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  • Greg Humpherys Farm & Equipment, Inc vs Mineral Resources, LLC et al(06) Unlimited Breach of Contract/Warranty document preview
  • Greg Humpherys Farm & Equipment, Inc vs Mineral Resources, LLC et al(06) Unlimited Breach of Contract/Warranty document preview
  • Greg Humpherys Farm & Equipment, Inc vs Mineral Resources, LLC et al(06) Unlimited Breach of Contract/Warranty document preview
  • Greg Humpherys Farm & Equipment, Inc vs Mineral Resources, LLC et al(06) Unlimited Breach of Contract/Warranty document preview
  • Greg Humpherys Farm & Equipment, Inc vs Mineral Resources, LLC et al(06) Unlimited Breach of Contract/Warranty document preview
  • Greg Humpherys Farm & Equipment, Inc vs Mineral Resources, LLC et al(06) Unlimited Breach of Contract/Warranty document preview
  • Greg Humpherys Farm & Equipment, Inc vs Mineral Resources, LLC et al(06) Unlimited Breach of Contract/Warranty document preview
  • Greg Humpherys Farm & Equipment, Inc vs Mineral Resources, LLC et al(06) Unlimited Breach of Contract/Warranty document preview
						
                                

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1 BURTON & SWETT Thomas M. Swett, Esq. (232423) 2 47 Main Street Sutter Creek, California 95685 3/5/2021 3 Phone: (209) 267-8301 Fax: (209) 992-4077 4 Email: tom@burtonswett.com 5 Attorneys for MRLLC Investors, L.P. 6 7 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 FOR THE COUNTY OF BUTTE 10 11 GREG HUMPHERYS FARM & EQUIPMENT, Case No.: 20CV01041 INC., 12 Plaintiff, DEFENDANT MRLLC INVESTORS, 13 L.P.’S REPLY MEMORANDUM IN Vs. SUPPORT OF MOTION FOR SUMMARY 14 JUDGMENT; DECLARATION OF MINERAL RESOURCES, LLC; THOMAS M. SWETT 15 MRLLC INVESTORS, L.P.; MRIGP, LLC; DATE: March 17, 2021 16 CHRIS VAN VELDHUIZEN; TIME: 9:00 a.m. RODNEY W. BURTON; DEPT: 1 17 CHARLES G. PETTIGREW; and DOES 1 through 20, Action Filed: May 19, 2020 18 Trial Date: August 30, 2021 Defendants. 19 20 21 INTRODUCTION 22 This litigation is and should be a simple breach of contract action between plaintiff and 23 Mineral Resources, LLC. As happens far too often, plaintiff has sued everyone that has ever been 24 associated with Mineral Resources in some fashion in the hope of coercing those ancillary defendants 25 into contributing to a settlement. However, litigation cannot be sustained on, and MRLLC Investors, 26 L.P. (“MRLLC”) should not have to continue to defendant itself against, plaintiff’s complaint; a 27 complaint based upon nothing more than conjecture, supposition, and naked wishful thinking. 28 /// -1- DEFENDANT MRLLC INVESTORS, L.P.’S REPLY MEMORANDUM IN SUPPORT SUMMARY JUDGMENT MOTION 1 Plaintiff has admitted that is has no facts whatsoever that would support a judgment in this 2 action against MRLLC. And, Mr. Pettigrew’s declaration submitted in support of MRLLC’s motion 3 for summary judgment proves that he is not liable to plaintiff. (Decl. of Pettigrew filed December 4 30, 2020.) Yet even now, in its request for a continuance, plaintiff cannot point to single fact that 5 alludes to or suggests the possible existence of any evidence that would support its case. Without 6 such a foundational factual showing, it is beyond the court’s discretion to grant the requested 7 continuance. 8 DISCUSSION 9 Plaintiff’s opposition does not contend that MRLLC has failed to meet his evidentiary burden 10 on summary judgment, nor does it attempt to make the factual showing necessary to defeat its motion. 11 Instead, plaintiff makes a legally deficient request for a continuance to allow it to continue (or start) 12 its discovery, a request that should be denied for the reasons discussed below. 13 I. Legal Standard 14 A party opposing a motion for summary judgment is not entitled to a continuance of the 15 hearing date as a matter of right; such a continuance is justified only upon the filing of a declaration 16 making the factual showing necessary to grant the request. (Code Civ. Proc., ¶ 437c, subd. (h).) It is 17 well settled that the party seeking the continuance must show: “(1) Facts establishing a likelihood 18 that controverting evidence may exist and why the information sought is essential to opposing the 19 motion; (2) The specific reasons why such evidence cannot be presented at the present time; (3) An 20 estimate of the time necessary to obtain such evidence; and (4) The specific steps or procedures the 21 opposing party intends to utilize to obtain such evidence.” (501 East 51st Street, Long-Beach-10 LLC 22 v. Kookmin Best Insurance Co., LTD. (2020) 47 Cal.App.5th 924, 939 [emphasis added]; see also 23 Cooksey v. Alexakis, M.D. (2004) 123 Cal.App.4th 246, 254; California Automobile Insurance 24 Company v. Hogan (2004) 112 Cal.App.4th 1292, 1305; American Continental Insurance Co. v. C & 25 Z Timber Co. (1987) 195 Cal.App.3d 1271, 1280.) 26 It is not enough to contend that facts may exist, for anything wholly unknown can be asserted 27 to be “possible.” Instead, specific facts must be presented to the court that “establish a likelihood that 28 the controverting evidence may exist.” (501 East 51st Street, supra, 47 Cal.App.5th at p. 939 [naked -2- DEFENDANT MRLLC INVESTORS, L.P.’S REPLY MEMORANDUM IN SUPPORT SUMMARY JUDGMENT MOTION 1 averment that “other facts may exist essential to denial” held insufficient to justify a continuance].) 2 The cases cited above make clear that plaintiff is not entitled to a continuance just because it wishes 3 to engage in additional discovery. It must present some foundational facts that would tend to show 4 that the evidence it seeks might exist; plaintiff must make an affirmative factual showing that could 5 justify a continuance. 6 The standard for this showing may rest upon the minimum standards for pleading a cause of 7 action in a complaint as a plaintiff must property plead a cause of action before it is entitled to engage 8 in discovery. The allegations against MRLLC must consist of specific, ultimate facts that would tend 9 to show its liability to plaintiff on some legal theory; legal conclusions are insufficient. (Blank v. 10 Kirwan (1985) 39 Cal.3d 311, 318.) When a plaintiff relies upon factual allegations made on 11 information and belief, which plaintiff has done in this case, the plaintiff must allege the facts that it 12 actually does possess that lead it to believe that its allegations against are true. (Doe v. City of Los 13 Angeles (2007) 42 Cal.4th 531, 551 fn.5.) Plaintiff is not allowed to simply guess or fabricate 14 allegations that is wishes were true. There must be some minimum factual basis to support its belief 15 that its allegations are in fact accurate. (Ibid.; see First Amended Complaint filed June 4, 2020.) 16 If plaintiff must make this showing in its complaint in order to properly initiate a lawsuit, it 17 must be required to make this foundational showing in its request for a continuance of this motion. 18 Indeed, by signing the first amended complaint, plaintiff’s counsel has certified that specific facts 19 exist that support the beliefs alleged therein. (Code Civ. Proc., § 128.7, subd. (b).) This standard 20 dovetails with the statutory requirement that plaintiff’s declaration must aver the facts within its 21 personal knowledge that would show a likelihood that the evidence it seeks may exist. Conjecture, 22 supposition, legal conclusions, and wishful thinking are not sufficient to justify a continuance. 23 Finally, subsumed in the remaining three elements of a sufficient declaration supporting a 24 request for a continuance is the requirement that plaintiff demonstrate that is has diligently conducted 25 discovery. (Cooksey, supra, 123 Cal.App.4th at p. 257.) Even if plaintiff could meet the first prong 26 of the required test, without a showing of such diligence, the request for a continuance should still be 27 denied. (Ibid.) 28 /// -3- DEFENDANT MRLLC INVESTORS, L.P.’S REPLY MEMORANDUM IN SUPPORT SUMMARY JUDGMENT MOTION 1 II. Analysis 2 A. Plaintiff has not made the factual showing required for a continuance. 3 Plaintiff has filed the declaration of Jameson E.P. Sheehan in support of its request for a 4 continuance. (Decl. of Jameson Sheehan filed March 3, 2021.) Therein, Mr. Sheehan reiterates the 5 legal conclusion set forth in the first amended complaint that was the recipient of one or more 6 fraudulent transfers from Mineral Resources, LLC. (Id. ¶ 2.) Mr. Sheehan makes absolutely no 7 averment as to what ultimate facts support that legal conclusion, and because those allegations were 8 made upon information and belief, he neglects to state what specific facts his belief rests upon. 9 Nowhere in the Sheehan declaration is there even an allusion to any facts upon which the court could 10 make the finding that there is a likelihood that the evidence plaintiff seeks exists at all, whatever that 11 evidence may be—there is no averment on this account either. Plaintiff has completely failed to make 12 the factual showing required to justify a continuance of this motion’s hearing date. No further analysis 13 is required—the request should be denied. 14 Without the requisite factual showing, it would be prejudicial to MRLLC and an abuse of 15 discretion to grant plaintiff a continuance. The complaint against MRLLC constitutes an abusive 16 litigation tactic and the court need not assist plaintiff in its efforts to continue executing that strategy. 17 Indeed, the filing of that pleading could be sanctionable conduct. (Code. Civ. Proc., § 128.7.) 18 Therefore, MRLLC respectfully requests that plaintiff be denied a continuance and that his motion 19 for summary judgment be granted. 20 B. Plaintiff has not been diligent in conducting its discovery. 21 Ironically, the balance of the Sheehan Declaration recounts plaintiff’s lack of discovery 22 diligence. This action was filed on May 19, 2020—now almost a year ago.1 Having heard nothing 23 from plaintiff post-answer, counsel for MRLLC commenced discovery on his behalf by serving form 24 interrogatories, requests for admission, and demands for documents on September 30, 2020. (See 25 Decl. of Sheehan ¶ 3.) Plaintiff’s response to that discovery makes it clear that plaintiff has no 26 admissible evidence to support its allegations against MRLLC. (E.g., Decl. of Thomas Swett filed 27 28 1 The date recounted by Mr. Sheehan is that of the filing of plaintiff’s first amended complaint, which was the result of discussions between counsel in advance of the filing of a demurrer to the original pleading.(Decl. of Sheehann ¶ 2.) -4- DEFENDANT MRLLC INVESTORS, L.P.’S REPLY MEMORANDUM IN SUPPORT SUMMARY JUDGMENT MOTION 1 December 30, 2020, exh. 2 at p. 6:20-7:7 [response based on information and belief without any 2 supporting facts].) Knowing its own lack of liability to plaintiff and because of plaintiff’s admitted 3 lack of support for its allegations, MRLLC filed this motion for summary judgment on December 30, 4 2020. (See Decl. of Sheehan ¶ 4.) In response, plaintiff did not take action to engage in any discovery 5 for nearly a month and when it did so, served its written discovery improperly (plaintiff’s counsel did 6 not verify electronic service addresses for the purpose of putting the parties on notice that electronic 7 service would be employed). (Id. ¶¶ 5-9.) Now, plaintiff seeks relief from the court for a train wreck 8 of its own making. 9 Plaintiff commenced this action on May 19, 2020 and sat on its figurative hands until January 10 25, 2021 with respect to discovery—eight months. Even if that discovery had been properly served 11 on January 25, the earliest plaintiff could have expected to receive responses in the mail would have 12 been March 1, 2021. (See id. ¶ 6 [February 26, 2021 was a Friday].) With the delays recent 13 experience with the U.S. Postal Service, it could have been later. Obviously, there would have been 14 no time to depose an agent of MRLLC regardless of the nature or quality of its responses, if those 15 response were received at all. It is likely that the court would have been entertaining the same request 16 for a continuance whether or not plaintiff received responses to its tardy discovery. 17 Even with its prior inattention to discovery, the engineered deadline dilemma plaintiff has 18 presented to the court could have been avoided with the simple issuance of a notice of deposition of 19 a person most knowledgeable with a demand for documents—a discovery device that may proceed 20 upon as little as a ten-day notice. (Code Civ. Proc., § 2025.270, subd. (a).) If plaintiff were actually 21 serious about developing the facts it most generally alludes to, such a notice for MRLLC should have 22 been served the first week of January 2021. 2 Not only has plaintiff failed to provide the court with 23 facts that would tend to show at least a likelihood that the evidence it seeks even exists, it has 24 completely failed to engage in the discovery process in a reasonably diligent manner. At some point, 25 the requirements of the Code of Civil Procedure matter. Therefore, a delay of the hearing on 26 27 2 If plaintiff’s request for a continuance were to be granted, the court is likely to see yet another sad story about how plaintiff’s counsel has been too busy to depose an agent of MRLLC considering the schedule Mr. Sheehan has set forth 28 in his declaration.(Decl. of Sheehan ¶ 12.) Why has MRLLC’s deposition not yet been noticed and placed on calendar? Plaintiff’s discovery “plan” is simply too little, too late. -5- DEFENDANT MRLLC INVESTORS, L.P.’S REPLY MEMORANDUM IN SUPPORT SUMMARY JUDGMENT MOTION 1 MRLLC’s motion for summary judgment is not warranted. Plaintiff’s request for a continuance 2 should be denied and MRLLC’s motion for summary judgment should be granted. 3 CONCLUSION 4 The denial of plaintiff’s request for a continuance serves the interests of justice. Plaintiff has 5 put the cart before the horse so to speak. Its allegation of a breach of contract against Mineral 6 Resources, LLC appears to be proper, but its attempt to saddle MRLLC with the burdens of this 7 litigation consist of nothing more than wishful thinking at best and economic coercion at worst. 8 Ethically, plaintiffs’ counsel should have proceeded against Mineral Resources, LLC as the only 9 defendant in this action. Thereafter, if discovery or other independent investigation led to sufficient 10 facts showing a cause of action against a third party, plaintiff’s complaint could have been amended 11 at that time. It is sanctionable conduct to join a party to a lawsuit without even the minimum factual 12 basis for asserting the mere belief that the party could be liable. As such, the court is and would be 13 justified in denying plaintiff’s request for a continuance. 14 DATED: MARCH 5, 2021 BURTON & SWETT 15 16 17 THOMAS M. SWETT, ESQ. 18 ATTORNEYS FOR MRLLC INVESTORS, L.P. 19 20 21 22 23 DECLARATION OF THOMAS M. SWETT 24 I, THOMAS M. SWETT, do hereby declare: 25 1. I am a duly licensed attorney authorized to appear before this court. I have personal 26 knowledge of the facts declared herein through my duties as counsel of record for MRLLC Investors, 27 L.P. in this action and could competently testify thereto if called as a witness. I make this declaration 28 in support of the reply memorandum of points and authorities set forth above. -6- DEFENDANT MRLLC INVESTORS, L.P.’S REPLY MEMORANDUM IN SUPPORT SUMMARY JUDGMENT MOTION 1 2. The facts recited in the memorandum above, which are incorporated herein by this 2 reference, are within my personal knowledge and are true and correct. 3 I declare under penalty of perjury under the laws of the State of California that the foregoing 4 is true and correct, and that this declaration was executed on March 5, 2021. 5 6 ___________________________________ Thomas M. Swett 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -7- DEFENDANT MRLLC INVESTORS, L.P.’S REPLY MEMORANDUM IN SUPPORT SUMMARY JUDGMENT MOTION PROOF OF SERVICE 1 2 I, Thomas M. Swett, declare: 3 I am a citizen of the United States, residing in California. My business address is 47 Main Street, Sutter Creek, California 95685. I am over the age of 18 years and not a party to this action. 4 On March 5, 2021, I served the attached, and any exhibits thereto: 5 DEFENDANT MRLLC INVESTORS, L.P.’S REPLY MEMORANDUM IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT; DECLARATION OF THOMAS M. SWETT 6 7 I caused each such document to be sent by Electronic Mail to the email addresses below, which have been verified pursuant to Code of Civil Procedure section 1010.6, subdivision (e). 8 David R. Griffith, Esq. 9 James E.P. Sheehan, Esq. ATTORNEYS FOR PLAINTIFF 1530 Humboldt Road, Suite 3 10 Chico, CA 95928 11 jameson@griffithandhorn.com david@davidgriffithlaw.com 12 davidveglia@griffithandhorn.com steven@griffithandhorn.com 13 14 I declare under the penalty of perjury under the laws of the State of California that the foregoing is true and correct and that this proof of service was executed on March 5, 2021 at Sacramento, 15 California. 16 17 Thomas M. Swett 18 19 20 21 22 23 24 25 26 27 28 -8- DEFENDANT MRLLC INVESTORS, L.P.’S REPLY MEMORANDUM IN SUPPORT SUMMARY JUDGMENT MOTION