Judge: Lisa R. Jaskol, Case: 22STCV20019, Date: 2024-11-07 Tentative Ruling
Case Number: 22STCV20019 Hearing Date: November 7, 2024 Dept: 28
Having considered the moving, opposition, and reply papers, the Court rules as follows.
BACKGROUND
On June 20, 2022, Plaintiff Amanda Montano (“Plaintiff”) filed this action against Defendants Los Angeles County Metropolitan Transportation Authority (“Metro”) and Does 1-100 for motor vehicle tort and general negligence.
On February 21, 2024, Plaintiff amended the complaint to include Defendant Joseph Aquino (“Aquino”) as Doe 1.
On July 27, 2022, Metro filed an answer.
On December 19, 2023, Plaintiff filed a motion to compel Metro to produce its employee Joseph Aquino to attend a deposition and testify. The motion was set to be heard on March 20, 2024. On March 6, 2024, Metro filed an opposition. On March 13, 2024, Plaintiff filed a reply. On March 20, 2024, the Court issued an order noting that while Metro was willing to provide Aquino for a deposition, he was on a medical leave. The Court continued the hearing to May 28, 2024 and ordered Metro to provide an update on when Aquino would be available for deposition.
On April 25, 2024, the Court dismissed Aquino without prejudice at Plaintiff’s request.
On May 24, 2024, Metro filed a supplemental response asserting that Aquino was still on medical leave, was unable to endure a deposition, and was hopeful that he would return to work in August 2024. Metro submitted its attorney’s declaration to support the supplemental response and asked the Court to continue the hearing for 90 days.
On May 28, 2024, Plaintiff filed a response arguing that the attorney declaration attached to Metro’s May 24, 2024 supplemental response did not show the attorney could competently testify about Aquino’s ability to testify. Plaintiff also asserted that sub rosa surveillance showed “a man identified as Joseph Aquino engaged in a variety of activities, including carrying objects, driving an automobile, and other activities” who “displays no sign that to a lay observer . . . would indicate weakness, illness, or incapacity of any kind, i.e., any justification for ‘medical leave’.” Plaintiff charged that Metro was claiming Aquino was on medical leave as a ploy or pretext to avoid a deposition. Plaintiff asked the Court to deny Metro’s request for a continuance, to compel Metro to produce Aquino for a deposition, and to impose sanctions.
On May 28, 2024, the Court issued a tentative ruling, heard argument, and continued the hearing to July 10, 2024.
On July 3, 2024, Metro filed its counsel’s declaration stating that on July 2, 2024, Aquino told Metro’s counsel (1) he is still on medical leave and expects to return to work in or around January 2025, (2) due to health concerns, he could not attend a deposition before he returns to work, and (3) he would be available for a deposition in February 2025.
On July 10, 2024, the Court issued a tentative ruling, heard argument, and continued the hearing to August 28, 2024.
On August 21, 2024, Metro filed a supplemental response in support of its opposition to Plaintiff’s motion to compel Aquino’s deposition.
On August 28, 2024, the Court granted Plaintiff’s motion to compel Metro to produce Aquino for deposition, ordered Metro to produce Aquino for deposition within 30 days, and imposed sanctions on Metro.
On September 25, 2024, Metro filed a motion to continue the trial. The motion was set for hearing on November 7, 2024. On October 23, 2024, Metro’s counsel filed a declaration supporting Metro’s motion to continue the trial. On October 25, 2024, Plaintiff filed an opposition. On October 31, 2024, Metro filed a reply.
On October 3, 2024, the Court denied Metro’s ex parte application to continue the trial. The Court stated that, while the ex parte application asserted that Aquino was recovering from surgery and therefore could not participate in trial, “Metro has provided no evidence to support the assertion. Metro has provided only counsel's hearsay statement that ‘Our office has been advised that unfortunately, Mr. Aquino has been experiencing serious health issues that will make him unable to take part in the defense of the case.’ ”
Trial
is currently scheduled for November 20, 2024.
LEGAL STANDARD
A. Motion to continue trial
California Rules of Court, rule 3.1332 provides:
“(a) Trial dates are firm
“To ensure the prompt disposition of civil cases, the dates assigned for a trial are firm. All parties and their counsel must regard the date set for trial as certain.
“(b) Motion or application
“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.
“(c) Grounds for continuance
“Although continuances of trials are disfavored, each request for a continuance must be considered on its own merits. The court may grant a continuance only on an affirmative showing of good cause requiring the continuance. Circumstances that may indicate good cause include:
“(1) The unavailability of an essential lay or expert witness because of death, illness, or other excusable circumstances;
“(2) The unavailability of a party because of death, illness, or other excusable circumstances;
“(3) The unavailability of trial counsel because of death, illness, or other excusable circumstances;
“(4) The substitution of trial counsel, but only where there is an affirmative showing that the substitution is required in the interests of justice;
“(5) The addition of a new party if:
“(A) The new party has not had a reasonable opportunity to conduct discovery and prepare for trial; or
“(B) The other parties have not had a reasonable opportunity to conduct discovery and prepare for trial in regard to the new party's involvement in the case;
“(6) A party's excused inability to obtain essential testimony, documents, or other material evidence despite diligent efforts; or
“(7) A significant, unanticipated change in the status of the case as a result of which the case is not ready for trial.
“(d) Other factors to be considered
“In ruling on a motion or application for continuance, the court must consider all the facts and circumstances that are relevant to the determination. These may include:
“(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.)
B. Motion 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.
(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.)
DISCUSSION
A. Metro’s motion to continue the trial to April 8, 2025
Metro asks the Court to continue the trial to April 8, 2025 or the next available date and continue “all related cut-off dates” because Aquino, who operated the bus involved in the accident at issue, “has been experiencing serious health issues that will make him unable to take part in the defense of the case.” (Motion pp. 2, 4.) According to Metro, “Mr. Aquino has been battling lung cancer and is still recovering from a surgery which included removal of part of his lung. He cannot sit for a trial on the trial date currently scheduled. Further, Mr. Aquino is currently on medical leave from his employment with Metro.” (Motion p. 5.)
To support Metro’s assertion that Aquino’s medical condition prevents him from attending the trial until April 2025, Metro’s counsel submitted a declaration containing hearsay statements from Aquino and his oncologist. (Yehoshua 9/25/24 dec. ¶ 5.) Metro has not submitted a declaration from a medical professional stating that Aquino cannot attend a trial until April 2025 due to his medical condition.
Plaintiff opposes the motion, arguing that Metro has provided no admissible evidence to support its assertion that Aquino’s medical condition prevents him from attending the trial until April 2025.
The Court has previously raised the lack of support for Metro’s contention that Aquino’s medical condition prevents him from being deposed or attending the trial. (See 8/28/24 minute order pp. 7-8; 10/3/24 minute order p. 2.) But Metro still has provided no admissible evidence supporting its position or offered a reason for its failure to provide this evidence.
Metro has the burden of establishing good cause for the continuance it is requesting. Metro has not carried this burden. The Court therefore denies Metro’s request to continue the trial to April 8, 2025.
B. Metro’s request for a “short continuance” to accommodate
its expert’s schedule
On October 23, 2024, Metro’s counsel filed a declaration stating that he was recently informed that “defendants' accident reconstructionist expert, Thomas Lugger, will be unavailable November 7, 2024-November 22, 2024.” In addition to Metro’s request for a continuance to April 8, 2025, Metro therefore seeks “a short continuance of the trial date” to accommodate its expert’s schedule. (Yehoshua 10/23/24 dec. ¶ 3.)
The
Court finds good cause and continues the trial to November 24, 2024 or the next
available date. The Court does not
continue or reopen discovery or related deadlines.
CONCLUSION
The Court DENIES Defendant Los Angeles County Metropolitan Transportation Authority’s motion to continue the trial to April 8, 2025 or the next available date and to continue related cut-off dates.
The Court GRANTS Defendant Los Angeles County Metropolitan Transportation Authority’s request for a “short continuance” of the trial. The Court continues the trial to November 24, 2024 or the next available date. The Court does not continue or reopen discovery or related deadlines.
Moving party is ordered to give notice of this ruling.
Moving party is ordered to file proof of service of this ruling with the Court within five days.