Judge: Mark H. Epstein, Case: SC127692, Date: 2025-01-09 Tentative Ruling

Case Number: SC127692    Hearing Date: January 9, 2025    Dept: I

This is a debtor’s exam.  On Tuesday, the witness and sort-of-new counsel sought to continue the matter.  The witness claims she is undergoing a medical procedure today and counsel has a conflict.  The creditor objects to a continuance.  The court is not pleased.  If the witness has a medical procedure, presumably it was known before Tuesday.  (Of course, if that is not the case because this is an emergency, that is different).  Yet the witness waited a month before letting anyone know about it.  Counsel was just substituted in and claims a need to learn things, talk to the client, and review the file.  That would have more heft had this counsel not already been involved in the case literally for years.  If there was a true conflict, the court would have expected counsel to talk to the judgment creditor’s counsel and try to get a 1 or 2 day continuance, which the court would have expected judgment creditor’s counsel to grant.  The witness also says that Pimi and Pilar might seek a stay pending appeal of the portions of the judgment relating to issues they claim the referee lacked jurisdiction to hear.  The appeal was filed in March, and no stay has been requested to this day.  The question whether the referee exceeded his authority has been fully briefed and argued and the court ruled on the question last February.  The Court of Appeal might grant a stay, but the odds that this court will do so—a year after the decision was made and almost a year after the appeal was filed—will depend on what kind of showing Pimi and Pilar can make to explain this extraordinarily long delay.  The court is not saying they cannot make the showing—it could be, for example, that Michelle offered to stay the matter informally or there could be many other reasons—it is just that they will have to explain it.  Michelle argues that the court cannot stay the deposition unless the witness actually appears pursuant to Local Rule 3.221(e).  If Pilar is truly undergoing a medical procedure, the court is quite unlikely to sanction her for the non-appearance or find that she is wrongfully not here.  Michelle would be well advised to reconsider that position.  What the court will do is sanction Pilar and Pimi for the costs Michelle incurred preparing for the deposition, including attorneys’ fees, payable in 10 days.  The court will find out from the witness’s counsel when the witness will have recovered from the procedure and Michelle may set the new deposition date on any week day (that is not a holiday) thereafter.  The court will also condition that order on counsel’s representation that she has authority to accept service of process as if process were personally served on Pilar so that there are no further issues regarding service.  Absent an agreement to that, the court would be forced to draw the inference that the request for delay is a subterfuge and act accordingly.  If the parties are detecting a degree of frustration by the court, that would be a perceptive observation.  The frustration is more at Pimi and Pilar, but there is some at Michelle for pressing for a penalty if the witness is truly undergoing a medical procedure today.