Verio Healthcare, Inc. v. Superior Court

Trial court did not abuse its discretion in denying defendant a pre-trial continuance based on the fact that its attorney is a member of the state legislature, since the statute upon which the continuance request was based is directory rather than mandatory, and the trial court properly found that granting the continuance would harm the plaintiff while denying it would not harm the defendant.  CCP 595 and 1054.1 were amended in 1968 in an attempt to cure the constitutional defect which the Supreme Court identified in their predecessor statutes in Thurmond v. Superior Court (1967) 66 Cal. 2d 836.  The two statutes purport to mandate that trial courts grant a continuance and stay of pretrial proceedings to a party that is represented by a member of the state legislature unless doing so would abridge a right to invoke a provisional remedy.  This decision holds that the Legislature did not fix the problem Thurmond found.  Ordering proceedings before a court is an inherent part of the judicial power, and a legislative attempt to direct courts to grant continuances interferes with that power, violating the state constitution’s separation of powers.  Hence, the revised statutes, like their predecessors, must be interpreted as directory only, not mandatory.  Here, the trial court did not abuse its discretion in denying the requested continuance.  A motion to disqualify counsel was pending—a provisional remedy invoking the statutory exception.  And the trial court properly found that a continuance would harm the plaintiff, while defendant which sought the continuance was easily able to proceed with the lawsuit represented by other members of the same law firm as the member of the legislature.

California Court of Appeal, Fourth District, Division 3 (Ikola, J.); October 12, 2016; 2016 WL 5929943

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