Preview
U K C? N A .
1 JOHN P. BRISCOE (SBN: 273690)
ibriscoe@mavallaw.com
2 MAYALL HURLEY P.C. F!LED/ENDORSED
2453 Grand Canal Boulevard
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Stockton, California 95207-8253 FEB 2 1 2023
4 Telephone: (209) 477-3833
Facsimile: (209) 473-4818 By:. H. PEMELTON
Deputy Clerk
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Attorneys for Plaintiff David Ridge
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7 SUPERIOR COURT OF THE STATE OF CALIFORNIA
8 IN AND FOR THE COUNTY OF SACRAMENTO
9 DAVID RIDGE, an individual. Case No.: 34-2019-00265393
10 Plaintiff, PLAINTIFF'S MEMORANDUM OF
11 POINTS AND AUTHORITIES IN
vs. OPPOSITION TO DEFENDANT'S EX
12 PARTE APPLICATION FOR ORDER
THE CALIFORNIA HIGHWAY PATROL; SHORTENING TIME FOR NOTICE AND
13 and DOES 1-100, inclusive, HEARING ON MOTION TO F I L E
INADVERTENTLY OMITTED 00
14 Defendants. DECLARATION SUPPORTING, AND TO
15 POSTPONE HEARING ON, MOTION
FOR SUMMARY JUDGMENT
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Date: February 22, 2023
17 Time: 9:45 a.m.
Dept: 53
18 Judge: Hon. Richard K. Sueyoshi
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Plaintiffs Memorandum of Points and Authorities in Opposition to Defendant's Ex Parte Application for Order
Shortening Time - Page 1
1 Defendant California Highway Patrol ("CHP") applies to this Court, ex parte, for an order (1)
2 shortening time for notice of and briefing on a motion for permission to file additional evidence in
3 support of its motion for summary judgment and (2), if requested by Plaintiff David Ridge ("Ridge"), a
4 continuance of the hearing on the motion for summary judgment. This application should be denied.
5 As a preliminary matter, the ex parte application fails to demonstrate sufficiently why it is
6 necessary. Such an application must be accornpanied by a declaration containing an "affirmative factual
7 showing" consisting of "competent testimony based on personal knowledge of irreparable harm,
8 immediate danger or any other statutory basis for granting relief ex parte." (Cal. Rules of Court, Rule
9 3.1202(c), emphasis added.) While an application may be made ex parte to shorten time of notice for a
10 motion, "good cause" must be shown, and mere lack of time for statutory notice is not a sufficient
II showing. (Id., see also Eliceche v. Federal Land Bank Ass'n (2002) 103 Cal.App.4"' 1349, 1369.) CHP,
12 in making this application, fails to submit the appropriate evidentiary showing. For that reason alone, the
13 application should be denied.
14 Additionally, the law is clear that, generally, all evidence in support of a motion for summary
15 judgment must be filed and served with that motion—at least 75 days before the hearing on said motion.
16 (See Code Civ. Proc, § 437c(a).) Notably, the statute does not permit a party to submit additional
17 evidence in support of its reply. (Nazir v. United Airlines, Inc. (2008) 178 Cal.App.4'*' 243, 249.') This
18 action was filed on September 23, 2019, meaning that CHP had in excess of three years to prepare and
19 file its motion for summary judgment, and the evidence supporting that motion. Ridge was served with
20 Defendant's motion for summary judgment/adjudication, as well as a number of documents which were
21 cited as evidence but not authenticated by any declaration or affidavit. Ridge duly objected to those
22 documents as lacking authentication. (CHP claims that Ridge should have notified CHP as to documents
23 it didn't serve or file, but the undersigned can inform the Court that CHP was not above refiising a short
24 discovery extension in a petty act of retribution, just last week.) Ridge already filed his opposition, and
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' Nazir also notes that the statute does not permit a party, in seeking summary judgment, to file a "reply separate
27 statement" with additional citations to evidence. Ridge mentions this because he predicts that CHP, despite being advised
of Nazir's holding, wiil file an additional separate statement in support of its reply. Ridge predicts this because counsel for
28 CHP requested a Microsoft Word copy of Ridge's opposing separate statement, which was provided.
Plaintiffs Memorandum of Points and Authorities in Opposition to Defendant's Ex Parte Application for Order
Shortening Time - Page 2
1 CHP will have the opportunity to file a reply to that opposition. CHP should not be allowed to submit
2 addifional evidence in support of its mofion and it fails to make a compelling argument otherwise.
3 The applicafion should be denied, and CHP's motion for summary judgment should be
4 adjudicated based on the argument and evidence submitted by both parties to date, as well as CHP's
5 reply brief If the Court is inclined to grant this application and permit CHP to file the Declarafion of
6 David Munis, it should maintain the present hearing date on the motion for summary judgment and
7 pennit Ridge to file further objections as well as a sur-reply with supporting evidence, not later than
8 February 28, 2023. (See Jacobs v. Coldwell Banker Residential Brokerage Co. (2017) 14 Cal.App.5"'
9 438, 449.) The undersigned also requests guidance as to whether CHP will be permitted to file a "reply
10 separate statemenf and, if so, for permission to reply further to the same.
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12 DATED: February 21, 2023 MAYALL HURLEY P.C.
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14 By
JOHN P. BRISCOE
15 Attomeys for Plaintiff
DAVID RIDGE
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Plaintiffs Memorandum of Points and Authorities in Opposition to Defendant's Ex Parte Application for Order
Shortening Time - Page 3
Ridge V. California Highway Patrol, et al.
Sacramento County Superior Court Case No. 34-2019-00265393
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PROOF OF SERVICE
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1, the undersigned, certify and declare as follows:
3 I am over the age of eighteen years and not a party to this action. My business address is 2453
Grand Canal Boulevard, Stockton, Califomia 95207 that is located in the county where the mailing
4 and/or delivery below took place.
5 On February 21, 2023,1 served the following document:
6 PLAINTIFF'S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO
DEFENDANT'S EX PARTE APPLICATION FOR ORDER SHORTENING TIME FOR
7 NOTICE AND HEARING ON MOTION TO FILE INADVERTENTLY OMITTED
DECLARATION SUPPORTING, AND TO POSTPONE HEARING ON, MOTION FOR
8 SUMMARY JUDGMENT
9 addressed to:
10 James F. Curran
Deputy Attomey General
11 P.O. Box 944255
Sacramento, CA 94244-2550
12 J ames. Curran(a),do j . ca. go v
Christopher Irby
13 Christopher.irbv@doj.ca.gov
14 • BUSINESS PRACTICE TO ENTRUST DEPOSIT TO OTHERS: I am readily familiar with
the business practice at my place of business for collection and processing of correspondence for
15 mailing with the United States Postal Service. Correspondence so collected and processed is
deposited with the United States Postal Service that same day in the ordinary course of business.
16 On the date specified below, at my place of business at Stockton, Califomia a copy of the document
described above was placed for deposit in the United States Postal Service in a sealed envelope,
17 with postage fully prepaid addressed to the individuals and/or entities mentioned above; and that
envelope was placed for collection and mailing on that date following ordinary business practice.
18
0 BY EMAIL: In accordance with Code of Civil Procedure, Section 1010.6, on the date specified
19 below, I caused a copy of the document(s) described above to be sent to the person(s) at the e-mail
address(es) listed above. My business e-mail address is lrilev@mavallaw.com. I did not receive,
20 within a reasonable time after the transmission, any electronic message or other indication that the
transmission was unsuccessful.
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I certify and declare under penalty of perjury under the laws of the State of Califomia that the
22 foregoing is true and correct.
23 Executed on Febmary 21, 2023, at Lodi, Califomia.
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25 LrNDSA¥ RILEY^HIELDS
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PROOF OF SERVICE - I
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Preview
U K C? N A . 1 JOHN P. BRISCOE (SBN: 273690) ibriscoe@mavallaw.com 2 MAYALL HURLEY P.C. F!LED/ENDORSED 2453 Grand Canal Boulevard 3 Stockton, California 95207-8253 FEB 2 1 2023 4 Telephone: (209) 477-3833 Facsimile: (209) 473-4818 By:. H. PEMELTON Deputy Clerk 5 Attorneys for Plaintiff David Ridge 6 7 SUPERIOR COURT OF THE STATE OF CALIFORNIA 8 IN AND FOR THE COUNTY OF SACRAMENTO 9 DAVID RIDGE, an individual. Case No.: 34-2019-00265393 10 Plaintiff, PLAINTIFF'S MEMORANDUM OF 11 POINTS AND AUTHORITIES IN vs. OPPOSITION TO DEFENDANT'S EX 12 PARTE APPLICATION FOR ORDER THE CALIFORNIA HIGHWAY PATROL; SHORTENING TIME FOR NOTICE AND 13 and DOES 1-100, inclusive, HEARING ON MOTION TO F I L E INADVERTENTLY OMITTED 00 14 Defendants. DECLARATION SUPPORTING, AND TO 15 POSTPONE HEARING ON, MOTION FOR SUMMARY JUDGMENT 16 Date: February 22, 2023 17 Time: 9:45 a.m. Dept: 53 18 Judge: Hon. Richard K. Sueyoshi 19 20 21 22 23 24 25 26 27 28 Plaintiffs Memorandum of Points and Authorities in Opposition to Defendant's Ex Parte Application for Order Shortening Time - Page 1 1 Defendant California Highway Patrol ("CHP") applies to this Court, ex parte, for an order (1) 2 shortening time for notice of and briefing on a motion for permission to file additional evidence in 3 support of its motion for summary judgment and (2), if requested by Plaintiff David Ridge ("Ridge"), a 4 continuance of the hearing on the motion for summary judgment. This application should be denied. 5 As a preliminary matter, the ex parte application fails to demonstrate sufficiently why it is 6 necessary. Such an application must be accornpanied by a declaration containing an "affirmative factual 7 showing" consisting of "competent testimony based on personal knowledge of irreparable harm, 8 immediate danger or any other statutory basis for granting relief ex parte." (Cal. Rules of Court, Rule 9 3.1202(c), emphasis added.) While an application may be made ex parte to shorten time of notice for a 10 motion, "good cause" must be shown, and mere lack of time for statutory notice is not a sufficient II showing. (Id., see also Eliceche v. Federal Land Bank Ass'n (2002) 103 Cal.App.4"' 1349, 1369.) CHP, 12 in making this application, fails to submit the appropriate evidentiary showing. For that reason alone, the 13 application should be denied. 14 Additionally, the law is clear that, generally, all evidence in support of a motion for summary 15 judgment must be filed and served with that motion—at least 75 days before the hearing on said motion. 16 (See Code Civ. Proc, § 437c(a).) Notably, the statute does not permit a party to submit additional 17 evidence in support of its reply. (Nazir v. United Airlines, Inc. (2008) 178 Cal.App.4'*' 243, 249.') This 18 action was filed on September 23, 2019, meaning that CHP had in excess of three years to prepare and 19 file its motion for summary judgment, and the evidence supporting that motion. Ridge was served with 20 Defendant's motion for summary judgment/adjudication, as well as a number of documents which were 21 cited as evidence but not authenticated by any declaration or affidavit. Ridge duly objected to those 22 documents as lacking authentication. (CHP claims that Ridge should have notified CHP as to documents 23 it didn't serve or file, but the undersigned can inform the Court that CHP was not above refiising a short 24 discovery extension in a petty act of retribution, just last week.) Ridge already filed his opposition, and 25 26 ' Nazir also notes that the statute does not permit a party, in seeking summary judgment, to file a "reply separate 27 statement" with additional citations to evidence. Ridge mentions this because he predicts that CHP, despite being advised of Nazir's holding, wiil file an additional separate statement in support of its reply. Ridge predicts this because counsel for 28 CHP requested a Microsoft Word copy of Ridge's opposing separate statement, which was provided. Plaintiffs Memorandum of Points and Authorities in Opposition to Defendant's Ex Parte Application for Order Shortening Time - Page 2 1 CHP will have the opportunity to file a reply to that opposition. CHP should not be allowed to submit 2 addifional evidence in support of its mofion and it fails to make a compelling argument otherwise. 3 The applicafion should be denied, and CHP's motion for summary judgment should be 4 adjudicated based on the argument and evidence submitted by both parties to date, as well as CHP's 5 reply brief If the Court is inclined to grant this application and permit CHP to file the Declarafion of 6 David Munis, it should maintain the present hearing date on the motion for summary judgment and 7 pennit Ridge to file further objections as well as a sur-reply with supporting evidence, not later than 8 February 28, 2023. (See Jacobs v. Coldwell Banker Residential Brokerage Co. (2017) 14 Cal.App.5"' 9 438, 449.) The undersigned also requests guidance as to whether CHP will be permitted to file a "reply 10 separate statemenf and, if so, for permission to reply further to the same. 11 /// 12 DATED: February 21, 2023 MAYALL HURLEY P.C. 13 r 14 By JOHN P. BRISCOE 15 Attomeys for Plaintiff DAVID RIDGE 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiffs Memorandum of Points and Authorities in Opposition to Defendant's Ex Parte Application for Order Shortening Time - Page 3 Ridge V. California Highway Patrol, et al. Sacramento County Superior Court Case No. 34-2019-00265393 1 PROOF OF SERVICE 2 1, the undersigned, certify and declare as follows: 3 I am over the age of eighteen years and not a party to this action. My business address is 2453 Grand Canal Boulevard, Stockton, Califomia 95207 that is located in the county where the mailing 4 and/or delivery below took place. 5 On February 21, 2023,1 served the following document: 6 PLAINTIFF'S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT'S EX PARTE APPLICATION FOR ORDER SHORTENING TIME FOR 7 NOTICE AND HEARING ON MOTION TO FILE INADVERTENTLY OMITTED DECLARATION SUPPORTING, AND TO POSTPONE HEARING ON, MOTION FOR 8 SUMMARY JUDGMENT 9 addressed to: 10 James F. Curran Deputy Attomey General 11 P.O. Box 944255 Sacramento, CA 94244-2550 12 J ames. Curran(a),do j . ca. go v Christopher Irby 13 Christopher.irbv@doj.ca.gov 14 • BUSINESS PRACTICE TO ENTRUST DEPOSIT TO OTHERS: I am readily familiar with the business practice at my place of business for collection and processing of correspondence for 15 mailing with the United States Postal Service. Correspondence so collected and processed is deposited with the United States Postal Service that same day in the ordinary course of business. 16 On the date specified below, at my place of business at Stockton, Califomia a copy of the document described above was placed for deposit in the United States Postal Service in a sealed envelope, 17 with postage fully prepaid addressed to the individuals and/or entities mentioned above; and that envelope was placed for collection and mailing on that date following ordinary business practice. 18 0 BY EMAIL: In accordance with Code of Civil Procedure, Section 1010.6, on the date specified 19 below, I caused a copy of the document(s) described above to be sent to the person(s) at the e-mail address(es) listed above. My business e-mail address is lrilev@mavallaw.com. I did not receive, 20 within a reasonable time after the transmission, any electronic message or other indication that the transmission was unsuccessful. 21 I certify and declare under penalty of perjury under the laws of the State of Califomia that the 22 foregoing is true and correct. 23 Executed on Febmary 21, 2023, at Lodi, Califomia. 24 25 LrNDSA¥ RILEY^HIELDS 26 27 PROOF OF SERVICE - I 28