Judge Lee S. Arian, Case Number: 21STCV46980, Date: 2023-11-30 Tentative Ruling

This is an action arising from a toddler sustaining injuries while playing on a playground. On December 27, 2021, Plaintiff Akai Peach (“Plaintiff”), by and through his Guardian ad Litem Andrea Marin, filed a complaint against Defendant California Children’s Academy (“Defendant”) and Does 1-20, alleging a cause of action for negligence. The complaint alleges that Plaintiff suffered a closed displaced fracture of the lateral condyle of right humerus. (Complaint, ¶ 16.)

On November 1, 2023, Defendant filed and served a motion to continue the date of trial from January 19, 2024, to June 17, 2024, or a date determined by the Court, and for a corresponding order continuing the Final Status Conference and all related pre-trial deadlines consistent with the new date of trial (the “Motion”). On November 27, 2023, Plaintiff filed and served a Notice of Non-Opposition to the Motion. Non-jury trial in this action is currently scheduled for January 19, 2024.

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).)

Defendant presents the declaration of its counsel, Evgenia Terehova (“Terehova”), in support of the Motion. Plaintiff indicated through his mother, Guardian ad Litem Andrea Marin, that he remains under the care and supervision of his treating physician, Dr. Silva at Orthopedic Institute for Children, in connection with his injury at issue in this litigation. (Terehova Decl., ¶ 6.) Plaintiff intends to have further evaluations concerning his prognosis. (Id.) The requested continuance will allow additional time for gaining clarity as to Plaintiff’s recovery and his need for future medical care, if any. (Id.) Counsel attests that the parties have agreed to mediate this action and have a mediation scheduled for February 22, 2024, with Mediator Troy Roe. (Id., ¶ 7.) Defendant filed a cross-complaint against Seriously Fun Playgrounds and John Tietjen for implied equitable indemnity and equitable contribution. (Id., ¶ 5.) John Tietjen filed an answer to the cross-complaint on his behalf and as dba Seriously Fun Playgrounds and represents himself and his company in this matter. (Id.)

Counsel further declares that Mr. Tietjen refused to stipulate to a trial continuance in this matter and requests dismissal of all claims against him and his company. (Id., ¶ 9.) Plaintiff, however, though his Guardian ad Litem and his counsel have agreed to continue the trial date to June 17, 2024. (Id., ¶ 8.)

The Court finds that good cause is present for a trial continuance so that the extent of Plaintiff’s injuries can be assessed and the parties can engage in mediation. 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. Also, given the lack of opposition to the Motion, there is an inference it has merit. (Sexton v. Superior Court (1997) 58 Cal.App.4th 1403, 1410.)

Accordingly, the Court GRANTS the Motion. The Court continues non-jury trial in this action from January 19, 2024, to Monday, July 1, 2024 at 8:30 AM in this department. All trial-related dates, including discovery cutoff 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