Judge Lee S. Arian, Case Number: 22STCV24394, Date: 2024-01-30 Tentative Ruling

RESPONDING PARTY: Defendants Susan Cadena and Anthony Hardman (“Defendants”)

This action arises from a motor vehicle accident that occurred on April 27, 2021, in which Plaintiff Annika Penh Te (“Plaintiff”) alleges she sustained injuries. On July 28, 2022, Plaintiff filed a complaint against Defendants Susan Cadena, Anthony Hardman, and DOES 1 to 20 (collectively “Defendants”) alleging a single motor vehicle injury cause of action.

On January 8, 2024, Plaintiff filed and served the instant motion to continue trial and to re-open discovery (the “Motion”). Plaintiff seeks a trial continuance from January 25, 2024, to May 18, 2024, or such other date as is convenient for the Court and the parties, and for an order that all discovery and motion cut-off dates be commensurate with the new trial date.

On January 11, 2024, the Court granted Plaintiff’s ex parte application for an order shortening time for the hearing on the Motion. (01/11/24 Minute Order.) The Court’s January 11, 2024 minute order provides that “[p]ursuant to the request of moving party, the [n]on-[j]ury [t]rial scheduled for 01/25/2024 is continued to 02/14/2024.” (01/11/24 Minute Order.)

On January 16, 2024, Defendants filed an opposition to the Motion, to which Plaintiff replied on January 23, 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).)

Defendants contend that the Motion should be denied because Plaintiff did not provide proper notice of the Motion. Specifically, Defendants assert that the Motion should have been filed by January 3, 2024.

“[A]ll moving and supporting papers shall be served and filed at least 16 court days before the hearing.” (Code Civ. Proc., § 1005, subd. (b).) “[I]f the notice is served by facsimile transmission, express mail, or another method of delivery providing for overnight delivery, the required 16-day period of notice before the hearing shall be increased by two calendar days.” (Id.)

Here, the Motion was served on Defendants by electronic service on January 8, 2024. The Court finds that the filing and service of the Motion on January 8, 2024 was not at least 16 days before the hearing. Thus, the Motion was filed late. The Court will consider the Motion on the merits as Defendants do not indicate any prejudice from the late filing and service of the Motion.

Accordingly, the Court exercises its discretion under California Rules of Court, Rule 3.1300(d) and will consider the Motion.

In support of the Motion, Plaintiff’s counsel, Edward W. Hess Jr. (“Hess”), states that due to recent developments concerning Plaintiff’s medical status this action is not ready for trial. (Hess Decl., ¶ 3.) Plaintiff has ongoing medical issues which has led her physician to recommend that she obtain a consultation and recommendation from a spinal surgeon. (Id., ¶ 4.) Plaintiff has scheduled a first-available appointment with neurosurgeon Devin K. Binder, M.D., Ph.D. for January 24, 2024. (Id.) Counsel attests that a trial continuance is warranted due to the new information concerning Plaintiff’s medical treatment as the parties must: (1) perform additional discovery and investigation and (2) have the newly obtained information reviewed by all parties and their experts. (Id., ¶ 6.) Defendants have refused to stipulate to a trial continuance. (Id., ¶ 5.)

In opposition to the Motion, Defendants’ counsel, Allison L. Grandy (“Grandy”), declares that Defendants believe that Plaintiff only underwent injections for pain at the end of 2023 for purposes of trial. (Grandy Decl., ¶ 2.) Trial was set to commence on January 25, 2024, until Plaintiff was granted a continuance to February 14, 2024 to accommodate the Motion. (Id., ¶ 3.) Counsel states that her office will be prepared for the February 14, 2024 trial date and Defendants have already expended significant time and resources in preparing the case for trial as currently set. (Id., ¶¶ 3-4.) Defendants will be harmed by further delays by having to re-depose retained experts and will be required to serve new written discovery to ascertain any treatment from 2024 and issue subpoenas for those records. (Id., ¶ 5.) Counsel attests that should a continuance be granted, the defense will require at least seven to nine months to complete discovery before a new trial date. (Id., ¶ 6.)

The Court finds that Plaintiff has not shown good cause to continue trial. The fact that Plaintiff’s physician has recommended that she obtain a consultation and recommendation from a spine surgeon does not warrant a trial continuance. Plaintiff does not indicate that surgery will be performed prior to the commencement of trial that may render her unavailable for trial. Thus, there may not be the need for additional discovery as Plaintiff’s counsel contends. (Hess Decl., ¶ 6.) In fact, the reply brief acknowledges that additional medical treatment is not definite as “Plaintiff is consulting with a neurosurgeon to explore potential invasive options to relieve her chronic post-accident pain.” (Reply, 1:25-26, emphasis added.)

Moreover, and significantly, Plaintiff provides no explanation as to: (1) why such consultation was sought near the trial date; or (2) when her physician referred her to the spine surgeon. Simply, Plaintiff provides no reason why she did not seek a consultation with a spine surgeon well in advance of the trial date, if, in fact, such consultation was truly necessary. (This case involves about $600 in property damage. Opposition at p. 2.) Also, given that Defendants are ready for trial, a delay in trial would cause Defendants to incur additional trial preparation costs. (Grandy Decl., ¶ 4). Thus, the Court does not find a trial continuance to be appropriate.

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