Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. GC037811.C. Edward Simpson, Judge. Reversed in part; affirmed in part.
Law Offices of Lorraine Howell and Lorraine Howell for Plaintiff and Appellant.
Law Offices of Frailey & Associates, Dale C. Frailey, Gene M. Burke for Defendant and Respondent.
ARMSTRONG, J.
Plaintiff Diane Tang appeals from the judgment in favor of defendant Dale C. Frailey in her lawsuit for attorney malpractice. She claims that the trial court's denial of her motion to re-open discovery to allow new counsel to prepare for trial constituted an abuse of discretion and resulted in her inability to prosecute her case. We agree and reverse.
Plaintiff's request for judicial notice are denied.
Plaintiff was in a car accident with Ching Yu in November 2003. She suffered serious injuries, including temporary blindness.
Plaintiff quickly retained defendant to represent her in her attempt to recover compensation for her injuries. When she returned home from the hospital, and while she was still blind, she signed a retainer agreement given to her by one of defendant's non-attorney employees, who failed to fully explain to her what she was signing. She never met with defendant throughout the proceedings, but instead communicated solely with defendant's secretary, office manager and assistants. On the legal advice of these unlicensed persons, in September 2005, plaintiff settled with Ching Yu's insurance company for a sum which did not fully compensate her for her injuries. Plaintiff later discovered that some documents in defendant's files contained her forged signature, including one regarding a release.
Plaintiff retained attorney Arthur G. Lawrence, who filed this lawsuit against defendant for legal malpractice on September 20, 2006. The crux of the complaint was that defendant failed to adequately investigate the merits of her case, including the extent of her injuries, and pressured her to settle the matter for less than it was worth.
The complaint recited causes of action for constructive fraud, breach of fiduciary duty and negligent representation as well, but the primary right of action was for professional negligence.
Trial was initially set for October 2007, but both parties stipulated to a continuance to February 11, 2008, with discovery to be completed 30 days before that date, pursuant to Code of Civil Procedure section 2024.020. On or about July 25, 2007, defendant served Mr. Lawrence with a set of Special Interrogatories and a Supplemental Demand for Production of Documents to Elicit Later Acquired Materials. Mr. Lawrence requested, and was granted, an extension of time to respond, initially until September 14, 2007, and subsequently until October 8, 2007. On September 18, 2007, Mr. Lawrence was suspended from the practice of law for failure to pass the MPRE exam. Thus, Mr. Lawrence did not respond to the discovery requests.
Prior to his suspension, Mr. Lawrence had served several of defendant's employees, as well as defendant himself, with deposition notices. Defendant objected to the depositions of his employees; his own deposition was scheduled to take place on September 20, 2007. That did not happen, as Mr. Lawrence was suspended two days before the scheduled proceeding.
Plaintiff did not succeed in retaining new counsel until November 28, 2007, when Ollie P. Manago filed a substitution of attorney. Ms. Manago's first efforts on the case were to respond to defendant's two motions to compel discovery, which were filed after Mr. Lawrence was suspended and were calendared for hearing the following day, on November 29, 2007. Additionally, Ms. Manago was required, in a very short time period, to prepare plaintiff's responses to defendant's special interrogatories and documents production request, to prepare plaintiff for her deposition, which was scheduled for December 27, 2007, and to generate discovery requests on plaintiff's behalf. Defendant objected to these discovery requests from plaintiff's new counsel, on the basis that they would be due after the January 13, 2008 discovery cutoff date.
On January 11, 2008, plaintiff filed an ex parte application for Motion for Continuance of Trial and Motion to Reopen or Extend Discovery. A hearing on the motions was held on January 18, 2008.
The trial court opened the hearing by addressing defendant's counsel as follows: "Mr. Hoodack, I'm afraid that I am just going to have to give the plaintiffs an opportunity to do some discovery and get ready to try the case. I can't penalize the plaintiff for what happened to Mr. Lawrence, their prior counsel." Mr. Hoodack objected, arguing that "By granting what you're going to grant is, one, you're allowing the plaintiff to start all over again, and depending on what their discovery is, we're going to have to now get different experts, do different depositions and, your honor, in reality you're putting us back to square one with the plaintiff starting her discovery." Mr. Hoodack also argued that Ms. Manago had had sufficient time to complete discovery: "Miss Manago has known about this since the beginning of November though she doesn't do her substitution of attorney until the end of November, she had November, she had December to bring the motions. [And] Mr. Lawrence could have done all the discovery he wanted to do. He didn't do it." Mr. Hoodack's characterization of the circumstances, including Mr. Lawrence's efforts on plaintiff's behalf, were not completely accurate, and the trial court did not permit Mr. Lawrence, who was present at the hearing, to rebut Mr. Hoodacks' representation of the facts. Thus, based on defendant's representation that Mr. Lawrence had conducted no discovery whatsoever prior to his suspension, the trial court granted the motion for continuance, but denied plaintiff the opportunity to conduct further discovery. The minute order stated: "Plaintiff has had ample opportunity to conduct discovery while her prior counsel Mr. Arthur Lawrence was an active member of the state bar. Plaintiff should not be prejudiced by Mr. Lawrence's September, 2007 suspension from the practice of law. Her new counsel should have an opportunity to become familiar with the file in preparation for trial. Defendants, however, should not be subject to discovery which should have occurred during Mr. Lawrence's representation."
Plaintiff unsuccessfully sought reconsideration of the motion to extend or reopen discovery. Thus, when the case was called for trial, plaintiff explained that she was not prepared to try the case, and the court dismissed the case for failure to prosecute.
Plaintiff timely appealed the order denying her motion to reopen or extend discovery.
DISCUSSION
A motion to extend discovery, like a motion for a continuance, lies within the sound discretion of the trial court and may be overturned only if it is shown that discretion has been abused. (Ohmer v. Superior Court (1983) 148 Cal.App.3d 661, 666.) "'The trial judge must exercise his discretion with due regard to all interests involved, and the refusal of a continuance which has the practical effect of denying the applicant a fair hearing is reversible error. [Citations.]'" (Oliveros v. County of Los Angeles (2004) 120 Cal.App.4th 1389, 1395, quoting In re Marriage of Hoffmeister (1984) 161 Cal.App.3d 1163, 1169.) '"To exercise the power of judicial discretion all the material facts in evidence must be both known and considered, together also with the legal principles essential to an informed, intelligent and just decision.'" (In re Cortez (1971) 6 Cal.3d 78, 85-86, fn. omitted.)
Code of Civil Procedure section 2024.050, subdivision (b) provides that, in ruling on a motion to extend discovery, "the court shall take into consideration any matter relevant to the leave requested, including, but not limited to, the following:
"(1) The necessity and the reasons for the discovery.
"(2) The diligence or lack of diligence of the party seeking the discovery or the hearing of a discovery motion, and the reasons that the discovery was not completed or that the discovery motion was not heard earlier.
"(3) Any likelihood that permitting the discovery or hearing the discovery motion will prevent the case from going to trial on the date set, or otherwise interfere with the trial calendar, or result in prejudice to any other party.
"(4) The length of time that has elapsed between any date previously set, and the date presently set, for the trial of the action."
Similarly, California Rules of Court, rule 3.1332(d) includes the following among the factors to be considered in ruling on a motion for a continuance:
"...
"(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;...
"(7) The court's calendar and the impact of granting a continuance on other pending trials;...
"(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."
Moreover, subsection (c) of rule 3.1332 states: "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."
Plaintiff claims that the trial court abused its discretion in granting only the continuance motion while refusing to extend discovery so that she could use the additional time which the court concluded that she needed in order to prepare the case for trial. She argues that the same factors which the trial court found weighed in her favor with respect to the continuance applied with equal force to the motion to extend discovery. Thus, plaintiff relies on Hernandez v. Superior Court (2004) 115 Cal.App.4th 1242 to argue that the trial court's grant of the continuance while denying her the ability to use the extra time to conduct discovery was arbitrary and capricious, and prevented her case from being decided on its merits.
In Hernandez, the plaintiff's lawyer died of pancreatic cancer several months before the trial was to begin, and a month after his supplemental expert witness list was due. The plaintiff sought to continue the trial date and extend discovery, in order to retain new counsel and designate an expert on liability issues. The defendant opposed the motion, contending that he would be "at a disadvantage" if plaintiff were permitted to designate additional experts, due to increased costs. (Id. at p. 1245.) The trial court granted a 30-day continuance, but did not extend discovery to allow the petitioner to designate additional experts. On appeal, the court found that the trial court had abused its discretion for failing to take into account the fact that a lawyer's terminal illness would affect his trial preparation. (Id. at p. 1247.) The court also noted that the trial court relied on the defendant's conclusional claim that an extension would prejudice him, without any evidence to support the claim. The Hernandez court concluded that when a trial court finds good cause for granting a continuance of a trial date, "[t]he same circumstances should generally constitute good cause to reopen discovery after a trial date has been continued." (Id. at pp. 1247-1248.)
Here, too, the trial court accepted defendant's unsubstantiated claim that he would be prejudiced by an extension of discovery. Specifically, defendant's counsel, Mr. Hoodack, argued that "depending on what their discovery is, we're going to have to now get different experts, do different depositions and, your honor, in reality you're putting us back to square one with the plaintiff starting her discovery." Defendant did not explain why he would have to redo discovery, or even what that meant, given that he had never incurred the ordinary costs of discovery because Mr. Lawrence was suspended before defendant's deposition was scheduled to take place, and defendant had objected to, and therefore not responded to, the discovery requests served on him. In truth, if discovery were reopened, defendant would be required to expend the time and money he would have otherwise expended if Mr. Lawrence had not been suspended and discovery had progressed normally. Moreover, while the trial court was required to consider all material facts necessitating the requested extension, it permitted defendant's counsel to present what he considered to be the material facts, but refused to hear from Mr. Lawrence, the only other person with knowledge of the facts, on the mistaken notion that a suspended lawyer cannot speak in court, even as a percipient witness.
In short, in mid-September, just prior to Mr. Lawrence's suspension, trial was set for February 12, 2008, with a discovery deadline of January 13, 2008. Mr. Lawrence had noticed the depositions of defendant and two of his employees, and had four full months to complete discovery and prepare for trial. Following Mr. Lawrence's suspension, it took plaintiff two months to locate new counsel to represent her. Defendant used that time to prepare and notice motions to compel discovery. Upon substituting in on the case, Ms. Manago was immediately required to respond to those motions to compel, to prepare responses to the discovery underlying those two motions, and to prepare her client for deposition. Her own attempts at discovery were frustrated because defendant chose to object based on the discovery cutoff date rather than waive the date and respond.
California law favors trying cases on their merits. (Salas v. Sears, Roebuck & Co. (1986) 42 Cal.3d 342, 347.) The denial of the motion to reopen or extend discovery precluded the disposition of this case on its merits. We note as well that it is "the rights of the client, not the lawyer, which are at stake here, and there is no showing that the [client] did anything to warrant the result reached in this case." (Oliveros v. County of Los Angeles, supra, 120 Cal.App.4th at p. 1400.) The plaintiff should not be made to suffer because Mr. Lawrence was suspended from practicing law. Her replacement counsel was diligent in responding to defendant's discovery requests and in her attempts to prepare for a trial in the very short time available to her.
In short, the same circumstances which the trial court recognized as good cause to grant plaintiff's request for a continuance provided good cause to permit her to use the additional time to complete discovery. Indeed, without the ability to conduct discovery, the continuance was useless.
DISPOSITION
The order granting a continuance is affirmed, and the order denying further discovery is reversed. The judgment is reversed, and the matter is remanded to the trial court for further proceedings consistent with this opinion. Plaintiff is to recover costs on appeal.
I concur: KRIEGLER, J.
TURNER, P. J.
I respectfully dissent. The evidence is as follows. On September 20, 2006, plaintiff filed a complaint for legal malpractice, constructive fraud, fiduciary duty breach, and negligent misrepresentation against defendants, Dale C. Frailey and the Law Offices of Frailey & Associates. Plaintiff alleged Mr. Frailey’s nonlawyer employees recommended she settle the underlying lawsuit for less than an appropriate settlement. The complaint in the present legal malpractice suit was filed by Arthur G. Lawrence. On February 6, 2007, defendants answered plaintiff’s legal malpractice complaint.
Six months later, on July 27, 2007, defendants served interrogatory requests on plaintiff. Mr. Lawrence requested and was granted extensions of time to respond. The last of the extensions was to expire on October 8, 2007. On August 14, 2007, at Mr. Lawrence’s request, the parties stipulated to continue the trial date from October 1, 2007, to February 11, 2008. They did not stipulate to extend the discovery cut-off. Mr. Lawrence noticed the depositions of Kevin and Charles Wong, defendants’ employees. The Wongs’ depositions were scheduled for September 16 and 17, 2007. Defendants objected to both depositions. Mr. Lawrence stated, “[Defense counsel]... [has] “take[n] advantage of a technical noncompliance with the Code of Civil Procedure and cavalierly object[ed] to everything.” Mr. Lawrence also noticed Mr. Frailey’s deposition, which was scheduled for September 20, 2007. On September 18, 2007, however, Mr. Lawrence was suspended from the practice of law. On October 26, 2007, defendant’s lawyer was informed that plaintiff’s new attorney would be Rhonda Kay Walker. On or about November 14, 2007, two months after Mr. Lawrence was suspended, plaintiff retained Ollie Manago. In November 2007, Ms. Manago responded to four motions which sought to compel answers to form and special interrogatories and document production. Ms. Manago declared defense counsel had refused to take the motions to compel off calendar. Plaintiff has not provided us with copies of the moving papers, any reply or a copy of the trial court’s ruling.
On December 14, 2007, plaintiff served a response to a supplemental document production. The supplemental production demand requested later acquired documents secured after prior document production requests. Plaintiff provided documents she intended to use at trial: a November 1, 2003 highway patrol stored vehicle report; a $126 towing bill dated November 2, 2003, and a letter to State Farm Insurance Automobile Insurance Company demanding payment of the unpaid invoice; a check from State farm Automobile Insurance Company dated September 24, 2004; a list of expenses incurred by plaintiff apparently from her health care provider; and checks dated September 30, 2004, to plaintiff ($2,100), a health group ($2,202), defendants ($2,050), and an imaging concern ($800). Also on December 14, 2007, plaintiff served her special interrogatory answers. The special interrogatory answers identified documents which supported her legal malpractice claims virtually all of which came from defendants and her medical care providers.
On January 8, 2008, plaintiff, represented by Ms. Manago, filed a motion to continue the trial and to reopen discovery. This was two months after Ms. Manago was retained. In support of that motion, Ms. Manago declared: “I have been diligent in my efforts to work this case for trial preparation. I was initially inundated with responses to discovery and responses to motions to compel late discovery. I have recently served the defendants with interrogatories, requests for admissions, demand for productions of documents and notices of depositions. Defendant’s counsel has served me with objections to the discovery on the grounds that discovery is supposed to be concluded within thirty (30) days of the initial date set for trial. Plaintiff was deposed for approximately six (6) hours and we have stipulated to completing that deposition at a date that is agreeable to the convenience of the parties and their attorneys.” Ms. Manago further declared that as of January 8, 2008, she was unable to prove the facts alleged in the complaint. This was because she was unable to obtain unspecified evidence even though she had exercised due diligence. Ms. Manago concluded: “There are no other means to obtain the evidence that is in the personal knowledge of the defendant and his employees, including Kevin Wong and Charles Wong. Plaintiff is unsure what other employees might have relevant evidence until discovery is complete.” Plaintiff presented no evidence of compliance with the meet and confer requirements imposed by Code of Civil Procedure section 2024.050, subdivision (a) for reopening discovery.
Defendants opposed the motion to continue the trial and reopen discovery. Defense counsel’s declaration reiterated many of the aforementioned dates when various events occurred. Defense counsel’s declaration also related: Mr. Frailey worked part time as a deputy public defender; this made it difficult to schedule Mr. Frailey’s deposition; and Mr. Lawrence, even though he was suspended by the State Bar from practicing law, assisted Ms. Manago at plaintiff’s deposition and during court appearances. Defense counsel concluded: “Plaintiff’s counsels have not diligently litigated her matter, have conducted no discovery, refused to participate in the ADR process, waited three and a half... months to secure new counsel, waited more than two... months after acquiring new counsel to bring the motion to continue. These factors should be considered as the basis in denying Plaintiff’s request.”
On January 18, 2008, the trial court continued the trial to April 14, 2008, but denied the motion to reopen discovery. At the outset of the hearing, the trial court tentatively indicated it would grant both motions. The parties presented extensive argument and at one point the trial court, while discussing the reopening of discovery issue, said: “And from what [defense counsel] [said] to me, it doesn’t sound like it’s going to be a great necessity for discovery from the defendants if [Ms.] Tang feels that her case was, feels that the underlying personal injury case was poorly handled. She’s going to have to come forth with her evidence on that. [¶] Ms. Manago: That’s true.” Ms. Manago tempered her agreement that there was no great necessity for additional discovery with this caveat, “[I]t is [Ms.] Tang’s position that she never signed any settlement agreement, so we need to be able to.” In her complaint, plaintiff alleges she signed a release. Defense counsel then indicated he had turned over the “entire file” to plaintiff’s counsel. The trial court then stated it wanted to review the relevant time frames and determine how much time plaintiff had to prepare prior to Mr. Lawrence’s suspension. The trial court found: “Plaintiff has had ample opportunity to conduct discovery while her prior counsel Mr. Arthur Lawrence was an active member of the state bar. Plaintiff should not be prejudiced by Mr. Lawrence’s September, 2007 suspension from the practice of law. Her new counsel should have an opportunity to become familiar with the file in preparation for trial. Defendants, however, should not be subject to discovery which should have occurred during Mr. Lawrence’s representation.”
On February 11, 2008, plaintiff filed a reconsideration motion. The trial court denied an ex parte application to shorten time for hearing the motion. The motion was set for hearing on April 10, 2008. In support of the reconsideration motion, Ms. Manago declared: upon being retained, on November 20, 2007, she had to prepare responses to defendants’ discovery request, which “took a lot of time”; she also had to respond to four motions to compel; defendants took plaintiff’s deposition on or about December 27, 2007; and “without the designation of experts my client cannot benefit from her day in court.” Plaintiff has not provided us with a reporter’s transcript or a suitable substitute of the transcript the hearing on the reconsideration motion.
On March 20, 2008, plaintiff filed a petition for writ of mandamus in this court. Plaintiff sought orders directing the trial court to grant the motion to reopen discovery and to vacate the April 14, 2008 trial date. On April 11, 2008, we summarily denied the writ petition. (Tang v. Superior Court (Apr. 11, 2008, B206582) [nonpub. order].)
The case was called for trial on April 14, 2008. Dan King appeared for the plaintiff who was not present. Mr. Frailey was present. Mr. King advised the trial court, “I’m sorry, we’re not prepared for trial.” Plaintiff’s counsel had been waiting for a decision on the writ petition and expected it might be granted. The trial court placed the matter on second call and advised Mr. King, “You can try to reach [the plaintiff] on the telephone and tell her that her case is going to be dismissed unless she’s here and ready to proceed with trial.” When the case was called a second time, Mr. King stated: “Your Honor, I understand there was an agreement between [Ms.] Tang and the trial attorney Ollie [Manago], she was going to dismiss the case if the writ was denied. Apparently, [it] was denied. And I had called [Ms.] Tang, she’s not sure if she wants to dismiss the case, so I can’t speak for her right now but that’s the agreement with the law firm.” The trial court ruled: “The case is going to be dismissed for plaintiff’s failure to appear and proceed to trial.” An April 30, 2008 judgment was entered in defendants’ favor.
An order continuing or postponing a trial date does not operate to reopen discovery. (Code Civ. Proc., § 2024.020, subd. (b); Pelton-Shepherd Industries, Inc. v. Delta Packaging Products, Inc. (2008) 165 Cal.App.4th 1568, 1575, fn. 10.) A trial court may in its discretion grant a motion to reopen discovery after a new trial date has been set. (Code Civ. Proc., § 2024.050, subd. (a); Pelton-Shepherd Industries, Inc. v. Delta Packaging Products, Inc., supra, 165 Cal.App.4th at p. 1575, fn. 10.) Code of Civil Procedure section 2024.050, subdivision (b) provides: “In exercising its discretion to grant or deny this motion [to reopen discovery], the court shall take into consideration any matter relevant to the leave requested, including, but not limited to, the following: [¶] (1) The necessity and the reasons for the discovery. [¶] (2) The diligence or lack of diligence of the party seeking the discovery or the hearing of a discovery motion, and the reasons that the discovery was not completed or that the discovery motion was not heard earlier. [¶] (3) Any likelihood that permitting the discovery or hearing the discovery motion will prevent the case from going to trial on the date set, or otherwise interfere with the trial calendar, or result in prejudice to any other party. [¶] (4) The length of time that has elapsed between any date previously set, and the date presently set, for the trial of the action.”
We review the trial court’s denial of plaintiff’s motion to reopen discovery for an abuse of discretion. (Code Civ. Proc., § 2024.050; Hernandez v. Superior Court (2004) 115 Cal.App.4th 1242, 1246-1248; Roe v. Superior Court (1990) 224 Cal.App.3d 642, 646, fn. 5.) An order denying a motion to reopen discovery cannot be reversed absent a clear abuse of discretion. (Hernandez v. Superior Court, supra, 115 Cal.App.4th at pp. 1246-1248; Roe v. Superior Court, supra, 224 Cal.App.3d at p. 646, fn. 5) As the Supreme Court has explained: “[A] reviewing court should not disturb the exercise of a trial court’s discretion unless it appears that there has been a miscarriage of justice.... ‘Discretion is abused whenever, in its exercise, the court exceeds the bounds of reason, all of the circumstances before it being considered. The burden is on the party complaining to establish an abuse of discretion, and unless a clear case of abuse is shown and unless there had been a miscarriage of justice a reviewing court will not substitute its opinion and thereby divest the trial court of its discretionary power.’ [Citations.]” (Denham v. Superior Court (1970) 2 Cal.3d 557, 566; Caminetti v. Edward Brown & Sons (1943) 23 Cal.2d 511, 524.)
Plaintiff has not established the trial court clearly abused its discretion when it refused to reopen discovery. This is a legal malpractice action arising out of an underlying personal injury automobile collision claim. This action was pending for 19 months prior to its dismissal, in excess of the trial court delay reduction goals for such a case. (Gov. Code, §§ 68603, 68607; Cal. Rules of Court, rules 3.713, 3.714; Los Angeles Superior Court Trial Court Delay Reduction Rules, rule 7.0(d) [“This court adopts the case disposition time standards recommended by the American Bar Association and adopted by the Judicial Council which specify as an ultimate goal the disposition of 90% of all civil cases within one year of filing, 98% within 18 months of filing and 100% within two years of filing”]; see Kidd v. Kopald (1994) 31 Cal.App.4th 132, 149-150; see also Beverly Union Co. v. Superior Court (1988) 206 Cal.App.3d 40, 43 [“The Legislature enacted the Trial Court Delay Reduction Act in response to the urgent public need to reduce litigation delays that have reached, in some counties, scandalous proportions”].)
Plaintiff’s first lawyer, Mr. Lawrence, did not conduct any discovery in the first year that the action was pending. Mr. Lawrence did not serve any interrogatories or document production requests and he did not notice any depositions. When the depositions of the defendant and his staff set were noticed, the lawsuit had been pending for one year. The depositions were noticed four months prior to the discovery cut-off. (Code Civ. Proc., § 2024.020; Kaplan v. Mamelak (2008) 162 Cal.App.4th 637, 641, fn. 3.) Mr. Lawrence also failed to respond to interrogatories and production demands served on plaintiff by defendants in July 2007. When Mr. Lawrence was suspended by the State Bar on September 18, 2007, the discovery responses, initially due by September 14, 2007, with an extended due date of October 8, 2007, had not been prepared. This left plaintiff’s new counsel, Ms. Manago, “inundated” with overdue responses and motions to compel discovery. Mr. Lawrence offered no explanation for his lack of diligence in commencing the discovery process. The trial date had already been continued by several months, at Mr. Lawrence’s request, from October 1, 2007, to February 11, 2008. Ms. Manago waited two months after agreeing to represent plaintiff before she filed the motion to continue the trial and reopen discovery. Moreover, at the hearing, Ms. Manago agreed that there was no great necessity for discovery other than to establish no settlement agreement was signed. And the absence of a settlement agreement was an issue to which that plaintiff could testify. (In her complaint, plaintiff admitted she signed a release.) There was no evidence plaintiff complied with the meet and confer requirements imposed by Code of Civil Procedure section 2024.050, subdivision (a). Under all these circumstances, the trial court could reasonably conclude there was an insufficient showing of good cause to reopen discovery; Mr. Lawrence had ample time to conduct discovery before he was suspended from practice but failed to do so. As a result, when the case was called for trial, plaintiff was unable to proceed. There was no abuse of discretion.
Plaintiff’s reliance on Hernandez v. Superior Court, supra, 115 Cal.App.4th at pages 1244-1248, is misplaced. The attorney whose conduct was at issue in Hernandez had diligently and timely conducted discovery before he was overcome by pancreatic cancer, which led to his death. Moreover, unlike Hernandez, the trial court did not rigidly adhere to deadlines for their own sake. Here the trial court accepted Ms. Manago’s assessment of the need to prepare for trial. But the trial court also considered Mr. Lawrence’s failure, while an active member in good standing of the State Bar who was not suffering from pancreatic cancer, to even commence the discovery process. The reporter’s transcript of the hearing on plaintiff’s motion to reopen discovery reflects a cautious, balanced and judicious effort by the trial court to protect the rights of both parties.
In any event, on direct appeal, when a discovery ruling is challenged, the appealing party must demonstrate prejudice. (Philippine Export & Foreign Loan Guarantee Corp. v. Chuidian (1990) 218 Cal.App.3d 1058, 1085; Jaffe v. Albertson Co. (1966) 243 Cal.App.2d 592, 617-618.) Thus, even if we were to conclude the trial court abused its discretion, plaintiff has not sustained her burden of showing there was a reasonable probability of a different result had the trial court granted her motion to reopen discovery. (Cal. Const., art. VI, § 13; Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th 780, 801-802; Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 570; Pool v. City of Oakland (1986) 42 Cal.3d 1051, 1069-1070.) The trial court continued the trial date for two months, from February 11, 2008, to April 14, 2008. Plaintiff has not shown that in two months time she could be prepared for trial. Despite the opportunity to do so, plaintiff has failed to present admissible evidence that had the case been tried there was any merit to her legal malpractice and related claims or that she even potentially would have uncovered important evidence had additional depositions been taken. Plaintiff’s response to the trial court’s rulings and our order in connection with her mandamus petition was not to appear for trial.
For the foregoing reasons, I would affirm the April 30, 2008 judgment.