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6454ARCADIA, CALIFORNIA 91006150 NORTH SANTA ANITA AVENUE, SUITE 200LAW OFFICES OF VINCENT W. DAVIS & ASSOCIATES
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COUNTY OF KERN
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HAO D. BUI,
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Plaintiff,
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vs.
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4901 CENTENNIAL PARTNERS, LLC., )
DONALD J. SCHIMNOWSKI an
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individual, CARLOS SANCHEZ an
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individual, MANJIT S. SIDHU an
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individual, and DOES 1-XX, Inclusive
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Defendants.
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AND ALL RELATED ACTIONS.
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PHONE (626) 446.6442, FACSIMILE (626)446.6454ARCADIA, CALIFORNIA 91006150 NORTH SANTA ANITA AVENUE, SUITE 200LAW OFFICES OF VINCENT W. DAVIS & ASSOCIATES
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at 1415 North Truxton, Bakersfield, California, HAO BUI (hereinafter Plaintiff) will and hereby
does apply to the Court ex-parte for an order Shortening Time on its Motion For Leave to Amend
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By:
Robert S. Kahn, Esq.
Attorneys for Plaintiff Hao Bui
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PHONE (626) 446.6442, FACSIMILE (626)446.6454ARCADIA, CALIFORNIA 91006150 NORTH SANTA ANITA AVENUE, SUITE 200LAW OFFICES OF VINCENT W. DAVIS & ASSOCIATES
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INTRODUCTION
Plaintiff will file a motion for an order granting Plaintiff leave to amend his complaint. Cal.
Civ. Pro. 1005(b) requires notice of sixteen (16) court days before the hearing. Plaintiff requests
the Court grant an Oder Shortening Time to Hear Motion for Leave to Amend from sixteen (16)
court days prior to the hearing to three (3) calendar days before the requested hearing date of April
12, 2012. Opposition to the motion for leave to amend, if any, is due two (2) court days prior to the
hearing.
Plaintiff makes this request on its behalf in light of the impending trial date of April 23, 2012,
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which makes a properly noticed motion for leave to amend, absent an order shortening time,
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II.
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STATEMENT OF FACTS
This case arises from the damages sustained by Plaintiff as a result of his purchasing a
commercial building located at 4901 Centennial Way, Bakersfield, CA (hereinafter the Property)
from the Defendants, which purchase and sale transaction closed in or about December 2009.
Approximately 3-4 weeks after the transactions close, and shortly after beginning tenant
improvement work on the Property, moisture was discovered in certain areas on the underside of the
Propertys roof which was covered up by ceiling insulation (installed prior to the Plaintiff purchasing
the Property) and which moisture was not visible until the Plaintiffs contractor began work on the
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raising of a demising wall, which work involved removing sections of the roof insulation in
preparation of raising the demising wall. It is undisputed that upon further examination of the
moisture certain types of mold and fungus were identified.
Plaintiffs complaint for damages contains claims for Breach of Fiduciary Duty, Breach of
Contract, Fraud, Negligent Misrepresentation, Suppression of Facts as a result of this incident. The
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complaint filed by the Plaintiff on October 12, 2010 names only the defendants in this matter. After
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the Complaint was Answered by the defendants, several cross actions were initiated between the
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PHONE (626) 446.6442, FACSIMILE (626)446.6454ARCADIA, CALIFORNIA 91006150 NORTH SANTA ANITA AVENUE, SUITE 200LAW OFFICES OF VINCENT W. DAVIS & ASSOCIATES
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defendants (as cross complainants) and other additional cross-parties.1 During Discovery, and after
Plaintiffs current counsel began working on the case, it was discovered that additional unnamed
parties may be liable to Plaintiff.
III.LEGAL ARGUMENT
Every court has the inherent power to regulate the proceedings of the matters before it and
effect an orderly disposition of the issues presented to it. Cottle v. Superior Court (1993) 3
Cal.App.4th 1367, 1377. This authority empowers a court to relieve a party from the sixteen (16)
court day provision set forth in Cal. Civ. Pro. 1005(b). In addition, courts are empowered to
prescribe a shorter time for serving and filing the motion and supporting papers. Cal. Civ. Proc.
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1005(b).
Furthermore, California Rules of Court, Rule 3.1300(b) provides that the Court may issue an
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order shortening time for notice of motion. The court, on its own motion or on application for an
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order shortening time supported by a declaration showing good cause, may prescribe shorter times
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for the filing and service of papers than the times specified in Code of Civil Procedure section 1005.
In the instant case, Plaintiff seeks to file a First Amended Complaint. The Notice requirement
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pursuant to Cal. Civ. Pro. 1005 would delay the hearing of the motion to April 24, 2012, one (1) day
after trial is set to begin in this matter. An order shortening time would allow the hearing to take
place on or before April 13, 2012, the date of the Final Status Conference in this matter. Thus, good
cause exists to shorten the time requested to notice this motion.
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IV.
CONCLUSION
For the reasons herein stated, Plaintiff respectfully requests that this court grant the instant ex
parte application and issue its order shortening time to file, serve and hear Plaintiffs Motion for
Leave to Amend from sixteen (16) court days prior to the hearing to three (3) calendar days before
the requested hearing date of April 13, 2012. Opposition to the Motion for Leave to Amend, if any, is
due two (2) court days prior to the hearing.
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1 As of March 22, 2012, all cross actions in this matter have been stayed pending the outcome of a trial between Plaintiff and
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Defendants.
PHONE (626) 446.6442, FACSIMILE (626)446.6454ARCADIA, CALIFORNIA 91006150 NORTH SANTA ANITA AVENUE, SUITE 200LAW OFFICES OF VINCENT W. DAVIS & ASSOCIATES
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By:
Robert S. Kahn, Esq.
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I am an attorney licensed to practice law in the State of California, and of Counsel with the
Law Offices of Vincent W. Davis & Associates, attorneys of record for Plaintiff Hao Bui. All of the
facts stated herein are known to me, of my personal knowledge or stated on information and belief,
and if called to testify, I can and will testify as follows:
2.
I plan to file and serve Plaintiffs Motion for Leave to Amend on April 2, 2012. Notice
requirement pursuant to Cal. Civ. Pro. 1005 would delay the hearing of the motion to April 24,
2012, one (1) court day after the case is set for trial. An order shortening time, as requested in this
application, would allow the haring to take place on April 13, 2012, the date of the Final Status
Conference in this matter. Thus, good cause exists to shorten the time requested to notice this
motion.
3.
On April 2, 2012, a letter was faxed by my office giving all counsel notice of this ex parte
application, as the letter stated, Please be advised that the Plaintiff, Hao Bui, will appear ex parte for
an order shortening time to bring a motion for leave to amend, in Dept. 15 in the Kern County
Superior Court, at 8:30 a.m. on Tuesday, April 3, 2012, in the above matter. A true and correct copy
of this letter is attached hereto as Exhibit A.
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On April 2, 2012, 2007, copies of the Ex Parte Application, the Memorandum of Points and
Authorities, and the Declaration of Robert S. Kahn were provided to all counsel by facsimile.
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To date, I have received no objection to proceeding with a hearing on Plaintiffs motion for
)
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Plaintiff,
)
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vs.
)
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4901 CENTENNIAL PARTNERS, LLC., )
DONALD J. SCHIMNOWSKI an
)
individual, CARLOS SANCHEZ an
)
individual, MANJIT S. SIDHU an
)
individual, and DOES 1-XX, Inclusive
)
)
Defendants.
)
)
)
AND ALL RELATED ACTIONS.
)
)
PHONE (626) 446.6442, FACSIMILE (626)446.6454ARCADIA, CALIFORNIA 91006150 NORTH SANTA ANITA AVENUE, SUITE 200LAW OFFICES OF VINCENT W. DAVIS & ASSOCIATES
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Plaintiff Hao Buis Ex Parte Application for an Order Shortening Time for Notice of a Motion
for Leave to Amend came on for hearing in Department 15 of this Court on April 3, 2012.
Having read the application and other papers filed by the parties, and having heard argument of
counsel, the Court finds that ex parte relief is proper.
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THEREFORE, the Ex Parte Application for an Order Shortening time for Notice of a Motion
for Leave to Amend is GRANTED. Plaintiffs Motion for Leave to Amend is deemed filed as of the
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___________________________________
HONORABLE DAVID R. LAMPE
CALIFORNIA SUPERIOR COURT JUDGE
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