Sira Cruz, V. Gilber Fransico Rojo ( 2022 )


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  •        IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
    SIRA CRUZ, an Individual; PLAZA            No. 82404-0-I
    LATINA RC, INC., a Washington
    Corporation; and MGD PAINTING              DIVISION ONE
    CORPORATION, a Washington
    Corporation,                               UNPUBLISHED OPINION
    Respondents,
    v.
    GILBER FRANCISCO ROJO, an
    individual; PLAZA LATINA GR
    CORPORATION, a Washington
    Corporation; ALDRIN LUCIO
    ROJO, an individual; NORTH
    SEATTLE DRYWALL
    CORPORATION, a Washington
    Corporation; and DOES I-IV,
    unknown parties,
    Appellants.
    SMITH, J. — Gilber Francisco Rojo, Plaza Latina GR Corporation, Aldrin
    Lucio Rojo, and North Seattle Drywall Corporation (collectively Rojo) appeal the
    denial of their motion for a continuance before a summary judgment hearing.
    Because the trial court did not abuse its discretion by denying the motion after
    two years of Rojo’s non-participation in the action, we affirm.
    FACTS
    In May 2018, Sira Cruz, Plaza Latina RC Incorporated, and MGD Painting
    Corporation (collectively Cruz) sued Gilber Francisco Rojo and Plaza Latina GR
    Citations and pin cites are based on the Westlaw online version of the cited material.
    No. 82404-0-I/2
    Corporation, alleging that Rojo had breached his fiduciary duties and duty of
    care, had tortiously interfered with Plaza Latina RC’s business expectancy, and
    had engaged in civil conspiracy and unfair competition. In July, Cruz amended
    the complaint, naming additional defendants; adding more claims for tortious
    interference, breach of contract, defamation, and conversion; and requesting
    declaratory relief and damages. In August 2018, Rojo filed an answer,
    affirmative defenses, and counterclaims.
    In January 2019, the court granted Rojo’s motion to continue trial. In
    June, Rojo’s attorney withdrew as counsel. In August, the court granted Cruz’s
    motion to compel discovery responses from Rojo, finding that Rojo had not
    responded to any of Cruz’s interrogatories or requests for production from April of
    that year. On October 16, 2019, Cruz moved to continue trial because Rojo had
    still not responded to any of Cruz’s discovery requests, and the court granted the
    motion. In May 2020, the court continued trial to October 2020 due to restrictions
    related to COVID-19. 1
    By September 24, 2020, Rojo had still not responded in any way to the
    April 2019 interrogatories and requests for production. The court found that
    Rojo’s violation was willful and caused substantial prejudice to Cruz, and
    accordingly sanctioned Rojo by striking his answer, affirmative defenses, and
    counterclaim. In October 2020, Rojo failed to appear for a bench trial, and at
    1  COVID-19 is the World Health Organization’s official name for
    “coronavirus disease 2019,” a severe, highly contagious respiratory illness that
    quickly spread throughout the world after being discovered in December 2019.
    2
    No. 82404-0-I/3
    Cruz’s request, the court granted a continuance to January 25, 2021. On
    December 2, 2020, Cruz moved for summary judgment.
    At the hearing on January 25, 2021, a new attorney, Matthew Heyert, filed
    a notice of limited appearance for Rojo solely to represent him in a motion to
    continue trial. Through Heyert, Rojo filed a motion to continue trial to allow time
    to retain new counsel, explaining the delay primarily by reference to Rojo’s
    depression and anxiety in the wake of the COVID-19 pandemic. The court
    granted a short continuance to February 8 to obtain an interpreter, and set a due
    date of February 2 for Rojo’s response to the summary judgment motion. Rojo
    did not file a response.
    On February 8, Rojo appeared at the summary judgment hearing with
    Heyert and a new attorney, William Frick, whom Rojo had just retained to
    represent him in the case starting after the continuance hearing. Heyert renewed
    the request for a 60-day continuance. The court denied the motion, finding that
    Rojo had failed to establish good cause and that it would be prejudicial to Cruz to
    continue the hearing any longer. Frick withdrew as counsel because he was not
    yet prepared to argue the summary judgment motion. The parties then went
    forward with the summary judgment hearing, with Rojo representing himself. The
    court granted summary judgment to Cruz, and Rojo appeals.
    ANALYSIS
    Rojo contends that the court abused its discretion by denying his motion to
    continue the hearing. We disagree.
    A court may continue a trial for good cause, and may continue a summary
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    No. 82404-0-I/4
    judgment hearing to permit a party to obtain essential affidavits or other
    evidence. CR 40(d), 56(f). 2 The court may consider several factors in deciding a
    motion for a continuance, including
    the necessity of reasonably prompt disposition of the litigation; the
    needs of the moving party; the possible prejudice to the adverse
    party; the prior history of the litigation, including prior continuances
    granted the moving party; any conditions imposed in the
    continuances previously granted; and any other matters that have a
    material bearing upon the exercise of the discretion vested in the
    court.
    Balandzich v. Demeroto, 
    10 Wn. App. 718
    , 720, 
    519 P.2d 994
     (1974). The
    court’s primary consideration in deciding the motion should be justice. Coggle v.
    Snow, 
    56 Wn. App. 499
    , 508, 
    784 P.2d 554
     (1990). Allowing new counsel time
    to prepare can be an appropriate reason for a continuance, especially where the
    party would otherwise “be penalized for the . . . dilatory conduct” of their first
    attorney. Coggle, 
    56 Wn. App. at 508
    . “In general, a trial court’s decision
    granting or denying a continuance of trial lies with the sound discretion of the
    court, and will not be disturbed on appeal absent a showing that the trial court
    failed to exercise its discretion or manifestly abused its discretion.” City of
    Tacoma v. Bishop, 
    82 Wn. App. 850
    , 861, 
    920 P.2d 214
     (1996). The court
    abuses its discretion if its discretion is “exercised on untenable grounds or for
    untenable reasons, considering the purposes of the trial court’s discretion.”
    Coggle, 
    56 Wn. App. at 507
    .
    2  Furthermore, under the King County Superior Court Local Civil Rules
    (KCLCR), a continuance should not be granted after the final date to change the
    trial date “except under extraordinary circumstances where there is no alternative
    means of preventing a substantial injustice.” KCLCR 40(e)(2).
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    No. 82404-0-I/5
    Here, the court appropriately weighed the facts in denying Rojo’s motion
    for a continuance. The court considered the need to resolve a case that had
    been going on for two and a half years and found prejudice to Cruz, who had to
    “keep coming back, keep paying her attorneys,” and had an expert ready to
    testify. The court also noted that there was not a clear showing that more time
    would be particularly useful to Rojo, given that his answer had been stricken and
    he had missed the deadline to identify any witnesses or exhibits. 3 The court
    noted that when the case was continued two weeks prior, “we were pretty
    clear . . . that this was likely going to proceed today.” The court appropriately
    considered the circumstances of the COVID-19 pandemic, noting that it
    “appreciate[d] that we have been living through extraordinary times,” but
    ultimately found that the pandemic did not justify the ongoing dramatic lack of
    participation on Rojo’s part, especially given that Rojo’s first attorney withdrew in
    2019, “long before COVID,” and that Rojo “didn’t get a lawyer, just stopped
    participating altogether for over a year.” The court appropriately weighed the
    relevant factors and considered the interests of justice, not just for Rojo but also
    3Rojo submitted no affidavits discussing the need to acquire evidence
    essential to his defense, as provided for in CR 56(f), presumably because he had
    missed the discovery cutoff anyway.
    5
    No. 82404-0-I/6
    for Cruz, and ultimately found that there was no good cause for a continuance.
    The court did not abuse its discretion by denying the motion.
    We affirm.
    WE CONCUR:
    6
    

Document Info

Docket Number: 82404-0

Filed Date: 1/31/2022

Precedential Status: Non-Precedential

Modified Date: 1/31/2022