Motion to Continue Trial filed by Defendant Home Depot USA, Inc.

TENTATIVE

The motion to continue trial and related deadlines is granted. Trial is continued to July 24, 2023.

Legal Standard

Although disfavored, the trial date may be continued for “good cause,” which includes (without limitation): (1) unavailability of trial counsel or witnesses due to “death, illness, or other excusable circumstances”; (2) the addition of a new party depriving the new party (or other parties) from conducting discovery and preparing for trial; (3) “excused inability to obtain essential testimony, documents, or other material evidence despite diligent efforts”; or (4) “[a] significant, unanticipated change in the status of the case” preventing it from being ready for trial.  (Id., Rule 3.1332(c).)   

Other relevant considerations 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.”  (Id., Rule 3.1332(d).) 

Discussion

Defendant moves to continue trial, arguing good cause exists as there has been a significant, unanticipated change in this case. On April 28, 2022, Plaintiff’s counsel indicated a significant change in Plaintiff’s injury status. Specifically, Plaintiff’s counsel indicated that in the week preceding the correspondence, Plaintiff underwent a rhizotomy aka radiofrequency ablation. Plaintiff’s counsel also indicated that Plaintiff will either require this procedure once a year for the remainder of his life or will require a spinal cord stimulator. As a result of this change in Plaintiff’s injuries, Defendant argues a second IME with orthopedic surgeon Dr. Michael Weinstein and a second deposition with Plaintiff is necessary. The parties have been unable to reach an agreement as to these issues. When Defendants attempted to reserve a hearing date for their Motion to Compel the Second IME and deposition of Plaintiff, the first available date was March 14, 2023, more than three months after the currently scheduled trial date of November 28, 2022.

The Court finds there is good cause to continue trial due to the outstanding discovery issues and because its motion to compel is set after the current trial date. While Plaintiff argues he will be prejudiced by a delay, he does not explain how. Thus, the motion is granted. Trial is continued to July 24, 2023.

Conclusion

Accordingly, the unopposed motion to continue trial and related deadlines is GRANTED. Trial is continued to July 24, 2023