Judge: Holly J. Fujie, Case: 20STCV19545, Date: 2022-10-05 Tentative Ruling

DEPARTMENT 56 JUDGE HOLLY J. FUJIE, LAW AND MOTION RULINGS. The court makes every effort to post tentative rulings by 5.00 pm of the court day before the hearing. The tentative ruling will not become the final ruling until the hearing [see CRC 3.1308(a)(2)], and are also available in the courtroom on the day of the hearing [see CRC 3.1308(b)]. If the parties wish to submit on the tentative ruling and avoid a court appearance, all counsel must agree and choose which counsel will give notice. That counsel must 1) call Dept 56 by 8:30 a.m. on the day of the hearing (213/633-0656) and state that all parties will submit on the tentative ruling, and 2) serve notice of the ruling on all parties. If any party declines to submit on the tentative ruling, then no telephone call is necessary and all parties should appear at the hearing in person or by Court Call. Court reporters are not provided, and parties who want a record of motions and other proceedings must hire a privately retained certified court reporter.

Case Number: 20STCV19545    Hearing Date: October 5, 2022    Dept: 56

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

MOVING PARTY: Defendants Serrano Post Acute LLC (“HPHC”) and Benjamin Landa (“Landa”) (collectively, “Moving Defendants”)

RESPONDING PARTY: Plaintiffs Emma Martin, Elizabeth Gagliano AND Kathryn Sessinghaus (collectively, “Plaintiffs”)

            The Court has considered the moving, opposition and reply papers. 

BACKGROUND

On May 21, 2020, Plaintiffs initiated this action, which arises out of the death of Vincent Paul Martin at the onset of the COVID-19 pandemic while admitted at HPHC, a nursing facility.  The currently operative fourth amended complaint (the “4AC”) alleges: (1) violations of the Elder and Dependent Adult Civil Protection Act (the “Elder Abuse Act”); (2) negligence; (3) wrongful death; (4) fraudulent concealment; and (5) fraudulent misrepresentation. 

On September 8, 2022, Moving Defendants filed a motion to continue the trial (the “Motion”) which seeks to have the trial in this matter continued from its currently scheduled start date of December 12, 2022 to May 2023. 

DISCUSSION

California Rules of Court (“CRC”), rule 3.1332(a) provides that trial dates are firm to ensure prompt disposition of civil cases.  (CRC, r. 3.1332(a).)  Continuances are thus generally disfavored.  (CRC, r. 3.1332(b).)  Nevertheless, the trial court has discretion to continue trial dates.  (Hernandez v. Superior Court (2004) 115 Cal.App.4th 1242, 1246.)  Each request for continuance must be considered on its own merits and is granted upon an affirmative showing of good cause.  (CRC, r. 3.1332(c).)  Circumstances that may indicate good cause include: (1) the unavailability of an essential lay or expert witness due to death, illness, or other excusable circumstances; (2) the unavailability of a party due to death, illness, or other excusable circumstances; (3) the unavailability of trial counsel due to death, illness, or other excusable circumstances; (4) the substitution of trial counsel where there is an affirmative showing that the substitution is required in the interests of justice; (5) the addition of a new party if (a) the new party has not had a reasonable opportunity to conduct discovery and prepare for trial, or (b) the other parties have not had a reasonable opportunity to conduct discovery and prepare for trial in regard to the new party’s involvement in the case; (6) a party’s excused inability to obtain essential testimony, documents, or other material evidence despite diligent efforts; or (7) a significant, unanticipated change in the status of the case as a result of which the case is not ready for trial.  (Id.)

The court must also consider such relevant factors as: (1) the proximity of the trial date; (2) whether there was any previous continuance, extension of time, or delay of trial caused by any party; (3) the length of the continuance requested; (4) the availability of alternative means to address the problem that gave rise to the motion or application for a continuance; (5) the prejudice that parties or witnesses will suffer as a result of the continuance; (6) if the case is entitled to a preferential trial setting, the reasons for that status and whether the need for a continuance outweighs the need to avoid delay; (7) the court’s calendar and the impact of granting a continuance on other pending trials; (8) whether trial counsel is engaged in another trial; (9) whether all parties have stipulated to a continuance; (10) whether the interests of justice are best served by a continuance, by the trial of the matter, or by imposing conditions on the continuance; and (11) any other fact or circumstance relevant to the fair determination of the motion or application.  (CRC, r. 3.1332(d).) 

Moving Defendants seek a continuance to allow their new counsel to have the opportunity to properly familiarize themselves with the case and prepare for the trial.  Furthermore, Moving Defendants’ new counsel has a potential scheduling conflict should the trial last for longer than one week.  (See Declaration of Zachary T. Remijas (“Remijas Decl.”) ¶ 13-15.)  

            The Court finds that a continuance is warranted.  Furthermore, the Court notes that this case and the case styled as Ivey v. Serrano Post Acute, LLC, LASC Case No. 20STCV24087 (the “Ivey Action”) were deemed related on September 29, 2022 and the Ivey Action was transferred to this department.  On September 30, 2022, Plaintiffs filed a motion to consolidate this matter with the Ivey Action, which is set for hearing on November 7, 2022 in this department. 

            Given counsel’s current scheduling conflicts and the possibility of consolidation, the Court GRANTS the Motion. The current final status conference (“FSC”) and trial dates are VACATED. The FSC is continued to May 8, 2023 and the trial is continued to May 22, 2023.

Moving party is ordered to give notice of this ruling.

In consideration of the current COVID-19 pandemic situation, the Court strongly encourages that appearances on all proceedings, including this one, be made by LACourtConnect if the parties do not submit on the tentative. If you instead intend to make an appearance in person at Court on this matter, you must send an email by 2 p.m. on the last Court day before the scheduled date of the hearing to SMC_DEPT56@lacourt.org stating your intention to appear in person. The Court will then inform you by close of business that day of the time your hearing will be held. The time set for the hearing may be at any time during that scheduled hearing day, or it may be necessary to schedule the hearing for another date if the Court is unable to accommodate all personal appearances set on that date. This rule is necessary to ensure that adequate precautions can be taken for proper social distancing.

Parties who intend to submit on this tentative must send an email to the Court at SMC_DEPT56@lacourt.org as directed by the instructions provided on the court website at www.lacourt.org.  If the department does not receive an email and there are no appearances at the

hearing, the motion will be placed off calendar.

              Dated this 5th day of October 2022