Reply To Opposition To Mtc Rfa

Reply

Cal. Super. - 4th Dist.March 18, 2019

iN O e 3 O N Wn 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DAVID N. BARRY, ESQ. (SBN 219230) THE BARRY LAW FIRM 11845 W. Olympic Blvd., Suite 1270 Los Angeles, CA 90064 Telephone: 310.684.5859 Facsimile: 310.862.4539 Attorney for Plaintiff, JASON ANDREW DAVENPORT SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF ORANGE - CENTRAL JUSTICE CENTER COURTHOUSE JASON ANDREW DAVENPORT, an Case No. 30-2019-01058285-CU-BC-CIC individual, PLAINTIFF'S REPLY TO OPPOSITION OF FCA US, LLC TO MOTION TO Plaintiff, COMPEL FURTHER RESPONSES TO REQUESTS FOR ADMISSION NOS. 2, 14, Vv. 17, 18,20 AND 24 L. Reservation: 73138560 FCA US, LLC, A Delaware Limited on Date: January 10, 2020 Liability Company; J. A. MOSS, INC. dba | Time: 10:00 a.m. Dept.: C24 MOSS BROS CHRYSLER DODGE JEEP RAM FIAT RIVERSIDE, A California | Action Filed: March 18,2019 Trial Date: None Corporation; and DOES 1 through 20, Assigned for all purposes to the Hon. Thomas inclusive, A. Delaney in Dept. C24 Defendants. L INTRODUCTION FCA's Opposition has three fundamental defects. First, FCA suggests that plaintiff needs good cause for requesting the information sought by the six (6) Requests for Admission that are at issue in plaintiff's motion. Defendant could not be more mistaken. In fact, FCA's attempt to extrapolate and apply the discovery statute governing document production requests (C.C.P. § -1- PLAINTIFF'S REPLY TO OPPOSITION OF FCA US, LLC TO MOTION TO COMPEL FURTHER RESPONSES TO REQUESTS FOR ADMISSION NOS. 2, 14,17, 18,20 AND 24 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2031) to the admissions statute (C.C.P. § 2033) is intellectually disingenuous and is nothing short of a fraud on the court. "Good cause" is not needed to serve Requests for Admission or to seek further responses, particularly when it is clear that FCA's responses are evasive and an abuse of discovery. Second, FCA argues that plaintiff failed to adequately meet and confer. Again, FCA is misleading the Court. FCA has dragged its feet. It never substantively responded to plaintiff's meet and confer letter and it never supplemented its responses. Plaintiff actually had no choice but to file. Finally, FCA's Opposition memorandum completely fails to set forth a cogent and viable defense to plaintiff's substantive concerns. Each of the Requests propounded was directed at issues that are part of plaintiff's liability and damages case. FCA presumes that saying its responses are appropriate without showing why is sufficient. It is not. FCA has woefully failed to support its resistance to these lawful and clearly drawn Requests and its Separate Statement simply reargues what is set forth in the Opposition Memorandum. Plaintiff's motion should be granted. II. PLAINTIFF'S MEET AND CONFER EFFORTS WERE MORE THAN ADEQUATE FCA also argues that plaintiff has failed to adequately meet and confer. Apparently, FCA missed that part of plaintiff's motion that details the parties meet and confer process which failed to produce appropriate supplementation before the filing window expired. Plaintiff filed on October 1, 2019. Plaintiff certainly acknowledges that FCA may have been interested in settling this case without the need for motion practice. However, when it is clear that no case resolution would result, the onus was on FCA to substantively address the discovery issues presented by the plaintiff. Given FCA's foot dragging, plaintiff had no choice but to file his motions. It is for that reason that plaintiff filed. FCA's disingenuous claim that the meet and confer process "was working" is a complete fiction and utterly ridiculous because nothing resulted. D- PLAINTIFF'S REPLY TO OPPOSITION OF FCA US, LLC TO MOTION TO COMPEL FURTHER RESPONSES TO REQUESTS FOR ADMISSION NOS. 2, 14, 17, 18, 20 AND 24 Oo 0 N N 10 11 12 13 14 15 16 17 18 19 20 24 22 23 24 25 26 27 28 At its core, plaintiff was not obligated to continue efforts to convince FCA that its discovery responses were inadequate when it was clear it had locked into a position. At some point, it became clear that FCA was only going to respond to a Court order. III. FCA MISTAKENLY CLAIMS THAT PLAINTIFF'S REQUESTS FOR ADMISSION REQUIRED GOOD CAUSE FCA mistakenly argues that plaintiff’ needs good cause for requesting the information sought by the six (6) Requests for Admission that are at issue in plaintiff's motion. FCA is completely mistaken. "Good cause" is not needed to serve Requests for Admission nor is good cause needed to seek further responses on such Requests when the responses do not comport with minimum legal requirements. Indeed, FCA's failure to identify one single authority for this proposition makes it clear that no such authority exists and its attempt to extrapolate and apply the discovery statute governing document production requests (C.C.P. § 2031) to the admissions statute (C.C.P. § 2033) is intellectually disingenuous and nothing short of a fraud on the court. As the Court is aware, Requests for Admission are not "true" discovery and thus are not discovery devices, per se. Burch v. Gombos (2000) 82 Cal. App.4th 352, 359. They are designed to set to rest, triable issues of fact with the ultimate goal of expediting trial and the unnecessary expenses of proof at trial. Cembrook v. Superior Court (1961) 56 Cal.2d 423; St. Mary v. Superior Court (2014) 223 Cal.App.4™ 762; Hillman v. Stultz (1968), 263 Cal. App.2d 848, 885. ("They were enacted to eliminate the necessity of putting on formal proof of essentially uncontroverted facts, not as a substitute for trial of genuinely disputed facts."). Accordingly, when a litigant "toys" with the process by evading a factual proposition by avoiding or discounting the materials that provide the response to such requests such that the real issues are revealed, it defeats the purpose and the function of the requests and unduly forces plaintiff to waste time, money and energy proving factual propositions that can and should be admitted during pre-trial discovery. That is the situation here. Each of the requests at issue can be conclusively admitted (or denied) based on the information available to FCA. That information consists of dealer records, internal company records and materials and even expert information. FCA's objections are specious. Requests for admissions may indeed call for a legal conclusion, i.e., the application of law to fact. 3 PLAINTIFF'S REPLY TO OPPOSITION OF FCA US, LLC TO MOTION TO COMPEL FURTHER RESPONSES TO REQUESTS FOR ADMISSION NOS. 2, 14, 17, 18, 20 AND 24 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CCP § 2033.010 ["Any party may obtain discovery ... by a written request that any other party to the action admit . . . the truth of specified matters of fact, opinion relating to fact, or application of law to fact. Similarly, a request for admission may relate to a matter that is in controversy between the parties."]; Garcia v. Hyster (1994) 28 Cal. App.4™h 724, 735 [whether employer was "negligent" and whether such negligence was the legal cause of injuries"|; Burke v. Superior Court (1969) 71 Cal.2d 276, 280. Defendant's refusal to respond with conclusive admissions or denials as the Code of Civil Procedure is indefensible. IV. FCA'S RESPONSES TO THE REQUESTS FOR ADMISSION AT ISSUE ARE EVASIVE AND IMPROPER BECAUSE ALL OF THE INFORMATION NECESSARY TO PROVIDE CONCLUSIVE ADMISSIONS OR DENIALS TO THESE REQUESTS IS AVAILABLE TO FCA, ITS ATTORNEYS AND ITS EXPERTS FCA insists that its "responses" to the Requests at issue were appropriate because it simply has not done sufficient discovery to allow it the ability to respond with h a conclusive admission or denial. FCA's feigned ignorance is not convincing. FCA's attorneys have all of the information needed to respond to these Requests. It simply chooses to ignore the obvious to claim "insufficient information. FCA's responses are textbook examples of "waffling" intended to evade the conclusiveness of an admission while avoiding the penalty of prove-up sanctions in the event plaintiff prevails at trial. No litigation inspection and no plaintiff deposition will answer the factual propositions posed by these requests. Neither will confirm whether plaintiff "contacted" the defendant regarding the subject vehicle (an innocuous request that goes to damages) neither will reveal if the dealership is an authorized agent for warranty repairs and neither will reveal whether evidence of misuse or abuse (an affirmative defense) was documented by defendant or its authorized dealership. Try as FCA might to justify its responses to the Requests for Admission at issue, its opposition simply fails to supply a cogent and legitimate reason for its failure to either admit or 4- PLAINTIFF'S REPLY TO OPPOSITION OF FCA US, LLC TO MOTION TO COMPEL FURTHER RESPONSES TO REQUESTS FOR ADMISSION NOS. 2, 14,17, 18,20 AND 24 wn Re W N o w a9 A 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 deny, conclusively, the Requests at issue. A greater example of discovery misuse and abuse cannot be found. Plaintiff's motion should be granted. V. PLAINTIFF'S SANCTIONS REQUEST IS APPROPRIATE FCA argues that plaintiff is not entitled to sanctions because the motions were unnecessary and filed in bad faith or intended to generate attorney's fees. Plaintiff has filed his motions to protect her discovery rights in the face of a looming deadline. Discovery is a self-executing process and motion practice should not be pursued unless absolutely necessary. FCA's discovery gamesmanship pushed plaintiff to file these motions and it cannot now complain that it is exposed to sanctions. FCA should have thought of its approach more carefully when it responded to plaintiff's discovery. Sanctions are warranted and should be granted. VI. CONCLUSION FCA has failed to show any substantive ground for denying plaintiff's motion and it has failed to demonstrate why sanctions are not warranted. The motion should be granted. Date: January 3, 2020 THE B B y: .. DAVIDN. BARRY, ESQ. Attorney for Plaintiff, JASON ANDREW DAVENPORT -5- PLAINTIFF'S REPLY TO OPPOSITION OF FCA US, LLC TO MOTION TO COMPEL FURTHER RESPONSES TO REQUESTS FOR ADMISSION NOS. 2, 14,17, 18,20 AND 24 © Le NN S N Wn hk W N N O N ND N N N N N N em e m ee ee e d h d e d be d pe d ee 0 N N Wn BR W N O N O S N E W N = O PROOF OF SERVICE STATE OF CALIFORNIA COUNTY OF ORANGE DAVENPORT V. FCA US LLC, ET AL. CASE # 30-2019-01058285-CU-BC-CJC I am employed in the County of Los Angeles, State of California. I am over the age of eighteen (18) years and not a party to the within action; my business address is: 11845 W. Olympic Boulevard, Suite 1270, Los Angeles, CA 90064. On January 3, 2020, I served the following described as: PLAINTIFF'S REPLY TO OPPOSITION OF FCA US, LLC TO MOTION TO COMPEL FURTHER RESPONSES TO REQUESTS FOR ADMISSION NOS. 2, 14,17, 18,20 AND 24 Service was made in the below ascribed manner, on the interested parties in this action by placing a true copy thereof enclosed in a sealed envelope addressed to: PLEASE SEE ATTACHED SERVICE LIST [1] (MAIL) I am "readily familiar" with the legal department’s practice for collection and processing of correspondence for mailing. It is deposited with the U.S. postal service on that same day in the ordinary course of business. I am aware that on motion of the party served, service is presumed invalid if the postal cancellation date or postage meter date is more than one day after the date of deposit for mailing in affidavit. [X] (OVERNIGHT DELIVERY MAIL) I caused the above described document to be served on the interested parties noted below by GSO Delivery Service in an envelope or package designated by the express service carrier in a facility which is deposited with the GSO Delivery Service in our building on the same day, in the ordinary course of business with delivery fees paid or provided for. [] (PERSONAL SERVICE) I caused the above described document to be personally served on the interested parties noted below. [] (BY FAX) I caused such document to be delivered by Facsimile (fax) to the offices of the addressee. [X] (STATE) I declare under penalty of perjury under the laws of the State of California that the above is true and correct. Executed on the 3" of January 2020, at Los Angeles, C Valerie Salazar A NAME + PROOF OF SERVICE O e 0 S N n h ke W N BN RN ND N N N N N N ke ee d e d e d he d p d e d ed e d p d KR 9 A N nn RE W N = O O N S N R W N e © SERVICE LIST DAVENPORT V.FCA US LLC, ET AL. CASE # 30-2019-01058285-CU-BC-CJC Michael J. Gregg, Esq. Mark Skanes, Esq. Rose Waldorf LLP 100 Oceangate, Suite 300 Long Beach, CA 90802 Attorneys for Defendants, FCA US LLC and J.A. MOSS, INC. dba MOSS BROS CHRYSLER DODGE JEEP RAM FIAT RIVERSIDE PROOF OF SERVICE