Judge: Steven A. Ellis, Case: 22STCV26309, Date: 2023-10-25 Tentative Ruling
Case Number: 22STCV26309 Hearing Date: December 18, 2023 Dept: 29
Tentative
The
motion to advance hearing for summary judgment is DENIED.
The
motion to continue trial is GRANTED.
Background
This arises from a trip and fall that
occurred on February 13, 2022.
On August 15,
2022, Plaintiff Deborah Lopez (“Plaintiff”) filed her complaint against Defendants
Forest Lawn Mortuary, and Forest Lawn Memorial-Park
Association
(“Defendants”), asserting causes of action
for (1) Premise Liability and (2) General Negligence.
On October 31, 2023, Defendants filed a motion for
summary judgment, with hearing date set for December 2, 2024, after the current
trial date of February 7, 2024. (Esmailian Decl., ¶ 3.)
On November 17, 2023, Defendants filed this motion to
advance the date for summary judgment or in the alternative, continue the
trial.
Plaintiff has not filed an opposition to the motion.
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).)
“The motion shall be heard no later than 30
days before the date of trial, unless the court for good cause orders
otherwise. The filing of the motion shall not extend the time within which a
party must otherwise file a responsive pleading.” (CCP § 437c(a)(3).)
Discussion
On October 31, 2023, Defendant timely filed and served a
motion for summary judgment, with hearing date set for December 2, 2024, after
the current trial date of February 13, 2024. (Esmailian Decl., ¶ 3.) Defendant
contends discovery is still ongoing in this matter. (Id., ¶ 5.) With the trial date currently set for
February 13, 2024, and in light of the Court’s impacted calendar, the Court
cannot advance the hearing on Defendant’s motion for summary judgment.
Therefore,
the Court DENIES Defendant’s motion to advance the hearing for summary
judgment.
Defendant
contends there is good cause to continue the trial date so the motion for
summary judgment may be heard thirty (30) days before trial. (Motion, 7:5-8.) Defendant
contends there has not been a previous continuance in this matter. (Id.,
7:8-9.) Further, discovery is ongoing, with more written discovery served on
Defendants on September 13, 2023. (Esmailian Decl., ¶ 5.) Defendants contend
Plaintiff is still undergoing treatment, as so more discovery will need to be
conducted. (Id.) Lastly, there is a mediation scheduled for March 28,
2024, again after the trial date. (Id., ¶ 4.)
Plaintiff
has not filed an opposition.
The Court finds that Defendant has established
good cause for continuing the trial.
Defendant has a right to have its motion for summary judgment, timely
filed and served, heard before trial.
Therefore, the Court GRANTS the motion to
continue trial.
Conclusion
The Court DENIES
the motion to advance the hearing for Defendants’ motion for summary judgment.
The Court GRANTS
the motion to continue trial. Trial is continued to early February 2025. The Final Status Conference and all deadlines
are reset based on the new trial date.
Moving Party is
ORDERED to give notice.