Preview
1 BREMER WHYTE BROWN & O’MEARA LLP E-FILED
Keith G. Bremer, Esq., State Bar No. 155920 3/2/2021 3:47 PM
2 kbremer@bremerwhyte.com Superior Court of California
Karen M. Baytosh, Esq., State Bar No. 209698 County of Fresno
3 kbaytosh@bremerwhyte.com By: A. Ramos, Deputy
August B. Hotchkin, Esq., State Bar No. 278156
4 ahotchkin@bremerwhyte.com
50 West Liberty Street., Suite 1090
5 Reno, NV 89501
Telephone: (775) 440-2389
6 Facsimile: (775) 440-2390
7 Attorneys for Defendant
COLONIAL VAN & STORAGE, INC.
8
9 SUPERIOR COURT OF THE STATE OF CALIFORNIA
10 COUNTY OF FRESNO, B.F. SISK COURT
11 CRYSTAL D. DOMINGUEZ, ) Case No. 18CECG00586
)
12 Plaintiff, (Consolidated with 18CECG02656)
13 vs. Judge: Hon. Kristi Culver-Kapetan
Dept: 403
14 CAROL HOLADAY; COLONIAL VAN &
STORAGE, INC. and DOES I through 50, DEFENDANT COLONIAL VAN &
15 inclusive, STORAGE, INC.’S NOTICE OF EX-
PARTE APPLICATION TO CONTINUE
16 Defendants. TRIAL DATES, AND ALL RELATED
DISCOVERY, AND PRETRIAL
17 DEADLINES AND DATES;
RACHEL SCHINDLER, an individual and MEMORANDUM OF AUTHORITIES
18 ALEXANDRIA CORONEL, a minor by and
through her Guardian Ad Litem, RACHEL Date March 4, 2021
19 SCHINDLER, Time: 3:30 p.m.
Dept: 403
20 Plaintiffs,
Complaint Filed: February 15, 2018
21 vs. Trial Date: April 12, 2021
22 CAROL HOLADAY; COLONIAL VAN & [Filed Concurrently with Exhibits,
STORAGE, INC. and DOES I through 50, Declaration of August B. Hotchkin, and
23 inclusive, Proposed Order]
24 Defendants.
25
26 NOTICE OF EX PARTE APPLICATION
27 YOU AND EACH OF YOU WILL PLEASE TAKE NOTICE that this EX-PARTE TO
28 CONTINUE TRIAL DATES, ALL RELATED DISCOVERY AND PRETRIAL DEADLINES
BREMER WHYTE BROWN &
O’MEARA LLP
50 WEST LIBERTY
SUITE 1030
RENO, NV 89501
(775) 440-2389
1126.350 4846-1565-5647.1
1 AND DATES; MEMORANDUM OF POINTS AND AUTHORITIES is on for hearing in
2 Department 403 located at 1130 O Street, Fresno, California 93721, on the 4th day of March 2021,
3 at the hour of 3:30 p.m., or as soon thereafter as counsel may be heard.
4 The Trial in this matter is currently scheduled for April 12, 2021. The Mandatory
5 Settlement Conference was recently vacated pursuant to this Court’s General Order filed on
6 February 11, 2021. However, the Trial Readiness Conference and Trial date remains unchanged.
7 After this Court’s July 23, 2020 Order denying Colonial’s motion for summary judgment,
8 Colonial filed its “Petition for Writ of Mandate And/or Prohibition or Other Appropriate Relief”
9 with the Court of Appeal of the State of California, Fifth Appellate District on August 21, 2020
10 (“Writ”); Case No.: F081579. The Court of Appeal issued an Order to Show Cause why relief
11 prayed in the Writ should not be granted, directing the real parties in interest, Plaintiffs Crystal D.
12 Dominguez, Rachel Schindler, and Alexandria Coronel, to file a written return on or before 30 days
13 from the date of the order, and for Petitioner Colonial to file a reply to the return on or before 30
14 days from the date of the filing of the return. (Decl. of Hotchkin, ¶ 11 Ex. “B”, COA Order and
15 COA Order To Show Cause, filed November 5, 2020). The Writ petition proceeding was fully
16 briefed on February 2, 2021 and thus, the matter became a “cause,” mandating that oral argument
17 be heard and a written opinion be filed by the Court of Appeal, whether or not relief is ultimately
18 granted. (See C.C.P. §§ 1075, 1076, and 1077; Lewis v. Superior Court (1999) 19 Cal.4th 1232,
19 1241; see also Palma v. United States Industrial Fasteners, Inc. (1984) 36 C3d. 171, 177-178, 203
20 CR 626, 629-630). However, as of the filing of this Ex Parte Application, no hearing has been set
21 by the Court of Appeal. Moreover, the Court of Appeal has 90 days to issue its written opinion.
22 (Gov. Code, § 68210).
23 In the alternative, Defendant, COLONIAL VAN & STORAGE, INC. (hereinafter
24 “Colonial” or “Defendant”) will apply for an order shortening time to hear a noticed motion
25 requesting the same relief prayed for in this ex parte application. Colonial hereby requests this
26 Honorable Court to order the following:
27 1. That the April 12, 2021 trial date be stayed or continued to September 2021 at the
28 earliest, or any time thereafter that is reasonable and necessary to allow sufficient time for the
BREMER WHYTE BROWN &
O’MEARA LLP
50 WEST LIBERTY
SUITE 1030
RENO, NV 89501
2
(775) 440-2389
1126.350 4846-1565-5647.1
1 Court of Appeal to issue its written opinion on Colonial’s Writ and for the Writ proceedings to
2 conclude;
3 2. That all trial-related dates and deadlines, discovery and motion cut-off dates and
4 deadlines, be continued in accordance and corresponding with the new Trial date, once or if set.
5 This Ex Parte Application is based upon Rules of Court for the Superior Court of the State
6 of California, County of Fresno, Rules 2.1.10 and 2.7.1, as well as California Rules of Court, Rules
7 3.1200 through 3.1207, and 3.1332 et. seq., in addition to the attached Memorandum of Points and
8 Authorities, Exhibits in support of said Application, and Declaration of August, B. Hotchkin, Esq.,
9 and upon all of the pleadings and records contained in the Court file herein, and upon such oral and
10 documentary evidence as may be presented at time for hearing on this Ex Parte Application.
11 Dated: March 2, 2020 BREMER WHYTE BROWN & O’MEARA LLP
12
13 By:
Keith G. Bremer, Bar No. 155920
14 Karen M. Baytosh, Bar No. 209698
August B. Hotchkin, Bar No. 278156
15 Attorneys for Defendant
COLONIAL VAN & STORAGE, INC.
16
MEMORANDUM OF POINTS AND AUTHORITIES
17
I. INTRODUCTION
18
Colonial requests an immediate stay or continuance of the April 12, 2021 Trial date in this
19
personal injury action, and all related discovery and pre-trial deadlines, in the interest of justice and
20
to avoid the unnecessary waste of judicial resources and time and confusion given that Colonial’s
21
Writ remains pending with the Court of Appeal, has been fully briefed, and is awaiting the court’s
22
setting of oral argument. There is essentially zero chance that the Court of Appeal will render its
23
written opinion on the Writ by the April 12, 2021 Trial date. Should the Court of Appeal grant
24
Colonial’s Writ in its entirety, there will be a finding that Colonial owed no duty to plaintiffs and
25
trial will no longer be necessary. Notwithstanding, even if the Writ is granted only in part, or
26
otherwise is denied, the Court of Appeal’s written opinion will assist in narrowing or streamlining
27
the issues for trial.
28
BREMER WHYTE BROWN &
O’MEARA LLP
50 WEST LIBERTY
SUITE 1030
RENO, NV 89501
3
(775) 440-2389
1126.350 4846-1565-5647.1
1 Therefore, in light of the above, Colonial will be irreparably harmed and unfairly prejudiced
2 if the April 12, 2021 trial date is not continued while the Writ remains pending with the Court of
3 Appeal. (Decl. of Hotchkin, ¶ 17). Continuing the trial date will also conserve the parties’ and the
4 court’s resources, ensuring that the court’s limited capacity for civil trials due to the lingering
5 Covid-19 pandemic is not wasted on a trial that the Court of Appeal’s decision may render wholly
6 unnecessary. (Decl. of Hotchkin, ¶ 17).
7 II. RELEVANT PROCEDURAL HISTORY
8 Plaintiff Dominguez filed her original Complaint on February 15, 2018 against Co-
9 Defendant Carol Holaday (“Holaday”), Colonial and DOES 1 through 50, alleging four tort causes
10 of action arising from a mass shooting committed at the home of Defendant Carol Holaday
11 (“Holaday”) by her son. (Pltff. Dominguez Compl. pp. 1-8 on file herein). Plaintiff Dominguez
12 filed her operative, Second Amended Complaint on July 5, 2018, alleging three causes of action:
13 1) Negligence (against all Defendants); 2) Negligent Supervision against Holaday); and 3)
14 Intentional Infliction of Emotional Distress against all Defendants).
15 A separate Complaint was filed on August 21, 2018 on behalf of Plaintiff Schindler, as an
16 individual, and her minor child, Plaintiff Coronel, alleging the same causes of action as those in
17 Plaintiff Dominguez’s Second Amended Complaint. (See Pltffs. Schindler’s Compl. on file herein).
18 Per the parties’ stipulation, this Court ordered the Schindler matter to be consolidated with the
19 Dominguez matter (as the lead case) for all purposes pursuant to California Code of Civil
20 Procedure Section 1048. (See Stip. & Order to Consolidate Related Cases filed on October 9, 2018
21 on file herein).
22 Trial was originally scheduled for September 30, 2019. Trial was rescheduled once at
23 Colonial’s request, because certain critical discovery was unavailable and would not become
24 available before the original discovery cutoff, October 22, 2019, and likely not until after the
25 original September 30, 2019 trial date. Plaintiffs unreasonably refused to stipulate to continue
26 discovery or trial, forcing Colonial to file an ex parte application. (See Colonial’s Ex Parte App.
27 file July 5, 2019 on file herein). The Court granted Colonial’s application and extended discovery
28
BREMER WHYTE BROWN &
O’MEARA LLP
50 WEST LIBERTY
SUITE 1030
RENO, NV 89501
4
(775) 440-2389
1126.350 4846-1565-5647.1
1 and continued the trial date to June 8, 2020 (See Law and Motion Minute Order dated July 22, 2019
2 on file herein).
3 Due to the Covid-19 pandemic, however, the June 8, 2020 trial date was rescheduled, along
4 with all discovery, pursuant to this Court’s General Order. (See General Order filed April 30, 2020
5 on file herein). Trial was rescheduled for April 12, 2021, the current trial date. (Decl. of Hotchkin,
6 ¶ 8). Thus, the trial date has only been continued upon request by Colonial once. (Decl. of
7 Hotchkin, ¶ 6).
8 On August 21, 2020, Colonial filed its Writ with the Court of Appeal, seeking relief from
9 this Court’s denial of Colonial’s motion for summary judgment. (Decl. of Hotchkin, ¶ 10, See also
10 Ex. “A”, Order denying motion for summary judgment). The Writ argues that Colonial owes no
11 duty to plaintiffs in this case, and the Court of Appeal’s decision to grant the writ in whole or in
12 part would render trial unnecessary or significantly shortened. (Decl. of Hotchkin, ¶ 10). The
13 Court of Appeal issued on order to show cause on November 5, 2020, directing the plaintiffs to file
14 a written return and Colonial to file a reply to the return. (Decl. of Hotchkin, ¶ 11 Ex. “B”, COA
15 Order and COA Order To Show Cause, filed November 5, 2020). The matter was fully briefed on
16 February 2, 2021. (Decl. of Hotchkin, ¶ 12). As of the date of this filing, the Court of Appeal has
17 not set an oral argument date. (Decl. of Hotchkin, ¶ 12).
18 III. STATEMENT OF EXIGENT CIRCUMSTANCES AND IRREPARABLE
19 HARM AND GROUNDS FOR EX PARTE APPLICATION
20 There is an emergency and good cause to grant this Ex Parte Application and Colonial will
21 suffer irreparable harm if this Application is not granted because:
22 1. Exigent circumstances beyond Colonial’s control exist because Colonial’s Writ
23 remains pending before the Court of Appeal, but the Court of Appeal has not yet set a hearing date
24 for oral argument, and there is essentially zero chance that the Court of Appeal will render its
25 decision and issue a written opinion by or before the current April 12, 2021 trial date. The Writ
26 raises issues of Colonial’s duty to plaintiffs that could be dispositive of all of plaintiffs’ claims and
27 require that judgment be entered for Colonial without a trial.
28
BREMER WHYTE BROWN &
O’MEARA LLP
50 WEST LIBERTY
SUITE 1030
RENO, NV 89501
5
(775) 440-2389
1126.350 4846-1565-5647.1
1 2. If trial commences on April 12, 2021 as currently scheduled, before the Court of
2 Appeal issues its written opinion resolving the Writ, it will be a waste of judicial resources and
3 time and create confusion, especially if any part of the Writ is subsequently granted.
4 3. The pendency of the Writ necessitates that the April 12, 2021 trial date be continued
5 in order to avoid confusion of the issues, an unnecessary trial, or an inconsistent result, wasting this
6 court’s resources, subjecting jurors to an unnecessary health risk and waste of their time, and
7 causing irreparable harm and unfair prejudice to Colonial.
8 4. The discovery deadlines, pre-trial deadlines, and the original Trial date were
9 continued only twice previously, both of which were due to circumstances beyond Colonial’s
10 control. (Decl. of Hotchkin, ¶¶ 6-7).
11 5. On February 8, 2021, Colonial’s counsel reached out to all remaining parties’
12 respective counsel, suggesting that they stipulate to extend discovery and continue the trial. (See
13 Decl. of Hotchkin, ¶ 14; see also Ex. “C,” Counsel Email Exchange Dated February 8, 2021
14 through February 10, 2021).
15 6. Despite outlining in detail why there was essentially zero chance that the Court of
16 Appeal would issue its ruling on the Writ by the April 12, 2021 trial date (an argument Colonial
17 presents below), Plaintiffs’ counsel vehemently refused, without any good faith basis for their
18 refusal. Plaintiffs’ counsel also made gross misrepresentations that Colonial has “delayed” this
19 case or the writ proceedings (which is simply not true). (See Decl. of Hotchkin, ¶ 15; see also Ex.
20 “C”).
21 IV. LEGAL ARGUMENT
22 A. This Court Has Statutory Authority To Grant A Continuance Of The
Discovery and Trial Dates, and All Dates and Related Deadlines.
23
The power to determine if a continuance should be given lies within the sound discretion of
24
the trial court. (Fisher v. Larsen (1982) 138 Cal.App.3d 627, 648.) The Court has wide latitude in
25
the matter of calendar control, which includes the granting of continuances. (Park Motors, Inc. v.
26
Director, Dept. of Motor Vehicles (1975) 49 Cal.App.3d 12, 18).
27
28
BREMER WHYTE BROWN &
O’MEARA LLP
50 WEST LIBERTY
SUITE 1030
RENO, NV 89501
6
(775) 440-2389
1126.350 4846-1565-5647.1
1 Pursuant to California Rules of Court, Rule 3.1332 (b), “[a] party seeking a continuance of
2 the date set for trial, whether contested or uncontested or stipulated to by the parties, must make the
3 request for a continuance by a noticed motion or an ex parte application under the rules in chapter 4
4 of this division, with supporting declarations. The party must make the motion or application as
5 soon as reasonably practical once the necessity for the continuance is discovered.”
6 “The decision whether to grant a motion for a continuance is within the trial court’s
7 discretion and will not be disturbed on appeal absent a clear showing of abused discretion.”
8 (Juardo v. Toys “R” Us, Inc. (1993) 12 Cal.App.4th 1615, 1617; Eastwood v. Froehlich (1976) 60
9 Cal.App.3d 523, 529.) Cal Rule of Court, rule 3.1332 anticipates that said motion be made on an ex
10 parte basis, if made as soon as reasonably practicable once the necessity for continuance is
11 discovered.
12 B. Good Cause Exists for This Court To Grant A Continuance of The Trial
Date, and All Discovery and Pre-Trial Dates/Deadlines, Because The
13 Pending Writ Could Dispose of The Need For Trial.
14
California Rules of Court, Rule 3.1332 (c) provides that a court “may grant a continuance
15
only on an affirmative showing of good cause requiring the continuance.” Subdivision (c)(7) states
16
that good cause includes “a significant, unanticipated change in the status of the case as a result of
17
which the case is not ready for Trial.”
18
California Rules of Court, Rule 3.1332 (d) states that “[i]n ruling on a motion or application
19
for continuance, the court must consider all the facts and circumstances that are relevant to the
20
determination. These may include: (1) The proximity of the trial date; (2) Whether there was any
21
previous continuance, extension of time, or delay of trial due to any party; (3) The length of the
22
continuance requested; (4) The availability of alternative means to address the problem that gave
23
rise to the motion or application for a continuance; (5) The prejudice that parties or witnesses will
24
suffer as a result of the continuance; (6) If the case is entitled to a preferential trial setting, the
25
reasons for that status and whether the need for a continuance outweighs the need to avoid delay;
26
(7) The court’s calendar and the impact of granting a continuance on other pending trials; (10)
27
Whether the interests of justice are best served by a continuance, by the trial of the matter, or by
28
BREMER WHYTE BROWN &
O’MEARA LLP
50 WEST LIBERTY
SUITE 1030
RENO, NV 89501
7
(775) 440-2389
1126.350 4846-1565-5647.1
1 imposing conditions on the continuance; and (11) Any other fact or circumstance relevant to the
2 fair determination of the motion or application.”
3 This matter involves a mass shooting committed by Carol Holaday’s son, Kyle Holaday,
4 that took place at Carol Holaday’s private residence. Liability is vehemently disputed. Plaintiffs
5 allege that Colonial was directly negligent and/or vicariously liable for the intentional criminal acts
6 committed by Kyle Holaday, who was never an employee of Colonial. Specifically, Plaintiffs
7 contend that Colonial is liable because (1) Colonial owned, possessed, or controlled Carol
8 Holaday’s private home and therefore had a commensurate duty to keep the premises safe from
9 harm; and (2) Colonial, whether vicariously liable for the actions of Carol Holaday or directly
10 liable to plaintiffs as its business invitees, had a duty to protect plaintiffs from the risk of harm
11 caused by Kyle’s mass shooting.
12 Colonial filed and submitted a motion for summary judgment, arguing that Colonial owed
13 plaintiffs no duty of care in this case, which would dispose of all of plaintiffs’ claims. (See Decl. of
14 Hotchkin, ¶ 9). This Court issued an order denying the motion for summary judgment, from which
15 Colonial sought writ relief in the Court of Appeal. (See Decl. of Hotchkin, ¶¶ 9-10). The Court of
16 Appeal issued an order to show cause why the relief Colonial prayed for should not be granted,
17 directing Plaintiffs to file a written return and Colonial to file a reply. (See Decl. of Hotchkin, ¶ 11).
18 The case was fully briefed on February 2, 2021, however, the Court of Appeal has yet to set the
19 matter for oral argument – which it must do so. (See Decl. of Hotchkin, ¶ 12) (Lewis v. Superior
20 Court (1999) 19 Cal.4th 1232, 1241 [“When an appellate court issues an alternative writ or order to
21 show cause, the parties are given the opportunity for oral argument.”]).
22 A search of the Fifth District Court of Appeal’s online listing of “Tentative Calendars”
23 shows that the Court of Appeal has already scheduled arguments through March 24, 2021. (See
24 Decl. of Hotchkin, ¶ 13). Assuming the Court of Appeal will calendar its next arguments on one of
25 the listed “Tentative Calendar Dates,” the soonest the Court of Appeal could possibly hear
26 argument on Colonial’s writ petition is April 12, 2021 (i.e., the current trial date). (See Decl. of
27 Hotchkin, ¶ 13). However, even after oral argument is held and the matter is “submitted,” the
28 Court of Appeal has 90 days to issue a written opinion. (Gov. Code. § 68210). Thus, the chances
BREMER WHYTE BROWN &
O’MEARA LLP
50 WEST LIBERTY
SUITE 1030
RENO, NV 89501
8
(775) 440-2389
1126.350 4846-1565-5647.1
1 that the Court of Appeal will hear oral argument and issue its written opinion on Colonial’s writ
2 before the current April 12, 2021 trial date are essentially zero. (See Decl. of Hotchkin, ¶ 13).
3 As a result, Colonial will be irreparably harmed and unfairly prejudiced unless all current
4 discovery and pre-trial deadlines are extended and the current April 12, 2021 trial date is continued.
5 Furthermore, holding a trial without the Court of Appeal’s guidance, which could significantly
6 shorten or render unnecessary the trial, would be a waste of this court’s resources, and would
7 subject jurors to an unnecessary health risk and a waste of their time. These circumstances
8 constitute a significant unanticipated change that is outside any party’s control that merits a
9 continuance. (See Decl. of Hotchkin, ¶ 19).
10 Furthermore, a clear majority of the factors outlined for this Court’s consideration in
11 California Rules of Court, Rule 3.1332(d) also demonstrate that a continuance is necessary here to
12 avoid wasting judicial resources and protect the parties’ rights:
13 (1) Proximity of the Trial Date. Trial is currently scheduled for April 12, 2021, about a
14 month and a half away. Discovery has not yet closed. Trial is still far enough away that issuing a
15 continuance at this time will not prejudice Plaintiffs.
16 (2) Whether there was any previous continuance, extension of time, or delay of trial due
17 to any party. There was only one prior continuance of the trial date due to Colonial’s request.
18 However, the request was made due to circumstance beyond Colonial’s control as critical evidence
19 was not available to Colonial at the time. The last continuance of the trial date was due to an
20 unprecedented health crisis caused by the COVID-19 pandemic wherein this court continued all
21 civil jury trials sua sponte.
22 (3) The length of the continuance requested. The length of the continuance is
23 dependent upon the Court of Appeal issuing its written decision regarding Colonial’s writ. The
24 length of the continuance should be the amount of time necessary for the Court of Appeal to issue
25 its written decision – which is outside the control of any party. This application suggests the Court
26 could continue the trial until a date such as September 2021 and hold a status conference when the
27 new trial date approaches to determine if a further continuance is warranted because the Writ
28 proceedings have not resolved.
BREMER WHYTE BROWN &
O’MEARA LLP
50 WEST LIBERTY
SUITE 1030
RENO, NV 89501
9
(775) 440-2389
1126.350 4846-1565-5647.1
1 (4) The availability of alternative means to address the problem that gave rise to the
2 motion or application for a continuance. Neither the parties nor this court can force the Court of
3 Appeal to decide the Writ by any date certain. The only available alternative means to address the
4 problem that gave rise to this application is to continue the case until the Court of Appeal issues its
5 written decision and the writ proceedings are resolved.
6 (5) The prejudice that parties or witnesses will suffer as a result of the continuance. No
7 party will suffer any prejudice as a result of the continuance. The continuance is necessary to avoid
8 an undeniable prejudice that will occur if the trial is not continued. Should trial go forward without
9 the decision from the Court of Appeal on the writ, it will potentially result in a waste of judicial
10 resources, unnecessary incursion of significant additional attorney’s fees and costs, confusion of
11 the issues, inconsistent results. Should trial go forward now, Colonial would be forced to defend
12 against claims that may be found invalid in an expensive and unnecessary trial.
13 Moreover, the unprecedented health crisis caused by COVID-19 continues to rage on with
14 new and dangerous variants of the virus being discovered. While there are now three different
15 vaccines that have been approved for emergency distribution for the entire country, estimates
16 regarding the earliest the country will obtain herd immunity (70-90% of the population) will be by
17 this summer.1 Obviously, a jury trial on April 12, 2021 presents a significant health risk to a jury,
18 witnesses, the parties, counsel, and court personnel. Such a risk is completely unnecessary
19 especially while the writ remains pending.
20 (6) If the case is entitled to a preferential trial setting, the reasons for that status and whether
21 the need for a continuance outweighs the need to avoid delay. This case is not entitled to a
22 preferential trial setting.
23 (7) The court’s calendar and the impact of granting a continuance on other pending trials.
24 Colonial is unaware of the Court’s calendar, however, continuing this trial pending the resolution
25 of the Writ proceedings will reduce the risk that this court’s limited resources will be used to hold
26 an unnecessary trial rather than to accelerate other pending trials that are waiting to proceed.
27
28
1 (See https://www.nytimes.com/interactive/2021/02/20/us/us-herd-immunity-covid.html).
BREMER WHYTE BROWN &
O’MEARA LLP
50 WEST LIBERTY
SUITE 1030
RENO, NV 89501
10
(775) 440-2389
1126.350 4846-1565-5647.1
1 (8) Whether trial counsel is engaged in another trial. Not applicable.
2 (9) Whether all parties have stipulated to a continuance. Plaintiffs have never agreed to
3 stipulate to a trial continuance during the entire course of this litigation even though each time trial
4 was continued, good cause for the continuance existed (i.e., unavailability of critical evidence, the
5 COVID-19 pandemic, and now the pendency of the writ). Defendants’ counsel reached out to
6 Plaintiffs to stipulate to this continuance. However, as before, Plaintiffs refused to stipulate
7 without any good faith basis to support their refusal. (See Decl. of Hotchkin, ¶¶ 14-16, Ex. “C”).
8 Notably, Plaintiffs refused to acknowledge that there is almost no chance the Court of Appeal will
9 resolve the Writ before the current Trial date.
10 (10) Whether the interests of justice are best served by a continuance, by the trial of the
11 matter, or by imposing conditions on the continuance. The interests of justice are undoubtedly
12 served by a continuance of the April 12, 2021 trial. Whether Plaintiffs like it or not, Colonial’s
13 writ is pending before the Court of Appeal wherein the higher court issued an Order to Show Cause
14 why the relief requested in Colonial’s writ petition should not be granted and directed Plaintiffs to
15 file a written return. Colonial filed its reply to the returns on February 2, 2021 and, as of the date of
16 this instant application, the Court of Appeal has yet to schedule oral argument on the writ petition,
17 which is mandatory. (See Lewis v. Superior Court (1999) 19 Cal.4th 1232, 1241 [“When an
18 appellate court issues an alternative writ or order to show cause, the parties are given an
19 opportunity for oral argument.”].). In addition, with the Court of Appeal’s issuance of the order to
20 show cause, the matter became a “cause,” and a written opinion must be filed, regardless of
21 whether relief is ultimately granted or not. (See Palma v. United States Industrial Fasteners, Inc.
22 (1984) 36 Cal.3d. 171, 177-178, 203 Cal.Rptr. 626, 629-630). The Court of Appeal has 90 days to
23 issue the written opinion. (Gov. Code, § 68210). As such, there is essentially zero chance that the
24 writ will be decided on the merits before the April 12, 2021 trial date.
25 (11) Any other fact or circumstance relevant to the fair determination of the motion or
26 application. Even if the April 12, 2021 trial were to go as scheduled, it would still present a
27 significant health risk to jurors, the parties, witnesses, and this Court given that the pandemic is still
28 not under control. While vaccines are being distributed throughout the country, it is estimated that
BREMER WHYTE BROWN &
O’MEARA LLP
50 WEST LIBERTY
SUITE 1030
RENO, NV 89501
11
(775) 440-2389
1126.350 4846-1565-5647.1
1 herd immunity (70%-90%) will not be reached until sometime this summer.2 It would be
2 unconscionable to compel people to attend and participate in a April 12, 2021 trial, when there is a
3 good chance that the trial will either be unnecessary or significantly impacted by the Court of
4 Appeal’s eventual decision on the merits of the writ.
5 C. Proper Notice Was Provided for This Motion.
6 On March 2, 2021, at approximately 4:00 p.m. PST, Colonial counsel’s staff personally
7 gave timely notice of this Application via facsimile and email correspondence (a means of service
8 that was stipulated to by all parties) to all parties’ respective counsel, advising them that Colonial
9 would seek an order continuing the April 12, 2021 Trial date, and all related discovery and pre-trial
10 deadlines. (Decl. of Hotchkin, ¶ 18).
11 V. CONCLUSION
12 Colonial respectfully requests that the Court grant this Ex Parte Application and continue
13 the current April 12, 2021 Trial date along with all related discovery and pre-trial dates/deadlines,
14 pending the resolution of the Writ proceedings. If this Court deems it necessary for Colonial to
15 bring a noticed motion for this continuance, Colonial respectfully asks that this court issue an order
16 shortening time to hear that noticed motion, such that the court can decide the issue before the
17 April 12 trial date is upon the parties.
18 Dated: March 2, 2021 BREMER WHYTE BROWN & O’MEARA LLP
19
20 By:
Keith G. Bremer, Bar No. 155920
21 Karen M. Baytosh, Bar No. 209698
August B. Hotchkin, Bar No. 278156
22 Attorneys for Defendant
COLONIAL VAN & STORAGE, INC.
23
24
25
26
27
2 (See https://www.nytimes.com/interactive/2021/02/20/us/us-herd-immunity-covid.html).
28
BREMER WHYTE BROWN &
O’MEARA LLP
50 WEST LIBERTY
SUITE 1030
RENO, NV 89501
12
(775) 440-2389
1126.350 4846-1565-5647.1
Preview
1 BREMER WHYTE BROWN & O’MEARA LLP E-FILED Keith G. Bremer, Esq., State Bar No. 155920 3/2/2021 3:47 PM 2 kbremer@bremerwhyte.com Superior Court of California Karen M. Baytosh, Esq., State Bar No. 209698 County of Fresno 3 kbaytosh@bremerwhyte.com By: A. Ramos, Deputy August B. Hotchkin, Esq., State Bar No. 278156 4 ahotchkin@bremerwhyte.com 50 West Liberty Street., Suite 1090 5 Reno, NV 89501 Telephone: (775) 440-2389 6 Facsimile: (775) 440-2390 7 Attorneys for Defendant COLONIAL VAN & STORAGE, INC. 8 9 SUPERIOR COURT OF THE STATE OF CALIFORNIA 10 COUNTY OF FRESNO, B.F. SISK COURT 11 CRYSTAL D. DOMINGUEZ, ) Case No. 18CECG00586 ) 12 Plaintiff, (Consolidated with 18CECG02656) 13 vs. Judge: Hon. Kristi Culver-Kapetan Dept: 403 14 CAROL HOLADAY; COLONIAL VAN & STORAGE, INC. and DOES I through 50, DEFENDANT COLONIAL VAN & 15 inclusive, STORAGE, INC.’S NOTICE OF EX- PARTE APPLICATION TO CONTINUE 16 Defendants. TRIAL DATES, AND ALL RELATED DISCOVERY, AND PRETRIAL 17 DEADLINES AND DATES; RACHEL SCHINDLER, an individual and MEMORANDUM OF AUTHORITIES 18 ALEXANDRIA CORONEL, a minor by and through her Guardian Ad Litem, RACHEL Date March 4, 2021 19 SCHINDLER, Time: 3:30 p.m. Dept: 403 20 Plaintiffs, Complaint Filed: February 15, 2018 21 vs. Trial Date: April 12, 2021 22 CAROL HOLADAY; COLONIAL VAN & [Filed Concurrently with Exhibits, STORAGE, INC. and DOES I through 50, Declaration of August B. Hotchkin, and 23 inclusive, Proposed Order] 24 Defendants. 25 26 NOTICE OF EX PARTE APPLICATION 27 YOU AND EACH OF YOU WILL PLEASE TAKE NOTICE that this EX-PARTE TO 28 CONTINUE TRIAL DATES, ALL RELATED DISCOVERY AND PRETRIAL DEADLINES BREMER WHYTE BROWN & O’MEARA LLP 50 WEST LIBERTY SUITE 1030 RENO, NV 89501 (775) 440-2389 1126.350 4846-1565-5647.1 1 AND DATES; MEMORANDUM OF POINTS AND AUTHORITIES is on for hearing in 2 Department 403 located at 1130 O Street, Fresno, California 93721, on the 4th day of March 2021, 3 at the hour of 3:30 p.m., or as soon thereafter as counsel may be heard. 4 The Trial in this matter is currently scheduled for April 12, 2021. The Mandatory 5 Settlement Conference was recently vacated pursuant to this Court’s General Order filed on 6 February 11, 2021. However, the Trial Readiness Conference and Trial date remains unchanged. 7 After this Court’s July 23, 2020 Order denying Colonial’s motion for summary judgment, 8 Colonial filed its “Petition for Writ of Mandate And/or Prohibition or Other Appropriate Relief” 9 with the Court of Appeal of the State of California, Fifth Appellate District on August 21, 2020 10 (“Writ”); Case No.: F081579. The Court of Appeal issued an Order to Show Cause why relief 11 prayed in the Writ should not be granted, directing the real parties in interest, Plaintiffs Crystal D. 12 Dominguez, Rachel Schindler, and Alexandria Coronel, to file a written return on or before 30 days 13 from the date of the order, and for Petitioner Colonial to file a reply to the return on or before 30 14 days from the date of the filing of the return. (Decl. of Hotchkin, ¶ 11 Ex. “B”, COA Order and 15 COA Order To Show Cause, filed November 5, 2020). The Writ petition proceeding was fully 16 briefed on February 2, 2021 and thus, the matter became a “cause,” mandating that oral argument 17 be heard and a written opinion be filed by the Court of Appeal, whether or not relief is ultimately 18 granted. (See C.C.P. §§ 1075, 1076, and 1077; Lewis v. Superior Court (1999) 19 Cal.4th 1232, 19 1241; see also Palma v. United States Industrial Fasteners, Inc. (1984) 36 C3d. 171, 177-178, 203 20 CR 626, 629-630). However, as of the filing of this Ex Parte Application, no hearing has been set 21 by the Court of Appeal. Moreover, the Court of Appeal has 90 days to issue its written opinion. 22 (Gov. Code, § 68210). 23 In the alternative, Defendant, COLONIAL VAN & STORAGE, INC. (hereinafter 24 “Colonial” or “Defendant”) will apply for an order shortening time to hear a noticed motion 25 requesting the same relief prayed for in this ex parte application. Colonial hereby requests this 26 Honorable Court to order the following: 27 1. That the April 12, 2021 trial date be stayed or continued to September 2021 at the 28 earliest, or any time thereafter that is reasonable and necessary to allow sufficient time for the BREMER WHYTE BROWN & O’MEARA LLP 50 WEST LIBERTY SUITE 1030 RENO, NV 89501 2 (775) 440-2389 1126.350 4846-1565-5647.1 1 Court of Appeal to issue its written opinion on Colonial’s Writ and for the Writ proceedings to 2 conclude; 3 2. That all trial-related dates and deadlines, discovery and motion cut-off dates and 4 deadlines, be continued in accordance and corresponding with the new Trial date, once or if set. 5 This Ex Parte Application is based upon Rules of Court for the Superior Court of the State 6 of California, County of Fresno, Rules 2.1.10 and 2.7.1, as well as California Rules of Court, Rules 7 3.1200 through 3.1207, and 3.1332 et. seq., in addition to the attached Memorandum of Points and 8 Authorities, Exhibits in support of said Application, and Declaration of August, B. Hotchkin, Esq., 9 and upon all of the pleadings and records contained in the Court file herein, and upon such oral and 10 documentary evidence as may be presented at time for hearing on this Ex Parte Application. 11 Dated: March 2, 2020 BREMER WHYTE BROWN & O’MEARA LLP 12 13 By: Keith G. Bremer, Bar No. 155920 14 Karen M. Baytosh, Bar No. 209698 August B. Hotchkin, Bar No. 278156 15 Attorneys for Defendant COLONIAL VAN & STORAGE, INC. 16 MEMORANDUM OF POINTS AND AUTHORITIES 17 I. INTRODUCTION 18 Colonial requests an immediate stay or continuance of the April 12, 2021 Trial date in this 19 personal injury action, and all related discovery and pre-trial deadlines, in the interest of justice and 20 to avoid the unnecessary waste of judicial resources and time and confusion given that Colonial’s 21 Writ remains pending with the Court of Appeal, has been fully briefed, and is awaiting the court’s 22 setting of oral argument. There is essentially zero chance that the Court of Appeal will render its 23 written opinion on the Writ by the April 12, 2021 Trial date. Should the Court of Appeal grant 24 Colonial’s Writ in its entirety, there will be a finding that Colonial owed no duty to plaintiffs and 25 trial will no longer be necessary. Notwithstanding, even if the Writ is granted only in part, or 26 otherwise is denied, the Court of Appeal’s written opinion will assist in narrowing or streamlining 27 the issues for trial. 28 BREMER WHYTE BROWN & O’MEARA LLP 50 WEST LIBERTY SUITE 1030 RENO, NV 89501 3 (775) 440-2389 1126.350 4846-1565-5647.1 1 Therefore, in light of the above, Colonial will be irreparably harmed and unfairly prejudiced 2 if the April 12, 2021 trial date is not continued while the Writ remains pending with the Court of 3 Appeal. (Decl. of Hotchkin, ¶ 17). Continuing the trial date will also conserve the parties’ and the 4 court’s resources, ensuring that the court’s limited capacity for civil trials due to the lingering 5 Covid-19 pandemic is not wasted on a trial that the Court of Appeal’s decision may render wholly 6 unnecessary. (Decl. of Hotchkin, ¶ 17). 7 II. RELEVANT PROCEDURAL HISTORY 8 Plaintiff Dominguez filed her original Complaint on February 15, 2018 against Co- 9 Defendant Carol Holaday (“Holaday”), Colonial and DOES 1 through 50, alleging four tort causes 10 of action arising from a mass shooting committed at the home of Defendant Carol Holaday 11 (“Holaday”) by her son. (Pltff. Dominguez Compl. pp. 1-8 on file herein). Plaintiff Dominguez 12 filed her operative, Second Amended Complaint on July 5, 2018, alleging three causes of action: 13 1) Negligence (against all Defendants); 2) Negligent Supervision against Holaday); and 3) 14 Intentional Infliction of Emotional Distress against all Defendants). 15 A separate Complaint was filed on August 21, 2018 on behalf of Plaintiff Schindler, as an 16 individual, and her minor child, Plaintiff Coronel, alleging the same causes of action as those in 17 Plaintiff Dominguez’s Second Amended Complaint. (See Pltffs. Schindler’s Compl. on file herein). 18 Per the parties’ stipulation, this Court ordered the Schindler matter to be consolidated with the 19 Dominguez matter (as the lead case) for all purposes pursuant to California Code of Civil 20 Procedure Section 1048. (See Stip. & Order to Consolidate Related Cases filed on October 9, 2018 21 on file herein). 22 Trial was originally scheduled for September 30, 2019. Trial was rescheduled once at 23 Colonial’s request, because certain critical discovery was unavailable and would not become 24 available before the original discovery cutoff, October 22, 2019, and likely not until after the 25 original September 30, 2019 trial date. Plaintiffs unreasonably refused to stipulate to continue 26 discovery or trial, forcing Colonial to file an ex parte application. (See Colonial’s Ex Parte App. 27 file July 5, 2019 on file herein). The Court granted Colonial’s application and extended discovery 28 BREMER WHYTE BROWN & O’MEARA LLP 50 WEST LIBERTY SUITE 1030 RENO, NV 89501 4 (775) 440-2389 1126.350 4846-1565-5647.1 1 and continued the trial date to June 8, 2020 (See Law and Motion Minute Order dated July 22, 2019 2 on file herein). 3 Due to the Covid-19 pandemic, however, the June 8, 2020 trial date was rescheduled, along 4 with all discovery, pursuant to this Court’s General Order. (See General Order filed April 30, 2020 5 on file herein). Trial was rescheduled for April 12, 2021, the current trial date. (Decl. of Hotchkin, 6 ¶ 8). Thus, the trial date has only been continued upon request by Colonial once. (Decl. of 7 Hotchkin, ¶ 6). 8 On August 21, 2020, Colonial filed its Writ with the Court of Appeal, seeking relief from 9 this Court’s denial of Colonial’s motion for summary judgment. (Decl. of Hotchkin, ¶ 10, See also 10 Ex. “A”, Order denying motion for summary judgment). The Writ argues that Colonial owes no 11 duty to plaintiffs in this case, and the Court of Appeal’s decision to grant the writ in whole or in 12 part would render trial unnecessary or significantly shortened. (Decl. of Hotchkin, ¶ 10). The 13 Court of Appeal issued on order to show cause on November 5, 2020, directing the plaintiffs to file 14 a written return and Colonial to file a reply to the return. (Decl. of Hotchkin, ¶ 11 Ex. “B”, COA 15 Order and COA Order To Show Cause, filed November 5, 2020). The matter was fully briefed on 16 February 2, 2021. (Decl. of Hotchkin, ¶ 12). As of the date of this filing, the Court of Appeal has 17 not set an oral argument date. (Decl. of Hotchkin, ¶ 12). 18 III. STATEMENT OF EXIGENT CIRCUMSTANCES AND IRREPARABLE 19 HARM AND GROUNDS FOR EX PARTE APPLICATION 20 There is an emergency and good cause to grant this Ex Parte Application and Colonial will 21 suffer irreparable harm if this Application is not granted because: 22 1. Exigent circumstances beyond Colonial’s control exist because Colonial’s Writ 23 remains pending before the Court of Appeal, but the Court of Appeal has not yet set a hearing date 24 for oral argument, and there is essentially zero chance that the Court of Appeal will render its 25 decision and issue a written opinion by or before the current April 12, 2021 trial date. The Writ 26 raises issues of Colonial’s duty to plaintiffs that could be dispositive of all of plaintiffs’ claims and 27 require that judgment be entered for Colonial without a trial. 28 BREMER WHYTE BROWN & O’MEARA LLP 50 WEST LIBERTY SUITE 1030 RENO, NV 89501 5 (775) 440-2389 1126.350 4846-1565-5647.1 1 2. If trial commences on April 12, 2021 as currently scheduled, before the Court of 2 Appeal issues its written opinion resolving the Writ, it will be a waste of judicial resources and 3 time and create confusion, especially if any part of the Writ is subsequently granted. 4 3. The pendency of the Writ necessitates that the April 12, 2021 trial date be continued 5 in order to avoid confusion of the issues, an unnecessary trial, or an inconsistent result, wasting this 6 court’s resources, subjecting jurors to an unnecessary health risk and waste of their time, and 7 causing irreparable harm and unfair prejudice to Colonial. 8 4. The discovery deadlines, pre-trial deadlines, and the original Trial date were 9 continued only twice previously, both of which were due to circumstances beyond Colonial’s 10 control. (Decl. of Hotchkin, ¶¶ 6-7). 11 5. On February 8, 2021, Colonial’s counsel reached out to all remaining parties’ 12 respective counsel, suggesting that they stipulate to extend discovery and continue the trial. (See 13 Decl. of Hotchkin, ¶ 14; see also Ex. “C,” Counsel Email Exchange Dated February 8, 2021 14 through February 10, 2021). 15 6. Despite outlining in detail why there was essentially zero chance that the Court of 16 Appeal would issue its ruling on the Writ by the April 12, 2021 trial date (an argument Colonial 17 presents below), Plaintiffs’ counsel vehemently refused, without any good faith basis for their 18 refusal. Plaintiffs’ counsel also made gross misrepresentations that Colonial has “delayed” this 19 case or the writ proceedings (which is simply not true). (See Decl. of Hotchkin, ¶ 15; see also Ex. 20 “C”). 21 IV. LEGAL ARGUMENT 22 A. This Court Has Statutory Authority To Grant A Continuance Of The Discovery and Trial Dates, and All Dates and Related Deadlines. 23 The power to determine if a continuance should be given lies within the sound discretion of 24 the trial court. (Fisher v. Larsen (1982) 138 Cal.App.3d 627, 648.) The Court has wide latitude in 25 the matter of calendar control, which includes the granting of continuances. (Park Motors, Inc. v. 26 Director, Dept. of Motor Vehicles (1975) 49 Cal.App.3d 12, 18). 27 28 BREMER WHYTE BROWN & O’MEARA LLP 50 WEST LIBERTY SUITE 1030 RENO, NV 89501 6 (775) 440-2389 1126.350 4846-1565-5647.1 1 Pursuant to California Rules of Court, Rule 3.1332 (b), “[a] party seeking a continuance of 2 the date set for trial, whether contested or uncontested or stipulated to by the parties, must make the 3 request for a continuance by a noticed motion or an ex parte application under the rules in chapter 4 4 of this division, with supporting declarations. The party must make the motion or application as 5 soon as reasonably practical once the necessity for the continuance is discovered.” 6 “The decision whether to grant a motion for a continuance is within the trial court’s 7 discretion and will not be disturbed on appeal absent a clear showing of abused discretion.” 8 (Juardo v. Toys “R” Us, Inc. (1993) 12 Cal.App.4th 1615, 1617; Eastwood v. Froehlich (1976) 60 9 Cal.App.3d 523, 529.) Cal Rule of Court, rule 3.1332 anticipates that said motion be made on an ex 10 parte basis, if made as soon as reasonably practicable once the necessity for continuance is 11 discovered. 12 B. Good Cause Exists for This Court To Grant A Continuance of The Trial Date, and All Discovery and Pre-Trial Dates/Deadlines, Because The 13 Pending Writ Could Dispose of The Need For Trial. 14 California Rules of Court, Rule 3.1332 (c) provides that a court “may grant a continuance 15 only on an affirmative showing of good cause requiring the continuance.” Subdivision (c)(7) states 16 that good cause includes “a significant, unanticipated change in the status of the case as a result of 17 which the case is not ready for Trial.” 18 California Rules of Court, Rule 3.1332 (d) states that “[i]n ruling on a motion or application 19 for continuance, the court must consider all the facts and circumstances that are relevant to the 20 determination. These may include: (1) The proximity of the trial date; (2) Whether there was any 21 previous continuance, extension of time, or delay of trial due to any party; (3) The length of the 22 continuance requested; (4) The availability of alternative means to address the problem that gave 23 rise to the motion or application for a continuance; (5) The prejudice that parties or witnesses will 24 suffer as a result of the continuance; (6) If the case is entitled to a preferential trial setting, the 25 reasons for that status and whether the need for a continuance outweighs the need to avoid delay; 26 (7) The court’s calendar and the impact of granting a continuance on other pending trials; (10) 27 Whether the interests of justice are best served by a continuance, by the trial of the matter, or by 28 BREMER WHYTE BROWN & O’MEARA LLP 50 WEST LIBERTY SUITE 1030 RENO, NV 89501 7 (775) 440-2389 1126.350 4846-1565-5647.1 1 imposing conditions on the continuance; and (11) Any other fact or circumstance relevant to the 2 fair determination of the motion or application.” 3 This matter involves a mass shooting committed by Carol Holaday’s son, Kyle Holaday, 4 that took place at Carol Holaday’s private residence. Liability is vehemently disputed. Plaintiffs 5 allege that Colonial was directly negligent and/or vicariously liable for the intentional criminal acts 6 committed by Kyle Holaday, who was never an employee of Colonial. Specifically, Plaintiffs 7 contend that Colonial is liable because (1) Colonial owned, possessed, or controlled Carol 8 Holaday’s private home and therefore had a commensurate duty to keep the premises safe from 9 harm; and (2) Colonial, whether vicariously liable for the actions of Carol Holaday or directly 10 liable to plaintiffs as its business invitees, had a duty to protect plaintiffs from the risk of harm 11 caused by Kyle’s mass shooting. 12 Colonial filed and submitted a motion for summary judgment, arguing that Colonial owed 13 plaintiffs no duty of care in this case, which would dispose of all of plaintiffs’ claims. (See Decl. of 14 Hotchkin, ¶ 9). This Court issued an order denying the motion for summary judgment, from which 15 Colonial sought writ relief in the Court of Appeal. (See Decl. of Hotchkin, ¶¶ 9-10). The Court of 16 Appeal issued an order to show cause why the relief Colonial prayed for should not be granted, 17 directing Plaintiffs to file a written return and Colonial to file a reply. (See Decl. of Hotchkin, ¶ 11). 18 The case was fully briefed on February 2, 2021, however, the Court of Appeal has yet to set the 19 matter for oral argument – which it must do so. (See Decl. of Hotchkin, ¶ 12) (Lewis v. Superior 20 Court (1999) 19 Cal.4th 1232, 1241 [“When an appellate court issues an alternative writ or order to 21 show cause, the parties are given the opportunity for oral argument.”]). 22 A search of the Fifth District Court of Appeal’s online listing of “Tentative Calendars” 23 shows that the Court of Appeal has already scheduled arguments through March 24, 2021. (See 24 Decl. of Hotchkin, ¶ 13). Assuming the Court of Appeal will calendar its next arguments on one of 25 the listed “Tentative Calendar Dates,” the soonest the Court of Appeal could possibly hear 26 argument on Colonial’s writ petition is April 12, 2021 (i.e., the current trial date). (See Decl. of 27 Hotchkin, ¶ 13). However, even after oral argument is held and the matter is “submitted,” the 28 Court of Appeal has 90 days to issue a written opinion. (Gov. Code. § 68210). Thus, the chances BREMER WHYTE BROWN & O’MEARA LLP 50 WEST LIBERTY SUITE 1030 RENO, NV 89501 8 (775) 440-2389 1126.350 4846-1565-5647.1 1 that the Court of Appeal will hear oral argument and issue its written opinion on Colonial’s writ 2 before the current April 12, 2021 trial date are essentially zero. (See Decl. of Hotchkin, ¶ 13). 3 As a result, Colonial will be irreparably harmed and unfairly prejudiced unless all current 4 discovery and pre-trial deadlines are extended and the current April 12, 2021 trial date is continued. 5 Furthermore, holding a trial without the Court of Appeal’s guidance, which could significantly 6 shorten or render unnecessary the trial, would be a waste of this court’s resources, and would 7 subject jurors to an unnecessary health risk and a waste of their time. These circumstances 8 constitute a significant unanticipated change that is outside any party’s control that merits a 9 continuance. (See Decl. of Hotchkin, ¶ 19). 10 Furthermore, a clear majority of the factors outlined for this Court’s consideration in 11 California Rules of Court, Rule 3.1332(d) also demonstrate that a continuance is necessary here to 12 avoid wasting judicial resources and protect the parties’ rights: 13 (1) Proximity of the Trial Date. Trial is currently scheduled for April 12, 2021, about a 14 month and a half away. Discovery has not yet closed. Trial is still far enough away that issuing a 15 continuance at this time will not prejudice Plaintiffs. 16 (2) Whether there was any previous continuance, extension of time, or delay of trial due 17 to any party. There was only one prior continuance of the trial date due to Colonial’s request. 18 However, the request was made due to circumstance beyond Colonial’s control as critical evidence 19 was not available to Colonial at the time. The last continuance of the trial date was due to an 20 unprecedented health crisis caused by the COVID-19 pandemic wherein this court continued all 21 civil jury trials sua sponte. 22 (3) The length of the continuance requested. The length of the continuance is 23 dependent upon the Court of Appeal issuing its written decision regarding Colonial’s writ. The 24 length of the continuance should be the amount of time necessary for the Court of Appeal to issue 25 its written decision – which is outside the control of any party. This application suggests the Court 26 could continue the trial until a date such as September 2021 and hold a status conference when the 27 new trial date approaches to determine if a further continuance is warranted because the Writ 28 proceedings have not resolved. BREMER WHYTE BROWN & O’MEARA LLP 50 WEST LIBERTY SUITE 1030 RENO, NV 89501 9 (775) 440-2389 1126.350 4846-1565-5647.1 1 (4) The availability of alternative means to address the problem that gave rise to the 2 motion or application for a continuance. Neither the parties nor this court can force the Court of 3 Appeal to decide the Writ by any date certain. The only available alternative means to address the 4 problem that gave rise to this application is to continue the case until the Court of Appeal issues its 5 written decision and the writ proceedings are resolved. 6 (5) The prejudice that parties or witnesses will suffer as a result of the continuance. No 7 party will suffer any prejudice as a result of the continuance. The continuance is necessary to avoid 8 an undeniable prejudice that will occur if the trial is not continued. Should trial go forward without 9 the decision from the Court of Appeal on the writ, it will potentially result in a waste of judicial 10 resources, unnecessary incursion of significant additional attorney’s fees and costs, confusion of 11 the issues, inconsistent results. Should trial go forward now, Colonial would be forced to defend 12 against claims that may be found invalid in an expensive and unnecessary trial. 13 Moreover, the unprecedented health crisis caused by COVID-19 continues to rage on with 14 new and dangerous variants of the virus being discovered. While there are now three different 15 vaccines that have been approved for emergency distribution for the entire country, estimates 16 regarding the earliest the country will obtain herd immunity (70-90% of the population) will be by 17 this summer.1 Obviously, a jury trial on April 12, 2021 presents a significant health risk to a jury, 18 witnesses, the parties, counsel, and court personnel. Such a risk is completely unnecessary 19 especially while the writ remains pending. 20 (6) If the case is entitled to a preferential trial setting, the reasons for that status and whether 21 the need for a continuance outweighs the need to avoid delay. This case is not entitled to a 22 preferential trial setting. 23 (7) The court’s calendar and the impact of granting a continuance on other pending trials. 24 Colonial is unaware of the Court’s calendar, however, continuing this trial pending the resolution 25 of the Writ proceedings will reduce the risk that this court’s limited resources will be used to hold 26 an unnecessary trial rather than to accelerate other pending trials that are waiting to proceed. 27 28 1 (See https://www.nytimes.com/interactive/2021/02/20/us/us-herd-immunity-covid.html). BREMER WHYTE BROWN & O’MEARA LLP 50 WEST LIBERTY SUITE 1030 RENO, NV 89501 10 (775) 440-2389 1126.350 4846-1565-5647.1 1 (8) Whether trial counsel is engaged in another trial. Not applicable. 2 (9) Whether all parties have stipulated to a continuance. Plaintiffs have never agreed to 3 stipulate to a trial continuance during the entire course of this litigation even though each time trial 4 was continued, good cause for the continuance existed (i.e., unavailability of critical evidence, the 5 COVID-19 pandemic, and now the pendency of the writ). Defendants’ counsel reached out to 6 Plaintiffs to stipulate to this continuance. However, as before, Plaintiffs refused to stipulate 7 without any good faith basis to support their refusal. (See Decl. of Hotchkin, ¶¶ 14-16, Ex. “C”). 8 Notably, Plaintiffs refused to acknowledge that there is almost no chance the Court of Appeal will 9 resolve the Writ before the current Trial date. 10 (10) Whether the interests of justice are best served by a continuance, by the trial of the 11 matter, or by imposing conditions on the continuance. The interests of justice are undoubtedly 12 served by a continuance of the April 12, 2021 trial. Whether Plaintiffs like it or not, Colonial’s 13 writ is pending before the Court of Appeal wherein the higher court issued an Order to Show Cause 14 why the relief requested in Colonial’s writ petition should not be granted and directed Plaintiffs to 15 file a written return. Colonial filed its reply to the returns on February 2, 2021 and, as of the date of 16 this instant application, the Court of Appeal has yet to schedule oral argument on the writ petition, 17 which is mandatory. (See Lewis v. Superior Court (1999) 19 Cal.4th 1232, 1241 [“When an 18 appellate court issues an alternative writ or order to show cause, the parties are given an 19 opportunity for oral argument.”].). In addition, with the Court of Appeal’s issuance of the order to 20 show cause, the matter became a “cause,” and a written opinion must be filed, regardless of 21 whether relief is ultimately granted or not. (See Palma v. United States Industrial Fasteners, Inc. 22 (1984) 36 Cal.3d. 171, 177-178, 203 Cal.Rptr. 626, 629-630). The Court of Appeal has 90 days to 23 issue the written opinion. (Gov. Code, § 68210). As such, there is essentially zero chance that the 24 writ will be decided on the merits before the April 12, 2021 trial date. 25 (11) Any other fact or circumstance relevant to the fair determination of the motion or 26 application. Even if the April 12, 2021 trial were to go as scheduled, it would still present a 27 significant health risk to jurors, the parties, witnesses, and this Court given that the pandemic is still 28 not under control. While vaccines are being distributed throughout the country, it is estimated that BREMER WHYTE BROWN & O’MEARA LLP 50 WEST LIBERTY SUITE 1030 RENO, NV 89501 11 (775) 440-2389 1126.350 4846-1565-5647.1 1 herd immunity (70%-90%) will not be reached until sometime this summer.2 It would be 2 unconscionable to compel people to attend and participate in a April 12, 2021 trial, when there is a 3 good chance that the trial will either be unnecessary or significantly impacted by the Court of 4 Appeal’s eventual decision on the merits of the writ. 5 C. Proper Notice Was Provided for This Motion. 6 On March 2, 2021, at approximately 4:00 p.m. PST, Colonial counsel’s staff personally 7 gave timely notice of this Application via facsimile and email correspondence (a means of service 8 that was stipulated to by all parties) to all parties’ respective counsel, advising them that Colonial 9 would seek an order continuing the April 12, 2021 Trial date, and all related discovery and pre-trial 10 deadlines. (Decl. of Hotchkin, ¶ 18). 11 V. CONCLUSION 12 Colonial respectfully requests that the Court grant this Ex Parte Application and continue 13 the current April 12, 2021 Trial date along with all related discovery and pre-trial dates/deadlines, 14 pending the resolution of the Writ proceedings. If this Court deems it necessary for Colonial to 15 bring a noticed motion for this continuance, Colonial respectfully asks that this court issue an order 16 shortening time to hear that noticed motion, such that the court can decide the issue before the 17 April 12 trial date is upon the parties. 18 Dated: March 2, 2021 BREMER WHYTE BROWN & O’MEARA LLP 19 20 By: Keith G. Bremer, Bar No. 155920 21 Karen M. Baytosh, Bar No. 209698 August B. Hotchkin, Bar No. 278156 22 Attorneys for Defendant COLONIAL VAN & STORAGE, INC. 23 24 25 26 27 2 (See https://www.nytimes.com/interactive/2021/02/20/us/us-herd-immunity-covid.html). 28 BREMER WHYTE BROWN & O’MEARA LLP 50 WEST LIBERTY SUITE 1030 RENO, NV 89501 12 (775) 440-2389 1126.350 4846-1565-5647.1