Case Number: BC496708    Hearing Date: August 04, 2014    Dept: 32

CASE NAME: Said Rahban, M.D., v. Bertha Gomez
CASE NO.: BC496708 [related to BC535347]
HEARING DATE: 08/04/14
DEPARTMENT: 32
CALENDAR NO.: 3
SUBJECT: Motion to Continue Trial and Related Cut-off Dates
MOVING PARTY: Defendant Bertha Gomez; Defendants Julio Castellon, Isaura Violeta Gomez, and Cristina Isabel Gomez from LASC Case No. BC535347
RESP. PARTY: Plaintiff Said Rahban, M.D., a Medical Corporation

COURT’S TENTATIVE RULING

Motion to Continue Trial and Related Cut-off Dates GRANTED. The trial date is continued to a date to be selected at the hearing.

BACKGROUND

This action was commenced by plaintiff Said Rahban, M.D., a Medical Corporation (“Plaintiff’) against defendant Bertha Gomez (“Gomez” or “Defendand”), one of Plaintiffs former employees, to recover the amount of some unspecified number of checks which Gomez allegedly stole from Plaintiff. Gomez, who was Plaintiff’s office manager for 27 years and was authorized to receive checks from insurance companies issued to Plaintiff, allegedly forged Plaintiff’s endorsement, cashed the checks, and kept the proceeds.

In addition to Gomez, Plaintiff also sued defendants California Check Cashing, California Quick Pay, Inc., and Kazutoshi Takimoto (collectively, “California Check Cashing”), a check cashing business which allegedly would cash the checks for Gomez and pay her the proceeds, without confirming the payee’s identity. Plaintiff likewise sued Hanmi Bank (“Bank”), alleging that California Check Cashing deposited the checks in its accounts at the Bank, and that the Bank improperly paid funds on the checks. Plaintiff dismissed the complaint as to Hanmi Bank on April 7, 2014.

In her motion to continue, Gomez presents a different narrative for the operative events. Gomez acknowledges that for a period of years she regularly cashed insurance company checks payable to Plaintiff in the amount of $40,000 to $50,000 per year. Thus, while Gomez admits to cashing several hundred thousand dollars of insurance company checks, she did so, she alleges, at Plaintiff’s direction and for his benefit. The above makes clear that at least on a certain level there is agreement on some basic facts, i.e., a substantial amount in insurance company checks was converted to cash. The case will likely turn on the issue of whether or not Gomez was acting with or without Plaintiff’s knowledge and authority.

On June 11, 2014, the court denied Defendant Bertha Gomez’s ex parte application to continue trial. The court set the instant motion to continue trial on calendar for August 4, 2014.

On August 1, 2014, Plaintiff’s counsel submitted a declaration stating that he had been advised by Defendant’s counsel that she had been arrested by the Los Angeles Police Department for “crimes associated” with the underlying matter. The court does not know whether this is correct, but the parties should be prepared to address the effect, if any, that the above will have on the trial date.

ANALYSIS

Timeliness of Motion

As Plaintiff correctly contends, the motion was served four days late pursuant to CCP § 1005(b). For a hearing date of August 4, 2014, the motion should have been served by July 11, 2014, with additional time depending on the method of service. Defendant served the motion by regular mail on July 11, 2014, which would add five calendar days to the calculation of time. Therefore, the motion was not timely served.

The court admonishes Defendant that all papers should be timely served by the appropriate deadlines. However, as the motion raises an important issue in the management of this case, the court exercises its discretion to consider the motion on the merits. Plaintiff shows no prejudice from the late service of the motion.

Declarations of Defendants Julio Castellon, Isaura Violeta Gomez, and Cristina Isabel Gomez from Related Case No. BC535347

In a declaration, Defendants Castellon, et al. from the related fraudulent transfer case (BC535347) request a continuance of trial in the instant case. This declaration, as well as the supplemental declaration of Defendants Castellon, et al., was not timely served 16 court days prior to the hearing date. The first declaration was served after Plaintiff filed an opposition to the instant motion. Thus, Plaintiff would be prejudiced by the court’s consideration of these declarations. Also, there is a question of whether these Defendants may properly object to a motion for continuance in this related action. Accordingly, the court declines to consider the declarations of Defendants Castellon, et al. Because the court disregards the declarations of Defendants Castellon, et al., Plaintiff’s procedural objections and motion to strike filed July 31, 2014 are moot.

Motion to Continuance Trial

Defendant seeks a 60 to 90 day trial continuance to complete discovery and bring discovery related motions. Although continuances of trials are disfavored, each request for a continuance must be considered on its own merits. (CRC Rule 3.1332(c).) The court may grant a continuance only on an affirmative showing of good cause requiring the continuance. (CRC Rule 3.1332(c).) The court may look to the following factors in determining whether a trial continuance is warranted: (1) proximity of the trial date; (2) whether there was any previous continuance 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; (5) the prejudice that parties or witnesses will suffer as a result of the continuance; and (6) whether a significant, unanticipated change in the status of the case occurred as a result of which the case is not ready for trial. (See generally, CRC Rule 3.1332, subd. (d)(1)-(11).)

In support of the motion, Defendant Gomez submits evidence that she has been coordinating her discovery efforts with co-defendants in this case and the defendants in related case BC535347, a fraudulent transfer action filed by Plaintiff on February 5, 2014. (Barrett Decl. ¶¶ 4-10.) Defendant’s counsel contends that he has been joining in the discovery efforts of other defendants. (Id. ¶ 13.) He contends that Plaintiff refused to produce documents at his recent deposition that were requested by Defendant, and that Plaintiff admitted to destroying patient files related to his claims in this lawsuit. (Id. ¶¶ 19-25.) Defendant’s counsel also declares that there are up to five witnesses who still need to be deposed. (Id. ¶ 28.) He also indicates that Plaintiff has two computers in his possession that may contain a billing program relevant to Defendant’s defense. (Id. ¶¶ 22-27.)

In opposition, Plaintiff submits evidence that he has been diligent in his discovery and trial preparation. (Daghighian Decl. ¶¶ 25-30.) He also submits evidence that, although the matter has been pending for more than 18 months, Defendant never noticed Plaintiff’s deposition herself, but rather relied on a deposition notice served by co-defendants for a date two weeks before the July 14, 2014 discovery cutoff. Plaintiff’s counsel also indicates that Defendant did not serve written discovery until June 6, 2014. (Id. ¶¶ 31-37.) Plaintiff submits evidence that he has fully complied with Defendants’ discovery requests and that his shredding of “very old” patient files in the regular course of business did not prejudice Defendant. Plaintiff notes that copies of all of the allegedly stolen checks were provided to Defendant by co-defendant Hanmi Bank. (Id. ¶¶ 38-59.)

Plaintiff submits evidence that he would be prejudiced if the motion is granted because his counsel has set aside time for the August 12 trial date; Plaintiff, a busy physician, has cleared his calendar to attend trial; and Plaintiff and his wife have adjusted personal and travel plans around the trial. (Id. ¶¶ 64-67.) Plaintiff also contends that he has made efforts to ensure that witnesses are available for a trial commencing August 12, 2014. (Id. ¶¶ 69-70.)

In reply, Defendant’s counsel indicates in a declaration that he is scheduled to commence criminal jury trials on August 1, 2014 and August 5, 2014. (Suppl. Barrett Decl. ¶¶ 4-8.) Defendant’s counsel also concurs with and affirms the statements made by attorney Lozoya in his declaration, filed by Defendants Julio Castellon, et al. (Id. ¶¶ 10-11.) Defendant’s counsel declares that he believes that Plaintiff has failed to properly respond to all discovery and that Defendant must bring motions to compel further responses. (Id. ¶ 26.)

On balance, the court finds good cause for a brief trial continuance so that the parties can complete discovery. The declarations submitted by Defendant’s counsel state that Defendant has not completed discovery necessary for trial. The court cannot on this record decide whether Plaintiff has obstructed discovery or failed to comply with Defendant’s discovery demands, as alleged by Defendant, and need not do so. Defendant has submitted some evidence that there is unresolved discovery that may be important to the defense and accordingly important to a decision on the merits. It also seems clear that the discovery issues surfaced late in the case near the discovery cut- off date. The court also notes that there have been no previous trial continuances. The second amended complaint was also not filed until November 2013, less than a year ago. Under the circumstances, it would be in the interest of justice to permit Defendant additional time to complete discovery. Finally, Defendant’s counsel submits evidence of a scheduling conflict with criminal trials scheduled to commence in early August 2014 which would impact his ability to represent Defendant here.

As argued by Plaintiff, there is some evidence that Defendant has not been diligent. On the other hand, given that there are co-defendants in this case and a related action involving similar issues, in a multi- party case the court cannot find that it was unreasonable for Defendant to coordinate her discovery efforts with other defendants.

Plaintiff has also identified some prejudice from a trial continuance. However, Plaintiff has not shown severe prejudice that would weigh against a continuance under the circumstances. Plaintiff makes no showing that his counsel and witnesses would be unable to attend trial at a later date. Plaintiff’s counsel claims that Plaintiff has rearranged his work and personal schedule for trial. Although it is regrettable that Plaintiff may have rearranged his schedule for the August 12, 2014 trial date, that inconvenience does not go to the merits of the case, whereas Defendant’s inability to complete discovery could impact her substantive rights. Thus, there is a stronger interest here in granting Defendant a limited continuance to complete necessary discovery.

The court advises Defendant that she must use the additional time to prepare for trial in a diligent fashion and that further continuances may not be granted.

The motion is GRANTED. The trial date is to a date to be selected at the hearing.

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1
In opposition, Plaintiff points to a letter apparently written by Defendant Gomez to Plaintiff in which Gomez apologized for “breaking [Plaintiff’s] trust having cashed your personal office checks written to your name during past years.” (Oppo. Exh. A, B.) This evidence appears inconsistent with the defense theory presented in Defendant’s motion. However, the court does not consider the merits of the case on a motion to continue trial.