Judge: Mark A. Young, Case: SC129512, Date: 2023-03-23 Tentative Ruling

Case Number: SC129512    Hearing Date: March 23, 2023    Dept: M

CASE NAME:           Goldberg v. Intex Design & Construction Inc., et al.

CASE NO.:                SC129512

MOTION:                  Motion to Continue Trial; Bifurcate Trial

HEARING DATE:   3/23/2023

BACKGROUND

Plaintiff Aimee Goldberg commenced this action on June 29, 2018, alleging construction defects against Defendants Intex Design & Construction Inc., Sama Eshragi, Ali Reza Ershandi, and Jose Ruelas Jimenez.  On February 19, 2020, Defendants filed a cross-complaint. The Cross-Complaint seeks equitable indemnity, partial indemnity, contribution, apportionment, and declaratory relief against third parties.  Subsequently, Cross-Complainants filed several amendments to name fictitiously-named roe defendants. Roe 1 was named as Studio H20/Pejman. On July 2, 2021, Mariano Espinoza dba ME Concrete was added as Roe 2. Pertinently, on August 19, 2022, Defendants added Roes 3 and 4: Hegoas Construction and Hutchinson Engineering Inc.

Legal Standard

Continue Trial

Pursuant to California Rules of Court, 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 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.”

California Rules of Court, rule 3.1332(d) sets forth other factors that are relevant in determining whether to grant a continuance.

Bifurcate Trial

Pursuant to Code of Civil Procedure § 1048(b), “[t]he court, in furtherance of convenience or to avoid prejudice, or when separate trials will be conducive to expedition and economy, may order a separate trial of any cause of action, including a cause of action asserted in a cross-complaint, or of any separate issue or of any number of causes of action or issues, preserving the right of trial by jury required by the Constitution or a statute of the state or of the United States.” Code of Civil Procedure § 1048 also authorizes a court to separate trial of any issue for furtherance of convenience or to avoid prejudice or where separate trials will be conducive to expedition and economy.

Granting or denying of a motion for separate trials lies within the trial court’s sound discretion and is subject to reversal on appeal only for clear abuse. (Grappo v Coventry Financial Corp. (1991) 235 Cal App 3d 496, 504.) “The major objective of bifurcated trials is to expedite and simplify the presentation of evidence.” (Foreman & Clark v. Fallon (1971) 3 Cal.3d 875, 888.) For example, bifurcation may “avoid wasting time and money on the trial of damages issues if the liability issue is resolved against plaintiff.” (Horton v Jones (1972) 26 Cal App 3d 952, 954.)

Analysis

Cross-Defendant Hegoas Construction Inc. moves to continue trial for a period of not less than six months, as well as a continuance of all relevant trial-related deadlines and cutoff dates to correspond with, and be calculated from, the new trial date. Alternatively, Hergoas seeks to bifurcate the trial such that the issues present in the operative complaint between Plaintiff Goldberg and Defendant Intex are adjudicated before the issues present in the cross-complaint between Cross-Complainant Intex and Cross-Defendant Hegoas.

No party opposes the request for a continuance. Furthermore, Defendants/Cross-Complainants Intex, Eshragi, Ershandi, and Jimenez stipulated to a continuance and also stipulated to extend the five-year cut off to allow the moving party to complete discovery. Plaintiffs would also apparently consent to this continuance, so long as the 5-year rule cut off is extended. On February 2, 2023, Hegoas met and conferred with Plaintiff’s counsel regarding a Stipulation to Continue Trial, to which Plaintiff was agreeable on the condition that all Parties agree to toll the requirement for Plaintiff to bring this action to trial for six months from the current date of expiration, December 29, 2023. (Hen. Decl. ¶ 13.)

This action was filed on June 29, 2018. Thus, this case has been pending for approximately four years and nine months. Furthermore, there have been numerous continuances. Trial has been set in this action six different times: November 12, 2019; April 27, 2020 (admittedly, COVID policies would have prevented this trial from going forward); July 12, 2021; September 27, 2021; May 2, 2022; and October 3, 2022.  

The Court is not inclined to bifurcate this trial for the same reasons discussed at the previous bifurcation motion. Certainly, the Court may exercise its discretion to sever Hegoas’s liability on the cross-complaint from the trial on the complaint and other cross-defendants. However, this would risk the needless waste of judicial resources and duplicative presentation of evidence.

As to a continuance, Hegoas claims they need time to conduct discovery, including depositions, written discovery, and expert inspections with respect to Hegoas’ involvement in the case. Indeed, substantial discovery needs to take place, such as the deposition of Plaintiff and the principals at Intex. Hegoas is currently working on written discovery and the retention of at least two necessary experts. Critically, one of Hegoas’ retained experts is “fully booked until April at the earliest” which would make it “unlikely” that he would be available for the current trial date on May 15, 2023, or the discovery cut-off date of April 17, 2023. Hergoas thus reasons that the only remedy available is a trial continuance, which will allow for adequate time for the parties to conduct the necessary discovery and investigation to prepare an adequate defense.

The Court does not find that a 6-month continuance would be justified by these facts. Based on these representations, it appears that with due diligence, Hegoas would be able to complete discovery, including expert discovery, well before that period. Therefore, the Court is not inclined to grant a 6-month extension, notwithstanding the fact that the request is unopposed. That said, a shorter continuance might be justified in order to allow the completion of discovery for the recently added party. Thus, good cause is shown for a 3-month continuance. The Court notes that this is the sixth continuance in this case, and as such, no further continuances will be allowed.  As a result, all parties will need to address any discovery or other related issues in a prompt manner. 

Accordingly, the motion for a continuance is GRANTED. Trial is set for October 9, 2023 at 9:30 a.m., and a final status conference for October 2, 2023 at 9:00 a.m. All related dates are continued accordingly.

With respect to conflicts in counsel’s schedule, this case will be almost five years old at that point and therefore, counsel will need to make themselves available on this trial date.