Motion,Ex Parte: Robert Elliott vs. Mechanics Bank, a California corporation, as the Successor-in-Interest to Rabobank, N.A., a California corporation, et al.

On December 20, 2021 a Motion,Ex Parte was filed involving a dispute between Robert T. Elliott, and Mechanics Bank, A California Corporation, As The Successor-In-Interest To Rabobank, N.A., A California Corporation, Mechanics Bank, A California Corporation, Successor By Merger To Rabobank, N.A., Mechanics Bank, Successor-In-Interest By Merger To Rabobank, N.A., Rabobank, N.A., A California Corporation, for Breach of Contract/Warranty Unlimited (06) in the District Court of Monterey County.

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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 ) DECLARATION OF ANDREA C. AVILA
Plaintiff, ) IN SUPPORT OF PLAINTIFF’S
13 vs. ) OPPOSITION TO DEFENDANT
) MECHANICS BANK, SUCCESSOR BY
14 MECHANICS BANK, a California ) MERGER TO RABOBANK, N.A.’S EX
corporation, as the Successor-in-Interest to ) PARTE APPLICATION TO REQUEST A
15 Rabobank, N.A.; and DOES 1 – 40, ) CONTINUANCE OF PLAINTIFF’S
inclusive, ) MOTION FOR SUMMARY JUDGMENT
16 )
) Date: August 2, 2022
17 Defendants. ) 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
I, ANDREA C. AVILA, hereby declare as follows:
22
1. I am an attorney at law duly admitted to practice before all the courts of the State
23
of California and am a partner at the law firm of Patane • Gumberg, LLP, attorneys for Plaintiff
24
ROBERT T. ELLIOTT (hereinafter referred to as “Plaintiff”), and I have personal knowledge of
25
each fact stated in this declaration. If called upon as a witness to testify I could and would testify
26
to the following facts:
27
2. I have reviewed the file and am familiar with its contents, and therefore have
28
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______________________________________________________________________________
Declaration of Andrea C. Avila in Support of 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 personal knowledge of the documents herein stated.
2 3. A true and correct copy of an email from attorney Matthew S. Kennedy of July
3 15, 2022 is attached hereto as Exhibit A.
4 4. A true and correct copy of Defendant Mechanics Bank’s Case Management
5 Statement filed with this Court on July 20, 2022 is attached hereto as Exhibit B.
6 5. A true and correct copy of an email exchange between myself and attorney
7 Matthew S. Kennedy of July 19, 2022 and July 20, 2022 is attached hereto as Exhibit C.
8 6. A true and correct copy of my email to attorney Matthew S. Kennedy of July 21,
9 2022 is attached hereto as Exhibit D.
10 7. A true and correct copy of an email from attorney Matthew S. Kennedy of July
11 28, 2022 sent at 3:39 p.m. is attached hereto as Exhibit E.
12 8. A true and correct copy of an email from attorney Matthew S. Kennedy of July
13 28, 2022 sent at 3:45 p.m. is attached hereto as Exhibit F.
14 9. A true and correct copy of an email exchange between myself and attorney
15 Matthew S. Kennedy of July 28, 2022 is attached hereto as Exhibit G.
16 10. A true and correct copy of an email exchange between myself and attorney
17 Matthew S. Kennedy of July 29, 2022 is attached hereto as Exhibit H.
18 11. A true and correct copy of an email from attorney Matthew S. Kennedy of July
19 30, 2022 is attached hereto as Exhibit I.
20 12. A true and correct copy of an email exchange between myself and attorney
21 Matthew S. Kennedy of July 29, 2022 and July 30, 2022 is attached hereto as Exhibit J.
22 13. I have been copied on emails exchanged between Mr. Tamagni and Mr. Kennedy.
23 I am familiar with the discussions between the two.
24 I declare under penalty of perjury under the laws of the State of California that the
25 foregoing is true and correct.
26

27 Dated: August 1, 2022 ____________________________________
ANDREA C. AVILA
28
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______________________________________________________________________________
Declaration of Andrea C. Avila in Support of 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
Exhibit A
Christina Miccoli

From: Andrea Avila
Sent: Monday, August 1, 2022 9:23 AM
To: Christina Miccoli
Subject: FW: [EXTERNAL]:Elliott v. Mechanics Bank (Monterey County Superior Court Case No. 21CV003944)

Importance: High

From: Matthew S. Kennedy
Sent: Friday, July 15, 2022 1:45 PM
To: Nina Patane ; Andrea Avila
Cc: Christina Miccoli
Subject: RE: [EXTERNAL]:Elliott v. Mechanics Bank (Monterey County Superior Court Case No. 21CV003944)
Importance: High

Good afternoon Nina | Andrea, the MSJ hearing date is set for Friday, September 30, 2022. I will be out of the
country commencing September 19 and will return late November 4 [this is a pre-planned – paid for trip].
Additionally, I definitely want to appear in person for this MSJ hearing.

I am not requesting any changes to the briefing schedule [Sep 16, 2022 - Def MB's Opposition to MSJ Due (14
calendar days before hearing date) Sep 23, 2022 - Pltf's Reply re MSJ Due (5 calendar days before hearing
date)], but I am requesting that the hearing date be moved to the end of the 2nd week in November or any date
in the 3rd week of November so that I can attend in person.

Please advise if you will accommodate my schedule in this regard.

Thank you, standing by for your confirmation ...

Please confirm your receipt of this E-Mail - thank you.
Best regards,

Matthew S. Kennedy, Esq.

From: Matthew S. Kennedy
Sent: Thursday, July 14, 2022 2:44 PM
To: Christina Miccoli
Cc: Nina Patane ; Andrea Avila
Subject: RE: [EXTERNAL]:Elliott v. Mechanics Bank (Monterey County Superior Court Case No. 21CV003944)

Receipt confirmed.

Best regards,

Matthew S. Kennedy, Esq.

1
From: Christina Miccoli
Sent: Thursday, July 14, 2022 8:47 AM
To: Matthew S. Kennedy
Cc: Nina Patane ; Andrea Avila
Subject: [EXTERNAL]:Elliott v. Mechanics Bank (Monterey County Superior Court Case No. 21CV003944)

CAUTION: This email originated from outside of the organization. Do not click links or open attachments unless you recognize the
sender and know the content is safe.

Counsel:

Attached please find the following:

1. NOTICE OF MOTION AND MOTION BY PLAINTIFF ROBERT T. ELLIOTT FOR SUMMARY JUDGMENT;
2. MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION BY PLAINTIFF ROBERT T. ELLIOTT FOR
SUMMARY JUDGMENT;
3. SEPARATE STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF MOTION BY PLAINTIFF ROBERT T.
ELLIOTT FOR SUMMARY JUDGMENT;
4. DECLARATION OF ROBERT T. ELLIOTT IN SUPPORT OF MOTION BY PLAINTIFF ROBERT T. ELLIOTT FOR SUMMARY
JUDGMENT;
5. DECLARATION OF ANDREA C. AVILA IN SUPPORT OF MOTION BY PLAINTIFF ROBERT T. ELLIOTT FOR SUMMARY
JUDGMENT; and
6. PROOF OF SERVICE.

Christina Miccoli
Paralegal
Direct 831.417.3611
Main 831.755.1461 • Fax 831.755.1477
P.O Box 3770, Salinas, CA 93912
cmiccoli@pglawfirm.com

CONFIDENTIAL COMMUNICATION
CONFIDENTIALITY: This e‐mail, and any attachments thereto, is intended only for use by the addressee(s) named herein
and may contain legally privileged and/or confidential information. If you are not the intended recipient of this e‐mail,
you are hereby notified that any dissemination, distribution or copying of this e‐mail, and any attachments thereto, is
strictly prohibited.
If you have received this e‐mail in error, please immediately notify me by telephone at (831) 755‐1461 and permanently
delete the original and any copy of any e‐mail and printout thereof.

2
Exhibit B
CM-110
ATTORNEY OR PARTY WITHOUT ATTORNEY (Name, State Bar number, and address): FOR COURT USE ONLY

Matthew S. Kennedy, Esq. CABN 125620
Matthew S. Kennedy, A Professional Law Corporation ELECTRONICALLY FILED BY
POB 1031 Superior Court of California,
San Luis Obispo, CA 93406-1031 County of Monterey
TELEPHONE NO.:805-544-5002 FAX NO.(Optional): 805-544-5003
On 7/20/2022 11:00 AM
E-MAIL ADDRESS:msk@KennedyLawRealty.com By: Mariela Hernandez, Deputy
Defendant Mechanics Bank successor by merger to Rabobank, N.A.
ATTORNEY FOR (Name):

SUPERIOR COURT OF CALIFORNIA, COUNTY OF Monterey
STREET ADDRESS: 1200 Aguajito Road
MAILING ADDRESS: 1200 Aguajito Road
CITY AND ZIP CODE:Monterey, CA 93940
BRANCH NAME: Monterey Branch
PLAINTIFF/PETITIONER: Robert T. Elliott

DEFENDANT/RESPONDENT: Mechanics Bank, successor by merger to Rabobank NA

CASE MANAGEMENT STATEMENT CASE NUMBER:

(Check one):  UNLIMITED CASE  LIMITED CASE 21CV003944
(Amount demanded (Amount demanded is $25,000
exceeds $25,000) or less)
A CASE MANAGEMENT CONFERENCE is scheduled as follows:
Date: August 2, 2022 Time: 9:00 AM Dept.: 14 Div.: Room:
Address of court (if different from the address above):

 Notice of Intent to Appear by Telephone, by (name): Matthew S. Kennedy, Esq.
INSTRUCTIONS: All applicable boxes must be checked, and the specified information must be provided.

1. Party or parties (answer one):
a.  This statement is submitted by party (name): Mechanics Bank, successor by merger to Rabobank, N.A.
b.  This statement is submitted jointly by parties (names):
2. Complaint and cross-complaint (to be answered by plaintiffs and cross-complainants only)
a. The complaint was filed on (date): December 20, 2021
b.  The cross-complaint, if any, was filed on (date):
3. Service (to be answered by plaintiffs and cross-complainants only)
a.  All parties named in the complaint and cross-complaint have been served, have appeared, or have been dismissed.
b.  The following parties named in the complaint or cross-complaint
(1)  have not been served (specify names and explain why not):
(2)  have been served but have not appeared and have not been dismissed (specify names):
(3)  have had a default entered against them (specify names):
c.  The following additional parties may be added (specify names, nature of involvement in case, and the date by which
they may be served):

4. Description of case
a. Type of case in  complaint  cross-complaint (Describe, including causes of action):
Breach of contract; Declaratory Relief.

Page 1 of 5

Form Adopted for Mandatory Use CASE MANAGEMENT STATEMENT Cal. Rules of Court,
Judicial Council of California rules 3.720–3.730
CM-110 [Rev. September 1, 2021] www.courts.ca.gov
CM-110
PLAINTIFF/PETITIONER: Robert T. Elliott CASE NUMBER:

21CV003944
DEFENDANT/RESPONDENT:
Mechanics Bank, successor by merger to Rabobank, N.A.
4. b. Provide a brief statement of the case, including any damages. (If personal injury damages are sought, specify the injury and
damages claimed, including medical expenses to date [indicate source and amount], estimated future medical expenses, lost
earnings to date, and estimated future lost earnings. If equitable relief is sought, describe the nature of the relief.)
Plaintiff brings this action alleging that an agreement was formed via an email with Defendant's employee on January 23, 2014
to settle a multi-million dollar judgment against the Plaintiff in return for the amount of $140,000, and declaratory relief in
regard thereto. Defendant denies Plaintiff's allegations.
 (If more space is needed, check this box and attach a page designated as Attachment 4b.)
5. Jury or nonjury trial
The party or parties request  a jury trial  a nonjury trial. (If more than one party, provide the name of each party
requesting a jury trial):

6. Trial date
a.  The trial has been set for (date):
b.  No trial date has been set. This case will be ready for trial within 12 months of the date of the filing of the complaint (if
not, explain): Additional time is required to complete discovery following unsuccessful early settlement attempts and for filing dispositive motions [MSJ
etc., by Defendant].
c. Dates on which parties or attorneys will not be available for trial (specify dates and explain reasons for unavailability):
September 19 - November 4, 2022 [out of the country]; April 1 - 22, 2023 [out of the country]; May 15 - June 30, 2023 [out
of the country]; August 1 - 22 [out of the country]; November 15, 2023 - January 5, 2024 [out of the country].

7. Estimated length of trial
The party or parties estimate that the trial will take (check one):
a.  days (specify number): 2-3
b.  hours (short causes) (specify):

8. Trial representation (to be answered for each party)
The party or parties will be represented at trial  by the attorney or party listed in the caption  by the following:
a. Attorney:
b. Firm:
c. Address:
d. Telephone number: f. Fax number:
e. E-mail address: g. Party represented:
 Additional representation is described in Attachment 8.
9. Preference
 This case is entitled to preference (specify code section):
10. Alternative dispute resolution (ADR)
a. ADR information package. Please note that different ADR processes are available in different courts and communities; read
the ADR information package provided by the court under rule 3.221 of the California Rules of Court for information about the
processes available through the court and community programs in this case.
(1) For parties represented by counsel: Counsel has has not provided the ADR information package identified
in rule 3.221 to the client and reviewed ADR options with the client.
(2) For self-represented parties: Party has has not reviewed the ADR information package identified in rule 3.221.
b. Referral to judicial arbitration or civil action mediation (if available).
(1)  This matter is subject to mandatory judicial arbitration under Code of Civil Procedure section 1141.11 or to civil action
mediation under of Code of Civil Procedure section 1775.3 because the amount in controversy does not exceed the
statutory limit.
(2)  Plaintiff
elects to refer this case to judicial arbitration and agrees to limit recovery to the amount specified in Code of
Civil Procedure section 1141.11.
(3)  This case is exempt from judicial arbitration under rule 3.811 of the California Rules of Court or from civil action
mediation under Code of Civil Procedure section 1775 et seq. (specify exemption):
Exceeds jurisdiction
CM-110 [Rev. September 1, 2021] CASE MANAGEMENT STATEMENT Page 2 of 5
CM-110
PLAINTIFF/PETITIONER: Robert T. Elliott CASE NUMBER:

21CV003944
DEFENDANT/RESPONDENT:
Mechanics Bank, successor by merger to Rabobank, N.A.
10. c. Indicate the ADR process or processes that the party or parties are willing to participate in, have agreed to participate in, or
have already participated in (check all that apply and provide the specified information):

The party or parties completing If the party or parties completing this form in the case have agreed to
this form are willing to participate in or have already completed an ADR process or processes,
participate in the following ADR indicate the status of the processes (attach a copy of the parties' ADR
processes (check all that apply): stipulation):

Mediation session not yet scheduled
(1) Mediation  Mediation session scheduled for (date):
Agreed to complete mediation by (date):
Mediation completed on (date):

Settlement conference not yet scheduled
(2) Settlement
 Settlement conference scheduled for (date):
conference
Agreed to complete settlement conference by (date):
Settlement conference completed on (date):

Neutral evaluation not yet scheduled
(3) Neutral evaluation  Neutral evaluation scheduled for (date):
Agreed to complete neutral evaluation by (date):
Neutral evaluation completed on (date):

Judicial arbitration not yet scheduled
(4) Nonbinding judicial  Judicial arbitration scheduled for (date):
arbitration
Agreed to complete judicial arbitration by (date):
Judicial arbitration completed on (date):

Private arbitration not yet scheduled
(5) Binding private  Private arbitration scheduled for (date):
arbitration
Agreed to complete private arbitration by (date):
Private arbitration completed on (date):

ADR session not yet scheduled
(6) Other (specify):  ADR session scheduled for (date):
Agreed to complete ADR session by (date):
ADR completed on (date):

CM-110 [Rev. September 1, 2021] CASE MANAGEMENT STATEMENT Page 3 of 5
CM-110
PLAINTIFF/PETITIONER: Robert T. Elliott CASE NUMBER:

21CV003944
DEFENDANT/RESPONDENT:
Mechanics Bank, successor by merger to Rabobank, N.A.
11. Insurance
a.  Insurance carrier, if any, for party filing this statement (name):
b. Reservation of rights:  Yes  No
c.  Coverage issues will significantly affect resolution of this case (explain):

12. Jurisdiction
Indicate any matters that may affect the court's jurisdiction or processing of this case and describe the status.
 Bankruptcy  Other (specify):
Status:

13. Related cases, consolidation, and coordination
a.  There are companion, underlying, or related cases.
(1) Name of case:
(2) Name of court:
(3) Case number:
(4) Status:
 Additional cases are described in Attachment 13a.
b.  A motion to  consolidate  coordinate will be filed by (name party):

14. Bifurcation
 The party or parties intend to file a motion for an order bifurcating, severing, or coordinating the following issues or causes of
action (specify moving party, type of motion, and reasons):

15. Other motions
 The party or parties expect to file the following motions before trial (specify moving party, type of motion, and issues):
Defendant - pre-trial motions [motions in limine etc]; Motion for Summary Judgment | adjudication of issues.

16. Discovery
a.  The party or parties have completed all discovery.
b.  The following discovery will be completed by the date specified (describe all anticipated discovery):
Party Description Date
Defendant Written Discovery - form - special interrogatories, request for
production, request for admissions etc. March 2023
Defendant Deposition of Defendant and witnesses May 2023
Defendant Expert Discovery Per Code

c.  The following discovery issues, including issues regarding the discovery of electronically stored information, are
anticipated (specify):

CM-110 [Rev. September 1, 2021] CASE MANAGEMENT STATEMENT Page 4 of 5
CM-110
PLAINTIFF/PETITIONER: Robert T. Elliott CASE NUMBER:

21CV003944
DEFENDANT/RESPONDENT:
Mechanics Bank, successor by merger to Rabobank, N.A.
17. Economic litigation
a.  This is a limited civil case (i.e., the amount demanded is $25,000 or less) and the economic litigation procedures in Code
of Civil Procedure sections 90-98 will apply to this case.
b.  This is a limited civil case and a motion to withdraw the case from the economic litigation procedures or for additional
discovery will be filed (if checked, explain specifically why economic litigation procedures relating to discovery or trial
should not apply to this case):

18. Other issues
 The party or parties request that the following additional matters be considered or determined at the case management
conference (specify):

19. Meet and confer
a.  The party or parties have met and conferred with all parties on all subjects required by rule 3.724 of the California Rules of
Court (if not, explain):

b.  After meeting and conferring as required by rule 3.724 of the California Rules of Court, the parties agree on the following
(specify):
The parties have engaged in early resolution discussions that partly dealt with issues under rule 3.724, however,
there remains further discussions per said rule.

20. Total number of pages attached (if any):
I am completely familiar with this case and will be fully prepared to discuss the status of discovery and alternative dispute resolution,
as well as other issues raised by this statement, and will possess the authority to enter into stipulations on these issues at the time of
the case management conference, including the written authority of the party where required.

Date: July 20 2022 Digitally signed by
Matthew Scott Kennedy,
Esq.
Date: 2022.07.20 10:29:08
Matthew S. Kennedy, Esq. /s/ Matthew S. Kennedy, Esq. -07'00'

(TYPE OR PRINT NAME) (SIGNATURE OF PARTY OR ATTORNEY)

 Additional signatures are attached.

CM-110 [Rev. September 1, 2021] CASE MANAGEMENT STATEMENT Page 5 of 5
1 PROOF OF SERVICE
2 Elliott v. Mechanics Bank, etc., et al.
MCSC Case No. 21 CV 003944
3
STATE OF CALIFORNIA, COUNTY OF SAN LUIS OBISPO
4
I am employed in the County of San Luis Obispo, State of California. I am over the age
5 of 18 and not a party to the within action; my business address is Post Office Box 1031, San Luis
Obispo, California 93406-1031.My electronic service address is msk@KennedyLawRealty.com.
6
On July 20, 2022, I served the foregoing document described as “Defendant Mechanics
7 Bank’s Case Management Statement” on the interested parties in this action addressed as
follows:
8 SEE ATTACHED MAILING LIST
9 The following is the procedure in which service of this document was effected:
10 BY MAIL: I am “readily familiar” with the firm’s practice of collection and processing
correspondence for mailing. Under that practice it would be deposited with the U.S. Postal
11 Service on that same day with postage thereon fully prepaid at Carlsbad, California, in the
ordinary course of business. I am aware that on motion of the party served, service is
12 presumed invalid if postal cancellation date or postage meter date is more than one day
after date of deposit for mailing in affidavit.
13
BY OVERNIGHT DELIVERY: I deposited such envelope, with delivery fees paid or
14 provided for, in a box or other facility regularly maintained by UPS/Federal Express, or
delivered to a driver or courier authorized by UPS/Federal Express to receive documents.
15
BY E-MAIL: I caused this document to be transmitted via e-mail to the e-mail address(es)
16 listed for the addressee(s). The document is being transmitted via e-mail pursuant to
agreement of counsel authorizing service of the document via e-mail; or The document
17 is being transmitted via e-mail as a courtesy only and not pursuant to any stipulation of
counsel authorizing service of the document via e-mail.
18
BY E-MAIL: Pursuant to Code of Civil Procedure section 1010.6 and California
19 Rules of Court, rule 2.251, I caused this document to be transmitted via e-mail to the
e-mail address(es) listed for the addressee(s). No electronic message or other indication
20 that the transmission was unsuccessful was received within a reasonable time after the
transmission.
21 ELECTRONIC SERVICE: Pursuant to California Rules of Court, Rules 2.250 et seq.
and 2.251(a)(2)(B) and California Code of Civil Procedure section 1010.6(C)(2). The
22 document was submitted to Odyssey eFileCA to be electronically filed with the above
referenced California Superior Court (the “Court”) and Odyssey eFileCA was instructed
23 to electronically serve the document; or The document is being transmitted via Odyssey
eFileCA as a courtesy only and not pursuant to any stipulation of counsel authorizing
24 service of the document via e-mail.
25 Executed on July 20, 2022, at Nuevo Vallarta, Nayarit, Mexico.
I declare under penalty of perjury under the laws of the State of California that the above
26 is true and correct.
27 By: Matthew S. Kennedy /s/ Matthew S. Kennedy (C.R.C. 2.257)
28 Digitally signed by Matthew
Scott Kennedy, Esq.
Date: 2022.07.20 10:29:28
-07'00'
-1-
Elliott v. Mechanics Bank etal.
Monterey Co. Sup. Ct. Case No. 21CV003944
POS Def. Mechanics Bank CMC Statement
1 PROOF OF SERVICE MAILING LIST
2 Elliott v. Mechanics Bank, etc., et al.
Monterey County Sup. Ct. Case No: 21 CV 003944
3
Nina M. Patane, Esq. Attorney for Judgment Debtor Robert T.
4 Andrea C. Avila, Esq. Elliott
Patane Gumberg Avila, LLP
5 4 Rossi Circle, Ste 231
Salinas, CA 93907
6 Tel: 831.755.1461
Email:npatane@pglawfirm.com;
7 aavila@pglawfirm.com

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-2-
Elliott v. Mechanics Bank etal.
Monterey Co. Sup. Ct. Case No. 21CV003944
POS Def. Mechanics Bank CMC Statement
Exhibit C
Christina Miccoli

From: Andrea Avila
Sent: Monday, August 1, 2022 9:23 AM
To: Christina Miccoli
Subject: FW: Elliott v. Mechanics Bank (Monterey County Superior Court Case No. 21CV003944)

Importance: High

From: Matthew S. Kennedy
Sent: Wednesday, July 20, 2022 5:40 PM
To: Andrea Avila
Cc: Nina Patane ; Christina Miccoli
Subject: FW: Elliott v. Mechanics Bank (Monterey County Superior Court Case No. 21CV003944)
Importance: High

Good afternoon Andrea, in response to your below E-Mail [Sent: Tuesday, July 19, 2022 1:23 PM]. While you may
claim to be very much in favor of extending professional courtesies, my office to date has inexplicably not been
the recipient of the same.
Recall that your office defaulted my client just days before the date that I informed Nina Patane in an E-Mail
that my client’s Answer would be timely filed; your office thereafter refused to sign a Stipulation to set aside
the default requiring my client to file a motion for relief from that default, and only then did your office sign the
Stipulation.
Now I come to you with a bona fide reason for your office to extend a professional courtesy based upon my pre-
arranged travel plans.
I have stated that I would like to be in the courtroom for this MSJ hearing.
Please reconsider my below request for this professional courtesy and to voluntarily continue the MSJ hearing
date to the end of the 2nd week in November or any date in the 3rd week of November so that I can attend in
person.

In the event your office or your client will not agree to do so, then you will leave me no option but to bring an
ex parte application.
Please let me know by end of business, tomorrow, July 21, 2022, after which we will proceed with an ex parte.

Thank you, standing by for your confirmation ...

Please confirm your receipt of this E-Mail - thank you.
Best regards,

Matthew S. Kennedy, Esq.

From: Andrea Avila
Sent: Tuesday, July 19, 2022 1:23 PM
To: Matthew S. Kennedy ; Nina Patane
1
Cc: Christina Miccoli
Subject: RE: [EXTERNAL]:Elliott v. Mechanics Bank (Monterey County Superior Court Case No. 21CV003944)

Mr. Kennedy:

I am very much in favor or extending professional courtesies. If your request had moved the hearing for a one and
possibly two weeks, I may have been able to convince my client to agree. However, my client is not authorizing me to
agree to the delay requested. As he has expressed to you in the past, the judgment and liens have a stranglehold on his
financial freedom. As a result, he is anxiously awaiting the hearing and is not inclined to delay it to accommodate non‐
emergency events. I hope you understand.

Sincerely,
Andrea

I am not requesting any changes to the briefing schedule [Sep 16, 2022 - Def MB's Opposition to MSJ Due (14
calendar days before hearing date) Sep 23, 2022 - Pltf's Reply re MSJ Due (5 calendar days before hearing
date)], but I am requesting that the hearing date be moved to the end of the 2nd week in November or any date
rd
in the 3 week of November so that I can attend in person.

Please advise if you will accommodate my schedule in this regard.

Thank you, standing by for your confirmation ...

Please confirm your receipt of this E-Mail - thank you.
Best regards,

Matthew S. Kennedy, Esq.

Receipt confirmed.

Best regards,

Matthew S. Kennedy, Esq.
2
From: Christina Miccoli
Sent: Thursday, July 14, 2022 8:47 AM
To: Matthew S. Kennedy
Cc: Nina Patane ; Andrea Avila
Subject: [EXTERNAL]:Elliott v. Mechanics Bank (Monterey County Superior Court Case No. 21CV003944)

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Counsel:

Attached please find the following:

Christina Miccoli
Paralegal
Direct 831.417.3611
Main 831.755.1461 • Fax 831.755.1477
P.O Box 3770, Salinas, CA 93912
cmiccoli@pglawfirm.com

3
Exhibit D
Christina Miccoli

From: Andrea Avila
Sent: Monday, August 1, 2022 9:24 AM
To: Christina Miccoli
Subject: FW: Elliott v. Mechanics Bank (Monterey County Superior Court Case No. 21CV003944)

From: Andrea Avila
Sent: Thursday, July 21, 2022 11:01 AM
To: Matthew S. Kennedy
Cc: Nina Patane ; Christina Miccoli
Subject: RE: Elliott v. Mechanics Bank (Monterey County Superior Court Case No. 21CV003944)

Mr. Kennedy:

I would have no issue extending the date, but my client is the one who is damaged each day, each month, each year that
this improper judgment and lien remain pending. I had to relay this extension request to Mr. Elliott as it is my duty to do
so, and he did not agree. He wants closure which I can certainly understand. He has various business opportunities that
he could explore if his property were unencumbered. On many occasions, he has been foreclosed from refinancing and
taking advantage of low interest rates. The judgment and lien are extremely costly to him. Additionally, he suffers great
emotional distress from the looming multi‐million dollar judgment that grows every day. In other words, I hope to
impress upon you that there are financial costs associated with every day that this issue remains unresolved. We
strongly believe the court will grant our summary judgment and order relief requested. I would think you would
understand that my client has no desire to delay the relief that is long overdue.

For the record, my client stated that if you had an illness or required hospitalization, he would certainly
reconsider. However, given that you are making the request to accommodate your vacation and you are not barred
from attending via phone conference, he cannot agree. Also, I noticed from your recent CMC statement that you are out
of country quite frequently, so this vacation does not look like a unique occurrence.

I was not involved in the default matter you reference. In fact, when I stepped in, we signed the Stipulation within days
after I was able to review your documents supporting the merger.

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 in various business
opportunities until this matter is resolved;
 The judgment that is the subject of this action grows daily;
 You are asking for a delay to accommodate one of your several out of country trips;
 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;
 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.

Please feel free to call me if you wish to further discuss.
Sincerely,
Andrea

1
From: Matthew S. Kennedy
Sent: Wednesday, July 20, 2022 5:40 PM
To: Andrea Avila
Cc: Nina Patane ; Christina Miccoli
Subject: FW: Elliott v. Mechanics Bank (Monterey County Superior Court Case No. 21CV003944)
Importance: High

Good afternoon

Case Info

Case No.

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Document Filed Date

August 01, 2022

Case Filing Date

December 20, 2021

County

Parties

Andrea Cruz Avila Attorney for the Plaintiff
Matthew Scott Kennedy Attorney for the Defendant
Mechanics Bank, a California corporation, as the Successor-in-Interest to Rabobank, N.A., a California corporation Defendant
MECHANICS BANK, a California corporation, successor by merger to Rabobank, N.A. Defendant
Mechanics Bank, successor-in-interest by merger to Rabobank, N.A. (Rabobank, N.A. erroneously also named) Defendant
Nina Michele Patane Attorney for the Plaintiff
Rabobank, N.A., a California corporation Defendant
Robert T. Elliott Plaintiff
Scott Kennedy Attorneys for Defendants
MATTHEW SHELTON Attorneys for Defendants
Paul Moncrief Attorney
David Shapiro Attorney
Robert Tapscott Attorney
Michael Sosnowski Attorney

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Motion,Ex Parte: Robert Elliott vs. Mechanics Bank, a California corporation, as the Successor-in-Interest to Rabobank, N.A., a California corporation, et al.

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Parties