memorandum of points and authorities in support of ex parte applicatioCal. Super. - 1st Dist.September 23, 2021 1 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF EX PARTE APPLICATION TO CONTINUE TRIAL DATE AND ALL RELATED DATES BASED ON STIPULATION OF PARTIES 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 LO RB E R, G RE E N FI E LD & P O LI TO , L LP 14 2 Sa ns om e St re et , T hi rd F lo or , S an F ra nc isc o, C ali fo rn ia 9 41 04 Te le ph on e (4 15 ) 9 86 -0 68 8 / Fa cs im ile (4 15 ) 9 86 -1 17 2 LORBER, GREENFIELD & POLITO, LLP Wakako Uritani, Esq., (SBN 223619) Shireen Seif, Esq., (SBN 325181) 142 Sansome Street, Third Floor San Francisco, California 94104 TEL: (415) 986-0688 / FAX: (415) 986-1172 wuritani@lorberlaw.com; skennedy@lorberlaw.com Attorneys for Defendants/Cross-Complainants 140 NEW MONTGOMERY LLC, and PEMBROKE REAL ESTATE LLC SUPERIOR COURT OF CALIFORNIA COUNTY OF SAN FRANCISCO MARIA NATIVIDAD VILLEDA, Plaintiff, v. 140 NEW MONTGOMERY LLC; PEMBROKE REAL ESTATE LLC AND DOES 1-25, Defendants. Case No. CGC-20-582808 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF EX PARTE APPLICATION TO CONTINUE TRIAL DATE AND ALL RELATED DATES BASED ON STIPULATION OF PARTIES Date: July 16, 2021 Time: 11:00 a.m. Dept: 206 Judge: Hon. Samuel K. Feng Complaint Filed: February 7, 2020 Trial Date: September 13, 2021 140 NEW MONTGOMERY LLC; and PEMBROKE REAL ESTATE LLC; Cross-Complainant, v. ABM ONSITE SERVICES - WEST, INC.; YERBA BUENA COMMUNITY BENEFIT DISTRICT; and ROES 3-250, Cross-Defendants. ELECTRONICALLY F I L E D Superior Court of California, County of San Francisco 07/15/2021 Clerk of the Court BY: BOWMAN LIU Deputy Clerk 2 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF EX PARTE APPLICATION TO CONTINUE TRIAL DATE AND ALL RELATED DATES BASED ON STIPULATION OF PARTIES 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 LO RB E R, G RE E N FI E LD & P O LI TO , L LP 14 2 Sa ns om e St re et , T hi rd F lo or , S an F ra nc isc o, C ali fo rn ia 9 41 04 Te le ph on e (4 15 ) 9 86 -0 68 8 / Fa cs im ile (4 15 ) 9 86 -1 17 2 I. INTRODUCTION This unopposed Ex Parte Application is made on the basis that good cause exists for a continuance of the trial date in this matter as described in the California Rules of Court, and because the Parties have agreed and stipulated to such continuance as required by the San Francisco Superior Court’s Local Rules. Due to recent filing of a Roe Amendment to the Cross-Complaint of Defendants/Cross-Complainants 140 NEW MONTGOMERY LLC; AND PEMBROKE REAL ESTATE LLC to name as Cross-Defendants ABM Onsite Services-West, Inc. and Yerba Buena Community Benefit District and delays in entry of that amendment by the Court clerk due to a backlog of filings from Covid-19, and due to Cross-Defendants’ need for a reasonable opportunity to conduct discovery, this matter will not be ready for trial by the current trail date of September 13, 2021. The Parties therefore respectfully request that the Court grant this Ex Parte Application for Continuance of Trial to the date stipulated by the Parties in the Stipulation attached hereto, or to such other date as the Court has available. The Parties further request that all discovery, motion, and statutory cut-off deadlines will be based on this continued trial date. Notice of this Ex Parte Application was provided to counsel for Plaintiff on July 14, 2021, as required by the California Rules of Court, rule 3.1204. See Exhibit A, attached to Declaration of Wakako Uritani, filed herewith. II. STATEMENT OF FACTS On August 23, 2019, Plaintiff Maria Natividad Villeda (“Plaintiff”) alleges she was walking in 140 New Montgomery Street in San Francisco, a building managed by Pembroke Real Estate, LLC, when she slipped on some water and fell, injuring her head and neck. See Declaration of Wakako Uritani in Support of Ex Parte Application for Continuance of Trial and Related Dates Based on Stipulation of the Parties (“Decl. WXU”), ¶ 4. Due to power washing of the sidewalk outside the entrance, water entered the building under the front doors. Decl. WXU, ¶ 5. Plaintiff alleges that this water soaked the mat at the interior entrance, which in turn caused her to slip when she stepped from the wet mat onto the marble floor. Decl. WXU, ¶ 6. On July 27, 2020, Plaintiff filed the First Amended Complaint, naming Defendants 140 New Montgomery, LLC; Pembroke Real Estate, LLC; and Does 1 through 25. Decl. WXU, ¶ 7. Defendants 3 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF EX PARTE APPLICATION TO CONTINUE TRIAL DATE AND ALL RELATED DATES BASED ON STIPULATION OF PARTIES 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 LO RB E R, G RE E N FI E LD & P O LI TO , L LP 14 2 Sa ns om e St re et , T hi rd F lo or , S an F ra nc isc o, C ali fo rn ia 9 41 04 Te le ph on e (4 15 ) 9 86 -0 68 8 / Fa cs im ile (4 15 ) 9 86 -1 17 2 filed an Answer to the First Amended Complaint on August 20, 2020. Decl. WXU, ¶ 7. On the same day, Defendants filed a Cross-Complaint for Equitable Indemnity, Contribution, and Apportionment against Roes 1 through 250. Decl. WXU, ¶ 7. During the course of discovery, Defendants learned that Defendant Pembroke Real Estate, LLC has a contract with ABM Onsite Services - West, Inc. (“ABM”) to provide janitorial services at the 140 New Montgomery building, and therefore ABM may be liable for Plaintiff’s injuries. Decl. WXU, ¶ 8. Defendants also learned that the Yerba Buena Community Benefit District (“Yerba Buena”) power washes the sidewalks outside of the 140 New Montgomery building, and therefore Yerba Buena may be liable for Plaintiff’s injuries. Decl. WXU, ¶ 9. On June 15, 2021, Defendants filed an Amendment to Cross-Complaint Substituting True Roe Name for Fictitious Name (“Roe Amendment”) to name ABM and Yerba Buena as Cross-Defendants. Decl. WXU, ¶ 10. Nearly a month later, the Court docket showed that the clerk had not yet processed the Roe Amendment. Decl. WXU, ¶ 11. The court clerk informed counsel for Defendants that there was a severe backlog of filings and therefore processing of the Roe Amendment was delayed. Decl. WXU, ¶ 11. Because counsel has not yet received conformed copies of the Roe Amendment from the court clerk, ABM and Yerba Buena have not been served and have not appeared in this matter, and discovery pertaining to these Cross-Defendants is on hold until they are able to appear. Decl. WXU, ¶ 12. The Parties met and conferred in this matter and have agreed and stipulated to a continuance of trial due in order to allow time for Cross-Defendants to appear in this matter and conduct discovery. Decl. WXU, ¶ 13. Defendants and Plaintiff must also conduct discovery as it pertains to Cross- Defendants. Decl. WXU, ¶ 13. The signed stipulation of the Parties to the continuance of trial and all related dates is filed herewith. Trial in this matter is currently set for September 13, 2021, and there have been no other continuances granted. Decl. WXU, ¶ 16. III. ANALYSIS Though California Rules of Court say that trial dates are firm, a party may request a continuance for good cause shown. California Rule of Court, Rule 3.1332. Good cause includes the addition of new parties if the new parties have not had a reasonable opportunity to conduct discovery and prepare for 4 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF EX PARTE APPLICATION TO CONTINUE TRIAL DATE AND ALL RELATED DATES BASED ON STIPULATION OF PARTIES 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 LO RB E R, G RE E N FI E LD & P O LI TO , L LP 14 2 Sa ns om e St re et , T hi rd F lo or , S an F ra nc isc o, C ali fo rn ia 9 41 04 Te le ph on e (4 15 ) 9 86 -0 68 8 / Fa cs im ile (4 15 ) 9 86 -1 17 2 trial, or if the other parties have not had a reasonable opportunity to conduct discovery and prepare for trial as it pertains to the newly added parties. CRC, Rule 3.1332(c)(5). California courts must consider all the relevant facts and circumstances, which may include the time left until the trial date, whether the parties have stipulated to the continuance, and any other relevant fact or circumstance. CRC, Rule 3.1332(d). The San Francisco local court rules allow the Presiding Judge, on stipulation of the parties, to continue a trial to a date convenient to the Court by an ex parte application showing good cause. Super. Ct. S.F. County, Local Rules, rule 6.0(B). With these rules in mind, the Court should grant this ex parte application because good cause exists, and the parties have stipulated to a continuance. 1. Good Cause Exists for a Continuance. Good cause exists for a continuance of the trial and all related dates because Plaintiff, Defendants, and the newly added Cross-Defendants will not have a reasonable opportunity to conduct discovery with regards to the newly added Cross-Defendants before the current September 13, 2021, trial date. Though filed a month ago, Defendants’ Roe Amendment has not been processed by the clerk due to a severe backlog and therefore Defendants have not been able to serve their Cross-Complaint on Cross-Defendants ABM and Yerba Buena. It is not clear how much longer it will be before the clerk is able to process the Roe Amendment/, however, even if the Roe Amendment is processed soon, the Cross-Defendants will still have 30 days to file a responsive pleading. Because trial is only two months away, there will not be enough time for all of the parties to engage in discovery pertaining to the newly added Cross-Defendants. Therefore, there is good cause for the court to grant this ex parte application for a continuance of trial and all related dates, pursuant to the California Rules of Court, Rule 3.1332(c)(5) 2. The Parties Have Stipulated to a Continuance. Plaintiff and Defendants have met and conferred and agree that a continuance of the trial date in this matter is necessary, not only so that they and Cross-Defendants ay conduct discovery, but also so that they may engage in mediation prior to the trial date. Plaintiff and Defendants were engaged in discussions to determine a date for mediation, but they agreed to postpone these discussions until the newly added Cross-Defendants had appeared and all of the parties had a reasonable opportunity to 5 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF EX PARTE APPLICATION TO CONTINUE TRIAL DATE AND ALL RELATED DATES BASED ON STIPULATION OF PARTIES 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 LO RB E R, G RE E N FI E LD & P O LI TO , L LP 14 2 Sa ns om e St re et , T hi rd F lo or , S an F ra nc isc o, C ali fo rn ia 94 10 4 Te le ph on e (4 15 )9 86 -0 68 8 / Fa cs im ile (4 15 )9 86 -1 17 2 conduct discovery as it pertains to these Cross-Defendants. Because the trial date is September 13, 2021, a mere two months from the date of filing of this Ex Parte Application, there will not be enough time to complete discovery and attempt to resolve the matter short of trial. Therefore, Plaintiff and Defendants have stipulated to a continuance of the trial date and all related dates. IV. CONCLUSION In sum, good cause has been shown for a continuance of the trial date in this matter because there are newly added Cross-Defendants who have not yet appeared, and all of the parties require a reasonable opportunity to conduct discovery pertaining to these newly added parties. The Parties therefore respectfully request that the Court grant this Ex Parte Application for Continuance of Trial to the date stipulated by the Parties, or to a date convenient to the Court, and that all discovery, motion, and statutory cut-off deadlines will be based on this continued trial date. Dated: July 15, 2021 LORBER, GREENFIELD & POLITO, LLP By: Wakako Uritani Attorneys for Defendant/Cross-Complainants 140 NEW MONTGOMERY LLC, and PEMBROKE REAL ESTATE LLC PROOF OF SERVICE 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 LO RB E R, G RE E N FI E LD & P O LI TO , L LP 14 2 Sa ns om e St re et , T hi rd F lo or , S an F ra nc isc o, C ali fo rn ia 9 41 04 Te le ph on e (4 15 ) 9 86 -0 68 8 / Fa cs im ile (4 15 ) 9 86 -1 17 2 Re: Villeda v. 140 New Montgomery LLC, et al. Court: Superior Court of California County of San Francisco Case No: CGC-20-582808 PROOF OF SERVICE (Code Civ. Proc., §§ 1012, 1013a, 2015.5; Fed. Rules Civ. Proc., rule 5(b).) I am employed in the County of San Francisco, State of California. I am over the age of 18 and not a party to the within action. My business address is 142 Sansome Street, Third Floor, San Francisco, CA 94104. On July 15, 2021, I served the foregoing document described as: MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF EX PARTE APPLICATION TO CONTINUE TRIAL DATE AND ALL RELATED DATES BASED ON STIPULATION OF PARTIES on the interested parties in this action addressed as follows: George D. Oliver LAW OFFICES OF GEORGE D. OLIVER 42 Hickory Road Fairfax, CA 94930 Tel: 415-485-4430 Fax: 415-485-1147 go@goliverlaw.com Attorneys for Plaintiff MARIA NATIVIDAD VILLEDA (BY ELECTRONIC-MAIL) by attaching a copy of the document(s) in PDF format to the email addresses confirmed by the parties listed below, pursuant to California Code of Civil Procedure section 1010.6, subdivision (e)(1), allowing for electronic service of a notice or document that may be served by File & ServeXpress, mail, express mail, overnight delivery, or facsimile transmission. I declare under penalty of perjury under the laws of the State of California that the above is true and correct. Executed on July 15, 2021, in San Francisco, California. Heidi Dittmer Heidi Dittmer. COVID-19 EMERGENCY EMAIL CONTACT - emergencycontacts@lorberlaw.com LGP SF is open for business and my team is working remote through the end of the business day on May 1, 2020 as ordered by the City and County of San Francisco to help protect our employees, clients and our communities from the novel coronavirus (COVID-19). During this period, our legal teams and staff will be answering calls, voicemail, and email, and will conduct all business by telephone, video conference, email or other electronic means. All counsel should serve all pleadings and responsive documents on our office via email to the attorney of record on your file with a copy to SF_Secretaries@lorberlaw.com. We appreciate your patience until we are able to resume full and normal operations of all of our offices.
