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  • MEZA, LARRY vs SINGH, BAJINDERBreach of Contract/Warranty: Unlimited document preview
  • MEZA, LARRY vs SINGH, BAJINDERBreach of Contract/Warranty: Unlimited document preview
  • MEZA, LARRY vs SINGH, BAJINDERBreach of Contract/Warranty: Unlimited document preview
  • MEZA, LARRY vs SINGH, BAJINDERBreach of Contract/Warranty: Unlimited document preview
  • MEZA, LARRY vs SINGH, BAJINDERBreach of Contract/Warranty: Unlimited document preview
  • MEZA, LARRY vs SINGH, BAJINDERBreach of Contract/Warranty: Unlimited document preview
  • MEZA, LARRY vs SINGH, BAJINDERBreach of Contract/Warranty: Unlimited document preview
  • MEZA, LARRY vs SINGH, BAJINDERBreach of Contract/Warranty: Unlimited document preview
						
                                

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Electronically Filed 2/19/2021 11:12 AM 1 KROGH & DECKER, LLP Superior Court of California ELIJAH UNDERWOOD, SBN 267665 County of Stanislaus 2 JASON M. ELDRED, SBN 327148 Clerk of the Court 555 Capitol Mall, Suite 700 By: Mouang Saechao, Deputy 3 Sacramento, CA 95814 916.498.9000 (p) 4 916.498.9005 (f) 5 Attorneys for Defendant and Cross-Complainant Baljinder Singh 6 7 8 THE SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 STANISLAUS COUNTY—UNLIMITED JURISDICTION 10 LARRY MEZA, ASTRID DEVERA, NADIA ) CASE NO.: CV-19-001327 YAMASHITA, IRVIN MARQUEZ, ) 11 ) ASSIGNED TO: Plaintiffs, ) THE HON. SONNY S. SANDHU 12 ) vs. ) SINGH’S OBJECTION TO—AND 13 ) MOTION TO STRIKE—PLAINTIFFS’ BALJINDER SINGH aka BJ SINGH and ) LATE-FILED NEW ARGUMENTS AND 14 DOES 1-25, ) EVIDENCE ) 15 Defendants ) SUIT FILED: MAR. 5, 2019 ) 16 ) HEARING: FEB. 19, 2021 ) TIME: 8:30 A.M. 17 ) DEPT.: 24 AND RELATED CROSS-ACTION. ) 18 ) TRIAL: AUG. 26, 2021 19 I. SUMMARY 20 Under Evidence Code section 353, as detailed below, Defendant and Cross- 21 Complainant Baljinder Singh (“Singh”) objects to—and moves to strike—Plaintiffs’ new 22 arguments and evidence in the Reply, the Reply Declarations of Nathan Miller and Astrid 23 Devera in Support of Plaintiffs Anti-SLAPP Motion, and all accompanying material. 24 Significantly, Plaintiffs’ Reply material (A) was not identified in the notice of motion; 25 (B) never alleges that “good-cause” is present for its introduction, conceding its absence; 26 (C) completely fails to identify why this information was not previously included; and (D) 27 essentially constitutes an admission that the Motion was legally inadequate. Such 28 litigation by surprise is improper. 1 SINGH’S OBJECTION TO—AND MOTION TO STRIKE— PLAINTIFFS’ LATE-FILED NEW ARGUMENTS AND EVIDENCE 1 As Plaintiff’s new arguments and evidence should have been included in the 2 original Motion, but were not, they are late-filed and (1) contravene Due Process, (2) 3 violate statute, (3) trespass on well-established precedent, (4) offend basic notions of 4 fundamental justice and fair play, and (5) would (if admitted) foster judicial inefficiency. 5 Thus, Singh respectfully requests that the Court strike and disregard these 6 improperly submitted, late-filed, new arguments and evidence. 7 II. PLAINTIFFS’ IMPROPERLY SUBMITTED NEW MATERIAL MUST BE STRICKEN 8 1. PLAINTIFFS’ LATE-FILED NEW MATERIAL VIOLATES DUE PROCESS. 9 First, Plaintiffs’ late-filed new arguments and evidence contravene Due Process. 10 New material raised for the first time in a reply brief deprives the opposing party of fair 11 notice and an adequate opportunity to respond as required by Due Process. (U.S. Const., 12 Amend. XIV; Cal. Const., Art. I, § 7; San Diego Watercrafts, Inc. v. Wells Fargo Bank (2002) 13 102 Cal.App.4th 308, 315-316 (“[D]ue process requires a party be fully advised of the 14 issues to be addressed and be given adequate notice of what facts it must rebut in order 15 to prevail.”); Campos v. Anderson (1997) 57 Cal.App.4th 784, 794, fn. 3. (“To withhold a 16 point until the closing brief deprives the respondent of the opportunity to answer itor 17 requires the effort and delay of an additional brief by permission.”).) 18 Here, Plaintiff attempts to use late-filed new arguments and evidence to support 19 their Motion, and additional sanctions requests. Singh did not have an opportunity to 20 previously review this material, fully assess it, or raise the full range of applicable legal 21 arguments and evidentiary objections. If permitted, Plaintiffs’ attempt to include this new 22 material would deprive Singh of his Constitutional Due Process rights here. 23 Significantly, Plaintiffs try to change their whole theory of the case from one that 24 the Motion was supported by Section 425.16, subdivisions (e)(3) and (e)(4), to a different 25 theory that the Motion is brought under Section 425.16, subdivision (e)(1). Moreover, 26 Plaintiffs never try to explain why this information was not submitted previously, and why 27 withholding it only until the Reply is not rank gamesmanship. As such, Plaintiff’s complete 28 failure to attempt to argue that “good cause” exists to introduce this evidence only on 2 SINGH’S OBJECTION TO—AND MOTION TO STRIKE— PLAINTIFFS’ LATE-FILED NEW ARGUMENTS AND EVIDENCE 1 Reply shows that its introduction would be an especially grievous deprivation of Due 2 Process. Thus, Plaintiffs’ late-filed new arguments and evidence are Constitutionally 3 impermissible, and should be stricken. 4 2. PLAINTIFFS’ LATE-FILED NEW MATERIAL CONTRAVENES STATUTE. 5 Second, Plaintiffs’ late-filed new arguments and evidence contravene Code of Civil 6 Procedure section 1005, subdivision (b). Section 1005, subdivision b, states that “…all 7 moving and supporting papers shall be served and filed at least 16 court days before the 8 hearing.” A moving party who withholds supporting material until the Reply, as Plaintiffs 9 have, violates not only the letter, but also the spirit, of Section 1005. 10 Here, Plaintiffs attempts to use two new supplemental declarations, and the new 11 material in the Reply to support its Motion. This material should have been included with 12 the moving papers so it could have been properly assessed. Plaintiffs’ attempt to include 13 it at this late-date violates Section 1005. Plaintiffs’ new arguments and evidence 14 essentially concede that the Motion was legally inadequate. 15 Thus, Plaintiffs’ late-filed new arguments and evidence are improper as a matter of 16 statute, and should be stricken. 17 3. PLAINTIFFS’ LATE-FILED NEW MATERIAL TRESPASSES ON WELL- 18 ESTABLISHED PRECEDENT. 19 Third, Plaintiffs’ late-filed new arguments and evidence trespass on well- 20 established precedent. The appellate courts routinely decline to consider new matter 21 raised for the first time in reply. (Landis v. Pinkertons, Inc. (2004) 122 Cal.App.4th 985, 22 993 (Pinkertons) (“[B]y raising the claim for the first time in their reply brief, defendants 23 waived it.”); Feitelberg v. Credit Suisse First Boston, LLC (2005) 134 Cal.App.4th 997, 24 1022 (Feitelberg) (“[P]laintiff’s arguments…come too late, having been made for the first 25 time in his reply brief.”); Balboa Ins. Co. v. Aguirre (1983) 149 Cal.App.3d 1002, 1010 26 (Balboa) (“The salutary [sic] rule is that points raised in a reply brief for the first time will 27 not be considered unless good cause is shown for the failure to present them before.”); 28 3 SINGH’S OBJECTION TO—AND MOTION TO STRIKE— PLAINTIFFS’ LATE-FILED NEW ARGUMENTS AND EVIDENCE 1 Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1537 (Jay) (“The general rule of motion 2 practice, which applies here, is that new evidence is not permitted with reply papers.”).) 3 Moreover, appellate courts reverse trial court decisions that rely on matters raised 4 for the first time in reply. (St. Mary v. Superior Court (Schellenberg) (2014) 223 Cal.App.4th 5 762, 782 (St. Mary) see Hernandez v. National Dairy Prods. Co. (1954) 126 Cal.App.2d 6 490, 493; Westphal v. Westphal (1943) 61 Cal.App.2d 544, 550.) In St. Mary, the moving 7 party’s original papers asked that the trial court deem that certain Requests for 8 Admissions be admitted, but argued in reply instead that certain individual RFAs were 9 deficient, which “…effectively transmuted [moving party’s] deemed admitted motion into 10 a motion to compel further responses under Section 2033.290.” (Id.) The trial court 11 granted the motion. 12 But the Appellate Court reversed. The Court of Appeal concluded that because the 13 moving party changed its arguments—and did not previously argue specific points until 14 their reply papers—it improperly deprived the opposing party from addressing such claims 15 in their opposition. (St. Mary, 223 Cal.App.4th at 782-783.) The Appellate Court 16 determined that the trial court’s entertainment of these arguments, inter alia, constituted 17 an abuse of discretion because the court’s order “potentially ‘prevents a party having a 18 fair opportunity to litigate her case.’” (Id. at 783 quoting OXY Resources California LLC v. 19 Superior Court (Calpine Natural Gas, LP) (2004) 115 Cal.App.4th 874, 886.) Thus, St. Mary 20 illustrates that the consideration of new material on Reply that changes the arguments 21 constitutes an abuse of discretion requiring the issuance of a writ. (St. Mary, 223 22 Cal.App.4th at 783.) 23 Here, Plaintiffs argument that the Motion was brought under a different section 24 than Defendant had an opportunity to oppose, two new declarations, and the 25 corresponding matter in the Reply comprise new matter. Further, Plaintiff failed to 26 identify—or even argue—that good cause exists for the inability to previously present the 27 new arguments and evidence. Indeed, well-established case law prohibits their 28 introduction now. (Pinkertons, 122 Cal.App.4th at 993; Feitelberg, 134 Cal.App.4th at 4 SINGH’S OBJECTION TO—AND MOTION TO STRIKE— PLAINTIFFS’ LATE-FILED NEW ARGUMENTS AND EVIDENCE 1 1022; Balboa, 149 Cal.App.3d at 1010; St. Mary, 223 Cal.App.4th at 783; Jay, 218 2 Cal.App.4th at 1537.) Thus, Plaintiffs’ late-filed papers are improper as a matter of 3 precedent, and such material must be stricken. 4 4. PLAINTIFF’S LATE-FILED NEW MATERIAL OFFENDS BASIC NOTIONS OF 5 FUNDAMENTAL JUSTICE AND FAIR-PLAY. 6 Fourth, Plaintiffs’ late-filed new arguments and evidence offend basic notions of 7 fundamental justice and fair-play. Statutes and case law confirm these self-evident, 8 common-sense notions of fundamental justice and fair-play. (Reichardt v. Hoffman (1997) 9 52 Cal.App.4th 754, 764.) As the Court stated in Neighbors v. Buzz Oates Enterprises 10 (1990) 217 Cal.App.3d 325, 335, fn. 8: 11 Obvious considerations of fairness in argument demand that the [moving 12 party] present his points in the Opening Brief. To withhold a point until the closing brief would deprive the [non-moving party] of his opportunity to 13 answer it or require the effort and delay of an additional brief by permission. Hence, the rule is that points raised in the reply brief for the first time will 14 not be considered, unless good reason is shown for failure to present them 15 before. 16 These sentiments are equally true, and perhaps more so, where the party seeking 17 to introduce the new evidence effectively concedes there is not even good cause for its 18 late-introduction, as Plaintiffs did here by never so arguing. Thus, Plaintiffs’ late-filed 19 papers are improper as a matter of fundamental justice and fair-play, and must be stricken. 20 5. PLAINTIFFS’ LATE-FILED NEW MATERIAL FOSTERS JUDICIAL INEFFICIENCY. 21 Finally, Plaintiffs’ late-filed new arguments and evidence foster judicial inefficiency. 22 This court—with its busy calendar—ought not to countenance moving parties reserving 23 new material until their Reply. That will only foster sloppiness, requests for continuances, 24 and resulting judicial inefficiency. As the Court stated in Heiner v. Kmart Corp. (2000) 84 25 Cal.App.4th 335, 351, “[w]e will not spend any judicial resources resolving this untimely 26 claim.” (emphasis added.) 27 A moving party should be bound by the arguments and facts presented in its 28 moving papers, and not attempt to game the system in an attempt to gain a tactical 5 SINGH’S OBJECTION TO—AND MOTION TO STRIKE— PLAINTIFFS’ LATE-FILED NEW ARGUMENTS AND EVIDENCE 1 advantage. The Court’s embrace of Plaintiffs’ late-filed new arguments and evidence 2 would lead to just such an outcome here. Instead, Plaintiffs’ late-filed papers are improper 3 as a matter of judicial efficiency, and should be stricken. 4 III. CONCLUSION 5 Plaintiffs’ late-filed new arguments and evidence (1) contravene Due Process, (2) 6 violate statute, (3) trespass on well-established precedent, (4) offend basic notions of 7 fundamental justice and fair play, and (5) would (if admitted) foster judicial inefficiency. 8 Thus, SIngh respectfully requests that the Court strike and disregard these 9 improperly submitted late-filed new arguments and evidence. 10 11 DATED: February 19, 2021 Respectfully submitted, 12 13 14 By: 15 Eli Underwood KROGH & DECKER, LLP 16 Attorneys for Baljinder Singh 17 18 19 20 21 22 23 24 25 26 27 28 6 SINGH’S OBJECTION TO—AND MOTION TO STRIKE— PLAINTIFFS’ LATE-FILED NEW ARGUMENTS AND EVIDENCE