Judge: William A. Crowfoot, Case: 21STCV09345, Date: 2022-08-22 Tentative Ruling

Case Number: 21STCV09345    Hearing Date: August 22, 2022    Dept: 27

SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF LOS ANGELES - CENTRAL DISTRICT

I.         BACKGROUND

On March 10, 2021, Wesley Schwartz (“Plaintiff”) initiated the present action by filing a Complaint against City of Los Angeles (“Defendant”) and Does 1 through 20.  Plaintiff’s Complaint alleges the following causes of action: (1) Public Entity Liability; (2) Dangerous Condition of Public Property; and (3) Negligence.  Plaintiff’s Complaint alleges that, on approximately August 28, 2020, Plaintiff was riding a scooter on Abbot Kinney Boulevard when, without warning, Plaintiff came into contact with a pothole, causing Plaintiff to fly from his scooter and collide into a bicycle rack on a sidewalk.  Plaintiff contends Defendant acted negligently by failing to properly warn or otherwise inform persons of the pothole.

On April 26, 2021, Defendant filed an Answer.

On July 27, 2022, Defendant filed a Motion to Continue Trial and Trial-Related Dates.

On August 9, 2022, Plaintiff filed an Opposition to Defendant’s Motion to Continue Trial and Trial-Related Dates.

On August 15, 2022, Defendant filed a Reply to Plaintiff’s Opposition to Defendant’s Motion to Continue Trial and Trial-Related Dates.

The Court now considers Defendant’s Motion to Continue Trial and Trial-Related Dates.

II.        LEGAL STANDARD

          Trial dates are firm to ensure prompt disposition of civil cases.  (Cal. Rules of Court, Rule 3.1332, subd. (a).)  Continuances are thus generally disfavored.  (Id., Rule 3.1332, subd. (b).)  Nevertheless, the trial court has discretion to continue trial dates.  (Hernandez v. Superior Court (2004) 115 Cal.App.4th 1242, 1246.)  Each request for continuance must be considered on its own merits and is granted upon an affirmative showing of good cause.  (Cal. Rules of Court, Rule 3.1332, subd. (c); Hernandez, supra, 115 Cal.App.4th at 1246.)  Circumstances that may indicate good cause include: (1) the unavailability of an essential lay or expert witness due to death, illness, or other excusable circumstances; (2) the unavailability of a party due to death, illness, or other excusable circumstances; (3) the unavailability of trial counsel due to death, illness, or other excusable circumstances; (4) the substitution of trial counsel 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, subd. (c).)

          The Court must also consider such relevant factors as: (1) the proximity of the trial date; (2) whether there was any previous continuance, extension of time, or delay of trial caused by 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, subd. (d).)

          “On motion of any party, the [C]ourt may grant leave to complete discovery proceedings, or to have a motion concerning discovery heard, closer to the initial trial date, or to reopen discovery after a new trial date has been set.  This motion shall be accompanied by a meet and confer declaration under [Code of Civil Procedure] section 2016.040.”  (Code Civ. Proc., § 2024.050, subd. (a).)  

          In exercising its discretion to grant or deny this motion, the Court shall take into consideration any matter relevant to the leave requested, including, but not limited to the following: (1) the necessity and the reasons for the discovery, (2) the diligence or lack of diligence of the party seeking the discovery or the hearing of a discovery motion, and the reasons that the discovery was not completed or that the discovery motion was not heard earlier, (3) any likelihood that permitting the discovery or hearing the discovery motion will prevent the case from going to trial on the date set, or otherwise interfere with the trial calendar, or result in prejudice to any other party, and (4) the length of time that has elapsed between any date previously set, and the date presently set, for the trial of the action.  (Code Civ. Proc., § 2024.050, subd. (b).)

III.      DISCUSSION

          Defendant moves for an Order continuing the upcoming September 7, 2022 trial date by approximately four (4) months, or one-hundred-and-twenty (120) days, on the ground of Defendant’s “excused inability to obtain essential testimony, documents, or other material evidence despite [Defendant’s] diligent efforts.”  (Cal. Rules of Court, Rule 3.1332, subd. (c)(6).)  Defendant, additionally, moves for an Order continuing all fact and expert discovery cutoff dates and deadlines, as outlined within the Code of Civil Procedure, in accordance with the new trial date. 

          Defendant advances the instant request for a trial continuance, arguing the following discovery items remain outstanding and will not be completed before the impending trial date, despite Defendant’s diligent efforts.  First, Defendant specified that, on approximately May 9, 2022, Plaintiff served upon Defendant a Notice of Videotaped Deposition of Person(s) Most Knowledgeable for Defendant.  (Dixon Decl., ¶ 6, Ex. 1.)  In response to Plaintiff’s Deposition Notice, Defendant identified approximately four (4) individuals which will testify on Defendant’s behalf as Persons Most Knowledgeable.  (Id. ¶ 8.)  However, Defendant “recently learned” that one (1) of the four (4) deponents identified is unavailable to sit for deposition until November of 2022, following the presently scheduled trial date.  (Ibid.)  Defendant contends a continuance is necessary for the purposes of completing the depositions of Defendant’s Persons Most Knowledgeable.  Second, Defendant identifies that, despite serving a Notice of Deposition upon Plaintiff indicating Plaintiff’s deposition would take place on July 20, 2022, Plaintiff failed to appear on July 20, 2022 due to unavailability and has otherwise failed to provide an alternative date for deposition.  (Dixon Decl., ¶ 9.)  Third, Defendant states that, on approximately July 27, 2022, Defendant served two (2) Third-Party Deposition Subpoenas upon Jennifer Schanuth and Eurika Norris, two (2) non-party witnesses who Plaintiff identified as observing the subject accident during discovery proceedings.  (Id. ¶ 10.)  Although Ms. Schanuth’s and Ms. Norris’ depositions were scheduled to take place on August 8, 2022, Plaintiff has served two (2) corresponding Motions to Quash the Deposition Subpoenas served upon Ms. Schanuth and Ms. Norris, which are calendared to come before the Court only five (5) days before the trial date in this action.  (Ibid.)  Accordingly, Defendant’s noticed deposition have been delayed due to Plaintiff’s motion practice, and will not be completed prior to the trial date.  Lastly, Defendant contends it “also needs time to conduct an independent medical examination of Plaintiff.”  (Dixon Decl., ¶ 10.) 

          Plaintiff opposes Defendant’s Motion, arguing Defendant’s inability to complete discovery is due to Defendant’s own lack of diligence in defending this action for the past two (2) years.  (Opp., at pp. 5-7.)  Further, Plaintiff argues the unavailability of Defendant’s Person Most Knowledgeable is of no concern to Plaintiffs, as Plaintiff will proceed by moving in limine to preclude this witness from testifying at trial. (Poulter Decl., ¶9.)  Additionally, Plaintiff contends, in the event this Court grants Defendant’s requested trial continuance, Plaintiff will suffer great prejudice.  (Opp., at p. 9.)  Plaintiff contends, as a result of Defendant’s negligence, he suffered a broken pelvis, has been unable to work, and has been required to procure loans to prevent homelessness.  (Ibid.)  A continuance will only cause the interest on the aforementioned loans to “pile up”, causing Plaintiff severe financial hardship. 

          Following a consideration of the parties’ arguments and submitted evidence, the Court finds Defendant has demonstrated good cause that warrants a brief continuance of the impending September 7, 2022, trial date, pursuant to California Rules of Court, Rule 3.1332, subdivision (c)(6).  (Cal. Rules of Court, Rule 3.1332, subd. (c)(6) [“Circumstances that may indicate good cause include: . . . (6) a party’s excused inability to obtain essential testimony, documents, or other material evidence despite [Defendant’s] diligent efforts.”].)    

          Initially, the Court would like to note that Plaintiff’s Opposition is well taken.  The Court recognizes that Defendant’s inability to complete certain discovery items prior to the impending trial date are attributable to nothing less than Defendant’s own lack of diligence in defending this action.  For example, Defendant requests a trial continuance on the ground Defendant “needs time to conduct an independent medical examination of Plaintiff.”  (Dixon Decl., ¶ 10.)  However, Defendant provides no explanation as to why Plaintiff’s independent medical examination was not completed well in advance of the trial date.  Further, Defendant additionally requests a trial continuance on the ground of Defendant’s inability to complete the third-party depositions of Ms. Schanuth and Ms. Norris, however, Defendant fails to explain why such third-party depositions were not noticed for some time earlier than August 8, 2022 (which is only one month prior to the trial date in this action).  Defendant represents that the two (2) third-party witnesses were identified within Plaintiff’s discovery responses, however Defendant fails to provide any information with respect to when Plaintiff, in fact, identified Ms. Schanuth and Ms. Norris as witnesses.  Further, the Court takes issue with the fact that Defendant did not move to continue the trial date at the earliest possible opportunity, but has waited to make such a motion on the eve of trial (i.e., Defendant’s Motion will be heard only sixteen (16) days before trial). 

          However, despite the Court’s findings above, the Court determines good cause warrants a trial continuance in this matter for the purposes of completing Plaintiff’s deposition.  Defendant has demonstrated that Defendant has been unable to complete Plaintiff’s deposition prior to the trial date, despite Defendant’s diligent efforts in ensuring completion of Plaintiff’s deposition.  Indeed, Defendant served a Deposition Notice upon Plaintiff nearly three (3) months before the trial date in this action, and scheduled Plaintiff’s deposition to take place on July 20, 2022.  (Dixon Decl., ¶ 9.)  Plaintiff failed to appear for deposition on July 20, 2022 and did not provide alternative dates for deposition.  The Court opines that a brief continuance should be permitted to allow Defendant’s completion of Plaintiff’s deposition.

          Further, the Court notes that this will be the first trial continuance in this action.  (Dixon Decl., ¶ 12 [“The Court has not granted a prior trial continuance in this case.”].)

          Lastly, the Court determines that the parties have met and conferred on the issue of reopening and extending discovery deadlines to correspond with the continued trial date, to no avail.  (Dixon Decl., Ex. 5 [meet and confer letter].)  As the fact discovery deadline has lapsed, a continuance of such a deadline will be necessary for the purposes of permitting Defendant’s completion of Plaintiff’s deposition, for which Defendant has demonstrated good cause.  (Code Civ. Proc., § 2024.020 [“Except as otherwise provided in this chapter, any party shall be entitled as a matter of right to complete discovery proceedings on or before the 30th day . . . .”].) 

          Based on the foregoing, the Court finds Defendant has demonstrated good cause warrants a brief trial continuance in this action, pursuant to California Rules of Court, Rule 3.1332, subdivision (c)(6).  (Cal. Rules of Court, Rule 3.1332, subd. (c)(6).)

IV.      CONCLUSION

            Defendant City of Los Angeles’ Motion to Continue Trial and Trial-Related Dates is GRANTED. The trial date is continued from September 7, 2022 to December 6, 2022, at 8:30 a.m., and trial date related discovery and motions deadlines will be related to that date.  The Final Status conference is scheduled for November 22, 2022, at 10:00 a.m. 

Moving party to give notice. 

            Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court’s website at www.lacourt.org.  Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter.  Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue.  If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.