Judge Cynthia A Freeland, Case 37-2020-00039920-CU-PN-NC 2023-09-01 Tentative Ruling

Judge: Cynthia A Freeland, Case: 37-2020-00039920-CU-PN-NC, Date: 2023-09-01 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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SOUTH BUILDING TENTATIVE RULINGS - August 31, 2023

09/01/2023 01:30:00 PM N-27 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Cynthia A. Freeland

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Civil - Unlimited Professional Negligence Motion Hearing (Civil) 37-2020-00039920-CU-PN-NC GARDNER VS PLANT SOURCE INC [IMAGED] CAUSAL DOCUMENT/DATE FILED: Ex

Parte Application - Other and Supporting Documents, 07/26/2023 On July 27, 2023, the court set as a noticed motion Cross-Defendant San Diego Farms LLC ('Cross-Defendant')'s ex parte application to continue trial and related dates, with the ex parte application and supporting documents serving as the moving papers. Any supplemental briefing was to be filed per Code. See ROA No. 222. On August 21, 2023, Plaintiffs Sandra Burns Gardner and Kathleen Burns Schack (collectively, 'Plaintiffs') submitted their supplemental opposition to the motion.

See ROA No. 226. As of the date of this ruling, however, Cross-Defendant has not filed a supplemental reply or any other papers or evidence in support of the motion. Having considered the motion, supplemental opposition, counsels' arguments at the July 27, 2023 hearing, and the respective evidence, the court rules as follows: Cross-Defendant's motion to continue trial and related dates is denied without prejudice.

Presently, the trial and related dates in this matter are as follows: (1) the first expert exchange was August 18, 2023; (2) the second expert exchange is September 1, 2023; (3) the discovery and motion cutoff is October 6, 2023; (4) the trial readiness conference is October 13, 2023; and (5) the trial is November 3, 2023. See ROA No. 203. Cross-Defendant seeks a 90-to-120-day continuance of the foregoing dates under California Rules of Court ('CRC'), Rule 3.1332.

CRC, Rule 3.1332 governs motions or applications for a continuance of trial and related dates. As a general matter, trial dates are firm, and all parties and their counsel must regard trial dates as certain.

See Cal. R. Ct. 3.1332(a). While continuances of trial are disfavored, the court may grant a continuance upon an affirmative showing of good cause bearing in mind the strong public policy favoring deciding cases on the merits. See In re Marriage of Falcone and Fyke (2008) 164 Cal. App. 4th 814, 823; Oliveros v. County of Los Angeles (2004) 120 Cal. App. 4th 1389, 1398-1399.

The circumstances that may warrant a continuance of trial include: (1) The unavailability of an essential lay or expert witness because of death, illness, or other excusable circumstances; (2) The unavailability of a party because of death, illness, or other excusable circumstances; (3) The unavailability of trial counsel because of death, illness, o rother excusable circumstances; Calendar No.: Event ID: TENTATIVE RULINGS

3001844 CASE NUMBER: CASE TITLE: GARDNER VS PLANT SOURCE INC [IMAGED] 37-2020-00039920-CU-PN-NC (4) The substitution of trial counsel, but only where there is an affirmative showing that the substitution is required in the interests of justice; (5) The addition of a new party if: (A) The new party has not had a reasonable opportunity to conduct discovery and prepare for trial; or (B) The other parties have not had a reasonable opportunity to conduct discovery and prepare for trial in regard to the new party's involvement in the case; (6) A party's excused inability to obtain essential testimony, documents, or other material evidence despite diligent efforts; or (7) A significant, unanticipated change in the status of the case as a result of which the case is not ready for trial.

Cal. R. Ct. 3.1332(c). Other relevant facts and circumstances that the court must consider in ruling on a motion for continuance include: (1) The proximity of the trial date; (2) Whether there was any previous continuance, extension of time, or delay of trial due to any party; (3) The length of the continuance requested; (4) The availability of alternative means to address the problem that gave rise to the motion or application for a continuance; (5) The prejudice that parties or witnesses will suffer as a result of the continuance; (6) If the case is entitled to a preferential trial setting, the reasons for that status and whether the need for a continuance outweighs the need to avoid delay; (7) The court's calendar and the impact of granting a continuance on the other pending trials; (8) Whether trial counsel is engaged in another trial; (9) Whether all parties have stipulated to a continuance; (10) Whether the interests of justice are best served by a continuance, by the trial of the matter, or by imposing conditions on the continuance; and (11) Any other fact or circumstance relevant to the fair determination of the motion or application.

Cal. R. Ct. 3.1332(d). The court has broad discretion with regard to a request to continue trial and related dates. See Pham v. Nguyen (1997) 54 Cal. App. 4th 11, 13-18; Link v. Cater (1998) 60 Cal. App. 4th 1315, 1321.

On October 30, 2020, Plaintiffs and Plaintiff Jeanne Burns commenced this action by filing a Complaint against Defendant/Cross-Complainant/Cross-Defendant Plant Source, Inc. ('Plant Source') for negligence and trespass. See ROA No. On November 18, 2022, Cross-Complainant/Cross-Defendant Evergreen Twin Oaks Limited Partnership ('Evergreen') filed a Cross-Complaint against Plant Source and Cross-Defendant. See ROA No. 173. On January 9, 2023, Cross-Defendant filed: (1) its own Cross-Complaint against Evergreen and Plant Source (see ROA No. 187, and (2) an Answer to Evergreen's Cross-Complaint (see ROA No. 185). The parties do not dispute that Cross-Defendant, Calendar No.: Event ID: TENTATIVE RULINGS

3001844 CASE NUMBER: CASE TITLE: GARDNER VS PLANT SOURCE INC [IMAGED] 37-2020-00039920-CU-PN-NC since its appearance in this action, has diligently pursued an informal resolution. See Pelochino Decl., ¶¶ 3-4; Nocon Decl., ¶ 6. Indeed, the parties were initially scheduled to go to mediation on July 13, 2023 before the Honorable Frederick L. Link (Ret.). See Pelochino Decl., ¶ 4. However, the mediation was subsequently continued to September 27, 2023 in light of Cross-Defendant's recent discovery of an additional insurance company for Plant Source. Ibid., ¶¶ 7-8.

The court commends Cross-Defendant for taking an active role in pursuing an informal resolution of this case. The court has no reason to doubt that Cross-Defendant has conducted itself in good faith in this action as well as for the present motion's purposes. The court nevertheless finds that Cross-Defendant has failed to demonstrate the requisite good cause for a further continuance of the trial and related dates. To start, this would not be the parties' first continuance request. Indeed, trial in this matter was initially set for July 8, 2022. See ROA No. 36. On March 11, 2022, the court vacated the trial and trial readiness conference. See ROA No. 83. On September 21, 2022, the court reset the trial date for June 16, 2023. See ROA No. 165. On February 2, 2023, the court, pursuant to all counsels' (inclusive of Cross-Defendants' counsel) stipulation, continued the trial to November 3, 2023. See ROA No. 203.

Moreover, the court must respectfully disagree with Cross-Defendant that it will not have ample time to prepare for trial, conduct discovery, and/or pursue settlement absent a further continuance. Nothing is preventing Cross-Defendant from doing so. As set forth above: (1) the discovery and motion cutoff is not until October 6, 2023; (2) the trial readiness conference is not until October 13, 2023; and (3) the trial is not until November 3, 2023. In addition, the evidence shows that the parties have engaged in extensive discovery efforts since January 2023. See Nocon Decl., ¶¶ 5, 7. Cross-Defendant has had the opportunity to conduct all necessary discovery since that time, an opportunity that Plaintiffs have apparently taken advantage of while simultaneously preparing for trial and pursuing settlement negotiations.

Finally, Plaintiffs have demonstrated that they will suffer substantial prejudice in the event a further continuance is granted. More specifically, Ms. Gardner and Ms. Schack have each submitted declarations in which they aver that Cross-Defendant's and/or Plant Source's ongoing operations on the road adjacent to Plaintiffs' property continues to cause significant noise, dust, and disruption to Plaintiffs' business including, without limitation, safety risks to Plaintiffs' customers and horses. Plaintiffs expect such hazards to continue for the entirety of any trial continuance. See Gardner Decl., ¶ 10; Schack Decl., ¶ 10.

In light of the foregoing, the court denies Cross-Defendant's request for a continuance without prejudice.

The court confirms the trial and related dates as set forth herein.

This is the tentative ruling for the hearing at 1:30 p.m. on Friday, September 1, 2023. If no party appears at the hearing, this tentative ruling will become the order of the court as of September 1, 2023. If the parties are satisfied with the court's tentative ruling or do not otherwise wish to argue the motion, they are encouraged to give notice to the court and each other of their intention not to appear, though this notice is not required.

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3001844