Judge: Michael E. Whitaker, Case: 20STCV21407, Date: 2023-02-06 Tentative Ruling

Case Number: 20STCV21407    Hearing Date: February 6, 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 Dean W. McIntyre and Sally A. McIntyre, individually and as Trustees of the McIntyre Trust (collectively, Defendants) move to continue the trial, and all related cutoff dates, which is currently set for March 6, 2023, to January 21, 2024, or a date thereafter convenient for the Court’s calendar.  Plaintiff Julie Woodbury (Plaintiff) opposes the motion. [1]  Defendants reply. 

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 complete discovery and have the opportunity have a Motion for Summary Judgment heard.  Defendants rely on the declaration of Defendants’ counsel, Sima Jonoobi (Counsel).  Counsel avers that despite good faith efforts by Defendants, Plaintiff refused to attend her deposition for 10 months.  (Declaration of Sima Jonoobi, ¶ 5.)  Once Plaintiff’s deposition was finally completed and her testimony evaluated, Defendants requested a motion for summary judgment date and the earliest date that the Court could provide for the hearing is November 21, 2023, after the current trial date of March 6, 2023.  (Declaration of Sima Jonoobi, ¶ 6.)  Counsel states that she has eight trials in January and February 2023.  (Declaration of Sima Jonoobi, ¶ 8.)  Additionally, Defendants await hearing on third party employer’s motion for protective order set for March 13, 2023 so that Defendants can obtain the needed testimony and evidence from the employer for the summary judgment motion.  (Declaration of Sima Jonoobi, ¶ 9.)  Finally, Counsel states that this is only the first request for a trial continuance in this case.  (Declaration of Sima Jonoobi, ¶ 10.)

In opposition, Plaintiff argues that Defendants could have brought their motion for summary judgment earlier and their failure to do so exhibits their lack of diligence and corresponding negligence.  Plaintiff additionally avers Defendants did not even file a timely motion for summary judgment, which was due no later than November 21, 2022, or 75 days prior to the hearing date that should have been set for February 4, 2023.  Plaintiff’s deposition was taken on August 9, 2022, which provided defense counsel plenty of time to prepare and file a motion for summary judgment.  Finally, Plaintiff attests that a thirteen month continuance will prejudice Plaintiff.

In reply, Defendants state that prior to trial and prior to filing their motion for summary judgment, Defendants need to complete the deposition of non-party witness Jamshed Parvaresh, owner of Super Fine Dry Cleaners, Inc. and Plaintiff’s employer at the time of the incident.  Mr. Parvaresh’s deposition was set by Plaintiff’s counsel for August 2, 2022.  However, it was not completed because of Plaintiff’s counsel badgered the witness and Mr. Parvaresh’ attorney terminated the deposition and filed a motion for protective order set for hearing on March 13, 2023.  As a result, Defense Counsel did not have an opportunity to question Mr. Parvaresh and obtain the critical and necessary information Defendants need in support of the Motion for Summary Judgement

The Court finds Defendants have shown good cause for a trial continuance pursuant to California Rules of Court, rule 3.1332.

CONCLUSION AND ORDER

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

• The trial date, currently set for March 6, 2023, is continued to January 25, 2024, at 8:30 AM in Department 32.

   

• The Final Status Conference, currently set for February 22, 2023, is continued to January 11, 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 January 25, 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.