Opposition To Motion To Quash Service

Motion

Cal. Super. - 2nd Dist.August 31, 2018

Electronically FILED by Superior Court of California, County of Los Angeles on 06/25/2019 10:34 AM Sherri R. Carter, Executive Officer/Clerk of Court, by C. Aquino,Deputy Clerk DONALD E. KARPEL, ESQ. (SBN 61678) LAW OFFICES OF ZELNER & KARPEL 16633 Ventura Boulevard, Suite 735 Encino, California 91436 Telephone: (310) 273-8444 Facsimile: (323) 720-8852 w N N fi n 5 6 || Attorneys for Plaintiff . MARTHA ROMERO 8 SUPERIOR COURT FOR THE STATE OF CALIFORNIA 9 FOR THE COUNTY OF LOS ANGELES- CENTRAL DISTRICT 10 SPRING STREET COURTHOUSE 11 12 | MARTHA ROMERO, CASE NO.: BC71989%4 ) [Assigned to Georgina Torres Rizk, Judge, LG Plaintiff, Dept. 2] 14 VS. OPPOSITION TO MOTION TO QUASH 15 SERVICE; DECLARATION OF DONALD E. CITY OF LOS ANGELES; KARPEL 16 || INDONESIAN CONSULATE 17 GENERAL, a business entity form Date: Jul 10, 2019 unknown; ITPC LOS ANGELES - Time: 1:30 pm 18 | MINISTRY OF TRADE, REPUBLIC OF | Dept.: 2 19 | INDONESIA, a business entity form 50 unknown; KJRI LOS ANGELES, a business entity form unknown; and DOES | TRIAL: March 2, 2020 21 || 1 through 100, Inclusive, 22 DATE FILED: August 31, 2018 Defendants. 23 24 |TO THE COURT, ALL PARTIES AND ATTORNEYS OF RECORD: 25 Plaintiff MARTHA ROMERO hereby presents her limited opposition to the motion of 26 defendants ITPC LOS ANGELES, MINISTRY OF TRADE - MINISTRY OF TRADE, 27 [REPUBLIC OF INDONESIA and KJRI LOS ANGELES, REPUBLIC OF INDONESIA 28 ||(“Indonesian entities) to quash service (and apparently for sanctions). ‘OPPOSITION TO MOTION TO QUASH SERVICE Ww o J o Y U 1 o s x W N N O O N ND N N N N N R R E E E e E e e oO a oh E w N R E Oo Ww m o e s w N E O Plaintiff Requests that the Court Permit Time to Perfect Service Plaintiff does not oppose the Court setting aside the default, but requests that she be permitted to perfect service pursuant to the Foreign States Immunity Act(“FSIA”) under 28 U.S.C. § 1608(a)(3). As the Motion to Quash makes clear, the moving defendant Indonesian entities have received actual notice of the action through personal service of the complaint package at their premises. The only action necessary to perfect service is mail service- return receipt requested- by and through the Clerk of this Court, either to the head of Indonesia’s ministry of foreign affairs, the Honorable Ms. Retno L.P. Marsudi (Pancasila Building, JI. Pejambon No. 6, Jakarta 10410, Indonesia) or by diplomatic channels through the Secretary of State. Monetary Sanctions Would Be Improper Monetary sanctions cannot be granted here. First, there is no citation to any statute or rule supporting sanctions. No statute permits sanctions for incomplete service by the process server, particularly under the FSIA, or an erroneous good-faith request for entry of default. Defendants’ motion cites no statute, California Rule of Court or rule which was violated, as is required when seeking sanctions. See, e.g. California Rule of Court, Rule 2.30 requiring that a motion for sanctions must set forth the rule which has been violated. The courts have no inherent power to impose monetary sanctions against parties or their counsel. Bauguess v. Paine (1978) 22 Cal.3d 626, 638-639; Andrews v. Sup.Ct. (Thomas) (2000) 82 Cal. App.4th 779, 782; Clark v. Optical Coating Lab., Inc. (2008) 165 Cal.App.4th 150, 165-166-no inherent power to award attorney fees as sanctions for violation of in limine order; Interstate Specialty Marketing, Inc. v. ICRA Sapphire, Inc. (2013) 217 Cal. App.4th 708, 717-no “common law” authority to sanction plaintiff for errors in verified complaint. Further, no facts support imposition of monetary sanctions. Plaintiff's counsel retained professional process servers through a legal service to perform service on the Indonesian Consulate on the [erroneous] assumption that they would effect service properly. ‘OPPOSITION TO MOTION TO QUASH SERVICE 10 1-06 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 A request for default was filed and granted when there was no response to the service. After default was entered, defense counsel sent a letter asserting that service was not performed pursuant to the FSIA. However that letter did not identify how service by the process server had deviated from the FSIA or why service was improper. Plaintiff’s counsel offered to stipulate to set aside the default and re-serve the complaint package pursuant to the FSIA after receiving the present motion, which actually described defendants’ reasoning for the assertion that service was not in compliance with the FSIA. Defendants refused plaintiff's proposed stipulation to set aside the default and re- serve the complaint package. Instead, defendants insisted upon payment of attorney’s fees purportedly incurred in preparing the motion to quash. [This is a situation which could actually subject defendants to sanctions for causing an “unnecessary hearing.” See Edmon and Karnow, California Practice Guide: Civil Procedure Before Trial (Rutter Group 2019) 9:1038- where counsel for the moving party insists that the motion be heard notwithstanding opposing counsel's offer to stipulate that the motion be granted, the court may find that counsel's conduct is not in “good faith” and has caused “unnecessary delay.” Ellis v. Roshei Corp. (1983) 143 Cal.App.3d 642, 649; Lavine v. Hospital of the Good Samaritan(1985) 169 Cal. App.3d 1019, 1027.] Plaintiff requests that the Court set aside the default, but permit the clerk to perfect service of the complaint package on Indonesian entities, and to deny the monetary sanctions requested by moving parties. DATED: June 24, 2019 LAW OFFICES OF ZELNER & KARPEL By /s/ Donald E. Rap] DONALD E. L Attorneys for Plaintiff MARTHA ROMERO ‘OPPOSITION TO MOTION TO QUASH SERVICE = Ww N D Ow © ~~ o y WU 10 10: 12 13 14 15 16 157 18 19 20 21 22 23 24 25 26 27 28 DECLARATION OF DONALD E. KARPEL I, Donald E. Karpel, declare as follows: 1 I am an attorney at law duly licensed to practice before all courts of the State of California. Iam a principal of the law firm of Zelner & Karpel, attorneys of record for plaintiff MARTHA ROMERO herein. = If called as a witness, I would and could competently testify from my own personal knowledge as to the matters set forth below. As to those matters stated upon information and belief, I believe them to be true. 3. I am informed and believe that: Plaintiff was injured when she tripped over a raised section of the sidewalk or bronze plaque (which appeared to have been installed by or for various Indonesian entities) on the sidewalk in front of the Indonesian Consulate in Los Angeles. 4. I forwarded a complaint package to be served on the Indonesian entities. That complaint package was defective as it did not contain a notice of action or translation of the complaint in Indonesian, and we stipulated with counsel for the Indonesian entities, Gene Shioda, to set aside the default which was entered and to serve the complaint in compliance with the Foreign Sovereign Immunities Act (FSIA). 5. Mr. Shioda refused to accept service for the Indonesian entities. I therefore caused another complaint package, one compliant with the FSIA, to be sent to our process server, ABC Legal, for service on the Indonesian consulate. 6. I am informed and believe: ABC Legal had served an employee or agent authorized to accept service at the Indonesian Consulate, according to the proof of service. ABC Legal apparently did not comply with the FSIA in serving the Indonesian government entities at the Indonesian consulate. I was unaware that service was not completed pursuant to the FSIA. The court entered default upon request after the time to respond had expired and there had been no response by the Indonesian entities. I! 1 ‘OPPOSITION TO MOTION TO QUASH SERVICE o n o x WwW N E 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Pe Only after default was entered- again- did I hear from Indonesian entities’ counsel Mr. Shioda asserting that service was not conducted pursuant to the FSIA. However defense counsel did not identify how service by the process server had deviated from the FSIA or why service was improper. 8. Upon receipt of the present motion to set aside default and quash service, | forwarded the motion and correspondence to my associate, attorney William Yee, and asked that he stipulate on plaintiff's behalf to set aside the default and advise Mr. Shioda that plaintiff would complete service pursuant to the FSIA. 9. I am informed and believe that: Mr. Shioda refused to take the present motion off calendar without payment of reimbursement/sanctions, despite the absence of any statutory basis for sanctions for the failure to perfect service and erroneous default and plaintiff’s express willingness to stipulate to set aside the default and perfect service pursuant to the FSIA. I declare under penalty of perjury, under the laws of the State of California, that the foregoing is true and correct. Executed this 24™ day of June, 2019, at Encino, California. /s/ Donald E. Karpel Donald E. Karpel ‘OPPOSITION TO MOTION TO QUASH SERVICE Be Ww = wo oo 1 o y On 10 LI, 12 13 14 15 16 LH 18 19 20 21 22 23 24 25 26 20 28 PROOF OF SERVICE STATE OF CALIFORNIA, COUNTY OF LOS ANGELES 1 am employed in Los Angeles County, California. Iam over the age of 18 years and not a party to the within action; my business address is 16633 Ventura Boulevard, Suite 735, Encino, California 91436. On June 25, 2019, I served the foregoing document described as OPPOSITION TO MOTION TO QUASH SERVICE; DECLARATION OF DONALD E. KARPEL on the ietestod parties in this action by placing a true copy thereof in a sealed envelope addressed as ollows: Ronald S. Whitaker, Esq. lod Qy fliomey 600 City Hall East, 200 North Main Street Los Angeles, California 90012 Tel: (213) 978-7071 Fax: (213) 978-8789 Email: ronald. whitaker@lacity.org Attorneys for Defendant CITY OF LOS ANGELES Gene H. Shioda, Esq. 5901 W Century Blvd # 750 Los Angeles, CA 90045 Tel: (562) 432-1122 Email: lawofficeofghs@yahoo.com Attorneys for Defendants, ITPC LOS ANGELES - MINISTRY OF TRADE, REPUBLIC OF INDONESIA, and KJRI LOS ANGELES, REPUBLIC OF INDONESIA ( ) BY MAIL. In accordance with the regular mail collection and processing practices of this business office with which am familiar, by means of which mail is deposited with the United States Postal Service at Encino, California that same date in the ordinary course of business, I placed such sealed envelopes addressed as stated above, with postage thereon fully prepaid, for collection and mailing on this same date following ordinary business practices. ) BY EMAIL. I caused such document to be delivered via EMAIL to the addresses at the email address set forth above. (State) I declare under penalty of perjury under the laws of the State of California that the above is true and correct. Executed on June 25, 2019, at Encino, California. Sandi Coapman /s/ Sandi Coapman