Judge: Daniel M. Crowley, Case: 21STCV41799, Date: 2023-03-06 Tentative Ruling
Case Number: 21STCV41799 Hearing Date: March 6, 2023 Dept: 28
Defendant
Vern Perry Asphalt Paving, Inc.’s Motion to Continue Trial
Having
considered the moving, opposing and reply papers, the Court rules as follows.
BACKGROUND
On November 12, 2021, Plaintiff Ivy
Seto (“Plaintiff”) filed this action against Defendants CVS Pharmacy, Inc.
(“CVS Pharmacy”), Garfield Beach CVS, LLC (“GB CVS”), CVS Health Corp (“CVS
HC”), Vern Perry Asphalt Paving, Inc. (“VPAP”) and FTE, LLC (“FTE”) for
negligence and premises liability.
On December 23, 2021, VPAP filed an
answer. On April 1, 2022, VPAP filed a Cross-Complaint against Cross-Defendant
CVS Pharmacy, GB CVS, CVS HC and FTE for total indemnity, implied partial
indemnity, declaratory relief and equitable apportionment. On June 7, 2022, FTE
filed an answer.
On October 5, 2022, VPAP field a
Cross-Complaint against Cross-Defendant Kidder Mathews of California, Inc.
(“KM”) for total indemnity, implied partial indemnity, declaratory relief and
equitable apportionment. On October 17, 2022, KM filed an answer.
On October 17, 2022, FTE and KM
filed a Cross-Complaint against Cross-Defendant VPAP for total equitable
indemnity, partial equitable indemnity, express indemnity, breach of contract
and declaratory relief.
On February 2, 2023, VPAP filed a
Motion to Continue Trial to be heard on March 6, 2023.
Trial is currently scheduled for May
12, 2023
PARTY’S
REQUESTS
VPAP
requests the Court continue trial to October 27, 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
VPAP requests the Court continue
trial to allow time to complete discovery prior to trial and any MSJ. KM was
served with a cross-complaint on October 5, 2022; KM filed a timely response.
KM provided discovery responses on December 22, 2022, which now requires
additional discovery via depositions and subpoenas. Given KM’s late inclusion,
the fact this motion is unopposed, and that this is the first requested
continuance, the Court finds good cause to grant the continuance.
CONCLUSION
Defendant
Vern Perry Asphalt Paving, Inc.’s Motion to Continue Trial is GRANTED. Trial is
continued to October 27, 2023, at 8:30 a.m. in Department 28 of the Spring
Street Courthouse. The Final Status Conference is October 13, 2023, at 10:00
a.m. in Department 28 of the Spring Street Courthouse. All discovery and
related dates are set to trail 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.