Judge: Steven A. Ellis, Case: 21STCV25460, Date: 2024-03-08 Tentative Ruling

Case Number: 21STCV25460    Hearing Date: March 8, 2024    Dept: 29

Motion to Continue Trial filed by Defendant Ocean Exteriors, Inc.

Tentative

The motion is granted.

Background

On July 12, 2021, Dennis Brown (“Plaintiff”) filed his complaint against Victoria Fusaro, Frank Fusaro, and Does 1 to 25 for General Negligence and Premises Liability causes of action arising from a trip and fall occurring on October 11, 2019.

On June 24, 2022, Defendant Victoria Fusaro filed a cross-complaint against Ocean Exteriors Inc., and Roes 1 through 30 for (1) Equitable Indemnification, (2) Comparative Contribution, Partial Indemnification, (3) Apportionment of Fault, and (4) Declaratory Relief.

On August 16, 2022, Plaintiff filed an amendment to complaint adding Ocean Exteriors, Inc. (“Defendant”) as Doe 1.

On October 11, 2022, Defendant filed a cross-complaint against Daniel Moreno for (1) Equitable Indemnity, (2) Contribution, (3) Declaratory Relief-Indemnity, (4) Declaratory Relief-Duty to Defend, (5) Implied Indemnity, and (6) Comparative Indemnity.

On January 17, 2024, Defendant filed its motion for summary judgment.

On February 9, 2024, Defendant filed a 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).)

Request for Judicial Notice

Defendant’s request for Judicial Notice of Plaintiff’s Complaint is GRANTED.

Discussion

Defendant contends that good cause for continuance exists as Defendant has filed for summary judgment, with the hearing set on the Court’s first available date of January 21, 2025. (Brustkern Decl., ¶¶ 4, 6.) Trial date is currently set for May 2, 2024. (Id., ¶ 4.)

“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.)

Defendant timely filed its motion for summary judgment and is entitled to have the motion heard before trial.

Accordingly, the motion to continue trial is GRANTED.

Conclusion

The Motion to Continue is GRANTED.

The trial date is advanced and continued to early March 2025.  Final Status Conference and all deadlines are reset based on the new trial date.

Moving Party is ORDERED to give notice.