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Filed 05/23/2008
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ANDERSON LAW FIRM MARTIN W. ANDERSON, State Bar No. 178422 2070 North Tustin Avenue Santa Ana, California 92705 Tel: (714) 516-2700 Fax: (714) 532-4700 E-mail: [email protected] LAW OFFICE OF MICHAEL E. LINDSEY MICHAEL E. LINDSEY, State Bar No. 99044 4455 Morena Blvd., Ste. 207 San Diego, California 92117-4325 Tel: (858) 270-7000 E-mail: [email protected] Attorneys for Plaintiff Alex Dominguez UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA
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(714) 516-2700
ANDERSON LAW FIRM
2070 NORTH TUSTIN AVENUE
12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 RECORD: PLEASE TAKE NOTICE THAT Plaintiff Alex Dominguez hereby submits the attached opposition to Defendant Four Winds International Corporation's motion Defendant's Ex Parte Application for Order Allowing Inspection of Motor Home Prior to Early Neutral Evaluation Conference. /// /// -iv. FOUR WINDS INTERNATIONAL CORPORATION, Defendant. ALEX DOMINGUEZ, Plaintiff, Case No. 08 CV 388 L LSP PLAINTIFF'S OPPOSITION TO DEFENDANT'S EX PARTE APPLICATION FOR ORDER ALLOWING INSPECTION OF MOTOR HOME PRIOR TO EARLY NEUTRAL EVALUATION CONFERENCE; MEMORANDUM OF POINTS AND AUTHORITIES; SUPPORTING DECLARATION Complaint Filed: February 29, 2008 Trial Date: None Set
TELEPHONE:
TO THE COURT, ALL PARTIES, AND THEIR ATTORNEYS OF
PLAINTIFF'S OPPOSITION TO DEFENDANT'S EX PARTE APPLICATION FOR ORDER ALLOWING INSPECTION OF MOTOR HOME PRIOR TO EARLY NEUTRAL EVALUATION CONFERENCE
Case 3:08-cv-00388-L-LSP
Document 9
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SANTA ANA, CALIFORNIA 92705
TABLE OF CONTENTS INTRODUCTION ..................................................................................................... 1 MEMORANDUM OF POINTS AND AUTHORITIES .......................................... 4 I. DEFENDANT HAS NOT SHOWN GOOD CAUSE FOR ALLOWING DISCOVERY AT THIS TIME ................................................ 4
CONCLUSION ......................................................................................................... 4 DECLARATION OF MICHAEL LINDSEY ........................................................... 5
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(714) 516-2700 TELEPHONE:
ANDERSON LAW FIRM
2070 NORTH TUSTIN AVENUE
12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - ii -
PLAINTIFF'S OPPOSITION TO DEFENDANT'S EX PARTE APPLICATION FOR ORDER ALLOWING INSPECTION OF MOTOR HOME PRIOR TO EARLY NEUTRAL EVALUATION CONFERENCE
Case 3:08-cv-00388-L-LSP
Document 9
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INTRODUCTION Defendant has filed an ex parte application asking the Court to order a vehicle inspection under Rule 34 of the Federal Rules of Civil Procedure on six days' notice, or to allow it's representative to skip the ENE. The application should be denied for the following reasons: 1. Defendant's ex parte application is replete with factual and legal a. Defendant falsely claims that Plaintiff's counsel agreed to allow statements which are untrue. Among them: an inspection prior to the ENE and the Rule 26 Conference to go forward on May 28, 2008. This claim is flatly untrue. Plaintiff's counsel never agreed to allow an inspection before the ENE or before the Rule 26 Conference. See Lindsay Decl., attached. Mr. Lindsey could not have made such an agreement because he will be at a Mandatory Settlement Conference before a Magistrate Judge on the same day that Defendant's counsel has scheduled the inspection. Id. Despite attaching numerous letters from Defendant's counsel to Plaintiff's counsel requesting early discovery, Defendant's counsel has been unable to find even a single letter, signed by anyone, confirming the telephone conversation that he falsely claims to have had with Plaintiff's counsel. Likewise, he never obtained an order allowing him to conduct discovery before the Rule 26 Conference as required by Rule 26. b. Defendant's claim that Plaintiff's warranty had expired as of August 15, 2006 is also not accurate. In truth, under Civil Code section 1793.1, "[i]f a defect exists within the warranty period, the warranty will not expire until the defect has been fixed." The warranty remains in full force today. Defendant's claim to the contrary is flatly untrue. 2. The vast majority of the factual assertions in the ex parte application are not supported by admissible (or even truthful) evidence. The only declaration submitted with the application is signed by Defendant's counsel, who claims that he has "personal knowledge" (See ¶ 1) of the date the Plaintiff purchased the -1-
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(714) 516-2700 TELEPHONE:
ANDERSON LAW FIRM
2070 NORTH TUSTIN AVENUE
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PLAINTIFF'S OPPOSITION TO DEFENDANT'S EX PARTE APPLICATION FOR ORDER ALLOWING INSPECTION OF MOTOR HOME PRIOR TO EARLY NEUTRAL EVALUATION CONFERENCE
Case 3:08-cv-00388-L-LSP
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vehicle and the duration of the warranty (¶ 2), a telephone call that he was not a party to between his client and the Plaintiff (¶ 3), and the date his client received the complaint in this action (¶ 4). He also purports to authenticate various documents that he did not create and that he is clearly not qualified to authenticate. These statements are obviously untrue. Mr. Ward's conduct clearly violates his obligations under Rule 11 of the Federal Rules of Civil Procedure to limit documents signed by him to truthful, accurate statements. 3. There is no legitimate reason to bring this matter to the Court's attention through an ex parte application. Simply put, this is not an emergency. The purpose of an ENE is to allow the parties to attempt to resolve the case without the need for discovery. If that is not possible in this case, so be it. Nothing in Defendant's application justifies emergency intervention by the Court. This is particularly troublesome given Mr. Ward's misrepresentations on a wide range of subjects. Given the emergent nature of Mr. Ward's ex parte application, Plaintiff's counsel has been unable to secure a declaration from his client to rebut the factual inaccuracies contained in paragraph 2 of Ward's declaration. Had this matter been raised by noticed motion, Plaintiff would have provided a declaration showing that when he demanded a repurchase before filing this lawsuit and that Defendant's counsel was not a party to the conversation and thus has no idea what happened during the conversation. Furthermore, the declaration would show that Defendant expressed no desire to inspect the vehicle prior to refusing Plaintiff's request. This is important because it disproves Defendant's counsel's claim that it would be impossible to make such a decision without an inspection. 4. Defendant's application is actually four applications in one: (1) An application for an order permitting discovery before the ENE, (2) an application for an order permitting discovery before holding the Rule 26 Conference, and (3) an application for an order shortening time to conduct an inspection of things under -2-
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(714) 516-2700 TELEPHONE:
ANDERSON LAW FIRM
2070 NORTH TUSTIN AVENUE
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PLAINTIFF'S OPPOSITION TO DEFENDANT'S EX PARTE APPLICATION FOR ORDER ALLOWING INSPECTION OF MOTOR HOME PRIOR TO EARLY NEUTRAL EVALUATION CONFERENCE
Case 3:08-cv-00388-L-LSP
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Rule 34 (even Defendant's formal notice violated Rule 34's timing requirements), and (4) an application to compel the inspection on six days' notice, without allowing Plaintiff time to object to requested inspection. Defendant's application is particularly troublesome because Plaintiff's counsel has no idea if Plaintiff or the vehicle is even available for the inspection on shortened notice. Plaintiff's counsel who would attend the inspection is not available because he will be at a Mandatory Settlement Conference. Furthermore, Defendant's inspection notice is defective (and thus objectionable) because it fails to state the specific tests that Defendant will conduct and fails to give a full 30days' notice. Under Rule 34, Plaintiff's counsel is entitled to a specific statement of the testing that will be performed so that he can determine whether to retain an expert (and which type of expert to retain). And again, Plaintiff has no idea whether the appropriate expert is available on the date that Defendant unilaterally selected for the inspection. If discovery were permissible at this stage, Plaintiff's response to the inspection demand would be an objection, following by a meet and confer effort to resolve this problem. Defendant's application seeks to bypass all of these issues and simply force Plaintiff to appear for an inspection that was improperly noticed. Defendant should not be permitted to take advantage of its misconduct in serving discovery before it is allowed. The Court should decline Defendant's request. 5. Defendant has offered no valid reason for its representative to be excused from attending the ENE. However, if the reason offered (the low prospect of settlement) is valid, it should apply equally to excuse Plaintiff from attending as well.
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(714) 516-2700 TELEPHONE:
ANDERSON LAW FIRM
2070 NORTH TUSTIN AVENUE
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PLAINTIFF'S OPPOSITION TO DEFENDANT'S EX PARTE APPLICATION FOR ORDER ALLOWING INSPECTION OF MOTOR HOME PRIOR TO EARLY NEUTRAL EVALUATION CONFERENCE
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Case 3:08-cv-00388-L-LSP
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MEMORANDUM OF POINTS AND AUTHORITIES I. DEFENDANT HAS NOT SHOWN GOOD CAUSE FOR ALLOWING DISCOVERY AT THIS TIME Rule 26 requires that the parties conduct a conference of counsel before initiating discovery, unless the Court orders otherwise. As explained above, Defendant has not shown a legitimate reason to change these rules. There has been no court order lifting these restrictions and Plaintiff never agreed to do so. Furthermore, the Court's Local Rules require appearance by a person with full settlement authority at the ENE. Defendant's application has not given any reason why Defendant's representative should be excused from attending the inspection. However, if he is excused, Plaintiff should be excused as well. If the remote possibility of settlement is grounds for excusing attendance at the settlement conference (it shouldn't be), the principal applies with equal force to the Plaintiff. CONCLUSION For all of the foregoing reasons, Defendant's Ex Parte Application for Order Allowing Inspection of Motor Home Prior to Early Neutral Evaluation Conference should be denied. DATED: May 23, 2008 ANDERSON LAW FIRM MARTIN W. ANDERSON MICHAEL E. LINDSEY
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(714) 516-2700 TELEPHONE:
ANDERSON LAW FIRM
2070 NORTH TUSTIN AVENUE
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By:
MARTIN W. ANDERSON Attorneys for Plaintiff Alex Dominguez
PLAINTIFF'S OPPOSITION TO DEFENDANT'S EX PARTE APPLICATION FOR ORDER ALLOWING INSPECTION OF MOTOR HOME PRIOR TO EARLY NEUTRAL EVALUATION CONFERENCE
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Case 3:08-cv-00388-L-LSP
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DECLARATION OF MICHAEL LINDSEY
I, MICHAEL LINDSEY, hereby declare as follows: 1. I am one of the attorneys for Plaintiff in this action. I will be handling
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the defense vehicle inspection in this case. 2. I have never agreed to the "voluntary" inspection which Defendant's
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counsel claims that I agreed to do. His claim to the contrary is a flat misrepresentation. It has always been our intention to object to the inspection demand because (l) it seeks discovery prior to the Rule 26 Conference, (2) it fails to designate the testing anticipated, and (3) it fails to give the required 30-days' notice. 3. In fact, I would never have agreed to do a vehicle inspection on May
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28, 2008, because I have a mandatory settlement conference before Magistrate Judge Barbara L. Majors on May 28,2008. That Mandatory Settlement Conference was scheduled on April 17,2008, and I was well-aware of it by the time that Defendant's counsel claims to have spoken with me concerning a vehicle inspection. That settlement conference remains on calendar today, so I could not possibly attend a vehicle inspection on that date. 4.
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It was our right to wait until 33 days after the inspection notice was
sent to object. Since the notice was served on May 2, 2008, we technically have until after the inspection to do so. However, I felt it was discourteous not to at least alert Defendant's counsel of our intent to object so that he could avoid wasting the time traveling to the inspection and bringing his expert along for nothing. I see now that it is still the case that no good deed goes unpunished. I declare under penalty of perjury that the foregoing is true and correct. DATED: May 23,2008
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PLAINTIFF'S OPPOSITION TO DEFENDANT'S EX PARTE APPLICATION FOR ORDER ALLOWING INSPECTION OF MOTOR
HOME PRIOR TO EARLY NEUTRAL EYALUA TION CONFERENCE
Case 3:08-cv-00388-L-LSP
Document 9
Filed 05/23/2008
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SANTA ANA, CALIFORNIA 92705
PROOF OF SERVICE I, Martin W. Anderson, am employed in the County of Orange, State of California. I am over the age of 18, and not a party to this action. My business address is 2070 North Tustin Avenue, Santa Ana, California 92705. ELECTRONICALLY: On the date indicated below, an attorney with our office will file the document described below electronically using the Court's CM/ECF System. I am informed and believe that the Court's CM/ECF system will automatically e-mail a Notice of Electronic Filing to each registered CM/ECF user and that this e-mailing will constitute electronic service of the document. Document(s) Served:
PLAINTIFF'S OPPOSITION TO DEFENDANT'S EX PARTE APPLICATION FOR ORDER ALLOWING INSPECTION OF MOTOR HOME PRIOR TO EARLY NEUTRAL EVALUATION CONFERENCE; MEMORANDUM OF POINTS AND AUTHORITIES; SUPPORTING DECLARATION
Person(s) served, address(es), and fax number(s): Mr. John Ward Walker, Wright, Tyler & Ward 626 Wilshire Blvd., Suite 900 Los Angeles, CA 90017 Date of Service: May 23, 2008 Date Proof of Service Signed: May 23, 2008 I declare under penalty of perjury under the laws of the State of California and of my own personal knowledge that the above is true and correct. Signature: /s/ Martin W. Anderson
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(714) 516-2700 TELEPHONE:
ANDERSON LAW FIRM
2070 NORTH TUSTIN AVENUE
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-6PLAINTIFF'S OPPOSITION TO DEFENDANT'S EX PARTE APPLICATION FOR ORDER ALLOWING INSPECTION OF MOTOR HOME PRIOR TO EARLY NEUTRAL EVALUATION CONFERENCE
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