Judge Ronald F. Frank, Case Number: 21STCV18236, Date: 2023-10-24 Tentative Ruling

Judge: Ronald F. Frank, Case: 21STCV18236, Date: 2023-10-24 Tentative Ruling

Case Number: 21STCV18236 Hearing Date: February 7, 2024 Dept: 8

Tentative Ruling

HEARING DATE: February 7, 2024

CASE NUMBER: 21STCV18236

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CASE NAME: Homa Deris v. Byron Kim, DDS, et al.

MOVING PARTY: Defendants, Byron S. Kim, DD, Walter Jefferson DDS, Jefferson and Kim Dental Corporation dba PCH Smiles Dentistry and Orthodontics

RESPONDING PARTY: Plaintiff, Homa Deris

TRIAL DATE: March 22, 2024

MOTION:¿ (1) Motion to Continue Trial

Tentative Rulings: (1) DENIED based on lack of admissible evidence to carry the moving party’s burden of proof. While this Court usually grants motions to continue trial upon a party’s or trial counsel’s percipient declaration of unavailability, this motion falls short on either of those grounds. Neither trial counsel Mr. Stockalper nor defendant Dr. Jefferson provided declarations attesting to the fact or details of their claimed unavailability, even after Plaintiff’s Opposition objected to the hearsay declaration of a different lawyer, Ms. Hogoboom. There is no evidence of WHEN the claimed pre-planned trips were scheduled, no admissible evidence that the trips are pre-paid, no indication as why trial could not still commence on the March 22 date set nearly a year ago with trial counsel Stockalper arriving at the trial after returning from his trip on the 22^nd in time to appear on March 23 for voir dire and opening statements, no indication when Dr. Jefferson made his conflicting out-of-country arrangements, and a variety of other concerns given that this is the 2nd request by the defense to continue the trial. The factual arguments in the Reply brief as to mediation or MSC scheduling are also not supported by a declaration or other admissible evidence.

oI. BACKGROUND¿

A. Factual¿

On May 14, 2021, Plaintiff, Homa Deris (“Plaintiff”) filed a Complaint against Defendants, Byron Kim, DDS, Rojin Erfan, DDS, Walter Jefferson, DDS, Walter Jefferson Dental Corporation dba PCH Smiles Dentistry and Orthodontics, Kevin Choi, DDS, Bardi-Nugent Dental Corporation dba Rootvision Endo, and DOES 1 through 10. On October 26, 2021, Plaintiff filed a First Amended Complaint (“FAC”) alleging causes of action for: (1) Dental Malpractice; (2) Fraudulent Concealment; (3) Intentional Misrepresentation; (4) Breach of Fiduciary Duty; and (5) Elder Abuse.

Trial is currently set for March 22, 2024, However, Defendants, Byron S. Kim, DD, Walter Jefferson DDS, Jefferson and Kim Dental Corporation dba PCH Smiles Dentistry and Orthodontics now move to Continue Trial.

B. Procedural

On January 9, 2024, Moving Defendants filed a Motion to Continue Trial and all Related Dates. On January 24, 2024, Plaintiff filed an opposition. On January 31, 2024, Moving Defendant filed a reply brief.

II. ANALYSIS ¿

A. Legal Standard

Although continuances of trials are disfavored, each request for a continuance must be considered on its own merits. (Cal. Rules of Court, rule 3.1332, subd. (c).) The Court may grant a continuance only on an affirmative showing of good cause requiring the continuance. (Id.) The Court may look to the following factors in determining whether a trial continuance is warranted: (1) proximity of the trial date; (2) whether there was any previous continuance 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; (5) the prejudice that parties or witnesses will suffer as a result of the continuance; and (6) whether trial counsel is engaged in another trial. (See generally, Cal. Rules of Court, rule 3.1332, subd. (d)(1)-(11).) Additionally, factors for the Court to consider include: a party’s excused inability to obtain essential testimony, documents, or other material evidence despite diligent efforts; the proximity of the trial date; whether all parties have stipulated to a continuance; and any other fact or circumstance relevant to the fair determination of the motion or application. (Cal. Rules of Court, rule 3.1332(c), (d).)

B. Discussion

Moving Defendants argue that good cause exists to continue trial because: (1) Moving Defendant, Walter Jefferson, DDS will be out of the country from March 25, 2024 through April 7, 2024; (2) Patrick Stockalper, Esq, trial counsel for moving Defendants, will be unavailable March 17, 2024 through March 22, 2024; (3) The parties are discussing mediation but have not yet agreed on a mediator, and a continuance would allow the parties to participate in mediation in hopes of early resolution of the matter before trial; and (4) no party will be prejudiced by the continuance of the trial date.

Moving Defendants argue that the trial continuance is appropriate under the circumstances in light of the unavailability of Dr. Jefferson and trial counsel, Patrick Stockalper, who apparently have pre-planned and pre-paid travel plans. The moving papers asserts that when this matter was assigned to his firm, it was assigned to him for all purposes, including trial, and no other attorney in his firm is capable and available to try the case and/or could be prepared to do so. Moving Defendants also assert that a continuance would allow the parties to proceed with mediation prior to trial in hopes of early resolution. Based on this, Moving Defendants seek a continuance of the trial date to June 7, 2024.

In opposition, Plaintiff correctly points out that this is the second time Moving Defendants have filed a motion to continue trial and that their trial counsel already agreed to the current trial date of March 22, 2024, on the record, almost one year ago. Plaintiff argues that Moving Defendants have failed to show good cause to continue the trial date because both parties that allegedly have pre-planned, pre-paid vacations knew for almost a year about the new trial date and should not have made vacation plans that conflict with this trial date. Additionally, with regard to the mediation Moving Defendants discuss, Plaintiff argues this is a pretext because this Court ordered the case for mandatory settlement conference through Resolve Law LA Program on January 11, 2024, but despite that and despite Plaintiff’s counsels’ multiple emails to defense counsel asking for all counsels’ availabilities for February 14 and 15 for an MSC, defense counsel have failed to respond.

Next, Plaintiff argues that discovery is essentially complete, aside from supplemental and pre-trial discovery requests propounded by all parties. Plaintiff’s attorney also indicates that she has trials set for January 2024, March 2024 (2 trials), April 2024, May 2024 (2 trials), June 10, 2024, September 8, 2024, and October 16, 2024, and has vacation plans in July and August 2024. Plaintiff also notes this Court’s trial calendar, noting that this Court is scheduling trials into summer of 2025. Lastly, Plaintiff argues that Moving Defendants have not carried their burden in demonstrating how their booking of vacation time AFTER agreeing to a trial date is an excusable circumstance to continue trial dates.

For the foregoing reasons, Moving Defendant’s Motion to Continue trial is DENIED. The Court will consider argument as to whether the denial should be without prejudice to a renewed motion based on admissible evidence.

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Plaintiff is ordered to give notice.