Judge: Cherol J. Nellon, Case: 21STCV32589, Date: 2023-04-24 Tentative Ruling

Case Number: 21STCV32589    Hearing Date: April 24, 2023    Dept: 28

Defendants’ Motion to Continue Trial

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

BACKGROUND

On September 2, 2021, Plaintiff Michael Konsor (“Plaintiff”) filed this action against Defendants Home Depot, U.S.A., Inc. (“Home Depot”) and David Hoy (“Hoy”) for premises liability.

On September 20, 2021, Plaintiff filed the FAC, adding Defendants Frank Cerda (“Cerda”) and David Montes (“Montes”). Plaintiff later amended the complaint to include Defendant Adrian’s, Inc. (“Adrian’s”).

On November 5, 2021, Home Depot filed an answer. On November 12, 2021, Hoy, Cerda and Montes filed answers. On April 7, 2022, Adrian’s filed an answer.

On February 2, 2022, Home Depot field a Cross-Complaint against Cross-Defendant Adrian’s for express contractual indemnity, breach of contract and equitable indemnity. On April 4, 2022, Adrian’s filed an answer.

On April 4, 2022, Adrian’s filed a Cross-Complaint against Cross-Defendants Moes 1- 15 for breach of written contract, indemnity, contribution and declaratory relief. Adrian’s later amended the Cross-Complaint to include Home Depot.

On March 30, 2023, Defendants filed a Motion to Continue Trial to be heard on April 24, 2023. On April 11, 2023, Plaintiff filed an opposition. On April 14, 2023, Defendants filed a reply.

Trial is currently scheduled for June 1, 2023.

PARTY’S REQUESTS

Defendants request the Court continue trial for at least 120 days.

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.” 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

Home Depot is still awaiting the production of Plaintiff’s medical and billing records from Veterans Administration Hospital (“VAH”). The subpoena was originally served on June 14, 2022; VAH objected to the subpoena, requesting Plaintiff’s signature. Plaintiff provided a completed waiver on November 30, 2022—VAH has still yet to produce documents. VAH again objected to the subpoena, and parties met and conferred to obtain records. Since then, Home Depot has received some records from Plaintiff, who is reviewing the records prior to production, but has not received any directly from VAH. Home Depot expects to not receive records for another 1 to 3 months. This is necessary information for both potential additional Plaintiff’s depositions and expert review.

Plaintiff argues that they have already provided all the applicable records to Home Depot, and that Home Depot is now requesting duplicative records from Home Depot. However, Plaintiff later contradicts himself, arguing that Home Depot should have begun to review the records they have and can “fill in the gaps” with any additional documents later. Plaintiff also

states he should not be obligated to appear for a second deposition—this is an issue best discussed in a specific motion addressing the deposition. A continuance would provide time to either conduct a second deposition or request a protective order.

While the Court does find good cause to grant a continuance to allow time to complete discovery, the Court admonishes Home Depot to file motions to compel discovery if necessary. In the future, the Court will not continue trial due to a delay in subpoenaed records without proof that Home Depot has taken diligent steps, including motion work, to obtain said discovery.

CONCLUSION

Defendants’ Motion to Continue Trial is GRANTED. The trial date is continued to October 5, 2023, at 8:30 a.m., at Department 28 in the Spring Street Courthouse. The final status conference is set for September 21, 2023, at 10:00 a.m., at Department 28 in the Spring Street Courthouse. All pretrial dates are continued, based on 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.