arrow left
arrow right
  • Whitworth, Chadwick M vs. Salazar, Johnny, et alCivil-Roseville document preview
  • Whitworth, Chadwick M vs. Salazar, Johnny, et alCivil-Roseville document preview
  • Whitworth, Chadwick M vs. Salazar, Johnny, et alCivil-Roseville document preview
  • Whitworth, Chadwick M vs. Salazar, Johnny, et alCivil-Roseville document preview
  • Whitworth, Chadwick M vs. Salazar, Johnny, et alCivil-Roseville document preview
  • Whitworth, Chadwick M vs. Salazar, Johnny, et alCivil-Roseville document preview
  • Whitworth, Chadwick M vs. Salazar, Johnny, et alCivil-Roseville document preview
  • Whitworth, Chadwick M vs. Salazar, Johnny, et alCivil-Roseville document preview
						
                                

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 21 22 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 —---- === 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 ~---- == 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). 25 ----- === 8 26 DEFENDANT SALAZAR’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION 27 TO CONTINUE TRIAL DATE, MANDATORY SETTLEMENT CONFERENCE, AND RELATED DATES 28 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 ----- 8-8 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 ~---- == 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 vl 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 28 1 Fortich v. Workers' Comp. Appeals Bd., 233 Cal. App. 3d 1449 ~---- == 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 —---- == 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 a ---- === 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 10 TR 11 12 Attomeys for Defendant 13 JOHNNY SALAZAR 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ----- == 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 10 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 16 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 22 23 24 25 26 27 28 ----- == 10 DEFENDANT SALAZAR’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO CONTINUE TRIAL DATE, MANDATORY SETTLEMENT CONFERENCE, AND RELATED DATES