Judge: Daniel M. Crowley, Case: 21STCV15731, Date: 2022-08-26 Tentative Ruling
Case Number: 21STCV15731 Hearing Date: August 26, 2022 Dept: 28
Defendant Paige Long’s Motion to Continue Trial
Having considered the moving and opposing papers, the Court rules as follows.
BACKGROUND
On April 26, 2021, Plaintiff William Wade (“Plaintiff”) filed this action against Defendants Paige Long (“Long”), Fox Art, Inc. (“Fox”) and Bill Leopold (“Leopold”) for strict liability, strict liability pursuant to Civil Code §3342, negligence and premises liability.
On October 13, 2021, Plaintiff filed the FAC, adding Defendant Leopold Investment Partnership, LP (“LIP”), removing Leopold and the cause of action for strict liability pursuant to statute.
On November 8, 2021, Fox and LIP filed an answer.
On January 31, 2022, Long filed an answer.
On August 3, 2022, Long filed a Motion to Continue Trial to be heard on August 26, 2022. On August 15, 2022, Fox and LIP filed a joinder. On August 15, 2022, Plaintiff filed an opposition.
Trial is currently scheduled for October 24, 2022.
PARTY’S REQUESTS
Long requests the Court continue trial to May 1, 2023, to allow time for Long’s MSJ to be heard. Fox and LIP join in this request.
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).
CCP § 437c requires a Motion for Summary Judgment be made any time after 60 days have elapsed since the general appearance in the action. The motion shall be heard no later than 30 days before trial, unless the Court, for good cause, orders otherwise. Parties must serve notice of the motion and all supporting papers at least 75 days before the time appointed for hearing.
“A trial court may not refuse to hear a summary judgment motion filed within the time limits of section 437c. (Wells Fargo Bank v. Superior Court (1989) 206 Cal.App.3d 918 [254 Cal.Rptr. 68].) Local rules and practices may not be applied so as to prevent the filing and hearing of such a motion. (Ibid.)” (Sentry Insurance Co. v. Superior Court (1989) 207 Cal.App.3rd 526, 529.)
DISCUSSION
Long states she was only able to discern the viability for a MSJ after the recent conclusion of key witness depositions and the significant advancement of written discovery—the only available date was approximately five months after the currently scheduled trial date. However, Long did not provide when she first attempted to schedule the MSJ. CCP §473c requires that a MSJ be filed at least 75 days before the time appointed for the MSJ hearing, which must occur at least 30 days prior to trial. As trial is currently scheduled for October 24, 2022, Long needed to have filed the MSJ by July 11, 2022. Long does not provide a date, but the Declaration of Matthew S. Jones states “...discovery and depositions were completed in late June, 2022...approximately one month after completing the above-referenced discovery, Defendant Long reserved the hearing date...” (Jones Decl. ¶7.) This suggests that the MSJ date was not reserved by the required date to mandate a continuance.
Long had months to reserve a MSJ date prior to the cut-off date and could have always taken the date off-calendar had Long realized there was no basis for a MSJ. The Court does not find good cause to continue the hearing on this basis.
Fox and LIP join the motion on the assertion that they also have an MSJ scheduled for after the Court date. Again, Fox and LIP have not provided the date they attempted to reserve the date. Given that Fox and LIP’s date is after Long’s, the Court has no reason to assume it was filed prior to the deadline.
The Court file shows no MSJs filed. Any such motion would have had to be filed in July.
Fox and LIP also stated that depositions of third-party witnesses are still ongoing, and that Plaintiff’s IME is not scheduled until September 12, 2022. Fox and LIP have not provided any information to indicate that this is due to excused inability despite diligent efforts. Finally, they note that there is also a potential for settlement and that parties are discussing mediation. The mere potential of settlement is not good cause to grant a continuance.
Based on the above, the Court denies the motion.
CONCLUSION
Defendant Paige Long’s Motion to Continue Trial is DENIED.
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.