Hector Casillas v. Berkshire Hathaway Homestate Companies et al

NOTICE OF MOTION AND MOTION to Dismiss Case

C.D. Cal.October 31, 2016

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 THOMPSON COE & O’MEARA, LLP THOMPSON COE & O’MEARA, LLP Frances M. O’Meara, Esq. SBN 140600 Stephen M. Caine, Esq. SBN 119590 12100 Wilshire Boulevard, Suite 1200 Los Angeles, California 90025 Telephone: (310) 954-2400 Facsimile: (310) 954-2345 Attorneys for Defendant WILLIAM REYNOLDS UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA HECTOR CASILLAS, Plaintiff, vs. BERKSHIRE HATHAWAY HOMESTATE COMPANIES, a Nebraska Corporation; CYPRESS INSURANCE COMPANY, a California Corporation; ZENITH INSURANCE COMPANY, a California Corporation; BROADSPIRE CLAIMS SERVICES, a New York Corporation; KNOX RICKSEN, LLP, a California Limited Liability Partnership; ERIC DANOWITZ, an individual; DANIEL SHARP, an individual; WILLIAM REYNOLDS, an individual; OLIVER GLOVER, an individual; RUSSELL CHING, an individual; STELLA MENDOZA, and individual; and DOES 1 to 10, inclusive, Defendants. Case No: 2:15-cv-04763-AG (JEMx) [Assigned to: Hon. Andrew J. Guilford, Crtrm 10D – Santa Ana] DEFENDANT WILLIAM REYNOLDS’ NOTICE OF MOTION AND MOTION TO DISMISS THE THIRD AMENDED COMPLAINT; NOTICE OF JOINDER IN CO- DEFENDANTS’ MOTIONS TO DISMISS THE THIRD AMENDED COMPLAINT; MEMORANDUM OF POINTS & AUTHORITIES [Fed.R.Civ.Proc. 12(b)(1), 12(b)(6)] Date: November 28, 2016 Time: 10:00 a.m. Crtrm: 10D – Santa Ana Complaint filed: 06/23/2015 TO ALL PARTIES AND TO THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that at 10:00 am on November 28, 2016, or as soon thereafter as this matter may be heard in Courtroom 10-D of the above- referenced Court, located at 751 W. Santa Ana Blvd., Santa Ana, CA 92701, Defendant William Reynolds will present a motion to dismiss the Third Amended Complaint in this matter (“TAC”) pursuant to F.R.Civ.Proc. 12(b)(1) and 12(b)(6). _____________________________________________________________________________________________ Defendant. Reynolds’ Motion to Dismiss TAC 15-cv-04763 AG (JEMx) i Case 2:15-cv-04763-AG-JEM Document 195 Filed 10/31/16 Page 1 of 22 Page ID #:2827 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 THOMPSON COE & O’MEARA, LLP This motion to dismiss the TAC pursuant to Rule 12 (b)(1) is made upon the ground that this Court is without subject matter jurisdiction because Mr. Casillas has not met his burden of establishing Article III standing to sue Mr. Reynolds or his alleged (former) employer. This motion to dismiss the TAC pursuant to Rule 12(b)(6) is made upon the ground that the TAC fails to state facts sufficient to state a claim for relief against Mr. Reynolds for violation of each or any of the causes of action now pleaded in the TAC against Mr. Reynolds: (1) “Trespass Against Chattels,” (2) “Violation of California Confidentiality of Medical Information Act, Cal. Civil Code § 56, et seq.,” and/or (3) “Violation of the Stored Communications Act, 18 U.S.C. §§ 2701, et seq.” This motion will be and is based upon this notice, the memorandum of points and authorities attached hereto, the TAC and its exhibits, the pleadings and papers on file herein, and upon the whatever argument is allowed at the hearing of this matter. Further, Defendant William Reynolds gives notice, and hereby does, join in and incorporate by this reference the arguments and points & authorities in the motions to dismiss pursuant to Fed.R.Civ.Proc. 12(b)(1) and 12(b)(6) filed by the co-defendants in this matter, which are noticed to be heard concurrently. This motion is made following the conference of counsel pursuant to Local Rule 7-3 on October 24, 2016. _____________________________________________________________________________________________ Defendant. Reynolds’ Motion to Dismiss TAC 15-cv-04763 AG (JEMx) ii Case 2:15-cv-04763-AG-JEM Document 195 Filed 10/31/16 Page 2 of 22 Page ID #:2828 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 THOMPSON COE & O’MEARA, LLP DATED: October 31, 2016 THOMPSON COE & O’MEARA, LLP By: / X / Stephen Caine Frances O’Meara, Esq. Stephen M. Caine, Esq. ATTORNEY FOR DEFENDANT WILLIAM REYNOLDS _____________________________________________________________________________________________ Defendant. Reynolds’ Motion to Dismiss TAC 15-cv-04763 AG (JEMx) iii Case 2:15-cv-04763-AG-JEM Document 195 Filed 10/31/16 Page 3 of 22 Page ID #:2829 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 THOMPSON COE & O’MEARA, LLP TABLE OF CONTENTS Page I. The Allegations in the Third Amended Complaint ....................................... 1 A. Plaintiff’s Underlying Workers’ Compensation Claim, and His Filing, in the Public Record, All the “Private” Identifying and Other Data He Now Claims Defendants Should Not Have Seen. ....................................................................... 1 B. The Changing Story on How and When the Plaintiff’s “In-Take Packet” on HQSU Was Obtained. ....................................... 3 C. Plaintiff’s Workers’ Compensation Case is Resolved, With No Allegation or Evidence that Any Different Result Would Have Been Entered But For the Alleged “Hacking” of HQSU. ........................................................................... 6 II. JOINDER IN ARGUMENTS REGARDING THE ABSENCE OF ALLEGATIONS ESTABLISHING DAMAGE. .................................... 7 LEGAL ARGUMENTS ......................................................................................... 7 III. The First Cause of Action, for “Trespass to Chattels,” Alleges No Cause of Action Applicable to Mr. Reynolds. ........................................ 7 IV. The Second Cause of Action, for Violation of the California Confidentiality of Medical Information Act, is Inapplicable to Mr. Reynolds. ................................................................................................ 8 V. The Third Cause of Action, for Violation of the Stored Communications Act, Fails to Plead That This Case Falls Within Its Standards, or That Actual Damages Occurred. ........................ 111 A. HQSU’s Web Site Does Is Not a Provider of Electronic Communications as Contemplated in the SCA. ................................ 11 B. A Civil Claim for Violation of the SCA, Like the Other Two Causes of Action, Requires Actual Damage, and the Record Establishes None. ............................................................ 11 VI. Conclusion. ................................................................................................... 16 _____________________________________________________________________________________________ Defendant. Reynolds’ Motion to Dismiss TAC 15-cv-04763 AG (JEMx) iv Case 2:15-cv-04763-AG-JEM Document 195 Filed 10/31/16 Page 4 of 22 Page ID #:2830 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 THOMPSON COE & O’MEARA, LLP TABLE OF AUTHORITIES Federal Cases Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) .................................................................................................................. 16 Cornerstone Consultants, Inc. v. Prod. Input Solutions, LLC, (N.D.Ia.2011) 789 F.Supp.2d 1029 ........................................................................................... 12 Crowley v. Cybersource Corp., 166 F. Supp. 2d 1263 (N.D. Cal. 2001) .................................................................................... 11 Ewiz Express Corp. v. Ma Laboratories, Inc., (N.D. Cal., Sept. 28, 2015, No. 15-CV-01213-LHK) 2015 WL 5680904 ................................ 12 Sears v. County of Monterey, (N.D. Cal., Feb. 3, 2012, No. C 11-01876 SBA) 2012 WL 368688 ......................................... 12 Van Alstyne v. Electronic Scriptorium, Ltd., (4th Cir. 2009) 560 F.3d 199 ..................................................................................................... 12 Williams v. City of Alameda, (N.D. Cal. 2014) 26 F. Supp.3d 925 .......................................................................................... 5 State Cases Charles J. Vacanti, M.D., Inc. v. State Comp. Ins. Fund, (2001) 24 Cal.4th 800 ............................................................................................................ 2, 15 In re Complex Asbestos Litigation, (1991) 232 Cal.App.3d 572 ................................................................................................. 14, 15 Intel Corp. v. Hamidi, (2003) 30 Cal.4th 1342 ................................................................................................................ 8 Privette v. Superior Court, (1993) 5 Cal.4th 689 .................................................................................................................. 15 Federal Statutes 18 U.S.C. § 2510(15) .................................................................................................................... 11 18 U.S.C. § 2701(a) ...................................................................................................................... 11 18 U.S.C. § 2707 ........................................................................................................................... 12 _____________________________________________________________________________________________ Defendant. Reynolds’ Motion to Dismiss TAC 15-cv-04763 AG (JEMx) v Case 2:15-cv-04763-AG-JEM Document 195 Filed 10/31/16 Page 5 of 22 Page ID #:2831 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 THOMPSON COE & O’MEARA, LLP 18 U.S.C. § 2707(c) ...................................................................................................................... 12 18 U.S.C. §§ 2701 ........................................................................................................................ 11 California State Statutes Bus. & Prof. Code § 6151(a) .......................................................................................................... 9 Bus. & Prof. Code § 6154 ............................................................................................................... 9 Bus. & Prof. Code § 6155 .............................................................................................................. 9 Bus. & Prof. Code § 6156 ............................................................................................................... 9 Civil Code § 56 ................................................................................................................... 2, 11, 12 Civil Code § 56.05 ........................................................................................................................ 12 Civil Code § 56.06 ........................................................................................................................ 12 Civil Code § 56.06(a) .................................................................................................................... 13 Civil Code § 56.30 ........................................................................................................................ 13 Civil Code § 56.30(f) .................................................................................................................... 13 Civil Code § 56.101 ...................................................................................................................... 12 Labor Code § 3850(b) ............................................................................................................... 5, 14 Labor Code § 4603.2 ................................................................................................................... 18 Labor Code § 4622 ....................................................................................................................... 18 Labor Code § 5814........................................................................................................................ 18 Federal Rules F.R.Civ.Proc. 12(b)(1) ............................................................................................................. 7, 16 Fed.R.Civ.Proc. 12(b) (6) ......................................................................................................... 7, 16 California State Rules Rules of Prof. Conduct, rule 1-320 ................................................................................................. 6 _____________________________________________________________________________________________ Defendant. Reynolds’ Motion to Dismiss TAC 15-cv-04763 AG (JEMx) vi Case 2:15-cv-04763-AG-JEM Document 195 Filed 10/31/16 Page 6 of 22 Page ID #:2832 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 THOMPSON COE & O’MEARA, LLP I. The Allegations in the Third Amended Complaint The Third Amended Complaint (“TAC,” at Doc. 187) succeeds in reducing the causes of action from 11 (in the Second Amended Complaint (“SAC”), Doc. 152) to three. But the factual allegations have been modified only somewhat, and not in a fashion that addresses the concerns voiced by this Court while granting the Defendants’ previous motions to dismiss with leave to amend. In the previous motions to dismiss, this Court found that the allegations did not outline actionable causes of action or any legally cognizable damages. Those conclusions are not addressed in a meaningful fashion by this amendment. As the TAC is the Plaintiff’s fourth attempt to state his claims, and since those claims have not evolved into anything that avoids the problems pointed out by Defendants over and over, this motion to dismiss should be granted without leave to amend. A. Plaintiff’s Underlying Workers’ Compensation Claim, and His Filing, in the Public Record, All the “Private” Identifying and Other Data He Now Claims Defendants Should Not Have Seen. Plaintiff was an applicant in an underlying worker's compensation case (TAC ¶ 23): Casillas v. Xerxes Corp; Broadspire Claims Services, WCAB No. ADJ903073. His counsel was the firm of Reyes & Barsoum, LLP. (TAC ¶¶ 3, 25.) The defense counsel was Knox Ricksen, LLP (TAC ¶ 23). (Knox Ricksen, LLP was a defendant in this lawsuit. It was dismissed by stipulation in February 2016. (See, Doc. 120, 136.)) Mr. Reynolds is alleged to have been an investigator employed “at one time” by Berkshire Hathaway (“BHHC”). (TAC ¶ 8.) In fact, Mr. Reynolds was employed by Oak River Insurance Co. (an affiliate of BHHC) until about April 10, 2012. (Doc. 59, ¶ 5 (Declaration of William Reynolds).) He was employed as an outside investigator by Knox Ricksen at the time of the Casillas v. Xerxes claim. _____________________________________________________________________________________________ Defendant. Reynolds’ Motion to Dismiss TAC 15-cv-04763 AG (JEMx) 1 Case 2:15-cv-04763-AG-JEM Document 195 Filed 10/31/16 Page 7 of 22 Page ID #:2833 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 THOMPSON COE & O’MEARA, LLP (Doc. 161, p. 4; Doc. 52, ¶ 5 (Declaration of Knox Ricksen attorney Eric Danowitz).) Therefore, for all times relevant to Casillas v. Xerxes, Mr. Reynolds was the agent of Knox Ricksen, which in turn was the agent of the insurer that would defend and pay Mr. Casillas’ workers’ compensation claim. (See, Cal. Labor Code § 3850(b), construed in Charles J. Vacanti, M.D., Inc. v. State Comp. Ins. Fund (2001) 24 Cal.4th 800, 813 (in the workers’ compensation statutory scheme, “the term ‘employer’ [is defined] to include ‘insurer’” and its agents).) Casillas v. Xerxes was initiated by Mr. Casillas filing his “Application for Adjudication of Claim” with the WCAB on July 31, 2013. (See, RJN Exh. 1.) The form attached as Exhibit A hereto are the completed version of the identical form that is claimed to be “private” and “confidential” as part of the “in-take” package Mr. Casillas allegedly processed through the web site of HQ Sign Up Services, Inc. (“HQSU”). (See, TAC ¶¶ 16-17, 28, and TAC Exh. A, at “Document 187-1,” pp. “4 of 22” – “8 of 22” therein.) Those forms – completely unredacted – are available to the public in the WCAB file for Casillas v. Xerxes. They contain all the information he now claims was “private” or “confidential,” including his medical complaints and all his personal identifying information, such as address, date of birth, Social Security number, and more. Mr. Casillas and his counsel put that information into the public domain – not Mr. Reynolds. The SAC provided no explanation of what information was contained in the “in-take packet” that would supposedly be confidential or privileged. With the TAC, redacted versions of those documents are now attached as exhibits. By attaching photocopies of the “in-take packet” documents as exhibits, the TAC reveals that, in fact, the supposedly “confidential” or “private” information they contain was all revealed by Mr. Casillas voluntarily in Casillas v. Xerxes. This undermines Mr. Casillas’ claim that this information was truly confidential, and that he could somehow have been “damaged” by the revelation of matters he _____________________________________________________________________________________________ Defendant. Reynolds’ Motion to Dismiss TAC 15-cv-04763 AG (JEMx) 2 Case 2:15-cv-04763-AG-JEM Document 195 Filed 10/31/16 Page 8 of 22 Page ID #:2834 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 THOMPSON COE & O’MEARA, LLP already made available publicly by placing it in the public file for his WCAB claim. To be sure: the photocopy of these forms attached at Mr. Reynolds’ Request for Judicial Notice Exh. 1 are redacted only to comply with the Local Rules requiring removal of personal identifying information from filed documents. The originals of those documents, publicly available from the WCAB to anyone willing to pay the photocopy fee, are not redacted. Mr. Casillas filed that information with the WCAB, revealing voluntarily and publicly his medical claims, salary, address, Social Security number, date of birth, and other so-called “confidential” information. He cannot plausibly seek damages from the defendants for somehow possessing information he provided to voluntarily to his workers’ compensation insurer and its agents (including Mr. Reynolds) as part of his workers’ compensation claim, and which literally anyone can see in the WCAB file. In fact, those forms, and that identifying information, are routinely provided to any workers’ compensation insurer and counsel as part of the normal process of administering a workers’ compensation claim. It must be presumed that Mr. Casillas, and his underlying counsel, filled out those official WCAB forms, and provided that information, as part of the normal workers’ compensation process. Yet Mr. Casillas now decries the fact that Mr. Reynolds, previously alleged to have been an investigator employed by counsel for the workers’ compensation insurer who handled his claim, somehow saw the exact forms Mr. Casillas himself filed. (See, TAC ¶¶ 28-29.) B. The Changing Story on How and When the Plaintiff’s “In-Take Packet” on HQSU Was Obtained. Relevant to Mr. Reynolds, the TAC makes a significant and unexplained revision of when or how the documents from the HQSU web site were obtained. Up to and in the Second Amended Complaint, Mr. Casillas alleged that the _____________________________________________________________________________________________ Defendant. Reynolds’ Motion to Dismiss TAC 15-cv-04763 AG (JEMx) 3 Case 2:15-cv-04763-AG-JEM Document 195 Filed 10/31/16 Page 9 of 22 Page ID #:2835 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 THOMPSON COE & O’MEARA, LLP defendants obtained the “in-take” sheets from the HQSU web site as shown in a video recorded in February 2013 showing Mr. Reynolds going through keystrokes on a Google search.1 (See, SAC Doc. 152, ¶¶ 41-42.) Mr. Casillas alleged plainly: “The video clearly displays the illegal cyberattack, which Plaintiff’s experts have identified as a directory traversal attack. …” (SAC, Doc. 152, ¶ 42.) In support of this allegation, in opposition to Knox Ricksen’s and Mr. Reynolds’ earlier anti-SLAPP special motion to strike (Knox Ricksen’s anti- SLAPP at Docket Nos. 47-53, 68-70, 108; Reynolds’ anti-SLAPP at Docket nos. 58-59, 110), Mr. Casillas went so far as to submit a declaration of a supposed expert, Mr. Terence Fisher. (See, Doc. 134.) He declared that he saw “hacking” on the video (even though the video seems to show no such thing): The entry into this site was what is commonly referred to as “hacking” in my profession. The user circumvented a technical design that functioned as a barrier to less sophisticated intruders but the user was able to determine a method to circumvent that barrier. [Doc. 134, ¶7.] In opposition to the defendants’ motions to dismiss the SAC, Mr. Fisher recanted this declaration. Contrary to his earlier declaration (Doc. 134), Mr. Fisher proffered that the video does not show “hacking” at all: It is also my opinion that the video made by William Reynolds does not depict the actual method of hacking initially used to illegally enter the site. I believe the video was made to make it appear that the documents were in the public domain. [Doc. 170, ¶12 (emphasis added).] 1 The video was submitted to this Court as part of Mr. Reynolds’ and Knox Ricksen’s earlier anti-SLAPP motion to strike. (See, Doc. 68.) The video shows Mr. Reynolds finding the HQSU web site through a simple Google search, and then clicking through to “in-take packets” without having to enter any password or evade any other security. (See, Doc. 52, ¶¶ 5-6 (Danowitz Declaration).) _____________________________________________________________________________________________ Defendant. Reynolds’ Motion to Dismiss TAC 15-cv-04763 AG (JEMx) 4 Case 2:15-cv-04763-AG-JEM Document 195 Filed 10/31/16 Page 10 of 22 Page ID #:2836 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 THOMPSON COE & O’MEARA, LLP Mr. Fisher opined that the “hacking” must have taken place earlier, “sometime in 2012 and remained open thereafter until HQSU became aware of it and closed it (assuming they did so).”2 (Doc. 170, ¶11.) By his later declaration (Doc. 170), Mr. Fisher effectively disavowed his earlier declaration that the video did show “hacking.” Identically, his later declaration contradicted the SAC’s allegation of when and how the HQSU web site was supposedly “hacked.” In the TAC, Mr. Casillas provides no explanation of why the SAC’s allegation that the “hacking” occurred in late January/February 2013, as recorded by Mr. Reynolds (and declared by Mr. Fisher at Doc. 134, ¶7), is compatible with the TAC’s vague allegation that the hacking occurred much earlier, some time in 2012 or even before that. (See, TAC ¶¶ 19-20.) Without an adequate explanation for the contradictory allegation, the earlier, contradictory allegation remains as a pleading admission. (Williams v. City of Alameda (N.D. Cal. 2014) 26 F. Supp.3d 925, 936.) 2 This statement by Mr. Fisher was apparently added to address the revelation that Alameda County District Attorney’s investigator J.P. Williams declared in May 2013 that he, too, was able to access the HQSU web site without encountering password or other security measures. (See, Doc. 53, pp. 26-28 therein (at Caine Dec. Exh. D).) The declaration was filed to support a search warrant in an ongoing criminal investigation of an illegal conspiracy regarding capping, steering and medical billing fraud in workers’ compensation claims involving HQ Sign Up Services, Inc., and various medical clinics, doctors and lawyers – including Mr. Casillas’. “I immediately realized that the operator of the website had not installed any type of password protection. It was clear that this website was accessible to anyone. … Within minutes … I discovered numerous suspected fraudulent sign- up sheets.” (Doc. 53, p. 27, second paragraph.) A search warrant was issued based on that declaration. _____________________________________________________________________________________________ Defendant. Reynolds’ Motion to Dismiss TAC 15-cv-04763 AG (JEMx) 5 Case 2:15-cv-04763-AG-JEM Document 195 Filed 10/31/16 Page 11 of 22 Page ID #:2837 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 THOMPSON COE & O’MEARA, LLP The TAC now alleges that the “hacking” took place some undefined time before the videotape of Mr. Reynolds was prepared in early February 2013. It is also coy as to the relationship of the insurer defendants. Previously, in the SAC, Mr. Casillas alleged that former defendant “Broadspire [Services Inc.] was Plaintiffs worker’s compensation insurer and had possession of his intake packet.” (SAC ¶ 34.) Now, the TAC alleges only that Knox Ricksen, LLP, the defense counsel in Casillas v. Xerxes, “represents BHHC and Cypress, among other insurers.” (TAC ¶ 23.) The insurer defendants are alleged broadly to have “conspired” with each other and other insurers to distribute HQSU’s data to “others for use against workers’ compensation plaintiffs in litigation.” (TAC ¶ 24.) C. Plaintiff’s Workers’ Compensation Case is Resolved, With No Allegation or Evidence that Any Different Result Would Have Been Entered But For the Alleged “Hacking” of HQSU. In Casillas v. Xerxes, defense counsel, Knox Ricksen, LLP, raised numerous arguments that HQSU was not a legal “attorney referral service,” as alleged in the TAC. Instead, it was an illegal “capping” scheme, in violation of California law.3 (See, among others, Cal. Bus. & Prof. Code §§ 6155, 6156; Rules of Prof. Conduct, rule 1-320.) The WCAB agreed that Knox Ricksen’s concern that evidence of payments being made by counsel to HQSU to have it steer clients to counsel gave rise to “a legitimate concern regarding running, capping and steering.” (Doc. 43, p. 78.) 3 A runner or capper is any person, firm, association or corporation acting for consideration in any manner or in any capacity as an agent for an attorney at law or law firm ….” (Bus. & Prof. Code § 6151(a).) “Any contract for professional services secured by any attorney at law or law firm in this state through the services of a runner or capper is void.” (Bus. & Prof. Code § 6154.) _____________________________________________________________________________________________ Defendant. Reynolds’ Motion to Dismiss TAC 15-cv-04763 AG (JEMx) 6 Case 2:15-cv-04763-AG-JEM Document 195 Filed 10/31/16 Page 12 of 22 Page ID #:2838 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 THOMPSON COE & O’MEARA, LLP However, in ruling on motions arising from defendant’s efforts to compel depositions of persons concerning HQSU’s practices, the WCAB ruled that “[t]his is not the forum for that determination and an inquiry into those matters is unlikely to result in evidence which is relevant to applicant’s claim.” (Id.) Understandably, defense counsel in Casillas v. Xerxes disagreed with the notion that insurance or workers’ compensation fraud was not “relevant.” Regardless, in a further order, the WCAB rejected a concurrent motion to disqualify Knox Ricksen as defense counsel due to its possessing the “in-take sheet.” (RJN Exh. 2.) The WCAB ordered simply that Knox Ricksen not use that information in its defense of the claim. Casillas v. Xerxes was then resolved. The TAC contains no allegation that Knox Ricksen did not comply with that order, or that the amount of the settlement was in any way impaired. II. JOINDER IN ARGUMENTS REGARDING THE ABSENCE OF ALLEGATIONS ESTABLISHING DAMAGE. Defendant William Reynolds joins in the co-defendants’ arguments regarding lack of standing under Fed.R.Civ.Proc. 12(b)(1), and also the lack of any cogent pleading of proximate causation of harm and actual harm under Rule 12(b)(6). As argued well in their motion to dismiss, there is little or nothing new pleaded in the TAC to establish subject matter jurisdiction or an adequate pleading of the required elements of the causes of action. LEGAL ARGUMENTS III. The First Cause of Action, for “Trespass to Chattels,” Alleges No Cause of Action Applicable to Mr. Reynolds. The TAC alleges that Mr. Casillas’ medical and claim data regarding his workers’ compensation action was improperly downloaded from the computers of HQ Sign-Up Services (“HQSU”). That data was then used for vaguely alleged _____________________________________________________________________________________________ Defendant. Reynolds’ Motion to Dismiss TAC 15-cv-04763 AG (JEMx) 7 Case 2:15-cv-04763-AG-JEM Document 195 Filed 10/31/16 Page 13 of 22 Page ID #:2839 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 THOMPSON COE & O’MEARA, LLP “improper” purposes in Mr. Casillas’ underlying workers’ compensation case. The common-law tort of “trespass to chattels” does not apply to these allegations. There is no allegation that HQSU’s computer was in any way physically touched, moved or damaged through the vague “hacking” allegations in the TAC. These allegations do not meet the requirement that there be actual interference with “possession” of a physical “chattel.” Under California law, computer databases do not fit this definition unless they are damaged or impaired. (Intel Corp. v. Hamidi (2003) 30 Cal.4th 1342, 1356, 1360 (citing numerous federal opinions as well).) Further, and more to the point, the TAC alleges plainly that the computer server containing the data belonged to HQSU, not Mr. Casillas. (TAC ¶ 15.) Or, conceivably, to the extent the TAC alleges that Mr. Casillas’ workers’ compensation counsel, Reyes & Barsoum, LLP, directed him to use HQSU’s web site, the data belonged to Reyes & Barsoum. Therefore, assuming wrongly that the electronic data on the HQSU web site was a “chattel” at all, the alleged “trespass” to it occurred as against HQSU, or perhaps Reyes & Barsoum – not Mr. Casillas. Only the owner of the “chattel” holds a cause of action for trespass to it. (Intel Corp., supra, 30 Cal.4th at 1342.) For either or both of the two reasons outlined above, no cause of action for “trespass to chattels” is stated as against Mr. Reynolds, or against any of the defendants. IV. The Second Cause of Action, for Violation of the California Confidentiality of Medical Information Act, is Inapplicable to Mr. Reynolds. No cause of action is stated, or can be stated, against Mr. Reynolds for alleged violation of the California Confidentiality of Medical Information Act (“CMIA”), at Cal. Civil Code §§ 56, et seq., for at least two separate reasons. First, by its own terms, the CMIA does not create any duty on the part of _____________________________________________________________________________________________ Defendant. Reynolds’ Motion to Dismiss TAC 15-cv-04763 AG (JEMx) 8 Case 2:15-cv-04763-AG-JEM Document 195 Filed 10/31/16 Page 14 of 22 Page ID #:2840 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 THOMPSON COE & O’MEARA, LLP Mr. Reynolds that he could then be capable of breaching. Instead, the CMIA creates a duty applicable only to defined entities, such as health care providers or related organizations, to protect health care information. (See, Civil Code § 56.101.) Defined entities include “health care service plan,” “licensed health care professional,” “pharmaceutical company,” or “provider of health care” to assure the security of “patient’s” medical records. (Civil Code § 56.05.) Civil Code § 56.06 extends the CMIA to “[a]ny business organized for the purpose of maintaining medical information” or “that offers software or hardware to consumers … to maintain medical information ….” Mr. Reynolds clearly does not fit within any of the statutory definitions of entities to which the CMIA applies. The TAC does not even attempt to suggest that he fits within any of the statutory definitions. (See, TAC ¶ 41.) Accordingly, Mr. Casillas makes no effort to allege that Mr. Reynolds owed any duty under Civil Code §§ 56, et seq. He is simply not subject to the CMIA. Instead, Mr. Casillas alleges that the computer server involved belonged to HQSU, and that HQSU owed him a duty to assure the confidentiality of his records under the CMIA. (TAC ¶¶15-17, 25.) Upon that basis, Mr. Casillas alleges that HQSU had a duty under the CMIA. (TAC ¶ 41.) Mr. Reynolds does not agree or concede that HQSU fits any of the definitions of entities to which the CMIA applies. It is, or was, an illegal capping scheme. Regardless, to try to bring Mr. Reynolds within the ambit of the CMIA, Mr. Casillas instead pleads, in conclusory fashion, that Mr. Reynolds bears liability under the CMIA through his liability under the previous cause of action for “trespass to chattels,” and that this “conduct” was a “substantial factor” in HQSU’s violation of the CMIA. (TAC ¶ 43.) There is no legal authority supporting the notion that a non- “provider” can bear vicarious liability under the CMIA. Cal. Civil Code §§ 56.05 and 56.06 contain finite definitions of the medical providers that can be subject to the CMIA. And there is certainly no allegation that Mr. _____________________________________________________________________________________________ Defendant. Reynolds’ Motion to Dismiss TAC 15-cv-04763 AG (JEMx) 9 Case 2:15-cv-04763-AG-JEM Document 195 Filed 10/31/16 Page 15 of 22 Page ID #:2841 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 THOMPSON COE & O’MEARA, LLP Reynolds or the other defendants were in a “conspiracy” with HQSU.4 Under any theory, Mr. Reynolds cannot be liable for any alleged “breach” of a duty he did not owe. Further, HQSU does not appear to qualify as a “provider” under any of the statutory definitions. Even under Plaintiff’s effort to whitewash HQSU’s business, as described in the TAC HQSU did not provide information to or from health care providers. That is a requirement for a “provider” under the CMIA. (Civil Code § 56.06(a).) HQSU provided data only for lawyers. Second, even assuming that Mr. Reynolds and/or HQSU are subject to the CMIA, Cal. Civil Code § 56.30(f)5 specifically excludes from its coverage medical information kept or exchanged for purposes of Workers’ Compensation claims. The TAC alleges that Mr. Casillas’ “medical information” obtained from HQSU was maintained by HQSU expressly for purposes of his underlying workers’ compensation claim. The TAC alleges that Knox Ricksen was the insurer’s defense counsel. Mr. Reynolds was its agent, and thus was the sub-agent of the 4 It bears repeating that a default has already been entered against HQSU in this action. Liability against HQSU for its own alleged actions does not hinge on anything alleged against any co-defendant. 5 Cal. Civil Code § 56.30 states: The disclosure and use of the following medical information shall not be subject to the limitations of this part: … (f) (Industrial accidents) Information and records acquired, maintained, or disclosed pursuant to Division 1 (commencing with Section 50), Division 4 (commencing with Section 3200), Division 4.5 (commencing with Section 6100), and Division 4.7 (commencing with Section 6200) of the Labor Code. California’s Workers’ Compensation statutory scheme is contained in “Division 4” of the Civil Code, as referenced in subd. (f) above. _____________________________________________________________________________________________ Defendant. Reynolds’ Motion to Dismiss TAC 15-cv-04763 AG (JEMx) 10 Case 2:15-cv-04763-AG-JEM Document 195 Filed 10/31/16 Page 16 of 22 Page ID #:2842 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 THOMPSON COE & O’MEARA, LLP insurer. (See, Labor Code § 3850(b).) The CMIA’s exclusion for workers’ compensation claims applies. V. The Third Cause of Action, for Violation of the Stored Communications Act, Fails to Plead That This Case Falls Within Its Standards, or That Actual Damages Occurred. A. HQSU’s Web Site Does Is Not a Provider of Electronic Communications as Contemplated in the SCA. The SCA, at 18 U.S.C. § 2701(a), bars efforts to interfere with any “facility through which an electronic communication service is provided.” This is defined as any service that provides its user with “the ability to send or receive wire or electronic communications.” It applies to entities such as email providers, internet service providers (i.e., web site providers, known as “ISPs”), and other entities that exist to facilitate communications. (See, 18 U.S.C. § 2510(15).) HQSU, as pleaded, is not an ISP. It merely acts as a kind of clearing house for lawyers to obtain their client’s paperwork. (See, TAC ¶¶ 17-18.) It does not purport to be an email provider or ISP. Merely allowing communication through a web site does not make that entity an “electronic communication service” under 18 U.S.C. § 2701(a). (Compare, Crowley v. Cybersource Corp., 166 F. Supp. 2d 1263, 1270-1271 (N.D. Cal. 2001) (for purposes of the SCA, retail Internet web sites are not ISPs even though customers can communicate to the retailer through a web site).) B. A Civil Claim for Violation of the SCA, Like the Other Two Causes of Action, Requires Actual Damage, and the Record Establishes None. The federal Stored Communications Act (“SCA”), at 18 U.S.C. §§ 2701, et seq., provides no basis for liability because the record and the allegations against Mr. Reynolds establish that he did not cause Mr. Casillas any legally cognizable _____________________________________________________________________________________________ Defendant. Reynolds’ Motion to Dismiss TAC 15-cv-04763 AG (JEMx) 11 Case 2:15-cv-04763-AG-JEM Document 195 Filed 10/31/16 Page 17 of 22 Page ID #:2843 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 THOMPSON COE & O’MEARA, LLP damage. Without actual damage, there can be no liability under the SCA – even for the $1,000 statutory penalty in that statutory scheme. The elements to a civil claim under the SCA are: (1) defendant intentionally accessed a facility through which an electronic communications service is provided; (2) such access was not authorized or intentionally exceeded any authorization by the person or entity providing the electronic communications service, the user of that service with respect to a communication of or intended for that user, or a federal statute; (3) defendant thereby obtained, altered, or prevented authorized access to an electronic communication while it was in electronic storage in such system; and (4) the defendant's unauthorized access or access in excess of authorization caused actual harm to the plaintiff. (Cornerstone Consultants, Inc. v. Prod. Input Solutions, LLC (N.D.Ia.2011) 789 F.Supp.2d 1029, 1047 (emphasis added), cited in Sears v. County of Monterey (N.D. Cal., Feb. 3, 2012, No. C 11-01876 SBA) 2012 WL 368688, at *12, and Ewiz Express Corp. v. Ma Laboratories, Inc. (N.D. Cal., Sept. 28, 2015, No. 15- CV-01213-LHK) 2015 WL 5680904, at *8, construing 18 U.S.C. § 2707(c).6) The possible statutory penalty of $1,000 under the SCA may not be awarded absent actual damages. (Van Alstyne v. Electronic Scriptorium, Ltd. (4th Cir. 2009) 560 F.3d 199, 208 (jury award of statutory penalty under the SCA reversed due to the absence of actual damage), cited in Patwardhan v. U.S. ex rel. Dept. of Health and Human Services (C.D. Cal., Mar. 18, 2014, No. CV 13-0076) 2014 WL 6 Subd. (c) of 18 U.S.C. § 2707 states, in part: The court may assess as damages in a civil action under this section the sum of the actual damages suffered by the plaintiff and any profits made by the violator as a result of the violation, but in no case shall a person entitled to recover receive less than the sum of $1,000. _____________________________________________________________________________________________ Defendant. Reynolds’ Motion to Dismiss TAC 15-cv-04763 AG (JEMx) 12 Case 2:15-cv-04763-AG-JEM Document 195 Filed 10/31/16 Page 18 of 22 Page ID #:2844 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 THOMPSON COE & O’MEARA, LLP 1092898, at *9.) No actual damages can be gleaned from the TAC. The statutory penalty is therefore unavailable. The absence of actual damage can be seen from the TAC itself, as well as the two items of which judicial notice is requested separately. This is because the TAC, like the earlier complaints, relies on a primary conceit: that the “in-take” materials obtained from HQSU contained private and/or attorney-client information that should never have been seen by the workers’ compensation carrier, defense counsel, or anyone else. Further, by revelation of this “private” information, Mr. Casillas’ underlying compensation claim was somehow damaged, and his recovery was somehow reduced, due to his workers’ compensation insurer (and its agents) possessing it. This conceit is demonstrably false, for at least two reasons. First, the identifying information and rudimentary medical complaint information in them is normally sent to the workers’ compensation insurer as part of its processing of any claim. That data was included in WCAB forms. It is simply not “private” or “confidential” information as to them if, as here, the claimant sends it, along with their medical records relating to the claim. The allegation that the identical information was obtained due to “hacking” could have caused no damage if the identical information – indeed, the identical forms – would be submitted to the workers’ compensation insurer, counsel, and their agents in the normal process of the claim. Allegations of “hacking” do not change this reality. The more important reality is this: Mr. Casillas himself filed all his supposedly private personal identifying information and medical description in the public record, in the WCAB file for Casillas v. Xerxes. (See, RJN Exh. 1.) This includes his Social Security number, date of birth, and other information that, in TAC ¶¶ 28-30, he alleges caused all his damage when “defendants” somehow _____________________________________________________________________________________________ Defendant. Reynolds’ Motion to Dismiss TAC 15-cv-04763 AG (JEMx) 13 Case 2:15-cv-04763-AG-JEM Document 195 Filed 10/31/16 Page 19 of 22 Page ID #:2845 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 THOMPSON COE & O’MEARA, LLP obtained this information. The result of this should be obvious. Mr. Casillas cannot rationally claim to have suffered damaged by his workers’ compensation insurer, its defense counsel, or their agent, Mr. Reynolds, somehow viewing information that Mr. Casillas himself put into the public domain by filing it, unredacted, with the WCAB. (See, RJN Exh. 1 and Caine Decl. ¶ 2.) Any notion that the data on those pages was “attorney-client privileged,” or in any way “private,” is waived by his having filed it in court without redaction. And the workers’ compensation insurer and its agents would have access to, and be entitled to see, the data included on those filings as part of the workers’ compensation process anyway. Any claim that they “wrongfully” viewed the data, or that Mr. Casillas was damaged by their doing so, is simply false, factually and legally. Mr. Reynolds is alleged to have been a former employee of BHHC – even though there is no effort to plead that he was actually involved in the alleged “hacking,” at all or at the particular times he was employed at BHHC or afterward. At least as the “hacking” was alleged in the SAC, he was an investigator working with Knox Ricksen at the time of Casillas v. Xerxes. Ignoring for the moment the TAC’s vagueness on when or how the data was allegedly “hacked,” it remains true that Mr. Reynolds cannot have committed a tort by supposedly viewing data that his principals were entitled to see, and which was available publicly in the WCAB’s file. Moreover, regardless of Mr. Reynolds’ role in Casillas v. Xerxes (if any), the alleged “privileged” or attorney-client matters did not impact its resolution. Knox Ricksen was ordered to not use the “in-take packet” data, and the claim was resolved. (RJN Exh. 2.) Even if the data was truly attorney-client privileged, a potential penalty for an opponent coming into possession of attorney-client information “materially related” to a case is disqualification of counsel. (In re Complex Asbestos Litigation (1991) 232 Cal.App.3d 572, 597-598.) Monetary or _____________________________________________________________________________________________ Defendant. Reynolds’ Motion to Dismiss TAC 15-cv-04763 AG (JEMx) 14 Case 2:15-cv-04763-AG-JEM Document 195 Filed 10/31/16 Page 20 of 22 Page ID #:2846 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 THOMPSON COE & O’MEARA, LLP issue sanctions are also potentially available. (Id.) An award of any sanction is discretionary with the court. Noteworthy here is the fact that the Workers’ Compensation Court specifically denied a motion to disqualify Knox Ricksen as counsel. That finding necessarily conveys a finding by the Compensation Court that Knox Ricksen’s possession of Mr. Casillas’ “in-take” materials did not prejudice his claim. (In re Complex Asbestos, supra, 232 Cal.App.3d at 598 (disqualification should be ordered where prejudice cannot be remedied by other means).) There is no cogent allegation otherwise in the TAC. Second, the allegations reveal a fundamental misunderstanding of the workers’ compensation system, and how benefits are awarded under it. Summarized greatly, the workers’ compensation system does not work like civil trial courts. If there is a work-related injury, benefits are awarded, and medical expenses are paid for, as a matter of course. The underlying premise of the statutorily created system of workers’ compensation is the “ ‘compensation bargain.’ ” Pursuant to this legislated “bargain,” “the employer assumes liability for industrial personal injury or death without regard to fault in exchange for limitations on the amount of that liability. The employee is afforded relatively swift and certain payment of benefits to cure or relieve the effects of industrial injury without having to prove fault but, in exchange, gives up the wider range of damages potentially available in tort.” (Privette v. Superior Court (1993) 5 Cal.4th 689, 697 (citations omitted); see also, Charles J. Vacanti, M.D., Inc., supra, 24 Cal.4th at 811.) Further, by statute, medical and legal expenses are paid upon presentation. (See, Cal. Labor Code §§ 4603.2, 4622, 5814.) The TAC makes vague claims that his compensation counsel had to “consider” accepting less due to the compensation insurer seeing his “in-take” information. (See, TAC ¶ 28(f).) But that claim is just wrong. So, too, is the _____________________________________________________________________________________________ Defendant. Reynolds’ Motion to Dismiss TAC 15-cv-04763 AG (JEMx) 15 Case 2:15-cv-04763-AG-JEM Document 195 Filed 10/31/16 Page 21 of 22 Page ID #:2847 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 THOMPSON COE & O’MEARA, LLP imagined parade of horribles contained in the subparagraphs in TAC ¶ 28, added to try and find something – anything – that might address this Court’s earlier-stated concerns that the allegations did not outline actual damage. Especially if the supposedly “private” data was placed into the public file by Mr. Casillas as part of the regular process of adjudicating his claim, there can be no rational reason why doing so somehow compelled his counsel to do anything, or caused any cognizable harm to Mr. Casillas. There is no allegation that Mr. Casillas actually accepted less, or that his benefits were in any way reduced. In sum, there is no allegation that he suffered any actual damage whatsoever. In light of this, there is nothing in the TAC that provides the minimally plausible, non-speculative story capable of supporting Mr. Casillas’ claims, as required by Rule 12(b)(6). (See, Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-556 (2007). VI. Conclusion. The TAC changes no allegation sufficient to meet the Court’s earlier-stated concerns. The allegations are factually unsupported to an extent that it violates Rule 12(b). The motions to dismiss should be granted, this time without leave to amend. DATED: October 31, 2016 THOMPSON COE & O’MEARA, LLP By: ___/ X /_Stephen Caine_________ Frances O’Meara, Esq. Stephen M. Caine, Esq. Attorney for WILLIAM REYNOLDS _____________________________________________________________________________________________ Defendant. Reynolds’ Motion to Dismiss TAC 15-cv-04763 AG (JEMx) 16 Case 2:15-cv-04763-AG-JEM Document 195 Filed 10/31/16 Page 22 of 22 Page ID #:2848 1 THOMPSON COE & O'MEARA LLP Frances M. O'Meara SBN 140600 2 Stephen M. Caine SBN 119590 12f00 Wilshire Boulevarhone: (213) 383-6244 Facsunile: (213) 383-6243 A'ITORNEY FOR APPUCANT, WORKERS' COMPENSATION APPEALS BOARD \t-eck- FOR THE STATE,9F CALIFORNIA, COUNTY OF LOS ANGELES 0\ c C(S I la5 l CASENO.:V)CF:6l'(ft ()._ ) APPLICAN'f•S DECLARATION Applicant, ) PURSUANT TO LABOR CODE SECTIO 1 ~ 4906(g) '} -ei)y-f(S Co'\)d'U1~ 017 { ~ ~ Pursuant to Labor Code Section 4906(g), I declare under penalty of petjury that I hav not violated Section 139.3 and have not offered, delivered, r~elved, or accepted any rebate refund. commission, preference. patronage dividend, discount, or other consideration, whether · the form of money or otherwise. as compensation or inducement for any referred examination o 20 :a 22 25 26 27 28 evaluation. Date: -~:t~\2.:.....~'31-4r-'--'-\'SL--_ APPLICANT Before signins this form. you should be aware that: .. Any person who makes or causes t be made any knowingly false or fraudulent material statement or representation for the purpos of obtaining or denying workers' compensatio~ benefits or payments is guilty of a felony." APPLICANT'S DECLARATION PURSUANT TO LABOR CODE SECTION 4906(g) ·1- Case 2:15-cv-04763-AG-JEM Document 195-1 Filed 10/31/16 Page 18 of 25 Page ID #:2866 - STATE OF CALIFORNIA WQR;KE~S' COMPENSATION A.PPEALS BOARD r C45i I las Applicant VS. Defendants. DECLARATION PURSUAN' TO LABOR CODE §4906(G: I Ron~ .l)(\~ Y&ou ro "declare as follows: I hereby state under penalty of perjury- that I have not violated Labor Code§ 139.3. . . I fu1iher state under penalty of perjury that I have not offere.d, delivered, received, or accepted any rebate, refund, co1nnJission, preference, patronage dividend, discount, or ,other consideration, whether in the forn1 of money or otherwise: as con1pensation or indL~cen1ent fo1· an refeJ;red exan1ination or ev~luation in this case:. I declare un_der pep.alty of perjury that the _foregoing is true and correct. -~==--SIGNATU.RE (STAMP.ED OR .ELECTRONIC Sl"GNATURES _NOY .'PJ!:H.MISSll3LE) Case 2:15-cv-04763-AG-JEM Document 195-1 Filed 10/31/16 Page 19 of 25 Page ID #:2867 01/07/2010 19:26 FAX State of California Department of Jndustrlal Relations Division of Worker's .Compensation FEE DISCWSURE STATEMENT !41009 If you choo$8 to be represented by an attorney, your attorney's fees will be deducted from benefits. The fee will be approved by the Workers' Compensation Appeals Board, wlth consideration given to; (l) responsibility assunwd by the attorney; (2) care exercised in repre~ntlng you~ (3) time involved; and { 4) results obtained. Att.Qrney's fees normally are Ia of the benefits awarded. If your attorney has also rept0$ented you before the Rehabilitation Unit, there may also be a fee allowed for this representation. There are certain circumstances where your employer (or· his/her Insurer) may be liable to pay your attorney's fees. For example, if employer disputes a permanent disability evaluation obtained when you were not represented by an attorney, your employer may be liable for any attorney fees you incur because of the dispute. · H at any time you no longer wish .to be represented by the attorney, you may withdraw from representation by notifying the attorney. If you withdraw from representation. the fcc amount found by a workers • compensation judge to be the fair value of any work the attorney did Qn your case will be deducted from your award. An Information & Assistance Officer may be able to anawt:r your questions concerning your WQrkers' CompeMation ben.qlts at no clwrge to you. He/She may btl abU! to resolve your problems without the need for litigation. · Call this toll~free number: (800) 736-7401. An attorney fee of 15% will be requested. Eroploy~·s Signature X ~ ~ Employee's Name H eQtor ilis ( lla5 ·~# Attoroey"sSiS""'nt< :=:- Attorney's Name Address Phone LaW Offices of Reves & BamQum. ~ 3055 Wilshire Boulevard. Suite 610 Los An"eles. California. 90010 (213) 383-6244 Fax (213) 383-6243 Anyper.ron who makes or muses to b.tt made PitY knowingly false or [rauclulent mgterjal statement qr materlgl representation for tluJ ll,Urpose of obtaining or denying workers' compensation btme{its or payments is guilty of a (elofJ1... Case 2:15-cv-04763-AG-JEM Document 195-1 Filed 10/31/16 Page 20 of 25 Page ID #:2868 PROOF OF SERVICE STATE OF CALIFORNIA COUNTY OF WS ANGELES I am a resident of the county aforesaid; I am over the age of eighteen years and not a party to the within entitled action; my business address is 3055 Wilshire Blvd. Ste. 670; Los Angeles, CA 90010. On July 31, 2013, I served the within APPLICATION FOR ADJUDICATION OF CLAIM; 4906(G) DECLARATION; DWC-1; FEE DISCWSURE STATEMENT; VENUE SELECTION UNDER LABOR CODE SECTION 5501.5; RULE 10408 on the interested parties in said action by placing a true copy thereof enclosed in a sealed envelope, addressed as stated below: Xerxes Corporation 1210 N. Tustin Ave., Anaheim, CA 92807 Hector Casillas 1951 Baudin St. Pomona, CA 91766 Workers' Compensation Appeals Board (Filed via Quick EAMS) ( DWC-1 is not Included) 4720 Lincoln Blvd., 2nd Hoor Marina Del Rey, CA 90292 IZI (BY MAIL) I deposited such envelope with postage thereon fully prepaid, in the United States mail at Los Angeles, CA 0 (BY PERSONAL SERVICE) I delivered such envelope by hand to the offices of the addressee. 0 (BY FACSIMILE) The above-described document(s) was sent by facsimile transmission to ttre-facsimile number( s) of the law office( s) stated above. The transmission was reported as complete and without error. A copy of the transmission report is made a part of this proof of service pursuant to CRC § 2008. 181 (State) I declare, under penalty of perjury under the laws of the State of California that the foregoing is true and correct. 0 (Federal) I declare that I am employed in the office of a member of the bar of this court at whose direction the service was made. Executed on July 31, 2013, at Los Angeles, CA. Ohru!i-• .. ~- ~. J., > :., .. t {~' 1; -'j!$ l •• :·;.: !.i -·~-H· ,· f, ,, ,_ '· f. ~~-y {kt-~ -~-U,l-~- ·;-_,w :~- '~;f . ····-y,,· ~- ,·, •. Case 2:15-cv-04763-AG-JEM Document 195-1 Filed 10/31/16 Page 24 of 25 Page ID #:2872 5_;. •1:8_,, {~, '2o •'.' 22 l ilectorz:Casiiias;,v ;._z@i Composites; Inc;. ,q_:ti9J:NP~;-- -··· _ __ i~6-?.«.i9_4ss~o·oJ ''W€A'B.:€lA:SEN~lO::· ~DJ9.03073S· J{ltfF;i'f~~~iJ,_;,;· ·-·· . . r&~f9ti ·--·· . ,.,,- ,PROOF.OJLSERVItE; ~Ci,??e o.f!EjV. :Ei,oc.: §§ 1,013, JQ13a, ~015.5]: *·· ..... -· . . . ~ .. : - ... : ...... ·- . . . . . .:. . . . ... ...... . '. REYES· & BARSOUNI :{Qss; Wi\S.Jiire''i?1V4:, St~. 670 L9s;Ahg~!(~~. ·CA 900·h0 - . ;.,·.·}_:,_·: ~ .~ .. ~ :;~ I declare under penalty of' perjmy under the laws of the ;~hare of California- thaf t!fe ,) II foregoing is true anl:l correct. ,r ~: ~ '· I 23 : Dated: November 25, 2014 ~q 24 25 26 27 I' ROOF OF SERVICE Case 2:15-cv-04763-AG-JEM Document 195-1 Filed 10/31/16 Page 25 of 25 Page ID #:2873 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 THOMPSON COE & O’MEARA, LLP THOMPSON COE & O’MEARA, LLP Frances M. O’Meara SBN 140600 Stephen M. Caine SBN 119590 12100 Wilshire Boulevard, Suite 1200 Los Angeles, California 90025 Telephone: (310) 954-2400 Facsimile: (310) 954-2345 Attorneys for Defendant WILLIAM REYNOLDS UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA HECTOR CASILLAS, Plaintiff, vs. BERKSHIRE HATHAWAY HOMESTATE COMPANIES, a Nebraska Corporation; CYPRESS INSURANCE COMPANY, a California Corporation; ZENITH INSURANCE COMPANY, a California Corporation; BROADSPIRE CLAIMS SERVICES, a New York Corporation; KNOX RICKSEN, LLP, a California Limited Liability Partnership; ERIC DANOWITZ, an individual; DANIEL SHARP, an individual; WILLIAM REYNOLDS, an individual; OLIVER GLOVER, an individual; RUSSELL CHING, an individual; STELLA MENDOZA, and individual; and DOES 1 to 10, inclusive, Defendants. Case No: 2:15-cv-04763-AG (JEMx) [Assigned to: Hon. Andrew J. Guilford, Crtrm 10D – Santa Ana] PROPOSED ORDER GRANTING DEFENDANT WILLIAM REYNOLDS’ MOTION TO DISMISS Order from Motion Heard: Date: November 28, 2016 Time: 10:00 am Crtrm: 10 D (Santa Ana) Complaint filed: 06/23/2015 The Court, having considered the Motion to Dismiss Plaintiff’s Third Amended Complaint (the "Motion") filed by Defendant William Reynolds, as well as all opposition and reply papers submitted concerning it, and having heard and considered all arguments and evidence presented at hearing of the Motion, and good cause appearing, now finds: _____________________________________________________________________________________________ ORDER GRANTING DEFENDANT REYNOLDS’ MOTION TO DISMISS TAC 2:15-cv-04763-AG (JEMx) 1 Case 2:15-cv-04763-AG-JEM Document 195-2 Filed 10/31/16 Page 1 of 2 Page ID #:2874 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 THOMPSON COE & O’MEARA, LLP IT IS HEREBY ORDERED that Defendant William Reynolds’ Motion to Dismiss is GRANTED without leave to amend. The Court further grants Defendant William Reynolds’ request for judicial of matters submitted with the Motion to Dismiss. Plaintiff’s Third Amended Complaint, and all counts stated therein against Defendant William Reynolds, is and are hereby dismissed with prejudice. SO ORDERED. DATED: ______________ _____________________________________ Hon. Andrew J. Guilford Judge of the U.S. District Court _____________________________________________________________________________________________ ORDER GRANTING DEFENDANT REYNOLDS’ MOTION TO DISMISS TAC 2:15-cv-04763-AG (JEMx) 2 Case 2:15-cv-04763-AG-JEM Document 195-2 Filed 10/31/16 Page 2 of 2 Page ID #:2875