Opinion
B201774
4-22-2009
HONG CHANG FRUIT AND VEGETABLE PRODUCTS CORP., et al., Plaintiffs and Appellants, v. AMERICAN EVER-BEST CORPORATION et al., Defendants and Respondents.
Law Offices of William B. Stremel and William B. Stremel for Plaintiffs and Appellants. Law Office of Donn Christensen and Donn Christensen for Defendants and Respondents.
Not to be Published in the Official Reports
Plaintiffs and appellants Hong Chang Fruit and Vegetable Products Corp. (Hong Chang) and American Texing and Trading Corporation (American Texing) (Hong Chang and American Texing are referred to collectively as plaintiffs) appeal from the judgment entered against them following a court trial in their action against defendants and respondents American Ever-Best Corporation (American Ever-Best) and George Chou (collectively, defendants) for breach of contract and other claims. Plaintiffs contend the trial court erred by denying their motion to continue the trial, by denying their request to allow an unavailable witness to testify by contemporaneous video transmission, and by denying their request to compel defendants to produce documents pursuant to a subpoena duces tecum. We affirm the judgment.
BACKGROUND
Plaintiffs filed this action for breach of contract, fraud, breach of fiduciary duty, and other claims in July 2006. In January 2007, a trial date was set for May 29, 2007. At the final status conference on May 24, 2007, plaintiffs suggested for the first time that they might not be ready for trial because defendants had not produced certain documents subpoenaed on May 14, 2007, and because plaintiffs themselves were unavailable to testify at trial. Plaintiffs counsel explained that the two individuals who were principals of Hong Chang and American Texing were both in China and could not be present at trial. Counsel offered to have those individuals testify by contemporaneous video transmission.
The trial court asked plaintiffs counsel for statutory authority permitting trial testimony by contemporaneous video transmission, and counsel responded that he did not have that information readily available, but would provide the court with the relevant statutory authority by the following week. The trial court addressed plaintiffs argument concerning the subpoena to produce documents, as follows: "I have taken a look at your notice to produce at trial and frankly I find it to be inappropriate. Youre asking the defendant to produce at trial documents that should have been produced during discovery." The trial court noted that the subpoena encompassed "88 separate categories of documents" and admonished plaintiffs that "[t]hats not what a notice to produce at trial is intended for." The court instructed plaintiffs that if they wished to seek a continuance of the trial date, they should do so by "a motion supported with an affidavit."
On the day of trial, plaintiffs filed an ex parte application to continue the trial date on the following grounds: (1) Chen Qinhai, the principal of Hong Chang and a citizen and resident of China, could not attend the trial because he did not possess an exit visa that would permit him to travel from China to the United States; (2) Tony Truong (Truong), the principal of American Texing, was in China and unable to return to the United States because of immigration problems; and (3) defendants bank had failed to produce documents that were the subject of a subpoena duces tecum. Plaintiffs ex parte application stated that Truong was willing to make himself available to testify by contemporaneous video transmission from China, but that a continuance was necessary to obtain the requisite equipment. Alternatively, plaintiffs requested a continuance to allow Truong to be deposed in China, either telephonically or in person. In their ex parte application, plaintiffs cited no statutory or case authority permitting a witness to appear and testify at trial by contemporaneous video transmission.
Plaintiffs ex parte application was supported by the declaration of Truong, dated May 26, 2007. In his declaration, Truong states: "I am presently in Guangzhou, China. My present immigration status temporarily prevents me from returning to the United States. I have retained legal counsel in New Jersey who are currently actively involved in litigation over this immigration mater. At the present time it is not known when the immigration matter will be resolved nor is it presently known when I may return to the United States." Truongs declaration further states: "My legal counsel in this case, William Stremel, learned that I was away on business in China in April, 2007. In May, 2007, I was advised that the immigration matter was not going to resolve in the near future. In about mid-May, 2007 I advised Mr. Stremel that it was not likely that I would be able to travel to the United States for the trial date."
Defendants filed an opposition to the request for continuance, in which they argued that plaintiffs were not entitled to a continuance based on the alleged unavailability of their witnesses because they had failed to make those witnesses available for deposition during discovery. Defendants further argued that plaintiffs had had ample opportunity during discovery to obtain the banking records they were now seeking, and that plaintiffs failure to do so was not a valid reason to continue the trial.
On the day of trial, after hearing argument from the parties, the trial court denied plaintiffs request for a continuance. The trial court observed that in light of Truongs immigration problems, "it appears to me that the plaintiff conceivably could never be able to return to the United States."
The matter proceeded to trial. After plaintiffs presented the testimony of their sole witness, Ning George Zhau (Zhau), an officer of American Ever-Best, the trial court stated that judgment would be entered in favor of defendants. The court found, based on the testimony of Zhau, that American Ever-Best had imported a shipment of garlic from China and sold that shipment to American Texing. The court further found no basis for holding American Ever-Best liable to Hong Chang for that shipment. After judgment was entered, plaintiffs filed this appeal.
DISCUSSION
I. Continuance
California Rules of Court, rule 3.1332 governs continuances of trial. Rule 3.1332(a) provides that "[t]o ensure the prompt disposition of civil cases, the dates assigned for a trial are firm." Rule 3.1332(c) further provides: "Although continuances of trials are disfavored, each request for a continuance must be considered on its own merits. The court may grant a continuance only on an affirmative showing of good cause requiring the continuance."
Circumstances that may indicate good cause include: "The unavailability of a party because of death, illness, or other excusable circumstances" and "[a] partys excused inability to obtain essential testimony, documents, or other material evidence despite diligent efforts." (Cal. Rules of Court, rule 3.1332 (c)(2), (c)(6).) The trial court may also consider such other relevant factors as "(1) The proximity of the trial date; [¶] (2) Whether there was any previous continuance, extension of time, or delay of trial due to any party; [¶] (3) The length of the continuance requested; [¶] . . . [¶] (5) The prejudice that parties or witnesses will suffer as a result of the continuance; [¶] . . . [¶] (10) Whether the interests of justice are best served by a continuance, by the trial of the matter, or by imposing conditions on the continuance." (Cal. Rules of Court, rule 3.1332(d).) Furthermore, where a litigant requests a last minute continuance, the court must also examine "the degree of diligence in his or her efforts to bring the case to trial." (Oliveros v. County of Los Angeles (2004) 120 Cal.App.4th 1389, 1396.)
The decision whether to grant a continuance is within the trial courts sound discretion and will not be disturbed on appeal unless the decision is arbitrary, capricious, or patently absurd and results in a miscarriage of justice. (Jensen v. Superior Court (2008) 160 Cal.App.4th 266, 271.) In evaluating the propriety of the trial courts ruling, we consider the information the parties provided to the court prior to the ruling (Hansen v. Owens-Corning Fiberglass Corp. (1996) 51 Cal.App.4th 753, 761), not following the ruling.
Plaintiffs inability to obtain banking records on the eve of trial was not a valid ground for continuing the trial, nor was the unavailability of plaintiffs own witnesses. As noted by the trial court, the banking records plaintiffs sought to have produced at trial should have been obtained during discovery. Plaintiffs lack of diligence during discovery is not a valid basis for a continuance. (Oliveros v. County of Los Angeles, supra, 120 Cal.App.4th at p. 1396.)
The inability of plaintiffs principal witness, Truong, to attend the trial because of his immigration status was not a valid basis for a continuance. "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. [Citation.]" (Whalen v. Superior Court (1960) 184 Cal.App.2d 598, 600.) Plaintiffs last minute request to continue the trial for an indefinite period of time was not supported by a legally sufficient showing, and a continuance would not accomplish substantial justice. Truongs declaration in support of the motion for a continuance fails to demonstrate why a continuance could not have been requested before the date of trial. No good cause was shown as to why plaintiffs twelfth-hour request for a continuance should have been granted.
The open-endedness of plaintiffs request is another factor that weighed against the granting of a continuance. Plaintiffs admit, in the declarations of Truong and his counsel, that "it is not known when the immigration matter will be resolved nor is it presently known when [Truong] may return to the United States." The trial court did not abuse its discretion in refusing to continue the trial, for an indefinite period of time, to await the uncertain resolution of Truongs immigration problems. (Lea v. Shank (1970) 5 Cal.App.3d 964, 978 [trial court did not abuse its discretion in denying motion for a continuance for an indefinite time to obtain evidence of unknown content].) Plaintiffs contend the denial of their request for a continuance deprived them of their due process right to a fair trial; however, the granting of such a request would have impinged upon defendants right to timely resolution of a lawsuit that had been pending against them for nearly a year. (See Arnett v. Office of Admin. Hearings (1996) 49 Cal.App.4th 332, 342 [trial court abused its discretion by granting an indefinite continuance when the defendant was unable to attend trial because he was incarcerated].)
The cases on which plaintiffs rely in support of their position are distinguishable. In Whalen v. Superior Court, supra, 184 Cal.App.2d 598, the trial courts denial of a request for continuance was determined to be an abuse of discretion when the defendant was involuntarily absent from the jurisdiction because he received a commission in the Navy two months before the date of trial and was soon thereafter transported to the far Pacific theater of naval operations, he neglected to advise his attorneys of these developments, and the plaintiff stipulated to a continuance. Here, there was no stipulation to continue the trial, and defendants objected to any continuance. In Jurado v. Toys "R" Us, Inc. (1993) 12 Cal.App.4th 1615, the trial courts refusal to "trail the case for a few days" was deemed an abuse of discretion when a continuance was sought because a subpoenaed witness failed to appear. (Id. at p. 1620.) In the instant case, plaintiffs sought an indefinite continuance based on the fact that Truong might never be able to return to the United States. The denial of plaintiffs request for a continuance was not an abuse of discretion.
II. Testimony by Video Transmission
Plaintiffs contend the trial court erred by refusing to allow their witnesses to testify by contemporaneous video transmission from China. Allowing witnesses in a foreign country to present testimony in this manner raises complex issues of international law concerning the administration and enforcement of oaths, the rules of evidence, and the right to confront witnesses. (See Davies, Bypassing the Hague Evidence Convention: Private International Law Implications of the Use of Video and Audio Conferencing Technology in Transnational Litigation (2007) 55 Am. J. Comp. L. 205.) The trial court in this case was understandably reticent to allow plaintiffs witnesses to testify in this manner absent an express statutory grant of authority. Plaintiffs provided the trial court with no such authority.
In this appeal, plaintiffs argue that rule 43(a) of the Federal Rules of Civil Procedure (28 U.S.C.) permits live remote testimony by "contemporaneous transmission" "for good cause in compelling circumstances and with appropriate safeguards," and that the Ninth Circuit has determined that telephonic testimony by a witness located outside the courtroom was acceptable in a deportation hearing and in an SEC enforcement proceeding. (See Beltran-Tirado v. INS (9th Cir. 2000) 213 F.3d 1179, 1186; Alderman v. SEC (9th Cir. 1997) 104 F.3d 285, 288, fn.4.) The Federal Rules of Civil Procedure and federal case law applying those rules do not govern proceedings in California state courts. Moreover, neither Beltran nor Alderman involved witnesses who were testifying from locations outside of the United States or by contemporaneous video transmission.
"Trial courts are afforded discretion to work within existing guidelines to determine the admissibility of evidence." (In re Nada R. (2001) 89 Cal.App.4th 1166, 1176.) A reviewing court will not disturb the trial courts determination in this regard unless it is arbitrary, capricious, or patently absurd. (Ibid.) The trial courts denial of plaintiffs request to present the testimony of witnesses in China by contemporaneous video transmission was not an abuse of discretion. (Ibid. [trial court did not abuse its discretion by refusing to permit witnesses residing in Saudi Arabia to testify telephonically at trial].)
III. Enforcement of Subpoena Duces Tecum
Plaintiffs contend the trial court erred by rejecting their request to enforce a subpoena duces tecum served on defendants bank. As the trial court noted, however, the documents sought by plaintiffs were not the proper subject of a subpoena to produce documents at trial. Plaintiffs failed to seek production of those documents during discovery and thereby forfeited the remedy available during discovery of filing a timely motion to compel production. The trial courts denial of plaintiffs request to enforce the subpoena was not an abuse of discretion. (See Johnson v. Superior Court (1968) 258 Cal.App.2d 829, 837.)
DISPOSITION
The judgment is affirmed. Defendants are awarded their costs on appeal.
We concur:
BOREN, P. J.
DOI TODD, J.
During oral argument, plaintiffs counsel suggested that Penal Code section 1340 supports the use of testimony by contemporaneous videoconference in this case. Penal Code section 1340 accords a trial court discretion to allow the examination of a witness in a criminal trial to be conducted through a contemporaneous, two-way video conference system if the witness is so sick or infirm as to be unable to attend the examination in person. The instant case was not a criminal trial, nor was the witness who sought to testify by videoconference unable to attend the trial because of sickness or infirmity. Penal Code section 1340 does not apply.