Opinion
Peter M. Hart (State Bar No. 107920), H. Paul Efstratis (State Bar No. 242373), LECLAIRRYAN LLP, Attorneys for Defendant FORD MOTOR COMPANY.
Erika N. Kavicky, Attorney for Plaintiffs, YOLANDA GORDILLO and GABRIEL PRECIADO.
STIPULATION TO CONTINUE TRIAL DATE AND PRETRIAL CONFERENCE
MICHAEL J. SENG, Magistrate Judge.
IT IS HEREBY STIPULATED between plaintiffs YOLANDA GORDILLO and GABRIEL PRECIADO ("Plaintiffs") through their respective counsel of record, Erika N. Kavicky, and defendant FORD MOTOR COMPANY ("Defendant"), by its respective counsel of record, H. Paul Efstratis of LeClairRyan, LLP, as follows:
1. This is a lemon law claim where Plaintiffs are alleging a violation of California's Song-Beverly Consumer Warranty Act in connection with the purchase of their 2008 Ford F-250 truck from an authorized dealer of Defendant. The estimated length of trial is five (5) to seven (7) days.
2. A Jury Trial is currently set for October 22, 2013 at 8:30 a.m. in Fresno Courtroom 6 and the Pretrial Conference is set for September 20, 2013 at 9:30 a.m. Fresno Courtroom 6.
3. Good cause exists to grant a brief third trial continuance and continue the pretrial conference in this matter due to the following:
a. Defense counsel's firm, LeClairRyan, LLP substituted in for Defendant on February 6, 2013.
b. Defense counsel will be preparing for trial in the matter of Kraus v. Grilli, Case No. CV110500 in San Luis Obispo County Superior Case which was originally set for October 18, 2013. However, at a recent Trial Readiness Conference, the Judge continued the trial date to October 28, 2013 due a conflicting trial which was expected to last eight (8) to ten (10) weeks. Defendant will suffer prejudice as its defense counsel will need to prepare for Trial in this matter on October 22, 2013 as well as the Kraus v. Grilli trial set for October 28, 2013.
c. The parties are currently discussing settlement in this matter. The parties have agreed to postpone some of the depositions of the technicians who performed work on the subject vehicle in order to see whether the matter could be settled. In addition, there have also been some delays in locating some of the deponents since many of the technicians and the dealership's person most qualified have left the authorized dealership of Westside Ford and relocated to Santos Ford.
d. The parties have also agreed to postpone expert depositions to see whether the parties can reach a settlement in this matter.
e. The parties have contacted Yosemite Deputy Clerk, Laurie C. Yu, to inquire about the Honorable Michael Judge J. Seng's availability for a trial in late January 2014. Ms. Yu indicated that Judge Seng is available on January 21, 2014 for a Jury Trial.
f. Accordingly, the parties stipulate to a trial continuance to January 21, 2014 based on the communications with Ms. Yu, or any date thereafter that is convenient to the Court and the parties.
g. In addition to a request for trial continuance, the parties request that the pretrial conference, currently set for September 20, 2013, be continued to some date in mid-December 2013 or early January 2014.
h. No party will suffer prejudice should the Court continue the trial and pretrial conference in this matter. However, not continuing the trial would potentially prejudice both parties because of the conflict with defense counsel and the outstanding discovery which needs to be completed.
i. While the parties understand that the Court has previously indicated that no future continuance will be granted without good cause, the parties believe there is good cause to continue the trial date and pretrial conference due to defense counsel's schedule, the difficulty the parties have had in locating pertinent trial witnesses, and active settlement discussion that may in turn resolve this matter without the necessity of trial.
j. The parties are mindful of the Court's own calendar and request a new trial date no sooner than January 21, 2014.
ORDER
The Court, having carefully considered the parties' Stipulation to continue the pre-trail and trial dates in case No. 1:11 cv-01786-MJS and the procedural history of the case, rejects the parties' stipulation and DENIES their request to again continue the pre-trial and trial dates, for the following reasons:
1. The case has been pending for just shy of two years;
2. Present Defense counsel, though new to the case in February 2013, has now been counsel of record for defendant for some seven months, ample time to get up to speed and conduct necessary discovery;
3. The original trial date was April 23, 2013; it has since been continued two times;
4. The discovery deadline has been continued more than once and, as of the last continuance, was to be concluded by August 20; though the parties may, and apparently did, agree between themselves to conduct discovery after the deadline, there is no good cause shown to indicate it could not have been completed as scheduled and extended;
5. The Court in its January 9, 2013, Order continuing trial and other dates advised: "Absent presently unforeseen and unforeseeable circumstances establishing good cause, there shall be no further continuances." (ECF No. 27. Emphasis in original.); notwithstanding that language, inadvertence on the part of the Court led it to grant a subsequent continuance without addressing that language; and,
6. The Court finds no good cause for continuance now; the case, though apparently involving technical automotive matters, does not otherwise appear to be complex; the fact that another court recently elected to move defense counsel's trial date in another case does not justify vacating this trial date which was set four months earlier; while the Court certainly encourages settlement, there remains
STIPULATION AND ORDER TO CONTINUE TRIAL DATE AND PRETRIAL CONFERENCE ample time between now and trial to engage in settlement conferences.
For all the foregoing reasons, the parties joint request for a continuance of Pre-trial and trial dates is DENIED.
IT IS SO ORDERED.