Watts v. Allstate Indemnity Company et al

MEMORANDUM of POINTS and AUTHORITIES in Support of Motion for Relief from an Order and Final Judgment 266 .

E.D. Cal.June 9, 2011

WENDY C. YORK, SBN 166864 JENNIFER B. EULER, SBN 232378 2 YORK LAW CORPORATION 1111 Exposition Blvd., Bldg. 500 Sacramento, California 95815 4 Telephone: (916) 643-2200 Facsimile: (916) 643-4680 1 3 5 KIMBERLY A. KRALOWEC, SBN 163158 6 ELIZABETH i. NEWMAN, SBN 257329 7 THE KRLOWEC LAW GROUP 188 The Embarcadero, Suite 800 8 San Francisco, California 94105 Telephone: (415) 546-6800 9 Facsimile: (415) 546-6801 10 Attorneys for Plaintiff and the Putative Class 11 12 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA SACRAMENTO DIVISION 13 14 15 16 ROBERT WATTS, on behalf of himself 17 individually and all others similarly situated, 18 19 20 Plaintiffs, vs. ALLSTATE INDEMNITY COMPANY, an 21 Ilinois corporation; ALLSTATE INSURANCE 22 COMPANY, an Ilinois corporation;ALLSTATE PROPERTY AND CASUALTY 23 INSURANCE COMPANY, an Ilinois corporation; and DOES 1 through 100, 24 inclusive, 25 26 27 28 Defendants. CASE NO.: S-08-L877 LKKlGGH MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF'S MOTIONS: (1) FOR RELIEF FROM AN ORDER AND FINAL JUDGMENT (FED. R. CIV. P. 60(b)); (2) FOR LEAVE TO FILE A CORRCTED STATEMENT OF DISPUTED MATERIAL FACTS (FED. R. CIV. P. 56(e)); AND/OR (3) FOR RECONSIDERATION (E.D. CAL. LOCAL RULE 230m) Date: Time: Dept.: Before: July 18,2011 10:00 a.m. Courtroom 4, 15th Floor Hon. Lawrence K. Karlton MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTIONS FOR RELIEF FROM JUDGMENT UNDER FED. R. CIV. PRO. 60(b) AND OTHER RELIEF Case 2:08-cv-01877-LKK-KJN Document 271 Filed 06/09/11 Page 1 of 22 2 3 i. 4 II. 5 6 7 8 III. 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 iv. 26 27 28 TABLE OF CONTENTS Page(s) INTRODUCTION ..........................................................................................................- 1 - LEGAL STANDARDS GOVERNING THESE MOTIONS .........................................- 1 - A. Motion for Relief from Order or Judgment Fed. R. Civ. P. 60(b) ......................- 1 - B. Motion for Leave to File a Corrected Statement of Disputed Material Facts Under Fed. R. Civ. P. 56(e).................................................................................- 2 - C. Motion for Reconsideration Under Local Rule 2300) ........................................- 3 - THE COURT is RESPECTFULLY ASKED TO GRANT PLAINTIFF RELIEF FROM JUDGMENT UNDER RULES 60(B)(1), 56(E) AND 239(1) DUE TO HIS COUNSEL'S EXCUSABLE NEGLECT AND BASED ON NEWL Y- DISCOVERED EVIDENCE ..........................................................................................- 3 - A. This Motion Satisfies All Requirements for Relief Under Rule 60....................- 4 - 1. The Granting of This Motion Wil Not Cause Defendants to Suffer Prejudice..................................................................................................- 4 - 2. Plaintiff Filed His Motion for Relief Without Delay and If Plaintiff s Motion for Relief is Not Granted, Plaintiff s Entire Action Wil Be Dismissed Without A Hearing on Its Merits....... .......... - 5 - 3. Defendants Intentionally Attempted to Overwhelm Plaintiff s Counsel and Thwart Plaintiff s Efforts to Oppose Their Motion for Summary Judgment.................................................................................- 5 - 4. Plaintiff acted in Good Faith in Preparing His Opposition to Defendants' Motion for Summary Judgment.........................................- 7 - B. Absent Plaintiffs Counsel's Excusable Neglect, Plaintiff Would Have Established the Existence of Genuine Issues of Material Fact as to Whether Plaintiff s Seat Belts were Damaged. ......................................... .......... - 8 - C. Newly-Discovered Evidence Creates Genuine Issues of Material Fact as to Whether Allstate Breached Its Policy Obligations by Failing to Replace Plaintiff s Seat Belts Regardless of Proof of Actual Damage........................... - 1 1 - D. Absent Plaintiffs Counsel's Excusable Neglect, Plaintiff Would Have Established the Existence of Genuine Issues of Material Fact to Support Plaintiff s Cause of Action for Fraud and Misrepresentation. .......................... - 12 - CONCLUSION .............................................................................................................- 16 - - 1 - MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTIONS FOR RELIEF FROM JUDGMENT UNDER FED. R. CIV. PRO. 60(b) AND OTHER RELIEF Case 2:08-cv-01877-LKK-KJN Document 271 Filed 06/09/11 Page 2 of 22 1 TABLE OF AUTHORITIES2 Page(s) 3 Cases 4 Ameron Intl Corp. v. Insurance Co. of State of Pennsylvania, 50 Cal.4th 1370, 1378 (2010) ................................................................................................... 11 5 Ashford v. Steuart, 6 657 F.2d 1053, 1055 (9th Cir. 1981)........................................................................................... 5 7 Backlund v. Barnhart, 778 F.2d 1386, 1388 (9th Cir. 1985)........................................................................................... 2 8 Bateman v. u.s. Postal Serv., 9 231 F.3d 1220, 1223 (9th Cir. 2000)...........................................................................................3 10 Bestran Corp. v. Eagle Comtronics, Inc., 720 F.2d 1019 (9th Cir. 1983)..................................................................................................... 3 11 Broncel v. H&R Transport, Ltd., 12 2010 WL 3582492 (E.D. CaL. 2010)........................................................................................... 3 13 Delay v. Gordon, 475 F.3d 1039, 1034 (9th Cir.2007)............................................................................................2 14 Lee v. Equifrst Corp., 15 2011 WL 1584124, *5 (M.D. Tenn. 2011) ................................................................................. 2 16 Lemoge v. United States, 587 F.3d 1188, 1192 (9th Cir. 2009)................................................................................... 3, 4,5 17 Lyons v. Baughman, 18 2007 WL 13 78022, * 3 (E.D. CaL. 2007)..................................................................................... 2 20 19 Mahran v. Benderson Devel. Co., LLC., 2011 WL 2038574, 1 (W.D. N.Y. 2011) .................................................................................... 2 Mainguth v. Packard, 21 2006 WL 1410737, *3 (M.D. Pa. 2006) ..................................................................................... 3 22 Patapoffv. Vollstedts, Inc., 267 F.2d 863,865 (9th Cir. 1959)............................................................................................... 2 23 Pena v. Seguros La Comercial, S.A., 24 770 F.2d 811,814 (9th Cir. 1985)................................................................................................ 2 25 Pioneer Inv. Servs. Co. v. Brunswick Assoc. Ltd., 507 U.S. 380, 394 (1993)........................................................................................................ 3, 4 26 Taylor v. Knapp, 27 871 F.2d 803, 805 (9th Cir. 1989)...............................................................................................2 28 TCI Group Life Ins. Plan v. Knoebber, 244 F.3d 691, 701 (9th Cir. 2001)...............................................................................................4 - 11 - MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTIONS FOR RELIEF FROM JUDGMENT UNDER FED. R. CIV. PRO. 60(b) AND OTHER RELIEF Case 2:08-cv-01877-LKK-KJN Document 271 Filed 06/09/11 Page 3 of 22 1 2 3 4 Statutes and Rules 5 California Eastern District Local Rule 2300) ................................................................ 1,2, 13, 16 6 Federal Rules 56(e) ......................................................................................................... 1,2, 11, 13 7 Federal Rule 59(a)................................................................................................................... 11, 12 8 Federal Rule 59(e) ............................................................................................................ 11, 12, 16 9 Federal Rules 60(b) ........................................................................................... 1,2,4,5, 10, 13, 16 10 Federal Rules 60(c) ......................................................................................................................... 5 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 11 - MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTIONS FOR RELIEF FROM JUDGMENT UNDER FED. R. CIV. PRO. 60(b) AND OTHER RELIEF Case 2:08-cv-01877-LKK-KJN Document 271 Filed 06/09/11 Page 4 of 22 I. INTRODUCTION 2 On April 8, 2011, Defendants filed their Motion for Summary Judgment. Declaration of 3 Wendy C. York fied 6/9/1 1 (hereinafter "York Decl. filed 6/9/1 I" ii 19.) Two weeks later, on April 4 25, 2011, Plaintiff filed his Opposition. Id. ii 19. On May 8, 2011, the motion was heard by the 5 Honorable Judge Karlton. Judge Karlton took the matter under submission and on May 12,2011, 6 entered an Order granting in its entirety Defendant Allstate Indemnity Company's motion for 7 summary judgment of Plaintiffs case. Order filed 05/12/11 (Doc. No. 255) (hereafter "Order"). On 8 the same day, this Court entered judgment for Defendants. Doc No. 256 (hereafter "Judgment"). In 9 this Motion, Plaintiff seeks relief from the Judgment pursuant to Federal Rules 60(b)(1) and 56(e) 10 based on Plaintiff s counsel's negligent omission of supporting facts and evidence as well as 11 California Eastern District Local Rule 2300). 12 Had it not been for Plaintiffs counsel's negligent/careless omission of relevant facts and 13 evidence, Plaintiffs opposition to Defendants' Motion for Summary Judgment would have clearly 14 established genuine issues of material fact exist. Thus, Plaintiff seeks relief and the opportunity to 15 submit a Supplemental Separate Statement of Disputed Facts that establishes, among other things, 16 1) that Plaintiffs seat belts were damaged; 2) that Defendants are obligated to adhere to the auto 17 manufacturer's recommendations in the Honda owner's manuals regarding replacement of seat 18 belts following a collision; and 3) that Defendants had a policy of failing to pay for inspection or 19 repairs to seat belts. 20 H. LEGAL STANDARDS GOVERNING THESE MOTIONS 21 Public policy favors decision of all cases on the merits. Rule 60(b), Rule 56( e), and 22 California Eastern District Local Rule 2300) are remedial measures designed to allow the Court to 23 grant relief to a party who, through negligence or carelessness, omitted facts and evidence 24 necessary for a full hearing and determination based on the merits of the case. All of the 25 prerequisites to granting relief under each Rule are satisfied here. 26 A. Motion for Relief from Order or Judgment Fed. R. Civ. P. 60(b) 27 Rule 60 of the Federal Rules of Civil Procedure provides a means of altering a judgment in 28 limited circumstances. Rule 60(b) provides: - 1 - MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTIONS FOR RELIEF FROM JUDGMENT UNDER FED. R. CIV. P. 60(b) AND OTHER RELIEF Case 2:08-cv-01877-LKK-KJN Document 271 Filed 06/09/11 Page 5 of 22 1 2 3 4 5 6 7 8 9 On motion and upon such terms as are just, the court may relieve a party or a party's legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b)...; or (6) any other reason justifying relief from the operation of the judgment. Fed. R. Civ. P. 60(b). A motion for reconsideration of summary judgment is appropriately brought under Rule 60(b). Taylor v. Knapp, 871 F.2d 803,805 (9th Cir. 1989); Backlund v. Barnhart, 778 F.2d 1386, 1388 (9th Cir. 1985). "Rule 60 regulates the procedures by which a party may obtain relief from a final judgment... The rule attempts to strike a proper balance between the conflcting principles that 10 11 12 13 14 15 16 17 18 19 20 21 22 litigation must be brought to an end and that justice should be done." Delay v. Gordon, 475 F.3d 1039, 1044 (9th Cir. 2007) (citing 11 Charles Alan Wright, Arhur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 2851 (2d ed. 1 995)). "Rule 60(b) is remedial in nature and therefore must be liberally applied." Pena v. Seguros La Comercial, SA., 770 F.2d 811,814 (9th Cir. 1985) (citing Patapoffv. Vollstedts, Inc., 267 F.2d 863,865 (9th Cir. 1959)). Relief under Rule 60(b) is discretionary. Mahran v. Benderson DeveL. Co., LLC. 2011 WL 2038574, 1 (W.D. N.Y. 2011). B. Motion for Leave to File a Corrected Statement of Disputed Material Facts Under Fed. R. Civ. P. 56(e) Federal Rule of Civil Procedure 56(e), as amended in December 2010, provides that "if a party fails to properly address another party's assertion of fact," the court may "give an opportunity to properly support or address the fact." Fed. R. Civ. P. 56(e)(1). "The Advisory Committee's notes to the 2010 amendments state, '(iJn many circumstancesLJ this opportunity will be the court's 23 preferred first step." Lee v. Equifrst Corp., 2011 WL 1584124, *5 (M.D. Tenn. 2011). The relief provided by Rule 56( e) supports the strong public policy favoring hearings on the24 25 26 27 28 merits. In this Court's own words, "(wJhenever it is reasonably possible, cases should be decided on the merits." Lyons v. Baughman, 2007 WL 1378022, *3 (E.D. CaL. 2007) (Karlton, 1.) (quoting Pena v. Seguros La Comercial, SA., 770 F.2d 811,814 (9th Cir. 1985)); see also Fed. R. Civ. Pro. 1 (setting forth Court's duty to "construe(J and administer (its RulesJ to secure the just ... - 2 - MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTIONS FOR RELIEF FROM JUDGMENT UNDER FED. R. CIV. P. 60(b) AND OTHER RELIEF Case 2:08-cv-01877-LKK-KJN Document 271 Filed 06/09/11 Page 6 of 22 1 determination of every action and proceeding" (emphasis added)); Mainguth v. Packard, 2006 WL 2 1410737, *3 (M.D. Pa. 2006) (citing this principle in granting reconsideration). By amending Rule 3 56(e), the Legislature provided this Court with authority to allow a party to remedy its omissions by 4 providing the party the opportunity to properly support any assertion of fact. It is precisely the 5 relief Plaintiff seeks here. Granting Plaintiff the opportunity to support his factual assertions and 6 properly address the facts asserted by Defendants wil result in his claims being heard on the merits, 7 rather than being decided based on an incomplete representation of the facts. 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Motion for Reconsideration Under Local Rule 230mC. Additionally, Local Rule 2300) provides a means for a court to reconsider and change a prior order. Specifically, Local Rule 230(j) requires a party to show "what new or different facts or circumstances are clamed to exist which did not exist or were not shown upon prior motion, or what other grounds exist for the motion" as well as "why the facts or circumstances were not shown at the time of the prior motion." See Broncel v. H & R Transp., Ltd., 2010 WL 3582492 (E.D. CaL. 2010) (granting reconsideration under Rule 230(j) (previously numbered Rule 230(k)). HI. THE COURT IS RESPECTFULLY ASKED TO GRANT PLAINTIFF RELIEF FROM JUDGMENT UNDER RULES 60(B)(I), 56(E) AND 239(J) DUE TO HIS COUNSEL'S EXCUSABLE NEGLECT AND BASED ON NEWLY- DISCOVERED EVIDENCE Excusable neglect includes negligence on the part of counsel as well as omissions caused by carelessness. Pioneer Inv. Servs. Co. v. BrunswickAssoc. Ltd., 507 U.S. 380, 394 (1993); Lemoge v. United States, 587 F.3d 1188, 1192 (9th Cir. 2009); Bateman v. U.S Postal Serv., 231 F.3d 1220, 1223 (9th Cir. 2000). "The determination of whether neglect is excusable 'is at bottom an equitable one, taking account of all relevant circumstances surrounding the party's omission.'" Lemoge, 587 F.3d at 1192 citing Pioneer, 507 U.S at 395. "To determine when neglect is excusable, we conduct the equitable analysis specified in Pioneer by examining 'at least four factors: (1) the danger of prejudice to the opposing party; (2) the length of delay and its potential impact on the proceedings; (3) the reason for the delay; and (4) whether the movant acted in good faith'." Lemoge, 587 F.3d at 1192 citing Bateman, 231 F.3d at 1223-24. - 3 - MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTIONS FOR RELIEF FROM JUDGMENT UNDER FED. R. CIV. P. 60(b) AND OTHER RELIEF Case 2:08-cv-01877-LKK-KJN Document 271 Filed 06/09/11 Page 7 of 22 1 Here, Plaintiffs counsel was negligent and/or careless in the preparation of his opposition to 2 Defendants' Motion for Summary Judgment by failing to properly cite all evidence in support of his 3 Disputed Facts in his Separate Statement of Disputed Facts. Though each of Plaintiffs disputed 4 facts contained citations to supporting evidence, on several occasions the cited evidence was not the 5 most direct evidence nor did it include all evidence supporting Plaintiff s disputed fact. 6 Additionally, Plaintiffs counsel's declaration failed to properly authenticate key pieces of evidence 7 relied upon by Plaintiff in his Opposition, oral argument, and Separate Statement. Finally, 8 Plaintiffs Separate Statement also cited Defendants' Responses to Special Interrogatories, Set One, 9 yet failed to attach said responses as an exhibit for the Court to review. 10 Plaintiffs counsel's omissions were a result of carelessness and/or negligence. Plaintiffs 11 counsel mistakenly believed that despite Defendants' efforts to overwhelm Plaintiff and obstruct his 12 ability to file his opposition, Plaintiffs counsel would be able to take and defend six expert 13 depositions, prepare Plaintiff s Motion for Class Certification, and prepare Plaintiff s Opposition to 14 Defendants' Motion for Summary Judgment. 15 This Motion Satisfies All Requirements for Relief Under Rule 60.A. 16 All of the requirements for relief under Rule 60 identified by the U.S. Supreme Court in 17 Pioneer and the Ninth Circuit in Lemoge have been satisfied in this case. 18 19 20 21 22 23 24 25 26 27 28 1. The Granting of this Motion Wil Not Cause Defendants to Suffer Prejudice. Prejudice requires greater harm than simply that relief would delay resolution of the case. Lemoge, 587 F.3d at 1196 ("(MJerely being forced to litigate on the merits cannot be considered prejudicial for purposes oflifting a defaultjudgment.") (citing TCI Group Life Ins. Plan v. Knoebber, 244 F.3d 691, 701 (9th Cir. 2001)). Defendants have already prepared their Motion for Summary Judgment, have already prepared their reply, and have already taken and defended all necessary depositions in the preparation of their moving papers. Furthermore, as the Judgment was dispositive of all of Plaintiff s claims, Defendants are not subject to any double recovery on the behalf of Plaintiff. Thus, Defendants cannot show that they wil be prejudiced or suffer any tangible harm should Plaintiff s Motion for Reconsideration be granted. - 4 - MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTIONS FOR RELIEF FROM JUDGMENT UNDER FED. R. CIV. P. 60(b) AND OTHER RELIEF Case 2:08-cv-01877-LKK-KJN Document 271 Filed 06/09/11 Page 8 of 22 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. Plaintiff Filed His Motion for Relief Without Delay and If Plaintiff s Motion for Relief is Not Granted, Plaintiffs Entire Action Wil Be Dismissed Without A Hearing on Its Merits. The impact of the Judgment entered by the Court is all-encompassing. The Order granted Defendants' Motion for Summary Judgment in whole and the following Judgment disposed of each of Plaintiffs claims and his case in its entirety. The potential impact of granting Plaintiffs Motion for Relief from Judgment pales in comparison. Should the Court grant Plaintiff s Motion for Reconsideration, Plaintiff would simply be allowed to have his claims heard on their merits. As a result of the Judgment's detrimental consequences to Plaintiff, Plaintiff did not delay in fiing the instant motion. Federal Rule 60(c) requires a motion brought pursuant to Federal Rule 60(b) be brought "within a reasonable time" and in no event "no more than a year after the entry of the judgment or order or the date of the proceeding." Fed. Rule Civ. Proc. 60(c). "What constitutes 'reasonable time' depends upon the facts of each case, taking into consideration the interest in finality, the reason for delay, the practical ability of the litigant to learn earlier of the grounds relied upon, and prejudice to the other parties." Lemoge, 587 F.3d at 1196 (citing Ashford v. Steuart, 657 F.2d 1053, 1055 (9th Cir. 1981) (per curiam)). Here, Plaintiff fied his Motion for Reconsideration within 28 days from the date of judgment. Plaintiff did not delay in filing the motion and Defendants will suffer no prejudice. 3. Defendants Intentionally Attempted to Overwhelm Plaintiffs Counsel and Thwart Plaintiffs Efforts to Oppose Their Motion for Summary Judgment. On July 27,2010, this Court issued a scheduling order setting a deadline of April 30, 2011 for Plaintiff to fie his class certification motion, and a February 15,2012 deadline for hearing on all other law and motion matters, including summary judgment motions. Order fied July 27, 2010, iiii 4-6 (Dock. No. 143). On April 4, 2011, Defendants, without first noticing any depositions, moved the Court, ex parte for an order compelling the deposition of Plaintiff s experts. York Decl. filed 6/9/11 ii 4. i During the hearing on April 7, 2011, Defendants made it The facts in this section are also confirmed in the Declaration of Jennifer B. Euler, fied concurrently herewith ("Euler Decl. fied 6/9/11 "), iiii 2-5. - 5 - MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTIONS FOR RELIEF FROM JUDGMENT UNDER FED. R. CIV. P. 60(b) AND OTHER RELIEF Case 2:08-cv-01877-LKK-KJN Document 271 Filed 06/09/11 Page 9 of 22 1 clear that they wanted to take the depositions of Plaintiffs experts prior to the April 30 deadline 2 for Plaintiffs class certification motion. Unbeknownst to the Court and Plaintiffs counsel, 3 Defendants also planned to serve a Motion for Summary Judgment the following day. Defendants 4 failed to disclose this important information to the Court or Plaintiff s counsel at any time before 5 or during the April ih ex parte hearing. Id. ii 8. On or about 4:08 p.m. on Friday, April 8, 2011, 6 Defendants fied an extensive summary judgment motion. Id. ii 9. Plaintiffs counsel did not 7 actually become aware of Defendants' Motion for Summary Judgment until Monday, April 11, 8 2011 as York Law Corporation's attorneys and Offce Manager were attending an off-site attorney 9 meeting without access to email.ld. ii 10. The hearing on the Defendants' Motion for Summary 10 Judgment was scheduled unilaterally by Defendants for May 8, 2011, making Plaintiffs 11 Opposition due no later than April 25, 2011, merely four days before Plaintiffs deadline to fie 12 his Motion for Class Certification and also in the middle of Magistrate Newman's order of April 13 7,2011 requiring expert depositions to be completed by April 30, 2011. Id. ii 11. Given the 14 Court's scheduling order issued in July 2010, defendants were well aware that Plaintiff would be 15 fully occupied preparing his class certification motion during this timeframe. Id. ii 12. 16 On Monday, April 11,2011, in compliance with Magistrate Newman's order dated April 17 8th, Court Order (Dock. No. 200.), the paries participated in a conference call to schedule the 18 taking of experts' depositions. During the April 11th call, Plaintiff provided Defendants with 19 available dates for Plaintiffs' experts prior to April 30, 2011. York Decl. fied 6/9/1 1 ii 13. The 20 depositions of Plaintiffs experts were then scheduled as follows: (1) Ken Klein on April 26th in 21 Elgin, Ilinois; James Mathis on April 2ih in Sacramento, California; and (3) Sandy Browne on 22 April 28th in Valencia, California. Id. ii 14. To attend these depositions, Plaintiffs counsel was 23 forced to fly to Ilinois a day in advance of the deposition due to time zone differences and flight 24 schedules. Id. Thus, on Monday, April 25th, Plaintiffs counsel lost a day due to traveling in 25 order to attend Mr. Klein's deposition on April 26, 2011. Id. Plaintiffs counsel then immediately 26 returned to Sacramento by April 2ih for the expert deposition ofMr. Mathis, and then flew to 27 Valencia, California on April 28th for the expert deposition of Sandy Browne. Id. 28 - 6 - MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTIONS FOR RELIEF FROM JUDGMENT UNDER FED. R. CIV. P. 60(b) AND OTHER RELIEF Case 2:08-cv-01877-LKK-KJN Document 271 Filed 06/09/11 Page 10 of 22 1 During the April 1 1, 201 1 conference call regarding scheduling of expert depositions, 2 Defendants refused to provide dates for its three experts until after Plaintiff gave dates for his 3 experts. York Decl. filed 6/9/1 1 ii 15. Two of the defense expert depositions were scheduled 4 during the week of April 18th - the week in which Plaintiff s counsel were now forced to prepare 5 Plaintiffs opposition to Defendants' motion for summary judgment and his class certification 6 motion. Plaintiff reluctantly agreed to two of the dates set forth by Defendants and only because 7 Defendants asserted those were the only dates the experts would be available. Id. As a result of 8 Defendants' strategic maneuvering, Plaintiffs counsel was forced to travel to Chicago on April 9 20th to be able to take the deposition of defense expert Anthony Passwater on the morning of April 10 21st, and then immediately fly to Phoenix on Friday, April 22nd for defense expert Daniel Davee's 1 1 deposition. Id. All five of the aforementioned depositions took place during the two-week time 12 frame in which Plaintiffs counsel had to prepare his opposition to Defendants' Motion for 13 Summary Judgment and the two weeks prior to Plaintiffs deadline to fie his Motion for Class 14 Certification. 15 Defendants voluntarily elected to fie an extensive summary judgment motion and 16 knowingly set the motion for hearing so Plaintiffs opposition would be due four days before his 17 class certifcation motion was due pursuant to the Cour's July 2010 order. It is clear that 18 Defendants' strategic timing was aimed at overwhelming Plaintiffs counsel in an attempt to 19 impair Plaintiffs ability to file his opposition to Defendants' Motion for Summary Judgment. 20 Despite the obstacles put in place by Defendants, Plaintiffs counsel diligently worked to 21 oppose Defendants' Motion for Summary Judgment. In the end, however, Defendants' 22 gamesmanship prevailed and Plaintiffs counsel was left with insufficient time to properly oppose 23 Defendants' motion. 24 25 26 27 28 4. Plaintiff acted in Good Faith in Preparing His Opposition to Defendants' Motion for Summary Judgment. Plaintiff and Plaintiff s counsel diligently worked to prepare Plaintiff s Opposition to Defendants' Motion for Summary Judgment. However, as outlined above, Plaintiffs counsel was unable to fully prepare and finalize his Opposition while also traveling around the country to take - 7 - MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTIONS FOR RELIEF FROM JUDGMENT UNDER FED. R. CIV. P. 60(b) AND OTHER RELIEF Case 2:08-cv-01877-LKK-KJN Document 271 Filed 06/09/11 Page 11 of 22 1 or defend five separate depositions and prepare Plaintiffs Motion for Class Certification. 2 Plaintiffs omissions were the result of negligence and carelessness, not wilfulness or deviousness. 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 Absent Plaintiffs Counsel's Excusable Neglect, Plaintiff Would Have Established the Existence of Genuine Issues of Material Fact as to Whether Plaintiffs Seat Belts were Damaged. B. As the Court's Order explains, Plaintiffs insurance policy obligated Allstate to" pay for direct and accidental loss to (PlaintiffsJ insured auto... from a collsion with another object." Order at 10:11-14 (quoting Policy 18, Pl.'s Ex. A, ECF No. 211-1 (emphasis in original)). Allstate reserved the option of "pay(ingJ for the loss in money," or "repair(ingJ or replac(ingJ the damaged property." Id. at 10:13-15 (quoting Policy 21 (emphasis and alterations in original)). To determine whether Allstate breached its obligations under the policy, the Court first turned to the question of whether the record contained evidence that Plaintiff s seat belts were damaged in the accident. Order at 1 1 - 1 3. The Court quoted extensively from the declaration of Defendants' expert, Mr. Daniel Davee, who declared that Plaintiff s seat belts were not damaged. Id. at 1 1 :23- 1 2: 1 5. Then, the Court addressed "two pieces of evidence" that "Plaintiff cites ... in an attempt to rebut" Mr. Davee's declaration. Id. at 12:16-17 (citing Pl.'s Response to Def.'s Statement of Undisputed Facts ii 44). The Court found two pieces of evidence-namely Geanina Watts' testimony that her seat belt "got stuck... was very loose and (wouldJ not go back" and expert James Mathis' testimony relying on the same-failed to establish a triable issue as to whether the seat belts were damaged. I d. at 12: 16-13: 1 8. It appears that the Court considered only those two pieces of evidence because those were the only ones cited in Plaintiffs Response to Defendant's Separate Statement of Undisputed Material Facts (Dock. No. 220). See Order at 12:16-17 (citing Plaintiffs Response at ii 44). However, Plaintiff timely filed, and the record contained, additional evidence that the seat belts were damaged. Due to Plaintiffs counsel's excusable neglect, citations to that additional evidence were inadvertently not included in Plaintiffs Response to Defendant's Separate Statement. The record contained the Declaration of Sandy Browne in Opposition to Defendants' Motion for Summary Judgment or Partial Summary Judgment, fied Apr. 24, 2011 (Dock. No. 232) - 8 - MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTIONS FOR RELIEF FROM JUDGMENT UNDER FED. R. CIV. P. 60(b) AND OTHER RELIEF Case 2:08-cv-01877-LKK-KJN Document 271 Filed 06/09/11 Page 12 of 22 1 ("Browne Decl."). Ms. Browne-an expert with over 44 years of experience in vehicle occupant 2 safety and restraint systems (Browne Decl. iiii 2- 1 2)-testified that "the seat belt systems (in 3 Plaintiffs vehicle) were compromised and should have been replaced." Id. ii 30. Ms. Brown 4 explained that during the collsion, the seat belts in Plaintiff s vehicle locked and took on 5 significant force. Id. iiii 29, 30. The collision loaded the seat belts, stretching and elongating the 6 seat belt webbing. Id. ii 30. Once loaded, seat belt webbing "does not return to its previous 7 elasticity," and the functionality ofthe seat belt cannot be guaranteed for any future collision. Id. 8 iiii 22-30; Brown Depo., 70:7-13, 70:19-24. Ms. Brown's testimony establishes that Plaintiffs seat 9 belts incurred damage as a result of the collision, or at a minimum, creates a triable issue of 10 material fact on that question. 11 Ms. Brown also described the flaws in Mr. Davee's purported conclusions. Brown Decl iiii 12 31-45. At the very least, this demonstrates further genuine issues of material fact as to whether 13 Plaintiffs seat belts were damaged. For example, Mr. Davee evaluated the seat belt webbing by 14 measuring the length of the webbing and correlating it to an exemplar belt. Id. ii 41. However, Ms. 15 Brown explains that measuring the webbing is useless unless one knows the length of the webbing 16 before the collsion, which Mr. Davee did not. Id. Without the pre-crash measurement of the exact 17 belt-which varies based on manufacturing variability and normal usage-comparing the belt to an 18 exemplar belt cannot reliably indicate whether the webbing did not stretch. Id. Similarly, Mr. 19 Davee's assessment of the seat belt assemblies, retractors and anchors was inadequate to determine 20 whether the seat belts were damaged. He admits that he inspected the seat belts after they were 21 removed from the vehicle. As such, he could not inspect the area where the anchors were bolted 22 into the car and could not check for signs of stress at the anchorage site. Id. ii 45. He failed to 23 perform a dynamic check of the seat belts, which requires driving the vehicle with the seat belts 24 installed, and failed to inspect the tensioners while they were connected to the vehicle's electronic 25 control module. Id. Ms. Brown's testimony demonstrates that Mr. Davee failed to adequately 26 inspect the seat belts, thus the bases for his opinions are fundamentally flawed. 27 Ms. Browne also viewed the testimony of Geanina Watts as further reliable evidence that 28 the seat belts were damaged. Browne Decl., ii 30. The Court declined to rely on the testimony of - 9 - MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTIONS FOR RELIEF FROM JUDGMENT UNDER FED. R. CIV. P. 60(b) AND OTHER RELIEF Case 2:08-cv-01877-LKK-KJN Document 271 Filed 06/09/11 Page 13 of 22 1 plaintiffs expert Mr. Mathis on the same point because he "does not claim to have (theJ technical 2 expertise" to evaluate seat belt damage. Order at 13: 14. However, Ms. Browne does. 3 Ms. Browne also determined that in light of the manufacturer's recommendations contained 4 in the 2005 Honda Civic Owner's manual, which she reviewed, the seat belts should be deemed 5 damaged. Browne Decl., ii 23 (citing Owners' Manual, Ex. J to Declaration of Wendy C. York in 6 Support of Plaintiffs Opposition to Defendants' Motion for Summary Judgment or Partial 7 Summary Judgment, fied Apr. 25, 2011 (Dock. No. 211) (hereafter "York 04/25/11 Decl.")). That 8 manual states that "'if a seatbelt is worn during a crash, it must be replaced the dealer. A belt that 9 has been worn during a crash may not provide the same level of protection in a subsequent crash. '" 10 Id. (quoting Owners' Manual). The Honda Seatbelt Installation Instructions provided further 11 evidence in support of Ms. Browne's conclusion that the seat belts should be deemed damaged. Id. 12 ii 24 (citing Installation Instrs., Ex. K to York 04/25/1 1 Decl.). Ms. Browne also testified that the 13 Allstate's own training materials, which she reviewed, reference the Owner's Manual as a source to 14 refer to for guidance on seat belt replacement, supports the conclusion that the seat belts should be 15 deemed damaged. Id. ii 25 (citing Ex. P to York 04/25/11 Decl.). Finally, Ms. Browne testified 16 that I -CAR "teaches the collision repair industry to follow the manufacturer recommendations 17 regarding seatbelt replacement when handling collision repair claims." Id. (citing Exs 0 and R to 18 04/25/1 1 Decl.). Collectively all of these materials mean that the seat belts in Plaintiffs vehicle 19 should be "deemed damaged." Id. ii 26. 20 The Court's order notes that the record contained "no declaration by Plaintiff that the 21 exhibits (fied in opposition to the motionJ were produced by defendant in discovery" or otherwise 22 authenticated. Order at 16, n.5. That was due to counsel's excusable neglect. Euler Decl. filed 23 6/9/11, iiii 4-5. The authentication errors have now been corrected. See id. iiii 7-10. (providing 24 proper authentication for all exhibits filed with original summary judgment opposition). 25 Plaintiff respectfully asks the Court to grant relief under Rule 60(b) in the interest of justice 26 and fairness to Mr. Watts, whose counsel alone were responsible for the deficiencies in his 27 opposition papers. Plaintiff respectfully asks the Court to reconsider its ruling in light of Ms. 28 Browne's testimony, as well as other evidence that was timely filed but not properly cited and/or - 10 - MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTIONS FOR RELIEF FROM JUDGMENT UNDER FED. R. CIV. P. 60(b) AND OTHER RELIEF Case 2:08-cv-01877-LKK-KJN Document 271 Filed 06/09/11 Page 14 of 22 1 authenticated in Plaintiff s opposition papers, and to permit Plaintiff to fie a Corrected Response 2 citing Ms. Browne's testimony and other relevant record evidence under Rule 56(e). All of this 3 evidence creates a genuine dispute of material fact as to Plaintiff s claim for breach of contract 4 (first cause of action) and thus for Plaintiffs bad faith claims (second and third causes of action) as 5 welL. 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 C. Newly-Discovered Evidence Creates Genuine Issues of Material Fact as to Whether Allstate Breached Its Policy Obligations by Failng to Replace Plaintiffs Seat Belts Regardless of Proof of Actual Damage. In its Order, the Court next turned to the question of "whether the defendant breached its obligations by failing to pay to have the seatbelts replaced even if they were undamaged." Order at 13:21-22. As the Court observed, Plaintiff argued that "Allstate was obligated to adhere to the recommendations in the owner's manual when determining the cost of 'loss' to the automobile, and that in this case, those recommendations required replacement of the seatbelts following an accident." Id. at 13:23-14:1. The Court held that "such an obligation may be present" if the evidence showed that Allstate believed that policyholders would expect it to adhere to the owner's manual's recommendations when restoring a vehicle to its pre-accident condition. Id. at 14:13-24 (emphasis added) (citing Ameron Int'l Corp. v. Insurance Co. of State of Pennsylvania, 50 CaL. 4th 1370, 1378 (2010)). The Court found the evidence presented in opposition to the motion insuffcient to create a triable issue of material fact on this point. Id. at 14:25- 1 7: 1. As discussed in detail in the accompanying memorandum of points and authorities in support of Plaintiffs motion for a new trial under Rule 59(a) and to alter or amend the judgment under Rule 59(e), newly-discovered evidence in the form of the testimony of Defendants' designated expert, Mr. Robert Lange, creates a triable issue of fact on this question. As explained in that memorandum (at pp. 5-10.), Mr. Lange testified that when the manufacturer's service manual is silent on the subject of seat belt inspection or replacement following a collision, then the collsion repair industry should refer to the owner's manual to determine how to restore a vehicle to its pre-accident condition. York Decl. filed 6/9/11 ii 18 & Ex. H (Lange Depo. at 149:1-14,211:19- 212:2). The service manual for Plaintiffs Honda is silent with respect to seat belt inspection or - 11 - MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTIONS FOR RELIEF FROM JUDGMENT UNDER FED. R. CIV. P. 60(b) AND OTHER RELIEF Case 2:08-cv-01877-LKK-KJN Document 271 Filed 06/09/11 Page 15 of 22 1 replacement in collsions in which the supplemental restraint systems are not activated. Id.; Lange 2 Depo. at 169:24-170:12. Accordingly, the Honda owner's manual should have been consulted. Id.; 3 Lange Depo. at 149:1-14,211:19-212:2. 4 The Court is respectfully asked to grant relief under Rule 60(b)(2) based on this newly- 5 discovered evidence. Plaintiff incorporates by reference the arguments regarding Mr. Lange's 6 testimony set forth in the accompanying motion for relief under Rules 59(a) and 59(e) (at pp. 5-15). 7 As discussed in that motion (at pp. 10-13.) and in the accompanying declaration of Wendy York (i¡ 8 17), Mr. Lange's deposition testimony was not available when Plaintiff s opposition to the 9 summary judgment motion was due and was filed. As also discussed in that motion (at pp. 5- 1 0), 10 Mr. Lange's testimony creates a triable issue of material fact suffcient to defeat summary judgment 1 1 of Plaintiff s first, second, third, and fifth causes of action. 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 D. Absent Plaintiffs Counsel's Excusable Neglect, Plaintiff Would Have Established the Existence of Genuine Issues of Material Fact to Support Plaintiffs Cause of Action for Fraud and Misrepresentation. In analyzing Plaintiff s cause of action for fraud and misrepresentation, the Court reiterated that proof that '" Allstate had an established and uniform policy of refusing to pay for repairs to seat belts,' could support an inference that Allstate entered into contract with the intent of not performing its obligations." Order at 20:1 1-14 (quoting March 31,2009 Order 21, ECF No. 66). "Therefore, the Court looks for evidence of an established and uniform policy of refusing to pay for repairs to seatbelts." Id. at 20:14-16. The Court quoted the declaration of Allstate Claims Project Manager Robert Howell, who testified that "Allstate has paid to replace seatbelts on hundreds or thousands of first party auto claims in California during the past five years." Id. at 20:16-23. In his written opposition, Plaintiff cited Defendants' Responses to Special Interrogatories Number 2 and 3, where Defendants state that Allstate paid for inspection or replacement of seat belts in fewer than 1 % of the 135,000 claims submitted in California each year. As the Court observed in its Order, however, these interrogatory responses did "not appear in Plaintiffs Index of Evidence in Support of Plaintiffs Opposition to Allstate's Motion for Summary Judgment." Order at 21: 1 -5. Due to Plaintiff s counsel's excusable neglect, these interrogatory responses were - 12 - MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTIONS FOR RELIEF FROM JUDGMENT UNDER FED. R. CIV. P. 60(b) AND OTHER RELIEF Case 2:08-cv-01877-LKK-KJN Document 271 Filed 06/09/11 Page 16 of 22 1 inadvertently not referenced in the Index of Evidence or attached to any declaration. Euler Decl. 2 filed 6/9/1 1 ii 5. To rectify the error, a copy of the missing interrogatories are filed herewith. Id. 3 Ex. C. 4 Allstate's interrogatory responses directly refute Mr. Howell's testimony. They state that 5 Allstate has paid for inspection or replacement of seat belts in fewer than 1 % of the 135,000 claims 6 submitted in California each year. They create a genuine issue of material fact as to whether 7 Allstate has "an established and uniform policy of refusing to pay for repairs to seatbelts." Order at 8 20: 1 5- 1 6. Plaintiff respectfully requests that the Court grant relief under Rules 60(b), 56( e), and 9 230(j), and consider these interrogatory responses. 10 Additionally, Plaintiffs expert Sandy Browne testified that Mr. Howell's testimony was 11 insuffcient to rebut the conclusion, drawn from other record evidence, that Allstate does not in fact 12 "pay for any physical damage sustained by the seatbelts in an insured vehicle as a result of a 13 covered collision," as Mr. Howell claims. Browne Decl. ii 67. Ms. Browne examined Allstate's 14 seat belt inspection methods in detail, and testified that they are not sufficient to determine whether 15 the seat belts have in fact been damaged and should be replaced. Id. iiii 46-52 L & Ex. B. Ms. 16 Browne also testified that the cursory "inspection" Allstate performed of the seat belts in Plaintiff s 17 vehicle was woefully insufficient to detect actual damage. Id. iiii 53-66. Accordingly, as Ms. 18 Browne explained, Mr. Howell's testimony indicates only that Allstate may have replaced some 19 seat belts with obvious physical damage. Id. ii 67. Because Allstate fails to employ adequate 20 inspection methods, Allstate's established and uniform policy is neither to adequately inspect for 21 damage, nor to repair most actually damaged seat belts. See id. 22 As discussed above, Ms. Browne's declaration was timely fied, but due to excusable 23 neglect, it was inadvertently not cited in Plaintiffs Response to Defendant's Statement of 24 Undisputed Facts. Again, Plaintiff respectfully asks the Court to grant relief under Rules 60(b), 25 56(e), and 230(j), so as not to punish Mr. Watts for his counsel's excusable neglect. 26 The Court then observed that "in his opposition to defendant's motion for summary 27 judgment, plaintiff does not cite any evidence of such a policy" (that is, a "uniform policy by 28 Allstate of refusing to pay for repairs to seatbelts"). Order at 2 1 :9- 1 0 (emphasis in original). Once - 13 - MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTIONS FOR RELIEF FROM JUDGMENT UNDER FED. R. CIV. P. 60(b) AND OTHER RELIEF Case 2:08-cv-01877-LKK-KJN Document 271 Filed 06/09/11 Page 17 of 22 1 again, however, this is presumably because Plaintiffs counsel failed to include citations to 2 additional evidence in Plaintiffs Response to Defendant's Statement of Undisputed Facts. This, 3 too, was due to excusable neglect. The record was, and is, replete with evidence of such a policy. 4 Citations to that evidence are provided now in Plaintiffs proposed Corrected Statement of Disputed 5 Material Facts, fied concurrently herewith. To summarize: 6 Allstate's automated estimating and claims handling software prohibits inclusion of the 7 necessary cost of parts and labor for the inspection and replacement of seat belts in estimates 8 prepared by Allstate's auto property adjusters. Allstate uniformly utilizes software that prohibits 9 including the cost of labor or parts necessary to inspect and replace seat belts. Neither the Legacy 10 Claim Portfolio nor the NexGen computer software utilized uniformly by all Allstate's auto 11 property adjusters include seat belts as a defined area of damage. Kelsh Depo. 73 :5-7 (Index of 12 Evidence filed 04/25/1 1, Ex. K). In addition, the Audatex estimating software and its precursor, 13 PenPro, do not have pre-defined labor operations for the inspection or replacement of seat belts. 14 Lowell Depo 31 :2- 11,31 :21-32:3 (Index of Evidence filed 04/25/11, Ex. 0). The Audatex 15 software does not prompt an estimator to inspect seat belts (Lencioni Depo. 180: 13-23 (Index of 16 Evidence fied 04/25/11, Ex. E)) nor does it provide a matrix indicating what parts of a seat belt 17 must be inspected or replaced following a collision where airbags do not deploy. Lencioni Depo. 18 121:25-122:12 (Index of Evidence fied 04/25/1 1, Ex. E). Thus, Allstate had no intention of 19 honoring its contractual responsibilities with regard to inspection, repair or replacement of the 20 seatbelt system. Declaration of James Mathis filed Apr. 24,2011 (Dock. No. 232) iiii 89-97. While 21 The evidence also establishes triable issues of fact that Allstate committed fraud by 22 omission. As established by Plaintiffs expert James Mathis, the insurance policy is a contract of 23 adhesion where Allstate is in a superior position of authority and bargaining; thus, Allstate owes a 24 heightened duty to their policyholders. Mathis Decl. ii 89. In light of this unequal bargaining 25 power, the insured has no choice but to depend on the good faith and performance of the insurer. 26 Id. Allstate assured policyholders and potential policyholders that Allstate would restore their 27 vehicles to their pre-accident condition. Mathis Decl. ii 90. Instead, Allstate instituted systems in 28 which necessary safety components, such as seatbelts, were not being inspected, tested or replaced. - 14 - MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTIONS FOR RELIEF FROM JUDGMENT UNDER FED. R. CIV. P. 60(b) AND OTHER RELIEF Case 2:08-cv-01877-LKK-KJN Document 271 Filed 06/09/11 Page 18 of 22 1 Mathis Decl. ii 91. In so doing, Allstate placed its interests for profit above concern for safety and 2 the policyholders' rights under the policy. Id. Allstate concealed and misrepresented its practice of 3 refusing to properly inspect and repair seatbelts in order to sell said policy to the California public. 4 Mathis Decl. ii 92. Additionally, Allstate's standardized estimates fail to inform policyholders of 5 the dangers associated with failing to properly inspect or replace seatbelts. Mathis Decl. ii 93. 6 Allstate could have warned of these dangers using boilerplate language in the Allstate standardized 7 estimates, similar to the way in which insurers warn about using non-OEM parts. Mathis Decl. ii 8 93; Ex. A. (York 04/25/11 Decl.J, ii 6 (pp. A0024-A0025). Without warning its policyholders of 9 the risks associated with a failure to inspect seat belts, Allstate withholds necessary information that 10 is material to the insured's understanding of their rights under the insurance policy. Mathis Decl. ii 11 94. 12 Additionally, the evidence shows that Allstate's marketing materials further perpetuate 13 Allstate's fraud and misrepresentation. Mathis Decl. ii 95. Allstate's marketing materials boast: 14 "you're in GOOD HANDS with Allstate," yet are silent as to Allstate's position on repair and 15 inspection of seatbelts. Id. Allstate's scheme to deceive policyholders was conceived solely for the 16 purpose of profiting and at the risk of injury and possible death to its policyholders and the general 17 public by cutting the cost of repairing vehicles. Mathis Decl. ii 96. Mr. Mathis further testified as to 18 the fraud perpetrated upon Ms. Watts by Allstate's deceptive practices. Mathis Decl. iiii 95-97. 19 Based on Mr. Mathis' expert review, Allstate's fraudulent marketing materials induced Mr. Watts 20 to obtain an insurance policy with Allstate. Mathis Decl. ii 97. Through said marketing materials, 21 Mr. Watts believed that if his vehicle were involved in an accident, his vehicle, including his seat 22 belts, would be inspected and restored to a pre-loss condition. Mathis Decl. ii 97. In fact, Mr. 23 Watts' was not wrong in so expecting. Thomas M. Perrett, Senior Performance Specialist and 24 Trainer at Allstate's Tech-Cor, testified that inspection of the seat belt systems following a collision 25 would be covered in direct or accidental loss under the policy. Mathis Decl. ii 97; Index of 26 Evidence filed 04/22/11, Ex. F (Perrett DepoJ 231 :5-1 1. Unfortunately, Mr. Watts' expectations 27 were dissolved when-despite months of premium payments-Allstate denied his request for a seat 28 belt inspection and he was forced to purchase replacement seat belts out of pocket. Rather than - 15 - MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTIONS FOR RELIEF FROM JUDGMENT UNDER FED. R. CIV. P. 60(b) AND OTHER RELIEF Case 2:08-cv-01877-LKK-KJN Document 271 Filed 06/09/11 Page 19 of 22 1 receiving the benefits he was due under the policy, Mr. Watts was left unprotected and forced to 2 purchase seat belts independently so as to ensure his safety and the safety of the occupants of his 3 vehicle. As such, Plaintiff presented triable issues of material fact establishing that Plaintiff 4 suffered harm from Allstate's fraud. 5 In its Order, the Court held that "plaintiff in this case cannot prove any damages from 6 Allstate's allegedly fraudulent statements" based on its earlier determination that "Mr. Watts' 7 vehicle was indeed restored to its pre-loss condition (becauseJ the seatbelts were undamaged." 8 Order at 21 :16-17,22:1-3. However, as explained above, Ms. Browne's declaration, coupled with 9 other evidence, shows that Mr. Watts' seatbelts were damaged and should have been replaced, 10 creating a genuine issue of fact on that point. This declaration likewise creates a genuine issue of 11 fact as to whether Plaintiff suffered damage from Allstate's fraud. 12 The above evidence establishes genuine issues of material fact to support Plaintiff s fraud 13 cause of action. In the interest of justice, Plaintiff respectfully requests relief under Rule 60(b), 14 along with permission to fie corrected Statements to reflect the evidence timely filed with his 15 Opposition, under Rule 56( e). 16 iv. CONCLUSION 17 Defendants' gamesmanship and Plaintiffs counsel's excusable neglect should not bar 18 Plaintiff from presenting his facts and evidence to the Court for consideration. For the reasons 19 discussed above, Plaintiff respectfully asks the Court to grant relief under Rule 60(b), permit the 20 filling of corrected Statements under Rule 56( e), and/or grant reconsideration under Local Rule 21 230(j). Plaintiff further respectfully asks the Court to enter a new and different order denying 22 / / / / 23 / / / / 24 / / / / 25 / / / / 26 / / / / 27 II II 28 II II - 16 - MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTIONS FOR RELIEF FROM JUDGMENT UNDER FED. R. CIV. P. 60(b) AND OTHER RELIEF Case 2:08-cv-01877-LKK-KJN Document 271 Filed 06/09/11 Page 20 of 22 1 Allstate's motion for summary judgment ofplaintiffs breach of contract, insurance bad faith, fraud, 2 and UCL claims (Plaintiffs first, second, third, fourth and fifth causes of action). Respectfully submitted,3 Dated: June 9, 2011 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 C(ltl '. By: Wendy C. York (SBN 166864) Jennifer B. Euler (SBN 232378) YORK LAW CORPORATION Kimberly A. Kralowec (SBN 163158) Elizabeth i. Newman (SBN 257329) THE KRALOWEC LAW GROUP Attorneys for Plaintiff Robert Watts and the Putative Class - 17- MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTIONS FOR RELIEF FROM JUDGMENT UNDER FED. R. CIV. P. 60(b) AND OTHER RELIEF Case 2:08-cv-01877-LKK-KJN Document 271 Filed 06/09/11 Page 21 of 22 2 COURT: CASE NO. CASE NAME: United States District Court for the Eastern District of California 2:08-CV-OI877-LKK-GGH Robert Watts v. Allstate Indemnity Company, et aL. 3 PROOF OF SERVICE 4 5 I am a citizen of the United States, employed in the County of Sacramento, State 0 California. My business address is 1111 Exposition Boulevard, Building 500, Sacramento C 95815. I am over the age of 18 years and not a party to the above-entitled action. 6 7 I am readily familiar with York Law Corporation's practice for collection and processin of correspondence for mailing with the United States Postal Service. Pursuant to said practice, each document is placed in an envelope, the envelope is sealed, the appropriate postage is place thereon and the sealed envelope is placed in the offce mail receptacle. Each day's mail i collected and deposited in a U.S. mailbox at or before the close of each day's business. (CC Section 1013a(3) or Fed.R.Civ.P.5(a) and 4.1; USDC (E.D. CA) L.R. 5-135(a).) 8 9 10 11 On June 9, 2011, I caused the within, MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF'S MOTIONS: (1) FOR RELIEF FROM AN ORDER AND FINAL JUDGMENT (FED. R. CIV. P. 60(B)); (2) FOR LEAVE TO FILE A CORRCTED STATEMENT OF DISPUTED MATERIAL FACTS (FED. R. CIV. P. 56(E)); AND/OR (3) FOR RECONSIDERATION (E.D. CAL. LOCAL RULE 230(1)), to be served via 12 13 14 xx By E-Mail / Electronic Transmission-- Based on a court order or an agreement of the parties to accept service bye-mail or electronic transmission I caused the documents to be sent to the persons at the e-mail addresses listed below: I did not receive within a reasonable time after the transmission, any electronic message or other indication that th transmission was unsuccessful: 15 16 17 Sonia Martin, Esq. SNR Denton US LLP 525 Market St 26FL San Francisco, CA, 94105-2708 18 19 20 Mark Hanover SNR Denton US LLP 7800 Sears Tower, 233 South Wacker Dr. Chicago, IL 60606-6404 21 22 23 Kimberly A. Kralowec THE KRALOWEC LA W GROUP 188 The Embarcadero, Suite 800 San Francisco, California 94105 24 25 26 27 I declare that I am employed in the office of a member of the bar of this Cour at whos direction the service was made and that this Declaration is executed on June 9, 2011 a Sacramento, California. I declare under penalty of perjury under the laws of the State 0 California that the foregoing is true and correct.28 Proof Of Service - 1 Case 2:08-cv-01877-LKK-KJN Documen 271 Filed 06/09/11 Page 22 of 22