Judge: Serena R. Murillo, Case: 21STCV41074, Date: 2023-04-11 Tentative Ruling
Case Number: 21STCV41074 Hearing Date: April 11, 2023 Dept: 29
TENTATIVE
The motion to continue trial is GRANTED. Trial is continued to January 23, 2024 at 8:30 a.m.; FSC January 11, 2024 at 10:00 a.m.
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
Preliminary Issue
Defendant attached a declaration with some exhibits from his counsel, attorney Parker, to his reply. While new evidence is generally not permitted on a reply, the additional information provided by Defendant does not appear to be new, but rather appears to be in direct response to issues raised by Plaintiff’s opposition. Additionally, Plaintiff has not objected to the inclusion of such additional information on Defendant’s reply. (See Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1537; Jacobs v. Coldwell Banker Residential Brokerage Co. (2017) 14 Cal.App.5th 438, 449.) Thus, the Court may consider this additional information.
Analysis
Defendant moves to continue trial from May 8, 2023 to sometime in 2024, arguing good cause exists because: (1) Defendant’s expert is not able to conduct an independent medical examination until at least August 14, 2023; and (2) Defendant’s counsel is engaged in trial throughout the month of May 2023, which will likely conflict with the trial of this action.
The Court finds that there is good cause for continuing the trial date, as Defendant has shown that its designated expert is not able to conduct the independent medical examination necessary for Defendant’s defense until August 14, 2023. Defendant would be unduly prejudiced if not permitted to have his designated expert conduct the necessary independent medical examination in preparation for Defendant’s trial defense. Defendant’s counsel has also shown many trials being scheduled for May 2023, which creates a potential scheduling conflict, and that Defendant’s counsel is otherwise engaged with various other trials throughout the year. Additionally, the Court’s file shows that no previous trial continuances have been requested before the instant one.
The Court is not persuaded by Plaintiff’s opposition to continue the trial date. First, Plaintiff misconstrues the amount of time that has lapsed in this matter, which Defendant addressed in his reply. This case is not over three years old, but rather is only a year and a half old, as this action was first filed in November 2021, i.e., almost two years after the alleged accident. Thus, Plaintiff’s complaints of the pain and suffering she has been enduring since the accident, while unfortunate, do not amount to undue prejudice to Plaintiff. Plaintiff has otherwise not presented any evidence of undue prejudice to Plaintiff if trial is continued.
Second, Plaintiff’s argument about Defendant being able to choose any expert is also unavailing. Defendant is entitled to the expert of his choosing. Plaintiff also overlooks the deadline for designating expert witnesses prescribed in Code of Civil Procedure section 2034.220, which requires experts to be designated either 10 days after the initial trial date has been set or 70 days before that trial date, whichever is closer to trial. It is now less than 70 days before the trial date, so Defendant is otherwise attached to the expert he has designated.
Accordingly, the Court finds that there is good cause for continuing the trial date.
The Court notes that Defendant did not request a continuance of all trial related deadlines based on the new trial date, such as discovery and motion cutoff dates. However, since Defendant seeks this trial continuance primarily to conduct an independent medical examination on August 14, 2023, the Court will also order that all discovery and motion cutoffs are set according to the new trial date.
Conclusion
Defendant’s Motion to Continue Trial is GRANTED.
Defendant is ordered to give notice.