Judge: Audra Mori, Case: 20STCV49008, Date: 2022-12-06 Tentative Ruling

Case Number: 20STCV49008    Hearing Date: December 6, 2022    Dept: 31

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

Plaintiff Carlos Arias (“Plaintiff”) filed this action against Defendant City of Los Angeles (“Defendant”), et al. for injuries he sustained when the wheel of an electric scooter he was riding “caught on a[n] elevated portion of the sidewalk that was dangerously and defectively raised over two (2) inches of concrete, which created an extremely unsafe and dangerous condition for those travelling upon it, causing Plaintiff to forcefully, and violently fall to the ground, and resulting in severe injuries.”  (Compl. at ¶ 12.)  The complaint alleges a single cause of action for dangerous condition of public property against Defendant.  Trial is currently set for December 23, 2022. 

Defendant now moves to continue the current trial date at 120 days, or to a date thereafter, and that all trial-related dates be based on the new trial date.  Plaintiff opposes the motion, and Defendant filed a reply.[1] 

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 contends there is good cause to continue the trial date because a critical witness, Serinda Swan (“Swan”), is out of the country and unavailable to be deposed until March 2023.  Defendant states that Swan resided at the house directly adjacent to the location of the subject incident for six years, so Swan can testify to the history of the sidewalk in front of her house and as to any other similar incidents.  Further, Defendant asserts that Swan is a direct witness to the accident and observed Plaintiff after the incident.  Defendant provides it first sought Swan’s deposition at the end of August 2022, after Plaintiff provided Defendant with Swan’s phone number after Plaintiff’s deposition.  After Defendant attempted to call Swan multiple times, Swan returned Defendant’s calls on October 6, 2022.  Defendant states that Swan is amenable to being deposed, but Swan is currently working and residing in Canada and will not return to the United States until after March 1, 2023.  Defendant attests that Swan refuses to be deposed remotely.  Additionally, Defendant contends that Plaintiff’s counsel indicated that there are additional medical records forthcoming, but Plaintiff has not yet provided them to Defendant.  

In opposition, Plaintiff argues that the motion is essentially moot because discovery was cutoff as of November 23, 2022, and a trial continuance will not reopen discovery.  Plaintiff further contends that Defendant cannot establish that Swan can provide material evidence regarding the incident or the subject defect.  Plaintiff argues that Defendant does not establish good cause for the continuance, or that Defendant acted with reasonable diligence.   

In reply, Defendant argues that Swan is uniquely positioned to testify regarding the subject sidewalk and the incident, including Plaintiff’s level of intoxication after the incident.  Defendant avers that it pursued the deposition diligently, as Plaintiff initially provided that Swan could be contacted through Plaintiff’s counsel, but Plaintiff did not provide Swan’s phone number until July 27, 2022.  Additionally, Defendant contends it is seeking to reopen discovery by requesting that all trial related dates be based on the new trial date. 

Defendant has identified a specific witness it has not been able to depose.  While Plaintiff contends that Defendant was not diligent in seeking Swan’s deposition, Plaintiff does not deny that he did not provide Swan’s contact information to Defendant until July 2022.  Defendant then attempted to contact Swan until Swan returned Defendant’s counsel’s calls in October 2022.  Defendant attests that Swan has agreed to sit for her deposition, but Swan is out of the country until March 1, 2023, and refuses to be deposed by remote means.  Defendant makes no showing that it has attempted to secure the deposition in Canada through letters rogatory or other legal means.  In sum, it appears that Plaintiff could have given Defendant Swan’s contact information sooner, and Defendant could have taken more proactive steps to secure the deposition.  

Nevertheless, several factors weigh in favor of a continuance.  Defendant asserts that Swan resided directly adjacent to the subject sidewalk, witnessed the incident, and witnessed Plaintiff afterward, so it is reasonable that Swan may have material evidence concerning the alleged dangerous condition and the incident.  There has only been one prior trial continuance in this matter, and no alternative means are identified that would allow for the testimony to be obtained before the current trial date.  Moreover, Plaintiff does not argue or identify any prejudice that he will suffer if the trial date is continued briefly to allow Swan to be deposed.   Defendant is requesting a relatively brief continuance of four months.  For the reasons stated above, the need to depose Swan constitutes good cause to continue trial and reopen discovery.  (CCP § 2024.050.)  However, Defendant does not identify any other specific discovery it has not been able to obtain despite diligent efforts.  Therefore, discovery will be reopened as to allow Swan’s deposition only, and Defendant should take all procedural steps necessary to ensure that the deposition will go forward.  

Defendant’s motion to continue trial is granted.  The December 23, 2022 trial date is continued to ______________ at 8:30 a.m. in Department 31 of the Spring Street Courthouse.  The December 9, 2022 Final Status Conference is continued to _______________ at 10:00 a.m. in Department 31.  Discovery is reopened as to discovery concerning Swan’s deposition only.  This discovery cutoff date for Swan’s deposition and all cutoff dates that have not yet passed are to be based on the new trial date. 

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 6^th day of December 2022