Judge: Mark H. Epstein, Case: 21STCV36141, Date: 2024-12-02 Tentative Ruling

Case Number: 21STCV36141    Hearing Date: December 2, 2024    Dept: I

The matter is here for a final status conference.  The initial FSC order was given on April 21, 2022, and then reiterated in this court on August 23, 2022.  No FSC papers have been filed.  The court also notes that there is an MSJ set for December 3, 2024, which is less than 30 days before the trial and to which there has been no opposition.  The MSJ was timely filed—meaning that it was filed such that it could be heard on notice more than 30 days before trial—but the hearing date is too soon.  That is likely because it was initially going to be set at a time when the court was dark and got bumped to this date.  In any event, given that there is no opposition but the motion is not compliant, the court has to do something.  The court’s inclination, given that there are no FSC papers, is to continue the trial date and continue the MSJ.  That will give plaintiff an opportunity to oppose it, knowing that it will not be denied on procedural grounds.  That said, the court will discuss this with the parties.  This also will serve as an excuse for the lack of FSC papers, so the court need not discuss imposition of sanctions or the like.  The fault is the court’s regarding the scheduling issues, although in the future the court would advise the party moving for an MSJ to bring an ex parte application to set the MSJ more than 30 days before the trial, continue the trial, or exercise the court’s discretion to hear the MSJ less than 30 days before the trial.  Under Sentry, the moving party has an absolute right to some form of relief, but it is not clear that such is the case if it is not requested.

As for the FSC materials, according to defense counsel, on 11/14/24, counsel sent plaintiff’s new counsel materials, but new counsel did nothing due to a dental emergency.  At present, there are no joint materials.  However, because the matter will need to be continued to allow for the MSJ, the court will overlook the FSC material issue.