Transbay Auto Service, Inc. v. Chevron Corporation

Filing 123

ORDER Jury Selection set for 9/4/2012 08:30 AM in Courtroom 10, 19th Floor, San Francisco before Hon. Susan Illston. Jury Trial set for 9/4/2012 08:30 AM in Courtroom 10, 19th Floor, San Francisco before Hon. Susan Illston.. Signed by Judge Judge Illston on 3/9/12. (tfS, COURT STAFF) (Filed on 3/9/2012)

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THOMAS P. BLEAU (State Bar No. 152945)
2 MARTIN R. FOX (State Bar No. 155783)
SAMUEL T. REES (State Bar No. 58099)
3 MEGAN CHILDRESS (State Bar No. 266926)
BLEAU FOX
4 A Professional Law Corporation
3575 Cahuenga Boulevard West, Suite 580
5 Los Angeles, CA 90068
Telephone: [phone]
6 Facsimile: [phone]
Email: [e-mail]
[e-mail]
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8 Attorneys for Plaintiff
Transbay Auto Service, Inc.
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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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TRANSBAY AUTO SERVICE, INC.,
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Plaintiff,
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vs.
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CHEVRON U.S.A. INC.
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Defendant.
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Case No. 3:09-CV-04932 SI
STIPULATION, DECLARATION OF
SAMUEL T. REES AND [PROPOSED]
ORDER CONTINUING TRIAL BECAUSE
OF UAVAILABILITY OF WITNESS
Trial Date:
Time:
Judge:
Location:

March 19, 2012
8:30 a.m.
Hon. Susan Illston
Courtroom 10, 19th Floor
450 Golden Gate Avenue
San Francisco, California

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This matter is currently set for trial on March 19, 2012, at 8:30 a.m. One of the central issues

22 to be tried involves the fair market value of Plaintiff’s property. Plaintiff has designated Andrew C.
23 Plaine has his sole real estate appraiser expert to testify at trial.
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Following this Court’s setting of the March 19, 2012 trial date, Plaintiff’s counsel learned

25 that Mr. Plaine was just diagnosed with colon cancer and was going to meet with his oncologist to
26 establish an immediate treatment plan. Plaintiff’s counsel immediately notified Defense counsel and
27 this Court’s clerk of this news. Subsequently, Plaintiff’s counsel was advised that Mr. Plaine’s
28 oncologist recommended that Mr. Plaine immediately commence chemotherapy (which in fact
- 1 Bleau Fox

STIPULATION, DECLARATION OF SAMUEL T. REES AND [PROPOSED] ORDER CONTINUING TRIAL
BECAUSE OF UAVAILABILITY OF WITNESS

1 started on March 5, 2012), that the chemotherapy continue for approximately 6 weeks, that Mr.
2 Plaine then spend the following 6 to 8 weeks recovering from chemotherapy, that Mr. Plaine then
3 undergo surgery on his colon and finally that Mr. Plaine anticipate that his recovery time from the
4 surgery will be approximately 4 weeks during which time he will need to limit his activities.
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After consultation with Defense counsel, an agreement has been reached to respectfully

6 request that this Court continue the current trial until Mid-August, 2012, as this Court’s calendar
7 permits. Plaintiff’s counsel has learned that it is unlikely that Mr. Plaine will be in a condition to
8 testify during the time he is recovering from chemotherapy and believes that it would not be
9 appropriate for Mr. Plaine to testify while he is undergoing chemotherapy. Continuance of the trial
10 should alleviate the need for Plaintiff to designate a replacement expert witness or for the parties to
11 undergo the expense and discovery processes that such a replacement designation would entail.
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For the foregoing reasons, the parties stipulate and request that the current trial date be

13 continued.
14 Dated: March 8, 2012
BLEAU/FOX A P.L.C.
THOMAS P. BLEAU
SAMUEL T. REES

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By /s/ Samuel T. Rees
Samuel T. Rees

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Attorneys for Plaintiff
Transbay Auto Service, Inc.

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20 Dated: March 8, 2012
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GLYNN & FINLEY, LLP
ROBERT C. PHELPS

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By /s/ Robert C. Phelps
Robert C. Phelps

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Attorneys for Defendant
Chevron U.S.A. Inc.

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- 2 Bleau Fox

STIPULATION, DECLARATION OF SAMUEL T. REES AND [PROPOSED] ORDER CONTINUING TRIAL
BECAUSE OF UAVAILABILITY OF WITNESS

DECLARATION OF SAMUEL T. REES

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2 I, SAMUEL T. REES, hereby state under penalty of perjury as follows:
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I am an attorney licensed to practice before this Court and all courts of the states of

4 California and Louisiana, among other courts. I am Of Counsel to the law firm of Bleau Fox, a PLC,
5 counsel for Plaintiff Transbay Auto Service, Inc. (“Transbay”). I am the lead trial counsel for
6 Transbay. I have personal knowledge of the matters set forth herein and submit this declaration in
7 support of Transbay’s request to continue the trial date in this matter.
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On February 9, 2012, this Court conducted a telephonic Case Management Conference

9 regarding the then scheduled March 5, 2012 trial. During the conference, the Court indicated an
10 intention to continue the trial until March 19, 2012, in light of a then pending trial. I participated in
11 that conference along with Robert Phelps, counsel for Defendant Chevron U.S.A. Inc. (“Chevron”)
12 in this matter. Both Mr. Phelps and I indicated our intention of communicating with our respective
13 clients and witnesses regarding this trial continuance and any problems resulting from such a
14 continuance.
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On February 15, 2012, I received a call from Andrew C. Plaine, Transbay’s designated real

16 estate appraiser expert witness, in response to a message I had left for him. Mr. Plaine advised me
17 that he had just been notified by his doctor that he had been diagnosed with colon cancer and should
18 undergo immediate treatment. Mr. Plaine stated that he had an appointment the following day with
19 his doctor to schedule his treatment. At the time, Mr. Plaine stated that he believed he would be
20 starting chemotherapy shortly and undergoing such treatment for approximately 6 to 8 weeks.
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Following receipt of this information, I immediately sent an email to Mr. Phelps and this

22 Court’s clerk alerting them to this issue and suggesting that Transbay would be seeking a
23 continuance of the trial to a date in May. In response to this email, Mr. Phelps responded that he
24 would stipulate to a continuance and we both agreed to discuss availability with all witnesses during
25 the May period.
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The following week I had a second communication with Mr. Plaine. He advised me that

27 based upon his doctor’s recommendation he would be undergoing surgery after he recovered from
28 chemotherapy. At the time, I had very little information concerning the recovery process from such
- 3 Bleau Fox

STIPULATION, DECLARATION OF SAMUEL T. REES AND [PROPOSED] ORDER CONTINUING TRIAL
BECAUSE OF UAVAILABILITY OF WITNESS

1 chemotherapy and we discussed the possibility of seeking a continuance of the trial such that the trial
2 would occur prior to Mr. Plaine’s anticipated surgery. Since that communication, I have learned that
3 the recovery from such chemotherapy is arduous and lengthy. After further discussions with Mr.
4 Phelps, we were and are both of the view that a continuance until a date after Mid-August, 2012, was
5 more prudent in light of Mr. Plaine’s anticipated treatment. On March 7, 2012, I again
6 communicated with Mr. Plaine and he agreed that it would be more prudent to request a continuance
7 of the trial until a date after Mid-August, 2012. Mr. Plaine reported to me that he started
8 chemotherapy on March 5, 2012.
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I declare under penalty of perjury under the laws of the State of California that the foregoing

10 is true and correct. Executed this 8th day of March, 2011, in New Orleans, Louisiana.
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/s/ Samuel T. Rees

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Samuel T. Rees, declarant

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- 4 Bleau Fox

STIPULATION, DECLARATION OF SAMUEL T. REES AND [PROPOSED] ORDER CONTINUING TRIAL
BECAUSE OF UAVAILABILITY OF WITNESS

[PROPOSED] ORDER

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Based upon the parties’ stipulation and for the reasons set forth in the Declaration of Samuel

3 T. Rees, the trial in this matter, currently set for March 19, 2012, at 8:30 a.m., is hereby continued to
9/4
8:30 a
4 ______________, 2012, at ______ _.m.
5 IT IS SO ORDERED.
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6 Dated: March 9 2012.
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Hon. Susan Illston

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U.S. District Judge

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- 5 Bleau Fox

STIPULATION, DECLARATION OF SAMUEL T. REES AND [PROPOSED] ORDER CONTINUING TRIAL
BECAUSE OF UAVAILABILITY OF WITNESS

DECLARATION OF SAMUEL T. REES

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2 I, SAMUEL T. REES, hereby state under penalty of perjury as follows:
3

I am an attorney licensed to practice before this Court and all courts of the states of

4 California and Louisiana, among other courts. I am Of Counsel to the law firm of Bleau Fox, a PLC,
5 counsel for Plaintiff Transbay Auto Service, Inc. (“Transbay”). I am the lead trial counsel for
6 Transbay. I have personal knowledge of the matters set forth herein and submit this declaration in
7 support of Transbay’s request to continue the trial date in this matter.
8

On February 9, 2012, this Court conducted a telephonic Case Management Conference

9 regarding the then scheduled March 5, 2012 trial. During the conference, the Court indicated an
10 intention to continue the trial until March 19, 2012, in light of a then pending trial. I participated in
11 that conference along with Robert Phelps, counsel for Defendant Chevron U.S.A. Inc. (“Chevron”)
12 in this matter. Both Mr. Phelps and I indicated our intention of communicating with our respective
13 clients and witnesses regarding this trial continuance and any problems resulting from such a
14 continuance.
15

On February 15, 2012, I received a call from Andrew C. Plaine, Transbay’s designated real

16 estate appraiser expert witness, in response to a message I had left for him. Mr. Plaine advised me
17 that he had just been notified by his doctor that he had been diagnosed with colon cancer and should
18 undergo immediate treatment. Mr. Plaine stated that he had an appointment the following day with
19 his doctor to schedule his treatment. At the time, Mr. Plaine stated that he believed he would be
20 starting chemotherapy shortly and undergoing such treatment for approximately 6 to 8 weeks.
21

Following receipt of this information, I immediately sent an email to Mr. Phelps and this

22 Court’s clerk alerting them to this issue and suggesting that Transbay would be seeking a
23 continuance of the trial to a date in May. In response to this email, Mr. Phelps responded that he
24 would stipulate to a continuance and we both agreed to discuss availability with all witnesses during
25 the May period.
26

The following week I had a second communication with Mr. Plaine. He advised me that

27 based upon his doctor’s recommendation he would be undergoing surgery after he recovered from
28 chemotherapy. At the time, I had very little information concerning the recovery process from such
- 3 Bleau Fox

STIPULATION, DECLARATION OF SAMUEL T. REES AND [PROPOSED] ORDER CONTINUING TRIAL
BECAUSE OF UAVAILABILITY OF WITNESS

1 chemotherapy and we discussed the possibility of seeking a continuance of the trial such that the trial
2 would occur prior to Mr. Plaine’s anticipated surgery. Since that communication, I have learned that
3 the recovery from such chemotherapy is arduous and lengthy. After further discussions with Mr.
4 Phelps, we were and are both of the view that a continuance until a date after Mid-August, 2012, was
5 more prudent in light of Mr. Plaine’s anticipated treatment. On March 7, 2012, I again
6 communicated with Mr. Plaine and he agreed that it would be more prudent to request a continuance
7 of the trial until a date after Mid-August, 2012. Mr. Plaine reported to me that he started
8 chemotherapy on March 5, 2012.
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I declare under penalty of perjury under the laws of the State of California that the foregoing

10 is true and correct. Executed this 8th day of March, 2011, in New Orleans, Louisiana.
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/s/ Samuel T. Rees

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Samuel T. Rees, declarant

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- 4 Bleau Fox

STIPULATION, DECLARATION OF SAMUEL T. REES AND [PROPOSED] ORDER CONTINUING TRIAL
BECAUSE OF UAVAILABILITY OF WITNESS

[PROPOSED] ORDER

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Based upon the parties’ stipulation and for the reasons set forth in the Declaration of Samuel

3 T. Rees, the trial in this matter, currently set for March 19, 2012, at 8:30 a.m., is hereby continued to
4 ______________, 2012, at ______ _.m.
5 IT IS SO ORDERED.
6 Dated: March , 2012.
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Hon. Susan Illston

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U.S. District Judge

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STIPULATION, DECLARATION OF SAMUEL T. REES AND [PROPOSED] ORDER CONTINUING TRIAL
BECAUSE OF UAVAILABILITY OF WITNESS