The plaintiff-respondent Melanie Arace, as personal representative and successor in interest for Grace R. Miller and Trustee of the Grace R. Miller Trust of May 8, 2002, filed a complaint against Medico Investments LLC, which is a residential care facility owner.
The Melanie Arace lawsuit alleged that Medico or its employee, Elizabeth Colon, engaged in multiple acts of elder abuse of Miller.
The jury signed a verdict in favor of Melanie Arace for Grace R. Miller, which included an award of damages, attorney’s fees and costs.
On appeal, Medico contended that: (1) the trial court erred in denying its motion to continue the trial based on the unavailability of a material witness; (2) the trial court erred in awarding attorney’s fees and costs; and (3) Miller was not entitled to economic damages under her claim for elder abuse or neglect since the jury declined to award noneconomic damages.
The California Court of Appeals, finding no reversible error, affirmed the judgment against Medico.
The attorneys representing Grace R. Miller and personal representative Melanie Arace were Susan D. Stein and Michael G. York.
The jury found that Medico was negligent, but its negligence was not a substantial factor in causing harm to Miller. The judgment was entered in favor of Miller where the jury signed a verdict for $39,296.32 in economic damages plus $89,410 in attorney’s fees and $20,995.36 in costs.
The argument about the continuance was decided by the appellate court and the trial judge based on the law in Forthman v. Boyer (2002), 97 Cal. App. 4th 977, 984-985, which stated that: “The decision to grant or deny a continuance is committed to the sound discretion of the trial court. The trial court’s exercise of that discretion will be upheld if it is based on a reasoned judgment and complies with legal principles and policies appropriate to the case before the court. A reviewing court may not disturb the exercise of discretion by a trial court in the absence of a clear abuse thereof appearing in the record. The burden rests on the complaining party to demonstrate from the record that such an abuse has occurred.”
The appellate court also referred to rules of procedure wherein motions for “continuance of trials are disfavored” and may be granted only upon the showing of good cause, which includes the unavailability of an essential lay witness due to illness, along with “[a] party’s excused inability to obtain essential testimony … or other material evidence despite diligent efforts” (rule 3.1332(c)(6)).
Other factors to be considered by the trial court include: (1) proximity to the trial date; (2) whether there was any previous continuance or delay at trial due to any party; (3) the length of the continuance requested; (4) the availability of alternative means to address the problem that gave rise to the motion for a continuance; (5) the prejudice that parties or witnesses will suffer as a result of the continuance; (6) if the case is entitled to a preferential trial setting; (7) the trial court’s calendar; (8) if trial counsel is engaged in another trial; (9) whether all parties have stipulated to a continuance; (10) whether the interest of justice are best served by a continuance; and (11) any other facts or circumstances relevant to the fair determination of the motion.
Medico argued that since it is vicariously liable for its employee’s actions, it was substantially prejudiced by Colon’s absence because “no one could explain or deny the vast allegations made against her.”
The appellate court disagreed and affirmed the judgment.
Kreisman Law Offices has been handling nursing home abuse lawsuits, nursing home negligence cases, wrongful death lawsuits and elder abuse cases for individuals, families and loved ones who have been harmed, injured or died as a result of the carelessness or negligence of a medical provider for more than 40 years in and around Chicago, Cook County and its surrounding areas, including Elmhurst, Crystal Lake, Gurnee, Morton Grove, Niles, Des Plaines, Wilmette, South Holland, Blue Island, Worth, Naperville, Aurora, Chicago (Logan Square, Hyde Park, Wrigleyville, Bronzeville, Albany Park, Rogers Park, North Lawndale, South Shore, Kenwood, Hegewisch, East Side), New Lenox, Long Grove, Glenview, Buffalo Grove and Orland Park, Ill.
Robert D. Kreisman has been an active member of the Illinois and Missouri bars since 1976.
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