Judge: Nathan Vu, Case: 19-0111381, Date: 2022-08-29 Tentative Ruling

AMENDED SUNDAY 08/28/2022 AT 5:00 PM

Motion for Summary Adjudication

The Motion for Summary Adjudication of Defendant Mactin Le shall be continued to 02/06/2023 at 8:30 a.m. in Department N15.

Plaintiff shall file and serve an amended opposition to the Motion for Summary Adjudication, if any, by 01/09/2023.

Defendant shall file and serve an amended reply on the Motion for Summary Adjudication, if any, by 01/23/2023.

The mandatory settlement conference set for 10/20/2022 shall be continued to 03/23/2023 at 9:00 a.m. in Department N15.

The trial set for 11/12/2022 shall be vacated and shall be reset on 04/24/2023  at 10:30 a.m. in Department N15.

Defendant Mactin Le moves for summary adjudication of the first, second, third, fifth, sixth, seventh, eighth, ninth, tenth, and eleventh causes of action as well as the prayer for punitive damages contained in the Third Amended Complaint (TAC) of Plaintiff Bend-Tek, Inc.

Defendant’s motion for summary adjudication raises significant issues regarding the first, second, third, fifth, sixth, seventh, eighth, ninth, tenth, and eleventh causes of action as well as the prayer for punitive damages asserted against Defendant Le in the TAC.

Plaintiff requests a continuance pursuant Civil Procedure Code section 437c(h) because facts essential to justify opposition to the motion may exist but cannot be presented due to delays in obtaining discovery.

Given the high stakes involved in summary judgment and summary adjudication motions, a continuance under Civil Procedure Code section 437c(h) is “virtually mandated upon a good faith showing by affidavit that a continuance is needed to obtain facts essential to justify opposition to the motion.” (Bahl v. Bank of America (2001) 89 Cal.App.4th 389, 398 (internal quotation marks omitted); see also Johnson v. Alameda County Medical Center (2012) 205 Cal.App.4th 521, 532 (“ When a party makes a good faith showing by affidavit demonstrating that a continuance is necessary to obtain essential facts to oppose a motion for summary judgment, the trial court must grant the continuance request.”).)

Plaintiff’s counsel’s declaration confirms that a discovery referee was recently appointed and a motion to compel further responses from Defendant Le is currently pending before the discovery referee.  Plaintiff’s counsel also states that Plaintiff believes that the responses it seeks to compel from Defendant Le likely includes facts essential to oppose this motion, such as additional trade secrets he sent to himself and to whom he may have forwarded them.  Plaintiff’s counsel also believes that facts essential to opposing the motion may be contained in the documents that Kinkisharyo International should be producing.  Kinkisharyo was ordered to produce documents, but it has not yet done so.  Plaintiff also believes facts essential to its oppose may exist with Cao Bui and Kevin Quang.

Plaintiff has made a showing under Section 437c(h) that a continuance should be granted because facts essential to justify the opposition to this motion may exist but cannot be presented and the Court will grant said continuance.

In light of the continuance of the motion and the ongoing discovery in this matter, the mandatory settlement conference and trial will need to be continued as well.

However, all parties need to complete discovery in an expeditious manner, with the assistance of the discovery referee if needed.

Further continuances will only granted upon a strong showing of good cause or upon the recommendation of the discovery referee.  (See Rules of Ct. R. 3.1332, subd. (a) [“All parties and their counsel must regard the date set for trial as certain.”] & subd. (c).)

Defendant Le shall give notice of this ruling.