Judge: Kevin C. Brazile, Case: 21STCV02018, Date: 2023-05-18 Tentative Ruling

Hearing Date: May 19, 2023

Case Name: Yang v. Amar, et al.

Case No.: 19STCV01544 (consolidated with case no. 20STCV21231)

Matter: Motion to Continue Trial Date

Moving Party: Defendants Michel Amar, Alec Amar, Bit.Management, LLC, NYAM, 

LLC and Multiple Application Technology, LLC

Responding Party: Plaintiff Brian Yang

Notice: OK

Ruling: The Motion is granted.

Moving parties to give notice.

If counsel do not submit on the tentative, they are strongly 

encouraged to appear by LACourtConnect rather than in person due to the COVID-19 pandemic. 

Defendants Michel Amar, Alec Amar, Bit.Management, LLC, NYAM, LLC and Multiple Application Technology, LLC seek an order “continuing the current August 14, 2023 trial date for at least three months. While Plaintiffs and Cross-Defendants of the consolidated action Xu Hai, Fangyu Huang, and Kangying, LLC were willing to stipulate to a continuance, Plaintiff and Cross-Defendant Brian Yang was not. . . . Brian Yang amended his complaint to add a new defendant, Bit Mining International, LLC (“BMI”), to the litigation a mere four months before trial. . . . . Defendants are willing to stipulate to extend the five-year rule in this case to accommodate the requested continuance, eliminating any possibility that any other party claims prejudice here.”  

The Motion was also based on unavailability of counsel, but that issue has been resolved.  Defendants seek a continuance in order to complete adequate discovery with respect to BMI.  

Plaintiff Yang argues that the trial date has already been continued multiple times; it was Defendants’ recent testimony that required that BMI be added as a party; and Yang should not be forced to stipulate to extend the five-year rule.  

Cal. Rules of Court, Rule 3.1332 provides, “In ruling on a motion or application for continuance, the court must consider all the facts and 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 requested; (4)The availability of alternative means to address the problem that gave rise to the motion or application for a continuance; (5) The prejudice that parties or witnesses will suffer as a result of the continuance; (6) If the case is entitled to a preferential trial setting, the reasons for that status and whether the need for a continuance outweighs the need to avoid delay; (7) The court's calendar and the impact of granting a continuance on other pending trials; (8) Whether trial counsel is engaged in another trial; (9) 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.”

The current trial date is August 14, 2023. 

BMI was added by doe amendment on April 6, 2023.

A civil action must be brought to trial within five years after it is commenced against the defendant. (Code Civ. Proc. § 583.310.)  If the action is not brought to trial within that time, dismissal is mandatory on the motion of any party or on the court’s own motion. (Code Civ. Proc. § 583.360; Martinez v. Landry's Restaurants, Inc. (2018) 26 Cal.App.5th 783, 794.)

An action is “brought to trial” for purposes of the five-year dismissal statute when the jury is sworn in a jury trial or when the first witness is sworn in a nonjury trial.  (Hartman v. Santamarina (1982) 30 Cal.3d 762, 765; Lakkees v. Superior Court (4th Dist. 1990) 222 Cal.App.3d 531, 536.)  A “jury” is the panel of prospective jurors, and trial commences when they are assembled in the courtroom for voir dire and sworn to tell the truth, even though the actual trial jurors selected will be sworn again.  (Stueve v. Nemer (2017) 7 Cal.App.5th 746, 752.)

Given that this action was filed on January 16, 2019, the five-year rule would indicate that trial must start by January 16, 2024.

The Motion is granted.  The Court sees no prejudice in moving the trial date to sometime in November 2023, so that adequate discovery can be conducted with respect to a new Defendant, BMI.

Yang argues that BMI can make its own request for a continuance, but Defendants can request a continuance based on the addition of BMI because Yang alleges that BMI and the moving Defendants are jointly and severally liable.

Moving parties to give notice.

If counsel do not submit on the tentative, they are strongly encouraged to appear by LACourtConnect rather than in person due to the COVID-19 pandemic.