Mark Jacobs et al vs William W Nicholson et al

Case Number

20CV03026

Case Type

Hearing Date / Time

Mon, 03/10/2025 - 10:00

Nature of Proceedings

Motion: Summary Adjudication

Tentative Ruling

Pending before the court is defendants’ motion for summary adjudication of the third through twelfth causes of action against them, on the ground that defendant Nicholson has a claim against Irwin Jacobs that would more than offset the Jacobs claims against defendants that are being asserted in those causes of action.

Plaintiffs’ initial opposition to the motion was accompanied by the declaration of Dave Mahler, an accountant and officer of various of Jacobs’ corporate entities, and longtime business advisor to Jacobs and to those entities.

Defendants’ reply papers interposed various evidentiary objections to Mr. Mahler’s declaration testimony and exhibits to the declaration, and based in part thereon contended that the opposition was without evidentiary support, requiring that the motion be granted.

In apparent response to the evidentiary objections made by defendants in their reply papers, plaintiffs filed a supplemental declaration of Dave Mahler.

Defendants have objected to the Court’s consideration of that declaration, contending that the declaration is an impermissible sur-reply filed without leave of court, and “unfairly rebuts Defendants’ reply arguments, denying Defendants the ability to adequately respond.”

In light of the existence of authority holding that it is an abuse of discretion for a trial court to refuse to permit a party opposing a motion for summary judgment to remedy perceived evidentiary failings with respect to its evidentiary submissions, if it believes it can do so, before ruling against them on a dispositive motion as a result of those evidentiary failings (See Ambriz v. Kelegian (2007) 146 Cal.App.4^th 1519, 1527-1528), the Court intends to consider the supplemental Mahler declaration in ruling on the motion.

Because defendants have claimed that doing so would violate their right to respond to the declaration, the Court will continue the hearing on the motion to March 24, 2025. No later than noon on March 17, 2025, defendants may file a brief response to the supplemental Mahler declaration. Any such response filed shall be limited to and respond solely to that declaration. To the extent that this Court believes that any information submitted in that response goes beyond this directive, it will disregard any other information set forth in the response.