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Justin P. Rodriguez, Esq. [SBN 271072]
LAW OFFICES OF JUSTIN PAUL RODRIGUEZ
106% Judge John Aiso St., #412
Los Angeles, CA 90012
(213) 280-8908
Attorney for Plaintiff and Cross-Defendant,
PRIMAVERA JAUREGUI
THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF KERN-METROPOLITAN DIVISION
UNLIMITED JURISDICTION
10
11 PRIMAVERA JAUREGUI ) CASE NO: BCV-21-102071
12 Plaintiff, } PRIMAVERA JAUREGUI’S NOTICE OF
) EX PARTE APPLICATION AND
13 VS.
) APPLICATION FOR ORDERS
CONTINUING MARCH 4, 2024 TRIAL
14 ) AND 30-DAY DISCOVERY CUT-OFF 120
) DAYS DUE TO CONTRERAS FEBRUARY
15 JAIME DAVILA CONTRERAS, and
DOES 1-10, inclusive ) 2, 2024 THREAT TO FILE U.S.
16 ) BANKRUPTCY IF MARCH 4, 2024 TRIAL
Defendants. ) PROCEEDS AFTER HE DISCHARGED HIS
17 COUNSEL, JEREMY D. SWANSON, ESQ.,
JAIME DAVILA CONTRERAS, )
18 ) DECLARATION OF JUSTIN P.
Cross-Complainant,
19 ) RODRIGUEZ RE: NOTICE, GOOD
) CAUSE, IRREPERABLE HARM AND OR
20 ) ANY OTHER STATUTORY BASIS FOR
VS.
) GRANTING RELIEF EX PARTE
21 ) POINTS AND AUTHORITES, AND,
DECLARATIONS OF DAN E.
22 PRIMAVERA JAUREGUI, FLEISCHMAN AND PRIMAVERA
) JAUREGUI AND IN SUPPORT THEREOF
23 Cross-Defendant
) SEPARATE [PROPOSED] ORDER
24 LODGED CONCURRENTLY
25
) Ex Parte Hearing Information:
26
) Date: February 9, 2024
27 ) Time: 8:30 a.m.
28 PRIMAVERA JAUREGUI’S EX PARTE APPLICATION FOR ORDERS CONTINUING
MARCH 4, 2024 TRIAL AND EXTENDING 30-DAY DISCOVERY CUT-OFF 120 DAYS
) Dept.: 17, (661) 868-7204
Judge: Hon. Thomas S. Clark
1415 Truxtun
) Bakersfield, CA 93301
)
TO EACH PARTY AND TO THE COUNSEL OF RECORD FOR EACH PARTY:
YOU ARE HEREBY NOTIFIED THAT for the convenience and efficiency of the
court and parties on February 9, 2024 at 8:30 a.m. in Department 17 of this Court located at 1415)
Truxtun, Bakersfield, CA 93301, plaintiff and cross-defendant, PRIMAVERA JAUREGUI,
hereafter, (“PRIMAVERA”) will apply ex parte to the Court for orders continuing the March 4,
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2024 trial and extending the (30) day discovery cut-off before trial one hundred and twenty (120)}
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days to allow PRIMAVERA to depose CONTRERA about his financial position and prepare
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for trial after receiving defendant and cross-complainant’s JAIME DAVILA CONTRERAS,
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14 hereafter, “CONTRERAS” Friday, February 2, 2024 in pro per MSC "! oral threat to file
15 bankruptcy if the March 4, 2024 trial goes forward.
16 The application is made on the further ground that the MSC Judge told PRIMAVERA’S
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counsel, Justin P. Rodriguez, Esq. that he had no jurisdiction to consider PRIMAVERA’S oral
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motion to continue the March 4, 2024 trial as a MSC judge.
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Moreover, any fraudulent bankruptcy or bankruptcy discharge that CONTRERAS’
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threatened to complete on or before March 4, 2024 after his attorney, Jeremy D. Swanson, Esq.
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22 was terminated places PRIMAVERA’S in reasonable fear that CONTRERAS would wrongfully
23 obstruct or defeat PRIMAVERA’S primary right to recover and substantially erode the value of
24
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' On or about January 4, 2024, CONTRERAS’S counsel, Jeremy D. Swanson again moved to be
26 Relieved as Contreras’ Counsel, set for January 30, 2024 hearing. Evidently, Mr. Swanson again
withdrew his motion and Mr. Contreras substituted is as his own counsel, appearing in pro per at the
27 February 2, 2024 MSC. (Decl. of Justin P. Rodriguez, q41)
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28 PRIMAVERA JAUREGUI’S EX PARTE APPLICATION FOR ORDERS CONTINUING
MARCH 4, 2024 TRIAL AND EXTENDING 30-DAY DISCOVERY CUT-OFF 120 DAYS
PRIMAVERA’S ¥% share of the real property located at 7708 Bonanza Dr., Bakersfield, CA
93307, where CONTRERAS currently lives after leaving (the creditor) PRIMAVERA at the
alter.
The emergency application is made on the further grounds that these surprising facts
place PRIMAVERA in reasonable fear of further possible fraud and being abusively forced to
enter a federal venue to expend precious resources to rightfully seek to set aside or move for
relief under the Uniform Fraudulent Transfer Act (UFTA) to recover her rightful share of the reall
property before having to go to state court trial and risk receiving nothing. (See Mid-Tech
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Consulting, Inc. v. Swendra (8th Cir. 1991) 938 F.2d 885, 888.)
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Said motion will be made on the further grounds that CONTRERAS’ recent threat to file
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bankruptcy suggesting purported insolvency are relevant to the subject matter of this action, do
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14 not relate to privileged matters and that any abrupt bankruptcy will almost certainly place
15 potentially illegal and fraudulent obstacles designed solely to abusively obstruct and prevent
16 PRIMAVERA from receiving her fair share of the real property located at 7708 Bonanza Dr.,
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Bakersfield, CA 93307 and is without substantial or any reasonable justification, whatsoever.
18
(See 11 USCA § 548-Section 548 designed to invalidate transactions that unfairly diminish the
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debtor’s assets available to pay creditors. (Bonded Fin'l Services, Inc. v. European American
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21 Bank (7th Cir. 1988) 838 F.2d 890, 892; In re First Alliance Mortg. Co. (9th Cir. 2006) 471 F.3d
22 977, 1008- purpose of fraudulent transfer law is “to protect creditors from last-minute
23 diminutions in the pool of assets in which they have interests.”)
24
This motion is based on this application, the memorandum of points and
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authorities filed herewith, declarations of Justin Rodriguez, Dan E. Fleischman and Primavera
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Jauregui, oral and documentary evidence that may be presented at the hearing of the application
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28 PRIMAVERA JAUREGUI’S EX PARTE APPLICATION FOR ORDERS CONTINUING
MARCH 4, 2024 TRIAL AND EXTENDING 30-DAY DISCOVERY CUT-OFF 120 DAYS
and the pleadings, records and papers filed herein.
DATED: February 7, 2024
Just P. Rodriguez.
JUSTIN. P. RODRIGUEZ, Attorney for Plaintiff and Cross-Defendant
Primavera Jauregui
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28 PRIMAVERA JAUREGUI’S EX PARTE APPLICATION FOR ORDERS CONTINUING
MARCH 4, 2024 TRIAL AND EXTENDING 30-DAY DISCOVERY CUT-OFF 120 DAYS
TABLE OF CONTENTS Page(s)
Topic
POINTS AND AUTHORITIES
DECLARATION OF JUSTIN P. RODRIGUEZ NOTICE, GOOD CAUSE,
IRREPERABLE HARM OR ANY OTHER STATUTORY BASIS FOR
GRANTING RELIEF EX PARTE. 13
DECLARATION OF JUSTIN P. RODRIGUEZ 16
DECLARATION OF DAN E. FLEISCHMAN 23
DECLARATION OF PRIMAVERA JAUREGUI 24
10 PROOF OF SERVICE. 7 26
11
SERVICE LIST 27
12
TABLE OF AUTHORITIES
13
Statutes, Rules, Legislative Materials
14
15
11 USCA § 548. UL
16
Uniform Fraudulent Transfer Act. 11
17
Ca Rules of Court Rule 3.1332(b). 11
18
19 Code of Civil Procedure § 998 11
20 Treatises and Other Materials
21 Cases
22 Adimay vy. Ruhl (2008)
23 160 Cal.App.4"" 583,72 Cal.Rptr 926
24 Bonded Fin'l Services, Inc. v. European American Bank (7th Cir. 1988)
838 F.2d 890, 892. 111
25
26
27
28 PRIMAVERA JAUREGUI’S EX PARTE APPLICATION FOR ORDERS CONTINUING
MARCH 4, 2024 TRIAL AND EXTENDING 30-DAY DISCOVERY CUT-OFF 120 DAYS
Page(s)
Brown v. Presley of Southern Calif. (1989)
213 Cal.App.3d 612, 620, 261 Cal.Rptr. 779, 784 & fit. 3..ccccssssesssseee
Byrne v. Laura (1997)
52 Cal.App.4th 1054, 1073, 60 Cal.Rptr.2d 908, 920.
Cochran v. Cochran (1997)
56 Cal.App.4th 1115, 1118, 66 Cal.Rptr.2d 337, 339
Friedman v. Friedman (1993)
20 Cal.App. 4th 876, 887-888, 24 Cal.Rptr.2d 892, 899
Inre First Alliance Mortg. Co. (9th Cir. 2006)
471 F.3d 977, 1008.. AL
10
11 Lasalle v. Vogel (2019)
36 CASth 127, 135, 248 Cal.Rptr.3d 263, 268
12
Maglica v. Maglica (1998)
13 66 Cal.App.4th 442, 449, 78 Cal.Rptr.2d 101, 104
14
Marvin v. Marvin (1976)
15 18 Cal.3d 660, 679-681, 134 Cal.Rptr. 815, 828-829.
16 Mid-Tech Consulting, Inc. v. Swendra (8th Cir. 1991)
938 F.2d 885, 888 AL
17
18 Moghaddam v. Bone (2006)
142 Cal.App.4th 283, 288, 47 Cal.Rptr.3d 602, 606
19
Reales Investment, LLC v. Johnson (2020)
20 55 CASth 463..469, 269 Cal.Rptr.3d at 530 11
21
Sass v. Cohen (2020)
22 10 C5th 861, 885-886, 272 Cal.Rptr.3d 836, 856 2,3
23 Velez v. Smith (2006)
142 Cal.App.4th 1154, 1175-1176, 48 Cal.Rptr.3d 642, 658-659... 2,3
24
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26 HW
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28 PRIMAVERA JAUREGUI’S EX PARTE APPLICATION FOR ORDERS CONTINUING
MARCH 4, 2024 TRIAL AND EXTENDING 30-DAY DISCOVERY CUT-OFF 120 DAYS
POINTS AND AUTHORITIES IN SUPPORT OF PRIMAVERA JAUREGUI’S
EX PARTE APPLICATION FOR CONTINUANCE AND EXTENSION OF MARCH 4
2024 TRIAL AND 30-DAY DISCOVERY CUT-OFF
On September 2, 2021 PRIMAVERA’S filed her initial complaint through her first
counsel, Elizabeth Yang, Esq. (Decl. of Justin P. Rodriguez, 1.)
On January 14, 2022 CONTRERAS demurred to PRIMAVERA’S complaint. (Decl. of
Justin P. Rodriguez, 2.)
On January 24, 2022, defendant CONTRERAS filed a cross-complaint against
PRIMAVERA. (Decl. of Justin P. Rodriguez, 3.)
On April 18, 2022, Ms. Yang filed PRIMAVERA’S Second Amended Complaint (SAC).
10 for Breach of Contract, Intentional/Negligent Misrepresentation, Quantum Meruit, Constructive
11 Trust and Declaratory Relief. (Emphasis added.)(Decl. of Justin P. Rodriguez, 4.)
12 PRIMAVERA’S PLAN TO OBTAIN NEW COUNSEL
13 At an April 29, 2022 Case Management Conference, PRIMAVERA appeared without
14 counsel to notify the court with Jeremy D. Swanson present about “... her plan is to retain new
13. counsel.” (Decl. of PRIMAVERA, 4 1.)@ecl. of Justin P. Rodriguez, 5.)
16 The court then immediately scheduled a July 28, 2022 Further Case Management
17 Conference “Re: Plaintiff to Retain new counsel” “continued from April 29, 2022. (Decl. of
18 PRIMAVERA, § 1.) (Decl. of Justin P. Rodriguez, 6.) (See Register of Actions, Case No. BCV-
19 21-102071, scheduled Hearings Further Case Management Conference (07/28/2022 at 8:15
20 AM...”.)
21 ELIZABETH YANG’S SUBSTITUTION OF ATTORNEY
22 A month later on or about May 19, 2022, Ms. Yang formally filed a Substitution of
23 Attorney, which Ms. Yang served that day to Mr. Contreras’s attorney, Jeremy D. Swanson, Esq.
24 (Decl. of Justin P. Rodriguez, 7.) Thus, by operation of law, PRIMAVERA became her own
25 attorney of record, in pro per. (Decl. of Justin P. Rodriguez, 8.)
26 On May 26, ans Mr. Swanson filed CONTRERAS’ Answer to Ms. Yang’s April 18,
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28 PRIMAVERA JAUREGUI’S EX PARTE APPLICATION FOR ORDERS CONTINUING
MARCH 4, 2024 TRIAL AND EXTENDING 30-DAY DISCOVERY CUT-OFF 120 DAYS
2022 SAC, which PRIMAVERA never received. (Decl. of Justin P. Rodriguez, 9.) (Decl. of
PRIMAVERA, § 2.)
MR. SWANSON’S FIRST ATTEMPT TO REQUEST
PRIMAVERA’S DEFAULT WITHOUT NOTICE
Three days later on May 31, 2022 and unbeknownst to PRIMAVERA or Mr. Rodriguez,
Mr. Swanson sought to thwart PRIMAVERA’S effort to seek a fair and reasonable settlement of
her legitimate rights and obligations arising from her relationship with CONTRERAS, which can|
be properly adjudicated in her general civil action.”! (Marvin v. Marvin (1976) 18 Cal.3d 660,
10 ? The fact of nonmarital cohabitation is not itself a barrier to the judicial recognition and enforcement of
express and implied agreements between the parties. They have the same right to enforce contracts and
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assert equitable rights and interests as do any other unmarried persons. And courts may also look to a
12 “variety of other remedies in order to protect the parties” lawful expectations. (Marvin v. Marvin
(1976) 18 Cal.3d 660, 684, 134 Cal.Rptr. 815, 831 & fn. 24.) Thus, unmarried cohabitants can avail
13 themselves of the following traditional legal and equitable remedies to enforce properly-founded
property, support and other financial claims and obligations arising out of their relationship: Action
14 for breach of express contract (e.g., to pool earnings and hold acquisitions in accord with community
property law, or to hold earnings and acquisitions as separate property; to provide support, etc.).
15 (Marvin v. Marvin (1976) 18 Cal.3d 660, 674-675, 134 Cal.Rptr. 815, 825; see Cochran v. Cochran
(1997) 56 Cal.App.4th 1115, 1118, 66 Cal.Rptr.2d 337, 339-alleged agreement to share property
16 acquisitions equally and to provide “lifetime support”; Action on an implied contract based upon the
parties’ conduct (e.g., to share earnings and acquisitions or to provide support). (Marvin v. Marvin,
17 supra, 18 Cal.3d at 677-684, 134 Cal.Rptr. at 827-831; see Friedman v. Friedman (1993) 20 Cal.App.
4th 876, 887-888, 24 Cal.Rptr.2d 892, 899-alleged implied agreement for support upon termination of
18 relationship; Action to enforce a partnership or joint venture agreement (express or implied). (Marvin v.
Marvin, supra, 18 Cal.3d at 684, 134 Cal.Rptr. at 831; Action to impose a constructive trust, resulting
19 trust or equitable lien. (Marvin v. Marvin, supra, 18 Cal.3d at 684, 134 Cal.Rptr. at 831; Action for
20 declaratory relief to establish rights under a cohabitation agreement. (Marvin v. Marvin, supra, 18 Cal.3d]
at 675, 134 Cal.Rptr. at 825; see Byrne v. Laura (1997) 52 Cal.App.4th 1054, 1073, 60 Cal.Rptr.2d 908,
21 920; Action for specific performance of a property agreement (where damages are not an adequate
remedy; e.g., real property (Ca Civil § 3387) or personal property with sentimental value (Rest.2d
22 Contracts § 360, comm:. 'b')). (See Byrne v. Laura, supra, 52 Cal.App.4th at 1073, 60 Cal.Rptr.2d at 920
-Marvin claimant could properly elect to pursue specific performance of property agreement with
23 respect to residence and family heirlooms; Action in quantum meruit to recover the reasonable value of
services rendered (household, business or other legally-compensable services), less the reasonable value
24 of support received, upon proof the services were rendered 'with the expectation of monetary reward."
(Marvin v. Marvin, supra, 18 Cal.3d at 684, 134 Cal.Rptr. at 831-832; see Maglica v. Maglica (1998) 66
25 Cal.App.4th 442, 449, 78 Cal.Rptr.2d 101, 104.)
26
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28 PRIMAVERA JAUREGUI’S EX PARTE APPLICATION FOR ORDERS CONTINUING
MARCH 4, 2024 TRIAL AND EXTENDING 30-DAY DISCOVERY CUT-OFF 120 DAYS
679-681, 134 Cal.Rptr. 815, 828-829 & fs. 17, 18 & 19; see also Sass v. Cohen (2020) 10 CSth
861, 885-886, 272 Cal.Rptr.3d 836, 856 (12:5.7); Velez v. Smith (2006) 142 Cal.App.4th 1154,
1175-1176, 48 Cal.Rptr.3d 642, 658-659.)
To deceptively seek PRIMAVERA’S Default judgment on Contreras’ retaliatory January
24, 2022 Cross-Complaint, Mr. Swanson never properly served PRIMAVERA the Cross-
Complaint or dated the attached Proof of Service. (Decl. of Justin P. Rodriguez,{ 10.) (Decl. of
PRIMAVERA, { 3.) (See Mr. Swanson’s May 31, 2022 Request for Entry of Default, Register off
Actions.)
10
Moreover, Mr. Swanson never warned or mentioned to PRIMAVERA, her prior counsel,
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Ms. Yang, or Mr. Rodriguez that he was planning to take PRIMAVERA’S default. 5! (Decl. of
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PRIMAVERA, { 4.)
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Still, the clerk refused to enter PRIMAVERA’S default: Mr. Swanson’s rush for a
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windfall evidently caused him to hastily misspell his own client’s name! “1b Party does not
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conform to the Cross-Complaint.” e.g. “Drivila” should be “Davila” (See ROA 5/31/22 entry.)
16
17 PRIMAVERA RETAINS JUSTIN P. RODRIGUEZ, ESQ.
18 On Tuesday, May 31, 2022, Mr. Rodriguez’ initial letter to Mr. Swanson stated,
19 in pertinent part,
20 “ We’ve just been retained to represent Ms. Primavera Jauregui. ..., we
would appreciate a 60-day extension to respond to your Cross-Complaint
21 while suggesting we try to reach a reasonable settlement before the July
28, 2022 Further Case Management Conference.” (See EXHIBIT A, a true and
22 correct copy of Mr. Rodriguez’ May 31, 2022 letter to Mr. Swanson attached
hereto and incorporated by this reference as though fully set forth here.)
23
(Decl. of Justin P. Rodriguez, 11, referring to Mr. Rodriguez’ May 31, 2022
24
25 3 All attorneys have an ethical obligation to warn opposing counsel that the attorney is about to take an
adversary’s default. (See Lasalle v. Vogel (2019) 36 CASth 127, 135, 248 Cal.Rptr.3d 263, 268;
26 Brown v. Presley of Southern Calif. (1989) 213 Cal.App.3d 612, 620, 261 Cal.Rptr. 779, 784 & fn. 3.)
27
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28 PRIMAVERA JAUREGUI’S EX PARTE APPLICATION FOR ORDERS CONTINUING
MARCH 4, 2024 “RIAL AND EXTENDING 30-DAY DISCOVERY CUT-OFF 120 DAYS
letter.)
Mr. Swanson didn’t respond. (Decl. of Justin P. Rodriguez, 12.)
Mr. Rodriguez then called Mr. Swanson’s office several times and spoke to Elisa to have
Mr. Swanson call. (Decl. of Justin P. Rodriguez, 13.)
Mr. Swanson never called back. (Decl. of Justin P. Rodriguez, 14.)
MR. SWANSON’S SECOND ATTEMPT TO REQUEST
PRIMAVERA’S DEFAULT WITHOUT NOTICE
Instead, and again unbeknownst to PRIMAVERA or Mr. Rodriguez, on Thursday, June 2,
2022 Mr. Swanson filed a second Request for PRIMAVERA’S Entry of Default to Contreras
10 January 24, 2022 Cross-Complaint! (Decl. of PRIMAVERA, § 5.) (Decl. of Justin P.
11 Rodriguez, 15.) (ROA) Register of Actions, June 2, 2022 Request for Entry of Default.)
12 Once more, Mr. Swanson never properly served PRIMAVERA or Mr. Rodriguez and
13 failed to date the attached Proof of Service.
14 This time the clerk entered default at “5:00 PM” on June 2, 2022. (Decl. of Justin P.
15 Rodriguez,{ 16.)
16 Mr. Swanson never returned Mr. Rodriguez’ calls nor sent either default request to
17 Mr. Rodriguez’s service address. (Decl. of Justin P. Rodriguez,{ 16.)
18 In the meantime, Mr. Rodriguez had to wait while PRIMAVERA retrieved important file
19 information/copies from her former attorney, Elizabeth Yang., who held up turning the
20 documents over. (Decl. of PRIMAVERA, § 6.) (Decl. of Justin P. Rodriguez, § 17.)
21 MR. RODRIGUEZ’ PRE-SCHEDULED JULY 26, 2022 VACATION
22 Before accepting this case, Mr. Rodriguez pre-booked and paid for a week out of
23 town week vacation with his wife and children. (Decl. of Justin P. Rodriguez, { 18.)
24 Unfortunately,‘only later Mr. Rodriguez’ realized his trip conflicted with this court’s July
25 28, 2022 continued Case Management Conference (CMC), which was scheduled by the court on
26 April 29, 2022 when PRIMAVERA appeared without counsel to advise the court (and Mr.
27 Swanson) about“... her plan is to retain new counsel.” (See Register of Actions, 4/29/22-
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28 PRIMAVERA JAUREGUI’S EX PARTE APPLICATION FOR ORDERS CONTINUING
MARCH 4, 2024 TRIAL AND EXTENDING 30-DAY DISCOVERY CUT-OFF 120 DAYS
“Scheduled Hearings —Further Case Management Conference (07/28/2022 at 8:15 AM...”,CMC
set by the Court on April 29, 2022 “re: Plaintiff to retain new counsel.”
MR. RODRIGUEZ’ AND DAN E. FLEISCHMAN’S FURTHER
ATTEMPTS TO CONTACT MR. SWANSON
On June 2, 2022, CONTRERAS’ counsel, Mr. Swanson, unethically requested to enter
default against PRIMAVERA, who was in pro per and without counsel, without warning or
noticing PRIMAVERA so the clerk entered default on June 2, 2022.
Still unaware of Mr. Swanson’s attempts to obtain PRIMAVERA’S default and June 2,
2022 clerk’s entry, Mr. Rodriguez mailed and faxed a July 13, 2022 letter to Mr. Swanson
10 requesting, in pertinent part,
11 “T tried to reach you today since I never received a response to the enclosed May
12 31, 2022 letter we mailed requesting a 60-day extension to respond to your
January 24, 2022 Cross-Complaint.
13 Today, your paralegal said she never received my letter; therefore, please
immediately forward a copy of your cross-complaint so we are able to respond.
14 I now propose we stipulate to continue the July 28, 2022 Further Case
Management Conference at least 30 days after I receive your January 24, 2022
15
Cross-Complaint.” (Decl. of Justin P. Rodriguez, { 19.) (See EXHIBIT B, a true
16 and correct copy of Mr. Rodriguez’ July 13, 2022 letter to Mr. Swanson attached
hereto and incorporated by this reference as though fully set forth here.)
17
Still, Mr. Swanson failed to respond. (Decl. of Justin P. Rodriguez, § 20.)
18
On July 19, 2022 at around 3:30 p.m., Mr. Rodriguez’ associate, Dan E. Fleischman,
19
Esq., phoned for Mr. Swanson at (661) 326-1611 and spoke to Elisa. She told Mr. Fleischman
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that Mr. Swanson was with a client but she would give him the message. (Decl. of Dan E.
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Fleischman, § 1.)
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Mr. Swanson never called back. (Decl. of Dan E. Fleischman, 2.)
23
MR. SWANSON’S BELATED JULY 19, 2022 LETTER
24
After waiting nearly a week through the weekend, on Tuesday, July 19, 2022, Mr.
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Swanson casually emailed Mr. Rodriguez’ a surprising letter, in pertinent part,
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admitting
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5.
28 PRIMAVERA JAUREGUI’S EX PARTE APPLICATION FOR ORDERS CONTINUING
MARCH 4, 2024 TRIAL AND EXTENDING 30-DAY DISCOVERY CUT-OFF 120 DAYS
“ ...that prior to receiving your May 31, 2022 letter, | filed a (6/2/22) request for entry of
default on the cross complaint... Please find a copy attached. I am also including a copy
of the cross-complaint, per your request.” (Emphasis added.) (Decl. of Justin P.
Rodriguez, § 21.)
Before seeking any ex parte relief to set aside the default, on Thursday, July 21, 2022 Mr
Rodriguez prepared and personally served, faxed and mailed by USPS Priority Mail ® Express
to opposing counsel, Jeremy Swanson, an ex parte notice, the Application For Mandatory Relief
From And To Set Aside Default Entered June 2, 2022, Stipulation and [Proposed] Answer and
Order, including the cited crucial statutes, case law and statewide rules. (See EXHIBIT C, a true
10
11 and correct copy of Mr. Rodriguez’ July 21, 2022 letter and Stipulation to Mr. Swanson attached
12 hereto and incorporated by this reference as though fully set forth here.) (Decl. of Justin P.
13 Rodriguez, § 24.)
14 Mr. Rodriguez’ proposed stipulation requested Mr. Swanson consent to accept
15 PRIMAVERA’S [Proposed] Answer while adding that the ex parte application would otherwise
16 serve as notice PRIMAVERA would seek ex parte relief on Monday, July 25, 2022 at 8:30 a.m.
17 in Department 17 seeking to shorten or extend the time to consider and hear PRIMAVERA’S
18 application to set aside the June 2, 2022 default and continue the July 28, 2022 continued Case
19 Management Conference. (Decl. of Justin P. Rodriguez, § 25.)
20 Mr. Swanson waited until September 9, 2022 to sign Mr. Rodriguez’ stipulation setting
21 aside Mr. Swanson’s premature default. (Register of Actions, 9/14/22.)
22 MR. SWANSON OBSTRUCTS DISCOVERY BY MISDIRECTING MAIL AWAY
FROM MR. RODRIGUEZ PUBLISHED SERVICE ADDRESS OF RECORD.
23
24 On August 31, 2022, Mr. Rodriguez diligently served his First Sets of Inspection
Requests, Form and Special Interrogatories and Requests for Admission on Mr. Swanson from
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Mr. Rodriguez’ published service address of record: “JUSTICE LAW PARTNERS, 106%
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Judge John Aiso St., #412, Los Angeles, CA 90012.” (Decl. of Justin P. Rodriguez, 427.)
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28 PRIMAVERA JAUREGUI’S EX PARTE APPLICATION FOR ORDERS CONTINUING
MARCH 4, 2024 TRIAL AND EXTENDING 30-DAY DISCOVERY CUT-OFF 120 DAYS
On September 16, 2022, Mr. Swanson hastily served his first set of RFA’s, Form and
Special Interrogatories and Request for Production to the wrong, incorrect non-designated
satellite office address:
“103 East Lemon Ave., Ste. 212, Monrovia, CA 91016.” (Decl. ofJustin P.
Rodriguez, § 28.)
On November 11, 2022, Mr. Rodriguez wrote his meet and confer regarding Mr.
Swanson’s blanket, patently frivolous objections to Mr. Rodriguez’ August 31, 2022
Inspection requests. (Decl. of Justin P. Rodriguez, § 29.) (See EXHIBIT D, a true and correct
copy of the November 11, 2022 letter attached hereto and incorporated by this reference as
10 though fully set forth iiere.)
11 Nevertheless, on November 18, 2022, Mr. Swanson continued to send his “meet and
12 confer” regarding Mr. Swanson’s misdirected September 16, 2022 discovery to the wrong
13 “Lemon Ave.” service address! (Decl. of Justin P. Rodriguez, { 30.) (See EXHIBIT E, a true
14 and correct copy of Mr. Swanson’s November 18, 2022 letter attached hereto and incorporated
15 by this reference as though fully set forth here.)
16 On November 25, 2022, Mr. Rodriguez told Mr. Swanson:
17 “Your 4-page November 18, 2002 ‘meet and confer’ letter was mistakenly
18 addressed to “/03 East Lemon Ave.” As you know, my correct, filed service
19 address in this case is “106 ¥% Judge John Aiso Street.” '! (Decl. of Justin P.
20 Rodriguez, { 31.) (See EXHIBIT F, a true and correct copy of Mr. Rodriguez’
21 November 25, 2022 letter attached hereto and incorporated by this reference as though
22 fully set forth here.)
23
24
* Service is invalid if incorrect address and zip code used. (Moghaddam v. Bone (2006) 142 Cal.App.4th|
25 283, 288, 47 Cal.Rptr.3d 602, 606; Adimay v. Ruhl (2008) 160 Cal.App.4" 583,72 Cal.Rptr 926.)
26
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28 PRIMAVERA JAUREGUI’S EX PARTE APPLICATION FOR ORDERS CONTINUING
MARCH 4, 2024 TRIAL AND EXTENDING 30-DAY DISCOVERY CUT-OFF 120 DAYS
On December 2, 2022 PRIMAVERA offered to accept, in exchange for mutual
dismissals of the complaint and cross-complaint in this action, the sum of $159,500 in
satisfaction of all claims for damages, costs and expenses, attorney fees and interest in this
action, including her interest in the real property she held with CONTRERAS. (See EXHIBIT
G, a true and correct copy of the December 2, 2022 Offer to Compromise attached hereto and
incorporated by this reference as though fully set forth here.)
On December 16, 2022, Mr. Rodriguez reminded Mr. Swanson to reply while retaining
his right to compel Mr. Swanson to respond long before Mr. Swanson disclosed he wanted to
withdraw from representing CONTRERAS. (Decl. of Justin P. Rodriguez, { 32.)
10 (See EXHIBIT H, a true and correct copy of Mr. Rodriguez’ December 16, 2022 letter attached
11 hereto and incorporated by this reference as though fully set forth here.)
12 MR. SWANSON’S FIRST MOTION TO BE RELIEVED AS COUNSEL
13 On February 1, 2023, Mr. Swanson filed his first Motion to Be Relieved as
14 CONTRERAS’ counsel without responding or acknowledging PRIMAVERA’S offer to
15 compromise. (Decl. of Justin P. Rodriguez, { 33.)
16 On or about February 14, 2023 I served Opposition to Mr. Swanson’s Motion to be
17 Relieved as Counsel. On February 21, 2023 Mr. Swanson served me his Reply claiming:
18 “Tn the declaration filed with the motion to be relieved in this matter, Mr.
19 Swanson stated that there was a material breakdown in the attorney-client
20 relationship resulting in the inability of counsel-of-record to continue
21 representation. The client (CONTRERAS) has been requested to signa
22 substitution of attorney form and has failed to do so.” (Emphasis added.)
23 (Swanson REPLY, pg. 3: 3-6.) (Decl. of Justin P. Rodriguez, 34.)
24 According to the Court’s February 28, 2023 8:51 a.m. Minute Order, Defense counsel
25 requested its Motion to be Relieved as Counsel to be “...dropped from calendar” without giving
26 Mr. Rodriguez notice. (Decl. of Justin P. Rodriguez, 35.)
27 On April 14, 2023 Mr. Rodriguez served PRIMAVERA’S Case Management Statement
&
28 PRIMAVERA JAUREGUI’S EX PARTE APPLICATION FOR ORDERS CONTINUING
MARCH 4, 2024 TRIAL AND EXTENDING 30-DAY DISCOVERY CUT-OFF 120 DAYS
requesting “... a jury trial”; On August 16, 2023, Mr. Swanson was ordered to “...file pre-trial
documents pursuant to LOCAL RULE 3.9” and meet and confer regarding/submit list of jury
instructions. (Decl. of Justin P. Rodriguez, § 36.)
Mr. Swanson never sent Mr. Rodriguez any pre-trial documents or offered to meet and
confer regarding jury instructions. Instead, Mr. Swanson consumed the remaining discovery and
trial preparation time to threaten frivolous discovery motions before again moving to be relieved
as counsel (for 1/30/2024 hearing) to force CONTRERAS to represent himself, in pro per, at the
February 2, 2024 MSC. (Decl. of Justin P. Rodriguez, 37.)
In the meantime, Mr. Swanson forced PRIMAVERA to respond to speciously frivolous
10 discovery “meet and confers” he never intended to enforce: For example, on September 1, 2023
11 Mr. Rodriguez had to respond to Mr. Swanson’s purported August 21, 2023 “meet and confer”:
12 “we responded to your RFA” set number 1 on March 9, 2023.”
13 “We never received any of the discovery you purportedly served on “April 4,
14 2023.”
15 “... your eight-month delay to move to compel any further responses to the
16 same discovery Mr. Zhao served on January 27, 2023 has resulted in substantial
17 prejudice to Ms. Jauregui; For example, some of the documents requested never
18 existed or may have been destroyed or are no longer available so the Court has
19 cause to find by delaying you voluntarily waived the right to compel any response
20 and/or disclosure. (See Crippen v. Sup.Ct. (Kaiser) (1984) 159 Cal.App.3d 254,
21 260, 205 Cal.Rptr. 477, 480.) (See EXHIBIT I, a true and correct copy of Mr. Rodriguez’
22 September 1, 2023letter attached hereto and incorporated by this reference as though fully set
23 forth here.)
24 On September 1 8, 2023, Mr. Rodriguez supplemented his September 1, 2023 response
25 with a 2-page reply seeking “...an amicable resolution of these issues ...to avoid your needless
26 threat of “...sanctions for fees and costs...” plainly unsupported under these curious
27 circumstances. (Decl. of Justin P. Rodriguez, { 38.) (See EXHIBIT J, a true and correct copy of
28 PRIMAVERA JAUREGUI’S EX PARTE APPLICATION FOR ORDERS CONTINUING
MARCH 4, 2024 TRIAL AND EXTENDING 30-DAY DISCOVERY CUT-OFF 120 DAYS
Mr. Rodriguez’ September 18, 2023 letter attached hereto and incorporated by this reference as
though fully set forth here.)
Nonetheless, on October 16, 2023, Mr. Swanson frivolously demanded I prepare
“...verified discovery responses without any objections by November 7, 2023.” (Decl. of Justin
P. Rodriguez, {| 39.) (See EXHIBIT K, a true and correct copy of Mr. Swanson’s October 16,
2023 letter attached hereto and incorporated by this reference as though fully set forth here.)
MR. SWANSON’S SECOND MOTION TO BE RELIEVED AS COUNSEL
On or about January 2, 2024, Mr. Swanson suddenly filed his second Motion to be
Relieved as (CONTRERAS’) Counsel, set for January 30, 2024 hearing; This time Mr.
10 Rodriguez filed no opposition and did not appear fearing wasting more client time and resources
11 (Decl. of Justin P. Rodriguez, § 40.)
12 At the February 2, 2024 MSC, CONTRERAS appeared in pro per and abruptly
13 threatened to file “... bankruptcy” if the March 4, 2024 trial went forward apparently to conceal
14 assets and circumvent fair resolution of PRIMAVERA’S claims. I never received any notice of
15 ruling of Mr. Swanson’s Motion to be Relieved as Counsel or CONTRERAS’ Substitution of
16 Attorney.(Decl. of Justin P. Rodriguez, § 41.)
17 Around, February 2, 2024 the Lancaster Superior Court in Dept A-17 notified me I was
18 currently scheduled to defend Defendant, Jody Bianco, in an upcoming murder trial entitled
19 People v. Jody Bianco, Case #’s MA078519 #9AN06916 beginning February 13 as a 0-10. (Decl.
20 of Justin P. Rodriguez, { 42.)
21 Iam unable to prepare for both trials especially because of Mr. Swanson’s discharge,
22 discovery delays and CONTRERAS’ bankruptcy threat without a short 120-day trial and
23 discovery cut-off delay to prepare further discovery and take Mr. Contreras’ deposition
24 concerning his financial position in light of his February 2, 2024 threat that could greatly
25 prejudice my client’s litigation position and expected recovery. (Decl. of Justin P. Rodriguez, J
26 43.)
27 Mr. Contreras’ belated outburst about his purported financial position was a complete
10
28 PRIMAVERA JAUREGUI’S EX PARTE APPLICATION FOR ORDERS CONTINUING
MARCH 4, 2024 TRIAL AND EXTENDING 30-DAY DISCOVERY CUT-OFF 120 DAYS
surprise and PRIMAVERA and Mr. Rodriguez have no reason to believe CONTRERAS is
entitled to lawfully receive U.S. bankruptcy protection. (Decl. of Justin P. Rodriguez, { 44.)
1 THE REC QUEST IS TIMELY.
A continuance motion (or ex parte application) must be made “as soon as reasonably
practical once the necessity for the continuance is discovered.” (Ca Rules of Court Rule
3.1332(b); see also Reales Investment, LLC v. Johnson (2020) 55 CASth 463, 469, 269
Cal.Rptr.3d at 530.)
No other requests for continuance have been made and PRIMAVERA and Mr. Rodriguez
10
sought immediate relief as soon as practical after CONTRERA’S February 2, 2024 bankruptcy
11
warning.
12
Under these circumstances, there is abundant good cause warranting a continuance of the
13
March 4, 2024 trial date and reopening of discovery cut-off due to CONTRERAS’ threatened
14
bankruptcy, his attorney’s release and their repeated delays and failures to properly respond to
15
and serve discovery responses throughout this litigation, which resulted in PRIMAVERA and
16
her counsel incurring additional litigation expenses through no fault of their own. !!
17
2 CONCLUSION.
18
PRIMAVERA respectfully prays that the Court order the March 4, 2024 trial date and
19
30-day discovery cut-off be continued and extended at least (120) one-hundred twenty days to
20
allow PRIMAVERA additional time to serve further discovery and depose CONTRERAS about
21
their property and his current financial position given that PRIMAVERA never received
22
confirmation that CONTRERAS’S former counsel, Jeremy D. Swanson, communicated Ms.
23
Jauregui’s eminently reasonable December 2, 2022 $159,500 Code of Civil Procedure § 998
24
25
26
5 (See Decl. of Justin P. Rodriguez, {1 10-26, 33-35 misdirecting discovery/responses-withdrawing (2)
27 separate Motions to be Relieved as Counsel without notice.)
1
28 PRIMAVERA JAUREGUI’S EX PARTE APPLICATION FOR ORDERS CONTINUING
MARCH 4, 2024 TRIAL AND EXTENDING 30-DAY DISCOVERY CUT-OFF 120 DAYS
Offer to Compromise sent directly from Mr. Rodriguez’ proper and valid service address of
record located at 106% Judge John Aiso St., #412, Los Angeles, CA 90012.
DATED: February 7, 2024
JUSTIN PAUL RODRIGUEZ
JUSTIN P. RODRIGUEZ, Attorney for Plaintiff and Cross-
Defendant PRIMAVE) RA JAUREGUI
//
M
H/
M/
10
MH
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12 M
13 M
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28 PRIMAVERA JAUREGUI’S EX PARTE APPLICATION FOR ORDERS CONTINUING
MARCH 4, 2024 “RIAL AND EXTENDING 30-DAY DISCOVERY CUT-OFF 120 DAYS
DECLARATION OF JUSTIN P. RODRIGUEZ: NOTICE, GOOD CAUSE,
IRREPERABLE HARM OR ANY OTHER STATUTORY BASIS FOR GRANTING
RELIEF EX PARTE
Justin P. Rodriguez, certifies and declares:
1 I am the attorney record for PRIMAVERA JAUREGUI in this action and I have
personal knowledge of each fact stated in this declaration.
2 On November 18, 2022, Mr. Swanson continued to misdirect his discovery “meet
and confer” letters and September 16, 2022 discovery to the wrong “Lemon Ave.” service
address!
3 On November 25, 2022, I told Mr. Swanson:
10
“Your 4-page November 18, 2002 ‘meet and confer’ letter was mistakenly
11
addressed to “03 East Lemon Ave.” As you know, my correct, filed service
12
address, in this case is “106 % Judge John Aiso Street.” '*! (EXHIBIT F)
13
4 On February 1, 2023, Mr. Swanson filed his first Motion to Be Relieved as
14
CONTRERAS’ counsel without responding or acknowledging PRIMAVERA’S offer to
1S
compromise.
16
5 On or about February 14, 2023 I served Opposition to Mr. Swanson’s initial
17
Motion to be Relieved as Counsel.
18
6 On February 21, 2023 Mr. Swanson served me his Reply claiming:
19
“In the declaration filed with the motion to be relieved in this matter, Mr.
20
Swanson stated that there was a material breakdown in the attorney-client
21
relationship resulting in the inability of counsel-of-record to continue
22
representation. The client (CONTRERAS) has been requested to signa
23
24
° Service is invalid if incorrect address and zip code used. (Moghaddam v. Bone (2006) 142 Cal.App.4th
25 283, 288, 47 Cal.Rptr.3d 602, 606; Adimay v. Ruhl (2008) 160 Cal.App.4" 583,72 Cal.Rptr 926.)
26
27
13
28 PRIMAVERA JAUREGUI’S EX PARTE APPLICATION FOR ORDERS CONTINUING
MARCH 4, 2024 TRIAL AND EXTENDING 30-DAY DISCOVERY CUT-OFF 120 DAYS
substitution of attorney form and has failed to do so.” (Emphasis added.)
(Swanson REPLY, pg. 3: 3-6.)
7. According to the Court’s February 28, 2023 8:51 a.m. Minute Order, Defense
counsel requested its Motion to be Relieved as Counsel to be “...dropped from calendar”; I was
never given notice or an opportunity to recover my expenses for filing opposition.
8 On April 14, 2023 I served PRIMAVERA’S Case Management Statement
requesting “... a jury trial”; On August 16, 2023, Mr. Swanson was ordered to “...file pre-trial
documents pursuant to LOCAL RULE 3.9” and meet and confer regarding/submit list of jury
instructions.
10 9 I never received any pre-trial documents from Mr. Swanson and he never offered
11 to meet and confer regarding jury instructions. Instead, Mr. Swanson used the remaining
12 discovery and trial preparation time to threaten speciously frivolous discovery “meet and confer”
13 correspondence he later showed he never intended to enforce before he again moved to be
14 relieved as counsel (for 1/30/2024 hearing) then withdrew the motion; this resulted in
15 CONTRERAS representing himself, in pro per, at the February 2, 2024 MSC where
16 CONTRERAS, for the first time, threatened to file bankruptcy to intimidate my client if the
17 March 4, 2024 trial went forward.
18 10. In the meantime, Mr. Swanson forced me to respond to speciously frivolous
19 discovery “meet and confers” he never intended to pursue. For example, on September 1, 2023 I
20 responded to Mr. Swanson’s purported August 21, 2023 “meet and confer”:
21 “..we responded to your RFA” set number 1 on March 9, 2023.”
22 “We never received any of the discovery you purportedly served on “April 4,
23 2023.”
24 “... your eight-month delay to move to compel any further responses to the
25 same discovery Mr. Zhao served on January 27, 2023 has resulted in substantial
26 prejudice to Ms. Jauregui; For example, some of the documents requested never
27 existed or may have been destroyed or are no longer available so the Court has
14
28 PRIMAVERA JAUREGUI’S EX PARTE APPLICATION FOR ORDERS CONTINUING
MARCH 4, 2024 TRIAL AND EXTENDING 30-DAY DISCOVERY CUT-OFF 120 DAYS
cause to find by delaying you voluntarily waived the right to compel any response
and/or disclosure. (See Crippen v. Sup.Ct. (Kaiser) (1984) 159 Cal.App.3d 254,
260, 2¢5 Cal.Rptr. 477, 480.) (See EXHIBIT I, a true and correct copy of my
September 1, 2023 letter attached hereto and incorporated by this reference as
though fully set forth here.)
11. I sought immediate relief as soon as practical after the February 2, 2024 MSC
where CONTRERAS told the MSC judge and I he would file bankruptcy if the March 4, 2024
trial went forward. The judge told me as MSC judge he had no jurisdiction to orally continue the
March 4, 2024 trial or extend the 30-day discovery cut-off at least 120 days so I brought this
10 application to protect PRIMAVERA’S property claims and to take further discovery regarding
11 CONTRERAS’ purported financial situation.
12 12. On February 7, 2024 around 11:20 a.m. I called (661) 342-5805 and left a
13 message for Mr. Contreras that my ex parte application would be made on February 9, 2024 at
14 8:30 a.m. in Department 17 of the Court located at 1415 Truxtun, Bakersfield, CA 93301 and to
15 let me know if he would agree to the continuance or oppose it.
16 13. On February 7, 2024 around 11:45 a.m. I transmitted to Mr. Jaime Davila
17 Contreras this ex parte application to continue the March 4, 2024 trial and extend the 30-day
18 discovery cut-off at least 120 days at jdavilatrucking140@outlookcom.
19 I declare under penalty of perjury under the laws of the State of California that the
20 foregoing is true and correct.
21 Dated: February 7, 2024 JUSTIN P. RODRIGUEZ
22 Justin P. Rodriguez
23 //
24 /
25
i
26
1
27
15
28 PRIMAVERA JAUREGUI’S EX PARTE APPLICATION FOR ORDERS CONTINUING
MARCH 4, 2024 TRIAL AND EXTENDING 30-DAY DISCOVERY CUT-OFF 120 DAYS
DECLARATION OF JUSTIN P. RODRIGUEZ IN SUPPORT OF PRIMAVERA
JAUREGUPS EX PARTE APPLICATION FOR CONTINUANCE AND EXTENSION
OF MARCH 4, 2024 TRIAL AND 30-DAY DISCOVERY CUT-OFF
I, the undersigned, hereby declare that the facts set forth herein are true and of my own
personal knowledge. I have first hand knowledge of the following facts and if called and sworn
as a witness, I could and would testify competently thereto, as follows:
1 On September 2, 2021 PRIMAVERA filed her initial complaint through her first
counsel, Elizabeth Yang, Esq.
2. On January 14, 2022 CONTRERAS demurred to PRIMAVERA’S complaint.
10 3 On January 24, 2022, defendant CONTRERAS filed a cross-complaint against
11 PRIMAVERA.
12
4 On April 18, 2022, Ms. Yang filed PRIMAVERA’S Second Amended Complaint
13 (SAC).
14 5 At an April 29, 2022 Case Management Conference, PRIMAVERA appeared
15 without counsel to notify the court and Jeremy Swanson about “... her plan is to retain new
16 counsel.”
17 6 The court immediately scheduled a July 28, 2022 Further Case Management
18 Conference “Re: Plaintiff to Retain new counsel”.
19 7 On May 19, 2022, Ms. Yang formally filed a Substitution of Attorney that Ms.
20 Yang served that day to Mr. Contreras’s attorney, Jeremy Swanson, Esq.
21 8. On May 19, 2022, PRIMAVERA became her own attorney of record, in pro per, >
22 by operation of law.
23 9. On May 26, 2022, Mr. Swanson filed CONTRERAS’ Answer to Ms. Yang’s
24 April 18, 2022 SAC but PRIMAVERA never received it.
25 10. On May 31, 2022, Mr. Swanson attempted to Request PRIMAVERA’S Entry of
26
Preview
Justin P. Rodriguez, Esq. [SBN 271072] LAW OFFICES OF JUSTIN PAUL RODRIGUEZ 106% Judge John Aiso St., #412 Los Angeles, CA 90012 (213) 280-8908 Attorney for Plaintiff and Cross-Defendant, PRIMAVERA JAUREGUI THE SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF KERN-METROPOLITAN DIVISION UNLIMITED JURISDICTION 10 11 PRIMAVERA JAUREGUI ) CASE NO: BCV-21-102071 12 Plaintiff, } PRIMAVERA JAUREGUI’S NOTICE OF ) EX PARTE APPLICATION AND 13 VS. ) APPLICATION FOR ORDERS CONTINUING MARCH 4, 2024 TRIAL 14 ) AND 30-DAY DISCOVERY CUT-OFF 120 ) DAYS DUE TO CONTRERAS FEBRUARY 15 JAIME DAVILA CONTRERAS, and DOES 1-10, inclusive ) 2, 2024 THREAT TO FILE U.S. 16 ) BANKRUPTCY IF MARCH 4, 2024 TRIAL Defendants. ) PROCEEDS AFTER HE DISCHARGED HIS 17 COUNSEL, JEREMY D. SWANSON, ESQ., JAIME DAVILA CONTRERAS, ) 18 ) DECLARATION OF JUSTIN P. Cross-Complainant, 19 ) RODRIGUEZ RE: NOTICE, GOOD ) CAUSE, IRREPERABLE HARM AND OR 20 ) ANY OTHER STATUTORY BASIS FOR VS. ) GRANTING RELIEF EX PARTE 21 ) POINTS AND AUTHORITES, AND, DECLARATIONS OF DAN E. 22 PRIMAVERA JAUREGUI, FLEISCHMAN AND PRIMAVERA ) JAUREGUI AND IN SUPPORT THEREOF 23 Cross-Defendant ) SEPARATE [PROPOSED] ORDER 24 LODGED CONCURRENTLY 25 ) Ex Parte Hearing Information: 26 ) Date: February 9, 2024 27 ) Time: 8:30 a.m. 28 PRIMAVERA JAUREGUI’S EX PARTE APPLICATION FOR ORDERS CONTINUING MARCH 4, 2024 TRIAL AND EXTENDING 30-DAY DISCOVERY CUT-OFF 120 DAYS ) Dept.: 17, (661) 868-7204 Judge: Hon. Thomas S. Clark 1415 Truxtun ) Bakersfield, CA 93301 ) TO EACH PARTY AND TO THE COUNSEL OF RECORD FOR EACH PARTY: YOU ARE HEREBY NOTIFIED THAT for the convenience and efficiency of the court and parties on February 9, 2024 at 8:30 a.m. in Department 17 of this Court located at 1415) Truxtun, Bakersfield, CA 93301, plaintiff and cross-defendant, PRIMAVERA JAUREGUI, hereafter, (“PRIMAVERA”) will apply ex parte to the Court for orders continuing the March 4, 10 2024 trial and extending the (30) day discovery cut-off before trial one hundred and twenty (120)} 11 days to allow PRIMAVERA to depose CONTRERA about his financial position and prepare 12 for trial after receiving defendant and cross-complainant’s JAIME DAVILA CONTRERAS, 13 14 hereafter, “CONTRERAS” Friday, February 2, 2024 in pro per MSC "! oral threat to file 15 bankruptcy if the March 4, 2024 trial goes forward. 16 The application is made on the further ground that the MSC Judge told PRIMAVERA’S 17 counsel, Justin P. Rodriguez, Esq. that he had no jurisdiction to consider PRIMAVERA’S oral 18 motion to continue the March 4, 2024 trial as a MSC judge. 19 Moreover, any fraudulent bankruptcy or bankruptcy discharge that CONTRERAS’ 20 threatened to complete on or before March 4, 2024 after his attorney, Jeremy D. Swanson, Esq. 21 22 was terminated places PRIMAVERA’S in reasonable fear that CONTRERAS would wrongfully 23 obstruct or defeat PRIMAVERA’S primary right to recover and substantially erode the value of 24 25 ' On or about January 4, 2024, CONTRERAS’S counsel, Jeremy D. Swanson again moved to be 26 Relieved as Contreras’ Counsel, set for January 30, 2024 hearing. Evidently, Mr. Swanson again withdrew his motion and Mr. Contreras substituted is as his own counsel, appearing in pro per at the 27 February 2, 2024 MSC. (Decl. of Justin P. Rodriguez, q41) il 28 PRIMAVERA JAUREGUI’S EX PARTE APPLICATION FOR ORDERS CONTINUING MARCH 4, 2024 TRIAL AND EXTENDING 30-DAY DISCOVERY CUT-OFF 120 DAYS PRIMAVERA’S ¥% share of the real property located at 7708 Bonanza Dr., Bakersfield, CA 93307, where CONTRERAS currently lives after leaving (the creditor) PRIMAVERA at the alter. The emergency application is made on the further grounds that these surprising facts place PRIMAVERA in reasonable fear of further possible fraud and being abusively forced to enter a federal venue to expend precious resources to rightfully seek to set aside or move for relief under the Uniform Fraudulent Transfer Act (UFTA) to recover her rightful share of the reall property before having to go to state court trial and risk receiving nothing. (See Mid-Tech 10 Consulting, Inc. v. Swendra (8th Cir. 1991) 938 F.2d 885, 888.) ll Said motion will be made on the further grounds that CONTRERAS’ recent threat to file 12 bankruptcy suggesting purported insolvency are relevant to the subject matter of this action, do 13 14 not relate to privileged matters and that any abrupt bankruptcy will almost certainly place 15 potentially illegal and fraudulent obstacles designed solely to abusively obstruct and prevent 16 PRIMAVERA from receiving her fair share of the real property located at 7708 Bonanza Dr., 17 Bakersfield, CA 93307 and is without substantial or any reasonable justification, whatsoever. 18 (See 11 USCA § 548-Section 548 designed to invalidate transactions that unfairly diminish the 19 debtor’s assets available to pay creditors. (Bonded Fin'l Services, Inc. v. European American 20 21 Bank (7th Cir. 1988) 838 F.2d 890, 892; In re First Alliance Mortg. Co. (9th Cir. 2006) 471 F.3d 22 977, 1008- purpose of fraudulent transfer law is “to protect creditors from last-minute 23 diminutions in the pool of assets in which they have interests.”) 24 This motion is based on this application, the memorandum of points and 25 authorities filed herewith, declarations of Justin Rodriguez, Dan E. Fleischman and Primavera 26 Jauregui, oral and documentary evidence that may be presented at the hearing of the application 27 iii 28 PRIMAVERA JAUREGUI’S EX PARTE APPLICATION FOR ORDERS CONTINUING MARCH 4, 2024 TRIAL AND EXTENDING 30-DAY DISCOVERY CUT-OFF 120 DAYS and the pleadings, records and papers filed herein. DATED: February 7, 2024 Just P. Rodriguez. JUSTIN. P. RODRIGUEZ, Attorney for Plaintiff and Cross-Defendant Primavera Jauregui M/ I // M 10 / 11 M 12 M 13 14 15 M 16 // 17 // 18 M 19 I 20 / 21 // 22 23 // 24 // 25 // 26 // 27 iv 28 PRIMAVERA JAUREGUI’S EX PARTE APPLICATION FOR ORDERS CONTINUING MARCH 4, 2024 TRIAL AND EXTENDING 30-DAY DISCOVERY CUT-OFF 120 DAYS TABLE OF CONTENTS Page(s) Topic POINTS AND AUTHORITIES DECLARATION OF JUSTIN P. RODRIGUEZ NOTICE, GOOD CAUSE, IRREPERABLE HARM OR ANY OTHER STATUTORY BASIS FOR GRANTING RELIEF EX PARTE. 13 DECLARATION OF JUSTIN P. RODRIGUEZ 16 DECLARATION OF DAN E. FLEISCHMAN 23 DECLARATION OF PRIMAVERA JAUREGUI 24 10 PROOF OF SERVICE. 7 26 11 SERVICE LIST 27 12 TABLE OF AUTHORITIES 13 Statutes, Rules, Legislative Materials 14 15 11 USCA § 548. UL 16 Uniform Fraudulent Transfer Act. 11 17 Ca Rules of Court Rule 3.1332(b). 11 18 19 Code of Civil Procedure § 998 11 20 Treatises and Other Materials 21 Cases 22 Adimay vy. Ruhl (2008) 23 160 Cal.App.4"" 583,72 Cal.Rptr 926 24 Bonded Fin'l Services, Inc. v. European American Bank (7th Cir. 1988) 838 F.2d 890, 892. 111 25 26 27 28 PRIMAVERA JAUREGUI’S EX PARTE APPLICATION FOR ORDERS CONTINUING MARCH 4, 2024 TRIAL AND EXTENDING 30-DAY DISCOVERY CUT-OFF 120 DAYS Page(s) Brown v. Presley of Southern Calif. (1989) 213 Cal.App.3d 612, 620, 261 Cal.Rptr. 779, 784 & fit. 3..ccccssssesssseee Byrne v. Laura (1997) 52 Cal.App.4th 1054, 1073, 60 Cal.Rptr.2d 908, 920. Cochran v. Cochran (1997) 56 Cal.App.4th 1115, 1118, 66 Cal.Rptr.2d 337, 339 Friedman v. Friedman (1993) 20 Cal.App. 4th 876, 887-888, 24 Cal.Rptr.2d 892, 899 Inre First Alliance Mortg. Co. (9th Cir. 2006) 471 F.3d 977, 1008.. AL 10 11 Lasalle v. Vogel (2019) 36 CASth 127, 135, 248 Cal.Rptr.3d 263, 268 12 Maglica v. Maglica (1998) 13 66 Cal.App.4th 442, 449, 78 Cal.Rptr.2d 101, 104 14 Marvin v. Marvin (1976) 15 18 Cal.3d 660, 679-681, 134 Cal.Rptr. 815, 828-829. 16 Mid-Tech Consulting, Inc. v. Swendra (8th Cir. 1991) 938 F.2d 885, 888 AL 17 18 Moghaddam v. Bone (2006) 142 Cal.App.4th 283, 288, 47 Cal.Rptr.3d 602, 606 19 Reales Investment, LLC v. Johnson (2020) 20 55 CASth 463..469, 269 Cal.Rptr.3d at 530 11 21 Sass v. Cohen (2020) 22 10 C5th 861, 885-886, 272 Cal.Rptr.3d 836, 856 2,3 23 Velez v. Smith (2006) 142 Cal.App.4th 1154, 1175-1176, 48 Cal.Rptr.3d 642, 658-659... 2,3 24 1 25 26 HW 27 vi 28 PRIMAVERA JAUREGUI’S EX PARTE APPLICATION FOR ORDERS CONTINUING MARCH 4, 2024 TRIAL AND EXTENDING 30-DAY DISCOVERY CUT-OFF 120 DAYS POINTS AND AUTHORITIES IN SUPPORT OF PRIMAVERA JAUREGUI’S EX PARTE APPLICATION FOR CONTINUANCE AND EXTENSION OF MARCH 4 2024 TRIAL AND 30-DAY DISCOVERY CUT-OFF On September 2, 2021 PRIMAVERA’S filed her initial complaint through her first counsel, Elizabeth Yang, Esq. (Decl. of Justin P. Rodriguez, 1.) On January 14, 2022 CONTRERAS demurred to PRIMAVERA’S complaint. (Decl. of Justin P. Rodriguez, 2.) On January 24, 2022, defendant CONTRERAS filed a cross-complaint against PRIMAVERA. (Decl. of Justin P. Rodriguez, 3.) On April 18, 2022, Ms. Yang filed PRIMAVERA’S Second Amended Complaint (SAC). 10 for Breach of Contract, Intentional/Negligent Misrepresentation, Quantum Meruit, Constructive 11 Trust and Declaratory Relief. (Emphasis added.)(Decl. of Justin P. Rodriguez, 4.) 12 PRIMAVERA’S PLAN TO OBTAIN NEW COUNSEL 13 At an April 29, 2022 Case Management Conference, PRIMAVERA appeared without 14 counsel to notify the court with Jeremy D. Swanson present about “... her plan is to retain new 13. counsel.” (Decl. of PRIMAVERA, 4 1.)@ecl. of Justin P. Rodriguez, 5.) 16 The court then immediately scheduled a July 28, 2022 Further Case Management 17 Conference “Re: Plaintiff to Retain new counsel” “continued from April 29, 2022. (Decl. of 18 PRIMAVERA, § 1.) (Decl. of Justin P. Rodriguez, 6.) (See Register of Actions, Case No. BCV- 19 21-102071, scheduled Hearings Further Case Management Conference (07/28/2022 at 8:15 20 AM...”.) 21 ELIZABETH YANG’S SUBSTITUTION OF ATTORNEY 22 A month later on or about May 19, 2022, Ms. Yang formally filed a Substitution of 23 Attorney, which Ms. Yang served that day to Mr. Contreras’s attorney, Jeremy D. Swanson, Esq. 24 (Decl. of Justin P. Rodriguez, 7.) Thus, by operation of law, PRIMAVERA became her own 25 attorney of record, in pro per. (Decl. of Justin P. Rodriguez, 8.) 26 On May 26, ans Mr. Swanson filed CONTRERAS’ Answer to Ms. Yang’s April 18, 27 1 28 PRIMAVERA JAUREGUI’S EX PARTE APPLICATION FOR ORDERS CONTINUING MARCH 4, 2024 TRIAL AND EXTENDING 30-DAY DISCOVERY CUT-OFF 120 DAYS 2022 SAC, which PRIMAVERA never received. (Decl. of Justin P. Rodriguez, 9.) (Decl. of PRIMAVERA, § 2.) MR. SWANSON’S FIRST ATTEMPT TO REQUEST PRIMAVERA’S DEFAULT WITHOUT NOTICE Three days later on May 31, 2022 and unbeknownst to PRIMAVERA or Mr. Rodriguez, Mr. Swanson sought to thwart PRIMAVERA’S effort to seek a fair and reasonable settlement of her legitimate rights and obligations arising from her relationship with CONTRERAS, which can| be properly adjudicated in her general civil action.”! (Marvin v. Marvin (1976) 18 Cal.3d 660, 10 ? The fact of nonmarital cohabitation is not itself a barrier to the judicial recognition and enforcement of express and implied agreements between the parties. They have the same right to enforce contracts and ll assert equitable rights and interests as do any other unmarried persons. And courts may also look to a 12 “variety of other remedies in order to protect the parties” lawful expectations. (Marvin v. Marvin (1976) 18 Cal.3d 660, 684, 134 Cal.Rptr. 815, 831 & fn. 24.) Thus, unmarried cohabitants can avail 13 themselves of the following traditional legal and equitable remedies to enforce properly-founded property, support and other financial claims and obligations arising out of their relationship: Action 14 for breach of express contract (e.g., to pool earnings and hold acquisitions in accord with community property law, or to hold earnings and acquisitions as separate property; to provide support, etc.). 15 (Marvin v. Marvin (1976) 18 Cal.3d 660, 674-675, 134 Cal.Rptr. 815, 825; see Cochran v. Cochran (1997) 56 Cal.App.4th 1115, 1118, 66 Cal.Rptr.2d 337, 339-alleged agreement to share property 16 acquisitions equally and to provide “lifetime support”; Action on an implied contract based upon the parties’ conduct (e.g., to share earnings and acquisitions or to provide support). (Marvin v. Marvin, 17 supra, 18 Cal.3d at 677-684, 134 Cal.Rptr. at 827-831; see Friedman v. Friedman (1993) 20 Cal.App. 4th 876, 887-888, 24 Cal.Rptr.2d 892, 899-alleged implied agreement for support upon termination of 18 relationship; Action to enforce a partnership or joint venture agreement (express or implied). (Marvin v. Marvin, supra, 18 Cal.3d at 684, 134 Cal.Rptr. at 831; Action to impose a constructive trust, resulting 19 trust or equitable lien. (Marvin v. Marvin, supra, 18 Cal.3d at 684, 134 Cal.Rptr. at 831; Action for 20 declaratory relief to establish rights under a cohabitation agreement. (Marvin v. Marvin, supra, 18 Cal.3d] at 675, 134 Cal.Rptr. at 825; see Byrne v. Laura (1997) 52 Cal.App.4th 1054, 1073, 60 Cal.Rptr.2d 908, 21 920; Action for specific performance of a property agreement (where damages are not an adequate remedy; e.g., real property (Ca Civil § 3387) or personal property with sentimental value (Rest.2d 22 Contracts § 360, comm:. 'b')). (See Byrne v. Laura, supra, 52 Cal.App.4th at 1073, 60 Cal.Rptr.2d at 920 -Marvin claimant could properly elect to pursue specific performance of property agreement with 23 respect to residence and family heirlooms; Action in quantum meruit to recover the reasonable value of services rendered (household, business or other legally-compensable services), less the reasonable value 24 of support received, upon proof the services were rendered 'with the expectation of monetary reward." (Marvin v. Marvin, supra, 18 Cal.3d at 684, 134 Cal.Rptr. at 831-832; see Maglica v. Maglica (1998) 66 25 Cal.App.4th 442, 449, 78 Cal.Rptr.2d 101, 104.) 26 27 2 28 PRIMAVERA JAUREGUI’S EX PARTE APPLICATION FOR ORDERS CONTINUING MARCH 4, 2024 TRIAL AND EXTENDING 30-DAY DISCOVERY CUT-OFF 120 DAYS 679-681, 134 Cal.Rptr. 815, 828-829 & fs. 17, 18 & 19; see also Sass v. Cohen (2020) 10 CSth 861, 885-886, 272 Cal.Rptr.3d 836, 856 (12:5.7); Velez v. Smith (2006) 142 Cal.App.4th 1154, 1175-1176, 48 Cal.Rptr.3d 642, 658-659.) To deceptively seek PRIMAVERA’S Default judgment on Contreras’ retaliatory January 24, 2022 Cross-Complaint, Mr. Swanson never properly served PRIMAVERA the Cross- Complaint or dated the attached Proof of Service. (Decl. of Justin P. Rodriguez,{ 10.) (Decl. of PRIMAVERA, { 3.) (See Mr. Swanson’s May 31, 2022 Request for Entry of Default, Register off Actions.) 10 Moreover, Mr. Swanson never warned or mentioned to PRIMAVERA, her prior counsel, 11 Ms. Yang, or Mr. Rodriguez that he was planning to take PRIMAVERA’S default. 5! (Decl. of 12 PRIMAVERA, { 4.) 13 Still, the clerk refused to enter PRIMAVERA’S default: Mr. Swanson’s rush for a 14 windfall evidently caused him to hastily misspell his own client’s name! “1b Party does not 15 conform to the Cross-Complaint.” e.g. “Drivila” should be “Davila” (See ROA 5/31/22 entry.) 16 17 PRIMAVERA RETAINS JUSTIN P. RODRIGUEZ, ESQ. 18 On Tuesday, May 31, 2022, Mr. Rodriguez’ initial letter to Mr. Swanson stated, 19 in pertinent part, 20 “ We’ve just been retained to represent Ms. Primavera Jauregui. ..., we would appreciate a 60-day extension to respond to your Cross-Complaint 21 while suggesting we try to reach a reasonable settlement before the July 28, 2022 Further Case Management Conference.” (See EXHIBIT A, a true and 22 correct copy of Mr. Rodriguez’ May 31, 2022 letter to Mr. Swanson attached hereto and incorporated by this reference as though fully set forth here.) 23 (Decl. of Justin P. Rodriguez, 11, referring to Mr. Rodriguez’ May 31, 2022 24 25 3 All attorneys have an ethical obligation to warn opposing counsel that the attorney is about to take an adversary’s default. (See Lasalle v. Vogel (2019) 36 CASth 127, 135, 248 Cal.Rptr.3d 263, 268; 26 Brown v. Presley of Southern Calif. (1989) 213 Cal.App.3d 612, 620, 261 Cal.Rptr. 779, 784 & fn. 3.) 27 3 28 PRIMAVERA JAUREGUI’S EX PARTE APPLICATION FOR ORDERS CONTINUING MARCH 4, 2024 “RIAL AND EXTENDING 30-DAY DISCOVERY CUT-OFF 120 DAYS letter.) Mr. Swanson didn’t respond. (Decl. of Justin P. Rodriguez, 12.) Mr. Rodriguez then called Mr. Swanson’s office several times and spoke to Elisa to have Mr. Swanson call. (Decl. of Justin P. Rodriguez, 13.) Mr. Swanson never called back. (Decl. of Justin P. Rodriguez, 14.) MR. SWANSON’S SECOND ATTEMPT TO REQUEST PRIMAVERA’S DEFAULT WITHOUT NOTICE Instead, and again unbeknownst to PRIMAVERA or Mr. Rodriguez, on Thursday, June 2, 2022 Mr. Swanson filed a second Request for PRIMAVERA’S Entry of Default to Contreras 10 January 24, 2022 Cross-Complaint! (Decl. of PRIMAVERA, § 5.) (Decl. of Justin P. 11 Rodriguez, 15.) (ROA) Register of Actions, June 2, 2022 Request for Entry of Default.) 12 Once more, Mr. Swanson never properly served PRIMAVERA or Mr. Rodriguez and 13 failed to date the attached Proof of Service. 14 This time the clerk entered default at “5:00 PM” on June 2, 2022. (Decl. of Justin P. 15 Rodriguez,{ 16.) 16 Mr. Swanson never returned Mr. Rodriguez’ calls nor sent either default request to 17 Mr. Rodriguez’s service address. (Decl. of Justin P. Rodriguez,{ 16.) 18 In the meantime, Mr. Rodriguez had to wait while PRIMAVERA retrieved important file 19 information/copies from her former attorney, Elizabeth Yang., who held up turning the 20 documents over. (Decl. of PRIMAVERA, § 6.) (Decl. of Justin P. Rodriguez, § 17.) 21 MR. RODRIGUEZ’ PRE-SCHEDULED JULY 26, 2022 VACATION 22 Before accepting this case, Mr. Rodriguez pre-booked and paid for a week out of 23 town week vacation with his wife and children. (Decl. of Justin P. Rodriguez, { 18.) 24 Unfortunately,‘only later Mr. Rodriguez’ realized his trip conflicted with this court’s July 25 28, 2022 continued Case Management Conference (CMC), which was scheduled by the court on 26 April 29, 2022 when PRIMAVERA appeared without counsel to advise the court (and Mr. 27 Swanson) about“... her plan is to retain new counsel.” (See Register of Actions, 4/29/22- 4 28 PRIMAVERA JAUREGUI’S EX PARTE APPLICATION FOR ORDERS CONTINUING MARCH 4, 2024 TRIAL AND EXTENDING 30-DAY DISCOVERY CUT-OFF 120 DAYS “Scheduled Hearings —Further Case Management Conference (07/28/2022 at 8:15 AM...”,CMC set by the Court on April 29, 2022 “re: Plaintiff to retain new counsel.” MR. RODRIGUEZ’ AND DAN E. FLEISCHMAN’S FURTHER ATTEMPTS TO CONTACT MR. SWANSON On June 2, 2022, CONTRERAS’ counsel, Mr. Swanson, unethically requested to enter default against PRIMAVERA, who was in pro per and without counsel, without warning or noticing PRIMAVERA so the clerk entered default on June 2, 2022. Still unaware of Mr. Swanson’s attempts to obtain PRIMAVERA’S default and June 2, 2022 clerk’s entry, Mr. Rodriguez mailed and faxed a July 13, 2022 letter to Mr. Swanson 10 requesting, in pertinent part, 11 “T tried to reach you today since I never received a response to the enclosed May 12 31, 2022 letter we mailed requesting a 60-day extension to respond to your January 24, 2022 Cross-Complaint. 13 Today, your paralegal said she never received my letter; therefore, please immediately forward a copy of your cross-complaint so we are able to respond. 14 I now propose we stipulate to continue the July 28, 2022 Further Case Management Conference at least 30 days after I receive your January 24, 2022 15 Cross-Complaint.” (Decl. of Justin P. Rodriguez, { 19.) (See EXHIBIT B, a true 16 and correct copy of Mr. Rodriguez’ July 13, 2022 letter to Mr. Swanson attached hereto and incorporated by this reference as though fully set forth here.) 17 Still, Mr. Swanson failed to respond. (Decl. of Justin P. Rodriguez, § 20.) 18 On July 19, 2022 at around 3:30 p.m., Mr. Rodriguez’ associate, Dan E. Fleischman, 19 Esq., phoned for Mr. Swanson at (661) 326-1611 and spoke to Elisa. She told Mr. Fleischman 20 that Mr. Swanson was with a client but she would give him the message. (Decl. of Dan E. 21 Fleischman, § 1.) 22 Mr. Swanson never called back. (Decl. of Dan E. Fleischman, 2.) 23 MR. SWANSON’S BELATED JULY 19, 2022 LETTER 24 After waiting nearly a week through the weekend, on Tuesday, July 19, 2022, Mr. 25 Swanson casually emailed Mr. Rodriguez’ a surprising letter, in pertinent part, 26 admitting 27 5. 28 PRIMAVERA JAUREGUI’S EX PARTE APPLICATION FOR ORDERS CONTINUING MARCH 4, 2024 TRIAL AND EXTENDING 30-DAY DISCOVERY CUT-OFF 120 DAYS “ ...that prior to receiving your May 31, 2022 letter, | filed a (6/2/22) request for entry of default on the cross complaint... Please find a copy attached. I am also including a copy of the cross-complaint, per your request.” (Emphasis added.) (Decl. of Justin P. Rodriguez, § 21.) Before seeking any ex parte relief to set aside the default, on Thursday, July 21, 2022 Mr Rodriguez prepared and personally served, faxed and mailed by USPS Priority Mail ® Express to opposing counsel, Jeremy Swanson, an ex parte notice, the Application For Mandatory Relief From And To Set Aside Default Entered June 2, 2022, Stipulation and [Proposed] Answer and Order, including the cited crucial statutes, case law and statewide rules. (See EXHIBIT C, a true 10 11 and correct copy of Mr. Rodriguez’ July 21, 2022 letter and Stipulation to Mr. Swanson attached 12 hereto and incorporated by this reference as though fully set forth here.) (Decl. of Justin P. 13 Rodriguez, § 24.) 14 Mr. Rodriguez’ proposed stipulation requested Mr. Swanson consent to accept 15 PRIMAVERA’S [Proposed] Answer while adding that the ex parte application would otherwise 16 serve as notice PRIMAVERA would seek ex parte relief on Monday, July 25, 2022 at 8:30 a.m. 17 in Department 17 seeking to shorten or extend the time to consider and hear PRIMAVERA’S 18 application to set aside the June 2, 2022 default and continue the July 28, 2022 continued Case 19 Management Conference. (Decl. of Justin P. Rodriguez, § 25.) 20 Mr. Swanson waited until September 9, 2022 to sign Mr. Rodriguez’ stipulation setting 21 aside Mr. Swanson’s premature default. (Register of Actions, 9/14/22.) 22 MR. SWANSON OBSTRUCTS DISCOVERY BY MISDIRECTING MAIL AWAY FROM MR. RODRIGUEZ PUBLISHED SERVICE ADDRESS OF RECORD. 23 24 On August 31, 2022, Mr. Rodriguez diligently served his First Sets of Inspection Requests, Form and Special Interrogatories and Requests for Admission on Mr. Swanson from 25 Mr. Rodriguez’ published service address of record: “JUSTICE LAW PARTNERS, 106% 26 Judge John Aiso St., #412, Los Angeles, CA 90012.” (Decl. of Justin P. Rodriguez, 427.) 27 6 28 PRIMAVERA JAUREGUI’S EX PARTE APPLICATION FOR ORDERS CONTINUING MARCH 4, 2024 TRIAL AND EXTENDING 30-DAY DISCOVERY CUT-OFF 120 DAYS On September 16, 2022, Mr. Swanson hastily served his first set of RFA’s, Form and Special Interrogatories and Request for Production to the wrong, incorrect non-designated satellite office address: “103 East Lemon Ave., Ste. 212, Monrovia, CA 91016.” (Decl. ofJustin P. Rodriguez, § 28.) On November 11, 2022, Mr. Rodriguez wrote his meet and confer regarding Mr. Swanson’s blanket, patently frivolous objections to Mr. Rodriguez’ August 31, 2022 Inspection requests. (Decl. of Justin P. Rodriguez, § 29.) (See EXHIBIT D, a true and correct copy of the November 11, 2022 letter attached hereto and incorporated by this reference as 10 though fully set forth iiere.) 11 Nevertheless, on November 18, 2022, Mr. Swanson continued to send his “meet and 12 confer” regarding Mr. Swanson’s misdirected September 16, 2022 discovery to the wrong 13 “Lemon Ave.” service address! (Decl. of Justin P. Rodriguez, { 30.) (See EXHIBIT E, a true 14 and correct copy of Mr. Swanson’s November 18, 2022 letter attached hereto and incorporated 15 by this reference as though fully set forth here.) 16 On November 25, 2022, Mr. Rodriguez told Mr. Swanson: 17 “Your 4-page November 18, 2002 ‘meet and confer’ letter was mistakenly 18 addressed to “/03 East Lemon Ave.” As you know, my correct, filed service 19 address in this case is “106 ¥% Judge John Aiso Street.” '! (Decl. of Justin P. 20 Rodriguez, { 31.) (See EXHIBIT F, a true and correct copy of Mr. Rodriguez’ 21 November 25, 2022 letter attached hereto and incorporated by this reference as though 22 fully set forth here.) 23 24 * Service is invalid if incorrect address and zip code used. (Moghaddam v. Bone (2006) 142 Cal.App.4th| 25 283, 288, 47 Cal.Rptr.3d 602, 606; Adimay v. Ruhl (2008) 160 Cal.App.4" 583,72 Cal.Rptr 926.) 26 27 1 28 PRIMAVERA JAUREGUI’S EX PARTE APPLICATION FOR ORDERS CONTINUING MARCH 4, 2024 TRIAL AND EXTENDING 30-DAY DISCOVERY CUT-OFF 120 DAYS On December 2, 2022 PRIMAVERA offered to accept, in exchange for mutual dismissals of the complaint and cross-complaint in this action, the sum of $159,500 in satisfaction of all claims for damages, costs and expenses, attorney fees and interest in this action, including her interest in the real property she held with CONTRERAS. (See EXHIBIT G, a true and correct copy of the December 2, 2022 Offer to Compromise attached hereto and incorporated by this reference as though fully set forth here.) On December 16, 2022, Mr. Rodriguez reminded Mr. Swanson to reply while retaining his right to compel Mr. Swanson to respond long before Mr. Swanson disclosed he wanted to withdraw from representing CONTRERAS. (Decl. of Justin P. Rodriguez, { 32.) 10 (See EXHIBIT H, a true and correct copy of Mr. Rodriguez’ December 16, 2022 letter attached 11 hereto and incorporated by this reference as though fully set forth here.) 12 MR. SWANSON’S FIRST MOTION TO BE RELIEVED AS COUNSEL 13 On February 1, 2023, Mr. Swanson filed his first Motion to Be Relieved as 14 CONTRERAS’ counsel without responding or acknowledging PRIMAVERA’S offer to 15 compromise. (Decl. of Justin P. Rodriguez, { 33.) 16 On or about February 14, 2023 I served Opposition to Mr. Swanson’s Motion to be 17 Relieved as Counsel. On February 21, 2023 Mr. Swanson served me his Reply claiming: 18 “Tn the declaration filed with the motion to be relieved in this matter, Mr. 19 Swanson stated that there was a material breakdown in the attorney-client 20 relationship resulting in the inability of counsel-of-record to continue 21 representation. The client (CONTRERAS) has been requested to signa 22 substitution of attorney form and has failed to do so.” (Emphasis added.) 23 (Swanson REPLY, pg. 3: 3-6.) (Decl. of Justin P. Rodriguez, 34.) 24 According to the Court’s February 28, 2023 8:51 a.m. Minute Order, Defense counsel 25 requested its Motion to be Relieved as Counsel to be “...dropped from calendar” without giving 26 Mr. Rodriguez notice. (Decl. of Justin P. Rodriguez, 35.) 27 On April 14, 2023 Mr. Rodriguez served PRIMAVERA’S Case Management Statement & 28 PRIMAVERA JAUREGUI’S EX PARTE APPLICATION FOR ORDERS CONTINUING MARCH 4, 2024 TRIAL AND EXTENDING 30-DAY DISCOVERY CUT-OFF 120 DAYS requesting “... a jury trial”; On August 16, 2023, Mr. Swanson was ordered to “...file pre-trial documents pursuant to LOCAL RULE 3.9” and meet and confer regarding/submit list of jury instructions. (Decl. of Justin P. Rodriguez, § 36.) Mr. Swanson never sent Mr. Rodriguez any pre-trial documents or offered to meet and confer regarding jury instructions. Instead, Mr. Swanson consumed the remaining discovery and trial preparation time to threaten frivolous discovery motions before again moving to be relieved as counsel (for 1/30/2024 hearing) to force CONTRERAS to represent himself, in pro per, at the February 2, 2024 MSC. (Decl. of Justin P. Rodriguez, 37.) In the meantime, Mr. Swanson forced PRIMAVERA to respond to speciously frivolous 10 discovery “meet and confers” he never intended to enforce: For example, on September 1, 2023 11 Mr. Rodriguez had to respond to Mr. Swanson’s purported August 21, 2023 “meet and confer”: 12 “we responded to your RFA” set number 1 on March 9, 2023.” 13 “We never received any of the discovery you purportedly served on “April 4, 14 2023.” 15 “... your eight-month delay to move to compel any further responses to the 16 same discovery Mr. Zhao served on January 27, 2023 has resulted in substantial 17 prejudice to Ms. Jauregui; For example, some of the documents requested never 18 existed or may have been destroyed or are no longer available so the Court has 19 cause to find by delaying you voluntarily waived the right to compel any response 20 and/or disclosure. (See Crippen v. Sup.Ct. (Kaiser) (1984) 159 Cal.App.3d 254, 21 260, 205 Cal.Rptr. 477, 480.) (See EXHIBIT I, a true and correct copy of Mr. Rodriguez’ 22 September 1, 2023letter attached hereto and incorporated by this reference as though fully set 23 forth here.) 24 On September 1 8, 2023, Mr. Rodriguez supplemented his September 1, 2023 response 25 with a 2-page reply seeking “...an amicable resolution of these issues ...to avoid your needless 26 threat of “...sanctions for fees and costs...” plainly unsupported under these curious 27 circumstances. (Decl. of Justin P. Rodriguez, { 38.) (See EXHIBIT J, a true and correct copy of 28 PRIMAVERA JAUREGUI’S EX PARTE APPLICATION FOR ORDERS CONTINUING MARCH 4, 2024 TRIAL AND EXTENDING 30-DAY DISCOVERY CUT-OFF 120 DAYS Mr. Rodriguez’ September 18, 2023 letter attached hereto and incorporated by this reference as though fully set forth here.) Nonetheless, on October 16, 2023, Mr. Swanson frivolously demanded I prepare “...verified discovery responses without any objections by November 7, 2023.” (Decl. of Justin P. Rodriguez, {| 39.) (See EXHIBIT K, a true and correct copy of Mr. Swanson’s October 16, 2023 letter attached hereto and incorporated by this reference as though fully set forth here.) MR. SWANSON’S SECOND MOTION TO BE RELIEVED AS COUNSEL On or about January 2, 2024, Mr. Swanson suddenly filed his second Motion to be Relieved as (CONTRERAS’) Counsel, set for January 30, 2024 hearing; This time Mr. 10 Rodriguez filed no opposition and did not appear fearing wasting more client time and resources 11 (Decl. of Justin P. Rodriguez, § 40.) 12 At the February 2, 2024 MSC, CONTRERAS appeared in pro per and abruptly 13 threatened to file “... bankruptcy” if the March 4, 2024 trial went forward apparently to conceal 14 assets and circumvent fair resolution of PRIMAVERA’S claims. I never received any notice of 15 ruling of Mr. Swanson’s Motion to be Relieved as Counsel or CONTRERAS’ Substitution of 16 Attorney.(Decl. of Justin P. Rodriguez, § 41.) 17 Around, February 2, 2024 the Lancaster Superior Court in Dept A-17 notified me I was 18 currently scheduled to defend Defendant, Jody Bianco, in an upcoming murder trial entitled 19 People v. Jody Bianco, Case #’s MA078519 #9AN06916 beginning February 13 as a 0-10. (Decl. 20 of Justin P. Rodriguez, { 42.) 21 Iam unable to prepare for both trials especially because of Mr. Swanson’s discharge, 22 discovery delays and CONTRERAS’ bankruptcy threat without a short 120-day trial and 23 discovery cut-off delay to prepare further discovery and take Mr. Contreras’ deposition 24 concerning his financial position in light of his February 2, 2024 threat that could greatly 25 prejudice my client’s litigation position and expected recovery. (Decl. of Justin P. Rodriguez, J 26 43.) 27 Mr. Contreras’ belated outburst about his purported financial position was a complete 10 28 PRIMAVERA JAUREGUI’S EX PARTE APPLICATION FOR ORDERS CONTINUING MARCH 4, 2024 TRIAL AND EXTENDING 30-DAY DISCOVERY CUT-OFF 120 DAYS surprise and PRIMAVERA and Mr. Rodriguez have no reason to believe CONTRERAS is entitled to lawfully receive U.S. bankruptcy protection. (Decl. of Justin P. Rodriguez, { 44.) 1 THE REC QUEST IS TIMELY. A continuance motion (or ex parte application) must be made “as soon as reasonably practical once the necessity for the continuance is discovered.” (Ca Rules of Court Rule 3.1332(b); see also Reales Investment, LLC v. Johnson (2020) 55 CASth 463, 469, 269 Cal.Rptr.3d at 530.) No other requests for continuance have been made and PRIMAVERA and Mr. Rodriguez 10 sought immediate relief as soon as practical after CONTRERA’S February 2, 2024 bankruptcy 11 warning. 12 Under these circumstances, there is abundant good cause warranting a continuance of the 13 March 4, 2024 trial date and reopening of discovery cut-off due to CONTRERAS’ threatened 14 bankruptcy, his attorney’s release and their repeated delays and failures to properly respond to 15 and serve discovery responses throughout this litigation, which resulted in PRIMAVERA and 16 her counsel incurring additional litigation expenses through no fault of their own. !! 17 2 CONCLUSION. 18 PRIMAVERA respectfully prays that the Court order the March 4, 2024 trial date and 19 30-day discovery cut-off be continued and extended at least (120) one-hundred twenty days to 20 allow PRIMAVERA additional time to serve further discovery and depose CONTRERAS about 21 their property and his current financial position given that PRIMAVERA never received 22 confirmation that CONTRERAS’S former counsel, Jeremy D. Swanson, communicated Ms. 23 Jauregui’s eminently reasonable December 2, 2022 $159,500 Code of Civil Procedure § 998 24 25 26 5 (See Decl. of Justin P. Rodriguez, {1 10-26, 33-35 misdirecting discovery/responses-withdrawing (2) 27 separate Motions to be Relieved as Counsel without notice.) 1 28 PRIMAVERA JAUREGUI’S EX PARTE APPLICATION FOR ORDERS CONTINUING MARCH 4, 2024 TRIAL AND EXTENDING 30-DAY DISCOVERY CUT-OFF 120 DAYS Offer to Compromise sent directly from Mr. Rodriguez’ proper and valid service address of record located at 106% Judge John Aiso St., #412, Los Angeles, CA 90012. DATED: February 7, 2024 JUSTIN PAUL RODRIGUEZ JUSTIN P. RODRIGUEZ, Attorney for Plaintiff and Cross- Defendant PRIMAVE) RA JAUREGUI // M H/ M/ 10 MH 11 12 M 13 M 14 // 15 // 16 // 17 M 18 19 / 20 // 21 // 22 / 23 M 24 25 // 26 27 12 28 PRIMAVERA JAUREGUI’S EX PARTE APPLICATION FOR ORDERS CONTINUING MARCH 4, 2024 “RIAL AND EXTENDING 30-DAY DISCOVERY CUT-OFF 120 DAYS DECLARATION OF JUSTIN P. RODRIGUEZ: NOTICE, GOOD CAUSE, IRREPERABLE HARM OR ANY OTHER STATUTORY BASIS FOR GRANTING RELIEF EX PARTE Justin P. Rodriguez, certifies and declares: 1 I am the attorney record for PRIMAVERA JAUREGUI in this action and I have personal knowledge of each fact stated in this declaration. 2 On November 18, 2022, Mr. Swanson continued to misdirect his discovery “meet and confer” letters and September 16, 2022 discovery to the wrong “Lemon Ave.” service address! 3 On November 25, 2022, I told Mr. Swanson: 10 “Your 4-page November 18, 2002 ‘meet and confer’ letter was mistakenly 11 addressed to “03 East Lemon Ave.” As you know, my correct, filed service 12 address, in this case is “106 % Judge John Aiso Street.” '*! (EXHIBIT F) 13 4 On February 1, 2023, Mr. Swanson filed his first Motion to Be Relieved as 14 CONTRERAS’ counsel without responding or acknowledging PRIMAVERA’S offer to 1S compromise. 16 5 On or about February 14, 2023 I served Opposition to Mr. Swanson’s initial 17 Motion to be Relieved as Counsel. 18 6 On February 21, 2023 Mr. Swanson served me his Reply claiming: 19 “In the declaration filed with the motion to be relieved in this matter, Mr. 20 Swanson stated that there was a material breakdown in the attorney-client 21 relationship resulting in the inability of counsel-of-record to continue 22 representation. The client (CONTRERAS) has been requested to signa 23 24 ° Service is invalid if incorrect address and zip code used. (Moghaddam v. Bone (2006) 142 Cal.App.4th 25 283, 288, 47 Cal.Rptr.3d 602, 606; Adimay v. Ruhl (2008) 160 Cal.App.4" 583,72 Cal.Rptr 926.) 26 27 13 28 PRIMAVERA JAUREGUI’S EX PARTE APPLICATION FOR ORDERS CONTINUING MARCH 4, 2024 TRIAL AND EXTENDING 30-DAY DISCOVERY CUT-OFF 120 DAYS substitution of attorney form and has failed to do so.” (Emphasis added.) (Swanson REPLY, pg. 3: 3-6.) 7. According to the Court’s February 28, 2023 8:51 a.m. Minute Order, Defense counsel requested its Motion to be Relieved as Counsel to be “...dropped from calendar”; I was never given notice or an opportunity to recover my expenses for filing opposition. 8 On April 14, 2023 I served PRIMAVERA’S Case Management Statement requesting “... a jury trial”; On August 16, 2023, Mr. Swanson was ordered to “...file pre-trial documents pursuant to LOCAL RULE 3.9” and meet and confer regarding/submit list of jury instructions. 10 9 I never received any pre-trial documents from Mr. Swanson and he never offered 11 to meet and confer regarding jury instructions. Instead, Mr. Swanson used the remaining 12 discovery and trial preparation time to threaten speciously frivolous discovery “meet and confer” 13 correspondence he later showed he never intended to enforce before he again moved to be 14 relieved as counsel (for 1/30/2024 hearing) then withdrew the motion; this resulted in 15 CONTRERAS representing himself, in pro per, at the February 2, 2024 MSC where 16 CONTRERAS, for the first time, threatened to file bankruptcy to intimidate my client if the 17 March 4, 2024 trial went forward. 18 10. In the meantime, Mr. Swanson forced me to respond to speciously frivolous 19 discovery “meet and confers” he never intended to pursue. For example, on September 1, 2023 I 20 responded to Mr. Swanson’s purported August 21, 2023 “meet and confer”: 21 “..we responded to your RFA” set number 1 on March 9, 2023.” 22 “We never received any of the discovery you purportedly served on “April 4, 23 2023.” 24 “... your eight-month delay to move to compel any further responses to the 25 same discovery Mr. Zhao served on January 27, 2023 has resulted in substantial 26 prejudice to Ms. Jauregui; For example, some of the documents requested never 27 existed or may have been destroyed or are no longer available so the Court has 14 28 PRIMAVERA JAUREGUI’S EX PARTE APPLICATION FOR ORDERS CONTINUING MARCH 4, 2024 TRIAL AND EXTENDING 30-DAY DISCOVERY CUT-OFF 120 DAYS cause to find by delaying you voluntarily waived the right to compel any response and/or disclosure. (See Crippen v. Sup.Ct. (Kaiser) (1984) 159 Cal.App.3d 254, 260, 2¢5 Cal.Rptr. 477, 480.) (See EXHIBIT I, a true and correct copy of my September 1, 2023 letter attached hereto and incorporated by this reference as though fully set forth here.) 11. I sought immediate relief as soon as practical after the February 2, 2024 MSC where CONTRERAS told the MSC judge and I he would file bankruptcy if the March 4, 2024 trial went forward. The judge told me as MSC judge he had no jurisdiction to orally continue the March 4, 2024 trial or extend the 30-day discovery cut-off at least 120 days so I brought this 10 application to protect PRIMAVERA’S property claims and to take further discovery regarding 11 CONTRERAS’ purported financial situation. 12 12. On February 7, 2024 around 11:20 a.m. I called (661) 342-5805 and left a 13 message for Mr. Contreras that my ex parte application would be made on February 9, 2024 at 14 8:30 a.m. in Department 17 of the Court located at 1415 Truxtun, Bakersfield, CA 93301 and to 15 let me know if he would agree to the continuance or oppose it. 16 13. On February 7, 2024 around 11:45 a.m. I transmitted to Mr. Jaime Davila 17 Contreras this ex parte application to continue the March 4, 2024 trial and extend the 30-day 18 discovery cut-off at least 120 days at jdavilatrucking140@outlookcom. 19 I declare under penalty of perjury under the laws of the State of California that the 20 foregoing is true and correct. 21 Dated: February 7, 2024 JUSTIN P. RODRIGUEZ 22 Justin P. Rodriguez 23 // 24 / 25 i 26 1 27 15 28 PRIMAVERA JAUREGUI’S EX PARTE APPLICATION FOR ORDERS CONTINUING MARCH 4, 2024 TRIAL AND EXTENDING 30-DAY DISCOVERY CUT-OFF 120 DAYS DECLARATION OF JUSTIN P. RODRIGUEZ IN SUPPORT OF PRIMAVERA JAUREGUPS EX PARTE APPLICATION FOR CONTINUANCE AND EXTENSION OF MARCH 4, 2024 TRIAL AND 30-DAY DISCOVERY CUT-OFF I, the undersigned, hereby declare that the facts set forth herein are true and of my own personal knowledge. I have first hand knowledge of the following facts and if called and sworn as a witness, I could and would testify competently thereto, as follows: 1 On September 2, 2021 PRIMAVERA filed her initial complaint through her first counsel, Elizabeth Yang, Esq. 2. On January 14, 2022 CONTRERAS demurred to PRIMAVERA’S complaint. 10 3 On January 24, 2022, defendant CONTRERAS filed a cross-complaint against 11 PRIMAVERA. 12 4 On April 18, 2022, Ms. Yang filed PRIMAVERA’S Second Amended Complaint 13 (SAC). 14 5 At an April 29, 2022 Case Management Conference, PRIMAVERA appeared 15 without counsel to notify the court and Jeremy Swanson about “... her plan is to retain new 16 counsel.” 17 6 The court immediately scheduled a July 28, 2022 Further Case Management 18 Conference “Re: Plaintiff to Retain new counsel”. 19 7 On May 19, 2022, Ms. Yang formally filed a Substitution of Attorney that Ms. 20 Yang served that day to Mr. Contreras’s attorney, Jeremy Swanson, Esq. 21 8. On May 19, 2022, PRIMAVERA became her own attorney of record, in pro per, > 22 by operation of law. 23 9. On May 26, 2022, Mr. Swanson filed CONTRERAS’ Answer to Ms. Yang’s 24 April 18, 2022 SAC but PRIMAVERA never received it. 25 10. On May 31, 2022, Mr. Swanson attempted to Request PRIMAVERA’S Entry of 26