Judge Lee S. Arian, Case Number: 22STCV11237, Date: 2024-01-29 Tentative Ruling

Monday, January 29, 2024

Shana Gitterman (“Plaintiff”) sued Christina Marie Ajalat Matarese (“Defendant”) on April 1, 2022 for one count of negligence alleging that Defendant negligently operated her vehicle after crashing into Plaintiff’s car on December 5, 2021. (Complaint, ¶ 5.) Defendant now files the motion before the Court, a Motion to Continue Trial (the “Motion”). Plaintiff opposes the Motion, and Defendant filed a reply.

California Rules of Court, rule 3.1332, subdivision (c) states that although disfavored, the trial date may be continued for “good cause,” which includes (without limitation):

(1) The unavailability of an essential lay or expert witness because of death, illness, or other excusable circumstances;

(2) The unavailability of a party because of death, illness, or other excusable circumstances;

(3) The unavailability of trial counsel because of death, illness, or other excusable circumstances;

(4) The substitution of trial counsel, but only where there is an affirmative showing that the substitution is required in the interests of justice;

(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.

The court may also consider the following factors: “(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 3.1332(d).)¿¿ ¿

Code of Civil Procedure section 2024.050 allows a court to grant leave to complete discovery proceedings.¿ In doing so, a court shall consider matters relevant to the leave requested, including, but not limited to: (1) the necessity of the discovery, (2) the diligence in seeking the discovery or discovery motion, (3) the likelihood of interference with the trial calendar or prejudice to a party, and (4) the length of time that has elapsed between previous trial dates.¿ (Code Civ. Proc. § 2024.050.)¿

Defendant puts forth three main arguments via its Motion: (1) after prior counsel for Defendant retired, new counsel was only just substituted into the case on November 28, 2023; (2) an excused inability to obtain essential discovery exists, and (3) a significant, unanticipated change in the status of the case exists as a result of which the case is not ready for trial. The Court agrees and grants the Defendant’s Motion.

Defendant’s first argument is that because Defendant’s prior counsel retired and current counsel was only substituted into the case on November 28, 2023, and because of the extent of Plaintiff’s alleged injuries, Defendant requires more time to assess and fully evaluate Plaintiff’s claims. Defendant argues that new counsel has made every effort to keep the case moving forward while getting up to speed, but that because of Plaintiff’s refusal to sign authorization forms for mental health records (discussed more fully in the following section) there has been a delay.

Plaintiff counters that the retirement of old counsel and substitution of new counsel is not a valid reason to continue trial because, according to Plaintiff, the retirement was not a surprise. Plaintiff argues that Defendant should have planned for this transition. However, Plaintiff provides no facts regarding the transition of the opposing party’s counsel, nor does Plaintiff establish how Plaintiff’s counsel – an attorney at an entirely different firm – would be privy to such facts. Moreover, the substitution of new counsel is only one reason Defendant is requesting a continuance. The Court finds it to be the least persuasive reason – counsel accept cases with the expectation he can be ready for the trial date at the time of acceptance -- and would not grant the requested continuance if it were the only reason.

The second reason Defendant requests a continuance is because of the excused inability to obtain essential discovery. CRC Rule 3.1332(c)(6) states that an excused inability to obtain discovery operates as grounds for a continuance. Defendant explains that because Plaintiff has placed her mental health at issue, Defendant is permitted to discover non-privileged information, including mental health records. To that point, Defendant has requested that Plaintiff sign authorizations to release mental health records on three separate occasions so that Defendant may access those mental health records. Plaintiff has refused to sign them. (Declaration of Lina S. McAleer, ¶¶ 13-15.)

Plaintiff argues that she is only making the standard claim for “mental suffering and emotional distress”. (Opposition Papers, 5:6.) The Court is unpersuaded. First, the Complaint specifies that “Plaintiff suffered a severe traumatic brain injury…”. Second, Plaintiff stated in her May 1, 2023 deposition, that she has experienced symptoms of PTSD stemming from the automobile collision. (Motion, Exh. C, pg. 40 lines 16-19.) Clearly, Plaintiff has placed her mental health at issue. Because of Plaintiff’s refusal to sign the authorizations, Defendant has issued subpoenas.

Plaintiff brings concerns over the scope of these subpoenas arguing that the subpoenas request “Plaintiff’s entire life worth of medical, mental, scholastic, and employment records…” (Opposition Papers, 4:25-26.) The opposition papers for a motion to continue trial are not the proper vehicle to address concerns over the scope of a subpoena.

Based on the allegations in the Complaint and Plaintiff’s deposition, it is clear that the discovery needed is the mental health records to which Plaintiff is not permitting access. Situations such as this, discovery delays through no fault of the moving party, are what CRC Rule 3.1332(c)(6) was designed to help remedy.

Finally, Defendant argues that a significant unanticipated change occurred when on December 21, 2023, Plaintiff disclosed eight previously unidentified treating physicians located in New York. Defendant argues that after these physicians were identified, Defendant immediately issued authorizations for the release of records held by these physicians to Plaintiff; however, Plaintiff never signed these authorizations. Plaintiff’s opposition papers are silent on this point.

The current date for trial is February 9, 2024. Only one continuance has occurred before, via the stipulation of both parties. Additionally, there are no alternative means to address the problem, and Plaintiff has not demonstrated any prejudice she would suffer as a result of a continuance. Finally, the interests of justice are best served with a continuance, as that would permit Defendant sufficient time to meet and confer regarding the subpoenas, file any appropriate motions to compel, and to review the discovery and determine subsequent steps as necessary. Accordingly, Defendant’s Motion to Continue Trial is GRANTED. Trial is continued to FATD 6/10/24, and the Final Status Conference is continued to ___________, 2024.

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