PHONE (626) 446.6442, FACSIMILE (626)446.

6454ARCADIA, CALIFORNIA 91006150 NORTH SANTA ANITA AVENUE, SUITE 200LAW OFFICES OF VINCENT W. DAVIS & ASSOCIATES

1
2
3
4
5
6
7

LAW OFFICES OF VINCENT W. DAVIS & ASSOCIATES

Vincent W. Davis. Esq. (SBN 125399)
Carol A. Baidas, Esq. (SBN 263036)
Robert S. Kahn, Esq. (SBN 231277)
150 North Santa Anita Avenue
Suite 200
Arcadia, California 91006
Phone: (626) 446-6442
Facsimile: (626) 446-6454
Email: [email protected]
Attorneys for Plaintiff

SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF KERN

10
11
12
13
14
15
16
17
18
19
20
21

HAO D. BUI,

)
)
Plaintiff,
)
)
vs.
)
)
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.
)
)

Case No.: S-1500-CV-271889

PLAINTIFFS EX PARTE APPLICATION
FOR ORDER SHORTENING TIME ON A
MOTION FOR LEAVE TO AMEND
COMPLAINT; DECLARATION OF
ROBERT S. KAHN, MEMORANDUM OF
POINTS AND AUTHORITIES IN SUPPORT
THEREOF; [PROPOSED] ORDER
Dept. 15
Trial Date: April 23, 2012

22
23
24
25
26
27
28

PHONE (626) 446.6442, FACSIMILE (626)446.6454ARCADIA, CALIFORNIA 91006150 NORTH SANTA ANITA AVENUE, SUITE 200LAW OFFICES OF VINCENT W. DAVIS & ASSOCIATES

1
2
3
4

TO THE HONORABLE DAVID R. LAMPE, ALL PARTIES AND THEIR ATTORNEYS OF

RECORD HEREIN:
PLEASE TAKE NOTICE that on April 3, 2012 at 8:30 a.m., or as soon as possible thereafter,

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

7
8
9
10

and File a First Amended Complaint.

This application is based upon the following grounds, including Plaintiff will be prejudiced if
this Application is denied, and the Plaintiff will be prejudiced if he is required to comply with CCP
1005(b) which requires notice of sixteen(16) court days before the hearing.

11
12

Dated: April 2, 2012

LAW OFFICES OF VINCENT W. DAVIS & ASSOCIATES

13
14
15

By:
Robert S. Kahn, Esq.
Attorneys for Plaintiff Hao Bui

16
17
18
19
20
21
22
23
24
25
26
27
28

PHONE (626) 446.6442, FACSIMILE (626)446.6454ARCADIA, CALIFORNIA 91006150 NORTH SANTA ANITA AVENUE, SUITE 200LAW OFFICES OF VINCENT W. DAVIS & ASSOCIATES

1
2

MEMORANDUM OF POINTS AND AUTHORITIES

I

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,

9
10

which makes a properly noticed motion for leave to amend, absent an order shortening time,

11

impossible to be heard before trial.

12

II.

13
14
15
16
17
18

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

19
20
21
22
23

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

24

complaint filed by the Plaintiff on October 12, 2010 names only the defendants in this matter. After

25

the Complaint was Answered by the defendants, several cross actions were initiated between the

26
27
28

PHONE (626) 446.6442, FACSIMILE (626)446.6454ARCADIA, CALIFORNIA 91006150 NORTH SANTA ANITA AVENUE, SUITE 200LAW OFFICES OF VINCENT W. DAVIS & ASSOCIATES

1
2
3
4

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.

10

1005(b).
Furthermore, California Rules of Court, Rule 3.1300(b) provides that the Court may issue an

11
12

order shortening time for notice of motion. The court, on its own motion or on application for an

13

order shortening time supported by a declaration showing good cause, may prescribe shorter times

14

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

15
16
17
18

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.

19
20
21
22
23
24

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.

25
26
27

1 As of March 22, 2012, all cross actions in this matter have been stayed pending the outcome of a trial between Plaintiff and

28

Defendants.

PHONE (626) 446.6442, FACSIMILE (626)446.6454ARCADIA, CALIFORNIA 91006150 NORTH SANTA ANITA AVENUE, SUITE 200LAW OFFICES OF VINCENT W. DAVIS & ASSOCIATES

Dated: April 2, 2012

LAW OFFICES OF VINCENT W. DAVIS & ASSOCIATES

2
3

By:
Robert S. Kahn, Esq.

4
5

Attorneys for Plaintiff Hao Bui

6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

DECLARATION OF ROBERT S. KAHN

I, Robert S. Kahn, declare:
1.

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.
4.

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.
5.

To date, I have received no objections to the ex parte appearance.

6.

To date, I have received no objection to proceeding with a hearing on Plaintiffs motion for

leave to amend on shortened notice.

I declare under the penalty of perjury, under the laws of the State of California, that the
foregoing is true and correct. Executed on April 2, 2012, in Arcadia, California.

Robert S. Kahn, Esq.

Declarant

SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF KERN
HAO D. BUI,

)
)
Plaintiff,
)
)
vs.
)
)
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.
)
)

Case No.: S-1500-CV-271889

[PROPOSED] ORDER SHORTENING
TIME ON A MOTION FOR LEAVE TO
AMEND COMPLAINT
Dept. 15
Trial Date: April 23, 2012

PHONE (626) 446.6442, FACSIMILE (626)446.6454ARCADIA, CALIFORNIA 91006150 NORTH SANTA ANITA AVENUE, SUITE 200LAW OFFICES OF VINCENT W. DAVIS & ASSOCIATES

1
2
3
4

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.

5
6

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

date of this Order.

9
10
11

Date: April ___, 2012

___________________________________
HONORABLE DAVID R. LAMPE
CALIFORNIA SUPERIOR COURT JUDGE

12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28