Judge: Steven A. Ellis, Case: 20STCV20717, Date: 2023-09-11 Tentative Ruling

Case Number: 20STCV20717    Hearing Date: September 11, 2023    Dept: 29

TENTATIVE

The motion to continue trial is granted.

Background

            This is an action for premises liability, negligence and products liability.  Plaintiff Kristopher Diaz alleges that he injured his knees in two separate accidents while serving as a shotcrete nozzleman for his employer, who was subcontracted by Defendants, a worksite located at 3739-3759 Cardiff Avenue, Los Angeles, CA 90034 (the “Cardiff Project”).  Plaintiff asserts that both accidents were caused by Defendants’ use of improper scaffolding for his nozzleman duties. 

            On June 3, 2021, Plaintiff filed this action against Defendants Robert Green, Frame DTCC, LLC, Mika Design Group, Robert James Taylor Architects, MJS Design Group and Angel Herrera.  On February 7, 2022, Plaintiff filed a First Amended Complaint alleging: (1) Premises Liability; (2) Negligence Per Se; (3) Negligent Exercise of Retention of Control Over Safety Conditions; (4) Negligent Provision of Unsafe Equipment; and (5) Products Liability. 

            On April 18, 2022, Defendant Frame DTCC, LLC filed an answer and cross-complaint against Mitchell Brothers Concrete, LLC (“Mitchell”) and R.D. Green Construction alleging: (1) comparative indemnity; and (2) express indemnity. 

            On April 26, 2022, Defendant Frame DTCC dismissed R.D. Green Construction from the cross-complaint. 

            On May 4, 2022, Plaintiff dismissed Mika Design Group, Robert James Taylor Architects and MJS Design Group from the complaint. 

            On May 23, 2022, Mitchell an answer and a cross-complaint against Frame DTCC, LLC alleging (1) equitable indemnity; (2) contribution; and (3) declaratory relief. 

            On July 8, 2022, Plaintiff filed Amendments naming Mitchell as DOE 1 and R.D. Green Construction, Inc. as DOE 2. 

            On October 7, 2022, the court continued the trial date from December 1, 2022 to October 17, 2023 pursuant to an order and stipulation to continue trial, FSC and related motion/discovery dates.   

            On August 10, 2023, Mitchell Brothers Concrete filed the instant motion.  On August 28, 2023, Plaintiff filed a partial opposition to this motion.  On August 30, 2023, Mitchell filed a reply to the opposition. 

Summary

            Moving Arguments

            Mitchell asks that the trial date be continued from October 17, 2023 to June 17, 2024.  Mitchell argues trial is less than three months away and it has not had a reasonable opportunity to conduct necessary discovery or to prepare for trial due to the failure of Plaintiff’s employer, Nationwide Shotcrete, Inc., to abide by the terms of the duly noticed and served Deposition Subpoena.  Mitchell states that it diligently moved to compel deposition and production of records from Nationwide, which motion is set for hearing on March 25, 2024. 

            Mitchell also moves for a continuance based on deposition testimony from R.D. Green Construction indicating that Plaintiff may have been injured in an altercation several days before the alleged incident in this case and was incarcerated on the alleged date of injury.  Mitchell argues there is good cause for a trial continuance, so that it may obtain Plaintiff’s employment records, payroll records, tailgate safety meeting sign in sheets, incident reports and witness information. 

            Mitchell met and conferred with Plaintiff and co-Defendants R.D. Green Construction and Frame DTCC, LLC regarding a trial continuance.  Mitchell argues Plaintiff was unwilling to stipulate to a trial continuance beyond February 2024. 

            Opposing Arguments

            Plaintiff does not oppose the request for trial continuance.  Plaintiff only objects to the grounds stated for seeking the trial continuance.  Plaintiff argues Mitchell has intentionally delayed Plaintiff’s deposition in hopes of gaining some advantage in this case.  Plaintiff argues Mitchell’s inability to obtain necessary discovery partially arises from counsel’s own decision to delay Plaintiff’s deposition.  Plaintiff asks that the Court order counsel to take Plaintiff’s deposition within a reasonable time frame, regardless of the outcome of the pending motion to compel against Nationwide Shotcrete. 

            Reply Arguments

            Mitchell argues it has moved as expeditiously as possible to obtain Plaintiff’s employment and project related file from Plaintiff’s employer.  Mitchell argues critical documents are being withheld by Nationwide.  Mitchell argues it will be substantially prejudiced if it is forced to go to trial without the critical information being withheld from him. 

            Mitchell argues Plaintiff’s refusal to stipulate to a continuance longer than February 2024, which is prior to the hearing on Mitchell’s motion to compel against Nationwide, severely prejudices its ability to defend the case. 

            Mitchell argues there has only been one prior continuance in this matter and no private mediation has yet been scheduled.  Mitchell argues it has demonstrated good cause for a trial continuance. 

Legal Standard

            “To ensure the prompt disposition of civil cases, the dates assigned for a trial are firm. All parties and their counsel must regard the date set for trial as certain.” (CRC 3.1332(a); see also CRC 3.1332(c)—“continuances of trials are disfavored”; Reales Investment, LLC v. Johnson (2020) 55 Cal.App.5th 463, 468. 

            An affirmative showing of “good cause” according to Judicial Council standards is required on a motion for continuance before or during trial.  (CRC 3.1332(c).)  The following circumstances may indicate the presence of good cause warranting a continuance:

— unavailability of essential percipient or expert witness because of death, illness or other excusable circumstances; (CRC 3.1332(c)(1))

— unavailability of a party because of death, illness or other excusable circumstances; (CRC 3.1332(c)(2))

— unavailability of trial counsel because of death, illness or other excusable circumstances; (CRC 3.1332(c)(3))

— substitution of trial counsel where there is an “affirmative showing that the substitution is required in the interests of justice”; (CRC 3.1332(c)(4))

— addition of a new party if the new party has not had a reasonable opportunity to conduct discovery and prepare for trial or the other parties have not had an adequate opportunity to prepare for trial in regard to the new party; (CRC 3.1332(c)(5)(A), (B))

— a party's inability to obtain essential testimony, documents or other material evidence despite diligent efforts; (CRC 3.1332(c)(6)) or

— a significant unanticipated change in the status of the case as a result of which the case is not ready for trial. (CRC 3.1332(c)(7))

Other factors include:

— proximity of the trial date;

— any previous continuances, extensions of time or delays of trial;

— length of the requested continuance;

— availability of alternative means to address the problem that gave rise to the continuance request;

— prejudice the parties or witnesses may suffer if there is a continuance;

— if the case is entitled to a preference, the reasons for that status and whether the need for a continuance outweighs the need to avoid delay;

— court's calendar and the impact of granting a continuance on other pending trials; and

— whether all parties have stipulated to the continuance.  (CRC 3.1332(d).)

Discussion

            Mitchell establishes good cause for a trial continuance.  Mitchell’s discovery is not yet complete. (CRC 3.1332(c)(6).)  Mitchell served Plaintiff’s employer, Nationwide Shotcrete, with a deposition subpoena on March 2, 2023.  (Motion, Daley Dec., ¶2.)  No witness appeared for deposition and a certificate of non-appearance was taken. (Id. at ¶3.)  Mitchell filed a Motion to Compel Deposition of Nationwide’s PMQ and Production of Documents on April 21, 2023.  (Id. at ¶5.)  The first available hearing date was for March 25, 2024, which is after the current trial date of October 17, 2023.  (Id. at ¶5.)  Mitchell is seeking discovery of Plaintiff’s employment records in light of deposition testimony calling into question Plaintiff’s claim that he was at the worksite when the accidents allegedly occurred.  (Id. at ¶7. 

            Plaintiff also does not oppose the request for trial continuance.  Plaintiff only objects to Mitchell’s claims of diligence in seeking necessary discovery.  No other parties opposed the motion to continue trial date.  No party has asserted that they would be unfairly prejudiced by a continuance of trial. This also weighs in favor of continuance.  (CRC Rule 3.1332(d).)

            There has only been one trial continuance.  Defendant requests a continuance of the trial date from October 17, 2023 to June 17, 2024, approximately eight months. (CRC Rule 3.1332(d).)

            Mitchell establishes good cause for the requested trial continuance

            The Court denies, without prejudice, Plaintiff’s request that the Court order Mitchell to depose Plaintiff promptly.  This is beyond the scope of the issues raised in the motion.  In granting the motion, the Court has made a finding of good cause for the trial continuance but takes no position on the finger-pointing between counsel regarding the history of the case and the diligence, or lack thereof, by the parties. 

            This is the second trial continuance.  The parties should treat the new trial date, and all discovery and motion cutoffs, as firm.    

Conclusion

            Mitchell’s Motion to Continue Trial Date is GRANTED. 

            Trial is continued to mid June 2024.  The Final Status Conference and all deadlines are reset based on the new trial date..