Wells Fargo Bank v. Superior Court

WELLS FARGO BANK, NATIONAL ASSOCIATION et al., Petitioners, v. THE SUPERIOR COURT OF SAN DIEGO COUNTY, Respondent;OVERLAND DIRECT, INC., Real Party in Interest.

D078087

COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA

February 26, 2021

OPINION AFTER TRANSFER FROM THE CALIFORNIA SUPREME COURT

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(San Diego County Super. Ct. No. 37-2013-00078078-CU-BT-CTL)

ORIGINAL PROCEEDING in mandate. Joel R. Wohlfeil, Judge. Petition denied.

Fidelity National Law Group, David B. Owen; Greines, Martin, Stein & Richland, Robin Meadow and Jeffrey Gurrola for Petitioner Wells Fargo Bank, National Association.

Philip A. Metson for Petitioner A&S Park Boulevard LLC.

The Leichter Firm, Kevin J. Leichter and Andrew Hewitt for Petitioners Sunrise Financial LLC, Nice Team LLC, and E & E Mortgage Bankers Corp.

Epport Richman & Robbins, Steven Huskey, Kimia Sehati and Chrisopher R. Nelson for Petitioners Houshang Aframian, Amir Aframian, and Maria Aframian.

No appearance for Respondent.

Blanchard, Krasner & French, Kipp Williams, John F. Whittemore; Law Offices of Homan Mobasser and Homan Mobasser; Hill, Farrer & Burrill, Daniel J. McCarthy; Law Offices of George Rikos and George Rikos for Real Party in Interest.

Petitioners Wells Fargo Bank, N.A., A & S Park Boulevard, LLC, Sunrise Financial, LLC, Nice Team, LLC, E & E Mortgage Bankers Corp., Houshang Aframian, Amir Aframian, and Maria Aframian (referred to collectively as "Petitioners") are defendants in three consolidated actions filed by real party in interest Overland Direct, Inc. and CTPC, LLC (collectively Overland). After nearly seven years, including a seven-month delay caused by the court closure in response to the COVID-19 pandemic, the case was finally set to begin a first-phase bench trial in October 2020. Petitioners, however, requested another six-month continuance due to their concerns over the pandemic. The trial court denied the continuance request, but implemented a wide range of measures to protect the health of everyone involved in the trial and allowed the parties to attend remotely.

In their writ petition, Petitioners contend the trial court abused its discretion in finding the Petitioners failed to establish good cause for acontinuance of their civil bench trial due to concerns about the COVID-19 pandemic. Alternatively, they contend that, as a matter of law, the trial could not proceed in the manner proposed by the trial court because it would violate a myriad of public health orders and would violate the parties' right to be physically present and participate at trial.

We see no abuse of discretion by the trial court in denying the request for a continuance of trial. We therefore deny the petition. Any renewed request for a continuance based on the circumstances as they exist following the finality of this writ proceeding must be considered by the trial court in the first instance at that time.

FACTUAL AND PROCEDURAL BACKGROUND

As we discussed in a prior opinion arising from this same litigation, Overland alleges Petitioners, along with other defendants that did not join in the writ petition, defrauded it of multiple parcels of real property and seeks to recover title to the parcels. (Sunrise Financial, LLC v. Superior Court (2019) 32 Cal.App.5th 114, 119-120 (Sunrise Financial).)

The earliest of the consolidated actions was filed in 2013 and multiple procedural hurdles and roadblocks precluded the action from proceeding to trial. (Sunrise Financial, supra, 32 Cal.App.5th at pp. 119-120.) The actions were stayed while the prior writ proceeding was pending in this court. Thereafter, a trial date of March 20, 2020 was set. As courts closed across the state due to the pandemic, the trial court continued the trial date in this case to September 18, 2020. Thereafter, the court on its own motion continued trial again until October 23, 2020, and then again to October 26, 2020.

On October 13, 2020, Petitioners filed a "joint emergency health-risk-based ex parte application . . . to continue the trial" for at least six months.Petitioners argued there was good cause to continue the trial because it would require a large indoor gathering of numerous people who would be at risk of contracting COVID-19, some of whom are at increased risk from the virus because they are older and infirm. Petitioners further argued holding the trial would violate the presiding judge's general order and the County of San Diego Health Officer's orders restricting the size of indoor gatherings. As "circumstances unique to this action" allegedly showing good cause for the continuance, Petitioners listed logistical problems and lack of safety precautions at the courthouse; the involvement of parties, attorneys, and witnesses who do not live in San Diego; personal and family hardships of attending trial in person during the pandemic; the risk of contagion and the need to prevent a " 'super-spreader event' "; and the lack of any priority for this civil litigation.

Overland opposed the application on the ground Petitioners had not shown good cause for the requested continuance. Overland contended the trial court had adequate protocols to address COVID-19 concerns; Petitioners' concerns about the increased risk of COVID-19 to certain trial participants were not adequately supported by evidence; the family hardship and inconveniences raised by Petitioners would exist regardless of the pandemic; parties with health concerns could attend by videoconference; the trial court had cleared the trial with the presiding judge; the health officer's restrictions on gatherings did not apply to the "essential business" of the courts; and other factors in the applicable rule of court supported denial of the continuance. (See Cal. Rules of Court, rule 3.1332(d).)

The trial court held a hearing on October 14, 2020, found no good cause to continue the trial, and denied Petitioners' application. In a detailed minute order issued five days later, the court set out protocols for the trial.Only one witness would be allowed in the courtroom at a time, would testify behind a plexiglass shield, and the witness stand would be cleaned between witnesses. Counsel would use the podium between counsel tables or sit at counsel table to question witnesses, and the podium would be cleaned after each use. Those handling exhibits would wear gloves. In addition to the witness and court staff, only 14 persons would be allowed in the courtroom at any given time, with four seats allocated to Overland; three to Wells Fargo, N.A., three to A & S Park Boulevard, LLC; three to Sunrise Financial, LLC, Nice Team, LLC, and E & E Mortgage Bankers Corp.; and one to the Aframians. Each side would also be allowed one technician in the courtroom during its presentation. During breaks and recesses, the courtroom deputy would dismiss trial participants to ensure social distancing. Parties not physically present in the courtroom would be permitted to observe the proceedings remotely by videoconference.

Following the trial court's denial, Petitioners filed a petition for writ of mandate in this court challenging the trial court's order and seeking an immediate stay. In support of their writ petition, Petitioners moved for judicial notice of 14 "documents reflecting official acts and enactments of federal, state, and county governments relating to the ongoing Covid-19 pandemic." (See Evid. Code, §§ 452, 459.) They contend the documents "are relevant to show the extraordinary health risks posed by the Covid-19 pandemic and the extraordinary lengths to which governments have gone—and have required their citizens to go—in order to slow the spread of the virus. This essential factual backdrop makes clear the extent to which the trial court has abused its discretion in ordering an in-person trial in this large, multi-party consolidated action."

On October 23, 2020, this court summarily denied the writ petition but granted Petitioners' motion and supplemental motion for judicial notice. On October 26, trial commenced as planned while the Supreme Court considered a petition for review. Later that same day, the Supreme Court stayed trial court proceedings while it considered the petition for review. On November 6, 2020, the Supreme Court granted the petition for review and transferred the matter with directions to this court to vacate the denial order and to issue an order to show cause why relief should not be granted. Having now followed the directions of the Supreme Court, we consider the merits of the writ petition.

DISCUSSION

I

Petitioners pray for a writ directing the trial court to vacate its order denying their application for a six-month continuance of the trial and to enter a new order granting the application. They assert the trial court erred by denying the continuance because the health risks from the COVID-19 pandemic to participants in the trial, some of whom are elderly and have underlying medical problems that put them at increased risk from COVID-19, constitute good cause for the continuance.

We begin, as we must, with the standard of review. "However convoluted the facts, or complex the issues, the standard of review is the compass that guides the appellate court to its decision. It defines and limits the course the court follows in arriving at its destination. Deviations from the path, whether it be one most or least traveled, leave writer and reader lost in the wilderness." (People v. Jackson (2005) 128 Cal.App.4th 1009, 1018.)

Petitioners fail to address the proper standard of review in their petition, which likely affects their entire presentation of the issues before this court. "Arguments...