Whalen v. Superior Court In and For Los Angeles County

• Court: California Court of Appeals
• Writing for the Court: KINCAID; FOX, P. J., and ASHBURN
• Citation: Whalen v. Superior Court In and For Los Angeles County, 7 Cal.Rptr. 610, 184 Cal.App.2d 598 (Cal. App. 1960)
• Decision Date: 14 September 1960
• Parties: Thomas Earl WHALEN, Petitioner, v. SUPERIOR COURT of the State of California, IN AND FOR The COUNTY OF LOS ANGELES, Respondent, and Ilene McMillan, Real Party in Interest. Civ. 24930.

Page 610

7 Cal.Rptr. 610

184 Cal.App.2d 598

Thomas Earl WHALEN, Petitioner, v. SUPERIOR COURT of the State of California, IN AND FOR The COUNTY OF LOS ANGELES, Respondent and Ilene McMillan, Real Party in Interest.

Civ. 24930.

District Court of Appeal, Second District, Division 2, California.

Sept. 14, 1960.

Spray, Gould & Bowers, Los Angeles, for petitioner.

Harold W. Kennedy, County Counsel, Wm. E. Lamoreaux, Asst. County Counsel and Donald K. Byrne, Deputy County Counsel, Los Angeles, for respondent.

KINCAID, Justice pro tem.

Petitioner seeks mandate to compel the respondent court to vacate its order denying his motion for a continuance of a trial and to require such court to make order granting a continuance until some date after January 1, 1961.

The real party in interest, Ilene McMillan commenced action Number SM C 7109 on June 25, 1959, against the petitioner for personal injuries alleged to have resulted when she, a pedestrian, was struck by an automobile operated by petitioner. Petitioner's answer, in addition to denying negligence and damage, alleged defenses of contributory negligence and assumption of risk. Issue was joined and the action was set for trial in the respondent court on August 15, 1960.

The showing made in support of the motion for a continuance until on or after January 1, 1961, was, in effect, that, on August 10 or 11, 1960, petitioner's attorneys first learned through information given them by his mother that petitioner had been commissioned an ensign in the United States Naval Reserve on June 10, 1960; that he had left California on July 10, 1960, was presently at Hong Kong in naval service and would not be able to return to the United States until December 1960.

The showing further indicated that, upon ascertaining said information, petitioner's attorneys promptly notified the clerk of respondent court and advised him that the case was not ready for trial because of petitioner's absence and promptly advised the attorney for the plaintiff-real party in interest of such facts and that continuance of the trial date was desired. The attorney for said plaintiff thereupon agreed to a continuance.

On August 15, 1960, the foregoing facts were presented to the trial judge both orally and by supporting affidavits and petitioner's attorneys moved the court for an order granting a continuance of the trial until such time as petitioner will have returned to the United States; that it was imperative to have petitioner present at the trial in order that he might have his full day in court and that he has a meritorious and valid defense to the action.

The respondent court denied petitioner's motion for a continuance of the trial except to continue same until August 19, 1960, for purpose of allowing petitioner to petition this court for a prerogative writ.

We recognize that the granting or denying of a continuance is ordinarily a matter resting within the discretion of the trial court and that the latter's determination will not be interfered with, except upon a showing of abuse of discretion. Gordon v. Gordon, 153 Cal.App.2d 373, 375-376, 314 P.2d 511; Hurley v. Kazantzis, 82 Cal.App.2d 378, 379, 186 P.2d 434.

The unavoidable absence of a party does not necessarily compel the court to grant a continuance. In such instance the court should be governed by the course which seems most likely to accomplish substantial justice, and it may take into consideration the legal sufficiency of the showing in support of the motion and the good faith of the moving party. McElroy v. McElroy, 32 Cal.2d 828, 832, 198 P.2d 683.

The right of a party to be present at the trial may be waived where the absence of the party is voluntary and under circumstances which ought not to induce a reasonable man having a due regard for the rights and interests of others and of the public, all of whom are interested in the due and prompt administration of justice, to absent himself. Jaffe v. Lilienthal, 101 Cal. 175, 177, 35 P. 636.

Liberality should be exercised in granting continuances when they are not...