Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Alameda County Super. Ct. No. 2002073223
SIMONS, Acting P. J.
Machond Fields (appellant) and her aunt, Gloria Perkins (respondent), dispute ownership of several real properties that were originally owned by Lamar and Palee Chatman. The Chatmans are appellant’s grandparents and respondent’s parents. After a two-day trial on appellant’s quiet title and cancellation of deed action, judgment was entered in favor of respondent. Appellant appeals, asserting the trial court abused its discretion by (1) denying her request for a continuance of the trial, thereby requiring her to proceed without counsel, and (2) denying her motion for a new trial. We affirm the judgment.
Factual Background
Lamar and Palee Chatman owned four pieces of real properties located in the City of Oakland: (1) the 1414 Property, (2) the 1422/1424 Property, (3) the 1426 Property, and (4) the 954 Property. In 1977, Lamar and Palee Chatman executed three deeds entitled “Individual Quitclaim Deed,” transferring their interest in three of the properties to their children and grandchildren, as follows: (1) the 1414 Property to their daughter, respondent, “as trustee” for three of their grandchildren including appellant; (2) the 1422/1424 Property to respondent, “as trustee” for seven of their children and grandchildren including appellant; and (3) the 1426 Property to respondent and four other individuals. In 1982, after the death of Palee Chatman, Lamar Chatman executed a grant deed transferring his interest in the 954 Property to 11 of his children and grandchildren including appellant and respondent.
The record does not contain any deeds relating to the 1426 Property. However, respondent asserts, and appellant does not dispute, that the Chatmans executed a quitclaim deed transferring their interest in the 1426 Property to respondent and four other individuals in 1977.
In 1984, a fire substantially destroyed the 1414 Property, and respondent used the insurance proceeds she received to make a down payment toward the purchase of another real property located in Oakland, the 5483 Property. Respondent paid off the entire mortgage on the 5483 Property.
In 1986, Lamar Chatman executed a grant deed, transferring his interest in the 1414 Property, the 1422/1424 Property, the 1426 Property, and the 954 Property to respondent. The grant deed notes: “This is a Deed from Father to Daughter and is to correct mistakes made in the following deeds: [the three individual quitclaim deeds recorded in 1977 for the 1414, 1422/1424 and 1426 Properties, and the individual quitclaim deed recorded in 1982 for the 954 Property].” Also in 1986, most of the children and grandchildren named in the original deeds for the 1422/1424 Property and the 954 Property executed quitclaim deeds transferring any interest they had in those properties to respondent. Appellant’s name and signature appeared on the quitclaim deeds for the 1422/1424 Property and the 954 Property.
Appellant testified at trial that she never signed a quitclaim deed. Appellant’s sister testified that she signed appellant’s name to the deeds because appellant “didn’t want to sign the paper over to my auntie [respondent].” Respondent testified that she did not recall seeing appellant sign the quitclaim deeds, and did not remember seeing anyone else sign her name to the deeds. She stated that she had managed and maintained all of the real properties throughout the years. Numerous children and grandchildren of Lamar and Palee Chatman, including appellant and her children, lived in the properties at various times, for no rent, when they needed a place to stay.
Procedural Background
Appellant filed a quiet title and cancellation of deed action in November 2002, seeking to establish her rights to all five properties. Both parties were represented by counsel, and the case proceeded through discovery and several case management hearings for about three years. After an original trial date was vacated by stipulation of the parties and order of the court, the trial was scheduled for July 28, 2006. Four weeks before trial, on June 30, 2006, appellant’s attorney filed an ex parte motion to withdraw as counsel for health reasons and other, “ancillary” reasons. While the motion was pending, appellant signed and filed a substitution of attorney, substituting herself in as her own attorney. She then filed an ex parte application for a continuance of the July 28, 2006 trial date based on her counsel’s withdrawal from the case shortly before trial. The trial court denied her application.
Appellant sought new counsel, and on July 28, 2006, attorney Aisha Othman specially appeared in court with appellant, on appellant’s behalf. Othman requested a continuance based on the recent withdrawal of the prior attorney, and stated: “There is no way I can tell that whether I can take the case or not, but most likely I do.” The trial court denied the request for continuance, stating: “[W]e don’t have a procedure where a person can walk in on the day of the trial and make an oral motion for a continuance.” The case was placed on the court’s trial standby calendar. The case trailed on the standby calendar for several days, and on August 4, 2007, when respondent and her counsel failed to appear for trial, the trial court vacated the trial date and scheduled another case management conference.
The case management conference was held on September 15, 2006. Othman specially appeared as counsel for appellant. Following an unsuccessful attempt to resolve the case through settlement, the trial court set the case for trial on October 20, 2006, and issued the following order (the September 15 order): “Ms. Aisha Othman specially appearing for plaintiff at this time. Ms. Othman shall file substitution and shall formally appear for in pro per plaintiff forthwith and shall be prepared to commence trial on the date set forth above, said date having been set at the request and convenience of Law Offices of Aisha Othman.”
When the case was called for trial on October 20, 2006, appellant appeared in court, without Othman. The master calendar judge assigned the case to a department for trial, and the trial judge ordered appellant to proceed without counsel, noting she had been propria persona since June 30, 2006. Appellant informed the court that she had been “abandoned” by her attorney. Neither party informed the trial judge about the September 15 order, and trial commenced on October 23. Judgment was entered in favor of respondent on October 24.
On November 8, 2006, appellant obtained new counsel and filed a motion for a new trial, claiming her attorney had “abandoned” her. In opposing the motion, respondent submitted declarations from her counsel and from Othman. Respondent’s counsel stated in his declaration: “At the case management conference, Ms. Othman represented . . . that [appellant] had still not formally retained her, because of deficient retainer payment . . . [and] she still did not have [appellant’s] complete file.” At the hearing on the motion for new trial, the trial court stated it had not been aware of the September 15 order requiring Othman to appear at trial on appellant’s behalf. Relying on respondent’s counsel’s declaration, the trial judge interpreted the September 15 order to mean that Othman was required to appear at trial if appellant made the requisite payment. The trial judge denied appellant’s motion for a new trial, and appellant filed a timely notice of appeal.
Respondent asserts the appeal must be dismissed because the denial of a motion for new trial is not an appealable order. However, the notice of appeal clearly shows appellant is appealing from the underlying judgment.
Discussion
I. The Trial Court Did Not Abuse Its Discretion in Denying Appellant’s Motion for a Continuance.
Appellant asserts the judgment must be reversed because the trial court abused its discretion in denying her motion for a continuance, thereby requiring her to proceed without trial counsel. We disagree.
California Rules of Court, rule 3.1332 provides: “(a) To ensure the prompt disposition of civil cases, the dates assigned for a trial are firm. All parties and their counsel must regard the date set for trial as certain. [¶] (b) A party seeking a continuance of the date set for trial, whether contested or uncontested or stipulated to by the parties, must make the request for a continuance by a noticed motion or an ex parte application . . ., with supporting declarations. The party must make the motion or application as soon as reasonably practical once the necessity for the continuance is discovered. [¶] (c) 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 on an affirmative showing of good cause requiring the continuance. Circumstances that may indicate good cause include: [¶] . . . [¶] (3) The unavailability of trial counsel because of death, illness, or other excusable circumstances; [¶] . . . or [¶] (7) A significant, unanticipated change in the status of the case as a result of which the case is not ready for trial.”
“In ruling on a motion or application for continuance, the court must consider all the facts and circumstances that are relevant to the determination. These may include: [¶] . . . [¶] (2) Whether there was any previous continuance, extension of time, or delay of trial due to any party; [¶] . . . [¶] (4) The availability of alternative means to address the problem that gave rise to the motion or application for a continuance; (5) The prejudice that parties or witnesses will suffer as a result of the continuance; [¶] . . . [¶] (10) Whether the interests of justice are best served by a continuance, by the trial of the matter, or by imposing conditions on the continuance; and (11) Any other fact or circumstance relevant to the fair determination of the motion or application.” (Cal. Rules of Court, rule 3.1332(d).)
The decision whether to grant a motion for a continuance is within the trial court’s sound discretion and will not be disturbed on appeal absent a clear showing of abuse of discretion. (Forthmann v. Boyer (2002) 97 Cal.App.4th 977, 984.) The trial court’s discretion in granting or denying a continuance in a particular case is broad. (Cade v. Mid-City Hosp. Corp. (1975) 45 Cal.App.3d 589, 599.) “ ‘An abuse of discretion occurs “where, considering all the relevant circumstances, the court has exceeded the bounds of reason or it can fairly be said that no judge would reasonably make the same order under the same circumstances.” [Citation.]’ [Citation.]” (In re Marriage of Bower (2002) 96 Cal.App.4th 893, 898-899.) On appeal, the burden is upon the party that was denied a continuance to show an abuse of discretion. (Forthmann, at p. 985.)
Appellant contends a continuance was required because her attorney had abandoned her. However, the record shows that appellant had been representing herself for approximately four months. Thus, she had more than enough time to secure an attorney of record, yet she engaged the services of Othman, who made only special appearances on her behalf. She asserts the case management judge’s September 15 order unambiguously required Othman to appear at trial, but the record is clear that appellant did not inform the trial judge of the existence of the September 15 order at the time she requested a continuance. In evaluating the propriety of a trial court’s ruling, we consider the information the parties provided to the court prior to the ruling (Hansen v. Owens-Corning Fiberglas Corp. (1996) 51 Cal.App.4th 753, 761), not following the ruling. Because appellant did not inform the trial judge of the September 15 order until after the trial court ruled on the motion for a continuance and the case proceeded through trial, she cannot now assert that the September 15 order required the trial court to grant her motion for a continuance.
At oral argument, appellant’s counsel explained that appellant may not have been aware of the September 15 order at the time she requested a continuance, as it appears the order was made in chambers, outside the presence of the parties. However, the record does not reflect that the parties were not present at the time the order was made, and, more significantly, appellant did not state in her declaration in support of her motion for a new trial that she was not present when the order was made, or that she was unaware of the order.
In addition, when explaining why she was representing herself on the date set for trial, appellant stated, “I’m representing myself, because I have to come here today and give [Othman] the check,” suggesting appellant had no trial counsel because she had not made the requisite fee payment. While a litigant certainly has the right to choose an attorney of her own liking, she must nevertheless exercise reasonable diligence to retain the attorney. Appellant was not abandoned by Othman, who never represented her as her attorney of record. And, in denying the motion for a continuance, the court was entitled to consider appellant’s failure to retain Othman or another attorney as her trial counsel.
Further, by the time appellant informed the court on the day of trial that she was not ready to proceed, approximately four years had passed since the filing of her complaint. (See County of San Bernardino v. Doria Mining & Engineering Corp. (1977) 72 Cal.App.3d 776, 783 [in denying motion for continuance, trial judge could properly consider that case had been pending for over four years].) The trial date had been previously continued on at least two occasions, and the minutes from a February 24, 2006 case management conference in which the trial was continued to July 28, 2006, stated: “This will be the final trial date, there shall be no further continuances.” The real properties had been encumbered by a lis pendens while the case was being litigated. Witnesses were present in court. In the interest of fairness and judicial efficiency, neither the court nor respondent was required to wait further while appellant sought counsel to represent her at trial. (See Maynard v. Bullis (1950) 99 Cal.App.2d 805, 807 [plaintiff was not entitled to continuance for new attorney to prepare for trial, where he had two months to retain new counsel, and despite the fact that eight other attorneys had refused to represent him].)
Oliveros v. County of Los Angeles (2004) 120 Cal.App.4th 1389 (Oliveros) and Hernandez v. Superior Court (2004) 115 Cal.App.4th 1242 (Hernandez), on which appellant relies, are distinguishable because in both of those cases, the parties had attorneys of record who, for legitimate reasons, were unable to appear at trial. (Oliveros, at pp. 1392-1393 [scheduling conflict of counsel of which he could not have known earlier than the week before trial]; Hernandez, at p. 1245 [attorney became terminally ill and died shortly before trial].) In addition, in Oliveros, the unrepresented defendants did not present any evidence, and the trial court entered a directed verdict against them in the approximate amount of $12.5 million. (Oliveros, at p. 1393.) In Hernandez, the trial was scheduled for a date on which neither the new attorney nor the plaintiff would be able to attend, such that the plaintiff would not be able to present his case unless the trial was continued. (Hernandez, at p. 1245.) In contrast, here, appellant was present at trial, made an opening statement and closing argument, testified, called five witnesses to the stand, conducted direct and cross-examination, and introduced several exhibits.
Further, Oliveros and Hernandez based their decisions in part on the trial court’s complete failure to balance the competing interests of judicial efficiency and deciding cases on their merits. (Oliveros, at p. 1395 [“the record is devoid of the balancing of these competing interests”]; Hernandez, at p. 1248 [“That balance is missing here.”].) Here, the record is not “devoid of the balancing of these competing interests.” The trial court looked into appellant’s relationship with Othman, asking whether she had retained her, and when she had made payments to her. It asked respondent’s counsel how a continuance would prejudice his client. It noted that the case had previously been continued for the purpose of allowing appellant to seek representation, and that appellant had been in propria persona for almost four months.
Appellant also makes a constitutional argument, asserting the trial court’s denial of a continuance was an abuse of discretion because it violated her constitutional right to counsel. Civil litigants, however, have only the right to appear by counsel “retained at [their] own expense.” (Kim v. Orellana (1983) 145 Cal.App.3d 1024, 1027, citing U.S. Const., 14th Amend., § 1; Cal. Const., art. I, § 7, subd. (a).) Thus, appellant, who does not dispute that she did not make the payments necessary to retain Othman as her trial counsel, is without remedy.
The trial court did not abuse its discretion in denying appellant’s request to continue the trial.
II. The Trial Court Did Not Abuse Its Discretion in Denying Appellant’s Motion for a New Trial.
Code of Civil Procedure, section 657, subdivision (1), provides that a verdict may be vacated and a new or further trial granted under certain circumstances, including “[i]rregularity in the proceedings of the court, jury or adverse party, or any order of the court or abuse of discretion by which either party was prevented from having a fair trial.” Subdivision (3) permits a new trial where there has been “[a]ccident or surprise, which ordinary prudence could not have guarded against.” Whether to grant or deny a motion for a new trial is a matter within the sound discretion of the trial court and will not be disturbed on appeal unless a clear abuse of discretion is shown. (Schelbauer v. Butler Manufacturing Co. (1984) 35 Cal.3d 442, 452.) When a motion for new trial is based on an attorney’s misconduct, the trial court’s conclusion in the matter will not be disturbed unless, under all the circumstances, it is “plainly wrong.” (Cope v. Davison (1947) 30 Cal.2d 193, 203.)
Appellant asserts the trial court abused its discretion in denying her motion for a new trial because Othman’s misconduct in abandoning her was an irregularity that prevented her from having a fair trial. She also asserts that a new trial was warranted because Othman’s failure to appear constituted “ ‘[a]ccident or surprise, which ordinary prudence would not have guarded against.’ ” She relies primarily on the September 15 order and states that because the order unambiguously required Othman to appear at trial, her failure to appear was an irregularity or surprise.
Appellant’s motion for a new trial was based essentially on the same ground as her motion for a continuance—that her attorney had abandoned her. A motion for a new trial may be properly denied when a party raises an issue previously litigated, unless it is based on new law or facts the party did not know, or could not have previously known. (People v. Wisely (1990) 224 Cal.App.3d 939, 948.) Appellant, who informed the trial judge of the September 15 order for the first time when she filed her motion for a new trial, has not shown that she did not know, or could not have known, of the September 15 order at the time the same issue of attorney abandonment was presented to the trial court for determination at the motion for a continuance. The trial court did not abuse its discretion in denying appellant’s motion for a new trial, which was based primarily on information that could have been, but was not, presented to it in a timely manner. (See also Kauffman v. De Mutiis (1948) 31 Cal.2d 429, 432 [where a motion for a new trial is based on surprise, a party is considered to have waived her right to a new trial unless she acted “at the earliest possible moment” in informing the court of the situation constituting surprise].)
In any event, the September 15 order does not support appellant’s position that the motion for a new trial should have been granted. According to respondent’s counsel’s declaration, Othman informed the case management judge that she was only making a special appearance because appellant “had still not formally retained her, because of deficient retainer payment” and because she had not received appellant’s complete file. At the motion for new trial, the trial court could, therefore, reasonably determine that the September 15 order requiring Othman to appear at trial was contingent upon the payment of fees. Appellant does not dispute that she knew she was required to pay Othman in order to retain her as her trial counsel, and does not assert that she made the requisite payment. Thus, Othman’s actions in not appearing for trial was not an “[i]rregularity in the proceedings” requiring a new trial.
In addition, to demonstrate the “[a]ccident or surprise” warranting a new trial, a party must show a “ ‘condition or situation in which a party to a cause is unexpectedly placed, to his injury, without any default or negligence of his own.’ ” (Kauffman v. De Mutiis, supra, 31 Cal.2d at p. 432, italics added.) Without having made the requisite payments, or without having ensured that Othman had her complete file, appellant could not have reasonably expected Othman to represent her at trial.
Disposition
The judgment is affirmed. Respondent shall recover her costs on appeal.
We concur: GEMELLO, J., NEEDHAM, J.