Judge: Upinder S. Kalra, Case: BC704662, Date: 2022-09-27 Tentative Ruling

Case Number: BC704662    Hearing Date: September 27, 2022    Dept: 51

Ruling

Judge Upinder S. Kalra, Department 51 for Department 53

HEARING DATE:     September 21, 2022                                                  

CASE:                         MAHER MEMARZADEH VS LOTTIE COHEN ET AL 

CASE NO.:                 BC704662  

Until further notice, pursuant to General Order 2020-GEN-018-00 and Code of Civil Procedure § 166(a)(l), the court will not entertain oral argument for an ex parte application for relief.

DEFENDANT’S  EX PARTE APPLICATION TO COMPEL PLAINTIFF’S DEPOSITION

MOVING PARTY:   Defendant LOTTIE COHEN ET AL 

RESPONDING PARTY(S): Plaintiff MAHER MEMARZADEH

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS:

            Plaintiff filed a complaint on May 1, 2018.  Trial was initially scheduled for February 23, 2022. On December 28, 2021, Plaintiff’s Ex Parte Application to continue the trial and all related hearings was granted. Trial was re-set for May 25, 2022. On May 5, 2022, Trial was re-set for October 26, 2022. On September 21, 2022, this Court Denied Plaintiff’s Ex Parte Application to continue the trial. Defendant objected reiterating that Plaintiff has yet to appear for the deposition noticed in 2019.

RULING: The Ex Parte Application is Denied.

DISCUSSION:

“ ‘A court will not grant ex parte relief ‘in any but the plainest and most certain of cases.’ ’ (People ex rel. Allstate Ins. Co. v. Suh (2019) 37 Cal.App.5th 253, 257.) Substantively, ‘[a]n applicant must make an affirmative factual showing in a declaration containing competent testimony based on personal knowledge of irreparable harm, immediate danger, or any other statutory basis for granting relief ex parte.’ (Cal. Rules of Court, rule 3.1202(c) . . . . ‘A trial court should deny an ex parte application absent the requisite showing.’ (People ex rel. Allstate Ins. Co., at p. 257.)” (Newsom v. Superior Court (Sutter County) (2020) 51 Cal.app.5^th 1093 (Newsom).) Diligence is a vital prerequisite for irreparable harm. Defendant has acknowledged that they have been seeking a voluntary deposition for three years.  Now, on the eve of trial to ask for an order using the Ex Parte process is hardly demonstrating diligence. Thus, as of now, Plaintiff has failed to establish “irreparable harm, immediate danger, or any other statutory basis” for utilizing the ex parte process to continue the trial scheduled for October 26, 2022. Instead, this Court will treat this Ex Parte application as a request to shorten time to hear a Motion to Compel the Deposition of Plaintiff and convert this Application into a motion to be heard at the Final Status Conference on October 13, 2022 at 11:00 AM. Of course, if the deposition occurs prior to that date, this motion will be moot.

Clerk to give notice

IT IS SO ORDERED.

Dated: September 26, 2022                                        ___________________________________

                                                                                    Upinder S. Kalra

                                                                                    Judge of the Superior Court