Inman v. Fremont Medical Center

Opinion

THE COURT* Plaintiff appeals from judgment of dismissal entered upon defendant’s motion,- after the court conditionally granted plaintiff’s request for a continuance of trial and he declined to accept the condition. It is contended that the trial court abused its discretion in imposing the condition that plaintiff pay Sutter County’s expenditures for the entire jury panel summoned.

This action was initiated by a complaint for damages for medical malpractice filed by plaintiff in propria persona on May 24, 1972. Defendant answered on August 15, 1972. On September 13, 1972, plaintiff substituted the law firm of R. Jay Engel of San Francisco for himself in propria persona. An at issue memorandum was filed by substituted counsel on that day. On February 7, 1973, the matter was set for pretrial on June 5 and for trial on June 12-15. On June 7, 1973, a stipulation was filed agreeing to continue the trial date and the court [171]ordered the matter dropped to be reset. Pretrial conference was had as scheduled, and October 30, 1973, was fixed as the new date for trial.

On September 26, plaintiff filed a second substitution of attorneys, returning himself to the status of a pro. per. litigant. On October 1, formal notice of the October 30 trial date was served on plaintiff. On Friday, October 26, a third substitution of attorneys was filed by plaintiff, this time substituting the law firm of Larimer and Evans of Maiysville. Larimer and Evans at the same time filed an affidavit and motion to disqualify Judge James G. Changaris under Code of Civil Procedure section 170.6.

On Monday, October 29, 1973, plaintiff, through counsel John Larimer, filed a motion for continuance and a declaration in support thereof. In his declaration Mr. Larimer stated that on September 26, 1973, he had attempted to get the file from plaintiff’s former counsel, but did not receive it until October 25, 1973; that his review of the file after receiving it revealed that the case was not ready for trial for various reasons, principal of which was the fact that no arrangements had been made for plaintiff’s medical testimony. The declaration further stated that defendant’s counsel had agreed to the continuance and that a written stipulation to that effect was in the process of preparation and would be filed. Such stipulation (as well as a stipulation that the motion to continue could be heard in the absence of defense counsel) was filed that same day, October 29, 1973.