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Walter Parsley, SBN 116534 ELECTRONICALLY
Sean E. Makarin, SBN 298772 FILED
PARSLEY & MAKARIN Superior Court of Catifornia,
140 Geary Street, 4" Floor County of San Francisco
San Francisco, CA 94108 11/16/2018
Telephone: (415) 777-1800 beat haeelt phoebe
Email: walter@parsleylaw.com : Deputy Clerk
sean@parsleylaw.com
Attorney for Petitioner,
GUILLAUME GASSUAN
and TODD M. MORENO
SUPERIOR COURT OF CALIFORNIA
CITY AND COUNTY OF SAN FRANCISCO
UNLIMITED CIVIL JURISDICTION
GUILLAUME GASSUAN, TODD M.
MORENO,
Case No.: CPF-18-516348
MEMORANDUM OF POINTS AND
AUTHORITIES IN OPPOSITION TO
RESPONDENTS’ EX PARTE APPLICATION TO
CONTINUE THE DECEMBER 11, 2018 HEARING
FOR ORDER TO SHOW CAUSE WHY AN
ALTERNATIVE WRIT OF MANDATE SHOULD
NOT BE ISSUED.
Petitioners,
vs.
BENEVOLENT AND PROTECTIVE
ORDER OF ELKS OF THE UNITED
STATES OF AMERICA, MICHAEL T.
LUHR, and ROBERT OSTINI, and DOES
1 through 10, inclusive,
Date: November 16, 2018
Time: 11:00 AM
Dept: 302
Respondents. Judge: Hon. Harold E. Kahn
Case Filed: September 19, 2018
we SS SS SS SS eS SS
L.INTRODUCTION
On September 20, 2018, this Court issued an Order to Show Cause Why an Alternative Writ of
Mandate Should Not Be Issued, which directed the BPOE to vacate Elks Executive Orders 17-123 and
17-163 or show cause why it has not done so. A hearing on the Order to Show Cause was set for
December 11, 2018, by stipulation between counsel for Petitioners and Respondents.
MEMORANDUM OF POINTS AND AUTHOIRIES IN OPPOSITION TO RESPONDENTS’ EX PARTE APPLICATION TO.
CONTINUE THE DECEMBER 11, 2018 HEARING FOR ORDER TO SHOW CAUSE WHY AN ALTERNATIVE WRIT OF
MANDATE SHOULD NOT BE ISSUED.10
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The Respondents’ Verified Answer to the Petition, which was filed on October 9, narrows the
issues in dispute considerably, because Respondents admit many of the critical facts necessary for the
Court to rule on the Petition.
Among other things, the Respondents’ Verified Answer admits: (1) that Petitioners Gassuan and
Moreno were removed from office and suspended summarily, by Orders of the Grand Exalted Ruler
(“GER,”) without prior notice or hearing (Answer § 23, line 18-20, {4 19, 20; ) (2) that the Orders were
based upon information and belief provided to the GER (Answer, {] 21;) and (3) that the only due
process available to Petitioners is the filing of an appeal, for which a $1000 filing fee, each, was
required. (Answer, § 23.) In fact, Respondents not only admit that Petitioners are not entitled to a
hearing prior to removal and suspension, but they contend that the appeals procedure constitutes
adequate due process to Petitioners. (Answer, § 30, lines 7-8.)
For these reasons, the hearing on the Order to Show Cause should be straightforward. The
Executive Orders from the Grand Exalted Ruler speak for themselves, and Respondents have admitted
that punishment was imposed without prior notice and without giving the Petitioners a chance to defend
themselves against the alleged violations. The Petitioners contend that the Elks’ admitted procedures
violated California law, and Respondents claim that they did not violate California law, and that due
process was afforded to the Petitioners. Thus, although there are some tangential facts in dispute, for the
most part, all that remains for this Court to decide is whether the Respondents violated California law.
In spite of having narrowed the issues with their Answer, the Respondents now claim a need for
a full-blown evidentiary hearing with six witnesses plus cross-examination of the Petitioners, for a total
of eight witnesses for the Respondents. Additionally, the Respondents have sought to bring in another
law firm as new lead counsel, with three San Francisco attorneys, plus one Texas attorney who is
apparently needed because he is “intimately familiar with the structure and laws of B.P.O.E. and has
represented the organization in numerous cases involving membership rights...throughout the country.”
(Respondents’ MPA in Supp. of Ex Parte App., p. 3:4-5.)
MEMORANDUM OF POINTS AND AUTHOIRIES IN OPPOSITION TO RESPONDENTS’ EX PARTE APPLICATION TO.
CONTINUE THE DECEMBER 11, 2018 HEARING FOR ORDER TO SHOW CAUSE WHY AN ALTERNATIVE WRIT OF
MANDATE SHOULD NOT BE ISSUED.10
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Inexplicably, the Respondents waited nearly two months before deciding that they needed to
have all of these additional attorneys, and then they chose attorneys who they knew had a timing
conflict.
I. There is no Good Cause to Continue the Stipulated Hearing Date of December 11, 2018
At the time the stipulation was made between the parties, the Respondents were represented by
Stephen A. Scott. Subsequently, the Respondents have retained a second firm and now the four
respondents are represented by two firms, and six attorneys between those two firms (five California
attorneys and one Texas attorney), The Respondents added their second firm more than a month after
the Petition was filed and the Order to Show Cause was issued, fully aware of the December 11 hearing
date. It is clear then, that the Respondents voluntarily retained a firm that was unavailable for the
hearing date and now seek to delay the proceedings based on that alone.
Notably, this request comes less than a month before the stipulated hearing date. Now, the
Respondents seek to continue the hearing date that they agreed to because their two of their five
California counsel are unavailable, and their Texas counsel is also unavailable. In sum, Respondents
seek to continue this stipulated hearing by cause of their own delay and because three of their six
attorneys are unavailable.
A. Good Cause Does Not Exist on the Ground that the Respondents Will be Deprived of
Counsel.
None of the cases cited by the Respondents apply to this situation. This situation at hand is
whether a law and motion hearing should be continued on the ground that three of the six attorneys
representing the Respondents are unavailable for a stipulated law and motion hearing date, though the
other three are apparently available as they represented when they chose the hearing date.
The Respondents’ are correct that the right to counsel is fundamental and they cite Golden State
Glass Corp. vy. Superior Court (1939) 13 Cal. 2d. 384, 396, Echlin v. Superior Court of San Mateo
Country (1939) 13 Cal. 2d 368, 372, and Mendoza v. Small Claims Court (1958) 49 Cal. 2d 668, 673, to
support this contention.
MEMORANDUM OF POINTS AND AUTHOIRIES IN OPPOSITION TO RESPONDENTS’ EX PARTE APPLICATION TO.
CONTINUE THE DECEMBER 11, 2018 HEARING FOR ORDER TO SHOW CAUSE WHY AN ALTERNATIVE WRIT OF
MANDATE SHOULD NOT BE ISSUED.10
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The reliance on Golden Gate Class Corp. is misplaced because that case related to a Court flat
out denying the right for a corporate board member to hire his own attorney in a corporation
receivership dispute. (/d. at 387-388.) In that instance, the court held that conflicting board members in
corporate in receivership dispute could not be denied their own counsel by the Court. (/d. at 396.)
Echlin related to a fee dispute between a client who replaced her attorney, during a pending
litigation. (Echlin v. Superior Court of San Mateo Country (1939) 13 Cal. 2d 368, 370-371.) In that
matter the one attorney was discharged, and the case was allowed to proceed with a new attorney — with
the fee dispute to be resolved later. And, Mendoza v. Small Claims Court (1958) 49 Cal. 2d 668, related
to the right to counsel in small claims court proceedings, and more specifically the right to stay in an
appeal of a small claims court proceeding that related to an unlawful detainer case for non-payment of
rent,
In this matter, the Respondents are more than adequately represented by multiple attorneys from
two reputable law firms. This is not a situation in which the court is refusing to allow any of the
attorneys to appear — the Petitioners are not even disputing the Pro Hoc Vice application of Mr. Ewbank
— but rather this is a situation in which the Respondents agreed to a hearing date, then hired counsel who
were unavailable for the hearing date, and seek a continuance based on their own knowing choice.
B. There is No Good Cause to Continue the Hearing on the Grounds that the Three
Unavailable Attorneys are Necessary for an Evidentiary Hearing at Which Oral
Testimony will be Presented.
The Respondents’ request for continuance is also predicated on the false assumption that the
December hearing is an evidentiary hearing which will require the testimony of six witnesses and the
cross examination of Gassuan and Moreno - apparently necessitating two San Francisco attorneys and
an Elk specialist from Texas.
To support this claim, the Respondents misleadingly cite American Federation of State, County,
& Municipal Employees v. Metropolitan Water Dist. (2005) 126 Cal. App. 4°" 247 for the following
proposition: “Though the Court is to hold an evidentiary hearing, it has broad discretion in deciding
MEMORANDUM OF POINTS AND AUTHOIRIES IN OPPOSITION TO RESPONDENTS’ EX PARTE APPLICATION TO.
CONTINUE THE DECEMBER 11, 2018 HEARING FOR ORDER TO SHOW CAUSE WHY AN ALTERNATIVE WRIT OF
MANDATE SHOULD NOT BE ISSUED.10
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what and whom to allow during the hearing, including witnesses.” (Respondents’ Memorandum, Pg 5,
Line 17-18).
This citation does not withstand sustained scrutiny. The case actually states: "In a law and
motion, writ of mandate hearing, the trial court has broad discretion to decide a case on the basis of
declarations and other documents rather than live, oral testimony. [Citations.] (California School
Employees Assn. v. Del Norte County Unified Sch. Dist.(1992) 2 Cal.App.4th 1396, 1405 [ 4 Cal.Rptr.2d
35], citing Cal. Rules of Court, rule 323.)” (American Federation of State, County, & Municipal
Employees v. Metropolitan Water Dist. (2005) 126 Cal. App. 4" 247, 263.) The California Rules of
Court also make it clear that a writ of mandate is a law and motion matter. (CRC 3.1103(a)(2).
Accordingly, a writ of mandate is to be decided on the papers. (CRC 3.1306(a).) And thus, the court has
broad leeway to make a ruling based on the declaration and other documents rather than live oral
testimony. (American Federation of State, County, & Municipal Employees v. Metropolitan Water Dist.
(2005) 126 Cal. App. 4°" 247, 263.).
The Respondents also mistakenly rely on Capo for Better Representation v. Kelley (2008) 158
Cal. App. 4"* 1455 for the proposition that the December hearing is to be an evidentiary hearing with
oral testimony. Capo resolved an issue about how the Court hearing the writ of mandate is to resolve
conflicting written evidence from the lower court or administrative body that the writ is sought against.
(d. at 1462.)
Still yet, to submit oral testimony at a law and motion hearing the party seeking to present the
oral testimony must comply with CRC 3.1306(b). This rule requires the party seeking to submit oral
testimony to submit a written statement, no later than three court days before the hearing, stating the
nature and extent of the evidence proposed to be introduced and a reasonable time estimate for the
hearing. The Respondents’ have not made a request pursuant to 3.1306(b) and apparently, simply
presume that they are entitled to present oral testimony.
In this matter, as set forth above, the issues are actually quite narrow. There is no dispute as to
what the Respondents did to Petitioners, and how they did it: it is all in writing. Respondents claim that
MEMORANDUM OF POINTS AND AUTHOIRIES IN OPPOSITION TO RESPONDENTS’ EX PARTE APPLICATION TO.
CONTINUE THE DECEMBER 11, 2018 HEARING FOR ORDER TO SHOW CAUSE WHY AN ALTERNATIVE WRIT OF
MANDATE SHOULD NOT BE ISSUED.10
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their internal appeals procedures are adequate to provide members of BPOE due process in accordance
with California law, and Petitioners contend that the BPOE procedures are inadequate as a matter of law.
Respondents are doing nothing more than attempting to turn a narrow hearing into a circus, and divert
the Court's attention from the issues presented by the writ petition.
Since the writ process favors written evidence over oral testimony, the Respondents’ claim that
they need the continuance so as to have adequate time to present evidence is meritless. The Petitioners’
have full faith in the Court’s ability to determine this issue on the papers alone. Further, the This order
does not require a lengthy hearing with six witnesses. Nor does it require a Texas attorney to expound
upon California law. For those reasons the Court should deny this request.
Dated: November 16, 2018 PARSLEY & MAKARIN
TO
Sean E. Makarin, Attorney for Petitioner
MEMORANDUM OF POINTS AND AUTHOIRIES IN OPPOSITION TO RESPONDENTS” EX PARTE APPLICATION TO.
CONTINUE THE DECEMBER 11, 2018 HEARING FOR ORDER TO SHOW CAUSE WHY AN ALTERNATIVE WRIT OF
MANDATE SHOULD NOT BE ISSUED,10
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PROOF OF SERVICE
I, Sean Makarin, declare that I am a citizen of the United States, over the age of eighteen years
and nota party to the within action. My business address is 140 Geary Street, 4" Floor, San
Francisco, CA 94108,
On November 16, 2018, I served the within:
MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO RESPONDENTS’ EX
PARTE APPLICATION TO CONTINUE THE MBER 11, 2018 HEARING FOR ORDER TO
SHOW CAUSE WHY AN ALTERNATIVE WRIT OF MANDATE SHOULD NOT BE ISSUED.
on the following parties:
Michael C, Osborne
Stevie B. Newton
Jaskiran K. Samra
505 Montgomery Street, Suite 1100
San Francisco, CA 94111
in the manner indicated below:
O BY PERSONAL SERVICE ON ATTORNEY: By placing a true and correct copy of the
document(s) listed above in sealed envelope, addressed to each party above, and by leaving
the envelope or package clearly labeled to identify the attorney being served, at the attorney's
office, with a receptionist or with a person having charge thereof; or if there was no person in
the office with whom the copies may be left when service was effected, then by leaving the
copies between the hours of 9 in the morning and 5 in the afternoon, in a conspicuous place in
the office.
[X] BY ELECTRONIC SERVICE: | electronically served the above referenced document(s)
through File & ServeXpress. E-Service in this action was completed on all of the above
referenced parties with File & ServeXpress. This service complies with the court’s order in
this case.
I declare under penalty of perjury, under the laws of the State of California that the foregoing
is true and correct.
Executed November 16, 2018. at San Francisco, California.
Gy.
Sean Makarin
Preview
10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Walter Parsley, SBN 116534 ELECTRONICALLY Sean E. Makarin, SBN 298772 FILED PARSLEY & MAKARIN Superior Court of Catifornia, 140 Geary Street, 4" Floor County of San Francisco San Francisco, CA 94108 11/16/2018 Telephone: (415) 777-1800 beat haeelt phoebe Email: walter@parsleylaw.com : Deputy Clerk sean@parsleylaw.com Attorney for Petitioner, GUILLAUME GASSUAN and TODD M. MORENO SUPERIOR COURT OF CALIFORNIA CITY AND COUNTY OF SAN FRANCISCO UNLIMITED CIVIL JURISDICTION GUILLAUME GASSUAN, TODD M. MORENO, Case No.: CPF-18-516348 MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO RESPONDENTS’ EX PARTE APPLICATION TO CONTINUE THE DECEMBER 11, 2018 HEARING FOR ORDER TO SHOW CAUSE WHY AN ALTERNATIVE WRIT OF MANDATE SHOULD NOT BE ISSUED. Petitioners, vs. BENEVOLENT AND PROTECTIVE ORDER OF ELKS OF THE UNITED STATES OF AMERICA, MICHAEL T. LUHR, and ROBERT OSTINI, and DOES 1 through 10, inclusive, Date: November 16, 2018 Time: 11:00 AM Dept: 302 Respondents. Judge: Hon. Harold E. Kahn Case Filed: September 19, 2018 we SS SS SS SS eS SS L.INTRODUCTION On September 20, 2018, this Court issued an Order to Show Cause Why an Alternative Writ of Mandate Should Not Be Issued, which directed the BPOE to vacate Elks Executive Orders 17-123 and 17-163 or show cause why it has not done so. A hearing on the Order to Show Cause was set for December 11, 2018, by stipulation between counsel for Petitioners and Respondents. MEMORANDUM OF POINTS AND AUTHOIRIES IN OPPOSITION TO RESPONDENTS’ EX PARTE APPLICATION TO. CONTINUE THE DECEMBER 11, 2018 HEARING FOR ORDER TO SHOW CAUSE WHY AN ALTERNATIVE WRIT OF MANDATE SHOULD NOT BE ISSUED.10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 The Respondents’ Verified Answer to the Petition, which was filed on October 9, narrows the issues in dispute considerably, because Respondents admit many of the critical facts necessary for the Court to rule on the Petition. Among other things, the Respondents’ Verified Answer admits: (1) that Petitioners Gassuan and Moreno were removed from office and suspended summarily, by Orders of the Grand Exalted Ruler (“GER,”) without prior notice or hearing (Answer § 23, line 18-20, {4 19, 20; ) (2) that the Orders were based upon information and belief provided to the GER (Answer, {] 21;) and (3) that the only due process available to Petitioners is the filing of an appeal, for which a $1000 filing fee, each, was required. (Answer, § 23.) In fact, Respondents not only admit that Petitioners are not entitled to a hearing prior to removal and suspension, but they contend that the appeals procedure constitutes adequate due process to Petitioners. (Answer, § 30, lines 7-8.) For these reasons, the hearing on the Order to Show Cause should be straightforward. The Executive Orders from the Grand Exalted Ruler speak for themselves, and Respondents have admitted that punishment was imposed without prior notice and without giving the Petitioners a chance to defend themselves against the alleged violations. The Petitioners contend that the Elks’ admitted procedures violated California law, and Respondents claim that they did not violate California law, and that due process was afforded to the Petitioners. Thus, although there are some tangential facts in dispute, for the most part, all that remains for this Court to decide is whether the Respondents violated California law. In spite of having narrowed the issues with their Answer, the Respondents now claim a need for a full-blown evidentiary hearing with six witnesses plus cross-examination of the Petitioners, for a total of eight witnesses for the Respondents. Additionally, the Respondents have sought to bring in another law firm as new lead counsel, with three San Francisco attorneys, plus one Texas attorney who is apparently needed because he is “intimately familiar with the structure and laws of B.P.O.E. and has represented the organization in numerous cases involving membership rights...throughout the country.” (Respondents’ MPA in Supp. of Ex Parte App., p. 3:4-5.) MEMORANDUM OF POINTS AND AUTHOIRIES IN OPPOSITION TO RESPONDENTS’ EX PARTE APPLICATION TO. CONTINUE THE DECEMBER 11, 2018 HEARING FOR ORDER TO SHOW CAUSE WHY AN ALTERNATIVE WRIT OF MANDATE SHOULD NOT BE ISSUED.10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Inexplicably, the Respondents waited nearly two months before deciding that they needed to have all of these additional attorneys, and then they chose attorneys who they knew had a timing conflict. I. There is no Good Cause to Continue the Stipulated Hearing Date of December 11, 2018 At the time the stipulation was made between the parties, the Respondents were represented by Stephen A. Scott. Subsequently, the Respondents have retained a second firm and now the four respondents are represented by two firms, and six attorneys between those two firms (five California attorneys and one Texas attorney), The Respondents added their second firm more than a month after the Petition was filed and the Order to Show Cause was issued, fully aware of the December 11 hearing date. It is clear then, that the Respondents voluntarily retained a firm that was unavailable for the hearing date and now seek to delay the proceedings based on that alone. Notably, this request comes less than a month before the stipulated hearing date. Now, the Respondents seek to continue the hearing date that they agreed to because their two of their five California counsel are unavailable, and their Texas counsel is also unavailable. In sum, Respondents seek to continue this stipulated hearing by cause of their own delay and because three of their six attorneys are unavailable. A. Good Cause Does Not Exist on the Ground that the Respondents Will be Deprived of Counsel. None of the cases cited by the Respondents apply to this situation. This situation at hand is whether a law and motion hearing should be continued on the ground that three of the six attorneys representing the Respondents are unavailable for a stipulated law and motion hearing date, though the other three are apparently available as they represented when they chose the hearing date. The Respondents’ are correct that the right to counsel is fundamental and they cite Golden State Glass Corp. vy. Superior Court (1939) 13 Cal. 2d. 384, 396, Echlin v. Superior Court of San Mateo Country (1939) 13 Cal. 2d 368, 372, and Mendoza v. Small Claims Court (1958) 49 Cal. 2d 668, 673, to support this contention. MEMORANDUM OF POINTS AND AUTHOIRIES IN OPPOSITION TO RESPONDENTS’ EX PARTE APPLICATION TO. CONTINUE THE DECEMBER 11, 2018 HEARING FOR ORDER TO SHOW CAUSE WHY AN ALTERNATIVE WRIT OF MANDATE SHOULD NOT BE ISSUED.10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 The reliance on Golden Gate Class Corp. is misplaced because that case related to a Court flat out denying the right for a corporate board member to hire his own attorney in a corporation receivership dispute. (/d. at 387-388.) In that instance, the court held that conflicting board members in corporate in receivership dispute could not be denied their own counsel by the Court. (/d. at 396.) Echlin related to a fee dispute between a client who replaced her attorney, during a pending litigation. (Echlin v. Superior Court of San Mateo Country (1939) 13 Cal. 2d 368, 370-371.) In that matter the one attorney was discharged, and the case was allowed to proceed with a new attorney — with the fee dispute to be resolved later. And, Mendoza v. Small Claims Court (1958) 49 Cal. 2d 668, related to the right to counsel in small claims court proceedings, and more specifically the right to stay in an appeal of a small claims court proceeding that related to an unlawful detainer case for non-payment of rent, In this matter, the Respondents are more than adequately represented by multiple attorneys from two reputable law firms. This is not a situation in which the court is refusing to allow any of the attorneys to appear — the Petitioners are not even disputing the Pro Hoc Vice application of Mr. Ewbank — but rather this is a situation in which the Respondents agreed to a hearing date, then hired counsel who were unavailable for the hearing date, and seek a continuance based on their own knowing choice. B. There is No Good Cause to Continue the Hearing on the Grounds that the Three Unavailable Attorneys are Necessary for an Evidentiary Hearing at Which Oral Testimony will be Presented. The Respondents’ request for continuance is also predicated on the false assumption that the December hearing is an evidentiary hearing which will require the testimony of six witnesses and the cross examination of Gassuan and Moreno - apparently necessitating two San Francisco attorneys and an Elk specialist from Texas. To support this claim, the Respondents misleadingly cite American Federation of State, County, & Municipal Employees v. Metropolitan Water Dist. (2005) 126 Cal. App. 4°" 247 for the following proposition: “Though the Court is to hold an evidentiary hearing, it has broad discretion in deciding MEMORANDUM OF POINTS AND AUTHOIRIES IN OPPOSITION TO RESPONDENTS’ EX PARTE APPLICATION TO. CONTINUE THE DECEMBER 11, 2018 HEARING FOR ORDER TO SHOW CAUSE WHY AN ALTERNATIVE WRIT OF MANDATE SHOULD NOT BE ISSUED.10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 what and whom to allow during the hearing, including witnesses.” (Respondents’ Memorandum, Pg 5, Line 17-18). This citation does not withstand sustained scrutiny. The case actually states: "In a law and motion, writ of mandate hearing, the trial court has broad discretion to decide a case on the basis of declarations and other documents rather than live, oral testimony. [Citations.] (California School Employees Assn. v. Del Norte County Unified Sch. Dist.(1992) 2 Cal.App.4th 1396, 1405 [ 4 Cal.Rptr.2d 35], citing Cal. Rules of Court, rule 323.)” (American Federation of State, County, & Municipal Employees v. Metropolitan Water Dist. (2005) 126 Cal. App. 4" 247, 263.) The California Rules of Court also make it clear that a writ of mandate is a law and motion matter. (CRC 3.1103(a)(2). Accordingly, a writ of mandate is to be decided on the papers. (CRC 3.1306(a).) And thus, the court has broad leeway to make a ruling based on the declaration and other documents rather than live oral testimony. (American Federation of State, County, & Municipal Employees v. Metropolitan Water Dist. (2005) 126 Cal. App. 4°" 247, 263.). The Respondents also mistakenly rely on Capo for Better Representation v. Kelley (2008) 158 Cal. App. 4"* 1455 for the proposition that the December hearing is to be an evidentiary hearing with oral testimony. Capo resolved an issue about how the Court hearing the writ of mandate is to resolve conflicting written evidence from the lower court or administrative body that the writ is sought against. (d. at 1462.) Still yet, to submit oral testimony at a law and motion hearing the party seeking to present the oral testimony must comply with CRC 3.1306(b). This rule requires the party seeking to submit oral testimony to submit a written statement, no later than three court days before the hearing, stating the nature and extent of the evidence proposed to be introduced and a reasonable time estimate for the hearing. The Respondents’ have not made a request pursuant to 3.1306(b) and apparently, simply presume that they are entitled to present oral testimony. In this matter, as set forth above, the issues are actually quite narrow. There is no dispute as to what the Respondents did to Petitioners, and how they did it: it is all in writing. Respondents claim that MEMORANDUM OF POINTS AND AUTHOIRIES IN OPPOSITION TO RESPONDENTS’ EX PARTE APPLICATION TO. CONTINUE THE DECEMBER 11, 2018 HEARING FOR ORDER TO SHOW CAUSE WHY AN ALTERNATIVE WRIT OF MANDATE SHOULD NOT BE ISSUED.10 il 12 13 14 16 17 18 19 20 21 22 23 24 25 26 27 28 their internal appeals procedures are adequate to provide members of BPOE due process in accordance with California law, and Petitioners contend that the BPOE procedures are inadequate as a matter of law. Respondents are doing nothing more than attempting to turn a narrow hearing into a circus, and divert the Court's attention from the issues presented by the writ petition. Since the writ process favors written evidence over oral testimony, the Respondents’ claim that they need the continuance so as to have adequate time to present evidence is meritless. The Petitioners’ have full faith in the Court’s ability to determine this issue on the papers alone. Further, the This order does not require a lengthy hearing with six witnesses. Nor does it require a Texas attorney to expound upon California law. For those reasons the Court should deny this request. Dated: November 16, 2018 PARSLEY & MAKARIN TO Sean E. Makarin, Attorney for Petitioner MEMORANDUM OF POINTS AND AUTHOIRIES IN OPPOSITION TO RESPONDENTS” EX PARTE APPLICATION TO. CONTINUE THE DECEMBER 11, 2018 HEARING FOR ORDER TO SHOW CAUSE WHY AN ALTERNATIVE WRIT OF MANDATE SHOULD NOT BE ISSUED,10 il 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PROOF OF SERVICE I, Sean Makarin, declare that I am a citizen of the United States, over the age of eighteen years and nota party to the within action. My business address is 140 Geary Street, 4" Floor, San Francisco, CA 94108, On November 16, 2018, I served the within: MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO RESPONDENTS’ EX PARTE APPLICATION TO CONTINUE THE MBER 11, 2018 HEARING FOR ORDER TO SHOW CAUSE WHY AN ALTERNATIVE WRIT OF MANDATE SHOULD NOT BE ISSUED. on the following parties: Michael C, Osborne Stevie B. Newton Jaskiran K. Samra 505 Montgomery Street, Suite 1100 San Francisco, CA 94111 in the manner indicated below: O BY PERSONAL SERVICE ON ATTORNEY: By placing a true and correct copy of the document(s) listed above in sealed envelope, addressed to each party above, and by leaving the envelope or package clearly labeled to identify the attorney being served, at the attorney's office, with a receptionist or with a person having charge thereof; or if there was no person in the office with whom the copies may be left when service was effected, then by leaving the copies between the hours of 9 in the morning and 5 in the afternoon, in a conspicuous place in the office. [X] BY ELECTRONIC SERVICE: | electronically served the above referenced document(s) through File & ServeXpress. E-Service in this action was completed on all of the above referenced parties with File & ServeXpress. This service complies with the court’s order in this case. I declare under penalty of perjury, under the laws of the State of California that the foregoing is true and correct. Executed November 16, 2018. at San Francisco, California. Gy. Sean Makarin