Declaration of Vincent Axelson In Support of Motion

Motion

Cal. Super. - 2nd Dist.February 27, 2018

Electronically FILED by S 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 285 26 277 28 IU perior Court of California, County of Los Angeles on 02/01/2019 04:50 PM Sherri R. Carter, Executive Officer/Clerk of Court, by C. Cappadona,Deputy Clerk Vincent J. Axelson, Esq. (SBN 159549) Anders T. Aannestad, Esq. (SBN 211100) Arie Spangler, Esq. (SBN 229603) THE AXELSON LAW FIRM 111 C Street Encinitas, California 92024 Telephone: (858) 337-3331 Facsimile: 1+ (760) 248-4440 Attorneys for Defendant PACIFIC COACHWORKS, INC. SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES NORWALK COURTHOUSE ASHLEY ELLISON, and individual Plaintiff, Vs. PACIFIC COACHWORKS, INC., a California Corporation; and DOES 1 through 50, Inclusive, Defendants. r N N r N r N r N a N a N a N a N a N a N a N a N a N a N a N a N a N a N a N r ’ I, Vincent Axelson, declare as follows: I. I am a partner at the Axelson Law Firm, attorneys of record for Defendant Pacific Coachworks, Inc. (“PCW”) in this matter. I am admitted to practice before all Courts in the State off California. I have personal knowledge of the facts set forth in this declaration. If called to testify, I could and would testify competently to the facts set forth herein. DECLARATION OF VINCENT AXELSON IN SUPPORT OF MOTION CASE NO.: VC066961 Assigned For All Purposes To Hon. Margaret M. Bernal in Dept. F DECLARATION OF VINCENT AXELSON IN SUPPORT OF MOTION TO QUASH SERVICE OR, ALTHERNATIVELY, SET ASIDE DEFAULT Date: February 28, 2019 Time: 1:30 p.m. Dept: C Complaint Filed: February 27, 2018 Trial Date: None Set 1 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 285 26 277 28 10. 11. 12. On June 1, I sent an email to Plaintiffs counsel, Eric Natenstedt, requesting a stipulation to set aside the default. A true and correct copy of this email is attached hereto to as Exhibit “A”. In an email a short time later, Mr. Natenstedt denied the request and began threatening a default judgment unless PCW settled the case. A true and correct copy of Mr. Natenstedt’s email is attached hereto as Exhibit “B.” The parties thereafter engaged in settlement negotiations through mid-August. Then, Mr. Natenstedt stopped returning phone calls and emails our office sent him. The Court held a Case Management Conference in this case on August 28. PCW specially appeared, but Plaintiff and her counsel did not show up. The Court set an OSC regarding dismissal for November 9, 2018 due to Plaintiff’s nonappearance. My office attempted to contact Mr. Natenstedt several times following the CMC to further discuss settlement and setting aside the default. There was no response. On September 17, 2018 Brian Cline, a lawyer from Plaintiff’s counsel’s office emailed my partner Anders Aannestad and me stating he was taking over the case. Mr. Cline did not engage in any further settlement discussions. On October 17, I was notified that Plaintiff would oppose any attempt to set aside the default. On October 18, 2018 PCW appeared ex parte in this Court for an Order setting aside the default. At the ex parte hearing, the Court agreed to hear Defendant’s motion to set aside and set aj hearing date for December 6. The Motion hearing date was then continued to February 28, 2019. Attached hereto as Exhibit “C” is a true and correct copy of the Proof of Service of the Complaint filed by Plaintiff in this case. Attached hereto as Exhibit “D” is a copy of PCW’s proposed Answer in this case. DECLARATION OF VINCENT AXELSON IN SUPPORT OF MOTION 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 13: I am authorized to accept service of the Complaint in this case on behalf of Pacific Coachworks, Inc. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Dated February 1, 2019 at Encinitas, California. J £ 3 DECLARATION OF VINCENT AXELSON IN SUPPORT OF MOTION EXHIBIT A From: Brett [mailto:brett@silver-creek.net] Sent: Monday, March 05, 2018 12:51 PM To: Linh Tran ; Mike Rhodes Subject: Fwd: LAWSUIT ALERT - Solicitation Brett Bashaw Begin forwarded message: From: "Dr. Dariush Adli" Date: March 5, 2018 at 12:25:22 PM PST To: "brett@pacificcoachworks.com" Subject: LAWSUIT ALERT - Solicitation Dear Sir or Madam, If you already have an attorney, please disregard this letter. We obtained your information concerning the lawsuit below from the public records from the Clerk of the Court. Those records indicate that there is a legal dispute, which may involve you or someone with a similar name as yours. My name is Dr. Dariush Adli. I am the President of ADLI Law Group, a full-service law firm offering legal services in Business, Intellectual Property (Patent, Trademark, Copyright and Trade Secrets), Labor & Employment, Real Estate, Construction, Entertainment, Products Liability, Corporate Transactions and Family Law. The following lawsuit was recently filed in the Los Angeles County Superior Court Branches by Ashley Ellison. Ashley Ellison v. Pacific ~~ Other Contract (General Jurisdiction) Pecora & Cline, Brett Coachworks Inc; Bashaw VC066961; ; 02/27/2018 We would be happy to offer you a free case evaluation and answer your questions about this lawsuit. If you have not yet been served with the complaint, we can get a copy of the complaint. Since its inception in 2010, ADLI Law’s mission and focus have been to provide clients with first rate service and the personal attention they deserve. Feel free to call me at 213-623-6547 to discuss this matter. Please note that this is merely a solicitation and that until we have received a signed fee agreement and a suitable retainer, no attorney-client relationship is established between us. Feel free to contact me with any questions or comments. We are always happy to assist you with your legal issues. Thank you. Dr. Dariush G. Adli, Ph.D, Esq. President Phone: (213) 623-6546 | Direct: (213) 623-6547 | Fax: (213) 623-6554 www.adlilaw.com | www.adlilaw.com/dr-dariush-g-adli 444 South Flower Street, Suite 3100 Los Angeles, CA 90071 PLEASE NOTE: This message, including any attachments, may include privileged, confidential and/or inside information. Any distribution or use of this communication by anyone other than the intended recipient(s) is strictly prohibited and may be unlawful. If you are not the intended recipient, please notify the sender by replying to this message and then delete it from your system. Thank you. *THIS E-MAIL MAY CONTAIN NON-PUBLIC, CONFIDENTIAL INFORMATION, PRIVILEGED OR OTHERWISE LEGALLY PROTECTED FROM UNAUTHORIZED DISCLOSURE. IF YOU ARE NOT THE INTENDED RECIPIENT, ANY DISCLOSURE, COPIES, DISTRIBUTION, OR ACTIONS IN RELIANCE ON THE CONTENTS OF THIS E-MAIL IS PROHIBITED. PLEASE PROMPTLY NOTIFY SENDER IF YOU HAVE RECEIVED THIS E-MAIL IN ERROR AND DELETE IT FROM YOUR E-MAILS.* *THIS E-MAIL MAY CONTAIN NON-PUBLIC, CONFIDENTIAL INFORMATION, PRIVILEGED OR OTHERWISE LEGALLY PROTECTED FROM UNAUTHORIZED DISCLOSURE. IF YOU ARE NOT THE INTENDED RECIPIENT, ANY DISCLOSURE, COPIES, DISTRIBUTION, OR ACTIONS IN RELIANCE ON THE CONTENTS OF THIS E-MAIL IS PROHIBITED. PLEASE PROMPTLY NOTIFY SENDER IF YOU HAVE RECEIVED THIS E-MAIL IN ERROR AND DELETE IT FROM YOUR E-MAILS.* EXHIBIT B From: Eric Natenstedt Sent: Tuesday, June 5, 2018 2:19 PM To: Vincent Axelson Subject: RE: Ellison v. PCW Good Afternoon Vince, Its great to finally hear from someone for Pacific Coachworks. | filed this suit on February 27, 2018 and Pacific Coachworks’ first contact is over 3 months later. That's 3 extra months my client has had to deal with this case and this vehicle. Requesting an extension to file an answer is one thing, even being a few days late on the answer is forgivable, but your client had 3 months to respond and failed to do so. As such | cannot agree to a stip to set aside the default. Furthermore, written discovery requests were served on March 19, 2018. Responses were due April 23, 2018. We have not received any responses or objections. Your clients objections are now waived. Please provide responses to the written discovery requests without objections immediately. Should the court find to set aside the default in this case, we will have to move to compel the responses (should they not be received in full prior). To both expedite the resolution of this case and to keep litigation costs down, my client is open to discussing settlement prior to action being taken on the default. Please let me know ASAP if your client is amenable. Regards, Eric K. Natenstedt CLINE APC, Attorneys at Law 7855 Ivanhoe Avenue, Suite 408 La Jolla, CA 92037 858.373.9337 office www.clineapc.com | etic@clineapc.com EXHIBIT C ATTORNEY OR PARTY WITHOUT At TORNEY (Name, State Bar nurder, and sddas): FOR COUREH SLOMAN mm Eric K. Natenstedt, 299714 3 0 g 3 $ 2 me ly FSAI ene Cline Firm SiR shu Ea tc Ee A 7856 Ivanhoe Avenue, Suite 408 oo La Jolla, CA 92037 i . 0 ~ tevepHone No. (858) 459-2603 MAR 1 2 A 0) ATTORNEY FOR (Mame). PlEINLIE or fa Rreadifig SUPERIOR COURT OF CALIFORNIA, COUNTY OF Superior Court of California, Los Angeles County 12720 Norwalk Blvd Norwalk, CA 50650-3188 CASE NUMBER; VC066961 BLAINTIFF/PETITIONER: Ashley Ellison BEFENDANT/RESPONDENT: Pacific Coachworks, Inc., et al. Ref. No. or File No. PROOF OF SERVICE OF SUMMONS on BY FAX 1. At the time of service | was a citizen of the United States, at least 18 years of age and not a party to this action, 2 | served copies of: Summons, Complaint, Civil Case Cov er Sheet, Civil Case Cover Sheet Addendum and Stateme nt of Location, Notice of Case Management Conference, ADR Infor mation Packet 3. a. Parly served: Pacific Coachworks, I nc. b. Person Served: Michael G. Rhodes - Person Authorize d to Accept Service of Process 4: 2830 Barrett Avenue Perris , CA 92571 4, Address where the party was serve 5. 1 served the party . b. by substituted service. On (date): 03/05/2018 at (lime) q0.ggppm | left the documents listed in iter 2 wit h or in the presence of: "Jane Doe” (CF/50s/ 160/5'6/LongBlondH) Receptionist - Person In Charge Of Office {1) (business) a person at least 18 years of age apparent ly in charge at the office ar usual place of business of the person to be served. | informed him or her of the g eneral nature of the papers. {4} A declaration of mailing is attached. 6. The “Notice to the Person Served" (on the summons ) was completed as follows: PALEY ehworks, Inc. under: CCP 416.10 (corporation) 7. ferson who served papers a. Name: Agustin Franco is. Address: One Legal - 194-Marin 504 Redwood Blvd #223 - Novato, CA 94947 ¢. Telephone number; 415-491-0606 d. The fee for service was: § 95.00 © Fam (3) registered California process server. (iy Employee or independent contractor. (ii) Reaistration No, PS-001764 {iii} County Riverside 8. | declare under penalty of perjury under the laws of the United States of America and the State of California that the foregoing is true and correct. pate: 03/09/2018 Apes Agustin Franco (NAME CF PERSON WHO SERVED PAPERS) Form Adented for Mandatory Use Cudiciat Grounds of Catiforaia POS.010 PROOF OF SERVICE OF SUMM ONS Ray Jan 1, 2007) {SIGNATURE ode of Civil Procedure, § 417.10 oLg 11768024 | | La Jolla, CA 92037 Ret Mo . or Fa No. ATTORNEY OR PARTY WITHOUT ATTORNEY (Mame and Address): TELEPHONE NO: FORCOURT USE ONLY Eric K. Natenstedt, 209714 (858) 459-2603 Cline Firm Co 7855 vanhoe Avenue ArronnEy FOR rae; PAINE i i {sent pie of cour, judicial diskct or branch cout, any: : « M AR 12 20 ) | South East District 12720 Norwalk Blvd ’ ) Sherri . Exeoutiy Norwalk, CA 90650-3188 By 2 er ¥ oe PLANTIFE: Ashley Ellison DEFENDANT: Pacific Coachworks, Inc., et al. - CASE NUMBER: PROOF OF SERVICE BY MAIL VCOB6961 { am a citizen of the United States, over the age of 18 and nota par ty to the within action. My business address is 504 Redwood Blvd., Suite 223 Novato, CA 94647, . On 03/09/2018, after substituted service under section CCP 415.20( a) ar 415.20(b) or FRCP 4(e)(2)(B) or FRCP 4(h)(1)(B) was made (if applicable), | mailed copies of the: : Summons, Complaint, Civil Case Cover Sheet, Civil Case Cover Sheet Add endum and Statement of Location, Notice of Case Management Conference, ADR information Packet to the person to be served at the place where the copies were left by pla cing a true copy thereof enclosed in a sealed envelope, with First Class postage thereon fully prepaid, in the United States Mail at Los Angeles, California, addressed as follows: Pacific Coachworks, Inc. Michael G. Rhodes 2830 Barreit Avenue Perris , CA 825671 { am readily familiar with the firm's practice for collection and process ing of documents for mailing. Under that practice, it would be deposited within the United States Postal Service, on tha t same day, with postage thereon fully prepaid, in the ordina ry course of business. | am aware that on motion of the party serve d, service is presumed invalid if postal cancellation date or postage meter date is more than one (1) day after date of dep osit for mailing in affidavit. Fee for Service: $ 95-00 { declare under penalty of perjury under the laws of the United States of America and the State of California that the foregoing is true and correct and that this declaration was exccuted on 03/09/2018 at Los Angeles, California, Cne Legal - 194-Marin pd 7) 7 a res 504 Redwood Blvd #223 8 + Ho EXHIBIT D 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 285 26 277 28 Vincent J. Axelson, Esq. (SBN 159549) THE AXELSON LAW FIRM 111 C Street Encinitas, California 92024 Telephone: (858) 337-3331 Facsimile: 1+ (760) 248-4440 Attorneys for Defendant PACIFIC COACHWORKS, INC. SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES NORWALK DIVISION ASHLEY ELLISON, an individual ) CASE NO.: VC066961 ) Plaintiff, ) Assigned For All Purposes To J Hon. Judge Margaret M. Bernal in Dept. F VS. ) PACIFIC COACHWORKS, INC., and DOES : ANSWER OF DEFENDANT PACIFIC 1-50, inclusive ) COACHWORKS, INC. ) Defendants. ) ) Complaint Filed: July 16, 2018 ) Trial Date: Not Set ) ) ) ) ) Defendant PACIFIC COACHWORKS, INC. (“Defendant”), by and through its attorneys, THE AXELSON LAW FIRM, answer Plaintiff ASHLEY ELLISON’s (“Plaintiff”) Complaint by generally denying each and every allegation contained therein. GENERAL DENAIL Pursuant to the provisions of California Code of Civil Procedure section 431.30(d), Defendant] denies, generally and specifically, each, every and all of the allegations of the Complaint as a whole, and further generally and specifically denies that Plaintiff has sustained any loss, injury, or damage as a proximate result of any act, breach, or omission on the part of the Defendant. 1 ANSWER 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 285 26 277 28 Additionally, Defendant asserts the following affirmative defenses in order to preserve them until the time of trial, while reserving the right to amend the answer at a later time based upon subsequently acquired information and documents. Investigation and discovery have not been] completed. AFFIRMATIVE DEFENSES FIRST AFFIRMATIVE DEFENSE (Comparative Fault) 1. If Plaintiff sustained any damages as alleged in the Complaint, that damage was proximately caused and contributed to by Plaintiff in failing to conduct himself/herself in a manner ordinarily expected of reasonably prudent persons in the conduct of their affairs and business. Plaintiff’s contributory negligence and fault diminishes any recovery herein. SECOND AFFIRMATIVE DEFENSE (Contributory Negligence Of Third Parties) 2. If Plaintiff sustained any damages as alleged in the complaint, that damage was proximately caused and contributed to by persons and/or parties other than Defendant in failing to conduct themselves in a manner ordinarily expected of reasonably prudent persons in the conduct of their affairs and business. Contributory negligence and fault of other persons and/or parties diminishes any recovery from Defendant. THIRD AFFIRMATIVE DEFENSE (Failure To State A Cause Of Action) 3. Plaintiff’s complaint, and each cause of action and count thereof, fails to state sufficient facts to constitute a cause of action against Defendant. FOURTH AFFIRMATIVE DEFENSE (Disclaimer of Warranties/Damages) 4. Plaintiff’s causes of action for breach of express and implied warranties and incidental and consequential damages are barred or limited by the express disclaimers and limitations of liability contained in the purchase contract, express warranties or other agreements. These disclaimers bar or limit Plaintiff’s recovery herein. ANSWER 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 285 26 277 28 FIFTH AFFIRMATIVE DEFENSE (Statute of Limitations) 5. All causes of action alleged in the Complaint are barred by the statute of limitations, whether contained in Code of Civil Procedure, sections 337, 338, 339, 340, 343, Commercial Code section 2725, Defendant’s warranty or warranties, Civil Code section 1783, or otherwise. SIXTH AFFIRMATIVE DEFENSE (Failure to Mitigate Damages) 6. If Plaintiff sustained any damage as alleged in the Complaint, that damage was proximately caused and contributed to by Plaintiff in failing to mitigate damages. Plaintiff’s failure to mitigate damages diminishes any recovery herein. SEVENTH AFFIRMATIVE DEFENSE (Estoppel) 7. Defendant is informed and believe and based thereon alleges that Plaintiff has engaged in conduct and activity sufficient to estop them from asserting all or any part of the claim set forth in the Complaint. EIGHTH AFFIRMATIVE DEFENSE (Unclean Hands) 8. Defendant is informed and believe and based thereon alleges that the claims and relief sought by Plaintiff is barred by reason of the doctrine of unclean hands. NINTH AFFIRMATIVE DEFENSE (Waiver) 0. Defendant is informed and believe and based thereon alleges that Plaintiff has engaged in conduct and activities sufficient to constitute a waiver of any alleged breach of express or implied warranty or any other conduct as set forth in the complaint. 3 ANSWER 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 285 26 277 28 TENTH AFFIRMATIVE DEFENSE (Laches) 10. Defendant is informed and believes and based thereon alleges that Plaintiff waited an unreasonable period of time to complain of the alleged acts or omissions at issue in the Complaint so as to prejudice Defendant. Plaintiff is therefore guilty of laches and barred from recovery. ELEVENTH AFFIRMATIVE DEFENSE (Failure of Performance) 11. Defendant is informed and believes and based thereon alleges that any failure to perform the obligations as described in the Complaint resulted from Plaintiff’s failure to perform as required by the contract and/or warranty. Performance on Plaintiff’s part of her obligations was a condition precedent to the performance of Defendant’ obligations. TWELFTH AFFIRMATIVE DEFENSE (Alteration of Product) 12. When the subject vehicle left the possession, custody and control of Defendant it was merchantable and had no defects. Any damage to the subject trailer was caused and created by changes and alterations made to the trailer, subsequent to the time of the trailer's manufacture and/or sale, by persons other than Defendant or any of its agents, servants, or employees, thereby barring any recovery by Plaintiff against Defendant herein. THIRTEENTH AFFIRMATIVE DEFENSE (Failure to State Cause of Action for Civil Penalties) 13. The complaint fails to state sufficient facts to warrant the imposition of civil penalties since Defendant had a good faith and reasonable belief that replacement or repurchase of the subject trailer was not appropriate under the circumstances and among other things there was no willful conduct on the part of Defendant. I] I] I] ANSWER 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 285 26 277 28 FOURTEENTH AFFIRMATIVE DEFENSE (Abuse or Failure to Maintain) 14. Plaintiff is barred from recovery by virtue of Civil Code section 1794.3, or other law, since the claimed defect or nonconformity was caused by the unauthorized or unreasonable use of the vehicle following sale. FIFTEENTH AFFIRMATIVE DEFENSE (Waiver of Right to Restitution/Rescission-Type Damages) 15. As aresult of the Plaintiff’s continued use of the subject vehicle, he/she has waived his/her right to seek restitution or rescission-type damages against Defendant as a matter of law, or as an alternative, Defendant are entitled to an equitable setoff for all use of the vehicle after the discovery of the claimed nonconformity, pursuant to Ibrahim v. Ford Motor Company. SIXTEENTH AFFIRMATIVE DEFENSE (Waiver of Right to Revoke Acceptance) 16. Plaintiff is barred from seeking revocation of acceptance-type damages as he/she has waived his/her right to do so since the tender was untimely and the vehicle was not in substantially the same condition as it was when new. SEVENTEENTH AFFIRMATIVE DEFENSE (Failure to Properly Revoke Acceptance) 17. Plaintiff failed to properly revoke acceptance by either failing to notify within a reasonable amount of time, and/or before substantially altering or changing the product. EIGHTEENTH AFFIRMATIVE DEFENSE (No Privity) 18. Plaintiff’s claims for breach of express and implied warranties and/or revocation type damages are barred because Plaintiff and Defendant(s) were not in privity of contract with each other. 5 ANSWER 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 285 26 277 28 NINTEENTH AFFIRMATIVE DEFENSE (Failure to Provide Reasonable Opportunity to Repair) 19. Plaintiff is precluded from any recovery pursuant to the Song-Beverly Consumer Warranty Act as Plaintiff failed and refused to allow Defendant a reasonable opportunity to repair. TWENTIETH AFFIRMATIVE DEFENSE (Business Use of the Motor home) 20. The Complaint fails as a matter of law due to Plaintiff’s use of the trailer for business purposes and/or the subject vehicle is not a consumer good that is normally used for business purposes. TWENTY-FIRST AFFIRMATIVE DEFENSE (Conditions Beyond Control) 21. The number of days the motor home was at Defendant Lance Campers’ authorized repair facilities for service was due to conditions beyond Defendant’s control and/or Plaintiff authorized or agreed to the number of service days. TWENTY-SECOND AFFIRMATIVE DEFENSE (Offset) 22. Defendant allege that they are owed monies by Plaintiff based upon contractual and/or equitable claims and that said monies owed should set off against any monies allegedly owed by Defendant sand/or Defendant are entitled to a statutory or equitable offset. TWENTY-THIRD AFFIRMATIVE DEFENSE (Arbitration) 23. The Complaint must be dismissed because one of more of the claims are subject to arbitration pursuant to contract or statute. TWENTY-FOURTH AFFIRMATIVE DEFENSE (Adequate Remedy At Law) 24. Plaintiff is not entitled to equitable and/or injunctive relief because there is an adequate remedy at law. 6 ANSWER 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 285 26 277 28 TWENTY-FIFTH AFFIRMATIVE DEFENSE (Uncertain) 31. The Complaint, and each cause of action stated therein, is so vague, ambiguous, unintelligible, uncertain and indefinite that Defendant are unable to understand the full nature and character of the allegations and Defendant is thereby prejudiced in ascertaining all defenses which may be available to them. TWENTY-SIXTH AFFIRMATIVE DEFENSE (Additional Defenses) 32. Defendant alleges that they may have additional defenses that cannot be articulated due to Plaintiff’s failure to particularize his/her claims and failure to provide more specific information concerning the nature of their damage claims. Defendant therefore reserves the right to assert additional defenses as discovery and investigation continue. WHEREFORE, Defendant prays as follows: 1. That Plaintiff takes nothing by way of the complaint on file herein; 2. That judgment be entered in favor of Defendant; % That Defendant be awarded its costs of suit; and, 4. For such other and further relief as the Court may deem just and proper. Dated: February 1,2019 THE AXELSON LAW FIRM By: VINCENT J. AXELSON Attorneys for Defendant PACIFIC COACHWORKS, INC. ANSWER