We reverse, concluding the trial court abused its discretion in denying Denton's request to continue the hearing on the summary judgment motion and in denying his motion for new trial.
In 2003, Denton began his employment with the City and County of San Francisco (City). He began in the Departmеnt of Emergency Management, and in 2009 moved to the San Francisco Public Utilities Commission. In September 2013, while still employed with the City, Denton filed a complaint against defendants.
In February 2014, attorney Clarice Letizia substituted in on behalf of Denton.
In March 2014, the case was set for jury trial in March 2015.
In November 2014, Letizia filed a first amended complaint, the operative pleading here, alleging eight causes of action: workplace retaliation ( Lab. Code, § 1102.5 ); disability discrimination (disparate treatment); disability discrimination (failure to accommodate); disability discrimination (failure to engage in the interactive process); defamation; violation of the Confidentiаlity of Medical Information Act ( Civ. Code, § 56 et seq. ); hostile work environment harassment; and failure to prevent harassment, discrimination, or retaliation. The only causes of action alleged against Doyle were defamation and hostile work environment harassment.
Denton served various discovery, responses to which he claimed were inadequate, necessitating several motions. In February 2015, the trial date was continued to September 21, 2015, and then again, by stipulation, to October 26.
Because discovery issues remained, hearing on the motion was continued several times, the last time to be heard on September 25. The effect of this was that Denton's opposition to the motion for summary judgment would be due September 11. Whether attorney Letizia was working on such opposition is not apparent from the record. What is apparent is that the parties agreed to attempt to settle. And did. Specifically:
On Friday, September 4, a mediation was hеld with Michael Young of Judicate West. No settlement was reached by the end of the day, but the parties agreed to continue negotiating by telephone with the mediator the next week. As defendants' own brief describes it: "The parties continued to negotiate throughout the week but had not reached a resolution by Thursday, September 10, 2014-the day before Denton's opposition to Defendants' motion for summary judgment was due. Defendants agreed to extend the time for Denton to file his opposition to Monday, September 14, 2015, to allow for additional time to reach settlement."
Defendants' attorney Lisa Berkowitz sent an e-mail confirming this, "in the hope that the parties could reach a resolution before that time." Or, as Denton's attorney Letizia confirmed in her e-mail on the morning of September 10: "This will confirm that you will not object to my filing the Opposition to Your Motion for Summary Judgment on Monday, 9-14-15, instead of tomorrow 9-11-15, so that we can continue our efforts to settle the case today."
Very early on the morning of September 16, Denton discharged attorney Letizia. As Denton described it, "I discharged my attorney, Clarice Letizia, for refusing to withdraw the 998 offers that were still pending in addition to the conditional settlement, provided her with a signed and dated substitution
Later that day, Denton signed a notice of substitution of attorneys for Letizia to sign and file with the trial court, substituting himself in place of Letizia. As will be seen, Letizia did not file the substitution until September 21.
At 7:49 a.m. on September 16, less than hour after discharging Letizia, Denton sent an e-mail to defendants' attorney Berkowitz. It read in its entirety as follows:
"This email is to inform you that Clarice Letizia no longer represents me in any legal matters effective 6:51 am this morning, and has been instructed not to have any further contact with you or your clients. If Ms. Letizia has contacted you or your clients since 6:51 a.m., or makes any future contacts, please let me know.
"Additionally, Ms. Letizia informs me she made two 998 settlement offers, one to CCSF and one to Mr. Doyle. So that no confusion about their status remains I'm taking this opportunity to state that any and all CCP 998 settlements [sic ] offers to date are withdrawn if not already withdrawn.
"It is my understanding Ms. Letizia has sent at least one other settlement offer and I only just learned she has filed a conditional Notice of Settlement form CM-200. I will contact you later about these developments."
At 11:12 a.m. the next day, September 17, Denton sent another e-mail to Berkowitz. It read as follows: "Dear Ms. Berkowitz, [¶] Because of recent communications I received from Ms. Letizia, it would appear there will be a delay in filing and serving the form CM-050 notification of attorney substitution. So I just wanted to take this opportunity to reaffirm that I have terminated Ms. Letizia's representation as of 6:51 a.m. on 09/16/05; that I am the Plaintiff in pro per for my case; and that any communications from Ms. Letizia you have received, or may receive involving my case are to be ignored. If there have been any communications from her on my matter, please let me know."
Eighteen minutes later, Berkowitz e-mailed back:
"We (meaning the City defendants and you) had a settlement agreement. My understanding from the mediator is that you agreed to that settlement.
"If so, you or your lawyer need to immediately rescind the Notice of Settlement with thе Court. Please be advised that I will be requesting from the Court that my summary judgment be heard as scheduled
"I am cc-ing Ms. Letizia until I get a substitution form from you."
Denton responded within an hour: "Ms. Letizia has not as yet been provided me [sic ] with a copy of the offer to settle you refer to. It would expedite matters if you could provide me with a copy (email would be fine)."
Berkowitz replied immediately, the text of her e-mail reading as follows: "The proposed settlement amount is the agreed upon amount reached with the mediator's help via telephone to both lawyers in the days following the mediation. It is not in writing, except as confirmed by the mediator by email to the lawyers on 9/11/15. It is $250,000, inclusive of attorneys fees, total, subject to approval by the SF Board of Supervisors and the PUC Commission in exchange for a full release of all claims, as set forth in the City's standard settlement agreement. I was in the process of finalizing the settlement and release to send to your attorney for her review when I got your email this week. It is my understanding that you approved and agreed to this settlement."
At 10:34 a.m. on Friday, September 18, Berkowitz e-mailed notice to Letizia and Denton that defendants would appear ex parte on the following Monday, a notice entitled "Application for an Order Vacating Notice of Settlement Filed by Plaintiff." The ex parte notice made no mention of any other relief that would be sought.
In response to Berkowitz's reference to Denton's purported "rejection" of the settlement agreement, Denton twice corrected Berkowitz in writing. The first was mid-Friday, September 18, a few hours after Berkowitz sent the ex parte notice, when Denton replied: "I have communicated nothing to you in regards to an acceptance or rejection of the proposed settlement that is the subject of the Notice оf Settlement. In my email to you on 9/18/15 7:49 a.m. I reaffirmed/restated my withdrawal of any CCP 998 offers and those offers only which is entirely unrelated to the Notice of Settlement.
The second was on Sunday, September 20, when he again told Berkowitz via e-mail that "I have not rejected the settlement agreement."
"2. ... [O]n September 11, 2015, a settlement was reached. It was my understanding that Plaintiff was in agreement to this settlement. Indeed, the mediator confirmed that all parties were in agreement to the settlement before confirming the settlement in an email to the [sic ] both Plaintiff's counsel and myself.
"3. Plaintiff's attorney, Clarice Letizia, аpparently immediately filed a Notice of (Conditional) Settlement of Entire Case with the Court on September 11, 2015-before the settlement and release had been drafted or signed by the parties. (See Exh. A attached.)
"4. On September 16, 2015, I received an email from Plaintiff in which he informed me that he had fired his lawyer, that she no longer represents him, and that all settlement offers are withdrawn. (See a true and correct copy of that email, attached as Exh. B.) [
"6. I then requested in a telephone call to Ms. Letizia and an email to both Ms. Letizia and Plaintiff that they rescind the Notice of Settlement. (See a true and correct copy of that email attached as Exh. C.) As of September 18, 2015, Plaintiff has not rescinded the Notice of Settlement.
"7. Plaintiff emailed me on September 17, 2015, informing me that there would be a delay in filing the substitution of attorney form and reiterating that he is pursuing this case in pro per. (A true and correct copy of that email is attached as Exh. C.)"
So, according to attorney Berkowitz, Letizia informed her on September 16, after Letizia had been discharged and instructed by Denton not to communicate with other parties-that Denton was no longer аgreeable to the settlement. As shown above, Denton told Berkowitz he was. Whatever, that was the state of attorney Berkowitz's knowledge as she proceeded to the ex parte hearing on Monday morning.
Denton, who did not know what was in the notice of the ex parte hearing, met with Berkowitz before the hearing. As Denton describes it, "[s]he
At the time set for hearing, the clerk recorded Denton's and Berkowitz's appearances and, as is typical, took the ex parte papers to the judge's chambеrs. This was the first time Denton received a copy of the papers.
The court granted the application without taking the bench, its order stating that it was doing so "specifically because Plaintiff Richard A. Denton has not agreed to a settlement." The order vacated the notice of conditional settlement and stated that the September 25 hearing date for the summary judgment motion and the October 26 trial date "remain on calendar."
After the court vacated the notice of settlement, Denton attempted to negotiate a new agreement with the City, and on September 24, the day before the summary judgment hearing, filed a new notice of conditional settlement. The register of actions shows the court treated this notice as void under the order of September 21.
The next development was the hearing on September 25, the scheduled date for the summary judgment motion. Denton appeared in propria persona, without any opposition having been filed. The hearing was brief indeed, resulting in a transcript of sоme four pages, a hearing that began as follows:
"THE CLERK: Calling line No. 4, 534508, Richard Denton vs. the City and County of San Francisco.
"MS. BERKOWITZ: Good morning, your Honor. Lisa Berkowitz for the City
"MR. DENTON: Richard Denton, Plaintiff pro per.
"THE COURT: Mr. Denton, I got a notice of contest from you, so-
"MR. DENTON: Last Monday.
"Now, what can I do for you?"
And it was downhill for Denton from there. Denton requested a continuance: "I would like to contest that motion from last Monday [the ex parte ruling] and ask to have the motion for summary judgment re-noticed." The court denied it, and confirmed it was granting the summary judgment motion: "Mr. Denton, there's absolutely no basis on which I can change my ruling. I'm not going to continue anything. You had your opportunity. You didn't take it."
Dеnton persisted, arguing that he had too little time to prepare and was actively seeking new counsel. He pointed out that defendants' counsel had conceded in the ex parte application that a settlement had been reached. The hearing ended with Denton's last pitch-and the court's terse reaction. This was it:
"MR. DENTON: Your Honor, my attorney put in the substitution, finalized the substitution at 5:30 a.m. on Monday of the ex parte motion, so I had from that time until when we walked in the door to prepare.
"I did come in. I'm unfamiliar with the procedures. I had no desire or intention to continue as pro per. I'm actively seeking and will shortly secure a new attornеy. We had a settlement agreement that in her filing she acknowledges that we had a settlement agreement. As soon as opposing counsel saw that I let my attorney go, she filed a motion to take advantage of the fact that I was without representation.
"Mediation continues. We're very close. We have a settlement. We have exactly the same terms that have been agreed on for the last two weeks. Opposing counsel simply denies them, and I-it is my intent to settle this case, and I would at least like some additional time to pursue that.
"THE COURT: There's no case to settle, sir. I'm going to sign a judgment."
That same day, the court signed and filed the order granting thе motion for summary judgment. The order reads in its entirety as follows: "This matter came on for hearing on September 24, 2015 .... Deputy City Attorney Lisa B. Berkowitz appeared on behalf of defendants, the City and County of San Francisco ('City') and John Doyle. Plaintiff Richard A. Denton appeared
Judgment was entered on October 22.
On November 18, still representing himself, Denton filed a motion for new trial. It argued four grounds: (1) "irregularity in the proceedings," because both Berkowitz and Letizia had engaged in attorney misconduct that resulted in the trial court granting the ex parte application and deprived him of a fair opportunity to oрpose the summary judgment motion
Defendants' primary argument in opposition to the new trial focused on Denton's failure to file opposition to the summary judgment motion, arguing that he failed to file written opposition, a declaration, or a request for a continuance "even though it was undisputed that the parties did not have a settlement agreement at the time his opposition was due." Defendants also contended that Berkowitz did not engage in misconduct because there was "no evidence" she was not "acting truthfully in litigating this case" at all times; that Denton's communications with Berkowitz regarding the settlement were ambiguous; and that he attempted to negotiate a new settlement on September 22. Defendants also faulted Denton for trying to negotiate a settlement instead of submitting a declaration seeking a continuance. And they contended Denton did not suffer surprise because he failed to demonstrate diligence in opposing the summary judgment motion, and that the triаl court had discretion to grant summary judgment because Denton failed to file opposition.
Denton filed a reply, and the new trial motion came on for hearing on December 28. This hearing, too, was brief, all of eight pages. It began with Denton asking to confirm his understanding of the tentative ruling, that "It
The court dismissed Denton's complaint of Letizia's misconduct, saying at one point, "You may have some complaint against your former attorney, but that has nothing to do with what's in front of me"; and at another, "I told you what your remedy is there. It's between you and Ms. Letizia." And, apparently agreeing with defendants' counsel Berkowitz that no settlement had been reached, the court stated, "She [Berkowitz] declares that there was a withdrawal of the 998. You're withdrawing it. Settlement wаs rejected. I don't know what else to say." The new trial motion was denied.
Denton appealed from that denial, and from the summary judgment.
DISCUSSION
Denton, now represented by counsel, has filed a comprehensive brief, well written and well researched,
We conclude the second and third arguments have merit, and thus reverse, without the need to discuss the first argument.
The Trial Cоurt Abused Its Discretion in Refusing to Continue the Summary Judgment Hearing and Denying the Motion for New Trial
As discussed, following the court's ruling against him on the ex parte motion, Denton appeared on the date scheduled for the summary judgment
When, as here, a request for a continuance of a summary judgment motion is made on grounds other than the mandatory basis of Code of Civil Procedure, section 437c, subdivision (h), the court must determine whether the party requesting the continuance has established good cause. ( Hamilton v. Orange County Sheriff's Dept. (2017)
In People v. Jacobs (2007)
"Various definitions and principles describing the abuse of discretion standard of review have been stated and repeated in numerous cases, such as in Blank v. Kirwan (1985)
Wе went on to describe other possible descriptions, but noting that "The scope of discretion always resides in the particular law being applied, i.e., in the 'legal principles that govern the subject of [the] discretionary action ....' " ( Jacobs, supra,
In light of what occurred in the brief hearing, and the short shrift given Denton by the trial court, it might be said that the trial court acted arbitrarily. Or capriciously. That, of course, would end the matter.
But even if those adjectives do not apply, Denton should have been granted the continuance in the circumstances he found himself, circumstances that were not his fault. (See Lerma, supra,
When considering a continuance of a summary judgment hearing, " 'a review of the standards governing requests for continuance of trial dates is instructive.' " ( Lerma, supra,
We see no basis supporting the trial court's ruling. To the extent the court implied that Denton was not diligent-"[t]here was one extension аfter another"-the implication is not supported by the record. Indeed, defendants' counsel acknowledged as much at the hearing, asserting that Denton had been
Defendants' arguments are unpersuasive. They first argue that "Because No Settlement Was Ever Reached, Denton
Defendants also argue that the trial court did not abuse its discretion. They point essentially to the fact that Denton did not file a written request for a continuance, arguing as follows: "Here, by contrast, Denton-a law school graduate who submitted declarations in support of numerous motions that his lawyer filed throughout the case-made no effort to file a written request for a continuance at any point in the week leading up to the hearing. In such circumstances, the trial court did not abuse its discretion in denying Denton's last minute oral request for a fourth continuance of the summary judgment deadline." (Fn. omitted.)
To begin with, we are troubled by defendants' argument of technical noncompliance with the rules, particularly in light of their position that their own noncompliance with the ex parte notice rules-noncompliance they implicitly acknowledge-be overlooked.
But passing over that, the injustice created by the trial court's denial of the continuance made any technical procedural noncompliance inconsequential. Hamilton v. Orange County Sheriff's Dept., supra,
Likewise here. Defendants obtained a judgment on a basis other than the merits and in the absence of any opposition, accomplished by making an ex parte application unsupported by evidence of irreparable harm-and which Denton had no meaningful opportunity to oppose. And it was all against the background that Denton not only never advised defendants he was backing out of the settlement, but affirmatively stated that he had "not rejected the settlement agreement." That was the setting in which the $250,000 settlement was lost.
Superimposed on all this was what the trial court did-granting summary judgment for lack of opposition-was the equivalent of a terminating sanction. Such cannot be upheld here, just as it was not in
Almost all the summary judgment-related continuance cases deal with continuances to make discovery, continuances provided for by the statute itself. Even so, the principles in those cases are relevant, especially in those cases where the party moving for a continuance had not filed the required declaration or the declaration did
In sum, the trial court abused its discretion when it denied Denton's request for continuance of the summary judgment hearing. Likewise, when it denied his motion for new trial.
We review rulings on new trial motions for abuse of discretion. ( Aguilar v. Atlantic Richfield Co. (2001)
Denial of new trial was probably wrong as to Denton's claim of legal error as well, and would not withstand scrutiny under the summary judgment principles. That is, even without opposition, a court may not grant a motion for summary judgment unless it first determines that defendants have met their initial burden of proof. ( Thatcher v. Lucky Stores, Inc. (2000)
Jacobs, supra,
DISPOSITION
The order denying the motion for new trial is reversed, as is the summary judgment. The matter is remanded for further proceedings consistent with this opinion. Denton shall recover his costs on appeal.
We concur:
Miller, J.
Notes
The complaint also named Permanente Medical Group, Inc., which was dismissed, apparently based on a good faith settlement.
Denton is an attorney by education.
Exhibit B was Denton's September 16 e-mail quoted above. That e-mail does not say "all settlement offers are withdrawn." To the contrary, it states that the 998 offers are "withdrawn," and then refers to "one other settlement offer," about which he "will contact" Berkowitz.
Although Letizia had apparently been served with a copy of the ex parte application on September 18, she did not forward a copy of the application to Denton, nor did she file any opposition to the application on Denton's behalf. Rather, on September 21, just hours before the ex parte hearing, she filed the substitution of attorney.
Denton contended that Berkowitz breached her duty of candor to the court by submitting an ex parte application that stated Denton was withdrawing from the settlement, notwithstanding his two written notifications since the ex parte noticе that he was not. As to Letizia, Denton contended she had engaged in attorney misconduct by refusing to withdraw promptly after her discharge, miscommunicating Denton's position on the settlement, and then withdrawing just hours before the ex parte application was heard, without opposing it or even providing Denton a copy of the application, thus breaching her duty under Rules of Professional Conduct, rule 3-700(A)(2).
Defendants have also filed a comprehensive brief, responding to each of Denton's arguments. Indeed, defendants then go on for 23 additional pages in support of their position that they set forth a prima facie showing supporting their summary judgment on a cause-of-action by cause-of-action basis. Curiously, defendants' argument does not address the claims in order but rather in this order: sixth, fifth, seventh, fourth, third, second, first, and eighth.