Judge: Jill Feeney, Case: 20STCV10667, Date: 2022-09-13 Tentative Ruling
Case Number: 20STCV10667 Hearing Date: September 13, 2022 Dept: 30
Department 30, Spring Street Courthouse
September 13, 2022
20STCV10667
- Motion for Reconsideration of Court Order Denying Motion for Summary Judgment -Motion to Continue Trial filed by Defendant Celebrity Casinos, Inc.
- Motion to Continue Trial filed by Defendant Celebrity Casinos, Inc.
DECISION
The motion for reconsideration is denied.
The motion for a continuance of the trial date is granted.
The current trial and FSC dates are advanced and vacated.
Trial is set for July 26, 2023 at 8:30 a.m. in Department 30.
FSC is set for July 12, 2023 at 10:00 a.m. in Department 30.
Motion cutoff date, discovery cutoff date, expert exchange date and all other dates are to comport with a trial date of July 26, 2023.
To the extent that the parties wish to participate in mediation, they are ordered to do so prior to the Final Status Conference.
The parties should not anticipate any further trial continuances. The July 26, 2023 date is a firm trial date and the parties should be prepared and ready to proceed with trial on said date.
Moving party is ordered to provide notice and to file proof of service of such notice within five court days after the date of this order.
Background
This action arose out of an incident which occurred on October 18, 2019. Plaintiff Michael Slocum (“Plaintiff Michael” or “Michael”) visited Defendant’s business, Crystal Hotel and Casino. Michael walked to the parking lot to retrieve something from his cousin’s vehicle. Security guards for the hotel and casino confronted him, believing he was stealing from the vehicle. Michael alleges they drew their firearms and aimed at him. The guards escorted Michael to a private room in the casino, where one guard struck Michael in the back of his head, causing him to fall to the ground. Michael’s head began bleeding as a result of the fall. Michael’s cousin stopped the altercation and Michael left the premises to seek medical treatment for a laceration and a concussion. Michael claims to experience daily headaches and other unknown injuries.
Plaintiff Michael asserts causes of action based on a theory of respondeat superior for: negligent hiring, supervision, and retention of employee; assault; and battery. His spouse, Kendra Slocum (“Plaintiff Kendra” or “Kendra”) asserts a cause of action for loss of consortium.
On March 17, 2022, Defendant Celebrity Casinos, Inc. (“Defendant” or “Celebrity”) filed a motion seeking summary judgment or, in the alternative, summary adjudication which was denied on July 19, 2022. The Court served the minute order on Celebrity via mail on July 19, 2022. Celebrity filed the instant motion for reconsideration on August 2, 2022.
On August 19, 2022, Celebrity filed a motion to continue trial.
Summary
Moving Arguments
Celebrity argues that the Court incorrectly relied on the ostensible agency theory and Kaplan v. Coldwell Bank because ostensible agency requires estoppel, which Plaintiffs did not have any evidence of. Celebrity contends that there is no evidence that Michael relied on any of Celebrity’s alleged representations. Additionally, the facts of Kaplan are distinguishable from the instant action.
Celebrity also moves to continue trial because Defendant American Curvet Investments LLC (“ACI”) filed a motion to set aside default, which is scheduled to be heard on December 6, 2022, two months after the current trial date.
Opposing Arguments
In opposition, Plaintiffs argue that Celebrity’s motion should be denied because Celebrity failed to include an affidavit in support of the motion. Additionally, Plaintiffs argue that Celebrity does not allege any new facts, circumstances, or law that would warrant reconsideration under Code Civ. Pro section 1008, subd. (a).
Plaintiffs oppose Celebrity’s motion to continue trial because an 8 month continuance is unreasonable, trial is only six weeks from the date of the motion to continue, there have already been two continuances in this matter, Plaintiffs will be prejudiced by further delay in this matter, a continuance would impact the Court’s calendar, and ACI’s motion to set aside is not guaranteed to be granted.
Reply Arguments
Celebrity argues that Plaintiffs’ argument regarding ostensible agency were raised for the first time at the hearing on the motion for summary judgment. Celebrity argues it was not able to respond to Plaintiff’s argument and requests that the July 19, 2022 order be revoked or in the alternative that it be allowed to submit supplemental briefing.
Celebrity also argues that it filed the instant motion to continue trial as early as possible after discovering a motion to set aside default had been filed. Additionally, Celebrity argues it will be prejudiced if it is forced to proceed with trial before ACI’s default is set aside because it is the actual employer of the two security guards involved in the dispute.
Legal Standard
Reconsideration
Code of Civil Procedure section 1008 provides, in pertinent part:
“(a) When an application for an order has been made to a judge, or to a court, and refused in whole or in part, or granted, or granted conditionally, or on terms, any party affected by the order may, within 10 days after service upon the party of written notice of entry of the order and based upon new or different facts, circumstances, or law, make an application to the same judge or court that made the order, to reconsider the matter and modify, amend, or revoke the prior order. The party making the application shall state by affidavit what application was made before, when and to what judge, what order or decisions were made, and what new or different facts, circumstances, or law are claimed to be shown.
(b) A party who originally made an application for an order which was refused in whole or in part, or granted conditionally or on terms, may make a subsequent application for the same order upon new or different facts, circumstances, or law, in which case it shall be shown by affidavit what application was made before, when and to what judge, what order or decisions were made, and what new or different facts circumstances, or law are claimed to be shown. For a failure to comply with this subdivision, any order made on a subsequent application may be revoked or set aside on an ex parte motion.
…
(e)¿This section specifies the court’s jurisdiction with regard to applications for reconsideration of its orders and renewals of previous motions, and applies to all applications to reconsider any order of a judge or court, or for the renewal of a previous motion, whether the order deciding the previous matter or motion is interim or final. No application to reconsider any order or for the renewal of a previous motion may be considered by any judge or court unless made according to this section.”
(Code Civ. Proc. section 1008, subds. (a), (b), (e).)
A motion for reconsideration under Section 1008 requires that the moving party present new or different facts that were not previously considered by the Court. (New York Times Co. v. Superior Court (2005) 135 Cal.App.4th 206, 212-13.) However, the burden under Section 1008 “is comparable to that of a party seeking a new trial on the ground of newly discovered evidence: the information must be such that the moving party could not, with reasonable diligence, have discovered or produced it at the trial.” (Id.; Even Zohar Construction & Remodeling, Inc. v. Bellaire Townhouses, LLC (2015) 61 Cal.4th 830, 833 [finding that Section 1008 imposes the special requirement of having to not only show new or different facts, circumstances, or law, but also to “show diligence with a satisfactory explanation for not presenting the new or different information earlier…”].) A disagreement with a ruling is not a new fact that will support the granting of a motion for reconsideration. (Gilberd v. AC Transit (1995) 32 Cal.App.4th 1494, 1500.)
Although parties may move for reconsideration only as authorized by Code of Civil Procedure section 1008, the statute “do[es] not limit the court's ability, on its own motion, to reconsider its prior interim orders so it may correct its own errors.” (Le Francois v. Goel¿(2005) 35 Cal.4th 1094, 1107.)
Continue Trial
Pursuant to California Rules of Court, rule 3.1332, subdivision (a), “[t]o ensure the prompt disposition of civil cases, the dates assigned for a trial are firm. All parties and their counsel must regard the date set for trial as certain.” Under California Rules of Court, rule 3.1332, subdivision (b), “[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.”
California Rules of Court, rule 3.1332, subdivision (c) states that “[a]lthough continuances of trials are disfavored, each request for a continuance must be considered on its own merits. The court may grant a continuance only on an affirmative showing of good cause requiring the continuance.” 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. (California Rules of Court, rule 3.1332(c).)
California Rules of Court, rule 3.1332, subdivision (d) sets forth more factors that are relevant in determining whether to grant a continuance:
(1) The proximity of the trial date;
(2) Whether there was any previous continuance, extension of time, or delay of trial due to 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.
Discussion
Reconsideration
Celebrity’s motion for consideration is timely. Motions to reconsider must be filed within 10 days after service upon the party of written notice of entry of the order. (Code Civ. Pro. 1008 subd. (a).) Here, Celebrity was served with written notice of the denial of summary judgment via mail on July 19, 2022. The last day for Celebrity to file a motion to reconsider was extended to August 5, 2022 because Celebrity was served via mail. (Code Civ. Pro. 1013, subd. (a).) Celebrity filed the instant motion to reconsider on August 2, 2022. Thus, Celebrity’s motion is timely.
Celebrity failed to file an affidavit in support of its motion containing information about what application was made before, when and to what judge, what order or decisions were made, and what new or different facts, circumstances, or law are claimed to be shown, as required by Code Civ. Pro. 1008 subd. (a).
Even if Celebrity’s motion complied with procedural requirements, Celebrity does not allege new facts, circumstances, or law which would warrant reconsideration. Celebrity’s motion to reconsider primarily argues (1) there was no ostensible agency relationship between the security guards and Celebrity because there was no evidence that Plaintiffs relied on any representation made by Celebrity and (2) that Celebrity was not given sufficient notice of Plaintiffs’ theory of liability based on ostensible agency.
As the July 19, 2022 minute order reflects, the Court found genuine issues of material fact as to whether an ostensible agency relationship existed between Celebrity and the security guards. Whether an ostensible agency relationship exists may be implied from the circumstances and is a question of fact to be determined by the fact finder at trial. (Kaplan v. Coldwell Banker Residential Affiliates, Inc. (1997) 59 Cal.App.4th 741, 743.) For summary judgment purposes, it is sufficient to observe that a triable issue of material fact is present. (Id.)
Here, Plaintiffs alleged facts that Celebrity and the hotel held themselves to be one entity and that Celebrity neglected to distinguish itself as separate. This representation and Michael Slocum’s reliance on the representation to infer that the security guards were employed by Celebrity are sufficient to show a triable issue of material fact over whether an ostensible agency relationship exists between Celebrity and the security guards. Celebrity, in its motion for reconsideration, disagrees with the Court’s finding and does not allege new facts, circumstances, or law that would warrant reconsideration.
Celebrity contends that reconsideration is required because Plaintiffs did not raise the issue of ostensible agency in its opposition to the motion for summary judgment. This is not true. Plaintiff argued in their opposition that there was an “implied agency relationship” between Defendant Celebrity and the security guards. (Plaintiffs ‘Opposition at pg. 5; Plaintiffs’ Separate Statement #2, ) Moreover, Plaintiffs set forth facts Plaintiffs believed created a genuine issue of material fact regarding the existence of an ostensible or implied agency relationship. (Plaintiffs’ Opposition at pg. 5; Plaintiffs’ Separate Statement at #4 and #5.)
At oral argument, Plaintiffs did cite to the Kaplan case for the first time. Kaplan is a case addressing the application of ostensible agency. Plaintiffs did not cite to different evidence or raise a new theory of liability at oral argument.
Here, Defendant Celebrity now argues that Kaplan demands a different result. Defendant does not allege new facts, circumstances or law that would warrant reconsideration.
But assuming arguendo that Defendant’s arguments with respect to Kaplan are properly considered here, the court does not find them persuasive for the reasons set forth by Plaintiffs in their opposition.
Continue Trial
Celebrity seeks a continuance of 8 months so that trial can proceed after ACI’s motion to set aside default is heard. Celebrity supports its motion with emails between the Celebrity’s counsel and counsel for Plaintiff, which show Celebrity discovered the existence of ACI’s motion to set aside on August 3, 2022. (Motion to Continue, Exh. 3.) Thereafter, Celebrity reserved the earliest hearing date for a motion to continue. (Glass Decl., ¶2.)
In opposition, Plaintiffs state that ACI’s motion to set aside default lacks merit and a continuance is not justified because ACI has not been added as a new party, further delay would prejudice Plaintiffs, an 8-month continuance is unreasonable, and there have already been two previous continuances in this matter.
Celebrity has shown good cause for a continuance. Celebrity would be significantly prejudiced if ACI, as the actual employer of the security guards at issue in this case, is not included in trial proceedings in the event that default is set aside. Additionally, the interests of justice would be best served if trial is continued until after the outcome of ACI’s motion because the matter will be more fully resolved on the merits. Whether ACI’s motion has merit will be determined at the hearing on the motion scheduled in December 2022.
