Preview
1 JEFFREY E. TSAI (SBN 226081)
jeff.tsai@us.dlapiper.com
2 KATHLEEN S. KIZER (SBN 246035)
kathy.kizer@us.dlapiper.com
3
EMILY ROSE MARGOLIS (SBN 324089)
4 emily.margolis@us.dlapiper.com
DLA PIPER LLP (US)
5 555 Mission Street, Suite 2400
San Francisco, California 94105-2933
6 Tel: 415.836.2500 | Fax: 415.836.2501
7
Attorneys for Defendants
8 CELESTE WHITE, DR. ROBERT WHITE, and
THE VALLEY ROCK FOUNDATION
9
10
SUPERIOR COURT OF THE STATE OF CALIFORNIA
11
FOR THE COUNTY OF NAPA
12
13 LISA KEITH, an individual, CASE NO. 22CV001269
14 Plaintiff, DEFENDANTS’ OPPOSITION TO
PLAINTIFF’S SECOND EX PARTE
15 v. APPLICATION TO CONTINUE THE
CELESTE WHITE, an individual, ROBERT HEARING DATE FOR DEFENDANTS’
16 MOTION FOR SUMMARY JUDGMENT AND
WHITE, an individual, the VALLEY ROCK TRIAL
17 FOUNDATION, aka THE BAR 49
FOUNDATION, a charitable organization,
18 and DOES 1-50, INCLUSIVE, Date: February 15, 2024
Time: 11:30 a.m.
19 Defendants. Judge: Hon. Scott Young
Dept.: B
20
Complaint Filed: October 25, 2022
21 Trial Date: April 2, 2024
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25
26
27
28
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DEF.S’ OPPOSITION TO PLAINTIFF’S SECOND EX PARTE MOTION TO CONTINUE HEARING DATE FOR
DEF.S’ MOTION FOR SUMMARY JUDGMENT AND TRIAL CASE NO. 22CV001269
1 This is Plaintiff’s second attempt in two weeks to continue the hearing on Defendants’
2 motion for summary judgment (“MSJ”) and trial. Last week, on February 7,1 Judge Smith heard
3 Plaintiff’s first motion, at which Defendants’ attorney agreed to ensure that documents from third
4 party Singer Associates, Inc. (“Singer”) were produced to Plaintiff by the close of business on
5 February 8.2 That task was completed by mid-day on February 8 when Singer’s complete
6 production of more than 700 pages of documents was provided to Plaintiff. (Kizer Decl., ¶ 2.)
7 Plaintiff now argues for a continuance because she contends—based purely on speculation
8 and contrary to representations from Singer’s attorneys—that Singer has not produced all
9 documents responsive to Plaintiff’s subpoena. That is plainly incorrect, as counsel explained to
10 Plaintiff in recent correspondence. (See Kizer Decl., ¶ 7, Exs. 1, 2.) Singer has not withheld any
11 responsive documents. There is no basis for a motion to compel.
12 In addition to promptly receiving all of Singer’s documents, Plaintiff received an
13 additional week to complete her MSJ opposition when the Court moved the MSJ hearing from
14 March 1 to March 8, due to the Court’s unavailability on March 1. (See Kizer Decl., ¶ 2.) Despite
15 having an additional week (her opposition is now due on February 23) and having received on
16 February 8 all of Singer’s documents, Plaintiff again claims she cannot complete her MSJ
17 opposition even though she received all of Singer’s documents more than two weeks before her
18 opposition is due.
19 Plaintiff’s request to continue the MSJ hearing and trial lacks any justification. Defendants
20 oppose the request as any delay in resolving this lawsuit will only cause them further prejudice.
21
22
1
Plaintiff’s motion states the incorrect dates. Her previous ex parte motion to continue the MSJ hearing was
23 heard on February 7 – not February 6 – and Defendants’ counsel agreed to ensure production of Singer’s documents
by February 8 (not February 7), which was done. (See Kizer Decl., ¶ 2.)
24 2
Singer initially did not produce documents in response to Plaintiff’s subpoena because Defendants objected
25 to the untimely Consumer Records Notice that Plaintiff served on them in connection with that subpoena. Specifically,
Plaintiff failed to serve the Consumer Records Notice 10 days before serving the subpoena on Singer, as required by
26 Code of Civil Procedure sections 1985.3 and 1013, subdivision (a). Defendants’ objection to the untimely Consumer
Records Notice – and Singer’s nonproduction in light of that objection – does not represent “sharp practices” (Mot.
27 1:25) or “intentionally manufactured discovery delays with third party subpoenas” (Mot. 3:17) contrary to Plaintiff’s
accusations. Notably, Plaintiff’s counsel had similarly objected to an improper Consumer Records Notice that resulted
28 in third party Dominic Campisi not producing documents. (Kizer Decl., ¶ 3.)
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DEF.S’ OPPOSITION TO PLAINTIFF’S SECOND EX PARTE MOTION TO CONTINUE HEARING DATE FOR
DEF.S’ MOTION FOR SUMMARY JUDGMENT AND TRIAL CASE NO. 22CV001269
1 A. Plaintiff Does Not Make the Statutory Showing Required to Continue the
MSJ Hearing.
2
3 To obtain a continuance of the MSJ hearing, Plaintiff must show (1) “Facts establishing a
4 likelihood that controverting evidence may exist and why the information sought is essential to
5 opposing the motion”; (2) “The specific reasons why such evidence cannot be presented at the
6 present time”; (3) “An estimate of the time necessary to obtain such evidence”; and (4) “The
7 specific steps or procedures the opposing party intends to utilize to obtain such evidence.”
8 (Johnson v. Alameda County Medical Center (2012) 205 Cal.App.4th 521, 532 [emphasis in
9 original] [quoting Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter
10 Group 2011) ¶ 10:207.15, p. 10-83 (rev. # 1, 2011)] [denying continuance where party failed to
11 meet any of the required standards].) Additionally, Plaintiff must explain why that discovery
12 could not have been obtained earlier. (See Braganza v. Albertson’s LLC (2021) 67 Cal.App.5th
13 144, 152 [affirming denial of plaintiff’s request for continuance due to failure to show why
14 discovery could not have been undertaken earlier and noting split of authority regarding necessity
15 of showing diligence].)
16 Plaintiff again fails to satisfy any of these requirements.
17 1. Plaintiff cannot identify any information that is essential to her
opposition to Defendants’ MSJ.
18
19 Plaintiff bases her current request for a continuance on Singer’s purported “withholding”
20 of documents she claims she needs for her MSJ opposition. That argument is baseless as Singer
21 has produced all documents responsive to Plaintiff’s subpoena, as Singer’s counsel explained
22 repeatedly to Plaintiff’s counsel. (Kizer Decl., ¶¶ 5-7, Exs. 1, 2.)
23 Plaintiff’s motion refers to a reference to “nearly a hundred tweets” in Sam Singer’s
24 declaration (Mot. 5:4), but only one of those tweets pertained to the press release at issue in this
25 litigation, and Plaintiff already has that tweet in her possession—it was attached as Exhibit E to
26 both her Complaint and her First Amended Complaint. In any event, the fact that Singer issued
27 tweets on behalf of Defendants (about Defendants’ many business endeavors) does not mean that
28 Singer printed the tweets and subsequently “withheld” them from its production. Nor does the fact
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DEF.S’ OPPOSITION TO PLAINTIFF’S SECOND EX PARTE MOTION TO CONTINUE HEARING DATE FOR
DEF.S’ MOTION FOR SUMMARY JUDGMENT AND TRIAL CASE NO. 22CV001269
1 that Singer produced from its files “metrics” for other press releases that Singer issued on behalf
2 of Defendants mean that Singer withheld from production metrics for the press releases at issue in
3 this litigation. (Mot. 5:8-11.) Singer does not have any “metrics” for the press releases at issue in
4 its possession. (Kizer Decl., ¶ 7.) Plaintiff’s mere speculation, or her desire for such materials,
5 does not make them exist. Again, a motion to compel Singer has no merit as Singer has not
6 withheld any documents responsive to Plaintiff’s subpoena. And Defendants adamantly deny
7 Plaintiff’s unfounded accusation that they “colluded” with Singer to withhold discovery damaging
8 to their defense.
9 Plaintiff also complains about the manner in which Singer’s documents were produced to
10 Plaintiff. The complaint is irrelevant and much ado about nothing, and in any event, it has been
11 fully addressed. (See Kizer Decl., ¶¶ 5-9, 15, Exs. 2, 5.)
12 What is more, Plaintiff does not show how any of the documents that she speculates Singer
13 withheld are “essential” for her MSJ opposition. (See Code Civ. Proc., § 437c, subd. (h) [allowing
14 continuance where “facts essential to justify opposition may exist but cannot for reasons stated, be
15 presented”].) “It is not sufficient under the statute merely to indicate further discovery or
16 investigation is contemplated. The statute makes it a condition that the party moving for a
17 continuance show ‘facts essential to justify opposition may exist.’” (Cooksey v. Alexakis (2004)
18 123 Cal.App.4th 246, 254 [denying continuance where declarations did not contain “the
19 information necessary to require a continuance”] [citation omitted, emphasis added]; see also
20 Johnson, supra, 205 Cal.App.4th at 532 [“The party seeking the continuance must justify the need,
21 by detailing both the particular essential facts that may exist and the specific reasons why they
22 cannot then be presented.”] [citation omitted]). Accordingly, Plaintiff fails to meet the standard
23 required for continuing the MSJ hearing.
24 2. Plaintiff’s failure to obtain information is due to her own lack of
diligence.
25
26 Plaintiff’s failure to obtain earlier the discovery she now seeks is due to her own lack of
27 diligence. First, Plaintiff has known of Singer’s involvement since at least October 2022, when
28 she filed her Complaint, which explicitly identifies Singer. (See Complaint, ¶ 20 & Ex. F.)
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DEF.S’ OPPOSITION TO PLAINTIFF’S SECOND EX PARTE MOTION TO CONTINUE HEARING DATE FOR
DEF.S’ MOTION FOR SUMMARY JUDGMENT AND TRIAL CASE NO. 22CV001269
1 Waiting until December 27, 2023, to subpoena documents from Singer demonstrates a
2 fundamental lack of diligence.3
3 Plaintiff’s lack of diligence in pursuing discovery is not limited to Singer, which suggests
4 that her motion for continuance is a pretext to cover up her general failure to obtain discovery.
5 (See Kizer Decl., ¶¶ 10-14.) As another example, Defendants responded to voluminous written
6 discovery from Plaintiff nearly a year ago on March 8, 2023, which explained that Defendants
7 “retained public relations firm Platinum Advisors, which in turn hired Singer Associates, Inc., to
8 prepare the press release and to transmit the press release to news outlets for the purpose of trying
9 to correct the misinformation in the Napa Valley News Register article published in February
10 2018.” (Kizer Decl., ¶ 12, Ex. 3 [Responses to Form Interrogatories, p. 15].) Defendants also
11 produced documents on May 23, 2023, that included email communications with individuals
12 employed by Kenwood Investments LLC.4 Yet Plaintiff waited until this week to subpoena
13 Platinum Advisors LLC and its sister company, Kenwood Investments LLC. Plaintiff’s subpoenas
14 served on Platinum Advisors and Kenwood Investments call for depositions on March 4, which is
15 after the February 27 fact discovery cut-off in this case. (Kizer Decl., ¶ 14.) As yet another
16 example, Plaintiff issued five other subpoenas (to Business Wire, X Corp., Cision Inc, LinkedIn,
17 and Meta) within the last week, all of which too call for production of documents after the
18 February 27 fact discovery cut-off in this case. (Kizer Decl., ¶ 10.)
19 Clearly, Plaintiff has been dilatory in seeking discovery to pursue her claims. She waited
20 until December 27, 2023, to serve a subpoena on Singer despite knowledge of his involvement for
21 at least fourteen months prior. She likewise served seven more third-party subpoenas within the
22 past seven days, all of which violate the fact discovery cut-off. What’s more, Plaintiff’s counsel
23 has refused to respond to Defendants’ counsel’s repeated inquiries this week regarding scheduling
24 expert depositions in this case. (Kizer Decl., ¶ 15.) Plaintiff has all but granted herself the
25
26 3
Plaintiff’s claim to have “been attempting to serve the Subpoena on Singer Associates Inc. since September
of 2023” is wholly unsupported, as she has never provided a certificate of diligence from a process server, and the
27 representation is contradicted by the admissible evidence. (See Declaration of Sam Singer submitted herewith.)
4
28 Defendants’ May 2023 production also included all of Defendants’ communications with Singer.
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DEF.S’ OPPOSITION TO PLAINTIFF’S SECOND EX PARTE MOTION TO CONTINUE HEARING DATE FOR
DEF.S’ MOTION FOR SUMMARY JUDGMENT AND TRIAL CASE NO. 22CV001269
1 continuance that she seeks from the Court by brazenly flouting this Court’s deadlines while
2 stonewalling Defendants’ good faith efforts to move this case toward resolution. The Court should
3 deny the continuance to avoid prejudicing Defendants by Plaintiff’s lack of diligence.
4 B. The Court Lacks Discretion to Continue the MSJ Hearing Under the Facts
Presented Here.
5
6 While the Court has discretion to continue the MSJ hearing date, it cannot exercise that
7 discretion without factual justification set forth in an affidavit from Plaintiff. (Code Civ. Proc.,
8 § 437c, subd. (h) [identifying factors justifying continuing an MSJ]; see also Insalaco v. Hope
9 Lutheran Church of West Contra Costa County (2020) 49 Cal.App.5th 506, 518 [discussing
10 required affidavit].) “In exercising its discretion the court may properly consider the extent to
11 which the requesting party’s failure to secure the contemplated evidence more seasonably results
12 from a lack of diligence on his part.” (Rodriguez v. Oto (2013) 212 Cal.App.4th 1020, 1038.)
13 Plaintiff’s previous motion did not present a factual basis for the Court to exercise its
14 discretion and move the MSJ hearing date, and no new facts have arisen to support her current
15 motion. Instead, the facts now are even less supportive of Plaintiff’s request because she has now
16 been in receipt of Singer’s complete document production for seven days. The facts are clear that
17 Plaintiff did not conduct third party discovery with any diligence. (See Kizer Decl., ¶¶ 10-14.)
18 Plaintiff has had more than ample time to seek and obtain the discovery she now complains she
19 needs, and any lack of information is only a result of her own delay and cannot be attributed to any
20 other person’s conduct.
21 Most important, as explained above, Plaintiff cannot identify any evidence that may be
22 obtained from these third parties that is “essential” to her opposition. (Code Civ. Proc., § 437c,
23 subd. (h).)
24 C. The Court Should Not Continue the April 2nd Trial.
25 Plaintiff’s request to continue the trial should also be denied as Plaintiff cannot satisfy the
26 requirements for a trial continuance, nor does her application even attempt to do so. The California
27 Rules of Court provide that “the dates assigned for a trial are firm.” (Cal. R. Ct., R. 3.1332, subd.
28 (a).) Moreover, “[t]rial continuances are ‘disfavored’ and may be granted ‘only on an affirmative
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DEF.S’ OPPOSITION TO PLAINTIFF’S SECOND EX PARTE MOTION TO CONTINUE HEARING DATE FOR
DEF.S’ MOTION FOR SUMMARY JUDGMENT AND TRIAL CASE NO. 22CV001269
1 showing of good cause.’” (Reales Investment, LLC v. Johnson (2020) 55 Cal.App.5th 463, 468
2 [quoting Cal. Rules of Court, rule 3.1332(c)].) Indeed, the Delay Reduction Act directs judges to
3 “[c]ommence trials on the date scheduled” and “[a]dopt a firm, consistent policy against
4 continuances, to the maximum extent possible and reasonable.” (Gov. Code, § 68607, subds. (f),
5 (g).)
6 Plaintiff is required to make an “affirmative showing of good cause” for a trial continuance
7 of any length. “Circumstances that may indicate good cause include:
8 (1) The unavailability of an essential lay or expert witness because of death, illness, or
other excusable circumstances;
9 (2) The unavailability of a party because of death, illness, or other excusable
circumstances;
10
(3) The unavailability of trial counsel because of death, illness, or other excusable
11 circumstances;
(4) The substitution of trial counsel, but only where there is an affirmative showing that
12 the substitution is required in the interests of justice;
(5) The addition of a new party if:
13 (A) The new party has not had a reasonable opportunity to conduct discovery and
prepare for trial; or
14
(B) The other parties have not had a reasonable opportunity to conduct discovery
15 and prepare for trial in regard to the new party's involvement in the case;
(6) A party’s excused inability to obtain essential testimony, documents, or other
16 material evidence despite diligent efforts; or
(7) A significant, unanticipated change in the status of the case as a result of which the
17 case is not ready for trial.”
18
(Cal. Rules of Court, rule 3.1332(c).) Plaintiff does not and cannot show any of these or other
19
circumstances justify continuing the trial in this matter. Plaintiff fails to even address the required
20
showing to continue a trial date in her application, even though she seeks that very relief. This
21
failure alone is enough to deny Plaintiff’s request.
22
Additionally, in ruling on a motion for a trial continuance, “the court must consider all the
23
facts and circumstances that are relevant to the determination” including:
24
(1) The proximity of the trial date;
25 (2) Whether there was any previous continuance, extension of time, or delay of trial due
to any party;
26 (3) The length of the continuance requested;
(4) The availability of alternative means to address the problem that gave rise to the
27 motion or application for a continuance;
(5) The prejudice that parties or witnesses will suffer as a result of the continuance;
28
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DEF.S’ OPPOSITION TO PLAINTIFF’S SECOND EX PARTE MOTION TO CONTINUE HEARING DATE FOR
DEF.S’ MOTION FOR SUMMARY JUDGMENT AND TRIAL CASE NO. 22CV001269
1 (6) If the case is entitled to a preferential trial setting, the reasons for that status and
whether the need for a continuance outweighs the need to avoid delay;
2 (7) The court's calendar and the impact of granting a continuance on other pending trials;
(8) Whether trial counsel is engaged in another trial;
3
(9) Whether all parties have stipulated to a continuance;
4 (10) Whether the interests of justice are best served by a continuance, by the trial of the
matter, or by imposing conditions on the continuance; and
5 (11) Any other fact or circumstance relevant to the fair determination of the motion or
application.
6
7 (Cal. Rules of Court, rule 3.1332(c) [emphasis added].)
8 None of the foregoing or any other factors support continuing the trial in this matter.
9 Plaintiff filed this case sixteen months ago. Plaintiff undertook extensive discovery from
10 Defendants and, as explained above, did not pursue third party discovery with any diligence.
11 Defendants are eager to resolve this lawsuit and adamantly oppose any trial continuance.
12 Defendants did not choose to enter this litigation and have dutifully complied with all deadlines
13 since its inception. Any continuance of trial will result in increased costs and fees for both sides,
14 which would prejudice Defendants who seek prompt resolution of Plaintiff’s baseless claims.
15 Because Plaintiff identifies no facts justifying a trial continuance, the Court lacks
16 discretion to continue the trial in this matter. (See, e.g., Qaadir v. Figueroa (2021) 67 Cal.App.5th
17 790, 814 [finding no abuse of discretion in denying request for a trial continuance].) Plaintiff’s
18 request must be denied given her total failure to address, yet alone meet, the requisite showing.
19 D. Conclusion
20 Plaintiff’s failure to adequately plan and diligently pursue discovery does not justify
21 moving the March 8 MSJ hearing date or the April 2nd trial date. Accordingly, the Court should
22 deny the relief requested and keep the MSJ hearing on March 8, 2024 and the trial on April 2,
23 2024.
24
25 Dated: February 15, 2024 DLA PIPER LLP (US)
26
By:
27
Kathleen S. Kizer
28 Attorneys for Defendants
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DEF.S’ OPPOSITION TO PLAINTIFF’S SECOND EX PARTE MOTION TO CONTINUE HEARING DATE FOR
DEF.S’ MOTION FOR SUMMARY JUDGMENT AND TRIAL CASE NO. 22CV001269
Preview
1 JEFFREY E. TSAI (SBN 226081) jeff.tsai@us.dlapiper.com 2 KATHLEEN S. KIZER (SBN 246035) kathy.kizer@us.dlapiper.com 3 EMILY ROSE MARGOLIS (SBN 324089) 4 emily.margolis@us.dlapiper.com DLA PIPER LLP (US) 5 555 Mission Street, Suite 2400 San Francisco, California 94105-2933 6 Tel: 415.836.2500 | Fax: 415.836.2501 7 Attorneys for Defendants 8 CELESTE WHITE, DR. ROBERT WHITE, and THE VALLEY ROCK FOUNDATION 9 10 SUPERIOR COURT OF THE STATE OF CALIFORNIA 11 FOR THE COUNTY OF NAPA 12 13 LISA KEITH, an individual, CASE NO. 22CV001269 14 Plaintiff, DEFENDANTS’ OPPOSITION TO PLAINTIFF’S SECOND EX PARTE 15 v. APPLICATION TO CONTINUE THE CELESTE WHITE, an individual, ROBERT HEARING DATE FOR DEFENDANTS’ 16 MOTION FOR SUMMARY JUDGMENT AND WHITE, an individual, the VALLEY ROCK TRIAL 17 FOUNDATION, aka THE BAR 49 FOUNDATION, a charitable organization, 18 and DOES 1-50, INCLUSIVE, Date: February 15, 2024 Time: 11:30 a.m. 19 Defendants. Judge: Hon. Scott Young Dept.: B 20 Complaint Filed: October 25, 2022 21 Trial Date: April 2, 2024 22 23 24 25 26 27 28 -1- DEF.S’ OPPOSITION TO PLAINTIFF’S SECOND EX PARTE MOTION TO CONTINUE HEARING DATE FOR DEF.S’ MOTION FOR SUMMARY JUDGMENT AND TRIAL CASE NO. 22CV001269 1 This is Plaintiff’s second attempt in two weeks to continue the hearing on Defendants’ 2 motion for summary judgment (“MSJ”) and trial. Last week, on February 7,1 Judge Smith heard 3 Plaintiff’s first motion, at which Defendants’ attorney agreed to ensure that documents from third 4 party Singer Associates, Inc. (“Singer”) were produced to Plaintiff by the close of business on 5 February 8.2 That task was completed by mid-day on February 8 when Singer’s complete 6 production of more than 700 pages of documents was provided to Plaintiff. (Kizer Decl., ¶ 2.) 7 Plaintiff now argues for a continuance because she contends—based purely on speculation 8 and contrary to representations from Singer’s attorneys—that Singer has not produced all 9 documents responsive to Plaintiff’s subpoena. That is plainly incorrect, as counsel explained to 10 Plaintiff in recent correspondence. (See Kizer Decl., ¶ 7, Exs. 1, 2.) Singer has not withheld any 11 responsive documents. There is no basis for a motion to compel. 12 In addition to promptly receiving all of Singer’s documents, Plaintiff received an 13 additional week to complete her MSJ opposition when the Court moved the MSJ hearing from 14 March 1 to March 8, due to the Court’s unavailability on March 1. (See Kizer Decl., ¶ 2.) Despite 15 having an additional week (her opposition is now due on February 23) and having received on 16 February 8 all of Singer’s documents, Plaintiff again claims she cannot complete her MSJ 17 opposition even though she received all of Singer’s documents more than two weeks before her 18 opposition is due. 19 Plaintiff’s request to continue the MSJ hearing and trial lacks any justification. Defendants 20 oppose the request as any delay in resolving this lawsuit will only cause them further prejudice. 21 22 1 Plaintiff’s motion states the incorrect dates. Her previous ex parte motion to continue the MSJ hearing was 23 heard on February 7 – not February 6 – and Defendants’ counsel agreed to ensure production of Singer’s documents by February 8 (not February 7), which was done. (See Kizer Decl., ¶ 2.) 24 2 Singer initially did not produce documents in response to Plaintiff’s subpoena because Defendants objected 25 to the untimely Consumer Records Notice that Plaintiff served on them in connection with that subpoena. Specifically, Plaintiff failed to serve the Consumer Records Notice 10 days before serving the subpoena on Singer, as required by 26 Code of Civil Procedure sections 1985.3 and 1013, subdivision (a). Defendants’ objection to the untimely Consumer Records Notice – and Singer’s nonproduction in light of that objection – does not represent “sharp practices” (Mot. 27 1:25) or “intentionally manufactured discovery delays with third party subpoenas” (Mot. 3:17) contrary to Plaintiff’s accusations. Notably, Plaintiff’s counsel had similarly objected to an improper Consumer Records Notice that resulted 28 in third party Dominic Campisi not producing documents. (Kizer Decl., ¶ 3.) -2- DEF.S’ OPPOSITION TO PLAINTIFF’S SECOND EX PARTE MOTION TO CONTINUE HEARING DATE FOR DEF.S’ MOTION FOR SUMMARY JUDGMENT AND TRIAL CASE NO. 22CV001269 1 A. Plaintiff Does Not Make the Statutory Showing Required to Continue the MSJ Hearing. 2 3 To obtain a continuance of the MSJ hearing, Plaintiff must show (1) “Facts establishing a 4 likelihood that controverting evidence may exist and why the information sought is essential to 5 opposing the motion”; (2) “The specific reasons why such evidence cannot be presented at the 6 present time”; (3) “An estimate of the time necessary to obtain such evidence”; and (4) “The 7 specific steps or procedures the opposing party intends to utilize to obtain such evidence.” 8 (Johnson v. Alameda County Medical Center (2012) 205 Cal.App.4th 521, 532 [emphasis in 9 original] [quoting Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter 10 Group 2011) ¶ 10:207.15, p. 10-83 (rev. # 1, 2011)] [denying continuance where party failed to 11 meet any of the required standards].) Additionally, Plaintiff must explain why that discovery 12 could not have been obtained earlier. (See Braganza v. Albertson’s LLC (2021) 67 Cal.App.5th 13 144, 152 [affirming denial of plaintiff’s request for continuance due to failure to show why 14 discovery could not have been undertaken earlier and noting split of authority regarding necessity 15 of showing diligence].) 16 Plaintiff again fails to satisfy any of these requirements. 17 1. Plaintiff cannot identify any information that is essential to her opposition to Defendants’ MSJ. 18 19 Plaintiff bases her current request for a continuance on Singer’s purported “withholding” 20 of documents she claims she needs for her MSJ opposition. That argument is baseless as Singer 21 has produced all documents responsive to Plaintiff’s subpoena, as Singer’s counsel explained 22 repeatedly to Plaintiff’s counsel. (Kizer Decl., ¶¶ 5-7, Exs. 1, 2.) 23 Plaintiff’s motion refers to a reference to “nearly a hundred tweets” in Sam Singer’s 24 declaration (Mot. 5:4), but only one of those tweets pertained to the press release at issue in this 25 litigation, and Plaintiff already has that tweet in her possession—it was attached as Exhibit E to 26 both her Complaint and her First Amended Complaint. In any event, the fact that Singer issued 27 tweets on behalf of Defendants (about Defendants’ many business endeavors) does not mean that 28 Singer printed the tweets and subsequently “withheld” them from its production. Nor does the fact -3- DEF.S’ OPPOSITION TO PLAINTIFF’S SECOND EX PARTE MOTION TO CONTINUE HEARING DATE FOR DEF.S’ MOTION FOR SUMMARY JUDGMENT AND TRIAL CASE NO. 22CV001269 1 that Singer produced from its files “metrics” for other press releases that Singer issued on behalf 2 of Defendants mean that Singer withheld from production metrics for the press releases at issue in 3 this litigation. (Mot. 5:8-11.) Singer does not have any “metrics” for the press releases at issue in 4 its possession. (Kizer Decl., ¶ 7.) Plaintiff’s mere speculation, or her desire for such materials, 5 does not make them exist. Again, a motion to compel Singer has no merit as Singer has not 6 withheld any documents responsive to Plaintiff’s subpoena. And Defendants adamantly deny 7 Plaintiff’s unfounded accusation that they “colluded” with Singer to withhold discovery damaging 8 to their defense. 9 Plaintiff also complains about the manner in which Singer’s documents were produced to 10 Plaintiff. The complaint is irrelevant and much ado about nothing, and in any event, it has been 11 fully addressed. (See Kizer Decl., ¶¶ 5-9, 15, Exs. 2, 5.) 12 What is more, Plaintiff does not show how any of the documents that she speculates Singer 13 withheld are “essential” for her MSJ opposition. (See Code Civ. Proc., § 437c, subd. (h) [allowing 14 continuance where “facts essential to justify opposition may exist but cannot for reasons stated, be 15 presented”].) “It is not sufficient under the statute merely to indicate further discovery or 16 investigation is contemplated. The statute makes it a condition that the party moving for a 17 continuance show ‘facts essential to justify opposition may exist.’” (Cooksey v. Alexakis (2004) 18 123 Cal.App.4th 246, 254 [denying continuance where declarations did not contain “the 19 information necessary to require a continuance”] [citation omitted, emphasis added]; see also 20 Johnson, supra, 205 Cal.App.4th at 532 [“The party seeking the continuance must justify the need, 21 by detailing both the particular essential facts that may exist and the specific reasons why they 22 cannot then be presented.”] [citation omitted]). Accordingly, Plaintiff fails to meet the standard 23 required for continuing the MSJ hearing. 24 2. Plaintiff’s failure to obtain information is due to her own lack of diligence. 25 26 Plaintiff’s failure to obtain earlier the discovery she now seeks is due to her own lack of 27 diligence. First, Plaintiff has known of Singer’s involvement since at least October 2022, when 28 she filed her Complaint, which explicitly identifies Singer. (See Complaint, ¶ 20 & Ex. F.) -4- DEF.S’ OPPOSITION TO PLAINTIFF’S SECOND EX PARTE MOTION TO CONTINUE HEARING DATE FOR DEF.S’ MOTION FOR SUMMARY JUDGMENT AND TRIAL CASE NO. 22CV001269 1 Waiting until December 27, 2023, to subpoena documents from Singer demonstrates a 2 fundamental lack of diligence.3 3 Plaintiff’s lack of diligence in pursuing discovery is not limited to Singer, which suggests 4 that her motion for continuance is a pretext to cover up her general failure to obtain discovery. 5 (See Kizer Decl., ¶¶ 10-14.) As another example, Defendants responded to voluminous written 6 discovery from Plaintiff nearly a year ago on March 8, 2023, which explained that Defendants 7 “retained public relations firm Platinum Advisors, which in turn hired Singer Associates, Inc., to 8 prepare the press release and to transmit the press release to news outlets for the purpose of trying 9 to correct the misinformation in the Napa Valley News Register article published in February 10 2018.” (Kizer Decl., ¶ 12, Ex. 3 [Responses to Form Interrogatories, p. 15].) Defendants also 11 produced documents on May 23, 2023, that included email communications with individuals 12 employed by Kenwood Investments LLC.4 Yet Plaintiff waited until this week to subpoena 13 Platinum Advisors LLC and its sister company, Kenwood Investments LLC. Plaintiff’s subpoenas 14 served on Platinum Advisors and Kenwood Investments call for depositions on March 4, which is 15 after the February 27 fact discovery cut-off in this case. (Kizer Decl., ¶ 14.) As yet another 16 example, Plaintiff issued five other subpoenas (to Business Wire, X Corp., Cision Inc, LinkedIn, 17 and Meta) within the last week, all of which too call for production of documents after the 18 February 27 fact discovery cut-off in this case. (Kizer Decl., ¶ 10.) 19 Clearly, Plaintiff has been dilatory in seeking discovery to pursue her claims. She waited 20 until December 27, 2023, to serve a subpoena on Singer despite knowledge of his involvement for 21 at least fourteen months prior. She likewise served seven more third-party subpoenas within the 22 past seven days, all of which violate the fact discovery cut-off. What’s more, Plaintiff’s counsel 23 has refused to respond to Defendants’ counsel’s repeated inquiries this week regarding scheduling 24 expert depositions in this case. (Kizer Decl., ¶ 15.) Plaintiff has all but granted herself the 25 26 3 Plaintiff’s claim to have “been attempting to serve the Subpoena on Singer Associates Inc. since September of 2023” is wholly unsupported, as she has never provided a certificate of diligence from a process server, and the 27 representation is contradicted by the admissible evidence. (See Declaration of Sam Singer submitted herewith.) 4 28 Defendants’ May 2023 production also included all of Defendants’ communications with Singer. -5- DEF.S’ OPPOSITION TO PLAINTIFF’S SECOND EX PARTE MOTION TO CONTINUE HEARING DATE FOR DEF.S’ MOTION FOR SUMMARY JUDGMENT AND TRIAL CASE NO. 22CV001269 1 continuance that she seeks from the Court by brazenly flouting this Court’s deadlines while 2 stonewalling Defendants’ good faith efforts to move this case toward resolution. The Court should 3 deny the continuance to avoid prejudicing Defendants by Plaintiff’s lack of diligence. 4 B. The Court Lacks Discretion to Continue the MSJ Hearing Under the Facts Presented Here. 5 6 While the Court has discretion to continue the MSJ hearing date, it cannot exercise that 7 discretion without factual justification set forth in an affidavit from Plaintiff. (Code Civ. Proc., 8 § 437c, subd. (h) [identifying factors justifying continuing an MSJ]; see also Insalaco v. Hope 9 Lutheran Church of West Contra Costa County (2020) 49 Cal.App.5th 506, 518 [discussing 10 required affidavit].) “In exercising its discretion the court may properly consider the extent to 11 which the requesting party’s failure to secure the contemplated evidence more seasonably results 12 from a lack of diligence on his part.” (Rodriguez v. Oto (2013) 212 Cal.App.4th 1020, 1038.) 13 Plaintiff’s previous motion did not present a factual basis for the Court to exercise its 14 discretion and move the MSJ hearing date, and no new facts have arisen to support her current 15 motion. Instead, the facts now are even less supportive of Plaintiff’s request because she has now 16 been in receipt of Singer’s complete document production for seven days. The facts are clear that 17 Plaintiff did not conduct third party discovery with any diligence. (See Kizer Decl., ¶¶ 10-14.) 18 Plaintiff has had more than ample time to seek and obtain the discovery she now complains she 19 needs, and any lack of information is only a result of her own delay and cannot be attributed to any 20 other person’s conduct. 21 Most important, as explained above, Plaintiff cannot identify any evidence that may be 22 obtained from these third parties that is “essential” to her opposition. (Code Civ. Proc., § 437c, 23 subd. (h).) 24 C. The Court Should Not Continue the April 2nd Trial. 25 Plaintiff’s request to continue the trial should also be denied as Plaintiff cannot satisfy the 26 requirements for a trial continuance, nor does her application even attempt to do so. The California 27 Rules of Court provide that “the dates assigned for a trial are firm.” (Cal. R. Ct., R. 3.1332, subd. 28 (a).) Moreover, “[t]rial continuances are ‘disfavored’ and may be granted ‘only on an affirmative -6- DEF.S’ OPPOSITION TO PLAINTIFF’S SECOND EX PARTE MOTION TO CONTINUE HEARING DATE FOR DEF.S’ MOTION FOR SUMMARY JUDGMENT AND TRIAL CASE NO. 22CV001269 1 showing of good cause.’” (Reales Investment, LLC v. Johnson (2020) 55 Cal.App.5th 463, 468 2 [quoting Cal. Rules of Court, rule 3.1332(c)].) Indeed, the Delay Reduction Act directs judges to 3 “[c]ommence trials on the date scheduled” and “[a]dopt a firm, consistent policy against 4 continuances, to the maximum extent possible and reasonable.” (Gov. Code, § 68607, subds. (f), 5 (g).) 6 Plaintiff is required to make an “affirmative showing of good cause” for a trial continuance 7 of any length. “Circumstances that may indicate good cause include: 8 (1) The unavailability of an essential lay or expert witness because of death, illness, or other excusable circumstances; 9 (2) The unavailability of a party because of death, illness, or other excusable circumstances; 10 (3) The unavailability of trial counsel because of death, illness, or other excusable 11 circumstances; (4) The substitution of trial counsel, but only where there is an affirmative showing that 12 the substitution is required in the interests of justice; (5) The addition of a new party if: 13 (A) The new party has not had a reasonable opportunity to conduct discovery and prepare for trial; or 14 (B) The other parties have not had a reasonable opportunity to conduct discovery 15 and prepare for trial in regard to the new party's involvement in the case; (6) A party’s excused inability to obtain essential testimony, documents, or other 16 material evidence despite diligent efforts; or (7) A significant, unanticipated change in the status of the case as a result of which the 17 case is not ready for trial.” 18 (Cal. Rules of Court, rule 3.1332(c).) Plaintiff does not and cannot show any of these or other 19 circumstances justify continuing the trial in this matter. Plaintiff fails to even address the required 20 showing to continue a trial date in her application, even though she seeks that very relief. This 21 failure alone is enough to deny Plaintiff’s request. 22 Additionally, in ruling on a motion for a trial continuance, “the court must consider all the 23 facts and circumstances that are relevant to the determination” including: 24 (1) The proximity of the trial date; 25 (2) Whether there was any previous continuance, extension of time, or delay of trial due to any party; 26 (3) The length of the continuance requested; (4) The availability of alternative means to address the problem that gave rise to the 27 motion or application for a continuance; (5) The prejudice that parties or witnesses will suffer as a result of the continuance; 28 -7- DEF.S’ OPPOSITION TO PLAINTIFF’S SECOND EX PARTE MOTION TO CONTINUE HEARING DATE FOR DEF.S’ MOTION FOR SUMMARY JUDGMENT AND TRIAL CASE NO. 22CV001269 1 (6) If the case is entitled to a preferential trial setting, the reasons for that status and whether the need for a continuance outweighs the need to avoid delay; 2 (7) The court's calendar and the impact of granting a continuance on other pending trials; (8) Whether trial counsel is engaged in another trial; 3 (9) Whether all parties have stipulated to a continuance; 4 (10) Whether the interests of justice are best served by a continuance, by the trial of the matter, or by imposing conditions on the continuance; and 5 (11) Any other fact or circumstance relevant to the fair determination of the motion or application. 6 7 (Cal. Rules of Court, rule 3.1332(c) [emphasis added].) 8 None of the foregoing or any other factors support continuing the trial in this matter. 9 Plaintiff filed this case sixteen months ago. Plaintiff undertook extensive discovery from 10 Defendants and, as explained above, did not pursue third party discovery with any diligence. 11 Defendants are eager to resolve this lawsuit and adamantly oppose any trial continuance. 12 Defendants did not choose to enter this litigation and have dutifully complied with all deadlines 13 since its inception. Any continuance of trial will result in increased costs and fees for both sides, 14 which would prejudice Defendants who seek prompt resolution of Plaintiff’s baseless claims. 15 Because Plaintiff identifies no facts justifying a trial continuance, the Court lacks 16 discretion to continue the trial in this matter. (See, e.g., Qaadir v. Figueroa (2021) 67 Cal.App.5th 17 790, 814 [finding no abuse of discretion in denying request for a trial continuance].) Plaintiff’s 18 request must be denied given her total failure to address, yet alone meet, the requisite showing. 19 D. Conclusion 20 Plaintiff’s failure to adequately plan and diligently pursue discovery does not justify 21 moving the March 8 MSJ hearing date or the April 2nd trial date. Accordingly, the Court should 22 deny the relief requested and keep the MSJ hearing on March 8, 2024 and the trial on April 2, 23 2024. 24 25 Dated: February 15, 2024 DLA PIPER LLP (US) 26 By: 27 Kathleen S. Kizer 28 Attorneys for Defendants -8- DEF.S’ OPPOSITION TO PLAINTIFF’S SECOND EX PARTE MOTION TO CONTINUE HEARING DATE FOR DEF.S’ MOTION FOR SUMMARY JUDGMENT AND TRIAL CASE NO. 22CV001269