Judge: Cherol J. Nellon, Case: 20STCV36290, Date: 2023-04-06 Tentative Ruling

Case Number: 20STCV36290    Hearing Date: April 6, 2023    Dept: 28

Defendant Los Angeles County MTA’s Motion to Continue Trial

Having considered the moving, opposing and reply papers, the Court rules as follows. 

BACKGROUND

On September 23, 2020, Plaintiff Gilberto Avendano (“Plaintiff”) filed this action against Defendant Los Angeles County MTA (“Defendant”) for general negligence and premises liability.

On November 12, 2020, Defendant field an answer.

On June 30, 2021, Plaintiff filed the FAC. A stipulation was filed to keep the already existent answer.

On March 10, 2023, Defendant filed a Motion to Continue Trial to be heard on April 6, 2023. On March 21, 2023, Plaintiff filed an opposition. On March 24, 2023, Defendant filed a reply.

Trial is currently scheduled for July 7, 2023.

PARTY’S REQUESTS

Defendant requests the Court continue trial to December 8, 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 alleges that, according to a recently discovered report of a neuropsychological evaluation by Plaintiff’s doctors, Plaintiff alleges serious neuropsychological injury. Defendant claims this report was only provided on February 24, 2023; prior to this, Plaintiff had not listed a neuropsychologist among his treating providers, nor did he list injuries related to “functional limitations, stress/anxiety disorder, mild PTSD, or depression.” Apparently, some of these conditions were discovered and treated following Defendant’s previous IME, in which the treat physician found that Plaintiff was suffering from undiagnosed and untreated depression and would benefit from psychotherapy. Plaintiff’s counsel has stated he intends to call a neuropsychological expert.

Plaintiff argues that this is just to further delay trial and prejudice trial. The Court disagrees—Plaintiff sought out additional medical treatment that resulted in new complaints and retention of an expert in a field Defendant has yet to have their own expert evaluate Plaintiff regarding. Plaintiff provided the reported to allow Defendant to better understand Plaintiff’s damages; Defendant is entitled to, at the very least, have their motion requesting leave be heard by the Court. Plaintiff will not stipulate to an order granting Defendant leave to conduct an IME into this injury. Defendant has reserved a date for the hearing on a motion to grant leave for May 30, 2022, approximately a month before trial. The Court finds good cause to grant a brief continuance to allow Defendant’s motion to be heard and any necessary IME be conducted. However, the Court does not see a need for a 5-month continuance and instead grants a shorter continuance.

CONCLUSION

Defendant Los Angeles County MTA’s Motion to Continue Trial is GRANTED. Trial is continued to September 12, 2023, at 8:30 a.m. in Department 28 of the Spring Street Courthouse. The Final Status Conference is August 29, 2023, at 10:30 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.