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1 Eric A. Forstrom (SBN 237695)
FIRST LAW GROUP, APC
2 ELECTRONICALLY
314 E. Rowland Street
3 Covina, CA 91723 F I L E D
Superior Court of California,
Telephone: (626) 838-5700 County of San Francisco
4 Facsimile: (626) 838-5710
04/12/2022
Email: eric@firstlg.com Clerk of the Court
5 BY: RONNIE OTERO
Deputy Clerk
6 Attorneys for Plaintiff,
DAVID NGUYEN
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SUPERIOR COURT OF THE STATE OF CALIFORNIA
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9 FOR THE COUNTY OF SAN FRANCISCO
10 DAVID NGUYEN, Case No.: CGC-19-576056
Assigned to the Hon. Richard B. Ulmer, Jr.
11 Plaintiff, Dept. 302
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vs. PLAINTIFF'S OPPOSITION TO
13 DEFENDANTS' MOTION FOR COST OF
SHERMAN LEWIS WRIGHT; FORD PROOF SANCTIONS; DECLARATION
14 MOTOR COMPANY; CHARIOT TRANSIT, OF ERIC A. FORSTROM
15 INC.; and DOES Ito 30, Hearing:
Date: April 25, 2022
16 Defendants. Time: 9:30 a.m.
17 Dept.: 302
Location: 400 McAllister Street
18 San Bernardino, CA 94102
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TO THE COURT, ALL PARTIES HEREIN, AND THEIR RESPECTIVE
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ATTORNEYS OF RECORD:
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COMES NOW, Plaintiff David Nguyen (hereinafter, "Plaintiff") hereby submits the
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following opposition to the motion for cost of proof sanctions by Defendants Sherman Lewis
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27 Wright, Ford Motor Company, and Chariot Transit, Inc. (hereinafter collectively,
28 "Defendants").
PLAINTIFF'S OPPOSITION TO DEFENDANTS' MOTION FOR COST OF PROOF SANCTIONS
t MEMORANDUM OF POINTS AND AUTHORITIES
2 I. INTRODUCTION
3 This matter arises from an auto versus auto collision in San Francisco, California. On
4 August 24, 2021, this Court granted Defendants' motion for summary judgment. See
5 Declaration of Eric A. Forstrom (hereinafter, "Forstrom Decl."), ¶2. Defendants now move to
6 recover $25,609.13 in "cost of proof sanctions" based on Plaintiff's alleged "unreasonable"
7 denial of three requests for admission (which Defendants claim they were unjustifiably forced to
8 prove false via their motion for summary judgment). See Defendants' Motion, generally. As
9 Defendants acknowledge, both the Court (and Defendants) relied exclusively on a dash cam
10 video to resolve the Motion.' See Forstrom Decl., ¶3. Defendants, however, never produced
II the video as part of a verified discovery production. See Forstrom Decl., ¶4. Indeed,
12 Plaintiff never received the video until service of Defendants' motion for summary
13 judgment --nearly 18 months after Plaintiff served his responses to Defendants' requests
14 for admission. See Id. Had Defendants timely and properly produced such evidence, Plaintiff
15 would have undoubtedly responded differently to the requests for admission. See Forstrom
16 Decl., ¶5. Instead, Defendants wrongfully withheld such evidence, improperly produced it in
17 conjunction with their motion for summary judgment (without verification and despite previous
18 requests for production), and now seek to recover an exorbitant sum of costs and fees for having
19 to "unjustifiably" prove the requests false. The law simply does not work that way.
20 Accordingly, for the reasons stated herein, Defendants' Motion should be denied in its entirety.
21 II. LEGAL ARGUMENT
22 Defendants' Failure to Timely and Properly Produce the Dash Cam Video
23 Bars Recovery Under Section 2033.420.
24 California Code of Civil Procedure section 1033.5 typically governs the recovery of
25 costs following entry of summary judgment. Here, however, Defendants seek recovery under
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27 1 The dash cam video shows that Defendant Wright entered the intersection while the light was yellow, started
making his left turn after the light turned red, and Plaintiff (who was traveling northbound in the opposition
28 direction) ran the red light and collided with Defendant Wright.
PLAINTIFF'S OPPOSITION TO DEFENDANTS' MOTION FOR COST OF PROOF SANCTIONS
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1 Section 2033.420 --which governs requests for admission --not recovery of costs and fees after
2 summary judgment. Indeed, Section 2033.420 authorizes courts to impose sanctions should a
3 party successfully litigate a discovery motion to compel. See CCP §2033.420. That is not the
4 ease here. As Defendants acknowledge, Plaintiff served verified responses to their requests for
5 admission during the pendency of the litigation. See Defendants' Motion, page 4, lines 4-5.
6 The fact that Defendants subsequently prevailed on a motion for summary judgment -- which
7 Plaintiff opposed in good faith --has nothing to do with "costs of proof sanctions" under
8 Section 2033.420.
9 Even if such an award is recoverable under Section 2033.420, Defendants' own conduct
10 bars such recovery. Again, Defendants never produced the video as part of a verified discovery
11 production. See Forstrom Decl., ¶4. Rather, Plaintiff received the video with Defendants'
12 motion for summary judgment -- nearly 18 months after Plaintiff served his responses to the
13 requests for admission. See Id. Had Defendants timely and properly produced such evidence,
14 Plaintiff would have undoubtedly responded differently to the requests for admission. See
15 Forstrom Decl., ¶5. Instead, Defendants wrongfully withheld such evidence, improperly
16 produced it in conjunction with their motion for summary judgment (without verification and
17 despite previous requests for production), and now seek to recover an exorbitant sum of costs
18 and fees in for having to "unjustifiably" prove the requests false. Defendants' request should
19 not be well-received (let alone rewarded).
20 Finally, it is well-established that any fee award must begin with setting a lodestar, i.e.
21 "the number of hours reasonably expended multiplied by the reasonable hourly rate." After the
22 trial court has performed the calculations [of the lodestar], "it shall consider whether the total
23 award so calculated under all of the circumstances of the case is more than a reasonable amount
24 and, if so, shall reduce the [] award so that it is a reasonable figure." See PLCM Group v.
25 Drexler, 22 Cal.4`h 1084, 1095-1096 (2000). Indeed, the trial court's role is not merely to
26 rubber stamp the [attorney's] request, but to ascertain whether the amount sought is reasonable."
27 See Robertson v. Rodriguez, 36 Cal.App.4`h 347, 361 (1995). The court makes its determination
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PLAINTIFF'S OPPOSITION TO DEFENDANTS' MOTION FOR COST OF PROOF SANCTIONS
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I "after consideration of a number of factors, including the nature of the litigation, its difficulty,
2 the amount involved, the skill required in its handling, the skill employed, the attention given,
3 the success or failure, and other circumstances in the ease." See PLCM Group, supra, at 1096.
4 Here, in the event the Court is inclined to impose any "cost of proof sanctions," Plaintiff
5 requests the Court first set a reasonable lodestar. For example, had Defendants immediately
6 produced the video upon their receipt/discovery of same, the need for a motion for
7 summary judgment would very likely have been obviated. See Forstrom Decl., ¶5. It
8 necessarily follows, therefore, that all costs and fees associated therewith should be deemed
9 "unnecessary and unreasonable." See PLCM Group v. Drexler, supra, at 1095-1096; see also
10 Robertson, supra, at 361 .
II III. CONCLUSION
12 Based on the foregoing, Plaintiff respectfully requests this Court deny Defendants'
13 Motion in its entirety.
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Dated: April 12, 2022 FIRST LAW GROUP, APC
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18 By: Eric' rth o w
ERIC A. FORSTROM
19 Attorneys for Plaintiff,
20 DAVID NGUYEN
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PLAINTIFF'S OPPOSITION TO DEFENDANTS' MOTION FOR COST OF PROOF SANCTIONS
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I DECLARATION OF ERIC A. FORSTROM
2 I, Eric A. Forstrom, declare:
3 I. I am an attorney working with First Law Group, APC, attorneys of record for
4 Plaintiff David Nguyen (hereinafter, `Plaintiff'). 1 am familiar with the files, pleadings, and
5 facts in this case and, if called upon as a witness, I could and would competently testify to the
6 following facts based upon my own personal knowledge.
7 2. On August 24, 2021, this Court granted Defendants' motion for summary
8 judgment.
9 3. As Defendants acknowledge, both the Court (and Defendants) relied exclusively
10 on a dash cam video to resolve the Motion.
II 4. Defendants, however, never produced the video as part of a verified discovery
12 production. Indeed, Plaintiff never received the video until service of Defendants' motion for
13 summary judgment -- nearly 18 months after Plaintiff served his responses to Defendants'
14 requests for admission.
15 5. Had Defendants timely and properly produced such evidence, Plaintiff would
16 have responded differently to the requests for admission.
17 I declare under penalty of perjury under the laws of the State of California that the
18 foregoing is true and correct.
19 Executed this 12`1 day of April 2022, in Covina, California.
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21 By: Frio Pcrctrovw
Eric A. Forstrom, Declarant
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PLAINTIFF'S OPPOSITION TO DEFENDANTS' MOTION FOR COST OF PROOF SANCTIONS
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1 PROOF OF SERVICE
STATE OF CALIFORNIA )
2 COUNTY OF LOS ANGELES )
3 lam a resident of or employed in the County of Los Angeles, State of California.
lam over the age of 18
My business is located at 314 E. Rowland Street, Covina, California 91723.
and am not a party to the within action.
4
On April 12, 2022, I served a document described as PLAINTIFF'S OPPOSITION TO DEFENDANTS'
5 MOTION FOR COST OF PROOF SANCTIONS; DECLARATION OF ERIC A. FORSTROM on all
interested parties in said action as stated on the attached Service List.
6
( ) BY MAIL as follows:
7
( ) STATE - 1 am "readily familiar" with First Law Group's practice of collection and processing
8 correspondence for mailing. Under that practice it would be deposited with the U.S. Postal Service on that same day
with postage thereon fully prepaid at Covina, California, in the ordinary course of business.
lam aware that on
9 motion of party served, service is presumed invalid if postal cancellation date or postage meter date is more than one
(I) day after date of deposit for mailing affidavit.
10
( ) FEDERAL — I deposited such envelope in the United States mail at Covina, California, with postage
11 thereon fully prepaid.
12 ( ) BY EXPRESS MAIL as follows: 1 caused such envelope to be deposited in the U.S. Mail at Covina, California.
The envelope was mailed with Express Mail postage thereon fully prepaid.
13
( X ) BY ELECTRONIC MAIL as follows: I caused a copy of such document to be electronically served on the
14 email address(es) set forth on the attached Service List.
15 ( ) BY PERSONAL SERVICE as follows: 1 caused a copy of such documents to be delivered by hand to
Plaintiffs attorney of record between the hours of 8:00 a.m. and 5:00 p.m.
16
( ) BY FACSIMILE as follows: I caused such documents to be transmitted to the telephone number of the
17 The facsimile
addressee(s) listed on the attached Service List, by use of facsimile machine telephone number.
machine used complied with California Rules of Court, Rule 2.302 and no error was reported by the machine.
18 Pursuant to California Rules of Court, Rule 2.304(d), a transmission record of the transmission was printed.
19 ( X ) STATE — 1 declare under penalty of perjury under the laws of the State of California that the foregoing is true
and correct.
20
( ) FEDERAL — I declare that 1 am employed in the office of a member of the bar of this court at whose direction
21 the service was made.
22 Executed on April 12. 2022, in Covina, California.
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PLAINTIFF'S OPPOSITION TO DEFENDANTS' MOTION FOR COST OF PROOF SANCTIONS
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I SERVICE LIST
2 San Francisco County Superior Court Case No.: CGC-19-576056
3 DAVID NGUYEN v. SHERMAN LEWIS WRIGHT et al.
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5 Krsto Mijanovic, Esq.
Lisa T. Omoto, Esq.
6 HAIGHT. BROWN, & BONESTEEL, LLP
555 South Flower Street, Forty-Fifth Floor
7 Los Angeles, California 90071
8 Telephone: (213) 542-8000
Facsimile: (213) 542-8100
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Email: kmijanovic@hbblaw.com
Email: lomoto@hbblaw.com
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11 Attorneys for Defendants,
SHERMAN LEWIS WRIGHT.. FORD MOTOR
12 COMPANY, and CHARIOT TRANSIT, INC.
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PLAINTIFF'S OPPOSITION TO DEFENDANTS' MOTION FOR COST OF PROOF SANCTIONS
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1 Eric A. Forstrom (SBN 237695) FIRST LAW GROUP, APC 2 ELECTRONICALLY 314 E. Rowland Street 3 Covina, CA 91723 F I L E D Superior Court of California, Telephone: (626) 838-5700 County of San Francisco 4 Facsimile: (626) 838-5710 04/12/2022 Email: eric@firstlg.com Clerk of the Court 5 BY: RONNIE OTERO Deputy Clerk 6 Attorneys for Plaintiff, DAVID NGUYEN 7 SUPERIOR COURT OF THE STATE OF CALIFORNIA 8 9 FOR THE COUNTY OF SAN FRANCISCO 10 DAVID NGUYEN, Case No.: CGC-19-576056 Assigned to the Hon. Richard B. Ulmer, Jr. 11 Plaintiff, Dept. 302 12 vs. PLAINTIFF'S OPPOSITION TO 13 DEFENDANTS' MOTION FOR COST OF SHERMAN LEWIS WRIGHT; FORD PROOF SANCTIONS; DECLARATION 14 MOTOR COMPANY; CHARIOT TRANSIT, OF ERIC A. FORSTROM 15 INC.; and DOES Ito 30, Hearing: Date: April 25, 2022 16 Defendants. Time: 9:30 a.m. 17 Dept.: 302 Location: 400 McAllister Street 18 San Bernardino, CA 94102 19 20 21 22 TO THE COURT, ALL PARTIES HEREIN, AND THEIR RESPECTIVE 23 ATTORNEYS OF RECORD: 24 COMES NOW, Plaintiff David Nguyen (hereinafter, "Plaintiff") hereby submits the 25 following opposition to the motion for cost of proof sanctions by Defendants Sherman Lewis 26 27 Wright, Ford Motor Company, and Chariot Transit, Inc. (hereinafter collectively, 28 "Defendants"). PLAINTIFF'S OPPOSITION TO DEFENDANTS' MOTION FOR COST OF PROOF SANCTIONS t MEMORANDUM OF POINTS AND AUTHORITIES 2 I. INTRODUCTION 3 This matter arises from an auto versus auto collision in San Francisco, California. On 4 August 24, 2021, this Court granted Defendants' motion for summary judgment. See 5 Declaration of Eric A. Forstrom (hereinafter, "Forstrom Decl."), ¶2. Defendants now move to 6 recover $25,609.13 in "cost of proof sanctions" based on Plaintiff's alleged "unreasonable" 7 denial of three requests for admission (which Defendants claim they were unjustifiably forced to 8 prove false via their motion for summary judgment). See Defendants' Motion, generally. As 9 Defendants acknowledge, both the Court (and Defendants) relied exclusively on a dash cam 10 video to resolve the Motion.' See Forstrom Decl., ¶3. Defendants, however, never produced II the video as part of a verified discovery production. See Forstrom Decl., ¶4. Indeed, 12 Plaintiff never received the video until service of Defendants' motion for summary 13 judgment --nearly 18 months after Plaintiff served his responses to Defendants' requests 14 for admission. See Id. Had Defendants timely and properly produced such evidence, Plaintiff 15 would have undoubtedly responded differently to the requests for admission. See Forstrom 16 Decl., ¶5. Instead, Defendants wrongfully withheld such evidence, improperly produced it in 17 conjunction with their motion for summary judgment (without verification and despite previous 18 requests for production), and now seek to recover an exorbitant sum of costs and fees for having 19 to "unjustifiably" prove the requests false. The law simply does not work that way. 20 Accordingly, for the reasons stated herein, Defendants' Motion should be denied in its entirety. 21 II. LEGAL ARGUMENT 22 Defendants' Failure to Timely and Properly Produce the Dash Cam Video 23 Bars Recovery Under Section 2033.420. 24 California Code of Civil Procedure section 1033.5 typically governs the recovery of 25 costs following entry of summary judgment. Here, however, Defendants seek recovery under 26 27 1 The dash cam video shows that Defendant Wright entered the intersection while the light was yellow, started making his left turn after the light turned red, and Plaintiff (who was traveling northbound in the opposition 28 direction) ran the red light and collided with Defendant Wright. PLAINTIFF'S OPPOSITION TO DEFENDANTS' MOTION FOR COST OF PROOF SANCTIONS 2 1 Section 2033.420 --which governs requests for admission --not recovery of costs and fees after 2 summary judgment. Indeed, Section 2033.420 authorizes courts to impose sanctions should a 3 party successfully litigate a discovery motion to compel. See CCP §2033.420. That is not the 4 ease here. As Defendants acknowledge, Plaintiff served verified responses to their requests for 5 admission during the pendency of the litigation. See Defendants' Motion, page 4, lines 4-5. 6 The fact that Defendants subsequently prevailed on a motion for summary judgment -- which 7 Plaintiff opposed in good faith --has nothing to do with "costs of proof sanctions" under 8 Section 2033.420. 9 Even if such an award is recoverable under Section 2033.420, Defendants' own conduct 10 bars such recovery. Again, Defendants never produced the video as part of a verified discovery 11 production. See Forstrom Decl., ¶4. Rather, Plaintiff received the video with Defendants' 12 motion for summary judgment -- nearly 18 months after Plaintiff served his responses to the 13 requests for admission. See Id. Had Defendants timely and properly produced such evidence, 14 Plaintiff would have undoubtedly responded differently to the requests for admission. See 15 Forstrom Decl., ¶5. Instead, Defendants wrongfully withheld such evidence, improperly 16 produced it in conjunction with their motion for summary judgment (without verification and 17 despite previous requests for production), and now seek to recover an exorbitant sum of costs 18 and fees in for having to "unjustifiably" prove the requests false. Defendants' request should 19 not be well-received (let alone rewarded). 20 Finally, it is well-established that any fee award must begin with setting a lodestar, i.e. 21 "the number of hours reasonably expended multiplied by the reasonable hourly rate." After the 22 trial court has performed the calculations [of the lodestar], "it shall consider whether the total 23 award so calculated under all of the circumstances of the case is more than a reasonable amount 24 and, if so, shall reduce the [] award so that it is a reasonable figure." See PLCM Group v. 25 Drexler, 22 Cal.4`h 1084, 1095-1096 (2000). Indeed, the trial court's role is not merely to 26 rubber stamp the [attorney's] request, but to ascertain whether the amount sought is reasonable." 27 See Robertson v. Rodriguez, 36 Cal.App.4`h 347, 361 (1995). The court makes its determination 28 PLAINTIFF'S OPPOSITION TO DEFENDANTS' MOTION FOR COST OF PROOF SANCTIONS 3 I "after consideration of a number of factors, including the nature of the litigation, its difficulty, 2 the amount involved, the skill required in its handling, the skill employed, the attention given, 3 the success or failure, and other circumstances in the ease." See PLCM Group, supra, at 1096. 4 Here, in the event the Court is inclined to impose any "cost of proof sanctions," Plaintiff 5 requests the Court first set a reasonable lodestar. For example, had Defendants immediately 6 produced the video upon their receipt/discovery of same, the need for a motion for 7 summary judgment would very likely have been obviated. See Forstrom Decl., ¶5. It 8 necessarily follows, therefore, that all costs and fees associated therewith should be deemed 9 "unnecessary and unreasonable." See PLCM Group v. Drexler, supra, at 1095-1096; see also 10 Robertson, supra, at 361 . II III. CONCLUSION 12 Based on the foregoing, Plaintiff respectfully requests this Court deny Defendants' 13 Motion in its entirety. 14 15 Dated: April 12, 2022 FIRST LAW GROUP, APC 16 17 18 By: Eric' rth o w ERIC A. FORSTROM 19 Attorneys for Plaintiff, 20 DAVID NGUYEN 21 22 23 24 25 26 27 28 PLAINTIFF'S OPPOSITION TO DEFENDANTS' MOTION FOR COST OF PROOF SANCTIONS 4 I DECLARATION OF ERIC A. FORSTROM 2 I, Eric A. Forstrom, declare: 3 I. I am an attorney working with First Law Group, APC, attorneys of record for 4 Plaintiff David Nguyen (hereinafter, `Plaintiff'). 1 am familiar with the files, pleadings, and 5 facts in this case and, if called upon as a witness, I could and would competently testify to the 6 following facts based upon my own personal knowledge. 7 2. On August 24, 2021, this Court granted Defendants' motion for summary 8 judgment. 9 3. As Defendants acknowledge, both the Court (and Defendants) relied exclusively 10 on a dash cam video to resolve the Motion. II 4. Defendants, however, never produced the video as part of a verified discovery 12 production. Indeed, Plaintiff never received the video until service of Defendants' motion for 13 summary judgment -- nearly 18 months after Plaintiff served his responses to Defendants' 14 requests for admission. 15 5. Had Defendants timely and properly produced such evidence, Plaintiff would 16 have responded differently to the requests for admission. 17 I declare under penalty of perjury under the laws of the State of California that the 18 foregoing is true and correct. 19 Executed this 12`1 day of April 2022, in Covina, California. 20 21 By: Frio Pcrctrovw Eric A. Forstrom, Declarant 22 23 24 25 26 27 28 PLAINTIFF'S OPPOSITION TO DEFENDANTS' MOTION FOR COST OF PROOF SANCTIONS 5 1 PROOF OF SERVICE STATE OF CALIFORNIA ) 2 COUNTY OF LOS ANGELES ) 3 lam a resident of or employed in the County of Los Angeles, State of California. lam over the age of 18 My business is located at 314 E. Rowland Street, Covina, California 91723. and am not a party to the within action. 4 On April 12, 2022, I served a document described as PLAINTIFF'S OPPOSITION TO DEFENDANTS' 5 MOTION FOR COST OF PROOF SANCTIONS; DECLARATION OF ERIC A. FORSTROM on all interested parties in said action as stated on the attached Service List. 6 ( ) BY MAIL as follows: 7 ( ) STATE - 1 am "readily familiar" with First Law Group's practice of collection and processing 8 correspondence for mailing. Under that practice it would be deposited with the U.S. Postal Service on that same day with postage thereon fully prepaid at Covina, California, in the ordinary course of business. lam aware that on 9 motion of party served, service is presumed invalid if postal cancellation date or postage meter date is more than one (I) day after date of deposit for mailing affidavit. 10 ( ) FEDERAL — I deposited such envelope in the United States mail at Covina, California, with postage 11 thereon fully prepaid. 12 ( ) BY EXPRESS MAIL as follows: 1 caused such envelope to be deposited in the U.S. Mail at Covina, California. The envelope was mailed with Express Mail postage thereon fully prepaid. 13 ( X ) BY ELECTRONIC MAIL as follows: I caused a copy of such document to be electronically served on the 14 email address(es) set forth on the attached Service List. 15 ( ) BY PERSONAL SERVICE as follows: 1 caused a copy of such documents to be delivered by hand to Plaintiffs attorney of record between the hours of 8:00 a.m. and 5:00 p.m. 16 ( ) BY FACSIMILE as follows: I caused such documents to be transmitted to the telephone number of the 17 The facsimile addressee(s) listed on the attached Service List, by use of facsimile machine telephone number. machine used complied with California Rules of Court, Rule 2.302 and no error was reported by the machine. 18 Pursuant to California Rules of Court, Rule 2.304(d), a transmission record of the transmission was printed. 19 ( X ) STATE — 1 declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. 20 ( ) FEDERAL — I declare that 1 am employed in the office of a member of the bar of this court at whose direction 21 the service was made. 22 Executed on April 12. 2022, in Covina, California. 23 24 25 26 27 28 PLAINTIFF'S OPPOSITION TO DEFENDANTS' MOTION FOR COST OF PROOF SANCTIONS 6 I SERVICE LIST 2 San Francisco County Superior Court Case No.: CGC-19-576056 3 DAVID NGUYEN v. SHERMAN LEWIS WRIGHT et al. 4 5 Krsto Mijanovic, Esq. Lisa T. Omoto, Esq. 6 HAIGHT. BROWN, & BONESTEEL, LLP 555 South Flower Street, Forty-Fifth Floor 7 Los Angeles, California 90071 8 Telephone: (213) 542-8000 Facsimile: (213) 542-8100 9 Email: kmijanovic@hbblaw.com Email: lomoto@hbblaw.com 10 11 Attorneys for Defendants, SHERMAN LEWIS WRIGHT.. FORD MOTOR 12 COMPANY, and CHARIOT TRANSIT, INC. 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PLAINTIFF'S OPPOSITION TO DEFENDANTS' MOTION FOR COST OF PROOF SANCTIONS 7