Judge: Audra Mori, Case: BC692591, Date: 2022-10-10 Tentative Ruling

Case Number: BC692591    Hearing Date: October 10, 2022    Dept: 31

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

This case involves an automobile accident that occurred more than six years ago on June 23, 2016.  On January 31, 2018, Plaintiff Owoimaha Umoh (“Plaintiff”) filed this action against Defendant Ofir Alon Faktor (“Defendant”) for damages arising out of the automobile accident.  Trial is currently set for October 31, 2022. 

Plaintiff now moves to continue the current trial date.  Defendant opposes the motion.  As of October 4, 2022, no reply has been received.

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 that Defendant has failed to respond to any discovery propounded by Plaintiff, and that Defendant has not been deposed.  Plaintiff provides it noticed Defendant’s deposition on three occasions, but each time Defendant objected to the deposition notice.  Further, Plaintiff states that Defendant has provided only unverified responses to written discovery.  Plaintiff has filed multiple motions to compel discovery set for January 2023.  Plaintiff asserts he received a recommendation for a permanent spinal cord stimulator and needs time to complete this procedure. 

            In opposition, Defendant argues that this matter is now more than four years and seven months old, and that Plaintiff has had ample time to complete fact discovery, but Plaintiff was not diligent.  Defendant contends that Plaintiff waited nearly two years to file Plaintiff’s discovery motions, and that discovery closed in this matter on August 1, 2022.  Defendant provides that Defendant does not oppose a trial continuance and a continuance of the expert discovery cutoff, as Defendant contends that discovery should be conducted concerning Plaintiff’s upcoming operation to implant a spinal cord stimulator.  Defendant requests that if the trial date is continued, that only expert discovery and discovery concerning Plaintiff’s operation be reopened. 

            As Defendant asserts, this matter was previously set for trial on August 31, 2022.  At a Final Status Conference (“FSC”) on August 17, 2022, the trial date was continued to September 30, 2022.  Only open deadlines were to move with the new trial date.  (Min. Order, Aug. 17, 2022.)  At a FSC on September 16, 2022, the trial date was again continued to October 31, 2022.  No further deadlines or dates were continued with the new trial date.  (Min. Order, Sept. 29, 2022.) 

            Looking at factors that may be considered in deciding a motion to continue trial and touched upon by Plaintiff, the first factor weighs against continuance.  The trial is approaching this month after pending for many years.  The second factor, concerning previous continuances, also weighs against granting the motion.  There have been many past continuances.  Among other continuances, Plaintiff's Ex Parte Application To Continue Trial and All Related Dates was granted on October 25, 2021, due to Plaintiff’s continuing treatment.  The third through fifth factors weigh against continuance because Plaintiff seeks a continuance of five months in a case that is nearly five years old, when Plaintiff could have prosecuted this matter more diligently, making any prejudice suffered a result of Plaintiff’s own delay.  While counsel declares that Plaintiff may undergo additional treatment, that is not sufficient to continue this matter further given the age of the case.  Indeed, it is not always possible for a Plaintiff to finish treatment prior to trial. 

Additional factors for the Court to consider include a party’s excused inability to obtain essential testimony.  As acknowledged, this matter is almost five years old.  On July 29, 2022, Plaintiff filed motions to compel responses to form interrogatories, special interrogatories, and request for production of documents, all set one, and to deem request for admissions, set one, admitted against Defendant.  The motions were not diligently filed, if not untimely filed.  Defendant points out that the deadline to hear discovery motions was August 16, 2022, pursuant to Code of Civil Procedure section 2024.020, and this closed deadline did not move when trial was continued on August 17, 2022.  (CCP § 2024.020(b).)  Thus, the last day to provide 16-court days of notice in order for a discovery motion to be heard by August 16, 2022 was July 25, 2022.  Plaintiff’s discovery motions were filed thereafter.  Further, the evidence attached to each motion shows that the relevant discovery requests were served on Defendant on July 1, 2020, and Defendant served unverified responses on July 31, 2020.  Plaintiff offers no explanation for why Plaintiff waited two years to move to compel verified responses to the discovery requests. 

Unfortunately, there is no evidence that Plaintiff acted diligently to obtain discovery.  The parties were given notice of the previous August 31, 2022 trial date on October 25, 2021, when the court granted Plaintiff’s ex parte request for a continuance.  This order explicitly informed the parties they “should expect NO FURTHER CONTINUANCES,” (Min. Order, Oct. 25, 2021), but Plaintiff seemingly did not do anything to obtain the relevant discovery between this time and the trial date.  Similarly, in the motion the compel Defendant’s deposition, Plaintiff last noticed Defendant’s deposition for October 20, 2021, and then attempted to notice it against for August 10, 2022, after discovery was already closed.  The Court notes that because Plaintiff repeatedly failed to participate in discovery in this matter, Defendant made a motion for and was awarded monetary sanctions.[1] 

In addition, although Plaintiff argues the trial date should be continued because Plaintiff has not completed discovery, to date, Plaintiff has not filed a motion to reopen discovery, nor does Plaintiff request or provide good cause for reopening discovery in the motion.  (CCP § 2024.050.) 

            While Defendant provides that Defendant does not oppose continuing expert discovery and limited fact discovery, as Defendant acknowledges, discovery in this matter is closed.  No further cut-off dates were continued with the current trial date.  Furthermore, as with Plaintiff, Defendant has not moved to reopen discovery and does not make the required showing under CCP § 2024.050.  Therefore, discovery is to remain closed at this time. 

            Based on the foregoing, Plaintiff does not establish good cause for the trial continuance.  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 10^th day of October 2022