Judge Margaret Miller Bernal, Case BC643011 2022-08-31 Tentative Ruling

Judge: Margaret Miller Bernal, Case: BC643011, Date: 2022-08-31 Tentative Ruling

Case Number: BC643011 Hearing Date: August 31, 2022 Dept: SEF

SIMETA v. ALBERTA DEVELOPMENT PARTNERS LLC

CASE NO.: BC643011

HEARING: 08/31/22

TENTATIVE ORDER

I. Cross-Defendant CREW, INC.’s Motion to Continue Trial and all Corresponding Pre-Trial Deadlines is GRANTED in part. The Alternative Motion to Sever all Cross-Complaints against Crew, Inc. is DENIED without prejudice.

II. Defendants/Cross-Defendants/Cross-Complainants COMMAND PERFORMANCE CONSTRUCTORS, INC.; LYLE PARKS JR. CONSTRUCTION; ALBERTA TIERRA LUNA MANAGEMENT, LLC; PCCP IRG DOWNEY, LLC; and IRG DOWNEY, LLC’s Joint Application to Continue Trial and all Related Pre-Trial Deadlines is GRANTED.

Moving Parties to give Notice.

Plaintiff ALFREDO PEREZ’s Joinder to All Oppositions for an Order Continuing the Trial Date filed by Plaintiff Simeta is GRANTED.

Cross-Defendant COLONIAL ELECTRIC, INC’s Joinder to Cross-Defendant Crew Inc.’s Motion to Continue Trial and Supplemental Brief in Support of Ex Parte Application for Order to Continue Trial is GRANTED.

This personal injury action was filed on December 7, 2016. The Court notes that the parties to the action as of March 10, 2022 had previously stipulated to extend the five-year cutoff to June 6, 2023. (See 03/10/22 Stip. and Order.) At the time the March 10, 2022 Stipulation and Order was entered, Cross-Defendant CREW, INC. (“Crew”) was not yet a party to this case.

Crew moves for an order to continue trial and all corresponding pre-trial deadlines to a date no sooner than October 12, 2023, or any date thereafter. Crew argues that a trial continuance to October 12, 2023, or any date thereafter, is necessary because Crew was recently named as a Cross-Defendant and has not had a reasonable opportunity to conduct discovery, file dispositive motions, and prepare for trial. Alternatively, Crew moves for an order severing all Cross-Complaints against Crew form the main action of Plaintiffs Simeta and Perez for purposes of trial.

Defendants/Cross-Defendants/Cross-Complainants COMMAND PERFORMANCE CONSTRUCTORS, INC.; LYLE PARKS JR. CONSTRUCTION; ALBERTA TIERRA LUNA MANAGEMENT, LLC; PCCP IRG DOWNEY, LLC; and IRG DOWNEY, LLC (collectively “Joint Defendants”) separately move to continue trial and all corresponding pre-trial deadlines to May 17, 2023, or the Court’s first available date thereafter. Joint Defendants argue that there is no practical way to proceed with trial on October 12, 2022 because: (1) Six new cross-defendants have been added to this action and the case is not fully at issue; (2) there is outstanding discovery—Plaintiff Simeta’s five IME’s must be coordinated and scheduled in Samoa; and (3) Defendants are not ready to begin expert depositions.

Plaintiff Simeta opposes a trial continuance. Simeta argues that the newly filed Cross-Complaints have nothing to do with the “main” action. Simeta maintains that the claims against the newly added Cross-Defendants should not be litigated in the same action. Consequently, Simeta does not oppose Crew’s alternative request to sever the Cross-Complaints against Crew from the main action.

The Joint Defendants do not oppose Crew’s motion to continue trial but do oppose Crew’s request that all cross-actions against it be severed from the main action. Joint Defendants argue that the key issues of comparative fault and indemnity rights are inextricably intertwined.

Defendant COMMAND PERFORMANCE CONSTRUCTORS, INC. (“Command”) opposes Crew’s motion to sever all cross-complaints against Crew, arguing that two separate trials would be duplicative. Command maintains that Crew and Colonial Electric, Inc. “would be stuck with the allocations of liability they are awarded at the first trial in which they served as empty chairs with no one to defend them” if severance is granted. (Opp. 2:27-3:1.)

“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 case requiring the continuance. Circumstances that may indicate good cause include…. (2) The unavailability of a party because of death, illness, or other excusable circumstances…. (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.” (CRC Rule 3.1332(c).) The Court, in making its determination to continue the trial should consider the following factors: (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 unavailability 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.” (CRC Rule 3.1332(d).)

The Court finds that a continuance to May 2023 (depending on the Court and parties’ availabilities) is warranted due to the inability of newly-added parties to conduct discovery and prepare for trial. Further, it is undisputed that there is a plethora of outstanding discovery in this action— the Joint Defendants have not been able to complete discovery, despite their diligent efforts. However, the Court does not find that a continuance to October 12, 2023 is warranted or feasible at this time. As indicated above, the (then) parties to the action only stipulated to extend the 5 year cut off to June 2023. “The parties may extend the time within which an action must be brought to trial pursuant to this article by the following means: (a) By written stipulation…. (b) By oral agreement….” (CCP §583.330.)

The Motion to Continue Trial to a date to approximately May 2023 is GRANTED. All pre-trial deadlines will track the new trial date. The Court will confer with the parties at the hearing in order to select the new MSC, FSC, and Trial dates.

Crew’s alternative motion for severance is DENIED without prejudice. A motion for severance asks the Court for separate trials on certain issues. Generally, the purpose of such motion is to avoid prejudice, promote convenience, or allow for economic and efficient handling of the case. (See CCP §1048(b).) Also, “[t]he court may, when the convenience of witnesses, the ends of justice, or the economy and efficiency of handling the litigation would be promoted thereby… make an order… that the trial of any issue or any part thereof shall precede the trial of any other issue of any part thereof….” (CCP §598.) The comparative fault and indemnity issues are inextricably intertwined, and the Court does not find that judicial economy or efficiency would be served by severance at this time. However, Crew is not foreclosed from seeking the trial court’s reconsideration of this issue.