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BRYAN CAVE LLP
560 MISSION STREET, 25TH FLOOR
SAN FRANCISCO, CA 94105-2994
RN YN NN NN DY See ee Se
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BRYAN CAVE LLP
Daniel T. Rockey, California Bar No. 178604
Goli Mahdavi, California Bar No. 245705
560 Mission Street, 25th Floor
San Francisco, CA 94105-2994
ELECTRONICALLY
FILED
Superior Court of California,
County of San Francisco
03/18/2016
Clerk of the Court
BY-MAURA RAMIREZ
Deputy Clerk
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF SAN FRANCISCO
Telephone: (415) 675-3400
Facsimile: (415) 675-3434
E-Mail: daniel.rockey@bryancave.com
goli.mahdavi@bryancave.com.
Attorneys for Defendant
JPMORGAN CHASE BANK, N.A.
MARTIN ENG,
Plaintiff,
Vv.
JPMORGAN CHASE BANK, N.A.;
QUALITY LOAN SERVICES: LENDER
PROCESSING SERVICES, INC., DOES 1-
1000 inclusive,
Defendants.
Case No. CGC-15-546377
DEFENDANT JPMORGAN CHASE
BANK, N.A.’S OPPOSITION TO
PLAINTIFF’S EX PARTE APPLICATION
TO CONTINUE THE MARCH 21
DEMURRER HEARING, OR FOR AN
ORDER SHORTENING TIME TO BE
HEARD ON A MOTION TO STRIKE
DEFENDANT’S DEMURRER
Date: March 18, 2016
Time: 11:00 a.m.
Dept.: 302
Complaint Filed: June 16, 2015
FAC Filed: February 2016
Trial Date: Not Yet Assigned
JPMORGAN CHASE’S OPPOSITION TO PLAINTIFF’S EX PARTE APPLICATION FOR A CONTINUANCECoen Hn FF WN
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BRYAN CAVE LLP
560 MISSION STREET, 25TH FLOOR
SAN FRANCISCO, CA 94105-2994
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MEMORANDUM OF POINTS AND AUTHORITIES
At the time of preparing this opposition, Plaintiff Martin Eng (“Plaintiff”) has not served
Defendant JPMorgan Chase Bank, N.A., (“Defendant”) with its ex parte application. However,
based on the ex parte notice, Defendant understands that Plaintiff noticed this ex parte hearing for
an order continuing the Demurrer hearing, or in the alternative, shortening time on a motion to
strike the demurrer that Plaintiff has not yet filed. Defendant hereby submits its Opposition to the
ex parte application.
1. INTRODUCTION
Plaintiff's ex parte Application is yet another example of Plaintiff's improper attempts to
stall the progress of his case. The ex parte application should be denied. Plaintiff cannot establish
good cause for his request to continue the March 21st Demurrer hearing date for the following
three reasons: (1) the Demurrer was timely served on February 18th; (2) Plaintiff has had
numerous opportunities and ample time to file an opposition to the Demurrer but has failed to do
so repeatedly without any satisfactory explanation; (3) Any delay in receiving a copy of the
Demurrer was caused by Plaintiffs own lack of diligence; and (4) Plaintiff offers no basis to
establish why this application could not have been made earlier.
For these very same reasons, good cause does not exist to grant Plaintiff's request for
shortened time on a motion to strike the demurrer. Defendant respectfully requests that the Court
deny Plaintiff's ex parte application.
I. PROCEDURAL HISTORY
On June 16, 2015, Plaintiff filed the original complaint in this Court alleging seven causes
of action: (1) slander of title; (2) cancellation of instruments; (3) violation of Business and
Professions Code section 17200; (4) fraud and deceit; (5) wrongful foreclosure; (6) quiet title; and
(7) violation of the Racketeer Influenced and Corrupt Organizations Act. (Mahdavi Decl. { 2.)
On December 8, 2015, Chase filed a demurrer to Plaintiff's Complaint. (Mahdavi Decl.
3.) The demurrer was scheduled to be heard on January 6, 2016. (dd.)
SFOIDOCS\274611.1 1
JPMORGAN CHASE’S OPPOSITION TO PLAINTIFF’S EX PARTE APPLICATION FOR A CONTINUANCEBRYAN Cave LLP
560 MISSION STREET, 25TH FLOOR
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Plaintiff did not oppose the demurrer, but instead filed a Notice of Intent to File an
Amended Complaint on December 23, 2016. (Mahdavi Decl. § 4.) But Plaintiff did not file an
amended complaint prior to the January 6th Demurrer hearing. (Mahdavi Decl. 4 5.)
However, due to Plaintiff's preemptory challenge, the Demurrer was not heard on January
6, 2016, but rather transferred to Department 302 to be heard on January 15, 2016. (Mahdavi Decl.
96.)
On January 14, 2016, Judge Goldsmith issued a tentative ruling sustaining the Demurrer
without leave to amend as no opposition was filed. (Mahdavi Decl. § 7.) Plaintiff contested the
tentative ruling. (/d.) At the January 15th Demurrer hearing, Plaintiffs Counsel advised that an
amended complaint had been filed on January 14, 2016 —just one day before the continued
hearing on Defendant’s Demurrer. (Mahdavi Decl. § 8.) The Court took the matter under
submission and on January 20th ordered that Plaintiff's filing of the First Amended Complaint
rendered the Demurrer moot. (/d.)
The FAC largely repeats the same allegations from the original complaint, and includes the
following claims: (1) slander of title; (2) cancellation of instruments; (3) violation of Business and
Professions Code section 17200; (4) negligence; (5) wrongful foreclosure; (6) quiet title; and (7)
violation of the Racketeer Influenced and Corrupt Organizations Act.
On February 18, 2016, Chase filed a demurrer to Plaintiff's First Amended Complaint.
(Mahdavi Decl. § 9.) That same day, the Demurrer was served on Plaintiff's Counsel via U.S.
mail to his address at 2372 SE Bristol Street, 2nd Floor, Newport Beach, CA. (Mahdavi Decl. ¥
9.) Pursuant to California Code of Civil Procedure section 1005(b), any opposition to
Defendant’s Demurrer was required to be filed at least nine court days before the hearing, making
it due March 14th. See Civ. Proc. Code § 1005 (b).
On February 25th, Plaintiff's Counsel, aware that the Demurrer had been filed on February
18th, inquired with Defense Counsel whether it had been served. (Mahdavi Decl. { 10.) Defense
Counsel almost immediately advised that the Demurrer had been served via U.S. Mail on February
18th and that if the service copy was not received by close of business to notify Defense Counsel.
(Mahdavi Decl. { 11.) No further correspondence was received from Plaintiff's Counsel, nor did
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JPMORGAN CHASE’S OPPOSITION TO PLAINTIFF'S EX PARTE APPLICATION FOR A CONTINUANCECoe NY DW BRB WH
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SAN FRANCISCO, CA 94105-2004
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Plaintiff's Counsel request an electronic copy of the Demurrer, thus it was assumed that the
service copy of the Demurrer had been received. (Mahdavi Decl. 12.)
On March 18th, Defense Counsel was surprised to learn that Plaintiff planned to appear ex
parte to seek a continuance of the hearing on the basis that Plaintiff claims to have received a copy
of the Demurrer on February 29th.
Plaintiff had ample opportunity to file an opposition but failed to do so and now, at the
eleventh hour, seeks to delay the outcome of the Demurrer yet again.
Il. LEGAL STANDARD
Courts may only grant an ex parte application for good cause shown. Cal. Rules Ct., Rule
3.1200. The party seeking the ex parte application “must make an affirmative factual showing...
of irreparable harm, immediate danger, or any other statutory basis for granting relief ex parte.”
Cal. Rule. Ct., Rule 3.1202(c).
Civ. Proc. Code § 1005 prescribes the times for written notice of motions and for the
service and filing of supporting and opposing papers. Code Civ. Proc. § 1005(b), however,
provides that "[t]he court, or a judge thereof, may prescribe a shorter time" than otherwise
prescribed in § 1005. California Rules of Court, rule 3.1300(b) states: The court, on its own
motion or on application for an order shortening time supported by a declaration showing good
cause, may prescribe shorter times for the filing and service of papers than the time specified in
Code of Civil Procedure section 1005.
UI. PLAINTIFF HAS NOT MET HIS BURDEN OF SHO
iG GOOD CAUSE FOR
HIS REQUEST FOR A CONTINUANCE
To obtain ex parte relief, the Rules of Court require an “applicant” to make “an affirmative
factual showing in a declaration containing competent testimony” of the “basis for granting relief.”
Cal. R. Ct. 3.1202(c). Here Plaintiff seeks a continuance of the Demurrer hearing so that he can
file a response to the Demurrer because, he claims did not receive the Demurrer until February
29th. This is not sufficient.
First, Plaintiff has had ample time to file an Opposition to the Demurrer, but has failed to
offer an adequate explanation for his failure to file one. He was properly served with Defendant’s
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JPMORGAN CHASE'S OPPOSITION TO PLAINTIFF'S EX PARTE APPLICATION FOR A CONTINUANCECoC ON DHA BR WN
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560 MISSION STREET, 25TH FLOOR
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Demurrer on February 18th. (See Demurrer Proof of Service attached hereto as Exh. A.) Even
assumed the copy did not reach Plaintiff until February 29th, Plaintiff still had ten days in which
to prepare an opposition. Ten days was more than adequate to prepare an opposition to the
Demurrer as the vast majority of the arguments raised by Defendant were also raised in its
Demurrer to the original complaint filed in December 2015. Moreover, Plaintiff failed to request
an electronic copy of the Demurrer from Defense Counsel or obtain a copy from the Court despite
the fact that he was aware that a Demurrer had been filed as of February 25th, possibly sooner.
Plaintiff has not offered any legitimate factual basis for his failure to make any efforts to obtain a
copy of the Demurrer.
Accordingly, Plaintiff cannot meet his burden of making an “affirmative factual showing”
by claiming that he did not have adequate notice of the Demurrer.
Second, Plaintiff offers no basis of the necessity of making this motion on an ex parte
basis. As discussed above, Plaintiff has had adequate notice and opportunity to oppose the
Demurrer. Not only did Plaintiff fail to oppose the Demurrer — notably, not the first time — he also
waited until the eleventh hour to bring this application. Plaintiff elected to wait to bring the instant
motion on the eve of the Demurrer hearing. As such, Plaintiff cannot establish the propriety of
his filing the instant application the day before the Demurrer hearing. Plaintiff admittedly was
on notice of the Demurrer filing on February 25th and had ten days to prepare an opposition.
Despite knowledge of the Demurrer filing, Plaintiff never requested that Defense counsel provide
him with a copy of the filed demurrer. Plaintiff also never sought to obtain a copy from the Court.
Plaintiff cannot offer a justifiable basis for her unreasonably delay in seeking this motion. His
demonstrable lack of diligence throughout this litigation is inexcusable.
Iv. PLAINTIFF HAS NOT MET HIS BURDEN OF SHOWING GOOD CAUSE FOR
HIS REQUEST FOR AN ORDER SHORTENING TIME TO BE HEARD ON A
MOTION TO STRIKE THE DEMURRER
Alternatively, Plaintiff seeks ex parte relief for an order shortening time to be heard on a
motion to strike. Again, the purported good cause supporting this request for relief is the claim
SFOIDOCSW74611.1 4
JPMORGAN CHASE’S OPPOSITION TO PLAINTIFF'S EX PARTE APPLICATION FOR A CONTINUANCEBRYAN Cave LLP
560 MISSION STREET, 25TH FLOOR
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SOO NI DH BR YW Ye
that Plaintiff did not receive the service copy until February 29th ~ three weeks before the
scheduled hearing date of March 21st.
Civil Procedure Code Section 436 provides in relevant part: “The court may, upon a
motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems
proper: (a) Strike out any irrelevant, false, or improper matter inserted in any pleading.” Pursuant
to Section 435(a)(3), “[a] notice of motion to strike a demurrer, or a portion thereof, shall set the
hearing thereon concurrently with the hearing on the demurrer.”
As a preliminary matter, a motion to strike is not the only, or even the most appropriate,
procedural mechanism to challenge Defendant’s Demurrer on the basis of alleged improper
service. Any argument related to improper service could have — and should have — been raised via
a timely opposition to the Demurrer.
In any event, as discussed above, Plaintiff had ample opportunity to serve a motion to
strike by the opposition deadline of March 14th but has failed to offer an adequate explanation for
his failure to file one. (See Sect. III supra.)
Finally, not only does good cause not exist to permit Plaintiff to file a motion to strike on
shortened time, but granting the relief would prejudice Defendant. Currently, Plaintiff has neither
filed nor served the proposed motion to strike the demurrer. (Mahdavi Decl. § 13.) Therefore,
shortening the statutory notice period on Plaintiff's Motion would work a hardship on Defendant
because it will not have had an adequate opportunity to review the proposed motion to strike the
demurrer or the opposition to the demurrer that will surely accompany it.
Vv. CONCLUSION
For the foregoing reasons, the Court should deny Plaintiff's unsupported application to
continue the hearing for the Demurrer. Plaintiff had ample notice of the Demurrer hearing date
and there is no basis to continue the hearing.
Dated: March IS, 2016
Goli Mahdavi,
Attomeys for Defendant
JPMORGAN CHASE BANK, N.A.
SFOIDOCS\274611.1 5
JPMORGAN CHASE’S OPPOSITION TO PLAINTIFF'S EX PARTE APPLICATION FOR A CONTINUANCE
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Com ND WH RB WN Bee ee ee RB NF Oo BRYAN CAVE LLP 560 MISSION STREET, 25TH FLOOR SAN FRANCISCO, CA 94105-2994 RN YN NN NN DY See ee Se oN AA BF WN KF SOD we IAD BRYAN CAVE LLP Daniel T. Rockey, California Bar No. 178604 Goli Mahdavi, California Bar No. 245705 560 Mission Street, 25th Floor San Francisco, CA 94105-2994 ELECTRONICALLY FILED Superior Court of California, County of San Francisco 03/18/2016 Clerk of the Court BY-MAURA RAMIREZ Deputy Clerk SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SAN FRANCISCO Telephone: (415) 675-3400 Facsimile: (415) 675-3434 E-Mail: daniel.rockey@bryancave.com goli.mahdavi@bryancave.com. Attorneys for Defendant JPMORGAN CHASE BANK, N.A. MARTIN ENG, Plaintiff, Vv. JPMORGAN CHASE BANK, N.A.; QUALITY LOAN SERVICES: LENDER PROCESSING SERVICES, INC., DOES 1- 1000 inclusive, Defendants. Case No. CGC-15-546377 DEFENDANT JPMORGAN CHASE BANK, N.A.’S OPPOSITION TO PLAINTIFF’S EX PARTE APPLICATION TO CONTINUE THE MARCH 21 DEMURRER HEARING, OR FOR AN ORDER SHORTENING TIME TO BE HEARD ON A MOTION TO STRIKE DEFENDANT’S DEMURRER Date: March 18, 2016 Time: 11:00 a.m. Dept.: 302 Complaint Filed: June 16, 2015 FAC Filed: February 2016 Trial Date: Not Yet Assigned JPMORGAN CHASE’S OPPOSITION TO PLAINTIFF’S EX PARTE APPLICATION FOR A CONTINUANCECoen Hn FF WN ee BW NHN & O&O BRYAN CAVE LLP 560 MISSION STREET, 25TH FLOOR SAN FRANCISCO, CA 94105-2994 NN NY NY NN NN NY SY YF Be SF = oN HAA BF YBwNH EF SO we IN DN MEMORANDUM OF POINTS AND AUTHORITIES At the time of preparing this opposition, Plaintiff Martin Eng (“Plaintiff”) has not served Defendant JPMorgan Chase Bank, N.A., (“Defendant”) with its ex parte application. However, based on the ex parte notice, Defendant understands that Plaintiff noticed this ex parte hearing for an order continuing the Demurrer hearing, or in the alternative, shortening time on a motion to strike the demurrer that Plaintiff has not yet filed. Defendant hereby submits its Opposition to the ex parte application. 1. INTRODUCTION Plaintiff's ex parte Application is yet another example of Plaintiff's improper attempts to stall the progress of his case. The ex parte application should be denied. Plaintiff cannot establish good cause for his request to continue the March 21st Demurrer hearing date for the following three reasons: (1) the Demurrer was timely served on February 18th; (2) Plaintiff has had numerous opportunities and ample time to file an opposition to the Demurrer but has failed to do so repeatedly without any satisfactory explanation; (3) Any delay in receiving a copy of the Demurrer was caused by Plaintiffs own lack of diligence; and (4) Plaintiff offers no basis to establish why this application could not have been made earlier. For these very same reasons, good cause does not exist to grant Plaintiff's request for shortened time on a motion to strike the demurrer. Defendant respectfully requests that the Court deny Plaintiff's ex parte application. I. PROCEDURAL HISTORY On June 16, 2015, Plaintiff filed the original complaint in this Court alleging seven causes of action: (1) slander of title; (2) cancellation of instruments; (3) violation of Business and Professions Code section 17200; (4) fraud and deceit; (5) wrongful foreclosure; (6) quiet title; and (7) violation of the Racketeer Influenced and Corrupt Organizations Act. (Mahdavi Decl. { 2.) On December 8, 2015, Chase filed a demurrer to Plaintiff's Complaint. (Mahdavi Decl. 3.) The demurrer was scheduled to be heard on January 6, 2016. (dd.) SFOIDOCS\274611.1 1 JPMORGAN CHASE’S OPPOSITION TO PLAINTIFF’S EX PARTE APPLICATION FOR A CONTINUANCEBRYAN Cave LLP 560 MISSION STREET, 25TH FLOOR SAN FRANCISCO, CA 94105-2994 = Cem ND HW BR WN 10 Plaintiff did not oppose the demurrer, but instead filed a Notice of Intent to File an Amended Complaint on December 23, 2016. (Mahdavi Decl. § 4.) But Plaintiff did not file an amended complaint prior to the January 6th Demurrer hearing. (Mahdavi Decl. 4 5.) However, due to Plaintiff's preemptory challenge, the Demurrer was not heard on January 6, 2016, but rather transferred to Department 302 to be heard on January 15, 2016. (Mahdavi Decl. 96.) On January 14, 2016, Judge Goldsmith issued a tentative ruling sustaining the Demurrer without leave to amend as no opposition was filed. (Mahdavi Decl. § 7.) Plaintiff contested the tentative ruling. (/d.) At the January 15th Demurrer hearing, Plaintiffs Counsel advised that an amended complaint had been filed on January 14, 2016 —just one day before the continued hearing on Defendant’s Demurrer. (Mahdavi Decl. § 8.) The Court took the matter under submission and on January 20th ordered that Plaintiff's filing of the First Amended Complaint rendered the Demurrer moot. (/d.) The FAC largely repeats the same allegations from the original complaint, and includes the following claims: (1) slander of title; (2) cancellation of instruments; (3) violation of Business and Professions Code section 17200; (4) negligence; (5) wrongful foreclosure; (6) quiet title; and (7) violation of the Racketeer Influenced and Corrupt Organizations Act. On February 18, 2016, Chase filed a demurrer to Plaintiff's First Amended Complaint. (Mahdavi Decl. § 9.) That same day, the Demurrer was served on Plaintiff's Counsel via U.S. mail to his address at 2372 SE Bristol Street, 2nd Floor, Newport Beach, CA. (Mahdavi Decl. ¥ 9.) Pursuant to California Code of Civil Procedure section 1005(b), any opposition to Defendant’s Demurrer was required to be filed at least nine court days before the hearing, making it due March 14th. See Civ. Proc. Code § 1005 (b). On February 25th, Plaintiff's Counsel, aware that the Demurrer had been filed on February 18th, inquired with Defense Counsel whether it had been served. (Mahdavi Decl. { 10.) Defense Counsel almost immediately advised that the Demurrer had been served via U.S. Mail on February 18th and that if the service copy was not received by close of business to notify Defense Counsel. (Mahdavi Decl. { 11.) No further correspondence was received from Plaintiff's Counsel, nor did SFOIDOCS\274611.1 2 JPMORGAN CHASE’S OPPOSITION TO PLAINTIFF'S EX PARTE APPLICATION FOR A CONTINUANCECoe NY DW BRB WH Soe oe ee BR WN SF BRYAN Cave LLP 560 MISSION STREET, 25TH FLOOR SAN FRANCISCO, CA 94105-2004 NHN NY N NY NY DY FP PF Fe BNRRRBERUESECeSVUSRKG Plaintiff's Counsel request an electronic copy of the Demurrer, thus it was assumed that the service copy of the Demurrer had been received. (Mahdavi Decl. 12.) On March 18th, Defense Counsel was surprised to learn that Plaintiff planned to appear ex parte to seek a continuance of the hearing on the basis that Plaintiff claims to have received a copy of the Demurrer on February 29th. Plaintiff had ample opportunity to file an opposition but failed to do so and now, at the eleventh hour, seeks to delay the outcome of the Demurrer yet again. Il. LEGAL STANDARD Courts may only grant an ex parte application for good cause shown. Cal. Rules Ct., Rule 3.1200. The party seeking the ex parte application “must make an affirmative factual showing... of irreparable harm, immediate danger, or any other statutory basis for granting relief ex parte.” Cal. Rule. Ct., Rule 3.1202(c). Civ. Proc. Code § 1005 prescribes the times for written notice of motions and for the service and filing of supporting and opposing papers. Code Civ. Proc. § 1005(b), however, provides that "[t]he court, or a judge thereof, may prescribe a shorter time" than otherwise prescribed in § 1005. California Rules of Court, rule 3.1300(b) states: The court, on its own motion or on application for an order shortening time supported by a declaration showing good cause, may prescribe shorter times for the filing and service of papers than the time specified in Code of Civil Procedure section 1005. UI. PLAINTIFF HAS NOT MET HIS BURDEN OF SHO iG GOOD CAUSE FOR HIS REQUEST FOR A CONTINUANCE To obtain ex parte relief, the Rules of Court require an “applicant” to make “an affirmative factual showing in a declaration containing competent testimony” of the “basis for granting relief.” Cal. R. Ct. 3.1202(c). Here Plaintiff seeks a continuance of the Demurrer hearing so that he can file a response to the Demurrer because, he claims did not receive the Demurrer until February 29th. This is not sufficient. First, Plaintiff has had ample time to file an Opposition to the Demurrer, but has failed to offer an adequate explanation for his failure to file one. He was properly served with Defendant’s SFOIDOCS(274611.1 3 JPMORGAN CHASE'S OPPOSITION TO PLAINTIFF'S EX PARTE APPLICATION FOR A CONTINUANCECoC ON DHA BR WN Se oe Se Se oe - Ww NH & SS BRYAN Cave LLP 560 MISSION STREET, 25TH FLOOR SAN FRANCISCO, CA 94105-2994 Nw NY NY NY NY NY NY NY YQ yee Be ee oT DAA PB wWw YH KF SOD eI DN Demurrer on February 18th. (See Demurrer Proof of Service attached hereto as Exh. A.) Even assumed the copy did not reach Plaintiff until February 29th, Plaintiff still had ten days in which to prepare an opposition. Ten days was more than adequate to prepare an opposition to the Demurrer as the vast majority of the arguments raised by Defendant were also raised in its Demurrer to the original complaint filed in December 2015. Moreover, Plaintiff failed to request an electronic copy of the Demurrer from Defense Counsel or obtain a copy from the Court despite the fact that he was aware that a Demurrer had been filed as of February 25th, possibly sooner. Plaintiff has not offered any legitimate factual basis for his failure to make any efforts to obtain a copy of the Demurrer. Accordingly, Plaintiff cannot meet his burden of making an “affirmative factual showing” by claiming that he did not have adequate notice of the Demurrer. Second, Plaintiff offers no basis of the necessity of making this motion on an ex parte basis. As discussed above, Plaintiff has had adequate notice and opportunity to oppose the Demurrer. Not only did Plaintiff fail to oppose the Demurrer — notably, not the first time — he also waited until the eleventh hour to bring this application. Plaintiff elected to wait to bring the instant motion on the eve of the Demurrer hearing. As such, Plaintiff cannot establish the propriety of his filing the instant application the day before the Demurrer hearing. Plaintiff admittedly was on notice of the Demurrer filing on February 25th and had ten days to prepare an opposition. Despite knowledge of the Demurrer filing, Plaintiff never requested that Defense counsel provide him with a copy of the filed demurrer. Plaintiff also never sought to obtain a copy from the Court. Plaintiff cannot offer a justifiable basis for her unreasonably delay in seeking this motion. His demonstrable lack of diligence throughout this litigation is inexcusable. Iv. PLAINTIFF HAS NOT MET HIS BURDEN OF SHOWING GOOD CAUSE FOR HIS REQUEST FOR AN ORDER SHORTENING TIME TO BE HEARD ON A MOTION TO STRIKE THE DEMURRER Alternatively, Plaintiff seeks ex parte relief for an order shortening time to be heard on a motion to strike. Again, the purported good cause supporting this request for relief is the claim SFOIDOCSW74611.1 4 JPMORGAN CHASE’S OPPOSITION TO PLAINTIFF'S EX PARTE APPLICATION FOR A CONTINUANCEBRYAN Cave LLP 560 MISSION STREET, 25TH FLOOR SAN FRANCISCO, CA 94105-2994 SOO NI DH BR YW Ye that Plaintiff did not receive the service copy until February 29th ~ three weeks before the scheduled hearing date of March 21st. Civil Procedure Code Section 436 provides in relevant part: “The court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper: (a) Strike out any irrelevant, false, or improper matter inserted in any pleading.” Pursuant to Section 435(a)(3), “[a] notice of motion to strike a demurrer, or a portion thereof, shall set the hearing thereon concurrently with the hearing on the demurrer.” As a preliminary matter, a motion to strike is not the only, or even the most appropriate, procedural mechanism to challenge Defendant’s Demurrer on the basis of alleged improper service. Any argument related to improper service could have — and should have — been raised via a timely opposition to the Demurrer. In any event, as discussed above, Plaintiff had ample opportunity to serve a motion to strike by the opposition deadline of March 14th but has failed to offer an adequate explanation for his failure to file one. (See Sect. III supra.) Finally, not only does good cause not exist to permit Plaintiff to file a motion to strike on shortened time, but granting the relief would prejudice Defendant. Currently, Plaintiff has neither filed nor served the proposed motion to strike the demurrer. (Mahdavi Decl. § 13.) Therefore, shortening the statutory notice period on Plaintiff's Motion would work a hardship on Defendant because it will not have had an adequate opportunity to review the proposed motion to strike the demurrer or the opposition to the demurrer that will surely accompany it. Vv. CONCLUSION For the foregoing reasons, the Court should deny Plaintiff's unsupported application to continue the hearing for the Demurrer. Plaintiff had ample notice of the Demurrer hearing date and there is no basis to continue the hearing. Dated: March IS, 2016 Goli Mahdavi, Attomeys for Defendant JPMORGAN CHASE BANK, N.A. SFOIDOCS\274611.1 5 JPMORGAN CHASE’S OPPOSITION TO PLAINTIFF'S EX PARTE APPLICATION FOR A CONTINUANCE