defendants wheels up partners llc and gama aviation llcs reply in su

Cal. Super. - 1st Dist.October 13, 2021

Randolph S. Hicks, Esq. - SBN 83627 Mahmoud A. Fadli, Esq. - SBN 280607 Jodie Steinberg, Esq. - SBN 244708 CODDINGTON, HICKS 8r DANFORTH A Professional Corporation, Lawyers 555 Twin Dolphin Drive, Suite 300 Redwood City, CA 94065-2133 Tel.: 650.592.5400 Fax: 650.592.5027 ATTORNEYS FOR Defendants Wheels Up Pattners, LLC and GAMA Aviation, LLC 10 IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF SAN FRANCISCO 11 12 13 14 15 16 17 19 20 SHARON BARR-DAY and BRANDON DAY, Plaintiffs, vs. WHEELS UP PARTNERS, LLC a New York Limited Liability Company; GAMA AVIATION LLC, a Connecticut Limited Liability Company doing business as Gama Aviation Signature, Currently Unknown Pilot in Command sued herein as DOE 1; Currently Unknown Co-Pilot, sued herein as DOE 2; and DOES 3-50, inclusive, Defendants. I. INTRODUCTION Case No. CGC-20-584022 DEFENDANTS WHEELS UP PARTNERS, LLC AND GAMA AVIATION, LLC'S REPLY IN SUPPORT OF THEIR MOTION TO COMPEL FURTHER RESPONSES TO REQUESTS FOR PRODUCTION, SET TWO DISCOVERY MOTION Date: July 26, 2021 Time: 9:00 a.m. Dept: 302 21 22 23 24 25 26 27 Plaintiff argues in her opposition to defendants'otion to compel further responses to request for production set two that the Court should not grant defendant's motion because (1) the documents sought are not relevant or privileged; (2) defendant is trying to "steal" the court reporter's work product for a deposition transcript in a UIM matter; (3) defendants did not define UIM and Farmers; and (4) defendants issued subpoenas for records being requested. Each of these arguments is frivolous, without merit and a feeble attempt by plaintiff to prevent production of highly relevant documents directly relevant to plaintiffs credibility and many of 28 her claims in this current litigation. 1 Defendants'eply in Support of Motion to Compel Further Responses Case No: CGC-20-584022 786257 ELECTRONICALLY F I L E D Superior Court of California, County of San Francisco 07/16/2021 Clerk of the Court BY: ERNALYN BURA Deputy Clerk II. LEGAL ARGUMENT 4 5 6 7 8 9 10 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 A. The Brokerage Records Are Relevant For The Wage Loss And Loss of Earnings Clatms, Plaintiff's brokerage records are highly relevant for purposes of her wage loss and loss of earning capacity claims as she is a real estate broker. The fact that plaintiff's counsel can argue otherwise is completely disingenuous. Plaintiff argues defendants already subpoenaed the brokerage records or could do so. (See Opposition at p. 3:23-24; p. 6:1-22) However, this does not give plaintiff the right to then withhold records within her custody and control after. a reasonable search and diligent inquiry. If plaintiff cannot produce the documents requested, she must state it: "...is because the particular item or category has never existed, has been desttoyed, has been lost, misplaced, or stolen, or has never been, or is no longer, in the possession, custody, or control of the responding party. The statement shall set forth the name and address of any natural person or organization known or believed b)t that party to have possession, custody, or control of that item or category of item.'Civ.Proc. () 2031.230.) Plaintiff does not cite to one case which stands for the proposition that simply because a defendant has subpoenaed employment records, that gives plaintiff carte blanche to refuse to produce records. Again, it is interesting that plaintiffs counsel attempts to argue that defendants did not comply with the Code of Civil Procedure'hen it is truly plaintiff's counsel who failed to comply with the Code . Thus, plaintiff's argument is nonsensical and should be ignored by the Court. In addition, plaintiff seems to be separately identifying her tax records and is seeking to prevent the disclosure of them based on privacy. (See Opposition at p. 6:24-26; p. 7:2-9) However, if plaintiff does not want to produce her tax returns, that again does not preclude plaintiff from producing wage loss and employment documents responsive to defendants' Plaintiff argues Defendants did not comply with Civ. Proc. $ 2031.030(c)(1) and (2) in their response to defendants'equest for production set two. See Exhibit 3 to Hicks Declaration filed with Defendants'otion to CompeL However, as the Court can see in Exhibit 2 to Hicks Dedaration, Defendants complied by stating specifically what to produce, i.e. interrogatories and the deposition of plaintiff in the UIM matter, as weII as to produce said documents within 30 days. This is in compliance with the Code of Civil Procedure. 28 See footnote 1 above and Exhibit 3 to Hicks Declaration filed with Defendants'otion to Compel. 2 Defendants'eply in Support of Motion to Compel Further Responses Case No: CGC-20-584022 786257 discovery requests that would not include her tax returns. Plaintiff could have responded in part to defendant's discovery request without providing her tax returns. Civ. Proc. $ 2031.2203. She failed to do so and is abusing the discovery process. B. The UIM Transcript And Interrogatories Are Clearly Relevant For Purposes Of The Injuries Claimed And PlaintifPs Credibility 10 12 13 14 15 16 17 19 20 21 22 23 24 Plaintiff argues that "... defendants [do not) make any showing that a low speed rear end auto case that is now over 7.25 years old is reasonably related to a recent accident inside a chartered aircraft flying at 360 mph. On its face, there is precious little connection between a severe injury in in a high-speed aircraft and an aged low speed rear end auto accident on a city stteet, and defendants don't even try to overcome that lack of logic." (See Opposition at p. 5:14-18.) By this statement, clearly plaintiffs counsel did not read defendant's moving papers or any of the meet and confer exchanges. In defendant's motion, defendants clearly identified why the UIM documents, especially the UIM deposition transcript and interrogatories, are extremely relevant. Defendants stated in their motion that (1) Plaintiff alleges to have suffered injuries to her neck, head and other body parts as a result of this incident; (2) At the time of this incident, plaintiff was still receiving medical treatment for similar injuries she suffered in connection with her motor vehicle accident in April of 2014; (3) Plaintiff brought a UIM claim against her own insurer Farmers for the injuries suffered in the motor vehicle accident; (4) Plaintiffs UIM was claim was still pending at the time of the turbulence incident; and (5) Plaintiff admitted that many of the injuries she was still suffering from and receiving treatment for at the time of her April 2014 car accident were exacerbated by the turbulence incident. (See Defendant's Motion at p. 1:26-28; p. 2:1-4; p. 3:11-15; p. 5:6-10.) 25 26 27 28 Civ. Proc. I 2031.220: "A statement that the party to whom a demand for inspection, copying, testing, or sampling has been directed will comply with the particular demand shall state that the production, inspection, copying, testing, or sampling, and related activity demanded, will be allowed either in whole sr ia parr... "(emphasis added) 3 Defendants'eply in Support of Motion to Compel Further Responses Case No: CGC-20-584022 786257 Thus, plaintiffs argument is once again without merit. 1. The Court Reporter's Deposition Transcript In The UIM Matter Should Be Produced By Plaintiffs Counsel. 10 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 It is interesting that plaintiff argues defendant should just pay the court reporter to obtain plaintiffs deposition transcript from the UIM matter or defendant would be "stealing" the court reporter's work product. (See Opposition at p. 8:23-28; p. 9:1-19.) However, plaintiff also states that the parties would have to approve the release of the transcript before defendant could even obtain it from the court reporters and plaintiff rrfuseti to provide such approval. (See Hicks Decl. $ 3; Defendants'otion at p. 2:22-24.) Clearly plaintiff is trying to hide extremely pertinent discovery which could destroy her credibility and claims in this case. Why else would plaintiff and her attorney fight so hard to prevent the release of relevant, non-privileged information for the body parts at issue (hence not privileged) and claims for damages both made in the UIM matter and this current case which clearly apply to plaintiffs credibility? This is not a fishing expedition by Defendants who are merely seeking relevant and non-privileged documents within plaintiff's custody and control. Plaintiffs counsel argued that there was minimal relation between the two incidents. (See Hicks Decl. $ 5). Minimal still means relevant. Plaintiff cannot unilaterally decide something is only minimally relevant and use that as an excuse to prevent the disclosure of documents defendant is entitled to in this case. If it is truly minimally relevant and more prejudicial than probative, then plaintiff can seek to preclude that evidence at trial. Discovery is extremely broad and liberal and any relevance flows in favor of disclosure. "Under the Legislature's 'very liberal and flexible standard of relevancy,'ny 'doubts as to relevance should generally be resolved in favor of permitting discovery."'Wil/~arne v. SuPerior Court, 3 CaL 5th 531, 542 (2017), citing, Puerjtc Tel. & Te/ Co. v. Superior Court, 2 Cal.3d 161, 173 (1970).) Also, the articles plaintiff relies on to try to support the preclusion of producing her deposition transcript from the UIM matter are complete hearsays and no request for judicial 4 See Opposition at p. 9:1416. See footnotes 2 and 3 to Plaintiffs Opposition at page 9. 4 Defendants'eply in Support of Motion to Compel Further Responses Case No: CGC-20-584022 786257 notice was offered in support of those articles. Thus, the Court should ignore it. Plaintiff does not cite to one single case which would prevent the disclosure of her UIM deposition ttanscript to defendants. Lastly, once agan, plaintiff disingenuously argues that defendant can simply subpoena her UIM deposition transcript but failed to do so. (See Opposition at p. 9:19). Yet as we all know by now, plaintiffs counsel would object and force defendants to bring a motion just like the instant motion. Defendants seek to avoid wasting Court time with other motions by resolving this issue now with Defendants'urrent motion to compel. 2. UIM and Farmers does not have to be defined. 10 12 13 14 15 While plaintiff argues their objections to defendants'equested documents are with merit, plaintiff truly is scraping the bottom of the barrel when she argues that given defendant did not define UIM or Frets, that somehow shields plaintiff from having to produce documents. (See Opposition at p. 4:12-17; p. 8:7-16.) This argument is absurd. Plaintiff's counsel is fully aware what UIM means and is fully aware their client had a UIM dispute with Farmers over a 2014 car accident. This awareness is based on numerous meet and confer 17 19 20 21 22 23 efforts before defendants were forced to file their motion to compel. Not one time did plaintiff s counsel ask what UIM or Farmers meant, expressed confusion or the like with respect to xeference to UIM ot Farmers. If plaintiff's counsel was confused by UIM or Farmers, they could have objected based on vagueness, ambiguous, or the like. However, that still would not prevent the disclosure of the documents within plaintiffs custody and contxoL Even better, plaintiffs counsel could have met and conferred in good faith with defense counsel and sought clarification on what UIM matter defendants were referring to and what Farmers meant. 24 25 26 27 28 For plaintiffs counsel to claim ignorance with respect to the terms UIM and Farmers is completely disingenuous, a frivolous aryunent and a mediocre attempt to prevent providing defendants with the documents they are entitled to in order to fully evaluate plaintiffs claims for injuries and damages in this case. 5 Defendants'eply in Support oE Motion to Compel Further Responses Case No: CGC-20-584022 786257 Moreover, not one time did plaintiff s counsel state that the UIM claim was not with Farmerss, a very well-known insurance company. Thus, to try and claim that fact now in their opposition to defendant's motion to compel is basically an admission by plaintiffs counsel of gamesmanship and dishonesty throughout the meet and confer process. III. CONCLUSION Based on Defendants'otion, supporting papers and the reply herein, Defendants respectfully request that the Court issue an order compelling Plaintiff to provide further responses to Requests for Production of Documents, Set Two, and to produce the documents requested. 10 12 13 14 Dated: July 16, 2021 CODDINGTON, HICKS F56 DANFORTH raC'@sf'. W~ By: Jodie Steinberg, Esq. Attorneys for Defendants Wheels Up Partners, LLC and GAMA Aviation, LLC 15 16 17 18 19 20 21 22 23 24 27 28 See Opposition at p. 4:23-24. 6 Defendants'eply in Support of Motion to Compel Further Responses Case No: CGC-20-584022 786257 PROOF OF SERVICE California Code of Civil Procedure sections 1011, 1013, 1013a, 2015.5 California Rule of Court rule 2.251 Federal Rule of Civil Procedure Rule 5(b) I, the undersigned, declare that I am employed in the County of San Mateo, State of California. I am over the age of eighteen (18) years and not a party to the within action. My business address is 555 Twin Dolphin Drive, Suite 300, Redwood City, California 94065. My electronic mail address is sheri(Rchdlawvers.corn 10 12 I am readily familiar with my employer's business practice for collection and processing of correspondence and documents for mailing with the United States Postal Service, mailing via overnight delivery, transmission by facsimile machine, and delivery by hand. On July 16, 2021, I served a copy of each of the documents listed below by placing them for processing as indicated herein. 13 14 DEFENDANTS WHEELS UP PARTNERS, LLC AND GAMA AVIATION& LLC'S REPLY IN SUPPORT OF THEIR MOTION TO COMPEL FURTHER RESPONSES TO REQUESTS FOR PRODUCTION, SET TWO 15 16 17 United States Mail:The correspondence or documents were placed in sealed, labeled envelopes with postage thereon fully prepaid on the above date placed for collection and mailing at my place of business to be deposited with the U.S. Postal Service at Redwood City, California on this same date in the ordinary course of business. 18 19 20 21 23 24 25 27 28 Overnight Delivery: The correspondence or documents were placed in sealed, labeled packaging for overnight delivery, with Fedetal Express, with all charges to be paid by my employer on the above date for collection at my place of business to be deposited in a facility regularly maintained by the overnight delivery carrier, or delivered to a courier or driver authorized by the overnight delivery carrier to receive such packages, on this date in the ordinary course of business. Hand Delivery: The correspondence or documents were placed in sealed, labeled envelopes and served by personal delivery to the party or attorney indicated herein, or if upon attorney, by leaving the labeled envelopes with a receptionist or other person having charge of the attorney's office. Facsimile Transmission: The correspondence or documents were placed for transmission from (650) 592-5027 at Redwood City, California, and were transmitted to a facsimile machine maintained by the party or attorney to be served at the facsimile machine telephone number provided by said party or attorney, on this same date in the ordinary course of business. The transmission was reported as complete and without error, and a record of the transmission was properly issued by the transmitting facsimile machine. X Electronic Transmission: The conespondence or documents were transmitted electronically to the electronic address set forth below. State. The recipient has filed and served notice that he or she accepts electronic service; the recipient has electronically filed a document with the court; and/or the Court has mandated that the parties serve documents through its Court approved vendor. The printed form of this document bearing the original signature is on file and available for inspection at the request of the court or any party to the action or proceeding in which it is filed, in the manner provided in California Rule of Court Rufe 2.257(a). Federal. The recipient of this electronic service has consented to this method of service in writing, a copy of which is on file and available for inspection in my employer's office. I have received no indication the electronic transmission did not reach the recipient. 9 PERSONS OR PARTIES SERVED: 10 Attorneys for PlaintfBs 12 13 14 15 16 17 18 19 20 William E. Manning, Esq. Van De Poel, Levy, Thomas, Arneal LLP 1600 South Main Plaza, Suite 325 Walnut Creek, CA 94596 Telephone: (925) 934-6102 Facsimile: (925) 934-6060 wmanning&vanlem law.corn Assistant: IMstin L. Metier kmetler@vanlevvlaw.corn I certify (or declare) under penalty of perjury under the laws of the State of California that the foregoing is true and correct and that this declaration was executed on July 16, 2021. 21 22 Sheri Darbonne 23 24 25 Court; Superior Court ofCaiiforoia, Sau Fraueiseo Couuete Action No: CGC-20-584022 Case Name: Barr-Da5e o. Wbeeie Up, LLC 26 27 28