Judge: Steven A. Ellis, Case: 20STCV38081, Date: 2024-04-04 Tentative Ruling

DEPARTMENT 29 - LAW AND MOTION RULINGS IMPORTANT  (PLEASE SEND YOUR E-MAIL TO DEPT. 29 NOT DEPT. 2)

Communicating with the Court Staff re the Tentative Ruling 1. Please notify the courtroom staff by email not later than 9:30 a.m. on the day of the hearing if you wish to submit on the tentative ruling rather than argue the motion. The email address is SSCDEPT29@lacourt.org. Please do not use any other email address. 2. You must include the other parties on the email by "cc." 3. Include the word "SUBMISSION" in all caps in the Subject line and include your name, contact information, the case number, and the party you represent in the body of the email. If you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the motions. THE COURT WILL HEAR ARGUMENT UNLESS BOTH SIDES SUBMIT ON THE TENTATIVE.  4. Include the words "SUBMISSION BUT WILL APPEAR" if you submit, but one or both parties will nevertheless appear. 5. For other communications with Court Staff a. OFF-CALENDAR should appear in all caps in the Subject line where all parties have agreed to have a matter placed off-calendar. All counsel should be cc'ed (and where appropriate parties not represented by counsel) and the body of the email should state: (a) name and case number; (b) date of proceeding. b. CASE SETTLED should appear in all caps in the Subject line where all parties have agreed that the case has settled for all purposes. All counsel should be cc'ed (and where appropriate parties not represented by counsel) and the body of the email should state: (a) name and case number; (b) whether notice of settlement/dismissal documents have been filed; (c) if (b) has not been done, a date one year from the date of your email which will be a date set by the court for an OSC for dismissal of the case. c. STIPULATION should appear in all caps in the Subject line where all parties have stipulated that a matter before the court can be postponed. All counsel should be cc'ed (and where appropriate parties not represented by counsel) and the body of the email should state: (a) name and case number; (b) what proceeding is agreed to be postponed e.g. Trial, FSC; (c) the agreed-upon future date; (d) whether all parties waive notice if the Court informs all counsel/parties that the agreed-upon date is satisfactory. This communication should be used only for matters that are agreed to be postponed and not for orders shortening time. 6. PLEASE MAKE SURE THAT ALL COMMUNICATIONS WITH COURT STAFF DEAL ONLY WITH SCHEDULING AND ADMINISTRATIVE MATTERS AND DO NOT DISCUSS THE MERITS OF ANY CASE. (UPDATED 6/17/2020) 
IMPORTANT:  In light of the COVID-19 emergency, the Court encourages all parties to appear remotely.  The capacity in the courtroom is extremely limited.  The Court appreciates the cooperation of counsel and the litigants. 
ALSO NOTE:  If the moving party does not contact the court to submit on the tentative and does not appear (either remotely or in person), the motion will be taken off calendar.  THE TENTATIVE RULING WILL NOT BE THE ORDER OF THE COURT.

Case Number: 20STCV38081    Hearing Date: April 4, 2024    Dept: 29

Defendant’s Motion to Continue Trial

Tentative

The motion is denied.

Background

On October 5, 2020, Sylvia Topete (“Plaintiff”) filed a complaint against J.S. Multani Subway, Inc dba Subway (“Defendant”) and Does 1 through 50 for (1) battery, (2) intentional infliction of emotional distress, (3) negligence, (4) negligence, premise liability, and (5) negligent hiring, training, supervision and retention, arising from an alleged physical altercation that took place on October 6, 2018 on Defendant’s premises.  Defendant filed its answer on December 2, 2021.

Plaintiff was initially represented by counsel.  On December 19, 2023, Plaintiff filed a substitution of attorney; Plaintiff is now representing herself in pro per. 

On March 1, 2024, Defendant filed its motion for summary judgment.

On March 12, 2024, Defendant filed this motion to continue trial. No opposition has been filed.

Legal Standard

Code Civ. Proc. § 128(a)(8) provides that the court has the power to amend and control its process and orders so as to make them conform to law and justice. “The power to determine when a continuance should be granted is within the discretion of the trial court.” (Color-Vue, Inc. v. Abrams (1996) 44 Cal.App.4th 1599, 1603.) “A trial court has wide latitude in the matter of calendar control including the granting or denying of continuances.” (Park Motors, Inc. v. Cozens (1975) 49 Cal.App.3d 12, 18.) 

Each request for a continuance must be considered on its own merits according to California Rules of Court, Rule 3.1332(c). The court may grant a continuance only on an affirmative showing of good cause requiring the continuance. Circumstances of good cause include: 

“(1) The unavailability of an essential lay or expert witness because of death, illness, or other excusable circumstances; 

(2) The unavailability of a party because of death, illness, or other excusable circumstances; 

(3) The unavailability of trial counsel because of death, illness, or other excusable circumstances; 

(4) The substitution of trial counsel, but only where there is an affirmative showing that the substitution is required in the interests of justice; 

(5) The addition of a new party if: (A) The new party has not had a reasonable opportunity to conduct discovery and prepare for trial; or (B) The other parties have not had a reasonable opportunity to conduct discovery and prepare for trial in regard to the new party's involvement in the case; 

(6) A party's excused inability to obtain essential testimony, documents, or other material evidence despite diligent efforts; or 

(7) A significant, unanticipated change in the status of the case as a result of which the case is not ready for trial.” 

(Cal. Rules of Court, Rule 3.1332(c).) 

California Rules of Court, Rule 3.1332 sets forth a list of non-exhaustive factors to be analyzed when determining whether good cause for a trial continuance is present. A court considers factors such as: 

“(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.” 

(Cal. Rules of Court, Rule 3.1332(d).)

“A trial court may not refuse to hear a summary judgment motion filed within the time limits of section 437c.” (Sentry Ins. Co. v. Superior Court (1989) 207 Cal.App.3d 526, 529; accord Cole v. Superior Court (2022) 87 Cal.App.5th 84, 88.)

Discussion

Defendant contends that good cause exists to continue trial as Defendant has filed a motion for summary judgment, set to be heard October 17, 2024, after the current trial date of June 14, 2024.  A party has a right to have a timely filed and served summary judgment motion heard before trial.  (Cole v. Superior Court (2022) 87 Cal.App.5th 84, 88; Sentry Ins. Co. v. Superior Court (1989) 207 Cal.App.3d 526, 529.)

Here, however, it does not appear that the motion was timely served.  The motion was served by electronic means on March 1, 2024.  That is not proper service on a pro per plaintiff.  Although email service may be mandatory for represented parties, litigants who are in pro per are not subject to mandatory email service, and Defendant has presented no evidence that Plaintiff has consented to email service.  (See Code Civ. Proc., § 1010.6, subd. (c)(2); Cal. Rules of Court, rule 2.251(c)(3)(B).) 

Moreover, the trial date is June 14, 2024.  The last day for summary judgment motions to be heard is on May 15, 2024.  The last day for timely filing and timely personal service of a summary judgment motion in this case was on March 1, 2024.  The last day for timely electronic service of a summary judgment motion in this case was on February 28, 2024.  Here, the electronic service of the summary judgment motion occurred on March 1, 2024, two days late.

Defendant has not shown good cause for a continuance based on a summary judgment motion that was timely filed but was not timely served.  There is no right to have an untimely motion for summary judgment heard before trial.

Defendant does not contend that there is any other good cause for the requested continuance.

Accordingly, the motion to continue trial is DENIED.

Conclusion

The Court DENIES the Motion to Continue Trial.

Moving Party is ORDERED to give notice.