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DENNIS F. MORIARTY, ESQ. (BAR NO. 37612)
STEPHEN L. DAHM, ESQ. (BAR NO. 114745)
CESARI, WERNER AND MORIARTY
75 Southgate Avenue
Daly City, CA 94015
Telephone: (650) 991-5126
Facsimile: (650) 991-5134
dmoriarty@cwmlaw,corn
sdahm@cwmlaw. corn
6601-3-10-6
Attorneys for Defendant JASPREET SINGH SEKHON
10 IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF KERN
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13 MICHAEL DE CRESCENZO No. BCV-21-101923
14 EX PARTE APPLICATION TO
CONTINUE TRIAL AND RELATED
15 Plaintiff, DISCOVERY DEADLINES [Cal. Rule of
Court, Rules 3.1200 et seq. and 3.1332]
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vs. Date: Friday, October 27, 2023
17 Time: 8:30 A.M.
JASPREET SINGH SEKHON, LYFT, INC. Place: Division H
18 and DOES I to 55, Hon. Bernard C. Barmann, Jr.
19 Trial Date: December 11,2023
Defendants.
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21 Defendant Jaspreet Singh Sekhon hereby applies ex parte for an order continuing the
22 trial date to a date agreeable to the court and the parties, and to continue all related discovery
23 deadlines. This application is made on the grounds that counsel for moving defendant and
24 counsel for defendant Lyft, Inc. are both set for trial in another matter on December 11, 2023,
25 there have been recent settlement discussions in this case, the parties wish to participate in
26 mediation and scheduling the mediation prior to the current trial date is difficult or
27 impossible, and all counsel have agreed to continue the December 11, 2023 trial date.
This application is based on the accompanying memorandum of points and
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EX PARTE APPLICATION TO CONTINUE TRIAL AND RELATED DATES
1 authorities, stipulation of counsel in support of the application, Declaration of Stephen L.
2 Dahm with its attached exhibits, Declaration of Rod J. Cappy, attached proposed order, all of
3 the pleadings and other papers previously filed, and on any and all other documents,
4 testimony and argument received or permitted by the court in connection with this
5 application.
7 Dated: October 24, 2023 CESARI, WERNER and MORIARTY
MORIARTY
10 L. DAHM
Attorneys for Defendant REET SINGH SEKHON
12 ATTORNEYS OF RECORD
13 Plaintiff Michael DcCrescenzo is represented by Matthew J. Faulkner and James L.
Faulkner, Faulkner Law Offices, 1825 18'" Street, Bakersfield, CA 93301, (661) 327-0601.
15 Defendant Lyft, Inc. is represented by Rod J. Cappy and Maria T. Almazan, Lewis
Brisbois Bisgaard & Smith LLP, 633 West 5'" Street, Suite 4000, Los Angeles, CA 90071,
(213) 250-1800.
18 MEMORANDUM OF POINTS AND AUTHORITIES
19 Facts and Procedural Background
20 This action for personal injuries arises out of a two-car accident that happened on August
20, 2019. Plaintiff Michael DeCrescenzo was a rear-seat passenger in a rideshare vehicle driven
by defendant Jaspreet Sekhon. Mr. Sekhon's car collided with a car driven by Carlos Hernandez,
23 who is not a party. Mr. DeCresenzo claims injuries and damages as a result of the collision. The
24 rideshare was facilitated by defendant Lyft, Inc.
25 Both Jaspreet Sekhon and Lyft, Inc. have answered the complaint. The parties have
exchanged written discovery. Plaintiff has been deposed, and defendants obtained a physical
27 examination of plaintiff. There have been renewed settlement discussions in the last 30 days. The
28 parties are seeking to schedule mediation with retired Judge Alan Simpson.
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EX PARTE APPLICATION TO CONTINUE TRIAL AND RELATED DATES
Counsel for defendant Sekhon made an ex parte application to continue the trial on Friday,
October 20, 2023. The court denied that application without prejudice, in part because not all
counsel we in attendance at the hearing on the application,
Statutory Authority
California Rules of Court, Rule 3.1332 provides in part as follows:
(a) To ensure the prompt disposition of civil cases, the dates assigned for a trial are
firm. All parties and their counsel must regard the date set for trial as certain.
(b) A party seeking a continuance of the date set for trial, whether contested or
uncontested or stipulated to by the parties, must make the request for a continuance by a
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noticed motion or an ex parte application under the rules in chapter 4 of this division, with
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supporting declarations. The party must make the motion or application as soon as
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reasonably practical once the necessity for the continuance is discovered.
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(c) Although continuances of trials are disfavored, each request for a continuance
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must be considered on its own merits. The court may grant a continuance only on an
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affirmative showing of good cause requiring the continuance. Circumstances that may
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indicate good cause include:
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17 (3) The unavailability of trial counsel because of death, illness, or other
18 excusable circumstances;
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20 (7) A significant, unanticipated change in the status of the case as a result of
21 which the case is not ready for trial.
22 (d) In ruling on a motion or application for continuance, the court must consider all
23 the facts and circumstances that are relevant to the determination. These may include:
24 (1) The proximity of the trial date;
(2) Whether there was any previous continuance, extension of time, or delay
25
of trial duc to any party;
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(3) The length of the continuance requested;
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(4) The availability of alternative means to address the problem that gave rise
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to the motion or application for a continuance;
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EX PARTE APPLICATION TO CONTINUE TRIAL AND RELATED DATES
(5) The prejudice that parties or witnesses will suffer as a result of the
continuance;
(6) If the case is entitled to a preferential trial setting, the reasons for that
status and whether the need for a continuance outweigh the need to avoid delay;
(7) The court's calendar and the impact of granting a continuance on other
pending trials;
(8) Whether trial counsel is engaged in another trial;
(9) Whether all parties have stipulated to a continuance;
(10) Whether the interests of justice are best served by a continuance, by the
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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 of the
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motion or application.
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Judicial Authority and Argument
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Mai v. HKT Cal, Inc. (2021) 66 Cal.App.5 504 was a suit by plaintiff Mai against her
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real estate agent for recovery of attorneys'ees incurred by plaintiff defending a suit by a claimed
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purchaser of plaintiffs commercial building after the agent forged plaintiffs name on sale
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documents, The trial court refused to pause an ongoing trial to allow plaintiff to obtain and offer
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as evidence unredacted bills she received from her lawyer and to amend her witness list to include
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her lawyer in theunderlying case. Id. at 66 Cal.App.5'" 504,514-515. In reversing the court of
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appeal stated that:
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22 Courts possess the inherent power to continue matters before them. [Citations]
And while delaying litigation is generally disfavored in light of
23 efficiency concerns [citation], those concerns are
secondary to the primary function of the courts —to adjudicate
24 disputes on their merits. Decisions about whether to
25 grant a continuance or extend discovery must be made in
an atmosphere of substantial justice. When efficiency and
26 fairness concerns collide head-on, the strong public policy
favoring disposition on the merits outweighs the competing
27 policy favoring judicial efficiency."
28 1d. at 66 Cal.App.5'" 504, 525-526.
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EX PARTE APPLICATION TO CONTINUE TRIAL AND RELATED DATES
In the case at bar, counsel for all of the parties agree that a continuance will work
substantial justice, to give the parties additional time to continue with ongoing settlement
discussions, and if those discussions do not result in a settlement to allow defense counsel
who are most familiar with the case to participate in the trial.
CONCLUSION
On the basis of the facts and authorities cited herein, the accompanying stipulation
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of counsel, and the accompanying declarations defendant Jaspreet Singh Sekhon
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respectfully requests that the court grant this ex parte application and sign the
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accompanying order continuing the currently-scheduled trial date and all related discovery
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deadlines to a date mutually agreeable to the court and the parties.
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DATED: October 24, 2023 CESARI, WERNER AND MORIARTY
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17 STEPHEN L. DAHM
Attorneys for Defendant,
18 JASPREET SINGH SEKHON
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EX PARTE APPLICATION TO CONTINUE TRIAL AND RELATED DATES
PROOF OF SERVICE
I I am a resident of the State of California, over the age of 18 years, and not a party
to the within action. My business address is CESARI, WERNER AND MORIARTY, 75
2 Southgate Avenue, Daly City, California, 94015. On October 25, 2023, I served the within
document:
3 EX PARTE APPLICATION TO CONTINUE TRIAL AND RELATED DISCOVERY
DEADLINES [CaL Rule of Court, Rules 3.1200 et seq. and 3.1332j
by transmitting via facsimile the document(s) listed above to the fax number('s) set
forth below on this date before 5:00 p.m.
by transmitting via E-Mail the document(s) listed above to the E-Mail(s) set forth
below on this date before 5:00 p.m.
by placing the document(s) listed above in a sealed envelope with postage prepaid,
in the United States mail Daly City, California addressed as follows.
by causing personal delivery by of the document(s) listed above to
the person(s) at the address(es) set forth below.
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by personally delivering the document(s) listed above to the person(s) at the
address(es) set forth below.
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By sending electronically a true and conect copy thereof to File & ServeXpress
15 El (www.filcandservexnress.corn) or One Legal (www.oneleaai.corn) for service on
all counsel of record by electronic service if so listed.
16
Matthew J. Faulkner, Esq. Rod J. Cappy, Esq.
17 FAULKNER LAW OFFICES Maria T. Almazan, Esq.
1825 18th Street LEWIS BRISBOIS BISGAARD & SMITH
18 Bakersfield, California 93301 333 Bush Street, Suite 1100
Tel: (661) 327-0601 San Francisco, CA 94104-2872
19 Fax: (661) 327-1220 Tel: (415) 362-2580
matt faulknerlaw.corn Fax; (415) 434-0882
20 service@faulknerlaw.corn Rod. Cappy@lewisbrisbois.corn
Attorney for Plaintiff Maria.AImazan@lewisbrisbois.corn
21 MICHAEL DE CRESCENZO Attorneys for Defendant LYFT, INC.
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Sarah A. Ornelas, Esq.
23 BORTON PETRINI, LLP
201 Needham Street
24 Modesto, CA 95354
Tel: (209) 576-1701
25 Fax: (209) 527-9753
sornelas bortonpetrini.corn
26 Attorney for Defendants
DOLGKN CALIFORNIA, LLC, dba
27 DOLLAR GENERAL MARKET 013240
AND DG STRATEGIC H
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PROOF OF SERVICE
PROOF OF SERVICE
I I am familiar with the firm's practice of processing mail. Under that practice it would
2 be deposited with the U.S. Postal Service on that day with postage thereon prepaid in the
3 ordinary course ofbusiness. I am aware that on motion of the party served, service is presumed
4 invalid if postal cancellation date/postage meter date is more than one day after date of deposit
5 for mailing in affidavit.
I declare under penalty of perjury that the above is true and correct.
Executed on October 25, 2023, at Daly City, California.
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PROOF OF SERVICE
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DENNIS F. MORIARTY, ESQ. (BAR NO. 37612) STEPHEN L. DAHM, ESQ. (BAR NO. 114745) CESARI, WERNER AND MORIARTY 75 Southgate Avenue Daly City, CA 94015 Telephone: (650) 991-5126 Facsimile: (650) 991-5134 dmoriarty@cwmlaw,corn sdahm@cwmlaw. corn 6601-3-10-6 Attorneys for Defendant JASPREET SINGH SEKHON 10 IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF KERN 12 13 MICHAEL DE CRESCENZO No. BCV-21-101923 14 EX PARTE APPLICATION TO CONTINUE TRIAL AND RELATED 15 Plaintiff, DISCOVERY DEADLINES [Cal. Rule of Court, Rules 3.1200 et seq. and 3.1332] 16 vs. Date: Friday, October 27, 2023 17 Time: 8:30 A.M. JASPREET SINGH SEKHON, LYFT, INC. Place: Division H 18 and DOES I to 55, Hon. Bernard C. Barmann, Jr. 19 Trial Date: December 11,2023 Defendants. 20 21 Defendant Jaspreet Singh Sekhon hereby applies ex parte for an order continuing the 22 trial date to a date agreeable to the court and the parties, and to continue all related discovery 23 deadlines. This application is made on the grounds that counsel for moving defendant and 24 counsel for defendant Lyft, Inc. are both set for trial in another matter on December 11, 2023, 25 there have been recent settlement discussions in this case, the parties wish to participate in 26 mediation and scheduling the mediation prior to the current trial date is difficult or 27 impossible, and all counsel have agreed to continue the December 11, 2023 trial date. This application is based on the accompanying memorandum of points and -1- EX PARTE APPLICATION TO CONTINUE TRIAL AND RELATED DATES 1 authorities, stipulation of counsel in support of the application, Declaration of Stephen L. 2 Dahm with its attached exhibits, Declaration of Rod J. Cappy, attached proposed order, all of 3 the pleadings and other papers previously filed, and on any and all other documents, 4 testimony and argument received or permitted by the court in connection with this 5 application. 7 Dated: October 24, 2023 CESARI, WERNER and MORIARTY MORIARTY 10 L. DAHM Attorneys for Defendant REET SINGH SEKHON 12 ATTORNEYS OF RECORD 13 Plaintiff Michael DcCrescenzo is represented by Matthew J. Faulkner and James L. Faulkner, Faulkner Law Offices, 1825 18'" Street, Bakersfield, CA 93301, (661) 327-0601. 15 Defendant Lyft, Inc. is represented by Rod J. Cappy and Maria T. Almazan, Lewis Brisbois Bisgaard & Smith LLP, 633 West 5'" Street, Suite 4000, Los Angeles, CA 90071, (213) 250-1800. 18 MEMORANDUM OF POINTS AND AUTHORITIES 19 Facts and Procedural Background 20 This action for personal injuries arises out of a two-car accident that happened on August 20, 2019. Plaintiff Michael DeCrescenzo was a rear-seat passenger in a rideshare vehicle driven by defendant Jaspreet Sekhon. Mr. Sekhon's car collided with a car driven by Carlos Hernandez, 23 who is not a party. Mr. DeCresenzo claims injuries and damages as a result of the collision. The 24 rideshare was facilitated by defendant Lyft, Inc. 25 Both Jaspreet Sekhon and Lyft, Inc. have answered the complaint. The parties have exchanged written discovery. Plaintiff has been deposed, and defendants obtained a physical 27 examination of plaintiff. There have been renewed settlement discussions in the last 30 days. The 28 parties are seeking to schedule mediation with retired Judge Alan Simpson. -2- EX PARTE APPLICATION TO CONTINUE TRIAL AND RELATED DATES Counsel for defendant Sekhon made an ex parte application to continue the trial on Friday, October 20, 2023. The court denied that application without prejudice, in part because not all counsel we in attendance at the hearing on the application, Statutory Authority California Rules of Court, Rule 3.1332 provides in part as follows: (a) To ensure the prompt disposition of civil cases, the dates assigned for a trial are firm. All parties and their counsel must regard the date set for trial as certain. (b) A party seeking a continuance of the date set for trial, whether contested or uncontested or stipulated to by the parties, must make the request for a continuance by a 9 noticed motion or an ex parte application under the rules in chapter 4 of this division, with 10 supporting declarations. The party must make the motion or application as soon as 11 reasonably practical once the necessity for the continuance is discovered. 12 (c) Although continuances of trials are disfavored, each request for a continuance 13 must be considered on its own merits. The court may grant a continuance only on an 14 affirmative showing of good cause requiring the continuance. Circumstances that may 15 indicate good cause include: 16 17 (3) The unavailability of trial counsel because of death, illness, or other 18 excusable circumstances; 19 20 (7) A significant, unanticipated change in the status of the case as a result of 21 which the case is not ready for trial. 22 (d) In ruling on a motion or application for continuance, the court must consider all 23 the facts and circumstances that are relevant to the determination. These may include: 24 (1) The proximity of the trial date; (2) Whether there was any previous continuance, extension of time, or delay 25 of trial duc to any party; 26 (3) The length of the continuance requested; 27 (4) The availability of alternative means to address the problem that gave rise 28 to the motion or application for a continuance; -3- EX PARTE APPLICATION TO CONTINUE TRIAL AND RELATED DATES (5) The prejudice that parties or witnesses will suffer as a result of the continuance; (6) If the case is entitled to a preferential trial setting, the reasons for that status and whether the need for a continuance outweigh the need to avoid delay; (7) The court's calendar and the impact of granting a continuance on other pending trials; (8) Whether trial counsel is engaged in another trial; (9) Whether all parties have stipulated to a continuance; (10) Whether the interests of justice are best served by a continuance, by the 10 trial of the matter, or by imposing conditions on the continuance; and ll (11) Any other fact or circumstance relevant to the fair determination of the 12 motion or application. 13 Judicial Authority and Argument 14 Mai v. HKT Cal, Inc. (2021) 66 Cal.App.5 504 was a suit by plaintiff Mai against her 15 real estate agent for recovery of attorneys'ees incurred by plaintiff defending a suit by a claimed 16 purchaser of plaintiffs commercial building after the agent forged plaintiffs name on sale 17 documents, The trial court refused to pause an ongoing trial to allow plaintiff to obtain and offer 18 as evidence unredacted bills she received from her lawyer and to amend her witness list to include 19 her lawyer in theunderlying case. Id. at 66 Cal.App.5'" 504,514-515. In reversing the court of 20 appeal stated that: 21 22 Courts possess the inherent power to continue matters before them. [Citations] And while delaying litigation is generally disfavored in light of 23 efficiency concerns [citation], those concerns are secondary to the primary function of the courts —to adjudicate 24 disputes on their merits. Decisions about whether to 25 grant a continuance or extend discovery must be made in an atmosphere of substantial justice. When efficiency and 26 fairness concerns collide head-on, the strong public policy favoring disposition on the merits outweighs the competing 27 policy favoring judicial efficiency." 28 1d. at 66 Cal.App.5'" 504, 525-526. -4- EX PARTE APPLICATION TO CONTINUE TRIAL AND RELATED DATES In the case at bar, counsel for all of the parties agree that a continuance will work substantial justice, to give the parties additional time to continue with ongoing settlement discussions, and if those discussions do not result in a settlement to allow defense counsel who are most familiar with the case to participate in the trial. CONCLUSION On the basis of the facts and authorities cited herein, the accompanying stipulation 7 of counsel, and the accompanying declarations defendant Jaspreet Singh Sekhon 8 respectfully requests that the court grant this ex parte application and sign the 9 accompanying order continuing the currently-scheduled trial date and all related discovery 10 deadlines to a date mutually agreeable to the court and the parties. 11 12 13 14 DATED: October 24, 2023 CESARI, WERNER AND MORIARTY 15 16 17 STEPHEN L. DAHM Attorneys for Defendant, 18 JASPREET SINGH SEKHON 19 20 21 22 23 24 25 26 27 28 -5- EX PARTE APPLICATION TO CONTINUE TRIAL AND RELATED DATES PROOF OF SERVICE I I am a resident of the State of California, over the age of 18 years, and not a party to the within action. My business address is CESARI, WERNER AND MORIARTY, 75 2 Southgate Avenue, Daly City, California, 94015. On October 25, 2023, I served the within document: 3 EX PARTE APPLICATION TO CONTINUE TRIAL AND RELATED DISCOVERY DEADLINES [CaL Rule of Court, Rules 3.1200 et seq. and 3.1332j by transmitting via facsimile the document(s) listed above to the fax number('s) set forth below on this date before 5:00 p.m. by transmitting via E-Mail the document(s) listed above to the E-Mail(s) set forth below on this date before 5:00 p.m. by placing the document(s) listed above in a sealed envelope with postage prepaid, in the United States mail Daly City, California addressed as follows. by causing personal delivery by of the document(s) listed above to the person(s) at the address(es) set forth below. 12 by personally delivering the document(s) listed above to the person(s) at the address(es) set forth below. 14 By sending electronically a true and conect copy thereof to File & ServeXpress 15 El (www.filcandservexnress.corn) or One Legal (www.oneleaai.corn) for service on all counsel of record by electronic service if so listed. 16 Matthew J. Faulkner, Esq. Rod J. Cappy, Esq. 17 FAULKNER LAW OFFICES Maria T. Almazan, Esq. 1825 18th Street LEWIS BRISBOIS BISGAARD & SMITH 18 Bakersfield, California 93301 333 Bush Street, Suite 1100 Tel: (661) 327-0601 San Francisco, CA 94104-2872 19 Fax: (661) 327-1220 Tel: (415) 362-2580 matt faulknerlaw.corn Fax; (415) 434-0882 20 service@faulknerlaw.corn Rod. Cappy@lewisbrisbois.corn Attorney for Plaintiff Maria.AImazan@lewisbrisbois.corn 21 MICHAEL DE CRESCENZO Attorneys for Defendant LYFT, INC. 22 Sarah A. Ornelas, Esq. 23 BORTON PETRINI, LLP 201 Needham Street 24 Modesto, CA 95354 Tel: (209) 576-1701 25 Fax: (209) 527-9753 sornelas bortonpetrini.corn 26 Attorney for Defendants DOLGKN CALIFORNIA, LLC, dba 27 DOLLAR GENERAL MARKET 013240 AND DG STRATEGIC H 28 PROOF OF SERVICE PROOF OF SERVICE I I am familiar with the firm's practice of processing mail. Under that practice it would 2 be deposited with the U.S. Postal Service on that day with postage thereon prepaid in the 3 ordinary course ofbusiness. I am aware that on motion of the party served, service is presumed 4 invalid if postal cancellation date/postage meter date is more than one day after date of deposit 5 for mailing in affidavit. I declare under penalty of perjury that the above is true and correct. Executed on October 25, 2023, at Daly City, California. ~ZrX &+a.~Z~~r~ 10 12 13 14 15 16 17 18 19 20 21 22 23 25 26 27 PROOF OF SERVICE