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  • ELENITA RUBIO ET AL VS. TRAVELFAST INTERNATIONAL INC. A CALIFORNIA ET AL PERSONAL INJURY/PROPERTY DAMAGE - NON-VEHICLE RELATED document preview
  • ELENITA RUBIO ET AL VS. TRAVELFAST INTERNATIONAL INC. A CALIFORNIA ET AL PERSONAL INJURY/PROPERTY DAMAGE - NON-VEHICLE RELATED document preview
  • ELENITA RUBIO ET AL VS. TRAVELFAST INTERNATIONAL INC. A CALIFORNIA ET AL PERSONAL INJURY/PROPERTY DAMAGE - NON-VEHICLE RELATED document preview
  • ELENITA RUBIO ET AL VS. TRAVELFAST INTERNATIONAL INC. A CALIFORNIA ET AL PERSONAL INJURY/PROPERTY DAMAGE - NON-VEHICLE RELATED document preview
  • ELENITA RUBIO ET AL VS. TRAVELFAST INTERNATIONAL INC. A CALIFORNIA ET AL PERSONAL INJURY/PROPERTY DAMAGE - NON-VEHICLE RELATED document preview
  • ELENITA RUBIO ET AL VS. TRAVELFAST INTERNATIONAL INC. A CALIFORNIA ET AL PERSONAL INJURY/PROPERTY DAMAGE - NON-VEHICLE RELATED document preview
  • ELENITA RUBIO ET AL VS. TRAVELFAST INTERNATIONAL INC. A CALIFORNIA ET AL PERSONAL INJURY/PROPERTY DAMAGE - NON-VEHICLE RELATED document preview
  • ELENITA RUBIO ET AL VS. TRAVELFAST INTERNATIONAL INC. A CALIFORNIA ET AL PERSONAL INJURY/PROPERTY DAMAGE - NON-VEHICLE RELATED document preview
						
                                

Preview

1 Damian M. Dolin, Esq., SBN 220867 Ryan H. Nell, Esq., SBN 284648 2 Julia M. Dalzell, Esq., SBN 323335 PETTIT KOHN INGRASSIA LUTZ & DOLIN PC ELECTRONICALLY 3 11622 El Camino Real, Suite 300 F I L E D San Diego, CA 92130 Superior Court of California, 4 Telephone: (858) 755-8500 County of San Francisco Facsimile: (858) 755-8504 07/09/2020 5 E-mail: ddolin@pettitkohn.com Clerk of the Court rnell@pettitkohn.com BY: RONNIE OTERO 6 jdalzell@pettitkohn.com Deputy Clerk 7 Attorneys for Plaintiffs ELENITA RUBIO, NUNILO RUBIO, JR., 8 NATHANIEL RUBIO, and NOEL RUBIO 9 SUPERIOR COURT OF THE STATE OF CALIFORNIA 10 FOR THE COUNTY OF SAN FRANCISCO – CIVIC CENTER COURTHOUSE 11 12 ELENITA RUBIO, an individual; CASE NO.: CGC-20-582278 NUNILO RUBIO, JR., an individual; 13 NATHANIEL RUBIO, an individual; and PLAINTIFFS ELENITA RUBIO, NUNILO NOEL RUBIO, an individual, RUBIO, JR., NATHANIEL RUBIO, AND 14 NOEL RUBIO’S OBJECTION TO Plaintiffs, DEFENDANT TRAVELFAST 15 INTERNATIONAL, INC.’S REPLY IN v. SUPPORT OF MOTION TO DISMISS ON 16 THE GROUNDS OF FORUM NON TRAVELFAST INTERNATIONAL INC., CONVENIENS AND EVIDENCE 17 a California corporation; MANGO TOURS, SUBMITTED IN SUPPORT THEREOF an entity of form unknown; and DOES 1 18 through 50, inclusive, Date: July 13, 2020 Time: 9:30 a.m. 19 Defendants. Dept.: 302 Judge: Hon. Ethan P. Schulman 20 Filed: November 13, 2019 21 Trial: Not set 22 Plaintiffs ELENITA RUBIO, NUNILO RUBIO, JR., NATHANIEL RUBIO, and NOEL 23 RUBIO (“Plaintiffs”), through their counsel of record, submit this Objection to Defendant 24 TRAVELFAST INTERNATIONAL INC.’s (“Defendant”) Reply (the “Reply”) in Support of 25 Motion to Dismiss on the Grounds of Forum Non Conveniens and Evidence Submitted in Support 26 Thereof. 27 /// 28 /// 5000-1223 1 PLAINTIFFS’ OBJECTION TO DEFENDANT’S REPLY IN SUPPORT OF MOTION TO DISMISS ON THE GROUNDS OF FORUM NON CONVENIENS AND EVIDENCE SUBMITTED IN SUPPORT THEREOF 1 I. 2 INTRODUCTION 3 While Defendant apparently filed the Reply on July 6, 2020, it did so without effecting 4 service on Plaintiffs and in conjunction with the introduction/submission of new evidence, 5 supplemental declarations, and affidavits. Defendant is not permitted to introduce new facts or 6 supplement moving papers with additional evidence or exhibits by attachment to the Reply. The 7 additional evidence and “supplementation” Defendant proffered in support of the Reply should 8 therefore be disregarded and stricken by this Court. 9 Moreover, Defendant failed to properly serve Plaintiffs with its Reply. Plaintiffs’ 10 counsel did not receive Defendant’s Reply through mail service, electronic service, personal 11 service, or by any other means consistent with the California Code of Civil Procedure, and 12 instead was left to obtain a copy of the Reply directly from the Court. The Reply should 13 therefore be disregarded and stricken in its entirety for lack of service. 14 II. 15 LEGAL STANDARD 16 Reply papers may only address issues raised in moving papers. It is improper for a party 17 to introduce new facts or different legal arguments in a reply brief. (See Lujan v. National 18 Wildlife Fed’n (1990) 497 U.S. 871, 894–895; United States ex rel. Giles v. Sardie (2000) 191 F. 19 Supp. 2d 1117, 1127.) Generally, a reply brief or memorandum should not contain new issues, 20 evidence, argument, exhibits, or supplementation that the movant could have raised in its moving 21 papers. A court may strike any new material in reply not properly raised in moving papers. (See 22 Provenz v. Miller (1996) 102 F. 3d 1478, 1483.) 23 Additionally, papers must be served by personal delivery, fax, express mail, or some other 24 reasonable means consistent with the California Code of Civil Procedure in order to ensure 25 delivery to all parties no later than the close of business the next day after filing. (See California 26 Code of Civil Procedure §§ 1005(c), 1010, 1011, 1012, 1013.) Service must be effectuated at 27 least five court days before any hearing date. (See California Code of Civil Procedure § 1005(b), 28 California Rule of Court 3.1300(a).) 5000-1223 2 PLAINTIFFS’ OBJECTION TO DEFENDANT’S REPLY IN SUPPORT OF MOTION TO DISMISS ON THE GROUNDS OF FORUM NON CONVENIENS AND EVIDENCE SUBMITTED IN SUPPORT THEREOF 1 III. 2 ARGUMENT 3 A. PLAINTIFFS OBJECT TO DEFENDANT’S INTRODUCTION OF NEW FACTS, EVIDENCE, EXHIBITS, AFFIDAVITS, AND DECLARATIONS IN REPLY 4 5 The Reply attaches a “Supplemental Declaration of Juan Perlas Francisco,” 6 “Supplemental Declaration of Arwin Decastro,” and “Supplemental Declaration of Rodney 7 Gould,” the last of which attaches an exhibit with sub-exhibits of a supplemental affidavit of Roy 8 Kayaban. All supplemental declarations and affidavits offer new purported evidence and facts in 9 support of novel arguments. Juan Perlas Francisco attempts to introduce new facts as to the 10 corporate names, travel arrangements and bookings of Decedents, and new evidence of supposed 11 litigation allegedly currently occurring in the Philippines. Arwin Decastro introduces new facts 12 as to some supposed and speculative vacation home of Plaintiff Tsai, along with additional facts 13 and arguments regarding alleged email exchanges. Although each purported new “fact” is 14 unsupported by any actual or admissible evidence, the mere raising of each in the Reply is 15 improper and must be stricken. Lastly, the Declaration of Rodney Gould attaches an Affidavit of 16 Vincente Roy Kayaban and an attached sub-exhibit titled “Administrative Circular” apparently 17 from the Courts of the Philippines regarding reopening and procedures. The Declaration of 18 Rodney Gould, the attached affidavit, and the new exhibits of evidence are all improperly raised 19 by the Reply and must be stricken. 20 B. PLAINTIFFS WERE NOT SERVED WITH DEFENDANT’S REPLY PAPERS 21 As of the time of the instant filing, Plaintiffs’ counsel has not received the Reply by any 22 means of service. Defendant has not personally, electronically, or mail served the Reply and, 23 instead, Plaintiffs were forced to obtain a copy of the Reply through the Court’s Register of 24 Actions on July 8, 2020. While the Reply’s purported Certificate of Service lists the means of 25 service as being effected through “File & ServeXpress,” Plaintiffs’ counsel received no such 26 /// 27 /// 28 /// 5000-1223 3 PLAINTIFFS’ OBJECTION TO DEFENDANT’S REPLY IN SUPPORT OF MOTION TO DISMISS ON THE GROUNDS OF FORUM NON CONVENIENS AND EVIDENCE SUBMITTED IN SUPPORT THEREOF 1 service, electronic notification, email, or otherwise. The Reply should therefore be stricken in 2 its entirety as a result of fatal procedural deficiencies. 3 PETTIT KOHN INGRASSIA LUTZ & DOLIN PC 4 5 Dated: July 9, 2020 By: ____________________________________ Damian M. Dolin, Esq. 6 Ryan H. Nell, Esq. Julia M. Dalzell, Esq. 7 Attorneys for Plaintiffs ELENITA RUBIO, NUNILO RUBIO, JR., 8 NATHANIEL RUBIO, and NOEL RUBIO 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5000-1223 4 PLAINTIFFS’ OBJECTION TO DEFENDANT’S REPLY IN SUPPORT OF MOTION TO DISMISS ON THE GROUNDS OF FORUM NON CONVENIENS AND EVIDENCE SUBMITTED IN SUPPORT THEREOF 1 PROOF OF SERVICE Elenita Rubio, et al. v. Travelfast International Inc., et al. 2 San Francisco Superior Court Case No.: CGC-20-582278 3 I, the undersigned, declare that: 4 I am and was at the time of service of the papers herein, over the age of eighteen (18) years and am not a party to the action. I am employed in the County of San Diego, California, 5 and my business address is 11622 El Camino Real, Suite 300, San Diego, California 92130. 6 On July 9, 2020, I caused to be served the following documents: 7 • PLAINTIFFS ELENITA RUBIO, NUNILO RUBIO, JR., NATHANIEL RUBIO, AND NOEL RUBIO’S OBJECTION TO DEFENDANT TRAVELFAST 8 INTERNATIONAL, INC.’S REPLY IN SUPPORT OF MOTION TO DISMISS ON THE GROUNDS OF FORUM NON CONVENIENS AND EVIDENCE SUBMITTED 9 IN SUPPORT THEREOF 10 [ ] BY MAIL: By placing a copy thereof for delivery in a separate envelope addressed to each addressee, respectively, as follows: 11 [ ] BY FIRST-CLASS MAIL (Code Civ. Proc. §§ 1013(a)-(b)) 12 [ ] BY OVERNIGHT DELIVERY (Code Civ. Proc. §§ 1013(c)-(d)) [ ] BY CERTIFIED MAIL, RETURN RECEIPT REQUESTED (Code Civ. 13 Proc. §§ 1013(a)-(b)) 14 [ ] BY ELECTRONIC DELIVERY (Code Civ. Proc. § 1010.6 and Cal. Rules of Court, rule 2.251): Based on an agreement between the parties to accept service by e-mail or 15 electronic transmission, I caused such document(s) to be electronically served to those parties listed below from e-mail address dfrandsen@pettitkohn.com. The file 16 transmission was reported as complete and a copy of the Service Receipt will be maintained with the original document(s) in our office. 17 [X] BY ELECTRONIC SERVICE (California Rule of Court 2.251): By submitting an 18 electronic version of the document(s) via file transfer protocol (FTP) to OneLegal Online Court Services through the upload feature at www.onelegal.com. 19 * SEE ATTACHED SERVICE LIST * 20 I am readily familiar with the firm’s practice of collection and processing correspondence 21 for mailing. Under that practice, it would be deposited with the United States Postal Service on that same day with postage thereon fully prepaid at San Diego, California, in the ordinary course 22 of business. I am aware that service is presumed invalid if postal cancellation date or postage meter date is more than one day after the date of deposit for mailing in affidavit. 23 I declare under penalty of perjury under the laws of the State of California that the 24 foregoing is true and correct. 25 Executed on July 9, 2020, at San Diego, California. 26 27 David J. Frandsen 28 5000-1223 5 PLAINTIFFS’ OBJECTION TO DEFENDANT’S REPLY IN SUPPORT OF MOTION TO DISMISS ON THE GROUNDS OF FORUM NON CONVENIENS AND EVIDENCE SUBMITTED IN SUPPORT THEREOF 1 SERVICE LIST Elenita Rubio, et al. v. Travelfast International Inc., et al. 2 San Francisco Superior Court Case No.: CGC-20-582278 3 Mark Punzalan, Esq. Stephanie A. Sheridan, Esq. Nicole Daryanani, Esq. David D. Mesa, Esq. 4 Chan + Punzalan Steptoe & Johnson LLP 2000 Alameda de las Pulgas, Suite 154 One Market Plaza 5 San Mateo, CA 94403 Spear Tower, Suite 3900 Tel: (650) 362-4150 San Francisco, CA 94105 6 Email: mark@chanpunzalan.com Tel: (415) 365-6700 nicole@chanpunzalan.com Fax: (415) 365-6699 7 Attorneys for Defendant Email: ssheridan@steptoe.com TRAVELFAST INTERNATIONAL INC. dmesa@steptoe.com 8 Attorneys for Defendant TRAVELFAST INTERNATIONAL INC. 9 Rodney E. Gould, Esq. 10 Smith Duggan Buell & Rufo LLP 55 Old Bedford Road, Suite 300 11 Lincoln, MA 01773 Tel: (617) 228-4443 12 Email: rgould@smithduggan.com Attorneys for Defendant 13 TRAVELFAST INTERNATIONAL INC. 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5000-1223 6 PLAINTIFFS’ OBJECTION TO DEFENDANT’S REPLY IN SUPPORT OF MOTION TO DISMISS ON THE GROUNDS OF FORUM NON CONVENIENS AND EVIDENCE SUBMITTED IN SUPPORT THEREOF