Preview
1 John S. Rueppel (SBN: 267467)
Angie Lam (SBN: 244719)
2 JOHNSTON, KINNEY & ZULAICA LLP
101 Montgomery Street, Suite 1600
3 San Francisco, California 94104
4 Telephone: (415) 693-0550
Facsimile: (415) 693-0500
5 Email: john@jkzllp.com
angie.lam@jkzllp.com
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Attorneys for Plaintiff,
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Lisa Keith
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SUPERIOR COURT OF THE STATE OF CALIFORNIA
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IN THE COUNTY OF NAPA
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11 LISA KEITH, CASE NO: 22CV001269
12 Plaintiff, EX PARTE APPLICATION TO
13 CONTINUE HEARING ON
v. DEFENDANTS’ MOTION FOR
14 SUMMARY JUDGMENT/
CELESTE WHITE, an individual, ROBERT ADJUDICATION; MEMORANDUM OF
15 WHITE, an individual, the VALLEY ROCK POINTS AND AUTHORITIES IN
FOUNDATION, aka THE BAR 49 SUPPORT
16 FOUNDATION, a charitable organization, and
17 DOES 1-50, INCLUSIVE, Date: February 6, 2024
Time: 11:30 a.m.
18 Defendants. Judge: Hon. Scott R.L. Young
Dept.: B
19
Complaint Filed: October 25, 2022
20 FAC Filed: March 8, 2023
21 Trial Date: April 2, 2024
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I. INTRODUCTION
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24 Since September 13, 2023, Plaintiff Lisa Keith (“Plaintiff”) has been relentlessly pursuing efforts to
25 subpoena pertinent and necessary third parties to complete discovery. (Lam Declaration, ¶3.) After many
26 unsuccessful attempts to effectuate service on both Singer Associates, Inc. and Mr. Sam Singer, founder of
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the Singer Associates, Inc., a Deposition Subpoena for Production of Business Records (“Subpoena”) was
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finally served on its registered agent for service on December 27, 2023. (Lam Declaration, ¶4.)
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PLAINTIFF’S
f EX PARTE APPLICATION TO HEARING ON DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
Singer Associates Inc. published the “press releases” on behalf of the Defendants. Pursuant to the
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2 Subpoena, Singer Associates, Inc. was ordered to produce business records on January 24, 2024 at 10:00
3 am. On January 22, 2024, Plaintiff was notified by the legal department of Singer Associates, Inc. that the
4 business records would be released on the deposition date. On Wednesday, January 24, 2024, the day in
5 which the business records were to be produced, Plaintiff was informed that there were no updates from the
6 legal department of Singer Associates, Inc. On Monday, January 29, 2024, Plaintiff attempted to call the
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legal department of Singer Associates, Inc. and was unable to reach anyone and was also unable to leave a
8
voicemail. (Lam Declaration, ¶10.) How many public relations firms shut off their phones during
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business hours?
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As the Defendants Celeste White, Robert White, and Valley Rock Foundation (“Defendants”) filed
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12 and served their motion for summary judgment and/or adjudication (“MSJ”) on December 12, 2023, the
13 hearing for the MSJ is set for March 1, 2024. The last day for the Plaintiff to timely file her opposition is
14 February 16, 2024.
15 In addition, Plaintiff has subpoenaed other entities with involvement in the press releases, but
16 service has been inordinately difficult. Apparently fully functioning businesses with employees and offices
17
have become ghost towns. This has the appearance of a concerted effort to deprive Plaintiff of important
18
witnesses and discovery.
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Here, good cause exists to move the hearing date of Defendants’ MSJ as discovery delays and
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noncompliance with third party subpoenas, such as Singer Associates, Inc., have made it nearly impossible
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for the Plaintiff to complete discovery and prepare a proper opposition to Defendants’ MSJ. Accordingly,
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23 Plaintiff now moves the Court ex parte for an order to continue the MSJ hearing so that the Plaintiff can
24 complete discovery and prepare a proper opposition to Defendants’ MSJ.
25 //
26 //
27 //
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PLAINTIFF’S
f EX PARTE APPLICATION TO HEARING ON DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
1 II. ARGUMENT
2 A. Plaintiff’s Ex Parte Application to Continue MSJ Hearing is Proper.
3 In Hamilton v. Orange County Sheriff’s Department (2017) 8 Cal.App.5th 759, the court was
4 found to have abused its discretion by failing to accommodate a further 60-day continuance. In Hamilton,
5 a motion for summary judgment was filed on the next to the last possible date. The plaintiff then sought
6 to depose the witnesses who submitted declarations in conjunction with the summary judgment motion.
7 The depositions were noticed a month and a half prior to the opposition due date. The court determined
8 that these witnesses were “obviously essential to the motion” and further stated that “The application to
9 continue the motion to obtain necessary discovery may also be made by ex parte motion at any time on
10 or before the date the opposition response to the motion is due.” (Id at 766.) As the plaintiff in Hamilton
11 did not seek prior continuances, “Where denial of a continuance would result in manifest injustice, as it
12 did here, the policy disfavoring continuances must give way” because strong public policy favoring
13 disposition on the merits outweigh the competing policy favoring judicial efficiency.” (Id at 767.)
14 Similar to Hamilton, Defendants here filed their MSJ on the next to last possible date. Plaintiff
15 has been attempting to serve the Subpoena on Singer Associates Inc. since September of 2023. Although
16 Plaintiff eventually served the Subpoena, Singer Associates Inc. has not complied with the Subpoena.
17 Similar to Hamilton, Mr. Sam Singer, the founder of Singer Associates Inc., submitted a declaration in
18 conjunction with Defendants’ MSJ. Thus, as Hamilton demonstrates, Mr. Sam Singer is essential to the
19 motion and thus denial of Plaintiff’s continuance here would manifest injustice. Furthermore, Plaintiff
20 has not sought any prior continuances on the motion. In fact, upon ascertaining that Singer Associates,
21 Inc. has failed to produce business records, Plaintiff at the earliest opportunity, promptly filed her present
22 motion to move the court, out of necessity, to continue the hearing date of the impending motion to
23 compel hearing date.
24 Therefore, Plaintiff’s motion to continue the MSJ hearing is proper and must be granted.
25 B. The Code of Civil Procedure Mandates a Continuance of a Summary Judgment
26 Hearing Upon a Good Faith Showing that a Continuance is Necessary.
27 Code of Civil Procedure section 437c, subdivision (h) provides that “…facts essential to justify
28 opposition may exist but cannot, for reasons stated, then be presented, the court shall deny the motion or
3
PLAINTIFF’S
f EX PARTE APPLICATION TO HEARING ON DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
1 order a continuance to permit affidavits to be obtained or discovery to be had or may make any other
2 order as may be just.”
3 Subdivision (h) also provides that an application to continue the motion may be made by ex parte
4 motion at any time before the opposition to the motion is due. (Code Civ. Proc. § 437(c)(h).)
5 In Nazar, Jr. v. Rodefer (1986) 184 Cal.App.3d 546, 551, the plaintiff required additional
6 discovery to determine facts that were essential to justify their opposition to the motion for summary
7 judgment. The court in Nazar indicated that “Generally, power to determine when a continuance should
8 be granted is within the discretion of the court, and there is no right to a continuance as a matter of law.
9 [Citation.] However, Code of Civil Procedure section 437c mandates a continuance of a summary
10 judgment hearing upon a good faith showing by affidavit that a continuance is needed to obtain facts
11 essential to justify opposition to the motion.” The court in Nazar concluded that “…in order to abide by
12 the provisions of Code of Civil Procedure section 437c, subdivision (h) should have…granted a
13 reasonable continuance to enable plaintiff to depose the defendants or conduct other discovery, or made
14 some other just order.”
15 In applying Nazar to the present matter at hand, Plaintiff’s affirmative showing of good faith
16 mandates a continuance of a summary judgment hearing. The backbone of Defendants’ MSJ is
17 predicated on Defendants’ retaining of the public relations firm Singer Associates, Inc. and Mr. Sam
18 Singer’s supporting MSJ declaration indicates that he created a comprehensive public relations and
19 social media campaign that shapes the basis of this lawsuit and “recommended issuing a press release
20 that describe the Court’s approval of the Settlement Agreement that resolved that lawsuit.” (Decl.,
21 Singer, 3:24-26). These specific facts found in Mr. Sam Singer’s supporting MSJ declaration
22 demonstrate the existence of controverting evidence that could shed light and provide further information
23 that is essential for Plaintiff to determine the reach and the impact of Mr. Sam Singer’s dissemination of
24 the associated press releases, as well as the Defendants’ involvement in issuing the press releases that
25 are the subject of litigation at hand. Thus, the business records of Singer Associates, Inc., which Plaintiff
26 seeks, are necessary and essential for Plaintiff to properly oppose the MSJ. But Singer Associates, Inc.’s
27 noncompliance with the Subpoena places the Plaintiff in a position where she cannot obtain such
28 essential facts to timely justify her opposition to the MSJ. “To be entitled to a continuance, the party
4
PLAINTIFF’S
f EX PARTE APPLICATION TO HEARING ON DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
1 opposing the motion for summary judgment must show that its proposed discovery would have led to
2 ‘facts essential to justify opposition.’” (Scott v. Ciba Vision Corporation (1995) 38 Cal.App.4th 307,
3 326)
4 As previously stated, Plaintiff has been attempting service of a subpoena on Mr. Sam Singer, the
5 founder of Singer Associates, Inc. since September of 2023. Presumably, the Defendants are aware of
6 the Subpoena as notices to consumer which accompanies a subpoena, were served on the Defendants.
7 On the eve of the production due date, coincidentally, Plaintiff received Defendants’ untimely and
8 frivolous objection to the Subpoena. When Plaintiff attempted to contact the legal department of Singer
9 Associates, Inc., no contact or communication could be made. (Lam Declaration, ¶10.) Furthermore, as
10 Defendants are apparently not available for the Plaintiff to be deposed until February 15th and 16th, 2024,
11 the date in which Plaintiff’s opposition to the MSJ is due, Plaintiff is now left with no other choice but
12 to seek a continuance so that she will be able to obtain essential facts about Singer Associates Inc. directly
13 from the Defendants, whom hired Singer Associates, Inc., in order to justify her opposition to the MSJ.
14 Given Singer Associates’ disappearance, Plaintiff believes a motion to compel will be necessary to
15 obtain the required documents.
16 Thus, Plaintiff, as the nonmoving party seeking the continuance, has affirmatively shown the
17 following: (1) the business records of Singer Associates Inc. are essential to opposing the motion; (2)
18 there is a reason to believe such facts may exist because Mr. Sam Singer’s declaration in support of
19 Defendants’ MSJ identifies additional discovery that can likely uncover essential facts and evidence to
20 justify Plaintiff’s opposition to the MSJ; and (3) Singer Associates, Inc.’s noncompliance with a properly
21 served Subpoena results in Plaintifff’s need for additional time to obtain these essential facts. Plaintiff
22 has more than demonstrated good cause and good faith for the continuance and thus “…a request for a
23 continuance supported by a showing of good cause usually ought to be granted.” (Hernandez v. Superior
24 Court, supra, 115 Cal.App.4th at pp. 1246-1247.)
25 Furthermore, in Defendants’ own Memorandum of Points and Authorities in Support of
26 Defendants’ Motion to Extend Deadline for Hearing Defendants’ Motion for Summary
27 Judgment/Adjudication (“Defendants’ Motion to Extend Deadline”) which was filed on or about
28 November 29, 2023, Defendants stated “Good cause to continue the summary hearing date exists when
5
PLAINTIFF’S
f EX PARTE APPLICATION TO HEARING ON DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
1 discovery is ongoing and facts essential to a party’s motion or opposition have not yet been established.
2 (See Bahl v. Bank of America (2001) 89 Cal.App.4th 389, 392, 396 [continuance required under Code
3 of Civil Procedure section 437c(h) where party opposing summary judgment needed to complete
4 discovery to gather essential facts].) (Defs.’ Motion to Extend Deadline, 3:20-24 (November 29, 2023.)
5 “Summary judgment is a drastic procedure that should be used cautiously so that it does not become a
6 substitute for trial. (Id at 557.) Discovery is ongoing here and facts essential to Plaintiff’s opposition
7 have not yet been established. Mr. Sam Singer appears to be readily able to prepare and sign a declaration
8 in support of the MSJ, but yet has been avoiding Plaintiff’s service since September of 2023. Such
9 circumstances, which are beyond Plaintiff’s control, have essentially prevented her from completing her
10 opposition papers. Thus, continuing the hearing on the Motion for Summary Judgment will enable the
11 Plaintiff to depose the Defendants, to compel Singer Associates, Inc. to produce business records, to
12 complete, file and serve her opposition to the Motion for Summary Judgment. As the court in Denton v.
13 City and County of San Francisco (2017) 16 Cal.App.5th 779, 794 acknowledges “Almost all the
14 summary judgment-related continuance case deal with continuances to make discovery, continuances
15 provided for by the statute itself….Usually, the court’s discretion should be exercised in favor of granting
16 a continuance: “The interests at stake are too high to sanction the denial of a continuance without good
17 reason.”
18 As good faith exists for the Court to continue the hearing on Defendants’ Motion for Summary
19 Judgment/Adjudication, moving the hearing date will help prevent any unfair surprise caused by
20 Defendants in using their own summary judgment briefing and supporting declarations from third parties
21 who have avoided and/or delayed service and discovery. “As Witkin tersely summarizes it, discretion
22 “must be exercised with due regard to all interests involved, and the refusal of a continuance that has the
23 practical effect of denying the applicant a fair hearing is reversible error. [Citations.]” (7 Witkin, Cal.
24 Procedure (5th ed. 2008) Trial, §11, pg, 38.)
25 Given the likely need to compel the performance of Singer Associates, complete the depositions
26 of defendants and other pertinent witnesses, Plaintiff believes a ninety-day (90) continuance would be
27 sufficient.
28 //
6
PLAINTIFF’S
f EX PARTE APPLICATION TO HEARING ON DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
1 III. CONCLUSION
2 For the reasons detailed above, Plaintiff respectfully requests that the Court continue Defendant’s
3 hearing on the motion for summary judgment and/or adjudication from March 1, 2024 to June 7, 2024
4 in order to allow Plaintiff sufficient time to complete discovery and file her opposition.
5
6 JOHNSTON, KINNEY & ZULAICA LLP
7
8 Dated: February 5, 2024 By:
John S. Rueppel, Esq.
9 Angie Lam, Esq.
10 Attorneys for Plaintiff, Lisa Keith
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PLAINTIFF’S
f EX PARTE APPLICATION TO HEARING ON DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
1 PROOF OF SERVICE
2
STATE OF CALIFORNIA, CITY OF ANTIOCH AND COUNTY OF CONTRA COSTA
3
I am employed in the City and County of San Francisco, State of California. I am over the age of
4 18 years and not a party to the within action; my business address is Johnston Kinney & Zulaica LLP,
101 Montgomery Street, Suite 1600, San Francisco, California 94104. My electronic business address is
5 carolina@jkzllp.com.
6 5 2024, I served the foregoing document(s):
On February ___,
7
1. EX PARTE MOTION TO CONTINUE HEARING ON DEFENDANTS’ MOTION FOR
8 SUMMARY JUDGMENT/ ADJUDICATION; MEMORANDUM OF POINTS AND
AUTHORITIES IN SUPPORT
9
I served the documents on the person or persons listed below as follows:
10
11 Jeffrey E. Tsai
Kathleen S. Kizer
12 DLA PIPER LLP (US)
555 Mission Street, Suite 2400
13 San Francisco, CA 94105
Jeff.tsai@us.dlapiper.com
14 Katy.kizer@us.dlapiper.com
Attorneys for Defendants
15
[X] (BY EMAIL) Pursuant to Code of Civil Procedure section 1010.6, I caused the document(s) to
16 be electronically transmitted by me to the persons listed in the above email address(es). I did not receive
within a reasonable time after the transmission, any electronic message or other indication that the
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transmission was unsuccessful.
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I declare under penalty of perjury under the laws of the State of California that the foregoing is
19 true and correct.
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5 2024, at Antioch, California.
Executed on February ___,
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23 Carolina Ramos
4888-6569-2065, v. 8
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PLAINTIFF’S
f EX PARTE APPLICATION TO HEARING ON DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
Preview
1 John S. Rueppel (SBN: 267467) Angie Lam (SBN: 244719) 2 JOHNSTON, KINNEY & ZULAICA LLP 101 Montgomery Street, Suite 1600 3 San Francisco, California 94104 4 Telephone: (415) 693-0550 Facsimile: (415) 693-0500 5 Email: john@jkzllp.com angie.lam@jkzllp.com 6 Attorneys for Plaintiff, 7 Lisa Keith 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 IN THE COUNTY OF NAPA 10 11 LISA KEITH, CASE NO: 22CV001269 12 Plaintiff, EX PARTE APPLICATION TO 13 CONTINUE HEARING ON v. DEFENDANTS’ MOTION FOR 14 SUMMARY JUDGMENT/ CELESTE WHITE, an individual, ROBERT ADJUDICATION; MEMORANDUM OF 15 WHITE, an individual, the VALLEY ROCK POINTS AND AUTHORITIES IN FOUNDATION, aka THE BAR 49 SUPPORT 16 FOUNDATION, a charitable organization, and 17 DOES 1-50, INCLUSIVE, Date: February 6, 2024 Time: 11:30 a.m. 18 Defendants. Judge: Hon. Scott R.L. Young Dept.: B 19 Complaint Filed: October 25, 2022 20 FAC Filed: March 8, 2023 21 Trial Date: April 2, 2024 22 I. INTRODUCTION 23 24 Since September 13, 2023, Plaintiff Lisa Keith (“Plaintiff”) has been relentlessly pursuing efforts to 25 subpoena pertinent and necessary third parties to complete discovery. (Lam Declaration, ¶3.) After many 26 unsuccessful attempts to effectuate service on both Singer Associates, Inc. and Mr. Sam Singer, founder of 27 the Singer Associates, Inc., a Deposition Subpoena for Production of Business Records (“Subpoena”) was 28 finally served on its registered agent for service on December 27, 2023. (Lam Declaration, ¶4.) 1 PLAINTIFF’S f EX PARTE APPLICATION TO HEARING ON DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT Singer Associates Inc. published the “press releases” on behalf of the Defendants. Pursuant to the 1 2 Subpoena, Singer Associates, Inc. was ordered to produce business records on January 24, 2024 at 10:00 3 am. On January 22, 2024, Plaintiff was notified by the legal department of Singer Associates, Inc. that the 4 business records would be released on the deposition date. On Wednesday, January 24, 2024, the day in 5 which the business records were to be produced, Plaintiff was informed that there were no updates from the 6 legal department of Singer Associates, Inc. On Monday, January 29, 2024, Plaintiff attempted to call the 7 legal department of Singer Associates, Inc. and was unable to reach anyone and was also unable to leave a 8 voicemail. (Lam Declaration, ¶10.) How many public relations firms shut off their phones during 9 business hours? 10 As the Defendants Celeste White, Robert White, and Valley Rock Foundation (“Defendants”) filed 11 12 and served their motion for summary judgment and/or adjudication (“MSJ”) on December 12, 2023, the 13 hearing for the MSJ is set for March 1, 2024. The last day for the Plaintiff to timely file her opposition is 14 February 16, 2024. 15 In addition, Plaintiff has subpoenaed other entities with involvement in the press releases, but 16 service has been inordinately difficult. Apparently fully functioning businesses with employees and offices 17 have become ghost towns. This has the appearance of a concerted effort to deprive Plaintiff of important 18 witnesses and discovery. 19 Here, good cause exists to move the hearing date of Defendants’ MSJ as discovery delays and 20 noncompliance with third party subpoenas, such as Singer Associates, Inc., have made it nearly impossible 21 for the Plaintiff to complete discovery and prepare a proper opposition to Defendants’ MSJ. Accordingly, 22 23 Plaintiff now moves the Court ex parte for an order to continue the MSJ hearing so that the Plaintiff can 24 complete discovery and prepare a proper opposition to Defendants’ MSJ. 25 // 26 // 27 // 28 2 PLAINTIFF’S f EX PARTE APPLICATION TO HEARING ON DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT 1 II. ARGUMENT 2 A. Plaintiff’s Ex Parte Application to Continue MSJ Hearing is Proper. 3 In Hamilton v. Orange County Sheriff’s Department (2017) 8 Cal.App.5th 759, the court was 4 found to have abused its discretion by failing to accommodate a further 60-day continuance. In Hamilton, 5 a motion for summary judgment was filed on the next to the last possible date. The plaintiff then sought 6 to depose the witnesses who submitted declarations in conjunction with the summary judgment motion. 7 The depositions were noticed a month and a half prior to the opposition due date. The court determined 8 that these witnesses were “obviously essential to the motion” and further stated that “The application to 9 continue the motion to obtain necessary discovery may also be made by ex parte motion at any time on 10 or before the date the opposition response to the motion is due.” (Id at 766.) As the plaintiff in Hamilton 11 did not seek prior continuances, “Where denial of a continuance would result in manifest injustice, as it 12 did here, the policy disfavoring continuances must give way” because strong public policy favoring 13 disposition on the merits outweigh the competing policy favoring judicial efficiency.” (Id at 767.) 14 Similar to Hamilton, Defendants here filed their MSJ on the next to last possible date. Plaintiff 15 has been attempting to serve the Subpoena on Singer Associates Inc. since September of 2023. Although 16 Plaintiff eventually served the Subpoena, Singer Associates Inc. has not complied with the Subpoena. 17 Similar to Hamilton, Mr. Sam Singer, the founder of Singer Associates Inc., submitted a declaration in 18 conjunction with Defendants’ MSJ. Thus, as Hamilton demonstrates, Mr. Sam Singer is essential to the 19 motion and thus denial of Plaintiff’s continuance here would manifest injustice. Furthermore, Plaintiff 20 has not sought any prior continuances on the motion. In fact, upon ascertaining that Singer Associates, 21 Inc. has failed to produce business records, Plaintiff at the earliest opportunity, promptly filed her present 22 motion to move the court, out of necessity, to continue the hearing date of the impending motion to 23 compel hearing date. 24 Therefore, Plaintiff’s motion to continue the MSJ hearing is proper and must be granted. 25 B. The Code of Civil Procedure Mandates a Continuance of a Summary Judgment 26 Hearing Upon a Good Faith Showing that a Continuance is Necessary. 27 Code of Civil Procedure section 437c, subdivision (h) provides that “…facts essential to justify 28 opposition may exist but cannot, for reasons stated, then be presented, the court shall deny the motion or 3 PLAINTIFF’S f EX PARTE APPLICATION TO HEARING ON DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT 1 order a continuance to permit affidavits to be obtained or discovery to be had or may make any other 2 order as may be just.” 3 Subdivision (h) also provides that an application to continue the motion may be made by ex parte 4 motion at any time before the opposition to the motion is due. (Code Civ. Proc. § 437(c)(h).) 5 In Nazar, Jr. v. Rodefer (1986) 184 Cal.App.3d 546, 551, the plaintiff required additional 6 discovery to determine facts that were essential to justify their opposition to the motion for summary 7 judgment. The court in Nazar indicated that “Generally, power to determine when a continuance should 8 be granted is within the discretion of the court, and there is no right to a continuance as a matter of law. 9 [Citation.] However, Code of Civil Procedure section 437c mandates a continuance of a summary 10 judgment hearing upon a good faith showing by affidavit that a continuance is needed to obtain facts 11 essential to justify opposition to the motion.” The court in Nazar concluded that “…in order to abide by 12 the provisions of Code of Civil Procedure section 437c, subdivision (h) should have…granted a 13 reasonable continuance to enable plaintiff to depose the defendants or conduct other discovery, or made 14 some other just order.” 15 In applying Nazar to the present matter at hand, Plaintiff’s affirmative showing of good faith 16 mandates a continuance of a summary judgment hearing. The backbone of Defendants’ MSJ is 17 predicated on Defendants’ retaining of the public relations firm Singer Associates, Inc. and Mr. Sam 18 Singer’s supporting MSJ declaration indicates that he created a comprehensive public relations and 19 social media campaign that shapes the basis of this lawsuit and “recommended issuing a press release 20 that describe the Court’s approval of the Settlement Agreement that resolved that lawsuit.” (Decl., 21 Singer, 3:24-26). These specific facts found in Mr. Sam Singer’s supporting MSJ declaration 22 demonstrate the existence of controverting evidence that could shed light and provide further information 23 that is essential for Plaintiff to determine the reach and the impact of Mr. Sam Singer’s dissemination of 24 the associated press releases, as well as the Defendants’ involvement in issuing the press releases that 25 are the subject of litigation at hand. Thus, the business records of Singer Associates, Inc., which Plaintiff 26 seeks, are necessary and essential for Plaintiff to properly oppose the MSJ. But Singer Associates, Inc.’s 27 noncompliance with the Subpoena places the Plaintiff in a position where she cannot obtain such 28 essential facts to timely justify her opposition to the MSJ. “To be entitled to a continuance, the party 4 PLAINTIFF’S f EX PARTE APPLICATION TO HEARING ON DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT 1 opposing the motion for summary judgment must show that its proposed discovery would have led to 2 ‘facts essential to justify opposition.’” (Scott v. Ciba Vision Corporation (1995) 38 Cal.App.4th 307, 3 326) 4 As previously stated, Plaintiff has been attempting service of a subpoena on Mr. Sam Singer, the 5 founder of Singer Associates, Inc. since September of 2023. Presumably, the Defendants are aware of 6 the Subpoena as notices to consumer which accompanies a subpoena, were served on the Defendants. 7 On the eve of the production due date, coincidentally, Plaintiff received Defendants’ untimely and 8 frivolous objection to the Subpoena. When Plaintiff attempted to contact the legal department of Singer 9 Associates, Inc., no contact or communication could be made. (Lam Declaration, ¶10.) Furthermore, as 10 Defendants are apparently not available for the Plaintiff to be deposed until February 15th and 16th, 2024, 11 the date in which Plaintiff’s opposition to the MSJ is due, Plaintiff is now left with no other choice but 12 to seek a continuance so that she will be able to obtain essential facts about Singer Associates Inc. directly 13 from the Defendants, whom hired Singer Associates, Inc., in order to justify her opposition to the MSJ. 14 Given Singer Associates’ disappearance, Plaintiff believes a motion to compel will be necessary to 15 obtain the required documents. 16 Thus, Plaintiff, as the nonmoving party seeking the continuance, has affirmatively shown the 17 following: (1) the business records of Singer Associates Inc. are essential to opposing the motion; (2) 18 there is a reason to believe such facts may exist because Mr. Sam Singer’s declaration in support of 19 Defendants’ MSJ identifies additional discovery that can likely uncover essential facts and evidence to 20 justify Plaintiff’s opposition to the MSJ; and (3) Singer Associates, Inc.’s noncompliance with a properly 21 served Subpoena results in Plaintifff’s need for additional time to obtain these essential facts. Plaintiff 22 has more than demonstrated good cause and good faith for the continuance and thus “…a request for a 23 continuance supported by a showing of good cause usually ought to be granted.” (Hernandez v. Superior 24 Court, supra, 115 Cal.App.4th at pp. 1246-1247.) 25 Furthermore, in Defendants’ own Memorandum of Points and Authorities in Support of 26 Defendants’ Motion to Extend Deadline for Hearing Defendants’ Motion for Summary 27 Judgment/Adjudication (“Defendants’ Motion to Extend Deadline”) which was filed on or about 28 November 29, 2023, Defendants stated “Good cause to continue the summary hearing date exists when 5 PLAINTIFF’S f EX PARTE APPLICATION TO HEARING ON DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT 1 discovery is ongoing and facts essential to a party’s motion or opposition have not yet been established. 2 (See Bahl v. Bank of America (2001) 89 Cal.App.4th 389, 392, 396 [continuance required under Code 3 of Civil Procedure section 437c(h) where party opposing summary judgment needed to complete 4 discovery to gather essential facts].) (Defs.’ Motion to Extend Deadline, 3:20-24 (November 29, 2023.) 5 “Summary judgment is a drastic procedure that should be used cautiously so that it does not become a 6 substitute for trial. (Id at 557.) Discovery is ongoing here and facts essential to Plaintiff’s opposition 7 have not yet been established. Mr. Sam Singer appears to be readily able to prepare and sign a declaration 8 in support of the MSJ, but yet has been avoiding Plaintiff’s service since September of 2023. Such 9 circumstances, which are beyond Plaintiff’s control, have essentially prevented her from completing her 10 opposition papers. Thus, continuing the hearing on the Motion for Summary Judgment will enable the 11 Plaintiff to depose the Defendants, to compel Singer Associates, Inc. to produce business records, to 12 complete, file and serve her opposition to the Motion for Summary Judgment. As the court in Denton v. 13 City and County of San Francisco (2017) 16 Cal.App.5th 779, 794 acknowledges “Almost all the 14 summary judgment-related continuance case deal with continuances to make discovery, continuances 15 provided for by the statute itself….Usually, the court’s discretion should be exercised in favor of granting 16 a continuance: “The interests at stake are too high to sanction the denial of a continuance without good 17 reason.” 18 As good faith exists for the Court to continue the hearing on Defendants’ Motion for Summary 19 Judgment/Adjudication, moving the hearing date will help prevent any unfair surprise caused by 20 Defendants in using their own summary judgment briefing and supporting declarations from third parties 21 who have avoided and/or delayed service and discovery. “As Witkin tersely summarizes it, discretion 22 “must be exercised with due regard to all interests involved, and the refusal of a continuance that has the 23 practical effect of denying the applicant a fair hearing is reversible error. [Citations.]” (7 Witkin, Cal. 24 Procedure (5th ed. 2008) Trial, §11, pg, 38.) 25 Given the likely need to compel the performance of Singer Associates, complete the depositions 26 of defendants and other pertinent witnesses, Plaintiff believes a ninety-day (90) continuance would be 27 sufficient. 28 // 6 PLAINTIFF’S f EX PARTE APPLICATION TO HEARING ON DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT 1 III. CONCLUSION 2 For the reasons detailed above, Plaintiff respectfully requests that the Court continue Defendant’s 3 hearing on the motion for summary judgment and/or adjudication from March 1, 2024 to June 7, 2024 4 in order to allow Plaintiff sufficient time to complete discovery and file her opposition. 5 6 JOHNSTON, KINNEY & ZULAICA LLP 7 8 Dated: February 5, 2024 By: John S. Rueppel, Esq. 9 Angie Lam, Esq. 10 Attorneys for Plaintiff, Lisa Keith 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7 PLAINTIFF’S f EX PARTE APPLICATION TO HEARING ON DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT 1 PROOF OF SERVICE 2 STATE OF CALIFORNIA, CITY OF ANTIOCH AND COUNTY OF CONTRA COSTA 3 I am employed in the City and County of San Francisco, State of California. I am over the age of 4 18 years and not a party to the within action; my business address is Johnston Kinney & Zulaica LLP, 101 Montgomery Street, Suite 1600, San Francisco, California 94104. My electronic business address is 5 carolina@jkzllp.com. 6 5 2024, I served the foregoing document(s): On February ___, 7 1. EX PARTE MOTION TO CONTINUE HEARING ON DEFENDANTS’ MOTION FOR 8 SUMMARY JUDGMENT/ ADJUDICATION; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT 9 I served the documents on the person or persons listed below as follows: 10 11 Jeffrey E. Tsai Kathleen S. Kizer 12 DLA PIPER LLP (US) 555 Mission Street, Suite 2400 13 San Francisco, CA 94105 Jeff.tsai@us.dlapiper.com 14 Katy.kizer@us.dlapiper.com Attorneys for Defendants 15 [X] (BY EMAIL) Pursuant to Code of Civil Procedure section 1010.6, I caused the document(s) to 16 be electronically transmitted by me to the persons listed in the above email address(es). I did not receive within a reasonable time after the transmission, any electronic message or other indication that the 17 transmission was unsuccessful. 18 I declare under penalty of perjury under the laws of the State of California that the foregoing is 19 true and correct. 20 5 2024, at Antioch, California. Executed on February ___, 21 22 23 Carolina Ramos 4888-6569-2065, v. 8 24 25 26 27 28 8 PLAINTIFF’S f EX PARTE APPLICATION TO HEARING ON DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT