Wells Fargo Bank, National Assn. v. Superior Court CA4/1

Filed 2/26/21 Wells Fargo Bank, National Assn. v. Superior Court CA4/1
OPINION AFTER TRANSFER FROM THE CALIFORNIA SUPREME
COURT
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
WELLS FARGO BANK, NATIONAL D078087
ASSOCIATION et al.,
Petitioners, (San Diego County
Super. Ct. No. 37-2013-00078078-
v. CU-BT-CTL)
THE SUPERIOR COURT OF SAN
DIEGO COUNTY,
Respondent;
OVERLAND DIRECT, INC.,
Real Party in Interest.
ORIGINAL PROCEEDING in mandate. Joel R. Wohlfeil, Judge.
Petition denied.
Fidelity National Law Group, David B. Owen; Greines, Martin, Stein &
Richland, Robin Meadow and Jeffrey Gurrola for Petitioner Wells Fargo
Bank, National Association.
Philip A. Metson for Petitioner A&S Park Boulevard LLC.
The Leichter Firm, Kevin J. Leichter and Andrew Hewitt for
Petitioners Sunrise Financial LLC, Nice Team LLC, and E & E Mortgage
Bankers Corp.
Epport Richman & Robbins, Steven Huskey, Kimia Sehati and
Chrisopher R. Nelson for Petitioners Houshang Aframian, Amir Aframian,
and Maria Aframian.
No appearance for Respondent.
Blanchard, Krasner & French, Kipp Williams, John F. Whittemore;
Law Offices of Homan Mobasser and Homan Mobasser; Hill, Farrer &
Burrill, Daniel J. McCarthy; Law Offices of George Rikos and George Rikos
for Real Party in Interest.
Petitioners Wells Fargo Bank, N.A., A & S Park Boulevard, LLC,
Sunrise Financial, LLC, Nice Team, LLC, E & E Mortgage Bankers Corp.,
Houshang Aframian, Amir Aframian, and Maria Aframian (referred to
collectively as “Petitioners”) are defendants in three consolidated actions filed
by real party in interest Overland Direct, Inc. and CTPC, LLC (collectively
Overland). After nearly seven years, including a seven-month delay caused
by the court closure in response to the COVID-19 pandemic, the case was
finally set to begin a first-phase bench trial in October 2020. Petitioners,
however, requested another six-month continuance due to their concerns over
the pandemic. The trial court denied the continuance request, but
implemented a wide range of measures to protect the health of everyone
involved in the trial and allowed the parties to attend remotely.
In their writ petition, Petitioners contend the trial court abused its
discretion in finding the Petitioners failed to establish good cause for a
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continuance of their civil bench trial due to concerns about the COVID-19
pandemic. Alternatively, they contend that, as a matter of law, the trial
could not proceed in the manner proposed by the trial court because it would
violate a myriad of public health orders and would violate the parties’ right to
be physically present and participate at trial.
We see no abuse of discretion by the trial court in denying the request
for a continuance of trial. We therefore deny the petition. Any renewed
request for a continuance based on the circumstances as they exist following
the finality of this writ proceeding must be considered by the trial court in
the first instance at that time.
FACTUAL AND PROCEDURAL BACKGROUND
As we discussed in a prior opinion arising from this same litigation,
Overland alleges Petitioners, along with other defendants that did not join in
the writ petition, defrauded it of multiple parcels of real property and seeks
to recover title to the parcels. (Sunrise Financial, LLC v. Superior Court
(2019) 32 Cal.App.5th 114, 119-120 (Sunrise Financial).)
The earliest of the consolidated actions was filed in 2013 and multiple
procedural hurdles and roadblocks precluded the action from proceeding to
trial. (Sunrise Financial, supra, 32 Cal.App.5th at pp. 119-120.) The actions
were stayed while the prior writ proceeding was pending in this court.
Thereafter, a trial date of March 20, 2020 was set. As courts closed across
the state due to the pandemic, the trial court continued the trial date in this
case to September 18, 2020. Thereafter, the court on its own motion
continued trial again until October 23, 2020, and then again to October 26,
2020.
On October 13, 2020, Petitioners filed a “joint emergency health-risk-
based ex parte application . . . to continue the trial” for at least six months.
3
Petitioners argued there was good cause to continue the trial because it
would require a large indoor gathering of numerous people who would be at
risk of contracting COVID-19, some of whom are at increased risk from the
virus because they are older and infirm. Petitioners further argued holding
the trial would violate the presiding judge’s general order and the County of
San Diego Health Officer’s orders restricting the size of indoor gatherings.
As “circumstances unique to this action” allegedly showing good cause for the
continuance, Petitioners listed logistical problems and lack of safety
precautions at the courthouse; the involvement of parties, attorneys, and
witnesses who do not live in San Diego; personal and family hardships of
attending trial in person during the pandemic; the risk of contagion and the
need to prevent a “ ‘super-spreader event’ ”; and the lack of any priority for
this civil litigation.
Overland opposed the application on the ground Petitioners had not
shown good cause for the requested continuance. Overland contended the
trial court had adequate protocols to address COVID-19 concerns; Petitioners’
concerns about the increased risk of COVID-19 to certain trial participants
were not adequately supported by evidence; the family hardship and
inconveniences raised by Petitioners would exist regardless of the pandemic;
parties with health concerns could attend by videoconference; the trial court
had cleared the trial with the presiding judge; the health officer’s restrictions
on gatherings did not apply to the “essential business” of the courts; and
other factors in the applicable rule of court supported denial of the
continuance. (See Cal. Rules of Court, rule 3.1332(d).)
The trial court held a hearing on October 14, 2020, found no good cause
to continue the trial, and denied Petitioners’ application. In a detailed
minute order issued five days later, the court set out protocols for the trial.
4
Only one witness would be allowed in the courtroom at a time, would testify
behind a plexiglass shield, and the witness stand would be cleaned between
witnesses. Counsel would use the podium between counsel tables or sit at
counsel table to question witnesses, and the podium would be cleaned after
each use. Those handling exhibits would wear gloves. In addition to the
witness and court staff, only 14 persons would be allowed in the courtroom at
any given time, with four seats allocated to Overland; three to Wells Fargo,
N.A., three to A & S Park Boulevard, LLC; three to Sunrise Financial, LLC,
Nice Team, LLC, and E & E Mortgage Bankers Corp.; and one to the
Aframians. Each side would also be allowed one technician in the courtroom
during its presentation. During breaks and recesses, the courtroom deputy
would dismiss trial participants to ensure social distancing. Parties not
physically present in the courtroom would be permitted to observe the
proceedings remotely by videoconference.
Following the trial court’s denial, Petitioners filed a petition for writ of
mandate in this court challenging the trial court’s order and seeking an
immediate stay. In support of their writ petition, Petitioners moved for
judicial notice of 14 “documents reflecting official acts and enactments of
federal, state, and county governments relating to the ongoing Covid-19
pandemic.” (See Evid. Code, §§ 452, 459.) They contend the documents “are
relevant to show the extraordinary health risks posed by the Covid-19
pandemic and the extraordinary lengths to which governments have gone—
and have required their citizens to go—in order to slow the spread of the
virus. This essential factual backdrop makes clear the extent to which the
trial court has abused its discretion in ordering an in-person trial in this
large, multi-party consolidated action.”
5
On October 23, 2020, this court summarily denied the writ petition but
granted Petitioners’ motion and supplemental motion for judicial notice. On
October 26, trial commenced as planned while the Supreme Court considered
a petition for review. Later that same day, the Supreme Court stayed trial
court proceedings while it considered the petition for review. On November
6, 2020, the Supreme Court granted the petition for review and transferred
the matter with directions to this court to vacate the denial order and to issue
an order to show cause why relief should not be granted. Having now
followed the directions of the Supreme Court, we consider the merits of the
writ petition.
DISCUSSION
I
Petitioners pray for a writ directing the trial court to vacate its order
denying their application for a six-month continuance of the trial and to enter
a new order granting the application. They assert the trial court erred by
denying the continuance because the health risks from the COVID-19
pandemic to participants in the trial, some of whom are elderly and have
underlying medical problems that put them at increased risk from COVID-
19, constitute good cause for the continuance.
We begin, as we must, with the standard of review. “However
convoluted the facts, or complex the issues, the standard of review is the
compass that guides the appellate court to its decision. It defines and limits
the course the court follows in arriving at its destination. Deviations from
the path, whether it be one most or least traveled, leave writer and reader
lost in the wilderness.” (People v. Jackson (2005) 128 Cal.App.4th 1009,
1018.)
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Petitioners fail to address the proper standard of review in their
petition, which likely affects their entire presentation of the issues before this
court. “Arguments should be tailored according to the applicable standard of
appellate review.” (Sebago, Inc. v. City of Alameda (1989) 211 Cal.App.3d
1372, 1388.) As courts have advised counsel, “counsel’s failure to
acknowledge the proper standard of review might, in and of itself, be
considered a concession of lack of merit.” (James B. v. Superior Court (1995)
35 Cal.App.4th 1014, 1021.)
As real parties in interest correctly argue in their return to the petition,
we review a trial court’s ruling on a request to continue trial under the abuse
of discretion standard of review. (Stroud v. Superior Court (2000) 23 Cal.4th
952, 968.) “A ruling that constitutes an abuse of discretion has been
described as one that is ‘so irrational or arbitrary that no reasonable person
could agree with it.’ ” (Sargon Enterprises, Inc. v. University of California
(2012) 55 Cal.4th 747, 773, quoting People v. Carmony (2004) 33 Cal.4th 367,
377.) A Court of Appeal “should not disturb the exercise of a trial court’s
discretion unless it appears that there has been a miscarriage of justice. . . .
‘It is fairly deducible from the cases that one of the essential attributes of
abuse of discretion is that it must clearly appear to effect injustice.
[Citations.] 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 has been a miscarriage
of justice a reviewing court will not substitute its opinion and thereby divest
the trial court of its discretionary power.’ ” (Denham v. Superior Court (1970)
2 Cal.3d 557, 566.)
7
Under this deferential standard of review, this court is not tasked with
independently determining whether we believe a continuance was warranted
under the circumstances that existed at the time the trial court considered
the request for a continuance. “We could therefore disagree with the trial
court’s conclusion, but if the trial court’s conclusion was a reasonable exercise
of its discretion, we are not free to substitute our discretion for that of the
trial court.” (Avant! Corp. v. Superior Court (2000) 79 Cal.App.4th 876, 881-
882.)
While acknowledging the deferential standard of review, we must also
consider the trial court’s order denying the request for continuance in the
proper policy context. The Legislature has tasked trial court judges with “the
responsibility to eliminate delay in the progress and ultimate resolution of
litigation, to assume and maintain control over the pace of litigation, to
actively manage the processing of litigation from commencement to
disposition, and to compel attorneys and litigants to prepare and resolve all
litigation without delay, from the filing of the first document invoking court
jurisdiction to final disposition of the action.” (Gov. Code, § 68607.) To fulfill
this responsibility, they must “[c]ommence trials on the date scheduled” and
“[a]dopt and utilize a firm, consistent policy against continuances, to the
maximum extent possible and reasonable, in all stages of the litigation.” (Id.
at subds. (f), (g).) As such, requests for continuance are disfavored and a trial
court may grant a request “only on an affirmative showing of good cause
requiring the continuance.” (Cal. Rules of Court, rule 3.1332(c).)
“A motion for continuance is addressed to the sound discretion of the
trial court. [Citation.] However, ‘ “[t]he 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
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hearing is reversible error. [Citations.]” ’ [Citation.] [¶] ‘Judges are faced
with opposing responsibilities when continuances . . . are sought. On the one
hand, they are mandated by the Trial Court Delay Reduction Act (Gov. Code,
§ 68600 et seq.) to actively assume and maintain control over the pace of
litigation. On the other hand, they must abide by the guiding principle of
deciding cases on their merits rather than on procedural deficiencies.
[Citation.] Such decisions must be made in an atmosphere of substantial
justice. When the two policies collide head-on, the strong public policy
favoring disposition on the merits outweighs the competing policy favoring
judicial efficiency. [Citation.]’ ” (Oliveros v. County of Los Angeles (2004) 120
Cal.App.4th 1389, 1395.)
In rule 3.1332 of the California Rules of Court, the Judicial Council set
forth multiple possible grounds for a continuance. (Id. at rule 3.1332(c).)
Here, in their application for a continuance, Petitioners cite only two of these
circumstances: “[t]he unavailability of a party because of death, illness, or
other excusable circumstances” and “[t]he unavailability of trial counsel
because of death, illness, or other excusable circumstances.” (Id. at rule
3.1332(c)(2), (3).) They asked the trial court to consider the relevant factors
and also relied on the “catch-all” provision permitting a court to consider
“[a]ny other fact or circumstance relevant to the fair determination of the
motion or application.” (Id. at rule 3.1332(d)(11).)
Petitioners did not focus on the present illness or death of parties or
counsel, but rather the threat of illness or death.1 As framed in their
application, “[p]ostponement is warranted because an in-person trial in a
1 While it is not the focus of the continuance request, Petitioners do rely
on the declaration of one party representative who was ill and advised to not
travel. As we discuss post, the trial court’s order allowing parties to attend
remotely addressed this one concern.
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limited-capacity courtroom with a substantial number of participants is a
large gathering that violates state and county guidance and orders and is
contrary to public policy against exacerbating the spread of Covid-19. The
age, condition, and health of many trial participants places them at clear risk
for serious health complications, including severe illness and death from
Covid-19.”
As Petitioners note, this case is not the first in which an appellate court
considers whether good cause exists to continue a trial during the COVID-19
pandemic. The other cases to consider the issue, however, have arisen in
circumstances distinguishable from this case. In Stanley v. Superior Court of
Contra Costa County (2020) 50 Cal.App.5th 164, the First District, Division
Four, upheld a trial court decision that the pandemic constituted good cause
to continue a criminal trial. (Id. at p. 170.) In Bullock v. Superior Court
(2020) 51 Cal.App.5th 134, Division Five of the First District found the trial
court abused its discretion in finding good cause to continue a preliminary
hearing in a criminal proceeding. (Id. at p. 140; see also Lacayo v. Superior
Court (2020) 56 Cal.App.5th 396, 399-400 [trial court abused its discretion in
continuing preliminary hearing].) In In re M.P. (2020) 52 Cal.App.5th 1013,
the Second District, Division Five, held that a juvenile court abused its
discretion in continuing a hearing in a juvenile dependency proceeding
without considering the children’s interests. (Id. at p. 1022.) None of those
cases involved the situation presented in this writ proceeding, in which
litigants in a civil proceeding challenge a trial court’s decision to allow a
bench trial to proceed during the pandemic.
Turning to the merits, we must consider whether the trial court abused
its discretion in finding Petitioners did not establish good cause for a
continuance. In support of their application, Petitioners relied on
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declarations from trial participants falling into three categories to establish
good cause: parties, witnesses, and attorneys. Given the trial court’s
detailed order setting forth protocols for trial, it is important to consider each
category of trial participants in turn.
Several parties submitted declarations, either on their own behalf or
declarations from their physicians, discussing their personal concerns with
contracting COVID-19 at trial. Although we do not discount their concerns,
they fail to establish good cause to continue trial because their attendance at
trial is not necessary. Although the trial court’s order provided that each
party would be afforded a seat for a representative in the courtroom, the trial
court also established means for parties to attend the trial via
videoconference over the internet. Although the parties challenge their
exclusion from the courtroom, as we will discuss post, this accommodation
addresses their concerns about contracting COVID-19. By participating
remotely, they can avoid the personal risk associated with attending trial in
person.
Next, Petitioners rely on a declaration from counsel for Wells Fargo
detailing concerns about several witnesses. The declaration merely states
that some witnesses are between 63 and 73 years of age and, therefore, at an
increased risk. The trial court granted the specific request of one of these
witnesses to testify remotely. Moreover, the court indicated to counsel that it
would allow witnesses to testify remotely upon stipulation of counsel or,
absent a stipulation, upon a showing of good cause.
For the remaining witnesses, which may also include several parties,
Petitioners offered no particularized explanation for their heightened risk
beyond their age and asked the trial court to accept this single fact as
sufficient to warrant a continuance. At least one treatise has recognized that
11
although “COVID-19 circumstances may indicate good cause warranting a
continuance (e.g., attorney, client or a witness tested positive for COVID-19
or who is in quarantine after exposure to a person who has tested positive for
COVID-19),” a request based on these circumstances may require “a
physician’s declaration or other documentation.” (Wegner et al., Cal. Practice
Guide: Civil Trials and Evidence (The Rutter Group 2020) ¶ 1:358, pp. 1-105-
1-106.) Here, Petitioners submitted no such declaration from a physician or
other documentation regarding any witness.
Moreover, the trial court’s order recognizes the potential risk to
witnesses and institutes appropriate responsive measures. The trial court
determined that only one witness would be allowed inside the courtroom at a
time, would be able to maintain social distancing and testify behind a
plexiglass shield, and would also be permitted to request to wear a mask
while testifying. The witness stand would be sanitized between each witness.
Petitioners presented no evidence establishing that these measures
were inadequate. Instead, they fault the trial court of failing to provide
sufficient evidence to support the measures. Petitioners suggest that the
court had a duty to demonstrate it consulted with a “health professional” or a
“representative of the State of California or the County of San Diego” to
provide advice on safety measures. This contention ignores the scope of our
appellate review. “It is a fundamental principle of appellate procedure that a
trial court judgment [or order] is ordinarily presumed to be correct and the
burden is on an appellant to demonstrate, on the basis of the record
presented to the appellate court, that the trial court committed an error that
justifies reversal of the judgment [or order].” (Jameson v. Desta (2018) 5
Cal.5th 594, 608-609.) Under the abuse of discretion standard of review,
Petitioners must confront the “ ‘daunting task’ ” to “demonstrate that the
12
ruling was arbitrary, capricious, whimsical, or exceeded the bounds of
reason.” (Dreamweaver Andalusians, LLC v. Prudential Ins. Co. of America
(2015) 234 Cal.App.4th 1168, 1171.) The limits of our review preclude us
from presuming the trial court erred or speculating that the court failed to
properly consider the risks involved. Without evidence from Petitioners
establishing that the trial court’s carefully-crafted order was arbitrary or
capricious, we will not presume the court abused its discretion based on
Petitioners’ unfounded concerns.
Moreover, a party requesting that a trial be continued due to the
absence of a witness bears the burden of showing that the witness’s
testimony is material and allowing the opposing party to admit the content of
the witness’s testimony. (Code Civ. Proc., § 595.4; see also Padda v. Superior
Court (2018) 25 Cal.App.5th 25, 28.) Petitioners made no such showing here.
Thus, even if we assume some of these witnesses may be unavailable,
Petitioners failed to establish that their unavailability constitutes good cause
for a continuance.
Finally, Petitioners rely on several declarations from counsel, who
claim for a variety of reasons that trial should be continued. Most of these
attorneys, all of whom reside in the Los Angeles area, do not rely on specific
health issues, but rather list their concerns—including arranging childcare,
lodging, and food during trial—that will make it difficult or inconvenient for
them to attend trial in San Diego. Two attorneys contend that underlying
health conditions place them at higher risk, but neither adequately
establishes that he is “unavailable.” One attorney expressly refused to
“disclose particulars of my health other than in camera.”
Although the trial court could consider these declarations in
determining whether to continue trial, and this court can understand the
13
difficulties presented to counsel in having to attend an out-of-town trial, none
of the attorneys establish that they are “unavailable.” (Cal. Rules of Court,
rule 3.1332(c)(3).) At most, they credibly establish that they would prefer to
not attend trial during the COVID-19 pandemic.
While understandable, the preferences of counsel, when balanced
against the trial court’s interest in ensuring this long-delayed trial was
resolved, do not establish that the trial court abused its discretion in deciding
to deny the continuance request and allow the trial to proceed under the
implemented measures intended to lessen the risk to all involved, including
the court itself.
Considered altogether, the declarations submitted by Petitioners may
establish that attending trial would have been difficult under the
circumstances. These difficulties, however, were considered by the trial
court, which addressed the concerns by preparing a detailed list of safety
measures it would take during trial. In finding these measures to be
adequate to sufficiently ameliorate the risk, the trial court did not abuse its
discretion in finding no good cause to continue the trial.
II
Perhaps in recognition that they could not establish an abuse of
discretion by the trial court, Petitioners focus on their contention that, as a
matter of law, trial could not commence under the applicable superior court
orders and county and state public health orders. Although they do not
contend that absolutely no trial could proceed under any circumstances, they
repeatedly assert that there cannot be “a trial in this case, in this courtroom,
at this time.” The record, however, does not support this contention.
Petitioners rely on the “Order of the Health Officer and Emergency
Regulations” issued by the Public Health Officer of the County of San Diego
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to support their claim that no trial may occur in this case. That order, which
went into effect on October 10, 2020, directed that all persons are to remain
in their homes “except for employees or customers traveling to and from
essential businesses or reopened businesses as defined in sections 10 and 11,
below, or to participate in individual or family outdoor activity as allowed by
this Order.” The order also prohibits all “gatherings,” as defined in the order,
that do not comply with the requirements of the California Department of
Public Health Guidance for Private Gatherings. The order, however,
specifies that the definition of “gatherings” does not include “[o]perations at
essential businesses as defined in section 10a.” Section 10a defines
“[e]ssential business” as “any business or activity . . . designated by the State
Public Health Officer as [‘]Essential Critical Infrastructure Workers.[’] ” In
the list published by the State Public Health Officer, “government
operations” are included in the definition of “Essential Critical Infrastructure
Workers,” including “[t]he Courts, consistent with guidance released by the
California Chief Justice” and “[p]rofessional services, such as legal . . .
services, when necessary to assist in compliance with legally mandated
activities and critical sector services.”
Petitioners acknowledge that these health orders permit the courts to
function as “essential businesses,” but note that the order allows essential
businesses to operate only if “remote working is not practical.” They contend
that the trial court failed to find that a remote trial is not practical and,
therefore, this trial is impermissible under the health order.
Petitioners, however, then claim in a footnote that they are not
advocating for a remote trial, admitting that a remote trial would not be
“desirable,” but claim that a remote trial “is at least possible.” The health
orders, however, do not require a showing that remote work is impossible, but
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merely not practical. Petitioners implicitly admit a remote trial is not
practical here in acknowledging a remote trial would not be “desirable” for “a
case this complex.” Moreover, in claiming the parties have an absolute right
to all be physically present in the courtroom during trial, as discussed post,
Petitioners argue a position entirely inconsistent with permitting a remote
trial. Regardless, as discussed ante, Petitioners bear the burden of
demonstrating the trial court’s order was arbitrary or capricious. Despite
bearing this burden, Petitioners make no effort to show that a remote trial
would be practical. Accordingly, Petitioners fail to demonstrate that holding
an in-person trial would violate the state and county health orders.
Next, Petitioners turn to the September 9, 2020, Order No. 090920-90
issued by the presiding judge of the superior court. In that general order, the
presiding judge superseded earlier orders closing the court and provided for
in-person trials to resume, including jury trials. The order details the
portions of the courthouse that would be open to the public and requires that
any in-person access “shall be subject to county, state, and federal public
health guidance and other general orders of this court, including, but not
limited to, social-distancing, face-covering, and screening requirements.”
Although the order does not list any courtrooms as being open to the public, it
acknowledged that trials would resume and permitted access to such
proceedings to “judges, commissioners, court staff, jurors, parties, attorneys,
witnesses subpoenaed to testify . . . one assistant or support person if granted
in response to an ADA request, and other authorized persons,” later defined
as including the media.
In a separate order, Order No. 090920-89, the Presiding Judge granted
priority to in-custody criminal jury trials over all other jury trials and
ordered that “all courtrooms available for jury trials will be used to conduct
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in-custody criminal jury trials.” That order, however, permitted a judicial
officer to prioritize and commence a non-criminal trial for good cause. In
such a case, the order requires the judicial officer to “communicate to the
Presiding Judge the facts for and against the determination of priority over
in-custody criminal jury trials.”
Petitioners contend the trial court violated these orders by allowing the
trial to proceed in this case. They contend that “the rock-bottom minimum
requirements for proceeding with any kind of in person trial ought to include
(a) a written petition by the trial judge to the Presiding Judge demonstrating
both good cause and detailed protocols, established in consultation with
qualified professionals, for guaranteeing—not just hoping for—the safety of
all participants and (b) a written order from the Presiding Judge assessing
the sufficiency of the cause shown and of the safety guarantees.”
Petitioners provide no basis to support such strict requirements. The
presiding judge’s order requires only that the judicial officer “communicate”
with the presiding judge regarding a non-criminal trial. Likewise, the
general orders do not require a written order to allow such a trial to proceed.
Although General Order No. 090920-89 prioritizes criminal jury trials, it also
notes that the court would only be able to conduct two criminal trials during
the week of October 26, when trial in this proceeding was set to begin. Given
the slow start to criminal jury trials, the court obviously had a surplus of
courtrooms available during the week of October 26 to conduct proceedings
other than criminal jury trials such that a trial in this case would not
preclude a criminal trial from occurring.
Petitioners acknowledge that the trial court apparently
“communicated” with the presiding judge regarding this trial and, based on
that communication, informed the parties that the presiding judge had
17
consulted with others and “authorized us to resume bench trials in person.”
We decline Petitioners’ request that we interfere with the internal affairs of
the superior court by imposing specific requirements for the communications
between trial judges and the presiding judge regarding the scheduling of
trials when no such requirement is supported by any order, rule, or statute
cited by Petitioners.
Thus, Petitioners fail to demonstrate that the state, county, or superior
court orders categorically preclude this trial from occurring. Although they
continue to raise various concerns about cleaning and access, the trial court’s
order considered these concerns and these matters were within the discretion
of the trial court. Despite their efforts to convince this court that additional
measures are required, they fail to show any abuse of discretion by the
superior court. This court will not substitute its judgment for that of the trial
court.
III
Petitioners also contend that the trial court’s order violates the right of
the parties to be physically present at trial. Petitioners contend that “parties
have both a statutory and a constitutional right to be present in the
courtroom during trial, to communicate with counsel in real time, to give
counsel the benefit of their percipient factual knowledge, and to assist in
cross-examination.”
Petitioners, however, fail to establish any absolute right to be
physically present in the courtroom. They rely on Evidence Code section 777,
which permits a trial court to exclude witnesses from the courtroom with the
qualification that “[a] party to the action cannot be excluded under this
section.” (See also People ex rel. Curtis v. Peters (1983) 143 Cal.App.3d 597,
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601-602.) They also assert a constitutional due process right to be present at
trial.
However, California courts, including this court, have consistently held
that there is no absolute right for parties to be present at trial and that the
due process right to be present at trial can be protected when a party is
represented by counsel. (See, e.g., Morales v. 22nd Dist. Agricultural Assn.
(2016) 1 Cal.App.5th 504, 536; Arnett v. Office of Admin. Hearings (1996) 49
Cal.App.4th 332, 338-339; Province v. Center for Women’s Health & Family
Birth (1993) 20 Cal.App.4th 1673, 1686-1687.)
Although the parties indisputably have an interest in being physically
present in the courtroom, the extraordinary circumstances presented by the
COVID-19 pandemic warrant the physical exclusion of some parties from the
courtroom while maintaining the ability to watch the proceedings via a live
video feed. The court balanced the competing interests by allowing party
representatives to be present in the courtroom with additional parties
participating remotely. Despite Petitioners’ claim to the contrary, the trial
court did not exclude some parties from the courtroom as a matter of
“expediency,” but rather to protect the health of all involved. Petitioners
cannot inconsistently claim that the trial court had no reason to exclude some
parties from the courtroom while at the same time asserting that the court
must comply with health guidance recommending social distancing and
limited gatherings. Given the difficult circumstances, the trial court
balanced the competing interests and protected the parties’ interest in
viewing the proceedings to the greatest extent possible. Although Petitioners
believe that these competing interests could be protected by a continuance,
we have already concluded that the trial court did not abuse its discretion in
denying the request for a continuance.
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IV
All parties ask this court to take judicial notice of certain documents,
many of them relating to changed circumstances since the trial court’s order
denying the application for a continuance. We grant all of these requests for
judicial notice, but they do not affect the outcome of this proceeding to the
extent they were not provided to the trial court or were issued after the trial
court’s rulings. “Although a reviewing court may take judicial notice of
matters not before the trial court, . . . the reviewing court need not give effect
to such evidence.” (Doers v. Golden Gate Bridge etc. Dist. (1979) 23 Cal.3d
180, 184, fn. 1.)
Here, Petitioners applied for a continuance on the basis that the trial
could not be safely conducted on October 26, 2020. They supported their
application with the circumstances of the parties, the prevalence of COVID-
19 in the community, and the public health orders as they existed at that
point in time. When reviewing whether the trial court abused its discretion
in denying the request for a continuance, our review is limited to the evidence
before the court when it heard the request. (See People v. Hartsch (2010) 49
Cal.4th 472, 491.) “Thus, ‘[m]atters occurring after entry of judgment are
ordinarily not reviewable: The appeal reviews the correctness of the
judgment or order as of the time of its rendition, leaving later developments
to be handled in subsequent litigation.’ ” (In re Francisco W. (2006) 139
Cal.App.4th 695, 706.) This principle applies equally in this writ proceeding.
A change in circumstances after entry of the order may render an
appeal moot, but no party here has asked the court to dismiss this original
proceeding as moot. Thus, we review only whether the trial court abused its
discretion in finding no good cause to continue trial beyond the scheduled
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date of October 26, 2020. As discussed ante, we hold that the court did not
abuse its discretion.
At oral argument, counsel for Petitioners suggested this court could
consider the current circumstances and issue an opinion providing guidance
for the trial court to consider when it schedules trials and other proceedings,
including guidance that trial in this proceeding should be continued
indefinitely. Such relief, however, is beyond the scope of the writ petition. In
their prayer for relief, Petitioners simply asked this court to issue a writ
directing the respondent court to vacate its order denying their application
for a continuance and to enter a new order granting the application.
Thus, at most, the only relief requested was to direct the respondent
court to continue trial to April 2021. Upon finality of this writ proceeding,
petitioners will have largely received the relief requested and any attempt by
this court to prospectively determine whether trial should proceed would be
improper. At that time, the situation may have worsened, making any trial
inadvisable. Conversely, it is equally possible that the widespread
vaccination of the population will have significantly lessened the public
health concerns relied upon by Petitioners. In either scenario, it would be
improper for this court to attempt to determine whether a future trial date
should be continued for good cause. Any such determination must be
presented to the trial court in the first instance.
We do not, however, intend to ignore the change in circumstances or
the dynamic situation presented by the COVID-19 pandemic. Rather, it is
simply too difficult, if not impossible, for this court to forecast the situation
that will exist upon the finality of these writ proceedings, which may be
delayed by additional Supreme Court review. Given the shifting nature of
the pandemic, trial courts must maintain flexibility to address the local
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situation as it exists at the time it considers the scheduling of trials and other
court proceedings, as recognized by the California Chief Justice. Included in
the requests for judicial notice was an advisory issued by Chief Justice
Cantil-Sakauye on December 7, 2020. In that advisory, the Chief Justice
notes that “our courts are exempt from closure,” recognizes that statewide
orders would be “inappropriate and would impair the flexibility trial and
appellate courts need to respond to local conditions and access to justice,” and
reaffirms the ability of courts to “assess their circumstances and ability to
operate under their local constraints.” (Ibid.) Following the lead of our Chief
Justice, we will not interfere with the trial court’s discretion to “continue to
balance constitutional and statutory rights with the safety and health of all
court users, employees, jurors, justice partners, and judicial officers.” (Ibid.)
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DISPOSITION
The petition for writ of mandate is denied. The stay issued by the
Supreme Court of California on October 26, 2020, will expire 10 days after
finality of this opinion. The opinion will be final as to this court 10 days after
the date of filing. (Cal. Rules of Court, rule 8.490(b)(2)(A).) The parties shall
bear their own costs.
O’ROURKE, J.
WE CONCUR:
BENKE, Acting P. J.
HUFFMAN, J.
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