Motion to Continue Trial filed by Defendants Danielle Trifoglio and Richard Trifoglio

TENTATIVE

The motion to continue trial and related deadlines is granted. Trial is continued to March 22, 2023.

Legal Standard

California Rules of Court, rule 3.1332, subdivision (c) states that 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).) 

Code of Civil Procedure section 2024.050 allows a court to grant leave to complete discovery proceedings.  In doing so, a court shall consider matters relevant to the leave requested, including, but not limited to: (1) the necessity of the discovery, (2) the diligence in seeking the discovery or discovery motion, (3) the likelihood of interference with the trial calendar or prejudice to a party, and (4) the length of time that has elapsed between previous trial dates.  (Code Civ. Proc. § 2024.050.) 

Discussion

Defendants move to continue trial, arguing good cause exists as the first date available date for their motion to compel Plaintiff’s deposition is for December 15, 2022, a day after the current trial date. Defendants argue that they have attempted to take the deposition of Plaintiff three times. Each time, Plaintiff and Plaintiff’s counsel failed to appear for the deposition. No response to the deposition notice, or the request for production included in the deposition notice have ever been provided. Plaintiff’s counsel has delayed the proceedings by offering new deposition dates after each deposition, but then not showing up for the same. Thus, Defendants have been forced to compel the deposition for a date certain and seek this continuance in order to allow Defendants’ motion to be heard and for further discovery following the deposition to take place as needed.

The Court finds that there is good cause for continuing the trial date as Defendant’s motion to compel Plaintiff’s deposition is set after the trial date and discovery is not yet complete.  Further, it does not appear that Plaintiff would not be prejudiced by the continuance as Plaintiff has not filed an opposition contending otherwise. Thus, the motion is granted. Trial is continued to March 22, 2023.

Conclusion

Accordingly, the motion to continue trial and related deadlines is GRANTED. Trial is continued to March 22, 2023. Discovery cut-off and motion cut-off dates shall be based on the new trial date.

Moving party is ordered to give notice.