Creates a legal pleading

LAW OFFICES OF VINCENT W. DAVIS & ASSOCIATES 150 NORTH SANTA ANITA AVENUE, SUITE 200ARCADIA, CALIFORNIA 91006PHONE (626) 446.6442, FACSIMILE (626)446.645411& A12345678910111213141516171819202122232425262728LAW OFFICES OF VINCENT W. DAVIS & ASSOCIATESVincent W. Davis. Esq. (SBN 125399)Carol A. Baidas, Esq. (SBN 263036)Robert S. Kahn, Esq. (SBN 231277)150 North Santa Anita AvenueSuite 200Arcadia, California 91006Phone: (626) 446-6442Facsimile: (626) 446-6454Email: robert@vincentwdavis.com

Attorneys for Plaintiff

SUPERIOR COURT OF THE STATE OF CALIFORNIACOUNTY OF KERN

LAW OFFICES OF VINCENT W. DAVIS & ASSOCIATES 150 NORTH SANTA ANITA AVENUE, SUITE 200ARCADIA, CALIFORNIA 91006PHONE (626) 446.6442, FACSIMILE (626)446.645411& A12345678910111213141516171819202122232425262728

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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. 15Trial Date: April 23, 2012

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 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.

Dated: April 2, 2012LAW OFFICES OF VINCENT W. DAVIS & ASSOCIATES

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

MEMORANDUM OF POINTS AND AUTHORITIESI INTRODUCTIONPlaintiff 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, which makes a properly noticed motion for leave to amend, absent an order shortening time, impossible to be heard before trial.II. STATEMENT OF FACTSThis 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 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 complaint filed by the Plaintiff on October 12, 2010 names only the defendants in this matter. After the Complaint was Answered by the defendants, several cross actions were initiated between the defendants (as cross complainants) and other additional cross-parties.[footnoteRef: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. [1: As of March 22, 2012, all cross actions in this matter have been stayed pending the outcome of a trial between Plaintiff and Defendants.]

III.LEGAL ARGUMENTEvery 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. 1005(b).Furthermore, California Rules of Court, Rule 3.1300(b) provides that the Court may issue an order shortening time for notice of motion. The court, on its own motion or on application for an order shortening time supported by a declaration showing good cause, may prescribe shorter times 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 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.IV. CONCLUSIONFor 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.

Dated: April 2, 2012LAW OFFICES OF VINCENT W. DAVIS & ASSOCIATES

By: Robert S. Kahn, Esq.

LAW OFFICES OF VINCENT W. DAVIS & ASSOCIATES 150 NORTH SANTA ANITA AVENUE, SUITE 200ARCADIA, CALIFORNIA 91006PHONE (626) 446.6442, FACSIMILE (626)446.645411& A12345678910111213141516171819202122232425262728Attorneys for Plaintiff Hao Bui

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DECLARATION OF ROBERT S. KAHNI, 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

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SUPERIOR COURT OF THE STATE OF CALIFORNIACOUNTY 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. 15Trial Date: April 23, 2012Plaintiff 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.

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.

Date: April ___, 2012___________________________________ HONORABLE DAVID R. LAMPECALIFORNIA SUPERIOR COURT JUDGE

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