Need and Prejudice: An Eleventh-Hour Trial Continuance Where A Key Witness Is Unexpectedly Unavailable

In Padda v. Superior Court (GI Excellence), No. E070522, the Court of Appeal, Fourth Appellate District, Division Two, recently held that a trial court abused its discretion in denying Defendants/Cross-Complainants’ request for a trial continuance where their key expert witness suddenly became ill twelve days before trial and before his deposition had been taken.

The case arose from an employment-related contract dispute between two Gastroenterologists (hereafter “Petitioners”) and Plaintiff/Cross-Defendant, GI Excellence (hereafter “Respondent”). Each side designated gastroenterology experts to opine as to the intricacies of gastroenterology medical and business practices.

The litigation had been proceeding for about four years and there had been at least four trial continuances prior to the scheduled trial date of May 21, 2018. On May 9, 2018, Defendants’ expert, Dr. Corlin, felt a sharp pain in his side and saw Urologist, Dr. Linehan, who determined that he had a hemorrhagic cyst affecting the kidney and pancreas requiring aspiration and re-evaluation. Dr. Linehan advised Dr. Corlin and the court that he should not participate in the trial or be deposed and the anticipated recovery time was six weeks.

On May 14, 2018, Petitioners filed an ex parte application to continue trial supported by a declaration regarding Dr. Corlin’s medical status and the nature and importance of his testimony to both their defense and their case-in-chief on the cross-complaint. The trial court denied the application based on concerns over the impact of patients being treated by physician parties and witnesses and scheduling difficulties in continuing the trial, as well as the age of the case and prior continuances. Petitioners filed a writ requesting relief from this decision and Respondent did not file a formal opposition.

In its decision, the Court of Appeal noted that a court may require a party moving for a trial continuance, based on the absence of a material witness, to state the evidence expected from that party. However, the trial must not be continued if the adverse party admits that the witness’ evidence should be considered as actually given at trial, or if it is offered and overruled as improper. In Padda, Respondent did not admit the content of Dr. Corlin’s expected testimony. Accordingly, the Court issued a writ of mandate directing the Superior Court to vacate its order denying Petitioners’ ex parte application for a trial continuance and grant the continuance based on well-settled law that it is a reversible abuse of discretion to deny a request for trial continuance where a witness is unavailable due to illness and there is no intimation of bad faith or prejudice to any party by reason of a brief delay.

The Padda holding emphasizes the importance of immediately notifying the court of any eleventh-hour unavailability of a key witness at trial. Any motion or ex parte application must not only include the reason the witness has suddenly become unavailable, but also the evidence the witness is anticipated to present. The court should also consider whether the evidence has already been presented and determined admissible or improper.

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July 10, 2018