Judge: Mark H. Epstein, Case: 18SMCV00263, Date: 2022-10-19 Tentative Ruling

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Case Number: 18SMCV00263    Hearing Date: October 19, 2022    Dept: R

The ex parte application is DENIED.  The Court does not see any exigent circumstances.  The sanctions were due in March.  It is mid-October.  The Court is unsure why there has been a delay.  Further, the sanctions will remain outstanding even after the trial—it is an ancillary thing.  Finally, no Court order is needed to order compliance with an order.  There are other ways of enforcement.  The Court is in receipt of the opposition, which raises other issues, including whether the ex parte application was filed before notice was given.  If true, that is, of course, improper.  However, rather than continue the matter, the Court will hear the matter even so.  Defendant ought to suffer no prejudice from that because the application is DENIED.  (Were the Court inclined to grant the application, the Court would feel differently about the procedural problems.)

Defendant also states that the case has settled.  While plaintiff obviously disagrees, that issue could well resolve the sanctions issue entirely if defendant is correct.  That issue cannot be decided on an ex parte basis.

Regarding the potential settlement, if defendant intends to so assert, defendant will need to bring an appropriate motion.  If the matter can only be raised by way of an amendment to the answer or cross-action, then such an amendment should be sought at the earliest opportunity.  This is because if there is an issue of settlement and release, that issue could well affect the scheduling of any trial and it could be that if the claim cannot be adjudicated pursuant to section 664.6 then it may require either a summary judgment motion or a bifurcation.  The Court is not pre-judging the matter; the Court is merely stating that the issue is one that the parties evidently dispute and that therefore must be promptly resolved.