Judge Yolanda Orozco, Case 21STCV28586 2022-09-27 Tentative Ruling

Judge: Yolanda Orozco, Case: 21STCV28586, Date: 2022-09-27 Tentative Ruling

Case Number: 21STCV28586 Hearing Date: September 27, 2022 Dept: 31

MOTION TO CONTINUE HEARING

ON SUMMARY JUDGMENT IS GRANTED, IN PART

Background

On August 3, 2021, self-represented Plaintiff Jerrold A. Fine (“Plaintiff”) filed a complaint against Defendant Teri Lee Bernardi, Green Grown Bulk, Inc., and Does 1 through 10 for (1) written contract, (2) money lent, (3) money had and received, (4) open book account, and (5) account stated. Plaintiff alleges Defendants borrowed money from Plaintiff and failed to repay him.

Defendant Teri Lee Bernardi moves to continue the Motion for Summary Judgment hearing scheduled for October 6, 2022, until after December 1, 2022.

Plaintiff opposed the motion on August 9, 2022.

Legal Standard

A party may move for summary judgment “at any time after 60 days have elapsed since the general appearance in the action or proceeding of each party against whom the motion is directed or at any earlier time after the general appearance that the court, with or without notice and upon good cause shown, may direct.”¿ (Code Civ. Proc., § 437c, subd. (a)(1).)¿ Notice of the motion and supporting papers must be served on all other parties at least 75 days before the time appointed for hearing.¿ (Id., subd. (a)(2).)¿ The motion must be heard no later than 30 days before the date of trial, unless the court for good cause orders otherwise.¿ (Id., subd. (a)(3).)¿¿¿

It is well established that a court may not refuse to hear a summary judgment motion that is timely filed.¿ (Wells Fargo Bank v. Superior Court¿(1988) 206 Cal.App.3d 918, 919¿[“We are asked to determine whether the trial court may refuse to hear a summary judgment motion filed within the time limits of Code of Civil Procedure section 437c.¿We determine it may not”]; Sentry Ins. Co. v. Superior Court¿(1989) 207 Cal.App.3d 526, 530¿[“We are sympathetic to the problems the trial courts experience in calendaring and hearing the many motions for summary judgment. However, the solution to these problems cannot rest in a refusal to hear timely motions.”].)¿¿¿¿

As an initial matter, the enumerated grounds for a continuance are not exhaustive: “[c]ircumstances that¿may¿indicate good cause include:” (CRC 3.1332(c).)¿ Additionally, “[t]rial judges have inherent power to continue pending litigation independent of statutory authorization.” (Powers v. Bakersfield City School Dist.¿(1984) 157 Cal.App.3d 560, 571.)¿¿As noted by the court in¿Powers, “[i]t is evident that calendar congestion in¿. . .¿the courts in general, requires some degree of patience by all parties concerned.”¿ (Id.)¿¿Furthermore, trial continuances are appropriate to accommodate motions for summary judgment where circumstances change during the pendency of an action.¿ (See¿generally¿Polibrid Coatings, Inc. v. Sup. Ct.¿(2003) 112 Cal.App.4th 920, 923-24 [“We think it plain that in a case where a litigant is brought into litigation after 14/24ths of the time to litigate it has passed, these factors would dictate at least enough time for that party to reasonably complete discovery and bring a summary judgment motion.”].)¿

Discussion

Defendant Teri Bernardi moves for a continuance on the hearing for summary judgment currently scheduled for October 6, 2022, because her mother, who is 91 years of age, has fallen gravely ill. (Mot. Attachment A.) Once Bernardi’s mother is released from the hospital, she will require four months or more of rehabilitation. Furthermore, Bernardi has medical power of attorney, which will require her to be available to her mother’s doctors and provide additional care. Bernardi’s sister also passed away two weeks before her mother was admitted to the hospital.

Accordingly, Bernardi has been unable to address the issues related to the Motion for Summary Judgment (MSJ) hearing and requests that the hearing be continued until after December 1, 2022.

Plaintiff opposes the motion on the basis that Bernardi has had sufficient notice of the MSJ as it was filed and served on July 8, 2022, giving her a 90-day notice, more than the 75 days’ notice statutorily required. If the hearing is continued until after December 1, 2022, Bernardi would have had 147 days’ (nearly 5 months) notice. With the discovery cutoff date being January 17, 2023, Plaintiff would have little time to finish fact discovery if the MSJ is denied and Plaintiff may need to seek a continuance of the trial, which could prejudice him.

The Court is sympathetic to Bernardi’s position, it is unreasonable to continue the hearing on the MSJ to a date so close to the trial date. Bernardi has already had around 90 days to at least begin to prepare her opposition. A shorter continuance would be more appropriate and reasonable.

For the reasons stated, Defendant’s request to continue the MSJ hearing is GRANTED, in part. The hearing is continued to November 14, 2022, at 8:30 am.

Conclusion

Defendant Teri Bernardi’s Motion to Continue the Hearing on the Motion for Summary Judgment is GRANTED, in part. The hearing is continued to November 14, 2022, at 8:30 am.

Bernardi to give notice.

The parties are strongly encouraged to attend all scheduled hearings virtually or by audio. Effective July 20, 2020, all matters will be scheduled virtually and/or with audio through the Court’s LACourtConnect technology. The parties are strongly encouraged to use LACourtConnect for all their matters. All masking protocols will be observed at the Courthouse and in the courtrooms.