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SHEPPARD, MULLIN, RICHTER & HAMPTON LLP
A Limited Liability Partnership
Including Professional Corporations
RONALD J. HOLLAND, Cal. Bar No. 148687
BABAK G. YOUSEFZADEH, Cal. Bar No. 235974
DORNA MOINI, Cal. Bar No, 287115
Four Embarcadero Center, 17" Floor
San Francisco, California 94111-4109
Telephone: 415.434.9100
Facsimile: 415.434.3947
Attorneys for Plaintiff
ELECTRONICALLY
FILED
Superior Court of California,
County of San Francisco
03/03/2015
Clerk of the Court
BY-WILLIAM TRUPEK
Deputy Clerk
BENTLY BIOFUELS COLLECTION SERVICES LLC d/b/a BENTLY
BIOFUELS COLLECTION SERVICES, LLC,
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SAN FRANCISCO
BENTLY BIOFUELS COMPANY LLC d/b/a
BENTLY BIOFUELS COLLECTION
SERVICES, LLC,
Plaintiff,
v.
K. DAVID FISHER; 3D OIL&GREASE,
LLC; and DOES 1-25, inclusive,
Defendants.
Case No. CGC-13-535864
PLAINTIFF BENTLY BIOFUELS
COMPANY LLC dba BENTLY
BIOFUELS COLLECTION SERVICES,
LLC’S STATEMENT OF NON-
OPPOSITION IN SUPPORT OF MOTION
FOR SUMMARY JUDGMENT OR, IN
THE ALTERNATIVE, SUMMARY
ADJUDICATION
Date: March 12, 2015
Time: 9:30 a.m.
Department: 302
Reservation No. 121714-09.
SMRH:436588968,1
PLAINTIFEF’S STATEMENT OF NON-OPPOSITIONeB WN
STATEMENT OF NON-OPPOSITION
On December 23, 2014, Plaintiff Bently Biofuels Company d/b/a Bently Biofuels
Collection Services, LLC (“Bently”) filed its Motion for Summary Judgment, or in the
Alternative, Summary Adjudication (“Motion”), against Defendant K. David Fisher (“Fisher”) and
his company 3D Oil&Grease (“3D”) (collectively, “Defendants”). The Motion sought to
adjudicate the causes of action asserted in Plaintiff's Complaint (“Complaint”). The Notice of
Motion set the hearing date as March 12, 2015.
Under Code of Civil Procedure 437c(b)(2), all papers opposing a summary judgment
motion must be “served and filed not less than 14 days preceding the noticed or continued
hearing...” Code Civ. Proc. § 437c(b)(2). Accordingly, Defendants’ Opposition was due to be
filed on or before February 26, 2013. Plaintiff has not received service of any papers opposing the
Motion. A review of the Court’s website shows that Defendants have not filed any response to
Plaintiffs Motion. Accordingly, Defendants have failed to file a timely opposition to the Motion,
have failed to create a triable issue of fact, and the Court should grant the Motion in its entirety.
The Court also has discretion to grant the Motion due solely to Defendants’ failure to file
an opposition to the separate statement. Code of Civil Procedure section 437c(b)(3) provides in
relevant part:
The opposition papers shall include a separate statement that
responds to each of the material facts contended by the moving party
to be undisputed, indicating whether the opposing party agrees or
disagrees that those facts are undisputed....Each material fact
contended by the opposing party to be disputed shall be followed by
a reference to the supporting evidence. Failure to comply with this
requirement of a separate statement may constitute a sufficient
ground, in the court’s discretion, for granting the motion.
Code Civ. Proc. § 437c(b)(3)(emphasis added). Courts have held that the failure to file a separate
statement constitutes grounds to grant a motion for summary judgment once the moving party
meets its initial burden of presenting a prima facie case. Blackman v. Burrows, 193 Cal. App. 3d
889, 894 (1987) (affirming, under Section 437(b)(3), trial court where it exercised its discretion to
grant a motion for summary judgment granted when no opposition separate statement was filed);
Teselle v. McLoughlin, 173 Cal. App. 4th 156, 170 (2009) (holding that, under the 1993
-1-
SMRH-436588968,1 PLAINTIFFS STATEMENT OF NON-OPPOSITIONamendments to Section 437c, the discretion to grant a summary judgment motion based on failure
to file an opposition separate statement applies once the moving party meets its burden of showing
a prima facie case to show the nonexistence of a triable issue of material fact).
Defendants have failed to produce any admissible evidence showing any of the
facts in Plaintiff's Motion are disputed. As such, they should be precluded from arguing that these
facts are disputed. Therefore, in accordance with Section 437(b)(3), Defendants’ failure to file an
opposition separate statement provides an additional ground upon which this Court can grant the
Motion.
As Plaintiff has established its right to summary judgment on the Complaint, and
with Defendants failing to file or serve any opposition, including any opposition to the separate
statement, the Court should grant the Motion and enter judgment for Plaintiff for the reasons set
forth in Plaintiff's moving papers.
Dated: March 3, 2015
Respectfully submitted,
SHEPPARD, MULLIN, RICHTER & HAMPTON LLP
By
RONALD J. HOLLAND
BABAK YOUSEFZADEH
DORNA MOINI
SHEPPARD, MULLIN, RICHTER & HAMPTON LLP
Attorneys for Bently Biofuels Collection Services
-2-
SMRIi436588968.1 PLAINTIFF°S STATEMENT OF NON-OPPOSITIONPROOF OF SERVICE
STATE OF CALIFORNIA, COUNTY OF SAN FRANCISCO
At the time of service, I was over 18 years of age and not a party to this action. [am
employed in the County of San Francisco, State of California. My business address is Four
Embarcadero Center, 17th Floor, San Francisco, CA 94111-4109.
On March 3, 2015, I served true copies of the following document(s) described as
COMPANY LLC dba BENTLY BIOFUELS COLLECTION SERVICES, LLC’S
STATEMENT OF NON-OPPOSITION IN SUPPORT OF MOTION FOR SUMMARY
JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION on the
interested parties in this action as follows:
K. David Fisher
3D Oil & Grease LLC
74 Kelloch Avenue
San Francisco, CA 94134
a BY FEDEX: I enclosed said document(s) in an envelope or package provided by FedEx
and addressed to the persons at the addresses listed in the Service List. I placed the
envelope or package for collection and overnight delivery at an office or a regularly
utilized drop box of FedEx or delivered such document(s) to a courier or driver authorized
by FedEx to receive documents.
I declare under penalty of perjury under the laws of the State of California that the
foregoing is true and correct.
Executed on March 3, 2015, at San Francisco, California.
Iris Leal
SMRH:436588908.1 PLAINTIFF’S STATEMENT OF NON-OPPOSITION
Preview
Co en nN 10 11 12 13 14 15 16 17 18 19 20 21 2 23 24 25 26 27 28 SHEPPARD, MULLIN, RICHTER & HAMPTON LLP A Limited Liability Partnership Including Professional Corporations RONALD J. HOLLAND, Cal. Bar No. 148687 BABAK G. YOUSEFZADEH, Cal. Bar No. 235974 DORNA MOINI, Cal. Bar No, 287115 Four Embarcadero Center, 17" Floor San Francisco, California 94111-4109 Telephone: 415.434.9100 Facsimile: 415.434.3947 Attorneys for Plaintiff ELECTRONICALLY FILED Superior Court of California, County of San Francisco 03/03/2015 Clerk of the Court BY-WILLIAM TRUPEK Deputy Clerk BENTLY BIOFUELS COLLECTION SERVICES LLC d/b/a BENTLY BIOFUELS COLLECTION SERVICES, LLC, SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN FRANCISCO BENTLY BIOFUELS COMPANY LLC d/b/a BENTLY BIOFUELS COLLECTION SERVICES, LLC, Plaintiff, v. K. DAVID FISHER; 3D OIL&GREASE, LLC; and DOES 1-25, inclusive, Defendants. Case No. CGC-13-535864 PLAINTIFF BENTLY BIOFUELS COMPANY LLC dba BENTLY BIOFUELS COLLECTION SERVICES, LLC’S STATEMENT OF NON- OPPOSITION IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION Date: March 12, 2015 Time: 9:30 a.m. Department: 302 Reservation No. 121714-09. SMRH:436588968,1 PLAINTIFEF’S STATEMENT OF NON-OPPOSITIONeB WN STATEMENT OF NON-OPPOSITION On December 23, 2014, Plaintiff Bently Biofuels Company d/b/a Bently Biofuels Collection Services, LLC (“Bently”) filed its Motion for Summary Judgment, or in the Alternative, Summary Adjudication (“Motion”), against Defendant K. David Fisher (“Fisher”) and his company 3D Oil&Grease (“3D”) (collectively, “Defendants”). The Motion sought to adjudicate the causes of action asserted in Plaintiff's Complaint (“Complaint”). The Notice of Motion set the hearing date as March 12, 2015. Under Code of Civil Procedure 437c(b)(2), all papers opposing a summary judgment motion must be “served and filed not less than 14 days preceding the noticed or continued hearing...” Code Civ. Proc. § 437c(b)(2). Accordingly, Defendants’ Opposition was due to be filed on or before February 26, 2013. Plaintiff has not received service of any papers opposing the Motion. A review of the Court’s website shows that Defendants have not filed any response to Plaintiffs Motion. Accordingly, Defendants have failed to file a timely opposition to the Motion, have failed to create a triable issue of fact, and the Court should grant the Motion in its entirety. The Court also has discretion to grant the Motion due solely to Defendants’ failure to file an opposition to the separate statement. Code of Civil Procedure section 437c(b)(3) provides in relevant part: The opposition papers shall include a separate statement that responds to each of the material facts contended by the moving party to be undisputed, indicating whether the opposing party agrees or disagrees that those facts are undisputed....Each material fact contended by the opposing party to be disputed shall be followed by a reference to the supporting evidence. Failure to comply with this requirement of a separate statement may constitute a sufficient ground, in the court’s discretion, for granting the motion. Code Civ. Proc. § 437c(b)(3)(emphasis added). Courts have held that the failure to file a separate statement constitutes grounds to grant a motion for summary judgment once the moving party meets its initial burden of presenting a prima facie case. Blackman v. Burrows, 193 Cal. App. 3d 889, 894 (1987) (affirming, under Section 437(b)(3), trial court where it exercised its discretion to grant a motion for summary judgment granted when no opposition separate statement was filed); Teselle v. McLoughlin, 173 Cal. App. 4th 156, 170 (2009) (holding that, under the 1993 -1- SMRH-436588968,1 PLAINTIFFS STATEMENT OF NON-OPPOSITIONamendments to Section 437c, the discretion to grant a summary judgment motion based on failure to file an opposition separate statement applies once the moving party meets its burden of showing a prima facie case to show the nonexistence of a triable issue of material fact). Defendants have failed to produce any admissible evidence showing any of the facts in Plaintiff's Motion are disputed. As such, they should be precluded from arguing that these facts are disputed. Therefore, in accordance with Section 437(b)(3), Defendants’ failure to file an opposition separate statement provides an additional ground upon which this Court can grant the Motion. As Plaintiff has established its right to summary judgment on the Complaint, and with Defendants failing to file or serve any opposition, including any opposition to the separate statement, the Court should grant the Motion and enter judgment for Plaintiff for the reasons set forth in Plaintiff's moving papers. Dated: March 3, 2015 Respectfully submitted, SHEPPARD, MULLIN, RICHTER & HAMPTON LLP By RONALD J. HOLLAND BABAK YOUSEFZADEH DORNA MOINI SHEPPARD, MULLIN, RICHTER & HAMPTON LLP Attorneys for Bently Biofuels Collection Services -2- SMRIi436588968.1 PLAINTIFF°S STATEMENT OF NON-OPPOSITIONPROOF OF SERVICE STATE OF CALIFORNIA, COUNTY OF SAN FRANCISCO At the time of service, I was over 18 years of age and not a party to this action. [am employed in the County of San Francisco, State of California. My business address is Four Embarcadero Center, 17th Floor, San Francisco, CA 94111-4109. On March 3, 2015, I served true copies of the following document(s) described as COMPANY LLC dba BENTLY BIOFUELS COLLECTION SERVICES, LLC’S STATEMENT OF NON-OPPOSITION IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION on the interested parties in this action as follows: K. David Fisher 3D Oil & Grease LLC 74 Kelloch Avenue San Francisco, CA 94134 a BY FEDEX: I enclosed said document(s) in an envelope or package provided by FedEx and addressed to the persons at the addresses listed in the Service List. I placed the envelope or package for collection and overnight delivery at an office or a regularly utilized drop box of FedEx or delivered such document(s) to a courier or driver authorized by FedEx to receive documents. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on March 3, 2015, at San Francisco, California. Iris Leal SMRH:436588908.1 PLAINTIFF’S STATEMENT OF NON-OPPOSITION