Judge: Michael P. Linfield, Case: 21STCV33378, Date: 2023-05-04 Tentative Ruling
Case Number: 21STCV33378 Hearing Date: May 4, 2023 Dept: 34
SUBJECT: Motion to
Continue Trial and All Pretrial Dates and Deadlines, Including the Discovery
Motion Hearings
Moving Party: Plaintiff
NIVO-1, LLC
Resp. Party: Defendants Ami Kimoto, Weimin Liu, and Lin Dee
Liu
SUBJECT: Motion to be
Relieved as Counsel
Moving Party: Plaintiff’s
Counsel June D. Coleman
Resp. Party: Defendants Ami Kimoto, Weimin Liu, and Lin Dee
Liu
The Motion to Continue is GRANTED in part. The trial is continued until December ___,
2023; the discovery deadlines are not extended.
There shall be no further continuances.
The Motion to be Relieved as Counsel is GRANTED.
BACKGROUND:
On September 10,
2021, Plaintiffs NIVO-1, LLC and Anne Kihagi filed their Complaint against
Defendants Ami Kimoto, Weimin Liu, and Lin Dee Liu regarding causes of action
arising from a series of loans the Parties were involved in.
On October
29, 2021, Plaintiffs filed their First Amended Complaint.
On January
24, 2022, the Court: (1) determined that Plaintiff Anne Kihagi is a vexatious
litigation, pursuant to Code of Civil Procedure section 391; and (2) entered a
order prohibiting her from filing any new litigation in the courts of
California in propria persona without first obtaining leave of the
president judge or justice of the court where the new litigation is to be
filed, pursuant to Code of Civil Procedure section 391.7, subdivision (a).
On May 11,
2022, the Court dismissed with prejudice Plaintiff Anne Kihagi from the First
Amended Complaint because Plaintiff Anne Kihagi failed to post a security bond
as previously ordered by the Court on February 4, 2022.
On April 14,
2023, June D. Coleman, who is Counsel for Plaintiff NIVO I, LLC, filed her
MC-051, Motion to be Relieved as Counsel. Counsel Coleman concurrently filed:
(1) MC-052, Declaration; (2) MC-053, Proposed Order; and (3) multiple sets of
POS-040, Proofs of Service.
On April 17,
2023, Defendants Lin Dee Liu, Ami Kimoto, and Weimin Liu (“Defendants”) filed
their Answer to the First Amended Complaint.
On April 18,
2023, Plaintiff NIVO 1, LLC filed its Motion to Continue Trial and All Pretrial
Dates and Deadlines, Including the Discovery Motion Hearings (“Motion to
Continue”). In support of its Motion to Continue, Plaintiff concurrently filed
Declaration of June D. Coleman.
On April 27, 2023,
Defendants filed their Combined Memorandum of Points and Authorities in
Opposition to Plaintiff’s Motions to Withdraw and Continue Trial (“Combined
Opposition”). Defendants concurrently filed: (1) Declaration of Ravi D. Sahae;
and (2) Proof of Service.
On May 1,
2023, Plaintiff NIVO 1, LLC filed its Reply. Plaintiff concurrently filed
Supplemental Declaration of June D. Coleman.
ANALYSIS:
I.
Motion to Continue Trial and All Related Trial Dates
A.
Legal
Standard
Pursuant to California Rules of Court Rule 3.1332(b), “[a] party
seeking a continuance of the date set for trial, whether contested or
uncontested or stipulated to by the parties, must make the request for a
continuance by a noticed motion or an ex parte application under the rules in
chapter 4 of this division, with supporting declarations. The party must make
the motion or application as soon as reasonably practical once the necessity
for the continuance is discovered.”
“Although continuances of trials are disfavored, each request for a
continuance must be considered on its own merits. The court may grant a
continuance only on an affirmative showing of good cause requiring the
continuance.” (Cal. Rules of Court, Rule 3.1332(c); See also In re Marriage
of Falcone (2008) 164 Cal.App.4th 814, 823
(“Continuances are
granted only on an affirmative showing of good cause requiring a
continuance.”).)
Rule 3.1332(c) indicates that circumstances that may indicate good
cause include “the unavailability of trial counsel because of death, illness,
or other excusable circumstances,” “[a] party's excused inability to obtain
essential testimony, documents, or other material evidence despite diligent
efforts,” and “[a] significant, unanticipated change in the status of the case
a result of which the case is not ready for trial.”
Other factors to consider under California Rules of Court, Rule
3.1332(d) include:
“(1) The proximity of the trial date;
(2) Whether there was any previous
continuance, extension of time, or delay of trial due to any party;
(3) The length of the continuance requested;
(4) The availability of alternative means to
address the problem that gave rise to the motion or application for a
continuance;
(5) The prejudice that parties or witnesses
will suffer as a result of the continuance;
(6) If the case is entitled to a preferential
trial setting, the
reasons for that status and whether the need
for a continuance outweighs the need to avoid delay;
(7) The court's calendar and the impact of
granting a continuance on other pending trials;
(8) Whether trial counsel is engaged in
another trial;
(9) Whether all parties have stipulated to a
continuance;
(10) Whether the interests of justice are
best served by a continuance, by the trial of the matter, or by imposing
conditions on the continuance; and
(11) Any other fact or circumstance relevant
to the fair determination of the motion or application.”
B.
Discussion
1.
The
Parties’ Arguments
Plaintiff NIVO-1, LLC (“Plaintiff’) moves the Court to continue trial,
the final status conference, and all other pretrial dates and deadlines.
(Motion to Continue, p. 6:3–5.) Plaintiff argues that good cause exists here
because it will be without competent counsel since Plaintiff’s current counsel,
June Coleman, just had knee surgery and is not currently able to represent
Plaintiff. (Id. at pp. 5:22–24, 6:5–7.)
In support of the Motion to Continue, Counsel Coleman declares: (1)
that Counsel had been told for months prior to her knee surgery that she would
be able to continue work part time within a couple weeks of surgery; (2) that
on March 23, 2023, Counsel was told for the first time at her pre-operation
appointment that she would not be able to work part time for weeks or even
months; (3) that Counsel had surgery for a total knee replacement on March 29,
2023; (4) that Counsel is currently taking opioids for pain relief throughout
the entire day and is on medical leave until May 12, at which point her medical
status will be reevaluated; (5) that Nicole Strickler, one of the owners of
Counsel’s law firm, has been unsuccessful in discussing continuances with Defense
Counsel; (6) that Counsel is the only California attorney in her firm; and (7)
that no attorney in Counsel’s law firm practices in the areas of law raised in
this litigation. (Decl. Coleman, ¶¶ 2–4.)
Defendants oppose the Motion to Continue, arguing: (1) that
continuances are disfavored; (2) that Plaintiff’s evidentiary showing is
insufficient; (3) that Plaintiff cannot show good cause because Plaintiff’s
Counsel is a competent law firm; (4) that Plaintiff’s Motion to Continue is
nothing but intentional delay tactics and gamesmanship to cover up for
inexcusable neglect; (5) that Plaintiff should be estopped from seeking any
other trial date; (6) that a continuance would be prejudicial and cannot
relieve Plaintiff of its discovery negligence; (7) that if a continuance is
granted, it should be conditioned on Plaintiff’s payment of the $5,625.00
awarded on Defendants’ Motion to Expunge Lis Pendens and an extension for the
discovery motion cutoff regarding Defendants’ timely propounded discovery
requests. (Combined Opposition, pp. 2:19, 3:17, 6:10–11, 8:24-25, 11:2,
13:12–13, 14:22–28, 15:1–7.)
Plaintiff reiterates its arguments in its Reply. Plaintiff also argues:
(1) that the motions should be granted based on the factors discussed in
California Rules of Court, rule 3.1332(d); and (2) the judicial officer that
heard the coordination petition did not reply upon the trial date but rather
relied on the complexity of the cases. (Reply, pp. 6:10:3–4, 12:2–3.)
2.
Consideration
of the Relevant Factors
a.
Prior
Litigation Behavior
This Court has previously found that Plaintiff and Plaintiff’s Counsel
have not acted professionally at multiple points in this litigation. For
example, in its Minute Order dated August 31, 2022, the Court noted how the
Court “firmly believes that Plaintiff is playing games” because the frivolous
arguments made in Plaintiff’s Opposition to the Motion to Expunge Lis Pendens
and the arguments Plaintiff’s Counsel made at that hearing. The Court also
dismissed with prejudice of former-Plaintiff Anne Kihagi, who was determined to
be a vexatious litigant and failed to post her court-ordered bond.
Nearly three weeks after Plaintiff’s Counsel had a total knee surgery,
Plaintiff filed its Motion to Continue— which will be heard less than one month
before Trial — on the grounds that Plaintiff’s Counsel is currently unable to
provide competent representation due to the aforementioned knee surgery.
The Court continues to be concerned about Plaintiff’s actions in this
matter. Among other questions raised by
these pleadings are:
·
When did Plaintiff’s Counsel find out she needed
surgery?
·
Why was this issue not brought to the Court’s
attention at the time Plaintiff’s Counsel knew she would need surgery?
·
Why did it take nearly three weeks after
Plaintiff’s Counsel already had surgery for the Motion to Continue to be filed?
·
Did Counsel believe that part-time work in the
month before trial would meet the professional standard of care required of
her?
·
Why didn’t Plaintiff’s Counsel have a plan in
place for Plaintiff’s representation in the event that she could not return to
work on time?
·
Has any work been done on finding Plaintiff new
counsel?
Further, it appears that Plaintiff has chosen not to conduct discovery
and prepare for trial. According to Defense Counsel:
“Plaintiff has conducted no
discovery in this action, at all. Plaintiff has not propounded any written
discovery, conducted any non-party discovery, or taken any depositions. Nor has
Plaintiff responded to Defendant’s discovery (other than tardy and barred
objections), produced any documents, or appeared for deposition, despite
Defendant’s timely discovery requests. [Citation omitted.] And Plaintiff has
not designated any expert witness either, despite acknowledging in the
coordination opposition [citation omitted] that this case involves expert
testimony. Expert disclosure was due on April 12, 2023, pursuant to Defendant’s
timely expert demand.” (Decl. Sahae, ¶ 5.)
b.
The
Potential Prejudice to Defendants is Minimal
Defendants have not presented the Court with evidence to show that
there would be substantial prejudice to Defendants if trial were continued.
c.
The
Prejudice to Plaintiff of Denying a Continuance would be Enormous
If the Court does not continue trial, then Plaintiff will very likely
lose this case because it is without an attorney.
Aside from
narrow exceptions such as in small claims court, the California Supreme Court
has long held that corporations cannot represent themselves in propria
persona in court. (Merco Constr. Engineers, Inc. v. Mun. Ct. (1978)
21 Cal.3d.724, 730.)
Here, Defendants
correctly point out that Plaintiff’s Counsel is the Messer Strickler Burnette,
Ltd. law firm, of which June Coleman is only a part. However, Counsel Coleman
has declared, among other things, that Counsel Coleman is the only California
attorney in her firm and that no attorney in Counsel Coleman’s law firm
practices in the areas of law raised in this litigation. Although Plaintiff has
not explained why other members of her firm were not brought in pro hac vice
prior to this point, that issue is now irrelevant.
Plaintiff is in
a situation where it must obtain new counsel prior to Trial if it seeks
to try this case. To do so less than four weeks before Trial is virtually impossible,
and it is not clear to what extent it is Plaintiff’s fault that its
Counsel has acted in this manner.
d.
There
are No Prior Continuances
Trial is currently scheduled for May 30, 2023. This is the original
trial date. No continuances have been previously granted in this case.
3.
There
is Good Cause for a Continuance
Weighing the factors, the Court finds that there is good cause for a
continuance. While former-Plaintiff Kihagi and Plaintiff’s Counsel may well
have acted unprofessionally, it is not clear to what extent the current
situation is Plaintiff NIVO-1’s fault. No prior continuances have been
requested or granted, which weighs significantly in favor of allowing this
continuance.
Given these circumstances, the Court will grant one continuance; no
further continuances shall be allowed.
However, the Court declines to extend the discovery deadlines. Aside
from Defense Counsel’s declaration, the Court does not have any evidence (much
less sufficient evidence) to determine whether Plaintiff has or has not
conducted discovery in this matter. More importantly, Plaintiff’s Counsel’s current
medical emergency is not an excuse for Plaintiff to have failed to conduct discovery
since Plaintiff filed this case more than 1½ years ago.
Lastly, the Court declines to condition the continuance on the payment
of previously-awarded monetary sanctions.
C.
Conclusion
The Motion to Continue is GRANTED in part. The trial is continued until December ___,
2023; the discovery deadlines are not extended.
There shall be no further continuances.
II.
Motion
to be Relieved as Counsel
A. Legal
Standard
An attorney moving to be relieved as counsel under California Code of
Civil Procedure section 284(2) must meet the requirements set out in California
Rules of Court, rule 3.1362.
To comply with rule 3.1362, the moving party must submit the following
forms: (1) Notice of Motion and Motion to be Relieved as Counsel; (2)
Declaration in Support of Attorney's Motion to be Relieved as Counsel; and (3)
Order Granting Attorney's Motion to be Relieved as Counsel. (Cal. Rules of
Court, rule 3.1362(a), (c), (e).)
The moving party must serve the aforementioned forms on the client and
all other parties who have appeared in the case. (Cal. Rules of Court, rule
3.1362(d).) Further, when the client is served by mail, the attorney's
declaration must show that the client's address was confirmed within the last
30 days and how it was confirmed. (Id.)
Absent a showing of resulting prejudice, an attorney’s request for
withdrawal should be granted. (People
v. Prince (1968) 268 Cal.App.2d 398, 406.)
B. Discussion
Counsel Coleman’s Motion to be Relieved as Counsel complies with all of
the requirements of California Rules of Court, rule 3.1362, in that Counsel
provided notice of motion and motion to be relieved as counsel; proposed order
granting attorney’s motion to be relieved as counsel; and declaration in
support of the motion to be relieved as counsel. The declaration states that Plaintiff
has consented to Counsel Coleman’s withdrawal as counsel and that Counsel is
currently incapable of provided competent representation due to her recent
surgery. Additionally, the declaration states that Counsels’ client has been
served by mail at its last known address, which was confirmed current within
the past 30 days by conversation. (See Declaration, Item 3.b.(1)(c).)
Clearly, Plaintiff needs to be represented by
counsel. However, since the Court is
continuing the trial, this issue is now moot.
C. Conclusion
The Motion to be Relieved as Counsel is GRANTED.