GRIMES, J.
Plaintiff and appellant Thomas McGann (McGann) brought an action against his employer, defendant and respondent United Parcel Service, Inc. (UPS), seeking recovery of unpaid overtime compensation and related claims.
During voir dire examination, a prospective juror expressed her concern that the plaintiff would not be in attendance at his own trial, but she also stated she could follow the court's instruction that his absence was not to be considered. McGann asked the court to discharge the prospective juror for cause, which the court denied. McGann chose not to use his last peremptory challenge to excuse the juror. After presentation of evidence, including excerpts of McGann's deposition testimony, the jury returned a verdict in favor of UPS.
McGann appeals, contending the orders denying a trial continuance and refusing to discharge the prospective juror constituted error.
McGann worked for UPS for a number of years, including as an On Road Supervisor from 2000 to 2005. He routinely worked in excess of eight hours per day and often skipped meal and rest periods due to the press of his work duties. Because his position was classified as exempt, McGann did not receive overtime compensation or the other benefits accorded nonexempt employees under California law. McGann filed a complaint against UPS stating six causes of action based on his alleged misclassification as exempt. He sought compensation for unpaid overtime and statutory penalties and wages for missed meal and rest breaks. The trial court disposed of five of McGann's causes of action in favor of UPS by way of pretrial motions, leaving only the first cause of action for unpaid overtime compensation to proceed to trial.
On the first day of trial, McGann presented an ex parte application requesting a continuance of the trial date because of temporary mental disability. UPS opposed the request. After hearing argument, the trial court denied the application. The parties began voir dire examination of the prospective jurors in McGann's absence. Pursuant to stipulation of the parties, the court told the panel of jurors that McGann was unavailable for the duration of the trial and the jury was to draw no inference from his absence.
The court examined each juror at some length and then permitted extensive questioning by trial counsel. McGann's counsel asked if any juror would find it difficult to be fair to McGann since he was not present at trial. Prospective Juror No. 11 asked why the jury was not offered an explanation for McGann's absence. The court responded, "Basically, it's legally irrelevant. Parties in lawsuits can come and go as they please. It's not like a criminal case, and they have the right to come and go as they choose. And the parties have stipulated as we've instructed. So it's not relevant to your consideration of the historical facts that you'll be dealing with." Prospective Juror No. 11 replied, "Okay. Thanks."
Counsel for McGann then asked the panel, in light of the judge's explanation, whether anyone would hold against McGann his absence from trial. Only prospective Juror No. 3 responded, stating he believed it would be better to hear testimony from the parties. Prospective Juror No. 3, who had previously disclosed that he was a civil litigator with 30 years experience, said he assumed he would hear live testimony. The court replied, "That's not true. It's likely you will hear his testimony in the course of his trial. [¶] . . . [¶] . . . As a lawyer, you should know that there's other ways for testimony to come in, and for you lay people, you'll learn about that." Prospective Juror No. 3 then said, "I'm with you." McGann's counsel asked if anyone else thought it might be difficult to be fair in McGann's absence and noted there was no show of hands.
Voir dire continued on a significant range of other issues. Late in defense counsel's questioning, prospective Juror No. 16 (also referred to in the record as Juror A.)
Trial proceeded in McGann's absence. The evidence included lengthy excerpts from McGann's deposition, along with a redacted portion of his declaration submitted in opposition to UPS's summary judgment motion. McGann chose not to call any of his 13 listed trial witnesses. During deliberations, two jurors were excused, and Juror A. was seated on the jury that delivered the verdict in favor of UPS. This appeal followed.
McGann contends the court abused its discretion in refusing to grant his request for a continuance based on his unavailability to attend trial. We disagree. The grant or denial of a request to continue trial is "committed to the sound discretion of the trial court." (Forthmann v. Boyer (2002) 97 Cal.App.4th 977, 984.) Moreover, "`"[a]buse of discretion is never presumed. It must be affirmatively established. A reviewing court is not authorized to revise the lower court's judgment even if it should be of the opinion that it would have made a different award had the matter been submitted to its judgment in the first instance, in the absence of a clear abuse of discretion."' [Citation.] `The discretion was the trial judge's, not ours; and we can only interfere if we find that under all the evidence, viewed most favorably in support of the trial court's action, no judge could reasonably have made the order that he [or she] did.' [Citations.]" (Smith v. Smith (1969) 1 Cal.App.3d 952, 958.) Plainly, the trial court did not abuse its discretion in denying McGann's eleventh hour, inadequately supported motion to continue trial.
Continuances are to be granted sparingly and only upon an affirmative showing of good cause. (In re Marriage of Hoffmeister (1984) 161 Cal.App.3d 1163, 1169; Cal. Rules of Court, rule 3.1332 [to ensure "prompt disposition of civil cases, the dates assigned for a trial are firm"]; see also Gov. Code, § 68607, subds. (f), (g).) Unavailability of a party is enumerated in California Rules of Court, rule 3.1332(c) as one of the specific grounds upon which good cause may be established. However, "[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." (Whalen v. Superior Court (1960) 184 Cal.App.2d 598, 600; see also Kalmus v. Kalmus (1951) 103 Cal.App.2d 405, 413-414, disapproved on other grounds as stated in Hudson v. Hudson (1959) 52 Cal.2d 735 [insufficient evidence of party's claim of medical disability preventing ability to fly to California to attend trial].)
Further, California Rules of Court, rule 3.1332 sets forth the additional factors that may be considered in ruling on a request for a continuance. "[T]he court must consider all the facts and circumstances that are relevant to the determination. These may include: [¶] (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; [¶] . . . [¶] (7) The court's calendar and the impact of granting a continuance on other pending trials; [¶] . . . [¶] (9) Whether all parties have stipulated to a 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." (Cal. Rules of Court, rule 3.1332(d), italics added.) In this case, the trial court properly considered all relevant factors in ruling on McGann's request.
McGann's complaint was filed August 1, 2008. Trial was originally set in late July 2009, but was continued to September 8, 2009. The court ordered the first continuance due to the number of witnesses each side intended to call, which would not have allowed the trial to be timely completed given competing scheduling issues confronting the court at that time. On September 4, 2009, the Friday before the trial was set to begin, McGann's counsel received a faxed letter from McGann's psychiatrist, Dr. Mariusz Wirga, which stated: "Mr. McGann is currently temporarily totally disabled until October 1, 2009. At this time he is not mentally stable to testify in court." No other supporting information was set forth in the letter.
In response, McGann's counsel prepared an ex parte application, giving notice over the Labor Day holiday weekend, and filed it on Tuesday, September 8, 2009, the morning trial was to begin. The application requested a "brief" continuance in light of McGann's unavailability due to illness or temporary disability. Counsel's supporting declaration explained that, on August 27, 2009, McGann had told him he was going out on disability leave from his job at UPS. However, he further stated that the letter of September 4 from the psychiatrist was the first time he was aware that McGann had been diagnosed as suffering from a mental disability that would affect his capacity to testify and that further details could be provided in camera to the court to protect McGann's confidentiality. Counsel's declaration also stated that because there had never been a concern that McGann would not be present at trial, his deposition had proceeded with questioning only by defense counsel and therefore was incomplete and was not a sufficient substitute at trial for live testimony.
During argument, McGann's counsel stated on the record he was advised McGann was suffering from a panic disorder and had started new medication in an attempt to control it. In response to a comment from the court finding "unusual" the psychiatrist's ability to pinpoint the date the mental disability would resolve, counsel explained he had been informed by the psychiatrist that by October 1, McGann would have completed a 30-day trial of the new medication that might alleviate his symptoms sufficiently to enable him to testify at trial. The court also inquired of counsel, given the lack of information in the doctor's letter, why this was not simply a litigant suffering ordinary stress at having to start trial. McGann's counsel replied that he believed the triggering event was stress at McGann's job arising from a change in his job position and a new manager. There was no declaration attesting to these facts in the application.
UPS opposed the continuance, arguing primarily that it had already scheduled and subpoenaed witnesses to be available to testify and had paid witness fees, including the purchase of airfare for individuals having to come in from Atlanta for trial.
The trial court found McGann's showing of good cause insufficient, noting it was "a very sparse and odd record." In denying the application for a continuance, the court explained the basis for its ruling as follows: the psychiatrist's letter opining McGann was "temporarily totally disabled," with no supporting facts or explanation, was not persuasive or reliable; the case was more than a year old and involved factual issues going back nine years, such that a further continuance increased the risk of witnesses' memories fading; the action was already continued once to accommodate both parties' desire to call numerous witnesses; the court's trial docket was such that the soonest the case could be reset for trial was in seven months; and there was extensive deposition and declaration testimony from McGann that could be offered into evidence in lieu of his live testimony. The court stated sound reasons for the denial of the motion to continue trial pursuant to California Rules of Court, rule 3.1332, and we cannot say no other judge would deny the request for continuance when faced with such a factually inadequate basis for the claim of McGann's "temporary mental disability" to attend trial.
Despite McGann's argument to the contrary, this case is not like Oliveros v. County of Los Angeles (2004) 120 Cal.App.4th 1389. There, the court's denial of a trial continuance was reversed because the court failed to weigh the various relevant factors and focused, improperly, on just one issue: judicial efficiency. "[T]he judge's reported comments suggest that the only factor he took into consideration, and which became the decisive factor in his ruling, was the impact of a continuance on the court's calendar." (Id. at p. 1399.) The denial of the continuance operated to leave the defendant without counsel in a complex medical malpractice action where trial preparation had taken months and multiple percipient and expert witnesses were scheduled to testify (trial counsel having been unexpectedly required to start trial in another department). The failure of the trial court to consider all relevant factors, including prejudice to the parties, was properly deemed error. In contrast, the trial court's order here shows the court considered multiple pertinent factors in arriving at its decision, including McGann's weak showing of unavailability, the age of the case, the prior continuance, the potential loss of evidence by further delay, prejudice to UPS, and the availability of alternative forms of receiving McGann's testimony in his absence.
There is also no showing the denial of McGann's request for a continuance was tantamount to a denial of a fair trial. McGann contends he was deprived of a fair trial because he was the key material witness on the issue of his job duties and the appropriateness of his classification as exempt. He contends that by being limited to excerpts from his deposition and his opposing summary judgment declaration, he was unable to present all of his testimony establishing his misclassification and was also deprived of the ability to rebut UPS's evidence.
However, the record reflects McGann testified at length in multiple, videotaped deposition sessions, with questioning by defense counsel focused on the key issue in the case, namely his job duties and how they correlated with the elements of the exemption defenses raised by UPS. McGann's counsel did not examine him at deposition. We recognize that a party's testimony elicited from questioning by his own counsel is more likely to be tailored toward the version of the disputed facts that the party asserts to be true, as compared with testimony obtained through cross-examination alone. However, it does not follow that testimony elicited on cross-examination is necessarily insufficient to allow for a fair resolution of disputed issues.
Moreover, McGann was able to have the majority of his opposing summary judgment declaration read into the record. Given the potential for a summary judgment motion to dispose of an action on the merits, McGann had every incentive to be detailed and clear in his declaration in order to attempt to defeat UPS's motion. As such, it is not reasonable to infer his declaration testimony was somehow bereft of material facts in his favor. The record reflects no explanation for McGann's decision not to call any of his 13 listed trial witnesses in corroboration or why he chose to have the majority of his deposition testimony read into the record instead of allowing the jury to view the complete videotapes and assess his demeanor and credibility along with his substantive responses. Whatever the reason, the record establishes McGann had an opportunity to present material evidence in support of his claim, despite his physical absence, and his absence at trial did not deprive him of a fair trial.
McGann's argument the trial court abused its discretion in refusing to discharge Juror A. is two-fold. McGann contends Juror A. exhibited actual bias and an inability to be impartial toward him and also that the court "poisoned" the entire venire, including Juror A., by making a comment during voir dire implying that McGann was simply choosing not to attend his own trial. We find McGann's arguments are not persuasive, and there was no abuse of discretion.
"The conclusion of a trial judge on the question of individual juror bias and prejudice is entitled to great deference and is reversed on appeal only upon a clear showing of abuse of discretion." (People v. Martinez (1991) 228 Cal.App.3d 1456, 1466.) "`"[A]ppellate courts recognize that a trial judge who observes and speaks with a prospective juror and hears that person's responses (noting, among other things, the person's tone of voice, apparent level of confidence, and demeanor), gleans valuable information that simply does not appear on the record." [Citation.]' [Citation.]" (People v. Bramit (2009) 46 Cal.4th 1221, 1235.) Further, "`[W]e will uphold the trial court's ruling if it is fairly supported by the record, accepting as binding the trial court's determination as to the prospective juror's true state of mind when the prospective juror has made statements that are conflicting or ambiguous.' [Citation.]" (People v. Thornton (2007) 41 Cal.4th 391, 414.)
At the beginning of the voir dire process, the court advised the prospective jurors the parties had stipulated McGann was unavailable for the duration of the trial, but the jury was to draw no inference one way or the other from his absence. During questioning by McGann's counsel, prospective Juror No. 11 asked if there was any reason the jury panel could not be told why McGann would not be in attendance. The court responded: "Basically, it's legally irrelevant. Parties in lawsuits can come and go as they please. It's not like a criminal case, and they have the right to come and go as they choose. And the parties have stipulated as we've instructed. So it's not relevant to your consideration of the historical facts that you'll be dealing with." We reject McGann's argument that this brief and bland comment by the court instilled bias among the panelists against McGann. Not only was the comment accurate and neutral, we find no reason to conclude it may have biased the jury, because when asked point-blank whether McGann's absence was a problem, no juror expressed an inability to be fair.
McGann misstates the record in arguing further that Juror A. was indisputably prejudiced against McGann because she twice stated she was "troubled by" or had "problems with" his absence at trial. Juror A. said no such things, and no such bias may be reasonably inferred from the statements she actually made. Juror A. said McGann's absence was an issue that bothered her, and she would prefer that McGann appeared at his own trial. Defense counsel, who was questioning the panel at that time, asked Juror A. if she could give McGann a "fair shot," given the court's instruction that his absence should not be considered. She initially answered "I don't know that." The court then inquired why she might treat that instruction on the law differently than any other instruction given to the jury. The following colloquy ensued:
Later, during follow-up questioning by McGann's counsel, Juror A. stated: "Again, I still would prefer if he was here, from the way the judge explained it." McGann challenged Juror A. for cause based on these comments. A challenge for cause may be made to an individual juror based on actual bias which is defined as "the existence of a state of mind on the part of the juror in reference to the case, or to any of the parties, which will prevent the juror from acting with entire impartiality, and without prejudice to the substantial rights of any party." (Code Civ. Proc., § 225, subd. (b)(1)(C).) Such a challenge "should be sustained when the juror's views would `prevent or substantially impair' the performance of his or her duties as a juror in accordance with the instructions and oath. [Citations.]" (People v. Mincey (1992) 2 Cal.4th 408, 456.)
The court denied McGann's challenge for cause, explaining: "She said she would still prefer that he was going to be here, but she would follow the court's instructions. And one of the instructions I gave, and I'll repeat it, certainly, at a later time in this trial, is that the jury should not hold it against either side or be biased in any way because he is not here at trial. [¶] So again, she struck me as a very intelligent and thoughtful juror who candidly responded to questions about her preference, but ultimately said that she could follow the law as the court gave it to her and the other jurors." There is nothing in the record supporting a conclusion that Juror A. was substantially impaired or otherwise unable to be impartial. Though she found it inappropriate for McGann to absent himself from his own trial without an explanation justifying his absence, she denied that view would prevent her being fair and or interfere with her ability to follow the court's instructions. We defer to the trial court's well-articulated conclusion that Juror A. was candid, intelligent, and thoughtful and could be trusted to discharge her duties without bias and in conformance with the law. (People v. Thornton, supra, 41 Cal.4th 391.) Moreover, we presume Juror A. followed the court's instructions to act as an impartial juror. (Rufo v. Simpson (2001) 86 Cal.App.4th 573, 598-599 [jurors presumed to follow court's instructions].)
The trial court's orders of September 8, 2009, denying McGann's request for a continuance of trial and his request to discharge Juror A. are affirmed. Respondent shall recover its costs on appeal.
WE CONCUR:
BIGELOW, P. J.
FLIER, J.
