Pham

In this case we affirm a judgment after the trial court denied a continuance request stipulated to in writing by both parties. The appellant relies on a little-known statute, section 595.2 of the Code of Civil Procedure, which on its face requires the trial court to continue trials, or the hearing of any motion or demurrer, when the parties agree in writing to such a postponement. As we explain below, the statute is directory, not mandatory, so the appellant was not entitled to the requested continuance.

But even though we affirm the judgment, we must register a small plea in favor of professional courtesy in the conduct of litigation. While we acknowledge that the trend has been to look upon any sort of continuance with skepticism (e.g., rule 375, Cal. Rules of Court), not every continuance request is borne of a dilatory motive or procrastination. Scheduling conflicts *14 and unexpected events happen. And when they do, it is also important that opposing lawyers should do the right thing and try to accommodate each other; the courts, for their part, should, if possible, not throw up a roadblock to that courtesy.

Facts

Michael Pham sued Mai-Thi Thi Nguyen for dental…

I concur in the result but cannot join the majority opinion. The dicta contained therein relates to a non-issue and is premised on what I deem a questionable analysis of public policy and the law. What follows is an opinion which comes to the same conclusion, but with fewer words.

I

Michael Pham sued Mai-Thi Thi Nguyen for dental malpractice on August 4, 1994. The matter was sent to judicial arbitration where an award issued in favor of Nguyen on September 11,1995. Pham requested a trial de novo and the matter was set for trial on January 29, 1996.

Four days before trial, the parties submitted a stipulated request for a continuance, claiming they had not had time to depose their expert witnesses. The trial judge summarily denied the request. On the day of trial, Nguyen again requested a continuance, this time arguing she had learned just two days before trial that her expert would be unavailable. This request was also denied.

After a court trial, the court found in favor of Pham. Nguyen appeals, contending the trial court abused its discretion in refusing to grant a continuance.

II

Continuances must be “ ‘granted sparingly . . . and then only on a proper and adequate showing…

In this case we affirm a judgment after the trial court denied a continuance request stipulated to in writing by both parties. The appellant relies on a little-known statute, section 595.2 of the Code of Civil Procedure, which on its face requires the trial court to continue trials, or the hearing of any motion or demurrer, when the parties agree in writing to such a postponement. As we explain below, the statute is directory, not mandatory, so the appellant was not entitled to the requested continuance.

But even though we affirm the judgment, we must register a small plea in favor of professional courtesy in the conduct of litigation. While we acknowledge that the trend has been to look upon any sort of continuance with skepticism (e.g., rule 375, Cal. Rules of Court), not every continuance request is borne of a dilatory motive or procrastination. Scheduling conflicts and unexpected events happen. And when they do, it is also important that opposing lawyers should do the right thing and try to accommodate each other; the courts, for their part, should, if possible, not throw up a roadblock to that courtesy.

Michael Pham sued Mai-Thi Thi Nguyen for dental…