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WALLACE C. DOOLITTLE (SBN 158116)
JAMES P. DOWNS (SBN 139489)
LAW OFFICES OF WALLACE C. DOOLITTLE ELECTRONICALLY
1260 B Street, Suite 220 F I L E D
Hayward, California 94541 Superior Court of California,
County of San Francisco
TELEPHONE: (510) 888-0600 12/02/2021
FACSIMILE: (510) 888-0606 Clerk of the Court
EMAIL: doolittlewgdoolittlelaw.corn BY: ERNALYN BURA
Deputy Clerk
Attorneys for Cross-Complainant ELLEN TSANG,
as trustee for the ARZA TRUST
SUPERIOR COURT OF CALIFORNIA
COUNTY OF SAN FRANCISCO
(Unlimited Jurisdiction)
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CHARLES ENGELBERG,
Case No: CGC-13-532835
12 Plaintiff,
DECLARATION OF JAMES P.
13 DOWNS IN SUPPORT OF CROSS-
COMPLAINANT7S OPPOSITION TO
14 CROSS-DEFENDANT'S MOTION TO
ELLEN TSANG, as trustee of the ARZA COMPEL DEPOSITION
15 TRUST, et al.
Date: November 30, 2021
16 Time: 9:30 a.m.
Defendants. Dept: 206 — Presiding Judge
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AND RELATED CROSS-COMPLAINT
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21 I, James P. Downs, declare as follows:
22 l. I am an attorney with the Law Offices of Wallace C. Doolittle, legal counsel I'o r
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Cross-Complainant ELLEN TSANG, as trustee for the ARZA TRUST.
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2. This declaration is made based upon my own personal knowledge and if called
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upon to do so, I could and would testify competently to the matters set forth herein.
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DECLARATION OF JAMES P. DOWNS IN SUPPORT Ol'ROSS-COMPLAINANT'S
OPPOSITION TO CROSS-DEFENDANT'S MOTION TO COMPEL DEPOSITION
3. The original complaint in the underlying action was filed by Cross-defendant
Charles Engelberg on July 15, 2013. Ellen Tsang, as trustee of the Arza Trust, filed the Cross-
complainant on November 27, 2021 for Cross-defendant's trespass and nuisance. The matter
involved a dispute between next door neighbor Cross-defendant and Cross-complainant. Cross-
defendant is the owner of 767 North Point Street in San Francisco, California. Cross-complainant
is the owner of the house next door located at 769 North Point Street.
4. This entire action matter stayed for three and a half years while another related
matter was under appeal. The stay was lifted on approximately May 22, 2019.
10 cross-complaint on
5. The Court granted leave to file the supplemental October 7,
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2019. The cross-complaint was filed on October 8, 2019. On December 9, 2019, Cross-defendant
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Charles Engelberg filed a demurrer to the supplemental cross-complaint which was overruled on
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14 February 25, 2020. The supplemental cross-complaint contained allegations of new trespasses
15 and nuisances that occurred on May 30, 2019 when Cross-defendant installed his front gate into
16 Cross-complainant's retaining wall.
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6. On January 14, 2021, the court continued the trial of this matter to December 6,
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2021 pursuant to stipulation between the parties.
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7. On September 24, 2021, nearly two years after the supplemental cross-complaint
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21 was filed and approximately seventy-three (73) days before trial, Cross-defendant served a notice
22 of deposition upon Ellen Tsang, as an individual in this matter. Ellen Tsang is not a party to this
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action. Cross-defendant sued her as trustee of the Arza Trust (the owner of 769 North Point
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Street) The deposition was noticed for October 29, 2021. The notice of deposition contained a
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18 requests for production of documents, many of which referenced an October 13, 2015 Order
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27 granting Preliminary Injunction and a San Francisco Dopartmcnt of Building Inspection Notice
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DECLARATION OF JAMES P. DOWNS IN SUPPORT OF CROSS-COMPLAINANT'S
OPPOSITION TO CROSS-DEFENDANT'S MOTION TO COMPEL DEPOSITION
of Violation issued on Cross-defendant's property (both of which were attached to the Notice of
Deposition. (See Moving Party, Cross-defendant Counsel Marisa D'Amico's Declaration,
Exhibit A)
8. On October 25, 2021, Cross-complainant objected to the deposition on the
grounds that she had previously had her deposition taken pursuant to Code of Civil Procedure
)2025.610 which only allows one deposition of a party. (See Moving Party, Cross-defendant
Counsel Marisa D'Amico's Declaration, Exhibit B)
9. The parties immediately met and conferred beginning on October 26th, but were
10 able resolve this discovery Cross-defendant
not to dispute. was required to have a motion to
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compel the deposition of Cross-complainant heard no later than November 19, 2021 pursuant to
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Code of Civil Procedure II2024.020 fifteen-day discovery motion cut-off.
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10. Cross-defendant would have been able to file a regularly noticed motion to
15 compel the deposition on October 27, 2021 pursuant to Code of Civil Procedure II1005(b), to be
16 heard on the November 19 discovery motion cut-off or, in the alternative, to proceed with an
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application for an order shortening time to hear the motion prior to the discovery motion cut-off.
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11. Rather than proceed to have a motion to compel heard prior to the discovery
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motion cut-off, Cross-defendant neglected the matter, the discovery motion cut-off past on
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21 November 19, 2021.
22 12. On December 1, 2021, five days before trial, and twelve days after the discovery
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motion cut-off, Cross-defendant made an ex parte application in Department 501 for an order
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shortening time to hear a motion to compel Cross-complainant's deposition. At the hearing, the
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court took the matter under submission, but thereafter determined to grant the application for an
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27 order shortening time to be heard on December 6, 2021 — the date this matter is set for trial
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DECLARATION OF JAMES P. DOWNS IN SUPPORT OF CROSS-COMPLAINANT'S
OPPOSITION TO CROSS-DEFENDANT*S MOTION TO COMPEL DEPOSITION
13. The date for this subject motion to compel is on the same day this matter is set for
trial. If it is granted, it will cause Cross-complainant substantial prejudice because it will require
Cross-complainant to submit to deposition while she would otherwise be preparing for trial and
attending trial.
14. The motion to compel the deposition should be denied based upon Cross-
defendant's dilatory neglect in moving for the motion to compel well after the discovery motion
cut-off, on the eve of trial, and for the substantial prejudice Cross-defendant will suffer in the
event she is required to submit to deposition while in trial.
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I declare that the foregoing is true and correct and that this declaration was executed
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under the penalty of perjury under the laws of the State of California on December 2, 2021 at
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Hayward, California.
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James P. Downs
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DECLARATION OF JAMES P. DOWNS IN SUPPORT OF CROSS-COMPLAINANT'S
OPPOSITION TO CROSS-DEFENDANT'S MOTION TO COMPEL DEPOSITION
I am employed in Alameda County, California, and am over the age of eighteen years and
not a party to the within entitled action. My business address is 1260 B Street, Suite 220,
Hayward, California 94541.
On December 2, 2021 I served the following in regard to case number CGC-13-532835
For the Superior Court of California
County of San Francisco
Declaration of James P. Downs in Support of Cross-Complainant's Opposition to Cross-
Defendant's Motion to Compel Deposition
on the interested party(ies) in this action by emailing true copies thereof to the addresses as
follows and by placing true copies thereof enclosed in sealed envelopes and/or packages
addressed as follows:
Art Casey
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Marisa D'Amico
FORD, WALKER, HAGGERTY tk BEHAR, LLP
16450 Los Gatos Blvd., Suite 110
12 Los Gatos, CA 95060
13 EMAIL: acasev(kfwhb.corn, mdamico(kfwhb.corn
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BY EMAIL: (email addresses listed above)
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BY U.S. MAIL: I placed the envelope for collection and processing for mailing following this
16 business's ordinary business practice with which I am readily familiar. On the satne day
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correspondence is placed for collection and mailing, it is deposited in the ordinary course of
business with the United States Postal Service.
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I declare under penalty of perjury under the laws of the State of California that the
19 forgoing is a true and correct statement and that this Proof of Service was executed
20 on December 2, 2021.
21 By&@n-
Daniel Etler
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PROOF OF SERVICE BY OVERNIGHT DELIVERY
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WALLACE C. DOOLITTLE (SBN 158116) JAMES P. DOWNS (SBN 139489) LAW OFFICES OF WALLACE C. DOOLITTLE ELECTRONICALLY 1260 B Street, Suite 220 F I L E D Hayward, California 94541 Superior Court of California, County of San Francisco TELEPHONE: (510) 888-0600 12/02/2021 FACSIMILE: (510) 888-0606 Clerk of the Court EMAIL: doolittlewgdoolittlelaw.corn BY: ERNALYN BURA Deputy Clerk Attorneys for Cross-Complainant ELLEN TSANG, as trustee for the ARZA TRUST SUPERIOR COURT OF CALIFORNIA COUNTY OF SAN FRANCISCO (Unlimited Jurisdiction) 10 CHARLES ENGELBERG, Case No: CGC-13-532835 12 Plaintiff, DECLARATION OF JAMES P. 13 DOWNS IN SUPPORT OF CROSS- COMPLAINANT7S OPPOSITION TO 14 CROSS-DEFENDANT'S MOTION TO ELLEN TSANG, as trustee of the ARZA COMPEL DEPOSITION 15 TRUST, et al. Date: November 30, 2021 16 Time: 9:30 a.m. Defendants. Dept: 206 — Presiding Judge 17 18 AND RELATED CROSS-COMPLAINT 19 20 21 I, James P. Downs, declare as follows: 22 l. I am an attorney with the Law Offices of Wallace C. Doolittle, legal counsel I'o r 23 Cross-Complainant ELLEN TSANG, as trustee for the ARZA TRUST. 24 2. This declaration is made based upon my own personal knowledge and if called 25 upon to do so, I could and would testify competently to the matters set forth herein. 26 27 28 1 DECLARATION OF JAMES P. DOWNS IN SUPPORT Ol'ROSS-COMPLAINANT'S OPPOSITION TO CROSS-DEFENDANT'S MOTION TO COMPEL DEPOSITION 3. The original complaint in the underlying action was filed by Cross-defendant Charles Engelberg on July 15, 2013. Ellen Tsang, as trustee of the Arza Trust, filed the Cross- complainant on November 27, 2021 for Cross-defendant's trespass and nuisance. The matter involved a dispute between next door neighbor Cross-defendant and Cross-complainant. Cross- defendant is the owner of 767 North Point Street in San Francisco, California. Cross-complainant is the owner of the house next door located at 769 North Point Street. 4. This entire action matter stayed for three and a half years while another related matter was under appeal. The stay was lifted on approximately May 22, 2019. 10 cross-complaint on 5. The Court granted leave to file the supplemental October 7, 11 2019. The cross-complaint was filed on October 8, 2019. On December 9, 2019, Cross-defendant 12 Charles Engelberg filed a demurrer to the supplemental cross-complaint which was overruled on 13 14 February 25, 2020. The supplemental cross-complaint contained allegations of new trespasses 15 and nuisances that occurred on May 30, 2019 when Cross-defendant installed his front gate into 16 Cross-complainant's retaining wall. 17 6. On January 14, 2021, the court continued the trial of this matter to December 6, 18 2021 pursuant to stipulation between the parties. 19 7. On September 24, 2021, nearly two years after the supplemental cross-complaint 20 21 was filed and approximately seventy-three (73) days before trial, Cross-defendant served a notice 22 of deposition upon Ellen Tsang, as an individual in this matter. Ellen Tsang is not a party to this 23 action. Cross-defendant sued her as trustee of the Arza Trust (the owner of 769 North Point 24 Street) The deposition was noticed for October 29, 2021. The notice of deposition contained a 25 18 requests for production of documents, many of which referenced an October 13, 2015 Order 26 27 granting Preliminary Injunction and a San Francisco Dopartmcnt of Building Inspection Notice 28 2 DECLARATION OF JAMES P. DOWNS IN SUPPORT OF CROSS-COMPLAINANT'S OPPOSITION TO CROSS-DEFENDANT'S MOTION TO COMPEL DEPOSITION of Violation issued on Cross-defendant's property (both of which were attached to the Notice of Deposition. (See Moving Party, Cross-defendant Counsel Marisa D'Amico's Declaration, Exhibit A) 8. On October 25, 2021, Cross-complainant objected to the deposition on the grounds that she had previously had her deposition taken pursuant to Code of Civil Procedure )2025.610 which only allows one deposition of a party. (See Moving Party, Cross-defendant Counsel Marisa D'Amico's Declaration, Exhibit B) 9. The parties immediately met and conferred beginning on October 26th, but were 10 able resolve this discovery Cross-defendant not to dispute. was required to have a motion to 11 compel the deposition of Cross-complainant heard no later than November 19, 2021 pursuant to 12 Code of Civil Procedure II2024.020 fifteen-day discovery motion cut-off. 13 14 10. Cross-defendant would have been able to file a regularly noticed motion to 15 compel the deposition on October 27, 2021 pursuant to Code of Civil Procedure II1005(b), to be 16 heard on the November 19 discovery motion cut-off or, in the alternative, to proceed with an 17 application for an order shortening time to hear the motion prior to the discovery motion cut-off. 18 11. Rather than proceed to have a motion to compel heard prior to the discovery 19 motion cut-off, Cross-defendant neglected the matter, the discovery motion cut-off past on 20 21 November 19, 2021. 22 12. On December 1, 2021, five days before trial, and twelve days after the discovery 23 motion cut-off, Cross-defendant made an ex parte application in Department 501 for an order 24 shortening time to hear a motion to compel Cross-complainant's deposition. At the hearing, the 25 court took the matter under submission, but thereafter determined to grant the application for an 26 27 order shortening time to be heard on December 6, 2021 — the date this matter is set for trial 28 3 DECLARATION OF JAMES P. DOWNS IN SUPPORT OF CROSS-COMPLAINANT'S OPPOSITION TO CROSS-DEFENDANT*S MOTION TO COMPEL DEPOSITION 13. The date for this subject motion to compel is on the same day this matter is set for trial. If it is granted, it will cause Cross-complainant substantial prejudice because it will require Cross-complainant to submit to deposition while she would otherwise be preparing for trial and attending trial. 14. The motion to compel the deposition should be denied based upon Cross- defendant's dilatory neglect in moving for the motion to compel well after the discovery motion cut-off, on the eve of trial, and for the substantial prejudice Cross-defendant will suffer in the event she is required to submit to deposition while in trial. 10 I declare that the foregoing is true and correct and that this declaration was executed 11 under the penalty of perjury under the laws of the State of California on December 2, 2021 at 12 Hayward, California. 13 14 James P. Downs 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DECLARATION OF JAMES P. DOWNS IN SUPPORT OF CROSS-COMPLAINANT'S OPPOSITION TO CROSS-DEFENDANT'S MOTION TO COMPEL DEPOSITION I am employed in Alameda County, California, and am over the age of eighteen years and not a party to the within entitled action. My business address is 1260 B Street, Suite 220, Hayward, California 94541. On December 2, 2021 I served the following in regard to case number CGC-13-532835 For the Superior Court of California County of San Francisco Declaration of James P. Downs in Support of Cross-Complainant's Opposition to Cross- Defendant's Motion to Compel Deposition on the interested party(ies) in this action by emailing true copies thereof to the addresses as follows and by placing true copies thereof enclosed in sealed envelopes and/or packages addressed as follows: Art Casey 10 Marisa D'Amico FORD, WALKER, HAGGERTY tk BEHAR, LLP 16450 Los Gatos Blvd., Suite 110 12 Los Gatos, CA 95060 13 EMAIL: acasev(kfwhb.corn, mdamico(kfwhb.corn 14 BY EMAIL: (email addresses listed above) 15 BY U.S. MAIL: I placed the envelope for collection and processing for mailing following this 16 business's ordinary business practice with which I am readily familiar. On the satne day 17 correspondence is placed for collection and mailing, it is deposited in the ordinary course of business with the United States Postal Service. 18 I declare under penalty of perjury under the laws of the State of California that the 19 forgoing is a true and correct statement and that this Proof of Service was executed 20 on December 2, 2021. 21 By&@n- Daniel Etler 22 23 24 25 26 27 28 PROOF OF SERVICE BY OVERNIGHT DELIVERY