Statement Case Management Conference

Cal. Super. - 6th Dist.March 24, 2021

21 CV381 078 Santa Clara - Civil CMHHbming A'I'I'ORNEY OR PARTY WITHOUT ATTORNEY (Name, State Bar number, and address): FOR COURT USE ONLY Thomas J. D'Amato - 219174 D ' Amato Law Corporation Electronically Filed 61D Avenida De Orinda by Superior Court of CA, Orinda, CA 94563 County of Santa Clara, TELEPHONENO.; (925)317-1300 FAXNo.(0ptionaI): (925)319-3239 on 1/3/2022 10:27 PM E-MAILADDRESS (Optional): tdamato@damatolc . com Reviewed By: R. Fleming ATTORNEY F0R(Name): OPA! SANTA CLARA, L . P case #21 cv381 078 SUPERIOR COURT 0F CALIFORNIA, COUNTY OF Santa Clara Envelope: 7973451 STREET ADDRESS: l 9 1 N lst St MAILING ADDRESS: CITYAND ZIPCODE: San Jose 95113 BRANCH NAME: PLAINTIFF/PETITIONER: Augustine Bowers I I DEFENDANT/RESPONDENT: CPA! SANTA CLARA, L . P CASE MANAGEMENT STATEMENT CASE NUMBER: (Check one): E UNLIMITED CASE E LIMITED CASE 2 1CV3 8 1 O 7 8 (Amount demanded (Amount demanded is $25,000 exceeds $25,000) or less) A CASE MANAGEMENT CONFERENCE is scheduled as follows: Date: January 18 , 2021 Time: 10 : 00 a .m. Dept.: 19 Div.: Room: Address of court (if different from the address above): Notice of Intent to Appear by Telephone, by (name): Thomas J . D ' Amato INSTRUCTIONS: All applicable boxes must be checked, and the specified information must be provided. 1. Party or parties (answer one): a. E This statement is submitted by party (name): b. E This statement is submitted jointly by parties (names): OPA! SANTA CLARA, L.P. , DBA OPA! AUTHENTIC GREEK CUISINE and OPA MANAGEMENT GROUP , INC . , MOLLY ADAMS , MARCUS ADAMS 2. Complaint and cross-complaint (to be answered by plaintiffs and cross-complainants only) a. The complaintwas filed on (date): b. E The cross-complaint, if any, was filed on (date): 3. Service (to be answered by plaintiffs and cross-complainants only) a. E All parties named in the complaint and cross-complaint have been sewed, have appeared, or have been dismissed. b. E The following parties named in the complaint or cross-complaint (1) E have not been served (specify names and explain why not): (2) E have been served but have not appeared and have not been dismissed (specify names): (3) E have had a default entered against them (specify names): c. E The following additional parties may be added (specify names, nature of involvement in case, and date by which they may be served): 4. Description of ca§e a- Type 0f case In complaint E cross-complaint (Describe, including causes of action): Breach of Lease; Breach of Guaranty; Demand for Judicial Reference Page 1 of 5 Form Adopted for Mandatory Use Cal. Rules of Court, Judicial Council of California CASE MANAGEMENT STATEMENT CEB rules 3120-3730 CM-1 10 [Rev. July 1, 2011] www_ceb.com www.courts.ca.gov CM-110 PLAINTIFF/PETITIONER: Augustine Bowers II CASENUMBER=- 21CV381078 DEFENDANT/RESPONDENT: OPAESANTA CLARA, L.P 4. b. Provide a brief statement of the case, including any damages. (lfpersonal injury damages are sought, specify the injury and damages claimed, including medical expenses to date [indicate source and amount], estimated future medical expenses, lost earnings to date, and estimated future lost earnings. If equitable relief is sought, describe the nature of the relief.) Plaintiff alleges breach of Lease by defendants. (Ifmore space is needed, check this box and attach a page designated as Attachment 4b.) 5. Jury or nonjury trial The party or parties request a jury trial E a nonjury trial. (lfmore than one party, provide the name of each party requesting a jury trial): 6. Trial date a. E The trial has been setfor (date): b. No trial date has been set. This case wi|| be ready for trial within 12 months of the date of the filing of the complaint (if not, explain): See attachment . Per Ordinance , this matter is premature . c. Dates on which parties or attorneys will not be available for trial (specify dates and explain reasons for unavailability): 7. Estimated length of trial The party or parties estimate that the trial wi|| take (check one): a. days (specify number): 3 - 5 b. E hours (short causes) (specify): 8. Trial representation (to be answered for each party) The party or parties wi|| be represented at trial m by the attorney or party listed in the caption E by the following: a. Attorney: b. Firm: c. Address: d. Telephone number: f. Fax number: e. E-mail address: g. Party represented:E Additional representation is described in Attachment 8. 9. PreferenceE This case is entitled to preference (specify code section): 10. Alternative dispute resolution (ADR) a. ADR information package. Please note that differentADR processes are available in different courts and communities; read the ADR information package provided by the court under rule 3.221 for information about the processes available through the court and community programs in this case. (1) For parties represented by counsel: Counsel has E has not provided the ADR information package identified in rule 3.221 to the client and reviewed ADR options with the client. (2) For seIf-represented parties: PartyE has E has not reviewed the ADR information package identified in rule 3.221. b. Referral to judicial arbitration or civil action mediation (if available). (1) E This matter is subject to mandatoryjudicial arbitration under Code of Civil Procedure section 1141 .11 or to civil action mediation under Code of Civil Procedure section 1775.3 because the amount in controversy does not exceed the statutory limit. (2) E Plaintiff elects to refer this case to judicial arbitration and agrees to limit recovery to the amount specified in Code of Civil Procedure section 1141.1 1. (3) E This case is exempt from judicial arbitration under rule 3.811 of the California Rules of Courtor from civil action mediation under Code of Civil Procedure section 1775 et seq. (specify exemption): CM-110 [Rev.JuIy1,2011] CASE MANAGEMENT STATEMENT CEB Page20f5 www.ceb.com CM-110 PLAINTIFF/PETITIONER: Augustine Bowers II DEFENDANT/RESPONDENT: OPA!SANTA CLARA, L.P CASE NUMBER: 2 lCV3 8 l O 7 8 10. c. Indicate the ADR process or processes that the party or parties are willing to participate in, have agreed to participate in, or have already participated in (check all that apply and provide the specified information): The party or parties completing this form are willing to participate in the following ADR If the party or parties completing this form in the case have agreed to participate in or have already completed an ADR process or processes, indicate the status of the processes (attach a copy of the parfies’ADR processes (check all that apply): stipulation): (1) Mediation Mediation session not yet scheduled Mediation session scheduled for (date): Agreed to complete mediation by (date): Mediation completed on (date): (2) Settlement E conference Settlement conference not yet scheduled Settlement conference scheduled for (date): Agreed to complete settlement conference by (date): Settlement conference completed on (date): (3) Neutral evaluation E Neutral evaluation not yet scheduled Neutral evaluation scheduled for (date): Agreed to complete neutral evaluation by (date): Neutral evaluation completed on (date): (4) Nonbinding judicial E arbitration Judicial arbitration not yet scheduled Judicial arbitration scheduled for (date): Agreed to complete judicial arbitration by (date): Judicial arbitration completed on (date): (5) Binding private E arbitration Private arbitration not yet scheduled Private arbitration scheduled for (date): Agreed to complete private arbitration by (date): Private arbitration completed on (date): (6) Other (specify): E DUDE DUDE DUDE DUDE DUDE DUDE ADR session not yet scheduled ADR session scheduled for (date): Agreed to complete ADR session by (date): ADR completed on (date): 0M-11o [Rev. July 1, 2011] CASE MANAGEMENT STATEMENT CEB Page 3 of 5 www.ceb.com CMfllQ PLAINTIFF/PETITIONER: August ine Bowers I I CASE NUMBER:_ 2 1CV3 8 1 o 7 8 DEFENDANT/RESPONDENT: CPA l SANTA CLARA, L . P 11. Insurance a. E Insurance carrier, if any, for party filing this statement (name): b. Reservation of rights: E Yes E No c. E Coverage issues will significantly affect resolution of this case (explain): 12. Jurisdiction Indicate any matters that may affect the court's jurisdiction or processing of this case and describe the status.E Bankruptcy E Other (specify): Status: 13. Related cases, consolidation, and coordination a_ E There are companion, underlying, or related cases. (1) Name of case: (2) Name of court: (3) Case number: (4) Status:E Additional cases are described in Attachment 13a. b_ E A motion to E consolidate E coordinate will be filed by (name party): 14. Bifurcation The party or parties intend to file a motion for an order bifurcating, severing, or coordinating the following issues or causes of action (specifi/ moving parfy, type of motion, and reasons): De fendant s Reserve 15. Other motions The party or parties expect to file the following motions before trial (specify moving party, type of motion, and issues): Defendants Reserve 16. Discovery a. E The party or parties have completed all discovery. b. The following discovery will be completed by the date specified (describe all anticipated discovery): Pfl Descrigtion % Defendants Written Discovery August 2022 Defendants Oral Deposition November 2022 Defendants Experts per code c_ E The following discovery issues, including issues regarding the discovery of electronically stored information, are anticipated (specify): CM-“O [ReV-Ju'v 1120111 CASE MANAGEMENT STATEMENT CEB Page4°f5 www.ceb.com CM-110 PLAINTIFF/PETITIONER: Augustine Bowers I I CASE NUMBER:- 2 lCV3 8 l O '7 8 DEFENDANT/RESPONDENT: OPA! SANTA CLARA, L . P 17. Economic litigation a.E This is a limited civil case (i.e., the amount demanded is $25,000 or less) and the economic litigation procedures in Code of Civil Procedure sections 90-98 will apply to this case. b.E This is a limited civil case and a motion to withdraw the case from the economic litigation procedures or for additional discovery will be filed (if checked, explain specifically why economic litigation procedures relating to discovery or trial should not apply to this case): 18. Other issuesE The party or parties request that the following additional matters be considered or determined at the case management conference (specify): See attachment . 19. Meet and confer a. | X I The party or parties have met and conferred with all parties on all subjects required by rule 3.724 ofthe California Rules of Court (if not, explain): Counsel for Defendants previously contacted counsel for Plaintiff, but received no response. b. After meeting and conferring as required by rule 3.724 of the California Rules of Court, the parties agree on the following (specify): 20. Total number of pages attached (if any): 1 | am completely familiar with this case and wi|| be fully prepared to discuss the status of discovery and alternative dispute resolution, as well as other issues raised by this statement, and will possess the authority to enter into stipulations on these issues at the time of the case management conference, including the written authority of the party where required. Date:January 3, 2022 z g Thomas J. D'Amato ’ (TYPE OR PRINT NAME) (SIGNATURE OF PARTY OR ATTORNEY) (TYPE OR PRINT NAME) (SIGNATURE 0F PARTY OR A'I'I'ORNEY)E Additional signatures are attached. CM-“O [ReV-Ju'v 11°11] CASE MANAGEMENT STATEMENT CEB Pages“ www.ceb.com MC-025 SHORT TITLE: CASE NUMBER:- Augustine Bowers II V OPA! Santa Clara, L.P. 21CV381078 ATTACHMENT (Number): 4b (This Attachment may be used with any Judicial Council form.) Pursuant t0 certain Santa Clara County Urgency Ordinances for COVID impacted tenants (“Ordinances”), including NS-9.299, OPA! Santa Clara, L.P. has until February 14, 2022 t0 repay 50% of any rent charges incurred during the time period ofMarch 1, 2020 through August 18, 2021 (“Deferred Rent”) for its commercial lease of 2722 Augustine Drive, Suite 1520, Santa Clara (the “Premises”). The residual 50% 0f Deferred Rent for the Premises has a repayment deadline 0f August 17, 2022. In addition t0 providing the above-described mandatory repayment plan, the Ordinances, specifically NS-9.287, prohibit a landlord from undertaking any actions “to prevent a Tenant from acquiring rights” under the Ordinances and prohibits retaliation, in any manner, against a tenant for it exercising its right t0 a deferred payment plan. A failure to comply With the Ordinances “will subject the [0]Wner t0 civil fines and penalties” and any additional relief that “the court deems appropriate.” In Ordinances, Augustine Bowers H’s complaint and ongoing discovery efforts are premature and impermissible as to all defendants. This action should be dismissed or otherwise stayed pending Defendants’ exercising their rights under the Ordinances. In addition t0 the required delayed repayment plan under the Ordinances, OPA! Santa Clara, L.P.’s foundational obligation to pay rent and other charges have been independently excused on numerous legal and equitable grounds including, without limitation to, the doctrines of impossibility and impracticability, frustration of purpose, and illegality. (If the item that this Attachment concerns is made under penalty of perjury, all statements in this Page 1 of 1 Attachment are made under penalty of perjury.) (Add pages as required) Form Approved for Optional Use ATTACHMENT www.courtinfo.ca.gov Judicial Council of California MC-025[Rev.JuIy1,2009] to Judicial Council Form