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.