Judge: Peter A. Hernandez, Case: 19STCV36240, Date: 2023-08-23 Tentative Ruling

Case Number: 19STCV36240    Hearing Date: August 23, 2023    Dept: K

Defendant Angle Ironworks, Inc.’s Motion to Continue Trial is DENIED without prejudice.

Background   

Plaintiff Jorge Chavez Soto (“Plaintiff”) alleges as follows:

On August 7, 2018, Plaintiff was employed as a construction worker performing work on a roof of a building under construction. While working on the roof, Plaintiff fell approximately 20-30 feet below when he stepped through an unsecured hole and sustained injuries.

On October 29, 2019, Plaintiff filed a First Amended Complaint, asserting causes of action against Defendants C&L Refrigeration Corporation (“C&L”), Angle Ironworks, Inc. (“Angle”) and Does 1-50 for:

1.                  Negligence

2.                  Premises Liability

On January 3, 2020, Plaintiff filed an “Amendment to Complaint,” wherein GB Metal Fabricators, Inc. (“GB Metals”) was named in lieu of Doe 1.

On March 11, 2020, GB Metals filed a cross-complaint, asserting causes of action against C&L, Angle and Moes 1-50 for:

1.                  Equitable Indemnification and Contribution

2.                  Declaratory Relief

3.                  Apportionment of Fault

On March 12, 2020, Angle filed a cross-complaint, asserting causes of action against GB Metal and Roes 1-10 for:

1.                  Express Written Indemnity

2.                  Full or Partial Equitable Indemnification

3.                  Declaratory Relief

4.                  Indemnity

On April 2, 2020, C&L filed a cross-complaint, asserting causes of action against Roes 1-50 for:

1.                  Express Indemnity

2.                  Implied Indemnity

3.                  Comparative Indemnity

4.                  Declaratory Relief

On October 13, 2020, Plaintiff filed an “Amendment to Complaint,” wherein KPRS Construction Services, Inc. (“KPRS”) was named in lieu of Doe 2.

On March 3, 2021, this case was transferred from Department 27 of the Personal Injury Court to this instant department.

On March 4, 2021, Plaintiff dismissed C&L, without prejudice.

On March 12, 2021, Plaintiff filed an “Amendment to Complaint,” wherein C&L was named in lieu of Doe 3.

On November 22, 2022, an “Order Granting Defendant KPRS Construction Services Inc.’s Motion for Summary Judgment” was filed. On November 23, 2022, KPRS filed (and electronically served) a “Notice of Entry of Order Granting Defendant KPRS Construction Services, Inc.’s Motion for Summary Judgment.” On May 1, 2023, “Judgment for Defendant KPRS Construction Services, Inc.” was filed.

The Final Status Conference is set for September 12, 2023. Trial is set for September 26, 2023.

Legal Standard

“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. Circumstances that may indicate good cause include:

. . . (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.” (California Rules of Court [“CRC”] Rule 3.1332, subd. (c).)

“In ruling on a motion or application for continuance, the court must consider all the facts and circumstances that are relevant to the determination. These may 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.” (CRC Rule 3.1332, subd. (d).)

Discussion

Angle moves the court for an order, pursuant to California Rules of Court Rule 3.1332, subdivision (c)(3), continuing the trial date in this matter to January 2024 or as soon thereafter as may be convenient to the court and the parties.

At the outset, the court notes that Angle’s motion was primarily made on the basis that its then-current counsel, Marjorie E. Motooka, was unavailable for trial on September 26, 2023. Angle has obtained new counsel (i.e., Tyson & Mendes, LLP) since the filing of the motion, as per the Substitution of Attorney filed August 4, 2023. It would appear, then, that the motion is moot as to subdivision (c)(3) grounds.

The court also notes, however, that Angle’s memorandum of points and authorities also cites to subdivision (c)(4). The court presumes that Angle’s motion is proceeding on this basis, inasmuch as it has not been withdrawn by successor counsel (i.e., as of August 18, 2023, 10:50 a.m.). Angle has not made any affirmative showing that the substitution is required in the interests of justice; as such, the court denies the motion without prejudice.

To the extent there is no opposition to such a motion, the court will inquire why there wasn’t a stipulation filed or, at a minimum, why a notice of non-opposition was not filed. The court will inquire at the hearing.