Judge: Audra Mori, Case: 21STCV30595, Date: 2023-01-18 Tentative Ruling

Case Number: 21STCV30595    Hearing Date: January 18, 2023    Dept: 31

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

On August 8, 2021, Plaintiffs Estate of Mark Alan Peacor, by and through Beatriz Peacor as the sole trustee of the Estate, Henry Peacor, Ralph Peacor, and Beatriz Peacor (collectively, “Plaintiffs”) filed this action against Defendant EAN Holdings LLC (“EAN”) and Does 1 through 50 for damages arising from a motor vehicle accident.  Plaintiffs allege that a doe defendant rear ended a vehicle being driven by Beatriz Peacor in which Decedent Mark Alan Peacor (“Decedent”) was a passenger.  Decedent allegedly died as a result of head trauma suffered from the collision. 

On October 27, 2022, Plaintiffs filed an Amendment to Complaint naming Jacob King (“King”) as Doe 1; the drive of the other vehicle.  Thereafter, on November 14, 2022, Plaintiffs filed a Request for Dismissal dismissing the complaint with prejudice as to EAN.  To date, Plaintiffs have not filed proof of service of the summons on King.  Trial is currently set for February 15, 2023. 

At this time, Plaintiffs move to continue the current trial date for one year.    

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, Plaintiffs contend there is good cause to continue the trial date because Plaintiffs’ current counsel substituted into the action in October 2022 and despite diligent efforts, Plaintiffs have not been able to locate and serve King.  Plaintiffs assert that King fled the scene of the accident before emergency personnel arrived, and Plaintiffs’ requests to King’s insurance to accept service on his behalf or provide identifying information to allow Plaintiffs to serve King have so far failed.  Plaintiffs state that they have recently been in contact with an attorney that intends to represent King in this matter, but that the attorney is still waiting for client approval for the method of King’s appearance.  However, Plaintiffs assert that the attorney that intends to represent King agrees a continuance is necessary.  Plaintiffs, thus, seek a one-year continuance to locate and serve King, get the case at issue, conduct discovery, and prepare for trial.  There have been no prior trial continuances in this matter, and as Plaintiffs acknowledge, this case is not yet at issue because they have not yet served King with the summons and complaint, and King has not yet appeared.  Even if King were served before the current trial date, the parties, especially King, would not be given an opportunity to adequately prepare for trial.  Further, there is no showing that a continuance will prejudice any parties, and no alternative means to address the above issues are identified. 

Plaintiffs, thus, establish good cause for the continuance.  Plaintiffs must diligently work to serve King with the summons and complaint and to prosecute this action.  Given that this action is more than one year old, and no defendant has been served with the summons or appeared, the Court will set an Order to Show Cause Re: Dismissal for failure to file proof of service for approximately 90 days after this hearing. 

Defendant’s motion to continue trial is granted.  The February 15, 2023 trial date is continued to ______________ at 8:30 a.m. in Department 31 of the Spring Street Courthouse.  The February 1, 2023 Final Status Conference is continued to _______________ at 10:00 a.m. in Department 31.  All discovery and expert cutoff dates are to be based on the new trial date. 

The Order to Show Cause Re: Dismissal for failure to file proof of service is set for _______________ at 8:30 a.m. in this Department. 

Plaintiffs are 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 18^th day of January 2023