Judge: Audra Mori, Case: 18STCV08081, Date: 2022-12-07 Tentative Ruling

Case Number: 18STCV08081    Hearing Date: December 7, 2022    Dept: 31

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

On December 12, 2018, Plaintiff Eileen Carry (“Plaintiff”) filed this action against Defendant Sarah McKaig (“Defendant”) for damages arising from a motor vehicle accident that occurred on December 17, 2016.  This matter was previously set for trial for December 5, 2022, but at the Final Status Conference on November 18, 2022, the trial date was continued to January 18, 2023. 

Defendant now moves to continue the current trial date May 9, 2023, or to a date thereafter.  Plaintiff opposes the motion.  As of December 5, 2022, no reply has been received.    

Although continuances of trials are disfavored, each request for a continuance must be considered on its own merits.  (CRC Rule 3.1332(c).)  The Court may grant a continuance only on an affirmative showing of good cause requiring the continuance.  (CRC Rule 3.1332(c).) The Court may look to the following factors in determining whether a trial continuance is warranted:  (1) proximity of the trial date; (2) whether there was any previous continuance 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; (5) the prejudice that parties or witnesses will suffer as a result of the continuance; and (6) whether trial counsel is engaged in another trial.  (See generally, CRC Rule 3.1332(d)(1)-(11).)  Additional factors for the Court to consider include: a party’s excused inability to obtain essential testimony, documents, or other material evidence despite diligent efforts; whether all parties have stipulated to a continuance; and any other fact or circumstance relevant to the fair determination of the motion or application.  (CRC Rule 3.1332(c), (d).)

Here, Defendant asserts that although she properly noticed Plaintiff’s independent medical examination with defense expert A. Nick Shamie, M.D. (“Dr. Shamie”), the examination did not go forward when Plaintiff appeared because of Plaintiff’s refusal to cooperate.  Defendant states that Dr. Shamie and Plaintiff used up the appointment time arguing about multiple matters before an examination began, including about Plaintiff producing identification to Dr. Shamie.  Defendant provides she reserved a hearing date of March 23, 2023, for a motion to compel Plaintiff’s medical exam.  Further, Defendant states that her counsel is scheduled to begin trial on November 30, 2022. 

In opposition, Plaintiff avers that she appeared for the medical exam with Dr. Shamie on April 27, 2022, but after Plaintiff asked procedural questions, Dr. Shamie chose to prematurely end the exam because he was frustrated by the questions.  Plaintiff provides that Defendant then noticed a second medical exam with a different doctor on May 24, 2022, and Plaintiff objected to this notice on June 2, 2022 on the ground that Plaintiff had already appeared for a medical exam.  Plaintiff asserts that Defendant then did not file a motion to compel a medical exam of Plaintiff, and that Defendant has delayed in seeking any relief. 

Looking at factors that may be considered in deciding a motion to continue trial and touched upon by Defendant, the first factor weighs against continuance.  The trial is set to commence in just over a month, and this action will have been pending for more than four years by that time.  The second factor, concerning previous continuances, also weighs against granting the motion.  The Court’s records show that there have been many past continuances.  The third through fifth factors weigh against continuance because Defendant seeks a continuance of about four months in a case that will be over four years old and concerns an accident that occurred nearly six years ago.  Defendant could have acted more diligently in obtaining Plaintiff’s medical exam, making any prejudice suffered a result of Defendant’s own delay. 

While the parties dispute who is to blame for Plaintiff’s medical exam with Dr. Shamie not being completed,[1] Plaintiff’s evidence shows that Plaintiff appeared for the exam on April 27, 2022, and Defendant was aware that Plaintiff objected to appearing for another exam since at least June 2, 2022.  However, to date, Defendant has not filed any motion to compel Plaintiff to appear for a physical exam or otherwise sought relief in connection with Plaintiff’ exam.  Instead, Defendant waited until November 10, 2022 to file the instant motion to continue trial.  Defendant has not been diligent in filing any motion to compel Plaintiff to appear for a physical exam.  Defendant did not file a reply, and thus, does not offer any explanation for why Plaintiff waited nearly seven months to seek any relief any connection with Plaintiff’s alleged failure to cooperate at her medical exam.  Unfortunately, there is no evidence that Plaintiff acted diligently to obtain discovery. 

In addition, to the extent Defendant contends Defendant’s counsel was scheduled to begin trial in another matter on November 30, 2022, there is no evidence defense counsel is actually engaged in trial in that other case.  Moreover, because the trial date is currently set for January 18, 2023, there is no showing as to why Defendant cannot adequately prepare for trial by this date, even if counsel were previously engaged in another trial on November 30, 2022.  Similarly, as to Defendant’s contention that the attorney that “could possibly second chair the trial” recently became a father, (Mot. at 4:17), there is no explanation as to why another attorney cannot second chair the trial or why a second chair is necessary. 

Based on the foregoing, good cause for a trial continuance is not established concerning the accident that occurred in 2016.  Defendant’s motion to continue trial is denied. 

Defendant is ordered to give notice. 

PLEASE TAKE NOTICE:

• Parties are encouraged to meet and confer after reading this tentative ruling to see if they can reach an agreement.
• If a party intends to submit on this tentative ruling, the party must send an email to the court at sscdept31@lacourt.org with the Subject line “SUBMIT” followed by the case number.  The body of the email must include the hearing date and time, counsel’s contact information, and the identity of the party submitting.  
• Unless all parties submit by email to this tentative ruling, the parties should arrange to appear remotely (encouraged) or in person for oral argument.  You should assume that others may appear at the hearing to argue.  
• If the parties neither submit nor appear at hearing, the Court may take the motion off calendar or adopt the tentative ruling as the order of the Court.  After the Court has issued a tentative ruling, the Court may prohibit the withdrawal of the subject motion without leave. 

Dated this 7^th day of December 2022