Judge: Mark H. Epstein, Case: 21SMCV01968, Date: 2023-03-14 Tentative Ruling

Case Number: 21SMCV01968    Hearing Date: March 14, 2023    Dept: R

The motion to continue trial is GRANTED.  The motion for a protective order is GRANTED.  The request to file a sur-reply is GRANTED.

The case is plainly not ready for trial.  The pleadings are not even settled.  Further, the moving parties raise a good point in that they were not named until December 2022.  Any prejudice that might be caused by the delay is far outweighed by defendants’ need to conduct discovery and the need to settle the pleadings before a trial date is definitively set.  The court will set the matter for a CMC in approximately 60 days, which might allow the pleadings to settle.  (“Settle the pleadings” is a term of art; it does not mean settle the case.  It means to have the complaint and answer on file as well as all cross-actions and answers.  To the extent that was already known, the court apologizes for the explanation; no disrespect was intended.)

The motion for a protective order is also appropriate.  Defendant Kares is InterSolutions’ CEO and he resides in New Jersey.  Other than cross-complainant’s assertion, there is no reason to believe that he has any specific knowledge of anything pertinent to this case.  While InterSolutions is not a mega-corporation, the Apex doctrine applies to smaller companies as well.  The court also notes that if defendants demur to the amended cross-complaint and if that demurrer is successful, the court would lack the power to order a deposition of Kares; that would have to be done by a New Jersey court.  Given that there is no settled pleading yet naming Kares, the court believes that, on balance and given the particular showing here, a protective order is appropriate and the court therefore orders that Kares not be deposed absent further order of the court made on a showing that he has some pertinent information that cannot be gained through another channel.  If such a showing can be made, the deposition will go forward (at least if the court has jurisdiction).

The request for a sur-reply is granted.  Having reviewed the sur-reply papers, the court believes that the briefing has largely devolved into a merits-based series of filings, none of which is really pertinent here.  Thus, the sur-reply does not change the court’s thinking.

Frankly, the court would have denied the request to file a sur-reply.  They are rarely appropriate and this one was not appropriate or necessary.  However, the tenor and tone of the opposition was so over-the-top that the court concluded that the opposition was afraid of what was in the sur-reply, and that is why the motion is granted.  While the request to file a sur-reply is hardly a case-critical motion, defendants managed to snatch defeat from the jaws of victory.  Defendants do not seem to be getting the message the court is trying to send.  They need to stop using inflammatory language in their briefs.  While continuing to use such language will NOT lead to contempt, it will continue to serve the defense very poorly, as the court will be inclined to draw inferences that the language is being used due to a dearth of actual support or logic to defendants’ papers.  The court assumes it is being clear, but it will confirm with counsel that its message is getting across, and the court will use the tools at hand if not.