Judge: Cherol J. Nellon, Case: 21STCV14528, Date: 2024-01-04 Tentative Ruling

Case Number: 21STCV14528    Hearing Date: March 18, 2024    Dept: 14

Case Background

Plaintiff alleges that Defendant has allowed his rubber tree to grow into Plaintiff’s property.

Complaint

On January 10, 2024, Plaintiff filed his First Amended Complaint for (1) Private Nuisance, (2) Trespass, (3) Negligence, and (4) Declaratory Relief against Defendants James Speed (“Speed”) Michelle McFadden (“McFadden”) and Andrew Quinn (“Quinn”).

Only the fourth cause of action is asserted against Defendants McFadden and Quinn.

On February 1, 2024, Defendants McFadden and Quinn filed their joint Answer.

On February 7, 2024, Defendant Speed filed his Answer.

On March 8, 2024, Plaintiff voluntarily dismissed the second cause of action, without prejudice.

Cross-Complaint

            On January 10, 2024, Defendant Speed filed his Cross-Complaint for (1) Comparative Equitable Indemnity, (2) Contribution, and (3) Declaratory Relief against Cross-Defendants McFadden, Quinn, and ROES 1-20.

On January 16, 2024, Cross-Defendants McFadden and Quinn filed their joint Answer.

Trial Date

            Jury Trial is currently set for March 18, 2024.

Instant Motion

            Defendants McFadden and Quinn now move this court for an order continuing their trial date by 90 days.

Decision

            The motion is GRANTED, in part. Trial is continued to May 13, 2024, at 9:00 am. Final Status Conference is set for April 30, 2024, at 10:00 am. All counsel are to appear IN PERSON at the Final Status Conference. All discovery-related deadlines will track the new date, as well as the deadlines for motions in limine and the preparation of trial documents.

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 McFadden and Quinn bring their motion on three bases (1) that the parties are engaged in settlement discussions, (2) that their experts need to do more testing on the tree at issue in this case, and (3) that the pleadings were recently altered and the parties need a little more time to react. Only the last of these reasons is sufficient to justify a continuance, and even that reason is not sufficient to justify a continuance of significant length.

            This case is nearly three years old. The subject matter involved is the growth of a single rubber tree on a residential lot. Defendant Speed filed his initial answer in May of 2021. Default was entered against Defendants McFadden and Quinn on January 20, 2023, though counsel later stipulated to set it aside. Nothing significant about the facts or evidence available to the parties has changed during all this time – the tree has simply continued to exist in their literal back yards. Whatever was going to happen in terms of expert evaluations or settlement efforts should have already happened.

            It is true that, in January of this year, an amended complaint was filed, along with a cross-complaint. But as this court noted in granting leave for these filings, the new pleadings did “not change the factual theory of the case and should not necessitate much additional discovery or preparation.” (Minute Order filed January 4, 2024, p. 2). The only change in legal theories was the addition of a claim for declaratory relief to the complaint, and the addition of a cross-complaint for indemnity and contribution running between already-present defendants.

            The moving papers offer the court no picture of what additional work has been caused by the addition of the cross-complaint, other than the general assertion that Defendants McFadden and Quinn might need to retain more experts. But they have had since the beginning of January to do that, and there is no explanation as to why it hasn’t been done yet.

            With all that said, it is also true that this is not the oldest case on the court’s trial calendar for March 18, 2024. There is at least one other case on calendar which is both significantly older and has previously answered ready to proceed. For that reason, this case would have to be continued anyway. And this court has an open date in 60 days on which this case would be the oldest set.

Conclusion

            Because the parties may benefit from a little more time to prepare, and because this court cannot take this case as scheduled anyway, the motion is GRANTED, in part. Trial is continued to May 13, 2024, at 9:00 am. Final Status Conference is set for April 30, 2024, at 10:00 am. All counsel are to appear IN PERSON at the Final Status Conference. All discovery-related deadlines will track the new date, as well as the deadlines for motions in limine and the preparation of trial documents.