Judge: Mark H. Epstein, Case: 23SMCV02250, Date: 2025-01-07 Tentative Ruling

Case Number: 23SMCV02250    Hearing Date: January 7, 2025    Dept: I

The motion to continue is DENIED.  Plaintiff contends that discovery had been started but is not completed.  Further, plaintiff’s counsel’s previously scheduled surgery had to be postponed due to an illness and is now scheduled for January 8, 2025.  Counsel states that the surgery and recovery time will impede the ability to get to trial.  Plaintiff also contends that only after an expert inspection on June 22, 2024, did plaintiff discover additional damages of over $1 million due to improper grading and the like.    According to plaintiff, the inspection would have occurred earlier but for defendant’s cancellation twice on the eve of the inspection.  Plaintiff notes that it is filing a motion for leave to amend to add new allegations, and the hearing is set for later this month.  In opposition, defendant states that the delayed inspection is plaintiff’s fault and that plaintiff has not been diligent.  For example, even taking the June 2024, inspection as potentially reasonable, plaintiff has had the results of the inspection since then and there is no explanation for the delay in preparing the case for trial or to prepare the experts for deposition.  Further, the parties’ experts met, according to defense counsel, back in October 2024, but still the motion was not made until December—and the meeting would have been earlier had plaintiff provided the defense with plaintiff’s expert’s contact information.  Defense counsel also claims unfairness in that plaintiff took defendants’ expert’s deposition months ago.  In any event, defendants note, expert discovery is nowhere near the cut off, and there remains lots of time to get things done.  In short, the defense position is that there has been plenty of time to get the case ready for trial and there is no need to delay further and any time crunch is due to a lack of diligence.  As to the knee surgery, defendants argue that there is still lots of time.  The surgery can go forward and counsel can recover and the case can still be ready for trial.  Finally, defense counsel does not believe that there is good cause to continue due to any supposedly newly discovered issues because the issues have been plain since at least June.

Trial is currently scheduled for March 17, 2025, and that date was set in November 2023.  That means that the case, filed in May 2023, will be almost two years old by the time of trial, and that there will have been 15 months between the time the trial date was set and the time of trial.  In this relatively straightforward matter, that is ample time.  The court is not aware of any specific discovery that plaintiff seeks to do that it cannot do in a timely fashion.  Absent such a showing, there has been no demonstration of diligence or cause to continue the trial.  That said, if there are complications from the surgery or if the surgery really causes plaintiff to be unable to be ready for trial, the court is open to a continuance upon a real showing of need.  As to plaintiff’s counsel’s busy schedule, everyone has a busy schedule.  There has been no showing of an actual conflict or why this case should be viewed as one having lower import than plaintiff’s other matters.

That said, the court expects defendant and defense counsel to be cooperative in discovery.  The court will not be sanguine should plaintiff seek reasonable discovery from the defense only to have it thwarted or slow-walked due to counsel’s schedule.  The court will take defense counsel at face value that the defense wants the case to go to trial as scheduled.  That will required defendant to be cooperative.  Right now, plaintiff has not articulated any specific discovery being sought that is being unreasonably delayed or refused due to defense counsel.

The court notes, of course, that trial continuances are disfavored and require an affirmative showing of good cause.  (Rule of Court 3.1332(c).)  The court also notes that it has almost 1200 cases on its docket and it is growing by 20 each month.  The court is currently setting initial trial dates 20 months out from the CMC, and even then the court is assuming that 93% of the cases settle or otherwise resolve.  If the court continues this case (at least unless it continues the case to September 2026), it means that it will have to bump another case where the parties have been diligent.  The court sees no justification in doing so, or at least none has been shown.

The court might feel differently if there were a specific showing of discovery that needed to be done coupled with a showing of diligence as to why it was not done earlier and why it cannot be done in the time remaining.  But there is no such showing at present.