Judge: Michael E. Whitaker, Case: 21STCV11207, Date: 2022-08-03 Tentative Ruling

Case Number: 21STCV11207    Hearing Date: August 3, 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

Plaintiff Adam Dolewski sued defendant Dollar Tree Store, Inc. based on injuries Plaintiff alleges he sustained after spending a prolonged period of time in a walk-in freezer in a retail store owned and controlled by Defendant.  Defendant moves to continue trial, which is currently set for September 20, 2022, for at least 180 days, with all pre-trial motion and discovery cutoffs to be based on the new trial date.  Plaintiff opposes the motion.  

EVIDENCE

            The Court sustains Plaintiff’s objection No. 1 to the Declaration of Andrea Breuer in support of the motion.

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, Defendant seeks a trial continuance to permit Defendant time to complete necessary discovery.  According to counsel for Defendant, Andrea Breuer (“Breuer”), Defendant’s responses to Plaintiff’s written discovery and a site inspection of the subject retail store were significantly delayed due to Plaintiff’s refusal to enter into a stipulated protective order requested by Defendant.  (Declaration of Andrea Breuer, ¶¶ 5-9.)  Breuer states that Defendant was amenable to responding to Plaintiff’s written discovery and permitting Plaintiff access for a site inspection, but required the protective order to protect confidential and proprietary information contained on-site and in the request documents.  (Declaration of Andrea Breuer, ¶ 6.)  Breuer states that Plaintiff’s counsel consistently refused to stipulate to a protective order, but then changed his position once Plaintiff associated in new counsel in January 2022.  (Declaration of Andrea Breuer, ¶ 8.)  Plaintiff’s counsel thereafter agreed to stipulate to the protective order on January 26, 2022, after which time Defendant produced the requested documents and Plaintiff conducted its site inspection. (Ibid.)    Breuer states that Plaintiff’s refusal to stipulate to the protective order delayed Defendant’s production of requested documents by eight months and Plaintiff’s site inspection by eleven months. (Declaration of Andrea Breuer, ¶ 9.)  Breuer next states that Defendant encountered difficulty and delay in deposing Plaintiff due to conduct by counsel for Plaintiff.  (Declaration of Andrea Breuer, ¶¶ 10-13.)  Breuer therefore concludes that Defendant has been prejudiced by Plaintiff’s unjustified tactics that have caused discovery in this case to be significantly delayed.  (Declaration of Andrea Breuer, ¶ 14.)  

In opposition, Plaintiff argues that Defendant has not shown good cause for a continuance.  Specifically, Plaintiff contends that while Defendant’s arguments concerning Defendant’s delay in responding to Plaintiff’s written discovery and timely permitting Plaintiff to conduct a site inspection would likely qualify as grounds for Plaintiff’s request to continue, Defendant has not shown any cause for its own delay in diligently pursuing discovery during that time.  According to counsel for Plaintiff, Christopher V. Bulone (“Bulone”), Plaintiff has, since the inception of the case in March 2021, (1) responded to Defendant’s form interrogatories, special interrogatories, inspection demands, and request for admissions; (2) supplemented those responses; and (3) produced over 3,000 pages of medical records.  (Declaration of Christopher V. Bulone, ¶ 7.)  Bulone also states that while he denies any alleged wrongdoing during Plaintiff’s deposition on June 22, 2022, counsel for Plaintiff is willing to present Plaintiff for a second deposition on short notice in the interest of allowing the case to proceed to trial on the presently scheduled date.  (Declaration of Christopher V. Bulone, ¶ 9.) 

In reply, Defendant represents that it intends to complete its deposition of Plaintiff – which will be subject of a motion for protective order and/or motion to compel answers – and depose Plaintiff’s parents.  Defendant also asserts that Plaintiff seven recently-noticed depositions as to Defendant’s employees and person(s) most knowledgeable will require time and the dates set by Plaintiff will need to be continued.  Defendant therefore argues a continuance will benefit both parties. Defendant also indicates that, as of the filing date of the reply, Defendant is still awaiting the production of Plaintiff’s subpoenaed pre-incident medical records concerning his mental health care and diagnosis before the incident. 

Accordingly, as it appears both sides require additional time to conduct necessary discovery, the Court finds Defendant has 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 orders as follows:

• The trial date, currently set for September 20, 2022, is continued to June 6, 2023 at 8:30 AM in Department 32.

   

• The Final Status Conference, currently set for September 6, 2022, is continued to May 22, 2023 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 June 6, 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.