Judge: Lynette Gridiron Winston, Case: 23PSCV00098, Date: 2024-11-13 Tentative Ruling

Case Number: 23PSCV00098    Hearing Date: November 13, 2024    Dept: 6

CASE NAME:  CMBG Advisors, Inc. v. Luis Faura, et al. 

Defendants Luis Faura and Manuel Fernandez’s Motion to Continue Trial Date and All Related Dates 

TENTATIVE RULING 

The Court DENIES Defendants’ motion to continue trial date and all related deadlines. 

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

BACKGROUND 

This is a collection case. On January 11, 2023, plaintiff CMBG Advisors, Inc. (Plaintiff), as assignee for the benefit of C&F Foods, Inc., C&F Foods Logistics Services, Inc., and Arizona Flexible Packaging, Inc., filed this action against defendants Luis Faura, Manuel G. Fernandez (collectively, Defendants), and Does 1 through 10, alleging the sole cause of action for breach of fiduciary duty. 

On October 22, 2024,[1] Defendants moved to continue the trial date and all related deadlines. On October 29, 2024, Plaintiff opposed the motion. On November 5, 2024, Defendants replied. 

LEGAL STANDARD 

“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.) California Rules of Court, rule 3.1332 sets forth factors for the Court to consider in ruling on a motion to continue trial. (Cal. Rules of Court, rule 3.1332.) Whether the parties have stipulated to the postponement is a relevant factor for consideration. (See Code Civ. Proc., § 595.2; but see Lorraine v. McComb (1934) 220 Cal. 753, 756-757 [finding a stipulation to be merely “directory”].)

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).) 

DISCUSSION 

Summary of Arguments 

Defendants seek to continue trial on the grounds that: (1) essential discovery remains outstanding, including completing the depositions of Plaintiff’s president, James K. Baer, and Plaintiff’s person(s) most knowledgeable; (2) Plaintiff produced more than 980,000 documents in June 2024 that require the assistance of a third-party database management company review; and (3) Defendants received a physical copy of a server hard drive from Plaintiff on October 11, 2024, which presumably contains thousands of key documents relevant to this matter and will require additional time and third-party assistance to review. Defendants also mention that potentially highly relevant documentary evidence exists only in physical form in a warehouse located in Riverside, California. Defendants contend that, despite diligent efforts, they have not been able to complete discovery on the aforementioned matters, and that they will unlikely be able to complete the necessary discovery before the February 3, 2025 discovery cutoff. 

In opposition, Plaintiff contends the motion does not meet the requirements of Rule 3.1332 of the California Rules of Court because motion and supporting declaration do not make the affirmative showing required for such relief. Plaintiff contends that this case has been pending since January 2023, but Defendants did not contact Plaintiff until around September 2024 to set the deposition of James Baer, nor did they accept the two dates during October 2024 that Plaintiff offered for that deposition. Defendants contend Plaintiff served subpoenas for Mr. Baer and the persons most qualified without coordinating dates for their depositions, and the date selected was a Jewish holiday when some of Plaintiff’s counsel would be unavailable. Plaintiff’s counsel indicates having offered alternative dates, but did not receive a response. Plaintiff contends Defendants have also delayed Plaintiff’s depositions of several entities for which Defendant Luis Faura is designated as the person most knowledgeable. 

Plaintiff also contends that Defendants have had the ability to inspect or copy the boxes of documents from the warehouse in Canoga Park, i.e., not Riverside, for over a year now and have not done so, as Plaintiff identified the boxes of documents on September 15, 2023, in response to a discovery request. Plaintiff also contends it produced the PST e-mail files approximately five and a half months ago on May 8, 2024. Regarding the physical copy of a server hard drive, Plaintiff contends it has not been able to access the server data on the hard drive, and it is unclear whether the data will ultimately be accessible or even if it is reasonably calculated to lead to the discovery of admissible evidence. 

Analysis 

The Court finds that Defendants have not demonstrated good cause justifying the requested continuance, as they have not demonstrated diligence in their discovery efforts. Plaintiff disclosed on September 15, 2023, that it had over 1,300 boxes of hard-copy documents in storage. (Weber Decl., ¶ 5, Ex. B.) Defendants do not explain why they have failed to conduct further discovery of these documents over the past fourteen months. Defendants provided little evidence or explanation as to why they have not yet deposed James Baer or Plaintiff’s person(s) most knowledgeable. (Edgerton Decl., ¶ 14.) Plaintiff also demonstrated that it is uncertain whether the physical server hard drive copy Defendants received on October 11, 2024, is accessible. (Weber Decl., ¶ 9.) Defendants did not address this point in their reply. (See generally, Reply.) The Court also finds the probative value of the documents contained within the server hard drive is speculative, as Plaintiff only mentions the “potentially” relevant value of these documents. (Motion, 6:6-8.) The Court further notes that this action has been pending for almost two years and that the parties just recently stipulated to a continuance. (Stipulation and Order (7/24/24).) Additionally, trial is still approximately four months away, which should provide Defendants sufficient time to review the 980,000 plus documents produced in June 2024. (See Edgerton Decl., ¶ 9.) 

Based on the foregoing, the Court DENIES the motion. 

CONCLUSION 

The Court DENIES Defendants’ motion to continue trial date and all related deadlines. 

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