Judge: Steven A. Ellis, Case: 22STCV27488, Date: 2024-09-11 Tentative Ruling
Case Number: 22STCV27488 Hearing Date: September 11, 2024 Dept: 29
Morales v. The
Medicine Cabinet, Inc.
22STCV27488
Defendant’s Motion to Continue Trial
Tentative
The motion is denied.
Background
On August 24, 2022, Martina Morales (“Plaintiff”) filed a
complaint against The Medicine Cabinet, Inc. (“Defendant”) and Does 1 through
100 for premises liability, general negligence, and products liability arising
out of fall from a collapsed seat on a motorized shopping cart on September 23,
2020.
On August 11, 2023, Defendant filed
an answer.
On July 10, 2024, Defendant filed a motion for summary
judgment set to be heard on December 10, 2024. Trial is currently set for October
23, 2024.
On July 16,
2024, Defendant filed this motion to continue trial. No opposition has been
filed. This motion was initially scheduled for hearing on August 12. Defendant filed a notice that the hearing on
the motion was reset for September 11.
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
Defendant requests a trial continuance so that its motion for summary judgment can
be heard before trial. Trial is
scheduled to begin on October 23, 2024, and the hearing on the motion for
summary judgment is set for December 10, 2024.
Defendant has a
right to have a timely summary judgment motion heard before trial. (Cole, supra, 87
Cal.App.5th at p. 88; Sentry Ins. Co., supra, 207 Cal.App.3d at p. 529.)
Defendant’s motion was not timely served,
however.
Based on the trial date of October 23, the last day for Defendant’s
motion for summary judgment to be heard under Code of Civil Procedure section
437c, subdivision (a)(3), is September 23.
A summary judgment must be served 75 days before the hearing date, plus
two additional days for electronic service, for a total of 77 days. (Code Civ. Proc., §§ 437c, subd. (a)(2) &
1010.6, subd. (a)(3)(B).) Because Defendant
served the summary judgment motion by electronic service, the last day for the
motion to be served in a manner that is timely under section 437c was July 8,
2024. But Defendant served the motion on
July 10, two days later.
Accordingly, Defendant’s motion for summary judgment is not timely
under section 437c. Although Defendant
has a right to have a timely summary judgment motion heard before trial, there
is no such right for an untimely motion.
Defendant presents no other good cause for the requested
continuance.
The motion to continue trial is denied.
Conclusion
The Court DENIES Defendant’s motion to
continue trial.
Moving Party is ORDERED to give notice.