On November 19, 2020 a
No Value
was filed
involving a dispute between
Brilliant, Barry,
Hoheneck-Smith, Dagmar K.,
and
Black, Deanne G.,
Black Knight Vineyards, Llc,
Black, Mitchell G.,
for 26: Unlimited Other Real Property
in the District Court of Sonoma County.
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 Kk. HOHENECK-SMITH, an
1] individual and as trustee of THE DAGMAR PLAINTIFFS’ OPPOSITION TO
HOHENECK-SMITH TRUST dated DEFENDANTS’ EX PARTE
12 | December 14, 2010, APPLICATION FOR SHORTENED
B TIME ON HEARING DATE FOR
Plaintiffs, MOTION TO BE RELIEVED AS
14 COUNSEL AND FOR STAY OF
vs. DISCOVERY PENDING HEARING ON
. MOTION
15 | MITCHELL G. BLACK, an individual and
dba BLACK KNIGHT VINEYARDS;
16 | DEANNE G. BLACK, an individual and Date: September. 15, 2022
17 | DOES ONE through TWENTY, inclusive, Dep . BT
18 Defendants. Judge: Hon. Jennifer V. Dollard
19 (Unlimited Civil)
20
21 AND RELATED CROSS-ACTIONS
22
23
24 I. INTRODUCTION
25 The Defendants’ counsel of record seeks relief through an ex parte application on the
26 || following two grounds: (1) Shortened time to hear the relief of counsel motion; and (2) A stay in
27 || discovery until that time. Plaintiffs support the request for shortened time for counsel to be relieved
28 || but oppose the request for a discovery stay.
1
PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ EX PARTE APPLICATION TO STAY DISCOVERY
1 Yl. FACTS
2 This matter arises out of the Defendants failure to maintain their real property in a safe
3 || condition. Upon information and belief from opposing counsel, Defendants are currently in contract
4 || to sell the property which is set to close in November 2022. (Decl. of Davin R. Bacho (“Decl. of
5 || Bacho”) at {4). The identity of the new potential owners and relevant documents concerning
6 || disclosures and conditions on the Defendants’ property are being withheld through delays. (Ibid.)
7 || Given the impending sale, a significant prejudice will be created if a discovery stay is implemented as
8 || the Defendants may no longer be in possession of the real property at issue.
9 Plaintiffs served the Defendants with written discovery on January 1, 2022. (Decl. of Bacho at
10 | 95.) After courtesy extensions were provided, responses were then due in March 2022. (Ibid.)
11 | Through counsel, Defendants requested mediation take place with discovery being stayed to focus on
12 || settlement. (Ibid.) Plaintiffs agreed and mediation was conducted in June of 2022. Defendants were
13 || then obligated to respond in July of 2022 due to mediation failing to resolve the matter. (Ibid.)
14 || Defendants then requested additional time to respond which was provided. (Ibid.) After multiple
15 || extensions, the deadline to respond is now September 16, 2022. (Ibid.) This date was negotiated by
16 | opposing counsel on behalf of the Defendants. (Ibid.)
17 A subpoena for records was issued to various third parties, two of which are public entities, on
18 || July 25" and 26", 2022. (Decl. of Bacho at §6.) Two extensions were granted ultimately requiring
19 || production of records by September 15, 2022. (Ibid.) This date was pre-negotiated with Defendants’
20 || counsel long ago. (Ibid.)
21 Through counsel, Plaintiffs requested available dates for the Defendants’ deposition in August
22 || of 2022 and identified the intended dates to conduct such depositions. (Decl. of Bacho at7.)
23 || Defendants never responded. Plaintiffs served the notices of depositions on August 29, 2022. (Ibid.)
24 || The two depositions are currently set for September 22, 2022 and September 29, 2022. (Ibid.) At no
25 || point did Defendants indicate they were unavailable. (Ibid.)
26 | ////
27 | ////
28 | ////
2
PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ EX PARTE APPLICATION TO STAY DISCOVERY
1 Til. ARGUMENT
2 1. Prejudice
3 Plaintiffs have a right to discovery including written discovery, depositions and subpoenas.
4 | Trial in this matter is fast approaching as itis currently set for February 24, 2023. (Decl. of Bacho at
5 | 48.) Plaintiffs strongly anticipate the Defendants will refuse to comply with valid forms of discovery
6 || currently at issue thus requiring motions to compel based on information received and past dealings.
7 || (Decl. of Bacho at 48.) This will prejudice the Plaintiffs in obtaining the relevant information needed
8 || for trial given the impacted calendar of the court and impending discovery cutoffs. The Defendants
9 || are also in contract to sell the property at issue which will dramatically affect this litigation and
10 || emphasizes the need for the discovery on a timely basis. Any additional stay will only act to increase
11 | the prejudice and interference of Plaintiffs’ rights to discovery and remedies.
12 2. Subpoenas
13 Defendants never objected to the subpoenas, did not meet and confer on a motion to quash nor
14 || was one filed. (Decl. of Bacho at9.) Any motion to quash would have been due no later than
15 || September 9, 2022 per California Code of Civil Procedure §1985.3. The date of production was pre-
16 || negotiated with Defendants’ counsel prior to his decision to terminate the attorney client relationship.
17 || (Decl. of Bacho at 6.) Plaintiffs have proactively agreed that any financially private information
18 || such as social security numbers, account numbers or monetary consideration can be redacted. (Ibid.)
19 || Two of the entities producing documents are public offices, further eliminating any need to stay the
20 || production. (Decl. of Bacho at 46.)
21 3. Depositions & Written Discovery
22 Plaintiffs will agree to continue the depositions and written discovery responses of the
23 | Defendants until after October 3, 2022 or whenever defense counsel is relieved, whichever is earlier.
24 || The information sought isparamount to the litigation. Any delay leaves littletime to discover
25 | additional facts, issue subpoenas, conduct follow up depositions or perform anticipated motion work.
26 | ////
27 | ////
28 | ////
3
PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ EX PARTE APPLICATION TO STAY DISCOVERY _ -
1 IV. CONCLUSION
2 Based on the foregoing, Plaintiffs’ requests this Court deny the request for a formal discovery
3| stay.
4 | Dated: September 15, 2022 CLEMENT, FITZPATRICK & KENWORTHY
5 By: AO — .
6 Attorneys for Plaintift and Cross-Defendants
7 Barry Brilliant and Dagmar K. Hoheneck-Smith
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PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ EX PARTE APPLICATION TO STAY DISCOVERY
Document Filed Date
September 15, 2022
Case Filing Date
November 19, 2020
Category
26: Unlimited Other Real Property
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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 Kk. HOHENECK-SMITH, an 1] individual and as trustee of THE DAGMAR PLAINTIFFS’ OPPOSITION TO HOHENECK-SMITH TRUST dated DEFENDANTS’ EX PARTE 12 | December 14, 2010, APPLICATION FOR SHORTENED B TIME ON HEARING DATE FOR Plaintiffs, MOTION TO BE RELIEVED AS 14 COUNSEL AND FOR STAY OF vs. DISCOVERY PENDING HEARING ON . MOTION 15 | MITCHELL G. BLACK, an individual and dba BLACK KNIGHT VINEYARDS; 16 | DEANNE G. BLACK, an individual and Date: September. 15, 2022 17 | DOES ONE through TWENTY, inclusive, Dep . BT 18 Defendants. Judge: Hon. Jennifer V. Dollard 19 (Unlimited Civil) 20 21 AND RELATED CROSS-ACTIONS 22 23 24 I. INTRODUCTION 25 The Defendants’ counsel of record seeks relief through an ex parte application on the 26 || following two grounds: (1) Shortened time to hear the relief of counsel motion; and (2) A stay in 27 || discovery until that time. Plaintiffs support the request for shortened time for counsel to be relieved 28 || but oppose the request for a discovery stay. 1 PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ EX PARTE APPLICATION TO STAY DISCOVERY 1 Yl. FACTS 2 This matter arises out of the Defendants failure to maintain their real property in a safe 3 || condition. Upon information and belief from opposing counsel, Defendants are currently in contract 4 || to sell the property which is set to close in November 2022. (Decl. of Davin R. Bacho (“Decl. of 5 || Bacho”) at {4). The identity of the new potential owners and relevant documents concerning 6 || disclosures and conditions on the Defendants’ property are being withheld through delays. (Ibid.) 7 || Given the impending sale, a significant prejudice will be created if a discovery stay is implemented as 8 || the Defendants may no longer be in possession of the real property at issue. 9 Plaintiffs served the Defendants with written discovery on January 1, 2022. (Decl. of Bacho at 10 | 95.) After courtesy extensions were provided, responses were then due in March 2022. (Ibid.) 11 | Through counsel, Defendants requested mediation take place with discovery being stayed to focus on 12 || settlement. (Ibid.) Plaintiffs agreed and mediation was conducted in June of 2022. Defendants were 13 || then obligated to respond in July of 2022 due to mediation failing to resolve the matter. (Ibid.) 14 || Defendants then requested additional time to respond which was provided. (Ibid.) After multiple 15 || extensions, the deadline to respond is now September 16, 2022. (Ibid.) This date was negotiated by 16 | opposing counsel on behalf of the Defendants. (Ibid.) 17 A subpoena for records was issued to various third parties, two of which are public entities, on 18 || July 25" and 26", 2022. (Decl. of Bacho at §6.) Two extensions were granted ultimately requiring 19 || production of records by September 15, 2022. (Ibid.) This date was pre-negotiated with Defendants’ 20 || counsel long ago. (Ibid.) 21 Through counsel, Plaintiffs requested available dates for the Defendants’ deposition in August 22 || of 2022 and identified the intended dates to conduct such depositions. (Decl. of Bacho at7.) 23 || Defendants never responded. Plaintiffs served the notices of depositions on August 29, 2022. (Ibid.) 24 || The two depositions are currently set for September 22, 2022 and September 29, 2022. (Ibid.) At no 25 || point did Defendants indicate they were unavailable. (Ibid.) 26 | //// 27 | //// 28 | //// 2 PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ EX PARTE APPLICATION TO STAY DISCOVERY 1 Til. ARGUMENT 2 1. Prejudice 3 Plaintiffs have a right to discovery including written discovery, depositions and subpoenas. 4 | Trial in this matter is fast approaching as itis currently set for February 24, 2023. (Decl. of Bacho at 5 | 48.) Plaintiffs strongly anticipate the Defendants will refuse to comply with valid forms of discovery 6 || currently at issue thus requiring motions to compel based on information received and past dealings. 7 || (Decl. of Bacho at 48.) This will prejudice the Plaintiffs in obtaining the relevant information needed 8 || for trial given the impacted calendar of the court and impending discovery cutoffs. The Defendants 9 || are also in contract to sell the property at issue which will dramatically affect this litigation and 10 || emphasizes the need for the discovery on a timely basis. Any additional stay will only act to increase 11 | the prejudice and interference of Plaintiffs’ rights to discovery and remedies. 12 2. Subpoenas 13 Defendants never objected to the subpoenas, did not meet and confer on a motion to quash nor 14 || was one filed. (Decl. of Bacho at9.) Any motion to quash would have been due no later than 15 || September 9, 2022 per California Code of Civil Procedure §1985.3. The date of production was pre- 16 || negotiated with Defendants’ counsel prior to his decision to terminate the attorney client relationship. 17 || (Decl. of Bacho at 6.) Plaintiffs have proactively agreed that any financially private information 18 || such as social security numbers, account numbers or monetary consideration can be redacted. (Ibid.) 19 || Two of the entities producing documents are public offices, further eliminating any need to stay the 20 || production. (Decl. of Bacho at 46.) 21 3. Depositions & Written Discovery 22 Plaintiffs will agree to continue the depositions and written discovery responses of the 23 | Defendants until after October 3, 2022 or whenever defense counsel is relieved, whichever is earlier. 24 || The information sought isparamount to the litigation. Any delay leaves littletime to discover 25 | additional facts, issue subpoenas, conduct follow up depositions or perform anticipated motion work. 26 | //// 27 | //// 28 | //// 3 PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ EX PARTE APPLICATION TO STAY DISCOVERY _ - 1 IV. CONCLUSION 2 Based on the foregoing, Plaintiffs’ requests this Court deny the request for a formal discovery 3| stay. 4 | Dated: September 15, 2022 CLEMENT, FITZPATRICK & KENWORTHY 5 By: AO — . 6 Attorneys for Plaintift and Cross-Defendants 7 Barry Brilliant and Dagmar K. Hoheneck-Smith 8 9 10 11 12 13 14 15 16 17 18 19 20 2] 22 23 24 25 26 27 28 4 PLAINTIFFS’ OPPOSITION TO DEFENDANTS’ EX PARTE APPLICATION TO STAY DISCOVERY