Judge: Michael P. Linfield, Case: 21STCV01929, Date: 2022-09-19 Tentative Ruling

Case Number: 21STCV01929    Hearing Date: September 19, 2022    Dept: 34

SUBJECT:                 Motion for Continuance of Trial

Moving Party:          Plaintiffs Evelyn Mohammed and Successor-In-Interest to Plaintiff, Jose Arturo Corella (“Plaintiffs”)

Resp. Party:             None

Plaintiffs Evelyn Mohammed and Successor-In-Interest to Plaintiff, Jose Arturo Corella's Motion for Continuance of Trial is DENIED.

I.           BACKGROUND

On January 15, 2021, Plaintiff Evelyn Mohammed filed a verified complaint against Defendants Leslie Walker Van Antwerp, III alleging the following causes of action:

1.           Breach of Fiduciary Duty;

2.           Breach of Trust;

3.           Negligence;

4.           Breach of Contract;

5.           Breach of the Implied Covenant of Good Faith and Fair Dealing;

6.           Accounting; and

7.           Quiet Title

On February 3, 2022, Plaintiff Jose Arturo Corella filed a verified First Amended Complaint as successor-in-interest to the deceased Plaintiff Evelyn Mohammed against Defendants Leslie Walker Van Antwerp, III alleging the same seven causes of action.

On April 12, 2022, the Court overruled Defendant's demurrer to Plaintiff's First Amended Complaint.

On April 8, 2022, Plaintiffs moved for continuance of the trial date. The motion was unopposed. On May 4, 2022, the Court ruled:

“Plaintiffs Evelyn Mohammed and Successor-In-Interest to Plaintiff, Jose Arturo Corella Motion for Continuance of Trial is GRANTED. The FSC is continued until September 20, 2022; the trial is continued to October 3, 2022. There shall be no further continuances.” (Minute Order, May 4, 2022, p. 1.)

On September 15, 2022, Plaintiffs again moved the Court for continuance of the trial date. (Motion, p. 1.) The motion is again unopposed.

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

Plaintiffs argue that Defendant did not answer their Verified First Amended Complaint or responded to outstanding discovery requests. (Motion, p. 2:3-5, 2:11-12; Ting Decl., ¶¶ 3-10, Ex. A.) Plaintiffs requested entry of default on September 12, 2022, and their request was rejected by the Clerk of Court. (Notice of Rejection of Default, filed September 12, 2022, p. 1.)

The Court ruled previously that no further trial continuances would be allowed in this case. (Minute Order, May 4, 2022, p. 1.) Plaintiffs have not presented sufficient evidence to convince the Court to revise its prior ruling.

Under California’s Code of Civil Procedure, a defendant’s failure to answer a complaint allows the plaintiff to apply for entry of default. (CCP § 585; Entry of Default, Cal. Prac. Guide Civ. Pro. Before Trial Ch. 5-B.)  The FAC was filed more than seven months ago, on February 3, 2022.  Plaintiffs could have requested Entry of Default months ago.  There is no indication why Plaintiffs waited until just last week to request Entry of Default.

Plaintiffs further state that they have not received needed discovery from Defendant.  Plaintiffs waited until three weeks ago to take Defendant’s deposition.  (Ting Declaration, ¶ 4.)  Plaintiffs also state that they waited until September 2, 2022 to send a letter “to Defendant Van Antwerp detailing the deficiencies in his discovery responses.” (Ting Declaration, ¶ 5.)  This case was filed on January 15, 2021.  There is no explanation why Plaintiffs waited 1½ years before seriously engaging in discovery, nor is there any explanation why Plaintiffs have never moved this Court for an order to compel discovery. 

Lastly, the Court reminds Plaintiffs that they have previously been advised that “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); Dept. 34 Trial Orders, ¶ XII.)

The Court exercises its discretion not to continue the trial in this case.

III.     CONCLUSION

Plaintiffs Evelyn Mohammed and Successor-In-Interest to Plaintiff, Jose Arturo Corella's Motion for Continuance of Trial is DENIED.