Preview
Collin J. Vierra (State Bar No. 322720)
1 EIMER STAHL LLP
99 Almaden Blvd., Suite 600
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San Jose, CA 95113-1605
3 Telephone: (408) 889-1668
Email: cvierra@eimerstahl.com
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Attorney for Plaintiffs Robert Arntsen,
5 Mary Lee, Arntsen Family Partnership, LP,
6 Brian Christopher Dunn Custodianship,
John Ho, and Jacky Huang
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8 SUPERIOR COURT OF THE STATE OF CALIFORNIA
9 COUNTY OF SAN MATEO
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Robert Arntsen; Mary Lee; Arntsen Family Lead Case No. 22-CIV-01148
11 Partnership, LP; Brian Christopher Dunn (Consolidated With Case No. 23-CIV-01099)
Custodianship, John Ho, and Quanyu Huang;
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Dept. 21
13 Plaintiffs,
v. Hon. Robert D. Foiles
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David M. Bragg; Silicon Valley Real Ventures MEMORANDUM OF POINTS AND
15 LLC; SVRV 385 Moore, LLC; SVRV 387 AUTHORITIES IN SUPPORT OF
16 Moore, LLC; Gregory J. Davis; Kevin Wolfe; PLAINTIFFS’ MOTION FOR TRIAL
Jason Justesen; Paramont Woodside, LLC; PREFERENCE
17 Paramont Capital, LLC; Monks Family Trust;
TEH Capital LLC; Caproc III, LLC; WZ Date: October 20, 2023
18 Partners, LLC; McClan Trust; Wild Rose Time: 9:00 a.m.
Irrevocable Trust; Black Horse Holdings, Dept.: 21
19 LLC; Phil Stoker; Diane Stoker; Scott O’Neil;
20 Dale Huish; and DOES 1–20,
21 Defendants.
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INTRODUCTION
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Siblings Robert Arnsten, Mary Lee, and Martha Dunn, who manages the Arntsen Family
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Partnership, LP and the Brian Christopher Dunn Custodianship (the “Arntsens”), are each over 70
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years old and in ill health. This Court is required to grant their motion for trial preference pursuant
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to Code of Civil Procedure section 36(a).
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John Ho and Quanyu “Jacky” Huang are co-Plaintiffs with the Arntsens. Together, the
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Arntsens, John, and Jacky are represented by the same counsel; assert claims against the same set
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of Defendants regarding the same fraudulent real-estate scheme at the heart of this litigation (the
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“Moore Road Project”); base their claims on the same sets of fact and law; assert their claims under
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the same consolidated complaint (the “SAC”); entered into a joint settlement agreement with
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former Defendant Kurtis Kludt and have made joint settlement offers to other Defendants in this
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case; are sharing in all fees, costs, and recoveries in this litigation and in all related proceedings;
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are each witnesses on each other’s behalf; and are jointly responding to and taking discovery. This
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Court should also grant the motion for trial preference as to John and Jacky pursuant to Code of
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Civil Procedure section 36(e), because to do so would serve “the interests of justice,” judicial
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economy, and the resources of numerous parties, witnesses, and their counsel, and avoid risking
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inconsistent adjudications on issues of fact and law.
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BACKGROUND
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Robert “Bob” Arntsen, Mary Lee, and Martha Dunn are siblings. (Bob Decl. ¶ 2; Mary
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Decl. ¶ 2; Martha Decl. ¶ 2.) All are over 70 years old and in ill health (collectively, the “Arntsens”
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or the “Arntsen Siblings”). (Bob Decl. ¶¶ 1, 3; Mary Decl. ¶¶ 1, 3; Martha Decl. ¶¶ 1, 3)
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Mary is the oldest Arntsen Sibling. (Mary Decl. ¶ 1.) She is 75 years old. (Id.) On August
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23, 2022, Mary suffered a stroke. (Id. ¶ 3.) Mary’s heart is permanently in AFib 1, and she is mostly
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homebound in Southern California. (Id.) She will soon undergo a heart ablation. (Id.) Her doctors
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have advised her to wear a Smart Watch at all times to monitor her heart. (Id.)
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“AFib,” or “atrial fibrillation,” “is an irregular and often very rapid heart rhythm.” (Mayo Clinic, Atrial
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fibrillation, https://tinyurl.com/y7qnw6z3 [last visited Sept. 14, 2023].) One of the dangerous complications
28 associated with AFib is blood clots, which can lead to stroke. (Id.)
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFFS’ MOTION FOR TRIAL
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1 Bob is the next-oldest Arntsen Sibling. (Bob Decl. ¶ 1) He is 73 years old. (Id.) On May 2,
2 2023, Bob suffered a massive, near-fatal stroke and was in a major car accident. (Id. ¶ 3.) Doctors
3 were able to remove some, but not all, of the clot in his brain. (Id.) He has regular appointments
4 with multiple doctors to monitor his condition. (Id.) His doctors have advised him to wear a Smart
5 Watch at all times to monitor his heart. (Id.)
6 Martha is the youngest Arntsen Sibling. (Martha Decl. ¶ 1) She is 71 years old. (Id.) On
7 August 31, 2023, she underwent emergency hospitalization after experiencing chest pain at her
8 home immediately after her deposition in this case. (Id. ¶ 3.) Martha’s physicians have told her she
9 is also susceptible to suffering a stroke. (Id.) Her doctors have ordered several tests for her in light
10 of her heart issues. (Id.)
11 The Arntsen Siblings (Bob and Mary individually, and Martha as the manager of the
12 Arntsen Family Partnership, LP and the Brian Christopher Dunn Custodianship) initiated this
13 action in March 2022. (Compl. (March 15, 2022).) They were immediately met with obstruction
14 by the Defendants. Bragg and SVRV (collectively, “Bragg”) defaulted, spoliated evidence, and
15 engaged in myriad other discovery abuses. (See, e.g., Order Granting Pls’ Mot. to Compel & for
16 Sanctions (Sept. 15, 2023).) The Paramont Defendants—who have four attorneys of record
17 participating in this case—have repeatedly asserted that they are not available for major actions in
18 this case because they were too busy with other trials. (Vierra Decl. ¶ 2.) In one particularly
19 egregious instance, they told Plaintiffs that they would have to be patient “for the next half year or
20 so” in trying to schedule third-party depositions “because we do have a great many trials.” (Id. ¶ 3
21 & Ex. A.) When Plaintiffs tried to reschedule depositions seven months later, the Paramont
22 Defendants said they still needed more time to schedule depositions because they were too busy
23 with other cases. (Id. ¶ 4 & Ex. B.)
24 In September 2022, John Ho and Quanyu “Jacky” Huang informed Defendants that they
25 intended to join this suit, and that Plaintiffs would file a consolidated amended complaint. (Id. ¶ 5.)
26 John and Jacky assert materially identical claims to the Arntsens. (Id.; see generally SAC (June
27 30, 2023).) They also allege they were members in the Moore Road LLCs and were defrauded out
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFFS’ MOTION FOR TRIAL
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1 of hundreds of thousands of dollars by Defendants. (See generally SAC.) They are represented by
2 the same counsel and are sharing in all litigation fees, costs, and recoveries with the Arntsens.
3 (Vierra Decl. ¶ 5.) In good faith, Plaintiffs agreed that Defendants would not promptly have to
4 answer the then-operative complaint asserted on behalf of the Arntsens, given that they intended
5 to file a consolidated complaint that included John and Jacky. (Stip. (Sept. 21, 2022).) In November
6 2022, all Plaintiffs—John, Jacky, and the Arntsens—entered into a joint settlement with former
7 Defendant Kurtis Kludt. (Id.)
8 Before Plaintiffs could file their consolidated complaint, Bragg—the central Defendant in
9 this action—declared bankruptcy, automatically staying proceedings as to him. (11 U.S.C.
10 § 362(a).) The stay also prevented Plaintiffs from filing their consolidated complaint adding John
11 and Jacky. (See id.)
12 Plaintiffs were forced to pursue their claims in the bankruptcy court. Bragg defaulted to
13 those claims, as well. (Entry of Dft., Arntsen et al. v. Bragg, Case No. 22-02112 (Bankr. E.D. Cal.
14 Jan. 26, 2023).) He also admitted that he made numerous false statements in his bankruptcy
15 petition, which ultimately required that he amend his petition later in 2023. (Id. ¶ 6.)
16 The bankruptcy court lifted the automatic stay on February 24, 2023, and ordered Bragg to
17 appear in this court for all proceedings through judgment. (Order Denying Mot. for Dft. Jdgmt.,
18 Arntsen et al. v. Bragg, Case No. 22-02112 (Bankr. E.D. Cal. Feb. 24, 2023).) But Bragg
19 immediately defaulted again. (Entry of Dft. (Feb. 28, 2023).)
20 The Paramont Defendants continued to assert that they were unavailable to participate
21 meaningfully in this case. On March 21, 2023, they told this Court that they would be unavailable
22 for trial for the next nine months (i.e., until January 2024) because their “lead trial” counsel, Mr.
23 Brian Zimmerman, who is admitted pro hac vice in this case, was too busy with other trials.
24 (Paramont Defendants’ Case Mgmt. Stmt. (Mar. 22, 2023) [“Lead trial counsel, Brian
25 Zimmerman, Esq. (admitted pro hac vice) will be in trials for the remainder of 2023.”].) The
26 Paramont Defendants did not explain why any of their other three counsel of record—including
27 their two California-barred attorneys, Ms. Jessica Chong and Mr. Ernesto Aldover—could not be
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1 available for trial in 2023. (See id.) And on September 5, 2023, the Paramont Defendants again
2 told this Court that they would be unavailable for the next nine months because Mr. Zimmerman
3 was too busy with other trials. (Paramont Defendants’ Case Mgmt. Stmt. (Sept. 5, 2023)
4 [“Paramont Defendants will be prepared to proceed [to trial] in Summer of 2024 or later. . . . [L]ead
5 trial counsel, Brian Zimerman, ha[s] trial set in other matters across the country until May of
6 2024.”].)
7 Plaintiffs have suffered immensely while Defendants have engaged in all manner of
8 obstruction and delay. Not only have they been unable to vindicate their claims—which total
9 nearly $1 million before prejudgment interest and punitive or treble damages—but each of the
10 Arntsen Siblings has suffered major, and in some cases, near-fatal, health events while Defendants
11 have dragged out these proceedings.
12 LEGAL STANDARD
13 Code of Civil Procedure section 36(a) provides: “A party to a civil action who is over 70
14 years of age may petition the court for a preference, which the court shall grant if the court makes
15 both of the following findings: (1) The party has a substantial interest in the action as a whole.
16 (2) The health of the party is such that a preference is necessary to prevent prejudicing the party’s
17 interest in the litigation.” “A consistent line of precedent . . . establish[es] that [section 36(a)] grants
18 a mandatory and absolute right to trial preference over all other civil matters lacking such a
19 preference; the trial court ‘shall’ grant the preference and has no discretion to avoid the command
20 of section 36(a) in the interest of efficient management of the court’s docket as a whole.” (Miller
21 v. Super. Ct. (1990) 221 Cal.App.3d 1200, 1204 [citing Rice v. Super. Ct. (1982) 136 Cal.App.3d
22 81, 86–87].)
23 Code of Civil Procedure section 36(e) further provides: “Notwithstanding any other
24 provision of law, the court may in its discretion grant a motion for preference that is supported by
25 a showing that satisfies the court that the interests of justice will be served by granting this
26 preference.”
27 Code of Civil Procedure section 36(f) provides: “Upon the granting of such a motion for
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFFS’ MOTION FOR TRIAL
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1 preference, the court shall set the matter for trial not more than 120 days from that date[.]”
2 A. The Arntsens Must Be Granted Trial Preference Under Section 36(a)
3 Each of the Arntsens “is over 70 years of age.” (Code Civ. P. § 36(a); Bob Decl. ¶ 1; Mary
4 Decl. ¶ 1; Martha Decl. ¶ 1.) Each has “substantial interest in the action as a whole.” (Code Civ.
5 P. § 36(a)(1).) Indeed, even Mary, who has the least substantial interest in the action, claims over
6 $100,000 in compensatory damages before prejudgment interest and punitive or treble damages.
7 (SAC ¶¶ 35, 94, 150, Request for Relief.) That plainly satisfies section 36(a)(1)’s “substantial
8 interest” requirement.
9 “The health” of each of the Arntsens is also “such that a preference is necessary to prevent
10 prejudicing the party’s interest in the litigation.” (Code Civ. P. § 36(b)(2).) The Arntsen Siblings
11 are all in ill health, with two of them having suffered strokes, and one of them having undergone
12 emergency hospitalization, while this litigation was pending. (Bob Decl. ¶ 3; Mary Decl. ¶ 3;
13 Martha Decl. ¶ 3.) While the Arntsens and their loved ones pray that they will fully recover and
14 remain healthy, it is well-recognized that senior citizens who suffer major health events are likely
15 to suffer such events again. 2
16 It is evident that the Arntsens are in ill health, and that each month of delay poses greater
17 risks to their wellbeing. Accordingly, the Court must grant them a trial preference under section
18 36(a).
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See, e.g., American Stroke Association, https://tinyurl.com/2ccju8lc [last visited Sept. 14, 2023] [noting
that “1 in 4 stroke survivors will have another stroke.”]; American Heart Association,
22 https://tinyurl.com/yrl6l6uc [last visited Sept. 14, 2023] [“LTR of developing either stroke or dementia at
age 65 [or older] is >1 in 3 . . . for women and ~1 in 4 for men]; Sunnybrook Health Sciences Center,
23 https://tinyurl.com/yuvcfwx3 [last visited Sept. 14, 2023] [after a person experiences a first stroke, their
risk of suffering another strike in the next year is “15 times greater than for the general population”]; cf.
24 National Institutes of Health, https://tinyurl.com/yvd4m4nq [last visited Sept. 14, 2023] [health risk is
higher for those for whom physical clots have not been fully removed].) Health issues, including
25 susceptibility to strokes, are also genetic. (Stroke.org, https://tinyurl.com/y7hqubxc [last visited Sept. 14,
2023] [noting that people are more likely to suffer strokes whose close relatives have also suffered strokes].)
26 Strokes impair memory and ability to speak. (National Institutes of Health, https://tinyurl.com/yuxz7fto
[last visited Sept. 14, 2023] [“Approximately one third of stroke victims will develop memory problems.
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Losing skills in this area may affect ability to conduct activities of daily living[.]”]; Stroke.org,
28 https://tinyurl.com/yxedjezc [discussing speech impairments from strokes].
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B. John and Jacky Should Be Granted Trial Preference Under Section 36(e)
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“The interests of justice will be served” by granting trial preference to John and Jacky, as
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well. John and Jacky are co-Plaintiffs with the Arntsens in this suit. They each assert claims of
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more than $100,000, not including prejudgment interest and punitive damages. (SAC ¶¶ 37–38,
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105, 147, 105, Request for Relief.) They allege materially identical claims against the exact same
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Defendants. (See generally SAC.) They are represented by the same counsel. (Vierra Decl. ¶ 5.)
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They are sharing in all litigation fees, costs, and recoveries with the Arntsens. (Id.) They have
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already jointly settled claims with one Defendant, and have made joint settlement offers to other
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Defendants. (Id.) They are jointly responding to and taking discovery. (Id.) They are operating
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under a single consolidated complaint. (See generally SAC.) The parties have already stipulated
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to, and the Court has already approved, consolidating these cases for all purposes except trial.
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(Stip. (Aug. 4, 2023); Order Consolidating Cases (Aug. 22, 2023).) Were the Arntsens’ claims to
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be tried separately from John’s and Jacky’s claims, John and Jacky would be witnesses for the
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Arntsens, and the Arntsens would be witnesses for John and Jacky. (Vierra Decl. ¶ 5.)
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It would be absurd to force the Court to take an additional week of its and its staff’s time;
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to empanel a second jury; to force the same Defendants (including out-of-state Defendants) and
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their counsel back to Court; and to force the same third-party witnesses back to Court, for a second
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trial. Separate trials would also substantially risk inconsistent adjudications on issues of law and
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fact. (Code Civ. P. § 1048(a).) And it would be not only absurd, but dangerous, to force the
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Arntsens—who are already in ill health—to come back to Court for a second, stressful trial. 3
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Thus, the “interests of justice” plainly counsel in favor of setting a single, preferential trial
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date for all Plaintiffs.
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C. There Is No Prejudice to the Parties’ Calendars From Setting a Preferential
23 Trial
24 Regardless of how the Court rules on the Paramont Defendants’ partial demurrer and
25 motion to strike on September 29, 2023, many of Plaintiffs’ claims will proceed against
26 Defendants Bragg, SVRV, SVRV 385 Moore, LLC, SVRV 387 Moore, LLC, and Gregory J.
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Heart and Stroke Foundation, https://tinyurl.com/yqqqnwvn [last visited Sept. 14, 2023] [noting the
28 “undeniable links” between stress and suffering a stroke].
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1 Davis, because they have not demurred to nor sought to strike various claims. (Demurrer (Aug.
2 25, 2023); Mot. to Strike (Aug. 25, 2023).) Plaintiffs’ and all the Paramont Defendants’ depositions
3 will be completed by the end of September. (Vierra Decl. ¶ 7.) Bragg’s deposition will be
4 completed by mid-October. (Id.)
5 A hearing on a motion for summary judgment must be noticed for 75 days from the date
6 of filing. (Code Civ. P. § 473c(a).) And a motion for summary judgment need only be heard 30
7 days before trial. (Id., subd. (a)(3).) Thus, the parties have plenty of time to file, and this Court has
8 plenty of time to resolve, motion(s) for summary judgment, should they wish to do so, without
9 impairing the Court’s ability to set a preferential trial.
10 CONCLUSION
11 The Court should grant Plaintiffs’ motion for trial preference and schedule a trial for not
12 more than 120 days from the date of granting said motion. (Code Civ. P. § 36(f).)
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Dated: September 18, 2023 By: ______________________
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Collin J. Vierra
17 EIMER STAHL, LLP
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Attorney for Plaintiffs
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Collin J. Vierra (State Bar No. 322720) 1 EIMER STAHL LLP 99 Almaden Blvd., Suite 600 2 San Jose, CA 95113-1605 3 Telephone: (408) 889-1668 Email: cvierra@eimerstahl.com 4 Attorney for Plaintiffs Robert Arntsen, 5 Mary Lee, Arntsen Family Partnership, LP, 6 Brian Christopher Dunn Custodianship, John Ho, and Jacky Huang 7 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 COUNTY OF SAN MATEO 10 Robert Arntsen; Mary Lee; Arntsen Family Lead Case No. 22-CIV-01148 11 Partnership, LP; Brian Christopher Dunn (Consolidated With Case No. 23-CIV-01099) Custodianship, John Ho, and Quanyu Huang; 12 Dept. 21 13 Plaintiffs, v. Hon. Robert D. Foiles 14 David M. Bragg; Silicon Valley Real Ventures MEMORANDUM OF POINTS AND 15 LLC; SVRV 385 Moore, LLC; SVRV 387 AUTHORITIES IN SUPPORT OF 16 Moore, LLC; Gregory J. Davis; Kevin Wolfe; PLAINTIFFS’ MOTION FOR TRIAL Jason Justesen; Paramont Woodside, LLC; PREFERENCE 17 Paramont Capital, LLC; Monks Family Trust; TEH Capital LLC; Caproc III, LLC; WZ Date: October 20, 2023 18 Partners, LLC; McClan Trust; Wild Rose Time: 9:00 a.m. Irrevocable Trust; Black Horse Holdings, Dept.: 21 19 LLC; Phil Stoker; Diane Stoker; Scott O’Neil; 20 Dale Huish; and DOES 1–20, 21 Defendants. 22 23 24 25 26 27 28 1 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFFS’ MOTION FOR TRIAL PREFERENCE INTRODUCTION 1 Siblings Robert Arnsten, Mary Lee, and Martha Dunn, who manages the Arntsen Family 2 Partnership, LP and the Brian Christopher Dunn Custodianship (the “Arntsens”), are each over 70 3 years old and in ill health. This Court is required to grant their motion for trial preference pursuant 4 to Code of Civil Procedure section 36(a). 5 John Ho and Quanyu “Jacky” Huang are co-Plaintiffs with the Arntsens. Together, the 6 Arntsens, John, and Jacky are represented by the same counsel; assert claims against the same set 7 of Defendants regarding the same fraudulent real-estate scheme at the heart of this litigation (the 8 “Moore Road Project”); base their claims on the same sets of fact and law; assert their claims under 9 the same consolidated complaint (the “SAC”); entered into a joint settlement agreement with 10 former Defendant Kurtis Kludt and have made joint settlement offers to other Defendants in this 11 case; are sharing in all fees, costs, and recoveries in this litigation and in all related proceedings; 12 are each witnesses on each other’s behalf; and are jointly responding to and taking discovery. This 13 Court should also grant the motion for trial preference as to John and Jacky pursuant to Code of 14 Civil Procedure section 36(e), because to do so would serve “the interests of justice,” judicial 15 economy, and the resources of numerous parties, witnesses, and their counsel, and avoid risking 16 inconsistent adjudications on issues of fact and law. 17 BACKGROUND 18 Robert “Bob” Arntsen, Mary Lee, and Martha Dunn are siblings. (Bob Decl. ¶ 2; Mary 19 Decl. ¶ 2; Martha Decl. ¶ 2.) All are over 70 years old and in ill health (collectively, the “Arntsens” 20 or the “Arntsen Siblings”). (Bob Decl. ¶¶ 1, 3; Mary Decl. ¶¶ 1, 3; Martha Decl. ¶¶ 1, 3) 21 Mary is the oldest Arntsen Sibling. (Mary Decl. ¶ 1.) She is 75 years old. (Id.) On August 22 23, 2022, Mary suffered a stroke. (Id. ¶ 3.) Mary’s heart is permanently in AFib 1, and she is mostly 23 homebound in Southern California. (Id.) She will soon undergo a heart ablation. (Id.) Her doctors 24 have advised her to wear a Smart Watch at all times to monitor her heart. (Id.) 25 26 1 “AFib,” or “atrial fibrillation,” “is an irregular and often very rapid heart rhythm.” (Mayo Clinic, Atrial 27 fibrillation, https://tinyurl.com/y7qnw6z3 [last visited Sept. 14, 2023].) One of the dangerous complications 28 associated with AFib is blood clots, which can lead to stroke. (Id.) 2 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFFS’ MOTION FOR TRIAL PREFERENCE 1 Bob is the next-oldest Arntsen Sibling. (Bob Decl. ¶ 1) He is 73 years old. (Id.) On May 2, 2 2023, Bob suffered a massive, near-fatal stroke and was in a major car accident. (Id. ¶ 3.) Doctors 3 were able to remove some, but not all, of the clot in his brain. (Id.) He has regular appointments 4 with multiple doctors to monitor his condition. (Id.) His doctors have advised him to wear a Smart 5 Watch at all times to monitor his heart. (Id.) 6 Martha is the youngest Arntsen Sibling. (Martha Decl. ¶ 1) She is 71 years old. (Id.) On 7 August 31, 2023, she underwent emergency hospitalization after experiencing chest pain at her 8 home immediately after her deposition in this case. (Id. ¶ 3.) Martha’s physicians have told her she 9 is also susceptible to suffering a stroke. (Id.) Her doctors have ordered several tests for her in light 10 of her heart issues. (Id.) 11 The Arntsen Siblings (Bob and Mary individually, and Martha as the manager of the 12 Arntsen Family Partnership, LP and the Brian Christopher Dunn Custodianship) initiated this 13 action in March 2022. (Compl. (March 15, 2022).) They were immediately met with obstruction 14 by the Defendants. Bragg and SVRV (collectively, “Bragg”) defaulted, spoliated evidence, and 15 engaged in myriad other discovery abuses. (See, e.g., Order Granting Pls’ Mot. to Compel & for 16 Sanctions (Sept. 15, 2023).) The Paramont Defendants—who have four attorneys of record 17 participating in this case—have repeatedly asserted that they are not available for major actions in 18 this case because they were too busy with other trials. (Vierra Decl. ¶ 2.) In one particularly 19 egregious instance, they told Plaintiffs that they would have to be patient “for the next half year or 20 so” in trying to schedule third-party depositions “because we do have a great many trials.” (Id. ¶ 3 21 & Ex. A.) When Plaintiffs tried to reschedule depositions seven months later, the Paramont 22 Defendants said they still needed more time to schedule depositions because they were too busy 23 with other cases. (Id. ¶ 4 & Ex. B.) 24 In September 2022, John Ho and Quanyu “Jacky” Huang informed Defendants that they 25 intended to join this suit, and that Plaintiffs would file a consolidated amended complaint. (Id. ¶ 5.) 26 John and Jacky assert materially identical claims to the Arntsens. (Id.; see generally SAC (June 27 30, 2023).) They also allege they were members in the Moore Road LLCs and were defrauded out 28 3 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFFS’ MOTION FOR TRIAL PREFERENCE 1 of hundreds of thousands of dollars by Defendants. (See generally SAC.) They are represented by 2 the same counsel and are sharing in all litigation fees, costs, and recoveries with the Arntsens. 3 (Vierra Decl. ¶ 5.) In good faith, Plaintiffs agreed that Defendants would not promptly have to 4 answer the then-operative complaint asserted on behalf of the Arntsens, given that they intended 5 to file a consolidated complaint that included John and Jacky. (Stip. (Sept. 21, 2022).) In November 6 2022, all Plaintiffs—John, Jacky, and the Arntsens—entered into a joint settlement with former 7 Defendant Kurtis Kludt. (Id.) 8 Before Plaintiffs could file their consolidated complaint, Bragg—the central Defendant in 9 this action—declared bankruptcy, automatically staying proceedings as to him. (11 U.S.C. 10 § 362(a).) The stay also prevented Plaintiffs from filing their consolidated complaint adding John 11 and Jacky. (See id.) 12 Plaintiffs were forced to pursue their claims in the bankruptcy court. Bragg defaulted to 13 those claims, as well. (Entry of Dft., Arntsen et al. v. Bragg, Case No. 22-02112 (Bankr. E.D. Cal. 14 Jan. 26, 2023).) He also admitted that he made numerous false statements in his bankruptcy 15 petition, which ultimately required that he amend his petition later in 2023. (Id. ¶ 6.) 16 The bankruptcy court lifted the automatic stay on February 24, 2023, and ordered Bragg to 17 appear in this court for all proceedings through judgment. (Order Denying Mot. for Dft. Jdgmt., 18 Arntsen et al. v. Bragg, Case No. 22-02112 (Bankr. E.D. Cal. Feb. 24, 2023).) But Bragg 19 immediately defaulted again. (Entry of Dft. (Feb. 28, 2023).) 20 The Paramont Defendants continued to assert that they were unavailable to participate 21 meaningfully in this case. On March 21, 2023, they told this Court that they would be unavailable 22 for trial for the next nine months (i.e., until January 2024) because their “lead trial” counsel, Mr. 23 Brian Zimmerman, who is admitted pro hac vice in this case, was too busy with other trials. 24 (Paramont Defendants’ Case Mgmt. Stmt. (Mar. 22, 2023) [“Lead trial counsel, Brian 25 Zimmerman, Esq. (admitted pro hac vice) will be in trials for the remainder of 2023.”].) The 26 Paramont Defendants did not explain why any of their other three counsel of record—including 27 their two California-barred attorneys, Ms. Jessica Chong and Mr. Ernesto Aldover—could not be 28 4 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFFS’ MOTION FOR TRIAL PREFERENCE 1 available for trial in 2023. (See id.) And on September 5, 2023, the Paramont Defendants again 2 told this Court that they would be unavailable for the next nine months because Mr. Zimmerman 3 was too busy with other trials. (Paramont Defendants’ Case Mgmt. Stmt. (Sept. 5, 2023) 4 [“Paramont Defendants will be prepared to proceed [to trial] in Summer of 2024 or later. . . . [L]ead 5 trial counsel, Brian Zimerman, ha[s] trial set in other matters across the country until May of 6 2024.”].) 7 Plaintiffs have suffered immensely while Defendants have engaged in all manner of 8 obstruction and delay. Not only have they been unable to vindicate their claims—which total 9 nearly $1 million before prejudgment interest and punitive or treble damages—but each of the 10 Arntsen Siblings has suffered major, and in some cases, near-fatal, health events while Defendants 11 have dragged out these proceedings. 12 LEGAL STANDARD 13 Code of Civil Procedure section 36(a) provides: “A party to a civil action who is over 70 14 years of age may petition the court for a preference, which the court shall grant if the court makes 15 both of the following findings: (1) The party has a substantial interest in the action as a whole. 16 (2) The health of the party is such that a preference is necessary to prevent prejudicing the party’s 17 interest in the litigation.” “A consistent line of precedent . . . establish[es] that [section 36(a)] grants 18 a mandatory and absolute right to trial preference over all other civil matters lacking such a 19 preference; the trial court ‘shall’ grant the preference and has no discretion to avoid the command 20 of section 36(a) in the interest of efficient management of the court’s docket as a whole.” (Miller 21 v. Super. Ct. (1990) 221 Cal.App.3d 1200, 1204 [citing Rice v. Super. Ct. (1982) 136 Cal.App.3d 22 81, 86–87].) 23 Code of Civil Procedure section 36(e) further provides: “Notwithstanding any other 24 provision of law, the court may in its discretion grant a motion for preference that is supported by 25 a showing that satisfies the court that the interests of justice will be served by granting this 26 preference.” 27 Code of Civil Procedure section 36(f) provides: “Upon the granting of such a motion for 28 5 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFFS’ MOTION FOR TRIAL PREFERENCE 1 preference, the court shall set the matter for trial not more than 120 days from that date[.]” 2 A. The Arntsens Must Be Granted Trial Preference Under Section 36(a) 3 Each of the Arntsens “is over 70 years of age.” (Code Civ. P. § 36(a); Bob Decl. ¶ 1; Mary 4 Decl. ¶ 1; Martha Decl. ¶ 1.) Each has “substantial interest in the action as a whole.” (Code Civ. 5 P. § 36(a)(1).) Indeed, even Mary, who has the least substantial interest in the action, claims over 6 $100,000 in compensatory damages before prejudgment interest and punitive or treble damages. 7 (SAC ¶¶ 35, 94, 150, Request for Relief.) That plainly satisfies section 36(a)(1)’s “substantial 8 interest” requirement. 9 “The health” of each of the Arntsens is also “such that a preference is necessary to prevent 10 prejudicing the party’s interest in the litigation.” (Code Civ. P. § 36(b)(2).) The Arntsen Siblings 11 are all in ill health, with two of them having suffered strokes, and one of them having undergone 12 emergency hospitalization, while this litigation was pending. (Bob Decl. ¶ 3; Mary Decl. ¶ 3; 13 Martha Decl. ¶ 3.) While the Arntsens and their loved ones pray that they will fully recover and 14 remain healthy, it is well-recognized that senior citizens who suffer major health events are likely 15 to suffer such events again. 2 16 It is evident that the Arntsens are in ill health, and that each month of delay poses greater 17 risks to their wellbeing. Accordingly, the Court must grant them a trial preference under section 18 36(a). 19 20 21 2 See, e.g., American Stroke Association, https://tinyurl.com/2ccju8lc [last visited Sept. 14, 2023] [noting that “1 in 4 stroke survivors will have another stroke.”]; American Heart Association, 22 https://tinyurl.com/yrl6l6uc [last visited Sept. 14, 2023] [“LTR of developing either stroke or dementia at age 65 [or older] is >1 in 3 . . . for women and ~1 in 4 for men]; Sunnybrook Health Sciences Center, 23 https://tinyurl.com/yuvcfwx3 [last visited Sept. 14, 2023] [after a person experiences a first stroke, their risk of suffering another strike in the next year is “15 times greater than for the general population”]; cf. 24 National Institutes of Health, https://tinyurl.com/yvd4m4nq [last visited Sept. 14, 2023] [health risk is higher for those for whom physical clots have not been fully removed].) Health issues, including 25 susceptibility to strokes, are also genetic. (Stroke.org, https://tinyurl.com/y7hqubxc [last visited Sept. 14, 2023] [noting that people are more likely to suffer strokes whose close relatives have also suffered strokes].) 26 Strokes impair memory and ability to speak. (National Institutes of Health, https://tinyurl.com/yuxz7fto [last visited Sept. 14, 2023] [“Approximately one third of stroke victims will develop memory problems. 27 Losing skills in this area may affect ability to conduct activities of daily living[.]”]; Stroke.org, 28 https://tinyurl.com/yxedjezc [discussing speech impairments from strokes]. 6 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFFS’ MOTION FOR TRIAL PREFERENCE B. John and Jacky Should Be Granted Trial Preference Under Section 36(e) 1 “The interests of justice will be served” by granting trial preference to John and Jacky, as 2 well. John and Jacky are co-Plaintiffs with the Arntsens in this suit. They each assert claims of 3 more than $100,000, not including prejudgment interest and punitive damages. (SAC ¶¶ 37–38, 4 105, 147, 105, Request for Relief.) They allege materially identical claims against the exact same 5 Defendants. (See generally SAC.) They are represented by the same counsel. (Vierra Decl. ¶ 5.) 6 They are sharing in all litigation fees, costs, and recoveries with the Arntsens. (Id.) They have 7 already jointly settled claims with one Defendant, and have made joint settlement offers to other 8 Defendants. (Id.) They are jointly responding to and taking discovery. (Id.) They are operating 9 under a single consolidated complaint. (See generally SAC.) The parties have already stipulated 10 to, and the Court has already approved, consolidating these cases for all purposes except trial. 11 (Stip. (Aug. 4, 2023); Order Consolidating Cases (Aug. 22, 2023).) Were the Arntsens’ claims to 12 be tried separately from John’s and Jacky’s claims, John and Jacky would be witnesses for the 13 Arntsens, and the Arntsens would be witnesses for John and Jacky. (Vierra Decl. ¶ 5.) 14 It would be absurd to force the Court to take an additional week of its and its staff’s time; 15 to empanel a second jury; to force the same Defendants (including out-of-state Defendants) and 16 their counsel back to Court; and to force the same third-party witnesses back to Court, for a second 17 trial. Separate trials would also substantially risk inconsistent adjudications on issues of law and 18 fact. (Code Civ. P. § 1048(a).) And it would be not only absurd, but dangerous, to force the 19 Arntsens—who are already in ill health—to come back to Court for a second, stressful trial. 3 20 Thus, the “interests of justice” plainly counsel in favor of setting a single, preferential trial 21 date for all Plaintiffs. 22 C. There Is No Prejudice to the Parties’ Calendars From Setting a Preferential 23 Trial 24 Regardless of how the Court rules on the Paramont Defendants’ partial demurrer and 25 motion to strike on September 29, 2023, many of Plaintiffs’ claims will proceed against 26 Defendants Bragg, SVRV, SVRV 385 Moore, LLC, SVRV 387 Moore, LLC, and Gregory J. 27 3 Heart and Stroke Foundation, https://tinyurl.com/yqqqnwvn [last visited Sept. 14, 2023] [noting the 28 “undeniable links” between stress and suffering a stroke]. 7 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFFS’ MOTION FOR TRIAL PREFERENCE 1 Davis, because they have not demurred to nor sought to strike various claims. (Demurrer (Aug. 2 25, 2023); Mot. to Strike (Aug. 25, 2023).) Plaintiffs’ and all the Paramont Defendants’ depositions 3 will be completed by the end of September. (Vierra Decl. ¶ 7.) Bragg’s deposition will be 4 completed by mid-October. (Id.) 5 A hearing on a motion for summary judgment must be noticed for 75 days from the date 6 of filing. (Code Civ. P. § 473c(a).) And a motion for summary judgment need only be heard 30 7 days before trial. (Id., subd. (a)(3).) Thus, the parties have plenty of time to file, and this Court has 8 plenty of time to resolve, motion(s) for summary judgment, should they wish to do so, without 9 impairing the Court’s ability to set a preferential trial. 10 CONCLUSION 11 The Court should grant Plaintiffs’ motion for trial preference and schedule a trial for not 12 more than 120 days from the date of granting said motion. (Code Civ. P. § 36(f).) 13 14 15 Dated: September 18, 2023 By: ______________________ 16 Collin J. Vierra 17 EIMER STAHL, LLP 18 Attorney for Plaintiffs 19 20 21 22 23 24 25 26 27 28 8 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFFS’ MOTION FOR TRIAL PREFERENCE