Opposition_plaintiffs_opposition_to_defendants_motion_to_continue_trial

Motion

Cal. Super. - 2nd Dist.July 20, 2017

Electronically FILED by Superior Court of California, County of Los Angeles on 03/14/2019 09:59 AM Sherri R. Carter, Executive Officer/Clerk of Court, by L. Coreas,Deputy Clerk © © NN ON wn RA W N N N D N N N N N m e e e e e e e e = Cc ~~ O O wn RA W O N = S O N N N RE W N — Oo James A. Morris, Esq. (SBN 296852) Shane E. Greenberg, Esq. (SBN 210932) MORRIS LAW FIRM 4111 Alameda Avenue, Suite 611 Burbank, CA 91505 Tel: (747) 283-1144 Fax: (747) 283-1143 Attorneys for Plaintiff, KAILEE ZIMMERMAN aka KAILEE GRAVES SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF LOS ANGELES KAILEE ZIMMERMAN aka KAILEE GRAVES, Plaintiff, V. DAVID MAYER; UBER TECHNOLOGIES, INC., and DOES 1-50, INCLUSIVE, Defendants. Case No.: BC669309 PLAINTIFF’S OPPOSITION TO DEFENDANT UBER TECHNOLOGIES, INC.’s MOTION TO CONTINUE TRIAL AND ALL RELATED DATES; DECLARATION OF JAMES MORRIS, ESQ.; REQUEST FOR JUDICIAL NOTICE Submitted with Request for Judicial Notice and Declaration of Plaintiff's Attorney James A. Morris Hearing Date: March 27, 2019 Time: 1:30 p.m. Place: Department 2 312 North Spring Street, Los Angeles, CA 90012 Complaint Filed: July 20, 2017 Trial Date: May 22,2019 TO THE COURT, ALL PARTIES AND TO THEIR RESPECTIVE ATTORNEYS OF RECORD: i OPPOSITION TO DEFENDANT UBER TECHNOLOGIES, INC.’s MOTION TO CONTINUE TRIAL AND ALL RELATED DATES OO 0 9 S Y nn R W N D N O N N N N N N N N mm mm e m e m pe ee p e p e e d ee 0 ~~ S N nn BR W N = o N S N W N = O Plaintiff KAILEE ZIMMERMAN aka KAILEE GRAVES hereby submits her OPPOSITION TO DEFENDANT UBER TECHNOLOGIES, INC.’s MOTION TO CONTINUE TRIAL AND ALL RELATED DATES, as follows: MEMORANDUM OF POINTS & AUTHORITIES LI. INTRODUCTION This incident occurred on February 23, 2017. Two years later, discovery is substantially completed and Plaintiff KAILEE ZIMMERMAN aka KAILEE GRAVES (“GRAVES”) has concluded her medical treatment. To date, neither Defendant UBER TECHNOLOGIES, INC. (“UBER”), nor Defendant DAVID MAYER (“MAYER”) has tendered a reasonable settlement offer. The parties are ready for trial. Now, two individuals have filed separate actions against Defendant UBER and Defendant MAYER. These lawsuits emanate as a result of the conduct of Defendants UBERT and MAYER and have nothing to do with Plaintiff GRAVES. The herein trial was originally set for January 22, 2019. By stipulation, the parties agreed to continue to May 22, 2019. It will be unfairly prejudicial to Plaintiff to further delay the trial, because two individuals come lately to allege separate claims against these Defendants. As shown, good cause does not exist for another continuance of the current trial date. IL. FACTUAL & PROCEDURAL BACKGROUND On February 23, 2017, GRAVES, who was driving her 2009 Ford Escape Hybrid, stopped at a traffic signal northbound on South Sherbourne Drive at the intersection of Pico Boulevard in 2- OPPOSITION TO DEFENDANT UBER TECHNOLOGIES, INC.’s MOTION TO CONTINUE TRIAL AND ALL RELATED DATES © o e NN S N BA 10 1 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Los Angeles. After the traffic light facing her turned green, Plaintiff proceeded into the intersection whereupon she was violently struck by Defendant MAYER, driving a 2016 Honda Fit, who had run the red light while travelling westbound on Pico Boulevard in violation of California Vehicle Code §21453. At the time of this incident, MAYER was acting within the course and scope of his employment and/or agency with Defendant UBER. As a result, GRAVES sustained severe injuries to her left shoulder and neck, from which she continues to suffer, as well as extreme anxiety and mental distress. Plaintiff also sustained property damage in excess of $6,500.00. Defendants UBER and MAYER were served with the Complaint on July 21, 2017, and July 25, 2017, respectively. Declaration of James A. Morris, 48 and Exhibit 3. The Court initially assigned a trial date of January 22, 2019. Declaration of James A. Morris, 48 and Exhibit 2. The parties stipulated to continue the trial date to May 22,2019. Declaration of James A. Morris, 99 and Exhibit 2. This stipulation also moved the Final Status Conference from January 3, 2019 to May 10, 2019, and moved the discovery and motion cut-off dates, as well. Declaration of James A. Morris, 49 and Exhibit 2. Importantly, the Stipulation to Continue the Trial, signed by the parties and so ordered on December 13, 2018, does not permit the continuance requested by Defendant UBER, because while two stipulations to continue are permitted, said continuances may only be “for a total continuance of six months.” Declaration of James A. Morris, §10 and Exhibit 2. The first continuance, from January 22" to May 22", amounted to four months, so according to the stipulation previously signed, the parties could agree to another two months. Declaration of James A. Morris, §10 and Exhibit 2. However, Defendant UBER now wants to push the trial back 13 months. 3- OPPOSITION TO DEFENDANT UBER TECHNOLOGIES, INC.’s MOTION TO CONTINUE TRIAL AND ALL RELATED DATES No Ow LL 3 O N n n Be WwW 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 2:3 26 2d 28 Plaintiff has participated in discovery, with her Deposition completed January 11, 2019. Declaration of James A. Morris, §11. Defendant UBER falsely alleges Plaintiff has “recently modified the damages she intends to allege,” asserting Plaintiff only recently claimed loss of earnings or loss of earning capacity. Motion, 8:16-20. Plaintiff’s Complaint, filed July 20, 2017, shows she clearly alleged both. Declaration of James A. Morris, §12 and Exhibit 1. Plaintiff saw various health care providers to treat her shoulder, neck and emotional distress injuries sustained in the subject incident, including the following: Ronald Reagan UCLA Medical Center (emergency services) Will Flores, P.A.C. (primary care) Rajan Patel, M.D. (orthopedic specialist) Jon Kaufmann (physical therapist) Ryan Dellamaggoria, M.D. (orthopedic specialist) Mink Radiologic Imagining Medical Association, Inc. (radiology) e Pro Health Advanced Imaging Medical Group (radiology) Defendants were made aware of all the above in discovery served by Plaintiff on July 20, 2018. Declaration of James A. Morris, 13 and UBER’S Exhibit A, No. 6.4. Plaintiff was hoping her injuries and treatment for same would not impact her earnings or earning capacity, which is why discovery responses served at that same time did not include information regarding same. Declaration of James A. Morris, 14 and UBER Exhibit A. Unfortunately, this later proved not to be the case. Declaration of James A. Morris, §14. That is why, at her Deposition six months after her discovery responses were served, Plaintiff testified the injuries she sustained in this incident will, in fact, negatively impact her earnings and earning capacity. Declaration of James A. Morris, §14 and UBER Exhibit B. Notably, when trial was still set for January 22, 2019, Defendants never served additional discovery, including supplemental discovery. Declaration of James A. Morris, 414. 4- OPPOSITION TO DEFENDANT UBER TECHNOLOGIES, INC.’s MOTION TO CONTINUE TRIAL AND ALL RELATED DATES S O 0 NN YN Wn RA W N N O N N N N N e e e s ee ee = e e e ® A N h E W O N em Oo Oo N N y n R A W ND On January 11, 2019, Defendants took Plaintiff’s deposition (UBER Exhibit A), at which time she clearly testified regarding loss of earnings and earning capacity: Q. Okay. You are making a loss of earnings claim; correct? A.. Uh-huh. Q. Yes? A. Yes. ® kk Q. Okay. So what is the basis of your loss of earnings claim that you cannot do your job, you cannot do your job as well, as often? Describe it for me in your own words. A. I was unable to perform my job duties. I would do everything through the computer. Typing for periods of time, even over 20 minutes, would begin to agitate my injury. Therefore, I had to take a lot of breaks. And over time it just built and built to where I was more of a hindrance at times than able to perform my job. Emphasis added. UBER Exhibit B, 27:7-28:15 As testified, knowledge that the herein injuries were and would impact her employment came about over time. Id. Further, six months earlier, Plaintiff had already provided relevant employment information with her Responses to Form Interrogatories, Set One, No. 2.6 (served July 20, 2018). Declaration of James A. Morris, 15 and UBER Exhibit A. By the time Plaintiffs deposition was taken, the trial had been pushed to May 22, 2019. Clearly, with still over four months before trial, Defendants had plenty of time to obtain Plaintiff's employment records and vet her claim in this regard. However, UBER now complains in its Motion it “will take at least sixty days” to obtain the discovery it needs. Motion, 9:8-9. Had UBER acted promptly two months ago on January 11%, it would already have in its possession the records it is bemoaning. That Defendants failed to act on this information to date, notwithstanding that on January 11, 2019, they were advised of Plaintiff's job loss due to the subject incident, should not operate to prejudice Plaintiff of her secured trial date. Notably, as of the date of the filing of the herein Opposition, 5. OPPOSITION TO DEFENDANT UBER TECHNOLOGIES, INC.’s MOTION TO CONTINUE TRIAL AND ALL RELATED DATES © 0 NN a wn BA W N N O N N N N N N N N ee e e e s e m e m em e t c o ~~ O N Wn bs W N = D Y N N S y R W ND s O Plaintiff’s counsel still has not received notice of any subpoena for Plaintiff’s employment records. Declaration of James A. Morris, 416. IIL. LAW AND ARGUMENT A. Trial Dates Are Firm and Parties Must Regard the Date Set as Certain. To ensure the prompt disposition of civil cases, the California Rules of Court are clear. (a) Trial dates are firm To ensure the prompt disposition of civil cases, the dates assigned for a trial are firm. All parties and their counsel must regard the date set for trial as certain. Emphasis in original. California Rules of Court, Rule 3.1332(a). Continuances before or during trial in civil cases are disfavored. Lazarus v. Titmus, 64 Cal. App.4th 1242, 1249 (1998) (no abuse of discretion to deny appellant's motion for continuance). In fact, it is the trial court’s responsibility to: (fH) Commence trials on the date scheduled. (g) Adopt and utilize a firm, consistent policy against continuances, to the maximum extent possible and reasonable, in all stages of the litigation. California Government Code §68607(f)(g). Clearly, public policy favors prompt disposition of civil litigation. There is no policy in this state of indulgence or liberality in favor of parties seeking continuances. Rather, the granting of continuances is not favored and the party seeking a continuance must make a proper showing of good cause.” Foster v. Civil Service Com, 142 Cal. App. 3d 444, 448 (1983). Here, because Defendant UBER fails to affirmatively show good cause to continue trial, as detailed below, the exigencies of the case permit the trial to be promptly held on the firmly set trial date of May 22, 2019. 11 1 -6- OPPOSITION TO DEFENDANT UBER TECHNOLOGIES, INC.’s MOTION TO CONTINUE TRIAL AND ALL RELATED DATES no © oe 3 a N nn B W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 B. An Affirmative Showing of Good Cause Does Not Exist to Continue the Trial Date. California Rules of Court, Rule 3.1332(c), states the grounds for a trial continuance but cautions against the practice: Although continuances of trials are disfavored, each request for a continuance must be considered on its own merits. The court may grant a continuance only on an affirmative showing of good cause requiring the continuance. Circumstances that may indicate good cause include: (1) The unavailability of an essential lay or expert witness because of death, illness, or other excusable circumstances; (2) The unavailability of a party because of death, illness, or other excusable circumstances; (3) The unavailability of trial counsel because of death, illness, or other excusable circumstances; (4) The substitution of trial counsel, but only where there is an affirmative showing that the substitution is required in the interests of justice; (5) The addition of a new party if: (A) The new party has not had a reasonable opportunity to conduct discovery and prepare for trial; or (B) The other parties have not had a reasonable opportunity to conduct discovery and prepare for trial in regard to the new party’s involvement in the case; (6) A party’s excused inability to obtain essential testimony, documents, or other material evidence despite diligent efforts; or (7) A significant, unanticipated change in the status of the case as a result of which the case is not ready for trial. Emphasis added. California Rules of Court, Rule 3.1332(c). The word “may,” as quoted from Rule 3.1332(c), highlights the discretion the Court has by enabling it to refuse the grant of a continuance even if good cause exists and has affirmatively been shown. Id. In the subject case, however, none of the above “circumstances” are applicable. UBER, however, attempts to invoke number (5), “addition of a new party,” and number (7), “[a] significant, unanticipated change in the status of the case as a result of which the case is not ready for trial.” First, there are no new parties to the herein action. Rather two individuals, Alicia Evans and Diane Copeland, have filed wo separate Complaints against Defendants UBER and MAYER 7- OPPOSITION TO DEFENDANT UBER TECHNOLOGIES, INC.’s MOTION TO CONTINUE TRIAL AND ALL RELATED DATES O© oe 3 O N nn BA W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -- not against Plaintiff. Declaration of James A. Morris, §17 and Exhibit 4. These two individuals are not new parties to this case. Defendant UBER has misrepresented those facts and misapplied Rule 3.1332(c). Second, Defendant UBER feigns surprise that Evans and Copeland brought a third new party into the litigation — “a new corporate defendant.” Motion, 9:16-19. However, “Rasier, LLC,” sued by Evans and Copeland in the separate, new cases is actually just a subsidiary of Defendant UBER. Declaration of James. A. Morris, 918. See, e.g, https://www.uber.com/legal/data-requests/guidelines-for-third-party-data-requests/en/ (“Our registered agent will accept service only if the entity to whom the request is directed matches the name of the entity registered with the Secretary of State (e.g., “Uber Technologies, Inc.” or “Rasier, LLC.”). Further, Rasier, LLC is not a “party” to the herein action, despite Defendant UBER’s Motion representing otherwise. Motion 9:12-13 (*... THREE new parties were added and all parties deserve a reasonable opportunity to engage in discovery and prepare for trial.”) UBER’s allegations are flatly, erroneous. Third, there is no “unanticipated” change in the status of the case. The two individuals who filed separate Complaints against Defendant(s) were passengers in the vehicle driven by Defendant MAYER when he collided with Plaintiff, causing Plaintiff’s damages, on February 23, 2017. It was always known to Defendant UBER that its passengers may bring an action against it. In fact, in its moving papers, UBER admits it was aware of a controversy, as it had been “negotiating with counsel for Evans and Copeland for over a year” before the filing of their actions in December of 2018. Motion, 7:16-20. Clearly, these parties were known to UBER and further, significant information has thus, been exchanged between them. Plaintiff should not be prejudiced by delay of her trial, because UBER failed in pre-trial negotiations with other individuals -8- OPPOSITION TO DEFENDANT UBER TECHNOLOGIES, INC.’s MOTION TO CONTINUE TRIAL AND ALL RELATED DATES © © 3 O N Wn 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 unconnected to Plaintiff about whom UBER clearly has known since the occurrence of this incident two years ago. The “change” about which UBER speaks was, in no way, “unanticipated,” and in fact, should have been very highly anticipated. C. None of the Other Circumstance Factors the Court May Consider Justify a Continuance of Trial. California Rules of Court, Rule 3.1332(d), provides that, in ruling on a motion or application for continuance, the Court must consider all the facts and circumstances relevant to the determination. Defendant UBER raises several of these, none of which justify a continuance, as shown by the following: 1. Trial Date Defendant suggests that since the trial date is “less than two months from the hearing on this motion,” the Court should grant the herein Motion. Motion, 10:12-16. However, again, Evans and Copeland were passengers in the Defendants’ vehicle involved in the herein incident that occurred in February of 2017. Evans and Copeland filed their lawsuits against Defendant UBER in December of 2018. Plaintiff gave her Deposition in early January of 2019. It is entirely disingenuous to now pretend that UBER has less than two months to prepare for trial. In fact, Defendant learned of the two new lawsuits against it five months prior to the trial date of May 22, 2019 — and that was after negotiating with Evans and Copeland for an entire year. If Defendant has less than two months to prepare for trial, it is because Defendant dallied. 2. Prior Continuance & Length of Continuance This case has already had a previous continuance, as outlined above, which provided the parties more than enough time to obtain discovery and prepare for trial. In light of this prior continuance and due to the fact Defendant UBER clearly knew about other potential litigants for 9. OPPOSITION TO DEFENDANT UBER TECHNOLOGIES, INC.’s MOTION TO CONTINUE TRIAL AND ALL RELATED DATES © 0 9 a na BA A w D = N O N N N N N N N N D = m e e e ee e d e e 0 ~~ O N Un RE W N = O O N N N R e w N Y O two years, UBER’s request to continue the trial another 13 months is unreasonable. Doing so is disfavored by the policy of this State. 3. Alternate Means There is no liberality relative to granting continuances. All parties and witnesses have been preparing themselves and their schedules in anticipation for the trial date they rightly believe is firm. Declaration of James A. Morris, §19. Continuing the trial will prejudice Plaintiff and negatively affect witnesses’ schedules, because their preparation for trial and their scheduling for trial will be negatively affected by their uncertainty of the firmness of a set trial date, which the California Rules of Court aim to protect. Id. The rightful “alternate means” is for Defendant UBER to endeavor to satisfy the needs of Evans and Copeland, about whom it purports to care (“Evans and Copeland will be robbed of time already allotted for their discovery efforts and trial preparation” (Motion 11:11-12)) by fairly and fully adjudicating the claims of Evans and Copeland against it in the separate actions, which have nothing to do with Plaintiff. All concerns of the herein parties, as well as of non-parties (Evans, Copeland and Raiser) are able to be resolved without a continuance of the herein action, as those separate actions can proceed in due course and without the involvement of Plaintiff. 4. Prejudice Plaintiff should not be forced to endure prejudice caused by the delay of her trial, because UBER failed in pre-trial negotiations to resolve its disputes with other individuals unconnected to Plaintiff about whom UBER clearly has known since the occurrence of this incident two years ago. It is unfair to make Plaintiff suffer the consequences of UBER’S settlement negotiations in which Plaintiff played no role. Declaration of James A. Morris, 920. A continuance in this case would -10- OPPOSITION TO DEFENDANT UBER TECHNOLOGIES, INC.’s MOTION TO CONTINUE TRIAL AND ALL RELATED DATES SO OO ww NN O N wn Re W N N O N N N N N N N N m / s e m e e e e e s 0 uN O N hh RA W N = D O N N Y R E L ND prejudice the Plaintiff and her witnesses, because their preparation for trial and their scheduling for trial will be negatively affected by creating uncertainty of the firmness of a set trial date. Id. 5. Court’s Calendar This would be the second continuance whereby the Court will be made to adjust its schedule. No judicial efficiency results from forcing Plaintiff to participate in the litigation of other claims against the herein Defendants. 6. Interests of Justice Defendant UBER makes absolutely no argument with respect to how the interests of justice will be served by forcing Plaintiff to participate in cases in which she is not named and with which she has nothing to do. The interests of justice discourage the continuance because remaining discovery on both sides of current parties is minimal. In fact, all parties, as of the date of this hearing, will have a more than sufficient understanding of the strengths and weaknesses of their cases. Since the two other cases were filed in December of 2018, all parties have been operating under the statutorily-required presumption that the trial date is firmly set. Hence, the interests of justice are best served by denying Defendants’ Motion for Continuance -- brought nearly three months after the filing of the unrelated cases against UBER, which it now seeks to moor to Plaintiff's case against it. IV. CONCLUSION Defendant UBER’s reasons for continuing the trial for 13 months do not amount to good cause and therefore do not justify a continuance. The Court should use its discretion to avoid prejudice to the parties in this case and their counsel. The word “may,” as quoted from California Rules of Court, Rule 3.1332(c) highlights the discretion the Court has by enabling it to refuse the -11- OPPOSITION TO DEFENDANT UBER TECHNOLOGIES, INC.’s MOTION TO CONTINUE TRIAL AND ALL RELATED DATES OO ee 9 O Y Dn R W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 grant of a continuance even if good cause exists and has affirmatively been shown. However, since good cause has not been affirmatively shown in this instance, Plaintiff respectfully requests the Court exercise its discretion to deny a second continuance. DATED: March 13, 2019 Respectfully submitted, Ly James A. Morris, Esq. Shane E. Greenberg, Esq. MORRIS LAW FIRM Attorneys for Plaintiff KAILEE ZIMMERMAN aka KAILEE GRAVES -12- OPPOSITION TO DEFENDANT UBER TECHNOLOGIES, INC.”’s MOTION TO CONTINUE TRIAL AND ALL RELATED DATES © e o uN Oo wn RR W N N O N R D N N N N N e m e m s E e e e m e l e s e e o> 9 A Dh BRE L N = © Vv N S N nn R W ND R O PROOF OF SERVICE STATE OF CALIFORNIA, COUNTY OF LOS ANGELES I am employed in the County of Los Angeles, State of California. Iam over the age of 18 and not a party to the within action. My business address is 4111 Alameda Avenue, Suite 611, Burbank, CA 91505. On March 13, 2019, I served true copies of the following document(s) described as: PLAINTIFF'S OPPOSITION TO DEFENDANT UBER TECHNOLOGIES, INC.’s MOTION TO CONTINUE TRIAL AND ALL RELATED DATES; DECLARATION OF JAMES MORRIS, ESQ.; REQUEST FOR JUDICIAL NOTICE On the interested parties in this action as follows: SEE ATTACHED SERVICE LIST Service was accomplished as follows: [ 1] (BYREGULAR MAIL): By placing a true and correct copy of said document(s) enclosed in a sealed envelope with postage thereon fully prepaid, in the designated area for outgoing mail at Los Angeles, California, addressed as set forth below: [ 1] (BY PERSONAL DELIVERY): By having a messenger personally deliver a true and correct copy of said document(s) to the person and/or office of the person at the address(es) set forth below: X (BY OVERNIGHT DELIVERY): By placing a true and correct copy of said document(s), enclosed in a sealed envelope with delivery charges to be billed to sender and to be delivered by Federal Express, to the address(es) shown on the service list. [1] (BY ELECTRONIC MAIL): I transmitted a true and correct copy of said document(s) by electronic mail, and no error was reported. Said electronic mail transmission(s) were directed as indicated on the service list. [X] (STATE) I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on March 13, 2019, at Los Angelgs, California. " Dee Emeterio \ OPPOSITION TO DEFENDANT UBER TECHNOLOGIES, INC.’s MOTION TO CONTINUE TRIAL AND ALL RELATED DATES “13 © 0 NN o N nn BR W N = N O N N N N N N N N e =m e e e e = = ® 9 A&A hh A L N = © V V ® N w RA W N = O SERVICE LIST Beth L. Golub Ashley E. Baldassi TYSON & MENDES, LLP 5661 La Jolla Boulevard La Jolla, CA 92037 Telephone: 858/459-4400 Attorneys for Defendant UBER TECHNOLOGIES, INC. George J. Hernandez, Jr. Archin Chin ERICKSEN ARBUTHNOT 835 Wilshire Boulevard, Suite 500 Los Angeles, CA 90017 Telephone: 213/489-4411 Attorneys for Defendant DAVID MAYER -14- OPPOSITION TO DEFENDANT UBER TECHNOLOGIES, INC.’s MOTION TO CONTINUE TRIAL AND ALL RELATED DATES