Judge Serena R. Murillo, Case 21STCV13751 2023-04-28 Tentative Ruling

Judge: Serena R. Murillo, Case: 21STCV13751, Date: 2023-04-28 Tentative Ruling

Case Number: 21STCV13751 Hearing Date: April 28, 2023 Dept: 29

TENTATIVE

Defendant’s motion to continue trial is GRANTED. Trial is continued to March 26, 2024 at 8:30 a.m.; FSC March 13, 2024 at 10:00 a.m.. Discovery and motion cutoff dates shall be based on the new trial date.

Legal Standard

Trial continuances are disfavored and may be granted only on an affirmative showing of good cause. (CRC 3.1332(c); Thurman v. Bayshore Transit Mgmt., Inc. (2012) 203 Cal.App.4th 1112, 1127.) Dates assigned for trial are firm, and parties and their attorneys must regard these dates as certain to ensure prompt disposition of civil cases. (CRC 3.1332(a).)

However, CRC, Rule 3.1332(c) states, in relevant part: “Although continuances of trials are disfavored, each request for a continuance must be considered on its own merits. The court may grant a continuance only on an affirmative showing of good cause requiring the continuance. CRC, Rule 3.1332(c) lists several circumstances that may indicate good cause, including the unavailability of witnesses, the unavailability of parties, the unavailability or substitution of trial counsel, the addition of new parties, a party’s excused inability to obtain material evidence, or a significant, unanticipated change in the case’s status. (CRC, Rule 3.1332(c)(1)-(7).)

Further, CRC, Rule 3.1332(d) states: “In ruling on a motion or application for continuance, the court must consider all the facts and circumstances that are relevant to the determination. These 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 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; and (11) Any other fact or circumstance relevant to the fair determination of the motion or application.”

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.

Evidentiary Objections:

Plaintiff’s Objection to Defendant’s Evidence is SUSTAINED.

Discussion

Defendants move to continue trial to January 22, 2024, arguing that there is good cause because the first available hearing date in the Court’s reservation system for its motion for summary judgment is December 18, 2023, well after the current June 21, 2023 trial date. Further, mediation was initially scheduled to take place on November 21, 2022, but Plaintiff’s counsel requested a continuance to March or April of 2023. The mediation was not successful. Plaintiff’s late notice to continue mediation was the cause of at least a four- month delay where the Parties’ focused their efforts on mediation and resolution. Following mediation on March 20, 2023, it became apparent to Defendants that additional investigation and examination needed to be conducted, including but not limited to the filing of an MSJ, additional defense medical examinations (including a potential mental examination), and approximately 10-15 depositions of liability and damages witness and Plaintiff’s treating physicians. On April 7, 2023, Defendants served IME notices for an orthopedic evaluation and neuropsych evaluation. However, Plaintiff’s counsel has advised that he will not agree to additional medical examinations of Plaintiff despite Plaintiff’s numerous and varied injury claims affecting different body parts. As such, Defendants have reserved a February 23, 2024 hearing dates for their Motion to Compel the IMEs, which was the first available hearing dates. On April 11, 2023, Defendants substituted in the law firm of Yukevich Cavanaugh as trial counsel in this matter. The substitutions of attorneys were filed and served with the Court on April 11, 2023. In addition to the above, Yukevich requires time to review the file, conduct the above-referenced investigation and examinations of Plaintiff and prepare this matter for trial. Moreover, lead trial counsel will be engaged in trial and has a calendar conflict with the currently scheduled June 21, 2023 trial date in this matter.

Plaintiff argues in opposition that every single basis for a continuance is because defendants did not adequately prepare for trial and now seek to continue the trial into 2024. Defendants knew about the severity of plaintiff’s injuries; their orthopedic surgeon confirmed plaintiff’s injuries; they received expert reports about the injuries and future economic damages; they agreed to mediate, presumably because they were informed about what plaintiff was prepared to prove at trial. It is not a credible claim that they were surprised at mediation and need to take dozens of depositions and file motions. Plaintiff also argues that is not the rule that defendants automatically get a trial continuance when they select a lawyer who knows, in advance, that she is not available to try the case. Plaintiff argues that a motion for summary judgment has not been filed yet, so it cannot be the basis of a continuance. Further, Plaintiff argues Defendant has not adequately disclosed its basis for a motion for summary judgment and even if Proposition 22 provides a defense that the driver was an independent contractor, Plaintiff can still proceed under the theory of agency. Lastly, Plaintiff argues that the motions to compel IMEs lack merit because Code of Civil Procedure section 2032.220(a) permits “one physical examination of the plaintiff.” Also, Plaintiff argues that Defendants are not entitled to a mental examination because Plaintiff will not designate a mental health expert regarding Plaintiff’s claim for emotional distress.

Defendants argue that they have presented numerous legally-recognized bases for the Court to continue trial in this matter. The reason Defendants are in this position requiring a trial continuance is the result of Plaintiff’s request to postpone mediation in this case from November 21, 2022 to March 20, 2023. As Plaintiff has stated in his Opposition, this is a serious case. Defendants should be afforded an opportunity to have this case tried on the merits. Defendants argue that Plaintiff’s injuries have changed since they first conducted discovery. A statement was made that Plaintiff’s mind “isn’t quite there” and that his emotional state is affecting his functional abilities, which was disclosed for the first time in plaintiff’s report produced shortly before mediation. Because Plaintiff broadened the scope of his physical injury claims and put at issue his mental condition, Defendants are entitled to conduct discovery as to these claims. Defendants also argue that the Court of Appeals ruling on March 13, 2023 validating Proposition 22 is a significant and unanticipated change in the status of this case. Proposition 22 (codified in California Business and Professions Code section 7451) explicitly defines app-based drivers as independent contractors “and not an employee or agent” if certain conditions are met. Lastly, Defendants’ new lead trial counsel presently has a trial scheduled to begin on June 20, 2023. The unavailability of trial counsel because of excusable circumstances is an expressed basis for a trial continuance. (See Cal. Rules of Court, Rule 3.1332(c)(3).)

Defendant has presented sufficient facts to show that there is good cause to continue trial. First, Defendant has a statutory right to file a motion for summary judgment, and has explained that it believes it has a valid reason to do so due to the Court of Appeals’ ruling regarding Proposition 22, which it argues will provide a defense for Plaintiff’s vicarious liability theory. Next, while Plaintiff argues that Defendant is only entitled to one medical examination, and not a mental examination, Defendant is entitled to file a motion and make an argument that it has good cause to conduct additional examinations, including a mental examination. The Court finds that Defendant would be prejudiced if it was required to go to trial when it could potentially save costs and judicial resources by filing a dispositive motion such as a motion for summary judgment. Defendant will also be prejudiced it does not have the opportunity to conduct its additional discovery. On the other hand, Plaintiff has not even argued he would suffer any prejudice by a trial continuance. Lastly, the current trial date conflicts with defense counsel’s trial calendar. Thus, there are no alternative means to address the problem, and the interests of justice are best served thereby. As such, Defendants’ motion is granted. Trial is continued to March 26, 2024. Discovery and motion cutoff dates shall be based on the new trial date.

Conclusion

Accordingly, Defendant’s motion to continue trial is GRANTED. Trial is continued to March 26, 2024. Discovery and motion cutoff dates shall be based on the new trial date.

Moving party is ordered to give notice.