Reply In Support of Defendants Motion For Sanctions

Reply

Cal. Super. - 1st Dist.August 16, 2016

o o Dy 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ARENT. FOX LLP ATTORNEYS AT Law. LOS ANGELES ELLIOTT M. KROLL (SBN 077074) JENNIFER C. TERRY (SBN 200541) KIRSTEN A. HART (SBN 258433) ARENT FOX LLP Eh, yy ELECTRONICALLY 555 West Fifth Street, 48th Floor FILED Los Angeles, CA 90013- 1 065 ) Superior Court of California, Telephone: 213.629.7400 ; County of San Francisco Facsimile: 213.629.7401 Email: elliott.kroll@arentfox.com g2/16,2018 jennifer.terry@arentfox.com BY VANESER WU kirsten.hart@arentfox.com Deputy Clerk Attorneys for Defendants GENERALI US BRANCH (erroneously sued as “GENERALI BENEFITS, INC.”) and MIKE TIMMER SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN FRANCISCO ELIZABETH CARRANZA, CASE NO. CGC 16-553720 Plaintiff, DISCOVERY Vv. REPLY IN SUPPORT OF DEFENDANTS' MOTION FOR SANCTIONS GENERALI BENEFITS, INC., a California corporation; MIKE TIMMER, Date: February 26, 2018 an individual, and DOES 1-100, inclusive, Time: 9:00 a.m. Dept: 302 Defendants. Judge: John K. Stewart Action Filed: =~ August 16, 2016 Trial Date: August 21, 2017 LL INTRODUCTION Plaintiff's notes—which she concedes she created for herself and never shared with counsel—were not a privileged communication. Thus, Plaintiff cannot exculpate her intentional, wrongful destruction of evidence under the guise that she would not have produced the notes anyway. Rather, Plaintiff should be sanctioned for her intentional destruction of critical evidence, and her counsel should be sanctioned for his failure to ensure the preservation of documentary evidence. REPLY IN SUPPORT OF DEFENDANTS' MOTION FOR SANCTIONS $ 0 0 DN ~ O N 10 11 12 13 14 13 16 17 18 19 20 21 22 oa 24 23 26 27 28 ARENT FOX LLP ATTORNEYS AT LAW Los ANGELES. TL DEFENDANTS ARE ENTITLE TO SANCTIONS A. Defendants are entitled to sanctions. Poth As Defendants established in their moving papers, Plaintiff had an obligation to preserve evidence relevant to this suit. Plaintiff s willful failure to do so should at the very least subject her to monetary sanctions. Defendants are also entitled to a negative inference at trial, as Plaintiff’s destroyed notes could have contained crucial exculpatory evidence. (See CACI No. 204.) B. Plaintiff’s Opposition fails to excuse her willful destruction of her notes. Nothing in Plaintiff’s Opposition excuses her willful misconduct. 1. Plaintiff’s timeliness argument is not persuasive. Plaintiff's timeliness argument is not persuasive. The last day to mail-serve a motion was January 25, 2018, and the last day for a motion to be heard is February 26, 2018. Defendants met both deadlines by filing the instant motion on January 24, 2018, and setting it for hearing on February 26. Additionally, Defendants do not dispute Plaintiff’s claim that they stipulated to key the discovery deadline to the original trial date, January 22, 2018. But that is separate from the motion filing/hearing cutoff, with which Defendants complied. Moreover, Plaintiff recently sought ex parte relief to short time for hearing on two discovery motions, and asked the Court to set them for hearing on February 26, the same day as this motion will be heard. Plaintiff's conduct suggests that she, too, is aware that February 26 is the last day to hear motions. Thus, Plaintiff should be estopped from arguing that any discovery motions heard on February 26 are time-barred. 2; Plaintiff’s notes were not privileged. Plaintiff’s newfound claim that her destroyed notes were privileged is meritless. The attorney-client privilege confers on the client fhe right to “refuse to disclose, and to prevent another from disclosing, a confidential communication between client and lawyer.” (Evid. Code, § 954.) But Plaintiff averred in writing that she made the notes for herself (“I made the notes for myself,” Declaration of Elizabeth Carranza ISO Opp. to Mot. for Sanctions, 9 7). Further, - 5 “_ 2 a E - REPLY IN SUPPORT OF DEFENDANTS’ MOTION FOR SANCTIONS ~~ } T N . n h 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ARENT FOX LLP ATTORNEYS AT Law LOS ANGELES Plaintiff confirmed that she never communicated them to her attorney: “[h]ad I kept the notes, I would have delivered them to my ditorhey d at 7.) She also testified to taking the notes well before she commenced the litigation, and even before Generali’s purported conduct about which she complains occurred. (Id. at 4, “So oe you say you spoke with Ava on July 6%.) But even if there were a ugstion as to whether Plaintiff's notes were protected by the attorney- client privilege, Plaintiff does not git to decide the scope and application of the privilege. Rather, if Plaintiff had not destroyed the notes, a judge could have considered in camera whether the privilege applied, or whether Defendants’ overriding interest merited their production. Instead, Plaintiff unilaterally destroyed the notes, ensuring Defendants never had the opportunity to review the evidence and potentially use it against her. Even if Plaintiff’s self-serving privilege argument were to be considered, Plaintiff and her counsel should still be subject to sanctions. To the extent Plaintiff's counsel represented Plaintiff in anticipation of this litigation at the time Plaintiff took the notes, then Plaintiff’s counsel should have issued a litigation hold letter with which Plaintiff should have complied. (Cedars-Sinai Med. Ctr. v. Superior Court, 18 Cal 4th 1, 12-13.) Of course, neither occurred. And that conduct, too, warrants sanctions. Cs Plaintiff is not entitled to sanctions. Sanctions for failure to meet and confer are not warranted. Indeed, Code of Civil Procedure section 2023.020 states that courts shall impose sanctions including reasonable expenses and attorney’s fees “incurred . . . as a result of [any party or attorney’s failure to meet and confer as required].” Here, Defendants’ counsel repeatedly called Plaintiff’s counsel to discuss ongoing discovery issues to no avail. Indeed, when Defense counsel most recently noted his disappointment that Plaintiff’s counsel refused to call him back, and instead elected to file two failed ex parte applications, Plaintiff Ss counsel merely responded that it was unclear what defense counsel intended to discuss over the phone and suggested counsel email him. Plaintiff's counsel’s proven attitude is such that Defendants would have had to file this motion regardless. Thus, the lack of meet and — on this specific requested relief did not result in Plaintiff incurring fees. sae Boy SC REPLY IN SUPPORT OF DEFENDANT S'MOTION FOR SANCTIONS o e 1 Oy 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ARENT Fox LLP ATTORNEYS AT Law Los ANGELES IL CONCLUSION Defendants are entitled to sanctions and a negative inference at trial for Plaintiff’s willful destruction of notes relevant to the purported foundation for this case. Plaintiff’s failed procedural argument does not excuse her conduct. Moreover, Plaintiff's latent privilege claim not only contradicts her sworn testimony on the issue, but also, confirms Plaintiff's counsel’s liability for failing to impose a litigation hold. And, tellingly, Plaintiffs Opposition does not address the substantive unfairness of Plaintiff's conduct. Thus, Defendants respectfully request that this Court grant their motion in full. Dated: February 16, 2018 ARENT FOX LLP By: / on Ted— ELLIOTT M.KROLL™ JENNIFER C. TERRY KIRSTEN A. HART Attorneys for Defendants GENERALI US BRANCH (ERRONEOUSLY SUED AS “GENERALI BENEFITS, INC.”) AND MIKE TIMMER sl REPLY IN SUPPORT OF DEFENDANTS' MOTION FOR SANCTIONS ~ O 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ARENT FOX LLP ATTORNEYS AT LAW LO% ANGELES Elizabeth Carranza v. Generali Benefits, Inc. and Mike Timmer San Francisco Superior Court ~ Case No. CGC 16-553720 PROOF OF SERVICE I am a citizen of the United States. My business address is Arent Fox LLP, 555 West Fifth Street, 48th Floor, Los Angeles, California 90013-1065. My email address is Katryn.smith@arentfox.com. I am employed in the County of Los Angeles where this service occurs. I am over the age of 18 years, and not a party to the within cause. On the date set forth below, according to ordinary business practice, I served the foregoing document(s) described as: REPLY IN SUPPORT OF DEFENDANTS' MOTION FOR SANCTIONS ] (BY E-MAIL) On this date, I personally transmitted the foregoing document(s) via electronic mail to the e-mail address(es) of the person(s) on the attached service list. [x] (BY ELECTRONIC SERVICE) On this date, I caused the above document(s) to be served via electronic means via [FileAndServeXpress] on the person(s) listed on the attached service list. ] (BY MAIL) [am readily familiar with my employer's business practice for collection and processing of correspondence for mailing with the U.S. Postal Service, and that practice is that correspondence is deposited with the U.S. Postal Service the same day as the day of collection in the ordinary course of business. On this date, I placed the document(s) in envelopes addressed to the person(s) on the attached service list and sealed and placed the envelopes for collection and mailing following ordinary business practices. [7] (BY PERSONAL SERVICE) On this date, I caused to be delivered by hand envelope(s) containing the document(s) to the persons(s) on the attached service list. (BY OVERNIGHT DELIVERY) On this date, I placed the documents in envelope(s) addressed to the person(s) on the attached service list, and caused those envelopes to be delivered to an overnight delivery carrier, with delivery fees provided for, for next-business-day delivery to whom it is to be served. (State) I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. - Executed on February 16, 2018 at Los Angeles, California. PROOF OF SERVICE AFDOCS/13869359.1 ~~ O Y C W » R W o N oC 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ARENT FOX LLP ATTORNEYS AT LAW LOS ANGELES Elizabeth Carranza v. Generali Benefits, Inc. and Mike Timmer San Francisco Superior Court ~~ Case No. CGC 16-553720 SERVICE LIST Daniel Feder, Esq. (SBN 130867) Attorneys for Plaintiff Law Offices of Daniel Feder ~~ Elizabeth Carranza 332 Pine Street, Suite 700 San Francisco, CA 94104 Email: danfeder@pacbell.net Phone: (415) 391-9476 Fax: (415) 391-9432 PROOF -OF SERVICE AFDOCS/13869359.1