Judge: Robert S. Draper, Case: 20STCV12426, Date: 2023-03-20 Tentative Ruling

Case Number: 20STCV12426    Hearing Date: March 20, 2023    Dept: 78

Superior Court of California 

County of Los Angeles 

Department 78 

Defendants T.N.L. Construction, Inc., Meir Levi, and Tomer Nahum Levi’s (collectively, “Movants”) Motion to Continue Trial Date is GRANTED. 

FACTUAL BACKGROUND   

This is an action originally brought by Fung Bark Lau and Yang He (“Plaintiffs”) regarding a variety of construction defects in the renovation of their home (the “Subject Property”). Plaintiffs allege Defendants T.N.L. Construction Inc. (“T.N.L. Construction”), and TNL Renovation Inc. (“TNL Renovation”), to whom T.N.L. Construction assigned its rights and duties pursuant to a novation, negligently performed construction on their home, leading to structural damage and delays.

PROCEDURAL HISTORY 

On March 30, 2020, Plaintiffs filed the Complaint asserting five causes of action:

1.    Negligence;

2.    Breach of Written Contract;

3.    Unjust Enrichment;

4.    Violation of Business and Professions Code Section 7031; and

5.    Claim on Construction Bonds.

On May 29, 2020, T.N.L. Construction demurred to the Complaint. That Demurrer was overruled.

On November 17, 2020, T.N.L. Construction Inc. filed a Cross-Complaint asserting six causes of action:

1.    Comparative Indemnity and Apportionment of Fault;

2.    Total Equitable Indemnity;

3.    Negligence;

4.    Breach of Contract;

5.    Implied Contractual indemnity; and,

6.    Declaratory Relief.

On January 15, 2021, Cross-Defendant EHD Builders Inc. filed a Demurrer to T.N.L. Construction’s Cross-Complaint. That Demurrer was sustained with leave to amend.

On February 3, 2021, TNL Renovation filed a Cross-Complaint asserting four causes of action:

1.    Express Contractual Indemnity;

2.    Implied Indemnity;

3.    Contribution and Apportionment; and

4.    Declaratory Relief

On July 21, 2021, T.N.L. Construction filed a First Amended Cross-Complaint.

On August 3, 2021, TNL Renovation filed a First Amended Cross-Complaint.

On November 3, 2021, TNL Renovation filed a Second Amended Cross-Complaint.

On June 15, 2022, TNL Renovation filed a Third Amended Cross-Complaint.

On September 6, 2022, TNL Renovation filed a Fourth Amended Cross-Complaint.

On November 4, 2022, Movants filed a Notice of Stay of Proceedings due to bankruptcy.

On December 12, 2022, Plaintiffs filed a Notice of Entry of Order Granting Plaintiffs’ Motion for Relief from Automatic Stay.

On February 2, 2023, Movants filed the instant Motion to Continue Trial Date.

On March 7, 2023, Plaintiffs filed an Opposition.

On March 13, 2023, Movants filed a Reply.

DISCUSSION 

                          I.     MOTION TO CONTINUE TRIAL DATE  

Movants move to continue the trial date for a period of approximately seven months. Trial is currently set for May 16, 2023.

Trial dates are firm to ensure prompt disposition of civil cases. (Cal. Rules of Court, rule 3.1332(a).) Continuances are thus generally disfavored. (See id. rule 3.1332(b).) Nevertheless, the trial court has discretion to continue trial dates. (Hernandez v. Superior Court (2004) 115 Cal.App.4th 1242, 1246.) Each request for continuance must be considered on its own merits and is granted upon an affirmative showing of good cause. (Cal. Rules of Court, rule 3.1332(c); Hernandez, supra, 115 Cal.App.4th at 1246.) Circumstances that may indicate good cause include: (1) the unavailability of an essential lay or expert witness due to death, illness, or other excusable circumstances; (2) the unavailability of a party due to death, illness, or other excusable circumstances; (3) the unavailability of trial counsel due to death, illness, or other excusable circumstances; (4) the substitution of trial counsel 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. Rules of Court, rule 3.1332(c).) 

The court must also consider such relevant factors as: (1) the proximity of the trial date; (2) whether there was any previous continuance, extension of time, or delay of trial caused by 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. (Id. rule 1.1332(d).) 

Here, Movants seek to continue the trial due to their inability to reserve a date to hear their Motion for Summary Judgment prior to the current trial date. Movants note that they reserved a hearing date for their Motion for Summary Judgment on February 10, 2023, but at that time, the earliest date available was seven months after the current trial date.

Movants cite Polibrid Coatings, Inc. v. Superior Court (2003) 112 Cal.App.4^th 920, 923), in which the court held that trial courts must allow parties their statutory right to bring summary judgment motions.

In Opposition, Plaintiffs note that in Polibrid, the moving party had only been added to the litigation 14 months prior, whereas here, Movants were named in the initial Complaint over three years ago.

Additionally, Plaintiffs contend that Movants have not been diligent in litigating the matter, as they have not scheduled Plaintiffs’ depositions. Plaintiffs contend that, had the issue really been the inability to reserve a date, Movants should have filed their Motion for Summary Judgment then filed an ex parte application to have the hearing date advanced. 

Next, Plaintiffs note that Movants did not attempt to reserve a hearing date until after their time to timely file a motion for summary judgment had lapsed.

Finally, Plaintiffs contend that they will suffer prejudice should trial be continued, as the damage caused by the construction defects persists and is very costly.

The Court finds that good cause exists to grant this short continuance. The backlog of cases caused by the COVID-19 pandemic has significantly delayed litigation, despite attorneys’ best efforts to expedite the process. Moreover, this action was subject to a brief stay for Movants’ bankruptcy proceedings. Finally, this is the only continuance that has been requested, and this action is relatively young.

However, the Court emphasizes that absent an extenuating emergency, this will be the only continuance granted. The parties are to proceed with urgency to complete all discovery and to prepare for trial, as the date provided at hearing will be firm.

Movants’ Motion to Continue Trial Date is GRANTED. Trial will be continued to a date to be determined at hearing.

DATED: March 20, 2023 

____________________________

Hon. Robert S. Draper 

Judge of the Superior Court