§40.6 Analysis

• Jurisdiction: Washington

§40.6ANALYSIS

The following section analyzes CR 40, including a discussion of the procedures involved in setting a case for trial, obtaining continuances of trial for good cause, and changing judges based upon bias or prejudice.

(1)Notice of trial; note of issue

There is no uniform system for setting cases for trial in Washington. State v. Kratzer, 70 Wn.2d 566, 424P.2d316 (1967). Procedures for requesting a trial date are usually established at the local level by local rule. CR 40(b).

(a)Issues of fact—securing a trial date

CR 40(a)(1) discusses a "notice of trial" system, in which notice of trial is filed and served on an opposing party. However, before a case can be scheduled for trial, the case must be "at issue." CR 40 requires, therefore, that an answer to a complaint or a reply to a counterclaim or cross claim, when necessary, be served and filed prior to application for a trial date. Storey v. Shane, 62 Wn.2d 640, 384 P.2d 379 (1963); Burns v. Payne, 60 Wn.2d 323, 373 P.2d 790 (1962). A trial date that is set before all necessary responsive pleadings have been filed must be stricken upon motion of the party who has not yet filed the responsive pleading. Swan v. Landgren, 6 Wn.App. 713, 495 P.2d 1044 (1972). However, keep in mind that superior courts do have the authority to enact local rules to schedule cases on the trial calendar without a request from the parties. CR 40(b).

(b)Issues of law—hearings on motions

CR 40(a)(2) loosely outlines a system for requesting a hearing date for a motion on an issue of law. Service of a "notice of trial" must occur at least three days before any day provided for by court rule for setting causes for trial under CR 40(a)(1). In case an issue of law is raised, either party must serve the opponent a similar notice of trial at least five days before the day set apart by the court under its rules for hearing issues of law. CR 40(a)(2). At least five days before the day of setting causes for trial, the party desiring trial must also file with the clerk a note of issue containing the title of the action, the names of the attorneys, and the date when the last pleading was served. The clerk is directed to enter the cause upon the trial docket according to the date of the note of issue. As a practical matter, the "notice of trial" and "note of issue" are usually combined in a single pleading, which is first served upon the opposing party and then filed with the court at least five days prior to the date upon which the court will schedule the matter for trial. Either party is authorized to file a note of issue and cause an action to be placed upon the trial calendar.

When a notice of trial setting was filed but not served on the defendant's attorney, but the defendant's attorney was present in court and participated in the trial setting, the defendant waived any right to raise the failure to serve the notice as a defense on appeal. Friese v. Adams, 44 Wn.2d 305, 267 P.2d 107 (1954); Kratzer, 70 Wn.2d 566 (agreement during telephone conversation between opposing counsel on acceptable date for trial did not constitute required notice that case had been scheduled for that date). A judgment entered following a trial that was set without proper notice is void. Tuschoffv. Westover, 60 Wn.2d 722, 375 P.2d 254 (1962).

In addition to the method outlined above, CR 40(b) authorizes each superior court to provide by local rule for placing actions upon the trial calendar. The rule also empowers each superior court to promulgate rules for placing actions upon the trial calendar in any other manner the court deems expedient.

Practice Tip: Every county has some form of local rule regarding trial settings, and many require the use of particular trial setting forms. Pay close attention to the specific details included in the various local rules regarding trial setting and to the information required by the various forms. Attempts to increase the efficiency of the courts and to minimize trial delays have resulted in frequent amendments to local rules on trial settings, often creating multiple case tracks. Make sure your version of the local rules is current.

Finally, although CR 40(a)(2) specifies at least five days' notice for hearing motions, other time requirements may apply. Summary judgment motions, for example, require 28 days' notice under CR 56. Consult Chapter 56 (Rule 56. Summary Judgment) of this deskbook for other summary judgment requirements and Chapter 6.(Rule 6. Time) for timing considerations related to providing notice, and always check the local rules before noting any motion.

(c)Preferences

CR 40(c) gives preference to criminal cases over civil cases and also to cases in which the defendant or a witness is in confinement. However, the rule provides that these preferences will not apply in the event that a statute provides otherwise. One such statute is RCW 59.12.130, which gives unlawful detainer actions precedence over all other civil actions.

(d)Conduct of trials

CR 40(d) provides that once a case is set and called for trial, it must be tried or dismissed, unless good cause is shown for a continuance. Even in the absence of the adverse party, unless the court directs otherwise for good cause, a party appearing for trial may proceed with his or her case and take a dismissal or judgment, as may be appropriate. CR 40(a)(5); In re Marriage of Daley, 77 Wn.App. 29, 32, 888 P.2d 1194 (1994). Whether dismissal is taken with or without prejudice is within the discretion of the court. In re Det. of G.V., 124 Wn.2d 288,877 P.2d 680 (1994); Wagner v. McDonald, 10 Wn.App. 213, 516 P.2d 1051 (1973). Trial courts are allowed such broad discretion because it furthers the policy of supporting trial courts in their efforts to expedite cases and prevent congestion on court calendars. Wagner, 10 Wn.App. at 217.

Trial courts are precluded from dismissing a case for nonappearance when the absent party is represented by counsel, and counsel appears and is ready to proceed with trial. Eriksen v. Mobay Corp., 110 Wn.App. 332, 41 P.3d 488 (2002). In Eriksen, the plaintiff failed to appear on the first day of his scheduled trial. Although his attorney admitted that he was not sure how to reach the plaintiff, he represented that he was ready to proceed to trial nonetheless. The trial court denied plaintiff's request for a continuance, and dismissed the action without prejudice. The Court of Appeals reversed, noting that although a defendant may be entitled to a dismissal when the plaintiff does not appear at trial and is unrepresented by counsel, if the plaintiff is represented by counsel and counsel is prepared to proceed with trial, the court has no authority to dismiss the action under CR 40, CR 41, or RCW 4.56.120(3).

(2) Continuances of trials for good cause—generally

There are, essentially, two bases for the continuance of a trial. CR 40(d) provides for continuance of a trial date generally for good cause, and CR 40(e) allows a continuance when there is a need to obtain additional evidence. A trialcourt is given broad discretion in determining whether either of these grounds has been shown. A trial court's ruling on a motion for a continuance will not be disturbed on appeal absent a showing that the trial court either failed to exercise its discretion or manifestly abused it. State v. Miles, 77 Wn.2d 593,464 P.2d 723 (1970); Peterson v. David, 69 Wn.2d 566, 419P.2d138 (1966).

Comment: When reviewing the following discussion regarding continuances, keep in mind that as court congestion has worsened over the years, motions for continuances have come under closer scrutiny by the courts. In fact, some counties now specifically require by local rule that a continuance will be granted only upon a clear and substantial showing of need or under extraordinary circumstances. Be sure to check the current local rule.

The attitude of courts toward continuances reflected in the local rules means that you should request continuances sparingly, and fully document the explanation for your request in the motion. Some local rules further require that motions requesting a continuance either be signed by the party requesting the continuance or contain an explanation of why it was impracticable for the client to sign the motion, along with certification that the party was served with the motion. See, e.g., Pierce County LCR 40(g)(2)(B).

Whether good cause for a continuance has been shown will depend upon the particular facts of each case. The factors a court will consider include the following: (1) the necessity of reasonably prompt disposition of the litigation; (2) the needs of the moving party; (3) the possible prejudice to the adverse party; (4) the prior history of the litigation, including prior continuances granted to the moving party; (5) any conditions imposed in the continuances previously granted; and (6) any other matters that may have a material bearing upon the exercise of discretion vested in the trial judge in the particular case. Balandzich v. Demeroto, 10 Wn.App. 718, 519 P.2d 994, review denied, 84 Wn.2d 1001 (1974). The general rules discussed in the following sections have emerged from consideration of the good cause factors by numerous courts.

(a)Due diligence

A party moving for a continuance based upon good cause must show that it acted with due diligence and in good faith. See, e.g., Odom v. Williams, 74 Wn.2d 714, 446 P.2d 335 (1968); Bramall v. Wales, 29 Wn.App. 390,628 p.2d511 (1981). For example, in Deep Water Brewing, LLC v. Fairway Resources Ltd., 152 Wn.App. 229, 215P.3d990 (2009), review denied, 168 Wn.2d 1024 (2010), the court ruled that defendant was not entitled to a continuance of damages phase of trial, when defendant failed to exercise due diligence in obtaining evidence on the issue of damages and failed to obtain its own expert for several months after...