Judge Mark H. Epstein, Case 21SMCV01627 2023-04-06 Tentative Ruling

Judge: Mark H. Epstein, Case: 21SMCV01627, Date: 2023-04-06 Tentative Ruling

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Case Number: 21SMCV01627 Hearing Date: April 6, 2023 Dept: R

This is a troubling ex parte. Plaintiff seeks more time because plaintiff has still be unable to depose key witnesses. At the same time, the application to continue the hearing is made late due to a calendaring error by counsel that is mentioned only at the tail end of the brief.

The court is very concerned. The evidence that plaintiff seeks appears to meet the standards for an extension under CCP 437c(h). While defendants state that the summary judgment motion is purely based on the statute of limitations, that is just not a true statement of the motion (or at least it is not a fair statement as to the 4/12/23 motion). The motion is based in part on the SOL, but that is only one ground of many. Defendants also state that the depositions are of defendants’ people so how could it possibly help plaintiffs? The law has gone beyond the “take my word for it” phase. True, some of the point of a deposition is to learn the other side’s case, but it is also to gain helpful concessions if possible. The court is certainly not prepared to say that plaintiffs will gain nothing from the depositions; they are entitled to try. And defendants state that plaintiffs have not been diligent. It is hard for the court to agree. Plaintiffs have been seeking these depositions for a long time, but defendants have been largely responsible for the various delays. Whether it is excuses based on COVID fears, scheduling, travel, “priority” of order, medical issues, or what have you, defendants have simply not been able to show up for the depositions in question. (Defendants suggest that the Salimpour deposition was in fact completed. If that is true, the court will have some pointed questions for plaintiffs as to why the inability to take that deposition was front and center in their application.)

The bottom line, though, is that the court has had just about enough of this squabbling. Defense counsel does not get to dictate time and place of the deposition, and at this point, the court can only infer that defense counsel will always find an excuse not to allow the deposition to go forward. At least that is the strong inference the court is now drawing if plaintiffs are correct about whether the depositions have gone forward. One option that the court is seriously considering is to extend the hearing such that the opposition brief is due Monday at noon but noting that the court will entertain an argument that it should infer that the reason defendants have not allowed the depositions to go forward is because they know that the information that might plausibly be adduced will be favorable to plaintiffs. If such an inference is adopted and plaintiffs can articulate a fact or facts that would defeat the motion that could potentially be obtained from the witnesses in question, it could well be alone sufficient to defeat the motion. (That does not mean that the inference would be made at trial; by then the deposition might well have occurred and, in any event, the court is not the fact-finder; it is for the fact-finder to draw inferences at trial.)

As to the motion to compel, that is set for a later time and the court will deal with the merits then.

For what it is worth, the court notes that there are three separate summary judgment motions on calendar; one for April 12 (which will be continued),one for April 21, and one for May 5. That is odd, but the court has no further comment on that oddity at this time. It might later.