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1 NICOLAS MARTIN (SBN 267708)
Nicolas.martin@wilsonelser.com
2 NATASHA ZASLOVE (SBN 178917)
natasha.zaslove@wilsonelser.com
3 WILSON, ELSER, MOSKOWITZ ELECTRONICALLY
EDELMAN & DICKER LLP F I L E D
4 525 Market Street, 17th Floor Superior Court of California,
County of San Francisco
San Francisco, Ca 94105
5 Telephone: (415) 433-0990 03/23/2020
Facsimile: (415) 434-1370 Clerk of the Court
BY: ERNALYN BURA
6 Deputy Clerk
Attorneys for Defendants,
7 UBER TECHNOLOGIES, INC., RASIER, LLC
and RASIER-CA, LLC
8
9 SUPERIOR COURT OF THE STATE OF CALIFORNIA
10 COUNTY OF SAN FRANCISCO
11 ADAM FUMAROLA, an individual, Case No. CGC-19-575826
12 Plaintiff, DEFENDANTS UBER TECHNOLOGIES,
INC., RASIER, LLC AND RASIER-CA,
13 v. LLC’S OPPOSITION TO PLAINTIFF’S
MOTION FOR ORDER DEEMING
14 UBER TECHNOLOGIES, INC., a Delaware ADMITTED TRUTH OF FACTS AND
Corporation; RASIER, LLC, a Delaware GENUINENESS OF DOCUMENTS AND
15 Limited Liability Company; RASIER-CA, IMPOSING MONETARY SANCTIONS
LLC, a Delaware Limited Liability Company; AGAINST DEFENDANTS AND/OR
16 MARIANN CLARK, an individual, and DOES THEIR ATTORNEYS OF RECORD IN
1 through 30, inclusive, THE AMOUNT OF $1,800
17
Defendants. DATE: 04/06/20
18 TIME: 9:00 AM
DEPT.: 302
19
COMPLAINT: 05/08/19
20 TRIAL: TBD
21
22
23 Defendants UBER TECHNOLOGIES, INC., RASIER, LLC. AND RASIER-CA, LLC
24 respectfully oppose Plaintiff’s Motion for reasons that were beyond Defendants’ control as
25 explained herein, and request the Court deny Plaintiff’s Motion outright on the ground that there
26 was an honest and understandable mistake.
27 ///
28 ///
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OPPOSITION TO PLAINTIFF’S MOTION FOR ORDER DEEMING ADMITTED TRUTH OF FACTS AND
GENUINENESS OF DOCUMENTS
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1 I. INTRODUCTION
2 Due to a change in employment by counsel representing Defendants Uber Technologies,
3 Inc., Rasier, LLC and Rasier-CA, LLC (“Uber/Rasier”) in this lawsuit, Uber/Rasier’s counsel was
4 not aware of the twelve sets of discovery requests plaintiff’s counsel served on Uber/Rasier’s prior
5 law firm. When she became aware of the discovery requests, counsel for Uber/Rasier immediately
6 contacted plaintiff’s counsel to apprise plaintiff’s counsel of having missed the discovery requests
7 due to switching employers. Rather than agree to accept responses with objections, plaintiff’s
8 counsel refused and rushed to the Courthouse with a motion to have facts deemed admitted and
9 genuineness of documents established, and to demand sanctions.
10 The law makes allowances for inadvertence in cases such as this, where a clerical or
11 technical issue resulted in an oversite. Plaintiff’s counsel must not be permitted to exploit an
12 inadvertence resulting from the transfer of a file from one law firm to another. Doing so would
13 result in an injustice to Uber/Rasier and would allow plaintiff’s counsel to profit from an
14 understandable mistake. It would also condone unprofessional conduct not befitting the profession.
15 Such conduct is specifically discouraged by this Court in its Guidelines of Professional Conduct.
16 II. STATEMENT OF FACTS
17 Defendants are currently represented by Natasha K. Zaslove, Of Counsel at Wilson Elser.
18 (Declaration of Natasha K. Zaslove, ¶1.) Uber/Rasier were previously represented by Ms. Zaslove
19 in her capacity as an associate at Tyson & Mendes. (Zaslove Decl. ¶2.) On January 30, 2020, Ms.
20 Zaslove, left Tyson & Mendes, and she joined Wilson Elser on February 3, 2020. (Zaslove Decl.,
21 ¶3.) According to the proof of service accompanying the Request for Admissions at issue, the
22 Request for Admissions was served on Tyson & Mendes on January 28, 2020. (Zaslove Decl., ¶
23 4.) On her last day at Tyson & Mendes, Ms. Zaslove was not aware of the Request for Admissions
24 and did not receive the Request for Admissions prior to her departure from Tyson & Mendes.
25 (Zaslove Decl. ¶5.) Tyson & Mendes sent a DropBox link transferring the file in this case to Wilson
26 Elser on February 11, 2020. (Zaslove Decl., ¶6.)
27 ///
28 ///
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1 Due to inadvertence, Ms. Zaslove was not aware of the pending discovery requests until
2 March 9, 2019, when she specifically reviewed the discovery file contained in the DropBox file
3 transfer link provided by Tyson & Mendes. (Zaslove Decl., ¶ 7.) On that date, March 9, 2020,
4 upon noting that discovery responses were overdue, Ms. Zaslove immediately telephoned
5 plaintiff’s counsel to request an extension of time to respond to discovery on behalf of Uber/Rasier.
6 (Zaslove Decl., ¶ 8.) Plaintiff’s counsel’s associate Robert Hester, stated an extension of time
7 would likely be forthcoming, but he needed to discuss with his boss Tanya. (Zaslove Decl., ¶ 9.)
8 Ms. Zaslove followed up the telephone call with an email, which explained as follows:
9 Hello Robert,
10 Thank you for your time on the phone today. Attached please find the
11 Association of Counsel for my new firm Wilson Elser. As discussed, I just learned today
12 that discovery was due on this case, as the requests from your office appear to have
13 come to my prior firm when I was exiting.
14 I only saw the discovery today, when I opened a dropbox link that was sent by
15 my prior firm on 2/11, but which I did not see until today.
16 Please letme know ifin light of the circumstances, we may have a 30-day
17 extension of time to respond to discovery.
18 (Zaslove Decl., ¶ 10.)
19 Later that same day on March 9, 2020, Uber/Rasier’s counsel received an email from
20 plaintiff’s counsel stating that she would accept responses without objections. (Zaslove Decl., ¶
21 11.) On March 10, 2020, Uber/Rasier’s counsel responded to plaintiff’s counsel that she would
22 serve responses with objections as Uber/Rasier were entitled to do. (Zaslove Decl., ¶ 12.) Later
23 that day, on March 10, 2020, plaintiff’s counsel wrote that she would pursue a motion to compel
24 unless Uber/Rasier’s counsel confirmed by end of day that she would serve responses without
25 objections. (Zaslove Decl., ¶ 13.) Later that same day on March 10, 2020, before Uber/Rasier’s
26 counsel could respond to the email, plaintiff’s counsel sent an email stating that because she had
27 not heard from Uber/Rasier’s counsel, she assumed Uber/Rasier’s counsel was not agreeing to
28 produce responses without objections, and she stated she would immediately file motions to
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OPPOSITION TO PLAINTIFF’S MOTION FOR ORDER DEEMING ADMITTED TRUTH OF FACTS AND
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1 compel. (Zaslove Decl., ¶ 14.)
2 On March 12, 2020, at 3:42 p.m., Uber/Rasier’s counsel wrote PC as follows:
3 Hello Tanya,
4 As conveyed in my last email to you, we will serve discovery responses on behalf
5 of Uber/Rasier, together with our objections. It would be a waste of judicial resources for
6 you to prevail upon the Court in this situation which was a clerical/technical error.
7 According to your proofs of service, you served the discovery request on my prior
8 law firm by mail on January 28, 2020. My last day of employment at my prior firm was
9 January 30, 2020. To my knowledge, the discovery requests had not arrived at my prior firm
10 when I departed. A February 11, 2020 email from my prior firm transmitted the case file to
11 my current firm. That email was either lost or delayed due to a technology issue. I also did
12 not receive my prior firm’s calendar entries for due dates for responses to your discovery
13 requests. As I previously informed you and your associate Robert, I only located and
14 became aware of the discovery requests a few days ago on March 9, 2020.
15 This is a case of inadvertence pursuant to Code of Civil Procedure Section
16 2031.300(a)(2). If we are required to pursue a motion for relief from waiver, or if you file a
17 motion to compel, you will needlessly waste the Court’s time. We therefore appreciate your
18 anticipated cooperation and courtesy in not insisting the objections are deemed waived, and
19 we plan to serve responses together with objections as soon as possible.
20 (Zaslove Decl., ¶ 15.)
21 On Thursday March 12 at 4:08 p.m., just after Uber/Rasier’s counsel sent the above email,
22 her office’s receptionist sent her an email containing plaintiff’s motions, which were hand served
23 that day. (Zaslove Decl., ¶ 16.)
24 Uber/Rasier’s counsel attempted to further meet and confer with plaintiff’s counsel to
25 further explain the inadvertence and to request plaintiff’s counsel withdraw her Motion, and
26 Uber/Rasier’s counsel sent an email to this effect on March 17, 2020. (Zaslove Decl., ¶ 17.) To
27 date, plaintiff’s counsel has not agreed to withdraw the Motion. (Zaslove Decl., ¶ 18.)
28 ///
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OPPOSITION TO PLAINTIFF’S MOTION FOR ORDER DEEMING ADMITTED TRUTH OF FACTS AND
GENUINENESS OF DOCUMENTS
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1 As of the date of this Opposition, Uber/Rasier’s counsel is preparing responses to the
2 twelve sets of Discovery Requests plaintiff’s counsel served, and which Uber/Rasier’s counsel
3 first became aware on March 9, 2020. Uber/Rasier’s counsel plans to serve responses as soon as
4 possible pending client review and approval. (Zaslove Decl., ¶ 19.)
5 III. LEGAL DISCUSSION
6 A. The Court Has Authority to Deny the Motion Because of Excusable Neglect and
7 Inadvertence Resulting from Uber/Rasier’s Counsel Switching Law Firms.
8 Pursuant to Code of Civil Procedure Section 2033.300, this Court is vested with authority
9 to deny a motion to deem facts admitted based on a showing of mistake, inadvertence, or excusable
10 neglect. See Wilcox v. Birtwhistle (1999) 21 Cal. 4th 973, 978 (The court may permit withdrawal
11 of an admission if it determines the admission was the result of mistake, inadvertence, or excusable
12 neglect, and that the party who obtained the admission will not be substantially prejudiced in
13 maintaining that party's action or defense on the merits.) Moreover, “…any doubts in applying
14 section 2033.300 must be resolved in favor of the party seeking relief.” New Albertsons, Inc. v.
15 Superior Court (2008) 168 Cal. App. 4th 1403, 1420-1421.
16 In this case, there is a clear showing of inadvertence due to the move by Uber/Rasier’s
17 counsel from her prior firm to her current firm. The discovery requests at issue were served by
18 mail on January 28, 2020, according to the accompanying proof of service. Counsel for
19 Uber/Rasier departed her prior law firm on January 30, 2020, and did not see the discovery requests
20 prior to departing her prior firm. There is no indication the discovery requests arrived at her prior
21 law firm before her departure. Counsel for Uber/Rasier only became aware of the discovery
22 requests on March 9, 2020. These facts amount to inadvertence and excusable neglect.
23 Uber/Rasier’s counsel immediately contacted plaintiff’s counsel on that same date, March
24 9, 2020, to explain the situation and to request a short extension of time to prepare and serve
25 responses. Rather than grant the request, plaintiff’s counsel filed this Motion as well as a Motion
26 to Compel. Plaintiff’s counsel not only demonstrated a lack of professional courtesy, but she has
27 needlessly wasted time that could have been better spent preparing the discovery responses, and
28 has prevailed upon the Court when judicial resources are particularly limited at this time.
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1 B. Sanctions Are Not Appropriate in a Case of Inadvertence Such as This, and the
Conduct of Plaintiff’s Counsel in Bringing This Motion Must Not Be Rewarded or
2 Condoned.
3
Pursuant to Code of Civil Procedure Section 2033.290(c), sanctions are not appropriate
4
where counsel acted with substantial justification or other circumstances make the imposition of
5
the sanction unjust. In this case, counsel for Uber/Rasier’s inadvertently missing the pending
6
discovery responses when the file was transferred from her prior law firm amounts to substantial
7
justification for responses not have been served on the due date. It would be a gross injustice to
8
penalize Uber/Rasier and/or their counsel for a mistake resulting from the electronic transfer of
9
the case file from Uber/Rasier’s counsel’s prior law firm to her current law firm. Sanctions would
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only condone the lack of professionalism plaintiff’s counsel has demonstrated in refusing to
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provide an extension of time for Uber/Rasier’s discovery responses. It would also condone her
12
conduct in rushing to the Courthouse to file her Motion. This conduct should not be rewarded.
13
C. Plaintiff’s Counsel Failed to Demonstrate Professional Courtesy as Encouraged by
14 This Court.
15 This Court provides guidelines for professionalism. The Guidelines, found on the Court’s
16 website provide the following guidance that attorneys should grant a reasonable request for
17 opposing counsel for an extension of time to respond to discovery, as follows:
18 SECTION IV. CONTINUANCES AND EXTENSIONS OF TIME
19 Consistent with existing law and court orders, an attorney should grant a reasonable request
by opposing counsel for an extension of time within which to respond to a pleading,
20 discovery, and other matters, when such an extension will not prejudice his or her client or
unduly delay a proceeding.
21
https://sfsuperiorcourt.org/general-info/guidelines-professional-conduct
22
23 As set forth above, Uber/Rasier’s counsel immediately contacted plaintiff’s counsel when
24 she discovered there had been an oversight. Uber/Rasier’s counsel requested a short extension of
25 time to prepare responses to twelve separate sets of discovery, which were served on Uber/Rasier’s
26 counsel’s prior law firm. Rather than grant the request, plaintiff’s counsel filed this Motion as well
27 as a Motion to Compel. Plaintiff’s counsel not only demonstrated a lack of professional courtesy,
28 but she has needlessly wasted time that could have been better spent preparing the discovery
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OPPOSITION TO PLAINTIFF’S MOTION FOR ORDER DEEMING ADMITTED TRUTH OF FACTS AND
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1 responses, and has prevailed upon the Court when judicial resources are particularly limited at this
2 time. Plaintiff’s counsel has offered no reason other than that there is a trial date set in this case
3 for late September, 2020. This case has been pending since May, 2019. Plaintiff had ample time
4 to serve discovery. In any event, there is ample time to conduct further discovery and investigation
5 should plaintiff’s counsel feel the need to do so. Plaintiff’s Motion should be denied, and the
6 request by plaintiff’s counsel to impose sanctions should also be denied.
7 IV. CONCLUSION
8 The Court is vested with authority to deny plaintiff’s Motion on the basis of excusable
9 inadvertence resulting from a change of law firm’s by Uber/Rasier’s counsel. Because
10 Uber/Rasier’s counsel was not aware of the pending discovery requests, due to missing the
11 transmission from her prior law firm, there was a mistake which amounts to inadvertence. There
12 is statutory grounds to deny plaintiff’s motion on this basis alone. Moreover, plaintiff’s counsel’s
13 refusal to grant an extension of time, when Uber/Rasier’s counsel asked for one in this case of
14 excusable mistake, amounts to a violation of the Court’s own Guidelines for attorney
15 professionalism. This conduct should not be encouraged.
16 Respectfully submitted,
17 Dated: March 23, 2020 WILSON ELSER MOSKOWITZ
EDELMAN & DICKER, LLP
18
19
By:
20 NICOLAS MARTIN
NATASHA ZASLOVE
21 Attorneys for Defendants
UBER TECHNOLOGIES, INC., RASIER,
22 LLC, and RASIER-CA, LLC
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OPPOSITION TO PLAINTIFF’S MOTION FOR ORDER DEEMING ADMITTED TRUTH OF FACTS AND
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1 PROOF OF SERVICE
Fumarola v. Uber Technologies, Inc., et al
2 San Francisco County Case No. CGC-19-575826
3 I, the undersigned, am employed in the county of San Francisco, State of California. I am
over the age of 18 and not a party to the within action; my business address is 525 Market Street,
4 17th Floor, San Francisco CA 94105.
5 On the date indicated below, I caused to be served the following document(s) described as
follows:
6
DEFENDANTS UBER TECHNOLOGIES, INC., RASIER, LLC AND RASIER-
7 CA, LLC’S OPPOSITION TO PLAINTIFF’S MOTION FOR ORDER DEEMING
ADMITTED TRUTH OF FACTS AND GENUINENESS OF DOCUMENTS AND
8 IMPOSING MONETARY SANCTIONS AGAINST DEFENDANTS AND/OR
THEIR ATTORNEYS OF RECORD IN THE AMOUNT OF $1,800
9
: PERSONAL SERVICE - I served the documents by placing them in an envelope or
10 package addressed to the persons at the addresses listed below, and providing them to a
professional messenger service for service. (A confirmation by the messenger will be
11 provided to our office after the documents have been delivered.)
12 : BY MAIL - As follows: I am “readily familiar” with the firm’s practice of collection and
processing correspondence for mailing. Under that practice it would be deposited with the
13 U.S. Postal Service on that same day with postage thereon fully prepaid at San Francisco,
California in the ordinary course of business. The envelope was sealed and placed for
14 collection and mailing on this date following our ordinary practices. I am aware that on
motion of the party served, service is presumed invalid if postal cancellation date or postage
15 meter date is more than one day after date of deposit for mailing in affidavit.
16 : OVERNIGHT MAIL - As follows: I am “readily familiar” with the firm’s practice of
processing correspondence for mailing overnight via Federal Express. Under that practice
17 it would be deposited in a Federal Express drop box, indicating overnight delivery, with
delivery fees provided for, on that same day, at San Francisco, California.
18
: BY E-MAIL - Based on a court order or an agreement of the parties to accept service by
19 e-mail or electronic transmission, I caused the documents to be sent to the persons at the e-
mail addresses listed below. I did not receive, within a reasonable time after the
20 transmission, any electronic message or other indication that the transmission was
unsuccessful. (Served via Email to comply with Shelter In Place Order due to
21 Coronavirus.)
22 : BY ELECTRONIC TRANSMISSION – By causing the document(s) listed above to be
electronically filed and served on designated recipients through the Electronic Case Filing
23 system for the above-entitled case. The file transmission was reported as successful and a
copy of the Electronic Case Filing Receipt will be maintained with the original document(s)
24 in our office.
25 Executed on March 23, 2020, at San Francisco, California. I declare under penalty of
perjury under the laws of the State of California, that the above is true and correct.
26
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28 Marilee Barlow
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1 SERVICE LIST
2 Tanya Fomerman Bradley Zamczyk
Robert Hester Hinshaw Law
3 Law offices of Tanya Gomerman One California Street, 18th Floor
601 Van Ness Avenue, Ste. 2052 San Francisco CA 94111
4 San Francisco CA 94102 T: 415-362-6000
T: 415-545-8608 E: bzamczyk@hinshawlaw.com
5 F: 855-545-8608
E: attorneytanya@gmail.com Attorney for Defendant
6 E: robert@attorneytanya.com Mariann Clark
7 Attorneys for Plaintiff
Adam Fumarola
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1 NICOLAS MARTIN (SBN 267708) Nicolas.martin@wilsonelser.com 2 NATASHA ZASLOVE (SBN 178917) natasha.zaslove@wilsonelser.com 3 WILSON, ELSER, MOSKOWITZ ELECTRONICALLY EDELMAN & DICKER LLP F I L E D 4 525 Market Street, 17th Floor Superior Court of California, County of San Francisco San Francisco, Ca 94105 5 Telephone: (415) 433-0990 03/23/2020 Facsimile: (415) 434-1370 Clerk of the Court BY: ERNALYN BURA 6 Deputy Clerk Attorneys for Defendants, 7 UBER TECHNOLOGIES, INC., RASIER, LLC and RASIER-CA, LLC 8 9 SUPERIOR COURT OF THE STATE OF CALIFORNIA 10 COUNTY OF SAN FRANCISCO 11 ADAM FUMAROLA, an individual, Case No. CGC-19-575826 12 Plaintiff, DEFENDANTS UBER TECHNOLOGIES, INC., RASIER, LLC AND RASIER-CA, 13 v. LLC’S OPPOSITION TO PLAINTIFF’S MOTION FOR ORDER DEEMING 14 UBER TECHNOLOGIES, INC., a Delaware ADMITTED TRUTH OF FACTS AND Corporation; RASIER, LLC, a Delaware GENUINENESS OF DOCUMENTS AND 15 Limited Liability Company; RASIER-CA, IMPOSING MONETARY SANCTIONS LLC, a Delaware Limited Liability Company; AGAINST DEFENDANTS AND/OR 16 MARIANN CLARK, an individual, and DOES THEIR ATTORNEYS OF RECORD IN 1 through 30, inclusive, THE AMOUNT OF $1,800 17 Defendants. DATE: 04/06/20 18 TIME: 9:00 AM DEPT.: 302 19 COMPLAINT: 05/08/19 20 TRIAL: TBD 21 22 23 Defendants UBER TECHNOLOGIES, INC., RASIER, LLC. AND RASIER-CA, LLC 24 respectfully oppose Plaintiff’s Motion for reasons that were beyond Defendants’ control as 25 explained herein, and request the Court deny Plaintiff’s Motion outright on the ground that there 26 was an honest and understandable mistake. 27 /// 28 /// 1 OPPOSITION TO PLAINTIFF’S MOTION FOR ORDER DEEMING ADMITTED TRUTH OF FACTS AND GENUINENESS OF DOCUMENTS 2366679v.1 1 I. INTRODUCTION 2 Due to a change in employment by counsel representing Defendants Uber Technologies, 3 Inc., Rasier, LLC and Rasier-CA, LLC (“Uber/Rasier”) in this lawsuit, Uber/Rasier’s counsel was 4 not aware of the twelve sets of discovery requests plaintiff’s counsel served on Uber/Rasier’s prior 5 law firm. When she became aware of the discovery requests, counsel for Uber/Rasier immediately 6 contacted plaintiff’s counsel to apprise plaintiff’s counsel of having missed the discovery requests 7 due to switching employers. Rather than agree to accept responses with objections, plaintiff’s 8 counsel refused and rushed to the Courthouse with a motion to have facts deemed admitted and 9 genuineness of documents established, and to demand sanctions. 10 The law makes allowances for inadvertence in cases such as this, where a clerical or 11 technical issue resulted in an oversite. Plaintiff’s counsel must not be permitted to exploit an 12 inadvertence resulting from the transfer of a file from one law firm to another. Doing so would 13 result in an injustice to Uber/Rasier and would allow plaintiff’s counsel to profit from an 14 understandable mistake. It would also condone unprofessional conduct not befitting the profession. 15 Such conduct is specifically discouraged by this Court in its Guidelines of Professional Conduct. 16 II. STATEMENT OF FACTS 17 Defendants are currently represented by Natasha K. Zaslove, Of Counsel at Wilson Elser. 18 (Declaration of Natasha K. Zaslove, ¶1.) Uber/Rasier were previously represented by Ms. Zaslove 19 in her capacity as an associate at Tyson & Mendes. (Zaslove Decl. ¶2.) On January 30, 2020, Ms. 20 Zaslove, left Tyson & Mendes, and she joined Wilson Elser on February 3, 2020. (Zaslove Decl., 21 ¶3.) According to the proof of service accompanying the Request for Admissions at issue, the 22 Request for Admissions was served on Tyson & Mendes on January 28, 2020. (Zaslove Decl., ¶ 23 4.) On her last day at Tyson & Mendes, Ms. Zaslove was not aware of the Request for Admissions 24 and did not receive the Request for Admissions prior to her departure from Tyson & Mendes. 25 (Zaslove Decl. ¶5.) Tyson & Mendes sent a DropBox link transferring the file in this case to Wilson 26 Elser on February 11, 2020. (Zaslove Decl., ¶6.) 27 /// 28 /// 2 OPPOSITION TO PLAINTIFF’S MOTION FOR ORDER DEEMING ADMITTED TRUTH OF FACTS AND GENUINENESS OF DOCUMENTS 2366679v.1 1 Due to inadvertence, Ms. Zaslove was not aware of the pending discovery requests until 2 March 9, 2019, when she specifically reviewed the discovery file contained in the DropBox file 3 transfer link provided by Tyson & Mendes. (Zaslove Decl., ¶ 7.) On that date, March 9, 2020, 4 upon noting that discovery responses were overdue, Ms. Zaslove immediately telephoned 5 plaintiff’s counsel to request an extension of time to respond to discovery on behalf of Uber/Rasier. 6 (Zaslove Decl., ¶ 8.) Plaintiff’s counsel’s associate Robert Hester, stated an extension of time 7 would likely be forthcoming, but he needed to discuss with his boss Tanya. (Zaslove Decl., ¶ 9.) 8 Ms. Zaslove followed up the telephone call with an email, which explained as follows: 9 Hello Robert, 10 Thank you for your time on the phone today. Attached please find the 11 Association of Counsel for my new firm Wilson Elser. As discussed, I just learned today 12 that discovery was due on this case, as the requests from your office appear to have 13 come to my prior firm when I was exiting. 14 I only saw the discovery today, when I opened a dropbox link that was sent by 15 my prior firm on 2/11, but which I did not see until today. 16 Please letme know ifin light of the circumstances, we may have a 30-day 17 extension of time to respond to discovery. 18 (Zaslove Decl., ¶ 10.) 19 Later that same day on March 9, 2020, Uber/Rasier’s counsel received an email from 20 plaintiff’s counsel stating that she would accept responses without objections. (Zaslove Decl., ¶ 21 11.) On March 10, 2020, Uber/Rasier’s counsel responded to plaintiff’s counsel that she would 22 serve responses with objections as Uber/Rasier were entitled to do. (Zaslove Decl., ¶ 12.) Later 23 that day, on March 10, 2020, plaintiff’s counsel wrote that she would pursue a motion to compel 24 unless Uber/Rasier’s counsel confirmed by end of day that she would serve responses without 25 objections. (Zaslove Decl., ¶ 13.) Later that same day on March 10, 2020, before Uber/Rasier’s 26 counsel could respond to the email, plaintiff’s counsel sent an email stating that because she had 27 not heard from Uber/Rasier’s counsel, she assumed Uber/Rasier’s counsel was not agreeing to 28 produce responses without objections, and she stated she would immediately file motions to 3 OPPOSITION TO PLAINTIFF’S MOTION FOR ORDER DEEMING ADMITTED TRUTH OF FACTS AND GENUINENESS OF DOCUMENTS 2366679v.1 1 compel. (Zaslove Decl., ¶ 14.) 2 On March 12, 2020, at 3:42 p.m., Uber/Rasier’s counsel wrote PC as follows: 3 Hello Tanya, 4 As conveyed in my last email to you, we will serve discovery responses on behalf 5 of Uber/Rasier, together with our objections. It would be a waste of judicial resources for 6 you to prevail upon the Court in this situation which was a clerical/technical error. 7 According to your proofs of service, you served the discovery request on my prior 8 law firm by mail on January 28, 2020. My last day of employment at my prior firm was 9 January 30, 2020. To my knowledge, the discovery requests had not arrived at my prior firm 10 when I departed. A February 11, 2020 email from my prior firm transmitted the case file to 11 my current firm. That email was either lost or delayed due to a technology issue. I also did 12 not receive my prior firm’s calendar entries for due dates for responses to your discovery 13 requests. As I previously informed you and your associate Robert, I only located and 14 became aware of the discovery requests a few days ago on March 9, 2020. 15 This is a case of inadvertence pursuant to Code of Civil Procedure Section 16 2031.300(a)(2). If we are required to pursue a motion for relief from waiver, or if you file a 17 motion to compel, you will needlessly waste the Court’s time. We therefore appreciate your 18 anticipated cooperation and courtesy in not insisting the objections are deemed waived, and 19 we plan to serve responses together with objections as soon as possible. 20 (Zaslove Decl., ¶ 15.) 21 On Thursday March 12 at 4:08 p.m., just after Uber/Rasier’s counsel sent the above email, 22 her office’s receptionist sent her an email containing plaintiff’s motions, which were hand served 23 that day. (Zaslove Decl., ¶ 16.) 24 Uber/Rasier’s counsel attempted to further meet and confer with plaintiff’s counsel to 25 further explain the inadvertence and to request plaintiff’s counsel withdraw her Motion, and 26 Uber/Rasier’s counsel sent an email to this effect on March 17, 2020. (Zaslove Decl., ¶ 17.) To 27 date, plaintiff’s counsel has not agreed to withdraw the Motion. (Zaslove Decl., ¶ 18.) 28 /// 4 OPPOSITION TO PLAINTIFF’S MOTION FOR ORDER DEEMING ADMITTED TRUTH OF FACTS AND GENUINENESS OF DOCUMENTS 2366679v.1 1 As of the date of this Opposition, Uber/Rasier’s counsel is preparing responses to the 2 twelve sets of Discovery Requests plaintiff’s counsel served, and which Uber/Rasier’s counsel 3 first became aware on March 9, 2020. Uber/Rasier’s counsel plans to serve responses as soon as 4 possible pending client review and approval. (Zaslove Decl., ¶ 19.) 5 III. LEGAL DISCUSSION 6 A. The Court Has Authority to Deny the Motion Because of Excusable Neglect and 7 Inadvertence Resulting from Uber/Rasier’s Counsel Switching Law Firms. 8 Pursuant to Code of Civil Procedure Section 2033.300, this Court is vested with authority 9 to deny a motion to deem facts admitted based on a showing of mistake, inadvertence, or excusable 10 neglect. See Wilcox v. Birtwhistle (1999) 21 Cal. 4th 973, 978 (The court may permit withdrawal 11 of an admission if it determines the admission was the result of mistake, inadvertence, or excusable 12 neglect, and that the party who obtained the admission will not be substantially prejudiced in 13 maintaining that party's action or defense on the merits.) Moreover, “…any doubts in applying 14 section 2033.300 must be resolved in favor of the party seeking relief.” New Albertsons, Inc. v. 15 Superior Court (2008) 168 Cal. App. 4th 1403, 1420-1421. 16 In this case, there is a clear showing of inadvertence due to the move by Uber/Rasier’s 17 counsel from her prior firm to her current firm. The discovery requests at issue were served by 18 mail on January 28, 2020, according to the accompanying proof of service. Counsel for 19 Uber/Rasier departed her prior law firm on January 30, 2020, and did not see the discovery requests 20 prior to departing her prior firm. There is no indication the discovery requests arrived at her prior 21 law firm before her departure. Counsel for Uber/Rasier only became aware of the discovery 22 requests on March 9, 2020. These facts amount to inadvertence and excusable neglect. 23 Uber/Rasier’s counsel immediately contacted plaintiff’s counsel on that same date, March 24 9, 2020, to explain the situation and to request a short extension of time to prepare and serve 25 responses. Rather than grant the request, plaintiff’s counsel filed this Motion as well as a Motion 26 to Compel. Plaintiff’s counsel not only demonstrated a lack of professional courtesy, but she has 27 needlessly wasted time that could have been better spent preparing the discovery responses, and 28 has prevailed upon the Court when judicial resources are particularly limited at this time. 5 OPPOSITION TO PLAINTIFF’S MOTION FOR ORDER DEEMING ADMITTED TRUTH OF FACTS AND GENUINENESS OF DOCUMENTS 2366679v.1 1 B. Sanctions Are Not Appropriate in a Case of Inadvertence Such as This, and the Conduct of Plaintiff’s Counsel in Bringing This Motion Must Not Be Rewarded or 2 Condoned. 3 Pursuant to Code of Civil Procedure Section 2033.290(c), sanctions are not appropriate 4 where counsel acted with substantial justification or other circumstances make the imposition of 5 the sanction unjust. In this case, counsel for Uber/Rasier’s inadvertently missing the pending 6 discovery responses when the file was transferred from her prior law firm amounts to substantial 7 justification for responses not have been served on the due date. It would be a gross injustice to 8 penalize Uber/Rasier and/or their counsel for a mistake resulting from the electronic transfer of 9 the case file from Uber/Rasier’s counsel’s prior law firm to her current law firm. Sanctions would 10 only condone the lack of professionalism plaintiff’s counsel has demonstrated in refusing to 11 provide an extension of time for Uber/Rasier’s discovery responses. It would also condone her 12 conduct in rushing to the Courthouse to file her Motion. This conduct should not be rewarded. 13 C. Plaintiff’s Counsel Failed to Demonstrate Professional Courtesy as Encouraged by 14 This Court. 15 This Court provides guidelines for professionalism. The Guidelines, found on the Court’s 16 website provide the following guidance that attorneys should grant a reasonable request for 17 opposing counsel for an extension of time to respond to discovery, as follows: 18 SECTION IV. CONTINUANCES AND EXTENSIONS OF TIME 19 Consistent with existing law and court orders, an attorney should grant a reasonable request by opposing counsel for an extension of time within which to respond to a pleading, 20 discovery, and other matters, when such an extension will not prejudice his or her client or unduly delay a proceeding. 21 https://sfsuperiorcourt.org/general-info/guidelines-professional-conduct 22 23 As set forth above, Uber/Rasier’s counsel immediately contacted plaintiff’s counsel when 24 she discovered there had been an oversight. Uber/Rasier’s counsel requested a short extension of 25 time to prepare responses to twelve separate sets of discovery, which were served on Uber/Rasier’s 26 counsel’s prior law firm. Rather than grant the request, plaintiff’s counsel filed this Motion as well 27 as a Motion to Compel. Plaintiff’s counsel not only demonstrated a lack of professional courtesy, 28 but she has needlessly wasted time that could have been better spent preparing the discovery 6 OPPOSITION TO PLAINTIFF’S MOTION FOR ORDER DEEMING ADMITTED TRUTH OF FACTS AND GENUINENESS OF DOCUMENTS 2366679v.1 1 responses, and has prevailed upon the Court when judicial resources are particularly limited at this 2 time. Plaintiff’s counsel has offered no reason other than that there is a trial date set in this case 3 for late September, 2020. This case has been pending since May, 2019. Plaintiff had ample time 4 to serve discovery. In any event, there is ample time to conduct further discovery and investigation 5 should plaintiff’s counsel feel the need to do so. Plaintiff’s Motion should be denied, and the 6 request by plaintiff’s counsel to impose sanctions should also be denied. 7 IV. CONCLUSION 8 The Court is vested with authority to deny plaintiff’s Motion on the basis of excusable 9 inadvertence resulting from a change of law firm’s by Uber/Rasier’s counsel. Because 10 Uber/Rasier’s counsel was not aware of the pending discovery requests, due to missing the 11 transmission from her prior law firm, there was a mistake which amounts to inadvertence. There 12 is statutory grounds to deny plaintiff’s motion on this basis alone. Moreover, plaintiff’s counsel’s 13 refusal to grant an extension of time, when Uber/Rasier’s counsel asked for one in this case of 14 excusable mistake, amounts to a violation of the Court’s own Guidelines for attorney 15 professionalism. This conduct should not be encouraged. 16 Respectfully submitted, 17 Dated: March 23, 2020 WILSON ELSER MOSKOWITZ EDELMAN & DICKER, LLP 18 19 By: 20 NICOLAS MARTIN NATASHA ZASLOVE 21 Attorneys for Defendants UBER TECHNOLOGIES, INC., RASIER, 22 LLC, and RASIER-CA, LLC 23 24 25 26 27 28 7 OPPOSITION TO PLAINTIFF’S MOTION FOR ORDER DEEMING ADMITTED TRUTH OF FACTS AND GENUINENESS OF DOCUMENTS 2366679v.1 1 PROOF OF SERVICE Fumarola v. Uber Technologies, Inc., et al 2 San Francisco County Case No. CGC-19-575826 3 I, the undersigned, am employed in the county of San Francisco, State of California. I am over the age of 18 and not a party to the within action; my business address is 525 Market Street, 4 17th Floor, San Francisco CA 94105. 5 On the date indicated below, I caused to be served the following document(s) described as follows: 6 DEFENDANTS UBER TECHNOLOGIES, INC., RASIER, LLC AND RASIER- 7 CA, LLC’S OPPOSITION TO PLAINTIFF’S MOTION FOR ORDER DEEMING ADMITTED TRUTH OF FACTS AND GENUINENESS OF DOCUMENTS AND 8 IMPOSING MONETARY SANCTIONS AGAINST DEFENDANTS AND/OR THEIR ATTORNEYS OF RECORD IN THE AMOUNT OF $1,800 9 : PERSONAL SERVICE - I served the documents by placing them in an envelope or 10 package addressed to the persons at the addresses listed below, and providing them to a professional messenger service for service. (A confirmation by the messenger will be 11 provided to our office after the documents have been delivered.) 12 : BY MAIL - As follows: I am “readily familiar” with the firm’s practice of collection and processing correspondence for mailing. Under that practice it would be deposited with the 13 U.S. Postal Service on that same day with postage thereon fully prepaid at San Francisco, California in the ordinary course of business. The envelope was sealed and placed for 14 collection and mailing on this date following our ordinary practices. I am aware that on motion of the party served, service is presumed invalid if postal cancellation date or postage 15 meter date is more than one day after date of deposit for mailing in affidavit. 16 : OVERNIGHT MAIL - As follows: I am “readily familiar” with the firm’s practice of processing correspondence for mailing overnight via Federal Express. Under that practice 17 it would be deposited in a Federal Express drop box, indicating overnight delivery, with delivery fees provided for, on that same day, at San Francisco, California. 18 : BY E-MAIL - Based on a court order or an agreement of the parties to accept service by 19 e-mail or electronic transmission, I caused the documents to be sent to the persons at the e- mail addresses listed below. I did not receive, within a reasonable time after the 20 transmission, any electronic message or other indication that the transmission was unsuccessful. (Served via Email to comply with Shelter In Place Order due to 21 Coronavirus.) 22 : BY ELECTRONIC TRANSMISSION – By causing the document(s) listed above to be electronically filed and served on designated recipients through the Electronic Case Filing 23 system for the above-entitled case. The file transmission was reported as successful and a copy of the Electronic Case Filing Receipt will be maintained with the original document(s) 24 in our office. 25 Executed on March 23, 2020, at San Francisco, California. I declare under penalty of perjury under the laws of the State of California, that the above is true and correct. 26 27 28 Marilee Barlow 8 OPPOSITION TO PLAINTIFF’S MOTION FOR ORDER DEEMING ADMITTED TRUTH OF FACTS AND GENUINENESS OF DOCUMENTS 2366679v.1 1 SERVICE LIST 2 Tanya Fomerman Bradley Zamczyk Robert Hester Hinshaw Law 3 Law offices of Tanya Gomerman One California Street, 18th Floor 601 Van Ness Avenue, Ste. 2052 San Francisco CA 94111 4 San Francisco CA 94102 T: 415-362-6000 T: 415-545-8608 E: bzamczyk@hinshawlaw.com 5 F: 855-545-8608 E: attorneytanya@gmail.com Attorney for Defendant 6 E: robert@attorneytanya.com Mariann Clark 7 Attorneys for Plaintiff Adam Fumarola 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 9 OPPOSITION TO PLAINTIFF’S MOTION FOR ORDER DEEMING ADMITTED TRUTH OF FACTS AND GENUINENESS OF DOCUMENTS 2366679v.1