Judge Mark H. Epstein, Case 19SMCV01709 2022-10-19 Tentative Ruling

Judge: Mark H. Epstein, Case: 19SMCV01709, Date: 2022-10-19 Tentative Ruling

Case Number: 19SMCV01709 Hearing Date: October 19, 2022 Dept: R

This is a continuation of the ex parte hearing on Monday, October 17, 2022.

The case is in disarray. There is enough debate to go around as to fault for that, and, frankly, the Court does not want to discuss it. What the Court does want is the following:

On Monday, October 24, 2022, Tenser on the one hand and the other parties on the other hand will each submit a statement as to the status of service of the pleadings. The Court would like to know, as to the cross action, who has not been served and who has been served. As to each party served, the Court would like to know the status of the response, meaning: (1) if the time has not yet expired to answer or otherwise respond to the cross-complaint, when will it expire; (2) if a responsive pleading has been filed, what was the responsive pleading and has it been filed; (3) if Tenser is awaiting an acknowledgement and receipt, then when is that due? Before filing, the parties will meet and confer and attempt to agree on at least this much.

The Court expects that the parties will work reasonably to resolve any service issues. Cross-defendants are, of course, not being ordered to waive any rights they might have. But the Court does note that the Court far prefers to minimize and eliminate service of process disputes. The Court would like to await going forward until all the parties have been served. But if a party is avoiding service or deliberately making service more difficult the Court will go forward while that gets worked out, but the Court gives fair warning that it will not be terribly sympathetic to scheduling difficulties that such a party might have with any dates that are set before that party appears. A party requiring strict compliance with the Hague Convention will not find a terribly empathetic court if the trial is scheduled at the same time as a pre-planned vacation or even a Board of Directors meeting.

As to pleading motions—demurrers, motions to strike, and Special Motions to Strike—the Court would like defendants to coordinate their efforts. There is no reason the Court can discern why it must deal with motion after motion when a coordinated process can be achieved. The Court would like the format to be one major brief that raises all of the common issues, and then short other briefs by other parties who join in the main brief but have other issues that must be raised. Tenser’s opposition should follow form, as should the replies. The point is to minimize the repetition and burden on the Court and, frankly, on all parties. And if a forest is saved in the process, so much the better.

In short, many of these motions are redundant, and the Court needs to bring order to chaos. The parties’ seeming resistance to that effort is puzzling. (That said, the Court has some sympathy for cross-defendants’ argument that some of this seems to be an effort by Tenzer to avoid his failure to file opposing papers to certain motions. His explanation at Monday’s hearing was not convincing. But, as the Court said at that hearing, the Court would far prefer to allow all to be heard and then rule than to make a ruling where what could be important arguments are not heard.)

The Court suggests that one potential option is the following: all aspects of the case other than service and response will be stayed pending all parties being served and having responded by answer or otherwise. The Court looks with disfavor on defaults sought immediately after the time to respond is over. The Court also tends to look with disfavor on claims that demurrers that are only slightly late ought to be rejected on timeliness grounds where there is no prejudice and the same issue can be brought by way of a motion for judgment on the pleadings, and the Court is far more likely than not to exercise its discretion to hear a pleading motion if there is a reasonable dispute as to timeliness. Once all parties have been served and appeared (or specially appeared if a party believes that the Court lacks personal jurisdiction), the parties can discuss a briefing schedule to allow any pleading or jurisdictional motions to be heard in an efficient manner as described above.