Trial Court Abused Its Discretion In Failing To Grant Continuance After Appellant’s Attorney Was Arrested On Day Of Trial

In an unpublished opinion decided on June 25, 2010, the California Court of Appeal held that the trial court abused its discretion in refusing to grant a trial continuance after appellant’s attorney was arrested on the day of trial.

In early 2007, appellant Tu My Tong retained respondent, the law firm of Casello & Lincoln, to defend her in certain civil matters. Later that year, Casello & Lincoln sued Tong for $82,000 in unpaid attorney’s fees. Tong counter-sued, claiming legal malpractice.

In April 2008, Tong was without legal representation. After the superior court denied an initial handwritten request for a continuance on July 8, Tong signed a retainer agreement with an attorney, Jacqueline Staten, on July 11. Tong gave Staten her file related to Casello & Linclon’s previous representation of Tong.

Tong filed another handwritten request for continuance on July 17, with trial scheduled four days later. Staten was not present at the hearing and the request was denied.

On July 21, the day trial was set to begin, Staten had not communicated with Tong in ten days and still retained possession of Tong’s file. The court adjourned to July 24.

On July 24, the court learned that Staten had been arrested for stealing from a client. The court nevertheless determined that Tong failed to show good cause for a continuance and trial proceeded. The jury awarded Casello & Lincoln $88,000.

The court of appeal held that Staten’s failure to communicate with Tong, Tong’s lack of access to her file, and Staten’s arrest all demonstrated good cause for a continuance. The appellate court acknowledged the general principle that when the demands of justice conflict with the desire for judicial efficiency, the court must err on the side of justice.

In addition, Casello & Lincoln failed to demonstrate any prejudice by the proposed trial continuance. There had been no previous continuances, and the only witnesses who would testify for Casello & Lincoln were the named partners of the law firm. Based on this analysis, the court of appeal held that the trial court abused its discretion in declining to grant Tong a continuance.

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