Judge: Audra Mori, Case: 20STCV33913, Date: 2022-12-07 Tentative Ruling

Case Number: 20STCV33913    Hearing Date: December 7, 2022    Dept: 31

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

On September 4, 2020, Plaintiff Ik Hoon Choi (“Plaintiff”), et al. filed this action against Defendant Filippo Marchino (“Defendant”) for damages relating to a dog bite incident.  The complaint alleges a single cause of action for negligence.  Trial is currently set for January 6, 2023. 

Plaintiff now moves to continue the current trial date to 90 days after the hearing on Plaintiff’s motion for leave to file an amended complaint, which is set for hearing on April 20, 2023.  Defendant opposes the motion, and Plaintiff 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, Plaintiff asserts he has scheduled his motion for leave to file an amended complaint for April 20, 2023, which was the first available hearing date for the motion.  Plaintiff provides he is seeking leave to add causes of action for violation of Civil Code § 3342 and for negligence per se based on the same dog bite incident.  Plaintiff provides these claims were not included the complaint due to Plaintiff’s counsel’s inadvertence, neglect, or mistake.  Plaintiff argues that there is no substantial prejudice to Defendant by continuing the trial date to after the hearing on Plaintiff’s motion for leave to amend. 

In opposition, Defendant contends that Plaintiff’s motion is procedurally defective in that it was filed only 14 court days before the hearing date.  Further, Defendant asserts that Plaintiff inquired about amending the complaint one year ago, and that Defendant advised Plaintiff that Defendant was unable to stipulate to the amendment on January 5, 2022.  Defendant argues that Plaintiff thus unreasonably delayed in filing a motion for leave to amend for ten months with trial set to commence in less than one months after this hearing.  Defendant contends that Plaintiff does not set forth sufficient good cause to continue the trial date. 

Plaintiff, in reply, argues that Defendant does not dispute that a continuance to allow Plaintiff’s motion for leave to amend is proper, and that the merits of the motion for leave to amend are not now before the Court.   Plaintiff further argues that Defendant has addressed the merits of Plaintiff’s motion, so Defendant has waived any defects or irregularities with Plaintiff’s motion. 

As to Defendant’s contention that Plaintiff’s motion is procedurally defective, pursuant to CCP § 1005, all moving and supporting papers must be served and filed at least 16 court days prior to the hearing.  Additionally, “[a]ny period of notice, or any right or duty to do any act or make any response within any period or on a date certain after the service of the document, which time period or date is prescribed by statute or rule of court, shall be extended after service by electronic means by two court days.”  (CCP § 1010.6(a)(4)(B).)  Eighteen court days before this hearing would have been November 8, 2022.  Consequently, Plaintiff untimely filed and served the motion on November 14, 2022.  Plaintiff states he attempted to file the motion on November 11, 2022.  However, as Plaintiff himself acknowledges, November 11, 2022 was a court holiday, and regardless, the motion would still have been untimely filed and served on this date. 

Plaintiff further cites to Tate v. Superior Court (1975) 45 Cal.App.3d 925, in arguing that Defendant waived any defect in Plaintiff’s late service by arguing the merits of the motion.  The Tate Court held: “It is well settled that the appearance of a party at the hearing of a motion and his or her opposition to the motion on its merits is a waiver of any defects or irregularities in the notice of the motion. [Citations] … Accordingly, a party who appears and contests a motion in the court below cannot object on appeal or by seeking extraordinary relief in the appellate court that he had no notice of the motion or that the notice was insufficient or defective.”  (Id. at 930.)  In Tate, the trial court on its own motion set a “Notice of Order To Show Cause In Re Dismissal” for hearing on 14 days’ notice.  (Id. at 929-30.)  It was noted in that “that petitioner appeared at the hearing in response to the notice. He did not appear specially to object to the court's jurisdiction or to the failure of the court to comply with rule 203.5,” which required 45 days’ notice of such a hearing.  (Id. at 930.)  Thus, unlike Defendant in this case, there is no showing that the petitioner in Tate objected to the improper notice.  Plaintiff does not otherwise cite any authority holding that a party waives improper notice of a motion by objecting to such in their opposition to a motion.  The motion will be continued to allow Defendant to file a supplemental opposition to fully address the merits of the motion.

            The hearing on the motion is continued to January 4, 2023, at 1:30 p.m. in Department 31 of the Spring Street Courthouse.  Defendant may file a supplemental opposition at least nine court days before the continued hearing date.  Any supplemental reply must be filed at least five court days before the continued hearing.

            Further, while the Court does not normally advance hearing dates for motions and has declined to do so previously, the Court finds it would be more efficient and practical to hear to this together with Plaintiff’s motion for leave to file an amended complaint, as the ruling on the motion for leave to amend will determine whether there is good cause for a trial continuance.  The April 20, 2023 hearing date for Plaintiff’s motion for leave to amend is advanced to today and continued to January 4, 3023 to be heard on the same date and time as the motion to continue trial.  Any opposition and reply are due pursuant to Code. 

            The parties should continue to prepare for the current trial date until and unless it is moved. 

Plaintiff 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