Judge: Holly J. Fujie, Case: 21STCV14481, Date: 2022-08-31 Tentative Ruling

Case Number: 21STCV14481    Hearing Date: August 31, 2022    Dept: 56

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

AND RELATED CROSS-ACTION

MOVING PARTY: Plaintiff/Cross-Defendant Joyce Faye Atlas (“Atlas”)

RESPONDING PARTY: Defendant/Cross-Complainant Mike H. Davidyan (“Davidyan”)

This order concerns two matters: (1) a demurrer (the “Demurrer”) to the FAXC filed by Atlas; and (2) a motion to continue trial (the “Motion”) filed by Atlas.  The Court has reviewed the moving, opposition and reply papers filed in connection to the Demurrer.  No opposition papers were filed in response to the Motion.  Any opposition papers were required to have been filed and served at least nine court days before the hearing under California Code of Civil Procedure section 1005, subdivision (b).

BACKGROUND

This action arises out of a dispute concerning the ownership of real property (the “Property”).  On April 16, 2021, Atlas filed a complaint (the “Complaint”) alleging: (1) fraud; (2) undue influence; (3) financial abuse; (4) quiet title; (5) cancellation of instruments; (6) return of real property to elder/dependent adult; and (7) intentional infliction of emotional distress.

Davidyan’s currently operative first amended cross-complaint (the “FAXC”) alleges: (1) specific performance for breach of contract to sell real property; (2) breach of written contract; (3) breach of release agreement; (4) trespass to property; (5) negligence; (6) declaratory relief; (7) and promissory estoppel or equitable estoppel.

The relevant allegations of the FAXC are as follows: Plaintiff owned the Property, which was scheduled to be sold in a tax lien sale on or about October 17, 2016.  (FAXC ¶ 6.)  Due to her inability to make necessary tax payments, Atlas met with Davidyan in October 2016 to discuss the sale of the Property.  (FAXC ¶¶ 6-7.)  Davidyan agreed to purchase the Property and assume its associated debts. (FAXC ¶ 7.)  On October 10, 2016, Davidyan and Atlas entered into a purchase and sale contract for the Property (the “Purchase Agreement”).  (FAXC ¶ 8, Exhibit A.)  Atlas signed the grant deed transferring the Property to Davidyan and Davidyan recorded the deed on October 14, 2016.  (FAXC ¶ 9, Exhibit B.)  Also on October 10, 2016, Atlas executed a Release of Claims (the “Release Agreement”) which provided that she agreed to release all claims against Davidyan related to the Property.  (See FAXC ¶ 10, Exhibit C.) 

After the sale, Atlas asked Davidyan if she could continue to live at the Property until she could find suitable alternative housing.  (FAXC ¶ 11.)  Davidyan agreed, provided that Atlas maintained the Property while she lived there.  (Id.)  In early 2018, Davidyan realized that Atlas failed to maintain the Property or remain for a reasonable amount of time; as a result, he requested that she begin paying rent.  (FAXC ¶ 12.)  Because she refused to pay rent, vacate, or maintain the Property, Davidyan filed an unlawful detainer action in 2020.  (FAXC ¶ 14.)  Atlas thereafter initiated this lawsuit.  (FAXC ¶ 15.)  Atlas damaged the Property by failing to make repairs or allowing Davidyan to access the Property to make repairs.  (FAXC ¶¶ 16, 19.)  In addition, Davidyan has been sued by a third party who alleges that she was bit by a dog that Atlas keeps on the Property.  (FAXC ¶ 18.) 

Atlas filed a demurrer (the “Demurrer”) to the first through seventh causes of action alleged in the FAXC.  Davidyan filed an opposition (the “Opposition”) and a proposed second amended cross-complaint (the “SAXC”).  The Opposition provides that Davidyan intends to pursue only the second, third, and seventh causes of action alleged in the FAXC.  This order reflects the Court’s review of the sufficiency of the allegations in the currently operative FAXC.  The Court exercises its discretion to consider the filing of the proposed SAXC in connection with an Opposition to the Demurrer that reflects an intent not to pursue certain claims in the FAXC as a request for leave to file the SAXC and grants said request. 

Davidyan is given leave to file and serve the SAXC within five court days of the date of this order.  Atlas has twenty days from the date of such filing and service to file a response thereto. 

Atlas additionally filed the Motion, which requests that the Court continue the trial in this matter to August 7, 2023 or to another later time that is convenient to the Court. 

MOTION TO CONTINUE TRIAL

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).) 

Atlas requests that the Court continue the trial in this matter because discovery remains ongoing, in part due to Davidyan’s failure to comply with her discovery requests.  (See Declaration of David Pallack (“Pallack Decl.”).)  The Motion also indicates that, depending on the substance of Davidyan’s forthcoming discovery responses, Atlas may seek to amend her Complaint.   The Court also notes that it has granted leave for Davidyan to file his SAXC, such that the case is not currently at-issue. 

The Court finds that there is good cause for continuing the trial.  For this reason and because it is unopposed, the Court GRANTS the Motion.  (Sexton v. Superior Court (1997) 58 Cal.App.4th 1403, 1410.)  The current final status conference (“FSC”) and trial dates are VACATED. The FSC is continued to July 24, 2023 and the trial is continued to August 7, 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 31st day of August 2022