Motion_in_limine_no_3MotionCal. Super. - 4th Dist.January 27, 2017G L O B A L L E G A L L A W F I R M 3 8 0 S T E V E N S AV EN UE , SU IT E 31 1 S O L A N A B E A C H , C A L I F O R N I A 9 2 0 7 5 (8 88 ) 8 4 6 - 8 9 0 1 A N nn W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 27 28 ELECTROMICALLY FILED Superior Court of Califarnia, GLOBAL LEGAL LAW FIRM County of Orange James C. Huber, Esq. (State Bar No. 269488) 01/18/2009 at 12:00:00 FM Joshua J. Herndon, Esq. (State Bar No. 244106) | de i the Superior Court at Pa ee By Christin Dawson, Deputy Clerk Tel.: (888) 846-8901 Fax: (888) 846-8902 Email: jhuber@attorneygl.com jherndon @attorneygl.com Attorneys for Plaintiff/Cross-Defendant Select Bankcard, Inc. SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF ORANGE, CENTRAL JUSTICE CENTER SELECT BANKCARD, INC, a Utah Case No. 30-2017-00900137-CU-BC-CJC Corporation, oo PLAINTIFF/CROSS-DEFENDANT’S Plaintiff, NOTICE AND MOTION IN LIMINE NO 3. TO DISMISS DEFENDANT/CROSS- v. COMPLAINANT’S CLAIM UNDER CIVIL YOUR DIABETIC SUPPLIER, a California CODE § 1798.93; MEMORANDUM OF business entity of unknown origin; JOSHUA POINTS AND AUTHORITIES ROBINSON, an individual; FARDAD ADL } TABATABAIE, an individual; BRIAN ADL, an | Assigned for all Purposes to the Honorable individual; and DOES 1 through 20, inclusive, Judge Linda Marks Defendant. Filed: January 27, 2017 Trial: January 22, 2019 AND RELATED CROSS-COMPLAINT Time: 8:30 a.m. Dept.: C-10 PLEASE TAKE NOTICE that on January 22, 2019 at 8:30 a.m., or as soon thereafter as the matter may be heard, in Department C-10 of the above-entitled Court, Plaintiff/Cross-Defendant Select Bankcard, Inc., a Utah corporation (“Select Bankcard”) by and through its counsel of record, makes this motion in limine to dismiss Defendant/Cross-Complainant’s Claim under Civil Code GLOBAL LEGAL LAW FIRM By: pl | Ja . Huber, Esq. Attorneys for Plaintiff/Cross-Defendant Select Bankcard, Inc. section 1798.93. Dated: January 17, 2019 1 PLAINTIFF/CROSS-DEFENDANT’S NOTICE AND MOTION IN LIMINE NO 3 G L O B A L L E G A L L A W F I R M 3 8 0 S T E V E N S AV EN UE , SU IT E 31 1 S O L A N A B E A C H , C A L I F O R N I A 9 2 0 7 5 (8 88 ) 8 4 6 - 8 9 0 1 A N nn W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 27 28 MEMORANDUM OF POINTS AND AUTHORITIES L The Court should Exercise its Inherent Power to Utilize a Limine Motion to Dispose of Plaintiffs’ Cause of Action for Identity Theft As set forth in Select Bankcard’s Motion in Limine No. 1, courts have inherent power to utilize limine motions to dispose of a case or cause of action. (Amtower v. Photon Dynamics, Inc., (2008) 158 Cal.App.4th 1582, 1595; see also K.C. Multimedia, Inc. v. Bank of America Technology & Operations, Inc. (2009) 171 Cal.App.4th 939, 950-951.) Here, Robinson requests a civil penalty under Civ. Code § 1798.93. Civil Code section 1798.93 establishes a right of action by which a person may prove he or she is a victim of identity theft in connection with a transaction that has resulted in a claim against the person. (Civ. Code, § 1798.92 et seq.) Although the statute also allows for recovery of actual damages, attorneys fees and costs, and civil penalties related to debt collection activities against a victim of identity theft, each of these remedies requires proof that the debtor provided the claimant with appropriate written notice that he or she was an identity theft victim. (Civ.Code, § 1798.93, subd. (c)(5)-(6).) The “notice” required by Civil Code section 1798.93-or in any way to construe the statute- interpret this term consistently with an identity theft victim’s notice obligations under Civil Code section 1788.18. (See Pacific Gas & Electric Co. v. County of Stanislaus(1997) 16 Cal.4th 1143, 1152 [in construing ambiguous statutory language, “the court may examine the context in which the language appears, adopting the construction that best harmonizes the statute internally and with related statutes™].) Civil Code section 1788.18 sets forth that under California law, a debt collector is entitled to pursue collection activities against an alleged victim of identity theft until “receipt from [the] debtor of all of the following, . . . []] (1) A copy of a police report filed by the debtor alleging that the debtor is the victim of an identity theft crime ... [and][]] (2) The debtor’s written statement that the debtor claims to be the victim of identity theft with respect to the specific debt being collected by the debt collector.” (Civ.Code, § 1788.18, subd. (a), italics added.) Unless the alleged victim of identity theft provides both of the above items, the debt collector is entitled to pursue collection activities against an alleged victim. 2 PLAINTIFF/CROSS-DEFENDANT’S NOTICE AND MOTION IN LIMINE NO 3 G L O B A L L E G A L L A W F I R M 3 8 0 S T E V E N S AV EN UE , SU IT E 31 1 S O L A N A B E A C H , C A L I F O R N I A 9 2 0 7 5 (8 88 ) 8 4 6 - 8 9 0 1 A N nn W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 27 28 Moreover, Civil Code section 1788.18, subdivision (b) places strict requirements on the written statement that must be submitted. Specifically, the statement must take the form of either the Federal Trade Commission’s Affidavit of Identity Theft, a document containing all information in the California Office of Privacy Protection’s Identity Theft Victim’s Fraudulent Account Information Request, or a detailed declaration made subject to a misdemeanor penalty for any false statements. (Civ.Code, § 1788.18, subd. (b).) The Complaint does not allege Robinson complied with his statutory notice requirements, and the facts above show that Robinson did not comply with those obligations ever. Robinson partially complied with those obligations only following multiple motions to compel. To the extent that Robinson could have complied, he should have complied substantially sooner than he did. On July 28, 2017, Select Bankcard personally served interrogatories, requests for admissions, and document inspection demands (collectively, the “Initial Discovery”) all of which sought documents and information related to Robinson’s identity-theft related allegations in the Answer. (See Declaration of James C Huber in support, filed and served concurrently herewith (“JCH Dec.”), Iq 11-14, Exs. 6-10.) On August 17, 2017, Robinson requested an extension which Select Bankcard granted to August 25, 2017, but Robinson still failed to provide the documents on that date. (See JCH Dec. qq 15-16, Exs. 11-13.) On September 7, 2017, Robinson finally served his untimely Responses, which were entirely incomplete and included no new information other than what Select Bankcard had informally sent to Robinson. The Responses also improperly included objections, despite that he had been advised that he had waived all such objections because the Responses were untimely. (See JCH Dec. | 16, Ex. 13.) On September 19, 2017 at a case management conference, the foregoing discovery misconduct by Robinson was addressed. The Court advised Robinson that he could enter into a protective order to assuage any concerns regarding his reluctance to produce documents. That same day, Select Bankcard emailed Lawson stating that Select Bankcard would agree to a protective order. Robinson, however, never proposed nor discussed any protective order, even after Select 3 PLAINTIFF/CROSS-DEFENDANT’S NOTICE AND MOTION IN LIMINE NO 3 G L O B A L L E G A L L A W F I R M 3 8 0 S T E V E N S AV EN UE , SU IT E 31 1 S O L A N A B E A C H , C A L I F O R N I A 9 2 0 7 5 (8 88 ) 8 4 6 - 8 9 0 1 A N nn W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 27 28 Bankcard sent a draft protective order to Lawson months later. (See Declaration of Joshual. Herndon (“Herndon”) in support, filed and served concurrently herewith (“JJH Dec.”), 9 6-7, Ex. 4.) On September 22, 2017, Select Bankcard sent a meet and confer letter to Lawson regarding the deficiencies with the Responses. And on September 27, 2017, Huber emailed Lawson, “If you can show us it wasn’t your guy, we can obv. let him go. Mainly, if his DL doesn’t match up, or anything else, your arguments make sense. Can you send us that ASAP?” Herndon sent an email that same day reiterating the offer to review a protective order, which Lawson did not respond to. (See JJH Dec. 8, Ex. 5.) On October 3, 2017, Lawson emailed Huber’s office requesting another extension to respond to the meet and confer letter, which Select Bankcard granted up to October 9, 2018. On October 9, 2017, Lawson sent another request for an extension, which Select Bankcard again granted up through the next day.(See JCH Dec. | 18-20, Exs. 15-18.) On October 10, 2018, Lawson sent what purported to be a response to the meet and confer letter. But that letter did not include any additional documents, and did not address any of the deficiencies. (See JCH Dec. |] 21-22, Exs. 19-20.) The next day, Select Bankcard sent another meet and confer letter that identified the remaining unresolved procedural and substantive deficiencies with the Responses. Select Bankcard included a draft protective order to help expedite a resolution. (See JJH Dec. 9-11, Exs. 6-7.) Earlier, on October 2, 2017, Select Bankcard noticed the deposition of Robinson included a notice to bring documents related to Robinson’s identity theft claims, such as police reports and his driver’s license. (See JCH Dec. 23, Ex. 22.) On October 12, 2017, Huber took Robinson’s deposition, but Robinson did not produce any documents, nor did he produce his driver’s license in an unredacted format. But Robinson admitted during his deposition on October 12, 2017 that he has documents that refer or relate to his allegation that he is the victim of identity theft, including certain IRS dispute documents, credit monitoring-related documents, identity theft reports, and a police report, even though he earlier claimed in his verified discovery responses to have an inability to comply. Thus, Select Bankcard learned for the first time at Robinson’s deposition that he had 4 PLAINTIFF/CROSS-DEFENDANT’S NOTICE AND MOTION IN LIMINE NO 3 G L O B A L L E G A L L A W F I R M 3 8 0 S T E V E N S AV EN UE , SU IT E 31 1 S O L A N A B E A C H , C A L I F O R N I A 9 2 0 7 5 (8 88 ) 8 4 6 - 8 9 0 1 A N nn W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 27 28 reported the alleged identity theft, but he had still not produced any documents evidencing that. (See JCH Dec. |] 24-26, Ex. 21.) On October 16, 2017, Lawson emailed Huber that he would produce the documents related to ID theft identified at the deposition. (See JCH Dec. 27, Ex. 23.) Then, on October 23, 2017, Lawson sent six pages of documents that were clearly only partial excerpts of some of those documents, including only a partial excerpt from supplements to a police report that were dated in February 2017. (See JCH Dec. |] 28-29, Exs. 25-26.) That same day, Huber sent a meet and confer letter to Lawson explaining that the documents produced were only partial reports and were missing a lot of information and attachments, and that the other discovery responses also lacked complete information and that Select Bankcard wanted to avoid the cost of motion work. Select Bankcard requested a 30-day extension to file its motion to compel to allow Robinson to supplement its production. (See JCH Dec. 30, Ex. 27.) Despite having not produced the documents and information to allegedly exonerate his client, Lawson only agreed to a 15-day extension to file a motion to compel. (See JCH Dec. 31.) On October 27, 2017, Select Bankcard sent yet another meet and confer letter to Lawson setting forth in detail all the issues with the previous discovery responses. (See JJH Dec. 12, Ex. 8.) On November 6, 2017, Lawson responded that the deadline of November 9, 2017 was not enough time for him to respond. (See JJH Dec. | 13, Ex. 9.) Select Bankcard sent another email asking why that was not enough time, but Lawson never responded to any of the multiple follow up correspondence from Select Bankcard regarding the forthcoming deadline to file a motion to compel due to that Lawson only agreed to extend the deadline to November 9, 2017. (See JJH Dec. | 14-16, Exs. 10-11.) Select Bankcard filed the motion to compel on November 9, 2017. (See JJH Dec. | 17.) After Robinson’s deposition, November 21, 2017, he provided some additional documents in response to the Set One Requests (the “Productions”), including (for the first time) excerpts from police reports with a reported date of February 6, 2017, credit reports, and IRS identity-theft affidavits and transcripts. However, nearly all those documents pre-dated the Set One Responses, and Robinson should have produced them with the Set One Responses. Notwithstanding the 3 PLAINTIFF/CROSS-DEFENDANT’S NOTICE AND MOTION IN LIMINE NO 3 G L O B A L L E G A L L A W F I R M 3 8 0 S T E V E N S AV EN UE , SU IT E 31 1 S O L A N A B E A C H , C A L I F O R N I A 9 2 0 7 5 (8 88 ) 8 4 6 - 8 9 0 1 A N nn W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 27 28 Productions, Robinson also failed to voluntarily produce all documents responsive to the Set One Requests. (See JJH Dec. | 18, Ex. 12.) On March 12, 2018, the Court granted Select Bankcard’s motions to compel and ordered that Robinson pay sanctions. On April 23, 2018, Robinson served amended responses to the form interrogatories (set one) and request for production (set one) and produced additional documents in response to RFP (set one). The additional documents produced by Robinson included additional documents related to a police report. (See JJH Dec. 26, Ex. 15.) As set forth above, Robinson apparently filed a police report, as well as several supplements to that police report, in February 2017. That was approximately five months before Select Bankcard propounded inspection demands to which the police report and its supplements were responsive. As such, Select Bankcard requested the police report and the supplements thereto, and Robinson should have produced those items in response to that discovery, as those items obviously predated that discovery by several months. However, rather than produce those items, Robinson not only withheld those items, it represented in its verified written responses that those items didn't even exist. Robinson only produced those documents under threat of, and in response to, a motion to compel. In fact, as this Court is well-aware, Select Bankcard had to literally fight with Robinson tooth and nail to obtain those items. Given the lengths to which Robinson went to deny the existence of those items, and later to produce them to Select Bankcard during the course of its investigation of his identity theft allegations. In addition to the foregoing issues involving the police report, Robinson did not produce the FTC Affidavit until after a motion to compel, a year after he filed such documents, and requested a copy from the FTC. Further, Robinson never provided a document containing all information in the California Office of Privacy Protection's Identity Theft Victim's Fraudulent Account Information Request, or a detailed declaration made subject to a misdemeanor penalty for any false statements as set forth in Civ.Code § 1788.18, subds. (b)(3). For the above reasons, Select Bankcard had no obligation to cease debt collection activities, and would not have any such obligation, until it had received the required documents from Robinson (Civ.Code, § 1788.18, subds. (a) & (d)). 6 PLAINTIFF/CROSS-DEFENDANT’S NOTICE AND MOTION IN LIMINE NO 3 G L O B A L L E G A L L A W F I R M 3 8 0 S T E V E N S AV EN UE , SU IT E 31 1 S O L A N A B E A C H , C A L I F O R N I A 9 2 0 7 5 (8 88 ) 8 4 6 - 8 9 0 1 A N nn W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 27 28 And the fact that Robinson vehemently refused to provide such documents supports that Robinson cannot support his claim. Further, Civil Code section 1798.92(d) defines a victim of identity theft as: [A] person who had his or her personal identifying information used without authorization by another to obtain credit, goods, services, money, or property, and did not use or possess the credit, goods, services, money, or property obtained by the identity theft, and filed a police report in this regard pursuant to Section 530.5 of the Penal Code. Thus, the filing of a police report is a prerequisite to Robinson becoming a victim of identity theft. But Robinson did not provide a police report until he was compelled to do so. Granted Robinson provided excerpts of the report, but those excerpts did not include that Select Bankcard was at issue. Those reports only included Amazon payments. Robinson eventually amended his report to include Select Bankcard, but it was not until about a month until Robinson produced the documents to support his claims. Further, for Robinson to get his civil penalty, he must establish that he is the victim of identity theft as defined in Penal Code § 530.5 by a preponderance of the evidence in order to prevail. Penal Code § 530.5 states: (a) Every person who willfully obtains personal identifying information, as defined in subdivision (b) of Section 530.55, of another person, and uses that information for any unlawful purpose, including to obtain, or attempt to obtain, credit, goods, services, real property, or medical information without the consent of that person, is guilty of a public offense . . . Id. Here, Robinson cannot show that Select Bankcard willfully used Robinson’s personal identifying information. Select Bankcard is a victim of the alleged fraud, certainly not the perpetrator. Robinson is unable to establish his claim under 1798.93. Therefore it would be improper and prejudicial to Select Bankcard to permit Robinson to introduce evidence in support of this claim. Further, admission of evidence in support of Robinson’s claim would confuse the issues presented, mislead the jury, and result in an undue consumption of time. 111 111 7 PLAINTIFF/CROSS-DEFENDANT’S NOTICE AND MOTION IN LIMINE NO 3 G L O B A L L E G A L L A W F I R M 3 8 0 S T E V E N S AV EN UE , SU IT E 31 1 S O L A N A B E A C H , C A L I F O R N I A 9 2 0 7 5 (8 88 ) 8 4 6 - 8 9 0 1 A N nn W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 27 28 II. CONCLUSION As set forth in Select Bankcard’s Motion in Limine No. 1, courts have inherent power to utilize limine motions to dispose of a case or cause of action. For the reasons set forth above, and documents filed in support hereof. Select Bankcard respectfully requests that the Court dismiss Robinson’s request for a civil penalty under Civ. Code § 1798.93. GLOBAL LEGAL LAW FIRM By: pal Ja . Huber, Esq. Attorneys for Select Bankcard/Cross-Robinson Select Bankcard, Inc. Dated: January 17, 2019 8 PLAINTIFF/CROSS-DEFENDANT’S NOTICE AND MOTION IN LIMINE NO 3
