Judge Mark H. Epstein, Case Number: 20SMCV01909, Date: 2024-10-11 Tentative Ruling

Judge: Mark H. Epstein, Case: 20SMCV01909, Date: 2024-10-11 Tentative Ruling

If the parties wish to submit on the tentative ruling and avoid a court appearance on the matter, the moving party must contact the opposing party and all other parties who have appeared in the action and confirm that each will submit on the tentative ruling. Please call the court no later than 4:30 p.m. on the court day before the hearing, leave a message with the court clerk at (310) 260-3629 advising her that all parties will submit on the tentative ruling and waive hearing, and finally, serve notice of the Court's ruling on all parties entitled to receive service. If any party declines to submit on the tentative ruling, then no telephone call is necessary, and all parties should appear at the hearing.

Case Number: 20SMCV01909 Hearing Date: October 11, 2024 Dept: I

Court is confused. The motion was filed and served on 10/8/24 according to the docket and DBH. 75 days after that is December 22, 2024, which is a Sunday, meaning that the matter could not have been calendared for hearing on December 23, 2024, at the earliest. That is 29 days before the hearing. The court hears summary judgment motions on Tuesdays and Thursdays. Accordingly, the next slot was a week later.

The court would be more sympathetic were defendant to place the blame where it belongs: on itself. Defendant was brought into the case in June 2023—about 19 months before the trial. Yet the discovery was not served until 13 months later, in July 2024. Responses were not timely served and a motion to compel was brought. The motion to compel was heard 32 calendar days later and granted. Responses were served pursuant to the order on September 23, 2024.

The real problem here is not the court’s “congested calendar.” That is indeed a problem in the courts, where sometimes it takes a year between the time a summary judgment motion is filed and when it is heard. This court, however, got the motion calendared 8 calendar days after the statutory minimum time, or 83 days instead of 75. The real problem is that defendant sat on its hands for over a year before actually taking the discovery and then waiting until after the last minute to file. The simple fact is that the motion is untimely because of when it was filed, not the court’s docket. Mistakes happen, and it is a fair motion to request that a motion filed a day late ought to be heard even so. But it would be better for counsel to frankly admit that it played a dangerous game by waiting until what it thought was the last possible moment to bring the motion and then finding out that the motion is too late because of a calendaring error by counsel, not congestion by the court.

Because the motion was untimely, Sentry does not apply. That case holds that where a timely motion for summary judgment or adjudication is filed, a party has the right to have it heard notwithstanding the court’s busy calendar. That case says nothing about the court needing to rearrange its calendar due to an untimely motion, as is the case here.

All of that said, it appears that the gist of the motion is that DBH has nothing to do with anything. It was not the tenant of the lease underlying the complaint. The tenant’s owner, Taite, later sold his business to Discovery Practice Management (DPM). That was in 2018. The sale was for cash. The moving party’s contention is that DPM and DBH are separate entities, and even were that not the case, DPM is not the tenant’s successor nor Taite’s successor. Indeed, DBH states that the tenant was not even an entity that was purchased in the transaction.

That is not a weak motion. Of course, whether it will survive the opposition is another question entirely, but this is not a motion that screams out “DENY ME.” Given that, the court believes that it makes sense to allow the motion to be heard. If there is merit to it, then there will likely be no trial (since this might be the last defendant left in the case). If the motion is denied, then the trial goes forward.

The court is not inclined to continue the trial. Given the court’s trial calendar (which is congested) a continuance would likely be to May 2026. The request that the court hear the motion on less than 75 days’ notice is ill-taken and it was improper for defendant to suggest it. Doing so is per se reversable error, and counsel ought to know as much. It is troubling if counsel does not know that, as the law is clear. The court will therefore keep the current hearing date and, in its discretion, allow the motion to be heard less than 30 days before trial. The ex parte application is therefore GRANTED. But defense counsel is admonished that its conduct in this matter leaves much to be desired and is likely sanctionable, although the court will not impose sanctions. The only reason that the application is granted is that if there is truly no question but that this entity has nothing to do with anything, then a trial is a waste of time, not only for the court, but for the fourteen or so jurors that will have to volunteer their time to hear the matter. It is unfair to them, and denigrates the court system, to make them sit through such a trial where there are no disputed facts (if, indeed, such is the case). The court warns the defense, though, that if there is a triable issue of fact here of which the defense ought to know, it will tell the court everything the court needs to know about defense counsel and its ethics.

The court warns the parties that they ought to assume that the motion will be denied when deciding whether to prepare FSC materials. The denial of the motion will not be viewed as good cause to fail to file FSC materials in a timely manner.