MYERS POWER PRODUCTS INC VS PIONEER POWER SOLUTIONS INC ET A

Tentative Rulings

Case Number: BC606546    Hearing Date: October 13, 2020    Dept: 1

The parties filed an identical ex parte application in Department 74 on October 7, 2020, which the court denied on October 8, 2020 noting “[t]he Court finds that it lacks jurisdiction to appoint a Judge Pro Tempore and directs counsel to file this ex parte application in Department 1 to be heard by the Supervising Judge.”

A litigant seeking ex parte relief must submit (1) the application; (2) a supporting declaration containing competent testimony based on personal knowledge making an affirmative factual showing of irreparable harm, immediate danger, or other statutory basis for the ex parte relief; (3) a declaration based on personal knowledge of the notice given, including the date, time, manner, and name of the party informed, the relief sought, any response (including whether opposition is expected) and that notice of where and when the application would be made was provided to that party no later than 10:00 a.m. the court day before the ex parte application absent specified exceptional circumstances; (4) a memorandum; and (5) a proposed order. (CRC 3.1201.) The ex parte application is supported by two declarations, a memorandum, and proposed order.

However, “[a]n applicant must make an affirmative factual showing in a declaration containing competent testimony based on personal knowledge of irreparable harm, immediate danger, or any other statutory basis for granting relief ex parte.” (CRC 3.1202(c).) Here, the declarations of Timothy M. Kowal and Thomas A. Vogele fail to demonstrate any exigent circumstances warranting ex parte relief. The Kowal declaration merely states he gave ex parte notice and describes the joint nature of the application. The Vogele declaration merely describes the parties’ ex parte application in Department 74 and the court’s order thereon.

Moreover, the parties’ stipulation is incomplete. The parties have not included evidence that Hon. Elizabeth R. Feffer (Ret.) consented to serve as the temporary judge, e.g. via a signed Consent and Certification, and did not include the required oath and certification. (CRC 2.831(b).)

The parties should submit their revised stipulation directly to Department 1 for consideration, without an accompanying ex parte application, and the court shall address their request in due course. (CRC 2.831(a).)

The ex parte application is DENIED.

Moving party to give notice.

Case Number: BC606546    Hearing Date: February 18, 2020    Dept: 74

BC606546 MYERS POWER PRODUCTS vs PIONEER POWER SOLUTIONS

Plaintiff’s Motion to Bifurcate

TENTATIVE RULING: The motion is DENIED. Plaintiff has agreed to have the court decide the equitable claims after the jury trial. The court will decide defendant Pioneer Power Solutions, Inc.’s alter ego status after trial on the legal issues because the jury’s determination may foreclose the need to determine alter ego liability.

Case Number: BC606546    Hearing Date: January 13, 2020    Dept: 74

BC606546 MYERS POWER PRODUCTS INC VS PIONEER POWER SOLUTIONS INC

Plaintiff’s Motion for Terminating Sanctions

TENTATIVE RULING: The motion is taken off calendar as stayed by the pending appeal.

This motion is based in large part of the argument that defendants failed to comply with the court’s order of November 26, 2019. Defendants have filed a notice of appeal of that order.

“[W]hether a matter is 'embraced' in or 'affected' by a judgment within the meaning of section 916 depends upon whether postjudgment trial court proceedings on the particular matter would have any impact on the 'effectiveness' of the appeal. If so, the proceedings are stayed….” (Franklin & Franklin v. 7-Eleven Owners for Fair Franchising (2000) 85 Cal. App. 4th 1168, 1173.)

Issuing a terminating sanction on the grounds, even partially on the grounds, that defendants failed to comply with the order is a particular matter which would have an impact on the effectiveness of the appeal. This motion is stayed pending the appeal.

The motion is taken off calendar.