Judge Kerry Bensinger, Case Number: 21STCV21624, Date: 2023-05-10 Tentative Ruling

On August 3, 2021, Plaintiff Sandra Gelfen (“Plaintiff”) sued Defendant City of Los Angeles (“City of Los Angeles”) for a slip-and-fall that occurred on or about June 17, 2019, at 1615 S. Wilton Place, Los Angeles, California 90019. She was 80 years old at the time.

On January 10, 2022, the City of Los Angeles cross-complained against ROE defendants.

On September 20, 2022, Plaintiff amended her complaint to add Defendant Hannah Howard (“Howard”) as a defendant. Plaintiff served Howard on December 6, 2022. On September 21, 2022, the City of Los Angeles also amended its complaint to add Howard as a defendant.

On January 10, 2023, Howard cross-complained against the City of Los Angeles and ZOE defendants.

A trial court has broad discretion in considering a request for a trial continuance.¿ (Pham v. Nguyen (1997) 54 Cal.App.4th 11, 13-18.)¿ California Rules of Court, rule 3.1332 sets forth factors for the Court to consider in ruling on a motion to continue trial. Specifically, California Rule of Court, rule 3.31332(c) provides that the Court may grant a continuance only on an affirmative showing of good cause requiring the continuance, circumstances for which include: (1) the unavailability of an essential lay or expert witness because of death, illness, or other excusable circumstances; (2) the unavailability of a party because of death, illness, or other excusable circumstances; (3) the unavailability of trial counsel because of death, illness, or other excusable circumstances; (4) the substitution of trial counsel, but only where there is an affirmative showing that the substitution is required in the interests of justice; (5) the addition of a new party if certain factors are met; (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.

Separately, California Rule of Court, rule 3.31332(d) provides that aside from the affirmative showing of good cause discussed above, the Court may grant a continuance after considering other factors which may include: (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.

Howard argues that because she became a party to the lawsuit after it started, she needs more time to conduct discovery. (Notice of Motion and Motion, pg. 2, lines 8-25.) Howard’s counsel states that she has not yet received medical records she subpoenaed regarding Plaintiff, and no depositions have been conducted. (Hurley Decl. ¶ 5.)

In opposition, Plaintiff argues that Howard has had eight months to conduct discovery. (Opposition, pg. 6, lines 5-6.) Plaintiff argues that she produced medical records on January 19, 2023, and that Howard waited until March 3, 2023, and March 22, 2023, to issue subpoenas for medical records. (Opposition, pg. 6, lines 15-20.) Plaintiff also argues that her counsel had informed Howard’s counsel that Plaintiff’s deposition had been taken on July 26, 2022. (Opposition, pg. 6, lines 22-23.) She provided her with the court report’s information so she could order a transcript. (Opposition, pg. 6, lines 23-24.) She also informed her that Plaintiff suffers major memory issues, does not recall the incident, and that the first session of her deposition ceased for this reason. (Opposition, pg. 6, lines 24-27.) She advances her counsel’s declaration in support of her arguments. (Decl. Darbinyan ¶ 22-25, 27, Exs. F, G, H.)

Additionally, Plaintiff argues that she will file a motion for preference if the court grants the instant motion. (Opposition, pg. 7, lines 9-26; Decl. Darbinyan ¶ 30.)[1]
Based upon the forgoing, the motion is denied without prejudice. Counsel should be able to accomplish what is outstanding prior to the current trial date. And should certain discovery still need to be completed, counsel may narrow the issues and seek a brief continuance to accommodate what must still be done.

The Court will hear from counsel regarding a discovery plan to complete discovery in a timely manner and before the current trial date or a brief continuance to accommodate what cannot be accomplished.

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.

[1] Plaintiff fails to provide any explanation why such a motion was not filed earlier. The Court notes there is currently a hearing date set for the motion reserved for August 8, 2023.