Judge: Steven A. Ellis, Case: 22STCV23103, Date: 2023-11-28 Tentative Ruling
Case Number: 22STCV23103 Hearing Date: November 28, 2023 Dept: 29
Tentative
The motion to continue trial is GRANTED.
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Background¿
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Plaintiff Kevin Frudakis (“Plaintiff”) commenced this action on July 18, 2022, against Defendants Ram Singh, Performance Transportation, LLC and Performance Food Group, Inc. (collectively “Defendants”) alleging causes of action for negligence and motor vehicle negligence, arising out of a collision that occurred on September 24, 2020.
On October 30, 2023, Defendants filed the instant motion to continue trial currently scheduled for January 16, 2024, by approximately five months.
On November 15, 2023, Plaintiff filed an opposition. On November 17, 2023, Defendants filed a reply.
Legal Standard¿
Trial dates are firm to ensure prompt disposition of civil cases. (Cal. Rules of Court, rule 3.1332, subd. (a).)¿ Continuances are thus generally disfavored.¿ (See Id., rule 3.1332, subd. (b).)¿ Nevertheless, the trial court has discretion to continue trial dates.¿ (Hernandez v. Superior Court (2004) 115 Cal.App.4th 1242, 1246.)¿ Each request for continuance must be considered on its own merits and is granted upon an affirmative showing of good cause.¿ (Cal. Rules of Court, rule 3.1332, subd. (c); Hernandez, supra, 115 Cal.App.4th at p. 1246.)¿¿¿
Circumstances that may indicate good cause include: (1) the unavailability of an essential lay or expert witness due to death, illness, or other excusable circumstances; (2) the unavailability of a party due to death, illness, or other excusable circumstances; (3) the unavailability of trial counsel due to death, illness, or other excusable circumstances; (4) the substitution of trial counsel 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, subd. (c).)¿¿
The court must also consider such relevant factors as: (1) the proximity of the trial date; (2) whether there was any previous continuance, extension of time, or delay of trial caused by 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.¿ (Id., rule 3.1332, subd. (d).)¿
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Discussion¿
As a preliminary matter, the Court notes Plaintiff’s opposition is late. Nonetheless, the Court will exercise its discretion to consider it.
Defendants request the Court to continue the trial date of January 16, 2024 by approximately five months. Defendants contend a continuance is necessary primarily because there is further discovery that needs to occur despite their diligent efforts to complete discovery. Specifically, in addition to written discovery, Defendants have subpoenaed medical records for each known medical provider. (Declaration of Mitchell C. Motu, ¶ 7.) Also, Defendants have completed the deposition of Plaintiff, a key treating physician, Dr. Frank Lin, and completed an IME with an orthopedic spine expert. (Id.) Still, Defendants must depose no less than six imaging specialists who performed vital diagnostics, four treating physicians, and the PMQ at Plaintiff’s former employer. The list includes: (1) Kevin Carter, M.D.; (2) Adil Mazhar, M.D.; (3) Shmuel Mahgerefteh, M.D.; (4) Mershad Hagigi, M.D.; (5) H. Dambach, M.D.; (6) S. Wang, M.D.; (7) Gerald Alexander, M.D.; (8) Jennifer Greene, DPT; (9) Stepan Kasimian, M.D.; (10) Officer Inouye; (11) LAFD Daniel Netalizio; (12) LAFD Kicker Vencill; and (13) Colt Group (Plaintiff’s employer) PMK. (Id. at ¶ 8.)
In opposition, Plaintiff primarily argues that Defendants’ failure to complete discovery is due to their own delay because nine of the providers Defendants listed were identified in Plaintiff’s responses to written discovery provided to Defendants’ counsel on November 21, 2022. Further, the remaining individuals could have been identified in Plaintiff’s 987 pages of document production also provided on November 21, 2022.
In reply, Defendants reiterate that they have conducted extensive discovery, including that Defendants have: (1) issued 82 subpoenas for medical records; (2) noticed and completed Plaintiff’s deposition in May 2023; (3) noticed and completed Dr. Frank Lin’s deposition in September 2023; (4) noticed Dr. Gerald Alexander’s deposition for October 2023 but rescheduled it due to the birth of counsel’s child; (5) issued two sets of written discovery in November 2022 and November 2023; (6) noticed the PMK depositions for Plaintiff’s employer in November 2023; (7) completed an orthopedic spine IME with Dr. Nitin Bhatia in October 2023; (8) completed a neuropsychological IME with Dr. Ari Kalechstein in November 2023; and (9) noticed a neurological IME with Dr. Michael Gold for December 2023.
The Court has considered all of the arguments and evidence submitted by both sides and find that Defendants have shown good cause for the continuance; they have been reasonably diligent in conducting discovery but, because of the voluminous nature of discovery, require additional time to complete discovery and prepare for trial. Further, Defendants would be prejudiced by a denial because Defendants would be unable to complete an assessment of Plaintiff’s injuries. Plaintiff would not suffer any unfair prejudice from a reasonable continuance. Lastly, there have not been any prior continuances of the trial date.
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Conclusion¿
¿Defendants’ motion to continue trial is GRANTED.
The January 16, 2024 trial date is continued to approximately mid June 2024. The Final Status Conference and all deadlines are reset based on the new trial date.
Final Status Conference is continued to 05/28/2024 at 10:00 AM in Department 29 at Spring
Street Courthouse. Non-Jury Trial is continued to 06/11/2024 at 08:30 AM in Department 29 at
Spring Street Courthouse.
Moving parties are ORDERED to give notice.