Judge Lee S. Arian, Case Number: 22STCV21383, Date: 2024-01-23 Tentative Ruling

This action arises from Plaintiff Daisy Martinez (“Plaintiff”) sustaining a fall on a sidewalk on July 21, 2021. On June 30, 2022, Plaintiff filed a complaint against Defendants City of Los Angeles, County of Los Angeles, Koulax Enterprises, and Does 1 to 25, alleging causes of action for: (1) general negligence and (2) premises liability.

On March 7, 2023, Defendant Koulax Enterprises, Inc. (“Koulax”) filed an answer to the complaint.[1]

On March 13, 2023, Defendant County of Los Angeles filed an answer to the complaint.

On November 1, 2023, Plaintiff filed a request for dismissal of Defendant County of Los Angeles, and dismissal of Defendant County of Los Angeles was entered on such date.

On December 12, 2023, Defendant Koulax filed a motion for summary judgment, which has a hearing date of March 5, 2025.

On December 15, 2023, Defendant Koulax filed and served a motion to continue the trial date and final status conference date, as well as extend the discovery cut-off date, in accordance with the new trial date (the “Motion”). Alternatively, Defendant Koulax requests that the Court advance the hearing on its motion for summary judgment to a date before the current trial date of April 26, 2024.

On December 18, 2023, Defendant City of Los Angeles filed an answer to the complaint. The Motion was not served on Defendant City of Los Angeles as it had not yet filed an answer or otherwise appeared in this action when the Motion was filed.

The Motion is unopposed. Any opposition was required to have been filed and served at least nine 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).)

According to the declaration of Dimitry Chapovsky (“Chapovsky”) the trial date in this case is currently scheduled for April 26, 2024. (Chapovsky Decl., ¶ 3.) On December 7, 2023, counsel’s paralegal reserved the first available hearing date of March 5, 2025 for a motion for summary judgment. (Chapovsky Decl., ¶ 3.) On December 12, 2023, Defendant Koulax filed and served the motion for summary judgment and such motion was filed 136 days before the current trial date. (Chapovsky Decl., ¶ 3.) Counsel attests that they reserved the earliest possible date for a motion for summary judgment hearing. (Chapovsky Decl., ¶ 3.)

Counsel further attests that a trial continuance is warranted. (Chapovsky Decl., ¶ 4.) Alternatively, counsel requests that the court schedule a hearing on Defendant Koulax’s motion for summary judgment prior to the current trial date of April 26, 2024. (Chapovsky Decl., ¶ 4.)

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. Due to congestion on the Court’s calendar, the Court opts to continue trial rather than advancing the hearing on Defendant Koulax’s motion for summary judgment. Defendant Koulax reserved the earliest available hearing date for a motion for summary judgment. Based on the current trial date, its motion for summary judgment would not be heard until approximately 10.5 months after trial. Defendant Koulax 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.

Defendant City of Los Angeles filed its answer after the Motion was filed. Moreover, the answer of Defendant City of Los Angeles was only served on Plaintiff. Thus, Defendant Koulax may not be aware of the appearance of Defendant City of Los Angeles in this action. Irrespective of such fact, Plaintiff failed to file an opposition to the Motion and therefore there is an inference the Motion is meritorious. (Sexton v. Superior Court (1997) 58 Cal.App.4th 1403, 1410.)

The Court GRANTS Defendant Koulax’s motion to continue trial. The Court continues non-jury trial in this action from April 26, 2024, to Monday, April 7, 2025 at 8:30 AM in this department. All trial-related dates, including the final status conference, 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

[1] Although not indicated in the answer of Defendant Koulax Enterprises, Inc. (“Koulax”), it appears that Defendant Koulax was erroneously sued as Koulax Enterprises.