notice to state court and all parties of removal of civil action to fe

Cal. Super. - 1st Dist.April 3, 2020

DB2/ 38009904.1 NOTICE TO STATE COURT AND ALL PARTIES OF REMOVAL OF CIVIL ACTION TO FEDERAL COURT BY DEFENDANT BMW OF NORTH AMERICA, LLC 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MORGAN, LEWIS & BOCKIUS LLP ATTORNEYS AT LAW SAN FRANCISCO MORGAN, LEWIS & BOCKIUS LLP Molly Moriarty Lane, Bar No. 149206 molly.lane@morganlewis.com Garrick Y. Chan, Bar No. 315739 garrick.chan@morganlewis.com One Market Spear Street Tower San Francisco, CA 94105-1596 Tel: +1.415.442.1000 Fax: +1.415.442.1001 Attorneys for Defendant BMW of North America, LLC SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SAN FRANCISCO MARIA LACAYO, Plaintiff, vs. BMW OF NORTH AMERICA, LLC, et al., Defendants. Case No. CGC-19-580869 [Removed to U.S. District Court, Northern District of California - San Francisco Division] NOTICE TO STATE COURT AND ALL PARTIES OF REMOVAL OF CIVIL ACTION TO FEDERAL COURT BY DEFENDANT BMW OF NORTH AMERICA, LLC Date Filed: November 18, 2019 Date Served: November 22, 2019 Notice of Removal Filed: December 23, 2019 ELECTRONICALLY F I L E D Superior Court of California, County of San Francisco 12/23/2019 Clerk of the Court BY: JUDITH NUNEZ Deputy Clerk DB2/ 38009904.1 1 NOTICE TO STATE COURT AND ALL PARTIES OF REMOVAL OF CIVIL ACTION TO FEDERAL COURT BY DEFENDANT BMW OF NORTH AMERICA, LLC 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MORGAN, LEWIS & BOCKIUS LLP ATTORNEYS AT LAW SAN FRANCISCO TO THE CLERK OF THE SAN FRANCISCO SUPERIOR COURT, ALL PARTIES AND THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that on December 23, 2019, Defendant BMW of North America, LLC (“Defendant”), filed a Notice of Removal of Civil Action in the United States District Court for the Northern District of California, San Francisco Division, as Case No. 3:19-cv-08369. A true and correct copy of said Notice of Removal (including all state court pleadings and orders filed with Defendant’s Notice of Removal as Exhibit A therein), is attached hereto as Exhibit 1 and incorporated herein by reference and is served and filed herewith. A true and correct copy of the Civil Cover Sheet that was filed concurrently with said Notice of Removal is attached hereto as Exhibit 2 and incorporated herein by reference and is served and filed herewith. A true and correct copy of Defendant’s Corporate Disclosure Statement and Certification of Interested Parties filed concurrently with said Notice of Removal is attached hereto as Exhibit 3 and incorporated herein by reference and is served and filed herewith. A true and correct copy of the Notice of Appearance of Counsel for Defendant filed concurrently with said Notice of Removal is attached hereto as Exhibit 4 and incorporated herein by reference and is served and filed herewith. A true and correct copy of the Declaration of Garrick Y. Chan filed in support of said Notice of Removal and accompanying exhibits is attached hereto as Exhibit 5 and incorporated herein by reference and is served and filed herewith. /// /// /// /// /// DB2/ 38009904.1 2 NOTICE TO STATE COURT AND ALL PARTIES OF REMOVAL OF CIVIL ACTION TO FEDERAL COURT BY DEFENDANT BMW OF NORTH AMERICA, LLC 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MORGAN, LEWIS & BOCKIUS LLP ATTORNEYS AT LAW SAN FRANCISCO Pursuant to 28 U.S.C. § 1446, the filing of the attached Notice of Removal affects the removal of this action, and this Court may proceed no further unless and until the case is remanded. Dated: December 23, 2019 MORGAN, LEWIS & BOCKIUS LLP Molly Moriarty Lane Garrick Y. Chan By Garrick Y. Chan Attorneys for Defendant BMW of North America, LLC EXHIBIT 1 DB2/ 37998400.1 NOTICE OF REMOVAL OF CIVIL ACTION TO THE UNITED STATES DISTRICT COURT BY DEFENDANT BMW OF NORTH AMERICA, LLC 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MORGAN, LEWIS & BOCKIUS LLP ATTORNEYS AT LAW SAN FRANCISCO MORGAN, LEWIS & BOCKIUS LLP Molly Moriarty Lane, Bar No. 149206 molly.lane@morganlewis.com Garrick Y. Chan, Bar No. 315739 garrick.chan@morganlewis.com One Market, Spear Street Tower San Francisco, CA 94105-1596 Tel: +1.415.442.1000 Fax: +1.415.442.1001 Attorneys for Defendant BMW of North America, LLC UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION MARIA LACAYO, Plaintiff, vs. BMW OF NORTH AMERICA, LLC, et al., Defendants. Case No. NOTICE OF REMOVAL OF CIVIL ACTION TO THE UNITED STATES DISTRICT COURT BY DEFENDANT BMW OF NORTH AMERICA, LLC [Removed from San Francisco County Superior Court Case No. CGC-19- 580869] [28 U.S.C. §§ 1332, 1441, and 1446] [Corporate Disclosure Statement and Certification of Interested Parties; Notice of Appearance; and Declaration filed concurrently herewith] Date Filed: November 18, 2019 Date Served: November 22, 2019 Notice of Removal Filed: December 23, 2019 Case 3:19-cv-08369 Document 1 Filed 12/23/19 Page 1 of 9 DB2/ 37998400.1 1 NOTICE OF REMOVAL OF CIVIL ACTION TO THE UNITED STATES DISTRICT COURT BY DEFENDANT BMW OF NORTH AMERICA, LLC 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MORGAN, LEWIS & BOCKIUS LLP ATTORNEYS AT LAW SAN FRANCISCO TO THE COURT, ALL PARTIES AND THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE THAT that pursuant to 28 U.S.C. sections 1332, 1441(a), and 1446, Defendant BMW of North America, LLC (“BMW NA”) hereby removes the above-entitled action (the “Action”) from the Superior Court of the State of California in the County of San Francisco, to the United States District Court in the San Francisco Division of the Northern District of California. In support of this removal, BMW NA states the following: I. REMOVAL IS PROPER BASED ON DIVERSITY JURISDICTION A. Procedural Background 1. On November 18, 2019, plaintiff Maria Lacayo (“Plaintiff”) commenced this action titled Maria Lacayo v. BMW of North America, LLC, et al., Case No. CGC-19-580869, by filing an unverified complaint (“Complaint”) in the Superior Court of the State of California in the County of San Francisco. The Complaint alleges one cause of action related to Plaintiff’s purchase of a 2016 MINI Cooper S Countryman, VIN WMWZC3CC58GWT07167 (“Subject Vehicle”) pursuant to the Song-Beverly Consumer Warranty Act. Exh. A, Complaint, ¶¶12- 24. Plaintiff alleges she purchased the Subject Vehicle for $29,957.60 and that she seeks “a full refund of entire purchase price paid by Plaintiff for the Vehicle.” Exh. A, Complaint, p. 7 and Prayer for Relief No. 2. Plaintiff also seeks restitution, incidental damages, consequential damages, a civil penalty of up to two times Plaintiff’s actual damages, and attorneys’ fees. Exh. A, Complaint, Prayer for Relief Nos. 6, 7, 8, 14, and 15. Thus, the amount in controversy exceeds $75,000 based on Plaintiff’s claimed damages, statutory civil penalties, and attorneys’ fees. Future attorneys’ fees are included when calculating a reasonable estimate of a plaintiff’s attorneys’ fees. Fritsch v. Swift Trans. Co. of Arizona, LLC, 899 F.3d 785, 794 (9th Case 3:19-cv-08369 Document 1 Filed 12/23/19 Page 2 of 9 DB2/ 37998400.1 2 NOTICE OF REMOVAL OF CIVIL ACTION TO THE UNITED STATES DISTRICT COURT BY DEFENDANT BMW OF NORTH AMERICA, LLC 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MORGAN, LEWIS & BOCKIUS LLP ATTORNEYS AT LAW SAN FRANCISCO Cir. 2018). 2. BMW NA was served with the Summons and Complaint on November 22, 2019, via CT Corporation System, BMW NA’s registered agent for service of process. 3. On December 18, 2019, BMW NA filed an Answer to the state court complaint. Exh. B, BMW NA’s Answer to Plaintiff’s State Court Complaint. 4. Pursuant to the provision of 28 U.S.C. section 1446(a), BMW NA attaches to this Notice and incorporates by reference Exhibits A and B, which includes true and correct copies of all process, pleadings, and orders that have been filed in this action. B. This Court Has Subject Matter Jurisdiction Based on Complete Diversity of the Opposing Parties 5. This is a civil action over which this Court has diversity jurisdiction pursuant to 28 U.S.C. section 1332, and is one that BMW NA may remove pursuant to 28 U.S.C. section 1441, subsections (a) and (b). The requirements for diversity jurisdiction are met here because this is a civil action with an amount in controversy exceeding $75,000, exclusive of interest and costs, and is between citizens of different states. 1. The Amount in Controversy Exceeds $75,000 6. The first requirement for diversity jurisdiction is that the amount in controversy must exceed the sum of $75,000, exclusive of interests and costs. 28 U.S.C. §1332(a). In determining whether a complaint meets the $75,000 threshold amount set forth in 28 U.S.C. § 1332(a), a court must consider the aggregate amount of all the claims, not the amount involved in each individual claim. Campbell v. Hartford Life Ins. Co., 825 F. Supp. 2d 1005, 1008 (E.D. Cal. 2011) (diversity statute confers jurisdiction over entire action, not just specific claims alleged in complaint, and, therefore, claims of single plaintiff are aggregated in order to satisfy amount in controversy). Case 3:19-cv-08369 Document 1 Filed 12/23/19 Page 3 of 9 DB2/ 37998400.1 3 NOTICE OF REMOVAL OF CIVIL ACTION TO THE UNITED STATES DISTRICT COURT BY DEFENDANT BMW OF NORTH AMERICA, LLC 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MORGAN, LEWIS & BOCKIUS LLP ATTORNEYS AT LAW SAN FRANCISCO 7. The fact that a complaint fails to specify the total amount of damages in a dollar amount does not deprive this Court of jurisdiction. See Banta v. Am. Med. Response Inc., 2011 U.S. Dist. LEXIS 77558, at *4 (C.D. Cal. July 15, 2011) (defendant may remove suit to federal court notwithstanding the failure of plaintiff to plead a specific dollar amount in controversy; if the rules were otherwise, “any plaintiff could avoid removal simply by declining to place a specific dollar claim upon its claim”); see also Simmons v. PCR Tech., 209 F. Supp. 2d 1029, 1031-35 (N.D. Cal. 2002) (holding that plaintiff’s damage claim, including lost wages, lost earning capacity, medical expenses, emotional distress, and attorneys’ fees, was enough to put the amount in controversy above $75,000). 8. It is well established that the amount in controversy allegation “is accepted if made in good faith.” Dart Cherokee Basin Operating Co. v. Owens, 135 S. Ct. 547, 554 (2014). To satisfy the amount in controversy requirement, “a defendant’s notice of removal need include only a plausible allegation that the amount in controversy exceeds the jurisdictional threshold.” Id. Similarly, the amount in controversy allegation of a defendant seeking federal-court adjudication “should be accepted when not contested by the plaintiff or questioned by the court.” Id. Thus, removal is proper if, from the allegations of the Complaint and the Notice of Removal, it is more likely than not that the claims exceed $75,000, exclusive of interest and costs. Sanchez v. Monumental Life Ins. Co., 102 F.3d 398, 403-04 (9th Cir. 1996). 9. Here, although BMW NA denies that it is liable for any amount of damages, the amount in controversy based on the claims and allegations in the Complaint exceeds $75,000 exclusive of interest and costs. Plaintiff alleges BMW NA violated the Song-Beverly Consumer Warranty Act and seeks a full refund of the purchase price for the Subject Vehicle. Exh. A, Complaint, Prayer for Relief No. 2. Plaintiff also alleges that she purchased the Subject Vehicle for $29,957.60. Exh. A, Complaint, ¶ 4. Plaintiff also seeks restitution, incidental damages, consequential Case 3:19-cv-08369 Document 1 Filed 12/23/19 Page 4 of 9 DB2/ 37998400.1 4 NOTICE OF REMOVAL OF CIVIL ACTION TO THE UNITED STATES DISTRICT COURT BY DEFENDANT BMW OF NORTH AMERICA, LLC 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MORGAN, LEWIS & BOCKIUS LLP ATTORNEYS AT LAW SAN FRANCISCO damages, a civil penalty of up to two times Plaintiff’s actual damages, and attorneys’ fees. Exh. A, Complaint, Prayer for Relief Nos. 6, 7, 8, 14, and 15. Thus, the amount in controversy exceeds $75,000 based Plaintiff’s claimed damages, statutory civil penalties, and attorneys’ fees. 10. A reasonable estimate of the plaintiff’s attorneys’ fees can be included in the amount in controversy for claims made under the Song-Beverly Consumer Warranty Act. Brady v. Mercedes-Benz USA, 243 F.Supp.2d, 1004, 1010 (2002); Galt G/S v. JSS Scandinavia, 142 F.3d 1150, 1155-56 (9th Cir. 1998) (“[W]here an underlying statute authorizes an award of attorneys’ fees, either with mandatory or discretionary language, such fees may be included in the amount in controversy.”). Additionally, there is no longer a split in authority regarding the proper calculation of attorneys’ fees for purposes of determining the amount in controversy. The courts have determined that future attorneys’ fees - not just attorneys’ fees as of the date of removal - are included when calculating a reasonable estimate of a plaintiff’s attorneys’ fees. See Fritsch v. Swift Trans. Co. of Arizona, LLC, 899 F.3d 785, 794 (9th Cir. 2018). 11. Likewise, the court in Brady specifically held that “there is good reason to include the Song-Beverly Act’s civil penalty of up to two times the amount of actual damages in the amount in controversy.” Brady, supra, 243 F.Supp.2d at p. 1009. The Song-Beverly Act’s civil penalty differs in at least two respects from punitive damages. First, the Song-Beverly civil penalty is capped at two times the plaintiff’s actual damages. CA Civ. Code §1794(c). By contrast, there is no specific limit on the amount of punitive damages that can be awarded in an action and thus they are necessarily more speculative. See College Hospital, Inc. v. Superior Court, 8 Cal.4th 704, 712 (1994). Second, the standards of proof are different. While punitive damages require a plaintiff to prove with clear and convincing evidence that the defendant acted with malice, oppression, or fraud, in order to obtain civil penalties under the Song-Beverly Act, the plaintiff must prove by a preponderance of the Case 3:19-cv-08369 Document 1 Filed 12/23/19 Page 5 of 9 DB2/ 37998400.1 5 NOTICE OF REMOVAL OF CIVIL ACTION TO THE UNITED STATES DISTRICT COURT BY DEFENDANT BMW OF NORTH AMERICA, LLC 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MORGAN, LEWIS & BOCKIUS LLP ATTORNEYS AT LAW SAN FRANCISCO evidence that the defendant willfully failed to repurchase the vehicle. See CACI 3948, CACI 3244 (revised May 20181). The heightened evidentiary standard also makes punitive damages awards more speculative. Thus, the amount in controversy exceeds $75,000 and the jurisdictional amount needed to establish diversity jurisdiction is met. 2. Complete Diversity Exists 12. The second requirement, complete diversity of citizenship, is met when all plaintiffs are diverse from all defendants. 28 U.S.C. §1332(a)(1). Removal of such an action is appropriate when no defendant is a citizen of the same state in which the action was originally brought. 28 U.S.C. § 1441(a)-(b). For purposes of diversity, a corporation is deemed to be a citizen of (1) the state under whose laws it is organized; and (2) the state of its “principal place of business.” 28 U.S.C. § 1332(c)(1). The citizenship of “Doe” defendants, however, is disregarded for removal purposes. 28 U.S.C. § 1441(b)(1); Newcombe v. Adolf Coors Co., 157 F.3d 686, 690-91 (9th Cir. 1998) (holding that, for removal purposes, the citizenship of defendants sued under fictitious names shall be disregarded); see also Soliman v. Philip Morris, Inc., 311 F.3d 966, 971 (9th Cir. 2002). 13. Here, the diversity requirements are met. Plaintiff is a citizen of California, as established by the Complaint. Exh. A, Complaint, ¶1. Defendant BMW NA is a privately held Delaware limited liability company with its principle place of business located in Woodcliff Lake, New Jersey. BMW NA is a wholly owned subsidiary of BMW (US) Holding Corp., which is the sole member of BMW NA, and it is incorporated under the laws of Delaware, and has its headquarters and principal place of business in the State of New Jersey. Accordingly, BMW NA is a citizen of Delaware and New Jersey, not California. See 28 U.S.C. § 1332(c)(1); Johnson v. Columbia Props. Anchorage, LP, 437 F.3d 894, 899 (9th Cir. 2006) 1 CACI 3244 as revised defines “willful” in the context of a Song-Beverly claim as the defendant “knew of [its] legal obligations and intentionally declined to follow them.” Case 3:19-cv-08369 Document 1 Filed 12/23/19 Page 6 of 9 DB2/ 37998400.1 6 NOTICE OF REMOVAL OF CIVIL ACTION TO THE UNITED STATES DISTRICT COURT BY DEFENDANT BMW OF NORTH AMERICA, LLC 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MORGAN, LEWIS & BOCKIUS LLP ATTORNEYS AT LAW SAN FRANCISCO (“[L]ike a partnership, an LLC is a citizen of every state of which its owners/members are citizens.”); BMW NA’s Corporate Disclosure Statement ¶ 1.) 14. Therefore, this Court has diversity jurisdiction over this matter pursuant to 28 U.S.C. section 1332(a)(1), and the Action may be removed to this Court under 28 U.S.C. sections 1441 and 1446. C. All Additional Prerequisites for Removal Are Satisfied 15. This Notice of Removal is timely. A notice of removal must be filed “within 30 days after the receipt by the defendant, through service or otherwise,” of the initial pleading or “other paper from which it may first be ascertained that the case is one which is or has become removable.” 28 U.S.C. § 1446(b)-(c). This Notice of Removal is timely because Plaintiff served BMW NA on November 22, 2019. Thus, the last day to file this Notice of Removal is December 23, 2019. 16. No previous Notice of Removal has been filed or made with this Court for the relief sought herein. 17. Venue is proper in this Court because the Action is pending in the County of San Francisco, California, and Plaintiff is a citizen of California who resides in San Francisco County. Thus, the United States District Court for the San Francisco Division of the Northern District of California is the “district and division embracing the place where such action is pending.” 28 U.S.C. § 1441(a). 18. A copy of this Notice of Removal is being promptly served upon counsel for Plaintiff and a copy is being filed with the Clerk of the Superior Court of the State of California for the County of San Francisco, as required by 28 U.S.C. section 1446(d). 19. If any question arises as to the propriety of the removal of this Action, BMW NA respectfully requests the opportunity to submit a brief and present oral argument in support of its position that this case is removable. For the forgoing reasons, Defendant BMW NA respectfully requests that this action be removed from the Superior Court of the State of California, for the County Case 3:19-cv-08369 Document 1 Filed 12/23/19 Page 7 of 9 DB2/ 37998400.1 7 NOTICE OF REMOVAL OF CIVIL ACTION TO THE UNITED STATES DISTRICT COURT BY DEFENDANT BMW OF NORTH AMERICA, LLC 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MORGAN, LEWIS & BOCKIUS LLP ATTORNEYS AT LAW SAN FRANCISCO of San Francisco, to the United States District Court in the San Francisco Division of the Northern District of California, and that all future proceedings in this matter take place in that District Court. Dated: December 23, 2019 MORGAN, LEWIS & BOCKIUS LLP Molly Moriarty Lane Garrick Y. Chan By /s/ Garrick Y. Chan Garrick Y. Chan Attorneys for Defendant BMW of North America, LLC Case 3:19-cv-08369 Document 1 Filed 12/23/19 Page 8 of 9 DB2/ 37998400.1 1 PROOF OF SERVICE 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MORGAN, LEWIS & BOCKIUS LLP ATTORNEYS AT LAW SAN FRANCISCO PROOF OF SERVICE I, Dolores M. Rivera, declare: I am a citizen of the United States and employed in the City and County of San Francisco, California. I am over the age of eighteen years and not a party to the within entitled action. My business address is One Market, Spear Street Tower, San Francisco, CA 94105-1126. On December 23, 2019, I served a copy of the within document(s):  NOTICE OF REMOVAL OF CIVIL ACTION TO THE UNITED STATES DISTRICT COURT BY DEFENDANT BMW OF NORTH AMERICA, LLC U.S. MAIL: I placed the document(s) listed above into envelope(s) addressed to the person(s) at the address(es) set forth below. I placed the sealed envelope(s) for collection and mailing by following the ordinary business practices of Morgan, Lewis & Bockius LLP, San Francisco, California. I am readily familiar with the firm’s practice for collecting and processing of correspondence for mailing with the United States Postal Service, said practice being that, in the ordinary course of business, correspondence with postage fully prepaid is deposited with the United States Postal Service the same day as it is placed for collection. Charles J. Lee, Esq. Christopher M. Lovasz, Esq. Consumer Legal Services, P.C. 2330 Long Beach Boulevard Long Beach, CA 90806 Tel: 562.424.3293 Fax: 562.595.1849 VIA U.S. MAIL Attorneys for Plaintiff, Maria Lacayo Executed on December 23, 2019 at San Francisco, California. I declare under penalty of perjury, under the laws of the State of California and the United States of America, that I am employed in the office of a member of the bar of this court at whose direction the service was made. Dolores M. Rivera Case 3:19-cv-08369 Document 1 Filed 12/23/19 Page 9 of 9 ~ EXHIBIT 2 Case 3:19-cv-08369 Document 1-1 Filed 12/23/19 Page 1 of 2JS-CANO 44 (Rev. 06/ 17) CIVIL COVER SHEET The JS-CANO 44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service of pleadings or other papers as required by law, except as provided by local rules of court. This form, approved in its original form by the Judicial Conference of the United States in September 1974, is required for the Clerk of Court to initiate the civil docket sheet. (SEE INSTRUCTIONS ONNEXI PAGE OF THIS FORM.) I. (a) PLAINTIFFS Maria Lacayo DEFENDANTS BM\V of North America, LLC, and Does 1 through 20 (b) County of Residence of First Listed Plaintiff (EXCEPT IN U.S. PLAINTIFF CASES) San Francise-0 County of Residence of First Listed De.fondant (Liv U.S. PLAINTIFF CASES ONLl) ( c) Attorneys (Firm Name, Address, and Telephone Number) CONSUMER LEGAL SERVICES. P.C. Cluistcplter M_ LIMI.Sz Claarlc:"l I , Lee f;lf, 1-n_:! 3 ~1:i 801dcvard. Long Beach. C'alifomia 90&06 NOTE: IN LAND CONDEMNATION CASES, USE THE LOCATION OF THE TRACT OF LAND INVOLVED. Attorneys (If Known) ~~~!;;::~ t!~ckius LLP Gamck Y. Chan ~~5f~So&f11' Strcc"t Tower, San Francisco, CA 94105 II. BASIS OF JURISDICTION (Place a11 ""X'' in One Box Only) Ill. CITIZENSHIP OF PRINCIPAL PARTIES (Place a11 "X" in 011e Boxfor Plaintiff (For Diversity Cases Only) and One Box for Defendant) PTF DEF PTF DEF U.S. Government Plaintiff 3 Federal Question (U.S. Govenimenl Not a Party) Citizen of This State X I I Incorporated or Principal Place 4 4 of Business In This State 2 U.S. Govemment Defendant X 4 Diversity (Indicate Citizenship of Parties ill I/em Ill) Citizen of Another State 2 X 2 Incorporated and Principal Place 5 of Business In Another State C itizen or Subject of a 3 3 Foreign Nation 6 6 Foreign Country rv. NATURE OF SUIT (Place 011 "X'" in One Box Only) CONTRACT TORTS FORFEITUREIPENAL TY BANKRUPTCY OTHER STATUTES 110 Insurance PERSONAL INJURY PERSONAL INJURY 625 Drug Related Seizure of 422 Appeal 28 USC§ 158 375 False Claims Act 120 Marine 3 IO Airplane 36 5 Personal Injury - Product Property 21 USC § 881 423 Withdrawal 28 USC 376 Qui Tam (31 USC 130 Miller Act 315 Airplane Product Liability Liability 690 Other § 157 § 3 729(a)) 140 Negotiable Instrument 320 Assault. Libel & Slander 367 Health Care/ LABOR PROPERTY RIGHTS 400 State Reapportionment 150 Recovery of 330 Federal Employers' Pharmaceutical Personal 7 IO Fair Labor Standards Act 820 Copyrights 410 Antitnist Overpayment Of Liability Injury Product Liability 720 Labor/ Management 830 Patent 430 Banks and Banking Veteran's Benefits 368 Asbestos Personal Injury 450 Commerce 340 Marine Relations 835 Patent-Abbreviated New 151 Medicare Act 345 Marine Product Liability Product Liability 740 Railway Labor Act Dmg Application 460 Deportation 152 Recovery of Defaulted 350 Motor Vehicle. PERSONAL PROPERTY 751 Family and MeclUII 1he ptmrmn. A IPIU'f er pnQftl) tall v.-rn noti,n,:ec-t ycu 'lout \vlltron te'>pl)t'lst) must b'lt ,n ~ lt>gnJ fOt'Tl ,: ~ \Vl'II IJ1& r.ouu lo "~I yo.,, f .-a!e- 1h~•~ m.!i> '.l.t a •.:uurt •orn11t>at !fOI.< t.tn use ror you, raiPCJ?ISO )'ouean 11r1u •M!UJ CC'lurt."Ctnt.5 ant.· n,om 1nro,mu1,cu a! lhti Catfamµ,a Cc:.rr!J i .(.lnfs~ !ieH-Hc:li;- Ct:n1-.r (~W t:0111Wo.r;, g,w~io). l'OUT county ;,NJ otnry. °' ~ ccu~ne nQOtitfl&l ,t,u 11 you CBf''ICI p.)y tJa~ flt mg tee_ a,1r 1rw ,t.,.,ur' . .:tor:i. for c1 teo W&!Vef iro;,n I~ y.,u do 11nt frftJ ),)I.Jr ,e,.:ior~ 011 fur1e. yW XlcfY r05e me ease by dl?!eull l'll'd YCV! ~agtis, "T"Ol'l1:IY ar,,f propc,~ n,,1y b-i ta\en w,1rn, ... 1 furt/\tr \Or.!l1''"1J fl(;,n !tie c-:,.u,r lhi:AJ -:ti1.~ ,_,11,e, :egal rcQU<.'g,am 'iou can 1nc31., 1.-.esa nonp11>fil grot,1)1; a1_ the C.tli!c,:lWJ. Legol s~ Web '1t~ 1"''"-" tir-r/'lelpctitrrorttss OI!/). rnit Cf.liifon,13 Cw-tt Or>-tt"' Suff-~alc O..nlei (WW1V c,,um11ft'I .:.-'J 90"'Sl!Ufttltpl, (A by '°'IWCl1ng Ytk.lr Socs' C.OU'l O! l:OIJJ1ty bdr t!G.iOl;lab\ln. NOTE; r11e t.'Oli•I na& a ,tat,,,:O•-, -~ 1()1" ·.-rc,wtd raea ond \a/J:3l-'i t'/1'1 'Jf!)' .wt,ie.n!lnl o, ?Jb1'il.!frO'l d\l':lrd ofSI0-.000 or :r10 :,,,ver,en s,, ,s..,;p,'11~t.a jJOJ'esc1tto •rsm1 qua utar 6-n (01,'<-.Jto /""'}RI '.'0/1'6..t() s, de.sfJ'>. f11J8 procesc,l $U c:.]S('I qn !a ,;o,fe E .,,, ta .. 01111 q~ lJ> qlll:rde miis cen:,1 s, no pllef/e (H:/Jdf {;I ~a cu prosefl/dCIOrt psda tJI ,'llXffi!'Jno de .G!J coif• QflP /a~:;,, formuls:.o de R¥011Cr6'1 d• poga do cllO/o~ SJ '!I' prmonta su respUQsta a tlfl/7'1/JO, puedo porde, el caso por lncumplurmmto y fa corte ID IJO(Jt,J olt.l'fAr !;;U :)"111'/®, (d~s,o V lh&no~ sin ffldS Rd~,mnc,a.. I loy ,'lJOS 1ttq:is,1Q3 i$ ,111 l'ln011 Jalu=t'> PIJedtl oncontra1 '1Sl0$Qft1)~ SI() Ji(l8$ ,'/FJ lcJCr;, 611 d )l[/0 "IPb 1" Car,U:Vt1l8 l..11gai S•f'l,1t''J.S. t,,r.,..w 1,3v,n,:>l!)tal~<•1r.LB ur9J, en e, Centre 1o Ayvd'D di!! las Co,rc:; dft Ce,'ifom,s. (W-t..r ~1A."1)t~ cu..io.-1 u f)OIW)not,S6 "" w~t-!l:.:t'u CQn lli t:utto o cl -:ffl'Jp,c rf amecno ~ rel°'lltrnJr 1a3 ,:,,cla., ; lo$. .:n:stos ,.retdos """' ,rnoc,nf>f ,.fl 9,a~amt1fl su!)re wa:qu,r:Jf' n.'CU.m!c!CIOn $1 510 ()OD o mr'f,s at> wJ/Qr ,ec:r.da ;r~,;inie un acwnc:c o un-, cxmceS10r1 dfJ emi,ap ,m 1m t:tlSO .:fa 00•~ -;.vH Ti5n~ :;-a~ oogu, ct :,1<1~0f'IC-n il6 In (:O!ft> .~ntos dt1 qtM ia col/tu puCQJ ~:.oc:na, 81 :asa. The name and add1ess or !he cour1 1~ (£1 nombre y d1'licci6n rte 'a corto es): ~r .. ri 1-'r:mc: -· :, :;:ui:,..?1" •. Jc C~•ur;_:1ou!le ,ton K:;:/u U.:>.:~: t~L .<:?c:. Sn:1 Frdll' : ::c;o, ,:.'\ 9.: 117. (hu ndn1e_ adU1ess. £mrl !.-Jeptt~ne 11urnhe1 'Jf ptainftft"s .:tll-:l1nay, or ple1ritiffwilhou1 an attorney. rs: I ~-~~nil~/~, 'J J11l~~':'c;n \ ;;' !~Ull~t?v18 }~~!¥~~-rel Bbogerfo de/ deme11<1srrte. 0 1.'s' trr:z~~ntl g3e 1)0 tiene abogado, es): (':ons!.lrnru Legal Service.:;, P.C. ·:.':JG LUn-- B~i:iCh &lv.J., J,OO(J B-=a...:h, CA 908(.·Q OS.TE: NOV 1 8 20'19 Cle,k, by (Fscha) . Clerk of the Court (Secrctllri<,J JIJ/GEI.ICA SUNGA ;·For proof of ser.1ice of this sammoos, use Proof of Service of sUn1mons (form POS:.tnD).J Deputy /Ad}unto) (Para pmeba d() £>nfr&ga de esra t:Jlati611 vse el lormulorio Proof of Service or Summons. (POS-010)). I I NOTICE TO THE PERSON SERVED: You are Served 1 D as an md1v1dual defendant 2 CJ as the person sued unde1 Itta fictilfous name ol fsp9cifyj 3. C. :J on bahotf ot (specify): under: D D D GCP416.IO(corpora!ion) O CCP 416.20 (defunct corporation) D CCP 416 40 (assoc,atioo or pa1!norship/ D _ _I 4, CJ olhm (spec,(y)' ; :-: ! by µersonal delivery a,, (dafttJ . -·-·---· -·-------------------· · • ~,:w,•;,,..,:;, ;, M~"l.•, SUMMONS ~•• l,t:•,M~•• ,•f0:C"O~•• •; •1., ,;•, i;- •• •'M•: O ,i;,•-;; BYFA)( ONE LEGAL LLC CCP 4 !S.60 (minor) CCP -i J0.70 (ccnservatce) CCP 418.90 (authorized person) ·•·--• •- •- _ "';~ l~\1 . .-,,...,i-.,-.,'r';~1.'l"v ).~•, -... . ... ..... ,,,,., Case 3:19-cv-08369 Document 1-3 Filed 12/23/19 Page 4 of 21 - ---~CM-010 ·---, -'"'"" (562)595-1849 ! SUPERIOR COURT OF CALIFORNIA, COUNTY OF San r rdncisco snt1::cr AOORE~s 400 McAllister Street u41uN-uADMess 400 McAllister Srreet c.,rY ... m, l.lPCOOl'· San Frdncisco, 94102 . CASENAME i Mmia l.aca.r \ _!:!~.!.~._c-~fNorth America, LLC -1 CIVIL CASE CO [XJ UnJimited O Limited {Amount {Amount Complex C.ase Designation D Counter D Joinder ENDORSED _ FJLED San nanc,sco County Suf)l3rior Court NOV 18 2019 CLERK OF THE COURT aY:_~AN"-'GE=Uc:Cc.:cA=:SU:c:.No.:G::..:A __ OewyClelf< CASS NUMB.EA: de!T'anded demanded Is j Filed wllti ffrsl appearance by defendant exceeds $25,000) $25,000 or less) (Cal Rules of Court, rule 3.402) DEPT _ Items 1:6 belo~ ml I.St b& (!XJ1p/eted ;S(t(J mSlruthoos on J)a!lo 2'J- r Check one box below for the case type that best describes this case: Auto Tart Contract Pravismoalty Compru Civil Ulig~tion D Auto (22) (X] Breach or contract/warranty {06) (Cal Rules of Court, rules 3,400-3,403) LJ Llmnsuri:CJ rnowrtst {t•o trrovislonally complex ce&e Non.PIIPOI\YD (Olhcr) Tort D Wrong(IJI eviction (33) typart!: Code.). (Cal. Ru!e~ ol Court, rule 3 220.) rai!ure to file n,ay resul! rn ~.tnchon:; • I •It! :his cover Shl.!et en adclll:on to i'.lny cover sheet required by local court rule • f Uus case Is complt!.,. under rule 3.400 ct sea of lhe Cal!lornitJ Rules of Corn!, you must serve a copy at lh1s cover sheet on all 0Iher paitIe~ lo ilte action or proceeding • 1Jn]es:c this i~ O col1ectiom, Cd$e under rule J 740 or a cumple.x ca:.e, this cover sneel will be used tor Slalis1ica/ purpose,; onz =-> .. .. 0 - :'9•10!;,I , ::.~~Wl~~;-~~C'!;'..:t~-..i CIVIL CASE COVER SHEET 1 ~/ ~;;,,•;::1 ~_!:!i::,,:.:;,~ .. ;:,\d3 ~•1~ Cl.4-C..1UIR•• .. ....,, I )00/1 .........,cou'1dllb~•aw I Case 3:19-cv-08369 Document 1-3 Filed 12/23/19 Page 5 of 21 CASE NUMBl:R: CGC-19-580869 MARIA LACAYO VS. BMW OF NORTH AMERICA, LLC, ET t NOTICE TO PLAINTIFF A Case Management Conference is set for: DATE: APR-22-2020 TIME: 10:30AM PLACE: Department 610 400 McAllister Street San Francisco, CA 94102-3680 All parties must appear and comply with Local Rule 3. CRC 3. 725 requires the filing and service of a case management statement form CM-110 no later than 15 days before the case management conference. However, it would facilitate the issuance of a case management order without an appearance at the case management conference if the case management statement is filed, served and lodged in Department 61 0 twenty-five (25) days before the case management conference. Plaintiff must serve a copy of this notice upon each party to this action with the summons and complaint. Proof of service subsequently filed with this court shall so state. This case is eligible for electronic filing and service per Local Rule 2.11. For moro infonnation, please visit the Court's website at www.sfsuperiorcourt.org under Online Services. [DEFENDANTS: Attending the Case Management Conference does not take the place of filing a written response to the complaint. You must flle a written responeo with the court within the time limit required by law. See Summons.] ALTERNATIVE DISPUTE RESOLUTION REQUIREMENTS IT IS THE POLICY OF THE SUPERIOR COURT THAT EVERY CIVIL CASE SHOULD PARTICIPATE IN MEDIATION, ARBITRATION, NEUTRAL EVALUATION, AN EARLY SETTLEMENT CONFERENCE, OR OTHER APPROPRIATE FORM OF ALTERNATIVE DISPUTE RESOLUTION PRIOR TO A TRIAL (SEE LOCAL RULE 4) Plaintiff must serve a copy of the Alternative Dispute ,Resolution (ADR) lnfonnation Package on each defendant along with the complaint. (CRC 3.221.) The ADR package may be accessed at www.sfsuperiorcourt.org/divisions/civil/dispute-resolution or you may request a paper copy from the filing clerk. All counsel must discuss ADR with clients and opposing counsel and provide clients with a copy of the ADR lnfonnation Package prior to filing the Case Management Statement. Superior Court AlternaUve Dl&pute ResoluUon Administrator 400 McAllister Street, Room 103-A San Francisco, CA 94102 (415) 551-3869 See Local Rules 3.3, 6,0 C and 10 B re sUpulallon to Judge pro tern. Case 3:19-cv-08369 Document 1-3 Filed 12/23/19 Page 6 of 21 Superior Cour·t of California, County of San Francisco Alternative Dispute Resolution Information Package The plaintiff must serve a copy of the ADR Information Package on each defendant along with the complaint. Cross-complainants must serve a copy of the ADR Information Package on any new parties to the action together with the cross-complaint. (CRC 3.221(c).) WHATISADR? Alt.ernative Dispute Resolution {ADRJ is the term used to describe the various options available for settling a dispute without a trial. There are many different AOR processes, the most common forms of which are mediation, arbrtration and settlem_ent conferences. In AOR, trained, impartial people decide disputes or help parties decide disputes themselves. They can help parties resolve disputes without having to gu to trial. WHY CHOOSE ADR? It is the policy of the Superior Court that every long cause, non-criminal, non-juvenile case should participate either in an early settlement conference, mediation, arbitration, early neutral evaluation or some other alternative dispute resolution process prior to trial. {Local Rule 4.) ADR can have a number of advantages over traditional litigation: ADR can save time. A dispute often can be resolved in a matter of months, even weeks. through ADR, while a lawsuit ,an take years. • AOR can save money, including court costs, attorney fees, and expert fees. • ADR encourages paniclpation. The parties may have more opportunities to tell their story than in court and may have more control over the outcome of the case. • ADR is more satisfying. For all the above reasons, many people participating in AOR have reported a high degree of satisfaction. ,.. •Electing to particioate in an ADR omcess does not stoo the time period to respond to a complaint or cross-complaint*• WHAT ARE THE ADR OPTIONSl The San Francisco Superior Court offers different types of ADR processes for general civil matters. The programs are described below: 1) MANDATORY SITTLEMENT CONFERENCES Settlement conferences are appropriate in any case where settlement is an option. The goal of settlement conferences is,.Jo provide participants an opportunity to reach a mutually acceptable settlement that resolves alfor part of a dispute. Mandatory settlement conferences are ordered by the court and are often held near the date a case is set for trial, although they may be held earlier if appropriate. A parry may elect to apply to the Presiding Judge for a specially set mandatory settlement conference by filing an ex parte appllcatiOn. See Local Rule 5.0 for further Instructions. Upon approval by the Presiding Judge, the court will schedule the conference and assign a settlement conference officer. ADR-1 10/18 Page 11 Case 3:19-cv-08369 Document 1-3 Filed 12/23/19 Page 7 of 21 2) MEDIATION Mediation is a voluntary, flexible; and confidential process In which a neutral third party facilitates negotiations. The goal of mediation is to reach a mutually satisfactory agreement that resolves all or part oi a dispute after exploring the interests, needs, -and priorities of the parties in light of relevant evidence and the law. (A) MEDIATION SERVICES OF THE BAR ASSOOATION OF SAN FRANCISCO (BASF), in cooperation with the Superior Court, is designed to help civil litigants resolve disputes before they incur substantial costs in litigation. While it is best to utilize the program at the outset of litigation, parties may use the program at any time while a case Is pending. Experienced professional mediators work with parties to arrive at a mutually agreeable solution. The mediators provide one hour of preparation time and the first two hours of mediation time. Mediation time beyond that Is charged at the mediator's hourly rate. BASF pre-screens all mediators based upon strict educational and experience requirements. Parties can seiect their mediator from the panels at www.sfbar.org/mediation or BASF can assist with mediator selection. BA.SF staff handles conflict checks and full case management. The success rate for the program is 67% and the satisiaction ,ate Is 99%. BASF charges an administrative fee of $295 per party. The hourly mediator fee beyond the first three hours will vary depending on the mediator selected. Waivers of the fee are available to those who qualify. For more information, call 415-982-1600 or email adr@sfbar.org. (B) JUDICIAL MEDIATION PROGRAM provides mediation with a San Francisco Superior Court judge for civil cases, which include but are not limited to, personal injury, construction defect, employment, professional malpractice, insurance coverage, toxic torts and industrial accidents. Parties may utilize thls program at any time throughout the litigation precess. Parties interested fnjudicial mediation should file a Stipulation to Judicial Mediation indicating a Joint request for inclusion in the program. A preference for a specific judge may be indicated. The court will coordinate assignment of cases for the program. T.here is no charge. Information about the Judicial Mediation Program may be found by visiting the ADR page on the court's website: www.sfsuperiorcourt.org/divisions/civll/dispute-resolutlon (C) PRIVATE MEDIATION: Although not currentiy a part of the court's ADR program, parties may select any private mediator of their choice. The selection and coordination of private mediation is the responsibility of the parties. Parties may find mediators and organizations on the lntern'et. The cost of private mediation will vary depending on the mediator selected. (D) COMMUNITY BOARDS MEDIATION SERVICES: Mediation services are offered by Community Boards (CB), a nonprofit resolution center, under the Dispute Resolution Programs Act. CB utilizes a three-person panel mediation process in which mediators work as a team to assist the parties fn reaching a shared solution. To the extent possible, mediators are selected to reflect the demographics of the discutants. CB has a success rate of 85% for parties reaching a resolution and a consumer satisfaction rate of 99%. The fee is $45-$100 to open a case, and an hourly rate of $180 for complex cases. Reduction and waiver of the fee are available. For more information, call 415-920-3820 or visit communityboards.org. Pa!J'I I 2 J I f Case 3:19-cv-08369 Document 1-3 Filed 12/23/19 Page 8 of 21 3) ARBITRATION An arbitrator is a neutral attorney who presides at a hearing where the parties present evidence through exhibits and testimony. The arbitrator applies the law to the facts of the case and makes an award based upon the merits of the case. (A) JUDICIAL ARBITRATION When the court orders a case to arbitration it is called "judicial arbitration". The goal oi arbitration is to provide parties with an adjudication that is earlier, faster, less formal, and usually less expensive than a trial. Pursuant to CCP 1141.11, all civil actions in which the amount in controversy is $50,000 or less, and no party seeks equitable relief, shall be ordered to arbitration. {Upon stipulation of all parties, other civil matters may be submitted to Judicial arbitration.) An arbitrator Is chosen from the court's arbitration panel. Arbitrations are generally held between 7 and 9 months after a complaint has been filed. Judicial arbitration is not binding unless all parties agree to be bound by the arbitrator's decision. Any party may request a trial within 60 days after the arbitrator's award has been filed. Local Rule 4.1 a!lows for mediation in lieu of judicial arbitration, so long as the parties file a stipulation to mediate after being assigned to judicial arbitration. There is no cost to the parties for judicial arbitration. (8) PRIVATE ARBITRATION Although not currently a part of the court's ADR program, civil disputes may also be resolved through private arbitration. Here, the parties voluntarily consent to arbitration. If all parties agree, private arbitration may be binding and the parties give up the right to Judicial review of the arbitrator's decision. In private arbitration, the parties select a private arbitrator and are responsible for paying the arbitrator1s fees. HOW DO ! PARTICIPATE IN ADR? litigants may elect to participate in AOR at any point in a case. General civil cases may voluntarily enter into the court's or court-affiliated ADR programs by any of the following means: • Filing a Stipulation to ADR: Complete and file the Stipulation form (attached to this packet and available on the court's website); or • Indicating your ADR preferences on the Case Management Statement (available on the court's website); or Contacting the court's ADR Department (see below), the Bar Association of San Francisco's ADR Services, or Community Boards. For mare information about ADR programs or dispute resolution alternatives, contact: Superior Court Alternative Dispute Resolution 400 McAllister Street, Room 103-A, San Francisco, CA 94102 415-551-3869 Or, visit the court's ADR page at www.sfsuperlorcourt.org/dtvisions/civil/dispute-resolution ro PARTICIPATE IN ANY OF THE couRrS ADR PROGRAMS, PLEASE COMPLETE AND FILE THE ATTACHED 51 IPULATION TO ADR AND SUBMIT IT TO THE COURT. YOU MUST ALSO CONTACT BASF OR COMMUNITY BOARDS TO ENROLL iN THEIR LISTED PROGRAMS. THE COURT DOES NOT FORWARD !:OPiES OF ~TIPULATIONS TO BASF OR COMMUNITY BOARDS. AUl"<-1 10/1 ~ Pogo j 3 Case 3:19-cv-08369 Document 1-3 Filed 12/23/19 Page 9 of 21 'ARrY't'.'ffriOl,,,'T ,,noRNt:-( !Name i;,m; addrou) FOR COURT USE OHJ.Y .h .i.N0. (t-famtrJ: . SUPE?.itm r."&Jf. CA . CAUi:orffiii\-COUNTY OF SAN FRANCISCO ' g.t.iil2-.1514 ONER: : : ,£:;t,;,·.u:.1•il KE i i-\)NCE'N';. ; ~- - -· -------- sr. .,PULATION TO ALTERNATIVE DISPUTE RESOLUTION (AOR) CASE NUMBER: DEPARTMENT 810 -·· --- 1) The parties hereby stipulate that this action shall be submitted to the followfng AOR process: D ··, L... Mediation Services of the Bar Association of San Francisco (BASF) - Experienced professional mediators, screened and approved, provkfe one hour of preparation and the first two hours of mediation tfme for a BASF administrative fee of $295 per party. Mediation ttmo boyond ttr.Jt i::; charged ot tho mediator'::; hourfy rnto. Woivcro of the odmlnl!:;trattve foe arc available to those who qualify. BASF assists parties with mediator selectlon, conflicts checks and full case management. www.sfbar.org/mediation Mediation Services of Community Boards (CB) - Service in conjunction with DRPA, CB provides case development and one three-hour modiotion ~C!Joion. Additional ooooiono moy bo GChodulod. The cost Is $45 £100 to open o coco. and an hourty roto of $180 for complex cases. Reductfon and waiver of the fee are available to those who qualify. communftyboerds.org Private Mediation • Mediatora and ADR provider organizaUons charge by !he hour or by !he day, current mali