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1 PEARL I. HOPPER, ESQ. – State Bar No. 258460
STRATMAN, SCHWARTZ & WILLIAMS-ABREGO
2 Mailing Address
P.O. Box 258829
3 Oklahoma City, OK 73125-8829
Physical Address
4 7108 N. Fresno Street, Suite 310
Fresno, CA 93720
5 Phone: (559) 434-0308
Email: pearl.hopper@farmersinsurance.com
6
Attorney for Defendant,
7 TIM HAUSCHEL
8 RECEIVED
12/4/2020 10:44 AM
9 FRESNO COUNTY SUPERIOR COURT
By: S. Garcia, Deputy
10 SUPERIOR COURT OF THE STATE OF CALIFORNIA
11 FOR THE COUNTY OF FRESNO, CENTRAL DIVISION - UNLIMITED CIVIL
12
13 MARIANA HINOJOSA, Case No.: 19CECG03972
UNLIMITED JURISDICTION
14 Plaintiff,
ASSIGNED TO FOR ALL PURPOSES:
15 vs. DEPT: Not Assigned
16 KARMEL DIONTE MOORE ada KARMEL D. DEFENDANT’S EX PARTE APPLICATION
MOORE aka KARMEL MOORE, TIM TO CONTINUE TRIAL DATEAND ALL
17 HAUSCHEL, BRITTANY HAUSCHEL and RELATED DATES; MEMORANDUM OF
DOES 1 to 30, Inclusive, POINTS AND AUTHORITIES;
18 DECLARATION OF PEARL I. HOPPER
Defendants.
19 DATE: December 8, 2020
TIME: 3:30 p.m.
20 DEPT: 502
21
22 TO ALL PARTIES AND COUNSEL OF RECORD:
23 PLEASE TAKE NOTICE that on December 8, 2020 at 3:30 p.m., or as soon thereafter as the
24 matter may be heard in Department 502 of this court located at 1130 "O" Street, Fresno, CA 93721-
25 2220, Defendant, Tim Hauschel, will seek ex parte, an order from the court continuing the Trial and
26 Trial Readiness Hearing for the above-captioned matter and setting a Case Management Conference for
27 the setting of new dates for the Trial and Trial Readiness Conference.
28 ///
DEFENDANT’S EX PARTE APPLICATION TO CONTINUE TRIAL AND ALL RELATED DATES; MEMORANDUM OF POINTS AND
AUTHORITIES; DECLARATION OF PEARL I. HOPPER -1
1 This Application is brought pursuant to California Code of Civil Procedure Section 595.2 and
2 California Rules of Court, Rules 3.1332 and 3.1200-3.1207 on the grounds that:
3 1. The trial court has broad discretion to continue trials and it is reversible error to deny a
4 motion for a continuance on the basis of a policy against continuances.
5 2. There has been a significant, unanticipated challenge to scheduling Defendant Tim
6 Hauschel’s Motion for Summary Judgment prejudicing his ability to resolve the complaint by
7 way of Motion for Summary Judgment and thereby avoiding the costs of trial. Due to the Covid-
8 19 pandemic creating a backlog for the law and motion calendar of the court, when counsel for
9 Defendant attempted to schedule a hearing date for Motion for Summary Judgment the first
10 available date was April, 22, 2021 – one month after the trial date. The Motion for Summary
11 Judgment is being filed and served in accordance to the deadlines for the current trial date of
12 March 22, 2021 despite the fact that the hearing date with the court is after the current trial date.
13 3. There is no prejudice to the parties involved in this action due to the continuance
14 requested. Whereas, Defendant Tim Hauschel will be highly prejudiced if he is unable have the
15 opportunity to resolve the lawsuit by way of Motion for Summary Judgment due to the court’s
16 impacted law and motion calendar.
17 4. There is no lack of diligence or good faith on the part of defendant and his counsel.
18 5. There have been no other continuances of the trial date.
19 6. The request for an ex parte order to continue the trial and all related dates is necessary as
20 there in insufficient time to prepare a fully noticed motion prior to the December 4, 2020 last day
21 to file and serve the Motion for Summary Judgment as required by the current trial date of March
22 22, 2021.
23 ///
24 ///
25 ///
26 ///
27 ///
28 ///
DEFENDANT’S EX PARTE APPLICATION TO CONTINUE TRIAL AND ALL RELATED DATES; MEMORANDUM OF POINTS AND
AUTHORITIES; DECLARATION OF PEARL I. HOPPER -2
1 This Application is based upon the accompanying Memorandum of Points and Authorities, the
2 Declaration of Pearl I. Hopper, pleadings, papers and records on file in this action, and upon such further
3 oral and/or documentary evidence as may properly be before the Court at the time of the hearing of the
4 motion
5 STRATMAN, SCHWARTZ & WILLIAMS-
DATED: December 3, 2020
ABREGO
6
7 BY:
8 PEARL I. HOPPER, ESQ.
Attorney for Defendant,
9 TIM HAUSCHEL
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DEFENDANT’S EX PARTE APPLICATION TO CONTINUE TRIAL AND ALL RELATED DATES; MEMORANDUM OF POINTS AND
AUTHORITIES; DECLARATION OF PEARL I. HOPPER -3
1 MEMORANDUM OF POINTS AND AUTHORITIES
2 1.
3 This action arises from two separate dog bite incidents that occurred on July 16, 2018 and July 9,
4 2019 on property owned by Defendant Tim Hauschel. The plaintiff filed a complaint on October 19,
5
2019 alleging general negligence and strict liability for each separate incident upon Tim Hauschel,
property owner, and Brittany Hauschel and Karmel Moore, the tenants living on the property who
6
owned the dog involved in both incidents. Defendants Brittany Hauschel and Karmel Moore are
7
representing themselves in this action.
8
The current trial date of March 22, 2021 was assigned at the initial case management conference
9 on March 3, 2020, shortly before the Covid-19 pandemic orders were put into place. At that time Shyla
10 Smith was the assigned attorney representing Defendant Tim Hauschel. (Declaration of Pearl Hopper).
11 The parties have worked diligently to complete discovery and be prepared for the current trial date even
with the obstacles presented by Covid-19 and further complicated by medical leave taken from July to
12
the present by the previous handling attorney, Ms. Smith. Depositions of all three defendants were
13
originally set for April 29, 2020 but cancelled due to Covid-19. (Declaration of Pearl Hopper). The
14
depositions of all three defendants as well as plaintiff were then rescheduled for June 22, 2020. The June
15 depositions were all cancelled due to Ms. Smith being ill. (Declaration of Pearl Hopper). Shortly
16 thereafter Ms. Smith took medical leave from work which has been renewed each month since her initial
17 leave in July 2020. Depositions of all three defendants were rescheduled for August 3, 2020 and in Ms.
Smith’s absence they were covered by Attorney Pearl Hopper. (Declaration of Pearl Hopper). The
18
deposition of Plaintiff went forward on October 5, 2020 and was taken by another attorney assisting
19
with Ms. Smith’s cases, Abigail Anderson. (Declaration of Pearl Hopper). Appearing that she would not
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return in the near future the case was reassigned to Pearl Hopper for handling on October 21, 2020.
21 (Declaration of Pearl Hopper).
22 On November 30, 2020 Ms. Hopper contacted the Fresno County Superior Court Law & Motion
23 Department to confirm a hearing date for Defendant Tim Hauschel’s Motion for Summary Judgment on
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February 18 or 19, 2021 to have proper notice time for the March 22, 2021 trial date. (Declaration of
Pearl Hopper). Ms. Hopper was advised by the clerk that due to backlog created in the court due to the
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Covid-19 pandemic, the earliest date available was April 22, 2021. In speaking with the clerk and
26
understanding that there was no other date available unless Defendant sought an Order from the court
27
shortening the time within which the Motion for Summary Judgment could be heard, counsel confirmed
28 the April 22, 2021 date for the motion. (Declaration of Pearl Hopper).
DEFENDANT’S EX PARTE APPLICATION TO CONTINUE TRIAL AND ALL RELATED DATES; MEMORANDUM OF POINTS AND
AUTHORITIES; DECLARATION OF PEARL I. HOPPER -4
1 Counsel next emailed counsel for Plaintiff, Nicholas Urgesi, to advise him of the calendaring
2 situation and request they agree to stipulate to continue the trial date. Mr. Urgesi responded on
3
December 1, 2020 that he would consult with his client. (Declaration of Pearl Hopper). On December 2,
2020 Ms. Hopper emailed a stipulation for Mr. Urgesi to sign but as of today, December 3, 2020 the
4
stipulation has not been returned. (Declaration of Pearl Hopper). After attempting to contact Mr. Moore
5
and Ms. Hauschel who are representing themselves regarding the stipulation to continue, Ms. Hopper
6
learned that the phone number in their Answer to the Complaint is not in service. Mr. Hauschel was able
7 to provide a current phone number and Ms. Hauschel confirmed that she and Mr. Moore did not object
8 to the continuance of the trial. (Declaration of Pearl Hopper).
9 In an effort to best comply with the time limits of the current trial date, the Motion for Summary
Judgment is being hand-served on December 4, 2020 on all parties. This is the last date to hand-serve
10
the motion were we able to obtain a hearing date prior to the February 19, 2021 cut-off date for the
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March 2021 trial date. (Declaration of Pearl Hopper).
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There have been no prior requests for a continuance of the trial date by either party. This ex parte
13 application is based upon good cause and significant prejudice would result to this moving defendant if
14 this ex parte application to continue the trial for a short period is not granted.
15 2.
THE TRIAL COURT HAS BROAD DISCRETION TO CONTINUE TRIALS AND IT IS
16
REVERSIBLE ERROR TO DENY A MOTION FOR A CONTINUANCE ON THE BASIS OF A
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POLICY AGAINST CONTINUANCES
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On a showing of good cause, any case may be assigned a trial date beyond the period designated.
19 [Rule 3.1332 and Rule 3.1335, California Rules of Court.]
20 Among the circumstances enumerated in the Rule, which amount to good cause is:
21 “…(6) A party’s excused inability to obtain essential testimony, documents, or other
22
material evidence despite diligent efforts; or
(7) A significant, unanticipated change in the status of the case as a result of which
23
the case is not ready for trial.”
24
Among other factors to be considered under the Rules are the proximity of the trial date, whether
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there was a previous continuance, whether any of the parties would suffer prejudice. Importantly, the
26 court should also consider whether the interests of justice are best served by a continuance and any other
27 fact or circumstance relevant to the fair determination of the motion or application. (Rule 3.1332(d) (10
28 and (11)).
DEFENDANT’S EX PARTE APPLICATION TO CONTINUE TRIAL AND ALL RELATED DATES; MEMORANDUM OF POINTS AND
AUTHORITIES; DECLARATION OF PEARL I. HOPPER -5
1 There is no hard and fast rule that there can never be a continuance of a trial for specific reasons.
2 As the court held in Arnett vs. Administrative Hearings (1996) 49 Cal.App.4 th 342, 343, a continuance
3
for a short and certain time is less objectionable than a continuance for a long and indeterminable period
of time; and, since it is impossible to foresee or predict all of the vicissitudes that may occur in the
4
course of a contested proceeding, the determination for a continuance must be based upon the facts and
5
circumstances of the case as they exist at the time of the determination.
6
In the recent decision of Hernandez v. Superior Court of California, (2004) 115 Cal.App.4 th
7 1242, the Court of Appeal acknowledged that the trial judge must have control over the court and the
8 court's calendar, however, the trial court must grant continuances on a showing of good cause.
9 In this matter, there has been a significant, unanticipated challenge to scheduling Defendant Tim
Hauschel’s Motion for Summary Judgment prejudicing his ability to resolve the complaint by way of
10
Motion for Summary Judgment and thereby avoiding the costs of trial. Due to the Covid-19 pandemic
11
creating a backlog for the law and motion calendar of the court, when counsel for Defendant attempted
12
to schedule a hearing date for Motion for Summary Judgment the first available date was April, 22, 2021
13 – one month after the trial date. Defendant is complying with the service time limits imposed by the
14 current trial date, however the date for the hearing on the motion is reserved and calendared for April 22,
15 2021. The parties have worked diligently under all circumstances and the court’s law and motion
calendar is not something we can control.
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The continuance requested is for a short period of time and there is no reason any of the parties
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would suffer prejudice. Furthermore, defense counsel was diligent in preparing this ex parte application
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and good cause exists.
19 3.
20 THERE IS NO LACK OF DILIGENCE OR GOOD FAITH ON THE PART OF THE
21 DEFENDANTS OR THEIR COUNSEL AND THERE IS NO PREJUDICE TO ANY OF THE
22 PARTIES TO THIS ACTION
23 Continuances should be granted when nothing in the record shows a lack of diligence or of
24 good faith on the part of the defendant or that plaintiff would suffer any prejudice. Cohen v. Herbert
25 (1960) 186 Cal.App.2d 488, 494-495.
26 In this matter, there is no lack of diligence or good faith on the part of the defendants and their
27 counsel. This application was brought within a reasonable amount of time as soon as counsel learned of
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DEFENDANT’S EX PARTE APPLICATION TO CONTINUE TRIAL AND ALL RELATED DATES; MEMORANDUM OF POINTS AND
AUTHORITIES; DECLARATION OF PEARL I. HOPPER -6
1 the law and motion backlog and reserved the date available, the parties were contacted and informal
2 resolution to this situation was sought. After it became apparent that counsel for plaintiff did not intend
3 to sign the stipulation, this motion was calendared with the court for the first available date. Further,
4 counsel for Defendant Tim Hauschel is filing and serving the Motion for Summary Judgment within the
5 time limits prescribed by the current March 2021 trial date.
6 Furthermore, this continuance does not prejudice any of the parties to this action.
7 CONCLUSION
8 Based on the foregoing, it is respectfully requested that this Court grant this ex parte application
9 to continue the trial date from March 22, 2021 and to set the matter for a Case Management Conference,
10 or a new date the court prefers that will accommodate the motion hearing date of April 22, 2021 given
11 by the court’s law and motion clerk, and to continue the Trial Readiness Conference and Mandatory
12 Settlement Conference, and to continue all discovery cut off dates in accord with the continued trial
13 date.
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15 STRATMAN, SCHWARTZ & WILLIAMS-
DATED: December 3, 2020
ABREGO
16
17 BY:
18 PEARL I. HOPPER, ESQ.
Attorney for Defendant,
19 TIM HAUSCHEL
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DEFENDANT’S EX PARTE APPLICATION TO CONTINUE TRIAL AND ALL RELATED DATES; MEMORANDUM OF POINTS AND
AUTHORITIES; DECLARATION OF PEARL I. HOPPER -7
1 DECLARATION OF PEARL I. HOPPER
2 I, PEARL I. HOPPER, declare:
3 1. I am an attorney at law, duly licensed to practice in all Courts of the State of California,
4 and am a member of the law offices of STRATMAN, SCHWARTZ & WILLIAMS-ABREGO,
5 attorneys of record for Defendant, Tim Hauschel, in the above-entitled matter. I am an employee
6 of the Claims Litigation Department, Farmers Insurance Exchange and Affiliates, Not a
7 Partnership.
8 2. I am the attorney assigned with the responsibility for the file on this matter, and have
9 thoroughly reviewed its contents and am personally familiar with each of the facts set forth
10 herein. If called as a witness, I could and would competently testify concerning the following
11 matters:
12 3. The current trial date of March 22, 2021 was assigned at the initial case management
13 conference on March 3, 2020, shortly before the Covid-19 pandemic orders were put into place.
14 At that time Shyla Smith was the assigned attorney representing Defendant Tim Hauschel.
15 4. Depositions of all three defendants were originally set for April 29, 2020 but cancelled
16 due to Covid-19. The depositions of all three defendants as well as plaintiff were then
17 rescheduled for June 22, 2020.
18 5. The June depositions were all cancelled due to Ms. Smith being ill. Shortly thereafter Ms.
19 Smith took medical leave from work which has been renewed each month since her initial leave
20 in July 2020.
21 6. Depositions of all three defendants were rescheduled for August 3, 2020, and in Ms.
22 Smith’s absence they were covered by Attorney Pearl Hopper.
23 7. The deposition of Plaintiff went forward on October 5, 2020 and was taken by another
24 attorney assisting with Ms. Smith’s cases, Abigail Anderson.
25 8. Appearing that Ms. Smith would not return in the near future the case was reassigned to
26 Pearl Hopper for handling on October 21, 2020.
27 9. On November 30, 2020 Ms. Hopper contacted the Fresno County Superior Court Law &
28 Motion Department to confirm a hearing date for Defendant Tim Hauschel’s Motion for
DEFENDANT’S EX PARTE APPLICATION TO CONTINUE TRIAL AND ALL RELATED DATES; MEMORANDUM OF POINTS AND
AUTHORITIES; DECLARATION OF PEARL I. HOPPER -8
1 Summary Judgment on February 18 or 19, 2021 to have proper notice time for the March 22,
2 2021 trial date. Ms. Hopper was advised by the clerk that due to backlog created in the court due
3 to the Covid-19 pandemic, the earliest date available was April 22, 2021. In speaking with the
4 clerk and understanding that there was no other date available counsel confirmed the April 22,
5 2021 date for the motion.
6 10. Counsel next emailed counsel for Plaintiff, Nicholas Urgesi, to advise him of the
7 calendaring situation and request they agree to stipulate to continue the trial date. Mr. Urgesi
8 responded on December 1, 2020 that he would consult with his client.
9 11. On December 2, 2020 Ms. Hopper emailed a stipulation for Mr. Urgesi to sign but as of
10 today, December 3, 2020 the stipulation has not been returned.
11 12. After attempting to contact Mr. Moore and Ms. Hauschel who are representing
12 themselves regarding the stipulation to continue, Ms. Hopper learned that the phone number in
13 their Answer to the Complaint is not in service. Mr. Hauschel was able to provide a current
14 phone number and on December 3, 2020 Ms. Hauschel confirmed that she and Mr. Moore did
15 not object to the continuance of the trial.
16 13. In an effort to best comply with the time limits of the current trial date, the Motion for
17 Summary Judgment is being hand-served on December 4, 2020 on all parties. This is the last
18 date to hand-serve the motion were we able to obtain a hearing date prior to the February 19,
19 2021 cut-off date for the March 2021 trial date.
20 14. Because the trial date in this action is currently set for March 22, 2021, defendant will
21 need to request a continuance of the trial in order to have his Motion for Summary Judgment
22 heard prior to the trial date as there were not hearing dates available due to the impact of the
23 Covid-19 backlog on the court’s Law and Motion calendar.
24 I declare under penalty of perjury under the laws of the State of California that the foregoing is
25 true and correct. Executed this __3rd____ day of December, 2020, at Fresno, CA.
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PEARL I. HOPPER, Declarant
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DEFENDANT’S EX PARTE APPLICATION TO CONTINUE TRIAL AND ALL RELATED DATES; MEMORANDUM OF POINTS AND
AUTHORITIES; DECLARATION OF PEARL I. HOPPER -9
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1 PEARL I. HOPPER, ESQ. – State Bar No. 258460 STRATMAN, SCHWARTZ & WILLIAMS-ABREGO 2 Mailing Address P.O. Box 258829 3 Oklahoma City, OK 73125-8829 Physical Address 4 7108 N. Fresno Street, Suite 310 Fresno, CA 93720 5 Phone: (559) 434-0308 Email: pearl.hopper@farmersinsurance.com 6 Attorney for Defendant, 7 TIM HAUSCHEL 8 RECEIVED 12/4/2020 10:44 AM 9 FRESNO COUNTY SUPERIOR COURT By: S. Garcia, Deputy 10 SUPERIOR COURT OF THE STATE OF CALIFORNIA 11 FOR THE COUNTY OF FRESNO, CENTRAL DIVISION - UNLIMITED CIVIL 12 13 MARIANA HINOJOSA, Case No.: 19CECG03972 UNLIMITED JURISDICTION 14 Plaintiff, ASSIGNED TO FOR ALL PURPOSES: 15 vs. DEPT: Not Assigned 16 KARMEL DIONTE MOORE ada KARMEL D. DEFENDANT’S EX PARTE APPLICATION MOORE aka KARMEL MOORE, TIM TO CONTINUE TRIAL DATEAND ALL 17 HAUSCHEL, BRITTANY HAUSCHEL and RELATED DATES; MEMORANDUM OF DOES 1 to 30, Inclusive, POINTS AND AUTHORITIES; 18 DECLARATION OF PEARL I. HOPPER Defendants. 19 DATE: December 8, 2020 TIME: 3:30 p.m. 20 DEPT: 502 21 22 TO ALL PARTIES AND COUNSEL OF RECORD: 23 PLEASE TAKE NOTICE that on December 8, 2020 at 3:30 p.m., or as soon thereafter as the 24 matter may be heard in Department 502 of this court located at 1130 "O" Street, Fresno, CA 93721- 25 2220, Defendant, Tim Hauschel, will seek ex parte, an order from the court continuing the Trial and 26 Trial Readiness Hearing for the above-captioned matter and setting a Case Management Conference for 27 the setting of new dates for the Trial and Trial Readiness Conference. 28 /// DEFENDANT’S EX PARTE APPLICATION TO CONTINUE TRIAL AND ALL RELATED DATES; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF PEARL I. HOPPER -1 1 This Application is brought pursuant to California Code of Civil Procedure Section 595.2 and 2 California Rules of Court, Rules 3.1332 and 3.1200-3.1207 on the grounds that: 3 1. The trial court has broad discretion to continue trials and it is reversible error to deny a 4 motion for a continuance on the basis of a policy against continuances. 5 2. There has been a significant, unanticipated challenge to scheduling Defendant Tim 6 Hauschel’s Motion for Summary Judgment prejudicing his ability to resolve the complaint by 7 way of Motion for Summary Judgment and thereby avoiding the costs of trial. Due to the Covid- 8 19 pandemic creating a backlog for the law and motion calendar of the court, when counsel for 9 Defendant attempted to schedule a hearing date for Motion for Summary Judgment the first 10 available date was April, 22, 2021 – one month after the trial date. The Motion for Summary 11 Judgment is being filed and served in accordance to the deadlines for the current trial date of 12 March 22, 2021 despite the fact that the hearing date with the court is after the current trial date. 13 3. There is no prejudice to the parties involved in this action due to the continuance 14 requested. Whereas, Defendant Tim Hauschel will be highly prejudiced if he is unable have the 15 opportunity to resolve the lawsuit by way of Motion for Summary Judgment due to the court’s 16 impacted law and motion calendar. 17 4. There is no lack of diligence or good faith on the part of defendant and his counsel. 18 5. There have been no other continuances of the trial date. 19 6. The request for an ex parte order to continue the trial and all related dates is necessary as 20 there in insufficient time to prepare a fully noticed motion prior to the December 4, 2020 last day 21 to file and serve the Motion for Summary Judgment as required by the current trial date of March 22 22, 2021. 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// DEFENDANT’S EX PARTE APPLICATION TO CONTINUE TRIAL AND ALL RELATED DATES; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF PEARL I. HOPPER -2 1 This Application is based upon the accompanying Memorandum of Points and Authorities, the 2 Declaration of Pearl I. Hopper, pleadings, papers and records on file in this action, and upon such further 3 oral and/or documentary evidence as may properly be before the Court at the time of the hearing of the 4 motion 5 STRATMAN, SCHWARTZ & WILLIAMS- DATED: December 3, 2020 ABREGO 6 7 BY: 8 PEARL I. HOPPER, ESQ. Attorney for Defendant, 9 TIM HAUSCHEL 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DEFENDANT’S EX PARTE APPLICATION TO CONTINUE TRIAL AND ALL RELATED DATES; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF PEARL I. HOPPER -3 1 MEMORANDUM OF POINTS AND AUTHORITIES 2 1. 3 This action arises from two separate dog bite incidents that occurred on July 16, 2018 and July 9, 4 2019 on property owned by Defendant Tim Hauschel. The plaintiff filed a complaint on October 19, 5 2019 alleging general negligence and strict liability for each separate incident upon Tim Hauschel, property owner, and Brittany Hauschel and Karmel Moore, the tenants living on the property who 6 owned the dog involved in both incidents. Defendants Brittany Hauschel and Karmel Moore are 7 representing themselves in this action. 8 The current trial date of March 22, 2021 was assigned at the initial case management conference 9 on March 3, 2020, shortly before the Covid-19 pandemic orders were put into place. At that time Shyla 10 Smith was the assigned attorney representing Defendant Tim Hauschel. (Declaration of Pearl Hopper). 11 The parties have worked diligently to complete discovery and be prepared for the current trial date even with the obstacles presented by Covid-19 and further complicated by medical leave taken from July to 12 the present by the previous handling attorney, Ms. Smith. Depositions of all three defendants were 13 originally set for April 29, 2020 but cancelled due to Covid-19. (Declaration of Pearl Hopper). The 14 depositions of all three defendants as well as plaintiff were then rescheduled for June 22, 2020. The June 15 depositions were all cancelled due to Ms. Smith being ill. (Declaration of Pearl Hopper). Shortly 16 thereafter Ms. Smith took medical leave from work which has been renewed each month since her initial 17 leave in July 2020. Depositions of all three defendants were rescheduled for August 3, 2020 and in Ms. Smith’s absence they were covered by Attorney Pearl Hopper. (Declaration of Pearl Hopper). The 18 deposition of Plaintiff went forward on October 5, 2020 and was taken by another attorney assisting 19 with Ms. Smith’s cases, Abigail Anderson. (Declaration of Pearl Hopper). Appearing that she would not 20 return in the near future the case was reassigned to Pearl Hopper for handling on October 21, 2020. 21 (Declaration of Pearl Hopper). 22 On November 30, 2020 Ms. Hopper contacted the Fresno County Superior Court Law & Motion 23 Department to confirm a hearing date for Defendant Tim Hauschel’s Motion for Summary Judgment on 24 February 18 or 19, 2021 to have proper notice time for the March 22, 2021 trial date. (Declaration of Pearl Hopper). Ms. Hopper was advised by the clerk that due to backlog created in the court due to the 25 Covid-19 pandemic, the earliest date available was April 22, 2021. In speaking with the clerk and 26 understanding that there was no other date available unless Defendant sought an Order from the court 27 shortening the time within which the Motion for Summary Judgment could be heard, counsel confirmed 28 the April 22, 2021 date for the motion. (Declaration of Pearl Hopper). DEFENDANT’S EX PARTE APPLICATION TO CONTINUE TRIAL AND ALL RELATED DATES; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF PEARL I. HOPPER -4 1 Counsel next emailed counsel for Plaintiff, Nicholas Urgesi, to advise him of the calendaring 2 situation and request they agree to stipulate to continue the trial date. Mr. Urgesi responded on 3 December 1, 2020 that he would consult with his client. (Declaration of Pearl Hopper). On December 2, 2020 Ms. Hopper emailed a stipulation for Mr. Urgesi to sign but as of today, December 3, 2020 the 4 stipulation has not been returned. (Declaration of Pearl Hopper). After attempting to contact Mr. Moore 5 and Ms. Hauschel who are representing themselves regarding the stipulation to continue, Ms. Hopper 6 learned that the phone number in their Answer to the Complaint is not in service. Mr. Hauschel was able 7 to provide a current phone number and Ms. Hauschel confirmed that she and Mr. Moore did not object 8 to the continuance of the trial. (Declaration of Pearl Hopper). 9 In an effort to best comply with the time limits of the current trial date, the Motion for Summary Judgment is being hand-served on December 4, 2020 on all parties. This is the last date to hand-serve 10 the motion were we able to obtain a hearing date prior to the February 19, 2021 cut-off date for the 11 March 2021 trial date. (Declaration of Pearl Hopper). 12 There have been no prior requests for a continuance of the trial date by either party. This ex parte 13 application is based upon good cause and significant prejudice would result to this moving defendant if 14 this ex parte application to continue the trial for a short period is not granted. 15 2. THE TRIAL COURT HAS BROAD DISCRETION TO CONTINUE TRIALS AND IT IS 16 REVERSIBLE ERROR TO DENY A MOTION FOR A CONTINUANCE ON THE BASIS OF A 17 POLICY AGAINST CONTINUANCES 18 On a showing of good cause, any case may be assigned a trial date beyond the period designated. 19 [Rule 3.1332 and Rule 3.1335, California Rules of Court.] 20 Among the circumstances enumerated in the Rule, which amount to good cause is: 21 “…(6) A party’s excused inability to obtain essential testimony, documents, or other 22 material evidence despite diligent efforts; or (7) A significant, unanticipated change in the status of the case as a result of which 23 the case is not ready for trial.” 24 Among other factors to be considered under the Rules are the proximity of the trial date, whether 25 there was a previous continuance, whether any of the parties would suffer prejudice. Importantly, the 26 court should also consider whether the interests of justice are best served by a continuance and any other 27 fact or circumstance relevant to the fair determination of the motion or application. (Rule 3.1332(d) (10 28 and (11)). DEFENDANT’S EX PARTE APPLICATION TO CONTINUE TRIAL AND ALL RELATED DATES; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF PEARL I. HOPPER -5 1 There is no hard and fast rule that there can never be a continuance of a trial for specific reasons. 2 As the court held in Arnett vs. Administrative Hearings (1996) 49 Cal.App.4 th 342, 343, a continuance 3 for a short and certain time is less objectionable than a continuance for a long and indeterminable period of time; and, since it is impossible to foresee or predict all of the vicissitudes that may occur in the 4 course of a contested proceeding, the determination for a continuance must be based upon the facts and 5 circumstances of the case as they exist at the time of the determination. 6 In the recent decision of Hernandez v. Superior Court of California, (2004) 115 Cal.App.4 th 7 1242, the Court of Appeal acknowledged that the trial judge must have control over the court and the 8 court's calendar, however, the trial court must grant continuances on a showing of good cause. 9 In this matter, there has been a significant, unanticipated challenge to scheduling Defendant Tim Hauschel’s Motion for Summary Judgment prejudicing his ability to resolve the complaint by way of 10 Motion for Summary Judgment and thereby avoiding the costs of trial. Due to the Covid-19 pandemic 11 creating a backlog for the law and motion calendar of the court, when counsel for Defendant attempted 12 to schedule a hearing date for Motion for Summary Judgment the first available date was April, 22, 2021 13 – one month after the trial date. Defendant is complying with the service time limits imposed by the 14 current trial date, however the date for the hearing on the motion is reserved and calendared for April 22, 15 2021. The parties have worked diligently under all circumstances and the court’s law and motion calendar is not something we can control. 16 The continuance requested is for a short period of time and there is no reason any of the parties 17 would suffer prejudice. Furthermore, defense counsel was diligent in preparing this ex parte application 18 and good cause exists. 19 3. 20 THERE IS NO LACK OF DILIGENCE OR GOOD FAITH ON THE PART OF THE 21 DEFENDANTS OR THEIR COUNSEL AND THERE IS NO PREJUDICE TO ANY OF THE 22 PARTIES TO THIS ACTION 23 Continuances should be granted when nothing in the record shows a lack of diligence or of 24 good faith on the part of the defendant or that plaintiff would suffer any prejudice. Cohen v. Herbert 25 (1960) 186 Cal.App.2d 488, 494-495. 26 In this matter, there is no lack of diligence or good faith on the part of the defendants and their 27 counsel. This application was brought within a reasonable amount of time as soon as counsel learned of 28 DEFENDANT’S EX PARTE APPLICATION TO CONTINUE TRIAL AND ALL RELATED DATES; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF PEARL I. HOPPER -6 1 the law and motion backlog and reserved the date available, the parties were contacted and informal 2 resolution to this situation was sought. After it became apparent that counsel for plaintiff did not intend 3 to sign the stipulation, this motion was calendared with the court for the first available date. Further, 4 counsel for Defendant Tim Hauschel is filing and serving the Motion for Summary Judgment within the 5 time limits prescribed by the current March 2021 trial date. 6 Furthermore, this continuance does not prejudice any of the parties to this action. 7 CONCLUSION 8 Based on the foregoing, it is respectfully requested that this Court grant this ex parte application 9 to continue the trial date from March 22, 2021 and to set the matter for a Case Management Conference, 10 or a new date the court prefers that will accommodate the motion hearing date of April 22, 2021 given 11 by the court’s law and motion clerk, and to continue the Trial Readiness Conference and Mandatory 12 Settlement Conference, and to continue all discovery cut off dates in accord with the continued trial 13 date. 14 15 STRATMAN, SCHWARTZ & WILLIAMS- DATED: December 3, 2020 ABREGO 16 17 BY: 18 PEARL I. HOPPER, ESQ. Attorney for Defendant, 19 TIM HAUSCHEL 20 21 22 23 24 25 26 27 28 DEFENDANT’S EX PARTE APPLICATION TO CONTINUE TRIAL AND ALL RELATED DATES; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF PEARL I. HOPPER -7 1 DECLARATION OF PEARL I. HOPPER 2 I, PEARL I. HOPPER, declare: 3 1. I am an attorney at law, duly licensed to practice in all Courts of the State of California, 4 and am a member of the law offices of STRATMAN, SCHWARTZ & WILLIAMS-ABREGO, 5 attorneys of record for Defendant, Tim Hauschel, in the above-entitled matter. I am an employee 6 of the Claims Litigation Department, Farmers Insurance Exchange and Affiliates, Not a 7 Partnership. 8 2. I am the attorney assigned with the responsibility for the file on this matter, and have 9 thoroughly reviewed its contents and am personally familiar with each of the facts set forth 10 herein. If called as a witness, I could and would competently testify concerning the following 11 matters: 12 3. The current trial date of March 22, 2021 was assigned at the initial case management 13 conference on March 3, 2020, shortly before the Covid-19 pandemic orders were put into place. 14 At that time Shyla Smith was the assigned attorney representing Defendant Tim Hauschel. 15 4. Depositions of all three defendants were originally set for April 29, 2020 but cancelled 16 due to Covid-19. The depositions of all three defendants as well as plaintiff were then 17 rescheduled for June 22, 2020. 18 5. The June depositions were all cancelled due to Ms. Smith being ill. Shortly thereafter Ms. 19 Smith took medical leave from work which has been renewed each month since her initial leave 20 in July 2020. 21 6. Depositions of all three defendants were rescheduled for August 3, 2020, and in Ms. 22 Smith’s absence they were covered by Attorney Pearl Hopper. 23 7. The deposition of Plaintiff went forward on October 5, 2020 and was taken by another 24 attorney assisting with Ms. Smith’s cases, Abigail Anderson. 25 8. Appearing that Ms. Smith would not return in the near future the case was reassigned to 26 Pearl Hopper for handling on October 21, 2020. 27 9. On November 30, 2020 Ms. Hopper contacted the Fresno County Superior Court Law & 28 Motion Department to confirm a hearing date for Defendant Tim Hauschel’s Motion for DEFENDANT’S EX PARTE APPLICATION TO CONTINUE TRIAL AND ALL RELATED DATES; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF PEARL I. HOPPER -8 1 Summary Judgment on February 18 or 19, 2021 to have proper notice time for the March 22, 2 2021 trial date. Ms. Hopper was advised by the clerk that due to backlog created in the court due 3 to the Covid-19 pandemic, the earliest date available was April 22, 2021. In speaking with the 4 clerk and understanding that there was no other date available counsel confirmed the April 22, 5 2021 date for the motion. 6 10. Counsel next emailed counsel for Plaintiff, Nicholas Urgesi, to advise him of the 7 calendaring situation and request they agree to stipulate to continue the trial date. Mr. Urgesi 8 responded on December 1, 2020 that he would consult with his client. 9 11. On December 2, 2020 Ms. Hopper emailed a stipulation for Mr. Urgesi to sign but as of 10 today, December 3, 2020 the stipulation has not been returned. 11 12. After attempting to contact Mr. Moore and Ms. Hauschel who are representing 12 themselves regarding the stipulation to continue, Ms. Hopper learned that the phone number in 13 their Answer to the Complaint is not in service. Mr. Hauschel was able to provide a current 14 phone number and on December 3, 2020 Ms. Hauschel confirmed that she and Mr. Moore did 15 not object to the continuance of the trial. 16 13. In an effort to best comply with the time limits of the current trial date, the Motion for 17 Summary Judgment is being hand-served on December 4, 2020 on all parties. This is the last 18 date to hand-serve the motion were we able to obtain a hearing date prior to the February 19, 19 2021 cut-off date for the March 2021 trial date. 20 14. Because the trial date in this action is currently set for March 22, 2021, defendant will 21 need to request a continuance of the trial in order to have his Motion for Summary Judgment 22 heard prior to the trial date as there were not hearing dates available due to the impact of the 23 Covid-19 backlog on the court’s Law and Motion calendar. 24 I declare under penalty of perjury under the laws of the State of California that the foregoing is 25 true and correct. Executed this __3rd____ day of December, 2020, at Fresno, CA. 26 _________________________________ 27 PEARL I. HOPPER, Declarant 28 DEFENDANT’S EX PARTE APPLICATION TO CONTINUE TRIAL AND ALL RELATED DATES; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF PEARL I. HOPPER -9