Opposition ObjectionsCal. Super. - 6th Dist.March 2, 2021\DOON-JON 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DOUGLAS SCOTT MAYNARD (SBN 90649) X LAW OFFICES OF MAYNARD & HOGAN ‘ 1151 Minnesota Avenue MAR '° 9 2022 'San Jose, CA 95125 Telephone: (408) 293-8500 waoamcfw SEQ,om Facsimile: (408) 293-8507 BY x RYAN NGUYEN Attorney for Defendants Michael Hart, Frances Han, Tracy Hart-DeGregorio and Gail Hafi SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SANTA CLARA Plaintiff, Case No: 21CV378991 FREDERICK HART, JR OPPOSITION T0 EX PARTE APPLICATION TO MOVE IEARING v. DATE Hearing Dates: April 26, 2022 Defendants, May 3, 2022 MICHAEL HART, FRANCES HART, TRACY HART-DEGREGORIO and GAIL HART OPPOSITION T0 EX PARTE APPLICATION TO MOVE HEARING DATE I am counsel for the Defendants in the above referenced matter. I declare that the following matters are true and correct and that I have personal knowledge of each 0f them. If called to testify With regard t0 the matters stated herein, I could and would do so competently. OPPOSITION TO EX PARTE APPLICATION TO MOVE HEARING DATE Hart v. Hart, et al. Case No. 21CV378991 1 N \DOOQONUI-hw 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1. On March 8, 2022, I received notice that Plaintiff planned to file an ex parte application to move one of the 2 pending hearing dates. However, they did not wait to hear my response to their request and they simply filed the request before I had a chance t0 respond. In my response t0 them, I asked that my responses be included in their motion so the Court would know my position. However, I learned afier hours today that they apparently did not do so, in violation(of both the rules of Professional Conduct, the Rules of Court and the Santa Clara County Rules of Conn. As a result, I am including the text of those emails here for the benefit of the Court, as to why I disagree 'with their request. Copied below is the content from those emails from earlier today, which is the same the day I learned about the proposed ex parte request. The emails should best be read from the bottom up, in time order. 2. The emails are copied below, beginning at the top with an email at 3:56 pm: Gentlemen, May l please have confirmation that my email messages will be attached to your ex parte application, and whether you are still going forward with it? Thankyou. Douglas Scott Maynard Law Offices of Maynard 8: Hogan (408) 293-8500 Sent from Mail for Windows From: Maynard Law Offices Sent: Tuesday, March 8, 2022 3:15 PM To: bdoolev@hornerlawgroup.com; Pavmon Hifai; Chorner@hornerlawgroup.com Subject: FW: Ex Parte Application To Change Hearing Date Gentlemen, Please note that | am not available for any Law & Motion hearing dates before April 26, so if the Court does move one of the hearings, it will have to be for a date that is after April 26. Thank you for your courtesy in informing the Court of this limitation on my calendar, and for not requesting any earlier dates. Douglas Scott Maynard Law Offices of Maynard & Hogan OPPOSITION T0 EX PARTE APPLICATION TO MOVE HEARING DATE Hart v. Hart, et a1. Case No. 21CV378991 2 hmw \JON 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Sent from Mail for Windows From: Maynard Law Offices Sent: Tuesday, March 8, 2022 1:25 PM To: Michael Kline Subject: Ex Parte Application To Change Hearing Date Dear Mr. Kline, In response to your request to delay the hearing on my demurrer, let me begin by saying that it is my view that the demurrer should actually be heard before your motion to amend the complaint. The reason is that the basic substance of your proposed amendment is to delete the illegal portion of the oral agreement you allege in the First Amended Complaint. The illegality of that claimed agreement is the basis for our demurrer, and deleting the illegal portions of it will not permit you‘r client to recover under it. Omitting Your Allegations ofThat the Parties Entered Into an Agreement To Defraud the Probate Court and Other Litigants in an Attempt to Avoid the Pending Demurrer is Not Proner. Your proposed Second Amended Complaint relates to the same general set of facts as the First Amended Complaint, but it omits the problematic allegations that the Plaintiff is trying to enforce an agreement to commit a fraud on the Probate Court and other litigants and changes your legal theories. Those allegations of an agreement to commit a fraud on the Probate Court will not go away by omitting them from a revised complaint. The Court needs to rule on the enforceability ofthe claimed illegal agreement, and simply omitting those allegations will not eliminate the fact that an agreement to commit fraud is part and parcel of your claimed agreement. As a result, the issues raised by my pending demurrer will need to be heard regardless of any amendment you might be permitted to make. Facts Being Omitted From The Proposed Second Amended Complaint. As you know, one of the primary bases for the pending demurrer is that, in the First Amended Complaint, your client has alleged a conspiracy/agreement between himself and the Defendants to mislead the Probate Court and other heirs of the Estate. Such an agreement cannot be enforced by the Court. Obviously, you want to delete those allegations about the illegal agreement, but that should not be permitted. Those allegations are part and parcel of the entire agreement that is being alleged by your client. Thus, ignoring those allegations by omitting them does not eliminate them from the case. For this reason, the request to amend should actually be addressed to the Court after it rules on the demurrer. The fact that you want to enforce an agreement to defraud the Court should result in an order that you not be permitted to amend at all. Thus, it would be my preference to have the Demurrer heard firét, then to consider whether the Second Amended Complaint is proper to file at all. Iwill agree to have your motion to amend heard at the demurrer hearing, or at a separate hearing thereafter. Assuming you plan to go fonNard with your ex parte application to move the Demurrer hearing, please attach this email to your application to advise the Judge of my position. lf you are unwilling to do so, please advise me immediately so l may appear in ‘ Court to present my objection personally. OPPOSITION TO EX PARTE APPLICATION T0 MOVE IIEARWG DATE Hart v. Hart, et a]. Case No. 21CV37899I 3 .p KOWKJCNU'I 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DoUglas Scott Maynard Law Offices of Maynard & Hogan Attorney for Defendants Sent from Mail for Windows From: Michael Kline Sent: Wednesday, February 16, 2022 7:04 PM To: Clifford Horner Cc: Sharon Piserchio Subject: Hart - Email and Pleadings for your review Please take a look at the attached documents (hard copies on your chair) and let me know ifl can have them filed and served on opposing counsel tomorrow (Thursday) with the following email: Mr. Maynard, According to the Court's updated online docket for the above-referenced matter, the Court’ s hearings on our Motion for Leave to Amend and your Demurrer are coming up on April 26 h and May 3rd, respectively. Unfortunately, the schedule leaves us with a deadline to file our demurrer opposition six days before the hearing on our motion to amend: 4/12/22 - Further CMC Hearing 4/20/22 - Plaintiff's deadline to file opposition to Demurrer 4/26/22 - Hearing on Plaintiff’s Motion for Leave to Amend 5/3/22 - Hearing on Demurrer As you know, if the Motion for Leave to Amend is granted on April 26th, it will render the Demurrer moot and no opposition will be needed. As a result, we would like t0 avoid spending the time and expense required to file an opposition to that Demurrer until after the Court makes its ruling. We are therefore writing to seek your agreement to stiIPulate to continue the hearing on your demurrer to the first available date after May 10. lfyou agree, l will send you a stipulation to sign that I will then need to present to the Court m support of an ex parte application. If not, | will simply make the ex parte application unilaterally. Either way, l would appreciate receiving your response to rny request by the end of this week, so that I can prepare the necessary documents for submission to the court as soon as possible. Sincerely, Michael G. Kline, Esq., CEDS Senior Associate OPPOSITION TO EX PARTE APPLICATION TO MOVE HEARING DATE Hart v. Hart, et al. Case No. 21CV378991 4 kh-bUJN ~JO\ 10 11 12 13 14 15 A16 17 18 19 20 21 22 23 24 25 26 27 28 3. As a result, I ask that the court not grant the requested relief. Should the court consider the request, the Motion to Amend should be heard at the same time as the Demurrer, 011 May 3, 2022, or at a later date. I hereby declare under penalty of perjury under the laws of the State 0f California that the foregoing is true and correct and that this Declaration was executed on January 21, 2022 at San Jose, California. t/ "'d/ fl ouglas chott Maynard Attorney for Defendants Dated: March 8, 2022 OPPOSITION TO EX PARTE APPLICATION TO MOVE HEARING DATE Hart v. Hart, et al. 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