Judge: Michael E. Whitaker, Case: 19STCV44739, Date: 2022-09-28 Tentative Ruling

Case Number: 19STCV44739    Hearing Date: September 28, 2022    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 Kelsey LeBlanc and Doug LeBlanc (collectively, “Defendants”) move for an order continuing the current October 6, 2022 trial date for 60 days.  Plaintiff opposes the motion.

ANALYSIS

As a preliminary matter, Plaintiff contends that Defendants’ motion is defective.  Based on the September 28, 2022 hearing, the notice of motion and motion should have been filed and served by September 2, 2022.  (Code Civ. Proc., § 1005, subd. (b).)  But Defendants filed and personally served the notice of motion and motion on September 6, 2022.  Thus, the Court finds that the motion untimely. 

Notwithstanding, the Court may consider papers that are not timely filed and served, unless “substantial rights” are affected.  (Cal. Rules of Court, rule 3.1300(d); Code Civ. Proc., § 475.)  The appearance of a party at the hearing of a motion and his or her opposition to the motion on the merits is a waiver of any procedural defects or irregularities in a motion.  (Carlton v. Quint (2000) 77 Cal.App.4th 690, 697.)  As Plaintiff has filed an opposition addressing the motion on the merits, the Court finds there has been no prejudice to Plaintiff and the Court will consider the motion.

“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 argue there is good cause for a trial continuance as they have been unable to complete discovery.  Specifically, Defendants indicate that they would like to conduct an independent medical examination of Plaintiff and have scheduled such examination for October 6, 2022, which is the earliest date available for the expert Defendants have retained.  Defendants also indicate that they have served subpoenas to obtain records and the responses are still pending.  Defendants further argue defense counsel is unavailable for trial as defense counsel has three other trials set to begin in the two days prior to the current October 6, 2022 trial date in this matter.

In opposition, Plaintiff argues that there is no good cause to continue the trial date because Defendants’ failure to obtain discovery within the proscribed deadlines which is a product of their own delay.  Plaintiff indicates that she provided substantive verified responses to written discovery over a year ago on August 4, 2021; that Defendants caused to be issued approximately 20 subpoenas to all of Plaintiff’s medical providers in August 2021 and October 2021; and that all providers had substantially responded and provided records in response to the issued subpoenas by the date of Plaintiff’s deposition on December 15, 2021.  Plaintiff asserts that, at the time of her deposition on December 15, 2021, Defendants’ counsel indicated they would be next setting Plaintiff’s medical exam. 

In addition, Plaintiff provides that, in May 2022, Plaintiff’s counsel spoke to Defendants’ counsel and inquired about the status of setting Plaintiff’s medical exam and Defendants’ counsel said he was working on it.  Plaintiff contends that the request for continuance based on the pending receipt of records is now moot as the two subpoenas have now been cancelled.  Plaintiff further asserts that, at no time prior to September 1, 2022, the date Defendants served a demand for orthopedic examination, did Defendants’ counsel ever propose any other dates for a medical exam.  Plaintiff also argues that Defendants agreed to the October 6, 2022 trial date in December 2021 and that current counsel’s trial schedule should have been known when she associated into this case in July 2022 as she is also counsel for Liberty Mutual.

As noted by Plaintiff, all discovery is now closed based upon the October 6, 2022 trial.  (See Code Civ. Proc., §§ 2024.020, subd. (a), 2024.030.)   In particular, non-expert discovery closed on September 6, 2022 and expert discovery closed on September 21, 2022.  (See December 15, 2021 Minute Order [“All dis/motion cut-off based on the trial date” of October 6, 2022].)   And to the extent that Defendants are seeking to complete discovery, non-expert and expert, a motion to continue the trial is not the proper manner in which to do so.  (See Code Civ. Proc., § 2024.020, subd. (b) [“Except as provided in Section 2024.050, a continuance or postponement of the trial date does not operate to reopen discovery proceedings”].)  Consequently, the Court does not find good cause for a continuance of the trial because Defendants have been unable to complete discovery in a timely manner. 

Regarding counsel for Defendants being potentially engaged in other trials two days before the trial in this action, the Court finds Defendants’ counsel impacted trial calendar to be insufficient good cause.  If any counsel is engaged in another trial when this action is called for trial, then the Court will take whatever steps may be necessary, including a continuance of the trial, to accommodate that counsel’s unavailability.    

CONCLUSION AND ORDER

            Therefore, the Court denies Defendants’ motion to continue trial.  Defendants shall provide notice of the Court’s ruling and file a proof of service of the same.