Judge: Michael E. Whitaker, Case: 20STCV36105, Date: 2022-08-18 Tentative Ruling

Case Number: 20STCV36105    Hearing Date: August 18, 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

Plaintiff Anna Aruguette sued defendants Agustin Valladares and Garda CL West, Inc. (collectively, “Defendants”) based on a motor vehicle collision.  Defendants move to continue trial, which is currently set for September 16, 2022, to January 13, 2023, with all pre-trial motion and discovery cutoffs to be based on the new trial date.  Plaintiff has not filed an opposition to the motion.

The Court notes Defendants’ proof of service filed in connection with the motion does not establish the date and manner of service upon Plaintiff. The proof of service states the declarant “served the documents by placing them in an envelope or package addressed to the persons at the addresses listed above and providing them to a professional messenger service. (A proof of service executed by the messenger will be filed in compliance with the Code of Civil Procedure.)”  (See July 21, 2022 Proof of Service.) 

As Defendants would appear to acknowledge, a declaration signed by an individual who gave the papers to a third-party messenger or who “caused” the delivery is hearsay and thus insufficient to establish service. The Court is therefore unable to determine whether Plaintiff has afforded Deponent adequate notice of the motion per Code of Civil Procedure section 1005. (See Code Civ. Proc., § 1005, subd. (b).)

At the August 12, 2022 hearing, counsel for Defendants indicated that a supplemental proof of service has or will be filed with the Court which indicates that the moving papers were properly served on Plaintiff via a messenger service.  Thereafter Defendants filed on August 15, 2022 a proof of service indicating that the notice of motion and motion were personally served on July 21, 2022.  Therefore, the Court finds that Plaintiff was provided with proper notice of the August 12, 2022 hearing and failed to appear. 

On the merits, “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 advance the declaration of James P. McDonald (“McDonald”), counsel for Defendants.   McDonald declares in pertinent part that “[t]rial is currently set for September 16, 2022. Plaintiff's counsel has previously stipulated to a 90-day continuance to January 13, 2023.  On or about June 21, 2022, the parties filed a Stipulation to Continue Trial based on this agreement, however the court did not enter the order to continue trial for a lack of sufficient  showing of good cause in the filed Stipulation.  The parties have been diligent in conducting discovery, however, significant discovery remains to be completed. There is an Independent Medical Examination scheduled for August 11 , 2022, Further, the parties intend to mediate in order to settle the case prior to trial.  However, the parties will need to substantially complete expert discovery in order to fully evaluate the case for a meaningful mediation.”  (Declaration of James P. McDonald, ¶¶ 2-4.) 

Accordingly, with no opposition to the motion, 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 orders as follows:

• The trial date, currently set for September 16, 2022, is continued to January 31, 2023  at 8:30 AM in Department 32.

   

• The Final Status Conference, currently set for September 2, 2022, is continued to January 18, 2023 at 10:00 AM in Department 32.

   

• All discovery and pre-trial motion cut-off dates shall be based upon the trial of January 31, 2023.

• Per the Discovery Act, the Court orders the parties to 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 orders and file a proof of service of such.