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KASEY DIBA, ESQ. (SBN 171081)
1 MATTHEW SICHI, ESQ. (SBN 306165)
FINNEGAN & DIBA, A LAW CORPORATION
2 3660 Wilshire Boulevard, Suite 800
Los Angeles, California 90010
3 Telephone: (213) 480-0292
Facsimile: (213) 480-0805
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Attorneys for Respondents FJM Private Mortgage, LLC, FJM Capital, Inc. dba First Bridge Lending,
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FJM Management, LLC dba First Bridge Lending
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SUPERIOR COURT OF THE STATE OF CALIFORNIA
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FOR THE COUNTY OF SONOMA
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In the Matter of the Arbitration between Case No.: SCV-267331
10 Nicholas and Sharon Honchariw,
RESPONDENTS’ EX PARTE
11 Petitioners APPLICATION TO ADVANCE MOTION
TO VACATE JUDGMENT AND FOR
12 vs. ENTRY OF NEW JUDGMENT AND
STATEMENT OF DECISION THEREON
13 FJM Private Mortgage Fund, LLC, FJM Capital, OR, IN THE ALTERNATIVE, MOTION
Inc., dba First Bridge Lending, FJM FOR NEW TRIAL; DECLARATION OF
14 Management, LLC dba First Bridge Lending; MATTHEW SICHI IN SUPPORT
and DOES 1 through 5, inclusive, THEREOF
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Respondents. (Filed concurrently with [Proposed] Order]
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DATE: MARCH 16, 2023
17 TIME: 10:30 a.m
DEPT: 18
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19 TO ALL PARTIES AND THEIR COUNSEL OF RECORD:
20 PLEASE TAKE NOTICE that on March 16, 2023, at 10:30 A.M., or as soon thereafter as the
21 matter may be heard in Department “18” of the above-entitled Court, located at 600 Administration
22 Drive, Santa Rosa, CA 95403, Respondents FJM Private Mortgage, LLC, FJM Capital, Inc. dba First
23 Bridge Lending, and FJM Management, LLC dba First Bridge Lending, will seek on an ex parte basis
24 an order advancing Respondents’ regularly noticed Motion to Vacate Judgment and for Entry of New
25 Judgment and Statement of Decision Thereon, or, in the alternative, Motion for New Trial, from June
26 7, 2023, to April 5, 2023, or an alternate date before April 28, 2023, subject to the Court’s availability.
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RESPONDENTS’ EX PARTE APPLICATION TO ADVANCE MOTION TO VACATE JUDGMENT AND FOR
ENTRY OF NEW JUDGMENT AND STATEMENT OF DECISION THEREON OR, IN THE ALTERNATIVE,
MOTION FOR NEW TRIAL; DECLARATION OF MATTHEW SICHI IN SUPPORT THEREOF
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1 Moving party is informed by the Court that said ex parte will be heard in chambers with no argument
2 provided.
3 Said Order is requested on the following grounds:
4 1. Pursuant to California Code of Civil Procedure Section 128, every court shall have the
5 power to amend and control its process and orders so as to make them conform to law and justice;
6 2. Petitioner filed a proposed judgment on Petition to Vacate Arbitration Award seeking to
7 have the Petition granted such that the arbitration award is vacated, to have the judgment against
8 Petitioners vacated, and to have judgment entered against Respondents for costs and attorney’s fees.
9 That proposed judgment was not served on Respondents until January 25, 2023.
10 3. On February 1, 2023, and before Respondents were provided the ability to fully object
11 to the proposed judgment, the Court entered judgment against Respondents for Petitioners without a
12 hearing or determination on Petitioners’ motion to vacate arbitration award although the Court of
13 Appeals ordered a complete and unqualified reversal of the underlying judgment for Respondents on
14 Petitioners’ motion to vacate arbitration award.
15 4. Respondents served notice of intent to move to vacate the February 1, 2023, judgment
16 and for a statement of decision or alternative motion for new trial on February 16, 2023. The moving
17 papers were filed February 27, 2023. Petitioners’ opposition was filed March 3, 2023, and
18 Respondents’ reply was filed March 8, 2023. This motion is fully briefed.
19 5. Pursuant to Code of Civil Procedure §§ 663a(b) and 660(c), both a motion to vacate
20 judgment and a motion for new trial must be heard within 75 days of when the moving party is served
21 with notice of entry by the court or party, or if no such notice is served, within 75 days of the filing of
22 the first notice of intent to move for the same. The court’s authority is jurisdictional here 1 and failure to
23 hear said motions within the statutory timeframe operates as an effective denial.
24 6. Although Respondent filed a Notice of Entry of Judgment on February 14, 2023, said
25 Notice was not served on Respondents until March 4, 2023. Thus, Respondents’ motion to vacate
26 judgment or alternative motion for new trial should be heard within 75 days of February 14, 2023, or
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See Dakota Payphone, LLC v. Alcaraz (2011) 192 Cal.App.4th 493.
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RESPONDENTS’ EX PARTE APPLICATION TO ADVANCE MOTION TO VACATE JUDGMENT AND FOR
ENTRY OF NEW JUDGMENT AND STATEMENT OF DECISION THEREON OR, IN THE ALTERNATIVE,
MOTION FOR NEW TRIAL; DECLARATION OF MATTHEW SICHI IN SUPPORT THEREOF
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1 April 28, 2023, in the event this Court deems that the day that Respondents were served with notice of
2 entry.
3 7. Upon receipt of Respondents’ moving papers and affidavits, this Court set a June 7,
4 2023, hearing date for said motions which is outside the jurisdictional framework. Thus, Respondents
5 respectfully request that this Court advance the hearing date of the same to April 5, 2023, or an
6 alternate date before April 28, 2023.
7 Ex Parte Notice: On March 15, 2023, Respondents’ counsel gave notice to Petitioners,
8 advising of the instant ex parte appearance and asking whether Petitioners are opposed. [Sichi Dec. ¶5,
9 Exhibit A]. That as of the time of this filing, no response has been elicited. Id.
10 This application is based on this notice, the attached memorandum of points and authorities, the
11 declaration of Matthew Sichi, the proposed order, all pleading and documents on file herein, and on
12 such further oral arguments that may be heard at the time of the hearing.
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DATED: March 15, 2023 FINNEGAN & DIBA, A LAW CORPORATION
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16 By: _______________________________
MATTHEW SICHI, ESQ.
17 Attorney for Respondents.
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RESPONDENTS’ EX PARTE APPLICATION TO ADVANCE MOTION TO VACATE JUDGMENT AND FOR
ENTRY OF NEW JUDGMENT AND STATEMENT OF DECISION THEREON OR, IN THE ALTERNATIVE,
MOTION FOR NEW TRIAL; DECLARATION OF MATTHEW SICHI IN SUPPORT THEREOF
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1 MEMORANDUM OF POINTS AND AUTHORITIES
2 I.
3 INTRODUCTION
4 Respondents filed a Motion to Vacate and for Statement of Decision or Alternative Motion for
5 New Trial after serving Notice of Intent to move for the same. Upon receipt of the moving papers, the
6 Court set the hearing date of said motion for June 7, 2023.
7 Given that the hearing date, as presently set, is beyond the 75-day jurisdictional authority for
8 this Court to determine such a motion, Respondents respectfully request that the Court advance the
9 hearing date to April 5, 2023, or an alternative date before April 28, 2023, such that Respondents’
10 motion may be heard.
11 The motion is now fully briefed and Petitioners will suffer no prejudice should this Court
12 exercise its inherent authority to control its calendar and advance the hearing date.
13 II.
14 FACTUAL HISTORY UNDERLYING THE INSTANT EX PARTE APPLICATION
15 Petitioner filed a proposed judgment on Petition to Vacate Arbitration Award seeking to have
16 the Petition granted such that the arbitration award is vacated, to have the judgment against Petitioners
17 vacated, and to have judgment entered against Respondents for costs and attorney’s fees. That
18 proposed judgment was not served on Respondents until January 25, 2023.
19 On February 1, 2023, and before Respondents were provided the ability to fully object to the
20 proposed judgment, the Court entered judgment against Respondents for Petitioners without a hearing
21 or determination on Petitioners’ motion to vacate arbitration award although the Court of Appeals
22 ordered a complete and unqualified reversal of the underlying judgment for Respondents on
23 Petitioners’ motion to vacate arbitration award.
24 Respondents served notice of intent to move to vacate the February 1, 2023, judgment and for a
25 statement of decision or alternative motion for new trial on February 16, 2023. The moving papers
26 were filed February 27, 2023. Petitioners’ opposition was filed March 3, 2023, and Respondents’ reply
27 was filed March 8, 2023. [Sichi Dec. ¶3]. This motion is fully briefed. Id.
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RESPONDENTS’ EX PARTE APPLICATION TO ADVANCE MOTION TO VACATE JUDGMENT AND FOR
ENTRY OF NEW JUDGMENT AND STATEMENT OF DECISION THEREON OR, IN THE ALTERNATIVE,
MOTION FOR NEW TRIAL; DECLARATION OF MATTHEW SICHI IN SUPPORT THEREOF
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1 Pursuant to Code of Civil Procedure §§ 663a(b) and 660(c), both a motion to vacate judgment
2 and a motion for new trial must be heard within 75 days of when the moving party is served with
3 notice of entry by the court or party, or if no such notice is served, within 75 days of the filing of the
4 first notice of intent to move for the same. The court’s authority is jurisdictional here, and failure to
5 hear said motions within the statutory timeframe operates as an effective denial.
6 Although Respondent filed a Notice of Entry of Judgment on February 14, 2023, said Notice
7 was not served on Respondents until March 4, 2023. Thus, Respondents’ motion to vacate judgment or
8 alternative motion for new trial should be heard within 75 days of February 14, 2023, or April 28,
9 2023, in the event this Court deems that the day that Respondents were served with notice of entry.
10 Upon receipt of Respondents’ moving papers and affidavits, this Court set a June 7, 2023,
11 hearing date for said motions which is outside the jurisdictional framework. Thus, Respondents
12 respectfully request that this Court advance the hearing date of the same to April 5, 2023, or an
13 alternate date before April 28, 2023.
14 III.
15 GOOD CAUSE EXISTS TO ADVANCE THE HEARING DATE FOR RESPONDENTS’
16 MOTION TO VACATE JUDGMENT AND FOR ENTRY OF NEW JUDGMENT AND
17 STATEMENT OF DECISION THEREON
18 An applicant must make an affirmative factual showing in a declaration containing competent
19 testimony based on personal knowledge of irreparable harm, immediate danger, or any other statutory
20 basis for granting relief ex parte. California Rules of Court, rule 3.1202(c). An order advancing the
21 hearing dates is warranted on the following grounds:
22 The date set by this Court for hearing Respondents’ motion to vacate judgment or alternative
23 motion for new trial is outside the jurisdictional statutory period to hear the same pursuant to Code of
24 Civil Procedure §§ 663a(b) and 660(c) respectively. Failure to hear said motions within the stated
25 timeframe operates as an effective denial of the same as the court lacks jurisdiction to hear such a
26 motion beyond the 75-day period.
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RESPONDENTS’ EX PARTE APPLICATION TO ADVANCE MOTION TO VACATE JUDGMENT AND FOR
ENTRY OF NEW JUDGMENT AND STATEMENT OF DECISION THEREON OR, IN THE ALTERNATIVE,
MOTION FOR NEW TRIAL; DECLARATION OF MATTHEW SICHI IN SUPPORT THEREOF
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1 Good cause thus exists to advance said hearing to April 5, 2023, or another date before April
2 28, 2023, subject to the Court’s availability as Respondents will be deprived of a ruling on these
3 motions should the dates not be advance.
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5 IV.
6 THE COURT HAS INHERENT POWER TO CONTROL ITS OWN CALENDAR
7 Pursuant to California Code of Civil Procedure Section 128, “[e]very court shall have the
8 power to...amend and control its process and orders so as to make them conform to law and justice.”
9 For the aforementioned reasons, in order to conform to law and justice and not irreparably harm
10 Respondents through the loss of the ability to avail themselves to the Court’s determination on
11 Respondents’ motions, Respondents ask that this Court exercise its inherent authority to advance the
12 hearing date of the same.
13 V.
14 CONCLUSION
15 For the above-stated reasons, Respondents’ respectfully request that the Court grant this
16 application for an order advancing Respondents’ regularly requested noticed Motion to Vacate
17 Judgment and for Entry of New Judgment and Statement of Decision Thereon, or, in the alternative,
18 Motion for New Trial, to April 5, 2023, or an alternative date before April 20, 2023, subject to the
19 Court’s availability.
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DATED: March 15, 2023 FINNEGAN & DIBA, A LAW CORPORATION
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By: _______________________________
24 MATTHEW SICHI, ESQ.
Attorney for Respondents.
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RESPONDENTS’ EX PARTE APPLICATION TO ADVANCE MOTION TO VACATE JUDGMENT AND FOR
ENTRY OF NEW JUDGMENT AND STATEMENT OF DECISION THEREON OR, IN THE ALTERNATIVE,
MOTION FOR NEW TRIAL; DECLARATION OF MATTHEW SICHI IN SUPPORT THEREOF
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1 DECLARATION OF MATTHEW SICHI
2 I, Matthew Sichi, declare as follows:
3 1. I am an attorney at law duly admitted to practice before all the courts of the State of
4 California and the Attorney of record for all Respondents in the above captioned action. All the facts
5 contained herein are of my personal knowledge with exception to what has been set forth herein on the
6 basis of my information and belief and if called as a witness I would and could competently testify
7 thereto.
8 2. I am submitting this Declaration in support of Respondents’ Ex Parte Application to
9 Advance Motion to Vacate Judgment and for Entry of New Judgment and Statement of Decision
10 Thereon or, in the Alternative, Motion for New Trial.
11 3. I filed Respondents’ Motion to Vacate Judgment and for Entry of New Judgment and
12 Statement of Decision Thereon or, in the Alternative, Motion for New Trial (“Motion”) on February
13 27, 2023, after service notice of intent to move for the same on February 16, 2023. Petitioners’
14 opposition was filed March 3, 2023, and Respondents’ reply was filed March 8, 2023. This motion is
15 fully briefed.
16 4. On March 11, 2023, the Court set a hearing date for Respondents’ Motion to be heard
17 on June 7, 2023, at 3:00 P.M., in Department 18. That hearing date is outside of the jurisdictional
18 timeframe within which the court may hear such motions pursuant to Code of Civil Procedure §§
19 663a(b) and 660(c). Accordingly, Respondents appear now respectfully requesting that this Court
20 advance said hearing date to April 5, 2023, or an alternative date subject to this Court’s availability.
21 5. That on March 15, 2023, I emailed Mr. Honchariw, counsel for petitioners, to advise of
22 this ex parte application, asking whether Petitioners are opposed to the same, and asking for any dates
23 of unavailability within the April 5, 2023, to April 28, 2023, time period. As of the time of this filing,
24 no response has been elicited. A true and correct copy of my March 15, 2023, email notice is attached
25 hereto as Exhibit A.
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RESPONDENTS’ EX PARTE APPLICATION TO ADVANCE MOTION TO VACATE JUDGMENT AND FOR
ENTRY OF NEW JUDGMENT AND STATEMENT OF DECISION THEREON OR, IN THE ALTERNATIVE,
MOTION FOR NEW TRIAL; DECLARATION OF MATTHEW SICHI IN SUPPORT THEREOF
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1 I declare the foregoing is true under the penalty of perjury under the laws of the State of
2 California. Executed this 15th day of March 2023, at Los Angeles, California.
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__________________________
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Declarant, Matthew Sichi
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RESPONDENTS’ EX PARTE APPLICATION TO ADVANCE MOTION TO VACATE JUDGMENT AND FOR
ENTRY OF NEW JUDGMENT AND STATEMENT OF DECISION THEREON OR, IN THE ALTERNATIVE,
MOTION FOR NEW TRIAL; DECLARATION OF MATTHEW SICHI IN SUPPORT THEREOF
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Rosalyn Truong
From: Matt Sichi
Sent: Wednesday, March 15, 2023 1:05 PM
To: Nicholas Honchariw
Cc: Rosalyn Truong; Kasey Diba, Esq.; Nicholas Ta
Subject: Honchariw v. FJM et al - EX PARTE NOTICE TO ADVANCE HEARING DATE
Mr. Honchariw,
As you are likely aware, the Court set the hearing date on Respondents’ motion to vacate or for new trial for June 7,
2023, At 3:00 pm in Department 18 of the Sonoma County Superior Court.
Given that the date is outside of the jurisdictional period for the court to rule on such motions, please take notice that
we will be moving ex parte tomorrow March 16, 2023, at 10:30 AM in Department 18 of the Sonoma County Superior
Court to advance the hearing date of the same from June 7, 2023, to April 5, 2023, or an alternative time prior to April
28, 2023, subject to the Court’s availability. I am advised that said application will be heard in chambers and without
any opportunity for argument.
I presume you are not opposed to having said hearing date advanced and would like to include in my moving papers, any
unavailability you might have from April 5, 2023, to April 28, 2023. Please let me know whether you are opposed to the
ex parte application and any unavailability you might have during the stated timeframe. Thank you in advance for your
anticipated cooperation. I am available telephonically all day today should you wish to discuss this further.
Best,
Matthew Sichi, Esq.
3660 Wilshire Blvd., Suite 800
Los Angeles, CA 90010
Tel: (213)480-0292
Fax: (213)480-0805
msichi@fdlegal.com
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This message contains information which may be confidential and privileged.
Unless you are the addressee ( or authorized to receive for the addressee),
you may not use, copy, or disclose to anyone the message or any information
contained in the message. If you have received the message in error, please
advise the sender by reply email to msichi@fdlegal.com, and delete the message.
This email message is for the sole use of the intended recipient(s) and may contain
confidential and privileged information. Any unauthorized review, use, disclosure or
distribution is prohibited. If you are not the intended recipient, please contact the
sender by reply e-mail, and destroy all copies of the original message in accordance
with Rico vs. Mitsubishi Motors Corp. (2007) 42 Cal.4th 807, 817, 68 Cal.Rptr.3d 758.
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PROOF OF SERVICE
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STATE OF CALIFORNIA, COUNTY OF LOS ANGELES
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I am employed in the County of Los Angeles, State of California. I am over the age of 18 and
3 not a party to the within action; my business address is: 3660 Wilshire Boulevard, Suite 800, Los
Angeles, California 90010.
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On the date herein below specified, I served the foregoing document described as set forth below
5 on the interested parties in this action by placing true copies thereof enclosed in sealed envelopes, at Los
Angeles, California, addressed as follows:
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Date of Service: MARCH 15, 2023
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8 Document(s) Served: RESPONDENTS’ EX PARTE APPLICATOIN TO ADVANCE
MOTION TO VACATE JUDGMENT AND FOR ENTRY OF NEW
9 JUDGMENT AND STATEMENT OF DECISION THEREON OR,
IN THE ALTERNATIVE, MOTION FOR NEW TRIAL;
10 DECLSARATION OF MATTHEW SICHI IN SUPPORT
THEREOF
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12 Person(s) Served: NICHOLAS HONCHARIW
429 DUBOIS LANE
13 P.O. BOX 1452
14 GENOA, NV 89411
NH@NHPART.COM
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16 (BY U.S. Mail) I enclosed the documents in a sealed envelope or package addressed to the
address above and deposited the sealed envelope with the United States Postal Service, with the postage
17 fully prepaid or placed the envelope for collection and certified mailing with return receipt, in a sealed
envelope with postage fully prepaid.
18 (BY OVERNIGHT DELIVERY) I enclosed the documents in an envelope or package provided
by an overnight deliver carrier and addressed to the persons at the addresses above. I placed the envelope
19 or package for collection and overnight delivery at an office or a regularly utilized drop box of the
overnight delivery carrier.
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(BY FAX) I faxed the documents to the persons at the fax numbers listed above. No error was
21 reported by the fax machine that I used.
22 (BY MESSENGER SERVICE) I served the documents by placing them in an envelope or
package addressed to the addresses above and provided them to a professional messenger service for
23 personal service on this date.
24 (BY PERSONAL SERVICE) I personally delivered by hand to the offices of the addressee(s).
25 XX (BY EMAIL TRANSMISSION) I emailed a copy of the foregoing document(s) this date via
email to the email addresses shown above.
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PROOF OF SERVICE
1 XX (STATE) I declare under penalty of perjury under the laws of the State of California that the
above is true and correct.
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EXECUTED at Los Angeles, California, on March 15, 2023
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PROOF OF SERVICE
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KASEY DIBA, ESQ. (SBN 171081) 1 MATTHEW SICHI, ESQ. (SBN 306165) FINNEGAN & DIBA, A LAW CORPORATION 2 3660 Wilshire Boulevard, Suite 800 Los Angeles, California 90010 3 Telephone: (213) 480-0292 Facsimile: (213) 480-0805 4 Attorneys for Respondents FJM Private Mortgage, LLC, FJM Capital, Inc. dba First Bridge Lending, 5 FJM Management, LLC dba First Bridge Lending 6 SUPERIOR COURT OF THE STATE OF CALIFORNIA 7 FOR THE COUNTY OF SONOMA 8 9 In the Matter of the Arbitration between Case No.: SCV-267331 10 Nicholas and Sharon Honchariw, RESPONDENTS’ EX PARTE 11 Petitioners APPLICATION TO ADVANCE MOTION TO VACATE JUDGMENT AND FOR 12 vs. ENTRY OF NEW JUDGMENT AND STATEMENT OF DECISION THEREON 13 FJM Private Mortgage Fund, LLC, FJM Capital, OR, IN THE ALTERNATIVE, MOTION Inc., dba First Bridge Lending, FJM FOR NEW TRIAL; DECLARATION OF 14 Management, LLC dba First Bridge Lending; MATTHEW SICHI IN SUPPORT and DOES 1 through 5, inclusive, THEREOF 15 Respondents. (Filed concurrently with [Proposed] Order] 16 DATE: MARCH 16, 2023 17 TIME: 10:30 a.m DEPT: 18 18 19 TO ALL PARTIES AND THEIR COUNSEL OF RECORD: 20 PLEASE TAKE NOTICE that on March 16, 2023, at 10:30 A.M., or as soon thereafter as the 21 matter may be heard in Department “18” of the above-entitled Court, located at 600 Administration 22 Drive, Santa Rosa, CA 95403, Respondents FJM Private Mortgage, LLC, FJM Capital, Inc. dba First 23 Bridge Lending, and FJM Management, LLC dba First Bridge Lending, will seek on an ex parte basis 24 an order advancing Respondents’ regularly noticed Motion to Vacate Judgment and for Entry of New 25 Judgment and Statement of Decision Thereon, or, in the alternative, Motion for New Trial, from June 26 7, 2023, to April 5, 2023, or an alternate date before April 28, 2023, subject to the Court’s availability. 27 28 RESPONDENTS’ EX PARTE APPLICATION TO ADVANCE MOTION TO VACATE JUDGMENT AND FOR ENTRY OF NEW JUDGMENT AND STATEMENT OF DECISION THEREON OR, IN THE ALTERNATIVE, MOTION FOR NEW TRIAL; DECLARATION OF MATTHEW SICHI IN SUPPORT THEREOF 1 1 Moving party is informed by the Court that said ex parte will be heard in chambers with no argument 2 provided. 3 Said Order is requested on the following grounds: 4 1. Pursuant to California Code of Civil Procedure Section 128, every court shall have the 5 power to amend and control its process and orders so as to make them conform to law and justice; 6 2. Petitioner filed a proposed judgment on Petition to Vacate Arbitration Award seeking to 7 have the Petition granted such that the arbitration award is vacated, to have the judgment against 8 Petitioners vacated, and to have judgment entered against Respondents for costs and attorney’s fees. 9 That proposed judgment was not served on Respondents until January 25, 2023. 10 3. On February 1, 2023, and before Respondents were provided the ability to fully object 11 to the proposed judgment, the Court entered judgment against Respondents for Petitioners without a 12 hearing or determination on Petitioners’ motion to vacate arbitration award although the Court of 13 Appeals ordered a complete and unqualified reversal of the underlying judgment for Respondents on 14 Petitioners’ motion to vacate arbitration award. 15 4. Respondents served notice of intent to move to vacate the February 1, 2023, judgment 16 and for a statement of decision or alternative motion for new trial on February 16, 2023. The moving 17 papers were filed February 27, 2023. Petitioners’ opposition was filed March 3, 2023, and 18 Respondents’ reply was filed March 8, 2023. This motion is fully briefed. 19 5. Pursuant to Code of Civil Procedure §§ 663a(b) and 660(c), both a motion to vacate 20 judgment and a motion for new trial must be heard within 75 days of when the moving party is served 21 with notice of entry by the court or party, or if no such notice is served, within 75 days of the filing of 22 the first notice of intent to move for the same. The court’s authority is jurisdictional here 1 and failure to 23 hear said motions within the statutory timeframe operates as an effective denial. 24 6. Although Respondent filed a Notice of Entry of Judgment on February 14, 2023, said 25 Notice was not served on Respondents until March 4, 2023. Thus, Respondents’ motion to vacate 26 judgment or alternative motion for new trial should be heard within 75 days of February 14, 2023, or 27 1 See Dakota Payphone, LLC v. Alcaraz (2011) 192 Cal.App.4th 493. 28 RESPONDENTS’ EX PARTE APPLICATION TO ADVANCE MOTION TO VACATE JUDGMENT AND FOR ENTRY OF NEW JUDGMENT AND STATEMENT OF DECISION THEREON OR, IN THE ALTERNATIVE, MOTION FOR NEW TRIAL; DECLARATION OF MATTHEW SICHI IN SUPPORT THEREOF 2 1 April 28, 2023, in the event this Court deems that the day that Respondents were served with notice of 2 entry. 3 7. Upon receipt of Respondents’ moving papers and affidavits, this Court set a June 7, 4 2023, hearing date for said motions which is outside the jurisdictional framework. Thus, Respondents 5 respectfully request that this Court advance the hearing date of the same to April 5, 2023, or an 6 alternate date before April 28, 2023. 7 Ex Parte Notice: On March 15, 2023, Respondents’ counsel gave notice to Petitioners, 8 advising of the instant ex parte appearance and asking whether Petitioners are opposed. [Sichi Dec. ¶5, 9 Exhibit A]. That as of the time of this filing, no response has been elicited. Id. 10 This application is based on this notice, the attached memorandum of points and authorities, the 11 declaration of Matthew Sichi, the proposed order, all pleading and documents on file herein, and on 12 such further oral arguments that may be heard at the time of the hearing. 13 14 DATED: March 15, 2023 FINNEGAN & DIBA, A LAW CORPORATION 15 16 By: _______________________________ MATTHEW SICHI, ESQ. 17 Attorney for Respondents. 18 19 20 21 22 23 24 25 26 27 28 RESPONDENTS’ EX PARTE APPLICATION TO ADVANCE MOTION TO VACATE JUDGMENT AND FOR ENTRY OF NEW JUDGMENT AND STATEMENT OF DECISION THEREON OR, IN THE ALTERNATIVE, MOTION FOR NEW TRIAL; DECLARATION OF MATTHEW SICHI IN SUPPORT THEREOF 3 1 MEMORANDUM OF POINTS AND AUTHORITIES 2 I. 3 INTRODUCTION 4 Respondents filed a Motion to Vacate and for Statement of Decision or Alternative Motion for 5 New Trial after serving Notice of Intent to move for the same. Upon receipt of the moving papers, the 6 Court set the hearing date of said motion for June 7, 2023. 7 Given that the hearing date, as presently set, is beyond the 75-day jurisdictional authority for 8 this Court to determine such a motion, Respondents respectfully request that the Court advance the 9 hearing date to April 5, 2023, or an alternative date before April 28, 2023, such that Respondents’ 10 motion may be heard. 11 The motion is now fully briefed and Petitioners will suffer no prejudice should this Court 12 exercise its inherent authority to control its calendar and advance the hearing date. 13 II. 14 FACTUAL HISTORY UNDERLYING THE INSTANT EX PARTE APPLICATION 15 Petitioner filed a proposed judgment on Petition to Vacate Arbitration Award seeking to have 16 the Petition granted such that the arbitration award is vacated, to have the judgment against Petitioners 17 vacated, and to have judgment entered against Respondents for costs and attorney’s fees. That 18 proposed judgment was not served on Respondents until January 25, 2023. 19 On February 1, 2023, and before Respondents were provided the ability to fully object to the 20 proposed judgment, the Court entered judgment against Respondents for Petitioners without a hearing 21 or determination on Petitioners’ motion to vacate arbitration award although the Court of Appeals 22 ordered a complete and unqualified reversal of the underlying judgment for Respondents on 23 Petitioners’ motion to vacate arbitration award. 24 Respondents served notice of intent to move to vacate the February 1, 2023, judgment and for a 25 statement of decision or alternative motion for new trial on February 16, 2023. The moving papers 26 were filed February 27, 2023. Petitioners’ opposition was filed March 3, 2023, and Respondents’ reply 27 was filed March 8, 2023. [Sichi Dec. ¶3]. This motion is fully briefed. Id. 28 RESPONDENTS’ EX PARTE APPLICATION TO ADVANCE MOTION TO VACATE JUDGMENT AND FOR ENTRY OF NEW JUDGMENT AND STATEMENT OF DECISION THEREON OR, IN THE ALTERNATIVE, MOTION FOR NEW TRIAL; DECLARATION OF MATTHEW SICHI IN SUPPORT THEREOF 4 1 Pursuant to Code of Civil Procedure §§ 663a(b) and 660(c), both a motion to vacate judgment 2 and a motion for new trial must be heard within 75 days of when the moving party is served with 3 notice of entry by the court or party, or if no such notice is served, within 75 days of the filing of the 4 first notice of intent to move for the same. The court’s authority is jurisdictional here, and failure to 5 hear said motions within the statutory timeframe operates as an effective denial. 6 Although Respondent filed a Notice of Entry of Judgment on February 14, 2023, said Notice 7 was not served on Respondents until March 4, 2023. Thus, Respondents’ motion to vacate judgment or 8 alternative motion for new trial should be heard within 75 days of February 14, 2023, or April 28, 9 2023, in the event this Court deems that the day that Respondents were served with notice of entry. 10 Upon receipt of Respondents’ moving papers and affidavits, this Court set a June 7, 2023, 11 hearing date for said motions which is outside the jurisdictional framework. Thus, Respondents 12 respectfully request that this Court advance the hearing date of the same to April 5, 2023, or an 13 alternate date before April 28, 2023. 14 III. 15 GOOD CAUSE EXISTS TO ADVANCE THE HEARING DATE FOR RESPONDENTS’ 16 MOTION TO VACATE JUDGMENT AND FOR ENTRY OF NEW JUDGMENT AND 17 STATEMENT OF DECISION THEREON 18 An applicant must make an affirmative factual showing in a declaration containing competent 19 testimony based on personal knowledge of irreparable harm, immediate danger, or any other statutory 20 basis for granting relief ex parte. California Rules of Court, rule 3.1202(c). An order advancing the 21 hearing dates is warranted on the following grounds: 22 The date set by this Court for hearing Respondents’ motion to vacate judgment or alternative 23 motion for new trial is outside the jurisdictional statutory period to hear the same pursuant to Code of 24 Civil Procedure §§ 663a(b) and 660(c) respectively. Failure to hear said motions within the stated 25 timeframe operates as an effective denial of the same as the court lacks jurisdiction to hear such a 26 motion beyond the 75-day period. 27 28 RESPONDENTS’ EX PARTE APPLICATION TO ADVANCE MOTION TO VACATE JUDGMENT AND FOR ENTRY OF NEW JUDGMENT AND STATEMENT OF DECISION THEREON OR, IN THE ALTERNATIVE, MOTION FOR NEW TRIAL; DECLARATION OF MATTHEW SICHI IN SUPPORT THEREOF 5 1 Good cause thus exists to advance said hearing to April 5, 2023, or another date before April 2 28, 2023, subject to the Court’s availability as Respondents will be deprived of a ruling on these 3 motions should the dates not be advance. 4 5 IV. 6 THE COURT HAS INHERENT POWER TO CONTROL ITS OWN CALENDAR 7 Pursuant to California Code of Civil Procedure Section 128, “[e]very court shall have the 8 power to...amend and control its process and orders so as to make them conform to law and justice.” 9 For the aforementioned reasons, in order to conform to law and justice and not irreparably harm 10 Respondents through the loss of the ability to avail themselves to the Court’s determination on 11 Respondents’ motions, Respondents ask that this Court exercise its inherent authority to advance the 12 hearing date of the same. 13 V. 14 CONCLUSION 15 For the above-stated reasons, Respondents’ respectfully request that the Court grant this 16 application for an order advancing Respondents’ regularly requested noticed Motion to Vacate 17 Judgment and for Entry of New Judgment and Statement of Decision Thereon, or, in the alternative, 18 Motion for New Trial, to April 5, 2023, or an alternative date before April 20, 2023, subject to the 19 Court’s availability. 20 21 DATED: March 15, 2023 FINNEGAN & DIBA, A LAW CORPORATION 22 23 By: _______________________________ 24 MATTHEW SICHI, ESQ. Attorney for Respondents. 25 26 27 28 RESPONDENTS’ EX PARTE APPLICATION TO ADVANCE MOTION TO VACATE JUDGMENT AND FOR ENTRY OF NEW JUDGMENT AND STATEMENT OF DECISION THEREON OR, IN THE ALTERNATIVE, MOTION FOR NEW TRIAL; DECLARATION OF MATTHEW SICHI IN SUPPORT THEREOF 6 1 DECLARATION OF MATTHEW SICHI 2 I, Matthew Sichi, declare as follows: 3 1. I am an attorney at law duly admitted to practice before all the courts of the State of 4 California and the Attorney of record for all Respondents in the above captioned action. All the facts 5 contained herein are of my personal knowledge with exception to what has been set forth herein on the 6 basis of my information and belief and if called as a witness I would and could competently testify 7 thereto. 8 2. I am submitting this Declaration in support of Respondents’ Ex Parte Application to 9 Advance Motion to Vacate Judgment and for Entry of New Judgment and Statement of Decision 10 Thereon or, in the Alternative, Motion for New Trial. 11 3. I filed Respondents’ Motion to Vacate Judgment and for Entry of New Judgment and 12 Statement of Decision Thereon or, in the Alternative, Motion for New Trial (“Motion”) on February 13 27, 2023, after service notice of intent to move for the same on February 16, 2023. Petitioners’ 14 opposition was filed March 3, 2023, and Respondents’ reply was filed March 8, 2023. This motion is 15 fully briefed. 16 4. On March 11, 2023, the Court set a hearing date for Respondents’ Motion to be heard 17 on June 7, 2023, at 3:00 P.M., in Department 18. That hearing date is outside of the jurisdictional 18 timeframe within which the court may hear such motions pursuant to Code of Civil Procedure §§ 19 663a(b) and 660(c). Accordingly, Respondents appear now respectfully requesting that this Court 20 advance said hearing date to April 5, 2023, or an alternative date subject to this Court’s availability. 21 5. That on March 15, 2023, I emailed Mr. Honchariw, counsel for petitioners, to advise of 22 this ex parte application, asking whether Petitioners are opposed to the same, and asking for any dates 23 of unavailability within the April 5, 2023, to April 28, 2023, time period. As of the time of this filing, 24 no response has been elicited. A true and correct copy of my March 15, 2023, email notice is attached 25 hereto as Exhibit A. 26 27 28 RESPONDENTS’ EX PARTE APPLICATION TO ADVANCE MOTION TO VACATE JUDGMENT AND FOR ENTRY OF NEW JUDGMENT AND STATEMENT OF DECISION THEREON OR, IN THE ALTERNATIVE, MOTION FOR NEW TRIAL; DECLARATION OF MATTHEW SICHI IN SUPPORT THEREOF 7 1 I declare the foregoing is true under the penalty of perjury under the laws of the State of 2 California. Executed this 15th day of March 2023, at Los Angeles, California. 3 __________________________ 4 Declarant, Matthew Sichi 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 RESPONDENTS’ EX PARTE APPLICATION TO ADVANCE MOTION TO VACATE JUDGMENT AND FOR ENTRY OF NEW JUDGMENT AND STATEMENT OF DECISION THEREON OR, IN THE ALTERNATIVE, MOTION FOR NEW TRIAL; DECLARATION OF MATTHEW SICHI IN SUPPORT THEREOF 8 Rosalyn Truong From: Matt Sichi Sent: Wednesday, March 15, 2023 1:05 PM To: Nicholas Honchariw Cc: Rosalyn Truong; Kasey Diba, Esq.; Nicholas Ta Subject: Honchariw v. FJM et al - EX PARTE NOTICE TO ADVANCE HEARING DATE Mr. Honchariw, As you are likely aware, the Court set the hearing date on Respondents’ motion to vacate or for new trial for June 7, 2023, At 3:00 pm in Department 18 of the Sonoma County Superior Court. Given that the date is outside of the jurisdictional period for the court to rule on such motions, please take notice that we will be moving ex parte tomorrow March 16, 2023, at 10:30 AM in Department 18 of the Sonoma County Superior Court to advance the hearing date of the same from June 7, 2023, to April 5, 2023, or an alternative time prior to April 28, 2023, subject to the Court’s availability. I am advised that said application will be heard in chambers and without any opportunity for argument. I presume you are not opposed to having said hearing date advanced and would like to include in my moving papers, any unavailability you might have from April 5, 2023, to April 28, 2023. Please let me know whether you are opposed to the ex parte application and any unavailability you might have during the stated timeframe. Thank you in advance for your anticipated cooperation. I am available telephonically all day today should you wish to discuss this further. Best, Matthew Sichi, Esq. 3660 Wilshire Blvd., Suite 800 Los Angeles, CA 90010 Tel: (213)480-0292 Fax: (213)480-0805 msichi@fdlegal.com ================================== This message contains information which may be confidential and privileged. Unless you are the addressee ( or authorized to receive for the addressee), you may not use, copy, or disclose to anyone the message or any information contained in the message. If you have received the message in error, please advise the sender by reply email to msichi@fdlegal.com, and delete the message. This email message is for the sole use of the intended recipient(s) and may contain confidential and privileged information. Any unauthorized review, use, disclosure or distribution is prohibited. If you are not the intended recipient, please contact the sender by reply e-mail, and destroy all copies of the original message in accordance with Rico vs. Mitsubishi Motors Corp. (2007) 42 Cal.4th 807, 817, 68 Cal.Rptr.3d 758. 1 PROOF OF SERVICE 1 STATE OF CALIFORNIA, COUNTY OF LOS ANGELES 2 I am employed in the County of Los Angeles, State of California. I am over the age of 18 and 3 not a party to the within action; my business address is: 3660 Wilshire Boulevard, Suite 800, Los Angeles, California 90010. 4 On the date herein below specified, I served the foregoing document described as set forth below 5 on the interested parties in this action by placing true copies thereof enclosed in sealed envelopes, at Los Angeles, California, addressed as follows: 6 Date of Service: MARCH 15, 2023 7 8 Document(s) Served: RESPONDENTS’ EX PARTE APPLICATOIN TO ADVANCE MOTION TO VACATE JUDGMENT AND FOR ENTRY OF NEW 9 JUDGMENT AND STATEMENT OF DECISION THEREON OR, IN THE ALTERNATIVE, MOTION FOR NEW TRIAL; 10 DECLSARATION OF MATTHEW SICHI IN SUPPORT THEREOF 11 12 Person(s) Served: NICHOLAS HONCHARIW 429 DUBOIS LANE 13 P.O. BOX 1452 14 GENOA, NV 89411 NH@NHPART.COM 15 16 (BY U.S. Mail) I enclosed the documents in a sealed envelope or package addressed to the address above and deposited the sealed envelope with the United States Postal Service, with the postage 17 fully prepaid or placed the envelope for collection and certified mailing with return receipt, in a sealed envelope with postage fully prepaid. 18 (BY OVERNIGHT DELIVERY) I enclosed the documents in an envelope or package provided by an overnight deliver carrier and addressed to the persons at the addresses above. I placed the envelope 19 or package for collection and overnight delivery at an office or a regularly utilized drop box of the overnight delivery carrier. 20 (BY FAX) I faxed the documents to the persons at the fax numbers listed above. No error was 21 reported by the fax machine that I used. 22 (BY MESSENGER SERVICE) I served the documents by placing them in an envelope or package addressed to the addresses above and provided them to a professional messenger service for 23 personal service on this date. 24 (BY PERSONAL SERVICE) I personally delivered by hand to the offices of the addressee(s). 25 XX (BY EMAIL TRANSMISSION) I emailed a copy of the foregoing document(s) this date via email to the email addresses shown above. 26 27 28 1 PROOF OF SERVICE 1 XX (STATE) I declare under penalty of perjury under the laws of the State of California that the above is true and correct. 2 EXECUTED at Los Angeles, California, on March 15, 2023 3 4 5 Declarant, Rosalyn Truong 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 PROOF OF SERVICE