Sira Cruz, Et Al., Respondents V. Gilber Fransico Rojo, Et Al., Appellants

Citations and pin cites are based on the Westlaw online version of the cited material.
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
SIRA CRUZ, an Individual; PLAZA
LATINA RC, INC., a Washington
Corporation; and MGD PAINTING
CORPORATION, a Washington
Corporation,
Respondents,
v.
GILBER FRANCISCO ROJO, an
individual; PLAZA LATINA GR
CORPORATION, a Washington
Corporation; ALDRIN LUCIO
ROJO, an individual; NORTH
SEATTLE DRYWALL
CORPORATION, a Washington
Corporation; and DOES I-IV,
unknown parties,
Appellants.
No. 82404-0-I
DIVISION ONE
UNPUBLISHED OPINION
S MITH, J. — Gilber Francisco Rojo, Plaza Latina GR Corporation, Aldrin
Lucio Rojo, and North Seattle Drywall Corporation (collectively Rojo) appeal the
denial of their motion for a continuance before a summary judgment hearing.
Because the trial court did not abuse its discretion by denying the motion after
two years of Rojo’s non-participation in the action, we affirm.
FACTS
In May 2018, Sira Cruz, Plaza Latina RC Incorporated, and MGD Painting
Corporation (collectively Cruz) sued Gilber Francisco Rojo and Plaza Latina GR

No. 82404-0-I/2
2
Corporation, alleging that Rojo had breached his fiduciary duties and duty of
care, had tortiously interfered with Plaza Latina RC’s business expectancy, and
had engaged in civil conspiracy and unfair competition. In July, Cruz amended
the complaint, naming additional defendants; adding more claims for tortious
interference, breach of contract, defamation, and conversion; and requesting
declaratory relief and damages. In August 2018, Rojo filed an answer,
affirmative defenses, and counterclaims.
In January 2019, the court granted Rojo’s motion to continue trial. In
June, Rojo’s attorney withdrew as counsel. In August, the court granted Cruz’s
motion to compel discovery responses from Rojo, finding that Rojo had not
responded to any of Cruz’s interrogatories or requests for production from April of
that year. On October 16, 2019, Cruz moved to continue trial because Rojo had
still not responded to any of Cruz’s discovery requests, and the court granted the
motion. In May 2020, the court continued trial to October 2020 due to restrictions
related to COVID-19.1
By September 24, 2020, Rojo had still not responded in any way to the
April 2019 interrogatories and requests for production. The court found that
Rojo’s violation was willful and caused substantial prejudice to Cruz, and
accordingly sanctioned Rojo by striking his answer, affirmative defenses, and
counterclaim. In October 2020, Rojo failed to appear for a bench trial, and at
1 COVID-19 is the World Health Organization’s official name for
“coronavirus disease 2019,” a severe, highly contagious respiratory illness that
quickly spread throughout the world after being discovered in December 2019.

No. 82404-0-I/3
3
Cruz’s request, the court granted a continuance to January 25, 2021. On
December 2, 2020, Cruz moved for summary judgment.
At the hearing on January 25, 2021, a new attorney, Matthew Heyert, filed
a notice of limited appearance for Rojo solely to represent him in a motion to
continue trial. Through Heyert, Rojo filed a motion to continue trial to allow time
to retain new counsel, explaining the delay primarily by reference to Rojo’s
depression and anxiety in the wake of the COVID-19 pandemic. The court
granted a short continuance to February 8 to obtain an interpreter, and set a due
date of February 2 for Rojo’s response to the summary judgment motion. Rojo
did not file a response.
On February 8, Rojo appeared at the summary judgment hearing with
Heyert and a new attorney, William Frick, whom Rojo had just retained to
represent him in the case starting after the continuance hearing. Heyert renewed
the request for a 60-day continuance. The court denied the motion, finding that
Rojo had failed to establish good cause and that it would be prejudicial to Cruz to
continue the hearing any longer. Frick withdrew as counsel because he was not
yet prepared to argue the summary judgment motion. The parties then went
forward with the summary judgment hearing, with Rojo representing himself. The
court granted summary judgment to Cruz, and Rojo appeals.
ANALYSIS
Rojo contends that the court abused its discretion by denying his motion to
continue the hearing. We disagree.
A court may continue a trial for good cause, and may continue a summary

No. 82404-0-I/4
4
judgment hearing to permit a party to obtain essential affidavits or other
evidence. CR 40(d), 56(f).2 The court may consider several factors in deciding a
motion for a continuance, including
the necessity of reasonably prompt disposition of the litigation; the
needs of the moving party; the possible prejudice to the adverse
party; the prior history of the litigation, including prior continuances
granted the moving party; any conditions imposed in the
continuances previously granted; and any other matters that have a
material bearing upon the exercise of the discretion vested in the
court.
Balandzich v. Demeroto, 10 Wn. App. 718, 720, 519 P.2d 994 (1974). The
court’s primary consideration in deciding the motion should be justice. Coggle v.
Snow, 56 Wn. App. 499, 508, 784 P.2d 554 (1990). Allowing new counsel time
to prepare can be an appropriate reason for a continuance, especially where the
party would otherwise “be penalized for the . . . dilatory conduct” of their first
attorney. Coggle, 56 Wn. App. at 508. “In general, a trial court’s decision
granting or denying a continuance of trial lies with the sound discretion of the
court, and will not be disturbed on appeal absent a showing that the trial court
failed to exercise its discretion or manifestly abused its discretion.” City of
Tacoma v. Bishop, 82 Wn. App. 850, 861, 920 P.2d 214 (1996). The court
abuses its discretion if its discretion is “exercised on untenable grounds or for
untenable reasons, considering the purposes of the trial court’s discretion.”
Coggle, 56 Wn. App. at 507.
2 Furthermore, under the King County Superior Court Local Civil Rules
(KCLCR), a continuance should not be granted after the final date to change the
trial date “except under extraordinary circumstances where there is no alternative
means of preventing a substantial injustice.” KCLCR 40(e)(2).

No. 82404-0-I/5
5
Here, the court appropriately weighed the facts in denying Rojo’s motion
for a continuance. The court considered the need to resolve a case that had
been going on for two and a half years and found prejudice to Cruz, who had to
“keep coming back, keep paying her attorneys,” and had an expert ready to
testify. The court also noted that there was not a clear showing that more time
would be particularly useful to Rojo, given that his answer had been stricken and
he had missed the deadline to identify any witnesses or exhibits.3 The court
noted that when the case was continued two weeks prior, “we were pretty
clear . . . that this was likely going to proceed today.” The court appropriately
considered the circumstances of the COVID-19 pandemic, noting that it
“appreciate[d] that we have been living through extraordinary times,” but
ultimately found that the pandemic did not justify the ongoing dramatic lack of
participation on Rojo’s part, especially given that Rojo’s first attorney withdrew in
2019, “long before COVID,” and that Rojo “didn’t get a lawyer, just stopped
participating altogether for over a year.” The court appropriately weighed the
relevant factors and considered the interests of justice, not just for Rojo but also
3 Rojo submitted no affidavits discussing the need to acquire evidence
essential to his defense, as provided for in CR 56(f), presumably because he had
missed the discovery cutoff anyway.

No. 82404-0-I/6
6
for Cruz, and ultimately found that there was no good cause for a continuance.
The court did not abuse its discretion by denying the motion.
We affirm.
WE CONCUR: