Judge: Steven A. Ellis, Case: 20STCV43784, Date: 2023-09-13 Tentative Ruling

Case Number: 20STCV43784    Hearing Date: September 13, 2023    Dept: 29

TENTATIVE

Defendant Rachel Provisor’s motion to continue the trial or in the alternative, an order specially setting Defendant Provisor’s motion for summary judgment before the trial date is GRANTED.

Legal Standard

Per California Rules of Court (CRC), rule 3.1332, subdivision (c): the court may grant a continuance for “good cause,” which includes: (1) unavailability of an essential lay or expert witness due to death, illness, or other excusable circumstances; (2) unavailability of a party due to death, illness, or other excusable circumstances; (3) unavailability of trial counsel due to death, illness, or other excusable circumstances; (4) substitution of trial counsel required in the interests of justice; (5) addition of a new party or other parties in regard to a new party’s involvement hasn’t had a reasonable opportunity to conduct discovery and prepare for trial; (6) party’s excused inability to obtain essential testimony, documents, or other material evidence despite diligent efforts; or (7) significant, unanticipated change in the status of the case as a result of which indicates the case is not ready for trial. (CRC Rule 3.1332(c).)

Other relevant factors to be considered 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” (CRC Rule 3.1332(d).)

“A trial court has great discretion in the disposition of an application for a continuance. Absent a clear abuse of discretion, the court’s determination will not be disturbed.” (Estate of Smith v. Atkinson (1973) 9 Cal.3d 74, 81.) “Such discretion is abused, however, where the lack of a continuance results in the denial of a fair hearing.” (Rankin v. Curtis (1986) 183 Cal.App.3d 939, 947.)

Discussion

Here, Defendant Rachel Provisor’s moves to continue trial to November 15, 2024, or in the alternative, an order specially setting Defendant Provisor’s motion for summary judgment before the trial date. Defendant Provisor states that she filed and personally served her motion for summary judgment on July 14, 2023. (Declaration of Mark W. Norman at ¶ 2.) Defendant Provisor states that when scheduling the motion for summary judgment the first available date for a hearing was October 16, 2024. (Id.)

Defendant Provisor argues that Code Civ. Proc., § 437c(a)(3) requires a motion for summary judgment be heard no later than 30 days before trial but through no fault of her own she was unable to secure a hearing date in compliance with the statute. (Id. at ¶ 3.) Further, Defendant Provisor asserts that there is time to hear the motion for summary judgment 30 days before the current trial, which is September 29, 2023. (Id. at ¶ 2.)

No party has opposed the motion. Accordingly, it appears that no party would suffer any unfair prejudice from the requested continuance.

The Court finds that good cause for continuance exists in this instant case. Defendant Provisor provided sufficient evidence that (1) Defendant Provisor timely filed and served her motion for summary judgment; (2) the only available alternative means to address the problem giving rise to the motion for a continuance is to advance the motion for summary judgment hearing date to September 29, 2023; (3) and the first available date to hear the motion for summary judgment is a few days before the current trial date, which constitutes a significant unanticipated change in the status of the case.

Conclusion

Accordingly, Defendant’s motion to continue the trial is GRANTED.

Trial is continued to mid November 2024 (on or after November 15, 2024). Final Status Conference and all deadlines are reset based on new trial date.

Moving party is ordered to give notice.