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PAUL A. WARNER, ESQ. (SBN 112168)
1624 Santa Clara Drive, Suite 220
Roseville, CA 95661
SUPERIOR COURT OF CALIFORN
Telephone: (916) 996-3100 COUNTY OF PLACER
Facsimile: (916) 789-7557
AUG 16
OM FY
4
4utu
Attorneys for Plaintiff Voyager Restaurant Group, Inc. JAKE CHAITERS
EXECUTIVE OFFICER & CLEA
By: C. Henderson, Deputy
IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF PLACER
10
i VOYAGER RESTAURANT GROUP, INC., al Case No. S-CV-0035599
California corporation
12 MEMORANDUM OF POINTS AND
Plaintiff, AUTHORITIES IN OPPOSITION TO EX
13
v. PARTE APPLICATION FOR AN ORDER
TO CONTINUE TRIAL
14
SONORA GASOLINE CORPORATION, a Hearing
15 California corporation formerly known as Date: August 16, 2018
SONORA PETROLEUM, INC., a California Time: 8:00 a.m.
16
corporation, GURRAJ SINGH GREWAL, Dept.: 40
17 SABAL FINANCIAL GROUP LP, a
Delaware limited partnership; 2012-SIP-1
18 Trial Date: August 27, 2018
VENTURE LLC, a Delaware limited liability
company as successor to TENNESSEE “UNLIMITED CIVIL CASE”
19
COMMERCE BANK, a Tennessee State
20 chartered bank, ROSEVILLE PETROLEUM,
INC., a California corporation, NIRMAL
21
SINGH, and DOES ONE through TWENTY,
22
inclusive,
23 Defendants.
24
25
STATEMENT OF FACTS
26
This matter had been reluctantly continued by the Court from itsprevious setting of
27
March 19, 2018, in response to the unexpected death of counsel for Defendants Sonora Gasoline
28
Corporation and Gurraj Grewal.
-1-
MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO EX PARTE APPLICATION FOR AN
ORDER TO CONTINUE TRIAL
ARGUMENT
Cal.Rules of Court, Rule 3.1332 Motion or application for continuance of trial
(a) Trial dates are firm
To ensure the prompt disposition of civil cases, the dates assigned for a
trialare firm. All parties and their counsel must regard the date set for trialas
certain.
Continuances before or during trial in civil cases are disfavored. [Cal. Rules of Court, rule
3.1332] The dates assigned for conferences before trial and for trial must, according to the
recommendations of the Judicial Council, be regarded by counsel as definite court appointments.
10
[Cal. Rules of Court Appendix Division I § 9] Thus, a continuance before or during trial will not
11
12
be granted except on an affirmative showing of good cause under the standards recommended
13 in Cal. Rules of Court Appendix Division I § 9. [Cal. Rules of Court, rule 3.1332; see also
14
County of San Bernardino v. Doria Mining & Engineering Corp., 72 Cal. App. 3d 776, 140 Cal.
1S
Rptr. 383 (4th Dist. 1977) (emphasis added)
16
17
A. The Court Should Deny the Ex Parte Application for a Continuance.
18
1. The Application is not accompanied by a Stipulation of All Parties to Continue
19
20 Placer County Local Rule 20.1.12 provides:
21 No mandatory settlement conference, civil trial conference, or trial may be
continued except upon noticed motion set before the presiding judge or another
22
judicial officer as designated by the presiding judge. The parties may also present an
23 ex parte application, subject to the requirements of Local Rule 10.8, requesting a
continuance based upon the written stipulation of all parties. Stipulations to
24 continue the trial date must include mutually acceptable future trial dates agreed upon
by all parties. No continuance will be granted absent an affirmative showing of good
25
cause. (emphasis added)
26
Defendants’ Application isnot based upon the written stipulation of all parties.
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2. The Application has Failed to Make an Affirmative Showing of Good Cause
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MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO EX PARTE APPLICATION FOR AN
ORDER TO CONTINUE TRIAL
Placer County Local Rule 10.8 provides:
The Court will not issue any orders on ex parte requests unless the order requested is
necessary to prevent injustice, irreparable harm, immediate danger, or states a
proper statutory basis for granting ex parte relief, and due to time constraints, a
noticed motion cannot be made. Further, failure to timely request a noticed motion
must not have been due to any failure or lack of diligence on the part of the
requesting attorney or party. (emphasis added)
As set forth in Cal. Rules of Court Appendix Division I § 9, the Judicial Council
recommends that the following matters, under normal circumstances, be considered good cause
for the granting of a continuance:
10
11 (1) the death of the trial attorney or an essential witness where the shortage of time before
trial makes it infeasible to substitute another attorney or witness;
12 (2) the death of an expert witness where the lack of time before trial leaves no reasonable
opportunity for a substitute expert witness to become qualified to testify;
13
(3) the death of any other witness who cannot be replaced with another witness who
14 could testify to the same facts;
(4) the illness of a party or essential witness, where that illness is appropriately;
15 documented by a medical doctor, except that, when it is anticipated that the
incapacity of the party or essential witness will continue for an extended period, the
16
court should order the deposition of the party or witness so that the trial may,
17 proceed on the next date set;
(5) the documented illness of the trial attorney or an expert witness, except that the court
18 should consider the feasibility of substituting another attorney or expert witness;
(6) the documented illness of any other witness who cannot be replaced with another
19
witness who could testify to the same facts;
20 (7) the unavailability of the trialattorney because he or she is engaged in another trial or
the hearing of a disciplinary matter, ifthe attorney could not have reasonably anticipated
21
the conflict in trial dates and the court makes a finding, well before trial, that no other
22
attorney in the attorney’s law firm could try the case;
(8) the unavailability of a witness, who has been subpoenaed or has agreed to be present,
23 due to an unavoidable emergency that counsel did not know and could not have known
about at the conferences before trial;
24
(9) the substitution of the trial attorney only ifthe substitution is required in the interests
25
of justice [see County of San Bernardino v. Doria Mining & Engineering Corp., 72 Cal.
App. 3d 776, 140 Cal. Rptr. 383 (4th Dist. 1977) (parties have no absolute right to
26 substitute counsel atlast moment if the change would necessitate a continuance of trial)];
(10) a significant change in the: status of the case where, because of a change in the
27
parties or pleadings ordered by the court, the case is not ready for trial. [See Medford v.
28 Superior Court, 140 Cal. App. 3d 236, 189 Cal. Rptr. 227 (2d Dist. 1983) (filing on
responding to a cross-complaint may necessitate continuance); see also Code Civ. Proc. §
a Fa
MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO EX PARTE APPLICATION FOR AN
ORDER TO CONTINUE TRIAL
594a (court may postpone trial if amendment of pleadings under Code Civ. Proc. § 473
renders postponement necessary)]
(11) the court may abuse its discretion by denying a continuance based on the failure of
subpoenaed witness to appear. [Jurado v. Toys “R” Us, Inc., 12 Cal. App. 4th 1615, 16
Cal. Rptr. 2d 158 (2d Dist. 1993)]
In considering applications to continue due to illness, the trial court should be governed
by the course which seems most likely to accomplish substantial justice, and in seeking such a
course, court may take into consideration the legal sufficiency of a showing in support of the
motion and good faith of the moving party. Kalmus v. Kalmus (App. 1951) 103 Cal.App.2d
405, 230 P.2d 57, certiorari denied 72 S.Ct. 292, 342 U.S. 903, 96 L.Ed. 676.
10
The inability of a party because of illness to attend on the court does not require granting
11
12 of an application for a continuance, particularly where showing justifies conclusion that injustice
13 will be as likely to follow from granting continuance as from its refusal. Thorpe v. Thorpe
14
(App. 1946) 75 Cal.App.2d 605, 171 P.2d 126
15
In this case, as set forth in the Declaration of Paul Warner, filed herewith and
16
17
incorporated herein by this reference, counsel for Plaintiff requested documentation of the
18 necessity for Defendant Singh’s inability to attend trial and none was produced at that time.
19
Furthermore, when Plaintiff attempted to set the deposition of Defendants, counsel was
20
informed that he was “out of the country until late August”. Thereafter, when he unexpectedly
21
appeared at the Mandatory Settlement Conference, counsel was informed that he would be in
22
23 California for a few days for medical care. Further, on August 7, counsel admitted that he could
24 make Mr. Singh available for a deposition in exchange for the depositions of Plaintiff's
25
witnesses and a continuance of the trial.
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3. Plaintiff will be Prejudiced with the Granting of a Continuance
Zi
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MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO EX PARTE APPLICATION FOR AN
ORDER TO CONTINUE TRIAL
In ruling on a motion or application for continuance, the court must consider all the facts
and circumstances that are relevant to the determination. These may include:
(1) The proximity of the trial date; [August 27, 2018]
(2) Whether there was any previous continuance, extension of time, or delay of trial due
to any party; [From March 19, 2018]
(3) The length of the continuance requested;
(4) The availability of alternative means to address the problem that gave rise to the
motion or application for a continuance;
10
11 (5) The prejudice that parties or witnesses will suffer as a result of the continuance;
12 (6) If the case is entitled to a preferential trialsetting, the reasons for that status and
13
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;
15
(8) Whether trial counsel is engaged in another trial;
16
17 (9) Whether all parties have stipulated to a continuance; [No]
18 (10) Whether the interests of justice are best served by a continuance, by the trialof the
19
matter, or by imposing conditions on the continuance; and
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(11) Any other fact or circumstance relevant to the fair determination of the motion or
2d.
22
application.
23 During the dialog regarding setting the deposition of Defendants, counsel for Defendants
24
asked when the PMK for Plaintiff would be unavailable due to his scheduled incarceration, and
25
then suggested that his deposition be set for August 31 when told September 17. If the trial is
26
continued, Plaintiff will be prejudiced by the absence of a material witness.
27
28 CONCLUSION
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MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO EX PARTE APPLICATION FOR AN
ORDER TO CONTINUE TRIAL
Dated: 16Aug18
Voyager Restaurant Group, Inc.
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A.
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MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO EX PARTE APPLICATION FOR AN
ORDER TO CONTINUE TRIAL
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PAUL A. WARNER, ESQ. (SBN 112168) 1624 Santa Clara Drive, Suite 220 Roseville, CA 95661 SUPERIOR COURT OF CALIFORN Telephone: (916) 996-3100 COUNTY OF PLACER Facsimile: (916) 789-7557 AUG 16 OM FY 4 4utu Attorneys for Plaintiff Voyager Restaurant Group, Inc. JAKE CHAITERS EXECUTIVE OFFICER & CLEA By: C. Henderson, Deputy IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF PLACER 10 i VOYAGER RESTAURANT GROUP, INC., al Case No. S-CV-0035599 California corporation 12 MEMORANDUM OF POINTS AND Plaintiff, AUTHORITIES IN OPPOSITION TO EX 13 v. PARTE APPLICATION FOR AN ORDER TO CONTINUE TRIAL 14 SONORA GASOLINE CORPORATION, a Hearing 15 California corporation formerly known as Date: August 16, 2018 SONORA PETROLEUM, INC., a California Time: 8:00 a.m. 16 corporation, GURRAJ SINGH GREWAL, Dept.: 40 17 SABAL FINANCIAL GROUP LP, a Delaware limited partnership; 2012-SIP-1 18 Trial Date: August 27, 2018 VENTURE LLC, a Delaware limited liability company as successor to TENNESSEE “UNLIMITED CIVIL CASE” 19 COMMERCE BANK, a Tennessee State 20 chartered bank, ROSEVILLE PETROLEUM, INC., a California corporation, NIRMAL 21 SINGH, and DOES ONE through TWENTY, 22 inclusive, 23 Defendants. 24 25 STATEMENT OF FACTS 26 This matter had been reluctantly continued by the Court from itsprevious setting of 27 March 19, 2018, in response to the unexpected death of counsel for Defendants Sonora Gasoline 28 Corporation and Gurraj Grewal. -1- MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO EX PARTE APPLICATION FOR AN ORDER TO CONTINUE TRIAL ARGUMENT Cal.Rules of Court, Rule 3.1332 Motion or application for continuance of trial (a) Trial dates are firm To ensure the prompt disposition of civil cases, the dates assigned for a trialare firm. All parties and their counsel must regard the date set for trialas certain. Continuances before or during trial in civil cases are disfavored. [Cal. Rules of Court, rule 3.1332] The dates assigned for conferences before trial and for trial must, according to the recommendations of the Judicial Council, be regarded by counsel as definite court appointments. 10 [Cal. Rules of Court Appendix Division I § 9] Thus, a continuance before or during trial will not 11 12 be granted except on an affirmative showing of good cause under the standards recommended 13 in Cal. Rules of Court Appendix Division I § 9. [Cal. Rules of Court, rule 3.1332; see also 14 County of San Bernardino v. Doria Mining & Engineering Corp., 72 Cal. App. 3d 776, 140 Cal. 1S Rptr. 383 (4th Dist. 1977) (emphasis added) 16 17 A. The Court Should Deny the Ex Parte Application for a Continuance. 18 1. The Application is not accompanied by a Stipulation of All Parties to Continue 19 20 Placer County Local Rule 20.1.12 provides: 21 No mandatory settlement conference, civil trial conference, or trial may be continued except upon noticed motion set before the presiding judge or another 22 judicial officer as designated by the presiding judge. The parties may also present an 23 ex parte application, subject to the requirements of Local Rule 10.8, requesting a continuance based upon the written stipulation of all parties. Stipulations to 24 continue the trial date must include mutually acceptable future trial dates agreed upon by all parties. No continuance will be granted absent an affirmative showing of good 25 cause. (emphasis added) 26 Defendants’ Application isnot based upon the written stipulation of all parties. 27 2. The Application has Failed to Make an Affirmative Showing of Good Cause 28 -2- MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO EX PARTE APPLICATION FOR AN ORDER TO CONTINUE TRIAL Placer County Local Rule 10.8 provides: The Court will not issue any orders on ex parte requests unless the order requested is necessary to prevent injustice, irreparable harm, immediate danger, or states a proper statutory basis for granting ex parte relief, and due to time constraints, a noticed motion cannot be made. Further, failure to timely request a noticed motion must not have been due to any failure or lack of diligence on the part of the requesting attorney or party. (emphasis added) As set forth in Cal. Rules of Court Appendix Division I § 9, the Judicial Council recommends that the following matters, under normal circumstances, be considered good cause for the granting of a continuance: 10 11 (1) the death of the trial attorney or an essential witness where the shortage of time before trial makes it infeasible to substitute another attorney or witness; 12 (2) the death of an expert witness where the lack of time before trial leaves no reasonable opportunity for a substitute expert witness to become qualified to testify; 13 (3) the death of any other witness who cannot be replaced with another witness who 14 could testify to the same facts; (4) the illness of a party or essential witness, where that illness is appropriately; 15 documented by a medical doctor, except that, when it is anticipated that the incapacity of the party or essential witness will continue for an extended period, the 16 court should order the deposition of the party or witness so that the trial may, 17 proceed on the next date set; (5) the documented illness of the trial attorney or an expert witness, except that the court 18 should consider the feasibility of substituting another attorney or expert witness; (6) the documented illness of any other witness who cannot be replaced with another 19 witness who could testify to the same facts; 20 (7) the unavailability of the trialattorney because he or she is engaged in another trial or the hearing of a disciplinary matter, ifthe attorney could not have reasonably anticipated 21 the conflict in trial dates and the court makes a finding, well before trial, that no other 22 attorney in the attorney’s law firm could try the case; (8) the unavailability of a witness, who has been subpoenaed or has agreed to be present, 23 due to an unavoidable emergency that counsel did not know and could not have known about at the conferences before trial; 24 (9) the substitution of the trial attorney only ifthe substitution is required in the interests 25 of justice [see County of San Bernardino v. Doria Mining & Engineering Corp., 72 Cal. App. 3d 776, 140 Cal. Rptr. 383 (4th Dist. 1977) (parties have no absolute right to 26 substitute counsel atlast moment if the change would necessitate a continuance of trial)]; (10) a significant change in the: status of the case where, because of a change in the 27 parties or pleadings ordered by the court, the case is not ready for trial. [See Medford v. 28 Superior Court, 140 Cal. App. 3d 236, 189 Cal. Rptr. 227 (2d Dist. 1983) (filing on responding to a cross-complaint may necessitate continuance); see also Code Civ. Proc. § a Fa MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO EX PARTE APPLICATION FOR AN ORDER TO CONTINUE TRIAL 594a (court may postpone trial if amendment of pleadings under Code Civ. Proc. § 473 renders postponement necessary)] (11) the court may abuse its discretion by denying a continuance based on the failure of subpoenaed witness to appear. [Jurado v. Toys “R” Us, Inc., 12 Cal. App. 4th 1615, 16 Cal. Rptr. 2d 158 (2d Dist. 1993)] In considering applications to continue due to illness, the trial court should be governed by the course which seems most likely to accomplish substantial justice, and in seeking such a course, court may take into consideration the legal sufficiency of a showing in support of the motion and good faith of the moving party. Kalmus v. Kalmus (App. 1951) 103 Cal.App.2d 405, 230 P.2d 57, certiorari denied 72 S.Ct. 292, 342 U.S. 903, 96 L.Ed. 676. 10 The inability of a party because of illness to attend on the court does not require granting 11 12 of an application for a continuance, particularly where showing justifies conclusion that injustice 13 will be as likely to follow from granting continuance as from its refusal. Thorpe v. Thorpe 14 (App. 1946) 75 Cal.App.2d 605, 171 P.2d 126 15 In this case, as set forth in the Declaration of Paul Warner, filed herewith and 16 17 incorporated herein by this reference, counsel for Plaintiff requested documentation of the 18 necessity for Defendant Singh’s inability to attend trial and none was produced at that time. 19 Furthermore, when Plaintiff attempted to set the deposition of Defendants, counsel was 20 informed that he was “out of the country until late August”. Thereafter, when he unexpectedly 21 appeared at the Mandatory Settlement Conference, counsel was informed that he would be in 22 23 California for a few days for medical care. Further, on August 7, counsel admitted that he could 24 make Mr. Singh available for a deposition in exchange for the depositions of Plaintiff's 25 witnesses and a continuance of the trial. 26 3. Plaintiff will be Prejudiced with the Granting of a Continuance Zi 28 -4- MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO EX PARTE APPLICATION FOR AN ORDER TO CONTINUE TRIAL In ruling on a motion or application for continuance, the court must consider all the facts and circumstances that are relevant to the determination. These may include: (1) The proximity of the trial date; [August 27, 2018] (2) Whether there was any previous continuance, extension of time, or delay of trial due to any party; [From March 19, 2018] (3) The length of the continuance requested; (4) The availability of alternative means to address the problem that gave rise to the motion or application for a continuance; 10 11 (5) The prejudice that parties or witnesses will suffer as a result of the continuance; 12 (6) If the case is entitled to a preferential trialsetting, the reasons for that status and 13 whether the need for a continuance outweighs the need to avoid delay; 14 (7) The court's calendar and the impact of granting a continuance on other pending trials; 15 (8) Whether trial counsel is engaged in another trial; 16 17 (9) Whether all parties have stipulated to a continuance; [No] 18 (10) Whether the interests of justice are best served by a continuance, by the trialof the 19 matter, or by imposing conditions on the continuance; and 20 (11) Any other fact or circumstance relevant to the fair determination of the motion or 2d. 22 application. 23 During the dialog regarding setting the deposition of Defendants, counsel for Defendants 24 asked when the PMK for Plaintiff would be unavailable due to his scheduled incarceration, and 25 then suggested that his deposition be set for August 31 when told September 17. If the trial is 26 continued, Plaintiff will be prejudiced by the absence of a material witness. 27 28 CONCLUSION -5- MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO EX PARTE APPLICATION FOR AN ORDER TO CONTINUE TRIAL Dated: 16Aug18 Voyager Restaurant Group, Inc. 10 A. 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 _6- MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO EX PARTE APPLICATION FOR AN ORDER TO CONTINUE TRIAL