Christian Anthony Carino vs Art & Elements Inc et al

Case Number

23CV01958

Case Type

Hearing Date / Time

Wed, 04/10/2024 - 10:00

Nature of Proceedings

Motion: Continue re MSC and Trial

Tentative Ruling

For Plaintiff [“Plaintiff”]: Eric Berg

For Defendant Art & Elements, Inc [“Art”]: Christian Bosuel

For Defendant Hugo Garcia [“Garcia”]; self-represented

For Defendant Esparza [“Esparza”]: self-represented

For Hudson Insurance Company [“Hudson]: Clark Cameron  

Issue

Defendant Art’s Motion to Continue the Trial Date [and related dates].

RULING

1. The Motion is a GRANTED.

2. The Current Trial Date of July 31, 2024 is continued 120+ days to December 4, 2024 at 11:30am.

3. The Current MSC Date of 7/12 is continued to 10/25/24 at 8:30am in Department #5.

4. The Current final CMC set for 5/1 is continued to 9/11/24 at 8:30am in this Department.

5. All trial related cutoff dates are now set against the new trial date.

6. There will be no stay of pretrial discovery and motions.

7. Defendant Art’s counsel shall not use his medical condition as a basis to attempt to delay any pretrial discovery and motions.

8. Any alleged violation of any item in this ruling may be presented to the Court for requested relief on an ex parte basis.

9. There will be no additional continuances granted under any circumstances.

10. The Court has reserved the following for your case: Pretrial Conference 12/4/24 at 11:30am; jury panel comes over and jury selection begins 12/5 at 9am; 12/6; 12/9; 12/10; 12/12; 12/13; 12/16; 12/17; 12/19; 12/20 = 10 days. [The Court notes that Art’s initial lawyer estimated only a 3-5-day jury trial; Hudson’s lawyer estimated a 2-3-day nonjury trial]; do not schedule any conflicts.

Analysis

The Background

This case was filed in May 2023 by attorney Christopher Haskell; Plaintiff alleges Defendants breached their contractual obligations to Plaintiff and were negligent by performing defective construction work on Plaintiff’s real property and delivering incorrect steel beams. That Defendants misrepresented that no building permits were required for their work. Plaintiff sustained financial damages to be proven at trial. Art answered in June 2023; the current trial date was set on 9/6/23; there have been an extraordinary number of substitutions of attorney filed in this case; Art filed an Amended Answer on 11/29/23; on 11/28/23 Defendant Garcia substituted in to represent himself; on 1/4/24 Eric Berg substituted in as Plaintiff’s counsel; on 1/16/24 Christian Bosuel substituted in for Art; on 1/25/24 Garcia substituted in to represent himself; there are 3 motions to compel calendared for 4/24/24; the current Trial Date is 7/31; the MSC is 7/12; a final CMC is set for 5/1.

The Motion

Defendant Art filed the Motion to Continue on 3/4/24; summarized; in May 2023 the Plaintiff initiated this action against Art, Garcia, Esparza, and Hudson, for an alleged breach of contract. On June 14, 2023, Hudson filed a cross-complaint against Plaintiff. On November 28, 2023, Art filed its first amended answer to the complaint. On January 16, 2024, a substitution of attorney was filed, “substituting in” current counsel for Art; by January 2024, no discovery had been propounded; Defendants are currently evaluating contractual obligations for alternative dispute resolution contained in the subject contract; diligently commencing preparation for the case; Defendant Art’s attorney's accommodated Plaintiff’s request for an early inspection of the premises; in February 2024, counsel for Art suffered a severe back injury; surgery scheduled for March 12, 2024; surgeon has advised a minimum recovery period of 90 days; injury requires the ingestion of strong painkillers by Art’s attorney; because there have been recent substitutions of attorneys in the case for both Plaintiff and for Defendants, and Defendant Art’s attorney’s unexpected need for surgery, coupled with his recently intervention in the case and his heavily impacted calendar, Defendant Art’s counsel’s ability to adequately prepare the case for trial scheduled to start on July 31, 2024 is impossible; Plaintiff’s counsel refused to stipulate to a continuance under any circumstances; no prior continuances have taken place in this; this would be the first and only continuance in the case; the request for a continuance for 120 days is reasonable given the circumstances surrounding this application; will allow the discovery phase to be completed; Defendant Art will be irreparably harmed if the continuance is not granted.

The Opposition

Filed by Plaintiff on 3/27; 46 pages; summarized; Plaintiff recommended on four separate occasions that Defendant Art present this Motion by way of ex parte application.  This Court is very familiar with trial continuance requests and is very comfortable dealing with them in real time; issue could have been resolved six weeks ago without motion work; Plaintiff’s primary objection to the request is simple; request is not for a 90 or 120 day continuance of the trial date, but as a practical matter for a 90 to 120 day stay of the all aspects of the case while counsel recovers from back surgery; “stay request” is evidenced by the Proposed Order submitted with the Motion, which requests that “all dispositive and non-dispositive motions and filing dates be continued to reflect the confirmation of the new trial date.” This request presumably includes (1) Plaintiff’s three Motions to Compel Further Responses to Discovery, currently set for hearing on April 24, 2024; (2) any further discovery obligations ordered upon Defendants by this Court should it grant Plaintiff’s requests for relief; and (3) Defendant’s responses to additional pending written discovery recently served upon it by Plaintiff. Defendant’s stay request is also evidenced in the Motion, which states that “Defendant’s attorney has limited capacity to work due to illness.”  It is entirely reasonable to infer from this statement that counsel’s ability to work this case for the next three to four months will be limited at best; stay request is further evidenced by its counsel’s March 21, 2024 email to counsel for Plaintiff, where he accused Plaintiff’s counsel of “gamesmanship” in pursuing its pending Motions to Compel Further Discovery; the goal seems to be that all pending and contemplated pretrial activity gets pushed back 90 to 120 days while counsel recovers, and Plaintiff not be permitted to advance his case during this time; is not acceptable to Plaintiff; Art’s  Counsel, who is a sole practitioner, is unable to commit to being available for all depositions and motion work Plaintiff needs to conduct while he is recovering. Art’s Counsel instead wants the unilateral ability to pick and choose what pretrial discovery he will agree to make his client available during this “period of continuance.”  That is the very definition of a request to stay proceedings. The request should be denied.

The Reply

Filed 3/29; summarized; Plaintiff has failed to address crucial grounds for the motion, namely recent attorney retention and a significant medical emergency affecting Defendant’s preparation; understanding of the distinction between a continuance and a stay is pivotal; Defendant seeks solely a continuance of the trial date, not a suspension of proceedings. Contrary to Plaintiff’s assertions, Defendant’s counsel proposed ongoing collaboration during the recovery period; is willing to schedule discovery events and attend remotely demonstrates commitment to maintaining clarity and progress in the case. Despite Plaintiff’s three purported discovery motions, Defendant never received service. Plaintiff’s attorney only agreed to postpone hearings concerning these motions after he was faced with potential sanctions; filing ex parte was deemed unnecessary given adequate time for a regular motion; should the Court prefer ex parte review under the circumstances, Defendant will abide by its directives. Before Mr. Berg represented Plaintiff, the parties’ prior attorneys mutually agreed not to work on discovery because they were trying to settle the case. The extensions of time to respond to discovery were not asked for by Defendant; they were mutually agreed to, in order to focus on the settlement negotiations. Defendant has not received responses to the first round of discovery propounded, but given the facts surrounding this case that includes three different contracts and nine different causes of actions, a second round of written discovery will be needed; possibly motions to compel requests from each set, between twelve to fifteen depositions at least, plus retention of expert witnesses, all of which would be just on behalf of Defendant Art. There are four Defendants in this case. Nevertheless, upon receipt of the discovery responses and conducting some depositions, Defendant Art will evaluate alternative dispute resolution based on contractual obligations and will consider a motion for summary judgment.

The Court’s Conclusions

This Court is rarely impressed with a motion to continue the trial date. Additionally, the Court is very concerned by the points raised in the Opposition that Art’s counsel will not be able to do all the work required. It appears not to be a complicated case because Plaintiff’s lawyer and Hudson’s lawyer estimated a very short trial. This Court will not micromanage the case for Defendant Art or any other party or lawyer other than to provide very firm orders that the case will not be impacted by the personal issues presented by Art’s lawyer or for any other reason(s). Thus, this request will be granted. There is a lot to do – please do it.

NOTICE: We will not have a Court reporter for your case. If counsel want a Court reporter, it will be your obligation to retain one for the trial. There can only be one official record   Court proceedings, and only a reporter appointed by the Court may report a Court proceeding.  Only one reporter will be allowed to report a Court proceeding at any given time.  If the parties cannot agree on a reporter, the Court will make the selection after you submit the name and address of the Court reporter each counsel has engaged. Counsel will notify the Court 10 days in advance of the trial date if you are going to provide a Court reporter. If you decide not to have a Court reporter, you may elect to use the electronic recording device now installed in the Courtroom.