Judge: Steven A. Ellis, Case: 21STCV42224, Date: 2023-11-21 Tentative Ruling

Case Number: 21STCV42224    Hearing Date: November 21, 2023    Dept: 29

TENTATIVE

The Court GRANTS Defendant’s motion to continue trial.

 Background 

This action arises from an alleged fall on a sidewalk on January 6, 2021. On November 16, 2021, Plaintiff Roni S. Shevick (“Plaintiff”) filed a complaint against Defendants City of Long Beach (“Defendant”) and Does 1 to 25, alleging a cause of action for premises liability.

On December 29, 2021, Defendant filed an answer to the complaint.  

On February 16, 2023, the Court entered an order pursuant to the parties’ stipulation which continued trial from May 16, 2023, to January 23, 2024.

On October 5, 2023, Defendant filed and served a motion for summary judgment. The hearing on the motion for summary judgment is set for August 1, 2024.

On October 25, 2023, Defendant filed and served a motion to continue the current trial date and all trial-related dates to a date after the hearing on Defendant’s motion for summary judgment.  Alternatively, Defendant requests that the Court specially set the hearing on its motion for summary judgment ahead of the current January 23, 2024 trial date.

On November 7, Plaintiff filed an opposition, and on November 14, 2023, Defendant filed a reply.

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 Civ. Proc. § 437c. (Wells Fargo Bank v. Superior Court (1988) 206 Cal.App.3d 918, 919.)

Code Civ. Proc. § 128(a)(8) provides that the court has the power “[t]o 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 there has been a “substitution of trial counsel, but only where there is an affirmative showing that the substitution is required in the interests of justice.” (Cal. Rules of Court, Rule 3.1332(c)(4).) Good cause may also exist where 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)(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

Defendant timely filed a motion for summary judgment on October 5, 2023.  (Diao Decl., ¶ 7.)  Back in April 2023, Defendant had reserved a date for a summary judgment hearing on August 1, 2024, the first available date.  (Id., ¶ 9.)

A court may not refuse to hear a summary judgment motion filed within the time limits of Code Civ. Proc. § 437c. (Cole v. Superior Court (2022) 87 Cal.App.5th 84, 88; Sentry Ins. Co. v. Superior Court (1989) 207 Cal.App.3d 526, 529; Wells Fargo Bank v. Superior Court (1988) 206 Cal.App.3d 918, 919.)  The Court does not have the capacity to advance the hearing on the summary judgment to a date prior to trial.  Accordingly, the Court must grant the motion to continue trial.

Plaintiff argues that the Court should deny the motion to continue because she is over the age of 70 and entitled to a preference.  But a party seeking a trial preference must do so by a noticed motion, and Plaintiff has not filed such a motion.

After considering all of the facts submitted by the parties in their declarations and each of the applicable factors set forth in Rule 3.1332 of the California Rules of Court, the Court GRANTS the motion to continue trial.

Conclusion

The Court GRANTS Defendant’s motion to continue trial.

Trial is continued to a date in mid to late September 2024.  The Final Status Conference and all discovery deadlines are reset based on the new trial date.

 
Final Status Conference is continued to 09/09/2024 at 10:00 AM in Department 29 at Spring
Street Courthouse. Non-Jury Trial is continued to 09/23/2024 at 08:30 AM in Department 29 at
Spring Street Courthouse.

Moving party is ordered to give notice.