Judge: Audra Mori, Case: BC687782, Date: 2022-10-11 Tentative Ruling

Case Number: BC687782    Hearing Date: October 11, 2022    Dept: 31

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

On December 20, 2017, Plaintiff William McIntyre (“Plaintiff”) filed this action against Defendant Guy Waski (“Defendant”) for damages arising from a motorcycle vs. vehicle accident that occurred on December 24, 2015.  Trial in this matter is currently set for October 18, 2022. 

Plaintiff now moves to continue the current trial date at least six months so that Plaintiff’s motion to compel expert depositions can be heard on March 30, 2022.  At a Final Status Conference (“FSC”) on September 29, 2022, the Court set the hearing date on this motion to continue trial for October 11, 2022.  Any opposition was due by October 4, 2022, and the reply by October 5, 2022.  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 attests that Formica Law Group associated into the case for Plaintiff on August 18, 2022, and Stefano G. Formica (“Formica”) then became the handling trial attorney.  Plaintiff provides that at that time trial was scheduled for September 7, 2022, so Formica could not notice the deposition of defense experts Griff Stelzner (“Stelzner”) and Jeffrey Suway (“Suway”).  Plaintiff states that after the previous trial date was continued, Plaintiff’s counsel met and conferred with defense counsel regarding the discovery and unilaterally noticed the expert depositions of Stelzner and Suway, but Defendant objected to the deposition notices on the grounds that expert discovery was cutoff on August 23, 2022.  Plaintiff states he then filed a motion to compel the expert depositions of Stelzner and Suway on September 28, 2022, but the first available date was March 30, 2023.  Plaintiff therefore seeks to continue the trial date for no less than six months to allow the motion to be heard.  Alternatively, Plaintiff requests the motion to compel expert depositions be specially set for hearing. 

In opposition, Defendant asserts that Plaintiff’s complaint was filed nearly five years ago by Plaintiff’s attorney of record, Shahin Shwawn Karmimian (“Karmimian”), and the trial date in this action has previously been continued five times.  Defendant contends that Plaintiff had three opportunities to depose Stelzner and Suway, but Plaintiff was dilatory in doing so.  Further, Defendant contends that Plaintiff’s reliance on CCP § 599 to reopen discovery is improper. 

In reply, Plaintiff asserts that Plaintiff’s counsel, Karmimian, has admitted his error in not previously noticing the depositions of Defendant’s experts, and contends that good cause exists to obtain essential expert deposition testimony.[1]  Additionally, Plaintiff argues that Defendant improperly maintains that expert discovery is closed, and that pursuant to CCP § 599, the expert discovery cutoff date based on the current trial date was October 3, 2022. 

Trial in this matter was previously set for September 7, 2022.  Based on this trial date, the expert discovery cutoff date was August 23, 2022.  (CCP § 2024.030.)  At a FSC on August 24, 2022, the trial date was continued to September 21, 2022.  At a FSC on September 7, 2022, after the Court noted the parties needed additional time to finalize trial binders and file motions in limine, the trial date was continued to October 18, 2022.  These orders did not reopen or extend any deadlines that had already closed.  (Min. Order, Aug. 24, 2022.) 

            In weighing the factors relevant to determining whether a continuance is warranted, the factors weigh against a continuance.  First, the trial date is set for one week after this hearing and after the action was filed nearly five years ago.  Second, there have been many past continuances of the trial date.  The third through fifth facts further weigh against a continuance because Plaintiff seeks a continuance of six months for a case that is nearly five years old, when Plaintiff could have prosecuted this action more diligently.  Defendant asserts, and Plaintiff does not dispute, that Plaintiff had at least three opportunities to depose Stelzner and Suway dating back to April 28, 2020, making any prejudice suffered as a result of not doing so caused by Plaintiff’s own delay.  Defendant avers has been prejudiced by the protracted trial continuances. 

            An additional factor to be considered is a party’s excused inability to obtain essential testimony despite diligent efforts.  As stated above, this action is nearly five years old and concerns an accident that occurred almost seven years ago.  Unfortunately, there is no evidence that Plaintiff acted diligently in obtaining Defendant’s experts’ depositions.  Plaintiff, in his reply, acknowledges he had at least three prior opportunities to depose Stelzner and Suway, and Plaintiff offers no explanation for why Plaintiff did not do so earlier other than stating Karmimian erred in not doing so.  Rather, Plaintiff primarily contends that Formica associated as counsel in this matter on August 19, 2022, and could not notice the depositions of Defendant’s experts.[2]  Formica was certainly aware of the trial date and relevant cutoff dates at the time Formica associated as counsel in this matter.  Plaintiff, however, did not then notice Stelzner’s and Suway’s depositions until September 16, 2022, after the September 7, 2022 trial was continued.  Further, Plaintiff did not file his motion to compel Defendant’s experts’ depositions until September 28, 2022.   Consequently, Plaintiff did not notice the experts’ depositions or file the motion to compel until after expert discovery was closed based on the prior September 7 trial date.  The cutoff date to complete expert discovery did not move when the trial date was continued.

Additionally, while the Standing Order Re: Personal Injury Procedures at the Spring Street Courthouse provides that the Personal Injury courts do not have the capacity to add hearings to their fully booked motion calendars and parties should generally seek to continue trial rather than advance a hearing date, the deadline to hear motions concerning expert discovery is 10 days before trial.  (CCP § 2024.030.)  Even assuming that the deadline to file such motions moved with the trial continuance, Plaintiff’s motion to compel would have been required to have been heard by October 10, 2022, based on the current trial date.[3]  The last day to provide 16-court days’ notice in order for such a motion to be heard by October 10 was September 15, 2022, but Plaintiff did not file his motion to compel until September 28, 2022.  Plaintiff’s counsel admits to discussing the issues concerning Stelzner’s and Suway’s depositions with defense counsel on August 22, 2022, but Plaintiff waited more than one month to file the motion to compel the expert depositions.  (Mot. Formica Decl. ¶ 5

            In seeking to continue the trial date to have the motion to compel the experts’ depositions heard, Plaintiff does not request, nor does Plaintiff establish good cause for, reopening discovery.  (See CCP § 2024.050.)  Instead, Plaintiff primarily contends that the continuance of the September 7 trial date extended deadlines applicable to discovery pursuant to CCP § 599.  This provision was enacted in response to the Covid-19 pandemic.  (CCP § 599(b) [“This section shall remain in effect only during the state of emergency proclaimed by the Governor on March 4, 2020, related to the COVID-19 pandemic and 180 days after the end...”].)  CCP § 599 “extends” certain deadlines for the same length of time as a continuance of postponement of trial.  The August 24, 2022, trial continuance was not a continuance of trial due to COVID-19.  Rather, the Court continued the matter because the parties had not properly finalized their trial documents.  The expert discovery cutoff based on the previous trial date had already passed on August 23, 2022, and thus, the deadline to complete such discovery had already expired when September 7 trial was continued on August 24, 2022.  Nothing in CCP § 599 suggests it is intended to revive expired deadlines, particularly in this situation.  Further, as discussed above, even if the deadline to hear a discovery motion is calculated using the current trial date, Plaintiff’s motion to compel was untimely filed.  Plaintiff does not otherwise offer any reasoning or authority to show that Plaintiff acted diligently in waiting until September 16, 2022, to notice Stelzner’s and Suway’s depositions, and waiting until September 28, 2022, to file his motion to compel.  Plaintiff, thus, did not diligently seek Stelzner’s and Suway’s depositions, or file the motion. 

Based on the foregoing, Plaintiff’s motion to continue trial is denied. 

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 11^th day of October 2022