Mahoney v. Southland Mental Health Associates Medical Group

• Decision Date: 24 August 1990
• Docket Number: No. B044562,B044562
• Citation: 223 Cal.App.3d 167,272 Cal.Rptr. 602
• Court: California Court of Appeals Court of Appeals
• Parties: Janet MAHONEY, Plaintiff and Appellant, v. SOUTHLAND MENTAL HEALTH ASSOCIATES MEDICAL GROUP et al., Defendants and Respondents.

Page 602

272 Cal.Rptr. 602

223 Cal.App.3d 167

Janet MAHONEY, Plaintiff and Appellant, v. SOUTHLAND MENTAL HEALTH ASSOCIATES MEDICAL GROUP et al., Defendants and Respondents.

No. B044562.

Court of Appeal, Second District, Division 4, California.

Aug. 24, 1990.

Lemaire & Faunce and Steven R. Pingel, Los Angeles, for plaintiff and appellant.

Wood, Lucksinger & Epstein, Naida L. Brown, and Thomas J. Kristof, Los Angeles, for defendants and respondents.

GEORGE, Acting Presiding Justice.

Janet Mahoney appeals from a summary judgment of the superior court entered following denial of her request for a continuance of the hearing on the motion for summary judgment filed by respondents Southland Mental Health Associates Medical Group, Perry Maloff, and Arthur Luban. Appellant does not dispute the substantive correctness of the court's ruling granting the motion for summary judgment but contends the court erred in denying her request for the continuance she sought in order to enable her to file an opposition. For the reasons that follow, we affirm the judgment.

FACTUAL AND PROCEDURAL HISTORY

On May 26, 1987, appellant filed a complaint for damages, alleging, among other claims, that respondents had terminated her employment in breach of her contract and in violation of the implied covenant of good faith and fair dealing. On February 2, 1989, respondents moved for summary judgment on various grounds, including that there had been a novation of her employment contract and that the decision in Foley v. Interactive Data Corp. (1988) 47 Cal.3d 654, 254 Cal.Rptr. 211, 765 P.2d 373 precluded tort recovery for breach of the implied covenant of good faith and fair dealing. On April 17, 1989, respondents filed a notice of nonreceipt of opposition from appellant. After the statutory period for filing an opposition had expired, appellant requested that the hearing on the motion be continued, and the parties thereafter stipulated that the hearing be continued to May 2, 1989.

Appellant's attorney, Steven R. Pingel, appeared at the hearing held on that date. In response to the court's inquiry why Mr. Pingel still had not filed any opposition, he stated he had not done so because, toward the end of the preceding year, the partner in his law firm who was in charge of workers' compensation cases had left the firm. Mr. Pingel requested a second continuance of 30 days. The court asked Mr. Pingel why he had not filed a declaration setting forth the reasons for his request for a continuance. Mr. Pingel stated he had not done so because of lack of time, and because he had contracted the flu and a throat infection one and one-half weeks prior to the hearing, resulting in his being partially incapacitated.

The court denied Mr. Pingel's request for a continuance and granted the motion for summary judgment. Judgment was entered, and appellant filed timely notice of appeal.

DISCUSSION

THE COURT DID NOT ERR IN DENYING APPELLANT'S REQUEST FOR A CONTINUANCE

Appellant contends the superior court erred in denying her request for a continuance which she sought for the purpose of preparing an opposition to the motion for summary judgment. We disagree.

" ' "Generally, power to determine when a continuance should be granted is within the discretion of the court, and there is no right to a continuance as a matter of law. [Citation.]" ' " (American Continental Ins. Co. v. C & Z Timber Co. (1987) 195 Cal.App.3d 1271, 1280, 241 Cal.Rptr. 466.) An exception is created by Code of Civil Procedure section 437c, subdivision (h), which mandates that the court grant a continuance of a hearing on a motion for summary judgment " ' "upon a good faith showing by affidavit that a continuance is needed to obtain facts essential to justify opposition to the motion." ' [Citations.]" (Ibid., emphasis in original.) In the present "[A] reviewing court should not disturb the exercise of a trial court's discretion unless it appears that there has been a miscarriage of justice.... 'Discretion is abused whenever, in its exercise, the court exceeds the bounds of reason, all of the circumstances before it being considered. The burden is on the party complaining to establish an abuse of discretion, and unless a clear case of abuse is shown and unless there has been a miscarriage of justice a reviewing court will not substitute its opinion and thereby divest the trial court of its discretionary power.' [Citations.]" (Denham v. Superior Court (1970) 2 Cal.3d 557, 566, 86 Cal.Rptr. 65, 468 P.2d 193.)

                case, however, appellant's attorney failed to present any affidavit or declaration to the court, or to indicate orally that his request for a continuance was founded upon a need to obtain additional facts concerning the case.  (Compare Nazar v. Rodeffer (1986) 184 Cal.App.3d 546, 555-557, 229 Cal.Rptr. 209.)   Therefore, the granting of a continuance was not mandated by this subdivision and was within the discretion of the court
                

In determining whether the court below abused its discretion, a review of the standards governing requests for continuance of trial dates is instructive. California Rules of Court, rule 375, concerning motions and grounds for continuance of trial dates, provides that a motion for continuance shall be made on written notice to all other parties, "[e]xcept for good cause." "A continuance before or during trial shall not be granted except on an affirmative showing of good cause under the standards recommended in section 9 of the Standards of Judicial Administration." ¹

In County of San Bernardino v. Doria Mining & Engineering Corp. (1977) 72 Cal.App.3d 776, 781, 140 Cal.Rptr. 383, the appellate court applied the predecessor of this rule, California Rules of Court, rule 224, in a case in which the trial court had denied defense counsel's oral motion (made on the date set for trial) for a continuance of trial on the ground that the defendant intended to substitute attorneys. The Court of Appeal held this motion did not meet the requirements of rule 224, observing that the defendant had not submitted a noticed written motion in advance of the date set for trial; the motion had not been made " 'promptly upon the necessity for the continuance being ascertained' " (because the need for the attorney substitution necessitating the continuance had been apparent for more than one week), and counsel had not made an affirmative showing of good cause. ( Id., at p. 783, 140 Cal.Rptr. 383.)

The Court of Appeal further concluded "that there is no policy in this state of indulgence or liberality in favor of parties seeking continuances" (id., at p. 781, 140 Cal.Rptr. 383), commenting that while there is language in several cases (including Larson v. Solbakken (1963) 221 Cal.App.2d 410, 429, 34 Cal.Rptr. 450, cited by appellant) purporting to express a judicial philosophy of liberality in granting continuances, "that philosophy, if it even existed, is now obsolete." (72 Cal.App.3d at p. 780, 140 Cal.Rptr. 383.) More recent appellate decisions have adhered to the foregoing policy expressed in County of San Bernardino v. Doria Mining & Engineering Corp., supra, 72 Cal.App.3d 776, 140 Cal.Rptr. 383. (See Day v. Rosenthal (1985) 170 Cal.App.3d 1125, 1173-1174, 217 Cal.Rptr. 89; In re Marriage of Hoffmeister (1984) 161 Cal.App.3d 1163, 1168-1169, 208 Cal.Rptr. 345.)

Although the present case...