Judge: Serena R. Murillo, Case: 22STCV04265, Date: 2023-05-05 Tentative Ruling

Case Number: 22STCV04265    Hearing Date: May 5, 2023    Dept: 29

TENTATIVE

The unopposed motion to continue trial is GRANTED.

Legal Standard

Pursuant to Code of Civil Procedure, section 436, “the court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper: (a) Strike out any irrelevant, false, or improper matter inserted in any pleading. (b) Strike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.”  The grounds for a motion to strike must “appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice.”  (Code Civ. Proc., § 437.)   

Any party may move to strike the whole or any part of a pleading within the time allotted to respond to the pleading.  (Code Civ. Proc., § 435, subd. (b)(1).)  The allegations of a complaint “must be liberally construed, with a view to substantial justice between the parties.”  (Code Civ. Proc., § 452.)  The court “read[s] allegations of a pleading subject to a motion to strike as a whole, all parts in their context, and assume[s] their truth.”  (Clauson v. Sup. Ct. (1998) 67 Cal.App.4th 1253, 1255 (Clauson).) 

Discussion

Defendant moves to continue trial. Defendant provides that this lawsuit arises out of an incident in which plaintiff was suffered a broken nose from an assault by an individual currently identified only by her first name, Larissa. She is believed by plaintiff to be a hair stylist at Defendant RVM’s salon. “Larisa” must be fully identified and then located so she can be served with the Doe Amendment on the Complaint and Cross Complaint for Indemnity. She also needs to be located to be deposed to determine if she was an agent or employee of RVM Salon at the time of the incident. Defendant has been attempting to obtain information on “Larisa” from RVM’s salon since November 9, 2022 - first by way of deposition subpoena and then by Notice of Person Most Knowledgeable deposition once RVM appeared as a defendant. RVM did not appear for either deposition or produce the documents relating to “Larisa.” The parties thus have a looming trial date without a necessary party. Defendant expects to eventually be able to obtain information on Larisa and serve her with the Cross-Complaint and Notice of Deposition, but this is likely to take several months and not at all unless Defendant can obtain a deposition of RVM’s Person Most Knowledgeable. Further, Defendant argues that Plaintiff was accompanied with Ryan Kuhn, but it appears he moved to Florida, and can no longer be produced by Plaintiff’s counsel. The requested continuance will allow defendant additional time to obtain the current location and deposition of this critical witness. Moreover, Plaintiff had surgery on December 23, 2022, and the bill for this surgery was not produced. Further, plaintiff revealed for the first time she saw a dentist for the accident injuries and could not recall the name of the dentist.

The Court finds there is good cause to continue trial as the parties need additional time to locate the defendant who allegedly assaulted Plaintiff to add her in this case. Moreover, the parties need additional time to conduct discovery, as it has not yet been completed. In addition, the Court notes that Defendant RVM filed its answer in October of 2022, and that plaintiff has recently moved to strike the answer due to being filed in pro per by a corporation. Thus, it appears the case is still in its early stages. Further, it does not appear any party would be prejudiced by a continuance, and no party has filed an opposition contending otherwise. Additionally, this is the first continuance in this case. Thus, the motion is granted. Trial is continued to January 8, 2024

Conclusion

Accordingly, the motion to continue trial is GRANTED. Trial is continued to January 8, 2024 at 8:30 a.m.; FSC December 27, 2023 at 10:00 a.m. Discovery and motions cutoff dates are to track the new trial date.

Moving party is ordered to give notice.