Judge: Steven A. Ellis, Case: 22STCV32810, Date: 2024-02-22 Tentative Ruling

Case Number: 22STCV32810    Hearing Date: February 22, 2024    Dept: 29

Motion to Continue Trial Date, filed by Plaintiff Lisa L. Saver.

Tentative

The motion is granted.

Background

On October 6, 2022, Plaintiff Lisa L. Saver (“Plaintiff”) filed her complaint against Defendants Ezequiel Flores Barreto, Hugo Quijada Aldana, and Does 1 through 10 for damages arising from an auto accident occurring on January 13, 2021.

No Answer has been filed in this case. No proof of service has been filed.

On January 19, 2024, Plaintiff 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).)

Discussion

Plaintiff contends that she tried to serve Defendants at the addresses in the Traffic Collision Report in November 2022, but was unsuccessful. (Korsen Decl., ¶ 6.) Plaintiff’s counsel states that further services efforts at other addresses for Defendant have been unsuccessful. (Id.¸¶ 9.) Counsel believes service through publication is necessary. (Id.¸¶ 10.) Plaintiff requests a continuance to be able to serve Defendants through publication. (Id.¸¶ 11.) There have been no prior continuances in this matter. (Id., ¶ 13.) Trial is set for April 4, 2024. (Id., ¶ 12.)

The Court finds Plaintiff has shown good cause for a continuance to serve Defendants with proof of service. Therefore, Plaintiff’s Motion to Continue is GRANTED.

Conclusion

The Motion to Continue is GRANTED.

The trial date is advanced and continued to February 6, 2025.  Final Status Conference and all deadlines are reset based on the new trial date.

Moving Party is ORDERED to give notice.