Judge: Mark H. Epstein, Case: SC126845, Date: 2023-01-03 Tentative Ruling

Case Number: SC126845    Hearing Date: January 3, 2023    Dept: R

The court has considered Farzaneh’s motion to vacate the default.  The history of that motion has been recounted elsewhere and need not be recounted here.

The court is faced with the following set of circumstances.  First, the court finds it difficult to credit Farzaneh’s declaration or showing of excusable neglect.  The case was filed many, many years ago.  He has never answered or otherwise responded to the complaint, with which he was validly served.  He has been involved in enough litigation to know that he cannot ignore a complaint and hope it will go away despite his declaration claiming the contrary.  And, of course, the summons is also very clear on that subject.  The court is willing to agree that during the time he was talking to plaintiffs’ counsel about cooperating he could reasonably believe he did not have to respond; after all, it is not unreasonable to believe that the end result of that cooperation would be that plaintiffs would elect not to pursue him.  But those discussions ended almost 5 years ago.  After that time—when he had been asked to provide documents but never did so—it is not reasonable to conclude that he harbored the same view.  His explanation as to what happened next has shifted over time.  Either he thought that he had been dismissed or he thought Mr. Vivoli (whom he had never met and with whom he had never spoken) somehow represented him for free.  At the recent hearing, even his own counsel was unable to give a cogent explanation for the delay and had to admit that he did not understand why Farzaneh had sat on his hands for so long.  In addition, although plaintiffs had served him with nothing, defendants had served him with at least some papers—including trial preparation materials—in 2019 and as late as early 2020.  In each such paper, Farzaneh was listed as being self-represented.  There is not a single pleading in which Mr. Vivoli purports to represent Farzaneh or that could be viewed as being in any way ambiguous on the subject.

One would therefore have assumed that plaintiffs would have taken Farzaneh’s default long ago—certainly by 2018 when he stopped discussing cooperation.  And plaintiffs’ counsel meant to do just that.  However, due to an error in plaintiffs’ counsel’s office, no default was taken.  Plaintiffs’ counsel recognized the oversight eventually, but not until November 2022, when default was finally taken.  Farzaneh (after being contacted by defense counsel) brought the instant motion and no one argues that he sat on his hands after he was notified of the default.

Plaintiffs argue that Farzaneh has not even made it out of the starting gate because he has not demonstrated anything like excusable neglect.  Frankly, there is a lot of heft to that argument.  Farzaneh’s arguments or excuses are not reasonable, credible, or even rational.  The court can only conclude that although he was aware that the suit was ongoing and that he was a defendant, he was essentially hoping that no one was really serious about pursuing him.  That is not a reasonable assumption.  One can roll those dice, but one should not be heard to complaint when they come out snake eyes.

Which is why, were plaintiffs blameless, the court would deny the motion.  But they weren’t.  Plaintiffs stopped serving Farzaneh with any papers at all long ago.  Of course, that is because plaintiffs’ counsel thought he had obtained a default and the law is clear that a party is not required to serve a defaulted party with papers.  But the oddity of being served only sporadically with some but not all papers and never by plaintiffs would support the notion that all is not normal.  And this was not a short-lived oversight.  Plaintiffs’ error lasted literally for years.  Had plaintiffs been reasonably diligent, we would not be here.  Among other things, plaintiffs could have noticed that Farzaneh was being served with papers by the defense in 2019 and 2020 and asked why.

Plaintiffs also could have, and should have, made some effort to notify Farzaneh that they were planning to take his default unless he appeared.  They might have done so, but never in writing (or at least there is no writing before the court).  While the statute does not require that to occur, it is common practice and for precisely this reason.  It means that if the defendant does want to defend the case, the defendant has a last clear chance to respond before (or at least shortly after) default.  And, conversely, if the effort is made and defendant still does nothing, it strengthens the argument that the decision was deliberate and not excusable neglect or accidental.  Had that been done here in a timely fashion, we would not be in this situation.

Plaintiffs’ errors here cannot just be swept under the rug, as plaintiffs suggest.  It is enough to get Farzaneh past the starting gate.

Once past the starting gate, the court must look at other factors, including the relative prejudice.  The prejudice to Farzaneh is obvious.  If the default stands, Farzaneh will be liable for whatever damages plaintiffs can prove up either on papers or at a default prove-up hearing.  But Farzaneh will not be able to participate fully in the hearing because Farzaneh will be in default.  And the court must look at what is likely Farzaneh’s relative role here.  Plaintiffs have taken exactly no discovery as to Farzaneh.  True, they thought he was in default, so they could not send him written discovery.  But they still could have subpoenaed his papers and taken his deposition.  They did neither.  (And had they done either, the problem likely would have come to light.)  It is hard to believe that he is the truly a significantly culpable party when he was ignored until last month.  Nor were plaintiffs planning to call him at trial.  In fact, they have brought a motion in limine to preclude him from being called.

That means that if defendants otherwise prevail here, Farzaneh will be the last person standing (or at least Farzaneh and others in default) and will be forced to stand judgment.  As stated above, plaintiffs will still have to link their damages to his actions, but because all allegations concerning liability are deemed admitted, that is cold comfort for Farzaneh.  There does seem, in the court’s mind, to be an injustice in allowing plaintiffs that insurance policy here, especially given that the difficulty is to at least some meaningful extent plaintiffs’ fault.

On the other hand, the case is a very old one.  While the court is planning to suggest that the case is long cause, the case is at last ready (or almost ready) for trial.  If Farzaneh is allowed to appear as a party, that could throw the whole case into disarray.  He would have the right to take discovery (although any claimed right would seem a bit far-fetched given that he claims he did not think he was in default and attempted no discovery for the last 5 years or so).  The court does note that his counsel stated that Farzaneh had little or no discovery that he would need to take.  And (as his counsel candidly admitted), he would have the ability to move to have the case thrown out for failure to bring it to trial within the statutory maximum period.  Of course, any time he was formally in default might not count toward that statute, but the problem is that he was not in default until last month. 

The court is prepared to GRANT the motion on the following conditions: (1) Farzaneh waive discovery (but he can rely on defendants’ discovery); (2) Farzaneh adopt as his own the other defendants’ final status conference materials; (3) Farzaneh agree to extend the time to bring the case to trial until the later of (a) whenever the period would otherwise expire or (b) May 31, 2023; (4) Farzaneh waive any right to bring any motion for summary judgment or summary adjudication; and (5) Farzaneh make himself available to be deposed by plaintiff within the next two weeks (and the deposition demand may include a reasonable notice to produce documents).  Defense counsel will promptly serve on Farzaneh a complete record of all pleadings and discovery in this case at Farzaneh’s expense (unless defendants and Farzaneh agree on a different allocation), and that expense will not be subject to recovery even if defendants and Farzaneh prevail at trial.  If Farzaneh agrees, he will file a clean copy of his answer within 1 court day as well as a statement signed by his counsel agreeing to the foregoing conditions without change, limitation, or amendment.  The answer may not include a cross-complaint.

The court believes that the foregoing order significantly mitigates any prejudice that plaintiffs will suffer by having Farzaneh re-enter the case at this date.  On the other hand, it allows Farzaneh to present his case to the jury.  If Farzaneh will not agree to the foregoing conditions, then the motion will be DENIED, as the prejudice to plaintiffs will outweigh the prejudice to Farzaneh given his not-credible explanation for his behavior.

This case is also here for a Trial Setting Conference.  In 2021, the only witness list extant showed approximately 50 hours of testimony.  (Witness List by plaintiff, filed 10/15/21.)  The court had estimated a 20 day trial, which was right at the cusp of what the court could manage in its own department, and the court had therefore decided to retain the trial in Department R.  Given that, the court ordered further briefing on the cross-in limine motions concerning the effect of the rent control board’s earlier decision, upon which the court issued an initial ruling on February 24, 2022, and a final ruling on May 17, 2022. 

On November 17, 2022, plaintiff stated that it had no modifications to its witness list filed in 2021.  Defendant did almost nothing to comply with the court’s FSC orders in advance of the November 21, 2022 Final Status Conference.  On December 14, 2022, the parties finally submitted a joint witness list (amended on December 16, 2022).  That list indicated that the parties needed approximately 120 hours of testimony (direct and cross), which was the first time (the court believes) that it learned that the 20 day trial estimate was woefully understated.

The current trial estimate is now 20-30 days from plaintiffs and more from defendants.  The number of direct and cross-examination hours is not 50 (which was the only number the court had previously been given) but 120. 

That makes this long cause.

The court has discretion to keep the case in Department R even though it is long cause.  The court declines to exercise that discretion.  Although the court has spent considerable time on this matter, including ruling on a major sanctions motion, ruling on whether to quash a subpoenae, and resolving the collateral estoppel issue, it is just not feasible to keep the matter here.

Because this court is an I/C department, the court cannot provide full trial days.  Rather than start at 8:30 or 9:00 am, the trial will generally start between 10:00 am and 10:30 am.  That is because the court hears law and motion daily.  While there is no doubt but that this invades the trial time, that policy has allowed the court to set motions for hearing in 4-6 weeks rather than a much longer time.  The court has considered hearing law and motion on Fridays during trial (all day) so that the Monday-Thursday trial days are full days and there is no trial on Friday, but in truth the net weekly number is not much more and it is a scheduling nightmare.

The court therefore can only offer approximately 4.5 hours per day of trial.  That means 27 days of testimony (approximately) excluding re-direct or re-cross.  Of course, the court is aware that plaintiff objects to a number of witnesses being called and if they were all excluded, it would reduce the estimate by 8 trial days.  But no matter how one slices it, it is a long time.  Further, this estimate does not include voir dire, openings, closings, or instructions.  Nor does it include any time for conferences with counsel over trial motions, jury instructions, the jury verdict forms, or evidentiary issues not raised in limine or for which an in limine motion is denied because the court needs to see the context in which the evidence is proffered.  The bottom line is that the court estimates that the likely real trial time here is closer to 35 days, and that assumes that the court can get a time-qualified jury venire without pre-screening in a reasonable amount of time. 

The court simply cannot afford to take 7 weeks or more to devote to this trial.  The court typically sets between 4 and 6 trials per week.  We all know that most cases settle, often on the eve of trial.  And that many parties request trial continuances when the actual trial date is upon them.  But over a 7 week span there are 30 or so cases set for trial.  Each case is important to the litigants involved.  The court cannot send them all over to Department 1 for re-assignment or continue them for another 6 months or so.  And even if it could, doing so would have a ripple effect that it would take a year to overcome.

Simply put, the new trial estimate is too long.  There is a reason that we have long cause courtrooms, and this is it.  Reluctantly, the court will need to send the case to Department 1 for consideration whether to place it on the long cause docket.

Before the court can do so, the court must have in hand the following materials: (1) joint witness list with the name of each witness, who is calling that witness (plaintiffs, defendants, or both), a one or two sentence description of who that witness is, and an estimate of the direct and cross-examination time; (2) joint exhibit list setting forth the unique proposed exhibit number (meaning no duplicates), a short identification of the document including Bates numbers if there are any, which party is introducing the exhibit (plaintiffs, defendants, or both), whether there is a stipulation that the document is authentic (recall authenticity is not the same as foundation—virtually all proposed exhibits ought to be stipulated as authentic), whether there is an objection to its admission (and if so, the party making the objection and the nature of the objection without argument); (3) jury instructions including jointly proposed instructions, instructions plaintiffs propose to which defendants object, and instructions defendants propose and to which plaintiffs object, all on proper forms and indexed; (4) a joint short statement of the case; (5) a joint deposition chart organized by witness setting forth the page and line of each block of non-impeachment testimony to be introduced, which party is introducing it, whether there is any objection (and if so, the nature of the objection), and any rebuttal designation to the designation (with the other information earlier set forth); (6) a binder of the in limine motions organized by motion and including the moving papers, the opposing papers, and any reply (the parties should include the collateral estoppel papers); (7) proposals for verdicts, stipulated if possible but if not, plaintiffs’ proposal and defendants’ proposal; (8) jury questionnaires if desired, joint if possible but otherwise plaintiffs’ proposal and defendants’ proposal; and (9) trial briefs by both parties.  The parties should also prepare a binder of what they believe are critical orders in the case, including the court’s ruling on the collateral estoppel motion, even though that order will be decided anew by the new trial judge.

Although this list seems daunting, much of the work has already been done or requires little additional effort.  Once all these materials are in hand, the court will transfer the matter to Department 1 for long cause consideration.

The court is not certain what the wait time is for a long cause court.  The court will therefore need a stipulation from the defense to extend the time to get the matter to trial until a date late enough to allow the case to be heard (the court is thinking May 31, 2023).  Absent such a stipulation, the matter will be heard within the time allowed—here or in some other department somewhere in the County where there is availability—but the court will venture to guess that many will be unhappy about it.

The court will inquire as to whether these materials will be ready by January 9, 2023.  If not, then the court expects that they will be ready by January 17, 2023. 

The final status conference will be continued to that time and the trial continued until the following Monday, with all subpoenae and the like remaining in force.  However, Department 1 will determine whether the trial dates will be vacated, in which case new subpoenae will need to be issued.

The court is not happy that it will have to transfer the case.  However, the new trial estimate makes trial in this department simply impractical.  The good news is that once a trial date is given in the long cause department, it is a firm, fixed trial date.

All motions other than in limine motions remain in Department R for resolution.