Judge Steven A. Ellis, Case Number: 23STCV01972, Date: 2024-04-30 Tentative Ruling

Judge: Steven A. Ellis, Case: 23STCV01972, Date: 2024-04-30 Tentative Ruling

Case Number: 23STCV01972 Hearing Date: April 30, 2024 Dept: 29

Defendant’s Motion to Continue Trial

Tentative

The motion is granted.

Background

On January 27, 2023, Justine Kish (“Plaintiff”) filed a complaint against Aaron Wells Russell (“Defendant”) and Does 1 through 10 for negligence arising out of an automobile accident occurring on October 29, 2021. Defendant filed his answer on September 25, 2023.

On April 3, 2024, Defendant filed this motion to continue trial. Plaintiff filed an opposition on April 17, 2024. Defendant filed a reply on April 23, 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).)

Discussion

Defendant issued a deposition subpoena for production of business records for Ultimate Fighting Championship (“UFC”), Plaintiff’s employer, on September 15, 2023. (Stone Decl., ¶ 9.) After hearing back from UFC, Defendant filed an ex parte application for an Order and Issuance of Commission for Out of State Deposition Subpoena; the ex parte was granted and Defendant provided the order to UFC. (Id., ¶ 12.) Defendant reached out to UFC in March 2024, and UFC objected to providing the subpoenaed records on new grounds. (Id., ¶ 13.) Defendant is now in the process of issuing a new subpoena. (Ibid.)

Defendant contends the UFC records, including Plaintiff’s medical records, are necessary to develop a full medical history and investigate whether the accident caused the injuries claimed by Plaintiff. (Id., ¶¶ 14-17.)

Defense counsel also contends that he is unavailable for the current trial date, as he has a trial in Merced county starting on July 23, 2024; that case has been continued several times and has completed mediation. (Id., ¶ 18.) In this matter, in contrast, there have been no continuances. (Id., ¶ 20.)

The Court has considered all of the facts and circumstances, the arguments of both sides, and the evidence presented. The Court finds good cause exists to continue trial as discovery needs to be completed and Defendant’s counsel is unavailable for the current trial date. Further, there have been no previous continuances in this matter.

Accordingly, the motion to continue trial is GRANTED.

Conclusion

The Court GRANTS Defendant’s Motion to Continue Trial.

The trial date is advanced and continued for approximately six months. The Final Status Conference and all deadlines are reset based on the new trial date.

Moving Party is ORDERED to give notice.