Judge Kerry Bensinger, Case 21STCV28741 2023-04-20 Tentative Ruling

On August 4, 2021, Plaintiff, Vadim Ivanov, filed this action against defendants Chris Yarzab (“Yarzab”), Arthur J. Gallagher and Co., and Advanced Access Controls, Inc. (“Advanced Access”) (erroneously sued and served as “Advance Access Controls, Inc.”) for injuries and damages arising from a January 29, 2020 motor vehicle collision. Yarzab filed an Answer on January 10, 2022.

Plaintiff served Advanced Access with the summons and complaint on October 26, 2022. Advanced Access filed an Answer on December 7, 2022. On the same day, Advanced Access filed this motion to Vacate Trial and FSC Dates Based on Failure to Comply with CRC Rule 3.110. Alternatively, Advanced Access moves for a trial continuance for at least six months.

The complaint must be served on all named defendants and proofs of service on those defendants must be filed with the court within 60 days after the filing of the complaint. When the complaint is amended to add a defendant, the added defendant must be served and proof of service must be filed within 30 days after the filing of the amended complaint. (Cal. Rules of Court, rule 3.110, subd. (b).)

If a party fails to serve and file pleadings as required under this rule, and has not obtained an order extending time to serve its pleadings, the court may issue an order to show cause why sanctions shall not be imposed. (Cal. Rules of Court, rule 3.110, subd. (f).)

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).)

Advanced Access seeks an order to vacate the trial and FSC dates because Plaintiff did not serve Advanced Access or Yarzab with the summons or complaint within 60 days of filing the complaint. The complaint must be served on all named defendants and proofs of service on those defendants must be filed with the court within 60 days after the filing of the complaint. (Cal. Rules of Court, rule 3.110, subd. (b).) Here, Plaintiff did not serve Advanced Access until October 26, 2022[1], and Yarzab was apparently not served until November 17, 2021, and a third defendant has yet to be served. Plaintiff failed to comply with Rule 3.110. However, Advanced Access does not point to any authority that allows the Court to vacate the trial and FSC dates. Rather, Rule 3.110, subdivision (f) provides that a plaintiff’s failure to comply with the service requirements empowers a court “to issue an order to show cause why sanctions shall not be imposed.” The rule does not include as a remedy for the violation a continuance of the trial or FSC dates.

Alternatively, Advanced Access moves for a six-month trial continuance. Advanced Access argues good cause exists to continue trial because it has not had the opportunity to conduct discovery given the recent service. (See Whitfield Decl.) Trial is currently set for June 1, 2023.

Advanced Access has demonstrated good cause to continue the trial. Plaintiff served Advanced Access less than six months ago despite filing the Complaint on August 4, 2021. A trial continuance will allow the parties to conduct discovery. Further, the Court notes that this motion is unopposed.

The motion to continue trial is GRANTED. Trial is continued from June 1, 2023 to January 3, 2024 at 8:30 a.m. in Department 27. The final status conference is continued from May 19, 2023 to December 20, 2023 at 10:00 a.m. in Department 27. All discovery cut-off dates, all pretrial deadlines including discovery, expert, and motion cut-off dates are set to the new trial date of January 3, 2024.

On the Court’s own motion, the Court sets an OSC re: Proof of Service of Defendant Arthur J. Gallagher and Why Plaintiff or Plaintiff’s Counsel Should Not Be Sanction Pursuant to CRC Rule 3.110(f) for June 1, 2023 at 8:30 a.m. in Department 27.

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.

Hon. Kerry Bensinger

Judge of the Superior Court

[1] Advanced Access also disputes that Plaintiff effected proper service.