Judge: Serena R. Murillo, Case: 21STCV03378, Date: 2023-01-19 Tentative Ruling

Case Number: 21STCV03378    Hearing Date: January 19, 2023    Dept: 29

Background

This action arises out of an automobile versus motorcycle collision. Plaintiff Jason Duplantis alleges that on February 18, 2019, Defendant Jerry Byrne, while operating his Ford F250, collided into a parked vehicle, which caused him to collide into Plaintiff Jason Duplantis. On January 28, 2021, Plaintiffs Jason Duplantis and Annie Duplantis filed a complaint against Defendants Jerry Byrne and Yolanda Byrne, for negligence and loss of consortium.

On December 22, 2022, Defendants filed this motion to continue trial.  On January 5, 2023, Plaintiffs filed an opposition. On January 11, 2023, Defendants filed a reply.

Trial is set for March 10, 2023.

Summary

            Moving Arguments

Defendant moves to continue trial, arguing good cause exists because Defendant has been trying to take the deposition of Plaintiffs. Once it became clear that plaintiffs would not proceed with their depositions voluntarily, counsel for defendants obtained the first available dates for motions to compel plaintiffs’ attendance at depositions. The first available dates for motions to compel plaintiffs’ depositions in this case are May 1, 2023 and June 26, 2023.

            Opposing Arguments

Plaintiff argues that Defendant’s Motion is not timely under C.C.P. Section 1005. Further, Plaintiffs’ depositions are set to be completed on January 23 and 24, respectively. (Park Decl., Exs. 1 and 2.) Defendants will have completed all discovery referenced in their motion sufficiently ahead of the current March 10, 2023 trial date.

            Reply Arguments

Defendant argues that a request for a trial continuance may be made by “a noticed motion or an ex parte application;” and under the latter procedure, notice must be given the court day before the hearing. (California Rules of Court Rule 3.1332(b) and Rule 3.1203(a)). Thus, the extended notice period is not a perquisite to the Court granting the request for a continuance, particularly where its denial will ultimately result in another motion to continue trial being filed, unnecessarily consuming additional resources. Plaintiff makes no argument in opposition that the motion was not actually received within the required notice period, or that any prejudice resulted from the method or timing of service. Plaintiffs make no substantive arguments against the continuance of trial at all. Plaintiffs have and continue to resist legitimate discovery attempts in the lawsuit they have filed. If history is our guide, objections to Plaintiffs’ depositions based on unavailability will continue to be made until a motion to compel is granted. Unfortunately, the refusal to appear for noticed depositions accompanied by last-minute notice that Plaintiff would not attend has now spilled over into other areas of discovery, including a physical examination under Code of Civil Procedure section 2032.220. The stonewall approach taken by Plaintiffs to discovery has delayed the ability to proceed with trial.

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

Code of Civil Procedure Section 1005(b) provides that “[u]nless otherwise ordered or specifically provided law, all moving and supporting papers shall be served and filed at least 16 court days before the hearing.”  “[I]f the notice is served by facsimile transmission, express mail, or another method of delivery providing for overnight delivery, the required 16-day period of notice shall be increased by two calendar days.”  (Code Civ. Proc. § 1005(b).)

On December 22, 2022, Defendant served by email and filed the instant Motion.  In order to comply with the statutory requirements for notice, the earliest date the Court could hear this Motion would be January 20, 2023.  As such, Defendant did not comply with the requisite notice period. 

Thus, Defendant’s Motion is CONTINUED.   

Conclusion

Accordingly, the motion to continue trial and all related deadlines is CONTINUED.