Preview
1 Jeffrey M. Lenkov (State Bar No. 156478)
jeffrey.lenkov@manningkass.com
2 Daniel J. Sullivan (State Bar No. 251455)
daniel.sullivan@manningkass.com
3 MANNING & KASS
ELLROD, RAMIREZ, TRESTER LLP
4 801 S. Figueroa St, 15th Floor
Los Angeles, California 90017-3012
5 Telephone: (213) 624-6900
Facsimile: (213) 624-6999
6
Attorneys for Defendants, MAURICIO G. CEJA
7 MADRIGAL, CARRERA GARCIA
TRANSPORT, LLC and WADE
8 TRANSPORTATION COMPANY, INC.
9
SUPERIOR COURT OF THE STATE OF CALIFORNIA
10
COUNTY OF SONOMA
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MARINA MIRANDA, ISABELLA Case No. SCV-270065
13 MIRANDA BY GAL - DAVID MIRANDA,
WYATT MIRANDA BY GAL - RUDY DEFENDANTS MAURICIO G. CEJA
14 MIRANDA,, MADRIGAL, CARRERA GARCIA
TRANSPORT, LLC, AND WADE
15 Plaintiffs, TRANSPORTATION COMPANY, INC.’S
EX PARTE APPLICATION TO
16 v. CONTINUE TRIAL AND ALL RELATED
DATES; MEMORANDUM OF POINTS
17 MAURICIO G. CEJA MADRIGAL, AND AUTHORITIES
CARRERA GARCIA TRANSPORT, LLC,
18 WADE TRANSPORTATION COMPANY, Filed concurrently with Declaration of Daniel
INC.; and DOES 1 through 50, Inclusive,, J. Sullivan; [Proposed] Order
19
Defendants. Judge: Hon. Oscar A. Pardo
20 Date: July 31, 2023
Time: 10:30 a.m.
21 AND RELATED CROSS-ACTIONS Dept.: 19
22 Assigned for All Purposes to:
Hon. Oscar A. Pardo, Dept. 19
23
Action Filed: 01/25/2022
24 Trial Date: 10/13/2023
25
26 TO ALL PARTIES AND TO THEIR COUNSEL OF RECORD:
27 PLEASE TAKE NOTICE THAT on July 31, 2023, at 10:30 a.m., or as soon thereafter
28 as counsel may be heard, in Courtroom 19 of the above-captioned Court, located at 3055 Cleveland
4868-9652-1331.1
DEFENDANTS’ EX PARTE APPLICATION TO CONTINUE TRIAL AND ALL RELATED DATES;
MEMORANDUM OF POINTS AND AUTHORITIES
1 Avenue Santa Rosa, California 95403, defendants MAURICIO G. CEJA MADRIGAL
2 (“Madrigal”), CARRERA GARCIA TRANSPORT, LLC, and WADE TRANSPORTATION
3 COMPANY, INC. (collectively, “Defendants”) will and hereby do move this Court ex parte to issue
4 an order continuing trial to January 15, 2024, or a later date as convenient to the Court, with all
5 related dates, including discovery and motion cutoffs, to accommodate the timely hearing on
6 Defendants’ pending motion for summary judgment, currently set for October 11, 2023, and avoid
7 incurring potentially unnecessary costs of trial preparation.
8 As set forth in the attached declaration of Daniel J. Sullivan, notice of ex parte application
9 was timely given to counsel for all parties. Before 10:00 a.m. on July 28, 2023, counsel for
10 Defendants gave written notice via email to all parties of the date, time, place, and nature of the ex
11 parte relief sought by Defendants, and inquired whether they would appear and/or oppose the
12 application. (Sullivan Decl. ¶ 2, Exh. A.)
13 This ex parte application is made pursuant to California Rules of Court, Rules 3.1200 et seq.,
14 and 3.1332, Code of Civil Procedure section 437c, and Standards of Judicial Administration,
15 Standard 2.1 on the grounds that Defendants face immediate danger and irreparable harm of being
16 forced either (1) to expend potentially unnecessary and duplicative time and expense in preparing
17 and filing a noticed motion that may not be heard sufficiently in advance of Defendants’ MSJ; or
18 (2) to expend time and resources in preparation for trial on October 13, 2023, that may be rendered
19 unnecessary by the outcome of Defendants’ dispositive motion to be heard on October 11, 2023.
20 This application is further made pursuant to this Notice, on the accompanying Memorandum
21 of Points and Authorities, the concurrently-filed Declaration of Daniel J. Sullivan, the pleadings and
22 records on file herein and upon such further documents, evidence and argument as may be before
23 the Court at the time of the hearing on this application.
24 / / /
25 / / /
26 / / /
27 / / /
28 / / /
4868-9652-1331.1 2
DEFENDANTS’ EX PARTE APPLICATION TO CONTINUE TRIAL AND ALL RELATED DATES;
MEMORANDUM OF POINTS AND AUTHORITIES
1 DATED: July 28, 2023 MANNING & KASS
ELLROD, RAMIREZ, TRESTER LLP
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By:
6 Jeffrey M. Lenkov
7 Daniel J. Sullivan
Attorneys for Defendants, MAURICIO G. CEJA
8 MADRIGAL, CARRERA GARCIA
TRANSPORT, LLC and WADE
9 TRANSPORTATION COMPANY, INC.
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4868-9652-1331.1 3
DEFENDANTS’ EX PARTE APPLICATION TO CONTINUE TRIAL AND ALL RELATED DATES;
MEMORANDUM OF POINTS AND AUTHORITIES
1 MEMORANDUM OF POINTS AND AUTHORITIES
2 I. BACKGROUND
3 Defendants MAURICIO G. CEJA MADRIGAL (“Madrigal”), CARRERA GARCIA
4 TRANSPORT, LLC, and WADE TRANSPORTATION COMPANY, INC. (collectively,
5 “Defendants”) bring this ex parte application to continue trial to January 15, 2024, or a later date as
6 convenient to the Court, with all related dates, including discovery and motion cutoffs, to
7 accommodate the timely hearing on Defendants’ pending motion for summary judgment, currently
8 set for October 11, 2023, and avoid incurring potentially unnecessary costs of trial preparation.
9 This case arises from a motor vehicle collision that occurred on February 4, 2020, between
10 Madrigal and STEPHANIE MIRANDA (“Decedent”), resulting in Decedent’s death. (Sullivan
11 Decl., ¶ 3.) Trial in in this matter is currently set for October 13, 2023, and the hearing on
12 Defendants’ pending motion for summary judgment (“MSJ”) has been set by the Court for October
13 11, 2023. (Sullivan Decl., ¶ 4.) Based on the current trial date, the last day for a hearing on a motion
14 for summary judgment or adjudication is September 13, 2023, for which the last day for filing and
15 service was June 30, 2023. (Sullivan Decl., ¶ 5.)
16 Defendants filed and served their MSJ and supporting papers on June 30, 2023, after which
17 the Court assigned the current hearing date. (Sullivan Decl., ¶ 6.) Defendants will be unduly
18 prejudiced if their MSJ cannot be heard sufficiently in advance of trial, as it would deprive
19 Defendants of the opportunity to dispose of this matter altogether without trial, and to save otherwise
20 unnecessary time and resources expended in trial preparation - including engaging in expert
21 discovery and designations at least 70 days before the trial date. (Sullivan Decl., ¶ 7.) Defendants
22 will also be unduly prejudiced if their MSJ is to be heard two days before trial, as it is presently
23 scheduled, as Defendants will be forced to expend time and resources in preparation for trial on
24 October 13, 2023, that may be otherwise be rendered unnecessary pending the outcome of the MSJ
25 hearing on October 11, 2023. (Sullivan Decl., ¶ 8.)
26 No party will be prejudiced by a brief trial continuance of at least 90 days to accommodate
27 the Court’s timely hearing on Defendants’ MSJ and avoid the potentially unnecessary costs of
28 interim trial preparation, as it will not place this case in danger of any mandatory deadlines to be
4868-9652-1331.1 1
DEFENDANTS’ EX PARTE APPLICATION TO CONTINUE TRIAL AND ALL RELATED DATES;
MEMORANDUM OF POINTS AND AUTHORITIES
1 brought to trial, unnecessarily prolong proceedings, or impose any undue burden or expense.
2 (Sullivan Decl., ¶ 9.) The requested trial continuance would serve both (1) the interests of justice
3 by potentially bringing a prompt resolution of the matter, and (2) judicial economy by potentially
4 obviating the need for trial thereby saving the Court and parties from expending avoidable time,
5 resources, and expense. (Sullivan Decl., ¶ 10.) This would be the first trial continuance in this
6 matter. (Sullivan Decl., ¶ 11.)
7 II. EX PARTE RELIEF IS WARRANTED TO PREVENT IMMEDIATE DANGER
8 AND IRREPARABLE HARM
9 Pursuant to California Rules of Court, Rule 3.1202 subdivision (c), an applicant for ex parte
10 relief must make an affirmative factual showing in a declaration containing competent testimony
11 based on personal knowledge of irreparable harm, immediate danger, or any other statutory basis
12 for granting relief ex parte.
13 Here, Defendants seek relief ex parte as it is unknown when the Court will be able to hear a
14 noticed motion to continue trial due to the Court’s system of assigning hearing dates, as available,
15 only after a motion has been filed. Ex parte relief is necessary to prevent Defendants, the other
16 parties, and the Court from expending further time and resources in avoidable law and motion only
17 to determine whether the Court can hear a noticed motion to continue trial sufficiently in advance
18 of Defendants’ MSJ. (Sullivan Decl., ¶ 12.) Ex parte relief is therefore warranted to prevent
19 Defendants from the immediate danger and irreparable harm of being forced either (1) to expend
20 potentially unnecessary and duplicative time and expense in preparing and filing a noticed motion
21 that may not be heard sufficiently in advance of Defendants’ MSJ; or (2) to expend time and
22 resources in preparation for trial on October 13, 2023, that may be rendered unnecessary by the
23 outcome of Defendants’ dispositive motion to be heard on October 11, 2023. (Sullivan Decl., ¶ 13.)
24 III. DEFENDANTS HAVE COMPLIED WITH CALIFORNIA RULES OF COURT,
25 RULES 3.1203 AND 3.1204
26 Among other provisions, Cal. Rules of Court, rule 3.1203 subdivision (a) requires a party
27 seeking an ex parte order to notify all parties no later than 10:00 a.m. the court day before the ex
28 parte appearance, absent a showing of exceptional circumstances that justify a shorter time for
4868-9652-1331.1 2
DEFENDANTS’ EX PARTE APPLICATION TO CONTINUE TRIAL AND ALL RELATED DATES;
MEMORANDUM OF POINTS AND AUTHORITIES
1 notice.
2 Further, California Rules of Court, rule 3.1204 subdivision (b) provides:
3 “An ex parte application must be accompanied by a declaration
regarding notice stating:
4
(1) The notice given, including the date, time, manner, and name of
5 the party informed, the relief sought, any response, and whether
opposition is expected and that, within the applicable time under rule
6 3.1203, the applicant informed the opposing party where and when
the application would be made;
7
(2) That the applicant in good faith attempted to inform the opposing
8 party but was unable to do so, specifying the efforts made to inform
the opposing party; or
9
(3) That, for reasons specified, the applicant should not be required to
10 inform the opposing party.”
11
As set forth in the attached Declaration of Daniel J. Sullivan, notice of ex parte application
12
was timely given to counsel for all parties pursuant to California Rules of Court, rules 3.1203 and
13
3.1204. Before 10:00 a.m. on July 28, 2023, counsel for Defendants gave written notice via email
14
to all other parties of the date, time, place, and nature of the ex parte relief sought by Defendants,
15
and inquired whether they would appear and/or oppose the application. (Sullivan Decl., ¶ 2, Exh.
16
A.)
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IV. THE COURT IS AUTHORIZED TO CONTINUE TRIAL EX PARTE TO
18
ACCOMMODATE A TIMELY HEARING ON DEFENDANTS’ PENDING MSJ
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A. Summary Judgment Motions Must Be Heard At Least 30 Days Before Trial
20
Under Code of Civil Procedure section 437c, subdivision (a), motions for summary
21
judgment require at least 75 days’ notice, and must be heard no later than 30 days before trial. If a
22
party is prepared to serve a motion for summary judgment with sufficient notice to be heard at least
23
30 days prior to trial, but the Court’s calendar cannot accommodate a timely hearing, the Court is
24
obligated to set a date to hear the motion prior to trial. (Wells Fargo Bank v. Superior Court (1989)
25
206 Cal.App.3d 918; Sentry Insurance Company v. Superior Court (1989) 207 Cal.App.3d 526.)
26
“A trial court has a duty to hear a timely motion in a manner consistent with the rights of the parties
27
and the requirements of the statute.” (Fair Political Practices Com. v. American Civil Rights
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4868-9652-1331.1 3
DEFENDANTS’ EX PARTE APPLICATION TO CONTINUE TRIAL AND ALL RELATED DATES;
MEMORANDUM OF POINTS AND AUTHORITIES
1 Coalition, Inc. (2004) 121 Cal. App.4th 1171, 1177, citing to Wells Fargo Bank, supra, 206 Cal.
2 App.3d at 922.)
3 The Court retains “inherent authority to manage its calendar and control proceedings before
4 it.” (McMahon v. Superior Court (2003) 106 Cal.App.4th 112, 116.) To that end, Standards for
5 Judicial Administration 2.1 and 2.2 direct trial courts to ensure just and efficient resolution of cases
6 by controlling the pace of the litigation and avoiding delay. (Standards of Jud. Admin., Standards
7 2.1, subd. (a), (b); 2.2.) “Trial courts should be guided by the general principle that from the
8 commencement of litigation to its resolution, whether by trial or settlement, any elapsed time other
9 than reasonably required for pleadings, discovery, preparation, and court events is unacceptable and
10 should be eliminated.” (Standards of Jud. Admin., Standard 2.1, subd. (a).)
11 B. The Court May Continue a Trial Date Upon an Ex Parte Application
12 California Rules of Court, Rule 3.1332, states in pertinent part: “A party seeking a
13 continuance of the date set for trial, whether contested or uncontested or stipulated to by the parties,
14 must make the request for a continuance by a noticed motion or an ex parte application under the
15 rules in chapter 4 of this division, with supporting declarations. The party must make the motion or
16 application as soon as reasonably practical once the necessity for the continuance is discovered.”
17 (Cal. Rules of Court, Rule 3.1332; emphasis added.) California Rules of Court, Rule 3.1332
18 provides:
19 “(c) Grounds for continuance
20 Although continuances of trial are disfavored, each request for a
continuance must be considered on its own merits. The court may
21 grant a continuance only upon an affirmative showing of good cause
requiring the continuance. Circumstances that may indicate good
22 cause include:
23 …
24 (7) A significant, unanticipated change in the status of the case as a
result of which the case is not ready for trial.
25
(d) Other factors to be considered
26
In ruling on a motion or an application for a continuance, the court
27 must consider all the facts and circumstances that are relevant to the
determination. These may include:
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4868-9652-1331.1 4
DEFENDANTS’ EX PARTE APPLICATION TO CONTINUE TRIAL AND ALL RELATED DATES;
MEMORANDUM OF POINTS AND AUTHORITIES
1 (1) The proximity of the trial date;
2 (2) Whether there was any previous continuance, extension of time,
or delay of trial due to any party;
3
(3) The length of the continuance requested;
4
(4) The availability of alternative means to address the problem that
5 gave rise to the motion or application for a continuance;
6 (5) The prejudice that parties or witnesses will suffer as a result of the
continuance;
7
…
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(9) Whether all parties have stipulated to a continuance;
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(10) Whether the interests of justice are best served by a continuance,
10 by the trial of the matter, or by imposing conditions on the
continuance; and
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(11) Any other fact or circumstance relevant to the fair determination
12 of the motion or application.”
13 “Liberality should be exercised in the granting of a continuance to obtain the presence of
14 material evidence and to prevent miscarriages of justice.” (Cohen v. Herbert (1960) 186 Cal.App.2d
15 488, 493; See also: Larsen v. Solbakken (1963) 221 Cal.App.2d 410, 429; and Canal Oil Co. v.
16 National Oil Co. (1937) 19 Cal.App.2d 524, 534.) The Court in Shalen v. Superior Court (1960)
17 184 Cal.App.2d 598, held that “[l]iberality should be exercised in granting continuances when they
18 are not prejudicial to the interests of the parties to the action.” (Id. at 601.)
19 Although trial dates are firm, decisions about whether to grant continuances or extend
20 discovery “must be made in the atmosphere of substantial justice. When the two policies collide
21 head-on, the strong public policy favoring disposition on the merits outweighs the competing policy
22 favoring judicial efficiency.” (Bahl v. Bank of America (2001) 89 Cal.App.4th 389, 398-
23 399.) “While it is true that a trial judge must have control of the courtroom and its calendar and must
24 have discretion to deny a request for continuance when there is no good cause for granting one, it is
25 equally true that, absent [a lack of diligence or other abusive] circumstances . . . a request for
26 continuance supported by a showing of good cause usually ought to be granted.” (Estate of Meeker
27 (1993) 13 Cal.App.4th 1099, 1105.) Further, the court in In re Marriage of Hoffneister (1984) 161
28 Cal.App.3d 1163, held that “[t]he trial judge must exercise discretion with due regard to all interest
4868-9652-1331.1 5
DEFENDANTS’ EX PARTE APPLICATION TO CONTINUE TRIAL AND ALL RELATED DATES;
MEMORANDUM OF POINTS AND AUTHORITIES
1 involved, and refusal of a continuance which has the practical effect of denying the applicant a fair
2 hearing is reversible error.” (Id. at 1169.)
3 C. Good Cause Exists for an Ex Parte Continuance of Trial and All Related Dates
4 Good cause exists to continue trial and all related dates to permit Defendants’ pending MSJ
5 to be timely heard before trial and avoid potentially unnecessary expenditure of time and resources
6 of trial preparation. Defendants seek relief ex parte as it is unknown when the Court will be able to
7 hear a noticed motion to continue trial due to the Court’s system of assigning hearing dates, as
8 available, only after a motion has been filed. Ex parte relief is necessary to prevent Defendants, the
9 other parties, and the Court from expending further time and resources in avoidable law and motion
10 only to determine whether the Court can hear a noticed motion to continue trial sufficiently in
11 advance of Defendants’ MSJ. Ex parte relief is therefore warranted to prevent immediate danger
12 and irreparable harm of being forced either (1) to expend potentially unnecessary and duplicative
13 time and expense in preparing and filing a noticed motion that may not be heard sufficiently in
14 advance of Defendants’ MSJ; or (2) to expend time and resources in preparation for trial on October
15 13, 2023, that may be rendered unnecessary by the outcome of Defendants’ dispositive motion to
16 be heard on October 11, 2023.
17 Defendants filed and served their MSJ with sufficient notice to be heard at least 30 days
18 prior to trial, but the Court’s calendar cannot accommodate a timely hearing. The Court is thus
19 obligated to set a date to hear Defendants’ MSJ at least 30 days prior to trial and empowered to
20 continue the trial date to ensure just and efficient resolution of the matter and eliminate delay.
21 Defendants will be unduly prejudiced if their MSJ cannot be heard sufficiently in advance
22 of trial, as it would deprive Defendants of the opportunity to dispose of this matter altogether without
23 trial, and to save otherwise unnecessary time and resources expended in trial preparation - including
24 engaging in expert discovery and designations at least 70 days before the trial date. Defendants will
25 also be unduly prejudiced if their MSJ is to be heard two days before trial, as it is presently
26 scheduled, as Defendants will be forced to expend time and resources in preparation for trial on
27 October 13, 2023, that may be otherwise be rendered unnecessary pending the outcome of the MSJ
28 hearing on October 11, 2023.
4868-9652-1331.1 6
DEFENDANTS’ EX PARTE APPLICATION TO CONTINUE TRIAL AND ALL RELATED DATES;
MEMORANDUM OF POINTS AND AUTHORITIES
1 No party will be prejudiced by a brief trial continuance of at least 90 days to accommodate
2 the Court’s timely hearing on Defendants’ MSJ and avoid the potentially unnecessary costs of
3 interim trial preparation, as it will not place this case in danger of any mandatory deadlines to be
4 brought to trial, unnecessarily prolong proceedings, or impose any undue burden or expense. The
5 requested trial continuance would serve both (1) the interests of justice by potentially bringing a
6 prompt resolution of the matter, and (2) judicial economy by potentially obviating the need for trial
7 thereby saving the Court and parties from expending avoidable time, resources, and expense. This
8 would be the first trial continuance in this matter
9 V. CONCLUSION
10 For these reasons, Defendants respectfully request the Court continue trial to January 15,
11 2024, or a later date as convenient to the Court, with all related dates, including discovery and
12 motion cutoffs, to accommodate the timely hearing on Defendants’ pending motion for summary
13 judgment, currently set for October 11, 2023, and avoid incurring potentially unnecessary costs of
14 trial preparation.
15
16 DATED: July 28, 2023 MANNING & KASS
ELLROD, RAMIREZ, TRESTER LLP
17
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20
By:
21 Jeffrey M. Lenkov
22 Daniel J. Sullivan
Attorneys for Defendants, MAURICIO G. CEJA
23 MADRIGAL, CARRERA GARCIA
TRANSPORT, LLC and WADE
24 TRANSPORTATION COMPANY, INC.
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4868-9652-1331.1 7
DEFENDANTS’ EX PARTE APPLICATION TO CONTINUE TRIAL AND ALL RELATED DATES;
MEMORANDUM OF POINTS AND AUTHORITIES
1 PROOF OF SERVICE
2 STATE OF CALIFORNIA, COUNTY OF LOS ANGELES
3 At the time of service, I was over 18 years of age and not a party to this action. I am
employed in the County of Los Angeles, State of California. My business address is 801 S.
4 Figueroa St, 15th Floor, Los Angeles, CA 90017-3012.
5 On July 28, 2023, I served true copies of the following document(s) described as
DEFENDANTS MAURICIO G. CEJA MADRIGAL, CARRERA GARCIA TRANSPORT,
6 LLC, AND WADE TRANSPORTATION COMPANY, INC.’S EX PARTE APPLICATION
TO CONTINUE TRIAL AND ALL RELATED DATES; MEMORANDUM OF POINTS
7 AND AUTHORITIES on the interested parties in this action as follows:
8 Anna Dubrovsky, Esq.
Pavel Krepkiy, Esq.
9 ANNA DUBROVSKY LAW GROUP, INC.
601 Montgomery Street, Suite 2015
10 San Francisco, CA 94111
T: (415) 746-1477
11 F: (415) 746-1478
anna@dubrovskylawyers.com
12 clerk@dubrovskylawyers.com
pavel@dubrovskylawyers.com
13 Attorneys for Plaintiffs
14 Jesse B. Crisp, Esq.
Gregory W. Jemison, Esq.
15 LAW OFFICES OF J.CHRISP
6997 Highway 29
16 Lower Lake, CA 95493
Phone: (707) 994-0529
17 Fax: (707) 995-3529
eservice@chrisplaw.com
18 jesse@chrisplaw.com
Attorneys for Plaintiffs
19
BY E-MAIL OR ELECTRONIC TRANSMISSION: I caused a copy of the
20 document(s) to be sent from e-mail address gloria.salata@manningkass.com to the persons at the
e-mail addresses listed in the Service List. I did not receive, within a reasonable time after the
21 transmission, any electronic message or other indication that the transmission was unsuccessful.
22 I declare under penalty of perjury under the laws of the State of California that the
foregoing is true and correct.
23
Executed on July 28, 2023, at Los Angeles, California.
24
25
26 Gloria Salata
27
28
4868-9652-1331.1 8
DEFENDANTS’ EX PARTE APPLICATION TO CONTINUE TRIAL AND ALL RELATED DATES;
MEMORANDUM OF POINTS AND AUTHORITIES
Preview
1 Jeffrey M. Lenkov (State Bar No. 156478) jeffrey.lenkov@manningkass.com 2 Daniel J. Sullivan (State Bar No. 251455) daniel.sullivan@manningkass.com 3 MANNING & KASS ELLROD, RAMIREZ, TRESTER LLP 4 801 S. Figueroa St, 15th Floor Los Angeles, California 90017-3012 5 Telephone: (213) 624-6900 Facsimile: (213) 624-6999 6 Attorneys for Defendants, MAURICIO G. CEJA 7 MADRIGAL, CARRERA GARCIA TRANSPORT, LLC and WADE 8 TRANSPORTATION COMPANY, INC. 9 SUPERIOR COURT OF THE STATE OF CALIFORNIA 10 COUNTY OF SONOMA 11 12 MARINA MIRANDA, ISABELLA Case No. SCV-270065 13 MIRANDA BY GAL - DAVID MIRANDA, WYATT MIRANDA BY GAL - RUDY DEFENDANTS MAURICIO G. CEJA 14 MIRANDA,, MADRIGAL, CARRERA GARCIA TRANSPORT, LLC, AND WADE 15 Plaintiffs, TRANSPORTATION COMPANY, INC.’S EX PARTE APPLICATION TO 16 v. CONTINUE TRIAL AND ALL RELATED DATES; MEMORANDUM OF POINTS 17 MAURICIO G. CEJA MADRIGAL, AND AUTHORITIES CARRERA GARCIA TRANSPORT, LLC, 18 WADE TRANSPORTATION COMPANY, Filed concurrently with Declaration of Daniel INC.; and DOES 1 through 50, Inclusive,, J. Sullivan; [Proposed] Order 19 Defendants. Judge: Hon. Oscar A. Pardo 20 Date: July 31, 2023 Time: 10:30 a.m. 21 AND RELATED CROSS-ACTIONS Dept.: 19 22 Assigned for All Purposes to: Hon. Oscar A. Pardo, Dept. 19 23 Action Filed: 01/25/2022 24 Trial Date: 10/13/2023 25 26 TO ALL PARTIES AND TO THEIR COUNSEL OF RECORD: 27 PLEASE TAKE NOTICE THAT on July 31, 2023, at 10:30 a.m., or as soon thereafter 28 as counsel may be heard, in Courtroom 19 of the above-captioned Court, located at 3055 Cleveland 4868-9652-1331.1 DEFENDANTS’ EX PARTE APPLICATION TO CONTINUE TRIAL AND ALL RELATED DATES; MEMORANDUM OF POINTS AND AUTHORITIES 1 Avenue Santa Rosa, California 95403, defendants MAURICIO G. CEJA MADRIGAL 2 (“Madrigal”), CARRERA GARCIA TRANSPORT, LLC, and WADE TRANSPORTATION 3 COMPANY, INC. (collectively, “Defendants”) will and hereby do move this Court ex parte to issue 4 an order continuing trial to January 15, 2024, or a later date as convenient to the Court, with all 5 related dates, including discovery and motion cutoffs, to accommodate the timely hearing on 6 Defendants’ pending motion for summary judgment, currently set for October 11, 2023, and avoid 7 incurring potentially unnecessary costs of trial preparation. 8 As set forth in the attached declaration of Daniel J. Sullivan, notice of ex parte application 9 was timely given to counsel for all parties. Before 10:00 a.m. on July 28, 2023, counsel for 10 Defendants gave written notice via email to all parties of the date, time, place, and nature of the ex 11 parte relief sought by Defendants, and inquired whether they would appear and/or oppose the 12 application. (Sullivan Decl. ¶ 2, Exh. A.) 13 This ex parte application is made pursuant to California Rules of Court, Rules 3.1200 et seq., 14 and 3.1332, Code of Civil Procedure section 437c, and Standards of Judicial Administration, 15 Standard 2.1 on the grounds that Defendants face immediate danger and irreparable harm of being 16 forced either (1) to expend potentially unnecessary and duplicative time and expense in preparing 17 and filing a noticed motion that may not be heard sufficiently in advance of Defendants’ MSJ; or 18 (2) to expend time and resources in preparation for trial on October 13, 2023, that may be rendered 19 unnecessary by the outcome of Defendants’ dispositive motion to be heard on October 11, 2023. 20 This application is further made pursuant to this Notice, on the accompanying Memorandum 21 of Points and Authorities, the concurrently-filed Declaration of Daniel J. Sullivan, the pleadings and 22 records on file herein and upon such further documents, evidence and argument as may be before 23 the Court at the time of the hearing on this application. 24 / / / 25 / / / 26 / / / 27 / / / 28 / / / 4868-9652-1331.1 2 DEFENDANTS’ EX PARTE APPLICATION TO CONTINUE TRIAL AND ALL RELATED DATES; MEMORANDUM OF POINTS AND AUTHORITIES 1 DATED: July 28, 2023 MANNING & KASS ELLROD, RAMIREZ, TRESTER LLP 2 3 4 5 By: 6 Jeffrey M. Lenkov 7 Daniel J. Sullivan Attorneys for Defendants, MAURICIO G. CEJA 8 MADRIGAL, CARRERA GARCIA TRANSPORT, LLC and WADE 9 TRANSPORTATION COMPANY, INC. 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4868-9652-1331.1 3 DEFENDANTS’ EX PARTE APPLICATION TO CONTINUE TRIAL AND ALL RELATED DATES; MEMORANDUM OF POINTS AND AUTHORITIES 1 MEMORANDUM OF POINTS AND AUTHORITIES 2 I. BACKGROUND 3 Defendants MAURICIO G. CEJA MADRIGAL (“Madrigal”), CARRERA GARCIA 4 TRANSPORT, LLC, and WADE TRANSPORTATION COMPANY, INC. (collectively, 5 “Defendants”) bring this ex parte application to continue trial to January 15, 2024, or a later date as 6 convenient to the Court, with all related dates, including discovery and motion cutoffs, to 7 accommodate the timely hearing on Defendants’ pending motion for summary judgment, currently 8 set for October 11, 2023, and avoid incurring potentially unnecessary costs of trial preparation. 9 This case arises from a motor vehicle collision that occurred on February 4, 2020, between 10 Madrigal and STEPHANIE MIRANDA (“Decedent”), resulting in Decedent’s death. (Sullivan 11 Decl., ¶ 3.) Trial in in this matter is currently set for October 13, 2023, and the hearing on 12 Defendants’ pending motion for summary judgment (“MSJ”) has been set by the Court for October 13 11, 2023. (Sullivan Decl., ¶ 4.) Based on the current trial date, the last day for a hearing on a motion 14 for summary judgment or adjudication is September 13, 2023, for which the last day for filing and 15 service was June 30, 2023. (Sullivan Decl., ¶ 5.) 16 Defendants filed and served their MSJ and supporting papers on June 30, 2023, after which 17 the Court assigned the current hearing date. (Sullivan Decl., ¶ 6.) Defendants will be unduly 18 prejudiced if their MSJ cannot be heard sufficiently in advance of trial, as it would deprive 19 Defendants of the opportunity to dispose of this matter altogether without trial, and to save otherwise 20 unnecessary time and resources expended in trial preparation - including engaging in expert 21 discovery and designations at least 70 days before the trial date. (Sullivan Decl., ¶ 7.) Defendants 22 will also be unduly prejudiced if their MSJ is to be heard two days before trial, as it is presently 23 scheduled, as Defendants will be forced to expend time and resources in preparation for trial on 24 October 13, 2023, that may be otherwise be rendered unnecessary pending the outcome of the MSJ 25 hearing on October 11, 2023. (Sullivan Decl., ¶ 8.) 26 No party will be prejudiced by a brief trial continuance of at least 90 days to accommodate 27 the Court’s timely hearing on Defendants’ MSJ and avoid the potentially unnecessary costs of 28 interim trial preparation, as it will not place this case in danger of any mandatory deadlines to be 4868-9652-1331.1 1 DEFENDANTS’ EX PARTE APPLICATION TO CONTINUE TRIAL AND ALL RELATED DATES; MEMORANDUM OF POINTS AND AUTHORITIES 1 brought to trial, unnecessarily prolong proceedings, or impose any undue burden or expense. 2 (Sullivan Decl., ¶ 9.) The requested trial continuance would serve both (1) the interests of justice 3 by potentially bringing a prompt resolution of the matter, and (2) judicial economy by potentially 4 obviating the need for trial thereby saving the Court and parties from expending avoidable time, 5 resources, and expense. (Sullivan Decl., ¶ 10.) This would be the first trial continuance in this 6 matter. (Sullivan Decl., ¶ 11.) 7 II. EX PARTE RELIEF IS WARRANTED TO PREVENT IMMEDIATE DANGER 8 AND IRREPARABLE HARM 9 Pursuant to California Rules of Court, Rule 3.1202 subdivision (c), an applicant for ex parte 10 relief must make an affirmative factual showing in a declaration containing competent testimony 11 based on personal knowledge of irreparable harm, immediate danger, or any other statutory basis 12 for granting relief ex parte. 13 Here, Defendants seek relief ex parte as it is unknown when the Court will be able to hear a 14 noticed motion to continue trial due to the Court’s system of assigning hearing dates, as available, 15 only after a motion has been filed. Ex parte relief is necessary to prevent Defendants, the other 16 parties, and the Court from expending further time and resources in avoidable law and motion only 17 to determine whether the Court can hear a noticed motion to continue trial sufficiently in advance 18 of Defendants’ MSJ. (Sullivan Decl., ¶ 12.) Ex parte relief is therefore warranted to prevent 19 Defendants from the immediate danger and irreparable harm of being forced either (1) to expend 20 potentially unnecessary and duplicative time and expense in preparing and filing a noticed motion 21 that may not be heard sufficiently in advance of Defendants’ MSJ; or (2) to expend time and 22 resources in preparation for trial on October 13, 2023, that may be rendered unnecessary by the 23 outcome of Defendants’ dispositive motion to be heard on October 11, 2023. (Sullivan Decl., ¶ 13.) 24 III. DEFENDANTS HAVE COMPLIED WITH CALIFORNIA RULES OF COURT, 25 RULES 3.1203 AND 3.1204 26 Among other provisions, Cal. Rules of Court, rule 3.1203 subdivision (a) requires a party 27 seeking an ex parte order to notify all parties no later than 10:00 a.m. the court day before the ex 28 parte appearance, absent a showing of exceptional circumstances that justify a shorter time for 4868-9652-1331.1 2 DEFENDANTS’ EX PARTE APPLICATION TO CONTINUE TRIAL AND ALL RELATED DATES; MEMORANDUM OF POINTS AND AUTHORITIES 1 notice. 2 Further, California Rules of Court, rule 3.1204 subdivision (b) provides: 3 “An ex parte application must be accompanied by a declaration regarding notice stating: 4 (1) The notice given, including the date, time, manner, and name of 5 the party informed, the relief sought, any response, and whether opposition is expected and that, within the applicable time under rule 6 3.1203, the applicant informed the opposing party where and when the application would be made; 7 (2) That the applicant in good faith attempted to inform the opposing 8 party but was unable to do so, specifying the efforts made to inform the opposing party; or 9 (3) That, for reasons specified, the applicant should not be required to 10 inform the opposing party.” 11 As set forth in the attached Declaration of Daniel J. Sullivan, notice of ex parte application 12 was timely given to counsel for all parties pursuant to California Rules of Court, rules 3.1203 and 13 3.1204. Before 10:00 a.m. on July 28, 2023, counsel for Defendants gave written notice via email 14 to all other parties of the date, time, place, and nature of the ex parte relief sought by Defendants, 15 and inquired whether they would appear and/or oppose the application. (Sullivan Decl., ¶ 2, Exh. 16 A.) 17 IV. THE COURT IS AUTHORIZED TO CONTINUE TRIAL EX PARTE TO 18 ACCOMMODATE A TIMELY HEARING ON DEFENDANTS’ PENDING MSJ 19 A. Summary Judgment Motions Must Be Heard At Least 30 Days Before Trial 20 Under Code of Civil Procedure section 437c, subdivision (a), motions for summary 21 judgment require at least 75 days’ notice, and must be heard no later than 30 days before trial. If a 22 party is prepared to serve a motion for summary judgment with sufficient notice to be heard at least 23 30 days prior to trial, but the Court’s calendar cannot accommodate a timely hearing, the Court is 24 obligated to set a date to hear the motion prior to trial. (Wells Fargo Bank v. Superior Court (1989) 25 206 Cal.App.3d 918; Sentry Insurance Company v. Superior Court (1989) 207 Cal.App.3d 526.) 26 “A trial court has a duty to hear a timely motion in a manner consistent with the rights of the parties 27 and the requirements of the statute.” (Fair Political Practices Com. v. American Civil Rights 28 4868-9652-1331.1 3 DEFENDANTS’ EX PARTE APPLICATION TO CONTINUE TRIAL AND ALL RELATED DATES; MEMORANDUM OF POINTS AND AUTHORITIES 1 Coalition, Inc. (2004) 121 Cal. App.4th 1171, 1177, citing to Wells Fargo Bank, supra, 206 Cal. 2 App.3d at 922.) 3 The Court retains “inherent authority to manage its calendar and control proceedings before 4 it.” (McMahon v. Superior Court (2003) 106 Cal.App.4th 112, 116.) To that end, Standards for 5 Judicial Administration 2.1 and 2.2 direct trial courts to ensure just and efficient resolution of cases 6 by controlling the pace of the litigation and avoiding delay. (Standards of Jud. Admin., Standards 7 2.1, subd. (a), (b); 2.2.) “Trial courts should be guided by the general principle that from the 8 commencement of litigation to its resolution, whether by trial or settlement, any elapsed time other 9 than reasonably required for pleadings, discovery, preparation, and court events is unacceptable and 10 should be eliminated.” (Standards of Jud. Admin., Standard 2.1, subd. (a).) 11 B. The Court May Continue a Trial Date Upon an Ex Parte Application 12 California Rules of Court, Rule 3.1332, states in pertinent part: “A party seeking a 13 continuance of the date set for trial, whether contested or uncontested or stipulated to by the parties, 14 must make the request for a continuance by a noticed motion or an ex parte application under the 15 rules in chapter 4 of this division, with supporting declarations. The party must make the motion or 16 application as soon as reasonably practical once the necessity for the continuance is discovered.” 17 (Cal. Rules of Court, Rule 3.1332; emphasis added.) California Rules of Court, Rule 3.1332 18 provides: 19 “(c) Grounds for continuance 20 Although continuances of trial are disfavored, each request for a continuance must be considered on its own merits. The court may 21 grant a continuance only upon an affirmative showing of good cause requiring the continuance. Circumstances that may indicate good 22 cause include: 23 … 24 (7) A significant, unanticipated change in the status of the case as a result of which the case is not ready for trial. 25 (d) Other factors to be considered 26 In ruling on a motion or an application for a continuance, the court 27 must consider all the facts and circumstances that are relevant to the determination. These may include: 28 4868-9652-1331.1 4 DEFENDANTS’ EX PARTE APPLICATION TO CONTINUE TRIAL AND ALL RELATED DATES; MEMORANDUM OF POINTS AND AUTHORITIES 1 (1) The proximity of the trial date; 2 (2) Whether there was any previous continuance, extension of time, or delay of trial due to any party; 3 (3) The length of the continuance requested; 4 (4) The availability of alternative means to address the problem that 5 gave rise to the motion or application for a continuance; 6 (5) The prejudice that parties or witnesses will suffer as a result of the continuance; 7 … 8 (9) Whether all parties have stipulated to a continuance; 9 (10) Whether the interests of justice are best served by a continuance, 10 by the trial of the matter, or by imposing conditions on the continuance; and 11 (11) Any other fact or circumstance relevant to the fair determination 12 of the motion or application.” 13 “Liberality should be exercised in the granting of a continuance to obtain the presence of 14 material evidence and to prevent miscarriages of justice.” (Cohen v. Herbert (1960) 186 Cal.App.2d 15 488, 493; See also: Larsen v. Solbakken (1963) 221 Cal.App.2d 410, 429; and Canal Oil Co. v. 16 National Oil Co. (1937) 19 Cal.App.2d 524, 534.) The Court in Shalen v. Superior Court (1960) 17 184 Cal.App.2d 598, held that “[l]iberality should be exercised in granting continuances when they 18 are not prejudicial to the interests of the parties to the action.” (Id. at 601.) 19 Although trial dates are firm, decisions about whether to grant continuances or extend 20 discovery “must be made in the atmosphere of substantial justice. When the two policies collide 21 head-on, the strong public policy favoring disposition on the merits outweighs the competing policy 22 favoring judicial efficiency.” (Bahl v. Bank of America (2001) 89 Cal.App.4th 389, 398- 23 399.) “While it is true that a trial judge must have control of the courtroom and its calendar and must 24 have discretion to deny a request for continuance when there is no good cause for granting one, it is 25 equally true that, absent [a lack of diligence or other abusive] circumstances . . . a request for 26 continuance supported by a showing of good cause usually ought to be granted.” (Estate of Meeker 27 (1993) 13 Cal.App.4th 1099, 1105.) Further, the court in In re Marriage of Hoffneister (1984) 161 28 Cal.App.3d 1163, held that “[t]he trial judge must exercise discretion with due regard to all interest 4868-9652-1331.1 5 DEFENDANTS’ EX PARTE APPLICATION TO CONTINUE TRIAL AND ALL RELATED DATES; MEMORANDUM OF POINTS AND AUTHORITIES 1 involved, and refusal of a continuance which has the practical effect of denying the applicant a fair 2 hearing is reversible error.” (Id. at 1169.) 3 C. Good Cause Exists for an Ex Parte Continuance of Trial and All Related Dates 4 Good cause exists to continue trial and all related dates to permit Defendants’ pending MSJ 5 to be timely heard before trial and avoid potentially unnecessary expenditure of time and resources 6 of trial preparation. Defendants seek relief ex parte as it is unknown when the Court will be able to 7 hear a noticed motion to continue trial due to the Court’s system of assigning hearing dates, as 8 available, only after a motion has been filed. Ex parte relief is necessary to prevent Defendants, the 9 other parties, and the Court from expending further time and resources in avoidable law and motion 10 only to determine whether the Court can hear a noticed motion to continue trial sufficiently in 11 advance of Defendants’ MSJ. Ex parte relief is therefore warranted to prevent immediate danger 12 and irreparable harm of being forced either (1) to expend potentially unnecessary and duplicative 13 time and expense in preparing and filing a noticed motion that may not be heard sufficiently in 14 advance of Defendants’ MSJ; or (2) to expend time and resources in preparation for trial on October 15 13, 2023, that may be rendered unnecessary by the outcome of Defendants’ dispositive motion to 16 be heard on October 11, 2023. 17 Defendants filed and served their MSJ with sufficient notice to be heard at least 30 days 18 prior to trial, but the Court’s calendar cannot accommodate a timely hearing. The Court is thus 19 obligated to set a date to hear Defendants’ MSJ at least 30 days prior to trial and empowered to 20 continue the trial date to ensure just and efficient resolution of the matter and eliminate delay. 21 Defendants will be unduly prejudiced if their MSJ cannot be heard sufficiently in advance 22 of trial, as it would deprive Defendants of the opportunity to dispose of this matter altogether without 23 trial, and to save otherwise unnecessary time and resources expended in trial preparation - including 24 engaging in expert discovery and designations at least 70 days before the trial date. Defendants will 25 also be unduly prejudiced if their MSJ is to be heard two days before trial, as it is presently 26 scheduled, as Defendants will be forced to expend time and resources in preparation for trial on 27 October 13, 2023, that may be otherwise be rendered unnecessary pending the outcome of the MSJ 28 hearing on October 11, 2023. 4868-9652-1331.1 6 DEFENDANTS’ EX PARTE APPLICATION TO CONTINUE TRIAL AND ALL RELATED DATES; MEMORANDUM OF POINTS AND AUTHORITIES 1 No party will be prejudiced by a brief trial continuance of at least 90 days to accommodate 2 the Court’s timely hearing on Defendants’ MSJ and avoid the potentially unnecessary costs of 3 interim trial preparation, as it will not place this case in danger of any mandatory deadlines to be 4 brought to trial, unnecessarily prolong proceedings, or impose any undue burden or expense. The 5 requested trial continuance would serve both (1) the interests of justice by potentially bringing a 6 prompt resolution of the matter, and (2) judicial economy by potentially obviating the need for trial 7 thereby saving the Court and parties from expending avoidable time, resources, and expense. This 8 would be the first trial continuance in this matter 9 V. CONCLUSION 10 For these reasons, Defendants respectfully request the Court continue trial to January 15, 11 2024, or a later date as convenient to the Court, with all related dates, including discovery and 12 motion cutoffs, to accommodate the timely hearing on Defendants’ pending motion for summary 13 judgment, currently set for October 11, 2023, and avoid incurring potentially unnecessary costs of 14 trial preparation. 15 16 DATED: July 28, 2023 MANNING & KASS ELLROD, RAMIREZ, TRESTER LLP 17 18 19 20 By: 21 Jeffrey M. Lenkov 22 Daniel J. Sullivan Attorneys for Defendants, MAURICIO G. CEJA 23 MADRIGAL, CARRERA GARCIA TRANSPORT, LLC and WADE 24 TRANSPORTATION COMPANY, INC. 25 26 27 28 4868-9652-1331.1 7 DEFENDANTS’ EX PARTE APPLICATION TO CONTINUE TRIAL AND ALL RELATED DATES; MEMORANDUM OF POINTS AND AUTHORITIES 1 PROOF OF SERVICE 2 STATE OF CALIFORNIA, COUNTY OF LOS ANGELES 3 At the time of service, I was over 18 years of age and not a party to this action. I am employed in the County of Los Angeles, State of California. My business address is 801 S. 4 Figueroa St, 15th Floor, Los Angeles, CA 90017-3012. 5 On July 28, 2023, I served true copies of the following document(s) described as DEFENDANTS MAURICIO G. CEJA MADRIGAL, CARRERA GARCIA TRANSPORT, 6 LLC, AND WADE TRANSPORTATION COMPANY, INC.’S EX PARTE APPLICATION TO CONTINUE TRIAL AND ALL RELATED DATES; MEMORANDUM OF POINTS 7 AND AUTHORITIES on the interested parties in this action as follows: 8 Anna Dubrovsky, Esq. Pavel Krepkiy, Esq. 9 ANNA DUBROVSKY LAW GROUP, INC. 601 Montgomery Street, Suite 2015 10 San Francisco, CA 94111 T: (415) 746-1477 11 F: (415) 746-1478 anna@dubrovskylawyers.com 12 clerk@dubrovskylawyers.com pavel@dubrovskylawyers.com 13 Attorneys for Plaintiffs 14 Jesse B. Crisp, Esq. Gregory W. Jemison, Esq. 15 LAW OFFICES OF J.CHRISP 6997 Highway 29 16 Lower Lake, CA 95493 Phone: (707) 994-0529 17 Fax: (707) 995-3529 eservice@chrisplaw.com 18 jesse@chrisplaw.com Attorneys for Plaintiffs 19 BY E-MAIL OR ELECTRONIC TRANSMISSION: I caused a copy of the 20 document(s) to be sent from e-mail address gloria.salata@manningkass.com to the persons at the e-mail addresses listed in the Service List. I did not receive, within a reasonable time after the 21 transmission, any electronic message or other indication that the transmission was unsuccessful. 22 I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. 23 Executed on July 28, 2023, at Los Angeles, California. 24 25 26 Gloria Salata 27 28 4868-9652-1331.1 8 DEFENDANTS’ EX PARTE APPLICATION TO CONTINUE TRIAL AND ALL RELATED DATES; MEMORANDUM OF POINTS AND AUTHORITIES