Judge: Stephen I. Goorvitch, Case: 19STCV20880, Date: 2023-09-18 Tentative Ruling

Case Number: 19STCV20880    Hearing Date: September 18, 2023    Dept: 39

Juan Carlos Chavez v. Immaculate Roofing Company, Inc.

Case No. 19STCV20880

Order Re-Setting Five Year Date

Defendant’s Ex Parte Application to Continue Trial Date and all Related Dates

            Plaintiff Juan Carlos Chavez (“Plaintiff”) filed this employment action against Immaculate Roofing Company, Inc. (“Defendant”) on June 14, 2019.  Default was entered on September 3, 2019, and a default judgment was entered on February 7, 2020.  The Court (Murphy, J.) granted a motion to set aside the default/default judgment on March 19, 2021.  The time period of September 3, 2019, to March 19, 2021—which is 563 days—shall be excluded from the five-year deadline, per Code of Civil Procedure section 583.240.  Therefore, the deadline for this case to proceed to trial is December 29, 2025.  Defendant’s counsel stipulated to this deadline in open court. 

            Defendant’s counsel noticed Plaintiff’s deposition for August 17, 2023.  (Declaration of S. Marin Keleti, ¶ 3.)  Plaintiff’s counsel then informed him that she was not available and suggested that the deposition be rescheduled to a date between August 28 through August 30, 2023.  (Id., ¶ 4 & Exh. #2.)  Defendant’s counsel called Plaintiff’s counsel to reschedule the deposition but never received a response to multiple voicemail messages.  (Id., ¶ 5.)  Plaintiff’s counsel claims this occurred after August 30, 2023.  (Declaration of Christopher Afgani, ¶ 7.)  Defendant’s counsel disputes this representation, stating: “When I began calling Ms. Ortiz and Mr. Afgani, I never received any response to my telephone voice mail messages.  Instead, Plaintiff’s counsel pushed ahead with their own agenda.  For example, on August 11, 2023, Mr. Afgani sent me an e-mail regarding contemplated motions in limine . . . .”  (Declaration of S. Martin Keleti, ¶ 5.)  The Court need not resolve this dispute.  Because there is good cause for a trial continuance, there is no prejudice in reopening the discovery cut-off and permitting Defendants’ counsel to take Plaintiff’s deposition.   

On September 7, 2023, Defendant’s counsel contracted COVID-19.  (Id., ¶ 9.)  Three days later, on September 10, 2023, Defendant’s counsel’s spouse contracted COVID-19 and suffered a heart attack.  (Ibid.)  Defendants’ counsel has been caring for his spouse: “Remotely coordinating with doctors, nurses, and hospital support staff, and reporting on progress to family has taken up many of my waking hours, and my preoccupation with my spouse’s condition has wreaked havoc on my ability to be productive.”  (Ibid.)  It is clear that Defendant’s counsel will not be available for trial on the current trial date through no fault of his own.  These circumstances constitute good cause to grant Defendant’s ex parte application.   

            Based upon the foregoing, the Court orders as follows:

            1.         Defendant’s ex parte application to continue the trial date and all related dates is granted.

            2.         The Court discharges the Order to Show Cause re: Sanctions.

            3.         The Court advances and vacates all dates.

            4.         The Court re-sets the deadline for this case to proceed to trial under Code of Civil Procedure section 583.310 is December 29, 2025. 

            5.         The Court sets the following dates, which are the first available dates:

                        Final Status Conference:                    May 10, 2024, at 9:00 a.m.

                        Trial:                                                   May 21, 2024, at 9:30 a.m. 

The discovery and motions deadlines shall be based on the former trial date (October 3, 2023) except for the following, which shall be based on the new trial date: (1) Depositions of the parties, (2) Expert designation deadlines, and (3) Expert discovery. 

            6.         Defendant’s counsel shall provide notice and file proof of such with the Court.