Ex Parte Application[1]

i ____________________ EX PARTE APPLICATION 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 EX PARTE APPLICATION WHAT IS THE DOCUMENT? Expedited request by a party for an order or other relief. WHAT ARE THE APPLICABLE STATE/LOCAL COURT RULES? 1. CRC, Rule 379 SPECIAL RULES OR OTHER REQUIREMENTS 1. Call court to confirm the time applications are heard. Normally heard in Central District at 8:30 a.m. [L.R. 9.9]. 2. Must give notice to all other parties before 10:00 a.m. on the court day before the hearing of the date, time, and place of hearing on application, the party and/or parties against whom the relief is sought, provide a specific statement of the relief being sought and must attempt to determine if any party will oppose the application [CRC, Rule 379(e)(1)]. a. NOTE: Clerk CANNOT reject an application for noncompllianc with notice requirements and MUST submit the application to the appropriate judicial officer for consideration [CRC, Rule 379(c)]. 3. Must prepare declaration identifying who notice was given to, including when and where, and a statement of what response, if any, was given by each party notified. If notice given in writing, must attach to declaration and must include proof of receipt of writing. ii ____________________ EX PARTE APPLICATION 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4. If application seeks the same or similar relief previously rejected in an earlier application, this fact must be disclosed in current application [CRC, Rule 379(d)(2)]. 5. File papers directly with the clerk in the department/bring extra copies for conforming and service/Prepare proposed order. NOTE: Moving party MUST serve application at “first reasonable opportunity.” [CRC, Rule 379(h)]. 6. Check out file from Room 112 and bring to courtroom.1 ____________________ EX PARTE APPLICATION 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 STEIN & ASSOCIATES Michael D. Stein (SBN 132540) 5235 West Allen Street Suite 200 Los Angeles, CA 90067 Tel: (213) 555-0994 Fax: (213) 555-0995 Attorneys for Plaintiff SCOTT ALAN WOODWARD SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES SCOTT ALAN WOODWARD, Plaintiff, vs. B-2 VIDEO INCORPORATED, a California corporation; PETER JOHNSON, an individual; and DOES 1 through 20 inclusive, Defendants. ) ) ) ) )))))) ))) )) ) ) ) ) )) ) ) ) ) ) ) ) Case No.: ASSIGNED FOR ALL PURPOSES TO JUDGE JOHN SMITH Department 27 EX PARTE APPLICATION BY PLAINTIFF SCOTT ALAN WOODWARD FOR ORDER NUNC PRO TUNC CORRECTING REQUEST FOR DISMISSAL OF FIRST AMENDED COMPLAINT AND CLERK’S ENTRY OF DISMISSAL; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF MICHAEL D. STEIN DATE: July 19, 2004 TIME: 8:30 a.m. DEPT: 27 COMPLAINT FILED: January 9, 2004 TRIAL DATE: November 1, 2004 ) 2 ____________________ EX PARTE APPLICATION 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Pursuant to Code of Civil Procedure Sections 128(a)(8) and 473, plaintiff Scott Alan Woodward (“Plaintiff”) hereby applies ex parte for an order correcting nunc pro tunc Plaintiff’s March 11, 2004 Request for Dismissal of its First Amended Complaint and the Clerk’s March 16, 2004 entry of dismissal on Plaintiff’s First Amended Complaint. The correction is requested to clarify that the dismissal extends only to defendant B-2 Video Incorporated (“B-2”) and not to any other defendants. This application is made on the following grounds: 1. On February 9, 2004, Plaintiff filed its First Amended Complaint against B-2 and Peter Johnson (“Johnson”). 2. On March 5, 2004, a settlement agreement (“the Settlement Agreement”) in connection with the First Amended Complaint was executed between Plaintiff and B-2. A true and correct copy of the Settlement Agreement is attached as Exhibit “A” to the Declaration of Michael D. Stein (“Stein Declaration”) filed concurrently herewith. 3. Johnson was not a party to the Settlement Agreement. 4. As part of the Settlement Agreement, Plaintiff agreed to deliver “to [B-2] a dismissal, with prejudice, of its First Amended Complaint as against [B-2], in the form attached hereto as Exhibit “A.” [Emphasis added]. 5. Although the Settlement Agreement’s express language indicated that Plaintiff’s dismissal of the First Amended 3 ____________________ EX PARTE APPLICATION 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Complaint extended only to B-2, and not to Johnson, Plaintiff’s Request for Dismissal of the First Amended Complaint inadvertently stated simply that the First Amended Complaint would be dismissed, instead of specifying that it was limited to B-2. A true and correct copy of Plaintiff’s Request for Dismissal is attached as Exhibit “B” to the Stein Declaration. 6. The Court Clerk entered the dismissal on Plaintiff’s First Amended Complaint on March 16, 2004. 7. Plaintiff applies to the Court for an Order nunc pro tunc correcting Plaintiff’s March 11, 2004 Request for Dismissal of the First Amended Complaint and the Clerk’s March 16, 2004 entry of dismissal to state that the dismissal extends only to B-2, thereby making it consistent with the Settlement Agreement. 8. Plaintiff is seeking the requested Order on an ex parte basis in light of the time limitation imposed by Code of Civil Procedure Section 473. However, none of the parties will be prejudiced by the instant application or the requested relief. DATED: March 31, 2004 STEIN & ASSOCIATES By: _________________________________ Michael D. Stein Attorneys for Plaintiff SCOTT ALAN WOODWARD 4 ____________________ EX PARTE APPLICATION 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MEMORANDUM OF POINTS AND AUTHORITIES I. SUMMARY OF MATERIAL FACTS [ADD SUMMARY OF MATERIAL FACTS HERE] II. LEGAL DISCUSSION [ADD LEGAL DISCUSSION HERE] III. CONCLUSION For all of the foregoing reasons, plaintiff Scott Alan Woodward respectfully requests that the instant ex parte application be granted. DATED: March 31, 2004 STEIN & ASSOCIATES By: _________________________________ Michael D. Stein Attorneys for Plaintiff SCOTT ALAN WOODWARD 5 ____________________ EX PARTE APPLICATION 1 2 3 4 5 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 MICHAEL D. STEIN MICHAEL D. STEIN declares: 1. I am an attorney at law, duly licensed and entitled to practice law in the State of California and before this Court. I am a partner in the law firm of Stein & Stein, counsel of record for plaintiff Scott Alan Woodward (“Plaintiff”) in the abovecapttione action. 2. By virtue of the foregoing, I have personal knowledge of the facts set forth in this Declaration and, if called upon as a witness, could and would testify competently to these facts under oath. 3. On February 9, 2004, Plaintiff filed its First Amended Complaint against B-2 and Peter Johnson (“Johnson”). 4. On March 5, 2004, a settlement agreement (“the Settlement Agreement”) in connection with the First Amended Complaint was executed between Plaintiff and defendant B-2 Video Incorporated (“B-2”). A true and correct copy of the Settlement Agreement is attached hereto as Exhibit “A” and is incorporated herein by this reference. Johnson was not a party to the Settlement Agreement. 5. As part of the Settlement Agreement, Plaintiff agreed to deliver “to [B-2] a dismissal, with prejudice, of its First Amended Complaint as against [B-2], in the form attached hereto as Exhibit “A.” [Emphasis added]. 6 ____________________ EX PARTE APPLICATION 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6. Although the Settlement Agreement’s express language indicated that Plaintiff’s dismissal of the First Amended Complaint extended only to B-2, and not to Johnson, Plaintiff’s Request for Dismissal of the First Amended Complaint inadvertently stated simply that the First Amended Complaint would be dismissed, instead of specifying that it was limited to B-2. A true and correct copy of Plaintiff’s Request for Dismissal is attached hereto as Exhibit “B” and is incorporated herein by this reference. 7. The Court Clerk entered the dismissal on Plaintiff’s First Amended Complaint on March 16, 2004. 8. On July 16, 2004, at 9:32 a.m., I contacted Joanna Kim, Esq., counsel for defendant B-2 Video Incorporated, and advised her of Plaintiff’s intention to file the instant ex parte application and of the nature of the requested relief. I further advised Ms. Kim that the hearing on the application would be held on July 19, 2004 at 8:30 a.m. in Department 27. Ms. Kim stated that she did not oppose the application. 9. On July 16, 2004, at 9:48 a.m., I contacted Karl R. Stutman, Esq., counsel for defendant Peter Johnson, and advised him of Plaintiff’s intention to file the instant ex parte application and of the nature of the requested relief. I further advised Mr. Stutman that the hearing on the application would be 7 ____________________ EX PARTE APPLICATION 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 held on July 19, 2004 at 8:30 a.m. in Department 27. Mr. Stutman stated he intended to oppose the application. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct and that this Declaration was executed on July 16, 2004 at Los Angeles, California. __________________________ Michael D. Stein 8 ____________________ EX PARTE APPLICATION 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES SCOTT ALAN WOODWARD, Plaintiff, vs. B-2 VIDEO INCORPORATED, a California corporation; PETER JOHNSON, an individual; and DOES 1 through 20 inclusive, Defendants. ) ) ) ) )))))) ))) )) ) ) ) ) )) ) ) ) ) ) ) ) Case No.: ASSIGNED FOR ALL PURPOSES TO JUDGE JOHN SMITH Department 27 [PROPOSED] ORDER GRANTING EX PARTE APPLICATION BY PLAINTIFF SCOTT ALAN WOODWARD FOR ORDER NUNC PRO TUNC CORRECTING REQUEST FOR DISMISSAL OF FIRST AMENDED COMPLAINT AND CLERK’S ENTRY OF DISMISSAL ) 9 ____________________ EX PARTE APPLICATION 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 The Court, having read and considered the “Ex Parte Application By Plaintiff Scott Alan Woodward for Order Nunc Pro Tunc Correcting Request for Dismissal of First Amended Complaint and Clerk’s Entry of Dismissal; Memorandum of Points and Authorities; Declaration of Michael D. Stein” and good cause appearing therefore makes the following ORDER: Plaintiff Scott Alan Woodward’s (“Plaintiff”) March 11, 2004 Request for Dismissal of his First Amended Complaint and the Clerk’s March 16, 2004 entry of dismissal on Plaintiff’s First Amended Complaint in the above-captioned action are hereby modified to read as follows: “Plaintiff Scott Alan Woodward’s First Amended Complaint is dismissed with prejudice as to defendant B-2 Video Incorporated only.” DATED:____________________ _______________________________ JUDGE OF THE SUPERIOR COURT