Judge: Mark H. Epstein, Case: 23SMCV01060, Date: 2024-02-08 Tentative Ruling

Case Number: 23SMCV01060    Hearing Date: February 8, 2024    Dept: I

The court is inclined to DENY the motion.  As to summary judgment and the need for plaintiff’s deposition, the court is not sure why it is that such timing came to pass.  Defendant contends that it was unable to take plaintiff’s deposition earlier, but it is never adequately explained why.  Nor does the court understand why plaintiff’s deposition will provide the information needed for summary judgment.  Plaintiff is unlikely to admit that the goods came but he did not pay for them—to the contrary, plaintiff will likely contend that he has paid for everything he received.  That will not help defendant for summary judgment purposes.  If the issue is statute of limitations, the court is, again, unsure how plaintiff’s testimony will be the key to the motion.  If anything, plaintiff is likely to say unhelpful things, not admit to the contrary.  (And if it is admissions one is after, written discovery should have done the trick.)

The only issue that comes close is Wooten’s alleged inability to testify.  Defendant states that Wooten is ill and will still be ill in May but will be better a few months later.  The court does not know Wooten’s illness or its nature, and the court is not asking.  But it is quite the illness that can be known that far in advance but will clear up a very short time later.  The court is open to extending the discovery cut off to the extent necessary to take Wooten’s deposition if it has not already been done to accommodate the illness and preserve the testimony for trial.  And the court is also open to allowing Wooten to testify remotely.  That seems a better approach than continuing the trial.  And the court’s trial calendar will likely not allow for a “short” continuance.

The court notes that it set the case for trial on May 2, 2023, and no one objected at that time.  The court does not understand why all was not done that was needed in the year between trial setting and trial.

The court will discuss the matter further, but absent some compelling issue, the court is not likely to continue the trial and even if it did it would not continue the discovery cut off dates (other than, perhaps, to deal with Wooten’s illness).