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I SHANNON B. JONES LAW GROUP, INC.
SHANNON B. JONES (Bar No. 149222)
2 sbiQsbi-law.corn
LINDSEY A. MORGAN (Bar No. 274214)
3 IamQsbi-law.corn
208 W. El Pintado Road
4 Danville, California 94526
Telephone: (925) 837-2317
5 Facsimile: (925) 837-4831
6 Attorneys for Pl ainti ff
PACIFIC UNION INTERNATIONAL, INC.
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IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF PLACER
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PACIFIC UNION INTERNATIONAL INC ) Case No. SCV0042080
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Plaintiff, ) PACIFIC UNION INTERNATIONAL,
12 INC.'S OPPOSITION TO ERIK
)
) LUDWICK'S EX PARTE APPLICATION
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) FOR ORDER SHORTENING TIME FOR
ERIK LUDWICK, an individual and ) SERVICE OF MOTION TO SEVER
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beneficiary of The Anything Trust Dated ) STATUTE OF FRAUD'S DEFENSE AT
October 12, 2007; THE ANYTHING TRUST ) TRIAL
DATED OCTOBER 12, 2007; PAUL D. )
BOOTH, in his capacity as trustee of The )
Anything Trust Dated October 12, 2007; and ) Date: July 28, 2022
DOES 1-50, ) Time: 8:00 a.m.
) Dept: 30
Defendants. )
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) Complaint Filed: November 7, 2018
) Trial Date: August 8, 2022
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22 Plaintiff PACIFIC UNION INTERNATIONAL, INC. (" Pacific Union" )
23 respectfully submits this Opposition to the Ex Parte Application by Defendant Erik Ludwick
24 (" Defendant" ) seeking an order shortening time for the service of his motion to sever the statute of
25 frauds defense at trial (" Application" ).
Defendant brings this motion the day before the pretrial conference in this matter
27 seeking to have his motion to sever his affirmative defense regarding the statute of frauds heard on
28 shortened time. Defendant claims that this motion could not have been brought by regular notice
PACIFIC UNION INTERNATIONAL, INC.'S OPPOSITION TO ERIK LUDWICK'S EX PARTE
APPLICATION FOR ORDER SHORTENING TIME FOR SERVICE OF MOTION TO SEVER STATUTE OF
FRAUD'S DEFFNSE AT TRIAL
1 because the defense was purportedly only confirmed by depositions recently completed in this
2 matter. As such, Defendant seeks to have this motion heard on August 4, 2022.
Code of Civil Procedure section 598 provides:
The court may, when the convenience of witnesses, the ends of
justice, or the economy and efficiency of handling the litigation
would be promoted thereby, on motion of a party, after notice and
hearing, make an order, no later than the close of nretrial conference
in cases in which such uretrial conference is to be held, ... that the
trial of any issue or any part thereof shall precede the trial of any
other issue or any part thereof in the case....
8 (Code Civ. Proc. Ij598 (emphasis added).) Accordingly, the Code does not permit the Court to
9 grant Defendant's request. Such an order cannot be made following close of the pretrial
10 conference on Friday, July 29, 2022. The Court should deny Defendant's motion for this reason
11 alone.
12 There is no justification for Defendant's untimeliness in bringing this request.
13 Defendant had ample opportunity to request that the Court sever this defense in a regularly noticed
14 motion. Defendant raised this statute of frauds defense in its motion for summary judgment over
15 two years ago, in May 2020. These arguments were repeated in its opposition to Pacific Union's
16 motion for summary judgment in August 2020. Moreover, contrary to Defendant's claims, there
17 does not appear to be any new evidence learned from the recently completed depositions.
18 Defendant had every opportunity to bring a regularly noticed motion and have it heard at or prior
19 to the pretrial conference this Friday, July 29, 2022. Yet, two days before the pretrial conference
20 they give notice of this Application. There is no good cause for Defendant's delay.
21 In addition, there is no basis to grant Defendant's request to sever the statute of
22 frauds defense. Defendant contends that the Court may hear the statute of frauds defense first
23 under Code of Civil Procedure section 597. This section is inapplicable to Defendant's statute of
24 frauds defense. Section 597 provides:
25 When the answer pleads that the action is barred by the statute of
limitations, or by a prior judgment, or that another action is pending
26 upon the same cause of action, or sets up any other defense not
involving the merits of the plaintiff s cause o f action but constituting
27 a bar or ground of abatement to the prosecution thereof, the court
may, either upon its own motion or upon the motion of any party,
28 proceed to the trial of the special defense or defenses before the trial
2
PACIFIC UNION INTERNATIONAL, INC.'S OPPOSITION TO ERIK LUDWICK'S EX PARTE
APPLICATION FOR ORDER SHORTENING TIME FOR SERVICE OF MOTION TO SEVER STATUTE OF
FRAUD S DEFENSE AT TRIAL
of any other issue in the case ..
2 (Code Civ. Proc. I'1597.) The statute of frauds defense is not a special defense contemplated by this
procedure. As acknowledged by Defendant, this defense necessarily involves the merits of
Plaintiff s claim, as Plaintiff will show in its case-in-chief the existence of an agreement upon
which it bases its claim,
The objective of bifurcating a nial is to expedite and simplify the presentation of
evidence. (Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 888.) Defendant contends that
8 the severance of this defense will result in judicial economy. However, the presentation of this
9 defense will ultimately result in the duplication of evidence and inconvenience of the witnesses
10 and the Court. The same witnesses will be called andre-called to testify. The same issues udll be
discussed and the same evidence will be introduced.
12 For these reasons, Plaintiff respectfully requests that the Court deny this
Application.
Dated: July27,2022
SHANNON B. JONES LAW GROUP, INC.
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By
17 LINDSEY A. IvteRGAN
Attorneys for Plaintiff
18 PACIFIC UNION INTERNATIONAL, INC.
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PACIFIC UMON INTERNATIONAL, INC.'S OPPOSITION TO ERIK LUDWICK'S EX PARTE
APPLICATION FOR ORDER SHORTENING TIME FOR SERVICE OF MOTION TO SEVER STATUTE OF
FRAUD S DEFENSE AT TRIAL
PROOF OF SERVICE
2
I, the undersigned, declare:
I am a resident of the State of California and over the age of eighteen years, and not
4 a party to the within action; my business address is 208 W. El Pintado Road, Danville, CA 94526.
On July 27, 2022, I served the within document(s):
5
PACIFIC UNION INTERNATIONAL, INC.'S OPPOSITION TO ERIK LUDWICK'S EX
6 PARTE APPLICATION FOR ORDER SHORTENING TIME FOR SERVICE OF
MOTION TO SEVER STATUTE OF FRAUD'S DEFENSE AT TRIAL
X by transmitting via email the above listed document(s) to the email address(es) set forth
below on this date.
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Attornevs for Defendants Eiilt Ludwick. The Co-Coiinsel for Defendants Erik Lirduiek. The
10 Anvthine Trust and Paul Booth as Trustee of
the Anvthiitr Trust
Michael A.J. Nangano, Esq.
Michael A.J. Nangano, A Law Corporation
of'he
Anvtfu'ne Ti.ust aiid Paul Booth as Trustee
Anvthint Ti ust
Lawrence E. Skidmore, Esq.
Aronowitz, Skidmore, Lyon
133 North Altadena Drive, Suite 403 200 Auburn Folsom Road, Suite 305
13 Pasadena, CA 91107 Auburn, CA 95603
mnanaanoPct Jacounscl.corn Iski dmore(chas ilaw.ora
14 patti(Rlacounsel.corn ImeltonSasilaw.oru
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I declare under penalty of perjury under California.
the laws of the State of California that the
above is true and correct.
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Executed on July 27, 2022, at Danville,
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MARK CHUANG~
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PACIFIC UNION INTERNATIONAL. INC. S OPPOSITION TO ERIK LUDW]CK S EX PARTE
APPLICATION FOR ORDER SHORTENING TIME FOR SERVICE OF MOTION TO SEVER STATUTE OF
FRAUD'S DEFFNSE AT TRIAL
Preview
I SHANNON B. JONES LAW GROUP, INC. SHANNON B. JONES (Bar No. 149222) 2 sbiQsbi-law.corn LINDSEY A. MORGAN (Bar No. 274214) 3 IamQsbi-law.corn 208 W. El Pintado Road 4 Danville, California 94526 Telephone: (925) 837-2317 5 Facsimile: (925) 837-4831 6 Attorneys for Pl ainti ff PACIFIC UNION INTERNATIONAL, INC. 7 IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF PLACER 10 PACIFIC UNION INTERNATIONAL INC ) Case No. SCV0042080 ) Plaintiff, ) PACIFIC UNION INTERNATIONAL, 12 INC.'S OPPOSITION TO ERIK ) ) LUDWICK'S EX PARTE APPLICATION 13 ) FOR ORDER SHORTENING TIME FOR ERIK LUDWICK, an individual and ) SERVICE OF MOTION TO SEVER 14 beneficiary of The Anything Trust Dated ) STATUTE OF FRAUD'S DEFENSE AT October 12, 2007; THE ANYTHING TRUST ) TRIAL DATED OCTOBER 12, 2007; PAUL D. ) BOOTH, in his capacity as trustee of The ) Anything Trust Dated October 12, 2007; and ) Date: July 28, 2022 DOES 1-50, ) Time: 8:00 a.m. ) Dept: 30 Defendants. ) 18 ) Complaint Filed: November 7, 2018 ) Trial Date: August 8, 2022 19 ) 20 ) ) ) 21 22 Plaintiff PACIFIC UNION INTERNATIONAL, INC. (" Pacific Union" ) 23 respectfully submits this Opposition to the Ex Parte Application by Defendant Erik Ludwick 24 (" Defendant" ) seeking an order shortening time for the service of his motion to sever the statute of 25 frauds defense at trial (" Application" ). Defendant brings this motion the day before the pretrial conference in this matter 27 seeking to have his motion to sever his affirmative defense regarding the statute of frauds heard on 28 shortened time. Defendant claims that this motion could not have been brought by regular notice PACIFIC UNION INTERNATIONAL, INC.'S OPPOSITION TO ERIK LUDWICK'S EX PARTE APPLICATION FOR ORDER SHORTENING TIME FOR SERVICE OF MOTION TO SEVER STATUTE OF FRAUD'S DEFFNSE AT TRIAL 1 because the defense was purportedly only confirmed by depositions recently completed in this 2 matter. As such, Defendant seeks to have this motion heard on August 4, 2022. Code of Civil Procedure section 598 provides: The court may, when the convenience of witnesses, the ends of justice, or the economy and efficiency of handling the litigation would be promoted thereby, on motion of a party, after notice and hearing, make an order, no later than the close of nretrial conference in cases in which such uretrial conference is to be held, ... that the trial of any issue or any part thereof shall precede the trial of any other issue or any part thereof in the case.... 8 (Code Civ. Proc. Ij598 (emphasis added).) Accordingly, the Code does not permit the Court to 9 grant Defendant's request. Such an order cannot be made following close of the pretrial 10 conference on Friday, July 29, 2022. The Court should deny Defendant's motion for this reason 11 alone. 12 There is no justification for Defendant's untimeliness in bringing this request. 13 Defendant had ample opportunity to request that the Court sever this defense in a regularly noticed 14 motion. Defendant raised this statute of frauds defense in its motion for summary judgment over 15 two years ago, in May 2020. These arguments were repeated in its opposition to Pacific Union's 16 motion for summary judgment in August 2020. Moreover, contrary to Defendant's claims, there 17 does not appear to be any new evidence learned from the recently completed depositions. 18 Defendant had every opportunity to bring a regularly noticed motion and have it heard at or prior 19 to the pretrial conference this Friday, July 29, 2022. Yet, two days before the pretrial conference 20 they give notice of this Application. There is no good cause for Defendant's delay. 21 In addition, there is no basis to grant Defendant's request to sever the statute of 22 frauds defense. Defendant contends that the Court may hear the statute of frauds defense first 23 under Code of Civil Procedure section 597. This section is inapplicable to Defendant's statute of 24 frauds defense. Section 597 provides: 25 When the answer pleads that the action is barred by the statute of limitations, or by a prior judgment, or that another action is pending 26 upon the same cause of action, or sets up any other defense not involving the merits of the plaintiff s cause o f action but constituting 27 a bar or ground of abatement to the prosecution thereof, the court may, either upon its own motion or upon the motion of any party, 28 proceed to the trial of the special defense or defenses before the trial 2 PACIFIC UNION INTERNATIONAL, INC.'S OPPOSITION TO ERIK LUDWICK'S EX PARTE APPLICATION FOR ORDER SHORTENING TIME FOR SERVICE OF MOTION TO SEVER STATUTE OF FRAUD S DEFENSE AT TRIAL of any other issue in the case .. 2 (Code Civ. Proc. I'1597.) The statute of frauds defense is not a special defense contemplated by this procedure. As acknowledged by Defendant, this defense necessarily involves the merits of Plaintiff s claim, as Plaintiff will show in its case-in-chief the existence of an agreement upon which it bases its claim, The objective of bifurcating a nial is to expedite and simplify the presentation of evidence. (Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 888.) Defendant contends that 8 the severance of this defense will result in judicial economy. However, the presentation of this 9 defense will ultimately result in the duplication of evidence and inconvenience of the witnesses 10 and the Court. The same witnesses will be called andre-called to testify. The same issues udll be discussed and the same evidence will be introduced. 12 For these reasons, Plaintiff respectfully requests that the Court deny this Application. Dated: July27,2022 SHANNON B. JONES LAW GROUP, INC. 15 16 By 17 LINDSEY A. IvteRGAN Attorneys for Plaintiff 18 PACIFIC UNION INTERNATIONAL, INC. 19 20 21 22 23 24 25 26 27 28 3 PACIFIC UMON INTERNATIONAL, INC.'S OPPOSITION TO ERIK LUDWICK'S EX PARTE APPLICATION FOR ORDER SHORTENING TIME FOR SERVICE OF MOTION TO SEVER STATUTE OF FRAUD S DEFENSE AT TRIAL PROOF OF SERVICE 2 I, the undersigned, declare: I am a resident of the State of California and over the age of eighteen years, and not 4 a party to the within action; my business address is 208 W. El Pintado Road, Danville, CA 94526. On July 27, 2022, I served the within document(s): 5 PACIFIC UNION INTERNATIONAL, INC.'S OPPOSITION TO ERIK LUDWICK'S EX 6 PARTE APPLICATION FOR ORDER SHORTENING TIME FOR SERVICE OF MOTION TO SEVER STATUTE OF FRAUD'S DEFENSE AT TRIAL X by transmitting via email the above listed document(s) to the email address(es) set forth below on this date. 9 Attornevs for Defendants Eiilt Ludwick. The Co-Coiinsel for Defendants Erik Lirduiek. The 10 Anvthine Trust and Paul Booth as Trustee of the Anvthiitr Trust Michael A.J. Nangano, Esq. Michael A.J. Nangano, A Law Corporation of'he Anvtfu'ne Ti.ust aiid Paul Booth as Trustee Anvthint Ti ust Lawrence E. Skidmore, Esq. Aronowitz, Skidmore, Lyon 133 North Altadena Drive, Suite 403 200 Auburn Folsom Road, Suite 305 13 Pasadena, CA 91107 Auburn, CA 95603 mnanaanoPct Jacounscl.corn Iski dmore(chas ilaw.ora 14 patti(Rlacounsel.corn ImeltonSasilaw.oru 15 16 I declare under penalty of perjury under California. the laws of the State of California that the above is true and correct. 18 Executed on July 27, 2022, at Danville, 19 20 MARK CHUANG~ 21 22 23 24 25 26 27 28 4 PACIFIC UNION INTERNATIONAL. INC. S OPPOSITION TO ERIK LUDW]CK S EX PARTE APPLICATION FOR ORDER SHORTENING TIME FOR SERVICE OF MOTION TO SEVER STATUTE OF FRAUD'S DEFFNSE AT TRIAL