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Allen Thompson v. Henry Doering et al

August 28, 2012

ALLEN THOMPSON, PLAINTIFF AND APPELLANT,
v.
HENRY DOERING ET AL., DEFENDANTS AND RESPONDENTS.



(Super. Ct. No. 34-2008-00024380-CU-CO-GDS)

The opinion of the court was delivered by: Butz , J.

Thompson v. Doering

CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 this pro se judgment roll appeal, plaintiff Allen Thompson contends the trial court erred in denying his request for a continuance of the trial. The trial court proceeded as scheduled upon the pleadings alone, and the court entered judgment in defendants' favor.

Finding no error, we shall affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff has elected to proceed on a clerk's transcript. (Cal. Rules of Court, rule 8.121(b).)*fn1 Thus, the appellate record does not include a reporter's transcript of the proceeding at issue. This is referred to as a "judgment roll" appeal. (Allen v. Toten (1985) 172 Cal.App.3d 1079, 1082-1083; Krueger v. Bank of America (1983) 145 Cal.App.3d 204, 207.)

The pleadings are not included in our limited appellate record.*fn2 One document submitted by defendants to the trial court describes the action as having been brought by plaintiff against his former landlords, seeking damages of $17 million. By the time of trial, according to defendants, plaintiff's claims had been whittled to claims for "compensation for [p]laintiff's purported tenant improvements, and his purported personal injury claim arising from alleged toxic mold on the premises at issue."

As far as we can discern from the record, the matter was first set for trial in August 2010. One month before trial, in July 2010, plaintiff's counsel's request to be relieved as counsel was granted.

Trial was next set for November 2010. Four court days before trial, plaintiff (representing himself) sought ex parte to continue the trial; his application was denied. On the day set for trial, plaintiff failed to personally appear and the trial court dismissed the action with prejudice, but it later granted plaintiff's motion for reconsideration and/or for relief from the dismissal and reinstated the action. The case was ultimately set for trial on April 4, 2011.

On the day set for trial, plaintiff (now represented by new counsel) submitted a request to continue the trial date when he appeared for trial court assignment. Neither the request nor the bases upon which plaintiff sought the continuance appear in the record on appeal. The court (by Judge Hight) denied the request and assigned the matter to Judge Cadei for trial.

Plaintiff renewed his request before Judge Cadei to continue the trial. Again, the appellate record does not indicate on what grounds plaintiff sought to continue the trial. After the trial court denied plaintiff's motion to continue the trial, his attorney moved to withdraw as counsel; no one objected, and the motion was granted. The trial court's minute order states, "Plaintiff having no witnesses and no evidence, . . . submitted the trial on its ...


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