Preview
1 Tara Macomber, SBN 264725
OPEN DOOR LEGAL
2 60 Ocean Avenue
San Francisco, CA 94112 ELECTRONICALLY
3 Tel. (415) 323-0946 F I L E D
Superior Court of California,
tara@opendoorlegal.org County of San Francisco
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10/30/2020
5 Clerk of the Court
Attorney for Plaintiff BY: EDNALEEN ALEGRE
Timothy Bonnici Deputy Clerk
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SUPERIOR COURT OF THE STATE OF CALIFORNIA
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IN AND FOR THE COUNTY SAN FRANCISCO
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UNLIMITED JURISDICTION
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Timothy Bonnici, an individual, Case No.: CGC-17557688
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12 NOTICE OF MOTION AND
Plaintiff MOTION TO SET TRIAL DATE;
13 MEMORANDUM IN SUPPORT OF
vs. MOTION
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15 Charles McMackin, an individual, Carroll Date: December 3, 2020
Henry, an individual, and DOES 1 through Time: 9:30 a.m.
16 20, inclusive, Dept: 206
17 Defendants. Judge: Hon. Garrett Wong
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21 To Defendants and their attorney of record:
22 PLAINTIFF HEREBY GIVES NOTICE that on Thursday December 3, 2020 at 9:30 am
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or as soon thereafter as the matter may be heard, in Department 206 of this court, located at 400
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McAllister Street, San Francisco, PLAINTIFF will, and hereby does, move for an order to set a
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trial date in this case, to be the same as the trial date in the consolidated case; and for the order to
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27 consolidate this case with CGC-16-553340 to be filed in this case.
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1 This motion is brought pursuant to California Rules of Court, Rule 3.500 and Cal Code
2 Civ Proc 403 and 404.1. As required under these rules, it will promote justice by laying out a
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clear and timely path forward toward the resolution of this case. It will thus promote
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convenience, focus counsels' efforts, promote efficiency, streamline the court calendar, avoid
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duplicative and inconsistent rulings, and increase the opportunity for settlement.
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7 First, the court should set a trial date in this case, because the parties have a right to a
8 timely disposition of the case (Cal Rules of Court Std 2.2). The trial date should be the same as
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in the lead case, because the two cases were consolidated for trial purposes and the parties have
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agreed to the common date. Due to procedural error, this case had never been set for trial in the
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first place, and so was never set for trial after it was consolidated; this motion would correct that.
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13 Second, the court should file the order to consolidate, which was already filed in the lead
14 case, in this case too. An order granting a motion to consolidate must be filed in each case
15 sought to be consolidated (California Rules of Court 3.350(C) (c)). Due to procedural error, the
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order was never filed in this case; this motion would correct that.
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This motion will be based on the notice of motion, the memorandum set forth below, the
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19 records and file herein, and any evidence that may be presented at the hearing of the motion.
20 Dated October 30, 2020 Respectfully Submitted,
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________________________
23 Tara Macomber
OPEN DOOR LEGAL
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1 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION
2 I. INTRODUCTION.
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Plaintiff Timothy Bonnici, through his counsel, Tara Macomber, hereby moves for an
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order to set a trial date in this case and to set it for January 25, 2021, the same as the trial date
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already set for the consolidated case, CGC-16-553340; and the order to consolidate this case
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7 with CGC-16-553340 to be filed in this case, to align it with the order to consolidate that was
8 already filed in CGC-16-553340. The case, which was filed on March 23, 2017 and consolidated
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with its sister case for trial purposes only on January 16, 2020, was erroneously never set for
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trial. We bring this motion to ask the court to set the trial date as to promote judicial expediency
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and to set it on January 25, 2021 so it may be heard with its consolidated case.
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13 II. PROCEDURAL BACKGROUND
14 On March 23, 2017, Plaintiff's attorney filed this case, and on October 30, 2018, he filed
15 the First Amended Complaint. On May 14, 2019, Plaintiff's attorney was relieved as counsel. On
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October 31, 2019, Plaintiff in Pro Per filed the Second Amended Complaint. On November 20,
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2019, Plaintiff's attorney Tara Macomber substituted for pro per as attorney for the Plaintiff.
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19 On December 11, 2019, Plaintiff's attorney filed a Motion to Consolidate this case with
20 CGC 16-553340. On January 16, 2020, the court issued an order to consolidate the present case
21 with CGC16-553340, for trial purposes only.
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On August 12, 2020, Plaintiff's attorney filed an ex parte application to continue trial for
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both cases from August 24, 2020, to January 25, 2021. However, due to an oversight, a trial date
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25 in this case had never been set in this matter. The parties stipulated to the continuance of the trial
26 date in both actions to January 25, 2021. Notice of the ex parte application for both cases was
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1 provided to counsel for Defendants Charles McMackin and Carroll Henry, and counsel did not
2 oppose the application.
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On August 13, 2020, the court issued an order to continue the trial date in CGC-16-
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553340 to January 25, 2021. The court could not issue an order to continue the present case as it
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erroneously had not been previously set. The clerk then instructed counsel to bring a noticed
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7 motion for the court to set the trial date in this matter.
8 III. ARGUMENT
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a. THE COURT SHOULD SET A TRIAL DATE IN THIS CASE,
10 BECAUSE PARTIES HAVE A RIGHT TO A TIMELY DISPOSITION
OF THE CASE.
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Under California Rules of Court 3.729, in setting a case for trial, the court must consider,
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13 among other factors, the achievement of a timely disposition of the case. Under California Rules
14 of Courts, Standard 2.2, "the goal of each trial court should be to process general civil cases so
15 that all cases are disposed of within two years of filing," a standard intended to "improve the
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administration of justice by encouraging prompt disposition of all matters coming before the
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courts."
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19 On January 16, 2020, the court filed an order to consolidate this case with CGC-16-
20 553340, for trial purposes only. On August 12, 2020, Plaintiff's attorney filed an ex parte
21 application to continue trial for both cases from August 24, 2020, to January 25, 2021.
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Both parties stipulated to a trial date of January 25, 2021, for both cases. However, this
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case had never been set for trial in the first place, nor was it ever set for trial after it was
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25 consolidated with the lead case. The court must now set a trial date in this case, in order to
26 achieve a timely disposition of the case and to remain within the two-year standard for setting
27 trial.
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1 b. THE COURT SHOULD SET THE TRIAL DATE IN THIS CASE FOR
JANUARY 25, 2021, THE SAME AS THE TRIAL DATE IN THE
2 CONSOLIDATED CASE, BECAUSE THE COURT CONSOLIDATED
THE TWO CASES FOR THE PURPOSES OF TRIAL.
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4 The purpose of consolidation is to promote trial convenience and economy. Mueller v.
5 J.C. Penny Co. (1985) 173 Cal.App.32 713,722. Trial convenience and economy are promoted
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"by avoiding duplication of procedure, particularly in the proof of issues common to both
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actions…" Wouldridge v. Burns (1968) 265 Cal.App.2d 82, 86.
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In setting a case for trial, the court must consider, among other factors, the trial date
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10 proposed by the parties and their attorneys; the achievement of a timely and efficient disposition
11 of the case; as well as any other factor that would significantly affect the determination of the
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appropriate date. California Rules of Court 3.729.
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On January 16, 2020, the court consolidated this case with CGC-16-553340 for trial
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purposes only. A trial date of January 25, 2021 for both cases was proposed by the Plaintiff's
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16 attorney and agreed to by the Defendants' attorney; the parties stipulated to the date in both
17 actions. The court filed an order to continue the trial date in CGC 16-553340, to January 25,
18 2021.
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Setting a January 25, 2021, trial date for this case, the same trial date as for the lead case,
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would achieve timely and efficient disposition, because the two consolidated cases could be
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22 heard in the same proceeding. This would be a more efficient use of scarce court human
23 resources and a more efficient use of Plaintiff's limited financial resources. Both cases are
24 already set for the same judicial mediation meeting on September 29, 2020.
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Allowing trial of the actions to occur together will promote efficiency by avoiding
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unnecessary costs to the court and to the parties and avoiding duplication of procedure. It will
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28 promote fairness in allowing the parties in the consolidated cases the same time constraints and
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1 will also avoid burdening the Plaintiff, who has limited resources, with unnecessary financial and
2 emotional costs.
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The court should set the same trial date for this case as for the lead case, January 25,
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2021, because the court consolidated the cases precisely for the purpose of trial. The date was
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agreed to by the parties, it would achieve a fair and efficient disposition of the case, and it would
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7 harmonize with the existing mediation date for both cases.
8 c. THE COURT SHOULD FILE AN ORDER TO CONSOLIDATE IN
THIS CASE, BECAUSE THE COURT FILED AN ORDER TO
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CONSOLIDATE IN THE LEAD CASE.
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Under California Rules of Court, Rule 3.350(C) (c), an order granting a motion to
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consolidate must be filed in each case sought to be consolidated. On December 11, 2019,
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13 Plaintiff's attorney filed motions to consolidate in this case and in CGC16-553340. On January
14 16, 2020, the court filed an order to consolidate for trial purposes in the lead case, CGC16-
15 553340.
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If the court sets a trial date in this case as requested herein, the court should file an order to
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consolidate for trial purposes in this case, because an order to consolidate has already been filed
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19 in the lead case.
20 IV. CONCLUSION
21 For these reasons, the court should grant this motion to set a trial date, and to set the trial
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date to January 25, 2021, the same as the trial date in the consolidated case; and to file the order
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to consolidate in this case.
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25 Dated October 30, 2020 Respectfully Submitted,
26 _________________________
Tara Macomber
27 OPEN DOOR LEGAL
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Preview
1 Tara Macomber, SBN 264725 OPEN DOOR LEGAL 2 60 Ocean Avenue San Francisco, CA 94112 ELECTRONICALLY 3 Tel. (415) 323-0946 F I L E D Superior Court of California, tara@opendoorlegal.org County of San Francisco 4 10/30/2020 5 Clerk of the Court Attorney for Plaintiff BY: EDNALEEN ALEGRE Timothy Bonnici Deputy Clerk 6 SUPERIOR COURT OF THE STATE OF CALIFORNIA 7 IN AND FOR THE COUNTY SAN FRANCISCO 8 UNLIMITED JURISDICTION 9 10 Timothy Bonnici, an individual, Case No.: CGC-17557688 11 12 NOTICE OF MOTION AND Plaintiff MOTION TO SET TRIAL DATE; 13 MEMORANDUM IN SUPPORT OF vs. MOTION 14 15 Charles McMackin, an individual, Carroll Date: December 3, 2020 Henry, an individual, and DOES 1 through Time: 9:30 a.m. 16 20, inclusive, Dept: 206 17 Defendants. Judge: Hon. Garrett Wong 18 19 20 21 To Defendants and their attorney of record: 22 PLAINTIFF HEREBY GIVES NOTICE that on Thursday December 3, 2020 at 9:30 am 23 or as soon thereafter as the matter may be heard, in Department 206 of this court, located at 400 24 McAllister Street, San Francisco, PLAINTIFF will, and hereby does, move for an order to set a 25 trial date in this case, to be the same as the trial date in the consolidated case; and for the order to 26 27 consolidate this case with CGC-16-553340 to be filed in this case. 28 0 1 This motion is brought pursuant to California Rules of Court, Rule 3.500 and Cal Code 2 Civ Proc 403 and 404.1. As required under these rules, it will promote justice by laying out a 3 clear and timely path forward toward the resolution of this case. It will thus promote 4 convenience, focus counsels' efforts, promote efficiency, streamline the court calendar, avoid 5 duplicative and inconsistent rulings, and increase the opportunity for settlement. 6 7 First, the court should set a trial date in this case, because the parties have a right to a 8 timely disposition of the case (Cal Rules of Court Std 2.2). The trial date should be the same as 9 in the lead case, because the two cases were consolidated for trial purposes and the parties have 10 agreed to the common date. Due to procedural error, this case had never been set for trial in the 11 first place, and so was never set for trial after it was consolidated; this motion would correct that. 12 13 Second, the court should file the order to consolidate, which was already filed in the lead 14 case, in this case too. An order granting a motion to consolidate must be filed in each case 15 sought to be consolidated (California Rules of Court 3.350(C) (c)). Due to procedural error, the 16 order was never filed in this case; this motion would correct that. 17 This motion will be based on the notice of motion, the memorandum set forth below, the 18 19 records and file herein, and any evidence that may be presented at the hearing of the motion. 20 Dated October 30, 2020 Respectfully Submitted, 21 22 ________________________ 23 Tara Macomber OPEN DOOR LEGAL 24 25 26 27 28 1 1 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION 2 I. INTRODUCTION. 3 Plaintiff Timothy Bonnici, through his counsel, Tara Macomber, hereby moves for an 4 order to set a trial date in this case and to set it for January 25, 2021, the same as the trial date 5 already set for the consolidated case, CGC-16-553340; and the order to consolidate this case 6 7 with CGC-16-553340 to be filed in this case, to align it with the order to consolidate that was 8 already filed in CGC-16-553340. The case, which was filed on March 23, 2017 and consolidated 9 with its sister case for trial purposes only on January 16, 2020, was erroneously never set for 10 trial. We bring this motion to ask the court to set the trial date as to promote judicial expediency 11 and to set it on January 25, 2021 so it may be heard with its consolidated case. 12 13 II. PROCEDURAL BACKGROUND 14 On March 23, 2017, Plaintiff's attorney filed this case, and on October 30, 2018, he filed 15 the First Amended Complaint. On May 14, 2019, Plaintiff's attorney was relieved as counsel. On 16 October 31, 2019, Plaintiff in Pro Per filed the Second Amended Complaint. On November 20, 17 2019, Plaintiff's attorney Tara Macomber substituted for pro per as attorney for the Plaintiff. 18 19 On December 11, 2019, Plaintiff's attorney filed a Motion to Consolidate this case with 20 CGC 16-553340. On January 16, 2020, the court issued an order to consolidate the present case 21 with CGC16-553340, for trial purposes only. 22 On August 12, 2020, Plaintiff's attorney filed an ex parte application to continue trial for 23 both cases from August 24, 2020, to January 25, 2021. However, due to an oversight, a trial date 24 25 in this case had never been set in this matter. The parties stipulated to the continuance of the trial 26 date in both actions to January 25, 2021. Notice of the ex parte application for both cases was 27 28 2 1 provided to counsel for Defendants Charles McMackin and Carroll Henry, and counsel did not 2 oppose the application. 3 On August 13, 2020, the court issued an order to continue the trial date in CGC-16- 4 553340 to January 25, 2021. The court could not issue an order to continue the present case as it 5 erroneously had not been previously set. The clerk then instructed counsel to bring a noticed 6 7 motion for the court to set the trial date in this matter. 8 III. ARGUMENT 9 a. THE COURT SHOULD SET A TRIAL DATE IN THIS CASE, 10 BECAUSE PARTIES HAVE A RIGHT TO A TIMELY DISPOSITION OF THE CASE. 11 Under California Rules of Court 3.729, in setting a case for trial, the court must consider, 12 13 among other factors, the achievement of a timely disposition of the case. Under California Rules 14 of Courts, Standard 2.2, "the goal of each trial court should be to process general civil cases so 15 that all cases are disposed of within two years of filing," a standard intended to "improve the 16 administration of justice by encouraging prompt disposition of all matters coming before the 17 courts." 18 19 On January 16, 2020, the court filed an order to consolidate this case with CGC-16- 20 553340, for trial purposes only. On August 12, 2020, Plaintiff's attorney filed an ex parte 21 application to continue trial for both cases from August 24, 2020, to January 25, 2021. 22 Both parties stipulated to a trial date of January 25, 2021, for both cases. However, this 23 case had never been set for trial in the first place, nor was it ever set for trial after it was 24 25 consolidated with the lead case. The court must now set a trial date in this case, in order to 26 achieve a timely disposition of the case and to remain within the two-year standard for setting 27 trial. 28 3 1 b. THE COURT SHOULD SET THE TRIAL DATE IN THIS CASE FOR JANUARY 25, 2021, THE SAME AS THE TRIAL DATE IN THE 2 CONSOLIDATED CASE, BECAUSE THE COURT CONSOLIDATED THE TWO CASES FOR THE PURPOSES OF TRIAL. 3 4 The purpose of consolidation is to promote trial convenience and economy. Mueller v. 5 J.C. Penny Co. (1985) 173 Cal.App.32 713,722. Trial convenience and economy are promoted 6 "by avoiding duplication of procedure, particularly in the proof of issues common to both 7 actions…" Wouldridge v. Burns (1968) 265 Cal.App.2d 82, 86. 8 In setting a case for trial, the court must consider, among other factors, the trial date 9 10 proposed by the parties and their attorneys; the achievement of a timely and efficient disposition 11 of the case; as well as any other factor that would significantly affect the determination of the 12 appropriate date. California Rules of Court 3.729. 13 On January 16, 2020, the court consolidated this case with CGC-16-553340 for trial 14 purposes only. A trial date of January 25, 2021 for both cases was proposed by the Plaintiff's 15 16 attorney and agreed to by the Defendants' attorney; the parties stipulated to the date in both 17 actions. The court filed an order to continue the trial date in CGC 16-553340, to January 25, 18 2021. 19 Setting a January 25, 2021, trial date for this case, the same trial date as for the lead case, 20 would achieve timely and efficient disposition, because the two consolidated cases could be 21 22 heard in the same proceeding. This would be a more efficient use of scarce court human 23 resources and a more efficient use of Plaintiff's limited financial resources. Both cases are 24 already set for the same judicial mediation meeting on September 29, 2020. 25 Allowing trial of the actions to occur together will promote efficiency by avoiding 26 unnecessary costs to the court and to the parties and avoiding duplication of procedure. It will 27 28 promote fairness in allowing the parties in the consolidated cases the same time constraints and 4 1 will also avoid burdening the Plaintiff, who has limited resources, with unnecessary financial and 2 emotional costs. 3 The court should set the same trial date for this case as for the lead case, January 25, 4 2021, because the court consolidated the cases precisely for the purpose of trial. The date was 5 agreed to by the parties, it would achieve a fair and efficient disposition of the case, and it would 6 7 harmonize with the existing mediation date for both cases. 8 c. THE COURT SHOULD FILE AN ORDER TO CONSOLIDATE IN THIS CASE, BECAUSE THE COURT FILED AN ORDER TO 9 CONSOLIDATE IN THE LEAD CASE. 10 Under California Rules of Court, Rule 3.350(C) (c), an order granting a motion to 11 consolidate must be filed in each case sought to be consolidated. On December 11, 2019, 12 13 Plaintiff's attorney filed motions to consolidate in this case and in CGC16-553340. On January 14 16, 2020, the court filed an order to consolidate for trial purposes in the lead case, CGC16- 15 553340. 16 If the court sets a trial date in this case as requested herein, the court should file an order to 17 consolidate for trial purposes in this case, because an order to consolidate has already been filed 18 19 in the lead case. 20 IV. CONCLUSION 21 For these reasons, the court should grant this motion to set a trial date, and to set the trial 22 date to January 25, 2021, the same as the trial date in the consolidated case; and to file the order 23 to consolidate in this case. 24 25 Dated October 30, 2020 Respectfully Submitted, 26 _________________________ Tara Macomber 27 OPEN DOOR LEGAL 28 5