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.