Judge: Kerry Bensinger, Case: 21STCV37132, Date: 2023-08-11 Tentative Ruling

Case Number: 21STCV37132    Hearing Date: August 11, 2023    Dept: 27

Tentative Ruling

Judge Kerry Bensinger, Department 27

HEARING DATE:     August 11, 2023                     TRIAL DATE:  September 28, 2023

CASE:                                Rodolfo Sanchez, et al. v. Adrian Villasenor, et al.

CASE NO.:                 21STCV37132

MOTION TO CONTINUE TRIAL

MOVING PARTY:                   Defendant Rokstad Power, Inc. Al Asher and Sons, Inc., and Adrian Villasenor

RESPONDING PARTY:     Plaintiffs Rodolfo Sanchez and Erlinda C. Sanchez

I.          BACKGROUND

            On October 7, 2021, Plaintiffs, Rodolfo Sanchez and Erlinda Sanchez, filed a Complaint against Defendants, Adrian Villasenor, Julio Cesar De Rojas, Jr., Al Asher and Sons, and Rokstad Power, Inc., for injuries arising from a motor vehicle accident.

            On June 29, 2023, Adrian Villasenor, Al Asher and Sons, and Rokstad Power, Inc., (hereafter, “Moving Party”) filed this motion to continue the trial date and all related dates.

            On July 7, 2023, Moving party filed an ex parte application to continue the trial date and all related dates, or alternatively, to shorten time to hear their motion to continue the trial date.  On July 10, 2023, the Court granted the application and continued the trial date to September 28, 2023, and set all trial related dates to the new date.

            Plaintiffs have filed an Opposition and Moving Party has filed a Reply.  

            This is the third request for a trial continuance.

II.           LEGAL STANDARD 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).) 

Notwithstanding any other law and unless ordered otherwise by a court or otherwise agreed to by the parties, a continuance or postponement of a trial¿or arbitration¿date extends any deadlines that have not already passed as of March 19, 2020, applicable to discovery, including the exchange of expert witness information, mandatory settlement conferences, and summary judgment motions in the same matter. The deadlines are extended for the same length of time as the continuance or postponement of the trial date.¿ (Code Civ. Proc., § 599.)

III.      DISCUSSION

            Moving Party seek a trial continuance because Moving Party learned through discovery of Plaintiffs’ extensive history of medical injuries and treatment.  For instance, Moving Party learned that Plaintiff Erlinda Sanchez was diagnosed with rheumatoid arthritis and fibromyalgia prior to the incident and has received treatment for the same prior to and after the incident.  As to Plaintiff Rodolfo Sanchez, Moving Party argues additional time is needed to determine whether another medical examination is needed because medical records indicate that Plaintiff Rodolfo Sanchez has been referred to an Ear, Nose and Throat Doctor and Neuro-Ophthalmologist for complaints made after the incident.  Additionally, Moving Party also requires more time to depose Plaintiffs’ treating providers.  For these reasons, Moving Party seeks a trial continuance to November 28, 2023, and to set all trial related dates to the new trial date.

            Plaintiffs argue that Moving Party has not diligently pursued discovery.  They argue that Moving Party has known since at least December 21, 2021 of the identities of Plaintiffs’ treating providers, Plaintiff Erlinda Sanchez’s fibromyalgia diagnosis, and Plaintiff Rodolfo Sanchez’s treatment by an ear, nose, and throat specialist.  In support, Plaintiffs provide their discovery responses to Moving Party’s Form Interrogatories, Set One.  (See Valero Decl., Exs. A, B.) 

            A review of Plaintiffs’ discovery responses supports Plaintiffs’ position and tends to undermine the basis for this motion.  If Moving Party had the information that underpins this motion in December 21, 2021, it does not appear Moving Party proceeded diligently to complete discovery.

            In reply, Moving Party argues that the delays in pursuing discovery are attributable to the difficulties in obtaining Plaintiffs’ deposition.  After first noticing Plaintiffs’ depositions in May of 2022, Moving Party finally deposed Plaintiffs on April 18, 2023 through no fault of the Moving Party.  The delay in deposing Plaintiffs also delayed conducting Plaintiffs’ medical examinations, which were completed in May of 2023.  Moving Party then received the expert reports in mid-June of 2023.

            Moving Party should have included the foregoing background in their moving papers.  Based on the delay in deposing Plaintiffs, a snowball effect ensued which affected the timely completion of discovery.  Under these facts, good cause may exist to continue the trial.  Circumstances that may indicate good cause include “a party’s excused inability to obtain essential testimony, documents, or other material evidence despite diligent efforts.”¿ (Cal. Rules of Court, rule 3.1332, subd. (c).)  However, the Court is concerned that Moving Party has known since at least December 21, 2022, of Plaintiffs’ extensive injury history and made no indication of needing to conduct additional medical examinations until May 2023. And, waiting until the reply to provide the background that there was a delay in conducting Plaintiffs’ depositions deprives Plaintiffs of the opportunity to address the point in their opposition papers. 

            Accordingly, the Court will hear from the parties about the foregoing and the current status of discovery.

IV.       CONCLUSION 

The court will hear from the parties.

Moving party to give notice. 

Dated:   August 11, 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.