Opinion
NOT TO BE PUBLISHED
Appeal from an order of the Superior Court of Orange County No. 07D002048, Claudia Silbar, Judge. Request for Judicial Notice.
Stabile & Cowhig, Thomas P. Stabile, Shannon Loeser; Snell & Wilmer, Richard A. Derevan, Todd E. Lundell and Christopher B. Pinzon for Appellant.
Law Offices of Jeffrey W. Doeringer and Jeffrey W. Doeringer for Respondent.
OPINION
RYLAARSDAM, J.
This marital dissolution action has been before us several times. In its latest episode, husband Hao-Cheng Liu appeals from a domestic violence restraining order that prohibits any contact with his wife and now five-year-old daughter for five years. He claims the court erred when it denied his motion to continue the hearing because he had not had the opportunity to depose his wife, Kuo-Ling Chang, and he did not have all the evidence she presented at trial. Further, because he anticipated there would be a continuance he did not travel from Hong Kong and thus did not testify at the hearing. Because failure to continue the hearing was not error, we affirm.
FACTS AND PROCEDURAL HEARING
The parties were married in March 2005 and their daughter was born in June of that year. They separated the next year while residing in Hong Kong. In our recent opinion, In re Marriage of Kuo-Ling Chang and Hao-Cheng Liu (May 28, 2009, G040632) [nonpub. opn.], we set out the procedural background of the initiation of the dissolution proceedings in Hong Kong and subsequently in California. (Id. at pp. 2-3.) In that case we rejected husband’s appeal from a status only judgment of dissolution. (Id. at p. 2.)
In July 2008, shortly after filing her petition for dissolution in California, wife sought restraining orders prohibiting husband from having any contact with her or their daughter. In her declaration in support of the order wife stated that husband had physically assaulted her and the daughter more than one time and had threatened to kill them, and himself, on numerous occasions. She also declared he made harassing telephone calls to her and believed he was having her followed. The court granted a temporary restraining order and set a hearing for August 4, the date the order was to expire.
Some time in July husband served a notice of deposition of wife, including a request to produce documents relating to claims made in the request for the restraining order; the date set was August 27. Husband’s lawyer stated in a declaration that the date was selected based on an understanding he and wife’s counsel had agreed to continue the hearing on the order to show cause to October 1.
On the date of the hearing husband’s counsel requested a continuance, which wife’s lawyer opposed. Although we have no transcript of the hearing, a declaration from husband’s lawyer states “the [c]ourt was not inclined to grant” the request for continuance unless he agreed to accept service of the order extending the temporary restraining order. Despite counsel’s failure to do so, the hearing was continued for one week to August 11 and the existing orders were extended to that date. The court ordered husband’s lawyer to serve the new order on husband in Hong Kong by fax, which she represented she did.
At the continued hearing on August 11 husband’s counsel requested another continuance, arguing that because he had not yet taken wife’s deposition, he would be prejudiced. He stated he believed the court was “forcing the hearing” because he would not accept service of “certain papers.” The court denied the motion. In so doing the judge stated the case was “before this court too often and nothing gets done, and I’m beginning to get the feeling there is some game playing,” “tak[ing] all of [her] time and calendar[ and] it begins to cause unnecessary delay and cost.” Husband did not attend the hearing. The court noted husband had “had notice to be here on numerous occasions” and had failed to attend except one hearing, although the parties had “been [t]here numerous times. This matter needs to get wrapped up.”
The hearing began that day. When husband’s mother was on the stand she experienced some physical difficulties and the matter was trailed until the next day. The matter was then continued until September 10.
Subsequently, wife served an objection to the deposition notice on the ground her deposition had already been taken and concluded and husband had not obtained leave of court to take another deposition. Two days before the deposition was scheduled, husband made an ex parte motion to compel wife to appear and produce the requested documents. The court granted the motion but struck out the request that it proceed in two days and instead ordered it be “at a mutually agreed upon time.” Because the parties could not agree on dates, the deposition was not taken before the continued hearing date.
At the September 10 hearing husband made another motion to continue the hearing, claiming wife had not cooperated in setting deposition dates, and she had presented several exhibits when the hearing was originally commenced that he had never seen and about which he had never had the opportunity to question her. Again, husband did not appear at the hearing because it was his lawyer’s belief the hearing would be continued.
After a lengthy colloquy the court denied the motion. It noted that there had been a “number of appearances” and “problems” in the matter, it was a domestic violence matter, and they were “in the middle of a hearing.” During the discussion the court acknowledged it had ordered both parties’ depositions to be taken. Initially it believed the order was that they be completed before the continued hearing date. But later in the discussion the court realized that had not been a condition, the order stating merely that the parties set a mutually acceptable date. The court also noted that husband had not complied with several court orders and it was not sympathetic to his argument he was being “ambushed.”
After the hearing the court found husband had committed domestic violence against wife. It issued a restraining order prohibiting husband from coming within 100 yards of wife and the child and from harassing, threatening, stalking or contacting either of them, with the duration of the order to be five years. The “no-contact/no-visitation” order as to the child was to “remain in effect until further order.” Before the court would consider modifying the no-contact/no-visitation order, husband had to attend a “batterer’s intervention program” or equivalent. Husband appealed from the minute order setting out the court’s decision and the form “Restraining Order After Hearing” but not from the “Findings and Order After Hearing” setting out the court’s orders.
DISCUSSION
The only issue here is whether the court abused its discretion in refusing to continue the hearing. Husband argues he was entitled to a continuance because he was unable to depose wife prior to the hearing and obtain copies of all the documentary evidence she was to present. We are not persuaded.
Continuance of a trial or hearing is “disfavored” and requests must be supported by a showing of good cause. (Cal. Rules of Court, rule 3.1332(c); In re Marriage of Hoffmeister (1984) 161 Cal.App.3d 1163, 1169.) Husband did not make a sufficient showing.
Husband seems to suggest that he had an absolute right to depose wife and to see wife’s documentary evidence prior to the hearing. However he cites no authority for that proposition and we know of none. He complains that wife’s objection to her deposition “obstructed [his] access to the evidence.” But wife had the right to object to her deposition being taken a second time. (Code Civ. Proc., § 2025.610. subd. (a) [one deposition per party].) The onus was on husband to obtain a court order if he wanted to redepose her. (Code Civ. Proc., § 2025.610, subd. (b) [court may allow second deposition on showing of good cause].) When he finally did so, it was late in the game, after the hearing had already begun. It was only the fortuitous continuance of the hearing due to a witness’s illness that gave him the opportunity to seek such an order before the continued hearing date. Otherwise, the hearing would have been concluded without a motion to compel ever having been brought. That set of circumstances did not mandate that the trial court grant another continuance.
Further, the order compelling the deposition did not require that it be completed before the hearing, only that it be set on a mutually agreeable date. The parties were unable to agree upon a date, and nothing in the record shows wife acted in bad faith in not negotiating to set it. Husband complains her counsel suggested only one date. But both of husband’s lawyers were unavailable for substantial portions of time and had very limited ability to attend before the continued hearing date except on the date they originally set in the deposition notice. In granting the motion to compel, the court struck that date. Thus any delay in setting or failure to set rests just as heavily on husband. Nothing in the record shows there was much urgency in his counsel’s attempt to set a date or to make themselves available, and by the time of the continued hearing the deposition still had not been set. So the court was faced with an open-ended request for another continuance. It was not an abuse of discretion to deny it.
The situation might have been different had the order authorizing the deposition stated it had to be completed before the hearing could resume. But there is no such language in the order. Rather, the court deleted the specific date of a deposition husband had set out in the proposed order and added by interlineation the mutually agreeable date language.
Further, the statute makes clear that there is an urgency to holding a hearing on a domestic violence application for a restraining order. (Fam. Code, § 6326 [court generally must rule on request for protective order on day application is filed]; § 244, subd. (a) [hearing on order to show cause has calendar preference].) This policy in combination with the disfavor of continuances weigh heavily against a continuance. The court was cognizant of this and they were legitimate factors to consider in exercising discretion to deny the continuance. On the date of the hearing wife was prepared to go forward, had her witnesses present, and was again faced with the problem of having the existing orders, set to expire that day, reissued and served. This dispels husband’s assertion wife would suffer no prejudice if the hearing was continued.
Husband complains the court denied the continuance because of his misconduct in other matters, arguing this was imposition of the disentitlement doctrine, which generally applies to dismissal of an appeal because the appellant has violated a trial court order or is in contempt. (In re Baby Boy M. (2006) 141 Cal.App.4th 588, 596 see also Hull v. Superior Court (1960) 54 Cal.2d 139, 146 [trial court may deny process to a disobedient party].) Without discussing whether the doctrine could be applied here, the record does not support husband’s assertion. Granted, the court did note husband had failed to comply with some of its orders. But this was in the context of husband’s claim he was being “ambushed,” which the court discounted. But the decision was not based on his misconduct; there were several other factors the court considered in denying a continuance, including delays in the hearing that had already begun and the priority of domestic violence matters.
Moreover, the court was rightfully concerned with husband’s game playing. On each occasion he requested a continuance his lawyer was “unauthorized” to accept service of an order extending the ex parte temporary restraining order, including at the beginning of the hearing at issue here, attempting to force wife to re-serve him in Hong Kong. When counsel apparently realized the continuance would not be granted, suddenly he had such authority. This is conduct the court had the right to take into consideration in evaluating whether there was good cause to continue the hearing.
It is also curious that when husband requested a continuance of the initial hearing no mention was made of his desire to depose wife. That did not become the reason until he requested a continuance of the second hearing date. This casts doubt on the urgency of obtaining the information.
We reject husband’s argument the court entered the order “without ever having heard [his] side of the story.” The only reason husband did not give his side of the story was because he chose not to attend the hearing. That was at his own peril and was presumptuous at the very least. All that is required is that a party be given notice of a hearing and an opportunity to attend; husband had this. Additionally, he filed a declaration in opposition. He cannot now be heard to complain about his decision not to testify in his own behalf.
Cases cited by husband do not mandate a different result. In In re Marriage of Hoffmeister, supra, 161 Cal.App.3d 1163 the wife sought a modification of spousal support. At a deposition prior to the hearing she stated she had not incurred some of the expenses set out in the financial declaration filed in support of her request but then refused to answer detailed questions about her actual expenses, objecting on the basis of the attorney-client privilege. Three days before the hearing the wife filed an amended financial statement listing additional expenses. On the date of the hearing the husband moved to continue it to have additional time to respond.
The Court of Appeal reversed the trial court’s denial of the motion, holding the husband did not have “an adequate opportunity to contest new claims advanced... at virtually the last moment.” (In re Marriage of Hoffmeister, supra, 161 Cal.App.3d at p. 1170.) The court relied, in part, on the fact that the amended financial statement should have been served at least 15 days before the hearing.
That is not the case here. Husband has not appealed on the grounds wife filed or served any documents untimely. Nor has there been a showing the evidence, particularly wife’s deposition testimony, was required to be provided with the moving papers as was the case in Hoffmeister. And, as discussed above, wife had every right to object to having her deposition taken for the second time.
Likewise In re Marriage of Seagondollar (2006) 139 Cal.App.4th 1116 is inapt. There the trial court issued an order allowing the mother to move with her children to Virginia. The Court of Appeal reversed on the ground the father had not had a fair hearing due to several procedural errors. The two on which husband relies here are the setting of the hearing on eight days’ notice without good cause for shortening time and the court’s failure to grant a three-day continuance so the father’s expert witness could testify. (Id. at pp. 1128-1129, 1130-1131.)
Once again, the facts in this case are not parallel. The application here was not filed on shortened notice. Further, the hearing husband sought to continue was more than one month past the original hearing date, not eight days since the filing of the application as in Seagondollar. In addition, the deposition was not even set by the time of the request for continuance and there was no date certain for a continued hearing, contrary to the three days requested in Seagondollar.
We see no abuse of discretion by the trial court in denying the motion to continue.
Wife filed a request for judicial notice of a joint statement of issues filed in a trial occurring subsequent to the hearing in question and the court’s minute order from the trial. The statement of issues shows the parties agreed to “[c]onfirm prior court orders” regarding custody and visitation, and the minute order states the parties stipulated mother would have sole legal and physical custody of child with father having no visitation. These documents are not relevant to our discussion and the request is denied.
DISPOSITION
The order is affirmed. The request for judicial notice is denied. Respondent is entitled to costs on appeal.
WE CONCUR, SILLS, P. J., MOORE, J.