Judge: Mark H. Epstein, Case: 23SMCV01079, Date: 2024-10-07 Tentative Ruling

Case Number: 23SMCV01079    Hearing Date: October 7, 2024    Dept: I

The court is inclined to GRANT the motion to advance the hearing.  In the alternative, the court can continue the trial.  The court is not inclined to continue the MSA.

Plaintiff seeks financial records from defendant’s accounting firm.  The firm has objected based on the tax privilege and other grounds.  The motion was filed on September 30, 2024.  The trial is December 9, 2024.  A motion to compel has to be brought such that it can be heard no later than 15 days before the initial trial date.  Had the court been able to accommodate the normal notice provisions (16 court days of notice), the motion would have been timely heard.  However, the court is dark between October 25, 2024, and November 15, 2024 (and the court typically hears discovery motions on Fridays).  As is hardly surprising, the days following the court’s return are full of motions and thus, although normally the court would hear a discovery motion like this in a timely manner, that is not the case here.  The first date plaintiff could get is after the trial.

Because plaintiff’s motion is timely, the court believes it ought to be heard.  The court can try to advance the hearing, but more likely the court would continue the trial (but not the discovery cut off dates).  That seems to be more reasonable for the parties.  To determine whether that is a viable option, the court will need to get a trial estimate assuming that the MSA is denied.

As to continuing the MSA, plaintiff states that it needs this information to oppose the motion.  The court does not see how that would be.  The motion is based on the notion that the UD complaint was not properly served at all, but even if it were, default was entered before the time to answer or otherwise respond.  If a premature default was entered, defendant asserts, or if the UD complaint was never properly served at all, the judgment is void on its face.  In the court’s mind, the judgment for possession is either void on its face or it is not.  Defendant’s financial condition seems to have nothing to do with that question.