Judge Lee S. Arian, Case Number: 22STCV81116, Date: 2024-02-06 Tentative Ruling

MOVING PARTY: Defendant the People of the State of California, acting by and through the Department of Transportation (“Moving Defendant”)

This action arises from Plaintiffs Geoff Loui and Rich Hirschinger (“Plaintiffs”) losing control of their bicycles and crashing on Pacific Coast Highway due to dangerous roadway defect. On June 2, 2022, Plaintiffs filed a complaint against Defendants State of California, County of Los Angeles (“County”), City of Malibu (“City”), and DOES 1 through 50, alleging causes of action for: (1) premises liability and (2) general negligence.

On August 12, 2022, pursuant to a request for dismissal filed by Plaintiffs, Defendant City was dismissed from this action with prejudice.

On August 17, 2022, pursuant to a request for dismissal filed by Plaintiffs, Defendant County was dismissed from this action with prejudice.

On October 28, 2022, Defendant, The People of the State of California, acting by and through the Department of Transportation (erroneously sued and served as “State of California”) (“Moving Defendant”) filed an answer to the complaint.

On April 17, 2023, Plaintiffs filed an amendment to complaint which identified Verizon Business Network Services, LLC as DOE 1. Also, on April 17, 2023, Plaintiffs filed amendments to complaint with identified Ridgeline Telecom, LLC as DOE 2 and MCIMetro Access Transmission Services, LLC (“MCI”) as DOE 3.

On July 7, 2023, Cellco Partnership dba Verizon Wireless (“Verizon”) (erroneously sued as “Verizon Business Network Services, LLC”) filed an answer to the complaint.

On September 28, 2023, the Court entered a stipulation and order which continued trial from November 30, 2023 to April 5, 2024.

On January 17, 2024, Moving Defendant filed and served the instant motion for an order to continue the trial date, final status conference, and all trial related cut-off dates from March 22, 2024[1] to March 2025, or a date that the Court deems to be appropriate for its calendar (the “Motion”).

The Motion is unopposed. However, the Court notes that the Motion was not filed and served at least 16 days prior to the hearing as required by Code Civ. Proc., § 1005, subd. (b). Moving Defendant filed and served the Motion on January 17, 2024 with a hearing date of February 6, 2024. The Motion was filed and served only 14 court days prior to the hearing.

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).)

Counsel for Moving Defendant, Nusha F. Ahmed (“Ahmed”)[2], declares that Mr. Arthur Javier has been the assigned counsel since the inception of this case and handled the matter even before Moving Defendant made its first appearance. (Ahmed Decl., ¶ 2.) Mr. Javier is most familiar with the facts and progress of this case and conducting trial in his absence would highly prejudice the interest of Moving Defendant. (Id.) Since Moving Defendant made its first appearance, it has diligently investigated the claims made by Plaintiffs by conducting an internal investigation. (Id., ¶ 9.) During such investigation, Moving Defendant recently became aware of possible involvement by LADWP and based on such investigation, Moving Defendant believes that it is in its best interest to bring a formal cross-complaint against LADWP to conduct formal discovery and properly litigate the complaint. (Id., ¶¶ 10-12.) The parties have stipulated once to continue trial, which occurred on September 28, 2023. (Id., ¶ 8.) Counsel states that good cause exists to continue the trial date because Moving Defendant will suffer irreparable harm if it is not allowed to conduct extensive discovery prior to the current trial date of April 5, 2024. (Id., ¶ 14.)

The Court finds that Moving Defendant has shown good cause to continue trial. Moving Defendant has indicated that its trial counsel, Mr. Javier, is absent from this action and to conduct trial in his absence would prejudice Moving Defendant. Also, Moving Defendant needs to conduct extensive discovery to investigate any possible claims against LADWP. LADWP has stopped all informal communication with Moving Defendant. (Ahmed Decl., ¶ 12.) The Court finds that Moving Defendant has been diligent in investigating Plaintiffs’ claims but has not obtained all necessary discovery.

However, despite the showing of good cause, the Court cannot grant the Motion. Moving Defendant did not file and serve the Motion at least 16 court days prior to the hearing as required pursuant to Code Civ. Proc., § 1005, subd. (b).

Moreover, according to the proof of service, there is no indication that the Motion was served on Defendant Ridgeline Telecom, LLC, who has yet to file an answer but has been served with the summons and complaint.

Accordingly, the Court CONTINUES the hearing on the Motion to Wednesday, March 6, 2024 at 1:30 p.m. in this department so that Moving Defendant can provide proper notice of the Motion to all interested parties and can provide notice of the hearing with the appropriate timeliness pursuant to Code Civ. Proc., § 1005, subd. (b).

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] Trial is not currently scheduled for March 22, 2024. Trial is scheduled to commence on April 5, 2024. Thus, the Court assumes Moving Defendant made a typographical error in its notice of motion as to the current trial date or is instead referring to the Final Status Conference date which is March 22, 2024.

[2] The Motion references a declaration from a person with the last name of “Na.” However, no declaration from such individual was filed with the Motion. The sole declaration filed in support of the Motion is that of Nusha F. Ahmed (“Ahmed”).