Judge Lee S. Arian, Case Number: 21STCV13602, Date: 2023-11-07 Tentative Ruling

On April 25, 2022, Plaintiff Mark Fortunat filed this action against Defendant Yamashiro, Inc. (“Defendant”). On October 9, 2023, the Court vacated the trial date originally scheduled for October 23, 2023. (10/09/23 Minute Order.) Mark Fortunat and Hector Fortunat (“Plaintiffs”) seek an order continuing the trial date and leave to amend summons. The motion is unopposed. As of this date, trial is not set yet.

Trial dates are firm to ensure prompt disposition of civil cases. (Cal. Rules of Court, rule 3.1332(a).) Continuances are thus generally disfavored. (See id. rule 3.1332(b).) Nevertheless, the trial court has discretion to continue trial dates. (Hernandez v. Superior Court (2004) 115 Cal.App.4th 1242, 1246.) Each request for continuance must be considered on its own merits and is granted upon an affirmative showing of good cause. (Cal. Rules of Court, rule 3.1332(c); Hernandez, supra, 115 Cal.App.4th at 1246.) Circumstances that may indicate good cause include: (1) the unavailability of an essential lay or expert witness due to death, illness, or other excusable circumstances; (2) the unavailability of a party due to death, illness, or other excusable circumstances; (3) the unavailability of trial counsel due to death, illness, or other excusable circumstances; (4) the substitution of trial counsel where there is an affirmative showing that the substitution is required in the interests of justice; (5) the addition of a new party if (A) the new party has not had a reasonable opportunity to conduct discovery and prepare for trial, or (B) the other parties have not had a reasonable opportunity to conduct discovery and prepare for trial in regard to the new party’s involvement in the case; (6) a party’s excused inability to obtain essential testimony, documents, or other material evidence despite diligent efforts; or (7) 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).)

The court must also consider such relevant factors as: (1) the proximity of the trial date; (2) whether there was any previous continuance, extension of time, or delay of trial caused by 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. (Id., rule 3.1332(d).)

On motion of any party, the court may grant leave to complete discovery proceedings, or to have a motion concerning discovery heard, closer to the initial trial date, or to reopen discovery after a new trial date has been set. This motion shall be accompanied by a meet and confer declaration demonstrating a good faith effort at informal resolution. (Code Civ. Proc., § 2024.050, subd. (a).)

The court shall take into consideration any matter relevant to the leave requested, including, but not limited to: (1) the necessity and the reasons for the discovery, (2) the diligence or lack of diligence of the party seeking the discovery or the hearing of a discovery motion, and the reasons that the discovery was not completed or that the discovery motion was not heard earlier, (3) any likelihood that permitting the discovery or hearing the discovery motion will prevent the case from going to trial on the date set, or otherwise interfere with the trial calendar, or result in prejudice to any other party, and (4) the length of time that has elapsed between any date previously set, and the date presently set, for the trial of the action.” (Code Civ. Proc., § 2024.050, subd. (b).)

Plaintiffs move to continue trial for one year and request that all discovery and motion cut-off dates be based upon the new trial date. Defendant argues good cause exists for a continuance because the substitution of counsel is an excusable circumstance and Plaintiffs’ new attorney should be able to correct the missteps of the previous attorney. Plaintiffs refer to Rule 3.1332 listing “substitution of counsel” as a factor that the court may consider in determining whether good cause exists. Plaintiffs assert that the case is less than two years old and granting the parties a year to take discovery and resolve the case on the merits is in the interest of justice. Plaintiffs argue that Defendant, who has notice of the claims, would not be prejudiced since he initially inclined to stipulate to a continuance.

Given that trial is not scheduled yet, the Court is not inclined to grant a trial continuance of one year before setting a new trial date. The Court is yet to set a trial date until the Trial Setting Conference on January 8, 2024, so the motion is premature. As such, the motion to continue trial is denied.

Pursuant to § 473(a), “[t]he court may, in furtherance of justice, and on any terms as may be proper, allow a party to amend any pleading or proceeding by adding or striking out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any other respect; and may, upon like terms, enlarge the time for answer or demurrer. The court may likewise, in its discretion, after notice to the adverse party, allow, upon any terms as may be just, an amendment to any pleading or proceeding in other particulars; and may upon like terms allow an answer to be made after the time limited by this code.” Moreover, pursuant to § 576 “[a]ny judge, at any time before or after commencement of trial, in the furtherance of justice, and upon such terms as may be proper, may allow the amendment of any pleading or pretrial conference order.”

The policy favoring amendment and resolving all matters in the same dispute is “so strong that it is a rare case in which denial of leave to amend can be justified. [Citation.]” (Howard v. County of San Diego (2010) 184 Cal.App.4th 1422.) Notwithstanding the “policy of great liberality in permitting amendments to the complaint at any stage of the proceedings, up to and including trial [citations], this policy should be applied only ‘where no prejudice is shown to the adverse party . . . .’ [citation]. A different result is indicated ‘where inexcusable delay and probable prejudice to the opposing party’ is shown. [Citation].” (Magpali v. Farmers Group (1996) 48 Cal.App.4th 471, 487.)

A motion for leave to amend a pleading must also comply with the procedural requirements of California Rules of Court, Rule 3.1324, which requires a supporting declaration to set forth explicitly what allegations are to be added and where, and explicitly stating what new evidence was discovered warranting the amendment and why the amendment was not made earlier. The motion must also include (1) a copy of the proposed and numbered amendment, (2) specifications by reference to pages and lines the allegations that would be deleted and added, and (3) a declaration specifying the effect, necessity and propriety of the amendments, date of discovery and reasons for delay. (See Cal. Rules of Court, Rule 3.1324(a), (b).)

Plaintiffs seek to file an amended summons. Plaintiff’s counsel Rabin Saidian was substituted into the matter on behalf of Plaintiffs. (Saidian Decl. ¶2.) On August 9, 2023, Plaintiff’s counsel posted jury fees and set the First Amended Complaint for service upon Yamashiro LLC. (Id. at ¶4.) Yamashiro was served on August 25, 2023, through its agent for service of Process, Randy Snyder. (Id. at ¶5, Ex. A.) Counsel learned that the summons which identified defendant Yamashiro Inc., had not been amended to reflect the true name of Defendant as Yamashiro LLC. (Id. at ¶6.) Initially, the parties agreed to stipulate to a trial continuance but Defendant’s counsel informed Plaintiff’s counsel that Defendant had not been served with Plaintiffs’ complaint and could not prepare a stipulation to continue the trial date. (Id. at ¶7.)

The Court finds that Plaintiff has addressed the deficiencies and set forth the amendment he is seeking to the summons. Based on a further review of the evidence, Defendant has notice of Plaintiffs’ complaints and initially stipulated to a trial continuance. (Saidian Decl., Ex. B.) No opposition is filed, so no party would be prejudiced by the Court granting Plaintiffs’ leave to amend the summons. Plaintiffs have complied with the procedural requirements of the California Rules of Court, Rule 3.1324. The Court finds that Defendant needs to be properly served with the summons to litigate the matter. Thus, the motion is granted.

Plaintiffs’ motion to continue trial is DENIED. The Court GRANTS Plaintiff’s request to leave to amend the summons. Plaintiff is ordered to serve an amended summons naming Yamashiro LLC as Defendant.

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