Preview
MICHAEL S. DANKO, ESQ. SBN 111359
mdanko@dankolaw.com
SHAWN R. MILLER, ESQ. SBN 238447
F I E E D ,
SAN MATEO COUNTY
smi11er@dankolaw.com (
DANKO MEREDITH JAN 0 3 2020
333 Twin Dolphin Drive, Suite 145
Redwood Shores, CA 94065 Clerko
'
urt
Telephone: (650) 453-3600
3y
Facsimile: (650) 394—8672
dew CLERK
OONO\Ul-b
Attorneys for Plaintiffs
BRYAN TRUJILLO and CINDY TRUJILLO
SUPERIOR COURT OF THE STATE OF CALIFORNIA
\O IN AND FOR THE COUNTY OF SAN MATEO 18 — CIV— 01901
MPAO
inOpp:
and Authorities
Memorandumof Points
10 UNLIMITED CIVIL JURISDICTION 2189543
11 BRYAN TRUJILLO and CINDY TRUJILLO, Case No. 18CIV01901
\ \l\l\\|\\|\|\|\\|\\\W #
12 Plaintiffs, PLAINTIFFS’ MEMORANDUM OF POINTS
AND AUTHORITIES IN OPPOSITION TO
13 V. DEFENDANTS STEPHEN MAGEE’S AND
AERO FLYING CLUB, INC.’S EX PARTE
14 STEPHEN MAGEE, SAC AERO FLYING h APPLICATION FOR AN ORDER
CLUB, INC., AND DOES 1 -
50, ADVANCING HEARING DATES.
15
Defendants
16 Date: .
January 3, 2020
Time: 2:00 p.m.
17 Dept: Law and Motion
18 Complaint filed: April 17, 201 8
Trial Date: February 10, 2020
19
20
21 I. INTRODUCTION AND FACTUAL SUMMARY.
22 Defendants continue their efforts to bring multiple, late motions before the court in violation 0f
23 the Code of Civil Procedure which establishes deadlines for hearing motions.
24 ‘
On October 25, 2019, Defendants Magee and Sac Aero Flying Club, Inc. served four, late
25 motions to compel discovery. (Notices 0f Motions, collectively attached to the Declaration of Shawn
26 R. Miller (hereinafter “Miller Decl.”) as Exhibit A.) These motions were served by mail on October 25,
27 2019, days after the October 21, 2019 discovery motibn hearing cut—off. In short, they were not even
28 -1-
PLAINTIFFS’ MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION T0
DEFENDANTS STEPHEN MAGEE’S AND AERO FLYING CLUB, INC.’S EX PARTE
APPLICATION FOR AN ORDER ADVANCING HEARING DATES.
served until after the deadline for having motions heard by the court had already passed. The hearing date
set for these motions was December 9, 2019, approximately one month after the November 4, 2019 trial
date for this matter. (Miller Decl. at {[3.)
Plaintiffs served oppositions to all four 0f defendants’ late discovery motions by overnight
delivery on November 22, 201 9. (Miller Decl. at fl4; Proof of Services of plaintiffs’ oppositions,
collectively attached as Exhibit B to Miller Decl.) Plaintiffs also filed their oppositions with the court.
(Miller Decl. at 115.)Three days later, on November 25, 2019, counsel for defendant sent an email
\OOOVON
advising the four late discovery motions were off calendar. (Miller Decl. at 116; November 25, 2019
Email from Moon, attached as Exhibit C t0 Miller Decl.) Counsel indicated the motions were off
10 calendar “due to the court’s lack of a reservation system to secure a hearing date” and the date noticed
11 being unavailable. (Ibid.) Upon checking the court—maintained register of actions, it was discovered
12 defendant never filed the four late discovery motions. (Miller Decl. at 117.)Instead of promptly
13 informing plaintiffs of their failure to file their four late motions, defendants waited until after
14 plaintiffs’ oppositions were served.
15 Now, defendant served and filed three late motions (one of which encompasses the prior four
16 late, served but never filed, discovery motions) 0n or about December 20, 2019 with hearing dates on
17 February 26, 2020. This hearing date is two weeks after the February 10, 2020 trial date set by the
18 court after the parties appeared for the November 4, 2019 trial call.(Miller Decl. at {[8.)
19 On December 27, 2019, defendants wrote t0 request plaintiffs stipulate t0 advancing the
20 February 26, 2020 hearing date. (Miller Decl. at 1P; December 27, 2019 Email from Moon, attached as
21 Exhibit D to Miller Decl.) Defendant wrote, “[w]e are unable to schedule a hearing before the
22 commencement of trial since the court’s calendaring system did not have any available dates.” (Ibid)
23 Plaintiffs did not stipulate to having defendants’ late motions heard on an expedited basis. Ina
24 December 30, 2019 email, defendants confirmed they had in fact filed, not merely served the current
25 round of motions. (Miller Decl. at‘fllO; December 30, 2019 Email from Moon, attached as Exhibit E to
26 Miller Decl.)
27 Defendants then notified plaintiffs on December 3 1,2019, that they would appear ex parte on
28 -2-
PLAINTIFFS’ MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO
DEFENDANTS STEPHEN MAGEE’S AND AERO FLYING CLUB, INC.’S EX PARTE
APPLICATION FOR AN ORDER ADVANCING HEARING DATES.
Friday January 3, 2020 seeking to advance the hearing date. (Miller Decl. at 1H 1; December 31, 2019
Email fiom Moon, attached as Exhibit F to Miller Decl.) Rather than timely filing motions or seeking
leave from the court to file their motions late, defendants noticed the hearings for their series of
motions after the start of trial and now seek to advance the hearing date, skirting the Code of Civil
Procedure’s deadlines.
NONUI-B
II. LEGAL ARGUMENT.
CO A. Defendants Failed to Serve Its Ex parte Papers as Required.
California Rule of Court, Rule 3. 1206 provides: “Parties appearing at ,the ex parte hearing must
1o serve the ex parte application or any written opposition on all other appearing parties at the first
11 reasonable opportunity.”
12 Defefidants have not properly served their ex parte application. The Rule requires defendants to
13 have served their papers “at the first reasonable opportunity.” (Rule of Court, Rule 3. 1206.) Instead,
14 defendants’ counsel traveled from his office in Los Angeles County presumably his ex parte
15 application with him. Rather than serving the papers on plaintiffs by email or fax at the first reasonable
16 opportunity, defendant provided a copy l
g SM (W vk’c ( btgw Z (BM before the
17 hearing. Defendants’ ex parte application should be denied a hearing on this basis alone.
18
1‘9
B. No Harm, Danger, 0r Even Good Cause‘Exists for Advancing the Hearing Date for
20 Motions Filed Months After the Initial Trial Date.
21 California Rule 0f Court, Rule 3.1202 states, “An applicant must make an affirmative factual
22 showing in a declaration containing competent testimony based on personal knowledge of irreparable
23 harm, immediate danger, or any other statutory basis for granting relief ex parte.” There can be no
24 showing of irreparable harm or immediate danger supporting an ex parte application here as it is
25 defendants’ own lack of diligence, not the court’s calendaring system, which has resulted in hearing
26 dates after February 10, 2020, the second date set for trial.
27
28 -3-
PLAINTIFFS’ MEMORANDUM 0F POINTS AND AUTHORITIES IN OPPOSITION TO
DEFENDANTS STEPHEN MAGEE’S AND AERO FLYING CLUB, lNC.’S EX PARTE
APPLICATION FOR AN ORDER ADVANCING HEARING DATES.
1. Motion t0 Amend.
“Generally, leave t0 amend must be liberally granted (Nestle v. City 0f
Santa Monica (1972) 6 Cal.3d 920, 939), provided there isno statute of
limitations concern, nor any prejudice to the opposing party, such as
delay in trial, loss 0f critical evidence, or added costs of preparation.
(Hirsa v.Superior Court (1981) 118 Cal.App.3d 486, 490.)”
(Solit v. Taokai Bank, Ltd. (1999) 68 Ca1.App.4th 1435, 1448.)
QON
Despite the policy of great liberality in granting leave to amend, a trial court may deny an
otherwise broper amendment ifthere was an unwarranted delay in bringing the motion to amend.
(Atkinson v. Elk Corp. (2003) 109 Cal.App.4th 739, 761.) To deny leave [permission] to amend based
10 on an unreasonable delay in moving for leave to amend, however, the opposing party must have been
11 misled or prejudiced by the delay (Kittredge Sports C0. v. Superior Court (1999) 213 Ca1.App.3e
12 1 045 ,
1048 .)
13 Here it appears defendants have waited until the eve of the continued trial to bring a motion to
14 amend their Answer that could have been brought much earlier. To the extent the court believes
15 defendants’ motion should be decided on the merits, itshould be left for the trialjudge to decide and
16 the ex parte request to advance the hearing date denied.
17
18 2. Motion to Complete Discovery.
19 a. Defendants’ Late Motion is Untimely.
20 Defendants’ motion “to complete discovery” isuntimely in multiple regards. First, a motion to
21 compel further discovery responses must be brought within 45 days of the responses being served.
22 (See, Civ. Proc., §203 10, subd.(c).) Plaintiff Bryan Trujillo’s responses
1 .3 were served upon
23 defendants by mail on September 10, 2019, approximately 100 days before the current iteration of
24 defendants’ late discovery motion. Defendants’ first attempt to meet and confer 0n the alleged
25 insufficient responses occurred on October 22, 2019, one day after the discovery hearing cut—off and
26 just over a week before the November 4, 2019 trial date. (Miller Decl. at 1112.) This first meet and
27 confer letter on this issue occurred three days before defendants served their prior round 0f untimely
28 -4-
PLAINTIFFS’ MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO
DEFENDANTS STEPHEN MAGEE’S AND AERO FLYING CLUB, INC.’S EX PARTE
APPLICATION FOR AN ORDER ADVANCING HEARING DATES.
discovery motions.
Second, the deadline for bringing discovery motions has long passed. The Code of Civil
Procedure provides, “any party shall be entitled as a matter of right to complete discovery proceedings
on 0r before the 30th day, and to have motions concerning discovery heard 0n 0r before the 15m day,
before the date initially setfor the trial 0f the action.” (Civ. Proc., §2024.020, subd. (a), emphasis
added.) Thus, the deadline for having a discovery motion heard was October 21, 2019.1 This deadline
NON
was not extended by the fact the trial was continued to February 10, 2010 as a result of a lack ofjudges
to hear the matter when the parties appeared for trial call on November 4, 2019. (See, Civ. Proc.,
§2024.020, subd. (a); see also, Beverly Hospital v. Superior Court (1993) 19 Ca1.App.4th 1289,
10 Fairmont Ins. C0. v. Superior Court (2000) 22 Ca1.4th 245, Pelton-Shepherd Industries, Inc. v. Delta
11 Packaging Products, Inc. (2008) 165 Ca1.App.4th 1568.)
12 Rather than meet Code 0f Civil Procedure’s discovery motion deadlines, defendants instead
13 served this version of their late discovery motions on plaintiffs by U.S. mail on December 20, 2019,
14 two months after the deadline for having discovery motions heard had passed.
15 b. Lacks Basis for Shortening Time.
16 Given defendants’ motions regarding discovery are untimely, there can be no risk of irreparable
17 harm or immediate danger sufficient to warrant an ex parte application. Defendant argues plaintiffs
18 have time to provide discovery responses as sought. This is not true as trial was set for November 4,
19 2019 and the continued trial is set forFebruary 10, 2020.
20
21 3. Motion to Withdraw Admission to Request for Admission.
22 The potential irreparable harm here would be to grant the defendants’ request to advance the
23 hearing date on their motion to Withdraw a prior admission made. This case involves an airplane
24 crashing into the plaintiffs’ home. Defendants now seek to withdraw their prior admission that plaintiff
25 homeowners were not negligent. It appears defendants wish to argue that a condition of the plaintiffs’
26 1
As the discovery motion cut—off fell on Sunday, October 20, 2019, contrary to Code’s effort to ensure the motion cut—off
occurred “on or before” 15 days before trial, the deadline rolls forward to Monday, October 21, 20 19 per Code.of Civil
27 Procedure §2016.060.
28 -5-
PLAINTIFFS’ MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO
DEFENDANTS STEPHEN MAGEE’S AND AERO FLYING CLUB, INC.’S EX PARTE
APPLICATION FOR AN ORDER ADVANCING HEARING DATES.
property, a French drain, possibly permitted aviation fuel spilled upon the ground by the crashed
airplane to spread and contaminate the property more thoroughly.
The deadline for the court to hear this motion was October 21, 2019. Rather than seek
#w
permission from the court to file this late motion, defendants noticed the motion for February 26, 2020,
two weeks after the continued trial date and months after the deadline, and now seek to advance the
hearing. No discovery has been conducted concerning the defendants newly arisen allegation that the
plaintiffs’ property was in some sort of eggshell state and, as a result, plaintiffs are to some degree
\OOOQON
negligent for the plane that crashed on their home. The court should not advance the hearing on this
motion.
10
11 IV. CONCLUSION.
12 Plaintiffs respectfully request the court deny defendants’ ex parte application as (1) not
13 properly served and (2) lacking the requisite irreparable harm, immediate danger, or good cause. If
14 necessary, defendants’ late motions can be left for the trial judge to resolve.
15
DATED: January 5 ,
2020 DANKO MEREDITH
16
17
18
19
By: mfiw
LMTCHAEDST'BKNKO
SHAWN R. MILLER
Attorneys for Plaintiff
20
21
22
23
24
25
26
27
28 -6-
PLAINTIFFS’ MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO
DEFENDANTS STEPHEN MAGEE’S AND AERO FLYING CLUB, INC.’S EX PARTE
APPLICATION FOR AN ORDER ADVANCING HEARING DATES.
Preview
MICHAEL S. DANKO, ESQ. SBN 111359 mdanko@dankolaw.com SHAWN R. MILLER, ESQ. SBN 238447 F I E E D , SAN MATEO COUNTY smi11er@dankolaw.com ( DANKO MEREDITH JAN 0 3 2020 333 Twin Dolphin Drive, Suite 145 Redwood Shores, CA 94065 Clerko ' urt Telephone: (650) 453-3600 3y Facsimile: (650) 394—8672 dew CLERK OONO\Ul-b Attorneys for Plaintiffs BRYAN TRUJILLO and CINDY TRUJILLO SUPERIOR COURT OF THE STATE OF CALIFORNIA \O IN AND FOR THE COUNTY OF SAN MATEO 18 — CIV— 01901 MPAO inOpp: and Authorities Memorandumof Points 10 UNLIMITED CIVIL JURISDICTION 2189543 11 BRYAN TRUJILLO and CINDY TRUJILLO, Case No. 18CIV01901 \ \l\l\\|\\|\|\|\\|\\\W # 12 Plaintiffs, PLAINTIFFS’ MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO 13 V. DEFENDANTS STEPHEN MAGEE’S AND AERO FLYING CLUB, INC.’S EX PARTE 14 STEPHEN MAGEE, SAC AERO FLYING h APPLICATION FOR AN ORDER CLUB, INC., AND DOES 1 - 50, ADVANCING HEARING DATES. 15 Defendants 16 Date: . January 3, 2020 Time: 2:00 p.m. 17 Dept: Law and Motion 18 Complaint filed: April 17, 201 8 Trial Date: February 10, 2020 19 20 21 I. INTRODUCTION AND FACTUAL SUMMARY. 22 Defendants continue their efforts to bring multiple, late motions before the court in violation 0f 23 the Code of Civil Procedure which establishes deadlines for hearing motions. 24 ‘ On October 25, 2019, Defendants Magee and Sac Aero Flying Club, Inc. served four, late 25 motions to compel discovery. (Notices 0f Motions, collectively attached to the Declaration of Shawn 26 R. Miller (hereinafter “Miller Decl.”) as Exhibit A.) These motions were served by mail on October 25, 27 2019, days after the October 21, 2019 discovery motibn hearing cut—off. In short, they were not even 28 -1- PLAINTIFFS’ MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION T0 DEFENDANTS STEPHEN MAGEE’S AND AERO FLYING CLUB, INC.’S EX PARTE APPLICATION FOR AN ORDER ADVANCING HEARING DATES. served until after the deadline for having motions heard by the court had already passed. The hearing date set for these motions was December 9, 2019, approximately one month after the November 4, 2019 trial date for this matter. (Miller Decl. at {[3.) Plaintiffs served oppositions to all four 0f defendants’ late discovery motions by overnight delivery on November 22, 201 9. (Miller Decl. at fl4; Proof of Services of plaintiffs’ oppositions, collectively attached as Exhibit B to Miller Decl.) Plaintiffs also filed their oppositions with the court. (Miller Decl. at 115.)Three days later, on November 25, 2019, counsel for defendant sent an email \OOOVON advising the four late discovery motions were off calendar. (Miller Decl. at 116; November 25, 2019 Email from Moon, attached as Exhibit C t0 Miller Decl.) Counsel indicated the motions were off 10 calendar “due to the court’s lack of a reservation system to secure a hearing date” and the date noticed 11 being unavailable. (Ibid.) Upon checking the court—maintained register of actions, it was discovered 12 defendant never filed the four late discovery motions. (Miller Decl. at 117.)Instead of promptly 13 informing plaintiffs of their failure to file their four late motions, defendants waited until after 14 plaintiffs’ oppositions were served. 15 Now, defendant served and filed three late motions (one of which encompasses the prior four 16 late, served but never filed, discovery motions) 0n or about December 20, 2019 with hearing dates on 17 February 26, 2020. This hearing date is two weeks after the February 10, 2020 trial date set by the 18 court after the parties appeared for the November 4, 2019 trial call.(Miller Decl. at {[8.) 19 On December 27, 2019, defendants wrote t0 request plaintiffs stipulate t0 advancing the 20 February 26, 2020 hearing date. (Miller Decl. at 1P; December 27, 2019 Email from Moon, attached as 21 Exhibit D to Miller Decl.) Defendant wrote, “[w]e are unable to schedule a hearing before the 22 commencement of trial since the court’s calendaring system did not have any available dates.” (Ibid) 23 Plaintiffs did not stipulate to having defendants’ late motions heard on an expedited basis. Ina 24 December 30, 2019 email, defendants confirmed they had in fact filed, not merely served the current 25 round of motions. (Miller Decl. at‘fllO; December 30, 2019 Email from Moon, attached as Exhibit E to 26 Miller Decl.) 27 Defendants then notified plaintiffs on December 3 1,2019, that they would appear ex parte on 28 -2- PLAINTIFFS’ MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANTS STEPHEN MAGEE’S AND AERO FLYING CLUB, INC.’S EX PARTE APPLICATION FOR AN ORDER ADVANCING HEARING DATES. Friday January 3, 2020 seeking to advance the hearing date. (Miller Decl. at 1H 1; December 31, 2019 Email fiom Moon, attached as Exhibit F to Miller Decl.) Rather than timely filing motions or seeking leave from the court to file their motions late, defendants noticed the hearings for their series of motions after the start of trial and now seek to advance the hearing date, skirting the Code of Civil Procedure’s deadlines. NONUI-B II. LEGAL ARGUMENT. CO A. Defendants Failed to Serve Its Ex parte Papers as Required. California Rule of Court, Rule 3. 1206 provides: “Parties appearing at ,the ex parte hearing must 1o serve the ex parte application or any written opposition on all other appearing parties at the first 11 reasonable opportunity.” 12 Defefidants have not properly served their ex parte application. The Rule requires defendants to 13 have served their papers “at the first reasonable opportunity.” (Rule of Court, Rule 3. 1206.) Instead, 14 defendants’ counsel traveled from his office in Los Angeles County presumably his ex parte 15 application with him. Rather than serving the papers on plaintiffs by email or fax at the first reasonable 16 opportunity, defendant provided a copy l g SM (W vk’c ( btgw Z (BM before the 17 hearing. Defendants’ ex parte application should be denied a hearing on this basis alone. 18 1‘9 B. No Harm, Danger, 0r Even Good Cause‘Exists for Advancing the Hearing Date for 20 Motions Filed Months After the Initial Trial Date. 21 California Rule 0f Court, Rule 3.1202 states, “An applicant must make an affirmative factual 22 showing in a declaration containing competent testimony based on personal knowledge of irreparable 23 harm, immediate danger, or any other statutory basis for granting relief ex parte.” There can be no 24 showing of irreparable harm or immediate danger supporting an ex parte application here as it is 25 defendants’ own lack of diligence, not the court’s calendaring system, which has resulted in hearing 26 dates after February 10, 2020, the second date set for trial. 27 28 -3- PLAINTIFFS’ MEMORANDUM 0F POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANTS STEPHEN MAGEE’S AND AERO FLYING CLUB, lNC.’S EX PARTE APPLICATION FOR AN ORDER ADVANCING HEARING DATES. 1. Motion t0 Amend. “Generally, leave t0 amend must be liberally granted (Nestle v. City 0f Santa Monica (1972) 6 Cal.3d 920, 939), provided there isno statute of limitations concern, nor any prejudice to the opposing party, such as delay in trial, loss 0f critical evidence, or added costs of preparation. (Hirsa v.Superior Court (1981) 118 Cal.App.3d 486, 490.)” (Solit v. Taokai Bank, Ltd. (1999) 68 Ca1.App.4th 1435, 1448.) QON Despite the policy of great liberality in granting leave to amend, a trial court may deny an otherwise broper amendment ifthere was an unwarranted delay in bringing the motion to amend. (Atkinson v. Elk Corp. (2003) 109 Cal.App.4th 739, 761.) To deny leave [permission] to amend based 10 on an unreasonable delay in moving for leave to amend, however, the opposing party must have been 11 misled or prejudiced by the delay (Kittredge Sports C0. v. Superior Court (1999) 213 Ca1.App.3e 12 1 045 , 1048 .) 13 Here it appears defendants have waited until the eve of the continued trial to bring a motion to 14 amend their Answer that could have been brought much earlier. To the extent the court believes 15 defendants’ motion should be decided on the merits, itshould be left for the trialjudge to decide and 16 the ex parte request to advance the hearing date denied. 17 18 2. Motion to Complete Discovery. 19 a. Defendants’ Late Motion is Untimely. 20 Defendants’ motion “to complete discovery” isuntimely in multiple regards. First, a motion to 21 compel further discovery responses must be brought within 45 days of the responses being served. 22 (See, Civ. Proc., §203 10, subd.(c).) Plaintiff Bryan Trujillo’s responses 1 .3 were served upon 23 defendants by mail on September 10, 2019, approximately 100 days before the current iteration of 24 defendants’ late discovery motion. Defendants’ first attempt to meet and confer 0n the alleged 25 insufficient responses occurred on October 22, 2019, one day after the discovery hearing cut—off and 26 just over a week before the November 4, 2019 trial date. (Miller Decl. at 1112.) This first meet and 27 confer letter on this issue occurred three days before defendants served their prior round 0f untimely 28 -4- PLAINTIFFS’ MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANTS STEPHEN MAGEE’S AND AERO FLYING CLUB, INC.’S EX PARTE APPLICATION FOR AN ORDER ADVANCING HEARING DATES. discovery motions. Second, the deadline for bringing discovery motions has long passed. The Code of Civil Procedure provides, “any party shall be entitled as a matter of right to complete discovery proceedings on 0r before the 30th day, and to have motions concerning discovery heard 0n 0r before the 15m day, before the date initially setfor the trial 0f the action.” (Civ. Proc., §2024.020, subd. (a), emphasis added.) Thus, the deadline for having a discovery motion heard was October 21, 2019.1 This deadline NON was not extended by the fact the trial was continued to February 10, 2010 as a result of a lack ofjudges to hear the matter when the parties appeared for trial call on November 4, 2019. (See, Civ. Proc., §2024.020, subd. (a); see also, Beverly Hospital v. Superior Court (1993) 19 Ca1.App.4th 1289, 10 Fairmont Ins. C0. v. Superior Court (2000) 22 Ca1.4th 245, Pelton-Shepherd Industries, Inc. v. Delta 11 Packaging Products, Inc. (2008) 165 Ca1.App.4th 1568.) 12 Rather than meet Code 0f Civil Procedure’s discovery motion deadlines, defendants instead 13 served this version of their late discovery motions on plaintiffs by U.S. mail on December 20, 2019, 14 two months after the deadline for having discovery motions heard had passed. 15 b. Lacks Basis for Shortening Time. 16 Given defendants’ motions regarding discovery are untimely, there can be no risk of irreparable 17 harm or immediate danger sufficient to warrant an ex parte application. Defendant argues plaintiffs 18 have time to provide discovery responses as sought. This is not true as trial was set for November 4, 19 2019 and the continued trial is set forFebruary 10, 2020. 20 21 3. Motion to Withdraw Admission to Request for Admission. 22 The potential irreparable harm here would be to grant the defendants’ request to advance the 23 hearing date on their motion to Withdraw a prior admission made. This case involves an airplane 24 crashing into the plaintiffs’ home. Defendants now seek to withdraw their prior admission that plaintiff 25 homeowners were not negligent. It appears defendants wish to argue that a condition of the plaintiffs’ 26 1 As the discovery motion cut—off fell on Sunday, October 20, 2019, contrary to Code’s effort to ensure the motion cut—off occurred “on or before” 15 days before trial, the deadline rolls forward to Monday, October 21, 20 19 per Code.of Civil 27 Procedure §2016.060. 28 -5- PLAINTIFFS’ MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANTS STEPHEN MAGEE’S AND AERO FLYING CLUB, INC.’S EX PARTE APPLICATION FOR AN ORDER ADVANCING HEARING DATES. property, a French drain, possibly permitted aviation fuel spilled upon the ground by the crashed airplane to spread and contaminate the property more thoroughly. The deadline for the court to hear this motion was October 21, 2019. Rather than seek #w permission from the court to file this late motion, defendants noticed the motion for February 26, 2020, two weeks after the continued trial date and months after the deadline, and now seek to advance the hearing. No discovery has been conducted concerning the defendants newly arisen allegation that the plaintiffs’ property was in some sort of eggshell state and, as a result, plaintiffs are to some degree \OOOQON negligent for the plane that crashed on their home. The court should not advance the hearing on this motion. 10 11 IV. CONCLUSION. 12 Plaintiffs respectfully request the court deny defendants’ ex parte application as (1) not 13 properly served and (2) lacking the requisite irreparable harm, immediate danger, or good cause. If 14 necessary, defendants’ late motions can be left for the trial judge to resolve. 15 DATED: January 5 , 2020 DANKO MEREDITH 16 17 18 19 By: mfiw LMTCHAEDST'BKNKO SHAWN R. MILLER Attorneys for Plaintiff 20 21 22 23 24 25 26 27 28 -6- PLAINTIFFS’ MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANTS STEPHEN MAGEE’S AND AERO FLYING CLUB, INC.’S EX PARTE APPLICATION FOR AN ORDER ADVANCING HEARING DATES.