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CENTURY LAW GROUP LLP
FILED
Superior Court of California
Edward O. Lear (SBN 132699) County of Placer
Rizza Gonzales (SBN 268118)
5200 W. Century Boulevard, Suite 345
NOV 19 2020
Los Angeles, California 90045 Jake Chatters
Lo
Executive Officer & Clerk
Ph.: (310) 642-6900 By: K. Pearson, Depyty
Fax: (310) 642-6910
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Attorneys for Plaintiff,
DR
Steven Achstein
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SUPERIOR COURT FOR THE STATE OF CALIFORNIA
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IN AND FOR THE COUNTY OF PLACER
by kay
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Case No.: SCV0043589
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STEVEN ACHSTEIN;
PLAINTIFF STEVEN ACHSTEIN’S
12 OPPOSITION TO DEFENDANT
Plaintiff,
13 MERCEDES-BENZ USA, LLC’S EX
v. PARTE APPLICATION TO CONTINUE
14 THE TRIAL
MERCEDES-BENZ USA, LLC; et al.
15 Date: November 20, 2020
Defendants.
Time: 8:00 a.m.
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Location: Dept. 42
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Date Filed: August 20, 2019
18 Trial Date: November 30, 2020
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PLAINTIFF’S EX PARTE APPLICATION TO EXCLUDE THE EXPERT OPINIONS OF
DEFENDANT MBUSA’S EXPERT WITNESSES OR, IN THE ALTERNATIVE, TO COMPEL
THEIR DEPOSITIONS; OR TO SHORTEN TIME TO HEAR PLAINTIFF’S MOTION
om om
MEMORANDUM OF POINTS AND AUTHORITIES
I. INTRODUCTION
NO
Plaintiff Steven Achstein (“Plaintiff’ and/or “Mr. Achstein’”) filed a Song-Beverly Act
WY
claim against Mercedes-Benz US, LLC (“Defendant” and/or “MBUSA”) alleging that the new
Re
vehicle he leased with MBUSA had defects that substantially impaired itsuse, value, and safety
WN
on August 20, 2019. Mr. Achstein brought his vehicle into Mercedes-Benz of Rocklin (“MB
DB
Rocklin”) on multiple occasions to have the vehicle repaired under the warranty. The matter is
YN
currently set for trial on November 30, 2020.
Oo
SoS
Firstly, and most importantly, Defendant misrepresents Plaintiff's position with regards to
the continuance of a trialin this matter. Plaintiff does not agree to the continuance of the trialdate.
OC
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Nor does Plaintiff agree to allow all discovery and motion cut-off dates to be extended with a
KF
Re
NY
continued trial date. Plaintiff was forced to bring two ex parte applications before this Court in
Re
WY
order to obtain discovery to which itwas entitled including the dealership personnel depositions
fF
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and expert depositions. The dealership personnel depositions are scheduled for November 20,
Wn
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2020, and November 23, 2020, following the Court granting Plaintiff's motion to compel.
DB
Defendant has only provided dates for the depositions of its experts at a date beyond November
RR
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30, 2020.
OOH
In terms of pending Defendant discovery, itonly has to take the continued deposition of
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Plaintiff Steven Achstein with regards to videos produced by Mr. Achstein after his October 6,
TD
NO
2020, deposition. Defendant’s requests via email for a date for Mrs. Achstein’s deposition and for
NO
KF
Plaintiffs expert witness deposition were made after fact and expert discovery had been cut-off,
NY
KN
respectively, as set forth more fully below.
WwW
KN
Defendant has repeatedly ignored Plaintiff's meet and confer efforts to obtain discovery in
BR
KN
this matter. Defendant failed to timely serve a subpoena for Mrs. Achstein’s deposition and also
WN
HN
failed to timely serve a notice of deposition for Plaintiff's expert’s deposition. It seeks to cure
DO
NO
these mistakes by seeking a continuance of the trial and the corresponding discovery cut-off dates,
NO
oN
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PLAINTIFF’S OPPOSITION TO DEFENDANT MBUSA’S EX PARTE APPLICATION TO
CONTINUE TRIAL
while misrepresenting Plaintiff's agreement to a continuance instead of seeking relief through the
appropriate avenues.
WY
WwW
Plaintiff understands and appreciates that the Court may continue the trial due to the
ongoing Covid-19 pandemic and the Court’s November 17, 2020, order limiting civil jury trials to
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only those critically necessary civil trials. However, the Defendant has presented no good cause
OmHN DN ON
herein for continuing the November 30, trial date. It has especially not provided the Court with
any good cause to continue the discovery cut-off dates as requested by Defendant without
Defendant applying to this Court for the appropriate relief.
Oo
Il. STATEMENT OF FACTS
CoCo
Plaintiff filed his complaint against Defendant MBUSA on August 20, 2019, alleging
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violations of the Song-Beverly Act. Plaintiff leased a new 2018 C43 W4 on February 27, 2018.
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Since his purchase of the vehicle, Plaintiff has brought the vehicle in for repairs over 10 times.
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Plaintiff brought the vehicle in to Mercedes-Benz of Rocklin (“MB Rocklin”) for each of these
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attempts to repair the vehicle. (Decl. Gonzales, 4 3.)
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Plaintiff was forced to filetwo ex parte applications in order to obtain discovery it was
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due after serving duly noticed subpoenas for Mercedes-Benz of Rocklin’s dealership personnel
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and notices of deposition for MBUSA’s expert witnesses. The depositions for dealership
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personnel are scheduled for November 20, 2020, and November 23, 2020. Defendant has only
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provided dates beyond the November 30, 2020, trialdate for one of itsexpert witnesses.
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Plaintiff agreed to provide Mr. Achstein for further deposition to discuss videos and
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documents produced after his deposition. This is the only discovery which is outstanding for
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Defendant.
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At Plaintiff's October 6, 2020, deposition, Defendant requested, and Plaintiff agreed, to
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accept service of a subpoena for Plaintiff's wife, Jessica Achstein. No subpoena was served on
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Plaintiff's counsel. On November 6, 2020, Defendant’s counsel requested a date for Mrs.
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Achstein’s deposition. Plaintiff advised that itwas not entitled to such deposition as ithad not
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subpoenaed Mrs. Achstein before fact discovery cut-off.
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i.
PLAINTIFF’S OPPOSITION TO DEFENDANT MBUSA’S EX PARTE APPLICATION TO
CONTINUE TRIAL
Defendant requested
UDWOUNa date for Plaintiff's expert witness on November 19, 2020.
However, Defendant has never served a notice of deposition for Plaintiff's expert.
NK
il. ARGUMENT
RO
Defendant has not filed this motion as soon as reasonably practical once the necessity for
CoCoClCOClUl
the continuance isdiscovered. (CRC 3.1332(b)). Defendant has not made an affirmative showing
Di
that it filed this motion as reasonably as practical. At the November 6, 2020, hearing on Plaintiff's
motion to compel the dealership personnel depositions, Defendant’s counsel indicated at that point
that it may need to file a request a continuance with the Court as the Court indicated that it could
not continue the trial date without a motion before it. Defendant failed to make a request for
eS
continuance until November 19, 2020. Additionally, Defendant was aware that discovery cut-off
eS
was October 30, 2020, and expert discovery cut-off was November 15, 2020. It did nothing prior
Ee
NY
to those dates to obtain the discovery it needs for this case including the deposition of Mrs.
Fe
WW
Achstein and Plaintiff's expert deposition. To the extent that Defendant needed relief, it should
Fe
Fe
have brought this motion, or other appropriate motions, at an earlier date and not have waited until
KF
DH
the eve of trial.
Fe
Defendant has not set forth any good cause to continue the trialdate. C.R.C. 3.1332(c) sets
Fe
HN
forth that continuances of trial are disfavored, but indicates facts and circumstances which may be
KF
considered good cause. Defendant’s contention that discovery cannot be completed due to a
OU
YH
party’s excused inability to obtain essential testimony, etc. pursuant to C.R.C. 3.1332(c)(6) isnot
TD
NON
applicable as Defendant has no outstanding discovery that cannot be completed before the trial
KF
YN
date. As set forth above, Defendant did not subpoena Mrs. Achstein and did not notice the
NY
N
depositions of Plaintiff's expert. To the extent that they wish to do so, this inability to obtain this
WwW
YN
excused and their efforts have not been diligent. It isimproper for them
BR
essential testimony isnot
NH
it has failed to properly
MN
to apply for a continuance in order to surreptitiously obtain the discovery
NH
OW
NHN
obtain.
NO
oN
wo
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PLAINTIFF’S OPPOSITION TO DEFENDANT MBUSA’S EX PARTE APPLICATION TO
CONTINUE TRIAL
NH As to the other factors to be considered, Plaintiff will be prejudiced if this matter does not
proceed on November 30, 2020, as he will have to continue to drive a lemon vehicle while waiting
for his day in Court.
Rea
IV. CONCLUSION
For the foregoing reasons, Plaintiff respectfully requests that the Court deny Defendant's
DN
motion. To the extent that the Court is inclined to grant a continuance based upon the pandemic,
OC
OOClDWOlUCUNSN
Plaintiff respectfully requests that the Court deny Defendant’s requests to extend the discovery
cut-offs except for the dealership depositions, Defendant’s experts’ depositions, and Mr.
Achstein’s deposition for the reasons set forth above.
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Dated: November 17, 2020 CENTURY LAW GROUP LLP
NYY
Pr
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PFO
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RIZZA GONZALES
KF
Attorneys for Plaintiff
DN
Steven Achstein
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PLAINTIFF’S OPPOSITION TO DEFENDANT MBUSA’S EX PARTE APPLICATION TO
CONTINUE TRIAL
DECLARATION OF RIZZA GONZALES
I, Rizza Gonzales, declare under penalty of perjury the following:
1. I am an attorney at law, duly licensed to practice before all courts in the State of
2
California. I have personal knowledge of all facts contained in this declaration and, if called
upon to testify, Icould and would competently testify to the truth of each statement contained
ON
herein.
DN
2. I am a partner of Century Law Group LLP (“CLG”) in Los Angeles, California.
NN
In the instant action, I am associated counsel with the Law Offices of Patrea R. Bullock. I
OH
represent Plaintiff Steven Achstein in the above-named matter.
Co
10 3. The factual matters asserted in the above memorandum of points and authorities
11 are true and correct.
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13 Executed this 17th day of November 2020, at Los Angeles, California.
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66 E—
Rizza Gonzales
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PLAINTIFF’S OPPOSITION TO DEFENDANT MBUSA’S EX PARTE APPLICATION TO
CONTINUE TRIAL
PROOF OF SERVICE
(1013a, 2015.5 C.C.P.)
Re: Steven Achstein v. Mercedes -Benz USA., LLC; et al.
Case No.: SCV0043589
I, Kathy Ferrera, am employed in the County of Los Angeles, State of California. I am
over the age of 18 and not a party to the within action; my business address is 5200 W. Century
Blvd Suite 345 Los Angeles, CA 90045
On November 19, 2020, Iserved the following document(s) described as:
PLAINTIFF STEVEN ACHSTEIN’S OPPOSITION TO DEFENDANT MERCEDES-
BENZ USA, LLC’S EX PARTE APPLICATION TO CONTINUE THE TRIAL
on the interested parties in this action as follows:
10
JON D. UNIVERSAL
11 NEJLA NASSIRIAN
UNIVERSAL & SHANNON, LLP
12 2240 Douglas Boulevard, Suite 290
Roseville, California 95661
13
eservice(@uswlaw.com
14 juniversal@uswlaw.com
L5
16
[ ](BY MAIL)
On said date I placed such envelope with postage thereon fully prepaid in the United
17 States mail at Los Angeles, California.
18
[ ] lam "readily familiar" with the firm's practice of collection and processing correspondence
19
for mailing. Itis deposited with the U.S. postal service on that same day in the ordinary course
of business. I am aware that on motion of party served, service is presumed invalid if postal
20 cancellation date or postage meter date ismore than | day after date of deposit for mailing in
affidavit.
21
22 [X] (BY E-MAIL)
On said date I e-mailed the above-referenced document to the attention of: Jon Universal, and
23 eservice@uswlaw.com.
24
I declare under penalty of perjury that the above is true and correct and that this
25
declaration/certificate is executed at Los Angeles, California on November 19, 2020
26 Aathy. Fuunwue
27 Kathy Ferrera
28
Preview
CENTURY LAW GROUP LLP FILED Superior Court of California Edward O. Lear (SBN 132699) County of Placer Rizza Gonzales (SBN 268118) 5200 W. Century Boulevard, Suite 345 NOV 19 2020 Los Angeles, California 90045 Jake Chatters Lo Executive Officer & Clerk Ph.: (310) 642-6900 By: K. Pearson, Depyty Fax: (310) 642-6910 Nn Attorneys for Plaintiff, DR Steven Achstein NN SUPERIOR COURT FOR THE STATE OF CALIFORNIA ma IN AND FOR THE COUNTY OF PLACER by kay Co 10 Case No.: SCV0043589 11 STEVEN ACHSTEIN; PLAINTIFF STEVEN ACHSTEIN’S 12 OPPOSITION TO DEFENDANT Plaintiff, 13 MERCEDES-BENZ USA, LLC’S EX v. PARTE APPLICATION TO CONTINUE 14 THE TRIAL MERCEDES-BENZ USA, LLC; et al. 15 Date: November 20, 2020 Defendants. Time: 8:00 a.m. 16 Location: Dept. 42 17 Date Filed: August 20, 2019 18 Trial Date: November 30, 2020 19 20 21 22 23 24 2 26 27 28 PLAINTIFF’S EX PARTE APPLICATION TO EXCLUDE THE EXPERT OPINIONS OF DEFENDANT MBUSA’S EXPERT WITNESSES OR, IN THE ALTERNATIVE, TO COMPEL THEIR DEPOSITIONS; OR TO SHORTEN TIME TO HEAR PLAINTIFF’S MOTION om om MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION NO Plaintiff Steven Achstein (“Plaintiff’ and/or “Mr. Achstein’”) filed a Song-Beverly Act WY claim against Mercedes-Benz US, LLC (“Defendant” and/or “MBUSA”) alleging that the new Re vehicle he leased with MBUSA had defects that substantially impaired itsuse, value, and safety WN on August 20, 2019. Mr. Achstein brought his vehicle into Mercedes-Benz of Rocklin (“MB DB Rocklin”) on multiple occasions to have the vehicle repaired under the warranty. The matter is YN currently set for trial on November 30, 2020. Oo SoS Firstly, and most importantly, Defendant misrepresents Plaintiff's position with regards to the continuance of a trialin this matter. Plaintiff does not agree to the continuance of the trialdate. OC Re Nor does Plaintiff agree to allow all discovery and motion cut-off dates to be extended with a KF Re NY continued trial date. Plaintiff was forced to bring two ex parte applications before this Court in Re WY order to obtain discovery to which itwas entitled including the dealership personnel depositions fF Re and expert depositions. The dealership personnel depositions are scheduled for November 20, Wn Re 2020, and November 23, 2020, following the Court granting Plaintiff's motion to compel. DB Defendant has only provided dates for the depositions of its experts at a date beyond November RR NN 30, 2020. OOH In terms of pending Defendant discovery, itonly has to take the continued deposition of rm Plaintiff Steven Achstein with regards to videos produced by Mr. Achstein after his October 6, TD NO 2020, deposition. Defendant’s requests via email for a date for Mrs. Achstein’s deposition and for NO KF Plaintiffs expert witness deposition were made after fact and expert discovery had been cut-off, NY KN respectively, as set forth more fully below. WwW KN Defendant has repeatedly ignored Plaintiff's meet and confer efforts to obtain discovery in BR KN this matter. Defendant failed to timely serve a subpoena for Mrs. Achstein’s deposition and also WN HN failed to timely serve a notice of deposition for Plaintiff's expert’s deposition. It seeks to cure DO NO these mistakes by seeking a continuance of the trial and the corresponding discovery cut-off dates, NO oN NN -2- PLAINTIFF’S OPPOSITION TO DEFENDANT MBUSA’S EX PARTE APPLICATION TO CONTINUE TRIAL while misrepresenting Plaintiff's agreement to a continuance instead of seeking relief through the appropriate avenues. WY WwW Plaintiff understands and appreciates that the Court may continue the trial due to the ongoing Covid-19 pandemic and the Court’s November 17, 2020, order limiting civil jury trials to - only those critically necessary civil trials. However, the Defendant has presented no good cause OmHN DN ON herein for continuing the November 30, trial date. It has especially not provided the Court with any good cause to continue the discovery cut-off dates as requested by Defendant without Defendant applying to this Court for the appropriate relief. Oo Il. STATEMENT OF FACTS CoCo Plaintiff filed his complaint against Defendant MBUSA on August 20, 2019, alleging 11 violations of the Song-Beverly Act. Plaintiff leased a new 2018 C43 W4 on February 27, 2018. 12 Since his purchase of the vehicle, Plaintiff has brought the vehicle in for repairs over 10 times. 13 Plaintiff brought the vehicle in to Mercedes-Benz of Rocklin (“MB Rocklin”) for each of these 14 attempts to repair the vehicle. (Decl. Gonzales, 4 3.) 15 Plaintiff was forced to filetwo ex parte applications in order to obtain discovery it was 16 due after serving duly noticed subpoenas for Mercedes-Benz of Rocklin’s dealership personnel 17 and notices of deposition for MBUSA’s expert witnesses. The depositions for dealership 18 personnel are scheduled for November 20, 2020, and November 23, 2020. Defendant has only 19 provided dates beyond the November 30, 2020, trialdate for one of itsexpert witnesses. 20 Plaintiff agreed to provide Mr. Achstein for further deposition to discuss videos and 21 documents produced after his deposition. This is the only discovery which is outstanding for 22 Defendant. 23 At Plaintiff's October 6, 2020, deposition, Defendant requested, and Plaintiff agreed, to 24 accept service of a subpoena for Plaintiff's wife, Jessica Achstein. No subpoena was served on 25 Plaintiff's counsel. On November 6, 2020, Defendant’s counsel requested a date for Mrs. 26 Achstein’s deposition. Plaintiff advised that itwas not entitled to such deposition as ithad not 20 subpoenaed Mrs. Achstein before fact discovery cut-off. 28 i. PLAINTIFF’S OPPOSITION TO DEFENDANT MBUSA’S EX PARTE APPLICATION TO CONTINUE TRIAL Defendant requested UDWOUNa date for Plaintiff's expert witness on November 19, 2020. However, Defendant has never served a notice of deposition for Plaintiff's expert. NK il. ARGUMENT RO Defendant has not filed this motion as soon as reasonably practical once the necessity for CoCoClCOClUl the continuance isdiscovered. (CRC 3.1332(b)). Defendant has not made an affirmative showing Di that it filed this motion as reasonably as practical. At the November 6, 2020, hearing on Plaintiff's motion to compel the dealership personnel depositions, Defendant’s counsel indicated at that point that it may need to file a request a continuance with the Court as the Court indicated that it could not continue the trial date without a motion before it. Defendant failed to make a request for eS continuance until November 19, 2020. Additionally, Defendant was aware that discovery cut-off eS was October 30, 2020, and expert discovery cut-off was November 15, 2020. It did nothing prior Ee NY to those dates to obtain the discovery it needs for this case including the deposition of Mrs. Fe WW Achstein and Plaintiff's expert deposition. To the extent that Defendant needed relief, it should Fe Fe have brought this motion, or other appropriate motions, at an earlier date and not have waited until KF DH the eve of trial. Fe Defendant has not set forth any good cause to continue the trialdate. C.R.C. 3.1332(c) sets Fe HN forth that continuances of trial are disfavored, but indicates facts and circumstances which may be KF considered good cause. Defendant’s contention that discovery cannot be completed due to a OU YH party’s excused inability to obtain essential testimony, etc. pursuant to C.R.C. 3.1332(c)(6) isnot TD NON applicable as Defendant has no outstanding discovery that cannot be completed before the trial KF YN date. As set forth above, Defendant did not subpoena Mrs. Achstein and did not notice the NY N depositions of Plaintiff's expert. To the extent that they wish to do so, this inability to obtain this WwW YN excused and their efforts have not been diligent. It isimproper for them BR essential testimony isnot NH it has failed to properly MN to apply for a continuance in order to surreptitiously obtain the discovery NH OW NHN obtain. NO oN wo -4- PLAINTIFF’S OPPOSITION TO DEFENDANT MBUSA’S EX PARTE APPLICATION TO CONTINUE TRIAL NH As to the other factors to be considered, Plaintiff will be prejudiced if this matter does not proceed on November 30, 2020, as he will have to continue to drive a lemon vehicle while waiting for his day in Court. Rea IV. CONCLUSION For the foregoing reasons, Plaintiff respectfully requests that the Court deny Defendant's DN motion. To the extent that the Court is inclined to grant a continuance based upon the pandemic, OC OOClDWOlUCUNSN Plaintiff respectfully requests that the Court deny Defendant’s requests to extend the discovery cut-offs except for the dealership depositions, Defendant’s experts’ depositions, and Mr. Achstein’s deposition for the reasons set forth above. ol lhl Eh Dated: November 17, 2020 CENTURY LAW GROUP LLP NYY Pr WY Pr PFO ee RIZZA GONZALES KF Attorneys for Plaintiff DN Steven Achstein YF KF HN HF ODO YF DTD NN KFK& NV NY NY WwW NY ek NY WN NO DO NO NO oN NO -5- PLAINTIFF’S OPPOSITION TO DEFENDANT MBUSA’S EX PARTE APPLICATION TO CONTINUE TRIAL DECLARATION OF RIZZA GONZALES I, Rizza Gonzales, declare under penalty of perjury the following: 1. I am an attorney at law, duly licensed to practice before all courts in the State of 2 California. I have personal knowledge of all facts contained in this declaration and, if called upon to testify, Icould and would competently testify to the truth of each statement contained ON herein. DN 2. I am a partner of Century Law Group LLP (“CLG”) in Los Angeles, California. NN In the instant action, I am associated counsel with the Law Offices of Patrea R. Bullock. I OH represent Plaintiff Steven Achstein in the above-named matter. Co 10 3. The factual matters asserted in the above memorandum of points and authorities 11 are true and correct. 12 13 Executed this 17th day of November 2020, at Los Angeles, California. 14 15 16 66 E— Rizza Gonzales 17 18 19 20 21 22 23 24 25 26 27 28 6 PLAINTIFF’S OPPOSITION TO DEFENDANT MBUSA’S EX PARTE APPLICATION TO CONTINUE TRIAL PROOF OF SERVICE (1013a, 2015.5 C.C.P.) Re: Steven Achstein v. Mercedes -Benz USA., LLC; et al. Case No.: SCV0043589 I, Kathy Ferrera, am employed in the County of Los Angeles, State of California. I am over the age of 18 and not a party to the within action; my business address is 5200 W. Century Blvd Suite 345 Los Angeles, CA 90045 On November 19, 2020, Iserved the following document(s) described as: PLAINTIFF STEVEN ACHSTEIN’S OPPOSITION TO DEFENDANT MERCEDES- BENZ USA, LLC’S EX PARTE APPLICATION TO CONTINUE THE TRIAL on the interested parties in this action as follows: 10 JON D. UNIVERSAL 11 NEJLA NASSIRIAN UNIVERSAL & SHANNON, LLP 12 2240 Douglas Boulevard, Suite 290 Roseville, California 95661 13 eservice(@uswlaw.com 14 juniversal@uswlaw.com L5 16 [ ](BY MAIL) On said date I placed such envelope with postage thereon fully prepaid in the United 17 States mail at Los Angeles, California. 18 [ ] lam "readily familiar" with the firm's practice of collection and processing correspondence 19 for mailing. Itis deposited with the U.S. postal service on that same day in the ordinary course of business. I am aware that on motion of party served, service is presumed invalid if postal 20 cancellation date or postage meter date ismore than | day after date of deposit for mailing in affidavit. 21 22 [X] (BY E-MAIL) On said date I e-mailed the above-referenced document to the attention of: Jon Universal, and 23 eservice@uswlaw.com. 24 I declare under penalty of perjury that the above is true and correct and that this 25 declaration/certificate is executed at Los Angeles, California on November 19, 2020 26 Aathy. Fuunwue 27 Kathy Ferrera 28