Filed 7/30/13 Yuyao Linsheng Electrical Appliance v. AMICO International CA2/4
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.


           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   SECOND APPELLATE DISTRICT

                                                DIVISION FOUR


YUYAO LINSHENG ELECTRICAL                                               B242782
APPLIANCE CO.,
                                                                        (Los Angeles County
         Plaintiff and Appellant,                                        Super. Ct. No. BC441671)

         v.

AMICO INTERNATIONAL CORP.,
et al.,

         Defendants and Respondents.




         APPEAL from a judgment of the Superior Court of Los Angeles County,
Charles F. Palmer, Judge. Affirmed.
         Daniel J. Koes for Plaintiff and Appellant.
         Robert H. Appert for Defendants and Respondents.
                                INTRODUCTION
      Plaintiff and appellant Yuyao Linsheng Electrical Appliance Co. (Yuyao)
appeals from a judgment in favor of respondents AMICO International Corp.,
AMICO Power Corp., Just Trading, Inc., Xing Jung Miao and Hong Yan Jiang,
following a bench trial. Yuyao contends that the trial court erred in denying its
request for a continuance of the trial based on the fact that Yuyao’s only witness
was unable to secure a visa in time to travel from China to Los Angeles for the
scheduled trial date. We conclude that the court did not abuse its discretion in
finding that Yuyao failed to show good cause for the continuance, and thus we
affirm the judgment.


              FACTUAL AND PROCEDURAL BACKGROUND
      Yuyao is a Chinese corporation, operating in China, that sold electrical and
mechanical equipment to respondents in the years 2004 to 2007. Yuyao filed a
complaint against respondents on July 14, 2010, alleging causes of action for
breach of contract, account stated, quantum meruit, and promissory estoppel.
Yuyao sought damages in the amount of $770,677.76. The parties waived jury
trial, and a bench trial was set for September 12, 2011.


Withdrawal of Yuyao’s Original Counsel and Continuance of Trial Date
      On June 29, 2011, Yuyao’s counsel, Matthew Slater, moved to be relieved
as counsel due to “a complete breakdown in attorney-client communications
making further representation in this matter impossible.” The court denied the
motion without prejudice, on procedural grounds. On August 8, 2011, Slater filed
an ex parte application seeking to continue the trial date and to withdraw as
counsel. Following a hearing on August 16, 2011, the court granted the motion for
a continuance, and continued the trial date from September 12, 2011 to April 9,
                                          2
2012. The court’s August 16, 2011 order indicated that no further continuances
would be granted. The court again denied Slater’s motion to withdraw because he
failed to give the statutorily required notice. A subsequent request by Slater to be
relieved as counsel, on the basis of “an irreparable breakdown in the attorney-client
relationship making further representation in this matter impossible,” was granted
on October 6, 2011. On October 7, 2011, the order granting that request and
reiterating the April 9, 2012 trial date was served by mail on Wei Chen, the general
counsel of Yuyao.
      Yuyao obtained new counsel, Martin Rajabov, who was substituted in as
new counsel on December 28, 2011, and Armen Amirkhanian associated in as co-
counsel on March 22, 2012.


Yuyao’s Requests for Another Trial Continuance
      On April 3, 2012, six days before trial was scheduled to begin, Yuyao
moved ex parte for a 60-day continuance of the trial date so that Yuyao’s general
manager, Deng Shun Pan, who resided in China, could attend and testify at trial.
Yuyao’s counsel had spoken with Chen on the phone on March 26, 2012, to
confirm Pan’s attendance at trial, at which time Chen informed them that Pan
could not be in California on April 9. Chen told counsel that the company was
aware of the April 9, 2012 trial date, but no one had informed Pan or anyone else at
the company that Pan needed to be present to testify at trial. Chen estimated it
would take eight weeks to secure the necessary travel documents and visa for Pan
to travel from China to the United States. She also informed counsel that Pan “is
engaged in urgent business matters” in China that would conflict with the April 9,
2012 trial date. A declaration from Pan likewise indicated that due to an urgent
business matter, he was unable to travel to Los Angeles before April 9, 2012.


                                          3
       Yuyao’s motion recounts that after learning of Pan’s unavailability for trial,
Yuyao’s counsel immediately brought the fact to the court’s attention at the final
status conference on March 29, 2012 and orally requested a continuance of the trial
date. The court responded that it had issued an order on August 16, 2011,
indicating that there would be no further continuances of the trial date. Yuyao’s
motion indicated that its current counsel were unaware of that order, which was not
present in the files they inherited from previous counsel.
       Yuyao further represented that Pan was Yuyao’s main witness who would
testify to the agreement between the parties and the breach of that agreement, and
would be able to authenticate documentary evidence. Yuyao argued that it would
suffer irreparable harm and prejudice if Pan were unable to attend the trial.
Respondents opposed the request.
       The trial court denied the request to continue the trial date, noting that “[a]t
the request of plaintiff, the court previously continued the trial date for seven
months and in its order granting the continuance specifically advised the parties
that there would be no further continuances. The record reveals insufficient
diligence by applicant and insufficient good cause to continue the trial again. Any
inability on the part of applicant’s witness to appear at trial is a result of its lack of
diligence in pursuing its claims in this court or its counsel’s failure to advise
applicant many months ago that applicant would need a witness present at trial.”
       Three days later, on April 6, 2012, Yuyao brought another ex parte
application to continue trial for a week, or in the alternative to trail the trial to a
date after April 11, 2012. Yuyao indicated that Pan had applied for an emergency
visa and had an appointment at the Consulate General of the United States in
Shanghai, China, on April 10, 2012. Yuyao asserted that Pan might be able to
secure a visa on the day of his interview, and if not, assuming the Consulate took
the customary three days to process Chen’s visa, he would be able to secure his
                                             4
visa “on or after April 13, 2012.” Pan would then need, “at the very least,” one
additional day for travel. Thus, the earliest Pan could appear at trial was Monday,
April 16, 2012.
      The trial court denied this ex parte application, again relying on its previous
order that no further continuances would be granted. The court further noted that
“[i]t is unclear from the present application when counsel for plaintiff first
discussed with plaintiff the pending April 9, 2012 trial date and that Mr. Pan would
be required to be present. Presumably it was before March 26, 2012 as the moving
papers indicate that the purpose of the telephone call from counsel to plaintiff was
to ‘confirm’ Mr. Pan’s attendance at the trial. In addition, the court is available to
try the case on April 9, 2012 as scheduled. Moreover, on April 16, 2012 the court
is scheduled to commence trial of three different cases which have announced
ready and the court is scheduled to be in trial continuously thereafter until the first
week of July 2012, with perhaps a few one or two day periods between trials. In
light of all these circumstances, the court finds there is insufficient good cause to
continue the trial date.”
      On April 9, 2012, the date trial was scheduled to start, Yuyao’s counsel
orally requested that the trial be postponed for one day, to April 10, 2012, the date
Pan’s interview at the Consulate was scheduled to take place. Counsel indicated
that Pan would either be issued an emergency visa on the spot, in which case he
could travel to Los Angeles and be present for trial on April 11, 2012, or he would
learn that it would take several more days to get a visa, in which case the trial
would have to proceed without him. The court granted the request to trail the trial
to the following day, April 10, 2012, and if Pan was able to secure a visa and
Yuyao could represent that he would be present in court on April 12, the start date
of the trial would be postponed until then.


                                           5
      On April 10, 2012, Yuyao informed the court that Pan had been unable to
secure a visa that day, and that it would take three business days to receive it. The
court ordered that trial commence immediately, “based on the information . . . that
the emergency visa was not granted to the principal of the plaintiff, and the court’s
previous orders indicating that he was available this week to try the case [and] we
are not available next week or thereafter.”


Trial and Motion for New Trial
      The trial commenced on April 10, 2012, and lasted four days. Yuyao did not
call any of its own witnesses, and called only respondent Xing Jung Miao, the
owner of AMICO Power and Just Trading and the general manager of AMICO
International Corporation. Miao was also the only witness called by respondents.
      At the conclusion of trial, the court ruled that Yuyao did not prove that
respondents had failed to pay for goods that were ordered from Yuyao. The court
issued a statement of decision finding in favor of the respondents on all causes of
action, and entered judgment in their favor.
      Yuyao moved for a new trial, in part on the ground that it had been denied a
fair trial when the trial court refused to continue the trial date to permit Pan time to
secure a visa and attend trial. Yuyao argued that Pan’s inability to attend trial was
not due to a lack of diligence on the part of Yuyao or its counsel, and that because
Pan’s attendance at trial was a “legal impossibility,” the court should have granted
a trial continuance. Chen’s declaration stated that Yuyao’s counsel first notified
her by email on March 21, 2012, that Pan needed to attend trial as a witness, and
Chen notified counsel on March 26, 2012, that Pan had urgent business in China in
April and, in any event, would not be able to secure a visa in time to attend trial.
Chen stated that Yuyao’s previous counsel had never communicated the court’s
order that no further continuances would be granted.
                                           6
      The trial court denied the motion for a new trial. Yuyao timely appealed
from the judgment and from the order denying the motion for a new trial.


                                    DISCUSSION
   I. Showing Required for Trial Continuance
      Trial continuances are disfavored and may be granted only on an affirmative
showing of good cause. (Cal. Rules of Court, rule 3.1332(c) (rule 3.1332); see rule
3.1332(a) [“dates assigned for a trial are firm”]; Gov. Code § 68607, subd. (g)
[Trial Court Delay Reduction Act provision directing judges to adopt a “firm,
consistent policy against continuances, to the maximum extent possible and
reasonable, in all stages of the litigation”].) “Although continuances of trials are
disfavored, each request for a continuance must be considered on its own merits.”
(Rule 3.1332(c).)
      Circumstances that may indicate good cause include the unavailability of an
essential witness, party, or trial counsel due to death, illness or “other excusable
circumstances.” (Rule 3.1332(c)(1).) The court must also consider “all the facts
and circumstances that are relevant to the determination” of whether to grant a
request for a trial continuance, including: “(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; [¶]
(4) The availability of alternative means to address the problem that gave rise to
the motion or application for a continuance; [¶] (5) The prejudice that parties or
witnesses will suffer as a result of the continuance; [¶] (6) If the case is entitled
to a preferential trial setting, the reasons for that status and whether the need for a
continuance outweighs the need to avoid delay; [¶] (7) The court’s calendar and
the impact of granting a continuance on other pending trials; [¶] (8) Whether trial
counsel is engaged in another trial; [¶] (9) Whether all parties have stipulated to a
                                           7
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; and [¶] (11) Any other fact or circumstance relevant to the fair
determination of the motion or application.” (Rule 3.1332(d).)
      “Reviewing courts must uphold a trial court’s choice not to grant a
continuance unless the court has abused its discretion in so doing.” (In re
Marriage of Falcone & Fyke (2008) 164 Cal.App.4th 814, 823; see Lazarus v.
Titmus (1998) 64 Cal.App.4th 1242, 1249.) “‘An abuse of discretion occurs
“where, considering all the relevant circumstances, the court has exceeded the
bounds of reason or it can fairly be said that no judge would reasonably make the
same order under the same circumstances.” [Citation.]’” (In re Marriage of
Bower (2002) 96 Cal.App.4th 893, 898–899.) The denial of a motion for new trial
likewise will not be disturbed on appeal absent a clear abuse of discretion.
(Schelbauer v. Butler Manufacturing Co. (1984) 35 Cal.3d 442, 452.)


   II. “Excusable Circumstances” for Witness Absence Demonstrating Good
         Cause

      Yuyao contends that good cause existed for a trial continuance because Pan
was an essential witness who was unavailable due to “an excusable attorney-client
miscommunication.” Although Yuyao admits it had notice of the April 9, 2012
trial date, it contends that the company and Pan were unaware that Pan would need
to personally appear at trial and provide testimony until Yuyao’s counsel raised the
issue by email on March 21, 2012, at which point it was too late for Pan to obtain a
visa. Yuyao asserts that its trial counsel erroneously assumed that Yuyao’s
previous counsel, Slater, had alerted Yuyao that Pan would need to appear at trial.
      Although Yuyao contends that attorney-client miscommunications constitute
“excusable circumstances” under rule 3.1332(c)(1) and therefore constitute good
                                          8
cause for a trial continuance, none of the authorities cited by Yuyao support this
general proposition. Yuyao cites a number of inapposite cases applying the
mandatory relief provision of Civil Procedure Code section 473, subdivision (b)
(section 473), which mandates relief from a default or default judgment when the
attorney representing the defaulting party submits an affidavit indicating that the
default was caused by the attorney’s mistake, inadvertence, surprise or neglect.
None of these cases examine the issue of whether the attorney’s conduct was
excusable, because under the mandatory relief provision of section 473, it is
irrelevant whether the neglect is excusable. (See In re Marriage of Hock &
Gordon-Hock (2000) 80 Cal.App.4th 1438, 1447 [not addressing whether
attorney’s neglect was excusable because mandatory relief was available from
default where attorney submitted affidavit of fault]; J.A.T. Entertainment, Inc. v.
Reed (1998) 62 Cal.App.4th 1485, 1492 [trial court erred in denying relief from
default under section 473 on basis that attorney’s neglect was not excusable, where
mandatory relief provision applied and thus it was irrelevant whether neglect was
excusable]; Yeap v. Leake (1997) 60 Cal.App.4th 591, 601, abrogated on other
grounds by Hossain v. Hossain (2007) 157 Cal.App.4th 454 [finding it was
irrelevant whether counsel’s calendaring error was excusable because mandatory
relief provision applied]; Avila v. Chua (1997) 57 Cal.App.4th 860, 868 [“Since we
find that the mandatory provisions [of section 473] apply, we need not consider
respondents’ arguments that counsel’s mistake was inexcusable.”]; Lorenz v.
Commercial Acceptance Ins. Co. (1995) 40 Cal.App.4th 981, 999 [trial court did
not abuse its discretion in granting relief from default judgment under mandatory
relief provision of section 473, based on attorney’s neglect; court did not examine
whether neglect was “excusable”].) Therefore, these cases do not aid Yuyao’s
contention that attorney-client miscommunications constitute “excusable
circumstances” for a witness’s unavailability.
                                          9
      Yuyao also relies on Whalen v. Superior Court (1960) 184 Cal.App.2d 598
(Whalen), in which the appellate court concluded that the trial court abused its
discretion in denying a continuance of trial due to the unavailability of the
defendant in the case. The defendant received his commission in the United States
Navy two months before the date of his trial and soon afterwards was transported
to Hong Kong. He neglected to advise his attorneys, who only learned of his
deployment five days before trial. His attorneys promptly advised the plaintiff,
who stipulated to a continuance. (Id. at p. 600.) In concluding that the trial court
abused its discretion in denying the continuance, the appellate court focused on the
fact that the defendant’s absence was involuntary and especially that he was
“absent because of duties compelled by military service to his country.” (Id. at p.
601.) Further, the plaintiff had stipulated to a continuance and thus obviously
would not be prejudiced by a continuance, and neither party previously had
requested a continuance. (Ibid.)
      Whalen does not stand for the general proposition that miscommunications
between an attorney and client resulting in a witness’s failure to appear at trial
necessarily constitute “excusable circumstances” for the witness’s unavailability at
trial. Moreover, the particular circumstances in Whalen that led the court to
conclude that a continuance should have been granted are not present here. First,
unlike the unavailable party in Whalen, who was involuntarily absent for the
scheduled trial because he was at sea serving in the Navy, Pan could have been
present had he timely applied for a visa to travel to the United States. Second, in
the instant case there was no stipulation to continue the trial, and respondents
objected to the continuance. Third, whereas no continuance previously had been
granted in Whalen, Yuyao had previously requested, and been granted, a six-month
continuance. Therefore, the circumstances were quite different.


                                          10
      To determine whether Pan’s unavailability at trial was the result of an
“excusable circumstance,” it is reasonable to borrow from the test applied under
the discretionary provision of section 473 for relief from a judgment, dismissal,
order, or other proceeding on the basis of mistake, inadvertence, or neglect.
Whether the inadvertence or neglect was on the part of the attorney or the client, to
justify discretionary relief the neglect “‘“must have been such as might have been
the act of a reasonably prudent person under the same circumstances.”’”
(Henderson v. Pacific Gas & Electric Co. (2010) 187 Cal.App.4th 215, 230; see
Zamora v. Clayborn Contracting Group, Inc. (2002) 28 Cal.4th 249, 258 (Zamora)
[“[i]n determining whether the attorney’s mistake or inadvertence was excusable,
‘the court inquires whether “a reasonably prudent person under the same or similar
circumstances” might have made the same error.”’ [Citation.]”]; see Huh v. Wang
(2007) 158 Cal.App.4th 1406, 1423.) Conduct falling below the professional
standard of care is not excusable. (Zamora, supra, 28 Cal.4th at p. 258; see Garcia
v. Hejmadi (1997) 58 Cal.App.4th 674, 682.)
      Given the circumstances here, a reasonably prudent attorney would have
confirmed with Yuyao soon after taking over the case that Pan would need to
testify at trial. Given that Slater had withdrawn as counsel due to “a complete
breakdown in attorney-client communications”, it was not prudent for Rajabov,
who succeeded Slater as counsel on December 28, 2011, to simply assume that
Slater had effectively communicated with Yuyao regarding necessary witnesses at
trial. Counsel also reasonably should have considered the necessity of travel visas
for its Chinese witnesses, and the need for early action to secure such visas in time
for trial. Thus, the trial court did not abuse its discretion in determining that the
failure of communication between Yuyao’s counsel and its client did not constitute
an “excusable circumstance” justifying Pan’s unavailability at trial and indicating
good cause for a continuance. (See Pham v. Nguyen (1997) 54 Cal.App.4th 11, 18
                                           11
[“While the unavailability of a witness is considered good cause for a continuance
. . . , the unavailability must be combined with the fact the witness has been
subpoenaed (or is beyond the reach of a subpoena and has agreed to be present),
and the witness’s absence is ‘an unavoidable emergency that counsel did not know
and could not reasonably have known at the time of the pretrial or trial setting
conference.’ [Citations.]”]; cf. Jurado v. Toys “R” Us, Inc. (1993) 12 Cal.App.4th
1615, 1618 [request for short trial continuance should have been granted due to
unavailability of non-party witnesses where plaintiff’s counsel “exercised due
diligence” by promptly serving witnesses with subpoenas and following up on
them, but where witnesses failed to respect the subpoenas].)


    III.      Additional Factors for Determining Whether to Grant Continuance
           Additionally, reviewing the factors set forth in rule 3.1332(d), we cannot
conclude that the trial court abused its discretion in denying the request for a
continuance. Yuyao did not move for a continuance until April 3, less than one
week before trial (rule 3.1332(d)(1) [the proximity of the trial date]); the court had
previously continued the trial date for seven months at Yuyao’s request (rule
3.1332(d)(2) [whether there were any prior continuances]); respondents objected to
the continuance (rule 3.1332(d)(9) [whether the parties have stipulated to
continuance]); and the trial court previously had ordered that there would be no
further continuances.1 (Rule 3.1332(d)(11) [other relevant circumstances].)
           As for the length of the continuance (rule 3.1332(d)(3)), Yuyao initially
requested a 60-day continuance, and then in its second ex parte request, requested a

1
       Although Yuyao argues that the case file it inherited from previous counsel for
Yuyao did not include the order stating that no further continuances would be granted,
prudence would dictate that new counsel review the court docket, and with respect to any
orders not contained in previous counsel’s files, obtain them from the superior court file.

                                             12
one-week continuance. However, given the court’s calendar, a one-week
continuance was not possible, and the earliest the trial could have been rescheduled
was nearly three months later. As far as prejudice to the opposing party or
witnesses if the request were granted (rule 3.1332(d)(5)), respondents argued to the
trial court that they would incur additional time and expense in trial preparation if
the trial were delayed again.2
      The trial court also focused on its tight schedule (rule 3.1332(d)(7) [the
court’s calendar and impact on other pending trials]), noting that it was only
available to conduct the trial the week of April 9, 2012, because beginning the
following week, “the court [was] scheduled to commence trial of three different
cases which have announced ready and the court [was] scheduled to be in trial
continuously thereafter until the first week of July 2012, with perhaps a few one or
two day periods between trials.”
      Yuyao contends that the court placed too much emphasis on the impact of a
continuance on the court’s calendar. (Rule 3.1332(c)(1).) Yuyao relies on
Oliveros v. County of Los Angeles (2004) 120 Cal.App.4th 1389 (Oliveros), in
which the appellate court found that the trial court abused its discretion in denying
a continuance. There, trial counsel for the defendant was engaged in another trial.
Because the defendant had no one to represent it at trial, a directed judgment was
entered in plaintiffs’ favor. (Oliveros, supra, 120 Cal.App.4th at pp. 1393-1394.)
The appellate court found that “[d]ue to a series of circumstances beyond his
immediate control, the [defendant’s] lawyer found himself engaged in trial in
another courtroom on July 9, the trial date in this case. He sought a continuance,


2
       There were no apparent “alternative means to address the problem that gave rise to
the motion or application for a continuance” (rule 3.1332(d)(4)), no entitlement to a
preferential trial setting (rule 3.1332(d)(6)), and no indication that trial counsel were
engaged in another trial (rule 3.1332(d)(8)).
                                           13
not because he was unprepared for trial, or because he sought a technical
advantage by delaying trial, or for any other suspect reason. Rather, he was
ordered to trial in another courtroom, and he could not be in two places at one
time.” (Id. at p. 1400.) Thus, the appellate court found there was good cause for
the requested continuance. Moreover, the court found that the trial court had erred
in solely considering the impact of a continuance on the court’s calendar: “While
this is a valid factor to be weighed with the other facts and circumstances
presented, it cannot be the be-all and end-all. The court’s failure to carefully
balance all of the competing interests at stake, guided by the strong public policy in
favor of deciding cases on the merits, constituted an abuse of discretion.” (Id. at p.
1399.)
      Oliveros recognized that where a lack of diligence led to the need for a
continuance, the request need not be granted. (See Oliveros, supra, 120
Cal.App.4th at p. 1396 [“‘“absent [a lack of diligence or other abusive]
circumstances which are not present in this case, a request for a continuance
supported by a showing of good cause usually ought to be granted.” [Citation.]’”)
Thus, Oliveros merely stands for the proposition that when good cause has been
shown for a continuance, the court’s calendar should not be the only factor that
leads a court to deny the request for a continuance.
      Oliveros, therefore, does not aid Yuyao. As discussed above, Yuyao did not
exercise sufficient diligence to arrange Pan’s presence at trial, and thus good cause
for a continuance was not present. Moreover, it is not the case that the trial court
focused solely on the impact on its calendar in denying the request. Rather, in
addition to finding insufficient diligence on Yuyao’s part to secure Pan’s presence
at trial, the court expressly took into account the previous lengthy continuance
granted at Yuyao’s request and the court’s earlier order that no additional
continuance would be granted. Further, the other factors under rule 3.1332,
                                          14
although not expressly relied upon by the trial court, favor the decision not to grant
a continuance. We therefore reject Yuyao’s argument that the trial court placed
undue weight on the impact a continuance would have on its calendar.
      The remaining consideration is whether the “interests of justice” would best
be served by a continuance, by proceeding to trial as scheduled, or by imposing
conditions on the continuance. (Rule 3.1332(d)(10).) Yuyao contends that the
court’s denial of a continuance effectively prevented Yuyao from presenting its
case, because Pan was the company’s only witness, and its counsel had no choice
but to try to present its case through an obstreperous adverse witness, Miao, who
refused to authenticate key documents and provided largely nonresponsive
testimony. Yuyao contends that the trial court failed to consider that its denial of
the continuance effectively amounted to terminating sanctions. (See Oliveros,
supra, 120 Cal.App.4th at p. 1399 [holding that trial court’s decision to deny
continuance that left party without representation at trial was tantamount to a
terminating sanction].)
      Yuyao asserts the existence of a general principle that when a party’s only
witness is temporarily unavailable, a continuance must be granted. However, in
the cases he cites for support, the crucial importance of the witness was merely one
factor considered in concluding that a continuance should have been granted, and
in all of them, excusable circumstances for the witness’s absence were shown.
      For instance, in Carl v. Thomas (1931) 116 Cal.App. 294, the appellate court
held that the trial court abused its discretion in failing to grant a continuance of a
trial date when the defendant, a member of the Coast Guard, was at sea and thus
unavailable for trial. In that case, while the defendant was at sea, the defendant’s
counsel timely sent a letter to the defendant advising him of the trial date that had
just been set, but the defendant never received the letter. (Id. at p. 296.) The court
concluded that “[n]either counsel nor defendant was in any way at fault for
                                           15
defendant’s failure to appear. Timely notice had been sent by counsel, defendant
had arranged his leave of absence to fit this particular period, and we must
conclude, on the showing made, that the defendant would have been on hand for
the trial, if he had received the letter referred to.” (Id. at p. 300.) Given that the
defendant was the only person on the defense side with personal knowledge of a
number of the facts, and given the lack of prejudice to the plaintiffs, the court held
that the trial court erred in denying the continuance. (Id. at p. 301; see also Pacific
Gas & Electric Co. v. Taylor (1921) 52 Cal.App. 307, 308 [continuance should
have been granted where key witness could not attend scheduled trial due to
illness]; Betts Spring Co. v. Jardine Machinery Co. (1914) 23 Cal.App. 705, 706
[continuance should have been granted where the defendant, who was the only
witness who could prove his defense, was ill and “in search of health had
journeyed to Europe” at the time of trial].) Thus, these cases do not support the
notion that a continuance is always warranted when a key witness is unavailable,
regardless of the circumstances leading to the unavailability.
      Moreover, Yuyao ignores contrary authority holding that a continuance is
not necessarily required even if a party’s ability to present its case will be
compromised if the continuance is denied. (See People v. Howard (1992) 1
Cal.4th 1132, 1171–1172 [depending on the circumstances, a denial of a
continuance does not necessarily constitute an abuse of discretion even if the party
is unable to offer evidence or be represented by counsel]; Whalen, supra, 184
Cal.App.2d at p. 600 [holding that “[t]he 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.”].) Even
accepting Yuyao’s contention that it was unable to fully present its case at trial due
                                           16
to Pan’s absence, we cannot concluded that the “interests of justice” required the
trial court in this case to grant a continuance, despite the lack of good cause shown
and the other circumstances that supported the denial of the continuance.
      In sum, the trial court did not abuse its discretion in denying Yuyao’s
requests for a trial continuance.


                                    DISPOSITION
             The judgment is affirmed. Yuyao to bear costs on appeal.
             NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                                              WILLHITE, Acting P. J.




             We concur:




             MANELLA, J.




             SUZUKAWA, J.




                                         17
