Judge: Steven A. Ellis, Case: 22STCV04265, Date: 2024-11-12 Tentative Ruling

Case Number: 22STCV04265    Hearing Date: November 12, 2024    Dept: 29

Mojiri v. Ariyoshi
22STCV04265
Defendant’s Motion to Continue Trial

Tentative

Motion is granted.

Background

This case arises from an incident in which Nazlie Mojiri (“Plaintiff”) was allegedly assaulted by Princella Lewis on August 20, 2021, at Ariyoshi, a sushi restaurant.

On February 2, 2022, Plaintiff filed a complaint against Defendants Ariyoshi, a business entity unknown; R.V.M. LLC; Jane Doe, an individual; and Does 1 through 50, inclusive, alleging causes of action for: (1) Assault; (2) Battery; (3) Negligence; and (4) Premises Liability.

On March 14, 2022, Sushi Ariyoshi Japanese Restaurant, erroneously sued as Ariyoshi (“Restaurant”) filed an answer to the complaint and a cross-complaint against Roes 1 through 20.

On October 14, 2022, RVM filed an answer to the complaint.

On June 8, 2023, Plaintiff amended the complaint to name Princella Lewis (“Lewis”) as Jane Doe.

On June 30, 2023, Restaurant’s motion for summary judgment was denied.

On July 21, 2023, RVM’s answer to the complaint was stricken, with leave to amend.

On September 6, 2023, Lewis filed an answer to the complaint.  On December 7, 2023, Lewis filed an amended answer.

On January 8, 2024, the Court granted the application of Restaurant for a good faith settlement determination under Code of Civil Procedure section 877.6.  On April 5, 2024, Plaintiff filed a request for dismissal of Restaurant.

On August 22, 2024, RVM filed a motion for summary judgment.  The motion is set for hearing on May 15, 2025.

On October 8, 2024, the Court denied RVM’s prior motion to continue trial.  The denial was based on procedural reasons and was without prejudice.

On October 16, 2024, RVM filed this motion to continue trial. No opposition has been filed.

Trial is currently set for December 9, 2024.

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

RVM moves to continue trial so that its motion for summary judgment can be heard before trial.  The motion for summary judgment is set to be heard on May 15, 2025.

RVM has a right to have its timely filed summary judgment motion heard before trial.  (Cole, supra, 87 Cal.App.5th at p. 88; Sentry Ins. Co., supra, 207 Cal.App.3d at p. 529.)  Accordingly, the motion is granted.

Conclusion

The Court GRANTS RVM’s motion to continue trial.

The Court CONTINUES trial to a date on or after June 23, 2025.  The Final Status Conference and all deadlines are reset based on the new trial date.

Moving Party is ORDERED to give notice.