Motion to Continue Trial
34-2023-00337497-CU-OR-GDS: Aisle 3 Concepts, LLC vs. BMS Scolop, Inc. 05/02/2025 Hearing on Motion to Continue Trial in Department 47
Tentative Ruling
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The motion of Defendants BMS Scolop, Inc. (BMS Scolop), Brian Simmons, and Maryann Simmons (collectively Defendants) to continue trial is ruled on as follows.
Trial is currently scheduled for June 9, 2025. Defendants request a continuance of trial on grounds they recently retained new counsel and need time to complete discovery and prepare for trial. Plaintiff Aisle 3 Concepts, LLC (opposes the motion).
As preliminary issue, the Court notes the moving paper were filed on behalf of Defendants by William W. Palmer, Esq. on April 21, 2025. At that time, Mr. Palmer was not Defendants attorney of record. The moving papers therefore failed to comply with Code of Civil Procedure § 128.7, which requires all papers to be signed by an attorney of record or the party. However, the record indicates Defendants filed substitutions of attorney identifying Mr. Palmer as their attorney of record on April 28, 2025[1]. As the defect has been cured, the Court will consider the merits of the motion.
To ensure the prompt disposition of civil cases, the dates assigned for a trial are firm. (Cal. Rules of Court, rule 3.1332(a).) Although continuances of trial are disfavored, each request for a continuance must be considered on its own merits. (Id., rule 3.1332(c).) The court may grant a continuance only on an affirmative showing of good cause requiring the continuance. (Ibid.) The general rule governing continuances set forth in section 9 [of the Standards of Judicial Administration] is that . . . the necessity for the continuance should have resulted from an emergency occurring after the trial setting conference that could not have been anticipated or avoided with reasonable diligence and cannot now be properly provided for other than by
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34-2023-00337497-CU-OR-GDS: Aisle 3 Concepts, LLC vs. BMS Scolop, Inc. 05/02/2025 Hearing on Motion to Continue Trial in Department 47
granting of a continuance. (Lazarus v. Titmus (1998) 64 Cal.App.4th 1242, 1250 [emphasis added].)
A substitution of counsel is good cause for a continuance where the substitution is made in the interests of justice. (Cal. Rules of Court, rule 3.1332(c)(4).) Here, the Court finds the substitution was made in the interests of justice as BMS Scolop was previously unrepresented and would be unable to participate in trial absent substitution.
Relying on numerous cases, Plaintiff argues a continuance should nonetheless be denied because Defendants had ample time to retain new counsel and complete discovery and failed to do so.
The evidence indicates Defendants signed substitutions of attorney agreeing to prior counsels withdrawal in April 2024. While Mr. Palmer represents Defendants prior counsel continued to contact them for the purported purpose of obtaining a substitution regarding the cross-complaint through the beginning of 2025, that evidence does not change the fact that Defendants knew no later than April 2024 that they would not be represented by counsel at trial unless they retained new counsel. Defendants provide no explanation as to why they did not seek to retain new counsel earlier or to complete discovery prior to Mr.
Palmers retention. Nonetheless, the Court notes Defendants have now retained new counsel and acted promptly to seek a continuance in order to permit Mr. Palmer to have adequate time to prepare for trial. Further, while Plaintiff conclusively states a continuance would cause prejudice, Plaintiff has failed to present sufficient evidence and argument to show why a short continuance would be prejudicial.
The Court finds good cause for a short continuance. The motion is granted. The May 6, 2025 MSC and June 9, 2025 trial dates are VACATED.
The parties failed to comply with Local Rule 2.11, which requires all parties to provide their availability for trial when a motion to continue trial is pending, regardless of whether the motion is opposed. Accordingly, appearances are required to select a date for trial.
The collective papers represent that certain discovery deadlines have passed. Pursuant to Code of Civ. Proc. § 2024.020(b), once discovery has closed, a trial continuance does not operate to reopen discovery proceedings. Absent a stipulation, such a request must be made via a separate noticed motion and must be accompanied by a meet and confer declaration. (Code Civ. Proc. §§ 2024.050(a) and 2024.060.) Thus, the matter of reopening discovery is not properly before the Court at this time.
All other statutory deadlines, including discovery deadlines that remains open as of the date of
SUPERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO
34-2023-00337497-CU-OR-GDS: Aisle 3 Concepts, LLC vs. BMS Scolop, Inc. 05/02/2025 Hearing on Motion to Continue Trial in Department 47
the hearing, shall be governed by the new trial date.
Before the hearing, the parties are directed to meet and confer as to a mutually agreeable trial date before August 18, 2025, unless all parties agree to a later date. Absent a timely request for oral arguments, the hearing will be limited to selection of a trial and MSC date.
This case has been assigned to Department 47 for hearing. In the event that either party requests a hearing the matter will be heard at 9:30 a.m. in Department 47. Any party requesting an oral argument must contact the clerk at (916) 874-5487 and opposing counsel or parties in pro per by 12:00 p.m. on the day before the hearing. If a proper request for hearing is not made, this shall become the order of the Court.
Parties requesting services of a court reporter will need to arrange for private court reporter services at their own expense, pursuant to Government Code section 68086 and California Rules of Court, rule 2.956. Requirements for requesting a court reporter are listed in the Policy for Official Reporter Pro Tempore available on the Sacramento Superior Court website at https://www.saccourt.ca.gov/court-reporters/docs/crtrp-6a.pdf. Parties may contact Court- Approved Official Reporters Pro Tempore by utilizing the list of Court Approved Official Reporters Pro Tempore available at https://www.saccourt.ca.gov/court-reporters/docs/crtrp- 13.Pdf A Stipulation and Appointment of Official Reporter Pro Tempore (CV/E-206) is required to be signed by each party, the private court reporter, and the Judge prior to the hearing, if not using a reporter from the Courts Approved Official Reporter Pro Tempore list, Once the form is signed it must be filed with the clerk.
If a litigant has been granted a fee waiver and requests a court reporter, the party must submit a Request for Court Reporter by a Party with a Fee Waiver (CV/E-211) and it must be filed with the clerk at least 10 days prior to the hearing or at the time the proceeding is scheduled if less than 10 days away. Once approved, the clerk will be forward the form to the Court Reporters Office and an official reporter will be provided.
[1] As an aside, the Court notes that until the substitution was filed and served, Plaintiffs were both permitted and
required to continue serving Defendants directly as self-represented parties. (Code Civ. Proc. § 285.) The Court makes no determination at this time as to whether Plaintiffs should have also provided notice of any filings to Mr. Palmer as a professional courtesy.