Judge: Steven A. Ellis, Case: 21STCV39586, Date: 2024-05-31 Tentative Ruling

Case Number: 21STCV39586    Hearing Date: May 31, 2024    Dept: 29

Motion to Continue Trial filed by Plaintiff Carlos Avalos

Tentative

The motion is granted.

Background

On October 26, 2021, Carlos Avalos, individually and as successor-in-interest to decedent Alonso Avalos, (“Plaintiff”) filed a complaint against Jose Mier, Premier Liquor, Maria De Jesus Montiel, and Does 1 to 100 for (1) survival, (2) wrongful death (assault/battery), and (3) wrongful death (negligence) arising out of Defendant Mier hitting decedent Alonso Avalo with his car. On June 27, 2022, Plaintiff filed the First Amended Complaint against the same defendants for the same causes of action.

On May 1, 2024, Plaintiff filed the 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).)

“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

Plaintiff moves for a trial continuance. Plaintiff states there is still pending discovery needing including the deposition of Defendant Mier. Plaintiff highlights that Defendant Mier joined this action on July 31, 2023, and that his counsel has also requested a second session of the deposition of Plaintiff. (Boyadzhyan Decl., ¶2, 6.) Plaintiff also needs to reissue subpoenas related to the criminal case of Defendant Mier. (Id., ¶ 5.) Lastly, Plaintiff’s counsel contends he has a long cause case set to begin on July 9, 2024, which was filed in 2017.  (Id., ¶ 7.)

Trial is currently set for July 8, 2024.

No opposition as been filed.

The Court finds that Plaintiff has shown good cause for a continuance.  The motion is granted.

Conclusion

The Court GRANTS Plaintiff’s motion to continue trial.

The Court advances and continues the trial date to a date in early November 2024.  The Final Status Conference and all deadlines are reset based on the new trial date.