Judge: Anne Hwang, Case: 23STCV03240, Date: 2024-09-26 Tentative Ruling

Case Number: 23STCV03240    Hearing Date: September 26, 2024    Dept: 32

PLEASE NOTE:   Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached.  If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit.  The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling.  If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court.  If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely.  Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court. 

TENTATIVE RULING

MOTION

Defendants Bruce Berke and Zafira Berke (“Defendants”) move to continue trial and all related dates. Plaintiff Israel Morales (“Plaintiff”) opposes and Defendants reply.

BACKGROUND

            The complaint was filed on February 14, 2023 and alleges negligence based on a motor vehicle accident. Trial was initially set for August 13, 2024.

            Defendants’ answer was filed on March 29, 2023.

            On June 3, 2024, pursuant to stipulation, the Court continued trial and all related dates to October 25, 2024.

ANALYSIS

Legal Standard

 “Continuances are granted only on an affirmative showing of good cause requiring a continuance.”  (In re Marriage of Falcone & Fyke (2008) 164 Cal.App.4th 814, 823.)  A trial court has broad discretion in considering a request for a trial continuance.  (Pham v. Nguyen (1997) 54 Cal.App.4th 11, 13-18.)  California Rules of Court, rule 3.1332 sets forth factors for the Court to consider in ruling on a motion to continue trial. 

“To ensure the prompt disposition of civil cases, the dates assigned for a trial are firm. All parties and their counsel must regard the date set for trial as certain.” (Cal. Rules of Court, rule 3.1332(a).)

“A party seeking a continuance of the date set for trial, whether contested or uncontested or stipulated to by the parties, must make the request for a continuance by a noticed motion or an ex parte application under the rules in chapter 4 of this division, with supporting declarations. The party must make the motion or application as soon as reasonably practical once the necessity for the continuance is discovered.” (Cal. Rules of Court, rule 3.1332(b).)

“Although continuances of trials are disfavored, each request for a continuance must be considered on its own merits. The court may grant a continuance only on an affirmative showing of good cause requiring the continuance. Circumstances that may indicate good cause include:

(1)   The unavailability of an essential lay or expert witness because of death, illness, or other excusable circumstances;

(2)   The unavailability of a party because of death, illness, or other excusable circumstances;

(3)   The unavailability of trial counsel because of death, illness, or other excusable circumstances;

(4)   The substitution of trial counsel, but only where there is an affirmative showing that the substitution is required in the interests of justice;

(5)   The addition of a new party if:

(A) The new party has not had a reasonable opportunity to conduct discovery and prepare for trial; or

(B) The other parties have not had a reasonable opportunity to conduct discovery and prepare for trial in regard to the new party’s involvement in the case;

(6)   A party’s excused inability to obtain essential testimony, documents, or other material evidence despite diligent efforts; or

(7)   A significant, unanticipated change in the status of the case as a result of which the case is not ready for trial.”

(Cal. Rules of Court, rule 3.1332(c).)

“In ruling on a motion or application for continuance, the 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;

(6)   If the case is entitled to a preferential trial setting, the reasons for that status and whether the need for a continuance outweighs the need to avoid delay;

(7)   The court’s calendar and the impact of granting a continuance on other pending trials;

(8)   Whether trial counsel is engaged in another trial;

(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).)

Discussion

Defendants argue that a continuance is necessary because they have been unable to complete a physical and mental examination of Plaintiff. Defendant Bruce Berke was deposed on June 6, 2024. On July 24, 2024, the first part of Zafira Burke’s deposition was taken but could not be completed due to her health. On August 6, 2024, Plaintiff appeared for a deposition, but it could not go through since he required a Honduran interpreter. Defendants assert they were previously informed that Plaintiff required a Spanish interpreter and had obtained one for the deposition. Thereafter, the first part of Plaintiff’s deposition was taken on August 12, 2024, and the second part was scheduled for August 21, 2024.

On August 19, 2024, Defendants noticed a physical examination of Plaintiff for September 24, 2024 and a neuropsychological examination for September 19, 2024.

As a result, Defendants seek a trial continuance to January 24, 2025 to complete the examinations.

In opposition, Plaintiff argues that Defendants caused the delays in discovery by not serving code compliance examination notices. (See Pl. Exh. 11,12.) Nevertheless, if the motion is granted, Plaintiff requests that the Court set the trial date for February 24, 2025 since Plaintiff’s counsel will be involved in a another trial on January 24, 2025.

In reply, Defendants argue they could not examine Plaintiff until he was deposed, which did not occur until August 2024.

The Court notes that trial is currently set for October 25, 2024. That means the fact discovery cut-off in this case was September 25, 2024. (Code Civ. Proc., § 2024.020.) Even though Defendants seek to have all discovery continued in this case, they have not moved to reopen discovery under Code of Civil Procedure section 2024.050. (See Pelton-Shepherd Industries, Inc. v. Delta Packaging Products, Inc. (2008) 165 Cal.App.4th 1568, 1588 [“…the postponement of the trial date did not ‘operate to reopen discovery proceedings’ ‘[e]xcept as provided in Section 2024.050’ – that is, except upon a successful motion for leave to reopen discovery.” [alterations and emphasis in original].) Since the trial continuance is based on fact discovery being continued as well, there is currently no good cause to grant the motion.

Accordingly, the Court denies the motion to continue trial and all related dates.

CONCLUSION AND ORDER

The Court DENIES Defendants’ motion to continue trial and all related dates.

Defendants shall give notice of this order, and file a proof of service of such.