Judge: Mark H. Epstein, Case: 22SMCV00114, Date: 2023-05-16 Tentative Ruling

Case Number: 22SMCV00114    Hearing Date: May 16, 2023    Dept: R

The court is inclined to GRANT the motion to continue.

This is an attorney lien case (maybe; it is not 100% clear that there ever was an actual lien) in which plaintiff sues defendants for various torts and breach of contract.  In the underlying case Thompson was hit by a car and plaintiff represented her.  She then substituted defendant as counsel.  After the case settled, plaintiff brought suit asserting that the lien was not paid.  A trial date was set.

Since then, counsel representing defendant has been in and out of the hospital and rehabilitation and is still unable to practice law.  Defendant has therefore sought a continuance, but plaintiff objects.

The court initially addresses the evidentiary problem.  Plaintiff notes that defendant’s evidence comes from defendant, not counsel.  Thus, defendant really does not have a foundation to make statements about counsel’s condition; there is no first hand knowledge there.  All of the information comes from things counsel or counsel’s son has told defendant.  That is, it is true, hearsay.  If necessary, the court will CONTINUE the hearing to have counsel confirm that information himself (or have a doctor confirm it).  The court is reluctant to take that step, but if the point is pressed, the objection is valid.

Assuming the court gets past that one, the case becomes easier.  The complaint here was filed on January 24, 2022—about 16 months ago.  Trial is set for October 2, 2023—21 months after the filing date.  Defendant is asking for another seven months.  This case is not so old as to give the court heartburn about continuing the trial for that period of time in light of the medical issues here.  Further, the court can only presume that it has been somewhat harder than usual to do discovery in this case given counsel’s health. 

But that said, this is the only continuance that will be granted on this basis.  The court is very sympathetic to medical issues and will try to accommodate the parties (both parties) if it can.  But there comes a time when plaintiff’s right to get to trial will overcome defendant’s right to have counsel of its choice.  We are now at the envelope.  If more time is needed than this, defendant will need new counsel and defendant will need to make that determination such that it does not need another extension to get the new counsel.  The court will discuss new dates with counsel and set a new trial and FSC date.