Judge: Steven A. Ellis, Case: 22STCV15112, Date: 2024-09-19 Tentative Ruling
Case Number: 22STCV15112 Hearing Date: September 19, 2024 Dept: 29
Councilman v.
Akidi
22STCV15112
Motion to Continue Trial filed by Defendant Kylie Zhou.
Tentative
The motion is denied.
Background
On May 6, 2022,
Michael John Councilman (“Plaintiff”) filed a complaint against Havenly Homes
Foundation, Anthony Akidi (“Akidi”), and Does 1 through 50 for negligence,
premises liability, and negligent infliction of emotional distress arising out
of an incident on October 27, 2021, in which Plaintiff alleges that he was
attacked on premises owned or operated by defendants.
On April 18,
2023, Plaintiff amended the complaint to name Havenly Homes, LLC (“Havenly”) as
Doe 1.
On August 18,
2023, Plaintiff filed a First Amended Complaint (“FAC”) against Havenly Homes
Foundation, Akidi, and Does 1 through 50 for negligence and premises liability.
On September 19 and
28, 2023, Akidi and Havenly filed answers.
On October 11,
2023, Plaintiff amended the complaint to name Liping Ding Li and Kaili Zhou
(“Zhou”) as Does 2 and 3.
On December 13,
2023, Zhou filed an answer and cross-complaint against Akidi and Havenly Homes
Foundation.
On August 23,
2024, Zhou filed this motion to continue trial. Plaintiff filed an opposition
on September 5, and Zhou filed a reply on September 12.
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
Zhou seeks a trial continuance based on the
need to complete discovery.
The Court finds Zhou has not established the
good cause for a continuance. Zhou appeared
in the case in December 2023, and although Zhou now asserts that much discovery
remains to be done, there is no showing of diligence by Zhou (or the other
parties) over the past nine months.
The voluntary substitution of counsel by Zhou
in June 2024 is not good cause for a trial continuance.
The Court notes that trial is set for
December 9; as of the date that Zhou filed this motion, the deadline for fact
discovery the parties still had more than 60 days to complete discovery.
The potential that Zhou might at some point
in the future seek to file a motion for summary judgment is not, without more,
good cause for a continuance of trial.
Accordingly, Zhou’s motion to continue trial
is DENIED.
Conclusion
The Court DENIES the
motion to continue trial.
Moving Party is ORDERED to give notice.