Department 30, Spring Street Courthouse

December 21, 2022 

20STCV27069

Motion to Continue Trial filed by Defendants/Cross-Complainants Rocket Film, LLC and Kenneth Arlidge

Good cause having been shown, the motion is granted.

The current trial and FSC dates are advanced and vacated.

Trial is set for January 12, 2024 at 8:30 a.m. in Department 30.

FSC is set for December 29, 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 January 12, 2024.

To the extent that the parties wish to participate in mediation, they are ordered to do so prior to the FSC.

The parties should not anticipate any further continuances. This is a firm trial date and the parties should be prepared to proceed. 

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.

 

This is an action for premises liability arising from an incident where a loudspeaker fell on Plaintiff’s head while she was on Defendants’ premises. Plaintiff Lauren Hanson filed her Complaint against Defendants Rocket Film, LLC and Kenneth Arlidge on July 20, 2020.

On September 21, 2020, Defendants filed a Cross-Complaint against Christopher Gee.

On January 19, 2021, Cross-Defendant Christopher Gee filed a Cross-Complaint against Rocket Film. LLC and Kenneth Arlidge. 

On December 7, 2022, Rocket Film, LLC filed Doe amendments naming Gilbert Dembo, Gilbert Dembo and Associates, Dembo Realty, Barbara Dembo, Dembo Realty, Barbara C. Dembo, Co-Trustee of the Dembo Family Trust, and Creative Visions Foundation as Cross-Defendants in this case.

On November 23, 2022, Defendants/Cross Complainants Rocket Film, LLC and Kenneth Arlidge filed the instant motion to continue trial

Trial is currently set for February 16, 2023.

Defendants seek a continuance of one year to February 16, 2024 on the grounds that (1) new parties have been added to the case who require time to conduct discovery, (2) Defendants require more time to obtain testimony in discovery in time for trial, and (3) the new parties mean that the case is not ready for trial. Defendants also state that they reserved the earliest hearing for a motion for summary judgment which takes place after the current trial date.

Plaintiff argues that there is no good cause for a continuance because Defendants do not explain why it took so long to determine the existence of the newly added Cross-Defendants, determine that a potted plant was involved in the accident, determine the identity of the plant’s owners and determine the identities of the property owners. Plaintiff argues that the continuance is Defendants’ attempt to file a late motion for summary judgment. Plaintiff alleges that a one-year delay in trial will prejudice Plaintiff because it will delay her opportunity to have this matter adjudicated be compensated for her injuries.

Defendants argue that the delay in adding cross-defendants to this case was justified because the original attorney working on this matter committed suicide in August 2021. After a new attorney was assigned to the case, Defendants deposed Cross-Defendant Christopher Gee, and discovered that a potted plant contributed to the fall. Defendants argue that they named the Cross-Defendants within statutory deadlines. 

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.

“A trial court may not refuse to hear a summary judgment motion filed within the time limits of section 437c . . . [l]ocal rules and practices may not be applied so as to prevent the filing and hearing of such a motion.” (Sentry Ins. Co. v. Superior Court (1989) 207 Cal.App.3d 526, 529, citing Wells Fargo Bank v. Superior Court (1989) 206 Cal.App.3d 918.) 

Defendants seek a continuance of one year to allow newly added cross-defendants to complete discovery, obtain Plaintiff’s medical records pertaining to her ongoing treatment, complete a second IME of Plaintiff, and to have their motion for summary judgment heard before trial.

Defendants added new Cross-Defendants to this action in December 2022. Defendants’ counsel testifies that they only discovered that the subject accident was caused in part by a potted plant in April 2022, when he deposed Christopher Gee, who gave credible testimony revealing that a potted plant knocked into the speaker that fell on Plaintiff. (Sarames Suppl. Decl., ¶3.) Defendants allege the delay was justified because Defendants’ original counsel in this case, Veatch Carlson, committed suicide in August 2021 (Id., ¶2.) After a new attorney was assigned, the witnesses interviewed during Defendants’ investigation disagreed as to the cause of the accident and no witness testified to seeing the plant knock into the speaker until Gee’s deposition in April 2022. (Id., ¶3.) 

Defendants’ counsel also testifies that they require more time to complete discovery pertaining to Plaintiff’s ongoing treatment for injuries caused by the falling speaker. (Sarames Dec., ¶5.) Defendants also intend to take a second IME of Plaintiff, but require more time to bring a motion compelling this IME. (Id., ¶6.) Lastly, Defendants reserved a hearing date for their motion for summary judgment as to Defendant Arlidge, but the earliest hearing date was for November 2023, which falls beyond the current trial date. (Id., ¶¶7-8.)

The factors weigh in favor of granting the continuance. The new Cross-Defendants in this action have not had the opportunity to engage in discovery. It would be in the interests of justice to allow them to complete discovery. Defendants require additional time to complete discovery and file a motion to compel a second IME. Again, it would be in the interests of justice to allow Defendants to complete discovery. Defendants also show that their motion for summary judgment is set for hearing in November 2023, which falls beyond the current trial date in February 2023. Defendants would be prejudiced if their motion for summary judgment cannot be heard before trial. This would be the second continuance in this matter. The continuance would delay trial and Plaintiff’s opportunity to recover damages for her injuries. However, given the significant factors weighing in favor of a continuance, the motion is granted.

With respect to the alleged delay in naming cross-defendants in this action, the Court will not rule on the merits of Plaintiff’s arguments at this time. To challenge Defendants’ Doe amendments, Plaintiff must file an evidence-based motion. (Code Civ. Proc., section 474.) 

Given the good cause demonstrated above, the Court grants Defendants’ motion to continue trial.