Palomar Refining Co. v. Prentice

California Court of Appeal Apr 5, 1943 No. Civ. No. 3066Published

Before: Marks

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Holding. The court affirmed the judgment, holding that the trial court acted within its discretion in managing discovery, denying continuances, and allowing amendments to the complaint, and noting that the appellant failed to provide a properly certified record.

Issues

Whether the trial court abused its discretion in changing the time and place of a deposition.
Whether the trial court erred in denying a motion for a continuance of the trial.
Whether the trial court erred in permitting an amendment to the complaint to conform to the proof.

Disposition. affirmed

Quotations verified verbatim against the opinion

“The law permits a court to exercise reasonable control over its process, and an order such as we have before us will not be disturbed unless the action taken is unreasonable.”

“The trial court should be vested with a reasonable discretion in passing on motions made on these grounds, and we can see no breach of discretion in the action taken here.”

“Permitting such an amendment is within the discretion of the trial court and there was no abuse of discretion here.”

MARKS, J. This is an appeal from a judgment against defendant in the sum of $377.43 on an open book account.

The complaint in this action was filed August 28, 1940. Defendant appeared by demurrer and also attempted to change the place of trial from Kern County to Los Angeles County. An appeal from the order refusing to change the place of trial was dismissed. (Palomar Refining Co. v. Prentice, 47 Cal.App.2d 572 [118 P.2d 322].)

Defendant’s demurrer to the complaint was overruled and he was given fifteen days in which to answer. Notice of this ruling was served on him by mail on October 31, 1940. He failed to answer and his default was entered on November 20, 1940. Default judgment was taken against him on November 26, 1940. His motion to set aside the default and the default judgment, and to permit him to answer, was granted on February 10, 1941.

Defendant’s answer, denying that any sum was owed plaintiff, was filed on March 8, 1941.

The cause was set for trial for January 13, 1942. On December 19, 1941, defendant filed his motion to continue the time of trial to a future date. This motion was granted on [956]December 22, 1941, and the cause was set for trial for March 2, 1942.

Defendant gave notice of taking the deposition of Seth Turner, an officer of plaintiff, at Boron, California, on February 24, 1942, and obtained a subpoena duces tecum requiring Turner to produce all of the records of plaintiff that pertained to the account sued upon at the time and place set for taking the deposition. Boron is situated on the desert between ninety and one hundred miles from Bakersfield.

Plaintiff moved to quash and recall the subpoena and to change the time and place of taking the deposition. The subpoena was recalled and the place of taking the deposition was changed from Boron to Bakersfield and notice of taking it was shortened to one day prior to February 26th, the date fixed. Notice of this order was served on defendant by mailing it in Bakersfield on February 21, 1942. The order required plaintiff to produce the required records before the notary in Bakersfield. Defendant took no further action and the deposition was not taken.

On February 28, defendant filed the following written request for a further continuance of the trial:

Palomar Refining Co. v. Prentice

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