Judge: Lisa R. Jaskol, Case: 21STCV12320, Date: 2023-12-15 Tentative Ruling

Case Number: 21STCV12320    Hearing Date: December 15, 2023    Dept: 28

Having considered the moving, opposing, and reply papers, the Court rules as follows.  

BACKGROUND 

On April 1, 2021, Plaintiff Shelley Wertz (“Plaintiff”) filed this action against Defendants 756 Ridgeley, LLC, Moss Management Services, Inc. dba Moss & Company Property Management, and Does 1-350 for negligence and premises liability.  On September 30, 2022, Plaintiff amended the complaint to include Defendant Farid Rahnamay Barmaki (“Barmaki”) as Doe 336.  On November 14, 2022, Barmaki filed an answer. 

On July 29, 2021, Defendants Moss Management Services, Inc. dba Moss & Company Property Management and 756 Ridgeley, LLC (“Defendants”) filed an answer and a cross-complaint against Cross-Defendants Roes 1-50 for equitable indemnity, contractual indemnity, contribution, apportionment, and declaratory relief.  On May 6, 2022, Defendants amended the cross-complaint to include Cross-Defendant Moustafa Rahmani as Roe 1.  On August 19, 2022, Defendants amended the cross-complaint to include Cross-Defendant Barmaki as Roe 2.  On October 11, 2023, Barmaki filed an answer. 

On September 26, 2022, Barmaki filed a cross-complaint against Defendants and Moes 100 for general negligence, premises liability, breach of the implied warranty of habitability, breach of contract, and breach of the implied covenant of good faith and fair dealing.  On October 26, 2022, Defendants filed an answer. 

On September 4, 2023, the parties signed a stipulation to continue the case.  The stipulation stated that “All discovery completion dates, including those related to expert designations (which were waived), will not be extended and will continue to be determined by the existing trial date of October 16, 2023.”  The Court continued the trial to January 22, 2024. 

On October 30, 2023, new counsel associated into the case for Defendants. 

On November 13, 2023, Defendants filed a motion to continue the trial and related dates.  On December 4, 2023, Plaintiff and Barmaki filed oppositions.  On December 8, 2023, Defendants filed a reply. 

The trial is currently scheduled for January 22, 2024. 

PARTIES’ REQUESTS 

Defendants ask the Court to continue the trial and all related dates for four months. 

Plaintiff and Barmaki ask the Court to deny the motion. 

LEGAL STANDARD 

A.   Request to continue trial 

California Rules of Court, rule 3.1332(b), provides that “a party seeking a continuance of the date set for trial, whether contested or uncontested or stipulated to by the parties, must make the request for a continuance by a noticed motion or an ex parte application under the rules in chapter 4 of this division, with supporting declarations. The party must make the motion or application as soon as reasonably practical once the necessity for the continuance is discovered.” 

          Under 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. Circumstances that may indicate good cause include “a party's excused inability to obtain essential testimony, documents, or other material evidence despite diligent efforts,” or the unavailability of a party, counsel, or expert due to death, illness or other excusable circumstance. The Court should consider all facts and circumstances relevant to the determination, such as proximity of the trial date, prior continuances, prejudice suffered, whether all parties have stipulated to a continuance, and whether the interests of justice are served. (Cal. Rules of Court, rule 3.1332(d).) 

B.   Request to continue or reopen discovery 

Code of Civil Procedure section 2024.020 provides: 

“(a) Except as otherwise provided in this chapter, any party shall be entitled as a matter of right to complete discovery proceedings on or before the 30th day, and to have motions concerning discovery heard on or before the 15th day, before the date initially set for the trial of the action. 

“(b) Except as provided in Section 2024.050, a continuance or postponement of the trial date does not operate to reopen discovery proceedings.” 

(Code Civ. Proc., § 2024.020.) 

Code of Civil Procedure section 2024.050 provides: 

“(a) On motion of any party, the court may grant leave to complete discovery proceedings, or to have a motion concerning discovery heard, closer to the initial trial date, or to reopen discovery after a new trial date has been set. This motion shall be accompanied by a meet and confer declaration under Section 2016.040. 

“(b) In exercising its discretion to grant or deny this motion, the court shall take into consideration any matter relevant to the leave requested, including, but not limited to, the following: 

“(1) The necessity and the reasons for the discovery. 

“(2) The diligence or lack of diligence of the party seeking the discovery or the hearing of a discovery motion, and the reasons that the discovery was not completed or that the discovery motion was not heard earlier. 

“(3) Any likelihood that permitting the discovery or hearing the discovery motion will prevent the case from going to trial on the date set, or otherwise interfere with the trial calendar, or result in prejudice to any other party. 

“(4) The length of time that has elapsed between any date previously set, and the date presently set, for the trial of the action. 

“(c) The court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against any party, person, or attorney who unsuccessfully makes or opposes a motion to extend or to reopen discovery, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.” 

(Code Civ. Proc., § 2024.050.) 

Code of Civil Procedure section 2016.040 provides: “A meet and confer declaration in support of a motion shall state facts showing a reasonable and good faith attempt at an informal resolution of each issue presented by the motion.” 

DISCUSSION 

Defendants ask the Court to grant a new trial and reopen discovery because Defendants’ previous counsel provided deficient representation.  According to Defendants, their previous counsel failed to conduct basic discovery, serve a demand for expert designation, or update the insurer paying for the defense. 

Plaintiff and Barmaki argue that Defendants have failed to establish good cause for a continuance and, in seeking to reopen discovery, Defendants are violating their agreement, contained in the September stipulation, to keep discovery closed.  Plaintiff and Barmaki also argue they will be prejudiced by a continuance. 

The Court finds that Defendants have established good cause for a continuance.  Defendants have presented evidence that it was only after they retained new counsel – and after they stipulated that discovery would remain closed – that they learned the extent of prior counsel’s failure to prepare the case for trial.  The deficiencies that new counsel identified may deprive Defendants of the ability to present a defense absent a continuance and reopening of discovery. 

The Court grants the motion. 

CONCLUSION 

The Court GRANTS the motion of Defendants Moss Management Services, Inc. dba Moss & Company Property Management and 756 Ridgeley, LLC to continue the trial.  The Court continues the trial from January 22, 2024, to May 22, 2024 at 8:30 a.m. in Department 28 of the Spring Street Courthouse.   The Court continues the Final Status Conference from January 8, 2024 to May 8, 2024, at 10:00 a.m. in Department 28 of the Spring Street Courthouse.  All related dates will trail the new trial date. 

No further continuances will be granted without a compelling showing of good cause.

Moving parties are ordered to give notice of this ruling. 

Moving parties are ordered to file a proof of service of this ruling within five days.