Reply_brief_re_defendants_motion_to_transfer_caseReplyCal. Super. - 1st Dist.June 20, 2017~~ O N nn Bs No 10 11 1 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Maurice Wainer (SBN 121678) ELECTRONICALLY SNIPPER WAINER & MARKOFF FILED 232 North Canon Drive Superior Court of California, Beverly Hills, California 90210-5302 County of San Francisco Telephone: (310) 550-5770 11/28/2017 Clerk of the Court BY:GARY FELICIANO Deputy Clerk Email: mrwainer@swmfirm.com Attorneys for Defendants DRLY, INC., a corporation, doing business as SUSIE'S DEALS; TOP TOP CLOTHING INC., a corporation, doing business as SUSIE'S DEALS; ONLY $1 $2 $3 FASHION, a corporation; and GATEWAY STAFFING SERVICES, INC., a corporation SUPERIOR COURT OF CALIFORNIA — COUNTY OF SAN FRANCISCO UNLIMITED CIVIL NORTHERN CALIFORNIA COLLECTION SERVICE, INC., CASE NO. CGC-17-559644 REPLY BRIEF RE: DEFENDANTS’ MOTION TO TRANSFER CASE AND FOR AN AWARD OF ATTORNEY'S FEES AND COSTS IN THE SUM OF $4,719.00 IN FAVOR OF DEFENDANTS AND AGAINST STEVEN D. CRIBB AND ANDRE J. LeLIEVRE [CCP §§ 396h(b)] Plaintiff, Vs. DRLY, INC., a corporation, doing business as SUSIE’S DEALS; TOP TOP CLOTHING INC., a corporation, doing business as SUSIE'S DEALS; ONLY $1 $2 $3 FASHION, a corporation; GATEWAY STAFFING SERVICES, INC., a corporation; DOE ONE [Filed concurrently with Evidentiary Objections to Declaration of Brad through DOE TWENTY, Thornberry] Defendants. DATE: December 11, 2017 TIME: 9:30 AM DEPT: 302 RES #: 010251211-05 N r ” “s ae ” as se t” s r r ’ ss s sa ’ s r ? ” “s ca “s rt ” “s er as e” “ as se s “u se ?” s s ss s? ’ “s er “r ie ?” “ su se “s us ” “ s e r “s ie Action filed: 06/20/2017 Defendants DRLY, INC., a corporation, doing business as SUSIE’S DEALS; TOP TOP CLOTHING INC., a corporation, doing business as SUSIE’S DEALS; ONLY $1 $2 $3 FASHION, a corporation; and GATEWAY STAFFING SERVICES, INC., a corporation (collectively, “Defendants™), herein submit their Repy Brief in response to the Opposition of Plaintiff NORTHERN CALIFORNIA COLLECTION SERVICE, INC. (“NCCS” or “Plaintiff”) to Defendants” Motion to Transfer Case, and for Sanctions, as follows: 1 REPLY BRIEF RE: DEFENDANTS’ MOTION TO TRANSFER ~~ O N nn Bs No 10 11 1 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MEMORANDUM OF POINTS AND AUTHORITIES 1. THE OPPOSITION IS DISINGENUOUS The Opposition to the Motion is disingenuous because nowhere in the Opposition does the Plaintiff address the glaring contradiction between the positions the Plaintiff took in pleadings in the Prior Action that the place for performance (payment) was in Los Angeles and that the operative facts occurred in Los Angeles and Plaintiff’s position in this recently-filed action that performance was required in San Francisco. Plaintiff is not permitted to take inconsistent positions as briefed in the moving papers. Plaintiff indeed makes zero effort to address why Plaintiff is not estopped from taking an inconsistent assertion of the truth in this San Francisco case from the assertion of the truth it took in the Los Angeles casc regarding the place of performance. Plaintiff just ignores this contradiction. This Court should not close its eyes to the Plaintiff acting at variance in this case with its former claims — especially when Plaintiff is forum shopping. Plaintiff cannot blow hot and cold. At a minimum, Plaintiff must explain these contradictions — not simply ignore them in the Opposition to the Motion to Transfer. Judicial estoppel prevents a party from asserting a position in a legal proceeding that is contrary to a position previously taken in the same or some earlier proceeding. Jackson v. County of Los Angeles, 60 Cal. App. 4th 171, 181 (1997). The doctrine's dual goals are: (1) to maintain the integrity of the judicial system, and (2) to protect parties from opponents’ unfair strategies. People v. Castillo, 49 Cal. 4th 145, 155 (2010). Procedurally, litigants — including the Plaintiff — are precluded from “blowing hot and cold” on their own factual allegations. Thus, the Plaintiff cannot dispute its factual allegations previously alleged in the Los Angeles Action. 2, DECLARATION OF BRAD THORNBERRY In a desperate effort to demonstrate the Defendants allegedly agreed to make payment in San Francisco, Plaintiff has submitted a declaration signed by Mr. Thornberry in Solano County (not San Francisco) who testifies that he is a Senior Workers” Compensation Insurance Representative. It is not enough for the declarant simply to state he has personal knowledge of the facts referred to therein. See Osmond v. EWAP, Inc., 153 Cal. App. 3d 842, 851 (1984); Bowden v. Robinson, 67 Cal.App.3d 705, 719-20 (1977); Snider v. Snider, 200 Cal. App. 2d 741, 2 REPLY BRIEF RE: DEFENDANTS’ MOTION TO TRANSFER ~~ O N nn Bs No 10 11 1 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 754 (1962). Mr. Thornberry’s declaration notably does not contain facts showing the declarant’s personal connection with the matters stated in his declaration. But more importantly absent from the Thornberry declaration are any facts by the terms of the insurance policy that payment was required to made in San Francisco. In a thinly-disguised effort to support the unfounded and unsupported assertion that payment was required in San Francisco, Mr. Thorberry attaches to his Declaration purported policy declarations (Exhibit 1). The policy declarations are notable because they do not state where payment is to be made. That the policy may have been countersigned and issued in San Francisco dees not mean that payment was to be made in San Francisco. Exhibit 2 to the Declaration of Brad Thornberry is a corporate officers and directors exclusion. There is nothing in the corporate officers and directors exclusion which identifies the place of payment in San Francisco. Had the insurance company intended that payment must be made in San Francisco, certainly the insurance company could have been specific in the endorsement agreement (Exhibit 2) or the policy declarations (which is also part of Exhibit 2), but again there is nothing in the documents which dictates where payment is to be made. Exhibit 3 to the Declaration of Brad Thornberry is an experience modification endorsement and an interim billing rate modification. Yet again neither of these documents which specify the place of payment. Exhibit 4 consists of checks made payable to State Fund, but the checks alone do not establish that payment was to be made in San Francisco. Exhibit § is a notice of cancellation. Again, the notice of cancellation does specify where payment is to be made. At best the notice of cancellation states that the insured “may” mail payments to State Compensation Fund in San Francisco. The notice of cancellation does not require that payments “must” or “shall” be made in San Francisco. Likewise, Exhibit 6 is another notice of cancellation with nearly identical language that is also silent on the place where payment is to be made. Exhibit 7 consists of invoices, but those invoices are incomplete because the important payment instructions on the obverse side have been omitted by Mr. Thornberry, so the invoices are of no probative value on the place required for payment. Exhibit 8 is yet another notice of cancellation and again this document does not specify that payment is to be made only by 3 REPLY BRIEF RE: DEFENDANTS’ MOTION TO TRANSFER ~~ O N nn Bs No 10 11 1 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 delivery of payment to San Francisco. In fact, Exhibit § presupposes that payments may be made online at a place other than San Francisco. Likewise, Exhibit 9 is a final notice of cancellation and again also permits payments either to be made online or to State Compensation Fund in San Francisco. There is no mandatory clause anywhere requiring any performance in San Francisco exclusively. Plaintiff would have this Court believe that the place of performance is the site of payment but the Plaintiff has entirely failed to demonstrate by documentary evidence or otherwise that any of the Defendants contractually stipulated to that effect. The Supreme Court states in Caffrey v. Tilton, 38 Cal.2d 371, p. 374 (1952), “In Armstrong v. Smith, 49 Cal. App.2d 528 [(1942)], the contention that venue may be determined by an implied agreement as to the place of performance of a contract was expressly rejected and an order denying a motion for a change of venue to the county of the defendant’s residence was reversed. The court stated at page 536 in reference to the portion of section 395 here involved: ‘If the parties have only impliedly agreed to a place of performance when the statute says that they should have specially agreed before the remedy sought may be obtained, no redress may be had.” It was noted that a ‘special’ contract is one whose provisions are express and not dependent on implication.” It is legally noteworthy that there is ne place of performance specified in any of the exhibits attached to the Thornberry declaration. If there is ambiguity in the documents they must be construed against the drafter (here the Plaintiff) because contractual ambiguities are always to be construed against the party responsible for them. See, Hunt v United Bank & Trust Co., 210 Cal. 108 (1930), opining that “one who prepares the contract can by exactness of expression more readily prevent mistakes in meaning than one with whom he is dealing, and doubts arising from ambiguity of language are, therefore, resolved in favor of latter. There is no dispute that the insurance policy and endorsements were all drafted by Plaintiff. Because the law favors the right of trial at the defendant’s residence, the complaint and the purported supporting evidence will be strictly construed against a plaintiff seeking to lay the venue elsewhere.” Gallin v Superior Court, 230 Cal. App. 3d 541, 544 (1991); see also Kaluzok v Brisson, 27 Cal. 2d 760, 763 (1946). “The right of a defendant to have an action brought against him tried in the county of his residence is 4 REPLY BRIEF RE: DEFENDANTS’ MOTION TO TRANSFER OO 00 N N S N Un hk W N N N N N N N N N N m e m e m e m p m pe p a pe 00 NN O N un BEE W L W N E OC C N N O N E W D R Oo an ancient and valuable right, safeguarded by statute and supported by a long line of decisions The right of a plaintiff to have an action tried in a county other than that of the defendant's residence is exceptional.” Dated: November 28, 2017 By: Respectfully submitted, 4 AT MARKOFF SNIPPER, W Maurice Wainer, Esq. Attorneys for Defendants DRLY, INC., a corporation, doing business as SUSIE’S DEALS; TOP TOP CLOTHING INC., a corporation, doing business as SUSIE'S DEALS; ONLY $1 $2 $3 FASHION, a corporation; and GATEWAY STAFFING SERVICES, INC., a corporation 5 REPLY BRIEF RE: DEFENDANTS’ MOTION TO TRANSFER N O N N N N N N N O N o e m mm mm p m em p m p m p p ® NN a BE W N =, © WV N o u n B R A W N = O [ — © 00 ~N O60 Lt ~~ W O N PROOF OF SERVICE I am employed in the County of Los Angeles, State of California. I am over the age of 18 years and not a party to the within action; my business address is 232 North Canon Drive, Beverly Hills, CA 90210. On November 28, 2017, I served the foregoing document described as: REPLY BRIEF RE: DEFENDANTS’ MOTION TO TRANSFER CASE AND FOR AN AWARD OF ATTORNEY’S FEES AND COSTS IN THE SUM OF $4,719.00 IN FAVOR OF DEFENDANTS AND AGAINST STEVEN D. CRIBB AND ANDRE J. LeLIEVRE [CCP §§ 396h(b)] on the interested parties in this action as listed below: Steven D. Cribb, Esq. Andre J. LeLievre, Esq. 700 Leisure Lane Sacramento, CA 95815 Email: lelievreaj@aol.com XX VIA U.S. GROUND MAIL I am “readily familiar” with the firm’s practice of collection and processing documents for mailing. Under that practice it is deposited with U.S. Postal Service on that same day with postage thereon, fully prepaid, at Beverly Hills, 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 VIA ELECTRONIC MAIL (E-MAIL) I also served a courtesy copy of the foregoing document by electronic mail to the addressee’s e-mail address, as set forth above. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on November 28, 2017, at Beverly Hills, California. Dawiel Harris 6 REPLY BRIEF RE: DEFENDANTS’ MOTION TO TRANSFER
