Judge: Michael E. Whitaker, Case: 19STCV28538, Date: 2023-05-05 Tentative Ruling

Case Number: 19STCV28538    Hearing Date: May 5, 2023    Dept: 32

PLEASE NOTE:   Parties are encouraged to meet and confer concerning this tentative ruling to determine if a resolution may be reached.  If the parties are unable to reach a resolution and a party intends to submit on this tentative ruling, the party must send an email to the Court at sscdept32@lacourt.org indicating that party’s intention to submit.  The email shall include the case number, date and time of the hearing, counsel’s contact information (if applicable), and the identity of the party submitting on this tentative ruling.  If the Court does not receive an email indicating the parties are submitting on this tentative ruling and there are no appearances at the hearing, the Court may place the motion off calendar or adopt the tentative ruling as the order of the Court.  If all parties do not submit on this tentative ruling, they should arrange to appear in-person or remotely (which is highly encouraged).  Further, after the Court has posted/issued a tentative ruling, the Court has the inherent authority to prohibit the withdrawal of the subject motion and adopt the tentative ruling as the order of the Court. 

TENTATIVE RULING

MOTION

Defendants R.W. Selby & Co., Inc. and 7400 Sepulveda Investors, Ltd. (collectively, Defendants) move for an order to continue the trial, and all trial-related dates, which is currently set for June 15, 2023, to a date at least 30 days after the July 25, 2024 motion for summary judgment hearing date of Defendant 7400 Sepulveda Investors.  In the alternative, Defendants request the Court advance the hearing date of Defendants’ motions for summary judgment to a date 30 days prior to the current trial date of June 15, 2023.  Plaintiffs Richard Berlin and Rachel Berlin (collectively, Plaintiffs) oppose the motion.  Defendants reply.  

EVIDENCE

            With respect to Defendants’ evidentiary objections to the Declaration of Michael M. Marzban, the Court rules as follows:

1.      Overruled.

2.      Overruled.   

ANALYSIS

 “Continuances are granted only on an affirmative showing of good cause requiring a continuance.”  (In re Marriage of Falcone & Fyke (2008) 164 Cal.App.4th 814, 823.)  A trial court has broad discretion in considering a request for a trial continuance.  (Pham v. Nguyen (1997) 54 Cal.App.4th 11, 13-18.)  California Rules of Court, rule 3.1332 sets forth factors for the Court to consider in ruling on a motion to continue trial.  Whether the parties have stipulated to the postponement is a relevant factor for consideration.  (See Code Civ. Proc., § 595.2, but see Lorraine v. McComb (1934) 220 Cal. 753, 756-757 [finding a stipulation to be merely “directory”].)  

Here, Defendants seek a continuance of trial to accommodate Defendants’ motions for summary judgment hearing dates which are set for April 22, 2024 and July 25, 2024.  Defendants rely on the declaration of Defendants’ counsel, Adam J. Houtz (Counsel).  Counsel avers that his office substituted as Defendants’ counsel of record on January 17, 2023.  (Declaration of Adam J. Houtz, ¶ 3.)  On January 25, 2023, Counsel completed the depositions of Plaintiffs, and based on their testimony, concluded that Defendants each have meritorious arguments to advance in support of motions for summary judgment.  (Declaration of Adam J. Houtz, ¶ 5.)  On February 16, 2023, Counsel’s secretary reserved the earliest available hearing dates for Defendants’ respective motions for summary judgment which were April 22, 2024, and July 25, 2024.  (Declaration of Adam J. Houtz, ¶ 6.) 

On February 27 and 28, 2023, Counsel served and filed Defendants’ motions for summary judgment on Plaintiffs and with the Court.  (Declaration of Adam J. Houtz, ¶ 7.)  Counsel further notes that based on the current June 15, 2023 trial date, both motions for summary judgment were timely brought.  (Declaration of Adam J. Houtz, ¶ 7.)  Defendants argue they have a right to have their motions for summary judgment heard and thus have established good cause to continue trial in order to accommodate the hearings which are scheduled after the current trial date.  (See, e.g., Sentry Ins. Co. v. Superior Court (1989) 207 Cal. App. 3d 526, 529 [a trial court may not refuse to hear a summary judgment motion filed within the time limits of section 437c].) 

In opposition, Plaintiffs argue Defendants’ request to continue trial to accommodate the July 25, 2024 motion for summary judgment hearing date should be denied because such a continuance would cause the case to be heard beyond the 5-year statute of limitations.  (See Code Civ. Proc., § 583.310.)  Plaintiffs further contend that the Court should consider the Plaintiffs ages, 67 and 76, when balancing the interests of continuing the trial date.

In reply, Defendants note that they are amenable to stipulating to an extension of the five-year rule pursuant to Code of Civil Procedure section 583.330.

Accordingly, the Court finds Defendants have shown good cause for a trial continuance pursuant to California Rules of Court, rule 3.1332.  But to shorten the time necessary to continue the trial to accommodate the hearings on both motions for summary judgment, the Court will advance and re-set the motion for summary judgment scheduled for hearing on July 25, 2024. 

CONCLUSION AND ORDER

Therefore, the Court grants Defendant’s motion to continue trial and all trial related dates and orders as follows:

·         The Motion for Summary Judgment set for hearing on July 25, 2024 is advanced and re-set for hearing on April 22, 2024 at 1:30 PM in Department 32. 

·         The trial date, currently set for June 15, 2023, is continued to May 24, 2024, at 8:30 AM in Department 32.

·         The Final Status Conference, currently set for May 31, 2023, is continued to May 9, 2024 at 10:00 AM in Department 32.

·         All discovery and pre-trial motion cut-off dates shall be based upon the new trial date of May 24, 2024.

·         Per the Discovery Act, the parties shall meet and confer forthwith to schedule and complete all non-expert discovery and to prepare for the completion of expert discovery to obviate the need for a further continuance of the trial. 

·         No further continuance of the trial absent sufficient good cause. 

Defendants shall provide notice of the Court’s ruling and file a proof of service of such.