Judge: Kerry Bensinger, Case: 22STCV08159, Date: 2023-08-14 Tentative Ruling

Case Number: 22STCV08159    Hearing Date: August 14, 2023    Dept: 27

Tentative Ruling

Judge Kerry Bensinger, Department 27

HEARING DATE:     August 14, 2023                     TRIAL DATE:  September 5, 2023

CASE:                                Marleni Parada-De Hernandez v. Mid-City Holdings, LLC

CASE NO.:                 22STCV08159

MOTION TO CONTINUE TRIAL

MOVING PARTY:                   Defendants Mid-City Holdings, LLC and Commercial Property Management, Inc.

RESPONDING PARTY:     Plaintiffs Marleni Parada-De Hernandez

I.          BACKGROUND

            On March 7, 2022, Plaintiff, Marlenia Parada-De Hernandez, filed this premises liability action against Defendants, Mid-City Holdings, LLC (“Mid-City Holdings”), and Does 1 through 100.  Mid-City Holdings filed an Answer on March 29, 2022.

            On June 22, 2022, Plaintiff amended the Complaint to name Commercial Property Management, Inc. (“CPM”) as Doe 1.  CPM filed an Answer to the Complaint on July 26, 2022.

            On March 23, 2023, Defendants filed a Substitution of Attorney.

            On July 13, 2023, Defendants filed and an ex parte application to continue the trial and related deadlines.  On the same day, Defendants filed this motion to continue the trial date and all related deadlines.  These are the first requests for a trial continuance.

            Defendants’ ex parte application was heard on July 14, 2023.  The Court denied the application for lack of exigency and noted that if defense counsel needs a continuance, the matter can be heard in advance of trial.

            Plaintiff has filed an Opposition and Defendants have filed a Reply.  

            The Court notes that fact discovery has closed.  Accordingly, the Court construes this motion as a request to continue trial and to reopen discovery.

II.           LEGAL STANDARDS

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, subdivision (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.)

            Reopen Discovery 

            Except as otherwise provided, any party shall be entitled as a matter of right to complete discovery proceedings on or before the 30th day, and to have motions concerning discovery heard on or before the 15th day, before the date initially set for trial of the action.¿ (Code Civ. Proc., § 2024.020, subd. (a).)¿ 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

            After weighing the relevant factors, the Court finds good cause exists to continue the trial date.   

            1. Proximity of the Trial Date. Trial is set to take place less than 2 months away.  Defendants argue the case is not ready for trial because written discovery is ongoing, depositions of the following persons have not been completed: experts, treating providers, and, at least, two percipient witnesses.  Additionally, defense counsel is not available for the current trial date. Plaintiff does not dispute the status of discovery but simply submits her belief that discovery can be completed before trial.  In reply, Defendants point out that Plaintiff unilaterally noticed depositions of Defendants’ retained experts for dates defense counsel is unavailable.  Further, Defendants state they recently received medical records on August 2, 2023, from a previously undisclosed provider and are awaiting additional records from Plaintiff’s physical therapy providers.  In sum, essential discovery cannot be completed prior to the current trial date.  This factor weighs in favor of a trial continuance.

            2. Previous continuances, extensions of time, or delays of trial due to any party.  This is the first request for a continuance.  However, Defendants filed a substitution of attorney on March 23, 2023, knowing full well that new counsel had a trial conflict.  Nonetheless, this factor weighs slightly in favor of a continuance.

            3. The length of the continuance requested. Defendants request a trial continuance to March 25, 2024, or any date thereafter—a period of more than six months.  The length of the continuance is not excessive considering CPM was not named in the Complaint until June of 2022 and did not file an Answer until July of 2022.  Defense counsel further represents that March 25, 2024, is counsel’s first available date for trial in this matter.  In sum, this factor weighs in favor of a trial continuance.

            4. Availability of alternative means to address the problem that gave rise to the motion or application for a continuance.  Defense counsel states there are no other available attorneys at counsel’s firm.  Additionally, given the amount of discovery to be completed, a trial continuance is the best means to complete discovery.

            5. Prejudice that parties or witnesses will suffer as a result of the continuance.  Defendants argue that denying the trial continuance will result in prejudice to Defendants by limiting their ability to prepare a defense.  Plaintiff argues she will be prejudiced by a trial continuance but does not otherwise explain the basis for that belief.  This factor also weighs in favor of a trial continuance.

            6. Whether trial counsel is engaged in another trial.  Defense counsel will be engaged in another trial that has been set for preference and which conflicts with the trial date in this case.  Defense counsel provides a list of additional cases with impending trial dates to show counsel’s unavailability until March 25, 2024.  This factor also weighs in favor of a trial continuance.

            In sum, the factors weigh in favor of granting a trial continuance.  Given that the need to complete discovery forms a significant basis for this motion, the Court also finds good cause exists to reopen discovery.  (See also Code Civ. Proc, § 599.)

            Accordingly, the motion is granted.

IV.       CONCLUSION 

The motion is granted.  The Final Status Conference scheduled for August 21, 2023, is CONTINUED to March 12, 2024 at 10:00 a.m. in Department 27 of¿the Spring Street Courthouse, and the Non-Jury Trial scheduled for September 5, 2023 is CONTINUED to March 26, 2024 at 08:30 a.m. in Department 27 of the Spring Street Courthouse. 

Discovery is reopened.  All discovery cut-off dates, all pretrial deadlines including discovery, expert, and motion cut-off dates are set to the new trial date of March 26, 2024.¿

Moving party to give notice. 

Dated:   August 14, 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.