Free Affidavit in Support of Motion - District Court of California - California

Case 3:07-cv-02894-SI

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Xavier A.M. Lavoipierre (SBN 132798) LAW OFFICE OF XAVIER A.M. LAVOIPIERRE 809 Broadway, Suite 5 P.. O. Box 256 Sonoma, CA 95476-0256 Tel: (707)938-1611 Fax: (707)938-4223 Attorney for Defendants SAN RAFAEL TOUCHLESS CAR WASH, PATTY SHIMEK AND MIKE SMITH Thomas I. Saberi (SBN 169652) LAW OFFICES OF WILLIAM H. PAYNTER 1045 Airport Blvd, Suite 12 South San Francisco, CA 94080 Tel: (650)588-2428 Fax: (650)873-7046 Attorney for Defendants SHIM, INC., CANADIAN-AMERICAN OIL CO., BERKELEY TOUCHLESS CAR WASH ROY SHIMEK AND MIKE SHIMEK

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UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA

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REMIGIO EDMUNDO ALARCON, JACK ) Case No.: C 07- 02894 SI FRAHM, MARTIN MONROY, AND NILTON ) SANTIAGO SIGUENZA, ) SUPPLEMENTAL DECLARATION OF XAVIER A.M. LAVOIPIERRE IN SUPPORT Plaintiffs , ) OF DEFENDANTS' MOTION FOR A STAY OF THE ORDER TO REMAND THIS ACTION v. ) TO STATE COURT SHIM, INC., CANADIAN-AMERICAN OIL ) CO., SAN RAFAEL TOUCHLESS CAR ) WASH, BERKELEY TOUCHLESS CAR ) WASH, MIKE SHIMEK, ROY SHIMEK AND ) DOES 1 THROUGH 100, INCLUSIVE , ) Date: December 14, 2007 9:00 a.m. Time: Defendants. ) Courtroom : Hon. Susan Illston
) )

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Case No.: C 07-02894 SI
SUPPLEMENTAL DECLARATION OF XAVIER A.M. LAVOIPIERRE IS SUPPORT OF DEFENDANTS' MOTION FOR A STAY OF THE ORDER TO REMAND THIS ACTION TO STATE COURT 1

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I, Xavier A.M. Lavoipierre, declare: 1. I am an attorney at law duly licensed to practice before the courts of the State of California, admitted to practice before the United States District Court, Northern District of

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California, and am attorney of record for defendants PATTY SHIMEK, MIKE SMITH and SAN RAFAEL TOUCHLESS CAR WASH. I have personal knowledge of the facts set forth in this declaration, and if called as a witness I could and would testify competently thereto. This declaration is submitted in support of Defendants' Motion for a Stay of the Order to Remand This Action to State Court.

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2. I attended the case management conference in this matter in Alameda County Superior Court on December 3, 2007. At the case management conference the court assigned this matter a trial date of March 10, 2008. A true and correct copy of the Case Management Order resulting from that conference is attached hereto as Exhibit A, and is incorporated herein by reference.

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3. The impending trial date in state court in this matter adds to the urgency of issuing a
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stay of this court's Order to Remand, presently on appeal to the Ninth Circuit Court of Appeals. Defendants urge this Court to consider the consequences of allowing this matter to proceed to trial in state court prior to receiving a ruling by the Ninth Circuit Court of Appeals on Defendants' appeal. I declare under penalty of perjury under the laws of the State of California that the foregoing

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is true and correct. Executed at Sonoma, California, this 5th day of December, 2007.

/s/ Xavier A.M. Lavoipierre

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Case No.: C 07-02894 SI SUPPLEMENTAL DECLARATION OF XAVIER A.M. LAVOIPIERRE IS SUPPORT OF DEFENDANTS' MOTION FOR A STAY OF THE ORDER TO REMAND THIS ACTION TO STATE COURT 2

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EXHIBIT A

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Law Offices of Albert A Erkel, Jr. LAW OFFICES OF WILLIAM H. Attn: Erkel Jr., Albert A. PAYNTER
3300 Douglas Boulevard, Suite 125 Attn: Saberi, Thomas I. Roseville, CA 95661 1045 Airport Blvd., Suite 12 South San Francisco , CA 94080

Superior Court of California , County of Alameda George E. McDonald Hall of Justice
Alarcon
Plaintiff/Petitioner(s)

No. RG05194007

vs.
Shim, Inc.
Defendant/Respondent(s) (Abbreviated Title)

Case Management Order Complaint - Other Employment

ORDER re : CASE MANAGEMENT & TRIAL SETTING ORDER WITH NOTICE OF TRIAL The Court has ordered the following at the conclusion of a judicially supervised Case Management Conference. ALTERNATIVE DISPUTE RESOLUTION (ADR) The case is referred to Private ADR, said process to be completed by 01/15/2008. Time to complete mediation may be extended upon stipulation of all parties participating in the mediation. The parties agree that defendants shall pay the cost of mediation.
Mr. Laboipierre shall advise the Court in writing no later than 12/17/2007 of the identity of the neutral selected.

PRETRIAL CONFERENCE
A Pretrial Conference is scheduled for 02/29/2008 at 09:00 AM in Dept. 301. The parties are advised that the Pretrial Conference is NOT a settlement conference. All of the deadlines set forth in Rule 3.35 of the Local Rules of the Alameda Superior Court, which are available on the Court's website at

wwww.alameda.courts.ca.gov, are applicable to the Pretrial Conference. TRIAL SETTING ORDERS The Court makes the following trial setting orders: Trial Date: 03/10/2008 at 09:30 AM in Dept. 301. Estimated length of trial: 14 court days. The Court notes that Mr. Saberi indicates in his Case Management Statement that he is not available until May 2008 due to trial obligations. If Mr. Saberi is engaged in trial on 03/10/2008 in another case in which the trial date was set prior to the date of today's order, the Court will continue this case to the next available trial date.

Order

Case 3:07-cv-02894-SI
TRIAL SETTING ORDERS

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The parties are ordered to comply with the Standing Pre-Trial Orders for Civil Cases, Local Rule of Court 3.35. Jury is demanded by plaintiff(s) Defendant(s) NOTICES Clerk is directed to serve endorsed-filed copies of this order, with proof of service, to counsel and to self-represented parties of record by mail.
Any delay in the trial, caused by non-compliance with any order contained herein, shall be the subject of sanctions pursuant to CCP 177.5.

Dated: 12/03/2007

Gi ^o Judge Ronni MacLaren

Order

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SHORT TrI'LE: CASE NUMBER:

Alarcon VS Shim, Inc. RG05194007
ADDITIONAL ADDRESSEES

Law Office of Zavier A. M. Lavoipierre Attn: Laboipierre, Xavier A. M.

809 Broadway, Suite 5 P. O. Box 256 Sonoma, CA 95476

Boyd E. Burnison Attn: Burnison, Boyd E. P.O. Box 743

Diablo, CA 94528

Order

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Superior Court of California, County of Alameda George E. McDonald Hall of Justice

Case Number: RGO5194007 Case Management Conference Order of 12/03/2007

DECLARATION OF SERVICE BY MAIL
I certify that I am not a party to this cause and that a true and correct copy of the foregoing document was mailed first class, postage prepaid, in a sealed envelope, addressed as shown on the foregoing document or on the attached, and that the mailing of the foregoing and execution of this certificate occurred at
2233 Shoreline Drive, Alameda, California. Executed on 12/03/2007.

Executive Officer / Clerk of the Superior Court

Deputy Clerk