Judge: Mark H. Epstein, Case: 23SMCV00079, Date: 2024-08-22 Tentative Ruling

Case Number: 23SMCV00079    Hearing Date: August 22, 2024    Dept: I

The court is frankly baffled that it was not until March 2024, that plaintiff learned that the defendant was driving while employed.  One would have thought that defendant’s employment status would have come up almost immediately—certainly in the “first round” of written discovery.  There was no showing made by the plaintiff that such is in fact the case.  Of course, it might be that the written discovery was propounded that would have led to that information but defendant failed to answer accurately, which would mean that the fault is with the defense, not the plaintiff.  But otherwise, this is a problem.  (For example, form interrogatory 2.11 asks the defendant directly whether at the time of the incident the defendant was acting as an agent or employee of another.  That means that either plaintiff did not propound the form interrogatory, defendant lied when answering it, or plaintiff then waited a year before naming the new defendant as a DOE and is being less than forthright in the instant application as to when plaintiff learned of this fact.)

That said, the court must agree that it is unfair to require defendant Tuff Kuts to try the case less than three months after appearing assuming that it had no inkling of the case until it was sued in March of this year.  

The court is unhappy.  If a decent explanation can be given by plaintiff, then the court will be forced to grant the motion, but the court is likely to accord no special status to it under the circumstances.  That means the court will decide whether the case ought to have some trial setting priority or simply go to the back of the trial line.  In either case, the matter will not be continued again.  But if this case cuts the line, the parties need to be aware that they will have last priority on the calendar, meaning that if any case—even a newer case—is ready for trial, that case will go to trial and this case will be continued.  Under no circumstances will this court displace a case where the litigants have been diligent for a case where there is at least some reason to suspect that the litigants were not diligent.  If plaintiff cannot adequately explain the delay, the court would be inclined to DENY the motion.  If that means that Tuff Kuts has to be severed, then that is what it means.