Preview
1 | DAVIN R. BACHO (SBN 282613)
CLEMENT, FITZPATRICK & KENWORTHY
2 | 3333 Mendocino Avenue, Suite 200
Santa Rosa, CA 95403
3 Telephone: (707) 523-1181
4 || Facsimile: (707) 546-1360
dbacho@cfk.com
5
Attorneys for Plaintiffs & Cross-Defendants
6 | Barry Brilliant and Dagmar K. Hoheneck-Smith
7
g SUPERIOR COURT OF THE STATE OF CALIFORNIA
9 COUNTY OF SONOMA
10 | BARRY BRILLIANT, an individual; and Case No. SCV-267406
DAGMAR K. HOHENECK-SMITH, an
11 | individual and as trustee of THE DAGMAR
2 HOHENECK-SMITH TRUST dated PLAINTIFFS’ EX PARTE
December 14, 2010, APPLICATION FOR LEAVE TO FILE
13 ye THE AMENDMENT TO THE FIRST
Plaintiffs, AMENDED COMPLAINT TO
14 SUBSTITUTE TRUE NAME OF DOE
vs. DEFENDANT
15 | MITCHELL G. BLACK, an individual and
dba BLACK KNIGHT VINEYARDS; .
16 | DEANNE G. BLACK, an individual and Pate: Seprember 19, 2022
dba BLACK KNIGHT VINEYARDS; and ume: IN AM
17 | DOES ONE through TWENTY, inclusive, Dept: 18
Judge: Hon. Jennifer V. Dollard
18 Defendants.
19 (Unlimited Civil)
20
31 AND RELATED CROSS-ACTIONS
22
23 PLEASE TAKE NOTICE that on September, 15, 2022 at 10:30 a.m. or as soon thereafter as
24 || the matter may be heard in Courtroom 18 of the Sonoma County Superior Court, located at 3055
25 || Cleveland Avenue, Santa Rosa, California, Plaintiffs and Cross-Complainants Barry Brilliant and
26 || Dagmar K. Hoheneck-Smith (“Plaintiffs”), through their counsel of record, will move ex parte to the
27 || Court for an order granting Plaintiffs leave to file an amendment to the First Amended Complaint To
28 || substitute the true name of Doe Defendant No. 1.
1
PLAINTIFFS’ EX PARTE APPLICATION TO ALLOW FILING OF THE AMENDMENT TO THE FIRST
AMENDED COMPLAINT TO SUBSTITUTE TRUE NAME OF DOE DEFENDANT
1 The motion will be based on this notice of application, the application, the declaration of
2 || Davin R. Bacho, Esq. as well as on the records and file herein, and on such evidence as may be
3 || presented or considered by the Court.
4 I. INTRODUCTION
a) Plaintiffs seek leave to file the amendment to substitute the true name of Doe Defendant No. 1
6 | as Black Knight Vineyards, LLC pursuant to Civ. Code Proc. §§ 473 and 474. A copy of the
7 || proposed amendment (“Amendment”) is attached as Exhibit A to the Declaration of Davin R. Bacho,
8 | filed herewith. Trial in this matter is scheduled for February 24, 2023. Defendants will incur no
9 || prejudice resulting from the proposed Amendment, by substituting the true names for the fictitious
10 || names wherever they appear in the First Amended Complaint.
11 Il. FACTUAL AND PROCEDURAL HISTORY
12 Plaintiffs filed the original Complaint in this matter on November 19, 2020. (Declaration of
13 || Davin R. Bacho (“Decl. of Bacho” at 4.) Thereafter, on January 20, 2022, Plaintiffs filed the First
14 || Amended Complaint pursuant to the Stipulation and Order filed on January 12, 2022. (Decl. of Bacho
15 | at 95.) On February 24, 2022 counsel for the Defendants, including Black Knight Vineyards, LLC,
16 || filed a Cross-Complaint against the Plaintiffs and atthat time counsel for the Plaintiffs became aware
17 || of Black Knight Vineyards, LLC who is currently a party to this litigation. (Decl. Bacho at §6.)
18 In March 2022, the Parties agreed to mediate the case. The parties also agreed to an open
19 || extension to the discovery propounded on the Defendants, filing of the Amendment, and Plaintiffs
20 || answer to the Cross-Complaint until after the mediation in an effort to focus on settlement. (Decl. of
21 || Bacho at 710.) The parties mediated the case on June 22, 2022 and continued settlement discussions
22 || through September 12, 2022. (Decl. of Bacho at 11.)
23 On August 29, 2022, counsel for Plaintiffs sent counsel for Defendants, Mitchell Greenberg, a
24 || Stipulation and Proposed Order to Allow the filing of the Amendment. (Decl. of Bacho at 412.) This
25 || was ignored. Counsel for Plaintiffs followed up seeking the stipulation which was never executed.
26 On September 14, 2021, counsel for Plaintiffs emailed Mr. Greenberg to provide notice of this
27 || ex parte motion. (Decl. of Bacho at 913 and Exhibit B)
28
PLAINTIFFS’ EX PARTE APPLICATION TO ALLOW FILING OF THE AMENDMENT TO THE FIRST
AMENDED COMPLAINT TO SUBSTITUTE TRUE NAME OF DOE DEFENDANT
1 Ii. LEGAL ARGUMENT
2 A. GOOD CAUSE EXISTS TO GRANT THIS MOTION EX PARTE
3 Plaintiffs seek to substitute a Doe No. 1 for Black Knight Vineyards, LLC (“LLC”). The
4 || Defendants’ Property located at 4889 Grange Road was quitclaimed from Mitchell G. Black and
5 | Deanne G. Black, husband and wife as community property, to Black Knight Vineyards, LLC
6 || pursuant to a Quitclaim Deed recorded on February 15, 2022, as Document Number 2022011289,
7 || Sonoma County Records. (Decl. of Bacho at7.) The LLC is already a party to this litigation as a
8 || Cross-Complainant. (Decl. of Bacho at 46.) The LLC and the other Defendants and Cross-
9 | Complainants are currently represented by the same counsel of record. (Decl. of Bacho at 8.)
10 || Defendants will incur no prejudice as Plaintiffs as Mitchell Black isthe managing agent of Black
11 | Knight Vineyards, LLC and Deanne Black is also a member. To this point, the entire membership of
12 | the LLC has been aware of all relevant facts since the inception of litigation and trial isnot scheduled
13 | until February 24, 2023.
14 B. PLAINTIFF’S MOTION FOR LEAVE SHOULD BE GRANTED
15 Pursuant to Cal. Code Civ. Proc., §473(a)(1), “The court may, in furtherance of justice, and on
16 || any terms as may be proper, allow a party to amend any pleading or proceeding by adding or striking
17 | out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any other
18 || respect; and may, upon like terms, enlarge the time for answer or demurrer. The court may likewise, in
19 || its discretion, after notice to the adverse party, allow, upon any terms as may be just, an amendment to
20 || any pleading or proceeding in other particulars; and may upon like terms allow an answer to be made
21 | after the time limited by this code.” (Id.) Cal. Code Civ. Proc., §576 states, “Any judge, at any time
22 | before or after commencement of trial, in the furtherance of justice, and upon such terms as may be
23 || proper, may allow the amendment of any pleading or pretrial conference order.” “There is a strong
24 | policy in favor of liberal allowance of amendments.” (Mesler v.Bragg Mgmt. Co., (1985).39 Cal.3d
25 || 290, 296; also see Hooper v. Romero (1968) 262 Cal.App.2d 574-580.) The policy of liberality in
26 || granting amendments is so strong that it isa rare case in which denial for leave to amend can be
27 || justified and it is an abuse of discretion to deprive the party of a meritorious cause of action or defense
28 || ifthe motion will not prejudice the opposing party. (Morgan v. Superior Court (1959) 172 Cal.App.2d
PLAINTIFFS’ EX PARTE APPLICATION TO ALLOW FILING OF THE AMENDMENT TO THE FIRST
AMENDED COMPLAINT TO SUBSTITUTE TRUE NAME OF DOE DEFENDANT
1 | 527, 530; Mabie v. Hyatt, supra.)
2 Here, as stated above, trial in this matter is scheduled for February 24, 2023. (Decl. of Bacho
3 | at 714.) Pursuant to this Court’s order continuing the previously scheduled trialdate, discovery
4 | deadlines have been reset in accordance with the new trialdate. (Decl. of Bacho at 14.) As such,
5 || Defendants will have sufficient time and opportunity to conduct discovery prior to trial. Counsel for
6 || Defendants have been notified of the proposed Amendment and have been requested to stipulate for
7 | Plaintiffs filing the Amendment for some time. (Decl. of Bacho at §12.) The LLC is a represented
8 || party itself to this litigation and essentially the alter ego of Mitchell Black and Deanne Black
9 | eliminating any surprise or prejudice. (Decl. of Bacho at9.) On the basis provided above, and in
10 | furtherance of justice, the Court should grant Plaintiffs leave to filethe Amendment.
11 IV. CONCLUSION
12 Based on the foregoing, Plaintiffs respectfully requests that this Court grant thisMotion for
13 || leave to file the Amendment and serve Black Knight Vineyard, LLC as a Defendant.
14 || Dated: September 14, 2022 CLEMENT, FITZPATRICK & KENWORTHY
15 By:
AZ
16 DAVIN R. BACHO
Attorneys for Plaintiffs and Cross-Defendants
17 Barry Brilliant and Dagmar K. Hoheneck-Smith
18
19
20
21
22
23
24
25
26
27
28 .
PLAINTIFFS’ EX PARTE APPLICATION TO ALLOW FILING OF THE AMENDMENT TO THE FIRST
AMENDED COMPLAINT TO SUBSTITUTE TRUE NAME OF DOE DEFENDANT
Preview
1 | DAVIN R. BACHO (SBN 282613) CLEMENT, FITZPATRICK & KENWORTHY 2 | 3333 Mendocino Avenue, Suite 200 Santa Rosa, CA 95403 3 Telephone: (707) 523-1181 4 || Facsimile: (707) 546-1360 dbacho@cfk.com 5 Attorneys for Plaintiffs & Cross-Defendants 6 | Barry Brilliant and Dagmar K. Hoheneck-Smith 7 g SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 COUNTY OF SONOMA 10 | BARRY BRILLIANT, an individual; and Case No. SCV-267406 DAGMAR K. HOHENECK-SMITH, an 11 | individual and as trustee of THE DAGMAR 2 HOHENECK-SMITH TRUST dated PLAINTIFFS’ EX PARTE December 14, 2010, APPLICATION FOR LEAVE TO FILE 13 ye THE AMENDMENT TO THE FIRST Plaintiffs, AMENDED COMPLAINT TO 14 SUBSTITUTE TRUE NAME OF DOE vs. DEFENDANT 15 | MITCHELL G. BLACK, an individual and dba BLACK KNIGHT VINEYARDS; . 16 | DEANNE G. BLACK, an individual and Pate: Seprember 19, 2022 dba BLACK KNIGHT VINEYARDS; and ume: IN AM 17 | DOES ONE through TWENTY, inclusive, Dept: 18 Judge: Hon. Jennifer V. Dollard 18 Defendants. 19 (Unlimited Civil) 20 31 AND RELATED CROSS-ACTIONS 22 23 PLEASE TAKE NOTICE that on September, 15, 2022 at 10:30 a.m. or as soon thereafter as 24 || the matter may be heard in Courtroom 18 of the Sonoma County Superior Court, located at 3055 25 || Cleveland Avenue, Santa Rosa, California, Plaintiffs and Cross-Complainants Barry Brilliant and 26 || Dagmar K. Hoheneck-Smith (“Plaintiffs”), through their counsel of record, will move ex parte to the 27 || Court for an order granting Plaintiffs leave to file an amendment to the First Amended Complaint To 28 || substitute the true name of Doe Defendant No. 1. 1 PLAINTIFFS’ EX PARTE APPLICATION TO ALLOW FILING OF THE AMENDMENT TO THE FIRST AMENDED COMPLAINT TO SUBSTITUTE TRUE NAME OF DOE DEFENDANT 1 The motion will be based on this notice of application, the application, the declaration of 2 || Davin R. Bacho, Esq. as well as on the records and file herein, and on such evidence as may be 3 || presented or considered by the Court. 4 I. INTRODUCTION a) Plaintiffs seek leave to file the amendment to substitute the true name of Doe Defendant No. 1 6 | as Black Knight Vineyards, LLC pursuant to Civ. Code Proc. §§ 473 and 474. A copy of the 7 || proposed amendment (“Amendment”) is attached as Exhibit A to the Declaration of Davin R. Bacho, 8 | filed herewith. Trial in this matter is scheduled for February 24, 2023. Defendants will incur no 9 || prejudice resulting from the proposed Amendment, by substituting the true names for the fictitious 10 || names wherever they appear in the First Amended Complaint. 11 Il. FACTUAL AND PROCEDURAL HISTORY 12 Plaintiffs filed the original Complaint in this matter on November 19, 2020. (Declaration of 13 || Davin R. Bacho (“Decl. of Bacho” at 4.) Thereafter, on January 20, 2022, Plaintiffs filed the First 14 || Amended Complaint pursuant to the Stipulation and Order filed on January 12, 2022. (Decl. of Bacho 15 | at 95.) On February 24, 2022 counsel for the Defendants, including Black Knight Vineyards, LLC, 16 || filed a Cross-Complaint against the Plaintiffs and atthat time counsel for the Plaintiffs became aware 17 || of Black Knight Vineyards, LLC who is currently a party to this litigation. (Decl. Bacho at §6.) 18 In March 2022, the Parties agreed to mediate the case. The parties also agreed to an open 19 || extension to the discovery propounded on the Defendants, filing of the Amendment, and Plaintiffs 20 || answer to the Cross-Complaint until after the mediation in an effort to focus on settlement. (Decl. of 21 || Bacho at 710.) The parties mediated the case on June 22, 2022 and continued settlement discussions 22 || through September 12, 2022. (Decl. of Bacho at 11.) 23 On August 29, 2022, counsel for Plaintiffs sent counsel for Defendants, Mitchell Greenberg, a 24 || Stipulation and Proposed Order to Allow the filing of the Amendment. (Decl. of Bacho at 412.) This 25 || was ignored. Counsel for Plaintiffs followed up seeking the stipulation which was never executed. 26 On September 14, 2021, counsel for Plaintiffs emailed Mr. Greenberg to provide notice of this 27 || ex parte motion. (Decl. of Bacho at 913 and Exhibit B) 28 PLAINTIFFS’ EX PARTE APPLICATION TO ALLOW FILING OF THE AMENDMENT TO THE FIRST AMENDED COMPLAINT TO SUBSTITUTE TRUE NAME OF DOE DEFENDANT 1 Ii. LEGAL ARGUMENT 2 A. GOOD CAUSE EXISTS TO GRANT THIS MOTION EX PARTE 3 Plaintiffs seek to substitute a Doe No. 1 for Black Knight Vineyards, LLC (“LLC”). The 4 || Defendants’ Property located at 4889 Grange Road was quitclaimed from Mitchell G. Black and 5 | Deanne G. Black, husband and wife as community property, to Black Knight Vineyards, LLC 6 || pursuant to a Quitclaim Deed recorded on February 15, 2022, as Document Number 2022011289, 7 || Sonoma County Records. (Decl. of Bacho at7.) The LLC is already a party to this litigation as a 8 || Cross-Complainant. (Decl. of Bacho at 46.) The LLC and the other Defendants and Cross- 9 | Complainants are currently represented by the same counsel of record. (Decl. of Bacho at 8.) 10 || Defendants will incur no prejudice as Plaintiffs as Mitchell Black isthe managing agent of Black 11 | Knight Vineyards, LLC and Deanne Black is also a member. To this point, the entire membership of 12 | the LLC has been aware of all relevant facts since the inception of litigation and trial isnot scheduled 13 | until February 24, 2023. 14 B. PLAINTIFF’S MOTION FOR LEAVE SHOULD BE GRANTED 15 Pursuant to Cal. Code Civ. Proc., §473(a)(1), “The court may, in furtherance of justice, and on 16 || any terms as may be proper, allow a party to amend any pleading or proceeding by adding or striking 17 | out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any other 18 || respect; and may, upon like terms, enlarge the time for answer or demurrer. The court may likewise, in 19 || its discretion, after notice to the adverse party, allow, upon any terms as may be just, an amendment to 20 || any pleading or proceeding in other particulars; and may upon like terms allow an answer to be made 21 | after the time limited by this code.” (Id.) Cal. Code Civ. Proc., §576 states, “Any judge, at any time 22 | before or after commencement of trial, in the furtherance of justice, and upon such terms as may be 23 || proper, may allow the amendment of any pleading or pretrial conference order.” “There is a strong 24 | policy in favor of liberal allowance of amendments.” (Mesler v.Bragg Mgmt. Co., (1985).39 Cal.3d 25 || 290, 296; also see Hooper v. Romero (1968) 262 Cal.App.2d 574-580.) The policy of liberality in 26 || granting amendments is so strong that it isa rare case in which denial for leave to amend can be 27 || justified and it is an abuse of discretion to deprive the party of a meritorious cause of action or defense 28 || ifthe motion will not prejudice the opposing party. (Morgan v. Superior Court (1959) 172 Cal.App.2d PLAINTIFFS’ EX PARTE APPLICATION TO ALLOW FILING OF THE AMENDMENT TO THE FIRST AMENDED COMPLAINT TO SUBSTITUTE TRUE NAME OF DOE DEFENDANT 1 | 527, 530; Mabie v. Hyatt, supra.) 2 Here, as stated above, trial in this matter is scheduled for February 24, 2023. (Decl. of Bacho 3 | at 714.) Pursuant to this Court’s order continuing the previously scheduled trialdate, discovery 4 | deadlines have been reset in accordance with the new trialdate. (Decl. of Bacho at 14.) As such, 5 || Defendants will have sufficient time and opportunity to conduct discovery prior to trial. Counsel for 6 || Defendants have been notified of the proposed Amendment and have been requested to stipulate for 7 | Plaintiffs filing the Amendment for some time. (Decl. of Bacho at §12.) The LLC is a represented 8 || party itself to this litigation and essentially the alter ego of Mitchell Black and Deanne Black 9 | eliminating any surprise or prejudice. (Decl. of Bacho at9.) On the basis provided above, and in 10 | furtherance of justice, the Court should grant Plaintiffs leave to filethe Amendment. 11 IV. CONCLUSION 12 Based on the foregoing, Plaintiffs respectfully requests that this Court grant thisMotion for 13 || leave to file the Amendment and serve Black Knight Vineyard, LLC as a Defendant. 14 || Dated: September 14, 2022 CLEMENT, FITZPATRICK & KENWORTHY 15 By: AZ 16 DAVIN R. BACHO Attorneys for Plaintiffs and Cross-Defendants 17 Barry Brilliant and Dagmar K. Hoheneck-Smith 18 19 20 21 22 23 24 25 26 27 28 . PLAINTIFFS’ EX PARTE APPLICATION TO ALLOW FILING OF THE AMENDMENT TO THE FIRST AMENDED COMPLAINT TO SUBSTITUTE TRUE NAME OF DOE DEFENDANT