Judge: Mark A. Young, Case: 22SMCV01262, Date: 2023-10-03 Tentative Ruling
Case Number: 22SMCV01262 Hearing Date: March 27, 2024 Dept: M
CASE NAME: Williams v. the
Medical Office of Dr. Jamie S. Schwartz, et al.
CASE NO.: 22SMCV01262
MOTION: Motion
to Continue Trial
HEARING DATE: 3/27/2024
Legal
Standard
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.
Analysis
Plaintiff Tammy Williams moves for
a continuance of trial and related dates for at least ninety days from the
current trial date of April 8, 2024. Plaintiff argues that there have been
certain developments and delays in discovery which require additional time
before trial. Defendant does not oppose the continuance.
For instance, on September 22,
2023, Dr. Schwartz abruptly terminated his deposition due to an unexplained
emergency. (Patale Decl., ¶¶ 4-5, Ex. 2.) During the second session of the
deposition on January 18, 2024, Dr. Schwartz was not certain who was present
during the making of a consent video, which Plaintiff asserts as critical to the
consent issues in this case. (Id., ¶ 6.) Dr. Schwartz was unable to remember if
Evyn Escobar or Mersaydez McLucas had been present and made the video. (Ibid.) Dr.
Schwartz also testified that the reason fourteen seconds are missing between
the two consent videos that he previously produced is a result of the TouchMD
software that his medical office uses to memorialize electronic evidence. (Id.,
¶ 7). Because of the above testimony, Plaintiff determined that McLucas was a
critical witness to this case. In late January 2024, while opposing Defendant’s
MSJ, Plaintiff sought to notice the deposition of McLucas. (Id., ¶¶8-9, Ex. 3.)
Defendant did not respond, so Plaintiff unilaterally noticed McLucas’
deposition. (Id.) However, on February 15, 2023, Defendants informed Plaintiff
that they did not know McLucas’s whereabouts, even though they had previously
represented in verified written discovery responses that McLucas could be
deposed via Defendants’ counsel. (Id., ¶¶ 2-3, Ex. 1.) Apparently, McLucas is
no longer with Defendants’ medical offices. Plaintiff immediately began
researching service on McLucas. (¶¶ 12-13.) Plaintiff has made several attempts
at known addresses to no avail. (Id.) Plaintiff also engaged a private
investigator to locate and serve McLucas.
Plaintiff also seeks additional
discovery on TouchMD. Plaintiff is in the process of domesticating a foreign
SDT to TouchMD, which is located in Utah. (Id., ¶ 13.) Plaintiff asserts that
the medical records directly from TouchMD are essential evidence in this
action. Plaintiff requests a continuance to obtain this critical evidence.
Plaintiff demonstrates good cause for a trial continuance. Plaintiff
shows her excused inability to obtain material evidence despite diligent
efforts. Plaintiff reasonably believed
they could conduct the deposition of McLucas immediately following Schwartz’s
deposition with relative ease, given the prior representation that McLucas was
available for deposition through defense counsel. Plaintiff shows reasonable
efforts to locate McLucas after learning this was not the case. Plaintiff shows
reasonable efforts to obtain evidence directly from TouchMD following the
second session of the Schwartz deposition. Additionally, there have been no
other trial continuances in this matter.
Accordingly, the motion is GRANTED.
The Court will set a trial date that works with counsel’s schedules and the
Court’s calendar for May 2025. Related
dates, including discovery cut off, are to follow the new trial date per
statute.