Judge: Michael E. Whitaker, Case: 22SMCV02399, Date: 2025-01-08 Tentative Ruling

Case Number: 22SMCV02399    Hearing Date: January 8, 2025    Dept: 207

TENTATIVE RULING

MOTION

This case arises from a construction defect dispute.  Plaintiffs Masa Sekulic and Nanad Sekulic (“Plaintiffs”) filed the original complaint on November 18, 2022.  On December 29, 2022, Defendant and Cross-Complainant SoCal Kitchen Bath Inc. (“SoCal”) filed a cross-complaint naming, among others, Cross-Defendant Demand Inc. (“Demand”).  Demand was personally served with the summons and cross-complaint on January 11, 2023.  Default was entered against Demand on March 7, 2023.

On April 2, 2024, SoCal and Demand filed a stipulation to set aside “The Request for Entry of Default entered on March 7, 2023, 2023 [sic] as to Cross-Defendant Demand, Inc.”  However, the parties neither filed, nor did the Court sign, an order setting aside the entry of default against Demand. 

Demand subsequently electronically filed an answer to SoCal’s cross-complaint on May 8, 2024. 

Demand now moves to continue the trial currently scheduled for February 25, 2025.  Plaintiffs oppose the motion and Demand replies. 

ANALYSIS

            California Rules of Court, Rule 3.1332(c), provides:

Although continuances of trials are disfavored, each request for a continuance must be considered on its own merits.  The court may grant a continuance only on an affirmative showing of good cause requiring the continuance.  Circumstances that may indicate good cause include:

(1)  The unavailability of an essential lay or expert witness because of death, illness, or other excusable circumstances;

(2)  The unavailability of a party because of death, illness, or other excusable circumstances;

(3)  The unavailability of trial counsel because of death, illness, or other excusable circumstances;

(4)  The substitution of trial counsel, but only where there is an affirmative showing that the substitution is required in the interests of justice;

(5)  The addition of a new party if:

(A)  The new party has not had a reasonable opportunity to conduct discovery and prepare for trial; or

(B)  The other parties have not had a reasonable opportunity to conduct discovery and prepare for trial in regard to the new party's involvement in the case;

(6)  A party's excused inability to obtain essential testimony, documents, or other material evidence despite diligent efforts; or

(7)  A significant, unanticipated change in the status of the case as a result of which the case is not ready for trial.

Factors the Court considers in ruling on a motion for continuance include:

(1)  The proximity of the trial date;

(2)  Whether there was any previous continuance, extension of time, or delay of trial due to any party;

(3)  The length of the continuance requested;

(4)  The availability of alternative means to address the problem that gave rise to the motion or application for a continuance;

(5)  The prejudice that parties or witnesses will suffer as a result of the continuance;

(6)  If the case is entitled to a preferential trial setting, the reasons for that status and whether the need for a continuance outweighs the need to avoid delay;

(7)  The court's calendar and the impact of granting a continuance on other pending trials;

(8)  Whether trial counsel is engaged in another trial;

(9)  Whether all parties have stipulated to a continuance;

(10)  Whether the interests of justice are best served by a continuance, by the trial of the matter, or by imposing conditions on the continuance; and

(11)  Any other fact or circumstance relevant to the fair determination of the motion or application.

(Rule 3.1332(d).)

            Demand requests a continuance of the final status conference, trial, and discovery cut-off dates to “late April or May 2025” on the grounds that Demand did not realize until the November 18, 2024 mediation that it was going to be the primary focus of Plaintiffs’ construction defect claims, and it was not involved in Plaintiffs’ expert water intrusion testing or walk-throughs done on April 19 and 25, 2023, September 5, 2023, and February 5 and 8, 2024, presumably because Demand was in default at the time.  As such, Demand seeks to “open drywall areas near the alleged water intrusion to try and discovery whether in fact, it is due to improperly applied stucco, or perhaps an improper door or window installation[.]”

            Further, Demand indicates that no depositions have been taken, and “with the impending holiday season” the depositions will not be scheduled until “early February 2025.” 

            As a threshold matter, the Court finds that because no order has been requested or entered to set aside Demand’s default, Demand lacks standing to request a trial continuance, or even participate in the trial at all.[1] 

            Moreover, the Court does not find a trial continuance warranted under the circumstances.  Demand’s voluntary failure to respond to the cross-complaint or otherwise attempt to participate in the litigation until April 2024 does not warrant a trial continuance.  Neither does the parties’ apparent lack of diligence in timely completing their discovery.  Nor does Demand’s sudden realization at the November 18, 2024 mediation that it may be seriously implicated in the water intrusion defects warrant a continuance.  Demand has been aware of its potential liability since it was served with the cross-complaint on January 11, 2023, yet apparently did nothing to investigate or protect its interests for nearly two years.  In short, the Court does not find Demand’s arguments to constitute good cause warranting a trial continuance of a case involving numerous other parties and cross-complaints. 

CONCLUSION AND ORDER

Therefore, the Court denies Demand’s motion for a continuance of the final status conference, trial, and related discovery cut-off dates. 

            Plaintiffs shall provide notice of the Court’s ruling and file the notice with a proof of service forthwith.

DATED:  January 8, 2025                                                      ___________________________

                                                                                          Michael E. Whitaker

                                                                                          Judge of the Superior Court