memorandum of points and authorities in support of defendant michael b

Cal. Super. - 1st Dist.January 13, 2020

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT MICHAEL BANDERAS’ EX PARTE APPLICATION TO CONTINUE TRIAL DATE - 1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ALI R. YOUSEFI (SBN 282260) 75 Broadway Street, Suite 202 San Francisco, CA 94111 Telephone: (858) 414-2200 Facsimile: (858) 509-9888 E-Mail: AYousefiLaw@gmail.com HAITHAM G. AMIN (SBN 286979) 75 Broadway Street, Suite 202 San Francisco, CA 94111 Telephone: (415) 735-4174 Facsimile: (650) 636-9664 E-Mail: HGAmin@ANLegalfirm.com Attorneys for Defendant, Michael Banderas SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF SAN FRANCISCO -UNLIMITED JURISDICTION- ROOPA GHIA, Plaintiff v. RAPID BAY DELIVERY SERVICE; OTTO LANG; CLIFFORD SIMMONS; et al. Defendants ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No.: CGC-18-569265 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT MICHAEL BANDERAS’ EX PARTE APPLICATION TO CONTINUE TRIAL DATE Original Complaint Filed: August 29th, 2018 Trial Date: August 5th, 2019 APPLICATION Defendant Michael Banderas (“Defendant”), through his attorneys of record, requests that the Court enter an Order continuing the trial date in this action. ELECTRONICALLY F I L E D Superior Court of California, County of San Francisco 06/27/2019 Clerk of the Court BY: CAROL BALISTRERI Deputy Clerk MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT MICHAEL BANDERAS’ EX PARTE APPLICATION TO CONTINUE TRIAL DATE - 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 This Application is made pursuant to California Rule of Court 3.1332, the accompanying memorandum of points and authorities, the attached Declaration of Haitham Amin, and the files and records in this action. RELIEF REQUESTED Defendant respectfully requests that the Court enter an Order continuing the August 5th, 2019 trial date to December 9th, 2019 or as soon thereafter as the Court calendar permits, and re- setting all pre-trial dates and deadlines, including but not limited to those pertaining to discovery and dispositive motions, in accordance with the new trial date. All parties stipulate to this continuance. A true and correct copy of the Stipulation executed by counsel on behalf of all parties is attached as Exhibit A to the Declaration of Haitham Amin, filed herewith. Cal. Rule of Court 3.1332(b) expressly permits a request for a trial continuance be presented to the Court by ex parte application, as does San Francisco Local Rule of Court 6.0(b) where, as here, there is a stipulation to continuance by the parties. MEMORANDUM OF POINTS AND AUTHORITIES A. STATEMENT OF FACTS The original complaint in this action was filed on August 29th, 2018. (Declaration of Haitham Amin in support of Defendant Michael Banderas’ Ex Parte Application to Continue Trial (“Amin Decl. ISO”) ¶ 3.) The operative first amended complaint was filed on March 28th, 2019. Id. ¶ 4. Trial in this matter is currently set for August 5th, 2019. However, Defendant will need additional time to complete discovery. Id. ¶ 5. Furthermore, based on the information obtained through discovery conducted to date, the parties expect that additional time to conduct further discovery would benefit all parties in preparing for trial. Allowing additional time for the parties to prepare for trial will also facilitate MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT MICHAEL BANDERAS’ EX PARTE APPLICATION TO CONTINUE TRIAL DATE - 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 the parties’ participation in alternative dispute resolution procedures prior to trial, including mediation. Id. ¶ 6. Accordingly, the parties have stipulated to a continuance. A true and correct copy of the Stipulation is attached as Exhibit A to the Amin Decl. ISO. B. LEGAL ARGUMENT 1. Good cause exists to continue the trial date The Court may grant a request for trial continuance on an affirmative showing of good cause requiring the continuance. Cal. Rule of Court 3.1332(c); San Francisco Superior Court Local Rule 6.0(B). The Rule expressly provides that “a circumstance that may indicate good cause includes the addition of a new party if: (a) The new party has not had a reasonable opportunity to conduct discovery and prepare for trial; or (b) The other parties have not had a reasonable opportunity to conduct discovery and prepare for trial in regard to the new party's involvement in the case” Cal. Rule of Court 3.1332(c)(5). In ruling on an application for continuance, the Court must consider all the facts and circumstances relevant to the determination, including (1) whether there has been a previous continuance, (2) the length of the continuance requested, (3) the availability of alternative means to address the problem giving rise to the request for continuance, (4) prejudice to the parties resulting from the continuance, (5) whether the parties have stipulated to the continuance, and (6) whether the interests of justice are served by a continuance. Cal. Rule of Court 3.1332(d). The court’s decision on a request for continuance of trial “must be made in an atmosphere of substantial justice.” Oliveros v. County of Los Angeles (2004) 120 Cal.App.4th 1389, 1395. MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT MICHAEL BANDERAS’ EX PARTE APPLICATION TO CONTINUE TRIAL DATE - 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 “The strong public policy favoring disposition on the merits outweighs the competing policy favoring judicial efficiency. [citations]” Id. Here, good cause exists to continue the trial date as requested herein, for several reasons. First, Defendant was added as a new party in Plaintiff’s amended complaint of March 28th, 2019. Defendant has not had a reasonable opportunity to conduct discovery and prepare for trial, and all of the parties hereto agree that they, too, have not had a reasonable opportunity to conduct discovery and prepare for trial in regard to the new party's involvement in the case. Accordingly, all the parties hereto have stipulated to continuance of the trial. Second, other factors to be considered weigh in favor of granting the instant request to continue the trial date. The trial date is not imminent, but rather still over a month away. There have been no previous continuances, extensions of time, or delays to trial. Given that all parties have stipulated to the continuance, no party contends that prejudice will result from the requested continuance. Third, the interests of justice are best served by continuing the trial date as requested. If the trial date is continued, Defendant, as well as the other parties, will have additional time to conduct meaningful discovery in light of Defendant’s recent addition as a party to this case. Finally, the requested trial continuance will allow the parties to engage in settlement negotiations and alternative dispute resolution efforts, including mediation, that may result in a global resolution, or partial resolution as to certain parties and/or claims at issue, rather than immediately focusing on all-encompassing trial preparation efforts. Accordingly, good cause exists to continue the trial date. /// /// MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT MICHAEL BANDERAS’ EX PARTE APPLICATION TO CONTINUE TRIAL DATE - 5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CONCLUSION For the foregoing reasons, Defendant Michael Banderas respectfully requests that the Court enter an Order continuing the trial date to December 9th, 2019 or as soon thereafter as the Court calendar permits, and re-setting all pre-trial dates and deadlines, including but not limited to those pertaining to discovery and dispositive motions, in accordance with the new trial date, as stipulated to by the parties hereto. COMPLIANCE WITH CAL. RULES OF COURT 3.1203 AND 3.1204 Defendant Michael Banderas has complied with all of the notice requirements of Cal. Rule of Court 3.1203, and Defendant’s counsel has submitted herewith Declaration of Haitham Amin Regarding Notice of Defendant Michael Banderas’ Ex Parte Application to Continue Trial Date pursuant to Cal. Rule of Court 3.1204. DATED: 6/25/19 Ali Yousefi, Esq. Attorney for Defendant Michael Banderas Haitham Amin, Esq. Attorney for Defendant Michael Banderas