Judge: Yolanda Orozco, Case: 21STCV27289, Date: 2023-03-15 Tentative Ruling

Case Number: 21STCV27289    Hearing Date: March 15, 2023    Dept: 31

MOTION TO cONTINUE TRIAL 

TENTATIVE RULING 

Defendants’ Motion to Continue Trial is GRANTED. Trial is continued to December 11, 2023. FSC is continued to November 29, 2023. Post Mediation Conference is set on September 7, 2023. 

Background 

This is a professional malpractice action.  

On July 26, 2020, Plaintiffs Kenneth McBride and Waiting for My Ship to Come In (collectively “Plaintiffs”) filed suit against defendants Cohen Pagano Accountancy, Inc., Stanley M. Ingel, Laurand Management Co., Inc., Andrea M. Link, and Does 1 to 25. Plaintiffs’ complaint asserts the following a cause of action for accounting malpractice. 

On February 10, 2023, Defendants Cohen Pagano Accountancy Inc. and Stanley M. Ingel (collectively “Defendants”) filed a Motion to Continue Trial. 

The Plaintiffs filed a Conditional Opposition on March 02, 2023. 

The Defendants filed a reply on March 08, 2023. 

Legal Standard 

“To ensure the prompt disposition of civil cases, the dates assigned for a trial are firm.” (Cal. Rules of Court, rule¿3.1332 subd. (a).) “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).) California Rules of Court rule 3.1332, subdivision (c) states what circumstance may indicate good cause and subdivision (d) states what other factors are considered in granting the continuance.¿¿¿¿¿¿ 

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The party seeking a continuance of the date set for trial, “must make the request for a continuance by a noticed motion or an ex parte application . . .with supporting declarations … [and] as soon as reasonably practical once the necessity for the continuance is discovered.” (Cal. Rules of Court, rule 3.1332 subd. (b).)¿¿ 

Discussion 

Defendants Cohen Pagano Accountancy Inc. and Stanley M. Ingel (collectively “Defendants”) move for an Order to continue the current trial date of October 23, 2023, and all discovery and procedural deadlines, to December 01, 2023, or any date soon after. 

Plaintiff originally sought a trial continuance as it was unable to obtain IRS copies of their tax returns in order to calculate damages. Defense counsel asserts it informed Plaintiff on October 2 and 4, 2022, that defense counsel and Defendants were not available for a trial date in July 2023. (Milanes Decl. ¶ 8, Ex. D and E.) Defendants instead proposed a trial date for August of 2023. On October 07, 2022, the Court granted the parties stipulation to set a trial so any date in August 2023. The trial was set for October 23, 2023. (See Stipulation Signed 10/07/22.) Defendants assert that at the time the stipulation was signed, it did not know that Defendant Ingel would be unavailable for the October 23, 2023 trial. 

On October 12, 2023, Defense Counsel Liza C. Milanes learned that Defendant Ingel would be unavailable for the October 23, 2023, trial and informed Plaintiff of the issue. (Milanes Supp. Decl. ¶ 13, Ex. G.) Ms. Milanes took medical leave from December 02, 2022, to February 21, 2023, and was unable to prepare a stipulation for a trial continuance. (Milanes Decl. ¶ 16.) Defense counsel Peter A. Drafter asserts that on December 14, 2022, he learned for the first time that Defendant Ingel was going to be out of the country during the October 23, 2023 trial date. (Drafter Supp. Decl. 3.) That same day, Defense counsel asserts that Plaintiff agreed to a trial continuance. (Drafter Decl. ¶ 3, Ex. AA.) On January 10, 2023, Defense counsel sent a revised stipulation to continue the trial date to December 01, 2023. (Id. ¶ 4, Ex. BB.) Defense counsel now asserts that Plaintiff is opposed to a continuance of the trial to after December 01, 2023. (Drafter Del. ¶ 4, Ex. A.) 

Defendants assert that prior to the October 07, 2023 continuance, Defendant Ingel had already made plans to travel to South Africa and Israel with his family to celebrate his mother-in-law’s 98tb birthday through the months of September and November of 2023. (Milanes Supp. Decl. ¶ 18.) 

Plaintiff refuses to agree to the stipulation on the basis that it was not informed in October 2022 of Defendant Ingel’s unavailability and fears that the trial could be postponed for an additional six months after the proposed trial date of December 01, 2023. (Mink Decl. ¶ 8.) Defendants provide evidence that Defense counsel Milanes informed Plaintiff’s counsel of Mr. Ingel’s unavailability on October 12, 2021, via email, and on October 14, 2022, via telephone. (Milanes Suppl. Decl. ¶ 15, Ex. G.) Moreover, Plaintiff fails to articulate how he will be prejudiced if the trial is delayed for six months beyond the proposed December 01, 2023 trial date. By Plaintiff’s own account, the trial is not complex and any alleged prejudice is minimal. 

The Court finds that good cause exists to continue the trial date as Defendants will be prejudiced if Defendant Ingel is not available for trial. 

Defendants’ Motion is GRANTED. 

Conclusion 

Defendants’ Motion to Continue Trial is GRANTED. Trial is continued to December 11, 2023. FSC is continued to November 29, 2023. Post Mediation Conference is set on September 7, 2023. 

Moving party to give notice.