Motion_for_reconsiderationMotionCal. Super. - 4th Dist.October 18, 2017O e a N R W N ) B N R N N N N N N d 6 FE 0 8 2 8 3 % ww 9 a c R o R E z ELECTRONICALLY FILED Superior Court of Califarnia, Sergo Alejandro Copete (SBN 294051) County of Orange COPETE LAW FIRM 12/04/2018 at 05:02:00 PM 601 Parkcenter Drive, Suite 107 Clerk of the Superior Court Santa Ana, CA 92705 By Jeannette Dowling, Deputy Clerk Tel: (714) 376-4234 Fax: (657) 245-3271 Email: copete.sergio@copetelawfirm.com Attorney for George Lynch, Jr. SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF ORANGE- CENTRAL JUSTICE CENTER EARNEST SMITH, an individual Case No. 30-2017-00950324-CU-PO-CIC Plaintiff, DEFENDANT GEORGE NOTICE OF MOTION FOR RECONSIDERATION OF ORDER ON MOTION TO COMPEL; GEORGE LYNCH; and Does 1 through | MEMORANDUM OF POINTS AND 10, inclusive AUTHORITIES; DECLARATION OF GEORGE LYNCH AND SERGIO A. COPETE Hearing Date: Deécembér 14x2018 01/11/2019 Time: 10:00 a.m. Dept.: C21 Reservation: 281356306 VS. Defendants. Defendant GEORGE LYNCH (“Defendant”) hereby requests an Order Shortening Time for hearing on Defendant's forthcoming Motion For Reconsideration Of Order On Motion to Compel (“Motion”) pursuant to California Rule of Court § 3.1300(b) and Code of Civil Procedure § 1005(b). An Order Shortening Time on Defendant’s Motion should be granted because Defendant can demonstrate good cause necessitating a short time-frame for hearing on its Motion. Defendant seeks a shorter notice period so that Defendant does not have to pay sanctions which were imposed based on incorrect facts. Additionally, Defendant cannot adhere to the Court’s of DEFENDANT'S EX PARTE APPLICATION FOR ORDER SHORTENING TIME ON HEARING DATE FOR MOTION FOR RECONSIDERATION OF OCTOBER 19, 2018 ORDER N e 1 A N b h Bs W N N O N N O N ON N D N A vw E O N = SS DD o® Q e r E w R C S B Order because he does not have the subject discovery and never had the subject discovery. The supporting facts and the Court’s authority to grant this application are provided in the following memorandum of points and authorities and the accompanying declarations, filed concurrently herewith, STATEMENT OF FACTS IL. The facts that form the basis of the October 19, 2018 Order are not correct facts and circumstances are not consistent with what has been presented by Plaintiff. 2. Defendant read the notice for withdrawal of two Motions to Compel and was under the impression that he didn’t have to appear because they were taken off calendar. He didn’t understand he had an option to appear before the court and plead his case. See Exhibit A. 3. Specifically, despite the Declaration of Plaintiff’s counsel in his Motion to Compel, Defendant, who represented himself, did not receive a copy of the Special Interrogatories, Set One and Request for Production of Documents, Set One. 4. Defendant went to Sergio A. Copete with the Form Interrogatories and the Requests for Admissions, Sets One because that is what he received and he asked for assistance on form and format for responses to same because those were the only two discovery requests he received. 5. Defendant cannot comply with the Court’s Order to respond in 20 days to said discovery, because he still does not have a copy of same. Plaintiff therefore, respectfully requests that this Court reconsider its October 19, 2018 Order because Defendant will comply with providing responses to the discovery requests as soon as he obtains a copy. Plaintiff further respectfully requests that this Court reconsider the sanctions of $470 because Defendant was not intentionally withholding responses and did not understand that he should attend the hearing. He did not intend the Motion to be unopposed and did oppose the Motion to Compel related to the discovery he did receive. ar A Dated: October 25, 2018 COPETE LAWARM--___ - Serg Copete, Atterney for ~Preferidint GE 2. DEFENDANT'S EX PARTE APPLICATION FOR ORDER SHORTENING TIME ON HEARING DATE FOR MOTION FOR RECONSIDERATION OF OCTOBER 19, 2018 ORDER o e 1 Y h B W R ) R O R O N O N N N N N N a U R E W N = 3S Po o ® a e a r R C E = MEMORANDUM OF POINTS AND AUTHORITIES L INTRODUCTION This case arises out of Defendant’s act of kindness in helping Plaintiff who was in desperate circumstances. Defendant, out of compassion, allowed Plaintiff to sleep on his sofa for a few days. Plaintiff had been incarcerated and Defendant previously loaned him $3,000 which was 10% of the bail requirement to assist him in getting out of jail. In response to Defendant’s generosity, Plaintiff severely beat Defendant, then had the audacity to bring a suit against Defendant. Defendant, feeling wholly and completely wronged, decided that he should represent himself and because of the facts he would prevail. Defendant, when served with the Motion to Compel, took the discovery requests and motion to Sergio A. Copete to seek assistance though he still wanted to represent himself and other than form and formatting on the discovery, Defendant responded on his own behalf. Defendant only had two pieces of discovery served upon him which he presented to Mr. Copete, Form Interrogatories and Requests for Admissions. Mr. Copete counseled Defendant and assisted minimally on form and format, though Defendant continued to represent himself and draft his OWI responses to save money. Defendant was unaware that there was additional discovery and believed he had responded fully to all discovery requests. Subsequently, Defendant learned that there were two additional pieces of discovery that he had not received or did not comprehend was different or separate from the discovery he had received. Unable to respond to the discovery because he didn’t have and does not have the requests, Defendant cannot comply with the Court’s Order to respond in 20 days. Thus, the facts of the Reply are not accurate and the basis for the Order are those incorrect facts. IL LEGAL ARGUMENT A. DEFENDANT’S EX PARTE APPLICATION FOR AN ORDER SHORTENING TIME FOR THE HEARING DATE ON HIS MOTION SHOULD BE GRANTED AS Fw DEFENDANT’S EX PARTE APPLICATION FOR ORDER SHORTENING TIME ON HEARING DATE FOR MOTION FOR RECONSIDERATION OF OCTOBER 19, 2018 ORDER NO 1 aN t h A 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 DEFENDANT WILL SUFFER IRREPRARABLE HARM IF HE IS FORCED TO PAY SANCTIONS AND BECAUSE HE CANNOT COMPLY WITH THE COURT’S ORDER AND THIS COURT HAS THE STATUTORY POWER TO RECONSIDER A PRIOR ORDER AND MODIFY, AMEND OR REVOKE THE ORDER Code of Civil Procedure § 1005 (b) permits a Court to shorten time for a motion to be heard. This Court should shorten the time to be heard on a Motion for Reconsideration because Defendant will suffer irreparable harm in that the facts as presented that form the basis for the Order are incorrect and Defendant cannot comply with the Order because he has never been served with the subject discovery. California Code of Civil Procedure §1008 provides: (a) When an application for an order has been made to a judge, or to a court, and refused in whole or in part, or granted, or granted conditionally, or on terms, any party affected by the order may, within 10 days after service upon the party of written notice of entry of the order and based upon new or different facts, circumstances, or law, make application to the same judge or court that made the order, to reconsider the matter and modify, amend, or revoke the prior order. The party making the application shall state by affidavit what application was made before, when and to what judge, what order or decisions were made, and what new or different facts, circurnstances, or law are claimed to be shown. (b) A party who originally made an application for an order which was refused in whole or part, or granted conditionally or on terms, may make a subsequent application for the same order upon new or different facts, circumstances, or law, in which case it shall be shown by affidavit what application was made before, when and to what judge, what order or decisions were made, and what new or different facts, circumstances, or law are claimed to be shown. For a failure to comply with this subdivision, any order made on a subsequent application may be revoked or set aside on ex parte motion, Defendant was served with written notice of entry of the Order on October 19, 2018. Therefore this motion is timely. This Court has jurisdiction to reconsider a prior ruling or to entertain renewal of a previous motion, A decision on a motion is not res judicata, and a trial court has jurisdiction to reconsider a prior ruling or to entertain a renewal of a previous motion. See Stephen v. Enterprise Rent-A- 4. DEFENDANT’S EX PARTE APPLICATION FOR ORDER SHORTENING TIME ON HEARING DATE FOR MOTION FOR RECONSIDERATION OF OCTOBER 19, 2018 ORDER W e e w t h BR W R N ) N O O R ON R N N W E T A E S - E w a rl ~ Car (1991) 235 Cal. App. 3d 806, 816; sce also Curtin v. Koskey (1991) 231 Cal. App. 3d 873, 876 and Graham v. Hansen (1982) 128 Cal. App. 3d 965, 970. The Court in Francois v. Goel 29 Cal.Rptr.3d 249 (2005) quoting Schachter v. Citigroup, Inc., supra, 126 Cal. App.4th at p. 739, 23 Cal. Rptr.3d 920 restated: "were a party to suggest that the court reconsider a motion, the court would have every right to do so, even if that required the party to bring a new motion....” Thus, this Court has the statutory power to reconsider a prior order and modify, amend or revoke the order. In the case at bar the Defendant, previously, pro per, did not receive all of the discovery requests (See Declarations of Defendant George Lynch and Sergio A. Copete in support of this Motion). Here, good cause exists to shorten the time for a hearing on the Motion because Defendant will have to pay sanctions before the time of the Motion’s hearing date and he cannot comply with the Court’s Order to respond to the additional discovery requests because he has neve received them. Defendant would have responded to the Special Interrogatories, Set One and Request for Production of Documents at the same time he responded to the Form Interrogatories, Set One and the Requests for Admissions, Set One, if he had them at that time. Plaintiff still has never received the discovery of which he was sanctioned for failing to respond and cannot, therefore, comply with this Court’s October 19, 2018 Order. Thus, this Court should grant this Ex Parte Application. B. THIS COURT SHOULD RECONSIDER ITS PRIOR ORDER BECAUSE THE MOVING PARTY HAS MADE A SUFFICIENT SHOWING OF NEW OR DIFFERENT FACTS, CIRCUMSTANCES OR LAW This Court should reconsider its prior order due to the fact that Defendant has made a sufficient showing of new or different facts, circumstances or law in that Defendant, previously in pro per, went to Sergio A. Copete for advice related to the discovery requests he had been served with, which was only Form Interrogatories and Requests for Admissions, Sets One. -5- DEFENDANT'S EX PARTE APPLICATION FOR ORDER SHORTENING TIME ON HEARING DATE FOR MOTION FOR RECONSIDERATION OF OCTOBER 19, 2018 ORDER Defendant did not understand the various types of discovery and did not understand that he was missing two discovery requests or he would have asked for help from Mr. Copete at that time with form and format. Any reasonable person would consider that Defendant was unlikely to respond to only two pieces of discovery if he had received four. He would have responded to all or none of the discovery. Defendant went to Mr. Copete to help with his responses and responded to two discovery requests to overcome the Motion to Compel. Mr. Copete would have advised him on form and format for the other two discovery requests if he knew of their existence. However, neither Defendant or his now new counsel Mr. Copete understood that he was missing two pieces of discovery. Further, since Defendant was in pro per, he did not understand the procedures of the Court and was under the impression that he was not expected to appear at the Motion to Compel hearing as was conveyed to him. These facts are material to the basis of the original Order. Therefore, the prior order should be modified to allow Defendant time to respond to the Special Interrogatories and Requests for Production, Sets One after he receives them and to revoke the sanctions of $470 because Defendant did not deliberately fail to respond to the discovery, he simply has never received a copy of said discovery. “If the trial court believes reconsideration is warranted, it can amend, modify or revoke its previous order. (/bid.) A trial court's ruling on a motion for reconsideration is reviewed under the abuse of discretion standard. (Robbins v. Los Angeles Unified School Dist. (1992) 3 Cal. App.4th 313, 318 [4 Cal. Rptr.2d 649].)” Glade v. Glade, (1995) 38 Cal.App.4th 1441, 1457. “Without presuming to know which of the many published cases might have influenced the amendment, we may comfortably assume the substitute language, "new or different facts, circumstances, or law," was designed to approve, generally, the case law relaxation of what constitutes new or different facts justifying reconsideration.” Garcia v. Hejmadi, (1997) 58 Cal. App. 4th 674, 690. 5s DEFENDANT'S EX PARTE APPLICATION FOR ORDER SHORTENING TIME ON HEARING DATE FOR MOTION FOR RECONSIDERATION OF OCTOBER 19, 2018 ORDER Lh lm Ww ND oO e e a 10 11 12 13 14 15 16 17 18 19 20 21 2 23 24 25 26 27 “In Mink v. Superior Court, supra, the trial court denied a motion for reconsideration when all parties believed the plaintiffs’ claims were barred by the statute of limitations, but plaintiffs discovered after the ruling that the statute had not run because of an intervening weekend and court holiday. In that case, the court found the plaintiffs’ failure to discover the mutual mistake of fact before the ruling on summary adjudication excusable. (Id. at pp. 1342-1343, 4 Cal.Rptr.2d 195.y" New York Times Co. v. Superior Court, (2005) 37 Cal. Rptr. 3d 338, 344. Relying on Rains v. Superior Court (1984) 150 Cal. App.3d 933, 943-944 the court in Careau & Co. v. Security Pacific Business Credit, Inc. (1990) 222 Cal.App.3d 1371, 1386, suggested that the trial court abused its discretion in the event it denied such a motion: “Under Rains v. Superior Court (1984) 150 Cal. App.3d 933, 943-944, plaintiffs were entitled to submit proposed second amended complaints by way of a motion for reconsideration. If those second amended complaints stated any causes of action, then the trial court was obligated to (1) vacate its order which sustained the demurrers without leave to amend and (2) make a different order granting plaintiffs leave to file an amended complaint, which would include the causes of action which the trial court, in deciding the merits of the motion for reconsideration, determined were valid. [Citation.]” In Rains, psychiatric patients brought several causes of action against psychiatrists in a residential treatment program. In connection with their claim for battery, the plaintiffs alleged that although they had consented to certain types of physical violence for treatment purposes, the assaults were used to control their behavior under the guise of treatment. Rains, supra, 150 Cal.App.3d at pp. 936-937. On demurrer, the defendants argued that the plaintiffs’ admission of consent barred their battery claim, and the trial court sustained the demurrer without leave to amend. Id at p. 937. The plaintiffs moved for reconsideration and submitted a proposed complaint that contained additional allegations showing that the defendants had withheld information concerning the purpose of the assaults and batteries, and the appellate court concluded that the plaintiffs stated a valid claim. Id at p. 938. -7- DEFENDANT'S EX PARTE APPLICATION FOR ORDER SHORTENING TIME ON HEARING DATE FOR MOTION FOR RECONSIDERATION OF OCTOBER 19, 2018 ORDER o e a y BR W N R O R RN N N N ND N 9 5 RE O N =~ S 0 ® QUO &o » R E O D D B In connection with its determination that sanctions were not warranted for the plaintiffs’ procedural use of a motion for reconsideration, the Rains court determined that the “different facts” alleged in the proposed pleading sufficed as the “new or different facts” required under Code of Civil Procedure 1008, subdivision (a). Rains, supra, 150 Cal.App.3d at p. 944. In light of the “new” and “different facts” the Order on Plaintiff’s Motion to Compel of October 19, 2018 should be reconsidered and a new ruling be issued requiring Plaintiff to serve the discovery on Defendant, that Defendant respond to said discovery and that sanctions related to the Motion to Compel be revoked. B. EX PARTE NOTICE WAS PROPERLY AND TIMELY GIVEN TO PLAINTIFF Defendants counsel gave notice to Plaintiffs counsel as soon as reasonably possible via email on October 24, 2018 for a hearing on Monday October 29, 2018. Defendant met and conferred with Plaintiff's counsel regarding same by email. See Declaration of Sergio A. Copete In Support of this Ex Parte Application. III. CONCLUSION Based on the foregoing, Defendant requests that the court grant this Ex Parte Application for Order Shortening Time For Hearing on Motion for Reconsideration and modify, amend or revoke the Order and issue a new ruling requiring Plaintiff to serve the discovery on Defendant, that Defendant respond to said discovery and that sanctions related to the Motion to Compel be revoked. Dated: October 25, 2018 COPETE LAW FIRM Cn ~~ . 'S EE for ~Peféndant GEORGE LYNCH -8- DEFENDANT’S EX PARTE APPLICATION FOR ORDER SHORTENING TIME ON HEARING DATE FOR MOTION FOR RECONSIDERATION OF OCTOBER 19, 2018 ORDER Wo e e ~~ O N th B W R ) ee N O R O N N O N N N N~ & 4 RR O Q R B oS ww 9 a R o o p = DECLARATION OF GEORGE LYNCH IN SUPPORT OF EX PARTE APPLICATION FOR ORDER SHORTENIGN TIME FOR HEARING ON MOTION FOR RECONSIDERATION OF ORDER ON MOTION TO COMPEL I, GEORGE LYNCH, declare the following: 1. I am the Defendant in this action. 2, I was unaware of any discovery requests except Form Interrogatories and Requests for Admissions, Sets One and did not receive any discovery requests other than those pieces of discovery. 3. Iresponded to the discovery I received. 4. I cannot comply with the Court’s Order because I do not have the Special Interrogatories, Set One and Request for Production of Documents, Set One. 5. Tlent Plaintiff $3,000 which was 10% of the bail requirement to assist him in getting out of jail. 6. 1 allowed Plaintiff to sleep in my home for a few nights. 7. Iwas severely beaten by Plaintiff, I have the medical records and photographs that attest to Plaintiff severely beating me. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Dated this - > _ of October 2018. GEORGE IYNCH \) 9. DEFENDANT'S EX PARTE APPLICATION FOR ORDER SHORTENING TIME ON HEARING DATE FOR MOTION FOR RECONSIDERATION OF OCTOBER 19, 2018 ORDER 0 O N hh Bm Ww RN ) N O N O N O N N N N S a R S N R E S R E S E D E D S S o S DECLARATION OF SERGIO A. COPETE IN SUPPORT OF EX PARTE APPLICATION FOR ORDER SHORTENING TIME ON MOTION FOR RECONSIDERATION OF ORDER ON MOTION TO COMPEL I, SERGIO A. COMPETE, declare the following: 1. Iam the owner of the COPETE LAW FIRM and am a member in good standing of the California Bar, 2. Iam the declarant and make all statements herein of my personal knowledge, except as to those matters stated on information and belief, and as to those matters, I believe them to be true, and if called as a witness, could and would testify competently thereto. 3. Tbecame the attorney for Mr. Lynch on October 23, 2018 and filed substitution of attorney with the court through E-File on October 25, 2018. 4. 1 gave notice to Plaintiff's counsel and met and conferred regarding this Motion and a Motion to Continue Trial Date (Attached hereto as Exhibit A is a true and correct copy of my correspondence with Plaintiff’s counsel). 5. Prior to becoming his attorney, Mr. Lynch came to me for help with the form and format of responses to Form Interrogatories and Requests for Admissions, Sets One, as well as advise and form and format of his opposition. 6. He indicated to me that this was all of the discovery he had received. 7. assisted him with form and format for the responses to the above-listed discovery and he responded on his own behalf because he wanted to continue to represent himself to save money. 8. I cannot comply with the Court’s Order because I do not have the Special Interrogatories, Set One and Request for Production of Documents I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Dated this ZT of October 2018. SERGIO ALEJANDRO COPETE -10- DEFENDANT'S EX PARTE APPLICATION FOR ORDER SHORTENING TIME ON HEARING DATE FOR MOTION FOR RECONSIDERATION OF OCTOBER 19, 2018 ORDER D e e N N Un BR w R 10 11 12 13 14 15 16 17 18 19 20 21 2 23 24 25 26 27 Sergo Alejandro Copete (SBN 294051) COPETE LAW FIRM 601 Parkcenter Drive, Suite 107 Santa Ana, CA 92705 Tel: (714) 376-4234 Fax: (657) 245-3271 Email: copete.sergio@copetelawfirm.com SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF ORANGE- CENTRAL JUSTICE CENTER EARNEST SMITH, an individual Case No. 30-2017-00950324-CU-PO-CIC Plaintiff, PROOF OF SERVICE 5 Hearing Date: October 29, 2018 GEORGE LYNCH; and Does 1 through | 1ime: a.m. 10, inclusive Dept. Reservation: Defendants. PROOF F SERVICE I am over 18 years of age and not a party to this action. My business address is 601 Parkcenter Dr. Suite 107 Santa Ana, CA 92705. My electronic service address is copete.sergio@copetelawfirm.com. My sending fax machine number is 657 245 3271 On October 26, 2018, I served true copies of the following documents: DEFENDANT GEORGE LYNCH'’S EX PARTE APPLICATION FOR ORDER SHORTNING TIME FOR THE HEARING DATE ON HIS MOTION FOR RECONSIDERATION OF ORDER ON MOTION TO COMPEL; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF GEORGE LYNCH AND SERGIO A. COPETE 1 PROOF OF SERVICE N o e O N t h 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 The document was served by the following means: By United States mail. I enclosed the documents in a sealed envelope or package addressed to the persons set forth below and: 1. X deposited the sealed envelope with the United States Postal Service, with postage fully prepaid. 2. placed the envelope for collection and mailing, following ordinary business practices. I am readily familiar with this business's practice for collecting and processing correspondence for mailing with the United States Postal Service. On the same day that correspondence is placed for collection and mailing, it is deposited in the ordinary course of business with the United States Postal Service, in a sealed envelope with [Express Mail] postage fully prepaid. By overnight delivery. I enclosed the documents in an envelope or package provided by an overnight delivery carrier and addressed to the persons set forth below, with delivery fees paid or provided for. I: 1. ___ placed the envelope or package for collection and overnight delivery at an office or a regularly utilized drop box of the overnight delivery carrier. 2. __ delivered the envelope or package to an authorized courier or driver authorized by the express service carrier to receive the documents. XXXX By electronic transmission. Based on court e-filing rules, a court order, or an agreement of the parties to accept electronic service, I: 1. X electronically served the documents on the person(s] at the electronic service address[es] below. 2, ___ caused the documents to be sent to the person(s] at the electronic service address[es] set forth below via upload to By facsimile transmission. Based on a written agreement between the parties to accept service by facsimile (fax) transmission, I faxed the documents to the persons at the fax numbers set forth below. The fax transmission was reported as complete and without error. The fax transmission report was properly issued by the sending fax machine. A copy of the record of the fax transmission, which I printed out, is attached. By personal service. I personally hand delivered the document(s] to Delivery was made to attorney at [his/her] office by leaving the documents, in an envelope or package clearly labeled to identify the attorney being served, with a receptionist or an individual in charge of the office. 2 PROOF OF SERVICE O 0 0 1 a N t h 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 Delivery was made to attorney at [his/her] office by leaving the documents, in an envelope or package clearly labeled to identify the attorney being served, on the receptionist's desk, between the hours of 9:00 a.m. and 5:00 p.m. At the time of service, no receptionist or person in charge was present. Delivery was made to attorney at [his/her] residence, during which time the attorney's office was closed, by leaving the documents at the attorney's residence with or . The attorney's residence is in the same county as [his/her] office. Delivery was made to by leaving the documents at [his/her] residence with or between the hours of 8:00 a.m. and 6:00 p.m. Party being served: J. Michael Echevarria, Esq. Angelo White 610 Newport Center Dr. Suite 1200 Newport Beach, California 92660 michael@angelowhitelaw.com I am a resident or employed in the county where the mailing occurred. The envelope or package was placed in the mail at the post office in Santa Ana, California [ declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Date and place: Alejandro Copete Santa Ana, October 26, 2018 3 PROOF OF SERVICE EXHIBIT A o e a y Bh Ww 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ALYSSA MILMAN WHITE, ESQ. (SBN 160212) J. MICHAEL ECHEVARRIA, ESQ. (SBN 110418) ANGELO & WHITE 610 Newport Center Drive, Suite 1200 Newport Beach, CA 92660 Telephone: ~~ 949-640-0800 Facsimile: ~~ 949-640-0887 Attorneys for Plaintiff, ERNEST SMITH SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF ORANGE, CENTRAL JUSTICE CENTER ERNEST SMITH, an individual, Plaintiff, v. GEORGE LYNCH; and DOES 1 through 20, inclusive, Defendants. i i Case No. 30-2017-00950324-CU-PO-CIJC [Assigned for all purposes to: Hon. Deborah Servino; Dept. C21] NOTICE OF WITHDRAWAL OF: (1) MOTION TO COMPEL RESPONSES TO PLAINTIFF'S FORM INTERROGATORIES, SET ONE, AND (2) MOTION TO COMPEL RESPONSES TO PLAINTIFF'S REQUESTS FOR ADMISSIONS, SET ONE Date: October 19, 2018 Time: 10:00 a.m. Department: C21 RESERVATION NO. 72892338 and RESERVATION NO. 72892350 NOTICE OF WITHDRAWAL OF MOTION TO COMPEL RESPONSES TO FORM INTERROGATORIES AND TB AMAIITARY MOM FIA STUNT 5 T/T as TATA Se Sem wm an Te em om om TO THE COURT, ALL PARTIES AND THEIR ATTORNEYS OF RECORD: Please take notice that Plaintiff, Ernest Smith, by and through his attorney of record, J. Michael Echevarria of Angelo & White, APC, hereby withdraws his Motion to Compel Responses to Plaintiff's Form Interrogatories, Set One, and his Motion to Compel Responses to Plaintiff's Requests for Admissions, Set One. Both motions were set to be heard on October 19,2018. This motions are being withdrawn as they are moot since Defendant has served responses to the subject discovery. Dated: October 12, 2018 ANGELO & WHITE, APC ALYSSA MILMAN WHITE, ESQ. J. MICHAEL ECHEVARRIA, ESQ. Attorneys for Plaintiff Ernest Smith 2 NOTICE OF WITHDRAWAL OF MOTION TO COMPEL RESPONSES TO FORM INTERROGATORIES AND TW ESLFUEALL OT mma me rma Be Mere ewe em mm me ee 10 11 12 13 14 15 16 17 18 19 20 21 23 24 25 26 27 28 PROOF OF SERVICE STATE OF CALIFORNIA ) ) SS COUNTY OF ORANGE ) I am employed in the County of Orange, State of California. I am over the age of 18 and not a party to the within action. My business address is 610 Newport Center Drive. Ste. 1200, Newport Beach, CA 92660. On October 12, 2018, I served the following document(s) described as follows: NOTICE OF WITHDRAWAL OF: (1) MOTION TO COMPEL RESPONSES TO PLAINTIFF'S FORM INTERROGATORIES, SET ONE, AND (2) MOTION TO COMPEL RESPONSES TO PLAINTIFF’S REQUESTS FOR ADMISSIONS, SET ONE On the following interested parties in this action: George Lynch Defendant, In Pro Per 521 W. Alton Ave., Apt. D Santa Ana, CA 92707 [X] VIA OVERNIGHT MAIL/COURIER—BYy placing a true copy thereof enclosed in a sealed envelope, addressed as above, and placing each for collection by overnight mail service or overnight courier service. I am readily familiar with my firm's business practice of collection and processing of correspondence for overnight mail or overnight courier service, and any correspondence placed for collection for overnight delivery would in the ordinary course of business, be delivered to an authorized courier or delivery authorized by the overnight mail carrier to receive documents, with delivery fees paid or provided for, that same day for delivery on the following business day. I declare under penalty of perjury, under the laws of the State of California that the foregoing is true and correct. Executed on October 12, 2018, at Newport Beach, California. Stephen Gonzales PROOF OF SERVICE EXHIBIT B Sergio Copete Smith v. Lynch, trial continuance 6 messages Sergio Copete Tue, Oct 23, 2018 at 4:30 PM To: michael@angelowhitelaw.com Good afternoon Michael, | appreciate you taking my call today, where | told you that | have just been retained on this case and that based on the short time remaining for trial, | need to ask for a stipulation to continue the trial set for January and the mandatory settlement conference set for next month. As you know, my client had not engaged in discovery as he was handling the matter pro per and did not know that he had to request discovery. We need to get discovery done so we can engage in meaningful settlement negotiations and prepare for trial, so if your client is agreeable to continuing the trial, let me know and | will draft the stipulation and send it to you for review. I hope to hear from you about the continuance shortly as you mentioned over the phone. Sincerely, Sergio Copete, Esq. Copete Law Firm ® 7143765234 @ e572453 Sergio Alejandro Copete, Esq & copetesergio@copetelawfim.com California State Bar Number 294051 5 www.copetelawfirm.com Confidential email notice: This message contains information which may be confidential and privileged. Unless you are the intended addressee (or authorized to receive for the intended addressee), you may not use, copy or disclose to anyone the message or any information contained in the message. If you have received the message in error, please advise the sender by reply at copete.sergio@copetelawfirm.com and delete the message. Thank you for your consideration. Michael Echevarria Wed, Oct 24, 2018 at 8:04 AM To: Sergio Copete Cc: Alyssa Milman White , Stephen Gonzales Sergio, | was unable to secure my client's consent to a continuance so | cannot stipulate to same. The more | reflect upon the matter, moreover, the more | am convinced that good cause does not exist for a continuance. This is not a complex matter involving numerous documents and witnesses. This lawsuit involves a simple case of assault and battery with few witnesses and other than medical records, almost no documentation. The trial is scheduled for January 28, 2019, meaning that you have until December 28 to conduct discovery. This is more than ample to allow you to conduct discovery. Mr. Lynch has been aware of the trial date since he appeared at the CMC on April 20 when the trial was set. That was over six months ago. I'm not sure why he waited so long to secure counsel. When you agreed to represent him you were aware of the trial date. A settlement conference is scheduled for November 9. May | suggest that now would be a good time for your client to make a settlement offer. Let me know. We will oppose any moticn to continue the trial. J. Michael Echevarria, Esq. Attorney /\\/ ANGELO | WHITE 610 Newport Center Dr - Ste 1200 Newport Beach CA 92660 P: 949.640.0800 F: 949.640.0887 www.angelowhitelaw.com The information transmitted is intended only for the person or entity to which it is addressed, and may contain legal advice that is confidential and privileged information. Any review, retransmission, dissemination, or other uses of this information by persons or entities other than the intended recipient is prohibited. If you receive this in error, please contact the sender and delete the material from your computer. eMail may be altered electronically, the integrity of this communication cannot be guaranteed. From: Sergio Copete Sent: Tuesday, October 23, 2018 4:30 PM To: Michael Echevarria Subject: Smith v. Lynch, trial continuance [Quoted text hidden] Sergio Copete Wed, Oct 24, 2018 at 10:29 AM To: michael@angelowhitelaw.com Michael, Thank you for your prompt response. | understand your position, however, | highly disagree with your arguments. Based on this, you are hereby on notice that we are going ex parte to request a continuance of the trial and mandatory settlement conference, as well as an exparte reconsideration of the ruling on the motions to compel based on that you sent my client never received the Special Interrogatories or Requests for Production or the Motions to Compel. Further that you sent him a document in the mail informing him that he did not have to show up to the hearing date set for October, which he intended to show up at. | appreciate your professional courtesy, See you Monday. Sergio Copete, Esq. [Quoted text hidden] 2 attachments /\\/ ANGELO | WHITE Image0ot.png /\\/ ANGELO | WHITE Imge001.png Sergio Copete Wed, Oct 24, 2018 at 10:32 AM To: michael@angelowhitelaw.com Michael, We requested a hearing date for Monday October 29, 2018. | will see you there. Sincerely, Sergio Copete, Esq. [Quoted text hidden] Michael Echevarria Wed, Oct 24, 2018 at 10:42 AM To: Sergio Copete Ce: Alyssa Milman White , Stephen Gonzales Sergio, I'm not sure that this constitutes formal notice of an ex parte. What time will it be? What department? | have a CMC in another matter Monday moming (I also have another hearing Tuesday moming). I'm not sure what you are referring to when you said that | told Mr. Lynch he did not have to show up for the hearing . | told him that if he answered the discovery we would withdraw our motions. We had four motions pending and we withdrew two after we received his responses. He never responded to the other two motions. | am attaching the reply papers | filed in this regard. If you are set on moving ex parte, | ask that you provide me with formal notice and that you not do so until Wednesday (10/30) because of my time conflicts. Please advise. J. Michael Echevarria, Esq. Attorney /\\/ ANGELO | WHITE 610 Newport Center Dr - Ste 1200 Newport Beach CA 92660 P: 949.640.0800 F: 949.640.0887 www .angelowhitelaw.com The information transmitted is intended only for the person or entity to which it is addressed, and may contain legal advice that is confidential and privileged information. Any review, retransmission, dissemination, or other uses of this information by persons or entities other than the intended recipient is prohibited. If you receive this in error, please contact the sender and delete the material from your computer. eMail may be altered electronically, the integrity of this communication cannot be guaranteed. From: Sergio Copete Sent: Wednesday, October 24, 2018 10:29 AM To: Michael Echevarria Subject: Re: Smith v. Lynch, trial continuance [Quoted text hidden} 0 2018.10.12.Plaintiff's Omnibus Reply Brief in Support of Motion to Compel.pdf 857K Sergio Copete Wed, Oct 24, 2018 at 11:06 AM To: michael@angelowhitelaw.com Michael, The ex parte on the Trial and MSC continuance as well as the ex parte on the reconsideration will be heard on Department 21 at 8:30 am on Monday 29, 2018. You are formally notified. | understand you have conflicts but understand that | have conflicts every other day of the week as weil. It is in my client's best interest to move quick on this and unfortunately | am not able to accommodate your request. Regarding the motions, my client only thought there were two motions against him. He got a notice that those two motions were off calendar and did not show up. He had no idea of the other two motions, or even got the reply brief hinting him that there were other motions pending before the court. Sincerely, Sergio Copete, Esq. [Quoted text hidden] /\\/ ANGELO | WHITE Image001.png
