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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
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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
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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.
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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
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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
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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
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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
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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:
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[ ] 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.
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[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.
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* SEE ATTACHED SERVICE LIST *
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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.
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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.
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27 David J. Frandsen
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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.
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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.
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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