Judge: Steven A. Ellis, Case: 21STCV23166, Date: 2024-08-26 Tentative Ruling

Case Number: 21STCV23166    Hearing Date: August 26, 2024    Dept: 29

Hererra v. Scott
21STCV23166
Motion to Continue Trial filed by Defendant Kathy Scott.

Tentative

The motion is granted.

Background

On June 22, 2021, Eva Hererra (“Plaintiff”) filed a complaint against Kathy Scott (“Defendant”) for negligence arising out of a dog attack incident on June 24, 2019.

On July 7, 2023, Defendant filed an answer.

On July 29, 2024, Defendant filed this motion to continue trial. No opposition has been filed.

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).)

Discussion

Defendant contends that she has been unable to obtain Plaintiff’s deposition. (Morand Decl., ¶ 2.) Defendant argues Plaintiff’s deposition is necessary to fully evaluate her claims against Defendant. (Id.) Defendant is also interested in pursuing mediation for this matter. (Id., ¶ 5.) In her motion, Defendant contends she has noticed Plaintiff’s deposition multiple times, but it has yet to occur. (Motion, 3:10-16.)

Plaintiff has not filed an opposition to this motion, and was non-responsive to Defendant’s request to meet and confer regarding a trial continuance and discovery. (Id., ¶ 4.)

The request to continue trial is GRANTED for good cause shown

Conclusion

The Court GRANTS the motion to continue trial.

The Court CONTINUEs trial to approximately mid April 2025.  The Final Status Conference and all discovery deadlines are reset based on the new trial date.

Moving Party is ORDERED to give notice.