Judge: Daniel M. Crowley, Case: 21STCV12901, Date: 2022-08-30 Tentative Ruling
Case Number: 21STCV12901 Hearing Date: August 30, 2022 Dept: 28
Defendants Exer Medical Corporation and Pham’s Motion to Continue Trial
Having considered the moving, opposing and reply papers, the Court rules as follows.
BACKGROUND
On April 5, 2021, Plaintiff Paul Docter (“Plaintiff”) filed this action against Defendants Exer Holding Company, LLC (“EHC”), Exer Medical Corporation (“EMC”), Exer Urgent Care (“EUC”), Monica Pham, MA (“Pham”), Dominic Deogracias, BSN (“Deogracias”) and Kerry McCabe, DO (“McCabe”) for medical malpractice.
On March 17, 2022, EMC filed an answer. On August 2, 2022, Pham filed a reply.
On July 27, 2022, EHC and Pham (“Moving Defendants”) filed a Motion to Continue Trial to be heard on August 30, 2022. On August 16, 2022, Plaintiff filed an opposition. On August 23, 2022, Moving Defendants filed a reply.
Trial is scheduled for October 3, 2022.
PARTY’S REQUESTS
Moving Defendants request the Court continue trial to August 2023 and have all dates trail the new trial date.
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
Moving Defendants state that Plaintiff waited 10.5 and 13 months to served EMC and Pham, respectively. As such, there has been insufficient time to finish discovery prior to the October trial. They note that the filing deadline for a MSJ expired fifty days before Pham was even required to file her answer in this case due to the delayed service and hearing on her demurrer. Plaintiff confirms that EMC was not served until February 14, 2022—10 months after the filing of the initial complaint. The Court finds that this substantial delay in service without good reason impacted Moving Defendants ability to meaningfully complete discovery, despite their diligent efforts otherwise. Plaintiff provided no explanation that demonstrates EMC attempted to avoid service or delay service; he notes he sent a settlement request prior to service, but even that settlement request came 6 months after the filing of the complaint. Based on the above, the Court finds that there is good cause to delay trial to give Moving Defendants time to complete discovery. The Court grants the motion.
CONCLUSION
Defendants Exer Medical Corporation and Pham’s Motion to Continue Trial is GRANTED. Trial is continued to August 8, 2023, at 8:30 a.m. in Department 28 of the Spring Street Courthouse. The Final Status Conference is July 25, 2023, at 10:00 a.m. in Department 28 of the Spring Street Courthouse. All dates or deadlines are continued to trail the new trial.
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.