Preview
170V310601
Santa Clara — Civil
R. Guillermo
Ryan P. Harley, Esq. (SBN 245059) Electronically Filed
Bradley D. Doucette, Esq. (SBN 322611) by Superior Court of CA,
COLLINS COLLINS MUIR + STEWART LLP County of Santa Clara,
1999 Harrison Street, Suite 1700 on 3/4/2020 11:32 AM
Oakland, CA 94612 Reviewed By: R. Guillermo
(510) 844-5100 — FAX (510) 844-5101 Case #17CV310601
Envelope: 4119128
Attorneys for Defendant/Cross-Complainant,
WEC AND ASSOCIATES, INC.
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SANTA CLARA
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YOUQIN CAO, an Individual, and CASE NO. 17CV310601
11 XINRONG JIANG, an Individual, [Assigned to Hon. Maureen A. Folan, Dept. 6]
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Plaintiffs, WEC’S NOTICE OF MOTION AND MOTION
13 TO CONTINUE TRIAL; DECLARATION OF
Vs. BRADLEY D. DOUCETTE
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CALIFORNIA HOME BUILDERS & ) [Concurrently filed with [Proposed] Order]
15 DESIGN, INC. dba CALIFORNIA HOMES.)
& DESIGNS, INC., a California Corporation; ) DATE: March 26, 2020
16
CALIFORNIA HOMES AND KITCHEN ) TIME: 9:00 a.m.
17 DESIGN CENTER, INC., a California ) DEPT: 20
Corporation; WEC ASSOCIATES, INC., a )
18 California Corporation; and DOES 2 through )
100,
19 Complaint Filed: S/19/17
Defendants. FAC Filed: 8/15/17
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Trial Date: 4/6/20
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AND RELATED CROSS ACTIONS. )
22 )
23 TO ALL PARTIES AND TO THEIR ATTORNEYS OF RECORD HEREIN:
24 PLEASE TAKE NOTICE that on March 26, 2020 at 9:00 a.m., or as soon thereafter as this
25 matter may be heard in Department 20 of the above-entitled Court, located at 191 North First Street
26 San Jose, CA 95113, Defendant/Cross-Complainant WEC and Associates, Inc. (“WEC”) will and
27 hereby does move this Court for an order vacating the current trial date of April 6, 2020, the
28 mandatory settlement conference date of April 1, 2020, and all corresponding motion, discovery, and
‘COLLINS COLLINS. FILE #20705
MUIR + STEWART. 1
MOTION TO CONTINUE TRIAL; DECLARATION OF BRADLEY D. DOUCETTE
pre-trial cut off dates. WEC therein moves for a new trial date of no earlier than June 1, 2020, or as
soon thereafter as the Court’s calendar may accommodate the trial and related dates and deadlines.
This motion is made pursuant to California Rules of Court, Rule 3.1332, et seq. and Code of
Civil Procedure section 1005, and is based upon grounds that good cause exists for the requested
relief. As is stipulated between the parties, additional damages and additional bases for liability have
arose, and the parties will need to conduct further investigation and analysis of these new allegations.
Further, the parties have been engaged in substantial discovery efforts, including taking multiple
depositions of all parties involved and exchanging extensive written discovery, and the parties are in
agreement that that these efforts have and will aid in analysis of the new allegations as well as support
10 the ongoing settlement discussions that have been conducted thus far. As such, the parties agree that
11 the continuance is needed to allow them to focus their efforts and resources towards settlement as
12 opposed to ongoing discovery and final trial preparations for the upcoming April trial date in this
13 matter. This is the first request for a trial continuance and all parties have stipulated to the trial
14 continuance, as was submitted to the Court on February 26, 2020 in connection to the prior Ex Parte
15 Application brought by WEC. (See Declaration of Bradley D. Doucette, Exhibit A.)
16 This motion is made pursuant to this notice of motion, the attached memorandum of points and
17 authorities, the Declaration of Bradley D. Doucette, the pleadings, papers and records on file in this
18 action and on any oral argument and evidence as may be presented at the hearing on this motion.
19 DATED: March 4, 2020 COLLINS COLLINS MUIR + STEWART LLP
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By:
22 BRABEEY D-DOUCEEFE—~
RYAN P. HARLEY
23 Attorneys for Defendant/Cross-Complainant,
WEC AND ASSOCIATES, INC.
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‘COLLINS COLLINS. FILE #20705
MUIR + STEWART. 2
MOTION TO CONTINUE TRIAL; DECLARATION OF BRADLEY D. DOUCETTE
MEMORANDUM OF POINTS AND AUTHORITIES
I.
INTRODUCTION: A TRIAL CONTINUANCE IS NECESSARY AND PROPER
This matter concerns a lawsuit brought by Plaintiffs Youquin Cao and Xinrong Jiang
(collectively “Plaintiffs”), owners of a single-family residence located at 2651 South Court, Palo
Alto, California (the “Property”). Plaintiffs allege various issues with the Property, and have brought
suit against the general contractor who was retained by Plaintiffs to construct their home,
Defendants/Cross-Defendants California Home Builders & Design Inc. dba California Homes &
Designs, Inc. and California Homes and Kitchen Design Center, Inc. (collectively “California
10 Homes”), and the architect/engineer/land surveyor for the Property, Defendant/Cross-Complainant
11 WEC and Associates, Inc. (“WEC”).
12 WEC, with the knowledge and support of the parties, brings this motion to continue the trial
13 and all trial-related given the recent introduction of new damages and theories of liability from
14 Plaintiffs ,the ongoing discovery efforts by the parties, and efforts by the parties to continue
15 substantial settlement negotiations. (See Declaration of Bradley D. Doucette (“Doucette Decl.”),
16 Exhibit A.)! A brief continuance of the upcoming trial and related dates would serve the best interest
17 of all parties and allow time for the experts in this complicated matter to explore and reevaluate the
18 additional damages and bases for liability recently raised by Plaintiffs, as well as allow for the parties
19 to focus their efforts and resources towards settlement as opposed to preparing for the April trial date.
20 All parties have stipulated to the continuance and no party will be prejudiced if trial is
21 continued to date of no earlier than June 1, 2020, or as soon thereafter as the Court’s calendar may
22 accommodate the trial and related dates and deadlines. These reasons provide good cause for this trial
23 continuance, and WEC respectfully requests that this court grant a trial continuance so that the parties
24 can adequately prepare the claims and defenses in the instant action.
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' On February 26, 2020, WEC brought a Stipulated Ex Parte Application for an Order Continuing the Trial, Mandatory
28 Settlement Conference, and All Trial-Related dates. The Court heard the Ex Parte Application and ordered that a fully
noticed Motion to Continue the Trial be submitted per Code. (See Doucette Declaration, Exhibit A.)
‘COLLINS COLLINS. FILE #20705
MUIR + STEWART. 3
MOTION TO CONTINUE TRIAL; DECLARATION OF BRADLEY D. DOUCETTE
Il.
THIS COURT HAS AUTHORITY TO GRANT THE PARTIES A TRIAL CONTINUANCE
UNDER THE CIRCUMSTANCES
Under California Rule of Court Rule 3.1332(c), this Court has authority to grant a continuance
in the matter upon a showing of good cause by the parties. Each individual case must be considered
on its own merits. (Cal. Rules of Court Rule 3.1332(c).) A variety of circumstances may be
considered in determining whether good cause exists to the continue the trial, including whether “(7)
A significant, unanticipated change in the status of the case as a result of which the case is not ready
for trial.” (/d.) The court acknowledges that “[flor many — perhaps all — lawyers, a litigation practice
10 entails a continual barrage of unexpected and unplanned for events.” (Pham v. Nguyen (1997) 54
11 Cal.App.4th 11, 15.) The court encourages trial courts to “accommodate” counsel whenever it was
12 not “impractical” to do so. (/d. at 16.) And while it is true that the trial judge must have control of
13 the courtroom and calendar, “it is equally true that, absent a lack of diligence or other abusive
14 circumstances, a request for a continuance supported by a showing of good cause usually ought to be
15 granted.” (Oliveras v. County of Los Angeles (2004) 120 Cal.App.4th 1389, 1396.)
16 Ii.
17 GOOD CAUSE EXISTS TO CONTINUE THE TRIAL GIVEN A SIGNIFICANT AND
18 UNANTICIPATED CHANGE IN THE STATUS OF THE CASE HAS OCCURRED
19 This Court has authority to grant a continuance in the matter upon a showing of good cause
20 by the parties. (Cal. Rule of Court, Rule 3.1332(c).) Courts are encouraged to accommodate counsel
21 where it is not impractical to do so. (See Pham, supra at 16.) In addition to this overarching policy,
22 the California Rules of Court identify a number of specific factors a court must consider when making
23 a good cause determination in addition to all relevant facts and circumstances:
24 (1) The proximity of the trial date;
25 (2) Whether there was any previous continuance, extension of time, or delay of
26 trial due to any party;
27 (3) The length of the continuance requested;
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MOTION TO CONTINUE TRIAL; DECLARATION OF BRADLEY D. DOUCETTE
(4) The availability of alternative means to address the problem that gave rise to
the motion or application for a continuance;
(5) The prejudice that parties or witnesses will suffer as a result of the
continuance;
(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;
(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;
10 (9) Whether all parties have stipulated to a continuance;
11 (10) Whether the interests of justice are best served by a continuance, by the trial
12 of the matter, or by imposing conditions on the continuance; and
13 (11) Any other fact or circumstance relevant to the fair determination of the
14 motion or application.
15 (Cal. Rules of Court Rule 3.1332(d)(1)-(11).)
16 Here, a review of the grounds for continuance as well as the Court’s factors for consideration
17 shows a trial continuance is necessary and proper under the circumstances. First, pursuant to
18 California Rule of Court, Rule 3.1332(c)(7), a significant and unanticipated change in the status of
19 the case has resulted in the case not being ready for trial. Plaintiffs’ attorney, Jeffrey H. Belote, Esq.,
20 recently produced additional documents including photographs of the foundation of the Property.
21 (Doucette Decl., Exhibit A.) According to Mr. Belote, those photographs have caused Plaintiffs’
22 experts to reevaluate additional damages related to the foundation and additional bases for liability.
23 (id.) Plaintiffs conducted an additional inspection of the subject property on or about February 20,
24 2020, and Defense experts conducted an inspection of the subject property on February 26, 2020 at
25 10:00 a.m. including inspecting the test pits drilled by Plaintiffs’ experts. (/d.) As of the time of this
26 motion, the parties have retained at least ten expert witnesses, the depositions of which are set to start
27 on March 17, 2020 and continue through April 2020. (See id.; see also Doucette Decl. 4-5.) Due
28 to this recently discovered evidence and undisclosed theories of liability, as well as the additional
‘COLLINS COLLINS. FILE #20705
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MOTION TO CONTINUE TRIAL; DECLARATION OF BRADLEY D. DOUCETTE
ongoing work being conducted by the numerous experts, additional time is necessary to assess the
opinions and conclusions of Plaintiffs’ experts prior to their depositions and prior to the fast-
approaching trial date. (/d.)
Another factor for consideration is whether the parties will be prejudiced if a continuance is
not granted. (See Cal. Rules of Court Rule 3.1332(d)(5).) Here, the Parties have engaged in, and
continue to engage in, substantive settlement discussions with mediator Brad Benning, Esq. and have
scheduled a mediation with Mr. Benning on March 13, 2020 in an effort to continue such settlement
discussions and attempt to resolve the matter. (Doucette Decl., 493-5 and Exhibit A.) Plaintiffs are
expected to provide additional materials concerning their experts’ reevaluation of damages sometime
10 prior to the March 13, 2020 mediation, and should the matter not resolve, the parties have tentatively
11 agreed to begin conducting expert witness depositions on or around March 17, 2020 depending on
12 the availability of counsel and the expert witnesses. (/d.) The parties anticipate taking at least ten to
13 twelve expert depositions, and based on the availability of counsel and the experts as well as the need
14 for the opinions and testimony of Plaintiffs’ experts, the parties will not be able to conduct all expert
15 depositions by the time of trial. (/d.) As such and in light of the currently scheduled trial date, the
16 parties will be prejudiced if unable to finalize expert discovery prior to trial.
17 Another consideration for the Court is whether the parties’ have stipulated to the continuance,
18 which the parties have in this matter. (Cal. Rules of Court Rule 3.1332(d)(9); see also (Doucette
19 Decl., Exhibit A.) The Court may also consider the proximity of the trial date, the length of the
20 continuance requested, whether any prejudice will be suffered as a result of the continuance, and
21 whether the interest of judices are best served by a continuance. (See Cal. Rules of Court Rule
22 3.1332(d)(1), (3), (6), and (10).) Here, this brief request comes just over a month before the trial date,
23 and seeks a continuance of only two to three months. (Doucette Decl. at {6-8 and Exhibit A.) The
24 parties agree that they will not suffer any prejudice by this short continuance. (/d.) Also, pursuant to
25 California Rules of Court Rule 3.1332(d)(8), the Court may consider whether trial counsel is engaged
26 in another trial — trial counsel for WEC is engaged in a trial only a week before the April trial date.
27 (id.)
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MOTION TO CONTINUE TRIAL; DECLARATION OF BRADLEY D. DOUCETTE
Finally, pursuant to California Rules of Court, Rule 3.1332(d)(9), this is the first request for
a continuance in the matter by any party. (/d.)
IV.
CONCLUSION
This is a complicated matter, and as outlined herein, recent events and changing theories of
liability beg the need for more time to evaluate the issues and prepare for trial. Accordingly, WEC,
with the support and stipulation of all parties, hereby moves for a new trial date of no earlier than
June 1, 2020, or as soon thereafter as the Court’s calendar may accommodate the trial and related
dates and deadlines. WEC has shown good cause justifies a continuance and that none of the parties
10 will be prejudiced and will only benefit form a continuance.
11 DATED: March 4, 2020 COLLINS COLLINS MUIR + STEWART LLP
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By:
14 BRABEEY D-DOUCEEFE—~
RYAN P. HARLEY
15 Attorneys for Defendant/Cross-Complainant,
WEC AND ASSOCIATES, INC.
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‘COLLINS COLLINS. FILE #20705
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MOTION TO CONTINUE TRIAL; DECLARATION OF BRADLEY D. DOUCETTE
DECLARATION OF BRADLEY D. DOUCETTE
I, Bradley D. Doucette, declare:
1 I am an attorney in good standing, admitted and licensed to practice before the courts
of the State of California. I am an associate with the law firm of Collins Collins Muir + Stewart, LLP,
counsel of record for Defendant/Cross-Complainant WEC and Associates, Inc. (“WEC”) I have
personal knowledge of the facts stated herein, except as to those matters that I state upon information
and belief, and as to those matters I believe them to be true. If called upon to testify, I could and
would competently do so.
2. Currently pending in this matter are the following dates which were set by the Court:
10 Trial Date: April 6, 2020
11 Mandatory Settlement Conference: April 1, 2020
12 3 The parties have entered into a stipulation to continue the trial, mandatory settlement
13 conference, and all trial-related dates. Attached hereto as Exhibit A is a true and correct copy of the
14 stipulation between the parties which was filed with this Court on February 26, 2020 with WEC’s
15 Stipulated Ex Parte Application for an Order Continuing the Trial. Exhibit A also contains the Order
16 by this Court setting a Motion to Continue Trial for March 26, 2020. I personally appeared for the
17 Stipulated Ex Parte Application hereto and was informed by the Honorable Socrates P. Manoukian
18 that the request for a trial continuance needed to be brought by a noticed motion. This stipulation is
19 based on new theories of damages and liability by the Plaintiffs, ongoing discovery efforts by all
20 parties, as well as ongoing settlement discussions between all parties and their counsel. At the time
21 of filing of this motion, the parties are scheduled to participate in a mediation with mediator Brad
22 Benning, Esq. on March 13, 2020.
23 4 On or around January 21, 2020, counsel for Plaintiffs Yoquin Cao and Xinrong Jiang
24 (“Plaintiffs”) produced additional documents to all parties including photographs of the foundation
25 of the subject property to this lawsuit. Some of these documents have been used as exhibits in recent
26 depositions, such as the deposition of California Homes’ Simon Krek. For example, attached hereto
27 as Exhibit B is a true and correct copy of correspondence from Plaintiffs’ counsel to all counsel
28 containing two exhibits that were produced and used in a recent deposition. I am informed and believe
‘COLLINS COLLINS. FILE #20705
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MOTION TO CONTINUE TRIAL; DECLARATION OF BRADLEY D. DOUCETTE
that these documents and others, paired with the deposition testimony of party witnesses thus far, has
recently caused Plaintiffs’ experts to reevaluate additional damages and bases for liability. Plaintiffs’
experts are expected to provide additional reports and/or analyses concerning their experts’
reevaluation of damages prior to March 13, 2020. Accordingly, WEC and Defendants/Cross-
Defendants California Home Builders & Design Inc. dba California Homes & Designs, Inc. and
California Homes and Kitchen Design Center, Inc. (collectively “California Homes”) will require
additional time to evaluate any and all supplemental materials and opinions provided by Plaintiffs’
experts and prepare defenses and responses accordingly.
5 In advance of the March 13, 2020 mediation, the parties have met and conferred at
10 length in good faith with each other regarding settlement discussions, necessary expert discovery,
11 depositions, and the need for a brief trial continuance. Numerous percipient witness depositions have
12 taken place, and the parties have tentatively agreed to begin taking depositions of expert witnesses
13 on or around March 17, 2020 based on the availability of counsel and expert witnesses. The parties
14 have discussed taking the Plaintiffs’ experts’ depositions in late March, followed by the depositions
15 of expert witnesses for WEC and California Homes in early to mid-April. I am informed and believe
16 that Plaintiffs’ experts’ deposition testimony will need to be reviewed by the other expert witnesses
17 in preparation for their depositions and in connection with forming their expert opinions and
18 conclusions in this matter.
19 6 After entering into a stipulation regarding a trial continuance, the parties agreed that a
20 brief continuance until at least June 1, 2020 was acceptable. I am informed and believe that on or
21 around 4:00 p.m. on Tuesday, February 25, 2020, counsel for all parties met and conferred and further
22 confirmed their availability for a trial continuance until June 1, 2020 through July 15, 2020, and/or
23 later pending the Court’s availability. Further, trial counsel for WEC, Ryan P. Harley, is set to begin
24 trial on another matter on March 30, 2020 (Macarthur Transit Community v. Sandis Civil Engineers,
25 Alameda County Superior Court, Case No. HG18899280) and has informed the other parties as such.
26 7 There have been no other requests for trial continuances in this matter by any party.
27 If
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MOTION TO CONTINUE TRIAL; DECLARATION OF BRADLEY D. DOUCETTE
8 There would be no prejudice to any party by the granting of a trial continuance and to
allow for the orderly completion of discovery and expert investigation. However, the parties would
be prejudiced by not having this necessary evidence accumulated and evaluated prior to trial.
9. I sent a draft of this motion to counsel for all parties on March 3, 2020 via email and
sked for comments and objections, if any. Attached hereto as Exhibit C is a true and correct copy
of that email correspondence.
I declare under penalty of perjury under the laws of the State of California that the foregoing
is true and correct.
Executed this 4" day of March, 2020 at Oakland, California.
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BRABEFY D-DOUCETFE—~
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‘COLLINS COLLINS. FILE #20705
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MOTION TO CONTINUE TRIAL; DECLARATION OF BRADLEY D. DOUCETTE
EXHIBIT "
ILE
FEB 2 6 2020
f the Sourt
Superior, Of Banta Clara
By, EPUTY
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SANTA CLARA
10
YOUQIN CAO, an Individual, and CASE NO. 17CV310601
11 XINRONG JIANG, an Individual, [Assigned to Hon. MaureenA. Folan, Dept. 6]
12
Plaintiffs, STIPULATION OF THE PARTIES TO
13 CONTINUE TRIAL AND ALL TRIAL-
vs. RELATED DATES;4PROPOSED] ORDER
14
CALIFORNIA HOME BUILDERS &
15 DESIGN, INC. dba CALIFORNIA HOMES
& DESIGNS, INC., a California Corporation;
16
CALIFORNIA HOMES AND KITCHEN
17 DESIGN CENTER, INC., a California
Corporation; WEC ASSOCIATES, INC., a
18 California Corporation; and DOES 2 through
100,
19 Complaint Filed: S/L9/17
Defendants. FAC Filed: 8/15/17
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Trial Date: 4/06/20
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AND RELATED CROSS ACTIONS.
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STIPULATION TO CONTINUE TRIAL; [PROPOSED] ORDER
ClarkHill\67652\383450\2233605 1 1.v1-2/24/20
Saee ee
TO THE HONORABLE COURT AND TO ALL PARTIES AND THEIR
ATTORNEYS OF RECORD HEREIN:
Plaintiffs Youquin Cao and Xinrong Jiang (collectively “Plaintiffs”), Defendant California
Home Builders & Design Inc. dba California Homes & Designs, Inc. and California Homes and
Kitchen Design Center, Inc. (collectively “California Homes”), and Defendants WEC and Associates,
Inc. (*WEC”) (collectively “the Parties”) do hereby stipulate and agree as follows:
WHEREAS, the Trial date in this matter is currently set for April 6, 2020 at 8:45 a.m., and
the Mandatory Settlement Conference is currently set for April 1, 2020 at 9:00 a.m.;
WHEREAS, the Parties propose a brief Trial continuance of thirty to forty-five days, with the
10 parties preference being that the Trial date be set for the week of May 4, 2020, or a date as reasonably
il close to the thirty to forty-five-day timeframe as possible, pending the Court’s availability;
12 WHEREAS, good cause exists to continue the Trial and all Trial-related dates in this matter
13 as the Parties have engaged in, and continue to engage in, substantive settlement discussions with
14 mediator Brad Benning, Esq. and have scheduled a mediation with Mr. Benning on March 13, 2020
15 in an effort to continue such settlement discussions and attempt to resolve the matter. The Parties
16 have been engaged in substantial discovery efforts, including taking multiple depositions of all parties
17 involved and exchanging extensive written discovery, and the Parties agree that these efforts have
18 and will aid in settlement discussions at the forthcoming mediation. The Parties agree that the
19 continuance is needed to allow the Parties to focus their efforts and resources towards settlement as
20 opposed to ongoing discovery final Trial preparations for the upcoming April trial date in this matter:
21 WHEREAS, Plaintiffs’ attorney, Jeffrey H. Belote, Esq., recently produced additional
22 documents before the conclusion of depositions of his clients including photographs of the foundation
23 of the subject property. According to Mr. Belote, those photographs had caused Plaintiffs experts to
24 reevaluate additional damages related to the foundation and additional bases for liability. Plaintiffs
25 conducted an additional inspection of the subject property on or about February 20, 2020, and
26 Defense experts are scheduled to conduct another inspection of the subject property on February 26,
27 2020 beginning at 10:00 a.m. including inspecting the test pits drilled by Plaintiffs experts. Due to
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STIPULATION TO CONTINUE TRIAL; [PROPOSED] ORDER
Clark Hill\67652\383450\223360511.v1-2/24/20
these recently discovered photographs and the additional work being conducted by the experts, it is
anticipated that the experts will need additional time to assess the new information prior to their
depositions. Accordingly, the Parties agree that at least ten to twelve expert depositions will need to
be conducted prior to the current Trial date.
WHEREAS, no Parties in this matter have previously requested a Trial continuance;
WHEREAS, the Parties agree that the short continuance would promote judicial economy
and no prejudice by any of the Parties will be suffered by the short continuance of the Trial date and
all Trial-related dates;
WHEREAS, the Parties agree that all dates and deadlines, including discovery cutoffs and
10 dispositive motion deadlines, shall correspond to the continued trial date.
ll If IS FURTHER AGREED that this Stipulation may be singed in counterparts and that
12 signatures transmitted via facsimile or electronically shall be given the same force and effect as if
13 originals, and all of the counterparts when executed and taken together shall constitute one and the
14 same instrument,
15 IT IS SO STIPULATED,
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17 DATED: February 24, 2020 CLARK HILL LLP
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By: Sx\
20 EFFRB . BELO’ , ESQ.
‘AL, A, ESQ.
21 At s¥fer Plaintiffs/Cross-Defendants
YOUQIN CAO and XINRONG JIANG
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23 DATED: February 24, 2020 COLLINS COLLINS MUIR + STEWART LLP
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By
RYAN P. HARLEY, ESQ,
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BRADLEY D. DOUCETTE, ESQ.
27 Attorneys for Defendant/Cross-Complainant,
WEC AND ASSOCIATES, INC.
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STIPULATION TO CONTINUE TRIAL; [PROPOSED] ORDER
ClarkHill\67652\383450\223360511.v1-2/24/20
these recently discovered photographs and the additional work being conducted by the experts, it is
anticipated that the experts will need additional time to assess the new information prior to their
depositions. Accordingly, the Parties agree that at least ten to twelve expert depositions will need to
be conducted prior to the current Trial date.
WHEREAS, no Parties in this matter have previously requested a Trial continuance:
WHEREAS, the Parties agree that the short continuance would promote judicial economy
and no prejudice by any of the Parties will be suffered by the short continuance of the Trial date and
all Trial-related dates;
WHEREAS, the Parties agree that all dates and deadlines, including discovery cutoffs and
10 dispositive motion deadlines, shall correspond to the continued trial date
11 IT IS FURTHER AGREED that this Stipulation may be singed in counterparts and that
12 signatures transmitted via facsimile or electronically shall be given the same force and effect as if
13 originals, and all of the counterparts when executed and taken together shall constitute one and the
14 same instrument.
15 IT IS SO STIPULATED.
16
17 DATED: February 24, 2020 CLARK HILL LLP
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By
20 JEFFREY H. BELOTE, ESQ:
MELISSA PALAZOLA, ESQ
21 Attorneys for Plaintiffs/Cross-Defendants
YOUQIN CAO and XINRONG JIANG
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23 DATED: February 24, 2020 COLLINS COLLINS MUIR + STEWART LLP
24
25 AS
26 TIE
RYAN P. HARLEY, ESQ.
27 Attorneys for Defendant/Cross-Complainant
WEC AND ASSOCIATES, INC.
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STIPULATION TO CONTINUE TRIAL; [PROPOSED] ORDER
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DATED: February 24, 2020 KENNEDY & SOUZA, APC
2B fh phar ¢ a
By:
KEVIN P. KENNEDY, ESQ.
E. VAL. MENESES, ESQ.
Associated with:
\
DATED: February 24, 2020 OFFICES OF BR BSTON
By \\ BRI PRESTONYESQ.
10
il Attorneys for Defendants/Cross-Complainants
CALIFORNIA HOME BUILDERS & DESIGN,
12 INC. dba CALIFORNIA HOMES & DESIGNS,
INC., CALIFORNIA HOMES AND KITCHEN
13 DESIGN CENTER, INC.
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PROPOSED] ORDER
Having read and reviewed the foregoing Stipulation of the Parties, and having found good
cause therefor.
IT IS HEREBY ORDERED that:
1 Goodcat tsts-for-ar-comtinaance of the triat and Mandatory Settlement Conference
2.
—tatess—,
Thef[rial
inte onitiywo Tih. a3 3[26|2020 9*
date ebexprit6>2026-shat-be-contimred+ Ca COLD Gels
alt iment 3
in PEP An tebe, April 1, 2020 shall be continued to
10 at 9:00 a.m. in Department 3
il 4. All Tri ed dates and clu! $ and dispositive motion
12 deadlines, s| continued Trial date
13 IT IS SO ORDERED.
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16 l JUD, FT ERIOR COURT
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PROOF OF SERVICE
(CCP gg 1013(a) and 2015.5; FRCP 5)
State of California,
ss.
County of San Diego
am employed in the County of San Diego, State of California. I am over the age of 18 and not a party to the within action; my
business address is 2011 Palomar Airport Road, Suite 207, Carlsbad, California 92011.
On this date, I served the foregoing document described as STIPULATION OF THE PARTIES TO CONTINUE TRIAL
AND ALL TRIAL-RELATED DATES; [PROPOSED] ORDER on the interested parties in this action by placing same in a sealed
envelope, addressed as follows:
SEE ATTACHED SERVICE LIST
BY MAIL) - I caused such envelope(s) with postage thereon fully prepaid to be placed in the United States mail in Oakland, Californi
to be served on the parties as indicated on the attached service list. I am “readily familiar” with the firm’s practice of collection and
processing correspondence for mailing. Under that practice, it would be deposited with the U.S, Postal Service on that same day wit
postage thereon fully prepaid at Oakland, California in the ordinary course of business. I am aware that on motion of the party served!
service is presumed invalid if postal cancellation date or postage meter date is more than one day after date of deposit for mailing i
10 affidavit,
(BY CERTIFIED MAIL) ~ I caused such envelope(s) with postage thereon fully prepaid via Certified Mail Retum Receipt Requested
11 to be placed in the United States Mail in Oakland, California.
12 BY EXPRESS MAIL OR ANOTHER METHOD OF DELIVERY PROVID! FOR OVERNIGHT DELIVERY
13 (BY ELECTRONIC FILING AND/OR_ SERVICE) ~ I served a true copy, with all exhibits, electronically on designated
recipients listed on the attached Service List on: February 25, 2020
14 EDERAL EXPRESS - | caused the envelope to be delivered to an authorized courier or driver authorized to receive documents witl
delivery fees provided for.
15
(BY FACSIMILE) - I caused the above-described document(s) to be transmitted to the offices of the interested parties at the facsimil
16 number(s) indicated on the attached Servi List and the activity report(s) generated by facsimile number (510) 844-5101 indicated al
Pages were transmitted.
17 BY PERSONAL SERVICE) - I caused such envelope(s) to be delivered by hand to the office(s) of the addressee(s).
18
Executed on February 25, 2020 at Carlsbad, California.
19 BJ (STATE) - [declare under penalty of perjury under the laws of the State of California that the above is true and correct.
20 (1 EDERAL) - | declare that I am employed in the office of a member of the bar of this court at whose direction the service was made.
21
22
23 VICKI WOOD
ywood@ cemslaw.com | legalservices@cemslaw.com
24
25
26
27
28
‘COLLINS COLLINS
faut IRlrrison
+ STEWARY
St, Ste RT|
Oakland, CA s46i2
20705
Phone (510) 844-5100
Fax (610) 644.5101 PROOF OF SERVICE
YOUQIN CAO and XINRONG JIANG », CALIFORNIA HOME BUILDERS & DESIGN, INC., et al.
SANTA CLARA COUNTY SUPERIOR COURT CASE NO. 17CV310601
OUR FILE NO, 20705
SERVICE LI
Jeffrey H. Belote, Esq Brian Preston, Esq.
CLARK HILL LLP LAW OFFICES OF BRIAN PRESTON
One Embarcadero Center, Suite 400 111 North Marke
Preview
170V310601 Santa Clara — Civil R. Guillermo Ryan P. Harley, Esq. (SBN 245059) Electronically Filed Bradley D. Doucette, Esq. (SBN 322611) by Superior Court of CA, COLLINS COLLINS MUIR + STEWART LLP County of Santa Clara, 1999 Harrison Street, Suite 1700 on 3/4/2020 11:32 AM Oakland, CA 94612 Reviewed By: R. Guillermo (510) 844-5100 — FAX (510) 844-5101 Case #17CV310601 Envelope: 4119128 Attorneys for Defendant/Cross-Complainant, WEC AND ASSOCIATES, INC. SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SANTA CLARA 10 YOUQIN CAO, an Individual, and CASE NO. 17CV310601 11 XINRONG JIANG, an Individual, [Assigned to Hon. Maureen A. Folan, Dept. 6] 12 Plaintiffs, WEC’S NOTICE OF MOTION AND MOTION 13 TO CONTINUE TRIAL; DECLARATION OF Vs. BRADLEY D. DOUCETTE 14 CALIFORNIA HOME BUILDERS & ) [Concurrently filed with [Proposed] Order] 15 DESIGN, INC. dba CALIFORNIA HOMES.) & DESIGNS, INC., a California Corporation; ) DATE: March 26, 2020 16 CALIFORNIA HOMES AND KITCHEN ) TIME: 9:00 a.m. 17 DESIGN CENTER, INC., a California ) DEPT: 20 Corporation; WEC ASSOCIATES, INC., a ) 18 California Corporation; and DOES 2 through ) 100, 19 Complaint Filed: S/19/17 Defendants. FAC Filed: 8/15/17 20 Trial Date: 4/6/20 21 AND RELATED CROSS ACTIONS. ) 22 ) 23 TO ALL PARTIES AND TO THEIR ATTORNEYS OF RECORD HEREIN: 24 PLEASE TAKE NOTICE that on March 26, 2020 at 9:00 a.m., or as soon thereafter as this 25 matter may be heard in Department 20 of the above-entitled Court, located at 191 North First Street 26 San Jose, CA 95113, Defendant/Cross-Complainant WEC and Associates, Inc. (“WEC”) will and 27 hereby does move this Court for an order vacating the current trial date of April 6, 2020, the 28 mandatory settlement conference date of April 1, 2020, and all corresponding motion, discovery, and ‘COLLINS COLLINS. FILE #20705 MUIR + STEWART. 1 MOTION TO CONTINUE TRIAL; DECLARATION OF BRADLEY D. DOUCETTE pre-trial cut off dates. WEC therein moves for a new trial date of no earlier than June 1, 2020, or as soon thereafter as the Court’s calendar may accommodate the trial and related dates and deadlines. This motion is made pursuant to California Rules of Court, Rule 3.1332, et seq. and Code of Civil Procedure section 1005, and is based upon grounds that good cause exists for the requested relief. As is stipulated between the parties, additional damages and additional bases for liability have arose, and the parties will need to conduct further investigation and analysis of these new allegations. Further, the parties have been engaged in substantial discovery efforts, including taking multiple depositions of all parties involved and exchanging extensive written discovery, and the parties are in agreement that that these efforts have and will aid in analysis of the new allegations as well as support 10 the ongoing settlement discussions that have been conducted thus far. As such, the parties agree that 11 the continuance is needed to allow them to focus their efforts and resources towards settlement as 12 opposed to ongoing discovery and final trial preparations for the upcoming April trial date in this 13 matter. This is the first request for a trial continuance and all parties have stipulated to the trial 14 continuance, as was submitted to the Court on February 26, 2020 in connection to the prior Ex Parte 15 Application brought by WEC. (See Declaration of Bradley D. Doucette, Exhibit A.) 16 This motion is made pursuant to this notice of motion, the attached memorandum of points and 17 authorities, the Declaration of Bradley D. Doucette, the pleadings, papers and records on file in this 18 action and on any oral argument and evidence as may be presented at the hearing on this motion. 19 DATED: March 4, 2020 COLLINS COLLINS MUIR + STEWART LLP 20 < 21 By: 22 BRABEEY D-DOUCEEFE—~ RYAN P. HARLEY 23 Attorneys for Defendant/Cross-Complainant, WEC AND ASSOCIATES, INC. 24 25 26 27 28 ‘COLLINS COLLINS. FILE #20705 MUIR + STEWART. 2 MOTION TO CONTINUE TRIAL; DECLARATION OF BRADLEY D. DOUCETTE MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION: A TRIAL CONTINUANCE IS NECESSARY AND PROPER This matter concerns a lawsuit brought by Plaintiffs Youquin Cao and Xinrong Jiang (collectively “Plaintiffs”), owners of a single-family residence located at 2651 South Court, Palo Alto, California (the “Property”). Plaintiffs allege various issues with the Property, and have brought suit against the general contractor who was retained by Plaintiffs to construct their home, Defendants/Cross-Defendants California Home Builders & Design Inc. dba California Homes & Designs, Inc. and California Homes and Kitchen Design Center, Inc. (collectively “California 10 Homes”), and the architect/engineer/land surveyor for the Property, Defendant/Cross-Complainant 11 WEC and Associates, Inc. (“WEC”). 12 WEC, with the knowledge and support of the parties, brings this motion to continue the trial 13 and all trial-related given the recent introduction of new damages and theories of liability from 14 Plaintiffs ,the ongoing discovery efforts by the parties, and efforts by the parties to continue 15 substantial settlement negotiations. (See Declaration of Bradley D. Doucette (“Doucette Decl.”), 16 Exhibit A.)! A brief continuance of the upcoming trial and related dates would serve the best interest 17 of all parties and allow time for the experts in this complicated matter to explore and reevaluate the 18 additional damages and bases for liability recently raised by Plaintiffs, as well as allow for the parties 19 to focus their efforts and resources towards settlement as opposed to preparing for the April trial date. 20 All parties have stipulated to the continuance and no party will be prejudiced if trial is 21 continued to date of no earlier than June 1, 2020, or as soon thereafter as the Court’s calendar may 22 accommodate the trial and related dates and deadlines. These reasons provide good cause for this trial 23 continuance, and WEC respectfully requests that this court grant a trial continuance so that the parties 24 can adequately prepare the claims and defenses in the instant action. 25 Mt 26 Ml 27 ' On February 26, 2020, WEC brought a Stipulated Ex Parte Application for an Order Continuing the Trial, Mandatory 28 Settlement Conference, and All Trial-Related dates. The Court heard the Ex Parte Application and ordered that a fully noticed Motion to Continue the Trial be submitted per Code. (See Doucette Declaration, Exhibit A.) ‘COLLINS COLLINS. FILE #20705 MUIR + STEWART. 3 MOTION TO CONTINUE TRIAL; DECLARATION OF BRADLEY D. DOUCETTE Il. THIS COURT HAS AUTHORITY TO GRANT THE PARTIES A TRIAL CONTINUANCE UNDER THE CIRCUMSTANCES Under California Rule of Court Rule 3.1332(c), this Court has authority to grant a continuance in the matter upon a showing of good cause by the parties. Each individual case must be considered on its own merits. (Cal. Rules of Court Rule 3.1332(c).) A variety of circumstances may be considered in determining whether good cause exists to the continue the trial, including whether “(7) A significant, unanticipated change in the status of the case as a result of which the case is not ready for trial.” (/d.) The court acknowledges that “[flor many — perhaps all — lawyers, a litigation practice 10 entails a continual barrage of unexpected and unplanned for events.” (Pham v. Nguyen (1997) 54 11 Cal.App.4th 11, 15.) The court encourages trial courts to “accommodate” counsel whenever it was 12 not “impractical” to do so. (/d. at 16.) And while it is true that the trial judge must have control of 13 the courtroom and calendar, “it is equally true that, absent a lack of diligence or other abusive 14 circumstances, a request for a continuance supported by a showing of good cause usually ought to be 15 granted.” (Oliveras v. County of Los Angeles (2004) 120 Cal.App.4th 1389, 1396.) 16 Ii. 17 GOOD CAUSE EXISTS TO CONTINUE THE TRIAL GIVEN A SIGNIFICANT AND 18 UNANTICIPATED CHANGE IN THE STATUS OF THE CASE HAS OCCURRED 19 This Court has authority to grant a continuance in the matter upon a showing of good cause 20 by the parties. (Cal. Rule of Court, Rule 3.1332(c).) Courts are encouraged to accommodate counsel 21 where it is not impractical to do so. (See Pham, supra at 16.) In addition to this overarching policy, 22 the California Rules of Court identify a number of specific factors a court must consider when making 23 a good cause determination in addition to all relevant facts and circumstances: 24 (1) The proximity of the trial date; 25 (2) Whether there was any previous continuance, extension of time, or delay of 26 trial due to any party; 27 (3) The length of the continuance requested; 28 Mit ‘COLLINS COLLINS. FILE #20705 MUIR + STEWART. 4 MOTION TO CONTINUE TRIAL; DECLARATION OF BRADLEY D. DOUCETTE (4) The availability of alternative means to address the problem that gave rise to the motion or application for a continuance; (5) The prejudice that parties or witnesses will suffer as a result of the continuance; (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; (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; 10 (9) Whether all parties have stipulated to a continuance; 11 (10) Whether the interests of justice are best served by a continuance, by the trial 12 of the matter, or by imposing conditions on the continuance; and 13 (11) Any other fact or circumstance relevant to the fair determination of the 14 motion or application. 15 (Cal. Rules of Court Rule 3.1332(d)(1)-(11).) 16 Here, a review of the grounds for continuance as well as the Court’s factors for consideration 17 shows a trial continuance is necessary and proper under the circumstances. First, pursuant to 18 California Rule of Court, Rule 3.1332(c)(7), a significant and unanticipated change in the status of 19 the case has resulted in the case not being ready for trial. Plaintiffs’ attorney, Jeffrey H. Belote, Esq., 20 recently produced additional documents including photographs of the foundation of the Property. 21 (Doucette Decl., Exhibit A.) According to Mr. Belote, those photographs have caused Plaintiffs’ 22 experts to reevaluate additional damages related to the foundation and additional bases for liability. 23 (id.) Plaintiffs conducted an additional inspection of the subject property on or about February 20, 24 2020, and Defense experts conducted an inspection of the subject property on February 26, 2020 at 25 10:00 a.m. including inspecting the test pits drilled by Plaintiffs’ experts. (/d.) As of the time of this 26 motion, the parties have retained at least ten expert witnesses, the depositions of which are set to start 27 on March 17, 2020 and continue through April 2020. (See id.; see also Doucette Decl. 4-5.) Due 28 to this recently discovered evidence and undisclosed theories of liability, as well as the additional ‘COLLINS COLLINS. FILE #20705 MUIR + STEWART. 5 MOTION TO CONTINUE TRIAL; DECLARATION OF BRADLEY D. DOUCETTE ongoing work being conducted by the numerous experts, additional time is necessary to assess the opinions and conclusions of Plaintiffs’ experts prior to their depositions and prior to the fast- approaching trial date. (/d.) Another factor for consideration is whether the parties will be prejudiced if a continuance is not granted. (See Cal. Rules of Court Rule 3.1332(d)(5).) Here, the Parties have engaged in, and continue to engage in, substantive settlement discussions with mediator Brad Benning, Esq. and have scheduled a mediation with Mr. Benning on March 13, 2020 in an effort to continue such settlement discussions and attempt to resolve the matter. (Doucette Decl., 493-5 and Exhibit A.) Plaintiffs are expected to provide additional materials concerning their experts’ reevaluation of damages sometime 10 prior to the March 13, 2020 mediation, and should the matter not resolve, the parties have tentatively 11 agreed to begin conducting expert witness depositions on or around March 17, 2020 depending on 12 the availability of counsel and the expert witnesses. (/d.) The parties anticipate taking at least ten to 13 twelve expert depositions, and based on the availability of counsel and the experts as well as the need 14 for the opinions and testimony of Plaintiffs’ experts, the parties will not be able to conduct all expert 15 depositions by the time of trial. (/d.) As such and in light of the currently scheduled trial date, the 16 parties will be prejudiced if unable to finalize expert discovery prior to trial. 17 Another consideration for the Court is whether the parties’ have stipulated to the continuance, 18 which the parties have in this matter. (Cal. Rules of Court Rule 3.1332(d)(9); see also (Doucette 19 Decl., Exhibit A.) The Court may also consider the proximity of the trial date, the length of the 20 continuance requested, whether any prejudice will be suffered as a result of the continuance, and 21 whether the interest of judices are best served by a continuance. (See Cal. Rules of Court Rule 22 3.1332(d)(1), (3), (6), and (10).) Here, this brief request comes just over a month before the trial date, 23 and seeks a continuance of only two to three months. (Doucette Decl. at {6-8 and Exhibit A.) The 24 parties agree that they will not suffer any prejudice by this short continuance. (/d.) Also, pursuant to 25 California Rules of Court Rule 3.1332(d)(8), the Court may consider whether trial counsel is engaged 26 in another trial — trial counsel for WEC is engaged in a trial only a week before the April trial date. 27 (id.) 28 Mit ‘COLLINS COLLINS. FILE #20705 MUIR + STEWART. 6 MOTION TO CONTINUE TRIAL; DECLARATION OF BRADLEY D. DOUCETTE Finally, pursuant to California Rules of Court, Rule 3.1332(d)(9), this is the first request for a continuance in the matter by any party. (/d.) IV. CONCLUSION This is a complicated matter, and as outlined herein, recent events and changing theories of liability beg the need for more time to evaluate the issues and prepare for trial. Accordingly, WEC, with the support and stipulation of all parties, hereby moves for a new trial date of no earlier than June 1, 2020, or as soon thereafter as the Court’s calendar may accommodate the trial and related dates and deadlines. WEC has shown good cause justifies a continuance and that none of the parties 10 will be prejudiced and will only benefit form a continuance. 11 DATED: March 4, 2020 COLLINS COLLINS MUIR + STEWART LLP 12 13 By: 14 BRABEEY D-DOUCEEFE—~ RYAN P. HARLEY 15 Attorneys for Defendant/Cross-Complainant, WEC AND ASSOCIATES, INC. 16 17 18 19 20 21 22 23 24 25 26 27 28 ‘COLLINS COLLINS. FILE #20705 MUIR + STEWART. 7 MOTION TO CONTINUE TRIAL; DECLARATION OF BRADLEY D. DOUCETTE DECLARATION OF BRADLEY D. DOUCETTE I, Bradley D. Doucette, declare: 1 I am an attorney in good standing, admitted and licensed to practice before the courts of the State of California. I am an associate with the law firm of Collins Collins Muir + Stewart, LLP, counsel of record for Defendant/Cross-Complainant WEC and Associates, Inc. (“WEC”) I have personal knowledge of the facts stated herein, except as to those matters that I state upon information and belief, and as to those matters I believe them to be true. If called upon to testify, I could and would competently do so. 2. Currently pending in this matter are the following dates which were set by the Court: 10 Trial Date: April 6, 2020 11 Mandatory Settlement Conference: April 1, 2020 12 3 The parties have entered into a stipulation to continue the trial, mandatory settlement 13 conference, and all trial-related dates. Attached hereto as Exhibit A is a true and correct copy of the 14 stipulation between the parties which was filed with this Court on February 26, 2020 with WEC’s 15 Stipulated Ex Parte Application for an Order Continuing the Trial. Exhibit A also contains the Order 16 by this Court setting a Motion to Continue Trial for March 26, 2020. I personally appeared for the 17 Stipulated Ex Parte Application hereto and was informed by the Honorable Socrates P. Manoukian 18 that the request for a trial continuance needed to be brought by a noticed motion. This stipulation is 19 based on new theories of damages and liability by the Plaintiffs, ongoing discovery efforts by all 20 parties, as well as ongoing settlement discussions between all parties and their counsel. At the time 21 of filing of this motion, the parties are scheduled to participate in a mediation with mediator Brad 22 Benning, Esq. on March 13, 2020. 23 4 On or around January 21, 2020, counsel for Plaintiffs Yoquin Cao and Xinrong Jiang 24 (“Plaintiffs”) produced additional documents to all parties including photographs of the foundation 25 of the subject property to this lawsuit. Some of these documents have been used as exhibits in recent 26 depositions, such as the deposition of California Homes’ Simon Krek. For example, attached hereto 27 as Exhibit B is a true and correct copy of correspondence from Plaintiffs’ counsel to all counsel 28 containing two exhibits that were produced and used in a recent deposition. I am informed and believe ‘COLLINS COLLINS. FILE #20705 MUIR + STEWART. 8 MOTION TO CONTINUE TRIAL; DECLARATION OF BRADLEY D. DOUCETTE that these documents and others, paired with the deposition testimony of party witnesses thus far, has recently caused Plaintiffs’ experts to reevaluate additional damages and bases for liability. Plaintiffs’ experts are expected to provide additional reports and/or analyses concerning their experts’ reevaluation of damages prior to March 13, 2020. Accordingly, WEC and Defendants/Cross- Defendants California Home Builders & Design Inc. dba California Homes & Designs, Inc. and California Homes and Kitchen Design Center, Inc. (collectively “California Homes”) will require additional time to evaluate any and all supplemental materials and opinions provided by Plaintiffs’ experts and prepare defenses and responses accordingly. 5 In advance of the March 13, 2020 mediation, the parties have met and conferred at 10 length in good faith with each other regarding settlement discussions, necessary expert discovery, 11 depositions, and the need for a brief trial continuance. Numerous percipient witness depositions have 12 taken place, and the parties have tentatively agreed to begin taking depositions of expert witnesses 13 on or around March 17, 2020 based on the availability of counsel and expert witnesses. The parties 14 have discussed taking the Plaintiffs’ experts’ depositions in late March, followed by the depositions 15 of expert witnesses for WEC and California Homes in early to mid-April. I am informed and believe 16 that Plaintiffs’ experts’ deposition testimony will need to be reviewed by the other expert witnesses 17 in preparation for their depositions and in connection with forming their expert opinions and 18 conclusions in this matter. 19 6 After entering into a stipulation regarding a trial continuance, the parties agreed that a 20 brief continuance until at least June 1, 2020 was acceptable. I am informed and believe that on or 21 around 4:00 p.m. on Tuesday, February 25, 2020, counsel for all parties met and conferred and further 22 confirmed their availability for a trial continuance until June 1, 2020 through July 15, 2020, and/or 23 later pending the Court’s availability. Further, trial counsel for WEC, Ryan P. Harley, is set to begin 24 trial on another matter on March 30, 2020 (Macarthur Transit Community v. Sandis Civil Engineers, 25 Alameda County Superior Court, Case No. HG18899280) and has informed the other parties as such. 26 7 There have been no other requests for trial continuances in this matter by any party. 27 If 28 Mit ‘COLLINS COLLINS. FILE #20705 MUIR + STEWART. 9 MOTION TO CONTINUE TRIAL; DECLARATION OF BRADLEY D. DOUCETTE 8 There would be no prejudice to any party by the granting of a trial continuance and to allow for the orderly completion of discovery and expert investigation. However, the parties would be prejudiced by not having this necessary evidence accumulated and evaluated prior to trial. 9. I sent a draft of this motion to counsel for all parties on March 3, 2020 via email and sked for comments and objections, if any. Attached hereto as Exhibit C is a true and correct copy of that email correspondence. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed this 4" day of March, 2020 at Oakland, California. 10 i 11 BRABEFY D-DOUCETFE—~ 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ‘COLLINS COLLINS. FILE #20705 MUIR + STEWART. 10 MOTION TO CONTINUE TRIAL; DECLARATION OF BRADLEY D. DOUCETTE EXHIBIT " ILE FEB 2 6 2020 f the Sourt Superior, Of Banta Clara By, EPUTY SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SANTA CLARA 10 YOUQIN CAO, an Individual, and CASE NO. 17CV310601 11 XINRONG JIANG, an Individual, [Assigned to Hon. MaureenA. Folan, Dept. 6] 12 Plaintiffs, STIPULATION OF THE PARTIES TO 13 CONTINUE TRIAL AND ALL TRIAL- vs. RELATED DATES;4PROPOSED] ORDER 14 CALIFORNIA HOME BUILDERS & 15 DESIGN, INC. dba CALIFORNIA HOMES & DESIGNS, INC., a California Corporation; 16 CALIFORNIA HOMES AND KITCHEN 17 DESIGN CENTER, INC., a California Corporation; WEC ASSOCIATES, INC., a 18 California Corporation; and DOES 2 through 100, 19 Complaint Filed: S/L9/17 Defendants. FAC Filed: 8/15/17 20 Trial Date: 4/06/20 21 AND RELATED CROSS ACTIONS. 22 _ 23 24 25 26 27 28 1 STIPULATION TO CONTINUE TRIAL; [PROPOSED] ORDER ClarkHill\67652\383450\2233605 1 1.v1-2/24/20 Saee ee TO THE HONORABLE COURT AND TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD HEREIN: Plaintiffs Youquin Cao and Xinrong Jiang (collectively “Plaintiffs”), Defendant California Home Builders & Design Inc. dba California Homes & Designs, Inc. and California Homes and Kitchen Design Center, Inc. (collectively “California Homes”), and Defendants WEC and Associates, Inc. (*WEC”) (collectively “the Parties”) do hereby stipulate and agree as follows: WHEREAS, the Trial date in this matter is currently set for April 6, 2020 at 8:45 a.m., and the Mandatory Settlement Conference is currently set for April 1, 2020 at 9:00 a.m.; WHEREAS, the Parties propose a brief Trial continuance of thirty to forty-five days, with the 10 parties preference being that the Trial date be set for the week of May 4, 2020, or a date as reasonably il close to the thirty to forty-five-day timeframe as possible, pending the Court’s availability; 12 WHEREAS, good cause exists to continue the Trial and all Trial-related dates in this matter 13 as the Parties have engaged in, and continue to engage in, substantive settlement discussions with 14 mediator Brad Benning, Esq. and have scheduled a mediation with Mr. Benning on March 13, 2020 15 in an effort to continue such settlement discussions and attempt to resolve the matter. The Parties 16 have been engaged in substantial discovery efforts, including taking multiple depositions of all parties 17 involved and exchanging extensive written discovery, and the Parties agree that these efforts have 18 and will aid in settlement discussions at the forthcoming mediation. The Parties agree that the 19 continuance is needed to allow the Parties to focus their efforts and resources towards settlement as 20 opposed to ongoing discovery final Trial preparations for the upcoming April trial date in this matter: 21 WHEREAS, Plaintiffs’ attorney, Jeffrey H. Belote, Esq., recently produced additional 22 documents before the conclusion of depositions of his clients including photographs of the foundation 23 of the subject property. According to Mr. Belote, those photographs had caused Plaintiffs experts to 24 reevaluate additional damages related to the foundation and additional bases for liability. Plaintiffs 25 conducted an additional inspection of the subject property on or about February 20, 2020, and 26 Defense experts are scheduled to conduct another inspection of the subject property on February 26, 27 2020 beginning at 10:00 a.m. including inspecting the test pits drilled by Plaintiffs experts. Due to 28 2 STIPULATION TO CONTINUE TRIAL; [PROPOSED] ORDER Clark Hill\67652\383450\223360511.v1-2/24/20 these recently discovered photographs and the additional work being conducted by the experts, it is anticipated that the experts will need additional time to assess the new information prior to their depositions. Accordingly, the Parties agree that at least ten to twelve expert depositions will need to be conducted prior to the current Trial date. WHEREAS, no Parties in this matter have previously requested a Trial continuance; WHEREAS, the Parties agree that the short continuance would promote judicial economy and no prejudice by any of the Parties will be suffered by the short continuance of the Trial date and all Trial-related dates; WHEREAS, the Parties agree that all dates and deadlines, including discovery cutoffs and 10 dispositive motion deadlines, shall correspond to the continued trial date. ll If IS FURTHER AGREED that this Stipulation may be singed in counterparts and that 12 signatures transmitted via facsimile or electronically shall be given the same force and effect as if 13 originals, and all of the counterparts when executed and taken together shall constitute one and the 14 same instrument, 15 IT IS SO STIPULATED, 16 17 DATED: February 24, 2020 CLARK HILL LLP 18 19 By: Sx\ 20 EFFRB . BELO’ , ESQ. ‘AL, A, ESQ. 21 At s¥fer Plaintiffs/Cross-Defendants YOUQIN CAO and XINRONG JIANG 22 23 DATED: February 24, 2020 COLLINS COLLINS MUIR + STEWART LLP 24 25 By RYAN P. HARLEY, ESQ, 26 BRADLEY D. DOUCETTE, ESQ. 27 Attorneys for Defendant/Cross-Complainant, WEC AND ASSOCIATES, INC. 28 3 STIPULATION TO CONTINUE TRIAL; [PROPOSED] ORDER ClarkHill\67652\383450\223360511.v1-2/24/20 these recently discovered photographs and the additional work being conducted by the experts, it is anticipated that the experts will need additional time to assess the new information prior to their depositions. Accordingly, the Parties agree that at least ten to twelve expert depositions will need to be conducted prior to the current Trial date. WHEREAS, no Parties in this matter have previously requested a Trial continuance: WHEREAS, the Parties agree that the short continuance would promote judicial economy and no prejudice by any of the Parties will be suffered by the short continuance of the Trial date and all Trial-related dates; WHEREAS, the Parties agree that all dates and deadlines, including discovery cutoffs and 10 dispositive motion deadlines, shall correspond to the continued trial date 11 IT IS FURTHER AGREED that this Stipulation may be singed in counterparts and that 12 signatures transmitted via facsimile or electronically shall be given the same force and effect as if 13 originals, and all of the counterparts when executed and taken together shall constitute one and the 14 same instrument. 15 IT IS SO STIPULATED. 16 17 DATED: February 24, 2020 CLARK HILL LLP 18 19 By 20 JEFFREY H. BELOTE, ESQ: MELISSA PALAZOLA, ESQ 21 Attorneys for Plaintiffs/Cross-Defendants YOUQIN CAO and XINRONG JIANG 22 23 DATED: February 24, 2020 COLLINS COLLINS MUIR + STEWART LLP 24 25 AS 26 TIE RYAN P. HARLEY, ESQ. 27 Attorneys for Defendant/Cross-Complainant WEC AND ASSOCIATES, INC. 28 3 STIPULATION TO CONTINUE TRIAL; [PROPOSED] ORDER ClarkHill\67652\383450\223360511 .v1-2/24/20 DATED: February 24, 2020 KENNEDY & SOUZA, APC 2B fh phar ¢ a By: KEVIN P. KENNEDY, ESQ. E. VAL. MENESES, ESQ. Associated with: \ DATED: February 24, 2020 OFFICES OF BR BSTON By \\ BRI PRESTONYESQ. 10 il Attorneys for Defendants/Cross-Complainants CALIFORNIA HOME BUILDERS & DESIGN, 12 INC. dba CALIFORNIA HOMES & DESIGNS, INC., CALIFORNIA HOMES AND KITCHEN 13 DESIGN CENTER, INC. 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4 STIPULATION TO CONTINUE TRIAL; [PROPOSED] ORDER ClarkHill\67652\383450\223360511.v1-2/24/20 PROPOSED] ORDER Having read and reviewed the foregoing Stipulation of the Parties, and having found good cause therefor. IT IS HEREBY ORDERED that: 1 Goodcat tsts-for-ar-comtinaance of the triat and Mandatory Settlement Conference 2. —tatess—, Thef[rial inte onitiywo Tih. a3 3[26|2020 9* date ebexprit6>2026-shat-be-contimred+ Ca COLD Gels alt iment 3 in PEP An tebe, April 1, 2020 shall be continued to 10 at 9:00 a.m. in Department 3 il 4. All Tri ed dates and clu! $ and dispositive motion 12 deadlines, s| continued Trial date 13 IT IS SO ORDERED. 14 15 patep: 2 Prove Vo 16 l JUD, FT ERIOR COURT 17 18 19 20 21 22 23 24 25 26 27 28 5 STIPULATION TO CONTINUE TRIAL; [PROPOSED] ORDER Clark Hill\67652\383450\22336051 1.v1-2/24/20 PROOF OF SERVICE (CCP gg 1013(a) and 2015.5; FRCP 5) State of California, ss. County of San Diego am employed in the County of San Diego, State of California. I am over the age of 18 and not a party to the within action; my business address is 2011 Palomar Airport Road, Suite 207, Carlsbad, California 92011. On this date, I served the foregoing document described as STIPULATION OF THE PARTIES TO CONTINUE TRIAL AND ALL TRIAL-RELATED DATES; [PROPOSED] ORDER on the interested parties in this action by placing same in a sealed envelope, addressed as follows: SEE ATTACHED SERVICE LIST BY MAIL) - I caused such envelope(s) with postage thereon fully prepaid to be placed in the United States mail in Oakland, Californi to be served on the parties as indicated on the attached service list. I am “readily familiar” with the firm’s practice of collection and processing correspondence for mailing. Under that practice, it would be deposited with the U.S, Postal Service on that same day wit postage thereon fully prepaid at Oakland, California in the ordinary course of business. I am aware that on motion of the party served! service is presumed invalid if postal cancellation date or postage meter date is more than one day after date of deposit for mailing i 10 affidavit, (BY CERTIFIED MAIL) ~ I caused such envelope(s) with postage thereon fully prepaid via Certified Mail Retum Receipt Requested 11 to be placed in the United States Mail in Oakland, California. 12 BY EXPRESS MAIL OR ANOTHER METHOD OF DELIVERY PROVID! FOR OVERNIGHT DELIVERY 13 (BY ELECTRONIC FILING AND/OR_ SERVICE) ~ I served a true copy, with all exhibits, electronically on designated recipients listed on the attached Service List on: February 25, 2020 14 EDERAL EXPRESS - | caused the envelope to be delivered to an authorized courier or driver authorized to receive documents witl delivery fees provided for. 15 (BY FACSIMILE) - I caused the above-described document(s) to be transmitted to the offices of the interested parties at the facsimil 16 number(s) indicated on the attached Servi List and the activity report(s) generated by facsimile number (510) 844-5101 indicated al Pages were transmitted. 17 BY PERSONAL SERVICE) - I caused such envelope(s) to be delivered by hand to the office(s) of the addressee(s). 18 Executed on February 25, 2020 at Carlsbad, California. 19 BJ (STATE) - [declare under penalty of perjury under the laws of the State of California that the above is true and correct. 20 (1 EDERAL) - | declare that I am employed in the office of a member of the bar of this court at whose direction the service was made. 21 22 23 VICKI WOOD ywood@ cemslaw.com | legalservices@cemslaw.com 24 25 26 27 28 ‘COLLINS COLLINS faut IRlrrison + STEWARY St, Ste RT| Oakland, CA s46i2 20705 Phone (510) 844-5100 Fax (610) 644.5101 PROOF OF SERVICE YOUQIN CAO and XINRONG JIANG », CALIFORNIA HOME BUILDERS & DESIGN, INC., et al. SANTA CLARA COUNTY SUPERIOR COURT CASE NO. 17CV310601 OUR FILE NO, 20705 SERVICE LI Jeffrey H. Belote, Esq Brian Preston, Esq. CLARK HILL LLP LAW OFFICES OF BRIAN PRESTON One Embarcadero Center, Suite 400 111 North Marke