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Ian R. Feldman (State Bar No. 200308)
CLAUSEN MILLER P.C.
17901 Von Karman Avenue, Suite 650 FILED
Irvine, CA 92614 SAN MATFU OOUNTY
Telephone 949-260-3100 AUG
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Attorneys for Defendant
SOUTH SAN FRANCISCO SCAVENGER CO., INC.
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF SAN MATEO
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Plaintiff, DEFENDANT SOUTH SAN
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INC.’S NOTICE OF MOTION AND
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SOUTH SAN FRANCISCO SCAVENGER
MOTION FOR RECLASSIFICATION
OF ACTION TO LIMITED
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CO., INC.; and DOES 1 through 100,
inclusive,
JURISDICTION UNDER C.C.P.
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SECTION 403.040; MEMORANDUM
Defehdantsl OF POINTS AND AUTHORITIES IN
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SUPPORT THEREOF; I
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Judicial Notice; and Proposed Order]
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Date: September I[ 2018
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Time: 9:00 am.
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Action Filed: January 16, 2018
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Trial Date: None set
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TO THIS HONORABLE COURT, TO PLAINTIFF KWOK M. CHING AND TO HER
N 0\ ATTORNEY OF RECORD:
N \1 PLEASE TAKE NOTICE that on September 69, 2018 at 9:00 am, or as soon thereafter
N 00 as the matter may be heard in the Law & Motion Department of the above-entitled court
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NOTICE OF MOTION AND MOTION FOR RECLASSIFICATION OF ACTION (LIMITED JURISDICTION)
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Ian R. Feldman (State Bar No. 200308)
CLAUSEN MILLER PO
17901 Von Karman Avenue, Suite 650
Irvine, CA 92614
Telephone 949-260-3100
FAX
Facsimile 949-260-3190
BY \OOOQONLJ‘I-DUJN
Attorneys for Defendant
SOUTH SAN FRANCISCO SCAVENGER CO., INC.
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF SAN MATEO
KWOK M. CHING, Case No. 18CIV00221
Plaintiff, DEFENDANT SOUTH SAN
FRANCISCO SCAVENGER C0.,
VS'
INC.’S NOTICE OF MOTION AND
SOUTH SAN FRANCISCO SCAVENGER
MOTION FOR RECLASSIFICATION
OF ACTION TO LIMITED
CO., INC.; and DOES I through 100,
inclusive,
JURISDICTION UNDER C.C.P.
SECTION 403.040; MEMORANDUM
Defendants. OF POINTS AND AUTHORITIES IN
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SUPPORT THEREOF;
DECLARATION OF IAN R. FELDMAN
[Filed concurrently herewith Request for
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Judicial Notice; and Proposed Order]
Date: September {I 2018
Time: 9:00 am.
Dept: LM
Action Filed: January 16, 2018
Trial Date: None set
TO THIS HONORABLE COURT, TO PLAINTIFF KWOK M. CHING AND TO HER
ATTORNEY OF RECORD:
PLEASE TAKE NOTICE that on September 6, 2018 at 9:00 am, or as soon thereafter
as the matter may be heard in the Law & Motion Department of the above-entitled court
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NOTICE OF MOTION AND MOTION FOR RECLASSIFICATION OF ACTION (LIMITED JURISDICTION)
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located at 400 County Center, in Redwood City, California, Defendant SOUTH SAN
FRANCISCO SCAVENGER CO., INC. (“SSFSC”) will and hereby does move for an Order
reclassifying this action as a limited jurisdiction civil case under Code of Civil Procedure
§403.040 because the amount in controversy does not exceed $25,000 in this straightforward
claim for property damage from a motor vehicle incident.
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This Motion is based on this Notice and Motion, the attached Memorandum of Points
and Authorities, the Request for Judicial Notice, the Declaration of Ian R. Feldman, on all oral
and documentary evidence presented at the hearing on this Motion and on all papers, records
and pleadings on file in this matter.
DATED: August 8, 2018 CLAUSEN MILLER P.C.
Ian R. Feldlnan
Meredith D. Stewart
Attorneys for Defendant
SOUTH SAN FRANCISCO SCAVENGER CO.,
INC.
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NOTICE OF MOTION AND MOTION FOR RECLASSIFICATION OF ACTION (LIMITED JURISDICTION)
MEMORANDUM OF POINTS AND AUTHORITIES
I. INTRODUCTION
This matter arises out of a relatively straightforward fender-bender incident in Millbrae,
California. Plaintiff alleges that the Defendant’s truck struck Plaintiffs vehicle during a
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routine trash pickup.
On January 16, 2018, Plaintiff filed this matter as an “Unlimited Civil Case.” See RJN,
Ex. “1 .”). This “kitchen-sink” complaint seeks property damages arising from a minor motor
vehicle incident that occurred on October 11,2017. There is no bodily injury damages alleged.
Nevertheless, Plaintiff‘s FAC contains allegations and a prayer for punitive damages and a
cause of action for violation of Business & Professions Code Section 17200, which are
currently the subject of a demurrer and motion to strike on August 24, 2018.
Plaintiff’s verified discovery responses, specifically an estimate of damage from a
repair shop show that the alleged property damage to her vehicle to be $12,334.56. Declaration
of Ian R. Feldman, (“Feldman Decl.”) 114, see also Ex. “A” at bates P6-P10. Amazingly,
Plaintiff and her counsel somehow failed to provide a response to Form Interrogatories 7.0,
8.0 and 9.0, which seeks information regarding the damages sustained. Feldman Decl, 115, see
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also Ex. “B.”
Further, the Plaintiff’ 3 claim for punitive damages should be seen for what it is — an
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overreaching attempt to continue to harass and increase the costs of litigation. Specifically,
the driver of the truck testified that during this pickup, he had not seen Plaintiff‘s vehicle enter
into the court even as he was exiting and properly looking in all of his rear view mirrors and
cameras. Feldman Decl., 116 and Ex. “C” at pp. 73:20-75:10 and 81:1—17.
II. THIS CASE SHOULD BE CLASSIFIED AS A LIMITED CIVIL CASE
“Limited civil cases” are “cases at law in which the demand, exclusive of interest, or
the value of the property in controversy amounts to twenty-five thousand dollars ($25,000) or
less.” California Code of Civil Procedure section 86(a)(l). “Unlimited civil cases” are cases
in which the demand, exclusive of interest, is over $25,000. California Code of Civil
Procedure §88.
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MEMORANDUM OF POINTS AND AUTHORITIES
Whether an action qualifies as a limited or unlimited civil action is determined initially
from the prayer or demand for relief in the plaintiff’s complaint. Once classified as limited or
unlimited that classification normally continues throughout the litigation. If, however, a matter
has been designated as an unlimited action, and yet the amount of controversy is $25,000 or
less, the statutory scheme authorizes “reclassification” of the case as a “limited” action and
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transfer of the matter to a superior court presiding over such actions. California Code of Civil
Procedure §403.040(a); see also Ytuarte v. Superior Court (2005) 129 Cal.App.4th 266, 272.
III. A COURT MAY GRANT A MOTION FOR RECLASSIFICATION WHERE
THE CASE IS INCORRECTLY CLASSIFIED AND THE MOVING PARTY
SHOWS GOOD CAUSE FOR NOT SEEKING RECLASSIFICATION
EARLIER
If a party files a motion for reclassification after the time for that party to amend or
respond to a complaint, cross-complaint, or other initial pleading, the court shall grant the
motion and enter an order for reclassification only if both of the following conditions are
satisfied:
(1) The case is incorrectly classified.
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(2) The moving party shows good cause for not seeking
reclassification earlier.
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Code Civ. Proc. §403.040(b)(l)-(2) (emphasis added).
An action or special proceeding shall be treated as a limited civil
case if all ofthe following conditions are satisfied: . . .
(a) The amount in controversy does not exceed twenty-five
thousand dollars ($25,000).
(b) The relief sought is a type that may be granted in a limited
civil case.
(0) The relief sought, whether in the complaint, a cross—
complaint, or otherwise, is exclusively of a type described in one
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MEMORANDUM OF POINTS AND AUTHORITIES
or more statutes that classify an action or special proceeding as a
limited civil case or that provide that an action or special
#WN proceeding is within the original jurisdiction of the municipal
court, [including, but not limited to 22 specific statutory
provisions].
Code Civ. Proc. §§85(a) to (c), 86.
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Thus, a matter may be reclassified as a limited civil action “when during the course
of pretrial litigation, it becomes clear that the matter will ‘necessarily’ result in a verdict below
[$25,000.01].” Walker v. Superior Court (1991) 53 Cal.3d 257, 262. “This standard involves
10 an evaluation of the amount fairly in controversy, not an adjudication of the merits of the claim,
11 and requires a ‘high level of certainly that [the] damage award will not exceed $25,000.”
12 Eagle, 129 Cal.App.4th at 276 quoting Mgr, 53 Cal.3d at 269.
13 Here, based on Plaintiff’s own verified discovery responses, there is a high level of
14 certainty that the damage award will not exceed $25,000 for this straightforward and relatively
15 minor property damage claim.
16 IV. THIS ACTION WAS INCORRECTLY CLASSIFIED AS AN UNLIMITED
17 CIVIL ACTION
18 To reclassify an action because it does not meet the jurisdictional amount involves
19 evaluation of the amount fairly in controversy, not an evaluation of the merits of the claim; the
2o trial court must reasonably determine that the verdict will “necessarily” fall short of the
21 $25,001 required for an unlimited civil case. Stern v. Superior Court (2003) 105 Cal. App. 4th
22 223.
23 An action can be reclassified as a limited civil case where the claim necessarily involves
24 no more than $25,000. Under this test, the inability to recover more than $25,000 must be
25 established to a legal certainty, i.e., it must be shown that a monetary award of more than
26 $25,000 is “virtually unattainable.” Walker v. Superior Court (1991) 53 Cal. 3d 257, 269, 279
27 (test for jurisdictional transfers from superior to municipal court under prior law).
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MEMORANDUM OF POINTS AND AUTHORITIES
As stated in the Declaration of Ian R. Feldman submitted herewith, this is a relatively
minor property damage case of disputed liability. Plaintiff’s property damage does not exceed
the limited civil jurisdiction.
V. GOOD CAUSE EXISTS FOR MOVING PARTY NOT SEEKING
RECLASSIFICATION EARLIER
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Code of Civil Procedure §403.040(b) specifies that where a motion for reclassification
is made after the time within which to amend or respond to an initial pleading, the court shall
grant the motion where the moving party shows good cause for not seeking reclassification
earlier. Code Civ. Proc. §403.040(b).
1o Here, Plaintiff’s own verified discovery responses, served on July 31, 2018 substantiate
11 that there is a high level of certainty that the damage award will not exceed $25,000 for this
12 property damage claim. Therefore, good cause exists for the Court to grant this motion and
13 transfer this matter to the limited civil jurisdiction, where it should have been filed initially.
14 VI. CONCLUSION
15 Based on the foregoing, SSFSC respectfully requested that the Court order this case
16 reclassified as an civil action oflimitedjurisdiction pursuant to the provisions of Code ofCivil
17 Procedure §403.040.
18 DATED: August 8, 2018 CLAUSEN MILLER P.C.
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21 Ian R. Fe‘ldihan
22
Attorneys for Defendant
23 SOUTH SAN FRANCISCO SCAVENGER
CO., INC.
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MEMORANDUM OF POINTS AND AUTHORITIES
DECLARATION OF IAN R. FELDMAN
1, Ian R. Feldman, declare:
1. I am an attorney at law licensed to practice before all the Courts in the State of
California and am a partner with the law firm Clausen Miller P.C., counsel of record for
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Defendant SOUTH SAN FRANCISCO SCAVENGER CO., INC. (“SSFSC”). This
Declaration is submitted in support of Defendant SSFSC’s Motion for Reclassification of
Action (Limited Jurisdiction).
2. The following facts are within my own personal knowledge, except as to those
matters stated to be on information and belief, which I believe to be true. If called as a witness,
I could and would competently testify to these facts.
3. Plaintiff filed this matter on January 16, 2018 as an unlimited jurisdiction matter
based on her allegations and prayer for punitive damages and restitution. See RJN, Exhibit
“1.”
4. This is simply a relatively straightforward and minor property damage case of
disputed liability. Plaintiff’s own verified discovery responses confirm that the property
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damage to her vehicle was $12,334.56. Plaintiff served her Responses to Request for
Production of Documents, Set One, and responsive documents on or about July 31, 2018.
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Attached hereto as Exhibit “A” is a true and correct copy of Plaintiff 5 Responses to Request
for Production of Documents, Set One.
5. To make matters worse, Plaintiff failed to provide any meaningful response to
Judicial Council Form Interrogatories series 7.0, 8.0 and 9.0, which seek the amount and
identification of her damages. Attached hereto as Exhibit “B” is a true and correct copy of
Plaintiff s verified Responses to Form Interrogatories, Set One, served on or about July 31,
2018. Amazingly, she does not provide any amount! All that the current record shows is a
property damage claim for at best, $12,334.56.
6. The deposition of Matthew Henderson, SSFSC’S driver on the date of the
incident was taken on July 10, 2018. At the deposition, Mr. Henderson testified that during
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DECLARATION OF IAN R. FELDMAN
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this pickup, he had not seen Plaintiff’s vehicle enter into the courtyard even as he was exiting
and properly looking in all of his rear view mirrors and cameras. Attached hereto as Exhibit
“C” are the relevant portions of Mr. Henderson’s deposition. Accordingly, any claim that
Plaintiff is entitled to punitive damages under the heightened evidentiary burdens under
\OOO\]O\UI-bb~)l\) Civil Code §3294 should be given short shrift.
7. Therefore, good cause exists for the Court to grant this Motion and transfer this
matter to limited civil jurisdiction under Code of Civil Procedure §85(b).
I declare under penalty of perjury under the laws of the State of California that the
foregoing is true and correct, and that this declaration was executed on June 25, 2018 at Irvine,
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California.
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DECLARATION OF IAN R. FELDMAN
Exhibit A
ALBERT LEE — C.S.B. #161237
Attorney At Law
1640 Stockton Street, #330222
San Francisco, CA 94133-0222
Telephone: (415) 215-6868
Facsimile: 1-888-432-1854
Attorney For Plaintiff
KWOK M. CHIN G
SUPERIOR COURT OF CALIFORNIA
FOR THE COUNTY OF SAN MATEO
10 UNLIMITED CIVIL JURISDICTION
ll KWOK M. CHING, No. 18-CIV-00221
12
Plaintiff, PLAINTIFF KWOK M. CHING’S
13 RESPONSES TO DEFENDANT’S
V. REQUEST FOR PRODUCTION OF
14 DOCUMENTS, SET ONE
SOUTH SAN FRANCISCO SCAVENGER CO.,
15 INC.; and DOES 1 through 100, inclusive, Complaint Filed 1/16/18
VVVVVVVVVVVVVVVVVVV
16 Defendants. Trial Date: Not Set
17 [Served via US Mail on July 31, 2018
from San Francisco, CA]
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PROPOUNDING PARTY: DEFENDANT SOUTH SAN FRANCISCO SCAVENGER CO., INC.
RESPONDING PARTY: PLAINTIFF KWOK M. CHING
SET NUMBER: ONE
PRELIMINARY STATEMENT
It should be noted that this responding party has not fully completed an investigation of the facts
relating to this case and has not completed discovery, and has not completed preparation for trial.
All of the responses contained herein are based only upon such information and documents which
are presently available to and specifically known to this responding party, and disclose only those
contentions and/or information which presently occur to such responding party.
10 It is anticipated that further discovery, independent investigation, legal research, and analysis will
11 supply additional facts and add meaning to known facts, as well as establish entirely new factual
12 conclusions and legal contentions, all of which may lead to changes in and variations from the
13 information and/or contentions set forth herein.
14 The following responses are given without prejudice to responding party's right to produce
15 evidence of any subsequently discovered fact or facts which this responding party may later discover.
16 Responding party accordingly reserves the right to change any and all responses herein as additional facts
17 are ascertained, analyses are made, legal research is completed, and contentions are made. The responses
18 contained herein are made in good faith effort to supply as much factual information and as much
19 specification of legal contentions as presently known, but should in no way be to the prejudice of this
20 responding party in relation to further discovery, research, or analysis.
21 Nos. 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 18, 19, 20, 22, 24, 26, 27, 28, 29, 30
22 Respondent objects to the instructions and will respond in compliance with the law and not
23 defendant’s unilateral instructions. Responding party objects on the basis that the demand: does not
24 identify documents with reasonable particularity, and could be construed to seek documents protected by
25 the privacy rights of the plaintiff and third parties. Respondent further objects on the basis that the
26 request could be construed to seek documents that are in violation of CCP section 2017.010. To the
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extent the request is construed to seek attorney client and work product documents, respondent objects.
To the extent the request encompasses the opinion or opinions of an expert, respondent objects on the
basis that designation of expert information is pre-mature and not complete, nor is the discovery of expert
information complete. Respondent further objects on the basis that at this time, trial has not been set,
defendants have obstructed discovery, discovery and investigation have been stymied by defendants,
discovery and investigation are not complete, damages are on going, and therefore respondent is unable
to provide all of the requested items. The foregoing Preliminary Statement is incorporated herein as if set
forth fully. Without waiving these objections, plaintiff will produce relevant, responsive, non-private,
non-privileged, non-work product, non—attorney client documents, if any, insofar as they can be
10 determined and insofar as they can be located at the present time which are not equally available to
11 defendant. Discovery, investigation and legal research are not complete and continuing.
12 Nos. 13,16,17
13 Respondent objects to the instructions and will respond in compliance with the law and not
14 defendant’s unilateral instructions. Responding party objects on the basis that the demand: does not
15 identify documents with reasonable particularity, and could be construed to seek documents protected by
16 the privacy rights of the plaintiff and third parties. Respondent further objects on the basis that the
17 request could be construed to seek documents that are in violation of CCP section 2017.010. To the
18 extent the request is construed to seek attorney client and work product documents, respondent objects.
19 To the extent the request encompasses the opinion or opinions of an expert, respondent objects on the
20 basis that designation of expert information is pre-mature and not complete, nor is the discovery of expert
21 information complete. Respondent further objects on the basis that at this time, trial has not been set,
22 defendants have obstructed discovery, discovery and investigation have been stymied by defendants,
23 discovery and investigation are not complete, damages are on going, and therefore respondent is unable
24 to provide all of the requested items. The foregoing Preliminary Statement is incorporated herein as if set
25 forth fully. Without waiving these objections, plaintiff will produce relevant, responsive, non-private,
26 non-privileged, non-work product, non-attorney client documents, if any, insofar as they can be
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determined and insofar as they can be located at the present time which are not equally available to
defendant. On Information and belief, Mecedes Benz USA LLC, 303 Perimeter Center North, Suite 202,
Atlanta, GA 30346 may have additional documents. Discovery, investigation and legal research are not
complete and continuing.
No. 14
Respondent objects to the instructions and will respond in compliance with the law and not
defendant’s unilateral instructions. Responding party objects on the basis that the demand: does not
identify documents with reasonable particularity, and could be construed to seek documents protected by
the privacy rights of the plaintiff and third parties. Respondent further objects on the basis that the
10 request could be construed to seek documents that are in violation of CCP section 2017.010. To the
11 extent the request is construed to seek attorney client and work product documents, respondent objects.
12 To the extent the request encompasses the opinion or opinions of an expert, respondent objects on the
13 basis that designation of expert information is pre-mature and not complete, nor is the discovery of expert
14 information complete. Respondent further objects on the basis that at this time, trial has not been set,
15 defendants have obstructed discovery, discovery and investigation have been stymied by defendants,
16 discovery and investigation are not complete, damages are on going, and therefore respondent is unable
17 to provide all of the requested items. The foregoing Preliminary Statement is incorporated herein as if set
18 forth fully. Without waiving these objections, on information and belief, plaintiffs insurer did not cover
19 the incident. Discovery, investigation and legal research are not complete and continuing.
20 No. 15
21 Respondent objects to the instructions and will respond in compliance with the law and not
22 defendant’s unilateral instructions. Responding party objects on the basis that the demand: does not
23 identify documents with reasonable particularity, and could be construed to seek documents protected by
24 the privacy rights of the plaintiff and third parties. Respondent further objects on the basis that the
25 request could be construed to seek documents that are in violation of CCP section 2017.010. To the
26 extent the request is construed to seek attorney client and work product documents, respondent objects.
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To the extent the request encompasses the opinion or opinions of an expert, respondent objects on the
basis that designation of expert information is pre~mature and not complete, nor is the discovery of expert
information complete. Respondent further objects on the basis that at this time, trial has not been set,
defendants have obstructed discovery, discovery and investigation have been stymied by defendants,
discovery and investigation are not complete, damages are on going, and therefore respondent is unable
to provide all of the requested items. The foregoing Preliminary Statement is incorporated herein as if set
forth fully. Discovery, investigation and legal research are not complete and continuing.
Nos. 21, 25
Respondent objects to the instructions and will respond in compliance with the law and not
10 defendant’s unilateral instructions. Responding party objects on the basis that the demand: does not
11 identify documents with reasonable particularity, and could be construed to seek documents protected by
12 the privacy rights of the plaintiff and third parties. Respondent further objects on the basis that the
13 request could be construed to seek documents that are in violation of CCP section 2017.010. To the
14 extent the request is construed to seek attorney client and work product documents, respondent objects.
15 To the extent the request encompasses the opinion or opinions of an expert, respondent objects on the
16 basis that designation of expert information is pre-mature and not complete, nor is the discovery of expert
17 information complete. Respondent further objects on the basis that at this time, trial has not been set,
18 defendants have obstructed discovery, discovery and investigation have been stymied by defendants,
19 discovery and investigation are not complete, damages are on going, and therefore respondent is unable
20 to provide all of the requested items. The foregoing Preliminary Statement is incorporated herein as if set
21 forth fully. Without waiving these objections, no documents are identified in response to the form
22 interrogatory.
23 No. 23
24 Respondent objects to the instructions and will respond in compliance with the law and not
25 defendant’s unilateral instructions. Responding party objects on the basis that the demand: does not
26 identify documents with reasonable particularity, and could be construed to seek documents protected by
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the privacy rights of the plaintiff and third parties. Respondent further objects on the basis that the
request could be construed to seek documents that are in violation of CCP section 2017.010. To the
extent the request is construed to seek attorney client and work product documents, respondent objects.
To the extent the request encompasses the opinion or opinions of an expert, respondent objects on the
basis that designation of expert information is pre~mature and not complete, nor is the discovery of expert
information complete. Respondent further objects on the basis that at this time, trial has not been set,
defendants have obstructed discovery, discovery and investigation have been stymied by defendants,
discovery and investigation are not complete, damages are on going, and therefore respondent is unable
to provide all of the requested items. The foregoing Preliminary Statement is incorporated herein as if set
10 forth fiilly. Without waiving the objections, the referenced exhibit to the Matt Henderson deposition
ll transcript is available from Aiken and Welch depsoition reporters and on information and belief counsel
12 for defendant purchased it and is therefore presumably in his possession. Discovery, investigation and
13 legal research are not complete and continuing.
14 DATED: July, 2018 ALBERT
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VERIFICATION
I am a party to this action. I have read PLAINTIFF KWOK M. CI-IING’S RESPONSES TO
DEFENDANT’S REQUEST FOR PRODUCTION OF DOCUMENTS, SET ONE and know the contents
thereof. The document is true of my own information and beliet’, and I believe them to be true.
I declare under penalty of perjury under the laws of’the State ot‘Califomia that the foregoing is
true and correct.
Dated: July 7:75 .l__, 20l8
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Ian R. Feldman (State Bar No. 200308) CLAUSEN MILLER P.C. 17901 Von Karman Avenue, Suite 650 FILED Irvine, CA 92614 SAN MATFU OOUNTY Telephone 949-260-3100 AUG ,5 g ‘ZillB Facsimile 949-260-3190 H Clark SUWlOt Court \OOO\IO\UI-I>U)I\) By GE“ Attorneys for Defendant SOUTH SAN FRANCISCO SCAVENGER CO., INC. SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SAN MATEO —A O KWOK M. CHING, Case No. 18CIV00221 : ’ E2 = a ’ _ 5—. H Plaintiff, DEFENDANT SOUTH SAN v—4 N FRANCISCO SCAVENGER C0., VS- INC.’S NOTICE OF MOTION AND v—A W SOUTH SAN FRANCISCO SCAVENGER MOTION FOR RECLASSIFICATION OF ACTION TO LIMITED >—‘ 4:» CO., INC.; and DOES 1 through 100, inclusive, JURISDICTION UNDER C.C.P. >——- U] SECTION 403.040; MEMORANDUM Defehdantsl OF POINTS AND AUTHORITIES IN p—- O\ SUPPORT THEREOF; I >——-| \] DECLARATION OF IAN R. FELDMAN v—t 00 [Filed concurrently herewith Request for Judicial Notice; and Proposed Order] r—d \o [\J Date: September I[ 2018 O Time: 9:00 am. N ’—‘ Dept: LM NN Action Filed: January 16, 2018 [Q W Trial Date: None set MA N L11 TO THIS HONORABLE COURT, TO PLAINTIFF KWOK M. CHING AND TO HER N 0\ ATTORNEY OF RECORD: N \1 PLEASE TAKE NOTICE that on September 69, 2018 at 9:00 am, or as soon thereafter N 00 as the matter may be heard in the Law & Motion Department of the above-entitled court -1- NOTICE OF MOTION AND MOTION FOR RECLASSIFICATION OF ACTION (LIMITED JURISDICTION) ,_a Ian R. Feldman (State Bar No. 200308) CLAUSEN MILLER PO 17901 Von Karman Avenue, Suite 650 Irvine, CA 92614 Telephone 949-260-3100 FAX Facsimile 949-260-3190 BY \OOOQONLJ‘I-DUJN Attorneys for Defendant SOUTH SAN FRANCISCO SCAVENGER CO., INC. SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SAN MATEO KWOK M. CHING, Case No. 18CIV00221 Plaintiff, DEFENDANT SOUTH SAN FRANCISCO SCAVENGER C0., VS' INC.’S NOTICE OF MOTION AND SOUTH SAN FRANCISCO SCAVENGER MOTION FOR RECLASSIFICATION OF ACTION TO LIMITED CO., INC.; and DOES I through 100, inclusive, JURISDICTION UNDER C.C.P. SECTION 403.040; MEMORANDUM Defendants. OF POINTS AND AUTHORITIES IN NNNNNNNNNH—‘b—‘D—ID—Jb—‘b—‘D—‘r—ID—l SUPPORT THEREOF; DECLARATION OF IAN R. FELDMAN [Filed concurrently herewith Request for mflmmgwwi—‘OOOOQQM-h-WNHO Judicial Notice; and Proposed Order] Date: September {I 2018 Time: 9:00 am. Dept: LM Action Filed: January 16, 2018 Trial Date: None set TO THIS HONORABLE COURT, TO PLAINTIFF KWOK M. CHING AND TO HER ATTORNEY OF RECORD: PLEASE TAKE NOTICE that on September 6, 2018 at 9:00 am, or as soon thereafter as the matter may be heard in the Law & Motion Department of the above-entitled court -1- NOTICE OF MOTION AND MOTION FOR RECLASSIFICATION OF ACTION (LIMITED JURISDICTION) ,_. located at 400 County Center, in Redwood City, California, Defendant SOUTH SAN FRANCISCO SCAVENGER CO., INC. (“SSFSC”) will and hereby does move for an Order reclassifying this action as a limited jurisdiction civil case under Code of Civil Procedure §403.040 because the amount in controversy does not exceed $25,000 in this straightforward claim for property damage from a motor vehicle incident. \ooouoxmgwm This Motion is based on this Notice and Motion, the attached Memorandum of Points and Authorities, the Request for Judicial Notice, the Declaration of Ian R. Feldman, on all oral and documentary evidence presented at the hearing on this Motion and on all papers, records and pleadings on file in this matter. DATED: August 8, 2018 CLAUSEN MILLER P.C. Ian R. Feldlnan Meredith D. Stewart Attorneys for Defendant SOUTH SAN FRANCISCO SCAVENGER CO., INC. NNNNNNNNNHD—‘t—‘HI—‘b—lh—dr—‘b—‘p—l WQQM-PWNHOWOOflQm-fiWNHO -2- NOTICE OF MOTION AND MOTION FOR RECLASSIFICATION OF ACTION (LIMITED JURISDICTION) MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION This matter arises out of a relatively straightforward fender-bender incident in Millbrae, California. Plaintiff alleges that the Defendant’s truck struck Plaintiffs vehicle during a \OOO\IO\'JI-I>UJI\JI—e routine trash pickup. On January 16, 2018, Plaintiff filed this matter as an “Unlimited Civil Case.” See RJN, Ex. “1 .”). This “kitchen-sink” complaint seeks property damages arising from a minor motor vehicle incident that occurred on October 11,2017. There is no bodily injury damages alleged. Nevertheless, Plaintiff‘s FAC contains allegations and a prayer for punitive damages and a cause of action for violation of Business & Professions Code Section 17200, which are currently the subject of a demurrer and motion to strike on August 24, 2018. Plaintiff’s verified discovery responses, specifically an estimate of damage from a repair shop show that the alleged property damage to her vehicle to be $12,334.56. Declaration of Ian R. Feldman, (“Feldman Decl.”) 114, see also Ex. “A” at bates P6-P10. Amazingly, Plaintiff and her counsel somehow failed to provide a response to Form Interrogatories 7.0, 8.0 and 9.0, which seeks information regarding the damages sustained. Feldman Decl, 115, see NNNNNNNNND—‘r—‘h—lL—Ab—lb—li—fib—dr—‘H also Ex. “B.” Further, the Plaintiff’ 3 claim for punitive damages should be seen for what it is — an OONGM-D-WNHOQOOQONUl-PWNi—‘O overreaching attempt to continue to harass and increase the costs of litigation. Specifically, the driver of the truck testified that during this pickup, he had not seen Plaintiff‘s vehicle enter into the court even as he was exiting and properly looking in all of his rear view mirrors and cameras. Feldman Decl., 116 and Ex. “C” at pp. 73:20-75:10 and 81:1—17. II. THIS CASE SHOULD BE CLASSIFIED AS A LIMITED CIVIL CASE “Limited civil cases” are “cases at law in which the demand, exclusive of interest, or the value of the property in controversy amounts to twenty-five thousand dollars ($25,000) or less.” California Code of Civil Procedure section 86(a)(l). “Unlimited civil cases” are cases in which the demand, exclusive of interest, is over $25,000. California Code of Civil Procedure §88. -1- MEMORANDUM OF POINTS AND AUTHORITIES Whether an action qualifies as a limited or unlimited civil action is determined initially from the prayer or demand for relief in the plaintiff’s complaint. Once classified as limited or unlimited that classification normally continues throughout the litigation. If, however, a matter has been designated as an unlimited action, and yet the amount of controversy is $25,000 or less, the statutory scheme authorizes “reclassification” of the case as a “limited” action and \OOOflmm-PWNH transfer of the matter to a superior court presiding over such actions. California Code of Civil Procedure §403.040(a); see also Ytuarte v. Superior Court (2005) 129 Cal.App.4th 266, 272. III. A COURT MAY GRANT A MOTION FOR RECLASSIFICATION WHERE THE CASE IS INCORRECTLY CLASSIFIED AND THE MOVING PARTY SHOWS GOOD CAUSE FOR NOT SEEKING RECLASSIFICATION EARLIER If a party files a motion for reclassification after the time for that party to amend or respond to a complaint, cross-complaint, or other initial pleading, the court shall grant the motion and enter an order for reclassification only if both of the following conditions are satisfied: (1) The case is incorrectly classified. NNNNNNNNND—li—‘b—‘HP‘Hh—‘b—‘D—lb—t (2) The moving party shows good cause for not seeking reclassification earlier. WNONM-PWNHOKOOONONM-PWNF—‘O Code Civ. Proc. §403.040(b)(l)-(2) (emphasis added). An action or special proceeding shall be treated as a limited civil case if all ofthe following conditions are satisfied: . . . (a) The amount in controversy does not exceed twenty-five thousand dollars ($25,000). (b) The relief sought is a type that may be granted in a limited civil case. (0) The relief sought, whether in the complaint, a cross— complaint, or otherwise, is exclusively of a type described in one -2- MEMORANDUM OF POINTS AND AUTHORITIES or more statutes that classify an action or special proceeding as a limited civil case or that provide that an action or special #WN proceeding is within the original jurisdiction of the municipal court, [including, but not limited to 22 specific statutory provisions]. Code Civ. Proc. §§85(a) to (c), 86. \OOO\]O‘\&JI Thus, a matter may be reclassified as a limited civil action “when during the course of pretrial litigation, it becomes clear that the matter will ‘necessarily’ result in a verdict below [$25,000.01].” Walker v. Superior Court (1991) 53 Cal.3d 257, 262. “This standard involves 10 an evaluation of the amount fairly in controversy, not an adjudication of the merits of the claim, 11 and requires a ‘high level of certainly that [the] damage award will not exceed $25,000.” 12 Eagle, 129 Cal.App.4th at 276 quoting Mgr, 53 Cal.3d at 269. 13 Here, based on Plaintiff’s own verified discovery responses, there is a high level of 14 certainty that the damage award will not exceed $25,000 for this straightforward and relatively 15 minor property damage claim. 16 IV. THIS ACTION WAS INCORRECTLY CLASSIFIED AS AN UNLIMITED 17 CIVIL ACTION 18 To reclassify an action because it does not meet the jurisdictional amount involves 19 evaluation of the amount fairly in controversy, not an evaluation of the merits of the claim; the 2o trial court must reasonably determine that the verdict will “necessarily” fall short of the 21 $25,001 required for an unlimited civil case. Stern v. Superior Court (2003) 105 Cal. App. 4th 22 223. 23 An action can be reclassified as a limited civil case where the claim necessarily involves 24 no more than $25,000. Under this test, the inability to recover more than $25,000 must be 25 established to a legal certainty, i.e., it must be shown that a monetary award of more than 26 $25,000 is “virtually unattainable.” Walker v. Superior Court (1991) 53 Cal. 3d 257, 269, 279 27 (test for jurisdictional transfers from superior to municipal court under prior law). 28 .3- MEMORANDUM OF POINTS AND AUTHORITIES As stated in the Declaration of Ian R. Feldman submitted herewith, this is a relatively minor property damage case of disputed liability. Plaintiff’s property damage does not exceed the limited civil jurisdiction. V. GOOD CAUSE EXISTS FOR MOVING PARTY NOT SEEKING RECLASSIFICATION EARLIER \DOO\IO\U‘14>~WN Code of Civil Procedure §403.040(b) specifies that where a motion for reclassification is made after the time within which to amend or respond to an initial pleading, the court shall grant the motion where the moving party shows good cause for not seeking reclassification earlier. Code Civ. Proc. §403.040(b). 1o Here, Plaintiff’s own verified discovery responses, served on July 31, 2018 substantiate 11 that there is a high level of certainty that the damage award will not exceed $25,000 for this 12 property damage claim. Therefore, good cause exists for the Court to grant this motion and 13 transfer this matter to the limited civil jurisdiction, where it should have been filed initially. 14 VI. CONCLUSION 15 Based on the foregoing, SSFSC respectfully requested that the Court order this case 16 reclassified as an civil action oflimitedjurisdiction pursuant to the provisions of Code ofCivil 17 Procedure §403.040. 18 DATED: August 8, 2018 CLAUSEN MILLER P.C. 19 20 21 Ian R. Fe‘ldihan 22 Attorneys for Defendant 23 SOUTH SAN FRANCISCO SCAVENGER CO., INC. 24 25 26 27 28 -4- MEMORANDUM OF POINTS AND AUTHORITIES DECLARATION OF IAN R. FELDMAN 1, Ian R. Feldman, declare: 1. I am an attorney at law licensed to practice before all the Courts in the State of California and am a partner with the law firm Clausen Miller P.C., counsel of record for GOONQM-PWNH Defendant SOUTH SAN FRANCISCO SCAVENGER CO., INC. (“SSFSC”). This Declaration is submitted in support of Defendant SSFSC’s Motion for Reclassification of Action (Limited Jurisdiction). 2. The following facts are within my own personal knowledge, except as to those matters stated to be on information and belief, which I believe to be true. If called as a witness, I could and would competently testify to these facts. 3. Plaintiff filed this matter on January 16, 2018 as an unlimited jurisdiction matter based on her allegations and prayer for punitive damages and restitution. See RJN, Exhibit “1.” 4. This is simply a relatively straightforward and minor property damage case of disputed liability. Plaintiff’s own verified discovery responses confirm that the property NNNNNNNNN—‘i—‘D—‘h—‘r—Ir—ID—‘D—‘t—dh—t damage to her vehicle was $12,334.56. Plaintiff served her Responses to Request for Production of Documents, Set One, and responsive documents on or about July 31, 2018. WNQMQWNHOWOOflokWNI—‘O Attached hereto as Exhibit “A” is a true and correct copy of Plaintiff 5 Responses to Request for Production of Documents, Set One. 5. To make matters worse, Plaintiff failed to provide any meaningful response to Judicial Council Form Interrogatories series 7.0, 8.0 and 9.0, which seek the amount and identification of her damages. Attached hereto as Exhibit “B” is a true and correct copy of Plaintiff s verified Responses to Form Interrogatories, Set One, served on or about July 31, 2018. Amazingly, she does not provide any amount! All that the current record shows is a property damage claim for at best, $12,334.56. 6. The deposition of Matthew Henderson, SSFSC’S driver on the date of the incident was taken on July 10, 2018. At the deposition, Mr. Henderson testified that during -1- DECLARATION OF IAN R. FELDMAN ,._. this pickup, he had not seen Plaintiff’s vehicle enter into the courtyard even as he was exiting and properly looking in all of his rear view mirrors and cameras. Attached hereto as Exhibit “C” are the relevant portions of Mr. Henderson’s deposition. Accordingly, any claim that Plaintiff is entitled to punitive damages under the heightened evidentiary burdens under \OOO\]O\UI-bb~)l\) Civil Code §3294 should be given short shrift. 7. Therefore, good cause exists for the Court to grant this Motion and transfer this matter to limited civil jurisdiction under Code of Civil Procedure §85(b). I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct, and that this declaration was executed on June 25, 2018 at Irvine, (D California. F‘ Ian R. Feldilhan h) U0 13l472J $> Ln Ch NNNNNNNNNHHHi—‘l—‘P—‘D—‘P‘b—‘b—t ‘4 00 V3 CD P‘ 59 U0 $> kn Ch \J 00 -2- DECLARATION OF IAN R. FELDMAN Exhibit A ALBERT LEE — C.S.B. #161237 Attorney At Law 1640 Stockton Street, #330222 San Francisco, CA 94133-0222 Telephone: (415) 215-6868 Facsimile: 1-888-432-1854 Attorney For Plaintiff KWOK M. CHIN G SUPERIOR COURT OF CALIFORNIA FOR THE COUNTY OF SAN MATEO 10 UNLIMITED CIVIL JURISDICTION ll KWOK M. CHING, No. 18-CIV-00221 12 Plaintiff, PLAINTIFF KWOK M. CHING’S 13 RESPONSES TO DEFENDANT’S V. REQUEST FOR PRODUCTION OF 14 DOCUMENTS, SET ONE SOUTH SAN FRANCISCO SCAVENGER CO., 15 INC.; and DOES 1 through 100, inclusive, Complaint Filed 1/16/18 VVVVVVVVVVVVVVVVVVV 16 Defendants. Trial Date: Not Set 17 [Served via US Mail on July 31, 2018 from San Francisco, CA] 18 19 20 21 22 /// 23 24 25 26 27 28 PROPOUNDING PARTY: DEFENDANT SOUTH SAN FRANCISCO SCAVENGER CO., INC. RESPONDING PARTY: PLAINTIFF KWOK M. CHING SET NUMBER: ONE PRELIMINARY STATEMENT It should be noted that this responding party has not fully completed an investigation of the facts relating to this case and has not completed discovery, and has not completed preparation for trial. All of the responses contained herein are based only upon such information and documents which are presently available to and specifically known to this responding party, and disclose only those contentions and/or information which presently occur to such responding party. 10 It is anticipated that further discovery, independent investigation, legal research, and analysis will 11 supply additional facts and add meaning to known facts, as well as establish entirely new factual 12 conclusions and legal contentions, all of which may lead to changes in and variations from the 13 information and/or contentions set forth herein. 14 The following responses are given without prejudice to responding party's right to produce 15 evidence of any subsequently discovered fact or facts which this responding party may later discover. 16 Responding party accordingly reserves the right to change any and all responses herein as additional facts 17 are ascertained, analyses are made, legal research is completed, and contentions are made. The responses 18 contained herein are made in good faith effort to supply as much factual information and as much 19 specification of legal contentions as presently known, but should in no way be to the prejudice of this 20 responding party in relation to further discovery, research, or analysis. 21 Nos. 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 18, 19, 20, 22, 24, 26, 27, 28, 29, 30 22 Respondent objects to the instructions and will respond in compliance with the law and not 23 defendant’s unilateral instructions. Responding party objects on the basis that the demand: does not 24 identify documents with reasonable particularity, and could be construed to seek documents protected by 25 the privacy rights of the plaintiff and third parties. Respondent further objects on the basis that the 26 request could be construed to seek documents that are in violation of CCP section 2017.010. To the 27 28 RPD I RESPONSES -- Page 2 extent the request is construed to seek attorney client and work product documents, respondent objects. To the extent the request encompasses the opinion or opinions of an expert, respondent objects on the basis that designation of expert information is pre-mature and not complete, nor is the discovery of expert information complete. Respondent further objects on the basis that at this time, trial has not been set, defendants have obstructed discovery, discovery and investigation have been stymied by defendants, discovery and investigation are not complete, damages are on going, and therefore respondent is unable to provide all of the requested items. The foregoing Preliminary Statement is incorporated herein as if set forth fully. Without waiving these objections, plaintiff will produce relevant, responsive, non-private, non-privileged, non-work product, non—attorney client documents, if any, insofar as they can be 10 determined and insofar as they can be located at the present time which are not equally available to 11 defendant. Discovery, investigation and legal research are not complete and continuing. 12 Nos. 13,16,17 13 Respondent objects to the instructions and will respond in compliance with the law and not 14 defendant’s unilateral instructions. Responding party objects on the basis that the demand: does not 15 identify documents with reasonable particularity, and could be construed to seek documents protected by 16 the privacy rights of the plaintiff and third parties. Respondent further objects on the basis that the 17 request could be construed to seek documents that are in violation of CCP section 2017.010. To the 18 extent the request is construed to seek attorney client and work product documents, respondent objects. 19 To the extent the request encompasses the opinion or opinions of an expert, respondent objects on the 20 basis that designation of expert information is pre-mature and not complete, nor is the discovery of expert 21 information complete. Respondent further objects on the basis that at this time, trial has not been set, 22 defendants have obstructed discovery, discovery and investigation have been stymied by defendants, 23 discovery and investigation are not complete, damages are on going, and therefore respondent is unable 24 to provide all of the requested items. The foregoing Preliminary Statement is incorporated herein as if set 25 forth fully. Without waiving these objections, plaintiff will produce relevant, responsive, non-private, 26 non-privileged, non-work product, non-attorney client documents, if any, insofar as they can be 27 28 RPD I RESPONSES -- Page 3 determined and insofar as they can be located at the present time which are not equally available to defendant. On Information and belief, Mecedes Benz USA LLC, 303 Perimeter Center North, Suite 202, Atlanta, GA 30346 may have additional documents. Discovery, investigation and legal research are not complete and continuing. No. 14 Respondent objects to the instructions and will respond in compliance with the law and not defendant’s unilateral instructions. Responding party objects on the basis that the demand: does not identify documents with reasonable particularity, and could be construed to seek documents protected by the privacy rights of the plaintiff and third parties. Respondent further objects on the basis that the 10 request could be construed to seek documents that are in violation of CCP section 2017.010. To the 11 extent the request is construed to seek attorney client and work product documents, respondent objects. 12 To the extent the request encompasses the opinion or opinions of an expert, respondent objects on the 13 basis that designation of expert information is pre-mature and not complete, nor is the discovery of expert 14 information complete. Respondent further objects on the basis that at this time, trial has not been set, 15 defendants have obstructed discovery, discovery and investigation have been stymied by defendants, 16 discovery and investigation are not complete, damages are on going, and therefore respondent is unable 17 to provide all of the requested items. The foregoing Preliminary Statement is incorporated herein as if set 18 forth fully. Without waiving these objections, on information and belief, plaintiffs insurer did not cover 19 the incident. Discovery, investigation and legal research are not complete and continuing. 20 No. 15 21 Respondent objects to the instructions and will respond in compliance with the law and not 22 defendant’s unilateral instructions. Responding party objects on the basis that the demand: does not 23 identify documents with reasonable particularity, and could be construed to seek documents protected by 24 the privacy rights of the plaintiff and third parties. Respondent further objects on the basis that the 25 request could be construed to seek documents that are in violation of CCP section 2017.010. To the 26 extent the request is construed to seek attorney client and work product documents, respondent objects. 27 28 RPD I RESPONSES -- Page 4 To the extent the request encompasses the opinion or opinions of an expert, respondent objects on the basis that designation of expert information is pre~mature and not complete, nor is the discovery of expert information complete. Respondent further objects on the basis that at this time, trial has not been set, defendants have obstructed discovery, discovery and investigation have been stymied by defendants, discovery and investigation are not complete, damages are on going, and therefore respondent is unable to provide all of the requested items. The foregoing Preliminary Statement is incorporated herein as if set forth fully. Discovery, investigation and legal research are not complete and continuing. Nos. 21, 25 Respondent objects to the instructions and will respond in compliance with the law and not 10 defendant’s unilateral instructions. Responding party objects on the basis that the demand: does not 11 identify documents with reasonable particularity, and could be construed to seek documents protected by 12 the privacy rights of the plaintiff and third parties. Respondent further objects on the basis that the 13 request could be construed to seek documents that are in violation of CCP section 2017.010. To the 14 extent the request is construed to seek attorney client and work product documents, respondent objects. 15 To the extent the request encompasses the opinion or opinions of an expert, respondent objects on the 16 basis that designation of expert information is pre-mature and not complete, nor is the discovery of expert 17 information complete. Respondent further objects on the basis that at this time, trial has not been set, 18 defendants have obstructed discovery, discovery and investigation have been stymied by defendants, 19 discovery and investigation are not complete, damages are on going, and therefore respondent is unable 20 to provide all of the requested items. The foregoing Preliminary Statement is incorporated herein as if set 21 forth fully. Without waiving these objections, no documents are identified in response to the form 22 interrogatory. 23 No. 23 24 Respondent objects to the instructions and will respond in compliance with the law and not 25 defendant’s unilateral instructions. Responding party objects on the basis that the demand: does not 26 identify documents with reasonable particularity, and could be construed to seek documents protected by 27 28 RPD I RESPONSES -- Page 5 the privacy rights of the plaintiff and third parties. Respondent further objects on the basis that the request could be construed to seek documents that are in violation of CCP section 2017.010. To the extent the request is construed to seek attorney client and work product documents, respondent objects. To the extent the request encompasses the opinion or opinions of an expert, respondent objects on the basis that designation of expert information is pre~mature and not complete, nor is the discovery of expert information complete. Respondent further objects on the basis that at this time, trial has not been set, defendants have obstructed discovery, discovery and investigation have been stymied by defendants, discovery and investigation are not complete, damages are on going, and therefore respondent is unable to provide all of the requested items. The foregoing Preliminary Statement is incorporated herein as if set 10 forth fiilly. Without waiving the objections, the referenced exhibit to the Matt Henderson deposition ll transcript is available from Aiken and Welch depsoition reporters and on information and belief counsel 12 for defendant purchased it and is therefore presumably in his possession. Discovery, investigation and 13 legal research are not complete and continuing. 14 DATED: July, 2018 ALBERT 15 16 17 Kwok l8 19 20 21 22 23 24 25 26 27 28 RPD 1 RESPONSES -- Page 6 VERIFICATION I am a party to this action. I have read PLAINTIFF KWOK M. CI-IING’S RESPONSES TO DEFENDANT’S REQUEST FOR PRODUCTION OF DOCUMENTS, SET ONE and know the contents thereof. The document is true of my own information and beliet’, and I believe them to be true. I declare under penalty of perjury under the laws of’the State ot‘Califomia that the foregoing is true and correct. Dated: July 7:75 .l__, 20l8 10 ll