Preview
1 Todd A. Jones (Bar No. 198024)
tj ones@archemorris. com
2 Gregory K. Federico (BarNo. 242184)
gfederico(^archemorris.com
3 ARCHER NORRIS FILED/ENDORSED
A Professional Law Corporation
4 301 University Avenue, Suite 110
Sacramento, Califomia 95825 OCT 2 2 2010
5 Telephone: 916 646.2480
Facsimile: 916.646.5696
6 By.__ L KENNEDY.
DEPUTY CLERK
Attomeys for Defendant
7 R4C0RP, INC., a Califomia Corporation
8
SUPERIOR COURT OF CALIFORNIA
9
COUNTY OF SACRAMENTO
10
11
RODNEY ABBOTT and FLORENTINE CaseNo. 07AS04450
12 ABBOTT,
MEMORANDUM OF POINTS AND
13 Plaintiffs, AUTHORITIES IN SUPPORT OF REPLY
TO PLAINTIFFS' OPPOSITION TO
14 MOTION TO QUASH/STRIKE/DISMISS
SERVICE OF AMENDED SUMMONS AND
15 RONALD PAUL BRITSCHGI, et al., DOE AMENDMENT F S ^
16 Defendants. Date: October 29,2010 %d^^
Time: 2:00 p.m.
17 Dept: 53
18 Action Filed: September 24,2007
19 AND RELATED CROSS-ACTIONS.
20
I.
21 INTRODUCTION
22 Defendant R4C0RP, INC., a Califomia Corporation ("R4C0RP, INC.") hereby f i ^ l i i ^ j
23 memorandum of points and authorities in support of its reply to Plaintiffs FLORENTINE and
24 RODNEY ABBOTT'S ("Plaintiffs") Opposition to R4C0RP, INC.'s Motion to Quash, Strike,
25 and Dismiss Plaintiffs' Doe Amendment to the Second Amended Complaint ("SAC").
26 ///
27 ///
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NIC549/1039312-1
MEMO OF POINTS AND AUTHORITIES IN SUPPORT OF REPLY TO OPPOSITION
TO MOTION TO QUASH/STRIKE/DISMISS
1 II.
ARGUMENT
2
A. Service Upon R4C0RP, INC. Was Improper
3
Nani Keeshan is not the agent for service of process for R4C0RP, INC. She currently is
4
not and never has been authorized to accept service on behalf of the corporation. Plaintiffs'
5
reference to the Ingham case and the actions of R4C0RP, INC.'s attorneys in that case is
6
irrelevant to the present case. The bottom line, per the declarations of Mrs. Keeshan and
7
Mr. Ruybalid is that Mrs. Keeshan was not authorized to accept service on behalf of the
8
corporation at any time, including the Ingham case and this case.
9
Plaintiffs failed to serve the proper agent for R4C0RP, INC. Moreover, in their attempts
10
to effect substituted service, Plaintiffs' process server failed to ask Mrs. Keeshan who was "in
11
charge" ofthe office, who could accept service, and the process server failed to inform her ofthe
12
contents ofthe documents that were served on her. This would have revealed that she was not
13
authorized to accept service. The accusation that both Mr. Ruybalid and Mrs. Keeshan are
14
testifying falsely is improper, unfounded and misplaced.
15
After being notified in the moving papers that Plaintiffs' attempted service was defective.
16
Plaintiffs apparently attempted to correct their mistake and personally serve the proper agent for
17
service of process. We now know that Richard Ruybalid, the agent for R4C0RP, INC., was
18
personally served with the amended summons and second amended complaint on or about
19
October 8, 2010 by a process server retained by Plaintiffs. (See Paragraph 3 ofthe Declaration of
20
Gregory K. Federico, filed and served concurrently herewith).
21
Plaintiffs' counsel has confirmed this, but has not filed the proof of service with the Court
22
for some unknown reason. Plaintiffs' counsel also would not provide me with a copy ofthe
23
executed proof of service upon my request so I could verify if R4C0RP, INC. was properly
24
served. If Plaintiffs establish that they corrected their improper service and personally served the
25
agent for R4C0RP, INC., the motion to quash service wili be withdrawn.
26
///
27
///
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NIC549/1039312-1 2
MEMO OF POINTS AND AUTHORITIES IN SUPPORT OF REPLY TO OPPOSITION
TO MOTION TO QUASH/STRIKE/DISMISS
1 B. The Court Should Dismiss The Doe Amendment As To R4CORP, INC.
Pursuant to Code of Civil Procedure § 583.420(a)(1)
2
Plaintiffs have attempted to direct the court's attention awayfiromthe tme issue involved
3
in this motion - Plaintiffs' actual knowledge of R4C0RP, INC.'s existence as early as November
4
of 2008 and their blatant delay in naming R4C0RP, TNC. in this case.
5
1. Hennessey's Tavern Is Inapplicable To The Facts Of This Case
6
Plaintiffs' reliance on the holding in the Hennessey's Tavern case is misplaced.
7
Hennessey's Tavern holds that "as to defendants who are first named in an amended complaint
8
and aUeged to be the alter egos ofa defendant named in the onginal complaint, the action is
9
commenced at the time the amended complaint is filed first naming them as defendants." In the
10
present case, there are absolutely no alter-ego allegations contained in the complaint, first
11
amended complaint, second amended complaint, or doe amendment to complaint.
12
Further, Plaintiffs' reference to alter ego and successor liability theories is irrelevant to the
13
present motion unless and until those allegations are the subject of a pleading at issue in the case
14
It is improper for Plaintiffs to rely on such theories that are not properly before the Court. If
15
Plaintiffs would simply include their purported alter-ego theories and/or successor-in-interest
16
liability theories in a pleading, it could potentially resolve many ofthe issues related to the vague
17
and uncertain claims against R4C0RP, INC. that are the subject ofthis motion and the demurrer
18
filed concurrently herewith.
19
2. Plaintiffs' Delay In Filing The Doe Amendment Has Been Dilatory
20 And Caused R4C0RP, INC. To Suffer Preiudice
21 Plaintiffs have added R4C0RP, INC. to this action via Code of Civil Procedure § 474 -
22 the statute that allows a Plaintiff to designate fictitiously named defendants as Does when they are
23 ignorant of their trae names. However, "Once suit has been filed, unreasonable delay in filing an
24 amended pleading after discovering a Doe defendant's identity may bar a plaintiff from using the
25 fictitious name device. To preclude relation back on this basis, however, the opposing party must
26 show the plaintiffwas dilatory and that the defendant was prejudiced by the delay. Barrows v
27 American Motors Corp. (1983) 144 Cal.App. 3d 1,9. In A.N. v. Co. ofLA (2009) 171 Cal App.
28
NIC549/I039312-1 3
MEMO OF POINTS AND AUTHORITIES IN SUPPORT OF REPLY TO OPPOSITION
TO MOTION TO QUASH/STRIKE/DISMISS
1 4th 1058,1065-67, the Court stated as follows:
2 In our view, three lessons may be drawn fiom Barrows: First,
section 474 includes an implicit requirement that a plaintiff may not
3 "unreasonably delay" his or her filing ofa Doe amendment after
learning a defendant's identity. Second, a defendant named in an
4 action by a Doe amendment under section 474 may challenge the
amendment by way of an evidence-based motion, which argues that
5 the plaintiff "unreasonable delayed" his or her filing of the
challenged amendment. Third, "unreasonable delay" within the
6 meaning of Barrows includes a prejudice element, which requires a
showing by the defendant that he or she would suffer prejudice
7 fi-om plaintiff's delay in filing the Doe amendment.
8 In A.N. V Co. of LA, the Court concluded coxinsel's delay in filing and serving Doe
9 Amendments was unreasonable. It focused on several factors, including the fact that counsel
10 knew information, or had obtained access to information during the discovery process, regarding
11 the parties involved in a sexual assault of Plaintiff, yet they delayed in filing the Doe
12 Amendment. Id. at 1069.
13 a. Plaintiffs' Unreasonable Delay Is Dilatory
14 Plaintiffs had actual knowledge ofthe existence of R4CORP, INC. as early as November
15 10, 2008 upon issuance of verified responses to Form Interrogatories, Set One. Plaintiffs' admit
16 that these discovery responses gave them actual knowledge of R4C0RP, INC.'s existence. After
17 receiving actual knowledge of R4C0RP, INC. existence. Plaintiffs failed to further investigate
18 any details associated with R4C0RP, INC. They issued no written discovery, they chose not to
19 take the deposition of Richard Ruybalid, the owner ofthe company, they did not question CA
20 Constmction's foreman, Peter Atchison on the issue, and there is no indication they did any
21 independent research via the Califomia Secretary of State to determine the corporate details
22 associated with R4C0RP, INC. Plaintiffs waited over 17 months to file the Doe Amendment and
23 clearly failed to act once they had actual knowledge of R4C0RP, INC.'s existence
24 Plaintiffs' reference to Navigator's Insurance Company, potential coverage issues, and
25 reservation of rights letters are red herrings designed to divert the Court's attention away from
26 Plaintiffs' unreasonable delay. These alleged facts are irrelevant to the Court's determination of
27 whether Plaintiffs delay was unreasonable and whether that delay prejudiced R4C0RP, INC. As
28 such, R4C0RP, INC. requests that the Court disregard Plaintiffs' reference to these alleged facts.
NIC549/10393I2-! 4
MEMO OF POINTS AND AUTHORITIES IN SUPPORT OP REPLY TO OPPOSITION
TO MOTION TO QUASH/STRIKE/DISMISS
1 The facts gleaned from any bankruptcy proceeding were known to and capable of further
2 discovery as early as November 2008. Plaintiffs did nothing once it received this actual
3 knowledge.
4 b. Plaintiffs' Unreasonable Delay Results In Actual Prejudice
5 R4C0RP, INC. must also establish that the unreasonable delay has resulted in prejudice to
6 R4C0RP, INC. ]nAN. v. Co. of LA, the Court mled that prejudice did occur when a Doe
7 Defendant was brought into the matter shortly before trial because the party would face obvious
8 difficulties in preparing a defense for trial. Id. at 1068. Also, as discussed in the Hennessey's
9 Tavern case, the Court discussed the importance ofthe Court's jurisdiction over a defendant and
10 that each defendant be afforded their due process rights to notice and the opportunity to be heard
11 even if ".. .the alter ego defendant is considered to be identical with, i.e., the "other self of, the
12 defendant named in the original complaint." Hennessey's Tavern at 1360.
13 Trial is currently set for January 17,2011. The discovery cut-off is mid-December This
14 means that R4C0RP, INC., once it finally appears in the case, will have less than one month to
15 complete all necessary discovery to glean facts related to the claims against it in this matter. As
16 such, R4C0RP, INC. will suffer actual prejudice based on the fact that it will have inadequate
17 time to (1) discover the exact claims Plaintiffs are alleging against the Corporation; (2) collect
18 ample evidence on the merit of these claims; and (3) to adequately prepare the corporation's
19 defenses for trial. This prejudicially impacts R4C0RP, INC.'s due process rights.
20 Plaintiffs may attempt to argue that since Richard Ruybalid has participated in this case
21 through counsel of record since it was filed, R4C0RP, INC. has been afforded a proper defense.
22 This is not tme. Richard Ruybalid and R4C0RP. INC. are separate entities, each with separate
23 defenses and separate due process nghts.
24 Further, and as stated in R4C0RP, INC.'s demurrer filed concurrently herewith, the
25 allegations against it are vague and uncertain. R4C0RP, INC. was not in existence at the time of
26 this constmction project It wzis not a party to any ofthe constmction contracts at issue. It is not
27 a proper party to tiiis case. It was only named after Richard Ruybalid declared bankmptcy, It
28 was named by Plaintiffs solely in an effort to find a "deep pocket" somewhere. R4C0RP, INC.
NIC549/1039312-1 5
MEMO OF POINTS AND AUTHORITIES IN SUPPORT OF REPLY TO OPPOSITION
TO MOTION TO QUASH/STRIKE/DISMISS
1 will suffer actual prejudice as it will be forced to defend against Plaintiffs' baseless claims for
2 which it has not been alleged to be connected to in any ofthe pleadings on file.
3 HI.
CONCLUSION
4
For the foregoing reasons, R4C0RP, INC. respectfully requests that this court grant this
5
Motion to Quash, Strike and Dismiss Plaintiffs' Doe Amendment as to R4C0RP, INC.
6
7 Dated: October 1 ? - , 2010 ARCHER NORRIS
8
9
10 Gregory K. Federico
Attomeys for Defendant R4C0RP, DsfC, a
11 California Corporation
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NIC549/1039312-1
MEMO OF POINTS AND AUTHORITIES IN SUPPORT OF REPLY TO OPPOSITION
TO MOTION TO QUASH/STRIKE/DISMISS
1 PROOF OF SERVICE
2 Name of Action: Rodney Abbott, et al. y. Ronald Paul Britschgi, et al.
Court and Action No: Sacramento County Superior No. 07AS04450
3
I, Marie Cantreii, declare that I am over the age of 18 years and not a party to this action
4 or proceeding. My business address is 301 University Avenue, Suite 110, Sacramento, California'
95825. On October 22, 2010,1 caused the following document(s) to be served-
5
DEFENDANT R4C0RP'S MEMO OF POINTS AND AUTHORITIES IN SUPPORT OF
6 REPLY TO PLAINTIFFS' MOTION OPPOSITION TO MOTION TO
QUASH/STRIKE/DISMISS SERVICE OF AMENDED SUMMONS AND DOE AMENDMENT
7
by placing a tme copy ofthe documents listed above, enclosed in a sealed envelope,
8 addressed as set forth below, for collection and mailing on the date and at the business
address shown above following our ordinary business practices. I am readily familiar
9 with this business' practice for collection and processing of correspondence for
10 mailing with the United States Postal Service. On the same day that a sealed envelope
is placed for collection and mailing, it is deposited in the ordinary course of business
11 with the United States Postal Service with postagefiallyprepaid.
12 r~| By having a tme copy ofthe document(s) listed above ttansmitted by facsimile to the
person(s) at the facsimile number(s) set forth below before 5:00 p.m. The transmission
13 was reported as complete without error by a report issued by the transmitting facsimile
14 machine.
15 By placing a tme copy ofthe document(s) listed above, in a box or other facility
regularly maintained by UPS, an express service camer, or delivered to a courier or
16 driver authorized by the express service carrier to receive documents, in an envelope
designated by the express service carrier, with delivery fees paid or provided for,
17 addressed as set forth below.
18 r-\ by having personal delivery by FIRST LEGAL SUPPORT SERVICES a tme copy of
19 the document(s) listed above, enclosed in a sealed envelope, to the person(s) and at the
address(es) set forth below. '
20
21 [SEE ATTACHED SERVICE LIST]
22
23 I declare under penalty ofperjury that the foregoing is tme and correct. Executed on
October 22, 2010, at Sacramento, Califomia.
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NIC341/608293-1
PROOF OF SERVICE
1 Service List
2
VIA OVERNIGHT MAIL
3 Stephanie Fineili PLAINTIFFS
Law Offices of Stephanie J. Finelli
4 1007 Seventh Street, Suite 500 Tel. (916) 443-2144
Sacramento, CA 95814 Fax: (916) 443-1511
5 E-mail sfinelll700@yahoo com
6
VIA REGULAR MAIL
7 Richard D. Sopp Counsel for CADRE DESIGN GROUP, INC.
Wheatley Sopp LLP
8 1004 River Rock Drive, Suite 245 Tel (916) 988-3857
Folsom, CA 95630 Fax: (916) 988-5296
9 Email rds@mwsblaw com
10 Mark Smith In Pro Per
8549 Willow Valley Place
11 Granite Bay, CA 95746
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NIC341/608293-1 2
SERVICE LIST
Preview
1 Todd A. Jones (Bar No. 198024) tj ones@archemorris. com 2 Gregory K. Federico (BarNo. 242184) gfederico(^archemorris.com 3 ARCHER NORRIS FILED/ENDORSED A Professional Law Corporation 4 301 University Avenue, Suite 110 Sacramento, Califomia 95825 OCT 2 2 2010 5 Telephone: 916 646.2480 Facsimile: 916.646.5696 6 By.__ L KENNEDY. DEPUTY CLERK Attomeys for Defendant 7 R4C0RP, INC., a Califomia Corporation 8 SUPERIOR COURT OF CALIFORNIA 9 COUNTY OF SACRAMENTO 10 11 RODNEY ABBOTT and FLORENTINE CaseNo. 07AS04450 12 ABBOTT, MEMORANDUM OF POINTS AND 13 Plaintiffs, AUTHORITIES IN SUPPORT OF REPLY TO PLAINTIFFS' OPPOSITION TO 14 MOTION TO QUASH/STRIKE/DISMISS SERVICE OF AMENDED SUMMONS AND 15 RONALD PAUL BRITSCHGI, et al., DOE AMENDMENT F S ^ 16 Defendants. Date: October 29,2010 %d^^ Time: 2:00 p.m. 17 Dept: 53 18 Action Filed: September 24,2007 19 AND RELATED CROSS-ACTIONS. 20 I. 21 INTRODUCTION 22 Defendant R4C0RP, INC., a Califomia Corporation ("R4C0RP, INC.") hereby f i ^ l i i ^ j 23 memorandum of points and authorities in support of its reply to Plaintiffs FLORENTINE and 24 RODNEY ABBOTT'S ("Plaintiffs") Opposition to R4C0RP, INC.'s Motion to Quash, Strike, 25 and Dismiss Plaintiffs' Doe Amendment to the Second Amended Complaint ("SAC"). 26 /// 27 /// 28 NIC549/1039312-1 MEMO OF POINTS AND AUTHORITIES IN SUPPORT OF REPLY TO OPPOSITION TO MOTION TO QUASH/STRIKE/DISMISS 1 II. ARGUMENT 2 A. Service Upon R4C0RP, INC. Was Improper 3 Nani Keeshan is not the agent for service of process for R4C0RP, INC. She currently is 4 not and never has been authorized to accept service on behalf of the corporation. Plaintiffs' 5 reference to the Ingham case and the actions of R4C0RP, INC.'s attorneys in that case is 6 irrelevant to the present case. The bottom line, per the declarations of Mrs. Keeshan and 7 Mr. Ruybalid is that Mrs. Keeshan was not authorized to accept service on behalf of the 8 corporation at any time, including the Ingham case and this case. 9 Plaintiffs failed to serve the proper agent for R4C0RP, INC. Moreover, in their attempts 10 to effect substituted service, Plaintiffs' process server failed to ask Mrs. Keeshan who was "in 11 charge" ofthe office, who could accept service, and the process server failed to inform her ofthe 12 contents ofthe documents that were served on her. This would have revealed that she was not 13 authorized to accept service. The accusation that both Mr. Ruybalid and Mrs. Keeshan are 14 testifying falsely is improper, unfounded and misplaced. 15 After being notified in the moving papers that Plaintiffs' attempted service was defective. 16 Plaintiffs apparently attempted to correct their mistake and personally serve the proper agent for 17 service of process. We now know that Richard Ruybalid, the agent for R4C0RP, INC., was 18 personally served with the amended summons and second amended complaint on or about 19 October 8, 2010 by a process server retained by Plaintiffs. (See Paragraph 3 ofthe Declaration of 20 Gregory K. Federico, filed and served concurrently herewith). 21 Plaintiffs' counsel has confirmed this, but has not filed the proof of service with the Court 22 for some unknown reason. Plaintiffs' counsel also would not provide me with a copy ofthe 23 executed proof of service upon my request so I could verify if R4C0RP, INC. was properly 24 served. If Plaintiffs establish that they corrected their improper service and personally served the 25 agent for R4C0RP, INC., the motion to quash service wili be withdrawn. 26 /// 27 /// 28 NIC549/1039312-1 2 MEMO OF POINTS AND AUTHORITIES IN SUPPORT OF REPLY TO OPPOSITION TO MOTION TO QUASH/STRIKE/DISMISS 1 B. The Court Should Dismiss The Doe Amendment As To R4CORP, INC. Pursuant to Code of Civil Procedure § 583.420(a)(1) 2 Plaintiffs have attempted to direct the court's attention awayfiromthe tme issue involved 3 in this motion - Plaintiffs' actual knowledge of R4C0RP, INC.'s existence as early as November 4 of 2008 and their blatant delay in naming R4C0RP, TNC. in this case. 5 1. Hennessey's Tavern Is Inapplicable To The Facts Of This Case 6 Plaintiffs' reliance on the holding in the Hennessey's Tavern case is misplaced. 7 Hennessey's Tavern holds that "as to defendants who are first named in an amended complaint 8 and aUeged to be the alter egos ofa defendant named in the onginal complaint, the action is 9 commenced at the time the amended complaint is filed first naming them as defendants." In the 10 present case, there are absolutely no alter-ego allegations contained in the complaint, first 11 amended complaint, second amended complaint, or doe amendment to complaint. 12 Further, Plaintiffs' reference to alter ego and successor liability theories is irrelevant to the 13 present motion unless and until those allegations are the subject of a pleading at issue in the case 14 It is improper for Plaintiffs to rely on such theories that are not properly before the Court. If 15 Plaintiffs would simply include their purported alter-ego theories and/or successor-in-interest 16 liability theories in a pleading, it could potentially resolve many ofthe issues related to the vague 17 and uncertain claims against R4C0RP, INC. that are the subject ofthis motion and the demurrer 18 filed concurrently herewith. 19 2. Plaintiffs' Delay In Filing The Doe Amendment Has Been Dilatory 20 And Caused R4C0RP, INC. To Suffer Preiudice 21 Plaintiffs have added R4C0RP, INC. to this action via Code of Civil Procedure § 474 - 22 the statute that allows a Plaintiff to designate fictitiously named defendants as Does when they are 23 ignorant of their trae names. However, "Once suit has been filed, unreasonable delay in filing an 24 amended pleading after discovering a Doe defendant's identity may bar a plaintiff from using the 25 fictitious name device. To preclude relation back on this basis, however, the opposing party must 26 show the plaintiffwas dilatory and that the defendant was prejudiced by the delay. Barrows v 27 American Motors Corp. (1983) 144 Cal.App. 3d 1,9. In A.N. v. Co. ofLA (2009) 171 Cal App. 28 NIC549/I039312-1 3 MEMO OF POINTS AND AUTHORITIES IN SUPPORT OF REPLY TO OPPOSITION TO MOTION TO QUASH/STRIKE/DISMISS 1 4th 1058,1065-67, the Court stated as follows: 2 In our view, three lessons may be drawn fiom Barrows: First, section 474 includes an implicit requirement that a plaintiff may not 3 "unreasonably delay" his or her filing ofa Doe amendment after learning a defendant's identity. Second, a defendant named in an 4 action by a Doe amendment under section 474 may challenge the amendment by way of an evidence-based motion, which argues that 5 the plaintiff "unreasonable delayed" his or her filing of the challenged amendment. Third, "unreasonable delay" within the 6 meaning of Barrows includes a prejudice element, which requires a showing by the defendant that he or she would suffer prejudice 7 fi-om plaintiff's delay in filing the Doe amendment. 8 In A.N. V Co. of LA, the Court concluded coxinsel's delay in filing and serving Doe 9 Amendments was unreasonable. It focused on several factors, including the fact that counsel 10 knew information, or had obtained access to information during the discovery process, regarding 11 the parties involved in a sexual assault of Plaintiff, yet they delayed in filing the Doe 12 Amendment. Id. at 1069. 13 a. Plaintiffs' Unreasonable Delay Is Dilatory 14 Plaintiffs had actual knowledge ofthe existence of R4CORP, INC. as early as November 15 10, 2008 upon issuance of verified responses to Form Interrogatories, Set One. Plaintiffs' admit 16 that these discovery responses gave them actual knowledge of R4C0RP, INC.'s existence. After 17 receiving actual knowledge of R4C0RP, INC. existence. Plaintiffs failed to further investigate 18 any details associated with R4C0RP, INC. They issued no written discovery, they chose not to 19 take the deposition of Richard Ruybalid, the owner ofthe company, they did not question CA 20 Constmction's foreman, Peter Atchison on the issue, and there is no indication they did any 21 independent research via the Califomia Secretary of State to determine the corporate details 22 associated with R4C0RP, INC. Plaintiffs waited over 17 months to file the Doe Amendment and 23 clearly failed to act once they had actual knowledge of R4C0RP, INC.'s existence 24 Plaintiffs' reference to Navigator's Insurance Company, potential coverage issues, and 25 reservation of rights letters are red herrings designed to divert the Court's attention away from 26 Plaintiffs' unreasonable delay. These alleged facts are irrelevant to the Court's determination of 27 whether Plaintiffs delay was unreasonable and whether that delay prejudiced R4C0RP, INC. As 28 such, R4C0RP, INC. requests that the Court disregard Plaintiffs' reference to these alleged facts. NIC549/10393I2-! 4 MEMO OF POINTS AND AUTHORITIES IN SUPPORT OP REPLY TO OPPOSITION TO MOTION TO QUASH/STRIKE/DISMISS 1 The facts gleaned from any bankruptcy proceeding were known to and capable of further 2 discovery as early as November 2008. Plaintiffs did nothing once it received this actual 3 knowledge. 4 b. Plaintiffs' Unreasonable Delay Results In Actual Prejudice 5 R4C0RP, INC. must also establish that the unreasonable delay has resulted in prejudice to 6 R4C0RP, INC. ]nAN. v. Co. of LA, the Court mled that prejudice did occur when a Doe 7 Defendant was brought into the matter shortly before trial because the party would face obvious 8 difficulties in preparing a defense for trial. Id. at 1068. Also, as discussed in the Hennessey's 9 Tavern case, the Court discussed the importance ofthe Court's jurisdiction over a defendant and 10 that each defendant be afforded their due process rights to notice and the opportunity to be heard 11 even if ".. .the alter ego defendant is considered to be identical with, i.e., the "other self of, the 12 defendant named in the original complaint." Hennessey's Tavern at 1360. 13 Trial is currently set for January 17,2011. The discovery cut-off is mid-December This 14 means that R4C0RP, INC., once it finally appears in the case, will have less than one month to 15 complete all necessary discovery to glean facts related to the claims against it in this matter. As 16 such, R4C0RP, INC. will suffer actual prejudice based on the fact that it will have inadequate 17 time to (1) discover the exact claims Plaintiffs are alleging against the Corporation; (2) collect 18 ample evidence on the merit of these claims; and (3) to adequately prepare the corporation's 19 defenses for trial. This prejudicially impacts R4C0RP, INC.'s due process rights. 20 Plaintiffs may attempt to argue that since Richard Ruybalid has participated in this case 21 through counsel of record since it was filed, R4C0RP, INC. has been afforded a proper defense. 22 This is not tme. Richard Ruybalid and R4C0RP. INC. are separate entities, each with separate 23 defenses and separate due process nghts. 24 Further, and as stated in R4C0RP, INC.'s demurrer filed concurrently herewith, the 25 allegations against it are vague and uncertain. R4C0RP, INC. was not in existence at the time of 26 this constmction project It wzis not a party to any ofthe constmction contracts at issue. It is not 27 a proper party to tiiis case. It was only named after Richard Ruybalid declared bankmptcy, It 28 was named by Plaintiffs solely in an effort to find a "deep pocket" somewhere. R4C0RP, INC. NIC549/1039312-1 5 MEMO OF POINTS AND AUTHORITIES IN SUPPORT OF REPLY TO OPPOSITION TO MOTION TO QUASH/STRIKE/DISMISS 1 will suffer actual prejudice as it will be forced to defend against Plaintiffs' baseless claims for 2 which it has not been alleged to be connected to in any ofthe pleadings on file. 3 HI. CONCLUSION 4 For the foregoing reasons, R4C0RP, INC. respectfully requests that this court grant this 5 Motion to Quash, Strike and Dismiss Plaintiffs' Doe Amendment as to R4C0RP, INC. 6 7 Dated: October 1 ? - , 2010 ARCHER NORRIS 8 9 10 Gregory K. Federico Attomeys for Defendant R4C0RP, DsfC, a 11 California Corporation 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 NIC549/1039312-1 MEMO OF POINTS AND AUTHORITIES IN SUPPORT OF REPLY TO OPPOSITION TO MOTION TO QUASH/STRIKE/DISMISS 1 PROOF OF SERVICE 2 Name of Action: Rodney Abbott, et al. y. Ronald Paul Britschgi, et al. Court and Action No: Sacramento County Superior No. 07AS04450 3 I, Marie Cantreii, declare that I am over the age of 18 years and not a party to this action 4 or proceeding. My business address is 301 University Avenue, Suite 110, Sacramento, California' 95825. On October 22, 2010,1 caused the following document(s) to be served- 5 DEFENDANT R4C0RP'S MEMO OF POINTS AND AUTHORITIES IN SUPPORT OF 6 REPLY TO PLAINTIFFS' MOTION OPPOSITION TO MOTION TO QUASH/STRIKE/DISMISS SERVICE OF AMENDED SUMMONS AND DOE AMENDMENT 7 by placing a tme copy ofthe documents listed above, enclosed in a sealed envelope, 8 addressed as set forth below, for collection and mailing on the date and at the business address shown above following our ordinary business practices. I am readily familiar 9 with this business' practice for collection and processing of correspondence for 10 mailing with the United States Postal Service. On the same day that a sealed envelope is placed for collection and mailing, it is deposited in the ordinary course of business 11 with the United States Postal Service with postagefiallyprepaid. 12 r~| By having a tme copy ofthe document(s) listed above ttansmitted by facsimile to the person(s) at the facsimile number(s) set forth below before 5:00 p.m. The transmission 13 was reported as complete without error by a report issued by the transmitting facsimile 14 machine. 15 By placing a tme copy ofthe document(s) listed above, in a box or other facility regularly maintained by UPS, an express service camer, or delivered to a courier or 16 driver authorized by the express service carrier to receive documents, in an envelope designated by the express service carrier, with delivery fees paid or provided for, 17 addressed as set forth below. 18 r-\ by having personal delivery by FIRST LEGAL SUPPORT SERVICES a tme copy of 19 the document(s) listed above, enclosed in a sealed envelope, to the person(s) and at the address(es) set forth below. ' 20 21 [SEE ATTACHED SERVICE LIST] 22 23 I declare under penalty ofperjury that the foregoing is tme and correct. Executed on October 22, 2010, at Sacramento, Califomia. 24 25 26 27 28 NIC341/608293-1 PROOF OF SERVICE 1 Service List 2 VIA OVERNIGHT MAIL 3 Stephanie Fineili PLAINTIFFS Law Offices of Stephanie J. Finelli 4 1007 Seventh Street, Suite 500 Tel. (916) 443-2144 Sacramento, CA 95814 Fax: (916) 443-1511 5 E-mail sfinelll700@yahoo com 6 VIA REGULAR MAIL 7 Richard D. Sopp Counsel for CADRE DESIGN GROUP, INC. Wheatley Sopp LLP 8 1004 River Rock Drive, Suite 245 Tel (916) 988-3857 Folsom, CA 95630 Fax: (916) 988-5296 9 Email rds@mwsblaw com 10 Mark Smith In Pro Per 8549 Willow Valley Place 11 Granite Bay, CA 95746 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 NIC341/608293-1 2 SERVICE LIST