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1 DANIEL RODRIGUEZ, ESQ., SBN 096625
JOEL T. ANDREESEN, ESQ., SBN 152254
2 JOSEPH WHITTINGTON, ESQ., SBN 295516
RODRIGUEZ & ASSOCIATES,
3 A PROFESSIONAL LAW CORPORATION
1128 TRUXTUN AVE.
4 BAKERSFIELD, CA 93301
PHONE (661) 323-1400 FAX (661) 323-0132
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Attorneys for Plaintiffs
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SUPERIOR COURT OF CALIFORNIA, COUNTY OF KERN
METROPOLITAN DIVISION
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ALAN SCOTT HAIR; MARY CHARLES ) Case No.: BCV-18-100592-TSC
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HAIR, )
)
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Plaintiffs, ) PLAINTIFFS’ REPLY TO
13 ) OPPOSITION TO MOTION
) FOR SANCTIONS
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vs. )
)
15 ) Complaint Filed: March 13, 2018
CITA DEVELOPMENT, INC.; ROBERT E. ) Trial Date: March 28, 2022
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BELL; JUICY BURGER CORPORATION )
)
17 (DOE 1); 3MB, LLC (DOE 2); and DOES 3 )
to 100, Inclusive, )_ TIME: 8:30 AM
18 ) DATE: NOVEMBER 14, 2022
) DEPT: 17
19 Defendants. )
)
20 AND ALL RELATED CROSS ACTIONS )
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22 I. THE LOST VIDEO IS NOT ONLY THE DEFENDANTS’ LOSS.
23 Defendants’ reply assumes that the video could only show evidence that would be
24 favorable to the Defense. According to them, the loss of the video could only hurt
25 Defendants. In fact they assert “There is no detriment to Plaintiffs.”
26 Defendants do not address the situation where the lost video could contain
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favorable evidence for Plaintiff. That favorable evidence could have been enough to
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defeat Defendants’ affirmative defenses arguing that Plaintiff was negligent. Even if
PLAINTIFFS’ REPLY
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Defendants are precluded from mentioning what they saw on the video, the parties will
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not be on an even playing field because the ability of Plaintiff to use the video to rebut
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affirmative defenses was taken.
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Defendant argues that since the videotape was not intentionally lost, they should be
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penalized for not being able to produce it. However Defendant Bell admitted he had
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possession of the video, discussed it with his employee, and saved it on a thumb drive
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because he knew it would be important. While Plaintiffs are not able to prove Defendant
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Bell intentionally lost the video the timeline makes losing an important piece of evidence
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suspect:
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(1) Injury was captured on videotape on January 2, 2018.
12 (2) Plaintiffs sent Cita Development, Attention of Robert Bell, a preservation of
13 evidence letter on February 28, 2018.
14 (3) Plaintiffs filed their Complaint on March 13, 2018
15 (4) Plaintiffs sent 3MB, Attention of Robert Bell, a preservation of evidence letter
16 on Mary 1, 2018.
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18 II. A PRIOR ORDER TO COMEPL IS NOT REQUIRED.
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Defendants argue that Plaintiffs should have obtained a court order to compel the
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production of the video in one hand, while at the same time arguing that since the video
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has been lost such an order would have been useless. Furthermore, Defendants admit that
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“a prior order my not be necessary where it is reasonably clear that obtaining such an
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order would be futile.” New Albertsons v. Superior Court (2008) 168 Cal.App.4th 1403,
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1426. The discovery responses have been clear that Defendants assert they are no longer
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in possession of the video, therefore an order to compel the video would not produce a
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different result.
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PLAINTIFFS’ REPLY
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III. CONCLUSION
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Plaintiffs have been prejudiced by the loss of the video. The video was in the sole
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possession of the Defendants. The Defendants were the only ones to view it after they
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were aware of Plaintiff’s injury. The court should grant the motion.
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DATED: November 4, 2022 RODRIGUEZ & ASSOCIATES
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9 By: ______________________________
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JOSEPH WHITTINGTON, ESQ.
Attorney for Plaintiff
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PLAINTIFFS’ REPLY
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PROOF OF SERVICE
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STATE OF CALIFORNIA, COUNTY OF KERN
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I am employed in the County of Kern, State of California. I am over the age of 18
5 and not a party to the within action; my business address is 1128 Truxtun Avenue,
Bakersfield, California 93301
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7 On November 4, 2022, I served the foregoing document described as follows:
PLAINTIFFS’ REPLY TO OPOSITION TO MOTION FOR SANCTIONS
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X by placing the true copies thereof
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by placing the original
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addressed as follows:
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12 BY MAIL - I enclosed such document in a sealed envelope and caused such
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envelope to be deposited in the mail at Bakersfield, California. The envelope was mailed
with postage thereon fully prepaid. I am “readily familiar” with this firm’s practice of
14 collection and processing of correspondence for mailing. It is deposited with the U.S.
15 Postal Service on that same day in the ordinary course of business. I am aware that on
motion of party, service is presumed invalid if postal cancellation date or postage meter date
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is more than one day after date of deposit for mailing affidavit.
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BY OVERNIGHT DELIVERY - I enclosed such document in a sealed envelope
and caused it to be deposited in a box or other facility regularly maintained by the express
19 service carrier, or delivered to an authorized courier or driver authorized by the express
20 service carrier to receive documents, in an envelope or package designated by the express
service carrier with delivery fees paid or provided for, addressed to the person on whom it is
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to be served, at the office address as last given by that person.
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BY FACSIMILE - I caused such document to be transmitted to a facsimile machine
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maintained by the person on whom it is served at the facsimile machine telephone number
24 as last given by that person.
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BY PERSONAL SERVICE - I enclosed such document in a sealed envelope and
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caused it to be delivered by hand to the offices of the addressee(s).
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X BY ELECTRONIC MAIL - I caused the above-referenced document to be
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delivered to the e-mail address as noted.
PLAINTIFFS’ REPLY
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Executed on November 4, 2022, at Bakersfield, California.
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X (State) I declare under penalty of perjury under the laws of the State of
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California that the above is true and correct.
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6 STEPHANIE LOPEZ
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PLAINTIFFS’ REPLY
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SERVICE LIST
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Mary E. Ashcraft, Esq. Attorneys for Defendants/Cross-
4 Elizabeth A. Thomasian, Esq. Complainants:
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CHURCH LAW GROUP, INC. 3MB, LLC and Robert E. Bell
802 West Pinedale Avenue, Suite 104
6 Fresno, CA 93711
7 eservice@churh-law.com
mashcraft@church-law.com
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ethomasian@church-law.com
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mlujan@church-law.com
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Jody Steinberg, Esq. Attorneys for Defendant:
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Nicholas S. Walls, Esq. Juicy Burger Corporation and
12 Hanger, Steinberg, Shapiro & Ash, ALC Mohamed Muthana, Jr.
13 LOS ANGELES • Inland Empire •
Bakersfield
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21031 Ventura Blvd, Suite 800,
15 Woodland Hills, CA 91364
direct (818) 206-0216
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nsw@hssalaw.com
17 js@hssalaw.com
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Nathan M. Hodges, Esq. Attorneys for Defendant:
Hodges Law Group Treble LLC
20 1925 G Street
21 Bakersfield, CA 93301
Nathan@hodges-lawgroup.com
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kelly@hodges-lawgroup.com
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24 CITA Development, Inc.
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1201 24th Street, Ste. 210
Bakersfield, CA 93301
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PLAINTIFFS’ REPLY
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Preview
1 DANIEL RODRIGUEZ, ESQ., SBN 096625 JOEL T. ANDREESEN, ESQ., SBN 152254 2 JOSEPH WHITTINGTON, ESQ., SBN 295516 RODRIGUEZ & ASSOCIATES, 3 A PROFESSIONAL LAW CORPORATION 1128 TRUXTUN AVE. 4 BAKERSFIELD, CA 93301 PHONE (661) 323-1400 FAX (661) 323-0132 5 Attorneys for Plaintiffs 6 7 8 SUPERIOR COURT OF CALIFORNIA, COUNTY OF KERN METROPOLITAN DIVISION 9 10 ALAN SCOTT HAIR; MARY CHARLES ) Case No.: BCV-18-100592-TSC 11 HAIR, ) ) 12 ) Plaintiffs, ) PLAINTIFFS’ REPLY TO 13 ) OPPOSITION TO MOTION ) FOR SANCTIONS 14 vs. ) ) 15 ) Complaint Filed: March 13, 2018 CITA DEVELOPMENT, INC.; ROBERT E. ) Trial Date: March 28, 2022 16 BELL; JUICY BURGER CORPORATION ) ) 17 (DOE 1); 3MB, LLC (DOE 2); and DOES 3 ) to 100, Inclusive, )_ TIME: 8:30 AM 18 ) DATE: NOVEMBER 14, 2022 ) DEPT: 17 19 Defendants. ) ) 20 AND ALL RELATED CROSS ACTIONS ) 21 22 I. THE LOST VIDEO IS NOT ONLY THE DEFENDANTS’ LOSS. 23 Defendants’ reply assumes that the video could only show evidence that would be 24 favorable to the Defense. According to them, the loss of the video could only hurt 25 Defendants. In fact they assert “There is no detriment to Plaintiffs.” 26 Defendants do not address the situation where the lost video could contain 27 favorable evidence for Plaintiff. That favorable evidence could have been enough to 28 defeat Defendants’ affirmative defenses arguing that Plaintiff was negligent. Even if PLAINTIFFS’ REPLY 1 1 Defendants are precluded from mentioning what they saw on the video, the parties will 2 not be on an even playing field because the ability of Plaintiff to use the video to rebut 3 affirmative defenses was taken. 4 Defendant argues that since the videotape was not intentionally lost, they should be 5 penalized for not being able to produce it. However Defendant Bell admitted he had 6 possession of the video, discussed it with his employee, and saved it on a thumb drive 7 because he knew it would be important. While Plaintiffs are not able to prove Defendant 8 Bell intentionally lost the video the timeline makes losing an important piece of evidence 9 10 suspect: 11 (1) Injury was captured on videotape on January 2, 2018. 12 (2) Plaintiffs sent Cita Development, Attention of Robert Bell, a preservation of 13 evidence letter on February 28, 2018. 14 (3) Plaintiffs filed their Complaint on March 13, 2018 15 (4) Plaintiffs sent 3MB, Attention of Robert Bell, a preservation of evidence letter 16 on Mary 1, 2018. 17 18 II. A PRIOR ORDER TO COMEPL IS NOT REQUIRED. 19 Defendants argue that Plaintiffs should have obtained a court order to compel the 20 production of the video in one hand, while at the same time arguing that since the video 21 has been lost such an order would have been useless. Furthermore, Defendants admit that 22 “a prior order my not be necessary where it is reasonably clear that obtaining such an 23 order would be futile.” New Albertsons v. Superior Court (2008) 168 Cal.App.4th 1403, 24 1426. The discovery responses have been clear that Defendants assert they are no longer 25 in possession of the video, therefore an order to compel the video would not produce a 26 different result. 27 28 PLAINTIFFS’ REPLY 2 1 III. CONCLUSION 2 Plaintiffs have been prejudiced by the loss of the video. The video was in the sole 3 possession of the Defendants. The Defendants were the only ones to view it after they 4 were aware of Plaintiff’s injury. The court should grant the motion. 5 6 DATED: November 4, 2022 RODRIGUEZ & ASSOCIATES 7 8 9 By: ______________________________ 10 JOSEPH WHITTINGTON, ESQ. Attorney for Plaintiff 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PLAINTIFFS’ REPLY 3 1 PROOF OF SERVICE 2 3 STATE OF CALIFORNIA, COUNTY OF KERN 4 I am employed in the County of Kern, State of California. I am over the age of 18 5 and not a party to the within action; my business address is 1128 Truxtun Avenue, Bakersfield, California 93301 6 7 On November 4, 2022, I served the foregoing document described as follows: PLAINTIFFS’ REPLY TO OPOSITION TO MOTION FOR SANCTIONS 8 X by placing the true copies thereof 9 by placing the original 10 addressed as follows: 11 12 BY MAIL - I enclosed such document in a sealed envelope and caused such 13 envelope to be deposited in the mail at Bakersfield, California. The envelope was mailed with postage thereon fully prepaid. I am “readily familiar” with this firm’s practice of 14 collection and processing of correspondence for mailing. It is deposited with the U.S. 15 Postal Service on that same day in the ordinary course of business. I am aware that on motion of party, service is presumed invalid if postal cancellation date or postage meter date 16 is more than one day after date of deposit for mailing affidavit. 17 18 BY OVERNIGHT DELIVERY - I enclosed such document in a sealed envelope and caused it to be deposited in a box or other facility regularly maintained by the express 19 service carrier, or delivered to an authorized courier or driver authorized by the express 20 service carrier to receive documents, in an envelope or package designated by the express service carrier with delivery fees paid or provided for, addressed to the person on whom it is 21 to be served, at the office address as last given by that person. 22 BY FACSIMILE - I caused such document to be transmitted to a facsimile machine 23 maintained by the person on whom it is served at the facsimile machine telephone number 24 as last given by that person. 25 BY PERSONAL SERVICE - I enclosed such document in a sealed envelope and 26 caused it to be delivered by hand to the offices of the addressee(s). 27 X BY ELECTRONIC MAIL - I caused the above-referenced document to be 28 delivered to the e-mail address as noted. PLAINTIFFS’ REPLY 4 1 Executed on November 4, 2022, at Bakersfield, California. 2 X (State) I declare under penalty of perjury under the laws of the State of 3 California that the above is true and correct. 4 5 6 STEPHANIE LOPEZ 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PLAINTIFFS’ REPLY 5 1 SERVICE LIST 2 3 Mary E. Ashcraft, Esq. Attorneys for Defendants/Cross- 4 Elizabeth A. Thomasian, Esq. Complainants: 5 CHURCH LAW GROUP, INC. 3MB, LLC and Robert E. Bell 802 West Pinedale Avenue, Suite 104 6 Fresno, CA 93711 7 eservice@churh-law.com mashcraft@church-law.com 8 ethomasian@church-law.com 9 mlujan@church-law.com 10 Jody Steinberg, Esq. Attorneys for Defendant: 11 Nicholas S. Walls, Esq. Juicy Burger Corporation and 12 Hanger, Steinberg, Shapiro & Ash, ALC Mohamed Muthana, Jr. 13 LOS ANGELES • Inland Empire • Bakersfield 14 21031 Ventura Blvd, Suite 800, 15 Woodland Hills, CA 91364 direct (818) 206-0216 16 nsw@hssalaw.com 17 js@hssalaw.com 18 19 Nathan M. Hodges, Esq. Attorneys for Defendant: Hodges Law Group Treble LLC 20 1925 G Street 21 Bakersfield, CA 93301 Nathan@hodges-lawgroup.com 22 kelly@hodges-lawgroup.com 23 24 CITA Development, Inc. 25 1201 24th Street, Ste. 210 Bakersfield, CA 93301 26 27 28 PLAINTIFFS’ REPLY 6