Judge: Mark H. Epstein, Case: 19SMCV01960, Date: 2023-10-09 Tentative Ruling

Case Number: 19SMCV01960    Hearing Date: October 9, 2023    Dept: I

At issue is a “clarification” sought by defendant.  This case has been set for trial a number of times.  However, on a number of occasions the matter has been ready to go but the court has been in trial and thus had to delay.  At one point, the case appeared ready to go, but defendant sought a delay because counsel was going on maternity leave.  Plaintiff opposed the length of the delay, fearing that if the case were delayed too long, defendant would cause certain “priority loans” to be repaid to other parties and there would be no ability for plaintiff to recover should it prevail.  The court granted the continuance but ordered that the priority loans (which were made to interested parties) not be repaid absent agreement of the parties or order of the court.  Later, defendant (for good and sufficient reason) needed a further continuance.  The matter is now nearing trial—it is set for February 13, 2024. 

Defendant seeks a “clarification” that the bar on repaying the priority loans does not apply to loans made after November 2020.  Plaintiff opposes saying that the point of the order was to ensure that the entity was not denuded of cash such that any trial victory would be a phantom one.

The ex parte application is DENIED.  Defendant surely may apply for an order lifting the prior order or allowing certain loans to be repaid.  But the papers now before the court do not state the amount that defendant seeks to repay, the effect it will have on the entity, the time by which the loans will be repaid, the timing of the asserted need to have the loans repaid, or the specific consequences (other than vague references to some kind of potential default) of not repaying the loans by a particular date.  The court is not about to shoot from the hip ex parte on this. 

So in terms of a “clarification,” the court is far from sure that the “clarification” defendant seeks is consistent with the letter or spirit of the December order.  To the extent defendant seeks permission to repay the loans or some of them, a better showing will need to be made.  And if defendant wants to do this ex parte, it will need to show the exigency with a lot more particularity.