Rezendes v. Naeni

Filed 10/6/06 Rezendes v. Naeni CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from a judgment of the Superior Court of Fresno County. Alan M. Simpson, Judge.

Dooley, Herr & Peltzer, and Leonard C. Herr, for Plaintiff and Appellant.

Galloway, Lucchese, Everson & Picchi, and Patricia A. Timm, for Defendants and Respondents.

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Appellant Robert Rezendes appeals from a judgment of nonsuit in his action for medical malpractice against respondents Fariborz Naeni, M.D. and Jayfar Tay, M.D. On the first day of trial, the court denied appellant’s motion to continue and granted two of respondents’ motions in limine. Those rulings effectively precluded appellant from presenting the evidence necessary to establish breach of the standard of care and causation. Appellant conceded he was unable to prove his case and the court granted respondents’ motion for nonsuit. On appeal, appellant contends the court abused its discretion in denying him a short continuance to secure the attendance of a necessary witness. We will affirm.

FACTS AND PROCEDURAL HISTORY

Rezendes severely injured his leg in a traffic accident in March 2000. Doctors Naeni and Tay treated him initially. Dr. Cary Tanner treated him several months later. According to Rezendes’s attorney, Leonard Herr, Dr. Tanner referred Rezendes to his law office and told a paralegal in Herr’s office “about the malpractice.”

However, during discovery neither Dr. Tanner nor Dr. Michael Klassen, an orthopedic surgeon and appellant’s only retained expert, provided the necessary opinion evidence regarding negligent treatment and causation. During Dr. Tanner’s deposition in January 2005, he was asked whether he recalled having criticized the treatment Mr. Rezendes received prior to seeing him or whether he had formed an opinion about the treatment provided by Drs. Naeni and Tay. Dr. Tanner responded that he did not recall doing so. Dr. Klassen testified at his deposition that he lacked sufficient information to form an opinion as to whether Dr. Naeni or Dr. Tay violated the standard of care. The records Mr. Rezendes provided to him were incomplete and did not reveal with any specificity what role those physicians played in Mr. Rezendes’s medical care.

Trial was set for Monday, September 19, 2005. Mr. Herr learned on Friday, September 16 at 3:30 p.m. that Dr. Tanner was unavailable for trial the next week. At the onset of trial, Mr. Herr requested a short continuance to enable Dr. Tanner to appear. Mr. Herr candidly admitted that Dr. Tanner had not provided any opinion testimony to establish the necessary elements of Mr. Rezendes’s case. Nevertheless, Mr. Herr was “hopeful” that, when he refreshed Dr. Tanner’s recollection at trial, Dr. Tanner would recall the earlier opinion he expressed to Mr. Herr’s paralegal that there had been malpractice. Respondents objected to the continuance.

With the parties’ consent, the court read Dr Tanner’s and Dr. Klassen’s deposition testimony before denying the continuance. The court then granted two motions in limine that limited expert opinion to the opinions expressed at deposition and barred Rezendes from offering expert testimony based on newly acquired information. As a result of those rulings, Rezendes told the court he could not establish breach of the standard of care or causation. Respondents moved for nonsuit and the court granted the motion.

DISCUSSION

1. The court did not abuse its discretion in denying a continuance.

To ensure the prompt disposition of civil cases, the dates assigned for a trial are firm. Although trial continuances are disfavored, each continuance request must be considered on its own merits. The court may grant a continuance only on an affirmative showing of good cause. Circumstances that may indicate good cause include the unavailability of an essential witness because of excusable circumstances. (Cal. Rules of Court, rule 375(a), (b), (c)(1).) In ruling on a motion to continue trial, factors the court considers include, among other things, the proximity of the trial date, the prejudice that parties or witnesses will suffer as a result of the continuance, whether the interests of justice are best served by a continuance, and any other fact or circumstance relevant to the fair determination of the motion. (Cal. Rules of Court, rule 375(d).)

A motion to continue is addressed to the sound discretion of the trial court. (Oliveros v. County of Los Angeles (2004) 120 Cal.App.4th 1389, 1395.) That discretion, however, must be exercised with due regard to all interests involved. The denial of a continuance that has the practical effect of denying the applicant a fair hearing is reversible error. (Ibid.)

Here, there is no showing that denying the continuance deprived Rezendes of a fair hearing. Rather, this case is similar to Johnson v. Fassett (1955) 132 Cal.App.2d 871 where the court found no abuse of discretion in denying the plaintiffs’ motion for a continuance on the ground that their only expert medical witness was unavailable. Nothing in the record showed that the witness would have qualified as an expert, that he had agreed to testify in the case, or that his testimony would be material to the issues involved. (Id. at p. 873.) Likewise, in Johnston v. Johnston (1941) 48 Cal.App.2d 23,

the court did not abuse its discretion by refusing to continue the trial merely on the assertion of one party that she might be able to discover evidence favorable to her. (Id. at p. 26.)

In this case, Mr. Herr requested the continuance on the ground that he hoped through his line of questioning to refresh Dr. Tanner’s recollection of criticisms he expressed of respondents. There was no offer as to what these criticisms were or to which respondent they referred. Moreover, Dr. Tanner had testified at his deposition nine months earlier that he did not recall having or expressing criticisms of respondents. Mr. Herr’s optimism that Dr. Tanner would recall these criticisms was too speculative a ground on which to continue the trial. Moreover, delaying the trial would prejudice respondents. Both physicians had retained expert witnesses in anticipation of trial commencing that day. Both had heavy practices and had scheduled themselves to be away from their medical offices that week for trial. Dr. Naeni was one of only two attending orthopedic trauma surgeons at UMC. And Dr. Tay, who had been a resident when Rezendes was treated, was establishing his practice in San Jose. A continuance would present a financial hardship to him.

Under the circumstances, the court did not abuse its discretion in denying the motion to continue the trial.

DISPOSITION

The judgment is affirmed.

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^* Before Vartabedian, Acting P.J., Harris, J., and Gomes, J.