Judge: Mark H. Epstein, Case: 23SMCV03520, Date: 2024-04-09 Tentative Ruling

Case Number: 23SMCV03520    Hearing Date: April 9, 2024    Dept: I

The court has not imposed the sanction of striking the answer—it has only set an OSC.  The court will view the ex parte application as a response to the OSC and the court believes it is sufficient.  Assuming defendant or counsel appears at the next hearing, the court will discharge the OSC.

The first CMC was held on 1/29/24.  Plaintiff appeared but defendant did not apparently because counsel had not signed in early enough..  The matter was continued and the court issued an OSC.  The next hearing was March 28, 2024, and the defense was absent again, although plaintiff was present.  This was due to an administrative error.  It was only then that the court actually imposed the sanctions.

The court has reviewed the declaration.  In light of the declaration, the court is satisfied that the failures to appear did not arise from improper motive—they were honest mistakes that are often made even by the very best of counsel.  That said, though, the purpose of the sanctions was to compensate plaintiff’s counsel for the fees incurred by appearing twice for hearings that could not go forward because defense counsel was not present, not really to punish the defense.  The error is hardly a mortal sin, but the burden of it should fall on the party that was not responsible for the problem. 

The court will therefore CONTINUE this ex parte to the CMC scheduled for May 1, 2024, at 8:30.  The court recommends that the parties meet and confer and moot this out.  It is a good chance for plaintiff to obtain a little bit of good will, and, frankly, in light of the declaration, the court’s preference would be to vacate the sanctions.  In the meantime, the time to pay the sanctions is extended until 10 calendar days after the May 1, CMC or such other time as the court may set.  That will allow the parties to try and work it out and, if they cannot do so, for the court to hear the matter on May 1.

The court does not intend to hear argument on this today.