Motion,Ex Parte: KIM KONAMI VS. ARYAN DAVANI ET AL

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                                John A. Kithas (State Bar No. 64284) ELECTRONICALLY

Chris Land (State Bar No. 238261)

LAW OFFICES OF JOHN A. KITHAS 7 F aor teas ;
One Embarcadero Center, Suite 1020 Canine of Gist Mmocisent
San Francisco, CA 94111 11/26/2018
Telephone: 415-788-8100 11/26/2018
Facsimile: 415-788-8001 BY:BOWMAN LIU

Deputy Clerk

Attorneys for Defendant Annika Rodriguez

SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF SAN FRANCISCO

UNLIMITED JURISDICTION
KIM KONAMI Case No. CGC-15-548211
Plaintiff,
OPPOSITION TO YEE DEFENDANTS’
vs. MOTION TO CONTINUE TRIAL AND
ASSOCIATED DEADLINES
ARYAN DAVANI, GEORGE KONTRIDZE,
DANIEL C. METZ, TAMARA VAN WYK,
KEVIN F. DUNNELL, ANNIKA NILSEN, Hearing Date: November 29, 2018
and DOES 1 through 25, Time: 9:30 a.m.
Dept: 206

Defendants.

Complaint Filed: September 30, 2015
Trial Date: December 3, 2018

L INTRODUCTION
Defendants Jayne Y. Yee, David Shawn Yee, and Carol L. Yee (“Yee Defendants”) filed
this Motion to Continue Trial and Associated Deadlines (“Motion”) on November 15, 2018, having
been unsuccessful on the same day in thier Ex Parte Application of Defendants for an Order
Continuing Trial, or Alternatively, OST to Hear Motion to Continue Trial (“Application”). In both
the Motion and the Application, the Yee Defendants desired to continue the three-year-old case and
proposed a new trial date of June 3, 2019, which extends the current lawsuit to almost four years

since the Complaint was initially filed. The Motion was presented only three weeks before the trial

 

 

 

OPPOSITION TO EX PARTE APPLICATION OF YEE DEFENDANTS FOR AN ORDER CONTINUING TRIAL
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date without explanation as to these Defendants’ delay in their substitution of counsel. Plaintiff Kim
Konami (“Plaintiff”) named Defendant Annika Rodriguez (incorrectly named as “Annika Nilsen”)
(herein referred to as “Defendant” or “Mrs. Rodriguez”) as a trespasser to the premises at 1048
Hyde Street, San Francisco, where Defendant has never set foot on. Nor did Defendant have any
involvement with Plaintiff or any of the other defendants outside of this lawsuit.

Most significantly, on November 21, 2018, Plaintiff provided a Notice of Conditional
Settlement of Entire Case, even though Plaintiff has neither settled with Mrs. Rodriguez nor, as
suggested by Mrs. Rodriguez, dismissed her from this case. Defendant believes Plaintiff settled with
the Yee Defendants, but Defendant’s attempts to confirm if the Yee Defendants’ Motion is to be
withdrawn has not been replied to. Therefore, Mrs. Rodriguez must make clear her opposition to

any effort to continue the trial date of this very old case.

IL ARGUMENT
A. Yee Defendants Have Failed to Meet Applicable Statutory Standards
Yee Defendants’ Motion is premised upon the recent substitution of counsel and the alleged
lack of opportunity to obtain essential testimony, documents or other material. California Rules of
Court, Rule 3.1332(c)(4) & (6). The Rules of Court further establishes other factors that the Court

must consider in ruling on the Motion:

“(3) The length of the continuance requested;

(4) The availability of alternative means to address the problem that gave rise to the motion
or application for a continuance;

(5) The prejudice that parties or witnesses will suffer as a result of the continuance;

(10) Whether the interests of justice are best served by a continuance, by the trial of the
matter, or by imposing conditions on the continuance; and

(11) Any other fact or circumstance relevant to the fair determination of the motion or
application.”

Rule 3.1332(d).
A failure to follow these procedures allows the Court to deny the motion on procedural
grounds and will, in all probability, preclude any attack on the denial of a continuance on appeal.

Muller v. Tanner (1969) 2 Cal. App. 3d 445, 458. “Although continuances of trials are disfavored,

 

 

 

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each request for a continuance must be considered on its own merits. The court may grant a
continuance only upon an affirmative showing of good cause requiring the continuance.” Rules of
Court, Rule 3.1332(c). Unnecessary continuances are wasteful, nonproductive, time-consuming, and
a fertile ground for public criticism of the courts”. County of San Bernardino v. Doria Mining &

Engineering Corp. (1977) 72 Cal. App. 3d 776, 781.

B. Yee Defendants have Failed to Establish Good Cause for Continuing Trial

Rules of Court provides that one of the grounds for continuing trial date is “the substitution
of trial counsel, but only where there is an affirmative showing that the substitution is required in
the interests of justice.” Rules of Court, Rule 3.1332(b)(4) (emphasis added). The Yee Defendants
claim that the recent substitution of counsel was based on the availability of insurance and insurance
defense counsel that was not discovered “until recently.” Application, 6:23-26. However, although
Defendant is sympathetic as to the conditions faced by the Yee Defendants’ substituted counsel,
who was retained on a short notice, Yee Defendants fail to explain why they have not discovered
the availability of insurance for the past three years, but until very recently before the trial date,
which is the cause of the insufficient “opportunity to review the file, interview witnesses, engage in

discovery, and otherwise prepare for trial ....” Motion, 7:2-8.

C. Granting Continuance will Result in Great Prejudice to Defendant

In ruling on.a motion for continuance, the Court must consider whether other parties will
suffer as a result of the continuance, whether the interests of justice are best served by a continuance
or by imposing conditions on the continuance, and any other fact or circumstance relevant to the
motion. Rule of Court 3.1332(d)(5), (10) & (11).

Mrs. Rodriguez has repeatedly provided proof to Plaintiff that she was wrongfully named as
a defendant in the present case because she has never set foot on the premises at 1048 Hyde Street
at issue. Declaration of John A. Kithas in Support of Opposition to Yee Defendants’ Motion to

Continue Trial and Associated Deadlines (“Decl. JAK”), § 3. Almost three years of her prolonged

 

 

 

OPPOSITION TO EX PARTE APPLICATION OF YEE DEFENDANTS FOR AN ORDER CONTINUING TRIAL
Page - 3 -and frustrating journey of proving something that Mrs. Rodriguez has never done has resulted in
great loss and suffering to her, both financially and emotionally. Id.

Mrs. Rodriguez is a citizen of Norway where she is currently residing in. Decl. JAK, § 4.
Currently unemployed, she has been searching for employment in Norway and hopefully will get a
job offer in January of 2019. Jd. Relying on the December 3, 2018 trial date, Mrs. Rodriguez has
purchased the non-refundable round-trip flight tickets for both her and her one-year-old daughter
for $690. Decl. JAK, § 5. I am informed and believe that, if the trial date is continued to June 3,
2019, Mrs. Rodriguez will have to take at least one week off from her new job and book the flight
tickets for at least $900 on top of the loss of her $690 in flight tickets for the December 3, 2018
trial. Decl. JAK, 4 6. As Mrs. Rodriguez is only alleged to be a trespasser on the premises at issue at
1048 Hyde Street, her participation on the trial expected to be very minimal. Decl. JAK, § 7.
Besides the additional costs from the delay in trial date, the continuance will also reopen discovery
process which will potentially cost Mrs. Rodriguez out-of-pocket expenses to engage in the
depositions in which her role will be limited. /d. Therefore, granting Yee Defendants’ Motion will

cause great prejudice to Mrs. Rodriguez.

E. The Yee Defendants Have Settled And Need No New Trial Date

On November 21, 2018, Plaintiffs counsel/husband a e-mailed a Notice of Settlement of
Entire Case, despite the fact that Mrs. Rodriguez’s counsel attended the November 20, 2018
Mandatory Settlement Conference in this case, at which time the case had not been settled as to
Mrs. Rodriguez. Decl. JAK, § 8 and Exhibit A. On November 21, 2018, a few minutes after one of
Mrs. Rodriguez’s counsel received the Notice of Settlement of Entire Case, he wrote two e-mails to
Plaintiff's husband/counsel to note that 1) the form improperly stated that no trial date had been set,
despite the fact that this case had a December 3, 2018 trial date, 2) the notice indicated that the
“entire” case had been settled despite their being no settlement with Defendant and 3) requesting

that the Yee Defendants’ new counsel disclose if he was withdrawing his motion to continue trial in

 

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light of the apparent settlement. Neither attorney has responded to my e-mail as of this writing.
Decl. JAK § 9 and Exhibit B.

Therefore, it appears that the Yee Defendants no longer need to continue trial in this case.

D. Even if Good Cause is Found, Yee Defendants’ Motion Should Only be Granted

with Conditions

In determining the motion for continuance, the Court must take into account the length of
the continuance requested, the availability of alternative means to address the problem that gave rise
to the motion or application for a continuance, and whether the interests of justice are best served by
a continuance, by the trial of the matter, or by imposing conditions on the continuance. Rule
3.1332(d)(3), (4) & (10).

Yee Defendants have sought a continuance of a three-year-old lawsuit for another six
months, which is unreasonably long even in light of the need for Yee Defendants’ substituted
counsel to review the case file. In addition, as stated above, Mrs. Rodriguez will hopefully have
found new employment by January of 2019. Decl. JAK, 7 4. Therefore, even if the Court found
good cause for the unexplained substitution of counsel, it is within the Court’s discretion to order a
new court date before January of 2019 as an alternative means to address Yee Defendants’ problem.
See Rule of Court 3.1332(d)(4).

Yee Defendants also requests “the Court also continue all dates presently tied to the trial
date, including but not limited to discovery cut-off, mandatory settlement conferences, pretrial
conferences, and reset them to dates convenient to the Court and commensurate with the new trial
date.” Motion, 8:2-6. If such request were granted, Defendant requests the Court to exercise its
discretion to grant Defendant to file Motion for Summary Judgment in pursuant to California Code
of Civil Procedure section 437c if a new court date was to be set on June 3, 2019, see Green v.
Bristol Myers Co. (1988) 206 Cal.App.3d 604, 609-610, or a shortened Motion for Summary

Judgment in pursuant to section if a new court date was to be set before January of 2019.

 

 

 

OPPOSITION TO EX PARTE APPLICATION OF YEE DEFENDANTS FOR AN ORDER CONTINUING TRIAL
Page - 5 -Defendant requests that in any event where Yee Defendants’ Motion is granted either in
whole or with condition, the Court shall order Yee Defendants’ insurance company to reimburse her

flight tickets she has already paid or is to be paid for the new trial date.

I. CONCLUSION
For the foregoing reasons, Yee Defendants’ Motion to Continue Trial and Associated

Deadlines should be dismissed or, alternatively, granted with conditions.

Dated: November 26, 2018 LAW OFFICES OF JOHN A. KITHAS
Attorneys for Defendant Annika Rodriguez

z. f

By Jola/A. Kithas

 

 

 

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