions as well. The Regents’ responses had been provided by the time of the hearing.
Plaintiff also had trouble scheduling depositions. Plaintiff claimed the Regents’ attorney did not respond to her correspondence requesting confirmation of the deposition dates. Counsel for the Regents claimed plaintiff’s attorney had been dilatory in seeking discovery, and had herself cancelled the scheduled depositions.
On July 29, 2005, the trial date was set for November 7, 2005. On October 13, 2005, plaintiff filed her motion to continue the trial date and reopen discovery. The trial court issued its tentative ruling as follows:
“After carefully reviewing the filings of the parties and the records in this case, the court finds that there is no basis for a continuance. The case will be approximately 15 months old on the scheduled trial date. This should have been sufficient time for both parties to conduct necessary discovery, retain experts and prepare for trial. Plaintiff asserts that defendants were not cooperative in responding to discovery requests or the scheduling of expert depositions and were in one instance sanctioned for failing to timely respond.
The court finds defendants’ responses to discovery requests in this case do not establish grounds for a trial continuance. With respect to the scheduling of expert depositions, the court notes that there was a lot of give and take between the parties and that plaintiff’s counsel canceled scheduled depositions herself on various occasions. The court finds that plaintiff’s attempt to continue trial on the court day before trial must be denied. The court further finds that plaintiff’s request to re-open discovery and compel expert witness depositions must also be denied.”
On Friday, November 4, 2005, the trial court heard the motion to continue the trial. Near the end of the hearing, plaintiff’s counsel informed the court that plaintiff had been taken to the hospital on November 3, 2005, but that she had no information as to when plaintiff would be discharged. The trial court told plaintiff’s counsel “that doesn’t really help me. . . . when you come on the Seventh, [the first day of trial] if the [plaintiff] is not available and you have the declaration from the doctor that they’re not available, et cetera, you know, we may be addressing the thing on the Seventh . . . .” The trial court then stated, “Ms. Metcalf, the thing that kills you is, you know, you canceling those depositions yourself.”
The trial court ruled to confirm the tentative ruling and stated: “Obviously, when you show up on the Seventh if your client is medically unable to go forward, then that’s another issue . . . . But that’s not going to change the analysis of the discovery status of the case.” At that point, plaintiff’s counsel told the court that it was essentially dismissing the case because her sister had discharged her as counsel.
On the day set for trial, November 7, 2005, plaintiff’s daughter appeared and informed the court that her mother, who was now representing herself, was in the hospital. The court found no record of substitution of counsel in the court file. The court ordered the matter to trail to November 8, at 8:30. On November 8, plaintiff’s daughter filed a declaration that her mother had discharged her prior attorney, and that plaintiff was hospitalized. She gave the court a note from a Doctor Agaiby, stating that plaintiff had been admitted to Sutter General Hospital on November 4, but giving no estimate as to how long she would be in the hospital. The court ordered the trial to trail to November 14. On November 14, neither plaintiff nor anyone on her behalf made an appearance. Defendant moved to dismiss the action and the trial court granted the motion.
On December 1, 2005, plaintiff filed a declaration stating she had been hospitalized until November 9, and had been housebound until November 25. She requested the court grant her additional time to locate a new attorney or proceed representing herself. On December 22, 2005, the trial court signed the order of dismissal.
DISCUSSION
I
Continuance for Discovery Abuses
Plaintiff argues the trial court should have granted her request for a continuance because of the Regents’ discovery abuses. We disagree.
The trial court exercises its discretion in ruling on requests to continue trial dates and extend discovery. (Hernandez v. Superior Court (2004) 115 Cal.App.4th 1242, 1246.) The trial court’s exercise of its discretion will not be disturbed in the absence of clear abuse appearing on the record. (Forthmann v. Boyer (2002) 97 Cal.App.4th 977, 984.) The complaining party has the burden on appeal of demonstrating from the record that an abuse of discretion has occurred. (Id. at p. 985.) The granting of continuances is not favored, and the party requesting a continuance must make a proper showing of good cause. (Foster v. Civil Service Com. (1983) 142 Cal.App.3d 444, 448.)
Circumstances indicating good cause include: (1) unavailability of a witness, party or counsel because of death, illness, or other excusable circumstances; (2) substitution of trial counsel where such substitution is required in the interest of justice; (3) the addition of a new party; (4) “[a] party’s excused inability to obtain essential testimony, documents, or other material evidence despite diligent efforts;” and (5) a significant and unanticipated change in the case status. (Rules of Court, rule 3.1332 (c)(1-7).)
The trial court apparently found that plaintiff’s inability to obtain evidence was neither excused, nor occasioned despite diligent efforts. Plaintiff’s motion for continuance did not set forth precisely what evidence she would be unable to present, or how such evidence was essential to her case. Instead, her motion contained a generalized recounting of discovery responses that were not timely and the parties’ disputes over the time and place for conducting certain depositions. However, plaintiff’s counsel admitted at the hearing that counsel for the Regents never told her that he refused to produce his clients for deposition.
We cannot say on this record that the trial court abused its discretion. Plaintiff’s reasons for requesting a continuance had nothing to do with her illness or the unavailability of trial counsel. She argued only that the Regents had engaged in discovery delays that prevented her from preparing her case. Plaintiff’s claim that she could have prepared her case but for the bad faith tactics of the Regents is not persuasive. As the Regents note, plaintiff’s sister was retained to represent her from the time the alleged injury occurred, which was over two years before the trial date, and Ms. Metcalf, herself, was the one who cancelled the depositions she was trying to take.
II
Continuance Because of Plaintiff’s Illness
Plaintiff argues the trial court should have continued the trial because of her inability to attend due to illness. However, plaintiff’s motion to continue the trial was not based upon her illness, but only upon the Regents’ alleged discovery abuses.
The trial court trailed the trial of this matter twice, during which time plaintiff could have either appeared, or moved upon adequate evidence for a continuance because of illness. On November 8, 2005, plaintiff’s daughter brought her own declaration stating that her mother was ill, and brought a doctor’s note stating as of November 6, 2005, plaintiff was hospitalized. The trial court trailed the matter for six days. On November 14, no one appeared on plaintiff’s behalf. Plaintiff never presented a signed declaration from her doctor, much less a doctor’s declaration stating when she would be able to participate in the trial. Not until after the trial court had already ruled on the motion to dismiss did plaintiff herself present a declaration indicating that her inability to attend any trial had extended to November 25.
Prior to the dismissal of the case for failure to appear at trial, plaintiff made no other formal motion to continue the trial. The court cannot have abused its discretion in refusing to grant a motion that was never made.
DISPOSITION
The judgment (order of dismissal) is affirmed. Respondents shall recover costs on appeal.
We concur: HULL, J., BUTZ, J.