Judge: Mark H. Epstein, Case: SC129822, Date: 2023-04-24 Tentative Ruling

Case Number: SC129822    Hearing Date: April 24, 2023    Dept: R

The court is puzzled.  This case has been pending since September 2018—almost 5 years.  It is no exaggeration to say that it appears than no one has any real interest in prosecuting or defending this case.

Defendant took plaintiff’s deposition on February 15, 2021.  At the time, the trial was set for May 17, 2021.  The deposition was not completed and the parties agreed to take the second day on March 25, 2021.  However, the deposition did not go forward that date, quite possibly because the court (on March 10, 2021) continued the trial at the parties’ request until March 7, 2022.  On February 16, 2022, the court continued the case again.  The court had initially denied the request to continue, largely because good cause was not shown.  In the February 16, 2022 order, the court stated that “No further continuances will be granted, absent extraordinary cause.”  The case was continued to December 19, 2022.

And again, nothing was done to complete plaintiff’s deposition.  On December 8, 2022, the parties moved again to continue the case.  This time, the lack of a complete plaintiff’s completed deposition was the reason given.  The court reluctantly granted the motion.  The court stated that it was not happy about the fact that the parties were again trying to continue the trial even after the prior order.  The court noted that neither party had acted with diligence or anything close.  The only reason that the court granted the motion was that the court was otherwise engaged in a trial on that date, and the court thought it was unfair to deny the request to continue the case only to continue it anyway later on.  The court then moved the trial to its current date of May 15, 2023.

Defendant finally sought to complete the deposition.  The deposition was noticed for March 10, 2023.  But on March 9, 2023, when defendant called plaintiff’s counsel to confirm, plaintiff’s counsel stated that plaintiff would not be present because (amazingly) he had not obtained a copy of the transcript from the first day of deposition—over two years ago.  That, of course, is not a ground to refuse to appear for a deposition.  Typically, depositions go from day to day and, absent a very expedited transcript, there is no transcript available before the second day of deposition.

Time is up.  The motion to continue is DENIED.  The court normally would order plaintiff to be deposed per the notice, but that date has passed.  The discovery cut-off is coming, and given the current timing the deposition may need to be set unilaterally by defense counsel.  Plaintiff’s failure to appear might well result in an evidentiary sanction, including, but not limited to, barring plaintiff from testifying.  On the other hand, defendant’s lackadaisical attitude might be such that the more appropriate sanction if plaintiff cannot be deposed would be simply to have the case go forward without plaintiff’s second day of deposition.  While defendant suggests that doing so would somehow deny it of some kind of a “constitutional” right, the court cannot see how this is a problem of anyone’s making other than the parties and certainly not of constitutional dimension.

The other possibility is, of course, to recognize the reality that no one really wants to litigate this case or takes it seriously, which is why virtually nothing has been done for almost five years.  Perhaps the time has come for the parties to settle it.  The court reminds the parties that the final status conference materials required of both of them are extensive and the sanctions set forth in the local rules for failure to comply can be severe.  The parties are again directed to the court’s website for details on what the court requires for the final status conference and for trial.