Judge: Lee S. Arian, Case: 22STCV26656, Date: 2023-12-18 Tentative Ruling

Case Number: 22STCV26656    Hearing Date: December 18, 2023    Dept: 27

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

MOVING PARTY: Defendant Mary Kitahara (“Moving Defendant”)    

RESPONDING PARTY: Unopposed

I.            INTRODUCTION

This is an action arising from a slip and fall that occurred on August 21, 2020. On August 17, 2022, Plaintiff D’Andre Jones (“Plaintiff”) filed a Complaint against Defendants David V. Lieu (Lieu”), Maggielinh N. Thai (“Thai”), Mary Kitahara, and Does 1 to 50 (collectively, “Defendants”), alleging causes of action for: (1) General Negligence and (2) Premises Liability.  

On November 21, 2022, Defendants Lieu and Thai filed and served an Answer to the Complaint.

On November 17, 2023, Defendant Mary Kitahara (“Moving Defendant”) filed and served an Answer to the Complaint. There is no proof of service in the court file showing when Defendants were served with the summons and complaint in this action.

On November 20, 2023, Moving Defendant filed and served an unopposed motion to continue the date of trial, and continue all related pre-trial dates including the discovery cutoff and motion cut-offs, to November 18, 2024, or a date thereafter otherwise deemed appropriate by the Court (the “Motion”). Any opposition to the Motion was required to have been filed and served at least nine court days prior to the hearing. (Code Civ. Proc., § 1005, subd. (b).)  

Moving Defendant contends that she was only served with the summons and complaint on November 14, 2023, and just appeared in this action on November 17, 2023. Non-jury trial in this action is currently scheduled for February 14, 2024.

II.      LEGAL STANDARD

          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.)

“[E]ach request for a continuance must be considered on its own merits.” (Cal Rules of Court, Rule 3.1332(c). “The court may grant a continuance only on an affirmative showing of good cause requiring the continuance.” (Ibid.) 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).) Good cause may also be present where there is an “unavailability of trial counsel because of death, illness, or other excusable circumstances.” (Cal. Rules of Court, Rule 3.1332(c)(3).)

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).)

III.    DISCUSSION

Issue No.1: Good Cause  

          Moving Defendant presents the declaration of her counsel, Roxanne F. Swedelson (“Swedelson”), in support of the Motion. Counsel declares that Plaintiff, through counsel, has not stipulated to a trial continuance; however, Defendants Lieu and Thai, through counsel, have stipulated to the requested relief. (Swedelson Decl., ¶ 3 and Exhibit A.) Moving Defendant was only recently served on November 14, 2023 and just appeared on November 17, 2023. (Id., ¶ 5.) It would be unduly prejudicial to Moving Defendant to go forward with trial in a few months after Moving Defendant was made a party. (Id., ¶ 6.) Unless Moving Defendant is afforded a fair and reasonable length of time in which to depose Plaintiff and evaluate Plaintiff’s claims and prepare for trial, Moving Defendant will suffer irreparable harm. (Id.) Moving Defendant requests an approximate nine-month continuance to conduct crucial discovery and prepare a motion for summary judgment. (Id., ¶ 7.) If the trial is not continued, counsel attests that all parties will be prejudiced. (Id., ¶ 8.) Plaintiff and the other defendants have not yet had the opportunity to depose Moving Defendant or propound discovery to Moving Defendant. (Id.) Moving Defendant is not aware of any prejudice to any other party which would result from granting the requested relief. (Id.)

          The Court finds that good cause is present for a trial continuance so that Moving Defendant can adequately prepare for trial. Good cause is also present given that Moving Defendant was only recently served with the summons and complaint and has not had the opportunity to sufficiently evaluate Plaintiff’s claims or propound discovery. Moreover, the Court finds that the proposed continuance is approximately nine months, which is not a prolonged continuance. 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.)

          The Motion is therefore GRANTED.

IV.     CONCLUSION

Accordingly, the Court GRANTS the Motion. The Court continues non-jury trial in this action from February 14, 2024, to Monday, November 18, 2024 at 8:30 AM in this department. All trial-related dates, including discovery cutoff dates, are based on the continued trial date.

Moving party is ordered to give notice of this ruling.

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.

      Dated this 18th day of December 2023