Response Reply

Cal. Super. - 6th Dist.May 3, 2021

CLAPP, MORONEY , VUCINICH, BEEMAN+SCHELEY 5860 OWENS DRIVE, SUITE 410 KOOOQONU‘I-bUJNr-A PLEASANTON, CALIFORNIA 94588 [\J [\J [\.) N [\J [\J N [\J N H >-¢ H H r-d H r-A r-d H r-A 00 fl O\ Ul -b U.) [\J >-‘ O \o oo fl O\ U] L DJ [\J r-‘ O 21 CV38521 6 Santa Clara - Civil R. Bur ADRIANNE c. DUNCAN, ESQ. BAR#: 284697 E'ecmn'f‘a'w Wed faduncan@clappmoroney.com by suPer'or court ° CA, REBECCA R. SPODICK, ESQ. BAR#: 335397 County 0f Santa Clara, rspodick@clappmoroney.com on 12/27/2021 12:17 PM CLAPP, MORONEY, VUCINICH, BEEMAN+SCHELEY Reviewed By: R. Burciaga A PROFESSIONAL CORPORATION case #21 cv33521 6 5860 Owens Drive, Suite 410 . Pleasanton, CA 94588 E"V°'°pe' 7935522 (925) 734-0990 Fax: (925) 734-0888 Attorneys for Defendant AG PRODUCTION SERVICES, AG LIGHT and SOUND SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SANTA CLARA CASEY ARMSTRONG, Case N0.: 21CV385216 Plaintiffs, DEFENDANTS’ REPLY IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT V. Date: January 6, 2022 AG PRODUCTION SERVICES, AG LIGHT 3:12: 3600 3-m- and SOUND, and DOES 1-25, inclusive, Filed Date: December 29, 2017 Defendants. Trial Date: None I. REPLY Defendants AG PRODUCTION SERVICES and AG LIGHT AND SOUND (hereinafter Defendants) hereby submit their reply in support 0f their motion for summary judgment. A. PLAINTIFF’S OPPOSITION AND ASSOCIATED DOCUMENTS CONTAIN NUMEROUS PROCEDURAL DEFICIENCIES. As an initial matter, Plaintiff’s opposition contains numerous procedural deficiencies that prevent the opposition from being understood by Defendants. The following deficiencies in Plaintiff’ s opposition constitute a failure t0 comply With both the California Rules 0f Court and the California Code 0f Civil Procedure. Accordingly, the Motion for Summary Judgment should be granted based simply on Plaintiff s failure to file a compliant opposition. /// 1 :iaga DEFENDANTS’ REPLY IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT CLAPP, MORONEY , VUCINICH, BEEMAN+SCHELEY 5860 OWENS DRIVE, SUITE 410 PLEASANTON, CALIFORNIA 94588 H Um KOOOQONU‘I-bUJNr-A Hr-AHr-‘r-A LWNP-‘O NNNNNNNNNr-‘HHH OOQQUl-RUJNHOKOOOQQ 1. Improper Separate Statement 0f Material Facts Accompanying the Opposition. Code 0f Civil Procedure § 437C, subd. (b)(3) requires that the opposition “shall include a separate statement that responds t0 each 0f the material facts contended by the moving party to be undisputed, indicating ifthe opposing party agrees 0r disagrees that those facts are undisputed.” The code further requires that the statement “shall set forth plainly and concisely any other material facts the opposing party contends are disputed. . .. [and] shall be followed by a reference t0 the supporting evidence.” (CCP § 437c(b)(3); Magana Cathcart McCarthy v. CB Richard Ellis, Inc. (2009) 174 Cal.App.4th 106, 119). The California Rules 0f Court further require that the responses to each fact, “must unequivocally state whether that fact is ‘disputed’ or ‘undisputed’” (Cal. Rules of court, Rule 3.1350(f)(2), emphasis added). Plaintiff served “Plaintiff‘s Response to Defendant’s Separate Statement 0f Undisputed Material Facts In Support Of Motion For Summary Judgment” at the end 0f the moving papers. However, this response fails t0 unequivocally state Whether a fact is disputed or undisputed. It is wholly unclear whether Plaintiff provides his own new facts in response t0 the moving party’s statements or ifhe is in agreement. This response is in Violation ofboth the Code of Civil Procedure and the California Rules of Court. Failure to comply with this requirement of a separate statement may constitute a sufficient ground, in the court’s discretion, for granting the motion (Code CiV. Proc. § 437c(b)(3)). Plaintiff s response t0 Defendants’ Separate Statement fails t0 properly identify which facts are disputed or undisputed and fails to properly raise an issue 0f material fact. Based simply 0n the deficiencies in the response t0 the Separate Statement, this motion for summary judgment should be granted. 2. Lack 0f Cited Evidence in Response to Separate Statement of Material Facts “An opposing party Who contends that a fact is disputed must state, on the right side of the page directly opposite the fact in dispute, the nature 0f the dispute and describe the evidence that supports the position that the fact is controverted” (Cal. Rules of Court, Rule 3.1350(f)(2)). That evidence must be supported by citation t0 exhibit, title, page, and line numbers in the evidence submitted. (Id.) 2 DEFENDANTS’ REPLY IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT CLAPP, MORONEY , VUCINICH, BEEMAN+SCHELEY 5860 OWENS DRIVE, SUITE 410 PLEASANTON, CALIFORNIA 94588 H Um KOOOQONU‘I-bUJNr-A Hr-AHr-‘r-A LWNP-‘O NNNNNNNNNHr-‘HH mumm-hwwr-‘Okoooua The rules require that any new fact must be followed by a reference to supporting evidence. Plaintiff fails t0 provide any citations in the entirety of the response t0 Defendant’s Separate Statement. Plaintiff’s counsel provides asserted facts but does not provide a single citation t0 any admissible evidence. Defendants address each of Plaintiff’s responses to Defendant’s Separate Statement ofUndisputed Material Facts in its Obj ections t0 Evidence, served concurrently herewith. CCP Section 4370(0) “requires the trial judge t0 grant summary judgment if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence’ and uncontradicted by other inferences 0r evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter 0f law.” (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1 1 10, 1 1 19). “T0 establish a triable issue ofmaterial fact, the party opposing the motion must produce substantial responsive evidence.” (Sangster v. Paetkau (1998) 68 Ca1.App.4th 151, 166.) Plaintiff fails to provide substantial responsive evidence in support 0f his opposition to the Separate Statement of Facts. Defendants address each of these apparent objections t0 material facts in Defendant’s Obj ections to Plaintiff s Evidence, served concurrently herewith. 3. Lack 0f Affidavit in Support 0f the Opposition Code of Civil Procedure section 437c(d) requires “[s]upporting and opposing affidavits or declarations shall be made by a person 0n personal knowledge, shall set forth admissible evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated in the affidavits or declarations.” Furthermore, “[a]uthentication of a writing is required before it may be received in evidence.” (EVid.Code, § 1401, subd. (a)). Purpose 0f affidavit supporting motion for summary judgment is to present verified facts to court which, if uncontradicted 0r unexplained by facts set forth in opposition thereto, Will constitute sufficient grounds t0 allow court to determine that no triable issue 0f fact exists. (Newport v. Los Angeles (1960) 184 Cal. App. 2d 229). Plaintiff provides a declaratory statement on page 1 of its opposition as well as on page 9. Neither 0f these statements are sufficient to constitute a declaration or affidavit to authenticate the writings produced. Furthermore, Plaintiff fails to provide any declarations sufficient t0 raise an 3 DEFENDANTS’ REPLY IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT CLAPP, MORONEY , VUCINICH, BEEMAN+SCHELEY 5860 OWENS DRIVE, SUITE 410 PLEASANTON, CALIFORNIA 94588 H Um KOOOQONU‘I-bUJNr-A Hr-AHr-‘r-A LWNP-‘O NNNNNNNNNr-‘HHH OOQQUl-RUJNHOKOOOQQ issue of material fact in opposition of this motion for summary judgment. Accordingly, this motion should be granted. 4. Improper Objections t0 Evidence The first three paragraphs of Plaintiff’s “Legal Argument” section 0f the opposition appear t0 be obj ections to evidence (Plaintiff s Opp t0 MSJ, Page 4). Although it is unclear whether these first three paragraphs are obj ections 0r not, Defendant proceeds under the assumption that there are three objections t0 the evidence presented, each consisting of their own paragraph on page 4 of the opposition. According to California Rule of Court 3.1352, a party intending t0 obj ect t0 evidence in the papers of a motion for summary judgment must either submit objections in writing in accordance With Rule 3.1354 0r make arrangements for a court reporter to be present at the hearing. Rule of Court 3.1354(b) requires that “[a]11 written obj ections to evidence must be served and filed separately from the other papers in support of or in opposition to the motion.” Each obj ection must be numbered and must “(1) Identify the name of the document in Which the specific material objected t0 is located; (2) State the exhibit, title, page, and line number of the material objected to; (3) Quote or set forth the obj ection t0 that statement 0r material; and (4) State the grounds for each objection to that statement or material.” Plaintiff’s apparent objections do not comply With the Rules 0f Court for format 0f objections. The objections also fail to provide the proper format for a proposed ruling by the court in accordance with Rule 3.1354(0). Plaintiff appears to make three objections t0 evidence in the first three paragraphs of its opposing papers in the “Legal Arguments” section (Plaintiff s Opposition to Motion for Summary Judgment, Page 4, lines 2-26). These objections are procedurally incorrect because they are included in the opposing papers rather than a separate document. Additionally, these objections fail to properly identify the document or fact t0 Which they object. Defendants address each 0f these apparent obj ections in Defendant’s Obj ections to Plaintiff s Evidence, served concurrently herewith. /// /// /// 4 DEFENDANTS’ REPLY IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT CLAPP, MORONEY , VUCINICH, BEEMAN+SCHELEY 5860 OWENS DRIVE, SUITE 410 PLEASANTON, CALIFORNIA 94588 H Um KOOOQONU‘I-bUJNr-A Hr-AHr-‘r-A LWNP-‘O NNNNNNNNNHr-‘HH mumm-hwwr-‘Okoooua B. PLAINTIFF FAILED TO ESTABLISH A TRIABLE ISSUE OF MATERIAL FACT. In order t0 defeat a motion for summary judgment or adjudication, Plaintiff must show a triable question of fact. (CCP §437c(b)(3)). Equivocal evidence will not suffice. (Ahems v. Sup. Ct. (Pacific Gas & Elec. C0.) (1988) 197 CA3d 1134, 1152). T0 establish a triable issue of material fact, Plaintiffmust produce substantial responsive evidence. (Sangster v. Paetkau (1998) 68 CA4th 151, 166). Plaintiff’s burden is not satisfied by declarations containing inadmissible evidence (hearsay 0r conclusions). (Overland Plumbing, Inc. v. Transamerica Ins. C0. (1981) 119 CA3d 476, 483). Likewise, Plaintiff’s self-serving conclusions do not create issues of material fact. The opposing party cannot controvert the moving party’s declarations by evidence “based 0n speculation, imagination, guess work, 0r mere possibilities.” (Doe v. Salesian Soc. (2008) 159 CA4th 474, 481). Furthermore, self-serving conclusions that lack foundation and are speculative do not create genuine issues of material fact sufficient to defeat a motion for summary judgment. (Cal. EVid. Code § 310, 305, 402, 403, 702, 1200.) The opposing party’s burden 0f proof is not satisfied by declarations containing inadmissible evidence, hearsay, or conclusions). (Overland Plumbing, Inc. at 761). Plaintiff failed t0 raise an issues 0f material fact in order t0 defeat Defendants’ motion for summary judgment. First, Plaintiff provided six (6) exhibits in support of its opposition. Exhibits 1, 2, 3, and 4 merely support the fact that Plaintiff filed a workers’ compensation claim against Gary Nelson and Associates and it is resulted in a subsequent complaint in intervention which was also dismissed. Plaintiff fails to cite any law which supports the argument that a prior workers’ compensation claim against one employer negates the special employer relationship With another employer. Plaintiff further fails t0 cite any law Which supports the argument that the special employer relationship does not exist because a complaint in intervention was filed. Additionally, Plaintiff provides Exhibits 5 and 6, which appear to support his argument that Plaintiff also had income from repairing bicycles and Napa County Comprehensive Services for Older Adults. Although these exhibits are unauthenticated, for the purpose of this section, 5 DEFENDANTS’ REPLY IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT CLAPP, MORONEY , VUCINICH, BEEMAN+SCHELEY 5860 OWENS DRIVE, SUITE 410 PLEASANTON, CALIFORNIA 94588 H Um KOOOQONU‘I-bUJNr-A Hr-AHr-‘r-A LWNP-‘O NNNNNNNNNHr-‘HH mumm-hwwr-‘Okoooua Defendants proceed with them as alleged facts. Even assuming that Plaintiffhad income from both 0f these locations, it does not create an issue of material fact for the purposes 0f this motion. Whether Plaintiff had income from other business, is one of many factors t0 weigh the special employer relationship for the purposes of workers’ compensation exclusivity. Finally, Plaintiff does not dispute a single Undisputed Material Fact in Defendant’s Separate Statement of Facts. Although Plaintiffbrings up some additional, uncited and unauthenticated facts, in opposition; not a single fact presented raises a disputed material fact. Further, some of the additional facts introduced by Plaintiff are actually in support 0f Defendants” motion. By failing t0 raise a disputed material fact, Plaintiff fails t0 support his burden in opposing this motion for summary judgment. Based 0n Plaintiff’s failure t0 raise an issue of material fact, Defendants” motion for summary judgment must be granted. C. DEFENDANT’S MOTION FOR SUMMARY JUDGMENT MUST BE GRANTED AS A MATTER OF LAW 1. Workers’ Compensation is the Exclusive Remedy for Plaintiff’s Alleged Injury When a general and special employment relationship is created, both the general and the special employers are liable for the payment 0f benefits t0 the injured employee under workers’ compensation law. Thus, while the employee may proceed against either employer for compensation benefits, he is barred from maintaining an action for damages against the special employer (McFarland v. VoorheiS-Trindle C0. (1959) 52 Cal. 2d 698, 702; Santa Cruz Poultry. Inc. v. Superior Court (1987) 194 Cal. App. 3d 575, 578). "Generally, When employees 0f independent contractors are injured in the workplace, they cannot sue the party that hired the contractor t0 do the work. . . . [1]] By hiring an independent contractor, the hirer implicitly delegates to the contractor any tort law duty it owes t0 the contractor's employees t0 ensure the safety of the specific workplace that is the subject of the contract." (SeaBright Ins. C0. v. US Airways, Inc. (201 1) 52 Ca1.4th 590, 594, italics omitted; see Privette v. Superior Court (1993) 5 Ca1.4th 689, 696; Toland v. SunlandHousing Group, Inc. (1998) 18 Ca1.4th 6 DEFENDANTS’ REPLY IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT CLAPP, MORONEY , VUCINICH, BEEMAN+SCHELEY 5860 OWENS DRIVE, SUITE 410 PLEASANTON, CALIFORNIA 94588 H Um KOOOQONU‘I-bUJNr-A Hr-AHr-‘r-A LWNP-‘O NNNNNNNNNHr-‘HH mumm-hwwr-‘Okoooua 253, 256.) Accordingly, by Virtue 0f that delegation of the duty to provide safety, "when a general contractor hires a subcontractor, the general contractor is not liable for injuries that occur t0 the subcontractor's employees." (See Brannan v. Lathrop Construction Associates, Ina, (2012) 206 Cal.App.4th 1170, 1176). Here, workers” compensation is the exclusive remedy for Plaintiff’ s alleged injuries related t0 the incident on January 7, 20 1 6 at Levi Stadium. As discussed in Plaintiff s opposition, a workers’ compensation claim is appropriate against a party’s employer, whether general 0r special. Here, Plaintiff is considered a special employee of AG Production Services and thus was required t0 proceed under workers’ compensation law and is barred from maintaining an action at law. 2. Plaintiff is Barred from Maintaining an Action at Law Against Defendant Because PlaintiffWas a “Special Employee” A general and special employment relationship is created Where an employer loans an employee to another person who then puts that employee on ajob and directs their activities (Oxford v. Signal Oil & Gas C0. (1970) 12 Cal. App. 3d 403, 408). The most important consideration in determining the relationship, is Whether the alleged special employer exercises control over the details of the work (McFarland, supra, 52 Cal. 2d at 705). Plaintiff indicated that “There is n0 dispute that Plaintiff was working 0n the direct control and supervision ofNamed Defendant.” (Plaintiff s Response to Defendant’s Separate Statement of Undisputed Material Facts, Nos. 10-14; 15-18). Based on this statement, as well as the evidence provided in Defendant’s Exhibits in Support of the Motion for Summaryjudgment demonstrate that Plaintiff was in fact a special employee because AG Production exercised control over the work. Furthermore, Plaintiff does not dispute the fact that “Plaintiff believed he was under the direction and control ofAG Production and that AG Production was his employer.” (Defendant’s Undisputed Material Fact N0. 18). However, if other considerations are needed, the courts may consider the nature 0f services requires skilled or unskilled work, the work is part 0f the employer’s regular business, duration of the employment period, method of payment, and the supplier 0f the work tools (Martin v. Phillips Petroleum C0. (1974) 42 Cal. App. 3d 916, 921-922). These considerations among others are listed 7 DEFENDANTS’ REPLY IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT CLAPP, MORONEY , VUCINICH, BEEMAN+SCHELEY 5860 OWENS DRIVE, SUITE 410 KOOOQONU‘I-bUJNr-A PLEASANTON, CALIFORNIA 94588 [\J [\J [\.) N [\J [\J N [\J N H >-¢ H H r-d H r-A r-d H r-A 00 fl O\ Ul -b U.) [\J >-‘ O \o oo fl O\ U] L DJ [\J r-‘ O in CACI 2923. Although CACI 2923 deals directly with federal law, it has been used to illustrate some of the factors necessary t0 the determination of a special employment relationship (Marsh v. Tilley Steel C0. (1980) 26 Cal. 3d 486, 492-493; Kowalski v. Shell Oil C0. (1979) 23 Cal. 3d 168, 176-177). Here, AG Production furnished all equipment for the project (Defendants’ UMF N0. 10). Plaintiff was paid an hourly rate by Nelson Associates, and not AG Production (Defendants’ UMF N0. 3). Additionally, Plaintiff was not a skilled worker (Defendants’ UMF N0. 20) but rather a laborer (Defendants’ UMFs No. 4). Plaintiff was engaged in assisting the usual business 0f AG Production Services (Defendants’ UMF N0. 8). Finally, Plaintiff understood that AG Production had the right t0 terminate him from the project (Defendant’s UMG No. 16). Based on these factors, Plaintiff must be considered a special employee. 3. Plaintiff Was Injured in The Course and Scope 0f His Special Employment With Defendant Compensation may be awarded for an injury “arising out of and in the course 0f the employment” (Labor Code § 3600). This condition is fulfilled when the employee is on the work site or premises, performing acts within the scope of assigned duties and working in conformity With the directions of the employer (Winter v. Industrial Acc. Com. (1954) 129 Cal. App. 2d 174, 176). It is undisputed that Plaintiffwas working as a stagehand for the Super Bowl halftime show at Levi’s Stadium (Defendants Undisputed Material Fact No. 2). Additionally, 0n the date of the incident, Plaintiffwas pushing a pallet jack 0n the stage When he fell through the stage (Defendants Undisputed Material Fact N0. 6). Finally, Plaintiff acknowledges that the AG Production team was his direct supervisor for the proj ect ((Defendants Undisputed Material Fact No. 11). Based 0n these undisputed facts, Plaintiff was in the course and scope of his special employment With Defendant. 4. Plaintiff’s Complaint Fails t0 Allege an Exception t0 Workers’ Compensation Exclusivity Rule There are several exceptions to the Workers’ Compensation Exclusivity Rule; however, none were alleged in Plaintiff’s complaint. If the complaint affirmatively alleges facts indicating 8 DEFENDANTS’ REPLY IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT CLAPP, MORONEY , VUCINICH, BEEMAN+SCHELEY 5860 OWENS DRIVE, SUITE 410 PLEASANTON, CALIFORNIA 94588 H Um KOOOQONU‘I-bUJNr-A Hr-AHr-‘r-A LWNP-‘O NNNNNNNNNr-‘HHH OOQQUl-RUJNHOKOOOQQ coverage by the workers’ compensation law but fails t0 state additional facts negating the application of the exclusive remedy, n0 civil action may be maintained (Labor Code § 3602; Singleton v. Bonnesen (1955) 131 Cal. App. 2d 327, 331). Accordingly, Plaintiff does not qualify for any exception to the workers’ compensation exclusivity rule. 5. The Determination of an Employee’s Status Does Not Need t0 Go t0 the Jury The determination 0f an employee’s status as a special employee can be an issue for the trier 0f fact (Marsh, 26 Cal. at 493; see Miller v. Long Beach Oil Dev. C0. (1959) 167 Cal. App. 2d 546, 550). As discussed in Marsh, evidence Which is susceptible t0 the inference that no special employment relationship arose is one for the trier 0f fact (Marsh, 26 Cal. at 494). Here, the evidence is persuasive, and n0 inference can be made that a special employment relationship did not exist. There is no dispute that AG Production was in complete control of Plaintiff at the time of his injury. Furthermore, Plaintiff indicated that he believed AG Production was his supervisor and employer at the time 0f the incident (Defendant’s UMF Nos. 13, 14, and 18). Thus, a jury cannot reasonably infer that a special relationship did not exist. The determination is clear that Plaintiff was a special employee 0f AG Production Services and thus was required t0 pursue a claim 0f workers’ compensation. II. CONCLUSION Based upon the foregoing law and argument, as well as the law and argument set forth in Defendants’ moving papers, because Mr. Armstrong was a “borrowed” 0r special employee ofAG Production Service at the time of his accident, and AG Production Services maintained a policy of workers’ compensation insurance, the workers’ compensation exclusivity rules set forth in California Labor Code section 3600 et seq. operate to bar his negligence claims against AG Production Services. /// /// /// /// /// 9 DEFENDANTS’ REPLY IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT CLAPP, MORONEY , VUCINICH, BEEMAN+SCHELEY 5860 OWENS DRIVE, SUITE 410 KOOOQONU‘I-bUJNr-A PLEASANTON, CALIFORNIA 94588 [\J [\J [\.) N [\J [\J N [\J N H >-¢ H H r-d H r-A r-d H r-A 00 fl O\ Ul -b U.) [\J >-‘ O \o oo fl O\ U] L DJ [\J r-‘ O Accordingly, Defendants AG Production Services and AG Light and Sound respectfully request that the court enter summary judgment in its favor on each and every cause of action set forth in Plaintiff s complaint. Dated: December 27, 2021 CLAPP, MORONEY, VUCINICH, BEEMAN+SCHELEY flw Bv: ADRIANNE C. DUNCAN REBECCA R. SPODICK Attorney for Defendant AG PRODUCTION SERVICES, AG LIGHT and SOUND 10 DEFENDANTS’ REPLY IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT \OOONQUILUJNr-a CLAPP, MORONEY , VUCINICH, BEEMAN+SCHELEY 5860 OWENS DRIVE SUITE 410 PLEASANTON, CALIFORNIA 94588 N [\J N [\J [\J N [\J [\J N r-A >-¢ >-A r-A >-A >-A r-A H >-A r-A 00 q O\ Ul A U3 N >-* O \D 00 N ON Um A UJ [\J >-‘ O Armstrong, Casev v. AG Production Services, et al Santa Clara County Superior Court Case No. 21CV385216 PROOF OF SERVICE [Code ofCiv. Proc. §§ 1011, 1013, 1031a, 2015.5] METHOD OF SERVICE: U By Personal Service By Mail U By Overnight Delivery U By Messenger Service U By Facsimile By E-Mail/Electronic Transmission 1. Iam a citizen of the United States and am employed in the County of Alameda, State 0f California. I am over the age of 18 years and not a party t0 the Within action. 2. My place of employment is 5860 Owens Drive, Suite 410, Pleasanton, California 94588. 3. On the date set forth below, I caused t0 be served a true and correct copy 0f the document described as: DEFENDANTS’ REPLY IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT I served the documents on the persons below, as follows: Attornev for Plaintiff Casev Armstrong William H. Law Office 0f William H. Carlisle PO Box 490 Shingle Springs, CA 95682 T: (530) 621 F: None Email: thebestlawoffice@gmail.com Carlisle, Esq. -1953 4. The document(s) was served by the following means (specify): a. D BY PERSONAL SERVICE. I caused to be personally delivered the documents to the persons at the addresses listed in item 4. (1) For a party represented by an attorney, delivery was made t0 the attorney 0r at the attorney's office by leaving the documents in an envelope or package clearly labeled to identify the attorney being served With a receptionist or an individual in charge of the office. (2) For a party, delivery was made to the party or by leaving the documents at the party's residence With some person not less than 18 years of age between the hours of eight in the morning and six in the evening. BY UNITED STATES MAIL. I enclosed the documents in a sealed envelope or package addressed t0 the persons at the addresses in item 4 and (specify one): (1) D deposited the sealed envelope with the United States Postal Services, with the postage fillly prepaid. (2) placed the envelope for collection and mailing, following our ordinary business practices. I am readily familiar with this business's practice for collecting and processing correspondence for mailing. On the same day that 11 DEFENDANTS’ REPLY IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT CLAPP, MORONEY , VUCINICH, BEEMAN+SCHELEY 5860 OWENS DRIVE, SUITE 41 0 PLEASANTON, CALIFORNIA 94588 H Um \OOONQUILUJNr-a Hr-AHHr-A AWNHO NNNNNNNNNr-AHHp-a OOQQUIAUJNHOOOOQON correspondence is placed for collection and mailing, it is deposited in the ordinary course ofbusiness With the United States Postal Service, in a sealed envelope with postage fully prepaid. c. D BY CERTIFIED MAIL/RETURN RECEIPT REQUESTED. I enclosed the documents in a sealed envelope or package addressed to the persons at the addresses in item 4 and (specify one): (1) U placed the envelope for collection and mailing, following our ordinary business practices. I am readily familiar with this business's practice 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 ofbusiness with the United States Postal Service, in a sealed envelope With postage fully prepaid for said certified mail/return receipt number (See attached copies 0f Certified MaiI/Return Receipts Requested.) I am a resident 0r employed in the County where the mailing occurred. The envelope or package was placed in the mail at Pleasanton, California, County ofAlameda. d. U BY OVERNIGHT DELIVERY. I enclosed the documents in an envelope or package provided by an overnight delivery carrier and addressed t0 the persons at the addresses in item 4. Iplace the envelope or package for collection and overnight delivery at an office or a regularly utilized drop box of the overnight delivery carrier. e. D BY MESSENGER SERVICE. I served the documents by placing them in an envelope or package addressed to the persons at the addresses listed in item 4 and providing them t0 a professional messenger service for service. f. U BY FAX TRANSMISSION. Based 0n an agreement 0f the parties t0 accept service by fax transmission, I faxed the documents t0 the persons at the fax numbers listed in item 4. No error was reported by the fax machine that I used. g. BY E-MAIL 0R ELECTRONIC TRANSMISSION. I caused all of the above-entitled document(s) t0 be sent t0 the recipients listed by electronic mail only based on the fact that during the Coronavirus (COVid-19) pandemic, this office will be working remotely, not able to send physical mail as usual, and is therefore using only electronic mail. No electronic message or other indication that the transmission was unsuccessful was received within a reasonable time after the transmission. (State) I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. D (Federal) declare that I am employed in the offices of a member of the bar of this court at whose direction this service was made. I declare under penalty 0f perjury that the foregoing is true and correct. Executed on December 27, 2021 at Pleasanton, California Noel A. Morales [I 12 DEFENDANTS’ REPLY IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT