Memorandum Points and AuthoritiesCal. Super. - 6th Dist.February 14, 2020NICHOLAS J. LEONARD, Bar No. 260322 LOW McKINLEY Ec SALENKO, LLP 2150 River Plaza Drive, Suite 250 Sacramento, CA 95833 Telephone: (916) 231-2400 Facsimile: (916) 231-2399 Attorneys for Defendant CHRISTOPHER Q. VIRAY DENTAL CORPORATION SUPERIOR COURT OF CALIFORNIA, COUNTY OF SANTA CLARA 10 12 13 14 15 16 SOPHIA LOREN HARPER, Plaintiff, vs. CHRISTOPHER Q. VIRAY CORPORATION, Defendant. ) ) ) ) ) ) DENTAL) ) ) ) ) ) Case No.: 20SC082620 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT AND INSURERIS APPEAL OF THE DENIAL OF MOTION TO VACATE SMALL CLAIMS JUDGMENT DATE: September 23, 2020 TIME: 10:00 a.m. DEPT: 22 17 18 19 20 21 22 23 24 25 '6 27 28 I. INTRODUCTION On October 31, 2019, Plaintiff SOPHIA LOREN HARPER filed a Complaint in the San Jose County Superior Court, Small Claims Division, against Defendant CHRISTOPHER Q. VIRAY DENTAL CORPORATION dba SOUTH BAY DENTAL CENTER and ORTHODONTICS. The Complaint alleges that South Bay Dental "misdiagnosed my tooth ¹14 and tooth ¹15 resulting in me losing my tooth ¹14." On December 17, 2019, the Court entered a default judgment in Plaintiffs favor for $9,479.13 in principal and $225 in costs. On February 10, 2020, the Court denied Defendant's Motion to Vacate the Small Claims Judgment. As such, the merits of Plaintiff's allegations against Defendant were never heard. Defendants and its insurer Kinsale Insurance Company now Appeal the Denial of the Motion to Vacate on the following grounds: (1) Plaintiff failed to properly serve Defendant pursuant to Code of Civil Procedure sections 416.10 and 415.20(a); (2) good cause exists to MEMORANDUM OF POINTS AND AUTHORITIES IN SI IPPORT AF DFFFNTIANT AND INCI rr! FR 'C A FFFAr nF THF Electronically Filed by Superior Court of CA, County of Santa Clara, on 9/15/2020 3:15 PM Reviewed By: R. Aragon Case #20SC082620 Envelope: 4935744 20SC082620 Santa Clara - Civil R. Aragon vacate the judgment pursuant to Code of Civil Procedure section 116.730 due to Plaintiffs improper service and Defendant's unavailability; (3) Defendant's insurance carrier is entitled to appeal the judgment under Code of Civil Procedure section 116.710; and (4) if this matter is not heard on its merits, great prejudice would result to Plaintiff's treating dentists as any judgment would be reported to the California Dental Board despite no evidence of improper care. Furthermore, Plaintiffs allegations of malpractice are without merit because Defendant's care and treatment was proper and any alleged improper care did not cause or contribute to any injuries. II. FACTUAL BACKGROUND 10 i. Dental care 12 13 14 15 16 17 19 20 21 22 23 24 25 26 27 Plaintiff Sophia Harper has been a patient of Defendant since December 2015. (See Declaration of Melvyn D. Wilson, D.D.S. (hereafter "Wilson Declaration"), which is Exhibit J of the Declaration ofNicholas J. Leonard (hereafter "Leonard Declaration"), tl 3(a).) On August 26, 2018, Melvyn D. Wilson, D.D.S. (hereafter "Dr. Wilson") performed a dental exam of Plaintiff and reviewed x-rays taken at this visit. Plaintiff also received a cleaning at this visit. Plaintiff reported no issues with the upper left teeth including teeth numbers 14 and 15. Based on Dr. Wilson's examination, his review of the x-rays, and the lack of pain complaints, he did not recommend any special care for her upper left teeth at this time and Plaintiff was instmcted to return for her next regular visit. (Wilson Declaration, $ 3(c).) Plaintiff was subsequently seen on October 28, 2018; November 1, 2018; and November 11, 2018. She did not report any issues with the upper left teeth including teeth numbers 14 and 15 during these visits. (Wilson Declaration, $ 3(d).) On January 23, 2019, Plaintiff reported pain in her upper left teeth. She was given an endodontic referral for further treatment. (Wilson Declaration, $ 3(e).) On February 4, 2019, Plaintiff was treated at Greenroot Endodontics //s Microsurgery. Tooth number 14 was noted to have a previous root canal with a large area of FARL extending to tooth number 13. She also seemed to have extrusion of the obturation material in the coronal 28 2 MsMoRaNouM oF sorNrs aNo aurrrorurrss rN sussoRr or r&ssENoaNr aMo rNsrrrrsr' apr Far. os rrrs third of MB root indicating a possible perforation/vertical root fracture. (Wilson Declaration, $ 3(t) ) Due to the issues with tooth number 14's previous root canal, Plaintiff had tooth number 14 extracted on February 13, 2019. The previous root canal was not performed at South Bay Dental. (Wilson Declaration, $ 3(g).) On August 5, 2019, Dr. Wilson delivered a bridge from tooth number 13 to tooth number 15 to fill the area left by the extraction of tooth number 14. (Wilson Declaration, $ 3(h).) 10 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 ii. Procedural background On November 25, 2019, Plaintiff filed the Proof of Service in this matter. In the Proof of Service, Phillip Erkenbrack declared that he served Defendant's agent Christopher Q. Viray through substitute service by giving a copy of Plaintiffs Claim and ORDER to Go to Small Claims Court with a Notice to Litigants to "Brittany Dezia-Employee" at 2505 Berryessa Road, San Jose, CA 95132. Ms. Dezia allegedly stated "Christopher Viray was not in at the moment." Mr. Erkenbrack states he also mailed copies of these documents to Christopher Viray at the same address. (Leonard Declaration, $ 2 and Exhibit A.) At all relevant times, Christopher Q. Viray was Defendant's Agent for Service of Process and his office address has been 79 Dempsey Road, Milipitas, California, 95035. This information was and still is registered with the California Secretary of State. Dr. Viray's office address was never 2505 Berryessa Road, San Jose, CA 95132 and at no time was this address registered as Defendant's address for its Agent for Service of Process with the California Secretary of State. (See the Declaration of Chirstopher Q. Viray which is Exhibit B to the Leonard Declaration and Leonard Declaration $ 3.) On or around December 11, 2019, Dr. Viray became aware that a small claims hearing had been scheduled for December 17, 2019. On December 13, 2019, counsel was retained by Defendant's insurer to assist him preparing the defense of this claim. Defense counsel submitted a letter to the Court noting that Dr. Viray was not available for the hearing scheduled because he was on vacation. Defense counsel also left telephone messages with the Court's Small Claims 28 3 MEMORANDUM OF POINTS AND AUTHORITIES IN SIIPPORT OF DEFENDANT ANTI INSI IS FS'S APPFAI OF THF 1 Advisor and filled out the on-line form requesting a continuance of the scheduled trial. (Leonard 2 Declaration, /[4 and Exhibit C.) On December 16, 2019, Defense counsel spoke with Plaintiff to inform her of Dr. Viary's 4 unavailability and that a continuance was requested. She agreed to continue the small claims 5 trial hearing to a time when Dr. Viray was available. (Leonard Declaration, $ 5 and Exhibit D.) On December 18, 2019, the Court mailed a Notice of Entry of Judgment awarding 7 Plaintiff $9,479.13 in principal and $225 in costs to Defendant at the incorrect address of 2505 8 Berryessa Road, San Jose, CA 95132. As noted above, this address has never been Dr. Viray's 9 office address and at no time was this address registered as Defendant's address for its Agent for 10 Service of Process with the California Secretary of State. The incorrect address was provided by 11 Plaintiff on her original Claim and Order. (Leonard Declaration, $ 6 and Exhibit A and E.) 12 On January 14, 2020, Defense counsel filed by overnight delivery a Notice of Motion to 13 Vacate (Cancel Judgment) with Attachments to the Court. FEDEX Tracking information 14 confirmed the documents were delivered and signed for by the Court on January 15, 2020 at 9:12 15 a.m. (Leonard Declaration, $ 7 and Exhibit F.) 16 After discovering the Court that the filing had been rejected, Defense counsel 17 electronically filed a Notice of Motion to Vacate (Cancel) Judgment on January 22, 2020. At the 18 hearing on February 10, 2020, the Court denied the Motion to Vacate. The Judgment does not 19 explain the reason for the denial. (Leonard Declaration, $ 8 and Exhibit G.) 20 On February 14, 2020, Defendant filed a Notice of Appeal of the Denial of the Motion to 21 Vacate the Small Claims Judgment. (Leonard Declaration, $ 9 and Exhibit FL) 22 On February 20, 2020, Defendant's insurance company Kinsale also filed a Notice of 23 Appeal noting: "The Judgment against defendant exceeds $2,500 and the policy of insurance 24 with the defendant covers the matter to which the judgment applies." (Leonard Declaration, $ 10 25 and Exhibit I.) 26 Plaintiff has never provided any evidence that a dentist was critical of any of Defendant's 27 care or that any negligent care caused her injury. If this matter is not heard on its merits, great 28 prejudice would result to Plaintiff s treating dentists as California Business and Professions Code MPMAR ANT!I IM AP PAINTC DNTI DIITNAPITIPC IN CI IDDAP TAP APPDI IADNT d CIA INDI IDDD'C section 801(c) requires insurers that provide professional liability insurance to dentists report to the Dental Board of California any settlement or award over $ 10,000. III. LEGAL ARGUMENT For the following reasons, Defendant seeks to have this matter heard on its merits. a. Plaintiff failed to properly serve Defendant pursuant to Code of Civil Procedure sections 416.10 and 415.20(a) Pursuant to Code of Civil Procedure section 416.10: A summons may be served on a corporation by delivering a copy of the summons and the complaint by any of the following methods: 10 (a) To the person designated as agent'or service of process as provided by any provision in Section 202, 1502, 2105, or 2107 of the Corporations Code (or Sections 3301 to 3303, inclusive, or Sections 6500 to 6504, inclusive, of the Corporations Code, as in effect on December 31, 1976, with respect to corporations to which they remain applicable). 12 13 14 15 (b) To the president, chief executive officer, or other head of the corporation, a vice president, a secretary or assistant secretary, a treasurer or assistant treasurer, a controller or chief financial officer, a general manager, or a person authorized by the corporation to receive service of process.... Pursuant to Code of Civil Procedure section 415.20(a): 16 17 18 19 20 In lieu of personal delivery of a copy of the summons and complaint to the person to be served as specified in Section 416.10, 416.20, 416.30, 416.40, or 416.50, a summons may be served by leaving a copy of the summons and complaint during usual office hours in his or her office or, if no physical address is known, at his or her usual mailing address, other than a United States Postal Service post office box, with the person who is apparently in charge thereof, and by thereafter mailing a copy of the summons and complaint by first-class mail, postage prepaid to the person to be served at the place where a copy of the summons and complaint were left.... 21 Under Corporations code section 17701.16(b): 22 23 24 25 26 Personal service of a copy of any process against the limited liability company or the foreign limited liability company by delivery (I) to any individual designated by it as agent, or (2) if the designated agent is a corporation, to any person named in the latest certificate of the corporate agent filed pursuant to Section 1505 at the office of the corporate agent, shall constitute valid service on the limited liability company or the foreign limited liability company. No change in the address of the agent for service of process or appointment of a new agent for seivice of process shall be effective until an atnendment to the statement described in Section 17701.14 is filed.... 27 28 Pursuant to Code of Civil Procedure section 116.740(a), "[i]f the defendant was not properly served as required by Section 116.330 or 116.340 and did not appear at the hearing in 10 12 13 14 15 16 17 18 19 20 21 22 23 24 the small claims court, the defendant may file a motion to vacate the judgment with the clerk of the small claims court." Pursuant to Code of Civil Procedure section 116.740(a), Defendant's Motion to Vacate "shall be filed within 180 days after the defendant discovers or should have discovered that judgment was entered against the defendant." While the hearing and disposition of a small claims action shall be informal, due process constraints nevertheless apply to small claims matters. (Bricker v. Superior Court (2005) 35 Cal.Rptr.3d 7, 133 Cal.App.4th 634. "When a defendant challenges the court's personal jurisdiction on the ground of improper service of process the burden is on the plaintiff to prove ... the facts requisite to an effective service." (Summers v. McClanahan (2006) 140 Cal.App.4th 403, 413 (internal quotes omitted); see I ebel v. Mai (2012) 210 Cal.App.4th 1154, 1163.) As shown above, Plaintiff's Claim and Order to Go to Small Claims Court with a Notice to Litigants was given to "Brittany Dezia-Employee" at 2505 Berryessa Road, San Jose, CA 95132 and later mailed to the same address. (Leonard Declaration, $ 2 and Exhibit A.) However, Christopher Q. Viray was Defendant's Agent for Service of Process and his office address was 79 Dempsey Road, Milipitas, California, 95035 at all relevant times. This information was and still is registered with the California Secretary of State. Dr. Viray's office address was never 2505 Berryessa Road, San Jose, CA 95132 and at no time was this address registered as Defendant's address for its Agent for Service of Process with the California Secretary of State. (See the Declaration of Chirstopher Q. Viray which is Exhibit B to the Leonard Declaration and Leonard Declaration tt 3.) As such, Defendant was never properly served in this matter. Defendant timely filed a Notice of Motion to Vacate (Cancel Judgment) in January 2020, well within the 180 days allowed by Code of Civil Procedure section 116.740(a). As such, the Court's denial of the Motion to Vacate the December 17, 2019 default judgment was improper pursuant to Code of Civil Procedure section 116.740(a). 25 26 b. Good cause exists to vacate the judgment pursuant to Code of Civil Procedure section 116.730 due to PlaintifPs improper service and Defendant's unavailability 27 28 Even without improper service by Plaintiff "[a] defendant who did not appear at the hearing in the small claims court may file a motion to vacate the judgment with the clerk of the 10 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 small claims court... within 30 days after the clerk has mailed notice of entry of the judgment to the parties." (Code of Civil Procedure section 116.730(a).) "Upon a showing of good cause, the court may grant the motion to vacate the judgment." (Code of Civil Procedure section 116.730(c).) Here, on or around December 11, 2019, Dr. Viray became aware that a small claims hearing had been scheduled for December 17, 2019. On December 13, 2019, counsel was retained by Defendant's insurer to assist him in preparing the defense of this claim and counsel immediately submitted a letter to the Court noting that Dr. Viray was not available for the hearing scheduled because he was on vacation. Defense counsel also left telephone messages with the Court's Small Claims Advisor and filled out the on-line form requesting a continuance of the scheduled trial. (Leonard Declaration, II 4 and Exhibit C.) On December 16, 2019, Defense counsel spoke with Plaintiff to inform her of Dr. Viary's unavailability and informed her a continuance was requested. She agreed to continue the small claims trial hearing to a time when Dr. Viray was available. (Leonard Declaration, f[ 5 and Exhibit D.) However, Plaintiff proceeded to obtain a default judgment for $9,479.13 plus $225 in costs. The above sequence of events shows good cause to vacate the default judgement and hear this merits of this matter. Furthermore, due to Plaintiff providing the Court with Defendant's incorrect address, the Court mailed a Notice of Entry of Judgment on December 18, 2019 to the incorrect address of 2505 Berryessa Road, San Jose, CA 95132. As noted above, this address has never been Dr. Viray's office address and at no time was this address registered as Defendant's address for its Agent for Service of Process with the California Secretary of State. (Leonard Declaration, f 6 and Exhibit A and E.) On January 14, 2020, Defense counsel filed by overnight mailed a Notice of Motion to Vacate (Cancel Judgment) with Attachments to the Court. FEDEX Tracking information confirmed the documents were delivered and signed for by the Court on January 15, 2020 at 9:12 a.m. (Leonard Declaration, $ 7 and Exhibit F.) After being informed by the Court that the filing had been rejected, Defense counsel electronically filed the Motion a Notice of Motion to Vacate (Cancel) Judgment on January 22, 2020. 27 28 c. Defendant's insurance carrier Kinsale is entitled to appeal the judgment under Code of Civil Procedure section 116.710 Pursuant to Code of Civil Procedure section 116.710(c), "the insurer of the defendant 4 may appeal the judgment to the superior court in the county in which the matter was heard if the 5 judgment exceeds two thousand five hundred dollars ($2,500) and the insurer stipulates that its 6 policy with the defendant covers the matter to which the judgment applies." As explained in 7 Pacific Pioneer Insurance Company v. Superior Court (2020) 44 Cal. App. 5th 890, "[w]e 8 conclude the insured's failure to appear in small claims court does not annul the appeal right 9 conferred upon the insurer by Code of Civil Procedure section 116.710, subdivision (c). (Ibid, at 10 pp. 892.) The Pacific Pioneer court explained the legislative intent of section 116.710: 12 13 14 We rarelv see such clear statements of legislative intent. (See JA. Jones Construction Co. v. Superior Court(1994) 27 Cal.Ann.4th 1568. 1579, 33 Cal.Rptr.2d 206 I'imnortance of clear statement of inteiit in leaislative historvl.'I The Legislature exnressed its intent that insurers be able to nrotect themselves in situations where their insureds are "unable or not motivated" to defend a small claims action. That intent informs and reinforces our reading of the lanuuaue discussed above. 15 (Ibid. at pp. 894.) Here, on February 20, 2020, Defendant's insurance company Kinsale also 16 filed a Notice of Appeal noting: "The Judgment against defendant exceeds $2,500 and the policy 17 of insurance with the defendant covers the matter to which the judgment applies." (Leonard 18 Declaration, $ 10 and Exhibit I.) As such, Kinsale is entitled to have this matter heard on its 19 merits pursuant to Code of Civil Procedure section 116.710, subdivision (c). 20 21 22 d. If this matter is not heard on its merits, great prejudice would result to PlaintifPs treating dentists as any judgment would be reported to the California Dental Board despite no evidence of any improper care Business and Professions Code section 801(c) states: 23 24 25 26 Everv insurer nrovidina professional liabilitv insurance to a dentist licensed nursuant to Chanter 4 (commencina with Section 16001 shall send a complete report to the Dental Board of California as to anv settlement or arbitration award over ten thousand dollars ($ 10.0001 of a claim or action for damages for death or nersonal iniurv caused bv that person's negligence. error, or omission in practice, or rendering of unauthorized professional services.... 27 Here, Plaintiff has never provided any evidence that a dentist was critical of any of Defendant's 28 care or that any negligent care caused her injury. If this matter is not heard on its merits, great prejudice would result to Plaintiff s treating dentists as California Business and Professions Code section 801(c) requires insurers that provide professional liability insurance to dentists report to the Dental Board of California any settlement or award over $ 10,000. e, PlaintifPs claims have no merit because Defendant's care and treatment of Plaintiff was proper Negligence on the part of a medical provider will not be presumed; it must be affirmatively proven. (Huffman v. Lindquist (1951) 37 Cah2d 465, 474; Louie v. Chinese 10 12 13 14 15 16 17 18 19 20 21 22 23 24 Kospiiul Association (1967) 249 Cal.App.2d 774.) "Where the results of negligence on the part of a physician or dentist are peculiarly within the knowledge of experts, the testimony of those experts is a necessary element of a plaintiffs case." (Masrro v. Kennedy (1943) 57 Cal. App. 2d 499, 504.) For medical/dental care, "[t]he question as to whether there was proper care in the treatment of a particular case is one to be determined by the opinions of experts. The failure to use such care can be established only by their testimony." (Simone v. Sabo (1951) 37 Cal. 2d 253, 257.) Here, Defendant has provided a declaration from Melvyn D. Wilson, D.D.S. Dr. Wilson has been a general practice dentist licensed to practice in the State of California since 1981. (See Wilson Declaration, $ 1.) Dr. Wilson explains how the care provided to Plaintiff was proper: 4. The care provided to Plaintiff by South Bay Dental Center and Orthodontics was well within the standard of care. When I saw Plaintiff on August 26, 2018, she did not report any complaints involving her upper left teeth including teeth number 14 and 15. I also performed a full exam at this time and reviewed x-rays. Based on my examination, my review of the x-rays, and the lack of pain complaints, no further care for the upper left teeth was indicated at this time. Furthermore, Plaintiff did not report any issues with her upper left teeth on October 28, 2018; November 1, 2018; and November 11, 2018. On January 23, 2019, Plaintiff reported pain in her upper left teeth. She was promptly referred for endodontic care and properly had tooth number 14 extracted on February 13, 2019 due to issues with a preexisting root canal that was not performed at South Bay Dental Center and Orthodontics. On August 5, 2019, I appropriately delivered a bridge from tooth number 13 to tooth number 15 to fill the area of the extraction. I have also reviewed all of Plaintiff's records from South Bay Dental Center and Orthodontics and see no evidence of improper care. 25 26 27 28 (See Wilson Declaration, tt 4.) f. PlaintifPs claims further have no merit because legal causation does not exist Plaintiff also has the burden of proving that Defendant's alleged wrongful acts were a substantial factor in causing her alleged injuries. (CACI Nos. 400, 430, 431.) "The law is well settled that in a personal injury action causation must be proved within a reasonable medical probability based upon competent expert testimony. Mere possibility alone is insufficient to establish a prima facie case.... There can be many possible 'causes,'ndeed, an infinite number of circumstances which can produce an injury or disease. A possible cause only becomes 'probable'hen, in the absence of other reasonable causal explanations, it becomes more likely than not that the injury was a result of its action." 5 (Jones v. Ortho Pharmaceutical Corp. (1985) 163 Cal.App.3d 396, 402-403.) A plaintiff cannot 6 recover where there is only a mere possibility that a defendant's wrongful acts caused the wrong. 7 (Simmons v. West Covina Clinic (1989) 212 Cal.App.3d 696, 702.) Plaintiff must prove by a 8 reasonable degree of medical probability that the wrongful act or omission caused the injury. 9 (Alefv. Alta Bates Hospital (1992) 5 Cal.App.4'" 208, 216.) Here, Dr. Wilson also explained that 10 the care provided to Plaintiff by Defendant did not cause or contribute to Plaintiff's injuries: 12 13 14 15 16 17 18 5. The care provided to Plaintiff by South Bay Dental Center and Orthodontics did not cause or contribute to any of Plaintiff's injuries. Notably, Plaintiff alleges that, on August 26, 2018, "the Defendant misdiagnosed my tooth,¹ 14 and tooth ¹15, resulting in my losing my tooth ¹14." However, even if an issue with tooth number 14 was identified on August 26, 2018, Plaintiff still would have required extraction of tooth number 14. Notably, the issues with tooth number 14 was due to a preexisting root canal performed by another provider prior to when she began receiving care at South Bay Dental Center and Orthodontics. The previous root canal had a large area of PARL extending to tooth number 13 and tooth number 14 had extrusion of the obturation material in the coronal third of MB root indicating a possible perforation/vertical root fracture. Regardless of when this issue was identified, Plaintiff would have required extraction of tooth number 14. As such, any alleged improper care by South Bay Dental Center and Orthodontics did not cause or contribute to any of Plaintiff s injuries. 19 (See Wilson Declaration, $ 4.) Plaintiff will not be able to provide expert testimony contrary to 20 Dr. Wilson's testimony. 21 22 IV. CONCLUSION For the reasons stated above, Defendant requests the Court grant it's Appeal of the Denial 23 of Defendant's Motion to Vacate the Small Claims Judgment and have this matter heard on its 24 merits. 25 Dated: September 15, 2020 26 LOW McKINLEY k SALENKO, LLP 27 28 ICH LAS J. LEONARD 10 Case Natne: Harper v. Christopher Q. Viray Dental Corp. (Small Claims) Case No.: 20SC082620 PROOF OF SERVICE (CCP 1013; CRC 3.1300, 10.503) I, Tanya L. Gomes, declare: 13 I am over the age of eighteen years and not a party to the within cause; am employed in the County of Sacramento; and my business address is 2150 River Plaza Dr., Ste. 250, Sacramento, CA 95833 On September 15, 2020, I served the within MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT AND INSURER'S APPEAL OF THE MOTION TO VACATE SMALL CLAIMS JUDGMENT, which was produced on recycled paper, on the parties in said cause by: 15 16 BY MAIL: I placed the envelope for collection and mailing, following our ordinary business practices. I am readily familiar with this business'ractice for collecting and processing correspondence for mailing. On the same day that correspondence is placed for collection and mailing, it is deposited in the ordinary course of business with the United States Postal Service, in a sealed envelope with postage fully prepaid. 17 18 19 Sophia Loren Harper 1141 Matterhorn Drive San Jose, CA 95132 Counsel for Plaintiff 20 21 22 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 September 15, 2020, at Sacramento, California. 23 24 Tanya omes 25