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|/PAUL A. WARNER, ESQ. (SBN 112168)
j 1624 Santa Clara Drive, Suite 220
|| Roseville, CA 95661: . | FI‘Court.of:
Superior LE D
California
{|Telephone: (916) 996-3100- . _County of Piacer
|Facsimile: (916) 789-7557 MAR 01 2018
|Attomeys for Plaintiff Voyager Restaurant Group, Inc. Exec iake Chatters
: oe co By: S. Maftatte, D pu
IN T. HE SUPERIOR COURT OF THE STATE OF CALIFORNI
IN AND FOR THE COUNTY OF PLACER
10 || .
a | VOYAGER RESTAURANT GROUP, INC., a Case No. S-CV-0035599
California: corporation
12 | 7 MEMORANDUM OF POINTS AND
Plaintiff, ~ AUTHORITIES IN SUPPORT OF
13 Illy. a, -| MOTION FOR AN ORDER TO: —
I oS OO _ CONTINUE TRIAL AND RE- OPEN
14
"| SONORA GASOLINE CORPORATION, a | DISCOVERY
15. California corporation formerly known as. Hearing ©
| SONORA PETROLEUM, INC., a California | .Date: March 8,2018
16
‘corporation, GURRAJ SINGH GREWAL, Time: .8:30 a.m.
Dee SABAL FINANCIAL GROUP LP, a Dept.: 43
| Delaware limited partnership; 2012-SIP-1
18 | VENTURE LLC, a Delaware limited liability nae dt Ria coat
‘company as successor to TENNESSEE .tna -Dalee Mass 12, 2018
. 19
COMMERCE BANK, a Tennessee State “UNLIMITED CIVIL C ASE”
20
| chartered bank, ROSEVILLE PETROLEUM,
|INC., a California corporation, NIRMAL |
2i
SINGH, and DOES ONE shrough TWENTY,
99 inclusive,
a: Defendants.
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STATEMENT OF FACTS —
26 {I
27. Sonora owned the real property located at 2998 Foothills Blvd., Roseville, Ca 95747.
On or about August 3 1, 2011, Voyager entered a lease (the “Lease’’).regarding the
28 Ht:
Fag Ys
ae : “Memorandum of Points and Authorities ineuDEO ge Motion to: ContinueeTeal and Reopen! Discovery: _
0 *
restaurant space on the Property Sonora.
Voyager regularly communicated in writing to Grewal/Sonora, as landlord, from the lease
signing and throughout all times relevant to this action, that the tenant was committed to the
Lease and awaited the Landlord’s performance toinitiate Operations. The Landlord explained in
writing that itwas having difficulty performing and re-assured Voyager that itwas committed to
‘inlementing the Lease. When Voyager requested the Landlord’s performance, the Landlord
agreed to cooperate and, as part of a reaffirmation of the Lease, tendered the possession of space
to tenant in anticipation of funding. The Landlord continued to advise the tenant in writing that
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Al | its.funding was imminent and requested the tenant’s patience. Part of the ongoing negotiations to
12 fulfill the Landlord’s commitment to implementing the lease, was to record.a Memorandum of
13
Lease. The Landlord abated the rent until tenant improvement funding was available.
14
On July 21, 2014, Voyager and Grewal, on behalf of Sonoti, executed a Memorandum of
15
Lease, which was recorded on September 19, 2014 in Placer County's Recorder's Office as
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17 document number 2014-00655 15-00 (the Memorandum"),
18 On July 21, 2014, Voyager and Grewal, on behalf of Sonora, executed 4 Declaration of
19
Commencement of Lease, which was recorded on September 19, 2014.
20
Nonetheless, Defendants failed to provide the finds referred to in sections 10 and II off
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the Lease. Wepamee gave several notices, over an extended period, to Defendants in accordance
23 with the provisions referenced in Section 29, of the Lease but Defendants failed to perform|
24
Voyager filed itscomplaint for breach of the terms of the lease in accordance with Section 36.of
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the Lease on December 10, 2014.
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27 On or about August 5, 2016, Parmar received titleto the Premises upon close of escrow
28 with Sonora through an assignment from Chandi Group USA, Inc.
a Be
Memorandum of Points and Authorities in Support of Motion to'Continue Trial and Re-open Discovery
© | O
ARGUMENT
A. The Court Should Exercise Discretion in Granting a Continuance.
1. A Continuance is Necessary in Consideration of the Unexpected Death of Defense
Counsel
The power to-postpone for good cause the time of a hearing or trial is an integral part of a
court's jurisdiction to hear and determine an action or proceeding [ Curtis v. Underwood (1894)
101 Cal. 661, 669, 36 P. 110]. This power is independent from the rules of court which set out
procedures for its exercise [see Cal. Rules of Ct., Rule 3.1 332(b)] and statutory and case law
10 which describe situations where exercise may be appropriate [see Code Civ. Proc. §§ 594a-596}.
il ‘Trial courts may be reversed for refusing to grant a continuance iftheir actions, however
12 laudable as an effort to control the calendar, deny the party an opportunity to present his or her
43 case fairly and fully. { Hays v. Viscome (1953) 122 Cal. App. 2d 135, 140, 264 P.2d 173].
14
The court may grant a continuance only on an affirmative showing of good cause
15 requiring the continuance. Circumstances that may indicate good cause include:
16
(1) The unavailability of an essential lay or expert witness because of death, illness, or
other excusable circumstances;
17
(2) The unavailability of a party because of death, illness, or other excusable
18 circumstances; :
19 (3) The unavailability of trial counsel because of death, illness, or other excusable
circumstances;
20
(4) The substitution of trial counsel, but only where there is an affirmative showing that
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the substitution is required in the interests of justice;
22 (5) The addition of a new party if:
23 (A) The new party has not had a reasonable opportunity to conduct discovery and prepare
for trial; or .
24
(B) The other parties have not had a reasonable opportunity to conduct discovery and
25
prepare for trial in regard to the new party's involvement in the case;
26 (6) A party's excused inability to obtain essential testimony, documents, or other
27 material evidence despite diligent efforts; or
(7) A significant, unanticipated change in the status of the case as a result of which
* 28
the case is not ready for trial.
Be
* “Memorandum of Points and Authorities in Support of Motion to Continue Trial and Re-open Discovery
© O°
In this ease, as set forth in the Declaration of Paul Warner, filed herewith and
incorporated herein by this reference, counsel for Defendants Sonora Gasoline Corporation aad
Gurraj Grewal, a sole practitioner, suddenly died on the morning of J anuary 26, 2018. The last
contact with his office staff was on February 16, 2018, seeking an extension of time to respond
to'a cross-complaint in a related case while they tried to find replacement counsel. Voyager has
delayed seeking a postponement until this time hoping that replacement counsel would be found
and out of respect for Mr. Burstein’s daughter who is struggling with the aftermath of his death.
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2h 2. Plaintiff will be prejudiced without a continuance. .
12 In ruling on a motion or application for continuance, the court must consider allthe facts
13
and circumstances that are relevant to the determination. These may include:
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(1) The proximity of the trial date;
15
(2) Whether there was any previous continuance, extension of time, or delay of trialdue
16
17 to any party; .
18 ; (3) The length.of the continuance requested;
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(4) The availability of alternative means to address the problem that gave rise to the
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motion or application for a continuance;
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(5) The prejudice that parties or witnesses will suffer as a result of the continuance;
23 (6) If the case is entitled to a preferential trial setting, the reasons for that status and
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whether the need for a continuance outweighs the need to avoid delay;
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(7) The court's calendar and the impact of granting.a continuance on other pending trials;
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(8) Whether trial counsel is engaged in another trial;
27
28 (9) Whether all parties have stipulated to a continuance;
: -4-
Memorandum of Points and-Authorities in Support of Motion to Continue Trial and Re-open Discovery
© 0
(10) Whether the interests of justice are best served by a continuance, by the trial of the
aueer, or by imposing conditions on the continuance; and
(11) Any other fact or circumstance ee to ihe Sair determination of the motion or
application.
The ‘ii cannot proceed without representation for defendants Sonora Gasoline
Corporation and Gurraj.Grewal.
‘ Counsel for Defendants Roseville and Grewal does not object to a continuance under the
circumstances. .
ro
11 B. The Court Should Exercise Discretion and Re-open Discovery
12 Prior to his demise, Mr. Burstein had been arranging to have his client presented for-
13
deposition and to provide documents responsive to discovery. Similarly, counsel for Defendants
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Roseville Patioléui, Inc. and Nirmal Singh, declined to offer his clients for deposition scheduled!
15
for January 30 ot 31, 2018, when apprised of the demise of Mr. Burstein.
16
‘VW Continuance is available to procure additional material evidence or testimony of absent,
18 material witness ifparty has acted with diligence in preparing evidence for trial. Larson v.
19
Solbakken (1963) 221 Cal, App. 2d 410, 428-430, 34 Cal. Rptr. 450.
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On motion of any party, the court may grant leave to complete discovery proceedings, tol
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|have a motion concerning discovery heard, closer to the initialtrial date, or to re-open discovery
23 after a new trial date has been set.
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In exercising its discretion to grant ot deny this motion: the court takes into consideration
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any matter relevant to the leave requested, including, but not limited to, the following:
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(1) The necessity and the reasons for the discovery.
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28 (2) The diligence or lack of diligence of the party seeking the discovery or the hearing of a
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Memorandum of Poitits and Authorities in Support of Motion to Continue Trial and Re-open Discovery
© 0
discovery motion, and the reasons that the discovery was not completed or that the
discovery motion was not heard earlier.
(3) Any likelihood that permitting the discovery or hearing the discovery motion will
prevent the case from going to trial on the date set, or otherwise interfere with the trial
calendar, or result in prejudice to any other party.
(4) The length of time that has elapsed between any date previously set, and the date
presently set, for the trial of the action. Cal. C.C:P. § 2024.050(b).
“Good cause” may be found to justify discovery where specific facts show that the discovery
10
a1 is necessary for effective trial preparation or to prevent surprise at trial. Associated Brewers ,
12 | Distributing Co. v. Superior Court of Los Angeles County, 65 Cal. 2d 583, 55 Cal. Rptr. 772,
13
422 P.2d 332 (1967).
14
Counsel for Defendants Roseville arid Grewal agreed to cooperate regarding discovery.
15
c. Unless. the Trial Is Postponed Plaintiff Will Suffer Irreparable Harm
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Because of the unforeseen demise of Mr. Burstein, which precluded
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completion of the depositions of the primary defendants, Grewal and Singh, Plaintiff
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would be unduly harmed if the trial were not postponed but proceeded on March 19, 2018,
20 and discovery not completed. Judicial economy and the trial of the issues on the merits
21 would be served by continuing the trialfor a short period to accommodate Defendants
22 replacement of counsel and the completion of discovery.
23 CONCLUSION
24 The granting or denial of a motion to continue the trial rests within the court’s sound
25
. |discretion. For each of the foregoing reasons itis respectfully requested that this Court order the
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continuance of the trial from March 19, 2018, taking the Mandatory Settlement Conference and
27
Civil Trial Conferences off calendar, and that discovery be re-opened in accordance with new trial
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Memorandum of Points and Authorities in Support of Motion to Continué Trial and Re-open Discovery
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Hate. :
Dated: 1Mari8 , A. Mame.
Attorney for Plaintiff
Voyager Restaurant Group, Inc.
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Memorandum of Points and Authorities in Support of Motion toContinue Trial and Re-open Discovery
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|/PAUL A. WARNER, ESQ. (SBN 112168) j 1624 Santa Clara Drive, Suite 220 || Roseville, CA 95661: . | FI‘Court.of: Superior LE D California {|Telephone: (916) 996-3100- . _County of Piacer |Facsimile: (916) 789-7557 MAR 01 2018 |Attomeys for Plaintiff Voyager Restaurant Group, Inc. Exec iake Chatters : oe co By: S. Maftatte, D pu IN T. HE SUPERIOR COURT OF THE STATE OF CALIFORNI IN AND FOR THE COUNTY OF PLACER 10 || . a | VOYAGER RESTAURANT GROUP, INC., a Case No. S-CV-0035599 California: corporation 12 | 7 MEMORANDUM OF POINTS AND Plaintiff, ~ AUTHORITIES IN SUPPORT OF 13 Illy. a, -| MOTION FOR AN ORDER TO: — I oS OO _ CONTINUE TRIAL AND RE- OPEN 14 "| SONORA GASOLINE CORPORATION, a | DISCOVERY 15. California corporation formerly known as. Hearing © | SONORA PETROLEUM, INC., a California | .Date: March 8,2018 16 ‘corporation, GURRAJ SINGH GREWAL, Time: .8:30 a.m. Dee SABAL FINANCIAL GROUP LP, a Dept.: 43 | Delaware limited partnership; 2012-SIP-1 18 | VENTURE LLC, a Delaware limited liability nae dt Ria coat ‘company as successor to TENNESSEE .tna -Dalee Mass 12, 2018 . 19 COMMERCE BANK, a Tennessee State “UNLIMITED CIVIL C ASE” 20 | chartered bank, ROSEVILLE PETROLEUM, |INC., a California corporation, NIRMAL | 2i SINGH, and DOES ONE shrough TWENTY, 99 inclusive, a: Defendants. 24 |\7 25 |f STATEMENT OF FACTS — 26 {I 27. Sonora owned the real property located at 2998 Foothills Blvd., Roseville, Ca 95747. On or about August 3 1, 2011, Voyager entered a lease (the “Lease’’).regarding the 28 Ht: Fag Ys ae : “Memorandum of Points and Authorities ineuDEO ge Motion to: ContinueeTeal and Reopen! Discovery: _ 0 * restaurant space on the Property Sonora. Voyager regularly communicated in writing to Grewal/Sonora, as landlord, from the lease signing and throughout all times relevant to this action, that the tenant was committed to the Lease and awaited the Landlord’s performance toinitiate Operations. The Landlord explained in writing that itwas having difficulty performing and re-assured Voyager that itwas committed to ‘inlementing the Lease. When Voyager requested the Landlord’s performance, the Landlord agreed to cooperate and, as part of a reaffirmation of the Lease, tendered the possession of space to tenant in anticipation of funding. The Landlord continued to advise the tenant in writing that 10 Al | its.funding was imminent and requested the tenant’s patience. Part of the ongoing negotiations to 12 fulfill the Landlord’s commitment to implementing the lease, was to record.a Memorandum of 13 Lease. The Landlord abated the rent until tenant improvement funding was available. 14 On July 21, 2014, Voyager and Grewal, on behalf of Sonoti, executed a Memorandum of 15 Lease, which was recorded on September 19, 2014 in Placer County's Recorder's Office as 16 17 document number 2014-00655 15-00 (the Memorandum"), 18 On July 21, 2014, Voyager and Grewal, on behalf of Sonora, executed 4 Declaration of 19 Commencement of Lease, which was recorded on September 19, 2014. 20 Nonetheless, Defendants failed to provide the finds referred to in sections 10 and II off 21 22 the Lease. Wepamee gave several notices, over an extended period, to Defendants in accordance 23 with the provisions referenced in Section 29, of the Lease but Defendants failed to perform| 24 Voyager filed itscomplaint for breach of the terms of the lease in accordance with Section 36.of 25 the Lease on December 10, 2014. 26 27 On or about August 5, 2016, Parmar received titleto the Premises upon close of escrow 28 with Sonora through an assignment from Chandi Group USA, Inc. a Be Memorandum of Points and Authorities in Support of Motion to'Continue Trial and Re-open Discovery © | O ARGUMENT A. The Court Should Exercise Discretion in Granting a Continuance. 1. A Continuance is Necessary in Consideration of the Unexpected Death of Defense Counsel The power to-postpone for good cause the time of a hearing or trial is an integral part of a court's jurisdiction to hear and determine an action or proceeding [ Curtis v. Underwood (1894) 101 Cal. 661, 669, 36 P. 110]. This power is independent from the rules of court which set out procedures for its exercise [see Cal. Rules of Ct., Rule 3.1 332(b)] and statutory and case law 10 which describe situations where exercise may be appropriate [see Code Civ. Proc. §§ 594a-596}. il ‘Trial courts may be reversed for refusing to grant a continuance iftheir actions, however 12 laudable as an effort to control the calendar, deny the party an opportunity to present his or her 43 case fairly and fully. { Hays v. Viscome (1953) 122 Cal. App. 2d 135, 140, 264 P.2d 173]. 14 The court may grant a continuance only on an affirmative showing of good cause 15 requiring the continuance. Circumstances that may indicate good cause include: 16 (1) The unavailability of an essential lay or expert witness because of death, illness, or other excusable circumstances; 17 (2) The unavailability of a party because of death, illness, or other excusable 18 circumstances; : 19 (3) The unavailability of trial counsel because of death, illness, or other excusable circumstances; 20 (4) The substitution of trial counsel, but only where there is an affirmative showing that 21 the substitution is required in the interests of justice; 22 (5) The addition of a new party if: 23 (A) The new party has not had a reasonable opportunity to conduct discovery and prepare for trial; or . 24 (B) The other parties have not had a reasonable opportunity to conduct discovery and 25 prepare for trial in regard to the new party's involvement in the case; 26 (6) A party's excused inability to obtain essential testimony, documents, or other 27 material evidence despite diligent efforts; or (7) A significant, unanticipated change in the status of the case as a result of which * 28 the case is not ready for trial. Be * “Memorandum of Points and Authorities in Support of Motion to Continue Trial and Re-open Discovery © O° In this ease, as set forth in the Declaration of Paul Warner, filed herewith and incorporated herein by this reference, counsel for Defendants Sonora Gasoline Corporation aad Gurraj Grewal, a sole practitioner, suddenly died on the morning of J anuary 26, 2018. The last contact with his office staff was on February 16, 2018, seeking an extension of time to respond to'a cross-complaint in a related case while they tried to find replacement counsel. Voyager has delayed seeking a postponement until this time hoping that replacement counsel would be found and out of respect for Mr. Burstein’s daughter who is struggling with the aftermath of his death. 10 2h 2. Plaintiff will be prejudiced without a continuance. . 12 In ruling on a motion or application for continuance, the court must consider allthe facts 13 and circumstances that are relevant to the determination. These may include: 14 (1) The proximity of the trial date; 15 (2) Whether there was any previous continuance, extension of time, or delay of trialdue 16 17 to any party; . 18 ; (3) The length.of the continuance requested; 19 (4) The availability of alternative means to address the problem that gave rise to the 20 motion or application for a continuance; 21 22 (5) The prejudice that parties or witnesses will suffer as a result of the continuance; 23 (6) If the case is entitled to a preferential trial setting, the reasons for that status and 24 whether the need for a continuance outweighs the need to avoid delay; 25 (7) The court's calendar and the impact of granting.a continuance on other pending trials; 26 (8) Whether trial counsel is engaged in another trial; 27 28 (9) Whether all parties have stipulated to a continuance; : -4- Memorandum of Points and-Authorities in Support of Motion to Continue Trial and Re-open Discovery © 0 (10) Whether the interests of justice are best served by a continuance, by the trial of the aueer, or by imposing conditions on the continuance; and (11) Any other fact or circumstance ee to ihe Sair determination of the motion or application. The ‘ii cannot proceed without representation for defendants Sonora Gasoline Corporation and Gurraj.Grewal. ‘ Counsel for Defendants Roseville and Grewal does not object to a continuance under the circumstances. . ro 11 B. The Court Should Exercise Discretion and Re-open Discovery 12 Prior to his demise, Mr. Burstein had been arranging to have his client presented for- 13 deposition and to provide documents responsive to discovery. Similarly, counsel for Defendants 14 Roseville Patioléui, Inc. and Nirmal Singh, declined to offer his clients for deposition scheduled! 15 for January 30 ot 31, 2018, when apprised of the demise of Mr. Burstein. 16 ‘VW Continuance is available to procure additional material evidence or testimony of absent, 18 material witness ifparty has acted with diligence in preparing evidence for trial. Larson v. 19 Solbakken (1963) 221 Cal, App. 2d 410, 428-430, 34 Cal. Rptr. 450. 20 On motion of any party, the court may grant leave to complete discovery proceedings, tol 21 22 |have a motion concerning discovery heard, closer to the initialtrial date, or to re-open discovery 23 after a new trial date has been set. 24 In exercising its discretion to grant ot deny this motion: the court takes into consideration 25 any matter relevant to the leave requested, including, but not limited to, the following: 26 (1) The necessity and the reasons for the discovery. 27 28 (2) The diligence or lack of diligence of the party seeking the discovery or the hearing of a -5- Memorandum of Poitits and Authorities in Support of Motion to Continue Trial and Re-open Discovery © 0 discovery motion, and the reasons that the discovery was not completed or that the discovery motion was not heard earlier. (3) Any likelihood that permitting the discovery or hearing the discovery motion will prevent the case from going to trial on the date set, or otherwise interfere with the trial calendar, or result in prejudice to any other party. (4) The length of time that has elapsed between any date previously set, and the date presently set, for the trial of the action. Cal. C.C:P. § 2024.050(b). “Good cause” may be found to justify discovery where specific facts show that the discovery 10 a1 is necessary for effective trial preparation or to prevent surprise at trial. Associated Brewers , 12 | Distributing Co. v. Superior Court of Los Angeles County, 65 Cal. 2d 583, 55 Cal. Rptr. 772, 13 422 P.2d 332 (1967). 14 Counsel for Defendants Roseville arid Grewal agreed to cooperate regarding discovery. 15 c. Unless. the Trial Is Postponed Plaintiff Will Suffer Irreparable Harm 16 Because of the unforeseen demise of Mr. Burstein, which precluded 17 18 completion of the depositions of the primary defendants, Grewal and Singh, Plaintiff 19 would be unduly harmed if the trial were not postponed but proceeded on March 19, 2018, 20 and discovery not completed. Judicial economy and the trial of the issues on the merits 21 would be served by continuing the trialfor a short period to accommodate Defendants 22 replacement of counsel and the completion of discovery. 23 CONCLUSION 24 The granting or denial of a motion to continue the trial rests within the court’s sound 25 . |discretion. For each of the foregoing reasons itis respectfully requested that this Court order the 26 continuance of the trial from March 19, 2018, taking the Mandatory Settlement Conference and 27 Civil Trial Conferences off calendar, and that discovery be re-opened in accordance with new trial 28 -.6- Memorandum of Points and Authorities in Support of Motion to Continué Trial and Re-open Discovery 0 3 Hate. : Dated: 1Mari8 , A. Mame. Attorney for Plaintiff Voyager Restaurant Group, Inc. 10 11 12 13 14 45 16 17 18 19 20 21 22 23 24 25 26 “27 28 ae Memorandum of Points and Authorities in Support of Motion toContinue Trial and Re-open Discovery