Judge: Mark H. Epstein, Case: 22SMCV01918, Date: 2024-04-02 Tentative Ruling

Case Number: 22SMCV01918    Hearing Date: April 2, 2024    Dept: I

The court is inclined to ADVANCE the motion to continue trial to today and hold the hearing today.  On the merits, the court is inclined to DENY the motion to continue.

The parties submitted a stipulation to continue the trial date.  The stipulation was submitted on February 22, 2024, but was denied without prejudice to allow the parties to make a showing of diligence.  Defendant has now submitted a motion that the defense claims establishes cause.  The court must disagree.

A general word to begin.  Motions to continue are disfavored.  That is not to say they are never granted, but they are disfavored.  Further, this court has about 1000 cases on its docket and they all want trial dates.  The court is presently setting 6 per week, which means the court is counting on 11 out of 12 to settle or resolve.  That’s about right historically, but the court notes that its calendar is overbooked.  When the court had 400 or 500 cases on the docket, the court had an informal practice of giving a first continuance of 90 days or so if the parties requested.  There was flexibility on the docket so the court could be accommodating.  But that is no longer the case.  The court has assigned trial slots and it did so well in advance.  The fact that this case is set for trial on April 22, 2024, means that other cases could not go on that date.  Seeking continuances is therefore not fair to the court or to other litigants.  That is why good cause is required.

Here, defendant notes a few things.  First, this would be the first continuance, and that favors a grant.  Second, the case is not that old.  It was filed on October 13, 2022, so even with a continuance, it would go to trial within 2 years, which is not overly long.  That, too, favors granting the motion.  But it stops there.

Defendant notes that the parties tried to settle the case on March 19, 2024, through mediation but were unsuccessful.  The only reason the mediation took that long was because the defense did not agree to mediate at the CMC.  The court asked about mediation, and plaintiff was willing to mediate, but the defense was unwilling to commit.  Had it committed, the court would have set a mediation date in January 2024, which would have meant that the parties could have mediated and, if unsuccessful, still have been ready for trial.  The delay is the fault of defendant, or maybe both parties, but is hardly unforeseen.  Everyone knows that the risk of mediating at the last minute is that if the mediation fails, trial is upon you.

The second reason given for the continuance is that the parties have not completed discovery.  Written discovery appears to be done, but only one deposition was taken, defendant has not conducted a medical examination, and it would surprise the court to learn that experts have been exchanged.  But other than showing that the parties did not do what they were supposed to do, the court sees no diligence here.  There is no explanation as to why it is that discovery is not complete (the discovery cut off having come and gone).  Indeed, by the date of mediation the discovery cut off had come.  The court is left with the conclusion that the parties (or at least the defense) elected not to give proper attention to the case hoping it would settle and counting on a continuance if it did not.  But that is not diligence; it is something else.

Defendant suggests it will be prejudiced if a continuance is not granted.  The defense does not understand the concept in the same manner as does the court.  Prejudice is something that is to be avoided because it is the result of something that is not the fault of the party being prejudiced, not because it is the natural consequence of a deliberate act.  Here, defendant surely knew it was not conducting the needed discovery and waited until the last minute to attempt to settle the case.  The obvious consequence is that if mediation was unsuccessful, the parties would have to go to trial without the benefit of full discovery.  That is not prejudice.

In short, the court sees no diligence by the parties that would justify a continuance.  That said, there are five trials currently set for April 22, 2024.  The court has no knowledge of the status of four of them.  The fifth is uncertain.  The plaintiff has sought additional discovery based on a claim of a recent discovery that the defense hid information earlier in the case.  The defense denies any such thing.  If plaintiff is correct, the court might well grant additional discovery, which would have the effect of delaying the trial.  On the other hand, if the court sides with the defense, then this case will go forward.  This case will have priority over the case now at bench.  However, the court will not know one way or the other until the week before.  If another case answers ready for trial, the court will continue the instant case to a later date and consider re-opening discovery on a limited basis (although the court will not allow a summary judgment or summary adjudication motion). 

If the motion to continue is denied, the court reminds the parties of the final status conference and trial guidelines that can be found on line.  They filing requirements are extensive and if the parties have not started the process of preparing those documents, they will need to put in great effort between now and the filing date.  It would be a bad idea to engage in “self help” by not filing those materials on time in an effort to force a continuance.