Judge Theresa M. Traber, Case Number: 22STCV32478, Date: 2024-02-20 Tentative Ruling

Judge: Theresa M. Traber, Case: 22STCV32478, Date: 2024-02-20 Tentative Ruling

Case Number: 22STCV32478 Hearing Date: February 20, 2024 Dept: 47

Tentative Ruling

Judge Theresa M. Traber, Department 47

HEARING DATE: February 20, 2024 TRIAL DATE: April 16, 2024

CASE: Ken Houang et al. v. Rochelle H. Sterling, individually and as trustee of the Sterling Family Trust, et al.

CASE NO.: 22STCV32478

MOTION TO CONTINUE TRIAL AND ALL RELATED DATES

MOVING PARTY: Defendants Rochelle H. Sterling, Individually and as trustee of the Sterling Family Trust, and Beverly Hills Property LLC

RESPONDING PARTY(S): Plaintiffs Ken Houang, individually, and Shelly Houang, individually and as Guardian ad Litem for Liam Kenneth Houang.

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

This is a habitability action that was filed on October 4, 2022. Plaintiffs allege that Defendants failed to maintain the rental unit in which Plaintiffs resided and failed to correct numerous habitability issues which resulted.

Defendants move to continue trial and all related dates.

TENTATIVE RULING:

Defendants’ Motion to Continue Trial and all Related Dates is GRANTED. The jury trial set for April 16, 2024 is advanced to this date and continued to August 14, 2024 at 10:00 AM. The April 3, 2024 Final Status Conference is advanced to this date and continued to August 1, 2024 at 9:00 AM. All cutoff dates are to be calculated in reference to the new trial date.

DISCUSSION:

Defendants move to continue trial and accompanying dates for 120 days.

Notice of Motion

Defendants’ motion was served by email on January 31, 2024, for a hearing date of February 20, 2024. Code of Civil Procedure section 1005(b) requires that all motions be served no less than 16 court days before the date the motion is scheduled to be heard. Service by email requires an additional two court days’ notice. (Code Civ. Proc. § 1010.6.) Thus, the deadline to serve this motion by email was January 23, 2024.

Plaintiffs object to this motion as not timely served and request that the Court deny the motion in its entirety on that basis. However, Plaintiffs themselves failed to give adequate notice of their opposition, as Code of Civil Procedure section 1005(b) also requires that any opposition be served and filed no less than nine court days before the hearing. For a February 20, 2024 hearing, the last day an opposition could be timely served was February 5, 2024. Plaintiffs’ opposition was served and filed on February 6, 2024, one day late. Thus, if the Court were to strictly apply this code section, it would be forced to disregard Plaintiffs’ opposition. Further, Plaintiffs have shown no prejudice from the late service of this motion that would require rejection of the motion outright. The Court will therefore overlook the issues with service and consider both the motion and its opposition on the merits.

Analysis

Defendants move to continue trial and accompanying dates for 120 days.

“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).)

Defendants seek a four-month continuance of the trial currently set for April 16, 2024, and the Final Status Conference set for April 3, 2024 on the grounds that Defendants have been unable to complete discovery. Specifically, Defendants contend that documents and testimony produced by Plaintiffs in January of this year revealed that the Plaintiffs have moved to Minnesota, where they received treatment from local healthcare providers whose records have not yet been produced. (Declaration of Paul Burleigh ISO Mot. ¶¶ 21-22.) Defendants also state that they were forced to reschedule the deposition of Plaintiff Shelly Houang, originally set for January 5, 2024, because of Plaintiffs’ production of 5,000 pages of documents and extensive video and photographic evidence in an un-indexed, “document dump” format. (Id. ¶¶ 13-19.) Defendants’ counsel anticipates that discovery of the Minnesota medical records will be completed by no earlier than March of this year. (¶ 23.)

Plaintiffs, in opposition, argue a continuance is not justified because Defendants have not been diligent in pursuing discovery in this matter. Plaintiffs merely assert that Defendants have not been diligent in pursuing discovery in this matter since Defendants have been represented by counsel since December 27, 2022. Plaintiffs do not attempt to explain the late production of un-indexed documents, nor do they offer any evidence that they would be prejudiced by a trial continuance of 120 days.

California Rule of Court 3.1332(c) sets forth examples of circumstances that constitute good cause. “A party's excused inability to obtain essential testimony, documents, or other material evidence despite diligent efforts” is expressly identified as good cause for a continuance. (Id. subd. (6).) The thrust of Defendants’ motion is precisely that: Defendants have not been able to obtain material evidence because of last-minute production by Plaintiffs which revealed the existence of that evidence.

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 April 16, 2024, 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. This is the first trial continuance at the instance of any party.

· The length of the continuance requested. Four months

· 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 problem of inability to procure evidence at this juncture.

· 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. Plaintiffs have not stipulated to a continuance.

· 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 complete discovery and procure basic evidence for use at trial.

· Any other fact or circumstance relevant to the fair determination of the motion or application. This action was filed on October 4, 2022, and is therefore less than two years old.

CONCLUSION:

Accordingly, Defendants’ Motion to Continue Trial and all Related Dates is GRANTED. The jury trial set for April 16, 2024, is advanced to this date and continued to August 13, 2024 at 10:00 AM. The April 3, 2024 Final Status Conference is advanced to this date and continued to July 29, 2024 at 9:00 AM. All cutoff dates are to be calculated in reference to the new trial date.

Moving Parties to give notice.

IT IS SO ORDERED.

Dated: February 20, 2024 ___________________________________

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.