Judge: Cherol J. Nellon, Case: 21STCV07006, Date: 2023-11-30 Tentative Ruling

Case Number: 21STCV07006    Hearing Date: April 8, 2024    Dept: 14

Pagar v Kirk

Case Background

Plaintiff alleges that Defendants rented his house for a small vacation party of no more than 9 people, expressly promising not to add guests or conduct any commercial activity, including filming, while they were occupying the premises. Defendants then brought 40 people and a commercial film crew to the property, battered the Plaintiff when he told them to leave, stole his phone, and vandalized the property.

            On February 22, 2021, Plaintiffs filed their Complaint for (1) Fraud, (2) Breach of Contract, (3) Battery, (4) Conversion, and (5) Trespass against Defendants Jonathan Kirk (“Kirk”), Kinsza Virgil (“Virgil”), and DOES 1-40. On April 1, 2022, the default of Defendant Virgil was entered. On June 6, 2022, Defendant Kirk filed his Answer.

            On November 1, 2022, this court entered a separate default judgment against Defendant Virgil. On November 23, 2022, Defendant Virgil filed her notice of appeal. On January 6, 2023, the Court of Appeal dismissed the appeal.

The case remains pending as to Defendant Kirk.

            On November 8, 2022, this court granted a stay on discovery directed to Defendant Kirk.

            Jury Trial is currently set for September 3, 2024.

Instant Motion

            Defendant Kirk now moves this court for orders (1) continuing the trial date to November 5, 2024, (2) continuing all pre-trial deadlines to track the new date.

Decision

            The motion is DENIED.

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.

            Defendant Kirk initially filed this motion on the sole grounds that he has two trial counsel who both have scheduling conflicts: one is scheduled to commence trial in Department 40 in this building on August 27, 2024, and the other is scheduled to commence two different trials in Nevada on the same day this trial is set (September 3, 2024).

            In opposition, Plaintiff suggested that the scheduling conflict be resolved by advancing the trial. In reply, for the first time, Defendant Kirk’s lead counsel raised medical issues of which he has been aware since the end of last year. The court will not entertain a request to advance the trial date unless made pursuant to Code of Civil Procedure § 36 or some other rule of priority.

Nor will the court consider counsel’s medical issues as an additional ground to continue the trial, as counsel chose to leave that information out of the moving papers and still has other trials scheduled out-of-state at the same time. If counsel discuss the medical issue and reach a stipulation on that basis, the court would entertain that stipulation. But that is an issue for another day.

            Potential scheduling conflicts with events that are four or five months away remain just that: potential. If this court only scheduled trials when it was sure that all counsel and witnesses would be available, no case would ever be tried. Should Defense counsel actually become engaged in Department 40 ahead of this case, this court would grant a continuance in this case as a matter of course. But until then, this court cannot adjust its schedule based on what might happen in other cases and other courts.

Conclusion

            Because there is no actual conflict yet, the motion to continue is DENIED.