Motion_to_compelMotionCal. Super. - 6th Dist.April 26, 201718 19 20 21 22 23 24 25 26 27 28 17CV309154 Santa Clara - Civil Quynh Chen (SBN 292889) Amir V. Adibi (SBN 290571) 101 Broadway, Ste. 306 Oakland, CA 94607 Telephone: (510) 764-8880 Fax: (510) 788-6859 Email: q@qchenlaw.com Attorneys for Plaintiff Chang Liu Electronically Filed by Superior Court of CA, County of Santa Clara, on 3/26/2018 1:51 PM Reviewed By: R. Tien Case #17CV309154 Envelope: 1348826 SUPERIOR COURT OF CALIFORNIA CITY OF SAN JOSE COUNTY OF SANTA CLARA LIMITED JURISDICTION Chang Liu, Plaintiff, VS. Patrick Birmingham, et al., Defendants. N r ” N a r ’ N r ? N r ’ a r ? N t N w a N a n t ? N a N a N w ” N a N a N a N e Case No.: 17CV309154 DISCOVERY PLAINTIFF NOTICE OF MOTION AND MOTION (1) TO COMPEL PRODUCTION OF DOCUMENTS, AND (2) FOR SANCTIONS; MEMORANDUM OF POINTS AND AUTHORITIES Date: April 26, 2018 Time: 9AM Dept.: 9 Judge: Honorable Mary E. Arand Action Filed: April 26, 2017 Trial Date: None Set TO ALL PARTIES AND THEIR COUNSEL OF RECORD: YOU ARE HEREBY NOTIFIED THAT on April 26, 2018, at 9:00 am., in Department 9 of the Superior Court of the State of California, County of Santa Clara, 191 N. First Street, San Jose, CA 95113, plaintiff Chang Liu (“Plaintiff”) will move the Court for an order compelling defendant Patrick Birmingham (“Responding Defendant”) to produce documents requested in Plaintiff’s request for production of documents, set one; as set forth in NOTICE OF MOTION AND MOTION TO COMPEL Lin v. Birmingham, et al. —- 17CV309154 Tien 11 12 13 14 1.5 16 17 18 19 20 21 22 23 24 25 26 27 28 the Separate Statement of Request for Production and Responses in Dispute filed concurrently with this motion. Plaintiff will further move the Court for an order that Responding Defendant pay the sum of $2,500.00 as reasonable costs and attorney fees incurred by Plaintiff for these proceedings. This motion is made on the ground that Responding Defendant failed to provide documents requested in Plaintiff’s request for production, set one. Each of Plaintiff's discovery requests is entirely relevant to the subject matter of the action, and Respondent's failure to produce is without justification. The motion will be based upon this Notice, the Memorandum of Points and Authorities in support thereof, the Declaration of Quynh Chen, the Separate Statement of Requests for Production, Responses in Dispute, Exhibit List, the records and files in this action, and such other matter as the Court may admit. DATED: March 22, 2018 LA ; a / &L / ~~ 7 = Quynh Chen Attorney for Plaintiff Chang Liu REQUEST FOR PRODUCTION OF DOCUMENTS 2 NOTICE OF MOTION AND MOTION TO COMPEL Liu v. Birmingham, et al. —- 17CV309154 MEMORANDUM OF POINTS AND AUTHORITIES L INTRODUCTION This is an action for fraud in contracts/intentional misrepresentation, negligent misrepresentation, breach of contract, breach of fiduciary duty, accounting, battery and assault. Complaint §]9-12. Despite both Defendants having gainful employment (Respondents’ responses to Form Interrogatory, No. 2.6), both defendants have opted to pay for flights back and forth from southern California rather than retain an attorney and also make a dubious request for court fees waiver. Dec. of Chen §13. Due to Defendant being pro per, Plaintiffs attorney have been extremely generous in granted extensions to discovery. Dec. of Chen {{10- 37. The present motion to compel is based on the lack of production after a two-and-half-month extension, defendants reassurance to the court on the 1/16/18 CMC that numerous documents will be produced immediately, and the current defendants’ statement that no more than 16 documents will be produced. Id. A. Allegations in Plaintiffs Complaint and Responding Defendant’s Responses. This 1s an action for fraud in contracts among other related claims. Complaint 9-12. Plaintiff alleges that Defendant misappropriated her money with no intent to honor the signed written contract. Defendants answered the Complaint and admits to taking Plaintiff’s $45,000 Answer, 2. Defendant admits that he had both personal debt from his “recent” wedding with his wife and co-defendant Sunshine, business debt and a habit of “drinking heavily and abusing controlled substance.” Answer, {{2-3. Defendant implies that Plaintiffs money may have been inappropriately “invested” into his wedding credit card bills. Answer, 2-3. He also alleges that 3 NOTICE OF MOTION AND MOTION TO COMPEL Liu v. Birmingham, et al. — 17CV309154 10 11 12 13 14 15 16 17 18 19 20 Zl 22 23 24 25 26 27 28 the money was transferred into his account at Bank of America. Answer J4. Plaintiff alleges that a car was purchased for the business and Defendant admits that he drove the car for his business but that the “30,000 miles is inaccurately represented.” Answer, §6. Defendant alleges that Plaintiff was paid via Business credit card usage. Answer 7. Defendant admits that he did not conduct the quarterly valuations and payments as required by the signed written contract. Answer 7. Defendant admits that the business had an “operable cash flow.” Answer 7. Defendant admits that he was in continuous contact with his wife Sunshine throughout 2015 and 2016. Answer §{12-14. Defendant admits that he went on vacation with his wife Sunshine around late October to mid November 2016 to “Hawaii, Las Vegas, and Philippines”. Answer 15. It is unclear as to who paid for the expenses of a month-long vacation for both co- defendants. Defendant admits to closing the business and pocketing the proceeds from the sales of the business goods in violation of the signed written agreement. Answer §{ 17-18. Defendant admits that he found a replacement tenant to cover the expenses of paying for the storefront. Answer 17. B. Plaintiff’s Discovery and Meet and Confer Efforts On 9/29/2017, Plaintiff served Defendant Patrick Birmingham Form Interrogatories, set one. Dec. of Chen 2. On 11/26/2017, Plaintiff served Defendant Patrick Birmingham Special Interrogatories and request for production of documents and things. Dec. of Chen 4. On 3/1/2018, Plaintiff served Defendant Patrick Birmingham request for admission, set one, and request for production of document and things, set two. Dec. of Chen 5. 4 NOTICE OF MOTION AND MOTION TO COMPEL Liu v. Birmingham, et al. - 17CV309154 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 For the 11/26/2017 Special Interrogatories and request for production of documents and things, Responding Defendant failed to produce the majority of the documents requested. Dec. of] Chen 8. The 11/26/2017 request for production only had two simple requests: “Request 1. Any and all non-privileged DOCUMENTS identified in each of YOUR responses to each Special Interrogatories, Set One Request 2. Any and all non-privileged DOCUMENTS evidencing any and all sources of income for YOU.” Exh. C. The documents identified, but not provided in Responding Defendant’s response to the Special Interrogatories were: business tax records, business license, Bureau of Automotive Repair license, Business Chase Account statements, alcohol breathalyzer install and monitoring program license under Guardian Interlock, his version of the partnership agreement, the fictitious filing of the business, all transaction records of the Chase account to evidence Defendants payment in and out of business, 1099 forms for contractors of the business, business checkbooks and business documents for the business, Daniel Be’s monthly payment to the business, Plaintiff’s handwriting on the “filtered Cash Invoices” in the form of a Post-It note she wrote on, checking account, business line of credit under Responding Defendant’s name that shows expenses used for business, Plaintiff personally and Responding Defendant personally. Exh. G. On 12/26/2017, Responding Defendant produced only one document in response to the request for production. Dec. of Chen 8. He only produced a one-page, handwritten, 1099-Misc from his company SD Auto Salon to himself. Exh. G. To his credit, he emailed a reassurance that he has all the stated documents but that he will need to return to San Jose to retrieve them, as he is located in San Diego. Dec. of Chen 13. 5 NOTICE OF MOTION AND MOTION TO COMPEL Liu v. Birmingham, et al. — 17CV309154 20 21 22 2.3 24 25 26 27 28 On 12/27/17, Plaintiff’s attorney granted a one-time two-week extension to produce the documents on January 9, 2018, SPM. Dec. of Chen 14. On January 9, 2018, Responding Defendant failed to produce any documents by this date. Dec. of Chen 16. But on the same day, Responding Defendant and Plaintiff attorney talked on the phone where Responding Defendant gave reassurances of providing documents in a day or two. Dec. of Chen §17. An extension of two days was granted but contingent upon a call on January 12, 2018 between the parties to confirm receipt of documents. Id. Defendant did not answer this call and instead wrote an email canceling this meeting due to “work”. Dec. of Chen 18. Responding Defendant did not follow up after this. Id. On January 16, 2018, all parties appeared at the CMC conference. Plaintiff's attorney expressed to Honorable Judge Mary E. Arand of the difficulty of obtaining documents from Responding Defendant Patrick Birmingham. Dec. of Chen 19. Responding Defendant Patrick Birmingham and co-defendant both represented to the Court that due to the large amount of documents that will be produced that they have a hard time producing them via email. Dec. of Chen 920. Judge Arand admonished Defendants to produce the documents immediately and also to produce clear copies through mail as email will not suffice. Dec. of Chen J21. Both defendants then stated that they will be producing all requested documents on the same day. Dec. of Chen §22. On January 17, 2018, co-defendant Sunshine Birmingham emailed Plaintiff's attorney stating: “Per our conversation at the courthouse yesterday, we are working to provide you the documents. However, due to the amount of documents that need to be scanned it will take us at the minimum two weeks to complete. If this doesn’t suffice, you can file a motion to compel.” Dec. of Chen 23. Co-defendant Sunshine Birmingham then requested February 9 by Spm as 6 NOTICE OF MOTION AND MOTION TO COMPEL Liu v. Birmingham, et al. — 17CV309154 11 12 13 14 15 16 17 18 19 20 21 22 23 24 a 26 27 28 the deadline to produce documents. Dec. of Chen 24. Plaintiff's attorney then granted this date, despite this date being more than three weeks from the CMC hearing day when they said, in front of Judge Arand, that they would produce the requested documents. Dec. of Chen 25. On Feb 9%, 2018, Responding Defendant emailed 16 pages to Plaintiffs attorney. Dec. of Chen 926. These 16 pages appears to be invoices with a post it note on it saying “cash.” Id. The invoice indicating that buyer’s signatures are blank. Id. On Feb. 12, 2018, Plaintiff's attorney reiterated request for bank accounts and specific example of missing items. Dec. of Chen 27. On March 15, 2018, Plaintiff's attorney called and emailed Responding Defendant regarding setting the motion to compel date. Dec. of Chen 28. Responding Defendant returned Plaintiff attorney phone call indicating that there are no more documents to be produced. Dec. of Chen §30. Co-defendant was also on the call and stated that they did not say that they would produce a lot of documents, merely that they had a lot of documents to review but inexplicably does not produce all of these documents. Dec. of Chen §30. Both parties insisted that they have no more to produce and they were tired of the “back and forth.” On the same day, they left a voicemail on Plaintiff’s attorney phone stating that they will provide document but that they are not aware of any more documents requested. Dec. of Chen §32. They later replied with an email stating in a nutshell that they have produced all requested documents but in addition, reasons why there may be documents pending but they will not or cannot produce. Dec. of Chen §33. No claim of privilege was made. In sum, both defendants admit there exist numerous documents that they reviewed but without a claim of privilege or other reason, have decided to not produce said numerous documents. On March 16, 2018, Plaintiff’s attorney requested update on whether Responding Defendant plans to respond to the 3/1/2018 request for admission, set one, and request for 7 NOTICE OF MOTION AND MOTION TO COMPEL Liu v. Birmingham, et al. — 17CV309154 s w ND 10 11 12 13 14 15 16 17 18 %9 20 21 22 23 24 25 26 27 28 production of document and things, set two. Dec. of Chen 34. His response was: “I will review all documents and try my best to reply on time. I cannot guarantee this is as I am self represented and I will need to further consult legal advice.” Dec. of Chen 35. II. RESPONDING DEFENDANT MUST BE COMPELLED TO PRODUCE REQUESTED DOCUMENTS. A. Each Interrogatory and Document Requested Seeks Information Directly Relevant to the Fraud in Contracts alleged in Present Action. A party may obtain discovery about any unprivileged matter that is relevant to the subject matter of the litigation. This includes any information that might “reasonably assist a party in evaluating the case, preparing for trial, or facilitating settlement.” Lipton v. Superior Court, 48 Cal. App. 4% 1599, 1611 (1996). Discovery is permissible relating to any claim or defense made by any party. Code Civ. Proc. §2017.010. Relevant evidence is much more broad than admissible evidence. Any doubts concerning relevancy of evidence should be resolved in favor of permitting discovery. Colonial Life & Accident Ins. Co. v. Superior Court, 31 Cal. 3d 785, 790, 647 P.2d 86 (1982). As shown in detail in Plaintiff’s concurrently —filed Separate Statement of Interrogatories, Request for Production, and Responses in Dispute (“Separate Statement”), Plaintiff’s discovery is properly directed to the issues in the action. Defendants have contended that the money may have been used to pay his personal wedding bills instead of being invested in the business. His defense includes statement that he compensated Plaintiff in other ways. Defendant also allege that there was cash flow during the business. Answer §{]1-17. Plaintiff seeks information regarding these actions of fraud and alleged defense to the breach of contract and the breach of fiduciary duty. This information goes to the heart of a 8 NOTICE OF MOTION AND MOTION TO COMPEL Liu v. Birmingham, et al. — 17CV309154 Ww ON 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 fraudulent transfer of funds, and related misrepresentation of the finances. Responding Defendant’s compliance with discovery will allow the trier of fact to review admissible evidence. V. SANCTIONS MUST BE IMPOSED ON DEFENDANTS Responding Defendants’ deliberate disregard of their discovery obligations must not be allowed to continue and must be sanctioned. The Code of Civil Procedure permits imposition of sanctions “against anyone engaging in conduct that is a misuse of the discovery process.” Code Civ. Proc. §2023.030. “Misuses of the discovery process include, but are not limited to... (d) Failing to respond or to submit to an authorized method of discovery; (e) Making, without substantial justification, an unmeritorious objection to discovery.” Code Civ. Proc. §2023.010. Responding Defendant failed to fully provide documents to Plaintiff’s request for production. It is especially egregious that defendants requested more than 2 months in extensions but ultimately only provided 16 pages of documents. The Code of Civil Procedure requires that monetary sanction be imposed against any party, person, or attorney who unsuccessfully opposes a motion to compel a response to interrogatories or to demands for inspection. Code Civ. Proc. §§ 2030.290(c)(interrogatories); 2030.300(d) (interrogatories); 2031.310(h) (demands for inspection). Responding Defendants cannot possibly show any substantial justification for their failure to provide documents and there is absolutely no justification for Responding Defendant’s statement of providing the document but ultimately not providing them. Responding Defendant and co-defendant Sunshine are using delaying tactics and abusing their status of pro per defendants, literally citing their status as pro per as a reason to not provide discovery within the 9 NOTICE OF MOTION AND MOTION TO COMPEL Liu v. Birmingham, et al. — 17CV309154 11 12 13 14 15 16 17 18 19 20 2.4 24 23 24 25 26 27 28 timeline. Exh. I, pg. 18 (In response to Plaintiff’s attorney inquiry of whether there will be a timely response to 3/1/18 discovery, Patrick responded “I cannot guarantee this is as I am self- represented”). Defendant has the misguided notion that he can skirt the duties of timely response with impunity as pro per. There are no circumstances here that make the imposition of the sanction unjust. Therefore, monetary sanctions of $2750.00, based on the reasonable attorney’s fees and costs Plaintiff incurred, must be imposed. Dated: March 22, 2018 7 2 7 Quynh Chen # Attorney for Plaintiff Chang Liu 10 NOTICE OF MOTION AND MOTION TO COMPEL Liu v. Birmingham, et al. — 17CV309154 S w N D a y 10 | 11 12 13 14 15. 16 17 18 19 20 21 22 23 24 25 26 27 28 - PROOF OF SERVICE I declare that I am a citizen of the United States, over the age of 18 and not a party to this action. My business address is: 101 Broadway, Suite 306, Oakland, CA 94607. On the dats set . forth below, I served the attached documents: 1. PLAINTIFF NOTICE OF MOTION AND MOTION (1) TO COMPEL PRODUCTION OF DOCUMENTS, AND (2) FOR SANCTIONS; MEMORANDUM OF POINTS AND AUTHORITIES; 2. DECLARATION OF QUYNH CHEN ISO PLAINTIFF CHANG LIIU’S NOTICE OF MOTION AND MOTION TO COMPEL PRODUCTION OF DOCUMENTS, AND FOR SANCTIONS | 3. SEPARATE STATEMENT OF REQUESTS FOR PRODUCTION, AND RESPONSES IN DISPUTE by mail by causing a true and correct copy of the above to place in the United States Postal Service by first class mail, at Oakland, CA, in a sealed envelope with sufficient postage prepaid, addressed as follows: Patrick Birmingham and Sunshine Birmingham, 10143 Carefree Drive, Santee, CA 02071. Sxeuked on Hard 2,29 Fin Crlland, cA. AND by electronic service by causing a true and correct copy. of the above to be electronically - served on pbirm39@yahoo.com, sunshineandpatrick@yahoo. com Executed this 23™ day of March 2018 in Oakland, CA. IN Quynh Gen = wo § 1 Proof of Service
