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1 Walter W. Whelan, Esq. (SBN 106655)
Brian D. Whelan, Esq. (SBN 256534)
2 Lucas C. Whelan, Esq. (SBN 292814)
WHELAN LAW GROUP, A Professional Corporation
3 1827 East Fir Avenue, Suite 110
Fresno, California 93720
4 Telephone: (559) 437-1079
Facsimile: (559) 437-1720
E-FILED
5 E-mail:walt@whelanlawgroup.com
3/8/2021 10:06 AM
E-mail: brian(alwhelanlawgroupxom
E-mail:lucas(wwhelanlawgroup.com
Superior Court of California
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County of Fresno
7 By: F. Braun, Deputy
8 Attorneys for: Plaintiff RODRIGO TOVAR
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SUPERIOR COURT OF THE STATE OF CALIFORNIA
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COUNTY OF FRESNO, UNLIMITED CIVIL DIVISION
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RODRIGO TOVAR, Case No. 20CECG00579
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Plaintiff, PLAINTIFF RODRIGO TOVAR’S
14 OPPOSITION T0 DEFENDANTS’ EX
v. PARTE MOTION FOR
15 RECONSIDERATION
OLIVE/BROADWAY ENTERPRISES,
16 INC., DBA BOBBY SALAZAR’S
TAQUERIA, ROBERT “BOBBY” Department Dept 501
17 SALAZAR; and DOES l through 20, Date: March 9, 2021
inclusive, Time: 3:30 p.m.
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Defendants.
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22 Plaintiff RODRIGO TOVAR (“Plaintiff”) hereby submits this opposition t0 Defendants’
23 Second Ex Parte/Motion for Reconsideration of its previously denied Ex Parte Application t0
24 continue the trial.
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Whelan Law Group,
A Professuonal
Corporauon
1827 East Fir Avenue, Suns 110
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Fresno. California 93720
Tel: 559-437-1079
Fax; 559-437-1720 PLAINTIFF RODRIGO TOVAR'S OPPOSITION TO DEFENDANTS' EX PARTE MOTION FOR
RECONSIDERATION
I.
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INTRODUCTION.
Here, Defendants are asking the Court t0 reconsider itsMarch 2, 2021 denial of its prior
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ex parte application seeking tQ continue the trial. Defendants do not meet their burden to show
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that they “could not, with reasonable diligence, have produced” their current reason (i.e.the
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inability to timely file a motion for summary judgment) at the prior hearing last week. Without
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meeting the statutory requirements for reconsideration (provided in C.C.P. Section 1008),
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Defendants’ motion for reconsideration — couched as another ex parte application to continue the
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trial— should be denied.
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II.
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DISCUSSION.
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“The name of a motion is not controlling, and, regardless of the name, a motion asking
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the trial court to decide the same matter previously ruled on is a motion for reconsideration under
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Code 0f Civil Procedure section 1008.” Powell v. Ct . of Oran ,(201 1) 197 Cal. App. 4th
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1573, 1577. “The motion, despite its label, was in substance a motion for reconsideration.”
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Lemar Homes of California. Inc. v. Stephens, (2014) 232 Cal. App. 4th 673, 681.
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Defendants’ motion should be denied because they cannot meet the requirements for a
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motion for reconsideration. A motion for reconsideration must be “based upon new or different
facts, circumstances, or law.” (Code Civ. Proc., § 1008, subd. (a).) However, “facts of Which the
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party seeking reconsideration was aware at the time of the original ruling are not ‘new or
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different.’ [Citation] In addition, a party must provide a satisfactory explanation for failing to
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offer the evidence in the first instance. [Citation.]” (In re Marriage of Hen (2009) 174
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Ca1.App.4th 1463, 1468.) To meet this burden, the party must show that they “could not, with
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reasonable diligence, have discovered or produced it at the” prior hearing. (New York Times Co.
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v. Superior Court (2005) 135 Ca1.App.4th 206, 212-21 3; accord, Even Zohar Construction &
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26 Remodeling, Inc. V. Bellaire Townhouses. LLC (2015) 61 Cal.4th 830, 833.)
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Wham Law Group,
AProfessgaml Corporal,“
1827 East Fir Avenue, Suue 110
2
Fresno, Califomla 93720
Tzl: 559743771079
Fm 559743771720 PLAINTIFF RODRIGO TOVAR'S OPPOSITION TO DEFENDANTS' EX PARTE MOTION FOR
RECONSIDERATION
Defendants fail to make this showing. The alleged reason for the need to continue the
trial inDefendants’ motion for reconsideration is that Defendants will not have time to file a
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motion for summary judgment. This fact existed last week when they filed their ex parte
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application to continue the trial; yet Defendants never raised itin last week’s ex parte
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application. They provide no satisfactory explanation for failing to do so. Moreover, Defendants
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have been repeatedly offered with the opportunity to take Plaintiff’s deposition in advance of
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their deadline, and Defendants have chosen not t0. As such, their request should be denied.
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III.
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CONCLUSION.
For the foregoing reasons, Plaintiffrespectfully requests that this Court deny Defendants' ex
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parte application/motion for reconsideration in its entirety.
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Dated: March 8, 2021 WHELAN LfA/W GR/
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A Professional C0
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By B7rian D. Whelan,
Attorneys Plaintiff RODRIGO TOVAR
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Wham Law Group,
A profesmml Carpmnon
1527EmFir Avenue, Suns no
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Fresno, Cahromia 93720
m: 5594374079
5594374720
Fax: PLAINTIFF RODRIGO TOVAR'S OPPOSITION TO DEFENDANTS' EX PARTE MOTION FOR
RECONSIDERATION
PROOF OF SERVICE
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Iam employed in the County of Fresno, State of California. I am over the age of
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18 years and not a party to this action. My business address is: Whelan Law Group, A
Professional Corporation, 1827 East Fir Avenue, Suite 110, Fresno, California 93720. On March
8, 2021, I caused to be served the within document(s): PLAINTIFF RODRIGO TOVAR’S
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OPPOSITION T0 DEFENDANTS’ EX PARTE MOTION FOR RECONSIDERATION
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( ) VIA FAX: by causing to be transmitted Via facsimile the document(s) listed above to
the fax number(s) set forth below on this date.
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7 ( ) BY HAND DELIVERY: by causing to be personally delivered the document(s) listed
above to the person(s) at the address(es) set forth below on this date.
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( ) BY MAIL: by placing the envelope, addressed to addresses below, for collection and
mailing on the date following our ordinary business practices. I am readily familiar with
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this business’ practice for collecting and processing correspondence for mailing. On the
same day that correspondence is placed for collection and mailing, itis deposited in the
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ordinary course of business with the United States Postal Service in a sealed envelope
with postage fully paid.
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12 ( ) BY PERSONAL SERVICE: by causing document(s) listed above to be personally
served to the person(s) at the address(es) set forth below.
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( ) BY EXPRESS MAIL DELIVERY: by causing document(s) listed above to be
deposited with the United States Express Mail Service for delivery to the person(s) at the
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address(es) set forth below.
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(X) BY ELECTRONIC SERVICE: by causing document(s) listed above t0 be
electronically mailed to the e-mail addresses listed below.
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17 Kristin Smith
Wood, Smith, Henning & Berman LLP
18 1401 Willow Pass Road, Suite 700
Concord, CA 94520
19 T: (925) 222-3311
M: (925) 464—0970
20 E-Mail: krsmith(tDwshblaw.com
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22 Ideclare under penalty of perjury under the laws 0f the State of California that the
23 foregoing is true and correct.
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"
Executed on March 8, 2021, atFresno, California.
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Fax? 559743771720 PLAINTIFF RODRIGO TOVAR'S OPPOSITION T0 DEFENDANTS' EX PARTE MOTION FOR
RECONSIDERATION