Judge: Audra Mori, Case: 20STCV21878, Date: 2022-09-22 Tentative Ruling

Case Number: 20STCV21878    Hearing Date: September 22, 2022    Dept: 31

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

Plaintiff Edward Berg (“Plaintiff”) filed this action against defendant Avis Rent A Car Systems, LLC (“Avis”), erroneously named and served herein as Avis Budget Group, Inc. for damages arising out of a motor vehicle accident.  Plaintiff has filed an Amendment to Complaint naming Maria Derbigny (“Derbigny”) as Doe 1.  Trial is currently set for January 5, 2023. 

Plaintiff has obtained Derbigny’s default, and there is a motion to set aside the default set to be heard on January 10, 2023. 

Avis now moves to continue the current trial date to a date after January 10, 2023, so that the motion to set aside can be heard prior to trial.  Plaintiff opposes the motion, and Avis filed a reply.   

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, Avis asserts that the January 10, 2023 hearing date for the motion to set aside the default entered against Derbigny was the first available hearing date for the motion.  Avis asserts that its counsel was in contact with Plaintiff’s counsel prior to the default entered against Derbigny, and that Plaintiff’s counsel was aware that Avis’s counsel would be representing both Avis and Derbigny in this action.  Avis contends that Plaintiff’s counsel, however, did not inform defense counsel that Derbigny had been served, and instead Plaintiff proceeded with quiet speed to have Derbigny’s default entered.  Avis avers that Derbigny was a renter of its vehicle at the time of the accident, and that Avis will be deprived of a fair hearing if the trial continuance is not granted so that the motion to set aside can be heard prior to trial.

In opposition, Plaintiff contends that it would not have mattered if Plaintiff’s counsel notified defense counsel that Plaintiff intended to have Derbigny’s default entered because Avis’s counsel did not have authority to represent Derbigny.  Plaintiff contends that Avis would not suffer any prejudice because there is no hearing scheduled, Avis has not demonstrated good cause, and trial continuances are disfavored. 

However, while Plaintiff states that no hearing has been scheduled, as Avis asserts, the hearing on the motion to set aside is scheduled for hearing on January 10, 2023.  The Court’s records show that the motion to set aside default was filed on July 26, 2022, which was before the instant motion was filed.  As Avis contends in its reply, Plaintiff fails to address Avis’s contention that there is good cause to continue the trial date under the facts because the motion to set aside cannot be heard until after the current trial date.  Avis’s motion shows that a timely motion to set aside the default against Derbigny was filed, but the inability to have the motion heard prior to trial is due to the Court’s calendar.  As the Standing Order Re: Personal Injury Procedures at the Spring Street Courthouse provides, the proper relief to seek in this circumstance is to continue the trial instead of seeking to specially set the hearing date for the motion.  Moreover, Plaintiff does not dispute that Plaintiff’s counsel was in contact with and failed to inform defense counsel that Plaintiff’s counsel intended to have Derbigny’s default entered prior to doing so.  (See Lasalle v. Vogel (2019) 36 Cal.App.5th 127, 135 [“If you're representing plaintiff, and have had any contact with a lawyer representing defendant, don't even attempt to get a default entered without first giving such lawyer written notice of your intent to request entry of default, and a reasonable time within which defendant's pleading must be filed to prevent your doing so.” (emphasis in original).].)  Therefore, given the circumstances in this case, Avis establishes good cause for the continuance. 

Avis’s motion to continue trial is granted.  The January 5, 2023 trial date is continued to ______________ at 8:30 a.m. in Department 31 of the Spring Street Courthouse.  The December 22, 2022 Final Status Conference is continued to _______________ at 10:00 a.m. in Department 31.  All discovery and expert cut-off dates are continued to reflect the new trial date. 

Defendant Avis 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 22^nd day of September 2022