Brief TrialCal. Super. - 6th Dist.December 2, 2020Electronically Filed by Superior Court of CA, County of Santa Clara, on 4/5/2021 4:08 PM Reviewed By: M Vu Case #20CV373817 Envelope: 6176616 {DmxldbmlfiWNl-K t§ yrs b: In ho b9 I9 ha pa ha pa pa ha ha rd pk ha cz‘ct a. 0: to rd c> m: a> s] c: cl ®- o: ta rd (a Todd Rothbard 7 Attorney at Law 100 Saratoga Avenue Suite 200 28 Santa Clara, California 95051 TODD ROTHBARD #67351 ATTORNEY AT LAW lOO Saratoga Avenue #200 Santa Clara, California 95051 Tel.: (408) 244-4200 Attorney for the Plaintiff SUPERIOR COURT OF CALIFORNIA COUNTY OF SANTA CLARA, STATE OF CALIFORNIA DOLLINGER-THOMAS ROAD ASSOCIATES, LP, Plaintiff, NO. 20CV373817 VS. POST-TRIAL BRIEF YAANA TECHNOLOGIES, LLC, DOES I through V, inclusive, vvvvvvvvv Defendants. INTRODUCTION Defendant, a company with a history of habitual late payment of rent and multiple prior unlawful detainer actions, has failed to pay rent for over one year and, as of the date of trial in this action, was delinquent in payment in the sum of $308,635.14, with damages continuing to accrue thereafter at the rate of $836.41 per day. Following trial, the Court requested supplemental briefing to address three questions. This brief is respectfully submitted in response to the Court's request. ARGUMENT THE COURT SHOULD EXERCISE ITS DISCRETION TO PRECLUDE TESTIMONY AS TO MATTERS WHICH SHOULD HAVE BEEN DISCLOSED IN RESPONSE TO DISCOVERY The Courtrhas'reqfiéétédrbriefing as E0 whethér the Court can consider testimony relating to the reason for the decline in defendant's business as no responses to questions relating to this were provided in discovery. l co a: <1 c: en g. o: no pa H . O HH HN H 00 H g. H O‘l H 05 p-A q H m H CO NO N 1-1 NN N 00 ‘N N ‘01 1-D N C} N ‘1 Todd Rothbard Attorney at Law 100 Saratoga Avenue Suite 200 Santa Clara, California 95051 28 While the Court always has discretion to allow or exclude evidence, the Court can exclude evidence where a failure to respond to discovery puts one party at a significant disadvantage. See, e.g. Reales Investment, LLC v. Johnson (2020) 55 CASth 463, 269 CR3d 525; Pate V. Channel Lumber (1997) 51 CA4th 1447, 59 CR2d 919; Sauer v. Superior Court (1987) 195 CA3d 213, 240 CR 589. In Reales, supra, the Court excluded evidence where the party seeking to offer the evidence had been non-responsive to discovery and had failed to comply with a local rule relating to pre-trial disclosures. The Court stated, inter alia: "A trial court's 'inherent power to curb abuses and promote fair process extends to the preclusion of evidence' at trial. (Peat, Marwick, Mitchell & Co. v. Su erior Court (1988) 200 Cal. App.3d 272, 288 [245 Gag. Rptr. 873].) Accordingly, 'trial courts regularly exercise their "basic power to insure that all parties receive a fair trial" by precluding evidence'.(Ibid.)" Defendant here seeks to argue that the evidence should not be precluded because defendant had limitations imposed upon it by the United States Government which prevented it from proViding responses and because it had sought to "meet and confer" to resolve issues relating to discovery. V These contentions lack merit.- First, as set forth in the accompanying DECLARATION OF TODD ROTHBARD, there was never any limitation on defendant's ability to respond to discovery unrelated to the U.S. Government accounts and, as stipulated by the parties, the contract relating to those accounts was terminated at the outset of the Cdvid ripandemic forr reasonsr ehtirély unrelatédr tb Covid. Notwithstanding this, defendant provided no responses to interrogatories and document production requests (indeed, not a single document was produced by defendant in response to 2 QDWQ®OIH>OONH N‘N N N N N N i-l H H H H H H H r-l H Ob‘Ul lg 03 N H C CD m \1 65 U! 1-H 00 N H O Todd Rothbard Attorney at Law 100 Saratoga Avenue Suite 200 28 Santa Clara, California 95051 plaintiff's request for production of documents) Seeking contact information for non-Government related accounts and seeking the cause for a decline in revenues from those accounts, and defendant's chief executive officer failed entirely to appear for his properly noticed deposition. The trial in this matter was originally set for March 10, 2021 and there were no efforts made to address disputed discovery issues prior to that date. But for defendant's refusal to stipulate to trial before the Court Commissioner to which the matter was assigned for trial, the trial would have proceeded on March 10. After having been explicitly warned by plaintiff's counsel that plaintiff would object to any testimony at trial relating to matters which could have been (but were not) disclosed in response to discovery requests, and perhaps recognizing that the discovery stonewalling would not sit well with the Court at the time of trial, defendant's counsel belatedly sent a letter indicating a willingness to "meet and confer" on discovery issues; This letter was'received by plaintiff's counsel on the Friday afternoon before the Monday morning March 29 trial which was held in this action, and accordingly served no useful function. Defendant's contention that no responses could be produced prior to the stipulation which was entered into regarding the Government's interests is belied by the fact that defendant's counsel did not even accompany his letter with the responses which, even by defendant's own standard, were now clearly allowable. Accordingly, plaintiff was forced to go to trial unarmed with Vafiy ability to aispfite deféndant;s cdnblfisofy aliegétions that any loss of revenue sustained by defendant was related to Covid. It would be highly unfair to plaintiff to permit defendant to benefit from its stonewalling by introducing in 3 <9 OONHO Todd Rothbard 2 7 Attorney at Law 100 Saratoga Avenue Suite 200 28 Santa Clara, California 95051 of legislative clarity, and we are all left to guess at our peril as to what it does and does not require as a precondition to its protection. To the extent that the question can be answered, however, there are two significant clues. The first is that, pursuant to Section l and Section 3(a), a Tenant must "demonstrate that failure to pay is related to a substantial loss of income resulting from the Covid-l9 pandemic". Here, defendant simply cannot so demonstrate. This is first apparent because of defendant's history of pre-Covid inability to pay without the benefit of payments from the Government, a fact which is conceded in the stipulation which was entered into between the parties and which was undisputed in the evidence presented at trial. It is thus clear that, since the stream of revenue from the Government was halted for reasons which are conceded to be entirely unrelated to Covid, defendant's, failure to pay was not the result of "a substantial loss of income resulting from the Covid-l9 pandemic" but 'rather was the result of the loss of the revenue from the Government without which it has always been unable to pay its rent. It is secondly apparent because defendant provided no objectively verifiable evidence as to the cause of the loss of its non-Government related revenue. The second clue as to manner in which the Ordinance should be interpreted can be found in gherpreliminary languagg of the Ordinance where it states: "WHEREAS, the Board has determined that it is appropriate to temporarily prohibit evictions ... for any tenant (residential or commercial) who can" demonstrate that they are being evicted for the failure to pay rent, and that such failure is a direct 8 EDWQOEUIQWNH I9 to ha [w ha l§ ha ha rd hi pd ha rd hi rd pa ha GWQDONI-‘OQDWKIGimHRWNl-‘O Todd Rothbard Attorney at Law 100 Saratoga Avenue Suite 200 28 Santa Clara. California 95051 impact of the COVID-l9 pandemic" (emphasis supplied) It is accordingly clear that the purpose of the Ordinance upon which defendant relies is to provide protection for tenants who, but for Covid-l9, would have been able to pay their rent but who are not able to pay "as a direct impact of the COVID-l9 pandemic". Defendant simply does not fall within this category as it is Clear that, given its loss of Government revenue for reasons entirely unrelated to Covid, it would not have been able to pay its rent, as it had never been able to do so in the past. The purpose of the Ordinance demonstrably was not to provide a safe harbor for chronically late paying tenants to go for over a year without payment of rent when, even in the absence of the pandemic, they could not have paid their rent. CONCLUSION For the reasons set forth above, plaintiff would respectfully ask judgment as prayed. Respectfully submitted, ll. DATED: April 5, 2021 ‘ TODD ROTHBARD \ Attorney for Plaintiff wmx‘lCQUIIRGONH NNNNNNNHHHHHHHHHH amflkwwl-‘GmmqamflkmeG Todd Rothbard Attorney at Law 100 Saratoga Avenue Suite 200 28 Santa Clara, Califomia 95051 PROOF OF SERVICE BY EMAIL I, TODD ROTHBARD, hereby declare: I am the attorney for plaintiff herein. On April 5, 2021, I served a copy of the foregoing POST- TRIAL BRIEF and the accompanying DECLARATION OF TODD ROTHBARD on the defendant's counsel by emailing true copies thereof to email address: rinaldol@pacbell.net. I declare, under penalty of perjury, that the foregoing is true'and correct. Executed on April 5, 2021 at Santa Clara, Santa Clara / County, California. TODD ROTHBARD Attorney for Plaintiff lO