Judge: Mark H. Epstein, Case: 23SMV01646, Date: 2024-11-25 Tentative Ruling

Case Number: 23SMV01646    Hearing Date: November 25, 2024    Dept: I

This is here for an FSC.  The matter is a Song-Beverly matter.  The trial had originally been set for October, but it was moved on the court’s own motion because the court was dark on the trial date.  The earlier trial date had been set on August 16, 2023.

The court has received the following FSC materials from plaintiff but none from the defense: (1) Witness List showing 8 witnesses are 26 hours of testimony; (2) Jury Questions, although the court is unsure if the request is for a questionnaire or for the court to ask the questions; (3) Exhibit List with 11 exhibits but no indication as to whether the defense stipulates as to authenticity or admissibility; (4) Short Statement of the Case; (5) Special Verdict Form.

The court has not received from either party: (1) Jury Instructions; (2) Trial Briefs (which are optional); (3) Deposition Chart (which is not necessary if no one intends to use deposition testimony other than for impeachment); (4) Updated total trial estimate; and (5) Statement of Unusual Issues.

There are no in limine motions.

The court will inquire as to why defendant has not prepared FSC materials and why there are not joint materials, as the court ordered.  If the reasons are not satisfactory, then the court will deem the matter not ready for trial and vacate the trial date.  If the problem is that plaintiff made a timely and good faith effort to obtain defendant’s input but defendant ignored the case, the court will consider an order barring defendant from calling witnesses or introducing evidence, although defendant may cross-examine any witness plaintiff actually calls (within the scope of the direct examination) and relying on any exhibits plaintiff actually introduces.  The court will also consider deeming defendant to have waived any objection to the exhibits plaintiff has proffered. 

If the matter is otherwise ready for trial, the court expects to see joint jury instructions (as well as any contested ones) filed no later than 3:00 pm Wednesday along with the updated trial estimate and statement of unusual issues.

The court notes that it is currently engaged in trial.  The trial might or might not be done by December 9.  If not, and if the case is ready for trial, the court will inquire whether the parties would rather trail or have the trial re-set.  The court will, under those circumstances, give this case a priority in terms of re-setting the date.

As to the jury questions, the court is not inclined to ask many of the questions posed, but plaintiff’s counsel may do so.  That said, the court might ask some of them, as the court understands the notion that it might sound more neutral coming from the court than a party.  If, on the other hand, it is meant to be a questionnaire, then we will need to discuss the matter.