Preview
1 Shahrad Milanfar (SBN 201126)
Donavon Sawyer (SBN 302560)
2 BECHERER KANNETT & SCHWEITZER
1255 Powell Street E-FILED
3 Emeryville, California 94608 9/30/2019 12:38 PM
Telephone: (510) 658-3600 Superior Court of California
4 County of Fresno
Facsimile: (510) 658-1151
5 By: J. Nelson, Deputy
Attorneys for Defendants
6 RAYMOND ERNEST ELLIS, SCHRACK DRILLING CO,
JIM SCHRACK and LINDA SCHRACK
7
8 SUPERIOR COURT OF THE STATE OF CALIFORNIA
9 IN AND FOR THE COUNTY OF FRESNO
10
11 JEREMIAH DAUGHERTY, an individual; CASE NO. 16CECG03568
12 Plaintiff,
MEMORANDUM OF POINTS AND
13 vs. AUTHORITIES IN SUPPORT OF
DEFENDANTS’ EX PARTE
14 APPLICATION TO CONTINUE TRIAL
RAYMOND ERNEST ELLIS, an individual;
15 SCHRACK DRILLING CO, a business entity
form unknown; JIM SCHRACK dba SCHRACK Date: October 1, 2019
16 DRILLING CO; LINDA SCHRACK dba Time: 3:30 p.m.
SCHRACK DRILLING CO; and DOES 1 Dept.: 502
17 through 20, Inclusive; Judge: Hon. Donald Black
18 Defendants. Complaint Filed: November 3, 2016
19 Trial Date: October 30, 2019
20 I. INTRODUCTION
21 This case arises from an alleged motor vehicle accident that occurred on December 8,
22 2014, in Selma, California, as Plaintiff Jeremiah Daugherty (hereinafter “Mr. Daugherty”) was
23 approaching the intersection of Manning Avenue and McCall Avenue. Specifically, Plaintiff
Becherer
Kannett &
24 alleges in his Complaint that Defendant’s driver negligently operated an automobile in a manner
Schweitzer
________ 25 that caused it to collide with his automobile, thereby causing him to sustain personal injuries and
1255
Powell St.
26
Emeryville, CA damages. Plaintiff claims he sustained unresolved injuries as a result of the alleged accident. See
94608
510-658-3600
27 Declaration of Donavon Sawyer ¶ 3 (hereinafter “Decl. of D. Sawyer”). Plaintiff’s Complaint was
28 filed on November 3, 2016. [Decl. of D. Sawyer ¶ 4; Exhibit “1”.] This will be Defendants’ first
1
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS’
EX PARTE APPLICATION TO CONTINUE TRIAL
1 ex parte appearance seeking a trial continuance in this case. [Decl. of D. Sawyer ¶ 5.] On
2 September 4, 2019, Plaintiff’s counsel indicated he would not be opposed to a two-week trial
3 continuance or a trial continuance to any date falling after January 20, 2020. [Decl. of D. Sawyer
4 ¶ 6; Exhibit “2”, p.5] On September 26, 2019, Plaintiff’s counsel indicated he would not stipulate
5 to Defendants’ anticipated ex parte application to continue trial. [Decl. of D. Sawyer ¶ 6; Exhibit
6 “2”, pp.1 – 2.] Defendants request a trial continuance due to the unavailability of an essential lay
7 witness and unanticipated calendaring complications, primarily caused by Plaintiff’s counsel’s
8 unnecessary delay, Defendants seek a trial continuance to a date no earlier than March 3, 2020.
9 [Decl. of D. Sawyer ¶ 7.]
10 II. FACTUAL BACKGROUND
11 Plaintiff claims he sustained injury after Defendant’s driver, Raymond Ellis, operated and
12 caused a vehicle to collide with his vehicle on December 8, 2014. Specifically, Plaintiff claims
13 he sustained physically debilitating injuries which required him to undergo a posterior spinal
14 lumbar fusion at the L5-S1 level on April 19, 2018. Defendants dispute the nature and extent of
15 Plaintiff’s alleged injuries and contend the subject accident did not necessitate he undergo various
16 forms of medical treatment such as the aforementioned April 19, 2018 surgery.
17 On June 10, 2019, Defense counsel deposed lay witness Randy Whited. Mr. Whited
18 testified that he was the weight training instructor for Plaintiff Jeremiah Daugherty at Reedley
19 College approximately one month after the subject motor vehicle accident. Mr. Whited also
20 provided testimony as to his custom and practice instructing and overseeing students such as
21 Plaintiff and his interpretation of Plaintiff’s academic grades within the aforementioned weight
22 training course. Mr. Whited testified about the various exercises he taught students within his
23 college weight training course, and he opined as to the physical capabilities he required from
Becherer
24 students who enrolled in said course, such as Plaintiff. [Decl. of D. Sawyer ¶ 8.]
Kannett &
Schweitzer
________ 25 On June 15, 2019, Plaintiff made an ex parte appearance requesting a trial continuance
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Powell St.
26
Emeryville, CA
primarily due to the unavailability of Plaintiff’s lead trial counsel. Plaintiff’s ex parte relief was
94608
510-658-3600
27 granted, and the Court continued trial to the current October 30, 2019 trial date. [Decl. of D.
28 Sawyer ¶ 9; Exhibit “3”.]
2
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS’
EX PARTE APPLICATION TO CONTINUE TRIAL
1 On July 1, 2019, defense counsel informed Mr. Whited of the new October 30, 2019 trial
2 date. Thereafter, Mr. Whited indicated the new October trial date conflicted with a prepaid trip to
3 Barcelona, Spain which would require him to be out of the country from October 27, 2019 to
4 November 11, 2019. [Decl. of D. Sawyer ¶ 10; Exhibit “4”.] In consideration of understanding ex
5 parte relief for a trial continuance would need to be sought due to Mr. Whited’s unavailability,
6 Defendants served Plaintiff with a 998 Offer to Compromise amounting to $110,000 on July 18,
7 2019, in an attempt to resolve this case before trial. When Plaintiff’s last day to accept
8 Defendants’ 998 Offer to Compromise passed without resolution of the case, defense counsel
9 informed Plaintiff’s counsel telephonically and via email correspondence of Mr. Whited’s
10 unavailability and discussed the feasibility of continuing trial. [Decl. of D. Sawyer ¶ 11; Exhibit
11 “2”, p.8.] Defense counsel and Plaintiff’s counsel agreed it may be possible to continue trial one
12 week, but that would require parties to speculate as to how slowly and/or quickly trial would
13 move along before Mr. Whited’s returns to California. Alternatively, Plaintiff’s counsel advised
14 that Plaintiff Jeremiah Daugherty will be out of the country on a prepaid trip from November 15
15 to mid-January, and as a result, counsel would not oppose a ex parte trial continuance requesting
16 trial be move to any date after January 20, 2020. In fact, Plaintiff’s counsel stated it would be best
17 if trial was continued to a date after January 20, 2020. Id. at pp. 5–7.
18 On June 25, 2019, Plaintiff’s counsel deposed Defendants’ medical billing expert Nancy
19 Michalski, R.N., but he was unable to finish deposing Ms. Michalski due to her unanticipated
20 time constraints. As such, defense counsel agreed to make Ms. Michalski available to be deposed
21 a second time. [Decl. of D. Sawyer ¶ 12.] From June 28, 2019 to September 20, 2019, Defense
22 counsel made approximately ten individual requests to Plaintiff’s counsel for his availability to
23 move forward with the second deposition of Ms. Michalski. [Decl. of D. Sawyer ¶ 13; Exhibit
Becherer
24 “5”.] On September 26, 2019, Plaintiff’s counsel provided a date of his availability to depose Ms.
Kannett &
Schweitzer
________ 25 Michalski; however, it is defense counsel’s understanding that said date is no longer available due
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Powell St.
26
Emeryville, CA
Ms. Michalski’s limited availability and counsel’s delay in securing a date. Id. at pp. 10–12.
94608
510-658-3600
27 Since June of 2018, defense counsel has attempted to depose Ms. Daugherty. In response
28 to Defendants’ attempt to notice Ms. Daugherty’s deposition, Plaintiff’s counsel’s office stated it
3
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS’
EX PARTE APPLICATION TO CONTINUE TRIAL
1 had some form of contact with Ms. Laura Daugherty, accepted service of her noticed deposition,
2 objected to her unilaterally noticed deposition on her behalf, indicated her availability in June of
3 2019 was limited, and proposed we coordinate a date to depose her on the same day as Mr. Jim
4 Schrack and Mrs. Linda Schrack. [Decl. of D. Sawyer ¶ 14; Exhibit “6”.] On September 26, 2019,
5 Plaintiff’s counsel unexpectedly indicated he never established communication with Ms.
6 Daugherty and proposed that Defendant subpoena her to be deposed. On September 27, 2019,
7 Plaintiff’s counsel directed meet and confer communication to defense counsel clarifying he
8 established contact with Ms. Daugherty and provided a date of her availability. At this juncture,
9 defense counsel has not confirmed its availability to depose Ms. Daugherty as it is also attempting
10 to confirm the availability of its clients Jim Schrack and Linda Schrack’s availability to be
11 deposed on the same day. [Decl. of D. Sawyer ¶ 15; Exhibit “2”, pp. 1–2.; Exhibit “7”.]
12 Without a trial continuance, Defendants will be unable to call Mr. Whited as a critical trial
13 witness who can show that plaintiff was taking weight training while claiming to suffer from a
14 major spinal injury. Without Mr. Whited, the jury will be unable to obtain the necessary insight as
15 to Plaintiff’s physical condition in close proximity to the subject accident. The defense is
16 significantly negatively impacted if a jury is not able to hear from Mr. Whited in person because
17 he is one of the few lay witnesses in this case who can definitively be categorized as an unbiased
18 witness and can provide testimony concerning Plaintiff’s physical condition in such close
19 proximity to the subject accident. Simply reading Mr. Whited’s deposition testimony to a jury
20 will limit the substance and effect of his testimony. Consequently, Defendants will be
21 significantly prejudiced in defending themselves against Plaintiff’s claims for damages if trial is
22 not continued to allow Mr. Whited to make himself available for trial. Furthermore, defense
23 counsel has been working with plaintiff’s counsel because of the representation that he was
Becherer
24 amenable to moving the trial date. His position changed on September 26, 2019 which
Kannett &
Schweitzer
________ 25 necessitated this ex parte application. [Decl. of D. Sawyer ¶ 16.]
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Powell St.
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Emeryville, CA
A trial continuance to a date after March 3, 2020 is appropriate in consideration of
94608
510-658-3600
27 Plaintiff Jeremiah Daugherty’s prepaid trip out of the country. Defense’s trial counsel, Shahrad
28 Milanfar, Esq. is respectively scheduled for trial on February 5, 2020 and March 23, 2020, in two
4
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS’
EX PARTE APPLICATION TO CONTINUE TRIAL
1 separate matters. Mr. Milanfar is also scheduled for an October 8, 2019 trial in Los Angeles
2 which appears will overlap with the currently scheduled October 30, 2019 trial in this case.
3 Moreover, a trial continuance after this date will give counsel sufficient time to coordinate the
4 second deposition of Defendants’ medical billing expert, Nancy Michalski, RN, and obtain
5 alternative dates to move forward with the deposition of Ms. Laura Daugherty, Linda Schrack,
6 and Jim Schrack. In consideration of defense counsel’s numerous unsuccessful attempts to
7 coordinate the depositions of the aforementioned witnesses with Plaintiff’s counsel, Defendants
8 respectfully request the Court continue trial and avoid causing any unnecessary inconvenience to
9 Ms. Michalski and defense counsel’s ability to obtain deposition testimony from Ms. Laura
10 Daugherty. [Decl. of D. Sawyer ¶ 17.]
11 California Rules of Court, rule 3.1332(b) states in pertinent part: “A party seeking a
12 continuance of the date set for trial, whether contested or uncontested or stipulated to by the
13 parties, must make the request for a continuance by a noticed motion or an ex parte application . .
14 .” (emphasis added). The Court must consider “all the facts and circumstances that are relevant to
15 the determination.”1 Rule 3.1332(c)(d) further provides that grounds for continuance include:
16 (3) The unavailability of essential lay or expert witnesses because of
17 death, illness, or other excusable circumstances;
18 (6) A party's excused inability to obtain essential testimony,
19 documents, or other material evidence despite diligent efforts;
20 (9) Whether all parties have stipulated to a continuance.
21 In Oliveros v. County of Los Angeles (2004) 120 Cal.App.4th 1389, 1396 the Court of
22 Appeal held that:
23 While it is true that a trial judge must have control of the courtroom and its
calendar…absent a lack of diligence or other abusive circumstances which are not
Becherer
Kannett &
24 present in this case, a request for a continuance supported by a showing of good
Schweitzer cause usually ought to be granted.
________ 25
1255
Powell St.
26
Emeryville, CA
There are no abusive circumstances present in this case. Rather, this continuance request
94608
510-658-3600
27 falls squarely within Rules of Court, Rule 3.1332(c)(3), (6), Rule 3.1332(d)(9) and serves the
28 1
Cal. Rules of Ct., rule 3.1332(c)(d).
5
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS’
EX PARTE APPLICATION TO CONTINUE TRIAL
1 interests of justice by allowing sufficient time to ensure a jury has the opportunity to hear in-
2 person testimony from Randy Whited concerning Plaintiff’s activity within his weight training
3 course. Given the damages being alleged in this matter directly relate to issues regarding
4 Plaintiff’s claimed physical injuries, primarily to his lumbar spine and his altered day-to-day
5 living, it is imperative that Defendants be permitted to put forth a defense at trial in which a jury
6 is able to hear evidence concerning Plaintiff’s physical condition within close proximity to the
7 subject accident.
8 In addition, the Court must consider “all the facts and circumstances that are relevant to
9 the determination” in ruling upon a request for a trialcontinuance. California Rules of Court,
10 rule 3.1332(d). Rule 3.1332(d) provides that such factors may include:
11 Whether there was any previous continuance, extension of time, or delay of trial due
12 to any party;
13 The length of the continuance requested;
14 The prejudice that parties or witnesses will suffer as a result of the continuance;
15 Whether all parties have stipulated to a continuance;
16 Whether the interests of justice are best served by a continuance, by the trial of the
17 matter, or by imposing conditions on the continuance; and
18 Any other fact or circumstance relevant to the fair determination of the motion or
19 application.
20 Good cause also exists to continue the trial date and related dates in this matter pursuant to
21 California Rules of Court, rule 3.1332(d)(10), as the interests of justice are best served by a
22 continuance of the trial date as no parties or witnesses will suffer prejudice as a result of the
23 continuance; however, Defendants will suffer severe prejudice if the trial date is not continued to
Becherer
24 allow Defendants adequate time to put forth a complete defense against Plaintiff’s claim for
Kannett &
Schweitzer
________ 25 damages. Moreover, the requested trial date gives counsel sufficient time to coordinate the
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Powell St.
26
Emeryville, CA
depositions of Nancy Michalski, RN, Ms. Laura Daugherty, Linda Schrack, and Jim Schrack.
94608
510-658-3600
27 Plaintiff’s counsel also indicated Plaintiff will be on a prepaid trip out of the country from
28 November 15 to mid-January. As such, Defendants believe a 125-day continuance would be in
6
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS’
EX PARTE APPLICATION TO CONTINUE TRIAL
1 the interests of justice to ensure that this matter was fully adjudicated on all the evidence.
2 Accordingly, Defendants request that the Court set this matter for a date no earlier than
3 March 3, 2020. Defendant is not requesting that any discovery or motion cut-off date be based
4 upon the new trial date.
5 TIMELY EX PARTE NOTICE WAS PROVIDED
6 Pursuant to California Rules of Court, Rule 3.1203, Plaintiff’s counsel was notified of
7 Defendants’ intent to appear ex parte through a letter submitted via facsimile on September 30,
8 2019. (Decl. of D. Sawyer ¶ 18; Exhibit “8”.)
9 V. CONCLUSION
10 For the foregoing reasons, Defendants respectfully request that this Court continue the
11 trial date to a date no earlier than March 3, 20120.
12
13 DATED: September 30, 2019 BECHERER KANNETT & SCHWEITZER
14
15 By:
Shahrad Milanfar
16 Donavon Sawyer
Attorneys for Defendants
17 RAYMOND ERNEST ELLIS, SCHRACK
DRILLING CO, JIM SCHRACK and LINDA
18 SCHRACK
19
20
21
22
23
Becherer
Kannett &
24
Schweitzer
________ 25
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26
Emeryville, CA
94608
510-658-3600
27
28
7
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS’
EX PARTE APPLICATION TO CONTINUE TRIAL
Preview
1 Shahrad Milanfar (SBN 201126) Donavon Sawyer (SBN 302560) 2 BECHERER KANNETT & SCHWEITZER 1255 Powell Street E-FILED 3 Emeryville, California 94608 9/30/2019 12:38 PM Telephone: (510) 658-3600 Superior Court of California 4 County of Fresno Facsimile: (510) 658-1151 5 By: J. Nelson, Deputy Attorneys for Defendants 6 RAYMOND ERNEST ELLIS, SCHRACK DRILLING CO, JIM SCHRACK and LINDA SCHRACK 7 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 IN AND FOR THE COUNTY OF FRESNO 10 11 JEREMIAH DAUGHERTY, an individual; CASE NO. 16CECG03568 12 Plaintiff, MEMORANDUM OF POINTS AND 13 vs. AUTHORITIES IN SUPPORT OF DEFENDANTS’ EX PARTE 14 APPLICATION TO CONTINUE TRIAL RAYMOND ERNEST ELLIS, an individual; 15 SCHRACK DRILLING CO, a business entity form unknown; JIM SCHRACK dba SCHRACK Date: October 1, 2019 16 DRILLING CO; LINDA SCHRACK dba Time: 3:30 p.m. SCHRACK DRILLING CO; and DOES 1 Dept.: 502 17 through 20, Inclusive; Judge: Hon. Donald Black 18 Defendants. Complaint Filed: November 3, 2016 19 Trial Date: October 30, 2019 20 I. INTRODUCTION 21 This case arises from an alleged motor vehicle accident that occurred on December 8, 22 2014, in Selma, California, as Plaintiff Jeremiah Daugherty (hereinafter “Mr. Daugherty”) was 23 approaching the intersection of Manning Avenue and McCall Avenue. Specifically, Plaintiff Becherer Kannett & 24 alleges in his Complaint that Defendant’s driver negligently operated an automobile in a manner Schweitzer ________ 25 that caused it to collide with his automobile, thereby causing him to sustain personal injuries and 1255 Powell St. 26 Emeryville, CA damages. Plaintiff claims he sustained unresolved injuries as a result of the alleged accident. See 94608 510-658-3600 27 Declaration of Donavon Sawyer ¶ 3 (hereinafter “Decl. of D. Sawyer”). Plaintiff’s Complaint was 28 filed on November 3, 2016. [Decl. of D. Sawyer ¶ 4; Exhibit “1”.] This will be Defendants’ first 1 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS’ EX PARTE APPLICATION TO CONTINUE TRIAL 1 ex parte appearance seeking a trial continuance in this case. [Decl. of D. Sawyer ¶ 5.] On 2 September 4, 2019, Plaintiff’s counsel indicated he would not be opposed to a two-week trial 3 continuance or a trial continuance to any date falling after January 20, 2020. [Decl. of D. Sawyer 4 ¶ 6; Exhibit “2”, p.5] On September 26, 2019, Plaintiff’s counsel indicated he would not stipulate 5 to Defendants’ anticipated ex parte application to continue trial. [Decl. of D. Sawyer ¶ 6; Exhibit 6 “2”, pp.1 – 2.] Defendants request a trial continuance due to the unavailability of an essential lay 7 witness and unanticipated calendaring complications, primarily caused by Plaintiff’s counsel’s 8 unnecessary delay, Defendants seek a trial continuance to a date no earlier than March 3, 2020. 9 [Decl. of D. Sawyer ¶ 7.] 10 II. FACTUAL BACKGROUND 11 Plaintiff claims he sustained injury after Defendant’s driver, Raymond Ellis, operated and 12 caused a vehicle to collide with his vehicle on December 8, 2014. Specifically, Plaintiff claims 13 he sustained physically debilitating injuries which required him to undergo a posterior spinal 14 lumbar fusion at the L5-S1 level on April 19, 2018. Defendants dispute the nature and extent of 15 Plaintiff’s alleged injuries and contend the subject accident did not necessitate he undergo various 16 forms of medical treatment such as the aforementioned April 19, 2018 surgery. 17 On June 10, 2019, Defense counsel deposed lay witness Randy Whited. Mr. Whited 18 testified that he was the weight training instructor for Plaintiff Jeremiah Daugherty at Reedley 19 College approximately one month after the subject motor vehicle accident. Mr. Whited also 20 provided testimony as to his custom and practice instructing and overseeing students such as 21 Plaintiff and his interpretation of Plaintiff’s academic grades within the aforementioned weight 22 training course. Mr. Whited testified about the various exercises he taught students within his 23 college weight training course, and he opined as to the physical capabilities he required from Becherer 24 students who enrolled in said course, such as Plaintiff. [Decl. of D. Sawyer ¶ 8.] Kannett & Schweitzer ________ 25 On June 15, 2019, Plaintiff made an ex parte appearance requesting a trial continuance 1255 Powell St. 26 Emeryville, CA primarily due to the unavailability of Plaintiff’s lead trial counsel. Plaintiff’s ex parte relief was 94608 510-658-3600 27 granted, and the Court continued trial to the current October 30, 2019 trial date. [Decl. of D. 28 Sawyer ¶ 9; Exhibit “3”.] 2 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS’ EX PARTE APPLICATION TO CONTINUE TRIAL 1 On July 1, 2019, defense counsel informed Mr. Whited of the new October 30, 2019 trial 2 date. Thereafter, Mr. Whited indicated the new October trial date conflicted with a prepaid trip to 3 Barcelona, Spain which would require him to be out of the country from October 27, 2019 to 4 November 11, 2019. [Decl. of D. Sawyer ¶ 10; Exhibit “4”.] In consideration of understanding ex 5 parte relief for a trial continuance would need to be sought due to Mr. Whited’s unavailability, 6 Defendants served Plaintiff with a 998 Offer to Compromise amounting to $110,000 on July 18, 7 2019, in an attempt to resolve this case before trial. When Plaintiff’s last day to accept 8 Defendants’ 998 Offer to Compromise passed without resolution of the case, defense counsel 9 informed Plaintiff’s counsel telephonically and via email correspondence of Mr. Whited’s 10 unavailability and discussed the feasibility of continuing trial. [Decl. of D. Sawyer ¶ 11; Exhibit 11 “2”, p.8.] Defense counsel and Plaintiff’s counsel agreed it may be possible to continue trial one 12 week, but that would require parties to speculate as to how slowly and/or quickly trial would 13 move along before Mr. Whited’s returns to California. Alternatively, Plaintiff’s counsel advised 14 that Plaintiff Jeremiah Daugherty will be out of the country on a prepaid trip from November 15 15 to mid-January, and as a result, counsel would not oppose a ex parte trial continuance requesting 16 trial be move to any date after January 20, 2020. In fact, Plaintiff’s counsel stated it would be best 17 if trial was continued to a date after January 20, 2020. Id. at pp. 5–7. 18 On June 25, 2019, Plaintiff’s counsel deposed Defendants’ medical billing expert Nancy 19 Michalski, R.N., but he was unable to finish deposing Ms. Michalski due to her unanticipated 20 time constraints. As such, defense counsel agreed to make Ms. Michalski available to be deposed 21 a second time. [Decl. of D. Sawyer ¶ 12.] From June 28, 2019 to September 20, 2019, Defense 22 counsel made approximately ten individual requests to Plaintiff’s counsel for his availability to 23 move forward with the second deposition of Ms. Michalski. [Decl. of D. Sawyer ¶ 13; Exhibit Becherer 24 “5”.] On September 26, 2019, Plaintiff’s counsel provided a date of his availability to depose Ms. Kannett & Schweitzer ________ 25 Michalski; however, it is defense counsel’s understanding that said date is no longer available due 1255 Powell St. 26 Emeryville, CA Ms. Michalski’s limited availability and counsel’s delay in securing a date. Id. at pp. 10–12. 94608 510-658-3600 27 Since June of 2018, defense counsel has attempted to depose Ms. Daugherty. In response 28 to Defendants’ attempt to notice Ms. Daugherty’s deposition, Plaintiff’s counsel’s office stated it 3 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS’ EX PARTE APPLICATION TO CONTINUE TRIAL 1 had some form of contact with Ms. Laura Daugherty, accepted service of her noticed deposition, 2 objected to her unilaterally noticed deposition on her behalf, indicated her availability in June of 3 2019 was limited, and proposed we coordinate a date to depose her on the same day as Mr. Jim 4 Schrack and Mrs. Linda Schrack. [Decl. of D. Sawyer ¶ 14; Exhibit “6”.] On September 26, 2019, 5 Plaintiff’s counsel unexpectedly indicated he never established communication with Ms. 6 Daugherty and proposed that Defendant subpoena her to be deposed. On September 27, 2019, 7 Plaintiff’s counsel directed meet and confer communication to defense counsel clarifying he 8 established contact with Ms. Daugherty and provided a date of her availability. At this juncture, 9 defense counsel has not confirmed its availability to depose Ms. Daugherty as it is also attempting 10 to confirm the availability of its clients Jim Schrack and Linda Schrack’s availability to be 11 deposed on the same day. [Decl. of D. Sawyer ¶ 15; Exhibit “2”, pp. 1–2.; Exhibit “7”.] 12 Without a trial continuance, Defendants will be unable to call Mr. Whited as a critical trial 13 witness who can show that plaintiff was taking weight training while claiming to suffer from a 14 major spinal injury. Without Mr. Whited, the jury will be unable to obtain the necessary insight as 15 to Plaintiff’s physical condition in close proximity to the subject accident. The defense is 16 significantly negatively impacted if a jury is not able to hear from Mr. Whited in person because 17 he is one of the few lay witnesses in this case who can definitively be categorized as an unbiased 18 witness and can provide testimony concerning Plaintiff’s physical condition in such close 19 proximity to the subject accident. Simply reading Mr. Whited’s deposition testimony to a jury 20 will limit the substance and effect of his testimony. Consequently, Defendants will be 21 significantly prejudiced in defending themselves against Plaintiff’s claims for damages if trial is 22 not continued to allow Mr. Whited to make himself available for trial. Furthermore, defense 23 counsel has been working with plaintiff’s counsel because of the representation that he was Becherer 24 amenable to moving the trial date. His position changed on September 26, 2019 which Kannett & Schweitzer ________ 25 necessitated this ex parte application. [Decl. of D. Sawyer ¶ 16.] 1255 Powell St. 26 Emeryville, CA A trial continuance to a date after March 3, 2020 is appropriate in consideration of 94608 510-658-3600 27 Plaintiff Jeremiah Daugherty’s prepaid trip out of the country. Defense’s trial counsel, Shahrad 28 Milanfar, Esq. is respectively scheduled for trial on February 5, 2020 and March 23, 2020, in two 4 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS’ EX PARTE APPLICATION TO CONTINUE TRIAL 1 separate matters. Mr. Milanfar is also scheduled for an October 8, 2019 trial in Los Angeles 2 which appears will overlap with the currently scheduled October 30, 2019 trial in this case. 3 Moreover, a trial continuance after this date will give counsel sufficient time to coordinate the 4 second deposition of Defendants’ medical billing expert, Nancy Michalski, RN, and obtain 5 alternative dates to move forward with the deposition of Ms. Laura Daugherty, Linda Schrack, 6 and Jim Schrack. In consideration of defense counsel’s numerous unsuccessful attempts to 7 coordinate the depositions of the aforementioned witnesses with Plaintiff’s counsel, Defendants 8 respectfully request the Court continue trial and avoid causing any unnecessary inconvenience to 9 Ms. Michalski and defense counsel’s ability to obtain deposition testimony from Ms. Laura 10 Daugherty. [Decl. of D. Sawyer ¶ 17.] 11 California Rules of Court, rule 3.1332(b) states in pertinent part: “A party seeking a 12 continuance of the date set for trial, whether contested or uncontested or stipulated to by the 13 parties, must make the request for a continuance by a noticed motion or an ex parte application . . 14 .” (emphasis added). The Court must consider “all the facts and circumstances that are relevant to 15 the determination.”1 Rule 3.1332(c)(d) further provides that grounds for continuance include: 16 (3) The unavailability of essential lay or expert witnesses because of 17 death, illness, or other excusable circumstances; 18 (6) A party's excused inability to obtain essential testimony, 19 documents, or other material evidence despite diligent efforts; 20 (9) Whether all parties have stipulated to a continuance. 21 In Oliveros v. County of Los Angeles (2004) 120 Cal.App.4th 1389, 1396 the Court of 22 Appeal held that: 23 While it is true that a trial judge must have control of the courtroom and its calendar…absent a lack of diligence or other abusive circumstances which are not Becherer Kannett & 24 present in this case, a request for a continuance supported by a showing of good Schweitzer cause usually ought to be granted. ________ 25 1255 Powell St. 26 Emeryville, CA There are no abusive circumstances present in this case. Rather, this continuance request 94608 510-658-3600 27 falls squarely within Rules of Court, Rule 3.1332(c)(3), (6), Rule 3.1332(d)(9) and serves the 28 1 Cal. Rules of Ct., rule 3.1332(c)(d). 5 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS’ EX PARTE APPLICATION TO CONTINUE TRIAL 1 interests of justice by allowing sufficient time to ensure a jury has the opportunity to hear in- 2 person testimony from Randy Whited concerning Plaintiff’s activity within his weight training 3 course. Given the damages being alleged in this matter directly relate to issues regarding 4 Plaintiff’s claimed physical injuries, primarily to his lumbar spine and his altered day-to-day 5 living, it is imperative that Defendants be permitted to put forth a defense at trial in which a jury 6 is able to hear evidence concerning Plaintiff’s physical condition within close proximity to the 7 subject accident. 8 In addition, the Court must consider “all the facts and circumstances that are relevant to 9 the determination” in ruling upon a request for a trialcontinuance. California Rules of Court, 10 rule 3.1332(d). Rule 3.1332(d) provides that such factors may include: 11 Whether there was any previous continuance, extension of time, or delay of trial due 12 to any party; 13 The length of the continuance requested; 14 The prejudice that parties or witnesses will suffer as a result of the continuance; 15 Whether all parties have stipulated to a continuance; 16 Whether the interests of justice are best served by a continuance, by the trial of the 17 matter, or by imposing conditions on the continuance; and 18 Any other fact or circumstance relevant to the fair determination of the motion or 19 application. 20 Good cause also exists to continue the trial date and related dates in this matter pursuant to 21 California Rules of Court, rule 3.1332(d)(10), as the interests of justice are best served by a 22 continuance of the trial date as no parties or witnesses will suffer prejudice as a result of the 23 continuance; however, Defendants will suffer severe prejudice if the trial date is not continued to Becherer 24 allow Defendants adequate time to put forth a complete defense against Plaintiff’s claim for Kannett & Schweitzer ________ 25 damages. Moreover, the requested trial date gives counsel sufficient time to coordinate the 1255 Powell St. 26 Emeryville, CA depositions of Nancy Michalski, RN, Ms. Laura Daugherty, Linda Schrack, and Jim Schrack. 94608 510-658-3600 27 Plaintiff’s counsel also indicated Plaintiff will be on a prepaid trip out of the country from 28 November 15 to mid-January. As such, Defendants believe a 125-day continuance would be in 6 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS’ EX PARTE APPLICATION TO CONTINUE TRIAL 1 the interests of justice to ensure that this matter was fully adjudicated on all the evidence. 2 Accordingly, Defendants request that the Court set this matter for a date no earlier than 3 March 3, 2020. Defendant is not requesting that any discovery or motion cut-off date be based 4 upon the new trial date. 5 TIMELY EX PARTE NOTICE WAS PROVIDED 6 Pursuant to California Rules of Court, Rule 3.1203, Plaintiff’s counsel was notified of 7 Defendants’ intent to appear ex parte through a letter submitted via facsimile on September 30, 8 2019. (Decl. of D. Sawyer ¶ 18; Exhibit “8”.) 9 V. CONCLUSION 10 For the foregoing reasons, Defendants respectfully request that this Court continue the 11 trial date to a date no earlier than March 3, 20120. 12 13 DATED: September 30, 2019 BECHERER KANNETT & SCHWEITZER 14 15 By: Shahrad Milanfar 16 Donavon Sawyer Attorneys for Defendants 17 RAYMOND ERNEST ELLIS, SCHRACK DRILLING CO, JIM SCHRACK and LINDA 18 SCHRACK 19 20 21 22 23 Becherer Kannett & 24 Schweitzer ________ 25 1255 Powell St. 26 Emeryville, CA 94608 510-658-3600 27 28 7 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS’ EX PARTE APPLICATION TO CONTINUE TRIAL