Preview
Richard E. Eichenbaum, Esq. SBN 157065
Jeff Atterbury, Esq. SBN 229462
CAPUTO & VAN DER WALDE LLP
51 E. Campbell Avenue, Suite 120
Campbell, CA 95008
FILED
(408) 733-0100
JAN 2 9 2013
(408) 733-0123 fax
\OOO\IO\UI-J>-U)Nv—-
Mufld WHO.“
Attorneys for Plaintiff
LALANI NAILAU
W
H. A
SUPERIOR COURT OF CALIFORNIA
COUNTY OF SANTA CLARA
5:8
Case No.: 16CV299824
LALANI NAILAU
1:3
PLAINTIFF’S APPLICATION FOR
Plaintiff, ORDER SHORTENING TIME TO HEAR
141
vs.
PLAINTIFF’S MOTION TO CONTINUE
THE TRIAL DATE
SUSAN M. CLARKE and ALBERT K.
Trial Date: March 19, 2018
16 CLARKE, et a1.
Trial Time: 9:00 am.
Defendants. Location: TBD
1, Jeff Atterbury, Esq., hereby apply, on behalf of Plaintiff Lalani Nailau, in the above
B captioned matter, for an order, Pursuant to Rules 31200, et seq., and 3.1300 of the Califomia Rules
of Court, and Code of Civil Procedure section 1005, shortening time to January 29, 2018, for
HHELEH
hearing Plaintiff’s Motion to Continue the Trial Date, currently set for March 19, 2018,
I. RELIEF REQUESTED
Plaintiff Lalani Nailau hereby seeks an order shortening time, to January 29, 2018, for this
84.0,",
Court to hear Plaintiff’s Motion to Continue the Trial Date. Plaintiff has given notice of this
A
application to all parties, and good cause for bringing the application exists. (Please see Decl. of
B.
.
Jeff Atterbury). Plaintiff’s motion, and the relief requested herein, is based on this Application, the
Memorandum of Points and Authorities, the Declaration of Jeff Atterbury, and such other evidence
CAPlI'l'U & VAN DER WALDE LLP
PLAINI'IFP’S POINTS & AU'I'HORI'I'IES PAGE ]
CAMPBELL AVEVUE, SUITE 120
51 E.
CARMEL, CA 95008 (408) 733-0100
IN SUPPORT OF THE APPLICATION TO
SHORTEN TIME FOR MOTION TO CONTINUE TRIAL
1.
that may be presented in support of this motion.
2‘ II. POINTS AND AUTHORITIES
3 i
A. PLAINTIFF HAS GIVEN NOTICE OF THIS EX PARTE APPLICATION
4, Under Rules 3.1203, and 3.1204, a party moving for ex parte relief must notify all parties of
5 the appearance, state with specificity the relief requested, and the time and location where relief
6 will be requested. These requirements have been met. On Thursday, January 25, 2018, Plaintiff’s
7 counsel contacted Defense counsel through email indicating that Plaintiff would appear ex parte on
‘
8 Monday, January 29, 2018, in Santa Clara County Superior Court at 8:30 am in order to seek a
9 continuance of the trial date. (Please see attached declaration of Jeff Atterbury).
‘
B. GOOD CAUSE EXISTS FOR THE COURT TO ISSUE AN ORDER SHORTENING
TIME TO HEAR PLAINTIFF’S MOTION TO CONTINUE THE TRIAL DATE
Under Rules 3.1202, and 3.1300, an applicant must show good cause beforc an Order
5:55,;5
shortening time will be issued.
Code Civ. Proc. § 1005 prescribes the times for written notice of motions and for the
service and filing of supporting and opposing papers. Code Civ. Proc. § 1005(b), however,
provides that "[t]he court, or a judge thereof, may prescribe a shorter time" than otherwise
prescribed in §1005.
E58
California Rules of Court, rule 3.1300(b) states:
The court, on its own motion or on application for an order shortening time
supported by a declaration showing good cause, may prescribe shorter times
19
for the filing and service of papers than the time specified in Code of Civil
Procedure section 1005.
An applicant must make an affirmative factual showing in a declaration containing
competent testimony based on personal knowledge of irreparable harm, immediate danger, or any
other statutory basis for granting relief ex parte. Califomia Rules of Court, rule 3.1202(c).
As evidenced by the attached declaration of Jeff Atterbury, in light of the upcoming trial
date of March 19, 2018, good cause exists for shortening time to hear Plaintiff’ s motion to continue
the trial date. Plaintiff alleges that Defendant Susan Clarke fraudulently conveyed a piece of real
property, with in excess of $650,000 of equity contained therein, that otherwise would have been
the centerpiece of Defendant Susan Clarke’s “financial condition” as it relates to punitive damages
CAPL‘TO & VAN DER WALDH IJJ’
PLANI‘IH—"s POINTS & AUTHORITIES PAGE 2 51 E- CAWBHLA‘Wv 5““ 110
IN SUPPORT OF THE APPLICATION To “mam CA 95008 (408) 733.0100
SHORTEN TIME FOR MOTION To CONTINUE TRIAL
at her trial. Without evidence of this real property, Defendant Susan Clarke’s financial condition
reveals that she doesn’t otherwise have any assets of significance.
Defendant Susan Clarke also has not completed her discovery obligations under this
Court’s order with respect to financial documents pursuant to Cal. Civ. Code section 3295.
Furthermore, Defendant is refusing to turn over a copy of the trust that the real property was
fraudulently conveyed into. In addition, a further deposition of the Plaintiff is required to go over
newly produced financial documents, yet there is an unknown delivery date for production of these
documents from the Defendant.
Plaintiff has also been required to file a second lawsuit against Defendant Susan Clarke
(along with other co-conspirators) to void the fraudulent transfers under the Uniform Fraudulent
Transfer Act. This lawsuit is encapsulated under Docket #18CV321960,
As such, due to the above, Plaintiff is not ready to proceed to trial, and would be prejudiced
if required to do so, in that, an artificially low (and untrue) snapshot of Defendant Susan Clarke’s
financial condition would be presented to a jury, to the Plaintiff s detriment.
Good cause exists to shorten time to hear this motion on January 29, 2018, so that Plaintiff
can work to resolve the above stated issues and also seek to consolidate the complaint for damages
17. (16CV299824) with the new complaint that seeks to void the fraudulent transfers (18CV321960).
III. CONCLUSION
Based on the above, Plaintiff prays for an order from this court to shorten time to January
29, 2018, to hear Plaintiff’s motion to continue the trial date.
Dated: January 26, 2018 CAPUTO & VAN ER WALDE
J3 Jew , .,
A orncy for laintiff, Lalani Nailau
\
31133
58
DR
CAPITO & VAN “VALUE I‘LP
PLAIN'I‘IFF’S POINrs & AIJ'I'HORITIES PAGE 3 “Wt
51} CAMPBELL 5““
“mm 0‘ 9m (“sma'o’w 12°
IN SUPPORT OF THE APPLICATION TO
SIIORTEN TIM]: FOR MO'IION TO CONIINUE TRIAL
Preview
Richard E. Eichenbaum, Esq. SBN 157065 Jeff Atterbury, Esq. SBN 229462 CAPUTO & VAN DER WALDE LLP 51 E. Campbell Avenue, Suite 120 Campbell, CA 95008 FILED (408) 733-0100 JAN 2 9 2013 (408) 733-0123 fax \OOO\IO\UI-J>-U)Nv—- Mufld WHO.“ Attorneys for Plaintiff LALANI NAILAU W H. A SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA 5:8 Case No.: 16CV299824 LALANI NAILAU 1:3 PLAINTIFF’S APPLICATION FOR Plaintiff, ORDER SHORTENING TIME TO HEAR 141 vs. PLAINTIFF’S MOTION TO CONTINUE THE TRIAL DATE SUSAN M. CLARKE and ALBERT K. Trial Date: March 19, 2018 16 CLARKE, et a1. Trial Time: 9:00 am. Defendants. Location: TBD 1, Jeff Atterbury, Esq., hereby apply, on behalf of Plaintiff Lalani Nailau, in the above B captioned matter, for an order, Pursuant to Rules 31200, et seq., and 3.1300 of the Califomia Rules of Court, and Code of Civil Procedure section 1005, shortening time to January 29, 2018, for HHELEH hearing Plaintiff’s Motion to Continue the Trial Date, currently set for March 19, 2018, I. RELIEF REQUESTED Plaintiff Lalani Nailau hereby seeks an order shortening time, to January 29, 2018, for this 84.0,", Court to hear Plaintiff’s Motion to Continue the Trial Date. Plaintiff has given notice of this A application to all parties, and good cause for bringing the application exists. (Please see Decl. of B. . Jeff Atterbury). Plaintiff’s motion, and the relief requested herein, is based on this Application, the Memorandum of Points and Authorities, the Declaration of Jeff Atterbury, and such other evidence CAPlI'l'U & VAN DER WALDE LLP PLAINI'IFP’S POINTS & AU'I'HORI'I'IES PAGE ] CAMPBELL AVEVUE, SUITE 120 51 E. CARMEL, CA 95008 (408) 733-0100 IN SUPPORT OF THE APPLICATION TO SHORTEN TIME FOR MOTION TO CONTINUE TRIAL 1. that may be presented in support of this motion. 2‘ II. POINTS AND AUTHORITIES 3 i A. PLAINTIFF HAS GIVEN NOTICE OF THIS EX PARTE APPLICATION 4, Under Rules 3.1203, and 3.1204, a party moving for ex parte relief must notify all parties of 5 the appearance, state with specificity the relief requested, and the time and location where relief 6 will be requested. These requirements have been met. On Thursday, January 25, 2018, Plaintiff’s 7 counsel contacted Defense counsel through email indicating that Plaintiff would appear ex parte on ‘ 8 Monday, January 29, 2018, in Santa Clara County Superior Court at 8:30 am in order to seek a 9 continuance of the trial date. (Please see attached declaration of Jeff Atterbury). ‘ B. GOOD CAUSE EXISTS FOR THE COURT TO ISSUE AN ORDER SHORTENING TIME TO HEAR PLAINTIFF’S MOTION TO CONTINUE THE TRIAL DATE Under Rules 3.1202, and 3.1300, an applicant must show good cause beforc an Order 5:55,;5 shortening time will be issued. Code Civ. Proc. § 1005 prescribes the times for written notice of motions and for the service and filing of supporting and opposing papers. Code Civ. Proc. § 1005(b), however, provides that "[t]he court, or a judge thereof, may prescribe a shorter time" than otherwise prescribed in §1005. E58 California Rules of Court, rule 3.1300(b) states: The court, on its own motion or on application for an order shortening time supported by a declaration showing good cause, may prescribe shorter times 19 for the filing and service of papers than the time specified in Code of Civil Procedure section 1005. An applicant must make an affirmative factual showing in a declaration containing competent testimony based on personal knowledge of irreparable harm, immediate danger, or any other statutory basis for granting relief ex parte. Califomia Rules of Court, rule 3.1202(c). As evidenced by the attached declaration of Jeff Atterbury, in light of the upcoming trial date of March 19, 2018, good cause exists for shortening time to hear Plaintiff’ s motion to continue the trial date. Plaintiff alleges that Defendant Susan Clarke fraudulently conveyed a piece of real property, with in excess of $650,000 of equity contained therein, that otherwise would have been the centerpiece of Defendant Susan Clarke’s “financial condition” as it relates to punitive damages CAPL‘TO & VAN DER WALDH IJJ’ PLANI‘IH—"s POINTS & AUTHORITIES PAGE 2 51 E- CAWBHLA‘Wv 5““ 110 IN SUPPORT OF THE APPLICATION To “mam CA 95008 (408) 733.0100 SHORTEN TIME FOR MOTION To CONTINUE TRIAL at her trial. Without evidence of this real property, Defendant Susan Clarke’s financial condition reveals that she doesn’t otherwise have any assets of significance. Defendant Susan Clarke also has not completed her discovery obligations under this Court’s order with respect to financial documents pursuant to Cal. Civ. Code section 3295. Furthermore, Defendant is refusing to turn over a copy of the trust that the real property was fraudulently conveyed into. In addition, a further deposition of the Plaintiff is required to go over newly produced financial documents, yet there is an unknown delivery date for production of these documents from the Defendant. Plaintiff has also been required to file a second lawsuit against Defendant Susan Clarke (along with other co-conspirators) to void the fraudulent transfers under the Uniform Fraudulent Transfer Act. This lawsuit is encapsulated under Docket #18CV321960, As such, due to the above, Plaintiff is not ready to proceed to trial, and would be prejudiced if required to do so, in that, an artificially low (and untrue) snapshot of Defendant Susan Clarke’s financial condition would be presented to a jury, to the Plaintiff s detriment. Good cause exists to shorten time to hear this motion on January 29, 2018, so that Plaintiff can work to resolve the above stated issues and also seek to consolidate the complaint for damages 17. (16CV299824) with the new complaint that seeks to void the fraudulent transfers (18CV321960). III. CONCLUSION Based on the above, Plaintiff prays for an order from this court to shorten time to January 29, 2018, to hear Plaintiff’s motion to continue the trial date. Dated: January 26, 2018 CAPUTO & VAN ER WALDE J3 Jew , ., A orncy for laintiff, Lalani Nailau \ 31133 58 DR CAPITO & VAN “VALUE I‘LP PLAIN'I‘IFF’S POINrs & AIJ'I'HORITIES PAGE 3 “Wt 51} CAMPBELL 5““ “mm 0‘ 9m (“sma'o’w 12° IN SUPPORT OF THE APPLICATION TO SIIORTEN TIM]: FOR MO'IION TO CONIINUE TRIAL