Judge: Michael E. Whitaker, Case: 21STCV05930, Date: 2023-04-17 Tentative Ruling

Case Number: 21STCV05930    Hearing Date: April 17, 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 Steven Fein and Sheila Fein (collectively, Defendants) moves for an order to continue the trial, and all trial-related dates, which is currently set for May 31, 2023, to a date sixty to ninety days after the scheduled hearing date for Defendants’ Motion for Summary Judgment.  Plaintiff Rodrigo Castillo (Plaintiff) opposes the motion.  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 accommodate the Motion for Summary Judgment hearing date which at the time of filing of the moving papers, was set for December 6, 2023.  Defendants rely on the declaration of Defendants’ counsel, Neil MacMillan (Counsel).  Counsel explains that based on his monitoring of the Los Angeles Superior Court’s motions calendar, hearing dates for motions for summary judgment are generally available approximately 18 months out.  (Declaration of Neil MacMillan, ¶ 2.)  Further, when dates do become available, they are usually made available less than 75 days before the hearing date, which would make fulfillment of the 75-day mandatory notice requirement impossible to fulfill.  (Declaration of Neil MacMillan, ¶ 2.)  Defendants argue they have a right to have their Motion for Summary Judgment heard and thus have established good cause to continue trial in order to accommodate the hearing which is 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, Plaintiff first notes that trial has already been continued once via ex parte application in July 2022, from August 16, 2022, to the current trial date of May 31, 2023.  Plaintiff further argues that Defendants have had opportunity to file their Motion for Summary Judgment for almost a year since, as Plaintiff contends, Defendants’ Motion for Summary Judgment is based entirely on Plaintiff’s deposition taken over a year ago.  Since that deposition Plaintiff avers that there has been many available motion hearing dates.  Plaintiff thus concludes that Defendants failed to establish good cause for continuing the trial.

On April 5, 2023, Defendants filed a Notice of Advanced Hearing Date on Motion for Summary Judgment, notifying the Court and parties to the action that the hearing date for Defendants’ Motion for Summary Judgment has been advanced from December 6, 2023 to June 21, 2023.

In reply, Defendants indicate that based on the recent advancement of their Motion for Summary Judgment hearing date, they now only request a short trial continuance to August or September of 2023.

Accordingly, 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 Defendant’s motion to continue trial and all trial related dates and orders as follows:

·       The trial date, currently set for May 31, 2023, is continued to August 9, 2023, at 8:30 AM in Department 32.

·       The Final Status Conference, currently set for May 16, 2023, is continued to July 26, 2023 10:00 AM in Department 32.

·       All discovery and pre-trial motion cut-off dates shall be based upon the new trial date of August 9, 2023.

·       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.