Judge: Cherol J. Nellon, Case: 19STCV10523, Date: 2023-05-08 Tentative Ruling
All parties are
urged to meet and confer with all parties concerning this tentative ruling to
see if they can reach an agreed-upon resolution of their matter. If
you are able to reach an agreement, please notify the courtroom staff in
advance of the hearing if you wish to submit on the tentative ruling rather
than argue the motion by notifying the court by e-mailing the court at: SSCDEPT28@lacourt.org. Include
the word "SUBMITS" in all caps and the Case Number in the Subject
line. In the body of the email, please provide the date and time of the
hearing, your name, your contact information, the party you represent, and
whether that party is a plaintiff, defendant, cross-complainant,
cross-defendant, claimant, intervenor, or non-party, etc.
Please be
advised that if you submit on the tentative and elect not to appear at the
hearing, the opposing party may still appear at the hearing and argue the
matter, and the court could change its tentative based upon the
argument. Unless you receive a submission from all other parties in
the matter, you should assume that others might appear at the hearing to argue.
If you submit, but still intend to appear, include the words "SUBMITS, BUT
WILL APPEAR" in the Subject line. If you elect to
argue your matter, you are urged to do so remotely, via Court-Connect.
Note that once the Court has issued a tentative, the Court has the inherent
authority not to allow the withdrawal of a motion and to adopt the tentative
ruling as the order of the court.
If you submitted a courtesy copy of
your papers containing media (such as a DVD or thumb drive), unless you request
the return of the media in your papers, the court will destroy it following the
hearing of your matter.
Case Number: 19STCV10523 Hearing Date: May 8, 2023 Dept: 28
Defendant Los Angeles Unified School District’s Motion to Continue Trial
Having considered the moving, opposing and reply papers, the Court rules as follows.
BACKGROUND
On March 27, 2019, Plaintiff Brianna Hernandez (“Plaintiff”) filed this action against Defendant Los Angeles Unified School District (“Defendant”) for general negligence and premises liability.
On May 26, 2021, Defendant filed an answer.
On March 29, 2023, Defendant filed a Motion to Continue Trial to be heard on May 8, 2023. On April 25, 2023, Plaintiff filed an opposition. On May 1, 2023, Defendant filed a reply.
Trial is currently scheduled for May 24, 2023.
PARTY’S REQUESTS
Defendant requests the Court continue trial to at least August 2023.
Plaintiff requests the Court deny the motion.
LEGAL STANDARD
CRC rule 3.1332(b) outlines that “a party seeking a continuance of the date set for trial, whether contested or uncontested or stipulated to by the parties, must make the request for a continuance by a noticed motion or an ex parte application under the rules in chapter 4 of this division, with supporting declarations. The party must make the motion or application as soon as reasonably practical once the necessity for the continuance is discovered.”
Under CRC 3.1332(c), The Court may grant a continuance only on an affirmative showing of good cause requiring the continuance. Circumstances that may indicate good cause include “a party's excused inability to obtain essential testimony, documents, or other material evidence despite diligent efforts,” or the unavailability of a party, counsel, or expert due to death, illness or other excusable circumstance. The Court should consider all facts and circumstances relevant to the determination, such as proximity of the trial date, prior continuances, prejudice suffered, whether all parties have stipulated to a continuance, and whether the interests of justice are served. CRC 3.1332(d).
DISCUSSION
Defendant has an upcoming motion to reopen discovery for limited purpose and to compel Plaintiff’s IME set for June 16, 2023. This is after the current trial date. According to Defendant, parties were attempting to set Plaintiff’s IME and awaiting dates from Plaintiff. On February 22, 2023, at which time no IME could be noticed prior to discovery cut off, Plaintiff indicated she would not be willing to submit to a physical examination. Defendant claims Defendant did not have time to file a motion to compel prior to the hearing.
In reviewing Defendant’s exhibits and evidence, the Court finds good cause to grant the continuance, to allow the Court to more in-depth review the motion to re-open discovery and compel Plaintiff’s IME.
Defendant’s exhibits indicate that Defendant reached out to Plaintiff on January 3, 2023, and received an immediate reply requesting dates. A month later, on February 7, 2023, Defendant provided 5 potential dates. Upon receiving no immediate reply, Defendant served a unilateral demand a day later, for March 7, 2023. Given the then current trial date, only two of the available dates would have been within the standard discovery cut-off; the later of the two was March 7. Plaintiff rightfully points out that scheduling the IME for March 7, 2023, does not comply with the 30 days demand requirement for CCP § 2032.220. Therefore, none of the proposed dates complied with the rules of CCP.
However, Plaintiff’s counsel responded to the February 8, 2023, email with “[w]e will get back to you as soon as possible regarding our client’s availability.” Plaintiff’s counsel did not communicate the failure to abide by the CCP requirements until February 22, 2023. Defendant may have believed that Plaintiff was willing to agree to waive the 30-day requirements, or to conduct discovery after the deadline, given Plaintiff’s February 8, 2023, statement. Defendant
may have filed a motion to compel an IME or to extend/re-open the discovery cut-off earlier, had Plaintiff not indicated as such. Therefore, the Court finds good cause to grant a brief continuance to allow parties to argue on the merits of the upcoming motions.
CONCLUSION
Defendant Los Angeles Unified School District’s Motion to Continue Trial is GRANTED. Trial is continued to August 16, 2023, at 8:30 a.m. in Department 28 of the Spring Street Courthouse. The Final Status Conference is continued to August 2, 2023, at 10:00 a.m. in Department 28 of the Spring Street Courthouse. All discovery and related dates are set to trail the new trial date.
Moving party is ordered to give notice of this ruling.
Moving Party is ordered to file the proof of service of this ruling with the Court within five days.
The parties are directed to the header of this tentative ruling for further instructions.