Preview
ELECTRONICALLY FILED
Superior Court of California,
County of Placer
11/23/2020
By: Laurel Sanders, Deputy Clerk
MARY K. TALMACHOFF, STATE BAR NO. 25797
BATES WINTER & ASSOCIATES LLP
925 Highland Pointe Drive, Suite 380
Roseville, CA 95678
Telephone: (916) 789-7080
Facsimile: (916) 789-7090
Attomeys for Defendant
JOHNNY SALAZAR
SUPERIOR COURT OF CALIFORNIA
COUNTY OF PLACER
10
11 CHADWICK M. WHITWORTH, Case No. S-CV-0042913
12 DEFENDANT JOHNNY SALAZAR’S
Plaintiff,
MEMORANDUM OF POINTS AND
13 AUTHORITIES IN SUPPORT OF
Vv. MOTION TO CONTINUE TRIAL DATE,
14 MANDATORY SETTLEMENT
15 JOHNNY SALAZAR; VINTAGE CONFERENCE, AND ALL RELATED
TRANSPORT OWNERS; and DOES 1 to 250,) DATES
16 inclusive,
Date: January 7, 2021
17 Time: 8:30 am.
Defendants. Dept.: 42
18
Assi ed to:
19 Dept. 40 - Case Management
20 Complaint Filed: May 2, 2019
Trial Date: February 22, 2021
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23
24 INTRODUCTION
25 Defendant JOHNNY SALAZAR moves this Court, pursuant to Code of Civil Procedure
26 sections 1005, subdivision (b) and 2024.050, California Rules of Court, Rule 3.1332, and Local
27 Rule 20.1.12, for a continuance of the currently set trial date of February 22, 2021, and related
28 dates, including the Mandatory Settlement Conference scheduled for January 29, 2021, and Civil
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DEFENDANT SALAZAR’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION
TO CONTINUE TRIAL DATE, MANDATORY SETTLEMENT CONFERENCE, AND RELATED DATES
Trial Conference scheduled for February 5, 2021, and all deadlines to run commensurate with
the new trial date.
Il.
FACTUAL BACKGROUND
This lawsuit arises out of an incident that took place at Lake Havasu, Arizona. Defendant
JOHNNY SALAZAR is the president of an incorporated V olkswagen enthusiast club located in
southern California, called Vintage Transport Owners. One of the club’s activities is attendance
at a yearly gathering of Volkswagen enthusiasts for a car show and camping at Lake Havasu,
Arizona. Mr. SALAZAR and his family caravanned from southern California to Lake Havasu
10 on January 13, 2019, with approximately 15 of club members.
11 On January 14, 2019, Mr. SALAZAR met Plaintiff, CHADWICK M. WHITWORTH. It
12 is alleged that Plaintiff was drinking heavily throughout the day and was acting inappropriately
13 and offering alcoholic beverages to underaged females, including Mr. SALAZAR’s daughter,
14 following which Mr. SALAZAR confronted Plaintiff. A physical altercation ensued involving
15 other attendees at the event and law enforcement was called. Mr. SALAZAR denies assaulting
16 Plaintiff at any time at the event.
17 Plaintiff was eventually criminally charged and tried on charges of child abuse and
18 aggravated assault against a minor, but he was acquitted. After the trial, Plaintiff filed the instant
19 lawsuit against Mr. SALAZAR and Vintage Transport Owners, alleging assault, battery,
20 intentional infliction of emotional distress, defamation, and premises liability.
21 Plaintiffs Complaint was initially filed on May 2, 2019. Plaintiffs First Amended
22 Complaint was filed on September 20, 2020. Defendant filed an Answer to the First Amended
23 Complaint on October 22, 2019. (Declaration of Mary K. Talmachoff (hereinafter “Talmachoff
24 Decl”) 95].
25 A Case Management Conference on October 6, 2020
26 On July 28, 2020, the Court served a Minute Order scheduling a Case Management
27 Conference in this matter on October 6, 2020. (Talmachoff Decl § 6). On September 28, 2020,
28 the Court issued a tentative ruling in advance of the Case Management Conference stating that
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DEFENDANT SALAZAR’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION
TO CONTINUE TRIAL DATE, MANDATORY SETTLEMENT CONFERENCE, AND RELATED DATES
appearance was required by telephonic appearance only. (Talmachoff Decl 7) On October 6,
2020, Defense counsel appeared through V Court for a Case Management Conference at the
scheduled start time of 10:00 am. pursuant to the Minute Order issued on July 28, 2020.
(Talmachoff Decl 8) Defense counsel was present for the entire docket, but this matter was not
called by the Court. (Ibid) At the conclusion of the calendar, the Court Clerk advised that the
subject lawsuit was not on the docket. (Id.) Immediately thereafter, Defense counsel checked the
Placer County Superior Court website and learned that the 10:00 a.m. hearing was vacated and
advanced to 8:30 a.m. (Id) Defense counsel’s office contacted the Court Clerk to investigate the
matter and received confirmation from the Clerk that no notice was served by the Court and V
10 Court did not provide notice of the time change. (Talmachoff Decl 49.) The Clerk further
11 advised that the Court scheduled a Mandatory Settlement Conference on January 29, 2021, Civil
12 Trial Conference on February 5, 2021, and Trial on February 22, 2021, despite no appearance
13 from Defense counsel. (Ibid.).
14 On November 5, 2020, Defense counsel wrote to Plaintiffs counsel in a good faith
15 effort to meet and confer regarding scheduling Plaintiffs deposition. A joint stipulation to
16 continue the trial date in the above-referenced matter and requested a response no later than
17 November 12, 2020. To date, plaintiff's counsel has not provided any response to Defense
18 counsel’s meet and confer efforts. (Talmachoff Decl § 10)
19 Defense counsel is unavailable for trial in this matter as currently set on February 22,
20 2021, due to another matter scheduled for trial on the same date. (Talmachoff Decl §11) The
21 other matter set for trial is in Yolo County Superior Court, Department 9, titled Teresa
22 Reynolds v. Nicholas Behrens, et al., Case No. CV-2019-221, filed on January 30, 2019. (Ibid.)
23 There have been no previous requests for continuance by either party in this
24 case. (Talmachoff Decl { 12).
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DEFENDANT SALAZAR’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION
27 TO CONTINUE TRIAL DATE, MANDATORY SETTLEMENT CONFERENCE, AND RELATED DATES
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B. Timeline of Discovery
Defendant served an initial set of written discovery on Plaintiff on October 31, 2019. On
January 23, 2020, after numerous good faith attempts to meet and confer regarding Plaintiff's
incomplete responses, Defendant filed a Motion to Compel Plaintiffs discovery responses to
Form Interrogatories, Set One, Special Interrogatories, Set One, Request for Admissions, Set
One, and Request for Production of Documents, Set One, which was granted on February 21,
2020. (Talmachoff Decl 13) Plaintiff ultimately served incomplete discovery responses by
email on February 20, 2020. (Ibid.).
After further attempts to meet and confer regarding Plaintiff's deficient discovery
10 responses failed, on August 7, 2020, Defendant filed a Motion to Compel plaintiff's further
11 discovery responses to Form Interrogatories, Set One, Special Interrogatories, Set One, Request
12 for Admissions, Set One, and Request for Production of Documents, Set One. (Talmachoff
13 Decl § 14) On August 21, 2020, the Court, again, granted Defendant’s Motion to Compel
14 Plaintiff's further discovery responses which were ordered by September 11, 2020. (Ibid)
15 Plaintiff only recently provided further responses on October 14 and 15, 2020. (Id.)
16 Defense counsel also needs additional time to complete Plaintiff's deposition. Defendant
17 initially served a Notice of Taking Deposition of Plaintiff on October 23, 2019, scheduling the
18 deposition on December 20, 2019. (Talmachoff Decl § 15). After several meet and confer
19 efforts to reschedule the deposition to a mutually available date at Plaintiff's counsel’s
20 request, Plaintiff's deposition was rescheduled to July 23, 2020, to occur in Defense counsel’s
21 office in Roseville, CA. (Ibid.) On July 20, 2020, Plaintiffs counsel advised that due to
22 COVID-19 restrictions, Plaintiff would not agree to appear for an in-person deposition and
23 requested that it be held remotely. (Talmachoff Decl { 16) Defense counsel took the
24 deposition off calendar until the deposition could be held in person. (Ibid.)
25 On September 18, 2020, the California legislature amended the Code of Civil Procedure
26 to allow the deposing party to physically attend the same location as the deponent. Accordingly,
27 on November 18, 2020, Defense counsel met and conferred with Plaintiff's counsel to reschedule
28 Plaintiffs deposition on a mutually agreeable date and make arrangements for the deposition to
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DEFENDANT SALAZAR’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION
TO CONTINUE TRIAL DATE, MANDATORY SETTLEMENT CONFERENCE, AND RELATED DATES
occur at a location where Plaintiff, his attorney, and the deposing attomey could physically
attend. (Talmachoff Decl { 17) Defense counsel proposed dates in December 2020 and
January 2021.
Due to Plaintiff's extended delay in providing Code-compliant and non-evasive written
discovery responses, Defense counsel needs additional time to conduct further fact and expert
discovery. Moreover, due to COVID-19, there have been delays in completing Plaintiff's
deposition in person. Finally, Defendant has not been able to complete all the necessary
discovery, retain the necessary experts, and take the depositions of necessary witnesses in order
to prepare himself to submit motions, such as a motion for summary adjudication and/or motion
10 for summary judgement. These motions are necessary to determine liability in this matter.
11 Ill.
12 GROUNDS FOR CONTINUANCE
13 California Rules of Court, Rule 3.1332, provides that although continuances of trials are
14 disfavored, each request for a continuance must be considered on its own merits, and may be
15 made by an ex parte application. Subsection (c) of said Rule permits the court to grant a
16 continuance upon a showing of good cause.
17 California Rules of Court, Rule 3.1332(c)(6), provides that grounds for a continuance
18 establishing good cause include a party’s inability to obtain essential testimony, documents, or
19 other material evidence despite diligent efforts. The court must consider all the facts and
20 circumstances that are relevant to the determination, including a party’s excused inability to
21 obtain essential testimony, documents, or other material evidence despite diligent efforts, and a
22 significant, unanticipated change in the status of the case a result of which the case is not ready
23 for trial (Cal. Rules of Court, Rules 3.1332(c)(6) and Rule 3.1332 (c)(7).)
24 Il
25 Il
26 Il
27 Il
28 Il
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DEFENDANT SALAZAR’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION
TO CONTINUE TRIAL DATE, MANDATORY SETTLEMENT CONFERENCE, AND RELATED DATES
A Defendant Was Not Provided with Notice of the Case Management
Conference at Which Time the C ourt Set This Matter for Trial
Additionally, “an elementary and fundamental requirement of due process in any
proceeding which is to be accorded finality is notice reasonably calculated, under all the
circumstances, to apprise interested parties of the pendency of the action and afford them an
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opportunity to present their objections.
This matter was set by the Court for a Mandatory Settlement Conference on January 29,
2021, Civil Trial Conference on February 5, 2021, and trial on February 22, 2021. Defendant
did not receive an opportunity to appear before the Court, provide input regarding the trial date,
10 or to present his objection to the setting of the above-referenced dates. As such, the current
11 unilateral setting of the respective dates violates Defendant’s right to due process.
12 B. Defendant Needs A dditional Time to Complete Discovery
13 Further, discovery is not complete in this matter due to Plaintiff's failure to provide timely
14 responses. Plaintiff provided incomplete and non-compliant discovery responses and failed to
15 comply with the Court’s order granting our motion to compel further responses to discovery and
16 produce sanctions to our office until October 14, 2020. Plaintiff's actions resulted in insufficient
17 time for Defendant to complete his investigation and evaluation of Plaintiff's claims, depose any
18 necessary witnesses, and evaluate whether a motion for summary judgment/adjudication is
19 appropriate.
20 Additionally, due to COVID-19 restrictions, Plaintiffs deposition has been delayed.
21 Defendant previously noticed Plaintiffs deposition to occur on the mutually agreeable date of
22 July 23, 2020. Just three days earlier, Plaintiff's counsel advised that he would not produce
23 Plaintiff in person at Defense counsel’s office for the deposition due to COVID-19 restrictions.
24 Accordingly, Defense counsel took the deposition off calendar in order to reschedule it to a date
25 when COVID-19 restrictions no longer prevented in person attendance at Plaintiffs deposition.
26 Il
27 Il
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1 Fortich v. Workers' Comp. Appeals Bd., 233 Cal. App. 3d 1449
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DEFENDANT SALAZAR’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION
TO CONTINUE TRIAL DATE, MANDATORY SETTLEMENT CONFERENCE, AND RELATED DATES
Since then, on September 18, 2020, the Califomia legislature amended California Code
of Civil Procedure to allow for the deposing party to be physically present at the location of the
deposition of the deponent. C.C.P. §2025.310(b). Accordingly, Defendant is moving forward
with the deposition and in the process of scheduling the same on a mutually convenient date for
both parties in either December 2020 or January 2021. The timing of the deposition so close to
the trial date prevents Defendant from fully preparing a defense at trial or completing his
investigation of Plaintiff's claims.
As a result of the above, Defendant will need additional time to complete discovery and
retain experts to fully investigate Plaintiff's claims. Defense counsel needs additional time to
10 meet and confer regarding Plaintiffs’ discovery responses, obtain and review additional pertinent
11 records, conduct necessary depositions, retain the necessary experts, and conduct additional
12 discovery in order to be prepared for trial. Defense counsel also needs additional time to
13 complete Plaintiffs deposition in person.
14 Based on the current trial date, there will be no time for additional discovery concerning
15 any facts, persons or documents Plaintiff may identify in response to the aforementioned
16 discovery. Moreover, the currently set trial date denies Defendant the opportunity to complete
17 discovery and file a Motion for Summary Judgment/A djudication as to liability claims.
18 Iv.
19 OTHER FACTORS TO BE CONSIDERED
20 Califomia Rules of Court, Rule 3.1332 (d), provides other factors to be considered in
21 ruling on a motion or application for continuance, in that the court must consider all the facts and
22 circumstances that are relevant to the determination. These may include:
23 () The Proximity of the Trial Date Justifies Continuing Trial Because the
24 Current Trial Date Prevents Additional Discovery and Defendant’s Right to File a Motion
25 for Summary J udgment/A djudication;
26 Based on the current trial date, Defendant has insufficient time to obtain code-compliant
27 discovery responses from Plaintiff and evaluate whether a motion for summary
28 judgment/adjudication is appropriate. Further, there will be no time to perform additional
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DEFENDANT SALAZAR’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION
TO CONTINUE TRIAL DATE, MANDATORY SETTLEMENT CONFERENCE, AND RELATED DATES
discovery should plaintiff identify all facts, persons, and documents supportive of his claims.
(See Califomia Rules of Court, Rule 3.1332 (d)(1).)
(2) Prior C ontinuances;
There have been no previous requests for a continuance by either party in this case. (See
California Rules of Court, Rule 3.1332 (d)(2); Declaration of Mary K. Talmachoff, 112.)
(3) A one-year continuance is reasonable;
Defendant does not believe that a one-year continuance is unreasonable. This is
especially true given the fact that written discovery, depositions, and retention of experts will be
required.
10 (4) There is No Other Alternative Given the Proximity to the Trial and Related
11 Dates;
12 65) Defendant W ould Be Prejudiced if the C ontinuance is Not Granted
13 Defendant should be given the opportunity to perform discovery on Plaintiff’s claims and
14 have the right to perform discovery in order to fully prepare for trial. (See California Rules of
15 Court, Rule 3.1332 (d)(5);))
16 6) The Court’s Calendar has been Considered
17 Defendant assumes that, given the demand on this Court, a new trial date will have an
18 impact. However, Defendant is willing to schedule this matter at the Court’s convenience. (See
19 Califommia Rules of Court, Rule 3.1332 (d)(7).)
20 (7) The Interests of J ustice are Best served by the Granting of this C ontinuance
21 With no time to conduct sufficient discovery to evaluate Plaintiff’s claims, and no time
22 for Defendant to file a motion for summary judgment/adjudication, it is fair and just to continue
23 the trial and related dates in this case.
24 A continuance of trial is justified by the circumstances of the present case. (See California
25 Rules of Court, Rule 3.1332 (d)(8); Declaration of Mary K. Talmachoff, 7113 and 14.)
26 Il
27 Il
28 Il
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DEFENDANT SALAZAR’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION
TO CONTINUE TRIAL DATE, MANDATORY SETTLEMENT CONFERENCE, AND RELATED DATES
Vv
CONCLUSION
Based upon all grounds and other factors outlined above, as well as the supporting
evidence submitted with the declaration of counsel provided herein, Defendant respectfully
request that this Court order the continuance of the currently set trial date of February 22, 2021,
and related dates, including the Mandatory Settlement Conference scheduled for January 29,
2021, and Civil Trial Conference scheduled for February 5, 2021, and all related deadlines,
including the discovery cut-off date and expert discovery deadlines.
Dated: November 20, 2020 BATES WINTER & ASSOCIATES LLP
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12 Attomeys for Defendant
13 JOHNNY SALAZAR
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DEFENDANT SALAZAR’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION
TO CONTINUE TRIAL DATE, MANDATORY SETTLEMENT CONFERENCE, AND RELATED DATES
PROOF OF SERVICE
Re: Chadwick M. Whitworth v. Johnny Salazar, et al.
Placer County Superior Court, Case No. S-CV-0042913
STATE OF CALIFORNIA )
) ss.
COUNTY OF PLACER )
I am employed in the County of Placer, State of California. I am over the age of 18 years
and not a party to e within above-entitled action; my business address is 925 Highland Pointe
Drive, Suite 380, Roseville, California 95678.
On this date I served the attached:
DEFENDANT JOHNNY SALAZAR’S MEMORANDUM OF POINTS AND
AUTHORITIES IN SUPPORT OF MOTION TO CONTINUE TRIAL DATE,
MANDATORY SETTLEMENT CONFERENCE, AND ALL RELATED DATES
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addressed as follows:
11
Counsel for Plaintiff:
12 Jim O. Whitworth
LAW OFFICES OF JIM O. WHITWORTH
13 7071 Wamer Avenue, Suite F-134
Huntington Beach, CA 92647
14
T: 714-841-0585
15 F: 714-845-9950
Email: jim@lemoncarhelp.com
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XX (BY ELECTRONIC MAIL) By electronically serving the document(s) to the electronic
17 mail address set forth above on this date by or before 11:59 p.m., pursuant to Judicial
Council’s Emergency Rule 12 and consistent with Code of Civil Procedure section
18 1010.6(a)(2), (4) and (5).
19 I declare under penalty of perjury under the laws of the State of California that
20 the foregoing is true and correct. Executed on November 23, 2020, in Roseville, California.
21 (Demet Hantanan
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DEFENDANT SALAZAR’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION
TO CONTINUE TRIAL DATE, MANDATORY SETTLEMENT CONFERENCE, AND RELATED DATES