Debtor(s). NOTICE OF MOTION AND MOTION FOR RELIEF FROM THE AUTOMATIC STAY UNDER 11 U.S.C. 362 (with supporting declarations)

Transcription

1 Case :-bk-0-sc Doc Filed 0// Entered 0// 0:: Desc Main Document Page of Attorney or Party Name, Address, Telephone & FAX Numbers, and California State Bar Number William J. Wall, SBN 00 THE WALL LAW OFFICE, APC 00 Research Drive Irvine, CA T: () -00 F: (00) - G Individual appearing without counsel G Attorney for: Movant Morgan Broadhead UNITED STATES BANKRUPTCY COURT CENTRAL DISTRICT OF CALIFORNIA FOR COURT USE ONLY In re AMERICAN SUZUKI MOTOR CORPORATION Debtor(s). CHAPTER: CASE NO.: :-bk-0-sc DATE: // TIME: 0:00 a.m. CTRM: C (Santa Ana Courtroom) FLOOR: NOTICE OF MOTION AND MOTION FOR RELIEF FROM THE AUTOMATIC STAY UNDER U.S.C. (with supporting declarations) (MOVANT: MORGAN BROADHEAD ) (Action in Non-bankruptcy Forum). NOTICE IS HEREBY GIVEN to the Debtor(s) and Trustee (if any)( Responding parties ), their attorneys (if any), and other interested parties that on the above date and time and in the indicated courtroom, Movant in the above-captioned matter will move this Court for an Order granting relief from the automatic stay as to Debtor(s) and Debtor s(s ) bankruptcy estate on the grounds set forth in the attached Motion.. Hearing Location: G East Temple Street, Los Angeles G West Fourth Street, Santa Ana G 0 Burbank Boulevard, Woodland Hills G 0 Twelfth Street, Riverside G State Street, Santa Barbara. a. G This Motion is being heard on REGULAR NOTICE pursuant to Local Bankruptcy Rule 0-. If you wish to oppose this Motion, you must file a written response to this Motion with the Bankruptcy Court and serve a copy of it upon the Movant s attorney (or upon Movant, if the Motion was filed by an unrepresented individual) at the address set forth above no less than days before the above hearing and must appear at the hearing of this Motion. b. G This Motion is being heard on SHORTENED TIME. If you wish to oppose this Motion, you must appear at the hearing. Any written response or evidence must be filed and served: G at the hearing G at least court days before the hearing. () G A Motion for Order Shortening Time was not required (according to the calendaring procedures of the assigned judge). () G A Motion for Order Shortening Time was filed per Local Bankruptcy Rule 0-(b) and was granted by the Court. () G A Motion for Order Shortening Time has been filed and remains pending. Once the Court has ruled on that Motion, you will be served with another notice or an order that will specify the date, time, and place of the hearing on the attached Motion and the deadline for filing and serving a written opposition to the Motion.. You may contact the Bankruptcy Clerk s Office to obtain a copy of an approved court form for use in preparing your response (Optional Court Form F 00-.RES), or you may prepare your response using the format required by Local Bankruptcy Rule 00- and the Court Manual. (Continued on next page) December 00 This form is mandatory by Order of the United States Bankruptcy Court for the Central District of California. F 00-M.NA

2 In re Case :-bk-0-sc Doc Filed 0// Entered 0// 0:: Desc Main Document Page of Motion for Relief from Stay (Non-bankruptcy Action) - Page of (SHORT TITLE) CHAPTER: F 00-M.NA AMERICAN SUZUKI MOTOR CORPORATION Debtor(s). CASE NO.: :-bk-0-sc. If you fail to file a written response to the Motion or fail to appear at the hearing, the Court may treat such failure as a waiver of your right to oppose the Motion and may grant the requested relief. Dated: 0// The Wall Law Office, A Professional Corporation Print Law Firm Name (if applicable) William J. Wall Print Name of Individual Movant or Attorney for Movant /s/william J. Wall Signature of Individual Movant or Attorney for Movant December 00 This form is mandatory by Order of the United States Bankruptcy Court for the Central District of California. F 00-M.NA

3 In re Case :-bk-0-sc Doc Filed 0// Entered 0// 0:: Desc Main Document Page of Motion for Relief from Stay (Non-bankruptcy Action) - Page of (SHORT TITLE) CHAPTER: F 00-M.NA AMERICAN SUZUKI MOTOR CORPORATION Debtor(s). CASE NO.: :-bk-0-sc MOTION FOR RELIEF FROM THE AUTOMATIC STAY (MOVANT: MORGAN BROADHEAD ). The Non-bankruptcy Action: Movant moves for relief from the automatic stay as to Debtor(s) and Debtor s(s ) bankruptcy estate with respect to the following pending lawsuit or administrative proceeding (the Non-bankruptcy Action ) in a non-bankruptcy forum: Case name: Yet to be filed Docket number: Court or agency where pending:. Case History: a. G A voluntary G An involuntary petition under Chapter G G G G was filed on (specify date): b. G An Order of Conversion to Chapter G G G G was entered on (specify date): c. G Plan was confirmed on (specify date): // d. G Other bankruptcy cases affecting this action have been pending within the past two years. See attached Declarations. e. For additional case history, see attached continuation page.. Grounds for Relief from Stay: Pursuant to U.S.C. (d)(), cause exists to grant Movant relief from stay to proceed with the Non-bankruptcy Action to final judgment in the non-bankruptcy forum for the following reasons: a. G The bankruptcy case was filed in bad faith specifically to delay, hinder or interfere with prosecution of the Non-bankruptcy Action. b. G The claim is insured. Movant seeks recovery only from applicable insurance, if any, and waives any deficiency or other claim against the Debtor(s) or estate property. c. G Movant seeks recovery primarily from third parties and agrees that the stay will remain in effect as to enforcement of any resulting judgment against the Debtor(s) or estate, except that Movant will retain the right to file a proof of claim under U.S.C. 0 and/or an adversary complaint under U.S.C. or in this bankruptcy case. d. G Mandatory abstention applies under U.S.C. (c)(), and Movant agrees that the stay will remain in effect as to enforcement of any resulting judgment against the Debtor(s) or estate, except that Movant will retain the right to file a proof of claim under U.S.C. 0 and/or an adversary complaint under U.S.C. or in this bankruptcy case. e. G The claims are non-dischargeable in nature and can be most expeditiously resolved in the non-bankruptcy forum. f. G The claims at issue arise under non-bankruptcy law and can be most expeditiously resolved in the non-bankruptcy forum. g. G Other reasons to allow the Non-bankruptcy Action to proceed are set forth in an attached Declaration.. G Movant also seeks annulment of the stay so that filing of the bankruptcy petition does not affect any and all of the enforcement actions that were taken after the filing of the bankruptcy petition in this case, as specified in the attached Declaration(s).. Evidence in Support of Motion: (Important Note: Declaration(s) in support of the Motion MUST be attached hereto.) a. G Movant submits the attached Declaration(s) to provide evidence in support of this Motion pursuant to Local Bankruptcy Rules. b. G Movant requests that the Court consider as admissions the statements made by Debtor(s) under penalty of perjury concerning Movant s claims set forth in Debtor s(s ) Schedules. Authenticated copies of the relevant portions of the Schedules are attached as Exhibit. (Continued on next page) December 00 This form is mandatory by Order of the United States Bankruptcy Court for the Central District of California. F 00-M.NA

4 In re Case :-bk-0-sc Doc Filed 0// Entered 0// 0:: Desc Main Document Page of Motion for Relief from Stay (Non-bankruptcy Action) - Page of (SHORT TITLE) CHAPTER: F 00-M.NA AMERICAN SUZUKI MOTOR CORPORATION Debtor(s). CASE NO.: :-bk-0-sc c. G Other evidence (specify):. G An optional Memorandum of Points and Authorities is attached to this Motion. WHEREFORE, Movant prays that this Court issue an Order granting the following:. Relief from the stay to Movant (and its successors and assigns, if any) (check boxes re all applicable relief requested): a. G Terminating the stay as to Debtor(s) and Debtor s(s ) bankruptcy estate. b. G Annulling the stay so that the filing of the bankruptcy petition does not affect postpetition acts, as specified in the attached Declaration(s). c. G Modifying or conditioning the stay as set forth in the attached continuation page:. Allowing Movant to proceed under applicable non-bankruptcy law to enforce its remedies to proceed to final judgment in the nonbankruptcy forum, provided that the stay remains in effect with respect to enforcement of any judgment against Debtor(s) or estate property.. G Additional provisions requested: a. G That the Order be binding and effective despite any conversion of this bankruptcy case to a case under any other chapter of Title of the United States Code. b. G That the -day stay prescribed by Bankruptcy Rule 00(a)() be waived. c. G That the Extraordinary Relief be granted as set forth in the Attachment (attach Optional Court Form F 00-M.ER). d. G For other relief requested, see attached continuation page.. If relief from stay is not granted, Movant respectfully requests the Court to order adequate protection. Dated: 0// Respectfully submitted, MORGAN BROADHEAD Movant Name THE WALL LAW OFFICE, A PROFESSIONAL CORPORATION Firm Name of Attorney for Movant (if applicable) /s/william J. Wall By: Signature Name: William J. Wall Typed Name of Individual Movant or Attorney for Movant December 00 This form is mandatory by Order of the United States Bankruptcy Court for the Central District of California. F 00-M.NA

5 In re Case :-bk-0-sc Doc Filed 0// Entered 0// 0:: Desc Main Document Page of Motion for Relief from Stay (Non-bankruptcy Action) - Page of (SHORT TITLE) CHAPTER: F 00-M.NA AMERICAN SUZUKI MOTOR CORPORATION Debtor(s). CASE NO.: :-bk-0-sc DECLARATION RE ACTION IN NON-BANKRUPTCY FORUM (MOVANT: MORGAN BROADHEAD ) I, FRANK PRAY, declare as follows: (Print Name of Declarant). I have personal knowledge of the matters set forth in this declaration and, if called upon to testify, I could and would competently testify thereto. I am over years of age. I have knowledge regarding the state court lawsuit, administrative proceeding, or other action in a non-bankruptcy forum ( Non-bankruptcy Action ) that is the subject of this Motion because: a. G I am the Movant. b. G I am the Movant s attorney of record in the Non-bankruptcy Action. c. G I am employed by the Movant as (state title and capacity): d. G Other (specify):. I am one of the custodians of the books, records and files of Movant as to those books, records and files that pertain to the Nonbankruptcy Action. I have personally worked on books, records and files, and as to the following facts, I know them to be true of my own knowledge or I have gained knowledge of them from the business records of Movant on behalf of Movant, which were made at or about the time of the events recorded, and which are maintained in the ordinary course of Movant s business at or near the time of the acts, conditions or events to which they relate. Any such document was prepared in the ordinary course of business of Movant by a person who had personal knowledge of the event being recorded and had or has a business duty to record accurately such event. The business records are available for inspection and copies can be submitted to the Court if required.. The Non-bankruptcy Action at issue is currently pending as: Case name: Yet to be filed Docket number: Court or agency where pending:. Procedural Status: a. The causes of action pleaded in the non-bankruptcy forum are (list): Wrongful Termination True and correct copies of the pleadings filed before the non-bankruptcy forum are attached hereto as Exhibit. b. The Non-bankruptcy Action was filed on (specify date): c. Trial or hearing began/is scheduled to begin on (specify date): d. The trial or hearing is estimated to require the following number of court days (specify): e. Other defendants to the Non-bankruptcy Action are (specify):. Grounds for relief from stay: a. G The claim is insured. The insurance carrier and policy number are (specify): National Union Fire Insurance Company of Pittsburgh, PA Policy Number: (Continued on next page) December 00 This form is mandatory by Order of the United States Bankruptcy Court for the Central District of California. F 00-M.NA

6 In re Case :-bk-0-sc Doc Filed 0// Entered 0// 0:: Desc Main Document Page of Motion for Relief from Stay (Non-bankruptcy Action) - Page of (SHORT TITLE) CHAPTER: F 00-M.NA AMERICAN SUZUKI MOTOR CORPORATION Debtor(s). CASE NO.: :-bk-0-sc b. G The matter can be tried more expeditiously in the non-bankruptcy forum. () G It is currently set for trial on: () G It is in advanced stages of discovery and Movant believes that it will be set for trial by (specify date): The basis for this belief is (specify): () G The matter involves non-debtor parties who are not subject to suit in the bankruptcy court. A single trial in the nonbankruptcy forum is the most efficient use of judicial resources. c. G The bankruptcy case was filed in bad faith specifically to delay or interfere with the prosecution of the Non-bankruptcy Action. () G Movant is the only creditor (or the only substantial creditor) scheduled by the Debtor(s). () G The timing of the petition filing shows that it was intended to delay or interfere with the Non-bankruptcy Action based upon the following facts (specify): () G Debtor(s) does(do) not have a reasonable likelihood of reorganizing in this Chapter G G bankruptcy case based upon the following facts (specify): d. G For other facts justifying relief from stay, see attached continuation page. I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct and that this Declaration was executed on October,, at Newport Beach, CA (city, state). FRANK PRAY Print Declarant s Name Signature of Declarant December 00 This form is mandatory by Order of the United States Bankruptcy Court for the Central District of California. F 00-M.NA

7 In re Case :-bk-0-sc Doc Filed 0// Entered 0// 0:: Desc Main Document Page of Motion for Relief from Stay (Non-bankruptcy Action) - Page of (SHORT TITLE) CHAPTER: F 00-M.NA AMERICAN SUZUKI MOTOR CORPORATION Debtor(s). CASE NO.: :-bk-0-sc NOTE: When using this form to indicate service of a proposed order, DO NOT list any person or entity in Category I. Proposed orders do not generate an NEF because only orders that have been entered are placed on a CM/ECF docket. PROOF OF SERVICE OF DOCUMENT I am over the age of and not a party to this bankruptcy case or adversary proceeding. My business address is: 00 Research Drive Irvine, CA A true and correct copy of the foregoing document described as NOTICE OF MOTION AND MOTION FOR RELIEF FROM THE AUTOMATIC STAY UNDER U.S.C. (with declarations) will be served or was served (a) on the judge in chambers in the form and manner required by LBR 00-(d), and (b) in the manner indicated below: I. TO BE SERVED BY THE COURT VIA NOTICE OF ELECTRONIC FILING ( NEF ) - Pursuant to controlling General Order(s) and Local Bankruptcy Rule(s) ( LBR ), the foregoing document will be served by the court via NEF and hyperlink to the document. On 0// I checked the CM/ECF docket for this bankruptcy case or adversary proceeding and determined that the following person(s) are on the Electronic Mail Notice List to receive NEF transmission at the addressed indicated below: Service information continued on attached page II. SERVED BY U.S. MAIL OR OVERNIGHT MAIL (indicate method for each person or entity served): On 0// I served the following person(s) and/or entity(ies) at the last known address(es) in this bankruptcy case or adversary proceeding by placing a true and correct copy thereof in a sealed envelope in the United States Mail, first class, postage prepaid, and/or with an overnight mail service addressed as follow. Listing the judge here constitutes a declaration that mailing to the judge will be completed no later than hours after the document is filed. Judge's Copy: Honorable Scott Clarkson, United States Bankruptcy Court W. Fourth Street, Suite 0, Santa Ana, CA 0 Service information continued on attached page III. SERVED BY PERSONAL DELIVERY, FACSIMILE TRANSMISSION OR (indicate method for each person or entity served): Pursuant to F.R.Civ.P. and/or controlling LBR, on I served the following person(s) and/or entity(ies) by personal delivery, or (for those who consented in writing to such service method) by facsimile transmission and/or as follows. Listing the judge here constitutes a declaration that mailing to the judge will be completed no later than hours after the document is filed. Via Morgan Broadhead: xxlracer@gmail.com Frank Pray: fpray@employee-rights-atty.com Service information continued on attached page I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. 0// Gabriela Oceguera /s/gabriela Oceguera Date Type Name Signature December 00 This form is mandatory by Order of the United States Bankruptcy Court for the Central District of California. F 00-M.NA

8 Case :-bk-0-sc Doc Filed 0// Entered 0// 0:: Desc Main Document Page of. TO BE SERVED BY THE COURT VIA NOTICE OF ELECTRONIC FILING (NEF): Allison R Axenrod allison@claimsrecoveryllc.com Jason W Bank jbank@kerr-russell.com Martin R Barash mbarash@ktbslaw.com, lbogdanoff@ktbslaw.com Yelena Bederman ybederman@omnimgt.com Andrew S Bisom abisom@bisomlaw.com Michael J Bujold Michael.J.Bujold@usdoj.gov Frank Cadigan frank.cadigan@usdoj.gov Charles Canter charles.canter@usdoj.gov Linda F Cantor lcantor@pszjlaw.com, lcantor@pszjlaw.com Linda F Cantor lcantor@pszjlaw.com, lcantor@pszjlaw.com George B Cauthen george.cauthen@nelsonmullins.com, steve.morrison@nelsonmullins.com;jody.bedenbaugh@nelsonmullins.com;steve.mckelvey@nelsonmullins.com;j oan.kishline@nelsonmullins.com Wendy Chang wchang@hinshawlaw.com Shirley Cho scho@pszjlaw.com Shawn M Christianson cmcintire@buchalter.com Adam C Clanton Adam.clanton@coco.ocgov.com Kristen Corbett kcorbett@omnimgt.com Donald H Cram dhc@severson.com, jc@severson.com Joseph A Eisenberg jae@jmbm.com, vr@jmbm.com;tgeher@jmbm.com;bt@jmbm.com;as@jmbm.com Andrew S Elliott ase@severson.com Scott Ewing contact@omnimgt.com, sewing@omnimgt.com;katie@omnimgt.com Scott Ewing contact@omnimgt.com, sewing@omnimgt.com;katie@omnimgt.com William A Frazell bk-bfrazell@texasattorneygeneral.gov Donald L Gaffney dgaffney@swlaw.com Amir Gamliel agamliel@perkinscoie.com, cmallahi@perkinscoie.com Duane M Geck dmg@severson.com Michael I Goldberg info@sonarcredit.com Richard H Golubow rgolubow@winthropcouchot.com, pj@winthropcouchot.com;vcorbin@winthropcouchot.com Leon B Gordon othercourts@mvbalaw.com Debra I Grassgreen dgrassgreen@pszyjw.com Michael J Hauser michael.hauser@usdoj.gov Eric M Heller eric.m.heller@irscounsel.treas.gov Matthew Heyn mheyn@ktbslaw.com Desmond J Hinds dhinds@hinshawlaw.com, mpotter@hinshawlaw.com Harry D. Hochman hhochman@pszjlaw.com, hhochman@pszjlaw.com John J Immordino john.immordino@wilsonelser.com, raquel.burgess@wilsonelser.com Steven J Kahn skahn@pszyjw.com Teddy M Kapur tkapur@pszjlaw.com Samuel M Kidder skidder@ktbslaw.com Jonathan J Kim jkim@pszjlaw.com, jkim@pszjlaw.com Andy Kong Kong.Andy@ArentFox.com David S Kupetz dkupetz@sulmeyerlaw.com, dperez@sulmeyerlaw.com Kristin R Lamar nclgign@hotmail.com, NCLGBU@gmail.com Kenneth T Law ken@bbslaw.com Kenneth T Law ken@bbslaw.com Elizabeth A Lossing elizabeth.lossing@usdoj.gov John W Lucas jlucas@pszjlaw.com, ocarpio@pszjlaw.com John W Lucas jlucas@pszjlaw.com, ocarpio@pszjlaw.com Kerri A Lyman klyman@irell.com Kerri A Lyman klyman@irell.com Gabriel R Macconaill gmacconaill@sidley.com This form is mandatory. It has been approved for use by the United States Bankruptcy Court for the Central District of California. June 0 F 0-..PROOF.SERVICE

9 Case :-bk-0-sc Doc Filed 0// Entered 0// 0:: Desc Main Document Page of Kathleen P March kmarch@bkylawfirm.com, kmarch@sbcglobal.net Michael P McMahon mmcmahon@irell.com, mick.p.mcmahon@gmail.com Laura A Meyerson laura.meyerson@sce.com Christopher Minier becky@ringstadlaw.com Mike D Neue mneue@lntlaw.com, jokeefe@lntlaw.com;nlockwood@lntlaw.com Valerie B Peo vpeo@schnader.com, mpadilla@schnader.com David M Poitras dpoitras@jmbm.com, bt@jmbm.com Robert S Prince rprince@kmclaw.com, squilter@kmclaw.com Jeffrey M. Reisner jreisner@irell.com Jeffrey M. Reisner jreisner@irell.com James S Riley tgarza@sierrafunds.com Jason H Rosell jrosell@pszjlaw.com, oginsburg@pszjlaw.com Susan K Seflin sseflin@ebg-law.com, ecf@ebg-law.com Esperanza Segarra esegarra@hinshawlaw.com, swechsler@hinshawlaw.com Alan D Smith adsmith@perkinscoie.com James Stang jstang@pszjlaw.com Howard Steinberg steinbergh@gtlaw.com, laik@gtlaw.com;lalitdock@gtlaw.com Barry Sullivan bsullivan@sacfirm.com Jessica Taran jtaran@wilkauslander.com Charles M Tatelbaum ctatelbaum@hinshawlaw.com, csmith@hinshawlaw.com United States Trustee (SA) ustpregion.sa.ecf@usdoj.gov Andy C Warshaw awarshaw@lawcenter.com, mstevens@lawcenter.com Jonathan M Weiss jweiss@ktbslaw.com Elizabeth Weller dallas.bankruptcy@publicans.com Judith A Whitehouse jwhitehouse@schwabe.com, dmillan@schwabe.com;centraldocket@schwabe.com Dean A Ziehl dziehl@pszjlaw.com, dziehl@pszjlaw.com Dean A Ziehl dziehl@pszjlaw.com, dziehl@pszjlaw.com This form is mandatory. It has been approved for use by the United States Bankruptcy Court for the Central District of California. June 0 F 0-..PROOF.SERVICE

10 Case :-bk-0-sc Doc - Filed 0// Entered 0// 0:: Desc Declaration of William J. Wall Page of 0 0 William J. Wall, SBN 00 THE WALL LAW OFFICE A PROFESSIONAL CORPORATION 00 Research Drive Irvine, CA wwall@wall-law.com T: () -00 F: (00) - Attorney for Morgan Broadhead In re AMERICAN SUZUKI CORPORATION, UNITED STATES BANKRUPTCY COURT CENTRAL DISTRICT OF CALIFORNIA SANTA ANA DIVISION Debtor. Case No. :-bk-0-sc Chapter DECLARATION OF WILLIAM J. WALL IN SUPPORT OF MOTION FOR RELIEF FROM THE AUTOMATIC STAY UNDER U.S.C. FILED BY MOVANT MORGAN BROADHEAD Date: November, 0 Time: 0:00 a.m. CPlace: Courtroom C West Fourth Street Santa Ana, CA DECLARATION OF WILLIAM J. WALL I William J. Wall, declare and state as follows:. I am an attorney, duly licensed to practice before the courts of the State of California. The facts stated forth herein are of my own personal knowledge. If called as a witness, I could and would testify truthfully thereto.. I am the attorney of record for Movant Morgan Broadhead ( Movant ) in the bankruptcy case of American Suzuki Motor Corporation ( Debtor ). I submit this declaration in support of the Movant s Motion for Relief from Automatic Stay Under U.S.C. ( Motion ).. Despite multiple requests, the Debtor s insurance coverage is not entirely clear. DECLARATION OF WILLIAM J. WALL IN SUPPORT OF MOTION FOR RELIEF FROM THE AUTOMATIC STAY UNDER U.S.C. FILED BY MOVANT MORGAN BROADHEAD

11 Case :-bk-0-sc Doc - Filed 0// Entered 0// 0:: Desc Declaration of William J. Wall Page of 0. Section (b) of the Motion states we will waive any deficiency claim against the Debtor or estate property. The waiver of a deficiency claim is expressly conditional upon our review of the insurance policy.. Concurrently upon filing this Motion, I am serving discovery requests upon the Debtor. A copy of the discovery requests are attached as Exhibit A. I declare under penalty of perjury under the laws of the Unites States of America that the foregoing is true and correct. Executed, October, 0, at Irvine, California. /s/william J. Wall William J. Wall 0 DECLARATION OF WILLIAM J. WALL IN SUPPORT OF MOTION FOR RELIEF FROM THE AUTOMATIC STAY UNDER U.S.C. FILED BY MOVANT MORGAN BROADHEAD

12 Case :-bk-0-sc Doc - Filed 0// Entered 0// 0:: Desc Declaration of William J. Wall Page of EXHIBIT A

13 Case :-bk-0-sc Doc - Filed 0// Entered 0// 0:: Desc Declaration of William J. Wall Page of 0 0 WILLIAM J. WALL -- State Bar No. 00 The Wall Law Office A Professional Corporation 00 Research Drive Irvine, CA Telephone () -00 Facsimile (00) - wwall@wall-law.com Attorney for Morgan Broadhead In re AMERICAN SUZUKI MOTOR CORPORATION, UNITED STATES BANKRUPTCY COURT Debtor. MORGAN BROADHEAD, v. CENTRAL DISTRICT OF CALIFORNIA Movant, AMERICAN SUZUKI MOTOR CORPORATION, Defendant. SANTA ANA DIVISION CASE NO. :-bk-0 SC Chapter MOVANT MORGAN BROADHEAD S INTEROGATORIES AND REQUEST FOR PRODUCTION OF DOCUMENTS PURUSANT TO FRBP 0, 0 & 0 PROPOUNDING PARTY: RESPONDING PARTY: SET NO.: Movant Morgan Broadhead Respondent American Suzuki Motor Corporation ONE -- MOVANT MORGAN BROADHEAD S INTEROGATORIES AND REQUEST FOR PRODUCTION OF DOCUMENTS PURUSANT TO FRBP 0, 0 & 0; SET ONE

14 Case :-bk-0-sc Doc - Filed 0// Entered 0// 0:: Desc Declaration of William J. Wall Page of 0 0 PRELIMINARY STATEMENT A. You are required to conduct a thorough investigation and provide all information available to you, including information in the custody or possession of your attorneys, investigators, experts, agents, predecessors, representatives or anyone acting on your behalf. B. Requests phrased in the past tense shall be interpreted to mean the time period from Janurary, 00 through and including the present unless otherwise specifically stated. C. If you object to any Request, you must state the specific reasons and grounds for the objection in lieu of your response with sufficient particularity to enable Plaintiff to bring a motion to compel under the Federal Rules of Civil Procedure. D. Your obligation to respond to the Requests shall be deemed continuing and you shall promptly supply, by way of supplemental responses, any and all information that may become known or subsequently discovered prior to the trial of this instant adversary proceeding, which is additionally responsive or necessary to maintain the accuracy of responses previously provided. E. If any information that is requested herein are claimed to be privileged and/or protected (including without limitation based upon the attorney-client privilege or the workproduct doctrine), you are to provide the following information to identify such communications or documents for a subpoena or motion to compel for your compliance:. Title or description;. Date;. Author or a person from who communications were originated;. Addressee, including carbon-copy recipients;. Other Recipient(s) to whom copies were furnished;. Other persons to whom the substance of the communications or documents were communicated;. Where made or created;. Number of pages, if applicable;. Subject matter; and -- MOVANT MORGAN BROADHEAD S INTEROGATORIES AND REQUEST FOR PRODUCTION OF DOCUMENTS PURUSANT TO FRBP 0, 0 & 0; SET ONE

15 Case :-bk-0-sc Doc - Filed 0// Entered 0// 0:: Desc Declaration of William J. Wall Page of Specific grounds for withholding the document or information. F. You may not give lack of information or knowledge as a reason for failure to respond to Requests unless you state that you have made reasonable inquiry and that the information known or readily obtainable by you is insufficient to enable you to respond. INTERROGATORY NO. : At the time of Claimant Morgan Broadhead s termination of employment on or about April, 0, was there in effect any policy of insurance through which you were or might be insured in any manner for the damages, claims or actions that have arise out of his termination of employment and which form the basis of his claim(s) before the Bankruptcy Court. If so, for each policy state: (a) The kind of coverage; (b) The name and address of the Insurance Company; (c) The name, address and telephone number of each named insured; (d) The policy number; (e) The limits of coverage for each type of coverage contained in the policy; (f) Whether any reservation of rights or controversy or coverage dispute exists between you and the insurance company; (g) The name, address and telephone number of the custodian of the policy; (h) The amount of any deductible for any identified policy; (i) The amount of any Self Insured Retention ["SIR"] for any such policy; (j) The amount of any indemnity for attorneys fees incurred in the legal defense of any covered or potentially covered claims; (k) Whether other claims have been made upon the policy in the course of these bankruptcy proceedings. REQUEST FOR PRODUCTION OF DOCUMENTS NO. : All policies identified in response to Interrogatory No.. /// /// -- MOVANT MORGAN BROADHEAD S INTEROGATORIES AND REQUEST FOR PRODUCTION OF DOCUMENTS PURUSANT TO FRBP 0, 0 & 0; SET ONE

16 Case :-bk-0-sc Doc - Filed 0// Entered 0// 0:: Desc Declaration of William J. Wall Page of REQUEST FOR PRODUCTION OF DOCUMENTS NO. : Any notice of reservation of rights provided to the insured concerning a policy identified in response to Interrogatory No.. DATED: October, 0 THE WALL LAW OFFICE, APC 0 0 By: /s/ William J. Wall William J. Wall Attorney for Morgan Broadhead -- MOVANT MORGAN BROADHEAD S INTEROGATORIES AND REQUEST FOR PRODUCTION OF DOCUMENTS PURUSANT TO FRBP 0, 0 & 0; SET ONE

17 Case :-bk-0-sc Doc - Filed 0// Entered 0// 0:: Desc Declaration of William J. Wall Page of PROOF OF SERVICE OF DOCUMENT I am over the age of and not a party to this bankruptcy case or adversary proceeding. My business address is: 00 Research Drive, Irvine, CA A true and correct copy of the foregoing document entitled (specify): MOVANT MORGAN BROADHEAD S INTEROGATORIES AND REQUEST FOR PRODUCTION OF DOCUMENTS PURUSANT TO FRBP 0, 0 & 0 will be served or was served (a) on the judge in chambers in the form and manner required by LBR 00-(d); and (b) in the manner stated below:. TO BE SERVED BY THE COURT VIA NOTICE OF ELECTRONIC FILING (NEF): Pursuant to controlling General Orders and LBR, the foregoing document will be served by the court via NEF and hyperlink to the document. On (date) 0//0, I checked the CM/ECF docket for this bankruptcy case or adversary proceeding and determined that the following persons are on the Electronic Mail Notice List to receive NEF transmission at the addresses stated below: Service information continued on attached page. SERVED BY UNITED STATES MAIL: On (date) 0//0, I served the following persons and/or entities at the last known addresses in this bankruptcy case or adversary proceeding by placing a true and correct copy thereof in a sealed envelope in the United States mail, first class, postage prepaid, and addressed as follows. Listing the judge here constitutes a declaration that mailing to the judge will be completed no later than hours after the document is filed. Dean A Ziehl Pachulski Stang Ziehl & Jones LLP s 000 Santa Monica Blvd th Flr Los Angeles, CA 00 John W Lucas Pachulski Stang Ziehl & Jones LLP 0 California St San Francisco, CA -00 Service information continued on attached page. SERVED BY PERSONAL DELIVERY, OVERNIGHT MAIL, FACSIMILE TRANSMISSION OR (state method for each person or entity served): Pursuant to F.R.Civ.P. and/or controlling LBR, on (date) 0//0, I served the following persons and/or entities by personal delivery, overnight mail service, or (for those who consented in writing to such service method), by facsimile transmission and/or as follows. Listing the judge here constitutes a declaration that personal delivery on, or overnight mail to, the judge will be completed no later than hours after the document is filed. Service information continued on attached page I declare under penalty of perjury under the laws of the United States that the foregoing is true and correct. 0//0 Gabriela Oceguera /s/gabriela Oceguera Date Printed Name Signature June 0 This form is mandatory. It has been approved for use by the United States Bankruptcy Court for the Central District of California. F 0-..PROOF.SERVICE

18 Desc Declaration of Frank Pray Page of 0 0 William J. Wall, SBN 00 THE WALL LAW OFFICE A PROFESSIONAL CORPORATION 00 Research Drive Irvine, CA wwall@wall-law.com T: () -00 F: (00) - Attorney for Morgan Broadhead In re AMERICAN SUZUKI CORPORATION, UNITED STATES BANKRUPTCY COURT CENTRAL DISTRICT OF CALIFORNIA SANTA ANA DIVISION Debtor. I Frank Pray, declare and state as follows: Case No. :-bk-0-sc Chapter DECLARATION OF FRANK PRAY IN SUPPORT OF MOTION FOR RELIEF FROM THE AUTOMATIC STAY UNDER U.S.C. FILED BY MOVANT MORGAN BROADHEAD Date: November, 0 Time: 0:00 a.m. CPlace: Courtroom C West Fourth Street Santa Ana, CA DECLARATION OF FRANK PRAY. If called to testify in this matter, I could state truthfully and competently, of personal knowledge to the following:. I am civil litigation counsel for debtor and claimant Morgan Broadhead in the matter of his separate civil action, currently unfiled due to this Court s automatic stay. I am personally familiar with the facts and allegations of the underlying liability case against American Suzuki Motor Corporation based on extensive interviews with my client and review of portions of his personnel file and related s. DECLARATION OF FRANK PRAY IN SUPPORT OF MOTION FOR RELIEF FROM THE AUTOMATIC STAY UNDER U.S.C. FILED BY MOVANT MORGAN BROADHEAD

19 Desc Declaration of Frank Pray Page of 0 0. I prepared a draft of an action that was to be filed against the Debtor in possession, but was not filed because of the Debtor s filing of the current bankruptcy. A rough draft of that incomplete and unfiled action is attached as Exhibit A to this declaration to provide the outline of the essential facts and theories of recovery in the case. In essence, the case is one for wrongful termination of employment because of discrimination against Plaintiff because of his disability (brain injury and learning impairment) and his request for accommodation. Related to those claims is a further State statutory claim under the Fair Employment and Housing Act [F.E.H.A., CA Govt. Code Section 0(a) et seq.] for failure to provide an interactive process that would identify probable available accommodations, including transfer.. The claims in my legal opinion have merit, and in the interest of justice should be allowed to proceed outside the Bankruptcy Court to the extent of available insurance coverage given the financial and emotional devastation of this job loss to the Plaintiff.. Attached as Exhibit B to this declaration is a copy of a Declarations page for a policy of Employment Practices Liability Insurance [ EPLI ] issued by Chartis National Union Fire Insurance Company of Pittsburgh. I received this Declarations page about a week ago upon repeated request. The page was provided to me by John W. Lucas, bankruptcy counsel for the Debtor in Possession. I am informed and believe from this document that there is $ million insurance coverage, with no self insured retention, and $00,000 allocated to costs of legal defense. I am also informed by the Broadhead s bankruptcy counsel, William Wall, Claimant s Bankruptcy Counsel, that concurrent with this Motion he is serving discovery focused at discovery of all applicable insurance policies.. Based on my professional experience of over years as a Plaintiff s employment attorney in cases involving EPLI coverage, the types of claims outlined in Exhibit B [Proposed Complaint] are covered in due course by the type of policy and limits stated in Exhibit A [Declarations Page].. Upon the Debtor-in-possession s compliance with discovery focused on production of the EPLI policy, Plaintiff is willing to accept the limits of the policy and to withdraw his claim DECLARATION OF FRANK PRAY IN SUPPORT OF MOTION FOR RELIEF FROM THE AUTOMATIC STAY UNDER U.S.C. FILED BY MOVANT MORGAN BROADHEAD

20 Desc Declaration of Frank Pray Page of should this Court grant relief from stay to permit pursuit of the policy limits. Doing so will cause no disadvantage or harm to other creditors who have no claim upon the policy, and therefore no access to the asset. I declare under penalty of perjury under the laws of the United States of America that foregoing matters are true and correct, except matters stated on my information and belief, and those I believe to be true. Executed, October, 0, at Newport Beach, California. 0 0 Following: Exhibits A & B Frank Pray DECLARATION OF FRANK PRAY IN SUPPORT OF MOTION FOR RELIEF FROM THE AUTOMATIC STAY UNDER U.S.C. FILED BY MOVANT MORGAN BROADHEAD

21 Desc Declaration of Frank Pray Page of EXHIBIT A

22 Desc Declaration of Frank Pray Page of Employment Law Office of Frank Pray Frank Pray, SBN 0 0 Campus Drive Newport Beach, CA fpray@employee-rights-atty.com Attorney for MORGAN BROADHEAD, Plaintiff 0 SUPERIOR COURT OF CALIFORNIA COUNTY OF ORANGE CENTRAL JUDICIAL DISTRICT 0 MORGAN BROADHEAD, Plaintiff, vs. AMERICAN SUZUKI MOTOR CORPORATION and DOES through 0, inclusive. Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Case No.: DRAFT OF PROPOSED COMPLAINT TO BE FILED IF ORDER GRANTING RELIEF FROM STAY GRANTED. COMPLAINT FOR DAMAGES [FEHA DISCRIMINATION AND FAILURE OF DUTY TO ACCOMMODATE; RETALIATION] Amount in Controversy Exceeds $,000. Jury Trial Requested Plaintiff MORGAN BROADHEAD alleges generally as follows: I. PRELIMINARY ALLEGATIONS COMPLAINT FOR DAMAGES --

23 Desc Declaration of Frank Pray Page of 0 0. Defendant AMERICAN SUZUKI MOTOR CORPORATION [hereinafter ASMC or SUZUKI ] is a California Corporation with a center of operations and corporate headquarters located at E. Imperial Highway, Brea, California, where it operates as a manufacturer and distributor of automotive, marine and motorcycle transportation vehicles.. The events and circumstances leading to the wrongful termination of Plaintiff s employment by violation of the Fair Employment and Housing Act as further to be alleged occurred at Plaintiff s place of employment for SUZUKI at E. Imperial Highway, Brea, California. The Central District is the appropriate venue.. The Amount in Controversy in this case exceeds $, and places the case within the general unlimited jurisdiction of the Superior Court.. DOE Employer Defendants are sued herein as DOES through inclusively, while DOE Individual Defendants are sue herein as DOES -0. These fictitiously named Defendants are unknown to Plaintiff at this time. Plaintiff is informed and alleges that each such fictitious Defendant is in some manner legally responsible to Plaintiff for the injuries and resulting damages alleged, and Plaintiff will amend this Complaint to allege their true identities when known.. Each of the named Defendants, including DOE Defendants, was the agent for every other Defendant in carrying out the decisions and actions herein alleged. The managers, supervisors, officers and executives as may hereinafter be identified were acting in their employment capacities, were within the course and scope of their employments, or their actions and omissions were thereafter ratified and adopted by the Defendant SUZUKI.. The Plaintiff is a covered employee under the California Fair Employment and Housing Act, (c) [ FEHA ]. COMPLAINT FOR DAMAGES --

24 Desc Declaration of Frank Pray Page of 0 0. The Defendant is a covered employer under the California Fair Employment and Housing Act, (d) [ FEHA ]. Plaintiff at all relevant times suffered from a physical, neurological disability and a related mental disability as defined by Government Code Sections (k) () (A) [neurological] and (i) [mental], in that plaintiff had a learning disability caused by short term memory impairment caused by head trauma sustained in a motorcycle accident some years before his termination of employment with SUZUKI. Specifically, Plaintiff s residual brain impairment and memory loss adversely limited his ability to perform major life activities, including the ability to perform work that required learning new detailed tasks in short periods of time. Plaintiff s mental and physical disabilities are hereinafter referred to generally as the disability or impairment.. Plaintiff, with reasonable accommodation by the Defendant SUZUKI, could perform, and would perform, the essential functions of his job / work / position as Parts Administrator as more fully alleged hereinafter. 0. Plaintiff was at all times during his employment with Defendants in the protected category of disabled persons within the protection of the anti-discrimination statutes of the Fair Employment and Housing Act, Government Code Sections 0(a) et seq.. Defendant SUZUKI and Doe Defendants through are employers having five or more employees, within the meaning of covered employers under the Fair Employment and Housing Act, Government Code (d). Further, Defendant SUZUKI was at all relevant times a covered Employer within the definition and meaning of Government Code 0. and CCR () because Defendant employed or engaged fifty or more employees or contractors for each working day in any twenty consecutive weeks during 0 or 00. COMPLAINT FOR DAMAGES --

25 Desc Declaration of Frank Pray Page of 0 0. On January, 0, Plaintiff filed an administrative complaint with request for Right to Sue with the California Department of Fair Employment and Housing, stating therein that on March, 0, he gave notice of forced resignation effective April, 0. On January, 0 The Department of Fair Employment and Housing [ DFEH ] issued a Notice of Case Closure and accorded Plaintiff the right to proceed with this civil action in Case No. -0 Said Notice of Case Closure, with Right to Sue is attached and incorporated herein as Exhibit A On or about January, 0, Plaintiff caused a copy of the DFEH Complaint with Notice of Case Closure to be delivered to the Defendant(s) by certified mail, return receipt, a copy of which return receipt with signature is included within Exhibit A. Before the filing of this present Action, Plaintiff exhausted and satisfied all administrative remedies required of him as a condition of proceeding with his causes of action herein for disability discrimination, failure to accommodate a disability, failure to engage in an interactive process, and retaliation because of a request for accommodation.. Defendant(s) employed Plaintiff between March, 0 and April, 0. [Plaintiff had worked for SUZUKI for a number of years, and left to try a new employment, but returned on March, 0 in the capacity of Accessory Development Specialist. ] Plaintiff prospered in the position of Accessory Development Specialist, and enjoyed his work. Despite having some impairment due to a prior brain injury resulting from a motorcycle accident, Plaintiff performed all functions of this particular job without limitation or the need for accommodation. As Accessory Development Specialist, Plaintiff worked closely with suppliers to obtain approval for new accessories, and to negotiate contracts for manufacture and delivery of the accessories to SUZUKI as part of its new product line. The position required Plaintiff to maintain a checklist of parts to be ordered, and to anticipate and fill inventory needs by ordering from these suppliers COMPLAINT FOR DAMAGES --

26 Desc Declaration of Frank Pray Page of 0 0 on a strict schedule. Plaintiff performed these duties adequately in part because he had good rapport with his supervisor, Senior Specialist Steve Wasco, who provided him with adequate training. Plaintiff also did well in this position because there was occasional flexibility in meeting deadlines. Plaintiff s short-term memory impairment related to his previous brain injury, was not unduly taxed by the demands of the job. Wasco and Plaintiff had candid discussions in which Plaintiff explained his brain injury, and Wasco was helpful in providing Plaintiff with guidance and instruction on completing scheduling, ordering, and tracking.. With the arrival of a new President assigned from Japan, in about September 00, a major reorganization took place as part of a cost cutting program to improve Defendant ASMC s profitability. As a result, Plaintiff s department of people was reduced to two, with people laid off, and Plaintiff moved into a new position of Sr. Parts Administrator in a new Department headed by Parts Inventory Manager Hitoshi Murakami [Hereinafter Murakami ]. While this position had some of the basic functions Plaintiff performed as an Accessory Development Specialist it involved very little negotiation, no accessory development, little discussion or conversation with suppliers or co-workers, and focused almost exclusively on numerous day-to-day orders being completed for parts Plaintiff had no prior familiarity in identifying or ordering. The job required Plaintiff to log into an international ordering system each work-day. Each day, he would receive part names and numbers, and he was expected to analyze the numbers of each kind of part required by SUZUKI, to complete orders to meet manufacturing demands. Unlike his prior position as an Accessory Development Specialist, as Parts Administrator Plaintiff had no time flexibility in completing an order. The new job required Plaintiff to learn quickly a long list of new part items by name and number, as well as to learn the demand and lead time for the parts ordered. Plaintiff s short-term memory loss COMPLAINT FOR DAMAGES --

27 Desc Declaration of Frank Pray Page 0 of 0 0 somewhat impeded but did not prevent his ability to learn these new parts and the associated demand, quantity, and lead times for these parts. Plaintiff was required to complete daily sheets that listed specific order amounts based on Plaintiff s analysis of the numbers of parts needed in advance of manufacture. Because of his disability, Plaintiff s learning time to perform these detailed tasks was somewhat slower than the time required by a non-disabled person. Plaintiff s disability could result in a higher error rate if he was not provided somewhat greater training, guidance as needed, and somewhat longer time to complete his ordering tasks.. Because of his learning disability, Plaintiff needed an accommodation of increased training, guidance, and time primarily at the beginning of the new task learning process to remember a new set of work routines. [More specific explanation and more detailed outlining of the accommodation will be provided by expert testimony at the time of trial.] This additional initial training, occasional guidance, and flexibility in timing for completion of some tasks were accommodations that, if provided, would have permitted Plaintiff to perform the essential functions of his job as Parts Administrator, and were not an undue hardship in cost, personnel, or time on Defendant SUZUKI in view of its personnel, financial, and organization resources. Plaintiff had, even without the accommodation of time, guidance, and training, managed over time to learn the details of his new position, and by the time Defendant terminated Plaintiff, he had ironically learned nearly all requirements of his daily routine functions and reduced his error rate to nearly zero by the date of his forced resignation on March, 0.. Plaintiff on a number of occasions during his employment as a Parts Administrator communicated to his supervisor, Hitoshi Murakami, and/or Human Resources Manager Martha COMPLAINT FOR DAMAGES --

28 Desc Declaration of Frank Pray Page of 0 0 Barrera that he was having difficulty in his rate of learning the details of his new position because of a brain injury of years previously.. Despite information about Plaintiff s physical and mental disability, Hitoshi Murakami insisted that Plaintiff perform his duties without regard to accommodation, and Murakami took no actions whatever to identify or apply reasonable accommodations.. As a result of Murakami s refusal to accommodate Plaintiff s disability, and Murakami s insistence that Plaintiff perform by standards applied to non-disabled persons, Plaintiff s ability to learn the skills of his position was impaired and delayed compared to the time required for non-disabled co-workers. Murakami consciously chose to disregard any disability accommodation duty, and evaluated Plaintiff s performance in conscious disregard of Plaintiff s repeated requests for accommodation to the Human Resources Manager, Martha Barrera, or to Murakami directly. 0. On or about March, 0, Defendant, in the person of H.R. Manager Martha Barrera, gave Plaintiff choices concerning his future employment: ) take a 0 day medical leave of absence [even though Plaintiff had no need for such medical leave and the result of which would be to exhaust his weeks of protected employment under the California Family Rights Act.]; ) be immediately terminated for failure to perform his duties to expectation; or ) to resign his employment [and be spared of the stigma and economic handicap of having been fired from his employment.. Plaintiff both subjectively and reasonably believed his three choices were not choices at all, but a forced resignation. Plaintiff felt under the hardship of imminent termination and the threat of a negative work record that would damage substantially his future re-employment possibilities. He knew, logically, and reasonably, that his twelve weeks leave would simply be COMPLAINT FOR DAMAGES --

29 Desc Declaration of Frank Pray Page of 0 a buying of time and that his termination would follow for failure to report to work at the end of his presumed C.F.R.A. leave. Given this no choice choices, Plaintiff, under the economic and emotional duress of the situation, tendered his resignation effective April, 0.. Plaintiff s assessment of the forced resignation options at the time for one in his circumstances was reasonable because he had sought repeatedly to be accommodated for his disability, and had been plainly ignored, with no intervention by a trained Human Resources manager, Barrera, who by all appearances was in complicity with Tom Hosner, manager, and supervisor Murakami, to deny him accommodation and to force his termination.. Government Code Section 0(m) states that it shall be an unlawful employment practice... (m) For an employer or other entity covered by this part to fail to make reasonable accommodation for the known physical or mental disability of an applicant or employee. 0. Plaintiff s disability limited a major life activity as defined by Government Code Section 0(m) and Government Code Section (k)()(b)(ii) in that it made the achievement of work duties difficult but not impossible. See also Government Code Sec..(c), defining major life activity to include the performance of work.. Defendant SUZUKI management, and particularly Plaintiff s manager(s) and Defendant s Human Resources personnel had specific information from Plaintiff that his difficulties in meeting the immediate demands of his position as Parts Administrator was due to his disability. Plaintiff on several occasions requested his manager and the Human Resources manager for additional time, training, and guidance so that he could overcome his initial learning curve impairment. Plaintiff explained to Human Resources staff that the impairment COMPLAINT FOR DAMAGES --

30 Desc Declaration of Frank Pray Page of 0 0 was related to an earlier head injury. Plaintiff was clear that with such assistance he could meet the demands of the position and perform the essential functions of his job.. Defendant SUZUKI had actual and constructive knowledge of Plaintiff s disability and need for accommodation, and Plaintiff was not required by law to make a formal or explicit request for accommodation given Defendant s state of knowledge. (Prilliman v. United Air Lines, Inc. () Cal.App. th at pp. 0-.) Plaintiff s general communication to Defendant SUZUKI management of his learning disability and his need for more training, was a legally sufficient request for accommodation.. Defendant SUZUKI, had an affirmative duty to initiate an interactive process with Plaintiff pursuant to Government Code Sec.. (e) and Government Code Section 0 (n) at the time Defendant had actual or constructive knowledge of Plaintiff s disability. This interactive process would have, in due course, identified the scope and nature of needed accommodations, and that Defendant could, without undue hardship, provide those accommodations, thereby enabling Plaintiff to perform the essential functions of his job.. If Defendant SUZUKI had provided Plaintiff with the accommodations required by Government Code Section (m), Plaintiff would have been able to perform the essential functions of the job of Parts Administrator, without undue difficulty, delay, or errors. Without restricting the scope or variety of potentially suitable, required accommodations, the accommodations available and reasonable included a longer learning period, more one-on-one guidance and training in the process, and a somewhat more relaxed productivity measure in the learning phase of the parts COMPLAINT FOR DAMAGES --

31 Desc Declaration of Frank Pray Page of 0 0 administrator employment until such time as Plaintiff reached more optimal production and error-reduction capability.. Defendant could provide the accommodation needed and sought by Plaintiff without causing Defendant undue economic, personnel, or operational hardship. 0. The motivating reason reason for Plaintiff s termination of employment was to discriminate against him because of his disability, and to avoid the cost, inconvenience, and time associated with providing him reasonable accommodation. Although Defendant may allege and/or prove other reasons for its decision, but for the discrimination as the motivating factor of the decision to terminate, Plaintiff would have continued in his work as a Parts Administrator indefinitely, or found other comparable and suitable employment with Defendant without interruption in earnings. But for Defendant s discrimination and Defendant s Denial of Accommodation Rights, and Defendant s failure to take all reasonable steps to prevent discrimination, including the training of its managers and supervisors, Plaintiff would have continued successfully in his usual employment indefinitely.. As a direct and proximate result of Defendant s breach of statutory and common law duties, as herein alleged, Plaintiff was [and remains at times] fully unemployed, and was deprived of all earnings between March, 0 and October 0, 0 Plaintiff was earning about $,00.00 per annum and received non-wage benefits including vision, dental, and medical, as well as employer government benefit/tax contributions, which equal approximately $, additional dollars of annual compensation. Plaintiff has diligently sought re-employment in a variety of job classifications, and has been both willing and flexible in his search for reemployment, but he has not been successful in finding permanent full time employment. COMPLAINT FOR DAMAGES -0-

32 Desc Declaration of Frank Pray Page of 0 0 Plaintiff s occasional sporadic employment from the date of his unemployment to present have produced limited earnings in the approximate amount of $.0 per hour. As a direct and proximate result of Defendant s denial of Plaintiff s FEHA rights, Plaintiff lost anticipated earnings and pay increases, with benefits, and will incur future partial wage and benefit loss over the duration of his useful working life in an amount to be determined by further evidence presented at the time of trial, but are estimated to be a minimum average of $, per annum over the next years of work life, or approximately $00, As a direct and proximate result of Defendant s denial of Plaintiff s FEHA rights Plaintiff has suffered from sleepless nights, high levels of anxiety, bouts of depression, sadness, grieving, resentment, hurt, anger, sorrow, and despair. He feels at time as if his life and his future have been taken from him. He feels betrayed by an employer uncaring for his years of loyalty and service to SUZUKI. Plaintiff loved the world of motorcycles, even after his accident, and viewed his employment with SUZUKI as more than just a job, but a part of his interest and fascination with the SUZUKI product line. Plaintiff has suffered emotional injury damages in such amount as he will establish by testimony and expert opinion at the time of trial.. Government Code (b) accords Plaintiff, as a successful litigant, to recover expert witness fees, costs of litigation, and his attorney s fees in presenting the case. Plaintiff has incurred and will incur such fees and costs, and upon an Award in his favor, will further petition the assigned Arbitrator to amend the Award to include reimbursement to Plaintiff for costs and fees.. The Defendant s decision makers violating Plaintiff s FEHA Rights as herein alleged included trained and knowledgeable Human Resource officials, and high ranking executives of the company, including its manager Tom Hosner; supervisor Histoshi Murakami and Human Resources manager, Martha Barrera. Each of these named and yet to be identified decision COMPLAINT FOR DAMAGES --

33 Desc Declaration of Frank Pray Page of 0 0 makers were in executive positions to determine significant matters of Company policy and direction, to hire, fire, demote and lay-off, and/or to make decisions or recommendations of substantial importance and strategic significance and/or operational direction. These corporate decisions makers directly, or upon review and approval, caused Plaintiff s termination of employment knowing that doing so was a violation of Plaintiff s FEHA rights, yet proceeded in that decision in conscious disregard of Plaintiff s rights. As such, their actions are imputed to the Corporate Defendant pursuant to Civil Code, and Defendant is liable to Plaintiff for exemplary damages in a multiplier of actual damages consistent with constitutional limits.. Government Code (b) accords Plaintiff, as a successful litigant, to recover expert witness fees, costs of litigation, and his attorney s fees in presenting the case. Plaintiff has incurred and will incur such fees and costs, and upon an Award in his favor, will further petition the assigned Arbitrator to amend the Award to include reimbursement to Plaintiff for costs and fees. I. FIRST CAUSE OF ACTION [DISCRIMINATION BASED ON ACTUAL AND PERCEIVED DISABILITY] (Against all Defendants and Does). Plaintiff refers to and incorporates by reference his Preliminary Allegations hereinabove alleged.. The Defendant s decision makers violating Plaintiff s CFRA Rights as herein alleged included trained and knowledgeable Human Resource officials, and high ranking executives of the COMPLAINT FOR DAMAGES --

34 Desc Declaration of Frank Pray Page of 0 0 company, including its Chairman, President, and Head of Human Resources, each of whom will be further identified by discovery. These company officers included Hitoshi Murakami, for Suzuki. Each of these named and yet to be identified decision makers were in executive positions to determine significant matters of Company policy and direction, to hire, fire, demote and lay-off, and/or to make decisions or recommendations of substantial importance and strategic significance and/or operational direction. These corporate decisions makers directly, or upon review and approval, caused Plaintiff s termination of employment knowing that doing so was a violation of Plaintiff s FEHA rights, yet proceeded in that decision in conscious disregard of Plaintiff s rights. As such, their actions are imputed to the Corporate Defendant pursuant to Civil Code, and Defendant is liable to Plaintiff for exemplary damages in a multiplier of actual damages consistent with constitutional limits.. Government Code (b) accords Plaintiff, as a successful litigant, to recover expert witness fees, costs of litigation, and his attorney s fees in presenting the case. Plaintiff has incurred and will incur such fees and costs, and upon an Award in his favor, will further petition the assigned Arbitrator to amend the Award to include reimbursement to Plaintiff for costs and fees. II. SECOND CAUSE OF ACTION [FAILURE TO CONDUCT STATUTORILY MANDATED INTERACTIVE PROCESS] (Against all Defendants and Does) 0. Plaintiff refers to and incorporates by reference his Preliminary Allegations hereinabove alleged. COMPLAINT FOR DAMAGES --

35 Desc Declaration of Frank Pray Page of 0 0 [ALLEGATIONS TO BE ADDED TO GENERALLY ALLEGE THE MINIMUM STATUTORY STANDARD AND CASE LAW OBLIGATIONS IN AN INTERACTIVE PROCESS WERE NOT FOLLOWED BY SUZUKI. ] III. THIRD CAUSE OF ACTION [FAILURE TO CONDUCT STATUTORILY MANDATED INTERACTIVE PROCESS] (Against all Defendants and Does). Plaintiff refers to and incorporates by reference his Preliminary Allegations hereinabove alleged.. [ALLEGATIONS TO BE ADDED TO GENERALLY ALLEGE THE MINIMUM STATUTORY STANDARD AND CASE LAW OBLIGATIONS IN AN INTERACTIVE PROCESS WERE NOT FOLLOWED BY SUZUKI.] IV. FOURTH CAUSE OF ACTION [FAILURE TO CONDUCT PERIOD ANTI-HARASSMENT AND DISCRIMINATION TRAINING] (Against all Defendants and Does). Plaintiff refers to and incorporates by reference his Preliminary Allegations hereinabove alleged.. [ALLEGATIONS TO BE ADDED TO GENERALLY ALLEGE THAT SUZUKI FAILED IN A STATUTORY DUTY TO PROVIDE ANTI- COMPLAINT FOR DAMAGES --

36 Desc Declaration of Frank Pray Page of 0 0 HARASSMENT AND ANTI-DISCRIMINATION TRAINING THAT WOULD HAVE ABATED AND POSSIBLY PREVENTED INJURY TO BROADHEAD. ] V. FIFTH CAUSE OF ACTION [RETALIATION BECAUSE OF DIRECT OR IMPUTED KNOWLEDGE OF A REQUEST FOR ACCOMMODATION RIGHTS] (Against all Defendants and Does). Plaintiff refers to and incorporates by reference his Preliminary Allegations hereinabove alleged.. [ALLEGATIONS TO BE ADDED TO GENERALLY ALLEGE THAT SUZUKI MANAGEMENT RETALIATED AGAINST PLAINTIFF BECAUSE OF HIS PERSISTENT REQUEST FOR TRAINING AS AN ACCOMMODATION. ] VI. SIXTH CAUSE OF ACTION [FAILURE TO REASONABLY ACCOMMODATE A KNOWN DISABILITY] (Against all Defendants and Does) COMPLAINT FOR DAMAGES --

37 Desc Declaration of Frank Pray Page 0 of. Plaintiff refers to and incorporates by reference his Preliminary Allegations hereinabove alleged.. [ALLEGATIONS TO BE ADDED TO GENERALLY ALLEGE THE MINIMUM STATUTORY STANDARD AND CASE LAW OBLIGATIONS TO ACCOMMODATE WERE NOT FOLLOWED BY SUZUKI.] 0 0 WHEREFORE, Plaintiff requests that the Court enter an Award of Damages to Plaintiff against the Defendant in such amount as will fairly, justly, and adequately compensate the Plaintiff for the following losses: AS TO THE FIRST CAUSE OF ACTION [DISCRIMINATION BASED ON ACTUAL AND PERCEIVED DISABILITY]: a. For Plaintiff s past full wage and benefit loss before re-employment and mitigation; b. For Plaintiff s past partial wage and benefit losses; c. For Plaintiff s future partial wage and benefit losses; d. For punitive damages; e. For reasonable attorney s fees pursuant to Govt. C. (b), with such lodestar as may be further proven upon presentation of a memorandum of costs/fees; and f. For expert witness costs and other usual and customary costs of litigation, also pursuant to Govt. C. (b). AS TO THE SECOND CAUSE OF ACTION [FAILURE TO CONDUCT STATUTORILY MANDATED INTERACTIVE PROCESS]: g. For Plaintiff s past full wage and benefit loss before re-employment and mitigation; COMPLAINT FOR DAMAGES --

38 Desc Declaration of Frank Pray Page of 0 0 h. For Plaintiff s past partial wage and benefit losses; i. For Plaintiff s future partial wage and benefit losses; j. For punitive damages; k. For reasonable attorney s fees pursuant to Govt. C. (b), with such lodestar as may be further proven upon presentation of a memorandum of costs/fees; and l. For expert witness costs and other usual and customary costs of litigation, also pursuant to Govt. C. (b). AS TO THE THIRD CAUSE OF ACTION [FAILURE TO CONDUCT STATUTORILY MANDATED INTERACTIVE PROCESS]: a. For Plaintiff s past full wage and benefit loss before re-employment and mitigation; b. For Plaintiff s past partial wage and benefit losses; c. For Plaintiff s future partial wage and benefit losses; d. For punitive damages; e. For reasonable attorney s fees pursuant to Govt. C. (b), with such lodestar as may be further proven upon presentation of a memorandum of costs/fees; and f. For expert witness costs and other usual and customary costs of litigation, also pursuant to Govt. C. (b). AS TO THE FOURTH CAUSE OF ACTION [FAILURE TO CONDUCT PERIOD ANTI- HARASSMENT AND DISCRIMINATION TRAINING]: a. For Plaintiff s past full wage and benefit loss before re-employment and mitigation; b. For Plaintiff s past partial wage and benefit losses; c. For Plaintiff s future partial wage and benefit losses; d. For punitive damages; COMPLAINT FOR DAMAGES --

39 Desc Declaration of Frank Pray Page of 0 0 e. For reasonable attorney s fees pursuant to Govt. C. (b), with such lodestar as may be further proven upon presentation of a memorandum of costs/fees; and f. For expert witness costs and other usual and customary costs of litigation, also pursuant to Govt. C. (b). AS TO THE FIFTH CAUSE OF ACTION [RETALIATION BECAUSE OF DIRECT OR IMPUTED KNOWLEDGE OF A REQUEST FOR ACCOMMODATION RIGHTS]: m. For Plaintiff s past full wage and benefit loss before re-employment and mitigation; n. For Plaintiff s past partial wage and benefit losses; o. For Plaintiff s future partial wage and benefit losses; p. For punitive damages; q. For reasonable attorney s fees pursuant to Govt. C. (b), with such lodestar as may be further proven upon presentation of a memorandum of costs/fees; and r. For expert witness costs and other usual and customary costs of litigation, also pursuant to Govt. C. (b). AS TO THE SIXTH CAUSE OF ACTION [FAILURE TO REASONABLY ACCOMMODATE A KNOWN DISABILITY]: s. For Plaintiff s past full wage and benefit loss before re-employment and mitigation; t. For Plaintiff s past partial wage and benefit losses; u. For Plaintiff s future partial wage and benefit losses; v. For punitive damages; w. For reasonable attorney s fees pursuant to Govt. C. (b), with such lodestar as may be further proven upon presentation of a memorandum of costs/fees; and COMPLAINT FOR DAMAGES --

40 Desc Declaration of Frank Pray Page of 0 0 x. For expert witness costs and other usual and customary costs of litigation, also pursuant to Govt. C. (b). AS TO ALL CAUSES OF ACTION: a. For the legal rate of interest on all sums certain, including lost and unpaid wages determined by reasonable calculation; and b. For such other relief, legal or equitable, as may be appropriate in the interest of justice. Dated: NOVEMBER, 0 Frank Pray, Attorney for Plaintiff, MORGAN BROADHEAD. REQUEST FOR JURY TRIAL. Plaintiff requests trial by jury, and will post jury fees on notice. Dated: NOVEMBER, 0. Frank Pray, Attorney for Plaintiff, MORGAN BROADHEAD. COMPLAINT FOR DAMAGES --

41 STATE OF CALIFORNIA Desc - STATE Declaration AND CONSUMER of SERVICES Frank AGENCY Pray Page of GOVERNOR EDMUND G. BROWN JR. DEPARTMENT OF FAIR EMPLOYMENT & HOUSING DIRECTOR PHYLLIS W. CHENG Kausen Drive, Suite 00 Elk Grove CA (00) - Videophone () - TDD (00) contact.center@dfeh.ca.gov January, 0 Frank Pray 0 Campus Drive Newport Beach, CA 0 RE: -0 - Broadhead Morgan - Right To Sue NOTICE TO COMPLAINANT'S ATTORNEY Attached is a copy of your client's complaint of discrimination filed with the Department of Fair Employment and Housing (DFEH) pursuant to the California Fair Employment and Housing Act, Government Code section 00, et seq. Also attached is a copy of your client's Notice of Case Closure, which constitutes your client's right-to-sue notice. Pursuant to Government Code section, DFEH will not serve these documents on the employer. Please refer to the attached Notice of Case Closure and Right to Sue for information regarding filing a private lawsuit in the State of California. Sincerely, Department of Fair Employment and Housing

42 STATE OF CALIFORNIA - STATE AND CONSUMER SERVICES AGENCY Desc Declaration of Frank Pray Page of GOVERNOR EDMUND G. BROWN JR. DEPARTMENT OF FAIR EMPLOYMENT & HOUSING DIRECTOR PHYLLIS W. CHENG Kausen Drive, Suite 00 Elk Grove CA (00) - Videophone () - TDD (00) contact.center@dfeh.ca.gov January, 0 RE: -0 - Broadhead Morgan - Right To Sue Notice of Filing of Discrimination Complaint Enclosed is a copy of a complaint that has been filed with the Department of Fair Employment and Housing (DFEH) in accordance with Government Code section 0. This constitutes service of the complaint pursuant to Government Code section. Complainant has requested an authorization to file a lawsuit. This complaint is not being investigated and is being closed immediately. A copy of the closing letter and right to sue is enclosed for your records. NO RESPONSE TO DFEH IS REQUESTED OR REQUIRED. Please see the next page for the Respondent(s) name and address Page /

43 STATE OF CALIFORNIA - STATE AND CONSUMER SERVICES AGENCY Desc Declaration of Frank Pray Page of GOVERNOR EDMUND G. BROWN JR. DEPARTMENT OF FAIR EMPLOYMENT & HOUSING DIRECTOR PHYLLIS W. CHENG Kausen Drive, Suite 00 Elk Grove CA (00) - Videophone () - TDD (00) contact.center@dfeh.ca.gov January, 0 RE: -0 - Broadhead Morgan - Right To Sue Notice of Filing of Discrimination Complaint Martha Barrera Agent for Service for American Suzuki Motor Corporation Hitoshi Murakami E Imperial Highway E. Imperial Hwy. Brea CA Brea CA Page /

44 Desc Declaration of Frank Pray Page of CALIFORNIA DEPARTMENT OF FAIR EMPLOYMENT AND HOUSING EMPLOYMENT COMPLAINT OF DISCRIMINATION UNDER THE PROVISIONS OF THE CALIFORNIA FAIR EMPLOYMENT AND HOUSING ACT DFEH INQUIRY NUMBER: -0 COMPLAINANT NAME: Morgan Broadhead NAMED IS THE EMPLOYER, PERSON, LABOR ORGANIZATION, EMPLOYMENT AGENCY, APPRENTICESHIP COMMITTEE, OR STATE OR LOCAL GOVERNMENT AGENCY WHO DISCRIMINATED AGAINST ME: RESPONDENT NAME: American Suzuki Motor Corporation AGENT FOR SERVICE NAME: Martha Barrera TELEPHONE NUMBER: ADDRESS (AGENT FOR SERVICE): E Imperial Highway CITY/STATE/ZIP: Brea, CA NO. OF EMPLOYEES/MEMBERS: 0 DATE MOST RECENT DISCRIMINATION TOOK PLACE: Apr, 0 TYPE OF EMPLOYER: Private Employer CO-RESPONDENT(S): NAME Hitoshi Murakami American Suzuki Motor Corporation ADDRESS E. Imperial Hwy. Brea CA I wish to pursue this matter in court. I hereby request that the Department of Fair Employment and Housing provide a right to sue. I understand that if I want a federal right to sue notice, I must visit the U.S. Equal Employment Opportunity Commission (EEOC) to file a complaint within 0 days of receipt of the DFEH "Notice of Case Closure and Right to Sue," or within 00 days of the alleged discriminatory act, whichever is earlier. I have not been coerced into making this request, nor do I make it based on fear of retaliation if I do not do so. I understand it is the Department of Fair Employment and Housing's policy to not process or reopen a complaint once the complaint has been closed on the basis of "Complainant Elected Court Action." By submitting this complaint, I am declaring under penalty of perjury under the laws of the State of California that, to the best of my knowledge, all information contained in this complaint is true and correct, except matters stated on my information and belief, and I declare that those matters I believe to be true. DATED January, 0 At Newport Beach VERIFIED BY:Frank Pray, Attorney for Complainant DFEH (0/) DEPARTMENT OF FAIR EMPLOYMENT AND HOUSING DATE FILED: Jan, 0 MODIFIED: Jan, 0 STATE OF CALIFORNIA Page /

45 CALIFORNIA Desc Declaration DEPARTMENT of Frank OF Pray FAIR EMPLOYMENT Page of AND HOUSING EMPLOYMENT COMPLAINT OF DISCRIMINATION UNDER THE PROVISIONS OF THE CALIFORNIA FAIR EMPLOYMENT AND HOUSING ACT I ALLEGE THAT I EXPERIENCED: Discrimination, Harassment, Retaliation ON OR BEFORE: Apr, 0 BECAUSE OF MY ACTUAL OR PERCEIVED: Disability - including HIV and AIDS, Engagement in Protected Activity, Family Care or Medical Leave, Race AS A RESULT, I WAS: Demoted, Denied a good faith interactive process, Denied a work environment free of discrimination and/or retaliation, Denied or forced to transfer, Denied reasonable accommodation, Terminated, Other Denied adequate training and assistance related to my disability, failure to accommodate, Failure to prevent retaliation for requesting accommodations, Failure to adequately investigate STATE WHAT YOU BELIEVE TO BE THE REASON(S) FOR DISCRIMINATION: There are several causes of action arising under the California Fair Employment and Housing Act, but all are connected to plaintiff status as a disabled person. The causes of action include: disability discrimination, failure to accommodate a disability, failure to adequately investigate and correct discrimination following a complaint of discriminatory treatment by the plaintiff, retaliation against the plaintiff because of his complaints, and failure to take all reasonable steps to prevent discrimination and harassment and to identify the need for accommodation to the use of adequate training of management personnel. Summary of the Facts:The plaintiff has been a long time lover of motorcycles, and in that pursuit and passion he became an employee of Suzuki Corporation. There was an unfortunate motorcycle accident in which he sustained a head injury, with resulting mental impairment. The resulting disability was not severe enough to prevent him from performing the essential functions of his job, but he did require some limited accommodation because of a learning impediment related to the time necessary to master the initials requirements of a highly detailed job for ordering parts. Plaintiff did not make a formal request for accommodation, but his repeated request for assistance, with the explanation that he was having difficulty because of prior injury, legally constituted a sufficient request for accommodation. In a previous position with Tsuzuki, despite the injury, with a positive assistance of his then supervisor, the plaintiff performed his tasks to expectation. With the arrival of a new plant manager, the plaintiff was transferred to another department. The plaintiff did not have previous experience with the requirements for ordering parts for this particular department. Compared with its previous position, he had little interaction or negotiation by telephonic conversation. He was required to learn the particular part numbers for numerous parts. He was slower than his colleagues in making progress. However, he was making progress, and was able to perform his job with increasing ability when given training and opportunity. He requested this training on several occasions from his new manager, Mr. Hitoshi. Mr. Hitoshi was busy, and while providing some assistance, preferred to require Mr. Broadhead to make progress without regard to his disability. Ms. Arroyo also communicated with the human resources department for assistance during this time of training. Specifically, he requested more training and time to learn the requirements of the job. Human Resources was not cooperative are helpful. On March, 0, the plaintiff was called into the Human Resources department, and provided with choices: ] resign, ]: take a 0 day extended medical leave [even though he had no medical disability at the time] or ] be immediately fired. Not surprisingly, in order to preserve whatever good work record he had for future employment, he elected to resign. His resignation was involuntary because not a true choice. DFEH (0/) DEPARTMENT OF FAIR EMPLOYMENT AND HOUSING DATE FILED: Jan, 0 MODIFIED: Jan, 0 STATE OF CALIFORNIA Page /

46 Desc Declaration of Frank Pray Page of STATE OF CALIFORNIA - STATE AND CONSUMER SERVICES AGENCY GOVERNOR EDMUND G. BROWN JR. DEPARTMENT OF FAIR EMPLOYMENT & HOUSING DIRECTOR PHYLLIS W. CHENG Kausen Drive, Suite 00 Elk Grove CA (00) - Videophone () - TDD (00) contact.center@dfeh.ca.gov Jan, 0 Morgan Broadhead c/o Frank Pray, 0 Campus Drive Newport Beach, CA 0 RE: -0 - Broadhead Morgan - Right To Sue Notice of Case Closure and Right to Sue Dear Morgan Broadhead: This letter informs you that the above-referenced complaint that was filed with the Department of Fair Employment and Housing (DFEH) has been closed effective Jan, 0 because an immediate Right to Sue notice was requested. DFEH will take no further action on the complaint. This letter is also your Right to Sue notice. According to Government Code section, subdivision (b), a civil action may be brought under the provisions of the Fair Employment and Housing Act against the person, employer, labor organization or employment agency named in the above-referenced complaint. The civil action must be filed within one year from the date of this letter. To obtain a federal Right to Sue notice, you must visit the U.S. Equal Employment Opportunity Commission (EEOC) to file a complaint within 0 days of receipt of this DFEH Notice of Case Closure or within 00 days of the alleged discriminatory act, whichever is earlier. DFEH does not retain case files beyond three years after a complaint is filed, unless the case is still open at the end of the three-year period. Sincerely, Department of Fair Employment and Housing cc: Martha Barrera, Agent for Service for American Suzuki Motor Corporation Hitoshi Murakami American Suzuki Motor Corporation

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