Whitsitt v. County of San Mateo

Filing 66

Order by Magistrate Judge Laurel Beeler granting 56 Motion to Continue.(lblc1, COURT STAFF) (Filed on 3/29/2012)

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UNITED STATES DISTRICT COURT

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Northern District of California

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Oakland Division
LAURA V. WHITSITT,

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For the Northern District of California

UNITED STATES DISTRICT COURT

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No. C 10-04996 LB

Plaintiff,

ORDER GRANTING PLAINTIFF”S
REQUEST TO CONTINUE

v.
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COUNTY OF SAN MATEO,

[ECF No. 56]

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Defendant.
_____________________________________/

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I. INTRODUCTION

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On March 16, 2012, Plaintiff Laura Whitsitt filed a motion to continue the trial dates. ECF No.

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56 at 1. Defendant County of San Mateo opposes the request. ECF No. 57 at 1. The parties jointly

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requested an abbreviated briefing schedule. ECF No. 56-1 at 1-2. The court conducted a telephonic

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hearing on March 23, 2012. The court grants Plaintiff’s request because Plaintiff needs new counsel

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who will require time to prepare for the trial.

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II. DISCUSSION
A. Legal Standard
A trial court’s decision not to grant a continuance is reviewed for abuse of discretion. Martel v.

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County of Los Angeles, 34 F.3d 731, 733 (9th Cir. 1994). In determining whether a district judge

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has abused his or her discretion in refusing to grant a continuance, the Ninth Circuit considers four

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factors: (1) the appellant’s diligence in attempting to prepare his or her case for the

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originally-scheduled trial date; (2) the likelihood that the grant of a continuance would have resolved
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the problem which led the appellant to seek a continuance; (3) the inconvenience a continuance

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would have caused the court and the opposing party; and (4) the extent to which the appellant might

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have suffered harm as a result of the district court’s denial. Id. (citing United States v. 2.61 Acres of

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Land, 791 F.2d 666, 671 (9th Cir. 1985)).

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B. Application of the Four-Factor Standard

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1. Whether Plaintiff Was Diligent in Attempting to Prepare Her Case for the OriginallyScheduled Trial Date

She explains that she felt forced to take on a variety of tasks that attorneys typically perform while

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other tasks have not been timely completed to the detriment of her case. Id. Plaintiff states that she

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began to lose trust in her current counsel beginning in November 2011 and, after an extensive

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For the Northern District of California

Plaintiff asserts that she lost trust and faith in her attorney’s abilities. Motion, ECF No. 56 at 3.

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search, was able to find new counsel in February 2012. Id. at 6. The new counsel, however, agreed

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to take over the case and substitute in as Plaintiff’s new counsel of record only on the condition that

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the trial date be continued from its’ current April 30, 2012 start date. Id.

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Defendant argues that Plaintiff was not diligent because she should have had her counsel

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withdraw in November, did not begin to search for new counsel in earnest until December, and

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waited until March to bring the motion for a continuance. Opposition, ECF No. 57 at 2-3.

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Plaintiff counters that although the breakdown in trust began in November, she believed it was

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not irreparable at this time and attempted to assist her counsel to make improvements. Reply, ECF

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No. 62 at 2. Plaintiff reiterates that she contacted over 25 attorneys during the period of consultation

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and searching in earnest. Id. Plaintiff also explains that Plaintiff’s current counsel recommended

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that Plaintiff and he wait to part ways until Plaintiff had secured an attorney committed to take

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Plaintiff’s case based on his experience in employment cases where it is difficult to find other

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counsel that work on contingency and cases are sometimes dismissed if the plaintiff’s attorney

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withdraws from the case before new counsel is obtained. Id. at 2-3. Plaintiff further describes the

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time that it took for her new proposed counsel to review her case and to work on the motion for a

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continuance. Id. at 3-4.

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The court finds that Plaintiff was diligent because she worked to repair her relationship with
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current counsel and, once that proved infeasible, earnestly searched for new counsel who reasonably

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needed time to review the case and develop a plan for the transition.

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2. Whether the Grant of a Continuance Will Resolve the Problem Which Led to the
Motion for a Continuance
Plaintiff states that the grant of a continuance would allow her new proposed counsel to take
over the case and prepare for the trial. Motion, ECF No. 56 at 6.

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Defendant argues that a continuance will not serve any useful purposes because the pleadings are

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frozen and discovery is closed. Opposition, ECF No. 57 at 3. Given these circumstances, Defendant

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asserts that is too late for Plaintiff to change course and litigate this case in a different manner or to

step in at the last minute and successfully prepare for trial when he has not had an opportunity to

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pursue different theories. Id. Defendant also states that it will be very difficult for an attorney to

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evaluate the witnesses first-hand or work up the case in a way that fits his view of the claims and

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defenses. Id. Defendant then contends that there are no benefits to Plaintiff having a new attorney

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for trial and that Plaintiff’s concerns about her attorney are unfounded. Id. at 3-4. Finally,

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Defendant states that Plaintiff’s involvement has harmed her interests by wasting judicial and county

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resources with frivolous motions and demands. Id.

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Plaintiff replies she does not intend to change theories but believes that she must make a change

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in counsel and that she has greater faith in her new attorney’s ability to try the case, even given his

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lack of involvement in the earlier proceedings. Reply, ECF No. 62 at 3. Plaintiff further explains

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that a continuance would greatly reduce the workload of Plaintiff that is typically done by attorneys,

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give her needed time to rest for her medical conditions, and provide additional time to look for work

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to mitigate damages. Id. Plaintiff also observes that Defendant has complained about her current

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counsel’s lack of diligence and timeliness. Id. at 3-4.

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Based on the its observations of the conduct of Plaintiff’s current counsel, the court finds that the

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grant of a continuance, which would permit Plaintiff’s proposed new counsel to take over the case,

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would resolve the issues driving the request.

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3. Prejudice to the Opposing Party and Court

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Plaintiff asserts that the extent of the prejudice to the opposing party and the court can be
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minimized by picking a new trial date that is convenient for both parties. Motion, ECF No. 56 at 7.

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Plaintiff also repeats her argument – that the court has already rejected in the context of scheduling

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depositions – that the county employees who might be called as witnesses will not be significantly

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impacted, presumably based on their working for the county. Id. Additionally, Plaintiff states her

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assumption that Defendant is not being charged attorneys’ fees because they are using in-house

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county counsel. Id.

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Defendant argues that, by waiting until the proverbial eleventh hour, Plaintiff has greatly

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inconvenienced it because it must respond on short notice to the motion, might have difficulties

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rescheduling the trial, and already has spent a significant amount of time preparing for trial.

clients like any private law firm with the fees and costs associated with this litigation are charged

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For the Northern District of California

Opposition, ECF No. 57 at 4. Defendant explains that its counsel charges an hourly rate and bills its

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against the Human Services Agency’s budget, which is paid for with taxpayer money. Id. Also,

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Defendant asserts that the continuance will require Defendant to prepare for trial twice if the

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continuance is granted because Plaintiff waited so long to bring this motion and the issues will no

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longer be fresh by the time a continued trial would take place. Id. at 4-5. Defendant also notes that

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fees for other matters – such as attending a third settlement conference – might accrue. Id. at 5.

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Plaintiff responds by asserting its understanding that, pursuant to San Mateo County Ordinance

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Code § 2.14.020, county counsel may not charge fees to any agency for which the Board of

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Supervisors is the governing board or ex officio governing board of the agency (such as the Human

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Services Agency). Reply, ECF No. 62 at 7. Plaintiff also argues that Defendant will not have to

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prepare for trial twice if the continuance is granted because the work being done is work preparing

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the pre-trial filings, which is written work that will not need to be redone. Id.

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4. Extent of Prejudice to Plaintiff If Continuance Is Denied

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Plaintiff asserts that a denial would severely prejudice Plaintiff’s chances to be successful at trial

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and, if denied, that she would continue to seek new counsel. Motion, ECF No. 56 at 7. Defendant

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asserts its view that proceeding with current counsel is Plaintiff’s best option. Opposition, ECF No.

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57 at 5.

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Again, based on the its observations of the conduct of Plaintiff’s counsel, the court finds that
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Plaintiff would be prejudiced if her motion was denied.

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III. CONCLUSION

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Here, the court finds that three of the four factors weigh in Plaintiff’s favor. The other factor –

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the extent of prejudice to the opposing party – is not sufficient to deny the request. For the

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foregoing reasons, the court GRANTS Plaintiff’s request.

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Additionally, the court ORDERS that discovery remains closed, the length of trial will not

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extend beyond three days, and the new trial date is scheduled to begin on October 22, 2012.

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The following are the new deadlines for this case:

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Case Event

Filing Date/Disclosure
Deadline/Hearing Date

Meet and confer re pretrial filings

9/11/2012

Pretrial filings due

9/20/2012

Oppositions, Objections, Exhibits, and Depo Designations due

9/27/2012

Final Pretrial Conference

10/11/2012, at 10:30 a.m.

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Trial

10/22/2012, at 8:30 a.m.

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Length of Trial

3 days

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For the Northern District of California

UNITED STATES DISTRICT COURT

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This disposes of ECF No. 56.

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IT IS SO ORDERED.

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Dated: March 28, 2012
__________________________
LAUREL BEELER
United States Magistrate Judge

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ORDER
CV10-04996 LB