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1 STEPTOE & JOHNSON LLP
STEPHANIE A. SHERIDAN, State Bar No. 135910
2 ssheridan@steptoe.com
ELECTRONICALLY
DAVID D. MESA, State Bar No. 257488
3 dmesa@steptoe.com F I L E D
1 Market Street Superior Court of California,
County of San Francisco
4 Spear Tower, Suite 3900
San Francisco, CA 94105 07/06/2020
5 Telephone: 415.365.6700 Clerk of the Court
Facsimile: 415.365.6699 BY: RONNIE OTERO
Deputy Clerk
6 CHAN PUNZALAN LLP
MARK L. PUNZALAN, State Bar No. 247599
7 mark@chanpunzalan.com
NICOLE DARVANANI, State Bar No. 328068
8 nicole@chanpunzalan.com
22 Battery Street, Suite 401
9 San Francisco, CA 94111
Telephone: 415.839.0063
10
SMITH DUGGAN BUELL & RUFO LLP
11 RODNEY E. GOULD, State Bar No. 238877
rgould@smithduggan.com
12 55 Old Bedford Road, Suite 300
Lincoln, MA 01773-1125
13 Telephone: 617.228.4443
14 Attorneys for Defendant
TRAVELFAST INTERNATIONAL, INC.
15
16 SUPERIOR COURT OF THE STATE OF CALIFORNIA
17 FOR THE COUNTY OF SAN FRANCISCO
18
19 ELENITA RUBIO, an individual; ) Case No.: CGC-20-582278
NUNILO RUBIO, JR., an individual; )
20 NATHANIEL RUBIO, an individual; and ) SUPPLEMENTAL DECLARATION OF
NOEL RUBIO, an individual, ) JUAN PERLAS FRANCISCO IN
21 ) SUPPORT OF DEFENDANT’S REPLY IN
Plaintiffs, ) SUPPORT OF ITS MOTION TO DISMISS
22 ) ON THE GROUNDS OF FORUM NON
v. ) CONVENIENS
23 )
TRAVELFAST INTERNATIONAL, INC., a )
)
24 California corporation; MANGO TOURS, an )
entity of form unknown; and DOES 1 through )
25 50, inclusive, )
)
26 Defendants. )
)
27
1.
SUPPLEMENTAL DECLARATION OF JUAN PERLAS FRANCISCO IN SUPPORT OF DEFENDANT’S
REPLY IN SUPPORT OF ITS MOTION TO DISMISS ON THE GROUNDS OF FORUM NON CONVENIENS
1 I, JUAN PERLAS FRANCISCO, declare as follows:
2 1. I am a director and owner of the defendant Travelfast International, Inc.
3 (“Travelfast”) and have held those roles since 1978. I am also a director and part owner of the
4 defendant Mango Tours and Travel, Inc. (improperly sued as “Mango Tours”) and have held
5 those roles since 2011. As I stated in my prior Declaration, the two companies are separately
6 run with separate employees. I have personal knowledge of the facts stated in this declaration
7 and am authorized to make this declaration on each entity’s behalf.
8 2. As I stated in my initial Declaration, Mango Tours and Travel, Inc. (hereinafter,
9 “Mango Tours-Philippines”) is a travel agency duly incorporated under the laws of the Republic
10 of the Philippines, with its sole place of business located in Makati City, Philippines. It has
11 operated as a Philippine company under the name “Mango Tours and Travel, Inc.” since
12 January 2011. Before that date, the company operated under the name of Dynatravel, Inc. from
13 October 1993 to January 2011, and before October 1993 the company operated under the name
14 Dynatravel Management and Resources Company. The defendant Travelfast is a corporation
15 duly organized under the laws of California, with its headquarters and principal place of
16 business in San Mateo, California.
17 3. I have reviewed the Declaration of Julia Dalzell in support of the plaintiffs’
18 opposition to Travelfast’s motion to dismiss, including its attached exhibits.
19 4. Regarding Dalzell Declaration Exhibit 6, the Billing Statement from Mango
20 Tours-Philippines, the amounts paid for the Sinulog Package includes roundtrip airfare via
21 Philippine Airlines. This airfare is for internal air transportation in the Philippines, not
22 international air transportation from the United States. All amounts reflected in the Billing
23 Statement were charged by Mango Tours-Philippines in Philippine pesos, and the amount
24 charged for air transportation was approximately $320 US dollars, based upon the exchange
25 rate. Travelfast was not involved in booking Aurora Gagni for any of the items in the Billing
26 Statement, nor was it involved in booking these items for any of the other individuals in the
27 group who were in the van at the time of the accident. No payments for the excursion were
2.
SUPPLEMENTAL DECLARATION OF JUAN PERLAS FRANCISCO IN SUPPORT OF DEFENDANT’S
REPLY IN SUPPORT OF ITS MOTION TO DISMISS ON THE GROUNDS OF FORUM NON CONVENIENS
1 made to Travelfast’s United States offices, nor were any payments for the excursion made to
2 any United States bank account of Travelfast.
3 5. Travelfast had nothing to do with the purchase of international air transportation
4 from the United States to the Philippines for any plaintiff, any plaintiff’s decedent, or for any
5 injured plaintiff.
6 6. Dalzell Declaration Exhibit 7, the General Terms and Conditions, are the terms
7 and conditions of Mango Tours-Philippines, not Travelfast. This document was not provided to
8 customers of Travelfast. The inclusion of a Travelfast United States bank account number was
9 for individuals in the Philippines who wished to pay for their Mango Tours-Philippines trip in
10 United States dollars, which was a rare occurrence. When that does happen, the usual course of
11 business is for Mango Tours-Philippines to notify Travelfast’s accounting department, and the
12 deposited amount is remitted back to the bank account of Mango Tours-Philippines.
13 7. Dalzell Declaration Exhibit 10 has nothing to do with Mango Tours-Philippines.
14 Historically, Travelfast’s primary operation had been as an airline ticket wholesaler. As a
15 wholesaler, Travelfast was prohibited by the airlines from advertising fares to the general
16 public. In 2004, the California entity “Mango Tours, Incorporated” was created to handle the
17 sale of retail air transportation and other transportation services to the public. This entity had no
18 offices or employees in the Philippines. In 2011, “Mango Tours, Incorporated” was dissolved
19 and Travelfast began using the name “Mango Tours” as a doing business as moniker, i.e.,
20 “Travelfast International, Inc. d/b/a Mango Tours.” The entity “Mango Tours, Incorporated”
21 identified in Dalzell Declaration Exhibit 10 had absolutely nothing to do with the organization,
22 advertising or sale of the excursion at issue in this litigation, as it ceased to exist almost seven
23 years before the events at issue. Around the time “Mango Tours, Incorporated” was dissolved
24 in 2011, the Philippine entity Dynatravel, Inc. changed its corporate name to “Mango Tours and
25 Travel, Inc.”
26 8. Dalzell Declaration Exhibit 11 is a list of General Terms and Conditions of
27 “Mango Tours” as found on the website mangotours.com (purportedly downloaded by Ms.
3.
SUPPLEMENTAL DECLARATION OF JUAN PERLAS FRANCISCO IN SUPPORT OF DEFENDANT’S
REPLY IN SUPPORT OF ITS MOTION TO DISMISS ON THE GROUNDS OF FORUM NON CONVENIENS
1 Dalzell in October 2019). These terms and conditions included a forum selection clause for
2 contract and sales disputes to be heard in California and venued in San Francisco. These terms
3 and conditions only related to air transportation bought through the mangotours.com website,
4 meaning air transportation purchased through Travelfast d/b/a Mango Tours. None of the
5 individuals on the excursion at issue booked their excursions through the mangotours.com
6 website or by contacting Travelfast d/b/a Mango Tours.
7 9. There are four litigations arising out of the van accident in the Philippines that
8 took place on January 20, 2018. Upon information and belief, the following represents the
9 residency of both the individuals on the trip and the named plaintiffs suing Travelfast, although
10 plaintiffs have not been forthcoming with confirmation:
11 Individuals on Excursion and in Van Residence (at least part-time)
12 Elenita Rubio (injured) Philippines & Illinois
13 Nunilo Rubio, Sr. (deceased) Philippines & Illinois
14 Bernice Roxas (deceased) New York & possibly Philippines
15 Reynaldo Pascual (deceased) Philippines & New York
16 Diana Pascual (deceased) Philippines & New York
17 Joseph Le Kiong Huang (deceased) Philippines & New York
18 Juvella C. Huang (deceased) Philippines & New York
19 Plaintiffs not on Excursion Residence
20 Nunilo Rubio, Jr. (surviving child) Unidentified by Plaintiffs, not California
21 Nathaniel Rubio (surviving child) Unidentified by Plaintiffs, not California
22 Noel Rubio (surviving child) Unidentified by Plaintiffs, not California
23 Beverly Roxas (surviving child) California
24 Jonathan Roxas (surviving child) Unidentified by Plaintiffs, not California
25 Marisse Abigail Malfant (surviving child) Unidentified by Plaintiffs, not California
26 Marcus Pascual (surviving child) Unidentified by Plaintiffs, not California
27 Jan Leano (surviving child) Unidentified by Plaintiffs, not California
4.
SUPPLEMENTAL DECLARATION OF JUAN PERLAS FRANCISCO IN SUPPORT OF DEFENDANT’S
REPLY IN SUPPORT OF ITS MOTION TO DISMISS ON THE GROUNDS OF FORUM NON CONVENIENS
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1 STEPTOE & JOHNSON LLP STEPHANIE A. SHERIDAN, State Bar No. 135910 2 ssheridan@steptoe.com ELECTRONICALLY DAVID D. MESA, State Bar No. 257488 3 dmesa@steptoe.com F I L E D 1 Market Street Superior Court of California, County of San Francisco 4 Spear Tower, Suite 3900 San Francisco, CA 94105 07/06/2020 5 Telephone: 415.365.6700 Clerk of the Court Facsimile: 415.365.6699 BY: RONNIE OTERO Deputy Clerk 6 CHAN PUNZALAN LLP MARK L. PUNZALAN, State Bar No. 247599 7 mark@chanpunzalan.com NICOLE DARVANANI, State Bar No. 328068 8 nicole@chanpunzalan.com 22 Battery Street, Suite 401 9 San Francisco, CA 94111 Telephone: 415.839.0063 10 SMITH DUGGAN BUELL & RUFO LLP 11 RODNEY E. GOULD, State Bar No. 238877 rgould@smithduggan.com 12 55 Old Bedford Road, Suite 300 Lincoln, MA 01773-1125 13 Telephone: 617.228.4443 14 Attorneys for Defendant TRAVELFAST INTERNATIONAL, INC. 15 16 SUPERIOR COURT OF THE STATE OF CALIFORNIA 17 FOR THE COUNTY OF SAN FRANCISCO 18 19 ELENITA RUBIO, an individual; ) Case No.: CGC-20-582278 NUNILO RUBIO, JR., an individual; ) 20 NATHANIEL RUBIO, an individual; and ) SUPPLEMENTAL DECLARATION OF NOEL RUBIO, an individual, ) JUAN PERLAS FRANCISCO IN 21 ) SUPPORT OF DEFENDANT’S REPLY IN Plaintiffs, ) SUPPORT OF ITS MOTION TO DISMISS 22 ) ON THE GROUNDS OF FORUM NON v. ) CONVENIENS 23 ) TRAVELFAST INTERNATIONAL, INC., a ) ) 24 California corporation; MANGO TOURS, an ) entity of form unknown; and DOES 1 through ) 25 50, inclusive, ) ) 26 Defendants. ) ) 27 1. SUPPLEMENTAL DECLARATION OF JUAN PERLAS FRANCISCO IN SUPPORT OF DEFENDANT’S REPLY IN SUPPORT OF ITS MOTION TO DISMISS ON THE GROUNDS OF FORUM NON CONVENIENS 1 I, JUAN PERLAS FRANCISCO, declare as follows: 2 1. I am a director and owner of the defendant Travelfast International, Inc. 3 (“Travelfast”) and have held those roles since 1978. I am also a director and part owner of the 4 defendant Mango Tours and Travel, Inc. (improperly sued as “Mango Tours”) and have held 5 those roles since 2011. As I stated in my prior Declaration, the two companies are separately 6 run with separate employees. I have personal knowledge of the facts stated in this declaration 7 and am authorized to make this declaration on each entity’s behalf. 8 2. As I stated in my initial Declaration, Mango Tours and Travel, Inc. (hereinafter, 9 “Mango Tours-Philippines”) is a travel agency duly incorporated under the laws of the Republic 10 of the Philippines, with its sole place of business located in Makati City, Philippines. It has 11 operated as a Philippine company under the name “Mango Tours and Travel, Inc.” since 12 January 2011. Before that date, the company operated under the name of Dynatravel, Inc. from 13 October 1993 to January 2011, and before October 1993 the company operated under the name 14 Dynatravel Management and Resources Company. The defendant Travelfast is a corporation 15 duly organized under the laws of California, with its headquarters and principal place of 16 business in San Mateo, California. 17 3. I have reviewed the Declaration of Julia Dalzell in support of the plaintiffs’ 18 opposition to Travelfast’s motion to dismiss, including its attached exhibits. 19 4. Regarding Dalzell Declaration Exhibit 6, the Billing Statement from Mango 20 Tours-Philippines, the amounts paid for the Sinulog Package includes roundtrip airfare via 21 Philippine Airlines. This airfare is for internal air transportation in the Philippines, not 22 international air transportation from the United States. All amounts reflected in the Billing 23 Statement were charged by Mango Tours-Philippines in Philippine pesos, and the amount 24 charged for air transportation was approximately $320 US dollars, based upon the exchange 25 rate. Travelfast was not involved in booking Aurora Gagni for any of the items in the Billing 26 Statement, nor was it involved in booking these items for any of the other individuals in the 27 group who were in the van at the time of the accident. No payments for the excursion were 2. SUPPLEMENTAL DECLARATION OF JUAN PERLAS FRANCISCO IN SUPPORT OF DEFENDANT’S REPLY IN SUPPORT OF ITS MOTION TO DISMISS ON THE GROUNDS OF FORUM NON CONVENIENS 1 made to Travelfast’s United States offices, nor were any payments for the excursion made to 2 any United States bank account of Travelfast. 3 5. Travelfast had nothing to do with the purchase of international air transportation 4 from the United States to the Philippines for any plaintiff, any plaintiff’s decedent, or for any 5 injured plaintiff. 6 6. Dalzell Declaration Exhibit 7, the General Terms and Conditions, are the terms 7 and conditions of Mango Tours-Philippines, not Travelfast. This document was not provided to 8 customers of Travelfast. The inclusion of a Travelfast United States bank account number was 9 for individuals in the Philippines who wished to pay for their Mango Tours-Philippines trip in 10 United States dollars, which was a rare occurrence. When that does happen, the usual course of 11 business is for Mango Tours-Philippines to notify Travelfast’s accounting department, and the 12 deposited amount is remitted back to the bank account of Mango Tours-Philippines. 13 7. Dalzell Declaration Exhibit 10 has nothing to do with Mango Tours-Philippines. 14 Historically, Travelfast’s primary operation had been as an airline ticket wholesaler. As a 15 wholesaler, Travelfast was prohibited by the airlines from advertising fares to the general 16 public. In 2004, the California entity “Mango Tours, Incorporated” was created to handle the 17 sale of retail air transportation and other transportation services to the public. This entity had no 18 offices or employees in the Philippines. In 2011, “Mango Tours, Incorporated” was dissolved 19 and Travelfast began using the name “Mango Tours” as a doing business as moniker, i.e., 20 “Travelfast International, Inc. d/b/a Mango Tours.” The entity “Mango Tours, Incorporated” 21 identified in Dalzell Declaration Exhibit 10 had absolutely nothing to do with the organization, 22 advertising or sale of the excursion at issue in this litigation, as it ceased to exist almost seven 23 years before the events at issue. Around the time “Mango Tours, Incorporated” was dissolved 24 in 2011, the Philippine entity Dynatravel, Inc. changed its corporate name to “Mango Tours and 25 Travel, Inc.” 26 8. Dalzell Declaration Exhibit 11 is a list of General Terms and Conditions of 27 “Mango Tours” as found on the website mangotours.com (purportedly downloaded by Ms. 3. SUPPLEMENTAL DECLARATION OF JUAN PERLAS FRANCISCO IN SUPPORT OF DEFENDANT’S REPLY IN SUPPORT OF ITS MOTION TO DISMISS ON THE GROUNDS OF FORUM NON CONVENIENS 1 Dalzell in October 2019). These terms and conditions included a forum selection clause for 2 contract and sales disputes to be heard in California and venued in San Francisco. These terms 3 and conditions only related to air transportation bought through the mangotours.com website, 4 meaning air transportation purchased through Travelfast d/b/a Mango Tours. None of the 5 individuals on the excursion at issue booked their excursions through the mangotours.com 6 website or by contacting Travelfast d/b/a Mango Tours. 7 9. There are four litigations arising out of the van accident in the Philippines that 8 took place on January 20, 2018. Upon information and belief, the following represents the 9 residency of both the individuals on the trip and the named plaintiffs suing Travelfast, although 10 plaintiffs have not been forthcoming with confirmation: 11 Individuals on Excursion and in Van Residence (at least part-time) 12 Elenita Rubio (injured) Philippines & Illinois 13 Nunilo Rubio, Sr. (deceased) Philippines & Illinois 14 Bernice Roxas (deceased) New York & possibly Philippines 15 Reynaldo Pascual (deceased) Philippines & New York 16 Diana Pascual (deceased) Philippines & New York 17 Joseph Le Kiong Huang (deceased) Philippines & New York 18 Juvella C. Huang (deceased) Philippines & New York 19 Plaintiffs not on Excursion Residence 20 Nunilo Rubio, Jr. (surviving child) Unidentified by Plaintiffs, not California 21 Nathaniel Rubio (surviving child) Unidentified by Plaintiffs, not California 22 Noel Rubio (surviving child) Unidentified by Plaintiffs, not California 23 Beverly Roxas (surviving child) California 24 Jonathan Roxas (surviving child) Unidentified by Plaintiffs, not California 25 Marisse Abigail Malfant (surviving child) Unidentified by Plaintiffs, not California 26 Marcus Pascual (surviving child) Unidentified by Plaintiffs, not California 27 Jan Leano (surviving child) Unidentified by Plaintiffs, not California 4. SUPPLEMENTAL DECLARATION OF JUAN PERLAS FRANCISCO IN SUPPORT OF DEFENDANT’S REPLY IN SUPPORT OF ITS MOTION TO DISMISS ON THE GROUNDS OF FORUM NON CONVENIENS