Judge: Steven A. Ellis, Case: 22STCV28469, Date: 2024-12-05 Tentative Ruling

Case Number: 22STCV28469    Hearing Date: December 5, 2024    Dept: 29

Houston v. Barbeque King
22STCV28469
Defendant’s Motion to Specially Set Motion for Summary Judgment Hearing, or in the alternative, to Continue Trial

Tentative

The motion is granted in part and denied in part.

The request to continue trial is granted.

Background

On August 30, 2022, Plaintiff Audrey Ann Houston (“Plaintiff”) filed her complaint against Barbeque King, an entity form unknown, and Does 1 through 10, for a premise liability cause of action arising from an alleged slip and fall on September 8, 2020.

On July 14, 2023, Plaintiff amended the complaint to name The Original Texas Barbecue King as Doe 1.

On August 11, 2023, LA BBQ King Inc. dba BBQ King (erroneously sued as Barbeque King and as The Original Texas Barbeque King) (“Defendant”) filed an answer and a cross-complaint against Roes 1 through 50.

On October 25, 2024, Defendant filed a motion for summary judgment.  The hearing is scheduled for June 25, 2025.  Trial is set for March 18, 2025.

On October 30, 2024, Defendant filed this motion to continue trial or, in the alternative, to specially set the motion for summary judgment hearing. Plaintiff filed an untimely opposition on November 26, 2024. Defendant filed a reply on November 27.

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

As a threshold matter, the Court exercises its discretion to consider Plaintiff’s untimely opposition to this motion.

Defendant requests that the Court either (1) specially set the motion for summary judgment before the March 18, 2025 trial date, or in the alternative, (2) continue the trial date until after the motion for summary judgment is heard on June 25, 2025.

The Court of Appeal has held that a party who files a motion for summary judgment that is timely under Code of Civil Procedure section 437c has a right to have the motion heard before trial.  (Cole, supra, 87 Cal.App.5th at p. 88; Sentry Ins. Co., supra, 207 Cal.App.3d at p. 529.)  Here, Defendant’s motion was timely filed and served. 

The Court has no available summary judgment hearing dates that are at least 30 days prior to trial.  Accordingly, the Court must, for good cause shown, grant the motion to continue trial.

Conclusion

The Court GRANTS IN PART and DENIES IN PART Defendant’s motion.

The Court DENIES the request to advance the hearing on Defendant’s motion for summary judgment.

The Court GRANTS the request to continue trial.

The Court CONTINUES trial to a date on or after July 29, 2025.  The Final Status Conference and all deadlines are reset based on the new trial date.

Moving Party is ORDERED to give notice.