Preview
Michael F. Brown, Esq. (Bar N0. 164593)
LAW OFFICE OF MICHAEL F. BROWN
2010 Crow Can 0n Place, Suite 100
San Ramon, Ca ifomia 94583 FILED
Telephone: (925) 824-3 101
MAY l 6 2018
Attorneys for Defendant,
OWQ¢NUIAWNH
ARUN RAVIDRAN
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SANTA CLARA
xxxxx xxxxxxx, as an individual CASE NO. 115CV287890
and successor in interest on behalf of the
NATVARLAL xxxxxxx,
estate of
xxxxxx xxxxxxx, as an individual, MEMORANDUM 0F POINTS AND
and xxxxxx xxxxxxx, as an AUTHORITIES IN SUPPORT 0F Ex
individual, PARTE APPLICATION FOR ORDER
SHORTENING TIME FOR NOTICE
Plaintiffs, AND HEARING 0N DEFENDANT’S
MOTION FOR JUDGMENT 0N THE
vs. PLEADINGS As To CERTAIN
CAUSES 0F ACTION [NEGLIGENCE,
ARUN RAVIDRAN, an individual, and NEGLIGENCE PER SE, Loss 0F
DOES 1 through 25, CONSORTIUM, AND SURVIVAL
ACTION]
NNNNNNNNNH—AH—u—r—m—Hy—
Defendants.
wQ$UIAbJNHGVDWQ$UIAMNHG
[Complaint filed: 11/10/2015]
Trial: June 4, 2018 0r June 11, 2018
I.
INTRODUCTION
1
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF EX PARTE
APPLICATION FOR ORDER SHORTENING TIME FOR NOTICE AND
HEARING ON DEFENDANT’S MOTION FOR JUDGMENT ON THE
PLEADINGS AS TO CERTAIN CAUSES OF ACTION [NEGLIGENCE,
NEGLIGENCE PER SE, LOSS OF CONSORTIUM, AND SURVIVAL ACTION]
Good Cause exists for the court t0 hear Defendant’s motion on shortened time as
H
trial is scheduled in early or mid-June depending upon the court’s ruling on plaintiff
counsel’s request for a brief continuance of the trial date. There is no time to bring a
regularly-scheduled noticed motion. Defendant’s intended motion is authorized by
California law to be brought on the eve of trial.
Good cause also exists for the court to hear Defendant’s motion 0n shortened time
\GWNQUIAMN
because Defendant will be irreparably harmed and the court will, respectfully, be subject t0
appeal, should Defendant be precluded from proceeding with his motion.
Plaintiffs have brought a Complaint with causes of action that either d0 not apply in this
action or evidence does not support their being brought to trial. Plaintiffs allege that the
Hc husband of plaintiff Rehka xxxxxxx, and father of plaintiffs xxxxxx and xxxxxx xxxxxxx, was
HH killed as a pedestrian by a vehicle driven by Defendant Ravidran. The decedent was
HN Natvarlal xxxxxxx. The evidence shows that he never regained consciousness. Therefore,
H DJ
plaintiffs’ cause of action for survival action has no evidence to support it before a jury.
flfi
There is also no evidence that any violation of law took place. The investigating
police did not cite the Defendant and the District Attorney did not charge him with any
u U]
pa
crime. As such, plaintiffs’ cause of action for negligence per se had no evidence to support
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it before a jury.
ht \l
Additionally, as plaintiffs have pled a cause of action for wrongful death, they
uN
cannot also maintain a cause of action for negligence. Negligence is incorporated in the
H \O
wrongful death cause of action. Negligence is not pled when a death results from an
NG
alleged wrongful act. Wrongful Death is pled in such a circumstance and this is determined
Nfl
by California statute as are the damages that can be sought. Further, as negligence is an
NN incorrect or improper cause of action in this case, so too is loss of consortium, which is a
N DJ negligence cause of action damage and not one that can be sought with wrongful death.
NA
N UI 2
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT 0F EX PARTE
APPLICATION FOR ORDER SHORTENING TIME FOR NOTICE AND
HEARING ON DEFENDANT’S MOTION FOR JUDGMENT ON THE
NNN MQ$
PLEADINGS AS TO CERTAIN CAUSES OF ACTION [NEGLIGENCE,
NEGLIGENCE PER SE, LOSS OF CONSORTIUM, AND SURVIVAL ACTION]
The court’s and the jury’s time will be unnecessarily wasted at trial should the
afore-noted causes of action be allowed to be argued to a jury; the jury will be confused as
the issues will be confused; and the Defendant will be prejudiced by this confusion.
II.
“@MAWN
THE COURT IS AUTHORIZED TO SHORTEN TIME FOR
NOTICE AND HEARING OF THE PROPOSED MOTION
California Code of Civil Procedure, Section 1005 prescribes the times for written
notice 0f motions and for the service and filing of supporting and opposing papers. CCP,
Section 1005(b) provides that “the court 0r judge thereof may prescribe a shorter time”
\Gw
than otherwise prescribed in Section 1005.
10 California Rules ofCourt, Rule 3. 1300(b) states: The court on its own motion 0r on
11 application for an order shortening time supported by a declaration showing good cause
12 may prescribe shorter times for the filing and service of papers than the time specified in
13 CCP, Section 1005.
14
As stated in Defendant’s Notice and Declaration submitted herewith, good cause
exists to shorten time for the hearing on Defendant’s Motion for Judgment 0n the
15
Pleadings.
16
III.
17
EX PARTE RELIEF IS WARRANTED UNDER THE CIRCUMSTANCES
18
An applicant must make an affirmative factual showing in a declaration containing
l9
competent testimony based on personal knowledge 0f irreparable harm, immediate danger,
20
0r any other statutory basis for granting relief ex parte. California Rules of Court, Rule
21
3.1202(c).
22
As stated in the Declaration 0f Michael F. Brown, Esq., filed herewith Defendant
www—W—WW
23 will be irreparably harmed if he is not granted ex parte relief rather than setting the matter
24 for hearing on regular noticed motion. Time is of the essence. Trial is just weeks away.
25
26 APPLICATION FOR ORDER SHORTENING TIME FOR NOTICE AND
HEARING ON DEFENDANT’S MOTION FOR JUDGMENT 0N THE
27 PLEADINGS AS TO CERTAIN CAUSES OF ACTION [NEGLIGENCE,
NEGLIGENCE PER SE, LOSS OF CONSORTIUM, AND SURVIVAL ACTION]
28
IV.
COUNSEL HAS FULLY COMPLIED WITH CALIFORNIA
RULES OF COURT, RULES 3.1203 AND 3.1204
Among other provisions, Cal. Rules of Court, Rule 3. 1203 provides as follows:
A party seeking an ex parte order must notify all parties no later than 10:00 a.m. the
\lfiUIAWN
court day before the ex parte appearance, absent a showing of exceptional circumstances
that justify a shorter time for notice. California Rules of Court, Rule 3. 1203(a).
An ex parte application must be accompanied by a declaration regarding notice
stating: (1) the notice given, including date, time, manner, and name of party informed, the
\OM
relief sought, whether opposition is expected and that within the applicable time under
10 Rule 3. 1203 the applicant informed the opposing party where and when the application
ll would be made. California Rules ofCourt, Rule 3.1204(b). Here, as the Declaration of
12 Michael F. Brown, Esq. filed herewith evidences, Defendant has complied with these
13 notice requirements.
V.
14
15
CONCLUSION
In view of the foregoing facts and authorities, and the matters set forth in the
16
Declaration of Michael F. Brown, Esq. filed herewith, Defendant hereby submits that good
l7
cause exists for an ex parte Order shortening time for notice and hearing Defendant’s
18
Motion for Judgment on the Pleadings as to certain causes of action [negligence,
19
negligence per se, loss of consortium, and survival action].
20
DATED: May 15, 2018
21
22
23
24
25 4
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF EX PARTE
26 APPLICATION FOR ORDER SHORTENING TIME FOR NOTICE AND
HEARING ON DEFENDANT’S MOTION FOR JUDGMENT ON THE
27 PLEADINGS AS TO CERTAIN CAUSES OF ACTION [NEGLIGENCE,
NEGLIGENCE PER SE, LOSS OF CONSORTIUM, AND SURVIVAL ACTION]
28
LAW OFFIC / ‘
OF MICHAEL F. BROWN
/ _7
//////////»)
By: \
1
MIC AEL .BROWN
Attorneys for endan ,
ARUN RAVIDRAN
\quamthH
NNNNNNNNNI—tu—Hr—tr—Hu—Hau
OOQ¢WAUJN~OOOOQ$UIAMNHG
5
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF EX PARTE
APPLICATION FOR ORDER SHORTENING TIME FOR NOTICE AND
HEARING ON DEFENDANT’S MOTION FOR JUDGMENT ON THE
PLEADINGS AS TO CERTAIN CAUSES OF ACTION [NEGLIGENCE,
NEGLIGENCE PER SE, LOSS OF CONSORTIUM, AND SURVIVAL ACTION]
PROOF OF SERVICE
F' L ED
I
xxxxxxx v. Ravidran. et a1.
MAY l 6 2013
’
STATE OF CALIFORNIA, COUNTY OF SANTA CLARA
Case No. 115CV287890
w mm;
" "
mm
\OflflQUIfib-INH
I am em
loyed in the County of CONTRA
COSTA, STATE OF CALIFORNIA.
My business a dress is 2010 Crow Canyon Place, Suite 100, San Ramon, 94583. I am CA
over the age of eighteen years and am not a party to the within action;
On May 15, 2018, I served the followin%document(s) entitled MEMORANDUM
OF POINTS AND AUTHORITIES IN SUPP RT OF EX PARTE APPLICATION
FOR ORDER SHORTENING TIME FOR NOTICE AND HEARING ON
DEFENDANT’S MOTION FOR JUDGMENT ON THE PLEADINGS AS TO
CERTAIN CAUSES OF ACTION [NEGLIGENCE, NEGLIGENCE PER SE, LOSS
OF CONSORTIUM, AND SURVIVAL ACTION] on ALL INTERESTED PARTIES in
action by placing true copies thereof enclosed in sealed envelopes addressed as
tfhil?
o ows:
Asit S. Panwala, Esq. Attorneys for Plaintiff
LAW OFFICE OF ASIT PANWALA
4 Embarcadero Center, Suite 1400
San Francisco, CA 941 11
Telephone: (415) 766-3526
Facsmile: (415) 402-0058
asit@panwalalaw.com
BY FACSIMILE:
NNNNNNNNHHt—u—r—Hr—tr—v—H
I declare under penalty of perjury under the laws 0f the State of California that the
foregoing is true and correct.
gfl¢UIAMNHG©wanIAmNH¢
Executed on May 15, 2018, at San RamongC i
«Air'%
\
[\wlcéAy-BW
Preview
Michael F. Brown, Esq. (Bar N0. 164593) LAW OFFICE OF MICHAEL F. BROWN 2010 Crow Can 0n Place, Suite 100 San Ramon, Ca ifomia 94583 FILED Telephone: (925) 824-3 101 MAY l 6 2018 Attorneys for Defendant, OWQ¢NUIAWNH ARUN RAVIDRAN SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SANTA CLARA xxxxx xxxxxxx, as an individual CASE NO. 115CV287890 and successor in interest on behalf of the NATVARLAL xxxxxxx, estate of xxxxxx xxxxxxx, as an individual, MEMORANDUM 0F POINTS AND and xxxxxx xxxxxxx, as an AUTHORITIES IN SUPPORT 0F Ex individual, PARTE APPLICATION FOR ORDER SHORTENING TIME FOR NOTICE Plaintiffs, AND HEARING 0N DEFENDANT’S MOTION FOR JUDGMENT 0N THE vs. PLEADINGS As To CERTAIN CAUSES 0F ACTION [NEGLIGENCE, ARUN RAVIDRAN, an individual, and NEGLIGENCE PER SE, Loss 0F DOES 1 through 25, CONSORTIUM, AND SURVIVAL ACTION] NNNNNNNNNH—AH—u—r—m—Hy— Defendants. wQ$UIAbJNHGVDWQ$UIAMNHG [Complaint filed: 11/10/2015] Trial: June 4, 2018 0r June 11, 2018 I. INTRODUCTION 1 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF EX PARTE APPLICATION FOR ORDER SHORTENING TIME FOR NOTICE AND HEARING ON DEFENDANT’S MOTION FOR JUDGMENT ON THE PLEADINGS AS TO CERTAIN CAUSES OF ACTION [NEGLIGENCE, NEGLIGENCE PER SE, LOSS OF CONSORTIUM, AND SURVIVAL ACTION] Good Cause exists for the court t0 hear Defendant’s motion on shortened time as H trial is scheduled in early or mid-June depending upon the court’s ruling on plaintiff counsel’s request for a brief continuance of the trial date. There is no time to bring a regularly-scheduled noticed motion. Defendant’s intended motion is authorized by California law to be brought on the eve of trial. Good cause also exists for the court to hear Defendant’s motion 0n shortened time \GWNQUIAMN because Defendant will be irreparably harmed and the court will, respectfully, be subject t0 appeal, should Defendant be precluded from proceeding with his motion. Plaintiffs have brought a Complaint with causes of action that either d0 not apply in this action or evidence does not support their being brought to trial. Plaintiffs allege that the Hc husband of plaintiff Rehka xxxxxxx, and father of plaintiffs xxxxxx and xxxxxx xxxxxxx, was HH killed as a pedestrian by a vehicle driven by Defendant Ravidran. The decedent was HN Natvarlal xxxxxxx. The evidence shows that he never regained consciousness. Therefore, H DJ plaintiffs’ cause of action for survival action has no evidence to support it before a jury. flfi There is also no evidence that any violation of law took place. The investigating police did not cite the Defendant and the District Attorney did not charge him with any u U] pa crime. As such, plaintiffs’ cause of action for negligence per se had no evidence to support Q it before a jury. ht \l Additionally, as plaintiffs have pled a cause of action for wrongful death, they uN cannot also maintain a cause of action for negligence. Negligence is incorporated in the H \O wrongful death cause of action. Negligence is not pled when a death results from an NG alleged wrongful act. Wrongful Death is pled in such a circumstance and this is determined Nfl by California statute as are the damages that can be sought. Further, as negligence is an NN incorrect or improper cause of action in this case, so too is loss of consortium, which is a N DJ negligence cause of action damage and not one that can be sought with wrongful death. NA N UI 2 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT 0F EX PARTE APPLICATION FOR ORDER SHORTENING TIME FOR NOTICE AND HEARING ON DEFENDANT’S MOTION FOR JUDGMENT ON THE NNN MQ$ PLEADINGS AS TO CERTAIN CAUSES OF ACTION [NEGLIGENCE, NEGLIGENCE PER SE, LOSS OF CONSORTIUM, AND SURVIVAL ACTION] The court’s and the jury’s time will be unnecessarily wasted at trial should the afore-noted causes of action be allowed to be argued to a jury; the jury will be confused as the issues will be confused; and the Defendant will be prejudiced by this confusion. II. “@MAWN THE COURT IS AUTHORIZED TO SHORTEN TIME FOR NOTICE AND HEARING OF THE PROPOSED MOTION California Code of Civil Procedure, Section 1005 prescribes the times for written notice 0f motions and for the service and filing of supporting and opposing papers. CCP, Section 1005(b) provides that “the court 0r judge thereof may prescribe a shorter time” \Gw than otherwise prescribed in Section 1005. 10 California Rules ofCourt, Rule 3. 1300(b) states: The court on its own motion 0r on 11 application for an order shortening time supported by a declaration showing good cause 12 may prescribe shorter times for the filing and service of papers than the time specified in 13 CCP, Section 1005. 14 As stated in Defendant’s Notice and Declaration submitted herewith, good cause exists to shorten time for the hearing on Defendant’s Motion for Judgment 0n the 15 Pleadings. 16 III. 17 EX PARTE RELIEF IS WARRANTED UNDER THE CIRCUMSTANCES 18 An applicant must make an affirmative factual showing in a declaration containing l9 competent testimony based on personal knowledge 0f irreparable harm, immediate danger, 20 0r any other statutory basis for granting relief ex parte. California Rules of Court, Rule 21 3.1202(c). 22 As stated in the Declaration 0f Michael F. Brown, Esq., filed herewith Defendant www—W—WW 23 will be irreparably harmed if he is not granted ex parte relief rather than setting the matter 24 for hearing on regular noticed motion. Time is of the essence. Trial is just weeks away. 25 26 APPLICATION FOR ORDER SHORTENING TIME FOR NOTICE AND HEARING ON DEFENDANT’S MOTION FOR JUDGMENT 0N THE 27 PLEADINGS AS TO CERTAIN CAUSES OF ACTION [NEGLIGENCE, NEGLIGENCE PER SE, LOSS OF CONSORTIUM, AND SURVIVAL ACTION] 28 IV. COUNSEL HAS FULLY COMPLIED WITH CALIFORNIA RULES OF COURT, RULES 3.1203 AND 3.1204 Among other provisions, Cal. Rules of Court, Rule 3. 1203 provides as follows: A party seeking an ex parte order must notify all parties no later than 10:00 a.m. the \lfiUIAWN court day before the ex parte appearance, absent a showing of exceptional circumstances that justify a shorter time for notice. California Rules of Court, Rule 3. 1203(a). An ex parte application must be accompanied by a declaration regarding notice stating: (1) the notice given, including date, time, manner, and name of party informed, the \OM relief sought, whether opposition is expected and that within the applicable time under 10 Rule 3. 1203 the applicant informed the opposing party where and when the application ll would be made. California Rules ofCourt, Rule 3.1204(b). Here, as the Declaration of 12 Michael F. Brown, Esq. filed herewith evidences, Defendant has complied with these 13 notice requirements. V. 14 15 CONCLUSION In view of the foregoing facts and authorities, and the matters set forth in the 16 Declaration of Michael F. Brown, Esq. filed herewith, Defendant hereby submits that good l7 cause exists for an ex parte Order shortening time for notice and hearing Defendant’s 18 Motion for Judgment on the Pleadings as to certain causes of action [negligence, 19 negligence per se, loss of consortium, and survival action]. 20 DATED: May 15, 2018 21 22 23 24 25 4 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF EX PARTE 26 APPLICATION FOR ORDER SHORTENING TIME FOR NOTICE AND HEARING ON DEFENDANT’S MOTION FOR JUDGMENT ON THE 27 PLEADINGS AS TO CERTAIN CAUSES OF ACTION [NEGLIGENCE, NEGLIGENCE PER SE, LOSS OF CONSORTIUM, AND SURVIVAL ACTION] 28 LAW OFFIC / ‘ OF MICHAEL F. BROWN / _7 //////////») By: \ 1 MIC AEL .BROWN Attorneys for endan , ARUN RAVIDRAN \quamthH NNNNNNNNNI—tu—Hr—tr—Hu—Hau OOQ¢WAUJN~OOOOQ$UIAMNHG 5 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF EX PARTE APPLICATION FOR ORDER SHORTENING TIME FOR NOTICE AND HEARING ON DEFENDANT’S MOTION FOR JUDGMENT ON THE PLEADINGS AS TO CERTAIN CAUSES OF ACTION [NEGLIGENCE, NEGLIGENCE PER SE, LOSS OF CONSORTIUM, AND SURVIVAL ACTION] PROOF OF SERVICE F' L ED I xxxxxxx v. Ravidran. et a1. MAY l 6 2013 ’ STATE OF CALIFORNIA, COUNTY OF SANTA CLARA Case No. 115CV287890 w mm; " " mm \OflflQUIfib-INH I am em loyed in the County of CONTRA COSTA, STATE OF CALIFORNIA. My business a dress is 2010 Crow Canyon Place, Suite 100, San Ramon, 94583. I am CA over the age of eighteen years and am not a party to the within action; On May 15, 2018, I served the followin%document(s) entitled MEMORANDUM OF POINTS AND AUTHORITIES IN SUPP RT OF EX PARTE APPLICATION FOR ORDER SHORTENING TIME FOR NOTICE AND HEARING ON DEFENDANT’S MOTION FOR JUDGMENT ON THE PLEADINGS AS TO CERTAIN CAUSES OF ACTION [NEGLIGENCE, NEGLIGENCE PER SE, LOSS OF CONSORTIUM, AND SURVIVAL ACTION] on ALL INTERESTED PARTIES in action by placing true copies thereof enclosed in sealed envelopes addressed as tfhil? o ows: Asit S. Panwala, Esq. Attorneys for Plaintiff LAW OFFICE OF ASIT PANWALA 4 Embarcadero Center, Suite 1400 San Francisco, CA 941 11 Telephone: (415) 766-3526 Facsmile: (415) 402-0058 asit@panwalalaw.com BY FACSIMILE: NNNNNNNNHHt—u—r—Hr—tr—v—H I declare under penalty of perjury under the laws 0f the State of California that the foregoing is true and correct. gfl¢UIAMNHG©wanIAmNH¢ Executed on May 15, 2018, at San RamongC i «Air'% \ [\wlcéAy-BW