Allen & Kimbell v. Bender CA2/6

Filed 12/1/14 Allen & Kimbell v. Bender CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SIX

ALLEN & KIMBELL, 2d Civil No. B246879 (Super. Ct. No. 1385303) Plaintiff and Respondent, (Santa Barbara County)

v.

NANCY BENDER,

Defendant and Appellant.

Nancy Bender appeals the judgment awarding unpaid legal fees to respondent Allen & Kimbell. Appellant contends (1) the trial court abused its discretion in denying her ex parte application to continue trial; and (2) the judgment is void because it was entered after she removed the action to federal court. The record on appeal is inadequate to establish either claim. Accordingly, we affirm. FACTS AND PROCEDURAL BACKGROUND Appellant signed a retainer and fee agreement for respondent law firm to represent her as beneficiary under a family trust. In February 2012,1 respondent filed suit against appellant for unpaid legal fees and costs. Appellant subsequently rejected an

1 All further date references are to the year 2012.

arbitration award in respondent's favor and elected a trial de novo. A mandatory settlement conference (MSC) was set for November 30, and trial was set for December 11. The court ordered the parties to participate in a case management alternate dispute resolution settlement session (CMADRESS). Appellant objected to the assigned neutral, and an alternate neutral was assigned on July 30. On November 2, appellant filed an ex parte application to continue the trial and MSC. The court denied the application. Appellant did not attend the November 30th MSC and was accordingly sanctioned. The civil docket sheet indicates that appellant filed a "notice of removal" on December 11. That same date, the court received a letter from appellant's physician stating that appellant had been evaluated on December 6 "with complaints of fatigue and inability to concentrate[.]" The physician added: "[Appellant] has requested me to write a letter to the Court explaining her situation, and requesting that the upcoming trial date be postponed due to her inability to cope with one more stress in her life. She feels that within the next three to four months, . . . she will be able to respond adequately to the upcoming litigation." At a December 12 pretrial conference, appellant's attorney moved to disqualify the trial judge under Code of Civil Procedure section 170.3. The court denied the motion and noted it "has been alerted that [appellant] has taken steps to remove this case . . . ." The court found that "[appellant's] voluntary participation in this litigation since 6/28/12 constitutes a waiver and/or an estoppel of this new action." The court also found that appellant's attempt to remove the action to federal court was untimely. Neither appellant nor her attorney appeared at trial on December 13. At the conclusion of the trial, the court entered judgment in respondent's favor in the amount of $92,120.50, exclusive of costs and interest. Appellant timely appealed. In designating the record on appeal, she did not include her ex parte application to continue trial, the