Judge Randolph M. Hammock, Case 19STCV15742 2022-10-06 Tentative Ruling

Plaintiff, the People of the State of California, by and through the Los Angeles City Attorney (“the People”), brings this action against Defendants H&R Block, Inc., and HRB Digital LLC (collectively, “Block”). Plaintiff alleges that in the early 2000s, a consortium of electronic tax preparation companies (the “Free File Alliance”), including Block, agreed with the Internal Revenue Service to begin offering free filing software to taxpayers. In exchange, the IRS agreed not to offer its own free filing software. Plaintiff alleges that in recent years, Block has wrongfully undermined public access to its free filing program in order to divert them to fee-generating paid filing systems. Plaintiff brings this suit against Block under the Unfair Competition Law, Bus. & Prof. Code § 17200 et seq.

Trial continuances may be granted on an affirmative showing of good cause, under the standards recommended in CRC Rule 3.1332(c). Those standards establish that the following matters, under normal circumstances, should be considered by the court to be good cause for granting the continuance of a trial date: (1) death; (2) illness; (3) unavailability of attorney or witness; (4) substitution of attorney; (5) addition of a new party; (5) significant change in status of case. (CRC Rule 3.1332(c).)

A court should also consider all matters relevant to a proper determination of the motion, including the proximity of trial, previous continuances, the length of the continuance sought, alternatives, prejudice to parties or witnesses, preferential trial setting, the court’s calendar, trial counsels’ calendars, stipulations to continuances, the interests of justice, and any other relevant facts or circumstances. (CRC Rule 3.1332(d).) Continuances must be sought promptly once their grounds have been ascertained. (CRC Rule 3.1332(b).)

Nevertheless, the factors that influence the granting or denying of a continuance in any particular case are so varied that the trial judge must necessarily exercise a broad discretion. (Arnett v. Office of Admin. Hearings (1996) 49 Cal.App.4th 332, 343.)

Block moves for an order continuing the trial date from January 17, 2023, for approximately six months, to July 24, 2023, or a date thereafter compatible with the court’s calendar. Block argues the continuance is warranted because a critical member of its legal team is undergoing an urgent, unexpected medical operation with a multiple-month recovery period. This development leaves the attorney unavailable to assist in trial preparation.

The People oppose the motion. First, they contend that Block has not established that the unavailable counsel has a significant role in this case. They note that the attorney has “not been admitted pro hac vice, has not appeared in this action, and had not even made [his/her] involvement known until Defendants sought this continuance.” (Opp. 2: 6-9.)

Further, the People contend they will be substantially prejudiced if the trial is continued. This is because witness memories will fade, “case and trial strategy…will have be put on hold,” and “justice for the consumers who actually suffered harm will be further delayed.” (Opp. 4: 13-18.)

The Court finds good cause exists for a continuance of this trial, based on the unavailability of a key member of Block’s trial team. Importantly, aside from a six-month delay, The People have not demonstrated it will be unduly prejudiced by the continuance. The People’s argument that fact and expert witness memories will fade in a 6-month period seems unlikely. After all, this case has been pending since 2019. It seems equally unlikely that trial work already completed will need to be “redone and recreated” based on the continued date.

This does not mean, however, that the People’s position was unreasonable. Quite the opposite. It is notable that the unavailable attorney has been completely absent from this case and this court’s docket—publicly, at least. And indeed, it appears this was a strategic move. Under the circumstances, however, it resembles a lack of candor with the court and opposing counsel.

If the unavailable counsel is truly the “lead attorney” in this matter, then counsel’s failure to seek admission Pro Hac Vice may skirt the State Bar’s requirements for appearances by out-of-state attorneys. Although the admission may not have been technically “mandatory” up to this point, the decision not to do so resembles a form of gamesmanship. Be that as it may, this court expects that the attorney will move to be admitted Pro Hac Vice at the earliest date possible. (See Cal. Rules of Court, Rule 9.40.)

Any party may submit on the tentative ruling by contacting the courtroom via email at Smcdept49@lacourt.org by no later than 4:00 p.m. the day before the hearing. All interested parties must be copied on the email. It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.