Memorandum Points and AuthoritiesCal. Super. - 6th Dist.February 15, 201910 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Electronically Filed Jeffrey D. Skinner (Bar N0. 239214) by SUPerior court 0f CA, SCHIFF HARDIN LLP County of Santa Clara, 4 Embarcadero Center, Suite 1350 on 9/9/2020 12:54 PM san FranCiSCOa CA 941 11 Reviewed By: S. Alvarez Telephone: (4 1 5) 90 1 -8700 Facsimile: (415) 901-8701 gaselmgflgggfig JSkinner@schiffhardin.com nve Ope' Attorneysfor Defendants Apple Inc. and Purchasing Power LLC SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SANTA CLARA FIRST AMERICAN SPECIALTY Case N0. 19CV343284 INSURANCE COMPANY, MEMORANDUM OF POINTS AND Plaintiff, AUTHORITIES IN SUPPORT OF DEFENDANT APPLE INC.’S MOTION V. FOR REQUESTS FOR ADMISSION TO PLAINTIFF TO BE DEEMED APPLE INC., a California Corporation, ADMITTED, AND FOR SANCTIONS PURCHASING POWER LLC, a Georgia limited liability company, and DOES 1 t0 20, Date: Inclusive Time: 9:00 am. Dept: 21 Defendants. Judge: Hon. Thang N. Barrett Complaint Filed: February 15, 2019 Trial Date: None Set INTRODUCTION Plaintiff First American Specialty Insurance Company (“First American”) filed this lawsuit against Defendants Apple Inc. (“Apple”) and Purchasing Power LLC 0n February 15, 2019. First American alleges that an Apple iPhone caused a residential fire in San Jose in 2016 purportedly resulting in $234,000.00 0f damages. Since filing suit, First American has largely failed t0 prosecute this action at all. Apple served First American with Requests for Admission on April 17, 2020. First American has neither responded t0 these Requests for Admission nor requested an extension 0f time t0 d0 so, despite multiple inquiries from Apple’s counsel about the status 0f those responses. Apple therefore moves this Court for an order pursuant t0 CCP § 2033.280 that the matters addressed in the Requests for Admission be deemed admitted. MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT DEFENDANT APPLE INC.’S MOTION FOR REQUESTS FOR ADMISSION TO PLAINTIFF TO BE DEEMED ADMITTED, AND FOR SANCTIONS 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PROCEDURAL BACKGROUND First American filed this lawsuit 0n February 15, 2019, and filed the operative amended complaint 0n May 24, 2019. (Decl. ofJefi’rey D. Skinner in Supp. ofMot. for Reqs. for Admission t0 Plaintifi’ t0 be Deemed Admitted, and for Sanctions (Sept. 3, 2020) (“Skinner Decl.,”), 1] 2.) Apple was served with process 0n June 24, 2019; this was the first notice t0 Apple 0f the alleged 2016 fire. (Ibid) Apple answered 0n July 23, 2019. (161., 1] 3.) On April 17, 2020, Apple served its first set 0f written discovery 0n First American, including Requests for Admission. (1d,, 1] 4. EX. 1.) The Requests for Admission primarily concern a key issue in this lawsuit: First American did not preserve any 0f the evidence required t0 prove its case, including the alleged iPhone that it claims started the subject fire. (Id, EXS. 1, 3.) Nor did First American invite Apple t0 inspect the fire scene 0r any 0f the evidence recovered from the scene. (Id., 1] 6, EX. 3.) Beginning in 2019, Apple made multiple requests that First American voluntarily dismiss the case because it had not preserved the fire scene 0r the alleged iPhone, but First American and its counsel did not respond t0 any 0f those requests. (Id., 1] 6, EXS. 2-3.) First American’s responses t0 discovery were due by May 18. (Id., 1] 5.) Because n0 communication from First American’s counsel had been received about the above-captioned case for over nine months despite multiple attempts t0 contact him by e-mail, telephone, and U.S. mail, counsel for Apple sent an e-mail t0 First American’s counsel 0n May 18 t0 inquire into the status 0f discovery. (Id, 1] 6 & EX. 2.) First American’s counsel responded by e-mail 0n May 19, stating, among other things, that he had not “paid the attention t0 the case that it perhaps deserves,” he would “get [counsel] written discovery responses as son [sic] as I can,” and that he would “discuss with the client the manifold issues you raise about the ultimate Viability 0f the case.” (Ibid.) Nearly two months later, 0n July 17, First American still had not served any responses, so Apple’s counsel sent another e-mail t0 again inquire about the status 0f the discovery responses. (Ibid.) First American’s counsel responded 0n July 17 stating that he was “working 0n the discovery responses” and asked Apple’s counsel t0 “[p]lease call me 0n Monday.” (Ibid.) _ 2 _ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT DEFENDANT APPLE INC.’S MOTION FOR REQUESTS FOR ADMISSION TO PLAINTIFF TO BE DEEMED ADMITTED, AND FOR SANCTIONS 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Apple’s counsel called First American’s counsel as requested 0n July 20 but was sent t0 voicemail and left a message. Apple’s counsel also sent an e-mail 0n July 20 asking t0 set up a time certain for a call. (161., W 6-7 & EX. 2.) First American’s counsel did not respond t0 the voicemail 0r the e-mail. (Ibid) Still having not received the responses, Apple’s counsel sent yet another e-mail 0n August 4 t0 inquire about the status 0f the responses and t0 inform First American’s counsel that a motion t0 deem the requests admitted would have t0 be filed if responses were not received by August 7. (Id, 1] 6 & EX. 2.) First American’s counsel has not responded. (Id, 1] 7.) First American has provided n0 responses whatsoever t0 Apple’s written discovery, which are now almost four months overdue. (161., 1] 5.) Despite refusing t0 communicate with Apple’s counsel about the responses since July 17, First American’s attorney appeared at the case management conference held in the above-captioned action 0n August 4. (Id., 1] 7.) ARGUMENT I. Legal Standard The standard for discovery in California is broad; information is discoverable if it is relevant 0r reasonably calculated t0 lead t0 the discovery 0f admissible evidence. (CCP §2017.010.) California courts construe the discovery statutes broadly t0 uphold the right t0 discovery wherever possible. (Flagship Theatres 0f Palm Desert, LLC v. Century Theatres, Inc. (201 1) 198 Cal.App.4th 1366, 1383 [131 Cal.Rptr.3d 519].) “Disclosure is a matter 0f right unless statutory 0r public policy considerations clearly prohibit it. Even in those instances wherein the statute requires a showing 0f good cause, that showing must be liberally construed.” (Greyhound Corp. v. Super. Court (1961) 56 Cal.2d 355, 378 [15 Cal.Rptr. 90] [emphasis added], superseded by statute 0n other grounds as stated in Dowden v. Super. Court (1999) 73 Cal.App.4th 126, 131-132 [86 Cal.Rptr.2d 180].) “California’s pretrial discovery procedures are designed t0 minimize the opportunities for fabrication and forgetfulness, and t0 eliminate the need for guesswork about the other side’s evidence, with all doubts about discovery are resolved in favor 0f disclosure.” (Glenfed Dev. Corp. v. Super. Court (1997) 53 Cal.App.4th 1113, 1119 [62 Ca1.Rptr.2d 195] [emphasis added].) -3- MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT DEFENDANT APPLE INC.’S MOTION FOR REQUESTS FOR ADMISSION TO PLAINTIFF TO BE DEEMED ADMITTED, AND FOR SANCTIONS 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 If a party does not timely respond t0 requests for admission, the propounding party may move for an order that the truth 0f any matters in the requests be deemed admitted. (CCP § 2033.280(b).) Further, when a party fails t0 timely respond, it also waives any objection t0 the requests for admission, including objections based 0n privilege 0r 0n the protection for work product. (CCP § 2033.280(a).) Where, as here, a party has failed t0 respond t0 discovery entirely, n0 separate statement is required in support 0f a discovery motion. (Cal. R. Ct. 3.1345(b)(1).) Additionally, there is n0 45- day time limit t0 make such a motion when a party has failed t0 respond t0 discovery at all. (Sinaiko Healthcare Consulting, Inc. v. Pac. Healthcare Consultants (2007) 148 Cal.App.4th 390, 41 1.) II. The Court Should Order That Apple’s Requests For Admission Are Deemed Admitted. First American has failed t0 respond t0 Apple’s requests for admission served 0n April 17, 2020. Those responses were due 0n May 18, 2020. In the requests, Apple seeks basic admissions related t0 key evidence in this case that First American neither preserved nor gave Apple an opportunity t0 inspect. First American’s failure t0 preserve any evidence regarding its claim will prevent it from making out a prima facie case against Apple. Apple intends t0 move for summary judgment 0n this basis, but First American’s failure t0 respond t0 any discovery whatsoever has hindered the development 0f admissible evidence t0 support a dispositive motion. First American’s counsel has provided n0 reason for the delay in responding 0r even a timeline by which First American will respond. (Skinner Decl., EX. 2.) Even though First American’s counsel appeared at the case management conference in this matter 0n August 4, as 0f at least July 20, First American’s counsel has ceased responding t0 communications from Apple’s counsel altogether. (Id., 1W 6-7 & EX. 2.) First American’s refusal t0 provide discovery should not be condoned by the Court. Apple must be permitted t0 conduct discovery in this action t0 obtain evidence that First American has nothing t0 support its claims. Discovery is the bedrock 0f the judicial process, and First American’s continued dilatory tactics merely serve t0 delay, encumber, and otherwise cause prejudice t0 Apple’s defense 0f this action. _ 4 _ MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT DEFENDANT APPLE INC.’S MOTION FOR REQUESTS FOR ADMISSION TO PLAINTIFF TO BE DEEMED ADMITTED, AND FOR SANCTIONS 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 III. Sanctions Are Appropriate Against First American. Apple is entitled t0 recover its attorney’s fees and costs in preparing this motion t0 force the Guild t0 comply With its discovery obligations. CCP § 2033.280(b) provides that “the requesting party may move for a monetary sanction under Chapter 7 (commencing with Section 2023010).” Section 2033.280(c), in turn, provides that “[ilt is mandatory that the court impose a monetary sanction under Chapter 7 (commencing with Section 2023.010 ) 0n the party 0r attorney, 0r both, whose failure t0 serve a timely response t0 requests for admission necessitated this motion.” (Emphasis added.) Thus, sanctions must be awarded. Apple seeks the imposition 0f sanctions against First American for the costs and attorney’s fees incurred in preparing this motion, in an amount of not less than $1,030.00. (Skinner Decl, 1] 9.) Substantial time and effort by undersigned counsel went into preparing this motion and the supporting papers. (Ibid.) The amount sought by Apple is substantially less than that actually incurred in the preparation and drafting 0f this motion and the supporting papers. (Ibid.)// CONCLUSION For the reasons stated above, the Court should deem admitted the subject matter in Apple’s requests for admission to First American. The Court also should sanction First American in an amount ofnot less than $1,030.00. Respectfully submitted, Jeffrey D. Skinner Schiff Hardin LLP Attorneyfor Defendant Apple Inc. and Purchasing Power LLC Dated: September 9, 2020 -5- MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT DEFENDANT APPLE INC.’S MOTION FOR REQUESTS FOR ADMISSION TO PLAINTIFF TO BE DEEMED ADMITTED, AND FOR SANCTIONS