Preview
Gary M. Kaplan (State Bar No. 155530)
ELECTRONICALLY FILED
Farella Braun + Martel LLP Superior Court of California,
County of Placer
235 Montgomel
a
Street, 17th Floor
San Francisco, ‘A 94104
Telephone: (415) 954-4400
05/12/2020
jy: Marina Olivarez Fuentes, Deputy Clert
Facsimile: (415) 954-4480
gkaplan@ fbm.com
Attorneys for Defendant
VERDOM REALTY MANAGEMENT LLC
IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF PLACER
10
11 TAHOE VISTA NOTE ACQUISITION LLC, Case No. SCV0039936
12 Plaintiff, MEMORANDUM OF POINTS AND
AUTHORITIES IN SUPPORT OF
13 vs. DEFENDANT VERDOM REALTY
MANAGEMENT LLC’S MOTION TO
14 VERDOM REALTY MANAGEMENT LLC; EXTEND DISCOVERY
and DOES 1-10, inclusive, COMPLETION DEADLINE
15
Defendants.
16
17
VERDOM REALTY MANAGEMENT LLC, Hearin
18 Date: June 4, 2020
Cross-Complainant, Time: 8:30 am.
19 Place: Dept. 42
10820 Justice Center Dr.
20 Vv
Roseville, California 95678
21 TAHOE VISTA NOTE ACQUISITION LLC,
MARK S. FAWER, AN INDIVIDUAL, [NO TRIAL DATE SET]
22 TIMOTHY WILKENS, individually and as
Trustee of THE WILKENS 2000 TRUST and
23
Trustee of THE WILKENS 2003 TRUST, ROES
24 1-10,
25 Cross- Defendants.
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27
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Fanlla Braun + Mattel LLP
235 Montgomery Str, 17th Floor
San Francisco, CA” 94104
(415) 954-4400 MPA ISO DEFEND. VERDOM REALTY’S MOT. EXTEND DISCOVERY DEADLINE
I INTRODUCTION AND SUMMARY OF ARGUMENT
Defendant V erdom Realty Management LLC (“Verdom”) submits its Memorandum of
Points and Authorities (“MPA”) in support of its motion (“Motion”) pursuant to California Code
of Civil Procedure (“CCP”) Section 2024.050 for an order extending the discovery cutoff in this
case (including any hearing on discovery motions) until June 19, 2020. Such relief is sought in
light of: (i) the Court’s continuance of the initially scheduled trial from January 21, 2020 to May
11, 2020 due to the parties’ Court-approved settlement of January 3, 2020; (ii) the failure and
refusal of Plaintiff Tahoe Vista Note Acquisition (“TNA”) to perform its obligations under such
settlement by the April 2, 2020 deadline (or since that time); (iii) the Court’s continuance of the
10 hearing on Verdom’s motion to compel further discovery from TNA from March 26, 2020 to
11 June 4, 2020 due to the Coronavirus pandemic; and (iv) the Court’s further continuance of the
12 trial in this matter from May 11, 2020 until July 6, 2020 due to the Coronavirus pandemic.
13 Il. RELEVANT BACKGROUND
14 1 At ajudicial settlement conference on January 3, 2020, the parties signed a
15 stipulation globally settling this case (the “Settlement”, which the Court approved by its Order
16 entered that same day (the “Settlement Order”). See accompanying Declaration of Gary M.
17 Kaplan in support of the Motion (“Kaplan Decl.”) 43 & Ex. 1. The Settlement (11) required
18 TNA to pay cash of $9,500,000 (the “Settlement Amount”) to Verdom by April 2, 2020 (the
19 “Settlement Deadline”). Kaplan Decl. {4 & Ex. 1.
20 2 Based on the Settlement, pursuant to the Settlement Order, the Court continued
21 the trial scheduled in this matter from January 21, 2020, with the expectation that such trial
22 would be unnecessary if the Settlement was consummated by the April 2, 2020 Settlement
23 Deadline. See Kaplan Decl. {5 and Exs. 1 & 2.
24 3 TNA agreed to postpone pending discovery proceedings as a result of the
25 Settlement and the Court’s postponement of the trial. Kaplan Decl. 46 & Ex. 3.
26 4 The Settlement ({4) provides that if TNA fails to timely pay the Settlement
27 Amount by the Settlement Deadline, then the parties would return to the status quo ante,
28 including proceeding to trial in this action. Kaplan Decl. 17 & Ex. 1.
Fanlla Braun + Mattel LLP -1-
235 Montgomery Str, 17th Floor
San Francisco, CA” 94104
(415) 954-4400 MPA ISO DEFEND. VERDOM REALTY’S MOT. EXTEND DISCOVERY DEADLINE
31774\12831219.1
5. TNA failed and refused to perform its obligations under the Settlement, including
failing to pay the Settlement A mount (or any portion thereof) by the Settlement Deadline (or at
any time since then). Kaplan Decl. 8! On April 6, 2020, Verdom memorialized TNA’s failure
to perform the Settlement, and provided notice that the parties were returned to the status quo
ante including continued litigation of this case. Kaplan Decl. 10 & Ex. 3.
6 On March 25, 2020, the Court ordered the hearing on Verdom’s then pending
motion to compel further discovery from TNA (the “Discovery Motion”) continued from March
26, 2020 until June 4, 2020 as a result of the reduction in Court operations due to the
Coronavirus pandemic. Kaplan Decl. § 11 & Ex. 4.
10 7 On April 14, 2020, the Court ordered the trial in this action continued from May
11 11, 2020 until July 6, 2020 (and continued the Civil Trial Conference from May 1, 2020 to June
12 26, 2020) as a result of the reduction in Court operations due to the Coronavirus pandemic.
13 Kaplan Decl. § 12 & Ex. 5.
14 8 Verdom has served document production requests to each of cross-defendants
15 Timothy Wilkens and Mark Fawer, as to which responses are due by June 8, 2020. Kaplan Decl.
16 4/13. In view of expected relaxation of the “shelter in place” orders issued by local
17 governmental authorities beginning in early June 2020, V erdom expects to take the depositions
18 of each of Messrs. Wilkens and Fawer during the period June 8-12 or June 15-19, 2020. Kaplan
19 Decl. 414.
20 9 If the Discovery Motion is granted at (or shortly after) the hearing scheduled for
21 June 4, 2020, Verdom expects that it will require two weeks to complete such discovery
22 (including the further deposition of TNA), i.e., by June 19, 2020. Kaplan Decl. 4 15.
23 10. In view of the foregoing, Verdom has asked TNA to agree to extend the discovery
24 deadline in accordance with CCP Sections 2024.050 and 2016.040, but TNA has been unwilling
25 to do so Kaplan Decl. 416 & Ex. 3.
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27 TNA also failed and refused to enter into a comprehensive agreement with respect to the
Settlement (Kaplan Decl. {9 & Ex. 3), although the Settlement Order states (at 96, 9) that the
28 signed Settlement is enforceable, and that the Court retains jurisdiction to enforce it.
Fanlla Braun + Mattel LLP -2-
235 Montgomery Str, 17th Floor
San Francisco, CA” 94104
(415) 954-4400 MPA ISO DEFEND. VERDOM REALTY’S MOT. EXTEND DISCOVERY DEADLINE
31774\12831219.1
TI. ARGUMENT
A Legal Standard
CCP Section 2024.020(a) generally requires completion of non-expert discovery at least
30 days prior to the initially scheduled trial date, and for motions concerning discovery to be
heard at least 15 day prior to the initially scheduled trial date. CCP Section 2025.050(a) provides
in relevant part: “On motion of any party, the court may grant leave to complete discovery
proceedings, or to have a motion concerning discovery heard, closer to the initial trial date, or to
reopen discovery after a new trial date has been set.” Section 2025.050(b) provides: “In
exercising its discretion to grant or deny this motion, the court shall take into consideration any
10 matter relevant to the leave requested, including, but not limited to, the following:”
11 (1) The necessity and the reasons for the discovery.
12 (2) The diligence or lack of diligence of the party seeking the
discovery or the hearing of a discovery motion, and the reasons that
13 the discovery was not completed or that the discovery motion was
not heard earlier.
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(3) Any likelihood that permitting the discovery or hearing the
15 discovery motion will prevent the case from going to trial on the
date set, or otherwise interfere with the trial calendar, or result in
16 prejudice to any other party.
17 (4) The length of time that has elapsed between any date previously
set, and the date presently set, for the trial of the action.
18
19 B. The Court Should Exercise Its Discretion To Extend The Discovery Deadline
20 In view of the facts and circumstances discussed above, Verdom submits that it is
21 appropriate for the Court to extend the deadline for completing discovery (as well as any hearing
22 on discovery motions) until June 19, 2020, including based on the factors set forth in CCP
23 Section 2024.050(b), as further explained below.
24 1 The Necessity and the Reasons for the Discovery
25 As discussed above, further discovery is needed in this case as a direct result of TNA’s
26 failure to perform its obligations under the Court-ordered Settlement, the consummation of which
27 would have fully resolved this action. The uncompleted discovery includes V erdom’s pending
28 motion to compel further deposition testimony and related documents from TNA, and Verdom’s
FanllaBraun + Mattel LLP -3-
35 Monto ‘Sto, 17th Flo
San Francisco, CA” 94104
(415) 954-4400 MPA ISO DEFEND. VERDOM REALTY’S MOT. EXTEND DISCOVERY DEADLINE
31774\12831219.1
pending document production requests to cross-defendants Wilkens and Fawer, and their related
depositions, all of which involve key issues in this case.
2 Verdom’s Diligence In Seeking Discovery and Why Such Discovery
Was Not Completed Earlier
As discussed above, an extension of the discovery deadline is warranted by the Court’s
continuance of the trial date--first due to the Settlement, and then because of the Coronavirus
pandemic’s reductions in the Court’ operations--as well as because of the Court’s continuance of
the hearing on the Discovery Motion (thus delaying the potential further deposition of TNA and
related document production), also as a result of the Coronavirus pandemic’s impact on the
Court’ operations. Furthermore, as noted above, V erdom deferred discovery after the parties
10
entered into the dispositive Settlement, and it only recently become clear that TNA would not
11
perform its obligations, thus resulting in this litigation going forward. Moreover, the conduct of
12
the depositions of Messrs. Wilkens and Fawer have been hampered by the various “shelter in
13
place” orders issued by local governmental authorities since mid-March of 2020. Thus, the
14
inability to complete discovery earlier was not due to a lack of diligence by Verdom.
15
16 3 Permitting Further Discovery Will Not Prevent the Case from Going
to Trial As Scheduled, or Otherwise Interfere with the Trial Calendar,
17 or Result in Prejudice to Any Other Party
18 As discussed above, the Motion seeks completion of discovery by June 19, 2020, which
19 should not prevent the trial scheduled for July 6, 2020 from proceeding, or otherwise interfere
20 with the Court’s Trial Calendar (e.g., it should not impact the Civil Trial Conference scheduled
21 for June 26, 2020). Noris there any indication that allowing the pending discovery to go forward
22 will prejudice any other party.
23 4. The Length of Time that has Elapsed the Initial Trial Date and the
Current Trial Date
24
As noted above, the trial in this case was initially scheduled to commence on January 21,
25
2020, and is now scheduled to begin on July 6, 2020. As discussed above, this interval is the
26
result of the Court postponing the trial twice on its own motion-- first until May 11, 2020 due to
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the Settlement that was expected to fully resolve this action--and then to July 6, 2020 due to the
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FanllaBraun + Mattel LLP -4-
35 Monto ‘Sto, 17th Flo
San Francisco, CA” 94104
(415) 954-4400 MPA ISO DEFEND. VERDOM REALTY’S MOT. EXTEND DISCOVERY DEADLINE
31774\12831219.1
Coronavirus pandemic’ s reductions in the Court’ operations.
Iv. CONCLUSION
WHEREOF, Verdom prays that the Court enter its Order:
1 Granting the Motion.
2 Extending the deadline for completing discovery (including any hearing on
discovery motions) until June 19, 2020.
3 For such other and further relief as this Court may deem just and proper.
Dated: May 12, 2020 FARE, BRAUN ARTEL LLP
Kaplan
10 Attorneys for Defendant
VERDOM REALTY MANAGEMENT LLC
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San Francisco, CA” 94104
(415) 954-4400 MPA ISO DEFEND. VERDOM REALTY’S MOT. EXTEND DISCOVERY DEADLINE
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Preview
Gary M. Kaplan (State Bar No. 155530) ELECTRONICALLY FILED Farella Braun + Martel LLP Superior Court of California, County of Placer 235 Montgomel a Street, 17th Floor San Francisco, ‘A 94104 Telephone: (415) 954-4400 05/12/2020 jy: Marina Olivarez Fuentes, Deputy Clert Facsimile: (415) 954-4480 gkaplan@ fbm.com Attorneys for Defendant VERDOM REALTY MANAGEMENT LLC IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF PLACER 10 11 TAHOE VISTA NOTE ACQUISITION LLC, Case No. SCV0039936 12 Plaintiff, MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF 13 vs. DEFENDANT VERDOM REALTY MANAGEMENT LLC’S MOTION TO 14 VERDOM REALTY MANAGEMENT LLC; EXTEND DISCOVERY and DOES 1-10, inclusive, COMPLETION DEADLINE 15 Defendants. 16 17 VERDOM REALTY MANAGEMENT LLC, Hearin 18 Date: June 4, 2020 Cross-Complainant, Time: 8:30 am. 19 Place: Dept. 42 10820 Justice Center Dr. 20 Vv Roseville, California 95678 21 TAHOE VISTA NOTE ACQUISITION LLC, MARK S. FAWER, AN INDIVIDUAL, [NO TRIAL DATE SET] 22 TIMOTHY WILKENS, individually and as Trustee of THE WILKENS 2000 TRUST and 23 Trustee of THE WILKENS 2003 TRUST, ROES 24 1-10, 25 Cross- Defendants. 26 27 28 Fanlla Braun + Mattel LLP 235 Montgomery Str, 17th Floor San Francisco, CA” 94104 (415) 954-4400 MPA ISO DEFEND. VERDOM REALTY’S MOT. EXTEND DISCOVERY DEADLINE I INTRODUCTION AND SUMMARY OF ARGUMENT Defendant V erdom Realty Management LLC (“Verdom”) submits its Memorandum of Points and Authorities (“MPA”) in support of its motion (“Motion”) pursuant to California Code of Civil Procedure (“CCP”) Section 2024.050 for an order extending the discovery cutoff in this case (including any hearing on discovery motions) until June 19, 2020. Such relief is sought in light of: (i) the Court’s continuance of the initially scheduled trial from January 21, 2020 to May 11, 2020 due to the parties’ Court-approved settlement of January 3, 2020; (ii) the failure and refusal of Plaintiff Tahoe Vista Note Acquisition (“TNA”) to perform its obligations under such settlement by the April 2, 2020 deadline (or since that time); (iii) the Court’s continuance of the 10 hearing on Verdom’s motion to compel further discovery from TNA from March 26, 2020 to 11 June 4, 2020 due to the Coronavirus pandemic; and (iv) the Court’s further continuance of the 12 trial in this matter from May 11, 2020 until July 6, 2020 due to the Coronavirus pandemic. 13 Il. RELEVANT BACKGROUND 14 1 At ajudicial settlement conference on January 3, 2020, the parties signed a 15 stipulation globally settling this case (the “Settlement”, which the Court approved by its Order 16 entered that same day (the “Settlement Order”). See accompanying Declaration of Gary M. 17 Kaplan in support of the Motion (“Kaplan Decl.”) 43 & Ex. 1. The Settlement (11) required 18 TNA to pay cash of $9,500,000 (the “Settlement Amount”) to Verdom by April 2, 2020 (the 19 “Settlement Deadline”). Kaplan Decl. {4 & Ex. 1. 20 2 Based on the Settlement, pursuant to the Settlement Order, the Court continued 21 the trial scheduled in this matter from January 21, 2020, with the expectation that such trial 22 would be unnecessary if the Settlement was consummated by the April 2, 2020 Settlement 23 Deadline. See Kaplan Decl. {5 and Exs. 1 & 2. 24 3 TNA agreed to postpone pending discovery proceedings as a result of the 25 Settlement and the Court’s postponement of the trial. Kaplan Decl. 46 & Ex. 3. 26 4 The Settlement ({4) provides that if TNA fails to timely pay the Settlement 27 Amount by the Settlement Deadline, then the parties would return to the status quo ante, 28 including proceeding to trial in this action. Kaplan Decl. 17 & Ex. 1. Fanlla Braun + Mattel LLP -1- 235 Montgomery Str, 17th Floor San Francisco, CA” 94104 (415) 954-4400 MPA ISO DEFEND. VERDOM REALTY’S MOT. EXTEND DISCOVERY DEADLINE 31774\12831219.1 5. TNA failed and refused to perform its obligations under the Settlement, including failing to pay the Settlement A mount (or any portion thereof) by the Settlement Deadline (or at any time since then). Kaplan Decl. 8! On April 6, 2020, Verdom memorialized TNA’s failure to perform the Settlement, and provided notice that the parties were returned to the status quo ante including continued litigation of this case. Kaplan Decl. 10 & Ex. 3. 6 On March 25, 2020, the Court ordered the hearing on Verdom’s then pending motion to compel further discovery from TNA (the “Discovery Motion”) continued from March 26, 2020 until June 4, 2020 as a result of the reduction in Court operations due to the Coronavirus pandemic. Kaplan Decl. § 11 & Ex. 4. 10 7 On April 14, 2020, the Court ordered the trial in this action continued from May 11 11, 2020 until July 6, 2020 (and continued the Civil Trial Conference from May 1, 2020 to June 12 26, 2020) as a result of the reduction in Court operations due to the Coronavirus pandemic. 13 Kaplan Decl. § 12 & Ex. 5. 14 8 Verdom has served document production requests to each of cross-defendants 15 Timothy Wilkens and Mark Fawer, as to which responses are due by June 8, 2020. Kaplan Decl. 16 4/13. In view of expected relaxation of the “shelter in place” orders issued by local 17 governmental authorities beginning in early June 2020, V erdom expects to take the depositions 18 of each of Messrs. Wilkens and Fawer during the period June 8-12 or June 15-19, 2020. Kaplan 19 Decl. 414. 20 9 If the Discovery Motion is granted at (or shortly after) the hearing scheduled for 21 June 4, 2020, Verdom expects that it will require two weeks to complete such discovery 22 (including the further deposition of TNA), i.e., by June 19, 2020. Kaplan Decl. 4 15. 23 10. In view of the foregoing, Verdom has asked TNA to agree to extend the discovery 24 deadline in accordance with CCP Sections 2024.050 and 2016.040, but TNA has been unwilling 25 to do so Kaplan Decl. 416 & Ex. 3. 26 27 TNA also failed and refused to enter into a comprehensive agreement with respect to the Settlement (Kaplan Decl. {9 & Ex. 3), although the Settlement Order states (at 96, 9) that the 28 signed Settlement is enforceable, and that the Court retains jurisdiction to enforce it. Fanlla Braun + Mattel LLP -2- 235 Montgomery Str, 17th Floor San Francisco, CA” 94104 (415) 954-4400 MPA ISO DEFEND. VERDOM REALTY’S MOT. EXTEND DISCOVERY DEADLINE 31774\12831219.1 TI. ARGUMENT A Legal Standard CCP Section 2024.020(a) generally requires completion of non-expert discovery at least 30 days prior to the initially scheduled trial date, and for motions concerning discovery to be heard at least 15 day prior to the initially scheduled trial date. CCP Section 2025.050(a) provides in relevant part: “On motion of any party, the court may grant leave to complete discovery proceedings, or to have a motion concerning discovery heard, closer to the initial trial date, or to reopen discovery after a new trial date has been set.” Section 2025.050(b) provides: “In exercising its discretion to grant or deny this motion, the court shall take into consideration any 10 matter relevant to the leave requested, including, but not limited to, the following:” 11 (1) The necessity and the reasons for the discovery. 12 (2) The diligence or lack of diligence of the party seeking the discovery or the hearing of a discovery motion, and the reasons that 13 the discovery was not completed or that the discovery motion was not heard earlier. 14 (3) Any likelihood that permitting the discovery or hearing the 15 discovery motion will prevent the case from going to trial on the date set, or otherwise interfere with the trial calendar, or result in 16 prejudice to any other party. 17 (4) The length of time that has elapsed between any date previously set, and the date presently set, for the trial of the action. 18 19 B. The Court Should Exercise Its Discretion To Extend The Discovery Deadline 20 In view of the facts and circumstances discussed above, Verdom submits that it is 21 appropriate for the Court to extend the deadline for completing discovery (as well as any hearing 22 on discovery motions) until June 19, 2020, including based on the factors set forth in CCP 23 Section 2024.050(b), as further explained below. 24 1 The Necessity and the Reasons for the Discovery 25 As discussed above, further discovery is needed in this case as a direct result of TNA’s 26 failure to perform its obligations under the Court-ordered Settlement, the consummation of which 27 would have fully resolved this action. The uncompleted discovery includes V erdom’s pending 28 motion to compel further deposition testimony and related documents from TNA, and Verdom’s FanllaBraun + Mattel LLP -3- 35 Monto ‘Sto, 17th Flo San Francisco, CA” 94104 (415) 954-4400 MPA ISO DEFEND. VERDOM REALTY’S MOT. EXTEND DISCOVERY DEADLINE 31774\12831219.1 pending document production requests to cross-defendants Wilkens and Fawer, and their related depositions, all of which involve key issues in this case. 2 Verdom’s Diligence In Seeking Discovery and Why Such Discovery Was Not Completed Earlier As discussed above, an extension of the discovery deadline is warranted by the Court’s continuance of the trial date--first due to the Settlement, and then because of the Coronavirus pandemic’s reductions in the Court’ operations--as well as because of the Court’s continuance of the hearing on the Discovery Motion (thus delaying the potential further deposition of TNA and related document production), also as a result of the Coronavirus pandemic’s impact on the Court’ operations. Furthermore, as noted above, V erdom deferred discovery after the parties 10 entered into the dispositive Settlement, and it only recently become clear that TNA would not 11 perform its obligations, thus resulting in this litigation going forward. Moreover, the conduct of 12 the depositions of Messrs. Wilkens and Fawer have been hampered by the various “shelter in 13 place” orders issued by local governmental authorities since mid-March of 2020. Thus, the 14 inability to complete discovery earlier was not due to a lack of diligence by Verdom. 15 16 3 Permitting Further Discovery Will Not Prevent the Case from Going to Trial As Scheduled, or Otherwise Interfere with the Trial Calendar, 17 or Result in Prejudice to Any Other Party 18 As discussed above, the Motion seeks completion of discovery by June 19, 2020, which 19 should not prevent the trial scheduled for July 6, 2020 from proceeding, or otherwise interfere 20 with the Court’s Trial Calendar (e.g., it should not impact the Civil Trial Conference scheduled 21 for June 26, 2020). Noris there any indication that allowing the pending discovery to go forward 22 will prejudice any other party. 23 4. The Length of Time that has Elapsed the Initial Trial Date and the Current Trial Date 24 As noted above, the trial in this case was initially scheduled to commence on January 21, 25 2020, and is now scheduled to begin on July 6, 2020. As discussed above, this interval is the 26 result of the Court postponing the trial twice on its own motion-- first until May 11, 2020 due to 27 the Settlement that was expected to fully resolve this action--and then to July 6, 2020 due to the 28 FanllaBraun + Mattel LLP -4- 35 Monto ‘Sto, 17th Flo San Francisco, CA” 94104 (415) 954-4400 MPA ISO DEFEND. VERDOM REALTY’S MOT. EXTEND DISCOVERY DEADLINE 31774\12831219.1 Coronavirus pandemic’ s reductions in the Court’ operations. Iv. CONCLUSION WHEREOF, Verdom prays that the Court enter its Order: 1 Granting the Motion. 2 Extending the deadline for completing discovery (including any hearing on discovery motions) until June 19, 2020. 3 For such other and further relief as this Court may deem just and proper. Dated: May 12, 2020 FARE, BRAUN ARTEL LLP Kaplan 10 Attorneys for Defendant VERDOM REALTY MANAGEMENT LLC 11 31774\13312581.1 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Fanlla Braun + Mattel LLP -5- 235 Montgomery Str, 17th Floor San Francisco, CA” 94104 (415) 954-4400 MPA ISO DEFEND. VERDOM REALTY’S MOT. EXTEND DISCOVERY DEADLINE 31774\12831219.1