Order After Hearing POSCal. Super. - 6th Dist.May 31, 2019on 10/14/2021 11:09 NNBViewed By: A. FlorescaCase #19CV349010 Envelope: 7463712 EFS-020 ATTORNEY 0R PARTY WITHOUT ATTORNEY: STATE BAR NO-I FOR COURT USE ONLY NAME: Richard O. McDonald (SBN 09942) FIRM NAME: Hopkins & Carley STREETADDRESS: 70 S. First St. CITY: San Jose STATE: Ca ZIP CODE: 951 13 TELEPHONE No.: 408-286-9800 FAX No.: E-MAIL ADDRESS: rmcdonald@hopkinscarley.com ATrORNEY FOR(name): Plaintiff A-1 Trading, Inc. SUPERIOR COURT 0F CALIFORNIA, COUNTY 0F Santa Clara STREETADDRESS: 191 N. First St. MAILING ADDRESS: CITY AND ZIP CODE: San Jose, CA 951 13 BRANCH NAME: CASE NUMBER: PLAINTIFF/PETITIONER: A-1 Trading, Inc. 190V349010 DEFENDANT/RESPONDENT: JUDICIAL OFFICER: I _ OTHER: u.s. TeIePacific Holdings Corp., et aI. H°“' Drew Taka'Ch' DEPT: PROPOSED ORDER (COVER SHEET) 2 NOTE: This cover sheet is to be used to electronically file and submit to the court a proposed order. The proposed order sent electronically to the court must be in PDF format and must be attached to this cover sheet. In addition, a version of the proposed order in an editable word-processing format must be sent to the court at the same time as this cover sheet and the attached proposed order in PDF format are filed. 1. Name ofthe party submitting the proposed order: A-1 Trading, Inc. 2. Title of the proposed order: ORDER ON PLAINTIFF'S MOTION TO COMPEL FURTHER RESPONSES...(B) CANCELLED TESTING EVENT 3. The proceeding to which the proposed order relates is: a. Description of proceeding: Motion to compel further responses. b. Date and time: October 7, 2021 c. Place: Dept 2, Santa Clara County Superior ((Line 9 on 9am L&M calendarfor Oct 7). 4. The proposed order was served on the other parties in the case. Richard O. McDonald ’ (TYPE OR PRINT NAME) V(SIGNATURE OF PARTY OR ATTORNEY) Page 1 of2 Form Adopted for Mandatory Use PROPOSED ORDER (COVER SH EET) Cal. Rules of Court, Judicial Council of California . . . rules 2.252, 3.1312 EFS-020 [Rev. February 1, 2017] (Electronlc Flllng) www.courts.ca.gov EFS-020 CASE NAME: CASE NUMBER: A-1 v. us TeIePacific Holdings, et aL; 190V349°10 PROOF OF ELECTRONIC SERVICE PROPOSED ORDER 1. | am at least 18 years old and not a party to this action. a- My residence or business address is (specify): 70 S. First St., San Jose, CA 951 13 b. My electronic service address is (specify): mrojas@hopkinscarley.com 2_ | electronically served the Proposed Order (Cover Sheet) with a proposed order in PDF format attached, and a proposed order in an editable word-processing format as follows: a. On (name ofperson served) (If the person served is an attorney, the pariy or parties represented should also be stated): US TeIePacific Holdings c/o Sean Moriarty, Carmelita Ong; and Dennis Moriarty via the Court's Odyssey filing system. b. To (electronic service address of person served): smoriarty@cwmlaw.com; cong@cwm|aw.com; dmoriarty@cwm|aw.com c. On (date): October 14, 2021 E Electronic service of the Proposed Order (Cover Sheet) with the attached proposed order in PDF format and service of the proposed order in an editable word-processing format on additional persons are described in an attachment. | declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Date: October 14, 2021 Mary Anne Rojas } (TYPE OR PRINT NAME OF DECLARANT) IGNATURE OF DEC NT) EFS-OZO [Rev. February 1, 2017] PROPOSED ORDER (COVER SH EET) Page 2 of2 (Electronic Filing) 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 HOPKINS & CARLEY ATTORNEYS AT LAW SAN JOSE OPALO ALTO Filed October 22, 2021 Clerk of the Court Superior Court of CA County of Santa Clara 1QCV34901 O By: fmiller SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SANTA CLARA A-l TRADING, INC., Plaintiff, V. U.S. TelePacific Holdings Corp. dba TelePacific Communications, and DOES 1 through 50, inclusive, Defendants. 355\3860873.2 CASE NO. 19CV349010 ] ORDER ON PLAINTIFF’S MOTION TO COMPEL FURTHER RESPONSES TO: (1)(A)FORM INTERROGATORIES- GENERAL, SET ONE; (B) SPECIAL INTERROGATORIES, SET ONE; (C) REQUESTS FOR PRODUCTION 0F DOCUMENTS, SET ONE; (D) REQUESTS FOR PRODUCTION 0F DOCUMENTS, SET TWO; (E) REQUESTS FOR PRODUCTION 0F DOCUMENTS, SET THREE; AND (2)F0R MONETARY SANCTIONS (A) FOR DISCOVERY ABUSE; AND (B) CANCELLED TESTING EVENT Date: October 7, 2021 Time: 9:00 am. Dept: 2 Judge: Hon. Drew Takaichi Complaint Filed: May 31, 2019 Trial Date: Not Set Trial Setting Conference: November 23, 2021 [PROPOSED] ORDER ON PLAINTIFF’S MOTION TO COMPEL FURTHER RESPONSES. .. 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 HOPKINS & CARLEY ATTORNEYS AT LAW SAN JOSE OPALO ALTO Plaintiff s Motion t0 Compel Further Responses t0 Form Interrogatories - General, Set one; Special Interrogatories, Set One; Requests for Production 0f Documents, Set One; Requests for Production 0f Documents, Set Two; and Requests for Production 0f Documents, Set Three; and for Monetary Sanctions for Discovery Abuse and Cancelled Testing Event, came 0n for regular hearing 0n October 7, 2021, in Department 2, the Honorable Drew Takaichi presiding (the “M0tion”). The Court issued a tentative ruling, and counsel for plaintiff and defendant appeared t0 contest certain aspects thereof. After consideration 0f the points and authorities presented by the parties, the declarations 0f counsel and supporting exhibits, the arguments 0f counsel made at the hearing, and good cause appearing, the Court hereby adopts its tentative ruling and orders as follows: Background: This action is for damages allegedly suffered by plaintiff A-l Trading, Inc. (“plaintiff”) from a large volume 0f water that entered plaintiff’ s commercial premises from the adjoining commercial premises of defendant TelePacific Holdings Corp. (“defendant”). The flow of water was caused by failure 0f a water filter connected t0 a commercial water line used to cool defendant’s equipment. On May 3 1, 2019, plaintiff filed complaint against defendant alleging a single cause of action for negligence. On October 15, 2019, plaintiff served defendant with form interrogatories, set one; special interrogatories, set one; and request for production of documents, sets one. On December 4, 2019, defendant served responses t0 the discovery requests. On September 11, 2020, defendant served an amended response t0 the request for production 0f documents, set one. On June 20, 2020, plaintiff served request for production of documents, set two, and 0n September 11, 2020, defendant served a response. On November 13, 2020, plaintiff served request for production of documents, set three. Defendant failed t0 serve a response t0 the request for production 0f documents, set three, prior to the filing 0f the instant motion. The parties engaged in ongoing meet and confer, and extended due dates for serving responses and filing motions t0 compel. Ultimately, the parties were unable t0 resolve discovery 355\3860873.2 - 2 - [PROPOSED] ORDER ON PLAINTIFF’S MOTION TO COMPEL FURTHER RESPONSES. .. 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 HOPKINS & CARLEY ATTORNEYS AT LAW SAN JOSE OPALO ALTO issues. On June 25, 2021, plaintiff filed the instant motions t0 compel further responses t0 form interrogatories, set one, special interrogatories, set one, request for production of documents, sets one and two, and to compel responses to request for production 0f documents, set three. Defendant then served a response to the request for production of documents, set three 0n June 28, 2021. On September 21, 2021, defendant served supplemental verified responses to the form and special interrogatories and request for production of documents, sets one and two. On September 24, 2021, defendant filed opposition to the motion to compel, and 0n September 30, 2021, plaintiff filed reply. Analysis: By serving the supplemental responses and response t0 the request for production 0f documents, set three, defendant contends that it is in full compliance With all discovery. Plaintiff disputes that the initial and further responses 0f defendant are code complaint, and requests ruling on the motion based 0n responses as of date of filing the motion. Trial setting conference is set 0n November 23, 2021. In order t0 move discovery t0 completion, the court Will issue ruling 0n the motion t0 compel, and enter orders With respect t0 the supplemental responses. ORDER 1. Form Interrogatories, set n0. one (”Fl”) FI nos. 12.1, 12.3, 12.6, and 12.7. The objections 0f attorney-client privilege, attorney work product, expert opinion, and expert work product are OVERRULED. Further, the court finds that responses are incomplete and/or evasive, and do not comply with the requirements 0f the Code of Civil Procedure. Plaintiff” s motion to compel is GRANTED. FI no. 15. 1. N0 response was served by defendant. Plaintiff s motion to compel is GRANTED and obj ections are waived. 355\3860873.2 - 3 - [PROPOSED] ORDER ON PLAINTIFF’S MOTION TO COMPEL FURTHER RESPONSES. .. 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 HOPKINS & CARLEY ATTORNEYS AT LAW SAN JOSE OPALO ALTO 2. Special Interrogatories, set n0. one (“SI”) SI n0. 3. The response is incomplete and not code compliant. Motion t0 compel is GRANTED. SI no. 5, 6, 7, and 8. Defendant’s objection t0 each SI regarding expert opinion is OVERRULED. The response t0 each SI is evasive, is not responsive to the SI and is not code compliant. Motion to compel is GRANTED. SI no. 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, and 32. The objections in the response t0 each SI are OVERRULED. The response to each SI is evasive, is not responsive to the SI and is not code compliant. Motion t0 compel is GRANTED. 3. Request for production 0f documents set one (“RPD 1”) RPD 1 n0. 2. The obj ections of attorney-client privilege and attorney work product are OVERRULED. The response and amended response t0 the request are incomplete, evasive, are not responsive to the request and are not code compliant. Motion t0 compel is GRANTED. RPD 1 no. 3. The obj ections asserted to this request are OVERRULED. The response and amended response to the request are incomplete, evasive, are not responsive to the request and are not code compliant. Motion to compel is GRANTED. RPD 1 n0. 9. The obj ections asserted t0 this request are OVERRULED. The response and amended response t0 the request are incomplete, evasive, are not responsive t0 the request and are not code compliant. Motion t0 compel is GRANTED. 4. Request for production of documents set two (“RPD 2”) RPD 2 n0. 13. The obj ections asserted t0 this request are OVERRULED. The response t0 the request is incomplete and is not code compliant. Motion t0 compel is GRANTED. RPD 2 n0. 14. 355\3860873.2 _ 4 _ [PROPOSED] ORDER ON PLAINTIFF’S MOTION TO COMPEL FURTHER RESPONSES. .. 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 HOPKINS & CARLEY ATTORNEYS AT LAW SAN JOSE OPALO ALTO The obj ections asserted t0 this request are OVERRULED. Defendant does not refute plaintiff s assertion that defendant admits there are further documents responsive t0 the request, that defendant agreed to produce the additional documents, and that the additional documents have not been produced as 0f the date 0f the motion to compel. The response t0 the request is incomplete and is not code compliant. Motion to compel is GRANTED. RPD 2 nos. 15 and 16. The investigation of defendant’s insurer(s) may have been at the direction 0f defendant’s attorney, and may include privileged communications between defendant and defendant’s counsel and/or attorney work product. That said, the response t0 each request is incomplete and not code compliant. The motion t0 compel is GRANTED. If any documents are considered protected from disclosure by the attorney-client privilege or attorney work product doctrine, defendant shall provide in the verified response a privilege 10g With sufficient information to identify the document and basis for exercise 0f the privilege 0r doctrine. RPD 2 nos. 17 and 18. Defendant’s verified response t0 each request states that the documents identified in the response are the “. . .only potential responsive materials in responding party’s possession, custody and control. . .” The response is code compliant, and the motion to compel is DENIED. 5. Request for production of documents, set three, nos. 19-27. N0 responses were served by defendant. Motion t0 compel is GRANTED and obj ections are waived. 6. Orders for further responses The parties shall meet and confer forthwith t0 determine Whether defendant’s supplemental responses served on September 21, 2021 are in compliance with the above rulings. If a supplemental response is agreed by the parties as conforming to court order, a further response Will not be required, and Will be deemed t0 have been made Without objections (except as t0 privilege log in RPD 2 nos. 15 and 16). If the parties d0 not agree that a supplemental response is in compliance with the above rulings, then defendant shall serve a further verified response (and produce responsive documents t0 the request for production of documents) Without 355\3860873.2 - 5 - [PROPOSED] ORDER ON PLAINTIFF’S MOTION TO COMPEL FURTHER RESPONSES. .. 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 HOPKINS & CARLEY ATTORNEYS AT LAW SAN JOSE OPALO ALTO objections (except as t0 a privilege log in RPD 2 nos. 15 and 16) on 0r before November 5, 2021. The parties are further ordered to Informal Discovery Conference (“IDC”) with a discovery facilitator, which shall take place after meet and confer, t0 resolve issues that may remain With defendant’s further responses, before filing additional discovery motions or possible appointment 0f a discovery referee. Stipulations t0 extend time t0 complete the process, if any, shall be in writing signed by counsel. The court’s facilitator Will inform the parties by email of the designated discovery facilitator, and the parties shall promptly cooperate and comply With all reasonable requests 0f the discovery facilitator. It is the expectation of the court that parties and counsel Will timely participate in good faith with the goal of promptly resolving discovery issues, and serving code compliant responses and responsive documents before the trial setting conference. 7. Expert Witness fees and costs for cancelled test. The parties stipulated to a protocol for forensic, scientific testing of the subject Honeywell filter which was in the possession of defendant’s insurer in Connecticut. This included transport 0f the filter from Connecticut t0 defendant’s consultant, and from the consultant to a testing facility in Anaheim, CA, followed by transport t0 a second facility in Hayward, CA. One expert of plaintiff traveled from Southern California t0 the Hayward location. However, at the time scheduled for the testing, the appearing experts were informed that the filter had not been transferred from Anaheim. Plaintiff incurred $6,468 in expert fees and costs for the cancelled testing. The dispute is which party is responsible for payment of the fees and costs. Defendant does not contest plaintiff s assertions about chain 0f possession 0f the filter being With defendant’s insurer in Connecticut, and With defendant’s consultant in Anaheim. Defendant does not dispute the assertions that defendant exclusively made the arrangements and logistics for the inspection and testing of the filter, including designation 0f testing facilities. Instead, defendant asserts that each party was informed 0f the location, date and time of the inspection, and therefore, each party had equal obligation to confirm in advance that the filter was transferred t0 Hayward for the scheduled testing. Plaintiff” s failure to confirm was the reason its experts appeared at the testing site for the testing that could not take place. 355\3860873.2 - 6 - [PROPOSED] ORDER ON PLAINTIFF’S MOTION TO COMPEL FURTHER RESPONSES. .. 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 HOPKINS & CARLEY ATTORNEYS AT LAW SAN JOSE OPALO ALTO Defendant’s argument is not persuasive. Defendant’s consultant had possession 0f the filter, which imputes custody, control and superior access t0 information to defendant. It also infers an obligation of defendant (and ability) t0 direct its consultant t0 transfer the filter in time for the testing Where experts had arranged t0 appear on a specific date and time. If there was a problem, defendant should have informed plaintiff in time to notify its experts. This was not done and n0 explanation is provided. Under these circumstances, it is the obligation of defendant, not plaintiff, t0 confirm timely arrival 0f the filter at the facility. The amount claimed for reimbursement for expert fees and costs is $5,185.59 for Vollmer Gray and $1,282.50 for Shepherd Services, for a total $6,468, as stated in plaintiff’s counsel’s declaration and evidenced by invoices. Defendant does not dispute plaintiff s evidence of the amount incurred for the experts appearing at the cancelled inspection. Therefore, defendant is ordered to reimburse plaintiff s attorneys for the expert’s fees and costs in the amount 0f $6,468, payable on 0r before November 5, 2021. 8. Sanctions. Defendant contends, among other things, that plaintiff’ s notices 0f motion herein did not comply with the requirements 0f Code 0f Civil Procedure section 2023.040. Plaintiff contends it substantially complied with the notice requirements and there was no prejudice to defendant. In the alternative, plaintiff has requested leave of Court t0 re-notice the motion so that its request for sanctions may be heard on the merits. Plaintiff” s request for leave 0f Court to re-notice its request for sanctions against defendant is granted. Plaintiff” s request for discovery sanctions is continued t0 November 18, 2021, at 9:00 a.m., subject t0 plaintiff re-noticing the motion for sanctions to comply With Code 0f Civil Procedure section 2023.040. No further briefing 0n the issue of discovery sanctions shall be filed, but further arguments may be presented at the continued hearing. 355\3860873.2 - 7 - [PROPOSED] ORDER ON PLAINTIFF’S MOTION TO COMPEL FURTHER RESPONSES. .. 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 HOPKINS 8: CARLEY ATTORNEYS AT LAW SAN 105E oPALO ALTO 9. The court has set further hearing 0n the matter for November 18, 2021 at 9:00 am. in Department 2 0f the above-entitled court. Plaintiff shall serve an amended notice 0f this hearing. IT IS SO ORDERED. Approved as to form: Sean Moriarty IT IS SO ORDERED: Dated: HON. DREW TAKAICHI JUDGE OF THE SUPERIOR COURT 355\3860873.2 - 8 - [PROPOSED] ORDER ON PLAINTIFF’S MOTION TO COMPEL FURTHER RESPONSES. .. October 20, 2021 Signed: 10/20/2021 04:51 PM Letter to Court ' s Jhopklns carley 7o Firertfe: San Jose, CA 951 13 T. 408.286.9800 F. 408.998.4790 October 14, 2021 Richard O. McDonald rmcdonaId@hopkinscarley.com T. 408.286.9800 F. 408.938.6245 Via E-Mail and USPS Hon. Drew Takaichi Santa Clara County Superior 191 N. First St. Dept. 2 San Jose, CA 951 13 Re: A-1 Trading, Inc. v. U.S. TeIePacific Holdings Corp., et al. Santa Clara County Superior Court Case No. 190V349010 Dear Judge Takaichi Per your instructions, | prepared a form of order for the referenced case (Line 9 on 9am L&M calendar for Oct 7) and your tentative ruling thereon. We submitted our proposed order to defendant’s counsel, who expressed objections as reflected in counsel’s several email exchanges. Mr. Moriarty asked that we submit our emails about my proposed order to you, and | confirmed with him that | would do so. Having said that, attached please find a clean and redline of my proposed form of order, which is true to your tentative ruling, subject only to the editorial corrections that you confirmed from the bench, and how | understood the Court's intent regarding a continued hearing on the issue of discovery sanctions. | also include counsel’s emails about Mr. Moriarty’s requested changes, as to which | did not include in the attached. We leave the matter for your final determination and order. Respectfully submitted, HOPKINS & CARLEY A Law Corporation Richard O. McDonald ROM Enclosures cc: Sean Moriarty Palo Alto o San Francisco u San Jose 355\3865314.1 Hopkins&Carley u ALaw Corporation - hopkinscarley.com Plaintiff's Proposed Order 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 HOPKINS & CARLEY ATTORNEYS AT LAW SAN JOSE OPALO ALTO SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SANTA CLARA A-l TRADING, INC., Plaintiff, V. U.S. TelePacific Holdings Corp. dba TelePacific Communications, and DOES 1 through 50, inclusive, Defendants. 355\3860873.2 CASE NO. 19CV349010 [PROPOSED] ORDER ON PLAINTIFF’S MOTION TO COMPEL FURTHER RESPONSES TO: (1)(A)FORM INTERROGATORIES- GENERAL, SET ONE; (B) SPECIAL INTERROGATORIES, SET ONE; (C) REQUESTS FOR PRODUCTION 0F DOCUMENTS, SET ONE; (D) REQUESTS FOR PRODUCTION 0F DOCUMENTS, SET TWO; (E) REQUESTS FOR PRODUCTION 0F DOCUMENTS, SET THREE; AND (2)F0R MONETARY SANCTIONS (A) FOR DISCOVERY ABUSE; AND (B) CANCELLED TESTING EVENT Date: October 7, 2021 Time: 9:00 am. Dept: 2 Judge: Hon. Drew Takaichi Complaint Filed: May 31, 2019 Trial Date: Not Set Trial Setting Conference: November 23, 2021 [PROPOSED] ORDER ON PLAINTIFF’S MOTION TO COMPEL FURTHER RESPONSES. .. 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 HOPKINS & CARLEY ATTORNEYS AT LAW SAN JOSE OPALO ALTO Plaintiff s Motion t0 Compel Further Responses t0 Form Interrogatories - General, Set one; Special Interrogatories, Set One; Requests for Production 0f Documents, Set One; Requests for Production 0f Documents, Set Two; and Requests for Production 0f Documents, Set Three; and for Monetary Sanctions for Discovery Abuse and Cancelled Testing Event, came 0n for regular hearing 0n October 7, 2021, in Department 2, the Honorable Drew Takaichi presiding (the “M0tion”). The Court issued a tentative ruling, and counsel for plaintiff and defendant appeared t0 contest certain aspects thereof. After consideration 0f the points and authorities presented by the parties, the declarations 0f counsel and supporting exhibits, the arguments 0f counsel made at the hearing, and good cause appearing, the Court hereby adopts its tentative ruling and orders as follows: Background: This action is for damages allegedly suffered by plaintiff A-l Trading, Inc. (“plaintiff”) from a large volume 0f water that entered plaintiff’ s commercial premises from the adjoining commercial premises of defendant TelePacific Holdings Corp. (“defendant”). The flow of water was caused by failure 0f a water filter connected t0 a commercial water line used to cool defendant’s equipment. On May 3 1, 2019, plaintiff filed complaint against defendant alleging a single cause of action for negligence. On October 15, 2019, plaintiff served defendant with form interrogatories, set one; special interrogatories, set one; and request for production of documents, sets one. On December 4, 2019, defendant served responses t0 the discovery requests. On September 11, 2020, defendant served an amended response t0 the request for production 0f documents, set one. On June 20, 2020, plaintiff served request for production of documents, set two, and 0n September 11, 2020, defendant served a response. On November 13, 2020, plaintiff served request for production of documents, set three. Defendant failed t0 serve a response t0 the request for production 0f documents, set three, prior to the filing 0f the instant motion. The parties engaged in ongoing meet and confer, and extended due dates for serving responses and filing motions t0 compel. Ultimately, the parties were unable t0 resolve discovery 355\3860873.2 - 2 - [PROPOSED] ORDER ON PLAINTIFF’S MOTION TO COMPEL FURTHER RESPONSES. .. 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 HOPKINS & CARLEY ATTORNEYS AT LAW SAN JOSE OPALO ALTO issues. On June 25, 2021, plaintiff filed the instant motions t0 compel further responses t0 form interrogatories, set one, special interrogatories, set one, request for production of documents, sets one and two, and to compel responses to request for production 0f documents, set three. Defendant then served a response to the request for production of documents, set three 0n June 28, 2021. On September 21, 2021, defendant served supplemental verified responses to the form and special interrogatories and request for production of documents, sets one and two. On September 24, 2021, defendant filed opposition to the motion to compel, and 0n September 30, 2021, plaintiff filed reply. Analysis: By serving the supplemental responses and response t0 the request for production 0f documents, set three, defendant contends that it is in full compliance With all discovery. Plaintiff disputes that the initial and further responses 0f defendant are code complaint, and requests ruling on the motion based 0n responses as of date of filing the motion. Trial setting conference is set 0n November 23, 2021. In order t0 move discovery t0 completion, the court Will issue ruling 0n the motion t0 compel, and enter orders With respect t0 the supplemental responses. ORDER 1. Form Interrogatories, set n0. one (”Fl”) FI nos. 12.1, 12.3, 12.6, and 12.7. The objections 0f attorney-client privilege, attorney work product, expert opinion, and expert work product are OVERRULED. Further, the court finds that responses are incomplete and/or evasive, and do not comply with the requirements 0f the Code of Civil Procedure. Plaintiff” s motion to compel is GRANTED. FI no. 15. 1. N0 response was served by defendant. Plaintiff s motion to compel is GRANTED and obj ections are waived. 355\3860873.2 - 3 - [PROPOSED] ORDER ON PLAINTIFF’S MOTION TO COMPEL FURTHER RESPONSES. .. 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 HOPKINS & CARLEY ATTORNEYS AT LAW SAN JOSE OPALO ALTO 2. Special Interrogatories, set n0. one (“SI”) SI n0. 3. The response is incomplete and not code compliant. Motion t0 compel is GRANTED. SI no. 5, 6, 7, and 8. Defendant’s objection t0 each SI regarding expert opinion is OVERRULED. The response t0 each SI is evasive, is not responsive to the SI and is not code compliant. Motion to compel is GRANTED. SI no. 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, and 32. The objections in the response t0 each SI are OVERRULED. The response to each SI is evasive, is not responsive to the SI and is not code compliant. Motion t0 compel is GRANTED. 3. Request for production 0f documents set one (“RPD 1”) RPD 1 n0. 2. The obj ections of attorney-client privilege and attorney work product are OVERRULED. The response and amended response t0 the request are incomplete, evasive, are not responsive to the request and are not code compliant. Motion t0 compel is GRANTED. RPD 1 no. 3. The obj ections asserted to this request are OVERRULED. The response and amended response to the request are incomplete, evasive, are not responsive to the request and are not code compliant. Motion to compel is GRANTED. RPD 1 n0. 9. The obj ections asserted t0 this request are OVERRULED. The response and amended response t0 the request are incomplete, evasive, are not responsive t0 the request and are not code compliant. Motion t0 compel is GRANTED. 4. Request for production of documents set two (“RPD 2”) RPD 2 n0. 13. The obj ections asserted t0 this request are OVERRULED. The response t0 the request is incomplete and is not code compliant. Motion t0 compel is GRANTED. RPD 2 n0. 14. 355\3860873.2 _ 4 _ [PROPOSED] ORDER ON PLAINTIFF’S MOTION TO COMPEL FURTHER RESPONSES. .. 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 HOPKINS & CARLEY ATTORNEYS AT LAW SAN JOSE OPALO ALTO The obj ections asserted t0 this request are OVERRULED. Defendant does not refute plaintiff s assertion that defendant admits there are further documents responsive t0 the request, that defendant agreed to produce the additional documents, and that the additional documents have not been produced as 0f the date 0f the motion to compel. The response t0 the request is incomplete and is not code compliant. Motion to compel is GRANTED. RPD 2 nos. 15 and 16. The investigation of defendant’s insurer(s) may have been at the direction 0f defendant’s attorney, and may include privileged communications between defendant and defendant’s counsel and/or attorney work product. That said, the response t0 each request is incomplete and not code compliant. The motion t0 compel is GRANTED. If any documents are considered protected from disclosure by the attorney-client privilege or attorney work product doctrine, defendant shall provide in the verified response a privilege 10g With sufficient information to identify the document and basis for exercise 0f the privilege 0r doctrine. RPD 2 nos. 17 and 18. Defendant’s verified response t0 each request states that the documents identified in the response are the “. . .only potential responsive materials in responding party’s possession, custody and control. . .” The response is code compliant, and the motion to compel is DENIED. 5. Request for production of documents, set three, nos. 19-27. N0 responses were served by defendant. Motion t0 compel is GRANTED and obj ections are waived. 6. Orders for further responses The parties shall meet and confer forthwith t0 determine Whether defendant’s supplemental responses served on September 21, 2021 are in compliance with the above rulings. If a supplemental response is agreed by the parties as conforming to court order, a further response Will not be required, and Will be deemed t0 have been made Without objections (except as t0 privilege log in RPD 2 nos. 15 and 16). If the parties d0 not agree that a supplemental response is in compliance with the above rulings, then defendant shall serve a further verified response (and produce responsive documents t0 the request for production of documents) Without 355\3860873.2 - 5 - [PROPOSED] ORDER ON PLAINTIFF’S MOTION TO COMPEL FURTHER RESPONSES. .. 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 HOPKINS & CARLEY ATTORNEYS AT LAW SAN JOSE OPALO ALTO objections (except as t0 a privilege log in RPD 2 nos. 15 and 16) on 0r before November 5, 2021. The parties are further ordered to Informal Discovery Conference (“IDC”) with a discovery facilitator, which shall take place after meet and confer, t0 resolve issues that may remain With defendant’s further responses, before filing additional discovery motions or possible appointment 0f a discovery referee. Stipulations t0 extend time t0 complete the process, if any, shall be in writing signed by counsel. The court’s facilitator Will inform the parties by email of the designated discovery facilitator, and the parties shall promptly cooperate and comply With all reasonable requests 0f the discovery facilitator. It is the expectation of the court that parties and counsel Will timely participate in good faith with the goal of promptly resolving discovery issues, and serving code compliant responses and responsive documents before the trial setting conference. 7. Expert Witness fees and costs for cancelled test. The parties stipulated to a protocol for forensic, scientific testing of the subject Honeywell filter which was in the possession of defendant’s insurer in Connecticut. This included transport 0f the filter from Connecticut t0 defendant’s consultant, and from the consultant to a testing facility in Anaheim, CA, followed by transport t0 a second facility in Hayward, CA. One expert of plaintiff traveled from Southern California t0 the Hayward location. However, at the time scheduled for the testing, the appearing experts were informed that the filter had not been transferred from Anaheim. Plaintiff incurred $6,468 in expert fees and costs for the cancelled testing. The dispute is which party is responsible for payment of the fees and costs. Defendant does not contest plaintiff s assertions about chain 0f possession 0f the filter being With defendant’s insurer in Connecticut, and With defendant’s consultant in Anaheim. Defendant does not dispute the assertions that defendant exclusively made the arrangements and logistics for the inspection and testing of the filter, including designation 0f testing facilities. Instead, defendant asserts that each party was informed 0f the location, date and time of the inspection, and therefore, each party had equal obligation to confirm in advance that the filter was transferred t0 Hayward for the scheduled testing. Plaintiff” s failure to confirm was the reason its experts appeared at the testing site for the testing that could not take place. 355\3860873.2 - 6 - [PROPOSED] ORDER ON PLAINTIFF’S MOTION TO COMPEL FURTHER RESPONSES. .. 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 HOPKINS & CARLEY ATTORNEYS AT LAW SAN JOSE OPALO ALTO Defendant’s argument is not persuasive. Defendant’s consultant had possession 0f the filter, which imputes custody, control and superior access t0 information to defendant. It also infers an obligation of defendant (and ability) t0 direct its consultant t0 transfer the filter in time for the testing Where experts had arranged t0 appear on a specific date and time. If there was a problem, defendant should have informed plaintiff in time to notify its experts. This was not done and n0 explanation is provided. Under these circumstances, it is the obligation of defendant, not plaintiff, t0 confirm timely arrival 0f the filter at the facility. The amount claimed for reimbursement for expert fees and costs is $5,185.59 for Vollmer Gray and $1,282.50 for Shepherd Services, for a total $6,468, as stated in plaintiff’s counsel’s declaration and evidenced by invoices. Defendant does not dispute plaintiff s evidence of the amount incurred for the experts appearing at the cancelled inspection. Therefore, defendant is ordered to reimburse plaintiff s attorneys for the expert’s fees and costs in the amount 0f $6,468, payable on 0r before November 5, 2021. 8. Sanctions. Defendant contends, among other things, that plaintiff’ s notices 0f motion herein did not comply with the requirements 0f Code 0f Civil Procedure section 2023.040. Plaintiff contends it substantially complied with the notice requirements and there was no prejudice to defendant. In the alternative, plaintiff has requested leave of Court t0 re-notice the motion so that its request for sanctions may be heard on the merits. Plaintiff” s request for leave 0f Court to re-notice its request for sanctions against defendant is granted. Plaintiff” s request for discovery sanctions is continued t0 November 18, 2021, at 9:00 a.m., subject t0 plaintiff re-noticing the motion for sanctions to comply With Code 0f Civil Procedure section 2023.040. No further briefing 0n the issue of discovery sanctions shall be filed, but further arguments may be presented at the continued hearing. 355\3860873.2 - 7 - [PROPOSED] ORDER ON PLAINTIFF’S MOTION TO COMPEL FURTHER RESPONSES. .. 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 HOPKINS 8: CARLEY ATTORNEYS AT LAW SAN 105E oPALO ALTO 9. The court has set further hearing 0n the matter for November 18, 2021 at 9:00 am. in Department 2 0f the above-entitled court. Plaintiff shall serve an amended notice 0f this hearing. IT IS SO ORDERED. Approved as to form: Sean Moriarty IT IS SO ORDERED: Dated: HON. DREW TAKAICHI JUDGE OF THE SUPERIOR COURT 355\3860873.2 - 8 - [PROPOSED] ORDER ON PLAINTIFF’S MOTION TO COMPEL FURTHER RESPONSES. .. Redlined Changes 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 HOPKINS 8: CARLEY ATTORNEYS AT LAW SAN 105E OPALO ALTO SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SANTA CLARA A-l TRADING, INC., Plaintiff, V. U.S. TelePacific Holdings Corp. dba TelePacific Communications, and DOES 1 through 50, inclusive, Defendants. 355\3869843.-1-3860873.2 CASE NO. 19CV349010 [PROPOSED] ORDER ON PLAINTIFF’S MOTION TO COMPEL FURTHER RESPONSES T0: (1)(A)FORM INTERROGATORIES- GENERAL, SET ONE; (B) SPECIAL INTERROGATORIES, SET ONE; (C) REQUESTS FOR PRODUCTION 0F DOCUMENTS, SET ONE; (D) REQUESTS FOR PRODUCTION 0F DOCUMENTS, SET Two; (E) REQUESTS FOR PRODUCTION 0F DOCUMENTS, SET THREE; AND (2)FOR MONETARY SANCTIONS (A)FOR DISCOVERY ABUSE; AND (B) CANCELLED TESTING EVENT Date: October 7, 2021 Time: 9:00 am. Dept: 2 Judge: Hon. Drew Takaichi Complaint Filed: May 3 1, 2019 Trial Date: Not Set Trial Setting Conference: November 23, 2021 [PROPOSED] ORDER ON PLAINTIFF’S MOTION TO COMPEL FURTHER RESPONSES. .. 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 HOPKINS 8: CARLEY ATTORNEYS AT LAW SAN 105E OPALO AL‘ro Plaintiff’ s Motion to Compel Further Responses t0 Form Interrogatories - General, Set one; Special Interrogatories, Set One; Requests for Production 0f Documents, Set One; Requests for Production of Documents, Set Two; and Requests for Production 0f Documents, Set Three; and for Monetary Sanctions for Discovery Abuse and Cancelled Testing Event, came on for regular hearing on October 7, 2021, in Department 2, the Honorable Drew Takaichi presiding (the “Motion”). The6mg issued i-Es-uneefieséed-Temafilve-Rufinga tentative ruling; and counsel for Qlaintiff and defendant aggeared to contest certain asgects thereof. After consideration 0f the goints and authorities Qresented bx the gartiesa the declarations 0f counsel and suggorting exhibits, the arguments of counsel made at the hearing! and good cause aggearing, the Court herebg adogts its tentative ruling and orders as follows: Background: This action is for damages allegedly suffered by plaintiff A-l Trading, Inci (“plaintiff’) from a large volume 0f water that entered plaintiff” s commercial premises from the adjoining commercial premises 0f defendant TelePacific Holdings Corp. (“defendant”). The flow of water was caused by failure of a water filter connected to a commercial water line used t0 c001 defendant’s equipment. On May 3 1, 2019, plaintiff filed complaint against defendant alleging a single cause 0f action for negligence. On October 15, 2019, plaintiff served defendant with form interrogatories, set one; special interrogatories, set one; and request for production of documents, sets one. On December 4, 2019, defendant served responses t0 the discovery requests. On September 11, 2020, defendant served an amended response t0 the request for production of documents, set one. On June 20, 2020, plaintiff served request for production of documents, set two, and on September 11, 2020, defendant served a response. On November 13, 2020, plaintiff served request for production 0f documents, set three. Defendant failed t0 serve a response t0 the request for production of documents, set three, prior to the filing 0f the instant motion. The parties engaged in ongoing meet and confer, and extended due dates for serving responses and filing motions t0 compel. Ultimately, the parties were unable t0 resolve discovery 3558869843438608732 - 2 - [PROPOSED] ORDER ON PLAINTIFF’S MOTION TO COMPEL FURTHER RESPONSES. .. 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 HOPKINS 8: CARLEY ATTORNEYS AT LAW SAN 105E OPALO ALTO issues. On June 25, 2021, plaintiff filed the instant motions to compel further responses to form interrogatories, set one, special interrogatories, set one, request for production of documents, sets one and two, and to compel responses t0 request for production 0f documents, set three. Defendant then served a response t0 the request for production of documents, set three on June 28, 2021. On September 21, 2021, defendant served supplemental verified responses t0 the form and special interrogatories and request for production of documents, sets one and two. On September 24, 2021, defendant filed opposition to the motion t0 compel, and on September 30, 2021, plaintiff filed reply. Analysis: By serving the supplemental responses and response to the request for production of documents, set three, defendant contends that it is in full compliance With all discovery. DefendanéPlaintiff disputes that the initial and fiu'ther responses of phénéffdefendant are code complaint, and requests ruling on the motion based on responses as of date of filing the motion. Trial setting conference is set on November 23, 2021. In order to move discovery to completion, the court Will issue ruling on the motion t0 compel, and enter orders With respect t0 the supplemental responses. ORDER 1. Form Interrogatories, set n0. one (”F1”) FI nos. 12.1, 12.3, 12.6, and 12.7. The obj ections of attorney-client privilege, attorney work product, expert opinion, and expert work product are OVERRULED. Further, the court finds that responses are incomplete and/or evasive, and do not comply with the requirements 0f the Code 0f Civil Procedure. Plaintiff’ s motion to compel is GRANTED. FI n0. 15. 1. N0 response was served by defendant. Plaintiff’ s motion to compel is GRANTED and obj ections are waived. 355\3860843.-L3860873,2 - 3 - [PROPOSED] ORDER ON PLAINTIFF’S MOTION TO COMPEL FURTHER RESPONSES. .. 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 HOPKINS 8: CARLEY ATTORNEYS AT LAW SAN 105E OPALO AL‘ro 2. Special Interrogatories, set no. one (“SI”) SI no. 3. The response is incomplete and not code compliant. Motion t0 compel is GRANTED. SI n0. 5, 6, 7, and 8. Defendant’s objection t0 each SI regarding expert opinion is OVERRULED. The response to each SI is evasive, is not responsive t0 the SI and is not code compliant. Motion t0 compel is GRANTED. SI no. 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, and 32. The obj ections in the response to each SI are QXLE-RRRULE-DOVERRULED. The response to each SI is evasive, is not responsive to the SI and is not code compliant. Motion t0 compel is GRANTED. 3. Request for production 0f documents set one (“RPD 1”) RPD 1 n0. 2. The obj ections 0f attorney-client privilege and attorney work product are OVERRULED. The response and amended response t0 the request are incomplete, evasive, are not responsive to the request and are not code compliant. Motion to compel is GRANTED. RPD 1 n0. 3. The obj ections asserted t0 this request are OVERRULED. The response and amended response to the request are incomplete, evasive, are not responsive to the request and are not code compliant. Motion to compel is GRANTED. RPD 1 n0. 9. The obj ections asserted t0 this request are OVERRULED. The response and amended response to the request are incomplete, evasive, are not responsive t0 the request and are not code compliant. Motion to compel is GRANTED. 4. Request for production of documents set two (“RPD 2”) RPD 2 n0. 13. The obj ections asserted t0 this request are OVERRULED. The response t0 the request is incomplete and is not code compliant. Motion to compel is GRANTED. 3559869843438608732 _ 4 _ [PROPOSED] ORDER ON PLAINTIFF’S MOTION TO COMPEL FURTHER RESPONSES. .. 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 HOPKINS 8: CARLEY ATTORNEYS AT LAW SAN 105E OPALO ALTO RPD 2 n0. 14. The obj ections asserted t0 this request are OVERRULED. Defendant does not refute plaintiff’ s assertion that defendant admits there are further documents responsive to the request, that defendant agreed t0 produce the additional documents, and that the additional documents have not been produced as 0f the date of the motion t0 compel. The response t0 the request is incomplete and is not code compliant. Motion to compel is GRANTED. RPD 2 nos. 15 and 16. The investigation 0f defendant’s insurer(s) may have been at the direction 0f ph'mti-ffdefendant’s attorney, and may include privileged communications between pl-aim'rffdefendant and pLaim'rEfdefendant’s counsel and/or attorney work product. That said, the response t0 each request is incomplete and not code compliant. The motion t0 compel is GRANTED. If any documents are considered protected from disclosure by the attorney-client privilege 0r attorney work product doctrine, defendant shall provide in the verified response a privilege 10g with sufficient information to identify the document and basis for exercise 0f the privilege 0r doctrine. RPD 2 nos. 17 and 18. Defendant’s verified response t0 each request states that the documents identified in the response are the “. . .only potential responsive materials in responding party’s possession, custody and control. . .” The response is code compliant, and the motion t0 compel is DENIED. W 5. Request for production 0f documents. set three, nos. 19-27. N0 responses were served by defendant. Motion to compel is GRANTED and obj ections are waived. 6. Orders for further responses The parties shall meet and confer forthwith t0 determine whether defendant’s supplemental responses served on September 21, 2021 are in compliance with the above rulings. If a supplemental response is agreed by the parties as conforming t0 court order, a further response Will not be required, and will be deemed to have been made without obj ections (except 3559869843438608732 - 5 - [PROPOSED] ORDER ON PLAINTIFF’S MOTION TO COMPEL FURTHER RESPONSES. .. 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 HOPKINS 8: CARLEY ATTORNEYS AT LAW SAN 105E OPALO ALTO as to privilege 10g in RPD 2 nos. 15 and 16). If the parties d0 not agree that a supplemental response is in compliance with the above rulings, then defendant shall serve a further verified response (and produce responsive documents to the request for production of documents) Without objections (except as to a privilege 10g in RPD 2 nos. 15 and 16) on or before November 5, 2021. The parties are further ordered t0 Informal Discovery Conference (“IDC”) with a discovery facilitator, Which shall take place after meet and confer, to resolve issues that may remain With defendant’s further responses, before filing additional discovery motions 0r possible appointment 0f a discovery referee. Stipulations t0 extend time t0 complete the process, if any, shall be in writing signed by counsel. The court’s facilitator Will inform the parties by email of the designated discovery facilitator, and the parties shall promptly cooperate and comply with all reasonable requests 0f the discovery facilitator. It is the expectation of the court that parties and counsel Will timely participate in good faith with the goal of promptly resolving discovery issues, and serving code compliant responses and responsive documents before the trial setting conference. 7. Expert Witness fees and costs for cancelled test. The parties stipulated t0 a protocol for forensic, scientific testing of the subject Honeywell filter which was in the possession 0f defendant’s insurer in Connecticut. This included transport of the filter fiom Connecticut to defendant’s consultant, and from the consultant to a testing facility in Anaheim, CA, followed by transport t0 a second facility in Hayward, CA. One expert of plaintiff traveled from Southern California t0 the Hayward location. However, at the time scheduled for the testing, the appearing experts were informed that the filter had not been transferred from Anaheim. DefendafitPlaintiff incurred $6,468 in expert fees and costs for the cancelled testing. The dispute is which party is responsible for payment 0f the fees and costs. Defendant does not contest plaintiff s assertions about chain 0f possession 0f the filter being with defendant’s insurer in Connecticut, and with defendant’s consultant in Anaheim. Defendant does not dispute the assertions that defendant exclusively made the arrangements and logistics for the inspection and testing 0f the filter, including designation 0f testing facilities. Instead, defendant asserts that each party was informed of the location, date and time 0f 3559860843438608732 - 6 - [PROPOSED] ORDER ON PLAINTIFF’S MOTION TO COMPEL FURTHER RESPONSES. .. 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 HOPKINS 8: CARLEY ATTORNEYS AT LAW SAN 105E OPALO ALTO the inspection, and therefore, each party had equal obligation to confirm in advance that the filter was transferred t0 Hayward for the scheduled testing. Plaintiff” s failure to confirm was the reason its experts appeared at the testing site for the testing that could not take place. Defendant’s argument is not persuasive. Defendant’s consultant had possession 0f the filter, which imputes custody, control and superior access t0 information t0 defendant. It also infers an obligation of defendant (and ability) to direct its consultant t0 transfer the filter in time for the testing where experts had arranged t0 appear 0n a specific date and time. If there was a problem, defendant should have informed plaintiff in time to notify its experts. This was not done and no explanation is provided. Under these circumstances, it is the obligation of defendant, not plaintiff, to confirm timely arrival 0f the filter at the facility. The amount claimed for reimbursement for expert fees and costs is $5,185.59 for Vollmer Gray and $1,282.50 for Shepherd Services, for a total $6,468, as stated in plaintiff’s counsel’s declaration and evidenced by invoices. Defendant does not dispute plaintiff” s evidence of the amount incurred for the experts appearing at the cancelled inspection. Therefore, defendant is ordered t0 reimburse plaintiff’ s attorneys for the expert’s fees and costs in the amount 0f $6,468, payable 0n 0r before November 5, 2021. 8. Sanctions. 3558860843438608732 - 7 - [PROPOSED] ORDER ON PLAINTIFF’S MOTION TO COMPEL FURTHER RESPONSES. .. 28 HOPKINS 8: CARLEY ATTORNEYS AT LAW SAN 105E o PALo ALTO Defendant contends! among other things! that Elaintiff’ s notices of motion herein did not comglg With the reguirements of Code of Civil Procedure section 2023.040. Plaintiff contends it substantial]; comglied with the notice reguirements and there was n0 Qrejudice to defendant. In the alternative; Qlaintiff has reguested leave of Court t0 re-notice the motion so that its reguest for sanctions mag be heard on the merits. Plaintiff” s reguest for leave of Court to re-notice its reguest for sanctions against defendant is granted. Plaintiff’ s reguest for discoveg sanctions is continued to November 18! 2021, at 9:00 am“ subject t0 plaintiff re-noticing the motion for sanctions to comglg With Code of Civil Procedure section 2023.040. No further briefing 0n the issue of discoveg sanctions shall be filed, but filrther arguments mag be Qresented at the continued hearing. 355\386084%.-1-3860873.2 - 8 - [PROPOSED] ORDER ON PLAINTIFF’S MOTION TO COMPEL FURTHER RESPONSES. .. 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 HOPKINS 8: CARLEY ATTORNEYS AT LAW SAN 105E OPALO ALTO 9. The court has set further hearing 0n the matter for November 18, 2021 at 9:00 am. in Department 2 0f the above-entitled court. Plaintiff shall serve an amended notice 0f this hearing. IT IS SO ORDERED. Approved as to form: Sean Moriarty IT IS SO ORDERED: Dated: HON. DREW TAKAICHI JUDGE OF THE SUPERIOR COURT 355\3860843.-L3860873,2 - 9 - [PROPOSED] ORDER ON PLAINTIFF’S MOTION TO COMPEL FURTHER RESPONSES. .. Emails between the Parties Mary Anne Rojas From: Richard McDonald Sent: Wednesday, October 13, 2021 11:33 AM To: Sean Moriarty Cc: Mary Anne Rojas; Carmelita Ong; Dennis Moriarty Subject: Re: A-1 Trading v. US TelePacific (Case No 19CV349010)- Proposed Order On MTC Sean |wi|| include our emails with your requested changes in my submittal to the Court. Isent you an email to this effect. Richard Sent from my iPhone On Oct 13, 2021, at 11:12 AM, Sean Moriarty wrote: Richard, lam on a quick break from first of two depositions of today. Please confirm that my emails to you regarding my requested changes to the proposed order will be provided to the judge. Thanks. Sean Moriarty CESARI, WERNER, & MORIARTY 75 Southgate Ave. Daly City, CA 94015 (650) 991-5134 (fax) (650) 991-5126, Ext. 15 (phone) THIS MESSAGE IS INTENDED FOR THE INDIVIDUAL OR ENTITY TO WHICH IT IS ADDRESSED, AND MAY CONTAIN INFORMATION THAT IS PRIVILEGED, CONFIDENTIAL, AND EXEMPT FROM DISCLOSURE UNDER APPLICABLE LAW. IF THE READER OF THIS MESSAGE IS NOT THE INTENDED RECIPIENT, CONTACT US IMMEDIATELY AT ABOVE EMAIL ADDRESS AND BE REMINDED THAT ANY DISSEMINATION, DISTRIBUTION, 0R COPYING OF THIS COMMUNICATION IS STRICTLY PROHIBITED. THANK YOU. From: Richard McDonald Sent: Wednesday, October 13, 2021 10:01 AM To: Sean Moriarty Cc: Mary Anne Rojas ; Carmelita Ong ; Dennis Moriarty Subject: RE: A-l Trading v. US TeIePacific (Case No 19CV349010)- Proposed Order On MTC Received. Thank you for the clarification. We do not agree with your contention that the Court continued the motion to include further consideration of plaintiff’s request for expert witness fees incurred due to the cancelled testing event. We understood the Court to have made a final decision 0n that issue. We understood the Court to have continued the motion, subject to re-notice, only on the issue of sanctions relating to defendant’s discovery responses and the arguments made in the current briefing (and at the continued hearing) as to why plaintiff contends such sanctions are warranted. Thus, we do not agree to your proposed changes for pages 6:15-8:26 relating to sanctions. With regard to the proposed language for 4:12 relating to defendant’s responses t0 the 3 sets of document requests, we do not agree to your proposed inclusion as it is contrary to the plain language of the Court’s tentative ruling, and nothing about the Court’s statements from the bench suggested a change in the Court’s thinking. The tentative ruling plainly states that defendant’s objections to many of the requests in RPD 1 and 2 are OVERRULED, and the motion to compel was GRANTED as to a|| but RPD 17 and 18. To the extent your work product objection was preserved for RPD 15 and 16, we will meet and confer as to your supplemental responses and whether they comply with the Court’s ruling on a privilege log as to those two (and only those 2) requests. Thus, your proposed language for 4:12 is not in alignment with the plain language of the tentative ruling and we will not include it in plaintiff’s proposed order. We can now meet and confer about whether defendant’s supplemental responses to RPD 1 and 2, which continue to assert objections that have been overruled, need to be further modified. As to RPD 3, all objections have been waived, as was confirmed both in the tentative and from the bench. We will submit our proposed form of order, along with this email exchange, to the Court today. My transmittal to the Court will read as follows: Judge Takaichi Per your instructions, | prepared a form of order for the referenced case (Line 9 on 9am L&M calendar for Oct 7) and your tentative ruling thereon. We submitted our proposed order to defendant’s counsel, who expressed objections as reflected in counsel’s several email exchanges. Mr. Moriarty asked that we submit our emails about my proposed order to you, and | confirmed with him that I would do so. Having said that, attached please find a clean and redline of my proposed form of order, which is true to your tentative ruling, subject only to the editorial corrections that you confirmed from the bench, and how | understood the Court’s intent regarding a continued hearing on the issue of discovery sanctions. Ialso include counsel’s emails about Mr. Moriarty’s requested changes, as to which | did not include in the attached. We leave the matter for your final determination and order. Respectfully submitted, Richard McDonald Thank you Sean. Iwill be in touch to further meet and confer about defendant’s supplemental responses to plaintiff’s discovery requests. Regards, Richard Richard McDonald Shareholder Hopkins & Carley | A Law Corporation San Jose | Palo Alto 70 South First Street | San Jose, CA 95113 Direct: 408.299.1482 | Mobile: 408.896.0198 Fax: 408.938.6245 RMcDonald@hopkinscarle¥.com hopkinscarleymm From: Sean Moriarty Sent: Wednesday, October 13, 2021 7:54 AM To: Richard McDonald Cc: Mary Anne Rojas ; Carmelita Ong ; Dennis Moriarty Subject: A-1 Trading v. US TelePacific- Proposed Order On MTC Mr. McDonald, In response to your below email, | have highlighted our requested changes to your proposed red-Iined order in my initial email to you below. (I am not requesting that my comments be part of the proposed order, they are submitted to aid in our understanding of what transpired at the hearing inclusive of our review of the recorded transcript). If you do not incorporate our requested changes into the proposed red-lined order, we again request that the court be provided a copy of our email exchange in this regard. Please confirm your receipt of this, and please provide your written response. Thank you in advance. Sean Moriarty CESARI, WERNER, & MORIARTY 75 Southgate Ave. Daly City, CA 94015 (650) 991-5134 (fax) (650) 991-5126, Ext. 15 (phone) THIS MESSAGE IS INTENDED FOR THE INDIVIDUAL OR ENTITY T0 WHICH IT IS ADDRESSED, AND MAY CONTAIN INFORMATION THAT IS PRIVILEGED, CONFIDENTIAL, AND EXEMPT FROM DISCLOSURE UNDER APPLICABLE LAW. IF THE READER OF THIS MESSAGE IS NOT THE INTENDED RECIPIENT, CONTACT US IMMEDIATELY AT ABOVE EMAIL ADDRESS AND BE REMINDED THAT ANY DISSEMINATION, DISTRIBUTION, OR COPYING OF THIS COMMUNICATION IS STRICTLY PROHIBITED. THANK YOU. From: Richard McDonald Sent: Tuesday, October 12, 2021 11:38 AM To: Sean Moriarty Cc: Mary Anne Rojas ; Carmelita Ong ; Dennis Moriarty Subject: RE: A-l Trading v. US TelePacific- Proposed Order On MTC Sean Iacknowledge receipt of your commentary and arguments below regarding our proposed order, butl am not clear what specific language you want changed, and what exactly would you would want the order t0 say. Idisagree with many of your comments about what transpired at the hearing, and dispute your further arguments, as to which the Court indicated quite plainly that any further argument would only be made at the continued hearing and not in any further filings. Can you please send me a redline with your proposed changes so I can consider any requested changes? And as to your offer of settlement on the sanctions issue (to pay for the expert fees awarded and waive the approx.. 65k balance), as | mentioned in an earlier email plaintiff declines that offer. There is no 3 reason orjustification to include your settlement offer in an email to the judge. Iwould still submit the email as you requested, but then | would have to add my objections and would much prefer not to burden the Court with such matters. Let’s please confine this email exchange to the proposed language in the order. | like my proposed language, but if you want to make changes please be specific. Thank you, Richard Richard McDonald Shareholder Hopkins & Carley | A Law Corporation San Jose | Palo Alto 70 South First Street | San Jose, CA 95113 Direct: 408.299.1482 | Mobile: 408.896.0198 Fax: 408.938.6245 RMcDonaId@hopkinscarley.com hopkinscarleyLom From: Sean Moriarty Sent: Tuesday, October 12, 2021 10:28 AM To: Richard McDonald Cc: Mary Anne Rojas ; Carmelita Ong ; Dennis Moriarty Subject: A-l Trading v. US TelePacific- Proposed Order On MTC Mr. McDonald, The following are defendant’s proposed changes to your proposed red-lined order; if you do not incorporate these proposed changes into the body of the proposed red-Iined order, we request that you please submit a copy of this email to the court for the court’s consideration. In plaintiff’s moving papers, plaintiff lists category (2) as Monetary Sanctions; category (2) Monetary Sanctions is inclusive of (alleged) discovery abuse, and cancelled Testing Event. The Court, at the hearing, as reflected in the hearing transcript, tabled Monetary Sanctions until the further hearing. Defendant requests that any language related to category (2) of your motion entitled Monetary Sanctions, inclusive of (alleged) discovery abuse, and cancelled Testing Event, be removed from your proposed order other than to state what occurred procedurally in that regard as repeated below and the fact that the Court tabled the issue until the further hearing date. Defendant therefore requests that from page 6, line 15, of your proposed order, entitled: ”7. Expert Witness fees and costs for cancelled test” to page 8 line 26 of your proposed order, inclusive of both section ”7. Expert Witness fees and costs for cancelled test,” and Section ”8. Sanctions,” be stricken from the proposed order. (As a result of the court tabling the issue of Monetary Sanctions until the further hearing, defendant did not point out to the court any specifics related to this issue, inclusive of: plaintiff being part of the agreements related to the setting up of the inspections in Anaheim, as well as, the inspection in Hayward, plaintiff’s expert being the only expert personally present for the examination/inspection in Anaheim, and matters voiced at the Anaheim inspection. As stated to you, Mr. McDonald, in keeping with the tentative ruling on this point, if you are willing to accept the amount listed in the tentative of$ 6,468, and take the continued hearing off calendar, we will pay to you that amount as documented in attachments to your declaration). The Following excerpts from the hearing transcript are provided to aid on this issue. On Page 2, at the end of the first paragraph, line 10, with regard to the issue of Monetary Sanctions for (alleged) discovery abuse and cancelled Testing Event, the Court stated at motion hearing the following as reflected in the transcript, So 2023.040 does provide a requirement of contents of a noticed motion where sanctions are sought. The language of ”shall" is mandatory. This includes notice of the sanctions sought and the persons for which sanctions are sought. Here, the notice includes the specific description of the sanctions sought, but it does not include identification of the parties for whom sanctions are being sought against. So that is not a strict compliance with the statutes. While the declaration and the points and authorities make it abundantly clear that the sanction is sought against the defendant, the notice, nonetheless, is not in strict technical compliance. That said, in the interest ofjustice and to further the policy of the law to decide matters on merit as opposed to procedural matters, the Court is willing to grant a continuance to afford the plaintiff an opportunity to file an amended notice of hearing to specify the sanctions, but importantly identifying the particular parties, whether that’s Defendant, counsel for Defendant, or both. And |’|| continue the motion for that purpose subject to the defendant, you know, requiring it. Otherwise, if defendant is willing to waive that technical deficiency, I’m prepared to continue your argument on the issue 0f sanctions at this point. It really, will be up to you, Mr. Moriarty, if you want to have the arguments heard today or at a continued date that |’|| set here momentarily. The Court when on to state as reflected in the transcript, page 19, 3-6: If you’re unwilling to waive to keep that in the notice of hearing, then | would set a continued hearing date and | would conclude today’s hearing at this time. The Court further stated as reflected in the transcript, page 20:4-10: Iwould be continuing today’s hearing to a future date and afford the opportunity of plaintiff’s counsel to file an amended notice of hearing addressing those technical deficiencies in the notice of hearing. And then | would hear all the arguments and merits on sanctions at that later hearing date. Defendant voiced on the record that defendant could not waive, page 20:19-24. The court stated that arguments regarding sanctions and the like are tabled for future date, page 23:1-4. As stated above, defendant requests that all references to Monetary Sanctions, inclusive of Section ”7. Expert Witness fees and costs for cancelled test,” starting on page 6, line 15, of the (proposed) red-lined order through the end of Section ”8. Sanctions, that ends on page 8 line 26,” be stricken from the [Proposed] red-Iined order based on above. 5 Again, as stated to you, Mr. McDonald, in keeping with the tentative ruling on this point, if you are willing to accept the amount listed in the tentative of$ 6,468, and take the continued hearing off calendar, we will pay t0 you the amount claimed of $6,468.00. Defendant further requests that you add the following to the tentative ruling related to the Work Product Documents that have been identified. Based on the exchange with the court and parties at the hearing, with regard to materials that defendant has identified as being protected by the Work Product Privilege, if the parties cannot reach a consensus, this issue will be brought before the discovery facilitator. The Court explained, as recorded in the transcript at Page 28, lines 17-18, that there is no waiver of objections with respect to Request for Production of Documents, Set 1 and Set 2, but there is with respect to Set No. 3. The court further stated, as recorded in the transcript at Page 28, lines 20 - 23, |’|| leave it to you to meet and confer and perhaps with the discovery facilitator to sort out which objections apply to which Request for Production of Documents. As stated by Mr. McDonald in the Recorded Transcript, Page 27, Line 24: These are all matter that may be brought to the facilitator. And, as stated by the Court on Page 28, Line 17-24, Now, there is no waiver of objections with respect to Request For Production of Documents, Set 1 and 2, but there is with respect to Set No. 3. And |’|| leave it to you in meet and confer and perhaps with the discovery facilitator to sort out which objections apply to which Request for Production of Documents. But since they apply to Set No. 3, those objections are waived. Based on above, in the proposed red-Iined order, prior to Sections 3, 4, and 5 of the proposed red line order, related to the requests for production of documents 1, 2, and 3, starting on page 4, line 12, defendant requests that the following be added to the proposed red-line order: With regard to Request for production of documents Set one through three, there is no waiver of objections with respect to Request for Production of Documents, Set 1 and Set 2; the Court will leave it to the parties to meet and confer and perhaps with the discovery facilitator to sort out which objections apply to which Request for Production of Documents. Please write rega rding your response to above. Thank you. Sean Moriarty CESARI, WERNER, & MORIARTY 75 Southgate Ave. Daly City, CA 94015 (650) 991-5134 (fax) (650) 991-5126, Ext. 15 (phone) THIS MESSAGE IS INTENDED FOR THE INDIVIDUAL OR ENTITY TO WHICH IT IS ADDRESSED, AND MAY CONTAIN INFORMATION THAT IS PRIVILEGED, CONFIDENTIAL, AND EXEMPT FROM DISCLOSURE UNDER APPLICABLE LAW. IF THE READER OF THIS MESSAGE IS NOT THE INTENDED RECIPIENT, CONTACT US IMMEDIATELY AT ABOVE EMAIL ADDRESS AND BE REMINDED THAT ANY DISSEMINATION, DISTRIBUTION, OR COPYING OF THIS COMMUNICATION IS STRICTLY PROHIBITED. THANK YOU. From: Richard McDonald Sent: Monday, October 11, 2021 10:50 AM To: Sean Moriarty Cc: Mary Anne Rojas Subject: A-l Trading v. US TelePacific- Proposed Order On MTC Sean Attached for your approval as to form is a clean and redline proposed order on plaintiff’s motion to compel, prepared at Judge Takaichi’s direction. The order conforms to the tentative, as corrected on the record, and revises the discussion of sanctions in the tentative to reflect the Judge’s decision from the bench to continue the hearing. Please review the proposed order and if you approve please sign where shown and return it to our office and we will submit it to the Court. If you have any questions please do not hesitate to contact me. Thanks, Richard Richard McDonald Shareholder Hopkins & Carley | A Law Corporation San Jose | Palo Alto 70 South First Street | San Jose, CA 95113 Direct: 408.299.1482 | Mobile: 408.896.0198 Fax: 408.938.6245 RMcDonald@hopkinscarley.com hopkinscarleymm From: Amy Fall Sent: Monday, October 11, 2021 8:49 AM To: Richard McDonald Cc: Mary Anne Rojas ; Word Processing Subject: 36232.001 - 2d Amended NOM & Proposed Order Hi Richard, Your revisions were made to new versions 2 of the two documents, and clean v25 and redlines showing your revisions are attached. Please review this project to confirm it is as you intended. Thanks, Amy Fall Word Processing Direct: 408.299.1379 afall@hopkinscarley.com Regular Word Processing Hours: 7:00am-6:00pm - Monday-Friday Any tax advice contained in this correspondence (including any attachments) is not intended or written 7 to be used, and cannot be used, for the purpose of (i) avoiding tax-related penalties under federal, state or local tax law or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein. This email and any attachments thereto may contain private, confidential, and privileged material for the sole use of the intended recipient. Any review, copying, or distribution of this email (or any attachments thereto) by others is strictly prohibited. If you are not the intended recipient, please contact the sender immediately and permanently delete the original and any copies of this email and any attachments thereto. 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