Opposition Objections

Cal. Super. - 6th Dist.April 16, 2021

\DOONQUI-PWNt-k NNNNNNNNNt-th-tr-tt-th-tr-tt-th-tr-tt-t OONONUI$UJNHOKOOON©U14>UJNHO 21 CV379921 Santa Clara - Civil Amy Carlson (SBN 213294) CARBONE, SMITH & KOYAMA 1735 Technology Drive, Suite 500 San Jose, CA 951 10-1390 Telephone: (408) 392-8654 Facsimile: (408) 983-0780 Email: Amy.Carlson@csaa.com ATTORNEYS FOR DEFENDANT AIFENG SU Electronically Filed by Superior Court of CA, County of Santa Clara, on 11/2/2021 2:34 PM Reviewed By: F. Miller Case #21 CV379921 Envelope: 7587056 SUPERIOR COURT OF CALIFORNIA, COUNTY OF SANTA CLARA UNLIMITED CIVIL JURISDICTION Kent Taylor, Case N0. 2 1CV379921 Plaintiff, DEFENDANTS' OPPOSITION TO MOTION PURSUANT TO CCP V. SECTION 128.7 Aifeng Su, AAA Insurance Company, and Date: November 16, 2021 DOES 1 to 10, Time: 9:00am Defendants. Dept: 20 Complaint Filed: 4/16/2021 Defendants, AAA and Aifeng Su hereby submit this opposition t0 plaintiff’ s purported motion for sanctions under California Code of Civil Procedure section 128.7. Defendant, AAA is specially appearing in this motion t0 avoid sanctions but does not submit t0 this court’s jurisdiction as it was improperly named as a defendant under California law. Defendant Aifeng Su has submitted a motion t0 set aside default based on the representation and proof that he was served improperly through the substituted service used for AAA (Le. Defendant Su was served through CT Corporation instead 0f in person). Most importantly, this motion is improper under the plain language of C.C.P. section 128.7. The motion was served and filed at the same time in Violation of section 128.7(c)(1). Further, the motion was served Without proper notice under C.C.P. section 1005(b)- DEFENDANTS' OPPOSITION TO MOTION PURSUANT TO CCP SECTION 128.7 . Miller \DOONQUI-PWNt-k NNNNNNNNNt-th-tr-tt-th-tr-tt-th-tr-tt-t OONONUI$UJNHOKOOON©U14>UJNHO the motion was mailed on October 20, 2021. The 16th court day before the hearing was October 22, plus five calendar days would make the service to be done n0 later than October 15. Which time the offending party is permitted 21 days to Withdrawal or correct the offending document. In this case, Mr. Taylor served and filed the motion under 128.7. In fact, he filed A. SECTION 128.7 REQUIRES A “SAFE-HARBOR” TO PROVIDE OPPORTUNITY TO WITHDRAWAL THE OFFENSIVE DOCUMENT California Code 0f Civil Procedure section 128.7 provides for a “safe-harbor” during the document 0n October 18, 2021 and served it two days later by mail. (c) (1) A motion for sanctions under this section shall be made separately from other motions 0r requests and shall describe the specific conduct alleged t0 Violate subdivision (b). Notice ofmotion Shall be served as provided in Section 1 01 0, but shall not be filed with 0r presented t0 the court unless, within 21 days after service 0fthe motion, 0r any other period as the court may prescribe, the Challenged paper, Claim, defense, contention, allegation, 0r denial is not withdrawn 0r appropriately corrected. If warranted, the court may award to the party prevailing on the motion the reasonable expenses and attorney’s fees incurred in presenting or opposing the motion. Absent exceptional circumstances, a law firm shall be held jointly responsible for Violations committed by its partners, associates, and employees. (2) On its own motion, the court may enter an order describing the specific conduct that appears to Violate subdivision (b) and directing an attorney, law firm, or party to show cause Why it has not violated subdivision (b), unless, within 21 days of service 0f the order to show cause, the challenged paper, claim, defense, contention, allegation, 0r denial is Withdrawn 0r appropriately corrected. (emphasis added) Plaintiff’ s apparent reason for filing this motion is that defendants have filed a motion to set aside the default as to AAA and Aifeng Su and a demurrer as to CSAA 1G. Unfortunately, the motions were delayed in the process and DEFENDANTS' OPPOSITION TO MOTION PURSUANT TO CCP SECTION 128.7 -2- \DOONQUI-PWNt-k NNNNNNNNNt-th-tr-tt-th-tr-tt-th-tr-tt-t OONONUI$UJNHOKOOON©U14>UJNHO just recently received court dates for December 16, 2021 in this department. As this court is aware, in Santa Clara County, motions that are filed do not get hearing dates until the document makes its way through the system and a date is assigned. The amended notice has been served on plaintiff so he will have the dates as he is demanding in his purported m0tion.1 As noted in the motions to set aside the defaults, AAA is an improper defendant and a demurrer Will need t0 be filed once the default is set aside. Defendant Su was not properly served and an answer Will be filed once the default is set aside. The information regarding the service 0f Su is in the court’s file. The fact AAA is an improper defendant is a matter 0f California law. Defendant, Su Will answer the complaint once the motion t0 set aside default is granted. As noted in the motion t0 set aside, not part 0f this motion, Defendant Su was served through CT Corp-the agent for service of process for the insurance companies. With regard t0 Defendants AAA and CSAA, they are improper defendants under California law. The argument for such impropriety is outlined in the motion t0 set aside and the demurrer t0 be heard on December 16. More specifically, California law does not recognize a negligence cause 0f action by a plaintiff against an insurance company in connection With its investigation 0f any insurance claim. Plaintiff has n0 legal causes 0f action against AAA 0r CSAA and thus motions were required Without plaintiff” s stipulation to dismiss the insurance companies from the complaint. Despite the many efforts and explanations by Defense counsel, plaintiff refuses t0 dismiss the insurance companies from the complaint. Instead, he improperly seeks sanctions against defense counsel for providing a zealous defense 0f her 1 For the court’s ease 0f reference, the filed motions are attached as exhibits to the Declaration 0fAmy Carlson in Support 0f this Opposition. DEFENDANTS' OPPOSITION TO MOTION PURSUANT TO CCP SECTION 128.7 -3- \DOONQUI-PWNt-k NNNNNNNNNt-th-tr-tt-th-tr-tt-th-tr-tt-t OONONUI$UJNHOKOOON©U14>UJNHO clients. Defendants do not ask this court to issue sanctions against plaintiff. The only request is that the motion be denied, and an instruction given to plaintiff that the insurance companies are not proper defendants? DATED: November 1, 2021 CARBONE, SMITH & KOYAMA /s/ Amy Carlson Amy Carlson Attorneys for Defendant Aifeng Su 2 If the court were s0 inclined, encouraging the plaintiff t0 retain an attorney would also be helpful in getting this case heard on its merits. DEFENDANTS' OPPOSITION TO MOTION PURSUANT TO CCP SECTION 128.7 -4- \DOONQUI-PWNt-k NNNNNNNNNt-th-tr-tt-th-tr-tt-th-tr-tt-t OONONUI$UJNHOKOOON©U14>UJNHO Taylor V. Su Santa Clara County Superior Court Case No. 21CV379921 PROOF OF SERVICE I, Danielle A. Arena, am a citizen 0f the United States and employed by the office 0f Carbone, Smith & Koyama located at 1735 Technology Drive, Suite 500, San Jose, CA 951 10-1390. I am over the age of 18 years and am not a party t0 this action. On the below date, I served the accompanying DEFENDANTS' OPPOSITION TO MOTION PURSUANT TO CCP SECTION 128.7 0n the parties in said action addressed as follows: Kent Taylor P.O. BOX 61 165 Palo Alto, CA 94306-6165 In Pro Per Plaintiff KentTaylor59.kt@gmai1.com BY OVERNIGHT DELIVERY: By enclosing the document in an envelope or package provided by Federal Express. The envelope 0r package was placed for collection and overnight delivery at an office or regularly utilized drop box 0f an overnight carrier. I declare under penalty 0f perjury under the laws 0f the State 0f California that the foregoing is true and correct. I declare that I am employed in the offices 0f a member 0f the bar of this court at whose direction the service was made. Dated: November 2, 2021 /s/ Danielle A. Arena Danielle A. Arena DEFENDANTS' OPPOSITION TO MOTION PURSUANT TO CCP SECTION 128.7 -5-