Judge: Olivia Rosales, Case: 22NWCV00621, Date: 2023-05-11 Tentative Ruling



Case Number: 22NWCV00621    Hearing Date: May 11, 2023    Dept: F

CC WEllness, llc v. virahealth medical wholesale, llc

CASE NO.:  22NWCV00621

HEARING 5/11/23 @ 8:30 AM

# 3

TENTATIVE RULING

Defendant Virahealth Medical Wholesale, LLC’s motion to continue trial is GRANTED.

Moving Party to give NOTICE.

 

Defendant Virahealth Medical Wholesale, LLC moves for an order to continue trial pursuant to CCP § 128 and CRC, rules 3.1202 and 3.1332.

Legal Standard

 “Continuances are granted only on an affirmative showing of good cause requiring a continuance.”¿ (In re Marriage of Falcone & Fyke (2008) 164 Cal.App.4th 814, 823.)¿ A trial court has broad discretion in considering a request for a trial continuance.¿ (Pham v. Nguyen (1997) 54 Cal.App.4th 11, 13-18.)¿ The factors to consider in ruling on a motion to continue trial are:

 

(6)  A party's excused inability to obtain essential testimony, documents, or other material evidence despite diligent efforts; . . . .

 

(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; . . .

 

(Cal. Rules of Court, rule 3.1332(c) and (d).)

Trial Continuance

There is good cause to continue trial because of Defendant Virahealth Medical Wholesale, LLC’s (Defendant) excused inability to obtain essential discovery despite diligent efforts. Defendants have diligently sought essential testimony from Plaintiff through a deposition of its Person Most Knowledgeable (PMK) but has been unable to obtain the testimony and any related evidence discovered through the deposition. Defendant seeks to depose the PMK for Plaintiff CC Wellness LLC (Plaintiff). Defendant first requested mutually available dates for the deposition of Plaintiff’s PMK on January 19, 2023. (Manavi Decl., ¶ 3.) Plaintiff did not provide any dates to the initial requests and Defendant set the deposition unilaterally for February 9, 2023. (Manavi Decl., ¶ 4.) The deposition was taken off calendar at Plaintiff’s request, reset unilaterally after Plaintiff failed to provide available dates, and taken off calendar again at Plaintiff’s objection to the date. (Manavi Decl., ¶¶ 5-9.) Plaintiff provided July 28, 2023; August 2, 2023; and August 4, 2023, as dates for its PMK’s deposition. (Manavi Decl., ¶ 9.) Trial in this matter is set for September 5, 2023. Thus, Defendant will be unable to obtain any further discovery based on evidence discovered at the deposition as discovery will be cut-off on within a week of the deposition. Additionally, trial has not previously been continued in this matter. Therefore, there is good cause to continue trial because of Defendant’s excused inability to obtain essential discovery despite its diligent efforts.

Plaintiff contends that Defendant will be able to depose Plaintiff’s PMK prior to the discovery cut-off and that the continuance is premature. However, Plaintiff has provided dates for the deposition of the PMK within a week of the discovery cut-off. Thus, Defendant will not be able to conduct any additional discovery after the deposition. Therefore, the continuance is not premature because Defendant will be precluded from obtaining any further discovery after the deposition.

Defendant seeks a nine-month continuance. Plaintiff argues that a continuance of nine months is unreasonable. Defendants do not state the reasons for requesting a nine month continuance. The Court finds that a nine-month continuance is unreasonable. Therefore, the court will continue trial six months from the September date.

Sanctions

Defendant requests sanctions in its reply.

California Rules of Court, rule 2.30 (c) requires that sanctions be requested only on noticed motion by party. Thus, the request for sanctions within Defendant’s reply is not considered by this Court.

Accordingly, Defendant Virahealth Medical Wholesale, LLC’s motion to continue trial is GRANTED.