The Defendant Brian Douglas Scott Motion for an order continuing the trial in this matter currently set for April 16, 2018 is GRANTED.? The trial date is continued to July 23, 2018.
Authority:
A party seeking a continuance of the date set for trial must make the motion as soon as reasonably practical once the necessity for the continuance is discovered.? (Cal. Rules of Court, rule 3.1332(b).)? ?[E]ach request for a continuance must be considered on its own merits.?? (Id., at rule 3.1332(c).)? Moreover, on motion of any party, the court may ?reopen discovery after a new trial date has been set[.]?? (Civ. Proc. Code ? 2024.050(b).)
The court may grant a continuance when good cause is shown, by circumstances including the following:
- The substitution of trial counsel, but only where there is an affirmative showing that the substitution is required in the interests of justice;
- A party?s excused inability to obtain essential testimony, documents, or other material evidence despite diligent efforts; or
- 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, at rules 3.1332(c)(5), (6) & (7).)
In ruling on a motion for trial continuance, the court must consider all the facts and circumstances that are relevant including the following factors:
- The proximity of the trial date;
- Whether there was any previous continuance, extension of time, or delay of trial due to any party;
- The length of the continuance requested;
- The availability of alternative means to address the problem that gave rise to the motion or application for a continuance;
- The prejudice that parties or witnesses will suffer as a result of the continuance;
- 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;
- The court?s calendar and the impact of granting a continuance on other pending trials;
- Whether all parties have 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; and
- Any other fact or circumstance relevant to the fair determination of the motion or application.? (Cal. Rules of Court, rule 3.1332(d).)
Application:
The defendant has presented evidence which establishes that the facts and circumstances in this case warrant a trial continuance pursuant to Cal. Rules of Court, rule 3.1332(c) and (d).
The plaintiff asserts that at the time of the accident, she was seven months post cervical fusion surgery and although recovering nicely, suffered a severe re-injury to her neck requiring her to undergo another extensive cervical surgery. The plaintiff further asserts that the outcome of the surgery and the long term prognosis are not presently known.? The defendant has established that his retained orthopedic expert, Nittin Bhatia, M.D., is not available to conduct the plaintiff?s Independent Medical Examination until June 2018. Declaration of? Kelley Gural ?? 3 and 4.?? The defendant has established that given the personal injury claims in this case, an IME is necessary to prepare a defense.
Additionally, the defendant has presented evidence which supports a finding that the defendant has a a pre-paid international vacation to Spain set for April 19, 2018 which is just three days after the present trial date.? Declaration of? Kelley Gural ?? 5 and 6.
Plaintiff has presented no argument or evidence which supports a finding that the three month continuance would result in any prejudice to her with respect to the trial of issues presented in her complaint which was filed on March 20, 2017.
The defendant has established that there have been no prior continuances of the trial date. Declaration of Kelley Gural ? 2.? There is no indication that the case is entitled to preference.
Moving party to give notice.