Judge: Lisa R. Jaskol, Case: 22STCV23145, Date: 2024-08-07 Tentative Ruling
Case Number: 22STCV23145 Hearing Date: August 7, 2024 Dept: 28
Having considered the moving, opposition, reply, and ex parte papers, the Court rules as follows.
BACKGROUND
On July 18, 2022, Plaintiff Shamsun Nahar Khan (“Plaintiff”) filed this action against Defendants Joseph William Schiffer (“Defendant”) and Does 1-50 for negligence.
On August 19, 2022, Defendant filed an answer.
On February 28, 2024, the Court granted in part Plaintiff’s ex parte application to continue the trial and continued the trial from April 15, 2024 to September 10, 2024. The Court declined to continue or reopen discovery, observing that the ex parte application did not specifically request that discovery be continued or reopened and that Defendant opposed a continuance or reopening of discovery. The denial was without prejudice to Plaintiff filing a noticed motion.
On May 20, 2024, Plaintiff filed a motion “Motion for Order Modifying the Order Dated February 28, 2024 Denying the Continuation or Reopening of Discovery.” The motion was set for hearing on August 7, 2024. On July 25, 2024, Defendant filed an opposition. On July 31, 2024, Plaintiff filed a reply.
On July 31, 2024, Plaintiff filed an ex parte application to continue the trial for at least 120 days. The ex parte application does not ask the Court to continue or reopen discovery. The application was set for hearing on August 7, 2024.
Trial is currently scheduled for September 10, 2024.
PARTIES’ REQUESTS
Plaintiff asks the Court to modify its February 28, 2024 order, reopen discovery, and continue the trial.
Defendant asks the Court to deny the motion to modify the February 28, 2024 order.
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.
“(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.)
DISCUSSION
A. Motion to modify February 28, 2024 order
Defendant argues that Plaintiff’s motion to modify the Court’s February 28, 2024 order is not timely under Code of Civil Procedure section 1008, which governs motions for reconsideration.
Code of Civil Procedure section 1008 does not apply here because the Court’s February 28, 2024 order was made without prejudice to a noticed motion seeking to continue or reopen discovery. (See Farber v. Bay View Terrace Homeowners Assn. (2006) 141 Cal.App.4th 1007, 1015.)
The Court instead construes Plaintiff’s motion as a motion to reopen discovery under Code of Civil Procedure section 2024.050. (See Motion p. 5 [“. . . the Court should grant the Plaintiff’s motion to reopen discovery”].)
A motion to reopen discovery “shall be accompanied by a meet and confer declaration under Section 2016.040.” (Code Civ. Proc., § 2024.050, subd. (a).) A meet and confer declaration under Code of Civil Procedure section 2016.040 “shall state facts showing a reasonable and good faith attempt at an informal resolution of each issue presented by the motion.” (Code Civ. Proc., § 2016.040.) Plaintiff has provided a declaration showing that counsel met and conferred about scheduling the motion. However, the declaration does not show “a reasonable and good faith attempt at an informal resolution of each issue presented by the motion.” (Code Civ. Proc., § 2016.040.) Therefore, the Court denies the motion.
Because the Court denies the motion based on the lack of a meet and confer declaration, the Court does not decide whether the motion otherwise satisfies the requirements of Code of Civil Procedure section 2024.050.
The Court denies the motion to reopen discovery.
B. Ex parte application to continue the trial
Plaintiff asks the Court to continue the trial at least 120 days because (1) Plaintiff’s counsel has sustained a concussion, impairing his cognitive functions and ability to prepare for trial and (2) Defendant’s counsel has not provided reciprocal scheduling accommodations. (Plaintiff also cites the motion to reopen discovery, which the Court has denied.)
The Court finds good cause and continues the trial for 30 days or to the next available date based on Plaintiff’s counsel’s medical condition. Plaintiff has provided no evidence or argument, however, showing that counsel’s medical condition warrants a continuance of 120 days.
The ex parte application does not ask the Court to reopen or continue discovery. The Court does not reopen or continue discovery.
CONCLUSION
The Court DENIES Plaintiff Shamsun Nahar Khan’s “Motion for Order Modifying the Order Dated February 28, 2024 Denying the Continuation or Reopening of Discovery,” which the Court construes as a motion to reopen discovery.
The Court GRANTS in part Plaintiff Shamsun Nahar Khan’s ex parte application to continue the trial. The Court continues the trial for 30 days or to the next available date. The final status conference date will be based on the new trial date. In all other respects, the Court DENIES the ex parte application.
Moving party is ordered to give notice of this ruling.
Moving party is ordered to file the proof of service of this ruling with the Court within five days.