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\ JAMES ATTRIDGE, SBN 124003
270 Divisadero Street, #3
San Francisco, CA 94117
415-552-3088 |
Fi TEO COUNTY
jattridge@attridgelaw.com SAN MA
Attorney for Cross-Complainant
DE 1 208
BJ Interstate Auto Transporters, Inc.
TA RZ
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SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF SAN MATEO UNLIMITED JURISDICTION
10 ANDY SABERI Case No.: CIV 536294
11 Plaintiff MEMORANDUM OF POINTS AND
AUTHORITIES IN OPPOSITION TO
12 vs.
MOTION FOR GOOD FAITH
SETTLEMENT
13 LES STANFORD CHEVROLET CADILLAC,
INC., BJ INTERSTATE AUTO
14 TRANSPORTERS, INC., and BOGDAN DATE: January 7, 2019
DEDYK dba SAFE AUTO TRANSPORT TIME: 9 AM
DEPT: 16- Courtroom 7
15 Honorable Richard DuBois
16 Defendants — _ ——
(cwsaez04
| MPAO
| | | | | i hi it
17 Memorandum of Points and Authorities in Oppc
1563847
18
19 - — -
FORWORD
20
The controlling statutes moving party Bogdan Dedyk (Dedyk) omits to recite apply to:
21
“ one or more /ortfeasors claimed to be liable for the same tort...” CCP 877 b), and “...an action
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in which it is alleged that two or more parties are joint tortfeasors...” CCP 877.6 and finally “The
23
carrier delivering the property for which the bill of lading was issued is entitled to recover from the
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carrier over whose route the loss occurred the amount required to be paid to the owner of the
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property and he amount of expenses reasonably incurred in defending a civil action.” 49 USC
26
14706 b). As outlined below the reasons for Dedyk’s omissions are obvious: his motion is
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dependent on a crabbed reading of those statutes
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INTRODUCTION
Mr. Dedyk’s motion fails as both a matter of fact and as a matter of law, both state and
federal. It is based upon the erroneous factual assumption that Dedyk and BJ Interstate Auto
Transporters, Inc. (BJ Interstate) are joint tortfeasors, but they are not, both as a matter of law and
as a matter of logic. In fact, on the date this motion was filed BJ Interstate was no longer a party
defendant at all. Nor was it when the Conditional Settlement Agreement between plaintiff Andy
Saberi and Mr. Dedyk was reached. Throughout the course of this ridiculous extortionate case Mr.
10 Dedyk has repeatedly maintained that BJ Interstate was not a tortfeasor: that it was not negligent as
ll Mr. Saberi alleged in paragraphs 13, 31 and 32 of the First Amended Complaint. (FAC) Mr. Saberi
12 finally abandoned his negligence allegation at the eleventh hour by dropping his claim against BJ
13
Interstate a few days before trial.
14
The motion also fails to grasp the nature of the Carmack amendment, the controlling statute
15
upon which BJ Interstate is entitled to attorney fees from Mr. Dedyk. The Carmack amendment is a
16
17 strict liability regime in which the party who first contracted with the owner of the damaged freight
18 is liable irrespective of fault. The amendment strictly provides at 49 USC 14706 b) that the party
19 held strictly liable as well as any innocent bystanders that get sued are due an indemnity, including
20
attorney fees, from the party that actually caused the damage. Nowhere in his motion does Mr.
21
Dedyk cite any authority addressing 49 USC 14706 b). Instead he relies on string of cases holding
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what BJ Interstate has long maintained as its defense against Mr. Saberi: that a transportation broker
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like BJ Interrstate cannot be held /iable under the Carmack amendment. Nowhere in his brief does
24
25 he cite any authority foreclosing a transportation broker from availing itself of 49 USC 14706 b).
26 At bottom, Mr. Dedyk’s motion misapprehends the Carmack amendment, treating it as if it
27 were Napoleanic Code, the literal be all and end all. It isn’t. In Missouri Pacific Railway v. Elmore
28
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and Stah 377 U.S. 134 (1964) the U.S. Supreme Court reaffirmed the Interstate Commerce
Commission interpretation that the Carmack amendment is a statutory adoption of existing (and in
some respects ancient) common law. It is by nature flexible, and courts have read it as including
legal principles not found in its text, such as enumerated carrier defenses and a four part formula
permitting carriers to limit their liability.
One of the features of this flexibility Mr. Dedyk ignores is that a transportation broker, like
BJ Interstate, can be deemed a carrier if necessary to realize the aims of the common law scheme
the statute endorses.
” Freight is like the football fielded by Cal’s Kevin Moen on the last play of the Big Game in
10 1982. It was lateraled five times among Moen, Richard Rogers, Dwight Garner, Marriet Ford and
11 finally back to Moen before ending up in the end zone where Moen ran over a Stanford tuba player.
12 The law recognizes this common fluidity among players in the supply chain. (Justice O’Connor
13 began her last opinion in Norfolk Southern Railway v. James N. Kirby 543 U.S. 14 (2004) with the
14 words “This is a maritime case about a train wreck.”
15 BJ Interstate can avail itself of the provisions of 49 USC 14706 b) because the law sees fit to
16 declare a broker as standing in the shoes of a carrier where circumstances call for it. OneBeacon
17 Insurance v. Haas Industries 634 F.3d. 1092 0" Cir. 2011), Celtic International v. J.B. Hunt
18 Transport, Inc. 234 F. Supp. 3d. 1034 (2017), Harrah v. Minnesota Mining and Manufacturing 809
19 F. Supp.2d. 313(D. N.J. 1992)
20 ARGUMENT
21 A. Dedyk’s Motion for Good Faith Settlement Fails Because Code of Civil Procedure 877.6
22 Does not Embrace the Circumstances of This Case
23
24 This plain and simply is not a circumstance CCP 877.6 was designed to address: Dedyk’s
25 employee did not T-Bone Mr. Saberi’s corvette in an intersection because he was distracted by BJ
26 Interstate prancing nude through traffic. The wrong to which Dedyk admits (scratching the corvette
27 in transit) was never part and parcel of what BJ Interstate was alleged to have done wrong: refer
28 Dedyk to Les Stanford Chevrolet from a computer in Arizona a week before the damage occurred.
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1 Dedyk Admits He Was The Sole Tortfeasor
Dedyk’s own Memorandum of Points and Authorities states this party admission right off
the bat: “During transport of the vehicle a hold down strap apparently created a small scratch on the
front bumper of the vehicle. The total cost of the repair was $3,623.54.” (Dedyk Memo p.2, lines 2-
3). Thus Dedyk is not “an allegedly more culpable tortfeasor” (Dedyk Memo p. 3, line 17) as were
the successful settlers in Far West Financial and Bay Development, Ltd. He is the only tortfeasor.
Thus CCP 877.b and 877 6) c) do him no good. Accord: Dedyk deposition p. 68, Declaration of
James Attridge, Ex. 2.
Moreover, this admission is consistent with earlier ones: 1) Dedyk’s decision not to cross-
10 complain against BJ Interstate, 2) Dedyk’s decision not to plead an affirmative defense alleging
ll fault by BJ Interstate, 3) Dedyk’s Declaration in Support of Application to Set Aside Default (RFJIN
12 #2, stating he was insured the whole time, 4) Dedyk’s Case Management Statements that state he
13 was insured, thus belying plaintiff Saberi’s only allegations against BJ Interstate at paragraphs 13,
14 31 and 32 of the First Amended Complaint (RFJN # 3). 5) Dedyk’s own deposition testimony that
15 at all times he was insured, (Attridge Declaration, para 4, Exhibit 2.)
16 2. At The Time The Conditional Settlement Was Reached Between Dedyk and Saberi, BJ
17 Interstate Had Already Been Dismissed By Saberi
18 Plaintiff Saberi dismissed BJ Interstate on October 10, 2018. (RFJN #4) The Conditional
19 Settlement between Saberi and Dedyk was not consummated until later. (Dedyk Memo, Exhibit A.)
20
Thus, the following characterization found in Dedyk’s Memorandum is flat wrong:
21
the “...agreement results in the dismissal of plaintiffs action against BJ Interstate
22 for their alleged independent negligence...BJ Interstate is a party to this action
for alleged negligence in their handling of the transaction.”
23
24 Wrong. Prior to the Saberi/Dedyk Conditional Settlement Saberi dismissed BJ Interstate
25 because he finally acknowledged what was known to everyone all along: BJ Interstate never did
26 anything wrong. It did not negligently select Dedyk because Dedyk was licensed and insured. There
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was no settlement agreement between BJ Interstate and Saberi of any kind. Saberi at long last
28
simply surrendered to the truth.
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B. Dedyk Rlies Upon Inapposite Authorities
Traffic Tech, Inc. v. Arts Transportation merely restates the holding in Exel, Inc.v, Southern
Refrigerated Transport, which did not address Section 14706 b) at all. That case involved a broker
who had paid a cargo claim and taken an assignment of the shipper’s case. Thus it is a direct
Carmack action and any language about broker standing under Carmack is pure dicta. Dedyk also
ignores the updated ruling in that case decided on September 25, 2018 in which the Sixth Circuit
found in favor of broker Exel, and undertakes an extensive Carmack analysis in so doing. No. 17-
3904 (“th Cir. 2018)
Lastly, Mason/DixonInternational v. Lapmaster International is a comical example of a
10 broker and a carrier obviously being joint tortfeasors. There, a broker dispatched a truck from the
i Port of Oakland to Fremont along I-580 where it collided with a low bridge. The same broker then
12 dispatched the same carrier along the same route resulting in the same destruction of identical cargo
13 the very next day. That isn’t what happened here.
14
15 C Dedyk’s Motion for Judgement on the Pleadings is Defective Because It Was Not Filed
16 Until After Saberi’s Case Against BJ Interstate Was Dismissed
17
18 Dedyk’s is basing his’ motion for judgment on the pleadings on a pleading that no longer
19 exists. Just as you cannot demur to a cause of action that has been voluntarily dismissed, logic
20 dictates that you cannot file a motion for judgment on the pleadings when the only cause of action
21 pleaded against the targeted party has been dismissed. At the time this motion was filed two
22 pleadings remained for the court’s consideration: 1) Saberi’s First Amended Complaint against
23 Dedyk, and 2) BJ Interstate’s Cross-Complaint for Indemnity against Dedyk. Saberi’s complaint
24 against BJ Interstate no longer existed, and it is the pleading thats allegations underpin this moton.
25 There is no such thing as a “Motion for Judgment on What Used to Be A Pleading.”
26
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D. Cargo Loss Actions Sound in Contract. They Are Not Torts.
Carmack amendment claims sound in contract because they are based on breach of duties
specified in the bill of lading contract. Pacific Indemnity Co v. Atlas Van Lines, Inc. 642 F. 3d. 702,
707, (9" Cir. 2011), White v. Mayflower Transit, 543 F. 3d. 581, 584 ( 9th Cir. 2008), North
American Van Lines v. Pinkerton Security Systems 89 F. 3d. 452, 457-459 (7" Cir. 1996).
Therefore, BJ Interstate couldn’t possibly be a joint tortfeasor because Dedyk never was a tortfeasor
either.
10 E. Dedyk’s Motion for Judgment on the Pleadings Swings at the Wrong Pitch: It
11 Erroneously Attempts to Conflate a Broker’s Immunity From Cargo Loss Under Carmack With Its
12 Independent Right to Seek Indemnity Under 49 USC 14706 b)
13
14 Admittedly, the Carmack amendment is an odd duck. A brief history lesson is in order to
15 explain why.
16 People have been carrying freight on their backs or on beasts of burden since mankind began
17 living in even the most primitive of ordered societies: even prior to the invention of the wheel itself.
18
Section 103 of The Code of Hammurabi, issued 500 years before Moses descended Mount Sinai
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deals with liability for cargo loss. Section 258 deals with a carrier’s entitlement to freight charges.
20
King, L.W. (trans.) The Code of Hammurabi, Lillian Goldman Library, Yale University Avalon
21
.law.edu (1776 B.C.) Published opinions from England defining the common law of freight loss
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23 include Bastard v. Bastard 2 Shower 81(1679) (no kidding) and Lane v. Cotton 12. Mod. 472,
24 1701). Oliver Wendell Holmes wrote in 1879 that:
25 The common carrier’s strict liability for loss of goods can be
26 traced to the origin of the general law of bailments... These old
laws gave a remedy against thieves, not to the bailor, but to the
27 bailee, who in turn had to respond for loss without possibility
28 of excluding liability.
Holmes, Oliver Wendell: Common Carriers and the Common Law, 13 Am. Law Revie (1879)
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The California Court of Appeals has acknowledged the modern law of freight loss and
damage has its roots in these ancient principles. Convey-All v. Pacific Intermountain Express 120
Cal. App. 2d .116 (1981). Congress never exercised its power to regulate interstate commerce until
passage of the Interstate Commerce Act in 1887, leaving it to state courts to fashion a common law
that addressed the brave new world wrought by the railroads. In 1857 the Illinois Supreme Court
ruled that railroads could limit their liability by contract, giving a win to a lawyer named Abraham
Lincoln. Illinois Central Railroad v. Morrison and Crabtree 19 Ill. 136 (1857. But in 1886 the
Supreme Court ruled that states had no power to regulate interstate commerce and dropped a broad
10 hint that Congress might want to exercise its powers under the Commerce Clause. Wabash, St.
i
Louis & Pacific Railway v. Illinois 118 U.S. 557 (1886). The Interstate Commerce Act was passed
12
a year later, but did not deal with cargo loss and damage. So the Supreme Court dropped another
13
hint in 1904 in Pennsylvania Railroad v. Hughes 191 U.S. 47, 491 (1904), which led to the
14
15
enactment of the Carmack amendment in 1906.
16 The conference committee report explaining the purpose behind Amendment 47 (renamed a
17 few years later after Carmack’s assassination) says:
18 « We have made the initial carrier, the carrier that takes and receives
19 the shipment, responsible for the loss of the article in the way of damages...
Why? The reasons inducing us to do that was (sic) that the initial carrier has
20 a through route connection with the secondary carrier, on whose route the
21 loss occurred, and a settlement between them would be an easy matter,
while the shipper would be at heavy expense in the institution of a suit.
22 If a judgment is obtained against the initial carrier, no doubt exists but that
23 the secondary carrier would pay it at once. Why? Because the
arrangement, the concert, the cooperation, the through route courtesies
24 between them would be broken up if prompt payment was not made.”
25
40 Cong. 9579, 9580, June 28, 1906.
26
In Adams Express v. Croninger 226 U.S. 491 (1913) the Supreme Court acknowledged that
27
prior to the passage of Carmack the law was literally all over the map. “Some states allow carriers
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to exempt themselves from all or part of common law liability by rule, regulation or contract.
Others do not.” It also held that the creation of a uniform federal common law was “doubtless the
purpose of the law.” Id. p. 505
In 1919, the Interstate Commerce Commission took it upon itself in In Re: Bills of Lading
52 ICC 679 (1919) to draft a Uniform Domestic Straight Bill of Lading that incorporated numerous
provisions based upon common law precedents. The Supreme Court upheld its right to do so and
relying on Jn Re: Bills of Lading declared the Carmack amendment an endorsement of common law
principles not found in its text:
10 “The statute codifies the common law rule that a carrier, though not an absolute insurer is
i liable for damage to goods transported unless it can show a) act of God, b) public enemy, c) ct of
the shipper itself, d) public authority, or e) the inherent vice or nature of the goods. And that the
12 burden of proof was also on the carrier to show that it was free from negligence... The Amendment
13 must be read in conjunction with certain common law rules which it has been held to have
codified.”
14 Missouri Pacific Railway v. Elmore and Stahl, supra, p 137.
15
Courts have also held, in agreement with Lincoln, that carriers have a right to limit their
16
liability and have crafted a four-part test nowhere found in the Carmack amendment. Hughes v.
17
United Van Lines 970 F.3d. 630 (9" Cir. 1992), OneBeacon Insurance Co. v. Haas Industries, 634
18
19 F.3d. 1092 (9" Cr. 2011)
20 This history makes two things clear: 1) Courts are free to stray from the wording of the
21 Carmack amendment in order to realize its purposes, and 2) one of the purposes of Carmack is to
22
make the party that is at actual fault indemnify parties that are either strictly liable for a loss they
23
did not cause, or like BJ Interstate, were never liable in the first place.
24
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26 F. The Case Law is Clear that Courts Can Reclassify Brokers as Carriers to Achieve the
27 Purposes of the Amendment.
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In Chubb Group of Insurance Companies v. H.A. Transportation, inadvertently cited by
Dedyk, the court recognized that brokers can be reclassified as carriers if, for instance, they held
themselves out to the public as providing the kind of service carriers normally provided. REI
Transport, also called to the attention of the court by Dedyk, holds that the Carmack term “...
“person entitled to recover” is fluid, and has been applied to brokers seeking relief pursuant to the
Carmack Amendment.” Jd. at 700. These cases are all consistent with the rulings in OneBeacon,
Celtic International, and Harrah, supra. where brokers were deemed to stand in the shoes of a
carrier where justice as well as the facts of the case call for it.
10
ll
CONCLUSION
12
As a matter of law, Dedyk was never a tortfeasor because Carmack amendment cases do not
13
sound in tort. As a matter of fact, BJ Interstate was not a tortfeasor because it never committed a
14
15
tort. Dedyk has not only admitted this throughout the course of this case, it has advocated on behalf
16 of BJ Interstate on the point. As a matter of procedure, BJ Interstate is not a tortfeasor because
17 Saberi abandoned its fanciful notion that it was. The history of the Carmack amendment and
18 controlling authority all support this simple rule of equitable justice: The guy who did it has to
19
indemnify the guy who didn’t, yet still had to spend money to prove that (or in this case sweat out a
20
bogus lawsuit.) Though the damage was only a scratch that could be repaired for less than
21
$4,000.00, the operative fact is immutable: Dedyk is the guy who admittedly did it.
22
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24 December 20, 2018
25 James Attridge
26
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Preview
hoe \ JAMES ATTRIDGE, SBN 124003 270 Divisadero Street, #3 San Francisco, CA 94117 415-552-3088 | Fi TEO COUNTY jattridge@attridgelaw.com SAN MA Attorney for Cross-Complainant DE 1 208 BJ Interstate Auto Transporters, Inc. TA RZ / ey for? U / NBEre SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SAN MATEO UNLIMITED JURISDICTION 10 ANDY SABERI Case No.: CIV 536294 11 Plaintiff MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO 12 vs. MOTION FOR GOOD FAITH SETTLEMENT 13 LES STANFORD CHEVROLET CADILLAC, INC., BJ INTERSTATE AUTO 14 TRANSPORTERS, INC., and BOGDAN DATE: January 7, 2019 DEDYK dba SAFE AUTO TRANSPORT TIME: 9 AM DEPT: 16- Courtroom 7 15 Honorable Richard DuBois 16 Defendants — _ —— (cwsaez04 | MPAO | | | | | i hi it 17 Memorandum of Points and Authorities in Oppc 1563847 18 19 - — - FORWORD 20 The controlling statutes moving party Bogdan Dedyk (Dedyk) omits to recite apply to: 21 “ one or more /ortfeasors claimed to be liable for the same tort...” CCP 877 b), and “...an action 22 in which it is alleged that two or more parties are joint tortfeasors...” CCP 877.6 and finally “The 23 carrier delivering the property for which the bill of lading was issued is entitled to recover from the 24 carrier over whose route the loss occurred the amount required to be paid to the owner of the 25 property and he amount of expenses reasonably incurred in defending a civil action.” 49 USC 26 14706 b). As outlined below the reasons for Dedyk’s omissions are obvious: his motion is 27 dependent on a crabbed reading of those statutes 28 -1- INSERT DOCUMENT TITLE (¢.g., MOTION TO STRIKE) we aee 4 wes ve owt wh INTRODUCTION Mr. Dedyk’s motion fails as both a matter of fact and as a matter of law, both state and federal. It is based upon the erroneous factual assumption that Dedyk and BJ Interstate Auto Transporters, Inc. (BJ Interstate) are joint tortfeasors, but they are not, both as a matter of law and as a matter of logic. In fact, on the date this motion was filed BJ Interstate was no longer a party defendant at all. Nor was it when the Conditional Settlement Agreement between plaintiff Andy Saberi and Mr. Dedyk was reached. Throughout the course of this ridiculous extortionate case Mr. 10 Dedyk has repeatedly maintained that BJ Interstate was not a tortfeasor: that it was not negligent as ll Mr. Saberi alleged in paragraphs 13, 31 and 32 of the First Amended Complaint. (FAC) Mr. Saberi 12 finally abandoned his negligence allegation at the eleventh hour by dropping his claim against BJ 13 Interstate a few days before trial. 14 The motion also fails to grasp the nature of the Carmack amendment, the controlling statute 15 upon which BJ Interstate is entitled to attorney fees from Mr. Dedyk. The Carmack amendment is a 16 17 strict liability regime in which the party who first contracted with the owner of the damaged freight 18 is liable irrespective of fault. The amendment strictly provides at 49 USC 14706 b) that the party 19 held strictly liable as well as any innocent bystanders that get sued are due an indemnity, including 20 attorney fees, from the party that actually caused the damage. Nowhere in his motion does Mr. 21 Dedyk cite any authority addressing 49 USC 14706 b). Instead he relies on string of cases holding 22 what BJ Interstate has long maintained as its defense against Mr. Saberi: that a transportation broker 23 like BJ Interrstate cannot be held /iable under the Carmack amendment. Nowhere in his brief does 24 25 he cite any authority foreclosing a transportation broker from availing itself of 49 USC 14706 b). 26 At bottom, Mr. Dedyk’s motion misapprehends the Carmack amendment, treating it as if it 27 were Napoleanic Code, the literal be all and end all. It isn’t. In Missouri Pacific Railway v. Elmore 28 -2- INSERT DOCUMENT TITLE (¢.g., MOTION TO STRIKE) and Stah 377 U.S. 134 (1964) the U.S. Supreme Court reaffirmed the Interstate Commerce Commission interpretation that the Carmack amendment is a statutory adoption of existing (and in some respects ancient) common law. It is by nature flexible, and courts have read it as including legal principles not found in its text, such as enumerated carrier defenses and a four part formula permitting carriers to limit their liability. One of the features of this flexibility Mr. Dedyk ignores is that a transportation broker, like BJ Interstate, can be deemed a carrier if necessary to realize the aims of the common law scheme the statute endorses. ” Freight is like the football fielded by Cal’s Kevin Moen on the last play of the Big Game in 10 1982. It was lateraled five times among Moen, Richard Rogers, Dwight Garner, Marriet Ford and 11 finally back to Moen before ending up in the end zone where Moen ran over a Stanford tuba player. 12 The law recognizes this common fluidity among players in the supply chain. (Justice O’Connor 13 began her last opinion in Norfolk Southern Railway v. James N. Kirby 543 U.S. 14 (2004) with the 14 words “This is a maritime case about a train wreck.” 15 BJ Interstate can avail itself of the provisions of 49 USC 14706 b) because the law sees fit to 16 declare a broker as standing in the shoes of a carrier where circumstances call for it. OneBeacon 17 Insurance v. Haas Industries 634 F.3d. 1092 0" Cir. 2011), Celtic International v. J.B. Hunt 18 Transport, Inc. 234 F. Supp. 3d. 1034 (2017), Harrah v. Minnesota Mining and Manufacturing 809 19 F. Supp.2d. 313(D. N.J. 1992) 20 ARGUMENT 21 A. Dedyk’s Motion for Good Faith Settlement Fails Because Code of Civil Procedure 877.6 22 Does not Embrace the Circumstances of This Case 23 24 This plain and simply is not a circumstance CCP 877.6 was designed to address: Dedyk’s 25 employee did not T-Bone Mr. Saberi’s corvette in an intersection because he was distracted by BJ 26 Interstate prancing nude through traffic. The wrong to which Dedyk admits (scratching the corvette 27 in transit) was never part and parcel of what BJ Interstate was alleged to have done wrong: refer 28 Dedyk to Les Stanford Chevrolet from a computer in Arizona a week before the damage occurred. -2- INSERT DOCUMENT TITLE (¢.g., MOTION TO STRIKE) 1 Dedyk Admits He Was The Sole Tortfeasor Dedyk’s own Memorandum of Points and Authorities states this party admission right off the bat: “During transport of the vehicle a hold down strap apparently created a small scratch on the front bumper of the vehicle. The total cost of the repair was $3,623.54.” (Dedyk Memo p.2, lines 2- 3). Thus Dedyk is not “an allegedly more culpable tortfeasor” (Dedyk Memo p. 3, line 17) as were the successful settlers in Far West Financial and Bay Development, Ltd. He is the only tortfeasor. Thus CCP 877.b and 877 6) c) do him no good. Accord: Dedyk deposition p. 68, Declaration of James Attridge, Ex. 2. Moreover, this admission is consistent with earlier ones: 1) Dedyk’s decision not to cross- 10 complain against BJ Interstate, 2) Dedyk’s decision not to plead an affirmative defense alleging ll fault by BJ Interstate, 3) Dedyk’s Declaration in Support of Application to Set Aside Default (RFJIN 12 #2, stating he was insured the whole time, 4) Dedyk’s Case Management Statements that state he 13 was insured, thus belying plaintiff Saberi’s only allegations against BJ Interstate at paragraphs 13, 14 31 and 32 of the First Amended Complaint (RFJN # 3). 5) Dedyk’s own deposition testimony that 15 at all times he was insured, (Attridge Declaration, para 4, Exhibit 2.) 16 2. At The Time The Conditional Settlement Was Reached Between Dedyk and Saberi, BJ 17 Interstate Had Already Been Dismissed By Saberi 18 Plaintiff Saberi dismissed BJ Interstate on October 10, 2018. (RFJN #4) The Conditional 19 Settlement between Saberi and Dedyk was not consummated until later. (Dedyk Memo, Exhibit A.) 20 Thus, the following characterization found in Dedyk’s Memorandum is flat wrong: 21 the “...agreement results in the dismissal of plaintiffs action against BJ Interstate 22 for their alleged independent negligence...BJ Interstate is a party to this action for alleged negligence in their handling of the transaction.” 23 24 Wrong. Prior to the Saberi/Dedyk Conditional Settlement Saberi dismissed BJ Interstate 25 because he finally acknowledged what was known to everyone all along: BJ Interstate never did 26 anything wrong. It did not negligently select Dedyk because Dedyk was licensed and insured. There 27 was no settlement agreement between BJ Interstate and Saberi of any kind. Saberi at long last 28 simply surrendered to the truth. -4- INSERT DOCUMENT TITLE (¢.g., MOTION TO STRIKE) B. Dedyk Rlies Upon Inapposite Authorities Traffic Tech, Inc. v. Arts Transportation merely restates the holding in Exel, Inc.v, Southern Refrigerated Transport, which did not address Section 14706 b) at all. That case involved a broker who had paid a cargo claim and taken an assignment of the shipper’s case. Thus it is a direct Carmack action and any language about broker standing under Carmack is pure dicta. Dedyk also ignores the updated ruling in that case decided on September 25, 2018 in which the Sixth Circuit found in favor of broker Exel, and undertakes an extensive Carmack analysis in so doing. No. 17- 3904 (“th Cir. 2018) Lastly, Mason/DixonInternational v. Lapmaster International is a comical example of a 10 broker and a carrier obviously being joint tortfeasors. There, a broker dispatched a truck from the i Port of Oakland to Fremont along I-580 where it collided with a low bridge. The same broker then 12 dispatched the same carrier along the same route resulting in the same destruction of identical cargo 13 the very next day. That isn’t what happened here. 14 15 C Dedyk’s Motion for Judgement on the Pleadings is Defective Because It Was Not Filed 16 Until After Saberi’s Case Against BJ Interstate Was Dismissed 17 18 Dedyk’s is basing his’ motion for judgment on the pleadings on a pleading that no longer 19 exists. Just as you cannot demur to a cause of action that has been voluntarily dismissed, logic 20 dictates that you cannot file a motion for judgment on the pleadings when the only cause of action 21 pleaded against the targeted party has been dismissed. At the time this motion was filed two 22 pleadings remained for the court’s consideration: 1) Saberi’s First Amended Complaint against 23 Dedyk, and 2) BJ Interstate’s Cross-Complaint for Indemnity against Dedyk. Saberi’s complaint 24 against BJ Interstate no longer existed, and it is the pleading thats allegations underpin this moton. 25 There is no such thing as a “Motion for Judgment on What Used to Be A Pleading.” 26 27 28 -5- INSERT DOCUMENT TITLE (¢.g., MOTION TO STRIKE) D. Cargo Loss Actions Sound in Contract. They Are Not Torts. Carmack amendment claims sound in contract because they are based on breach of duties specified in the bill of lading contract. Pacific Indemnity Co v. Atlas Van Lines, Inc. 642 F. 3d. 702, 707, (9" Cir. 2011), White v. Mayflower Transit, 543 F. 3d. 581, 584 ( 9th Cir. 2008), North American Van Lines v. Pinkerton Security Systems 89 F. 3d. 452, 457-459 (7" Cir. 1996). Therefore, BJ Interstate couldn’t possibly be a joint tortfeasor because Dedyk never was a tortfeasor either. 10 E. Dedyk’s Motion for Judgment on the Pleadings Swings at the Wrong Pitch: It 11 Erroneously Attempts to Conflate a Broker’s Immunity From Cargo Loss Under Carmack With Its 12 Independent Right to Seek Indemnity Under 49 USC 14706 b) 13 14 Admittedly, the Carmack amendment is an odd duck. A brief history lesson is in order to 15 explain why. 16 People have been carrying freight on their backs or on beasts of burden since mankind began 17 living in even the most primitive of ordered societies: even prior to the invention of the wheel itself. 18 Section 103 of The Code of Hammurabi, issued 500 years before Moses descended Mount Sinai 19 deals with liability for cargo loss. Section 258 deals with a carrier’s entitlement to freight charges. 20 King, L.W. (trans.) The Code of Hammurabi, Lillian Goldman Library, Yale University Avalon 21 .law.edu (1776 B.C.) Published opinions from England defining the common law of freight loss 22 23 include Bastard v. Bastard 2 Shower 81(1679) (no kidding) and Lane v. Cotton 12. Mod. 472, 24 1701). Oliver Wendell Holmes wrote in 1879 that: 25 The common carrier’s strict liability for loss of goods can be 26 traced to the origin of the general law of bailments... These old laws gave a remedy against thieves, not to the bailor, but to the 27 bailee, who in turn had to respond for loss without possibility 28 of excluding liability. Holmes, Oliver Wendell: Common Carriers and the Common Law, 13 Am. Law Revie (1879) ~6- INSERT DOCUMENT TITLE (¢.g., MOTION TO STRIKE) The California Court of Appeals has acknowledged the modern law of freight loss and damage has its roots in these ancient principles. Convey-All v. Pacific Intermountain Express 120 Cal. App. 2d .116 (1981). Congress never exercised its power to regulate interstate commerce until passage of the Interstate Commerce Act in 1887, leaving it to state courts to fashion a common law that addressed the brave new world wrought by the railroads. In 1857 the Illinois Supreme Court ruled that railroads could limit their liability by contract, giving a win to a lawyer named Abraham Lincoln. Illinois Central Railroad v. Morrison and Crabtree 19 Ill. 136 (1857. But in 1886 the Supreme Court ruled that states had no power to regulate interstate commerce and dropped a broad 10 hint that Congress might want to exercise its powers under the Commerce Clause. Wabash, St. i Louis & Pacific Railway v. Illinois 118 U.S. 557 (1886). The Interstate Commerce Act was passed 12 a year later, but did not deal with cargo loss and damage. So the Supreme Court dropped another 13 hint in 1904 in Pennsylvania Railroad v. Hughes 191 U.S. 47, 491 (1904), which led to the 14 15 enactment of the Carmack amendment in 1906. 16 The conference committee report explaining the purpose behind Amendment 47 (renamed a 17 few years later after Carmack’s assassination) says: 18 « We have made the initial carrier, the carrier that takes and receives 19 the shipment, responsible for the loss of the article in the way of damages... Why? The reasons inducing us to do that was (sic) that the initial carrier has 20 a through route connection with the secondary carrier, on whose route the 21 loss occurred, and a settlement between them would be an easy matter, while the shipper would be at heavy expense in the institution of a suit. 22 If a judgment is obtained against the initial carrier, no doubt exists but that 23 the secondary carrier would pay it at once. Why? Because the arrangement, the concert, the cooperation, the through route courtesies 24 between them would be broken up if prompt payment was not made.” 25 40 Cong. 9579, 9580, June 28, 1906. 26 In Adams Express v. Croninger 226 U.S. 491 (1913) the Supreme Court acknowledged that 27 prior to the passage of Carmack the law was literally all over the map. “Some states allow carriers 28 -7- INSERT DOCUMENT TITLE (¢.g., MOTION TO STRIKE) to exempt themselves from all or part of common law liability by rule, regulation or contract. Others do not.” It also held that the creation of a uniform federal common law was “doubtless the purpose of the law.” Id. p. 505 In 1919, the Interstate Commerce Commission took it upon itself in In Re: Bills of Lading 52 ICC 679 (1919) to draft a Uniform Domestic Straight Bill of Lading that incorporated numerous provisions based upon common law precedents. The Supreme Court upheld its right to do so and relying on Jn Re: Bills of Lading declared the Carmack amendment an endorsement of common law principles not found in its text: 10 “The statute codifies the common law rule that a carrier, though not an absolute insurer is i liable for damage to goods transported unless it can show a) act of God, b) public enemy, c) ct of the shipper itself, d) public authority, or e) the inherent vice or nature of the goods. And that the 12 burden of proof was also on the carrier to show that it was free from negligence... The Amendment 13 must be read in conjunction with certain common law rules which it has been held to have codified.” 14 Missouri Pacific Railway v. Elmore and Stahl, supra, p 137. 15 Courts have also held, in agreement with Lincoln, that carriers have a right to limit their 16 liability and have crafted a four-part test nowhere found in the Carmack amendment. Hughes v. 17 United Van Lines 970 F.3d. 630 (9" Cir. 1992), OneBeacon Insurance Co. v. Haas Industries, 634 18 19 F.3d. 1092 (9" Cr. 2011) 20 This history makes two things clear: 1) Courts are free to stray from the wording of the 21 Carmack amendment in order to realize its purposes, and 2) one of the purposes of Carmack is to 22 make the party that is at actual fault indemnify parties that are either strictly liable for a loss they 23 did not cause, or like BJ Interstate, were never liable in the first place. 24 25 26 F. The Case Law is Clear that Courts Can Reclassify Brokers as Carriers to Achieve the 27 Purposes of the Amendment. 28 -8- INSERT DOCUMENT TITLE (e.g., MOTION TO STRIKE) In Chubb Group of Insurance Companies v. H.A. Transportation, inadvertently cited by Dedyk, the court recognized that brokers can be reclassified as carriers if, for instance, they held themselves out to the public as providing the kind of service carriers normally provided. REI Transport, also called to the attention of the court by Dedyk, holds that the Carmack term “... “person entitled to recover” is fluid, and has been applied to brokers seeking relief pursuant to the Carmack Amendment.” Jd. at 700. These cases are all consistent with the rulings in OneBeacon, Celtic International, and Harrah, supra. where brokers were deemed to stand in the shoes of a carrier where justice as well as the facts of the case call for it. 10 ll CONCLUSION 12 As a matter of law, Dedyk was never a tortfeasor because Carmack amendment cases do not 13 sound in tort. As a matter of fact, BJ Interstate was not a tortfeasor because it never committed a 14 15 tort. Dedyk has not only admitted this throughout the course of this case, it has advocated on behalf 16 of BJ Interstate on the point. As a matter of procedure, BJ Interstate is not a tortfeasor because 17 Saberi abandoned its fanciful notion that it was. The history of the Carmack amendment and 18 controlling authority all support this simple rule of equitable justice: The guy who did it has to 19 indemnify the guy who didn’t, yet still had to spend money to prove that (or in this case sweat out a 20 bogus lawsuit.) Though the damage was only a scratch that could be repaired for less than 21 $4,000.00, the operative fact is immutable: Dedyk is the guy who admittedly did it. 22 23 24 December 20, 2018 25 James Attridge 26 27 28 -9- INSERT DOCUMENT TITLE (¢.g., MOTION TO STRIKE)