Judge: Mark H. Epstein, Case: 20STCV23000, Date: 2024-02-16 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: 20STCV23000    Hearing Date: February 16, 2024    Dept: I

The court is inclined to DENY the application.  This case is almost four years old.  It has been set for trial three times and continued; this would be the fourth continuance.

There are three reasons articulated for the continuance.  One is that plaintiff’s expert is unable to be deposed until after the trial is scheduled to begin.  The court will inquire as to how that is possible.  Plaintiff presumably gave the expert the trial information prior to the designation.  Counsel is required to declare under penalty of perjury that the expert will be available and able to give deposition testimony.  How is it, then, that the expert is not available until after trial?  That just makes no sense to the court.  And it is especially odd that this was just discovered yesterday.

The second reason is that defense counsel is otherwise engaged in trial.  The court will inquire as to how that happened.  This was not brought to the court’s attention when the instant trial date was set—or at least the court does not remember that being said.  If nothing was said, then counsel is at fault and will have to deal with the problem.  If the new trial was set after this one was set, the court will need to inquire as to why counsel did not bring the conflict up to the other judge.  Most judges are pretty good about not double-booking lead counsel.  If lead counsel brought it up and was told that the other trial was starting anyway, counsel should consider asking the other judge, ex parte, for a continuance, or, at a minimum, requesting a continuance from this court immediately upon that conflict arising.  But, if the other trial was set after this one, and if counsel did bring the matter up to the other judge who decided to double-track counsel notwithstanding this trial date, and if it just happened this week, the court will take that under consideration. 

The third reason is that the parties would like to continue mediating.  The problem is that the mediation ship has sailed.  The parties are free to elect to arbitrate if they would like, but other than that the court has seen this movie and it knows how it ends.  There will be a continuance, there will be a mediation, but sadly, the parties will not have settled.  The entity left holding the proverbial bag is the court.

The court understands that this places a hardship on the parties here.  But the parties seem to have no understanding at all as to the other side.  The court has about 1000 cases on its docket.  It gets requests to continue quite frequently.  Sometimes, there is truly good cause—medical issues or truly unavoidable or unforeseeable circumstances.  When that happens, the court needs to continue a trial for what everyone wants to think is a short time.  But the court could not continue such a case to March 4, 2024, because that date was filled with this case.  In virtually every week from now until the end of the year, the court has set 4 or 5 trials.  The court will not move one of those trials—where the parties are doing what they were supposed to do—so that this case can take its place because the parties here did not do what they were supposed to do.

The parties will just have to do the best they can, at least unless they can more adequately explain the justification for the reasons they have given (as discussed above).  The court reminds the parties that the FSC is coming up soon and the court expects full compliance with its FSC policies (which, the court also reminds the parties, can be found on line.)  If the parties want to stipulate to extend the expert discovery cut-off to a time closer to trial, they may, of course, do so.