Judge: Kerry Bensinger, Case: 21STCV10790, Date: 2023-02-09 Tentative Ruling

Case Number: 21STCV10790    Hearing Date: February 9, 2023    Dept: 27

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

I.            INTRODUCTION

On March 19, 2021, plaintiff Jhon E. Gonzalez-Guerrero (“Plaintiff”) filed this negligence action against defendant Allen D. Ye (“Defendant”).

Trial is currently scheduled for March 23, 2023. Trial related discovery dates are still related to the previous November 14, 2022 trial date.

Defendant seeks an order continuing the trial and related dates to April 24, 2023 or a date thereafter. Plaintiff opposes.

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

Defendant moves to continue trial and all related dates to April 24, 2023 or a date thereafter. Defendant represents that good cause exists for a continuance in order to permit the hearing on Defendant’s motion to augment his expert witness list, currently scheduled for February 15, 2023, to be heard sufficiently before the trial date and for additional expert discovery to be conducted. The motion was filed due to counsel substituting in on November 1, 2022 and determining after review of records to augment Defendant’s expert witness designation to include anesthesiology and pain medicine physician, Mark Wallace, M.D., who will provide opinions pertaining to Plaintiff’s past medical treatment, including a spinal cord stimulator trial and permanent spinal cord stimulator implant with thoracic laminectomy, and future medical treatment pertaining to these surgical procedures.

Defendant further makes this motion pursuant to California Rules of Court, Rule 3.1332(c) and (d) on the grounds that Mr. Ye’s trial counsel will be unavailable during the current trial date due other trials currently pending: Hermiz v. 655 Greystone, LLC, et al., San Diego County Superior Court Case No. 37-2020-00044995-CU-PO-CTL, which is set to start March 3, 2023 and is estimated to last at least six weeks; and Dadashzadeh v. Gomez, et al., Orange County Superior Court Case No. 30-2019-01118728, which is set to start March 10, 2023, is estimated to last at least three weeks, and the Court advised that the trial date would not be continued again.

Plaintiff recently filed a motion to compel which is calendared to be heard on March 3, 2023.  

 Accordingly, the motion is GRANTED.

IV.         CONCLUSION

Defendant’s motion is GRANTED. Trial is continued from March 23, 2023 to _____________ at 8:30 a.m. in Department 27. The final status conference is continued from March 9, 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.

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 9th day of February 2023