Judge: Mark H. Epstein, Case: BC539309, Date: 2023-03-07 Tentative Ruling

Case Number: BC539309    Hearing Date: March 7, 2023    Dept: R

The court will discuss the matter with the parties.

The court is not overwhelmed by the showing regarding a continuance.  The court will assume that defendant had no ability to do anything until the stay pending arbitration was lifted on June 23, 2021.  But that was 2.5 years ago.  And not only has there been ample time to conduct discovery and explore settlement, defendant here had the advantage of whatever discovery had been done in the arbitration as well as the arbitration record and decision.

There has been no explanation or even attempted explanation to show diligence in bringing the matter to trial or preparing the defense of it.  While some discovery has been done, the pace has been lagging at best.  The court is therefore disinclined to grant the motion.

Defendant states that the parties have agreed to mediate.  That is well and good, but there has been plenty of time for that.  The time has run out.  The court has significant doubts as to whether the parties are seriously engaged in mediation as opposed to using mediation as a convenient excuse to buy time to continue the case.  Certainly there has been no indication that the parties are close or that a successful mediation is likely.

Accordingly, under normal circumstances, the motion would be DENIED.  However, in fairness to the parties and their counsel, if the court is not prepared to try the case in April, it would be inappropriate to deny the motion to continue.  At this point, the court is unsure.  The court will therefore CONTINUE this motion to Monday, April 3, 2023 at 8:30 am.  At that point, the court will have a better idea as to whether it will have availability to try this case.  If the writing is on the wall, the court will continue the case at that time.  If, however, the court is able to hear the trial, then the court will hear it and this case will go forward.  The court reminds the parties that the final status conference is April 10, 2023, meaning that FSC materials must be filed no later than April 5, 2023.  The court further reminds the parties to be familiar with the court’s FSC rules as well as trial rules, all of which can be found on the court’s website.  However, the parties may disregard the proposed stipulation to a jury of 8.  That was a social-distancing rule and, because the court is no longer socially distancing, a jury of 12 poses no hardship on the court. 

The court notes that it has a tremendous backlog of cases.  By asking for a continuance this close to trial, the court risks having a hole in its trial schedule that cannot be filled, something that would not have been the case had the continuance been requested 5 or 6 months ago.

The court is also quite concerned at defense counsel’s accusation.  Defense counsel stated that plaintiff’s counsel acted deceitfully by refusing to continue the non-expert discovery cut off.  In response, plaintiff submitted documentary evidence that establishes—and quite persuasively—that plaintiff had never agreed to continue non-expert discovery, that plaintiff was express about that, and that defense counsel agreed three times, which includes two formal stipulations.  Defense counsel’s accusation is troubling in that context and is improper and unethical.  The court will discuss the matter with defense counsel, including what, if anything, needs to be done about it.  To be clear, there is nothing wrong with defense counsel trying to change the deal and asking permission to do so.  What is unethical is what appears to be a deliberate lie by defense counsel to the court in an effort to mislead the court and, worse, to lie by calling opposing counsel deceitful.