Judge: Daniel M. Crowley, Case: 20STCV39582, Date: 2022-10-19 Tentative Ruling
Case Number: 20STCV39582 Hearing Date: October 19, 2022 Dept: 28
Defendant Bam Partners, LLC’s Motion to Continue Trial
Having considered the moving papers, the Court rules as follows.
BACKGROUND
On October 14, 2020, Plaintiff Craig Grossmueller (“Plaintiff”) filed this action against Defendants Fox Head, Inc. (“Fox”) and Amazon.com (“Amazon”) for strict product liability, failure to warn, breach of express warranties, breach of implied warranties, negligent product liability and negligent infliction of emotional distress.
On February 3, 2021, Plaintiff filed the FAC, removing the cause of action for NIED, and adding a cause of action for false or misleading advertising. Plaintiff later amended the complaint to include Defendants Amazon Web Services, Inc. (“AWS”), Amazon.com Services, LLC (“AS”), Bam Partners, LLC (“Bam”) and Trend Nation LLC (“Trend”).
On March 4, 2021, Fox filed an answer. On April 22, 2022, Fox filed a Cross-Complaint against Cross-Defendants Bam and Trend for implied indemnity, contribution and apportionment of fault and declaratory relief.
On August 11, 2022, Bam filed an answer.
On September 15, 2022, Bam filed a Motion to Continue Trial to be heard on October 19, 2022.
Trial is currently scheduled for January 30, 2023.
PARTY’S REQUESTS
Bam requests the Court continue trial to July 2023.
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
Bam was added as a defendant on December 16, 2021; Bam was not served with the complaint until spring 2022. Therefore, Bam only recently appeared in the action. Upon filing an answer, Bam served discovery on Plaintiff, but has yet to receive answers. Several named defendants have yet to be served and appear in this action.
Given that trial is fast approaching, and discovery is still ongoing due to the delayed service, the Court grants a continuance.
CONCLUSION
The Court notes that this matter is not at-issue. The Court sets a hearing on an Order to Show Cause why the complaint should not be dismissed as to named but unserved defendants (Amazon WebServices, Inc., Amacon.com Services, LLC, Tend Nation, LLC, and Amazon.com Inc.) on November 18, 2022 at 8:30 a.m. in Dept. 28. The Court will continue this motion to that same date and time.
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.