Judge: Mark H. Epstein, Case: 22SMCV01562, Date: 2023-04-28 Tentative Ruling

Case Number: 22SMCV01562    Hearing Date: April 28, 2023    Dept: R

The application to continue the trial is GRANTED.

While the court is concerned that plaintiff has a right to go forward with the trial and defendant’s own conduct ought not deprive plaintiff of that right (which may well be what happened here in that defense counsel withdrew), a couple of facts remain.  The first is that the matter is not really ready for trial.  The court understands that plaintiff’s counsel FSC materials starting on April 17, about a week and a half before the FSC materials were due.  There is no indication that anything had been sent while defendant had counsel.  But be that as it may, going forward without real FSC materials in a jury trial is a recipe for disaster.

Even with that, the court is not terribly sympathetic to defendant’s predicament.  The motion to be relieved as counsel was filed on March 10, 2023.  There is no indication that defendant did much of anything to find new counsel until relatively recently.  The court would have been much more sympathetic had defendant retained counsel three weeks earlier than he did.That said, though, there are other issues.  Plaintiff has not deposed defendant.  Plaintiff sent out a deposition notice, but the deposition was scheduled for a time after the motion to withdraw was to be heard, meaning that it was calculated to be when defendant would have to appear as a self-represented litigant.  Defendant refused to do so, which is understandable, to a point.  When new counsel was retained, new counsel stated that he would not be prepared to defend the deposition on the scheduled date so he refused to allow his client to appear.  Plaintiff now wants to depose defendant on Tuesday, May 2.  While the court will not issue an order on a motion not yet heard, as a preview to the court’s general thinking, the court will be inclined to allow the deposition to go forward before the cut off or on such other day as to which the parties may agree or extend the cut off for this purpose.

But all of that pales compared to one glaring problem.  The court is currently engaged in trial and likely will be engaged in trial on May 8 and for at least that entire week and possibly the week after.  That means that this case will have to trail from day to day perhaps for weeks.  The court does not believe that requiring the parties to do so is fair or appropriate.  Therefore, the court is inclined to GRANT the motion and continue the trial to June 12, 2023 at 10:30.  The final status conference will be held on June 5, 2023 at 8:30.  The court expects full compliance with its FSC orders, including a good faith estimate as to the total number of hours.  The time to file in limine motions has come and gone, but the court will nonetheless allow additional motions to be filed to the extent that they involve issues that could not have been timely anticipated.

The continuance is predicated upon defendant's paying rent through June 30, 2023 (that means May and June--to the extent that there were disputed amounts that were allegedly due before then, the court makes no order) within 5 calendar days to account for the delay.