Judge Steven A. Ellis, Case Number: 21STCV27469, Date: 2023-10-04 Tentative Ruling

Judge: Steven A. Ellis, Case: 21STCV27469, Date: 2023-10-04 Tentative Ruling

Case Number: 21STCV27469 Hearing Date: October 4, 2023 Dept: 29

TENTATIVE

The Court DENIES Defendant’s motion without prejudice.

Background

Plaintiff Francisco Javier Cervantes (“Plaintiff”) filed the complaint in this action on July 27, 2021, against County of Los Angeles, City of Cudahy (“Defendant”), Bill Greene Sports Complex, and Does 1 through 50 for damages and statutory liability. The complaint arises from alleged injuries that Plaintiff sustained on January 12, 2021 when he fell through an unsecured sky light located on the roof of the Bill Greene Sports Complex located at 4835 Clara Street, Cudahy, CA 90201.

Little or nothing happened in the case for more than a year.

In September 2022, Plaintiff served the named defendants. On October 17, 2022, Plaintiff filed a request for dismissal as to Defendant County of Los Angeles. On January 12, 2023, Plaintiff filed an amended complaint. On April 21, 2023, Defendant filed its answer.

On September 6, 2023, Defendant filed and served a motion for an order continuing the current trial date of February 16, 2024 to January 6, 2025, or to a date thereafter that is convenient for the Court and all parties. Plaintiff filed an opposition on September 20, and Defendant filed a reply on September 28.

Legal Standard

A motion for summary judgment must be heard no later than 30 days before the date of trial, unless the court for good cause considers otherwise. (Code Civ. Proc. § 437c(a)(3).) A motion for summary judgment may be made at any time after 60 days have elapsed since the general appearance in the action or proceeding of each party against whom the motion is directed. (Code Civ. Proc. § 437c(a).) A court may not refuse to hear a summary judgment motion filed within the time limits of Code of Civil Procedure section 437c. (Wells Fargo Bank v. Superior Court (1988) 206 Cal.App.3d 918, 919.)

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.) The decision whether to grant a continuance is within the trial court’s discretion and will not be disturbed on appeal absent a clear showing of abused discretion. (Jurado v. Toys “R” Us, Inc. (1993) 12 Cal.App.4th 1615, 1617.)

A party seeking a continuance of the date set for trial, whether contested or uncontested or stipulated by the parties, must make the request for a continuance by a noticed motion or ex parte application, with supporting declarations. (Cal. Rules of Court, Rule 3.1332(b).) The party must make the motion or application as soon as reasonably practical once the necessity for the continuance is discovered. (Ibid.)

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. (Cal. Rules of Court, Rule 3.1332(c).) Good cause may be present where a party has not been unable “to obtain essential testimony, documents, or other material evidence despite diligent efforts” or there has been 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)(6)-(7).)

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).)

Discussion

On August 29, 2023, Defendant reserved the earliest available hearing date for its anticipated motion for summary judgment/summary adjudication. (Robinson Decl., ¶ 13.) That date is November 5, 2024. (Ibid.) Defendant seeks a continuance of the trial date for almost a year, to January 6, 2025, so that the Court may hear Defendant’s motion at least 30 days before trial pursuant to Code of Civil Procedure section 437c, subdivision (a)(3). Defendant also argues that there is a need for significant expert discovery and suggests that a mediation could be worthwhile. (Id., ¶ 17).

Plaintiff opposes the motion, arguing that further delay would prejudice Plaintiff and that Defendant has not proceeded diligently.

Initially, the Court finds that Plaintiff’s citation to First State Ins. Co. v. Superior Court (2000) 79 Cal.App.4th 324 is inapposite. There is no support for Plaintiff’s apparent contention that a defendant has an obligation to reserve a hearing date for a motion for summary judgment as soon as it appears in an action.

Having said that, however, the Court does not find good cause for a continuance on this record at this time. Defendant has not yet filed a motion for summary judgment or summary adjudication, and may never do so; as a result, the case law that addresses the effect of a timely filed summary judgment motion does not apply here. Defendant’s other arguments do not support the requested continuance, as the case does not appear to be particularly complex and trial is scheduled for February 2024, more than four months away.

Of course, if Defendant does in the future timely file a motion for summary judgment or summary adjudication, the case law would appear to require the Court to grant a request for a continuance so that the motion could be heard before trial. But no such motion has been filed at this point.

Accordingly, Defendant’s motion to continue trial is DENIED without prejudice.

Conclusion

The Court DENIES Defendant’s motion without prejudice.

Moving party is ordered to give notice.