IRION, J.
Plaintiff Maravilla Center, LLC (Maravilla), and plaintiffs and cross-defendants Valley Circle Estates Realty Co., Rezinate Construction Corp. and Robert Z.
Appellants and Rezinate San Jacinto, LLC (Rezinate), filed the underlying action in December 2009.
In April 2010, the court granted Appellants' (and Rezinate's) motion for a preliminary injunction, restraining First-Citizens from conducting a nonjudicial foreclosure of approximately 2.5 acres of specifically identified real property in San Jacinto (Property). At the time, the operative complaint was a first amended complaint, alleging causes of action for specific performance, breach of contract, intentional interference with prospective business opportunity, declaratory relief and injunctive relief. In this since-superseded pleading, Appellants alleged the following facts: Maravilla acquired the Property in January 2006 and then began to develop it into a 30,000-square-foot commercial, retail and office center; to this end, in June 2007, Appellants and Rezinate entered into a series of agreements with Temecula Valley Bank (TVB) that resulted in a TVB loan of approximately $6.5 million; in the fall of 2008, by which time TVB had advanced approximately $2.5 million of the loan, certain of Appellants and Rezinate entered into an agreement with TVB, pursuant to which Maravilla would be allowed to pay off the loan with a release of all guarantors in exchange for a payment of approximately $820,000 by October 1, 2009; in mid-July 2009, the FDIC closed TVB, and First-Citizens took over its operations; in August 2009, Maravilla obtained a loan commitment sufficient to make the $820,000 payment, but First-Citizens refused to perform under the fall 2008 agreement with TVB.
As relevant to the issues on appeal, the register of actions indicates that in December 2011 the court set an initial trial date of June 15, 2012, two and a half years after the filing of the complaint. Between April 2012 and the August 2013 trial, Robert (and on occasion all Appellants and Rezinate) filed nine ex parte applications to continue the trial date, four of which were granted and five of which were denied, as we will explain in greater detail.
By ex parte application filed April 16, 2012, Robert
By ex parte application filed October 17, 2012, Appellants asked that the court continue for 45-60 days the pending dates for the hearing on First-Citizens' motion for summary adjudication, the mandatory settlement conference and trial. In addition, Appellants asked that the court stay all discovery and extend all pending discovery deadlines until December 30, 2012. As evidentiary support, Robert included his declaration and the declarations of Stanton (counsel of record for the entity Appellants) and A. James Khodabakhsh, M.D., one of Stanton's doctors. The evidence suggested that Robert continued to suffer from the cardiac condition (including recovery from open-heart surgery) and that Stanton had cataracts and needed surgery on both eyes. Stanton testified as to the prejudice Appellants would suffer without the extensions of time and discovery stay, and Robert testified as to his reliance on Stanton's expertise in drafting pleadings. First-Citizens opposed the application, arguing that the litigation had been pending almost three years and that the balancing of the factors under rule 3.1332(d) favored First-Citizens; it also urged the court not to stay discovery or to extend discovery deadlines. First-Citizens quoted from the minute order and transcript of the hearing on Robert's first application, where the court warned the parties that the new January 2013 date was "`a firm date.'" (See fn. 5, ante.) On October 17, 2012, the court granted the application, continuing the dates; the new trial date was more than five months later (one and a half months later than previously scheduled) on March 1, 2013. (All further dates are in 2013, unless indicated otherwise.)
By ex parte application filed January 4, Robert asked that the court extend all pending discovery deadlines for Appellants, reopen discovery for Appellants, continue the pending date for the hearing on First-Citizens' motion for summary adjudication, and continue for 90 days the mandatory settlement conference and trial. Robert's application indicated that the evidence in support of the application was included in his accompanying declaration and the accompanying declarations of Stanton and Ali Khoynezhad, M.D., another of Robert's doctors, but the record on appeal does not contain the declarations. In support of the application, Robert again argued that the ongoing condition of his health — in particular, low blood pressure — necessitated the additional time and that he alone knew the facts of the case. First-Citizens opposed the application, repeating most of its previous arguments and emphasizing Appellants' pattern of delay and missed deadlines combined with Robert's physical ability to participate in some litigation responsibilities. On January 8, the court granted the application, continuing the dates; the new trial date was more than four months later (one and a half months later than previously scheduled) on May 17.
By ex parte application filed March 13, Robert asked that the court extend all pending discovery deadlines for Appellants until mid-May, continue the pending date for the hearing on First-Citizens' motion for summary adjudication for 90 days until mid-June, and continue the mandatory settlement conference and trial for 90 days until mid-August. As evidentiary support, Robert included his declaration, his amended declaration and the declaration of Khoynezhad. Robert again argued that the ongoing condition of his health — again, low blood pressure — necessitated the additional time. First-Citizens opposed the application, repeating most of its previous arguments, again emphasizing Appellants' pattern of delay and missed deadlines combined with Robert's physical ability to participate in some litigation responsibilities. On March 14, the court denied Robert's application, which left May 17 as the date for trial. At the hearing, the court found that the declarations did not establish the requisite good cause for the continuance of the trial and reminded Robert of the court's prior admonitions to get an attorney to represent him in the action, especially if his health was failing.
By ex parte application filed March 15, Robert (supposedly on behalf of all plaintiffs) asked that the court continue the trial for at least 60 days, until after July 17. As evidentiary support, Robert included a declaration from Raul B. Garcia, an attorney, and a request that the court also consider the evidence of Robert's medical condition from the fourth application filed (and denied) two days earlier. Robert had signed a form substituting Garcia as his (Robert's) attorney of record, and Garcia testified that the remaining Appellants (and Rezinate) would sign similar forms but only if the trial was continued at least 60 days.
Within two months of the court's expressed concerns that (1) the business entities could only appear through counsel, and (2) Robert would fire Garcia, on May 14 all Appellants (including the business entities) filed forms substituting Robert in place of Garcia. Another two months later, by ex parte application filed July 17 — less than a month before the scheduled trial date of August 9 — Robert asked that the court continue the trial for 90-120 days.
Two weeks later, just nine days before trial, by ex parte application filed July 31 Robert asked that the court continue the trial — and all related dates, including discovery cutoff — for 90 days.
Four days later, by ex parte application filed August 5 (to be heard Aug. 6, just three days before trial), Robert again asked that the court continue the trial — and all related dates, including discovery cutoff — for 90 days.
The next day, August 7, Robert filed an ex parte application (to be heard one day before trial, August 8),
On the morning of the first day of trial on August 9, Garcia substituted in as counsel for Robert. After an unsuccessful attempt at mediation, the parties were assigned to Judge Riemer's courtroom for trial, whereupon Maravilla filed a peremptory challenge to Judge Riemer which was granted. (Code Civ. Proc., § 170.6.) From what we can tell from the register of actions, the parties were told to return on August 12, at which time they were assigned to Judge Ottolia's courtroom.
Meanwhile, earlier in the morning on August 12, Appellants and Rezinate (all represented by Creamer) had filed a petition for writ of mandate in the Court of Appeal seeking an emergency stay of the trial court proceedings and a 90-day continuance of the trial date and all related dates.
Also during the chambers conference, for the first time Garcia informed the court and First-Citizens that earlier that same morning, Rezinate had filed for bankruptcy — in a chapter 7 petition signed by Robert, as Rezinate's managing member. Appellants and Rezinate then filed a notice, asserting that the automatic stay in Rezinate's bankruptcy case stayed the entire action as to all parties and claims.
Later in the day on August 12, the Court of Appeal denied the writ petition.
When the parties returned for trial on August 14, First-Citizens presented — and the court granted — a motion to sever Rezinate and proceed to trial with the others.
In discussing the next issues raised by First-Citizens' pleadings, Garcia represented to the court:
After indicating its intention to "proceed like a prove-up," First-Citizens moved to proceed under Code of Civil Procedure section 594.
In posttrial proceedings, the court determined that First-Citizens was entitled to $1,157,717.35 in attorney fees and costs against all Appellants jointly and severally and filed an amended judgment containing the original rulings and this additional award.
Appellants timely appealed.
On appeal, Appellants contend the trial court erred in failing to continue the trial on two independent grounds: (1) the court abused its discretion under rule 3.1332(c)(2) based on the evidence of Robert's health; and (2) the court failed to comply with rule 1.100's requirement that courts must accommodate an individual with a disability. We disagree with the first ground, but agree in part with the second.
Robert argues that the trial court erred in denying his fourth, sixth, seventh, eighth and ninth ex parte applications to continue the trial (and related dates).
We review for an abuse of discretion a trial court's order denying a request to continue a trial. (Thurman v. Bayshore Transit Management, Inc. (2012) 203 Cal.App.4th 1112, 1126.) "`The trial court's exercise of that discretion will be upheld if it is based on a reasoned judgment and complies with legal principles and policies appropriate to the case before the court. [Citation.] A reviewing court may not disturb the exercise of discretion by a trial court in the absence of a clear abuse thereof appearing in the record.'" (Ibid.; see Avant! Corp. v. Superior Court (2000) 79 Cal.App.4th 876, 881-882 ["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"].)
The appellant has the burden of establishing an abuse of discretion, keeping in mind that the trial court's judgment is "`presumed correct.'" (Denham v. Superior Court (1970) 2 Cal.3d 557, 564, 566 (Denham).) An appellant does not meet its burden by arguing merely that a different ruling would have been better or more equitable. Rather, a trial court abuses its discretion only if, based on the applicable law and considering all of the relevant circumstances, the decision "`exceeds the bounds of reason.'" (Id. at p. 566.) We must affirm so long as the record contains "sufficient evidence for us to conclude that the action of the trial court was within the permissible range of options set by the legal criteria." (Dorman v. DWLC Corp. (1995) 35 Cal.App.4th 1808, 1815 (Dorman); see Quantum Cooking Concepts, Inc. v. LV Associates, Inc. (2011) 197 Cal.App.4th 927, 932 [no abuse of discretion where the ruling "`"falls within the permissible range of options set by the legal criteria"'"].)
In determining the sufficiency of the evidence, as an appellate court we "may not weigh the evidence or consider the credibility of witnesses. Instead, the evidence most favorable to [the respondent] must be accepted as true and conflicting evidence must be disregarded[,] . . . `indulging every legitimate inference which may be drawn from the evidence in [the respondent's] favor. . . .'" (Campbell v. General Motors Corp. (1982) 32 Cal.3d 112, 118.) Even uncontradicted evidence in favor of an appellant does not establish the fact for which the evidence was submitted. (Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 890 (Foreman).) The issue is not whether there is evidence in the record to support a different finding, but whether there is evidence that, if believed, would support the trial court's finding. (Bowers v. Bernards (1984) 150 Cal.App.3d 870, 872-873.)
Rule 3.1332(a) provides that "the dates assigned for trial are firm," and rule 3.1332(c) provides that continuances are "disfavored" and may be granted "only on an affirmative showing of good cause."
The good cause on which Robert relied in the trial court was his unavailability due to poor health — one indication of good cause expressly recognized at subpart (2) of rule 3.1332(c). On appeal Appellants have focused only on this allegedly good cause, arguing that, because of the strong uncontradicted showing of Robert's unavailability due to poor health, the court was required to grant the requested continuances.
As we introduced ante — contrary to Appellants' presentation — we do not review the record to determine whether there is sufficient evidence to support the ruling Appellants wanted, but rather whether there is sufficient evidence to support the ruling actually made. (Dorman, supra, 35 Cal.App.4th at p. 1815; Denham, supra, 2 Cal.3d at p. 566.) Indeed, by failing to have presented and discussed the evidence in favor of the court's ruling and then to have argued why it is not substantial, Appellants have forfeited their right to challenge the exercise of the court's discretion under rule 3.1332. (Foreman, supra, 3 Cal.3d at p. 881; Huong Que, Inc. v. Luu (2007) 150 Cal.App.4th 400, 410 [before appellate court considers substantiality of evidence, appellant must first present "a fair summary of the evidence bearing on the challenged finding, particularly including evidence that arguably supports it"].) Further, Appellants do not mention, let alone discuss, any of the rule 3.1332(d) factors.
At the time Robert presented his sixth, seventh, eighth and ninth applications, the August 9 trial date was respectively 24 days, nine days, four days and two days away. The August 9 trial date was two years eight months after Appellants filed the action in December 2009 and included 420 days of continuances at Robert's request. In each of the last four requests, Robert sought another 90-day continuance.
The case was not entitled to a statutory preference. However, more than three years earlier, in April 2010 the court had entered a preliminary injunction restraining First-Citizens from conducting a nonjudicial foreclosure of the Property — i.e., the collateral for a loan that was in default — leaving First-Citizens with a defaulted loan and no way to attempt to satisfy its claim other than by trial.
None of the four continuances was by stipulation. To the contrary, First-Citizens filed written opposition with supporting evidence to Robert's final four (and, indeed, all nine of the) applications. Following the sixth application (at which a further continuance was denied), when trial was just three weeks away, First-Citizens had begun final trial preparations and was ready to proceed on a timely basis, despite Appellants' failure to comply with required pretrial procedures.
In sum, Appellants had over three and a half years in which to prepare for trial. Despite Robert's poor health, either by himself or with the assistance of counsel, he succeeded in obtaining a preliminary injunction restraining a foreclosure, followed by nine applications and four continuances of the trial for a total of 420 days. First-Citizens had prepared for trial a number of times and was ready to proceed on August 9. Because the evidence of these other "facts and circumstances" (rule 3.1332(d)) supports the exercise of the trial court's discretion in denying the requested continuances — regardless of the strength of the evidence of "good cause" in support of the requested continuances (rule 3.1332(c)) — Appellants did not meet their burden of establishing an abuse of discretion.
We take very seriously "the policy of the courts of this state," which is to "ensure that persons with disabilities have equal and full access to the judicial system."
Appellants argue that they are entitled to a reversal of the amended judgment, because the trial court failed to rule on Robert's request for accommodation in violation of rule 1.100(e). The record on appeal, however, does not support Appellants' premise; in the August 8 Order, the court expressly ruled on Robert's request by denying his ex parte application. Appellants expand their argument by contending that the court's failure to address the request for accommodation "was, in effect, . . . a denial of the review procedures set forth in Rule 1.100[(g)(2)]." The record does not support this argument either. Rule 1.100(g)(2) provides that, in response to a judicial officer's ruling on a rule 1.100 request for accommodation, "any participant in the proceeding may file a petition for writ of mandate under rules 8.485-8.493 . . . ." In fact, Appellants and Rezinate did just that: On August 12, they timely filed a petition for writ of mandate, initiating the Robert Z. writ proceeding discussed at footnotes 2 and 19, ante. In addition, Appellants are successfully obtaining review in this appeal.
Alternatively, Appellants argue that the trial court erred by failing to provide a written response to Robert's request for accommodation, as required by rule 1.100(e), which is entitled "Response to accommodation request" and provides in full:
Although the August 8 Order does contain a written response denying the application, Appellants are correct in their criticism that it does not include "the reason therefor" as required by rule 1.100(e)(2)(B). The written ruling provides in full: "Ex Parte Application is called for hearing[.] [¶] Ex Parte Application is denied. [¶] Hearing re Jury Trial on 08/09/13 at 8:30 confirmed[.] [¶] Notice does not need to be given of Ex Parte ruling." (Italics added.) Thus, in denying Robert's rule 1.100 request for accommodation under the Americans With Disabilities Act of 1990 (ADA), the court failed to comply with rule 1.100(e)(2)(B)'s requirement that the court's written response to Robert's request provide the reason for the denial.
The grounds for denying a rule 1.100 request are limited:
(See In re Marriage of James & Christine C. (2008) 158 Cal.App.4th 1261, 1265 (James & Christine C.) ["Rule 1.100(f) permits a trial court to deny a request for accommodation under the ADA only if the court makes a determination of at least one of three specifically identified grounds."]; id. at p. 1273 ["[t]he grounds for denying a request for accommodation are limited[,]" citing rule 1.100(f)]; id. at p. 1274 ["The trial court could deny the Second ADA Request only by making a determination of one of the three grounds listed in . . . rule 1.100(f)."]; id. at p. 1276 ["The trial court's control of the judicial process was circumscribed by rule 1.100[(f)], which limited the grounds on which the trial court could deny an ADA request."]; id. at p. 1277 ["In ruling on the Second ADA Request, the only determination to be made was whether any of the grounds listed in . . . rule 1.100(f) for denying the request was present."]; Biscaro, supra, 181 Cal.App.4th at p. 708 ["A court may deny a properly stated request for accommodation for only one of three reasons . . . ."].)
Acknowledging that Robert's request can only be denied under one of the three expressly listed grounds in rule 1.100(f), First-Citizens argues that we can nonetheless affirm the amended judgment (and impliedly the August 8 Order) under two theories that somewhat overlap. Both arguments are based on First-Citizens' contention that, because Robert failed to file his request for accommodation "as far in advance as possible, and in any event . . . no fewer than 5 court days before the requested implementation date" and because Robert failed to "forward[ his request] to the ADA coordinator" within this same time frame, Robert did not comply with rule 1.100(c)(3) and (1), respectively.
First-Citizens' first argument fails, because rule 1.100(e)(2)(B) does not excuse the requirement for a written explanation of the reason for denying a request when the applicant does not comply with rule 1.100(c). To the contrary, noncompliance with rule 1.100(c) is arguably one of the specifically identified grounds for denying the request (rule 1.100(f)(1)) and thus provides a valid basis on which to deny the request so long as the denial is in writing with that explanation. (Rule 1.100(e)(2)(B).) First-Citizens' second argument fails, because according to Biscaro, the court's failure to comply with the "mandatory dut[ies]" required in ruling on a request for accommodation under rule 1.100 is "structural error" that requires a reversal without the necessity of establishing prejudice. (Biscaro, supra, 181 Cal.App.4th at p. 710.)
Accordingly, based on the trial court's failure to have complied with rule 1.100(e)(2)(B)'s requirement that the court provide a written reason for denying Robert's request for accommodation, we reverse the amended judgment. We now consider what directions to provide on remand.
In Biscaro, the trial court never ruled on the defendant appellant's request for accommodation, instead issuing a restraining order against the appellant and entering a default judgment against him. (Biscaro, supra, 181 Cal.App.4th at p. 705.) Based on the court's failure to have ruled on the request for accommodation, the appellate court reversed the judgment and remanded with directions that the trial court "rule on appellant's request for accommodation of his disabilities and for any further proceedings that may be necessary based on that ruling." (Id. at p. 712.) In James & Christine C., the trial court denied the appellant's request for accommodation on an impermissible ground — i.e., one not specified in rule 1.100(f) — and proceeded to enter a family court judgment regarding child custody and visitation, support, attorney fees, and valuation and division of community property. (James & Christine C., supra, 158 Cal.App.4th at pp. 1264-1265, 1271.) Based on the court's erroneous denial of the requested accommodation, the appellate court reversed the judgment, ruled that none of the three grounds specified in rule 1.100(f) (which could have supported the denial of the request) was present and remanded for a retrial of "the entire matter, from the outset." (James & Christine C., at pp. 1277-1278.)
In contrast, here the court did rule on the request, but we do not have sufficient information — namely, a reason for the ruling — to determine whether the ruling was correct. Accordingly, we remand the matter to Judge Trask (who made the rulings contained in the August 8 Order) with directions that, based on the record that was before her on August 8 when she denied Robert's request for accommodation, she provide in writing the reason for the denial, as required by rule 1.100(e)(2)(B). If the stated reason is one or more of those specified in rule 1.100(f), then the court shall reinstate the amended judgment nunc pro tunc to October 3, 2013.
The October 3, 2013 amended judgment is reversed. The matter is remanded to the Honorable Gloria Connor Trask with the following directions: Based on the record that was before the court on August 8, 2013, when the court denied Robert Z.'s August 7, 2013 request for accommodation, Judge Trask shall provide in writing the reason for the August 8, 2013 denial, as required by California Rules of Court, rule 1.100(e)(2)(B). If the stated reason is one or more of those specified in rule 1.100(f), then the court shall reinstate the amended judgment nunc pro tunc to October 3, 2013. If the stated reason is anything other than one or more of those specified in rule 1.100(f) (or if the court reconsiders its ruling and grants the request), then the court shall conduct further proceedings consistent with its ruling on remand.
In the interests of the justice, the parties shall bear their respective costs on appeal. (Cal. Rules of Court, rule 8.278(a)(5).)
HUFFMAN, Acting P. J. and McDONALD, J., concurs.
Rule 1.100 is entitled "Requests for accommodation by persons with disabilities" and provides the procedural and substantive bases for requesting an accommodation, responding to such requests and seeking review of rulings on such requests in order to ensure that persons with disabilities have access to the courts. We have assumed without deciding that, for purposes of this rule, Robert is a "`[p]erson[] with disabilities'"; and we know from Vesco v. Superior Court (2013) 221 Cal.App.4th 275, 279 (Vesco), that a trial continuance is an authorized "`[a]ccommodation[].'" (Rule 1.100(a)(1), (3); see fn. 27, post.)
