Judge Jill Feeney, Case BC709310 2022-08-08 Tentative Ruling

Judge: Jill Feeney, Case: BC709310, Date: 2022-08-08 Tentative Ruling

Case Number: BC709310 Hearing Date: August 8, 2022 Dept: 30

Department 30, Spring Street Courthouse

August 8, 2022

BC709310

Motion to Continue Trial

DECISION

The motion is denied.

Moving party is to provide notice and to file proof of service of such notice within five court days after the date of this order.

Background

This is an action for premises liability and strict liability arising from a dog attack which took place in July 2017. Plaintiff Sean Lumpkin filed his complaint against James Barros on June 8, 2018.

On June 13, 2022, Plaintiff filed his motion to continue trial.

Trial is set for October 20, 2022. The FSC is set for October 6, 2022.

Trial was previously continued on August 12, 2019, October 29, 2019, January 22, 2020, June 25, 2020, January 13, 2021, and November 19, 2021.

Summary

Moving Arguments

Plaintiff requests that trial and related trial dates be continued 90 days. Plaintiff argues that good cause for the continuance exists because he plans to file a motion for summary judgment and reserved the earliest possible hearing date of December 5, 2022 which is after trial.

Legal Standard

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

Plaintiff argues good cause exists to continue trial for 90 days because a continuance would allow the Court to hear his motion for summary judgment before trial. Plaintiff supports his argument with a declaration from its Counsel, John Habashy. Plaintiff intends to file a motion for summary judgment and reserved the first available hearing date of December 5, 2022. (Habashy Decl., ¶12.) Counsel states it is not possible to advance the hearing on Plaintiff’s motion for summary judgment with sufficient statutory notice. (Id., ¶13.) Counsel states a motion for summary judgment is the most efficient way for Plaintiff to resolve the matter. (Id., ¶8.) Trial is currently set for October 20, 2022. This would be the sixth continuance in this case. Three of the continuances were requested by Vickaid Arms Homeowners Association, which was previously dismissed. (Id., ¶16.) Counsel states this is the last continuance needed for any reason. (Id.)

The last day for Plaintiff to file a motion for summary judgment was June 7, 2022. The last day for the Court to hear a motion for summary judgment is September 20, 2022. Plaintiff intended to file but did not file their motion for summary judgment because the first available hearing date was after the trial date. (Motion, p. 4.) Plaintiff’s counsel states he intended to file the motion for summary judgment “in the coming weeks” after July 13, 2022. (Habashy Decl., ¶9.) Plaintiff’s motion for summary judgment was already untimely when this motion to continue trial was filed in July 2022. Plaintiff has not filed a motion for summary judgment thus far.

Trial has already been continued six times. The deadline to file a motion for summary judgment had already passed at the time Plaintiff made a reservation for a hearing on the motion. Plaintiff has not justified the delay in filing his motion for summary judgment. This case is nearly four years old and there have already been six continuances. Accordingly, the Court finds Plaintiff has not shown good cause for a continuance.