Judge: Michelle Williams Court, Case: 20STCV31785, Date: 2022-08-17 Tentative Ruling

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Case Number: 20STCV31785    Hearing Date: August 17, 2022    Dept: 74

20STCV31785           ALI MOHAMED vs CALIFORNIA DEPARTMENT OF VETERANS AFFAIRS

Plaintiff’s Unopposed Motion to Continue Trial

TENTATIVE RULING:  The motion is GRANTED.  Trial shall be continued a minimum of 30 days and the Court shall discuss a suitable date with the parties at the hearing.

Background

On August 20, 2020, Plaintiff Ali Mohamed filed this action against the California Department of Veterans Affairs. Plaintiff, a Muslim man born in Somalia, alleges he began his employment with Defendant in November 2018, and was terminated on May 8, 2020 after Defendant engaged in a series of discriminatory and retaliatory actions. The complaint asserts causes of action for: (1) national origin discrimination; (2) racial discrimination; (3) disability discrimination; (4) failure to prevent discrimination; and (5) retaliation.

Motion

On July 22, 2022, Plaintiff filed his motion to continue trial for 30 days due to the unavailability of counsel.

The motion is unopposed. (Code Civ. Proc. § 1005(c).)

Discussion

Standard

“The decision to grant or deny a continuance is committed to the sound discretion of the trial court.”¿(Forthmann¿v. Boyer¿(2002) 97 Cal. App. 4th 977, 984.)¿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. R. Ct., rule 3.1332(c).) “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.

(Cal. R. Ct., rule 3.1332(c).) Other factors to consider under 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.

On Balance, Plaintiff Demonstrated Good Cause for the Brief Continuance Sought

On December 18, 2020, the Court set the initial trial date as January 31, 2022. On January 18, 2022, the Court entered the parties’ Joint Stipulation to Continue Trial and Order Thereon, continuing trial to its present date: September 19, 2022.

Plaintiff requests the Court continue trial for at least 30 days based upon attorney Dilip Vithlani’s engagement “in trial in Disloquez v Hollywood Park Casino (Judicate West, Case No. A 268822 (Hon. Victor Kenton (Ret.) presiding), from September 19 through September 22, 2022.” (Vithlani Decl. ¶ 2.) Pursuant to California Rules of Court, rule 3.1332(c)(3), “[c]ircumstances that may indicate good cause include: . . . [t]he unavailability of trial counsel because of death, illness, or other excusable circumstances.”

On balance, the Court finds good cause for the continuance. The trial date is near the instant hearing, there has been one prior continuance, and the requested continuance is brief. (Cal. R. Ct., rule 3.1332(d)(1)-(3).) Plaintiff is represented by two law firms, and therefore there is, practically speaking, an “alternative means to address the problem that gave rise to the motion or application for a continuance” as only one of the attorneys is unavailable. (Cal. R. Ct., rule 3.1332(d)(4).)

There does not appear to be any prejudice to the parties or any witnesses that would result from the continuance. (Cal. R. Ct., rule 3.1332(d)(5).) This is not a preference case and the Court has other trials on its calendar for both September 19, 2021 and every Monday more than 30 days thereafter for the remainder of the year. (Cal. R. Ct., rule 3.1332(d)(6)-(7).)

Trial counsel indicates he is engaged in another proceeding through an alternative dispute agency. (Cal. R. Ct., rule 3.1332(d)(8).) The Court notes in the January 18, 2022 stipulation to continue trial, Plaintiff solely identified his counsel’s unavailability as “the week of March 21, 2022, and from June-July of 2022 due to trials, arbitrations and pre-planned family vacations.” Accordingly, it appears attorney Vithlani did not account for the existing trial date when setting the conflicting hearing. (Cal. R. Ct., rule 3.1332(a) (“All parties and their counsel must regard the date set for trial as certain.”).)

The parties have not stipulated to a continuance, but Defendant expressed that it would not oppose the request and has not filed an opposition. (Cal. R. Ct., rule 3.1332(d)(9); Vithlani Decl. Ex. A.) Vithlani is the lead attorney of record, which favors a finding that the interests of justice are best served by the continuance. (Cal. R. Ct., rule 3.1332(d)(10); Vithlani Decl. ¶ 1.)  

The Court finds good cause for the continuance.