Preview
1 Shayna Balch Santiago (SBN 304802)
E-Mail: ssantiago@fisherphillips.com
2 FISHER & PHILLIPS LLP
3200 N. Central Avenue, Suite 1550
3 Phoenix, Arizona 85012-2487
Telephone: (602) 281-3400
4 Facsimile: (602) 281-3401
5 Kathryn M. Evans (SBN 323190)
E-Mail: kmevans@fisherphillips.com
6 FISHER & PHILLIPS LLP
4747 Executive Drive, Suite 1000
7 San Diego, California 92121
Telephone: (858) 597-9600
8 Facsimile: (858) 597-9601
9 Attorneys for Defendants,
UCOMMG, LLC; UNIFIED COMMUNICATIONS
10 GROUP, INC.; KENNETH W. NEWBATT; BIANCA
NEWBATT; MITCHELL C. LIPKIN; MICHAEL J.
11 BELLAS; JIMMIE GARRETT BAKER, JR.; WESTELE
UTILITY SOLUTIONS, LLC; AND CYNTHIA BAKER
12
13 SUPERIOR COURT OF THE STATE OF CALIFORNIA
14 FOR THE COUNTY OF SANTA BARBARA - ANACAPA DIVISION
15 BUTLER AMERICA, LLC, a Delaware CASE NO.: 20CV03877
limited liability company, [Unlimited Jurisdiction]
16
Plaintiff, Assigned for all purposes to the
17 Honorable Donna D. Geck, Dept. 4
v.
18 DEFENDANTS’ OPPOSITION TO
UCOMMG, LLC, a Nevada limited liability PLAINTIFF’S EX PARTE APPLICATION
19 company; UNIFIED COMMUNICATIONS FOR ORDER CONTINUING HEARING
GROUP, INC., a dissolved Washington ON DEFENDANTS’ MOTION TO QUASH
20 corporation; KENNETH W. NEWBATT, an SERVICE OF SUMMONS
individual; BIANCA NEWBATT, an
21 individual; MITCHELL C. LIPKIN, an DATE: May 3, 2022
individual; MICHAEL J. BELLAS, an TIME: 8:30 a.m.
22 individual; JIMMIE GARRETT BAKER, JR.,
an individual; WESTELE UTILITY Complaint Filed: November 20, 2020
23 SOLUTIONS, LLC, a California limited Removal Filed: January 4, 2021
liability company; and DOES 1 through 50, FAC Filed: April 16, 2021
24 inclusive, Remanded to State Court: August 3, 2021
Trial Date: Not Set
25 Defendants.
26
27
28
DEFS’ OPPO TO PLTF’S EX PARTE APP RE CONTINUING HEARING ON DEFS’ MTQ SUMMONS
FP 43902516.2
1 I. SUMMARY OF ARGUMENT
2 Specially Appearing Defendants UCOMMG, LLC, Unified Communications Group,
3 Inc., Kenneth Newbatt, Bianca Newbatt, Mitchell Lipkin, and Michael Bellas (collectively, the
4 “Nonresident Defendants”) oppose Plaintiff Butler America, LLC’s ex parte application
5 requesting a four-month continuance on the Nonresident Defendants’ motion to quash service of
6 summons for lack of personal jurisdiction. As discussed below, there is no justification for
7 Plaintiff’s requested continuance as Plaintiff has failed to demonstrate good cause to delay the
8 hearing on the motion to quash.
9 There are currently no discovery motions pending. Defendants already agreed to postpone
10 Plaintiff’s deadline to file its supplemental opposition to its motion to quash and offered to
11 stipulate to continue the hearing on the Nonresident Defendants’ motion to quash currently set
12 for May 20, 2022 by two weeks (Plaintiff omitted this offer from its application and, in fact,
13 Plaintiff falsely states that “Defendants are unwilling to stipulate to a continuance of the hearing
14 date” (see Application p. 11)). Plaintiff refused Defendants’ offer to stipulate to a continuance
15 and instead filed this ex parte application.
16 Plaintiff’s application does not demonstrate extraordinary necessity to justify the ex parte
17 relief requested – namely a further four-month delay on the Nonresident Defendants’ motion to
18 quash that was filed September 20, 2021. Plaintiff claims it will be “substantially prejudice [sic]
19 in that it will effectively be denied its right to jurisdictional discovery.” (Application p. 12.)
20 Plaintiff has not been denied any such thing. Nonresident Defendants Kenneth Newbatt, Mitch
21 Lipkin, and Michael Bellas each responded to 15 jurisdictional discovery requests. Plaintiff has
22 not taken issue with any of those responses, and the deadline to file a motion to compel further
23 responses has passed. Nonresident Defendants UCOMMG and Unified Communications each
24 substantively responded to 37 jurisdictional discovery requests and provided nearly 200
25 documents in response to Plaintiff’s Requests for Production. Plaintiff has not sought any
26 jurisdictional discovery related to Nonresident Defendant Bianca Newbatt. Accordingly, Plaintiff
27 has not been “denied its right to jurisdictional discovery.”
28 ///
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DEFS’ OPPO TO PLTF’S EX PARTE APP RE CONTINUING HEARING ON DEFS’ MTQ SUMMONS
FP 43902516.2
1 Accordingly, Plaintiff’s request should be denied as there is no justification for the
2 requested ex parte relief.
3 II. RELEVANT FACTS
4 A. The Nonresident Defendants Were Forced to File a Several Motions
5 Regarding the Issue of California’s Lack of Personal Jurisdiction Over Them
6 Defense counsel informed Plaintiff’s counsel of the lack of personal jurisdiction over the
7 Nonresident Defendants, and the other deficiencies in the Complaint, in January 2021.
8 (Declaration of Kathryn M. Evans (“Evans Decl.”) ¶ 2.) After numerous meet-and-confer efforts,
9 the Nonresident Defendants were forced to file two motions to dismiss in federal court on
10 personal jurisdiction grounds. (Ibid.) The matter was remanded to this Court on August 3, 2021
11 prior to the district court ruling on Defendants’ motion to dismiss. (Evans Decl. ¶ 3.)
12 After remand, Defendants again requested that Plaintiff amend its complaint to resolve
13 the jurisdictional deficiencies and gave Plaintiff ample time to do so. (Evans Decl. ¶ 4.) Plaintiff
14 refused to file an amended pleading. (Ibid.) As a result, the Nonresident Defendants were forced
15 to file their motion to quash service of summons for lack of personal jurisdiction before this Court
16 on September 20, 2021. (Ibid.)
17 B. The Hearing on the Motion to Quash Is Continued to Allow Plaintiff to
18 Conduct Jurisdictional Discovery and the Nonresident Defendants Respond
19 to the Jurisdictional Discovery Requests
20 Despite being aware of the Nonresident Defendants’ position on personal jurisdiction for
21 nearly a year, Plaintiff waited until September 27, 2021 to serve discovery requests on
22 Defendants UCOMMG, LLC and Unified Communications Group, Inc. (Evans Decl. ¶ 5.)
23 Plaintiff never sought jurisdictional discovery in the nine months prior and had previously filed
24 an Opposition to the Nonresident Defendants’ motion to dismiss on personal jurisdiction grounds
25 in federal court without claiming it required jurisdictional discovery. (Ibid.)
26 On October 29, 2021, UCOMMG and Unified Communications served responses to the
27 discovery requests. (Evans Decl. ¶ 6.) On November 2, 2021, Plaintiff served discovery requests
28 on Defendants Kenneth Newbatt, Mitchell Lipkin, and Michael Bellas. (Evans Decl. ¶ 7.) The
2
DEFS’ OPPO TO PLTF’S EX PARTE APP RE CONTINUING HEARING ON DEFS’ MTQ SUMMONS
FP 43902516.2
1 requests were identical to the requests that had been previously served on UCOMMG and Unified
2 Communications. To date, Plaintiff has not propounded any discovery requests on Defendant
3 Bianca Newbatt. (Ibid.)
4 On December 3, 2021, this Court issued a ruling continuing the Nonresident Defendants’
5 motion to quash to March 11, 2022 to permit Plaintiff to conduct jurisdictional discovery. (Evans
6 Decl. ¶ 8, Ex. A.) The Court set a supplemental briefing schedule requiring Plaintiff to serve its
7 supplemental opposition on or before February 18, 2022 and the Nonresident Defendants to file
8 a supplemental reply on or before February 28, 2022. (Ibid.) In pertinent part, the Court’s ruling
9 stated: “To the extent that any discovery disputes arise, the parties are expected to proceed with
10 diligence so that jurisdictional discovery is completed to meet the deadlines for the supplemental
11 briefing.” (Ibid.)
12 On December 9, 2021, Defendants Kenneth Newbatt, Mitchell Lipkin, and Michael
13 Bellas served responses to the discovery requests. (Evans Decl. ¶ 9.) Plaintiff never made any
14 attempt to meet and confer with Defendants Newbatt, Lipkin, and Bellas regarding the discovery
15 responses and Plaintiff’s motion to compel deadline passed long ago. (Ibid.) Plaintiffs have made
16 no argument that they were deprived from taking jurisdictional discovery as to Defendants
17 Kenneth Newbatt, Bianca Newbatt, Mitchell Lipkin, and Michael Bellas. Yet Plaintiff seeks to
18 inexplicably postpone the motion to quash deadline for each of these Nonresident Defendants (in
19 addition to corporate defendants UCOMMG and Unified Communications) by four months.
20 Between December 22, 2021 and December 29, 2021, the parties met and conferred
21 regarding UCOMMG’s and Unified Communications’ discovery responses. (Evans Decl. ¶ 10.)
22 As part of the meet and confer process, UCOMMG and Unified Communications agreed to
23 supplement their responses to Special Interrogatory Nos. 13-14, 17-18, 22-24. (Ibid.)
24 C. Plaintiff Files Motions to Compel As to a Limited Number of Discovery
25 Requests and UCOMMG and Unified Communications Serve Responses in
26 Accordance with the Court’s April 8, 2022 Order
27 Plaintiff then filed two motions to compel on January 4, 2022 regarding UCOMMG and
28 Unified Communications’ responses to Requests for Production Nos. 3-5, 9-13, 16-21 and
3
DEFS’ OPPO TO PLTF’S EX PARTE APP RE CONTINUING HEARING ON DEFS’ MTQ SUMMONS
FP 43902516.2
1 Special Interrogatories Nos. 10, 11, 12, 19, 20, 21, and 25. (Evans Decl. ¶ 11.) Plaintiff did not
2 file any motions with regard to any of the other Nonresident Defendants. (Ibid.)
3 On February 9, 2022, Plaintiff filed an ex parte application to continue the hearing on the
4 Nonresident Defendants’ motion to quash to May 20, 2022, with Plaintiff’s supplemental
5 opposition due on April 29, 2022 and Defendants’ supplemental reply due on May 9, 2022.
6 (Evans Decl. ¶ 12.) The Court granted Plaintiff’s ex parte application. (Ibid.)
7 On April 8, 2022, the Court adopted its tentative ruling ordering UCOMMG and Unified
8 Communications Group to provide further responses to Requests for Production Nos. 3-5, 9-13,
9 16-21 and Special Interrogatories Nos. 10, 11, 12, 19, 20, 21, and 25, in accordance with the
10 April 8, 2022 order and without the objections overruled therein, on or before April 20, 2022.
11 (Evans Decl. ¶ 14, Ex. C.)
12 In compliance with the Court’s order, UCOMMG and Unified Communications Group
13 served supplemental responses to Requests for Production Nos. 3-5, 9-13, 16-21 and Special
14 Interrogatories Nos. 10, 11, 12, 19, 20, 21, and 25 without the objections overruled by the Court
15 on April 20, 2022. (Evans Decl. ¶ 15, Ex. D.) As part of the responses, UCOMMG and Unified
16 Communications referenced the limitations expressly incorporated by the Court in its April 8,
17 2022 ruling.
18 Without meeting and conferring with Defendants’ counsel, Plaintiff served an
19 “Attachment” to its April 21, 2022 case management statement contending that the April 20,
20 2022 supplemental responses were insufficient and requesting the Court continue the dates
21 associated with the Nonresident Defendants’ motion to quash. (Evans Decl. ¶ 17, Ex. F.)
22 Since Plaintiff had not made any attempt to meet and confer with Defendants’ counsel
23 regarding the April 20, 2022 responses, on April 26, 2022, Defendants’ counsel emailed
24 Plaintiff’s counsel about the language Plaintiff included as an attachment to Plaintiff’s case
25 management statement. (Evans Decl. ¶ 18, Ex. G.) Specifically, Defendants’ counsel stated
26 “Given the quickly approaching deadlines for the May 20, 2022 hearing, we will plan on calling
27 you tomorrow, April 27, 2022 at 11:00 a.m. to address the deficiencies plaintiff believes are
28 present in the supplemental responses served on April 20, 2022” (Ibid.)
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DEFS’ OPPO TO PLTF’S EX PARTE APP RE CONTINUING HEARING ON DEFS’ MTQ SUMMONS
FP 43902516.2
1 On Wednesday, April 27, 2022, Defendants’ counsel called Plaintiff’s counsel and the
2 parties met and conferred over Defendants’ supplemental discovery responses provided on April
3 20, 2022 for over an hour. (Evans Decl. ¶ 19.) While the parties were not able to conclusively
4 resolve all issues, the parties made progress towards the resolution of the issues regarding the
5 limiting language of the responses as well as Defendants’ document production and privilege
6 log. (Ibid.)
7 Specifically, with regard to the limiting language in the responses, Defendants’ counsel
8 explained the need for language incorporating the court-imposed limitations to the discovery
9 requests to avoid any misperceptions or misunderstandings regarding Defendant’s responses.
10 (Ibid.) Plaintiff’s counsel insisted that Defendants provide answers to the discovery requests with
11 no limiting language from the Court order prior to each substantive in the objections portion of
12 each response. (Ibid.) The parties generally discussed including some mutually agreeable
13 limiting language so that Defendants could remove its limitations language from the order that
14 was incorporated prior to the substantive responses. (Ibid.) Defendants’ counsel asked Plaintiff’s
15 counsel to propose limiting language that Plaintiff was comfortable with. (Ibid.) Plaintiff’s
16 counsel agreed to do so but indicated that he did not believe there was sufficient time to do so
17 and also prepare its supplemental opposition to the motion to quash. (Ibid.) Accordingly, the
18 parties agreed to continue Plaintiff’s deadline to submit its supplemental opposition to the motion
19 to quash from April 29 to May 4 and continue the Nonresident Defendants’ reply deadline from
20 May 9 to May 11 to allow the parties time to meet and confer further. (Ibid.) The parties filed a
21 joint stipulation to this effect on April 29, 2022.
22 To address Plaintiff’s concerns, Defendants’ counsel offered to propose its own draft
23 limiting language to the discovery requests, taking into account the Court’s order and the
24 discussions of counsel during the meet and confer. Defendants’ counsel provided a “DRAFT”
25 supplemental response to UCOMMG’s Third Supplemental Responses to Plaintiff’s Special
26 Interrogatories that same evening on April 27, 2022, with modifications to the discovery requests
27 included, and all limiting language quoted from the order removed. (Evans Decl. ¶ 21, Ex. I.)
28 The substantive responses to the discovery requests remained the same. (Ibid.) Defendants’
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DEFS’ OPPO TO PLTF’S EX PARTE APP RE CONTINUING HEARING ON DEFS’ MTQ SUMMONS
FP 43902516.2
1 counsel explained that if the revisions were acceptable to Plaintiff, Defendants would quickly
2 supplement the remaining discovery responses in the same manner. (Ibid.)
3 On Thursday, April 28, 2022, Plaintiff’s counsel responded and stated that the proposed
4 “DRAFT” responses were unacceptable and that he would propose alternative language for the
5 responses. (Evans Decl. ¶ 22, Ex. J.) To date, Plaintiff’s counsel has not proposed any such
6 language. On Friday, April 29, 2022, since Plaintiff’s counsel had not yet provided any proposed
7 alternative language, Defendants’ counsel sent another email with a second attempt at proposed
8 modified prefatory language. (Evans Decl. ¶ 23, Ex. K.) Later that day, Plaintiff’s counsel sent
9 an email again rejecting Defendants’ proposed language and proposing partial language
10 (language that did not actually address any of the court limitations). (Evans Decl. ¶ 24, Ex. L.)
11 As of the date of the filing of this opposition, Monday, May 2, 2022, Defendants’ counsel
12 are in the process of preparing a third attempted revision of its supplemental response to
13 UCOMMG’s Third Supplemental Responses to Plaintiff’s Special Interrogatories in yet another
14 attempt to resolve the issue. (Evans Decl. ¶ 27.) Defendants’ counsel plan to send the “DRAFT”
15 responses to Plaintiff’s counsel no later than Tuesday, May 3, 2022 (with modifications to the
16 prefatory language, responses – which Plaintiff has not taken issue with - to remain the same),
17 along with a document production removing some of the redactions. (Ibid.) By brief explanation,
18 redactions were made based on confidentiality, trade secret and privacy concerns – i.e.
19 confidential (not public) contracts of third parties containing personally identifying information
20 and a contract with an out of state customer for work outside of California. (Ibid.) The parties
21 have been meeting and conferring over these redactions. (Ibid.) Defendants are also working on
22 adding some additional detail to their previously provided privilege log. (Ibid.) Accordingly, each
23 of the issues identified in Plaintiff’s Application as to the discovery requests addressed in the
24 Court’s April 8, 2022 order have been addressed.
25 D. Plaintiff Has Not Identified Any Issues with Defendants’ Substantive
26 Discovery Responses That Were Not in Plaintiff’s Motions to Compel
27 UCOMMG and Unified Communications served supplemental discovery responses to
28 Special Interrogatory Nos. 13-14, 17-18, 22-24 on March 18, 2022. (Evans Decl. ¶ 13, Ex. B.)
6
DEFS’ OPPO TO PLTF’S EX PARTE APP RE CONTINUING HEARING ON DEFS’ MTQ SUMMONS
FP 43902516.2
1 The discovery requests addressed in the March 18, 2022 supplemental responses were not the
2 subject of Plaintiff’s prior motions to compel and these discovery requests have never been before
3 the Court. On April 20, 2022, for the first time, Plaintiff sent meet and confer letters regarding
4 the March 18 supplemental responses. (Evans Decl. ¶ 16, Ex. B.) UCOMMG and Unified
5 Communications Group responded to Plaintiff’s letters on April 26, 2022 and the very next day,
6 on April 27, 2022, UCOMMG and Unified Communications Group served further supplemental
7 discovery responses addressing each of the issues Plaintiff raised in its April 20, 2022 meet and
8 confer letters. (Evans Decl. ¶¶ 18, 20, Exs. G, H.) To date, Plaintiff has not identified any issues
9 with the substantive responses provided on April 27, 2022, and instead simply claims, with no
10 legal authority, that UCOMMG and Unified Communications must withdraw each of their
11 objections contained in their April 27, 2022 supplemental responses, even though the objections
12 to these requests have never been before the Court. Plaintiff’s argument appears to be that
13 because the Court overruled some (but not all) similar objections related to other discovery
14 requests, the Court has already implicitly ruled on the related requests that have not been before
15 the Court.
16 E. Plaintiff’s Counsel Refused Defendants’ Counsel’s Offer to Stipulate to
17 Continue the Hearing on the Nonresident Defendants’ Motion to Quash
18 The morning of May 1, 2022, after receiving Plaintiff’s counsel’s notice regarding the
19 instant ex parte application at midnight the night before (which did not state how long Plaintiff
20 sought to continue the hearing on the motion to quash), Defendants’ counsel emailed Plaintiff’s
21 counsel and offered to stipulate to continue the hearing on the Nonresident Defendants’ Motion
22 to Quash by two weeks to allow the parties time to finish meeting and conferring on UCOMMG
23 and Unified Communications Group’s supplemental discovery responses. (Evans Decl. ¶ 25, Ex.
24 M.) Plaintiff’s counsel rejected Defendants’ counsel’s proposal and, for the first time, indicated
25 that it would be seeking a four-month long continuance to September 2022. (Evans Decl. ¶ 26,
26 Ex. N.) Plaintiff’s counsel stated that the ex parte application would only be avoided if
27 Defendants’ counsel agreed to continue the hearing to September 2022—exactly one year
28 from the date of the Nonresident Defendants’ filing of the motion to quash. (Ibid.)
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DEFS’ OPPO TO PLTF’S EX PARTE APP RE CONTINUING HEARING ON DEFS’ MTQ SUMMONS
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1 III. PLAINTIFF’S EX PARTE MUST BE DENIED BECAUSE THERE IS NO
2 EXIGENT CIRCUMSTANCE THAT REQUIRES EMERGENCY RELIEF
3 Ex parte applications for relief are permitted only in limited circumstances. (6 Witkin,
4 Cal. Procedure (5th ed. 2008) Proceedings Without Trial, § 58, p. 483.) One such circumstance
5 is “[w]here there is pressing necessity for immediate relief . . . .” (Id. at p. 484.) A trial court
6 should deny an ex parte application absent the requisite showing. (See Ferraro v. Camarlinghi
7 (2008) 161 Cal.App.4th 509, 523, 551, fn. 30.)
8 To obtain ex parte relief, "[a]n applicant must make an affirmative factual showing in a
9 declaration containing competent testimony based on personal knowledge of irreparable harm,
10 immediate danger, or any other statutory basis for granting relief ex parte.” (Cal. R. Ct.
11 3.1202(c).) In other words, the applicant must show that there is some emergency necessitating
12 ex parte relief. (Turner v. Superior Court (1977) 72 Cal.App.3d 804, 809 n.2 (1977) ["an order
13 upon ex parte application should only be issued in cases of emergency which make it
14 imperatively necessary to act at once without notice."].) Plaintiff has not carried its burden to
15 make an affirmative factual showing of irreparable harm or immediate danger.
16 A. The Court Should, At A Minimum, Proceed With Hearing The Motion to
17 Quash on May 20 for the Individual Nonresident Defendants Because There
18 Are No Outstanding Jurisdictional Discovery Issues for These Defendants
19 Notably, there are no outstanding discovery requests or discovery motions related to the
20 four individual Nonresident Defendants –Kenneth Newbatt, Bianca Newbatt, Mitchell Lipkin,
21 and Michael Bellas. And the Court should, at a minimum, hear the motion to quash as to those
22 Nonresident Defendants on May 20, 2022, as scheduled. Based on its ex parte application,
23 Plaintiff only takes issue with two sets of UCOMMG’s and Unified Communication’s
24 supplemental discovery responses.
25 ///
26 ///
27 ///
28 ///
8
DEFS’ OPPO TO PLTF’S EX PARTE APP RE CONTINUING HEARING ON DEFS’ MTQ SUMMONS
FP 43902516.2
1 B. As To UCOMMG and Unified Communications, The Court Should Either
2 Deny The Ex Parte Request, or Move the Motion to Quash Hearing (and
3 Other Motions Pending On that Same Date) by Two Weeks, As Previously
4 Offered By Defendants (And Which Plaintiff Rejected)
5 As to Plaintiff’s claimed issues with Defendants UCOMMG and Unified
6 Communications’ supplemental discovery responses that were served on April 20, 2022 in
7 accordance with the Court’s April 8, 2022 Order, Plaintiff has not identified any issues in its ex
8 parte application with the actual substance of those discovery responses. Instead, Plaintiff takes
9 issue with limiting language quoted from the Court order that appears prior to the substance of
10 Defendants responses. Plaintiff has unilaterally demanded that Defendants remove all limiting
11 language imposed by the Court.
12 Defense counsel has made several proposals removing the language at issue (once
13 telephonically, and twice in writing). As discussed above, Defense counsel is in the process of
14 preparing its third written proposal aimed specifically at addressing Plaintiff’s concerns over
15 Defendant’s quoting of the Court order in its responses. This third written proposal will be served
16 by tomorrow, May 3, 2022.
17 As to UCOMMG and Unified Communications’ supplemental responses to Special
18 Interrogatories Nos. 13-14, 17-18, 22-24 (i.e. to the requests not at issue in Plaintiff’s motions to
19 compel) Plaintiff has similarly not identified any issues with the substantive supplemental
20 discovery responses provided on April 27, 2022, and instead simply claims that UCOMMG and
21 Unified Communications must withdraw all objections contained in the April 27, 2022
22 supplemental responses, even though the objections to these requests have never been before the
23 Court, because the Court overruled some (but not all) similar objections related to other discovery
24 requests. Again, UCOMMG and Unified Communications provided substantive responses to
25 each of the discovery requests and Plaintiff has not identified any issues with the actual responses
26 provided. Accordingly, there is no reason to delay the hearing on the motion to quash based on
27 these responses.
28 ///
9
DEFS’ OPPO TO PLTF’S EX PARTE APP RE CONTINUING HEARING ON DEFS’ MTQ SUMMONS
FP 43902516.2
1 The parties met and conferred on these issues for the first time less than a week ago on
2 Wednesday, April 27, 2022, when defense counsel called Plaintiff’s counsel to discuss. The
3 parties continued to meet and confer via email on Thursday, April 28 and Friday, April 29, during
4 which defense counsel again offered several times to get on another call to discuss. Plaintiff’s
5 counsel served its notice of the instant ex parte at midnight on Sunday, May 1, after just three
6 days (and one phone call, despite Defendants’ counsel offer for multiple calls) of meet and confer
7 efforts. During the three days, the parties made progress on resolution and any remaining issues
8 could easily be resolved in the two-week continuance proposed by Defendants’ counsel.
9 Accordingly, Plaintiff’s requested relief in its ex parte application for a further four-month
10 continuance is not reasonable and Plaintiff has not made an affirmative factual showing that
11 irreparable harm will occur unless its ex parte application is granted.
12 IV. CONCLUSION
13 Based on the foregoing, Defendants respectfully request that the Court deny Plaintiff’s ex
14 parte application in its entirety. As Defendants are aware that Plaintiff’s supplemental Opposition
15 to the Nonresident Defendants’ motion to quash is currently due the day after the hearing on this
16 ex parte application, Defendants’ prior offer to continue the hearing on the motion to quash by
17 two weeks still stands.
18 In the event the Court is willing to continue the hearing on the Nonresident Defendants’
19 motion to quash by more than two weeks, Defendants request that the Court continue the hearing
20 on the motion to quash service of summons as to Defendants UCOMMG, LLC and Unified
21 Communications Group, Inc. only and maintain the currently set briefing and hearing schedule
22 for the other four Nonresident Defendants – Kenneth Newbatt, Bianca Newbatt, Mitchell Lipkin,
23 and Michael Bellas.
24 DATE: May 2, 2022 FISHER & PHILLIPS LLP
25
By:
26 Shayna Balch Santiago
Kathryn M. Evans
27 Attorneys for Defendants,
UCOMMG, LLC; Unified Communications
28 Group, Inc.; et al.
10
DEFS’ OPPO TO PLTF’S EX PARTE APP RE CONTINUING HEARING ON DEFS’ MTQ SUMMONS
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1 PROOF OF SERVICE
(CCP §§1013(a) and 2015.5)
2
I, the undersigned, am at least 18 years old and not a party to this action. I am employed
3 in the County of San Diego with the law offices of Fisher & Phillips LLP and its business address
is 4747 Executive Drive, Suite 1000, San Diego, California 92121.
4
On May 2, 2022, I served the following document(s) DEFENDANTS’ OPPOSITION
5 TO PLAINTIFF’S EX PARTE APPLICATION FOR ORDER CONTINUING HEARING
ON DEFENDANTS’ MOTION TO QUASH SERVICE OF SUMMONS on the person(s)
6 listed below by placing the original a true copy thereof enclosed in sealed envelope(s)
addressed as follows:
7
8 Paul P. Young Tel: (626) 744-1838
Joseph Chora Fax: (626) 744-3167
9 Cameron H. Totten E-Mail: paul@cym.law; joseph@cym.law;
Armen Manasserian cameron@cym.law; armen@cym.law;
10 Scott O’Halloran scott@cym.law
CHORA YOUNG LLP
11 650 Sierra Madre Villa Ave, Suite 304 Attorneys for Plaintiff Butler America, LLC
Pasadena, California 91107
12
[by MAIL] - I enclosed the document(s) in a sealed envelope or package addressed to
13 the person(s) whose address(es) are listed above and placed the envelope for collection
and mailing, following our ordinary business practices. I am readily familiar with this
14 business’s practice for collecting and processing correspondence for mailing. On the
same day that correspondence is placed for collection and mailing, it is deposited in the
15 ordinary course of business with the United States Postal Service in San Diego California,
in a sealed envelope with postage fully prepaid.
16 [by OVERNIGHT DELIVERY] - I enclosed the document(s) in an envelope or package
provided by an overnight delivery carrier and addressed to the person(s) at the address(es)
17 listed above. I placed the envelope or package for collection and overnight delivery at an
office or a regularly utilized drop box of the overnight carrier.
18 [by ELECTRONIC SERVICE] - Based on a court order or an agreement of the parties
to accept service by electronic transmission, I electronically served the document(s) to
19 the person(s) at the electronic service address(es) listed above.
20 I declare under penalty of perjury, under the laws of the State of California, that the
foregoing is true and correct.
21
Executed May 2, 2022 at San Diego, California.
22
Amanda Funkhouser By:
23 Print Name Signature
24
25
26
27
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1
PROOF OF SERVICE
FP 43902516.2
Preview
1 Shayna Balch Santiago (SBN 304802) E-Mail: ssantiago@fisherphillips.com 2 FISHER & PHILLIPS LLP 3200 N. Central Avenue, Suite 1550 3 Phoenix, Arizona 85012-2487 Telephone: (602) 281-3400 4 Facsimile: (602) 281-3401 5 Kathryn M. Evans (SBN 323190) E-Mail: kmevans@fisherphillips.com 6 FISHER & PHILLIPS LLP 4747 Executive Drive, Suite 1000 7 San Diego, California 92121 Telephone: (858) 597-9600 8 Facsimile: (858) 597-9601 9 Attorneys for Defendants, UCOMMG, LLC; UNIFIED COMMUNICATIONS 10 GROUP, INC.; KENNETH W. NEWBATT; BIANCA NEWBATT; MITCHELL C. LIPKIN; MICHAEL J. 11 BELLAS; JIMMIE GARRETT BAKER, JR.; WESTELE UTILITY SOLUTIONS, LLC; AND CYNTHIA BAKER 12 13 SUPERIOR COURT OF THE STATE OF CALIFORNIA 14 FOR THE COUNTY OF SANTA BARBARA - ANACAPA DIVISION 15 BUTLER AMERICA, LLC, a Delaware CASE NO.: 20CV03877 limited liability company, [Unlimited Jurisdiction] 16 Plaintiff, Assigned for all purposes to the 17 Honorable Donna D. Geck, Dept. 4 v. 18 DEFENDANTS’ OPPOSITION TO UCOMMG, LLC, a Nevada limited liability PLAINTIFF’S EX PARTE APPLICATION 19 company; UNIFIED COMMUNICATIONS FOR ORDER CONTINUING HEARING GROUP, INC., a dissolved Washington ON DEFENDANTS’ MOTION TO QUASH 20 corporation; KENNETH W. NEWBATT, an SERVICE OF SUMMONS individual; BIANCA NEWBATT, an 21 individual; MITCHELL C. LIPKIN, an DATE: May 3, 2022 individual; MICHAEL J. BELLAS, an TIME: 8:30 a.m. 22 individual; JIMMIE GARRETT BAKER, JR., an individual; WESTELE UTILITY Complaint Filed: November 20, 2020 23 SOLUTIONS, LLC, a California limited Removal Filed: January 4, 2021 liability company; and DOES 1 through 50, FAC Filed: April 16, 2021 24 inclusive, Remanded to State Court: August 3, 2021 Trial Date: Not Set 25 Defendants. 26 27 28 DEFS’ OPPO TO PLTF’S EX PARTE APP RE CONTINUING HEARING ON DEFS’ MTQ SUMMONS FP 43902516.2 1 I. SUMMARY OF ARGUMENT 2 Specially Appearing Defendants UCOMMG, LLC, Unified Communications Group, 3 Inc., Kenneth Newbatt, Bianca Newbatt, Mitchell Lipkin, and Michael Bellas (collectively, the 4 “Nonresident Defendants”) oppose Plaintiff Butler America, LLC’s ex parte application 5 requesting a four-month continuance on the Nonresident Defendants’ motion to quash service of 6 summons for lack of personal jurisdiction. As discussed below, there is no justification for 7 Plaintiff’s requested continuance as Plaintiff has failed to demonstrate good cause to delay the 8 hearing on the motion to quash. 9 There are currently no discovery motions pending. Defendants already agreed to postpone 10 Plaintiff’s deadline to file its supplemental opposition to its motion to quash and offered to 11 stipulate to continue the hearing on the Nonresident Defendants’ motion to quash currently set 12 for May 20, 2022 by two weeks (Plaintiff omitted this offer from its application and, in fact, 13 Plaintiff falsely states that “Defendants are unwilling to stipulate to a continuance of the hearing 14 date” (see Application p. 11)). Plaintiff refused Defendants’ offer to stipulate to a continuance 15 and instead filed this ex parte application. 16 Plaintiff’s application does not demonstrate extraordinary necessity to justify the ex parte 17 relief requested – namely a further four-month delay on the Nonresident Defendants’ motion to 18 quash that was filed September 20, 2021. Plaintiff claims it will be “substantially prejudice [sic] 19 in that it will effectively be denied its right to jurisdictional discovery.” (Application p. 12.) 20 Plaintiff has not been denied any such thing. Nonresident Defendants Kenneth Newbatt, Mitch 21 Lipkin, and Michael Bellas each responded to 15 jurisdictional discovery requests. Plaintiff has 22 not taken issue with any of those responses, and the deadline to file a motion to compel further 23 responses has passed. Nonresident Defendants UCOMMG and Unified Communications each 24 substantively responded to 37 jurisdictional discovery requests and provided nearly 200 25 documents in response to Plaintiff’s Requests for Production. Plaintiff has not sought any 26 jurisdictional discovery related to Nonresident Defendant Bianca Newbatt. Accordingly, Plaintiff 27 has not been “denied its right to jurisdictional discovery.” 28 /// 1 DEFS’ OPPO TO PLTF’S EX PARTE APP RE CONTINUING HEARING ON DEFS’ MTQ SUMMONS FP 43902516.2 1 Accordingly, Plaintiff’s request should be denied as there is no justification for the 2 requested ex parte relief. 3 II. RELEVANT FACTS 4 A. The Nonresident Defendants Were Forced to File a Several Motions 5 Regarding the Issue of California’s Lack of Personal Jurisdiction Over Them 6 Defense counsel informed Plaintiff’s counsel of the lack of personal jurisdiction over the 7 Nonresident Defendants, and the other deficiencies in the Complaint, in January 2021. 8 (Declaration of Kathryn M. Evans (“Evans Decl.”) ¶ 2.) After numerous meet-and-confer efforts, 9 the Nonresident Defendants were forced to file two motions to dismiss in federal court on 10 personal jurisdiction grounds. (Ibid.) The matter was remanded to this Court on August 3, 2021 11 prior to the district court ruling on Defendants’ motion to dismiss. (Evans Decl. ¶ 3.) 12 After remand, Defendants again requested that Plaintiff amend its complaint to resolve 13 the jurisdictional deficiencies and gave Plaintiff ample time to do so. (Evans Decl. ¶ 4.) Plaintiff 14 refused to file an amended pleading. (Ibid.) As a result, the Nonresident Defendants were forced 15 to file their motion to quash service of summons for lack of personal jurisdiction before this Court 16 on September 20, 2021. (Ibid.) 17 B. The Hearing on the Motion to Quash Is Continued to Allow Plaintiff to 18 Conduct Jurisdictional Discovery and the Nonresident Defendants Respond 19 to the Jurisdictional Discovery Requests 20 Despite being aware of the Nonresident Defendants’ position on personal jurisdiction for 21 nearly a year, Plaintiff waited until September 27, 2021 to serve discovery requests on 22 Defendants UCOMMG, LLC and Unified Communications Group, Inc. (Evans Decl. ¶ 5.) 23 Plaintiff never sought jurisdictional discovery in the nine months prior and had previously filed 24 an Opposition to the Nonresident Defendants’ motion to dismiss on personal jurisdiction grounds 25 in federal court without claiming it required jurisdictional discovery. (Ibid.) 26 On October 29, 2021, UCOMMG and Unified Communications served responses to the 27 discovery requests. (Evans Decl. ¶ 6.) On November 2, 2021, Plaintiff served discovery requests 28 on Defendants Kenneth Newbatt, Mitchell Lipkin, and Michael Bellas. (Evans Decl. ¶ 7.) The 2 DEFS’ OPPO TO PLTF’S EX PARTE APP RE CONTINUING HEARING ON DEFS’ MTQ SUMMONS FP 43902516.2 1 requests were identical to the requests that had been previously served on UCOMMG and Unified 2 Communications. To date, Plaintiff has not propounded any discovery requests on Defendant 3 Bianca Newbatt. (Ibid.) 4 On December 3, 2021, this Court issued a ruling continuing the Nonresident Defendants’ 5 motion to quash to March 11, 2022 to permit Plaintiff to conduct jurisdictional discovery. (Evans 6 Decl. ¶ 8, Ex. A.) The Court set a supplemental briefing schedule requiring Plaintiff to serve its 7 supplemental opposition on or before February 18, 2022 and the Nonresident Defendants to file 8 a supplemental reply on or before February 28, 2022. (Ibid.) In pertinent part, the Court’s ruling 9 stated: “To the extent that any discovery disputes arise, the parties are expected to proceed with 10 diligence so that jurisdictional discovery is completed to meet the deadlines for the supplemental 11 briefing.” (Ibid.) 12 On December 9, 2021, Defendants Kenneth Newbatt, Mitchell Lipkin, and Michael 13 Bellas served responses to the discovery requests. (Evans Decl. ¶ 9.) Plaintiff never made any 14 attempt to meet and confer with Defendants Newbatt, Lipkin, and Bellas regarding the discovery 15 responses and Plaintiff’s motion to compel deadline passed long ago. (Ibid.) Plaintiffs have made 16 no argument that they were deprived from taking jurisdictional discovery as to Defendants 17 Kenneth Newbatt, Bianca Newbatt, Mitchell Lipkin, and Michael Bellas. Yet Plaintiff seeks to 18 inexplicably postpone the motion to quash deadline for each of these Nonresident Defendants (in 19 addition to corporate defendants UCOMMG and Unified Communications) by four months. 20 Between December 22, 2021 and December 29, 2021, the parties met and conferred 21 regarding UCOMMG’s and Unified Communications’ discovery responses. (Evans Decl. ¶ 10.) 22 As part of the meet and confer process, UCOMMG and Unified Communications agreed to 23 supplement their responses to Special Interrogatory Nos. 13-14, 17-18, 22-24. (Ibid.) 24 C. Plaintiff Files Motions to Compel As to a Limited Number of Discovery 25 Requests and UCOMMG and Unified Communications Serve Responses in 26 Accordance with the Court’s April 8, 2022 Order 27 Plaintiff then filed two motions to compel on January 4, 2022 regarding UCOMMG and 28 Unified Communications’ responses to Requests for Production Nos. 3-5, 9-13, 16-21 and 3 DEFS’ OPPO TO PLTF’S EX PARTE APP RE CONTINUING HEARING ON DEFS’ MTQ SUMMONS FP 43902516.2 1 Special Interrogatories Nos. 10, 11, 12, 19, 20, 21, and 25. (Evans Decl. ¶ 11.) Plaintiff did not 2 file any motions with regard to any of the other Nonresident Defendants. (Ibid.) 3 On February 9, 2022, Plaintiff filed an ex parte application to continue the hearing on the 4 Nonresident Defendants’ motion to quash to May 20, 2022, with Plaintiff’s supplemental 5 opposition due on April 29, 2022 and Defendants’ supplemental reply due on May 9, 2022. 6 (Evans Decl. ¶ 12.) The Court granted Plaintiff’s ex parte application. (Ibid.) 7 On April 8, 2022, the Court adopted its tentative ruling ordering UCOMMG and Unified 8 Communications Group to provide further responses to Requests for Production Nos. 3-5, 9-13, 9 16-21 and Special Interrogatories Nos. 10, 11, 12, 19, 20, 21, and 25, in accordance with the 10 April 8, 2022 order and without the objections overruled therein, on or before April 20, 2022. 11 (Evans Decl. ¶ 14, Ex. C.) 12 In compliance with the Court’s order, UCOMMG and Unified Communications Group 13 served supplemental responses to Requests for Production Nos. 3-5, 9-13, 16-21 and Special 14 Interrogatories Nos. 10, 11, 12, 19, 20, 21, and 25 without the objections overruled by the Court 15 on April 20, 2022. (Evans Decl. ¶ 15, Ex. D.) As part of the responses, UCOMMG and Unified 16 Communications referenced the limitations expressly incorporated by the Court in its April 8, 17 2022 ruling. 18 Without meeting and conferring with Defendants’ counsel, Plaintiff served an 19 “Attachment” to its April 21, 2022 case management statement contending that the April 20, 20 2022 supplemental responses were insufficient and requesting the Court continue the dates 21 associated with the Nonresident Defendants’ motion to quash. (Evans Decl. ¶ 17, Ex. F.) 22 Since Plaintiff had not made any attempt to meet and confer with Defendants’ counsel 23 regarding the April 20, 2022 responses, on April 26, 2022, Defendants’ counsel emailed 24 Plaintiff’s counsel about the language Plaintiff included as an attachment to Plaintiff’s case 25 management statement. (Evans Decl. ¶ 18, Ex. G.) Specifically, Defendants’ counsel stated 26 “Given the quickly approaching deadlines for the May 20, 2022 hearing, we will plan on calling 27 you tomorrow, April 27, 2022 at 11:00 a.m. to address the deficiencies plaintiff believes are 28 present in the supplemental responses served on April 20, 2022” (Ibid.) 4 DEFS’ OPPO TO PLTF’S EX PARTE APP RE CONTINUING HEARING ON DEFS’ MTQ SUMMONS FP 43902516.2 1 On Wednesday, April 27, 2022, Defendants’ counsel called Plaintiff’s counsel and the 2 parties met and conferred over Defendants’ supplemental discovery responses provided on April 3 20, 2022 for over an hour. (Evans Decl. ¶ 19.) While the parties were not able to conclusively 4 resolve all issues, the parties made progress towards the resolution of the issues regarding the 5 limiting language of the responses as well as Defendants’ document production and privilege 6 log. (Ibid.) 7 Specifically, with regard to the limiting language in the responses, Defendants’ counsel 8 explained the need for language incorporating the court-imposed limitations to the discovery 9 requests to avoid any misperceptions or misunderstandings regarding Defendant’s responses. 10 (Ibid.) Plaintiff’s counsel insisted that Defendants provide answers to the discovery requests with 11 no limiting language from the Court order prior to each substantive in the objections portion of 12 each response. (Ibid.) The parties generally discussed including some mutually agreeable 13 limiting language so that Defendants could remove its limitations language from the order that 14 was incorporated prior to the substantive responses. (Ibid.) Defendants’ counsel asked Plaintiff’s 15 counsel to propose limiting language that Plaintiff was comfortable with. (Ibid.) Plaintiff’s 16 counsel agreed to do so but indicated that he did not believe there was sufficient time to do so 17 and also prepare its supplemental opposition to the motion to quash. (Ibid.) Accordingly, the 18 parties agreed to continue Plaintiff’s deadline to submit its supplemental opposition to the motion 19 to quash from April 29 to May 4 and continue the Nonresident Defendants’ reply deadline from 20 May 9 to May 11 to allow the parties time to meet and confer further. (Ibid.) The parties filed a 21 joint stipulation to this effect on April 29, 2022. 22 To address Plaintiff’s concerns, Defendants’ counsel offered to propose its own draft 23 limiting language to the discovery requests, taking into account the Court’s order and the 24 discussions of counsel during the meet and confer. Defendants’ counsel provided a “DRAFT” 25 supplemental response to UCOMMG’s Third Supplemental Responses to Plaintiff’s Special 26 Interrogatories that same evening on April 27, 2022, with modifications to the discovery requests 27 included, and all limiting language quoted from the order removed. (Evans Decl. ¶ 21, Ex. I.) 28 The substantive responses to the discovery requests remained the same. (Ibid.) Defendants’ 5 DEFS’ OPPO TO PLTF’S EX PARTE APP RE CONTINUING HEARING ON DEFS’ MTQ SUMMONS FP 43902516.2 1 counsel explained that if the revisions were acceptable to Plaintiff, Defendants would quickly 2 supplement the remaining discovery responses in the same manner. (Ibid.) 3 On Thursday, April 28, 2022, Plaintiff’s counsel responded and stated that the proposed 4 “DRAFT” responses were unacceptable and that he would propose alternative language for the 5 responses. (Evans Decl. ¶ 22, Ex. J.) To date, Plaintiff’s counsel has not proposed any such 6 language. On Friday, April 29, 2022, since Plaintiff’s counsel had not yet provided any proposed 7 alternative language, Defendants’ counsel sent another email with a second attempt at proposed 8 modified prefatory language. (Evans Decl. ¶ 23, Ex. K.) Later that day, Plaintiff’s counsel sent 9 an email again rejecting Defendants’ proposed language and proposing partial language 10 (language that did not actually address any of the court limitations). (Evans Decl. ¶ 24, Ex. L.) 11 As of the date of the filing of this opposition, Monday, May 2, 2022, Defendants’ counsel 12 are in the process of preparing a third attempted revision of its supplemental response to 13 UCOMMG’s Third Supplemental Responses to Plaintiff’s Special Interrogatories in yet another 14 attempt to resolve the issue. (Evans Decl. ¶ 27.) Defendants’ counsel plan to send the “DRAFT” 15 responses to Plaintiff’s counsel no later than Tuesday, May 3, 2022 (with modifications to the 16 prefatory language, responses – which Plaintiff has not taken issue with - to remain the same), 17 along with a document production removing some of the redactions. (Ibid.) By brief explanation, 18 redactions were made based on confidentiality, trade secret and privacy concerns – i.e. 19 confidential (not public) contracts of third parties containing personally identifying information 20 and a contract with an out of state customer for work outside of California. (Ibid.) The parties 21 have been meeting and conferring over these redactions. (Ibid.) Defendants are also working on 22 adding some additional detail to their previously provided privilege log. (Ibid.) Accordingly, each 23 of the issues identified in Plaintiff’s Application as to the discovery requests addressed in the 24 Court’s April 8, 2022 order have been addressed. 25 D. Plaintiff Has Not Identified Any Issues with Defendants’ Substantive 26 Discovery Responses That Were Not in Plaintiff’s Motions to Compel 27 UCOMMG and Unified Communications served supplemental discovery responses to 28 Special Interrogatory Nos. 13-14, 17-18, 22-24 on March 18, 2022. (Evans Decl. ¶ 13, Ex. B.) 6 DEFS’ OPPO TO PLTF’S EX PARTE APP RE CONTINUING HEARING ON DEFS’ MTQ SUMMONS FP 43902516.2 1 The discovery requests addressed in the March 18, 2022 supplemental responses were not the 2 subject of Plaintiff’s prior motions to compel and these discovery requests have never been before 3 the Court. On April 20, 2022, for the first time, Plaintiff sent meet and confer letters regarding 4 the March 18 supplemental responses. (Evans Decl. ¶ 16, Ex. B.) UCOMMG and Unified 5 Communications Group responded to Plaintiff’s letters on April 26, 2022 and the very next day, 6 on April 27, 2022, UCOMMG and Unified Communications Group served further supplemental 7 discovery responses addressing each of the issues Plaintiff raised in its April 20, 2022 meet and 8 confer letters. (Evans Decl. ¶¶ 18, 20, Exs. G, H.) To date, Plaintiff has not identified any issues 9 with the substantive responses provided on April 27, 2022, and instead simply claims, with no 10 legal authority, that UCOMMG and Unified Communications must withdraw each of their 11 objections contained in their April 27, 2022 supplemental responses, even though the objections 12 to these requests have never been before the Court. Plaintiff’s argument appears to be that 13 because the Court overruled some (but not all) similar objections related to other discovery 14 requests, the Court has already implicitly ruled on the related requests that have not been before 15 the Court. 16 E. Plaintiff’s Counsel Refused Defendants’ Counsel’s Offer to Stipulate to 17 Continue the Hearing on the Nonresident Defendants’ Motion to Quash 18 The morning of May 1, 2022, after receiving Plaintiff’s counsel’s notice regarding the 19 instant ex parte application at midnight the night before (which did not state how long Plaintiff 20 sought to continue the hearing on the motion to quash), Defendants’ counsel emailed Plaintiff’s 21 counsel and offered to stipulate to continue the hearing on the Nonresident Defendants’ Motion 22 to Quash by two weeks to allow the parties time to finish meeting and conferring on UCOMMG 23 and Unified Communications Group’s supplemental discovery responses. (Evans Decl. ¶ 25, Ex. 24 M.) Plaintiff’s counsel rejected Defendants’ counsel’s proposal and, for the first time, indicated 25 that it would be seeking a four-month long continuance to September 2022. (Evans Decl. ¶ 26, 26 Ex. N.) Plaintiff’s counsel stated that the ex parte application would only be avoided if 27 Defendants’ counsel agreed to continue the hearing to September 2022—exactly one year 28 from the date of the Nonresident Defendants’ filing of the motion to quash. (Ibid.) 7 DEFS’ OPPO TO PLTF’S EX PARTE APP RE CONTINUING HEARING ON DEFS’ MTQ SUMMONS FP 43902516.2 1 III. PLAINTIFF’S EX PARTE MUST BE DENIED BECAUSE THERE IS NO 2 EXIGENT CIRCUMSTANCE THAT REQUIRES EMERGENCY RELIEF 3 Ex parte applications for relief are permitted only in limited circumstances. (6 Witkin, 4 Cal. Procedure (5th ed. 2008) Proceedings Without Trial, § 58, p. 483.) One such circumstance 5 is “[w]here there is pressing necessity for immediate relief . . . .” (Id. at p. 484.) A trial court 6 should deny an ex parte application absent the requisite showing. (See Ferraro v. Camarlinghi 7 (2008) 161 Cal.App.4th 509, 523, 551, fn. 30.) 8 To obtain ex parte relief, "[a]n applicant must make an affirmative factual showing in a 9 declaration containing competent testimony based on personal knowledge of irreparable harm, 10 immediate danger, or any other statutory basis for granting relief ex parte.” (Cal. R. Ct. 11 3.1202(c).) In other words, the applicant must show that there is some emergency necessitating 12 ex parte relief. (Turner v. Superior Court (1977) 72 Cal.App.3d 804, 809 n.2 (1977) ["an order 13 upon ex parte application should only be issued in cases of emergency which make it 14 imperatively necessary to act at once without notice."].) Plaintiff has not carried its burden to 15 make an affirmative factual showing of irreparable harm or immediate danger. 16 A. The Court Should, At A Minimum, Proceed With Hearing The Motion to 17 Quash on May 20 for the Individual Nonresident Defendants Because There 18 Are No Outstanding Jurisdictional Discovery Issues for These Defendants 19 Notably, there are no outstanding discovery requests or discovery motions related to the 20 four individual Nonresident Defendants –Kenneth Newbatt, Bianca Newbatt, Mitchell Lipkin, 21 and Michael Bellas. And the Court should, at a minimum, hear the motion to quash as to those 22 Nonresident Defendants on May 20, 2022, as scheduled. Based on its ex parte application, 23 Plaintiff only takes issue with two sets of UCOMMG’s and Unified Communication’s 24 supplemental discovery responses. 25 /// 26 /// 27 /// 28 /// 8 DEFS’ OPPO TO PLTF’S EX PARTE APP RE CONTINUING HEARING ON DEFS’ MTQ SUMMONS FP 43902516.2 1 B. As To UCOMMG and Unified Communications, The Court Should Either 2 Deny The Ex Parte Request, or Move the Motion to Quash Hearing (and 3 Other Motions Pending On that Same Date) by Two Weeks, As Previously 4 Offered By Defendants (And Which Plaintiff Rejected) 5 As to Plaintiff’s claimed issues with Defendants UCOMMG and Unified 6 Communications’ supplemental discovery responses that were served on April 20, 2022 in 7 accordance with the Court’s April 8, 2022 Order, Plaintiff has not identified any issues in its ex 8 parte application with the actual substance of those discovery responses. Instead, Plaintiff takes 9 issue with limiting language quoted from the Court order that appears prior to the substance of 10 Defendants responses. Plaintiff has unilaterally demanded that Defendants remove all limiting 11 language imposed by the Court. 12 Defense counsel has made several proposals removing the language at issue (once 13 telephonically, and twice in writing). As discussed above, Defense counsel is in the process of 14 preparing its third written proposal aimed specifically at addressing Plaintiff’s concerns over 15 Defendant’s quoting of the Court order in its responses. This third written proposal will be served 16 by tomorrow, May 3, 2022. 17 As to UCOMMG and Unified Communications’ supplemental responses to Special 18 Interrogatories Nos. 13-14, 17-18, 22-24 (i.e. to the requests not at issue in Plaintiff’s motions to 19 compel) Plaintiff has similarly not identified any issues with the substantive supplemental 20 discovery responses provided on April 27, 2022, and instead simply claims that UCOMMG and 21 Unified Communications must withdraw all objections contained in the April 27, 2022 22 supplemental responses, even though the objections to these requests have never been before the 23 Court, because the Court overruled some (but not all) similar objections related to other discovery 24 requests. Again, UCOMMG and Unified Communications provided substantive responses to 25 each of the discovery requests and Plaintiff has not identified any issues with the actual responses 26 provided. Accordingly, there is no reason to delay the hearing on the motion to quash based on 27 these responses. 28 /// 9 DEFS’ OPPO TO PLTF’S EX PARTE APP RE CONTINUING HEARING ON DEFS’ MTQ SUMMONS FP 43902516.2 1 The parties met and conferred on these issues for the first time less than a week ago on 2 Wednesday, April 27, 2022, when defense counsel called Plaintiff’s counsel to discuss. The 3 parties continued to meet and confer via email on Thursday, April 28 and Friday, April 29, during 4 which defense counsel again offered several times to get on another call to discuss. Plaintiff’s 5 counsel served its notice of the instant ex parte at midnight on Sunday, May 1, after just three 6 days (and one phone call, despite Defendants’ counsel offer for multiple calls) of meet and confer 7 efforts. During the three days, the parties made progress on resolution and any remaining issues 8 could easily be resolved in the two-week continuance proposed by Defendants’ counsel. 9 Accordingly, Plaintiff’s requested relief in its ex parte application for a further four-month 10 continuance is not reasonable and Plaintiff has not made an affirmative factual showing that 11 irreparable harm will occur unless its ex parte application is granted. 12 IV. CONCLUSION 13 Based on the foregoing, Defendants respectfully request that the Court deny Plaintiff’s ex 14 parte application in its entirety. As Defendants are aware that Plaintiff’s supplemental Opposition 15 to the Nonresident Defendants’ motion to quash is currently due the day after the hearing on this 16 ex parte application, Defendants’ prior offer to continue the hearing on the motion to quash by 17 two weeks still stands. 18 In the event the Court is willing to continue the hearing on the Nonresident Defendants’ 19 motion to quash by more than two weeks, Defendants request that the Court continue the hearing 20 on the motion to quash service of summons as to Defendants UCOMMG, LLC and Unified 21 Communications Group, Inc. only and maintain the currently set briefing and hearing schedule 22 for the other four Nonresident Defendants – Kenneth Newbatt, Bianca Newbatt, Mitchell Lipkin, 23 and Michael Bellas. 24 DATE: May 2, 2022 FISHER & PHILLIPS LLP 25 By: 26 Shayna Balch Santiago Kathryn M. Evans 27 Attorneys for Defendants, UCOMMG, LLC; Unified Communications 28 Group, Inc.; et al. 10 DEFS’ OPPO TO PLTF’S EX PARTE APP RE CONTINUING HEARING ON DEFS’ MTQ SUMMONS FP 43902516.2 1 PROOF OF SERVICE (CCP §§1013(a) and 2015.5) 2 I, the undersigned, am at least 18 years old and not a party to this action. I am employed 3 in the County of San Diego with the law offices of Fisher & Phillips LLP and its business address is 4747 Executive Drive, Suite 1000, San Diego, California 92121. 4 On May 2, 2022, I served the following document(s) DEFENDANTS’ OPPOSITION 5 TO PLAINTIFF’S EX PARTE APPLICATION FOR ORDER CONTINUING HEARING ON DEFENDANTS’ MOTION TO QUASH SERVICE OF SUMMONS on the person(s) 6 listed below by placing the original a true copy thereof enclosed in sealed envelope(s) addressed as follows: 7 8 Paul P. Young Tel: (626) 744-1838 Joseph Chora Fax: (626) 744-3167 9 Cameron H. Totten E-Mail: paul@cym.law; joseph@cym.law; Armen Manasserian cameron@cym.law; armen@cym.law; 10 Scott O’Halloran scott@cym.law CHORA YOUNG LLP 11 650 Sierra Madre Villa Ave, Suite 304 Attorneys for Plaintiff Butler America, LLC Pasadena, California 91107 12 [by MAIL] - I enclosed the document(s) in a sealed envelope or package addressed to 13 the person(s) whose address(es) are listed above and placed the envelope for collection and mailing, following our ordinary business practices. I am readily familiar with this 14 business’s practice for collecting and processing correspondence for mailing. On the same day that correspondence is placed for collection and mailing, it is deposited in the 15 ordinary course of business with the United States Postal Service in San Diego California, in a sealed envelope with postage fully prepaid. 16 [by OVERNIGHT DELIVERY] - I enclosed the document(s) in an envelope or package provided by an overnight delivery carrier and addressed to the person(s) at the address(es) 17 listed above. I placed the envelope or package for collection and overnight delivery at an office or a regularly utilized drop box of the overnight carrier. 18 [by ELECTRONIC SERVICE] - Based on a court order or an agreement of the parties to accept service by electronic transmission, I electronically served the document(s) to 19 the person(s) at the electronic service address(es) listed above. 20 I declare under penalty of perjury, under the laws of the State of California, that the foregoing is true and correct. 21 Executed May 2, 2022 at San Diego, California. 22 Amanda Funkhouser By: 23 Print Name Signature 24 25 26 27 28 1 PROOF OF SERVICE FP 43902516.2