Judge: Theresa M. Traber, Case: 19STCV05281, Date: 2023-02-03 Tentative Ruling

Case Number: 19STCV05281    Hearing Date: February 3, 2023    Dept: 47

Tentative Ruling

Judge Theresa M. Traber, Department 47

HEARING DATE:     February 3, 2023       TRIAL DATE: March 28, 2023

CASE:                         Solutech Pharmaceuticals v. Vivera Phamaceuticals, Inc., et al..

CASE NO.:                 20STCV01610 (Consolidated with 19STCV05281)           

MOTION TO CONTINUE TRIAL

MOVING PARTY:               Plaintiff Solutech Pharmaceuticals.

RESPONDING PARTY(S): No response on eCourt as of January 31, 2023

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

            This is a breach of contract and misappropriation of trade secrets action involving multiple consolidated and related actions and cross-actions.

            Plaintiff Solutech Pharmaceuticals moves to continue the trial date and statutory motion and discovery cutoff dates from March 28, 2023 to a date after October 2023.

TENTATIVE RULING:

Plaintiff’s motion to continue trial is GRANTED. The jury trial set for March 28, 2023 is advanced and continued to November 14, 2023 at 10:00 a.m. The March 14, 2023 final status conference is advanced to this date and continued to October 30, 2023 at 9:00 a.m.. All cutoff dates are to be calculated in reference to the new trial date.

DISCUSSION:

            Plaintiff Solutech Pharmaceuticals moves to continue trial after October of 2023 to permit Plaintiff and its counsel to adequately prepare for and be available on the day of trial.

“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).) Therefore, “continuances of trials are disfavored.” (Cal Rules of Court Rule 3.1332(c).) 

            Plaintiff seeks a continuance to a date after October 2023 on the grounds that Plaintiff’s principals are currently incarcerated, thereby hampering meaningful dialogue with them for both discovery and preparation for trial; that Plaintiff’s counsel has been recently hospitalized for serious illness; and that multiple new pleadings have been filed following resolution of an Anti-SLAPP motion. Plaintiff’s counsel states that Solutech’s principals are presently incarcerated in federal prison in Florida. (Declaration of Steven Berkowitz ISO Mot. ¶ 2.) According to Plaintiff, their scheduled release date is in 2024, but Plaintiff states that it is reasonably likely that they will be released sometime this year and placed under house arrest. (Id.) Plaintiff contends that contacting the principals, arranging conferences, passing them documents for review, and the costs and logistical issues associated in arranging depositions or appearances for trial necessitate a continuance. (Id. ¶ 3.) Separately, Plaintiff’s counsel was hospitalized in December due to serious ongoing medical issues resulting in major surgery from which he states he will require additional time to recover. (Id. ¶ 4.)

The unavailability of a party or of trial counsel because of death, illness, or other excusable circumstances is good cause for a continuance. (Cal. Rules of Court 3.1332(c)(2)-(3).) Good cause for a continuance also exists as a result of a party’s “excused inability to obtain essential testimony, documents, or other material evidence despite diligent efforts.” (Rule 3.1332(c)(6).) Further, a “significant, unanticipated change in the status of the case as a result of which the case is not ready for trial” is also good cause for a continuance. (Rule 3.1332(c)(7).) Taken together and accounting for the incarceration of Plaintiff’s principals and the illness of Plaintiff’s counsel, the Court finds that Plaintiff has shown good cause for a continuance.

In addition, in ruling on a motion for continuance of the trial date, other factors include, as relevant to this motion:

·         The proximity of the trial date. Here, the trial date is currently set for March 28, 2022, approximately two months after this motion is scheduled to be heard. 

·       Whether there was any previous continuance, extension of time, or delay of trial due to any party. The trial was previously continued from March 27, 2022 to the current date of March 28, 2023, by the Court on its own motion. 

·       The length of the continuance requested. Approximately eight months. Plaintiff does not identify a specific date requested beyond “after October 2023.”  

·       The availability of alternative means to address the problem that gave rise to the motion or application for a continuance. There is no feasible means to address the problems of the availability of trial counsel and parties.

·       The prejudice that parties or witnesses will suffer as a result of the continuance. There does not appear to be any prejudice that would result from the continuance. 

·       Whether all parties have stipulated to a continuance. Defendants have not stipulated to a continuance, but no opposition has been filed.

·       Whether the interests of justice are best served by a continuance, by the trial of the matter, or by imposing conditions on the continuance. The interests of justice would be served by allowing the parties to properly prepare for trial.

·       Any other fact or circumstance relevant to the fair determination of the motion or application. This action was filed on January 14, 2020 and is therefore just over three years old.

(Cal. Rule of Court 3.1332(d).)  Taken together, the foregoing factors do not weigh against a finding of good cause for continuance of the trial date.

CONCLUSION:

Plaintiff’s motion to continue trial is GRANTED. The jury trial set for March 28, 2023 is advanced and continued to November 14, 2023 at 10:00 a.m. The March 14, 2023 final status conference is advanced to this date and continued to October 30, 2023 at 9:00 a.m.. All cutoff dates are to be calculated in reference to the new trial date.

            Moving Party to give notice.

IT IS SO ORDERED.

Dated: February 3, 2023                                 ___________________________________

                                                                                    Theresa M. Traber

                                                                                    Judge of the Superior Court

            Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept47@lacourt.org by no later than 4:00 p.m. the day before the hearing. All interested parties must be copied on the email. It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.