Lifeline Funding v. Johnston CA4/1 (2014) · DecisionDepot
Lifeline Funding v. Johnston CA4/1
California Court of Appeal May 21, 2014 No. D063745Unpublished
Filed 5/21/14 Lifeline Funding v. Johnston CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
LIFELINE FUNDING, LLC, D063745
Plaintiff and Respondent,
v. (Super. Ct. No. 37-2011-000701164- CU-FR-EC) CARTER JOHNSTON et al.,
Defendants and Appellants.
APPEAL from a judgment of the Superior Court of San Diego County, Joel R.
Wohlfeil, Judge. Affirmed.
The Law Office of Richard L. Knight and Richard L. Knight for Defendants and
Appellants.
Jones Day and Edward P. Swan, Jr., for Plaintiff and Respondent.
Plaintiff Lifeline Funding, LLC doing business as Us Claims (Lifeline), a
litigation funding company, provided litigation funding to defendants Deborah
Tumlinson and Douglas Tumlinson (together, the Tumlinsons) at the request of their
attorney, defendant Carter Johnston. That funding was sought for litigation the
Tumlinsons and Johnston represented they filed related to damages their home in
Ramona suffered as a result of a wildfire.
Lifeline thereafter filed a lawsuit against the Tumlinsons and Johnston claiming
that the Tumlinsons, through Johnston, misrepresented that they had settled their case
no absolute right to insist upon a change of counsel at the last moment before the time set
for the commencement of the trial, where such change of counsel requires a continuance
in order that the case may be properly prepared for trial.' "
"We cannot permit the courts to become a sanctuary for chronic procrastination
and irresponsibility on the part of either litigants or their attorneys. The trial judge must
assert his power and 'vigorously insist upon cases being heard and determined with as
great promptness as the exigencies of the case will permit.' " (Doria, supra, 72
Cal.App.3d at pp. 780-781.)
We review the trial court's denial of a continuance under the abuse of discretion
standard. (Lerma v. County of Orange (2004) 120 Cal.App.4th 709, 716.)
B. Analysis
Here, the court properly exercised its discretion in denying Mrs. Tumlinson's
request for a continuance to retain new counsel as a delay tactic. A party waiting until
the date of a hearing to move for a continuance to obtain new counsel has the appearance
of a "delaying tactic." (In re Marriage of Falcone v. Fyke (2008) 164 Cal.App.4th 814,
823.) This is particularly so given that the Tumlisons had earlier opposed Lifeline's
motion to disqualify Johnston. Further, the court acted within its discretion in denying
the motion given that Lifeline's representative DeGeorge had flown from New Jersey to
California, prepared for trial, and secured witnesses in reliance on the trial date.
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The court also did not abuse its discretion when it refused to continue the trial
when Mrs. Tumlinson purportedly fainted and then went to the hospital. A party's illness
"does not ipso facto require" a continuance. (Kalmus v. Kalmus (1951) 103 Cal.App.2d
405, 414, overruled on other grounds in Hudson v. Hudson (1959) 52 Cal.2d 735, 738-
742.) "[T]he court may take into consideration the legal sufficiency of the showing in
support of the motion and the good faith of the moving party." (Ibid.) The court noted
that Mrs. Tumlinson appeared to be a reluctant participant in her trial. As Lifeline
pointed out, Mrs. Tumlinson also used purported health issues as a delay tactic in her
SDG&E litigation, which led to her original attorney terminating his representation.
Further, the Tumlinsons' choice to absent themselves from the trial after the court
denied their request for a continuance does not show the court abused its discretion. The
Tumlinsons were represented by Johnston, who continued to represent them in their
absence. A civil litigant represented by counsel has no constitutional right to be present
at trial. (Province v. Center for Women's Health & Family Birth (1993) 20 Cal.App.4th
1673, 1686, overruled on other grounds in Heller v. Norcal Mutual Ins. Co. (1994) 8
Cal.4th 30, 41.)
Finally, the court agreed to admit Mrs. Tumlinson's deposition testimony as to
matters in which she did not invoke the Fifth Amendment. The court also agreed to
admit Mr. Tumlinson's deposition testimony if he voluntarily chose to be absent from the
trial.
For all the foregoing reasons, we conclude the court did not abuse its discretion in
denying the request for a continuance of trial.
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DISPOSITION
The judgment is affirmed. Costs on appeal to Lifeline.
NARES, J.
WE CONCUR:
McCONNELL, P. J.
IRION, J.
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AI Brief
AI-generated · verify before citing
Holding. The court affirmed the judgment finding defendants liable for fraud, conversion, and breach of contract, holding that substantial evidence supported the trial court's finding of reasonable reliance and that the trial court did not abuse its discretion in denying requests for a continuance or change of counsel.
Issues
Whether there was substantial evidence to support the trial court's finding that the plaintiff reasonably relied on the defendants' fraudulent misrepresentations.
Whether the trial court abused its discretion in denying the defendants' request to change counsel on the first day of trial.
Whether the trial court abused its discretion in refusing to continue the trial due to a party's alleged illness.
Disposition. Affirmed
Quotations verified verbatim against the opinion
“Negligence on the part of the plaintiff in failing to discover the falsity of a statement is no defense when the misrepresentation was intentional rather than negligent.”