Judge: Steven A. Ellis, Case: 22STCV03446, Date: 2024-01-23 Tentative Ruling
Case Number: 22STCV03446 Hearing Date: January 23, 2024 Dept: 29
Motion to Continue filed by Defendant MV Transportation,
Inc.
Tentative
The motion is denied.
Background
On January 27, 2022, Plaintiff Jeanett
Gertrudiz (“Plaintiff”) filed a complaint against Defendant MV Transportation,
Inc. (“Defendant”), and Does 1 to 50, for Damages from an injury sustained
while aboard Defendant’s bus on January 31, 2020. Defendant filed its answer on April 7, 2022.
On December 20, 2023, Defendant filed
this motion to continue trial. Plaintiff filed her opposition on January 10,
2024. Defendant filed its reply on January 16, 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
Defendant contends that good cause for continuance exists as Plaintiff
was recently involved in a second car accident and sustained personal injury on
either May 23 or May 27, 2023. (See Odabachian
Decl., ¶ 3; Reply, Exh. A.) (The discrepancy of four days is not material.)
Defendant served written discovery on Plaintiff regarding this accident
on November 30. (Odabachian Decl., ¶ 3) Given
the current trial date of January 31, 2024, that was about as late as discovery
could be propounded prior to the cutoff.
Defendant requests a trial continuance of seven months to August 2024. (Id., ¶ 7.)
Trials may be continued, in the Court’s discretion, when there is an
excused failure to obtain essential or material discovery despite diligent
efforts, or when there is a significant and unanticipated change in the status
of the case. (Cal. Rules of Court, rule
3.1332(c)(6).) The accident in May 2023
could provide a basis for a continuance, but one essential piece is missing
from the moving papers: a clear statement regarding when Defendant or Defendant’s
counsel first learned of the accident.
Counsel states that this occurred “recently” (Odabachian Decl., ¶ 3), but
that is not helpful, as counsel surely knows the date upon which the
information was obtained and could have – and should have – stated that date
(or approximate date) in his declaration. Was “recently” in November 2023? Or in June 2023? The Court does not know, and that is because
counsel chose not to provide this information.
If counsel obtained this information months ago, in (for example) the summer
of 2023 – as well may be the case (see Evid. Code § 412) – then there has been
no showing of diligence, no showing of why the discovery was not propounded
months earlier than it was, no showing of sudden or unanticipated change in the
status of the case, and, in sum, no showing of good cause.
The moving party bears the burden of presenting evidence in support of
its request for relief. Here, Defendant
has not done so. Accordingly, in the
absence of sufficient evidence and a sufficient showing of good cause by the
moving party, the motion is DENIED.
Conclusion
The Motion to
Continue is DENIED.
Moving Party is
ORDERED to give notice.