Judge Shirley K. Watkins, Case 20STCV16533 2022-08-03 Tentative Ruling

Judge: Shirley K. Watkins, Case: 20STCV16533, Date: 2022-08-03 Tentative Ruling

Case Number: 20STCV16533 Hearing Date: August 3, 2022 Dept: T

TENTATIVE RULING

DENY EX PARTE APPLICATION TO CONTINUE HEARING ON MSJS.

TRIAL OF THIS MATTER IS SET 10/17/2022. THE COURT HAS ALREADY GRANTED A CONTINUANCE OF THE MSJ DATES ONE MONTH AGO. THIS CASE HAS BEEN PENDING SINCE 4/20/2020 AND THIS IS THE FIRST TIME PLAINTIFF'S COUNSEL HAS MENTIONED THE NEED TO "UNSEAL" THE CRIMINAL RECORD OR OBTAIN DOCUMENTS FROM THE CRIMINAL INVESTIGATIVE FILE. TO DATE, THERE IS NO EVIDENCE OF A MOTION FILED OR SUBPOENA ISSUED FOR ANY SUCH DOCUMENTS, WHICH SHOULD HAVE BEEN KNOWN TO EXIST BY PLAINTIFF'S COUNSEL LONG BEFORE TODAY. THERE IS NO SHOWING OF DUE DILIGENCE. DESPITE THE FACT THAT THE CASE IS ONLY 2 MONTHS TO TRIAL, PLAINTIFF HAS NOT SERVED THE OPERATIVE COMPLAINT ON TWO DEFENDANTS.PLAINTIFF'S COUNSEL WAITED UNTIL 11:45 PM ON THE DATE THAT THE OPPOSITION TO THE MOTION FOR SUMMARY JUDGMENT WAS DUE TO SEEK THIS CONTINUANCE. CCP SEC. 437C(H) STATES: "If it appears from the affidavits submitted in opposition to a motion for summary judgment or summary adjudication, or both, that facts essential to justify opposition may exist but cannot, for reasons stated, be presented, the court shall deny the motion, order a continuance to permit affidavits to be obtained or discovery to be had, or make any other order as may be just." IMPLICIT IN THIS LAST-MINUTE REQUEST FOR CONTINUANCE IS THAT THERE HAS BEEN DUE DILIGENCE AND SOME EXPLANATION WHY THE INFORMATION WAS NOT OBTAINED EARLIER. GIVEN THE LACK OF EVIDENCE OF DUE DILIGENCE, THE COURT QUERIES WHETHER THIS REQUEST IS BEING MADE FOR PURPOSES OF DELAY. FOR INSTANCE, PLAINTIFF’S COUNSEL MENTIONS THE CRIMINAL INVESTIGATION AS AN ASIDE IN HIS JUNE EX PARTE APPLICATION TO CONTINUE THE MSJs BUT DOES NOT MENTION ANY INTENTION TO OBTAIN THE RECORDS, OR ANY STATEMENT OF NEED TO HAVE THE DOCUMENTS. INDEED, HE IS THE ONE WHO SUGGESTED THE AUGUST 15^TH DATE FOR THE CONTINUED MOTIONS. IN ADDITION TO THE TWO REQUESTS TO CONTINUE THE MSJs THERE HAVE BEEN 3 PREVIOUS EX PARTE APPLICATIONS BY PLAINTIFF’S COUNSEL TO CONTINUE OR EXTEND DEADLINES. IN SUMMARY, NO INFORMATION HAS BEEN SUBMITTED BY PLAINTIFF’S COUNSEL AS TO WHY HE DID NOT REQUEST THIS EARLIER, WHETHER HE HAS FILED THE MOTION TO UNSEAL RECORDS IN THE CRIMINAL COURT WHERE THE ORDER WAS MADE, WHETHER HE HAS ISSUED ANY SUBPOENAS FOR THESE DOCUMENTS.THE COURT ALSO NOTES THAT THE MOVING PAPERS INDICATE THAT THE CRIMINAL CASE WAS SEALED 8 MONTHS AGO. THE COURT WILL HEAR ARGUMENT.

UPDATE

The court also notes these additional reasons for denying the ex parte application:: The ex parte application is not being heard until two days after the opposition was due in violation of CCP 437(h). Plaintiff's counsel was aware of a criminal investigation involving Mr. Jackson as far back as November 2020 when he filed plaintiff's CMC Statement. "Defendant...Jackson is currently involved in a pending criminal matter related to this action...The criminal case is next set for hearing on December 9, 2020."