Judge: Mark H. Epstein, Case: SC123657, Date: 2022-12-05 Tentative Ruling
Case Number: SC123657 Hearing Date: December 5, 2022 Dept: R
The matter is here, again, for an FSC. Last week, as soon as the court observed that the MSC was unsuccessful, counsel for Farr began to argue why plaintiffs’ conduct was improper, presumably leading up to some sort of request for sanctionS or request that the trial be postponed and the parties again ordered to the MSC. That led counsel for Triurol to attempt to talk over Farr’s counsel complaining (the court presumes) that Farr’s counsel’s statements were not correct and further that it was improper to start recounting what happened at the MSC in open court in front of the trial judge. The court put a stop to that discussion and ended the hearing. The court apologizes for its tone at that hearing, which should certainly have been calmer. However, the court is not going to allow sessions to devolve into spats with parties talking over one another and arguing as if we were on a playground rather than a courtroom.
If Farr’s counsel wants to argue that a specific court order was violated, it may do so. It should point to the specific language in the court order and state as a factual matter and with no adjectives or adverbs how the order was violated. That means that Farr’s counsel will need to point to an actual order that all of the parties be present (virtually) throughout the entirety of the MSC. The court’s understanding is that one individual was present, but not all individuals. The court understands that all individuals could be reached at one point or another, but not at all times. The court anticipates that this showing will either not be made at all or will be made in 30 seconds or less. If the showing is made, counsel for Triurol may then rebut the showing factually—that is, by showing that there is no such order or that all the individuals were in fact present at all times. That showing should take about 30 seconds or less and it, too, should be without adjectives or adverbs.
If an order was violated, the court will consider the consequences. The problem here is that the court does not care why this was important to Farr. From what the court gleaned at last week’s hearing, it is because Farr believed that it could, through force of persuasion, convince the individual plaintiffs/cross-defendants to accept a settlement that their counsel advised against. The court has significant doubt as to whether such was ever likely to be the case. It is not clear to the court that Triurol’s counsel would have allowed such a direct communication it or that Judge Gross would have ordered it. And even if an impassioned plea could have been made, the court has no reason to believe that plaintiffs/cross-defendants would have elected to disregard their counsel’s advice. In other words, the court simply has no reason to believe that ordering the matter back to MSC—even if an order was violated—would have any effect. Defendants stated that they were highly motivated to reach a settlement and the court has no reason to doubt it. And it is not beyond the scope of imagination to believe that defendants are more motivated than plaintiffs. But the bottom line is that all parties have to agree on a settlement, and no matter how much defendants want to settle if they cannot offer a settlement that plaintiffs want to take there is no deal. Judge Gross was available to help bring the parties together, and he is quite good at bridging gaps. But he was unable to do so.
The court, of course, has no idea whether the problem was that plaintiffs were unreasonable or unrealistic, defendants were unreasonable or unrealistic, all parties were unreasonable or unrealistic, or this is just one of those cases where even reasonable and realistic parties cannot settle. But whatever the reasons that the MSC failed (and the court really does not want to know), the undisputed fact is that it did fail.
The court presumes that there was at least a proposal by each side. It is not too late for one party or the other to accept that proposal or to try to reach an accord without a mediator. But other than that, the time has come to try the case.
The court is still engaged in trial, but the likelihood is that it will end during the week of December 12, 2022. Accordingly, the current trial date is continued to December 13, 2022. The matter will be trailed from day to day until the court is available. The court will ask all parties to agree that once the venire is called, the case will be deemed to be in trial rather than wait for a later time. That is because the court is concerned that voir dire can take a long time. If the court cannot obtain that agreement, the court will do what it must (within legal bounds) to avoid dismissal. The court notes that there are at least three other matters with final status conferences today that may answer ready for trial. Those cases may have priority over this one if they are in fact ready. One is what appears to be a short cause collection bench trial. One is a short cause UD bench trial that is likely to last less than one afternoon and has statutory priority. The other is a three day bench trial. Frankly, the court can likely try all three cases in a single week. The court will know the status of those three cases during this morning’s calendar. If they are really ready to go, the court is likely to continue the trial in this case to December 19, 2022 to allow those cases to be tried.
The court believes that it has resolved the MIL’s.
On the motion to quash, the court will hear argument on December 12, 2022. Opposition to the motion may be filed on or before December 8, 2022 at 3:00 pm with a courtesy copy delivered to court. There will be no reply. That said, the court STRONGLY encourages plaintiffs to consider long and hard whether they want to press any opposition to the motion to quash. The court has not fully considered defendants’ motion, but it has reviewed the trial subpoenae and the court’s initial thought is that the subpoenae read far more like deposition subpoenae than trial subpoenae and the court believes that plaintiffs’ counsel is aware of that fact. If so, then the proper response might well not be for the court to try and craft some compromise, but rather to quash the subpoenae in their entirety as improper. On the other hand, that would not preclude plaintiffs from trying again. Therefore the best solution might be to meet and confer and resolve this without judicial intervention. The court STRONGLY urges such a path.