Reply To Opposition

Reply

Cal. Super. - 4th Dist.February 28, 2019

30-2019 © 0 J O N nm BA W N = N N N N N N NN N N mm e m e m e m e m e m p m p m co J a N nm kA W I N D = D O O N N N R W -= Oo Electronically Filed by Superior Court of California, County of Orange, 04/03/2020 03:04:00 PM. 01054448-CU-MM-CJ C - ROA #66 - DAVID H. YAMASAKI, Clerk of the Court By e Clerk, Deputy Clerk. John A. Brockmeier, Esq. (SBN 244510) BROCKMEIER LAW GROUP 2082 Michelson Dr, Suite 100 Irvine, California 92612 (310)425-3431 Attorneys for Plaintiff, CARLY ETTA DOBSON SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF ORANGE CARLY ETTA DOBSON: Case No.: 30-2019-01054448-CU-MM-CJC Plaintiffs, REPLY TO Untimely OPPOSITION TO VS. MOTION AND MOTION TO LIFT STAY DATE: APRIL 9, 2020 NOMAN MEDICAL CORPORATION dba TIME: 1:30 PM XPRESS URGENT CARE; ZAID NOMAN; DEPT C31 SCOTT NELSON; and DOES 1 through 30, inclusive; Reservation # 73220234 Defendant(s); Defendants. Plaintiff Carly Dobson offers the following reply to Defendant Scott Nelsons untimely filed Opposition to the current Motion. Dated: April 3, 2020 BROCKMEIER LAW GROUP JOHN A. BROCKMEIER Attorneys for Plaintiff 1 MOTION TO LIFT STAY © 0 J O N nm BA W N = N N N N N N NN N N mm e m e m e m e m e m p m p m co J a N nm kA W I N D = D O O N N N R W -= Oo MEMORANDUM OF POINTS AND AUTHORITIES I. THE COURT SHOULD GRANT THE MOTION AND IGNORE THE UNTIMELY FILED OPPOSITION. While it remains unclear what timeline and deadlines will ensue after the mandatory continuances and closures caused by Covid-19, it remains clear that the time to grant relief from the stay is now. At the onset, the Court should disregard the untimely filed Opposition, and deem the motion unopposed. Briefs “submitted after the deadline [set by court’ must be accepted for filing.” (CRC 3.1300(d). But the court has full discretion to decided whether or not they will actualy consider the brief in making their decision. Rancho Mirage Country Club Homeowners Ass'n v. Hazelbaker (2016) 2 Cal. App.5™ 252, 206 Cal. Rptr.3d 233, 241. Judicial preference is to hear matters on their merits even when filings are late, but there must be a good reason. Kapitanski v. Von’s Grocery Co., Inc. (1983) 146 Cal.App.3d 29. Further, the Court must consider whether the motion will significantly impair due process or encourage bad precedent, and must state for the minutes that the court refuses to consider the papers as untimiely. (CRC 3.1300(d)) Finally, while the pleading states that this was some type of clerical error, the accompanying Declaration does not affirm this as required. Accordingly, the Court can and should disregard the untimely filed Opposition; however if the Court does entertain the Opposition, it is clear based on the evidence that the Court should still grant the motion and allow this matter to proceed, discovery to be done, trial dates and any potential mediation, or other matters to be considered. Defendant’s specially appearing attorneys have essentially agreed with Plaintiff’s presentation of the law that states that unless justice weighs towards the Court maintaining the stay, it can and should be lifted. Based on the untimely opposition, the only reason provided to continue the stay is 2 MOTION TO LIFT STAY © 0 J O N nm BA W N = N N N N N N NN N N mm e m e m e m e m e m p m p m co J a N nm kA W I N D = D O O N N N R W -= Oo that the underlying insurance company may or may not now be able to take up defense (as it is past April 1, 2020) and Dr. Nelson won’t be able to retain experts currently. The trial is not yet set, expert designations are not required for months, and based upon the documents provided by specially appearing counsel who has appeared and conferred extensively on this case, the insurer will allegedly pay something for defense, or will not by that time. It has nothing to do with due process; Plaintiff was required to obtain counsel and fund the matter as every party to any action is. The fact that an insurer is not present does not have any effect on due process: Dr. Nelson can still obtain counsel (he has) and should be in the same position as every other litigant in California, not put above others while we wait on his malpractice insurance. II. CONCLUSION Plaintiff respectfully submits and requests the Court lift the stay and allow this matter to be prosecuted. DATED: April 3, 2020 BROCKMEIER LAW GROUP By: SH J6hn A. Brockmeier Attorney for Plaintiff 3 MOTION TO LIFT STAY © 0 J O N nm BA W N = N N N N N N NN N N mm e m e m e m e m e m p m p m co J a N nm kA W I N D = D O O N N N R W -= Oo PROOF OF SERVICE STATE OF CALIFORNIA, 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 2082 Michelson D., Suite 100, Irvine, California 92612. On April 3, 2020, I served the foregoing document described as NOTICE OF MOTION AND MOTION TO LIFT STAY on all interested parties in this action by placing a true copy thereof enclosed in a sealed envelope with postage thereon fully paid, addressed as stated below: Margaret M. Cahill, Esq. SCHMID & VOILES 333 City Boulevard West, Suite 720 Orange, California 92868-2924 Richard A. Wood, Esq. Leibl, Miretsky & Mosely, LLP 5014 Chesebro Road Agoura Hills, CA 91301 / X/ BY MAIL) I am “readily familiar” with the firm’s practice of collection and processing correspondence for mailing. Under the practice it would be deposited with the U.S. Postal Service on that same day with the postage thereon fully prepaid 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 the date of deposit for mailing in affidavit. CCP §1013(a); Fed. Rule Civ. Proc. 5(b). / / (BY CERTIFIED MAIL) I am “readily familiar” with the firm’s practice of collection and processing correspondence for mailing. I caused such envelope with postage thereon fully prepaid, via certified mail -- return receipt requested, to be placed in the United States mail at Irvine, California. CCP §1013(a); Fed. Rule Civ. Proc. 5(b). // (BY PERSONAL SERVICE) I caused such envelope to be delivered by hand to the offices of the addressee whose name and address is listed above. CCP §1011(a); Fed. Rule Civ. Proc. 5(b) /x / (BY FACSIMILE/email) In addition to the above service by mail, hand delivery or express mail/Federal Express, I caused said document(s) to be transmitted by facsimile transmission. CCP §1013(e) [X] (STATE) I declare under penalty of perjury under the laws of the State of California that the above is true and correct. Executed on April 3, 2020 at Irvine, California. J 7 A. Brockmeier 4 MOTION TO LIFT STAY