Judge: Steven A. Ellis, Case: 20STCV44313, Date: 2024-08-30 Tentative Ruling
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Case Number: 20STCV44313 Hearing Date: August 30, 2024 Dept: 29
Touton v. Keck Hospital of USC
20STCV44313
Defendants’ Motion to Continue Trial
Tentative
The motion is granted in part.
Background
On November 18, 2020, Louis L. Touton
(“Touton”) and Jean Gottlieb (collectively “Plaintiffs”) filed a complaint
against Keck Hospital of USC, Keck Medicine of USC, Keck Medical Center of USC
dba Keck Hospital of USC, John Lipham, M.D. (“Lipham”), Cali Elyse Johnson,
M.D. (“Johnson”), Luke Putnam, M.D. (“Putnam”), and Does 1 through 50 for
professional medical negligence and loss of consortium arising from a
laparoscopic hiatal hernia repair surgery on August 28, 2019.
On January 15, 2021, Keck Hospital of
USC (also erroneously sued as Keck Medicine of USC and Keck Medical Center of
USC dba Keck Hospital of USC) (“Keck”), Lipham, Johnson, and Putnam filed an
answer.
In July 2021 and August 2022, the
Court, at the request of Plaintiffs, dismissed Johnson and Putnam. The remaining defendants are Keck and Lipham
(collectively, “Defendants”).
The case was initially assigned a
trial date in May 2022. On the written stipulation
of the parties filed in April 2022, the Court continued the trial date to June
2023. On the ex parte application of
Defendants filed in May 2023, the Court continued the trial to August
2023. On the oral stipulation of the
parties at the Final Status Conference in July 2023, the Court continued the
trial to January 2024. On the written
stipulation of the parties filed in December 2023, the Court continued to the
trial to February 29, 2024.
On February 29, 2024, the parties
appeared and answered ready. Department
1 advised that there were no trial courtrooms available, and the trial was
continued to March 13.
On March 13, 2024, the parties
appeared and answered ready. Department
1 advised that there were no trial courtrooms available, and the trial was
continued to March 21.
On March 21, 2024, the parties
appeared and answered ready. Department
1 advised that there were no trial courtrooms available, and the trial was
continued, on the oral stipulation of the parties, to August 19.
On August 14, 2024, Defendants filed an ex parte application
to continue trial. On August 15, 2024, the Court set the application for
hearing, on expedited briefing, on August 30, 2024. Solely as an interim measure, the Court
continued the trial date to September 9, 2024.
Plaintiff filed an opposition on August 23. Defendants filed a reply, along with
objections to some of Plaintiff’s evidence, on August 27.
Legal Standard
Code of Civil Procedure section 128,
subdivision (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.)
“To ensure the prompt disposition of civil
cases, the dates assigned for trial are firm.
All parties and their counsel must regard the date set for trial as
certain.” (Cal. Rules of Court, rule 3.1332(a).)
“Although continuances of trials are
disfavored, each request for a continuance must be considered on its own
merits.” (Cal. Rules of Court, rule
3.1332(c).) “The court may grant a
continuance only on an affirmative showing of good cause requiring the
continuance.” (Ibid.) Circumstances that may support a finding 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).)
“In ruling on a motion or application for
continuance, the court must consider all the facts and circumstances that are
relevant to the determination.” (Cal.
Rules of Court, rule 3.1332(d).) California
Rules of Court, rule 3.1332(d) sets forth a non-exhaustive list of factors that
the court may consider:
“(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).)
Evidentiary Objection
Defendants assert four objections to the
Declaration of Sarah A. Kremen, M.D. The Court OVERRULES all four objections.
Discussion
Defendants seek to continue trial for approximately six
months. According to Defendants, there
has been a significant, unanticipated change in the case since discovery closed
in the summer of 2023. Specifically, Plaintiff
Touton was diagnosed with Alzheimer’s disease after expert discovery closed,
and Defendants understand that Plaintiffs will argue that the development of
this disease was hastened by the injuries at issue in this case. (Yarvis Decl.,
¶ 3.) The life care plans developed prior to the close of discovery were based
on Plaintiff Touton being “largely independent” and living at home. (Ibid.) With this new diagnosis, however, Defendants are
concerned that the life care plans that were previously prepared will need to
be modified, perhaps substantially, as it is unclear whether Touton will need
to live in a memory care assisted facility. (Id., ¶ 7.) Defendants seek
to reopen both fact and expert discovery to address these new issues. (Id., ¶¶ 8-9.)
In their opposition, Plaintiffs make a number of arguments. Among other things, Plaintiffs argue that
Defendants have not shown good cause for a trial continuance at all, and
certainly not for six months, as Defendants have been aware of Touton’s
cognitive decline since at least January or February 2024, if not much sooner,
and that in any event they are willing to proceed to trial based on the
existing life care plans. Plaintiffs argue
that no continuance should be granted because of the Touton’s cognitive decline
and, if anything, a trial preference should be granted. Plaintiffs argue that trial continuances are
disfavored and should be granted sparingly.
Plaintiffs argue that a six month continuance bring this matter close to
the five-year deadline (the complaint was filed in November 2020).
The Court has carefully considered the evidence submitted
and the arguments made by each side. On
this record, the Court finds good cause for a trial continuance, but not a
continuance as long as Defendants request; rather, the Court finds good cause
for a continuance of approximately three months.
The Court emphasizes that it is not simply taking the
midpoint between the two sides (a six month continuance versus no
continuance). Rather, the Court finds
that there is good cause to continue the trial, and to reopen discovery for
limited purposes, because there has been a change in circumstances: although Plaintiff
Touton’s cognitive decline was previously known to both sides, Touton’s health has
recently “rapidly declined.” (Kremen
Decl., ¶ 9.) Plaintiff is generally
entitled to present evidence of his health up to the time of trial, and
Defendants should have the opportunity to take discovery to assess the nature
of Touton’s recent rapid decline in mental health, and to assess whether this
change of circumstances affects the life care plan that the experts prepared more
than a year ago (before this recent, rapid decline).
The Court finds that a continuance of approximately three
months is a sufficient amount of time to conduct the necessary discovery, which
is limited to: (1) fact and expert discovery regarding Touton’s cognitive
decline in the past 12 months; and (2) expert discovery regarding what effect,
if any, Touton’s cognitive decline in the past 12 months will have on the life
care plans.
The Court notes that Plaintiffs now assert, in their
opposition to this motion, that they may be entitled to a trial preference
under Code of Civil Procedure section 36.
The proper way to obtain such a preference, however, is through filing
of a motion for preference, not through opposing a motion to continue. Having said that, the Court has considered
the evidence of Plaintiff Touton’s health, and specifically his cognitive decline,
in making this order and limiting the continuance to three months.
Conclusion
The Court GRANTS Defendants’ motion in part.
The Court CONTINUES the trial date to a date
on or after December 2, 2024. The Final
Status Conference is reset based on the new trial date.
The Court ORDERS that discovery, which otherwise
remains closed, is reopened for the following limited purposes only: (1) fact and
expert discovery regarding Plaintiff’s Touton’s cognitive decline in the past
12 months; and (2) expert discovery regarding what effect, if any, Touton’s
cognitive decline in the past 12 months will have on the life care plans. As to that discovery (only), the discovery deadlines
are reset based on the new trial date.
Moving party is ORDERED to give notice.