Judge Steven A. Ellis, Case Number: 22STCV25041, Date: 2024-02-29 Tentative Ruling

Judge: Steven A. Ellis, Case: 22STCV25041, Date: 2024-02-29 Tentative Ruling

Case Number: 22STCV25041 Hearing Date: February 29, 2024 Dept: 29

Motion to Continue Trial Date, filed by Defendants Costco Wholesale Corporation and Thad Kleszcz.

Tentative

The motion is granted.

Background

On August 3. 2022, Plaintiff Cecilia Lopez (“Plaintiff”) filed her complaint against Costco Wholesale Corporation (“Costco”), Thad Kleszcz (“Kleszcz”), Regina Smet, OD (“Smet”), and Does 1 through 50, asserting causes of action for general negligence and premises liability arising out of an alleged a slip and fall on August 27, 2020.

On August 23, 2022, Defendants Kleszcz and Smet filed a demurrer to the complaint. The Court overruled the demurrer on January 24, 2023.

On January 18, 2024, Defendants Costco and Kleszcz (collectively “Defendants”) filed a motion for summary judgment. The motion is set for hearing on April 15, 2024.

On February 27, 2024, Defendant Smet filed an answer to the complaint.

Meanwhile, on January 25, 2024, Defendants 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).)

“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

Defendant contends that there is good cause for a continuance of trial as Defendants timely filed a motion for summary judgment that is set for hearing on April 15, 2024. (Egan Decl., ¶¶ 4 & 5.) Trial date is currently set for May 2, 2024. (Id., ¶ 3.) No opposition has been filed.

The Court finds Defendant has shown good cause for a brief continuance. Accordingly, Defendant’s Motion to Continue is GRANTED.

Conclusion

The Court GRANTS Defendants’ Motion to Continue Trial.

The trial date is advanced and continued to mid June 2024. The Final Status Conference and all deadlines are reset based on the new trial date.

Moving Party is ORDERED to give notice.