Lozano v. Cabrera et al

Filing 44

MINUTE ORDER: Denying 35 Ex Parte MOTION to Continue CMC scheduling dates. Signed by Magistrate Judge Ruben B. Brooks on 2/5/2015. (knb)

MINUTES OF THE UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
LOZANO v. CABRERA

Case No. 14cv0333 JAH(RBB)
Time Spent: __

HON. RUBEN B. BROOKS

CT. DEPUTY VICKY LEE

Rptr.

Attorneys
Plaintiffs
Mark Potter
Sabal Masanque
PROCEEDINGS:

Defendants
Bill Adams

In Chambers

In Court

Telephonic

On January 28, 2015, Defendants Julio Yee Cabrera and Enrique Wong Vazquez
filed an "Ex Parte Application of Defendants Cabrera and Vasquez, and
Application for Continuance of Case Management Conference Dates Pending
Ruling on De[f]endants' Motion to Dismiss - Time Sensitive [ECF No. 35]" (the
"Ex Parte Application"). There, Defendants request to extend "all remaining
dates set forth in the Court's Case Management Conference Order Regulating
Discovery and Other Pre-trial Proceedings . . . for 60 days of the date that
a ruling issues on Defendants' Motion to Dismiss." (Ex Parte Appl. 2, ECF
No. 35.)
Plaintiff Enrique Lozano filed an "Opposition to the Defense Ex Parte
Application to Continue the CMC and Supplemental Filings [ECF No. 36]" on
January 29, 2015. Defendants, on January 30, 2015, filed a "Reply in Support
of Ex Parte Application of Defendants Cabrera and Vasquez for Continuance of
CMC Dates Pending Ruling on De[f]endants' Motion to Dismiss - Time Sensitive
[ECF No. 38]."
"Ex parte motions are rarely justified . . . ." Mission Power
Eng'g Co. v. Cont'l Cas. Co., 883 F. Supp. 488, 490 (C.D. Cal.
1995). Often times, ex parte requests merely seek to bypass "the framework
of the rules" and "ask the court to hold a hearing urgently." Id. Filing an
ex parte motion requires the court to "drop[] everything except other urgent
matters to study the papers." Id. at 491. A movant bringing an ex parte
application has the burden to show that relief is warranted.
First, the evidence must show that the moving party's
cause will be irreparably prejudiced if the underlying
motion is heard according to regular noticed motion
procedures. Second, it must be established that the
moving party is without fault in creating the crisis that
requires ex parte relief, or that the crisis occurred as
a result of excusable neglect.

LOZANO v. CABRERA
February 5, 2015
Page 2

Case No. 14cv0333 JAH(RBB)

Id. at 492. "[M]erely showing that trial is fast approaching . . . is
insufficient to justify ex parte relief. The moving party must also show
that it used the entire discovery period efficiently and could not have, with
due diligence, sought to obtain the discovery earlier in the discovery
period." Id. at 493.
Here, Defendants have failed to prove that they should be allowed to
bypass the regular noticed motion procedure. "'Ex parte applications are not
intended to save the day for parties who have failed to present requests when
they should have.'" Id. (quoting In re Intermagnetics America, Inc., 101
B.R. 191, 193 (C.D. Cal. 1989)). Accordingly, the Ex Parte Application [ECF
No. 35] is DENIED. If the Defendants believe it is appropriate, they may
file a regularly noticed motion.

DATE:
cc:

February 5, 2015

Judge Houston
All Parties of Record

I:\Chambers Brooks\CASES\1983\LOZANO0333\Minute06.wpd

IT IS SO ORDERED:

_________________________
Ruben B. Brooks,
U.S. Magistrate Judge
INITIALS: VL (mg) Deputy