Preview
1 NINA M. PATANE (SBN 157059)
ANDREA C. AVILA (SBN 193982)
2 PATANE • GUMBERG • AVILA, LLP
Attorneys at Law
3 4 Rossi Circle, Suite 231
Salinas, CA 93907
4 Mailing: P.O. Box 3770, Salinas, CA 93912
Telephone: (831) 755-1461
5 Facsimile: (831) 755-1477
Email: npatane@pglawfirm.com
6 aavila@pglawfirm.com
7 Attorneys for Plaintiff,
ROBERT T. ELLIOTT
8
9 SUPERIOR COURT OF CALIFORNIA – COUNTY OF MONTEREY
10 UNLIMITED JURISDICTION
11 ROBERT T. ELLIOTT, ) CASE NO. 21CV003944
)
12 ) PLAINTIFF’S OPPOSITION TO
Plaintiff, )
vs. DEFENDANT MECHANICS BANK,
13 )
) SUCCESSOR BY MERGER TO
14 MECHANICS BANK, a California ) RABOBANK, N.A.’S EX PARTE
corporation, as the Successor-in-Interest to ) APPLICATION TO REQUEST A
15 Rabobank, N.A.; and DOES 1 – 40, inclusive, ) CONTINUANCE OF PLAINTIFF’S
) MOTION FOR SUMMARY JUDGMENT
16 )
Defendants. ) Date: August 2, 2022
17 ) Time: 8:30 a.m.
) Dept.: 14
18 ) Judge: Hon. Carrie M. Panetta
)
19 ) Complaint Filed: December 21, 2021
) Trial Date: Not Set
20 )
21
22 Plaintiff ROBERT T. ELLIOTT (“Plaintiff”) hereby submits his Opposition to Defendant
23 MECHANICS BANK, successor by merger to Rabobank, N.A.’s (“Defendant”) Ex Parte
24 Application to request continuance of Plaintiff’s Motion for Summary Judgment (the
25 “Application”).
26 I. INTRODUCTION
27 Defendant’s counsel initially requested an extension of the hearing on Plaintiff’s Motion
28 for Summary Judgment (“Motion”) of six to seven weeks solely because he had a pre-planned out
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______________________________________________________________________________
Plaintiff’s Opposition to Defendant Mechanics Bank, Successor by Merger to Rabobank, N.A.’s Ex Parte
Application to Request a Continuance of Plaintiff’s Motion for Summary Judgment; Case No. 21CV003944
1 of country vacation and insisted on attending the hearing in person. Defendant’s counsel made no
2 mention of any other reason for his extensive request. Plaintiff presently has liens against him and
3 his property which foreclose his ability to sell, refinance and/or participate in business
4 opportunities. For this reason, and because Defendant’s counsel did not describe emergency
5 circumstances such as an illness, Plaintiff denied the request. Plaintiff desires to keep this matter
6 on track for a ruling on his timely filed Motion. Now, in anticipation of bringing this Application
7 before the court, Defendant presents various new and unrelated reasons in its Application in
8 support of its request. None of these reasons were previously discussed in the meet and confer
9 discussions underlying the Application. The court should deny Defendant’s Application because
10 1) the Plaintiff’s Motion for Summary Judgment was timely filed per the Code of Civil Procedure;
11 2) Defendant has not demonstrated irreparable harm; and 3) Plaintiff is prejudiced by delays in the
12 hearing.
13
II. STATEMENT OF FACTS
14
Plaintiff’s Complaint asserting a sole cause of action for Breach of Contract was filed on
15
December 20, 2021. Plaintiff thereafter responded to extensive discovery propounded by
16
17 Defendant including Request for Production of Documents, Special Interrogatories and Form
18 Interrogatories. Plaintiff’s Motion was timely filed per Cal. C.C.P. on July 14, 2022. On July 15,
19 2022, Defendant’s counsel requested that the hearing on the Motion set for September 30, 2022 be
20 extended because he has prepaid travel plans and “definitely” wanted to attend the hearing in
21
person. Defendant’s counsel requested a delay to the latter part of the second week of November
22
or the third week of November, a delay of six to seven weeks. Defendant’s counsel’s request
23
concluded “Please advise if you will accommodate my schedule.” Declaration of Andrea C. Avila
24
25 “Avila Decl.”, Exhibit A.
26 Defendant’s counsel is a sole practitioner and litigator. Per a recently filed Case
27 Management Conference statement, Defendant’s counsel’s present out of country travel plans are
28
as follows: September 19 - November 4, 2022 [out of the country]; April 1 - 22, 2023 [out of the
-2-
______________________________________________________________________________
Plaintiff’s Opposition to Defendant Mechanics Bank, Successor by Merger to Rabobank, N.A.’s Ex Parte
Application to Request a Continuance of Plaintiff’s Motion for Summary Judgment; Case No. 21CV003944
1 country]; May 15 - June 30, 2023 [out of the country]; August 1 - 22 [out of the country];
2 November 15, 2023 - January 5, 2024 [out of the country]. Avila Decl., Exhibit B.
3 On July 19, 2022, Plaintiff’s counsel responded that Plaintiff was not agreeable to the
4
request as 1) Defendant’s request involved a fairly lengthy delay of six to seven weeks and
5
possibly longer depending on the court’s availability, 2) no-emergency reasons were stated in
6
support of the delay and 3) as such, Plaintiff desired to proceed with the hearing because the liens
7
against him “have a stranglehold on his financial freedom” and accordingly he is prejudiced by
8
9 delays. Avila Decl., Exhibit C. On July 20, 2022, Defendant replied to the aforementioned July
10 19, 2022 email by reiterating the request to accommodate his schedule so that Defendant’s counsel
11 could be physically present for the hearing. Defendant’s counsel stated that if his schedule would
12
not be accommodated, he would be filing an Ex Parte Application to request such accommodation
13
from the court. Avila Decl., Exhibit C. On July 21, 2022, Plaintiff’s counsel replied stating that
14
Plaintiff was not willing to agree to the request as he is damaged each day, each month and each
15
16 year that the judgment and lien remain pending. Plaintiff’ counsel stated:
17 I regret that you will file an ex parte but to be clear:
• The pending judgment and lien are extremely costly to my client and he cannot participate
18 in various business opportunities until this matter is resolved;
• The judgment that is the subject of this action grows daily;
19
• You are asking for a delay to accommodate one of your several out of country trips;
20 • The delay in the hearing is for approximately 6-8 weeks, not one to two weeks which I
could probably convince my client to accommodate;
21 • You are able to participate by phone, but your preference is to attend in person. You are
not foreclosed from participating in the hearing. I believe zoom would be available to you.
22
23 Avila Decl., Exhibit D.
24 On July 28, 2022, in anticipation of filing the Application, Defendant served Plaintiff with a
25 Deposition Notice scheduling his deposition for September 7, 2022 and a separate Request for
26
Production of Documents, Set Two. Avila Decl., Exhibit E. Later that day, Defendant served
27
Plaintiff with a notice of intent to file to the Ex Parte Application requesting a continuance of
28
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______________________________________________________________________________
Plaintiff’s Opposition to Defendant Mechanics Bank, Successor by Merger to Rabobank, N.A.’s Ex Parte
Application to Request a Continuance of Plaintiff’s Motion for Summary Judgment; Case No. 21CV003944
1 Plaintiff Elliott’s Motion for Summary Judgment. Defendant stated that “Grounds for the
2 Application include that essential evidence may exist but cannot be presented in time for the
3 presently scheduled briefing and hearing (Code Civ. Proc., § 437c(h)) and my unavailability to
4
attend the September 30 hearing, remotely or otherwise, as I will be out of the country.” [Emphasis
5
added.] Avila Decl., Exhibit F. The reference to a need for additional evidence before the briefing
6
schedule was new. Defendant’s counsel had previously proposed in meet and confer
7
correspondence that if his request for an extension were accepted, the briefing schedule would
8
9 remain intact. Avila Decl., Exhibit A.
10 On July 29, 2022, Plaintiff’s counsel relayed that Plaintiff could be made available for his
11 deposition the first two weeks of August to avoid any delays of the hearing. Avila Decl., Exhibits
12
G and H. Later that day, Defendant’s counsel responded with no dates and rather alleged that
13
Plaintiff was ignoring the Request for Production of Documents. Avila Decl., Exhibit H. Later
14
that evening, Defendant filed its Ex Parte Application. In its Application, Defendant based its
15
16 request for an extension on grounds that 1) it should be permitted to complete its recently served
17 discovery; and 2) Defendant’s counsel’s out of country trip and “inability to attend the hearing,
18 even remotely.” Defendant’s counsel further asserted that he has a medical procedure on August
19 12 which makes him essentially unable to complete depositions in August. [Emphasis added.]
20
On Saturday, July 30, 2022, Defendant served Plaintiff with a Notice of Taking Deposition of
21
James Tamagni with accompanying request for records. Avila Decl., Exhibit I. Mr. Tamagni has
22
no involvement whatsoever in the contract that is the subject of Plaintiff’s Complaint. The
23
24 contract that is the subject of Plaintiff’s Complaint was exclusively between Plaintiff and
25 Rabobank, now by merger, Mechanics Bank.
26 Plaintiff’s counsel met and conferred with Defendant’s counsel on Saturday, July 30, 2022
27
regarding the depositions and request for documents served on Plaintiff and prepared for Mr.
28
Tamagni. Plaintiff’s counsel offered “If we are able to expedite documents to you and schedule
-4-
______________________________________________________________________________
Plaintiff’s Opposition to Defendant Mechanics Bank, Successor by Merger to Rabobank, N.A.’s Ex Parte
Application to Request a Continuance of Plaintiff’s Motion for Summary Judgment; Case No. 21CV003944
1 depositions before August 12 [the date of Defendant’s counsel’s medical procedure], is this a
2 possibility?” Plaintiff’s counsel was attempting to address Defendant’s counsel’s issue to have all
3 discovery completed before the hearing while preserving the hearing date. On Sunday July 31,
4
2022, Defendant’s counsel replied that he could not proceed accept the aforementioned offer as his
5
calendar is full. Avila Decl., Exhibit J. In other words, Defendant’s counsel cannot move this
6
matter forward in August, cannot proceed with the hearing on the properly noticed Motion in
7
September, cannot attend a hearing between September 19, 2022 through November 4, 2022
8
9 because of his out of country trip and desires the hearing be delayed to the latter part of November
10 so that his schedule may be accommodated even further. Defendant’s Application should be
11 denied.
12
III. LEGAL ARGUMENT
13
A. DEFENDANT’S EX PARTE APPLICATION SHOULD BE DENIED BECAUSE
14 DEFENDANT HAS NOT DEMONSTRATED IRREPARABLE HARM
15 1. Plaintiff fails to establish irreparable harm or injury as required by Cal. Rule
16 of Court 3.102.
An ex parte application requires an affirmative showing in a declaration of competent
17
testimony based on personal knowledge that irreparable harm, immediate danger, or any other
18
statutory basis for granting relief is necessary. (Ca. Rule of Court 3.102). A court will not grant ex
19
parte relief “in any but the plainest and most certain of cases.” Consolidated Const. Co. v. Pacific
20
E. Ry. Co. (1920) 184 Cal. 244, 246.
21
A court must deny an ex parte application where the moving party does not make a
22
showing of irreparable harm or immediate danger. California Rule of Court 3.1202; People ex rel.
23
Allstate Ins. Co. v. Suh (2019) 37 Cal.App.5th 253.
24
25 a. Defendant’s Original Request for an Extension was to Accommodate his Out
of Country Travel and Demand to Attend the Hearing in Person
26
Defendant counsel’s emails requesting an extension speak for themselves. The sole and
27
exclusive issue mentioned was that Defendant’s counsel had a prepaid and pre-planned out of
28
country trip which would preclude him from attending the hearing in person. Defendant
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______________________________________________________________________________
Plaintiff’s Opposition to Defendant Mechanics Bank, Successor by Merger to Rabobank, N.A.’s Ex Parte
Application to Request a Continuance of Plaintiff’s Motion for Summary Judgment; Case No. 21CV003944
1 mentioned nothing about the need for further discovery during the meet and confer discussions.
2 [Further discussed below.] To the contrary, Defendant’s counsel offered to keep the briefing
3 schedule intact if his request was accepted. Moreover, Defendant already had possession of
4 extensive discovery provided by Plaintiff in the form of Form Interrogatories, Special
5 Interrogatories and Request for Production of Documents. Defendant’s counsel also made no
6 mention of an inability to attend the hearing remotely or otherwise during these discussions.
7 Rather, Defendant’s counsel simply stated, “I definitely want to appear in person…”
8 b. Defendant’s Recently Served Discovery in Anticipation of this Ex Parte Request is
Suspect
9
In anticipation of bringing his request for the extension before this court, Defendant adds
10
new assertions that further discovery is needed for it to properly address the Motion. Defendant
11
promptly served the deposition notices after his two requests for an extension to accommodate his
12
insistence on appearing in person based on his out of country trip were denied. Because this need
13
for discovery had never previously been mentioned, it is viewed as a delay tactic.
14
Adding to the questionable maneuvering is the suggestion that Mr. Tamagni, a totally
15
independent judgment debtor, would have any relevance to the current Motion. It cannot be
16
disputed that the contact between Mr. Tamagni and Defendant’s counsel have concerned Mr.
17
Tamagni’s independent attempts to negotiate with Defendant and have no bearing on whether a
18
contract between Plaintiff and Defendant was formed in 2014.
19
20 c. Plaintiff has offered to accommodate Defendant’s Counsel’s Schedule While
Preserving the Current Hearing Date
21
Plaintiff offered to expedite production of records and to hold depositions in August to
22
address Defendant’s discovery concerns. After this proposal was made, Defendant’s counsel now
23
claims that he will have a medical procedure on August 12, 2002, that he cannot speak for a week
24
thereafter and will have limited speaking ability in the week thereafter. Plaintiff’s counsel then
25
offered to conduct depositions before August 12. Defendant’s counsel now claims this is
26
impossible because his schedule is full. Defendant’s counsel insists that delay of the properly
27
notice Motion is the only option.
28
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______________________________________________________________________________
Plaintiff’s Opposition to Defendant Mechanics Bank, Successor by Merger to Rabobank, N.A.’s Ex Parte
Application to Request a Continuance of Plaintiff’s Motion for Summary Judgment; Case No. 21CV003944
1 d. Defendant’s Counsel is Not Harmed by Attending the Hearing via Zoom or
other through other remote means
2
Defendant’s counsel’s insistence to attend the hearing in person preceded his new claim
3
that he has no remote access. Defendant’s counsel is a solo practitioner and active litigator. The
4
delay of the hearing on this properly noticed Motion defies the California rules of civil procedure
5
and should not be permitted. Because Defendant has not shown that irreparable injury requisite
6
under California rules of court, Defendant has not met his burden. Defendant’s Application should
7
be denied.
8
B. DEFENDANT’S EX PARTE APPLICATION SHOULD BE DENIED BECAUSE
9 DELAYS IN THE HEARING ARE PREJUDICIAL TO PLAINTIFF
10 As noted above, the pending judgment and lien against Plaintiff and his assets is financially
11 devastating. Plaintiff desires the justice that he has long awaited. Plaintiff has taken proper steps
12 to achieve his day in court by filing his complaint and serving his properly noticed and timely filed
13 Motion. Further delay only adds to Plaintiff’s extensive financial damage and missed business
14 opportunities.
15 IV. CONCLUSION
16 Based on the foregoing, Defendant’s Ex Parte Application should be denied.
17
18 Respectfully Submitted,
19 Dated: August 1, 2022 PATANE • GUMBERG • AVILA, LLP
20
21
By:
22 ANDREA C. AVILA
Attorney for Plaintiff
23 ROBERT T. ELLIOTT
24
25
26
27
28
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______________________________________________________________________________
Plaintiff’s Opposition to Defendant Mechanics Bank, Successor by Merger to Rabobank, N.A.’s Ex Parte
Application to Request a Continuance of Plaintiff’s Motion for Summary Judgment; Case No. 21CV003944
Preview
1 NINA M. PATANE (SBN 157059) ANDREA C. AVILA (SBN 193982) 2 PATANE • GUMBERG • AVILA, LLP Attorneys at Law 3 4 Rossi Circle, Suite 231 Salinas, CA 93907 4 Mailing: P.O. Box 3770, Salinas, CA 93912 Telephone: (831) 755-1461 5 Facsimile: (831) 755-1477 Email: npatane@pglawfirm.com 6 aavila@pglawfirm.com 7 Attorneys for Plaintiff, ROBERT T. ELLIOTT 8 9 SUPERIOR COURT OF CALIFORNIA – COUNTY OF MONTEREY 10 UNLIMITED JURISDICTION 11 ROBERT T. ELLIOTT, ) CASE NO. 21CV003944 ) 12 ) PLAINTIFF’S OPPOSITION TO Plaintiff, ) vs. DEFENDANT MECHANICS BANK, 13 ) ) SUCCESSOR BY MERGER TO 14 MECHANICS BANK, a California ) RABOBANK, N.A.’S EX PARTE corporation, as the Successor-in-Interest to ) APPLICATION TO REQUEST A 15 Rabobank, N.A.; and DOES 1 – 40, inclusive, ) CONTINUANCE OF PLAINTIFF’S ) MOTION FOR SUMMARY JUDGMENT 16 ) Defendants. ) Date: August 2, 2022 17 ) Time: 8:30 a.m. ) Dept.: 14 18 ) Judge: Hon. Carrie M. Panetta ) 19 ) Complaint Filed: December 21, 2021 ) Trial Date: Not Set 20 ) 21 22 Plaintiff ROBERT T. ELLIOTT (“Plaintiff”) hereby submits his Opposition to Defendant 23 MECHANICS BANK, successor by merger to Rabobank, N.A.’s (“Defendant”) Ex Parte 24 Application to request continuance of Plaintiff’s Motion for Summary Judgment (the 25 “Application”). 26 I. INTRODUCTION 27 Defendant’s counsel initially requested an extension of the hearing on Plaintiff’s Motion 28 for Summary Judgment (“Motion”) of six to seven weeks solely because he had a pre-planned out -1- ______________________________________________________________________________ Plaintiff’s Opposition to Defendant Mechanics Bank, Successor by Merger to Rabobank, N.A.’s Ex Parte Application to Request a Continuance of Plaintiff’s Motion for Summary Judgment; Case No. 21CV003944 1 of country vacation and insisted on attending the hearing in person. Defendant’s counsel made no 2 mention of any other reason for his extensive request. Plaintiff presently has liens against him and 3 his property which foreclose his ability to sell, refinance and/or participate in business 4 opportunities. For this reason, and because Defendant’s counsel did not describe emergency 5 circumstances such as an illness, Plaintiff denied the request. Plaintiff desires to keep this matter 6 on track for a ruling on his timely filed Motion. Now, in anticipation of bringing this Application 7 before the court, Defendant presents various new and unrelated reasons in its Application in 8 support of its request. None of these reasons were previously discussed in the meet and confer 9 discussions underlying the Application. The court should deny Defendant’s Application because 10 1) the Plaintiff’s Motion for Summary Judgment was timely filed per the Code of Civil Procedure; 11 2) Defendant has not demonstrated irreparable harm; and 3) Plaintiff is prejudiced by delays in the 12 hearing. 13 II. STATEMENT OF FACTS 14 Plaintiff’s Complaint asserting a sole cause of action for Breach of Contract was filed on 15 December 20, 2021. Plaintiff thereafter responded to extensive discovery propounded by 16 17 Defendant including Request for Production of Documents, Special Interrogatories and Form 18 Interrogatories. Plaintiff’s Motion was timely filed per Cal. C.C.P. on July 14, 2022. On July 15, 19 2022, Defendant’s counsel requested that the hearing on the Motion set for September 30, 2022 be 20 extended because he has prepaid travel plans and “definitely” wanted to attend the hearing in 21 person. Defendant’s counsel requested a delay to the latter part of the second week of November 22 or the third week of November, a delay of six to seven weeks. Defendant’s counsel’s request 23 concluded “Please advise if you will accommodate my schedule.” Declaration of Andrea C. Avila 24 25 “Avila Decl.”, Exhibit A. 26 Defendant’s counsel is a sole practitioner and litigator. Per a recently filed Case 27 Management Conference statement, Defendant’s counsel’s present out of country travel plans are 28 as follows: September 19 - November 4, 2022 [out of the country]; April 1 - 22, 2023 [out of the -2- ______________________________________________________________________________ Plaintiff’s Opposition to Defendant Mechanics Bank, Successor by Merger to Rabobank, N.A.’s Ex Parte Application to Request a Continuance of Plaintiff’s Motion for Summary Judgment; Case No. 21CV003944 1 country]; May 15 - June 30, 2023 [out of the country]; August 1 - 22 [out of the country]; 2 November 15, 2023 - January 5, 2024 [out of the country]. Avila Decl., Exhibit B. 3 On July 19, 2022, Plaintiff’s counsel responded that Plaintiff was not agreeable to the 4 request as 1) Defendant’s request involved a fairly lengthy delay of six to seven weeks and 5 possibly longer depending on the court’s availability, 2) no-emergency reasons were stated in 6 support of the delay and 3) as such, Plaintiff desired to proceed with the hearing because the liens 7 against him “have a stranglehold on his financial freedom” and accordingly he is prejudiced by 8 9 delays. Avila Decl., Exhibit C. On July 20, 2022, Defendant replied to the aforementioned July 10 19, 2022 email by reiterating the request to accommodate his schedule so that Defendant’s counsel 11 could be physically present for the hearing. Defendant’s counsel stated that if his schedule would 12 not be accommodated, he would be filing an Ex Parte Application to request such accommodation 13 from the court. Avila Decl., Exhibit C. On July 21, 2022, Plaintiff’s counsel replied stating that 14 Plaintiff was not willing to agree to the request as he is damaged each day, each month and each 15 16 year that the judgment and lien remain pending. Plaintiff’ counsel stated: 17 I regret that you will file an ex parte but to be clear: • The pending judgment and lien are extremely costly to my client and he cannot participate 18 in various business opportunities until this matter is resolved; • The judgment that is the subject of this action grows daily; 19 • You are asking for a delay to accommodate one of your several out of country trips; 20 • The delay in the hearing is for approximately 6-8 weeks, not one to two weeks which I could probably convince my client to accommodate; 21 • You are able to participate by phone, but your preference is to attend in person. You are not foreclosed from participating in the hearing. I believe zoom would be available to you. 22 23 Avila Decl., Exhibit D. 24 On July 28, 2022, in anticipation of filing the Application, Defendant served Plaintiff with a 25 Deposition Notice scheduling his deposition for September 7, 2022 and a separate Request for 26 Production of Documents, Set Two. Avila Decl., Exhibit E. Later that day, Defendant served 27 Plaintiff with a notice of intent to file to the Ex Parte Application requesting a continuance of 28 -3- ______________________________________________________________________________ Plaintiff’s Opposition to Defendant Mechanics Bank, Successor by Merger to Rabobank, N.A.’s Ex Parte Application to Request a Continuance of Plaintiff’s Motion for Summary Judgment; Case No. 21CV003944 1 Plaintiff Elliott’s Motion for Summary Judgment. Defendant stated that “Grounds for the 2 Application include that essential evidence may exist but cannot be presented in time for the 3 presently scheduled briefing and hearing (Code Civ. Proc., § 437c(h)) and my unavailability to 4 attend the September 30 hearing, remotely or otherwise, as I will be out of the country.” [Emphasis 5 added.] Avila Decl., Exhibit F. The reference to a need for additional evidence before the briefing 6 schedule was new. Defendant’s counsel had previously proposed in meet and confer 7 correspondence that if his request for an extension were accepted, the briefing schedule would 8 9 remain intact. Avila Decl., Exhibit A. 10 On July 29, 2022, Plaintiff’s counsel relayed that Plaintiff could be made available for his 11 deposition the first two weeks of August to avoid any delays of the hearing. Avila Decl., Exhibits 12 G and H. Later that day, Defendant’s counsel responded with no dates and rather alleged that 13 Plaintiff was ignoring the Request for Production of Documents. Avila Decl., Exhibit H. Later 14 that evening, Defendant filed its Ex Parte Application. In its Application, Defendant based its 15 16 request for an extension on grounds that 1) it should be permitted to complete its recently served 17 discovery; and 2) Defendant’s counsel’s out of country trip and “inability to attend the hearing, 18 even remotely.” Defendant’s counsel further asserted that he has a medical procedure on August 19 12 which makes him essentially unable to complete depositions in August. [Emphasis added.] 20 On Saturday, July 30, 2022, Defendant served Plaintiff with a Notice of Taking Deposition of 21 James Tamagni with accompanying request for records. Avila Decl., Exhibit I. Mr. Tamagni has 22 no involvement whatsoever in the contract that is the subject of Plaintiff’s Complaint. The 23 24 contract that is the subject of Plaintiff’s Complaint was exclusively between Plaintiff and 25 Rabobank, now by merger, Mechanics Bank. 26 Plaintiff’s counsel met and conferred with Defendant’s counsel on Saturday, July 30, 2022 27 regarding the depositions and request for documents served on Plaintiff and prepared for Mr. 28 Tamagni. Plaintiff’s counsel offered “If we are able to expedite documents to you and schedule -4- ______________________________________________________________________________ Plaintiff’s Opposition to Defendant Mechanics Bank, Successor by Merger to Rabobank, N.A.’s Ex Parte Application to Request a Continuance of Plaintiff’s Motion for Summary Judgment; Case No. 21CV003944 1 depositions before August 12 [the date of Defendant’s counsel’s medical procedure], is this a 2 possibility?” Plaintiff’s counsel was attempting to address Defendant’s counsel’s issue to have all 3 discovery completed before the hearing while preserving the hearing date. On Sunday July 31, 4 2022, Defendant’s counsel replied that he could not proceed accept the aforementioned offer as his 5 calendar is full. Avila Decl., Exhibit J. In other words, Defendant’s counsel cannot move this 6 matter forward in August, cannot proceed with the hearing on the properly noticed Motion in 7 September, cannot attend a hearing between September 19, 2022 through November 4, 2022 8 9 because of his out of country trip and desires the hearing be delayed to the latter part of November 10 so that his schedule may be accommodated even further. Defendant’s Application should be 11 denied. 12 III. LEGAL ARGUMENT 13 A. DEFENDANT’S EX PARTE APPLICATION SHOULD BE DENIED BECAUSE 14 DEFENDANT HAS NOT DEMONSTRATED IRREPARABLE HARM 15 1. Plaintiff fails to establish irreparable harm or injury as required by Cal. Rule 16 of Court 3.102. An ex parte application requires an affirmative showing in a declaration of competent 17 testimony based on personal knowledge that irreparable harm, immediate danger, or any other 18 statutory basis for granting relief is necessary. (Ca. Rule of Court 3.102). A court will not grant ex 19 parte relief “in any but the plainest and most certain of cases.” Consolidated Const. Co. v. Pacific 20 E. Ry. Co. (1920) 184 Cal. 244, 246. 21 A court must deny an ex parte application where the moving party does not make a 22 showing of irreparable harm or immediate danger. California Rule of Court 3.1202; People ex rel. 23 Allstate Ins. Co. v. Suh (2019) 37 Cal.App.5th 253. 24 25 a. Defendant’s Original Request for an Extension was to Accommodate his Out of Country Travel and Demand to Attend the Hearing in Person 26 Defendant counsel’s emails requesting an extension speak for themselves. The sole and 27 exclusive issue mentioned was that Defendant’s counsel had a prepaid and pre-planned out of 28 country trip which would preclude him from attending the hearing in person. Defendant -5- ______________________________________________________________________________ Plaintiff’s Opposition to Defendant Mechanics Bank, Successor by Merger to Rabobank, N.A.’s Ex Parte Application to Request a Continuance of Plaintiff’s Motion for Summary Judgment; Case No. 21CV003944 1 mentioned nothing about the need for further discovery during the meet and confer discussions. 2 [Further discussed below.] To the contrary, Defendant’s counsel offered to keep the briefing 3 schedule intact if his request was accepted. Moreover, Defendant already had possession of 4 extensive discovery provided by Plaintiff in the form of Form Interrogatories, Special 5 Interrogatories and Request for Production of Documents. Defendant’s counsel also made no 6 mention of an inability to attend the hearing remotely or otherwise during these discussions. 7 Rather, Defendant’s counsel simply stated, “I definitely want to appear in person…” 8 b. Defendant’s Recently Served Discovery in Anticipation of this Ex Parte Request is Suspect 9 In anticipation of bringing his request for the extension before this court, Defendant adds 10 new assertions that further discovery is needed for it to properly address the Motion. Defendant 11 promptly served the deposition notices after his two requests for an extension to accommodate his 12 insistence on appearing in person based on his out of country trip were denied. Because this need 13 for discovery had never previously been mentioned, it is viewed as a delay tactic. 14 Adding to the questionable maneuvering is the suggestion that Mr. Tamagni, a totally 15 independent judgment debtor, would have any relevance to the current Motion. It cannot be 16 disputed that the contact between Mr. Tamagni and Defendant’s counsel have concerned Mr. 17 Tamagni’s independent attempts to negotiate with Defendant and have no bearing on whether a 18 contract between Plaintiff and Defendant was formed in 2014. 19 20 c. Plaintiff has offered to accommodate Defendant’s Counsel’s Schedule While Preserving the Current Hearing Date 21 Plaintiff offered to expedite production of records and to hold depositions in August to 22 address Defendant’s discovery concerns. After this proposal was made, Defendant’s counsel now 23 claims that he will have a medical procedure on August 12, 2002, that he cannot speak for a week 24 thereafter and will have limited speaking ability in the week thereafter. Plaintiff’s counsel then 25 offered to conduct depositions before August 12. Defendant’s counsel now claims this is 26 impossible because his schedule is full. Defendant’s counsel insists that delay of the properly 27 notice Motion is the only option. 28 -6- ______________________________________________________________________________ Plaintiff’s Opposition to Defendant Mechanics Bank, Successor by Merger to Rabobank, N.A.’s Ex Parte Application to Request a Continuance of Plaintiff’s Motion for Summary Judgment; Case No. 21CV003944 1 d. Defendant’s Counsel is Not Harmed by Attending the Hearing via Zoom or other through other remote means 2 Defendant’s counsel’s insistence to attend the hearing in person preceded his new claim 3 that he has no remote access. Defendant’s counsel is a solo practitioner and active litigator. The 4 delay of the hearing on this properly noticed Motion defies the California rules of civil procedure 5 and should not be permitted. Because Defendant has not shown that irreparable injury requisite 6 under California rules of court, Defendant has not met his burden. Defendant’s Application should 7 be denied. 8 B. DEFENDANT’S EX PARTE APPLICATION SHOULD BE DENIED BECAUSE 9 DELAYS IN THE HEARING ARE PREJUDICIAL TO PLAINTIFF 10 As noted above, the pending judgment and lien against Plaintiff and his assets is financially 11 devastating. Plaintiff desires the justice that he has long awaited. Plaintiff has taken proper steps 12 to achieve his day in court by filing his complaint and serving his properly noticed and timely filed 13 Motion. Further delay only adds to Plaintiff’s extensive financial damage and missed business 14 opportunities. 15 IV. CONCLUSION 16 Based on the foregoing, Defendant’s Ex Parte Application should be denied. 17 18 Respectfully Submitted, 19 Dated: August 1, 2022 PATANE • GUMBERG • AVILA, LLP 20 21 By: 22 ANDREA C. AVILA Attorney for Plaintiff 23 ROBERT T. ELLIOTT 24 25 26 27 28 -7- ______________________________________________________________________________ Plaintiff’s Opposition to Defendant Mechanics Bank, Successor by Merger to Rabobank, N.A.’s Ex Parte Application to Request a Continuance of Plaintiff’s Motion for Summary Judgment; Case No. 21CV003944