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ANNA GATTI, In Propria Persona
1
Via Lambertesca 11
2 Florence, Italy, 50122 ELECTRONICALLY
Telephone: (415) 697-9026 F I L E D
3 Email: anna.gatti@gmail.com Superior Court of California,
County of San Francisco
4 IN PRO PER 12/24/2019
SUPERIOR COURT OF THE STATE OF CALIFORNIA Clerk of the Court
5 BY: EDNALEEN ALEGRE
Deputy Clerk
6 COUNTY OF SAN FRANCISCO
7
8 ANNA GATTI, Case No. CGC-17-563021
9 Plaintiff,
ANNA GATTI’S OPPOSITION TO LOOP AI
10 vs. LABS INC. AND GIANMAURO CALAFIORE’S
MEMORANDUM OF POINTS & AUTHORITIES
11 LOOP AI LABS INC., GIANMAURO IN SUPPORT OF MOTION FOR SUMMARY
JUDGMENT AND/OR SUMMARY
12 CALAFIORE, an individual and DOES 1 ADJUDICATION OF GATTI’S CAUSES OF
through 10, inclusive, ACTION AGAINST DEFENDANTS
13
Defendants DATE: JANUARY 7, 2020
14 ___________________________________ TIME: 9:30 A.M.
15 LOOP AI LABS, INC., DEPT: 302
16 Cross-Complainant, TRIAL DATE: FEBRUARY 3, 2020
17 vs.
RESERVATION NO. 10080102-13
18 ANNA GATTI, an individual, and DOES 1
19 through 25,
Cross-Defendant.
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Defendants Motion for Summary Judgment and/or Summary Adjudication (“SJ Motion”) must
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be denied for the reasons set forth below and in light of the Separate Statement that is devoid of any
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“issues” or identification of undisputed material facts supported by competent evidence. The motion
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should be denied as it is not a simple “fix” of the procedural problems with the first summary judgment
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motion, but instead adds new facts and legal theories and claims that should have been presented in
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the first summary judgment motion filed by Defendants. Defendants do not satisfy the requirements
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N of Section 437c, subdivision (f)(2) - there are no new circumstances to allow the refilling of the
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1 Summary Judgment motion to add new claims, legal theories, and facts to the prejudice of Gatti.
2 Further, the second summary judgment motion deprived Gatti to the right to discovery during the 75-
3 day notice period as the motion was filed on October 21 and discovery closed on November 18. In
4 addition, the Summary Judgment motion was not properly noticed with 75 days as Defendants failed
5 to consider the additional 2 days for service by electronic mail as required by CCP 1005.
6 It simply cannot be said that there are any issues raised for summary adjudication that
7 completely dispose of a cause of action, and we are faced with “countless pages of utterly unnecessary
8 – and necessarily unavailing – material.” (Nazir v. United Airlines (2009) 143 Cal.App.4th 243, 251.)
9 The SJ Motion must be denied as Defendants have failed to meet their initial burden.1 To meet this
10 burden, the defendant must “present evidence, and not simply point out through argument, that the
11 plaintiff does not possess, and cannot reasonably obtain, needed evidence.” (Aguilar v. Atlantic
12 Richfield Co. (2001) 25 Cal.4th 826, 851, 854 (emphasis added); Pisaro v. Brantley (1996) 42
13 Cal.App.4th 1591, 1601.)
14 The Separate Statement in this case that is devoid of material facts or issues is simply an
15 unreasonable waste of this Court’s time. “[S]eparate statements are required not to satisfy a sadistic urge
16 to torment lawyers, but rather to afford due process to opposing parties and to permit trial courts to
17 expeditiously review complex motions for [summary adjudication] and summary judgment to determine
18 quickly and efficiently whether material facts are undisputed. (Nazir, supra, 178 Cal.App.4th at 251-
19 252.). Additionally, this second Summary Judgment Motion was untimely filed by Defendants and
20 initially set for January 2, 2020, as not being properly served with 75-day notice.
21 (1) THE MOTION IS NOT TIMELY AND IT IS PREJUDICAL TO GATTI
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24 1 Summary judgment or adjudication is only appropriate when no material issue of fact exists and
where the record establishes as a matter of law that a cause of action asserted cannot prevail. (Avila v.
25 Standard Oil Co. (1985) 167 Cal.App.3d 441, 446.) It is on the moving party (i.e., the Defendant) to
“conclusively negate” a necessary element of the plaintiff’s case or demonstrate “that under no
26 hypothesis is there a material issue of fact” “that would require a reasonable trier of fact not to find any
27 underlying material fact more likely than not.” (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763,
767 (emphasis added); Ann M. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 673- 674; Aguilar
28 v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 851.)
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1 Defendants First Summary Judgment Motion was heard on October 7, 2019 and denied. Defendants
2 then filed their Second Summary Judgment Motion on October 21, 2019, serving the same by electronic
3 mail pursuant to stipulation of the parties. Defendants failed to advise the Court at the Ex Parte hearing
4 on this matter on November 5, 2019, that the real purpose of their Ex Parte Application was to obtain
5 relief from the late filing and service of the Second Summary Judgment Motion.
6 Pursuant to CCP. Section 437(a)(3) - “The motion shall be heard no later than 30 days before
7 the date of trial, unless the court for good cause orders otherwise.” The Second Summary Judgement
8 Motion was initially set for January 2, 2020. The trial date is February 3, 2020. As such the motion
9 was set “no later than 30 days before trial.” HOWEVER, the Second Summary Judgment Motion
10 did not provide the proper 75-day notice period plus the applicable 2 days for service by
11 electronic mail. CCP. Section 432c(a)(2) provides:
12 “(2) Notice of the motion and supporting papers shall be served on all other parties to the action at least
75 days before the time appointed for hearing. If the notice is served by mail, the required 75-day period
13 of notice shall be increased by 5 days if the place of address is within the State of California, 10 days
14 if the place of address is outside the State of California but within the United States, and 20 days if the
place of address is outside the United States. If the notice is served by facsimile transmission, express
15 mail, or another method of delivery providing for overnight delivery, the required 75-day period of
notice shall be increased by two court days.”
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The Second Summary Judgment Motion was served on October 21, 2019 by email. 75 days
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plus 2 days for electronic service on October 21, 2019 is Monday January 6, 2019. The date of
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Monday January 6, 2019 is not within the 30-day period before trial.
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The Second Summary Judgment Motion was not properly noticed and cannot be heard. Thus,
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this Court must not allow the Second Summary Judgment to be continued and should dismiss the same
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as improperly noticed. Defendants failure to advise the Court of the improperly noticed motion is even
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more reason to deny the requested relief. No application for relief from the improper noticed motion
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has been filed – and no excuse for the filing of an improper notice has been presented pursuant to CCP
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Section 473.
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A) There was no proper hand service on October 21, 2019
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Recognizing that Defendants had not properly notice the Second Summary Judgment Motion –
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providing the requisite 77-day notice, Defendants attempted to “hand serve” the motion on the same
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1 date and purporting to hand serve the same although the parties were not properly served pursuant to
2 Code.2 The alleged hand service was not proper:
3 (a) Janet Brayer is not counsel of record; (b) Anna Gatti lives in Italy, hence the agreement to accept
4 service by email; (c) Gatti does not live at the Ritz and she has never lived there; (d) The USPS
5 P.O. Box does not accept hand service.
6 It is unclear why Defendants served pursuant to CCP Section 1015, when they have Gatti’s address
7 in Italy and can serve pursuant to CCP Section 1013 (adding 20 calendar days if either the place of
8 mailing or the place of address is outside the United States), and the parties have an agreement for
9 electronic service. Service under CCP 1015 is only proper when the residence is unknown. CCP
10 Section 1011(b) provides that If the party’s residence address is unknown, service may be made by
11 delivering the notice or papers to the clerk of the court. (See, CCP 1011(b)(3): (3) If the party's
12 residence is not known, any attempt of service pursuant to this subdivision may be made by delivering
13 the notice or papers to the clerk of the court, for that party.” However, in this case Defendants clearly
14 knew that Gatti’s residence was not in California and they knew it for a long time, in fact Defendants
15 even suggest to depose Gatti in Italy more than a year ago. Hand service was not properly affected in
16 this case. The Order on the First Summary Judgment Motion specifically notes that Brayer was
17 specially appearing. One can only glean that such service under CCP Section 1015 was done out of
18 gamesmanship, knowing that the motion had not been timely served by electronic email. "Generally
19 speaking, substituted and constructive notices are not favored in law and are countenanced only as a
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21 2 The Summary Judgment 2 Certificate of Service states:
Service of the foregoing documents was accomplished by personal service on Gatti as follows: (a) by causing copies of the
22 foregoing documents to be personally delivered to Gatti’s counsel, Janet Brayer, Esq., at her address of record with the
California State Bar, at the Law Offices of Janet Brayer, 456 Montgomery Street, Floor 20, San Francisco, California on
23 October 21, 2019; (b) by causing copies of the foregoing documents to be personally delivered for the attention of the Clerk
of the Court, at 400 McAllister Street, San Francisco, California, pursuant to CCP § 1015, since Gatti has refused to provide
24 a physical address in the United States where she can personally be served, has only provided a United States Postal Office
P.O. Box address, and has claimed that she resides in Italy, Via Lambertasca 11, Florence; (c) by causing copies of the
25 foregoing documents to be personally delivered to the Ritz Carlton Residences at 690 Market Street in San Francisco where
Gatti owns a residential unit, which address Gatti recently used as the venue for the Defendants’ noticed deposition of
26 October 15, 2019. The documents were handed to the concierge of the Ritz Carlton Residences on duty, Mr. Spencer, to
whom I personally spoke by telephone at approximately 7:39pm PDT of October 21, 2019, to confirm the documents were
27 being handed to him for delivery to Gatti; (d) by causing copies of the foregoing documents to be personally delivered to
Gatti’s P.O. Box # 462, located at 150 Sutter Street, where the documents were handed over to the person on duty at
28 approximately 4:59pm PDT on October 21, 2019. In addition to the foregoing, all documents were also sent by EMAIL
N Transmission to the recipient(s) set forth below at her email address of record: Anna Gatti - Anna.gatti@gmail.com
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1 matter of necessity or extreme expediency. (20 Cal.Jur. 243.)" (Johnson v. Barreiro (1943) 59
2 Cal.App.2d 213, 218 [138 P.2d 746], cited with approval in Simpson v. City of Los Angeles (1953) 40
3 Cal.2d 271, 280 [253 P.2d 464].)” Hankla v. Governing Bd, (1975) 46 Cal. App. 3d 644, 654.
4 Electronic service has never been an issue in the past, and it is only now an issue as Defendants
5 provided improper notice for the Second Summary Judgment Motion by failing to add the 2 days for
6 electronic service and then failed to properly serve by hand. The Second Motion for Summary
7 Judgment was served late and must be struck and taken off calendar.
8 (B) The Summary Judgment Two Motion deprives Gatti of the right to Discovery during the
9 75-day Notice Period
10 Defendants moved to continue the trial, but discovery was closed on November 18, 2019.
11 Defendants then filed this Summary Judgment motion on October 21, 2019. The second Summary
12 Judgment Motion adds all types of new arguments and facts, while at the same time depriving Gatti
13 of the right to engage in discovery during the 75-day notice period. This is prejudicial - See Gatti
14 declaration paragraph 25.
15 (2) DEFENDANTS HAVE NOT MET THEIR BURDEN ON SUMMARY JUDGMENT
16 OR SUMMARY ADJUDICATION
17 To prevail on the SJ Motion, Defendants must prove there is no triable issue of material fact.
18 (CCP § 437c(c); Biancalana v. T.D. Serv. (2013) 56 Cal.4th 807, 813; Coral Constr., Inc. v. City & Cty.
19 of S.F. (2010) 50 Cal.4th 315, 326; Aguilar v. Atlantic Richfield Co. , supra, 25 Cal.4th 826, 850). If
20 there is a single triable issue of material fact, the court must deny the motion. (Weil, Civil Procedure
21 Before Trial, ¶ 10:270; see CCP § 437c(c)). For a fact to be “material,” it must (1) relate to some claim
22 or defense at issue under the pleadings and (2) be essential to the judgment. (Kelly v. First Astri Corp.
23 (1999) 72 Cal.App.4th 462, 470).
24 To be entitled to a Summary Judgment, the movant must resolve the entire suit in the motion for
25 summary judgment (i.e., all causes of action from both claims and counterclaims). (See CCP § 437c(c);
26 Jacobs v. Coldwell Banker Residential Brokerage Co. (2d Dist.2017) 14 Cal.App.5th 438, 443).
27 Defendants fail to advise how the “facts” presented in the Separate Statement resolve the entire suit. If
28 the defendant moves for summary judgment, it must establish that it is entitled to judgment as a matter
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1 of law by producing admissible evidence that every cause of action in the plaintiff's suit has no merit.
2 (See CCP § 437c(p)(2); B.H. v. County of San Bernardino (2015) 62 Cal.4th 168, 178; In re Automobile
3 Antitrust Cases I & II (2016) 1 Cal.App.5th 127, 150; Slovensky v. Friedman (2006) 142 Cal.App.4th
4 1518, 1527).
5 As to summary adjudication, to establish that a cause of action has no merit, the defendant must
6 show that (1) one or more elements of the plaintiff's cause of action cannot be established or (2) there is
7 a complete defense to the cause of action. (CCP § 437c(p)(2); Jing Huang v. Bicycle Casino, Inc. (2d
8 Dist. 2016) 4 Cal.App.5th 329, 337; All Towing Servs. v. City of Orange (4th Dist.2013) 220 Cal.App.4th
9 946, 953; see CCP § 437c(o)). Defendants have failed to present anything from which an analysis can
10 be made as to whether there is a complete defense to the action (and if so what defense), or an element
11 of a cause of action cannot be established.
12 As Defendants cannot present evidence conclusively negating an element of one of Plaintiff’s
13 causes of action, Defendants point to discovery responses made by Plaintiff, but those responses were
14 primarily objections; Defendants do not explain what responses would support a finding that plaintiff
15 cannot support her claims with evidence, and Plaintiff did prepare further responses. To show that the
16 plaintiff cannot establish an element of a cause of action, the defendant can present evidence that the
17 plaintiff cannot support the element with evidence in the plaintiff's possession and cannot reasonably
18 obtain the needed evidence. (Aguilar, supra, 25 Cal.4th at 854; see, e.g., Nazaretyan v. California
19 Physicians' Serv. (2010) 182 Cal.App.4th 1601, 1614 [(movant did not meet its burden because it did
20 not introduce any evidence that Plaintiff could not reasonably obtain needed evidence]). To succeed on
21 this ground, the defendant must do more than conclusively state in its motion for summary judgment
22 that the plaintiff lacks the evidence. (Aguilar, 25 Cal.4th at 854). Instead, the defendant must support
23 the motion for summary judgment with evidence from affidavits, declarations, admissions, answers to
24 interrogatories, depositions, or matters of judicial notice. (CCP § 437c(b); Aguilar, 25 Cal.4th at 855;
25 Moore v. William Jessup Univ. (2015) 243 Cal.App.4th 427, 433)
26 Objections to discovery are not equivalent to factually devoid discovery responses. (Gaggero
27 v. Yura (2003) 108 Cal.App.4th 884, 893). To use a factually devoid discovery response to support
28 summary judgment, (1) the movant must make an affirmative showing that the opposing party does
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1 not possess, and cannot reasonably obtain, evidence to prove its case, (2) the response must be
2 attributed to the opposing party, and (3) the factual deficiencies must arise from questions asked. (See
3 Silva v. See’s Candy Shop, (2016) 7 Cal.App.5th 235, 246; Scheiding v. Dinwiddie Constr. Co. (1999)
4 69 Cal.App.4th 64, 80). Defendants have not met their burden that would allow them to rely on a
5 theory of “factually devoid discovery” for a grant of summary judgment.
6 Further, Defendants cannot use the factually devoid discovery response theory to establish an
7 affirmative defense. (See, Orange Cty. Water Dist. v. Sabic Innovative Plastics US, LLC (2017) 14
8 Cal.App.5th 343, 389).
9 Defendants have not presented evidence to support summary judgment or summary
10 adjudication.
(3) ONLY THE “FACTS” IN THE SEPARATE STATEMENT CAN BE CONSIDERED
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AND ALL “FACTS” SET FORTH IN THE POINTS AND AUTHORITIES MUST BE
12 DISREGARDED
13 As to the “facts” set forth in the Points and Authorities without citation to evidence and without
14 being set forth in the Separate Statement, such facts simply cannot be considered and Plaintiff will not
15 address them.3 (See, Scripps Clinic v. Superior Ct. (2003) 108 Cal.App.4th 917, 929; North Coast
16 Bus. Park v. Nielsen Constr. Co. (1993) 17 Cal.App.4th 22, 30–31). As set forth in Scripps,
“ ‘This is the Golden Rule of Summary Adjudication: if it is not set forth in the separate
17 statement, it does not exist. Both the court and the opposing party are entitled to have all
18 the facts upon which the moving party bases its motion plainly set forth in the separate
statement.’ [Citations]” (United Community Church v. Garcin (1991) 231 Cal.App.3d
19 327, 337, 282 Cal.Rptr. 368; see also North Coast Business Park v. Nielsen Construction
Co. (1993) 17 Cal.App.4th 22, 31, 21 Cal.Rptr.2d 104.)”
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Scripps Clinic v. Superior Court, at 929.
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As to the Golden Rule of Summary Adjudication, Collins v. Hertz Corp., (2006) 144 Cal.App.4th
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64 sets forth the necessity for following the rules on summary judgment. There, summary judgment was
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granted for defendants based on plaintiffs' inadequate separate statement. The Court of Appeal affirmed.
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The court began with a description of the purpose of the rules, citing and discussing Aguilar and Garcin,
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and the purpose and goal of the separate statement. “That goal is defeated where, as here, the trial court
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is forced to wade through stacks of documents, the bulk of which fail to comply with the substantive
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O judgment. (Residents of Beverly Glen, Inc. v. City of L.A. (1973) 34 Cal.App.3d 117, 127).
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1 requirements of section 437c, subdivision (b)(3), or the formatting requirements of rule 342, in an effort
2 to cull through the arguments and determine what evidence is admitted and what remains at issue. The
3 realization of this goal is so important that the Legislature has determined ‘[f]ailure to comply with this
4 requirement of a separate statement may constitute a sufficient ground, in the court's discretion, for
5 granting the motion.’ (§ 437c, subd. (b)(3).)” (Id. at pp. 72–73).
6 And the court summed up: “The separate statement serves two important functions in a summary
7 judgment proceeding: It notifies the parties which material facts are at issue, and it provides a convenient
8 and expeditious vehicle permitting the trial court to hone in on the truly disputed facts.” “A busy trial
9 court's task is made extremely difficult if a party opposing summary judgment fails to comply with the
10 requirements of rule 342, stating unequivocally whether a fact is undisputed or not and, if not, stating
11 the nature of the dispute and identifying the evidence supporting its contention.” (Id. at pp. 74-75).
12 If a defendant moves for summary judgment and does not controvert factual allegations in the
13 complaint, the court must deem the factual allegations in the complaint as true for purposes of the
14 summary judgment. Slovensky v. Friedman (2006) 142 Cal.App.4th 1518, 1534.). As Defendants
15 have not controverted the facts alleged in Plaintiff’s Complaint, summary judgment and summary
16 adjudication must be denied.
17 4) SUMMARY JUDGMENT CAN NOT BE GRANTED BASED ON A THEORY THAT
GATTI WAIVED CLAIMS NOT ASSERTED IN THE FEDERAL ACTION
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There is no evidence presented to support a waiver or statute of limitation defense. Gatti clearly
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filed a Counter-Claim in the Federal Action, and then filed her claim in State Court after the Federal
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Action was dismissed and judgment entered in favor of Gatti (the Federal Court did not retain
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jurisdiction over the counter-claim). C.C.P. Section 426.30(a) does not preclude the addition of claims
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to a “mandatory” counter-claim that was properly and timely filed. Unlike the plaintiff in the case of
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Currie Med. Specialities, Inc . v. Bowen, (1982) 136 Cal. App. 3d 774, GATTI FILED A CLAIM in
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federal court.4 Likewise AI Holding Co. v O’Brien & Hicks, (1999) 75 Cal. App 4th 1310 is
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27 4 “This is the second action between these parties. In 1979, Bowen sued Currie in the federal court for
violating the Lanham Act (15 U.S.C. § 1051 et seq.) and unfair competition. Currie answered but
28 made no counterclaim. Four months after Currie answered, the suit was dismissed with prejudice by
N stipulation of the parties.”
O Currie Medical Specialties, Inc. v. Bowen, 136 Cal. App. 3d 774, 776
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1 inapplicable as the Plaintiff did not file a counter claim in the federal court, as Gatti did.5 Gatti
2 certainly is entitled to proceed on her claim she filed in federal court and nothing precludes her from
3 adding new theories of liability. (See, C.C.P. §§Section 469, 470; General Credit Corp. v. Pichel
4 (1975) 44 Cal. App. 3d 844).
5 5) DEFENDANTS CITATIONS TO THE FEDERAL COURT ACTION
6 Plaintiff feels compelled to point out that Defendants are failing to fully cite or explain decisions
7 from the Federal Action referred to in their Points and Authorities.
8 At page 3, and page 14, Defendants cite to Loop AI Labs, 2015 U.S. Dist. LEXIS 30707 at *11.
9 This was a decision on an order denying plaintiff Loop’s motion for temporary restraining order, and
10 the Court did not make any “finding of fact,” and made the comment stating that based on the
11 pleadings, “at this early stage of the litigation, the Court believes that there is at least some likelihood
12 of Loop AI prevailing on a breach of contract claim against Defendant Gatti.”
13 At page 14, Defendants cite to Loop AI Labs v. Gatti, 2015 U.S. Dist. Lexis 117357, 13, an
14 Order denying a motion to dismiss for lack of personal jurisdiction. The Court again did not make any
15 “finding of fact.”
16 Finally, at page 3 and 15, Defendants cite to Loop AI Labs v. Gatti, 2016 U.S. Dist. Lexis
17 195611, another Order denying a motion to dismiss for lack of personal jurisdiction. The Court did not
18 find that “Gatti requested and received access to Loop-AI’s technical information,” but instead stated
19 that “Plaintiff alleges” the same.
20 (6) THE CLAIMS ARE NOT BARRED BY THE STATUE OF LIMITATIONS
21 Defendants allege for the first time that Plaintiff’s claims are barred by the statute of
22 limitations. This allegation is baseless as Gatti was terminated on February 4, 2015 and she filed
23 this action on December 2017, well within the 3 (+1) years statute of limitations. Additionally,
24 Gatti already filed a counterclaim in Federal Action back in 2015. The Federal Court entered a
25 judgement in favor of Gatti in 2017 instructing to continue the claim in State Level Court. The
26 same year Gatti filed this case with the State Court. It was Gatti’s right to amend her pleadings at
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28 5“Anden answered the first amended complaint, but it is undisputed that Anden did not file a cross-
N complaint against O'Brien & Hicks. “Al Holding Co. v. O'Brien & Hicks, 75 Cal. App. 4th 1310, 1312.
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1 any time “in the furtherance of justice” (CCP Section 576). Federal Rule of Procedure 15(1)(B))
2 allows for relation back when the amend asserts a claim or defense that arose out of conduct,
3 transaction or occurrence set out – or attempted to set out -in the original pleading. Further Gatti
4 can move to amend under California law to conform to proof and the related claims
5 “relate back.”. See, CCP Sections 469, 470, 473 and 576.
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(7) GATTI DID NOT BREACH THE EMPLOYMENT AGREEMENT, SHE IS DUE
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COMPENSATION, AND THE AGREEMENT WAS NOT MODIFIED TO PRECLUDE
8 COMPENSATION
9 Defendants’ argument that Gatti breached the employment agreement is not supported by
10 evidence and all allegations of Gatti breaching employment agreement and committing wrongdoing
11 have been dismissed with prejudice by the Federal Court. None of these allegations has been supported
12 by evidence, proven and can be used to support that Gatti is not due compensation. Additionally, the
13 original employment agreement signed by Gatti was not modified to preclude compensation as alleged
14 by Defendants.
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16 CONCLUSION
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For the foregoing reasons, Defendants have not met their burden and Summary Judgment
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and Summary Adjudication must be denied.
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21 Dated: December 24, 2019
22 _________________________________
ANNA GATTI, IN PRO PER
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ANNA GATTI, In Propria Persona 1 Via Lambertesca 11 2 Florence, Italy, 50122 ELECTRONICALLY Telephone: (415) 697-9026 F I L E D 3 Email: anna.gatti@gmail.com Superior Court of California, County of San Francisco 4 IN PRO PER 12/24/2019 SUPERIOR COURT OF THE STATE OF CALIFORNIA Clerk of the Court 5 BY: EDNALEEN ALEGRE Deputy Clerk 6 COUNTY OF SAN FRANCISCO 7 8 ANNA GATTI, Case No. CGC-17-563021 9 Plaintiff, ANNA GATTI’S OPPOSITION TO LOOP AI 10 vs. LABS INC. AND GIANMAURO CALAFIORE’S MEMORANDUM OF POINTS & AUTHORITIES 11 LOOP AI LABS INC., GIANMAURO IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT AND/OR SUMMARY 12 CALAFIORE, an individual and DOES 1 ADJUDICATION OF GATTI’S CAUSES OF through 10, inclusive, ACTION AGAINST DEFENDANTS 13 Defendants DATE: JANUARY 7, 2020 14 ___________________________________ TIME: 9:30 A.M. 15 LOOP AI LABS, INC., DEPT: 302 16 Cross-Complainant, TRIAL DATE: FEBRUARY 3, 2020 17 vs. RESERVATION NO. 10080102-13 18 ANNA GATTI, an individual, and DOES 1 19 through 25, Cross-Defendant. 20 21 22 Defendants Motion for Summary Judgment and/or Summary Adjudication (“SJ Motion”) must 23 be denied for the reasons set forth below and in light of the Separate Statement that is devoid of any 24 “issues” or identification of undisputed material facts supported by competent evidence. The motion 25 should be denied as it is not a simple “fix” of the procedural problems with the first summary judgment 26 motion, but instead adds new facts and legal theories and claims that should have been presented in 27 the first summary judgment motion filed by Defendants. Defendants do not satisfy the requirements 28 N of Section 437c, subdivision (f)(2) - there are no new circumstances to allow the refilling of the O T GATTI OPPOSITION TO LOOP & GIAMAURO MEMORANDUM OF POINTS & AUTHORITIES ISO SJM I C 1 E O 1 Summary Judgment motion to add new claims, legal theories, and facts to the prejudice of Gatti. 2 Further, the second summary judgment motion deprived Gatti to the right to discovery during the 75- 3 day notice period as the motion was filed on October 21 and discovery closed on November 18. In 4 addition, the Summary Judgment motion was not properly noticed with 75 days as Defendants failed 5 to consider the additional 2 days for service by electronic mail as required by CCP 1005. 6 It simply cannot be said that there are any issues raised for summary adjudication that 7 completely dispose of a cause of action, and we are faced with “countless pages of utterly unnecessary 8 – and necessarily unavailing – material.” (Nazir v. United Airlines (2009) 143 Cal.App.4th 243, 251.) 9 The SJ Motion must be denied as Defendants have failed to meet their initial burden.1 To meet this 10 burden, the defendant must “present evidence, and not simply point out through argument, that the 11 plaintiff does not possess, and cannot reasonably obtain, needed evidence.” (Aguilar v. Atlantic 12 Richfield Co. (2001) 25 Cal.4th 826, 851, 854 (emphasis added); Pisaro v. Brantley (1996) 42 13 Cal.App.4th 1591, 1601.) 14 The Separate Statement in this case that is devoid of material facts or issues is simply an 15 unreasonable waste of this Court’s time. “[S]eparate statements are required not to satisfy a sadistic urge 16 to torment lawyers, but rather to afford due process to opposing parties and to permit trial courts to 17 expeditiously review complex motions for [summary adjudication] and summary judgment to determine 18 quickly and efficiently whether material facts are undisputed. (Nazir, supra, 178 Cal.App.4th at 251- 19 252.). Additionally, this second Summary Judgment Motion was untimely filed by Defendants and 20 initially set for January 2, 2020, as not being properly served with 75-day notice. 21 (1) THE MOTION IS NOT TIMELY AND IT IS PREJUDICAL TO GATTI 22 23 24 1 Summary judgment or adjudication is only appropriate when no material issue of fact exists and where the record establishes as a matter of law that a cause of action asserted cannot prevail. (Avila v. 25 Standard Oil Co. (1985) 167 Cal.App.3d 441, 446.) It is on the moving party (i.e., the Defendant) to “conclusively negate” a necessary element of the plaintiff’s case or demonstrate “that under no 26 hypothesis is there a material issue of fact” “that would require a reasonable trier of fact not to find any 27 underlying material fact more likely than not.” (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 767 (emphasis added); Ann M. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 673- 674; Aguilar 28 v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 851.) N O T GATTI OPPOSITION TO LOOP & GIAMAURO MEMORANDUM OF POINTS & AUTHORITIES ISO SJM I C 2 E O 1 Defendants First Summary Judgment Motion was heard on October 7, 2019 and denied. Defendants 2 then filed their Second Summary Judgment Motion on October 21, 2019, serving the same by electronic 3 mail pursuant to stipulation of the parties. Defendants failed to advise the Court at the Ex Parte hearing 4 on this matter on November 5, 2019, that the real purpose of their Ex Parte Application was to obtain 5 relief from the late filing and service of the Second Summary Judgment Motion. 6 Pursuant to CCP. Section 437(a)(3) - “The motion shall be heard no later than 30 days before 7 the date of trial, unless the court for good cause orders otherwise.” The Second Summary Judgement 8 Motion was initially set for January 2, 2020. The trial date is February 3, 2020. As such the motion 9 was set “no later than 30 days before trial.” HOWEVER, the Second Summary Judgment Motion 10 did not provide the proper 75-day notice period plus the applicable 2 days for service by 11 electronic mail. CCP. Section 432c(a)(2) provides: 12 “(2) Notice of the motion and supporting papers shall be served on all other parties to the action at least 75 days before the time appointed for hearing. If the notice is served by mail, the required 75-day period 13 of notice shall be increased by 5 days if the place of address is within the State of California, 10 days 14 if the place of address is outside the State of California but within the United States, and 20 days if the place of address is outside the United States. If the notice is served by facsimile transmission, express 15 mail, or another method of delivery providing for overnight delivery, the required 75-day period of notice shall be increased by two court days.” 16 The Second Summary Judgment Motion was served on October 21, 2019 by email. 75 days 17 plus 2 days for electronic service on October 21, 2019 is Monday January 6, 2019. The date of 18 Monday January 6, 2019 is not within the 30-day period before trial. 19 The Second Summary Judgment Motion was not properly noticed and cannot be heard. Thus, 20 this Court must not allow the Second Summary Judgment to be continued and should dismiss the same 21 as improperly noticed. Defendants failure to advise the Court of the improperly noticed motion is even 22 more reason to deny the requested relief. No application for relief from the improper noticed motion 23 has been filed – and no excuse for the filing of an improper notice has been presented pursuant to CCP 24 Section 473. 25 A) There was no proper hand service on October 21, 2019 26 Recognizing that Defendants had not properly notice the Second Summary Judgment Motion – 27 providing the requisite 77-day notice, Defendants attempted to “hand serve” the motion on the same 28 N O T GATTI OPPOSITION TO LOOP & GIAMAURO MEMORANDUM OF POINTS & AUTHORITIES ISO SJM I C 3 E O 1 date and purporting to hand serve the same although the parties were not properly served pursuant to 2 Code.2 The alleged hand service was not proper: 3 (a) Janet Brayer is not counsel of record; (b) Anna Gatti lives in Italy, hence the agreement to accept 4 service by email; (c) Gatti does not live at the Ritz and she has never lived there; (d) The USPS 5 P.O. Box does not accept hand service. 6 It is unclear why Defendants served pursuant to CCP Section 1015, when they have Gatti’s address 7 in Italy and can serve pursuant to CCP Section 1013 (adding 20 calendar days if either the place of 8 mailing or the place of address is outside the United States), and the parties have an agreement for 9 electronic service. Service under CCP 1015 is only proper when the residence is unknown. CCP 10 Section 1011(b) provides that If the party’s residence address is unknown, service may be made by 11 delivering the notice or papers to the clerk of the court. (See, CCP 1011(b)(3): (3) If the party's 12 residence is not known, any attempt of service pursuant to this subdivision may be made by delivering 13 the notice or papers to the clerk of the court, for that party.” However, in this case Defendants clearly 14 knew that Gatti’s residence was not in California and they knew it for a long time, in fact Defendants 15 even suggest to depose Gatti in Italy more than a year ago. Hand service was not properly affected in 16 this case. The Order on the First Summary Judgment Motion specifically notes that Brayer was 17 specially appearing. One can only glean that such service under CCP Section 1015 was done out of 18 gamesmanship, knowing that the motion had not been timely served by electronic email. "Generally 19 speaking, substituted and constructive notices are not favored in law and are countenanced only as a 20 21 2 The Summary Judgment 2 Certificate of Service states: Service of the foregoing documents was accomplished by personal service on Gatti as follows: (a) by causing copies of the 22 foregoing documents to be personally delivered to Gatti’s counsel, Janet Brayer, Esq., at her address of record with the California State Bar, at the Law Offices of Janet Brayer, 456 Montgomery Street, Floor 20, San Francisco, California on 23 October 21, 2019; (b) by causing copies of the foregoing documents to be personally delivered for the attention of the Clerk of the Court, at 400 McAllister Street, San Francisco, California, pursuant to CCP § 1015, since Gatti has refused to provide 24 a physical address in the United States where she can personally be served, has only provided a United States Postal Office P.O. Box address, and has claimed that she resides in Italy, Via Lambertasca 11, Florence; (c) by causing copies of the 25 foregoing documents to be personally delivered to the Ritz Carlton Residences at 690 Market Street in San Francisco where Gatti owns a residential unit, which address Gatti recently used as the venue for the Defendants’ noticed deposition of 26 October 15, 2019. The documents were handed to the concierge of the Ritz Carlton Residences on duty, Mr. Spencer, to whom I personally spoke by telephone at approximately 7:39pm PDT of October 21, 2019, to confirm the documents were 27 being handed to him for delivery to Gatti; (d) by causing copies of the foregoing documents to be personally delivered to Gatti’s P.O. Box # 462, located at 150 Sutter Street, where the documents were handed over to the person on duty at 28 approximately 4:59pm PDT on October 21, 2019. In addition to the foregoing, all documents were also sent by EMAIL N Transmission to the recipient(s) set forth below at her email address of record: Anna Gatti - Anna.gatti@gmail.com O T GATTI OPPOSITION TO LOOP & GIAMAURO MEMORANDUM OF POINTS & AUTHORITIES ISO SJM I C 4 E O 1 matter of necessity or extreme expediency. (20 Cal.Jur. 243.)" (Johnson v. Barreiro (1943) 59 2 Cal.App.2d 213, 218 [138 P.2d 746], cited with approval in Simpson v. City of Los Angeles (1953) 40 3 Cal.2d 271, 280 [253 P.2d 464].)” Hankla v. Governing Bd, (1975) 46 Cal. App. 3d 644, 654. 4 Electronic service has never been an issue in the past, and it is only now an issue as Defendants 5 provided improper notice for the Second Summary Judgment Motion by failing to add the 2 days for 6 electronic service and then failed to properly serve by hand. The Second Motion for Summary 7 Judgment was served late and must be struck and taken off calendar. 8 (B) The Summary Judgment Two Motion deprives Gatti of the right to Discovery during the 9 75-day Notice Period 10 Defendants moved to continue the trial, but discovery was closed on November 18, 2019. 11 Defendants then filed this Summary Judgment motion on October 21, 2019. The second Summary 12 Judgment Motion adds all types of new arguments and facts, while at the same time depriving Gatti 13 of the right to engage in discovery during the 75-day notice period. This is prejudicial - See Gatti 14 declaration paragraph 25. 15 (2) DEFENDANTS HAVE NOT MET THEIR BURDEN ON SUMMARY JUDGMENT 16 OR SUMMARY ADJUDICATION 17 To prevail on the SJ Motion, Defendants must prove there is no triable issue of material fact. 18 (CCP § 437c(c); Biancalana v. T.D. Serv. (2013) 56 Cal.4th 807, 813; Coral Constr., Inc. v. City & Cty. 19 of S.F. (2010) 50 Cal.4th 315, 326; Aguilar v. Atlantic Richfield Co. , supra, 25 Cal.4th 826, 850). If 20 there is a single triable issue of material fact, the court must deny the motion. (Weil, Civil Procedure 21 Before Trial, ¶ 10:270; see CCP § 437c(c)). For a fact to be “material,” it must (1) relate to some claim 22 or defense at issue under the pleadings and (2) be essential to the judgment. (Kelly v. First Astri Corp. 23 (1999) 72 Cal.App.4th 462, 470). 24 To be entitled to a Summary Judgment, the movant must resolve the entire suit in the motion for 25 summary judgment (i.e., all causes of action from both claims and counterclaims). (See CCP § 437c(c); 26 Jacobs v. Coldwell Banker Residential Brokerage Co. (2d Dist.2017) 14 Cal.App.5th 438, 443). 27 Defendants fail to advise how the “facts” presented in the Separate Statement resolve the entire suit. If 28 the defendant moves for summary judgment, it must establish that it is entitled to judgment as a matter N O T GATTI OPPOSITION TO LOOP & GIAMAURO MEMORANDUM OF POINTS & AUTHORITIES ISO SJM I C 5 E O 1 of law by producing admissible evidence that every cause of action in the plaintiff's suit has no merit. 2 (See CCP § 437c(p)(2); B.H. v. County of San Bernardino (2015) 62 Cal.4th 168, 178; In re Automobile 3 Antitrust Cases I & II (2016) 1 Cal.App.5th 127, 150; Slovensky v. Friedman (2006) 142 Cal.App.4th 4 1518, 1527). 5 As to summary adjudication, to establish that a cause of action has no merit, the defendant must 6 show that (1) one or more elements of the plaintiff's cause of action cannot be established or (2) there is 7 a complete defense to the cause of action. (CCP § 437c(p)(2); Jing Huang v. Bicycle Casino, Inc. (2d 8 Dist. 2016) 4 Cal.App.5th 329, 337; All Towing Servs. v. City of Orange (4th Dist.2013) 220 Cal.App.4th 9 946, 953; see CCP § 437c(o)). Defendants have failed to present anything from which an analysis can 10 be made as to whether there is a complete defense to the action (and if so what defense), or an element 11 of a cause of action cannot be established. 12 As Defendants cannot present evidence conclusively negating an element of one of Plaintiff’s 13 causes of action, Defendants point to discovery responses made by Plaintiff, but those responses were 14 primarily objections; Defendants do not explain what responses would support a finding that plaintiff 15 cannot support her claims with evidence, and Plaintiff did prepare further responses. To show that the 16 plaintiff cannot establish an element of a cause of action, the defendant can present evidence that the 17 plaintiff cannot support the element with evidence in the plaintiff's possession and cannot reasonably 18 obtain the needed evidence. (Aguilar, supra, 25 Cal.4th at 854; see, e.g., Nazaretyan v. California 19 Physicians' Serv. (2010) 182 Cal.App.4th 1601, 1614 [(movant did not meet its burden because it did 20 not introduce any evidence that Plaintiff could not reasonably obtain needed evidence]). To succeed on 21 this ground, the defendant must do more than conclusively state in its motion for summary judgment 22 that the plaintiff lacks the evidence. (Aguilar, 25 Cal.4th at 854). Instead, the defendant must support 23 the motion for summary judgment with evidence from affidavits, declarations, admissions, answers to 24 interrogatories, depositions, or matters of judicial notice. (CCP § 437c(b); Aguilar, 25 Cal.4th at 855; 25 Moore v. William Jessup Univ. (2015) 243 Cal.App.4th 427, 433) 26 Objections to discovery are not equivalent to factually devoid discovery responses. (Gaggero 27 v. Yura (2003) 108 Cal.App.4th 884, 893). To use a factually devoid discovery response to support 28 summary judgment, (1) the movant must make an affirmative showing that the opposing party does N O T GATTI OPPOSITION TO LOOP & GIAMAURO MEMORANDUM OF POINTS & AUTHORITIES ISO SJM I C 6 E O 1 not possess, and cannot reasonably obtain, evidence to prove its case, (2) the response must be 2 attributed to the opposing party, and (3) the factual deficiencies must arise from questions asked. (See 3 Silva v. See’s Candy Shop, (2016) 7 Cal.App.5th 235, 246; Scheiding v. Dinwiddie Constr. Co. (1999) 4 69 Cal.App.4th 64, 80). Defendants have not met their burden that would allow them to rely on a 5 theory of “factually devoid discovery” for a grant of summary judgment. 6 Further, Defendants cannot use the factually devoid discovery response theory to establish an 7 affirmative defense. (See, Orange Cty. Water Dist. v. Sabic Innovative Plastics US, LLC (2017) 14 8 Cal.App.5th 343, 389). 9 Defendants have not presented evidence to support summary judgment or summary 10 adjudication. (3) ONLY THE “FACTS” IN THE SEPARATE STATEMENT CAN BE CONSIDERED 11 AND ALL “FACTS” SET FORTH IN THE POINTS AND AUTHORITIES MUST BE 12 DISREGARDED 13 As to the “facts” set forth in the Points and Authorities without citation to evidence and without 14 being set forth in the Separate Statement, such facts simply cannot be considered and Plaintiff will not 15 address them.3 (See, Scripps Clinic v. Superior Ct. (2003) 108 Cal.App.4th 917, 929; North Coast 16 Bus. Park v. Nielsen Constr. Co. (1993) 17 Cal.App.4th 22, 30–31). As set forth in Scripps, “ ‘This is the Golden Rule of Summary Adjudication: if it is not set forth in the separate 17 statement, it does not exist. Both the court and the opposing party are entitled to have all 18 the facts upon which the moving party bases its motion plainly set forth in the separate statement.’ [Citations]” (United Community Church v. Garcin (1991) 231 Cal.App.3d 19 327, 337, 282 Cal.Rptr. 368; see also North Coast Business Park v. Nielsen Construction Co. (1993) 17 Cal.App.4th 22, 31, 21 Cal.Rptr.2d 104.)” 20 Scripps Clinic v. Superior Court, at 929. 21 As to the Golden Rule of Summary Adjudication, Collins v. Hertz Corp., (2006) 144 Cal.App.4th 22 64 sets forth the necessity for following the rules on summary judgment. There, summary judgment was 23 granted for defendants based on plaintiffs' inadequate separate statement. The Court of Appeal affirmed. 24 The court began with a description of the purpose of the rules, citing and discussing Aguilar and Garcin, 25 and the purpose and goal of the separate statement. “That goal is defeated where, as here, the trial court 26 is forced to wade through stacks of documents, the bulk of which fail to comply with the substantive 27 28 N 3 The opposing party is not required to file an opposition to defeat a motion for summary O judgment. (Residents of Beverly Glen, Inc. v. City of L.A. (1973) 34 Cal.App.3d 117, 127). T GATTI OPPOSITION TO LOOP & GIAMAURO MEMORANDUM OF POINTS & AUTHORITIES ISO SJM I C 7 E O 1 requirements of section 437c, subdivision (b)(3), or the formatting requirements of rule 342, in an effort 2 to cull through the arguments and determine what evidence is admitted and what remains at issue. The 3 realization of this goal is so important that the Legislature has determined ‘[f]ailure to comply with this 4 requirement of a separate statement may constitute a sufficient ground, in the court's discretion, for 5 granting the motion.’ (§ 437c, subd. (b)(3).)” (Id. at pp. 72–73). 6 And the court summed up: “The separate statement serves two important functions in a summary 7 judgment proceeding: It notifies the parties which material facts are at issue, and it provides a convenient 8 and expeditious vehicle permitting the trial court to hone in on the truly disputed facts.” “A busy trial 9 court's task is made extremely difficult if a party opposing summary judgment fails to comply with the 10 requirements of rule 342, stating unequivocally whether a fact is undisputed or not and, if not, stating 11 the nature of the dispute and identifying the evidence supporting its contention.” (Id. at pp. 74-75). 12 If a defendant moves for summary judgment and does not controvert factual allegations in the 13 complaint, the court must deem the factual allegations in the complaint as true for purposes of the 14 summary judgment. Slovensky v. Friedman (2006) 142 Cal.App.4th 1518, 1534.). As Defendants 15 have not controverted the facts alleged in Plaintiff’s Complaint, summary judgment and summary 16 adjudication must be denied. 17 4) SUMMARY JUDGMENT CAN NOT BE GRANTED BASED ON A THEORY THAT GATTI WAIVED CLAIMS NOT ASSERTED IN THE FEDERAL ACTION 18 There is no evidence presented to support a waiver or statute of limitation defense. Gatti clearly 19 filed a Counter-Claim in the Federal Action, and then filed her claim in State Court after the Federal 20 Action was dismissed and judgment entered in favor of Gatti (the Federal Court did not retain 21 jurisdiction over the counter-claim). C.C.P. Section 426.30(a) does not preclude the addition of claims 22 to a “mandatory” counter-claim that was properly and timely filed. Unlike the plaintiff in the case of 23 Currie Med. Specialities, Inc . v. Bowen, (1982) 136 Cal. App. 3d 774, GATTI FILED A CLAIM in 24 federal court.4 Likewise AI Holding Co. v O’Brien & Hicks, (1999) 75 Cal. App 4th 1310 is 25 26 27 4 “This is the second action between these parties. In 1979, Bowen sued Currie in the federal court for violating the Lanham Act (15 U.S.C. § 1051 et seq.) and unfair competition. Currie answered but 28 made no counterclaim. Four months after Currie answered, the suit was dismissed with prejudice by N stipulation of the parties.” O Currie Medical Specialties, Inc. v. Bowen, 136 Cal. App. 3d 774, 776 T GATTI OPPOSITION TO LOOP & GIAMAURO MEMORANDUM OF POINTS & AUTHORITIES ISO SJM I C 8 E O 1 inapplicable as the Plaintiff did not file a counter claim in the federal court, as Gatti did.5 Gatti 2 certainly is entitled to proceed on her claim she filed in federal court and nothing precludes her from 3 adding new theories of liability. (See, C.C.P. §§Section 469, 470; General Credit Corp. v. Pichel 4 (1975) 44 Cal. App. 3d 844). 5 5) DEFENDANTS CITATIONS TO THE FEDERAL COURT ACTION 6 Plaintiff feels compelled to point out that Defendants are failing to fully cite or explain decisions 7 from the Federal Action referred to in their Points and Authorities. 8 At page 3, and page 14, Defendants cite to Loop AI Labs, 2015 U.S. Dist. LEXIS 30707 at *11. 9 This was a decision on an order denying plaintiff Loop’s motion for temporary restraining order, and 10 the Court did not make any “finding of fact,” and made the comment stating that based on the 11 pleadings, “at this early stage of the litigation, the Court believes that there is at least some likelihood 12 of Loop AI prevailing on a breach of contract claim against Defendant Gatti.” 13 At page 14, Defendants cite to Loop AI Labs v. Gatti, 2015 U.S. Dist. Lexis 117357, 13, an 14 Order denying a motion to dismiss for lack of personal jurisdiction. The Court again did not make any 15 “finding of fact.” 16 Finally, at page 3 and 15, Defendants cite to Loop AI Labs v. Gatti, 2016 U.S. Dist. Lexis 17 195611, another Order denying a motion to dismiss for lack of personal jurisdiction. The Court did not 18 find that “Gatti requested and received access to Loop-AI’s technical information,” but instead stated 19 that “Plaintiff alleges” the same. 20 (6) THE CLAIMS ARE NOT BARRED BY THE STATUE OF LIMITATIONS 21 Defendants allege for the first time that Plaintiff’s claims are barred by the statute of 22 limitations. This allegation is baseless as Gatti was terminated on February 4, 2015 and she filed 23 this action on December 2017, well within the 3 (+1) years statute of limitations. Additionally, 24 Gatti already filed a counterclaim in Federal Action back in 2015. The Federal Court entered a 25 judgement in favor of Gatti in 2017 instructing to continue the claim in State Level Court. The 26 same year Gatti filed this case with the State Court. It was Gatti’s right to amend her pleadings at 27 28 5“Anden answered the first amended complaint, but it is undisputed that Anden did not file a cross- N complaint against O'Brien & Hicks. “Al Holding Co. v. O'Brien & Hicks, 75 Cal. App. 4th 1310, 1312. O T GATTI OPPOSITION TO LOOP & GIAMAURO MEMORANDUM OF POINTS & AUTHORITIES ISO SJM I C 9 E O 1 any time “in the furtherance of justice” (CCP Section 576). Federal Rule of Procedure 15(1)(B)) 2 allows for relation back when the amend asserts a claim or defense that arose out of conduct, 3 transaction or occurrence set out – or attempted to set out -in the original pleading. Further Gatti 4 can move to amend under California law to conform to proof and the related claims 5 “relate back.”. See, CCP Sections 469, 470, 473 and 576. 6 (7) GATTI DID NOT BREACH THE EMPLOYMENT AGREEMENT, SHE IS DUE 7 COMPENSATION, AND THE AGREEMENT WAS NOT MODIFIED TO PRECLUDE 8 COMPENSATION 9 Defendants’ argument that Gatti breached the employment agreement is not supported by 10 evidence and all allegations of Gatti breaching employment agreement and committing wrongdoing 11 have been dismissed with prejudice by the Federal Court. None of these allegations has been supported 12 by evidence, proven and can be used to support that Gatti is not due compensation. Additionally, the 13 original employment agreement signed by Gatti was not modified to preclude compensation as alleged 14 by Defendants. 15 16 CONCLUSION 17 For the foregoing reasons, Defendants have not met their burden and Summary Judgment 18 and Summary Adjudication must be denied. 19 20 21 Dated: December 24, 2019 22 _________________________________ ANNA GATTI, IN PRO PER 23 24 25 26 27 28 N O T GATTI OPPOSITION TO LOOP & GIAMAURO MEMORANDUM OF POINTS & AUTHORITIES ISO SJM I C 10 E O