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DAVID M. MOECK, Esq. -#201341 E-FILED
QUINLAN, KERSHAW & FANUCCHI 1/27/2021 10:56 AM
2125 Merced Street Superior Court of California
Fresno, California 93721 County of Fresno
Telephone: (559) 268—8771 By: C. York, Deputy
Facsimile: (559) 268-5701
UILWN
Attorneys for Plaintiffs, Mary Belemjian, Greg Belemjian
KOOOQQ
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF FRESNO
10
11 MARY BELEMJIAN, GREG :
Case N0. 18CECG00130
BELEMJIAN, :
12 :
PLAINTIFFS’ MEMORANDUM OF
Plaintiffs, :
POINTS AND AUTHORITIES IN SUPPORT
13 :
OF PLAINTIFFS’ REQUEST FOR
V. :
CONTINUANCE OF DEFENDANTS,
14 :
CENTRAL CALIFORNIA EAR NOSE &
CENTRAL CALIFORNIA EAR, j
THROAT, AND BENJAMIN
15 NOSE & THROAT, BENJAMIN TEITELBAUM, M.D.’S, MOTION FOR
TEITELBAUM, M.D., and DOES 1 :
'
SUMMARY JUDGMENT
16 to 10, Inclusive,
:
DATE: February 10, 2021
17 Defendants. :
‘
TIME: 9:00 am
DEPT: 501
18
Complaint Filed: January 10, 20 1 8
19 Trial Date: October 24, 2021
20
21
22 COMES NOW, Plaintiffs, Mary Belemjian and Greg Belemjian and hereby
23 submit the following Memorandum ofPoints and Authorities in Support 0f Plaintiffs’ Request
24 for a Continuance 0f Defendants” Motion for Summary Judgment.
25 INTRODUCTION
26 Defendants, Central California Ear Nose & Throat and Benjamin Teitelbaum, M.D.’s,
27 have moved for Summary Judgment, contending neither Defendant’s conduct fell below the
28 requisite standard 0f care.
Plaintiffs request a continuance ofthis motion for one month, pursuant t0 Code 0f Civil
Procedure § 4370(h), based upon the matters set forth within the Declaration of David M.
Moeck, Esq., filed with this request. In particular, although Plaintiffs have secured an expert
Who has indicated the conduct 0f Defendants fell below the requisite standard 0f care, for
an expert Declaration cannot be submitted by the date
\OOOQONU‘I-DUJNr—a
reasons set forth within the Declaration,
opposition t0 the motion is due. Accordingly, as there is evidence which exists and Which would
establish a triable issue 0f fact, but for the reasons stated within the attached declaration cannot
be presented here, the statutory guidelines for a continuance under CCP 4370(h) have been met.
As such, Plaintiffs would request a one month continuance 0f the motion.
¥
O
p—a
PLAINTIFFS REQUEST A CONTINUANCE OF DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT RELATED TO THE
>—H STANDARD OF CARE ISSUE
N
p—A
Code 0f Civil Procedure § 437C (h) provides as follows:
p—a
U3
(h) If it appears from the affidavits submitted in Opposition t0 a motion
for summary judgment or summary adjudication, 0r both, that facts
g
s—A
essential t0 justify opposition may exist but cannot, for reasons stated,
be presented, the court shall deny the motion, order a continuance t0
U1
r—a
permit affidavits t0 be obtained 0r discovery t0 be had, 0r make any
other order as may be just. The application t0 continue the motion to
O\
p—I
obtain necessary discovery may also be made by ex parte motion at any
time 0n 0r before the date the opposition response to the motion is due.
fl
r—d
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As set forth within the Declaration 0f David M. Moeck, Esq., Which accompanies this
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motion, Plaintiffs had secured an expert in late 20 1 8 0r early 20 1 9 who had stated to Plaintiffs’
NO counsel that the conduct 0f Defendants herein fell below the requisite standard 0f care. This
’
NH expert had agreed to review Defendants Expert Declaration and sign a Declaration in opposition
N
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to the opinions expressed therein.
N U3 Plaintiffs’ counsel was informed for the first time 0n Monday, January 25th, that the expert
N -P was undergoing surgery 0n January 26th and would be unable t0 submit a declaration in
N U}
opposition to the motion by the January 27‘“ filing date.
z
15$ Plaintiffs’ counsel immediately contacted defense counsel and requested a short
27 continuance t0 file the opposition to this motion. Although defense counsel was not sure if he
28 //
would oppose the requested continuance, Defense counsel requested that Plaintiffs file a request
for a continuance with the court and that he would review at that time.
Given that trial in this matter is not scheduled until October 24, 2021, there is more than
sufficient time for a month continuance 0f this motion.
Based upon the above, Plaintiffs have established that “facts essential tojustify opposition
COOQONUl-PUJNH
may exist but cannot, for reasons stated, be presented” and as such, Plaintiffs have met the
criteria for an continuance set forth in CCP 437c(h). A continuance is “Virtually mandated”
Where the nonmoving party makes the requisite showing. The party need not show that essential
evidence does exist, but only that it may exist. As such, in Frazee v. Seely (2002) 95 Cal. App.
4th 627 the court held:
“Section 437C, subdivision (h) of the Code 0f Civil Procedure
provides that a motion for summary judgment 0r adjudication
shall be denied, 0r a continuance shall be granted, "[i]f it
appears from the affidavits submitted in opposition . ..that facts
essential to justify opposition may exist but cannot, for reasons
stated, then be presented . ..
."The nonmoving party seeking a
continuance "MUST SHOW: (1) the facts to be obtained are
essential t0 opposing the motion; (2) there is reason t0 believe
such facts may exist; and (3) the reasons why additional time is
needed t0 obtain thesa facts. [Citations.]" ( Wachs v. Curry
(1993) 13 Cal. App. 4th 616, 623 [16 Cal. Rptr. 2d 496].) The
decision Whether t0 grant such a continuance is Within the
discretion 0f the trial court. (FSR Brokerage, Inc. v. Superior
Court (1995) 35 Cal. App. 4th 69, 72 [41 Cal. Rptr. 2d 404].)
But as this court recently noted, the interests at stake are too
NNNNNNNNNI—dr—‘I—dy—‘y—Ip—Ap—AHHH
high to sanction the denial 0f a continuance without good
reason. "[T]echnical compliance with the procedures of
Code 0f Civil
OOQONUI#UJI\JHO\OOOQO\UIJ>UJNHO
Procedure section 437C is required to ensure
there is n0 infringement 0f a litigant's hallowed right t0 have
a dispute settled by a jury 0f his or her peers." (Bah! v. Bank
ofAmerica (2001) 89 Cal. App. 4th 389, 395 [107 Cal. Rptr. 2d
270].)
Subdivision (h) was added t0 section 437C of the Code of Civil
Procedure (hereafter section 437C) "[t]o mitigate summary
judgment’s harshness," and it mandates a continuance for the
"
nonmoving party '
"upon a good faith showing by affidavit that
a continuance is needed t0 obtain facts essential to justify
"
opposition to the motion." [Citati0n.]' [Citation] (Bah! v. Bank
ofAmerica, supra, 89 Cal. App. 4th at p. 395.) Moreover, the
affiant is not required t0 show that essential evidence does
exist, but only that it may exist. This, and the language
stating the continuance shall be granted upon such a
showing, ‘leaves little room for doubt that such continuances
are t0 be liberally granted.” (Id. at p. 633-634, emphasis
added)
#WN The court ultimately concluded:
“Because the Legislature has provided for the fairly lenient
granting 0f continuances to oppose summary judgment
motions, and the premature grant 0f summary judgment may
infringe upon the right t0 ajury trial, under these facts the court
abused its discretion by failing t0 grant the request.” (Id. at
p. 635, emphasis added)
\OOOQONM
The Court in Dee v. Vintage Petroleum, Inc. (2003) 106 Cal. App. 4th 30, 34, relied upon
the holding in Frazee in finding a trial court’s refusal t0 continue a motion for summary
10 judgment t0 be reversible error:
11 Olmstead's [Plaintiff’s Counsel] declaration explained why he
was unable t0 file the deposition 0f Marsh within the deadline
12 for opposing summary judgment. He stated that Marsh made
admissions that were ”essential" t0 Dee's case. Marsh's
13 testimony was relevant, as it supported Dee on such issues as a
hostile working environment and Whether there was a good
14 cause requirement to terminate Vintage employees. Olmstead
acted promptly so that the deposition transcript was available t0
15 the court before the summary judgment hearing.
16 At the hearing, he requested the court t0 either consider Marsh's
”
deposition 0r "provide additional time for briefing 0n the issue.
17 But the court did neither. It should have granted a continuance
so it could consider the additional evidence. (Frazee v. Seely,
18 supra, 95 Cal.App.4th at p. 633.) not doing so was reversible
error.” (Id. at p. 35)
19
20 Based upon the above, Plaintiffs request a continuance 0f a month 0n this Motion so as
21 to be able t0 submit to the court the signed declaration 0f their retained expert.
22 Dated: January 27, 2021. Quinlan, Kershaw & Fanucchi, LLP
23
24
By/m/MW‘W'
\jDaVid M. Moeck
25 Attorneys for Plaintiffs. MARY
BELEMJIAN, GREG BELEMJIAN
26
27
28
PROOF 0F SERVICE
I,the undersigned, declare:
I am a citizen ofthe United States of America, am over the age of eighteen (1 8) years, and not a party t0 the within
action. I am an employee of Quinlan, Kershaw & Fanucchi, Attorneys at Law, and my business address is 2125 Merced
Street, Fresno, California,93721.
On January 27, 2021,
O\OOOQO\Ul-PUJI\JH
I caused to be served the following document(s): PLAINTIFFS’ MEMORANDUM OF
POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFFS’ REQUEST FOR CONTINUANCE OF DEFENDANTS,
CENTRAL CALIFORNIA EAR NOSE & THROAT, AND BENJAMIN TEITELBAUM, M.D.’S, MOTION FOR
SUMMARY JUDGMENT 0n the parties involved addressed as follows:
Mark Canepa, Esq.
Daniel Martin, Esq.
WHITE |
CANEPA LLP
7690 N. Palm, Suite 105
Fresno, California 937 11
Telephone: (559) 439—0800
Facsimile: (559) 439—0802
Email: mcanepa@whitecanepa.com
dmafiin@whitecanepa.com
Represents: Defendants, Benjamin Teitelbaum, MD. and
Central California Ear,Nose & Throat
XXXXX BY ELECTRONIC MAIL: I caused such documents t0 be scanned and sent via electronic mail t0 the
electronic mail addressee(s) designated above. Service was made from the following electronic mail
address laura @gkfflrm.com. Pursuant t0 CRC Rule 2.251(b)( 1 )(B) each ofthe above designated parties
has consented to service via electronic mail by electronically filing documents with the Court in this
action.
XXXXX BY U.S. MAIL: I caused each envelope, with postage thereonfullyprepaid, t0 be placed in the United
States mail at Fresno, California.I am readily familiar with the business practice for collection and
processing ofmail in this oflice; and that in the ordinary course ofbusiness said document would be
deposited with the U.S. Postal Service in Fresno, California 0n that same day. I understand that service
NNNNNNNNNHHHHHHHHy—Ap—a
shall be presumed invalid upon motion ofa party served ifthe postal cancellation date 0r postage meter
date 0n the envelope is more than one day afier the date 0f deposit for mailing contained in this
declaration.
OCQQM-PWNHooooflQm-PWNH
BY FEDERAL EXPRESS OVERNIGHT DELIVERY: I caused each envelope, with deliveryfees
providedfor, t0 be picked up 0n thisdate by a Courier employed by Federal Express or deposited in a box
regularly maintained by Federal Express. 1 am I'eadilyfamiliar with thisfirm
’s
practicefor collectionand
’s
processing ofdocumentsfor overnight delivery and know that in the ordinary course 0fthisfzrm business
practice the document(s) described above will either be deposited ina box 0r 0therfaéility regularly
maintained by Federal Express 0r delivered t0 an authorized courier 0r driver authorized t0 receive
‘
documents 0n the same date that it is placedfor collection.
I declare under penalty of perjury under the laws 0f the State 0f Californi that the foregoingistrue and correct.
Executed at Fresno, Californiaon January 27, 2021.
( W,
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DAVID M. MOECK, Esq. -#201341 E-FILED QUINLAN, KERSHAW & FANUCCHI 1/27/2021 10:56 AM 2125 Merced Street Superior Court of California Fresno, California 93721 County of Fresno Telephone: (559) 268—8771 By: C. York, Deputy Facsimile: (559) 268-5701 UILWN Attorneys for Plaintiffs, Mary Belemjian, Greg Belemjian KOOOQQ SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF FRESNO 10 11 MARY BELEMJIAN, GREG : Case N0. 18CECG00130 BELEMJIAN, : 12 : PLAINTIFFS’ MEMORANDUM OF Plaintiffs, : POINTS AND AUTHORITIES IN SUPPORT 13 : OF PLAINTIFFS’ REQUEST FOR V. : CONTINUANCE OF DEFENDANTS, 14 : CENTRAL CALIFORNIA EAR NOSE & CENTRAL CALIFORNIA EAR, j THROAT, AND BENJAMIN 15 NOSE & THROAT, BENJAMIN TEITELBAUM, M.D.’S, MOTION FOR TEITELBAUM, M.D., and DOES 1 : ' SUMMARY JUDGMENT 16 to 10, Inclusive, : DATE: February 10, 2021 17 Defendants. : ‘ TIME: 9:00 am DEPT: 501 18 Complaint Filed: January 10, 20 1 8 19 Trial Date: October 24, 2021 20 21 22 COMES NOW, Plaintiffs, Mary Belemjian and Greg Belemjian and hereby 23 submit the following Memorandum ofPoints and Authorities in Support 0f Plaintiffs’ Request 24 for a Continuance 0f Defendants” Motion for Summary Judgment. 25 INTRODUCTION 26 Defendants, Central California Ear Nose & Throat and Benjamin Teitelbaum, M.D.’s, 27 have moved for Summary Judgment, contending neither Defendant’s conduct fell below the 28 requisite standard 0f care. Plaintiffs request a continuance ofthis motion for one month, pursuant t0 Code 0f Civil Procedure § 4370(h), based upon the matters set forth within the Declaration of David M. Moeck, Esq., filed with this request. In particular, although Plaintiffs have secured an expert Who has indicated the conduct 0f Defendants fell below the requisite standard 0f care, for an expert Declaration cannot be submitted by the date \OOOQONU‘I-DUJNr—a reasons set forth within the Declaration, opposition t0 the motion is due. Accordingly, as there is evidence which exists and Which would establish a triable issue 0f fact, but for the reasons stated within the attached declaration cannot be presented here, the statutory guidelines for a continuance under CCP 4370(h) have been met. As such, Plaintiffs would request a one month continuance 0f the motion. ¥ O p—a PLAINTIFFS REQUEST A CONTINUANCE OF DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT RELATED TO THE >—H STANDARD OF CARE ISSUE N p—A Code 0f Civil Procedure § 437C (h) provides as follows: p—a U3 (h) If it appears from the affidavits submitted in Opposition t0 a motion for summary judgment or summary adjudication, 0r both, that facts g s—A essential t0 justify opposition may exist but cannot, for reasons stated, be presented, the court shall deny the motion, order a continuance t0 U1 r—a permit affidavits t0 be obtained 0r discovery t0 be had, 0r make any other order as may be just. The application t0 continue the motion to O\ p—I obtain necessary discovery may also be made by ex parte motion at any time 0n 0r before the date the opposition response to the motion is due. fl r—d 00 r—d As set forth within the Declaration 0f David M. Moeck, Esq., Which accompanies this \O r—J motion, Plaintiffs had secured an expert in late 20 1 8 0r early 20 1 9 who had stated to Plaintiffs’ NO counsel that the conduct 0f Defendants herein fell below the requisite standard 0f care. This ’ NH expert had agreed to review Defendants Expert Declaration and sign a Declaration in opposition N [\J to the opinions expressed therein. N U3 Plaintiffs’ counsel was informed for the first time 0n Monday, January 25th, that the expert N -P was undergoing surgery 0n January 26th and would be unable t0 submit a declaration in N U} opposition to the motion by the January 27‘“ filing date. z 15$ Plaintiffs’ counsel immediately contacted defense counsel and requested a short 27 continuance t0 file the opposition to this motion. Although defense counsel was not sure if he 28 // would oppose the requested continuance, Defense counsel requested that Plaintiffs file a request for a continuance with the court and that he would review at that time. Given that trial in this matter is not scheduled until October 24, 2021, there is more than sufficient time for a month continuance 0f this motion. Based upon the above, Plaintiffs have established that “facts essential tojustify opposition COOQONUl-PUJNH may exist but cannot, for reasons stated, be presented” and as such, Plaintiffs have met the criteria for an continuance set forth in CCP 437c(h). A continuance is “Virtually mandated” Where the nonmoving party makes the requisite showing. The party need not show that essential evidence does exist, but only that it may exist. As such, in Frazee v. Seely (2002) 95 Cal. App. 4th 627 the court held: “Section 437C, subdivision (h) of the Code 0f Civil Procedure provides that a motion for summary judgment 0r adjudication shall be denied, 0r a continuance shall be granted, "[i]f it appears from the affidavits submitted in opposition . ..that facts essential to justify opposition may exist but cannot, for reasons stated, then be presented . .. ."The nonmoving party seeking a continuance "MUST SHOW: (1) the facts to be obtained are essential t0 opposing the motion; (2) there is reason t0 believe such facts may exist; and (3) the reasons why additional time is needed t0 obtain thesa facts. [Citations.]" ( Wachs v. Curry (1993) 13 Cal. App. 4th 616, 623 [16 Cal. Rptr. 2d 496].) The decision Whether t0 grant such a continuance is Within the discretion 0f the trial court. (FSR Brokerage, Inc. v. Superior Court (1995) 35 Cal. App. 4th 69, 72 [41 Cal. Rptr. 2d 404].) But as this court recently noted, the interests at stake are too NNNNNNNNNI—dr—‘I—dy—‘y—Ip—Ap—AHHH high to sanction the denial 0f a continuance without good reason. "[T]echnical compliance with the procedures of Code 0f Civil OOQONUI#UJI\JHO\OOOQO\UIJ>UJNHO Procedure section 437C is required to ensure there is n0 infringement 0f a litigant's hallowed right t0 have a dispute settled by a jury 0f his or her peers." (Bah! v. Bank ofAmerica (2001) 89 Cal. App. 4th 389, 395 [107 Cal. Rptr. 2d 270].) Subdivision (h) was added t0 section 437C of the Code of Civil Procedure (hereafter section 437C) "[t]o mitigate summary judgment’s harshness," and it mandates a continuance for the " nonmoving party ' "upon a good faith showing by affidavit that a continuance is needed t0 obtain facts essential to justify " opposition to the motion." [Citati0n.]' [Citation] (Bah! v. Bank ofAmerica, supra, 89 Cal. App. 4th at p. 395.) Moreover, the affiant is not required t0 show that essential evidence does exist, but only that it may exist. This, and the language stating the continuance shall be granted upon such a showing, ‘leaves little room for doubt that such continuances are t0 be liberally granted.” (Id. at p. 633-634, emphasis added) #WN The court ultimately concluded: “Because the Legislature has provided for the fairly lenient granting 0f continuances to oppose summary judgment motions, and the premature grant 0f summary judgment may infringe upon the right t0 ajury trial, under these facts the court abused its discretion by failing t0 grant the request.” (Id. at p. 635, emphasis added) \OOOQONM The Court in Dee v. Vintage Petroleum, Inc. (2003) 106 Cal. App. 4th 30, 34, relied upon the holding in Frazee in finding a trial court’s refusal t0 continue a motion for summary 10 judgment t0 be reversible error: 11 Olmstead's [Plaintiff’s Counsel] declaration explained why he was unable t0 file the deposition 0f Marsh within the deadline 12 for opposing summary judgment. He stated that Marsh made admissions that were ”essential" t0 Dee's case. Marsh's 13 testimony was relevant, as it supported Dee on such issues as a hostile working environment and Whether there was a good 14 cause requirement to terminate Vintage employees. Olmstead acted promptly so that the deposition transcript was available t0 15 the court before the summary judgment hearing. 16 At the hearing, he requested the court t0 either consider Marsh's ” deposition 0r "provide additional time for briefing 0n the issue. 17 But the court did neither. It should have granted a continuance so it could consider the additional evidence. (Frazee v. Seely, 18 supra, 95 Cal.App.4th at p. 633.) not doing so was reversible error.” (Id. at p. 35) 19 20 Based upon the above, Plaintiffs request a continuance 0f a month 0n this Motion so as 21 to be able t0 submit to the court the signed declaration 0f their retained expert. 22 Dated: January 27, 2021. Quinlan, Kershaw & Fanucchi, LLP 23 24 By/m/MW‘W' \jDaVid M. Moeck 25 Attorneys for Plaintiffs. MARY BELEMJIAN, GREG BELEMJIAN 26 27 28 PROOF 0F SERVICE I,the undersigned, declare: I am a citizen ofthe United States of America, am over the age of eighteen (1 8) years, and not a party t0 the within action. I am an employee of Quinlan, Kershaw & Fanucchi, Attorneys at Law, and my business address is 2125 Merced Street, Fresno, California,93721. On January 27, 2021, O\OOOQO\Ul-PUJI\JH I caused to be served the following document(s): PLAINTIFFS’ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFFS’ REQUEST FOR CONTINUANCE OF DEFENDANTS, CENTRAL CALIFORNIA EAR NOSE & THROAT, AND BENJAMIN TEITELBAUM, M.D.’S, MOTION FOR SUMMARY JUDGMENT 0n the parties involved addressed as follows: Mark Canepa, Esq. Daniel Martin, Esq. WHITE | CANEPA LLP 7690 N. Palm, Suite 105 Fresno, California 937 11 Telephone: (559) 439—0800 Facsimile: (559) 439—0802 Email: mcanepa@whitecanepa.com dmafiin@whitecanepa.com Represents: Defendants, Benjamin Teitelbaum, MD. and Central California Ear,Nose & Throat XXXXX BY ELECTRONIC MAIL: I caused such documents t0 be scanned and sent via electronic mail t0 the electronic mail addressee(s) designated above. Service was made from the following electronic mail address laura @gkfflrm.com. Pursuant t0 CRC Rule 2.251(b)( 1 )(B) each ofthe above designated parties has consented to service via electronic mail by electronically filing documents with the Court in this action. XXXXX BY U.S. MAIL: I caused each envelope, with postage thereonfullyprepaid, t0 be placed in the United States mail at Fresno, California.I am readily familiar with the business practice for collection and processing ofmail in this oflice; and that in the ordinary course ofbusiness said document would be deposited with the U.S. Postal Service in Fresno, California 0n that same day. I understand that service NNNNNNNNNHHHHHHHHy—Ap—a shall be presumed invalid upon motion ofa party served ifthe postal cancellation date 0r postage meter date 0n the envelope is more than one day afier the date 0f deposit for mailing contained in this declaration. OCQQM-PWNHooooflQm-PWNH BY FEDERAL EXPRESS OVERNIGHT DELIVERY: I caused each envelope, with deliveryfees providedfor, t0 be picked up 0n thisdate by a Courier employed by Federal Express or deposited in a box regularly maintained by Federal Express. 1 am I'eadilyfamiliar with thisfirm ’s practicefor collectionand ’s processing ofdocumentsfor overnight delivery and know that in the ordinary course 0fthisfzrm business practice the document(s) described above will either be deposited ina box 0r 0therfaéility regularly maintained by Federal Express 0r delivered t0 an authorized courier 0r driver authorized t0 receive ‘ documents 0n the same date that it is placedfor collection. I declare under penalty of perjury under the laws 0f the State 0f Californi that the foregoingistrue and correct. Executed at Fresno, Californiaon January 27, 2021. ( W, 2L r .«L’a/firLa/fiélmutfi v (7M