Preview
1 Thomas M. Swett (SBN 232423)
Seth A. Nunley (SBN 316028)
2 BURTON & SWETT
47 Main Street
3 Sutter Creek, California 95685 8/5/2021
Phone: (209) 267-9217
4 Fax: (209) 992-4077
Email: tom@burtonswett.com
5 Email: seth@burtonswett.com
6 Attorneys for Defendants
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SUPERIOR COURT OF THE STATE OF CALIFORNIA
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FOR THE COUNTY OF BUTTE
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GREG HUMPHERYS FARM Case No.: 20CV01041
12 & EQUIPMENT, INC.,
13 Plaintiff, OPPOSITION TO MOTION FOR
RELIEF FROM JUDGMENT AND
14 vs. ORDER GRANTING SUMMARY
JUDGMENT; DECLARATION OF
15 MINERAL RESOURCES, LLC; THOMAS M. SWETT
MRLLC INVESTORS, L.P.;
Date: August 18, 2021
16 MRIGP, LLC; CHRIS VAN VELDHUIZEN; Time: 9:00 a.m.
RODNEY W. BURTON; CHARLES G. Dept.: 1
17 PETTIGREW; and DOES 1 through 20,
Complaint filed: May 19, 2020
18 Defendants. Trial date: August 30, 2021
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20 Defendants Chris Van Veldhuizen, Charles G. Pettigrew, MRLLC Investors, L.P. and
21 MRIGP, LLC (“defendants”) jointly file the following memorandum of points and authorities in
22 opposition to plaintiff’s motion for relief from judgment and order granting summary judgment.
23 INTRODUCTION
24 Using the same material facts as previously presented to the court, plaintiff once again seeks
25 relief from the summary judgment in this action. The court has properly denied the requested relief
26 once and it should do so again. At some point, this litigation must conclude for defendants. They are
27 not guilty of any malfeasance with respect to the finances of defendant Mineral Resources, LLC and
28 should be allowed the continued finality of the present judgment in their favor.
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OPPOSITION TO MOTION FOR RELIEF FROM JUDGMENT
1 FACTUAL BACKGROUND
2 In May of 2020, plaintiff filed this lawsuit against Mineral Resources, LLC (“Mineral”), a
3 company that has effectively gone out of business. Presumably motivated by this economic reality,
4 plaintiff also sued anyone else who has ever been associated with Mineral without any probable cause.
5 These defendants included Mr. Rodney Burton, an attorney whose only contact with Mineral was
6 once submitting a document to the Secretary of State on behalf of the company. Mr. Burton was
7 dismissed in advance of his motion for summary judgment in August of 2020.
8 Plaintiff’s complaint was filed on May 19, 2020 and the case is set for trial to begin on August
9 30, 2021. This trial date was requested by plaintiff at the first case management conference.
10 Thereafter, defendants served and completed their written discovery by the end of November 2020.
11 Plaintiff’s responses to defendants’ written discovery revealed the lack of probable cause for
12 plaintiff’s action as to those defendants other than Mineral. Based on plaintiff’s discovery responses,
13 the defendants filing this opposition moved for summary judgment on December 30, 2020. At that
14 time, plaintiff did nothing in response to defendants’ motion—plaintiff did not serve any written
15 discovery on defendants until January 25, 2021.
16 Defendants’ motion for summary judgment, from which plaintiff seeks relief, was originally
17 set to be heard on March 17, 2021. By tentative ruling on March 16, plaintiff was given a 70-day
18 continuance to May 26, 2021, a date that plaintiff selected and represented to the court as adequate
19 time for it to complete its discovery and respond to defendants’ motion. Plaintiff’s counsel even set
20 forth his trial/hearing schedule in the continuance request, a schedule he now claims overwhelmed
21 him and kept him from even attempting to engage in further discovery. Defendants did not contest
22 the court’s tentative ruling and stood ready to complete the discovery plaintiff sought.
23 Plaintiff received the written discovery it requested from defendants by the agreed upon due
24 date and plaintiff has not objected to the adequacy of defendants’ responses. On April 1, 2021
25 plaintiff’s counsel requested that he be given suggested dates for depositions no later than April 7.
26 On April 6, counsel for defendants responded and proposed dates as requested. Again on April 9,
27 counsel for defendants reached out to plaintiff’s counsel to ask for confirmation of deposition dates.
28 ///
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OPPOSITION TO MOTION FOR RELIEF FROM JUDGMENT
1 Despite the urgency of the matter, plaintiff’s counsel never responded and plaintiff never noticed a
2 single deposition.
3 Plaintiff’s oppositions to defendants’ motions were due on May 12, 2021—plaintiff filed
4 nothing. On May 20, 2021, defendants filed and served a notice of non-opposition to their summary
5 judgment motions. In response, plaintiff filed a request for a second continuance just a day before
6 the court was to issue its tentative ruling. After oral argument, the court issued a written ruling on
7 May 26, 2021 finding that plaintiff did not meet either the statutory requirements or the discretionary
8 standards for a continuance of defendants’ summary judgment motion. Notice of that order was also
9 mailed by the clerk of the court to all parties on May 26, 2021.
10 On July 23, 2021, almost two months later, plaintiff brought an ex parte application for leave
11 to file a motion on shortened time to request that the court reconsider its prior order granting summary
12 judgment. Even though it was brought pursuant to Code of Civil Procedure section 473, subdivision
13 (b), plaintiff’s motion is best understood as a motion for reconsideration under Code of Civil
14 Procedure section 1008. In all material respects, there is no new or different information before the
15 court now than there was on May 26, 2021. Plaintiff is seeking to vacate the court’s order granting
16 summary judgment and to hopefully unearth enough information to create a dispute of fact that would
17 force defendants to trial.
18 Plaintiff offers the declaration of Jameson Sheehan in support of its motion, which adds detail
19 but recites substantially the same facts and occurrences as those presented in his declaration filed on
20 May 24, 2021 when plaintiff last requested a continuance. Mr. Sheehan does represent in his current
21 declaration that the purported evidence he presented as Exhibit 1 thereto was not previously presented
22 due to “clerical error,” but he does not specify what that error was. (Declaration of Jameson Sheehan
23 filed August 2, 2021 ¶ 10, exh 1.) Mr. Sheehan had the documents constituting Exhibit 1 in his
24 possession on May 24, 2021, but makes no reference to them in his declaration of that date. Mr.
25 Sheehan’s clerk did not forget to attach the documents to his declaration in May. The reality is that
26 Mr. Sheehan never reviewed the documents produced in discovery even though he had them in his
27 possession for approximately 60 days.
28 ///
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OPPOSITION TO MOTION FOR RELIEF FROM JUDGMENT
1 In any event, Mr. Sheehan misconstrues the balance sheet presented to the court. A balance
2 sheet shows a company’s cumulative financial position at a specific point in time, not over a smaller
3 period of time such as one year. Again, it is a cumulative document. 1 That is why the document is
4 labeled “As of December 31, 2018” and not “Jan – Dec 18” like the income statement that follows it
5 in Exhibit 1 to Mr. Sheehan’s declaration. (Declaration of Jameson Sheehan filed August 2, 2021,
6 exh. 1 [emphasis added].) The proffered balance sheet does not represent activity from January 1,
7 2018 to December 31, 2018—the balance sheet cumulatively shows the financial position of Mineral
8 from its inception through December 31, 2018.
9 According to the proffered balance sheet, as of December 31, 2018, “Partner Two” had
10 contributed over $35 million, withdrawn approximately $3.8 million, and lost approximately $29
11 million over the life of the business. However, none of the draws occurred in 2018. Mr. Sheehan
12 should know this as he also has in his possession Mineral’s bank statements for the time in question.
13 Even a cursory review of Mineral’s bank statements reveals no transaction or series of transactions
14 constituting a distribution to “Partner Two” of over $3.8 million. There is simply no evidence to
15 suggest that defendants are guilty of some actionable misconduct with respect to Mineral’s finances.
16 Plaintiff and its counsel must understand this reality. If their reasoning or interpretation of the
17 balance sheet were proper (it is not), there would have been a distribution of $3.8 million to Partner
18 Two in 2018 but also a contribution from Partner Two of $35.7 million in 2018 with over $2.7 million
19 left over after losses. That would be more than enough cash to satisfy plaintiff’s judgment and would
20 itself negate plaintiff’s alter ego and fraudulent transfer claims. As such, there is still absolutely no
21 evidence to support an alter ego or fraudulent transfer case against defendants and no indication that
22 anything will change if the court vacates the judgment, reopens discovery, again hears defendants’
23 summary judgment motions, reschedules trial, and otherwise forces defendants to litigate this case
24 for yet another round.
25 ///
26 ///
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https://ycharts.com/glossary/terms/quarterly_balance_sheet
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OPPOSITION TO MOTION FOR RELIEF FROM JUDGMENT
1 LEGAL DISCUSSION
2 Plaintiff’s request for a second continuance on May 26, 2021 was based in part on a
3 generalized assertion of good cause, separate and apart from the requirements for a continuance under
4 Code of Civil Procedure section 437c, subdivision (h). In its order of May 26, 2021, the court
5 specifically found that good cause did not exist for a continuance on any ground. That is, plaintiff’s
6 failure to conduct discovery during the 70-day continuance it requested did not justify the further
7 postponement of defendants’ motions. Now, over two months later, plaintiff wishes the court to
8 reconsider that ruling based upon the same material facts before it on May 26. Although couched as
9 a motion for relief from judgment under Code of Civil Procedure section 473, subdivision (b),
10 plaintiff’s motion is truly a motion for reconsideration pursuant to Code of Civil Procedure section
11 1008. The appellate courts have been clear that the title of plaintiff’s motion is not determinative—
12 it is the substance of what is requested of the court that controls. (Powell v. City of Orange (2011)
13 197 Cal.App.4th 1573, 1577.) When the exact same relief is requested on the exact same factual
14 basis, the pleading is a motion for reconsideration. (Ibid.)
15 Because plaintiff’s motion is one for reconsideration, the court’s jurisdiction is circumscribed
16 by Code of Civil Procedure section 1008. 2 (Code Civ. Proc., § 1008, subd. (e).) Section 1008 requires
17 that any motion for reconsideration be brought within ten days of the subject order. (Id. at subd. (a).)
18 Compliance with this deadline is jurisdictional and plaintiff’s failure to comply is fatal. The court’s
19 order granting summary judgment was mailed to the parties on May 26, 2021 making the deadline
20 for the filing of a motion for reconsideration June 10, 2021. Plaintiff’s motion is untimely and must
21 be denied.
22 The conclusion is no different if the analysis is conducted pursuant to Code of Civil Procedure
23 section 473, subdivision (b). Although couched as a request for relief from the court’s order for
24 summary judgment, what plaintiff really is seeking is a further continuance of defendants’ summary
25 judgment motion. Even though plaintiff’s counsel could not demonstrate good cause of a continuance
26 on May 26, plaintiff is hopeful that the court will make a different decision this time with an express
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Litigants are also restrained in the use of a motion for reconsideration as the failure to comply with the deadlines and
other requirements of Section 1008 is also punishable as contempt. (Code Civ. Proc., § 1008, subd. (d).)
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OPPOSITION TO MOTION FOR RELIEF FROM JUDGMENT
1 admission of attorney fault—fault that was as obvious on May 26 as it is today. Nevertheless,
2 regardless of attorney fault, further discovery will not change the reality that defendants are not liable
3 to plaintiff for Mineral’s debts. Final judgment has been entered by the court, which should not be
4 disturbed without a compelling reason for doing so.
5 In the context of a summary judgment motion, a request for a continuance outside the scope
6 of Code of Civil Procedure section 437c, subdivision (h) is not indulged nor liberally granted.
7 (Mahoney v. Southland Mental Health Assocs. Med. Grp. (1990) 223 Cal.App.3d 167, 171–72.) To
8 merit a continuance, plaintiff must be able to meet the standards for a continuance under section 437c,
9 subdivision (h) and plaintiff must affirmatively show what good cause exists for not requesting a
10 continuance in a timely fashion. Importantly, plaintiff must present the court with facts establishing
11 a likelihood that controverting evidence may exist and the specific reasons why such evidence cannot
12 be presented at the present time. (See 501 East 51st Street, Long-Beach-10 LLC v. Kookmin Best
13 Insurance Co., LTD. (2020) 47 Cal.App.5th 924, 939.) Else, the granting of a continuance would be
14 futile and good cause could not be shown.
15 Here, the court has not been presented with any materially different facts than those before it
16 on May 26, 2021; those facts are now instead recast as admitted attorney neglect. The same facts
17 should lead to the same conclusion reached on May 26. There was no mistake, there was no surprise,
18 and although the neglect is clear, the neglect was not excusable. Neglect is only excusable if it
19 constitutes “an act or omission which might have been committed by a reasonably prudent person
20 under the same circumstances.” (Transit Ads, Inc. v. Tanner Motor Livery, Ltd. (1969) 270
21 Cal.App.2d 275, 279.) No reasonable attorney would have neglected the conduct of discovery as
22 plaintiff’s counsel did. Moreover, the neglect “must be the actual cause of the default.” (Ibid.
23 [emphasis original].) Here, there is no evidence that the conduct of a deposition would have resulted
24 in a different ruling on defendants’ motion for summary judgment. Plaintiff’s motion should be
25 denied, a conclusion supported even by the authority cited in plaintiff’s own motion. (Motion at pp.
26 4:24-5:12 citing Davis v. Kay (1973) 34 Cal.App.3d 680; Motion at p. 6:14-17 citing Bellm v. Bellia
27 (1984) 150 Cal.App.3d 1036.)
28 ///
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OPPOSITION TO MOTION FOR RELIEF FROM JUDGMENT
1 Plaintiff’s counsel attempts to create a new issue by proffering a copy of Mineral’s balance
2 sheet for the court to consider. As discussed above, when critically analyzed, the evidence
3 corroborates defendants’ contention that they have done nothing wrong with respect to Mineral’s
4 finances. There is simply no evidence before the court that would even suggest a different result
5 should the judgment be vacated—a showing that is required under Code of Civil Procedure section
6 473, subdivision (b). (Zancaner v. Louisville & Nashville R. Co., 220 Cal.App.2d 836, 839.) No
7 facts have been presented that would justify overturning the court’s order for summary judgment,
8 vacating a judgment after a contested hearing, and tossing defendants back into the fray of litigation.
9 CONCLUSION
10 Defendants respectfully request that the court not disturb its prior ruling or final judgment in
11 this matter. They have spent over a year’s worth of time and financial resources litigating against
12 plaintiff’s meritless claims and it would be unjust to make them start the process yet again. Plaintiff
13 has presented the court with no facts to justify relief from the court’s final judgment. To the extent
14 that there was attorney neglect, it was not excusable nor was it the cause-in-fact of plaintiff’s defeat.
15 As such, plaintiff’s motion should be denied.
16 DATED: AUGUST 5, 2021 BURTON & SWETT
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18
19 BY:
THOMAS M. SWETT, ESQ.
20 ATTORNEYS FOR DEFENDANTS
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22 DECLARATION OF THOMAS M. SWETT
23 1. I am a California-licensed attorney authorized to appear before this court and the
24 attorney of record for defendants. I have personal knowledge of the facts declared herein by virtue
25 of my representation of the same and could competently testify thereto if called as a witness in this
26 case. I make this declaration in support of defendants’ opposition to plaintiff’s motion to vacate as
27 set forth above.
28 ///
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OPPOSITION TO MOTION FOR RELIEF FROM JUDGMENT
1 2. The facts set forth in the opposition above, which are incorporated herein, are
2 personally known to me 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.
5 ______________________
Thomas M. Swett
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OPPOSITION TO MOTION FOR RELIEF FROM JUDGMENT
1 PROOF OF SERVICE
2 I, Thomas M. Swett, Esq., certify that my business address is 47 Main Street, Sutter Creek,
3 California and that I am an active member of the State Bar of California. On August 5, 2021, I
4 electronically served the document to which this certificate is attached to the individual(s) listed
5 below. The electronic service address(es) below was/were confirmed pursuant to Code of Civil
6 Procedure section 1010.6, subdivision (e).
7 DAVID R. GRIFFITH, ESQ. ATTORNEYS FOR PLAINTIFF
GRIFFITH, HORN & SHEEHAN, LLP GREG HUMPHERYS FARM
8 1530 HUMBOLDT ROAD, SUITE 3 & EQUIPMENT, INC.
CHICO, CA 95928
9 david@davidgriffithlaw.com
jameson@griffithandhorn.com
10 steven@griffithandhorn.com
11 I declare under penalty of perjury under the laws of the State of California that the foregoing
12 is true and correct.
13 ______________________
Thomas M. Swett
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OPPOSITION TO MOTION FOR RELIEF FROM JUDGMENT
Preview
1 Thomas M. Swett (SBN 232423) Seth A. Nunley (SBN 316028) 2 BURTON & SWETT 47 Main Street 3 Sutter Creek, California 95685 8/5/2021 Phone: (209) 267-9217 4 Fax: (209) 992-4077 Email: tom@burtonswett.com 5 Email: seth@burtonswett.com 6 Attorneys for Defendants 7 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 FOR THE COUNTY OF BUTTE 10 11 GREG HUMPHERYS FARM Case No.: 20CV01041 12 & EQUIPMENT, INC., 13 Plaintiff, OPPOSITION TO MOTION FOR RELIEF FROM JUDGMENT AND 14 vs. ORDER GRANTING SUMMARY JUDGMENT; DECLARATION OF 15 MINERAL RESOURCES, LLC; THOMAS M. SWETT MRLLC INVESTORS, L.P.; Date: August 18, 2021 16 MRIGP, LLC; CHRIS VAN VELDHUIZEN; Time: 9:00 a.m. RODNEY W. BURTON; CHARLES G. Dept.: 1 17 PETTIGREW; and DOES 1 through 20, Complaint filed: May 19, 2020 18 Defendants. Trial date: August 30, 2021 19 20 Defendants Chris Van Veldhuizen, Charles G. Pettigrew, MRLLC Investors, L.P. and 21 MRIGP, LLC (“defendants”) jointly file the following memorandum of points and authorities in 22 opposition to plaintiff’s motion for relief from judgment and order granting summary judgment. 23 INTRODUCTION 24 Using the same material facts as previously presented to the court, plaintiff once again seeks 25 relief from the summary judgment in this action. The court has properly denied the requested relief 26 once and it should do so again. At some point, this litigation must conclude for defendants. They are 27 not guilty of any malfeasance with respect to the finances of defendant Mineral Resources, LLC and 28 should be allowed the continued finality of the present judgment in their favor. -1- OPPOSITION TO MOTION FOR RELIEF FROM JUDGMENT 1 FACTUAL BACKGROUND 2 In May of 2020, plaintiff filed this lawsuit against Mineral Resources, LLC (“Mineral”), a 3 company that has effectively gone out of business. Presumably motivated by this economic reality, 4 plaintiff also sued anyone else who has ever been associated with Mineral without any probable cause. 5 These defendants included Mr. Rodney Burton, an attorney whose only contact with Mineral was 6 once submitting a document to the Secretary of State on behalf of the company. Mr. Burton was 7 dismissed in advance of his motion for summary judgment in August of 2020. 8 Plaintiff’s complaint was filed on May 19, 2020 and the case is set for trial to begin on August 9 30, 2021. This trial date was requested by plaintiff at the first case management conference. 10 Thereafter, defendants served and completed their written discovery by the end of November 2020. 11 Plaintiff’s responses to defendants’ written discovery revealed the lack of probable cause for 12 plaintiff’s action as to those defendants other than Mineral. Based on plaintiff’s discovery responses, 13 the defendants filing this opposition moved for summary judgment on December 30, 2020. At that 14 time, plaintiff did nothing in response to defendants’ motion—plaintiff did not serve any written 15 discovery on defendants until January 25, 2021. 16 Defendants’ motion for summary judgment, from which plaintiff seeks relief, was originally 17 set to be heard on March 17, 2021. By tentative ruling on March 16, plaintiff was given a 70-day 18 continuance to May 26, 2021, a date that plaintiff selected and represented to the court as adequate 19 time for it to complete its discovery and respond to defendants’ motion. Plaintiff’s counsel even set 20 forth his trial/hearing schedule in the continuance request, a schedule he now claims overwhelmed 21 him and kept him from even attempting to engage in further discovery. Defendants did not contest 22 the court’s tentative ruling and stood ready to complete the discovery plaintiff sought. 23 Plaintiff received the written discovery it requested from defendants by the agreed upon due 24 date and plaintiff has not objected to the adequacy of defendants’ responses. On April 1, 2021 25 plaintiff’s counsel requested that he be given suggested dates for depositions no later than April 7. 26 On April 6, counsel for defendants responded and proposed dates as requested. Again on April 9, 27 counsel for defendants reached out to plaintiff’s counsel to ask for confirmation of deposition dates. 28 /// -2- OPPOSITION TO MOTION FOR RELIEF FROM JUDGMENT 1 Despite the urgency of the matter, plaintiff’s counsel never responded and plaintiff never noticed a 2 single deposition. 3 Plaintiff’s oppositions to defendants’ motions were due on May 12, 2021—plaintiff filed 4 nothing. On May 20, 2021, defendants filed and served a notice of non-opposition to their summary 5 judgment motions. In response, plaintiff filed a request for a second continuance just a day before 6 the court was to issue its tentative ruling. After oral argument, the court issued a written ruling on 7 May 26, 2021 finding that plaintiff did not meet either the statutory requirements or the discretionary 8 standards for a continuance of defendants’ summary judgment motion. Notice of that order was also 9 mailed by the clerk of the court to all parties on May 26, 2021. 10 On July 23, 2021, almost two months later, plaintiff brought an ex parte application for leave 11 to file a motion on shortened time to request that the court reconsider its prior order granting summary 12 judgment. Even though it was brought pursuant to Code of Civil Procedure section 473, subdivision 13 (b), plaintiff’s motion is best understood as a motion for reconsideration under Code of Civil 14 Procedure section 1008. In all material respects, there is no new or different information before the 15 court now than there was on May 26, 2021. Plaintiff is seeking to vacate the court’s order granting 16 summary judgment and to hopefully unearth enough information to create a dispute of fact that would 17 force defendants to trial. 18 Plaintiff offers the declaration of Jameson Sheehan in support of its motion, which adds detail 19 but recites substantially the same facts and occurrences as those presented in his declaration filed on 20 May 24, 2021 when plaintiff last requested a continuance. Mr. Sheehan does represent in his current 21 declaration that the purported evidence he presented as Exhibit 1 thereto was not previously presented 22 due to “clerical error,” but he does not specify what that error was. (Declaration of Jameson Sheehan 23 filed August 2, 2021 ¶ 10, exh 1.) Mr. Sheehan had the documents constituting Exhibit 1 in his 24 possession on May 24, 2021, but makes no reference to them in his declaration of that date. Mr. 25 Sheehan’s clerk did not forget to attach the documents to his declaration in May. The reality is that 26 Mr. Sheehan never reviewed the documents produced in discovery even though he had them in his 27 possession for approximately 60 days. 28 /// -3- OPPOSITION TO MOTION FOR RELIEF FROM JUDGMENT 1 In any event, Mr. Sheehan misconstrues the balance sheet presented to the court. A balance 2 sheet shows a company’s cumulative financial position at a specific point in time, not over a smaller 3 period of time such as one year. Again, it is a cumulative document. 1 That is why the document is 4 labeled “As of December 31, 2018” and not “Jan – Dec 18” like the income statement that follows it 5 in Exhibit 1 to Mr. Sheehan’s declaration. (Declaration of Jameson Sheehan filed August 2, 2021, 6 exh. 1 [emphasis added].) The proffered balance sheet does not represent activity from January 1, 7 2018 to December 31, 2018—the balance sheet cumulatively shows the financial position of Mineral 8 from its inception through December 31, 2018. 9 According to the proffered balance sheet, as of December 31, 2018, “Partner Two” had 10 contributed over $35 million, withdrawn approximately $3.8 million, and lost approximately $29 11 million over the life of the business. However, none of the draws occurred in 2018. Mr. Sheehan 12 should know this as he also has in his possession Mineral’s bank statements for the time in question. 13 Even a cursory review of Mineral’s bank statements reveals no transaction or series of transactions 14 constituting a distribution to “Partner Two” of over $3.8 million. There is simply no evidence to 15 suggest that defendants are guilty of some actionable misconduct with respect to Mineral’s finances. 16 Plaintiff and its counsel must understand this reality. If their reasoning or interpretation of the 17 balance sheet were proper (it is not), there would have been a distribution of $3.8 million to Partner 18 Two in 2018 but also a contribution from Partner Two of $35.7 million in 2018 with over $2.7 million 19 left over after losses. That would be more than enough cash to satisfy plaintiff’s judgment and would 20 itself negate plaintiff’s alter ego and fraudulent transfer claims. As such, there is still absolutely no 21 evidence to support an alter ego or fraudulent transfer case against defendants and no indication that 22 anything will change if the court vacates the judgment, reopens discovery, again hears defendants’ 23 summary judgment motions, reschedules trial, and otherwise forces defendants to litigate this case 24 for yet another round. 25 /// 26 /// 27 28 1 https://ycharts.com/glossary/terms/quarterly_balance_sheet -4- OPPOSITION TO MOTION FOR RELIEF FROM JUDGMENT 1 LEGAL DISCUSSION 2 Plaintiff’s request for a second continuance on May 26, 2021 was based in part on a 3 generalized assertion of good cause, separate and apart from the requirements for a continuance under 4 Code of Civil Procedure section 437c, subdivision (h). In its order of May 26, 2021, the court 5 specifically found that good cause did not exist for a continuance on any ground. That is, plaintiff’s 6 failure to conduct discovery during the 70-day continuance it requested did not justify the further 7 postponement of defendants’ motions. Now, over two months later, plaintiff wishes the court to 8 reconsider that ruling based upon the same material facts before it on May 26. Although couched as 9 a motion for relief from judgment under Code of Civil Procedure section 473, subdivision (b), 10 plaintiff’s motion is truly a motion for reconsideration pursuant to Code of Civil Procedure section 11 1008. The appellate courts have been clear that the title of plaintiff’s motion is not determinative— 12 it is the substance of what is requested of the court that controls. (Powell v. City of Orange (2011) 13 197 Cal.App.4th 1573, 1577.) When the exact same relief is requested on the exact same factual 14 basis, the pleading is a motion for reconsideration. (Ibid.) 15 Because plaintiff’s motion is one for reconsideration, the court’s jurisdiction is circumscribed 16 by Code of Civil Procedure section 1008. 2 (Code Civ. Proc., § 1008, subd. (e).) Section 1008 requires 17 that any motion for reconsideration be brought within ten days of the subject order. (Id. at subd. (a).) 18 Compliance with this deadline is jurisdictional and plaintiff’s failure to comply is fatal. The court’s 19 order granting summary judgment was mailed to the parties on May 26, 2021 making the deadline 20 for the filing of a motion for reconsideration June 10, 2021. Plaintiff’s motion is untimely and must 21 be denied. 22 The conclusion is no different if the analysis is conducted pursuant to Code of Civil Procedure 23 section 473, subdivision (b). Although couched as a request for relief from the court’s order for 24 summary judgment, what plaintiff really is seeking is a further continuance of defendants’ summary 25 judgment motion. Even though plaintiff’s counsel could not demonstrate good cause of a continuance 26 on May 26, plaintiff is hopeful that the court will make a different decision this time with an express 27 28 2 Litigants are also restrained in the use of a motion for reconsideration as the failure to comply with the deadlines and other requirements of Section 1008 is also punishable as contempt. (Code Civ. Proc., § 1008, subd. (d).) -5- OPPOSITION TO MOTION FOR RELIEF FROM JUDGMENT 1 admission of attorney fault—fault that was as obvious on May 26 as it is today. Nevertheless, 2 regardless of attorney fault, further discovery will not change the reality that defendants are not liable 3 to plaintiff for Mineral’s debts. Final judgment has been entered by the court, which should not be 4 disturbed without a compelling reason for doing so. 5 In the context of a summary judgment motion, a request for a continuance outside the scope 6 of Code of Civil Procedure section 437c, subdivision (h) is not indulged nor liberally granted. 7 (Mahoney v. Southland Mental Health Assocs. Med. Grp. (1990) 223 Cal.App.3d 167, 171–72.) To 8 merit a continuance, plaintiff must be able to meet the standards for a continuance under section 437c, 9 subdivision (h) and plaintiff must affirmatively show what good cause exists for not requesting a 10 continuance in a timely fashion. Importantly, plaintiff must present the court with facts establishing 11 a likelihood that controverting evidence may exist and the specific reasons why such evidence cannot 12 be presented at the present time. (See 501 East 51st Street, Long-Beach-10 LLC v. Kookmin Best 13 Insurance Co., LTD. (2020) 47 Cal.App.5th 924, 939.) Else, the granting of a continuance would be 14 futile and good cause could not be shown. 15 Here, the court has not been presented with any materially different facts than those before it 16 on May 26, 2021; those facts are now instead recast as admitted attorney neglect. The same facts 17 should lead to the same conclusion reached on May 26. There was no mistake, there was no surprise, 18 and although the neglect is clear, the neglect was not excusable. Neglect is only excusable if it 19 constitutes “an act or omission which might have been committed by a reasonably prudent person 20 under the same circumstances.” (Transit Ads, Inc. v. Tanner Motor Livery, Ltd. (1969) 270 21 Cal.App.2d 275, 279.) No reasonable attorney would have neglected the conduct of discovery as 22 plaintiff’s counsel did. Moreover, the neglect “must be the actual cause of the default.” (Ibid. 23 [emphasis original].) Here, there is no evidence that the conduct of a deposition would have resulted 24 in a different ruling on defendants’ motion for summary judgment. Plaintiff’s motion should be 25 denied, a conclusion supported even by the authority cited in plaintiff’s own motion. (Motion at pp. 26 4:24-5:12 citing Davis v. Kay (1973) 34 Cal.App.3d 680; Motion at p. 6:14-17 citing Bellm v. Bellia 27 (1984) 150 Cal.App.3d 1036.) 28 /// -6- OPPOSITION TO MOTION FOR RELIEF FROM JUDGMENT 1 Plaintiff’s counsel attempts to create a new issue by proffering a copy of Mineral’s balance 2 sheet for the court to consider. As discussed above, when critically analyzed, the evidence 3 corroborates defendants’ contention that they have done nothing wrong with respect to Mineral’s 4 finances. There is simply no evidence before the court that would even suggest a different result 5 should the judgment be vacated—a showing that is required under Code of Civil Procedure section 6 473, subdivision (b). (Zancaner v. Louisville & Nashville R. Co., 220 Cal.App.2d 836, 839.) No 7 facts have been presented that would justify overturning the court’s order for summary judgment, 8 vacating a judgment after a contested hearing, and tossing defendants back into the fray of litigation. 9 CONCLUSION 10 Defendants respectfully request that the court not disturb its prior ruling or final judgment in 11 this matter. They have spent over a year’s worth of time and financial resources litigating against 12 plaintiff’s meritless claims and it would be unjust to make them start the process yet again. Plaintiff 13 has presented the court with no facts to justify relief from the court’s final judgment. To the extent 14 that there was attorney neglect, it was not excusable nor was it the cause-in-fact of plaintiff’s defeat. 15 As such, plaintiff’s motion should be denied. 16 DATED: AUGUST 5, 2021 BURTON & SWETT 17 18 19 BY: THOMAS M. SWETT, ESQ. 20 ATTORNEYS FOR DEFENDANTS 21 22 DECLARATION OF THOMAS M. SWETT 23 1. I am a California-licensed attorney authorized to appear before this court and the 24 attorney of record for defendants. I have personal knowledge of the facts declared herein by virtue 25 of my representation of the same and could competently testify thereto if called as a witness in this 26 case. I make this declaration in support of defendants’ opposition to plaintiff’s motion to vacate as 27 set forth above. 28 /// -7- OPPOSITION TO MOTION FOR RELIEF FROM JUDGMENT 1 2. The facts set forth in the opposition above, which are incorporated herein, are 2 personally known to me 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. 5 ______________________ Thomas M. Swett 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -8- OPPOSITION TO MOTION FOR RELIEF FROM JUDGMENT 1 PROOF OF SERVICE 2 I, Thomas M. Swett, Esq., certify that my business address is 47 Main Street, Sutter Creek, 3 California and that I am an active member of the State Bar of California. On August 5, 2021, I 4 electronically served the document to which this certificate is attached to the individual(s) listed 5 below. The electronic service address(es) below was/were confirmed pursuant to Code of Civil 6 Procedure section 1010.6, subdivision (e). 7 DAVID R. GRIFFITH, ESQ. ATTORNEYS FOR PLAINTIFF GRIFFITH, HORN & SHEEHAN, LLP GREG HUMPHERYS FARM 8 1530 HUMBOLDT ROAD, SUITE 3 & EQUIPMENT, INC. CHICO, CA 95928 9 david@davidgriffithlaw.com jameson@griffithandhorn.com 10 steven@griffithandhorn.com 11 I declare under penalty of perjury under the laws of the State of California that the foregoing 12 is true and correct. 13 ______________________ Thomas M. Swett 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -9- OPPOSITION TO MOTION FOR RELIEF FROM JUDGMENT