Judge: Michael P. Linfield, Case: 20STCV38469, Date: 2022-09-28 Tentative Ruling

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Case Number: 20STCV38469    Hearing Date: September 28, 2022    Dept: 34

SUBJECT:                 Defendant Bruce Watanabe’s Motion to Continue Trial and All Related Dates

Moving Party:          Defendant Bruce Watanabe (“Watanabe”)

Resp. Party:             None

Defendant Bruce Watanabe’s Motion to Continue Trial and All Related Dates is DENIED.

I.           BACKGROUND

On October 7, 2020, Plaintiff Matevosian Enterprises, Inc. dba Nationwide Distributor, filed a complaint against Defendants MassGenie, Inc., Bruce Watanabe, Sam Kim, and Dan Devries, alleging the following causes of action:

1.           Breach of Contract;

2.           Breach of the Covenant of Good Faith and Fair Dealing;

3.           Violation of Business and Professions Code § 17200;

4.           Fraud; and

5.           Intentional Interference with Contractual Relations

On January 20, 2021, default was entered against Defendants MassGenie, Inc., Bruce Watanabe, Dan Devries, and Sam Kim. (Minute Order, April 5, 2021, p. 1.)

On August 30, 2021, the Court granted Defendants MassGenie, Inc., Bruce Watanabe, Sam Kim, and Dan Devries motion to set aside default and default judgment, "conditioned on the payment of Plaintiff's attorney's fees in the amount of $16,955.24 (Minute Order, August 30, 2021, p. 1.)

On April 22, 2022, Howard & Howard Attorneys, PLLC filed four motions to be relieved as counsel.

On May 13, 2022, the Court denied Howard & Howard Attorneys, PLLC’s four motions to be relieved as counsel.

On May 19, 2022 and May 20, 2022, Robert L. Rosenthal, and Steven E. Kish, III of Howard and Howard Attorneys PLLC filed four motions to be relieved as counsel. The motions are unopposed.

On June 14, 2022, the Court denied Robert L. Rosenthal, and Steven E. Kish, III of Howard and Howard Attorneys PLLC's Motions to Be Relieved as Counsel for MassGenie, Inc., Sam Kim, Bruce Watanabe, and David Devries.

On August 25, 2022, Defendant Dan Devries (“Devries”) moved the Court “for a Judgment on the Pleadings pursuant to California Code of Civil Procedure § 43 8, as the entire Complaint filed by Plaintiff, MATEVOSIAN ENTERPRISES, INC. dba NATIONWIDE DISTRIBUTOR ("Plaintiff'), fails to state facts sufficient to constitute a cause of action against De Vries.” (Motion for Judgment on the Pleadings (“MJOP”), filed August 25, 2022, p. 1:27—2:2.)

On August 30, 2022, Defendant Bruce Watanabe moved the Court “for an order continuing the court trial in the above referenced action (the “Motion”), which is currently scheduled for October 18, 2022, to after March 18, 2023 or a date thereafter that is convenient to the Court's calendar. Defendant also asks for a continuance of the discovery and law and motion cut-off dates so that they correspond to the new trial date.” (Motion, p. 2:1-5.) The motion is unopposed.

On September 8, 2022, Plaintiff Matevosian Enterprises, Inc., dba Nationwide Distributor, a California corporation (“Matevosian”) opposed Devries’ motion for judgment on the pleadings.

On September 14, 2022, Devries replied to Matevosian’s opposition.

On September 19, 2022, the Court denied Defendant Dan Devries’ Motion for Judgment on the Pleadings.

II.        ANALYSIS

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

Watanabe’s limited scope counsel Ryan A. Ellis represented him to “(1) seek the continuance of the trial date; (2) seek a continuance of the deposition of Mr. Watanabe; and (3) attend the deposition of co-Defendant Dan DeVries.” (Ellis Decl., ¶ 2.) Ellis did not agree to provide further services unless a trial continuance is secured. (Ellis Decl., ¶ 3.) Ellis notes that he cannot adequately represent Mr. Watanabe and “determine whether additional discovery is needed” until he receives “all the pleadings, discovery, and file from Mr. Watanabe and his former counsel (Howard & Howard Attorneys PLLC)”. (Ellis Decl., ¶ 5.)

On April 25, 2022, Defendants MassGenie, Inc., Bruce Watanabe, Sam Kim, and Dan Devries applied to the Court in part for an order to restructure the trial calendar in this action. (Ex Parte Application Shortening Time on Motions to Be Relieved as Counsel, MPA, p. 3:10-14.) The Court granted Defendants’ request on April 26, 2022 and continued the non-jury trial scheduled for May 31, 2022 to October 18, 2022. (Minute Order, April 26, 2022, p. 1.) Defendant Watanabe enjoyed 175 days from the April 26, 2022 Minute Order he requested to the October 18, 2022 trial date to secure effective trial counsel and resolve discovery concerns.

Trial is to take place in twenty calendar days or fourteen court days from the present hearing. Watanabe argues that his requested five-month continuance “will not undermine the goal of a prompt disposition of the case,” but his suggestion of a March 18, 2023 trial date would place trial in this action ten months. (Motion, MPA, p. 5:23-24.) Watanabe suggests that he alone would suffer prejudice if the instant motion were not granted, but he proposes that Matevosian wait 291 days past the initial trial date at the earliest to resolve claims, though his limited scope counsel Ryan A. Ellis notes that he cannot yet determine whether additional discovery would be needed here to prepare Watanabe an adequate defense. (Motion, MPA, p. 6:1-7; Ellis Decl., ¶ 5.)

In fact, counsel admits that he is “unable to determine . . . if Mr. Watanabe is in fact prepared to proceed to trial.”  (Motion, p. 3:11-13.)

“To ensure the prompt disposition of civil cases, the dates assigned for a trial are firm.  All parties and their counsel must regard the date set for trial as certain.”  (CRC Rule 3.1332(a).)

Watanabe does not establish good cause to further continue trial.

III.     CONCLUSION

Defendant Bruce Watanabe’s Motion to Continue Trial and All Related Dates is DENIED.