Judge: Kerry Bensinger, Case: 22STCV11838, Date: 2023-08-16 Tentative Ruling

Case Number: 22STCV11838    Hearing Date: August 16, 2023    Dept: 27

Tentative Ruling

Judge Kerry Bensinger, Department 27

HEARING DATE:     August 16, 2023                     TRIAL DATE:  October 5, 2023

CASE:                                Kevin Foti v. Westfield, LLC, et al.

CASE NO.:                 22STCV11838

MOTION TO CONTINUE TRIAL

MOVING PARTY:                   Defendant Costco Wholesale Corporation

RESPONDING PARTY:     No opposition

I.          BACKGROUND

            On June 20, 2023, Defendant, Costco Wholesale Corporation, filed this motion to continue the trial date so that its motion for summary judgment may be heard before trial.  This is the first request for a trial continuance.

            The motion was heard on August 2, 2023.  The Court issued a tentative ruling indicating an intent to grant the motion to continue trial and to leave discovery and expert discovery deadlines unchanged.  Defendant appeared at the hearing and requested expert discovery deadline to track with the new trial date.  To Court thereafter continued the hearing and ordered Defendant to meet and confer with all parties about continuing discovery and/or expert discovery deadlines.

            On August 8, 2023, Defendant filed a joint stipulation signed by all parties agreeing to continue all discovery and expert discovery deadlines to track with the continued trial date.

            The Court rules as follows.

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).) 

 Deadlines for Summary Judgment Motion 

Code of Civil Procedure, section 437c requires a Motion for Summary Judgment be made any time after 60 days have elapsed since the general appearance in the action.¿ The motion shall be heard no later than 30 days before trial, unless the Court, for good cause, orders otherwise.¿ Parties must serve notice of the motion and all supporting papers at least 75 days before the time appointed for hearing. 

III.      DISCUSSION

            Defendant seeks to continue the trial date because Defendant reserved the earliest available hearing date for its motion for summary judgment.¿ The motion is scheduled for July 12, 2024, which is after the current trial date of October 5, 2023.¿ (See Declaration of Jeffrey Tsao.)  Defendant argues good cause exists for a trial continuance so that its summary judgment motion may be heard in compliance with Code of Civil Procedure section 437c.¿ 

            Based on the foregoing, the Court finds good cause exists to continue the trial date.  As this is the first trial continuance request and no party has opposed this motion, the Court also finds no prejudice will result from granting this motion.

IV.       CONCLUSION 

The motion to continue trial is GRANTED.  Defendant Costco Wholesale Corporation’s  summary judgment motion is scheduled for July 12, 2024.  The Final Status Conference scheduled for September 21, 2023, is CONTINUED to July 29, 2024 at 10:00 a.m. in Department 27 of the Spring Street Courthouse, and the Non-Jury Trial scheduled for October 5, 2023 is CONTINUED to August 12, 2024 at 08:30 a.m. in Department 27 of the Spring Street Courthouse.  Pursuant to the request of the parties, all discovery cut-off dates, all pretrial deadlines including discovery, expert, and motion cut-off dates are set to the new trial date of August 12, 2024. 

Moving party to give notice. 

Dated:   August 16, 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.