Judge: Mark E. Windham, Case: 22STLC04711, Date: 2023-11-20 Tentative Ruling

Case Number: 22STLC04711    Hearing Date: November 20, 2023    Dept: 26

Whaling v. Whaling, et al.

MOTION TO CONTINUE TRIAL DATE

(CRC RULE 3.1332)

TENTATIVE RULING:

Defendant Mark David Whaling’s Motion to Continue Trial is GRANTED. THE TRIAL DATE IS CONTINUED TO MAY 14, 2024 AT 8:30 AM IN DEPARTMENT 26 IN THE SPRING STREET COURTHOUSE. ALL DISCOVERY AND MOTION DATES TO FOLLOW THE NEW TRIAL DATE.

ANALYSIS:

On July 18, 2022, Plaintiff Grace Kathryn Whaling, in pro per (“Plaintiff”) filed this personal injury action against Defendant Mark David Whaling (“Defendant”). Defendant, also in pro per, filed an answer on December 7, 2022.

On October 16, 2023, Defendant filed a substitution of attorney and the instant Motion to Continued Trial Date. Plaintiff filed an opposing declaration on November 6, 2023 and Defendant replied on November 13, 2023.

Discussion

“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.” (Cal. Rules of Court, Rule 3.1332, subd. (c).) The Court may look to the following factors in determining whether a trial continuance is warranted: (1) proximity of the trial date; (2) whether there was any previous continuance 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; (5) the prejudice that parties or witnesses will suffer as a result of the continuance; and (6) whether trial counsel is engaged in another trial.  (See generally, Cal. Rules of Court, Rule 3.1332, subd. (d)(1)-(11).) Additional factors for the Court to consider include a party’s excused inability to obtain essential testimony, documents, or other material evidence despite diligent efforts; whether all parties have stipulated to a continuance; and any other fact or circumstance relevant to the fair determination of the motion or application. (Cal. Rules of Court, Rule 3.1332, subds. (c), (d).)

Defendant argues that good cause exists for a continuance of the trial date, which is currently set for January 16, 2024, because he does not have training or knowledge on how to formally solicit information from Plainitff, who lives out-of-state. (Motion, Mark Whaling Decl., ¶4.) Defendant retained counsel on October 11, 2023 to help him prepare for trial. (Ibid.) In opposition, Plaintiff argues that Defendant has had 15 months to prepare for trial and has been able to litigate other Whaling v. Whaling cases, including Personal Protection Order #20969 and the parties’ pending dissolution proceeding. (Grace Whaling Decl., ¶3.) Plaintiff points to Code of Civil Procedure section 595.4 which provides that “[a] motion to postpone a trial on the ground of the absence of evidence can only be made upon affidavit showing the materiality of the evidence expected to be obtained, and that due diligence has been used to procure it.” (Code Civ. Proc., § 595.4.) While Defendant and the Court agrees that this specific statute is inapposite to trial continuances, as noted above, one of the factors for the Court to consider under Cal. Rules of Court rule 3.1332 includes the moving party’s diligence. Defendant has not demonstrated diligence in moving for the trial continuance as he answered the Complaint in December 2022 yet only sought counsel 11 months later.

The trial date is still three months away and there has been no prior continuance, which are factors that weigh in favor of a continuance. The length of the continuance, of at least five months seems excessive, however. Both parties claim they would be prejudiced if relief is granted to the other. However, Plaintiff’s claim of prejudice is somewhat confusing. She contends she will not be able to access medical care due to Defendant’s control of her finances and medical records. (Opp., Kathryn Whaling Decl., ¶¶7-8.) No evidence of this control, aside from Plaintiff’s declaration, is provided.

Based on the foregoing, the Court finds that the factors of Rule 3.1332 weigh in favor of the requested continuance of the trial date but limits the continuance to four months.

Conclusion

Defendant Mark David Whaling’s Motion to Continue Trial is GRANTED. THE TRIAL DATE IS CONTINUED TO MAY 14, 2024 AT 8:30 AM IN DEPARTMENT 26 IN THE SPRING STREET COURTHOUSE. ALL DISCOVERY AND MOTION DATES TO FOLLOW THE NEW TRIAL DATE.

Moving party to give notice.