Judge Steven A. Ellis, Case Number: 21STCV45947, Date: 2023-12-08 Tentative Ruling

Judge: Steven A. Ellis, Case: 21STCV45947, Date: 2023-12-08 Tentative Ruling

Case Number: 21STCV45947 Hearing Date: December 8, 2023 Dept: 29

TENTATIVE

The motion to continue trial is GRANTED.

Background

This arises from a dog bite incident that occurred on December 19, 2019, between Plaintiff James Cody Williams (“Plaintiff”) and Defendants Colloff, Fishman & Britt Casting, Inc, 4322 Wilshire, LLC, Jamison Properties, Inc., Jamison Services, Inc., Anya Colloff, and Does 1 to 100. Plaintiff filed this action on December 16, 2021, asserting causes of action for (1) General Negligence, (2) Premise Liability, and (3) Strict Liability against Defendants.

Plaintiff filed this Motion to Continue Trial on November 15, 2023. Defendants Anya Colloff and Colloff, Fishman & Britt Casting, Inc., (“Defendants”) filed their opposition on November 28, 2023. Plaintiff filed his reply on December 1, 2023.

Trial is set for January 11, 2024.

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).)

Discussion

Plaintiff moves to continue trial, arguing that Defendants have caused discovery delay and prejudiced Plaintiff to properly prepare for trial. (Declaration of Gary Minevich, ¶ 5, 6.) Further, depositions are still currently underway. (Id., ¶ 8.) Plaintiff stated Defendants have failed to produce all discovery items, and that Plaintiff needs more time to depose potential witness and receive crucial video evidence. (Id., ¶ 9, 10.) Plaintiff also asserts Defendants’ counsel has agreed to the continuance. (Id., ¶ 13.)

Defendants argue that Plaintiff has failed to engage in the Court order mandatory settlement conference. (Declaration of Katherine A. Taikian, ¶ 5-7.) Defendants also contend they have provided substantive responses to written discovery and all documents in Defendants’ possession, custody and/or control. (Id., ¶ 11-13.) Defendants state the video evidence is not in Defendants’ possession, that it has been requested, but Defendants are still waiting to receive it. (Id., ¶ 14.) Defendants lastly state Defendant Anya Colloff and Plaintiff are the only persons with personal knowledge of the incident; both have been deposed. (Id., ¶ 15.)

Defendants state the trial has been continued once by stipulation and that Plaintiff has not provided good cause for continuing it again. (Opposition, 5:13-16.)

Plaintiff replies that he had furnished dates for the Mandatory Settlement Conference. (Reply, 2:2-4.) Plaintiff also states other witnesses have been unavailable for deposition, one citing childbirth for the delay. (Reply, 4:3-4.) The video evidence has yet to be attained as well. (Reply, 4:10-13.)

The Court finds that Plaintiff has established good cause for continuing trial as Plaintiff is still waiting on evidence from Defendants, the video. This is in line with California Rules of Court, rule 3.1332(c)(6), in that Plaintiff contends he has not had the requested video made available to him yet despite his efforts to request it. Defendants have acknowledged that the video exists and is outside of their control, but have requested the video such, since the video could be discoverable, and Plaintiff contends it is a vital piece of discovery, Plaintiff has established good cause to continue the trial date. Further, the trial has only been continued once.

This extension would also give the parties the opportunity to participate in the Mandatory Settlement Conference as ordered by this Court on February 24, 2023.

Therefore, the Court GRANTS the motion and continues the trial date for approximately 90 days.

Counsel for all parties are admonished to treat the new trial date as firm. If either party contends that any other party, or any third party witness, is being dilatory with providing testimony, documents, or other information, counsel is advised to serve appropriate formal notices and/or subpoenas and, if needed, file any appropriate motion to compel.

Conclusion

The Court GRANTS the motion to continue trial. Trial is continued to mid April 2024. The Final Status Conference and all deadlines are reset based on the new trial date.

Moving Party is ORDERED to give notice.