that gone on for over ten years diligently the defense would like to argue health issues of one of the two principal attorneys in the case and go back two years earlier however that doesn't work as of two thousand and thirteen this case was still being vigorously prosecuted albeit in an auction type manner where the city excluded retained counsel myself on't read judge faeces ordered tracking what you're talking about this case is go on for eleven years yes continued endlessly and judge fees made it clear on october twenty eighth two thousand and fourteen he said  more than adequate warning did you bring somebody else and take the case if you were ill yes we brought in two law firms to attempt to take over the case and the court's order was if nobody appeared i mean doing this almost forty years i did drag myself dead to do the opening argument and do that trial he didn't dismiss it on the did was set for trial he dismissed it in advance right but he hadn't done that you hadn't done that all the pretrial nothing missed now while the pretrial documents were already filed documents we needed to submit even though i was the operation i had was a very serious operation i was disabled completely the people that made the motions on my behalf were doing it with my wife because i was for over sixty days completely disabled as the documents show the exhibits worried about my health because the doctors had said i need sixty days to be going just missed it in response to the x pretty application to go right to the trial date i said he said if you're not going to be he  in denying the motion the expert the application he also dismissed the case for failure to prosecute i guess because you asked for a continuance yes and he read that to mean you were going to be available well i had two lawyers that said it would be i have a wife that's a lawyer there was no way that that was going to go and his statement was if somebody is not here that day i read his statement and i was very clear and understood that very clear but i was also i think cut from  that your medical condition was well known for a long period of time and judge fee's had wanted you to get a lawyer in who could handle the case you know we want you to prepare ahead of time not ideal last minute and two thousand and seven i hired her after but then there was the breakdown whatever over the settlement and whatnot and but judge she said made it pretty clear that he everybody knew that you had some medical conditions and serious problems and he wanted you to get somebody in so the case could get resolved and when we did at we were faced with the christmas holidays the thanksgiving holidays i saw that a lot of people want of ailill i finally got a friend of mine from alabama to fly out and say he would appear we also had ron h hearing there was a problem with the date and some confusion so that declaration was twelve hours of that and but the bottom yes your argument is that if he had waited until the day of trial you didn't show up or somebody came in and asked for a continuance he could have said no i told you to be ready to go and you're not ready to go today cases just mr failure to prosecute and if you did you you would acknowledge you'd be really difficult position if i didn't have anybody there to start it yes but that wasn't my understanding and i was not you have to understand i was as the declarations stated i africa and we could very well and i hired him here but the city took a position they would not settle the case with me and therefore he cut me out ok i reserve of brian walter appearing on behalf of the the city of los angeles i would like to address first of all the one of the comments that was made by conference usually the way it works i mean as you can see somebody comes in ask for a continuance and you say no i told you before the case is not going to be tried or going to trial and twenty you need to be here you have somebody else here into story  conference at which he ordered the new trial count the council who would try the case to appear and so to attorney showed up at that status conference on january third both of them said they were not available on january twenty eighth to try the case and in the ex part the mr peterson asked to have until the trial for february eighteenth and then when those two attorneys mr ferris and mr hennig showed up at the gene or a third as conference they said were not available on february eighteenth actually were not able to march then the next day they filed a document saying we're actually available february twenty fifth and judge he's waited then another week or so i think about six days to rule on the applications so well you're correct that judge feast could have waited until the twentieth i think plain mr peterson made it very clear they were not going forward and they were not going to be ready to try the case on january twenty eighth  applied the five factor test of your ish is there any requirement under that case that those factors be applied as of the projected date of trial or was the time when he did this  official i believe that there isn't a specific requirement under that case that those factors be applied as of the date of the trial specifically and i think in this instance given the number of warnings and really the very detailed reasons that the judge the set forth in his order just missing the case that he he fully satisfied all five of those fact and i gather the city's position is that notwithstanding the normal practice of waiting till the actual day since the attorneys that counsel sent to appear at the status conference said they wouldn't be ready it was just an idle act to wait for the actual day because you'd already been told they weren't going to appear that correct that's correct there was also some discussion in sas conference about the impact of further trial preparation and the fact that his wife if she did involve the litigation of all i've never filed some papers here other than that declaration i've never spoken to her she had no involvement in the eleven years of litigation yes now it's thirteen fourteen but you know i think that the judge visas order really went through the those various factors and also remind the court the judge fees had a mini status conferences over the years on this case where every staff conference would start off with a comment from judge fees about how well the case was how was the oldest the oldest case or one of the oldest cases on his docket and how he needed to resolve the case and so in addition to the very very specific warnings about dismissal that he issued in two thousand and thirteen at many prior status conferences the issue of the age of the case was raised with the parties i would also point out one of the factors that judge fees noted in his ruling was that prejudice to the defendants by the case continuing to be delayed an delayed and the statute of limitations in the underlying action went back to two thousand and one and most of the events that were going to be at issue if the case was tried on january twenty eighth two thousand and fourteen would have been related to the two thousand and one to two thousand and four time period the city was continued to face real problems with witnesses dying retiring moving away and i think is judge fees noted in his order this would require people who are knowledge about their working to have it right and and the problem the city the practical problem the city faced was the the plaintiffs could come in and testify about their off the clock work for the city defended the city has to find their supervisors and trying to find a supervisor of someone from two thousand and one in two thousand and fourteen was not exactly an easy task for us at all and and each time that this this case got delayed it became more difficult for the  city it unless of course as any other question thank you you didn't dispute his medical condition though did you we don't have any reason to dispute his medical condition and i think what the one other thing allowed on that i think is that the courts noted is now if a condition had been raised since at least two thousand and seven if not before in the case and had been the source of various delays in earlier proceedings thank you i would dispute that two thousand and seven was the beginning of a time when i was not able to work on the case i managed a case up until i found out that they were trying to have a what i call an auction and a class action which is inappropriate which is why we filed the papers about an auction the fact that i was retained counsel my obligation was to all of the clients and they had excluded me specifically from every settlement agreement they've admitted it so in the record they've now admitted it in their most recent attorneys had motion so mr halfs office to say two thousand and seven i would be wrong i became seriously ill with my and that was in two thousand and thirteen october thirtieth i went in for a fourteen hour operation where they took everything out fillet the pancreas re ducted me replumb me put me back together and for the next fifteen days i was in the hospital out a couple days back to hospital spent most of time outs on i mean because i don't think anybody is disputing the seriousness of your illness or your operation i lease i would hurt anything i am seeing it in any we're really dealing with here is the ability of the court to manage its docket and all the other factors involved here the city has made the point that you know this goes back to the two thousand and one to two thousand and four time period witnesses are dying they're leaving and s on there's a real potential prejudice of the city somehow the court has that manages docket so even taking in full the seriousness of your operation the court said we understand you can't do it you get somebody else who's ready willing and able to try when they have the status conference the people that you sent set up already you can't do it then so what's the judge supposed to do well he should have done what the process notice was to me a matter of i would have had well there was a number of steps in between i had to provide all the court papers pretrial everything ready to be on the docket if i feel that any one of those he could have dismissed the case but we had three lawyers working on that in my absence and those were not due in fact it is offended ends at that argument asked for a continuance to file their pleadings in the case and that was granted and doing that it also grants our time to do it all the dates were moved out about a week which is fine we were working that was never given an opportunity to be heard and that is the fundamental problem i have here other fundamental problem i have here is what we're hearing from the city is oh wait we the plaintiffs are delaying this case when margaret had this case i had a summary judgment on her desk ready within one and a half years to be heard i file these cases very aggressively i was not sick she took it off calendar for a settlement conference in front of a believe it was ma e with her then we went back on calendar and then the case got transferred to judge fees who set the first trial date in two thousand and seven nothing to do it me and then it got set again based on the city's motion those are my motions the city made more motions if you knew this trial i mean with respect we're focused on what judge fees did in this particular matter you're covering all kinds of other stuff all very interesting but i thought  my perspective is not the issue i think your go to five points that are to be considered here and first of those is was there a pattern of the way the only delay in this case b myself was starting when i had a diagnosis five stance surgery in october please and when i get that but that's the first the lay i had judge feast that's not agree with you in his findings he does not agree with you and i asked for an evidentiary hearing on that and an a fairness hearing on that because i knew he didn't but there is no evidentiary hearing that was conducted and the fact that he has are from sitting on a bench not with due respect not knowing what's going on behind the scene and not having any evidence that goes back beyond the october surgeries i do not think it was a continu pattern and i would tell you i've never had a continuing pattern problem in my entire career