Judge: Steven A. Ellis, Case: 23STCV25592, Date: 2025-02-10 Tentative Ruling

Case Number: 23STCV25592    Hearing Date: February 10, 2025    Dept: 29

McElroy v. Villasenor
23STCV25592
Defendant’s Motion to Vacate the Trial Date or, in the alternative, to Continue Trial

Tentative

The motion is denied in part and granted in part.

Background

On October 19, 2023, Nicole McElroy (“Plaintiff”) filed a complaint against Anthony Villasenor (“Defendant”) and Does 1 through 50 for motor vehicle negligence and general negligence arising out of an alleged accident on July 5, 2022.  When the case was filed, the Court assigned a trial date of April 17, 2025.

Defendant was served in October 2024.  On November 12, 2024, Defendant filed an answer.

On January 2, 2025, Defendant filed this motion to vacate trial and final status conference date based on Plaintiff’s failure to comply with California Rules of Court, rule 3.110 or, in the alternative, to continue trial. No opposition has been filed.

Legal Standard

California Rules of Court, rule 3.110 states a “complaint must be served on all named defendants and proofs of service on those defendants must be filed with the court within 60 days after the filing of the complaint. When the complaint is amended to add a defendant, the added defendant must be served and proof of service must be filed within 30 days after the filing of the amended complaint.”

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).)

Discussion

Defendant seeks to vacate or continue the April 17, 2025 trial date.

Defendant was served in October 2024, about a year after the complaint was filed.  With a trial date of April 2025, Defendant states that he does not have time to complete discovery and prepare for trial.

Given the delay in service, Defendant has shown good cause for a trial continuance.  The Court, in its discretion, declines to vacate the trial date and set a Trial Setting Conference, as a trial continuance is sufficient to protect Defendant from any unfair prejudice.

The Court finds good cause to continue trial to early October 2025.  On this record, the Court finds that this should give Defendant more than sufficient time to complete discovery and prepare for trial.  If, however, there are unexpected delays, Defendant may seek a further continuance in the future (either by motion or stipulation) based on a further showing of good cause.

Conclusion

The Court DENIES IN PART and GRANTS IN PART Defendant’s motion to vacate the trial and final status conference dates, or in the alternative, to continue trial.

The Court DENIES Defendant’s request to vacate the trial date.

The Court GRANTS Defendant’s request to continue trial.

Trial is continued to October __, 2025.  The Final Status Conference and all deadlines are reset based on the new trial date.

Moving Party is ORDERED to give notice.