Lemperle v. Avis Rent-A-Car Systems

1 || JOSH COLE AICKLEN Nevada Bar No. 007254 || [email protected] STEPHEN L. TITZER || Nevada Bar No. 008289 [email protected] || LEWIS BRISBOIS BISGAARD & SMITH LLP 6385 S. Rainbow Boulevard, Suite 600 || Las Vegas, Nevada 89118 TEL.: 702.893.3383 || FAX: 702.893.3789 Attorneys for Defendant || VINCENT TJOTA 10 UNITED STATES DISTRICT COURT 11 DISTRICT OF NEVADA || REBECCA LEMPERLE, individually, CASE NO.: 2:18-cv-00202-JCM-VCF 13 Plaintiff, 14 Vs. || VINCENT TJOTA, individually; DOES I-X, and ROE CORPORATIONS I-X, inclusive, Defendants.

18 DEFENDANT'S MOTION TO CONTINUE TRIAL 19 (SIXTH REQUESTED EXTENSION) 20 COMES NOW, Defendant VINCENT TJOTA (“Defendant”), by and through his counsel, Josh Cole Aicklen, Esq. and Stephen L. Titzer, Esq. of LEWIS BRISBOIS BISGAARD & SMITH LLP, and moves this Court to continue the jury trial for the completion of the Defendant's children’s vaccinations before international travel and travel related restrictions, pursuant to LR IA 6-1 and FRCP 43.

97 || // 781)/"/

SMITH LLP 4859-7482-7344.1 Case No.: 2:18-cv-00202-JCM-VCF Lemperle v. Tjota 1 This Motion is based upon the following Memorandum of Points and Authorities, ||the attached exhibits, the affidavit of counsel attached hereto, the papers and pleadings || on file herein and oral argument at the time of the hearing.

4 DATED this day of February, 2023.

5 Respectfully Submitted, 6 LEWIS BRISBOIS BISGAARD & SMITH LLP By /s/ Josh Cole Aicklen 9 JOSH COLE AICKLEN Nevada Bar No. 007254 10 STEPHEN L. TITZER Nevada Bar No. 008289 11 6385 S. Rainbow Boulevard, Suite 600 Las Vegas, Nevada 89118 12 Attorneys for Defendant 13 VINCENT TJOTA

SIVITH LLP 4859-7482-7344.1 Case No.: 2:16-Cv-00202-JCM-VCF Lemperle v. Tjota 1 AFFIDAVIT OF STEPHEN L. TITZER, ESQ., INSUPPORT OF DEFENDANT'S 5 MOTION TO CONTINUE TRIAL || STATE OF NEVADA ) || COUNTY OF CLARK * 5 STEPHEN L. TITZER, being first duly sworn, deposes and says: 6 1. |am a Partner at LEWIS BRISBOIS BISGAARD & SMITH LLP, and am duly || licensed to practice law in the State of Nevada.

8 2. | am competent to testify to the matters set forth in this Affidavit, and will do || so if called upon.

10 3. | am an attorney representing Defendant Vincent Tjota in the subject lawsuit ||in the United States District Court of Nevada, Case No. 2:18-cv-00202-JCM-VCF. {2 4. Defendant resides in Singapore. Defendant contacted Defense counsel to || provide the status of his family’s travel for the trial. Defendant and Janice Siau, his wife, ||recently had their second child and they are parents and caregivers. They notified 15 Defense counsel that their child is too young to travel and has not had the required || vaccinations. Defendant requests to continue the trial to complete the child’s || vaccinations that cannot be completed for six (6) months and the need to have the || vaccinations completed before they travel to the United States.

19 5. On February 14, 2023, Defense counsel spoke with Tom Stewart, Esq., the || attorney for the Plaintiff, to request that they agree to continue the trial due to the || Defendant's need for the children’s vaccinations before international travel. Mr. Stewart || agreed to discuss with Plaintiff and agreed that Defendant should file the Motion out of || caution with trial to begin on March 27, 2023.

24 6. Defendant filed this Motion out of caution and to update the Court on the || status of the Defendant's children’s vaccinations.

26 7. Defendant and his wife cannot complete their children's vaccinations for an || estimated six months, for travel to the United States until after September, 2023.

28 || Defendant respectfully seeks a continuance of the trial until October, 2023.

4859-7482-7344.1 Case No.: 2:18-cv-00202-JCM-VCF Lemperle v. Tjota 1 8. This Motion is not filed for any improper purpose or to cause undue delay.

2 9. Attached hereto as Exhibit A is a true and correct copy of ECF No. 138, || Stipulation and Order to Continue Trial (Fifth Request), dated July 8, 2022.

4 FURTHER YOUR AFFIANT SAYETH NAUGHT.

6 tee j Stephen L. Titzer,/Esq.

9 || SWORN AND SUBSCRIBED to before is. “day of,February, 2023.

11 ~<A BAMaK Tm Pe KURLLA eae gine d for said cee C e issi res: . jp Cuewaminne reac

SMITH LLP AT LAW 4859-7482-7344.1 Case No.: 2:18-cv-00202-JCM-VCF Lemperle v. Tjota 1 MEMORANDUM OF POINTS AND AUTHORITIES 2 I.

3 FACTUAL BACKGROUND 4 A. Introduction 5 On Saturday, April 30, 2016, Defendant Vincent Tjota was visiting Las Vegas, || Nevada and driving a Budget rental vehicle with Janice Siau, his wife, as a passenger.

7 They live in Singapore. Defendant was driving a white 2016 Ford Mustang GT || westbound on Bridger Avenue in Las Vegas, Nevada, while stopped at the intersection of ||Maryland Parkway. Plaintiff Rebecca Lemperle was driving a red 2015 Kia RIO LX || vehicle southbound on Maryland. After stopping and looking both ways, Defendant || proceeded to drive through the intersection, which was clear. At that time, Plaintiff drove |) through the intersection and struck Defendant's Mustang. Plaintiff lived in Sweden.

13 Defendant disputes liability. Defendant stopped at the intersection and looked ||both ways before proceeding through the intersection. Defendant did not see the || Plaintiff's car and did not have time to avoid the impact. Plaintiff struck the rear panel of 16 Defendant's Mustang. Defendant disclosed the photographs from the scene of the || accident that showed the damage to the right rear panel of his Mustang.

18 Recently Defendant notified his attorney of their newborn child and inquired about || the status of his travel from abroad to the United States for the jury trial. Defendant 20||stated that his child cannot receive vaccinations needed for international travel and || restrictions for six months. Defendant seeks postponement of the trial to October 2023 || due to his children’s ages and the need for vaccinations.

23 A newborn child constitutes a vulnerable age group for travel, especially without || that child having immunization shots before travel. The child, currently less than two ||months old, cannot obtain some shots until they reach a certain age for their safety.

26 || Defendant, his wife and child may face safety risks with travel. Defendant estimates they || will complete the vaccinations around September 2023.

4859-7482-7344.1 Case No.: 2:18-cv-00202-JCM-VCF Lemperle v. Tjota 1 Based on this information, Defendant seeks a continuance of the jury trial and to || have this trial set for October 2023. Defense counsel will update the Court of the status || of the child’s shots in six months and any travel restrictions as they get closer to the trial || date and attend a status hearing at the request of the Court.

5 Defense counsel received this update from Defendant who requested the || continuance of the current trial date to allow him to attend trial based on his newborn child ||and need for vaccinations to avoid safety issues and restrictions. Defendant and his wife || have a newborn child. Defendant and his family live in Singapore. Defendant and his || wife cannot travel until their child has been vaccinated. They requested more time to || allow for the child’s immunizations in Singapore. The lack of immunizations poses a || safety risk to the child and may create work disruptions and childcare arrangements to || consider with significant out of pocket expenses per individual for international travel for || all family members. Defendant anticipates hardship and costs associated with travel with ||a newborn child. Defendant will need to take off work so he can travel to the United □□ States and attend the jury trial. Janice Siau, his wife, cannot travel at this time while || caring for a newborn without placing their health and safety at risk. Defendant does not || know when the child’s vaccinations will be completed. Defendant estimates completion in || September 2023 and requests that this Court continue trial to October 2023.

19 Tom Stewart, Esq., counsel for the Plaintiff, has not opposed the continuance but || wanted to review with the Plaintiff and agreed to filing the Motion. Defendant requests 21||that this Court grant the Motion to allow enough time to complete the children’s || vaccinations for the safety concerns and avoid travel restrictions.

25 || /// 26117 // ni

4859-7482-7344.1 Case No.: 2:18-cv-00202-JCM-VCF Lemperle v. Tjota 1 II.

2 LEGAL ARGUMENT 3 A. Motions to Continue Trial 4 Local Rule IA 6-1 (a) provides: 5 LRIA6-1. REQUESTS FOR CONTINUANCE, EXTENSION OF TIME, OR 6 ORDER SHORTENING TIME 7 (a) A motion or stipulation to extend time must state the reasons for the extension requested and must inform the court of all previous 8 extensions of the subject deadline the granted.

9 || See, LR IA 6-1(a).

10 District courts have the inherent power to control their respective dockets. See, || Oliva v. Sullivan, 958 F.2d 272, 273 (9th Cir. 1992); Hamilton Copper & Steel Corp. v. || Primary Steel, Inc., 898 F.2d 1428, 1429 (9th Cir. 1990).

13 The importance of physical presence at trial cannot be overlooked. The Federal || Rule of Civil Procedure 43(a) provides in part: Rule 43. Taking Testimony (a) In Open Court. At trial, the witnesses’ testimony must be 17 taken in open court unless a federal statute, the Federal Rules of Evidence, these rules, or others adopted by the Supreme 18 Court provide otherwise. For good cause in compelling circumstances and with appropriate safeguards, the court may 19 permit testimony in open court by contemporaneous transmission from a different location. see, FRCP 43(a).

22 The Notes of Advisory Committee on Rules also provided the following with || respect to live testimony: Contemporaneous transmission of testimony from a different 25 location is permitted only on showing good cause _ in compelling circumstances. The importance of presenting live 26 testimony in court cannot be forgotten. The very ceremony of trial and the presence of the factfinder may exert a powerful 27 force for truthtelling. The opportunity to judge the demeanor of a witness face-to-face is accorded great value in our tradition.

28 Transmission cannot be justified merely by showing that it is

SMITH LLP ATLA 4859-7482-7344.1 Case No.: 2:18-cv-00202-JCOM-VCF Lemperle v. Tjota 1 inconvenient for the witness to attend the trial.

2 || See, NOTES OF ADVISORY COMMITTEE ON RULES - 1996 AMENDMENT (emphasis added).

3 B. Good Cause Exists to Continue the Trial Pending the Vaccinations 4 Defendant is not a United States Citizen and resides in Singapore. Defendant |iand his wife desire to physically attend the trial. Unfortunately, Defendant’s newborn || child has not yet received all vaccinations. Defendant faces difficulty with travel due to \|the young age of their newborn and need for vaccinations before a long international || travel with potential COVID-19 restrictions. Without the child’s vaccinations, travel poses ||a burden and risk to the health, safety and welfare of the children. Defendant's children || may have difficulty with travel insurance and the costs and risks associated with travel to || the United States if they are not vaccinated and need healthcare abroad.

12 Defendant and his wife are essential to the defense of the case and request in || person testimony, not by Zoom or other technology. They are entitled to their day in || court. Defendant anticipates the travel difficulty and risk will decrease once their child || reaches the proper age to safely obtain the immunizations.

16 The Court may set a hearing before the Pretrial Conference to address these || matters, the work schedules, any ongoing travel restrictions and the distance the || Defendant must travel to attend trial, typically a twenty-plus hour flight. The use of video || technology cannot replace in person appearance of these witnesses.

20 Defendant deserves his day in Court as a party in this legal proceeding. Defense counsel believes that it would be manifestly unjust if Defendant is not able to be || physically present at trial to testify in front of the jury.

23 Defense counsel has requested that Defendant and his wife are physically present || at the jury trial. Defendant and his wife have a newborn child that requires personal care || and vaccinations before travel. Therefore, Defense counsel respectfully requests that this || Court continue the trial until October 2023.

4859-7482-7344.1 Case No.: 2:16-ev-00202-JCOM-VCF Lemperle v. Tjota 1 Hl.

2 CONCLUSION 3 Defendant requests that this Court grant his Motion and continue the jury trial until 4||October 2023. Due to the children’s age and need for vaccinations, and possible ||international travel restrictions, good cause exists to continue the trial and complete the || vaccinations so the children may travel with their parents.

7 DATED this | day of February, 2023.

8 Respectfully Submitted, 9 LEWIS BRISBOIS BISGAARD & SMITH LLP By /s/ Josh Cole Aicklen 12 JOSH COLE AICKLEN Nevada Bar No. 007254 13 STEPHEN L. TITZER Nevada Bar No. 008289 14 6385 S. Rainbow Boulevard, Suite 600 Las Vegas, Nevada 89118 15 Attorneys for Defendant 46 VINCENT TJOTA = 78

SMITH LLP AAW 4859-7482-7344.1 Case 2:18-cv-00202-JOM-VCF Lemperle v. Tjota 1 ORDER 2 IT IS HEREBY ORDERED, ADJUDGED AND DECREED that Defendant's Motion || to Continue Trial is GRANTED pursuant to Local Rule 45-2 due to the factual findings of || the Defendant’s children’s need for vaccinations and comply with any international travel || restrictions for the health, safety and welfare of their child; and 6 IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the current trial || date on March 27, 2023 is VACATED; and 8 IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the new trial date || shall be reset to begin October 16, 2023 at 9:00 a.m. Calendar Call shall be reset to || October 11, 2023, at 1:30 p.m.

11 “IT 1S SO ORDERED: 2 NORA A. J c Ata Wea, UNITED, STATES DISTRICT JUDGE 13 —_ DATED February 19, 2023 || Submitted By: 1g||Dated__— 2/14/23, || LEWIS BRISBOIS BISGAARD & SMITH LLP 21 ||_/s/ Josh Cole Aicklen Josh Cole Aicklen, Esq.

22 || Stephen L. Titzer, Esq.

6385 S. Rainbow Boulevard, Suite 600 || Las Vegas, NV 89118 oA Attorneys for Defendant VINCENT TJOTA

SMITH LP 4859-7482-7344.1 10 Case No.: 2:18-cv-00202-JCM-VCF Lemperle v. Tjota 1 CERTIFICATE OF SERVICE 2 | hereby certify that on this / 7 day of February 14, 2023, a true and correct copy || of the foregoing DEFENDANT’S MOTION TO CONTINUE TRIAL (SIXTH REQUESTED 4||EXTENSION) was served via electronic service by the U.S. District Court CM/ECF || system to the parties with an email-address on record, as follows: || Paul D. Powell, Esq.

Tom Stewart, Esq.

7 || THE POWELL LAW FIRM 8918 Spanish Ridge Avenue, Suite 100 Las Vegas, NV 89148 g || Telephone: 702-728-5500 Fax: 702-728-5501 || [email protected] Attorneys for Plaintiff || REBECCA LEMPERLE 15 ‘ By 16 An Empl O LEWIS BRISBOIS BISGAARD & SMITH LLP

SMITH LLP ATLAW 4859-7482-7344.1 11 Case No.: 2:18-cv-00202-JCM-VCF Lemperle v. Tjota 1 EXHIBITS INDEX DEFENDANT'S MOTION TO CONTINUE TRIAL 2 (SIXTH REQUESTED EXTENSION) : TT

4859-7482-7344.1 12 Exhibit A ECF No. 138 - Stipulation and Order to Continue Trial (Fifth Requested Extension) || JOSH COLE AICKLEN Nevada Bar No. 007254 || [email protected] STEPHEN L. TITZER || Nevada Bar No. 008289 [email protected] || LEWIS BRISBOIS BISGAARD & SMITH LLP 6385 S, Rainbow Boulevard, Suite 600 || Las Vegas, Nevada 89118 TEL.: 702,893,3383 || FAX: 702.893.3789 Attorneys for Defendant VINCENT TJOTA 10 UNITED STATES DISTRICT COURT 11 DISTRICT OF NEVADA || REBECCA LEMPERLE, individually, CASE NO.: 2:18-cv-00202-JCM-VCF 13 Plaintiff, 14 vs. || VINCENT TJOTA, individually; AVIS RENT A CAR SYSTEMS, LLC, a foreign || limited liability company; PV HOLDING CORP.., a foreign corporation; DOES I-X, || and ROE CORPORATIONS I-x, inclusive, 18 Defendants.

STIPULATION AND ORDER TO CONTINUE TRIAL 20 (FIFTH REQUESTED EXTENSION) 21 The parties, by and through their counsel, submit this Stipulation to extend the trial Il date currently set for August 8, 2022. The parties requesta trial continuance until sometime in March 2023 or April 2023. Plaintiff's counsel represents they have 7-8 trials set for August, 2022. Defendant and his wife reside in Singapore and they do not object to the trial continuance provided that the trial can be reset to March or April 2023. Defendant and his || wife are expecting a child and they cannot travel until that time. The parties demonstrated good cause to comply with LR IA 6-1 and the Court’s Minute Order ECF No. 136, and filed LEWIS 28 the Stipulation in advance of the Master Trial Calendar Scheduling Conference.

BRISBOIS BISGAARD UP ATTORNEYS ATLAV? 4883-8860-5479.1 Lemperie v. Tjota 2:18-cv-00202-JCM-VCF 1 ORDER TO CONTINUE TRIAL 2 IT 1S HEREBY ORDERED, ADJUDGED AND DECREED that the jury trial currently || set on August 8, 2022 is hereby VACATED.

4 IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the jury trial shall be ilreset to begin on March 27, 2023, at 9:00 a.m. Calendar Call shall be reset to g || March 22, 2023, at 1:30 p.m.

5 “IT [S SO ORDERED: Citas ©. Aahan 9 UNITED STATES DISTRICT JUDGE || Approved as to form and content: Respectfully submitted, || DATED: 717122 . DATED: __ 7/7/22 .

14 || THE POWELL LAW FIRM LEWIS BRISBOIS BISGAARD & SMITH LLP By: _/s/ Tom Stewart By: /sf Josh Cole Aicklen 17 PAUL D. POWELL JOSH COLE AICKLEN Nevada Bar No. 007488 Nevada Bar No, 007254 18 THOMAS W. STEWART STEPHEN L. TITZER 49 Nevada Bar No. 014280 Nevada Bar No. 008289 8918 Spanish Ridge Avenue, #100 6385 South Rainbow Bivd., Suite 600 20 Las Vegas, NV 89148 Las Vegas, Nevada 89118 Attorneys for Plaintiff Attorneys for Defendant 21 REBECCA LEMPERLE VINCENT TJOTA Lewis 78 BRISBOIS BISGAARD & SMITH LP 4883-8860-5479,1 Kurilla, Peggy sn □□ From: Tom Stewart <[email protected]> Sent: Thursday, July 7, 2022 8:14 AM To: Titzer, Stephen Ce: Michelle Temoche; Aicklen, Josh Cole; Kurilla, Peggy Subject: [EXT] Re: Lemperle v. Tjota [ SAO Continue Trial - Fifth Request ] 2:18-cv-00202- JCM-VCF // 50023-245 Attachments: Logo_e6253148-26a1-47a9-b861-6acOff0bc3c4.png; sao continue trial - fifth request,pdf You can affix my e signature. Thank you Tom W. Stewart (702) 326-1770 Sent from my iPhone On Jul 7, 2022, at 7:42 AM, Titzer, Stephen <[email protected]> wrote: Counsel, We attached the SAO to continue trial - can you sign and return to my office before tomorrow.

Regards, Steve Stephen L. Titzer Partner Stephen. □□□□□□□□□□□□□□□□□□□□□□□□ T: 702.693.4334 F; 702.893.3789 6385 South Rainbow Blvd., Suite 600, Las Vegas, NV 89118 | LewisBrisbois.com Representing clients from coast to coast. View our locations nationwide.

This e-mail may contain or attach privilegéd, confidential or protected information intended only for the use of the intended recipient. If you are not intended recipient, any review or use of it is strictly prohibited, If you have received this e-mail in error, you are required to notify the sender, then delete this email and any attachment from your computer and any of your electronic devices where the message is stored.