Reply

Cal. Super. - 6th Dist.February 22, 2017

AN Ln W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 17CV306607 Santa Clara - Civil CRUSER, MITCHELL, NOVITZ, SANCHEZ, GASTON & ZIMET LLP Gary S. Spitzer (SBN 155425) 800 Wilshire Boulevard, Suite 1400 Los Angeles, CA 90017 213-689-8500 (phone) 213-689-8501 (fax) Attorney for Defendant ANCIENT MARINER, INC. S. Vera Electronically Filed by Superior Court of CA, County of Santa Clara, on 5/26/2020 4:49 PM Reviewed By: S. Vera Case #17CV306607 Envelope: 4379052 SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SANTA CLARA THE DENTISTS INSURANCE COMPANY, Plaintiff, VS. BELKIN INTERNATIONAL, INC.; JEFF JACINTO dba SEALIFE AQUARIUM MAINTENANCE; SEALIFE PROFESSIONAL AQUARIUM SERVICES; and DOES 1 through 25, inclusive, Defendants. AND ALL CONSOLIDATED ACTIONS. Case No.: 17CV306607 (Lead case) (Non-Lead cases 17CV310737; 17CV316575; 18CV321902; 18CV321892) Judge: Hon. Maureen A. Folan Dept.: 6 ANCIENT MARINER, INC.’S REPLY TO DEFENDANT/CROSS- COMPLAINANT/CROSS-DEFENDANT TRIPPE MANUFACTURING CO.’S OPPOSITION TO MOTION TO STRIKE OR TAX COSTS Date: June 2, 2020 Time: 9:00 am Dept: 6 Complaint Filed: February 22, 2017 Trial Date: Not Set TO THE COURT, ALL PARTIES, AND THEIR ATTORNEYS OF RECORD: Defendant ANICENT MARINER (“Ancient Mariner’) hereby submits this reply brief in support of its Motion to Strike or Tax Defendant/Counter-Claimant TRIPPE MANUFACTURING (“Trippe”) Memorandum of Costs filed in this consolidated action (the “Action”.) -1- ANCIENT MARINER, INC.’S REPLY TO DEFENDANT/CROSS-COMPLAINANT/CROSS-DEFENDANT TRIPPE MANUFACTURING CO.’S OPPOSITION TO MOTION TO STRIKE OR TAX COSTS AN Ln W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 I. TRIPPE’S OPPOSITION FAILS TO ESTABLISH THAT IT IS THE PREVAILING PARTY IN THIS MATTER Trippe’s opposition to Ancient Mariner’s Motion to Strike or Tax Costs (“Motion”) fails to properly address the key issue in this motion, e.g, that Trippe, as matter of law, cannot be the prevailing party vis-a-vis Ancient Mariner based on Trippe’s on-going Cross-Complaint against Ancient Mariner which has yet to be adjudicated or otherwise dismissed. Accordingly, Trippe’s Memorandum of Costs is premature and must be stricken since the determination of which party is the prevailing party must wait until and when there is an adjudication of its Cross-Complaint against Ancient Marnier since California law provides that there can be only one prevailing party. (See, Michell v. Olick (1996) 49 Cal.App.4th 1194, 1198-1199 - for cost awards under Code of Civil Procedure section 1032(a)(4), there can be only a single prevailing party.) In its opposition, Trippe appears to argue that the Court’s ruling on its motion for summary judgment also resulted in summary judgment as to its Cross-Complaint against Ancient Mariner but this is directly contradicted by the express language of Trippe’s Notice of Motion for Summary Judgment (“Notice”). Specifically, in its Notice, Trippe clearly limited the motion for summary judgment to the following issues: “Defendant/Cross-Complainant and Cross-Defendant TRIPPE MANUFACTURING CO. ("TRIPPE") will move the Court for an Order granting summary judgment against Plaintiffs THE DENTIST INSURANCE COMPANY ("DENTIST"), STATE FARM GENERAL INSURANCE COMPANY ("STATE FARM"), CALIFORNIA CAPITAL INSURANCE COMPANY ("CAPITAL"), NED L. NIX ("NIX"), and JOHN WILKINSON ("WILKINSON") (collectively "Plaintiffs") and Cross-Complainants SHAWN TAHERI, D.D.S., INC. ("TAHERI"), ANCIENT MARINER ("ANCIENT"), and JEFFREY L. JACINTO dba SEALIFE AQUARIUM MAINTENANCE ("SEALIFE") (collectively "Cross-Complainants") as to the following: ISSUE NO. 1: TRIPPE is entitled to summary judgment as to Plaintiffs’ Complaints since Plaintiffs will be unable to identify TRIPPE as the designer, manufacturer, distributor or seller of the Subject Power Strip. 2- ANCIENT MARINER, INC.’S REPLY TO DEFENDANT/CROSS-COMPLAINANT/CROSS-DEFENDANT TRIPPE MANUFACTURING CO.’S OPPOSITION TO MOTION TO STRIKE OR TAX COSTS AN Ln W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ISSUE NO. 2: TRIPPE is entitled to summary judgment as to Cross- Complainants’ Cross-Complaints since Cross-Complainants will be unable to identify TRIPPE as the designer, manufacturer, distributor or seller of the Subject Power Strip and, therefore, there can be no indemnity without liability.” (emphasis added) Noticeably absent from Trippe’s Notice is any reference or mention to Trippe’s Cross- Complaint against Ancient Mariner. Accordingly, the Court’s ruling on Trippe’s motion for summary judgment was, by necessity, limited to Plaintiffs’ Complaints and Cross-Complainants’ Cross-Complaints against Trippe. Once again, until and when Trippe’s Cross-Complaint against Ancient Mariner is adjudicated, there cannot be a determination by this Court as to whether Trippe or Ancient Mariner is the prevailing party as to their respective cross-complainants. This legal principal controls even if Trippe voluntarily dismisses its Cross-Complaint against Ancient Mariner. (See, Carver v. Chevron U.S.A., Inc. (2002) 118 Cal.Rptr.2d 569, 584, 97 Cal.App.4th 132, modified on denial of rehearing). In addition, the clear language of C.C.P. section 1032 also mandates this conclusion by defining the prevailing party to include four categories of parties: the party with a net monetary recovery, the defendant in whose favor a dismissal was entered, the defendant where neither plaintiff nor defendant recovers any relief, and the defendant against whom plaintiff has not recovered any relief. (§ 1032, subd. (a)(4).) Lastly, where the parties fail to recover any monetary relief, the prevailing party is determined by the court, and the award of costs is within the court's discretion. (Michell v. Olick, supra, 49 Cal. App. 4th at 1197-98) Ancient Mariner respectfully submits that the Court should exercise its discretion in this regard and deny Trippe’s admittedly false and excessive Memorandum of Costs since, as set forth in the moving papers, Ancient Mariner never sued Trippe for product liability, did not oppose Trippe’s motion for summary judgment, and only filed a compulsory cross-complaint against Trippe for indemnification, contribution, apportionment of fault, and declaratory relief after Trippe sued Ancient Mariner. Simply put, if there was ever a case where this Court should exercise its discretion and not award costs, it is the present dispute between Trippe and Ancient Marnier. 3- ANCIENT MARINER, INC.’S REPLY TO DEFENDANT/CROSS-COMPLAINANT/CROSS-DEFENDANT TRIPPE MANUFACTURING CO.’S OPPOSITION TO MOTION TO STRIKE OR TAX COSTS AN Ln W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 II. TRIPPE’S ARGUMENT THAT THE COURT’S ORDER ON THE MOTION FOR SUMMARY JUDGMENT IS BINDING ON THE ISSUE OF COSTS IS CONTRARY TO CALIFORNIA LAW. Trippe’s Opposition is also based on the incorrect assertion that because the Court’s January 16, 20202 order on Trippe’s motion for summary judgment included costs, the issue of costs vis-a-vis Trippe and Ancient Mariner has already been decided and cannot be contested. This argument is fatally flawed two main reasons. First, the Court’s Order did not make any specific finding as to whether Trippe’s could recover its costs against Ancient Mariner. Second, if Trippe’s argument was true, it would totally eliminate a party’s ability to contest costs pursuant to California Rule of Court Rule 3.1700(b)(1) which provides the means by which a party can contest costs by filing a motion to strike or to tax costs in responses to a cost memorandum. In other words, Trippe’s leap of logic would essentially invalidate California Rule of Court Rule 3.1700(b)(1) and Code of Civil Procedure section 1032. Clearly, this is not the law and the current Motion is the proper manner of deciding the merit and legitimacy of Trippe’s Memorandum of Costs, including whether Trippe is, in fact, the prevailing party for the purpose of an award of costs. III. TRIPPE HAS NOT MET ITS BURDEN OF PROOF REGARDING ITS ALLEGED COSTS Citing Ladas v. California State Auto. Ass’n (1993)19 Cal. App.4th 761, 774-776, Trippe argues that by simply filing a Memorandum of Costs, Trippe met its initial burden of proof that the costs are justified and recoverable, thereby shifting the burden to Ancient Mariner of proving that the claimed costs were not reasonable or necessary. Trippe’s citation of the holding in Ladas v. California State Auto. Ass'n, supra, conveniently ignores the full language of that decision which makes it clear that the burden in this matter is on Trippe. Specifically, that full holding expressly provides that “[i]f the items appearing in a cost bill appear to be proper charges, the burden is on the party seeking to tax costs to show that they were not reasonable or necessary. On the other hand, if the items are properly objected to, they are put in issue and the burden of proof is on the -4- ANCIENT MARINER, INC.’S REPLY TO DEFENDANT/CROSS-COMPLAINANT/CROSS-DEFENDANT TRIPPE MANUFACTURING CO.’S OPPOSITION TO MOTION TO STRIKE OR TAX COSTS AN Ln W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 party claiming them as costs.” (Id. at 774, citing Melnyk v. Robledo (1976) 64 Cal. App. 3d 618, 624; and Oak Grove School Dist. v. City Title Ins. Co. (1963) 217 Cal. App. 2d 678, 698-699) In the case at bar, Trippe’s counsel has admitted in the Opposition that his verification regarding expert witness fees and mediation costs was false and contrary to California law. Accordingly, by virtue of this admission, Ancient Mariner’s objections to the costs are, by definition, proper and the burden has shifted to Trippe to prove that the costs are appropriate to collect against Ancient Mariner. Trippe has not met this burden since it essentially argues that, with the exception of the costs of experts and the mediation, all of its costs are proper against Ancient Mariner. Trippe makes this blanket assertion despite the uncontroverted fact that Ancient Mariner never brought any product liability-based claims against Trippe and Ancient Mariner and Trippe never propounded a single set of written discovery to each other. Trippe’s blanket assertion is particularly egregious with respect to the costs for Filing and Motion Fees, Electronic Filing and Service of Process, Models, Enlargements and Photocopies of Exhibits, and “Other” since it makes no effort to actually identify those costs for filing, motions, service of process, models, enlargements and photocopies of exhibits, as well as those nebulous costs asserted under “Other,” were actually incurred as the result of any action of Ancient Mariner. Instead, Trippe simply asserts, without any supporting authority, that Ancient Mariner’s filing of a compulsory cross-complaint against Trippe for indemnification, contribution, apportionment of fault, and declaratory relief after Trippe sued Ancient Mariner somehow justifies seeking its entire costs against Ancient Mariner for defending against the allegations of product liability, claims which was never brought by Ancient Mariner. Trippe’s failure to offer any specifics in this regard provides strong evidence that Trippe cannot attribute any of these alleged costs to Ancient Marnier and it certainly has not met its burden of proof. As for the depositions, other than the deposition of Fred Getsinger, all of the listed depositions were all taken for the purpose of defending the product liability claims and the alleged damages of Drs. Nix and Wilkerson. Once again, Ancient Mariner’s compulsory counter-claim cannot be legitimately be argued to be the cause of any of those costs since they would have been -5. ANCIENT MARINER, INC.’S REPLY TO DEFENDANT/CROSS-COMPLAINANT/CROSS-DEFENDANT TRIPPE MANUFACTURING CO.’S OPPOSITION TO MOTION TO STRIKE OR TAX COSTS AN Ln W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 incurred whether or not Ancient Mariner’s filed its compulsory counter-claim in response to Trippe’s Cross-Complaint against it. IV. TRIPPE’S ARGUMENT THAT ANCIENT MARINER IS JOINT AND SEVERALLY LIABLE FOR ITS COSTS IS LEGALLY AND FACTUALLY MERITLESS In its Opposition, Trippe argues that Ancient Mariner is jointly and severally liable for Trippe’s costs, citing Acosta v. SI Corp (2005) 129 Cal.App.4th 1370, 1376. However, a review of that holding makes it abundantly clear that the decision was based on the unique factors in that litigation, which have no application to the case at bar. Specifically, in Acosta v. SI Corp., supra, a group of homeowners jointly sued SI Corporation on a single theory--product liability for an allegedly faulty mesh used in the construction of their homes--and lost. (Id. at p. 1373.) SI Corporation submitted a single costs bill for all the plaintiffs, and the plaintiffs moved to tax costs on the ground that the company failed to apportion costs among each individual plaintiff. (Ibid.) The plaintiffs argued that their claims were separate, not joint, because 101 different homes were involved in the litigation, and each plaintiff had an interest in only the home that he or she owned. (Id. atp. 1374.) Citing Code of Civil Procedure section 1032, subdivision (b), the appellate court held that a prevailing party defendant is not required to apportion costs among plaintiffs "where the plaintiffs were represented by the same law firm and pursued a single cause of action in a joint trial." (Id. at p. 1376.) The court explained that "in most cases where a defendant is entitled to costs as of right because plaintiffs took nothing in their joint action, there will be nothing to apportion. The costs are joint and several because the plaintiffs joined together (represented by the same attorney) in a single theory of liability against a defendant who prevailed. It is up to the plaintiffs in a motion to tax costs to point out that some costs are not related to the joint theory of liability, but are specific to a particular plaintiff, and it is therefore not fair to include these in a joint award." (Ibid.) The facts and legal basis for the Court of Appeal’s decision in Acosta v. SI Corp., supra, could not be more different than those in this matter. First, Ancient Mariner is not represented by -6- ANCIENT MARINER, INC.’S REPLY TO DEFENDANT/CROSS-COMPLAINANT/CROSS-DEFENDANT TRIPPE MANUFACTURING CO.’S OPPOSITION TO MOTION TO STRIKE OR TAX COSTS AN Ln W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 the same counsel as the other parties. Two, as set forth many times, Ancient Mariner has not sued Trippe for product liability. Three, there has been no joint trial and there never will be since all of the parties are adverse in this matter. Accordingly, the facts and legal reasoning behind the Court of Appeal’s decision in Acosta v. SI Corp., supra, actually dictates that Ancient Mariner cannot be held joint and severally liable for Trippe’s alleged costs under California law. Furthermore, California law is clear that “that trial courts have discretion... in allocating an n award of costs among various defendants based on their relative culpability.” Gorman v Tassajara Development Corp. (2009) 178 Cal.App.4th 44, 97-98; Sokolow v County of San Mateo (1989) 213 Cal.App.3d 231, 250. It can even constitute an abuse of discretion not to allocate fees when the “non-prevailing parties” against whom costs are sought have significantly different relative culpability. (No Oil, Inc., v Occidental Petroleum Corp. (1975) 50 Cal. App.3d 8, 28-29 [joint and several liability for costs consisting predominantly of attorney fees, as between Occidental Petroleum and defendant Landowners Association, found inappropriate “in light of the disparity between contribution of such defendants to the necessity for and burden of the litigation]). In this regard, equitable considerations justify a trial court’s apportionment of an award of costs among multiple plaintiffs in appropriate circumstances. (Golf West of Kentucky Inc. v Life Investors Inc. (1986) 178 Cal.App.3d 313, 317-318) In apportioning costs in cases involving multiple litigants, trial courts should look to the reason the costs were incurred. (Ducoing Management, Inc. v. Superior Court (2015) 234 Cal. App.4th 306, review filed, review denied.) Based on the foregoing, Trippe’s effort to convince this Court that California law actually support a ruling that Ancient Marnier should be held joint and severally liable for all of its costs provides further evidence of Trippe’s bad faith with respect to its Memorandum of Costs. V. ANCIENT MARINER, INC. WAS SUED BY TRIPPE As set forth in the moving papers, Trippe sued Ancient Mariner, Inc. in its Cross- Complaint. Trippe has never amended that Cross-Complaint to add “Ancient Mariner, a former sole proprietorship as a fictitious business name of Diane Getsinger” as a party. Plus, in Trippe’s motion for summary judgment, Trippe never identifies Ancient Mariner as “Ancient Mariner, a 7- ANCIENT MARINER, INC.’S REPLY TO DEFENDANT/CROSS-COMPLAINANT/CROSS-DEFENDANT TRIPPE MANUFACTURING CO.’S OPPOSITION TO MOTION TO STRIKE OR TAX COSTS AN Ln W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 former sole proprietorship as a fictitious business name of Diane Getsinger.” Accordingly, Ancient Mariner, Inc. was a proper moving party. However, it is ultimately irrelevant since the arguments set forth in the moving papers apply with full force to Ancient Mariner, as a whole, whether in its corporate form or as a former sole proprietorship. VI. CONCLUSION For the reasons set forth above, Trippe’s Memorandum of Costs must be stricken in its entirety since it is not the prevailing party vis-a-vis Ancient Mariner in light of the pending Cross- Complaint which had yet to be adjudicated. If Trippe’s Cross-Complaint is dismissed, even voluntarily, Ancient Mariner is arguably the prevailing party. Assuming, arguendo, that Trippe is the prevailing party, it has not met its burden of proof that any of its alleged costs are reasonable or should be allocated to Ancient Mariner, with the possible exception of the cost of transcribing Mr. Getsinger’s deposition ($1,187.25). However, even that amount should be reduced significantly since Trippe’s counsel did not take the lead in that deposition and asked comparatively few questions, only one of which addressed the Trippe product. Ancient Mariner did not oppose Trippe’s motion for summary judgment because it made no allegations of product liability. Rather, Ancient Mariner’s claims were limited to the compulsory counter-claim that was necessitated solely by Trippe’s January 29, 2018 Cross- Complaint against Ancient Mariner, which is still pending. Accordingly, Ancient Mariner respectfully asks this Court to strike Trippe’s Memorandum of Costs in its entirety, or, in the alternative, to exercise its discretion in assessing whether Trippe should really be deemed to have ‘prevailed’ over Ancient Mariner, entitling it to any costs from Ancient Mariner whatsoever. Regardless, Trippe should be awarded no more than $1,187.25 in costs against Ancient Mariner if this Court does deem Trippe the prevailing party despite the ongoing Cross-complaint and the extremely limited nature of Ancient Mariner’s compulsory counter-claim against Trippe. -8- ANCIENT MARINER, INC.’S REPLY TO DEFENDANT/CROSS-COMPLAINANT/CROSS-DEFENDANT TRIPPE MANUFACTURING CO.’S OPPOSITION TO MOTION TO STRIKE OR TAX COSTS AN Ln W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DATED: May 26, 2020 CRUSER, MITCHELL, NOVITZ, SANCHEZ, GASTON & ZIMET LLP HHP Gary S. Spitzer Attorney for Defendants ANCIENT MARINER, INC. 9. ANCIENT MARINER, INC.’S REPLY TO DEFENDANT/CROSS-COMPLAINANT/CROSS-DEFENDANT TRIPPE MANUFACTURING CO.’S OPPOSITION TO MOTION TO STRIKE OR TAX COSTS AN nn Bk W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PROOF OF SERVICE The Dentists Insurance Company v. Belkin International, Inc., et al. Santa Clara County Superior Court Case No.: 17CV306607 [Non-Lead Cases: 17CV310737, 17CV316575, 18CV321902, 18CV321892] [Defendants DIANE GETSINGER and FRED GETSINGER dba ANCIENT MARINER] I am a resident of the State of California, over the age of eighteen years, and not a party to the within action. My business address is: 800 Wilshire Boulevard, 15" Floor, Los Angeles, CA 90017. On May 26, 2020, I served the within document described as: ANCIENT MARINER, INC.’S REPLY TO DEFENDANT/CROSS- COMPLAINANT/CROSS-DEFENDANT TRIPPE MANUFACTURING CO.’S OPPOSITION TO MOTION TO STRIKE OR TAX COSTS by transmitting via OneLegal the document listed above to the email addresses of counsel on the electronic service list maintained by OneLegal for this case, on this date before 5:00 p.m. 0 by placing the document(s) listed above in a sealed envelope with postage thereon fully prepaid, in the United States mail at Los Angeles, California addressed as set forth on the attached Service List(s). 0 by personally delivering the document(s) listed above to the person(s) at the address(es) set forth on the attached Service List(s). 0 by OVERNIGHT COURIER - by placing the document(s) listed above in a sealed envelope with shipping prepaid, and depositing in a collection box for next day delivery to the person(s) at the address(es) set forth below via 0 by causing personal delivery by an agent of of the document(s) listed above to the person(s) at the address(es) set forth below. SEE ATTACHED SERVICE LIST I am readily familiar with the firm's practice of collection and processing correspondence for mailing. Under that practice it would be deposited with the U.S. Postal Service on that same day with postage thereon fully prepaid in the ordinary course of business. I am aware that on motion of the party served, service is presumed invalid if postal cancellation date or postage meter date is more than one day after date of deposit for mailing in affidavit. I declare under penalty of perjury under the laws of the State of California that the above is true and correct. [Executed on May 26, 2020, at Los Angeles, California. ( Kone $7 2 Catherine Navarro -1- PROOF OF SERVICE AN nn Bk W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 SERVICE LIST The Dentists Insurance Company v. Belkin International, Inc., et al. Santa Clara County Superior Court Case No.: 17CV306607 [Non-Lead Cases: 17CV310737, 17CV316575, 18CV321902, 18CV321892] [Defendants DIANE GETSINGER and FRED GETSINGER dba ANCIENT MARINER] Daniel R. Watkins Nicole A. Naleway WATKINS & LETOFSKY, LLP 2900 S. Harbor Blvd., Suite 240 Santa Ana, CA 92704 Tel.: (949) 476-9400 Fax: (949) 476-9407 dw @wl-llp.com; nnaleway @wl-1lp.com Counsel for Plaintiff, THE DENTISTS INSURANCE COMPANY and Defendant/Cross- Defendants, SHAWN TAHERI, D.D.S.; SHAWN TAHERI, D.D.S., M.S., INC,; and DR. SHAWN TAHERI Garry J.D. Hubert Miriam P. Maxwell YASUTAKE & ASSOCIATES 6200 Center Street, Suite 280 Clayton, CA 94517 Tel.: (925) 680-4266 Fax: (925) 680-4259 ghubert@hy-litigators.com Counsel for Plaintiff STATE FARM GENERAL INSURANCE COMPANY Sean Moriarty CESARI WERNER AND MORIARTY 75 Southgate Avenue Daly City, CA 94015 Tel.: (650) 991-5126 dmoriarty @cwmlaw.com; smoriarty @cwmlaw.com Counsel for Defendant/Cross-Defendant JEFF JACINTO dba SEALIFE AQUARIUM MAINTENANCE Kevin J. Price MOKRI VANIS & JONES 4100 Newport Place Drive, Suite 840 Newport Beach, CA 92660 Tel.: (949) 226-7040 Fax: (949) 226-7150 kprice@mvjllp.com Counsel for Defendant/Cross-Defendant TRIPPE MANUFACTURING CO. D- PROOF OF SERVICE AN nn Bk W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Eric M. Schroeder Amanda R. Stevens SCHROEDER LOSCOTOFF STEVENS LLP 7410 Greenhaven Drive, Suite 200 Sacramento, CA 95831 Tel.: (916) 438-8300 Fax: (916) 438-8306 emschroeder @calsubro.com; astevens @calsubro.com Counsel for Plaintiff CALIFORNIA CAPITAL INSURANCE COMPANY Jeffrey A. Baruh Matthew Minae ADELSON, HESS & KELLY, APC 577 Salmar Avenue, Second Floor Campbell, CA 95008 Tel.: (408) 341-0234 jbaruh @ahklaw.com; mminae @ahklaw.com Counsel for Plaintiff JOHN WILKINSON, D.D.S. Richard B. Vaught RBYV LAW FIRM 14440 Big Basin Way, Suite 15 Saratoga, CA 95070 Tel.: (408) 275-8523 richard @rbvlawfirm.com Counsel for Plaintiff NED L. NIX 3- PROOF OF SERVICE