Preview
eo. © — Weangay 188
Richard C.J. Wahng (SBN 225672)
Lee E. Sheldon (SBN 263310)
LAW OFFICES OF RICHARD C.J. WAHNG
152 Anza Street, Suite 201 FILED
NO
Fremont, CA 94539 ALAMEDA
Telephone (510) 490-4447 | JUL 14 2010
WY
Facsimile (510) 490-1102
HBP
Attorney for Defendant,
A PERFECT DAY, INC.
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NIN
SUPERIOR COURT OF THE STATE OF CALIFORNIA
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FOR THE COUNTY OF ALAMEDA
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Case No.: HG08425849
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JANICE L. COSTANZO,
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cage! ASSIGNED FOR ALL PURPOSES TO:
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Plaintiff, HON. JUDGE RONNI MACLAREN IN
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DEPARTMENT 25
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VS.
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DEFENDANT’S EX PARTE
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APPLICATION TO AMEND THE
GARY V. REYNOLDS, and DOES ONE COMPLAINT, TO CONTINUE THE
| inchasi MANDATORY SETTLEMENT
att Sema! era! warner! ong
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through TWENTY, inclusive, CONFERENCE, THE PRETRIAL
Defendant, CONFERENCE AND DATE
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CURRENTLY SET FOR TRIAL
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Date: July 15, 2010
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Time: 9:00 a.m.
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Dept.: 25
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Judge: Hon. Ronni MacLaren
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Complaint Filed: December 17, 2008
Trial Date: August 16, 2010
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TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:
B&B
BY
PLEASE TAKE NOTICE that defendant A PERFECT DAY, INC. (“APD”) by and
AW
BY
through its attorney of record, moves on an ex parte basis, pursuant to Rules 3.1332 and 3.1332
NY
UWA
of the California Rules of Court, to amend the complaint to name A PERFECT DAY
NHN
Co
NM
FRANCHISE, INC., to continue the date presently set for the Mandatory Settlement Conference
EX PARTE APPLICATION HG 08425849
@ @
= (presently set for July 21, 2010), the date currently set for the Pretrial Conference (July 30, 2010
and the date set for Trial (currently scheduled for August 16, 2010). This continuance ig
NO
necessary in order to allow plaintiff HEIDI OATIS to amend the Complaint to name an existing
YW
BP
corporate defendant in this matter and in order to allow the parties a reasonable opportunity to
A
conduct discovery.
DH
This Application is brought before the. Court pursuant to Rules 3.1332(b) and
ss
3.1332(c)(2),(5)&(7) of the California Rules of Court, and is based upon this application, the
COC
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supporting memorandum of points and authorities, a signed stipulation between the parties and
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the declaration of Lee Sheldon offered in support of this ex parte application. This application is
—|
also based upon the complete files and records in this action that are maintained by the court as
NY
well as any evidence and/or argument that may be presented to the court at hearing.
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WY
In compliance with Rule 3.1204 and 3.1203, of the California Rules of Court, as well as
Ff
Alameda County Superior Court Local Rules, defendant’s counsel gave notice of this application
A
HDB
to plaintiff's counsel, David Cutler at approximately 9:55 a.m. on Wednesday, July 14, 2010, by
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transmitting via fax, correspondence that provided notice of the nature of this ex parte
FHF
application as well as the date, time and location of the hearing. [Decl. of Lee Sheldon in Support
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DTD
of ex parte Application (“Sheldon Decl. § 9). Further notice was provided by telephone.
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For the foregoing reasons, counsel for defendant, A PERFECT DAY requests that this
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court vacate the mandatory settlement conference date; the pre-trial conference date and the trial
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date.
FP
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Dated: July 14, 2010 Law Offices,ef Richard C.J. Wahng
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. Meldon
Attorney for Defendant
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EX PARTE APPLICATION HG 08425849
we MEMORANDUM OF POINTS AND AUTHORITIES
I. BRIEF FACTS
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WO
The Complaint in this case was filed by Plaintiff on December 17, 2008, naming
Be
defendants, “A PERFECT DAY SPA, business form unknown, and HEMANT DOE.” The
A
complaint alleged among other things, that a sexual battery had occurred at APD’S premises and
DW
that Defendants were liable to Plaintiff for said battery. On March 2, 2009, defendant A
NQ
PERFECT DAY, INC., a California Corporation, filed an answer to the complaint. On or about
Fe
September 2009, A PERFECT DAY, INC. was dissolved without the knowledge of counsel for
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defendant A PERFECT DAY, INC. or counsel for plaintiff, HEIDI OATIS. An existing
co]
—
corporate entity, A PERFECT DAY FRANCHISE, INC. succeeded A PERFECT DAY, INC.
—
—
immediately thereafter. Prior to the dissolution of A PERFECT DAY, INC., A PERFECT DAY
No
—
FRANCHISE, INC. had not been actively in business. |
we
—
On October 9, 2009, plaintiff HEIDI OATIS filed an amendment to the complaint
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substituting the name, “HEMANT GU, AKA RENZHI GU, AKA REN GU, AKA REN CHU
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—
GU” for HEMANT DOE. On or about June 1, 2010, attorney Lee Sheldon inherited
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—
responsibility for this case from Vikram Sighamony who no longer works with the Law Offices
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—
of Richard C.J. Wahng. Upon review of the file Lee Sheldon discovered that A PERFECT
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DAY, INC. had been dissolved.
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—_
Immediately upon learning that A PERFECT DAY, INC. was a non-existent corporate
a)
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entity, counsel for Defendant informed counsel for plaintiff HEJDI OATIS that Plaintiff would
_
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need to amend the complaint to name A PERFECT DAY FRANCHISE, INC., and to continue
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the trial and relevant cut-off dates as the Law Offices of Richard C.J. Wahng could no longer
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continue to represent A PERFECT DAY, INC., a non-existent entity.
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The parties have agreed, pursuant to written stipulation that the complaint should be
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amended to name a existing corporate entity and that the trial and other dates in this case should
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be continued in order to allow discovery to take place between these two parties.
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EX PARTE APPLICATION . ] oo HG 08425849
—
Il. ARGUMENT
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This court should grant this ex parte application to continue the mandatory settlement
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conference (currently set for July 21, 2010), the pretrial conference (presently set for July 30,
BP
nA
2010) and the trial date (currently set for August 16, 2010) because “good cause’ exists under the
DA
circumstances. This good cause includes allowing Plaintiff to amend the complaint to name an
Omen
existing corporate entity and to allow the parties a reasonable opportunity to conduct discovery.
A. “Good Cause” exists to grant plaintiff?s ex parte application
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D2
Pursuant to CRC Rule 3.1332(c), the party requesting a continuance must make anj
mle
—
“affirmative showing of good cause.” The foregoing statute provides instances of good cause
HN
which exist under the circumstances of this case.
WY
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i. Good cause exists because counsel for the Defendant can no longer to
BP
represent a non-existent corporate entity
NW
CRC Rule 3.1332(c)(2) provides a factor that “may indicate good cause,” includes “[t]he
DB
sa
unavailability of a party because of death, illness, or other excusable circumstances.” Cal. Rules
SB
of Ct. Rule 3.1332(c)(2).
ROR
OD
As stated above, defendant A PERFECT DAY, INC. was dissolved in September 2009
OD
without the knowledge of counsel for the Plaintiff or Defendant. [Sheldon Decl. 7 5.] Pursuant
NO
YH
to Section 23301 of the California Revenue and Taxation Code and Section 8722(a) of the
NY
NHN
WD
WC
California Corporation Code, a corporation may not exercise any right, power or privilege during
FSF
NO
a period of suspension or dissolution except so far as necessary for the winding up of the
Tn
NO
corporation’s affairs. As a result, Defendant is prohibited from taking action to defend itself.
WD
NO
Good cause further exists pursuant to Section 3-700(c)(1)(d) of the California Rules of
sas
NO
Sa
Professional Conduct, which permits an attorney to withdraw if the client makes it “unreasonably;
NO
EX PARTE APPLICATION . So HG 08425849
eS difficult for the attorney to carry out the employment effectively.” Here, APD cannot act while it
is suspended. This prohibition prevents counsel for APD from taking any action on its behalf.
NO
WY
B. The court may also consider other factors in ruling on an application for a
HR
continuance
WD
CRC Rule 3.1332(d) identifies a number of factors which the court must consider in|
DB
ruling on a motion to continue. Cal. Rules of Ct. Rule 3.1332(d).
NN
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i. The interests of justice will be served by the granting of the
continuance
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One of the factors that the court may consider in its determination of the need for a
O&O
continuance includes whether the “interests of justice are best served by a continuance...” Cal.
|
NY
Rules of Ct. Rule 3.1332(d)(10).
WY
Here, the interests of justice are best served by allowing an amendment to be made to the
FP
complaint naming A PERFECT DAY FRANCHISE, INC. as justice would not be served by
A
HD
requiring the plaintiff HEIDI OATIS continue to prosecute her case against a non-existent
corporate entity.
FN
The parties agree that it is preferable in this case under presently known circumstances to
ODO
amend the complaint and to continue the trial and relevant cut-off dates to allow discovery to
CD
RR
commence between these two parties and to allow the parties an opportunity to submit the matter
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to mediation, which has not yet taken place.
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EX PARTE APPLICATION HG 08425849
— 111. CONCLUSION
Based upon the foregoing, plaintiff requests that the date for the mandatory settlement
NO
conference, the pretrial conference and the date set for trial be continued to date convenient to
WD
FP
court and counsel in January and February of 2011 respectively.
NW
HD
Dated: July 14, 2010 Law Offices of Righard C.J. Wahng
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L eek SHetdon
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A PERFECT DAY
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EX PARTE APPLICATION HG 08425849
Preview
eo. © — Weangay 188 Richard C.J. Wahng (SBN 225672) Lee E. Sheldon (SBN 263310) LAW OFFICES OF RICHARD C.J. WAHNG 152 Anza Street, Suite 201 FILED NO Fremont, CA 94539 ALAMEDA Telephone (510) 490-4447 | JUL 14 2010 WY Facsimile (510) 490-1102 HBP Attorney for Defendant, A PERFECT DAY, INC. UH BN NIN SUPERIOR COURT OF THE STATE OF CALIFORNIA Oo FOR THE COUNTY OF ALAMEDA So OO as Case No.: HG08425849 ge! JANICE L. COSTANZO, YN KF cage! ASSIGNED FOR ALL PURPOSES TO: a se! Plaintiff, HON. JUDGE RONNI MACLAREN IN cme! DEPARTMENT 25 Re net! VS. YD eet! DEFENDANT’S EX PARTE cet! eet! BRB APPLICATION TO AMEND THE GARY V. REYNOLDS, and DOES ONE COMPLAINT, TO CONTINUE THE | inchasi MANDATORY SETTLEMENT att Sema! era! warner! ong NW through TWENTY, inclusive, CONFERENCE, THE PRETRIAL Defendant, CONFERENCE AND DATE DR CURRENTLY SET FOR TRIAL NH mgr Date: July 15, 2010 mee” “nee Time: 9:00 a.m. wm Ow Dept.: 25 Some Judge: Hon. Ronni MacLaren Sree Nee” See” Sere” eee BS RO Complaint Filed: December 17, 2008 Trial Date: August 16, 2010 BP = Nee NHN NY DW HN TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD: B&B BY PLEASE TAKE NOTICE that defendant A PERFECT DAY, INC. (“APD”) by and AW BY through its attorney of record, moves on an ex parte basis, pursuant to Rules 3.1332 and 3.1332 NY UWA of the California Rules of Court, to amend the complaint to name A PERFECT DAY NHN Co NM FRANCHISE, INC., to continue the date presently set for the Mandatory Settlement Conference EX PARTE APPLICATION HG 08425849 @ @ = (presently set for July 21, 2010), the date currently set for the Pretrial Conference (July 30, 2010 and the date set for Trial (currently scheduled for August 16, 2010). This continuance ig NO necessary in order to allow plaintiff HEIDI OATIS to amend the Complaint to name an existing YW BP corporate defendant in this matter and in order to allow the parties a reasonable opportunity to A conduct discovery. DH This Application is brought before the. Court pursuant to Rules 3.1332(b) and ss 3.1332(c)(2),(5)&(7) of the California Rules of Court, and is based upon this application, the COC Oo supporting memorandum of points and authorities, a signed stipulation between the parties and CO the declaration of Lee Sheldon offered in support of this ex parte application. This application is —| also based upon the complete files and records in this action that are maintained by the court as NY well as any evidence and/or argument that may be presented to the court at hearing. mmm WY In compliance with Rule 3.1204 and 3.1203, of the California Rules of Court, as well as Ff Alameda County Superior Court Local Rules, defendant’s counsel gave notice of this application A HDB to plaintiff's counsel, David Cutler at approximately 9:55 a.m. on Wednesday, July 14, 2010, by wee NHN transmitting via fax, correspondence that provided notice of the nature of this ex parte FHF application as well as the date, time and location of the hearing. [Decl. of Lee Sheldon in Support Oo DTD of ex parte Application (“Sheldon Decl. § 9). Further notice was provided by telephone. NO RO F| For the foregoing reasons, counsel for defendant, A PERFECT DAY requests that this RO NY court vacate the mandatory settlement conference date; the pre-trial conference date and the trial KROQ Ww date. FP KR Dated: July 14, 2010 Law Offices,ef Richard C.J. Wahng mH KO DH tO pO 4 . Meldon Attorney for Defendant oo NO 2 EX PARTE APPLICATION HG 08425849 we MEMORANDUM OF POINTS AND AUTHORITIES I. BRIEF FACTS NNO WO The Complaint in this case was filed by Plaintiff on December 17, 2008, naming Be defendants, “A PERFECT DAY SPA, business form unknown, and HEMANT DOE.” The A complaint alleged among other things, that a sexual battery had occurred at APD’S premises and DW that Defendants were liable to Plaintiff for said battery. On March 2, 2009, defendant A NQ PERFECT DAY, INC., a California Corporation, filed an answer to the complaint. On or about Fe September 2009, A PERFECT DAY, INC. was dissolved without the knowledge of counsel for Oo defendant A PERFECT DAY, INC. or counsel for plaintiff, HEIDI OATIS. An existing co] — corporate entity, A PERFECT DAY FRANCHISE, INC. succeeded A PERFECT DAY, INC. — — immediately thereafter. Prior to the dissolution of A PERFECT DAY, INC., A PERFECT DAY No — FRANCHISE, INC. had not been actively in business. | we — On October 9, 2009, plaintiff HEIDI OATIS filed an amendment to the complaint —_— & substituting the name, “HEMANT GU, AKA RENZHI GU, AKA REN GU, AKA REN CHU Ln — GU” for HEMANT DOE. On or about June 1, 2010, attorney Lee Sheldon inherited N — responsibility for this case from Vikram Sighamony who no longer works with the Law Offices ~] — of Richard C.J. Wahng. Upon review of the file Lee Sheldon discovered that A PERFECT oO _— DAY, INC. had been dissolved. SO —_ Immediately upon learning that A PERFECT DAY, INC. was a non-existent corporate a) NO entity, counsel for Defendant informed counsel for plaintiff HEJDI OATIS that Plaintiff would _ N need to amend the complaint to name A PERFECT DAY FRANCHISE, INC., and to continue N N the trial and relevant cut-off dates as the Law Offices of Richard C.J. Wahng could no longer WwW bo continue to represent A PERFECT DAY, INC., a non-existent entity. tO - The parties have agreed, pursuant to written stipulation that the complaint should be tN wa amended to name a existing corporate entity and that the trial and other dates in this case should we) N be continued in order to allow discovery to take place between these two parties. NO ~ MI iw Co Hl EX PARTE APPLICATION . ] oo HG 08425849 — Il. ARGUMENT WY This court should grant this ex parte application to continue the mandatory settlement WwW conference (currently set for July 21, 2010), the pretrial conference (presently set for July 30, BP nA 2010) and the trial date (currently set for August 16, 2010) because “good cause’ exists under the DA circumstances. This good cause includes allowing Plaintiff to amend the complaint to name an Omen existing corporate entity and to allow the parties a reasonable opportunity to conduct discovery. A. “Good Cause” exists to grant plaintiff?s ex parte application © D2 Pursuant to CRC Rule 3.1332(c), the party requesting a continuance must make anj mle — “affirmative showing of good cause.” The foregoing statute provides instances of good cause HN which exist under the circumstances of this case. WY mm i. Good cause exists because counsel for the Defendant can no longer to BP represent a non-existent corporate entity NW CRC Rule 3.1332(c)(2) provides a factor that “may indicate good cause,” includes “[t]he DB sa unavailability of a party because of death, illness, or other excusable circumstances.” Cal. Rules SB of Ct. Rule 3.1332(c)(2). ROR OD As stated above, defendant A PERFECT DAY, INC. was dissolved in September 2009 OD without the knowledge of counsel for the Plaintiff or Defendant. [Sheldon Decl. 7 5.] Pursuant NO YH to Section 23301 of the California Revenue and Taxation Code and Section 8722(a) of the NY NHN WD WC California Corporation Code, a corporation may not exercise any right, power or privilege during FSF NO a period of suspension or dissolution except so far as necessary for the winding up of the Tn NO corporation’s affairs. As a result, Defendant is prohibited from taking action to defend itself. WD NO Good cause further exists pursuant to Section 3-700(c)(1)(d) of the California Rules of sas NO Sa Professional Conduct, which permits an attorney to withdraw if the client makes it “unreasonably; NO EX PARTE APPLICATION . So HG 08425849 eS difficult for the attorney to carry out the employment effectively.” Here, APD cannot act while it is suspended. This prohibition prevents counsel for APD from taking any action on its behalf. NO WY B. The court may also consider other factors in ruling on an application for a HR continuance WD CRC Rule 3.1332(d) identifies a number of factors which the court must consider in| DB ruling on a motion to continue. Cal. Rules of Ct. Rule 3.1332(d). NN Co i. The interests of justice will be served by the granting of the continuance Oo One of the factors that the court may consider in its determination of the need for a O&O continuance includes whether the “interests of justice are best served by a continuance...” Cal. | NY Rules of Ct. Rule 3.1332(d)(10). WY Here, the interests of justice are best served by allowing an amendment to be made to the FP complaint naming A PERFECT DAY FRANCHISE, INC. as justice would not be served by A HD requiring the plaintiff HEIDI OATIS continue to prosecute her case against a non-existent corporate entity. FN The parties agree that it is preferable in this case under presently known circumstances to ODO amend the complaint and to continue the trial and relevant cut-off dates to allow discovery to CD RR commence between these two parties and to allow the parties an opportunity to submit the matter | to mediation, which has not yet taken place. NH RN WD HI NO FF I! OW KN Hl DB N Hl NHN NO So HH N EX PARTE APPLICATION HG 08425849 — 111. CONCLUSION Based upon the foregoing, plaintiff requests that the date for the mandatory settlement NO conference, the pretrial conference and the date set for trial be continued to date convenient to WD FP court and counsel in January and February of 2011 respectively. NW HD Dated: July 14, 2010 Law Offices of Righard C.J. Wahng Ss CO Oo L eek SHetdon omey for Defendant, &S A PERFECT DAY S| meee NY WD FF DTM FH Oo RO oF RO - NHN RO Ww DR FF RO UV KN KD NO NHN NO Qo NO EX PARTE APPLICATION HG 08425849