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
Attorneys for Plaintiff SEAN DUGGAN,
10 individually and derivatively on behalf of
the Duggan Family Limited Partnership
11
12
SUPERIOR COURT OF THE STATE OF CALIFORNIA
13
COUNTY OF SONOMA
14
15 SEAN DUGGAN, an individual, on his CASE NO. SCV-268905
own behalf and derivatively on behalf of
16 the Duggan Family Limited Partnership; Assigned for all purposes to Hon. Bradford
DeMeo, Dept. 17
17 Plaintiff,
[PROPOSED] ORDER GRANTING
18 v. PLAINTIFF’S MOTION FOR TRIAL
CONTINUANCE AND VACATING TRIAL
19 LYNN DUGGAN, an individual; KELLY DATE
MOFFAT, an individual, and DOES 1 through
20 25, inclusive, Date: January 19, 2024
Time: 3:00 p.m.
21 Defendants, Dept.: 17
22 -and-
23 THE DUGGAN FAMILY LIMITED
PARTNERSHIP, a California Limited
24 Partnership,
25 Nominal Defendant.
26
27
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[PROPOSED] ORDER
ACTIVE 692897032
1 [PROPOSED] ORDER
2 On December 20, 2023, Plaintiff Sean Duggan (“Plaintiff”) filed a motion to continue the trial date
3 in this action. Defendant Lynn Duggan filed an Opposition on January 12, 2024. Defendant Kelly Moffat
4 and Nominal Defendant The Duggan Family Limited Partnership, both filed individual Joinders to the
5 Opposition on January 12, 2024. After reviewing all relevant papers on file in this action, the Court rules
6 on Plaintiff’s motion as set forth below.
7 Facts
8 Plaintiff alleges that he is a limited partner in Defendant the Duggan Family Limited Partnership
9 (the “Partnership”), Defendant Lynn Duggan (“Lynn”) is a general partner in the Partnership, and
10 Defendant Kelly Moffat (“Moffat”) is another limited partner in the Partnership. He complains that Lynn
11 has engaged in wrongdoing regarding the Partnership, including attempting to sell a portion of his general
12 partner interest (the “GP Interest”) to Kelly. As a result of developments during this litigation, including
13 Defenda[n]t[s]’ [sic] efforts to sell an important Partnership asset, real property comprising the
14 Summerfield Shopping Center (the “Property”), he ultimately filed a second amended complaint (“SAC”)
15 which includes, amongst others, claims for wrongdoing based on Defendants’ efforts to sell the Property.
16 Motion
17 Plaintiff moves the court to continue the trial date and set this matter for a case management
18 conference (“CMC”), continuing the discovery cut-off dates to be based on the new trial date. Defendants
19 Lynn and the Partnership oppose the motion.
20 Under California Rule of Court (“CRC”) 3.1332, a party may move the court to continue
21 trial. Subdivision (c) states that such continuances are “disfavored” but each application “must be
22 considered on its own merits” and lists the factors which “may” indicate good cause for a
23 continuance. These include those on which Plaintiff here relies:
24 (3) The unavailability of trial counsel because of death, illness, or other excusable circumstances;
25 …
26 (6) A party’s excused inability to obtain essential testimony, documents, or other material evidence
27 despite diligent efforts; or
28 …
2
[PROPOSED] ORDER
ACTIVE 692897032
1 (7) A significant, unanticipated change in the status of the case as a result of which the case is not
2 ready for trial.
3 Subdivision (d) states that “the court must consider all the facts and circumstances that are relevant
4 to the determination” and that these “may” include the following:
5 (1) The proximity of the trial date;
6 (2) Whether there was any previous continuance, extension of time, or delay of trial due to any
7 party;
8 (3) The length of the continuance requested;
9 (4) The availability of alternative means to address the problem that gave rise to the motion or
10 application for a continuance;
11 (5) The prejudice that parties or witnesses will suffer as a result of the continuance;
12 (6) If the case is entitled to a preferential trial setting, the reasons for that status and whether the
13 need for a continuance outweighs the need to avoid delay;
14 (7) The court’s calendar and the impact of granting a continuance on other pending trials;
15 (8) Whether trial counsel is engaged in another trial;
16 (9) Whether all parties have stipulated to a continuance;
17 (10) Whether the interests of justice are best served by a continuance, by the trial of the matter, or
18 by imposing conditions on the continuance; and
19 (11) Any other fact or circumstance relevant to the fair determination of the motion or application.
20 The court ultimately must look to substantial justice rather than focusing merely on judicial
21 efficiency. Hernandez c. Sup.Ct. (2004) 115 Cal.App.4th 1242, 1246.
22 On the face of the schedule, this motion seems arguably late and unreasonable. Trial is currently
23 set for February 2, 2024, and thus only two weeks from this hearing date. Plaintiff filed this motion on
24 December 20, 2023, but was given a hearing date after the scheduled trial date. He only obtained an order
25 shortening time (“OST) advancing the hearing on January 9, 2024. Defendants point out that this matter
26 has already had several trial continuances, with the parties stipulating to the current date of June 15, 2023.
27 However, Plaintiff bases this motion on the delayed sale of the Partnership’s Property, which itself
28 at the crux of the dispute. He asserts that two key issues in this litigation are whether Defendants have
3
[PROPOSED] ORDER
ACTIVE 692897032
1 the authority to sell the Property and whether the sale and terms violate the duties owed to the
2 Partnership. He notes that the sale has been delayed several times and most recently until, at the earliest,
3 January 17, 2024. This, he contends, prevents him from determining Defendants’ liability if the terms of
4 the sale, and its results, are not yet clear. He also contends that he has been unable to serve his subpoena
5 on the principal for the Property buyer, which is necessary to explore the issues, and Defendants have
6 failed to help him locate that principal. He also asserts that both he and Defendants have yet to complete
7 depositions. He states that Defendants made no effort to depose him until December 2023 and have failed
8 to set a date with Plaintiff to complete the deposition, while he needs the information from the buyer in
9 order to complete the depositions which he is trying to conduct.
10 Defendants counter that the continuance will cause prejudice because it is not certain when the
11 sale will occur and there is no good cause because if the sale occurs post-trial, Plaintiff can then evaluate
12 it to determine if he suffered damages because the price was too low. Defendants also note that Lynn is
13 75 years old and has battled skin cancer, creating an increased risk that he will not be able to assist his
14 counsel in the trial if it is delayed too long. They also note that the buyer has retained counsel who
15 contacted Plaintiff on December 20, 2023, to discuss producing the requested documents.
16 Under these circumstances, Plaintiff’s motion, though not without weaknesses, is persuasive. The
17 history of the trial date and continuances is immaterial in the end, given that the bases for the continuance
18 are incomplete discovery by both sides, with Defendants at least partly to blame, and the fact that
19 Defendants have persisted in selling the Property but not yet completed the sale, with it being
20 delayed. Plaintiff is not a part of that sale or the delay.
21 As noted, the sale of the Property is a key issue in Plaintiff’s claims. Defendants’ assertion that
22 there will be no prejudice from having the sale completed after the trial is not persuasive. It fails to take
23 into account all of the possible ramifications of the sale and the implications of the details which may have
24 bearing on the trial given that the lawsuit in part is about the sale, the efforts, the terms, and other factors,
25 not merely the price. Allowing or requiring parties to return to court after the trial in order to determine
26 if the sale price is too low also appears to be inefficient and potentially fraught with unforeseen problems,
27 procedural and substantive.
28
4
[PROPOSED] ORDER
ACTIVE 692897032
1 Discovery matters also support the continuance. Although the buyer has now contacted Plaintiff
2 to discuss providing documents pursuant to a subpoena, nothing indicates that this discovery is
3 complete. Moreover, the parties have yet to complete their own depositions.
4 Finally, there appears little threat of prejudice from the continuance. Defendants demonstrate
5 nothing other than delay. The condition of Lynn is unclear and there is no clear evidence that a delay
6 would result in Lynn dying or becoming incapacitated prior to a continued trial, while Defendants inly
7 really claim this would cause problems because it might impair Lynn’s ability to assist
8 counsel. Defendants present no clear prejudice regarding the litigation directly related to Lynn’s possible
9 health problems, and no prejudice to Lynn, much less the Partnership.
10 Conclusion
11 The motion is GRANTED. The trial date of February 2, 2024, is hereby VACATED. A Case
12 Management Conference hearing is now set for April 18, 2024, at 3:00 p.m. in Department 17. A case
13 management statement must be filed no later than fifteen (15) Calendar days prior to the hearing. Filing
14 of complete dismissal or Judgment two (2) days before hearing will result in matter being dropped from
15 calendar.
16 IT IS SO ORDERED.
17
18 Date: ______________ __________________________
Hon. Bradford DeMeo
19 SUPERIOR COURT JUDGE
20
21
22
23
24
25
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27
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[PROPOSED] ORDER
ACTIVE 692897032
1
PROOF OF SERVICE
2 (Sean Duggan v. Lynn Duggan, et al.)
Sonoma County Case No: SCV-268905
3
STATE OF CALIFORNIA, COUNTY OF LOS ANGELES
4
I am employed in the aforesaid county, State of California; I am over the age of 18 years and not
5 a party to the within action; my business address is 1840 Century Park East, Suite 1900, Los Angeles,
6 CA 90067-2121. My email address is sharifih@gtlaw.com
7 On January 25, 2024, I served the document(s) described as [PROPOSED] ORDER GRANTING
PLAINTIFF’S MOTION FOR A TRIAL CONTINUANCE AND VACATING TRIAL DATE on
8 the interested parties in this action by:
9 Anne Olsen Marshall E. Bluestone
Noland, Hamerly, Etienne & Hoss, APC Bluestone Faircloth & Olson, LLP
10 333 Salinas Street, P.O. Box 2510 1825 4th Street
Salinas, CA 93902 Santa Rosa, CA 95404
11 Email: aolsen@nheh.com Email: marshall@bfolegal.com
Attorneys for Defendant Lynn Duggan Email: emilee@bfolegal.com
12
Attorneys for Defendant Duggan Family Limited
13 Partnership
14 Michael Schklovsky
Anderson Zeigler, APC
15 50 Old Courthouse Square, 5th Fl.
Santa Rosa, CA 95404
16 Email: mshklovsky@andersonzeigler.com
17 Attorneys for Defendant Kelly Moffat
18
19 (BY ELECTRONIC MAIL)
On the below date, I transmitted the foregoing document(s) by electronic mail, and the
20 transmission was reported as complete and without error. This method of service was made
pursuant to an agreement entered by and between counsel.
21
22 (STATE) I declare under penalty of perjury under the laws of the State of California that the
23 foregoing is true and correct.
24
Executed on January 25, 2024, at Los Angeles, California.
25
26 /s/ Haleh Sharifi
27 Haleh Sharifi
28
6
[PROPOSED] ORDER
ACTIVE 692897032
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 Attorneys for Plaintiff SEAN DUGGAN, 10 individually and derivatively on behalf of the Duggan Family Limited Partnership 11 12 SUPERIOR COURT OF THE STATE OF CALIFORNIA 13 COUNTY OF SONOMA 14 15 SEAN DUGGAN, an individual, on his CASE NO. SCV-268905 own behalf and derivatively on behalf of 16 the Duggan Family Limited Partnership; Assigned for all purposes to Hon. Bradford DeMeo, Dept. 17 17 Plaintiff, [PROPOSED] ORDER GRANTING 18 v. PLAINTIFF’S MOTION FOR TRIAL CONTINUANCE AND VACATING TRIAL 19 LYNN DUGGAN, an individual; KELLY DATE MOFFAT, an individual, and DOES 1 through 20 25, inclusive, Date: January 19, 2024 Time: 3:00 p.m. 21 Defendants, Dept.: 17 22 -and- 23 THE DUGGAN FAMILY LIMITED PARTNERSHIP, a California Limited 24 Partnership, 25 Nominal Defendant. 26 27 28 [PROPOSED] ORDER ACTIVE 692897032 1 [PROPOSED] ORDER 2 On December 20, 2023, Plaintiff Sean Duggan (“Plaintiff”) filed a motion to continue the trial date 3 in this action. Defendant Lynn Duggan filed an Opposition on January 12, 2024. Defendant Kelly Moffat 4 and Nominal Defendant The Duggan Family Limited Partnership, both filed individual Joinders to the 5 Opposition on January 12, 2024. After reviewing all relevant papers on file in this action, the Court rules 6 on Plaintiff’s motion as set forth below. 7 Facts 8 Plaintiff alleges that he is a limited partner in Defendant the Duggan Family Limited Partnership 9 (the “Partnership”), Defendant Lynn Duggan (“Lynn”) is a general partner in the Partnership, and 10 Defendant Kelly Moffat (“Moffat”) is another limited partner in the Partnership. He complains that Lynn 11 has engaged in wrongdoing regarding the Partnership, including attempting to sell a portion of his general 12 partner interest (the “GP Interest”) to Kelly. As a result of developments during this litigation, including 13 Defenda[n]t[s]’ [sic] efforts to sell an important Partnership asset, real property comprising the 14 Summerfield Shopping Center (the “Property”), he ultimately filed a second amended complaint (“SAC”) 15 which includes, amongst others, claims for wrongdoing based on Defendants’ efforts to sell the Property. 16 Motion 17 Plaintiff moves the court to continue the trial date and set this matter for a case management 18 conference (“CMC”), continuing the discovery cut-off dates to be based on the new trial date. Defendants 19 Lynn and the Partnership oppose the motion. 20 Under California Rule of Court (“CRC”) 3.1332, a party may move the court to continue 21 trial. Subdivision (c) states that such continuances are “disfavored” but each application “must be 22 considered on its own merits” and lists the factors which “may” indicate good cause for a 23 continuance. These include those on which Plaintiff here relies: 24 (3) The unavailability of trial counsel because of death, illness, or other excusable circumstances; 25 … 26 (6) A party’s excused inability to obtain essential testimony, documents, or other material evidence 27 despite diligent efforts; or 28 … 2 [PROPOSED] ORDER ACTIVE 692897032 1 (7) A significant, unanticipated change in the status of the case as a result of which the case is not 2 ready for trial. 3 Subdivision (d) states that “the court must consider all the facts and circumstances that are relevant 4 to the determination” and that these “may” include the following: 5 (1) The proximity of the trial date; 6 (2) Whether there was any previous continuance, extension of time, or delay of trial due to any 7 party; 8 (3) The length of the continuance requested; 9 (4) The availability of alternative means to address the problem that gave rise to the motion or 10 application for a continuance; 11 (5) The prejudice that parties or witnesses will suffer as a result of the continuance; 12 (6) If the case is entitled to a preferential trial setting, the reasons for that status and whether the 13 need for a continuance outweighs the need to avoid delay; 14 (7) The court’s calendar and the impact of granting a continuance on other pending trials; 15 (8) Whether trial counsel is engaged in another trial; 16 (9) Whether all parties have stipulated to a continuance; 17 (10) Whether the interests of justice are best served by a continuance, by the trial of the matter, or 18 by imposing conditions on the continuance; and 19 (11) Any other fact or circumstance relevant to the fair determination of the motion or application. 20 The court ultimately must look to substantial justice rather than focusing merely on judicial 21 efficiency. Hernandez c. Sup.Ct. (2004) 115 Cal.App.4th 1242, 1246. 22 On the face of the schedule, this motion seems arguably late and unreasonable. Trial is currently 23 set for February 2, 2024, and thus only two weeks from this hearing date. Plaintiff filed this motion on 24 December 20, 2023, but was given a hearing date after the scheduled trial date. He only obtained an order 25 shortening time (“OST) advancing the hearing on January 9, 2024. Defendants point out that this matter 26 has already had several trial continuances, with the parties stipulating to the current date of June 15, 2023. 27 However, Plaintiff bases this motion on the delayed sale of the Partnership’s Property, which itself 28 at the crux of the dispute. He asserts that two key issues in this litigation are whether Defendants have 3 [PROPOSED] ORDER ACTIVE 692897032 1 the authority to sell the Property and whether the sale and terms violate the duties owed to the 2 Partnership. He notes that the sale has been delayed several times and most recently until, at the earliest, 3 January 17, 2024. This, he contends, prevents him from determining Defendants’ liability if the terms of 4 the sale, and its results, are not yet clear. He also contends that he has been unable to serve his subpoena 5 on the principal for the Property buyer, which is necessary to explore the issues, and Defendants have 6 failed to help him locate that principal. He also asserts that both he and Defendants have yet to complete 7 depositions. He states that Defendants made no effort to depose him until December 2023 and have failed 8 to set a date with Plaintiff to complete the deposition, while he needs the information from the buyer in 9 order to complete the depositions which he is trying to conduct. 10 Defendants counter that the continuance will cause prejudice because it is not certain when the 11 sale will occur and there is no good cause because if the sale occurs post-trial, Plaintiff can then evaluate 12 it to determine if he suffered damages because the price was too low. Defendants also note that Lynn is 13 75 years old and has battled skin cancer, creating an increased risk that he will not be able to assist his 14 counsel in the trial if it is delayed too long. They also note that the buyer has retained counsel who 15 contacted Plaintiff on December 20, 2023, to discuss producing the requested documents. 16 Under these circumstances, Plaintiff’s motion, though not without weaknesses, is persuasive. The 17 history of the trial date and continuances is immaterial in the end, given that the bases for the continuance 18 are incomplete discovery by both sides, with Defendants at least partly to blame, and the fact that 19 Defendants have persisted in selling the Property but not yet completed the sale, with it being 20 delayed. Plaintiff is not a part of that sale or the delay. 21 As noted, the sale of the Property is a key issue in Plaintiff’s claims. Defendants’ assertion that 22 there will be no prejudice from having the sale completed after the trial is not persuasive. It fails to take 23 into account all of the possible ramifications of the sale and the implications of the details which may have 24 bearing on the trial given that the lawsuit in part is about the sale, the efforts, the terms, and other factors, 25 not merely the price. Allowing or requiring parties to return to court after the trial in order to determine 26 if the sale price is too low also appears to be inefficient and potentially fraught with unforeseen problems, 27 procedural and substantive. 28 4 [PROPOSED] ORDER ACTIVE 692897032 1 Discovery matters also support the continuance. Although the buyer has now contacted Plaintiff 2 to discuss providing documents pursuant to a subpoena, nothing indicates that this discovery is 3 complete. Moreover, the parties have yet to complete their own depositions. 4 Finally, there appears little threat of prejudice from the continuance. Defendants demonstrate 5 nothing other than delay. The condition of Lynn is unclear and there is no clear evidence that a delay 6 would result in Lynn dying or becoming incapacitated prior to a continued trial, while Defendants inly 7 really claim this would cause problems because it might impair Lynn’s ability to assist 8 counsel. Defendants present no clear prejudice regarding the litigation directly related to Lynn’s possible 9 health problems, and no prejudice to Lynn, much less the Partnership. 10 Conclusion 11 The motion is GRANTED. The trial date of February 2, 2024, is hereby VACATED. A Case 12 Management Conference hearing is now set for April 18, 2024, at 3:00 p.m. in Department 17. A case 13 management statement must be filed no later than fifteen (15) Calendar days prior to the hearing. Filing 14 of complete dismissal or Judgment two (2) days before hearing will result in matter being dropped from 15 calendar. 16 IT IS SO ORDERED. 17 18 Date: ______________ __________________________ Hon. Bradford DeMeo 19 SUPERIOR COURT JUDGE 20 21 22 23 24 25 26 27 28 5 [PROPOSED] ORDER ACTIVE 692897032 1 PROOF OF SERVICE 2 (Sean Duggan v. Lynn Duggan, et al.) Sonoma County Case No: SCV-268905 3 STATE OF CALIFORNIA, COUNTY OF LOS ANGELES 4 I am employed in the aforesaid county, State of California; I am over the age of 18 years and not 5 a party to the within action; my business address is 1840 Century Park East, Suite 1900, Los Angeles, 6 CA 90067-2121. My email address is sharifih@gtlaw.com 7 On January 25, 2024, I served the document(s) described as [PROPOSED] ORDER GRANTING PLAINTIFF’S MOTION FOR A TRIAL CONTINUANCE AND VACATING TRIAL DATE on 8 the interested parties in this action by: 9 Anne Olsen Marshall E. Bluestone Noland, Hamerly, Etienne & Hoss, APC Bluestone Faircloth & Olson, LLP 10 333 Salinas Street, P.O. Box 2510 1825 4th Street Salinas, CA 93902 Santa Rosa, CA 95404 11 Email: aolsen@nheh.com Email: marshall@bfolegal.com Attorneys for Defendant Lynn Duggan Email: emilee@bfolegal.com 12 Attorneys for Defendant Duggan Family Limited 13 Partnership 14 Michael Schklovsky Anderson Zeigler, APC 15 50 Old Courthouse Square, 5th Fl. Santa Rosa, CA 95404 16 Email: mshklovsky@andersonzeigler.com 17 Attorneys for Defendant Kelly Moffat 18 19 (BY ELECTRONIC MAIL) On the below date, I transmitted the foregoing document(s) by electronic mail, and the 20 transmission was reported as complete and without error. This method of service was made pursuant to an agreement entered by and between counsel. 21 22 (STATE) I declare under penalty of perjury under the laws of the State of California that the 23 foregoing is true and correct. 24 Executed on January 25, 2024, at Los Angeles, California. 25 26 /s/ Haleh Sharifi 27 Haleh Sharifi 28 6 [PROPOSED] ORDER ACTIVE 692897032