memorandum of p a in support of ex parte application for stipulated t

Cal. Super. - 1st Dist.October 13, 2021

1 2 3 4 5 Randolph S. Hicks, Esq. - SBN 83627 Mahmoud A. Fadli, Esq. - SBN 280607 CODDINGTON, HICKS & DANFORTH A Professional Corporation, Lawyers 555 Twin Dolphin Drive, Suite 300 Redwood City, CA 94065 Tel.: 650.592.5400 Fax: 650.592.5027 ATTORNEYS FOR Defendants 6 Wheels Up Partners, LLC and GAMA Aviation, LLC 7 8 9 10 IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF SAN FRANCISCO SHARON BARR-DAY and BRANDON Case No. CGC-20-584022 11 DAY, 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiffs, , vs. WHEELS UPP ARTNERS, LLC a New York Limited Liability Company; GAMA AVIATION LLC, a Connecticut Limited Liability Company doing business as Gama Aviation Signature, Currently Unknown Pilot in Command sued herein as DOE 1; Currently Unknown Co-Pilot, sued herein as DOE 2; and DOES 3-50, inclusive, Defendants. MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF EX PARTEAPPLICATIO FOR STIPULATED TRIAL CONTINUANCE Date: Time: Department: Trial Date: New Trial Date: March 4, 2021 11:00 a.m. Presiding Judge June 28, 2021 May 2, 2022 Defendants Wheels Up Partners, LLC and Gama Aviation LLC ("Defendants"), through their counsel, hereby apply ex parte for an order to continue the June 28, 2021 trial date to May 2, 2022, or as soon thereafter as is convenient for the Court, pursuant to the stipulation of all parties. Good cause exists for this application for an order to continue the trial under California Rules of Court, Rule 3.1332. The matter was initially filed on April 2, 2020, in the midst of the San Francisco County Shelter in Place order. The matter became at issue on or about May 29, 2020. To date, the parties are still engaged in discovery, and the matter was set for trial on June 28, 2021. MP A ISO EPA Stipulated Trial Continuance Case No: CGC-20-584022 1 77875 ELECTRONICALLY F I L E D Superior Court of California, County of San Francisco 03/03/2021 Clerk of the Court BY: SANDRA SCHIRO Deputy Clerk 1 This matter is complicated. While the instant action involves an aircraft turbulence 2 incident and associated physical and economic injuries to plaintiffs, plaintiff Sharon Barr-Day's 3 injuries are also related to a 2014 motor vehicle accident. (Fadli Deel., il 2) That matter, Barr- 4 Day v. Joseph V irchis (Contra Costa County Superior Court Case No. C16-00332), is currently 5 being litigated. (Fadli Deel., il 2) From the onset of the case to the present date, the parties have 6 met and conferred on numerous matters, including Defendants' answer to plaintiffs' complaint 7 and plaintiffs' discovery responses. (Fadli Deel., il 3) Considering the nature of plaintiff Sharon 8 Barr-Day's injuries, defendants have subpoenaed well over thirty medical providers and 9 received thousands of pages of medical records for review; and these documents continue to 10 arrive, often delayed due to the challenges of the instance circumstances related to COVID-19. 11 (Fadli Deel., il 4) The breadth of discovery, and the associated difficulties related to COVID-19, 12 Shelter in Place orders, and limited resources have further delayed further discovery and the 13 taking of plaintiffs' depositions. (Fadli Deel., il 5) As a result, the parties, together, request that 14 this Court continue the trial set for June 28, 2021 to May 2, 2022, or any date as soon thereafter 15 as is convenient for the Court. (Fadli Deel., il 6) 16 No party will suffer prejudice by the continuance. In fact, a trial continuance is in the 17 best interest of the parties' respective desires to properly investigate the case, complete 18 discovery, and determine whether alternative forms of dispute resolution will be effective in 19 resolving it. (Fadli Deel., il 7) The parties have met and conferred on proposed new trial dates, 20 and a continuance of the trial is respectfully requested to May 2, 2022 to account for discovery, 21 expert retentions, the challenges related to the COVID-19 pandemic, and possible mediation. 22 (Fadli Deel., il 7) The parties believe in good faith that a May 2, 2022 trial date will take into 23 consideration all of these aforementioned factors. 24 This stipulated ex parte application is presented pursuant to Rule 3.1332(b) of the 25 California Rules of Court, which provides, in pertinent part, that "[a] party seeking a 26 continuance of the date set for trial, whether contested or uncontested or stipulated to by the 27 parties, must make the request for a continuance by a noticed motion or an ex parte application 28 ... with supporting declarations." MP A ISO EPA Stipulated Trial Continuance Case No: CGC-20-584022 2 77875 1 Plaintiffs have stipulated to this instance continuance and have also stipulated to counsel 2 for Defendants' appearing ex parte on behalf of all parties to present this application. (Fadli 3 Deel., ml 8, 9) Plaintiffs' counsel is represented by the following attorneys of record: 4 5 6 7 8 9 10 11 12 13 14 John F. Van De Poel, Esq. William E. Manning, Esq. VAN DE POEL, LEVY, THOMAS, ARNEAL LLP 1600 South Main Plaza, Suite 325 Walnut Creek, California 94596 T: (925) 934-6102 F: (925) 934-6060 E: wmanning@vanlevylaw.com The application for a stipulated trial continuance is based on this application, the Declaration of Mahmoud A. Fadli filed concurrently herewith, the Stipulation to Continue the Trial, the papers and records on file with the Court, and on such oral and documentary evidence as may be presented at the hearing on the application. 15 Dated: March 2, 2021 16 17 18 19 20 21 22 23 24 25 26 27 28 MP A ISO EPA Stipulated Trial Continuance Case No: CGC-20-584022 3 77875 1 2 3 PROOF OF SERVICE California Code of Civil Procedure sections 1011, 1013, 1013a, 2015.5 California Rule of Court rule 2.251 Federal Rule of Civil Procedure Rule 5(6) 4 I, the undersigned, declare that I am employed in the County of San Mateo, State of 5 California. I am over the age of eighteen (18) years and not a party to the within action. My 6 business address is 555 Twin Dolphin Drive, Suite 300, Redwood City, California 94065. My 7 electronic mail address is joseguera@chdlawyers.com 8 I am readily familiar with my employer's business practice for collection and processing 9 of correspondence and documents for mailing with the United States Postal Service, mailing via 1 O overnight delivery, transmission by facsimile machine, and delivery by hand. 11 On March 3, 2021, I served a copy of each of the documents listed below by placing 12 them for processing as indicated herein. 13 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF EX 14 PARTEAPPLICATION FOR 15 16 17 18 19 20 21 22 23 24 25 26 27 STIPULATED TRIAL CONTINUANCE United States Mail: The correspondence or documents were placed in sealed, labeled envelopes with postage thereon fully prepaid on the above date placed for collection and mailing at my place of business to be deposited with the U.S. Postal Service at Redwood City, California on this same date in the ordinary course of business. Overnight Delivery: The correspondence or documents were placed in sealed, labeled packaging for overnight de1ivery, with Federal Express, with all charges to be paid by my employer on the above date for collection at my place of business to be deposited in a facility regularly maintained by the overnight delivery carrier, or delivered to a courier or driver authorized by the overnight delivery carrier to receive such packages, on this date in the ordinary course of business. Hand Delivery: The correspondence or documents were placed in sealed, labeled envelopes and served by personal delivery to the party or attorney indicated herein, or if upon attorney, by leaving the labeled envefopes with a receptionist or other person having charge of the attorney's office. Facsimile Transmission: The correspondence or documents were placed for transmission from (650) 592-5027 at Redwood City, California, and were transmitted to a facsimile machine maintained by the party or attorney to be served at the facsimile machine telephone number provided by said party or attorney, on this same date in the ordinary course of business. The transmission was reported as complete and without error, and a record of the transmission was properly issued by the transmitting facsimile machine. 28 =xx~_ Electronic Transmission: The correspondence or documents were transmitted electronically to the electronic address set forth below. 1 2 3 4 5 6 7 8 9 State. The recil?ient has filed and served notice that he or she accepts electronic service; the recipient has electronically filed a document with the court; and/ or the Court has mandated that the parties serve documents through its Court approved vendor. The printed form of this document bearing the original signature is on file and available for inspection at the request of the court or any party to the action or proceeding in which it is filed, in the manner provided in California Rule of Court Rufe 2.257(a). Federal. The recipient of this electronic service has consented to this method of service in writing, a copy of which is on file and available for insl?ection in my employer's office. I have received no indication the electronic transmission did not reach the recipient. PERSONS OR PARTIES SERVED: William E. Manning, Esq. 10 Jennifer Z. Krenzin, Esq. Van De Poel, Levy, Thomas, Arneal LLP 11 1600 S. Main Plaza, Suite 325 Walnut Creek, CA 94596 12 13 14 15 16 17 18 19 20 21 Telephone: Facsimile: E-mail: (925) 934-6102 (925) 934-6060 law.com E-mail: ·krenz· v.com E-mail: kmetle · .com I certify (or declare) under penalty of perjury under the laws of the State of California that the foregoing is true and correct and that this declaration was executed on March 3, 2021. ~ Court: Superior Court of Califomia,San Francisco Counry 22 Action No: CGC-20-584022 23 24 25 26 27 28 Case arne: Ba"-Dt.!J v. Wheels Up, LLC