Objection_to_separate_statement_filed_with_reply

Reply

Cal. Super. - 2nd Dist.October 28, 2016

Electronically FILED by Supelbr Court of California, County of Los Angeles on 02/22/2019 11:44 AM Sherri R. Carter, Executive Officer/Clerk of Court, by R. Sanchez,Deputy Clerk EA N ~N O N Wn 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 LAW OFFICES OF DAVID H. GREENBERG DAVID H. GREENBERG - State Bar No. 37950 EMILY RUBY -— State Bar No. 289433 6100 Wilshire Boulevard, Suite 1170 Los Angeles, California 90048 Telephone No.: (323) 782-0500 Fax No.: (323) 782-0543 Attorneys for Plaintiffs, LANDY MIS, JESSIE AGUILAR by and through his GAL, GISSELLE AGUILAR, By and through her GAL SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF LOS ANGELES - SOUTHEAST DISTRICT/NORWALK LANDY MIS, JESSIE AGUILAR by Case No.: BC620931 and through his GAL, GISSELLE AGUILAR, Dept.: F by and through her GAL Judge: Hon. Margaret M. Bernal Plaintiffs, PLAINTIFFS’ OBJECTION TO v. ADDITIONAL EVIDENCE AND SEPARATE STATEMENT FILED WITH ARTURO DON DIEGO, CARLOS DON REPLY DIEGO, IGNACIO DON DIEGO DIAZ, IGNACIO DON DIEGO HERNANDEZ, . SMARK COMPANY, SMARK pate: re oy 26,2019 CHEMICALS, and DOES 1 through 100, : oY pm. inclusive, Dept.: C Defendants. Complaint Filed: May 18, 2016 Trial Date: May 28, 2019 Reservation ID: 181017357589 TO THE COURT, ALL PARTIES HEREIN, AND TO THEIR ATTORNEYS OF RECORD: Plaintiffs Landy Mis, Jessie Aguilar, and Gisselle Aguilar, by and through her guardian ad litem, hereby Plaintiff hereby objects to Defendant’s unauthorized Reply Separate Statement and Request for Judicial Notice, which contain argument and new evidence. Plaintiffs request the Court strike and disregard the unauthorized filing. PLAINTIFFS’ OBJECTION TO ADDITIONAL EVIDENCE AND SEPARATE STATEMENT FILED WITH REPLY EA N ~N O N Wn 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CRC 3.1113 strictly limits a Reply memorandum to 10 pages, so a Reply Separate Statement is often used as an end-run around this page limitation. However, no such pleading is allowed. (Nazir v. United Airlines, Inc. (2009) 178 Cal. App.4th 243, 249, 252 (finding with respect to the Defendant’s submission of a Reply Separate Statement — “There is no provision in the statute for this”). If Defendant wanted to respond to Plaintiff’s statement of additional facts, or show how Plaintiff did not refute certain of Defendant’s facts, the proper place to have done so was in the Reply, and not in an unauthorized Reply Separate Statement. Defendant’s gratuitous attempt to expand the page limits of their Reply should not be allowed. Further, Plaintiff requests the Court to disregard the Request for Judicial Notice filed with the Reply and the Declaration of Leslie Burnett, as well as the exhibits attached thereto, in which Defendant seeks to add additional pieces of evidence: Exhibits A through E. A party moving for summary judgment may not rely on new evidence filed with its reply papers as this would violate Plaintiffs’ due process rights to be fully informed as to the issues it must meet to defeat the motion. (San Diego Watercrafts, Inc. v. Wells Fargo Bank, N.A. (2002) 102 Cal.App.4th 308, 316). The California Supreme Court has recognized that new issues raised in reply briefs would be considered only in exceptional cases in which the party has shown in an application “meritorious reasons why the points were not made in the opening brief. Such application might be based upon sickness, inadvertence, or other excusable neglect. But in the case at bar no reason whatever is given for this departure from the ordinary method of presenting a case in this court.” (Kahn v. Wilson (1898) 120 Cal. 643, 644; see also, Balboa Ins. Co. v. Aguirre (1983)' 149 Cal.App.3d 1002, 1010). Courts of Appeal in California have repeatedly refused to consider the introduction of any new issues or evidence in a reply that was not originally provided to the opposing party. (See, e.g., Reichardt v. Hoffman (1997) 52 Cal. App. 4th 754, 764 [the Court of Appeal refused to consider new issues raised in a reply brief]; San Diego Watercraft v. Wells Fargo Bank, N. A. (2002) 102 Cal. App. 4th 308, 310, 312 [Court of Appeal reversed a summary judgment where the moving party had submitted for the first time a supplemental declaration containing new facts in its reply papers]). Based upon the well-established law and Plaintiffs’ objections to additional evidence and 2 PLAINTIFFS’ OBJECTION TO ADDITIONAL EVIDENCE AND SEPARATE STATEMENT FILED WITH REPLY EA N ~N O N Wn 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 reply separate statement, the Court should disregard the reply separate statement, request for judicial notice, and additional evidence in their entirety. DATED: February 22, 2019 LAW OFFICES OF DAVID H. GREENBERG Oo MN ) By: anid EMILY A. yon DAVID H. GREENBERG Attorneys for Plaintiffs, LANDY MIS, et. a 3 PLAINTIFFS’ OBJECTION TO ADDITIONAL EVIDENCE AND SEPARATE STATEMENT FILED WITH REPLY EA N ~N O N Wn 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PROOF OF SERVICE STATE OF CALIFORNIA, COUNTY OF LOS ANGELES I am employed in the county of Los Angeles, State of California. I am over the age of 18 and not a party to the within action; my business address is 6100 Wilshire Boulevard, Suite 1170, Los Angeles, California 90048. On February 22, 2019, I served the foregoing document described as PLAINTIFFS’ OBJECTION TO ADDITIONAL EVIDENCE AND SEPARATE STATEMENT FILED WITH REPLY the interested parties in this action by placing a true copy thereof enclosed in a sealed envelope addressed to the interested parties listed as follows: [1 BY MAIL, I placed said documents in a sealed envelope and placed them for collection to be deposited, with postage fully prepaid, in the U.S. Mail at Los Angeles, California. I am "readily familiar" with the firm's practice of collection and processing correspondence for mailing. Under that practice it would be deposited with U.S. postal service on that same day with postage thereon fully prepaid at Los Angeles, California in the ordinary course of business. I am aware that on motion of the party served, service is presumed invalid if postal cancellation date or postage meter date is more than one day after date of deposit for mailing in affidavit. [XX] BY FEDEX OVERNIGHT DELIVERY: I enclosed the documents in an envelope or package provided by an overnight delivery carrier and addressed to the persons at the addresses listed on the proof of service. I placed the envelope or package for collection to be deposited at a regular utilized drop box of the overnight delivery carrier. [XX] BY ELECTRONIC SERVICE, I caused such documents to be electronically served on the eServe Recipients registered in this case with the Superior Court of California County of Los Angeles STATE: I declare under penalty of perjury under the laws of the State of California that the above is true and correct. Executed on February 22, 2019, at Los Angeles, California. INV ems | LETICIA MORENO PROOF OF SERVICE EA N ~N O N Wn 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 SERVICE LIST Attorneys for Defendants Arturo Dondiego, Smark Company, et al. Russell S. Wollman, Esq. Darin Flagg, Esq. Murchison & Cumming, LLP 801 S. Grand Ave., 9" Floor Los Angeles, CA 90017 Tel. No.: (213) 623-7400 Email: rwollman@murchisonlaw.com; dflagg(@murchisonlaw.com Attorneys for Defendant Hoover Materials Handling Group, Inc. Stephen Acker Leslie Anne Burnet Acker & Whipple 811 Wilshire Blvd., Ste. 700 Los Angeles, CA 90017 Tel. No: (213) 347-0240 Fax No.: (213) 623-1957 Email: LeslieBurnet@A ckerandWhipple.com; StephenAcker@AckerandWhipple.com Attorneys for Defendant Univar USA, Inc. Mark D. Sayre, Esq. Angela V. Sayre, Esq. Foley & Mansfield, LLP 300 S. Grand Avenue, Ste. 2800 Los Angeles, CA 90071 Tel. No.: (213) 283-2100 Fax No.: (213) 283-2101 Email: msayre@foleymansfield.com; asayre(@foleymansfield.com Attorneys for Defendant Vanguard Environmental, et al. Nicholas R. Graham, Esq. Christian E. Bredeson, Esq. Collins Collins Muir and Steward, LLP 750 The City Drive, Suite 400 Orange, CA 92868 Tel. No.: (714) 823-4100 Fax No.: (714) 823-4101 Email: ngraham@ccmslaw.com; cbredeson@ccmslaw.com PROOF OF SERVICE