Hernandez v. Superior Court

Opinion

TROTTER, P. J.

Trial of Armando Hernandez’ action against H. Mark Fatemi was taken off calendar and removed from the civil active list because Hernandez’ counsel, Margaret Maas, was not present in court at the time the matter was ready for assignment. Indeed, Ms. Maas could not be in attendance because she was present in this court for purposes of oral argument in another case. While we are mindful of the responsibility of trial counsel to be prepared to proceed when a case is ultimately assigned to a courtroom, it is clear the court’s action under these circumstances was not warranted.

The at issue memorandum anticipated a nonjury trial lasting no more than a day. Trial was originally scheduled for February 4, 1985, and after trailing for four days was continued to April 22, 1985. It was again continued to May 20, 1985, due to the death of the wife of one of petitioner’s key witnesses. On the continued date, the parties were informed the matter could be sent out for immediate trial if they stipulated to the appointment of a judge pro tern. Petitioner agreed but real party refused, and the matter was trailed to the next day.

On May 21, 1985, prior to the 9 a.m. department 1 calendar call, Ms. Maas informed the clerk that at 9:30 a.m. she was required to appear at the Court of Appeal to orally argue a case for which she was attorney of record. Since she was a sole practitioner, no one was available to take her place in

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department 1 while she was engaged in the appellate court. She was informed the presiding judge anticipated sending the matter out for trial that morning, and she told the clerk oral argument would be concluded by approximately 10:30 a.m. The clerk did not advise her the judge might take the trial off calendar if she were not present; thus, presuming there would be no problem, she proceeded to this court.

At 11:15 a.m., after oral argument was concluded, Ms. Maas appeared in department 1. She was advised that at 10:45 a.m., due to her nonappearance, the matter had been taken off calendar and removed from the civil active list. Her request to personally speak with the presiding judge was refused, and subsequent efforts to resolve the problem were likewise unsuccessful.