Judge: Mark H. Epstein, Case: BC664654, Date: 2023-03-22 Tentative Ruling

Case Number: BC664654    Hearing Date: March 22, 2023    Dept: R

The matter is here for final status conference.  The court is in receipt of four motions in limine from plaintiff and five motions in limine by defendants.  The court gave its FSC order on May 11, 2021.  The court is perplexed.  Plaintiff filed a lengthy statement regarding her efforts to comply with the court’s FSC orders.  Taken at face value, which is all the court can do in the absence of a response by defendants, it appears that defendants have done little to help prepare the case for trial in good faith.  Defendants did virtually nothing until the last minute, delayed responding to plaintiff’s timely drafts, and has not had a real conversation of any kind.  Defendants filed materials on Monday—two days before the FSC.  That is untimely.  In its statement of unusual issues, defendants do not discuss plaintiff’s statement.

The court is in receipt of the following materials filed on March 17, 2023: (1) Plaintiff’s statement regarding meet and confer and trial issues; (2) Plaintiff’s jury instructions and verdict form (this appears to be joint, in that objections are noted to some instructions; there are no objections noted on the verdict form) with neither party offering any special instructions, however the actual instructions are not attached; (3) Plaintiff’s exhibit list and supplemental list (filed 3/20/23), which has well over 1000 exhibits including many of the pleadings in this case; (4) Plaintiff’s witness list suggesting 132 hours of direct testimony and 76 hours of cross examination, making this a LONG CAUSE TRIAL if accurate—the court will inquire; (5) Plaintiff’s jury questionnaire, to which there have been no objections; (6) Plaintiff’s deposition chart including some objections.  The court has received no trial briefs, but they are optional.

The court is in receipt of the following materials filed on March 20, 2023: (1) Defendants’ statement of unusual issues (regarding trial accommodations); (2) Defendants’ witness list (123 hours of direct and 76 hours of cross for 199 hours total, it is unclear what the differences are between the parties); (3) Defendants’ special verdict form, which is 17 pages long and it is unclear where the differences are with plaintiff’s form; (4) Defendants’ exhibit list with 126 exhibits, all from defendant with no objections noted; (5) Defendants’ statement of the case.

The court is quite troubled by defendants’ seeming lack of cooperation.  Defendants have not followed the court’s directive despite plaintiff’s apparent repeated efforts to get them to do so.  The court is simply at a loss.  The case is plainly NOT ready for trial, and the fault lies with the defense.  The court is considering the appropriate sanction, which could include striking certain filings or precluding certain objections or the introduction of certain evidence.  That could be a harsh result, and the court is aware of it.  But the court simply does not know what else to do given what appears to be a gross and knowing decision by the defense not to participate in the trial process, which follows some very poor conduct by the defense during earlier phases of the case (although the defense conduct later did improve greatly).

The court, on its own motion, strikes the exhibits on plaintiff’s list that comprise the court’s docket as unnecessary.  Pleadings are rarely, if ever, relevant.  Should a pleading turn out to be needed, no party will be barred from seeking its introduction.  The court also, on its own motion, strikes plaintiff’s discovery responses.  Plaintiff cannot rely on her own discovery responses to prove her case.  The court also, on its own motion, strikes the deposition chart for plaintiff’s deposition.  Plaintiff cannot use her own deposition as evidence.  The court reserves ruling on the other entries.  Plaintiff’s ability to use a deposition as affirmative evidence where a witness is available to testify is limited, but the court will deal with that if and when plaintiff attempts to introduce that testimony.

The court will inquire of the parties whether the time estimates stand.  The court can offer a trial day of 4.5 hours, and due to a concern raised by a party the court may be dark on Fridays.  At that rate, this is about 50 days of testimony (direct and cross) alone. (The court notes that the parties’ estimate was 15 trial days.)  Telling a jury that they will need to devote 3 months to this case will make it hard to get a jury, at least in Santa Monica where the court cannot prescreen for time hardships, and in any event this court cannot devote that much time to a single trial given that its docket of cases now tops 700.  As set forth before, the current estimate qualifies this case as long cause, meaning it will need to be transferred to a long cause department for trial.  It is just not feasible for this court cannot hear a case of that length.  Having said that, witness lists are documents of preclusion—that is, the name goes on the list if there is any possibility that the witness will be called so as to avoid not being able to call the witness if needed.  And estimates often run long so that no one is forced to end an examination prematurely.  The “real” estimate is usually significantly shorter than the witness list would suggest.  If the matter can be tried in this court, then it will be.  If not, the court will discuss long cause procedures.  However, given the lack of defense cooperation, the case is nowhere near ready to be submitted to Department 1.  This is all the more troubling given that the case is very old and is crying out for a trial. 

All of that said, the case appears to be NOT READY FOR TRIAL.  In limine motions will be decided by the trial judge.  Because it is not clear that the case will stay in this department, the court will not issue rulings on those motions at this time.