Arch Insurance Company v. Sierra Equipment Rental, Inc. et al

Filing 175

STIPULATION and ORDER signed by District Judge Kimberly J. Mueller on 2/29/16 ORDERING that the deadline for submission of joint pre-trial statements shall be 8/12/2016. The Final Pretrial Conference is SET for 8/26/2016 at 10:00 AM in Courtroom 3 (KJM) before District Judge Kimberly J. Mueller. The Trial Date of 8/29/2016 and the deadline for trial briefs are hereby vacated. A new trial date and associated deadlines shall be set at the Final Pre-Trial Conference. (Kastilahn, A)

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BENNETT J. LEE (Bar No. 230482)
ANDREW VAN ORNUM (Bar No. 214040)
VARELA LEE METZ & GUARINO, LLP
333 Bush Street, Suite 1500
San Francisco, CA 94104
Telephone: [phone]
Facsimile: 415-623-7001
Email:
[e-mail]

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Attorneys for Plaintiff
ARCH INSURANCE COMPANY

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA – SACRAMENTO DIVISION

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Case No. 2:12-CV-00617 KJM (KJN)
ARCH INSURANCE COMPANY,

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Plaintiff,

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STIPULATION AND EX PARTE
APPLICATION TO CONTINUE TRIAL
DATE AND PRE-TRIAL CONFERENCE
DATES; AND ORDER

vs.
SIERRA EQUIPMENT RENTAL, INC., et
al.
Defendants

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Pursuant to Rule 16(b)(4) of the Federal Rules of Civil Procedure, which requires parties

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to seek leave of court for modifications to scheduling orders, and Local Rule 144, Plaintiff Arch

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Insurance Company (“Arch”) and Defendant Karrie Kindell (“Kindell”), through their respective

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attorneys of record, hereby submit the following stipulation and ex parte application to continue

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the Trial Date, Final Pre-Trial Conference Date, deadline for joint pre-trial statement, and trial

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brief deadlines.
Recitals

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1.

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On February 4, 2016, the Court issued a Status (Pretrial Scheduling) Order that set

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the following case deadlines: joint pretrial conference statement – June 24, 2016;

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Final Pre-Trial Conference -- July 15, 2016; Trial briefs – August 15, 2016 and

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Jury Trial Date – August 29, 206.

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STIPULATION AND EX PARTE APPLICATION TO CONTINUE TRIAL AND PRETRIAL CONFERENCE
DATES

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2.

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(“Sierra”), a Nevada corporation who is in forfeited status with the Secretary of

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State and unrepresented by counsel; and Carolyn Scarola, as trustee of the Dry

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The defendants currently in the case are Kindell; Sierra Equipment Rentals, Inc.

Creek Ranches Trust (“Trust”), who is also currently unrepresented.

3.

The undersigned parties agree that good cause exists for the continuance of
the above trial and pre-trial dates for the following reasons:
a. Arch’s motion for summary judgment against Sierra is currently pending
before the Court, and even if that motion does not resolve the case as to
Sierra, Sierra is a corporation unrepresented by counsel and is in a
forfeited status such that it cannot defend the action;
b. Kindell and Arch are in the process of executing a settlement agreement
that is expected to be accomplished shortly;
c. The only remaining party is the Trust, who is currently unrepresented by
counsel. Further, the Trust’s trustee, Ms. Scarola, who appeared in this
action, claims that she has resigned as trustee of the Trust. Furthermore,
the Trust’s assets have been determined by judgment to be assets of the
Chapter 7 Bankruptcy estate of Melvin Weir, in connection with
Adversary

Proceeding

number

13-03232,

in

Northern

District

Bankruptcy Court Case number 13-10048. See Attachment A to this
Stipulation and Affidavit.
d. A stipulation was not obtained from Sierra because it is out of business
and unrepresented. Counsel for Arch contacted Scarola and spoke to her
and her personal counsel to advise of the joint pre-trial conference
statement deadline and to discuss the case, but the undersigned was
advised that Ms. Scarola had resigned as trustee of the Trust. At this
point it is unclear as to the legal status of the Trust or its trustee, Scarola.

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-2STIPULATION AND EX PARTE APPLICATION TO CONTINUE TRIAL AND PRETRIAL CONFERENCE
DATES

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Stipulation and Ex Parte Application
Accordingly, Arch and Kindell hereby stipulate, agree and request the following
adjustment in the pre-trial schedule:
1. To continue the deadline for submission of joint pre-trial statements to at least August 5,
2016, by which time the undersigned parties expect Kindell to have been dismissed from
the action, obviating any further involvement of her in this Action;
2. To continue the pre-trial conference to at least August 29, 2016;
3. To continue the deadline for submission of trial briefs to a date to be determined at the
pre-trial conference; and
4. To vacate the current trial date and have a new trial date set at the pre-trial conference.
IT IS SO STIPULATED AND REQUESTED.

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Dated: June 29, 2016
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VARELA, LEE, METZ
& GUARINO, LLP

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By: /s/ Andrew Van Ornum 6/23/16
Andrew Van Ornum
Attorneys for Plaintiff
ARCH INSURANCE COMPANY

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Dated: June 29, 2016

LAW OFFICE OF ANDREW R. WIENER
By:

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/s/ Andrew Wiener 6/23/16
ANDREW R. WIENER, ESQ.
Attorneys for Defendant KARRIE
KINDELL

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-3STIPULATION AND EX PARTE APPLICATION TO CONTINUE TRIAL AND PRETRIAL CONFERENCE
DATES

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Affidavit of Andrew Van Ornum

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I, Andrew Van Ornum, declare:
1.

I am an attorney at law licensed to practice in the State of California and in the

United States District Court for the Eastern District of California. I am a partner in the law firm
of Varela, Lee, Metz & Guarino, LLP, attorneys of record for Plaintiff Arch Insurance Company
(“Arch”). I have personal knowledge of the facts set forth herein, unless otherwise indicated, and
if called as a witness, I could and would competently testify thereto.
2.

Counsel for Kindell and the undersigned have reached a settlement and are in

process of executing a settlement agreement.
3.

Attached as Attachment “A” is a copy of the judgment entered against the Trust

declaring that the Trust’s assets were assets of the Chapter 7 Bankruptcy estate of Melvin Weir, in
connection with Adversary Proceeding number 13-03232, in Northern District Bankruptcy Court
Case number 13-10048.
4.

I called former counsel for the Trust on June 21, 2016 to request status on the Ms.

Scarola and the Trust in connection with this litigation. Counsel was unavailable.
5.

I spoke to Carolyn Scarola on June 22, 2016. She advised that I must speak to

former counsel or her personal counsel. Her personal counsel called me and advised that Ms.
Scarola resigned as trustee of the Trust but that he did not represent her. He advised that former
counsel for the Trust may contact me next week.
6.

Given the status of the pending summary judgment motion against Sierra and

Sierra’s unrepresented and forfeited status, the Trust status and pending settlement progress, it
appears that a trial is unlikely and unnecessary as currently scheduled. Based on those same
considerations, it appears that no opposition will be filed to this application.

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I declare under penalty of perjury under the laws of the United States that the foregoing is
true and correct to the best of my knowledge, information and belief.

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By: ____/s/ Andrew Van Ornum 6/23/16_
Andrew Van Ornum

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ORDER
Having read and considered the parties’ Stipulation and Ex Parte Application,
IT IS HEREBY ORDERED THAT:

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1. The deadline for submission of joint pre-trial statements shall be August 12, 2016;

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2. The Final Pre-Trial Conference is set for August 26, 2016 at 10:00 a.m.; and

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3. The Trial Date of August 29, 2016 and the deadline for trial briefs are hereby vacated. A

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new trial date and associated deadlines shall be set at the Final Pre-Trial Conference.
IT IS SO ORDERED.
Dated: February 29, 2016

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UNITED STATES DISTRICT JUDGE

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