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DEL RIO & CARICHOFF, P.C. 18 FEB -5 PH fig
Robert A, Carichoff (SBN 211066)
Daniel R. Del Rio (SBN 237968)
2335 American River Drive, Suite 200
Sacramento, California 95825
Telephone: (916) 378-4705
Facsimile: (916) 378-4706
Attorneys for Plaintiff
SUPERIOR COURT OF CALIFORNIA
COUNTY OF SAN JOAQUIN
JONI NUNES, Case No.: STK-CV-UPI-2017-2120
10 Plaintiff, PLAINTIFF’S REPLY BRIEF IN
SUPPORT OF MOTION FOR LEAVE
1 v. TO FILE SECOND AMENDED
COMPLAINT; AND
12 BESTCARE EXPRESS, INC. dba SUPPLEMENTAL DECLARATION
VANTAGE. TRANSPORTS,.ERIKA .. OF ROBERT A,.CARICHOFF. “
13 NUNES, and DOES | through 10,
inclusive, Date: February 21, 2018
14 Time: 9:00 a.m.
Defendants. Dept: 10C
15 Judge: Hon. Elizabeth Humphreys
16 Jury Trial Demanded
17
18 Defendant BESTCARE EXPRESS, INC. dba VANTAGE TRANSPORTS
19 (“Defendant”) opposes the underlying Motion based entirely upon Plaintiff JONI NUNES’
20 death. Her death, however, should have absolutely no bearing on the outcome of the instant
21 Motion, which seeks merely to amend the operative pleading as to one defendant’s name.
22 This Motion was filed on January 2, 2018. Two weeks later, on January 17, 2018,
23 Plaintiff died during surgery. (Defendant’s Exhibit A). This Motion solely addresses amending
24 the pleading to correctly name defendant, Erika Reyes. In that respect, Plaintiff's death is
25 totally irrelevant.
26 As set forth in Plaintiff's moving papers, judicial policy favors liberal amendment of
27 pleadings to allow for the corrections of mistakes such as a party who is misnamed, See Cal.
28 Civ. Proc. Code §§ 473(a)(1), 576; Nestle v. Santa Monica, 6 Cal. 3d 920, 939 (1972); Mabie
1 Motion for Leave to Fite Secand Amended Complalnt
nec we - moe
a ae. parece ae ae cen ett Se ene ete eee wee
v, Hyatt, 61 Cal. App. 4th 581, 596 (1998); Morgan v. Superior Court, 172 Cal. App. 2d 527,
530 (1959).
Defendant cites no authority to support its specious argument that this Motion should
be denied merely as a result of Plaintiff's death. While the real party in interest will need to be
amended to The Estate of Joni Nunes, common decency requires delicate handling of the
legalities as it has been less than three weeks since Plaintiff's passing. Regardless of
Defendant’s inexplicable impatience, the operative pleading in this matter must nonetheless be
amended so that Defendant Erika Reyes is properly named and may be served with the
Summons and Complaint,
10 As to Defendant’s remaining arguments, both are meritless. First, there is some
11 authority for, and Plaintiff's counsel has been granted on numerous occasions, the request that
12 an amended complaint be deemed filed and served upon the granting of a motion for leave to
“eg
13 amend, The Rutter Group California Practice Guide: Procedure Befor 1;
14 6:683; 6:703 (June 2017); (Supplemental Declaration of Robert A. Carichoff{ 2). Second, the
15 request for sanctions is absurd.
16 As a result of the foregoing, Plaintiff respectfully requests that the underlying Motion
17 be granted in full and that the Second Amended Complaint be deemed file and served on
18 Defendant BESTCARE EXPRESS, INC. dba VANTAGE TRANSPORTS.
19
20 Dated: February 5, 2018
21
DEL RIO & CARICHOFF, P.C.
22
23
By
24 DANIEL R. DEL
ROBERT A. CARI OFF
25 Attorneys for Plaintiff
26
27
28
2 Mation for Leaye to File Second Amended Complaint
vane ae ae ane vee oe eee -
SUPPLEMENTAL ECLARATION OF ROBERT A, CARICHOFF
I, ROBERT A. CARICHOFF, declare:
1 Tam counsel of record for the Plaintiff in this matter,’ I make this declaration in
support of this Motion for Leave to File Second Amended Complaint. The below facts are
within my personal knowledge and I am competent to testify to their truth if called as a
witness.
2. Thave requested and been granted on numerous occasions a request to have an
amended complaint deemed filed and served upon the granting of a motion for leave to amend
the complaint.
10
11 I declare under penalty of perjury under the laws of the State of California that the
12 foregoing is true and correct.
- -
13
14 Dated: February 5, 2018
15 y:
ROBERT A. CARWHOFF
16
17
18
19
20
21
22
23
24
25
26
27
28
Motlon for Leave to File Second Amended Complaint
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ROOF OF SERVIC!
Tam a resident of the State of California, over the age of eighteen years, and not a party to the within
action. My business address is the Del Rio & Carichoff, P.C. 2335 American River Drive, Suite 200, Sacramento,
California 95825. Today, I served the within document(s):
PLAINTIFF’S REPLY IN SUPPORT OF MOTION FOR LEAVE TO FILE SECOND AMENDED
COMPLAINT; AND SUPPLEMENTAL DECLARATION OF ROBERT A, CARICHOFF
BY FAX: by transmitting via facsimile the document(s) listed above to the fax number(s) set
oO
forth below on this date before 5:00 p.m.
BY EMAIL; by transmitting via electronic mail the document(s)'listed above from
Oo
leon@delriocarichoff.com to the email address(es) set forth below on this date before 5:00
p.m,
BY MAIL: by placing the document(s) listed above in a sealed envelope with postage thereon
fully prepaid, in the United States mail at Sacramento, California addressed as set forth below.
10
BY OVERNIGHT MAIL: by causing document(s) to be picked'up by an overnight delivery
M1 service company for delivery to the addressee(s) on the next business day.
12 Oo BY PERSONAL SERVICE: By personally delivering a true copy thereof to the office of the
wal].
oe em addressee above ane - awe ee ~ — _
13
Stephen B, Heath Attorneys for Bestcare Express, Inc,
14 sheath@heathandyuen.com éba Vantage Transports
Steven W. Yuen
15 syuen@heathandyuen.com
Matthew J, Kracht
mkracht@heathandyuen.com
16 HEATH & YUEN, APC
268 Bush Street, #3006
17 San Francisco, CA 94104
Telephone: (415) 622-7004
18 Facsimile: (415) 373-3957
19 Iam readily familiar with the firm's practice of collection and processing correspondence for mailing.
Under that practice it would be deposited with the U.S, Postal Service on that same day with postage thereon fully
20 prepaid in the ordinary course of business. I am aware that on motion of the party served,'service is presumed
invalid if postal cancellation date or postage meter date is more than one day after date of deposit for mailing in
21 affidavit. I declare under penalty of perjury under the laws of the State of California that the above is true and
correct,
22
Executed on February 5, 2018, at Sacramento, California,
23
24
Alina Y. Bulgakova
25
26
27
28
Motion for Leave,to File Second Amended Complaint
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Preview
ee ae ne a nen paar cent FILED os DEL RIO & CARICHOFF, P.C. 18 FEB -5 PH fig Robert A, Carichoff (SBN 211066) Daniel R. Del Rio (SBN 237968) 2335 American River Drive, Suite 200 Sacramento, California 95825 Telephone: (916) 378-4705 Facsimile: (916) 378-4706 Attorneys for Plaintiff SUPERIOR COURT OF CALIFORNIA COUNTY OF SAN JOAQUIN JONI NUNES, Case No.: STK-CV-UPI-2017-2120 10 Plaintiff, PLAINTIFF’S REPLY BRIEF IN SUPPORT OF MOTION FOR LEAVE 1 v. TO FILE SECOND AMENDED COMPLAINT; AND 12 BESTCARE EXPRESS, INC. dba SUPPLEMENTAL DECLARATION VANTAGE. TRANSPORTS,.ERIKA .. OF ROBERT A,.CARICHOFF. “ 13 NUNES, and DOES | through 10, inclusive, Date: February 21, 2018 14 Time: 9:00 a.m. Defendants. Dept: 10C 15 Judge: Hon. Elizabeth Humphreys 16 Jury Trial Demanded 17 18 Defendant BESTCARE EXPRESS, INC. dba VANTAGE TRANSPORTS 19 (“Defendant”) opposes the underlying Motion based entirely upon Plaintiff JONI NUNES’ 20 death. Her death, however, should have absolutely no bearing on the outcome of the instant 21 Motion, which seeks merely to amend the operative pleading as to one defendant’s name. 22 This Motion was filed on January 2, 2018. Two weeks later, on January 17, 2018, 23 Plaintiff died during surgery. (Defendant’s Exhibit A). This Motion solely addresses amending 24 the pleading to correctly name defendant, Erika Reyes. In that respect, Plaintiff's death is 25 totally irrelevant. 26 As set forth in Plaintiff's moving papers, judicial policy favors liberal amendment of 27 pleadings to allow for the corrections of mistakes such as a party who is misnamed, See Cal. 28 Civ. Proc. Code §§ 473(a)(1), 576; Nestle v. Santa Monica, 6 Cal. 3d 920, 939 (1972); Mabie 1 Motion for Leave to Fite Secand Amended Complalnt nec we - moe a ae. parece ae ae cen ett Se ene ete eee wee v, Hyatt, 61 Cal. App. 4th 581, 596 (1998); Morgan v. Superior Court, 172 Cal. App. 2d 527, 530 (1959). Defendant cites no authority to support its specious argument that this Motion should be denied merely as a result of Plaintiff's death. While the real party in interest will need to be amended to The Estate of Joni Nunes, common decency requires delicate handling of the legalities as it has been less than three weeks since Plaintiff's passing. Regardless of Defendant’s inexplicable impatience, the operative pleading in this matter must nonetheless be amended so that Defendant Erika Reyes is properly named and may be served with the Summons and Complaint, 10 As to Defendant’s remaining arguments, both are meritless. First, there is some 11 authority for, and Plaintiff's counsel has been granted on numerous occasions, the request that 12 an amended complaint be deemed filed and served upon the granting of a motion for leave to “eg 13 amend, The Rutter Group California Practice Guide: Procedure Befor 1; 14 6:683; 6:703 (June 2017); (Supplemental Declaration of Robert A. Carichoff{ 2). Second, the 15 request for sanctions is absurd. 16 As a result of the foregoing, Plaintiff respectfully requests that the underlying Motion 17 be granted in full and that the Second Amended Complaint be deemed file and served on 18 Defendant BESTCARE EXPRESS, INC. dba VANTAGE TRANSPORTS. 19 20 Dated: February 5, 2018 21 DEL RIO & CARICHOFF, P.C. 22 23 By 24 DANIEL R. DEL ROBERT A. CARI OFF 25 Attorneys for Plaintiff 26 27 28 2 Mation for Leaye to File Second Amended Complaint vane ae ae ane vee oe eee - SUPPLEMENTAL ECLARATION OF ROBERT A, CARICHOFF I, ROBERT A. CARICHOFF, declare: 1 Tam counsel of record for the Plaintiff in this matter,’ I make this declaration in support of this Motion for Leave to File Second Amended Complaint. The below facts are within my personal knowledge and I am competent to testify to their truth if called as a witness. 2. Thave requested and been granted on numerous occasions a request to have an amended complaint deemed filed and served upon the granting of a motion for leave to amend the complaint. 10 11 I declare under penalty of perjury under the laws of the State of California that the 12 foregoing is true and correct. - - 13 14 Dated: February 5, 2018 15 y: ROBERT A. CARWHOFF 16 17 18 19 20 21 22 23 24 25 26 27 28 Motlon for Leave to File Second Amended Complaint arson nee wee wee =~ smraet ante ne eae woe nee ee ae ae wn wo ai ere aes ee . ROOF OF SERVIC! Tam a resident of the State of California, over the age of eighteen years, and not a party to the within action. My business address is the Del Rio & Carichoff, P.C. 2335 American River Drive, Suite 200, Sacramento, California 95825. Today, I served the within document(s): PLAINTIFF’S REPLY IN SUPPORT OF MOTION FOR LEAVE TO FILE SECOND AMENDED COMPLAINT; AND SUPPLEMENTAL DECLARATION OF ROBERT A, CARICHOFF BY FAX: by transmitting via facsimile the document(s) listed above to the fax number(s) set oO forth below on this date before 5:00 p.m. BY EMAIL; by transmitting via electronic mail the document(s)'listed above from Oo leon@delriocarichoff.com to the email address(es) set forth below on this date before 5:00 p.m, BY MAIL: by placing the document(s) listed above in a sealed envelope with postage thereon fully prepaid, in the United States mail at Sacramento, California addressed as set forth below. 10 BY OVERNIGHT MAIL: by causing document(s) to be picked'up by an overnight delivery M1 service company for delivery to the addressee(s) on the next business day. 12 Oo BY PERSONAL SERVICE: By personally delivering a true copy thereof to the office of the wal]. oe em addressee above ane - awe ee ~ — _ 13 Stephen B, Heath Attorneys for Bestcare Express, Inc, 14 sheath@heathandyuen.com éba Vantage Transports Steven W. Yuen 15 syuen@heathandyuen.com Matthew J, Kracht mkracht@heathandyuen.com 16 HEATH & YUEN, APC 268 Bush Street, #3006 17 San Francisco, CA 94104 Telephone: (415) 622-7004 18 Facsimile: (415) 373-3957 19 Iam readily familiar with the firm's practice of collection and processing correspondence for mailing. Under that practice it would be deposited with the U.S, Postal Service on that same day with postage thereon fully 20 prepaid in the ordinary course of business. I am aware that on motion of the party served,'service is presumed invalid if postal cancellation date or postage meter date is more than one day after date of deposit for mailing in 21 affidavit. I declare under penalty of perjury under the laws of the State of California that the above is true and correct, 22 Executed on February 5, 2018, at Sacramento, California, 23 24 Alina Y. Bulgakova 25 26 27 28 Motion for Leave,to File Second Amended Complaint wecunnanyoreten ree ie nee nk te ne atone a sree ae ee cee we a