Ex Parte Application Notice RequiredCal. Super. - 6th Dist.March 2, 2021HORNER LAW GROUP, P.C. mo s‘ amdw-y. Sum: zoo Walmn ka. Calirnmia 9459s Clifford R. Homer, Esq., State Bar No. 154353 Paymon Hifai, Esq., State Bar No. 306133 HORNERLAW GROUP, PC 800 S. Broadway, Suite 200 Walnut Creek, California 94596 chomer@hornerlawgroup.com phifai@hornerlawgroup.com Telephone: (925) 943-6570 Facsimile: (925) 943-6888 Attorneys for PlaintiffFREDERICK HART, JR. SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SANTA CLARA UNLIMITED JURISDICTION FREDERICK HART JR., an individual, Case No. 21CV378991 Plaintiff, PLAINTIFF’S EX-PARTE APPLICATION FOR ORDER SHORTENING TIME T0 vs. HEAR PLAINTIFF’S MOTION FOR LEAVE TO AMEND AND/OR MICHAEL HART, an individual; FRANCES CONTINUING ,HEARING ON HART, an individual; TRACY HART- DEFENDANTS DEMURRER DEGREGORIO, an individual; GAIL HART, gm ind.ividual, and DOES 1 through 50, Hearing Date: TBD mcluswe, Time: TBD Dept: 7 Defendants. Judge: Christopher G. Rudy Action Filed: March 2; 2021 Trial Date: N/A /// /// /// /// /// /// -1- PLAINTIFF’S EX-PARTE APPLICATION FOR ORDER SHORTENING TIME T0 HEAR PLAINTIFF’S MOTION FOR LEAVE T0 AMEND AND/OR CONTINUING HEARING ON DEFENDANTS’ DEMURRER 1 TO ALL PARTIES AND THEIRRESPECTIVE ATTORNEY(S) OF RECORD: 2 Plaintiff Frederick Hart, Jr., through his counsel, hereby applies ex-parte for an order 3 advancing the hearing on Plaintiff’s Motion for Leave to Amend the First Amended Complaint 4 which is currently scheduled for April 26, 2022 t0 a date at least ten days prior to the hearing date 5 set for Defendant’s Demurrer to {he First Amended Complaint; and/or an order continuing the date 6 of the hearing on Defendants’ Demurrer to the First Amended Complaint to a later date. Plaintiff” s 7 request is made and based upon this ex-parte application, the Memorandum of Points and 8 Authorities in support thereof, the Declaration ofPaymon Hifai, Esq., and upon such other oral and 9 documentary evidence as may be presented at the hearing on this application. 10 NEEMORANDUM OF POINTS AND AUTHORITIES 1 1 I. INTRODUCTION 12 On January 24, 2022, Plaintiff Frederick Hart, Jr. (“Hart” or “P1aintiff”) filed his Motion 13 for Leave to Amend his First Amended Complaint (“PAC”). On that same day, Defendants also 14 filed their Demurrer to the FAC. Plaintiffnotified Defendants’ counsel of his forthcoming Motion 15 for Leave t0 Amend the FAC and asked Defendant’s counsel to stipulate to same but Defendant’s . 16 counsel refused to do so. As it stands, prior to the Court Hearing the Motion for Leave to Amend 17 the FAC, the Parties would have t0 fiJlly brief the Demurrer to the FAC - despite the fact that 18 Plaintiff’s Motion for Leave to Amend would render the Demurrer to the FAC entirelym 5nd 19 unnecessafl. 20 Of course, the Motion for Leave to Amend the FAC should be fully briefed and heard before 21 the Demurrer to the FAC is briefed because the outcome of the Motion for Leave to Amend the 22 FAC will, if granted as is likely, render the Demurrer to the FAC entirely moot and unnecessary. 23 As such, Plaintiffherein seeks a Court order either advancing the hearing and briefing schedule on 24 Plaintiff‘s Motion for Leave to Amend the FAC to sometime at least ten days before the heating 25 on the Demurrer to the FAC 0r alternatively, continuing to the Hearing on the Demurrer to the FAC 26 until at least two weeks after the hearing on Plaintiff’s Motion for Leavé to Amend the FAC. 27 Simply put, the Court should continue the hearing on Defendants” Demurrer to the FAC 28 and/or advance the hearing 0n Plaintiff s Motion for Leave t0 Amend the FAC in order t0 preserve -2- gzifimmxgomm- P-C- PLAINTIFF’S EXPARTE APPLICATION FOR ORDER SHORTENING TIME To HEAR PLAINTIFF’S “““M'”“"'”'“'”‘”‘ MOTION FOR LEAVE To AMEND AND/OR CONTINUING HEARING 0N DEFENDANTS’ DEMURRER 1 judicial and party resources, time, and expense by notfirst briefing and hearing the Demurrer which 2 will more than likely be entirely moot if the Motion for Leave to Amend the FAC is granted. As 3 such, the Court should grant this Ex Parte Application and continue the Demurrer to the FAC 4 (including the briefing schedule) and/or advance the Motion for Leave to Amend the FAC 5 (including the bn‘efing schedule). ( 6 Plaintiff respectfully requests that the Court either: 1) continue the date of the hearing on 7 Defendants’ Demurrer to the First Amended Complaint from May 3, 2022 to Max 17, 2022 0r such 8 time thereafter at the Court’s convenience including the briefing schedule; or 2) advance the 9 Hearing advance the April 26, 2022 on Plaintiff’s Motion for Leave, to April 15, 2022 or sometime 10 prior. 11 II. PROCEDURAL BACKGROUND 12 A. The Complaint and Demurrer to the Complaint 13 On March 2, 2021, Plaintiff Frederick Hart, Jr. filed a complaint against his three siblings 14 as well as Michael’s wife Frances, alleging a single cause of action for partition and sale. See 15 Declaration ofPaymon Hifai In Support ofEx Parte Application (“Hifai Decl.”) fl 2. On November 16 10, 2021, the Court served via U.S. Mail an Order Sustaining Defendants’ Demurrer to the 17 Complaint with leave to amend and ordered that Plaintiff file his First Amended Complaint Within 18 10 days. Id. The Court also noted that Plaintiff was not permitted to add causes of action - as 19 discussed at the Hearing on the Demurrer - in any amended complaint without an order from the 20 Court. Id. While Plaintiff intended to amend his Complaint to add additional causes of Action, 21 Defendants’ counsel refused to stipulate to same and so Plaintiff was forced to file his First 22 Amended Complaint in that less than 10-day window fiom receipt of the Order on the Demurrer 23 and his deadline to file the FAC. Id. 24 As such, on November 19, 2021, Plaintiff filed his FAC alleging the same partition cause 25 of action. Plaintiff, through his counsel, offered to stipulate with opposing counsel to the filing of 26 a Second Amended Complaint, but Defendant did not agree. Hifai Decl., 1] 3. 27 /// 28 /// ‘ -3- :zo‘mmgngwpv P-C- PLAINTIFF’S Ex-PARTE APPLICATION FOR ORDER SHORTENING TIME To HEAR PLAINTIFF’S w“‘““’°°”““°"“”“°‘ MOTION FOR LEAVE To AMEND AND/OR CONTINUING HEARING 0N DEFENDANTS’ ' DEMURRER v \DOOQONUl-b 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 HORNER LAW GROUP, P.C. zoo s. mummy“ Sum 200 Walmn Crock, California 94596 B. Plaintiff’s Motion for Leave t0 Amend the FAC Rather than act reasonably, Defendants’ counsel - for no stated reason - refused Plaintiffs offer t0 stipulate to allow Plaintiff to leave to amend the Complaint and filed a Demurrer t0 the First Amended Complaint on January 24, 2022. Hifai Decl., fl 4. However, also on January 24, 2022, Plaintiff filed his Motion for Leave to File a Second Amended Complaint. Of course, Plaintiffnotified Defendants’ counsel that Plaintiffwould be filing the Motion for Leave to Arfiend if Defendants’ counsel didn’t stipulate to same, and that the Motion for Leave to Amend would render the Demurrer to the FAC moot. Hifai Decl., 11 5. Defendants’ Demurrer to the FAC is currently set for Hearing on May 3, 2022 while Plaintiff” s Motion for Leave to Amend that FAC is set for Hearing on April 26, 2022. Hifai Decl., 1] 6. Of course, based upon the current scheduling, the Parties would be needlessly forced to brief a demurrerfito the FAC which would be rendered moot and unnecessary once Plaintiff s Motion for Leave t0 Amend the FAC is, as is likely, granted. Hifai Decl., 1[ 7. This would needle/ssly waste judicial and party resources, time, and expense. Hifai Decl., 1] 8. III. ARGUMENT A. This Court Has Authority to Shorten Time on Plaintiff‘s Motion for Leave To Amend to File His FAC This Court may set a new hearing date and shorten time for papers to be filed pursuant to Plaintiff‘s noticed motion. See Califoi’nia Rule 0f Court 3.1300. Code Civ. Proc. § 1005 prescribes the times for written notice ofmotions and for the service and filing of supporting and opposing papers. However, Code Civ. Proc. § 1005(b) provides that “[t]he court, or a judge thereof, may prescribe a shorter time” than otherwise prescribed in § 1005. California Rules of Court, rule 3. 1300(b) states: “The court, on its own motion or 0n application for an order shortening'time supported by a declaration showing good cause, may prescribe shorter times for the filing and service of papers than the time specified in Code of Civil Procedure section 1005.” /// -_ -4- PLAINTIFF’S EX-PARTE APPLICATION FOR ORDER SHORTENING TIME TO HEAR PLAINTIFF’S MOTION FOR LEAVE TO AMEND AND/OR CONTINUING HEARING ON DEFENDANTS’ DEMURRER 1 As stated herein, good cause exists to advance the hearing 0f Plaintiff‘s Motion for Leave 2 to Amend the FAC or continue the hearing on the Demurrer to the FAC to after Plaintiff s Motion 3 for Leave to Amend the FAC in that if the current schedule stands, the parties and the Court Will 4 [be forced to unnecessarily incur additional time and expense in opposing and considering a 5 Demurrer that will be rendered moot less than a week later. Since a reasonable and slight 6 scheduling adjustment within the Court’s discretion, would avoid this potential waste, the Court 7 should grant this application. 8 As such, Plaintiff respectfully requests that the Court either: 1) continue the date of the 9 hearing 0n Defendants’ Demurrer to the First Amended Complaint from May 3, 2022 to May 17, 10 2022 or such time thereafter at the Court’s convenience including the briefing schedule; and/or 2) 11 advance the Hearing advance the April 26, 2022 on Plaintiff’s Motion for Lyeave to April 15, 2022 12 or sometime prior. 13 B. This Court Has Authority to Order Hearing on Demurrer Held on a Later Date 14 15 CRC 3.1320(d) provides, “Demurrers must be set for hearing not more than 35 days 16 following the filing of the demurrer or on the first date available to the court thereafler. For good 17 cause shown, the court may order the hearing held 0n an earlier 0r later day on notice prescribed 18 by the cou'rt.” 19 Alternatively, or in addition, to Plaintiff’s request for advancing the date of the hearing on 20 Plaintiff’s Motion for Leave to Amend, Plaintiff asks that the Court consider continuing the date 21 of the hearing on Defendant’s Demurrer, which would consequently push back Plaintiff’s deadline 22 for filing his opposition (nine court days prior to that hearing) to a date after the Court has the 23 chance to rule on Plaintiff” s Motion for Leave to Amend. 24 25 C. Ex-Parte Relief is Warranted Under the Circumstances 26 CRC 3.1202(0) provides, “An applicant must flake an affirmative factual showing in a 27 declaration containing competent testimony based on personal knowledge 0f irreparable harm, 28 immediate danger, or any other statutory basis for granting relief ex-parte.” As provided above, -5- :zmgmgzgym P-C- PLAINTIFF’S EX-PARTE APPLICATION FOR ORDER SHORTENING TIME To HEAR PLAINTIFF’S W””°"‘“‘“"°““‘””‘ MOTION FOR LEAVE To AMEND AND/OR CONTINUING HEARING 0N DEFENDANTS’ DEMURRER 1 the cited provisions of the CCP and the CRC give the Court authority to grant the ex-parte relief 2 requested, 0n a showing of good cause. 3 As stated in the Declaration of'Paymon Hifai, Esq., filed herewith, here good cause exists 4 in that, absent the granting of this application, the parties and the Court will be forced to spend 5 unnecessary tifie and expense that could be averted through a simple scheduling change that would 6 not prejudice either party. Plaintiff’s good faith attempts to stipulate to such a solution with 7 opposing counsel have been completely ignored, and Plaintiff is left with no option otrher than to 8 seek the Court’s intervention in resolving this matter. 9 10 IV. IDENTITY OF PARTIES AND THEIR ATTORNEYS 11 Rule 3 . 1202(a) of the California Rules of Court requires a statement 0f contact information 12 for each party’s attornéy, if known, or if the party has no attorney, a statement of contact 13 information for that party, ifknown. That information, as known t0 counsel for Plaintiff at the time \ 14 of application, is as follows: 15 DEFENDANTS HART, ET AL. Douglas Scott Maynard, Esq., Attorney for Defendants 16 Law Offices ofMaynard & Hogan 17 1 151 Minnesota Avenue San Jose, CA 95125 18 Telephone: 408-293-8500 19 Email: maynardlawoffices@earthlinknet ‘20 V. THIS EX-PARTE APPLICATION HAS BEEN PROPERLY NOTICED 21 California Rule of Court 3.1203 provides, in part: 22 l “A party seeking an ex-parte order must notify all parties n0 later than, 10:00 am. the Court 23 day before the ex-parte appearance, absent a showing of exceptional circumstances that justify a 24 shorter time for notice.” 25 California Rule of Court 3.1203(a). Also, an ex-parte application must be accompanied by 26 a declaration regarding notice stating: 27 (1) The notice given, including the date, time, mam‘er, afid name ofthe party informed, the 28 relief sought, any response, and whether opposition is expected and that, within the applicable time -6- Sofiimt‘w GROUP’ P'C‘ PLAINTIFF’S EX-PARTE APPLICATION FOR ORDER SHORTENING TIME TO HEAR PLAINTIFF’S W"“"‘C"W‘°"““°“°6 MOTION FOR LEAVE To AMEND AND/OR CONTINUING HEARING 0N DEFENDANTS’ DEMURRER 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 HORNER LAW GROUP, ?.C. 300 S. and\\'ny.. Suilc 200 Walnut ka. California 94596 under rule 3 . 1 203, the applicant informed the opposing party where and when the application would be made; (2) That the applicant in good faith‘attempted to inform the opposing party but was {mable t0 do s0, specifying the efforts made to inform the opposing party; or (3) That, for reasons specified, the applicant should not be required to inform the opposing party. California Rule of Court 3.1204(b). As set forth in the Declaration of Paymon Hifai, Esq., filed herewith, counsel has duly complied with the notice requirements of California Rule. 0f Court 3 1203(a) and California Rule of Court 3.1204(b). Plaintiffhas complied with the rules of this Court by notifiying opposing counsel Douglas Scott Maynard, Esq., an attorney at the law offices of Maynard & Hogan, regarding this ex-parte motion. Pursuant to rules of this Court, Plaintiff notified Defendants’ counsel that Ex-parte Applications are not set for Hearing unless the Court notifies the Parties as to same. Hifai Decl., 11 9. VI. ‘ COMPLIANCE WITH LOCAL RULE 16 While Plaintiff believes that the Court can either continue the Hearing on the Demurrer to the FAC (and briefing schedule) to somgtime after the Motion for Leave to Amend is to be briefed and heard and/or advance the Hearing on the Motion for Leave to Amend to sometime before the Demurrer to the FAC is to be bn'efed and heard and can do so absent the need for hearing, to the extent that the Court so requests or desires, moving party is available for a hearing on this Application. See Hifai Decl., fl 9 - 10. /// /// /// /// /// /// -7- PLAINTIFF’S EX-PARTE APPLICATION FOR ORDER SHORTENING TIME To HEAR PLAINTIFF’S MOTION FOR LEAVE T0 AMEND AND/OR CONTINUING HEARING ON DEFENDANTS’ DEMURRER 1 VII. CONCLUSION 2 For the foregoing reasons, and because good cause exists, Plaintiff respectfully requests 3 that this Court grant its application for an order advancing the hearing on Plaintiff’s Motion for 4 Leave to Amend, currently scheduled for April 26, 2022 and/or continuing the date of the hearing 5 on Defendants’ Demurrer to May 17, 2022 with all briefing deadlines to follow the continued 6 hearing dates. 7 8 Date: March 8, 2022 HORNER LAW GROUP’ PC 9 11 Clifford R. Homer, Esq. Paymon Hifai, Esq. 12 Attorneys for Plaintiff Frederick Hart, Jr. 13 14 15 1 6 17 1 8 19 20 21 22 23 24 ‘25 26 27 28 -8- fis‘EEEYLT: PC PLAINTIFF’S EX-PARTE APPLICATION FOR ORDER SHORTENING TIME TO HEAR PLAINTIFF’S MOTION FOR LEAVE TO AMEND ANggallllUiglgf‘INUING HEARING ON DEFENDANTS’
