Preview
ACCIDENT, INJURY AND MEDICAL MALPRACTICE
ATTORNEYS OF CALIFORNIA, APC
Jeffrey D. Bohn, (SBN: 243870) E-FILED
2445 Capitol Street, Suite 105 4/23/2019 12:06 PM
Fresno, CA 93721 Superior Court of California
Telephone: (559) 485-1212 County of Fresno
Facsimile: (559) 485-1210 By: M. Sanchez, Deputy
Attorneys for Plaintiff
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF FRESNO
10
VW JOSE SANCHEZ, Case No.: 18CECG04143
12 INDEX OF EXHIBITS IN REPLY TO
Plaintiffs,
13 vs. DEFENDANT’S OPPOSITION TO
MOTION TO COMPEL ANSWERS TO
14 BA VANG, et al., DISCOVERY AND FOR SANCTIONS
15
Defendants. Date: May 1, 2019
16 Time: 3:30 p.m.
Dept.: 403
17
Hon. Rosemary McGuire
18
19
20 EXHIB DESCRIPTION:
21
NO.:
22 Plaintiffs “Notice of Errata and Correction to Certificate of Service re
Motion to Compel Answers to Discovery and for Sanctions” (Filed March 25,
23 2019)
24
Plaintiff's “First Amended Certificate of Service by Mail” (Filed March 25,
25 2019)
26 Defendant’s “Request for Judicial Notice,” which was filed with a
“Declaration of Joseph D. Cooper, Sr. in Opposition to Notice of Motion and
27
Motion to Compel Answers to Discovery and for Sanctions” attached. (Filed
28 March 18, 2019)
1
Index of Exhibits
Defendant’s “Opposition to Notice of Motion and Motion to Recover Costs of
Substitute Service on Pether Robert Thao Chay,” which was filed with a
“Declaration of Joseph D. Cooper, Sr. in Opposition to Notice of Motion and
motion to Recover Costs of Service on Pether Robert Thao Chay” attached.
(Filed March 18, 2019)
Defendant’s “Opposition to Notice of Motion and Motion to Compel Answers
to Discovery and for Sanctions” (April 3, 2019)
10 “Declaration of Pether Robert Thao Chay” (April 2, 2019)
il Defense counsel’s March 14, 2019 “meet and confer” letter
12 Plaintiff's counsel’s March 18, 2019 meet and confer letter
10 13 Certified mail return receipt for the re-served motion to compel
1 14 Metadata & Fax Confirmation: Plaintiffs counsel’s February 5, 2019 meet
and confer letter
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13 15 Metadata & Fax Confirmation: Plaintiffs counsel’s March 18, 2019 meet and
confer letter
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Index of Exhibits
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28 Exhibit 5
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Index of Exhibits
ACCIDENT, INJURY AND MEDICAL MALPRACTICE
ATTORNEYS OF CALIFORNIA, APC
Jeffrey D. Bohn, (SBN: 243870)
2445 Capitol Street, Suite 105
Fresno, alifornia 93721
Telephone: (559) 485-1212
Facsimile: (559) 485-1210 E-FILED
3/25/2019 12:01 PM
Attorney for Plaintiff, Superior Court of California
County of Fresno
By: |. Herrera, Deputy
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF FRESNO
10
ul JOSE SANCHEZ, CASE NO. 18CECG04143
12
Plaintiff, NOTICE OF ERRATA AND
13 vs. CORRECTION TO CERTIFICATE OF
SERVICE RE MOTION TO COMPEL
14 BA VANG, et al., ANSWERS TO DISCOVERY AND FOR
SANCTIONS
15
Defendant,
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21 TO THE COURT AND ALL PARTIES TO THIS ACTION:
22
PLEASE TAKE NOTICE that counsel for Plaintiff JOSE SANCHEZ respectfully
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hereby provide notice of errata and correction to the Certificate of Service of Plaintiff's Notice
24 of Motion and Motion to Compel Answers to Discovery Without Objection and for Sanctions,
25 which was filed on February 13, 2019, at 3:01 p.m.
26
The documents referenced in the Certificate of Service contain typographical errors by
27
referencing “Defendant.”
28
Plaintiff's counsel is concurrently filing a First Amended Certificate of Service that
corrects this mistake and makes no other changes. A copy of this amended certificate of Service,
to be filed concurrently herewith, is also attached here as Exhibit 1.
No party will suffer prejudice by the correction of this simple clerical error. The hearing
associated with the Declaration is set for May 1, 2019. There is still ample time to submit the
6 above-referenced corrections and give notice to opposing parties pursuant to Code of Civil
Procedure sections 1005.
Respectfully Submitted,
9 Dated: March 25, 2019 ACCIDENT, INJURY AND MEDICAL MALPRACTICE
ATTORNEYS OF CALIFORNIA, APC
10
A __
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Jeffrey D. Bohn. Esq.
13 Attorneys for Plaintiff
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ACCIDENT, INJURY AND MEDICAL MALPRACTICE
ATTORNEYS OF CALIFORNIA, APC
Jeffrey D. Bohn, (SBN: 243870)
2445 Capitol Street, Suite 105
Fresno, CA 93721
Telephone: (559) 485-1212
Facsimile: (559) 485-1210
Attorneys for Plaintiffs
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF FRESNO
10
ll JOSE SANCHEZ, et al., ) Case No.: 18CECG04143
12 Plaintiffs, ) FIRST AMENDED CERTIFICATE OF
vs. ) SERVICE BY MAIL
13
14 BA VANG, et al., ) [Code Civ. Proc., §§ 1013; 1013a, subd. (3)]
15 Defendants.
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17
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19 I, Christopher Garcez, declare and state as follows:
20 I am over the age of 18 years and not a party to this cause. My business address is 2445
21 Capitol Street, Suite 105, Fresno, California 93721, and | am employed in the county where the
22 mailing described below occurred. I am readily familiar with the business’ practice for collection|
23 and processing of correspondence for mailing with the United States Postal Service.
24 On February 13, 2019, I served the following document(s):
25 a. NOTICE OF MOTION AND MOTION TO COMPEL ANSWERS TO
26 DISCOVERY WITHOUT OBJECTION AND FOR SANCTIONS
27 POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO COMPEL
28 ANSWERS TO DISCOVERY WITHOUT OBJECTION AND FOR SANCTIONS
1
Certificate of Service
DECLARATION OF JEFFREY D. BOHN IN SUPPORT OF MOTION TO.
COMPEL ANSWERS TO DISCOVERY WITHOUT OBJECTION AND FOR
SANCTIONS
d [PROPOSED]JORDER
by placing the foregoing in a sealed envelope for collection and mailing and depositing the
6 foregoing with the United States Postal Service on the same day in the ordinary course of
business.
The envelope was addressed to the following:
9 Joseph Cooper
Cooper & Cooper, LLP
10 5756 North Marks Avenue, Suite 160
ll Fresno, CA 93711
122 I declare under penalty of perjury under the laws of the State of California that the
*
13 foregoing is true and correct. Signed this 25th day of March 2019, in Fresno, California.
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Certificate of Service
PROOF OF SERVICE
STATE OF CALIFORNIA )
COUNTY OF FRESNO )
I am employed in the County of Fresno, State of California. I am over the age of 18
years and not a party to the within action. My business address is 2445 Capitol Street, Suite 105
Fresno, CA 93721. | am employed in the office ofa member of the Bar of this Court, at whosq
6 direction I made this service.
On March 25, 2019, I served the foregoing documents described as: NOTICE OF}
ERRATA AND CORRECTION TO CERTIFICATE OF SERVICE RE MOTION TO COMPEL]
ANSWERS TO DISCOVERY AND FOR SANCTIONS, by placing [x] true copies thereot
and/or the [ ] original document enclosed in sealed envelopes as follows:
9
10
Joseph D. Cooper, Sr.
COOPER & COOPER
i 5756 North Marks Avenue, Suite 160
Fresno, CA 93711
122
13 IX/ BY MAIL AS FOLLOWS: | am “readily familiar” with the firm’s practice of collectior
and processing correspondence for mailing. Under that pra ce it would be deposited with the
M4 U.S. Postal Service on that same day with postage thereon fully prepaid at Fresno, California ir
i the ordinary course of business. I am aware that on motion of the party served, service is
15
presumed invalid if post cancellation date or postage meter date is more than one day after date
16 of deposit for mailing on affidavit.
17 if BY PERSONAL SERVICE: | caused such envelope to be delivered by hand to the
offices of the addressee listed above.
18
19 // BY FEDERAL EXPRESS: | caused said envelope to be sent by Federal Express to the
addressee(s) marked with a +++.
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df BY TELECOPIER/FAX: In addition to the above service by mail, hand delivery oy
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Federal Express, I caused said document(s) to be transmitted by telecopier at approximately|
2 a.m./p.m. to the addressee(s) marked with a“.
23 // BY ELECTRONIC EMAIL: I caused said document(s) to be transmitted to the email
address(es) of the addressee(s) designated.
24
Executed on March 25, 019 at Fresno, California. I declare under penalty of perjury
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under the laws of the State of California that the foregoing is true and correct.
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a
Gbuissephey r eee
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PROOF OF SERVICE
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28 Exhibit 6
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Index of Exhibits
ACCIDENT, INJURY AND MEDICAL MALPRACTICE
ATTORNEYS OF CALIFORNIA, APC
Jeffrey D. Bohn, (SBN: 243870)
2445 Capitol Street, Suite 105
Fresno, CA 93721
Telephone: (559) 485-1212
Facsimile: (559) 485-1210 E-FILED
3/25/2019 12:01 PM
Attorneys for Plaintiffs Superior Court of California
County of Fresno
By: |. Herrera, Deputy
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF FRESNO
10
ll JOSE SANCHEZ, et al., ) Case No.: 18CECG04143
12 Plaintiffs, ) FIRST AMENDED CERTIFICATE OF
vs. ) SERVICE BY MAIL
13
14 BA VANG, et al., ) [Code Civ. Proc., §§ 1013; 1013a, subd. (3)]
15 Defendants.
16
17
18
19 I, Christopher Garcez, declare and state as follows:
20 I am over the age of 18 years and not a party to this cause. My business address is 2445
21 Capitol Street, Suite 105, Fresno, California 93721, and | am employed in the county where the
22 mailing described below occurred. I am readily familiar with the business’ practice for collection|
23 and processing of correspondence for mailing with the United States Postal Service.
24 On February 13, 2019, I served the following document(s):
25 a. NOTICE OF MOTION AND MOTION TO COMPEL ANSWERS TO
26 DISCOVERY WITHOUT OBJECTION AND FOR SANCTIONS
27 POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO COMPEL
28 ANSWERS TO DISCOVERY WITHOUT OBJECTION AND FOR SANCTIONS
1
Certificate of Service
DECLARATION OF JEFFREY D. BOHN IN SUPPORT OF MOTION TO.
COMPEL ANSWERS TO DISCOVERY WITHOUT OBJECTION AND FOR
SANCTIONS
d [PROPOSED]JORDER
by placing the foregoing in a sealed envelope for collection and mailing and depositing the
6 foregoing with the United States Postal Service on the same day in the ordinary course of
business.
The envelope was addressed to the following:
9 Joseph Cooper
Cooper & Cooper, LLP
10 5756 North Marks Avenue, Suite 160
ll Fresno, CA 93711
122 I declare under penalty of perjury under the laws of the State of California that the
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13 foregoing is true and correct. Signed this 25th day of March 2019, in Fresno, California.
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Certificate of Service
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28 Exhibit 7
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Index of Exhibits
JOSEPH D. COOPER SR., #139993
COOPER & COOPER
ATTORNEYS AT LAW E-FILED
5756 N. Marks Avenue, Suite 160 3/18/2019 6:51 PM
Fresno, California 93711
FRESNO COUNTY SUPERIOR COURT
Telephone (559) 442-1650
By: J. Nelson, Deputy
4 Facsimile (559) 442-1659
Attorneys for Defendants,
PETHER ROBERT THAO CHAY (erroneously sued herein as “ROBERT PETHER”) and BA
VANG
SUPERIOR COURT OF CALIFORNIA
g COUNTY OF FRESNO - UNLIMITED
10
11 JOSE SANCHEZ, an individual, CASE NO. 18CECG04143
12 Plaintiff,
REQUEST FOR JUDICIAL
13 VS. NOTICE[EVIDENCE CODE
SECTION 452(d)(1) AND 453]
14 BA VANG, an individual; ROBERT
PETHER, an individual; RUBEN
15 RAMIREZ, an individual, and DOES 1 TO
20 inclusive, Complaint Filed: November 8, 2018
16
Defendants.
17
18
19 COMES NOW, opposing party, Pether Robert Thao Chay, who hereby requests that
20 this court, pursuant to Evidence Code Section 452(d)(1) and 453 take judicial notice of the
21 Opposition to Motion to Recover Costs and the Declaration of Joseph D. Cooper Sr. and the
22 attachments thereto in support of Opposition to Motion to Recover Costs.
23
COOPER & COOPER
24
25
Dated: March B , 2019 By
26 JOS s . COOPER SR.
Attor
27 PETH
(erron
ia
eys for Defendants,
Y/ OBERT THAO CHAY
isly sued herein as “ROBERT
28 PETHER”) and BA VANG
Nilsecty\70178.19F - Pether, et al. adv, Sanchez\Motions\Request
for Judicial Notice 3.18.19.wpd
70178.19F Request for Judicial Notice [Evidence Code Section 452(d)(1) and 453]
JOSEPH D. COOPER SR., #139993
COOPER & COOPER
ATTORNEYSAT LAW
5756 N. Marks Avenue, Suite 160
Fresno, California 93711
Telephone (559) 442-1650
Facsimile (559) 442-1659
Attorneys for Defendants,
PETHER ROBERT THAO CHAY (erroneously sued herein as “ROBERT PETHER”) and BA
VANG
SUPERIOR COURT OF CALIFORNIA
COUNTY OF FRESNO - UNLIMITED
10
iW JOSE SANCHEZ, an individual, ) CASE NO. 18CECG04143
12 Plaintiff,
DECLARATION OF JOSEPH D.
13 VS. COOPER, SR. IN OPPOSITION
TO NOTICE OF MOTION AND
14 BA VANG, an individual; ROBERT MOTION TO COMPEL
PETHER, an individual; RUBEN ANSWERS TO DISCOVERY AND
15 RAMIREZ, an individual, and DOES 1 TO FOR SANCTIONS
20 inclusive,
16 DATE: May 1, 2019
Defendants. TIME: 3:30 pan.
17 DEPT: 403
18 Complaint Filed: November 8, 2018
19 I, Joseph D. Cooper, Sr. hereby declare as follows:
20 L Jam an attorney at law duly licensed to practice before all courts of this State and
21 ain the attorney of record for opposing party, PETHER ROBERT THAO CHAY (erroneously sued
22 herein as “ROBERT PETHER”).
23 2. I was never provided with a copy of any discovery purportedly served upon my
24 client. I only discovered the Motion te Compel when I reviewed the court docket. The instant
25 motion was not served upon me.
26 3 That on or about March 14, 2019, I caused to be served upon moving patty
27 responses to discovery for both of my clients and J authored correspondence to counsel for moving
28 party regarding the discovery. A true and correct copy of my March 14, 2019 correspondence and
70178.19F Declaration of Joseph D, Cooper, Sr.
the accompanying discovery responses are attached hereto and incorporated herein by reference
as Exhibit “A.”
4 My fee for this client is $250.00 an hour. I spent approximately 2.5 hours
reviewing the law with regard to the instant compulsion motion and the service of pleadings. |
anticipate spending 1.5 hours reviewing the Reply to my client’s Opposition and attending the
Court hearing of this matter.
I declare under penalty of perjury under the laws of the State of California that the
foregoing is true and correct and if called to testify as to the above, I could and would truthfully
do so. This Declaration was executed in Fresno, Cal
10
ul
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on na fh JOSEPH
i
D/ COOPER SR.
Attorneys/for Defendants,
PETHER ROBERT THAO CHAY (erroneously
13 sued herein as “ROBERT PETHER”) and
BA VANG
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15 N.secty\70178.19F - Pether, et al. ady, Sanchez\Motions\Deel of IDC to motion for discovery.rev.wpd
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70178.19F Declaration of Joseph D. Cooper, Sr.
Pether, et al. adv. Sanchez
Fresno County Superior Court Case No. 18CECG04143
PROOF OF SERVICE
lam a citizen of the United States of America, a resident of Fresno County, California,
over the age of eighteen 18 years and not a party to the within entitled cause or matter. My
business address is 5756 N, Marks Avenue, Suite 160, Fresno, California 93711. On the date
this document was executed, specified below, I served the foregoing;REQUEST FOR
JUDICIAL NOTICE[EVIDENCE CODE SECTION 452(d)(1) AND 453], DECLARATION
OF JOSEPH D. COOPER, SR. IN OPPOSITION TO NOTICE OF MOTION AND
10 MOTION TO COMPEL ANSWERS TO DISCOVERY AND FOR SANCTIONS to the
11 parties in this action by serving 0 an original,® a true copy as follows:
12 X_ (By Mail) Tam readily familiar with the business practice at my place of business for
collection and processing of correspondence for mailing with the United States Postal
13 Service. Correspondence so collected and processed is deposited with the United States
Postal Service that same day in the ordinary course of business.
14
(By Overnight) By placing the document(s) listed above in a sealed envelope, and placing
15 the same for overnight delivery by Federal Express at Fresno, California.
16 (By Hand) I caused each envelope to be delivered by hand.
17 (By Telecopy) I caused each document to be sent by telecopier.
18 (By Electronic Mail) I caused the document listed above to be sent by electronic mail to
the parties listed below.
19
20 Jeffrey D. Bohn, Esq.
Accident, Injury & Medical Malpractice
21 Attorneys of California, APC
2445 Capitol Street, Suite 105
22 Fresno, CA 93721
Phone: (559)485-1212
23 Fax: (559)485-1210
Representing Plaintiff, JOSE SANCHEZ
24
25 I declare under the penalty of perjury that the foregoing is true and correct. Executed and
26 served on March 18 3 2019, at Fresno, California.
27
28
Kathy mut
70178.19F PROOF OF SERVICE
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28 Exhibit 8
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Index of Exhibits
JOSEPH D. COOPER SR., #139993
COOPER & COOPER
ATTORNEYS AT LAW
E-FILED
5756 N. Marks Avenue, Suite 160
Fresno, California 93711
3/18/2019 6:51 PM
Telephone (539) 442-1650 FRESNO COUNTY SUPERIOR COURT
Facsimile (359) 442-1659 By: J. Nelson, Deputy
Attorneys for Defendants,
PETHER ROBERT THAO CHAY (erroneously sued herein as “ROBERT PETHER”) and BA
VANG
SUPERIOR COURT OF CALIFORNIA
COUNTY OF FRESNO - UNLIMITED
10
It JOSE SANCHEZ, an individual, CASE NO. 18CECG04143
12 Plaintiff,
OPPOSITION TO NOTICE OF
13 VS. MOTION AND MOTION TO
RECOVER COSTS OF
14 BA VANG, an individual; ROBERT SUBSTITUTE SERVICE ON
PETHER, an individual; RUBEN PETHER ROBERT THAO CHAY
15 RAMIREZ, an individual, and DOES 1 TO
20 inclusive, DATE: May 1, 2019
16 TIME: 3:30 p.m.
Defendants. DEPT: 403
17
Complaint Filed: November 8, 2018
18
19 COMES NOW, Defendant, PETHER ROBERT THAO CHAY (erroneously sued herein
20 as “ROBERT PETHER”), by and through his counsel of record, Joseph D. Cooper Sr., of Cooper
21 & Cooper, who hereby opposes Plaintiff's Motion to Recover Costs of Substitute Service on
22 PETHER ROBERT THAO CHAY.
23 I
24 PREFATORY STATEMENT
25 Responding party, Defendant PETHER ROBERT THAO CHAY, is a second generation
26 immigrant from Thailand. Like many people, whether natural born citizens or new to the United
2? States, legal process is foreign to them. The same is true for opposing party. It is requested that
28 the Court take a long look at the heavy handed nature of the instant motion. Instead of electing
70178.19F OPPOSITION TO NOTICE OF MOTION AND MOTION TO RECOVER COSTS OF SUBSTITUTE,
SERVICE ON PETHER ROBERT THAO CHAY
to personally serve, Plaintiff sought service by other means. Plaintiff's counsel knew that service
upon either of the two defendants was disputed, but that consent would be obtained to voluntarily
respond. Plaintiff knew at that point, that not only was the Summons and Complaint being
challenged for lack of lawful service, and that any other service, including, but not limited to
discovery/form interrogatories, was going to be considered unlawful. Knowing these matters,
Plaintiff elects to file a Motion to Compel and does not serve it.
Il
PROCEDURAL DEFECT OF MOTION
In the Declaration of Plaintiff's counsel, there are a number of concerns. To begin with,
10 Moving Party is required to submit a Declaration in Support of the relief being sought. In the case
I at bench, the Declaration of Jeffrey D. Bohn in Support of Motion to Recover Costs of Substitute
12 Service on PETHER ROBERT THAO CHAY references that counsel is the attorney for Plaintiffs
13 SOFIA LUONG and DUC VIN LUONG. The caption of the Declaration references that counsel
14 is the attorney for “Plaintiffs” in the pleading template.
15 TW
16 MOVING PARTY IS NOT WITHOUT REMEDY
SHOULD THE COURT DENY THE INSTANT MOTION
17
18 Pursuant to Code of Civil Procedure section 1032 and 1033.5, service of process are
19 allowable costs to a prevailing party.
20 Iv
an IN THE CASE AT BENCH, MOVING PARTY’S
CLAIM IS THAT DEFENDANT DID NOT SIGN THE NOTICE AND
22 ACKNOWLEDGMENT OF RECEIPT
23 In Plaintiff's own moving papers at page 4, line 18 of the Memorandum of Points and
24 Authorities, Plaintiff admits:
25 “If Defendant fails to sign and return the acknowledgment, service is not
complete and will have to be made in some other manner.”
26
27 On the one hand, Plaintiff brings the instant motion to obtain cost of service, thereby
28 acknowledging that there was no service of process; yet, moving party also filed a Motion to
70178.19F OPPOSITION TO NOTICE OF MOTION AND MOTION TO RECOVER COSTS OF SUBSTITUTE
2 SERVICE ON PETHER ROBERT THAO CHAY
Compel Discovery Responses. Discovery responses would only be due from a served “party.”
v
PLAINTIFF HAS NOT MET HIS BURDEN
OF PROOF THAT HE COMPLIED WITH CCP §415,30
Plaintiff has not met his burden of proof in this matter. Plaintiff must have mailed a copy
of the Summons and Complaint, fogether with hvo copies of the notice and acknowledgment form
as well as areturn envelope, postage pre-paid addressed to the sender. [CCP $415.30]. Plaintiff
has not demonstrated that he complied with this requirement.
It is well settled that except for good cause, a party seeking reimbursement for costs of
10 service is a legitimate process. [CCP $415.30(d)}. As is referenced in the supporting
1 Declarations, good cause exists with which to deny moving party’s motion in its entirety.
12 VI
13 CONCLUSION
14 Procedurally, Plaintiff did not submit a Declaration in support of his motion. Moreover,
15 from a review of the moving papers, the heavy handed nature of the present motion, coupled with
16 the unserved Notice of Motion to Compel discovery, illustrates the nefarious back story in the
17 instant motion. Whenever Plaintiff claims he served opposing party with discovery which is the
18 subject of the Motion to Compel, Plaintiff knew that he had not lawfully received the Notice and
19 Acknowledgment of Receipt and thus, there had not been any service of process. Obviously, any
20 attempt to serve discovery on a person that has not made an appearance, is improper. That,
21 however, did not stop Plaintiff.
22 Mt
23 Mt
24 Mt
25 Mt
26 Mt
27 it
28 Mt
70178.19F OPPOSITION TO NOTICE OF MOTION AND MOTION TO RECOVER COSTS OF SUBSTITUTE
3 SERVICE ON PETHER ROBERT THAO CHAY
It is respectfully requested that this Court deny Plaintiff's motion. Plaintiffis not without
2 remedy should he prevail in this action.
3 Dated: March 2019 Respectfully submitted,
Y
COOPER fe COOPER
By
JOSE! OOPER SR.
Attorneys. fo Defendants,
PETH ROBERT THAO CHAY
(erroneously sued herein as “ROBERT
PETHER”) and BA VANG
10
1 NAceety\70178.19F- Pether, etal. adv. Sanchez\Motions\Opp to Min for Costs.rev.wpd
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70178.19F OPPOSITION TO NOTICE OF MOTION AND MOTION TO RECOVER COSTS OF SUBSTITUTE
4 SERVICE ON PETHER ROBERT THAO CHAY
JOSEPH D. COOPER SR., #139993
COOPER & COOPER
ATTORNEYS AT LAW
5756 N. Marks Avenue, Suite 160
Fresno, California 93711
Telephone (559) 442-1650
Facsimile (559) 442-1659
Attorneys for Defendants,
PETHER ROBERT THAO CHAY (erroneously sued herein as “ROBERT PETHER”) and BA
VANG
SUPERIOR COURT OF CALIFORNIA
COUNTY OF FRESNO - UNLIMITED
10
ll JOSE SANCHEZ, an individual, CASE NO. 18CECG04143
12 Plaintiff,
DECLARATION OF JOSEPH D.
13 vs. COOPER, SR, IN OPPOSITION
OF NOTICE OF MOTION AND
14 BA VANG, an individual; ROBERT MOTION TO RECOVER COSTS
PETHER, an individual, RUBEN OF SUBSTITUTE SERVICE ON
15 RAMIREZ, an individual, and DOES | TO PETHER ROBERT THAO CHAY
20 inclusive,
16 DATE: May 1, 2019
Defendants. TIME: 3:30 p.m,
17 DEPT: 403
18 Complaint Filed: November 8, 2018
19 I, Joseph D. Cooper, Sr. hereby declare as follows:
20 1 [am an attorney at law duly licensed to practice before all courts of this State and
21 am the attorney of record for opposing party, PETHER ROBERT THAO CHAY (erroneously sued
22 herein as “ROBERT PETHER”) and BA VANG.
23 2 On or around January 23, 2019, 1 was retained to represent the interests of
24 Defendants in the above-referenced matter.
25 3 Within two (2) weeks of my retention, I caused an Answer to be filed on behalf of
26 both Defendants in the above-referenced matter. Defendant BA VANG had not been served with
7 process andI obtained his written consent to voluntarily respond to the Complaint of Plaintiff.
28 Hl
70178.19F DECLARATION OF JOSEPH D. COOPER SR.
4. On or about January 23, 2019, I authored correspondence to counsel for Plaintiff,
JOSE SANCHEZ, regarding this case, including but not limited to, service of process. A true and
correct copy of my January 23, 2019, e-mail to Plaintiff's attorney is attached hereto and
incorporated herein by reference as Exhibit “A”. Therein, moving parties’ counsel was advised
that lawful service was disputed, but that notwithstanding, it was anticipated that consent could
be obtained and Plaintiff need not put forth any further efforts to serve or publish as consent was
likely and there was an invitation to call and further discuss ifnecessary. Instead, Plaintiff sought
to take a heavy handed approach. Additionally, knowing that Defendants took the position that
no lawful service of process had been undertaken, they would certainly take the position that any
10 discovery served by Plaintiffs would similarly be objectionable. Instead, Plaintiff has also filed
iH a Motion to Compel discovery.
2 5 On February 4, 2019, counsel for moving party acknowledged receipt of my
B January 23, 2019 e-mail. [A true and correct copy of the February 2, 2019 facsimile I received
14 from counsel for moving party is attached hereto and incorporated herein by reference as Exhibit
15 “B”.] Therein, he requested that because his e-mail “is bombarded daily,” future correspondence
16 should be by way of facsimile, That seemed to indicate to me that counsel for moving parties did
17 not look at his e-mail until February 4, 2019. Counsel for moving party also took the position that
18 the service of process upon both Defendants was effectuated. In light of the tenor of the
19 correspondence, and the fact that I had received consent from both clients to respond to the lawsuit
20 of Plaintiff, I caused to be filed a responsive pleading to the Complaint and that responsive
2E pleading was filed February 5, 2019.
22 6 On or about February 25, 2019, I noticed when reviewing the online court docket
23 in this matter, that not only was the instant Notice of Motion and Motion to Recover Costs of
24 Substitute Service of PETHER ROBERT THAO CHAY on file, but Plaintiff also filed a Notice
25 of Motionand Motion to Compel Answers to Discovery and for Sanctions. My client was lawfully
26 served with the Notice of Motion and Motion to Recover Costs of Substitute Service on PETHER
27 ROBERT THAO CHAY, but was never served with a Notice of Motion and Motion to Compel
28 Mt
70178.19F 2 DECLARATION OF JOSEPH D. COOPER SR.
Answers to Discovery and for Sanctions as is referenced in the proof of service accompanying the
Notice of Motion and Motion to Compe! Answers to Discovery and for Sanctions in the court file,
7 I do not know who Plaintiff's SOFIA LUONG and DUC VINH LUONG are.
Moving party references Plaintiffs SOFIA LUONG and DUC VINH LUONG on page 1, line 21
of the Declaration of Jeffrey D. Bohn in Support of Motion to Recover Costs of Personal Service.
The caption on all of the pleadings of moving party references “plaintiffs” in the plural. The only
known Plaintiff in this matter is moving party, JOSE SANCHEZ,
8 My charge for this client is $250 per hour. I have spent approximately 2 hours
preparing an Opposition to this Motion and | anticipate another 2 hours in appearing at the Court
10 hearing of this matter, reviewing the Reply and preparing for the hearing of this matter.
il 1 declare under penalty of perjury under the laws of the State of California that the
12 foregoing is true and correct and if called to testify as to the above, I could and would truthfully
13 do so and that this Declaration was executed in Fresno, el fornia,
7h
14
15 Dated: March (f » 2019
JOSE ., COOPER SR.
i
16 Attorney: t Defendants,
PETHE! OBERT THAO CHAY (erroneously
7 sued here: as “ROBERT PETHER”) and BA
VANG
18
19 Nasecty\70178.19F - Pether, et al. adv, Sanche\Motions\Decl of JDC.reviwpd
20
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70178.19F 3 DECLARATION OF JOSEPH D, COOPER SR.
EXHIBIT “A”
ol
i ar
aes
(
yer
Joe Cooper
From: Joe Cooper
Sent: Wednesday, January 23, 2019 10:23 AM
To: jeffreybohn@jdbohniaw.com
Subject: Fresno County Superior Court Case # 18CECG04143 ele”
Mr.Bohn:
Please be advised that | will be representing Defendant Vang and Pether. | am informed and believe that neither named
defendant has been lawfully served. As such, any discovery plaintiffs might have attempted to serve on either named
Defendant, would be unlawfully served.
| do note that plaintiffs have sent to presumably Infinity Insurance, a Notice and Acknowledgement of Receipt for both
named Defendants. | very well can obtain consent to voluntarily respond to the operative pleading and we can
thereafter move forward with this matter without further efforts by plaintiff to personally serve or publish service.
As | am sure you are aware, now that plaintiff is aware that there will be counsel representing a party which has not yet
responded to an operative pleading, plaintiff is duty bound to advise the Defendant/s counsel that plaintiff will be
seeking a default so Defendant can respond one way or another. As mentioned above, Defendants claim they have not
been lawfully served, but | expect to get consent to respond notwithstanding.
Thank you for your anticipated courtesies and cooperation. Throughout the pendency of this matter, please feel free to
call me at my office at your convenience. | appreciate your recent voice mail apologies about your past behaviors and
look forward to amicably resolving this case.
Joseph Donald Cooper Sr.
Cooper & Cooper LLP
5756 North Marks Suite 160
Fresno, CA.
93711
(559) 442-1650
EXHIBIT “B”
B
S-Feb-2019 69:24 From Bohn Fax pall
ACCIDENT, INJURY & MEDICAL MALPRACTICE
ATTORNEYS OF CALIFORNIA, APC
2445 CAPITOL STREET, SUITE 105
FRESNO, CA 93721
PHONE: (559) 485-341 22
FAX: (559) 485 1210
Jeffrey D. Bohn, Managing A fiomey
Febmary 4, 2019
Via Facsimile to: (559) 442-1659
Joseph Cooper, Sr.
Cooper& Cooper, LLP
5756 North Marks Avenue, Suite 160.
Fresno, CA 93711
Re: Sanchezv. Vang (Fresno County No. 18CECG04143
Dear Mr. Cooper:
Tam in receipt of your email of January 23, 2019. Although we have used email in the past, my
inbox is bombarded daily. From now on, correspondence by fax is preferable to email. Mr. Vang
and Mr, Pether were each properly served. A response to the complaint from each is overdue.
Please see the attached proofs of service.
Y our presumption that “plaintiffs have sent to presumably Infinity Insurance, a Notice and
Acknowledgement of Receipt for both named Defendants” is mistaken. The insurance company
is not a party to the action; the summons and complaint is never served to the insurance
company. However, your admission that the insurance carrier received the documents does
further indicate that the defendants were properly served and they tumed the documents over to
their carrier as per usual.
Based on the foregoing, discovery was also properly served to both defendants, and responses
are due on February 7. If you need an extension to respond, please let me know.
Thank you.
Sincerely,
/ a
z
Jeffrey D. Bohn
Attormey for Plaintiff
&& SCANNED
Pether, et al. adv. Sanchez
Fresno County Superior Court Case No. 18CECG04143
PROOF OF SERVICE
lam a citizen of the United States of America, a resident of Fresno County, California,
over the age of eighteen 18 years and not a parly to the within enfitled cause or matter. My
business address is 5756 N. Marks Avenue, Suite 160, Fresno, California 93711. On the date
this document was executed, specified below, I served the foregoing: OPPOSITION TO
NOTICE OF MOTION AND MOTION TO RECOVER COSTS OF SUBSTITUTE
SERVICE ON PETHER ROBERT THAO CHAY; DECLARATION OF JOSEPH D.
10 COOPER, SR. IN OPPOSITION OF NOTICE OF MOTION AND MOTION TO
1 RECOVER COSTS OF SUBSTITUTE SERVICE ON PETHER ROBERT THAO CHAY,
12 to the parties in this action by serving 5 an original, & a true copy as follows:
13 X_ (By Mail) | am readily familiar with the business practice at my place of business for
collection and processing of correspondence for mailing with the United States Postal
14 Service. Correspondence so collected and processed is deposited with the United States
Postal Service that same day in the ordinary course of business.
15
(By Overnight) By placing the document(s) listed above in a sealed envelope, and placing
16 the same for overnight delivery by Federal Express at Fresno, California.
17 (By Hand) I caused each envelope to be delivered by hand.
18 (By Telecopy) I caused cach document to be sent by telecopier.
19 {By Electronic Mail) I caused the document listed above to be sent by electronic mail to
the parties listed below.
20
24 Jeffrey D. Bohn, Esq.
Accident, Injury & Medical Malpractice
22 Attorneys of California, APC
2445 Capitol Street, Suite 105
23 Fresno, CA 93721
Phone: (559)485-1212
24 Fax: (559)485-121
Preview
ACCIDENT, INJURY AND MEDICAL MALPRACTICE ATTORNEYS OF CALIFORNIA, APC Jeffrey D. Bohn, (SBN: 243870) E-FILED 2445 Capitol Street, Suite 105 4/23/2019 12:06 PM Fresno, CA 93721 Superior Court of California Telephone: (559) 485-1212 County of Fresno Facsimile: (559) 485-1210 By: M. Sanchez, Deputy Attorneys for Plaintiff SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF FRESNO 10 VW JOSE SANCHEZ, Case No.: 18CECG04143 12 INDEX OF EXHIBITS IN REPLY TO Plaintiffs, 13 vs. DEFENDANT’S OPPOSITION TO MOTION TO COMPEL ANSWERS TO 14 BA VANG, et al., DISCOVERY AND FOR SANCTIONS 15 Defendants. Date: May 1, 2019 16 Time: 3:30 p.m. Dept.: 403 17 Hon. Rosemary McGuire 18 19 20 EXHIB DESCRIPTION: 21 NO.: 22 Plaintiffs “Notice of Errata and Correction to Certificate of Service re Motion to Compel Answers to Discovery and for Sanctions” (Filed March 25, 23 2019) 24 Plaintiff's “First Amended Certificate of Service by Mail” (Filed March 25, 25 2019) 26 Defendant’s “Request for Judicial Notice,” which was filed with a “Declaration of Joseph D. Cooper, Sr. in Opposition to Notice of Motion and 27 Motion to Compel Answers to Discovery and for Sanctions” attached. (Filed 28 March 18, 2019) 1 Index of Exhibits Defendant’s “Opposition to Notice of Motion and Motion to Recover Costs of Substitute Service on Pether Robert Thao Chay,” which was filed with a “Declaration of Joseph D. Cooper, Sr. in Opposition to Notice of Motion and motion to Recover Costs of Service on Pether Robert Thao Chay” attached. (Filed March 18, 2019) Defendant’s “Opposition to Notice of Motion and Motion to Compel Answers to Discovery and for Sanctions” (April 3, 2019) 10 “Declaration of Pether Robert Thao Chay” (April 2, 2019) il Defense counsel’s March 14, 2019 “meet and confer” letter 12 Plaintiff's counsel’s March 18, 2019 meet and confer letter 10 13 Certified mail return receipt for the re-served motion to compel 1 14 Metadata & Fax Confirmation: Plaintiffs counsel’s February 5, 2019 meet and confer letter 12 13 15 Metadata & Fax Confirmation: Plaintiffs counsel’s March 18, 2019 meet and confer letter 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 Index of Exhibits 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Exhibit 5 3 Index of Exhibits ACCIDENT, INJURY AND MEDICAL MALPRACTICE ATTORNEYS OF CALIFORNIA, APC Jeffrey D. Bohn, (SBN: 243870) 2445 Capitol Street, Suite 105 Fresno, alifornia 93721 Telephone: (559) 485-1212 Facsimile: (559) 485-1210 E-FILED 3/25/2019 12:01 PM Attorney for Plaintiff, Superior Court of California County of Fresno By: |. Herrera, Deputy SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF FRESNO 10 ul JOSE SANCHEZ, CASE NO. 18CECG04143 12 Plaintiff, NOTICE OF ERRATA AND 13 vs. CORRECTION TO CERTIFICATE OF SERVICE RE MOTION TO COMPEL 14 BA VANG, et al., ANSWERS TO DISCOVERY AND FOR SANCTIONS 15 Defendant, 16 17 18 19 20 21 TO THE COURT AND ALL PARTIES TO THIS ACTION: 22 PLEASE TAKE NOTICE that counsel for Plaintiff JOSE SANCHEZ respectfully 23 hereby provide notice of errata and correction to the Certificate of Service of Plaintiff's Notice 24 of Motion and Motion to Compel Answers to Discovery Without Objection and for Sanctions, 25 which was filed on February 13, 2019, at 3:01 p.m. 26 The documents referenced in the Certificate of Service contain typographical errors by 27 referencing “Defendant.” 28 Plaintiff's counsel is concurrently filing a First Amended Certificate of Service that corrects this mistake and makes no other changes. A copy of this amended certificate of Service, to be filed concurrently herewith, is also attached here as Exhibit 1. No party will suffer prejudice by the correction of this simple clerical error. The hearing associated with the Declaration is set for May 1, 2019. There is still ample time to submit the 6 above-referenced corrections and give notice to opposing parties pursuant to Code of Civil Procedure sections 1005. Respectfully Submitted, 9 Dated: March 25, 2019 ACCIDENT, INJURY AND MEDICAL MALPRACTICE ATTORNEYS OF CALIFORNIA, APC 10 A __ i 122 Jeffrey D. Bohn. Esq. 13 Attorneys for Plaintiff l4 15 16 17 18 19 20 221 22 23 24 25 26 27 28 10 i 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 EXHIBIT 1 ACCIDENT, INJURY AND MEDICAL MALPRACTICE ATTORNEYS OF CALIFORNIA, APC Jeffrey D. Bohn, (SBN: 243870) 2445 Capitol Street, Suite 105 Fresno, CA 93721 Telephone: (559) 485-1212 Facsimile: (559) 485-1210 Attorneys for Plaintiffs SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF FRESNO 10 ll JOSE SANCHEZ, et al., ) Case No.: 18CECG04143 12 Plaintiffs, ) FIRST AMENDED CERTIFICATE OF vs. ) SERVICE BY MAIL 13 14 BA VANG, et al., ) [Code Civ. Proc., §§ 1013; 1013a, subd. (3)] 15 Defendants. 16 17 18 19 I, Christopher Garcez, declare and state as follows: 20 I am over the age of 18 years and not a party to this cause. My business address is 2445 21 Capitol Street, Suite 105, Fresno, California 93721, and | am employed in the county where the 22 mailing described below occurred. I am readily familiar with the business’ practice for collection| 23 and processing of correspondence for mailing with the United States Postal Service. 24 On February 13, 2019, I served the following document(s): 25 a. NOTICE OF MOTION AND MOTION TO COMPEL ANSWERS TO 26 DISCOVERY WITHOUT OBJECTION AND FOR SANCTIONS 27 POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO COMPEL 28 ANSWERS TO DISCOVERY WITHOUT OBJECTION AND FOR SANCTIONS 1 Certificate of Service DECLARATION OF JEFFREY D. BOHN IN SUPPORT OF MOTION TO. COMPEL ANSWERS TO DISCOVERY WITHOUT OBJECTION AND FOR SANCTIONS d [PROPOSED]JORDER by placing the foregoing in a sealed envelope for collection and mailing and depositing the 6 foregoing with the United States Postal Service on the same day in the ordinary course of business. The envelope was addressed to the following: 9 Joseph Cooper Cooper & Cooper, LLP 10 5756 North Marks Avenue, Suite 160 ll Fresno, CA 93711 122 I declare under penalty of perjury under the laws of the State of California that the * 13 foregoing is true and correct. Signed this 25th day of March 2019, in Fresno, California. 14 <— =: 15 16 17 18 19 20 21 33 23 24 25 26 27 28 2 Certificate of Service PROOF OF SERVICE STATE OF CALIFORNIA ) COUNTY OF FRESNO ) I am employed in the County of Fresno, State of California. I am over the age of 18 years and not a party to the within action. My business address is 2445 Capitol Street, Suite 105 Fresno, CA 93721. | am employed in the office ofa member of the Bar of this Court, at whosq 6 direction I made this service. On March 25, 2019, I served the foregoing documents described as: NOTICE OF} ERRATA AND CORRECTION TO CERTIFICATE OF SERVICE RE MOTION TO COMPEL] ANSWERS TO DISCOVERY AND FOR SANCTIONS, by placing [x] true copies thereot and/or the [ ] original document enclosed in sealed envelopes as follows: 9 10 Joseph D. Cooper, Sr. COOPER & COOPER i 5756 North Marks Avenue, Suite 160 Fresno, CA 93711 122 13 IX/ BY MAIL AS FOLLOWS: | am “readily familiar” with the firm’s practice of collectior and processing correspondence for mailing. Under that pra ce it would be deposited with the M4 U.S. Postal Service on that same day with postage thereon fully prepaid at Fresno, California ir i the ordinary course of business. I am aware that on motion of the party served, service is 15 presumed invalid if post cancellation date or postage meter date is more than one day after date 16 of deposit for mailing on affidavit. 17 if BY PERSONAL SERVICE: | caused such envelope to be delivered by hand to the offices of the addressee listed above. 18 19 // BY FEDERAL EXPRESS: | caused said envelope to be sent by Federal Express to the addressee(s) marked with a +++. 20 df BY TELECOPIER/FAX: In addition to the above service by mail, hand delivery oy 221 Federal Express, I caused said document(s) to be transmitted by telecopier at approximately| 2 a.m./p.m. to the addressee(s) marked with a“. 23 // BY ELECTRONIC EMAIL: I caused said document(s) to be transmitted to the email address(es) of the addressee(s) designated. 24 Executed on March 25, 019 at Fresno, California. I declare under penalty of perjury 25 under the laws of the State of California that the foregoing is true and correct. 26 7 27 a Gbuissephey r eee 28 _ I PROOF OF SERVICE 10 iW 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Exhibit 6 4 Index of Exhibits ACCIDENT, INJURY AND MEDICAL MALPRACTICE ATTORNEYS OF CALIFORNIA, APC Jeffrey D. Bohn, (SBN: 243870) 2445 Capitol Street, Suite 105 Fresno, CA 93721 Telephone: (559) 485-1212 Facsimile: (559) 485-1210 E-FILED 3/25/2019 12:01 PM Attorneys for Plaintiffs Superior Court of California County of Fresno By: |. Herrera, Deputy SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF FRESNO 10 ll JOSE SANCHEZ, et al., ) Case No.: 18CECG04143 12 Plaintiffs, ) FIRST AMENDED CERTIFICATE OF vs. ) SERVICE BY MAIL 13 14 BA VANG, et al., ) [Code Civ. Proc., §§ 1013; 1013a, subd. (3)] 15 Defendants. 16 17 18 19 I, Christopher Garcez, declare and state as follows: 20 I am over the age of 18 years and not a party to this cause. My business address is 2445 21 Capitol Street, Suite 105, Fresno, California 93721, and | am employed in the county where the 22 mailing described below occurred. I am readily familiar with the business’ practice for collection| 23 and processing of correspondence for mailing with the United States Postal Service. 24 On February 13, 2019, I served the following document(s): 25 a. NOTICE OF MOTION AND MOTION TO COMPEL ANSWERS TO 26 DISCOVERY WITHOUT OBJECTION AND FOR SANCTIONS 27 POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO COMPEL 28 ANSWERS TO DISCOVERY WITHOUT OBJECTION AND FOR SANCTIONS 1 Certificate of Service DECLARATION OF JEFFREY D. BOHN IN SUPPORT OF MOTION TO. COMPEL ANSWERS TO DISCOVERY WITHOUT OBJECTION AND FOR SANCTIONS d [PROPOSED]JORDER by placing the foregoing in a sealed envelope for collection and mailing and depositing the 6 foregoing with the United States Postal Service on the same day in the ordinary course of business. The envelope was addressed to the following: 9 Joseph Cooper Cooper & Cooper, LLP 10 5756 North Marks Avenue, Suite 160 ll Fresno, CA 93711 122 I declare under penalty of perjury under the laws of the State of California that the * 13 foregoing is true and correct. Signed this 25th day of March 2019, in Fresno, California. 14 <— =: 15 16 17 18 19 20 21 33 23 24 25 26 27 28 2 Certificate of Service 10 iW 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Exhibit 7 5 Index of Exhibits JOSEPH D. COOPER SR., #139993 COOPER & COOPER ATTORNEYS AT LAW E-FILED 5756 N. Marks Avenue, Suite 160 3/18/2019 6:51 PM Fresno, California 93711 FRESNO COUNTY SUPERIOR COURT Telephone (559) 442-1650 By: J. Nelson, Deputy 4 Facsimile (559) 442-1659 Attorneys for Defendants, PETHER ROBERT THAO CHAY (erroneously sued herein as “ROBERT PETHER”) and BA VANG SUPERIOR COURT OF CALIFORNIA g COUNTY OF FRESNO - UNLIMITED 10 11 JOSE SANCHEZ, an individual, CASE NO. 18CECG04143 12 Plaintiff, REQUEST FOR JUDICIAL 13 VS. NOTICE[EVIDENCE CODE SECTION 452(d)(1) AND 453] 14 BA VANG, an individual; ROBERT PETHER, an individual; RUBEN 15 RAMIREZ, an individual, and DOES 1 TO 20 inclusive, Complaint Filed: November 8, 2018 16 Defendants. 17 18 19 COMES NOW, opposing party, Pether Robert Thao Chay, who hereby requests that 20 this court, pursuant to Evidence Code Section 452(d)(1) and 453 take judicial notice of the 21 Opposition to Motion to Recover Costs and the Declaration of Joseph D. Cooper Sr. and the 22 attachments thereto in support of Opposition to Motion to Recover Costs. 23 COOPER & COOPER 24 25 Dated: March B , 2019 By 26 JOS s . COOPER SR. Attor 27 PETH (erron ia eys for Defendants, Y/ OBERT THAO CHAY isly sued herein as “ROBERT 28 PETHER”) and BA VANG Nilsecty\70178.19F - Pether, et al. adv, Sanchez\Motions\Request for Judicial Notice 3.18.19.wpd 70178.19F Request for Judicial Notice [Evidence Code Section 452(d)(1) and 453] JOSEPH D. COOPER SR., #139993 COOPER & COOPER ATTORNEYSAT LAW 5756 N. Marks Avenue, Suite 160 Fresno, California 93711 Telephone (559) 442-1650 Facsimile (559) 442-1659 Attorneys for Defendants, PETHER ROBERT THAO CHAY (erroneously sued herein as “ROBERT PETHER”) and BA VANG SUPERIOR COURT OF CALIFORNIA COUNTY OF FRESNO - UNLIMITED 10 iW JOSE SANCHEZ, an individual, ) CASE NO. 18CECG04143 12 Plaintiff, DECLARATION OF JOSEPH D. 13 VS. COOPER, SR. IN OPPOSITION TO NOTICE OF MOTION AND 14 BA VANG, an individual; ROBERT MOTION TO COMPEL PETHER, an individual; RUBEN ANSWERS TO DISCOVERY AND 15 RAMIREZ, an individual, and DOES 1 TO FOR SANCTIONS 20 inclusive, 16 DATE: May 1, 2019 Defendants. TIME: 3:30 pan. 17 DEPT: 403 18 Complaint Filed: November 8, 2018 19 I, Joseph D. Cooper, Sr. hereby declare as follows: 20 L Jam an attorney at law duly licensed to practice before all courts of this State and 21 ain the attorney of record for opposing party, PETHER ROBERT THAO CHAY (erroneously sued 22 herein as “ROBERT PETHER”). 23 2. I was never provided with a copy of any discovery purportedly served upon my 24 client. I only discovered the Motion te Compel when I reviewed the court docket. The instant 25 motion was not served upon me. 26 3 That on or about March 14, 2019, I caused to be served upon moving patty 27 responses to discovery for both of my clients and J authored correspondence to counsel for moving 28 party regarding the discovery. A true and correct copy of my March 14, 2019 correspondence and 70178.19F Declaration of Joseph D, Cooper, Sr. the accompanying discovery responses are attached hereto and incorporated herein by reference as Exhibit “A.” 4 My fee for this client is $250.00 an hour. I spent approximately 2.5 hours reviewing the law with regard to the instant compulsion motion and the service of pleadings. | anticipate spending 1.5 hours reviewing the Reply to my client’s Opposition and attending the Court hearing of this matter. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct and if called to testify as to the above, I could and would truthfully do so. This Declaration was executed in Fresno, Cal 10 ul 12 on na fh JOSEPH i D/ COOPER SR. Attorneys/for Defendants, PETHER ROBERT THAO CHAY (erroneously 13 sued herein as “ROBERT PETHER”) and BA VANG 14 15 N.secty\70178.19F - Pether, et al. ady, Sanchez\Motions\Deel of IDC to motion for discovery.rev.wpd 16 17 18 19 20 21 22 23 24 25 26 27 28 70178.19F Declaration of Joseph D. Cooper, Sr. Pether, et al. adv. Sanchez Fresno County Superior Court Case No. 18CECG04143 PROOF OF SERVICE lam a citizen of the United States of America, a resident of Fresno County, California, over the age of eighteen 18 years and not a party to the within entitled cause or matter. My business address is 5756 N, Marks Avenue, Suite 160, Fresno, California 93711. On the date this document was executed, specified below, I served the foregoing;REQUEST FOR JUDICIAL NOTICE[EVIDENCE CODE SECTION 452(d)(1) AND 453], DECLARATION OF JOSEPH D. COOPER, SR. IN OPPOSITION TO NOTICE OF MOTION AND 10 MOTION TO COMPEL ANSWERS TO DISCOVERY AND FOR SANCTIONS to the 11 parties in this action by serving 0 an original,® a true copy as follows: 12 X_ (By Mail) Tam readily familiar with the business practice at my place of business for collection and processing of correspondence for mailing with the United States Postal 13 Service. Correspondence so collected and processed is deposited with the United States Postal Service that same day in the ordinary course of business. 14 (By Overnight) By placing the document(s) listed above in a sealed envelope, and placing 15 the same for overnight delivery by Federal Express at Fresno, California. 16 (By Hand) I caused each envelope to be delivered by hand. 17 (By Telecopy) I caused each document to be sent by telecopier. 18 (By Electronic Mail) I caused the document listed above to be sent by electronic mail to the parties listed below. 19 20 Jeffrey D. Bohn, Esq. Accident, Injury & Medical Malpractice 21 Attorneys of California, APC 2445 Capitol Street, Suite 105 22 Fresno, CA 93721 Phone: (559)485-1212 23 Fax: (559)485-1210 Representing Plaintiff, JOSE SANCHEZ 24 25 I declare under the penalty of perjury that the foregoing is true and correct. Executed and 26 served on March 18 3 2019, at Fresno, California. 27 28 Kathy mut 70178.19F PROOF OF SERVICE 10 W 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Exhibit 8 6 Index of Exhibits JOSEPH D. COOPER SR., #139993 COOPER & COOPER ATTORNEYS AT LAW E-FILED 5756 N. Marks Avenue, Suite 160 Fresno, California 93711 3/18/2019 6:51 PM Telephone (539) 442-1650 FRESNO COUNTY SUPERIOR COURT Facsimile (359) 442-1659 By: J. Nelson, Deputy Attorneys for Defendants, PETHER ROBERT THAO CHAY (erroneously sued herein as “ROBERT PETHER”) and BA VANG SUPERIOR COURT OF CALIFORNIA COUNTY OF FRESNO - UNLIMITED 10 It JOSE SANCHEZ, an individual, CASE NO. 18CECG04143 12 Plaintiff, OPPOSITION TO NOTICE OF 13 VS. MOTION AND MOTION TO RECOVER COSTS OF 14 BA VANG, an individual; ROBERT SUBSTITUTE SERVICE ON PETHER, an individual; RUBEN PETHER ROBERT THAO CHAY 15 RAMIREZ, an individual, and DOES 1 TO 20 inclusive, DATE: May 1, 2019 16 TIME: 3:30 p.m. Defendants. DEPT: 403 17 Complaint Filed: November 8, 2018 18 19 COMES NOW, Defendant, PETHER ROBERT THAO CHAY (erroneously sued herein 20 as “ROBERT PETHER”), by and through his counsel of record, Joseph D. Cooper Sr., of Cooper 21 & Cooper, who hereby opposes Plaintiff's Motion to Recover Costs of Substitute Service on 22 PETHER ROBERT THAO CHAY. 23 I 24 PREFATORY STATEMENT 25 Responding party, Defendant PETHER ROBERT THAO CHAY, is a second generation 26 immigrant from Thailand. Like many people, whether natural born citizens or new to the United 2? States, legal process is foreign to them. The same is true for opposing party. It is requested that 28 the Court take a long look at the heavy handed nature of the instant motion. Instead of electing 70178.19F OPPOSITION TO NOTICE OF MOTION AND MOTION TO RECOVER COSTS OF SUBSTITUTE, SERVICE ON PETHER ROBERT THAO CHAY to personally serve, Plaintiff sought service by other means. Plaintiff's counsel knew that service upon either of the two defendants was disputed, but that consent would be obtained to voluntarily respond. Plaintiff knew at that point, that not only was the Summons and Complaint being challenged for lack of lawful service, and that any other service, including, but not limited to discovery/form interrogatories, was going to be considered unlawful. Knowing these matters, Plaintiff elects to file a Motion to Compel and does not serve it. Il PROCEDURAL DEFECT OF MOTION In the Declaration of Plaintiff's counsel, there are a number of concerns. To begin with, 10 Moving Party is required to submit a Declaration in Support of the relief being sought. In the case I at bench, the Declaration of Jeffrey D. Bohn in Support of Motion to Recover Costs of Substitute 12 Service on PETHER ROBERT THAO CHAY references that counsel is the attorney for Plaintiffs 13 SOFIA LUONG and DUC VIN LUONG. The caption of the Declaration references that counsel 14 is the attorney for “Plaintiffs” in the pleading template. 15 TW 16 MOVING PARTY IS NOT WITHOUT REMEDY SHOULD THE COURT DENY THE INSTANT MOTION 17 18 Pursuant to Code of Civil Procedure section 1032 and 1033.5, service of process are 19 allowable costs to a prevailing party. 20 Iv an IN THE CASE AT BENCH, MOVING PARTY’S CLAIM IS THAT DEFENDANT DID NOT SIGN THE NOTICE AND 22 ACKNOWLEDGMENT OF RECEIPT 23 In Plaintiff's own moving papers at page 4, line 18 of the Memorandum of Points and 24 Authorities, Plaintiff admits: 25 “If Defendant fails to sign and return the acknowledgment, service is not complete and will have to be made in some other manner.” 26 27 On the one hand, Plaintiff brings the instant motion to obtain cost of service, thereby 28 acknowledging that there was no service of process; yet, moving party also filed a Motion to 70178.19F OPPOSITION TO NOTICE OF MOTION AND MOTION TO RECOVER COSTS OF SUBSTITUTE 2 SERVICE ON PETHER ROBERT THAO CHAY Compel Discovery Responses. Discovery responses would only be due from a served “party.” v PLAINTIFF HAS NOT MET HIS BURDEN OF PROOF THAT HE COMPLIED WITH CCP §415,30 Plaintiff has not met his burden of proof in this matter. Plaintiff must have mailed a copy of the Summons and Complaint, fogether with hvo copies of the notice and acknowledgment form as well as areturn envelope, postage pre-paid addressed to the sender. [CCP $415.30]. Plaintiff has not demonstrated that he complied with this requirement. It is well settled that except for good cause, a party seeking reimbursement for costs of 10 service is a legitimate process. [CCP $415.30(d)}. As is referenced in the supporting 1 Declarations, good cause exists with which to deny moving party’s motion in its entirety. 12 VI 13 CONCLUSION 14 Procedurally, Plaintiff did not submit a Declaration in support of his motion. Moreover, 15 from a review of the moving papers, the heavy handed nature of the present motion, coupled with 16 the unserved Notice of Motion to Compel discovery, illustrates the nefarious back story in the 17 instant motion. Whenever Plaintiff claims he served opposing party with discovery which is the 18 subject of the Motion to Compel, Plaintiff knew that he had not lawfully received the Notice and 19 Acknowledgment of Receipt and thus, there had not been any service of process. Obviously, any 20 attempt to serve discovery on a person that has not made an appearance, is improper. That, 21 however, did not stop Plaintiff. 22 Mt 23 Mt 24 Mt 25 Mt 26 Mt 27 it 28 Mt 70178.19F OPPOSITION TO NOTICE OF MOTION AND MOTION TO RECOVER COSTS OF SUBSTITUTE 3 SERVICE ON PETHER ROBERT THAO CHAY It is respectfully requested that this Court deny Plaintiff's motion. Plaintiffis not without 2 remedy should he prevail in this action. 3 Dated: March 2019 Respectfully submitted, Y COOPER fe COOPER By JOSE! OOPER SR. Attorneys. fo Defendants, PETH ROBERT THAO CHAY (erroneously sued herein as “ROBERT PETHER”) and BA VANG 10 1 NAceety\70178.19F- Pether, etal. adv. Sanchez\Motions\Opp to Min for Costs.rev.wpd 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 70178.19F OPPOSITION TO NOTICE OF MOTION AND MOTION TO RECOVER COSTS OF SUBSTITUTE 4 SERVICE ON PETHER ROBERT THAO CHAY JOSEPH D. COOPER SR., #139993 COOPER & COOPER ATTORNEYS AT LAW 5756 N. Marks Avenue, Suite 160 Fresno, California 93711 Telephone (559) 442-1650 Facsimile (559) 442-1659 Attorneys for Defendants, PETHER ROBERT THAO CHAY (erroneously sued herein as “ROBERT PETHER”) and BA VANG SUPERIOR COURT OF CALIFORNIA COUNTY OF FRESNO - UNLIMITED 10 ll JOSE SANCHEZ, an individual, CASE NO. 18CECG04143 12 Plaintiff, DECLARATION OF JOSEPH D. 13 vs. COOPER, SR, IN OPPOSITION OF NOTICE OF MOTION AND 14 BA VANG, an individual; ROBERT MOTION TO RECOVER COSTS PETHER, an individual, RUBEN OF SUBSTITUTE SERVICE ON 15 RAMIREZ, an individual, and DOES | TO PETHER ROBERT THAO CHAY 20 inclusive, 16 DATE: May 1, 2019 Defendants. TIME: 3:30 p.m, 17 DEPT: 403 18 Complaint Filed: November 8, 2018 19 I, Joseph D. Cooper, Sr. hereby declare as follows: 20 1 [am an attorney at law duly licensed to practice before all courts of this State and 21 am the attorney of record for opposing party, PETHER ROBERT THAO CHAY (erroneously sued 22 herein as “ROBERT PETHER”) and BA VANG. 23 2 On or around January 23, 2019, 1 was retained to represent the interests of 24 Defendants in the above-referenced matter. 25 3 Within two (2) weeks of my retention, I caused an Answer to be filed on behalf of 26 both Defendants in the above-referenced matter. Defendant BA VANG had not been served with 7 process andI obtained his written consent to voluntarily respond to the Complaint of Plaintiff. 28 Hl 70178.19F DECLARATION OF JOSEPH D. COOPER SR. 4. On or about January 23, 2019, I authored correspondence to counsel for Plaintiff, JOSE SANCHEZ, regarding this case, including but not limited to, service of process. A true and correct copy of my January 23, 2019, e-mail to Plaintiff's attorney is attached hereto and incorporated herein by reference as Exhibit “A”. Therein, moving parties’ counsel was advised that lawful service was disputed, but that notwithstanding, it was anticipated that consent could be obtained and Plaintiff need not put forth any further efforts to serve or publish as consent was likely and there was an invitation to call and further discuss ifnecessary. Instead, Plaintiff sought to take a heavy handed approach. Additionally, knowing that Defendants took the position that no lawful service of process had been undertaken, they would certainly take the position that any 10 discovery served by Plaintiffs would similarly be objectionable. Instead, Plaintiff has also filed iH a Motion to Compel discovery. 2 5 On February 4, 2019, counsel for moving party acknowledged receipt of my B January 23, 2019 e-mail. [A true and correct copy of the February 2, 2019 facsimile I received 14 from counsel for moving party is attached hereto and incorporated herein by reference as Exhibit 15 “B”.] Therein, he requested that because his e-mail “is bombarded daily,” future correspondence 16 should be by way of facsimile, That seemed to indicate to me that counsel for moving parties did 17 not look at his e-mail until February 4, 2019. Counsel for moving party also took the position that 18 the service of process upon both Defendants was effectuated. In light of the tenor of the 19 correspondence, and the fact that I had received consent from both clients to respond to the lawsuit 20 of Plaintiff, I caused to be filed a responsive pleading to the Complaint and that responsive 2E pleading was filed February 5, 2019. 22 6 On or about February 25, 2019, I noticed when reviewing the online court docket 23 in this matter, that not only was the instant Notice of Motion and Motion to Recover Costs of 24 Substitute Service of PETHER ROBERT THAO CHAY on file, but Plaintiff also filed a Notice 25 of Motionand Motion to Compel Answers to Discovery and for Sanctions. My client was lawfully 26 served with the Notice of Motion and Motion to Recover Costs of Substitute Service on PETHER 27 ROBERT THAO CHAY, but was never served with a Notice of Motion and Motion to Compel 28 Mt 70178.19F 2 DECLARATION OF JOSEPH D. COOPER SR. Answers to Discovery and for Sanctions as is referenced in the proof of service accompanying the Notice of Motion and Motion to Compe! Answers to Discovery and for Sanctions in the court file, 7 I do not know who Plaintiff's SOFIA LUONG and DUC VINH LUONG are. Moving party references Plaintiffs SOFIA LUONG and DUC VINH LUONG on page 1, line 21 of the Declaration of Jeffrey D. Bohn in Support of Motion to Recover Costs of Personal Service. The caption on all of the pleadings of moving party references “plaintiffs” in the plural. The only known Plaintiff in this matter is moving party, JOSE SANCHEZ, 8 My charge for this client is $250 per hour. I have spent approximately 2 hours preparing an Opposition to this Motion and | anticipate another 2 hours in appearing at the Court 10 hearing of this matter, reviewing the Reply and preparing for the hearing of this matter. il 1 declare under penalty of perjury under the laws of the State of California that the 12 foregoing is true and correct and if called to testify as to the above, I could and would truthfully 13 do so and that this Declaration was executed in Fresno, el fornia, 7h 14 15 Dated: March (f » 2019 JOSE ., COOPER SR. i 16 Attorney: t Defendants, PETHE! OBERT THAO CHAY (erroneously 7 sued here: as “ROBERT PETHER”) and BA VANG 18 19 Nasecty\70178.19F - Pether, et al. adv, Sanche\Motions\Decl of JDC.reviwpd 20 2I 22 23 24 25 26 27 28 70178.19F 3 DECLARATION OF JOSEPH D, COOPER SR. EXHIBIT “A” ol i ar aes ( yer Joe Cooper From: Joe Cooper Sent: Wednesday, January 23, 2019 10:23 AM To: jeffreybohn@jdbohniaw.com Subject: Fresno County Superior Court Case # 18CECG04143 ele” Mr.Bohn: Please be advised that | will be representing Defendant Vang and Pether. | am informed and believe that neither named defendant has been lawfully served. As such, any discovery plaintiffs might have attempted to serve on either named Defendant, would be unlawfully served. | do note that plaintiffs have sent to presumably Infinity Insurance, a Notice and Acknowledgement of Receipt for both named Defendants. | very well can obtain consent to voluntarily respond to the operative pleading and we can thereafter move forward with this matter without further efforts by plaintiff to personally serve or publish service. As | am sure you are aware, now that plaintiff is aware that there will be counsel representing a party which has not yet responded to an operative pleading, plaintiff is duty bound to advise the Defendant/s counsel that plaintiff will be seeking a default so Defendant can respond one way or another. As mentioned above, Defendants claim they have not been lawfully served, but | expect to get consent to respond notwithstanding. Thank you for your anticipated courtesies and cooperation. Throughout the pendency of this matter, please feel free to call me at my office at your convenience. | appreciate your recent voice mail apologies about your past behaviors and look forward to amicably resolving this case. Joseph Donald Cooper Sr. Cooper & Cooper LLP 5756 North Marks Suite 160 Fresno, CA. 93711 (559) 442-1650 EXHIBIT “B” B S-Feb-2019 69:24 From Bohn Fax pall ACCIDENT, INJURY & MEDICAL MALPRACTICE ATTORNEYS OF CALIFORNIA, APC 2445 CAPITOL STREET, SUITE 105 FRESNO, CA 93721 PHONE: (559) 485-341 22 FAX: (559) 485 1210 Jeffrey D. Bohn, Managing A fiomey Febmary 4, 2019 Via Facsimile to: (559) 442-1659 Joseph Cooper, Sr. Cooper& Cooper, LLP 5756 North Marks Avenue, Suite 160. Fresno, CA 93711 Re: Sanchezv. Vang (Fresno County No. 18CECG04143 Dear Mr. Cooper: Tam in receipt of your email of January 23, 2019. Although we have used email in the past, my inbox is bombarded daily. From now on, correspondence by fax is preferable to email. Mr. Vang and Mr, Pether were each properly served. A response to the complaint from each is overdue. Please see the attached proofs of service. Y our presumption that “plaintiffs have sent to presumably Infinity Insurance, a Notice and Acknowledgement of Receipt for both named Defendants” is mistaken. The insurance company is not a party to the action; the summons and complaint is never served to the insurance company. However, your admission that the insurance carrier received the documents does further indicate that the defendants were properly served and they tumed the documents over to their carrier as per usual. Based on the foregoing, discovery was also properly served to both defendants, and responses are due on February 7. If you need an extension to respond, please let me know. Thank you. Sincerely, / a z Jeffrey D. Bohn Attormey for Plaintiff && SCANNED Pether, et al. adv. Sanchez Fresno County Superior Court Case No. 18CECG04143 PROOF OF SERVICE lam a citizen of the United States of America, a resident of Fresno County, California, over the age of eighteen 18 years and not a parly to the within enfitled cause or matter. My business address is 5756 N. Marks Avenue, Suite 160, Fresno, California 93711. On the date this document was executed, specified below, I served the foregoing: OPPOSITION TO NOTICE OF MOTION AND MOTION TO RECOVER COSTS OF SUBSTITUTE SERVICE ON PETHER ROBERT THAO CHAY; DECLARATION OF JOSEPH D. 10 COOPER, SR. IN OPPOSITION OF NOTICE OF MOTION AND MOTION TO 1 RECOVER COSTS OF SUBSTITUTE SERVICE ON PETHER ROBERT THAO CHAY, 12 to the parties in this action by serving 5 an original, & a true copy as follows: 13 X_ (By Mail) | am readily familiar with the business practice at my place of business for collection and processing of correspondence for mailing with the United States Postal 14 Service. Correspondence so collected and processed is deposited with the United States Postal Service that same day in the ordinary course of business. 15 (By Overnight) By placing the document(s) listed above in a sealed envelope, and placing 16 the same for overnight delivery by Federal Express at Fresno, California. 17 (By Hand) I caused each envelope to be delivered by hand. 18 (By Telecopy) I caused cach document to be sent by telecopier. 19 {By Electronic Mail) I caused the document listed above to be sent by electronic mail to the parties listed below. 20 24 Jeffrey D. Bohn, Esq. Accident, Injury & Medical Malpractice 22 Attorneys of California, APC 2445 Capitol Street, Suite 105 23 Fresno, CA 93721 Phone: (559)485-1212 24 Fax: (559)485-121