Judge: Daniel S. Murphy, Case: 22STCV07717, Date: 2023-05-10 Tentative Ruling

Case Number: 22STCV07717    Hearing Date: August 21, 2023    Dept: 32

BACKGROUND

            On March 2, 2022, Plaintiff Charissa Manor filed this action against Defendant City of Pico Rivera, alleging violations of the Labor Code and Business and Professions Code. Plaintiff alleges that Defendant failed to abide by COVID safety protocols and terminated Plaintiff as retaliation for Plaintiff’s complaints regarding COVID safety. The operative First Amended Complaint, filed June 14, 2022, asserts causes of action based on Labor Code sections 6310, 6311, 1102.5, 232.5, and Business and Professions Code section 17200.

            On February 24, 2023, Defendant filed a motion for summary judgment. The motion was initially set to be heard on May 10, 2023. However, the motion was continued to June 21, 2023, to allow Plaintiff to file a late opposition. This resulted in a trial continuance to October 10, 2023. The Court indicated that the parties could stipulate to a further continuance if the October date did not work. Defendant’s economist, Jubin Merati, is unavailable in October 2023. Defense counsel conferred with Plaintiff’s counsel, who indicated that he was available in December 2023 but that he would need permission from Plaintiff before stipulating to a continuance. Plaintiff has refused to continue the trial.

            On July 26, 2023, Defendant filed the instant motion to continue trial. Plaintiff filed her opposition on August 7, 2023. Defendant replied on August 14, 2023.

LEGAL STANDARD

The Court has statutory authority “[t]o provide for the orderly conduct of proceedings before it” and “[t]o control in furtherance of justice, the conduct of its ministerial officers.” (Code Civ. Proc., § 128(a).) Additionally, “all courts have inherent supervisory or administrative powers which enable them to carry out their duties, and which exist apart from any statutory authority.” (Rutherford v. Owens-Illinois, Inc. (1997) 16 Cal.4th 953, 967.) “That inherent power entitles trial courts to exercise reasonable control over all proceedings connected with pending litigation.” (Ibid.) “Courts have inherent authority to control their own calendars and dockets . . . .” (Walker v. Superior Court (1991) 53 Cal.3d 257, 267.) “The court may grant a continuance only on an affirmative showing of good cause requiring the continuance.” (Cal. Rules of Ct., Rule 3.1332(c).)

DISCUSSION

            “The unavailability of an essential lay or expert witness because of death, illness, or other excusable circumstances” constitutes good cause for a trial continuance. (Cal. Rules of Ct., Rule 3.1332(c)(1).) In granting the initial continuance, which was caused by Plaintiff to begin with, the Court selected a date in October in order to accommodate the delayed MSJ hearing but indicated that the parties could stipulate to a further continuance depending on witness availability. (Luna Decl., Ex. A at 5:22-25.) Defendant’s economist is indeed unavailable in October 2023. (Id., ¶ 5.)

            Despite having benefitted from the initial continuance, Plaintiff now inexplicably refuses to extend Defendant the same courtesy. Plaintiff’s opposition argues that there is no good cause for a continuance because Mr. Merati is only one witness, and it may be possible to depose him remotely. First, “[t]he unavailability of an essential lay or expert witness” (singular) is sufficient cause to continue trial. (See Cal. Rules of Ct., Rule 3.1332(c)(1).) Plaintiff does not dispute that Mr. Merati is an essential witness on the issue of damages and that Mr. Merati is in fact unavailable in October. Second, Plaintiff cites no authority for the proposition that a deposition mitigates the unavailability of a witness at trial. Plaintiff does not dictate how Defendant presents its case.

            In sum, Plaintiff has offered no reason not to continue the trial. Any prejudice that Plaintiff may suffer from the delay is self-inflicted, since the continuance was necessitated by Plaintiff’s own failure to timely oppose the MSJ. On the other hand, Defendant would be unduly prejudiced without the benefit of Mr. Merati’s testimony. It would be gamesmanship for Plaintiff to obtain a continuance to survive summary judgment and then force Defendant to go to trial without its damages expert.  

CONCLUSION

            Defendant’s motion to continue trial is GRANTED.