Preview
LAw OFFICES 0F MARGARITA SALAZAR, APLC E-FILED
Margarita Salazar, Esq. (SBN 224649)
4/20/2018 4:35 PM
333 H Street, Suite 5000
Chula Vista, California 91910 FRESNO COUNTY SUPERIOR COURT
Telephone: (619) 55 1-7023-9578 By: C. Cogburn, Deputy
Facsimile: (877) 264-4695
Email: margarita@msalazarlaw.com
OWNQUIAWN—l
Attorney for Plaintiff Surjit Bagga
SUPERIOR COURT OF THE STATE 0F CALIFORNIA
FOR THE COUNTY 0F FRESNO
SURHT BAGGA, Case No: 16CECG03336
PLAINTIFF, PLAINTIFF SURJIT BAGGA’S
EX PARTE APPLICATION TO
vs.
SUBSTITUTE DOE UNDER CCP 474;
MEMORANDUM OF POINTS AND
AUTHORITIES; AND
CITY NATIONAL BANK; DECLARATION 0F MARGARITA
FRESNO MANAGEMENT COMPANY, a SALAZAR
California Comoration;
Ra! Hutchins, an individual;
James Kruse, an individual;
and DOES 1- 1 00, INCLUSIVE, Hearing Date: April 24, 2018
NNNNNNNNNHH—Iv—‘u—mt—Ip—ar—I—t
Hearing Time: 3:30 p.m.
DEFENDANTS. Hearing Location: Dept. 402,
vvvvvvvvvvvvvvvvvvvvvvvvvvvv
1130 “O” Street, Fresno, CA 93724
Judge: Hon. Jeffrey Hamilton
OONQUIAMN—‘OOWNQMAWN—‘O
EX PARTE APPLICATION
l
TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:
PLEASE TAKE NOTICE that pursuant to California Rules of Court, Rule 3.1200
through 3.1207, on April 24, 2018 at 3:30 p.m., or as soon thereafter as this matter may be heard
in Department 402 of the above—entitled Court, the Honorable Jeffrey Hamilton presiding,
OOOVGMAUJN
Plaintiff Surjit Bagga (“Bagga”), will and hereby does move ex pane for an order GRANTING
PLAINTIFF LEAVE TO AMEND THE COMPLAINT TO SUBSTITUTE “DOE 1” WITH
“FRESNO PROPERTY MANAGEMENT, CORP.” AS A DEFENDANT in this action.
The basis for this ex parte is that Plaintiff had erroneously previously sued defendant as
“Fresno Management Company” but subsequently learned that the true party in interest in this
10
matter is “Fresno Prepeny Management, Corp.” While their names are very similar, these are
11
two separate and distinct entities.
12
This application is further made based on concurrently filed Memorandum of Points and
13
Authorities in support of this application, the declaration of Margarita Salazar, filed concurrently
14
herewith, the oral argument and any additional facts presented by Marti’s counsel at the hearing,
15
as well as the complete files and records of this action.
16
17
A. COMPLIANCE WITH RULE 3.1202(a)
18
Rule 3.1202 (a) — Identification of Attorney or Party. In addition to the attorneys
19
bringing this application, the names, addresses and telephone numbers of the attorneys known to
20
the applicant to be an attorney for any party in this matter are as follows:
21
l. G. Andrew Slater 0F DOWLING AARON, 8080 N. PALM AVENUE, THIRD FLOOR,
22
FRESNO, CA 9371 l (559) 432—4500.
23
24 B. COMPLIANCE WITH RULE 3.1202(b)
25 Rule 3.1202 (b) - Disclosure of Previous Applications. Plaintiff has made no prior
26 applications in this action requesting the same relief.
27
28
EX PARTE APPLICATION
2
C. COMPLIANCE WITH RULE 3.1202(c)
Rule 3.1202 (c)
— Affirmative Factual Showing. As set forth herein above and in the
attached Declaration of Margarita Salazar in support of this Application, Plaintiff had previously
#UJN
erroneously sued the defendant under the wrong name. This error was based with a mistake
caused by the similarity in the parties’ names. As set forth in the concurrently filed Declaration
of Margarita Salazar, unless the properly named defendant is added to this case, Plaintiff will
suffer irreparable harm. It is also more efficient to resolve this matter on an ex parte given that
OOOOVONM
the request is limited to leave to add in a DOE defendant.
D. COMPLIANCE WITHRULE 3.1203 & 3.1204
As set forth in the concurrently filed Declaration of Margarita Salazar, all parties to this
11
action were previously notified of this ex parte application as required under Rules 3.1203 and
12
3.1204. Specifically, notice was provided on April l9, 2018 at 11:17 a.m via email, a true and
13
14
correct copy of the notice is attached to the Declaration of Margarita Salazar as EXHIBIT A.
15 Opposing party stated that he did not object to this application.
16 The applicant informed opposing pany where and when the application would be made
17 within the applicable time under Rule 3.1203.
18
19 Respectfully submitted,
20
DATED: April 20, 201 8 LAw OFFICES 0F MARGARITA SALAZAR,
21
A PROFESSIONAL LAW CORPORATION
22
23
24
25
26
27
28
EX PARTE APPLICATION
3
MEMORANDUM 0F POINTS AND AUTHORITIES
I. INTRODUCTION.
Plaintiff, Surjit Bagga, hereby submits this ex parte application to substitute DOE 1
\OOOQQUIAUJNu—n
under California Code of Civil Procedure section 474. Plaintiff had initially sued and served a
pany she believed to be the correct party, but subsequently came to learn that the sued party
(Fresno Management Company) was not in fact the correct party. Instead, the party to who the
allegations pertain is called Fresno Property Management Corp. Having since learned of this
error, Plaintiff now seeks to substitute in Fresno Property Management Corp. as a named
defendant in this case that was previously sued as DOE l.
II. LEGAL ARGUMENT.
A. Pursuant to Califomia Code ofCivil Procedure 473(a), the Court May Permit
Parties to Amend their Pleadings
California Code of Civil Procedure §473(a)(1) permits the court, in furtherance of
justice, and upon any terms as may be proper, to allow any party to amend their pleadings.
In the present case, causes of action existed as to Fresno Property Management Corp, but as
NNNNNNNNNwt—tb—AH—n—np—Ip—Iu—tfl
described in the attached declaration this remained unknown until after the other named
defendant (Fresno Management Company) responded to the Complaint and notified counsel of
mQQMAWNHoomNQMAWNHO
the mistake in identity. The allegations previously alleged as against the erroneously sued
Fresno Management Company should have been alleged against Fresno Property Management,
Corp.
The Plaintiff, having designated a defendant in the complaint by the incorrect name of
DOE 1, and having discovered the true name ofthe defendant to be FRESNO PROPERTY
MANAGEMENT, CORP. hereby requests that the Court permit Plaintiffto amend the operative
complaint in this matter, Plaintiff’s Second Amended Complaint (“SAC”), by substituting the
true name for the incorrect name wherever it appears in the SAC.
EX PARTE APPLICATION
4
III. CONCLUSION.
For these reasons, and the reasons expressed in the attached Declaration, Plaintiff
requests leave of this court to amend the Second Amended Complaint by substituting the
A incorrect name of “DOE 1” with Fresno Property Management. Corp.
Respectfully submitted,
\OOO\IO\UI
Date: October 25, 2017
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
EX PARTE APPLICATION
5
DECLARATION OF MARGARITA SALAZAR
I, MARGARITA SALAZAR, declare as follows:
#UJN
l. I am an attorney licensed to practice before all courts of the State of California,
and I am the principal of my firm The Law Offices of Margarita Salazar, A Professional Law
Corporation. I am lead counsel of record for Plaintiff Surjit Bagga (“Ms. Bagga” or
“Plaintiff”) in the instant action filed in the Superior Court of the State of California for the
County of Fresno, Case Number 16CECG03336 (the “Action”). The matters stated in this
OKOOONQUI
declaration are personally known to me, and if called as a witness, I could and would
competently testify to the matters stated herein.
2. In this action, Plaintiff had previously erroneously sued the defendant under the
wrong name. Plaintiff initially erroneously sued: “Fresno Management Company.” This
11
error was based with a mistake caused by the similarity in the parties’ names.
12
3. Based on information and belief, the true name of the defendant is: “Fresno
13
Property Management, Corp.”
14
4. Unless the properly named defendant is added to this case, Plaintiff will suffer
15
irreparable harm in that Plaintiff will not be able to name the correct party in this lawsuit from
16
whom she seeks damages.
17
5. It is also more efficient to resolve this matter on an ex parte basis given that the
18
request is limited to leave to add in a DOE defendant and not t0 specifically amend the entire
19
complaint in any other way.
20 6. I gave ex parte notice to opposing counsel, Mr. G. Andrew Slater via email on
21 4/ 19/2018. Mr. Slater responded to my email by indicating that he had “No objection” to our
22 ex parte request.
23 I declare under penalty of perjury under the laws of the State of California that the
24
25
26
27
28
EX PARTE APPLICATION
6
PROOF OF SERVICE
I am employed County of San Diego, State of California. I am over the age of 18
in the
#UJN
and not a party to the within action. My business address is 333 H Street, Suite 5000, Chula
Vista, California 91910.
On April 20, 2018,] served to the persons identified below at the stated address(es) the
following document(s) described as:
1. PLAINTIFF SURJIT BAGGA’S EX PARTE APPLICATION T0
SUBSTITUTE DOE UNDER CCP 474; MEMORANDUM OF
POINTS AND AUTHORITIES; AND DECLARATION OF
\OOONOUI
MARGARITA SALAZAR
As follows:
10
g (BY MAIL) I placed the original or a true copy of the foregoing document in a
sealed envelope addressed to each interested party as set forth above. I deposited each such
11
envelope, with postage thereon fully prepaid, in an official Unites States Postal Service mailbox
12 at a United States Post Office facility in San Diego, California for certified mail with return
receipt requested.
13
14
E (BY EMAIL) As a courtesy the party(ies) being served, I caused an electronic
transmission of the above-described documents to be sent to the email addresses listed below
15
G. Andrew Slater, Esq. Attorneys for Defendant:
16 DOWLING AARON INCORPORATED CITY NATIONAL BANK
8080 North Palm Avenue, Third Floor
17 PO BOX 28902
Fresno, CA 93729—8902
18 Telephone: 559—432—4500
Fax: 559-432—4590
19 Email: aslater@dowlingaaron.com
20
21
Executed on April 20, 201 8, at Chula Vista, California.
22
I declare under penalty of perjury under the laws of the State of California that the
23 foregoing is true and correct.
24
25
Cel te La na
26
27
28
EX PARTE APPLICATION
l
Preview
LAw OFFICES 0F MARGARITA SALAZAR, APLC E-FILED Margarita Salazar, Esq. (SBN 224649) 4/20/2018 4:35 PM 333 H Street, Suite 5000 Chula Vista, California 91910 FRESNO COUNTY SUPERIOR COURT Telephone: (619) 55 1-7023-9578 By: C. Cogburn, Deputy Facsimile: (877) 264-4695 Email: margarita@msalazarlaw.com OWNQUIAWN—l Attorney for Plaintiff Surjit Bagga SUPERIOR COURT OF THE STATE 0F CALIFORNIA FOR THE COUNTY 0F FRESNO SURHT BAGGA, Case No: 16CECG03336 PLAINTIFF, PLAINTIFF SURJIT BAGGA’S EX PARTE APPLICATION TO vs. SUBSTITUTE DOE UNDER CCP 474; MEMORANDUM OF POINTS AND AUTHORITIES; AND CITY NATIONAL BANK; DECLARATION 0F MARGARITA FRESNO MANAGEMENT COMPANY, a SALAZAR California Comoration; Ra! Hutchins, an individual; James Kruse, an individual; and DOES 1- 1 00, INCLUSIVE, Hearing Date: April 24, 2018 NNNNNNNNNHH—Iv—‘u—mt—Ip—ar—I—t Hearing Time: 3:30 p.m. DEFENDANTS. Hearing Location: Dept. 402, vvvvvvvvvvvvvvvvvvvvvvvvvvvv 1130 “O” Street, Fresno, CA 93724 Judge: Hon. Jeffrey Hamilton OONQUIAMN—‘OOWNQMAWN—‘O EX PARTE APPLICATION l TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that pursuant to California Rules of Court, Rule 3.1200 through 3.1207, on April 24, 2018 at 3:30 p.m., or as soon thereafter as this matter may be heard in Department 402 of the above—entitled Court, the Honorable Jeffrey Hamilton presiding, OOOVGMAUJN Plaintiff Surjit Bagga (“Bagga”), will and hereby does move ex pane for an order GRANTING PLAINTIFF LEAVE TO AMEND THE COMPLAINT TO SUBSTITUTE “DOE 1” WITH “FRESNO PROPERTY MANAGEMENT, CORP.” AS A DEFENDANT in this action. The basis for this ex parte is that Plaintiff had erroneously previously sued defendant as “Fresno Management Company” but subsequently learned that the true party in interest in this 10 matter is “Fresno Prepeny Management, Corp.” While their names are very similar, these are 11 two separate and distinct entities. 12 This application is further made based on concurrently filed Memorandum of Points and 13 Authorities in support of this application, the declaration of Margarita Salazar, filed concurrently 14 herewith, the oral argument and any additional facts presented by Marti’s counsel at the hearing, 15 as well as the complete files and records of this action. 16 17 A. COMPLIANCE WITH RULE 3.1202(a) 18 Rule 3.1202 (a) — Identification of Attorney or Party. In addition to the attorneys 19 bringing this application, the names, addresses and telephone numbers of the attorneys known to 20 the applicant to be an attorney for any party in this matter are as follows: 21 l. G. Andrew Slater 0F DOWLING AARON, 8080 N. PALM AVENUE, THIRD FLOOR, 22 FRESNO, CA 9371 l (559) 432—4500. 23 24 B. COMPLIANCE WITH RULE 3.1202(b) 25 Rule 3.1202 (b) - Disclosure of Previous Applications. Plaintiff has made no prior 26 applications in this action requesting the same relief. 27 28 EX PARTE APPLICATION 2 C. COMPLIANCE WITH RULE 3.1202(c) Rule 3.1202 (c) — Affirmative Factual Showing. As set forth herein above and in the attached Declaration of Margarita Salazar in support of this Application, Plaintiff had previously #UJN erroneously sued the defendant under the wrong name. This error was based with a mistake caused by the similarity in the parties’ names. As set forth in the concurrently filed Declaration of Margarita Salazar, unless the properly named defendant is added to this case, Plaintiff will suffer irreparable harm. It is also more efficient to resolve this matter on an ex parte given that OOOOVONM the request is limited to leave to add in a DOE defendant. D. COMPLIANCE WITHRULE 3.1203 & 3.1204 As set forth in the concurrently filed Declaration of Margarita Salazar, all parties to this 11 action were previously notified of this ex parte application as required under Rules 3.1203 and 12 3.1204. Specifically, notice was provided on April l9, 2018 at 11:17 a.m via email, a true and 13 14 correct copy of the notice is attached to the Declaration of Margarita Salazar as EXHIBIT A. 15 Opposing party stated that he did not object to this application. 16 The applicant informed opposing pany where and when the application would be made 17 within the applicable time under Rule 3.1203. 18 19 Respectfully submitted, 20 DATED: April 20, 201 8 LAw OFFICES 0F MARGARITA SALAZAR, 21 A PROFESSIONAL LAW CORPORATION 22 23 24 25 26 27 28 EX PARTE APPLICATION 3 MEMORANDUM 0F POINTS AND AUTHORITIES I. INTRODUCTION. Plaintiff, Surjit Bagga, hereby submits this ex parte application to substitute DOE 1 \OOOQQUIAUJNu—n under California Code of Civil Procedure section 474. Plaintiff had initially sued and served a pany she believed to be the correct party, but subsequently came to learn that the sued party (Fresno Management Company) was not in fact the correct party. Instead, the party to who the allegations pertain is called Fresno Property Management Corp. Having since learned of this error, Plaintiff now seeks to substitute in Fresno Property Management Corp. as a named defendant in this case that was previously sued as DOE l. II. LEGAL ARGUMENT. A. Pursuant to Califomia Code ofCivil Procedure 473(a), the Court May Permit Parties to Amend their Pleadings California Code of Civil Procedure §473(a)(1) permits the court, in furtherance of justice, and upon any terms as may be proper, to allow any party to amend their pleadings. In the present case, causes of action existed as to Fresno Property Management Corp, but as NNNNNNNNNwt—tb—AH—n—np—Ip—Iu—tfl described in the attached declaration this remained unknown until after the other named defendant (Fresno Management Company) responded to the Complaint and notified counsel of mQQMAWNHoomNQMAWNHO the mistake in identity. The allegations previously alleged as against the erroneously sued Fresno Management Company should have been alleged against Fresno Property Management, Corp. The Plaintiff, having designated a defendant in the complaint by the incorrect name of DOE 1, and having discovered the true name ofthe defendant to be FRESNO PROPERTY MANAGEMENT, CORP. hereby requests that the Court permit Plaintiffto amend the operative complaint in this matter, Plaintiff’s Second Amended Complaint (“SAC”), by substituting the true name for the incorrect name wherever it appears in the SAC. EX PARTE APPLICATION 4 III. CONCLUSION. For these reasons, and the reasons expressed in the attached Declaration, Plaintiff requests leave of this court to amend the Second Amended Complaint by substituting the A incorrect name of “DOE 1” with Fresno Property Management. Corp. Respectfully submitted, \OOO\IO\UI Date: October 25, 2017 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 EX PARTE APPLICATION 5 DECLARATION OF MARGARITA SALAZAR I, MARGARITA SALAZAR, declare as follows: #UJN l. I am an attorney licensed to practice before all courts of the State of California, and I am the principal of my firm The Law Offices of Margarita Salazar, A Professional Law Corporation. I am lead counsel of record for Plaintiff Surjit Bagga (“Ms. Bagga” or “Plaintiff”) in the instant action filed in the Superior Court of the State of California for the County of Fresno, Case Number 16CECG03336 (the “Action”). The matters stated in this OKOOONQUI declaration are personally known to me, and if called as a witness, I could and would competently testify to the matters stated herein. 2. In this action, Plaintiff had previously erroneously sued the defendant under the wrong name. Plaintiff initially erroneously sued: “Fresno Management Company.” This 11 error was based with a mistake caused by the similarity in the parties’ names. 12 3. Based on information and belief, the true name of the defendant is: “Fresno 13 Property Management, Corp.” 14 4. Unless the properly named defendant is added to this case, Plaintiff will suffer 15 irreparable harm in that Plaintiff will not be able to name the correct party in this lawsuit from 16 whom she seeks damages. 17 5. It is also more efficient to resolve this matter on an ex parte basis given that the 18 request is limited to leave to add in a DOE defendant and not t0 specifically amend the entire 19 complaint in any other way. 20 6. I gave ex parte notice to opposing counsel, Mr. G. Andrew Slater via email on 21 4/ 19/2018. Mr. Slater responded to my email by indicating that he had “No objection” to our 22 ex parte request. 23 I declare under penalty of perjury under the laws of the State of California that the 24 25 26 27 28 EX PARTE APPLICATION 6 PROOF OF SERVICE I am employed County of San Diego, State of California. I am over the age of 18 in the #UJN and not a party to the within action. My business address is 333 H Street, Suite 5000, Chula Vista, California 91910. On April 20, 2018,] served to the persons identified below at the stated address(es) the following document(s) described as: 1. PLAINTIFF SURJIT BAGGA’S EX PARTE APPLICATION T0 SUBSTITUTE DOE UNDER CCP 474; MEMORANDUM OF POINTS AND AUTHORITIES; AND DECLARATION OF \OOONOUI MARGARITA SALAZAR As follows: 10 g (BY MAIL) I placed the original or a true copy of the foregoing document in a sealed envelope addressed to each interested party as set forth above. I deposited each such 11 envelope, with postage thereon fully prepaid, in an official Unites States Postal Service mailbox 12 at a United States Post Office facility in San Diego, California for certified mail with return receipt requested. 13 14 E (BY EMAIL) As a courtesy the party(ies) being served, I caused an electronic transmission of the above-described documents to be sent to the email addresses listed below 15 G. Andrew Slater, Esq. Attorneys for Defendant: 16 DOWLING AARON INCORPORATED CITY NATIONAL BANK 8080 North Palm Avenue, Third Floor 17 PO BOX 28902 Fresno, CA 93729—8902 18 Telephone: 559—432—4500 Fax: 559-432—4590 19 Email: aslater@dowlingaaron.com 20 21 Executed on April 20, 201 8, at Chula Vista, California. 22 I declare under penalty of perjury under the laws of the State of California that the 23 foregoing is true and correct. 24 25 Cel te La na 26 27 28 EX PARTE APPLICATION l