Judge Steven A. Ellis, Case Number: 22STCV35872, Date: 2023-11-22 Tentative Ruling

Judge: Steven A. Ellis, Case: 22STCV35872, Date: 2023-11-22 Tentative Ruling

Case Number: 22STCV35872 Hearing Date: February 22, 2024 Dept: 29

Motion to Continue Trial Date, filed by Defendants Pacific Steel Group and Hensel Phelps Construction Co.

Tentative

The motion is granted.

Background

Plaintiff Kenneth Willoughby (“Plaintiff”) alleges that he was injured in a workplace accident on February 18, 2022, at a construction project at Belvedere Middle School on Record Avenue in Los Angeles.

Plaintiff filed the Complaint in this action on November 14, 2022. In the Complaint, Plaintiff asserts causes of action for negligence and premises liability against Defendants Hensel Phelps Development, L.L.C.; PSG Construction, LLC; and Does 1 through 50.

Subsequently: (1) Plaintiff amended his complaint to name Pacific Steel Group (“PSG”) as Doe 1; (2) Plaintiff amended his complaint to name Hensel Phelps Construction Co. (“HP”) as Doe 2; and (3) the Court, at Plaintiff’s request, dismissed without prejudice all claims against the original named defendants, Hensel Phelps Development, L.L.C. and PSG Construction, LLC.

PSG and HP filed Answers to the Complaint in February and March 2023.

On September 5, 2023, HP filed a motion for summary judgment, or in the alternative for summary adjudication. The Court heard argument on November 22, 2023, took the motion under submission, and issued a ruling denying the motion on January 29, 2024..

On January 25, 2024, PSG and HP (collectively “Defendants”) filed this motion to continue trial. Plaintiff filed his opposition on February 7, 2024. Defendants filed their reply on February 14, 2024.

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

Defendants PSG and HP move to continue trial. PSG timely filed a motion for summary judgment on January 25, 2024, with the hearing set for June 13, 2024. (Weiss Decl., ¶¶ 5, 6.) That is one month after the current trial date of May 13. In addition, both Defendants have been, since late September 2023, seeking out-of-state medical and employment records of Plaintiff through subpoenas, but the records have not yet been received. (Id., ¶¶ 7-15.) Defendants request a new trial date on or after August 19, 2024.

Plaintiff opposes the continuance, arguing that Defendants have not been diligent in seeking the medical and employment records and that rather than continue trial, the Court should advance the hearing date on PSG’s summary judgment motion.

After carefully considering the evidence and argument presented by both sides, the Court GRANTS the motion. The Court does not have summary judgment hearing dates available prior to trial, and PSG is entitled to have a hearing on its timely filed summary judgment motion in advance of trial.

Conclusion

The Motion to Continue is GRANTED.

The trial date is advanced and continued to a date on or after August 19, 2024. The Final Status Conference and all deadlines are reset based on the new trial date.

Moving Party is ORDERED to give notice.