Judge: Steven A. Ellis, Case: 22STCV28469, Date: 2024-02-06 Tentative Ruling
Case Number: 22STCV28469 Hearing Date: February 6, 2024 Dept: 29
Motion to Continue Trial or in the alternative, Motion to
Specially Set Motion for Summary Judgment Hearing filed by
Defendant/Cross-Complainant LA BBQ King INC dba BBQ King
Tentative
The motion is granted in part.
Background
This case arises out of a slip and
fall on September 8, 2020, at a barbecue restaurant. On August 30, 2022,
Plaintiff Audrey Ann Houston (“Plaintiff”) filed the Complaint in this action
asserting a cause of action for premises liability against Defendant Barbeque
King, an entity form unknown, and Does 1 through 10.
On July 14, 2023, Plaintiff amended the
Complaint to name The Original Texas Barbecue King as Doe 1.
On August 11, 2023, Defendant LA BBQ
King INC dba BBQ King (“erroneously sued and served as Barbeque King; Doe 1 The
Original Texas Barbeque King”) (“Defendant”) filed an Answer to the Complaint. On the same day, Defendant also filed a
Cross-Complaint against Roes 1 through 50.
On January 5, 2024, Defendant filed this
motion to continue trial or in the alternative, to specially set the hearing on
its motion for summary judgment. Plaintiff filed her opposition on January 24,
2024, and Defendant filed its reply on January 30.
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 seeks to continue trial or, in the alternative, to advance
the hearing date on its not-yet filed motion for summary judgment (Defendant
has reserved a hearing date of January 28, 2025.)
The request to advance the hearing date is DENIED. The Court does not have dates available for a
hearing on a summary judgment motion prior to the current trial date.
The request to continue trial is GRANTED. Defendant was served in July and filed its
Answer in August. Defendant has not yet
had the opportunity to depose Plaintiff and plans to file a summary judgment
motion after the deposition is taken.
(Cary Decl., ¶ 5.) Defendant
represents that the date reserved for the summary judgment motion was the first
date available through CRS. (Id., ¶ 4.) The
fact that subsequently an earlier summary judgment date became available, and
then was taken by counsel in another matter, is neither unusual nor a basis to deny Defendant’s
motion.
After careful consideration of all of the evidence and argument
submitted, the Court finds good cause and grants the motion to continue trial.
Conclusion
The Motion to
Continue is GRANTED.
Trial is
advanced and continued to a date in early March 2025. The Final Status Conference and all deadlines
are reset based on the new trial date.
Moving Party is
ORDERED to give notice.