Judge Theresa M. Traber, Case 21STCV35300 2023-04-10 Tentative Ruling

Judge: Theresa M. Traber, Case: 21STCV35300, Date: 2023-04-10 Tentative Ruling

Case Number: 21STCV35300 Hearing Date: April 10, 2023 Dept: 47

Tentative Ruling

Judge Theresa M. Traber, Department 47

HEARING DATE: April 10, 2023 TRIAL DATE: September 19, 2023

CASE: Timothy Joseph Toups v. 3M Company, et al.

CASE NO.: 21STCV35300

MOTION TO CONTINUE TRIAL

MOVING PARTY: Defendant Masterchem Industries LLC

RESPONDING PARTY(S): None

CASE HISTORY:

09/24/21: Complaint filed.
10/20/21: The Quikrete Companies, LLC substituted in as Doe 1.
11/29/21: Dismissal entered as to Quikrete International, Inc.
01/17/23: First Amended Complaint filed.

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

This is toxic tort case. Plaintiff alleges that he was exposed to various toxic chemicals while working in construction.

Defendant Masterchem Industries LLC moves for an order continuing the current trial date of September 19, 2023, and all related dates.

TENTATIVE RULING:

Defendant’s motion to continue trial is GRANTED.

The Final Status Conference scheduled for 09/06/2023 is continued to 10/03/2023 at 09:00 AM in Department 47 at Stanley Mosk Courthouse.

Jury Trial scheduled for 09/19/2023 is continued to 10/17/2023 at 10:00 AM in Department 47 at Stanley Mosk Courthouse. All discovery and motion cutoff dates shall be tied to the new trial date.

DISCUSSION:

“Although continuances of trials are disfavored, each request for a continuance must be considered on its own merits. The court may grant a continuance only on an affirmative showing of good cause requiring the continuance.” (Cal. Rules of Court, rule 3.1332(c).)

“Circumstances that may indicate good cause [for granting a motion to continue] include: ¶ … ¶ (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; ¶ … ¶ …¶ …¶ (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).) Other factors to be considered include “[w]hether trial counsel is engaged in another trial ….” (Cal. Rules of Court, rule 3.1332(d)(8).)

Here, Defendant Masterchem Industries LLC (“Defendant”) moves to continue trial and all related dates for the following reasons.

Defense counsel testifies that he will be unavailable for trial on September 19, 2023, because he has trial in a federal action on September 13, 2023, and there is no possibility of a continuance of that trial per the judge. (Declaration of Robert Kum, filed on March 14, 2023 (“Kum Decl.”), ¶ 11.)

Defense counsel also states that there has been significant unanticipated change in the status of the case for the following reasons. Decedent Timothy Toups (“Mr. Toups”) filed this action on September 24, 2021, alleging causes of action for (1) negligence, (2) strict liability – warning defect, (3) strict liability – design defect, (4) fraudulent concealment, and (5) breach of implied warranties. (Declaration of Robert Kum, filed on March 14, 2023 (“Kum Decl.”), ¶ 2.) At the Status Conference on April 13, 2022, the Court set a trial date of September 18, 2023, and on its own motion on August 16, 2022, continued trial to September 19, 2023. (Kum Decl., ¶ 3.) On September 8, 2022, plaintiffs’ counsel served a notice (1) informing the parties that Mr. Toups passed away on July 31, 2022, and (2) requesting that discovery be stayed until a personal representative for Mr. Toups’s estate could be appointed and an amended complaint filed. (Kum Decl., ¶ 4.) In accordance with Plaintiffs’ counsel request in the Notice of Death, no discovery was conducted after the filing and service of the notice pending the filing of the FAC because, as stated in that notice, no one had legal authority to respond to any discovery without an existing plaintiff. (Kum Decl., ¶ 8.) On January 11, 2023, plaintiffs’ counsel filed an ex parte application for leave to appoint Mr. Toups’s daughter Breanna Patton as successor in interest, and the Court granted the request at the hearing on January 13, 2023. (Kum Decl., ¶ 4.) Also at that hearing, the Court denied Defendant’s oral motion to continue trial, but without prejudice to a future noticed request to continue trial. (Kum Decl., ¶ 4; see Cal. Rules of Court, rule 3.1332(b) [“A party seeking a continuance of the date set for trial, whether contested or uncontested or stipulated to by the parties, must make the request for a continuance by a noticed [not oral] motion or an ex parte application …, with supporting declarations”].) On January 17, 2023, plaintiffs filed the First Amended Complaint (“FAC”) for survival and wrongful death, alleging the same causes of action asserted in the original Complaint. (Kum Decl., ¶ 5.) Although the decedent had been deposed while alive, no third-party witnesses, any of his treating physicians, or heirs were deposed, and no discovery was conducted during the six months between his death and the filing of the FAC. (Kum Decl., ¶ 9.) Therefore, discovery is still ongoing.

On February 21, 2023, defense counsel sent a letter to all parties advising them of his trial conflict and notifying them of Defendant’s intent to seek a trial continuance, but no one replied or indicated that they oppose the continuance. (Kum Decl., ¶ 12.) On April 3, 2023, Defendant filed a notice of non-opposition to the motion.

The Court finds there is good cause to grant the continuance in light of the facts stated in defense counsel’s declaration, other parties’ failure to file an opposition, the FAC was filed recently in January 2023, and this is the first continuance based on a party’s noticed motion.

Accordingly, the motion to continue trial is GRANTED.

The Final Status Conference scheduled for 09/06/2023 is continued to 10/03/2023 at 09:00 AM in Department 47 at Stanley Mosk Courthouse.

Jury Trial scheduled for 09/19/2023 is continued to 10/17/2023 at 10:00 AM in Department 47 at Stanley Mosk Courthouse. All discovery and motion cutoff dates shall be tied to the new trial date.

Defendant to give notice, unless waived.

IT IS SO ORDERED.

Dated: April 10, 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.