Judge: Mark H. Epstein, Case: 20STCV03819, Date: 2022-12-12 Tentative Ruling
Case Number: 20STCV03819 Hearing Date: December 12, 2022 Dept: R
The ex parte application to continue the trial is
CONTINUED TO 12/13/22 AT 9:00 AM for the reasons discussed below.
The first is that defendant recently learned of two material witnesses that plaintiff failed to disclose. Defendant contends that he needs time to depose them before trial, but that the discovery cut off has (essentially) come and gone. This would be a good reason to continue if defendant had made an adequate showing. But that would require some explanation as to who these witnesses are and why they are important as well as some showing that plaintiff was aware of them but failed to disclose them in discovery (as opposed to counsel’s unadorned statement to that effect). If plaintiff was not aware of them, then there is no fault with plaintiff, but a continuance might still be in order if defendant could establish diligence in terms of the reason for the late discovery.
The second is that plaintiff has text messages that she failed to produce. The problem here is that the text messages are between her and defendant. Plaintiff does need to produce those messages, and right away. But by definition, they are messages that defendant received. If defendant also has a copy of them, it is hard to see why they warrant a continuance. At a minimum, defendant was presumably aware of them (having received them when they were sent). A far better explanation is needed to connect these texts to a reason why the case has to be continued.
The third reason is that defendant needs to depose DOE in the related case. Defendant states that DOE’s counsel will not allow her to be deposed more than once in the two related cases. There are problems here as well. First, that is not DOE’s counsel’s choice to make. Whether DOE is deposed twice is up to the court, although the court presumes that what DOE’s counsel really said is that DOE will not be deposed more than once absent court order. Second, and more troubling, defendant’s link between the deposition and the need for a continuance is that he is not ready to depose DOE at present because he needs to obtain some additional discovery in the DOE matter before taking the deposition. That is a good-sounding reason, and frankly, it is the best developed reason on this record. The court well understands why defendant would not want to risk not being able to depose DOE properly, and given the nature of these cases, the court might well order that DOE not be deposed more than once. If that is the situation, it does put defendant to a Hobson’s choice not of his making. The problem is that defendant states that he has noticed DOE’s deposition three times already. They did not go forward for reasons that are not defendant’s fault. (The court assumes this means that there were scheduling problems attributable to DOE or her counsel.) The court does not understand how defendant could notice DOE’s deposition not once but three times if he is not ready to take the deposition. Absent some explanation, then, the DOE deposition does not justify a continuance.
On this record, the motion must be DENIED. However, if defendant can better explain the issues discussed above, the court might be of a different view. The court notes that there is a discovery motion on tomorrow’s calendar. Therefore, the court will continue this application to that time. Defendant may, no later than 1:30 today, file and serve electronically a supplemental declaration (containing admissible evidence only) addressing the above. Plaintiff may file a response no later than 4:30 today. The court requests courtesy hard copies of any such documents. On this record, though, the motion would be DENIED.