Darling v. Darling CA2/6 ( 2024 )

Filed 1/16/24 Darling v. Darling CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
MARNI MARIE DARLING, 2d Civ. No. B323719
(Super. Ct. No. D363893)
Plaintiff and Respondent, (Ventura County)
v.
CHAD STEPHEN DARLING,
Defendant and Appellant.
Chad Darling appeals a trial court order denying his
request for a continuance of trial on Marni Darling’s petition to
dissolve their marriage.1 He contends the court deprived him of
due process because he was unable to cross-examine Marni’s
witnesses or object to evidence during trial. We will affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Chad and Marni married in 2001. They had three children
together, two of whom are minors. Throughout the marriage,
1 We refer to Marni and Chad Darling by their first names
for clarity and convenience. No disrespect is intended.
Chad ran a plastering company while Marni cared for their
children. Marni contends Chad began abusing drugs in 2011.
Marni asserts that in 2013 Chad checked into rehabilitation for
the first of what would be six recovery attempts. During that
time, the company did not have a bookkeeper so the job “kind of
got thrown at [her].” She “took over the business side of . . . all of
the office, invoicing estimates, [and] payroll.”
Marni petitioned for dissolution of their marriage in 2014.
Chad sent her threatening text messages while the matter was
pending. One stated: “I’m always up for a good fight you can
hire a lawyer you can come after me for anything you want. I’ll
be sure to dissolve everything and break the bank . . . this thing
will be drawn out so long that we will both be long broke by the
time either one of us gets a judgment.” Marni obtained three
temporary restraining orders against Chad. In October of 2021,
the court issued a domestic violence restraining order protecting
Marni and their children. That order remains in effect until
2026.
The parties attended a trial setting conference on
September 13, 2021, at which the trial court set a trial date and
issued pretrial orders including that the parties were to exchange
exhibit lists, exhibits and witness lists. A week later, Marni’s
counsel sent Chad a notice of trial setting out the pretrial orders
and notifying him of the December 9 trial date. Mark Piesner
substituted in as Chad’s fourth attorney on December 3. Piesner
contacted Marni’s counsel two days before trial to request that
she stipulate to a continuance because he would be out of town
and unable to attend. She declined.
Piesner’s office then called the court the morning of trial
“seeking a continuance on a representation that Mr. Darling
ha[d] tested positive for COVID.” The court denied the request
and informed them “that Mr. Piesner needed to make an
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appearance here today.” Attorney William Calerno specially
appeared for Piesner via Zoom in violation of local rules. (See
Super. Ct. Ventura County, Local Rules, rule 7.06.) Calerno
advised he was “seeking a trial continuance on Chad and
Piesner’s behalf” due to Chad’s illness and represented that
Piesner was “out of town for a previously scheduled travel.” The
court again denied the request and informed Mr. Calerno that
trial would begin at 10:30 a.m. and that an attorney representing
Chad would have “to be present in court.”
Trial thereafter commenced without Chad or his counsel
present. Marni and three other witnesses testified, and Marni
admitted 89 exhibits into evidence. The trial began in the
morning and after a recess for lunch, concluded that day. The
court “closed evidence subject to affording Chad the opportunity
to testify and for rebuttal purposes only.” The court terminated
the parties’ marital status and issued a judgment of dissolution
for marital status only and reserved all other issues. Trial
resumed on March 30. Chad and Piesner appeared. Chad
testified and despite being allowed by the court to produce “any
documents he wanted to offer into evidence,” he offered none.
The court entered a judgment of dissolution on all reserved
issues on July 27, 2022. Chad moved to set aside the judgment
(Code Civ. Proc., § 473, subd. (b)) on the grounds that he and his
counsel were unable to attend trial due to “a perfect storm of
unanticipated mistakes, errors, and inadvertencies.” He filed a
notice of appeal before the court held a hearing on the motion.
(Fam. Code, § 2341; Code Civ. Proc., § 904.1, subd. (a)(1).) The
court stayed the action pending this appeal. (Code Civ. Proc.,
§ 916, subd. (a).)
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DISCUSSION
Standard of Review
“‘“A judgment or order of the lower court is presumed
correct.’”” (In re Marriage of Bower (2002) 96 Cal.App.4th 893,
898.) “[T]o be successful on appeal, an appellant must be able to
affirmatively demonstrate error on the record before the court.”
(In re Marriage of Falcone & Fyke (2008) 164 Cal.App.4th 814,
822 (Falcone).) “Reviewing courts must uphold a trial court’s
choice not to grant a continuance unless the court has abused its
discretion in so doing. [Citation.]” (Ibid. at p. 823.) “‘The
appropriate test for abuse of discretion is whether the trial court
exceeded the bounds of reason.’” (Gonzalez v. Munoz (2007) 156
Cal.App.4th 413, 420.)
No Abuse of Discretion in Denying Trial Continuance
Chad contends the trial court erred in denying his request
because the “interests of justice supported a trial continuance.”
He argues there was good cause for a trial continuance because:
(1) Chad could not attend due to his illness; and (2) his counsel
was not available due to “Piesner’s mis-calendaring of the trial
date.” He further asserts Marni and her witnesses would not
have been prejudiced by a trial continuance. We do not agree
with either contention.
“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.” (Cal. Rules of Court, rule
3.1332(a).) “A party seeking a continuance . . . must make the
request . . . 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.” (Id., rule 3.1332(b).) “The
court may grant a continuance only on an affirmative showing of
good cause” and “must consider all the facts and circumstances
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that are relevant to the determination.” (Id., rule 3.1332(c), (d).)
Some relevant factors include: “proximity of the trial date”; prior
trial delays; “prejudice that parties or witnesses will suffer”;
“[w]hether all parties have stipulated to a continuance”; “the
interests of justice”; and “[a]ny other fact or circumstance
relevant to the fair determination of the motion or application.”
(Id., rule 3.1332(d).) “[S]ickness of a party to an action,
preventing his attendance on the court, does not ipso facto
require the court to grant an application for a continuance.”
(Lynch v. Superior Court (1906) 150 Cal. 123, 123.) Furthermore,
a party “d[oes] not have an absolute right to a continuance
because of the absence of [their] attorney.” (Baumberger v. Arff
(1892) 96 Cal. 261, 262.)
Chad filed neither a noticed motion nor an ex parte request
for a continuance. More importantly, he did not make an
“affirmative showing of good cause” to continue trial. (Cal. Rules
of Court, rule 3.1332(c).) Chad received notice in September 2021
that the trial – for which dissolution proceedings had been
pending since 2014 – was scheduled for December 9. He then
waited until December 3, less than one week before trial, to file a
substitution of counsel. Both Chad and Piesner knew of a
calendaring conflict at least four days before the trial began.
Nonetheless, Peisner waited until December 7 to contact Marni’s
counsel to seek a stipulated continuance. After she declined,
Piesner then waited until the morning of trial to request a
continuance from the court based upon an unsupported
“representation that Mr. Darling ha[d] tested positive for
COVID.”
The court noted Chad’s prior conduct. “This 11th hour
request was not Chad’s first. Throughout this litigation, Chad
has sought untimely continuances for all manner of reasons
including claims he was ill; had car trouble; and needed to obtain
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counsel.” He “frustrated the litigation process and increased the
cost of litigation repeatedly. He did not comply with Court
orders, refused to provide necessary discovery and disclosures,
and in general made good on his threat to Marni early on to make
this process as expensive and as painful as possible in retribution
for Marni’s decision to proceed with the divorce.” We agree. The
court properly considered all relevant factors as required under
rule 3.1332. It did not abuse its discretion in denying Chad’s
untimely, unsupported request for a continuance.
No Denial of a Fair Hearing
Chad next contends that allowing the trial to proceed
“while denying [him] the ability to make objections or challenge
[Marni’s] witnesses’ testimony or credibility via cross-
examination denied [him] of a fundamental and essential element
of due process” which “constitutes a reversible error.” But, “[i]t is
a well-recognized proposition that ‘[a] person is free to waive any
or all procedures required and designed to safeguard
fundamental rights’ and that a person may waive the right of
cross-examination.” (In re Marriage of S. (1985) 171 Cal.App.3d
738, 745.) “Such waiver may be express, i.e., by stipulation of the
parties, or implied.” (Ibid.) “It is also a fundamental principle of
appellate review that objections must be raised in the trial court
to preserve questions for review. Appellate courts will not
consider objections that were not presented to the trial court.
[Citation] In civil cases, constitutional questions not raised in
the trial court are considered waived.” (Ibid.)
The record contains the reporter’s transcripts of the first
day of trial on December 9, 2021 and the court’s oral ruling on
May 9, 2022. It does not contain a transcript for the second day
of trial on March 30, 2022, in which Chad and his counsel
appeared. This deficiency in the record precludes us from
determining what occurred on March 30, including whether Chad
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requested to cross-examine Marni’s witnesses, whether he made
objections to Marni’s evidence, and whether the court denied his
requests. Chad assumes “the trial court had already foreclosed
[his] ability to” conduct cross-examination and make evidentiary
objections because it “closed evidence subject to affording Chad
the opportunity to testify and for rebuttal purposes only.” To the
extent Chad’s argument is that any request to cross-examine
Marni’s witnesses or object to her evidence would have been
futile, he offers no convincing argument or support for this
contention in the record. Instead, the record supports that Chad
appeared at the second day of trial and presented his evidence
without objection to the proceedings that took place on the first
day of trial.
Chad’s due process violation claim thus fails because he did
raise any objection in the trial court.
DISPOSITION
Judgment is affirmed. Respondent shall recover her costs
on appeal.
NOT TO BE PUBLISHED.
CODY, J.
We concur:
YEGAN, Acting P.J.
BALTODANO, J.
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Charmaine Buehner, Judge
Superior Court County of Ventura
______________________________
Ferguson Case Orr Paterson, Wendy C. Lascher, for
Plaintiff and Respondent.
Decker Law, James D. Decker, Griffin R. Schindler, for
Defendant and Appellant.
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