Judge: Kerry Bensinger, Case: 20STCV28343, Date: 2023-02-03 Tentative Ruling

Case Number: 20STCV28343    Hearing Date: February 3, 2023    Dept: 27

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

I.            INTRODUCTION

On July 28, 2020, plaintiff Simon Majdipour (“Plaintiff”) filed this dog bite action against defendants Marc I. Zussman and Tami C. Zussman (“Defendants”).

Trial is currently scheduled for February 28, 2023.

Plaintiff seeks an order continuing the trial and related dates and the motion for summary adjudication. Defendants oppose.

II.          LEGAL STANDARD

Trial dates are firm to ensure prompt disposition of civil cases. (Cal. Rules of Court, rule 3.1332(a).) Continuances are thus generally disfavored. (See id. rule 3.1332(b).) Nevertheless, the trial court has discretion to continue trial dates. (Hernandez v. Superior Court (2004) 115 Cal.App.4th 1242, 1246.) Each request for continuance must be considered on its own merits and is granted upon an affirmative showing of good cause. (Cal. Rules of Court, rule 3.1332(c); Hernandez, supra, 115 Cal.App.4th at 1246.) 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. (Cal. Rules of Court, rule 3.1332(c).)

The court must also consider such relevant factors as: (1) the proximity of the trial date; (2) whether there was any previous continuance, extension of time, or delay of trial caused by 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. (Id., rule 3.1332(d).)

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

Plaintiff’s objection to the Declaration of Hilary Patton is SUSTAINED because the declaration is unsigned.

Plaintiff’s request for judicial notice is GRANTED. (Evid. Code § 452.)

Plaintiff moves to continue trial and all related dates (and the motion for summary adjudication) based on the following representations: (1) Defendants did not provide Plaintiff the DVD it has lodged with the Court in opposition to the MSA, making it difficult for Plaintiff to respond to Defendant's notice of lodging; (2) Plaintiff needs time to discern whether the defendants have withheld or destroyed evidence related to the Ring recordings, or purposefully avoided its discovery obligations by not producing any further video evidence of the Incident; (3) Plaintiff filed a Notice of Errata since, due to medical issues and technical difficulties, the wrong version was submitted to the Court; (4) concerning Plaintiff’s investigation as to whether evidence is destroyed or withheld, Plaintiff currently alleges that the metadata of the only video produced was “created” on January 4, 2021, showing that the video format was created after the filing of Plaintiff’s complaint. If any other videos exist, then they would have been available for access by Defendants. Plaintiff will need to submit the evidence to this Court in reply of the MSA, which would constitute new evidence submitted in reply; (5) a continuance would aid fair judicial process since Plaintiff’s counsel of record suffered severe medical problems throughout September through November 2022; (6) since the current trial date is scheduled for February 28, 2023, a continuance of trial to discern the current issues and to allow the parties to fully brief the motion would benefit the judicial economy and all parties, especially since Defendants would require time to file a Sur-Reply.

Defendants oppose arguing that Plaintiff was served with the Notice of Lodging, has had nearly two years to conduct discovery regarding the Ring cameras, the Notice of Errata is improper, and Defendant’s’ counsel was unaware of Plaintiff’s counsel’s medical emergencies.

Here, the Court finds good cause to continue the trial date and motion for summary adjudication hearing. Plaintiff provides that while the Notice of Lodging was served, the DVD was not. Plaintiff has not replied to the opposition to the motion for summary adjudication on the merits, and has also filed a Notice of Errata with a corrected separate statement, which counsel represents was initially deficient due to medical issues. The Court is inclined to hear the motion for summary adjudication on the merits with all correct papers filed. Further, Plaintiff would like to conduct discovery as to the Ring footage and whether Defendants have withheld or destroyed evidence, or purposefully avoided its discovery obligations. The Court is unable to opine as to this issue as discovery has not been conducted and Defendants have submitted no admissible evidence in opposition.

Based on the foregoing, the Court finds good cause to continue trial and the current MSA hearing date. The motion is GRANTED.

IV.         CONCLUSION

Plaintiff’s motion is GRANTED.

Trial is continued from February 28, 2023 to _____________ at 8:30 a.m. in Department 27. The final status conference is continued from February 15, 2023 to _____________ at 10:00 a.m. in Department 27. All pretrial deadlines including discovery and motion cut-off dates are to be based on the new trial date.

The Motion for Summary Adjudication is continued from February 2, 2023 to _____________ at 1:30 p.m. in Department 27. Defendants may file a new opposition in light of the Notice of Errata and Plaintiff may reply according to the statutory deadlines based on the new hearing date.

Moving party to give notice.

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.

Dated this 3rd day of February 2023