Pham v. Mai-Thi Thi Nguyen

SONENSHINE, J., Concurring.

I concur in the result but cannot join the majority opinion. The dicta contained therein relates to a non-issue and is premised on what I deem a questionable analysis of public policy and the law. What follows is an opinion which comes to the same conclusion, but with fewer words.

I

Michael Pham sued Mai-Thi Thi Nguyen for dental malpractice on August 4, 1994. The matter was sent to judicial arbitration where an award issued in favor of Nguyen on September 11,1995. Pham requested a trial de novo and the matter was set for trial on January 29, 1996.

Four days before trial, the parties submitted a stipulated request for a continuance, claiming they had not had time to depose their expert witnesses. The trial judge summarily denied the request. On the day of trial, Nguyen again requested a continuance, this time arguing she had learned just two days before trial that her expert would be unavailable. This request was also denied.

After a court trial, the court found in favor of Pham. Nguyen appeals, contending the trial court abused its discretion in refusing to grant a continuance.

II

Continuances must be “ ‘granted sparingly . . . and then only on a proper and adequate showing of good cause.’ ” (County of San Bernardino v. Doria Mining & Engineering Corp. (1977) 72 Cal.App.3d 776, 781 [140 Cal.Rptr. 383], fn. omitted.)1 Judicial proceedings should be scheduled and determined as efficiently and as timely as justice allows. Indeed, a court shall not grant a continuance except upon “an affirmative showing of good cause [pursuant to] the standards recommended in section 9 of the Standards of Judicial Administration.” (Cal. Rules of Court, rule 375(a).)

*20The First Request

Nguyen contends the trial court abused its discretion in denying the continuance because the request was made by both parties in writing. Code of Civil Procedure section 595.2 provides: “In all cases, the court shall postpone a trial, or the hearing of any motion or demurrer, for a period not to exceed thirty (30) days, when all attorneys of record of parties who have appeared in the action agree in writing to such postponement.” Despite the statute’s mandatory language, our Supreme Court long ago explained, “[T]he legislature [did not] inten[d] to make the action of the parties compulsory upon the court in each instance. Its provisions must be held directory ....’’ (Lorraine v. McComb (1934) 220 Cal. 753, 757 [32 P.2d 960], italics added; see also County of San Bernardino v. Doria Mining & Engineering Corp., supra, 72 Cal.App.3d 776, 784.)

Undaunted, Nguyen argues the court nevertheless erred in denying the parties’ request to continue because their inability to schedule depositions constituted good cause. However, parties to an action are responsible for the timely depositions of their witnesses. They may agree to extend the time for completion of discovery, but “[i]n no event shall this agreement require a court to grant a continuance . . . .” (Code Civ. Proc., § 2024, subd. (f).)

The Second Request

“[U]navailability of a witness” is grounds for a continuance only when the witness’s “‘. . . absence is due to an unavoidable emergency that counsel did not know and could not reasonably have known at the time of the pretrial or trial setting conference.’ ” (7 Witkin, Cal. Procedure (4th ed. 1997) Trial, § 19, p. 46, italics added.) Nguyen’s belated discovery that her expert would be unavailable obviously does not meet this standard. Lack of expert testimony may have prejudiced Nguyen’s case, but she is responsible for the preparation of her own witnesses.

I would affirm the judgment.

Nguyen’s reliance on Whalen v. Superior Court (1960) 184 Cal.App.2d 598 [7 Cal.Rptr. 610] is misplaced. True, that case held continuances should be liberally granted. However, more recent case law has specifically disapproved this doctrine, and the controlling rule is as stated above. (See, e.g., County of San Bernardino v. Doria Mining & Engineering Corp., supra, 72 Cal.App.3d 776, 781.)