Wyer v. Tesla, Inc. et al. Document 37

California Court of Appeals
Case No. G062810
Filed January 19, 2024

Motion filed.: Respondent's motion to strike appellant's extra record documents and portions of appellants reply brief

BackBack to Wyer v. Tesla, Inc. et al.

Tags No tags have been applied so far. Sign in to add some.

  Formatted Text Tab Overlap Raw Text Right End
Page 1 Court of Appeal, Fourth Appellate District, Division Three
Brandon L. Henson, Clerk/Executive Officer
Electronically RECEIVED on 1/19/2024 at 10:39:11 AM
Court of Appeal, Fourth Appellate District, Division Three
Brandon L. Henson, Clerk/Executive Officer
Electronically FILED on 1/19/2024 by Lilian De La Torre, Deputy Clerk
GIN THE COURT OF APPEAL
OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
DAVID WYER
Plaintiff and Appellant,
v.
TESLA, INC., et al.
Defendants and Respondents.
On Appeal From the Superior Court for the State of California,
County of Orange, Case No. 30-2019-01118759-CU-OE-WJC
Hon. Richard Lee
RESPONDENTS’ MOTION TO STRIKE APPELLANT’S EXTRARECORD DOCUMENTS AND PORTIONS OF APPELLANT’S
REPLY BRIEF
BURKE, WILLIAMS & SORENSEN, LLP
*Cheryl Johnson-Hartwell (SBN 208880)
Keiko J. Kojima (SBN 206595)
cjohnson-hartwell@bwslaw.com
kkojima@bwslaw.com
444 South Flower Street, Suite Los Angeles, California 213-236-Attorneys for
DEFENDANTS/RESPONDENTS TESLA, INC., CHRISTOPHER ROLLINS,
and CARSON SCHAFER
4883-9737-9230v
Page 2 MOTION TO STRIKE
Defendants/Respondents Tesla, Inc., Christopher Rollins, and
Carson Schafer (“Respondents”) hereby move to strike Appellant David
Wyer’s (“Appellant”) documents submitted in support of his Motion to
Augment the Record (Volumes 1-33, pages 1-7782) (collectively “ExtraRecord Documents”) and portions of Appellant’s Reply Brief (pages 19-48)
relying on his impermissible extra-record submission.
Respondents move to strike Appellant’s Extra-Record Documents on
the grounds that his submission fails to comply with California Rules of
Court, Rule 8.155(a)(1)(A). The documents were never filed in the
Superior Court and thus are improper for consideration on appeal. Further,
the 33 volumes of materials contain unredacted Social Security numbers
and financial account numbers as well as confidential information,
including documents produced under the parties’ protective order entered in
the underlying arbitration. Respondents request that the documents be
stricken and be deemed rejected from filing as non-compliant pursuant to
California Rules of Court, Rule 8.18, or alternatively, be filed under seal or
ordered confidential. Cal. Rules of Court 8.46, 8.47.
Respondents further move to strike portions of Appellant’s Reply
Brief citing and relying on Appellant’s information and documents not
contained in the record, including pages 19-48 of Appellant’s Reply
(Respondent’s Statement of Facts, Response to Statement of the Case,
Appellant’s Revised Statement of Case, Statement of Facts) discussing
Appellant’s extra-record facts. Cal. Rule of Court 8.204(a)(2)(C).
///
///
4883-9737-9230v
Page 3 This Motion to Strike is based on this notice, the attached
memorandum of points and authorities, the Declaration of Keiko J. Kojima,
as well as upon the record on appeal and Appellant’s Reply Brief, Motion
to Augment and accompanying documents received herein.
Dated: January 19,
BURKE, WILLIAMS &
SORENSEN, LLP
By:
Cheryl Johnson-Hartwell
Keiko J. Kojima
Attorneys for
DEFENDANTS/RESPONDENTS
TESLA, INC., CHRISTOPHER
ROLLINS, AND CARSON
SCHAFER
4883-9737-9230v
Page 4 MEMORANDUM OF POINTS AND AUTHORITIES
I.
Appellant’s Extra-Record Documents Submitted for His
Augmentation Request Should Be Stricken/Not Filed
Appellant’s Extra-Record Documents received in support of his
Motion to Augment should be stricken and deemed not filed pursuant to
California Rules of Court, Rules 8.18 and 8.155(a).
California Rule of Court 8.155(a) provides that the appellate court
may order the record augmented to include any document filed in the case
in the superior court on a motion of a party. However, the Court of Appeal
does not consider matters that were not before the superior court. Roden v.
Amerisource Bergen Corp. (2010) 186 Cal.App.4th 620, 630.
“Augmentation does not function to supplement the record with materials
not before the trial court.” Vons Companies, Inc. v. Seabest Foods, Inc.
(1996) 14 Cal.4th 434, 444, fn. 3; see People v. Brawley (1969) 1 Cal.3d
277, 294–295 (denying motion to augment record where documents “were
not before the trial court”); Cal. Rule of Court 8.155(a)(1)(A). The
augmentation procedure may not be used to cure errors or omissions by
litigants in the trial court file, or to bring up matters outside the trial court
record. Vons Cos., Inc. v. Sea Best Foods, Inc., 14 Cal.App.4th at 444; Kyle
v. Carmon (1999) 71 Cal.App.4th 901, 906.
In the present, case, Appellant seeks to augment the record by
adding 33 volumes of material spanning 7782 pages that were never filed
with the trial court1, including multiple deposition transcripts, arbitration
1 The only exception appears to be a Reply in Volume 31, pages 222-230,
which is not a conformed copy.
4883-9737-9230v
Page 5 exhibits both admitted and not admitted, arbitration transcripts, arbitration
briefs, correspondence between counsel, discovery responses and
documents produced during discovery in arbitration, documents Appellant
received from his prior counsel, etc. [Declaration of Keiko J. Kojima
(“Kojima Decl.”), ¶2] Appellant characterizes the material as “an
assortment of different kinds of evidence and documentation” that he
admits were not before the trial court. [Motion to Augment, p. 2, ¶4].
Appellant seeks augmentation of these documents on appeal specifically
because they were “excluded” from the trial court and Appellant believes
he is entitled to a “full review of the evidence in [his] possession.” [Id.,
¶¶4-5]. This is not a permissible ground for augmenting the record on
appeal. Cal. Rule of Court 8.155(a)(1)(A).
Appellant’s documents also fail to comply with the privacy redaction
requirements of California Rule of Court 1.201. There are multiple
unredacted Social Security and financial account numbers in the
documents. [Kojima Decl., ¶9] Additionally, the Extra-Record
Documents contain documents produced under a protective order that have
not been conditionally lodged by Appellant under seal. [Kojima Decl., ¶¶35]
Pursuant to California Rules of Court Rule 8.18, documents
submitted in violation of the rules are rejected for filing. Accordingly,
Appellant’s Extra-Record Documents submitted in support of Appellant’s
Motion to Augment that were received by the Court should be stricken, and
ordered not filed with this Court.
///
///
4883-9737-9230v
Page 6 II.
Alternatively, Appellant’s Extra-Record Documents Should Be
Filed Under Seal or Deemed Confidential
In the alternative, Appellant’s Extra-Record Documents should be
filed under seal or ordered confidential. (The Extra-Record Documents still
should not be added to the appellate record.) Appellant’s submission
contains documents that were produced under the parties’ protective order
entered in the arbitration. [Kojima Decl., ¶3] The protective order
mandates that “Absent written permission from the Producing Party or an
Order secured after appropriate notice to all interested persons, a Receiving
Party may not file or disclose in the public record any Protected Material.”
[Exh. “1” to Kojima Decl., p. 12; Kojima Decl., ¶3]
On December 19, 2023, Respondents’ counsel reminded Appellant
that documents produced under the protective order should not be publiclyfiled or disclosed. [Exh. “2” to Kojima Decl.; Kojima Decl., ¶4] Yet,
Appellant ignored this notification and sought to file all of his Extra-Record
Documents without seeking a sealing order for the protected documents or
filing these documents conditionally under seal. [Kojima Decl., ¶5]
The 33 volumes of materials contain numerous documents that are
subject to the protective order and should not be publicly filed. [Kojima
Decl., ¶6] The documents also contain private, confidential information,
such as personal and contact information pertaining to non-parties, as well
as Appellant’s employee file, personal medical information, and unredacted
Social Security and financial account numbers. [Id.] Due to the volume of
improperly disclosed information and documents, Respondents request that
to the extent that Appellant’s Extra-Record Documents are permitted to be
filed, that they be ordered filed under seal or be ordered confidential. At
4883-9737-9230v
Page 7 the very least, the following portions of Volumes 1 through 33 that are
subject to the protective order should be filed under seal:
VOL. 4 – Exhibits 118, VOL. 5 – Exhibits 125 (pp. 9-29), 149, 151, 154, 156, 158, 159, 160,
161, 166, VOL. 6 – Exhibits 218, 219, 220, 221, 226, VOL. 33 – Exhibits 34 (pp. 44-50), [Kojima Decl., ¶7]
Due to the volume of documents (7782 pages) at issue, in the event
that additional documents under the protective order are inadvertently
omitted from the list above, Respondents request that the entirety of the
Extra-Record Documents be placed under seal and/or ordered confidential.
[Kojima Decl., ¶8]
Alternatively, Appellant should be ordered to withdraw his extrarecord submission in its entirety and re-submit documents subject to the
protective order in compliance with California Rule of Court Rule 8.46(d).
Respondents seek leave to provide additional support regarding
confidentiality should Appellant’s Extra-Record Documents be permitted to
be filed in this Court.
III.
Appellant’s Reply Brief Relying on the Extra-Record Documents
Should Be Stricken
Appellant’s Reply Brief relies on and refers to purported facts that
he bases on his Extra-Record Documents. For the reasons stated in
Respondents’ Opposition to Appellant’s Motion to Augment the Record
(filed concurrently with this Motion), consideration of these matters is not
4883-9737-9230v
Page 8 appropriate. Appellant’s Reply Brief does not comport with California
Rule of Court 8.204(a)(2)(C), which requires statements of fact in briefs
shall be “limited to matters in the record.” This Court should therefore
strike pages 19-48 of Appellant’s Reply (Respondents’ Statement of Facts,
Response to Statement of the Case, Appellant’s Revised Statement of Case,
Statement of Facts). See Cal. Rule of Court 8.204(a)(2)(C); Robomatic,
Inc. v. Vetco Offshore, 225 Cal. App. 3d 270, 272 n. (1990) (granting
motion to strike portions of brief relying on facts not in the record). Even if
these portions of the Reply Brief are not formally stricken, they should be
disregarded since they rely on facts and arguments not considered by the
trial court. See Connecticut Indemnity Co. v. Superior Court (2000) Cal.4th 807, 813, fn. 2 (ignoring portions of reply brief which referred to
newspaper articles and other documents that were not part of record).
///
///
///
///
///
///
///
///
///
///
///
///
4883-9737-9230v
Page 9 IV.
Conclusion
Based on the foregoing, Respondents request that the Court: (1)
strike and deem not filed Appellant’s documents submitted in support of his
Motion To Augment Record on Appeal (Volumes 1 through 33), or
alternatively order Appellant’s extra-record submission to be filed under
seal or ordered confidential; and (2) strike Appellant’s Reply Brief factual
statement sections that rely on the augmentation (Reply, pages 19-48).
Dated: January 19,
BURKE, WILLIAMS &
SORENSEN, LLP
By:
Cheryl Johnson-Hartwell
Keiko J. Kojima
Attorneys for
DEFENDANTS/RESPONDENTS
TESLA, INC., CHRISTOPHER
ROLLINS, AND CARSON
SCHAFER
4883-9737-9230v
Page 10 DECLARATION OF KEIKO J. KOJIMA
I, Keiko J. Kojima, declare as follows:
1.
I am a partner with Burke, Williams & Sorensen, LLP,
attorneys of record for Defendants/Respondents Tesla, Inc., Christopher
Rollins, and Carson Schafer. I have personal knowledge of the facts set
forth herein. If called as a witness, I could and would competently testify
to the matters stated herein. I make this declaration in support of
Respondents’ Motion to Strike Appellant’s Extra-Record Documents and
Portions of Appellant’s Reply Brief.
2.
Appellant seeks to augment the record by adding 33 volumes
of material spanning 7782 pages that were never filed with the trial court
(“Extra-Record Documents”), including multiple deposition transcripts,
arbitration exhibits both admitted and not admitted, arbitration transcripts,
arbitration briefs, correspondence between counsel, discovery responses
and documents produced during discovery in arbitration, documents
Appellant received from his prior counsel, etc. (The only exception appears
to be a Reply in Volume 31, pages 221-241. This would be the only
document potentially a proper subject for augmentation, but the document
should be a conformed copy.)
3.
Appellant’s Extra-Record Documents contain documents that
were produced under the parties’ protective order entered in the arbitration.
These are designated with a bates-stamp “Confidential Pursuant to
Protective Order.” Attached hereto as Exhibit “1” is a true copy of the
Stipulated Protective Order entered by the parties in arbitration and ordered
4883-9737-9230v
Page 11 by Arbitrator Hiro N. Aragaki on May 18, 2021. The protective order
states that “Absent written permission from the Producing Party or an
Order secured after appropriate notice to all interested persons, a Receiving
Party may not file or disclose in the public record any Protected Material.”
[Exh. 1, p. 12]
4.
On December 19, 2023, I sent an email to Appellant David
Wyer (in pro per), advising that I received his second request for extension
for his reply brief, wherein he indicated his intention to attempt to augment
the record with 17,000 pages of documents. My email reminded him that
documents produced under the protective order should not be publicly-filed
or disclosed and cited the requisite excerpt from the Stipulated Protective
Order. Attached as Exhibit “2” is a true copy of my December 19, email to Mr. Wyer.
5.
Mr. Wyer did not comply with the Stipulated Protective
Order. He sought to file all of his Extra-Record Documents without
seeking a sealing order for the protected documents or filing them
conditionally under seal.
6.
The 33 volumes of materials contain numerous documents
that are subject to the protective order and should not be publicly filed. The
documents also contain private, confidential information, such as personal
and contact information pertaining to non-parties, as well as Appellant’s
employee file, personal medical information, and unredacted Social
Security and financial account numbers. Due to the volume of improperly
disclosed information and documents, Respondents request that to the
extent that Appellant’s Extra-Record Documents are permitted to be filed,
that they be ordered filed under seal or be ordered confidential.
4883-9737-9230v
Page 12 7.
The following portions of Extra-Record Documents contain
documents that are subject to the Stipulated Protective Order:
VOL. 3 – Exhibit 54 (pp. 29-39)
VOL. 4 – Exhibits 118, VOL. 5 – Exhibits 149, 151, 154, 156, 158, 159, 160, 161, 166, VOL. 6 – Exhibits 218, 219, 220, 221, 226, VOL. 33 – Exhibits 34 (pp. 44-50), 8.
Due to the volume of documents (7782 pages) at issue, in the
event that additional documents under the protective order are inadvertently
omitted from the list above, Respondents request that the entirety of
Appellant’s Extra-Record Documents be ordered placed under seal and/or
ordered confidential.
9.
Appellant’s Extra-Record Documents fail to comply with the
privacy redaction requirements of California Rule of Court 1.201. There
are multiple unredacted Social Security and financial account numbers in
the documents. In order to avoid drawing attention to the unredacted
information, I am not specifying these pages in my declaration but am able
to do so should the Court require this specificity.
I declare under penalty of perjury under the laws of the State of
California that the foregoing is true and correct.
Executed on January 19, 2024 at Los Angeles, California.
Keiko J. Kojima
4883-9737-9230v
Page 13 EXHIBIT
Page 14
EXHIBIT 1-001
Page 15
EXHIBIT 1-002
Page 16
EXHIBIT 1-003
Page 17
EXHIBIT 1-004
Page 18
EXHIBIT 1-005
Page 19
EXHIBIT 1-006
Page 20
EXHIBIT 1-007
Page 21
EXHIBIT 1-008
Page 22
EXHIBIT 1-009
Page 23
EXHIBIT 1-010
Page 24
EXHIBIT 1-011
Page 25
EXHIBIT 1-012
Page 26
EXHIBIT 1-013
Page 27
EXHIBIT 1-014
Page 28
EXHIBIT 1-015
Page 29
EXHIBIT 1-016
Page 30
EXHIBIT 1-017
Page 31 EXHIBIT
Page 32 Kojima, Keiko J.
From:
Sent:
To:
Cc:
Subject:
Kojima, Keiko J.
Tuesday, December 19, 2023 9:06 AM
'Dave@WyervsTesla.com'
Johnson-Hartwell, Cheryl; McMaster, Alicia; Ashworth, Barbara
Wyer v. Tesla
Mr. Wyer,
In your second request for an extension for your reply brief, you indicated your intention to attempt to augment the
record with 17,000 pages of documents. This email serves as a reminder that documents produced under the protective
order should not be publicly-filed or disclosed:
-Keiko
Keiko J. Kojima | Partner
Pronouns: she, her, hers
Burke, Williams & Sorensen, LLP
444 South Flower Street, Suite 2400 | Los Angeles, CA 90071-d - 213.236.2842 | t - 213.236.0600 | f - 213.236.kkojima@bwslaw.com | vCard | bwslaw.com

EXHIBIT 2-001
Page 33 [PROPOSED] ORDER
The Court has read and considered Respondents’ Motion To Strike
Appellant’s Extra-Record Documents and Portions of Appellant’s Reply
Brief. Good cause appearing,
IT IS HEREBY ORDERED:
Respondents’ Motion to Strike is GRANTED.
Appellant’s documents submitted in support of his Motion To
Augment Record on Appeal (Volumes 1 through 33) are stricken, and
ordered not to be filed with this Court.
Appellant’s Reply Brief factual statement sections that rely on the
extra-record documents (pages 19-48 re Respondents’ Statement of Facts,
Response to Statement of the Case, Appellant’s Revised Statement of Case,
Statement of Facts) are stricken.
DATED: _________, By:
PRESIDING JUSTICE
4883-9737-9230v
Page 34 PROOF OF SERVICE
STATE OF CALIFORNIA, COUNTY OF LOS ANGELES
At the time of this service, I was over the age of 18 years of age and
not a party to the within-entitled action. I am a citizen of the United States
and am employed by Burke, Williams & Sorensen, LLP, whose business
address is 444 S. Flower Street, Suite 2400, Los Angeles, California
90071.
On January 19, 2024, I served true copies of the following
document(s) described as MOTION TO STRIKE APPELLANT’S
EXTRA-RECORD DOCUMENTS AND PORTIONS OF
APPELLANT’S REPLY BRIEF on the interested parties in this action
as follows:
BY E-MAIL OR ELECTRONIC TRANSMISSION: by
transmitting via electronic transmission to Court of Appeal, Fourth
Appellate District, and the Supreme Court of California using
TrueFiling (https://www.trufiling.com). All interested parties listed
below, registered with TrueFiling, will be electronically served
through TrueFiling.
David Wyer
8583 Irvine Center Drive, #IRVINE, CA Dave@WyervsTesla.com
Plaintiff/Appellant in Pro Per
I declare under penalty of perjury under the laws of the State of
California that the foregoing is true and correct.
Executed on January 19, 2024, at Los Angeles, California.
Alicia McMaster
4883-9737-9230v
Page 35 Court of Appeal, Fourth Appellate District, Division Three
Brandon L. Henson, Clerk/Executive Officer
Electronically FILED on 1/19/2024 by Lilian De La Torre, Deputy Clerk
STATE OF CALIFORNIA
California Court of Appeal, Fourth
Appellate District Division
PROOF OF SERVICE
STATE OF CALIFORNIA
California Court of Appeal, Fourth
Appellate District Division Case Name: Wyer v. Tesla, Inc. et
al.
Case Number: GLower Court Case Number: 30-2019-
1.
At the time of service I was at least 18 years of age and not a party to this legal
action.
2. My email address used to e-serve: kkojima@bwslaw.com
3. I served by email a copy of the following document(s) indicated below:
Title(s) of papers e-served:
Filing Type
Document Title
MOTION - MOTION (FEE WYER - Respondents' Motion to Strike Appellant's ExtraPREVIOUSLY PAID)
Record Documents and Reply Brief [1-19-24]
Service Recipients:
Person Served
Email Address
Type Date / Time
Keiko Kojima
kkojima@bwslaw.com e1/19/Burke, Williams & Sorensen, LLP
Serve 10:39:10 AM
Cheryl Johnsonhartwell
cjohnsone1/19/Burke, Williams & Sorenson
hartwell@bwslaw.com Serve 10:39:10 AM
David Wyer
dave@wyervstesla.com e1/19/Court Added
Serve 10:39:10 AM
David Wyer
dave@dwgraphics.com e1/19/Serve 10:39:10 AM
This proof of service was automatically created, submitted and signed on my behalf
through my agreements with TrueFiling and its contents are true to the best of my
information, knowledge, and belief.
I declare under penalty of perjury under the laws of the State of California that the
foregoing is true and correct.
1/19/2024
Page 36 Date
/s/Keiko Kojima
Signature
Kojima, Keiko (206595)
Last Name, First Name (PNum)
Burke, Williams & Sorensen, LLP
Law Firm
Space
Issues Laws Cases Pro Articles Firms Entities
Issues Laws Cases Pro Articles Firms Entities
 
PlainSite
Sign Up
Need Password Help?