Preview
1 LAW OFFICES OF RICHARD JACOBS
RICHARD JACOBS, SBN 252226
2 13512 Hatteras St.
Valley Glen, California 91401
3 Tel: (818) 216-0663
Fax: (818) 780-8696
4 RichardJacobsLaw@gmail.com
5 Attorneys for Plaintiff, BIG WASHINGTON, LLC.
6
7
SUPERIOR COURT OF THE STATE OF CALIFORNIA
8
FOR THE COUNTY OF KERN – METROPOLITAN DIVISION
9
10 BIG WASHINTON, LLC., a Case No.: BCV17-102341 SDS
California Limited Liability
11 Company EX PARTE APPLICATION TO ADVANCE HEARING
DATE ON PENDING MOTION RE: DEPOSITION
12 Plaintiff; DATE FOR STEPHANIE SMITH
13 v. Date: March 17, 2022
Time: 8:30 a.m.
14 BENHONG (AMERICA) Dept.: H
RECYCLING CO. LTD, a
15 California Limited Liability
Company; and THOMAS H.
16 FRY; RUTH M. FRY, as
Trustees of the T & R FRY
17 FAMILY TRUST, and Does 1 to
100,
18
Defendants.
19
20
21
22
23
24
25
26
27
28
-1-
1 NOTICE OF MOTION AND MOTION
2 PLEASE TAKE NOTICE that on the date and time set forth above, or as early
3 as the Court may hear the matter, Plaintiff will move the Court to hear the pending
4 motion to advance the deposition date for Stephanie Smith.
5
This ex parte is necessary because Plaintiff has offered the non-party
6
Stephanie Smith appear for deposition prior to the date ordered by the Court.
However, Defendant refuses to take the deposition. Plaintiff previously attempted to
7
resolve this matter via ex parte, but the Court stated that it wanted the matter heard
8
on a scheduled motion. Therefore, Plaintiff filed the matter as a regular motion, but
9
cannot obtain a hearing date in time. Therefore, Plaintiff respectfully requests the
10
Court set the matter on shortened time given that it is already briefed by both
11
parties.
12
This ex parte is based upon the moving papers, memorandum, exhibits,
13
declarations, the concurrently filed motion and its papers, and the Court’s file in this
14
matter, as well as any evidence that may be presented at the hearing.
15
March 16, 2022
16
17
18 ___________________________________
19 Richard Jacobs, Esq.
20
21
22
23
24
25
26
27
28
-2-
1 MEMORANDUM OF POINTS AND AUTHORITIES
2 I. BASIS FOR THE EX PARTE
3 This matter was originally heard via an ex parte, but the Court informed
4 Plaintiff that it wanted a fully briefed and scheduled motion. Plaintiff refiled the
5
paperwork as a regular motion, but respectfully needs the Court to set the matter for
6
shortened time. Both parties have already submitted their briefs.
II. UNDERLYING ISSUE IN THE MOTION
7
The Court ordered Plaintiff’s PMK and non-party witnesses Ben Eilenberg,
8
Martin Smith, and Stephanie Smith to appear for in-person depositions. Plaintiff’s
9
PMK and Ben Eilenberg have offered to appear multiple times, but Defendants
10
refuse to take the deposition. Martin Smith flew to California from Florida to have his
11
deposition taken, but Defendants refused to take the deposition, insisting on taking
12
Stephanie Smith’s deposition first.
13
Stephanie Smith and fellow deponent non-party Martin Smith have five
14
children and they live in Florida. Therefore, since the Court has ordered in-person
15
depositions, Stephanie Smith and Martin Smith need to each fly out to have their
16
depositions taken while the other remains home watching their five children in
17
Florida.
18
Plaintiff offered various dates to Defendants for Stephanie Smith’s deposition,
19 as they insist on taking that deposition first. Defendants now refuse to take
20 Stephanie Smith’s deposition unless she and Martin Smith both fly out from Florida
21 simultaneously, either forcing them to bring five children on cross-country flights or
22 leaving the children alone in Florida for several days. Neither is tenable.
23 Plaintiff offered Stephanie Smith for deposition on any date between February
24 22, 2022 through February 25, 2022, but Defendants refused. Plaintiff has now
25 arranged for Stephanie Smith to be available for an in-person deposition between
26 March 29, 2022 to April 1, 2022, but Defendants once again are refusing.
27
28
-3-
1 Therefore, Plaintiff respectfully requests the Court order Defendants to take
2 Stephanie Smith’s deposition on one of the multiple offered dates of March 29, 2022
3 through April 1, 2022.
4 III. CONCLUSION
5
As per the Court’s prior guidance, Plaintiff has set this matter for a hearing
6
where the matter can be fully briefed. It is now fully briefed. Therefore, Plaintiff
respectfully requests the Court to set the hearing for a date soon enough that the
7
hearing will not be moot.
8
March 16, 2022
9
10
11
___________________________________
12 Richard Jacobs, Esq.
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
-4-
1 DECLARATION OF RICHARD B. JACOBS
2 1. I am the attorney of record for Plaintiff in this matter. If called to testify I
3 could and would testify to the following:
4 2. I provided notice of this ex parte in accordance with the Rules of Court
5
and local rules to William Alexander.
6
I swear under the laws of California that the foregoing is true and correct, and
the this declaration was executed on March 16, 2022.
7
8
9
___________________________________
10
Richard Jacobs, Esq.
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
-1-
PROOF OF SERVICE )
1 STATE OF CALIFORNIA ) ss:
COUNTY OF LOS ANGELES )
2
I am employed in the City and County of Los Angeles, State of California.
3 I am over the age of 18 and not a party to the within action. My business
address is 13512 Hatteras St., Valley Glen, CA 91401. My electronic service
4 address is RichardJacobsLaw@gmail.com. I am readily familiar with the
business' practice for filing electronically, and the documents listed below have
5 been or will be electronically served this same day in the ordinary course of
business following ordinary business practices.
6
On March 16, 2022, I electronically served 1 and delivered the following
7 documents via overnight delivery. These documents are described as:
8 EX PARTE APPLICATION
9 William Alexander
Elizabeth Estrada
10 1925 G Street
Bakersfield, CA 93301
11
12 A true and correct copy of transmittal will be produced if requested by any
party or the court.
13
I declare under penalty of perjury under the laws of the state of California
14 that the above is true and correct and was executed on March 16, 2022, at
Valley Glen, California 91607.
15
16
_______________________
17
Richard Jacobs
18
19
20
21
22
23
24
25
26
1 Duly served in accordance with California Rules of Court, rule 2.251.
27 Effective January 1, 2019.
28
-2-
Preview
1 LAW OFFICES OF RICHARD JACOBS RICHARD JACOBS, SBN 252226 2 13512 Hatteras St. Valley Glen, California 91401 3 Tel: (818) 216-0663 Fax: (818) 780-8696 4 RichardJacobsLaw@gmail.com 5 Attorneys for Plaintiff, BIG WASHINGTON, LLC. 6 7 SUPERIOR COURT OF THE STATE OF CALIFORNIA 8 FOR THE COUNTY OF KERN – METROPOLITAN DIVISION 9 10 BIG WASHINTON, LLC., a Case No.: BCV17-102341 SDS California Limited Liability 11 Company EX PARTE APPLICATION TO ADVANCE HEARING DATE ON PENDING MOTION RE: DEPOSITION 12 Plaintiff; DATE FOR STEPHANIE SMITH 13 v. Date: March 17, 2022 Time: 8:30 a.m. 14 BENHONG (AMERICA) Dept.: H RECYCLING CO. LTD, a 15 California Limited Liability Company; and THOMAS H. 16 FRY; RUTH M. FRY, as Trustees of the T & R FRY 17 FAMILY TRUST, and Does 1 to 100, 18 Defendants. 19 20 21 22 23 24 25 26 27 28 -1- 1 NOTICE OF MOTION AND MOTION 2 PLEASE TAKE NOTICE that on the date and time set forth above, or as early 3 as the Court may hear the matter, Plaintiff will move the Court to hear the pending 4 motion to advance the deposition date for Stephanie Smith. 5 This ex parte is necessary because Plaintiff has offered the non-party 6 Stephanie Smith appear for deposition prior to the date ordered by the Court. However, Defendant refuses to take the deposition. Plaintiff previously attempted to 7 resolve this matter via ex parte, but the Court stated that it wanted the matter heard 8 on a scheduled motion. Therefore, Plaintiff filed the matter as a regular motion, but 9 cannot obtain a hearing date in time. Therefore, Plaintiff respectfully requests the 10 Court set the matter on shortened time given that it is already briefed by both 11 parties. 12 This ex parte is based upon the moving papers, memorandum, exhibits, 13 declarations, the concurrently filed motion and its papers, and the Court’s file in this 14 matter, as well as any evidence that may be presented at the hearing. 15 March 16, 2022 16 17 18 ___________________________________ 19 Richard Jacobs, Esq. 20 21 22 23 24 25 26 27 28 -2- 1 MEMORANDUM OF POINTS AND AUTHORITIES 2 I. BASIS FOR THE EX PARTE 3 This matter was originally heard via an ex parte, but the Court informed 4 Plaintiff that it wanted a fully briefed and scheduled motion. Plaintiff refiled the 5 paperwork as a regular motion, but respectfully needs the Court to set the matter for 6 shortened time. Both parties have already submitted their briefs. II. UNDERLYING ISSUE IN THE MOTION 7 The Court ordered Plaintiff’s PMK and non-party witnesses Ben Eilenberg, 8 Martin Smith, and Stephanie Smith to appear for in-person depositions. Plaintiff’s 9 PMK and Ben Eilenberg have offered to appear multiple times, but Defendants 10 refuse to take the deposition. Martin Smith flew to California from Florida to have his 11 deposition taken, but Defendants refused to take the deposition, insisting on taking 12 Stephanie Smith’s deposition first. 13 Stephanie Smith and fellow deponent non-party Martin Smith have five 14 children and they live in Florida. Therefore, since the Court has ordered in-person 15 depositions, Stephanie Smith and Martin Smith need to each fly out to have their 16 depositions taken while the other remains home watching their five children in 17 Florida. 18 Plaintiff offered various dates to Defendants for Stephanie Smith’s deposition, 19 as they insist on taking that deposition first. Defendants now refuse to take 20 Stephanie Smith’s deposition unless she and Martin Smith both fly out from Florida 21 simultaneously, either forcing them to bring five children on cross-country flights or 22 leaving the children alone in Florida for several days. Neither is tenable. 23 Plaintiff offered Stephanie Smith for deposition on any date between February 24 22, 2022 through February 25, 2022, but Defendants refused. Plaintiff has now 25 arranged for Stephanie Smith to be available for an in-person deposition between 26 March 29, 2022 to April 1, 2022, but Defendants once again are refusing. 27 28 -3- 1 Therefore, Plaintiff respectfully requests the Court order Defendants to take 2 Stephanie Smith’s deposition on one of the multiple offered dates of March 29, 2022 3 through April 1, 2022. 4 III. CONCLUSION 5 As per the Court’s prior guidance, Plaintiff has set this matter for a hearing 6 where the matter can be fully briefed. It is now fully briefed. Therefore, Plaintiff respectfully requests the Court to set the hearing for a date soon enough that the 7 hearing will not be moot. 8 March 16, 2022 9 10 11 ___________________________________ 12 Richard Jacobs, Esq. 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -4- 1 DECLARATION OF RICHARD B. JACOBS 2 1. I am the attorney of record for Plaintiff in this matter. If called to testify I 3 could and would testify to the following: 4 2. I provided notice of this ex parte in accordance with the Rules of Court 5 and local rules to William Alexander. 6 I swear under the laws of California that the foregoing is true and correct, and the this declaration was executed on March 16, 2022. 7 8 9 ___________________________________ 10 Richard Jacobs, Esq. 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -1- PROOF OF SERVICE ) 1 STATE OF CALIFORNIA ) ss: COUNTY OF LOS ANGELES ) 2 I am employed in the City and County of Los Angeles, State of California. 3 I am over the age of 18 and not a party to the within action. My business address is 13512 Hatteras St., Valley Glen, CA 91401. My electronic service 4 address is RichardJacobsLaw@gmail.com. I am readily familiar with the business' practice for filing electronically, and the documents listed below have 5 been or will be electronically served this same day in the ordinary course of business following ordinary business practices. 6 On March 16, 2022, I electronically served 1 and delivered the following 7 documents via overnight delivery. These documents are described as: 8 EX PARTE APPLICATION 9 William Alexander Elizabeth Estrada 10 1925 G Street Bakersfield, CA 93301 11 12 A true and correct copy of transmittal will be produced if requested by any party or the court. 13 I declare under penalty of perjury under the laws of the state of California 14 that the above is true and correct and was executed on March 16, 2022, at Valley Glen, California 91607. 15 16 _______________________ 17 Richard Jacobs 18 19 20 21 22 23 24 25 26 1 Duly served in accordance with California Rules of Court, rule 2.251. 27 Effective January 1, 2019. 28 -2-