1 william mcgrane [057761]...2019/05/28 · first amended complaint for penal fines mathew skogebo,...

First Amended Complaint for Penal Fines

Mathew Skogebo, et. al. v. Cofiroute USA, LLC, et. al., Case No. 8:19-CV-00739-AG-JDEx

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WILLIAM MCGRANE [057761] MATTHEW SEPUYA [287947] MCGRANE PC Four Embarcadero Center, 14th Floor San Francisco, CA 94111 Telephone: (415) 292-4807 [email protected] [email protected]

Additional firms listed on the following page

Attorneys for Plaintiffs Mathew Skogebo, an individual person and Sanket Vinod Thakur, an individual person, on behalf of themselves and all other persons similarly situated.

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA (SOUTHERN DIVISION)

MATHEW SKOGEBO, an individual person, and SANKET VINOD THAKUR, an individual person on behalf of themselves and all other persons and entities similarly situated,

Plaintiffs, v.

COFIROUTE USA, LLC, a Delaware Limited Liability Company, ORANGE COUNTY TRANSPORTATION AUTHORITY, a California governmental entity and RIVERSIDE COUNTY TRANSPORTATION COMMISSION, a California governmental entity

Defendants.

Case No. 8:19-CV-00739-AG-JDEx

CLASS ACTION JURY TRIAL DEMANDED FIRST AMENDED COMPLAINT FOR PENAL FINES

Case 8:19-cv-00739-AG-JDE Document 20 Filed 05/28/19 of 38 Page ID #:125

mailto:[email protected]


First Amended Complaint for Penal Fines


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MICHAEL HASSEN [124823] REALLAW PC 1981 N. Broadway, Suite 280 Walnut Creek, CA 94596 Telephone: (925)-359-7500 [email protected] MICHAEL WALSH [155401] The Walsh Firm, PC 38 Corporate Park Irvine, CA 92606 Telephone: (949)-724-1350 [email protected]



1 First Amended Complaint for Penal Fines


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Come now Plaintiffs and allege as follows:

Parties

1. Plaintiff Mathew Skogebo (Skogebo) is a native born natural person residing in

Riverside County, California.

2. Plaintiff Sanket Vinod Thakur (Thakur) is a foreign born natural person residing

in San Diego County, California. Thakur is not a citizen of the United States and thus he cannot

be deemed a California citizen under any circumstances.

3. Thakur holds both a Bachelor of Science degree from the Sardar Patel College of

Engineering and a Master’s of Science degree from Syracuse University. He is lawfully residing

in this country pursuant to a work visa that allows him to be employed as a test engineer by

Qualcomm in San Diego, California.

4. Skogebo and Thakur are sometimes hereafter collectively referred to as the

Nonsubscribers.

5. Neither the Nonsubscribers nor the Class Members (as that term is defined, infra)

have ever been subscribers of the 91 Express Lanes (as that term is defined, infra).

6. Defendant Cofiroute USA, LLC (CUSA) is a Delaware limited liability company

with its principle place of business in Orange County, California. The citizenship of CUSA is

presently unknown to the Nonsubscribers because, while CUSA has made a first appearance in

this case through its counsel, such counsel have thus far failed to file a Local Rule 7.1−1 Notice

of Interested Parties and as a limited liability company CUSA’s citizenship is deemed to be that

of its ultimate owner or owners, whose identity or identities are presently unknown to the

Nonsubscribers.

7. Defendant Orange County Transportation Authority (OCTA) is a California

governmental entity with its principle place of business in Orange County, California. OCTA is a

California citizen.




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8. Defendant Riverside County Transportation Commission (RCTC) is a California

governmental entity with its principle place of business in Riverside County, California. RCTC

is a California citizen.

9. CUSA, OCTA, and RCTC are sometimes hereafter collectively referred to as

Defendants.

Jurisdiction

10. The Class Members (as that term is defined, infra) are citizens of many different

states of the United States and foreign countries such that minimal diversity exists in this case for

purposes of the federal Class Action Fairness Act of 2005 (28 U.S.C. Sections 1332(d) [CAFA]).

11. This case involves more than five million dollars ($5,000,000) in penal fines.

12. This case is not subject to either the local controversy (CAFA Section

1332(d)(4)(A)) or the home state (CAFA Section 1332(d) (4)(B)) provisions of CAFA which

provisions, in the former case, permit the District Court to abstain from asserting original

jurisdiction over CAFA cases and in the latter case require the District Court to abstain from

asserting original jurisdiction over CAFA cases.

13. This is because, insofar as the local controversy (CAFA Section 1332(d)(4)(A))

exception is concerned class actions, based on the same or similar facts have been filed by

others. See Chavez v. Cofiroute USA LLC, Orange County Superior Court Case No. 30-2018-

01005771-CU-MC-CXC (the Chavez state case). A file endorsed copy of the complaint filed

July 16, 2018, in the Chavez state case is attached hereto as Exhibit 1.

14. This may also be true because CUSA may be entirely owned by natural persons or

corporations who none of them are California citizens.

15. This is also because insofar as both the local controversy (CAFA Section

1332(d)(4)(A)) exception and the home state (CAFA Section 1332(d)(4)(B)) provisions of

CAFA, no more than sixty-six and two thirds percent (66 2/3%) of the Persons (as that term is

defined, infra) who are the Class Members (as that term is defined, infra) are California citizens.




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16. Put another way, the Nonsubscribers are informed and believe and on that basis

allege that not less than thirty-three and one thirds percent (33 1/3%) of the Persons (as that term

is defined, infra) who are the Class Members (as that term is defined, infra) necessarily fall into

one or more of the following several categories:

A. Private corporations which are neither incorporated in California law nor which

have their principal place of business in California;

B. Private partnerships, private limited liability companies and other unincorporated

private enterprises of any kind—none of whose owners are California citizens.

C. Foreign born natural persons who reside in California but are not naturalized

citizens of the United States;

D. Natural persons who do not reside in California and are thus not California citizens.

17. The zip code methodology (ZIP Method) which Defendants have previously

employed in the related case of Thompson v. Cofiroute USA, LLC et. al. (Thompson), United

States District Court for the Central District of California, Case No. 8:19-CV-00769 FMO—

which Zip Method the Nonsubscribers now anticipate Defendants will employ for the same

purposes here as they do in Thompson—does not establish the California citizenship of any of

the Persons (as that term is defined, infra) in Categories A, B, C, and D with any reasonable

degree of certainty whatsoever.

18. This is because, inter alia, the ZIP Method is irrelevant to what any private

corporation’s state of incorporation or where the location of any private corporation’s corporate

headquarters may be and it is only those factors which determine what the citizenship of any

private corporation may be.

19. Also, the ZIP Method is irrelevant to the citizenship of any private partnerships,

private limited liability companies, and other unincorporated private enterprises of any kind

since it is the citizenship of the ultimate owners of such unincorporated private enterprises that is

determinative of what citizenship such unincorporated private enterprises are deemed to have.




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20. Also, the ZIP Method is irrelevant to where a natural person residing in California

was born or, if they are not a United States citizen, what their naturalization status may be.

21. Also, while the ZIP Method could prove useful for purposes of determining if a

natural person does not reside in California and is thus not a California citizen, the Zip Method

does not indicate which False Notices (as that term is defined, infra) were sent to natural persons

who do not reside in California versus which False Notices (as that term is defined, infra) sent to

non-California zip codes were sent to private corporations, private partnerships, private limited

liability companies, and other unincorporated private enterprises of any kind. The zip codes of

the latter being entirely irrelevant in terms of determining their citizenship as entities and not

natural persons.

22. Finally, and since by definition none of the Class Members (as that term is

defined, infra) had a valid FasTrak® account during the Class Period (as that term is defined,

infra), any possible logical connection (there is none) between a the ownership by a Person (as

that term is defined, infra) of a valid FasTrak® account has no relevance to any issue in this

case, including issues related to determining whether abstention for exercising CAFA

jurisdiction in this case is appropriate or not.

23. In order to prove that more than sixty-six and two thirds percent (66 2/3%) of the

Persons (as that term is defined, infra) who are the Class Members (as that term is defined, infra)

are California citizens, the Defendants must necessarily disclose all of the Protected PII (as that

term is defined, infra) so as to provide the Nonsubscribers with the ability to determine for

themselves (i) how many of the Class Members (as that term is defined, infra) are private

corporations and what their citizenship may be; (ii) how many of the Class Members (as that

term is defined, infra) are private partnerships, private limited liability companies, and other

private unincorporated business enterprises of any kind and what their citizenship may be; (iii)

how many of the Class Members (as that term is defined, infra) are natural persons residing

inside of California and what their citizenship may be and, finally (iv) how many of the Class




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Members (as that term is defined, infra) are natural persons residing outside of California and are

thus not citizens of California.

24. Defendants, however, have no lawful right to disclose or otherwise use the

Protected PII (as that term is defined, infra) to defeat federal jurisdiction here.

25. Should Defendants use the Protected PII (as that term is defined, infra) in an

attempt to defeat federal jurisdiction here (or for any other purpose not compelled by a final non-

appealable order of the Court) then Defendants must and should be adjudged to have further

violated Streets & Highways Code section 34190 and deemed liable to the Class Members (as

that term is defined, infra) for further penal fines as a result of said further violation of Streets &

Highways Code section 34190.

Venue

26. Venue is appropriate in this District and Division because Orange County,

California is where the relevant claim for relief for penal fines arose.

Limitation of Actions

27. To the extent this putative class action is brought by the Class against CUSA, and

absent tolling, the applicable statute of limitations is one year from occurrence. See California

Code of Civil Procedure section 340(a).

28. On July 16, 2018, the Chavez state case was filed against CUSA, thereby tolling

the one year statute of limitations against CUSA as of that date. See Exhibit 1, supra.

29. To the extent this putative class action is brought by the Class against OCTA and

RCTC, California Government Code section 912.4 provides that no claim may be filed seeking

money from a California governmental entity more than one year one year from occurrence.

30. On October 12, 2018, Thakur served OCTA with a class action administrative

claim consistent with the allegations made in this First Amended Complaint for Penal Fines, etc.

(First Amended Complaint) against OCTA, which claim was denied by OCTA on November 29,

2018. See Exhibit 2.




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31. On October 15, 2018, Skogebo served RCTC with a class action administrative

claim consistent with the allegations made in this First Amended Complaint against RCTC,

which claim was denied by RCTC on November 28, 2018. See Exhibit 3.

Charging Allegations

32. All during the Class Period (as that term is defined, infra) Defendants have each

acted as the agents of the others in doing and failing to do all of the things alleged in this First

Amended Complaint.

33. The terms “transportation agency,” “electronic toll collection system,” and “toll

highway,” as employed throughout this First Amended Complaint are all otherwise defined in

California Streets & Highways Code sections 31490(l)-(m).

34. The terms “pay-by-plate toll payment” and “valid vehicle license plates properly

attached to the vehicle” as employed throughout this First Amended Complaint are both

otherwise defined in California Vehicle Code sections 23302(d)-(e).

35. Defendants are all transportation agencies operating an electronic toll collection

system with respect to a toll highway (the 91 Express Lanes) that is partially owned by OCTA

and partially owned by RCTC, which 91 Express Lanes CUSA operates for the benefit of OCTA

and RCTC pursuant to a written contract to which all Defendants are parties.

36. All during the Class Period (as that term is defined, infra), the Class Members (as

that term is defined, infra) have all had valid vehicle license plates properly attached to their

vehicles, the existence of which valid vehicle license plates properly attached to the vehicles

belonging to the Class Members (as that term is defined, infra) having self-evidently been the

sole means by which Defendants were enabled to lawfully acquire the Protected PII (as that term

is defined, infra) from the California Department of Motor Vehicles in the first place.

37. All during the Class Period (as that term is defined, infra) the 91 Express Lanes

have knowingly permitted pay-by-plate toll payment.

38. Given the facts stated in ¶¶ 36-37, supra, the mere fact that the Class Members (as

that term is defined, infra) drove the 91 Express Lanes during the Class Period (as that term is




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defined, infra) without any of their number having had a valid FasTrak® account did not violate

California Vehicle Code section 23302 or any other California criminal statute.

39. As a matter of law, the only thing that the conduct of the Class Members (as that

term is defined, infra) as described in ¶¶ 36-37, supra, ever could even possibly have violated

was California Vehicle Code section 23302.5 (the 23302.5 Violations).

40. Responding to what were therefore, and of necessity, merely the 23302.5

Violations of the Class Members (as that term is defined, infra), CUSA sent the Class Members

(as that term is defined, infra) certain Notices of Toll Evasion Violation and/or Notices of

Delinquent Toll Evasion Violation (collectively the False Notices). Copies of these False Notices

are attached hereto as Group Exhibit 4.

41. On their face, the False Notices improperly accused the Class of having

committed a criminal infraction subject to a citation by the California Highway Patrol.

42. This improper claim was made despite the fact that, as the public record

demonstrates, Defendants themselves knew that the Class Members (as that term is defined,

infra) had not possibly committed any criminal infraction punishable under the California Penal

Code by virtue of the Class Members (as that term is defined, infra) having driven the 91

Express Lanes during the Class Period (as that term is defined, infra) without any of their

number having had a valid FasTrak® account because the 23302.5 Violations were entirely civil

in nature and did not even possibly constitute a criminal infraction punishable under the

California Penal Code.

43. Defendants’ knowledge that they were continuously making false accusations of

criminality against the Class Members (as that term is defined, infra) is even more pointedly

demonstrated by the existence of OCTA’s Ordinance No. 2010-1 at §§ 2(d) and 3(c)(2) and the

parallel requirements of RCTC’s Ordinance No. 16-001 § 3(d) (collectively, the 23302.5

OCTA/RCTC Ordinances) all during the Class Period (as that term is defined, infra).

44. On their face, the 23302.5 OCTA/RCTC Ordinances required, as a matter of law,

and at all times during the Class Period (as that term is defined, infra), that the Class Members




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(as that term is defined, infra) neither could nor should be charged by CUSA with anything other

than the 23302.5 Violations.

45. In addition to the foregoing, the misleading nature of the False Notices has

recently been made the subject of a binding judicial admission on the part of CUSA’s two

principals, OCTA and RCTC, which two governmental agencies, in direct response to a writ

petition that the Nonsubscribers had previously filed against them (see, e.g., Sanket Thakur, et.

al. v. Orange County Transportation Authority, et. al., Orange County Superior Court Case No.

30-2018-01025555-CU-WM-CJC), immediately required that CUSA correct the form of the

False Notices by substituting replacement forms of such notices (the True Notices) in the place

and stead of the False Notices, which substitution was, in fact, accomplished on as of November

1, 2018. Copies of the forms of these True Notices previously provided to the Nonsubscribers’

counsel by OCTA and RCTC are attached as Group Exhibit 5.

46. OCTA and RCTC collectively and voluntarily paid the Nonsubscribers’ counsel

the sum of fifteen thousand dollars ($15,000) as and for private attorney general fees pursuant to

Code of Civil Procedure section 128.5 as a reward for the Nonsubscribers’ counsels’ having

forced those two governmental entities to act in tandem to cause CUSA to replace the False

Notices with the True Notices and thereby avoid further vicarious Streets & Highways Code

section 31490 liability on the part of OCTA and RCTC to future nonsubscribers to the 91

Express Lanes.

47. On their face, the True Notices now properly identify California Vehicle Code

section 23302.5 as the sole and only provision of the California Vehicle Code which any

motorists driving the 91 Express Lanes in the future without a valid FasTrak® account may

properly be charged with violating.

48. On their face, the True Notices do not market toll related products and services to

nonsubscribers of the 91 Express Lanes.

49. On their face, the False Notices did, however, knowingly market toll related

products and services to the Class (as that term is defined, infra), to wit, subscriptions to the 91




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Express Lanes, all during the Class Period (as that term is defined, infra) and all using Class (as

that term is defined, infra) personally identifiable information (the Protected PII)—as that latter

term is defined by California Streets & Highways Code section 31490(o)—which Protected PII

had initially been collected for enforcement purposes by CUSA acting in its capacity as the

transportation agency that operated an electronic toll collection system for OCTA and RCTC

with respect to the 91 Express Lanes.

50. Defendants’ conduct respecting the False Notices was punishable in every

instance by the imposition of mandatory penal fines ranging from $2,500 to $4,000 (the PII

Penal Fines) as is otherwise set forth in California Streets & Highways Code section

31490(q)(1)-(2), in that, inter alia, CUSA, acting in its capacity as the transportation agency that

operated an electronic toll collection system for OCTA and RCTC with respect to the 91 Express

Lanes, knowingly provided the Protected PII to the United States Postal Service in order to

market subscriptions to the 91 Express Lanes to the Class (as that term is defined, infra).

51. California Streets & Highways Code section 31490(a) forbids Defendants from

providing the Protected PII to, inter alia, the United States Postal Service unless such provision

of Protected PII is authorized by a specific subdivision of California Streets & Highways Code

section 31490.

52. The only specific subdivision of California Streets & Highways Code section

31490 which in any manner contemplates the provision of Protected PII to the United States

Postal Service by transportation agencies such as Defendants wherein the Protected PII of a

nonsubscriber of an electronic toll collection system may be used, inter alia, in order to market

toll related products and services, is the second sentence of California Streets & Highways Code

section 31490(k).

53. That second sentence of subsection k only authorizes “advertising [to

nonsubscribers] of toll-related products or services contained in a notice of toll evasion issued

pursuant to Section 23302 of the California Vehicle Code” (the Subsection k Authorization)

(emphasis added).




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54. The Subsection k Authorization does not apply here for the following reasons,

among others:

a. At no time during the Class Period (as that term is defined, infra) has there

ever been any California criminal statute, including but not limited to California Vehicle

Code section 23302, which forbade any motorist with valid vehicle license plates properly

attached to their vehicles from lawfully driving any toll road in the State of California

which, like the 91 Express Lanes, permitted pay-by-plate toll payment.

b. Rather, at all times during the Class Period (as that term is defined, infra) it

has always been the case that any motorist’s conduct in merely driving a toll road which

permits pay-by-plate toll payment with valid vehicle license plates properly attached to that

motorist’s vehicle but otherwise without that motorist also having a valid FasTrak®

account—which latter offense is all that the Class (as that term is defined, infra) has ever

been accused of having done wrong by Defendants at any time during the Class Period (as

that term is defined, infra)—is a civil, not a criminal offense.

c. Thus, and again as a matter of law, the False 23302 Toll Evasion Notices

were never properly “issued pursuant to Section 23302 of the California Vehicle Code”

because the False Notices were directly contrary to the mandate of the 23302.5

OCTA/RCTC Ordinances, which 23302.5 OCTA/RCTC Ordinances had, consistent with

principles of state law preemption respecting criminal law, been passed by the boards of

both OCTA and RCTC in the exercise of those boards’ respective broad legislative

discretion to make the civil (and not penal) California Vehicle Code section 23302.5 the

sole and only provision of the California Vehicle Code that CUSA had any right to charge

motorists with violating by virtue of such motorists driving the 91 Express Lanes without

a valid FasTrak® account during the Class Period (as that term is defined, infra).

d. Treating California Vehicle Code section 23302 and California Vehicle

Code section 23302.5 as being in any manner equivalent statutes for purposes of construing

the extent of the Subsection k Authorization would ignore the plain meaning of the




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Subsection k Authorization in violation of well-established rules of statutory construction.

See, e.g., San Diego Union v. City Council, 146 Cal. App.3d 947, 954 (1983) (citing 58

Cal.Jur.3d, Statutes, § 116, p. 505) for the twin propositions that (i) express exceptions to

any general statutory rule (here the general statutory rule being that the Protected PII should

never be provided to third parties by transportation agencies such as Defendants under any

circumstances) should always be strictly and narrowly construed; and (ii) that such express

exceptions should never be extended to include things other than those which were clearly

contemplated by the actual language of such express exceptions (here that the inapplicable

criminal California Vehicle Code section 23302 is not at all the same thing as the applicable

civil California Vehicle Code section 23302.5).

e. Treating California Vehicle Code section 23302 and California Vehicle

Code section 23302.5 as being in any manner equivalent statutes for purposes of construing

the extent of the Subsection k Authorization would also violate strong public policy by

arbitrarily denying the Class (as that term is defined, infra) the full protection of their

Protected PII by rewarding Defendants for their knowing use of the False Notices, despite

the fact that those False Notices constituted, at a minimum, a multiple series of knowingly

misleading statements made all during the Class Period (as that term is defined, infra).

f. Defendants are equitably estopped from claiming the benefit of the Section

k Authorization due to the fact that the False Notices constituted, at a minimum, a multiple

series of knowingly false statements made all during the Class Period (as that term is

defined, infra).

Class Allegations

55. The Class Period is the 380 day period between October 15, 2017 and October 31,

2018.

56. California Streets & Highways Code section 19 reads, in full: “‘Person’ means

any person, firm, partnership, association, corporation, organization, limited liability company,

or business trust.”




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57. Consistent with the definition of person contained in California Streets &

Highways Code section 19, the Class is defined as follows: “All natural persons, corporations,

partnerships, limited liability companies and entities of other kinds and types (collectively

“Persons”) who were nonsubscribers to the 91 Express Lanes and whose Protected PII was used

by the Defendants or any of them to send such Persons any of the False Notices via the United

States Post Office during the Class Period.”

58. Members of the Class are hereafter sometimes collectively referred to as the Class

Members.

59. The Nonsubscribers are members of the Class.

60. The identities of the Class Members can be readily ascertained from Defendants’

business records.

61. Questions of law and fact common to the Class predominate over questions

affecting only its separate the Class Members, including, inter alia:

a. Whether their continuous use of the False Notices during the Class period

subjected Defendants to the PII Penal Fines under California Streets & Highways Code

section 31490(q)(1)-(2) due to Defendants’ corresponding violations of California Streets

& Highways Code section 31490(a) due to the inapplicability of the Subsection k

Authorization to the facts of this case;

b. Whether Defendants may rely on the Subsection k Authorization to avoid

being held liable to the Class for the PII Penal Fines.

62. The claims of the Nonsubscribers are typical of the claims of the Class.

63. Treating this dispute as a class action is a superior method of adjudication in that

the Nonsubscribers are informed and believe that approximately fifty thousand (50,000) trips a

day were made on the 91 Express Lanes during the Class Period resulting in a minimum of five

hundred (500) False Notices being sent out to the Class on each day of the Class Period making

the minimum number of False Notices sent to the Class during the Class Period one hundred

ninety thousand (190,000 [380x500=190000]) False Notices sent during the Class Period.




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64. The Nonsubscribers are informed and believe, and on that basis allege, that there

are not less than one hundred thousand (100,000) Class Members (many of whom received

multiple False Notices during the Class Period) who are collectively owed not less than two

hundred and fifty million dollars ($250,000,000 [190000x2500=250000000]) by Defendants.

65. The Nonsubscribers are informed and believe, and on that basis allege, that not

more than sixty-six and two thirds percent (66 2/3%) of the not less than one hundred thousand

(100,000) Class Members are California citizens.

66. The average amount owed by Defendants to a typical Class Member is not less

than twenty five hundred dollars ($2,500), which is a small sum standing alone but a large sum

in the aggregate.

67. It would be impractical for most of the Class Members to individually address

Defendants’ wrongdoings.

68. There should be no significant difficulties in managing this case as a class action.

69. The Nonsubscribers can and will fairly and adequately represent the interests of

the Class.

70. A class action would serve the best interests of the Class.

71. The Nonsubscribers have retained competent and experienced counsel, all of

whom will vigorously represent the interests of the Class.

Sole Claim for Relief

(Violation of the California Streets & Highways Code by Defendants)

72. The Nonsubscribers reallege ¶¶ 1-71.

73. Defendants’ conduct as described, supra, makes Defendants jointly and severally

liable to the Class Members for the PII Penal Fines in the total sum of not less than two hundred

and fifty million dollars ($250,000,000) and according to proof at trial.

WHEREFORE, the Nonsubscribers pray judgment as set forth below:

1. That the Class described herein be certified;




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2. That the Nonsubscribers be appointed as the class representatives and that the

Nonsubscribers’ counsel be appointed counsel for the Class (the Class Counsel);

3. That the Court order that Defendants pay the PII Penal Fines to the Class in the

total sum of not less than two hundred and fifty million dollars ($250,000,000) and according to

proof at trial.

4. For an award of attorney’s fees and costs to the Class Counsel on either or both a

common fund or statutory basis;

5. For such other and further relief as to the Court may seem just.

Dated: May 28, 2019 THE WALSH FIRM, PC REALLAW PC MCGRANE PC By: /s/ William McGrane

William McGrane Attorneys for Plaintiffs Mathew Skogebo, an individual person, and Sanket Vinod Thakur, an individual person, on behalf of themselves and all other persons and entities similarly situated



Mathew Skogebo, et. al. v. Cofiroute USA, LLC, et. al., Case No. 8:19-CV-00739-AG-JDE

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DEMAND FOR JURY TRIAL

Plaintiffs hereby reiterate their earlier demand for a trial by jury of all issues so triable

pursuant to Rule 38 of the Federal Rules of Civil Procedure.

Dated: May 28, 2019 THE WALSH FIRM, PC REALLAW PC MCGRANE PC By: /s/ William McGrane

William McGrane Attorneys for Plaintiffs Mathew Skogebo, an individual person, and Sanket Vinod Thakur, an individual person, on behalf of themselves and all other persons and entities similarly situated


EXHIBIT 1


Complaint for Violation of the Unfair Competition Law

Daniel Chavez v. Cofiroute USA, LLC

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WILLIAM MCGRANE [057761] MATTHEW SEPUYA [287947] MCGRANE PC Four Embarcadero Center, 14th Floor San Francisco, CA 94111 Telephone: (415) 292-4807 [email protected] [email protected]

Additional firms listed on the following page Attorneys for Plaintiff Daniel Chavez, an individual person, on behalf of himself and all others similarly situated

SUPERIOR COURT

IN AND FOR THE COUNTY OF ORANGE

STATE OF CALIFORNIA

DANIEL CHAVEZ, an individual person, on behalf of himself and all others similarly situated,

Plaintiff, v.

COFIROUTE USA, LLC, a Delaware limited liability company,

Defendant.

Case No. CLASS ACTION COMPLAINT FOR VIOLATION OF THE UNFAIR COMPETITION LAW

Assigned:

Dept: CX105




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MICHAEL HASSEN [124823] REALLAW APC 1981 N. Broadway, Suite 280 Walnut Creek, CA 94596 Telephone: (925) 359-7500 [email protected]

MICHAEL WALSH [155401] WALSH & WALSH PC 420 Exchange, Suite 270 Irvine, CA 92602 Telephone: (714) 544-6609 [email protected]


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Comes now Plaintiff Daniel Chavez (Motorist) and alleges as follows:

Parties

1. Motorist is an individual person who is a United States citizen presently residing

full-time in the Dominican Republic while serving in the Peace Corps. Motorist’s domicile

within the United States—to which domicile he fully intends to return following completion of

his tour of duty in the Peace Corps—is Orange County, California, where Motorist was a long-

time resident immediately prior to his having joined the Peace Corps and been assigned to

overseas duty.

2. Defendant Cofiroute USA, LLC (CUSA) is a Delaware limited liability company

which first registered as a foreign limited liability company qualified to do intra-state business in

California on November 21, 2002. CUSA has its principle place of business in Orange County,

California.

Jurisdiction and Venue

3. This Court has jurisdiction over this case in that the violations of the Unfair

Competition Law (Cal. B. & P. Code §§ 17200 et. seq. [UCL]) alleged herein all occurred in

California.

4. Venue is appropriate in Orange County, California, in that CUSA’s principle

place of business is located in Orange County.

Charging Allegations

5. Between at least October 24, 2005 and March 20, 2017 (the Relevant Time

Period), CUSA has acted as the Issuing Agency (as that term is defined in California Vehicle

Code section 40250(e)(1)) for the 91 Express Lanes (OCTA’s Issuing Agency), all pursuant to a

written contract dated October 24, 2005, between CUSA on the one hand and the Orange County

Transportation Authority (OCTA) on the other hand.

6. On January 8, 2016, acting in its capacity as OCTA’s Issuing Agency, CUSA sent

Motorist a Notice of Toll Evasion (NTE). A true copy of this NTE is attached hereto as Exhibit

1.


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7. On its face the NTE constituted an unauthorized act by CUSA in that the NTE

disregarded the requirements of OCTA’s Ordinance No. 2010-1 (OCTA Toll Ordinance) at

OCTA Toll Ordinance §§ 2(d) and 3(c)(2) by virtue of the NTE’s failure to correctly identify the

section of the Vehicle Code Motorist allegedly violated as necessarily being entirely civil in

nature, thereby ignoring the OCTA Toll Ordinance’s requirement that any Motorist assessed a

“Penalty for a Violation” as that term is used in the OCTA Toll Ordinance had to be deemed

charged under the OCTA Toll Ordinance with nothing other than a violation of Vehicle Code

section 23302.5(a), which is an entirely civil statute and not criminal statute.

8. Instead the NTE expressly charged Motorist with violating Vehicle Code section

23302(b), which charges a Motorist with a criminal infraction as well as a civil violation, and

which exposure to criminal prosecution was explicitly noted by the NTE despite allegations of

criminal infractions against Motorists having been expressly forbidden by the OCTA Toll

Ordinance.

9. On February 9, 2016, again acting in its capacity as OCTA’s Issuing Agency,

CUSA sent Motorist a Notice of Delinquent Toll Evasion (NDTE). A true copy of this NDTE is

attached hereto as Exhibit 2.

10. On its face the NDTE also constituted an unauthorized act by CUSA in that the

NDTE disregarded the requirements of the OCTA Toll Ordinance at §§ 2(d) and 3(c)(2) in

exactly the same manner that the NTE did. The NTE and the NDTE are hereafter collectively

referred to as the Unauthorized Toll Evasion Notices.

11. The Unauthorized Toll Evasion Notices assessed penalties of up to $100 for

Motorist’s first violation of Vehicle Code section 23302(b) within any 12-month period;

penalties of $150 for Motorist’s second violation of Vehicle Code section 23302(b) within said

12-month period and $200 each for any additional violations of Vehicle Code section 23302(b)

within said 12-month period.


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12. After April 9, 2016, CUSA directed its attorneys at the law firm of Linebarger

Goggan Blair and Sampson, LLP (LLP) to send Motorist numerous demand letters (the LLP

Collection Demands) seeking payment of, inter alia, the $100 in penalties which the

Unauthorized Toll Evasion Notices had earlier and improperly demanded Motorist pay. Copies

of the LLP Collection Demands are attached as Group Exhibit 3.

13. In May 2017, believing that the $100 penalty which the Unauthorized Toll

Evasion Notices and the LLP Collection Demands had demanded from him was legitimately due

and payable, Motorist paid, inter alia, the $100 penalty to LLP for CUSA’s account.

14. Motorist is informed and believes and on that basis alleges that some or all of his

$100 penalty payment to LLP went from LLP to CUSA to OCTA.

15. Motorist is further informed and believes and on that basis alleges CUSA

benefitted from OCTA’s receipt of some or all of Motorist’s $100 penalty payment on account of

CUSA’s thereafter continuing to receive tens of millions of dollars from OCTA in consideration,

of its acting as, inter alia, OCTA’s Issuing Agent.

16. As a direct, natural and proximate result of his and their receipt of CUSA’s

Unauthorized Toll Evasion Notices, both Motorist and Class Members (as that term is defined,

infra) have suffered injury in fact by way of lost money or property, to wit, the money they paid

CUSA and/or LLP in response to (and in reliance on) CUSA’s Unauthorized Toll Evasion

Notices.

Class Allegations

17. Motorist brings this action on behalf of himself and all other persons (i) who have

driven the 91 Express Lanes during the Class Period with valid plates attached to their vehicles

(as that term is defined, infra); (ii) who have thereafter been sent Unauthorized Toll Evasion

Notices by CUSA; and (iii) who thereafter paid money to either CUSA or LLP on account of the

Unauthorized Toll Evasion Notices’ claim that they were obligated to pay money on account of

their having previously violated Vehicle Code section 22302(b), all despite the clear mandate of

the OCTA Toll Ordinance at §§ 2(d) and 3(c)(2) to the effect that such persons should never be




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charged with any even potentially criminal infraction, but only based on a non-criminal civil

violation of Vehicle Code section 23302.5 (Class Members).

25. The Class is broken down as follows:

a. All the Class Members who were sent Unauthorized Toll Evasion Notices

by CUSA and who then paid any money to CUSA or LLP within four years last past (the

Within Limitations Class Members). Motorist is a member of this sub-class.

b. All the Class Members who were first sent Unauthorized Toll Evasion

Notices at any time within the Class Period (as same is defined, infra) and in response

paid any money to CUSA and or LLP more than four years last past (the Discovery Class

Members). Motorist is not a member of this sub-class.

c. The Within Limitations Class Members and the Discovery Class Members

are hereafter sometimes collectively referred to herein as the Class.

26. The Class Period is co-extensive with the Relevant Time Period.

27. The identities of the persons and entities which comprise the Class can be readily

ascertained from CUSA’s business records.

28. Questions of law and fact common to the Class predominate over questions

affecting only its individual members, including, inter alia:

a. Whether CUSA’s conduct in sending the Unauthorized Toll Evasion

Notices to the Class violated the UCL by virtue of Class Members’ lawful borrowing of

the OCTA Toll Ordinance at §§ 2(d) and 3(c)(2), which sections have always forbidden

CUSA from ever charging members of the Class with any even potentially criminal

infraction of the Vehicle Code and instead have only ever permitted CUSA to charge

Class Members with a civil violation of Vehicle Code section 23302.5.

b. Whether Class Members suffered injury in fact by virtue of their loss of

money on account of CUSA’s conduct in sending them the Unauthorized Toll Evasion

Notices because, inter alia, despite CUSA’s claims that Class Members evaded or

attempted to evade the payment of tolls to CUSA by having driven the 91 Express Lanes

without FasTrak® accounts tied to their valid plates, the following is true: 4


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• There is no requirement that a Class Member have any FasTrak® accounts

tied to their valid plates stated anywhere in either the OCTA Toll

Ordinance and/or in the Vehicle Code.

• The only relevant sections of the Vehicle Code which even arguably

address CUSA’s claims that Class Members who drive the 91 Express

Lanes without FasTrak® accounts tied to their valid plates are somehow

evading or attempting to evade the payment of tolls are Vehicle Code

sections 23301.8 and 23302(d)-(e).

• Both Vehicle Code sections 23301.8 and 23302(d)-(e) expressly recognize

that Class Members cannot and should not be deemed to have evaded or

attempted to evade the payment of tolls to CUSA given CUSA’s

indisputable use of pay by plate technology all during the Relevant Time

Period in connection with CUSA’s voluntarily accepting tolls from certain

sub-groups of Motorists driving the 91 Express Lanes.

• Vehicle Code section 23301.8 bars CUSA from contending any Class

Members ever evaded or attempted to evade paying CUSA tolls during the

Relevant Time Period because CUSA failed to first create a grace period

and then publicize, as practicable, the fact that CUSA has adopted such a

grace period for the benefit of Class Members who otherwise justifiably

relied on CUSA’s use of pay by plate to lawfully effectuate payment of

such Class Members’ CUSA tolls despite their driving the 91 Express

Lanes without their simultaneously possessing either a transponder or a

FasTrak® Account tied to their valid plates.

c. Whether Class Members suffered injury in fact by loss of money as a

result of CUSA sending them the Unauthorized Toll Evasion Notices because, inter alia,

those Unauthorized Toll Evasion Notices fraudulently misrepresented the nature and

extent of Class Members’ potential liability to CUSA should Class Members not pay


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CUSA “Penalties for Violation” of the OCTA Toll Ordinance based on CUSA’s

unauthorized, false claims of criminal behavior on the part of Class Members.

d. Whether Class Members suffered injury in fact by loss of money by virtue

of CUSA’s sending them the Unauthorized Toll Evasion Notices because—even if

CUSA’s conduct in sending the Unauthorized Toll Evasion Notices was somehow neither

unlawful nor fraudulent—such conduct still violated the UCL because it was unfair for

CUSA to make false claims of criminal behavior on part of Class Members when CUSA

had been totally forbidden from doing so by the OCTA Toll Ordinance.

e. Whether and, if so, when the Discovery Class Members were ever put on

inquiry notice CUSA had violated the UCL by virtue of CUSA’s sending them the

Unauthorized Toll Evasion Notices

29. The claims of Motorist are typical of the claims of the Class.

30. Treating this dispute as a class action is a superior method of adjudication since

the joinder of all absent Class Members would be impractical.

31. Additionally, the amount of each restitutionary payment would be modest on an

individual basis, although significant in the aggregate.

32. It would be impractical for most of the Class Members individually to address

CUSA’s wrongdoings.

33. There should be no significant difficulties in managing this case as a class action.

34. Motorist can and will fairly and adequately represent the interests of the Class.

35. A class action would serve the best interests of the Class.

36. Motorist is informed and believes and on that basis alleges that substantially more

than two-thirds of the Class Members are California citizens.

37. Motorist has retained competent and experienced counsel, all of whom will

vigorously represent the interests of the Class.


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Sole Cause of Action (Violation of Unfair Competition Law [B. &. P. Code §§ 17200 et. seq. (UCL) by CUSA)

38. Motorist realleges ¶¶ 1-37.

39. CUSA’s misconduct as described, supra, makes CUSA liable under the UCL in

that such misconduct, and each and every aspect thereof, disjunctively constitutes the following:

(i) unlawful business practices; (ii) fraudulent business practices; and (iii) unfair business

practices.

40. CUSA has obtained monies from Motorist and the Class in violation of the UCL,

which monies are subject to restitution to the Class under the UCL, all in a sum of not less than

five million ($5,000,000) dollars and according to proof at trial.

WHEREFORE Motorist prays judgment as set forth below:

1. That the Class described herein be certified;

2. That Motorist be appointed the class representative and Motorist’s counsel be

appointed counsel for the Class (Class Counsel);

3. That the Court order that CUSA make restitution of all monies obtained from the

Class by either CUSA or LLP in a sum not less than five million ($5,000,000) dollars.

4. For an award of attorney’s fees and costs to Class Counsel on either a common

fund or statutory basis.

5. For such other and further relief as the Court may deem just and proper.

Dated: July 13, 2018 WALSH & WALSH PC REALLAW APC MCGRANE PC

By: William McGrane

Attorneys for Motorist Daniel Chavez, an individual person, on behalf of himself and all others similarly situated


EXHIBIT 2


EXHIBIT 3


GROUP EXHIBIT 4


GROUP EXHIBIT 5


1355855.1

Notice of Toll Evasion Violation Notice Mailing Date:

NTEV1103C1342674V575084 Registered Owner Name Address 1 Address 2 Address 3 City,

Our records indicate that on the date, time and location listed above, the vehicle identified was traveling on the 91 Express Lanes without payment of required toll(s) in violation of California Vehicle Code Section 23302.5. This violation is being enforced as a civil penalty pursuant to California Vehicle Code Sections 23302.5 and 40250, et. seq. Please be advised that all vehicles must have a FasTrak® transponder registered to an account with a balance sufficient to pay the toll amount. Failure to pay the amount due or properly respond before the due date will result in additional penalties, fees and collection action as provided by law.

RESOLVE BEFORE THE FIRST DUE DATE TO AVOID ADDITIONAL PENALTIES

Pay the amount due. Payments can be made online at www.91expresslanes.com or by mail to the 91 Express Lanes, P.O. Box 68039, Anaheim, California 92817.

91 Express Lanes account holders with a valid account at the time of the violation, add the vehicle to your account. Complete and return the certificate below or call the customer service center at (800) 600-9191 to update your account.

Account holders with a valid account with another California Toll Agency, contact your account holding agency to add the vehicle to your account with a date prior to the violation date. If the account was not valid at the time of the violation, please call us at (800) 600-9191.

Complete an Affidavit of Non-Liability or Request an Administrative Investigation. Complete and return Section A (Affidavit of Non-Liability) or Section B (Request for Administrative Investigation) located on the back of this form within 30 days from the Notice Mailing Date.

Description Due After

Toll Penalty Total Due Due Date *

*If not paid by this due date, the penalty will escalate up to $100 for the first violation, $150 for the second violation, and up to $200 for each additional violation within one year. You may also be responsible for court costs if these penalties are collected through the courts. _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _

PAYMENT CERTIFICATE

Violation #: Vehicle License:

Total Due Before: MM/DD/YY Year / Model:

Pay online at www.91expresslanes.com Please charge $___________ to my credit card below: (Check One) American Express Visa MasterCard Discover My card was lost, stolen, expired, or cancelled. Please update as follows: Add as my primary default card Add as an additional card

Credit Card Number: Expiration (Month/Year): /

I have a valid 91 Express Lanes account. Add this vehicle to my account. Account Holder’s signature and Account Number are required. If your account was not in good standing, the toll will not be eligible for payment from your account.

Printed Name of Account Holder Account Holder Signature Required Account Number Date

Violation Number Vehicle License PlateYear and MakeEntry Date and TimeToll Point Date and TimeLocation

November 01 2018

NTEVC7818862V257109540

10/29/2018 5:23:31 PM91E Co. Line-McKinley L#3

12/17/2018

$4.05 $4.05$25.00 $55.00

$29.05 $59.0512/01/2018 01/30/2019*

12/01/2018$29.05

----------------------------------------------------------------------------------------------------------------------------------------------------------

Pay online at www.91expresslanes.com

Notice Mailing Date:

5:10:49 PM10/29/2018

(Please correct name and address if necessary)

TORRES ELIGIO

OF FIGUEROA VANIREY

2059 S RENE DR

SANTA ANA CA 92704

795916913198009

7959169.PDF

BREFALSE

NTEV

10/31/2018

58360

2200

7959169

13198009NTEV_58360_11012018_065535

*************AUTO**ALL FOR AADC 923 3 000000505

____


Notice of Delinquent Toll Evasion Violation Notice Mailing Date:

NTEV1103C1342674V575084 Registered Owner Name Address 1 Address 2 AddrCity,

Violation Number Vehicle License Plate Year and Make Entry Date and Time Toll Point Date and Time Location

In a Notice of Toll Evasion Violation letter dated 00/00/0000you were informed that the vehicle identified above was traveling on the 91 Express Lanes without payment of required toll(s) in violation of California Vehicle Code Section 23302.5. This violation is being enforced as a civil penalty pursuant to California Vehicle Codes Sections 23302.5 and 40250, et. seq. Please be advised that all vehicles must have a FasTrak® transponder registered to an account with a balance sufficient to pay the toll amount. Failure to pay the amount due or properly respond before the due date will result in additional penalties, fees and collection action as provided by law.

RESOLVE BEFORE THE FIRST DUE DATE TO AVOID ADDITIONAL PENALTIES

Pay the amount due. Payments can be made online at www.91expresslanes.com or by mail to the 91 Express Lanes, P.O. Box 68039, Anaheim, California 92817.

91 Express Lanes account holders with a valid account at the time of the violation, add the vehicle to your account. Complete and return the certificate below or call the customer service center at (800) 600-9191 to update your account.

Account holders with a valid account with another California Toll Agency, contact your account holding agency to add the vehicle to your account with a date prior to the violation date. If the account was not valid at the time of the violation, please call us at (800) 600-9191.

Complete an Affidavit of Non-Liability or Request an Administrative Investigation. Complete and return Section A (Affidavit of Non-Liability) or Section B (Request for Administrative Investigation) located on the back of this form within 60 days from the Notice Mailing Date.

Description Due After After

Toll

Penalty

Total Due

Due Date * *If not paid by this due date, the penalty will escalate up to $100 for the first violation, $150 for the second violation, and up to $200 for each additional violation within one year. You may also be responsible for court costs if these penalties are collected through the courts.

PAYMENT CERTIFICATE Violation #: Vehicle License:

Total Due Before: MM/DD/YY Total Due After:

MM/DD/YY

(Make check or money order payable to 91 Express Lanes. DO NOT MAIL CASH.)

Pay online at www.91expresslanes.com. Please charge $___________ to my credit card below: (Check One) American Express Visa MasterCard Discover My card was lost, stolen, expired, or cancelled. Please update as follows: Add as my primary default card Add as an additional card

Credit Card Number: Expiration (Month/Year): /

I have a valid 91 Express Lanes account. Add this vehicle to my account. Account Holder’s signature and Account Number are required. If your

account was not in good standing, the toll will not be eligible for payment from your account. Printed Name of Account Holder Account Holder Signature Required Account Number Date

a e Address 2 s City, State Zip1+4 (Please correct name and address if necessary)

NDTEVC7638373V250671364

09/04/2018

91E 55-Co. Line L#2

$3.85 $3.85 $3.85$25.00 $55.00 $80.00$28.85 $58.85 $83.85

11/16/2018 12/31/2018*

$28.85

J N

I

November 01 2018

11/16/2018 12/31/2018

09/11/2018,

11/16/2018 11/16/2018$58.85

- - -----------------------------------------------------------------------------------------------------------------------------

6:08:49 PM09/04/2018 6:14:19 PM

Pay online at www.91expresslanes.com

GRONEMEYER JENS

1542 ALBA CT

RIVERSIDE CA 92507

795654613445099

7956546.PDF

BREFALSE

NDTEV

10/31/2018

58359

46

7956546

13445099NDTEV_58359_11012018_125313

*************AUTO**ALL FOR AADC 923 5 000001153

____


1 Certificate of Service

Mathew Skogebo, et. al. v. Cofiroute USA, LLC, et. al., Case No. 8:19-CV-00739-AG- JDEx

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CERTIFICATE OF SERVICE

I hereby certify that I electronically filed the following documents with the Clerk of the

Court for the United States District Court for the Central District of California by using the

CM/ECF system on May 28, 2019.

FIRST AMENDED COMPLAINT FOR PENAL FINES

I certify that all participants in the case are registered CM/ECF users and that service will

be accomplished by the CM/ECF system.

I declare under penalty of perjury that the forgoing is true and correct, and that this

declaration was executed on May 28, 2019, at San Francisco, California.

Dated: May 28, 2019 Winn Yan


1 william mcgrane [057761]...2019/05/28 · first amended complaint for penal fines mathew skogebo,...

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