Reply In Support of Defendants Motion For A Protective Order And For Sanctions Against Plaintiff Stacey Winkelmann

Reply

Cal. Super. - 6th Dist.December 30, 2019

ZA CK S, F R E E D M A N & P A T T E R S O N , PC 23 5 M O N T G O M E R Y ST RE ET , SU IT E 40 0 S A N F R A N C I S C O , C A L I F O R N I A 94 10 4 W N O O 0 J O N Wn 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 19CV361047 Santa Clara - Civil ANDREW M. ZACKS (SBN 147794) EMILY L. BROUGH (SBN 284943) ZACKS, FREEDMAN & PATTERSON, PC 235 Montgomery Street, Suite 400 San Francisco, CA 94104 Tel: (415) 956-8100 Fax: (415) 288-9755 az@zfplaw.com emily@zfplaw.com Attorneys for Defendant THE NICHOLSON FAMILY PARTNERSHIP Electronically Filed by Superior Court of CA, County of Santa Clara, on 5/26/2020 3:41 PM Reviewed By: R. Nguyen Case #19CV361047 Envelope: 4378447 SUPERIOR COURT - STATE OF CALIFORNIA COUNTY OF SANTA CLARA MHC OPERATING LIMITED PARTNERSHIP, STACEY WINKELMANN, COUNTRYPLACE MORTGAGE, LTD., and ECHO FINANCING, LLC Plaintiffs, VS. THE NICHOLSON FAMILY PARTNERSHIP, Defendant. Case No.: 19CV361047 REPLY IN SUPPORT OF DEFENDANT’S MOTION FOR A PROTECTIVE ORDER AND FOR SANCTIONS AGAINST PLAINTIFF STACEY WINKELMANN Date: June 2, 2020 Time: 9:00 a.m. Location: 191 N. First Street San Jose, California, 95113 Department: 6 Judge: Hon. Maureen A. Folan R. Nguyen 1 REPLY IN SUPPORT OF DEFENDANT’S MOTION FOR A PROTECTIVE ORDER AND FOR SANCTIONS ZA CK S, F R E E D M A N & P A T T E R S O N , PC 23 5 M O N T G O M E R Y ST RE ET , SU IT E 40 0 S A N F R A N C I S C O , C A L I F O R N I A 94 10 4 W N O O 0 J O N Wn 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 II. III. TABLE OF CONTENTS . Winkelmann Fails to Defeat TNFP’s Showing of Good Cause for a Protective Order.6 . Winkelmann Fails to Explain How TNFP’s Position on MHC’s Duties Under the Ground Leases Would Assist Her Opposition to TNFP’s Motion to Compel Arbitration, and Her Claims are Not “Severable” ............ccooovvviiiiiieeieciiieeeceeeee ce. 8 . The Discovery is Unlikely to Lead to Admissible Evidence if Winkelmann’s Litigation is Stayed Because the Arbitration will Resolve MHC and TNFP’s Dispute Tider five Gronti LENO, usssssnsssssmssonsssssssus o s: 55mm sims si mesma 9 . There is Good Cause to Stay Discovery Until Winkelmann’s Claims Against TNFP ATE RESOLVE... eee eee eee eee eae eae eee ae ae se ae ene aeeenenenenen 11 . TNFP Brought This Motion With Substantial Justification and Thus Even If the Court Denies it Sanctions Are Not Warranted Against TNFP ...........ccccooviiiiiinnnen. 13 . Sanctions Against Winkelmann are Warranted Because She Cannot Oppose This Motion With Substantial JUSTITICAION ........ueeeee eee eee eee ens 13 CONC LTBTOIMN cus co unumsmansnsss svunmomssssnnmes sion mses a5 5355509655 06545 55455 005853 53555 S5S HSH R095 BUS SHTAEHHTS 14 2 REPLY IN SUPPORT OF DEFENDANT’S MOTION FOR A PROTECTIVE ORDER AND FOR SANCTIONS ZA CK S, F R E E D M A N & P A T T E R S O N , PC 23 5 M O N T G O M E R Y ST RE ET , SU IT E 40 0 S A N F R A N C I S C O , C A L I F O R N I A 94 10 4 W N O O 0 J O N Wn 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TABLE OF AUTHORITIES Cases Acquire II, Ltd. v. Colton Real Estate Group (2013) 213 Cal. App.4th 959......ccevevirinininennne. 8 Berman: v. Health Net (2000) BO Cal App4th 1339 susssmmmammsmmssmsnssasnssaswsssaswsssaswessss 13 Bos Material Handling, Inc. v. Crown Controls Corp. (1982) 137 Cal. App. 3d 99................... 8 Budget Finance Plan v. Super. Ct. (McDowell) (1973) 34 Cal.App.3d 794......ccoovvvivinininnn. 11 Correctional Peace Officers Assn. v. State of California (2006) 142 Cal. App.4th 198 .............. 9 Environmental Defense Project of Sierra County v. County of Sierra (2008) 158 Cal. APPA 877 cetera estes 12 Jones v. Feichmeir (1949) 95 Cal. APP.2d 341 ..ocuoouiiiiiiiieeeeeeeeeeee 11 Kah v. Waliens T1977) 33 Cal AppAth 1522 cusses 10,11, 12 Laswell v. AG Seal Beach, LLC (2010) 189 Cal.App.4th 1399 ......cccooiiiviiiieeeeeeeeen 8 Lewis v. Fletcher Jones Motor Cars, Inc. (2012) 205 Cal. App.4th 436 .......ccovivvvininieienene 13 Marlin v. Aimco Venezia, LLC (2007) 154 Cal. App.4th 154... 11 Mattco Forge, Inc. v. Arthur Young & Co. (1990) 223 Cal. App.3d 1429 ....ccooiviviririiene 11 Mission Beverage Co. v. Pabst Brewing Co., LLC (2017) 15 Cal. App.5th 686............ccceu...... 10 Mission Viejo Emergency Med. Assocs. v. Beta Healthcare Grp. (2011) 197 Cal.App.4th 1146.7 Newby v, Alto Riviera Apartments (1976) 60 Cal. APP.30 288 ..uusmssssmssssmssssnssessrssssspssassassassosss 11 Poeschl v. Sup.Ct. (1964) 229 CA2A 383 eee 9 Save Open Space Santa Monica Mountains v. Superior Court (2000) 84 Cal.App.4th 235 ..... IZ Selby Realty Co. v. City of San Buenaventura (1973) 10 Cal.3d 110.....ccccoeevirinininiienn 12 Stadish v. Sup.Ct. (1999) 71 Cal. APRME [130 ssssssssssnssannnnnnsnnnnnssaannnssnns 6 SunLine Transit Agency v. Amalgamated Transit Union, Local 1277 (2010) 189 CalLAPP.Ath 202... 10 Union Mut. Life Ins. Co. v. Superior Court (1978) 80 Cal.App.3d 1 ...cccoveveieiniiiiee 3,11 Waters v. Superior Court of Los Angeles Cty. (1962) 58 Cal. 2d 885......cccevvevvireviniieeeen, 6 Wellpoint Health Networks, Inc. v. Superior Court (1997) 59 Cal.App.4th 110 ....................... 12 Wilson & Wilson v. City Council of Redwood City (2011) 191 Cal. App.4th 1559 .................... 12 3 REPLY IN SUPPORT OF DEFENDANT’S MOTION FOR A PROTECTIVE ORDER AND FOR SANCTIONS ZA CK S, F R E E D M A N & P A T T E R S O N , PC 23 5 M O N T G O M E R Y ST RE ET , SU IT E 40 0 S A N F R A N C I S C O , C A L I F O R N I A 94 10 4 W N O O 0 J O N Wn 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Statutes Cal. Code Civ. Proc. § 1281.2. cece eres erases seers sees eae ease ne ene 5,8 Cal. Code Civ. Proc. § 1281.2(C) cuerieiuierieeiieiiereeieeieete st ers eee ete sa ease a sree sae esses ae ess re esse sa ennas 9 Cal. Code Civ. Proc. § 1281.4. ...ooeieeeeeeeeeeetete etcetera ease eases vee ease n eens 7:9 CIV. COE § TOB.56.....e cies 10, 11,12 Civ Code: § 798 SB0usmwmsmummssmwssssumnsnenssmnmn es o s mens ssn gos ss s gem as ssnsnaemsass 10, 11,12 CIV. COE § 798.57 eects 10, 11,12 Other Authorities San Jose Mobilehome Conversion Ordinance § 20.180.600.............ccceeierrieieveerieieeieeeere n 12 4 REPLY IN SUPPORT OF DEFENDANT’S MOTION FOR A PROTECTIVE ORDER AND FOR SANCTIONS ZA CK S, F R E E D M A N & P A T T E R S O N , PC 23 5 M O N T G O M E R Y ST RE ET , SU IT E 40 0 S A N F R A N C I S C O , C A L I F O R N I A 94 10 4 W N O O 0 J O N Wn 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 LI. INTRODUCTION Winkelmann’s opposition fails to overcome TNFP’s showing of good cause for the requested brief extension of time to respond to her discovery. Winkelmann’s discovery seeks information about TNFP’s position on plaintiff MHC Operating Limited Partnership’s (“MHC”) duties under the leases at issue here. She claims that she needs this discovery to “respond” to TNFP’s motion to compel arbitration and stay litigation. But Winkelmann does not cite any legal authority showing sow such information would assist her in opposing the motion to compel arbitration and stay litigation. Nor could she. TNFP’s right to arbitration and stay of this litigation arises out of the leases at issue and Civ. Code of Proc. sections 1281.2 and 1281.4." Its legal “position” in the underlying dispute has no bearing on whether it is entitled to compel arbitration and stay this litigation. Put another way, Winkelmann’s requested discovery is irrelevant to her opposition to TNFP’s motion to compel arbitration. Thus, no prejudice would have resulted to Winkelmann by granting TNFP a brief extension of time to respond to the discovery. Rather, a grant of such an extension would uphold the strong policy in favor of a party’s contractual right to arbitration, and relieve TNFP the burden and expense of forcing it to incur legal fees responding to discovery in an action it is entitled to arbitrate. The Court should additionally extend this stay of discovery until after a pleading challenge to Winkelmann’s complaint against TNFP is resolved, given its plain facial defects. The Court has wide discretion to control the parties’ discovery proceedings, and because the defects on Winkelmann’s complaint are incurable, there is good cause to issue a protective order postponing her discovery until Winkelmann can show she has any viable claim against TNFP. Finally, Winkelmann, a nonsignatory to the arbitration agreement, admits she is attempting to derail TNFP’s right to arbitrate this matter. Winkelmann’s bad faith tactics in this litigation, coupled with her inability to justify opposition to this motion, warrant the imposition of sanctions against her. The Court should therefore grant this motion. // // I All code citations hereafter shall be to the Civil Code of Procedure, unless otherwise noted. 5 REPLY IN SUPPORT OF DEFENDANT’S MOTION FOR A PROTECTIVE ORDER AND FOR SANCTIONS ZA CK S, F R E E D M A N & P A T T E R S O N , PC 23 5 M O N T G O M E R Y ST RE ET , SU IT E 40 0 S A N F R A N C I S C O , C A L I F O R N I A 94 10 4 W N O O 0 J O N Wn 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 II. REPLY A. Winkelmann Fails to Defeat TNFP’s Showing of Good Cause for a Protective Order. A party seeking a protective order must show good cause for whatever relief is sought. (Stadish v. Sup.Ct. (1999) 71 Cal. App.4th 1130, 1145.) “The concept of good cause should not be enshrined in legal formalism; it calls for a factual exposition of a reasonable ground for the sought order.” (Waters v. Superior Court of Los Angeles Cty. (1962) 58 Cal. 2d 885, 893.) Upon such good cause shown, the court may make any order that justice requires to protect the party against undue burden, including extending the time in which to respond to the discovery. (CCP § 2031.060(b)(2) [court may extend time in which to respond to request for production]; 2025.420(b)(2) [court may order a noticed deposition to take place at a different time]; 2030.090(b)(3) [court may extend time in which to respond to interrogatories]; 2033.080(b)(3) [court may extend time in which to respond to requests for admissions].) Here, TNFP does not seek to prohibit Winkelmann’s discovery altogether, it simply requests an extension of time to respond. TNFP’s motion to compel arbitration was originally scheduled to be heard prior to the hearing on this motion on March 24, 2020. Knowing that the motion to compel was calendared for this date, Winkelmann served her written discovery on TNFP on February 2, 2020, and noticed the deposition of Bruce Nicholson on March 10, 2020. Despite TNFP requesting a continuance of the discovery of only several weeks-until after the motion to compel arbitration was heard, Winkelmann flatly refused, claiming ‘she needed the discovery to respond to TNFP’s motion.” She has never explained how such discovery would assist her in doing so. Given Winkelmann’s refusal to provide a short extension without any plausible justification, TNFP was required to file this motion. > Once the COVID-19 pandemic took hold in the Bay Area and the Court began limiting its functions to essential 2 Winkelmann bizarrely claims that TNFP “blocked” her motion to compel discovery. What in fact occurred, is Winkelmann failed to secure a hearing date with the court prior to noticing her motion, but prematurely served that notice anyway. The Court apparently refused to calendar her motion for her unilaterally chosen hearing date, and her motion is now set for August 11, 2020. TNFP has informed Winkelmann that her motion is cumulative and a waste of legal and court resources, as she can-and has-requested the same relief in her opposition to this motion, as she has in her motion to compel. 6 REPLY IN SUPPORT OF DEFENDANT’S MOTION FOR A PROTECTIVE ORDER AND FOR SANCTIONS ZA CK S, F R E E D M A N & P A T T E R S O N , PC 23 5 M O N T G O M E R Y ST RE ET , SU IT E 40 0 S A N F R A N C I S C O , C A L I F O R N I A 94 10 4 W N O O 0 J O N Wn 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 matters, the Court continued TNFP’s motion to compel arbitration to June 25, 2020-three weeks from the hearing on this motion? TNFP has shown good cause for an extension of time to respond to Winkelmann’s discovery. Given California’s strong policy in upholding a party’s contractual right to arbitration, responding to any discovery prior to this Court’s determination of TNFP’s right to arbitrate this matter-and stay Winkelmann’s litigation-would cause undue annoyance and burden. (See, Mission Viejo Emergency Med. Assocs. v. Beta Healthcare Grp. (2011) 197 Cal.App.4th 1146, 1153 [California has a strong public policy in favor of arbitration as an expeditious and cost-effective way of resolving disputes].) The policy favoring arbitration further presumes that a party is entitled to an automatic stay of litigation during the pendency of a motion to compel arbitration. (CCP § 1281.4) The Court should therefore grant one, as is requested in TNFP’s opening brief. * Further, Winkelmann was expressly added to this action as a plaintiff in an attempt to evade arbitration of this matter. While Winkelmann indignantly claims that she is “insulted” by this contention, the First Amended Complaint and her opposition readily reveal this intent. (Winkelmann Opp. p. 15:10-11; Ex. 4 9 64 to Request for Judicial Notice in Support of Motion for Protective Order (“RIN”).) Plaintiffs’ litigation tactics-adding Winkelmann as a plaintiff after TNFP met and 3 Given the continuance of TNFP’s motion to compel arbitration, TNFP requested the initial case management conference in this case, scheduled for May 5, 2020, also be continued to after TNFP’s motion to compel arbitration was heard. TNFP requested that Winkelmann and other plaintiff stipulate to this continuance, but they refused. TNFP requested this relief via its case management conference statement, as the Court was only hearing very limited ex partes during this time, and not scheduling non-essential motions. After making this request, the Court continued the case management conference from May 5, 2020 to September 9, 2020. * TNFP did not originally request a stay of the proceedings during the pendency of the motion to compel arbitration in its notice of this motion (although it argues it is entitled to one in its opening brief), because it filed this motion only two weeks prior to the original hearing date on the motion to compel, and the motion to compel was originally scheduled to be heard months prior to this motion. That is, any such request at the time would have been moot by the time this motion was heard. However, now that the Court has continued the motion to compel arbitration hearing until after this motion will be heard, it should uphold the strong policy of staying proceedings during the pendency of a motion to compel, and grant a stay of the proceeding per § 1281.4, as requested in TNFP’s opening brief. 7 REPLY IN SUPPORT OF DEFENDANT’S MOTION FOR A PROTECTIVE ORDER AND FOR SANCTIONS ZA CK S, F R E E D M A N & P A T T E R S O N , PC 23 5 M O N T G O M E R Y ST RE ET , SU IT E 40 0 S A N F R A N C I S C O , C A L I F O R N I A 94 10 4 W N O O 0 J O N Wn 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 conferred with MHC about its motion to compel arbitration-further reveal this intent.> (Ex. 1 to Brough Dec. in Support of Reply) Winkelmann cites no case endorsing Plaintiffs’ practice of adding litigants to thwart an arbitration clause. This is because case law holds precisely the opposite: “Plaintiffs cannot defeat Defendants’ contractual right to arbitration by simply joining Plaintiffs who agreed to arbitration with Plaintiffs who . . . did not agree to arbitration.” (Acquire II, Ltd. v. Colton Real Estate Group (2013) 213 Cal.App.4th 959, 975; accord Bos Material Handling, Inc. v. Crown Controls Corp. (1982) 137 Cal.App.3d 99, 112; Laswell v. AG Seal Beach, LLC (2010) 189 Cal. App.4th 1399, 1407.) Indeed, any contrary rule would subvert this state’s strong policy in favor of arbitration. The Court should not reward bad-faith litigation tactics by permitting Winkelmann to impose unnecessary costs and legal resources in TNFP prior to the issue of its right to arbitrate this matter being settled. B. Winkelmann Fails to Explain How TNFP’s Position on MHC’s Duties Under the Ground Leases Would Assist Her Opposition to TNFP’s Motion to Compel Arbitration, and Her Claims are Not “Severable.” Winkelmann’s only asserted reason for needing the discovery at issue in the next three weeks is that is that she allegedly needs discovery to “respond” to TNFP’s motion to compel arbitration, because, “TNFP has not provided any explanation of what it means by ‘encumbrance or third-party claim.” ” and she wants to ‘clarify’ TNFP’s position in this matter. (Winkelmann Opp. pp. 10-11.) But she wholly fails to explain how discovery on this issue would assist her at all in her opposition to the motion to compel arbitration and stay litigation. Nor could she, because TNFP’s position on MHC’s duties under the Ground Leases-the very dispute at issue in this case-has no bearing on its right to arbitrate this dispute and stay the action. Likewise, nor would any response to this question provide Winkelmann with a defense to TNFP’s motion. TNFP’s right to arbitrate this matter and stay the litigation solely arises out of §§ 1281.2 & 1281.4 and the Ground Leases, which require “any disputes, claims or controversies arising out of or relating to the Lease” to arbitration at JAMS.” (Ex. 1 (Ex. E 98) to RIN.) While there are enumerated exceptions to this right under § 1281.2(c), > In their oppositions, Plaintiffs ignore the fact that the parties had met and conferred about TNFP’s motion to compel arbitration weeks before Winkelmann was improperly joined to this action. 8 REPLY IN SUPPORT OF DEFENDANT’S MOTION FOR A PROTECTIVE ORDER AND FOR SANCTIONS ZA CK S, F R E E D M A N & P A T T E R S O N , PC 23 5 M O N T G O M E R Y ST RE ET , SU IT E 40 0 S A N F R A N C I S C O , C A L I F O R N I A 94 10 4 W N O O 0 J O N Wn 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Winkelmann does not explain how any response to this question would assist her in meeting such an exception. Nor could she. Winkelmann also makes the spurious assertion that her discovery on her claims may not be stayed under § 1281.4 because they are allegedly are “severable” as they arise out of state and local law. (Winkelmann Opp. p. 13:21-23 - 14:1-12.) But she (and all other plaintiffs) requests declaratory and injunctive relief as to MHC’s rights under the Ground Leases. (Ex. 4 435-66 to RIN.) Winkelmann cites state and local law merely as a defense as to why MHC does not have certain obligations under those leases. (See, Correctional Peace Officers Assn. v. State of California (2006) 142 Cal.App.4th 198, 207, 210 [rejecting the argument that a party “was entitled to avoid arbitration because its defense to the grievance [arising under a contract] relied on rights derived from a state statute” and thus required “statutory interpretation’].) Rather, as is apparent from her immediate service of the discovery-despite there having been a pending motion to compel arbitration on calendar-Winkelmann simply seeks an unfair advantage via her deposition, one that would permit her to depose TNFP in violation of its right to arbitrate matters that arise under the Ground Leases. (See, Poeschl v. Sup.Ct. (1964) 229 CA2d 383, 386-387 [unfair advantage found by timing of deposition justified issuance of protective order].) Winkelmann has not, and cannot, show that any prejudice would result to her if the Court grants TNFP an extension of time to respond to her discovery, until after its motion to compel is heard. TNFP’s motion to compel arbitration is three weeks from the date of the hearing on this motion. There is no trial date set in this matter and the parties’ initial case management conference is not until September 9, 2020. The Court should grant this motion to protect TNFP from the burden and expense (thousands of dollars) of responding to discovery it would not be required to respond to if its motion to compel arbitration and stay this litigation is granted. C. The Discovery is Unlikely to Lead to Admissible Evidence if Winkelmann’s Litigation is Stayed Because the Arbitration will Resolve MHC and TNFP’s Dispute Under the Ground Leases. Winkelmann claims that her discovery is relevant to this action because it would reveal TNFP position on MHC’s duties under the Ground Leases. But if TNFP’s motion to compel arbitration is 9 REPLY IN SUPPORT OF DEFENDANT’S MOTION FOR A PROTECTIVE ORDER AND FOR SANCTIONS ZA CK S, F R E E D M A N & P A T T E R S O N , PC 23 5 M O N T G O M E R Y ST RE ET , SU IT E 40 0 S A N F R A N C I S C O , C A L I F O R N I A 94 10 4 W N O O 0 J O N Wn 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 granted, and Winkelmann’s litigation its stayed until the completion of the arbitration, TNFP’s “position” on MHC’s duties under the Ground Leases will no longer be at issue given that those rights and duties will have been resolved in the arbitration-as the Ground Leases require.® That is, Winkelmann’s claims depend upon MHC’s having the duty under the Ground Leases to deliver the Property back to TNFP in the same condition as it was delivered at the commencement of the leases. (Ex. 4 to RIN.) If MHC does not have that duty-as Winkelmann argues-then Winkelmann will never experience her posited injuries. Put another way, the pending arbitration between TNFP and MHC could moot her claims. Conversely, if an arbitrator rules that MHC does have that contractual duty, then MHC must decide whether to breach that duty or comply with it. (See Mission Beverage Co. v. Pabst Brewing Co., LLC (2017) 15 Cal.App.5th 686, 707 [stating that “the concept of efficient breach of contract ... supports a rule that allows one party to a contract to breach and pay damages rather than perform™].)” Either way, Winkelmann’s discovery on TNFP’s position on MHC'’s duties under the Ground Leases will be wholly mooted if the Court grants TNFP’s motion, compels arbitration between TNFP and MHC, and stays the litigation. Thus, the Court should grant this motion and order that TNFP is not required to respond to such potentially irrelevant discovery until after it determines TNFP’s motion to compel arbitration on June 24, 2020. 1 6 Citing § 1286.2, Winkelmann makes a general complaint that the arbitration would prejudice her because the arbitrator’s award will not be “subject to review for errors of law.” (Winkelmann Opp. p. 15:10-11.) That is, Winkelmann claims there should be no arbitration because the Court may only vacate any subsequent award under the four enumerated grounds of § 1286.2. Winkelmann cites no authority supporting her novel theory of prejudice, nor could she. Permitting denial of arbitration on such a basis would plainly subvert the Legislature’s policy behind § 1286.2. “[C]lourts are reluctant to invalidate an arbitrator's award because “the Legislature has already expressed its strong support for private arbitration and the finality of arbitral awards in title 9 of the Code of Civil Procedure. (§ 1280 et seq.).” (Sunline Transit Agency v. Amalgamated Transit Union, Local 1277 (2010) 189 Cal. App.4th 292, 303.) Winkelmann’s complaint should be directed at the Legislature, not the Court; it has no relevance to this motion. ’ For instance, if MHC commences an unlawful-detainer dispute against Winkelmann, MHC would have to comply with the state and local laws protecting mobile home owners. (Civ. Code §§ 798.56, 798.56a, 798.57; see also Keh v. Walters (1977) 55 Cal. App. 4th 1522, 1525-1528.) 10 REPLY IN SUPPORT OF DEFENDANT’S MOTION FOR A PROTECTIVE ORDER AND FOR SANCTIONS ZA CK S, F R E E D M A N & P A T T E R S O N , PC 23 5 M O N T G O M E R Y ST RE ET , SU IT E 40 0 S A N F R A N C I S C O , C A L I F O R N I A 94 10 4 W N O O 0 J O N Wn 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 D. There is Good Cause to Stay Discovery Until Winkelmann’s Defective Pleading Against TNFP is Resolved. If the Court denies TNFP’s motion to compel arbitration and stay litigation on June 24, 2020, TNFP intends to demur against Winkelmann’s claims against TNFP because they are wholly unripe and fail to state any claim for declaratory relief against TNFP. TNFP should not be forced to respond to her discovery until she can show that her claims are potentially actionable, and thus there is good cause for a stay of such discovery until after the pleadings are resolved.® (CCP §§ 2025.420, 2030.090, 2031.060, 2033.080, 2019.020(b).) All cases that Winkelmann cites in her opposition to this request did not involve protective orders, nor did any party make a sufficient showing of good cause for an extension of time to respond to discovery, and thus they are distinguishable. (See, Winkelamnn Opp. pp. 15-16, citing, Mattco Forge, Inc. v. Arthur Young & Co. (1990) 223 Cal.App.3d 1429, 1436 [refusal to comply with a court order]; Budget Finance Plan v. Super. Ct. (McDowell) (1973) 34 Cal.App.3d 794, 797 [no basis for prohibiting discovery all together, but distinguishing another case in which discovery was “merely postponed” until demurrer heard (emph. add.)]; Union Mut. Life Ins. Co. v. Superior Court (1978) 80 Cal.App.3d 1 [case did not involve whether or not a court could stay discovery pending any demurrer].) Winkelmann also relies on Newby v. Alto Riviera Apartments (1976) 60 Cal.App.3d 288, Marlin v. Aimco Venezia, LLC (2007) 154 Cal.App.4th 154, and Jones v. Feichmeir (1949) 95 Cal.App.2d 341, for her argument that her claims against TNFP-who is not her landlord-are ripe. But those cases support TNFP, not Winkelmann. In those cases, the persons allegedly making the eviction threats were the tenants’ landlords. (Newby, supra, 60 Cal.App.3d at p. 292; Marlin, supra, 154 Cal.App.4th at p. 156.) In addition, notice of that eviction had been given.’ (Newby, supra, 60 8 Winkelmann claims that this relief was not requested in TNFP’s notice. Untrue. TNFP cited all relevant sections of the Code of Civil Procedure permitting this Court to grant a protective order for good cause shown, and as justice requires. (See, Notice of motion, citing CCP §§ 2031.060, 2030.090, 2033.080,2025.420.) As detailed herein, there is good cause here for the extension of time to respond to Winkelamnn’s discovery until after she proves her claims are viable, given the severe facial defects of her complaint. ? Also, none of these cases concern evictions from mobile home parks, which involve an extensive notice procedure from the owner of the park (i.e. MHC, not TNFP). (See, Civ. Code §798.56, 798.56a, 798.57; see also Keh, supra, at pp. 1525-1528.) 11 REPLY IN SUPPORT OF DEFENDANT’S MOTION FOR A PROTECTIVE ORDER AND FOR SANCTIONS ZA CK S, F R E E D M A N & P A T T E R S O N , PC 23 5 M O N T G O M E R Y ST RE ET , SU IT E 40 0 S A N F R A N C I S C O , C A L I F O R N I A 94 10 4 W N O O 0 J O N Wn 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Cal.App.3d at p. 304; Marlin, supra, 154 Cal.App.4th at p. 156.) Winkelmann admits that TNFP has not given Winkelmann notice of her eviction. (Ex. 4 9 52, 54 to RIN.) Nor could it-TNFP 1s not Winkelmann’s landlord; MHC is. Winkelmann claims Wilson & Wilson v. City Council of Redwood City (2011) 191 Cal. App.4th 1559 is distinguishable from this case because in Wilson, the city’s plan to take the plaintiff’s property was “non-binding.” But the threats that Winkelmann describes in the complaint are entirely non- binding. TNFP is not Winkelmann’s landlord, may not legally evict Winkelmann, and multiple notices of any eviction at the Park would have to be given (by MHC-the Park’s landlord) under state and local law. (Civ. Code §§ 798.56, 798.56a, 798.57; see also Keh v. Walters (1977) 55 Cal. App. 4th 1522, 1525-1528; see also San Jose Mobilehome Conversion Ordinance § 20.180.600.) Winkelmann admits she is entitled to notice under state and local law, and that such notice has not been given. (Winkelmann Opp. pp. 11:28-12:2.) Winkelmann’s allegations require this court to “speculate on the resolution of an entirely hypothetical situation.” (Wilson, supra, at pp. 1583-1584; Selby Realty Co. v. City of San Buenaventura (1973) 10 Cal.3d 110, 117.) That hypothetical situation, of course, is the outcome of TNFP and MHC’s dispute. '° The Court has broad authority to fashion any protective order it deems appropriate. (CCP §§ 2031.060, 2030.090, 2033.080; also see Wellpoint Health Networks, Inc. v. Superior Court (1997) 59 Cal.App.4th 110, 116 [Discovery could not be compelled where there was “no viable claim on file” because a demurrer had been sustained to the earlier complaint and no amended complaint had been filed].) Given the plain facial defects in Winkelmann’s complaint, the Court should use such authority to stay her discovery until after her pleading is resolved. (Save Open Space Santa Monica Mountains v. Superior Court (2000) 84 Cal.App.4th 235, 245. [“Management of discovery lies within the sound discretion of the trial court”].) Given the speculative and unripe nature of Winkelmann’s claims, 10 Environmental Defense Project of Sierra County v. County of Sierra (2008) 158 Cal. App.4th 877 is distinguishable, because there was no other pending dispute in that case (as there is here between TNFP and MHC). Further the county in that case actually had the ability to move forward with its alleged intent-unlike here, where TNFP’s alleged “intent to evict” would not be possible as a matter of law. (Civ. Code §§ 798.56, 798.56a, 798.57; see also Keh v. Walters (1977) 55 Cal. App. 4th 1522, 1525-1528; see also San Jose Mobilehome Conversion Ordinance § 20.180.600.) 12 REPLY IN SUPPORT OF DEFENDANT’S MOTION FOR A PROTECTIVE ORDER AND FOR SANCTIONS ZA CK S, F R E E D M A N & P A T T E R S O N , PC 23 5 M O N T G O M E R Y ST RE ET , SU IT E 40 0 S A N F R A N C I S C O , C A L I F O R N I A 94 10 4 W N O O 0 J O N Wn 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 discovery is premature. Given that the claim is not yet ripe, no amount of discovery will uncover facts that would allow Winkelmann to cure this defect in her pleadings. The Court should therefore grant TNFP’s request for a stay of Winkelmann’s discovery until after the pleadings are resolved. E. TNFP Brought This Motion With Substantial Justification and Thus Even If the Court Denies the Motion, Sanctions Are Not Warranted Against TNFP. Given the strong policy of enforcing private, contractual, arbitration, and staying proceedings until a motion to compel arbitration is resolved, TNFP plainly has “substantial justification” for bringing its motion for a protective order. Further, “[t]here is no single test for waiver of the right to compel arbitration.” (Berman v. Health Net (2000) 80 Cal. App.4th 1359, 1363-64.) (Lewis v. Fletcher Jones Motor Cars, Inc. (2012) 205 Cal.App.4th 436, 449 [“The trial court must ... view the litigation as a whole and determine if the parties’ conduct is inconsistent with a desire to arbitrate.”] If TNFP had responded to Winkelmann’s discovery and appeared for deposition, Winkelmann would have almost certainly used TNFP’s conduct against it in her response to the motion to compel arbitration (and has never offered to stipulate otherwise). Thus, even if the Court denies this motion, it should find that TNFP had substantial justification in bringing it and deny Winkelmann’s sanctions request against it and its counsel. F. Sanctions Against Winkelmann are Warranted Because She Cannot Oppose This Motion With Substantial Justification. On the other hand, Winkelmann has utterly failed to make any legal showing that she needs discovery on TNFP’s “position” in this action to assist her opposition to the motion to compel arbitration and stay the litigation. Instead, she denied a request for a short extension of time to respond to her discovery, thereby forcing this motion. The Court shall impose sanctions on a losing party to a motion for protective order unless that party acts with substantial justification or other circumstances render the imposition of sanction “unjust.” (CCP §§ 2025.420(h), 2030.090(d), 2031.060(h), 2033.080(d).) Winkelmann’s claims in this action are an admitted attempt to derail TNFP’s right to arbitration, and her bad faith conduct should not be rewarded. Because Winkelmann has not opposed this motion with substantial justification, sanctions are warranted here. (CCP § 2023.010.) 11 13 REPLY IN SUPPORT OF DEFENDANT’S MOTION FOR A PROTECTIVE ORDER AND FOR SANCTIONS ZA CK S, F R E E D M A N & P A T T E R S O N , PC 23 5 M O N T G O M E R Y ST RE ET , SU IT E 40 0 S A N F R A N C I S C O , C A L I F O R N I A 94 10 4 W N O O 0 J O N Wn 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 III. CONCLUSION Pursuant to the above, the Court should issue a protective order granting TNFP’s request for an extension to time to respond to Winkelmann’s discovery and impose sanctions against Winkelmann in the amount of $9,890.00, because she has failed to oppose this motion with any substantial justification. Respectfully submitted, Date: May 26, 2020 ZACKS, FREEDMAN & PATTERSON, PC = Emils#E Brough Attorneys for the Defendant THE NICHOLSON FAMILY PARTNERSHIP 14 REPLY IN SUPPORT OF DEFENDANT’S MOTION FOR A PROTECTIVE ORDER AND FOR SANCTIONS