Judge Lee S. Arian, Case Number: 22STCV25109, Date: 2024-01-12 Tentative Ruling

This is an action arising from Plaintiff Jesse Vitela (“Plaintiff”) being shot with a firearm on September 5, 2020. On August 3, 2022, Plaintiff filed a complaint against Defendants Adam Mendoza and John Mendoza (“Moving Defendant”), as well as Does 1 to 50, alleging causes of action for: (1) Assault and Battery, (2) Intentional Infliction of Emotional Distress, and (3) Negligence.

On September 26, 2022, Moving Defendant filed a demurrer to the complaint. On October 14, 2022, Plaintiff filed the operative First Amended Complaint (“FAC”) against Defendants alleging causes of action for: (1) Assault and Battery, (2) Intentional Infliction of Emotional Distress, and (3) Negligence.

On November 3, 2022, the Court took the hearing on Moving Defendant’s demurrer off-calendar due to the filing of the FAC. (11/03/22 Minute Order.) The Court deemed the demurrer as moot due to the filing of the FAC. (11/03/22 Minute Order.)

On October 10, 2023, Moving Defendant filed the instant motion to continue the trial date and all related dates (the “Motion”). Moving Defendant seeks a continuance of trial from the current trial date of January 31, 2024 to February 20, 2025. The Motion is made on the grounds that there is good cause to continue trial so that Moving Defendant’s motion for summary judgment can be heard, which has a reservation date of January 21, 2025.

On January 5, 2024, Moving Defendant filed and served a motion for summary judgment. The motion for summary judgment is scheduled to be heard on January 21, 2025, which is after the current scheduled trial date in this action.

As of January 9, 2024, no reply brief has been filed as to the Motion. Any reply brief was required to have been filed and served at least five 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).)

In support of the Motion, Bryan C. Zaverl (“Zaverl”), Moving Defendant’s counsel, declares that trial in this matter was initially set for January 31, 2024, and has not been previously continued. (Zaverl Decl., ¶ 3.) Plaintiff was deposed in this action on August 4, 2023. (Zaverl Decl., ¶ 5.) On October 2, 2023, counsel’s office went on the Court Reservation System (“CRS”) to reserve a hearing date for Moving Defendant’s motion for summary judgment; however, the first available hearing date on the CRS for a properly noticed motion for summary judgment was January 21, 2025. (Zaverl Decl., ¶ 6.) Such date is after the current January 31, 2024 trial date. (Zaverl Decl., ¶ 6.) Counsel’s office has reserved the January 21, 2025 hearing date. (Zaverl Decl., ¶ 6.) Counsel also reserved the first available hearing date for the instant motion. (Zaverl Decl., ¶ 7.) Defendants have yet to be deposed. (Zaverl Decl., ¶ 5.)

In opposition to the Motion, Rafael Sweet (“Sweet”), Plaintiff’s counsel, declares that on August 3, 2022, Plaintiff filed the instant action. (Sweet Decl., ¶ 2.) Plaintiff responded to Moving Defendant’s written discovery on March 3, 2023, and Moving Defendant took Plaintiff’s deposition on May 25, 2023. (Sweet Decl., ¶ 3.) Counsel indicates that the subject incident occurred on September 5, 2020, and Moving Defendant proposes delaying trial until February 20, 2025, which is nearly five years after the incident. (Sweet Decl., ¶ 4.) Counsel states that Plaintiff will suffer prejudice if trial is continued, and Plaintiff has waited to be compensated for payments made for out-of-pocket medical treatment due to the subject incident. (Sweet 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. Moving Defendant reserved the earliest available hearing date for a motion for summary judgment. Based on the current trial date, Moving Defendant’s motion for summary judgment would not be heard until over eleven months after trial.

Moving Defendant 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. Plaintiff presents no evidence to support his contention that Moving Defendant delayed filing the motion for summary judgment. Plaintiff also fails to present any authority standing for the proposition that a defendant must file a motion for summary judgment as soon a plaintiff is deposed, or discovery responses are received.

Accordingly, the Motion is GRANTED. That said, the Court encourages Defendant to consistently check the court reservation system for an earlier MSJ date.

The Court GRANTS the Motion. The Court continues non-jury trial in this action from January 31, 2024, to Thursday, February 20, 2025 at 8:30 AM in this department. All trial-related dates, including 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