Judge Lee S. Arian, Case Number: 20STCV13878, Date: 2024-01-22 Tentative Ruling

This is an action where Plaintiff Farmers Insurance Exchange (“Plaintiff”) alleges that Defendants Sonia Carrejo (“Carrejo”) and George Martinez (“Martinez”) (collectively, “Defendants”) caused a fire at a property that Plaintiff insured. On April 29, 2020, Plaintiff filed a complaint against Defendants and Does 1 through 30 for equitable subrogation for damages for negligence to property.

On May 6, 2020, Defendant Carrejo filed a cross-complaint against Martinez and Roes 1 to 25, alleging causes of action for: (1) indemnification, (2) apportionment of fault, and (3) declaratory relief.

On June 29, 2020, Plaintiff requested, and default was entered against Martinez.

On June 10, 2021, the Court entered an order and stipulation to continue trial, which continued trial from October 7, 2021 to April 8, 2022.

On March 15, 2022, the Court granted the ex parte application to continue trial filed by Defendant Carrejo, and the Court continued non-jury trial to November 7, 2022. (03/15/22 Minute Order.)

On September 30, 2022, after hearing, the Court granted Plaintiff’s ex parte application to continue trial. (09/30/22 Minute Order.) Pursuant to oral stipulation, the Court continued non-jury trial from November 7, 2022 to March 4, 2024. (09/30/22 Minute Order.) The parties “agree[d] in open Court to the new trial date and also agree[d] to the continuance of related deadlines.” (09/30/22 Minute Order.)

On September 25, 2023, Plaintiff filed an Amendment to Complaint which corrected the name of Martinez to his true name of Jorge Martinez.

On November 15, 2023, Defendant Carrejo filed a motion for summary judgment, which is scheduled for hearing on October 2, 2024.

On September 21, 2023, Defendant Carrejo filed and served the instant motion to continue the trial and all trial-related dates or, alternatively, specially setting and advancing the hearing date on Defendant Carrejo’s motion for summary judgment. Defendant Carrejo seeks a trial continuance to December 9, 2024, which is after the October 2, 2024 hearing on Defendant Carrejo’s motion for summary judgment.

On January 4, 2024, Plaintiff filed and served a notice of non-opposition indicating that it does not oppose Defendant Carrejo’s motion to continue trial.

The motion is therefore unopposed. Any opposition was required to have been filed and served at least five court days prior to the hearing. (Code Civ. Proc., § 1005, subd. (b).)

A motion for summary judgment must “be heard no later than 30 days before the date of trial, unless the court for good cause considers otherwise.” (Code Civ. Proc., § 437c, subd. (a)(3).) A motion for summary judgment “may be made at any time after 60 days have elapsed since the general appearance in the action or proceeding of each party against whom the motion is directed.” (Code Civ. Proc., § 437c, subd. (a)(1).) A court may not refuse to hear a summary judgment motion filed within the time limits of Code Civ. Proc. § 437c. (Wells Fargo Bank v. Superior Court (1988) 206 Cal.App.3d 918, 919.)

Code Civ. Proc. § 128(a)(8) provides that the court has the power to “amend and control its process and orders so as to make them conform to law and justice.” “[T]he power to determine when a continuance should be granted is within the discretion of the trial court.” (Color-Vue, Inc. v. Abrams (1996) 44 Cal.App.4th 1599, 1603.) A trial court has wide latitude in the matter of calendar control including the granting or denying of continuances. (Park Motors, Inc. v. Cozens (1975) 49 Cal.App.3d 12, 18.)

A party seeking a continuance of the date set for trial, whether contested or uncontested or stipulated by the parties, must make the request for a continuance by a noticed motion or ex parte application, with supporting declarations. (Cal. Rules of Court, Rule 3.1332(b).) The party must make the motion or application as soon as reasonably practical once the necessity for the continuance is discovered. (Ibid.)

Each request for a continuance must be considered on its own merits according to California Rules of Court, Rule 3.1332(c). The court may grant a continuance only on an affirmative showing of good cause requiring the continuance. (Cal. Rules of Court, Rule 3.1332(c).) Good cause may be present where a party has not been unable “to obtain essential testimony, documents, or other material evidence despite diligent efforts” or there has been a “significant, unanticipated change in the status of the case as a result of which the case is not ready for trial.” (Cal. Rules of Court, Rule 3.1332(c)(6)-(7).)

California Rules of Court, Rule 3.1332 sets forth a list of non-exhaustive factors to be analyzed when determining whether good cause for a trial continuance is present. A court considers factors such as: (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. (Cal. Rules of Court, Rule 3.1332(d).)

In support of the Motion, Defendant Carrejo’s counsel, Armen A. Avakian (“Avakian”), declares that Defendant Carrejo filed her motion for summary judgment, which has a hearing date of October 2, 2024. (Avakian Decl., ¶ 5.) Counsel indicates that Defendant Carrejo is seeking a continuance via noticed motion as early as possible. (Avakian Decl., ¶ 6.) There have only been two prior continuances by stipulation. (Avakian Decl., ¶ 7.) Defendant Carrejo is seeking an approximately nine-month continuance of trial so that her motion for summary judgment can be heard, and so that the parties can appropriately prepare for and defend their positions at trial. (Avakian Decl., ¶ 8.)

Counsel states that when the Court renders its decision on the motion for summary judgment, the parties can possibly enter settlement without the need for trial. (Avakian Decl., ¶ 9.) Defendant Carrejo requests a trial continuance to December 9, 2024. (Avakian Decl., ¶ 11.) Defendant Carrejo reserved the first available hearing date for the motion for summary judgment and, due to the Court’s calendar, Defendant Carrejo was unable to schedule the hearing at least 30 days prior to trial. (Avakian Decl., ¶¶ 13-14.) Counsel states that the motion for summary judgment raises what Defendant Carrejo contends are case-dispositive issues. (Avakian Decl., ¶ 15.) Counsel states that absent the Court hearing Defendant Carrejo’s motion for summary judgment, Defendant Carrejo will be unable to avail herself of her statutory right, and both parties will be unable to properly prepare for trial. (Avakian Decl., ¶ 16.)

Exercising its discretion under Park Motors, Inc. v. Cozens, supra, 49 Cal.App.3d 12, 18, the Court finds it appropriate to continue the trial in this matter. Defendant Carrejo reserved the earliest available hearing date for a motion for summary judgment. Based on the current trial date, her motion for summary judgment would not be heard until approximately seven months after trial. Defendant Carrejo filed a timely motion for summary judgment and has a right to have such motion heard prior to trial under Wells Fargo Bank v. Superior Court, supra, 206 Cal.App.3d 918, 919.

While not raised by the parties, the Court notes that this action was commenced on April 9, 2020. The Court reminds the parties that this action must be brought to trial within five years of its commencement. (Code Civ. Proc., § 583.310.)

The Court GRANTS Defendant Carrejo’s motion to continue trial. The Court continues non-jury trial in this action from October 2, 2024, to Monday, December 9, 2024 at 8:30 AM in this department. All trial-related dates, including discovery and motion cut-off dates, are based on the continued trial date.

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.

Hon. Lee S. Arian

Judge of the Superior Court