plaintiffs response to defendant raja anthony whitfield motion to stay

Cal. Super. - 1st Dist.June 8, 2021

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 1 PLAINTIFFS’ RESPONSE TO DEFENDANT RAJA ANTHONY WHITFIELD MOTION TO STAY - CASE NO. CGC-20-587460 RICHARD H. SCHOENBERGER (State Bar #122190) rschoenberger@walkuplawoffice.com SCOTT B. BAEZ (State Bar #330485) sbaez@walkuplawoffice.com ATTORNEYS FOR PLAINTIFFS YUMI BERMAN, SARAH CHIYOKO BERMAN, AND BRADLEY KAZUHIRO BERMAN, A MINOR, BY AND THROUGH HIS GUARDIAN AD LITEM YUMI BERMAN SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN FRANCISCO YUMI BERMAN, individually and as Successor-in-Interest to the Estate of MARK BERMAN, SARAH CHIYOKO BERMAN, and BRADLEY KAZUHIRO BERMAN, a minor, by and through his Guardian ad Litem, YUMI BERMAN. Plaintiffs, v. GETAROUND, INC., SAYED NAZIR ABBAS, RAJA ANTHONY WHITFIELD and DOES ONE through ONE HUNDRED, inclusive, Defendants. Case No. CGC-20-587460 PLAINTIFFS’ RESPONSE TO DEFENDANT RAJA ANTHONY WHITFIELD’S MOTION TO STAY THE INSTANT CIVIL MATTER INDEFINITELY OR, ALTERNATIVELY TO STAY THE MATTER AS TO DEFENDANT WHITFIELD ONLY Judge: Hon. Ethan P. Schulman Date: June 8, 2021 Time: 9:30 a.m. Dept.: 302 Date Filed: November 3, 2020 Trial Date: Unassigned I. INTRODUCTION Defendant Raja Anthony Whitfield was driving a vehicle obtained through defendant Getaround, Inc. when he struck and killed plaintiffs’ decedent, 50-year-old husband and father Mark Berman. Plaintiffs filed the instant civil case alleging various causes of action against Getaround, Mr. Whitfield, and the vehicle’s owner, Sayed Nazir Abbas, who has since been dismissed. The San Francisco District LAW OFFICES OF WALKUP, MELODIA, KELLY & SCHOENBERGER A PROFESSIONAL CORPORATION 650 CALIFORNIA STREET, 26TH FLOOR SAN FRANCISCO, CALIFORNIA 94108-2615 T: (415) 981-7210 · F: (415) 391-6965 ELECTRONICALLY F I L E D Superior Court of California, County of San Francisco 05/25/2021 Clerk of the Court BY: ERNALYN BURA Deputy Clerk 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 2 PLAINTIFFS’ RESPONSE TO DEFENDANT RAJA ANTHONY WHITFIELD MOTION TO STAY - CASE NO. CGC-20-587460 LAW OFFICES OF WALKUP, MELODIA, KELLY & SCHOENBERGER A PROFESSIONAL CORPORATION 650 CALIFORNIA STREET 26TH FLOOR SAN FRANCISCO, CA 94108 (415) 981-7210 Attorney subsequently charged Mr. Whitfield with felony vehicular manslaughter. He now moves on Fifth Amendment grounds either to stay all proceedings pending the disposition of the criminal case, or alternatively to stay the litigation as to himself only. Plaintiffs do not dispute Mr. Whitfield’s present right to invoke the Fifth Amendment in this civil case, and do not object to a stay as to Mr. Whitfield only. But there is no reasonable legal or factual basis to stay plaintiffs’ case against Getaround, an entity with no Fifth Amendment rights to protect. Indeed, the only reason to stay the entire case raised in the moving papers is that “Getaround does not wish to have the matter stayed as to Mr. Whitfield only.” (Memorandum of Points and Authorities in Support of Motion [“Motion”] at 4:19.) Contrarily, the interests of plaintiffs, this Court, and the general public in the dispensing of expeditious and efficient justice would be frustrated if plaintiffs were not permitted to proceed in their case against Getaround, and plaintiffs would be further prejudiced by the dangers that include, but are not limited to, loss of evidence resulting from unnecessary delay. (See, generally, Avant! Corp. v. Superior Court (2000) 79 Cal.App.4th 876.) Plaintiffs therefore only oppose this Motion to the extent that it requests a stay of the entire proceeding. II. FACTUAL BACKGROUND On August 11, 2020, decedent Mark Berman was lawfully walking his dog Yopi across Geary Boulevard at Gough Street in a marked crosswalk when defendant Raja Anthony Whitfield drove a Porsche SUV through a red light at speeds in excess of 80 miles per hour. Mr. Whitfield’s vehicle struck and launched Mr. Berman hundreds of feet through the air, killing him instantly. Yopi survived and was later reunited with plaintiffs, the surviving members of the Berman family. The Porsche SUV was owned by Sayed Nazir Abbas. However, defendant Getaround, Inc. had procured it from Mr. Abbas and provided and entrusted it to Mr. Whitfield prior to the crash. Plaintiffs subsequently filed suit raising various causes 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 3 PLAINTIFFS’ RESPONSE TO DEFENDANT RAJA ANTHONY WHITFIELD MOTION TO STAY - CASE NO. CGC-20-587460 LAW OFFICES OF WALKUP, MELODIA, KELLY & SCHOENBERGER A PROFESSIONAL CORPORATION 650 CALIFORNIA STREET 26TH FLOOR SAN FRANCISCO, CA 94108 (415) 981-7210 of action against Mr. Whitfield, Getaround, and Mr. Abbas. The case against Mr. Abbas was subsequently dismissed without prejudice. The San Francisco District Attorney also brought criminal charges against Mr. Whitfield, and the criminal matter apparently remains ongoing. No criminal charges related to this incident have been brought against Getaround. III. LEGAL ARGUMENT A. Plaintiffs Do Not Object to a Stay as to Defendant Raja Anthony Whitfield Only Plaintiffs do not oppose this Motion to the extent that it requests that the proceedings against Mr. Whitfield only be stayed pending resolution of his criminal case. Although simultaneous parallel civil and criminal proceedings are unobjectionable in the absence of substantial prejudice to the rights of the parties involved (see Keating v. Office of Thrift Supervision (9th Cir. 1995) 45 F.3d 322, 324), plaintiffs acknowledge that the civil case here does implicate Mr. Whitfield’s privilege against self-incrimination. Plaintiffs therefore prefer to simply stay their case against Mr. Whitfield rather than wasting time and resources fighting the merits of his expected Fifth Amendment challenges to any and all conceivable discovery requests. Notably, Mr. Whitfield’s Motion recognizes that all of his Fifth Amendment concerns will be satisfied if the case against him is stayed, and that plaintiffs would be prejudiced from a delay of the entire case. Indeed, the moving papers recognize that Mr. Whitfield’s privilege against self-incrimination will not be harmed if plaintiffs are allowed to prosecute their case against Getaround by developing evidence from other sources, including discovery obtained from Getaround and third- parties. (Motion at 9:8-15.) This Court should therefore stay the case as to Mr. Whitfield only, which will provide all of the relief requested by the Motion while alleviating the obvious burden that a total stay on the proceedings would cause plaintiffs. 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 4 PLAINTIFFS’ RESPONSE TO DEFENDANT RAJA ANTHONY WHITFIELD MOTION TO STAY - CASE NO. CGC-20-587460 LAW OFFICES OF WALKUP, MELODIA, KELLY & SCHOENBERGER A PROFESSIONAL CORPORATION 650 CALIFORNIA STREET 26TH FLOOR SAN FRANCISCO, CA 94108 (415) 981-7210 B. Defendant Getaround, Inc. Is Not Entitled to a Stay of the Entire Case The moving papers identify only one reason why a stay of the entire case should even be considered: “Getaround does not wish to have the matter stayed as to Mr. Whitfield only.” (Motion at 4:19.) For this reason alone, any request to stay the entire proceeding should be denied. Nonetheless, some discussion of the relevant interests of the parties is appropriate. The standard of review for a discovery orders is abuse of discretion. A trial court’s denial of a motion to stay discovery will not be disturbed unless it falls outside the bounds of reason. (See Avant! Corp., supra, 79 Cal.App.4th at 881.) The Avant! case provides the following factors that the Court must weigh in deciding a Motion to Stay: 1) The extent to which the defendant’s Fifth Amendment rights are implicated; 2) The interest of the plaintiffs in proceeding expeditiously with this litigation or any particular aspect of it, and the potential prejudice to plaintiffs of a delay; 3) The burden which any particular aspect of the proceedings may impose on the defendant; 4) The convenience of the court in the management of its cases, and the efficient use of judicial resources; 5) The interests of persons not parties to the civil litigation; and 6) The interest of the public in the pending civil and criminal litigation. (Avant!, supra, 79 Cal.App.4th at 882.) Plaintiffs contend that there is no reasonable interpretation of these factors under which Getaround would be entitled to a stay. 1. Getaround has no Fifth Amendment rights at stake. Getaround has not been charged with any crimes and therefore has no Fifth Amendment rights to invoke. Plaintiffs are therefore unquestionably entitled to 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 5 PLAINTIFFS’ RESPONSE TO DEFENDANT RAJA ANTHONY WHITFIELD MOTION TO STAY - CASE NO. CGC-20-587460 LAW OFFICES OF WALKUP, MELODIA, KELLY & SCHOENBERGER A PROFESSIONAL CORPORATION 650 CALIFORNIA STREET 26TH FLOOR SAN FRANCISCO, CA 94108 (415) 981-7210 prosecute their case by obtaining evidence from Getaround and third parties such that Mr. Whitfield’s rights will not be implicated. 2. Plaintiffs have a compelling interest in proceeding against Getaround and will be prejudiced by unnecessary delay. The Avant! court stated that “there is hardly a question of the interest of [the party opposing the stay] in proceeding expeditiously with this litigation or any particular aspect of it” and observed that granting a stay “would increase the danger of prejudice resulting from the loss of evidence, including the inability of witnesses to recall specific facts, or the possible death of a party.” (Avant!, 79 Cal.App.4th at 887.) Thus, prejudice to plaintiffs is presumed, and even acknowledged by the moving papers. (Motion at 9:8-10.) Through unreasonable delay and loss of evidence, a stay of the entire case would irreparably prejudice plaintiffs, a grieving family shattered by the loss of their husband and father. 3. Getaround will not be burdened in any way by a stay as to Mr. Whitfield only. While Getaround may prefer to indefinitely delay justice for harms they allegedly caused, there is no articulable burden to Getaround raised in the Motion. Indeed, discovery needed from plaintiffs, Getaround, and third parties to develop the factual record will have to be taken at some point and thus there is no harm to Getaround by proceeding. 4. Neither the Court nor the public are served by a stay of the entire case. The Court and the general public have an interest in expeditiously dispensing justice, which encourages parties to come to court to resolve their disputes. (Avant!, 79 Cal.App.4th at 887.) The Court’s interests are not served by placing this case at an indefinite standstill. The facts of this case are such that early settlement discussions may prove successful if plaintiffs are permitted to proceed with discovery surrounding the entrustment of the Porsche SUV and the specific policies and 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 6 PLAINTIFFS’ RESPONSE TO DEFENDANT RAJA ANTHONY WHITFIELD MOTION TO STAY - CASE NO. CGC-20-587460 LAW OFFICES OF WALKUP, MELODIA, KELLY & SCHOENBERGER A PROFESSIONAL CORPORATION 650 CALIFORNIA STREET 26TH FLOOR SAN FRANCISCO, CA 94108 (415) 981-7210 practices at Getaround. In contrast, a complete stay on civil discovery will likely prevent meaningful settlement talks indefinitely while Mr. Whitfield’s criminal case languishes for months or years. IV. CONCLUSION For the foregoing reasons, plaintiffs request that the Motion be granted to the extent that it seeks a stay against Mr. Whitfield only, and denied to the extent it seeks a stay of the entire matter. Dated: May 25, 2021 Walkup, Melodia, Kelly & Schoenberger By: RICHARD H. SCHOENBERGER SCOTT B. BAEZ Attorneys for Plaintiffs YUMI BERMAN, SARAH CHIYOKO BERMAN, AND BRADLEY KAZUHIRO BERMAN, A MINOR, BY AND THROUGH HIS GUARDIAN AD LITEM YUMI BERMAN 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 7 PLAINTIFFS’ RESPONSE TO DEFENDANT RAJA ANTHONY WHITFIELD MOTION TO STAY - CASE NO. CGC-20-587460 LAW OFFICES OF WALKUP, MELODIA, KELLY & SCHOENBERGER A PROFESSIONAL CORPORATION 650 CALIFORNIA STREET 26TH FLOOR SAN FRANCISCO, CA 94108 (415) 981-7210 PROOF OF SERVICE Berman v. Getaround, Inc., et al. Case No. CGC-20-587460 At the time of service, I was over 18 years of age and not a party to this action. I am employed in the county where the mailing took place. My business address is 650 California Street, 26th Floor, City and County of San Francisco, CA 94108-2615. On the date set forth below, I caused to be served true copies of the following document(s) described as: PLAINTIFFS’ RESPONSE TO DEFENDANT RAJA ANTHONY WHITFIELD’S MOTION TO STAY THE INSTANT CIVIL MATTER INDEFINITELY OR, ALTERNATIVELY TO STAY THE MATTER AS TO DEFENDANT WHITFIELD ONLY to: Charles T. Meyer, Esq. William D. Burger, Jr., Esq. Michelle Mehta, Esq. STRONGIN BURGER 999 Corporate Drive, Suite 220 Ladera Ranch, CA 92694 Attorneys for Defendants GETAROUND, INC. and SAYED NAZIR ABBAS P: (949) 529-2250 F: (949) 386-7253 E: cmeyer@stronginburger.com wburger@stronginburger.com mmehta@stronginburger.com vicki@stronginburger.com John T. Griffin, Esq. Edward J. Reid, Esq. HALL GRIFFIN 1851 East First Street, 10th Floor Santa Ana, CA 92705-4052 Attorneys for Defendant RAJA ANTHONY WHITFIELD P: (714) 918-7000 F: (714) 918-6996 E: jgriffin@hallgriffin.com ereid@hallgriffin.com bsanders@hallgriffin.com ONLY BY ELECTRONIC TRANSMISSION: Only by e-mailing the document(s) to the persons at the e-mail address(es) listed based CA Rules of Court, Emergency Rules Related to COVID-19, Emergency rule 12 “Electronic Service” and on notice provided on March 12, 2020 that, during the Coronavirus (COVID-19) pandemic, this office will be working remotely, not able to send physical mail as usual, and is therefore using only electronic mail. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on May 25, 2021, at Hayward, California. Laura Miranda