Filed 10/18/17 Gill v. Bank of America CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

In this action to set aside a foreclosure, plaintiff and appellant Patricia Gill (Gill) appeals from the entry of judgment in favor of defendant Bank of America, N.A. (Bank) after the trial court granted the Bank’s motion for summary judgment. We affirm.

BACKGROUND[1]

By second amended complaint filed in November 2013, Gill alleged a single cause of action for promissory estoppel based on the allegation that the Bank had promised to postpone the trustee’s sale of property owned by Gill.

On April 9, 2015, Gill’s attorney filed a motion to withdraw as counsel. The trial court granted the motion on May 4, 2015, and Gill proceeded in pro per.

On July 14, 2015, the Bank filed a motion for summary judgment, which was set for hearing on September 29, 2015. Gill failed to file a written opposition with the court. Instead, she sent to the Bank’s counsel a set of documents that purported to be an objection; she also sent an unverified declaration. The Bank filed a reply brief that attached Gill’s objection and declaration for the trial court’s review. The Bank argued that even if Gill had properly filed her objection in the trial court, she did not and could not raise a triable issue of fact in light of the fact that she had failed to meet the tender requirement.

In its tentative ruling, the trial court deemed Gill’s entire lawsuit to be barred by her failure to tender the outstanding debt. The court further ruled that, in light of Gill’s admission that the Bank made no oral or written promises to postpone the foreclosure sale, her claim for promissory estoppel had no merit.

At the start of the September 29, 2015 summary judgment hearing, the trial court advised Gill that she failed to file written opposition with the court. The trial court further stated that, even if it were to consider Gill’s opposition, it was insufficient because it “contained no evidence.” Nevertheless, the court advised Gill of her opportunity to raise any opposing arguments. Gill notified the court that her husband had passed away on July 9th and that she was in the process of interviewing two attorneys. She indicated she would retain counsel and file an appeal. She also requested “a continuance and an opportunity to get an attorney.” Counsel for the Bank responded that Gill’s attorney had withdrawn in May and that Gill had several months to retain new counsel, but failed to do so. Counsel added that, even if the court were inclined to grant a continuance, it would not save Gill’s claims because they were barred by the tender requirement and by her admissions that the Bank made no promises upon which she could have relied.

The trial court found there was no good cause for a continuance and adopted its tentative ruling as its final order.

DISCUSSION

The sole issued raised by Gill is whether the trial court erred in denying her request for a continuance. Gill claims the trial court abused its discretion because she showed good cause and that this error violated her right to counsel. She further claims this due process violation requires reversal of the judgment in favor of the Bank. We disagree.

The decision to grant or deny a continuance involving the hearing date of a motion for summary judgment lies within the sound discretion of the court. (Mahoney v. Southland Mental Health Associates Medical Group (1990) 223 Cal.App.3d 167, 171-172 (Mahoney); accord Scott v. CIBA Vision Corp. (1995) 38 Cal.App.4th 307, 314.)

“ ‘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.)

There is no right to a continuance as a matter of law. (Fisher v.. Larsen (1982) 138 Cal.App.3d 627, 648; accord Roth v. Rhodes (1994) 25 Cal.App.4th 530, 547.) The party seeking a continuance must demonstrate good cause. (Mahoney, supra, 223 Cal.App.3d at p. 172; Cal. Rules of Court, rule 3.1332(c) [trial court “may grant a continuance only on an affirmative showing of good cause requiring the continuance”].) One factor bearing on the decision to grant or deny a motion for a continuance is whether the motion “could have been made earlier.” (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2017) ¶ 10:208.1, p. 10–90.)

“The unavailability of trial counsel because of death, illness, or other excusable circumstances” may constitute good cause. (Cal. Rules of Court, rule 3.1332(c)(3).) In Mahoney, the trial court did not abuse its discretion in denying a continuance where “a recent illness had partially incapacitated counsel.” (Mahoney, supra, 223 Cal.App.3d at pp. 169, 172 [flu and throat infection].) Mahoney explained the trial court reasonably could conclude no good cause was shown where counsel had decided weeks earlier to oppose the summary judgment motion, but he took no steps to do so in the interim before he became sick a week and a half before the hearing, and he did not request a continuance until the hearing date. (Id. at p. 172.)

Here, we conclude the court did not abuse its discretion in denying Gill’s request for a continuance. Although unrepresented by counsel for more than four months, Gill did not request a continuance to obtain new counsel until the day of the hearing on the motion for summary judgment. Instead, she chose to appear in propria persona and make an oral request for a continuance without submitting a written declaration or providing prior notice. We are not unsympathetic to Gill’s plight in being recently widowed and being left with “a mountain of documentation” to sift through on her own. However, a party representing herself is to be treated like any other party and is entitled to the same, but no greater, consideration than other litigants and attorneys. (See Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1247; Leslie v. Board of Medical Quality Assurance (1991) 234 Cal.App.3d 117, 121 [self-represented parties “held to same ‘restrictive procedural rules as an attorney’ ”].) Gill has not demonstrated good cause for a continuance or otherwise made a good faith showing that a continuance was needed to obtain facts essential to oppose the motion. (See Code Civ. Proc., § 437c, subd. (h); Cal. Rules of Court, rule 3.1332(c).)

Similarly, Gill has shown no basis for us to conclude that due process requires reversal of the judgment in favor of the Bank. Gill argues that, in denying her request for a continuance, the trial court violated her due process right to appear by counsel. This argument, however, is misplaced. “As a general rule, ‘. . . there is no due process right to counsel in civil cases. [Citation.] Generally speaking, the right to counsel has been recognized to exist only where the litigant may lose his physical liberty if he loses the litigation. [Citations.]’ [Citation.]” (People v. $30,000 United States Currency (1995) 35 Cal.App.4th 936, 942.)

There is no indication that Gill’s physical liberty was in jeopardy in this civil case, and therefore, the exception to the general rule does not apply. As there was no constitutional right to counsel in this case, the failure to grant a continuance to retain new counsel cannot be the basis for reversal on due process grounds.

DISPOSITION

The judgment is affirmed.

_________________________

KENNEDY, J.*

We concur:

_________________________

RIVERA, ACTING P. J.

_________________________

STREETER, J.

*Judge of the Superior Court of California, County of Contra Costa, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.

A147013 Gill v. Bank of America