Response To Osc

Response

Cal. Super. - 4th Dist.June 8, 2017

Neil Pedersen, SBN 139262 PEDERSEN LAW A PROFESSIONAL LAW CORPORATION 17910 Skypark Circle, Suite 105 Irvine, California 92614 0: (949) 260-1181 F: (949) 260-1185 Attorneys for Plaintiff Geraldine Anderson SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF ORANGE-CENTRAL JUSTICE CENTER GERALDINE ANDERSON,as an individual, ) Case No.: 30-2017-00925039-CU-OE-CJC Assigned forall purposesto: Judge David Chaffee Plaintiff, Department C20 = PLAINTIFF'S RESPONSE TO OSC RE: ) ) ) ) ) ) DGW WINE GROUP, LLC dba AMAZING | DECLARATIONOFNEILBEDS ) ) ) ) ) ) ) GRAPES WINE STORE,a California limited liability company; and FREEDOMROADS, LLC, a Minnesota limited liability company. DECLARATION OF NEIL PEDERSEN Hrng Date: January 9, 2018 Hrng Time: 8:30 a.m. Dept. C-20 Case filed: June 8, 2017 Trial date: TBD Defendant. TO EACH PARTY AND THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE THAT Plaintiff Geraldine Anderson hereby responds to the Court’s issuance of an OSC re: Dismissal and Issuance of Sanctions on November 30, 2017. This response is supported by the Declaration of Neil Pedersen,attorney for Plaintiff, attached hereto. Plaintiff respectfully apologizes for the non-appearance on November 30 and requests that this court excuse the absence, not dismiss the Plaintiffs valid claims due to the excusable neglect of its attorney, and further thatthis court not issue sanctionsas the mistake that was made was unintentional and caused by somewhat unusual circumstances. PLAINTIFF'S RESPONSE TO OSC RE: DISMISSAL AND SANCTIONS -1 [3 9] 19 20 21 22 23 24 25 26 27 28 Respectfully submitted, Dated: November 30, 2017 PEDERSEN LAw, APLC By: Neil Pedersen Attorneys for Plaintiff Geraldine Anderson PLAINTIFF'S RESPONSE TO OSC RE: DISMISSAL AND SANCTIONS -2 r o 25 26 27 DECLARATION OF NEIL PEDERSEN IN SUPPORT OF RESPONSE TO OSC I, NEIL PEDERSEN, declare as follows: I'am an attorney duly licensed to practice before all California Courts and I am the principal of Pedersen Law,a professional law corporation, the attorney ofrecord for the Plaintiff, Geraldine Anderson,in this case. Ihave personal knowledge ofthe facts stated in this declaration and I know them to be true and correct, and if called to testify thereto, I would and could competently do so. 2. I' make this declaration in support of my client’s response to the issuance by this Court of an Order to Show Cause why the Complaint in the matter should not be dismissed and sanctions issued due to my non-appearance at the Case Management Conference on November 30,2017 at 8:30 a.m. in this courtroom. 3, I sincerely apologize for my non-appearance at the CMC on November 30. I did not appear because I was in Department CX-104 thinking that my appearance was in that courtroom on that day. The confusion was the result of several factors which I will explain herein. 4. First, my firm has two employmentlaw casesfiled against the same entity that filed for bankruptcy several months ago. Both matters were subject to the bankruptcy stay and both matters are now being revived following the closure of the bankruptcy proceeding, thereby ending the stay. 3 My associate attorney, McKenzee McCammack, prepared declarations that were filed on the same day in each ofthe two courtrooms in which the two matters are being handled, Department C-20 and Department CX-104. Both set forth very similar facts as they both related to the filing and later closure of the same bankruptcy, and in both we were requesting reopening of the case. 6. My firm keepsits calendar on a law practice management software known as Clio. Weplace all court appearances on the Clio calendar, and our office protocol is that when that calendar entry is placed in the firm calendar, the Department numberis included. PLAINTIFF'S RESPONSE TO OSC RE: DISMISSAL AND SANCTIONS -3 Unfortunately, when I accessed the calendar, the Department number was not included in the calendar entry. 7. My associate attorney, McKenzee McCammack, who was the one scheduled to make the appearance in this Court,resigned from the firm one week before this appearance, on the Wednesday before Thanksgiving,to take a job at another firm. I was making this appearance in lieu of Ms. McCammack. 8. To determine where I was to go for this hearing I first looked to the firm calendar but it did not have the courtroom. I then went to our network at the office and mistakenly pulled up the Declaration of Mc. McCammack for the matter in CX-104 instead of the one in C-20, and on that basis, proceeded to CX-104 for the hearing. 9. The failure to appearin this department on November 30, 2017 was not Ms. McCammack’s fault, or anyone else’s fault other than mine. I made the mistake of confusing the two matters and went to the wrong courtroom. 10. When I arrived at CX-104 I was told there was no hearing, butit did not dawn on me at that moment that the mistake was that I had confused the two matters. Instead,I only learned ofthe confusion when I return to my office and my legal assistant did some research to determine how it was that we had a matter on calendar but the court was unaware of it. It was then, at about 10:45 a.m. on November 30, 2017 that I learned I had gone to the wrong courtroom on the wrong case. | immediately called Department C-20 and spoke with Adriana Arreola who informed me that the matter was continued to January 9, 2018 and that this Court has issued an OSC regarding dismissal of the Complaint and regarding issuance of sanctions. She asked me to wait for the notice to be provided by the Clerk. 11. I'am a very conscientious attorney and we have protections in place at my firm to make sure that court dates are not missed. This one was simply a mistake that likely would not have occurred had I not just lost my associate attorney who was planning to take this hearing, but it was my mistake nonetheless. PLAINTIFF'S RESPONSE TO OSC RE: DISMISSAL AND SANCTIONS -4 25 26 27 28 12. Trespectfully request that this court not dismiss my client’s complaint because of my mistake. My client has meritorious claims that should not be discussed because ofmy excusable neglect. 13. I also respectfully request that this Court excuse my absence and notissue sanctions against my firm. As explained above,this failure to appear was in no way intentional nor even caused by reckless conduct. Given the two very similar cases with the same bankrupt defendant and the circumstancesofthe recent departure of the attorney who had primary file responsibility for this case, I sincerely hope this court can understand that this was a unique unfortunate circumstance. Executed this =~ day of November, 2017 in Irvine, California. I declare under the penalty ofperjury that the foregoing is true and correct. Neil Pedersen PLAINTIFF'S RESPONSE TO OSC RE: DISMISSAL AND SANCTIONS -5 GERALDINE ANDERSON V. DGW WINE GROUP, LLC, ET AL. ORANGE COUNTYSUPERIOR COURT, CASE NO.: 30-2017-00925039-CU-OE-CJC PROOF OF SERVICE STATE OF CALIFORNIA) ) COUNTY OF ORANGE ) 1 am employed in the County of Orange, State of California. Tam over the age of 18 and not a party to the within action. My business address is 17910 Skypark Circle, Suite 105, Irvine, California 92614. On November 30, 2017, I served the foregoing document(s) described as: PLAINTIFF’S RESPONSE TO OSC RE: DISMISSAL AND SANCTIONS; DECLARATION OF NEIL PEDERSEN on the interested parties in this action: Jeffrey F. Gersh, Esq. Attorneys for Defendants Ryan C. Duckett, Esq. Stubbs Alderton & Markiles, LLP 15260 Ventura Blvd., 20th FL Sherman Oaks, CA 91403 Phone: (818) 444-9222 Fax: (818) 444-9272 Email: jgersh@stubbsalderton.com/ rduckett@stubbsalderton.com (XX) [BY MAIL] — I am readily familiar with the firm’s practice of collection and processing correspondence for mailing. Under that practice it would be deposited with the United States Postal Service on that same day with First-Class postage thereon fully pre-paid at Irvine, California in the ordinary course of business. I am aware that on motion of the party served, service is presumed invalid if postal cancellation date or postage meter date is more than one day after date of deposit for mailing in affidavit. ( ) [BY ELECTRONIC SERVICE VIA ONELEGAL EFILING SERVICE]-] caused the above-entitled document(s) to be served through One Legal E-Filing Service at www.onelegal.com addressed to all parties appearing on the electronic service list for the above entitled case. A copy of the One Legal Service Receipt Page/Confirmation will be maintained with the original document(s) in this office. ( ) [BY FEDERAL EXPRESS/OVERNIGHT MAIL] — I caused the above-entitled document to be served on the interested parties noted above by Federal Express/Overnight Mail. I declare under penaltyofperjury under the laws ofthe State of California that the foregoing is true, correct and executed onvA30, 2017, at Irvine, California. : / 11/30/2017 GUADALUPE FLORES Li Ipdabu 2/04 DATE (TYPE OR PRINT NAME) (SIGNATURE ora PROOF OF SERVICE- 1