Case Name: Cilker Apartments LLC v. Western National Construction
Case No.: 2013-1-CV-258281

This construction defect action was filed on December 26, 2013. Trial was originally scheduled to begin on February 1, 2016, but was continued to June 13 upon a motion by defendant Western National Construction, the general contractor. At a case management conference, trial was again continued to July 11 to permit the parties to complete numerous expert depositions. The depositions are scheduled on an almost daily basis through July 7, with multiple depositions on some days. Recently, the Court trailed the start of trial until July 25, 2016 to accommodate the scheduling of motions by certain parties.

Currently before the Court is a motion by cross-defendant White Residential, Inc. to continue the trial for a further 60 days or more. Defendant and cross-defendant Tara Coatings, Inc. moves to join in White’s motion. Tara’s motion for joinder is GRANTED. Plaintiff opposes the motion to continue.

A motion or application to continue trial must be made as soon as reasonably practical once the necessity for the continuance is discovered. (Cal. Rules of Court, rule 3.1332(b).) “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 upon an affirmative showing of good cause requiring the continuance.” (Cal. Rules of Court, rule 3.1332, subd. (c).) In ruling on a motion or application for continuance, the court must consider all the facts and circumstances that are relevant to the determination, which may include (1) the proximity of the trial date; (2) whether there was any previous continuance, extension of time, or delay of trial due to 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(d).)

White became a party to this action when it was served with Western National’s cross-complaint on July 31, 2015. Its principal, Don White, believed that none of White’s insurance policies would cover this action, and White’s original counsel, Frank Peretta, participated in little of the discovery herein due to financial constraints. On an unspecified date, White tendered its defense to Nationwide Insurance Company and several other carriers. Nationwide responded and retained new counsel to defend White on April 20. The other carriers have not yet responded.

White’s new counsel have been attending depositions since they associated with Mr. Peretta on April 22. They are also attempting to obtain and review past deposition transcripts and tens of thousands of documents produced in discovery, a process rendered more difficult by the demanding deposition schedule leading up to trial. In addition, White has applied to the special master for permission to disclose a newly-retained expert, who has not yet reviewed any materials in preparation for trial. Finally, White may not be able to bring representatives from its other insurance carriers to the July 6th settlement conference, as these carriers have not yet responded to its tender.

While the Court appreciates the challenges faced by White’s new counsel in getting up to speed on a large case in a short amount of time, these circumstances do not constitute good cause to continue the trial. White has been a party to this action for almost a year, and its original counsel remains on the case. Consequently, there is no addition of a party or substitution of counsel as would typically indicate good cause for a continuance. (Cal. Rules of Court, rule 3.1332, subd. (c).) White’s new counsel filed this motion over a month after associating into the case. Trial is imminent and has already been continued multiple times, and the many other parties to this action are working diligently be ready by the scheduled date. Plaintiff would suffer additional prejudice, as it faces mounting repair costs and the prospect that insurance coverage will be depleted as time goes on.

In its joinder to White’s motion, Tara emphasizes the number of expert depositions that must be conducted and the volume of documents that the parties must review in a short time to prepare for trial. Again, while the Court appreciates these concerns and trial has already been continued to allow for this discovery, but it does not meet the good cause requirements as set forth above.

The motion to continue the trial is accordingly DENIED.