Judge Kerry Bensinger, Case Number: 22STCV11590, Date: 2023-08-16 Tentative Ruling

CASE: Emilienne Figg, et al. v. Neil Punt as Special Administrator of the Estate of Henry Punt

MOVING PARTY: Defendant Neil Punt as Special Administrator of the Estate of Henry Punt

RESPONDING PARTY: Plaintiffs Emilienne Figg, Dylan Figg, Rachel Figg, Adam Figg, as individuals and as successors in interest to Jacqueline Figg

On April 5, 2022, Plaintiffs Emilienne Figg, Dylan Figg, Rachel Figg, Adam Figg, individually and as successors in interest to Jacqueline Figg, initiated this wrongful death action against Defendant, Neil Punt as Special Administrator of the Estate of Henry Punt. Plaintiffs allege that Henry Punt negligently piloted an airplane that resulted in the death off all passengers on the plane, including their mother, Jacqueline Figg.

On July 12, 2023, Defendant filed this motion to continue trial to March 18, 2024, and to set all related deadlines to the new trial date. Plaintiffs oppose and Defendant replies.

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.)

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 in roughly two and a half months. Defendant argues the case is not ready for trial because the National Transportation Safety Board (NTSB) is still investigating the cause of the crash and has yet to issue its Factual Report or Final Probable Cause Report, or to release any evidence relevant to the cause of the crash, including security video footage, results of the engine manufacturer’s tear down report, radar information, or witness interviews. Defendant concedes that the NTSB Report would not be admissible but may lead to admissible evidence and may allow Defendant to ascertain whether another party or parties are liable. Moreover, Defendant’s retained expert needs time to review all the foregoing materials when they become available.

Plaintiffs agree that the NTSB Report is not admissible, and further point out that Defendants do not make any showing of diligence in obtaining any relevant evidence or that it is otherwise unavailable. Plaintiff is correct that Defendant does not adequately explain what efforts, if any, have been made to complete discovery or conversely, what discovery has been completed. However, given the importance of the NTSB Report, the high potential that the report may lead to admissible evidence, and that the Report has yet to be completed, the Court finds that this factor weighs slightly 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. This factor weighs in favor of a continuance.

3. The length of the continuance requested. Defendant requests a trial continuance to March 18, 2024—a period of seven months. Defendant does not indicate when the NTSB Report will be completed. However, given the Court’s view of the NTSB Report, the Court finds the length of the continuance is not excessive. In sum, this factor weighs slightly in favor of a trial continuance.[1]

4. Availability of alternative means to address the problem that gave rise to the motion or application for a continuance. The parties do not address this factor. However, the Court recognizes that there is no clear substitute for the report produced by the NTSB. This factor also weighs in favor of a trial continuance.

5. Prejudice that parties or witnesses will suffer as a result of the continuance. Defendant argues it will suffer prejudice if a trial continuance is not granted to allow review of the NTSB Report. Plaintiffs, in turn, argue that they will be prejudiced by a trial continuance because the costs of litigation will increase. Plaintiffs also argue their experts will be prejudiced by a trial continuance because many of Plaintiffs’ experts have already blocked off time in their schedules to be available for trial. Plaintiffs accepted certain litigation costs by initiating this action. The Court is sensitive to the difficulties in having experts available for trial. However, Defendant is entitled to prepare defense. The completion of the NTSB Report is relevant to that end. This factor weighs in favor of a trial continuance.

6. Whether trial counsel is engaged in another trial. Counsel for Plaintiffs argue a trial continuance should be denied because he will be engaged in another trial at or around the time of the proposed trial date of March 18, 2024. This factor slightly weighs against a trial continuance but does not outweigh the Court’s determination of the foregoing factors. Should Plaintff’s counsel be engaged, the Court can adjust the trial schedule.

In sum, the factors weigh in favor of granting a trial continuance. This is the first trial continuance in a case that has been at issue for less than 18 months.

The motion is granted. The Final Status Conference scheduled for August 19, 2023, is CONTINUED to March 12, 2024 at 10:00 a.m. in Department 27 of¿the Spring Street Courthouse, and the Jury Trial scheduled for October 3, 2023 is CONTINUED to March 26, 2024 at 08:30 a.m. in Department 27 of the Spring Street Courthouse. 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.¿ (Code Civ. Proc., 599.)

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] If either party seeks a further trial continuance based on the unavailability of the NTSB Report, the moving party must attempt to learn the projected date of disclosure. Open ended continuance requests will not be looked upon favorably.