Judge: Mark H. Epstein, Case: 21SMCV01921, Date: 2024-12-05 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: 21SMCV01921    Hearing Date: December 5, 2024    Dept: I

The application to continue the trial is DENIED.  This case has been pending for approximately three years.  The court’s original FSC order was given on March 14, 2023.  It set a mediation completion date of October 15, 2023, and a trial date of June 17, 2024.  In April 2024, the parties sought a continuance because they had not mediated the case and were not going to be ready for trial.  On 4/17/24, the court expressed concern and stated that absent a showing of extraordinary cause, the trial would likely not be moved, but at a minimum, the court would want to see a showing of diligence.  On May 3, 2024, notwithstanding the court’s prior statement, the court continued the case.  That was due to the parties’ request, but also because the court’s trial calendar was such that the court was likely to be in trial anyway.  The court was concerned that the parties stated that the need to continue the case was in part because discovery had not been completed.

The attorney defendants seek to continue the trial again.  They have changed counsel, and new counsel—who presumably took the case at some undisclosed point but knowing of the trial date—are not ready.  They are still looking over the file to see if there are viable legal issues they might want to raise.  But far more troubling, apparently the attorney defendants have still taken no depositions.  Given that this was the reason for the last continuance, the need to complete discovery is not justified; rather it is due to a lack of diligence.  Deciding not to do discovery is not a ground for a continuance.  If that was the fault of prior counsel (and the court is not making any findings in that regard), then it was.  But it nonetheless is a lack of diligence, not a ground to continue the trial again.  Counsel also suggests mediation is appropriate.  The court set a mediation completion date that is over a year ago.  The court commented on the lack of a mediation back in April.  The fact that the parties have thus far elected not to mediate is a tactical choice they made; it is no ground to continue the motion.

In short, the moving party has shown no diligence in getting ready for trial.  That is also concerning because the court admonished the parties of the need to be proactive back when the original FSC order was given.  No grounds have been advanced that would justify continuing the trial.  While the court recognizes that this may make it harder to defend the case, that is not a ground to continue.  Prejudice resulting from a deliberate choice is not prejudice.  The motion is DENIED.  The court expects full compliance with its FSC order.  If the parties have not started preparing the FSC documents, they are behind the curve and ought to start forthwith to avoid sanctions on both the parties and their counsel.

The court notes that it wrote this before reading the opposition.  The court has now read the opposition, which confirms the above views.