Judge: Kerry Bensinger, Case: 20STCV19525, Date: 2023-05-26 Tentative Ruling

Case Number: 20STCV19525    Hearing Date: May 26, 2023    Dept: 27

Tentative Ruling

Judge Kerry Bensinger, Department 27

HEARING DATE:     May 26, 2023                         TRIAL DATE:  July 7, 2023

CASE:                                Sylvia Ramirez v. Smart & Final, LLC, et al.

CASE NO.:                 20STCV19525

MOTION TO CONTINUE TRIAL

MOVING PARTY:               Defendant Smart & Final Stores, LLC

RESPONDING PARTY:     Plaintiff Sylvia Ramirez

I.          BACKGROUND

            On October 15, 2020, Plaintiff, Sylvia Ramirez, filed this action against Defendant, Smart & Final Stores, LLC (individually and erroneously sued and served as “Smart & Final, LLC”) for injuries arising from a slip and fall incident on Defendant’s premises.  

On April 4, 2023, the Court granted Defendant’s ex parte application to continue the trial date.  Pursuant to Defendant’s request, trial was continued from May 25, 2023 to July 7, 2023.  However, all pretrial deadlines including discovery and motion cut-off dates remained set to the May 5, 2023 trial date. 

On April 26, 2023, Defendant filed this motion to continue the trial date and all related dates.  This is the fifth request for a trial continuance.  Plaintiff opposes and Defendant replies.

As the deadline to complete discovery has already passed, the Court construes this motion as a motion to continue trial and to reopen discovery. 

II.        LEGAL STANDARDS

A.    Motion to Continue Trial

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).)¿ 

B.     Reopen Discovery

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).)¿

III.      DISCUSSION

Defendant offers a menu of reasons why the trial date and all related dates should be continued.  The reasons include:

(1) Defendant has filed motions to compel Plaintiff’s appearance at a second deposition and four additional independent medical examinations (“IME”) which are scheduled to be heard on January 10, 2024 and January 25, 2024, respectively.  Defendant argues that it is necessary to conduct another deposition and additional IMEs of Plaintiff because Plaintiff has had surgery on her lumbar spine, cervical spine, and knee since Plaintiff’s first deposition.  As such, Defendant seeks to investigate Plaintiff’s level of recovery, pain, treatment and level of activity.   The IMEs are also needed to investigate Plaintiff’s alleged mild traumatic brain injury.

(2) Plaintiff’s counsel informed Defendant on February 10, 2023 that Plaintiff has 37 medical providers and her medical expenses total $1,150,000.  Plaintiff’s counsel had indicated in October of 2022 that Plaintiff’s medical expenses totaled $766,928.83.

(3) Defense counsel, Andrew J. Ulwelling, was reassigned to this case on February 14, 2023.

(4) Defendant is in the process of subpoenaing Plaintiff’s medical bills and records from her 37 medical providers, some of whom are located in Nevada and Colorado.

(4) The parties have yet to attend a private mediation; completing the foregoing discovery would allow the mediation to be meaningful. 

Notwithstanding the foregoing, Defendant fails to explain why the foregoing discovery was not completed timely.  The lack of diligence is palpable, and the lack of justification noticeable.  Defendant’s lack of diligence is not mitigated because of the increased damages.  Defendant’s motion states that Plaintiff’s counsel informed Defendant in October of 2022 that Plaintiff’s medical expenses already exceeded $750,000.  Certainly, incentive enough to conduct the requested discovery.

Plaintiff’s opposition also highlights Defendant’s lack of diligence in completing discovery.  Plaintiff provided supplemental discovery responses on August 22, 2022 which identified the surgeons who conducted her knee surgery and spine surgeries.  However, Defendant waited until April of 2023 to file motions to compel Plaintiff’s second deposition and additional IMEs.  Defendant indicated as early as February 10, 2022 a desire to go to mediation.  Yet, Defendant has only recently provided dates for mediation.  Additionally, Defense counsel, Mr. Ulwelling, handled this case prior to leaving the law firm, and again, upon his return.  In Mr. Ulwelling’s eleven-month absence, Defendant did not make diligent efforts to complete the discovery it now claims is necessary.  Defendant cannot claim necessity when it waited until the eleventh hour.  Moreover, denying a trial continuance will not prejudice Defendant.  Plaintiff represents the parties have an agreement to designate experts by May 31, 2023 (despite discovery being closed) if Defendant’s motion is denied.  

Based on the foregoing, the Court finds good cause does not exist to continue trial or reopen discovery.

IV.       CONCLUSION 

The motion to continue trial and reopen discovery is DENIED.      

Moving party to give notice. 

Dated:   May 26, 2023                                                ___________________________________

                                                                                    Kerry Bensinger

                                                                                    Judge of the Superior Court

            Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org.  Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter.  Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue.  If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.