Preview
1 Christine Haw (SBN 289351)
email: chaw@slpattorney.com
2 Julian A. Moore (SBN 229082)
email: jmoore@slpattorney.com ELECTRONICALLY
3 STRATEGIC LEGAL PRACTICES,
A PROFESSIONAL CORPORATION
F I L E D
Superior Court of California,
4 1840 Century Park East, Suite 430 County of San Francisco
Los Angeles, CA 90067 05/28/2019
5 Telephone: (310) 929-4900 Clerk of the Court
Facsimile: (310) 943-3838 BY: ERNALYN BURA
Deputy Clerk
6
Attorneys for Plaintiffs,
7 DAWN ANN MASON and JAMES MASON
8
SUPERIOR COURT OF THE STATE OF CALIFORNIA
9
FOR THE COUNTY OF SAN FRANCISCO
10
11
STRATEGIC LEGAL PRACTICES, APC
DAWN ANN MASON and JAMES MASON, Case No.: CGC-18-564545
1840 CENTURY PARK EAST, SUITE 430, LOS ANGELES, CA 90067
12 Plaintiffs,
Case Initiated: February 23, 2018
13 vs.
PLAINTIFFS’ STATUS UPDATE FOR
14 FCA US, LLC; and DOES 1 through 10, COMPLIANCE WITH (1) THE COURT’S
inclusive, FEBRUARY 4, 2019 DISCOVERY ORDER
15 AND (2) ORDER FOR COMPLIANCE ON
Defendants. MAY 13, 2019
16
17 [Concurrently filed with the Declaration of
Julian A. Moore]
18
Date: May 30, 2019
19 Time: 9:00 a.m.
20 Dept.: 301
21
22
23
24
25
26
27
28
PLAINTIFFS’ STATUS UPDATE REGARDING ORDER COMPELLING COMPLIANCE AND PROSPECTIVE SANCTIONS
1 I. INTRODUCTION
2 On February 4, 2019, the Court ordered Defendant to produce additional documents in
3 response to the following Requests for Production of Documents: 7, 16, 17, 20, 21, 22, 23, 25,
4 26, 27, 28, 29, 32, 33, 34, 35, 52, 53, 54, 55, 56, 57, 58, 69, and 76. On May 13, 2019, the Court
5 determined that Defendant had not complied with that Order. Defendant FCA US LLC
6 (hereinafter “Defendant” or “FCA”) has not produced a single additional document since the
7 Court’s May 13, 2019 Order, which was to mandate compliance with the Court’s February 4,
8 2019 discovery Order. Therefore, Defendant continues to act with wilful disregard to the
9 authority of the Court, and in violation of the spirit of discovery. Consequently, regrettably, it
10 appears the only means to motivate Defendant to respect the authority of the Court and
11 Plaintiffs’ right to discovery is to impose sanctions.
STRATEGIC LEGAL PRACTICES, APC
1840 CENTURY PARK EAST, SUITE 430, LOS ANGELES, CA 90067
12 II. DEFENDANT STILL HAS NOT FULLY COMPLIED WITH THE FEBRUARY
13 4, 2019 DISCOVERY ORDER AND CONTINUES TO WITHHOLD
14 DOCUMENTS
15 Defendant has failed to comply with the Court’s February 4, 2019 Order or the Court’s
16 May 13, 2019 Order by producing any electronic communications or e-mails related to the
17 requests and the defects at issue in this case. In addition, they do not provide any verified
18 statement that such documents have never been gathered and such documents have never been
19 produced in a California case.
20 Defendant represents that it has complied in full with the Court’s Order, but a review of
21 the supplemental production demonstrates that Defendant is still withholding documents.
22 Initially, Defendant produced the following Technical Service Bulletins (“TSBs”) related to
23 sliding doors in its supplemental production: TSB 08-021-10 REV B; TSB 23-014-10; TSB 23-
24 001-11; TSB 23-014-14; and TSB 23-017-12. However, Defendant’s TSB Index lists the
25 following additional TSBs, which have not been produced:
26 • TSB 08-017-09;
27 • TSB 08-021-10;
28
PLAINTIFFS’ STATUS UPDATE REGARDING ORDER COMPELLING COMPLIANCE AND PROSPECTIVE SANCTIONS
1 • TSB 08-021-10A;
2 • TSB 23-005-10;
3 • TSB 23-009-11; and
4 • TSB 23-012-12A.
5 Consequently, Defendant clearly has not fully complied with the Court’s February 4,
6 2019 Discovery Order, or it’s May 13, 2019 Order. In addition, Defendant produced a
7 document that describes the process in relation to TSB 08-021-10 REV B. However,
8 Defendant did not produce any similar documents in association with the additional TSBs it
9 produced. Presumably, if this type of process document was generated in association with one
10 TSB, then a similar document would have been generated in association with all TSBs.
11 Obviously, since Defendant failed to produce the additional TSBs referenced above from the
STRATEGIC LEGAL PRACTICES, APC
1840 CENTURY PARK EAST, SUITE 430, LOS ANGELES, CA 90067
12 TSB index, then they withheld the supporting documents in association with those improperly
13 withheld TSBs. Consequently, despite Defendant’s representation, they have not complied in
14 full with the Court’s February 4, 2019 Discovery Order, and the Court must enforce
15 compliance with the Order.
16 III. THE WILLFUL, KNOWING, AND CONTINUAL VIOLATION OF THE
17 COURT’S ORDER WARRANTS SANCTIONS
18 Defendant has no justification for still being in violation of both of the Court’s
19 Discovery Orders. When a party refuses to obey a court order compelling further responses to a
20 request for documents, the Court “may make those orders that are just, including the imposition
21 of…a terminating sanction.” Civ. Proc. Code § 2031.310(i).
22 “Only two facts are absolutely prerequisite to imposition of the sanction: (1) there must
23 be a failure to comply ... and (2) the failure must be willful.” Liberty Mut. Fire Ins. Co. v. LcL
24 Adm'rs, Inc., 163 Cal.App.4th 1093, 1102 (2008) (citing Vallbona v. Springer, 43 Cal.App.4th
25 1525, 1545 (1996).) Here, FCA has certainly, (1) failed to comply and, (2) that failure was
26 willful.
27
28
PLAINTIFFS’ STATUS UPDATE REGARDING ORDER COMPELLING COMPLIANCE AND PROSPECTIVE SANCTIONS
1 FCA’s stonewalling needs to come to an end. Plaintiffs are still not in receipt of all of
2 the documents mandated by the Court’s February 4, 2019 Discovery Order, despite the Court
3 ordering compliance on May 13, 2019. In the Song Beverly Consumer Warranty Act case of
4 Doppes v. Bentley Motors, Inc., the plaintiff sought the exact same type of documents which are
5 sought in the instant matter: documents relating to customer complaints, internal tests and
6 investigations, etc. (174 Cal.App.4th 967, 973-974 (2009).) In holding the trial court abused its
7 discretion in failing to impose terminating sanctions, the appellate court noted that the record
8 demonstrated that defendant had “engaged in repeated and egregious violations of the discovery
9 laws that not only impaired plaintiff’s rights, but threatened the integrity of the judicial
10 process,” thereby justifying the imposition of terminating sanctions. Id. at 971.
11 Unlike Defendant, Plaintiffs are litigating in a reasonable fashion and are not requesting
STRATEGIC LEGAL PRACTICES, APC
1840 CENTURY PARK EAST, SUITE 430, LOS ANGELES, CA 90067
12 terminating sanctions. However, Plaintiffs request the Court impose prospective monetary
13 sanctions of $500 for each day after the compliance deadline that Defendant does not fully
14 comply with the Court’s further order.
15 V. CONCLUSION
16 At this point, neither Plaintiffs nor the Court have any other recourse than sanctions of
17 $500 per day for each day that Defendant has not fully complied with the Court’s multiple
18 Orders.
19
20 Dated: May 28, 2019 Respectfully submitted,
21 STRATEGIC LEGAL PRACTICES, APC
22
23
By:
24 JULIAN A. MOORE Attorneys for Plaintiffs,
DAWN ANN MASON and JAMES MASON
25
26
27
28
PLAINTIFFS’ STATUS UPDATE REGARDING ORDER COMPELLING COMPLIANCE AND PROSPECTIVE SANCTIONS
1 PROOF OF SERVICE
2 STATE OF CALIFORNIA, COUNTY OF LOS ANGELES
3 I am employed in the County of Los Angeles, State of California. I am over the age of
18 and not a party to the within action. My business address is Strategic Legal Practices, 1840
4 Century Park East, Suite 430, Los Angeles, California 90067.
5 On May 28, 2019, I served the document(s) described as:
6 PLAINTIFFS’ STATUS UPDATE FOR COMPLIANCE WITH (1) THE COURT’S
FEBRUARY 4, 2019 DISCOVERY ORDER AND (2) ORDER FOR COMPLIANCE ON
7 MAY 13, 2019
8
on the interested parties in this action by sending [ ] the original [or] [✓] a true copy thereof
9 [✓] to interested parties as follows [or] [ ] as stated on the attached service list:
10 JON D. UNIVERSAL, SBN 141255
JAMES P. MAYO, SBN 169897
11 NEILA NASSIRIAN, SBN 308730
STRATEGIC LEGAL PRACTICES, APC
ADAM G. KHAN, SBN 296617
1840 CENTURY PARK EAST, SUITE 430, LOS ANGELES, CA 90067
12 UNIVERSAL & SHANNON, LLP
13 2240 Douglas Boulevard, Suite 290
Roseville, Califomia 95661
14
[ ] BY MAIL (ENCLOSED IN A SEALED ENVELOPE): I deposited the envelope(s)
15 for mailing in the ordinary course of business at Los Angeles, California. I am
“readily familiar” with this firm’s practice of collection and processing
16 correspondence for mailing. Under that practice, sealed envelopes are deposited with
the U.S. Postal Service that same day in the ordinary course of business with postage
17 thereon fully prepaid at Los Angeles, California.
18 [ ] BY E-MAIL: I hereby certify that this document was served from Los Angeles,
California, by e-mail delivery on the parties listed herein at their most recent known e-
19 mail address or e-mail of record in this action.
20 [ ] BY PERSONAL SERVICE: I caused the attached to be delivered, by hand, enclosed
in an envelope to the offices of the addressee(s) named herein by messenger service.
21 [X] BY OVERNIGHT DELIVERY: I am “readily familiar” with this firm’s practice of
collection and processing correspondence for overnight delivery. Under that practice,
22 overnight packages are enclosed in a sealed envelope with a packing slip attached
thereto fully prepaid. The packages are picked up by the carrier at our offices or
23 delivered by our office to a designated collection site.
24 I declare under penalty of perjury under the laws of the State of California that the foregoing is
true and correct. Executed this May 28, 2019, at Los Angeles, California.
25
26
Katrina Gorgy
27
28
1
PLAINTIFFS’ STATUS UPDATE REGARDING ORDER COMPELLING COMPLIANCE AND PROSPECTIVE SANCTIONS
Preview
1 Christine Haw (SBN 289351) email: chaw@slpattorney.com 2 Julian A. Moore (SBN 229082) email: jmoore@slpattorney.com ELECTRONICALLY 3 STRATEGIC LEGAL PRACTICES, A PROFESSIONAL CORPORATION F I L E D Superior Court of California, 4 1840 Century Park East, Suite 430 County of San Francisco Los Angeles, CA 90067 05/28/2019 5 Telephone: (310) 929-4900 Clerk of the Court Facsimile: (310) 943-3838 BY: ERNALYN BURA Deputy Clerk 6 Attorneys for Plaintiffs, 7 DAWN ANN MASON and JAMES MASON 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 FOR THE COUNTY OF SAN FRANCISCO 10 11 STRATEGIC LEGAL PRACTICES, APC DAWN ANN MASON and JAMES MASON, Case No.: CGC-18-564545 1840 CENTURY PARK EAST, SUITE 430, LOS ANGELES, CA 90067 12 Plaintiffs, Case Initiated: February 23, 2018 13 vs. PLAINTIFFS’ STATUS UPDATE FOR 14 FCA US, LLC; and DOES 1 through 10, COMPLIANCE WITH (1) THE COURT’S inclusive, FEBRUARY 4, 2019 DISCOVERY ORDER 15 AND (2) ORDER FOR COMPLIANCE ON Defendants. MAY 13, 2019 16 17 [Concurrently filed with the Declaration of Julian A. Moore] 18 Date: May 30, 2019 19 Time: 9:00 a.m. 20 Dept.: 301 21 22 23 24 25 26 27 28 PLAINTIFFS’ STATUS UPDATE REGARDING ORDER COMPELLING COMPLIANCE AND PROSPECTIVE SANCTIONS 1 I. INTRODUCTION 2 On February 4, 2019, the Court ordered Defendant to produce additional documents in 3 response to the following Requests for Production of Documents: 7, 16, 17, 20, 21, 22, 23, 25, 4 26, 27, 28, 29, 32, 33, 34, 35, 52, 53, 54, 55, 56, 57, 58, 69, and 76. On May 13, 2019, the Court 5 determined that Defendant had not complied with that Order. Defendant FCA US LLC 6 (hereinafter “Defendant” or “FCA”) has not produced a single additional document since the 7 Court’s May 13, 2019 Order, which was to mandate compliance with the Court’s February 4, 8 2019 discovery Order. Therefore, Defendant continues to act with wilful disregard to the 9 authority of the Court, and in violation of the spirit of discovery. Consequently, regrettably, it 10 appears the only means to motivate Defendant to respect the authority of the Court and 11 Plaintiffs’ right to discovery is to impose sanctions. STRATEGIC LEGAL PRACTICES, APC 1840 CENTURY PARK EAST, SUITE 430, LOS ANGELES, CA 90067 12 II. DEFENDANT STILL HAS NOT FULLY COMPLIED WITH THE FEBRUARY 13 4, 2019 DISCOVERY ORDER AND CONTINUES TO WITHHOLD 14 DOCUMENTS 15 Defendant has failed to comply with the Court’s February 4, 2019 Order or the Court’s 16 May 13, 2019 Order by producing any electronic communications or e-mails related to the 17 requests and the defects at issue in this case. In addition, they do not provide any verified 18 statement that such documents have never been gathered and such documents have never been 19 produced in a California case. 20 Defendant represents that it has complied in full with the Court’s Order, but a review of 21 the supplemental production demonstrates that Defendant is still withholding documents. 22 Initially, Defendant produced the following Technical Service Bulletins (“TSBs”) related to 23 sliding doors in its supplemental production: TSB 08-021-10 REV B; TSB 23-014-10; TSB 23- 24 001-11; TSB 23-014-14; and TSB 23-017-12. However, Defendant’s TSB Index lists the 25 following additional TSBs, which have not been produced: 26 • TSB 08-017-09; 27 • TSB 08-021-10; 28 PLAINTIFFS’ STATUS UPDATE REGARDING ORDER COMPELLING COMPLIANCE AND PROSPECTIVE SANCTIONS 1 • TSB 08-021-10A; 2 • TSB 23-005-10; 3 • TSB 23-009-11; and 4 • TSB 23-012-12A. 5 Consequently, Defendant clearly has not fully complied with the Court’s February 4, 6 2019 Discovery Order, or it’s May 13, 2019 Order. In addition, Defendant produced a 7 document that describes the process in relation to TSB 08-021-10 REV B. However, 8 Defendant did not produce any similar documents in association with the additional TSBs it 9 produced. Presumably, if this type of process document was generated in association with one 10 TSB, then a similar document would have been generated in association with all TSBs. 11 Obviously, since Defendant failed to produce the additional TSBs referenced above from the STRATEGIC LEGAL PRACTICES, APC 1840 CENTURY PARK EAST, SUITE 430, LOS ANGELES, CA 90067 12 TSB index, then they withheld the supporting documents in association with those improperly 13 withheld TSBs. Consequently, despite Defendant’s representation, they have not complied in 14 full with the Court’s February 4, 2019 Discovery Order, and the Court must enforce 15 compliance with the Order. 16 III. THE WILLFUL, KNOWING, AND CONTINUAL VIOLATION OF THE 17 COURT’S ORDER WARRANTS SANCTIONS 18 Defendant has no justification for still being in violation of both of the Court’s 19 Discovery Orders. When a party refuses to obey a court order compelling further responses to a 20 request for documents, the Court “may make those orders that are just, including the imposition 21 of…a terminating sanction.” Civ. Proc. Code § 2031.310(i). 22 “Only two facts are absolutely prerequisite to imposition of the sanction: (1) there must 23 be a failure to comply ... and (2) the failure must be willful.” Liberty Mut. Fire Ins. Co. v. LcL 24 Adm'rs, Inc., 163 Cal.App.4th 1093, 1102 (2008) (citing Vallbona v. Springer, 43 Cal.App.4th 25 1525, 1545 (1996).) Here, FCA has certainly, (1) failed to comply and, (2) that failure was 26 willful. 27 28 PLAINTIFFS’ STATUS UPDATE REGARDING ORDER COMPELLING COMPLIANCE AND PROSPECTIVE SANCTIONS 1 FCA’s stonewalling needs to come to an end. Plaintiffs are still not in receipt of all of 2 the documents mandated by the Court’s February 4, 2019 Discovery Order, despite the Court 3 ordering compliance on May 13, 2019. In the Song Beverly Consumer Warranty Act case of 4 Doppes v. Bentley Motors, Inc., the plaintiff sought the exact same type of documents which are 5 sought in the instant matter: documents relating to customer complaints, internal tests and 6 investigations, etc. (174 Cal.App.4th 967, 973-974 (2009).) In holding the trial court abused its 7 discretion in failing to impose terminating sanctions, the appellate court noted that the record 8 demonstrated that defendant had “engaged in repeated and egregious violations of the discovery 9 laws that not only impaired plaintiff’s rights, but threatened the integrity of the judicial 10 process,” thereby justifying the imposition of terminating sanctions. Id. at 971. 11 Unlike Defendant, Plaintiffs are litigating in a reasonable fashion and are not requesting STRATEGIC LEGAL PRACTICES, APC 1840 CENTURY PARK EAST, SUITE 430, LOS ANGELES, CA 90067 12 terminating sanctions. However, Plaintiffs request the Court impose prospective monetary 13 sanctions of $500 for each day after the compliance deadline that Defendant does not fully 14 comply with the Court’s further order. 15 V. CONCLUSION 16 At this point, neither Plaintiffs nor the Court have any other recourse than sanctions of 17 $500 per day for each day that Defendant has not fully complied with the Court’s multiple 18 Orders. 19 20 Dated: May 28, 2019 Respectfully submitted, 21 STRATEGIC LEGAL PRACTICES, APC 22 23 By: 24 JULIAN A. MOORE Attorneys for Plaintiffs, DAWN ANN MASON and JAMES MASON 25 26 27 28 PLAINTIFFS’ STATUS UPDATE REGARDING ORDER COMPELLING COMPLIANCE AND PROSPECTIVE SANCTIONS 1 PROOF OF SERVICE 2 STATE OF CALIFORNIA, COUNTY OF LOS ANGELES 3 I am employed in the County of Los Angeles, State of California. I am over the age of 18 and not a party to the within action. My business address is Strategic Legal Practices, 1840 4 Century Park East, Suite 430, Los Angeles, California 90067. 5 On May 28, 2019, I served the document(s) described as: 6 PLAINTIFFS’ STATUS UPDATE FOR COMPLIANCE WITH (1) THE COURT’S FEBRUARY 4, 2019 DISCOVERY ORDER AND (2) ORDER FOR COMPLIANCE ON 7 MAY 13, 2019 8 on the interested parties in this action by sending [ ] the original [or] [✓] a true copy thereof 9 [✓] to interested parties as follows [or] [ ] as stated on the attached service list: 10 JON D. UNIVERSAL, SBN 141255 JAMES P. MAYO, SBN 169897 11 NEILA NASSIRIAN, SBN 308730 STRATEGIC LEGAL PRACTICES, APC ADAM G. KHAN, SBN 296617 1840 CENTURY PARK EAST, SUITE 430, LOS ANGELES, CA 90067 12 UNIVERSAL & SHANNON, LLP 13 2240 Douglas Boulevard, Suite 290 Roseville, Califomia 95661 14 [ ] BY MAIL (ENCLOSED IN A SEALED ENVELOPE): I deposited the envelope(s) 15 for mailing in the ordinary course of business at Los Angeles, California. I am “readily familiar” with this firm’s practice of collection and processing 16 correspondence for mailing. Under that practice, sealed envelopes are deposited with the U.S. Postal Service that same day in the ordinary course of business with postage 17 thereon fully prepaid at Los Angeles, California. 18 [ ] BY E-MAIL: I hereby certify that this document was served from Los Angeles, California, by e-mail delivery on the parties listed herein at their most recent known e- 19 mail address or e-mail of record in this action. 20 [ ] BY PERSONAL SERVICE: I caused the attached to be delivered, by hand, enclosed in an envelope to the offices of the addressee(s) named herein by messenger service. 21 [X] BY OVERNIGHT DELIVERY: I am “readily familiar” with this firm’s practice of collection and processing correspondence for overnight delivery. Under that practice, 22 overnight packages are enclosed in a sealed envelope with a packing slip attached thereto fully prepaid. The packages are picked up by the carrier at our offices or 23 delivered by our office to a designated collection site. 24 I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed this May 28, 2019, at Los Angeles, California. 25 26 Katrina Gorgy 27 28 1 PLAINTIFFS’ STATUS UPDATE REGARDING ORDER COMPELLING COMPLIANCE AND PROSPECTIVE SANCTIONS