Judge: Michael P. Linfield, Case: 19STCV45653, Date: 2023-01-20 Tentative Ruling
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Case Number: 19STCV45653 Hearing Date: January 20, 2023 Dept: 34
SUBJECT: Motion to Continue Trial and All Related Trial Dates
Moving Party: Plaintiffs Nicole Abramson and Douglas Stork
Resp. Party: None
SUBJECT: Motion for Leave to File Second Amended Complaint
Moving Party: Plaintiffs Nicole Abramson and Douglas Stork
Resp. Party: None
Plaintiff’s Motion to Continue Trial and All Related Dates is DENIED.
Plaintiffs’ Motion for Leave to File Second Amended Complaint is DENIED.
BACKGROUND:
On December 17, 2019, Plaintiffs Nicole Abramson and Douglas Stork filed their Complaint against Defendants Anita Kovacic, Marine View Management, Inc., and BLK Properties, LLC on causes of action for breach of implied warranty of habitability, negligence, and breach of contract. This case regards damages Plaintiffs allege to have suffered and continue to suffer due to the mold in their home.
On April 6, 2021, Plaintiffs filed their First Amended Complaint.
On June 8, 2021, Defendants filed their Answer to the First Amended Complaint.
On December 22, 2022, Plaintiffs filed: (1) Motion to Continue Trial and All Related Trial Dates; and (2) Motion for Leave to File Second Amended Complaint.
Defendants have not filed oppositions or other responses to these motions.
On January 10, 2023, the Court granted Plaintiffs’ Ex Parte Application for an order to Continue Trial Briefly Due to the Surgical Procedure of Lead Trial Counsel. The Court continued the Jury Trial scheduled for January 23, 2023 to February 27, 2023.
ANALYSIS:
I. Motion to Continue Trial and All Related Trial Dates
A. Legal Standard
Pursuant to California Rules of Court Rule 3.1332(b), “[a] party seeking a continuance of the date set for trial, whether contested or uncontested or stipulated to by the parties, must make the request for a continuance by a noticed motion or an ex parte application under the rules in chapter 4 of this division, with supporting declarations. The party must make the motion or application as soon as reasonably practical once the necessity for the continuance is discovered.” “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.” (Cal. Rules of Court, Rule 3.1332(c); See also In re Marriage of Falcone (2008) 164 Cal.App.4th 814, 823
(“Continuances are granted only on an affirmative showing of good cause requiring a continuance.”).)
Rule 3.1332(c) indicates that circumstances that may indicate good cause include “the unavailability of trial counsel because of death, illness, or other excusable circumstances,” “[a] party's excused inability to obtain essential testimony, documents, or other material evidence despite diligent efforts,” and “[a] significant, unanticipated change in the status of the case a result of which the case is not ready for trial.”
Other factors to consider under California Rules of Court, Rule 3.1332(d) 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.”
B. Discussion
Plaintiffs move the Court to continue Trial until April 1, 2023, arguing that there is good cause for a continuance. (Motion to Continue Trial and All Related Dates, p. 6:7–9.) Plaintiffs cites the following reasons as good cause: (1) that on November 8, 2022, Defendants were given multiple notices by the City of El Segundo to perform repairs of the unsafe and hazardous staircase and stair railing at the subject property; (2) that Plaintiffs are seeking leave to amend and file their Second Amended Complaint, which adds causes of action for violation of Civil Code section 1942.4 and for breach of contract against Defendants Kovacic and BLK Properties, LLC; and (3) that the cause of action for violation of Civil Code section 1942.4 only became viable on or about December 13, 2022.
The motion is unopposed.
The Trial in this matter was originally set for June 1, 2021. Trial has since been continued six times: to October 13, 2021; to November 1, 2021; to April 18, 2022; to August 15, 2022; to January 23, 2023; and to February 27, 2023. On at least four occasions, the Court has stated, when it granted the motions to continued, that there would be no further continuances. (See Minute Orders of 3/25/2021, 4/5/2022, 6/1/2022 and 1/11/2023.)
On January 11, 2023, less than two weeks ago, the Court reluctantly granted Plaintiff's Motion to continue the trial.
This case was filed more than 3 years ago. Plaintiffs’ law firm as 8 attorneys; presumably anyone of the attorneys hired by the firm and admitted to practice law in the State of California can handle this trial.
In the six weeks, this Court has heard eleven motions and/or ex partes from the parties. This is not good lawyer. The Court has previously stated that it believes that counsel is playing games with its repeated requests for continuances.
The Court DENIES Plaintiff’s Motion to Continue Trial and All Related Dates.
II. Motion for Leave to File Second Amended Complaint
A. Legal Standard
The court may, in furtherance of justice and on any proper terms, allow a party to amend any pleading. (Code Civ. Proc., § 473, subd. (a)(1); Branick v. Downey Savings & Loan Association (2006) 39 Cal.4th 235, 242.)
The Court may deny the plaintiff’s leave to amend if there is prejudice to the opposing party, such as, for example, a required delay in the trial or added costs of preparation. (Kolani v. Gluska (1998) 64 Cal.App.4th 402, 411.)
B. Discussion
Plaintiffs move the Court for leave to file their Second Amended Complaint based on Plaintiffs’ discovery of new facts and desire to add new causes of action to their pleadings.
The Motion for Leave to File Second Amended Complaint is unopposed.
Plaintiffs have not shown good cause for the motion to file a Second Amended Complaint just one month before trial – a trial that was originally scheduled to take place in May 2021 and has been continued six times.
The Court DENIES Plaintiffs’ Motion for Leave to File Second Amended Complaint.
III. Conclusion
Plaintiff’s Motion to Continue Trial and All Related Dates is DENIED.
Plaintiffs’ Motion for Leave to File Second Amended Complaint is DENIED.