Judge Lynette Gridiron Winston, Case Number: 19PSCV01059, Date: 2024-03-14 Tentative Ruling

Judge: Lynette Gridiron Winston, Case: 19PSCV01059, Date: 2024-03-14 Tentative Ruling

Case Number: 19PSCV01059 Hearing Date: March 14, 2024 Dept: 6

CASE NAME: All Pro Communication Technologies, Inc. v. Hrach Rostami, et al.

Plaintiff’s Motion to Continue Trial

TENTATIVE RULING

The Court GRANTS Plaintiff’s motion to continue trial. The trial date of April 16, 2024, and the Final Status Conference date of March 25, 2024, are hereby advanced and continued. The new trial date and Final Status Conference date will be determined at the hearing on the motion.

Plaintiff is ordered to give notice of the Court’s ruling within five calendar days of this order.

BACKGROUND

This is a contractual fraud action. On November 25, 2019, plaintiff All Pro Communication Technologies, Inc. (Plaintiff) filed this action against defendants Hrach Rostami (Rostami), Hart Consulting Group, Inc., HR Consulting Group, Nurbeh Boghozian, Noble Data Technologies, Inc., Narbeh Iranosian, Rafik Tsaturyan, Tomik Gaprielian (collectively, Defendants) and Does 1 through 20. Plaintiff filed the operative Fourth Amended Complaint on April 18, 2022 against Defendants, alleging causes of action for breach of contract, breach of implied covenant of good faith and fair dealing, breach of fiduciary duty, unjust enrichment, civil conspiracy, accounting, embezzlement, conversion, fraud and concealment, unfair business practices, computer crimes (Cal. Penal Code § 502), aiding and abetting computer crimes, and conspiracy to commit computer crimes.

On June 14, 2021, Defendant Hrach Rostami filed the operative cross-complaint against All Pro Communication Technologies, Inc., Alex Acuna (Acuna), and Roes 1 through 20, alleging causes of action for declaratory relief, accounting, breach of contract, fraud and deceit – constructive fraud/embezzlement, conversion, money had and received, breach of fiduciary duty, and fraud and deceit – promise without intent to perform.

On February 20, 2024, Plaintiff filed a motion to continue trial. On March 1, 2024, Defendants Hrach Rostami, Hart Consulting Group, Inc., and HR Consulting Group (collectively, Opposing Parties) filed an opposition. On March 7, 2024, Plaintiff filed a reply.

LEGAL STANDARD

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.

(Cal. Rules of Court, rule 3.1332, subd. (c).)

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, subd. (d).)

“Continuances are granted only on an affirmative showing of good cause requiring a continuance.” (In re Marriage of Falcone & Fyke (2008) 164 Cal.App.4th 814, 823.) A trial court has broad discretion in considering a request for a trial continuance. (Pham v. Nguyen (1997) 54 Cal.App.4th 11, 13-18.)

DISCUSSION

Plaintiff seeks a trial continuance due to the unavailability of Cross-Defendant Alex Acuna, who will be out of the country at the time of trial on April 16, 2024. Plaintiff’s counsel indicates that he was unaware of Acuna’s unavailability when the trial was continued to its current date, and seeks a continuance of four weeks. Plaintiff also indicates that it has never previously brought a motion for a trial continuance. Plaintiff further argues there is no prejudice here, as Plaintiff will agree to a trial of May 14^th or any date thereafter, and states that Defendant Rostami is available for a later trial date.

The Opposing Parties contend that Plaintiff has engaged in gamesmanship and unreasonable refusals to allow depositions, which have significantly delayed their trial preparation and arguably preclude Plaintiff from any further continuances. Opposing Parties contend that Plaintiff’s motion mischaracterizes a conversation in an attempt to mislead the Court by saying Opposing Parties’ counsel offered a quid pro quo in exchange for an agreement to enter into a stipulation, which is not accurate. Opposing Parties further contend that based on Plaintiff’s conduct throughout this matter, no good cause or authority is cited to continue trial.

The Court finds that Plaintiff has demonstrated good cause warranting a brief trial continuance. The unavailability of a party and witness is a reasonable basis for doing so. (Cal. Rules of Court, rule 3.1332, subds. (c)(1), (c)(2).) The Court finds Plaintiff’s counsel’s explanation for the oversight regarding Acuna’s calendar to be reasonable and understandable. Moreover, opposing Parties’ opposition did not address this issue, which the Court construes as a tacit admission that Plaintiff’s argument is meritorious. (Holden v. City of San Diego (2019) 43 Cal.App.5th 404, 418; C. Opposing the Motion—and Rebutting the Opposition, Cal. Prac. Guide Civ. Pro. Before Trial Ch. 9(I)-C, ¶ 9:105.10.) The Court also finds the length of the continuance requested, i.e., four weeks, to be reasonable in light of Cross-Defendant Acuna’s unavailability. (Cal. Rules of Court, rule 3.1332, subd. (d)(3).)

Notwithstanding the foregoing, and barring any unforeseen circumstances, this is the last continuance the Court will grant in this action. There have been multiple continuances already. (See Opp., 2:7-17; Cal. Rules of Court, rule 3.1332, subd. (d)(2).) This action is also approaching five years since it was commenced. (Id., subd. (d)(11).)

Based on the foregoing, the Court GRANTS Plaintiff’s motion to continue trial.

CONCLUSION