Preview
1 J. Edward Kerley (175695)
Dylan L. Schaffer (153612)
2 Rudy Tap (297650)
Kerley Schaffer LLP
3 1939 Harrison Street, #900
Oakland, California 94612
4 Telephone: (510) 379-5801
Facsimile: (510) 228-0350
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Attorneys for Plaintiff
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8 SUPERIOR COURT FOR THE STATE OF CALIFORNIA
9 COUNTY OF SAN MATEO
10 DONNA MARIE MESCHI, an individual, Case No. 16CIV02607
on behalf of themselves and a class of
11 similarly situated persons, PLAINTIFF’S EX PARTE NOTICE AND
APPLICATION FOR TRIAL
12 Plaintiff, CONTINUANCE
13 v. Date: February 10, 2023
14 MERCURY CASUALTY COMPANY, a Assigned to Hon. Danny Y. Chou
corporation, and Does 1 through 10,
15 Date: February 23, 2023
Defendants. Time: 1:30 p.m.
16 Dept: I
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Date Filed: November 29, 2016
18 Trial Date: April 10, 2023
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Ex Parte Application for Trial Continuance
1 TO ALL PARTIES AND THEIR COUNSEL OF RECORD:
2 PLEASE TAKE NOTICE that on February 23, 2023 in Department I in the San Mateo
3 County Superior Court, Plaintiff moves the Court ex parte for a continuance of the trial currently
4 set for April 10, 2023.
5 The basis for the request is the unavailability of Plaintiff’s counsel. Counsel is scheduled
6 to start trial on March 1, 2023 in San Mateo Superior Court in the matter of Mendoza v. Pacific
7 Specialty Insurance Corp., case number CIV536273, before the Hon. Marie S. Weiner. Phase I
8 of the trial is set for pre-trial on March 1, with trial running from March 2 to April 21. There may
9 be a Phase II which is likely not to conclude until the week after April 21. Plaintiff requests that
10 the trial in this matter be continued to October and November of 2023 or to a date thereafter as
11 may be convenient for the Court. In the alternative, Plaintiff requests that the Court vacate the
12 current trial date and set a trial setting conference to find a mutually convenient date.
13 Should the Court prefer a noticed motion, Plaintiff requests that the Court accept this ex
14 parte application as her moving papers and shorten the briefing schedule such that the motion is
15 heard before March 1, 2023.
16 This ex parte application is made pursuant to the California Rules of the Court 3.1332 et.
17 seq. The application is based upon this notice, the accompanying memorandum of points and
18 authorities, the declaration of Edward Kerley, the stipulation of defendant Mercury Casualty
19 Company to a continuance, and any further evidence as may be offered at the hearing on this
20 application. Notice was timely provided to counsel for Defendants Mercury Casualty Company
21 at or about 11:15 a.m. on February 21, 2023, by email.
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23 Date: February 21, 2023 Kerley Schaffer LLP
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Edward Kerley
26 Attorneys for Plaintiff
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Ex Parte Application for Trial Continuance
1 APPLICATION1
2 On January 24, 2023, Plaintiff’s counsel advised counsel for Mercury Casualty Company
3 that the pending Mendoza matter had not resolved at mediation and that a continuance was
4 needed. Mercury Casualty Company and Plaintiff through their counsel have agreed to a
5 stipulation for trial continuance, attached as Exhibit A.
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7 I. Legal standard.
8 A court may grant any party a continuance upon an affirmative showing of good cause. 2
9 In ruling on a motion or application for continuance, the court must consider all facts and
10 circumstances that are relevant to the determination. Circumstances indicating good cause
11 include: the unavailability of trial counsel; the proximity of the trial date; the length of the
12 continuance requested; whether trial counsel is in engaged in another trial; and whether the
13 interests of justice are best served by a continuance.3
14 As further discussed below, good cause exists to continue the April 10, 2023, trial and
15 related pre-trial discovery deadlines because: (1) Plaintiff’s counsel and Mercury are unable to
16 complete discovery in advance of the start of the Mendoza trial; (2) Plaintiff’s counsel is
17 unavailable to start trial on April 10, 2023; (3) there is no prejudice to any party as the date
18 currently set is a little less than 60 days out; (4) Plaintiff will agree to a longer continuance to
19 accommodate Mercury’s counsel’s calendar, and (5) the interests of justice are best served by
20 allowing the parties to obtain essential testimony and material in preparation for trial.
21 II. Notice of this Ex Parte Application was timely.
22 Defendant ws notified of Plaintiff’s ex parte application by email on February 21, 2023 at
23 approximately11:15 by email. Pursuant to CRC 3.1202, Plaintiff identifies the following
24 attorneys or parties: Defendant Mercury is represented by Lora D. Hemphill, Hager & Dowling,
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All facts recited herein are set forth in the accompanying Declaration of Edward Kerley in
27 support of the ex parte application to continue trial (Kerley Decl.).
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C.R.C. 3.1332(c)
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C.R.C. 3.1332(c) and (d).
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Ex Parte Application for Trial Continuance
1 319 E. Carillo Street, Second Floor, Santa Barbara, CA 93101, (805) 966-4700, email:
2 mail@hdlaw.com;
3 Pursuant to CRC 3.1202 (b) Plaintiff discloses that no prior ex parte application for this
4 relief has been refused.
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Date: February 21, 2023 Kerley Schaffer LLP
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Edward Kerley
9 Attorneys for Plaintiff
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Ex Parte Application for Trial Continuance
EXHIBIT A
EXHIBIT A
1 PROOF OF SERVICE
2 Meschi v. Mercury
Case No. 16CIV02607
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STATE OF CALIFORNIA, COUNTY OF SANTA BARBARA
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At the time of service, I was over 18 years of age and not a party to this action. I
5 am employed in the County of Santa Barbara, State of California. My business address is
319 East Carrillo Street, Santa Barbara, CA 93101.
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On February 15, 2023, I served true copies of the following document(s) described
7 as STIPULATION TO CONTINUE TRIAL AND ALL RELATED DISCOVERY
AND PRE-TRIAL DEADLINES; [PROPOSED] ORDER on the interested parties in
8 this action as follows:
9 SEE ATTACHED SERVICE LIST
10 BY E-MAIL OR ELECTRONIC TRANSMISSION: I caused a copy of the
document(s) to be sent from e-mail address mail@hdlaw.com to the persons at the e-mail
11 addresses listed in the Service List. I did not receive, within a reasonable time after the
transmission, any electronic message or other indication that the transmission was
12 unsuccessful.
13 I declare under penalty of perjury under the laws of the State of California that the
foregoing is true and correct.
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Executed on February 15, 2023, at Santa Barbara, California.
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/s/ Blanca Blanco
17 Blanca Blanco
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1 SERVICE LIST
Meschi v. Mercury
2 Case No. 16CIV02607
3 Spencer Y. Kook Associated Counsel for Defendant Mercury
Kimia Karami Casualty Company
4 Hinshaw & Culbertson LLP
350 South Grand Ave., Ste. 3600
5 Los Angeles, CA 90071-3476
Telephone: 213-614-7359
6 Facsimile: 213-614-7399
E-Mail: skook@hinshawlaw.com
7 kkarami@hinshawlaw.com
nvasquez@hinshawlaw.com
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John R. Parker, Jr. Associated Counsel for Plaintiffs
9 Cutter Law, PC
401 Watt Avenue
10 Sacramento, CA 95864
Telephone: 916-290-9400
11 Facsimile: 916-588-9350
E-Mail: jparker@cutterlaw.com
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aellis@cutterlaw.com
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fpao@cutterlaw.com
14 bell@cutterlaw.com
tsimmons@cutterlaw.com
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Edward Kerley Attorneys for Plaintiffs Donna Meschi
16 Dylan Schaffer
Kerley Schaffer LLP
17 1939 Harrison Street, Suite 900
Oakland, CA 94612
18 Telephone: 510-800-6521 x 210
510-800-6521 ext 204
19 510.379.5801 Ext. 210
Facsimile: 510.228.0350
20 E-Mail: service@kslaw.us
edward@kslaw.us
21 dylan@kslaw.us
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1 PROOF OF SERVICE
Meschi v. Mercury Casualty Company
Superior Court of San Mateo County
2 Case No. 16CIV02607
3 I declare that I am over the age of 18 years and not a party to this action. My business
address is 1939 Harrison Street, #900, Oakland, CA 94612. On February 21, 2023, I served the
4 following on the interested parties in this action:
5 PLAINTIFF’S EX PARTE NOTICE AND APPLICATION FOR TRIAL CONTINUANCE
DECLARATION OF EDWARD KERLEY IN SUPPORT OF PLAINTIFF’S EX PARTE
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APPLICATION FOR TRIAL CONTINUANCE
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8 Lora D. Hemphill John R. Parker, Jr.
HAGER & DOWLING CUTTER LAW P.C.
9 319 E. Carrillo Street, Second Floor 401 Watt Avenue
Santa Barbara, CA 93101 Sacramento, California 95864
10 Phone: (805) 966-4700 Telephone: (916) 290-9400
Fax: (805) 966-4120 Fascimile: (916) 588-9350
11 mail@hdlaw.com jparker@cutterlaw.com
Attorneys for Defendants aellis@cutterlaw.com
tsimmons@cutterlaw.com
12 ebell@cutterlaw.com
Co-Counsel for Plaintiffs
13 Spencer Y. Kook
HINSHAW & CULBERTSON LLP
14 350 South Grand Ave., Ste 3600
Los Angeles, CA 90071-3476
15 Tel. (213) 614-7359
Fax (213) 614-7399
16 skook@hinshawlaw.com
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☐ MAIL: By placing such documents(s) in a sealed envelope, with postage prepaid for first class
19 mail, for collection and mailing at Oakland California following ordinary business practice for
deposit with United States Postal Service.
20 ☐ FAX: By causing to be transmitted the documents by use of fax machine telephone number
(510)228-0350 to the parties at the facsimile numbers listed on the service list above. The fax
21 machine used complies with California Rule of Court 2.301. The transmission was reported as
complete and no error was reported by the machine. I caused the transmitting machine to print a
22 record of the transmission, a copy of which is attached to this declaration.
☒ E-MAIL: By electronic mail to the addresses noted above
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☐ FEDEX: By placing for overnight delivery such documents(s) in a facility or box that is
24 regularly maintained by FedEx.
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Proof of Service
1 ☐ HAND DELIVERY: Caused to be hand delivered.
2 I declare under penalty of perjury under the laws of the State of California and the United States that
the foregoing is true, and if called as a witness I could testify competently thereto. This declaration was
3 executed on February 21, 2023, at Oakland, California.
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Troy Parker-Lipkin
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Proof of Service
Preview
1 J. Edward Kerley (175695) Dylan L. Schaffer (153612) 2 Rudy Tap (297650) Kerley Schaffer LLP 3 1939 Harrison Street, #900 Oakland, California 94612 4 Telephone: (510) 379-5801 Facsimile: (510) 228-0350 5 Attorneys for Plaintiff 6 7 8 SUPERIOR COURT FOR THE STATE OF CALIFORNIA 9 COUNTY OF SAN MATEO 10 DONNA MARIE MESCHI, an individual, Case No. 16CIV02607 on behalf of themselves and a class of 11 similarly situated persons, PLAINTIFF’S EX PARTE NOTICE AND APPLICATION FOR TRIAL 12 Plaintiff, CONTINUANCE 13 v. Date: February 10, 2023 14 MERCURY CASUALTY COMPANY, a Assigned to Hon. Danny Y. Chou corporation, and Does 1 through 10, 15 Date: February 23, 2023 Defendants. Time: 1:30 p.m. 16 Dept: I 17 Date Filed: November 29, 2016 18 Trial Date: April 10, 2023 19 20 21 22 23 24 25 26 27 28 1 Ex Parte Application for Trial Continuance 1 TO ALL PARTIES AND THEIR COUNSEL OF RECORD: 2 PLEASE TAKE NOTICE that on February 23, 2023 in Department I in the San Mateo 3 County Superior Court, Plaintiff moves the Court ex parte for a continuance of the trial currently 4 set for April 10, 2023. 5 The basis for the request is the unavailability of Plaintiff’s counsel. Counsel is scheduled 6 to start trial on March 1, 2023 in San Mateo Superior Court in the matter of Mendoza v. Pacific 7 Specialty Insurance Corp., case number CIV536273, before the Hon. Marie S. Weiner. Phase I 8 of the trial is set for pre-trial on March 1, with trial running from March 2 to April 21. There may 9 be a Phase II which is likely not to conclude until the week after April 21. Plaintiff requests that 10 the trial in this matter be continued to October and November of 2023 or to a date thereafter as 11 may be convenient for the Court. In the alternative, Plaintiff requests that the Court vacate the 12 current trial date and set a trial setting conference to find a mutually convenient date. 13 Should the Court prefer a noticed motion, Plaintiff requests that the Court accept this ex 14 parte application as her moving papers and shorten the briefing schedule such that the motion is 15 heard before March 1, 2023. 16 This ex parte application is made pursuant to the California Rules of the Court 3.1332 et. 17 seq. The application is based upon this notice, the accompanying memorandum of points and 18 authorities, the declaration of Edward Kerley, the stipulation of defendant Mercury Casualty 19 Company to a continuance, and any further evidence as may be offered at the hearing on this 20 application. Notice was timely provided to counsel for Defendants Mercury Casualty Company 21 at or about 11:15 a.m. on February 21, 2023, by email. 22 23 Date: February 21, 2023 Kerley Schaffer LLP 24 25 Edward Kerley 26 Attorneys for Plaintiff 27 28 2 Ex Parte Application for Trial Continuance 1 APPLICATION1 2 On January 24, 2023, Plaintiff’s counsel advised counsel for Mercury Casualty Company 3 that the pending Mendoza matter had not resolved at mediation and that a continuance was 4 needed. Mercury Casualty Company and Plaintiff through their counsel have agreed to a 5 stipulation for trial continuance, attached as Exhibit A. 6 7 I. Legal standard. 8 A court may grant any party a continuance upon an affirmative showing of good cause. 2 9 In ruling on a motion or application for continuance, the court must consider all facts and 10 circumstances that are relevant to the determination. Circumstances indicating good cause 11 include: the unavailability of trial counsel; the proximity of the trial date; the length of the 12 continuance requested; whether trial counsel is in engaged in another trial; and whether the 13 interests of justice are best served by a continuance.3 14 As further discussed below, good cause exists to continue the April 10, 2023, trial and 15 related pre-trial discovery deadlines because: (1) Plaintiff’s counsel and Mercury are unable to 16 complete discovery in advance of the start of the Mendoza trial; (2) Plaintiff’s counsel is 17 unavailable to start trial on April 10, 2023; (3) there is no prejudice to any party as the date 18 currently set is a little less than 60 days out; (4) Plaintiff will agree to a longer continuance to 19 accommodate Mercury’s counsel’s calendar, and (5) the interests of justice are best served by 20 allowing the parties to obtain essential testimony and material in preparation for trial. 21 II. Notice of this Ex Parte Application was timely. 22 Defendant ws notified of Plaintiff’s ex parte application by email on February 21, 2023 at 23 approximately11:15 by email. Pursuant to CRC 3.1202, Plaintiff identifies the following 24 attorneys or parties: Defendant Mercury is represented by Lora D. Hemphill, Hager & Dowling, 25 26 1 All facts recited herein are set forth in the accompanying Declaration of Edward Kerley in 27 support of the ex parte application to continue trial (Kerley Decl.). 2 C.R.C. 3.1332(c) 28 3 C.R.C. 3.1332(c) and (d). 3 Ex Parte Application for Trial Continuance 1 319 E. Carillo Street, Second Floor, Santa Barbara, CA 93101, (805) 966-4700, email: 2 mail@hdlaw.com; 3 Pursuant to CRC 3.1202 (b) Plaintiff discloses that no prior ex parte application for this 4 relief has been refused. 5 Date: February 21, 2023 Kerley Schaffer LLP 6 7 8 Edward Kerley 9 Attorneys for Plaintiff 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4 Ex Parte Application for Trial Continuance EXHIBIT A EXHIBIT A 1 PROOF OF SERVICE 2 Meschi v. Mercury Case No. 16CIV02607 3 STATE OF CALIFORNIA, COUNTY OF SANTA BARBARA 4 At the time of service, I was over 18 years of age and not a party to this action. I 5 am employed in the County of Santa Barbara, State of California. My business address is 319 East Carrillo Street, Santa Barbara, CA 93101. 6 On February 15, 2023, I served true copies of the following document(s) described 7 as STIPULATION TO CONTINUE TRIAL AND ALL RELATED DISCOVERY AND PRE-TRIAL DEADLINES; [PROPOSED] ORDER on the interested parties in 8 this action as follows: 9 SEE ATTACHED SERVICE LIST 10 BY E-MAIL OR ELECTRONIC TRANSMISSION: I caused a copy of the document(s) to be sent from e-mail address mail@hdlaw.com to the persons at the e-mail 11 addresses listed in the Service List. I did not receive, within a reasonable time after the transmission, any electronic message or other indication that the transmission was 12 unsuccessful. 13 I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. 14 Executed on February 15, 2023, at Santa Barbara, California. 15 16 /s/ Blanca Blanco 17 Blanca Blanco 18 19 20 21 22 23 24 25 26 27 28 1 SERVICE LIST Meschi v. Mercury 2 Case No. 16CIV02607 3 Spencer Y. Kook Associated Counsel for Defendant Mercury Kimia Karami Casualty Company 4 Hinshaw & Culbertson LLP 350 South Grand Ave., Ste. 3600 5 Los Angeles, CA 90071-3476 Telephone: 213-614-7359 6 Facsimile: 213-614-7399 E-Mail: skook@hinshawlaw.com 7 kkarami@hinshawlaw.com nvasquez@hinshawlaw.com 8 John R. Parker, Jr. Associated Counsel for Plaintiffs 9 Cutter Law, PC 401 Watt Avenue 10 Sacramento, CA 95864 Telephone: 916-290-9400 11 Facsimile: 916-588-9350 E-Mail: jparker@cutterlaw.com 12 aellis@cutterlaw.com 13 fpao@cutterlaw.com 14 bell@cutterlaw.com tsimmons@cutterlaw.com 15 Edward Kerley Attorneys for Plaintiffs Donna Meschi 16 Dylan Schaffer Kerley Schaffer LLP 17 1939 Harrison Street, Suite 900 Oakland, CA 94612 18 Telephone: 510-800-6521 x 210 510-800-6521 ext 204 19 510.379.5801 Ext. 210 Facsimile: 510.228.0350 20 E-Mail: service@kslaw.us edward@kslaw.us 21 dylan@kslaw.us 22 23 24 25 26 27 28 1 PROOF OF SERVICE Meschi v. Mercury Casualty Company Superior Court of San Mateo County 2 Case No. 16CIV02607 3 I declare that I am over the age of 18 years and not a party to this action. My business address is 1939 Harrison Street, #900, Oakland, CA 94612. On February 21, 2023, I served the 4 following on the interested parties in this action: 5 PLAINTIFF’S EX PARTE NOTICE AND APPLICATION FOR TRIAL CONTINUANCE DECLARATION OF EDWARD KERLEY IN SUPPORT OF PLAINTIFF’S EX PARTE 6 APPLICATION FOR TRIAL CONTINUANCE 7 8 Lora D. Hemphill John R. Parker, Jr. HAGER & DOWLING CUTTER LAW P.C. 9 319 E. Carrillo Street, Second Floor 401 Watt Avenue Santa Barbara, CA 93101 Sacramento, California 95864 10 Phone: (805) 966-4700 Telephone: (916) 290-9400 Fax: (805) 966-4120 Fascimile: (916) 588-9350 11 mail@hdlaw.com jparker@cutterlaw.com Attorneys for Defendants aellis@cutterlaw.com tsimmons@cutterlaw.com 12 ebell@cutterlaw.com Co-Counsel for Plaintiffs 13 Spencer Y. Kook HINSHAW & CULBERTSON LLP 14 350 South Grand Ave., Ste 3600 Los Angeles, CA 90071-3476 15 Tel. (213) 614-7359 Fax (213) 614-7399 16 skook@hinshawlaw.com 17 18 ☐ MAIL: By placing such documents(s) in a sealed envelope, with postage prepaid for first class 19 mail, for collection and mailing at Oakland California following ordinary business practice for deposit with United States Postal Service. 20 ☐ FAX: By causing to be transmitted the documents by use of fax machine telephone number (510)228-0350 to the parties at the facsimile numbers listed on the service list above. The fax 21 machine used complies with California Rule of Court 2.301. The transmission was reported as complete and no error was reported by the machine. I caused the transmitting machine to print a 22 record of the transmission, a copy of which is attached to this declaration. ☒ E-MAIL: By electronic mail to the addresses noted above 23 ☐ FEDEX: By placing for overnight delivery such documents(s) in a facility or box that is 24 regularly maintained by FedEx. -1- Proof of Service 1 ☐ HAND DELIVERY: Caused to be hand delivered. 2 I declare under penalty of perjury under the laws of the State of California and the United States that the foregoing is true, and if called as a witness I could testify competently thereto. This declaration was 3 executed on February 21, 2023, at Oakland, California. 4 5 Troy Parker-Lipkin 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 -2- Proof of Service