Judge: Mark H. Epstein, Case: 20SMCV01915, Date: 2023-11-08 Tentative Ruling

Case Number: 20SMCV01915    Hearing Date: December 4, 2023    Dept: I

The matter is here for a final status conference.  The court’s FSC order was given on June 8, 2021.   

The court is quite concerned.  According to plaintiff’s counsel, the parties were working toward preparing the FSC documents when they reached a settlement agreement.  Both sides  allegedly agreed to the terms (albeit through counsel).  However, at the last minute, plaintiff contends that defendant pulled out of the deal.  Plaintiff claims to have tried to send FSC materials to the defense for a joint filing although obviously on very little notice.  Defense counsel’s response was to say that there was insufficient time to respond.  Plaintiff filed its documents unilaterally.  Defendant has filed nothing.

The court will discuss with counsel what will be done.  At a minimum, the court is more than a little bit concerned.  A few thoughts.  First, if there was an exchange of emails in which both parties’ counsel agreed to the deal terms, there may be a settlement (if either party wants to enforce it).  It might be enforceable under 664.6 and it might be enforceable only by traditional means.  But if the writing is there, it is not clear that there is anything left to try.  If counsel was not authorized to settle, that could be a question that counsel, the client, and the carrier need to resolve.  On the other hand, if the “settlement” was really something like “this looks good but I need to run it by the client” then it would appear that all there is would be an “almost settlement,” which of course is meaningless. The court will inquire.

If there is no settlement, the court is concerned as to the state of the case.  If the settlement (or almost-settlement) was at the last minute (notwithstanding the court’s warning two and a half years ago), the parties needed to “double-track” so that the matter would be ready for trial.  The court is open on December 11, 2023, and the slot will be wasted if the parties are not prepared.  That is a cost to the court as well as to other litigants who wanted an earlier trial date but could not get it because the court was holding the date for this case.  That sort of misconduct is sanctionable and is very likely to be sanctioned.

If, as plaintiff suggests, plaintiff burned the midnight oil to get done what needed to get done but defendant did not, then the trial might go forward using only plaintiff’s materials.  Plaintiff will be able to call witnesses and the defense can cross-examine, but defendant will be precluded from calling witnesses of its own other than one of its principals.  Plaintiff can introduce exhibits from the exhibit list and any exhibit so introduced is fair game for both parties, but defendant cannot introduce exhibits.  That is the penalty prescribed in the Local Rules where one side does not participate in the FSC process.  Plaintiff also suggests that defendant has engaged in other questionable conduct.

But, of course, that is only one side of the story.  The court has been around long enough to know that there are usually two sides or more.  Defendant should be prepared to explain its side, succinctly, at the hearing.  If there are additional emails or written materials, defendant should be prepared to produce them. 

The court is also concerned about seating a jury.  When cases look like this a week before trial, it usually results in a circus.  The public’s view of the judicial branch is fragile enough so as to cause the court to not want to risk further damage by a trial that is chaotic, especially when jurors are making a tremendous sacrifice to participate.

The court would STRONGLY urge the parties to reconsider the settlement.  A settlement tends to cure all.  But if there is no settlement, appropriate orders will follow.

If the case is actually going to trial on Monday (which is, frankly, unlikely), the court will rule on the in limine motions today.