On September 5, 2019, plaintiff Ripsime Dzhambazyn (“Plaintiff”) filed this action against defendants Triss, LLC and MR Investments (collectively, “Defendants”) arising from a November 6, 2018 slip and fall in a bathtub.  Plaintiff alleges Defendants failed to maintain the bathtub in proper condition as Plaintiff’s residential landlord. 

On August 11, 2022, the Court granted Defendants’ Ex Parte Application to Continue Trial from August 11, 2022 to March 21, 2023. 

On January 10, 2023, Defendants filed a Proposed Order and Stipulation to Continue Trial, FSC and Related Motion/Discovery Dates (“Stipulation”).  The Stipulation was signed by all parties and requested a trial continuance from the current trial date of March 21, 2023 to August 22, 2023. 

Defendants now move for an order to continue trial to August 22, 2023, or a date thereafter convenient to the Court’s calendar, and all trial related dates, to allow the parties to complete private mediation on March 23, 2023.   

No opposition has been filed.   

As a threshold matter, the Court notes that the discovery cutoff date was February 19, 2023.  Because Defendants seek to continue all trial related dates, including discovery and motions, the Court considers the instant motion as a motion to continue trial and a motion to reopen discovery. 

California Rules of Court, rule 3.1332, subdivision (b) outlines that “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.” 

Under California Rules of Court, rule 3.1332, subd. (c), the Court may grant a continuance only on an affirmative showing of good cause requiring the continuance.  Circumstances that may indicate good cause include “a party’s excused inability to obtain essential testimony, documents, or other material evidence despite diligent efforts.”  The Court should consider all facts and circumstances relevant to the determination, such as proximity of the trial date, prior continuances, prejudice suffered, whether all parties have stipulated to a continuance, and whether the interests of justice are served.  (Cal. Rules of Court, rule 3.1332, subd. (d).) 

Except as otherwise provided, any party shall be entitled as a matter of right to complete discovery proceedings on or before the 30th day, and to have motions concerning discovery heard on or before the 15th day, before the date initially set for trial of the action.  (Code Civ. Proc., § 2024.020, subd. (a).)  On motion of any party, the court may grant leave to complete discovery proceedings, or to have a motion concerning discovery heard, closer to the initial trial date, or to reopen discovery after a new trial date has been set.  This motion shall be accompanied by a meet and confer declaration demonstrating a good faith effort at informal resolution.  (Code Civ. Proc., § 2024.050, subd. (a).)    

The court shall take into consideration any matter relevant to the leave requested, including, but not limited to: (1) the necessity and the reasons for the discovery, (2) the diligence or lack of diligence of the party seeking the discovery or the hearing of a discovery motion, and the reasons that the discovery was not completed or that the discovery motion was not heard earlier, (3) any likelihood that permitting the discovery or hearing the discovery motion will prevent the case from going to trial on the date set, or otherwise interfere with the trial calendar, or result in prejudice to any other party, and (4) the length of time that has elapsed between any date previously set, and the date presently set, for the trial of the action.”  (Code Civ. Proc., § 2024.050, subd. (b).) 

Defendants argue good cause exists to grant this motion because (1) all parties have signed a Stipulation to Continue Trial, which was filed on January 10,2023, (2) the parties have scheduled a private mediation with Mediator Eleanor Barr of Barr Mediation on March 23, 2023, (3) the case is not ready for trial because discovery, including expert discovery, cannot be completed based on the March 21, 2023 trial date and March 7, 2023 Final Status Conference date, and (4) there is no lack of diligence or good faith on the part of Defendants and its counsel, as this motion was brought immediately upon the parties’ knowledge the previously filed Stipulation had not yet been signed by the Court.  (Dilts Decl., ¶¶ 3-8, 10.) 

The Court notes the Stipulation remains unsigned because the parties did not make their request for a continuance by a noticed motion or an ex parte application.  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 with supporting declarations.  (Cal.Rules of Court, rule 3.1332, subd. (b).)   

Upon review of Defendants’ noticed motion and supporting declaration, the Court finds there is good cause to continue the trial and to reopen discovery.  In light of the Court’s calendar, the first available date for a trial continuance is November 1, 2023.  Further, pursuant to the parties’ representations, discovery is reopened.