Lewis v. Am-Cal Services CA1/1

Filed 6/5/14 Lewis v. Am-Cal Services CA1/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

ISIAH LEWIS, Plaintiff and Appellant, A136266 v. AM-CAL SERVICES, INC., et al., (Solano County Super. Ct. No. FCS036118) Defendants and Respondents.

After his attorney withdrew less than a month prior to the scheduled trial date, plaintiff Isiah Lewis was denied a continuance of the trial to find new counsel. On the date scheduled for trial, Lewis failed to appear, and the trial court entered judgment against him with prejudice under Code of Civil Procedure section 631.8. Because we conclude the trial court abused its discretion in denying the continuance and erred in granting judgment with prejudice, we vacate the judgment and remand for trial. I. BACKGROUND Lewis, acting in pro. per., filed suit against defendants Am-Cal Services, Inc., Glenn Oribello, Timothy Hussey, and Green Island Enterprises on June 30, 2010, alleging improprieties in connection with a real estate foreclosure. By June 2011, Lewis was represented by counsel. On July 2, 2012, however, this attorney withdrew, and Lewis substituted as his own attorney. At the time, trial was scheduled for July 24, 2012. On July 12, 2012, the parties appeared for a hearing on defendants’ motion to bifurcate the trial. Lewis explained to the court that his attorney had “resigned” and asked for time to find a new attorney. Lewis told the court the attorneys he had contacted

about assuming the representation told him they would not appear unless the trial date was vacated. The court responded, “I don’t see that happening, quite frankly,” noting the trial date had been set in February and commenting, “it doesn’t look like, to me, sir, you’re going to be ready to proceed to trial.” Defense counsel urged the court to leave the trial date intact. The court granted the motion to bifurcate and indicated the equitable portion of the case would be called for trial as scheduled, on July 20, 2012. On July 20, Lewis apparently was seen at the courthouse by a court bailiff, but he was not present in court when the case was called for trial. The court confirmed the trial date, noting, “presumably [Lewis is] ready, if he was here earlier.” The day before trial, Lewis filed a notice of appeal of the ruling on the motion to bifurcate. Lewis did not appear for trial on July 24. John Dioguardi, counsel for defendants Hussey and Green Island Enterprises, opened the hearing by arguing the trial court retained jurisdiction, notwithstanding the notice of appeal, because the ruling on the motion was not an appealable order. The trial court agreed. Dioguardi told the court he had received no communication from Lewis to explain his absence. He then moved for entry of judgment under Code of Civil Procedure section 631.8. Following an adjournment to allow the trial court to review defendants’ trial brief, Dioguardi asked for leave to make “a very brief opening statement on behalf of the defendants, for prejudice to attach under [Code of Civil Procedure, section] 581.” Dioguardi explained the present dispute followed an earlier lawsuit, as a result of which Lewis agreed to make payments on a promissory note secured by a deed of trust. Lewis complied for a few months, but then he stopped making payments, and defendants foreclosed on the real property securing the deed of trust. Dioguardi said he was prepared to prove the foreclosure sale, the foundation of Lewis’s present claims, was properly executed. He then renewed his request for judgment under section 631.8. Counsel for defendants Oribello and Am-Cal Services, Inc. argued Civil Coode section 2924 established a rebuttable presumption that a trustee’s sale had been regularly and properly conducted. Because Lewis had presented no evidence to rebut this presumption, counsel argued, his clients were entitled to judgment under Code of Civil