Judge: Kerry Bensinger, Case: BC721858, Date: 2023-02-28 Tentative Ruling

Case Number: BC721858    Hearing Date: February 28, 2023    Dept: 27

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

I.         BACKGROUND

On September 17, 2018, Plaintiff Diego Gonzalez (“Plaintiff”) filed this action against Defendants Ryan McCarty and Ashley McCarty (collectively, “Defendants”). The Complaint does not expressly state a specific cause of action but the allegations sound in negligence. The Complaint alleges that on or about September 17, 2016, at a public street in Los Angeles, Defendants negligently entrusted, managed, maintained, drove, and operated their vehicle so as to cause it to collide with Plaintiff’s vehicle, proximately causing Plaintiff’s injuries and damages. (Compl., ¶¶ 8, 9.)

On September 2, 2020, the Court granted the Defendants’ request for trial continuance because on August 10, 2020, the Presiding Judge Kevin C. Brazile of Los Angeles Superior Court issued a general order continuing all civil jury trials until January 2021. The Court continued the jury trial from September 15, 2020, to May 27, 2021.

On April 22, 2021, Defendants filed an Ex Parte Application for an Order Shortening Time, or in the Alternative, an Order to Continue the Trial Date, arguing among other things that they “need additional time to finish conducting discovery, including taking depositions of witnesses and Plaintiff’s medical providers and conducting an [sic] defense medical examination of Plaintiff.” (Ex Parte Application, filed on April 22, 2021, p. 2:9-11; Evid. Code, § 452, subd. (d) [providing that a court can take judicial notice of court records].)

On April 23, 2021, the Court granted the ex parte application and continued the jury trial from May 27, 2021, to September 24, 2021.

On August 12, 2021, Defendants filed another Ex Parte Application for an Order Shortening Time, or in the Alternative, an Order to Continue the Trial Date, arguing that good cause exists to continue trial because Defendants were able to notice and set their medical examination for August 30, 2021, a month before the current trial date, but a month was insufficient to receive a report from the examination and evaluate the case. (Ex Parte Application, filed on August 12, 2021, p. 2:8-11.) They also argued that defendant Ashley McCarty was unavailable for the September 24 trial date, because she lives outside the state and was scheduled to undergo a major surgical operation on September 28, 2021, in her home state of Iowa. (Id. at p. 2:13-15.)

On August 13, 2021, the Court granted the ex parte application, and continued trial from September 24, 2021, to January 19, 2022.

On December 23, 2021, Defendants filed a third Ex Parte Application for and Order to Continue the Trial, but this time they requested terminating sanctions in the alternative. (Ex Parte Application, filed December 23, 2021.) In that ex parte application, Defendants argued they had to serve a new notice for their defense medical examination asking Plaintiff to appear for the exam on December 16, 2021, but Plaintiff failed to appear and, therefore, “Defendants need time to move in on a motion to compel.” (Id. at p. 2:8-11.) They requested a 4-month continuation from the then trial date of January 19, 2022, so that their motion to compel can be heard and a defense medical examination can be conducted. (Id. at p. 2:13-15.) Additionally, they added, the then handling attorney would be leaving the firm as of December 28, 2021, and their new attorney would need additional time to familiarize themselves with the case in preparation for trial. (Id. at p. 2:16-18.) In the alternative to a trial continuance, they asked for terminating sanctions for Plaintiff’s repeated misuse of the discovery process. (Id. at p. 2:20-21.)

On December 27, 2021, the Court granted the continuance and continued trial from January 19, 2022, to July 26, 2022.

On April 7, 2022, Defendants filed their fourth Ex Parte Application for An Order Continuing the Trial Dates and All Related Deadlines, arguing that Plaintiff had failed to appear for at least three properly noticed medical examinations. (Ex Parte Application, filed April 7, 2022, p. 3:3-5.) They emphasized that their “inability to fully conduct discovery and evaluate Plaintiff’s claims has been caused entirely be Plaintiff’s refusal to comply with basic CCP sanctioned discovery, i.e., submitting to a physical [medical examination] fully and fairly.” (Id. at p. 3:5-7.)

On April 8, 2022, the Court denied the April 7 ex parte application to continue trial, noting: “Counsel wants [medical examinations] that Plaintiff has resisted. The Court does not see any motions to compel or other efforts to move this. Plaintiff opposed the continuance and trial is until July 26.” (Minute Order, dated April 8, 2022, p. 1.)

On May 12, 2022, Defendants filed a Motion for an Order Continuing Trial, arguing that “they have been prevented by Plaintiff from completing needed discovery, including an independent medical examination.” (Motion, filed on May 12, 2022, p. 2:3-6.)

On June 16, 2022, the Court granted the request for a continuance and continued trial from July 26, 2022, to October 28, 2022.

On September 30, 2022, Plaintiff filed an Ex Parte Application to Continue Trial and Trial Related Dates, arguing among other things that “Defendant will need to take the deposition of Plaintiff’s experts, however due to several upcoming trials on their calendars that are moving forward, they do not have the availability for depositions until after the trial date. Plaintiff will be prejudiced for being unable to complete necessary depositions and adequately prepare for trial.” (Plaintiff’ Ex Parte Application, filed on September 30, 2022, p. 2:17-20.)

On October 4, 2022, the Court denied Plaintiff’s ex parte application, asking Plaintiff to file a proper noticed motion for the requested relief. (Minute Order, filed October 4, 2022, p. 1.)

On October 14, 2022, the Court held the Final Status Conference (“FSC”), noting (among other things) that the Court had not received any joint electronic trial binders, and therefore continued the FSC to October 19, 2022.

On October 17, 2022, pursuant to oral stipulation, the jury trial was continued from October 28, 2022, to its current date on March 13, 2023.

On January 5, 2023, the Defendants filed the instant Motion to Continue the Final Status Conference and Trial Date.

As of February 24, 2023, no opposition to the motion has been filed.

II.        LEGAL STANDARD

“To ensure the prompt disposition of civil cases, the dates assigned for a trial are firm. All parties and their counsel must regard the date set for trial as certain.” (Cal. Rules of Court, rule 3.1332, subd. (a).)

“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.” (Cal. Rules of Court, rule 3.1332, subd. (b).)

“Although continuances of trials are disfavored, each request for a continuance must be considered on its own merits. The court may grant a continuance only on an affirmative showing of good cause requiring the continuance.” (Cal. Rules of Court, rule 3.1332, subd. (c).)

III.      DISCUSSION

Despite this Court granting several trial continuances, Defendants move for another trial continuance pursuant to California Rules of Court, Rule 3.1332(c)(3) (concerning unavailability of trial counsel because of death, illness, or other excusable circumstances), arguing that their trial counsel, Richard P. Dieffenbach, will be out of the country and unavailable for trial and the earliest he will be available is October 16, 2023.

The motion is denied. “In ruling on a motion or application for continuance, the court must consider all the circumstances that are relevant to the determination. These may include: ¶ (1) The proximity of the trial date; ¶ (2) Whether there was any previous continuance, extension of time, or delay of trial due to any party; ¶ (3) The length of the continuance; ¶ … ¶ (5) The prejudice that parties or witnesses will suffer as a result of the continuance;…¶ …¶ (7) The court’s calendar and the impact of granting a continuance on other pending trials; ¶ … ¶ Whether all parties have stipulated to a continuance; … ¶ (10) Whether the interests of justice are best served by a continuance, by the trial of the matter or by imposing conditions on the continuance; and ¶ (11) Any other fact or circumstance relevant to the fair determination of the motion or application.” (Cal. Rules of Court, rule 3.1332, subd. (d).)

Here, none of those factors favor continuing trial on this case. California Code of Civil Procedure provides “[a]n action shall be brought to trial within five years after the action is commenced against the defendant.” (Code Civ. Proc., § 583.310 – Mandatory Time for Bringing Action to Trial or New Trial.) This case is rapidly approaching the 5-year mark (September 17, 2023 – not including the 6 month extension), and the Court has granted multiple continuances. Defendants argue that counsel will be out of the country from mid-March 2023 through mid-April 2023, but do not explain why counsel will be out of state or whether the trip could have been postponed or why counsel scheduled a trip that conflicts with this trial date. (See Declaration of Richard P. Dieffenbach, ¶¶ 2-4.)   The requested date to continue the trial -- October 2013 -- is beyond the 5 year date (not including the extension), and there is no stipulation to extend the trial date beyond the five year mark. 

IV.      CONCLUSION

          The Motion to Continue Trial is DENIED.

Plaintiff to give notice. 

            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’s 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.

       Dated this 28th day of February 2023