Judge: Mark H. Epstein, Case: 21SMCV01627, Date: 2023-04-12 Tentative Ruling

Case Number: 21SMCV01627    Hearing Date: April 12, 2023    Dept: R

On the ex parte, the court reviewed the application last week.  Neither side has covered itself with glory here.  There was a stipulation (after the court’s order) that provided that this particular deposition would occur in Orange County at the end of September.  Plaintiffs took the deposition off calendar.  Normally, they have the right to do so for purposes of picking a better day.  But that is not the case here.  Rather, in this case, the stipulation was an order of the court.  Plaintiffs lack the unilateral right to change a court order.  And the reason it was a court order was precisely this: because the parties were having extraordinary difficulty scheduling depositions.  It is that difficulty and motion practice that led the court to issue an extraordinarily detailed order concerning depositions that was expressly designed to eliminate precisely this problem.  Sadly, although the schedule was created, motions continued.  And, despite warnings from the court not to continue to bring motions because the parties could not agree on a deposition schedule, here we are.  In any case, plaintiffs took the depositions off calendar.  They later re-noticed the depositions.  They were able (apparently) to reach an agreement on the date, which is progress.  However, plaintiffs also unilaterally changed the location from Orange County to Riverside (where plaintiffs’ counsel’s office is located).  Plaintiffs had no right to change the location unilaterally.  Orange County had been part of the stipulation and order that had been adopted. 

That said, defendants or counsel for the witnesses then should have raised the issue.  They could have done so by formal objection, but the court would have been satisfied if they raised it early by way of a less formal email.  That would have led to an early meet and confer that would have led to a likely resolution.  According to plaintiffs, however, defendants not only did not raise the location issue, plaintiffs’ counsel states that they confirmed that they would attend the Riverside deposition until three days before the event, at which point (according to plaintiffs’ counsel) counsel not representing the witnesses unilaterally said that they insisted on Orange County.  Defendants, for their part, deny ever having agreed to Riverside or done anything to lead plaintiffs to believe that they would agree, although they have not gone so far as to say that they raised the location issue until three days before the scheduled date.  Of course, as seems to happen too often in this case, rather than compromise everyone dug in, preferring litigation to anything that even resembles cooperation.  (Counsel for Salimpour is not included in this discussion directly.  Her client was not the person being deposed and she therefore had no direct control over the deposition.)

At the last hearing, the court asked the parties to submit a joint packet of the actual communications on point.  The court instructed that anything that either wanted to be in the packet should be included so that it could be done without any dispute.  The deadline to file was April 10, 2023, but the court has not yet received those papers.

For reasons that the court cannot quite understand, things that normally go off without a hitch seem to snag here.  Even when the court issued a specific order to deal with depositions that, frankly, was incredibly detailed and should never have been necessary, these problems arise.  We are done.  Both parties seem to be at fault, and the burden will lie on them both.

The court will discuss the appropriate order at this point with counsel who cannot seem to cooperate on things that ought to be simple.  The court’s leaning is to say that plaintiffs’ counsel was led down the garden path by the defense here.  At least insofar as the court can tell (given that the court does not have the filing that was due on April 10, 2023), plaintiffs confirmed the date and location.  While defendants could have insisted on the Orange County location, what they cannot do is confirm the Riverside location and then change.  And the court is puzzled by the fact that the counsel raising the issue does not represent either witness.  The court notes that its evidence in this regard is plaintiffs’ counsel’s declaration, and not the one that was filed to support the ex parte application.  Rather, it is the declaration in support of the motion to compel.  So the court is not overwhelmed by the evidentiary record here.  But defense counsel has not denied (under oath) what plaintiffs’ counsel has said.

Plaintiffs’ counsel also, almost as an afterthought, noted that he had mis-calendared the hearing date, believing it to be April 21, 2023 (when another motion is in fact set) rather than April 12, 2023, which is why the application under 437c(h) is untimely.  Counsel has admitted the mistake and requests that the client not be penalized for that error.

The issue is clearer as to the motion set for April 21, 2023.  The court will DENY the ex parte as to that motion unless plaintiffs counsel can state how the depositions could affect that motion.  The April 21, 2023 motion is based on the statute of limitations.  According to the moving papers, the allegedly defamatory statements were made more than a year before the complaint was filed, which puts them outside the statute of limitations.  Because the witness who confirms that the statements were made is Edalat, who is with plaintiffs here, and the target of the statements was Karpinsky, also a plaintiff, it is hard to see how these particular depositions could affect the motion.  That motion remains on calendar.  The court will discuss the opposition, but absent some showing as to how the 437c(h) motion is proper as to that particular motion, it would seem that there is no basis for a continuance.  The court has not yet worked up the May 5, 2023 motion, so the court might inquire as to that.