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1 KAUFMAN DOLOWICH & VOLUCK, LLP
TAD A. DEVLIN (SBN 190355)
2 KARTIKEY A. PRADHAN (SBN 291870)
425 California Street, Suite 2100
ELECTRONICALLY
3 San Francisco, California 94104
Telephone: (415) 926-7600 FILED
Facsimile: (415) 926-7601 Superior Court of California,
4 County of San Francisco
5 Attorneys for Defendants 08/19/2020
BAYVIEW PROPERTY MANAGERS, INC. Clerk of the Court
BY: RONNIE OTERO
6 JAMES RODERICK BLANDING TRUST 2011 Deputy Clerk
AND FREDERICK JEROME DIXON
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SUPERIOR COURT OF CALIFORNIA
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COUNTY OF SAN FRANCISCO
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11 MARLON KITTLES, Case No.: CGC-19-577737
Complaint Filed: June 18, 2019
12 Plaintiff, Trial Date: December 7, 2020
13 v.
14 FREDERICK JEROME DIXON; BAY VIEW DEFENDANTS MEMORANDUM OF
PROPERTY MANAGERS, INC. JAMES POINTS AND AUTHORITIES IN
15 RODERICK BLANDING 2011 TRUST; AND SUPPORT OF THEIR EX PARTE
DOES 1 TO 50, APPLICATION TO CONTINUE THE
16 DECEMBER 7, 2020 TRIAL DATE
Defendants.
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Date: August 20, 2020
18 Time: 11:00 a.m.
Dept.: 206
19 Judge: Hon. Garrett Wong
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MPA ISO EX PARTE APPLICATION TO CONTINUE THE DECEMBER 7, 2020 TRIAL DATE
1 MEMORANDUM OF POINTS AND AUTHORITIES
2 I. INTRODUCTION.
3 This Court should grant this application to continue the trial date by 189 days, to June 14,
4 2021, or a date thereafter, for good cause based on several grounds. The parties have stipulated to
5 the requested continuance and have mutually agreed to a 189-day trial continuance to June 14, 2020,
6 or a date convenient to the Court.
7 Kaufman, Dolowich & Voluck LLP (“KDV”) is in the process withdrawing as counsel for
8 Defendant Frederick Jerome Dixon (“Dixon” or “Mr. Dixon”) due to a breakdown in the attorney-
9 client relationship. Considering, Plaintiff Marlon Kittles claims against Defendants’ revolve around
10 Mr. Dixon’s actions on February 8, 2018, he is a critical witness in this matter and his testimony and
11 cooperation are essential for the ultimate adjudication of this matter. However, all attempts at trying
12 to contact Mr. Dixon have failed and it appears that he is refusing to speak to his attorneys.
13 Mr. Dixon’s refusal to cooperate, combined with the sudden onset of COVID-19 has severely
14 affected the parties’ ability to conduct discovery. Defendants’ had last scheduled to take Plaintiff’s
15 deposition on March 30, 2020, which could not proceed, and discovery served on Mr. Dixon has still
16 not been responded to, because counsel has been unable to speak to him.
17 Moreover, Defendants Bayview Property Managers, Inc. (“Bayview”) and James Roderick
18 Blanding Trust 2011 (“Blanding Trust”) intend to file a Motion for Summary Judgment and/or
19 Summary Adjudication, presently due on August 21, 2020. However, their inability to depose
20 Plaintiff and Mr. Dixon’s refusal to speak to counsel has made it unreasonably difficult for
21 Defendants to assemble the evidence needed to file the motion. To note, Defendants’ lead trial
22 counsel, Tad A. Devlin, is also unavailable on December 7, 2021 due to a trial in Los Angeles
23 Superior Court, case number BC620133.
24 Finally, the parties intend to actively engage in further written and deposition discovery and
25 assessing the possibility of an informal resolution. No party will be prejudiced by the granting of this
26 application and this is the first requested continuance of the trial in this matter. However, both parties
27 will be severely prejudiced if this application is not granted.
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MPA ISO EX PARTE APPLICATION TO CONTINUE THE DECEMBER 7, 2020 TRIAL DATE
1 II. ABILITY FOR THIS COURT TO GRANT THIS APPLICATION.
2 This Court may hear and grant this application pursuant to California Code of Civil Procedure
3 section 1005(b), which provides that a "court, or a judge thereof, may prescribe a shorter time" than
4 otherwise prescribed for filing and service of motion papers prior to a hearing. Further, California
5 Code of Civil Procedure section 128(a)(8) provides that this Court may amend and control its process
6 and orders to make them conform to law and justice. Moreover, San Francisco Superior Court Local
7 Rule 6(B) provides that a request to continue trial pursuant to a stipulation may be brought on an ex
8 parte basis.
9 Finally, Defendants’ request for a 189-day trial continuance to June 14, 2021, or a date
10 thereafter, is authorized pursuant to California Rules of Court, Rule 3.1332(c) and supported by the
11 factors of subsection (d) (d)(1), (2), (4), (5) and (9)-(11).
12 III. FACTS RELATING TO THIS REQUEST
13 Plaintiff filed the Complaint on June 18, 2019. [Declaration of Kartikey A. Pradhan, ¶ 1].
14 Defendant retained KDV to defend this action on October 3, 2019. [Pradhan Decl., ¶ 2]. Plaintiff
15 alleges that he was physically attacked by Defendant Dixon on February 8, 2018. [Pradhan Decl., ¶
16 3]. Defendants’ filed an Answer on October 11, 2019. [Pradhan Decl., ¶ 4]. Since retention, the
17 parties have engaged in written discovery and are in the process of scheduling depositions for
18 several different witnesses including named Plaintiff and Defendants. [Pradhan Decl., ¶ 5, 6, 7].
19 Defendant Dixon’s counsel last spoke to him around November 2019 and has been attempting to
20 contact him since March 2020. [Pradhan Decl., ¶ 8]. Defendant Dixon was under criminal
21 proceedings for this matter and his counsel was waiting for Defendant Dixon to contact him after
22 his criminal proceedings were over. [Pradhan Decl., ¶ 9]. Counsel has attempted to contact Mr.
23 Dixon to speak to him regarding the incident, including preparing responses to discovery served on
24 him by Plaintiff and discuss payment of fees and costs, with no success. [Pradhan Decl., ¶ 10].
25 Counsel has called and left messages for Mr. Dixon at his phone number and has not received a
26 response. [Pradhan Decl., ¶ 11]. Counsel has attempted to contact him through his previous
27 employer and landlord, Roderick Blanding, at his current address. [Pradhan Decl., ¶ 12, 13].
28 Counsel sent him a letter via certified mail advising that the Firm will be withdrawing from his
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MPA ISO EX PARTE APPLICATION TO CONTINUE THE DECEMBER 7, 2020 TRIAL DATE
1 representation because of his refusal to return his calls. [Pradhan Decl., ¶ 14]. The letter advises
2 Mr. Dixon of the pending discovery and the trial date and advises him to retain counsel at the
3 earliest. Id.
4 USPS was initially unable to deliver the certified mail therefore counsel rescheduled
5 delivery and also sent it via regular mail. [Pradhan Decl., ¶ 15, 16]. Mr. Dixon’s refusal to speak
6 to counsel has rendered it unreasonably difficult to carry out the representation effectively. [Pradhan
7 Decl., ¶ 17].
8 The sudden onset of the COVID-19 pandemic has substantially delayed depositions in this
9 matter because the Parties intend to take the depositions of key witnesses in person. [Pradhan Decl.,
10 ¶ 18]. Moreover, without taking the key depositions, Defendants Bayview and Blanding Trust 2011
11 are unable to prepare and file their Motion for Summary Judgment/Summary Adjudication,
12 presently due on August 21, 2020. [Pradhan Decl., ¶ 19]. The lead trial counsel, Tad A. Devlin, is
13 set for another trial at Los Angeles Superior Court case number BC620133 on December 7, 2020.
14 The parties also intend to attempt mediation after completion of discovery, including key
15 depositions, which have been substantially delayed due to the pandemic. In the interest of a mutual
16 resolution, the parties have agreed that is in their mutual interest to continue the trial for 180-days
17 or a date thereafter based on the Court’s docket, and have stipulated to continue the trial date.
18 [Pradhan Decl., ¶ 20, 21].
19 The action is presently set for trial on December 7, 2020 and there have been no prior trial
20 continuances. [Pradhan Decl., ¶ 22].
21 Therefore, Defendants’ request the Court to grant this application and continue the trial date
22 by 180 days or a date thereafter, based on the Court’s availability.
23 IV. THIS COURT SHOULD GRANT THE PARTIES’ FOR A TRIAL
24 CONTINUANCE.
25 Defendants’ application should be granted because good cause exists for the continuance of
26 trial and both parties have stipulated to the request. Furthermore, a continuance of trial will serve the
27 interests of fairness for the parties, by ensuring that they are adequately represented at trial and receive
28 their day in court.
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MPA ISO EX PARTE APPLICATION TO CONTINUE THE DECEMBER 7, 2020 TRIAL DATE
1 A. Legal Standard.
2 Trial courts have inherent authority granted to them by the California Constitution, Art.
3 VI § 1 to control their own dockets and the proceedings before them. Freiberg v. Superior Court
4 (1995) 33 Cal.App.4th 1484, 1489 ("Trial courts generally have the inherent power to stay
5 proceedings in the interests of justice and to promote judicial efficiency"). More specifically, trial
6 courts may grant a continuance of the trial date for "good cause." Cal. Rules of Court ("CRC"), Rule
7 3.1332(b); see also Eastwood v. Froehlich, (1976) 60 Cal.App.3d 523, 529 (a motion to continue the
8 trial date is "addressed to the sound discretion of the court"); People ex rel. Dept. Pub. Wks. v. Busick,
9 (1968) 259 Cal.App.2d 744, 749 (noting that "all such motions are addressed to the sound discretion
10 of the court").
11 California courts frequently address the good cause concept. See, e.g., Waters v. Superior
12 Court, (1962) 58 Ca1.2d 885, 893; Laraway v. Sutro, Co., (2002) 96 Cal.App.4th 266, 274 (noting that
13 it is "not unusual" for statutes containing a good cause requirement to leave the term undefined and,
14 thus, "[i]t usually falls to the courts to establish the boundaries of good cause"); American Contract
15 Services v. Allied Mold & Die, Inc., (2001) 94 Cal.App.4th 854, 862. In Waters, the California Supreme
16 Court generally explained that "the concept of good cause should not be enshrined in legal formation;
17 it calls for a factual exposition of a reasonable ground for the sought order. Waters, 58 Ca1.2d at 893;
18 see also Laraway, 96 Cal.App.4th at 274 (explaining that "[i]n determining the meaning of 'good cause'
19 in a particular context, the courts utilize common sense based upon the totality of the circumstances,"
20 including "the purpose of the underlying statutory scheme"); American Contract Services, 94
21 Ca1.App.4th at 862 (explaining that "the concept of good cause is 'relative'; its existence depends on
22 the particular circumstances of each case" and essentially, any matter that has a bearing on the issues
23 at hand may be considered").
24 In other words, this Court has full discretion in granting a trial continuance and should analyze
25 the facts to determine if good cause exists for such a continuance. As shown below, California Rules
26 of Court Rule 3.1332 provides the guiding factors to determine if a good cause exists for a continuance.
27 Here, it is clear that these factors weigh in favor of this Court granting Defendants’ Application for a
28 Trial Continuance.
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MPA ISO EX PARTE APPLICATION TO CONTINUE THE DECEMBER 7, 2020 TRIAL DATE
1 B. Good Cause Exists For A Continuance Under California Rules of Court, Rule
2 3.1332.
3 Defendants’ application for a trial continuance should be granted based on good
4 cause, because the factors upon which a trial court should base its decision favor a continuance.
5 California Rules of Court, Rule 3.1332 states:
6 A party seeking a continuance of the date set for trial, whether contested or
uncontested or stipulated to by the parties, must make the request for a continuance
7 by a noticed motion or an ex parte application under the rules in chapter 4 of this
division, with supporting declarations.
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CRC Rule 3.1332(c) sets forth several circumstances indicate good cause for a trial
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continuance, including the following which is relevant to this application:
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(2) The unavailability of a party because of death, illness, or other
11 excusable circumstances;
12 (3) The unavailability of trial counsel because of death, illness, or other
excusable circumstances;
13 (4) The substitution of trial counsel, but only where there is an affirmative
14 showing that the substitution is required in the interest of justice;
(6) A party’s excused inability to obtain essential testimony, documents, or
15 other material evidence despite diligent efforts; or
16 (7) A significant, unanticipated change in the status of the case as a result of
which the case is not ready for trial.
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Further, under CRC Rule 3.1332(d), "[i]n ruling on a motion or application for continuance,
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the court must consider all the facts and circumstances that are relevant to the determination." CRC
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Rule 3.1332(d) sets forth several such factors, which the Parties believes weigh in favor of a trial
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continuance, including:
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(1) The proximity of the trial date;
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(2) Whether there was any previous continuance, extension of time, or delay of
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trial due to any party;
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(3) The length of the continuance requested;
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(4) The availability of alternative means to address the problem that gave rise to
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the motion or application for a continuance;
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(5) The prejudice that parties or witnesses will suffer as a result of the
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continuance;
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MPA ISO EX PARTE APPLICATION TO CONTINUE THE DECEMBER 7, 2020 TRIAL DATE
1 (6) If the case is entitled to a preferential trial setting, the reasons for that status
2 and whether the need for a continuance
3 (7) The court’s calendar and the impact of granting a continuance on other
4 pending trials;
5 (8) Whether trial counsel is engaged in another trial;
6 (9) Whether all parties have stipulated to a continuance;
7 (10) Whether the interests of justice are best served by a continuance, by the trial of
8 the matter, or by imposing conditions on the continuance.
9 (11) Any other fact or circumstance relevant to the fair determination of the
10 motion or application.
Cal. Rules of Court, Rule 3.1332(d)(1)-(11). As shown below, majority of these factors cut in favor
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12 of granting the Parties' trial continuance.
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1. CRC Rule 3.1332(c) provides the circumstance for why this trial should be
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continued.
15 CRC Rule 3.1332(c) provides specific circumstances for finding good cause to continue
16 trial, specifically, the unavailability of a party due to an excusable circumstance; the unavailability
17 of trial counsel because of an excusable circumstance; the substitution of a trial counsel based on
18 an affirmative showing that substitution is required in the interests of justice; a party’s excused
19 inability to obtain essential testimony, documents, or other material evidence despite diligent
20 efforts; and a significant unanticipated change in the status of the case as a result of which the
21 case is not ready for trial. Pursuant to the guiding principles of Cal. Rules of Court, Rule
22 3.1332(c), the specific circumstances present here are: Defendants’ counsel withdrawing
23 representation for the lead Defendant, Mr. Dixon due to Mr. Dixon’s refusal to speak to counsel;
24 the parties’ inability to take key depositions and obtain essential testimony from Plaintiff Marion
Kittles and Defendant Dixon due to Mr. Dixon’s refusal to cooperate and the sudden onset of the
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COVID-19 pandemic; counsel’s inability to speak to Mr. Dixon to discuss the facts of the case
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and respond to discovery on his behalf and unavailability of trial counsel on December 7, 2020
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due to trial in Los Angeles Superior Court case number BC620133.
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MPA ISO EX PARTE APPLICATION TO CONTINUE THE DECEMBER 7, 2020 TRIAL DATE
1 If this Court decides to grant the continuance, neither party will be prejudiced. In fact, a
2 continuance of trial would promote judicial economy and justice, as it will allow all parties to be
3 fully represented and ensure that the parties get their fair day in court.
4 2. CRC Rule 3.1332(d) provides factors this Court should consider when
determining if good cause exists to continue trial.
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In addition to the circumstances set forth by CRC Rule 3.1332(c) regarding good cause,
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CRC Rule 3.1332(d) also provides several factors for this Court to consider to help further this
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determination. The Parties believe that all relevant factors weigh in the favor of continuance,
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specifically CRC Rule 3.1332(d)(1), (2), (4), (5) and (9)-(11). Therefore, after analyzing these
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factors, the Court should find that good cause exists to continue this trial.
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a. CRC Rule 3.1332(d)(1) — Trial is still 4 months away.
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Trial is still four months away in this matter, such that this Court can make adequate use of
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the open space created by the continued trial.
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b. CRC Rule 3.1332(d)(2) — There have been no previous continuances of trial in
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this case.
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There have been no previous continuances of trial or any delay in this litigation for that matter.
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If the Court does not grant a continuance, the parties will be heavily prejudiced because they would not
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be adequately represented by trial. Thus, good cause exists for this continuance.
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c. CRC Rule 3.1332(d)(4) — There are no other means to resolve the issue.
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There are no other reasonable alternative means to address the primary issue necessitating this
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trial continuance: namely that Mr. Dixon’s refusal to cooperate with counsel which is necessitating
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withdrawal of representation and the onset of the COVID-19 pandemic which as caused substantial
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and unreasonable delay in completing discovery. A trial continuance is the only option to allow the
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parties' trial counsel to prepare this matter for trial and to allow Mr. Dixon to obtain adequate
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representation.
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d. CRC Rule 3.1332(d)(5) — No parties will be prejudiced by a continuance.
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Here, no parties will be prejudiced by this continuance as both parties have actually
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stipulated to this continuance.
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MPA ISO EX PARTE APPLICATION TO CONTINUE THE DECEMBER 7, 2020 TRIAL DATE
1 e. CRC Rule 3.1332(d)(8) — Trial counsel is engaged in another trial no December
2 7, 2020
3 Here, the lead trial counsel, Tad A. Devlin has a trial scheduled on December 7, 2020
4 in Los Angeles Superior Court, case number BC620133.
5 f. CRC Rule 3.1332(d)(9) — All parties have stipulated to this requested continuance.
6 All parties have stipulated to this 189-day trial continuance to June 14, 2021.
7 g. CRC Rule 3.1332(d)(10)-(11) — The interests of justice and other factors suggest
8 that a trial continuance is appropriate and warranted.
9 The interests of justice warrant a continuance here. Defendants’ counsel is in the process of
10 withdrawing representation from the lead Defendant, Mr. Dixon due to his refusal to cooperate and
11 speak with his attorneys. Mr. Dixon’s lack of cooperation combined with the sudden onset of the
12 COVID-19 pandemic has resulted in extraordinary circumstances resulting in a delay in completing
13 key depositions and discovery, thereby affecting Defendants’ ability to file a Motion for Summary
14 Judgment and/or Summary Adjudication. Moreover, the unavailability of Defendants’ lead trial
15 counsel on December 7, 2020 due to a trial scheduled in Los Angeles Superior Court also weighs in
16 favor of a continuance.
17 Finally, the parties still have substantial discovery to engage in and are assessing the ability the
18 informally resolve this case prior to trial. Defendants’ Bayview and Blanding Trust 2011 remain willing
19 to engage in private mediation in an attempt to resolve this case after completion of the discovery.
20 Thus, this matter should be continued.
21 V. PROPER EX PARTE NOTICE WAS PROVIDED TO PLAINTIFF.
22 Proper ex parte notice was provided. Specifically, on August 19, 2020, Plaintiff and
23 Defendant's counsel exchanged emails discussing mutually bringing this application on August 19,
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2020. [Pradhan Decl, ¶ 26]. Both parties have stipulated to this request and no party will object to this
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requested continuance. The parties intend on appearing at this ex parte via CourtCall.
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27 VI. CONCLUSION
28 Based on the foregoing, Defendants’ application to continue trial should be granted.
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MPA ISO EX PARTE APPLICATION TO CONTINUE THE DECEMBER 7, 2020 TRIAL DATE
1 Respectfully submitted,
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3 Dated: August 19, 2020 KAUFMAN DOLOWICH VOLUCK, LLP
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5 By: /s/Kartikey A. Pradhan
6 Tad A. Devlin
Kartikey A. Pradhan
7 Attorneys for Defendants
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MPA ISO EX PARTE APPLICATION TO CONTINUE THE DECEMBER 7, 2020 TRIAL DATE
Preview
1 KAUFMAN DOLOWICH & VOLUCK, LLP TAD A. DEVLIN (SBN 190355) 2 KARTIKEY A. PRADHAN (SBN 291870) 425 California Street, Suite 2100 ELECTRONICALLY 3 San Francisco, California 94104 Telephone: (415) 926-7600 FILED Facsimile: (415) 926-7601 Superior Court of California, 4 County of San Francisco 5 Attorneys for Defendants 08/19/2020 BAYVIEW PROPERTY MANAGERS, INC. Clerk of the Court BY: RONNIE OTERO 6 JAMES RODERICK BLANDING TRUST 2011 Deputy Clerk AND FREDERICK JEROME DIXON 7 8 SUPERIOR COURT OF CALIFORNIA 9 COUNTY OF SAN FRANCISCO 10 11 MARLON KITTLES, Case No.: CGC-19-577737 Complaint Filed: June 18, 2019 12 Plaintiff, Trial Date: December 7, 2020 13 v. 14 FREDERICK JEROME DIXON; BAY VIEW DEFENDANTS MEMORANDUM OF PROPERTY MANAGERS, INC. JAMES POINTS AND AUTHORITIES IN 15 RODERICK BLANDING 2011 TRUST; AND SUPPORT OF THEIR EX PARTE DOES 1 TO 50, APPLICATION TO CONTINUE THE 16 DECEMBER 7, 2020 TRIAL DATE Defendants. 17 Date: August 20, 2020 18 Time: 11:00 a.m. Dept.: 206 19 Judge: Hon. Garrett Wong 20 21 22 23 24 25 26 27 28 -1- MPA ISO EX PARTE APPLICATION TO CONTINUE THE DECEMBER 7, 2020 TRIAL DATE 1 MEMORANDUM OF POINTS AND AUTHORITIES 2 I. INTRODUCTION. 3 This Court should grant this application to continue the trial date by 189 days, to June 14, 4 2021, or a date thereafter, for good cause based on several grounds. The parties have stipulated to 5 the requested continuance and have mutually agreed to a 189-day trial continuance to June 14, 2020, 6 or a date convenient to the Court. 7 Kaufman, Dolowich & Voluck LLP (“KDV”) is in the process withdrawing as counsel for 8 Defendant Frederick Jerome Dixon (“Dixon” or “Mr. Dixon”) due to a breakdown in the attorney- 9 client relationship. Considering, Plaintiff Marlon Kittles claims against Defendants’ revolve around 10 Mr. Dixon’s actions on February 8, 2018, he is a critical witness in this matter and his testimony and 11 cooperation are essential for the ultimate adjudication of this matter. However, all attempts at trying 12 to contact Mr. Dixon have failed and it appears that he is refusing to speak to his attorneys. 13 Mr. Dixon’s refusal to cooperate, combined with the sudden onset of COVID-19 has severely 14 affected the parties’ ability to conduct discovery. Defendants’ had last scheduled to take Plaintiff’s 15 deposition on March 30, 2020, which could not proceed, and discovery served on Mr. Dixon has still 16 not been responded to, because counsel has been unable to speak to him. 17 Moreover, Defendants Bayview Property Managers, Inc. (“Bayview”) and James Roderick 18 Blanding Trust 2011 (“Blanding Trust”) intend to file a Motion for Summary Judgment and/or 19 Summary Adjudication, presently due on August 21, 2020. However, their inability to depose 20 Plaintiff and Mr. Dixon’s refusal to speak to counsel has made it unreasonably difficult for 21 Defendants to assemble the evidence needed to file the motion. To note, Defendants’ lead trial 22 counsel, Tad A. Devlin, is also unavailable on December 7, 2021 due to a trial in Los Angeles 23 Superior Court, case number BC620133. 24 Finally, the parties intend to actively engage in further written and deposition discovery and 25 assessing the possibility of an informal resolution. No party will be prejudiced by the granting of this 26 application and this is the first requested continuance of the trial in this matter. However, both parties 27 will be severely prejudiced if this application is not granted. 28 -2- MPA ISO EX PARTE APPLICATION TO CONTINUE THE DECEMBER 7, 2020 TRIAL DATE 1 II. ABILITY FOR THIS COURT TO GRANT THIS APPLICATION. 2 This Court may hear and grant this application pursuant to California Code of Civil Procedure 3 section 1005(b), which provides that a "court, or a judge thereof, may prescribe a shorter time" than 4 otherwise prescribed for filing and service of motion papers prior to a hearing. Further, California 5 Code of Civil Procedure section 128(a)(8) provides that this Court may amend and control its process 6 and orders to make them conform to law and justice. Moreover, San Francisco Superior Court Local 7 Rule 6(B) provides that a request to continue trial pursuant to a stipulation may be brought on an ex 8 parte basis. 9 Finally, Defendants’ request for a 189-day trial continuance to June 14, 2021, or a date 10 thereafter, is authorized pursuant to California Rules of Court, Rule 3.1332(c) and supported by the 11 factors of subsection (d) (d)(1), (2), (4), (5) and (9)-(11). 12 III. FACTS RELATING TO THIS REQUEST 13 Plaintiff filed the Complaint on June 18, 2019. [Declaration of Kartikey A. Pradhan, ¶ 1]. 14 Defendant retained KDV to defend this action on October 3, 2019. [Pradhan Decl., ¶ 2]. Plaintiff 15 alleges that he was physically attacked by Defendant Dixon on February 8, 2018. [Pradhan Decl., ¶ 16 3]. Defendants’ filed an Answer on October 11, 2019. [Pradhan Decl., ¶ 4]. Since retention, the 17 parties have engaged in written discovery and are in the process of scheduling depositions for 18 several different witnesses including named Plaintiff and Defendants. [Pradhan Decl., ¶ 5, 6, 7]. 19 Defendant Dixon’s counsel last spoke to him around November 2019 and has been attempting to 20 contact him since March 2020. [Pradhan Decl., ¶ 8]. Defendant Dixon was under criminal 21 proceedings for this matter and his counsel was waiting for Defendant Dixon to contact him after 22 his criminal proceedings were over. [Pradhan Decl., ¶ 9]. Counsel has attempted to contact Mr. 23 Dixon to speak to him regarding the incident, including preparing responses to discovery served on 24 him by Plaintiff and discuss payment of fees and costs, with no success. [Pradhan Decl., ¶ 10]. 25 Counsel has called and left messages for Mr. Dixon at his phone number and has not received a 26 response. [Pradhan Decl., ¶ 11]. Counsel has attempted to contact him through his previous 27 employer and landlord, Roderick Blanding, at his current address. [Pradhan Decl., ¶ 12, 13]. 28 Counsel sent him a letter via certified mail advising that the Firm will be withdrawing from his -3- MPA ISO EX PARTE APPLICATION TO CONTINUE THE DECEMBER 7, 2020 TRIAL DATE 1 representation because of his refusal to return his calls. [Pradhan Decl., ¶ 14]. The letter advises 2 Mr. Dixon of the pending discovery and the trial date and advises him to retain counsel at the 3 earliest. Id. 4 USPS was initially unable to deliver the certified mail therefore counsel rescheduled 5 delivery and also sent it via regular mail. [Pradhan Decl., ¶ 15, 16]. Mr. Dixon’s refusal to speak 6 to counsel has rendered it unreasonably difficult to carry out the representation effectively. [Pradhan 7 Decl., ¶ 17]. 8 The sudden onset of the COVID-19 pandemic has substantially delayed depositions in this 9 matter because the Parties intend to take the depositions of key witnesses in person. [Pradhan Decl., 10 ¶ 18]. Moreover, without taking the key depositions, Defendants Bayview and Blanding Trust 2011 11 are unable to prepare and file their Motion for Summary Judgment/Summary Adjudication, 12 presently due on August 21, 2020. [Pradhan Decl., ¶ 19]. The lead trial counsel, Tad A. Devlin, is 13 set for another trial at Los Angeles Superior Court case number BC620133 on December 7, 2020. 14 The parties also intend to attempt mediation after completion of discovery, including key 15 depositions, which have been substantially delayed due to the pandemic. In the interest of a mutual 16 resolution, the parties have agreed that is in their mutual interest to continue the trial for 180-days 17 or a date thereafter based on the Court’s docket, and have stipulated to continue the trial date. 18 [Pradhan Decl., ¶ 20, 21]. 19 The action is presently set for trial on December 7, 2020 and there have been no prior trial 20 continuances. [Pradhan Decl., ¶ 22]. 21 Therefore, Defendants’ request the Court to grant this application and continue the trial date 22 by 180 days or a date thereafter, based on the Court’s availability. 23 IV. THIS COURT SHOULD GRANT THE PARTIES’ FOR A TRIAL 24 CONTINUANCE. 25 Defendants’ application should be granted because good cause exists for the continuance of 26 trial and both parties have stipulated to the request. Furthermore, a continuance of trial will serve the 27 interests of fairness for the parties, by ensuring that they are adequately represented at trial and receive 28 their day in court. -4- MPA ISO EX PARTE APPLICATION TO CONTINUE THE DECEMBER 7, 2020 TRIAL DATE 1 A. Legal Standard. 2 Trial courts have inherent authority granted to them by the California Constitution, Art. 3 VI § 1 to control their own dockets and the proceedings before them. Freiberg v. Superior Court 4 (1995) 33 Cal.App.4th 1484, 1489 ("Trial courts generally have the inherent power to stay 5 proceedings in the interests of justice and to promote judicial efficiency"). More specifically, trial 6 courts may grant a continuance of the trial date for "good cause." Cal. Rules of Court ("CRC"), Rule 7 3.1332(b); see also Eastwood v. Froehlich, (1976) 60 Cal.App.3d 523, 529 (a motion to continue the 8 trial date is "addressed to the sound discretion of the court"); People ex rel. Dept. Pub. Wks. v. Busick, 9 (1968) 259 Cal.App.2d 744, 749 (noting that "all such motions are addressed to the sound discretion 10 of the court"). 11 California courts frequently address the good cause concept. See, e.g., Waters v. Superior 12 Court, (1962) 58 Ca1.2d 885, 893; Laraway v. Sutro, Co., (2002) 96 Cal.App.4th 266, 274 (noting that 13 it is "not unusual" for statutes containing a good cause requirement to leave the term undefined and, 14 thus, "[i]t usually falls to the courts to establish the boundaries of good cause"); American Contract 15 Services v. Allied Mold & Die, Inc., (2001) 94 Cal.App.4th 854, 862. In Waters, the California Supreme 16 Court generally explained that "the concept of good cause should not be enshrined in legal formation; 17 it calls for a factual exposition of a reasonable ground for the sought order. Waters, 58 Ca1.2d at 893; 18 see also Laraway, 96 Cal.App.4th at 274 (explaining that "[i]n determining the meaning of 'good cause' 19 in a particular context, the courts utilize common sense based upon the totality of the circumstances," 20 including "the purpose of the underlying statutory scheme"); American Contract Services, 94 21 Ca1.App.4th at 862 (explaining that "the concept of good cause is 'relative'; its existence depends on 22 the particular circumstances of each case" and essentially, any matter that has a bearing on the issues 23 at hand may be considered"). 24 In other words, this Court has full discretion in granting a trial continuance and should analyze 25 the facts to determine if good cause exists for such a continuance. As shown below, California Rules 26 of Court Rule 3.1332 provides the guiding factors to determine if a good cause exists for a continuance. 27 Here, it is clear that these factors weigh in favor of this Court granting Defendants’ Application for a 28 Trial Continuance. -5- MPA ISO EX PARTE APPLICATION TO CONTINUE THE DECEMBER 7, 2020 TRIAL DATE 1 B. Good Cause Exists For A Continuance Under California Rules of Court, Rule 2 3.1332. 3 Defendants’ application for a trial continuance should be granted based on good 4 cause, because the factors upon which a trial court should base its decision favor a continuance. 5 California Rules of Court, Rule 3.1332 states: 6 A party seeking a continuance of the date set for trial, whether contested or uncontested or stipulated to by the parties, must make the request for a continuance 7 by a noticed motion or an ex parte application under the rules in chapter 4 of this division, with supporting declarations. 8 CRC Rule 3.1332(c) sets forth several circumstances indicate good cause for a trial 9 continuance, including the following which is relevant to this application: 10 (2) The unavailability of a party because of death, illness, or other 11 excusable circumstances; 12 (3) The unavailability of trial counsel because of death, illness, or other excusable circumstances; 13 (4) The substitution of trial counsel, but only where there is an affirmative 14 showing that the substitution is required in the interest of justice; (6) A party’s excused inability to obtain essential testimony, documents, or 15 other material evidence despite diligent efforts; or 16 (7) A significant, unanticipated change in the status of the case as a result of which the case is not ready for trial. 17 Further, under CRC Rule 3.1332(d), "[i]n ruling on a motion or application for continuance, 18 the court must consider all the facts and circumstances that are relevant to the determination." CRC 19 Rule 3.1332(d) sets forth several such factors, which the Parties believes weigh in favor of a trial 20 continuance, including: 21 (1) The proximity of the trial date; 22 (2) Whether there was any previous continuance, extension of time, or delay of 23 trial due to any party; 24 (3) The length of the continuance requested; 25 (4) The availability of alternative means to address the problem that gave rise to 26 the motion or application for a continuance; 27 (5) The prejudice that parties or witnesses will suffer as a result of the 28 continuance; -6- MPA ISO EX PARTE APPLICATION TO CONTINUE THE DECEMBER 7, 2020 TRIAL DATE 1 (6) If the case is entitled to a preferential trial setting, the reasons for that status 2 and whether the need for a continuance 3 (7) The court’s calendar and the impact of granting a continuance on other 4 pending trials; 5 (8) Whether trial counsel is engaged in another trial; 6 (9) Whether all parties have stipulated to a continuance; 7 (10) Whether the interests of justice are best served by a continuance, by the trial of 8 the matter, or by imposing conditions on the continuance. 9 (11) Any other fact or circumstance relevant to the fair determination of the 10 motion or application. Cal. Rules of Court, Rule 3.1332(d)(1)-(11). As shown below, majority of these factors cut in favor 11 12 of granting the Parties' trial continuance. 13 1. CRC Rule 3.1332(c) provides the circumstance for why this trial should be 14 continued. 15 CRC Rule 3.1332(c) provides specific circumstances for finding good cause to continue 16 trial, specifically, the unavailability of a party due to an excusable circumstance; the unavailability 17 of trial counsel because of an excusable circumstance; the substitution of a trial counsel based on 18 an affirmative showing that substitution is required in the interests of justice; a party’s excused 19 inability to obtain essential testimony, documents, or other material evidence despite diligent 20 efforts; and a significant unanticipated change in the status of the case as a result of which the 21 case is not ready for trial. Pursuant to the guiding principles of Cal. Rules of Court, Rule 22 3.1332(c), the specific circumstances present here are: Defendants’ counsel withdrawing 23 representation for the lead Defendant, Mr. Dixon due to Mr. Dixon’s refusal to speak to counsel; 24 the parties’ inability to take key depositions and obtain essential testimony from Plaintiff Marion Kittles and Defendant Dixon due to Mr. Dixon’s refusal to cooperate and the sudden onset of the 25 COVID-19 pandemic; counsel’s inability to speak to Mr. Dixon to discuss the facts of the case 26 and respond to discovery on his behalf and unavailability of trial counsel on December 7, 2020 27 due to trial in Los Angeles Superior Court case number BC620133. 28 -7- MPA ISO EX PARTE APPLICATION TO CONTINUE THE DECEMBER 7, 2020 TRIAL DATE 1 If this Court decides to grant the continuance, neither party will be prejudiced. In fact, a 2 continuance of trial would promote judicial economy and justice, as it will allow all parties to be 3 fully represented and ensure that the parties get their fair day in court. 4 2. CRC Rule 3.1332(d) provides factors this Court should consider when determining if good cause exists to continue trial. 5 In addition to the circumstances set forth by CRC Rule 3.1332(c) regarding good cause, 6 CRC Rule 3.1332(d) also provides several factors for this Court to consider to help further this 7 determination. The Parties believe that all relevant factors weigh in the favor of continuance, 8 specifically CRC Rule 3.1332(d)(1), (2), (4), (5) and (9)-(11). Therefore, after analyzing these 9 factors, the Court should find that good cause exists to continue this trial. 10 a. CRC Rule 3.1332(d)(1) — Trial is still 4 months away. 11 Trial is still four months away in this matter, such that this Court can make adequate use of 12 the open space created by the continued trial. 13 b. CRC Rule 3.1332(d)(2) — There have been no previous continuances of trial in 14 this case. 15 There have been no previous continuances of trial or any delay in this litigation for that matter. 16 If the Court does not grant a continuance, the parties will be heavily prejudiced because they would not 17 be adequately represented by trial. Thus, good cause exists for this continuance. 18 c. CRC Rule 3.1332(d)(4) — There are no other means to resolve the issue. 19 There are no other reasonable alternative means to address the primary issue necessitating this 20 trial continuance: namely that Mr. Dixon’s refusal to cooperate with counsel which is necessitating 21 withdrawal of representation and the onset of the COVID-19 pandemic which as caused substantial 22 and unreasonable delay in completing discovery. A trial continuance is the only option to allow the 23 parties' trial counsel to prepare this matter for trial and to allow Mr. Dixon to obtain adequate 24 representation. 25 d. CRC Rule 3.1332(d)(5) — No parties will be prejudiced by a continuance. 26 Here, no parties will be prejudiced by this continuance as both parties have actually 27 stipulated to this continuance. 28 -8- MPA ISO EX PARTE APPLICATION TO CONTINUE THE DECEMBER 7, 2020 TRIAL DATE 1 e. CRC Rule 3.1332(d)(8) — Trial counsel is engaged in another trial no December 2 7, 2020 3 Here, the lead trial counsel, Tad A. Devlin has a trial scheduled on December 7, 2020 4 in Los Angeles Superior Court, case number BC620133. 5 f. CRC Rule 3.1332(d)(9) — All parties have stipulated to this requested continuance. 6 All parties have stipulated to this 189-day trial continuance to June 14, 2021. 7 g. CRC Rule 3.1332(d)(10)-(11) — The interests of justice and other factors suggest 8 that a trial continuance is appropriate and warranted. 9 The interests of justice warrant a continuance here. Defendants’ counsel is in the process of 10 withdrawing representation from the lead Defendant, Mr. Dixon due to his refusal to cooperate and 11 speak with his attorneys. Mr. Dixon’s lack of cooperation combined with the sudden onset of the 12 COVID-19 pandemic has resulted in extraordinary circumstances resulting in a delay in completing 13 key depositions and discovery, thereby affecting Defendants’ ability to file a Motion for Summary 14 Judgment and/or Summary Adjudication. Moreover, the unavailability of Defendants’ lead trial 15 counsel on December 7, 2020 due to a trial scheduled in Los Angeles Superior Court also weighs in 16 favor of a continuance. 17 Finally, the parties still have substantial discovery to engage in and are assessing the ability the 18 informally resolve this case prior to trial. Defendants’ Bayview and Blanding Trust 2011 remain willing 19 to engage in private mediation in an attempt to resolve this case after completion of the discovery. 20 Thus, this matter should be continued. 21 V. PROPER EX PARTE NOTICE WAS PROVIDED TO PLAINTIFF. 22 Proper ex parte notice was provided. Specifically, on August 19, 2020, Plaintiff and 23 Defendant's counsel exchanged emails discussing mutually bringing this application on August 19, 24 2020. [Pradhan Decl, ¶ 26]. Both parties have stipulated to this request and no party will object to this 25 requested continuance. The parties intend on appearing at this ex parte via CourtCall. 26 27 VI. CONCLUSION 28 Based on the foregoing, Defendants’ application to continue trial should be granted. -9- MPA ISO EX PARTE APPLICATION TO CONTINUE THE DECEMBER 7, 2020 TRIAL DATE 1 Respectfully submitted, 2 3 Dated: August 19, 2020 KAUFMAN DOLOWICH VOLUCK, LLP 4 5 By: /s/Kartikey A. Pradhan 6 Tad A. Devlin Kartikey A. Pradhan 7 Attorneys for Defendants 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 10 - MPA ISO EX PARTE APPLICATION TO CONTINUE THE DECEMBER 7, 2020 TRIAL DATE