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JAMES ATTRIDGE [SBN NO. 124003]
LAW OFFICES OF JAMES ATTRIDGE
270 Divisadero Street, #3
San Francisco, CA 94117
Telephone: (415) 552-3088
Email: jattridge@attridgelaw.com
Attorney for Defendant BJ Interstate
Auto Transporters, Inc.
SUPERIOR COURT OF CALIFORNIA
COUNTY OF SAN MATEO
10 ANDY SABERI, an individual, Case No: CIV-53 6294
11 Plaintiff, MEMORANDUM OF POINTS AND
AUTHORITIES IN SUPPORT OF MOTION
12 LES STANFORD CHEVROLET FOR JUDGEMENT ON THE PLEADINGS
CADILLAC, INC. a Michigan corporation,
13 BJ INTERSTATE AUTO TRANSPORTERS, DATE: OCTOBER 20, 2017
INC. a Nevada corporation, BOGDAN
14 DEDYK, doing business as SAFE AUTO TIME: 9AM
TRANSPORT, an individual, and DOES 1
15 through 25, inclusive, DEPARTMENT 16-COURTROOM 7
16 HONORABLE RICHARD H. DU BOIS
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17 .’ CIV536294
| MPA
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Memorandum of Points & Authorities
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INTRODUCTION L i1111111111111“
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There is only one Cause of action (the fourth) directed at the moving party, BJ Interstate Auto
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Transporters and it hangs on this allegation in paragraph 31: “Saberi is informed and believes that
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Safe Auto Transport was uninsured for the damages alleged herein.” Judicially noticeable material,
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including a declaration by plaintiff Saberi’s own counsel, disproves this allegation. Belief can be a
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matter of faith, or of imagining, but information is not. All the information addressing this point in
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the court’s file points in the opposite direction: that on the date co—defendant Bogdan Dedyk, dba
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Safe Auto Transport, caused damage to the plaintiffs sportscar, defendant Dedyk was, in fact,
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insured. Case closed.
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TRIAL BRIEF
FACTS
Plaintiff bought a corvette from co-defendant Les Stanford Chevrolet for $128, 391.91. (First
Amended Complaint, (F AC) Exhibit A) Stanford, located in Dearborn, Michigan contacted moving
UI
party BJ Interstate Auto Transporters, Inc., a licensed transportation broker, to arrange for
transportation of the corvette to San Francisco. In turn BJ Interstate contacted co—defendant Dedyk,
dba Safe Auto Transport, to transport the corvette via car-catcher from Dearborn to California. (F AC
\OOO\]O\
para 11, 12) Some damage was done to the vehicle in transit, and Dedyk has admitted fault.
Apparently, rather than admit this initially, Dedyk attempted repair before delivery and those repairs
were cosmetically flawed, making the damage easily discemable. Mr. Saberi has sued Les Stanford
contending the car is a lemon, sued Dedyk for causing damage in transit, and initially sued BJ
Interstate for that same reason.
Knowing Dedyk was insured, BJ Interstate mistakenly assumed that Dedyk would submit a
claim to its insurer, but apparently due to bizarre legal advice, he did not. Plaintiff Saberi took the
defaults of Dedyk and BJ Interstate before ever serving Les Stanford. On the date the undersigned
was retained, February 18, 2016 plaintiff Saberi’s counsel received an e—mail advising him that BJ
Interstate was a broker and could only be sued for negligent entrustment. That e—Inail contained two
case citations to support the point and referred plaintiff’s counsel to the Federal Motor Carrier Safety
Administration (FMCSA) website for verification. (Exhibit 1) On February 29, 2016 and March 23,
2016 plaintiff Saberi’s counsel received e-mails from Dedyk’s coverage counsel advising him that
Dedyk was being uncooperative. (Exhibit 2, Declaration of James Dombroski) Plaintiff Saberi
refused to set aside the defaults and forced defendants Dedyk and BJ Interstate to have them set
aside by noticed motion, which plaintiff Saberi vigorously opposed. At the hearing on that motion
Saberi’s counsel threw his client under the bus, explaining plaintively that he opposed those motions
only because he was following orders.
On October 10, 2016 defendant Dedyk’s counsel filed the first of three Case Management
Conference Statements advising the Court Dedyk was in fact insured. A reservation of rights that
was initially asserted due to Dedyk’s mysterious non—cooperation was dropped. (Exhibit 3)
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TRIAL BRIEF
Nonetheless, on October 18, 2016 the First Amended Complaint was filed contending that BJ
Interstate owed a duty to plaintiff Saberi “that Safe Auto Transport was properly insured” and
“Saberi is informed and believe (sic) that Safe Auto Transport was uninsured for the damages
alleged herein.” (FAC para 31) The First Amended Complaint references a Case Management
Statement filed by Dedyk on July 27, 2016 as the sole source for its contention Dedyk was
uninsured. (FAC para 12, 13) It either ignores or fails to heed that the October 10, 2016 CMC filed
by Dedyk a week earlier said something completely different. And plaintiff persists in pursuing this
\OOO\10\
case despite the representations made in the CMC Statements filed by Dedyk on November 22, 2016
and January 24, 2017 that he is covered. (Exhibit 3)
This allegation that Dedyk was “uninsured” was not only made with no palpable support, but
in complete indifference to the facts made plain in Exhibits 1, 2, and 3 and easily discernable by few
clicks of the mouse that would lead plaintiff to Exhibits 4, 5, and 6, as suggested in Exhibit 1 eight
months earlier. (Should plaintiff file an Opposition disputing the fact of Dedyk’s insurance, BJ
Interstate intends to supplement its Reply with plaintiff Saberi’s Mediation Statement as
impeachment.)
ARGUMENT
1. A Motion for Judgement 0n the Pleadings Can Properly Be Decided Based Upon Facts
Judicially Noticed
Like a demurrer, a Motion for Judgment on the Pleadings (CCP 43 8), tests the sufficiency of
a plaintiff s complaint. However, courts have held that a demurrer or Motion for Judgment on the
Pleadings may be predicated on extrinsic evidence, including judicially noticed matter in the court’s
own file. The rule against extrinsic evidence “has been relaxed in order to allow the court to take
judicial notice of evidentiary matters in its own records, including. . .declarations. . .which are
inconsistent with the allegations in the complaint...” Although generally a “. . .demurrer may not be
based on declarations, some cases have allowed consideration of statements made by the party who
drafted the challenged pleading.” Able v. Van Der Zee 256 Cal. App. 2d. 728, 734 (1967). Here,
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TRIAL BRIEF
plaintiffs own counsel generated Exhibit 2, indicating that eight months before the First Amended
Complaint was filed, plaintiff knew Dedyk was insured. “In the instant case, the plaintiffs
admission. . .renders the complaint patently less than truthful.” Nulaia’ Farmers Assn. v. LaTorre
252Cal. App. 2d 788, 791 (1967).
Courts may also consider matter pursuant to judicial notice not in its file. Salterellz' &
Stepanovich v. Douglas 40 Cal. App. 4“ 1, 5 (1995, Barker v. Hull 19] Cal. App. 2d. 221, 224
\]O\
(1987)). Here, exhibits 4, 5 and 6 demonstrate that a trucker like Dedyk is subject to strict regulation
and is not permitted to operate when not insured. An insurer is under an obligation to inform the
FMCSA when a trucker’s coverage lapses or is cancelled. Without insurance, a trucker cannot
10 operate. Trucks are subject to safety-related inspections constantly, as well as proof of compliance
ll with regulations governing the time spent behind the wheel. Exhibits 5 and 6 demonstrate that
12 Dedyk is no exception. They also show that despite other venial sins, he was never cited for failure
13 to produce proof of insurance.
14 A coverage dispute isn’t proof a trucker is “uninsured.” Quite the opposite. The only party
15 on planet earth that can deny coverage or defend pursuant to a reservation of rights is an insurer.
16 Here it is unknown why Dedyk’s insurance company initially balked when Dedyk made his belated
17 claim. Maybe he lied on his application. Maybe he forgot to amend his schedule of vehicles when he
18 bought a new truck. Maybe he had an unqualified driver. Most likely his intentional act of “covering
19 up” the damage with a slipshod repair triggered a coverage issue. But that doesn’t mean he was
20 uninsured. It means he was thought to be afoul of the terms of the policy. And we now know for a
21 fact that pursuant to investigation his insurer has abandoned any thought of taking that position. As
22 far as the Federal Motor Carrier Safety Administration is concerned, he had the requisite insurance
23 on file. And that is all a transportation broker like BJ Interstate need vet. All the broker must verify
24 is that the trucker has insurance, not that he has insurance adequate to cover every eventuality,
25 including his own unforeseeable misconduct. Chubb Group ofInsurance Companies v.HA.
26 Transportation 243 F. Supp. 1064, 1072 (2002).
28 CONCLUSION
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TRIAL BRIEF
The exhibits appended to the Attridge Declaration make it plain that on the day the First
Amended Complaint was filed, plaintiff had every reason to know that BJ Interstate had fulfilled its
b.)
obligation to confirm that Dedyk was insured. That is why he and Safe Auto Transport are being
4';
defended pursuant to a policy of insurance as we speak. And no piece of judicially noticed evidence
is more damning than plaintiff s counsel’s own declaration confirming that Dedyk had insurance in
\IQM
place on the date of loss. (Exhibit 2)
“Out of thine own mouth I will judge thee.” Luke, 19:22
September 14, 2017 Respectful s bmitted,
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James Attridge
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TRIAL BRIEF
PROOF OF SERVICE
I declare that I am over the age of eighteen (18) and not a party to this action. My business
address is 270 Divisadero Street, #3, San Francisco, CA 94117.
On September , 20117 I served the following document: Memorandum of Points and
Authorities in Support Motion for Judgement on the Pleadings, on the interested parties in this action
by placing a true and correct copy of such document, enclosed in a sealed envelope, addressed as
follows:
I
Tom Crowell Michael Levangie
\OOOQQUI-b
Toschi, Sidran, Collins & Doyle Levangie Law Group
5145 Johnson Drive 2021 N Street
Pleasanton, CA 94588 Sacramento, CA 94841
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11 James Dombroski
12 PO. Box 751027
13 Petaluma, CA 94975 —1027
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El 1 am readily familiar with the business” practice for collection and processing of
19 correspondence for mailing with the United States Postal Service. I know that the correspondence
was deposited with the United States Postal Service on the same day this, declaration was executed in
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the ordinary course of business. I know that the envelope was sealed and, with postage thereon fully
prepaid, placed for collection and mailing on this date in the United States mail at, San Francisco,
21 California.
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23 Executed: September H ,2017
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\J J arhes Attridge
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JOINT CASE MANAGEMENT CONFERENCE STATEMENT
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JAMES ATTRIDGE [SBN NO. 124003] LAW OFFICES OF JAMES ATTRIDGE 270 Divisadero Street, #3 San Francisco, CA 94117 Telephone: (415) 552-3088 Email: jattridge@attridgelaw.com Attorney for Defendant BJ Interstate Auto Transporters, Inc. SUPERIOR COURT OF CALIFORNIA COUNTY OF SAN MATEO 10 ANDY SABERI, an individual, Case No: CIV-53 6294 11 Plaintiff, MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION 12 LES STANFORD CHEVROLET FOR JUDGEMENT ON THE PLEADINGS CADILLAC, INC. a Michigan corporation, 13 BJ INTERSTATE AUTO TRANSPORTERS, DATE: OCTOBER 20, 2017 INC. a Nevada corporation, BOGDAN 14 DEDYK, doing business as SAFE AUTO TIME: 9AM TRANSPORT, an individual, and DOES 1 15 through 25, inclusive, DEPARTMENT 16-COURTROOM 7 16 HONORABLE RICHARD H. DU BOIS /_ _ 17 .’ CIV536294 | MPA i Memorandum of Points & Authorities 18 19 INTRODUCTION L i1111111111111“ 20 There is only one Cause of action (the fourth) directed at the moving party, BJ Interstate Auto 21 Transporters and it hangs on this allegation in paragraph 31: “Saberi is informed and believes that 22 Safe Auto Transport was uninsured for the damages alleged herein.” Judicially noticeable material, 23 including a declaration by plaintiff Saberi’s own counsel, disproves this allegation. Belief can be a 24 matter of faith, or of imagining, but information is not. All the information addressing this point in 25 the court’s file points in the opposite direction: that on the date co—defendant Bogdan Dedyk, dba 26 Safe Auto Transport, caused damage to the plaintiffs sportscar, defendant Dedyk was, in fact, 27 insured. Case closed. 28 1 TRIAL BRIEF FACTS Plaintiff bought a corvette from co-defendant Les Stanford Chevrolet for $128, 391.91. (First Amended Complaint, (F AC) Exhibit A) Stanford, located in Dearborn, Michigan contacted moving UI party BJ Interstate Auto Transporters, Inc., a licensed transportation broker, to arrange for transportation of the corvette to San Francisco. In turn BJ Interstate contacted co—defendant Dedyk, dba Safe Auto Transport, to transport the corvette via car-catcher from Dearborn to California. (F AC \OOO\]O\ para 11, 12) Some damage was done to the vehicle in transit, and Dedyk has admitted fault. Apparently, rather than admit this initially, Dedyk attempted repair before delivery and those repairs were cosmetically flawed, making the damage easily discemable. Mr. Saberi has sued Les Stanford contending the car is a lemon, sued Dedyk for causing damage in transit, and initially sued BJ Interstate for that same reason. Knowing Dedyk was insured, BJ Interstate mistakenly assumed that Dedyk would submit a claim to its insurer, but apparently due to bizarre legal advice, he did not. Plaintiff Saberi took the defaults of Dedyk and BJ Interstate before ever serving Les Stanford. On the date the undersigned was retained, February 18, 2016 plaintiff Saberi’s counsel received an e—mail advising him that BJ Interstate was a broker and could only be sued for negligent entrustment. That e—Inail contained two case citations to support the point and referred plaintiff’s counsel to the Federal Motor Carrier Safety Administration (FMCSA) website for verification. (Exhibit 1) On February 29, 2016 and March 23, 2016 plaintiff Saberi’s counsel received e-mails from Dedyk’s coverage counsel advising him that Dedyk was being uncooperative. (Exhibit 2, Declaration of James Dombroski) Plaintiff Saberi refused to set aside the defaults and forced defendants Dedyk and BJ Interstate to have them set aside by noticed motion, which plaintiff Saberi vigorously opposed. At the hearing on that motion Saberi’s counsel threw his client under the bus, explaining plaintively that he opposed those motions only because he was following orders. On October 10, 2016 defendant Dedyk’s counsel filed the first of three Case Management Conference Statements advising the Court Dedyk was in fact insured. A reservation of rights that was initially asserted due to Dedyk’s mysterious non—cooperation was dropped. (Exhibit 3) 2 TRIAL BRIEF Nonetheless, on October 18, 2016 the First Amended Complaint was filed contending that BJ Interstate owed a duty to plaintiff Saberi “that Safe Auto Transport was properly insured” and “Saberi is informed and believe (sic) that Safe Auto Transport was uninsured for the damages alleged herein.” (FAC para 31) The First Amended Complaint references a Case Management Statement filed by Dedyk on July 27, 2016 as the sole source for its contention Dedyk was uninsured. (FAC para 12, 13) It either ignores or fails to heed that the October 10, 2016 CMC filed by Dedyk a week earlier said something completely different. And plaintiff persists in pursuing this \OOO\10\ case despite the representations made in the CMC Statements filed by Dedyk on November 22, 2016 and January 24, 2017 that he is covered. (Exhibit 3) This allegation that Dedyk was “uninsured” was not only made with no palpable support, but in complete indifference to the facts made plain in Exhibits 1, 2, and 3 and easily discernable by few clicks of the mouse that would lead plaintiff to Exhibits 4, 5, and 6, as suggested in Exhibit 1 eight months earlier. (Should plaintiff file an Opposition disputing the fact of Dedyk’s insurance, BJ Interstate intends to supplement its Reply with plaintiff Saberi’s Mediation Statement as impeachment.) ARGUMENT 1. A Motion for Judgement 0n the Pleadings Can Properly Be Decided Based Upon Facts Judicially Noticed Like a demurrer, a Motion for Judgment on the Pleadings (CCP 43 8), tests the sufficiency of a plaintiff s complaint. However, courts have held that a demurrer or Motion for Judgment on the Pleadings may be predicated on extrinsic evidence, including judicially noticed matter in the court’s own file. The rule against extrinsic evidence “has been relaxed in order to allow the court to take judicial notice of evidentiary matters in its own records, including. . .declarations. . .which are inconsistent with the allegations in the complaint...” Although generally a “. . .demurrer may not be based on declarations, some cases have allowed consideration of statements made by the party who drafted the challenged pleading.” Able v. Van Der Zee 256 Cal. App. 2d. 728, 734 (1967). Here, 3 TRIAL BRIEF plaintiffs own counsel generated Exhibit 2, indicating that eight months before the First Amended Complaint was filed, plaintiff knew Dedyk was insured. “In the instant case, the plaintiffs admission. . .renders the complaint patently less than truthful.” Nulaia’ Farmers Assn. v. LaTorre 252Cal. App. 2d 788, 791 (1967). Courts may also consider matter pursuant to judicial notice not in its file. Salterellz' & Stepanovich v. Douglas 40 Cal. App. 4“ 1, 5 (1995, Barker v. Hull 19] Cal. App. 2d. 221, 224 \]O\ (1987)). Here, exhibits 4, 5 and 6 demonstrate that a trucker like Dedyk is subject to strict regulation and is not permitted to operate when not insured. An insurer is under an obligation to inform the FMCSA when a trucker’s coverage lapses or is cancelled. Without insurance, a trucker cannot 10 operate. Trucks are subject to safety-related inspections constantly, as well as proof of compliance ll with regulations governing the time spent behind the wheel. Exhibits 5 and 6 demonstrate that 12 Dedyk is no exception. They also show that despite other venial sins, he was never cited for failure 13 to produce proof of insurance. 14 A coverage dispute isn’t proof a trucker is “uninsured.” Quite the opposite. The only party 15 on planet earth that can deny coverage or defend pursuant to a reservation of rights is an insurer. 16 Here it is unknown why Dedyk’s insurance company initially balked when Dedyk made his belated 17 claim. Maybe he lied on his application. Maybe he forgot to amend his schedule of vehicles when he 18 bought a new truck. Maybe he had an unqualified driver. Most likely his intentional act of “covering 19 up” the damage with a slipshod repair triggered a coverage issue. But that doesn’t mean he was 20 uninsured. It means he was thought to be afoul of the terms of the policy. And we now know for a 21 fact that pursuant to investigation his insurer has abandoned any thought of taking that position. As 22 far as the Federal Motor Carrier Safety Administration is concerned, he had the requisite insurance 23 on file. And that is all a transportation broker like BJ Interstate need vet. All the broker must verify 24 is that the trucker has insurance, not that he has insurance adequate to cover every eventuality, 25 including his own unforeseeable misconduct. Chubb Group ofInsurance Companies v.HA. 26 Transportation 243 F. Supp. 1064, 1072 (2002). 28 CONCLUSION 4 TRIAL BRIEF The exhibits appended to the Attridge Declaration make it plain that on the day the First Amended Complaint was filed, plaintiff had every reason to know that BJ Interstate had fulfilled its b.) obligation to confirm that Dedyk was insured. That is why he and Safe Auto Transport are being 4'; defended pursuant to a policy of insurance as we speak. And no piece of judicially noticed evidence is more damning than plaintiff s counsel’s own declaration confirming that Dedyk had insurance in \IQM place on the date of loss. (Exhibit 2) “Out of thine own mouth I will judge thee.” Luke, 19:22 September 14, 2017 Respectful s bmitted, 10 11 James Attridge 13 14 15 16 17 18 19 20 21 23 24 25 26 27 28 5 TRIAL BRIEF PROOF OF SERVICE I declare that I am over the age of eighteen (18) and not a party to this action. My business address is 270 Divisadero Street, #3, San Francisco, CA 94117. On September , 20117 I served the following document: Memorandum of Points and Authorities in Support Motion for Judgement on the Pleadings, on the interested parties in this action by placing a true and correct copy of such document, enclosed in a sealed envelope, addressed as follows: I Tom Crowell Michael Levangie \OOOQQUI-b Toschi, Sidran, Collins & Doyle Levangie Law Group 5145 Johnson Drive 2021 N Street Pleasanton, CA 94588 Sacramento, CA 94841 10 11 James Dombroski 12 PO. Box 751027 13 Petaluma, CA 94975 —1027 14 15 16 17 18 El 1 am readily familiar with the business” practice for collection and processing of 19 correspondence for mailing with the United States Postal Service. I know that the correspondence was deposited with the United States Postal Service on the same day this, declaration was executed in 20 ' the ordinary course of business. I know that the envelope was sealed and, with postage thereon fully prepaid, placed for collection and mailing on this date in the United States mail at, San Francisco, 21 California. 22 23 Executed: September H ,2017 24 25 26 \ \J J arhes Attridge 27 28 1 JOINT CASE MANAGEMENT CONFERENCE STATEMENT