Judge: Steven A. Ellis, Case: 23STCV30358, Date: 2025-05-29 Tentative Ruling

Case Number: 23STCV30358    Hearing Date: May 29, 2025    Dept: 29

Uwanawich v. Trester
23STCV30358
Motion to Continue Trial filed by Plaintiff Miller L. Uwanawich.

Tentative

The motion is denied.

Background

On December 13, 2023, Miller L. Uwanawich (“Plaintiff”) filed a complaint against Lucas Wolf Trester, Fredric Trester, and Does 1 through 100 for (1) negligence, (2) negligence per se, and (3) statutory liability arising out of a vehicle accident occurring on November 28, 2022, at or near the intersection Pico Boulevard and La Brea Avenue in Los Angeles.

On January 4, 2024, the Court, at the request of Plaintiff, dismissed Defendant Fredric Trester.

On January 22, 2024, Lucas Wolf Trester (“Defendant”) filed an answer.

On February 7, 2024, Plaintiff substituted in new counsel.

When the complaint was filed, the Court assigned a trial date of June 11, 2025.

On May 6, 2025, Plaintiff filed this motion to continue trial.  Defendant filed an opposition on May 15, and Plaintiff filed a reply on May 21.

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).)

Discussion

Plaintiff moves to continue trial. 

As a threshold matter, the declarations of Plaintiff’s counsel are not signed under penalty of perjury, and the notice of motion and motion and the memorandum are not signed at all.  The Court could deny the motion on those grounds, but the Court exercises its discretion to consider the merits.

Although this case has been at issue for more than 16 months, Plaintiff’s counsel states (without explanation) that Plaintiff “has not yet had the opportunity to depose Defendant or any of its representatives or witnesses.”  (Yaghoobian Decl., ¶ 6(a).)  Plaintiff also states that counsel has other matters set for trial on June 9 (in San Bernardino County) and on June 13 (in Riverside County).  (Id., ¶ 6(b).)

The failure to complete (or conduct) discovery is not, on this record, good cause for a trial continuance.

The potential trial conflicts are not, at this time, good cause to continue trial.  Of course, no one can be in two places at once, and so if counsel is actually engaged on June 11, the trial in this matter may need to trail or be continued.

In connection with the reply, Plaintiff offers a second declaration of counsel (again not signed under penalty of perjury) in which counsel identifies health issues in March 2025 (before the motion was filed) and staffing shortages at the firm.  The Court exercises its discretion to decline to consider this new evidence, which could have been and should have been included in the moving papers.  A party filing a motion cannot wait for the reply to submit material evidence in support of the motion.

The motion is denied.

Conclusion

The Court DENIES the motion to continue trial filed by Plaintiff Miller Uwanawich.

Moving Party is ORDERED to give notice.