Judge Mark A. Young, Case Number: 22SMCV00326, Date: 2024-02-27 Tentative Ruling

Pursuant to California Rules of Court (CRC) Rule 3.1332(a), “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.” Under CRC Rule 3.1332(b), “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.”

Under CRC Rule 3.1332(c), “[a]lthough 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 include 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.”

CRC Rule 3.1332(d) sets forth other factors that are relevant in determining whether to grant a continuance.

Plaintiff Johnstone Moyer Inc. moves for a continuance of the trial, currently set for May 28, 2024. Plaintiff argues that a year-long continuance is necessary because there is outstanding discovery and there are four underlying matters in this action which are yet to be resolved—the Civil Wage and Penalty Assessments (“CWPAs”) issued by the Division of Labor Standards Enforcement (“DLSE”). Plaintiff argues that the outcomes of CWPAs will “frame the issues to be tried” regarding questions of liability and damages.

This case arises, in part, from the cited CWPAs. In 2019 and 2020, the DLSE issued a series of CWPAs against certain subcontractors of Plaintiff’s on the subject Project. Each CWPA named Plaintiff JMI as the prime contractor, cited the respective subcontractor for Labor Code violations (due to the misclassification of the Project as a private, as opposed to public, work), and assessed significant unpaid wages and penalties against the subcontractor. (See Scolari Decl., ¶¶ 4-8.) Later, on April 5, 2022, the DIR issued a formal determination that the Project was a public work and subject to prevailing wage requirements. (Id., ¶ 8.) GSN has withheld payment from Plaintiff on the grounds that Plaintiff has the duty to indemnify GSN and the other parties for the CWPAs, while Plaintiff contends that GSN and its agents are at fault for failing to identify the Project as a public work and misrepresenting it as a private work. Further, JPI brings a cross-complaint against JMI seeking damages regarding JPI’s CWPA. Counsel claims that “none of the CWPAs have been resolved” and explains that until there is resolution in these matters, whether by settlement or through hearings, the damages that each of the parties have allegedly incurred in connection with their claims will remain “speculative.” (¶¶ 10-11.)

Plaintiff fails to show good cause for a continuance. By counsel’s guess, there may be “hearing” dates by the end of the year. The Court finds such a time estimate arbitrary. Further, Plaintiff needs to explain the CWPA process, how the CWPAs have been unduly delayed, and what the rest of the CWPA process would even resolve. Plaintiff provides that each of these CWPAs are “pending” though it is unclear what that means, aside from the potential of a “hearing” at some point in 2024. (Scolari Decl., ¶¶ 3, 10.) Plaintiff notes that there have been some settlement efforts. (Id.) However, from the allegations and declarations, the Court is not certain what is left to resolve in the CWPAs, or what the nature of any further hearings would be. (Scolari Decl., ¶¶ 8-10; see SAC ¶¶ 40-42.) The CWPAs have been issued, penalties have been assessed, and the attempt to appeal the basis of the CWPAs failed. Thus, there appears nothing left of the CWPA process that could be outcome determinative here. Therefore, the Court is not inclined to grant a continuance to allow for the CWPAs to “resolve” at some uncertain point in the future.

Plaintiff also requests a continuance on the grounds that the parties in this matter require additional time to conduct depositions, review document productions, and assess the need for further discovery based on depositions and document review. From the record, Plaintiff has only recently begun substantial discovery efforts. To date, no party has conducted a deposition. (McGowan Decl., ¶ 4.) GSN has noticed the deposition of Plaintiff’s Person Most Knowledgeable. (McGowan Decl., ¶ 5.) Plaintiff propounded its first set of discovery, but Plaintiff could not access GSN’s initial production until mid-January. (Id., ¶ 6.) Plaintiff has responded to the first set of GSN Defendants’ discovery, which may be subject to a motion to compel in the future. (Id., ¶7.) GSN Defendants have offered dates in March for five of the six witnesses and anticipates providing dates in advance of the discovery cutoff for the remaining witness. (Hannifan Decl. ¶¶ 6-8.) The Court would expect more discovery efforts during the two-year pendency of this action, especially since the parties have been aware of this trial date for almost a year.