Motion For Order To Stay Proceedings Or In The Alternative Continue The Trial Date Until After The Pending Appeal Is Completed

Motion

Cal. Super. - 4th Dist.March 5, 2018

© 0 9 a Wn BA W N = N N N N N N N N m e m e m e m e m p m e e p d ~N O N rn A W D = O 0 S W N = O 28 CALLARI & SUMMERS 34197 Pacific Coast Hwy, Suite 100 Dana Point, CA 92629 Andrew C. Callari (Bar No. 159003) CALLARI & SUMMERS 34197 Pacific Coast Hwy, Suite 100 Dana Point, California 92629 Telephone: (714) 371-4110 Facsimile: (714) 842-7915 Email: ac(@callarisummers.com Attorneys for Plaintiff and Cross-Defendant CALIBER PAVING COMPANY, INC. SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF ORANGE - CENTRAL JUSTICE CENTER THEREOF AND RELATED CROSS-COMPLAINT CALIBER PAVING COMPANY, INC.,a ) Case No.: 30-2018-00977441-CU-BC-CJC California corporation, ) ) ASSIGNED FOR ALL PURPOSES To: Plaintiff, ) HON. GLENN SALTER, DEPT. C22 ) ) NOTICE OF MOTION AND MOTION BY VS. ) CALIBER PAVING COMPANY, INC. FOR ) ORDER TO STAY THE TRIAL DATE ) PENDING THE OUTCOME OF APPEAL STEVE FODOR CONSTRUCTION INC.,a ) PURSUANT TO THE COURT’S INHERENT California corporation; and REXFORD ) POWER UNDER CCP § 187 OR, IN THE INDUSTRIAL REALTY AND ) ALTERNATIVE, TO CONTINUE THE TRIAL MANAGEMENT, INC., a California ) DATE PENDING THE OUTCOME OF THE corporation, ) APPEAL PURSUANT TO CALIFORNIA RULE ) OF COURT 3.1332; DECLARATION OF Defendants. ) ANDREW CALLARI, ESQ. IN SUPPORT ) ) ) ) RESERVATION NO. 73198428 - Motion for Order to Stay Proceedings RESERVATION NO. 73198429 - Motion for Continuance of Trial Hearing Date: February 6, 2020 Time: 1:30 p.m. Department: C22 Complaint Filed: March 5, 2018 Trial Date: March 30, 2020 o1- MOTION BY CALIBER PAVING COMPANY TO STAY TRIAL DATE PENDING OUTCOME OF APPEAL OR, IN THE ALTERNATIVE, TO CONTINUE TRIAL DATE PENDING OUTCOME OF APPEAL [Caliber Paving vs. Steve Fodor Construction, et al., OCSC Case No. 30-2018-00977441-CU-BC-CJC] © 0 9 a Wn BA W N = N N N N N N N N m e m e m e m e m p m e e p d ~N O N rn A W D = O 0 S W N = O 28 CALLARI & SUMMERS 34197 Pacific Coast Hwy, Suite 100 Dana Point, CA 92629 NOTICE OF MOTION TO THE HONORABLE GLENN SALTER, DEPARTMENT C22 AND ALL PARTIES AND THEIR COUNSEL OF RECORD: PLEASE TAKE NOTICE that on February 6, 2020 at 1:30 p.m., or as soon thereafter as this matter may be heard, in Department C22 of the Orange County, Central Justice Center, located at 700 Civic Center Drive West, Santa Ana, California 92701, CALIBER PAVING COMPANY, INC. (“Caliber Paving”) will bring on for hearing its Motion for an Order to Stay the Trial Date Pending the Outcome of the Appeal, pursuant to the Court’s inherent powers under Code of Civil Procedure § 187 [RESERVATION NO. 73198428 - Motion for Order to Stay Proceedings] or, in the alternative, an Order to Continue the Trial Date Pending the Outcome of the Appeal, pursuant to California Rule of Court 3.1332 [RESERVATION NO. 73198429 - Motion for Continuance of Trial]. The pending appeal referenced herein is Court of Appeal Case No. G058406. The Motion, as it relates to the request for an Order to Stay the Trial Date Pending the Outcome of the Appeal, is brought pursuant to the Court’s inherent powers under Code of Civil Procedure § 187 on grounds that it is in the interest of justice and promotes judicial efficiency and conserves the resources of the parties and eliminates the risk of having two trials with many of the same witnesses and substantial amounts of the same evidence and avoids the risk of inconsistent judgments if there were two trials. The Motion, as it relates to the alternative request for an Order to Continue the Trial Date Pending the Outcome of the Appeal, is brought pursuant to California Rule of Court 3.1332 on the same grounds, namely, that it is in the interest of justice and promotes judicial efficiency and conserves the resources of the parties and eliminates the risk of having two trials with many of the same witnesses and substantial amounts of the same evidence and avoids the risk of inconsistent judgments if there were two trials. Il Il Il Il 2 MOTION BY CALIBER PAVING COMPANY TO STAY TRIAL DATE PENDING OUTCOME OF APPEAL OR, IN THE ALTERNATIVE, TO CONTINUE TRIAL DATE PENDING OUTCOME OF APPEAL [Caliber Paving vs. Steve Fodor Construction, et al., OCSC Case No. 30-2018-00977441-CU-BC-CJC] 1 This Motion is based upon this Notice, the Memorandum of Points and Authorities set forth 2 || herein, the [Proposed] Order filed concurrently herewith, the complete files and records of this action, 3 || and upon such other matters as may properly be presented at the hearing on this Motion. 4 5 ||DATED: January 8, 2020 CALLARI & SUMMERS 6 ; . : Clb, 8 Andrew C. Callari Attorneys for Plaintiff and Cross-Defendant 9 CALIBER PAVING COMPANY, INC. 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CALLARI 3. SUMMERS 34197 Pacific Coast MOTION BY CALIBER PAVING COMPANY TO STAY TRIAL DATE PENDING OUTCOME OF APPEAL OR, a IN THE ALTERNATIVE, TO CONTINUE TRIAL DATE PENDING OUTCOME OF APPEAL 92629 [Caliber Paving vs. Steve Fodor Construction, et al.,, OCSC Case No. 30-2018-00977441-CU-BC-CIC] © 0 9 a Wn BA W N = N N N N N N N N m e m e m e m e m p m e e p d ~N O N rn A W D = O 0 S W N = O 28 CALLARI & SUMMERS 34197 Pacific Coast Hwy, Suite 100 Dana Point, CA 92629 MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION AND SUMMARY OF ARGUMENT This Motion is necessitated by the pending appeal by Caliber Paving (Court of Appeal Case No. G058406) on the single issue of what constitutes a “stranger to a contract” for purposes of a claim for interference with contract. Rexford Industrial Realty and Management, Inc. (“Rexford”) is the Respondent in the pending appeal. Steve Fodor Construction, Inc. (“SFC”) is not a party to the pending appeal. Rexford and SFC are both represented by the same counsel, Tom Chun. This Motion should be granted pursuant to the Court’s inherent powers under Code of Civil Procedure § 187, staying all proceedings (including the trial) in this action until after the Fourth District Court of Appeal rules on the pending appeal, for the following reasons: (1) to avoid the risk of two trials which will present substantially the same evidence and testimony, (2) to avoid the risk of inconsistent judgments, (3) to conserve judicial resources, (4) to conserve party resources, and (5) to protect both party and third-party witnesses from the risk of having to testify in two separate trials. With both parties requesting a jury trial, there is also the risk of empaneling two juries to hear substantially the same case. A “stay” is the proper procedure here because a “stay” describes “postponements” which “freeze a proceeding for an indefinite period, until the occurrence of an event that is usually extrinsic to the litigation and beyond the plaintiff’s control.” Gaines v. Fidelity Nat’l Title Ins. Co., 62 Cal.4th 1081, 1092 (2016). A postponement of proceedings “until the pending appeal has been decided” or “pending ruling on appeal” or indicating that “trial to be reset ... after ruling of appellate court” constitutes a “stay” rather than a “continuance.” Id. (ellipsis in original) (referring to and citing to Holland v. Dave Altman’s R.V. Center, 222 Cal.App.3d 477, 482 (1988) (discussed below)). The ce California Supreme Court in Gaines recognized that “‘it is plain ... the court did not intend to postpone trial to a known date. Instead, it put the trial over indefinitely, until the happening of a designated event: determination of the ... appeal. The legal effect of this order was to stay, rather than continue the trial.’” 1d. (quoting Holland) (italics added). A continuance, on the other hand, occurs when the postponement is to a designated date, often by stipulation of the parties, with the trial _4- MOTION BY CALIBER PAVING COMPANY TO STAY TRIAL DATE PENDING OUTCOME OF APPEAL OR, IN THE ALTERNATIVE, TO CONTINUE TRIAL DATE PENDING OUTCOME OF APPEAL [Caliber Paving vs. Steve Fodor Construction, et al., OCSC Case No. 30-2018-00977441-CU-BC-CJC] © 0 9 a Wn BA W N = N N N N N N N N m e m e m e m e m p m e e p d ~N O N rn A W D = O 0 S W N = O 28 CALLARI & SUMMERS 34197 Pacific Coast Hwy, Suite 100 Dana Point, CA 92629 court’s consent, or by a trial court order. Id. at 1093 (also noting that, in contrast to a stay, “stipulated continuances ... are not tied to any matter outside the parties’ control”). In the alternative, if this Court determines that the proper procedure is not to stay the proceedings, but, rather, an Order to continue the trial date, this Motion should be granted for the same reasons and pursuant to the factors set forth in California Rule of Court 3.1332 with the same result. Namely, the trial date should be continued until the pending appeal has been decided. Caliber Paving’s counsel attempted to avoid filing this Motion by requesting Rexford’s counsel to stipulate to the requested stay/continuance. Several emails between counsel were exchanged in an attempt to resolve the issue presented by this Motion. However, no agreement could be reached. See Declaration of Andrew Callari, set forth below. II. PROCEDURAL STATUS OF THE CASE AND SUMMARY OF ISSUES ON APPEAL Caliber Paving’s Complaint asserts two causes of action: (1) Breach of Contract against SFC and (2) Intentional Interference with Contract against Rexford. Rexford has been dismissed, as discussed more fully below. SFC remains as a defendant (and cross-complainant). Trial is currently set for March 30, 2020. This Court granted Rexford’s motion for summary judgment on grounds that Rexford, as the property owner where the paving construction work was performed by Caliber (and despite its status as a noncontracting party), is not a “stranger to the contract” and, therefore, cannot be held liable for interference with the contract at issue between Caliber Paving and SCF. Caliber Paving has appealed that ruling in the pending appeal which Caliber Paving respectfully submits necessitates that this Motion be filed. Three Districts of the Court of Appeal have considered the identical issue to be determined in Caliber Paving’s pending appeal - the Second District, the Sixth District and the First District. All three Districts of the Court of Appeal have concluded that the phrase “stranger to a contract” means “noncontracting party.” These cases include: Redfearn [20 Cal.App.5th 989 (2018) (Second District)], Popescu [1 Cal. App.5th 39 (2016) (Sixth District)], Asahi [222 Cal. App.4th 945 (2013) (First District)], Powerhouse [221 Cal.App.4th 867 (2013) (Second District)] and Woods [129 Cal. App.4th 344 (2005) (Second District)]. oi MOTION BY CALIBER PAVING COMPANY TO STAY TRIAL DATE PENDING OUTCOME OF APPEAL OR, IN THE ALTERNATIVE, TO CONTINUE TRIAL DATE PENDING OUTCOME OF APPEAL [Caliber Paving vs. Steve Fodor Construction, et al., OCSC Case No. 30-2018-00977441-CU-BC-CJC] © 0 9 a Wn BA W N = N N N N N N N N m e m e m e m e m p m e e p d ~N O N rn A W D = O 0 S W N = O 28 CALLARI & SUMMERS 34197 Pacific Coast Hwy, Suite 100 Dana Point, CA 92629 A prior Second District case relied upon by Rexford - PM Group [154 Cal. App.4th 55 (2007)] - held that the phrase “stranger to a contract” encompasses a broader class of defendants than merely a “noncontracting party.” However, PM Group was thoroughly reviewed and analyzed in Redfearn, such that the current position of the Second District is that the phrase “stranger to a contract” means “noncontracting party.” The Redfearn Court stated: “Unlike the trial court, however, which must follow controlling precedent from a court of appeal, we are free to disregard some of the language and reasoning of our Division Three colleagues in PM Group, even while agreeing with the outcome of that case.” Redfearn, 20 Cal. App.5th at 1000. Powerhouse, also a Second District case, is in accord with Redfearn and was decided after PM Group. No published California case has followed PM Group in its holding that the phrase “stranger to a contract” means anything other than “noncontracting party,” including the Second District, whose last two decisions on the issue are Redfearn and Powerhouse. The Fourth District Court of Appeal has not yet considered the issue. Caliber Paving contends that the Fourth District will likely follow the Second, First and Sixth Districts and hold, like each of those District Courts of Appeal, that the phrase “stranger to a contract” is synonymous with “noncontracting party.” Because Rexford is undisputedly a “noncontracting party,” if the Fourth District does follow the Second, First and Sixth Districts, then the summary judgment ruling in favor of Rexford will be reversed and remanded for trial. III. THIS ACTION SHOULD BE STAYED PURSUANT TO THE COURT’S INHERENT POWERS UNDER CODE OF CIVIL PROCEDURE § 187 PENDING THE OUTCOME OF CALIBER PAVING’S APPEAL For the reasons stated herein, the trial in this action should be stayed, pending the outcome in the pending appeal, pursuant to the Court’s inherent powers under Code of Civil Procedure § 187, which provides: “When jurisdiction is, by the Constitution or this Code, or by any other statute, conferred on a Court or judicial officer, all the means necessary to carry it into effect are also given; and in the exercise of this jurisdiction, if the course of proceeding be not specifically pointed out by this Code or the statute, any suitable process or mode of -6- MOTION BY CALIBER PAVING COMPANY TO STAY TRIAL DATE PENDING OUTCOME OF APPEAL OR, IN THE ALTERNATIVE, TO CONTINUE TRIAL DATE PENDING OUTCOME OF APPEAL [Caliber Paving vs. Steve Fodor Construction, et al., OCSC Case No. 30-2018-00977441-CU-BC-CJC] © 0 9 a Wn BA W N = N N N N N N N N m e m e m e m e m p m e e p d ~N O N rn A W D = O 0 S W N = O 28 CALLARI & SUMMERS 34197 Pacific Coast Hwy, Suite 100 Dana Point, CA 92629 proceeding may be adopted which may appear most conformable to the spirit of this Code.” See, e.g., Warren v. Schecter, 57 Cal. App.4th 1189, 1199 (1997) (“It is beyond dispute that “Courts have inherent power, as well as power under section 187 of the Code of Civil Procedure, [fn. omitted] to adopt any suitable method of practice, both in ordinary actions and special proceedings, if the procedure is not specified by statute or by rules adopted by the Judicial Council.” [Citation.]’ (Citizens Utilities Co. v. Superior Court (1963) 59 Cal.2d 805, 812-813 ...).” The trial court has both the power, and the duty, where appropriate, to stay all proceedings pending the outcome of a relevant appeal, whether the appeal is in the underlying case, or even when the relevant appeal is in a different related case. Here, Caliber Paving’s pending appeal in this action, if successful, will have a substantial prejudicial effect on the Court, the parties and the witnesses unless the trial is stayed pending the outcome of the appeal. Specifically, granting the stay requested herein will: (1) avoid the risk of two trials which will present substantially the same evidence and testimony, (2) avoid the risk of inconsistent judgments if there are two separate trials, (3) conserve judicial resources by having the related claims against SFC and Rexford tried in the same case, (4) conserve party resources by having the related claims against SFC and Rexford tried in the same case, and (5) protect both party and third-party witnesses from the risk of having to testify twice, in two separate trials, rather than in one consolidated trial. Furthermore, with both parties requesting a jury trial, there is the risk of empaneling two juries to hear substantially the same case. It cannot be disputed that Caliber Paving’s claims for (1) breach of contract against SFC and (2) intentional interference with contract against Rexford are substantially related. Indeed, the interference claim against Rexford requires a finding that SFC breached the contract. Otherwise, there cannot be an interference claim. Therefore, the issue of whether SFC breached the contract must be tried in the trial against Rexford. That is a substantial reason for the need to have both claims tried in the same trial. There is ample precedent for a Court to stay the proceedings pending the outcome of an appeal that can have a substantial effect on the proceedings being stayed. a. MOTION BY CALIBER PAVING COMPANY TO STAY TRIAL DATE PENDING OUTCOME OF APPEAL OR, IN THE ALTERNATIVE, TO CONTINUE TRIAL DATE PENDING OUTCOME OF APPEAL [Caliber Paving vs. Steve Fodor Construction, et al., OCSC Case No. 30-2018-00977441-CU-BC-CJC] © 0 9 a Wn BA W N = N N N N N N N N m e m e m e m e m p m e e p d ~N O N rn A W D = O 0 S W N = O 28 CALLARI & SUMMERS 34197 Pacific Coast Hwy, Suite 100 Dana Point, CA 92629 In Holland v. Dave Altman’s R.V. Center, 222 Cal.App.3d 477 (1990), the trial court granted an “ex parte motion to continue trial during pendency of appeal,” issuing an order granting “motion to ‘continue’ trial, and certain other pending matters, ‘until the pending appeal has been decided.” Id. at 480. The Holland case arose out of a car accident. Plaintiff was injured by a vehicle driven by a Swiss citizen (Peter Inderbitzen), but owned by another defendant (the R.V. Center). Inderbitzen’s motion to quash service was granted and plaintiff appealed that ruling. The case against the R.V. Center was properly stayed pending the appeal by Inderbitzen in order to avoid the risk of two trials. It does not matter that the plaintiff’s appeal might not ultimately be successful. Id. Indeed, the plaintiff in Holland did not prevail on appeal. Instead, the Court of Appeal affirmed “order granting motion to quash service on Inderbitzen.” Id. However, it was the risk of inconsistent judgments and the potential waste of judicial and party resources that justified the stay of all proceedings pending the outcome of the appeal. The same applies here to Caliber Paving’s appeal. Another example is Rosenthal v. Wilner, 197 Cal. App.3d 1327 (1988), where the defendant attorney brought an action against attorneys retained by his liability insurance company for malpractice and other claims in connection with a settlement in the related underlying lawsuit (in which the alleged malpractice occurred). The trial court denied the insurance company motion for summary judgment and alternative motion to stay the case pending the outcome in the appeal in the underlying lawsuit which was settled. The Court of Appeal reversed the trial court, granting a petition for writ of mandate to compel the trial court to stay all proceedings in the case pending the outcome of the appeal in the related underlying malpractice lawsuit. Id. at 1327. Although the facts in Rosenthal are distinguishable, the same policies and principles apply. Another example where a case was stayed pending the outcome of an appeal is Ocean Services Corp. v. Ventura Port Dist., 15 Cal. App.4th 1762 (1993). In Ocean Services Corp., the defendant - Ventura Port District (“VPD”) - brought a separate related lawsuit against plaintiff Ocean Services Corp. (“OSC”) to disqualify OSC’s trial counsel (DeWitt F. Blase). Id. at 1773. In that related action, “VPD obtained a preliminary injunction enjoining Blase from representing OSC.” 1d. Blase appealed from that preliminary injunction order and through a writ of supersedeas obtained a stay of VPD’s action against OSC pending the appeal (and trial). VPD proceeded to trial against Blase, with Blase -8- MOTION BY CALIBER PAVING COMPANY TO STAY TRIAL DATE PENDING OUTCOME OF APPEAL OR, IN THE ALTERNATIVE, TO CONTINUE TRIAL DATE PENDING OUTCOME OF APPEAL [Caliber Paving vs. Steve Fodor Construction, et al., OCSC Case No. 30-2018-00977441-CU-BC-CJC] © 0 9 a Wn BA W N = N N N N N N N N m e m e m e m e m p m e e p d ~N O N rn A W D = O 0 S W N = O 28 CALLARI & SUMMERS 34197 Pacific Coast Hwy, Suite 100 Dana Point, CA 92629 prevailing, and the stay was thereafter lifted in VPD’s action against OSC. Id. at 1774. Again, although the facts in Ocean Services Corp. are distinguishable, the same policies and principles apply. The trial date was stayed pending an appeal in a related case. As noted above, whether the trial court labels it a “stay” or a “continuance” is not “dispositive of the inquiry.” Gaines v. Fidelity Nat'l Title Ins. Co., 62 Cal.4th 1081, 1092 (2016) (citing Holland). “What matters is whether the order is functionally in the nature of a stay ... or functionally in the nature of a continuance. ...” Id. (noting that the functional difference may affect the applicability of the five-year statutory period to bring a case to trial). Here, what Caliber Paving is seeking is an order of a “stay” rather than an order of a “continuance” because the postponement period is indefinite, in contrast to a fixed time period, and the indefinite period is beyond Caliber Paving’s control. Accordingly, Caliber Paving brings this Motion as a Motion for and Order Staying the Proceedings (including the trial date) until the outcome of the pending appeal. It is based upon fairness and equity and to conserve judicial resources and party resources and to protect both party and third-party witnesses from attending two separate trials with substantially overlapping, or identical, testimony. Staying the proceedings pending the outcome of the appeal also avoids the risk of inconsistent judgments. IV. INTHE ALTERNATIVE, THE TRIAL DATE SHOULD BE CONTINUED PURSUANT TO RULE OF COURT 3.1332, PENDING THE OUTCOME OF CALIBER PAVING’S APPEAL In the alternative, under Rule 3.1332 of the California Rules of Court, a party seeking a continuance of the trial date, whether contested or uncontested or whether stipulated to by the parties, may request a continuance by noticed motion or by ex parte application. See Rule 3.1332(b). Here, the request is made as an alternative to the previously stated Motion for an Order Staying the Proceedings, by noticed motion. Caliber Paving respectfully submits that a “stay” is the proper procedure, as demonstrated above. However, this Motion is made in the alternative, in an abundance of caution. I] I] -9. MOTION BY CALIBER PAVING COMPANY TO STAY TRIAL DATE PENDING OUTCOME OF APPEAL OR, IN THE ALTERNATIVE, TO CONTINUE TRIAL DATE PENDING OUTCOME OF APPEAL [Caliber Paving vs. Steve Fodor Construction, et al., OCSC Case No. 30-2018-00977441-CU-BC-CJC] © 0 9 a Wn BA W N = N N N N N N N N m e m e m e m e m p m e e p d ~N O N rn A W D = O 0 S W N = O 28 CALLARI & SUMMERS 34197 Pacific Coast Hwy, Suite 100 Dana Point, CA 92629 Although Rule 3.1332(c) notes that, generally, a trial continuance is “disfavored,” each request must be considered “on its own merits” based upon an affirmative showing of good cause. Good cause exists here, as demonstrated herein. Here, the scheduled trial date is March 30, 2020. All discovery was completed in May 2019. There has been one prior continuance, in May 2019, when Steve Fodor had personal circumstances that delayed his deposition. At the time, trial was set in June 2019. The first date mutually available to the Court and the parties was March 30, 2020 and, based thereon, the case was set for that date. The February 6, 2020 hearing date on this Motion is 52 days before the current trial date, such that there is no need for an ex parte application. “Good cause” exists for the same reasons that a stay is warranted. Namely, like granting the stay, granting a continuance of the trial date pending the outcome of the appeal will: (1) avoid the risk of two trials which will present substantially the same evidence and testimony, (2) avoid the risk of inconsistent judgments if there are two separate trials, (3) conserve judicial resources by having the related claims against SFC and Rexford tried in the same case, (4) conserve party resources by having the related claims against SFC and Rexford tried in the same case, and (5) protect both party and third-party witnesses from the risk of having to testify twice, in two separate trials, rather than in one consolidated trial. Rule 3.1332(c) and (d) set forth various grounds for a continuance, as well as other factors to be considered. In light of Caliber Paving’s pending appeal of the Order Granting Summary Judgment in favor of Rexford, the following grounds and/or factors are applicable: e Rule 3.1332(c)(7): A significant, unanticipated change in the status of the case as a result of which the case is not ready for trial. o Caliber Paving’s appeal of the Rexford summary judgment constitutes a significant, unanticipated change in the status of the case which causes the case not to be ready for trial until the appeal is decided. As demonstrated herein, it makes no sense, from an efficiency and resource standpoint, to run the risk of having two trials with substantially overlapping and significantly identical testimony. The Court, the parties and the witnesses would all be adversely affected by the necessity of two -10 - MOTION BY CALIBER PAVING COMPANY TO STAY TRIAL DATE PENDING OUTCOME OF APPEAL OR, IN THE ALTERNATIVE, TO CONTINUE TRIAL DATE PENDING OUTCOME OF APPEAL [Caliber Paving vs. Steve Fodor Construction, et al., OCSC Case No. 30-2018-00977441-CU-BC-CJC] © 0 9 a Wn BA W N = N N N N N N N N m e m e m e m e m p m e e p d ~N O N rn A W D = O 0 S W N = O 28 CALLARI & SUMMERS 34197 Pacific Coast Hwy, Suite 100 Dana Point, CA 92629 trials. The claims against SFC and Rexford are inextricably related and they should be tried together. e Rule 3.1332(d)(1): The proximity of the trial date. o The current trial date is March 30, 2020. It is 81 days from the date of this Motion, and 52 days from the February 6, 2020 hearing date. e Rule 3.1332(d)(2): Whether there was any previous continuance, extension of time, or delay of trial due to any party. o There has only been one prior continuance, by stipulation, due to the unavailability of SFC’s principal, Steve Fodor, to attend his deposition, due to personal circumstances. The unavailability of Mr. Fodor resulted in a continuance from June 2019 to March 2020. e Rule 3.1332(d)(3): The length of the continuance requested. o The length of the stay/continuance is beyond the control of Caliber Paving. The stay/continuance is required by the pending appeal in order to avoid the risks outlined above in this Motion. e Rule 3.1332(d)(4): The [un]availability of alternative means to address the problem that gave rise to the motion or application for a continuance. o There is no alternative means to address the problem that gave rise to this Motion. e Rule 3.1332(d)(5): The [lack of] prejudice that parties or witnesses will suffer as a result of the continuance. o We are currently 81 days from trial. All discovery was completed by May 2019. There is no prejudice to any party by granting a stay/continuance until the appeal is completed. In fact, there is substantial prejudice if the stay/continuance is not granted. e Rule 3.1332(d)(10): Whether the interests of justice are best served by a continuance .... o As demonstrated herein, the interests of justice and fairness and equity are all best served by granting a stay/continuance of the trial date until the appeal has been completed. S11 - MOTION BY CALIBER PAVING COMPANY TO STAY TRIAL DATE PENDING OUTCOME OF APPEAL OR, IN THE ALTERNATIVE, TO CONTINUE TRIAL DATE PENDING OUTCOME OF APPEAL [Caliber Paving vs. Steve Fodor Construction, et al., OCSC Case No. 30-2018-00977441-CU-BC-CJC] © 0 9 a Wn BA W N = N N N N N N N N m e m e m e m e m p m e e p d ~N O N rn A W D = O 0 S W N = O 28 CALLARI & SUMMERS 34197 Pacific Coast Hwy, Suite 100 Dana Point, CA 92629 e Rule 3.1332(d)(11): Any other fact or circumstance relevant to the fair determination of the motion or application. o The Fourth District’s determination of the meaning of phrase “stranger to a contract” is a significant issue which is one of first impression for the Fourth District. The determination of the appeal, if the Fourth District follows the Second, First and Sixth Districts, would result in the reversal of the summary judgment granted in favor of Rexford, requiring a remand for trial. As demonstrated herein, Caliber Paving’s claims against SFC and Rexford are inextricably intertwined and should be tried together. In the event the appeal is decided against Caliber Paving, the trial can proceed between Caliber Paving and SFC. However, in that event, there will be no risk of having to have two trials or the risk of wasting judicial resources, or the resources of the parties or third-party witnesses. V. CONCLUSION In light of the foregoing, Caliber Paving respectfully requests that the Court grant this Motion to stay this case or, in the alternative, to continue the trial date pending the outcome of the appeal. Caliber Paving contends that a stay is the proper procedure, given that the requested postponement is an indefinite time period and not a fixed number of days, and such postponement is not within the control of Caliber Paving. For the Court’s information, Caliber Paving’s Opening Brief is due January 21, 2019. Rexford’s Opposition Brief is due 30 days after the Opening Brief. Caliber Paving’s Reply Brief is due 20 days after the Opposition Brief. Accordingly, it is anticipated that the appeal will be fully briefed by mid-March 2020. DATED: January 8, 2020 CALLARI & SUMMERS By ] C dow; Andrew C. Callari Attorneys for Plaintiff and Cross-Defendant CALIBER PAVING COMPANY, INC. -12 - MOTION BY CALIBER PAVING COMPANY TO STAY TRIAL DATE PENDING OUTCOME OF APPEAL OR, IN THE ALTERNATIVE, TO CONTINUE TRIAL DATE PENDING OUTCOME OF APPEAL [Caliber Paving vs. Steve Fodor Construction, et al., OCSC Case No. 30-2018-00977441-CU-BC-CJC] © 0 9 a Wn BA W N = N N N N N N N N m e m e m e m e m p m e e p d ~N O N rn A W D = O 0 S W N = O 28 CALLARI & SUMMERS 34197 Pacific Coast Hwy, Suite 100 Dana Point, CA 92629 DECLARATION OF ANDREW CALLARI, ESQ. I, Andrew Callari, declare as follows: I. I am a partner with Callari & Summers, counsel of record for Caliber. The matters attested to herein are based upon my personal knowledge. Ihave personal knowledge of the facts stated herein and could and would so testify if called as a witness. 2. I make this Declaration in support of the foregoing. Motion for an Order to Stay the Trial Date Pending the Outcome of the Appeal, pursuant to the Court’s inherent powers under Code of Civil Procedure § 187 or, in the alternative, an Order to Continue the Trial Date Pending the Outcome of the Appeal, pursuant to California Rule of Court 3.1332. 3. This Motion is being made in good faith and for no improper purpose. 4. Consistent with the substance of the Motion, I respectfully submit that a Stay of the Trial Date, pending the outcome of the appeal is the most efficient and fairest way to deal with the fact that the appeal, if Caliber Paving prevails, puts the Court, the parties and the witnesses at risk of having to present and attend two trials. With both parties requesting a jury trial, there is also a substantial risk of empaneling two juries to hear substantially the same case. 5. As outlined in the Motion, Caliber Paving’s claims for (1) breach of contract against SFC and (2) intentional interference with contract against Rexford are substantially related. In fact, the interference claim against Rexford requires a finding that SFC breached the contract. Otherwise, there cannot be an interference claim. Therefore, the issue of whether SFC breached the contract must be tried in the trial against Rexford. That is a substantial reason for the need to have both claims tried in the same trial. 6. I respectfully submit that the Motion to Stay is the proper procedure. Caliber Paving is seeking is an order of a “stay” this action rather than an order of a “continuance” of the trial date because the postponement period is indefinite, in contrast to a fixed time period, and the indefinite period is beyond Caliber Paving’s control. Nevertheless, in the alternative, the Motion is brought as a Motion for Continuance of the Trial Date. #. I met and conferred with Tom Chun, counsel for SFC (and Rexford) via the exchange of several emails in order to try to avoid the need for this Motion. Mr. Chun and I could not reach an 13 - MOTION BY CALIBER PAVING COMPANY TO STAY TRIAL DATE PENDING OUTCOME OF APPEAL OR, IN THE ALTERNATIVE, TO CONTINUE TRIAL DATE PENDING OUTCOME OF APPEAL [Caliber Paving vs. Steve Fodor Construction, et al., OCSC Case No. 30-2018-00977441-CU-BC-CJC] © 0 9 a Wn BA W N = N N N N N N N N m e m e m e m e m p m e e p d ~N O N rn A W D = O 0 S W N = O 28 CALLARI & SUMMERS 34197 Pacific Coast Hwy, Suite 100 Dana Point, CA 92629 agreement that would allow us to resolve the issues raised herein or allow us to present a joint stipulation to the Court on the issues. My position, on behalf of Caliber Paving, is the position set forth in this Motion. Mr. Chun, on behalf of SFC (and Rexford, presumably), opposes a stay or continuance of the trial date. Mr. Chun’s position will be set forth in SFC’s opposition papers. 8. To the extent this Motion is filed as an alternative Motion to Continue the Trial Date, 1 filed this Motion as soon as reasonably practicable, given some personal circumstances I had at the end of 2019. 0. The Notice of Entry of Judgment on Rexford’s Judgment was served on August 30, 2019. The deadline to file a Notice of Appeal was October 29, 2019. The Notice of Appeal was filed within 30 days, on September 29, 2019. 10. On October 2, 2019, I had knee surgery and I took some time off to recover. 11. On November 17, 2019, my house was completely flooded by an upstairs water leak. All the floors on both levels have to be replaced, along with 95% of the drywall (walls and ceiling) downstairs. My house is uninhabitable and will not likely be ready to move back in until May or June 2020. Remodel construction has not yet begun and the insurance estimate is over $200,000. 12. As summarized in paragraph 7, I contacted Tom Chun via email to inquire whether he would stipulate to stay or continue the trial date until after the appeal was decided. The email I sent was on November 27, 2019. Mr. Chun replied on December 10, 2019 and we exchanged several emails regarding our respective positions on the Motion. We could not agree or otherwise resolve the issues raised in this Motion and I confirmed with Mr. Chun that this Motion would be filed. 13. During the week of December 16, 2019, I had two other medical procedures which required me to be out of the office for several days that week. Following that, during the weeks of December 23 and December 30, 2019, I was out of town over the Christmas/New Year’s holidays. 14. After the first of the year, the earliest available hearing date to be reserved was February 6, 2020, which is the date set for the hearing on this Motion. The hearing date is 52 days before the currently scheduled March 30, 2020 trial date. 15. Mr. Chun and I exchanged additional emails on January 6, 2020, and we considered whether we might stipulate to bring a joint ex parte application to obtain a hearing date before -14- MOTION BY CALIBER PAVING COMPANY TO STAY TRIAL DATE PENDING OUTCOME OF APPEAL OR, IN THE ALTERNATIVE, TO CONTINUE TRIAL DATE PENDING OUTCOME OF APPEAL [Caliber Paving vs. Steve Fodor Construction, et al., OCSC Case No. 30-2018-00977441-CU-BC-CJC] © 0 9 a Wn BA W N = N N N N N N N N m e m e m e m e m p m e e p d ~N O N rn A W D = O 0 S W N = O 28 CALLARI & SUMMERS 34197 Pacific Coast Hwy, Suite 100 Dana Point, CA 92629 February 6, 2020. I noted that we would have to agree to briefing schedule if the hearing date was advanced, also noting that the February 6, 2020 hearing date was still 52 days from the current trial date on March 30, 2020. In response, Mr. Chun stated in an email “Ok. February 6 should work. But no later.” Based upon that exchange, I proceeded to finalize this Motion and I reserved a hearing date for February 6, 2020, as the first available hearing date for a noticed motion. No ex parte application to advance the hearing date is anticipated. 16. The primary Motion to Stay is not subject to the factors set out in Rule of Court 3.1332, which are addressed in Section IV of the Memorandum of Points and Authorities. A Motion to Stay the Proceedings pending the outcome of the appeal is subject to this Court’s inherent powers, pursuant to Code of Civil Procedure § 187 and principles of fairness, equity, justice, preservation of judicial and party resources, etc. I respectfully submit that the standard under section 187 is met. 17. Asan Alternative Motion to Continue the Trial Date pending the outcome of the appeal, there is no prejudice to the parties to allow the pending appeal to conclude before the trial in this action. Discovery was completed in May 2019. Caliber Paving is the plaintiff. It seeks $180,000 in breach of contract damages, plus attorney’s fees from SFC and the same $180,000 in damages against Rexford for interference with the contract. SFC’s Cross-Complaint is for $15,000, based on “move-on” charges that it disputes, despite the fact that they are provided for in the contract. The point is that Caliber Paving’s claim against SFC is twelve (12) times larger than SFC’s claim against Caliber Paving. Accordingly, this is not a situation where SFC is the plaintiff and the appeal against Rexford is delaying SFC’s claim as a plaintiff. SFC’s claim is essentially an offset to Caliber’s claim. As the plaintiff with claims against two parties, Caliber Paving seeks the stay to avoid the risks and costs of having two trials, as outlined in the Motion. I declare under penalty of perjury under the laws of the State of California that the foregoing testimony is true and correct. Executed on January 8, 2020, at Dana Point, California. lin ANDREW CALLARI, ESQ. -15- MOTION BY CALIBER PAVING COMPANY TO STAY TRIAL DATE PENDING OUTCOME OF APPEAL OR, IN THE ALTERNATIVE, TO CONTINUE TRIAL DATE PENDING OUTCOME OF APPEAL [Caliber Paving vs. Steve Fodor Construction, et al., OCSC Case No. 30-2018-00977441-CU-BC-CJC] © 0 9 a Wn BA W N = N N N N N N N N m e m e m e m e m p m e e p d ~N O N rn A W D = O 0 S W N = O 28 CALLARI & SUMMERS 34197 Pacific Coast Hwy, Suite 100 Dana Point, CA 92629 PROOF OF SERVICE 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 34197 Pacific Coast Highway, Suite 100, Dana Point, CA 92629. On January 8, 2020, I electronically served the following documents described as: [X] NOTICE OF MOTION AND MOTION BY CALIBER PAVING COMPANY, INC. FOR ORDER TO STAY THE TRIAL DATE PENDING THE OUTCOME OF APPEAL PURSUANT TO THE COURT’S INHERENT POWER UNDER CCP § 187 OR, IN THE ALTERNATIVE, TO CONTINUE THE TRIAL DATE PENDING THE OUTCOME OF THE APPEAL PURSUANT TO CALIFORNIA RULE OF COURT 3.1332; DECLARATION OF ANDREW CALLARI, ESQ. IN SUPPORT THEREOF on the interested parties in this action by placing [X] a true copy | ] the original thereof addressed as follows: Tom S. Chun LAW OFFICE OF TOM S. CHUN 100 Pacifica, Suite 370 Irvine, CA 92618 Email: tchunbkc@aol.com Counsel for Defendants STEVE FODOR CONSTRUCTION INC. and REXFORD INDUSTRIAL REALTY AND MANAGEMENT, INC. [X] (ELECTRONIC SERVICE BY CONSENT) By virtue of e-filing documents in Orange County Superior Court, which is mandatory, Plaintiff has consented to electronic service under Local Rule 352 of the Orange County Superior Court and under Rule 2.251(b)(1)(B) of the California Rules of Court by electronically filing any document with the Court. [ X] (STATE) I declare under penalty of perjury under the laws of the State of California that the above 1s true and correct. Executed on January 8, 2020, at Dana Point, California. lin Andrew Callari _i- PROOF OF SERVICE [Caliber Paving vs. Steve Fodor Construction, et al., OCSC Case No. 30-2018-00977441-CU-BC-CJC]