Judge: Mark H. Epstein, Case: 22SMCV01872, Date: 2024-04-05 Tentative Ruling

Case Number: 22SMCV01872    Hearing Date: April 5, 2024    Dept: I

The court is inclined to DENY the application to continue the trial.  The reasons given are a scheduling conflict and the fact that plaintiff very recently saw a  new doctor and was busy on the day scheduled for the defense medical examination.  That is not really good cause.  The trial has been set for a year.  Plaintiff’s decision to go to a new doctor a month before trial and then to be too busy to attend the defense medical examination is a problem of her own making.  The other issue is that plaintiff has changed counsel and new counsel is busy on the day of trial.  But that, too, is a problem of plaintiff’s making.  She is, of course, free to change counsel, but new counsel needs to be available to try the case.

A word on the situation.  The court has 1000 cases on its docket.  All of them want trials.  The court is now setting initial trial dates about 18 months from the date of the CMC, which is itself often 6 months after filing.  The court is currently working on the assumption that 11 out of 12 cases will settle or resolve.  That is probably realistic, but it gives the court no breathing room.  The problem with continuing cases is that it has the effect of bumping a case where the parties have truly been diligent, which is not fair to them.  Or it has the effect of creating a hole in the court’s calendar, which results in even longer delays.  Accordingly, while the court used to give an initial continuance almost reflexively, it just no longer has that luxury.

Plaintiff will need to make herself available for the defense medical expert examination very quickly or she will likely have a hard time getting the new damages before a jury.  If the case is important enough to try, it is important enough for plaintiff and her counsel to find time in their schedules to try it.

The court will hear argument, but the primary issue that could give rise to the court reaching a different conclusion would be that there was some dramatic and unforeseeable change in plaintiff’s condition that caused her to see a new doctor so close to trial and an affirmative showing that there would be no prejudice to the defense.  Even then, plaintiff may need to be prepared for a very long continuance—perhaps the better part of a year or even longer.