Request Judicial Notice

Cal. Super. - 6th Dist.March 30, 2021

10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 21 CV381 444 Santa Clara - Civil Christopher K. Karic (SBN - 184765) Corey M. Timpson (SBN - 328929) SELLAR HAZARD & LUCLA A Professional Law Corporation 201 North Civic Drive, Suite 145 Walnut Creek, CA 94596 Telephone: (925) 938- 1430 Facsimile: (925) 256-7508 Email: Attorneys for Defendant: ADVOQUE Electronically Filed by Superior Court of CA, County of Santa Clara, on 7/30/2021 2:54 PM Reviewed By: L. Quach-Marcella Case #21 CV381444 ckaric@sellarlaw.com; ctimpson@sellarlaw.com EHVeIOPe: 6964433 SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA PAPER 360, INC., a California corporation Plaintiff. VS. ADVOQUE, a California corporation; and DOES 1-10, inclusive, Defendants. Case No.2 21CV381444 REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF DEFENDANT ADVOQUE’S DEMURRER TO PLAINTIFF PAPER 360, INC.’S COMPLAINT Hearing Date: TBB 12/02/21 Timez. ?BB 9:00 AM Locatlon: T-BD- Department 7 Action Filed: March 30, 2021 Trial Date: None Set PLEASE TAKE NOTICE that on the above-captioned date and time, or as soon thereafter as counsel may be heard in the above-captioned Court, Defendant Advoque Will and hereby does move the Court pursuant to California Evidence Code sections 452 and 453, to take judicial notice 0f the following facts and documents in support of their Demurrer to Paper 360, Inc.’s Complaint: /// /// /// /// REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF DEFENDANT ADVOQUE’S DEMURRER TO PLAINTIFF PAPER 360, INC.’S COMPLAINT na 10 n 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 EXHIBIT DOCUMENT DESCRIPTION FILED/RECORDED/DATED A COMPLAINT March 30, 2021 A true and correct copy of the above-mentioned exhibit is attached hereto. Evidence Code section 452 states in relevant part that a court may take judicial notice of “(a) [t]he decisional, constitutional, and statutory law of any state 0f the United States and the resolutions and private acts of the Congress of the United States and of the Legislature 0f this state, . . . (d) [r]ecords of (1) any court of this state or (2) any court of record 0f the United States or of any state 0f the United States, . . . and (h) [flacts and propositions that are not reasonably subject t0 dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy.” (EVid. Code § 452.) The document attached as an exhibit hereto fall Within these categories. Plaintiff’ s Complaint is a record 0f this court and is therefore properly judicially noticed. Evidence Code section 453 states that a court is required to “take judicial notice of any matter specified in Section 452 if a party requests it and: (a) [g]ives each adverse party sufficient notice of the request, through the pleadings or otherwise, to enable such adverse party to prepare to meet the request; and (b) [flumishes the court with sufficient information t0 enable it to take judicial notice of the matter.” (EVid.C0de § 453.) Through this pleading, all parties are being filmished With sufficient notice 0f, and the Court is being provided sufficient information to, grant this request as Exhibit A. Defendants submit that they have complied With California Evidence Code sections 452 and 453, and therefore respectfully request that the Court take judicial notice as requested herein. DATED: July 2, 2021 SELLAR HAZARD LUCIA (:1Ef*< fiz;_..az>V 5 CHRISTOPHER K. RIC COREY M. TIMPSON Attorneys for Defendant ADVOQUE -2- REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF DEFENDANT ADVOQUE’S DEMURRER TO PLAINTIFF PAPER 360, INC.’S COMPLAINT 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 SUM-1OO SUMMONS FOR COURT use ONLY (SOLO PARA USO DELA CORTE) (CITACION JUDICIAL) E4: |LED 3/3 3/2021 8:19 PMNOi'ICE TO DEFENDA NT: (Awso AL DEMANDADO): Clerk of Court ADVOQUE; and DOES 1 - 1o, inclusive. Superior Court of CA, Co Jnty of Santa Clara You ARE, BEING SUED BY PLAINTIFF: 21(3v381444 (Lo ESTA DEMANDANDO EL DEMANDANTE): Re ,gewed By: M Vu Paper 360, Inc. En elope: 6142869 NOTICEi You have been sued. The court may decide against you without your being heard unless you responu within 30 days. Read the information below. You have 30 CALENDAR DAYS afterthis summons and legal papers are sewed on you to file a written response at this court and have a copy served on the plaintiff. A letter or phone call will not protect you. Your written response must be in proper legal form if you want the court to hear yeur case. There may be a court form that you can use for your response. You can find these court forms and more information at the California Courts Oniine Self-Help Center (www.courtinfo.ca.gov/selflveip). your county law library, or the courthouse nearest you. If you cannot pay the filing fee, ask the court clerk for a fee waiverform. If you do not file your response on time. you may lose the case by default. and your wages, money, and property may be taken without further warning from the court. There are other legal requirements. You may want to call an attorney right away. If you do not know an attorney, you may want to call an attorney referral service. 1f you cannot afford an attorney, you may be eligible for free legal services from a nonprofit legal services program. You can locale these nonprofit groups at the California Legal Services Web site (www.lawhelpca/ifornia.org), the California Courts Online Self-Hefp Center (www.courtinfo.cagOV/selfhefp). or by contacting your local court or county bar association. NOTE: The court has a statutory lien for waived fees and costs on any settlement or arbitration award of $10,000 or more in a civil case. The court's lien must be paid before the court will dismiss the case. [A VISO! Lo han demandado. Si no responde dentro d9 30 dias, Ia corte puede decidir en su contra sin escuchar su versio'n. Lea Ia informacio'n a confinuacién. Tiene 30 DIAS DE CALENDARIO después d9 que Ie entreguen esra citacién y papeles Iegales para presenter una respuesta por escrito en esta corte y hacer que se entregue una copia a} demandante. Una carfa o una llamada telefénica no la protegen. Su respuesta por escn'to tiene que estar en fonnato legal corrects si desea que procesen su caso en Ia corte. Es posible que haya un formulan'o que usted pueda usarpara su respuesta. Puede encontrar estos formularfos de Ia con‘e y ma’s informacién en el Centro de Ayuda de Ias Cortes de California (www.sucorte.ca.gov). en Ia biblioreca de [eyes d6 su condado o en Ia cone que le quede més cerca, Si no puede pagarla cuota de presenfacién, pida an‘ secretanb de Ia corte que Ie dé un formulan’o de exencién de pago d9 cuotas. Si no presenta su respuesta a tiempo, puede perder e! caso porincumplfmienfo y Ia cone le podra’ quitar su sueldo, dinero y bienes sin ma’s advertencia. Hay otros requisites Iegales. Es recomendable que [lame a un abogado inmediatamente. Si no conoce a un abogado, puede [Iamar a un servicio de remisién a abogados. Sf no puede pager a un abogado, es posible que cumpla con Ios requisites para obtener servicios Iegales gratuitos de un programa de servicios Iegales sin fines de Iucro. Puede encontrar estos grupos sin fines de Iucro en e! sitio web de California Legal Services, (www.lawhe/pcalffornia.org), en el Centro de Ayuda de [as Cortes de California, (www.sucorte.ca.gov) o poniéndose en contacto con Ia carte o el colegio d9 abogados locales. A VISO: Por Iey, Ia corfe tiene derecho a reciamar las cuoras y Ios costos exentos por imponer un gravamen sabre cualquier recuperacién de $10,000 6 més de valor recibida mediante un eauerdo a una concesién de arbitraje en un caso de derecho civil. Tiene que pagar el gravamen de la corre antes d9 que la cone pueda desechar el case. The name and address of the court is: CASE NUMBER: (Nt'lmero del Caso): (El nombre y direccién de la corte es): Superior Court of CA, County of Santa Clara 21 CV381444 Santa Clara Courthouse, 1095 Homestead Road, Santa Clara. CA 95050 The name. address, and telephone number of plaintiffs attorney, or plaintiff without an attorney, is: (El nombre, Ia direccién y el namero de teléfono del abogado del demandante, o del demandante que no liens abogado, es): Jen-Feng Lee, 17800 Castleton Street. Suite 560. City of Industry, CA 91748 (Tel: 626-810-7200; Email: jflee@ltpacificlaw,com) DATE: 3/30/2021 8:19 PM CIerk of Court Clerk. by M Vu ,Dgputy (Fecha) (Secretario) (Adjunw) (For proof of service of this summons, use Proof of Service of Summons (form POS-O10).) (Para prueba de entrega de esta citatién use el formulan’o Proof of Service of Summons, (POS-010).) NOTICE TO THE PERSON SERVED: You are served 1. m as an individual defendant. 2. E as the person sued under the fictitious name of (specify): 3. on behalfof(specify): A’DvOQUE) 0‘ Cation“ Worm)“ under: E] CCP 416,10 (corporation) E3 CCP 416.60 (minor)E CCP 416,20 (defunct corporation) E CCP 416.70 (conservatee)E CCP 416.40 (association or partnership) E CCP 416.90 (authorized person)E other (specify): 4. E by personal delivery on (date) {SEAL} ' ' Pa_ge 1 of1 Form Adopted for Mandatory Use SUMMONS Code of Civil Procedure §§ 412.20. 465 Judx’cial Council of Caliform'a www.courfs.ca.gov SUM-100 [Rev. JUIy 1, 2009) 10 11 12 13 l4 15 l6 l7 18 19 20 21 22 23 24 25 26 27 28 Jen-Feng Lee, SBN 204328 jflee@ltpacificlaw.com Kenneth K. Tanji, Jr., SBN 162273 ktan'i 1t acificlaw.com LT Pacific Law Group, LLP 17800 Castleton Street, #560 City 0f Industry, CA 91748 T: 626-810-7200 F: 626-810-7300 Attorneys for Plaintiff Paper 360, Inc. E-FILED 3/30/2021 8:19 PM Clerk of Court Superior Court of CA, County of Santa Clara 21 CV381444 Reviewed By: M Vu Superior Court 0f California County of Santa Clara PAPER 360, INC, a California corporation, Plaintiff, VS. Case No. 21 CV381444 COMPLAINT FOR: 1. BREACH OF CONTRACT 2. BREACH 0F WARRANTY OF MERCHANTABILITY ADVOQUE, a California corporation; 3- FRAUD and DOES 1 - 10, inclusive, Defendants. 4. RESCISSION BASED UPON FRAUD 5. UNFAIR BUSINESS PRACTICE Come now PAPER 360, INC. (“PLAINTIFF”) and for its complaint against Defendant Advoque (“Defendant”), and other Doe defendants, as stated below: General Allegations ll. Plaintiff is a California corporation having a business location at 2910 S. Archibald Avenue, Suite A537, Ontario, California 91761. Complaint 1 10 ll 12 l3 14 15 l6 17 18 19 20 21 22 23 24 25 26 27 28 . Plaintiff is generally in the business 0f, among others, wholesale paper products. . On infomlation and belief, Defendant Advoque is a California corporation having a business location at 1040 Richard Avenue, Santa Clara, CA 95050. . On information and belief, Defendant Advoque is in the business of, among others, selling certain personal protective equipment (“PPE”) including, but not limited to, masks that provide protection to medical personnel and for everyday uses. . Plaintiff does not know the true names and identities of defendants sued as DOES 1 - 10, and therefore sues by such fictitious names. Plaintiff will amend the Complaint t0 allege the true names 0f said DOE defendants when the information becomes known. . On information and belief, and at all relevant times, each 0f the defendant, including the DOE defendants, are acting as agent 0r representative of one another and are acting in concert in relation t0 the wrongfill acts as alleged herein and are liable as charged either directly or indirectly, jointly and severally. . Roughly starting in late 2019 and thrOughout 2020, the pandemic, known as Coronavirus- 1 9 (“Covid- 1 9”) hit much of the world, including the United States. . Covid-19, based upon the limited knowledge learned by the scientific and medical community, spreads easily through air and surface contact. People can easily contract the Virus, or some variants 0f the virus, by breathing the air around people already infected. . Based upon reliable science and CDC (Centers for Disease Control and Prevention) guidelines, wearing certain PPE (Personal Protective Equipment) is an effective way of preventing the spread 0f the C0vid-l9 virus. Complaint 2 lO ll l2 13 14 15 16 l7 18 l9 20 21 22 23 24 25 26 27 28 10.Among the PPE options, Niosh-approved (Niosh-certified) masks are the most cost-effective choices. The need for such Niosh masks, as a result, increased dramatically in the United States. 11. On information and belief, the NIOSH stands for National Institute for Occupational Safety and Health, a US federal agency responsible for setting ‘ the standards 01' recommendations for the prevention of work-reIated disease and injury. 12. The Niosh-approved masks refer to masks that meet the standards set by NIOSH. 13. On information and belief, Defendant Advoque, at relevant times, advertised t0 sell certain masks that are Niosh-approved. 14. On information and belief, Defendant Advoque, at relevant times, also advertised t0 sell certain masks that are pre-Niosh-approved. Meaning, these masks are not Niosh-approved yet, but are manufactured by the same equipment and process that produced Niosh-approved masks. 15. On information and belief, Defendant Advoque represented that its pre- Niosh-approved masks are of the same quality and safety standard as the Niosh-approved masks; the pre-Niosh-approved masks would pass the Niosh certification requirement if such products were submitted for tested/inspected in due course. 16. On information and belief, Defendant represented that the Products would pass without objection in the trade and are fit for the purpose/use in the COVid-19 context and conforming t0 the CDC/Niosh guidelines in its quality, labeling and packaging. 17. Around May/June 0f 2020, Plaintiff expressed its intention t0 purchase some Niosh-approved masks, 0r pre-Niosh masks that are of the same quality as Niosh-approved masks, for resales. Plaintiff made Defendant aware 0f such purchasing need. Complaint 3 10 ll 12 l3 l4 15 16 l7 18 l9 20 21 22 23 24 25 26 27 28 18. On information and belief, Defendant Advoque, in response to Plaintiff s need as expressed, offered its pre-Niosh mask products (“Products”) to Plaintiff and Plaintiff did purchase such Products fiom Defendant in May, 2020, Via a written contract, having purchase order number P20168 (“P201 68 PO”). 19. Plaintiff, in its representation made to entice Plaintiff into purchasing the Products in P20168 PO, clearly indicated that the Products either would be Niosh-approved, 0r pre-approved with the quality being the same as Niosh- approved and made by the same equipment/process that produces Niosh- approved masks, and that given the time and opportunity for the approval process t0 g0 through, the products at issue would receive Niosh approval. 20.P20168 PO contains 1,944 boxes of mask Products, Where each box has 50 masks. The total value was $229,392. (“$229K”). 21 . Parties understand that the Products under the P20168 are not the non-Niosh masks, but are either Niosh-approved masks or pre-Niosh masks. 22. Plaintiffpaid the $229K to Defendant. Defendant delivered the contracted amount ofmasks to Plaintiff. 23. On information belief, the 1,944 boxes 0f Products are priced at the Niosh level (Niosh-approved or pre-Niossh), instead of the non-Niosh products. 24. Afier delivery, Plaintiff sold some amount of the $229K products, but then started t0 encounter resistance in the market place, as Plaintiff’s customers did not want to buy Plaintiffs products due to the products not meeting Niosh standard, or the quality is not on par With Niosh standard. 25. On information and belief, Defendant Advoque sold t0 Plaintiffmasks products that are at the non-Niosh quality level, causing Plaintiff to have difficulty in reselling the products delivered per the 1520 168 PO. Complaint 4 10 11 l2 l3 l4 15 16 l7 18 19 2O 21 22 23 24 25 26 27 28 26. By October, 2020, the news broke that the State 0f California recalled/cancclled Advoque’s mask supply contract, valued at $90 million, due t0 Advoque’s failure t0 maintain its Niosh certification. 27. The public news 0f California’s unacceptance 0fAdvoque’s masks due t0 Niosh certification issue further complicated the dilemma of Plaintiff’s inability to sell the masks under the P20618 PO. 28. Plaintiffhas made repeated demands to Advoque for refund, 0r fOr replacement 0f masks that are Niosh-approved. Plaintiff refused. 29. Among Plaintiffs refusal is the excuse, and blatantly false statement, that the P20168 PO called for the sales of “Non-Niosh Face Mask”, by citing to a June 10, 2020 email (2:56:41 PM PDT) where the discussion 0n shipping logistics was exchanged. A 30. Plaintiff suffered substantial damages due t0 Advoque’s wrongful acts as stated herein and as more facts to be discovered Via discovery. Claim one: Breach 0f Contract 31. Plaintiff incorporates prior allegations as if fillly set forth herein. 32.A contract was formed where Plaintiff agreed t0 pay, and did pay, for the Products that are either Niosh-approve or at least pre-approved masks. 33. Defendant delivered non-Niosh masks. 34. The public news confirmed that Defendant’s Products failed the Niosh approval. 35. Defendant breached the contract and Plaintiff suffered damages as a result 0f the breach. Claim Two: Breach 0f Warranty 0f Merchantability 36. Plaintiff incorporates prior allegations as if fully set forth herein. Complaint 5 10 11 12 13 l4 15 16 l7 18 l9 20 21 22 23 24 25 26 27 28 37. Defendant represented and warranted that the Products it provided were either Niosh-approve or pre-approved with the Products being of the same quality. 3 8. Defendant knew Plaintiff intended t0 resell the Products as either Niosh- approved or pre-approved masks. 39. Defendant represented that the Products would be merchantable and fit for the purpose/use in the C0vid-19 context, including the product quality t0 be the Niosh approved or at the same Niosh level for pre-approved products that can pass in the trade without objection. 40. Defendant’s representations are false. 41.Plaintiff relied upon Defendant’s express warranty and representation and suffered damages as a result 0f such breach. Claim Three: Fraud 42. Plaintiff incorporates prior allegations as if fully set forth herein. 43. Defendant represented and warranted that the Products it sold were either Niosh-approve or pre-approved with the Products being 0f the same quality. 44. Defendant knew Plaintiff intended to resell the Products as either Niosh- approved or pre-approved masks. 45. Defendant’s representations are false. 46. Defendant knew such representations were false at the time of making them, recklessly and without regard for the truth. 47. Plaintiff relied upon Defendant’s express warranty and representation and suffered damages. 48. Plaintiff s reliance 0n the knowingly false representation is a substantial factor in the resulting harm. Complaint 6 lO ll 12 l3 14 l5 l6 l7 18 19 20 21 22 23 24 25 26 27 28 49.Defendant acted With oppression, fraud, and malice in a willful and intentional manner, entitling Plaintiff to punitive damages in an amount t0 be proven at the time of trial. h Claim Four: Recission Based Upon Fraud 50.P1aintiff incorporates prior allegations as if fully set forth herein. 5 1 . Plaintiffpurchased 1,944 boxes 0fmask Products that are defective and non- conforming. 52. Plaintiffrepeatedly demanded that Defendant either take back the sold Products and exchange for Niosh-approved masks, or refund the purchase price. 53. Defendant refused. 54. Plaintiff has been unable to re-sell the Products and sustained damages. 55. Plaintiff is entitled for the restitution of all benefits received by Defendant including recission of the contract due to the fraud committed. Claim Five: Unfair Business Practice 56. Plaintiff incorporates prior allegations as if fully set forth herein. 57. California B&P code section 17200, in relevant part, provides: unfair competition shall mean and include any unlawful, unfair or fiaudulent business act 0r practice and unfair, deceptive, untrue or misleading advertising and any act prohibit by Chapter 1 (commencing with Section 17500) of Part 3 of Division 7 of the Business and Professional Code. 58. On information and belief, Defendant engaged in unfair and deceptive advertising and business acts that caused harm to Plaintiff. 59. As a proximate result 0f Defendant’s wrongful and unfair acts, Plaintiff suffered harm of at least $229K and other additional amount t0 be determined at trial. Complaint 7 l0 ll 3.2 13 l4 15 l6 l7 18 19 20 21 22 23 24 25 26 27 28 Prayer for Relief WHEREFOR, Plaintiff respectfully requests that the Court find for the following relief: . Judgment against Defendant Advoque in the amount 0f no less than $229,392; . For a rescission 0f the contract between Plaintiff and Defendant and order the restitution in favor 0f Plaintiff; . For pre-suit and pre-judgment interest 0n the principal amount as requested herein; . For general, special, and consequential damages against Defendant in an amount t0 be proven at trial; . For punitive and exemplary damages in an amount according t0 proof at trial; . For costs of the action and reasonable attorney fees; . For such other relief as the Court may deem just and proper. Dated: March 30, 2021 Respectfillly Submitted, ZMW K a f 6/f/ en-Feng (Je f) Lee Attorney for Plaintiff Paper 360, Inc. Complaint 8 ATTACHMENT CV-5012 CIVIL LAWSUIT NOTICE Superior Court of California, County of Santa Clara CASE NUMBER: 2 1 CV381 444 191 North First St, San JOSé, CA 95113 PLEASE READ THIS ENTIRE FORM PLAINTIFF (the person suing): Within 60 days after filing the lawsuit, you must serve each Defendant with the Complaint. Summons, an Alternative Dispute Resolution (ADR) lnfon'nation Sheet, and a copy of this Civil Lawsuit Notice, and you must file written proof of such service. DEFENDANT(The person sued): You must do each of the following to protect your rights: You must file a written response to the Complaint, using the properlegal form or format, in the Clerk's Office of the Coun, within 30 days of the date you were served with the Summons and Compiaint; You must serve by mail a copy of your written response on the Plaintiff's attorney or on the Plaintiff if Plaintiff has no attorney (to “serve by mail" means to have an adult other than yourself mail a copy); and You must attend the first Case Management Conference. Warning: If you, as the Defendant, do not follow these instructions, you may automatically lose this case. RULES AND FORMS: You must follow the California Rules of Coun and the Superior Court of California, County of <_CountyName_> Local Civil Rules and use proper forms. You can obtain legal information, view the rules and receive forms, free of charge, from the SeIf-Help Center at 201 North First Street, San José (408-882-2900 x-2926). I State Rules and Judicial Council Forms: www.courtinfo.ca.qov/forms and www.courtinfocaqovfrules - Local Rules and Poms: httgz/Iwwwsccsugeriorcourt.org/civi!/rule1toc.htm CASE MANAGEMENT CONFERENCE (CMC): You must meet with the other parties and discuss the case, in person or by terephone at Ieast 30 calendar days before the CMC. You must also fill out, file and serve a Case Management Statement (Judicial Council form CM-1 10) at least 15 calendar days before the CMC. You or your attorney must appear at the CMC. You may ask to appear by telephone - see Local Civil Rule 8. Rudy, Christopher G Your Case Management Judge is: Department: 7 The 19‘ CMC is scheduled for: (Completed by Clerk of Coun) Date: 8/10/2021 Time: 2:15 PM in Department: The next CMC is scheduled for: (Completed by party if the 15‘ CMC was continued or has passed) Date: Time: in Department: ALTERNATIVE DISPUTE RESOLUTION (ADR): if all panies have appeared and filed a compfeted ADR Stipulation Form (local form CV-5008) at least 15 days before the CMC, the Court will cancel the CMC and mail notice of an ADR Status Conference. Visit the Court's website at www.sccsuperiorcourt.orq/civiI/ADR/ or call the ADR Administrator (408-882-2100 x-2530) for a list of ADR providers and their qualifications, services, and fees. WARNING: Sanctions may be imposed if you do not follow the California Rules of Court or the Local Rules of Court. cv-5012 REV 03/01/16 CIVIL LAWSUIT NOTICE Page1 of 1 SANTA CLARA COUNTY SUPERIOR COURT ALTERNATIVE DISPUTE RESOLUTION INFORMATION SHEET Many cases can be resolved to the satisfaction of all parties without the necessity of traditional litigation, which can be expensive, time consuming, and stressful. The Court finds that it is in the best interests of the parties that they participate in alternatives to traditional litigation, including arbitration, mediation, neutral evaluation. special masters and referees. and settlement conferences. Therefore. all matters shall be referred to an appropriate form ofAfternative Dispute Resolution (ADR) beforethey are set fortrial, unless there is good cause to dispense with the ADR requirement. What is ADR? ADR is the general term for a wide variety of dispute resolution processes that are alternatives to litigation. Types ofADR processes include mediation, arbitration, neutral evaluation, special masters and referees, and settlement conferences, among others forms. What are the advantages of choosing ADR instead of litigation? ADR can have a number of advantages over litigation: - ADR can save time. A dispute can be resolved in a matter of months, or even weeks, while litigation can take years. n ADR can save money. Attorney’s fees. court costs, and expert fees can be reduced or avoided altogether. o ADR provides more participation. Parties have more opportunities with ADR to express their interests and concerns, instead of focusing exclusively on legal rights. - ADR provides more control and flexibility. Parties can choose the ADR process that is most likely to bring a satisfactory resolution to their dispute. u ADR can reduce stress. ADR encourages cooperation and communication, while discouraging the adversarial atmosphere of litigation. Surveys of panies who have participated in an ADR process have found much greater satisfaction than with parties who have gone through litigation. What are the main forms ofADR offered by the Court? Mediation is an informal, confidential, flexible and non-binding process in the mediator helps the parties t0 understand the interests of everyone involved, and their practical and legal choices. The mediator helps the partiesto communicate better, explore legal and practical settlement options, and reach an acceptable solution of the problem. The mediator does not decide the solution to the dispute; the parties do. Mediation may be appropriate when: a The parties want a non-adversary procedure o The parties have a continuing business or personal relationship o Communication problems are interfering with a resolution - There is an emotional element involved - The parties are interested in an injunction, consent decree, or other form of equitable relief Neutral evaluation, sometimes called "Earfy Neutral Evaluation" or “ENE”, is an informal process in which the evaluator. an experienced neutral lawyer, hears a compact presentation of both sides of the case, gives a non-binding assessment of the strengths and weaknesses on each side, and predicts the likely outcome. The evaluator can help parties to identify issues, prepare stipulations, and drafl discovery plans. The parties may use the neutral‘s evaluation to discuss settlement. Neutral evaluation may be appropriate when: o The parties are far apart in their view of the law or value of the case - The case involves a technical issue in which the evaluator has expertise a Case planning assistance would be helpful and would save legal fees and costs - The parties are interested in an injunction. consent decree, or otherform of equitabIe relief -Over- cv-sooa REV10/21I2020 ALTERNATIVE DISPUTE RESOLUTION INFORMATION SHEET CIVIL DIVISION Ahrbitration is a less formal process than a trial, with no jury. The arbitrator hears the evidence and arguments of the parties and then makes a written decision. The parties can agree to binding or non-binding arbitration. In binding arbitration, the arbitrator’s decision is fina! and completely resolves the case, without the opportunity for appeal. In non-binding arbitration, the arbitrator’s decision could resolve the case, without the opportunity for appeal. unless a party timely rejects the arbitrator's decision within 30 days and requests a trial. Private arbitrators are allowed to charge for their time. Arbitration may be appropriate when: o The action is for personal injury, property damage, or breach of contract o Only monetary damages are sought o thess testimony, under oath, needs to be evaluated o An advisory opinion is sought from an experienced litigator (if a non-binding arbitration) Civil Judge ADR allows parties to have a mediation or settlement conference with an experienced judge of the Superior Court. Mediation is an informal, confidential, flexible and non-binding process in which thejudge helps the parties to understand the interests of everyone involved, and their practical and legal choices. A settlement conference is an informal process in which the judge meets with the parties or their attorneys. hears the fads ofthe dispute, helps identify issues to be resolved, and normally suggests a resolution that the parties may accept or use as a basis for further negotiations. The request for mediation or settlement conference may be made promptly by stipulation (agreement) upon the filing of the Civil complaint and the answer. There is no charge for this service. Civil Judge ADR may be appropriate when: o The parties have complex facts to review r o The case involves multiple parties and problems o The courthouse surroundings would he helpful to the Settlement process Special masters and referees are neutral parties who may be appointed by the court to obtain information or to make specific fact findings that may lead to a resolution of a dispute. Special masters and referees can be particularly effective in complex cases with a number of parties, like construction disputes. Settlement conferences are infomal processes in which the neutral (a judge or an experienced attorney) meets with the parties or their attorneys, hears the facts of the dispute, helps identify issues to be resolved, and normally suggests a resolution that the parties may accept or use as a basis for further negotiations. Settlement conferences can be effective when the authority or expertise ofthejudge or experienced attorney may help the parties reach a resolution. What kind of disputes can be resolved byADR? Although some disputes must go to coun, almost any dispute can be resolved through ADR. This includes disputes involving business matters; civil rights; collections; corporations; construction; consumer protection; contracts; copyrights; defamation; disabilities; discrimination; employment; environmental problems; fraud; harassment; health care; housing; insurance; intellectual property; labor; landlord/tenant; media; medical malpractice and other professional negligence; neighborhood problems; partnerships; patents; personal injury; probate; product liability; property damage; real estate; securities; sports; trade secret; and wrongful death, among other matters. Where can you get assistance with selecting an appropriate form ofADR and a neutral for your case, information aboutADR procedures, or answers to other questions aboutADR? Contact: Santa Clara County Superior Court ADR Administrator 408-882-2530 CV-suos REV1o/2112020 ALTERNATIVE DISPUTE RESOLUTION INFORMATION SHEET CIVIL DIVISION