Judge: Steven A. Ellis, Case: 22STCV21840, Date: 2024-03-27 Tentative Ruling
Case Number: 22STCV21840 Hearing Date: March 27, 2024 Dept: 29
Motion to Continue Trial filed by Defendant/Cross-Complainant Nicholas T. Poe.
Tentative
The motion is granted.
Background
On July 6, 2024, Erica Frazier (“Plaintiff”) filed a complaint against Nicholas T. Poe (“Defendant”) and Does 1 through 100 for strict liability and negligence causes of action arising from a dog bite incident occurring on April 19, 2022.
On September 26, 2022, Defendant filed his answer and a cross-complaint against Roes 1 through 100 for (1) implied indemnity, (2) contribution, and (3) declaratory relief.
On March 1, 2024, Defendant filed this motion to continue trial. No opposition has been filed.
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 good cause exists to continue trial as Defendant still needs to complete discovery including Plaintiff’s deposition and independent medical examination. (Motion, 7:4-6.) Defendant states this is the second continuance, and is being requested due to delays in the discovery process. (Id., 7:13-15.) Defendant requests the trial date be moved so that Defendant’s motions to compel Plaintiff’s deposition and independent medical examination can be heard before trial. However, the hearing dates reserved by Defendant were vacated as Defendant did not file the moving papers within three days of making the reservation.
Trial is scheduled for May 3, 2024.
No opposition has been filed. Accordingly, it appears that Plaintiff does not contend that she would suffer any unfair or undue prejudice from the requested continuance.
The Court finds Defendant has established good cause to continue trial to allow time for the parties to complete discovery, as Defendant has shown diligence in attempting to take Plaintiff’s deposition twice, is in process of obtain medical records. (Porter Decl., ¶¶ 4, 10, 12.)
Accordingly, the motion to continue trial is GRANTED.
Conclusion
The Motion to Continue Trial is GRANTED.
The trial date is advanced and continued to October 22, 2024. The Final Status Conference and all deadlines are reset based on the new trial date.
Final Status Conference is continued to 10/08/2024 at 10:00 AM in Department 29 at Spring
Street Courthouse. Non-Jury Trial is continued to 10/22/2024 at 08:30 AM in Department 29 at
Spring Street Courthouse.
Moving Party is ORDERED to give notice.