NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
GRIMES, J.
Defendant and cross-complainant Joel Abergel (defendant) appeals from the judgment entered against him after a court trial and the court's later denial of his motion for new trial. The judgment rested on the trial court's finding that a written lease of a yacht had been breached, and defendant breached his personal guaranty of the lease payments. The only argument defendant asserts on appeal is that the court erred in deciding the case without having heard the testimony of two defense witnesses, who, defense counsel represented, were not present in court to testify on the day of trial. We conclude the court acted well within its discretion in determining the case was submitted for decision on the record of proceedings that took place on the day set for trial, and we affirm the judgment.
BACKGROUND
Several months before trial, in mid-December 2009, counsel for plaintiff and respondent Sport Automobile Brokerage Corporation (plaintiff) had filed and served notice of the dates set for trial, final status conference and mediation. The notice stated that trial was set for August 9, 2010. Nothing in the record suggests that any party ever made a motion to continue the trial before the date set for trial. The case was duly called for a court trial on August 9, 2010, at 9:50 a.m. The court asked plaintiff to call its first witness. Plaintiff's counsel replied that he had planned to call defendant as the first witness but defendant was not in court. When asked if defendant was going to show up for trial, defendant's counsel replied, "So far not." Defendant's counsel then made a motion to exclude nonparty witnesses, which was granted. The only nonparty witness who was excluded from the courtroom was Eileen Yates, defendant's fiancée, who was a defense witness.
Plaintiff proceeded to offer into evidence designated portions of defendant's deposition testimony, since defendant was not present to give live testimony. Plaintiff then called a witness to the stand who testified on direct examination until noon, when the court took its lunch break. Trial resumed promptly in accordance with the usual trial schedule; the witness resumed testimony on the record at 1:35 p.m. Defense counsel cross-examined the witness at some length. After a brief redirect examination, defense counsel was permitted further cross-examination. Plaintiff called its next witness, whom defense counsel also cross-examined. Plaintiff called another witness, whom defense counsel cross-examined both before and after a 15-minute break to relieve the court reporter. Defense counsel was permitted to examine this witness concerning exhibits that defendant had not identified as trial exhibits before trial. After redirect examination of this witness, defense counsel was permitted further cross-examination.
Plaintiff then rested, and the court asked defense counsel if he wished to call any witnesses. Defense counsel's only reply was that he wanted to make a motion first. Defense counsel argued at some length in support of a motion for judgment pursuant to Code of Civil Procedure section 631.8. The court heard argument in opposition to the motion for judgment, as well as further argument from defense counsel. The court denied the motion and again asked defense counsel if he wished to call any witnesses. Defense counsel replied, "I don't have anybody here today, your honor." The court inquired if any other party wished to call further witnesses, was told there were no more witnesses, and the court asked, "I presume, then, there is no rebuttal testimony?" Defense counsel then said, for the first time during trial, "I have witnesses for tomorrow. I don't have them here today." The court asked why defense counsel did not have his witnesses in court that day, and defense counsel said he had assumed the court would recess for the day, since it was 4:10 p.m.
Defense counsel elaborated, explaining that he had two witnesses he would have presented in the defense case, "and they are not here now but they will be here tomorrow." The court asked defense counsel who his witnesses were, and defense counsel identified Mr. Abergel, the named defendant, whose deposition testimony plaintiff had offered in evidence, and Eileen Yates, the defense witness who had been present but had been excluded from the courtroom at the outset of trial on defense counsel's own motion. The court replied, "Mr. Teitelbaum, today is the day for trial. It is 4:10 in the afternoon, and this is the first time I have been told that the defense has witnesses who were unavailable to be here today, and I am going to act on this case today. Today was the trial date and we do not have any evidence on behalf of the defendant/cross-complainant."
Defense counsel's only further response was that the case was "presented as a two-day trial." (There is nothing in the record to explain this statement of counsel, other than his own statement during closing argument that "[i]t was never set for a one-day trial.") Defense counsel also asserted that it would be "unreasonable" to preclude the defense witnesses from testifying the next day. The court ordered entry of judgment against defendant, observing that the court viewed defense counsel's request as essentially a motion to continue the trial that was made without good cause, because the defense should have been prepared to present its case on the date set for trial.
Judgment was entered against defendant on the complaint and his cross-complaint. Plaintiff gave notice of entry of judgment for plaintiff. Defendant gave notice of his intention to move for a new trial, and the court duly gave notice to all parties that the hearing on the motion for new trial was set for October 8, 2010. Defendant's motion for new trial made no reference to Code of Civil Procedure section 657, despite the well-established authority that the exclusive grounds for new trial are those listed in section 657, and a new trial may only be granted on one or more of the enumerated statutory bases. (Fomco, Inc. v. Joe Maggio, Inc. (1961) 55 Cal.2d 162, 166.)
The only legal authority cited in support of defendant's motion for new trial was Code of Civil Procedure section 473, which permits a motion for relief from default. Defense counsel, Mr. Teitelbaum, supported the motion with a declaration stating, in substance, that the two defense witnesses were not present in court due to his own fault, because he had told his client that he need not be in court since it was 4:10 p.m.; he did not realize that defendant was only 15 minutes away from court, or that Ms. Yates was sitting right outside the courtroom; and his behavior was due to mistake and was excusable. In opposition, plaintiff argued the mandatory provisions of Code of Civil Procedure section 473, subdivision (b) did not apply, and there was no basis to grant discretionary relief because defendant made a strategic decision not to attend trial, and it was inexcusable to fail to call Ms. Yates, who had been sitting outside the courtroom all day. Plaintiff also offered declarations from witnesses who saw defendant near the courthouse parking lot when they left court after trial, as support for the argument that defendant's absence from court was a calculated risk, and was not due to error, mistake or excusable neglect. The trial court denied the motion for new trial.
DISCUSSION
An order denying a motion for new trial is reviewable on appeal from the judgment. (Walker v. Los Angeles Metropolitan Transportation Authority (2005) 35 Cal.4th 15, 18). Defendant does not contend the judgment is unsupported by substantial evidence. The prevailing parties in whose favor judgment was entered argue at some length that substantial evidence supported the judgment. Since defendant does not challenge the sufficiency of the evidence to support the judgment, we deem that issue waived and assume for purposes of this opinion that substantial evidence supports the judgment.
The trial judge has "a wide discretion" in ruling on a new trial motion, and on appeal we give "great deference" to its exercise of that discretion. (City of Los Angeles v. Decker (1977) 18 Cal.3d 860, 871-872.) "An abuse of discretion occurs if, in light of the applicable law and considering all of the relevant circumstances, the court's decision exceeds the bounds of reason and results in a miscarriage of justice." (Fassberg Construction Co. v. Housing Authority of City of Los Angeles (2007) 152 Cal.App.4th 720, 752.) The trial court here acted well within reason and caused no miscarriage of justice.
The trial court correctly found the provisions of Code of Civil Procedure section 473 (hereafter section 473) did not apply and provided no basis for granting a new trial. As the trial court correctly observed at the hearing on the motion for new trial, "[T]here was no default that was entered. There was no dismissal. There was a finding by the court that the evidence was closed and was in." We will address only briefly section 473, and only because counsel have focused their arguments on that statute, both in the trial court and on appeal.
There is authority that section 473 may provide relief under circumstances that are determined to be the procedural equivalent of a default. The courts that so hold reason that, where there is no hearing on the merits, an attorney's neglect should not prevent the party from having his or her day in court. Even under this line of authority, section 473 does not apply where the party has had an opportunity to have his or her day in court and has contested the judgment. (In re Marriage of Hock & Gordon-Hock (2000) 80 Cal.App.4th 1438, 1443-1444.) Here, defendant appeared through his counsel, who examined witnesses, offered exhibits into evidence, argued the applicable law, and in all other respects, participated in a day-long court trial. Manifestly, defendant was not deprived of his day in court. Rather, as his counsel conceded, defendant made a strategic decision not to attend during the presentation of plaintiff's case so as to avoid being called as an adverse witness.
We have already said too much about section 473, since it has no application here. The motion for new trial could have been granted only under Code of Civil Procedure section 657, which lists the exclusive grounds for a new trial. Defendant has never invoked any of the grounds for a new trial under section 657, and the trial court would have acted within its discretion if it had denied the motion on that ground alone. Despite defendant's failure to cite the governing law, we will briefly consider the "accident or surprise" ground for a new trial, even though it does not apply to these facts. A new trial may be granted as a result of "[a]ccident or surprise, which ordinary prudence could not have guarded against." (Code Civ. Proc., § 657, subd. 3.) This ground for new trial does not apply here, but it is the only ground for new trial that even remotely relates to defendants' arguments.
The "accident or surprise" ground for a new trial is not available to defendant because nothing unforeseen happened during the court trial. (See Kauffman v. De Mutiis (1948) 31 Cal.2d 429, 432 [counsel and party who knew subpoenaed witness would not attend trial but did not so advise the court or seek issuance of bench warrant or continuance of trial, were found to have "speculate[d] on a favorable verdict" and were not surprised within meaning of Code Civ. Proc., § 657].) Defendant had known on what date trial would commence for nearly eight months and never moved for a continuance before trial. Superior Court of Los Angeles County, Local Rules, then-rule 4.0 (now rule 2.16) provided in pertinent part: "Sessions of departments shall be held from 8:30 a.m. to 12:00 noon and from 1:30 p.m. to 4:30 p.m." Those have been customary court hours for many years. Local Rules, rule 7.12 (now Appendix 3.A(l)), addressing required litigation conduct at trial, provided in part: "Counsel should be punctual and prepared for any court appearance." Then-rule 8.82 (now rule 3.106), addressing "on-call" witnesses, provided: "It is the responsibility of the party who is the proponent of an `on-call' witness to have the witness present in court when needed."
It was no surprise that the court expected counsel to have witnesses available during ordinary trial court hours, and certainly not in this case where counsel had said not a word about witnesses being unavailable. The court acted well within its discretion in determining the case was submitted for decision on the record of proceedings that took place on the day set for trial. There were no surprises in the way the trial was conducted. The court conducted the trial in conformance with fair procedures that have been followed by lawyers and judges in Los Angeles Superior Court for as many years as we can remember.
Moreover, defendant conceded, and the trial court found, that the decision not to call the two defense witnesses on the day of trial was a strategic decision on the part of defendant and his counsel. Defense counsel said, "And, yes, it was — a strategic decision was made that I would — Mr. Abergel would not be here during the plaintiff's presentation of the case, yes. That was a strategic decision, and I am not saying anywhere that there was fault on that. That is not the fault I am asking about. So it was a strategic decision that Mr. Abergel would not be present so that plaintiff should not have the opportunity to call him as an adverse witness. However — and as soon as defense would have rested he would have been here." In denying the motion for new trial, the court observed it was "extraordinary" that the defense did not have his witnesses present and on call. "That is and was in my view a strategic decision that was being made, and parties make these decisions all the time, but under the circumstances I am comfortable with the court's handling of the matter given what was happening that day."
The court did not abuse its discretion in concluding the absence of the two defense witnesses was a strategic decision. A new trial may not be granted on the ground of accident or surprise where counsel has failed to call a key witness during trial or made other tactical mistakes. (In re Marriage of Liu (1987) 197 Cal.App.3d 143, 155 [acts done deliberately, perhaps with bad judgment, after consultation with client, do not show accident or surprise; there is no such ground for a new trial as mistake or inadvertence or mistake of law of a party or counsel].)
DISPOSITION
The judgment is affirmed. Respondents are to recover their costs on appeal.
BIGELOW, P. J. and FLIER, J., concurs.
