Judge: Steven A. Ellis, Case: 21STCV22513, Date: 2024-12-19 Tentative Ruling
Case Number: 21STCV22513 Hearing Date: December 19, 2024 Dept: 29
Mirzahhanyan v. Rotisserie Restaurants, Inc.
21STCV22513
Motion to Continue Trial filed by Defendants Rotisserie
Restaurants, Inc dba Tarme Mediterranean Grill and Pat Sungkamee.
Tentative
The motion is DENIED.
Background
On June 16, 2021, Mher Mirzakhanyan (“Plaintiff”) filed a
complaint against Rotisserie Restaurants, Inc dba Tarme
Mediterranean Grill and Pat Sungkamee (collectively “Defendants”) and Does 1 to
25 for motor vehicle negligence stemming from an automobile accident that
occurred on December 23, 2019.
On
July 15, 2021, Defendants filed their answer.
On
March 15, 2024, Defendants’ motion for summary judgment was denied.
On
November 21, 2024, Defendants filed a motion for summary judgment set to be
heard on March 20, 2025.
Trial
is currently set for March 3, 2025.
On November 21,
2024, Defendants filed this motion to continue trial. Plaintiff filed an
opposition on December 6; Defendants filed a reply on December 11.
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).)
“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 requests a trial continuance to accommodate the motion for summary judgment to
be heard on March 28, 2025. (Smith Decl., ¶ 5.)
The Court of
Appeal in Sentry held that a party who files a
timely motion for summary judgment has the right for the motion to be heard
before trial. (Sentry
Ins. Co. v. Superior Court (1989) 207 Cal.App.3d 526, 528.)
Here, however, Defendants did not timely serve and file the
motion for summary judgment. A motion for summary judgment must be heard thirty
days before trial: in this case, the last day for the motion to be heard is
January 31, 2025. The motion must be filed
and served at least 75 days before January 31, 2025: that is November 17, 2024. But Defendants served the motion on November
21. Further, Defendants served the motion electronically, which adds two
additional court days, requiring that the motion be served by November 14 (November
17 was a Sunday).
Defendants have no
right for an untimely motion for summary judgment to be heard before trial. And Defendants do not provide another reason
for the continuance.
Accordingly, the
request to continue trial is DENIED.
Conclusion
The Court DENIES motion to continue trial
filed by DefendantsRotisserie Restaurants, Inc dba Tarme
Mediterranean Grill and Pat Sungkamee.