Judge: Cherol J. Nellon, Case: 21STCV27987, Date: 2023-05-24 Tentative Ruling

Case Number: 21STCV27987    Hearing Date: May 24, 2023    Dept: 28

Defendant Costco Whole Corporation’s Motion to Continue Trial

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

BACKGROUND

On July 29, 2021, Plaintiff Cynthia Hopes (“Hopes”) filed this action against Defendants Costco Whole Corporation (“Costco”) and Sergio (Last Name Unknown) for negligence.

On April 14, 2023, Costco filed a Motion to Continue Trial to be heard on May 24, 2023. On May 11, 2023, Plaintiff filed an opposition. On May 17, 2023, Costco filed a reply.

Trial is currently scheduled for July 27, 2023.

PARTY’S REQUESTS

Costco requests the Court continue trial to allow their MSJ to be heard prior to trial.

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

Costco requests the Court continue trial so that their MSJ may be heard prior to trial. Trial is scheduled for July 27, 2023; in order for the MSJ to be heard prior to the current trial date, the MSJ must be heard by June 27, 2023. In order for the MSJ to be heard by that date, it needed to be served by April 13, 2023. The MSJ was filed on April 11, 2023, before the required date of service.

Costco need not provide a reason for filing the MSJ so close to the deadline, as it is Costco’s right to file a timely MSJ at any point prior to trial. If not for the Court’s own calendar, Costco’s MSJ would have been heard prior to trial. Costco should not be deprived of their right to be heard on the merits of a timely filed motion only due to the Court’s own calendar. The Court finds good cause and grants the motion.

CONCLUSION

Defendant Costco Whole Corporation’s Motion to Continue Trial is GRANTED. Trial is continued to February 27, 2024, at 8:30 a.m. in Department 28 of the Spring Street Courthouse. The Final Status Conference is February 13, 2024, 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.