Department 30, Spring Street Courthouse

December 20, 2022

21STCV26887

Motion to Continue Trial filed by Defendants Edward and Nicole Minkow

The motion is granted.

The FSC and trial dates are advanced and vacated.

Trial is set for March 21, 2023 at 8:30 a.m. and the FSC is set for March 7, 2023.

All discovery and motion cutoff dates, as well as all other dates, are to comport with the new trial date.

If the parties wish to mediate, they are ordered to do so prior to the FSC.

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

 

This is an action for negligence arising from a vehicle-pedestrian collision which took place in July 2020. Plaintiff Eduardo Jr. Sandoval filed his Complaint against Defendants Samuel and Nicole Minkow on July 21, 2021. 

Defendants Samuel and Nicole Minkow filed the instant motion to continue trial on November 17, 2022.

Trial is currently set for January 18, 2023.

Moving Arguments 

Defendants argue good cause exists for a continuance because the parties intend to participate in mediation in April 2023. Additionally, Defendants’ counsel has jury duty set to begin two days before the current trial date.

Opposing Arguments

Plaintiff argues that Defendants are only seeking to delay trial. He agreed to mediation on the condition that trial move forward on the current date. Additionally, Plaintiff argues that Defendants’ counsel’s jury service is too speculative to warrant a 4-month trial continuance.

Reply Arguments

Defendants reiterate arguments from their motion.

 

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 argue good cause exists for a continuance because the parties intend to participate in mediation and because Defendants’ counsel has jury duty set for two days before the current trial date.

Defendants allege that the parties agreed to participate in mediation and agreed to three potential mediators, including John Raleigh. (Roth Decl., ¶3.) However, Mr. Raleigh’s schedule was full, and the parties cannot complete mediation before January 18, 2023 because of the approaching holidays. (Roth Decl., ¶5-6.) Defendants request a continuance to April 2023 to allow the parties to participate in mediation.

Defendants’ argument is without merit because it appears that Plaintiff is unwilling to proceed with mediation if it means delaying trial. Plaintiff’s counsel testifies that Defendants’ counsel ignored Plaintiff’s requests for alternate mediators or other solutions given Mr. Raleigh’s unavailability. (Ksajikian Decl., ¶5-6.) Plaintiff only agreed to mediate on the condition that the parties keep the January 2023 trial date. (Id., ¶5.) Because it appears Plaintiff no longer wishes to mediate, this argument does not show good cause for a continuance.

Defendants next allege that good cause exists for a continuance because Defendants’ counsel has jury duty set to begin on January 16, 2023, two days before the current trial date. (Roth Decl., ¶8.) Because Defendants’ counsel may be unavailable during trial due to her jury service, trial will be briefly continued until after her jury service.