Judge: Cherol J. Nellon, Case: 19STCV39862, Date: 2023-08-14 Tentative Ruling

Case Number: 19STCV39862    Hearing Date: August 14, 2023    Dept: 14

Instant Motion

Defendants City, Gonzalez, Perez, Anguiano, Plummer, and Roman now move this court for an order continuing trial in this case to September 11, 2023.

Decision

The motion is GRANTED. Trial is continued to September 11, 2023, at 10 am. All other dates remain as scheduled.

Discussion

            California Rules of Court Rule 3.1332(a) provides that trial dates are to be treated as firm. However, Rule 3.1332(c) provides that, although continuances are “disfavored,” requests should be considered on an individual basis. That subsection also includes a non-exhaustive list of possible grounds for a continuance.

            Defendants make their motion under the auspices of Rule 3.1332(c)(1)-(3) and (7). Rules 3.1332(c)(1)-(3) provide for a continuance if an expert witness, party, or counsel, is unavailable due to “death, illness, or other excusable circumstances.” Rule 3.1332(c)(7) provides for a continuance if there is a “significant, unanticipated change in the status of the case.” The only Rule which applies in this situation is Rule 3.1332(c)(3).

            The proffered reasons for the continuance are (1) Defense expert Edward Flosi plans to go on vacation, (2) Defendant Plummer will have just returned from a vacation, (3) Defense counsel has family vacationing to see him from August 18-31, and (4) this court granted Plaintiff’s request to add certain factual allegations to her complaint on August 3, 2023, rendering the issues in the case “uncertain.”

            The first two reasons are insufficient. The vacation of Defendant Plummer is neither an “excusable circumstance” nor does not actually conflict with the scheduled trial date – Defendant Plummer will be back when trial is called, and counsel will have plenty of time to prepare him in the off time during the several days it will take to get through motions in limine and voir dire. And the vacation of a paid expert such as Mr. Flosi is not an “excusable circumstance.” It is difficult enough to find dates convenient (and even then, “convenient” is often far from the right word) for the court and counsel. Add paid experts to the list and the task would become impossible.

            Nor does the court’s recent granting of leave to amend constitute a “significant, unanticipated change in the status of the case.” The amendment sought and permitted was the allegation of additional facts that Plaintiff believes appear in certain deposition testimony. It does not change Plaintiff’s theory of the case. Had the court denied leave to amend, the supporting evidence would still have been admissible at trial, and Plaintiff would have been entitled to an amendment to conform to proof under Code of Civil Procedure §§ 469-470.

            Although the vacations of parties and paid experts may not constitute an “excusable circumstance” for unavailability, the vacations of counsel do. Trial counsel’s primary function is to be in court trying cases; if their vacations did not constitute excusable circumstances for unavailability, they would never have vacations. That outcome is, of course, unacceptable. While Defense counsel may not be going out of town, his family has gone out of town to see him. The court will not insist that he spend his time in trial rather than with them.

Conclusion

            A continuance is appropriate based on the personal schedule of Defense counsel. The length of the requested continuance is also appropriately short. Therefore, the motion is GRANTED. Trial is continued to September 11, 2023, at 10 am. All other dates remain as scheduled.