Preview
1 MARY K. TALMACHOFF, STATE BAR NO. 258797
BATES WINTER & TALMACHOFF LLP
2 925 Highland Pointe Drive, Suite 380
Roseville, CA 95678 1/20/2021
3 Telephone: (916) 789-7080
Facsimile: (916) 789-7090
4
Attorneys for Defendants LUCILLE KASHANI
5
and GAVIN ALEXANDER KASHANI
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7
8 SUPERIOR COURT OF CALIFORNIA
9 COUNTY OF BUTTE
10
11 OTONIEL ESPINOZA, ) Case No. 19CV02961
)
12 Plaintiff, ) DEFENDANTS’ MEMORANDUM OF
) POINTS AND AUTHORITIES IN
13 v. ) SUPPORT OF MOTION TO CONTINUE
) TRIAL DATE AND ALL RELATED
14 GAVIN ALEXANDER KASHANI; ) DATES
LUCILLE KASHANI; and DOES 1 TO 10, )
15 ) Date: February 17, 2021
16 Defendants. ) Time: 9:00 a.m.
) Dept.: TBD
17 )
) Assigned For All Purposes to:
18 ) Hon. Judge Tamara L. Mosbarger – Dept. 1
)
19 ) Complaint Filed: October 2, 2019
) Trial Date: March 22, 2021
20
21 I. INTRODUCTION
22 Defendants GAVIN ALEXANDER KASHANI and LUCILLE KASHANI,
23 (“Defendants”) move this Court pursuant to Code of Civil Procedure sections 1005(b) and
24 2024.050 and California Rules of Court Rule 3.1332 for a continuance of the currently set trial
25 date of March 22, 2021, at 8:00 a.m., in Department 1, and all deadlines to run commensurate
26 with the new trial date. As discussed more fully below, Defendants request a six-month
27 continuance.
28 ///
____________________________________________________________________________________________
1
DEFENDANTS’ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO
CONTINUE TRIAL DATE AND ALL RELATED DATES
1 II. FACTUAL BACKGROUND
2 On December 2, 2019, Plaintiff Otoniel Espinoza (“Plaintiff”) served a Complaint for
3 damages alleging wages loss, loss of property, hospital and medical expenses, general damage,
4 property damage, loss of earning capacity and pain and suffering. Defendants filed a responsive
5 pleading on February 6, 2020. (Declaration of Mary K. Talmachoff Submitted in Support of
6 Motion to Continue Trial and Related Dates “Talmachoff Decl.”, ¶5.)
7 At the time of filing a responsive pleading until December 2020, Attorney Timothy J.
8 Nisson of Nisson, Pincion & Hill was the attorney handling this matter. In December 2020,
9 attorney Timothy J. Nisson retired from the practice of law. At that time, the matter was re-
10 assigned to attorney Mary Talmachoff of Bates Winter & Talmachoff LLP (hereinafter
11 “Defense Counsel”). (Talmachoff Decl., ¶6.)
12 At the outset, Defense Counsel has an actual conflict with the current trial date of
13 March 22, 2021. Specifically, Defense Counsel has trial scheduled in a wrongful death case in
14 Santa Clara County (Holly Wright, et al. v. Paul Alexander DaSilva, et al., Case No.
15 16CV296446). The Holly Wright, et al. v. Paul Alexander DaSilva, et al. case was filed on
16 June 15, 2016, and is running up against the five-year statute under Code of Civil Procedure
17 section 583.310 with which to bring a case to trial. It is, therefore, anticipated that trial in the
18 other matter will in fact commence on March 22, 2021. (Talmachoff Decl., ¶7.)
19 Equally and more important is that Defense Counsel needs additional time to conduct
20 further discovery and to evaluate and retain any experts that may be necessary. Defense
21 Counsel is and has been working diligently to review the file and related documents. At the
22 time of the file re-assignment, some written discovery had been conducted. Specifically, both
23 parties have propounded and responded to written interrogatories and produced their respective
24 documents. Party depositions were originally scheduled for December 2020; however, the
25 depositions were taken off-calendar to allow Defense Counsel sufficient time to prepare and
26 due to scheduling conflicts. The depositions have not been rescheduled as of the filing of this
27 Motion. It is anticipated that the party depositions will take place in February or March 2021.
28 (Talmachoff Decl., ¶8.)
____________________________________________________________________________________________
2
DEFENDANTS’ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO
CONTINUE TRIAL DATE AND ALL RELATED DATES
1 Following Plaintiff’s deposition, there may be additional witnesses identified that need
2 to be deposed. Defense Counsel will also determine whether an Independent Medical
3 Examination of Plaintiff is necessary and further, whether and to what extent experts need to be
4 retained. The parties also require time to engage in meaningful settlement discussions and, if
5 necessary, to properly and fully prepare for trial. Defense Counsel reasonably believes that a
6 six-month continuance would provide sufficient time to complete the necessary tasks.
7 (Talmachoff Decl., ¶¶ 10, 11.)
8 This matter is currently set for Trial on March 22, 2021, with a Mandatory Settlement
9 Conference set for March 5, 2021. On December 11, 2020, Defense Counsel met and conferred
10 with Plaintiff’s Counsel regarding a proposed stipulation to continue the trialdate. Plaintiff’s
11 Counsel indicated that she and her client were not inclined to stipulate to a trial continuance
12 and would oppose any request. (Talmachoff Decl., ¶¶ 10, 12.)
13 III. LEGAL AUTHORITY AND ARGUMENT
14 A. Good Cause Exists to Justify a Trial Continuance.
15 California Rules of Court, Rule 3.1332 requires “good cause” to continue a trialdate.
16 And, though disfavored, each request for a continuance must be considered on its own merits.
17 Grounds that support good cause to grant a trial continuance include: (3) the unavailability of
18 trial counsel because of death, illness, or other excusable circumstances; (6) a party’s excused
19 inability to obtain essential testimony, documents, or other material evidence despite diligent
20 efforts; and (7) a significant, unanticipated change in the status of the case as a result of which
21 the case is not ready for trial.
22 First, the current trial date of March 22, 2021, results in an actual conflict for Defense
23 Counsel. Second, a continuance is necessary under the unique circumstances that exist.
24 Following the retirement of attorney Timothy J. Nisson, this matter was re-assigned to Defense
25 Counsel in December 2020. Since that time, Defense Counsel has worked diligently to review
26 the pertinent file and related materials. Through the prior attorney, the parties had set the
27 depositions of Plaintiff and Defendants for December 2020. However, due to scheduling
28 conflicts and to allow sufficient time to properly prepare for the same, the depositions were
____________________________________________________________________________________________
3
DEFENDANTS’ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO
CONTINUE TRIAL DATE AND ALL RELATED DATES
1 taken off-calendar and have not been rescheduled at the time of the filing of this Motion. The
2 depositions of Plaintiff and Defendant are critical to this matter.
3 There may be additional depositions following the party depositions. Additional
4 discovery, including an Independent Medical Examination, may also be necessary. Following
5 depositions and any additional discovery, Defense Counsel can then properly evaluate the
6 claims to determine the necessity of any experts. The parties also require time to engage in
7 meaningful settlement discussions and, if necessary, to properly and fully prepare for trial.
8 (Talmachoff Decl., ¶¶ 7-10.)
9 All of these factors support good cause to justify the continuance of the trial date.
10 Defense Counsel reasonably believes that a six-month continuance will give the parties
11 sufficient time to complete the necessary discovery and prepare this matter for trial.
12 (Talmachoff Decl., ¶ 11.)
13 B. Other Factors To Be Considered Also Support a Trial Continuance.
14 California Rules of Court, Rule 3.1332(d), provides that the Court must consider all the
15 facts and circumstances relevant to ruling on a motion to continue the trial date. Such other
16 factors support a trial continuance, as discussed below.
17 (1) The Proximity of the Trial Date Does Not Provide Sufficient Time to
18 Prepare for Trial.
19 Based on the current trial date of March 22, 2021, Defendants have insufficient time to
20 complete fact discovery, including an Independent Medical Examination, of Plaintiff. The
21 party depositions have not yet been completed. When completed, there will be insufficient
22 time to take the depositions of any additional witnesses that may be identified during the party
23 depositions. Further, it would be impossible for Defendants to fully evaluate Plaintiff’s claims
24 sufficient enough to determine the necessity and extent to which any experts may be necessary.
25 Thus, a trial continuance is necessary to allow Defendants a full and fair opportunity to
26 evaluate Plaintiff’s claims and prepare for trial. California Rules of Court, Rule 3.1332(d)(1).
27 (Talmachoff Decl., ¶¶7-9.)
28 (2) There Have Been No Prior Continuances.
____________________________________________________________________________________________
4
DEFENDANTS’ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO
CONTINUE TRIAL DATE AND ALL RELATED DATES
1 There have been no prior requests for a continuance by either party. California Rules of
2 Court, Rule 3.1332(d)(2). (Talmachoff Decl., ¶13.)
3 (3) A Six-Month Continuance is Reasonable and Provides Sufficient Time to
4 Properly Prepare this Matter for Trial.
5 This matter was served on December 2, 2019. Defense Counsel believes that a six-
6 month trial continuance is reasonable and necessary to permit the parties sufficient time to
7 complete the necessary depositions, conduct an Independent Medical Examination, fully
8 evaluate the claims, retain any necessary experts, engage in meaningful settlement discussions
9 and properly prepare this matter for trial. California Rules of Court, Rule 3.1332(d)(3).
10 (Talmachoff Decl., ¶11.)
11 (4) There are No Alternative Means Given the Proximity of the Trial Date.
12 Because the trial date is approximately two months away, and given what discovery
13 needs to be completed, it is simply not possible for Defendants to complete the discovery prior
14 to the applicable deadlines in the Code of Civil Procedure. Thus, no alternative means exist to
15 address the problem. California Rules of Court, Rule 3.1332(d)(4). (Talmachoff Decl., ¶¶7-9.)
16 (5) Defendants Will Suffer Prejudice if the Continuance is Not Granted.
17 Defendants will suffer great prejudice if the continuance is not granted. Defendants
18 should be given a fair and adequate opportunity to fully evaluate the claims involved, take the
19 deposition of Plaintiff, take any other depositions that may be disclosed during Plaintiff’s
20 deposition, conduct an Independent Medical Examination, and retain any necessary experts.
21 Given the discovery that remains to be conducted, Defendants are simply not in a position to
22 properly prepare this matter for trial. California Rules of Court, Rule 3.1332(d)(7).
23 (Talmachoff Decl., ¶14.)
24 (6) The Court’s Calendar Will Be Considered.
25 Defendants assume that given the demand on this Court, a new trial date will have an
26 impact. However, Defendants are willing to schedule this matter at the Court’s convenience.
27 California Rules of Court, Rule 3.1332(d)(7). (Talmachoff Decl., ¶15.)
28 (7) Trial Counsel is Engaged in Another Trial at the Same Time as This Trial.
____________________________________________________________________________________________
5
DEFENDANTS’ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO
CONTINUE TRIAL DATE AND ALL RELATED DATES
1 As discussed above, Defense Counsel has an actual conflict with the present trial date of
2 March 22, 2021. Specifically, Defense Counsel has trial scheduled in a wrongful death
3 personal injury matter in Santa Clara County (“Holly Wright, et al. v. Paul Alexander DaSilva,
4 et al., Case No. 16CV296446”). The Holly Wright, et al. v. Paul Alexander DaSilva, et al. case
5 was filed on June 15, 2016and is running up against the five-year statute under Code of Civil
6 Procedure section 583.310 with which to bring a case to trial. It is therefore anticipated that the
7 Holly Wright, et al. v. Paul Alexander DaSilva, et al. will in fact start trial on March 22, 2021.
8 California Rules of Court, Rule 3.1332(d)(8). (Talmachoff Decl., ¶7.)
9 (8) The Interests of Justice are Best Served by Granting a Continuance.
10 There is an insufficient amount of time to complete the outstanding discovery in this
11 matter which results in prejudice to Defendants and would prevent this matter from being fully
12 prepared for trial. Decisions about whether to grant a continuance “must be made in an
13 atmosphere of substantial justice.” Oliveros v. County of Los Angeles (2004) 120 Cal. App. 4th
14 1389, 1396. “Where a denial of continuance would result in manifest injustice….the policy
15 disfavoring continuances must give way.” Denton v. City and County of San Francisco (2017)
16 16 Cal. App. 779, 793. When the policies of promoting judicial efficiency and allowing a case
17 to be decided on the merits “collide head-on, the strong policy favoring disposition on the
18 merits outweighs the competing policy favoring judicial efficiency.” Hamilton v. Orange
19 County Sheriff’s Dept. (2017) 8 Cal. App. 5th 759, 766. Here, absent a continuance, Defendants
20 will be unable to properly prepare for and effectively present their case due to a lack of
21 necessary information and discovery. Therefore, a continuance of trial is justified by the
22 circumstances of the present situation. California Rules of Court, Rule 3.1332(d)(10).
23 ///
24 ///
25 ///
26 ///
27 ///
28 ///
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6
DEFENDANTS’ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO
CONTINUE TRIAL DATE AND ALL RELATED DATES
1 IV. CONCLUSION
2 Based upon the grounds stated herein, the factors outlined above, as well as the
3 supporting evidence contained in the declaration filed herein, Defendants respectfully request
4 that this Court order the continuance of the currently set trial date of March 22, 2021, at 8:00
5 a.m., in Department 1, and all related deadlines, including the discovery cut-off date and expert
6 discovery deadlines.
7 Dated: January 20, 2021 BATES WINTER & TALMACHOFF LLP
8
__________________________________
9
MARY K. TALMACHOFF
10 Attorneys for Defendants LUCILLE KASHANI
and GAVIN ALEXANDER KASHANI
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____________________________________________________________________________________________
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DEFENDANTS’ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO
CONTINUE TRIAL DATE AND ALL RELATED DATES
PROOF OF SERVICE
1
Re: Otoniel Espinoza v. Gavi Alexander Kashani, et al.
2 Butte County Superior Court, Case No. 19CV02961
3 STATE OF CALIFORNIA )
) ss.
4 COUNTY OF PLACER )
5 I am employed in the County of Placer, State of California. I am over the age of 18
years and not a party to the within above-entitled action; my business address is 925 Highland
6 Pointe Drive, Suite 380, Roseville, California 95678.
7 On this date, I served the attached:
8 DEFENDANTS’ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT
OF MOTION TO CONTINUE TRIAL DATE AND ALL RELATED DATES
9
addressed as follows:
10 Counsel for Plaintiff: Previous Counsel for insured:
Arash Khorsandi, Esq. Timothy J. Nisson, Esq.
11
Brian G. Beecher, Esq. NISSON PINCIN & HILL
12 THE LAW OFFICES OF ARASH 2015 Shasta St.
KHORSANDI, PC P.O. Box 992710
13 2960 Wilshire Boulevard, Third Floor Redding, CA 96099
14 Los Angeles, CA 90010 T: 530-246-4201
T: 310-277-7529 F: 530-246-1426
15 F: 310-388-8442 Email: tim@nispinlaw.com
ak@arashlaw.com
16 bbeecher@arashlaw.com
17 sophie@arashlaw.com
escobar@arashlaw.com
18 alex@arashlaw.com
19 XX BY EMAIL: I caused each document to be delivered by electronic mail to the offices of
the addressee.
20
I declare under penalty of perjury under the laws of the State of California that the
21 foregoing is true and correct. Executed on January 20, 2021, in Roseville, California.
22
23 Susie Samayoa
24
25
26
27
28
Preview
1 MARY K. TALMACHOFF, STATE BAR NO. 258797 BATES WINTER & TALMACHOFF LLP 2 925 Highland Pointe Drive, Suite 380 Roseville, CA 95678 1/20/2021 3 Telephone: (916) 789-7080 Facsimile: (916) 789-7090 4 Attorneys for Defendants LUCILLE KASHANI 5 and GAVIN ALEXANDER KASHANI 6 7 8 SUPERIOR COURT OF CALIFORNIA 9 COUNTY OF BUTTE 10 11 OTONIEL ESPINOZA, ) Case No. 19CV02961 ) 12 Plaintiff, ) DEFENDANTS’ MEMORANDUM OF ) POINTS AND AUTHORITIES IN 13 v. ) SUPPORT OF MOTION TO CONTINUE ) TRIAL DATE AND ALL RELATED 14 GAVIN ALEXANDER KASHANI; ) DATES LUCILLE KASHANI; and DOES 1 TO 10, ) 15 ) Date: February 17, 2021 16 Defendants. ) Time: 9:00 a.m. ) Dept.: TBD 17 ) ) Assigned For All Purposes to: 18 ) Hon. Judge Tamara L. Mosbarger – Dept. 1 ) 19 ) Complaint Filed: October 2, 2019 ) Trial Date: March 22, 2021 20 21 I. INTRODUCTION 22 Defendants GAVIN ALEXANDER KASHANI and LUCILLE KASHANI, 23 (“Defendants”) move this Court pursuant to Code of Civil Procedure sections 1005(b) and 24 2024.050 and California Rules of Court Rule 3.1332 for a continuance of the currently set trial 25 date of March 22, 2021, at 8:00 a.m., in Department 1, and all deadlines to run commensurate 26 with the new trial date. As discussed more fully below, Defendants request a six-month 27 continuance. 28 /// ____________________________________________________________________________________________ 1 DEFENDANTS’ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO CONTINUE TRIAL DATE AND ALL RELATED DATES 1 II. FACTUAL BACKGROUND 2 On December 2, 2019, Plaintiff Otoniel Espinoza (“Plaintiff”) served a Complaint for 3 damages alleging wages loss, loss of property, hospital and medical expenses, general damage, 4 property damage, loss of earning capacity and pain and suffering. Defendants filed a responsive 5 pleading on February 6, 2020. (Declaration of Mary K. Talmachoff Submitted in Support of 6 Motion to Continue Trial and Related Dates “Talmachoff Decl.”, ¶5.) 7 At the time of filing a responsive pleading until December 2020, Attorney Timothy J. 8 Nisson of Nisson, Pincion & Hill was the attorney handling this matter. In December 2020, 9 attorney Timothy J. Nisson retired from the practice of law. At that time, the matter was re- 10 assigned to attorney Mary Talmachoff of Bates Winter & Talmachoff LLP (hereinafter 11 “Defense Counsel”). (Talmachoff Decl., ¶6.) 12 At the outset, Defense Counsel has an actual conflict with the current trial date of 13 March 22, 2021. Specifically, Defense Counsel has trial scheduled in a wrongful death case in 14 Santa Clara County (Holly Wright, et al. v. Paul Alexander DaSilva, et al., Case No. 15 16CV296446). The Holly Wright, et al. v. Paul Alexander DaSilva, et al. case was filed on 16 June 15, 2016, and is running up against the five-year statute under Code of Civil Procedure 17 section 583.310 with which to bring a case to trial. It is, therefore, anticipated that trial in the 18 other matter will in fact commence on March 22, 2021. (Talmachoff Decl., ¶7.) 19 Equally and more important is that Defense Counsel needs additional time to conduct 20 further discovery and to evaluate and retain any experts that may be necessary. Defense 21 Counsel is and has been working diligently to review the file and related documents. At the 22 time of the file re-assignment, some written discovery had been conducted. Specifically, both 23 parties have propounded and responded to written interrogatories and produced their respective 24 documents. Party depositions were originally scheduled for December 2020; however, the 25 depositions were taken off-calendar to allow Defense Counsel sufficient time to prepare and 26 due to scheduling conflicts. The depositions have not been rescheduled as of the filing of this 27 Motion. It is anticipated that the party depositions will take place in February or March 2021. 28 (Talmachoff Decl., ¶8.) ____________________________________________________________________________________________ 2 DEFENDANTS’ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO CONTINUE TRIAL DATE AND ALL RELATED DATES 1 Following Plaintiff’s deposition, there may be additional witnesses identified that need 2 to be deposed. Defense Counsel will also determine whether an Independent Medical 3 Examination of Plaintiff is necessary and further, whether and to what extent experts need to be 4 retained. The parties also require time to engage in meaningful settlement discussions and, if 5 necessary, to properly and fully prepare for trial. Defense Counsel reasonably believes that a 6 six-month continuance would provide sufficient time to complete the necessary tasks. 7 (Talmachoff Decl., ¶¶ 10, 11.) 8 This matter is currently set for Trial on March 22, 2021, with a Mandatory Settlement 9 Conference set for March 5, 2021. On December 11, 2020, Defense Counsel met and conferred 10 with Plaintiff’s Counsel regarding a proposed stipulation to continue the trialdate. Plaintiff’s 11 Counsel indicated that she and her client were not inclined to stipulate to a trial continuance 12 and would oppose any request. (Talmachoff Decl., ¶¶ 10, 12.) 13 III. LEGAL AUTHORITY AND ARGUMENT 14 A. Good Cause Exists to Justify a Trial Continuance. 15 California Rules of Court, Rule 3.1332 requires “good cause” to continue a trialdate. 16 And, though disfavored, each request for a continuance must be considered on its own merits. 17 Grounds that support good cause to grant a trial continuance include: (3) the unavailability of 18 trial counsel because of death, illness, or other excusable circumstances; (6) a party’s excused 19 inability to obtain essential testimony, documents, or other material evidence despite diligent 20 efforts; and (7) a significant, unanticipated change in the status of the case as a result of which 21 the case is not ready for trial. 22 First, the current trial date of March 22, 2021, results in an actual conflict for Defense 23 Counsel. Second, a continuance is necessary under the unique circumstances that exist. 24 Following the retirement of attorney Timothy J. Nisson, this matter was re-assigned to Defense 25 Counsel in December 2020. Since that time, Defense Counsel has worked diligently to review 26 the pertinent file and related materials. Through the prior attorney, the parties had set the 27 depositions of Plaintiff and Defendants for December 2020. However, due to scheduling 28 conflicts and to allow sufficient time to properly prepare for the same, the depositions were ____________________________________________________________________________________________ 3 DEFENDANTS’ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO CONTINUE TRIAL DATE AND ALL RELATED DATES 1 taken off-calendar and have not been rescheduled at the time of the filing of this Motion. The 2 depositions of Plaintiff and Defendant are critical to this matter. 3 There may be additional depositions following the party depositions. Additional 4 discovery, including an Independent Medical Examination, may also be necessary. Following 5 depositions and any additional discovery, Defense Counsel can then properly evaluate the 6 claims to determine the necessity of any experts. The parties also require time to engage in 7 meaningful settlement discussions and, if necessary, to properly and fully prepare for trial. 8 (Talmachoff Decl., ¶¶ 7-10.) 9 All of these factors support good cause to justify the continuance of the trial date. 10 Defense Counsel reasonably believes that a six-month continuance will give the parties 11 sufficient time to complete the necessary discovery and prepare this matter for trial. 12 (Talmachoff Decl., ¶ 11.) 13 B. Other Factors To Be Considered Also Support a Trial Continuance. 14 California Rules of Court, Rule 3.1332(d), provides that the Court must consider all the 15 facts and circumstances relevant to ruling on a motion to continue the trial date. Such other 16 factors support a trial continuance, as discussed below. 17 (1) The Proximity of the Trial Date Does Not Provide Sufficient Time to 18 Prepare for Trial. 19 Based on the current trial date of March 22, 2021, Defendants have insufficient time to 20 complete fact discovery, including an Independent Medical Examination, of Plaintiff. The 21 party depositions have not yet been completed. When completed, there will be insufficient 22 time to take the depositions of any additional witnesses that may be identified during the party 23 depositions. Further, it would be impossible for Defendants to fully evaluate Plaintiff’s claims 24 sufficient enough to determine the necessity and extent to which any experts may be necessary. 25 Thus, a trial continuance is necessary to allow Defendants a full and fair opportunity to 26 evaluate Plaintiff’s claims and prepare for trial. California Rules of Court, Rule 3.1332(d)(1). 27 (Talmachoff Decl., ¶¶7-9.) 28 (2) There Have Been No Prior Continuances. ____________________________________________________________________________________________ 4 DEFENDANTS’ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO CONTINUE TRIAL DATE AND ALL RELATED DATES 1 There have been no prior requests for a continuance by either party. California Rules of 2 Court, Rule 3.1332(d)(2). (Talmachoff Decl., ¶13.) 3 (3) A Six-Month Continuance is Reasonable and Provides Sufficient Time to 4 Properly Prepare this Matter for Trial. 5 This matter was served on December 2, 2019. Defense Counsel believes that a six- 6 month trial continuance is reasonable and necessary to permit the parties sufficient time to 7 complete the necessary depositions, conduct an Independent Medical Examination, fully 8 evaluate the claims, retain any necessary experts, engage in meaningful settlement discussions 9 and properly prepare this matter for trial. California Rules of Court, Rule 3.1332(d)(3). 10 (Talmachoff Decl., ¶11.) 11 (4) There are No Alternative Means Given the Proximity of the Trial Date. 12 Because the trial date is approximately two months away, and given what discovery 13 needs to be completed, it is simply not possible for Defendants to complete the discovery prior 14 to the applicable deadlines in the Code of Civil Procedure. Thus, no alternative means exist to 15 address the problem. California Rules of Court, Rule 3.1332(d)(4). (Talmachoff Decl., ¶¶7-9.) 16 (5) Defendants Will Suffer Prejudice if the Continuance is Not Granted. 17 Defendants will suffer great prejudice if the continuance is not granted. Defendants 18 should be given a fair and adequate opportunity to fully evaluate the claims involved, take the 19 deposition of Plaintiff, take any other depositions that may be disclosed during Plaintiff’s 20 deposition, conduct an Independent Medical Examination, and retain any necessary experts. 21 Given the discovery that remains to be conducted, Defendants are simply not in a position to 22 properly prepare this matter for trial. California Rules of Court, Rule 3.1332(d)(7). 23 (Talmachoff Decl., ¶14.) 24 (6) The Court’s Calendar Will Be Considered. 25 Defendants assume that given the demand on this Court, a new trial date will have an 26 impact. However, Defendants are willing to schedule this matter at the Court’s convenience. 27 California Rules of Court, Rule 3.1332(d)(7). (Talmachoff Decl., ¶15.) 28 (7) Trial Counsel is Engaged in Another Trial at the Same Time as This Trial. ____________________________________________________________________________________________ 5 DEFENDANTS’ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO CONTINUE TRIAL DATE AND ALL RELATED DATES 1 As discussed above, Defense Counsel has an actual conflict with the present trial date of 2 March 22, 2021. Specifically, Defense Counsel has trial scheduled in a wrongful death 3 personal injury matter in Santa Clara County (“Holly Wright, et al. v. Paul Alexander DaSilva, 4 et al., Case No. 16CV296446”). The Holly Wright, et al. v. Paul Alexander DaSilva, et al. case 5 was filed on June 15, 2016and is running up against the five-year statute under Code of Civil 6 Procedure section 583.310 with which to bring a case to trial. It is therefore anticipated that the 7 Holly Wright, et al. v. Paul Alexander DaSilva, et al. will in fact start trial on March 22, 2021. 8 California Rules of Court, Rule 3.1332(d)(8). (Talmachoff Decl., ¶7.) 9 (8) The Interests of Justice are Best Served by Granting a Continuance. 10 There is an insufficient amount of time to complete the outstanding discovery in this 11 matter which results in prejudice to Defendants and would prevent this matter from being fully 12 prepared for trial. Decisions about whether to grant a continuance “must be made in an 13 atmosphere of substantial justice.” Oliveros v. County of Los Angeles (2004) 120 Cal. App. 4th 14 1389, 1396. “Where a denial of continuance would result in manifest injustice….the policy 15 disfavoring continuances must give way.” Denton v. City and County of San Francisco (2017) 16 16 Cal. App. 779, 793. When the policies of promoting judicial efficiency and allowing a case 17 to be decided on the merits “collide head-on, the strong policy favoring disposition on the 18 merits outweighs the competing policy favoring judicial efficiency.” Hamilton v. Orange 19 County Sheriff’s Dept. (2017) 8 Cal. App. 5th 759, 766. Here, absent a continuance, Defendants 20 will be unable to properly prepare for and effectively present their case due to a lack of 21 necessary information and discovery. Therefore, a continuance of trial is justified by the 22 circumstances of the present situation. California Rules of Court, Rule 3.1332(d)(10). 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// ____________________________________________________________________________________________ 6 DEFENDANTS’ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO CONTINUE TRIAL DATE AND ALL RELATED DATES 1 IV. CONCLUSION 2 Based upon the grounds stated herein, the factors outlined above, as well as the 3 supporting evidence contained in the declaration filed herein, Defendants respectfully request 4 that this Court order the continuance of the currently set trial date of March 22, 2021, at 8:00 5 a.m., in Department 1, and all related deadlines, including the discovery cut-off date and expert 6 discovery deadlines. 7 Dated: January 20, 2021 BATES WINTER & TALMACHOFF LLP 8 __________________________________ 9 MARY K. TALMACHOFF 10 Attorneys for Defendants LUCILLE KASHANI and GAVIN ALEXANDER KASHANI 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ____________________________________________________________________________________________ 7 DEFENDANTS’ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO CONTINUE TRIAL DATE AND ALL RELATED DATES PROOF OF SERVICE 1 Re: Otoniel Espinoza v. Gavi Alexander Kashani, et al. 2 Butte County Superior Court, Case No. 19CV02961 3 STATE OF CALIFORNIA ) ) ss. 4 COUNTY OF PLACER ) 5 I am employed in the County of Placer, State of California. I am over the age of 18 years and not a party to the within above-entitled action; my business address is 925 Highland 6 Pointe Drive, Suite 380, Roseville, California 95678. 7 On this date, I served the attached: 8 DEFENDANTS’ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO CONTINUE TRIAL DATE AND ALL RELATED DATES 9 addressed as follows: 10 Counsel for Plaintiff: Previous Counsel for insured: Arash Khorsandi, Esq. Timothy J. Nisson, Esq. 11 Brian G. Beecher, Esq. NISSON PINCIN & HILL 12 THE LAW OFFICES OF ARASH 2015 Shasta St. KHORSANDI, PC P.O. Box 992710 13 2960 Wilshire Boulevard, Third Floor Redding, CA 96099 14 Los Angeles, CA 90010 T: 530-246-4201 T: 310-277-7529 F: 530-246-1426 15 F: 310-388-8442 Email: tim@nispinlaw.com ak@arashlaw.com 16 bbeecher@arashlaw.com 17 sophie@arashlaw.com escobar@arashlaw.com 18 alex@arashlaw.com 19 XX BY EMAIL: I caused each document to be delivered by electronic mail to the offices of the addressee. 20 I declare under penalty of perjury under the laws of the State of California that the 21 foregoing is true and correct. Executed on January 20, 2021, in Roseville, California. 22 23 Susie Samayoa 24 25 26 27 28