Preview
We MICHAEL J. LEVANGIE, State Bar # 160163
LEVANGIE LAW GROUP
2 || 2021 N Street
Sacramento, CA 95811
3 Tel: (916) 443-4849
4|)
Fax: (916) 443-4855
Email: Michael.levangie@Ilg-law.com FILED
SAN MATEO COUNTY
5|) Attorneys for Defendant/Cross-Defendant: NOV @ 9 2018
BOGDAN DEDYK dba SAFE AUTO TRANSPORT
6 Clerk, Supptior Court f
7 By whe
eS
/
SESS
S>=
8 SUPERIOR COURT OF THE STATE OF CALIFORNIA
=>
9 FOR THE COUNTY OF SAN MATEO ==>
===
10 SS
1g >=
22S
i ANDY SABERI, CASE NO. CIV 536294 =>
Bs :3>>
Se es
12 Plaintiff,
Vv. REQUEST FOR JUDICAL NOTICE
13 IN SUPPORT OF
LES STANFORD CHEVROLET CADILLAC, MOTION FOR GOOD FAITH
14 INC., BJ INTERSTATE AUTO SETTLEMENT AND ORDER
TRANSPORTERS, INC., a Nevada corporation, DISMISSING ALL CROSS-
15 BOGDAN DEDYK, doing business as SAFE COMPLAINTS and/or JUDGEMENT ON
AUTO TRANSPORT, an individual, and DOES| THE PLEADINGS
16 1 through 25, inclusive,
17 Defendants. Date: _ olor] C4
Time: 9:00 A
18
Department 16 — Courtroom 7
19 Hon. Richard H. Du Bois
20 And Related Cross-Actions
21 TO ALL PARTIES AND THEIR RESPECTIVE ATTORNEYS OF RECORD AND TO THE
22 COURT IN THE ABOVE ENTITLED MATTER:
23 Pursuant to Evidence Code sections 452(d) & (h) and 453(a) & (b), ,Defendant/Cross-
24 Defendant Bogdan Dedyk dba Safe Auto Transport respectfully request this court to take judicial
25 notice of this courts records in Saberi v. Les Stanford Chevrolet Cadillac, Inc., ef al San Mateo
26 County Superior Court case number 536294, as well as records retrievable from the United States
27 government via its websites, with respect to this Motion for Determination of Good Faith
28
1
REQUEST FOR JUDICAL NOTICE IN SUPPORT OF MOTION FOR GOOD FAITH SETTLEMENT AND
ORDER DISMISSING ALL CROSS-COMPLAINTS and/or JUDGEMENT ON THE PLEADINGS
Settlement and Motion for Judgement on the Pleadings
Pursuant to Evidence Code § 452(d) — Pleadings filed in this action
1. Memorandum of Points and Authorities in Support of Motion for Judgment on the
Pleadings filed by Defendant /Cross Complainant B.J. Interstate.
Defendant/Cross-Complainant BJ Interstate’s Motion for Attorney Fees
Declaration of James Attridge filed in support of Motion for Attorney Fees
Cross Complaint filed by B J Interstate Ayto Transporters, Inc. against Bogdan
Dedyk, dba Safe Auto Transporters, Inc.
Pursuant to Evidence Code § 452(h) — United States Government Records
10 5. FMCSA Registration for B.J. Interstate as a Broker only.
1 6. USDOT # 2226247 (from fimcsa.dot.gov).
12 DATED: November7, 2018 LEVANGIE LAW
13
14
15
LE 4
‘Attorne
(AEL J. LEVANGIE
s for Doe Defend
BO! D DEDYK dbj/SAFE AUTO
16 TR PORT
17
18
19
20
21
22,
23
24
25
26
27
28
REQUEST FOR JUDICAL NOTICE IN SUPPORT OF MOTION FOR GOOD FAITH SETTLEMENT AND
ORDER DISMISSING ALL CROSS-COMPLAINTS and/or JUDGEMENT ON THE PLEADINGS
)...
. <«
JAMES ATTRIDGE [SBN NO. 124003]
LAW OFFICES OF JAMES ATTRIDGE
270 Divisadero Street, #3
San Francisco, CA 94117
LEGODUNTY
Telephone: (415) 552-3088 SAN MATEO
Email: jattridge@attridgelaw.com
|gep a2 2017
Attorney for Defendant BJ Interstate
Auto Transporters, Inc.
By.
G
hl
SUPERIOR COURT OF CALIFORNIA
COUNTY OF SAN MATEO
t 10
il
ANDY SABERI, an individual,
Plaintiff,
Case No: CIV-536294
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
18
19
INTRODUCTION —
20
There is only one cause of action (the fourth) directed at the moving party, BJInterstate 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
' a
FACTS
Plaintiff bought a corvette from co-defendant Les Stanford Chevrolet for $128, 391.91. (First
Amended Complaint, (FAC) Exhibit A) Stanford, located in Dearborn, Michigan contacted moving
party BJ Interstate Auto Transporters, Inc., a licensed transportation broker, to arrange for
transportation of the corvette to San Francisco. In tum BJ Interstate contacted co-defendant Dedyk,
dba Safe Auto Transport, to transport the corvette via car-catcher from Dearborn to California. (FAC
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
10 were cosmetically flawed, making the damage easily discernable. Mr. Saberi has sued Les Stanford
il contending the car is a lemon, sued Dedyk for causing damage in transit, and initially sued BJ
12 Interstate for that same reason.
13 Knowing Dedyk was insured, BJ Interstate mistakenly assumed that Dedyk would submit a
14 claim to its insurer, but apparently due to bizarre legal advice, he did not. Plaintiff Saberi took the
15 defaults of Dedyk and BJ Interstate before ever serving Les Stanford. On the date the undersigned
16 was retained, February 18, 2016 plaintiff Saberi’s counsel received an e-mail advising him that BJ
17 Interstate was a broker and could only be sued for negligent entrustment. That e-mail contained two
18 case citations to support the point and referred plaintiff's counsel to the Federal Motor Carrier Safety
19 Administration (FMCSA) website for verification. (Exhibit 1) On February 29, 2016 and March 23,
20 2016 plaintiff Saberi’s counsel received e-mails from Dedyk’s coverage counsel advising him that
21 Dedyk was being uncooperative. (Exhibit 2, Declaration of James Dombroski) Plaintiff Saberi
22 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
24 Saberi’s counsel threw his client under the bus, explaining plaintively that he opposed those motions
25 only because he was following orders.
26 On October 10, 2016 defendant Dedyk’s counsel filed the first of three Case Management
27 Conference Statements advising the Court Dedyk was in fact insured. A reservation of rights that
28 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
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)
10 This allegation that Dedyk was “uninsured” was not only made with no palpable support, but
il in complete indifference to the facts made plain in Exhibits 1, 2, and 3 and easily discernable by few
12 clicks of the mouse that would lead plaintiff to Exhibits 4, 5, and 6, as suggested in Exhibit 1 eight
13 months earlier. (Should plaintiff file an Opposition disputing the fact of Dedyk’s insurance, BJ
14 Interstate intends to supplement its Reply with plaintiff Saberi’s Mediation Statement as
15 impeachment.)
16
7 ARGUMENT
18
19 1. A Motion for Judgement on the Pleadings Can Properly Be Decided Based Upon Facts
20 Judicially Noticed
21 Like a demurrer, a Motion for Judgment on the Pleadings (CCP 438), tests the sufficiency of
a plaintiff's complaint. However, courts have held that a demurrer or Motion for Judgment on the
23 Pleadings may be predicated on extrinsic evidence, including judicially noticed matter in the court’s
24 own file. The rule against extrinsic evidence “has been relaxed in order to allow the court to take
25 judicial notice of evidentiary matters in its own records, including...declarations...which are
26 inconsistent with the allegations in the complaint...” Although generally a “...demurrer may not be
27 based on declarations, some cases have allowed consideration of statements made by the party who
28 drafted the challenged pleading.” Able v. Van Der Zee 256 Cal. App. 2d. 728, 734 (1967). Here,
3
TRIAL BRIEF
y “
plaintiff's 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 plaintiff’ s
admission...renders the complaint patently less than truthful.” Nulaid Farmers Assn. v. LaTorre
252Cal. App. 2d 788, 791 (1967).
Courts may also consider matter pursuant to judicial notice not in its file. Salterelli &
Stepanovich v. Douglas 40 Cal. App. 4" 1, 5 (1995, Barker v. Hull 191 Cal. App. 2d. 221, 224
(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
i 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 fora
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 of Insurance Companies v. H.A.
26 Transportation 243 F. Supp. 1064, 1072 (2002).
27
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
obligation to confirm tha: Dedyk was insured. That is why he and Safe Auto Transport are being
defended pursuant to a policy of insurance as we speak. And no piece of judicially noticed evidence
is more damning than plaintiffs counsel’s own declaration confirming that Dedyk had insurance in
place on the date of loss. (Exhibit 2)
“Out of thine owr. mouth I will judge thee.” Luke, 19:22
September 14, 2017 Respectful) sybmitted,
10
11
12 James Attridge
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
5
TRIAL BRIEF
rm
t es
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 , 2017 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]
ial lacing a true and correct copy of such document,
OWS:
enclosed in a sealed envelope, addressed as
Tom Crowell Michael Levangie
Toschi, Sidran, Collins & Doyle Levangie Law Group
5145 Johnson Drive 2021 N Street
Pleasanton, CA 94588 Sacramento, CA 94841
10
11 James Dombroski
12 P.O. Box 751027
13 Petaluma, CA 94975-1027
14
15
16
17
18
Oo I 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
22
23 Executed: September if » 2017
24
25
26
NV James Attridge
27
28
1
JOINT CASE MANAGEMENT CONFERENCE STATEMENT
C
RECEIVED
JAMES ATTRIDGE SBN 124003
LAW OFFICE OF JAMES ATTRIDGE.
ona‘hae
LEVANGEE
sth)
GROUP
270 Divisadero Street, #3
San Francisco, CA 94117
ye%
415-552-3088
Attorney for Defendant BJ Interstate Auto Transporters, Inc.
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF SAN MATEO UNLIMITED JURISDICTION
10 ANDY SABERI ) Case No.: CIV 5326294
11 Plaintiff )
)
12 VS.
DATE:
13 LES STANFORD CHEVROLET CADILLAC ) TIME:
INC., BJ INTERSTATE AUTO DEPT:
14 TRANSPORTATERS, INC,, BOGDAN DEDYK )
dba SAFE AUTO TRANSPORT, et. al
15
16 Defendant(s).
17
18
19
20 INTRODUCTION
21
22 As Thomas Jefferson put it in the Declaration of Independence “Let the facts be submitted to
23 a candid world.” In this case, which commenced almost three years ago the plaintiff, Andy Saberi,
24 and his lawyers:
25 1. Refused to set aside a default despite being provided legal authority and an avenue of
26 factual proof that he had-no case against BJ Interstate Auto Transporters, Inc. (“BJ
27 Interstate.
28
-1-
TNICEDT NAATIMENT TITT © fae MAATIANT TA CTDIVEY
Attempted to secure a $126,000.00 default judgement (plusattoney fees) by scheduling
a prove-up hearing on the uncontested calendar.
Opposed triune -notions to set aside defaults despite the fact California law disfavors
them.
Ramped up his war of attrition approach by having the gall to request attorney fees after
losing those motions.
Filed a First Amended Complaint founded upon the knowingly false allegation that
defendant Dedyk was uninsured solely to avoid a meritorious demurrer by BJ Interstate.
9 Lied in response to Requests for Admission to avoid a Summary Judgement motion.
10 Vigorously opposed a Motion for Judgement on the Pleadings solely on evidentiary
Ih grounds despite kaowing his case had no merit.
12 Persisted in efforts to shake nuisance money (or more) from a non-existent insurance
13 tree (he never served Form Interrogatory 4.1 or any other discovery)
14 Refused to dismiss his demonstrably false claim unless BJ Interstate bartered away her
15 right to file this motion.
16 The Jaw frowns on suzh conduct and resents being used as a tool for such undertakings. That
17 }|is why CCP 128.5 and CCP 233.420 exist. And it is why this court should wield them to
18 compensate BJ Interstate for the unnecessary costs it has borne: to discourage such behavior in the
19 || future and to punish Mr. Saberi and his lawyers for sinning against the system.
20
21 ARGUMENT
22
23 1. Plaintiff Deliberately Lied in Response to Requests for Admission to Perpetuate His
24 Quixotic Quest for Settlement Money
25 Despite overwhelmingly available information to the contrary Mr. Saberi verified under oath
26 || Responses to Requests for Admission prepared by his lawyer son Thomas Saberi under the caption
27 || of Law Offices of William Paynter that denied that Dedyk was licensed, and further denied that
28 || Dedyk was insured.
-2-
TNSERT NOCIIMENT TITLE fe0 MOTION
TO STRIKRY
BJ Interstate is but one victim of this lie. The other is the court, which was forced to expend
resources hearing motions and conducting fruitless settlement conferences. Thus the statute
provides for cost of proof sanctions and specifically states: “The moving party is entitled to
reasonable expenses including attorney fees.” CCP 2033 In Smith v. Circle P Ranch Co., Inc. 87 CA
3d. 267, 276 (1978) it was keld that a failure to undertake an investigation when the information is
at hand constitutes sanctionable conduct. Here, Thomas Saberi drafted, and Andy Saberi signed a
last-minute, out-of-the-cannon Response that was so hastily drafted that he in all likelihood didn’t
even get the caption straight. (Should Mr, Paynter file a declaration confirming this, BJ Interstate
will withdraw the motion as to Mr. Paynter.) Despite averring that “Responding party has made a
10 reasonable inquiry concerning matters of this request” it is obvious that Thomas Saberi didn’t even
11 bother to look out of the window first.
12
“Oh what a tangled web we weave when first we practice to deceive.” Had Mr. Saberi
1 23
simply denied Request for Admission No. 3 he might have explained the lie away by pleading
14
ignorance. But instead he committed the common liars’ mistake of embellishing the lie to make it
15
sound more plausible. To meke matters worse Mr. Saberi’s Amended Response, rather than being a
16
simple switch from “deny” to “admit” has the clumsiness of “the dog ate my homework” to it,
17
saying that it was only when he learned that Mr. Dedyk’s driver wasn’t uninsured that he saw fit to
18
change his answer. Bunk. No such allegation is made in the First Amended Complaint, and this
19
lame excuse only underscore the fact that since day one Mr. Saberi’s counsel has struthiously never
20
bothered to look up the law. “fa trucker is insured, he is liable for any accident his driver (even ifan
21
independent contractor) gets into. 49 CFR 376; Rodriguez v. Ager 705 F. 2d. 1279 (10" Cir. 1983)
22
23
2. Plaintiff's Deliberately False Response Was Part and Parcel of an Overall Strategy to
24
Coerce Settlemen: Money From An Innocent Party
25
BJ Interstate never touched Andy Saberi’s custom corvette. In fact, she never came
26
within 900 miles of it. BJ Interstae is located in Sun City, Arizona. The Saberimobile was
27
transported from Detroit to San Francisco along Interstate 80. BJ Interstate was a transportation
28
-3-
TNGEDT DACIMENT TITT Ela e MATION TA CTDTV EY
broker only and on the day it filed the First Amended Complaint Mr. Saberi knew that. In fact, he
pleaded it. He was also made aware of the relevant law. Chubb Group of Insurance Companies y.
#1.A. Transportation 243 F. Supp. 3d. 1060 (2002). But he persisted in suing somebody he knew
wasn’t liable.
California Code of Civil Procedure 128.5 provides: Every tial court may order a
6 Parbyattorney, or both to pay any reascnable expenses, including attorney fees incurred.by another
party as a result of bad faith actions or tactics that are frivolous. Frivolous means totally and
completely without merit. In Dwyer v. Crocker National Bank 194 CA 3d. 852, 878 (1987) the court
upheld a $72, 258.00 ( in 1987 dollars) sanction for filing a frivolous action in the face of at least
10 two notices that the claim had no basis in fact. In E. Gray Co. v. Gray 163 CA 3d. 1025 (1985) the
11 court held: “fo ensure that indefensible conduct does not occur abuse of the system subjects
12 attorneys to needless and taxing hours of labor, and their clients to additional unwarranted expense
13 and delay.”
14
15 CONCLUSION
16 Sanctions are warranted in this instance because the conduct of Mr. Saberi and his counsel
17 indicated that:
18 1) they view the court not as an instrument of civilized redress, but as a cudgel with which
19 to extort money from people who don’t owe anything;
20 2) they view litigation as something other than a means to ascertain truth, but to shake
21 money from the insurancé’tree, whether or not that tree is real. In the case of against BJ
22 Interstate, it was imagined;
23 3) they view the courthouse as a place for rich guys to throw petulant tantrums when their
24 $126,000.00 toys get scratched.
25 BJ Interstate is entitled to attorney fees calculated at least in the amount of $350.00'an hour:
26 || the amount plaintiff himself sought in the Dombroski Declaration of July 26, 2016. (RFJN #5) At
27 least 200 hours have been needlessly expended because of this baseless lawsuit over the last 34
28 months. BJ Interstate further requests a lodestar adjustment at the court’s discretion considering: 1)
-4-
TNICEDT NNCTIMENT TTT TG fae MAATIANT TA OTD TEN
-
punitive and exemplary nezessity and 2) the risk assumed by BJ Interstate’s counsel given BJ
Interstate’s precarious finances.
The casual seat-of the-pants mendacity with which he and his son approached their
compulsory duty to tell the truth under oath is illustrative of broader points .They lied. They lied
both narrowly and universally. They lied narrowly when they flat-out lied to a simple question and
did it under oath. They lied broadly by pursuing allegations that they either knew were false or
obtusely avoided discerning, despite the ready availability of proof of their truth. That is the sort of
behavior that rightfully ought to be discouraged, especially among frequent courthouse fliers like
Mr. Saberi. (The court’s own website reveals he has been a party here to 43 lawsuits.) That is why
10 CCP 128.5 and CCP 433.420 exist: to sze to it that the Andy Saberis of the world and their personal
11 Michael Cohens knock itoff
12
13 Dated October 22, 2018 eth yay
- y
14 James Attridge, Counsel for BJ Interstate
15
16
17
18
19
20
21
22
23
24
25
26
27
28
-5-
INSERT DOCUMENT TITLE (e.g.. MOTION TO STRIKE)
x. ~
wr] owl ap
JAMES ATTRIDGE [Bar No. 124003)
LAW OFFICE OF JAMES ATTRIDGE
270 Divisadero Street, #3
Seo
San Francisco, CA 94117 LEVANGIE LAW GROUP
Telephone: (415) 552-3088 Vip Pew
Attorneys for Defendant
BJ Interstate Auto Transporters, Inc.
SUPERICR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF SAN MATEO
10 UNLIMITED JURISDICTION
11
12 ANDY SABERI, Case No: CIV 536294
13 Plaintifé, DECLARATION OF JAMES ATTRIDGE IN
14 SUPPORT OF MOTION FOR ATTORNEY FEE
VS. AWARD AGAINST PLAINTIFF ANDY SABERI
AND HIS COUNSEL JAMES DOMBROSKI,
15 LES STANFORD CHEVROLET THOMAS SABERI AND WILLIAM PAYNTER
CADILLAC, INC., BJ INTERSTATE
16 AUTO TRANSPORTERS, INC. AND DATE:
BOGDAN DEDYK dba SAFE AUTO
17 TRANSPORT, et. al. TIME:
18 Defendants. DEPARTARTMENT
19
20
I, James Attridge declare and state that I am licensed to practice before the courts of this
21
state and am attorney of record for defendant and moving party BJ Interstate Auto Transporters,
22
Inc. I know the following of my own personal knowledge and if called upon to do so, could and
23
would competently testify thezeto.
24
1 I was first contacted by BJ Interstate Auto Transporters, Inc, (BJ Interstate) in connection
25
with the defense of this matter on February 18, 2016. I advised BJ Interstate that it should
26
not take long to convir.ce the plaintiff to voluntarily dismiss the case because interstate
27
transportation brokers like BJ Interstate are not liable for interstate cargo losses and
28
because 1 was the prevailing lawyer in a published opinion so holding, Chubb Group of
Insurance Companies v. H.A. Transportation 243 F. Supp @d. 1064. Limmediately
contacted plaintiff's lawyer Mr. Dombrowski, explained this position and requested that he
voluntarily set aside the default he had taken. J also e-mailed him what is attached hereto
as Exhibit A stating “I will contend that my client is an interstate freight broker and can
only be liable for negligent entrustment, and only if it has referred the shipper to a carrier
that is neither licensed not insured. A quick check of the Federal Motor Carrier Safety
Administration website will show that the carrier was both.”
On February 29, 2016 and later on March 23, 2016 attorney Steven Soltman forwarded
10 emails to Mr. Dombroski identifying himself as coverage counsel for the insurer of
11 Bogdan Dedyk , dba Safe Auto Transport and referring to Bogdan Dedyk as the insured.
12 (Request for Judicial Notice Item 5.)
13 On April 22, 2016 at the hearing of my Ex Parte Motion to set Aside the default, which I
14 filed because of Les Stanford’s prospective removal of the case to federal court, I advised
15 plaintiff's son and counsel, Thomas Saberi that my client was not required to carry
16 insurance and only had a bond to secure payment of freight charges.
17 On July 15, 2016 Mr. Dedyk filede a declaration in support of a motion to set aside the
18 default taken against him that stated “After submitting the claim to my insurance broker, I
19 believed my insurance carrier was acting on my behalf.” (RFJN #4)
20 At the hearing on the motions to set aside the defaults Mr. Dombroski advised the court he
21 ‘was opposing the motions at the direction of his client, Mr. Saberi and contrary to the
22 advice he had given him.
23 Despite these readily confirmed facts and representations plaintiff filed his First Amended
24 Complaint on October 19, 2016 stating only a cause of action for negligence against BJ
25 Interstate based upon the sole faccual allegation that it had referred the business to Dedyk
26 and that Dedyk was neither licensed not insured. (FAC paras 13, 31, 31) (RFJN #7)
27 On October 22, 2016, November 22, 2016, and January 24, 2017 Bogdan Dedyk filed Case
28 Management Statements representing that it was being represented by insurers. (RFJN #s
6,8
& 9)
8 Also on January 24, 2017 Bogdan Deyk served on all parties Responses to Form
Interrogatories promulgated by plaintiff Saberi stating in response to Form Interrogatory
No 4.1 that on the date of loss a policy of insurance was in effect and identified the
particulars of the policy called for in the form interrogatory. (Exhibit B) In a discovery /
motion filed on April 16, 2018 a year and four months later, plaintiff Saberi’s counsel
referred to this interrogatory response claiming “It is clear from this interrogatory response
that one or more policies do, in fact, exist.” (Exhibit D attached, is true and correct.)
Despite these known facts on March 7, 2017 plaintiff's son, attorney Thomas Saberi
10 prepared, and Mr. Saberi verified this response under penalty of perjury:
11 Request for Admission No 3: In September/October 2015 Dedyk, dba Safe Auto Transport
12 was named insured on a Motor Truck Cargo Policy of Insurance with a limit of
13 $250,000.00.” Even though this fact could have been easily verified on the FMCSA
14 website called to Mr. Dombroski’s attention more than a year earlier, plaintiff answered
15 that Request for Admission saying: “Responding party has made a reasonable inquiry and
16 information known and readily available is insufficient to allow Responding Party to admit
W7 or deny the subject matter of the request.” Plaintiff also verified a response to Form
18 Interrogatory 17.1 identifying these responses stating he “had no personal knowledge” of
19 the fact upon which he based his response or the name of anyone who did, or any
20 documents that supported the denial. (Exhibit C)
21 10. On April 10, 2017 Bogdan Deyk served on all parties responses to these Requests For
22 Admission:
23 Request No 1: In September/October, 2015 you had been issued US DOT carrier authority
24 829905.
25 Response: Admitted
26 Request No: 3: In Septembet/October 2015 Bogdan Dedyk dba Safe Auto Transport was
27 named insured on a Motor Truck policy of insurance with a limit of $250,000.00.
28 Response: Admitted.
A true and correct copy of these Requests and Responses is attached hereto as Exhibit D.
11 Assuming Mr. Sabe-i would rather dismiss than persist, I planned on securing a voluntary
dismissal at or before a court-ordered mediation set for August 28, 2017. I had requested
that my client, located in Arizona attend the mediation by telephone. Mr. Dombroski
consented as long as BJ’s “insurance representative” was in attendance. At Mr. Saberi’s
request that mediaticn was continued.
12. Due to the fact Mr. Saberi had earlier demonstrated an unwillingness to dismiss the case, I
concluded that he wes approaching the litigation as a sort of war of attrition. Further, I
reasoned that a party willing to lie in response to a request for admission was equally
10 willing to concoct a bogus issue of material fact to withstand a summary judgment motion.
il So I opted instead to file a Motion for Judgement on the Pleadings based upon what 1
12 believed (and still beieve) to be judicially noticeable documents. That motion was set for
a
3 October 20, 2017 anc. was vigorously opposed on evidentiary grounds. I did not challenge
14 the tentative ruling, believing such an effort futile.
15 13. On March 9, 2018 M-. Dedyk again stated at his deposition that on the date of loss he was
16 both licensed and insured.
17 14, Within days Mr. Dorbroski offered to dismiss Mr. Saberi’s complaint against BJ
18 Interstate provided the dismissals were mutual. I advised him that I had filed no cross
19 complaint against Mr. Saberi and intended to seek attorney fees both for lying in response
20 to requests for admission.and for pursuing a demonstrably groundless lawsuit.
21 15, The mediation was finally conducted before William Diffenderfer on March 22, 2018. Les
22 Stanford settled for $25,000.00.
2
3 16. On April 16, 2018 Mr Dombroski filed a motion to compel production against Dedyk
24 (RFIN # 10) referencing Dedyk’s Response to Form Interrogatories mentioned above and
25 identified as Exhibit B, stating “ It is clear from the interrogatory responses that one or
26 more policies, do, in fact, exist.”
27 17. On May 17, 2018 Mr. Saberi served his Amended Responses to Request for Admission
28 No. 3, a true and correct copy of which is attached as Exhibit E. Despite finally admitting
he had no case, Mr. Saberi did not dismiss and soldiered on.
18. At no time did plaintiff Saberi or his counsel direct any formal discovery to my client.
19, Plaintiff Saberi did not designate an expert witness on the standard of care to be exercised
by a transportation broker.
20 Two subsequent settlement conferences were conducted before Judges Foiles and
Grandsaert. Nothing happend.
21 Without any further discussion with me of any kind Mr. Dombroski dismissed the case
against BJ Interstate (oddly, without prejudice) on the last day before trial.
22. BJ Interstate Auto Transporters is a smal! business operated by Beverly Larson and her
10 retired husband in Sun City, Arizona. It generates only $38,000.00 annual income. I was
I referred to them by a friend and fellow transportation lawyer in Scottsdale, Arizona, Gary
12 Doyle. At the outset, I assumed that once I explained the facts and the law to Mr.
13 Dombroski and advised him of how to verify what I said, he would dismiss the case
14 voluntarily. This had been my experience with other plaintiffs counsels suing brokers in
15 the past.
16 23 Attached hereto as Exhibit F are attorney fee bills for my services in this case reflecting
7 176.4 hours of time spent. Given that I never expected BJ Interstate to be able to pay me,
18 and given the fact I was always assuming plaintiff would somehow face reality and dismiss
19 BJ Interstate, some time entries are no doubt omitted. I have attached a recent curriculum
20 vitae to that Exhibit
21 24 In a Declaration filed January 17, 2017 Mr. Domroski declared his, as well as Thomas
22 Saberi’s time to be worth $350.00 an hour. (RFJN #11).
23
24 I declare under penalty of perjury under the laws of the State of California that the foregoing is .
25 true and correct. Executed at Littleton, Colorado October 9 :2018.
|i‘
26
27 (\
28 James Attridge, Counsel for BJ Interstate
(2122/2016 SquirrelMail
—
Subject Re: Sabieri lawsuit
From: "James Attridge"
Date: Mon, February 22, 2016 11:28 am
To: Jdomski@aol.com
Priority: Normal
ok
1 Sat, February 28, 2016 2:01 pm, Jdomski@aol.com wrote:
> Jim, ~
> My client is out of the country until Wednesday. I hope to get back to you
> by Thursday, 2/25. Jim
>
>
>
> In a message dated 2/18/2016 11:59:27 A.M. Pacific Standard Time,
> jattridge@attridgelaw.com writes:
> Dear Mr. Dombrowski:
>
>
> It was a pleasure speaking with you. I will be representing BJ
> Interstate in the case you have filed on behalf of Mr. Sabieri. I am
~‘ writing to request that you voluntarily vacate the default you have
+ entered. As I'm sure you are well aware, motions tu sel Uefaulls aslue
are routinely granted.
~,
You may also
wish to review the holdings in Chatelaine v. Twin Modal
and Chubb v.
HA Transportation 243 F. Supp 2d 1064. I will contend that my
client as an interstate freight broker can only be liable for negligent
entrustment, and only if it has referred the shipper to a carrier that is
neither licensed nor insured. A quick check of the Federal Motor Carrier
Administration website will show that the carrier
was both.
My address is 278 Divisadero Street, #3 San Francisco 94117, and my
phone is 415-552-3688. I am looking forward to working with you.
Yours truly
Attachments to Declaration Omitted
PLD-PI-002
‘ATTORNEY OR PARTY WITHOUT ATTORNEY (Namo, siale bar number, and address): ‘FOR COURT USE ONLY
James Attridge SBN 124003
| 270 Divisadero Street, #3
San Francisco, CA 94117
retepHone No: 415-552-3088 FAX NO. (Optional
E-MAIL ADDRESS (Optional): jattridge@attridgelaw.com
ATTORNEY FOR (Namo): BJ Interstate Auto Transporters, Inc.
NAME OF COURT: San Mateo County Superior Court
STREET ADDRESS: 400 County Center
MAILING ADDRESS:
CITY AND ZIP Cope: Redwood City, CA 94063
BRANCH NAME:
SHORT TITLE:
Saberi v. Les Stanford, et. al.
CROSS-COMPLAINANT:
BJ Interstate Auto Transporters, Inc!
CROSS-DEFENDANT:
Bogdan Dedyk, dba Safe Auto Transporters, Inc.
[1] 00es 1 To
CROSS-COMPLAINT—Personal Injury, Property Damage, Wrongful Death
[J AMENDED (Number):
Gauses of Action (check ail that apply):
(1) Apportionment of Fault (J Declaratory Relief
Indemnification (__] Other (specify):
Jurisdiction (check all that apply): CASE NUMBER:
() ACTION IS A LIMITED CIVIL CASE ($25,000 or less) 536294
ACTION IS AN UNLIMITED CIVIL CASE (exceeds $25,000)
It (J is (1) is not reclassified as unlimited by this cross-complaint
4, CROSS-COMPLAINANT (name):
BJ Interstate Auto Transporters, Inc.
alleges causes of action against CROSS-DEFENDANT (name):
Bogdan Dedyk, dba Safe Auto Transporters, Inc.
2. This pleading, including exhibits and attachments, consists of the following number of pages: 3
3. Each cross-complainant named above is a competent adult
a except cross-complainant (name): BJ Interstate Auto Transporters, Inc.
(1) a corporation qualified to do business in California
(2) [=] an unincorporated entity (describe):
(3) [) a public entity (desciribe):
(4) (7) a minor 2) an adutt
(a) [2] for whom a guardian or conservator of the estate or a guardian ad litern has been appointed
(b) [_] other (specify):
(5) ([) other (specify):
C3 Information about additional cross-complainants who are not competent adults is contained in
Cross-Complaint—Attachment 3.
Page 1 of 3
Form Approved for Optional Use CROSS-COMPLAINT—Personal Injury, Code of Civil Procedure,
§ 425.12
Judicial Council of California
P1002 R
Preview
We MICHAEL J. LEVANGIE, State Bar # 160163 LEVANGIE LAW GROUP 2 || 2021 N Street Sacramento, CA 95811 3 Tel: (916) 443-4849 4|) Fax: (916) 443-4855 Email: Michael.levangie@Ilg-law.com FILED SAN MATEO COUNTY 5|) Attorneys for Defendant/Cross-Defendant: NOV @ 9 2018 BOGDAN DEDYK dba SAFE AUTO TRANSPORT 6 Clerk, Supptior Court f 7 By whe eS / SESS S>= 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA => 9 FOR THE COUNTY OF SAN MATEO ==> === 10 SS 1g >= 22S i ANDY SABERI, CASE NO. CIV 536294 => Bs :3>> Se es 12 Plaintiff, Vv. REQUEST FOR JUDICAL NOTICE 13 IN SUPPORT OF LES STANFORD CHEVROLET CADILLAC, MOTION FOR GOOD FAITH 14 INC., BJ INTERSTATE AUTO SETTLEMENT AND ORDER TRANSPORTERS, INC., a Nevada corporation, DISMISSING ALL CROSS- 15 BOGDAN DEDYK, doing business as SAFE COMPLAINTS and/or JUDGEMENT ON AUTO TRANSPORT, an individual, and DOES| THE PLEADINGS 16 1 through 25, inclusive, 17 Defendants. Date: _ olor] C4 Time: 9:00 A 18 Department 16 — Courtroom 7 19 Hon. Richard H. Du Bois 20 And Related Cross-Actions 21 TO ALL PARTIES AND THEIR RESPECTIVE ATTORNEYS OF RECORD AND TO THE 22 COURT IN THE ABOVE ENTITLED MATTER: 23 Pursuant to Evidence Code sections 452(d) & (h) and 453(a) & (b), ,Defendant/Cross- 24 Defendant Bogdan Dedyk dba Safe Auto Transport respectfully request this court to take judicial 25 notice of this courts records in Saberi v. Les Stanford Chevrolet Cadillac, Inc., ef al San Mateo 26 County Superior Court case number 536294, as well as records retrievable from the United States 27 government via its websites, with respect to this Motion for Determination of Good Faith 28 1 REQUEST FOR JUDICAL NOTICE IN SUPPORT OF MOTION FOR GOOD FAITH SETTLEMENT AND ORDER DISMISSING ALL CROSS-COMPLAINTS and/or JUDGEMENT ON THE PLEADINGS Settlement and Motion for Judgement on the Pleadings Pursuant to Evidence Code § 452(d) — Pleadings filed in this action 1. Memorandum of Points and Authorities in Support of Motion for Judgment on the Pleadings filed by Defendant /Cross Complainant B.J. Interstate. Defendant/Cross-Complainant BJ Interstate’s Motion for Attorney Fees Declaration of James Attridge filed in support of Motion for Attorney Fees Cross Complaint filed by B J Interstate Ayto Transporters, Inc. against Bogdan Dedyk, dba Safe Auto Transporters, Inc. Pursuant to Evidence Code § 452(h) — United States Government Records 10 5. FMCSA Registration for B.J. Interstate as a Broker only. 1 6. USDOT # 2226247 (from fimcsa.dot.gov). 12 DATED: November7, 2018 LEVANGIE LAW 13 14 15 LE 4 ‘Attorne (AEL J. LEVANGIE s for Doe Defend BO! D DEDYK dbj/SAFE AUTO 16 TR PORT 17 18 19 20 21 22, 23 24 25 26 27 28 REQUEST FOR JUDICAL NOTICE IN SUPPORT OF MOTION FOR GOOD FAITH SETTLEMENT AND ORDER DISMISSING ALL CROSS-COMPLAINTS and/or JUDGEMENT ON THE PLEADINGS )... . <« JAMES ATTRIDGE [SBN NO. 124003] LAW OFFICES OF JAMES ATTRIDGE 270 Divisadero Street, #3 San Francisco, CA 94117 LEGODUNTY Telephone: (415) 552-3088 SAN MATEO Email: jattridge@attridgelaw.com |gep a2 2017 Attorney for Defendant BJ Interstate Auto Transporters, Inc. By. G hl SUPERIOR COURT OF CALIFORNIA COUNTY OF SAN MATEO t 10 il ANDY SABERI, an individual, Plaintiff, Case No: CIV-536294 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 18 19 INTRODUCTION — 20 There is only one cause of action (the fourth) directed at the moving party, BJInterstate 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 ' a FACTS Plaintiff bought a corvette from co-defendant Les Stanford Chevrolet for $128, 391.91. (First Amended Complaint, (FAC) Exhibit A) Stanford, located in Dearborn, Michigan contacted moving party BJ Interstate Auto Transporters, Inc., a licensed transportation broker, to arrange for transportation of the corvette to San Francisco. In tum BJ Interstate contacted co-defendant Dedyk, dba Safe Auto Transport, to transport the corvette via car-catcher from Dearborn to California. (FAC 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 10 were cosmetically flawed, making the damage easily discernable. Mr. Saberi has sued Les Stanford il contending the car is a lemon, sued Dedyk for causing damage in transit, and initially sued BJ 12 Interstate for that same reason. 13 Knowing Dedyk was insured, BJ Interstate mistakenly assumed that Dedyk would submit a 14 claim to its insurer, but apparently due to bizarre legal advice, he did not. Plaintiff Saberi took the 15 defaults of Dedyk and BJ Interstate before ever serving Les Stanford. On the date the undersigned 16 was retained, February 18, 2016 plaintiff Saberi’s counsel received an e-mail advising him that BJ 17 Interstate was a broker and could only be sued for negligent entrustment. That e-mail contained two 18 case citations to support the point and referred plaintiff's counsel to the Federal Motor Carrier Safety 19 Administration (FMCSA) website for verification. (Exhibit 1) On February 29, 2016 and March 23, 20 2016 plaintiff Saberi’s counsel received e-mails from Dedyk’s coverage counsel advising him that 21 Dedyk was being uncooperative. (Exhibit 2, Declaration of James Dombroski) Plaintiff Saberi 22 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 24 Saberi’s counsel threw his client under the bus, explaining plaintively that he opposed those motions 25 only because he was following orders. 26 On October 10, 2016 defendant Dedyk’s counsel filed the first of three Case Management 27 Conference Statements advising the Court Dedyk was in fact insured. A reservation of rights that 28 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 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) 10 This allegation that Dedyk was “uninsured” was not only made with no palpable support, but il in complete indifference to the facts made plain in Exhibits 1, 2, and 3 and easily discernable by few 12 clicks of the mouse that would lead plaintiff to Exhibits 4, 5, and 6, as suggested in Exhibit 1 eight 13 months earlier. (Should plaintiff file an Opposition disputing the fact of Dedyk’s insurance, BJ 14 Interstate intends to supplement its Reply with plaintiff Saberi’s Mediation Statement as 15 impeachment.) 16 7 ARGUMENT 18 19 1. A Motion for Judgement on the Pleadings Can Properly Be Decided Based Upon Facts 20 Judicially Noticed 21 Like a demurrer, a Motion for Judgment on the Pleadings (CCP 438), tests the sufficiency of a plaintiff's complaint. However, courts have held that a demurrer or Motion for Judgment on the 23 Pleadings may be predicated on extrinsic evidence, including judicially noticed matter in the court’s 24 own file. The rule against extrinsic evidence “has been relaxed in order to allow the court to take 25 judicial notice of evidentiary matters in its own records, including...declarations...which are 26 inconsistent with the allegations in the complaint...” Although generally a “...demurrer may not be 27 based on declarations, some cases have allowed consideration of statements made by the party who 28 drafted the challenged pleading.” Able v. Van Der Zee 256 Cal. App. 2d. 728, 734 (1967). Here, 3 TRIAL BRIEF y “ plaintiff's 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 plaintiff’ s admission...renders the complaint patently less than truthful.” Nulaid Farmers Assn. v. LaTorre 252Cal. App. 2d 788, 791 (1967). Courts may also consider matter pursuant to judicial notice not in its file. Salterelli & Stepanovich v. Douglas 40 Cal. App. 4" 1, 5 (1995, Barker v. Hull 191 Cal. App. 2d. 221, 224 (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 i 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 fora 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 of Insurance Companies v. H.A. 26 Transportation 243 F. Supp. 1064, 1072 (2002). 27 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 obligation to confirm tha: Dedyk was insured. That is why he and Safe Auto Transport are being defended pursuant to a policy of insurance as we speak. And no piece of judicially noticed evidence is more damning than plaintiffs counsel’s own declaration confirming that Dedyk had insurance in place on the date of loss. (Exhibit 2) “Out of thine owr. mouth I will judge thee.” Luke, 19:22 September 14, 2017 Respectful) sybmitted, 10 11 12 James Attridge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5 TRIAL BRIEF rm t es 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 , 2017 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] ial lacing a true and correct copy of such document, OWS: enclosed in a sealed envelope, addressed as Tom Crowell Michael Levangie Toschi, Sidran, Collins & Doyle Levangie Law Group 5145 Johnson Drive 2021 N Street Pleasanton, CA 94588 Sacramento, CA 94841 10 11 James Dombroski 12 P.O. Box 751027 13 Petaluma, CA 94975-1027 14 15 16 17 18 Oo I 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 22 23 Executed: September if » 2017 24 25 26 NV James Attridge 27 28 1 JOINT CASE MANAGEMENT CONFERENCE STATEMENT C RECEIVED JAMES ATTRIDGE SBN 124003 LAW OFFICE OF JAMES ATTRIDGE. ona‘hae LEVANGEE sth) GROUP 270 Divisadero Street, #3 San Francisco, CA 94117 ye% 415-552-3088 Attorney for Defendant BJ Interstate Auto Transporters, Inc. SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SAN MATEO UNLIMITED JURISDICTION 10 ANDY SABERI ) Case No.: CIV 5326294 11 Plaintiff ) ) 12 VS. DATE: 13 LES STANFORD CHEVROLET CADILLAC ) TIME: INC., BJ INTERSTATE AUTO DEPT: 14 TRANSPORTATERS, INC,, BOGDAN DEDYK ) dba SAFE AUTO TRANSPORT, et. al 15 16 Defendant(s). 17 18 19 20 INTRODUCTION 21 22 As Thomas Jefferson put it in the Declaration of Independence “Let the facts be submitted to 23 a candid world.” In this case, which commenced almost three years ago the plaintiff, Andy Saberi, 24 and his lawyers: 25 1. Refused to set aside a default despite being provided legal authority and an avenue of 26 factual proof that he had-no case against BJ Interstate Auto Transporters, Inc. (“BJ 27 Interstate. 28 -1- TNICEDT NAATIMENT TITT © fae MAATIANT TA CTDIVEY Attempted to secure a $126,000.00 default judgement (plusattoney fees) by scheduling a prove-up hearing on the uncontested calendar. Opposed triune -notions to set aside defaults despite the fact California law disfavors them. Ramped up his war of attrition approach by having the gall to request attorney fees after losing those motions. Filed a First Amended Complaint founded upon the knowingly false allegation that defendant Dedyk was uninsured solely to avoid a meritorious demurrer by BJ Interstate. 9 Lied in response to Requests for Admission to avoid a Summary Judgement motion. 10 Vigorously opposed a Motion for Judgement on the Pleadings solely on evidentiary Ih grounds despite kaowing his case had no merit. 12 Persisted in efforts to shake nuisance money (or more) from a non-existent insurance 13 tree (he never served Form Interrogatory 4.1 or any other discovery) 14 Refused to dismiss his demonstrably false claim unless BJ Interstate bartered away her 15 right to file this motion. 16 The Jaw frowns on suzh conduct and resents being used as a tool for such undertakings. That 17 }|is why CCP 128.5 and CCP 233.420 exist. And it is why this court should wield them to 18 compensate BJ Interstate for the unnecessary costs it has borne: to discourage such behavior in the 19 || future and to punish Mr. Saberi and his lawyers for sinning against the system. 20 21 ARGUMENT 22 23 1. Plaintiff Deliberately Lied in Response to Requests for Admission to Perpetuate His 24 Quixotic Quest for Settlement Money 25 Despite overwhelmingly available information to the contrary Mr. Saberi verified under oath 26 || Responses to Requests for Admission prepared by his lawyer son Thomas Saberi under the caption 27 || of Law Offices of William Paynter that denied that Dedyk was licensed, and further denied that 28 || Dedyk was insured. -2- TNSERT NOCIIMENT TITLE fe0 MOTION TO STRIKRY BJ Interstate is but one victim of this lie. The other is the court, which was forced to expend resources hearing motions and conducting fruitless settlement conferences. Thus the statute provides for cost of proof sanctions and specifically states: “The moving party is entitled to reasonable expenses including attorney fees.” CCP 2033 In Smith v. Circle P Ranch Co., Inc. 87 CA 3d. 267, 276 (1978) it was keld that a failure to undertake an investigation when the information is at hand constitutes sanctionable conduct. Here, Thomas Saberi drafted, and Andy Saberi signed a last-minute, out-of-the-cannon Response that was so hastily drafted that he in all likelihood didn’t even get the caption straight. (Should Mr, Paynter file a declaration confirming this, BJ Interstate will withdraw the motion as to Mr. Paynter.) Despite averring that “Responding party has made a 10 reasonable inquiry concerning matters of this request” it is obvious that Thomas Saberi didn’t even 11 bother to look out of the window first. 12 “Oh what a tangled web we weave when first we practice to deceive.” Had Mr. Saberi 1 23 simply denied Request for Admission No. 3 he might have explained the lie away by pleading 14 ignorance. But instead he committed the common liars’ mistake of embellishing the lie to make it 15 sound more plausible. To meke matters worse Mr. Saberi’s Amended Response, rather than being a 16 simple switch from “deny” to “admit” has the clumsiness of “the dog ate my homework” to it, 17 saying that it was only when he learned that Mr. Dedyk’s driver wasn’t uninsured that he saw fit to 18 change his answer. Bunk. No such allegation is made in the First Amended Complaint, and this 19 lame excuse only underscore the fact that since day one Mr. Saberi’s counsel has struthiously never 20 bothered to look up the law. “fa trucker is insured, he is liable for any accident his driver (even ifan 21 independent contractor) gets into. 49 CFR 376; Rodriguez v. Ager 705 F. 2d. 1279 (10" Cir. 1983) 22 23 2. Plaintiff's Deliberately False Response Was Part and Parcel of an Overall Strategy to 24 Coerce Settlemen: Money From An Innocent Party 25 BJ Interstate never touched Andy Saberi’s custom corvette. In fact, she never came 26 within 900 miles of it. BJ Interstae is located in Sun City, Arizona. The Saberimobile was 27 transported from Detroit to San Francisco along Interstate 80. BJ Interstate was a transportation 28 -3- TNGEDT DACIMENT TITT Ela e MATION TA CTDTV EY broker only and on the day it filed the First Amended Complaint Mr. Saberi knew that. In fact, he pleaded it. He was also made aware of the relevant law. Chubb Group of Insurance Companies y. #1.A. Transportation 243 F. Supp. 3d. 1060 (2002). But he persisted in suing somebody he knew wasn’t liable. California Code of Civil Procedure 128.5 provides: Every tial court may order a 6 Parbyattorney, or both to pay any reascnable expenses, including attorney fees incurred.by another party as a result of bad faith actions or tactics that are frivolous. Frivolous means totally and completely without merit. In Dwyer v. Crocker National Bank 194 CA 3d. 852, 878 (1987) the court upheld a $72, 258.00 ( in 1987 dollars) sanction for filing a frivolous action in the face of at least 10 two notices that the claim had no basis in fact. In E. Gray Co. v. Gray 163 CA 3d. 1025 (1985) the 11 court held: “fo ensure that indefensible conduct does not occur abuse of the system subjects 12 attorneys to needless and taxing hours of labor, and their clients to additional unwarranted expense 13 and delay.” 14 15 CONCLUSION 16 Sanctions are warranted in this instance because the conduct of Mr. Saberi and his counsel 17 indicated that: 18 1) they view the court not as an instrument of civilized redress, but as a cudgel with which 19 to extort money from people who don’t owe anything; 20 2) they view litigation as something other than a means to ascertain truth, but to shake 21 money from the insurancé’tree, whether or not that tree is real. In the case of against BJ 22 Interstate, it was imagined; 23 3) they view the courthouse as a place for rich guys to throw petulant tantrums when their 24 $126,000.00 toys get scratched. 25 BJ Interstate is entitled to attorney fees calculated at least in the amount of $350.00'an hour: 26 || the amount plaintiff himself sought in the Dombroski Declaration of July 26, 2016. (RFJN #5) At 27 least 200 hours have been needlessly expended because of this baseless lawsuit over the last 34 28 months. BJ Interstate further requests a lodestar adjustment at the court’s discretion considering: 1) -4- TNICEDT NNCTIMENT TTT TG fae MAATIANT TA OTD TEN - punitive and exemplary nezessity and 2) the risk assumed by BJ Interstate’s counsel given BJ Interstate’s precarious finances. The casual seat-of the-pants mendacity with which he and his son approached their compulsory duty to tell the truth under oath is illustrative of broader points .They lied. They lied both narrowly and universally. They lied narrowly when they flat-out lied to a simple question and did it under oath. They lied broadly by pursuing allegations that they either knew were false or obtusely avoided discerning, despite the ready availability of proof of their truth. That is the sort of behavior that rightfully ought to be discouraged, especially among frequent courthouse fliers like Mr. Saberi. (The court’s own website reveals he has been a party here to 43 lawsuits.) That is why 10 CCP 128.5 and CCP 433.420 exist: to sze to it that the Andy Saberis of the world and their personal 11 Michael Cohens knock itoff 12 13 Dated October 22, 2018 eth yay - y 14 James Attridge, Counsel for BJ Interstate 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -5- INSERT DOCUMENT TITLE (e.g.. MOTION TO STRIKE) x. ~ wr] owl ap JAMES ATTRIDGE [Bar No. 124003) LAW OFFICE OF JAMES ATTRIDGE 270 Divisadero Street, #3 Seo San Francisco, CA 94117 LEVANGIE LAW GROUP Telephone: (415) 552-3088 Vip Pew Attorneys for Defendant BJ Interstate Auto Transporters, Inc. SUPERICR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SAN MATEO 10 UNLIMITED JURISDICTION 11 12 ANDY SABERI, Case No: CIV 536294 13 Plaintifé, DECLARATION OF JAMES ATTRIDGE IN 14 SUPPORT OF MOTION FOR ATTORNEY FEE VS. AWARD AGAINST PLAINTIFF ANDY SABERI AND HIS COUNSEL JAMES DOMBROSKI, 15 LES STANFORD CHEVROLET THOMAS SABERI AND WILLIAM PAYNTER CADILLAC, INC., BJ INTERSTATE 16 AUTO TRANSPORTERS, INC. AND DATE: BOGDAN DEDYK dba SAFE AUTO 17 TRANSPORT, et. al. TIME: 18 Defendants. DEPARTARTMENT 19 20 I, James Attridge declare and state that I am licensed to practice before the courts of this 21 state and am attorney of record for defendant and moving party BJ Interstate Auto Transporters, 22 Inc. I know the following of my own personal knowledge and if called upon to do so, could and 23 would competently testify thezeto. 24 1 I was first contacted by BJ Interstate Auto Transporters, Inc, (BJ Interstate) in connection 25 with the defense of this matter on February 18, 2016. I advised BJ Interstate that it should 26 not take long to convir.ce the plaintiff to voluntarily dismiss the case because interstate 27 transportation brokers like BJ Interstate are not liable for interstate cargo losses and 28 because 1 was the prevailing lawyer in a published opinion so holding, Chubb Group of Insurance Companies v. H.A. Transportation 243 F. Supp @d. 1064. Limmediately contacted plaintiff's lawyer Mr. Dombrowski, explained this position and requested that he voluntarily set aside the default he had taken. J also e-mailed him what is attached hereto as Exhibit A stating “I will contend that my client is an interstate freight broker and can only be liable for negligent entrustment, and only if it has referred the shipper to a carrier that is neither licensed not insured. A quick check of the Federal Motor Carrier Safety Administration website will show that the carrier was both.” On February 29, 2016 and later on March 23, 2016 attorney Steven Soltman forwarded 10 emails to Mr. Dombroski identifying himself as coverage counsel for the insurer of 11 Bogdan Dedyk , dba Safe Auto Transport and referring to Bogdan Dedyk as the insured. 12 (Request for Judicial Notice Item 5.) 13 On April 22, 2016 at the hearing of my Ex Parte Motion to set Aside the default, which I 14 filed because of Les Stanford’s prospective removal of the case to federal court, I advised 15 plaintiff's son and counsel, Thomas Saberi that my client was not required to carry 16 insurance and only had a bond to secure payment of freight charges. 17 On July 15, 2016 Mr. Dedyk filede a declaration in support of a motion to set aside the 18 default taken against him that stated “After submitting the claim to my insurance broker, I 19 believed my insurance carrier was acting on my behalf.” (RFJN #4) 20 At the hearing on the motions to set aside the defaults Mr. Dombroski advised the court he 21 ‘was opposing the motions at the direction of his client, Mr. Saberi and contrary to the 22 advice he had given him. 23 Despite these readily confirmed facts and representations plaintiff filed his First Amended 24 Complaint on October 19, 2016 stating only a cause of action for negligence against BJ 25 Interstate based upon the sole faccual allegation that it had referred the business to Dedyk 26 and that Dedyk was neither licensed not insured. (FAC paras 13, 31, 31) (RFJN #7) 27 On October 22, 2016, November 22, 2016, and January 24, 2017 Bogdan Dedyk filed Case 28 Management Statements representing that it was being represented by insurers. (RFJN #s 6,8 & 9) 8 Also on January 24, 2017 Bogdan Deyk served on all parties Responses to Form Interrogatories promulgated by plaintiff Saberi stating in response to Form Interrogatory No 4.1 that on the date of loss a policy of insurance was in effect and identified the particulars of the policy called for in the form interrogatory. (Exhibit B) In a discovery / motion filed on April 16, 2018 a year and four months later, plaintiff Saberi’s counsel referred to this interrogatory response claiming “It is clear from this interrogatory response that one or more policies do, in fact, exist.” (Exhibit D attached, is true and correct.) Despite these known facts on March 7, 2017 plaintiff's son, attorney Thomas Saberi 10 prepared, and Mr. Saberi verified this response under penalty of perjury: 11 Request for Admission No 3: In September/October 2015 Dedyk, dba Safe Auto Transport 12 was named insured on a Motor Truck Cargo Policy of Insurance with a limit of 13 $250,000.00.” Even though this fact could have been easily verified on the FMCSA 14 website called to Mr. Dombroski’s attention more than a year earlier, plaintiff answered 15 that Request for Admission saying: “Responding party has made a reasonable inquiry and 16 information known and readily available is insufficient to allow Responding Party to admit W7 or deny the subject matter of the request.” Plaintiff also verified a response to Form 18 Interrogatory 17.1 identifying these responses stating he “had no personal knowledge” of 19 the fact upon which he based his response or the name of anyone who did, or any 20 documents that supported the denial. (Exhibit C) 21 10. On April 10, 2017 Bogdan Deyk served on all parties responses to these Requests For 22 Admission: 23 Request No 1: In September/October, 2015 you had been issued US DOT carrier authority 24 829905. 25 Response: Admitted 26 Request No: 3: In Septembet/October 2015 Bogdan Dedyk dba Safe Auto Transport was 27 named insured on a Motor Truck policy of insurance with a limit of $250,000.00. 28 Response: Admitted. A true and correct copy of these Requests and Responses is attached hereto as Exhibit D. 11 Assuming Mr. Sabe-i would rather dismiss than persist, I planned on securing a voluntary dismissal at or before a court-ordered mediation set for August 28, 2017. I had requested that my client, located in Arizona attend the mediation by telephone. Mr. Dombroski consented as long as BJ’s “insurance representative” was in attendance. At Mr. Saberi’s request that mediaticn was continued. 12. Due to the fact Mr. Saberi had earlier demonstrated an unwillingness to dismiss the case, I concluded that he wes approaching the litigation as a sort of war of attrition. Further, I reasoned that a party willing to lie in response to a request for admission was equally 10 willing to concoct a bogus issue of material fact to withstand a summary judgment motion. il So I opted instead to file a Motion for Judgement on the Pleadings based upon what 1 12 believed (and still beieve) to be judicially noticeable documents. That motion was set for a 3 October 20, 2017 anc. was vigorously opposed on evidentiary grounds. I did not challenge 14 the tentative ruling, believing such an effort futile. 15 13. On March 9, 2018 M-. Dedyk again stated at his deposition that on the date of loss he was 16 both licensed and insured. 17 14, Within days Mr. Dorbroski offered to dismiss Mr. Saberi’s complaint against BJ 18 Interstate provided the dismissals were mutual. I advised him that I had filed no cross 19 complaint against Mr. Saberi and intended to seek attorney fees both for lying in response 20 to requests for admission.and for pursuing a demonstrably groundless lawsuit. 21 15, The mediation was finally conducted before William Diffenderfer on March 22, 2018. Les 22 Stanford settled for $25,000.00. 2 3 16. On April 16, 2018 Mr Dombroski filed a motion to compel production against Dedyk 24 (RFIN # 10) referencing Dedyk’s Response to Form Interrogatories mentioned above and 25 identified as Exhibit B, stating “ It is clear from the interrogatory responses that one or 26 more policies, do, in fact, exist.” 27 17. On May 17, 2018 Mr. Saberi served his Amended Responses to Request for Admission 28 No. 3, a true and correct copy of which is attached as Exhibit E. Despite finally admitting he had no case, Mr. Saberi did not dismiss and soldiered on. 18. At no time did plaintiff Saberi or his counsel direct any formal discovery to my client. 19, Plaintiff Saberi did not designate an expert witness on the standard of care to be exercised by a transportation broker. 20 Two subsequent settlement conferences were conducted before Judges Foiles and Grandsaert. Nothing happend. 21 Without any further discussion with me of any kind Mr. Dombroski dismissed the case against BJ Interstate (oddly, without prejudice) on the last day before trial. 22. BJ Interstate Auto Transporters is a smal! business operated by Beverly Larson and her 10 retired husband in Sun City, Arizona. It generates only $38,000.00 annual income. I was I referred to them by a friend and fellow transportation lawyer in Scottsdale, Arizona, Gary 12 Doyle. At the outset, I assumed that once I explained the facts and the law to Mr. 13 Dombroski and advised him of how to verify what I said, he would dismiss the case 14 voluntarily. This had been my experience with other plaintiffs counsels suing brokers in 15 the past. 16 23 Attached hereto as Exhibit F are attorney fee bills for my services in this case reflecting 7 176.4 hours of time spent. Given that I never expected BJ Interstate to be able to pay me, 18 and given the fact I was always assuming plaintiff would somehow face reality and dismiss 19 BJ Interstate, some time entries are no doubt omitted. I have attached a recent curriculum 20 vitae to that Exhibit 21 24 In a Declaration filed January 17, 2017 Mr. Domroski declared his, as well as Thomas 22 Saberi’s time to be worth $350.00 an hour. (RFJN #11). 23 24 I declare under penalty of perjury under the laws of the State of California that the foregoing is . 25 true and correct. Executed at Littleton, Colorado October 9 :2018. |i‘ 26 27 (\ 28 James Attridge, Counsel for BJ Interstate (2122/2016 SquirrelMail — Subject Re: Sabieri lawsuit From: "James Attridge" Date: Mon, February 22, 2016 11:28 am To: Jdomski@aol.com Priority: Normal ok 1 Sat, February 28, 2016 2:01 pm, Jdomski@aol.com wrote: > Jim, ~ > My client is out of the country until Wednesday. I hope to get back to you > by Thursday, 2/25. Jim > > > > In a message dated 2/18/2016 11:59:27 A.M. Pacific Standard Time, > jattridge@attridgelaw.com writes: > Dear Mr. Dombrowski: > > > It was a pleasure speaking with you. I will be representing BJ > Interstate in the case you have filed on behalf of Mr. Sabieri. I am ~‘ writing to request that you voluntarily vacate the default you have + entered. As I'm sure you are well aware, motions tu sel Uefaulls aslue are routinely granted. ~, You may also wish to review the holdings in Chatelaine v. Twin Modal and Chubb v. HA Transportation 243 F. Supp 2d 1064. I will contend that my client as an interstate freight broker can only be liable for negligent entrustment, and only if it has referred the shipper to a carrier that is neither licensed nor insured. A quick check of the Federal Motor Carrier Administration website will show that the carrier was both. My address is 278 Divisadero Street, #3 San Francisco 94117, and my phone is 415-552-3688. I am looking forward to working with you. Yours truly Attachments to Declaration Omitted PLD-PI-002 ‘ATTORNEY OR PARTY WITHOUT ATTORNEY (Namo, siale bar number, and address): ‘FOR COURT USE ONLY James Attridge SBN 124003 | 270 Divisadero Street, #3 San Francisco, CA 94117 retepHone No: 415-552-3088 FAX NO. (Optional E-MAIL ADDRESS (Optional): jattridge@attridgelaw.com ATTORNEY FOR (Namo): BJ Interstate Auto Transporters, Inc. NAME OF COURT: San Mateo County Superior Court STREET ADDRESS: 400 County Center MAILING ADDRESS: CITY AND ZIP Cope: Redwood City, CA 94063 BRANCH NAME: SHORT TITLE: Saberi v. Les Stanford, et. al. CROSS-COMPLAINANT: BJ Interstate Auto Transporters, Inc! CROSS-DEFENDANT: Bogdan Dedyk, dba Safe Auto Transporters, Inc. [1] 00es 1 To CROSS-COMPLAINT—Personal Injury, Property Damage, Wrongful Death [J AMENDED (Number): Gauses of Action (check ail that apply): (1) Apportionment of Fault (J Declaratory Relief Indemnification (__] Other (specify): Jurisdiction (check all that apply): CASE NUMBER: () ACTION IS A LIMITED CIVIL CASE ($25,000 or less) 536294 ACTION IS AN UNLIMITED CIVIL CASE (exceeds $25,000) It (J is (1) is not reclassified as unlimited by this cross-complaint 4, CROSS-COMPLAINANT (name): BJ Interstate Auto Transporters, Inc. alleges causes of action against CROSS-DEFENDANT (name): Bogdan Dedyk, dba Safe Auto Transporters, Inc. 2. This pleading, including exhibits and attachments, consists of the following number of pages: 3 3. Each cross-complainant named above is a competent adult a except cross-complainant (name): BJ Interstate Auto Transporters, Inc. (1) a corporation qualified to do business in California (2) [=] an unincorporated entity (describe): (3) [) a public entity (desciribe): (4) (7) a minor 2) an adutt (a) [2] for whom a guardian or conservator of the estate or a guardian ad litern has been appointed (b) [_] other (specify): (5) ([) other (specify): C3 Information about additional cross-complainants who are not competent adults is contained in Cross-Complaint—Attachment 3. Page 1 of 3 Form Approved for Optional Use CROSS-COMPLAINT—Personal Injury, Code of Civil Procedure, § 425.12 Judicial Council of California P1002 R