Reynolds v. Allstate Insurance Company et al

Filing 33

ORDER Bench Trial set for 1/30/2012 08:30 PM before Hon. Susan Illston. Final Pretrial Conference set for 1/24/2012 03:30 PM. (tf, COURT STAFF) (Filed on 8/11/2011)

1
2
3
4
5
6
7
8

Stephen F. Von Till (State Bar No. 47217)
Ondrej Likar (State Bar No. 260199)
VON TILL & ASSOCIATES
152 Anza St., Suite 200
Fremont, California 94539
Telephone:
[phone]
Fax:
[phone]
Email:
[e-mail]
[e-mail]
Attorneys for Plaintiff
Gary Reynolds

9

UNITED STATES DISTRICT COURT

10
11

NORTHERN DISTRICT OF CALIFORNIA
GARY V. REYNOLDS

12

Plaintiff,

13
14
15
16
17

vs.
ALLSTATE INSURANCE COMPANY,
JANICE L. COSTANZO, and DOES ONE
through TWENTY, inclusive,
Defendants.

18

)
)
)
)
)
)
)
)
)
)
)
)

Case No.: CV 10 4893 SI
PLAINTIFF GARY REYNOLDS EX
PARTE MOTION TO CONTINUE
TRIAL AND OTHER PRETRIAL
DEADLINES (Civil L.R.s 6-3, 7-10, 40-1)

19

TO ALL PARTIES AND THEIR RESPECTIVE ATTORNEYS OF RECORD:

20

YOU ARE HEREBY NOTIFIED THAT plaintiff GARY REYNOLDS hereby moves,

21

on an ex parte basis, for a continuance of the trial date, currently scheduled to begin in the

22

above-entitled Court on November 14, 2011, as well as a continuance of the date reserved for a

23

summary judgment hearing (and related pleading schedule), currently scheduled to be heard in

24

the above-entitled Court on September 2, 2011.

25

Plaintiff has good cause to bring said ex parte Motion before the Court and for the Court

26

to grant said Motion, as set forth in this Motion and the accompanying supporting declaration of

27

Stephen Von Till, in that p

lead counsel has recently suffered medical setbacks

28
1
______________________________________________________________________________________
PLAINTIFF GARY REYNOLDS EX PARTE APPLICATION
Case No. CV 10 4893 SI
TO CONTINUE SUMMARY JUDGMENT HEARING

1

restricting his ability to represent Mr. Reynolds. (Declaration of Stephen V

2

Decl

¶4.)

3
4

agreed to a continuance per the terms in the attached stipulation. (Declaration of Ondrej Likar

5

( Likar Dec

¶5.)

6

Plaintiff requests a brief three-month continuance of the trial date to January 30, 2012, or

7

a date thereafter amendable to this Court and all parties, and a brief three month-continuance of

8

the summary judgment schedule as set forth in the attached stipulation. (Likar Decl. ¶5.)

9

This ex parte Motion is based upon this Notice, a supporting Memorandum of Points and

10

Authorities, the supporting Declarations Ondrej Likar and Stephen Von Till, and all pleadings,

11

records, and documents on file with the Court.

12
13

Dated: August 4, 2011

14

VON TILL & ASSOCIATES

15
/S/ Ondrej Likar
Ondrej Likar
Attorney for plaintiff Gary Reynolds

16
17
18

I.

INTRODUCTION

19

This suit arises from an underlying action entitled Costanzo v. Reynolds, Superior Court

20

of the State of California for the County of Alameda, Case No. VG08407660, filed on

21
22

injuries she sustained in a September 4, 2006, accident while riding as a passenger on a

23

motorcycle driven and owned by Gary Reynolds, the plaintiff in this action.

24

Defendant Allstate is defending Reynolds in the Underlying Action under a reservation

25

of rights to contest coverage based on a claimed exclusion in the policy. By this action,

26

Reynolds seeks a judicial declaration that the exclusion does not apply to Ms. Costanzo

27

injuries or that Allstate has waived, or is estopped, from relying on the exclusion.

28
2
______________________________________________________________________________________
PLAINTIFF GARY REYNOLDS EX PARTE APPLICATION
Case No. CV 10 4893 SI
TO CONTINUE SUMMARY JUDGMENT HEARING

1

II

MEMORANDUM OF POINTS AND AUTHORITIES

This motion is brought pursuant to Local Rules 6-3, 7-10, 40-1 and FRCP 6(b). On a

2
3
4

any act is required or allowed to be done.
Here, good cause exists to grant the continuance

5
6

unforeseen medical difficulties. The medical setbacks have restricted

7

represent plaintiff Gary Reynolds, as is detailed in the Von Till Declaration, herein incorporated

8

by reference.

9

As these health issues were unforeseen, requesting party is without fault and if a

10

continuance is not granted requesting party will suffer irreparable prejudice. (Von Till Decl.

11

¶10.)

12

III.

For the foregoing reasons and in the interests of justice, plaintiff respectfully requests

13
14

CONCLUSION

that the Court grant this ex-parte Motion to continue trial and related dates.

15
16

Dated: August 4, 2011

17
VON TILL & ASSOCIATES
18
19

/S/ Ondrej Likar
Ondrej Likar
Attorney for plaintiff Gary Reynolds

20
21
22

DECLARATION OF ONDREJ LIKAR IN SUPPORT OF EX PARTE MOTION

23

I, ONDREJ LIKAR, declare and state as follows:

24

1.

25

including the U.S. District Court for the Northern District of California, since December 2008.

26

2.

I am an attorney for plaintiff Gary Reynolds in the above-entitled action.

27

3.

I am familiar with the facts and circumstances in the current action and submit this

28

declaration in support of Gary Reynolds ex parte motion to continue.

I am an attorney licensed to practice before the Courts in the State of California,

3
______________________________________________________________________________________
PLAINTIFF GARY REYNOLDS EX PARTE APPLICATION
Case No. CV 10 4893 SI
TO CONTINUE SUMMARY JUDGMENT HEARING

1

4.

The reason for the requested continuance is the

2

Von Till, which has suffered in recent months and has

3

represent Gary Reynolds.

4

5.

5

to a continuance of the dates in this case per the terms in the stipulation attached hereto as

6

Exhibit A.

7

6.

8

in and oversee the deposition of plaintiff and the deposition of Janice Costanzo. Additionally,

Defendant Allstate

9
10

which pleadings will likely determine the outcome of this action. Without the oversight of Mr.

11

Von Till, plaintiff

12

7.

13

stipulation and court order:

14

The following previous modifications to deadlines have occurred in this action via

ORDER ADJUSTING CERTAIN DEADLINES AND HEARING Entered: 06/29/2011
which extended the time to complete the summary judgment briefing schedule and
discovery cutoff by 5 weeks.

15
16

ORDER EXTENDING DISCOVERY Entered: 04/18/2011 which extended the
discovery deadlines from May 12, 2011 to June 30, 2011.

17
18
19
20

8.

The effect of the requested time modification on this case will be a brief, three month

continuance of all upcoming deadlines, excluding the discovery cut-off as is detailed in the
Exhibit A.

21
22
23

I declare under the penalty of perjury under the laws of the United States that the
foregoing is true and correct of my own personal knowledge, except as to those matters stated
upon information and belief, and as to those matters I believe them to be true and correct.

24
25

Executed on August 4, 2011, at Fremont California.

26
27
28

/s/ Ondrej Likar
Ondrej Likar
Attorney for plaintiff Gary Reynolds
4
______________________________________________________________________________________
PLAINTIFF GARY REYNOLDS EX PARTE APPLICATION
Case No. CV 10 4893 SI
TO CONTINUE SUMMARY JUDGMENT HEARING

1

DECLARATION OF STEPHEN VON TILL IN SUPPORT OF EX PARTE MOTION

2

I, STEPHEN VON TILL, declare and state as follows:

3

1.

4

including the U.S. District Court for the Northern District of California.

5

2.

I am the attorney for plaintiff Gary Reynolds in the above-entitled action.

6

3.

I am familiar with the facts and circumstances in the current action and submit this

7

declaration in support of Gary Reynolds ex parte motion to continue.

8

4

I am an attorney licensed to practice before the Courts in the State of California,

I am currently totally disabled from legal work due to the following medical conditions:

9

Bulging discs in the neck with attendant severe right-sided radiculopathy which was

10

diagnosed within the last 30 days. This condition causes severe pain in my right arm

11

which makes it impossible to use a keyboard for more than a minute or two. (Attorney

12

Ondrej Likar is writing this declaration at my request.)

13

Significant fatigue and balance issues, increased risk of falling, residuals from a brain

14

hemorrhage in 2004 and a triple bypass heart surgery in October 2010.

15

Recent hospitalization over the weekend of July 29-30 as a result of a bacterial infection.

16

5.

Due to the above, I have undergone MRIs, CT scans (brain and abdomen), EKGs, and

17

other tests, all within the last 35 days.

18

6.

19

providers: Dr. Amit Jha, M.D., internist; Dr. Wu, physical medicine and rehabilitation; Dr.

20

Desai, neurologist; Dr. Timothy Tsoi, M.D., cardiologist; David Severson, RPT, Physical

21

therapist.

22

7.

23

providers to develop a treatment plan for my pain and fatigue.

24

8.

25

The prescriptions are still being adjusted by the physicians as to the type and dose because none

26

have been sufficiently effective.

27

9.

28

2010, superimposed on residuals from my brain hemorrhage. I am returning to cardiac therapy

I am currently receiving treatment for the above from the following healthcare

Over the next 30 days I have follow-up appointments with all of the above healthcare

Due to the above, I have been prescribed narcotic pain relievers and other medications.

I continue to suffer residual fatigue from the triple bypass heart surgery I had in October

5
______________________________________________________________________________________
PLAINTIFF GARY REYNOLDS EX PARTE APPLICATION
Case No. CV 10 4893 SI
TO CONTINUE SUMMARY JUDGMENT HEARING

1

within the next two weeks and physicians are developing a plan to diagnose and treat my

2

fatigue.

3

10.

4

with right-sided radiculopathy and their restriction on my ability to represent Mr. Reynolds was

5

unforeseen. If the Court fails to grant plaintiff a continuance, plaintiff will suffer irreparable

6

prejudice to his case, as there is no other attorney ready and experienced to take over this

7

matter.

8

11.

9

time for my healthcare providers to develop a treatment plan for my pain and fatigue and to

10

The development of the recent medical setbacks involving severe cervical disc bulges

I anticipate that a three month continuance of the dates in this action will be sufficient

relieve same such that I may competently represent Gary Reynolds.

11
12
13
14

I declare under the penalty of perjury under the laws of the United States that the
foregoing is true and correct of my own personal knowledge, except as to those matters stated
upon information and belief, and as to those matters I believe them to be true and correct.
Executed on August 4, 2011, at Fremont California.

15
16
17
18

/s/ Stephen Von Till
Stephen Von Till
Attorney for plaintiff Gary Reynolds

19
20
21
22
23
24
25
26
27
28
6
______________________________________________________________________________________
PLAINTIFF GARY REYNOLDS EX PARTE APPLICATION
Case No. CV 10 4893 SI
TO CONTINUE SUMMARY JUDGMENT HEARING

1

CERTIFICATE OF SERVICE

2

I am employed in the City of Fremont, County of Alameda, California in the office of a
member of the bar of this Court at whose direction the following service was made. I am over
the age of eighteen years and not a party to the within action. My business address is Von Till
& Associates, 152 Anza Street, Suite 200, Fremont, California, 94539.

3
4
5
6

On this date I served the below listed documents on all parties in this action by placing
true copies thereof in sealed envelopes addressed as shown below.
DOCUMENTS

7
8
9

PLAINTIFF GARY REYNOLDS
OTHER PRETRIAL DEADLINES (Civil L.R.s 6-3, 7-10, 40-1)
ADDRESSES

10
11
12
13
14
15
16
17
18

Michael Barnes
Sonia Martin
Cynthia Liu
SNR DENTON US, LLP
2121 N. California Blvd., Suite 800
Walnut Creek, California 94596
XXX (U.S. MAIL SERVICE) I placed each such sealed envelope, with postage thereon fully
prepaid for first-class mail, for collection and mailing at Von Till & Associates in Fremont,
California, following ordinary business practices. I am personally familiar with the practice of
the law firm for collection and processing of correspondence, said practice being that in the
ordinary course of business, correspondence is deposited with the United States Postal Service
the same day as if placed for collection.

19
20

I declare under penalty of perjury under the laws of the United States that the foregoing
is true and correct. Executed this day at Fremont, California.

21
22
23

/s/ Sheryl Klingenfuss____
Sheryl Klingenfuss

Dated: August 4, 2011

24
25
26
27
28
7
______________________________________________________________________________________
PLAINTIFF GARY REYNOLDS EX PARTE APPLICATION
Case No. CV 10 4893 SI
TO CONTINUE SUMMARY JUDGMENT HEARING

EXHIBIT A

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16

Stephen F. Von Till (State Bar No. 47217)
Ondrej Likar (State Bar No. 260199)
VON TILL & ASSOCIATES
152 Anza St., Suite 200
Fremont, California 94539
Telephone:
[phone]
Fax:
[phone]
Email:
[e-mail]
[e-mail]
Attorneys for Plaintiff
GARY REYNOLDS
Michael Barnes (State Bar No. 121314)
Sonia Martin (State Bar No. 191148)
Cynthia Liu (State Bar No. 263270)
SNR DENTON US LLP
2121 N. California Blvd., Suite 800
Walnut Creek, California 94596
Telephone:
[phone]
Facsimile:
[phone]
Email:
[e-mail]
[e-mail]
[e-mail]
Attorneys for Defendant
ALLSTATE INSURANCE COMPANY

17

UNITED STATES DISTRICT COURT

18

NORTHERN DISTRICT OF CALIFORNIA

19

GARY V. REYNOLDS

20

Plaintiff,

21
vs.

22

24

ALLSTATE INSURANCE COMPANY,
JANICE L. COSTANZO, and DOES ONE
through TWENTY, inclusive,

25

Defendants.

23

26
27

Case No.: CV 10 4893 SI
STIPULATION AND [PROPOSED]
ORDER CONTINUING TRIAL AND
OTHER PRETRIAL DEADLINES

///

28

)
)
)
)
)
)
)
)
)
)
)
)

///
1
______________________________________________________________________________________
Case No. CV 10 4893 SI
STIPULATION AND [PROPOSED] ORDER CONTINUING
TRIAL AND OTHER PRETRIAL DEADLINES

The parties, by and through their respective counsel of record, hereby stipulate and agree as

1
2

follows and respectfully request that the Court approve and give effect to their stipulation:

WHEREAS the Court has set the following deadlines and hearing schedule:

3
4

Expert and Non-Expert Discovery cutoff:

August 4, 2011

5

P

August 12, 2011

6

Defendant's 1st Opp./X-Mo.:

August 26, 2011

7

P

September 9, 2011

8

Defendant's Reply:

September 16, 2011

9

Summary Judgment Hearing:

October 7, 2011

10

Trial Papers Due:

October 18, 2011

11

Pretrial Conference:

November 1, 2011

12

Trial Date:

November 14, 2011

eply/Opp.:

IT IS HEREBY STIPULATED AND AGREED that the trial and related pretrial

13
14

s 1st Summary Judgment filing:

deadlines should be continued for approximately three months as set forth below:
Expert and Non-Expert Discovery cutoff:

15

August 4, 20111
November 7, 2011

16
Defendant's 1st Opp./X-Mo.:

17

November 21, 2011

s Reply/Opp.:

18
19

Defendant's Reply:

20

December 2, 2011
December 9, 2011
13
January 2, 2012 (or a date amenable

Summary Judgment Hearing

21
_______________________

22

18
January 9, 2012 (or a date amenable

23
Trial Papers Due:
24
25

_______________________

26
27
28

1

With the exception of the deposition of Gary Reynolds and Janice Costanzo which are to be completed prior to
November 4, 2011.

2
______________________________________________________________________________________
Case No. CV 10 4893 SI
STIPULATION AND [PROPOSED] ORDER CONTINUING
TRIAL AND OTHER PRETRIAL DEADLINES

24
January 17, 2012 (or a date amenable

1
Pretrial Conference:

2
3

_______________________

4
5
Trial Date:

6

January 30, 2012 (or a date amenable
, not to

7
8

conflict beginning on February 14,
2012)

9

_______________________

10
IT IS SO STIPULATED.

11
12
13

FILER S ATTESTATION

14

Pursuant to General Order No. 45, section X(B) regarding signatures, I attest under

15

penalty of perjury that the concurrence in the filing of this document has been obtained from its

16

signatories.

17

Dated: August 4, 2011
BY

18

/S/
ONDREJ LIKAR

19
Respectfully Submitted,

20
21
22

Dated: August 4, 2011

VON TILL & ASSOCIATES

23
24

BY

25
26

/S/
ONDREJ LIKAR

Attorney for Plaintiff
GARY V. REYNOLDS

27
28
3
______________________________________________________________________________________
Case No. CV 10 4893 SI
STIPULATION AND [PROPOSED] ORDER CONTINUING
TRIAL AND OTHER PRETRIAL DEADLINES

1
2

Dated: August 4, 2011

SNR DENTON US LLP

3
4

BY

5

/S/
CYNTHIA LIU

Attorneys for Defendant
ALLSTATE INSURANCE COMPANY

6
7
8

IT IS SO ORDERED.

9
10

10
Dated August ___________, 2011

11

__________________________________
The Hon. Susan Illston

12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
4

______________________________________________________________________________________
Case No. CV 10 4893 SI
STIPULATION AND [PROPOSED] ORDER CONTINUING
TRIAL AND OTHER PRETRIAL DEADLINES