Motion-Secondary: KARA L. ESBORG VS. COMCAST CORP. ET AL

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                                Freeman Mathis
Gary LLP
Atomeys aw

FREEMAN MATHIS & GARY, LLP ELECTRONICALLY

PAUL A. BIGLEY / Bar No. 119462 FILED

44 Montgomery Street, Suite 3580 Superior Court of California,
San Francisco, California 94104-6702 Coy ee ree
(415) 627-9000; FAX: (213) 615-7100 08/09/2018

Clerk of the Court
BY:BOWMAN LIU
Deputy Clerk

Mailing Address:

550 South Hope Street, 22nd Floor

Los Angeles, California 90071-2627

Attorneys for Defendant

COMCAST OF CALIFORNIA III, INC.
SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF SAN FRANCISCO

KARA L. ESBORG, ) Case No. CGC-16-553614
) [Unlimited Jurisdiction]
Plaintiff, )
ve ) MEMORANDUM OF POINTS AND
) AUTHORITIES IN SUPPORT OF EX
COMCAST CORP.; et al., ) PARTE APPLICATION TO CONTINUE
) TRIAL
Defendants. )
) Date: August 10, 2018
Time: 11:00 a.m.

Dept: “206”
L INTRODUCTION
This case arises out of a November 23, 2015 accident when the plaintiff, KARA ESBORG,
a bicyclist, struck a low hanging wire in San Francisco. When “clothes lined” by the wire, she was
thrown from her bike, her helmet came off and she struck her head on the pavement. She alleges a

traumatic brain injury (TBI). Liability is contested.

Il. GOOD CAUSE EXISTS IN SUPPORT OF THE REQUESTED
CONTINUANCE

In pertinent part, California Rule of Court Rule 3.1332(d) provides factors to be considered
by the Court in ruling on a motion or application for continuance, which include the following: (3)
The length of the continuance requested; (5) The prejudice that parties or witnesses will suffer as a

result of the continuance; (8) Whether trial counsel is engaged in another trial; (10) Whether the

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF EX PARTE APPLICATION OF
COMCAST AND AT&T TO CONTINUE TRIAL
48018801 11378-75770 OTRFreeman Mathis
Gary LLP
Atmmeyea Law

28

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.

While it is true that a trial judge must have control of the courtroom and its calendar and
must have discretion to deny a request for a continuance when there is no good cause for granting
one, it is equally true that a request for a continuance supported by a showing of good cause usually
ought to be granted. (Estate of Meeker (1993) 13 Cal.App.4th 1099, 1105). The denial of a
continuance which has the practical effect of denying the applicant a fair hearing is often held
reversible error.” (Palomar Mortgage Co. v. Lister (1963) 212 Cal.App.2d 236; Muller v. Tanner
(1969) 2 Cal.App.3d 445). “. . . [I]t must be recollected that the province of the court and the
purpose of the trial are to fairly and properly adjudicate the rights of the litigants.” (Palomar
Mortgage Co. v. Lister (1963) 212 Cal.App.2d 236).

Here, upon evaluation of all remaining factors set forth above, a trial continuance is
appropriate in this case because of the following:

(1) During these next two weeks, a number of expert depositions had been scheduled
and just taken off calendar as the parties have agreed to continued the trial to
January 22, 2019. However, an issue has risen with respect to the terms of that
continuance with respect to experts.

(2) The parties agreed to re-open discovery as plaintiff's counsel indicated he wanted to

bring a motion to compel further discovery, defendants wanted to take a fact witness
deposition. However, defendants do not believe it appropriate at this stage of the
litigation to re-open the provisions of Code of Civil Procedure, Section 2034.010, et
seq., and allow new or additional experts to be identified. If not for the problems with
the expert depositions and the mental examination of the plaintiff as well as my
engagement in Sacramento, this case would be ready

(3) I am answering ready in Sacramento on Monday, August 13, 2018, and do not

expect to begin calling witnesses until the week of August 20, 2018. There are a

minimum of 25 expert and fact witnesses that are expected to testify along with the

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT EX PARTE APPLICATION OF COMCAST
AND AT&T TO CONTINUE TRIAL
48018801 11378-75770 OTRFreeman Mathis
Gary, LLP
zoey aL

parties. Therefore, { will most likely be engaged in trial on August 27, 2018;
(4) The Parties seek a continuance to January 22, 2019 so that they may conduct and
complete discovery, including but not limited to the mental examination, time to allow
the experts an opportunity to review and consider files and reports regarding those
examinations and prepare for a meaningful deposition. (C.R.C. Rule 3.1332(d)(3).)
(5) The Parties will accommodate this Court’s calendar to obtain a new trial date
convenient to this Court. (C.R.C. Rule 3.1332(d)(7).)
(6) The interests of justice are best served by a continuance of the trial date and
certainly, a prejudice exists to both sides if no continuance is granted. (C.R.C. Rule
3.1332(d)(10).)
TH. CONCLUSION.
Based on the foregoing, good cause exists to continue trial to January 22, 2019, or a time
thereafter convenient to this Court’s schedule.
The parties further request the court to rule on the issue of expert designations. Defendants
assert that to essentially “re-litigate” this case with allowing new experts is inappropriate at this
stage of the case.

Dated: August 9, 2018 FREEMAN MATHIS & GARY LLP

By: TOO ee

PAUL A. BIGLEY
Attorneys for COMCAST OF CALIFORNIA
TH, INC.

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT EX PARTE APPLICATION OF COMCAST
AND AT&T TO CONTINUE TRIAL
48018801 11378-75770 OTR