Preview
1 Lisa C. McCurdy (SBN 228755)
Layal L. Bishara (SBN 329154)
2 GREENBERG TRAURIG, LLP
1840 Century Park East, Suite 1900
3 Los Angeles, California 90067-2121
Telephone: (310) 586-7700
4 Facsimile: (310) 586-7800
mccurdyl@gtlaw.com
5 bisharal@gtlaw.com
6 Mitchell B. Greenberg (SBN 114878)
ABBEY, WEITZENBERG, WARREN & EMERY, PC
7 100 Stony Point Road, Suite 200
Santa Rosa, CA 95401
8 Telephone: (707) 542-5050
MGreenberg@abbeylaw.com
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10 Attorneys for Plaintiff SEAN DUGGAN,
individually and derivatively on behalf of
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the Duggan Family Limited Partnership
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13 SUPERIOR COURT OF THE STATE OF CALIFORNIA
14 FOR THE COUNTY OF SONOMA
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16 SEAN DUGGAN, an individual, on his CASE NO. SCV-268905
own behalf and derivatively on behalf of
17 the Duggan Family Limited Partnership; NOTICE OF MOTION AND MOTION
TO CONTINUE TRIAL DATE AND
18 Plaintiff, REQUEST FOR CASE TO BE
PLACED ON CASE MANAGEMENT
19 v. CONFERENCE CALENDAR;
MEMORANDUM OF POINTS AND
20 LYNN DUGGAN, an individual; KELLY AUTHORITIES
MOFFAT, an individual, and DOES 1 through
21 25, inclusive, [Declarations of Lisa C. McCurdy and John
A. Taylor, [Proposed] Order filed
22 Defendants, concurrently]
23 -and- DATE:
TIME:
24 THE DUGGAN FAMILY LIMITED CTRM: 17
PARTNERSHIP, a California Limited
25 Partnership,
26 Nominal Defendant.
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1 TO THE COURT, ALL PARTIES AND TO THEIR ATTORNEYS OF RECORD:
2 PLEASE TAKE NOTICE that, on ____, 2024 at ______, or as soon thereafter as may be heard in
3 front of the Honorable Bradford DeMeo, in Courtroom 17 of the Sonoma County Superior Court, located at
4 Empire College Annex, 3035 Cleveland Avenue, Suite 200, Santa Rosa, CA 95403, Plaintiff Sean Duggan
5 (“Plaintiff” or “Sean”) will, and hereby does, move the Court for an order continuing trial on this action for
6 a period of at least four months, which is presently set for February 2, 2024, extending the discovery
7 cutoff dates and motion dates according to the new trial date, and place the case on the Court’s case
8 management conference calendar regarding trial and necessary discovery motions.
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DATED: December 19, 2023 GREENBERG TRAURIG, LLP
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By: /s/ Lisa C. McCurdy
12 Lisa C. McCurdy
Attorneys for Plaintiff
13 SEAN DUGGAN
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TABLE OF CONTENTS
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I. INTRODUCTION ............................................................................................................................... 5
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II. BACKGROUND ................................................................................................................................. 8
3 A. Procedural Background ............................................................................................................ 8
4 B. Plaintiff’s Diligence ................................................................................................................. 9
III. LEGAL DISCUSSION ...................................................................................................................... 10
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A. Legal Standard ....................................................................................................................... 10
6 C. The Court Should Grant This Motion .................................................................................... 11
7 1. Good Cause for a Continuance Exists Per California Rule of Court 3.1332(c) and
Sonoma County Local Rules, Rule 4.9(B)................................................................. 11
8 2. Other Considerations Also Favor Granting the Motion to Continue. ........................ 12
9 IV. CONCLUSION .................................................................................................................................. 13
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TABLE OF AUTHORITIES
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2 Page(s)
3 Cases
4 Freeman v. Sullivant,
192 Cal. App. 4th 523 (2011) .................................................................................................................. 11
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Lerma v. Cty. of Orange,
6 120 Cal. App. 4th 709 (2004) .................................................................................................................. 11
7 In re Marriage of Hoffmeister,
8 161 Cal. App. 3d 1163 (1984) ................................................................................................................. 11
9 Oliveros v. Cty. of L.A.,
120 Cal. App. 4th 1389 (2004) .......................................................................................................... 10, 11
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Statutes
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Cal. Code of Civil Procedure § 583.130 .......................................................................................................... 7
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Cal. Code of Civil Procedure § 583.310 .......................................................................................................... 7
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14 Cal. Corp. Code § 15903.05....................................................................................................................... 5, 11
15 Cal. Corp. Code § 15904.08....................................................................................................................... 5, 11
16 Other Authorities
17 Cal. R. Ct. 3.1332(b) ...................................................................................................................................... 12
18 Cal. R. Ct. 3.1332(c) ...................................................................................................................... 7, 10, 11, 12
19 Cal. R. Ct. 3.1332(c)(7) ................................................................................................................................. 12
20 Cal. R. Ct. 3.1332(d) .................................................................................................................................. 7, 12
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Cal. R. Ct. 3.1332(d)(5) ................................................................................................................................. 13
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Cal. R. Ct. 3.1332(d)(10) ............................................................................................................................... 13
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Sonoma County Superior Court Local Rule 4.9(B) ................................................................................. 10, 11
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1 MEMORANDUM OF POINTS AND AUTHORITIES
2 I. INTRODUCTION
3 Good cause exists for a continuance of the trial because, through no fault of Plaintiff, (1) the
4 Partnership Property may (or may not) be sold near the end of January, which would alter the course of
5 trial and, specifically, liability and damages issues; (2) third party document subpoenas have been ignored;
6 (3) Defendants have inexplicably been unable (or unwilling) to assist with the facilitating responses to
7 those subpoenas; (4) the deposition of Plaintiff will not be completed until January 18, 2024; (5)
8 depositions of Defendants and third parties cannot be taken without a complete documentary record
9 (namely, the documents sought by the aforementioned subpoenas); and (6) as Plaintiff’s retained expert
10 confirms in his declaration, he cannot prepare his opinions on standard of care and damages while the
11 Property sale transaction is pending and without a complete documentary record (namely, the documents
12 sought by the aforementioned subpoenas). Therefore, this continuance is requested to ensure the trial of
13 this case is a full and fair one on its merits and to ensure that any relief awarded is complete and not
14 premature. More specifically:
15 First, as the Court is aware, the primary asset of the Partnership is commercial real property located
16 in Santa Rosa, California. It has been placed on the market by Defendants, and a sale still is pending. The
17 closing date has been continually extended, most recently until late January 17, 2021 (and may possibly be
18 extended further). (Declaration of Lisa C. McCurdy (“McCurdy Dec.”), Ex. 7.) As the Court also is aware,
19 two of the main issues in the litigation are (1) whether Defendants have authority to list the Property for
20 sale (and to consummate a sale) without Plaintiff’s agreement; and (2) leaving aside the question of
21 authority, whether the sale and its terms violate the duties owed to the Partnership by its purported general
22 partners.1 If trial were to move forward before the sale transaction is closed (or officially terminated),
23 Plaintiff will not be afforded complete relief. Even if the Court were to rule against Plaintiff on the issue of
24 authority to sell, it will not be possible to determine liability and damages issues flowing from the sale
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As alleged in the Second Amended Complaint, the Corporations Code §§ 15903.05 and 15904.08 provide
that limited partners owe duties of good faith and fair dealing, while general partners also owe duties of
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1 while it is pending and terms are subject to change. (See Declaration of John A. Taylor, submitted
2 concurrently).
3 Second, and relatedly, Plaintiff served (and/or, in the case of third-party George Arce, has
4 attempted to serve) subpoenas to the buyer and various buyer entities, which have evolved over time,
5 identified in the various purchase and sale documents for the property. Plaintiff has been unable to locate
6 and serve the principal for the buyer entities, and the buyer entities have entirely ignored the subpoenas
7 (aside from an email response on November 21, 2023, stating that at least one buyer entity intends to retain
8 counsel). (McCurdy Dec., Ex. 4.) Plaintiff requested the assistance of Defendants in this regard, as
9 Defendants are unquestionably in contact with the buyer/buyer entities, but those requests have been
10 disregarded. The subpoenaed records are critical to understanding what the final terms are and why they
11 were agreed to, including: deflated price, the seller-financing being extended, the warranties being given,
12 and the prejudicial indemnification terms that survive any closing. There were no objections to these
13 subpoenas. Instead, they were just disregarded. Plaintiff is entitled to the documents sought and to
14 thereafter depose (at a minimum) Defendants about what they reveal.
15 Third, and relatedly, depositions of fact witnesses have not been completed, as Plaintiff cannot
16 conduct comprehensive depositions without the subpoenaed records. To comply with currently-set dates,
17 Plaintiff has served deposition notices for Lynn Duggan and Kelly Moffat, and is attempting to serve a
18 deposition subpoena on Abraham Moffat. But those depositions cannot go forward without the records
19 subpoenaed from the proposed buyer/buyer entities of the Partnership property, as discussed above.
20 Plaintiff is entitled to depose Defendants about the purchase and sale, financing, indemnification, and other
21 terms negotiated, with the benefit of complete records and final terms.
22 Fourth, and likewise, Defendants have taken no depositions. Defendants made no effort to
23 schedule a deposition of Plaintiff until this month (December). Defendants then initially insisted that
24 depositions be completed in December, despite counsel and Plaintiff’s stated unavailability for the
25 remainder of December, and defense counsel has been unavailable to discuss scheduling. Because of
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1 Plaintiff’s and Plaintiff’s counsel’s travel and other case commitments, Plaintiff’s deposition will take
2 place on January 18, 2024.2
3 Fifth, there is no prejudice from the requested continuance. The case has been at issue for just over
4 three months, as Defendants filed verified answers to the second amended complaint in September 2023,
5 and is well within the time frame for bringing the case to trial set by Cal. Code of Civil Procedure §
6 583.310.3 While Defendants have said they will oppose this Motion, they have not identified any legally-
7 cognizable grounds for doing so. Instead, it is apparent that Defendants strategically want to force Plaintiff
8 into trial while the Property is in limbo and third parties are avoiding subpoenas so that Plaintiff will be
9 unfairly prejudiced in his ability to demonstrate liability and damages.
10 In sum, due to changed circumstances since the case was filed—the still pending sale of the
11 Property—the case is not ready for a full and fair trial on the merits. Second, despite Plaintiff’s efforts to
12 complete discovery, the current trial schedule leaves insufficient time for the parties to complete discovery,
13 including fact and expert depositions, and to seek court assistance on any unresolved issues.4
14 Accordingly, under California Rule of Court 3.1332(c) and (d), and as detailed further below, there
15 is good cause for a continuance of the trial, and Plaintiff therefore respectfully requests that the Court
16 continue the current trial date to a later date that is convenient to the Court and counsel approximately six
17 months from the current trial date, and that all related deadlines (e.g., MSC, TRC, and fact, expert, and
18 motion discovery cut-offs) are continued in accordance with the new trial date. Plaintiff also suggests, and
19 requests, that the Court place the case on its case management conference calendar to discuss trial setting
20 and related matters with the Parties.
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Counsel for Plaintiff are traveling on business and holiday travel out of town from December 18, through
25 and including January 2, 2024. Counsel is thereafter preparing for and in evidentiary hearings, mediations,
and depositions anticipated to be completed on January 16, 2024.
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Section 583.130 specifies that it is the policy of the State to prioritize trial on the merits.
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Although Plaintiff will continue efforts to resolve subpoena compliance with Defendants’ assistance, it
appears that motion practice and the Court’s assistance may be required. In addition, on December 18,
28 2023, Plaintiff disclosed one testifying expert; Defendants disclosed four.
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1 II. BACKGROUND
2 A. Procedural Background
3 This case initially was filed (and a first amended complaint filed) in July 2021. Documents
4 produced by Defendant Lynn Duggan in September 2022 revealed additional facts and claims that
5 necessitated the filing of Plaintiff’s motion for leave to file a second amended complaint. Plaintiff’s motion
6 for leave was filed in May 2023. The motion was necessary because Defendants refused to stipulate to
7 Plaintiff’s filing of the second amended complaint. However, all Defendants ultimately filed notices of
8 non-opposition to the motion for leave. The operative Verified Second Amended Complaint was filed in
9 August 2023, and Defendants answers were filed on September 7, 2023, just over three months ago.
10 Since then, Plaintiff has diligently attempted to obtain the information needed regarding a proposed
11 sale of the Partnership’s real property asset, both informally and through deposition subpoenas issued in
12 October 2023. Plaintiff has obtained only partial information from Defendants informally regarding the
13 proposed sale, and the subpoenas issued to the various purchasing entities have been ignored; Plaintiff has
14 been unable to locate and serve the principal of the purchasing entities despite multiple attempts and
15 despite Plaintiff’s request for assistance in that regard from Defendants. (McCurdy Dec., ¶¶ 7-11, Exs. 3-
16 6.)
17 Most recently, on November 20, 2023, counsel for Plaintiff contacted counsel for Defendants to
18 assist with facilitating service and responses to the subpoenas, as Defendants are in contact with the
19 proposed buyer/buyer entities to whom the subpoenas were directed. Plaintiff also requested an update on
20 the status of the sale transaction, which at that time was set to close on November 29, 2023, per an 8th
21 amendment to the purchase and sale agreement. Receiving no response, Plaintiff inquired again on
22 November 28, 2023. (McCurdy Dec., ¶¶ 11-13, Exs. 5-8.)
23 In response, defense counsel provided a 9th extension to the purchase and sale agreement on
24 November 29, 2023, which extends the closing date for the sale transaction to January 17, 2024, but did not
25 address the subpoenas. (McCurdy Dec., ¶¶ 12-15, Exs. 7-10.) Instead, on November 30, 2023, counsel for
26 Defendant Moffat requested dates for Sean Duggan’s deposition in December or early January. Plaintiff’s
27 counsel specified that a deposition of Plaintiff would need to take place in January. Plaintiff’s counsel also
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1 noted that, given the need to complete discovery, address subpoenas, and allow expert witness to prepare, a
2 trial continuance may be required. Counsel for Defendant Moffat did not respond. However, on December
3 6, 2023, counsel for Lynn Duggan stated that her client would “oppose any motion to continue,” and asked
4 to set depositions in December. Counsel for Plaintiff suggested a call on the afternoon of December 8—a
5 window of time when Lynn Duggan’s counsel indicated availability—but never heard back. (McCurdy
6 Dec., Exs. 8 & 9.)
7 Since then, counsel for Defendant Moffat noticed Sean Duggan’s deposition for January 2, 2023,
8 undoubtedly due to the current discovery cut-off, even though they knew by that time that neither Sean
9 Duggan nor his counsel are available on January 2.5 (McCurdy Dec., ¶¶ 14-15.) Again on December 13,
10 2023, counsel for Sean Duggan emailed regarding scheduling and the need for a trial continuance. That
11 email was, yet again, ignored until repeated further requests for a response, to which defense counsel then
12 abruptly responded that they “want their day in court.” (McCurdy Dec., ¶ 16, Ex. 11.)
13 It is clear to Plaintiff that Defendants are attempting to take advantage of a situation that they have
14 helped create, forcing Plaintiff into a trial at great prejudice. Under the current circumstances, the only
15 resulting prejudice would be to Plaintiff if a continuance is denied.
16 B. Plaintiff’s Diligence
17 Plaintiff has diligently endeavored to obtain key information and documents needed for trial
18 preparation and his damages expert. He has served multiple sets of written discovery on Lynn Duggan, to
19 which he has responded. Based on the information and documents provided by Lynn Duggan, and
20 information discovered independently by Plaintiff, Plaintiff filed a motion for leave to file an amended
21 complaint. As described above, Plaintiff served third party document subpoenas to obtain records that are
22 key to issues of liability and damages in this case. Those subpoenas have been ignored. Plaintiff requested
23 that Defendants confirm contact information for the subpoenaed persons and entities and help facilitate
24 compliance, but those efforts have been fruitless.
25 Plaintiff also has repeatedly requested updates from Defendants regarding the status of the pending
26 Property sale in an effort to keep himself apprised of a critical issue in this case. However, the transaction
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Kelly Moffat’s counsel thereafter served a notice of unavailability anyway, from December 22, 2023,
28 through January 5, 2024. (McCurdy Dec., Ex. 13.)
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1 remains pending with a current closing date of late February 2024. Updates on the transaction status have
2 not been provided to Plaintiff without prompting and, even then, no information is provided beyond the
3 executed extensions of the purchase and sale agreement.
4 III. LEGAL DISCUSSION
5 A. Legal Standard
6 A trial may be continued for “good cause.” Cal. R. Ct. 3.1332(c). The California Rules of Court
7 provide several circumstances that may constitute “good cause,” including “[t]he unavailability of trial
8 counsel because of … excusable circumstances,” “[a] party’s excused inability to obtain essential
9 testimony, documents, or other material evidence despite diligent efforts,” and “[a] significant,
10 unanticipated change in the status of the case as a result of which the case is not ready for trial.” Id.,
11 3.1332(c)(3), (6), (7). The Rules of Court also identify other factors to consider, including: (1) proximity to
12 the trial date; (2) whether there was any previous continuance, extension of time, or delay of trial due to
13 any party; (3) the length of the continuance requested; (4) the availability of alternative means to address
14 the problem that gave rise to the motion for continuance; (5) the prejudice that parties or witnesses will
15 suffer as a result of the continuance; (6) whether the case is entitled to preferential trial setting; (7) the trial
16 court’s calendar; (8) whether trial counsel is engaged in another trial; (9) whether all parties have stipulated
17 to a continuance; (10) whether the interests of justice are best served by a continuance, by the trial of the
18 matter, or by imposing conditions on the continuance; and (11) any other fact or circumstance relevant to
19 the fair determination of the motion. Id., 3.1332(d). No one factor is dispositive, and all relevant facts and
20 circumstances are to be considered. See Oliveros v. Cty. of L.A., 120 Cal. App. 4th 1389, 1399 (2004)
21 (requiring courts to consider “all of the facts and circumstances relevant to a ruling”).
22 The Sonoma County Superior Court’s Local Rules, Rule 4.9(B) also discuss the standard applied in
23 this Court: “Continuances of trials may be granted, upon good cause show, by stipulation of the parties or
24 upon written notice of motion. Absent extraordinary circumstances failure to complete discovery would
25 generally not be considered good cause. Any motion for continuance must be calendared for hearing before
26 the Assigned Judge on the Trial calendar at least seven (7) calendar days in advance of the trial date, unless
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1 good cause is shown for a shortening of such time. Stipulation of trial counsel by itself does not constitute
2 good cause for granting a continuance.”
3 Additionally, while ruling on a motion to continue trial is within a court’s discretion, “[t]he trial
4 judge must exercise [its] discretion with due regard to all interests involved, and the refusal of a
5 continuance which has the practical effect of denying the applicant a fair hearing is reversible error.” In re
6 Marriage of Hoffmeister, 161 Cal. App. 3d 1163, 1169 (1984). A court is considered to have the authority
7 to “maintain control over the pace of litigation” on the one hand, but “[o]n the other hand, [it] must abide
8 by the guiding principle of deciding cases on their merits rather than on procedural deficiencies.” Lerma v.
9 Cty. of Orange, 120 Cal. App. 4th 709, 718 (2004). “Such decisions must be made in an atmosphere of
10 substantial justice. When the two policies collide head-on, the strong public policy favoring disposition on
11 the merits outweighs the competing policy favoring judicial efficiency.” Oliveros, 120 Cal. App. 4th at
12 1395. Thus, the denial of a continuance is an abuse of discretion where it “results in the denial of a fair
13 hearing, or otherwise prejudices a party.” Freeman v. Sullivant, 192 Cal. App. 4th 523, 527 (2011).
14 C. The Court Should Grant This Motion
15 1. Good Cause for a Continuance Exists Per California Rule of Court 3.1332(c) and
16 Sonoma County Local Rules, Rule 4.9(B).
17 There is good cause under California Rule of Court 3.1332(c) and Local Rule 4.9(B) to continue the
18 trial for multiple reasons:
19 First, as discussed, this case cannot be fully resolved while a sale of the Partnership property is
20 pending. Until the transaction is closed, Plaintiff and his expert cannot fully evaluation Plaintiff’s breach of
21 fiduciary duty claims and Plaintiff’s expert cannot prepare his damages opinion. (See Declaration of John
22 A. Taylor (“Taylor Decl.”), filed concurrently.) The closing date has been continually extended, most
23 recently until late January 17, 2021 (and may possibly be extended further). As the Court also is aware, two
24 of the main issues in the litigation are (1) whether Defendants have authority to list the Property for sell
25 (and to consummate a sale) without Plaintiff’s agreement; and (2) leaving aside the question of authority,
26 whether the sale and its terms violate the duties owed to the Partnership by its purported general partners.
27 As alleged in the Second Amended Complaint, Corporations Code §§ 15903.05 and 15904.08 provide that
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1 limited partners owe duties of good faith and fair dealing, while general partners also owe duties of care
2 and loyalty, including avoiding adverse interests, acts of gross negligence, intentional misconduct.
3 Second, for the same reasons, Plaintiff would be severely prejudiced if the continuance is not
4 granted because if trial were to move forward before the sale transaction is closed (or officially terminated),
5 Plaintiff will not be afforded complete relief. When this litigation was filed, the Property was not under
6 contract for sale and, thus, the issues of authority, duty, and damages were ripe for consideration. Now, due
7 to a significant change in the circumstances of the case, even if the Court were to rule against Plaintiff on
8 the issue of authority to sell, it will not be possible to determine liability and damages issues flowing from
9 the sale while it is pending and terms are subject to change. Thus, the case is not ready for trial. See Cal. R.
10 Ct. 3.1332(c)(7). If trial were to move forward before the sale transaction is closed (or officially
11 terminated), Plaintiff will not be afforded complete relief. (See Taylor Decl.) Thus, maintaining the current
12 trial date would unfairly prejudice Plaintiff and Plaintiff therefore respectfully submits that the requested
13 continuance should be granted. See Cal. R. Ct. 3.1332(c).
14 Third, Plaintiff has repeatedly attempted to move this case forward, even enlisting Defendants’
15 assistance in facilitating compliance with records subpoenas to the third parties that Defendants have
16 contact with. Plaintiff promptly raised both the issue of the records subpoenas, and the need to continue the
17 trial date once the ninth extension of the Property purchase and sale agreement was received on November
18 29, 2023, less than three weeks ago. Ultimately, when it became clear that Defendants intend to attempt to
19 push the trial forward despite the issues identified herein (which would certainly prejudice Plaintiff),
20 Plaintiff prepared this Motion and notified Defendants that it would be filed. See Cal. R. Ct. 3.1332(b) (“[a]
21 party seeking a continuance of the date set for trial … must make [its] motion … as soon as reasonably
22 practical once the necessity for the continuance is discovered”).
23 2. Other Considerations Also Favor Granting the Motion to Continue.
24 California Rule of Court 3.1332(d) enumerates additional factors to be considered, which also favor
25 granting Plaintiff’s Motion. Specifically, despite what Defendants will claim, no party will suffer any
26 prejudice from the continuance. Conversely, Plaintiff would be unfairly prejudiced if the Court does not
27 continue the trial date, because Plaintiff will be deprived of the ability to obtain key documents,
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1 information, and testimony in time for trial, and in time for his expert to prepare his opinions. See Cal. R.
2 Ct. 3.1332(d)(5) & (10).
3 IV. CONCLUSION
4 For the foregoing reasons, there is good cause to grant this Motion, continue the trial date to a date
5 no sooner than late May 2024, and place the case on the Court’s case management conference calendar so
6 that the parties and the Court can discuss the issues set forth herein.
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DATED: December 19, 2023 GREENBERG TRAURIG, LLP
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By: /s/ Lisa C. McCurdy
10 Lisa C. McCurdy
Attorneys for Plaintiff
11 SEAN DUGGAN
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1 PROOF OF SERVICE
2 STATE OF CALIFORNIA, COUNTY OF LOS ANGELES
3 I am employed in the aforesaid county, State of California; I am over the age of 18 years and not
a party to the within action; my business address is 1840 Century Park East, Suite 1900, Los Angeles,
4 CA 90067-2121; my email address is sharifih@gtlaw.com.
5 On December 20, 2023, I served NOTICE OF MOTION AND MOTION TO CONTINUE TRIAL
DATE AND REQUEST FOR CASE TO BE PLACED ON CASE MANAGEMENT
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CONFERENCE CALENDAR; MEMORANDUM OF POINTS AND AUTHORITIES on the
7 interested parties in this action as follows:
8 Anne Olsen
Noland, Hamerly, Etienne & Hoss, APC
9 333 Salinas Street, P.O. Box 2510
Salinas, CA 93902
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Email: aolsen@nheh.com
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Attorneys for Defendant Lynn Duggan
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Marshall E. Bluestone
13 Bluestone Faircloth & Olson, LLP
14 1825 4th Street
Santa Rosa, CA 95404
15 Email: marshall@bfolegal.com
Email: emilee@bfolegal.com
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Attorneys for Defendant Duggan Family Limited Partnership
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18 Michael Schklovsky
Anderson Zeigler, APC
19 50 Old Courthouse Square, 5th Fl.
Santa Rosa, CA 95404
20 Email: mshklovsky@andersonzeigler.com
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Attorneys for Defendant Kelly Moffat
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(BY E-MAIL) I caused the above document(s) to be transmitted to the office(s) of the
23 addressee(s) listed above by electronic mail at the e-mail address(es) set forth above per
agreement and consent of the addressee(s). The document was served electronically and the
24 transmission was reported complete and without error.
25 (STATE) I declare under penalty of perjury under the laws of the State of California
that the foregoing is true and correct.
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Executed on December 20, 2023 at Los Angeles, California.
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/s/ Haleh Sharifi
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Haleh Sharifi
PROOF OF SERVICE
Preview
1 Lisa C. McCurdy (SBN 228755) Layal L. Bishara (SBN 329154) 2 GREENBERG TRAURIG, LLP 1840 Century Park East, Suite 1900 3 Los Angeles, California 90067-2121 Telephone: (310) 586-7700 4 Facsimile: (310) 586-7800 mccurdyl@gtlaw.com 5 bisharal@gtlaw.com 6 Mitchell B. Greenberg (SBN 114878) ABBEY, WEITZENBERG, WARREN & EMERY, PC 7 100 Stony Point Road, Suite 200 Santa Rosa, CA 95401 8 Telephone: (707) 542-5050 MGreenberg@abbeylaw.com 9 10 Attorneys for Plaintiff SEAN DUGGAN, individually and derivatively on behalf of 11 the Duggan Family Limited Partnership 12 13 SUPERIOR COURT OF THE STATE OF CALIFORNIA 14 FOR THE COUNTY OF SONOMA 15 16 SEAN DUGGAN, an individual, on his CASE NO. SCV-268905 own behalf and derivatively on behalf of 17 the Duggan Family Limited Partnership; NOTICE OF MOTION AND MOTION TO CONTINUE TRIAL DATE AND 18 Plaintiff, REQUEST FOR CASE TO BE PLACED ON CASE MANAGEMENT 19 v. CONFERENCE CALENDAR; MEMORANDUM OF POINTS AND 20 LYNN DUGGAN, an individual; KELLY AUTHORITIES MOFFAT, an individual, and DOES 1 through 21 25, inclusive, [Declarations of Lisa C. McCurdy and John A. Taylor, [Proposed] Order filed 22 Defendants, concurrently] 23 -and- DATE: TIME: 24 THE DUGGAN FAMILY LIMITED CTRM: 17 PARTNERSHIP, a California Limited 25 Partnership, 26 Nominal Defendant. 27 28 1 NOTICE OF MOTION AND MOTION FOR TRIAL CONTINUANCE AND CASE MANAGEMENT CONFERENCE ACTIVE 692119095 1 TO THE COURT, ALL PARTIES AND TO THEIR ATTORNEYS OF RECORD: 2 PLEASE TAKE NOTICE that, on ____, 2024 at ______, or as soon thereafter as may be heard in 3 front of the Honorable Bradford DeMeo, in Courtroom 17 of the Sonoma County Superior Court, located at 4 Empire College Annex, 3035 Cleveland Avenue, Suite 200, Santa Rosa, CA 95403, Plaintiff Sean Duggan 5 (“Plaintiff” or “Sean”) will, and hereby does, move the Court for an order continuing trial on this action for 6 a period of at least four months, which is presently set for February 2, 2024, extending the discovery 7 cutoff dates and motion dates according to the new trial date, and place the case on the Court’s case 8 management conference calendar regarding trial and necessary discovery motions. 9 DATED: December 19, 2023 GREENBERG TRAURIG, LLP 10 11 By: /s/ Lisa C. McCurdy 12 Lisa C. McCurdy Attorneys for Plaintiff 13 SEAN DUGGAN 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 NOTICE OF MOTION AND MOTION FOR TRIAL CONTINUANCE AND CASE MANAGEMENT CONFERENCE ACTIVE 692119095 TABLE OF CONTENTS 1 I. INTRODUCTION ............................................................................................................................... 5 2 II. BACKGROUND ................................................................................................................................. 8 3 A. Procedural Background ............................................................................................................ 8 4 B. Plaintiff’s Diligence ................................................................................................................. 9 III. LEGAL DISCUSSION ...................................................................................................................... 10 5 A. Legal Standard ....................................................................................................................... 10 6 C. The Court Should Grant This Motion .................................................................................... 11 7 1. Good Cause for a Continuance Exists Per California Rule of Court 3.1332(c) and Sonoma County Local Rules, Rule 4.9(B)................................................................. 11 8 2. Other Considerations Also Favor Granting the Motion to Continue. ........................ 12 9 IV. CONCLUSION .................................................................................................................................. 13 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 NOTICE OF MOTION AND MOTION FOR TRIAL CONTINUANCE AND CASE MANAGEMENT CONFERENCE ACTIVE 692119095 TABLE OF AUTHORITIES 1 2 Page(s) 3 Cases 4 Freeman v. Sullivant, 192 Cal. App. 4th 523 (2011) .................................................................................................................. 11 5 Lerma v. Cty. of Orange, 6 120 Cal. App. 4th 709 (2004) .................................................................................................................. 11 7 In re Marriage of Hoffmeister, 8 161 Cal. App. 3d 1163 (1984) ................................................................................................................. 11 9 Oliveros v. Cty. of L.A., 120 Cal. App. 4th 1389 (2004) .......................................................................................................... 10, 11 10 Statutes 11 Cal. Code of Civil Procedure § 583.130 .......................................................................................................... 7 12 Cal. Code of Civil Procedure § 583.310 .......................................................................................................... 7 13 14 Cal. Corp. Code § 15903.05....................................................................................................................... 5, 11 15 Cal. Corp. Code § 15904.08....................................................................................................................... 5, 11 16 Other Authorities 17 Cal. R. Ct. 3.1332(b) ...................................................................................................................................... 12 18 Cal. R. Ct. 3.1332(c) ...................................................................................................................... 7, 10, 11, 12 19 Cal. R. Ct. 3.1332(c)(7) ................................................................................................................................. 12 20 Cal. R. Ct. 3.1332(d) .................................................................................................................................. 7, 12 21 Cal. R. Ct. 3.1332(d)(5) ................................................................................................................................. 13 22 Cal. R. Ct. 3.1332(d)(10) ............................................................................................................................... 13 23 Sonoma County Superior Court Local Rule 4.9(B) ................................................................................. 10, 11 24 25 26 27 28 4 NOTICE OF MOTION AND MOTION FOR TRIAL CONTINUANCE AND CASE MANAGEMENT CONFERENCE ACTIVE 692119095 1 MEMORANDUM OF POINTS AND AUTHORITIES 2 I. INTRODUCTION 3 Good cause exists for a continuance of the trial because, through no fault of Plaintiff, (1) the 4 Partnership Property may (or may not) be sold near the end of January, which would alter the course of 5 trial and, specifically, liability and damages issues; (2) third party document subpoenas have been ignored; 6 (3) Defendants have inexplicably been unable (or unwilling) to assist with the facilitating responses to 7 those subpoenas; (4) the deposition of Plaintiff will not be completed until January 18, 2024; (5) 8 depositions of Defendants and third parties cannot be taken without a complete documentary record 9 (namely, the documents sought by the aforementioned subpoenas); and (6) as Plaintiff’s retained expert 10 confirms in his declaration, he cannot prepare his opinions on standard of care and damages while the 11 Property sale transaction is pending and without a complete documentary record (namely, the documents 12 sought by the aforementioned subpoenas). Therefore, this continuance is requested to ensure the trial of 13 this case is a full and fair one on its merits and to ensure that any relief awarded is complete and not 14 premature. More specifically: 15 First, as the Court is aware, the primary asset of the Partnership is commercial real property located 16 in Santa Rosa, California. It has been placed on the market by Defendants, and a sale still is pending. The 17 closing date has been continually extended, most recently until late January 17, 2021 (and may possibly be 18 extended further). (Declaration of Lisa C. McCurdy (“McCurdy Dec.”), Ex. 7.) As the Court also is aware, 19 two of the main issues in the litigation are (1) whether Defendants have authority to list the Property for 20 sale (and to consummate a sale) without Plaintiff’s agreement; and (2) leaving aside the question of 21 authority, whether the sale and its terms violate the duties owed to the Partnership by its purported general 22 partners.1 If trial were to move forward before the sale transaction is closed (or officially terminated), 23 Plaintiff will not be afforded complete relief. Even if the Court were to rule against Plaintiff on the issue of 24 authority to sell, it will not be possible to determine liability and damages issues flowing from the sale 25 26 27 1 As alleged in the Second Amended Complaint, the Corporations Code §§ 15903.05 and 15904.08 provide that limited partners owe duties of good faith and fair dealing, while general partners also owe duties of 28 care and loyalty, including avoiding adverse interests, acts of gross negligence, intentional misconduct. 5 NOTICE OF MOTION AND MOTION FOR TRIAL CONTINUANCE AND CASE MANAGEMENT CONFERENCE ACTIVE 692119095 1 while it is pending and terms are subject to change. (See Declaration of John A. Taylor, submitted 2 concurrently). 3 Second, and relatedly, Plaintiff served (and/or, in the case of third-party George Arce, has 4 attempted to serve) subpoenas to the buyer and various buyer entities, which have evolved over time, 5 identified in the various purchase and sale documents for the property. Plaintiff has been unable to locate 6 and serve the principal for the buyer entities, and the buyer entities have entirely ignored the subpoenas 7 (aside from an email response on November 21, 2023, stating that at least one buyer entity intends to retain 8 counsel). (McCurdy Dec., Ex. 4.) Plaintiff requested the assistance of Defendants in this regard, as 9 Defendants are unquestionably in contact with the buyer/buyer entities, but those requests have been 10 disregarded. The subpoenaed records are critical to understanding what the final terms are and why they 11 were agreed to, including: deflated price, the seller-financing being extended, the warranties being given, 12 and the prejudicial indemnification terms that survive any closing. There were no objections to these 13 subpoenas. Instead, they were just disregarded. Plaintiff is entitled to the documents sought and to 14 thereafter depose (at a minimum) Defendants about what they reveal. 15 Third, and relatedly, depositions of fact witnesses have not been completed, as Plaintiff cannot 16 conduct comprehensive depositions without the subpoenaed records. To comply with currently-set dates, 17 Plaintiff has served deposition notices for Lynn Duggan and Kelly Moffat, and is attempting to serve a 18 deposition subpoena on Abraham Moffat. But those depositions cannot go forward without the records 19 subpoenaed from the proposed buyer/buyer entities of the Partnership property, as discussed above. 20 Plaintiff is entitled to depose Defendants about the purchase and sale, financing, indemnification, and other 21 terms negotiated, with the benefit of complete records and final terms. 22 Fourth, and likewise, Defendants have taken no depositions. Defendants made no effort to 23 schedule a deposition of Plaintiff until this month (December). Defendants then initially insisted that 24 depositions be completed in December, despite counsel and Plaintiff’s stated unavailability for the 25 remainder of December, and defense counsel has been unavailable to discuss scheduling. Because of 26 27 28 6 NOTICE OF MOTION AND MOTION FOR TRIAL CONTINUANCE AND CASE MANAGEMENT CONFERENCE ACTIVE 692119095 1 Plaintiff’s and Plaintiff’s counsel’s travel and other case commitments, Plaintiff’s deposition will take 2 place on January 18, 2024.2 3 Fifth, there is no prejudice from the requested continuance. The case has been at issue for just over 4 three months, as Defendants filed verified answers to the second amended complaint in September 2023, 5 and is well within the time frame for bringing the case to trial set by Cal. Code of Civil Procedure § 6 583.310.3 While Defendants have said they will oppose this Motion, they have not identified any legally- 7 cognizable grounds for doing so. Instead, it is apparent that Defendants strategically want to force Plaintiff 8 into trial while the Property is in limbo and third parties are avoiding subpoenas so that Plaintiff will be 9 unfairly prejudiced in his ability to demonstrate liability and damages. 10 In sum, due to changed circumstances since the case was filed—the still pending sale of the 11 Property—the case is not ready for a full and fair trial on the merits. Second, despite Plaintiff’s efforts to 12 complete discovery, the current trial schedule leaves insufficient time for the parties to complete discovery, 13 including fact and expert depositions, and to seek court assistance on any unresolved issues.4 14 Accordingly, under California Rule of Court 3.1332(c) and (d), and as detailed further below, there 15 is good cause for a continuance of the trial, and Plaintiff therefore respectfully requests that the Court 16 continue the current trial date to a later date that is convenient to the Court and counsel approximately six 17 months from the current trial date, and that all related deadlines (e.g., MSC, TRC, and fact, expert, and 18 motion discovery cut-offs) are continued in accordance with the new trial date. Plaintiff also suggests, and 19 requests, that the Court place the case on its case management conference calendar to discuss trial setting 20 and related matters with the Parties. 21 22 23 24 2 Counsel for Plaintiff are traveling on business and holiday travel out of town from December 18, through 25 and including January 2, 2024. Counsel is thereafter preparing for and in evidentiary hearings, mediations, and depositions anticipated to be completed on January 16, 2024. 26 3 Section 583.130 specifies that it is the policy of the State to prioritize trial on the merits. 27 4 Although Plaintiff will continue efforts to resolve subpoena compliance with Defendants’ assistance, it appears that motion practice and the Court’s assistance may be required. In addition, on December 18, 28 2023, Plaintiff disclosed one testifying expert; Defendants disclosed four. 7 NOTICE OF MOTION AND MOTION FOR TRIAL CONTINUANCE AND CASE MANAGEMENT CONFERENCE ACTIVE 692119095 1 II. BACKGROUND 2 A. Procedural Background 3 This case initially was filed (and a first amended complaint filed) in July 2021. Documents 4 produced by Defendant Lynn Duggan in September 2022 revealed additional facts and claims that 5 necessitated the filing of Plaintiff’s motion for leave to file a second amended complaint. Plaintiff’s motion 6 for leave was filed in May 2023. The motion was necessary because Defendants refused to stipulate to 7 Plaintiff’s filing of the second amended complaint. However, all Defendants ultimately filed notices of 8 non-opposition to the motion for leave. The operative Verified Second Amended Complaint was filed in 9 August 2023, and Defendants answers were filed on September 7, 2023, just over three months ago. 10 Since then, Plaintiff has diligently attempted to obtain the information needed regarding a proposed 11 sale of the Partnership’s real property asset, both informally and through deposition subpoenas issued in 12 October 2023. Plaintiff has obtained only partial information from Defendants informally regarding the 13 proposed sale, and the subpoenas issued to the various purchasing entities have been ignored; Plaintiff has 14 been unable to locate and serve the principal of the purchasing entities despite multiple attempts and 15 despite Plaintiff’s request for assistance in that regard from Defendants. (McCurdy Dec., ¶¶ 7-11, Exs. 3- 16 6.) 17 Most recently, on November 20, 2023, counsel for Plaintiff contacted counsel for Defendants to 18 assist with facilitating service and responses to the subpoenas, as Defendants are in contact with the 19 proposed buyer/buyer entities to whom the subpoenas were directed. Plaintiff also requested an update on 20 the status of the sale transaction, which at that time was set to close on November 29, 2023, per an 8th 21 amendment to the purchase and sale agreement. Receiving no response, Plaintiff inquired again on 22 November 28, 2023. (McCurdy Dec., ¶¶ 11-13, Exs. 5-8.) 23 In response, defense counsel provided a 9th extension to the purchase and sale agreement on 24 November 29, 2023, which extends the closing date for the sale transaction to January 17, 2024, but did not 25 address the subpoenas. (McCurdy Dec., ¶¶ 12-15, Exs. 7-10.) Instead, on November 30, 2023, counsel for 26 Defendant Moffat requested dates for Sean Duggan’s deposition in December or early January. Plaintiff’s 27 counsel specified that a deposition of Plaintiff would need to take place in January. Plaintiff’s counsel also 28 8 NOTICE OF MOTION AND MOTION FOR TRIAL CONTINUANCE AND CASE MANAGEMENT CONFERENCE ACTIVE 692119095 1 noted that, given the need to complete discovery, address subpoenas, and allow expert witness to prepare, a 2 trial continuance may be required. Counsel for Defendant Moffat did not respond. However, on December 3 6, 2023, counsel for Lynn Duggan stated that her client would “oppose any motion to continue,” and asked 4 to set depositions in December. Counsel for Plaintiff suggested a call on the afternoon of December 8—a 5 window of time when Lynn Duggan’s counsel indicated availability—but never heard back. (McCurdy 6 Dec., Exs. 8 & 9.) 7 Since then, counsel for Defendant Moffat noticed Sean Duggan’s deposition for January 2, 2023, 8 undoubtedly due to the current discovery cut-off, even though they knew by that time that neither Sean 9 Duggan nor his counsel are available on January 2.5 (McCurdy Dec., ¶¶ 14-15.) Again on December 13, 10 2023, counsel for Sean Duggan emailed regarding scheduling and the need for a trial continuance. That 11 email was, yet again, ignored until repeated further requests for a response, to which defense counsel then 12 abruptly responded that they “want their day in court.” (McCurdy Dec., ¶ 16, Ex. 11.) 13 It is clear to Plaintiff that Defendants are attempting to take advantage of a situation that they have 14 helped create, forcing Plaintiff into a trial at great prejudice. Under the current circumstances, the only 15 resulting prejudice would be to Plaintiff if a continuance is denied. 16 B. Plaintiff’s Diligence 17 Plaintiff has diligently endeavored to obtain key information and documents needed for trial 18 preparation and his damages expert. He has served multiple sets of written discovery on Lynn Duggan, to 19 which he has responded. Based on the information and documents provided by Lynn Duggan, and 20 information discovered independently by Plaintiff, Plaintiff filed a motion for leave to file an amended 21 complaint. As described above, Plaintiff served third party document subpoenas to obtain records that are 22 key to issues of liability and damages in this case. Those subpoenas have been ignored. Plaintiff requested 23 that Defendants confirm contact information for the subpoenaed persons and entities and help facilitate 24 compliance, but those efforts have been fruitless. 25 Plaintiff also has repeatedly requested updates from Defendants regarding the status of the pending 26 Property sale in an effort to keep himself apprised of a critical issue in this case. However, the transaction 27 5 Kelly Moffat’s counsel thereafter served a notice of unavailability anyway, from December 22, 2023, 28 through January 5, 2024. (McCurdy Dec., Ex. 13.) 9 NOTICE OF MOTION AND MOTION FOR TRIAL CONTINUANCE AND CASE MANAGEMENT CONFERENCE ACTIVE 692119095 1 remains pending with a current closing date of late February 2024. Updates on the transaction status have 2 not been provided to Plaintiff without prompting and, even then, no information is provided beyond the 3 executed extensions of the purchase and sale agreement. 4 III. LEGAL DISCUSSION 5 A. Legal Standard 6 A trial may be continued for “good cause.” Cal. R. Ct. 3.1332(c). The California Rules of Court 7 provide several circumstances that may constitute “good cause,” including “[t]he unavailability of trial 8 counsel because of … excusable circumstances,” “[a] party’s excused inability to obtain essential 9 testimony, documents, or other material evidence despite diligent efforts,” and “[a] significant, 10 unanticipated change in the status of the case as a result of which the case is not ready for trial.” Id., 11 3.1332(c)(3), (6), (7). The Rules of Court also identify other factors to consider, including: (1) proximity to 12 the trial date; (2) whether there was any previous continuance, extension of time, or delay of trial due to 13 any party; (3) the length of the continuance requested; (4) the availability of alternative means to address 14 the problem that gave rise to the motion for continuance; (5) the prejudice that parties or witnesses will 15 suffer as a result of the continuance; (6) whether the case is entitled to preferential trial setting; (7) the trial 16 court’s calendar; (8) whether trial counsel is engaged in another trial; (9) whether all parties have stipulated 17 to a continuance; (10) whether the interests of justice are best served by a continuance, by the trial of the 18 matter, or by imposing conditions on the continuance; and (11) any other fact or circumstance relevant to 19 the fair determination of the motion. Id., 3.1332(d). No one factor is dispositive, and all relevant facts and 20 circumstances are to be considered. See Oliveros v. Cty. of L.A., 120 Cal. App. 4th 1389, 1399 (2004) 21 (requiring courts to consider “all of the facts and circumstances relevant to a ruling”). 22 The Sonoma County Superior Court’s Local Rules, Rule 4.9(B) also discuss the standard applied in 23 this Court: “Continuances of trials may be granted, upon good cause show, by stipulation of the parties or 24 upon written notice of motion. Absent extraordinary circumstances failure to complete discovery would 25 generally not be considered good cause. Any motion for continuance must be calendared for hearing before 26 the Assigned Judge on the Trial calendar at least seven (7) calendar days in advance of the trial date, unless 27 28 10 NOTICE OF MOTION AND MOTION FOR TRIAL CONTINUANCE AND CASE MANAGEMENT CONFERENCE ACTIVE 692119095 1 good cause is shown for a shortening of such time. Stipulation of trial counsel by itself does not constitute 2 good cause for granting a continuance.” 3 Additionally, while ruling on a motion to continue trial is within a court’s discretion, “[t]he trial 4 judge must exercise [its] discretion with due regard to all interests involved, and the refusal of a 5 continuance which has the practical effect of denying the applicant a fair hearing is reversible error.” In re 6 Marriage of Hoffmeister, 161 Cal. App. 3d 1163, 1169 (1984). A court is considered to have the authority 7 to “maintain control over the pace of litigation” on the one hand, but “[o]n the other hand, [it] must abide 8 by the guiding principle of deciding cases on their merits rather than on procedural deficiencies.” Lerma v. 9 Cty. of Orange, 120 Cal. App. 4th 709, 718 (2004). “Such decisions must be made in an atmosphere of 10 substantial justice. When the two policies collide head-on, the strong public policy favoring disposition on 11 the merits outweighs the competing policy favoring judicial efficiency.” Oliveros, 120 Cal. App. 4th at 12 1395. Thus, the denial of a continuance is an abuse of discretion where it “results in the denial of a fair 13 hearing, or otherwise prejudices a party.” Freeman v. Sullivant, 192 Cal. App. 4th 523, 527 (2011). 14 C. The Court Should Grant This Motion 15 1. Good Cause for a Continuance Exists Per California Rule of Court 3.1332(c) and 16 Sonoma County Local Rules, Rule 4.9(B). 17 There is good cause under California Rule of Court 3.1332(c) and Local Rule 4.9(B) to continue the 18 trial for multiple reasons: 19 First, as discussed, this case cannot be fully resolved while a sale of the Partnership property is 20 pending. Until the transaction is closed, Plaintiff and his expert cannot fully evaluation Plaintiff’s breach of 21 fiduciary duty claims and Plaintiff’s expert cannot prepare his damages opinion. (See Declaration of John 22 A. Taylor (“Taylor Decl.”), filed concurrently.) The closing date has been continually extended, most 23 recently until late January 17, 2021 (and may possibly be extended further). As the Court also is aware, two 24 of the main issues in the litigation are (1) whether Defendants have authority to list the Property for sell 25 (and to consummate a sale) without Plaintiff’s agreement; and (2) leaving aside the question of authority, 26 whether the sale and its terms violate the duties owed to the Partnership by its purported general partners. 27 As alleged in the Second Amended Complaint, Corporations Code §§ 15903.05 and 15904.08 provide that 28 11 NOTICE OF MOTION AND MOTION FOR TRIAL CONTINUANCE AND CASE MANAGEMENT CONFERENCE ACTIVE 692119095 1 limited partners owe duties of good faith and fair dealing, while general partners also owe duties of care 2 and loyalty, including avoiding adverse interests, acts of gross negligence, intentional misconduct. 3 Second, for the same reasons, Plaintiff would be severely prejudiced if the continuance is not 4 granted because if trial were to move forward before the sale transaction is closed (or officially terminated), 5 Plaintiff will not be afforded complete relief. When this litigation was filed, the Property was not under 6 contract for sale and, thus, the issues of authority, duty, and damages were ripe for consideration. Now, due 7 to a significant change in the circumstances of the case, even if the Court were to rule against Plaintiff on 8 the issue of authority to sell, it will not be possible to determine liability and damages issues flowing from 9 the sale while it is pending and terms are subject to change. Thus, the case is not ready for trial. See Cal. R. 10 Ct. 3.1332(c)(7). If trial were to move forward before the sale transaction is closed (or officially 11 terminated), Plaintiff will not be afforded complete relief. (See Taylor Decl.) Thus, maintaining the current 12 trial date would unfairly prejudice Plaintiff and Plaintiff therefore respectfully submits that the requested 13 continuance should be granted. See Cal. R. Ct. 3.1332(c). 14 Third, Plaintiff has repeatedly attempted to move this case forward, even enlisting Defendants’ 15 assistance in facilitating compliance with records subpoenas to the third parties that Defendants have 16 contact with. Plaintiff promptly raised both the issue of the records subpoenas, and the need to continue the 17 trial date once the ninth extension of the Property purchase and sale agreement was received on November 18 29, 2023, less than three weeks ago. Ultimately, when it became clear that Defendants intend to attempt to 19 push the trial forward despite the issues identified herein (which would certainly prejudice Plaintiff), 20 Plaintiff prepared this Motion and notified Defendants that it would be filed. See Cal. R. Ct. 3.1332(b) (“[a] 21 party seeking a continuance of the date set for trial … must make [its] motion … as soon as reasonably 22 practical once the necessity for the continuance is discovered”). 23 2. Other Considerations Also Favor Granting the Motion to Continue. 24 California Rule of Court 3.1332(d) enumerates additional factors to be considered, which also favor 25 granting Plaintiff’s Motion. Specifically, despite what Defendants will claim, no party will suffer any 26 prejudice from the continuance. Conversely, Plaintiff would be unfairly prejudiced if the Court does not 27 continue the trial date, because Plaintiff will be deprived of the ability to obtain key documents, 28 12 NOTICE OF MOTION AND MOTION FOR TRIAL CONTINUANCE AND CASE MANAGEMENT CONFERENCE ACTIVE 692119095 1 information, and testimony in time for trial, and in time for his expert to prepare his opinions. See Cal. R. 2 Ct. 3.1332(d)(5) & (10). 3 IV. CONCLUSION 4 For the foregoing reasons, there is good cause to grant this Motion, continue the trial date to a date 5 no sooner than late May 2024, and place the case on the Court’s case management conference calendar so 6 that the parties and the Court can discuss the issues set forth herein. 7 DATED: December 19, 2023 GREENBERG TRAURIG, LLP 8 9 By: /s/ Lisa C. McCurdy 10 Lisa C. McCurdy Attorneys for Plaintiff 11 SEAN DUGGAN 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 13 NOTICE OF MOTION AND MOTION FOR TRIAL CONTINUANCE AND CASE MANAGEMENT CONFERENCE ACTIVE 692119095 1 PROOF OF SERVICE 2 STATE OF CALIFORNIA, COUNTY OF LOS ANGELES 3 I am employed in the aforesaid county, State of California; I am over the age of 18 years and not a party to the within action; my business address is 1840 Century Park East, Suite 1900, Los Angeles, 4 CA 90067-2121; my email address is sharifih@gtlaw.com. 5 On December 20, 2023, I served NOTICE OF MOTION AND MOTION TO CONTINUE TRIAL DATE AND REQUEST FOR CASE TO BE PLACED ON CASE MANAGEMENT 6 CONFERENCE CALENDAR; MEMORANDUM OF POINTS AND AUTHORITIES on the 7 interested parties in this action as follows: 8 Anne Olsen Noland, Hamerly, Etienne & Hoss, APC 9 333 Salinas Street, P.O. Box 2510 Salinas, CA 93902 10 Email: aolsen@nheh.com 11 Attorneys for Defendant Lynn Duggan 12 Marshall E. Bluestone 13 Bluestone Faircloth & Olson, LLP 14 1825 4th Street Santa Rosa, CA 95404 15 Email: marshall@bfolegal.com Email: emilee@bfolegal.com 16 Attorneys for Defendant Duggan Family Limited Partnership 17 18 Michael Schklovsky Anderson Zeigler, APC 19 50 Old Courthouse Square, 5th Fl. Santa Rosa, CA 95404 20 Email: mshklovsky@andersonzeigler.com 21 Attorneys for Defendant Kelly Moffat 22 (BY E-MAIL) I caused the above document(s) to be transmitted to the office(s) of the 23 addressee(s) listed above by electronic mail at the e-mail address(es) set forth above per agreement and consent of the addressee(s). The document was served electronically and the 24 transmission was reported complete and without error. 25 (STATE) I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. 26 Executed on December 20, 2023 at Los Angeles, California. 27 /s/ Haleh Sharifi 28 1 Haleh Sharifi PROOF OF SERVICE