Judge: Mark H. Epstein, Case: 20SMCV01331, Date: 2023-05-18 Tentative Ruling

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Case Number: 20SMCV01331    Hearing Date: May 18, 2023    Dept: R

The court is inclined to CONTINUE the hearing to allow Eric Binder’s deposition to go forward.  Mr. Binder submitted a declaration in support of the motion.  The court is not comfortable ruling on a motion based in part on his declaration without giving plaintiff an opportunity to depose him.  The court has reviewed the declaration regarding this deposition.  The court will discuss with counsel when the deposition will be completed.  The court is aware of the pending trial date.  Given that date, it is likely that the court will hear the MSJ at the final status conference.  If the MSJ is granted, of course, the trial date will be vacated.

While the court appreciates that this is not convenient for either party (especially the defense, which hopes to avoid a trial entirely), the court has no option.  The court believes that plaintiff ought to have the chance to depose Mr. Binder.  Defense counsel, knowing that his declaration was included in the evidence, should have done whatever was necessary to ensure that his deposition was taken well before the opposition was due.  Reading the declaration from plaintiff’s counsel, it sounds like the past discovery behavior continued.  In short, defense counsel could have avoided this problem, but chose not to do so.  Counsel will not be heard now to complain of the inconvenience or expense.