Motion-Secondary: NATHAN MARSHALL et al VS. DESOTO CAB COMPANY, INC. et al

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MILES B. COOPER, SBN209085
EMISON HULLVERSON LLP
1005 Sansome Street, Suite 330
San Francisco, California 94111
Telephone: 415-434-2111
Facsimile: 415-434-2112
miles@emisonhullverson.com

ATTORNEYS FOR PLAINTIFFS
NATHAN MARSHALL and
ALEX MARSHALL

ELECTRONICALLY
FILED

Superior Court of California,
County of San Francisco

JUL 29 2014

Clerk of the Court
BY: ROMY RISK
Deputy Clerk

SUPERIOR COURT OF THE STATE OF CALIFORNIA

IN AND FOR THE COUNTY OF SAN FRANCISCO

NATHAN MARSHALL and ALEX
MARSHALL, individually and as successors in.
interest to decedents DENNIS T. MARSHALL
and KAREN MARSHALL,

Plaintiffs,
v.
DESOTO CAB COMPANY, INC., FAEGH
BEHBAHANIL, SELBY AND HUDSON
CORPORATION, and DOES 1-20, inclusive,

Defendants.

CASE NO, CGC-12-521356

PLAINTIFFS THE MARSHALLS’
POINTS AND AUTHORITIES IN
OPPOSITION TO DEFENDANT SELBY
AND HUDSON CORPORATION’S
MOTION FOR SUMMARY JUDGMENT

Date: August 12, 2014

Time: 9:30 am.

Judge: Hon. Ernest H. Goldsmith
Case Filed: June 5, 2012

Trial Date: October 6, 2014

PLAINTIFFS THE MARSHALLS’ POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT SELBY
AND HUDSON CORPORATION'S MOTION FOR SUMMARY JUDGMENT26

Table of Contents

I. Introduction ..

TT, Statement Of facts oo... eseeestesessessneseesessesseenessessssesvestssisseenescssssneeseeesnssessmsenenaeieeeenenesses 3

A. From 2000-2008, DeSoto was sued 94 times in San Francisco Superior Court ..

B. Hansu Kim, DeSoto’s Person Most Knowledgeable, t talks about DeSoto’s Problematic
history... cevsucaneuseeseancansusseevaneanseceeecsevacaeeneacseessnecnsecseeasasensesseensnecnsesicensvaavansucenavsevacsucenevsevarsnesd

1. Both Old DeSoto and New DeSoto were Poorly ru run, n corrupt, 2 and had a 2 dispatch system
that encouraged racing and caused collisions... 3

2. Prior to Kim’s purchase of New DeSoto, both Old DeSoto and New DeSoto’s accident
histories were embarrassing. D DeSoto only had $1 million in insurance and was not going to
be able to renew its policy. .. deeeeeeeeeseeeeeeeeeeetee cen

C. DeSoto was in poor financial condition from 2005-2010, resulting in DeSoto mechanics
scavenging parts from cabs to keep the fleet rolling. 00.0.0... ceeeceee eee eseeeeesee ners ee eeeseeneeeeeneeeeneee! 4

D. In 2008, seeing the handwriting on the wall, DeSoto leadership moves the real property
asset into Selby and Hudson, a shell corporation set up to own the property.

1. Selby and New DeSoto leadership transferred the company’s liabilities ~ including
$1,361,000 in debt — to New DeSoto. .o..ececcceecccececcscsesceeseseseseseeesescacseseseaeseseseseseneasessesseneeeees 4

2. Selby retained ownership of the entirety of 555 Selby Street, except for the fuel tank
and its associated liability. It transferred this liability to New DeSoto. Selby then had New
DeSoto indemnify Selby from any damages, penalties, or remediation costs associated with
the hazardous Substances. .....cccscccsesseesseessessesseecsecsscnseesseseenecsnessesseessesneessessecsanecssceeeneeeneeseD

3. Selby transferred all the liabilities, insurance premium costs, maintenance, and ‘Property
taxes for 555 Selby Street to New DeSoto. . doetsesnessessessesearsesseseessensessessessansersersenserseree

4, Though Selby transferred all the cost and obligation to to New DeSoto, °, Selby retained the
right to the tax benefits afforded by depreciation... sesseseenennsees ve soeseeteeeseeneeed

5. The lease was executed by Jane Bolig, as President for Selby and President for New
DeSoto and Robert Oppenheimer as Secretary for Selby and Secretary for New DeSoto ......6

6. The Selby board and New DeSoto board who voted and approved this transaction and
the lease were the same people... ccecessesseseeeesrserscseeesssesseseesesssesersensnssesserserseesesserserseesesesO

7. The boards, as part of the agreement, agreed to keep the transaction quiet.

E. On February 20, 2009, 15 months before the Marshall’s double-fatality crash, New
DeSoto mechanics roll the cab’s odometer back... ccc cece es cereensaneerssreseennssresneneaneanees 6

F. On June 10, 2010, DeSoto cab 2111 was over the 350,000-mile safe and legal San
Francisco Metropolitan Transportation Administration limit. it was operating illegally. ........7

G. On April 14, 2009, after the odometer rollback and eight months after the split, Selby
added six non-officer directors, all of whom are New DeSoto shareholders.

“i

PLAINTIFFS THE MARSHALLS’ POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT SELBY
AND HUDSON CORPORATION'S MOTION FOR SUMMARY JUDGMENT26

1. Selby and New DeSoto’s five officer directors, remained the same. Selby and New

DeSoto’s officers ~ those in the leadership roles — were the same people... eee 7
2. Selby and New DeSoto’s board members are all shareholders in both companies. ........8
3. The majority of Selby’s and New DeSoto’s shareholders, 57%, are the same and thus
are the equitable owners of both companies... sssesesneaeercusaraneacercessereesenesasseteeaseesassersensetessseS
H. Selby owns 555 Selby, collects rent from New DeSoto, and protects the DeSoto
shareholders’ inheritance. Selby has no other apparent business function. 8
i. New DeSoto and Selby maintained the same business address... cesses esneereeeeenes 8
J. The June 14, 2010 double-fatality crash. 2... eseeseseesescsesseseeeeacsesneseeeeacnesnssceeeacntensnenseres 8
1. Karen and Dennis Marshall, Alex and Nathan’s parents, visit San Francisco. ....0.0....8
2.0 A Fiery ATIVE Lo ss reeesenessnsseseenecsntsesuesesseeniesessessesnsnesnssneseseeseeseeseeseesssees oD
BL TIMP eee cece cecescseeeevecscassescersescasseseenscseasseseenseseassesnecseseassesessueseseateaseasieseaseaseaeacies 9
K. After the incident, DeSoto General Manager Cindy | Ward writes a memo about the
incident on DeSoto Cab > Coop stationary. She notes the “assets of Selby and Hudson will be
protected.” deeereeneee . ce
L. On July 14, 2014, over a year after DeSoto produced the DeSoto document and waived
any right to any potentially applicable attorney-client confidentiality, Selby’s counsel writes
The Marshalls’ counsel and DeSoto’s counsel. Selby’s counsel claims the DeSoto document is
Protected by attorney-¢ client nt privilege and the DeSote document should be returned to Selby’s
M. Hansu Kim bought the failing New DeSoto after the double-fatality crash. Ld
TIT, Legal analysis oe. eccessesesesssssessseseeresssnescsesrssssnsseneercaseesueaneceusnesueansceuseeseeesseersernseereerserseaeerees EL
A. Summary judgment is a drastic remed yo... eeseesesnesneneensesennenesenestenneneveaesceneeneneeets 1}
B. The single-enterprise doctrine oo... cecscssessessessseeesteseesecsecsessesaecusseesessesseseeseesvesassnesueseenes® 12
1. The first element: the trier of fact’s analysis of unity of interests... eee 12
a. Appellate courts have upheld verdicts under the Single-Enterprise Doctrine under
similar circumstances seeeteeeeneeee ww lS
C. The second element: injustice 00... cc ceseenessesseeseeeeseenerseeseneenecseanensansesieateneanecserneenenne LD
TV, COnCHOSION ces isieceieerennmeeeisesiesssisesescsscsrsnssisnseseaseseesssensiesseseeamuees 17

-ii-

PLAINTIFFS THE MARSHALLS’ POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT SELBY
AND HUDSON CORPORATION'S MOTION FOR SUMMARY JUDGMENT26

Table of Authorities

Cases
Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843 oo eeecesscseeeesseseeeeereeeerenteeee il
Arauz v. Gerhardt (1977) 68 Cal. App.3d 937, 940... csesesessereseseseersrserssereersereaeaeersees LI

Associated Vendors, Inc. v. Oakland Meat Co. (1962) 210 Cal.App.2d 825......... 2, 12, 15, 17

Automotriz del Golfo de Calif. S.A. de CV. v. Resnick (1957) 47 Cal.2d 792, 797 16

Cascade Energy & Metals Corp. v. Banks (10th Cir. 1990) 896 F.2d 1557, 1577. 7
Gigax y. Ralston Purina Co, (1982) 136 Cal. App.3d 591, 596 ooo cceceeeseeneneeeteneerenseeee il
Gordon v. Aztec Brewing Co., (1949) 33 Cal.2d 514, $22-523 oe cecseeeeeeseeeeerenenteneeeee 16
Las Palmas Associates v. Las Palmas Center Associates (1991) 235 Cal.App.3d 1220, 1249-

12500). eeeeeecescesseesescescesseesesceseesteseescescesssnseneessassaesnnsacsassussuceassessusuesseeseeesnesneeneees 12, 15, 17
Maxwell v. Colburn (1980) 105 CaLApp.3d 180, 185 out rnasencee LL
Molko v. Holy Spirit Assn. (1988) 46 Cal.3d V107 cscs csesneneensesnesnenssseestennenensnennene il

Pan Pacific Sash & Door Co. v. Greendale Park, Inc. (1958) 166 Cal App.2d 652,

658-659 ccc sceneries eens ieenensneaieeseenssnaesensscsrsesensssernitactseresimeamacsecesenssenieee 15

Romano vy, Rockwell, Inc. (1996) 14 Cal Ath 479, 486 oc ecseeeseseeseseecsrsssenessesscaeerenseesnenee il

Tran v. Farmers Group, Inc. (2002) 104 Cal. App.4th 1202, 1219 .eececcccsccesceeeeeeee 12,17

Trop v. Sony Pictures Entertainment, Ine. (2005) 129 Cal.App.4th 1133, 1143-44.0000000001

Statutes

Code of Civil Procedure (“CCP”) § 43 70(C) eesssessserensssserserenrsssenessscneasconsesestenrseneseeneereereare ll
~iti-

PLAINTIFFS THE MARSHALLS’ POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT SELBY

AND HUDSON CORPORATION'S MOTION FOR SUMMARY JUDGMENT26

I. Introduction

In the mid 2000s, DeSoto Cab Cooperative was in trouble — a cooperative with
management problems and increasing liabilities. Corrupt practices resulted in an embarrassingly
high accident rate. Drivers raced each other to get to customers, crashing into each other.
Dispatchers fed choice calls to friends. DeSoto retained problem drivers, despite their accidents,
because of favoritism. As a result, the company faced 94 lawsuits from 2000-2008 in San
Francisco ~ and this did not include pre-filing settlements and crashes in surrounding counties.
DeSoto carried only a $1 million insurance policy. And the policy’s renewal was in question.

During the good years, DeSoto managed to secure one major asset, a large property in
San Francisco’s Bayview district at the intersection of Selby and Hudson streets, where DeSoto
operated. Leadership saw the handwriting on the wall. Their asset, their nest egg, was subject to
the liabilities and the lawsuits of a reckless and failing company.

DeSoto’s leadership did something about it. In 2008, they created a shell company, Selby
and Hudson. Its sole purpose — own the property, protect the DeSoto shareholders’ inheritance,
and collect rent from the cab business. The shell company, Selby, retained the valuables. The
liabilities were transferred to a new company, New DeSoto. New DeSoto handled the risky
business — running the cabs, The companies’ leadership ran both companies for another two
years.

Not surprisingly, the economic problems continued, wreaking havoc on New DeSoto.
Leadership constantly told the Fleet Manager and his mechanics there was no money — for
repairs, overtime, or taises. At the same time, the mechanics were directed to keep every cab on
the road to make money and squeeze every last mile out of the rolling stock. They scavenged
parts from old cabs and wrecked cabs. This included swapping out odometer-control computers
from lower-mileage wrecked cabs and replacing the odometer-control computers on higher
mileage, still operating, cabs. The result — odometer rollbacks that squeezed additional — and
illegal — mileage from cabs before the swapped odometers hit the SFMTA 350,000-mile limit at
which a cab could no longer legally operate.

In February 2009, DeSoto performed this illegal rollback procedure on DeSoto cab 2111,
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PLAINTIFFS THE MARSHALLS’ POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT SELBY
AND HUDSON CORPORATION'S MOTION FOR SUMMARY JUDGMENT1 || subtracting nearly 50,000 miles from the cab’s odometer.

2 Then, on June 14, 2010, a DeSoto driver, navigating a burning and illegally operating

3 | DeSoto cab 2111, crashed. The crash killed Karen and Dennis Marshall, parents to Nathan and

4 || Alex Marshall. Leadership, who were the same people, was concerned about the crash. But not in

5 |] the way one would expect. Not about the Marshalls’ deaths — as to that, DeSoto’s General

6 || Manager Cindy Ward wrote, “‘Business as usual.” What does it make a difference.”

7 Leadership’s concern was the asset, the property. But they felt they were safe. Cindy

8 || Ward wrote, “Assets of Selby & Hudson will be protected.”

9 Leadership then found an idealistic taxi consultant, Hansu Kim, and sold him New
10 || DeSoto, with all its liabilities. They kept the Selby assets for themselves. The leadership then
11 || retreated into their shell, denying any involvement in creating the circumstances that led to Karen
12 | and Dennis Marshall’s death.
13 There’s a legal concept that addresses this situation — the single-enterprise doctrine. A
14 || variant of the alter ego doctrine, it says that if a business that splits itself in two but is in essence
15 || the same business, maintains the same address, maintains the same leadership, and
16 |) undercapitalizes the company that engages in the riskier behavior, the shell company is equally
17 |] liable, This prevents unfair results to those adversely affected by the business’s actions. People
18 |) like the Marshall family.
19 As part of this analysis, the law lists 20 alter ego factors for a trier of fact to evaluate.
20 | Associated Vendors, Inc. v. Oakland Meat Co. (1962) 210 Cal.App.2d 825, When a question of
21 || fact exists as to these factors, the alter ego question is the trier of fact’s domain and not subject to
22 | summary judgment.
23 The question presented to this court: when there are triable issues of material fact for
24 || 14 out of 20 of the Associated Vendors factors that make this a factual issue for the trier of fact,
25 |) should defendant Selby be entitled to summary judgment? The answer is no. Defendant Selby’s

26 || motion should be denied. This matter should proceed to trial.

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PLAINTIFFS THE MARSHALLS’ POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT SELBY
AND HUDSON CORPORATION'S MOTION FOR SUMMARY JUDGMENT26

I. Statement of facts
A. From 2000-2008, DeSoto was sued 94 times in San Francisco Superior Court
From 2000-2008, DeSoto was sued 94 times in San Francisco Superior Court. The number does

not include pre-litigation settlements or lawsuits filed in surrounding counties. MDF 30.

B. Hansu Kim, DeSoto’s Person Most Knowledgeable, talks about DeSoto’s
problematic history.

Hansu Kim was a cab industry consultant. MDF 31. The major cab companies in San
Francisco are Yellow Cab, Luxor, and DeSoto. MDF 32. DeSoto Cab was one of Kim’s clients.
MDF 33. Kim was also deposed as DeSoto’s Person Most Knowledgeable regarding DeSoto’s

corporate and business structure, general business history, and day-to-day operations. MDF 34,

1. Both Old DeSoto and New DeSoto were poorly run, corrupt, and had a dispatch
system that encouraged racing and caused collisions.

Kim, as DeSoto’s Person Most Knowledgeable, believed DeSoto Cab could not have been
tun in a worse way. MDF 35. DeSoto’s board tried to make all the decisions despite having a
General Manager, Cindy Ward. MDF 36. According to Kim, DeSoto was a corrupt company in
many ways. MDF 37. The shareholders set DeSoto up in a way to benefit themselves. MDF 38.
The corruption included allowing bad cab drivers to continue to operate DeSoto cabs, MDF 39.
The bad drivers were friends with the DeSote medallion holders/shareholders. As a result, rather
than cancel their leases, DeSoto allowed the bad drivers to continue to operate DeSoto cabs.
MDF 40,

DeSoto used a voice dispatch system. MDF 41. DeSoto’s voice dispatch system
encouraged drivers to race to pick up fares. MDF 42. DeSoto cabs collided with each other racing

to pick up fares, MDF 43.

2. Prior to Kim’s purchase of New DeSoto, both Old DeSoto and New DeSoto’s
accident histories were embarrassing. DeSoto only had $1 million in insurance
and was not going to be able to renew its policy.

DeSoto had $1 million in insurance coverage with no excess or umbrella policy. MDF 44.
According to Kim, DeSoto’s accident frequency was embarrassing. MDF 45. DeSoto was not
going to be able to get a new insurance policy. MDF 46.

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PLAINTIFFS THE MARSHALLS’ POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT SELBY
AND HUDSON CORPORATION'S MOTION FOR SUMMARY JUDGMENT26

C. DeSoto was in poor financial condition from 2005-2010, resulting in DeSoto
mechanics scavenging parts from cabs to keep the fleet rolling,

Rafael Garcia has been a DeSoto mechanic since 1999. MDF 47. It was Rafael Garcia’s
understanding that from 2005-2010 the company was basically going down the drain and that
they did not have money for buying cars or parts. MDF 48. This was a constant issue from 2005-
2010. There was not a period where it was a greater or lesser issue. MDF 49. The financial issues
were brought to Rafael Garcia’s attention by Cindy Ward, DeSoto’s General Manager. MDF 50.
Rafael Garcia was told by his General Manager, Cindy Ward, to do whatever he could to keep
the cabs running. MDF 51. DeSoto’s garage was piled with rubble and scavenged parts. MDF 52.

The Fleet Manager, Byron Molina, was continuously told, “we got no money,” and “no
money, no raises, no retirement,” and “no raises, no overtime.” MDF 53. The Fleet Manager was
under pressure to keep costs down and to use parts from other vehicles. This was told to him by
his manager, Cindy Ward. MDF 54. It was normal procedure to scavenge parts from retired or

wrecked cabs to put the cabs on the road as fast as they could. MDF 55.

D. In 2008, seeing the handwriting on the wall, DeSoto leadership moves the real
property asset into Selby and Hudson, a shell corporation set up to own the
property.

DeSoto decided to move the real property, 555 Selby Street, San Francisco, into a shell
corporation, DeSoto 1. MDF 59. DeSoto 1 then changed its name to Selby and Hudson
Corporation (Selby). MDF 60. Selby formed a wholly owned subsidiary, New DeSoto Cab
Cooperative Company, Inc. (New DeSoto), MDF 61. Selby transferred the cab operations to New

DeSoto. MDF 62.

1. Selby and New DeSoto leadership transferred the company’s liabilities —
including $1,361,000 in debt — to New DeSoto.

Leadership for Selby and New DeSoto (“Leadership”) were the same people, in the same
official roles for both companies. MDF 83-85, Leadership transferred $1.11 million of Selby debt
to New DeSoto, including a Bank of the West credit line and California Economic Development
Lending Initiative loan. MDF 63. Leadership had New DeSoto give a promissory note to Selby

for an additional $251,000. MDF 64. Leadership had New DeSoto indemnify Selby against any
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PLAINTIFFS THE MARSHALLS’ POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT SELBY
AND HUDSON CORPORATION'S MOTION FOR SUMMARY JUDGMENT26

unknown liabilities arising out of the operation of the taxicab business. MDF 65. Selby’s board
members acted as New DeSoto’s board members during this transaction. MDF 66.
2. Selby retained ownership of the entirety of 555 Selby Street, except for the fuel
tank and its associated liability. It transferred this liability to New DeSoto. Selby

then had New DeSoto indemnify Selby from any damages, penalties, or
remediation costs associated with the hazardous substances.

Selby kept 555 Selby Street’s land, building, and improvements, except for a fuel tank. MDF
67. Selby transferred the fuel tank, with its associated environmental liability, to New DeSoto.
MDF 68. Selby had New DeSoto agree to indemnify and defend Selby from any liability —
including damages, penalties, attorneys’ fees, and remediation costs — for the use of Hazardous
Substances on the premises. MDF 69. Hazardous Substances were defined to include petroleum

or refined petroleum products, like what was in the fuel tank on the premises. MDF 70.

3. Selby transferred all the liabilities, insurance premium costs, maintenance, and
property taxes for 555 Selby Street to New DeSote.

Leadership had New DeSoto take on the bulk of Selby’s property obligations. This
included: (1) insurance premiums for Selby’s casualty and liability insurance covering the
property; (2) insurance deductibles formerly paid by Selby; (3) uninsured losses resulting from
damage to the property; (4) Selby’s property taxes; (5) building security; (6) maintenance, repair,
cleaning, resurfacing, and painting of the building’s roof, walls, heating, ventilation, and air
conditioning system; (7) the operation, maintenance, repair, cleaning, painting, and resurfacing of
all the property’s parking lots; (8) maintaining all parking areas, roadways, sidewalks,
walkways, driveways, striping, fences, and gates on the property; (9) installation, repair, and
maintenance of all light fixtures and signs; and (10) utilities, cluding gas, electricity, garbage,

and trash removal. MDF 71-81.

4, Though Selby transferred all the cost and obligation to New DeSoto, Selby
retained the right to the tax benefits afforded by depreciation.

Selby specifically excluded New DeSoto from taking advantage of depreciation. Thus

only Selby could take advantage of any depreciation tax benefits. MDF 82.

5.

PLAINTIFFS THE MARSHALLS’ POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT SELBY
AND HUDSON CORPORATION'S MOTION FOR SUMMARY JUDGMENT26

5. The lease was executed by Jane Bolig, as President for Selby and President for
New DeSoto and Robert Oppenheimer as Secretary for Selby and Secretary for
New DeSoto

Jane Bolig, signed the lease twice, first as President for Selby and then as President for
New DeSoto, MDF 83. Robert Oppenheimer signed the lease twice, first as Secretary for Selby

and then as Secretary for New DeSoto. MDF 84.

6. The Selby board and New DeSoto board who voted and approved this
transaction and the lease were the same people.

The transaction was concluded on July 31, 2008. MDF 85. The board members for both
Selby and New DeSoto were President Jane Bolig, Chief Financial Officer Michael Lorenzen,
Executive Vice President Pat La Rocca, Secretary Robert Oppenheimer, Vice President Michael
Williams. Timothy J. Watson, their lawyer, was the incorporator. MDF 66 and MDF 86.

7. The boards, as part of the agreement, agreed to Keep the transaction quiet.

The Selby and New DeSoto boards, as part of their agreement, determined that “No
announcement of the Plan or of the purposes of this agreement, either to customers, for trade
journals, or otherwise, shall be made without the prior written approval of the text thereof by both
the President and the General Manager of Parent. MDF 87. As a result, not even New DeSoto’s
longtime employees like its Fleet Manager and career mechanic knew of the transaction. MDF

88.

E. On February 20, 2009, 15 months before the Marshall’s double-fatality crash, New
DeSoto mechanics roll the cab’s odometer back.

On February 20, 2009, the cab, DeSoto no. 2111, went in for service. It had 263,990 miles
on the odometer. MDF 89. The mechanics replaced the computer, which controls the cab’s
odometer. MDF 90, At the cab’s next service on March 4, 2009, the cab’s odometer showed
215,170 miles. The DeSoto mechanics’ actions subtracted 48,820 miles from the cab. MDF 91.
Byron Molina has been DeSoto’s Fleet Manager since 2000. MDF 92.

Installing lower mileage computers in older cabs was something DeSoto’s Fleet Manager
knew occurred. MDF 93. The odometer rollback came as part of DeSoto leadership’s pressure to

keep cabs rolling and costs down because DeSoto had no money. MDF 94,

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PLAINTIFFS THE MARSHALLS’ POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT SELBY
AND HUDSON CORPORATION'S MOTION FOR SUMMARY JUDGMENT1 There was no procedure at DeSoto to report the mileage difference when a computer

2 || control module with lower mileage was put into an older cab. MDF 96. DeSoto did not have an

3 || odometer correction form. MDF 97. There was no form that DeSoto would fill out to give to the
4 || ground control taxi inspectors (the San Francisco Metropolitan Transportation Administration) to
5 |) alert them the mileage had been modified. MDF 98. DeSoto did not have a procedure for

6 || recording the decreased mileage or reporting it to the SFMTA. MDF 99. The SFMTA does not

7 || receive DeSoto’s Driver Inspection Reports, which shows a cab’s mileage. MDF 100.

8 At the time the mechanics rolled the odometer back, New DeSoto and Selby Leadership

9 | was the same, with identical boards. MDF 95.

10 F. On June 10, 2010, DeSote cab 2111 was over the 350,000-mile safe and legal San
Francisco Metropolitan Transportation Administration limit. It was operating

1 illegally.

12 The San Francisco Metropolitan Transit Agency, which governs San Francisco taxi

13 || operations, mandates that a cab can no longer operate once the cab reaches 350,000 miles. MDF

14 | 101. On June 3, 2010, seven days before the incident, DeSoto cab 2111 showed 305,393 miles on

15 |] the odometer. MDF 102. DeSoto cab 2111 had actually run at least 354,213 miles. MDF 103.

16 G. On April 14, 2009, after the odometer rollback and eight months after the split,
" Selby added six non-officer directors, all of whom are New DeSoto shareholders.
18 On April 19, 2009, Selby conducted a vote to add additional directors. MDF 104. They

19 | added James Gallagher, Neil Samuel Gralnick, Tara Housman, James Nakamura, Edward J.

20 || Scoble, Chuck Sollars, MDF 105, All of them are New DeSoto shareholders, MDF 106.

21 1. Selby and New DeSoto’s five officer directors, remained the same. Selby and New
2 DeSoto’s officers — those in the leadership roles — were the same people.
23 No vote was taken to change Selby’s and New DeSoto’s existing directors. These

24 | directors held the officer positions for both New DeSoto and Selby. MDF 107. The officer

25 |) directors continued to be:

26 Selby New DeSoto

27 || President: Jane Bolig President: Jane Bolig

28 | Chief Financial Officer: Michael Lorenzen Chief Financial Officer: Michael Lorenzen
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PLAINTIFFS THE MARSHALLS’ POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT SELBY
AND HUDSON CORPORATION'S MOTION FOR SUMMARY JUDGMENT26

Executive Vice President: Pat La Rocca Executive Vice President: Pat La Rocca

Secretary: Robert Oppenheimer Secretary: Robert Oppenheimer

Vice President: Michael Williams Vice President: Michael Williams

2. Selby and New DeSoto’s board members are all shareholders in both companies.

The board members for both boards are all shareholders in both Selby and New DeSoto.

MDF 108-109.

3. The majority of Selby’s and New DeSoto’s shareholders, 57%, are the same and
thus are the equitable owners of both companies.

The majority of Selby’s and New DeSoto’s shareholders, 57% of them, are the same. MDF

160. The equitable ownership of both companies is therefore the same.

H. Selby owns 555 Selby, collects rent from New DeSoto, and protects the DeSoto
shareholders’ inheritance. Selby has no other apparent business function.

New DeSoto paid $20,000 a month to Selby to use 555 Selby Street. MDF 110. Selby was
created to make sure there was something of value for DeSoto shareholders to leave to their

descendants. MDF 111.

I. New DeSoto and Selby maintained the same business address.

New DeSoto’s address was 555 Selby Street, San Francisco, CA 94124. MDF 112.
Selby’s address was 555 Selby Street, San Francisco, CA 94124. MDF 113.
J. The June 14, 2010 double-fatality crash.

1. Karen and Dennis Marshall, Alex and Nathan’s parents, visit San Francisco.

On June 14, 2010, Dennis and Karen Marshall arrived at San Francisco International
airport. They lived in Cincinnati, Ohio. MDF 114, Dennis was 61 years old. His wife, Karen, was
59 years old. MDF 115. Dennis worked for Gap, Inc. His work required occasional trips to Gap’s
headquarters in San Francisco. Karen and Dennis’s destination that day was San Francisco’s
Mark Hopkins Hotel. MDF 116.

They had two sons, Nathan and Alex. Nathan was a 25-year-old graduate student in

geology at the time of the incident. He had just started a program in the Netherlands. Alex was 20

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PLAINTIFFS THE MARSHALLS’ POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT SELBY
AND HUDSON CORPORATION'S MOTION FOR SUMMARY JUDGMENT26

years old. He lived at his parents’ home, had just been diagnosed with schizophrenia, and was
reliant on his parents for their support.

2. A fiery drive

Dennis and Karen Marshall got into a DeSoto cab at the airport. MDF 117. Dennis and
Karen Marshall both wore their seat belts in the cab. MDF 118. The DeSoto cab driver left SFO
and went north on U.S. 101. MDF 119. The DeSoto driver first started noticing smoke near
Candlestick Park. MDF 120. A DeSoto dispatcher, alerted by another DeSoto cab driver, also
notified the DeSoto driver that his cab was smoking, about the same time the DeSoto driver
noticed the issue. MDF 121. This was four miles before the impact point at the foot of the
Mariposa Street off-ramp in San Francisco’s Potrero Hill district. MDF 122. From the time the
driver first noticed the smoke, there were several locations available for the driver to exit, pull
onto the shoulder, or pull to the center divider MDF 123. One witness driving near the DeSoto
cab put the DeSoto cab driver’s speed at 70 miles per hour. MDF 124.

While the vehicle was smoking, another witness, Gisela Lopez, observed the driver
making numerous lane changes. This included using the slow lane to pass vehicles. MDF 125.
Gisela Lopez saw a female passenger in the back of the cab. The female passenger appeared to
have a terrified look on her face. MDF 126, The DeSoto driver continued north on U.S, 101 and
transferred to northbound U.S. 280. MDF 127. Ms. Lopez lost sight of the DeSoto cab as the cab
took U.S. 280 and Ms. Lopez and her husband stayed on U.S. 101. MDF 128. Another witness,
Scott Williams, took a photograph of the DeSoto cab near Cesar Chavez Street. Flames were
shooting from underneath the cab. MDF 129.

3. Impact

A San Francisco County Sheriff's transport van was also travelling northbound on U.S.
280. MDF 130. The deputy sheriffs followed the cab as it took the Mariposa Street exit. MDF
131. They saw the cab crash into a concrete freeway support pillar, MDF 132. The taxi was on
fire and the flames increased as the Sheriffs’ van approached. MDF 133. Deputy Ralleta got out
of the Sheriffs’ van, learned from the DeSoto cab driver that the cab had passengers, and went to

the cab’s left rear passenger door to attempt to open it. MDF 134.
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PLAINTIFFS THE MARSHALLS’ POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT SELBY
AND HUDSON CORPORATION'S MOTION FOR SUMMARY JUDGMENT26

It took four or five attempts to open the door. MDF 135. Deputy Ralleta was immediately
overcome with thick dark smoke, flames, and heat. MDF 136. Deputy Ralleta attempted to free
Karen Marshall, whose clothes were on fire. MDF 137. During this time, Karen kept saying
softly, “Please help me, please help me.” MDF 138, The flames increased and the smoke and heat
became more intense. MDF 139. Deputy Ralleta kept struggling because he could not see the
latch. MDF 140. Deputy Ralleta felt he was going to pass out because he had been holding his
breath for so long. He leaned out to get air. MDF 141. After a few tries, he was able to release the
latch. MDF 142.

Karen. was unable to move her legs so Deputy Ralleta pulled her out of the cab. MDF 143.
He immediately laid Karen on the ground to put out her flaming clothing. MDF 144. During this
time, Deputy Ralleta knew she was conscious because she kept saying, “Please help me.” MDF
145.

Karen and Dennis Marshall both died from their injuries. MDF 146.

Kk. After the incident, DeSoto General Manager Cindy Ward writes a memo about the
incident on DeSoto Cab Coop stationary. She notes the “assets of Selby and Hudson
will be protected.”

Byron Molina, DeSoto’s Fleet Manager, reported to Cindy Ward. He is able to recognize
her handwriting, MDF 147, Exhibit 18 to the Marshalls’ separately bound evidence is a memo
written by Cindy Ward. MDF 148. Exhibit 18 is Bates-stamped 566 and part of 838 pages of
documents produced by DeSoto in response to a request for production made by The Marshalls.
MDF 149, The document was produced in discovery over a year ago. MDF 150. New DeSoto
General Manager Cindy Ward wrote the memo on DeSoto Cab Coop stationary after the incident.

She noted the “assets of Selby and Hudson will be protected.” MDF 151. She also wrote,

“*Business as usual,” What does it make a difference.” MDF 152,

L. On July 14, 2014, over a year after DeSoto produced the DeSoto document and
waived any purported right to any potentially applicable attorney-client
confidentiality, Selby’s counsel writes The Marshalls’ counsel and DeSoto’s counsel.
Selby’s counsel claims the DeSoto document is protected by attorney-client privilege
and the DeSoto document should be returned to Selby’s counsel.

On July 14, 2014, Selby’s counsel wrote a letter to the Marshalls’ counsel and DeSoto’s
counsel. MDF 153. In the letter, Selby’s counsel stated that the DeSoto document, produced by
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PLAINTIFFS THE MARSHALLS’ POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT SELBY
AND HUDSON CORPORATION'S MOTION FOR SUMMARY JUDGMENT1 || DeSoto, is subject to attorney-client confidentiality. MDF 154. Selby’s counsel demanded that

2 |! the original DeSoto document be given to Selby’s counsel and all copies of the document be

3 || destroyed. MDF 155.

4 M. Hansu Kim bought the failing New DeSoto after the double-fatality crash.

5 Hansu Kim purchased New DeSoto after the Marshalls were killed. MDF 156. When Kim
6 |] bought New DeSoto in 2010, the company could not buy any more cars and could not get a new
7 || insurance policy. MDF 157. New DeSoto was $2 million in debt when Kim bought it. MDF 158.

8 | New DeSoto owed money to Selby and Hudson Corporation. MDF 159.

9 WW. Legal analysis
10 A. Summary judgment is a drastic remedy
li Summary judgment is a drastic remedy that deprives the losing party of a trial on the

12 1) merits. It should be granted with extreme caution so that it does not become a substitute for open
13 | trial. Gigax v. Ralston Purina Co, (1982) 136 Cal.App.3d 591, 596; Arauz v. Gerhardt (1977) 68
14 || Cal_App.3d 937, 940. Consequently, any doubts regarding the motion should be resolved in favor
15 || of the party opposing the motion. Molko v. Holy Spirit Assn. (1988) 46 Cal.3d 1107.

16 Summary judgment shall be granted only if “there is no issue of triable fact as to any

17 || material fact and the moving party is entitled to a judgment as a matter of law,” Code of Civil

18 || Procedure (“CCP”) § 437¢(c); see Romano v. Rockwell, Inc. (1996) 14 Cal.4th 479, 486. The

19 | “court focuses on finding issues of fact; it does not resolve them. The court seeks to find

20 || contradictions in the evidence or inferences reasonably deducible from the evidence that raise a
21 || triable issue of material fact.” Trop v. Sony Pictures Entertainment, Inc. (2005) 129 Cal.App.4th
22 |) 1133, 1143-44.

23 Circumstantial evidence and reasonable inferences may create a triable issue of material
24 || fact. See CCP § 437c(c). In fact, reasonable inferences creating a triable issue of fact may be

25 || disclosed in the moving party’s own evidence. See Maxwell v. Colburn (1980) 105 Cal. App.3d
26 |] 180, 185. The court views the evidence and inferences “in the light most favorable to the

27 || opposing party.” Aguilar v. Ailantic Richfield Co. (2001) 25 Cal 4th 826, 843.

28 Further, “from commencement to conclusion, the party moving for summary judgment

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PLAINTIFFS THE MARSHALLS’ POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT SELBY
AND HUDSON CORPORATION'S MOTION FOR SUMMARY JUDGMENT26

bears the burden of persuasion that there is no triable issue of material fact and that it is entitled
to judgment as a matter of law.” /d. at 850. In addition, the moving party bears the initial burden
of production to present evidence that makes a prima facie showing that there are no triable
issues of material fact. Id.

B. The single-enterprise doctrine

Selby is liable for this incident under the single-enterprise doctrine. A variant of alter ego,
single-enterprise liability requires two elements: (1) A unity of interests and ownership such that
one corporation is a mere adjunct of another or the two companies form a single enterprise; and
(2) an inequitable result if the acts in question are treated as those of one corporation alone. Tran
v. Farmers Group, Inc. (2002) 104 Cal.App.4th 1202, 1219, citing Las Palmas Associates v. Las
Palmas Center Associates (1991) 235 Cal.App.3d 1220, 1249-1250.

1. The first element: the trier of fact’s analysis of unity of interests

As an alter ego variant, one looks to the factors identified by the courts that demonstrate
the unity of interest necessary to pierce the corporate veil. Associated Vendors, Inc. v. Oakland
Meat Co. (1962) 210 Cal.App.2d 825 is the seminal case on these factors. The Associated
Vendors court determined that the unity of interests question is fact-intensive. As a result, only
general guidance could be provided.

More importantly, Associated Vendors held that the determination is a fact issue, not a
question of law. Jd. at p. 837. Associated Vendors lists 20 factors for the trier of fact’s
consideration when determining two entities’ unity of interests. /d. at p. 838. Associated Vendors
further stated that several, but certainly not all, factors are needed for a fact-finder to determine
the entities had unified interests. Jd. At p. 840.

The following are the Associated Vendors factors where triable issues of material fact

exist in this case:

Associated Vendors Factor Facts supporting factor

(1) The formation and use of a corporation to Selby created New DeSoto and transferred

transfer to it the existing liability of another Selby’s liabilities to New DeSoto. MDF 59-82.

person or entity,

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PLAINTIFFS THE MARSHALLS’ POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT SELBY
AND HUDSON CORPORATION'S MOTION FOR SUMMARY JUDGMENT26

(2) The manipulation of assets and liabilities
between entities so as to concentrate the assets

in one and the liabilities in another.

Selby created New DeSoto, kept the bulk of the
value in Selby, and transferred Selby’s

liabilities to New DeSoto. MDF 59-82.

(3) The failure to adequately capitalize a

corporation.

Selby created New DeSoto and transferred

Selby’s liabilities to New DeSoto. MDF 59-82.

(4) Undercapitalization and the absence of

corporate assets.

Selby created New DeSoto and transferred
Selby’s liabilities to New DeSoto. MDF 59-82.
This included moving $1.36 million in debt
into New DeSoto. New DeSoto was so
economically strapped from the action that it
had to cannibalize cabs and roll back
odometers in order to keep the cabs rolling.

MDF 89-100.

(5) The use of a corporation as a mere shell,
instrumentality or conduit for a single venture
or the business of an individual or another

corporation.

Selby was created to make sure there was
something of value for DeSoto shareholders to
leave to their descendants. It serves no business
purpose aside from this and collecting rent.

MDF 110-111.

(6) The concealment and misrepresentation of
the identity of the responsible ownership,
management and financial interest, or

concealment of personal business activities.

The leadership of Selby and New DeSoto
agreed to keep the transaction quiet. DeSoto’s
own long-term employees were unaware of the

transaction, MDF 87-88.

(7) The use of the same office or business

location.

Both entities operate out of 555 Selby Street,

San Francisco. MDF 112-113.

(8) The employment of the same employees

and/or attorney.

Both entities used the same counsel to
incorporate. Cindy Ward’s post-incident New

DeSoto memo, where she notes, “Assets of

Selby and Hudson will be protected,” raises a

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PLAINTIFFS THE MARSHALLS’ POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT SELBY
AND HUDSON CORPORATION'S MOTION FOR SUMMARY JUDGMENT26

triable issue of material fact about Cindy
Ward’s role as a dual employee. MDF 86,
MDF 147-155.

(9) The disregard of legal formalities and the
failure to maintain arm’s length relationships

among related entities.

Both entities used the same counsel to
incorporate. Cindy Ward’s post-incident New
DeSoto memo, where she notes, “Assets of
Selby and Hudson will be protected,” raises a
triable issue of material fact about Cindy
Ward’s role as a dual employee. MDF 86,
MDF 147-155.

(10) The failure to maintain minutes or
adequate corporate records, and the confusion

of the records of the separate entities.

The Cindy Ward memo displays the confusion
regarding the corporate records of the two

separate entities. MDF 86, MDF 147-155.

(11) The use of a corporation as a subterfuge of

illegal transactions.

DeSoto’s transfer, and resulting
undercapitalization, caused illegal odometer

rollbacks to keep cabs rolling. MDF 89-100.

(12) Identification of the directors and officers
of the two entities in the responsible

supervision and management.

The directors/officers were the same
individuals for both companies. MDF 82-86,
104-107.

(13) The identification of the equitable owners
thereof with the domination and control of the

two entities.

The directors/officers were the same
individuals for both companies, MDF 82-86,
104-107. All of the directors were shareholders
in both companies. MDF 108-111.

(14) The identical equitable ownership in the

two entities.

The directors/officers were the same
individuals for both companies. MDF 82-86,
104-107. All of the directors were shareholders

in both companies. MDF 108-111. Fifty-seven

percent of the ownership, i.e. the equitable

“14.

PLAINTIFFS THE MARSHALLS’ POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT SELBY
AND HUDSON CORPORATION'S MOTION FOR SUMMARY JUDGMENT26

ownership, was the same between both

companies. MDF 160.

Triable issues of material fact exist on fourteen out of twenty of the Associated Vendor

factors. As a result, summary judgment must be denied. The decision is the trier of fact’s domain.

a. Appellate courts have upheld verdicts under the Single-Enterprise Doctrine
under similar circumstances

In Pan Pacific Sash & Door Co. v. Greendale Park, Inc. (1958) 166 Cal App.2d 652,
defendants formed Greendale Park, Inc., and the Ralmor Corporation to build homes on
undeveloped lots. Defendants transferred the real property to Greendale Park and later had that
corporation contract with Ralmor for the construction. Plaintiff sold sash doors, frames, and
jambs to Ralmor. When Ralmor did not pay for the goods, plaintiff sued each corporation
asserting they were both one and the same. The trial court entered judgment against both
corporations under an alter-ego theory.

The Court of Appeal in Pan Pacific affirmed the judgment, stating: “Upon the basis of
the... evidence the trial court was warranted in concluding, as it did, that each corporation was
but an instrumentality or conduit of the other in the prosecution of a single venture namely, the
construction and sale of houses upon the tract in question. ... There was such unity of interest and
ownership that the separateness of the two corporations had in effect ceased and an adherence to
the fiction of a separate existence of the two corporations would, under the circumstances here
present, promote injustice and make it inequitable for Greendale to escape liability for an
obligation incurred as much for its benefit as for Ralmor.” (166 Cal. App.2d at pp. 658-659.)

Relying on the reasoning of Pan Pacific, the court in Las Palmas Associates, supra, also
found a real estate developer, this time a shopping center, liable under a single-enterprise theory.
Buyers claimed they were defrauded when the sellers — an interlocking group of three
corporations — refused to honor rent guarantees that buyers had relied on in making the purchase.
After the sale, the guarantor corporation transferred the obligations to its sister corporation, who

in turn disavowed them.

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PLAINTIFFS THE MARSHALLS’ POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT SELBY
AND HUDSON CORPORATION'S MOTION FOR SUMMARY JUDGMENT26

The court explained the underlying legal theory:

In effect what happens is that the court, for sufficient reason, has determined that

though there are two or more personalities, there is but one enterprise; and that

this enterprise has been so handled that it should respond, as a whole, for the

debts of certain component elements of it. The court thus has constructed for

purposes of imposing liability an entity unknown to any secretary of state

comprising assets and liabilities of two or more legal personalities; endowed that

entity with the assets of both, and charged it with the liabilities of one or both.
(235 Cal. App.3d at pp. 1249-50, citations omitted.)

Accordingly, the court upheld a jury verdict finding all three seller corporations joint and
severally liable.

C The second element: injustice

[Where the recognition of the fiction of separate corporate existence would foster

an injustice or further a fraud the courts will refuse to recognize it. It is not

necessary that the plaintiff prove actual fraud. It is enough if the recognition of

the two entities as separate would result in an injustice.
(Gordon v. Aztec Brewing Co., (1949) 33 Cal.2d 514, 522-523 (internal citations omitted)).

Inadequate capitalization is sufficient to satisfy the inequity requirement if the sister
corporations are considered a unitary enterprise. As the California Supreme Court has held, “If
the capital is illusory or trifling compared with the business to be done and the risks of loss, this
is a ground for denying the separate-entity privilege.” (Automotriz del Golfo de Calif. S.A. de
CV. v. Resnick (1957) 47 Cal.2d 792, 797.)

Because society recognizes the benefits of allowing persons and organizations to

limit their business risks ... sound public policy dictates that imposition of [single-

enterprise] liability be approached with caution. [Citation.] Nevertheless, it would

be unjust to permit those who control companies to treat them as a single or a

unitary enterprise and then assert their ... separateness in order to commit frauds

and other misdeeds with impunity.

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PLAINTIFFS THE MARSHALLS’ POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT SELBY
AND HUDSON CORPORATION'S MOTION FOR SUMMARY JUDGMENT26

(Las Palmas Associates, supra, 235 Cal.App.3d at p. 1249, quoted with approval in Tran, supra,
104 Cal.App.4th at p. 1219.)

An inequity or injustice is more likely to be found in tort cases. Unlike contractual
creditors, who voluntarily choose to deal with corporations and can protect themselves through
the negotiation process, tort victims do not volunteer to enter into the tortfeasor-victim
relationship:

The obvious difference between consensual and nonconsensual transactions is

that the claimants in consensual transactions generally have chosen the parties

with whom they have dealt and have some ability, through personal guarantees,

security agreements, or similar mechanisms, to protect themselves from loss. For

example, the fact that a company is undercapitalized can be overcome in many

contractual settings, because the parties can allocate the risk of financial failure as

they see fit. But in nonconsensual cases, there is “no element of voluntary dealing,

and the question is whether it is reasonable for businessmen to transfer a risk of

loss or injury to members of the general public through the device of conducting

business in the name of a corporation that may be marginally financed.

(Cascade Energy & Metals Corp. v. Banks (10th Cir, 1990) 896 F.2d 1557, 1577, citation
omitted.)

In this case, Selby retained the bulk of the corporate assets and moved the bulk of the
corporate Habilities, including the riskier business of cab operations, to New DeSoto. MDF 67-
82. All the while, DeSoto, one of the three largest cab fleets in San Francisco, operating a corrupt
and accident-prone company facing a multitude of lawsuits, had only a $1 million insurance
policy, and its renewal remained in question. MDF 30, 31-46.

TV. Conclusion

The Associated Vendors court held that alter ego is a fact-intensive analysis, the trier of
fact’s domain, Triable issues of material fact exist for 14 out of 20 of the Associated Vendors
factors. A further requirement is to look at the injustice presented by the undercapitalization after
the spin-off. Here, the undercapitalization was so severe that employees took to cannibalizing cab

-17-

PLAINTIFFS THE MARSHALLS’ POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANT SELBY
AND HUDSON CORPORATION'S MOTION FOR SUMMARY JUDGMENTparts to keep the fleet running, ultimately resulting in an illegally operating, burning cab that
crashed and killed Karen and Dennis Marshalls.
Summary judgment is net appropriate in this situation. Defendant Selby’s motion should

be denied. The case should go to a jury for its factual determination.

Respectfully submitted,
DATED: July 28, 2014 EMISON HULLVERSON LLP

Miles B. Cooper
Attorneys for Plaintiffs

“18.

PLAINTIFFS THE MARSHALLS POINTS AND AUTHORITIES IN OPPOSITION TO.DEFENDANT SELBY
AND HUDSON CORPORATION’S MOTION FOR SUMMARY JUDGMENTi

PROOF OF SERVICE

Lam employed in. the City and County of San Francisco, State of California. 1 am over 18 years of age.and
not a party to this action. My business address is Emison Hullverson LLP, 1005 Sansome Street, Suite 330,
San Francisco, CA 94111.

On the date-below I served a true copy of the following document(s):

PLAINTIFFS THE MARSHALLS’ POINTS AND AUTHORITIES IN OPPOSITION TO
DEFENDANT SELBY AND HUDSON CORPORATION’S MOTION FOR SUMMARY
JUDGMENT

on the interested parties to said action by the following means:
tT) (BY MAIL) By placing a true copy of the above, enclosed in a sealed envelope with appropriate
~ postage, for collection and mailing following our ordinary business practices. 1am readily familiar
with this business’s practice for collecting and processing c