Judge: Mark H. Epstein, Case: SC126845, Date: 2022-12-19 Tentative Ruling

Case Number: SC126845    Hearing Date: December 19, 2022    Dept: R

The court is in receipt of the following FSC documents: (1) Joint Witness List filed 12/14/22 (36 witnesses with 119 hours of direct and cross-examination, although plaintiffs have sought to exclude certain witnesses); (2) Joint Statement of the case filed 12/14/22; (3) Jury Instructions filed 12/14/22 (a number of joint instructions, 26 instructions proposed by plaintiffs and opposed by defendants and 15 instructions proposed by defendants and opposed by plaintiffs); (4) Plaintiffs’ Amended Trial Exhibit List filed 11/17/22; (5) Plaintiffs’ statement that it relies on its prior proposed verdict form; (6) Defendants’ Exhibit List filed 11/18/22.

The court will inquire about: (1) the meet and confer process as it related to the jury instructions; (2) the status of the verdict; (3) whether there are other FSC documents earlier filed that remain operative; (4) the status of the exhibits, including stipulations as to authenticity and objections; (5) whether any party intends to rely on any deposition transcripts and if so why there are no deposition designations.

The court will also inquire as to the expected length of the trial. 

The court is not convinced that the parties are actually ready for trial.  Whether they are will depend on the discussion above.  The court is aware of the in limine motions that remain.  The court will rule on them when the case is otherwise trial ready assuming it remains in this department.  The court is aware that plaintiffs seek to bar defendants’ experts from testifying.  The court has some questions about that.

The court is also in receipt of Mr. Farzaneh’s motion to be relieved of his default or to set a hearing date for such a motion.  Before ruling on that application, the court needs more information.  Specifically, the court needs to know what, if any, efforts plaintiffs made to contact Farzaneh at any time during this litigation.  For example, did plaintiffs attempt to depose him; did plaintiffs send him any discovery; did plaintiffs call him shortly after he failed to respond to inquire about the situation; did plaintiffs inquire of Mr. Vivoli as to whether Mr. Vivoli was representing Farzaneh. 

Frankly, the court is not overwhelmed by Mr. Farzaneh’s statement.  He was served with process; at some point he ought to have been aware that there was a case.  On the other hand, there is a 40 page docket in this case and Mr. Farzaneh (if not represented) does not appear to have been served with anything by any party.  It is hard for the court to believe that Mr. Vivoli failed to serve Mr. Farzaneh if Mr. Vivoli knew that Mr. Farzaneh was unrepresented (or at least that Mr. Vivoli did not represent him).  Similarly, if Mr. Vivoli never claimed to represent Mr. Farzaneh, it is hard to understand why plaintiffs never served him with anything.

The court has reviewed various proofs of service.  None of them included anyone who purported to represent Mr. Farzaneh and none of them had Mr. Farzaneh served.  The court does note that a proof of personal service was filed as to Mr. Farzaneh in 2017.  So for about five years, no one did anything regarding Mr. Farzaneh.

If the court grants the motion, the court will inquire as to the effect on the trial and will ensure that Mr. Farzaneh is willing to extend the five year statute to the same date as it currently expires.  The court will not allow Mr. Farzaneh to be relieved of default only to claim that the case must be dismissed.