Pierson v. Rushing CA3 ( 2024 )

Filed 9/25/24 Pierson v. Rushing CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(Amador)
----
RAYMOND H. PIERSON III, C097290
Plaintiff and Appellant, (Super. Ct. No. 18CVC10813)
v.
PHYLISS M. RUSHING,
Defendant and Respondent.
Plaintiff Raymond H. Pierson III, individually and doing business as Raymond H.
Pierson, M.D., appeals from a judgment dismissing his lawsuit against defendant Phyllis
M. Rushing. We affirm.
1
FACTS AND PROCEEDINGS
The Complaint
On October 9, 2018, plaintiff filed a complaint against Rushing and her
automobile insurer, CSAA Insurance Services, Inc., and CSAA Insurance Exchange
(CSAA). The complaint generally alleged that Rushing drove her car into plaintiff’s
unoccupied medical office on October 10, 2016. It alleged causes of action against
Rushing for (1) negligence – general, (2) negligent operation of a motor vehicle –
business disruption, (3) negligence – personal injury, (4) intentional infliction of
emotional distress, and (5) negligent business interference with projected economic
advantage. It also alleged the fifth cause of action against CSAA, and it alleged a sixth
cause of action for breach of contract solely against CSAA on the basis that CSAA failed
to act in good faith. Plaintiff sought damages including punitive damages.
Demurrers and Motion to Strike Punitive Damages Claim
Rushing demurred to the fourth cause of action for intentional infliction of
emotional distress, and the fifth cause of action for negligent business interference with
projected economic advantage. The trial court sustained the demurrers on the basis that
plaintiff’s complaint failed to plead facts sufficient to constitute a cause of action. (Code
Civ. Proc., § 430.10, subd. (e).)1 The court denied leave to amend because plaintiff failed
to satisfy his burden to show in what manner he could amend his complaint, or how
amendment would change the legal effect of his pleading.
Rushing also moved to strike plaintiff’s claim for punitive damages, which the
court granted on the basis that plaintiff did not allege any theory that could support a
punitive damages award.
1 Further undesignated statutory references are to the Code of Civil Procedure.
2
The trial court also sustained without leave to amend CSAA’s demurrers to each
of the causes of action the complaint asserted against it, and dismissed it from the case.
Plaintiff appealed that judgment in October 2019, which this court affirmed in a
nonpublished opinion. (Pierson v. CSAA Insurance Services, Inc., et al. (Jun. 30, 2023,
C091099) (Pierson I).)
Order Granting Motion to Lift Stay
Plaintiff’s appeal of the judgment in favor of CSAA named Rushing as a
defendant, causing the proceedings against Rushing to be automatically stayed pending
the appeal’s resolution. (§ 916.) On April 1, 2021, Rushing filed a motion in this court
seeking a determination that she was not a party to the appeal, and for an order lifting the
automatic stay. A panel of this court agreed to dismiss Rushing from the appeal, but
denied the request to lift the stay without prejudice, observing that Rushing could file a
motion seeking that relief in the trial court.
On June 25, Rushing filed in the trial court a motion to lift the automatic stay on
the basis that she was not a party to plaintiff’s appeal of the judgment in favor of CSAA.
The court granted the motion on September 22. It recognized that the pendency of an
appeal did not divest it of jurisdiction to determine ancillary or collateral matters not
affecting the judgment on appeal; found that Rushing “[wa]s not a party to the appeal,
[wa]s of advanced age, and the incident in question occurred over five (5) years ago”; and
concluded that proceeding with the case as to Rushing “does not impact the effectiveness
of Plaintiff’s appeal against Defendant CSAA.”
3
Order Granting Motion for Trial Preference
On December 17, Rushing filed a motion for trial preference pursuant to
section 36, subdivision (a),2 arguing that she was 94 years old, had heart issues,3 and had
a substantial interest in the case based on plaintiff’s claimed damages exceeding the
limits of her insurance coverage.
In a tentative ruling, the trial court granted Rushing’s motion for trial preference
under section 36, subdivision (a). At the hearing on the motion, plaintiff argued that
Rushing did not have a substantial interest in the case because he only sought damages of
up to the limits of Rushing’s policy, and CSAA would be required to pay any damages
awarded exceeding policy limits due to its bad faith conduct in refusing to settle his
claims.
The trial court granted the motion under section 36, subdivision (e),4 noting
Rushing’s advanced age, counsel’s representation regarding her health issues, and the
lengthy duration of the case to that point. It noted that “[Rushing’s] age alone at this
point would satisfy” the statute’s requirements.
The court set a mandatory settlement conference for May 5, 2022, a final trial
readiness conference for June 3, and trial for June 13.
2 Section 36, subdivision (a) provides: “A party to a civil action who is over 70 years of
age may petition the court for a preference, which the court shall grant if the court makes
both of the following findings: [¶] (1) The party has a substantial interest in the action as
a whole. [¶] (2) The health of the party is such that a preference is necessary to prevent
prejudicing the party’s interest in the litigation.”
3 The motion asserted that she had “a stent inside a stent and a defective heart valve.”
4 Section 36, subdivision (e) provides: “Notwithstanding any other provision of law, the
court may in its discretion grant a motion for preference that is supported by a showing
that satisfies the court that the interests of justice will be served by granting this
preference.”
4
Plaintiff’s First Motion to Continue Trial
In anticipation of trial, Rushing filed a trial brief, motions in limine, a trial exhibit
list, a trial witness list, and a statement of the case.
At the trial readiness conference on June 3, plaintiff requested a continuance of the
trial date on the basis that he had not been able to litigate his case during the previous
month because he, his family, and his assistant were all suffering from the effects of
COVID-19. He also asserted that he was overwhelmed by his responsibilities in his
various legal proceedings, and acknowledged that he was not prepared for trial.
The trial court accepted plaintiff’s representation, made under penalty of perjury,
that he and his family had been ill, and found good cause to vacate the trial date. The
court continued the trial date to August 9, and set a final trial readiness conference for
July 29.
Plaintiff’s Second Motion to Continue Trial
At the trial readiness conference, plaintiff stated that he was not ready to proceed,
and trial must be stayed because he had filed a writ of supersedeas in this court requesting
a temporary stay of trial proceedings. The court rejected his argument that trial must be
stayed while his writ petition was pending; it noted that plaintiff had not filed a written
motion to continue, and the mere filing of a writ petition did not stay trial court
proceedings. Plaintiff asserted that he could file a written motion within “a couple
hours.” The court set an additional trial readiness conference for August 5 to address any
ruling from this court on plaintiff’s petition. Observing that plaintiff had not filed any
motions in limine, the court extended the deadline to file such motions to August 4.5
5 In his reply brief, plaintiff asserts that he notified the court at this hearing that he would
require a trial continuance due to his health issues, because he was experiencing “the
worst phase of [his] life.” (Italics omitted.) However, he cites to a portion of the record
in which he stated that “the worst phase of [his] life” was due to the challenge presented
by keeping up with the pace of his legal proceedings. He stated that he would be seeking
5
Also on July 29, after the trial readiness conference had concluded, this court
denied plaintiff’s petition for writ of supersedeas. (Pierson I (order denying petition
issued Jul. 29, 2022, C091099).)
On August 4, plaintiff filed a single motion in limine, and he notified the court that
he was unable to file additional motions in limine before the deadline due to the
unavailability of his part-time assistant.
Early in the morning on Friday, August 5, plaintiff e-mailed defense counsel a
copy of a motion to continue trial that he had not filed with the court. Later that morning,
plaintiff filed multiple motions in limine, which the court rejected as untimely. Plaintiff
also notified the court that he intended to seek review in our Supreme Court of the trial
court’s ruling lifting the automatic stay.
The trial court conducted the trial readiness conference in a different courtroom
than had been initially scheduled, and plaintiff did not appear. Defense counsel informed
the court that plaintiff had e-mailed him a motion to continue that morning. The court
responded that it would not consider a motion it had not received, and confirmed the trial
date.
After the hearing, plaintiff sent defense counsel an e-mail stating that he failed to
appear at the trial readiness conference because he did not realize the conference had
been moved from the initially scheduled courtroom. He added that he intended to file an
immediate ex parte application for continuance in the trial court that afternoon. Defense
counsel responded that he would oppose any trial continuance.
On Monday, August 8, plaintiff filed an ex parte request for a four-month
continuance of trial. He asserted that he had a long history of hypercholesterolemia and
hypertriglyceridemia, which had required aggressive medical therapy for more than 20
a continuance not due to his health issues, but rather due to the pendency of his writ
petition filed in this court.
6
years and had become increasingly symptomatic since February 2022. Plaintiff had
decided to forego recommended testing on his heart due to the urgency of his various
legal proceedings, but an increase in symptoms “[o]ver recent weeks” had required him
to comply with his cardiologist’s recommendation that he suspend his involvement in the
case to permit evaluation and treatment of his condition. In support, plaintiff attached a
letter dated August 4, 2022, ostensibly from his cardiologist, recommending that plaintiff
“immediately suspend all involvement in the current legal proceedings until his cardiac
evaluation and likely need for intervention have been completed and a full recovery
achieved.” The letter was unsigned, and did not specify the legal proceeding that was the
subject of the letter.
Plaintiff asserted other bases for his request for continuance, including that the
trial court’s decision to lift the automatic stay caused him to delay two major orthopedic
procedures, the adverse effects on his physical and mental health required him to seek
legal representation in the litigation, and the various legal proceedings in which he was
involved left him with insufficient time and financial resources to prepare for trial.
Plaintiff argued that he brought the motion “as soon as possible . . . following the
shock he received from the Third District Court of Appeal in the July 29, 2022 decision
to deny the July 18, 2022 submitted Petition for Writ of Supersedeas.” (Italics omitted.)
He added that he had intended to file the motion in court during the August 5 trial
readiness conference, but he had appeared in the wrong courtroom because he was
unaware the location of the hearing had been changed.
On August 9, the court called the case to trial. Plaintiff did not appear, although
his assistant, Sherry Hills, was present and informed the court that plaintiff had an
emergency and had been hospitalized.6 The court stated that it did not consider
6 Plaintiff attaches a declaration of Hills to his reply brief. We do not consider evidence
not included in the record on appeal. (People v. Superior Court (Lavi) (1993) 4 Cal.4th
7
plaintiff’s request for a continuance that had been filed the previous day because it was
untimely, and that it found plaintiff’s purported hospitalization to be a tactic to further
delay trial. Rushing made an oral request to dismiss and enter judgment in her favor,
which the court granted. The jurors were dismissed.
On August 10, Hills filed a document entitled urgent judicial notice, which stated
that plaintiff had been taken to the hospital after experiencing chest pain early in the
morning on August 9. The filing also stated that Hills had “received notice” that plaintiff
had undergone a procedure, and plaintiff was still admitted to the hospital. Hills
speculated that plaintiff would be able to confirm “this emergent situation,” and invited
the court to contact the hospital to confirm that plaintiff had been admitted. The notice
was not filed under penalty of perjury.
On August 24, the trial court entered judgment after trial. Notice of entry of
judgment was filed on September 1. Plaintiff timely filed a notice of appeal. The case
was fully briefed in June 2024 and was assigned to the current panel at the end of that
month.
DISCUSSION
I
Leave to Amend Complaint
Plaintiff contends the trial court abused its discretion by refusing to grant leave to
amend after sustaining Rushing’s demurrers to the complaint’s causes of action for
intentional infliction of emotional distress and negligent business interference with
projected economic advantage. Plaintiff has failed to demonstrate an abuse of discretion.
1164, 1173, fn. 5 [declining to consider declarations that were not filed in the trial court];
Spaccia v. Superior Court (2012) 209 Cal.App.4th 93, 108 [“we do not consider evidence
which was not before the trial court when it ruled on the motion”]; Cal. Rules of Court,
rule 8.204(a)(2)(C) [factual recitation limited to matters in the record].)
8
A demurrer tests the sufficiency of the complaint as a matter of law, and it raises
only questions of law. (§ 589, subd. (a).) A complaint survives demurrer if it states facts
disclosing some right to relief. (Longshore v. County of Ventura (1979) 25 Cal.3d 14,
22.) On appeal we presume the judgment to be correct (Denham v. Superior Court
(1970) 2 Cal.3d 557, 564), and it is plaintiff’s burden to rebut the presumption of
correctness accorded to the trial court’s decision (see Los Angeles Unified School Dist. v.
Torres Construction Corp. (2020) 57 Cal.App.5th 480, 492 [noting that these principles
apply to “ ‘ “an appeal from any judgment” ’ ”]) by providing reasoned argument and
citations to relevant legal authority to support that argument (Lee v. Kim (2019) 41
Cal.App.5th 705, 721). “[C]onclusory claims of error will fail.” (In re S.C. (2006) 138
Cal.App.4th 396, 408.)
These “same rules apply to a party appearing in propria persona as to any other
party.” (Flores v. Department of Corrections & Rehabilitation (2014) 224 Cal.App.4th
199, 205.) Indeed, self-represented litigants are held to the same standards as attorneys
and must comply with the rules of procedure. (See Rappleyea v. Campbell (1994) 8
Cal.4th 975, 984-985; Kobayashi v. Superior Court (2009) 175 Cal.App.4th 536, 543.)
This is not intended to penalize self-represented litigants; instead, it is necessary to
maintain stability in appellate proceedings, requiring adherence to the forms and
procedures that govern appeals.
Here, plaintiff asserts in conclusory fashion and without supporting argument or
citation to authority that Rushing’s demurrers and motion to strike punitive damages
“should not have been granted.” (Emphasis omitted.) In the absence of reasoned
argument and citation to authority to support that argument, plaintiff’s argument fails to
rebut the presumption of correctness.
“Where the demurrer was sustained without leave to amend, we consider whether
the plaintiff could cure the defect by an amendment. The plaintiff bears the burden of
proving an amendment could cure the defect.” (T.H. v. Novartis Pharmaceuticals Corp.
9
(2017) 4 Cal.5th 145, 162.) “To satisfy that burden on appeal, a plaintiff ‘must show in
what manner he can amend his complaint and how that amendment will change the legal
effect of his pleading.’ [Citation.] The assertion of an abstract right to amend does not
satisfy this burden. [Citation.] The plaintiff must clearly and specifically set forth the
‘applicable substantive law’ [citation] and the legal basis for amendment, i.e., the
elements of the cause of action and authority for it. Further, the plaintiff must set forth
factual allegations that sufficiently state all required elements of that cause of action.
[Citations.] Allegations must be factual and specific, not vague or conclusionary.”
(Rakestraw v. California Physicians’ Service (2000) 81 Cal.App.4th 39, 43-44.)
“ ‘[S]uch a showing need not be made in the trial court so long as it is made to the
reviewing court.’ ” (Governing Board v. Haar (1994) 28 Cal.App.4th 369, 375.) “[I]t is
an abuse of discretion to sustain a demurrer without leave to amend if the plaintiff shows
there is a reasonable possibility any defect identified by the defendant can be cured by
amendment.” (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 967.)
Here, plaintiff asserts that the trial court abused its discretion by refusing to grant
him leave to amend, but he offers no argument as to how he could amend his complaint
to state a viable cause of action as to his fourth and fifth causes of action. Thus, he has
failed to demonstrate a reasonable possibility that amendment could cure the complaint’s
defects.7 (Aubry v. Tri-City Hospital Dist., supra, 2 Cal.4th at p. 967.)
7 In his reply brief, plaintiff argues that leave to amend should have been granted
because CSAA intentionally interfered with his business for its economic advantage. That
is not an argument as to why leave to amend should have been granted as to the cause of
action asserted against Rushing.
10
II
Lifting the Automatic Stay
Plaintiff contends the trial court erred by lifting the automatic stay (§ 916) while
his appeal of the judgment in favor of CSAA was pending.
Section 916, subdivision (a) provides in relevant part that “the perfecting of an
appeal stays proceedings in the trial court upon the judgment or order appealed from or
upon the matters embraced therein or affected thereby, . . . but the trial court may proceed
upon any other matter embraced in the action and not affected by the judgment or order.”
“ ‘[W]hether a matter is “embraced” in or “affected” by a judgment [or order] within the
meaning of [section 916] depends on whether postjudgment [or postorder] proceedings
on the matter would have any effect on the “effectiveness” of the appeal.’ ” (Varian
Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 189.)
In challenging the trial court’s decision to lift the automatic stay, plaintiff argues
only that he was put in a disadvantageous position because he was not able to conduct
discovery while trial court proceedings against Rushing were stayed from April 2020
until September 2021. But plaintiff offers no argument or analysis challenging the trial
court’s legal conclusion, and therefore plaintiff has failed rebut the presumption of
correctness afforded to trial court decisions. (Denham v. Superior Court, supra, 2 Cal.3d
at p. 564; Los Angeles Unified School Dist. v. Torres Construction Corp., supra, 57
Cal.App.5th at p. 492.)
III
Trial Preference
Plaintiff contends the trial court erred in granting Rushing’s request for trial
preference. He argues that Rushing did not have a substantial interest in the litigation, as
required by section 36, subdivision (a), because he offered to settle the case within policy
limits, and CSAA would have been liable for any damages awarded in excess of policy
limits due to its bad faith conduct in rejecting his settlement offers.
11
However, as plaintiff recognizes in his reply brief, the trial court granted
Rushing’s request for trial preference under section 36, subdivision (e), which provides:
“Notwithstanding any other provision of law, the court may in its discretion grant a
motion for preference that is supported by a showing that satisfies the court that the
interests of justice will be served by granting this preference.” The court noted that
“[Rushing’s] age alone at this point would satisfy” the requirements of section 36,
subdivision (e). In other words, the trial court granted Rushing’s request on the basis that
Rushing’s showing of her advanced age satisfied the court that the interests of justice
would be served by granting trial preference. Accordingly, plaintiff’s argument that
Rushing did not have a substantial interest in the litigation fails to demonstrate error
because it does not challenge the basis of the court’s ruling.
IV
Continuance
Plaintiff contends the trial court abused its discretion when it denied (by indicating
it was “not consider[ing]” the motion as it was untimely and was a delay tactic) his ex
parte application to continue trial for four months. We disagree.
A. Legal Background
“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).)8 “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.” (Rule 3.1332(b).)
8 Further undesignated rule references are to the California Rules of Court.
12
“[T]here is no policy in this state of indulgence or liberality in favor of parties
seeking continuances. Rather, such parties must make a proper showing of good cause.”
(County of San Bernardino v Doria Mining & Engineering Corp. (1977) 72 Cal App.3d
776, 781; rule 3.1332(c).) Circumstances that may indicate good cause include the
unavailability of a party or trial counsel due to death, illness, or other excusable
circumstances. (Rule 3.1332(c)(2), (3).)
However, in ruling on a request for continuance, the trial court “must consider all
the facts and circumstances that are relevant to the determination,” which may include
“[t]he proximity of the trial date” (rule 3.1332(d)(1)); “[w]hether there was any previous
continuance, extension of time, or delay of trial due to any party” (rule 3.1332(d)(2));
“[t]he length of the continuance requested” (rule 3.1332(d)(3)); “[t]he prejudice that
parties or witnesses will suffer as a result of the continuance” (rule 3.1332(d)(5)); “[i]f
the case is entitled to a preferential trial setting, the reasons for that status and whether
the need for a continuance outweighs the need to avoid delay” (rule 3.1332(d)(6));
“[w]hether all parties have stipulated to a continuance” (rule 3.1332(d)(9)); “[w]hether
the interests of justice are best served by a continuance, by the trial of the matter, or by
imposing conditions on the continuance” (rule 3.1332(d)(10)); and “[a]ny other fact or
circumstance relevant to the fair determination of the motion or application” (rule
3.1332(d)(11)).
The trial court “ ‘has a wide discretion in granting or denying continuances, and its
decision is not disturbed on review unless a clear abuse of discretion is shown.’ ”
(Agnew v. Parks (1963) 219 Cal.App.2d 696, 700.)
B. Analysis
Plaintiff argues that he established good cause for a continuance through his
written request for continuance and his hospitalization on the morning trial was set to
begin, and he requested the continuance as soon as reasonably practical once the
necessity for continuance had been discovered. He adds that the trial court, in denying
13
the motion as untimely and finding that plaintiff’s purported hospitalization was a tactic
to delay trial, demonstrated its personal bias against him and failed to consider the
relevant facts, circumstances, and interests. As we will explain, we disagree.
Initially, plaintiff argues that his written request for a continuance and
hospitalization on the morning of trial established good cause for granting the
continuance. Plaintiff’s written request explained that he had been experiencing
increasing chest pain “[o]ver recent weeks,” and the request attached an unsigned letter
from his cardiologist recommending that he immediately suspend his involvement in
unspecified legal proceedings. On the morning of trial, Hills informed the court that
plaintiff had been hospitalized. Under rule 3.1332(c), the unavailability of counsel due to
illness is a circumstance under which a court “may grant a continuance.” (Italics added.)
However, the issue before us is whether the trial court abused its discretion when
it denied the continuance based on its findings that the request was untimely and that
plaintiff’s hospitalization was a tactic to further delay trial. The court’s decision
implicitly included the consideration of multiple factors under rule 3.1332(d).
As to the timeliness of the request, it was received by the trial court after 1:00 p.m.
on August 8, after trial had been confirmed at the trial readiness conference and literally
on the eve of trial. (Rule 3.1332(d)(1) [court must consider proximity of trial date].)
Additionally, defense counsel informed the court on the Friday before trial that plaintiff
had e-mailed him a copy of the motion for continuance, suggesting that the request was
not made “as soon as reasonably practical once the necessity for the continuance is
discovered.” (Rule 3.1332(b).)
Plaintiff’s request came after the trial court had previously granted him a 60-day
continuance on the basis that he was unprepared for trial because he and his family had
been ill. (Rule 3.1332(d)(2) [court must consider whether there was any previous
continuance, extension of time, or delay of trial].) His second request sought a further
delay of four months (rule 3.1332(d)(3) [court must consider length of requested
14
continuance]), which the trial court was statutorily prohibited from granting. (See § 36,
subd. (f) [upon granting motion for trial preference, trial court may not grant a
continuance of more than 15 days, and no more than one continuance for physical
disability may be granted].)
The trial court was also entitled to consider the prejudice to Rushing had it granted
plaintiff’s eve-of-trial request. (Rule 3.1332(d)(5) [court must consider prejudice to
parties], (6) [court must consider the reasons for trial preference status and whether need
for continuance outweighs need to avoid delay], (10) [court must consider whether
interests of justice are best served by continuance or trial].) Rushing’s collision with
plaintiff’s unoccupied medical practice building occurred nearly six years before the date
of plaintiff’s motion to continue, and further delay of the trial would continue to require
her to be involved in litigation at her advanced age. The trial court was authorized to
determine that the interests of justice would be best served by trying the matter and
avoiding further delay in the trial. (Rule 3.1332(d)(6), (10).) Indeed, given the
circumstances, it comes as no surprise that Rushing opposed the continuance. (Rule
3.1332(d)(9).)
Plaintiff argues that the trial court’s finding that his hospitalization constituted a
delay tactic demonstrated the court’s personal bias against him. But in considering
whether the interests of justice would be best served by a continuance or trial (rule
3.1332(d)(10)), the trial court was entitled to determine whether plaintiff’s purported
emergency was indeed an emergency warranting a continuance, or whether it instead was
a tactic intended to delay trial. At the time it denied the continuance, the trial court did
not have conclusive evidence that plaintiff had experienced an actual emergency
requiring hospitalization. Hills had notified the court that plaintiff had been hospitalized,
15
but the record does not reflect that she provided sworn testimony, or proof that he was
hospitalized due to an emergency.9
In addition to not having conclusive proof of plaintiff’s emergency, the trial court
had reason to believe plaintiff’s purported emergency was a delay tactic. Plaintiff had
previously acknowledged on more than one occasion that he was unprepared for trial. In
arguing for the continuance that the court granted, plaintiff asserted that he was
unprepared for trial because he and his family had been ill.10 On August 4, he notified
the court that he was unable to file additional motions in limine because his part-time
assistant was unavailable. On August 5, he notified the court of his intention to seek
review in the Supreme Court of the court’s decision to lift the automatic stay, an apparent
attempt to halt trial court proceedings. In his second request for a continuance, plaintiff
admitted that he “has no additional remaining time nor financial resources to develop the
case for trial” and could not “properly proceed with discovery inclusive of depositions,
preparation of exhibits and the hiring of expert witnesses.” Given these various
admissions, the trial court could have reasonably determined that plaintiff remained
unprepared for trial, and was attempting to further delay trial in a case that had been
pending for several years.
Finally, we note plaintiff’s argument on appeal that “CCP 437(c)” required the
court to grant his request for continuance because he had made repeated requests for time
to proceed with appropriate discovery to establish his claims. His request for continuance
argued that “CCP § 437C(1)” authorized trial courts to grant continuances to permit
9 We recognize that Hills filed a document entitled urgent judicial notice the day after
the trial court granted Rushing’s oral request to dismiss and to enter judgment in her
favor. But that document was not before the trial court at the time of its determination,
and in any event was unsworn and based on hearsay.
10 Plaintiff acknowledged he “didn’t send [Rushing] a single interrogatory” and “[had
not] had time to do any preparation whatsoever.”
16
additional discovery in the context of summary judgment motions. Initially, we are
unable to determine the statute on which plaintiff intends to rely. Section 437 does not
contain a “subdivision (c),” and in any event that statute concerns motions to strike and is
not applicable here. Section 437c concerns summary judgment motions, but it does not
contain a “subdivision (1).” It may be that plaintiff intends to cite to section 437c,
subdivision (h), which authorizes trial courts to grant continuances to permit discovery
where it appears from the affidavits submitted in opposition to a summary judgment
motion that facts essential to justify opposition may exist but cannot be presented. But
that statute is not applicable here, where plaintiff’s request for a continuance was made
on the eve of trial after four years of litigation, and not in the context of a summary
judgment motion.
Based on the foregoing, plaintiff has failed to demonstrate that the court abused its
discretion in denying his motion for continuance.11
DISPOSITION
The judgment is affirmed. Rushing shall recover her costs on appeal. (Cal. Rules
of Court, rule 8.278(a).)
/s/
11 Plaintiff raises other arguments, which we need address only briefly. In a stand-alone
argument, he contends the trial judge “repeatedly and indisputably” demonstrated
“exceptional prejudice” toward him, but he provides no specific examples of such bias to
support his claim. He also argues that this court improperly refused to allow his prior
appeal against CSAA to proceed as against Rushing, but this appeal is not the proper
venue for that claim. Lastly, we do not consider plaintiff’s claim, raised for the first time
in his reply brief, that the trial court erred when it granted Rushing’s request for dismissal
under section 581. (See Raceway Ford Cases (2016) 2 Cal.5th 161, 178 [“We generally
do not consider arguments raised for the first time in a reply brief”].)
17
Duarte, Acting P. J.
We concur:
/s/
Krause, J.
/s/
Mesiwala, J.
18