Preview
1 JON D. UNIVERSAL, SBN 141255
JAMES P. MAYO, SBN 169897 11/25/2020
2 NEJLA NASSIRIAN, SBN 308730
BRETT H. WANNER, SBN 314025
3 UNIVERSAL & SHANNON, LLP
2240 Douglas Boulevard, Suite 290
4 Roseville, California 95661
Telephone: (916) 780-4050
5 Facsimile: (916) 780-9070
6 Attorneys for Defendant MERCEDES-BENZ USA, LLC
7
SUPERIOR COURT OF THE STATE OF CALIFORNIA
8
COUNTY OF PLACER
9
10 STEVEN ACHSTEIN, Case No.: SCV0043589
11 Plaintiff, Action Filed: August 20, 2019
Trial Date: November 30, 2020
12
vs.
MEMORANDUM OF POINTS AND
13 AUTHORITIES IN SUPPORT OF
MERCEDES-BENZ USA, LLC., and DOES 1 DEFENDANT’S EX PARTE
14 through 10 inclusive, APPLICATION FOR AN ORDER TO
CONTINUE TRIAL
15 Defendants.
16
Date: November 30, 2020
17 Time: 8:00 a.m.
Dept: 42
18
19 Defendant MERCEDES-BENZ USA, LLC (“MBUSA”) move for an order to continue the
20 trial date.
21 I.
22 INTRODUCTION
23 By way of this ex parte application, Defendant hereby requests this Court for an Order to
24 continue the trial, which is currently set for November 30, 2020 and for all pre-trial cutoffs to be
25 determined by the new trial date.
26 As detailed further in the Declaration of Nejla Nassirian, filed and served herewith, the
27 parties hereby stipulate to a trial continuance and there is good cause for such a continuance
28 because it will allow the parties to complete all discovery and explore settlement. See California
1
DEFENDANT’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF EX PARTE
1 Rules of Court, Rule 3.1332, subdivisons (c)(6), (d)(9), and (d)(10). All expert depositions still
2 need to be taken, as well as other depositions and a vehicle inspection, all of which the parties have
3 been attempting to meet and confer to schedule. The parties need more time to continue this
4 process.
5 The parties stipulate that all discovery remain open, and all discovery and motion cutoff
6 dates would close per code as determined by the new trial date, and all sides retain the right to
7 make lawful objections to discovery.
8 II.
9 BRIEF STATEMENT OF FACTS
10 This is a lemon law action filed under the Song-Beverly Consumer Warranty Act (Civil
11 Code § 1790 et seq), involving a 2018 Mercedes-Benz C43 vehicle, which MBUSA expressly
12 warranted, and which allegedly was not repaired after a reasonable number of repair attempts.
13 III.
14 LEGAL ARGUMENT
15 The Court, in its discretion, has the authority to continue the trial and may do so by way of
16 ex parte application. California Rule of Court 3.1332(b).
17 Pursuant to subdivison (c)(6) of Rule 3.1332, good cause exists to continue the trial date
18 of November 30, 2020 as it will allow the parties to complete all discovery and further explore
19 settlement. The parties have not yet completed factual discovery and expert discovery in this matter
20 and reasonably anticipate that they will not be able to complete the necessary discovery prior to
21 the trial date. A party’s excused inability to obtain essential testimony, documents, or other
22 material evidence despite diligent efforts constitutes good cause for a continuance of the trial.
23 Other pertinent factors to be considered include, whether there was any previous
24 continuance; the length of the continuance requested; the prejudice the parties or witnesses will
25 suffer as a result of the continuance; whether the interests of justice are best served by a
26 continuance; any other fact or circumstance relevant to the fair determination of the issue. C.R.C.
27 3.1332(d).
28 Additionally, in ruling on an application for a trial continuance, a court must consider all
2
DEFENDANT’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF EX PARTE
1 facts and circumstances that are relevant to the determination, including: (1) the proximity of trial,
2 (2) whether there have been any prior continuances, (3) the prejudice the parties will suffer as a
3 result of the trial continuance, (4) whether all parties have stipulated to the trial continuance, (5)
4 whether the interests of justice are served by the trial continuance and (6) any other fact or
5 circumstance relevant to the determination. (Cal. Rule of Court 3.1332(d).)
6 The trial in this case is currently scheduled for November 30, 2020. There has been no
7 prior continuance. No party will be prejudiced by the continuance as the parties both need to
8 complete expert discovery. Further the interests of justice are best served by a continuance given
9 the ongoing COVID-19 pandemic and restraints imposed on Placer County. (Id. at rule
10 3.1332(d)(2), 3.1332(d)(5) and 3.1332(d)(10).)
11 For the foregoing reasons, Defendant respectfully requests that the Court continue the trial
12 to April 12, 2021 or the next following date convenient for the Court. Defendant further requests
13 that all pretrial dates and discovery deadlines be extended to correspond with the new trial date.
14 IV.
15 NOTICE OF EX PARTE HEARING
16 Plaintiff was given timely notice of this Application no later than 10:00 a.m. the court day
17 before the ex parte appearance, as required by California Rule of Court 3.1 203(a), by way of email
18 to Plaintiff's counsel on Thursday, November 19, 2020 at 9:03 a.m.
19 V.
20 CONCLUSION
21 Based on the foregoing, Defendants hereby submit that good cause exists to grant a
22 continuance of trial and all related dates to April 12, 2021 or a date as soon thereafter as the Court’s
23 calendar permits.
24 DATED: November 25, 2020 UNIVERSAL & SHANNON, LLP
25
26
27
Attorneys for Defendant MERCEDES-BENZ
28 USA, LLC
3
DEFENDANT’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF EX PARTE
PROOF OF SERVICE
1
ACHSTEIN (STEVEN) v. MERCEDES-BENZ USA, LLC, et al.
2
PLACER COUNTY SUPERIOR COURT CASE NO. SCV0043589
3
I am employed in the County of Placer, State of California. I am over the age of 18 and
4 not a party to the within action. My business address is 2240 Douglas Boulevard, Suite 290,
Roseville, California 95661.
5
On the date below, I served the foregoing document described as MEMORANDUM OF
6 POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT’S EX PARTE
APPLICATION FOR AN ORDER TO CONTINUE TRIAL attached hereto on all interested
7 parties in this action by transmitting a true copy thereof by the method indicated below and to the
following addresses:
8
9 Patrea R. Bullock, Esq. Counsel for Plaintiff
LAW OFFICES OF PATREA R. BULLOCK TEL: (916) 878-0161
10 1420 East Roseville Parkway, Ste. 140-335 FAX: (855) 520-1690
Roseville, CA 95661
11
E-SERVE - attorney@californialemonlawexpert.com
12
Rizza Gonzales, Esq. Counsel for Plaintiff
13
CENTURY LAW GROUP LLP TEL: (310) 642-6900
5200 West Century Blvd., Suite 345 FAX: (310) 642-6910
14 Los Angeles, CA 90045
E-SERVE – gonzales@centurylawgroup.com; lear@centurylawgroup.com; wendy@centurylawgroup.com
15
16 (BY OVERNIGHT DELIVERY/COURIER)
I deposited this document in a box or facility regularly maintained by the express service
17
carrier in an envelope or package designated by the express service carrier with delivery
fees provided for. (Courtesy copy emailed to the email address(es) listed above.)
18
(BY ELECTRONIC MAIL (E-MAIL))
19
By electronically mailing an Adobe .pdf version from email address sbeeler@uswlaw.com
via Universal & Shannon, LLP, electronic mail system to the person(s) at the email
20 address(es) as set forth above. [EMAIL ADDRESS FOR ELECTRONIC SERVICE ON
UNIVERSAL & SHANNON IS eservice@uswlaw.com]
21
(STATE) I declare under penalty of perjury under the laws of the State of California that
22 the above is true and correct.
23 Executed on November 25, 2020 at Roseville, California.
24
25 SUSAN BEELER
26
27
28
4
DEFENDANT’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF EX PARTE
Preview
1 JON D. UNIVERSAL, SBN 141255 JAMES P. MAYO, SBN 169897 11/25/2020 2 NEJLA NASSIRIAN, SBN 308730 BRETT H. WANNER, SBN 314025 3 UNIVERSAL & SHANNON, LLP 2240 Douglas Boulevard, Suite 290 4 Roseville, California 95661 Telephone: (916) 780-4050 5 Facsimile: (916) 780-9070 6 Attorneys for Defendant MERCEDES-BENZ USA, LLC 7 SUPERIOR COURT OF THE STATE OF CALIFORNIA 8 COUNTY OF PLACER 9 10 STEVEN ACHSTEIN, Case No.: SCV0043589 11 Plaintiff, Action Filed: August 20, 2019 Trial Date: November 30, 2020 12 vs. MEMORANDUM OF POINTS AND 13 AUTHORITIES IN SUPPORT OF MERCEDES-BENZ USA, LLC., and DOES 1 DEFENDANT’S EX PARTE 14 through 10 inclusive, APPLICATION FOR AN ORDER TO CONTINUE TRIAL 15 Defendants. 16 Date: November 30, 2020 17 Time: 8:00 a.m. Dept: 42 18 19 Defendant MERCEDES-BENZ USA, LLC (“MBUSA”) move for an order to continue the 20 trial date. 21 I. 22 INTRODUCTION 23 By way of this ex parte application, Defendant hereby requests this Court for an Order to 24 continue the trial, which is currently set for November 30, 2020 and for all pre-trial cutoffs to be 25 determined by the new trial date. 26 As detailed further in the Declaration of Nejla Nassirian, filed and served herewith, the 27 parties hereby stipulate to a trial continuance and there is good cause for such a continuance 28 because it will allow the parties to complete all discovery and explore settlement. See California 1 DEFENDANT’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF EX PARTE 1 Rules of Court, Rule 3.1332, subdivisons (c)(6), (d)(9), and (d)(10). All expert depositions still 2 need to be taken, as well as other depositions and a vehicle inspection, all of which the parties have 3 been attempting to meet and confer to schedule. The parties need more time to continue this 4 process. 5 The parties stipulate that all discovery remain open, and all discovery and motion cutoff 6 dates would close per code as determined by the new trial date, and all sides retain the right to 7 make lawful objections to discovery. 8 II. 9 BRIEF STATEMENT OF FACTS 10 This is a lemon law action filed under the Song-Beverly Consumer Warranty Act (Civil 11 Code § 1790 et seq), involving a 2018 Mercedes-Benz C43 vehicle, which MBUSA expressly 12 warranted, and which allegedly was not repaired after a reasonable number of repair attempts. 13 III. 14 LEGAL ARGUMENT 15 The Court, in its discretion, has the authority to continue the trial and may do so by way of 16 ex parte application. California Rule of Court 3.1332(b). 17 Pursuant to subdivison (c)(6) of Rule 3.1332, good cause exists to continue the trial date 18 of November 30, 2020 as it will allow the parties to complete all discovery and further explore 19 settlement. The parties have not yet completed factual discovery and expert discovery in this matter 20 and reasonably anticipate that they will not be able to complete the necessary discovery prior to 21 the trial date. A party’s excused inability to obtain essential testimony, documents, or other 22 material evidence despite diligent efforts constitutes good cause for a continuance of the trial. 23 Other pertinent factors to be considered include, whether there was any previous 24 continuance; the length of the continuance requested; the prejudice the parties or witnesses will 25 suffer as a result of the continuance; whether the interests of justice are best served by a 26 continuance; any other fact or circumstance relevant to the fair determination of the issue. C.R.C. 27 3.1332(d). 28 Additionally, in ruling on an application for a trial continuance, a court must consider all 2 DEFENDANT’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF EX PARTE 1 facts and circumstances that are relevant to the determination, including: (1) the proximity of trial, 2 (2) whether there have been any prior continuances, (3) the prejudice the parties will suffer as a 3 result of the trial continuance, (4) whether all parties have stipulated to the trial continuance, (5) 4 whether the interests of justice are served by the trial continuance and (6) any other fact or 5 circumstance relevant to the determination. (Cal. Rule of Court 3.1332(d).) 6 The trial in this case is currently scheduled for November 30, 2020. There has been no 7 prior continuance. No party will be prejudiced by the continuance as the parties both need to 8 complete expert discovery. Further the interests of justice are best served by a continuance given 9 the ongoing COVID-19 pandemic and restraints imposed on Placer County. (Id. at rule 10 3.1332(d)(2), 3.1332(d)(5) and 3.1332(d)(10).) 11 For the foregoing reasons, Defendant respectfully requests that the Court continue the trial 12 to April 12, 2021 or the next following date convenient for the Court. Defendant further requests 13 that all pretrial dates and discovery deadlines be extended to correspond with the new trial date. 14 IV. 15 NOTICE OF EX PARTE HEARING 16 Plaintiff was given timely notice of this Application no later than 10:00 a.m. the court day 17 before the ex parte appearance, as required by California Rule of Court 3.1 203(a), by way of email 18 to Plaintiff's counsel on Thursday, November 19, 2020 at 9:03 a.m. 19 V. 20 CONCLUSION 21 Based on the foregoing, Defendants hereby submit that good cause exists to grant a 22 continuance of trial and all related dates to April 12, 2021 or a date as soon thereafter as the Court’s 23 calendar permits. 24 DATED: November 25, 2020 UNIVERSAL & SHANNON, LLP 25 26 27 Attorneys for Defendant MERCEDES-BENZ 28 USA, LLC 3 DEFENDANT’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF EX PARTE PROOF OF SERVICE 1 ACHSTEIN (STEVEN) v. MERCEDES-BENZ USA, LLC, et al. 2 PLACER COUNTY SUPERIOR COURT CASE NO. SCV0043589 3 I am employed in the County of Placer, State of California. I am over the age of 18 and 4 not a party to the within action. My business address is 2240 Douglas Boulevard, Suite 290, Roseville, California 95661. 5 On the date below, I served the foregoing document described as MEMORANDUM OF 6 POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT’S EX PARTE APPLICATION FOR AN ORDER TO CONTINUE TRIAL attached hereto on all interested 7 parties in this action by transmitting a true copy thereof by the method indicated below and to the following addresses: 8 9 Patrea R. Bullock, Esq. Counsel for Plaintiff LAW OFFICES OF PATREA R. BULLOCK TEL: (916) 878-0161 10 1420 East Roseville Parkway, Ste. 140-335 FAX: (855) 520-1690 Roseville, CA 95661 11 E-SERVE - attorney@californialemonlawexpert.com 12 Rizza Gonzales, Esq. Counsel for Plaintiff 13 CENTURY LAW GROUP LLP TEL: (310) 642-6900 5200 West Century Blvd., Suite 345 FAX: (310) 642-6910 14 Los Angeles, CA 90045 E-SERVE – gonzales@centurylawgroup.com; lear@centurylawgroup.com; wendy@centurylawgroup.com 15 16 (BY OVERNIGHT DELIVERY/COURIER) I deposited this document in a box or facility regularly maintained by the express service 17 carrier in an envelope or package designated by the express service carrier with delivery fees provided for. (Courtesy copy emailed to the email address(es) listed above.) 18 (BY ELECTRONIC MAIL (E-MAIL)) 19 By electronically mailing an Adobe .pdf version from email address sbeeler@uswlaw.com via Universal & Shannon, LLP, electronic mail system to the person(s) at the email 20 address(es) as set forth above. [EMAIL ADDRESS FOR ELECTRONIC SERVICE ON UNIVERSAL & SHANNON IS eservice@uswlaw.com] 21 (STATE) I declare under penalty of perjury under the laws of the State of California that 22 the above is true and correct. 23 Executed on November 25, 2020 at Roseville, California. 24 25 SUSAN BEELER 26 27 28 4 DEFENDANT’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF EX PARTE