Continuing a Trial Without Notice to An Absent Party
As a general rule, in civil actions, when proper notice has been provided in the first instance and a party fails to appear, the court may continue the trial without requiring further notice to the absent party.
The properly noticed party has a duty to exercise diligence to inform himself or herself of subsequent continuances of the trial. ( Capital National Bank v. Smith (1944) 62 Cal. App. 2d 328, 337-338 [144 P.2d 665]; 7 Witkin, Cal. Procedure (4th ed. 1997) Trial, 87, p. 106.)
Further, the mandatory notice statute's time and method provisions (Code Civ. Proc., 594) apply only to the initial trial date; they do not apply to a continued trial date. ( People ex rel. San Francisco Bay Conservation etc. Com. v. Smith (1994) 26 Cal. App. 4th 113, 127, 129 [31 Cal. Rptr. 2d 488]; Parker v. Dingman (1975) 48 Cal. App. 3d 1011, 1016 [122 Cal. Rptr. 309]; City of San Diego v. Walton (1947) 80 Cal. App. 2d 206, 213 [181 P.2d 424].)
However, resumption of a continued matter without some proof that the absent party has been notified is an abuse of discretion. ( Parker v. Dingman, supra, at p. 1018.)
And due process requires that the manner and content of the renotice provide some reasonable assurance that the party is informed of the continued trial date within a reasonable period prior to resumption of trial. (Ibid.)
Section 366.23, subdivision (a) sets forth detailed requirements for service of process on parents "whenever" the court schedules a section 366.26 hearing. However, this court held in In re Malcolm D. (1996) 42 Cal. App. 4th 904 [50 Cal. Rptr. 2d 148] that section 366.23 did not require that the parent be renoticed pursuant to its provisions when he or she had received proper notice of the section 366.26 hearing, and the hearing was continued in court with the parent present. ( Malcolm D., supra, 42 Cal. App. 4th at p. 913.)
Malcolm D. implicitly utilized two general rules applicable to civil litigation:
(1) the mandatory notice statute provisions do not apply to a properly noticed but continued proceeding;
(2) the parent's actual notice of the continued matter is sufficient and satisfies due process. (See, e.g., People ex rel. San Francisco Bay Conservation etc. Com. v. Smith, supra, 26 Cal. App. 4th at p. 129 [defendant's presence at settlement conference gave him actual notice that matter was continued; he then had duty to stay informed of all further continuances; plaintiff did not have to give renewed formal notice after matter was continued].)
A subsequent case, In re Julian L. (1998) 67 Cal. App. 4th 204 [78 Cal. Rptr. 2d 839], is instructive. There, the incarcerated mother waived her right to be present at a section 366.26 hearing set in October 1997. at the October hearing, the mother's attorney requested to be relieved.
The court granted the request and continued the hearing to February 1998. at the February hearing, the court concluded that the mother's waiver of attendance at the October hearing applied to the February hearing as well. (In re Julian L., supra, at pp. 206-207.)
The appellate court disagreed: "Section 366.23 requires that a parent receive notice '[w]henever a juvenile court schedules a hearing pursuant to Section 366.26. . . .' There is an exception if a parent is present when the hearing is continued. [Citing In re Malcolm D., supra, 42 Cal. App. 4th at p. 913.]
Presence at the proceeding assures that the parent is aware of the date of the next hearing, forestalling a claim of lack of notice. (See ibid.)
On the other hand, a parent who is absent from a hearing will not be informed of the date of the next hearing unless notice is provided.
Mother should have received notice of the continued hearing." (In re Julian L., supra, 67 Cal. App. 4th at p. 208.)
Based on these authorities, a parent who fails to appear at a properly noticed section 366.26 hearing must be notified of the continued hearing.