Young v. Redman

• Decision Date: 26 February 1976
• Citation: 55 Cal.App.3d 827,128 Cal.Rptr. 86
• Court: California Court of Appeals Court of Appeals
• Parties: Edward D. YOUNG, Jr., Plaintiff, Cross-Defendant and Respondent, v. Marshall REDMAN, Defendant, Cross-Complaint, Cross-Defendant and Appellant, Thomas J. Gibbons, Jr., Intervenor, Cross-Complainant and Respondent, Louis Kloosterman, Cross-Defendant, Cross-Complainant and Respondent. Civ. 45874.

Page 86

128 Cal.Rptr. 86

55 Cal.App.3d 827

Edward D. YOUNG, Jr., Plaintiff, Cross-Defendant and Respondent, v. Marshall REDMAN, Defendant, Cross-Complaint, Cross-Defendant and Appellant Thomas J. Gibbons, Jr., Intervenor, Cross-Complainant and Respondent Louis Kloosterman, Cross-Defendant, Cross-Complainant and Respondent.

Civ. 45874.

Court of Appeal, Second District, Division 1, California.

Feb. 26, 1976.

Paul Kallman and Kallman & Levenberg, Los Angeles, for defendant, cross-complainant cross-defendant and appellant Marshall Redman.

Allan F. Grossman, Encino, for plaintiff, cross-defendant and respondent Edward D. Young, Jr.

Arthur S. Katz and Kleinberg, Laver, Morganstern, Katz & Jacobs, Beverly Hills, for cross-defendant, cross-complainant and respondent Louis Kloosterman.

Edwin B. Branch and Branch & Torley, Rosemead, for intervenor, cross-complainant and respondent Thomas J. Gibbons, Jr.

HANSON, Associate Justice.

Defendant, cross-complainant and cross-defendant Marshall Redman (hereinafter REDMAN) appeals from a judgment for money damages in favor of plaintiff, cross-defendant and respondent Edward D. Young, Jr. (hereinafter YOUNG) for breach of contract to purchase real property and in favor of cross-complainants and respondents Louis Kloosterman (hereinafter KLOOSTERMAN) and Thomas J. Gibbons, Jr. (hereinafter GIBBONS) for broker commissions. Defendant REDMAN also appeals from the trial court's awarding $1,000 to each of the above respondents as sanctions.

THE CASE

On March 18, 1970, REDMAN entered into a contract to purchase from YOUNG a tract of land located in Kern County consisting of 153 acres for $107,100 or $700 per acre.

On March 20, 1971, before the escrow had closed, REDMAN sent YOUNG a notice of rescission alleging that his (REDMAN'S) consent in entering into the contract had been obtained as a result of mistake and misrepresentation as to the topography of the land. YOUNG filed this action against REDMAN for breach of contract, and against Wilshire Escrow Company for deposit into court of the $6,500 down payment made by REDMAN toward the purchase. REDMAN answered and filed a cross-complaint against YOUNG and KLOOSTERMAN, the soliciting real estate broker, for fraud, negligent misrepresentation and mistake. KLOOSTERMAN and GIBBONS, the listing real estate broker, filed cross-complaints against YOUNG for commissions allegedly due on the sale.

On March 5, 1974, REDMAN was notified of the trial date set for May 28, 1974. On May 13, 1974, his attorney served the parties with a notice of motion for continuance of the trial date until after June 6, 1974, on the grounds that REDMAN 'was out of the country on business.' The motion was denied. Prior to trial YOUNG served a 'Notice in Lieu of Service of Subpoena' (Code Civ.Proc., § 1987), requesting REDMAN'S attendance at trial.

On May 29, 1974, the trial commenced in the absence of REDMAN, and lasted three days. Prior to closing arguments, REDMAN'S attorney again requested a continuance, which was denied. By stipulation REDMAN'S deposition was then entered into evidence. Judgment was entered in favor of YOUNG for the sum of $45,780, the alleged difference between the contract price and the value of the land at the time of the breach on May 20, 1971. KLOOSTERMAN and GIBBONS were awarded $5,355 each, as commissions due on the sale. The court below also awarded $1,000 each to YOUNG, KLOOSTERMAN and GIBBONS as sanctions 'by virtue of defendant REDMAN'S failure to appear and completely unmeritorious cross-complaints and defenses' and 'for defendant REDMAN'S vexatious and oppressive conduct in maintaining, in bad faith, his unfounded defenses and cross-actions.'

ISSUES

On appeal defendant and cross-defendant REDMAN contends (1) that the failure to grant him a continuance constituted an abuse of the trial court's discretion; (2) that the damages were excessive because there was no substantial evidence to support the trial court's finding that the value of the land at the time of breach was $400 per acre; and (3) that the trial court had no power to award sanctions to respondents, and that even if it did, the award was excessive.

DISCUSSION

I Did the Trial Court Abuse Its Discretion in Denying REDMAN'S Motions for a Continuance of the Trial?

The denial of a motion for continuance for absence of a party may constitute an abuse of discretion by the trial court sufficient to justify reversal only where there is an affirmative showing of 'good cause,' such as serious illness or unforeseen circumstances which prevented a party from appearing at trial. (See, e.g. Betts Spring Co. v. Jardine Mach Co., 23 Cal.App. 705, 139 P. 657 (defendant seriously ill and sent to Europe by his physician); Jaffe v. Lilienthal, 101 Cal. 175, 35 P. 636 (plaintiff seriously ill in Seattle); Morehouse v. Morehouse, 136 Cal. 332, 68 P. 976 (defendant had suffered serious injuries in an accident); Paccific Gas, etc., Co. v. Taylor, 52 Cal.App. 307, 198 P. 651 (defendant seriously ill in Boston).

There is, however, no such showing in the case at bench, and the mere absence of a party standing alone is insufficient to compel a court to grant a continuance. Even the alleged illness and inability of the defendants to attend the trial has been held insufficient grounds for reversal where the trial court denied a request for a continuance in the absence of supporting affidavits. (Nahas v. Nahhas, 135 Cal.App.2d 440, 287 P.2d 381.) Code of Civil Procedure section 594 provides that a trial may be held in the absence of the adverse party 'unless the court, for good cause, otherwise directs.'

Clearly there is no abuse of discretion by the trial court in denying continuance where a party has adequate notice of the trial date and an opportunity to be present at the trial but fails to adjust personal plans in order to attend. (For instance, in Canty v. Pierce & Anderson, 173 Cal. 205, 159 P. 582, the plaintiff went to his ranch to supervise repairs on some broken machinery; in McGuire v. Drew, 83 Cal. 225, 23 P. 312, defendant was absent in order to supervise the canvassing of returns in an election in which he was a candidate; in Stuckman v. Woodhall, 170 Cal.App.2d 424, 338 P.2d 934, plaintiff was on vacation; and in People ex rel. Dept. Pub. Wks. v. Busick, 259 Cal.App.2d 744, 66 Cal.Rptr. 532, the parties were attending to other personal business.)

Due to the problem of court congestion and delay in bringing civil cases to trial, the Judicial Council of California, following recommendations of a workshop conducted by judges and court administrators, in 1971 adopted new Standards of Judicial Administration for the Superior Courts (effective January 1, 1972, amended in 1974). Sections 9 and 10 thereof provide in relevant part that in order to insure prompt disposition of civil cases these standards state that The superior court should not grant a continuance except in emergencies; that continuances should be granted Only upon an affirmative showing of good cause; and that, In general, the necessity for the continuance should have resulted from an emergency occurring after the trial setting conference that could not have been anticipated or avoided with reasonable diligence and cannot now be properly provided for other than by a continuance. These standards prescribe that matters which, under normal circumstances, would be considered good cause for granting the continuance of a trial date include the death of an attorney or material witness; illness of the trial attorney, a material witness or a party, supported by an appropriate declaration of a medical doctor, stating the nature of the illness and the anticipated period of any incapacity; or the unavailability of a witness only where his absence is due to an unavoidable emergency. (See 4 Witkin, Cal.Procedure (2d ed. 1975 Supp.), Trial, § 30A, pp. 32--36.)

In the instant case, the only reason for REDMAN'S absence was that he was 'out of the country on May 28, 1974, and will not return to this county until on or about June 6, 1974.' Since he made no showing of an emergency requiring his absence from the county, it must be presumed that his failure to appear was voluntary rather than necessary. In the present case, even in the unavoidable absence of the defendant, the court in the exercise of its sound discretion might have denied a continuance since REDMAN'S testimony was adequately preserved in a deposition which was entered into evidence by stipulation of the parties. (See Hansen v. Bernstein, 110 Cal.App.2d 170, 173--175, 242 P.2d 368.)

Accordingly, we conclude that defendant REDMAN did not show 'good cause' for a continuance and the trial court's denial of the motion did not constitute an abuse of its discretion.

II Was There Substantial Evidence to Support the Trial Court's Finding That the Value of the Real Property at the Time of the Breach of Contract Was $400 Per Acre?

It is a well established rule that in examining the sufficiency of the evidence to support a questioned finding, an appellate court must accept as true all evidence tending to establish the correctness of the finding as made, taking into account, as well, all inferences which might reasonably have been thought by the trial court to lead to the same conclusion. Every substantial conflict in the testimony is resolved in favor of the finding. (Nestle v. City of Santa Monica, 6 Cal.3d 920, 925--926, 101 Cal.Rptr. 568, 496 P.2d 480.)

The measure of damages where the purchaser defaults in a contract involving the sale of land is the excess, if any, of the contract price over the market value at the date of breach. (Civ.Code, § 3353; Abrams v. Motter, 3 Cal.App.3d 828, 840, 83 Cal.Rptr. 855; Royer v. Carter, 37 Cal.2d 544, 549, 233 P.2d 539.) The contract price in the present case was $700 per acre.

Evidence presented at trial concerning the value of the land at the time of breach included testimony by YOUNG (the owner of the land), Mr. Robert...