Judge: Mark H. Epstein, Case: SC125609, Date: 2023-02-06 Tentative Ruling

Case Number: SC125609    Hearing Date: February 6, 2023    Dept: R

Plaintiff seeks to continue the trial and advance various hearing dates.  Putting aside time during which the case has been stayed, the matter has been pending for about 5 years.  Plaintiffs contend that the time to bring the case to trial expires in mid-May 2023; defendants seem to contend that it has already expired (they claim it expired in December 2022).

Plaintiff makes a series of arguments as to why a continuance is needed.  The reason the motions need to be advanced is because of the trial deadline (even if there is a continuance, due to the May 2023 expiration of the time to bring the case to trial).  Defendants have no opposition to advancing the hearing dates, but suggest that their motion to dismiss based on the 5 year rule be heard first.

Although plaintiff does admit to its own part in the problem, plaintiff spends much of its time pointing the finger at O’Gara.  Plaintiff notes that O’Gara insisted on a particular order of discovery—with its people being deposed last.  Plaintiff states that it could have complied in full with this and still been done, but O’Gara then went through musical lawyers.  Lead counsel left in September 2022 and new lead counsel left in December 2022, and new (and current) lead counsel was on vacation in January 2023.

Plaintiff notes that it still needs to complete the deposition of Richie—whose deposition started but did not finish—who is COO of O’Gara and purportedly has lots of knowledge.  Plaintiff is also moving for terminating sanctions over defendant Ra, who plaintiff says refuses to appear for deposition despite court orders.  Plaintiff has also been unable to locate 4 key witnesses to subpoena them.  Plaintiff also notes that O’Gara noticed a number of depositions at a time when O’Gara’s counsel knew plaintiff’s counsel was in trial or was about to be in trial. 

Plaintiff does admit that part of the problem is that counsel is about to start a trial on February 10, 2023, and that means that counsel just does not have the time to devote to the case that would normally be available.  That, in turn, has hampered plaintiff in finding the missing witnesses, scheduling the completion of depositions, and propounding discovery.

Plaintiff also states that it intends to file a Second Amended Complaint.  Plaintiff asserts that this document will clarify some things, but it will also add new, and to date unspecified, causes of action.

Plaintiff notes that expert discovery has not even started yet.

Right now, the trial is set for March 13, 2023.  The Final Status Conference is set for March 6, 2023, and the court is willing to bet that no one has done anything on that front in terms of the FSC.

The court is inclined to deny the motion.  The case has been pending for five years now and it is time to bring it to a close assuming, without deciding, that the matter is not already over-time.  If that means that plaintiff cannot add some newly discovered theories to the case, then that is what it means.  If that means that discovery won’t be done, then so be it.  That said, the court might well extend the discovery cut off a bit, and the court is curious as to O’Gara’s counsel’s purported behavior.  Having changed lead counsel twice, and with a trial date looming, it is puzzling that O’Gara’s counsel would (as plaintiff’s counsel suggests) essentially block out most of January—the last month before the discovery cut off—due to a vacation.  Nor does the court understand why plaintiff would allow O’Gara’s counsel to dictate the order of discovery.  There is a discovery referee in place, though, so the court may not have a full picture.

The problem is that plaintiff seeks a one month continuance at a time that the court is extremely busy.  Every case is important to the court, including this case.  But this case is hardly more important than the other cases on the court’s docket—one or more of which will have to be bumped to make room for plaintiff’s request.  Further, the court’s motion docket is quite full; advancing three or four motions puts an undue strain on the court.

If what plaintiff says is true, the court might be inclined to stay O’Gara’s further discovery until plaintiff’s discovery is done.  The court might also bar Lacro’s deposition if, as plaintiff states, the order was that Lacro appear in June of last year but O’Gara unilaterally, and in defiance of court order, delayed until January 2023 and set the date on a date that counsel knew plaintiff’s counsel would be unavailable.

If the court had any reason to believe that counsel would or could work cooperatively, the court would be willing to work with counsel.  But a continuance now does little more than invite more motions and strife.  The better way to deal with the purported prejudice is to make appropriate rulings concerning the party or party’s responsible for the bad faith—if there is indeed bad faith—and have the trial go forward.  If the problem lies with O’Gara, the court has tools with which to attempt to rectify the prejudice, although they are not pleasant.

The court would be willing to do something different, though, if the court had reason to believe it would result in an orderly trial process and if the discovery referee were willing to go on record to state that the parties had been reasonably diligent in participating in discovery and the current problem is caused by circumstance rather than a lack of cooperation or diligence (as to one side, some sides, or all sides).

At the moment, the court is inclined to DENY the request, but consider, in the form of timely filed in limine motions or otherwise, actions that will rectify any prejudice caused by bad faith.  The court will also consider defendants’ claim that the whole case is barred because the time to bring it to trial has expired if and when such a motion is filed.