Memorandum Points and Authorities

Cal. Super. - 6th Dist.March 29, 2021

PARKER LAW GROU P «055'; 133C 331'ng ”:an ,Il: "wpn': f“ c-c - u3¢vy~ 900%me 10 11 12 13 l4 15 16 17 18 19 20 21 22 23 24 25 26 27 28 21 CV38141 8 Santa Clara - Civil Port J. Parker, SBN 179256 Myles G. Taylor, SBN 298687 Kaitlyn M. Bigoni, SBN 308455 PARKER LAW GROUPATTORNEYS A Professional Corporation 555 Capitol Mall, Suite 1230 Sacramento, CA 95814 Telephone: (916) 996-0400 Facsimile: (916) 668-5760 myles@parlawgroup.com kaitlvn@parlawgroup.com Attorneys for BRYAN CARRERA Electronically Filed by Superior Court of CA, County of Santa Clara, on 8/30/2021 4:47 PM Reviewed By: Y. Chavez Case #21CV381418 Envelope: 7170211 SUPERIOR COURT OF CALIFORNIA IN AND FOR THE COUNTY OF SANTA CLARA BRYAN CARRERA, directly and derivatively on behalf ofAXON DESIGN, INC., Plaintiff, v. JOHN NOORI, an individual; AXON DESIGN INC., a California Corporation dba NTERRA GROUP; and DOES 1 through 50, inclusive, Defendants, and AXON DESIGN, INC., as a Nominal Defendant as t0 derivate claims Case N0. 21CV381418 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT 0F MOTION TO DEEM SPECIFIED REQUESTS ADMITTED Complaint Filed: March 29, 2021 I. INTRODUCTION Plaintiff served Request for Admissions, Set One, Form Interrogatories, Set One, Special 8 Interrogatories, Set One, and Request for Production 0f Documents, Set One, 0n Defendant John Noori on July 2, 2021. Responses to Plaintiffs discovery were due on August 6, 2021. Defendant acknowledged the discovery before and after the discovery was due. To date, 'no responses have been received. After failed meet and confer efforts, Plaintiff is forced to file this motion to have the subject )havez MEMORANDUM 0F POIINTS AND AUTHORITIES \OOOQ@UIAWNp-t H_ HO CAQSSH p-t-‘p-A AWN 230 SJ-ugmgm: H kl] ivox ifs: 3‘;le 3 555 Car, fl C\ PARKER LAW GROUP NNNNNNNNNH-‘H WNONUI$WNHO©OON matter in the requests for admissions deemed admitted because, without this fundamental and basic information, II. STATEMENT OF FACTS On March 29, 2021, Plaintiff Bryan Carrera (“Plaintiff Carrera”) filed this case for derivative claims against Defendant John Noori (“Defendant Noori”) on behalf ofAxon Design, Inc., as well as direct claims for unpaid wages and related violations of the Labor Code and Corporations Code. (Declaration of Myles G. Taylor [Taylor Dec1.], 1] 2, Exhibit A.) Defendant Noori received service of the Complaint on May l8, 2021. (Id. .) On July 2, 2021, Plaintiff served discovery, including Request for Admissions Set One on Defendant Noori. Defendant’s discovery responses were due on August 6, 2021. (Id. 1| 3, Exhibit B.) On July 27, 2021, as part of Plaintiff‘s counsel and Defendant Noori addressing both responsive pleading and potential settlement, Defendant Noori indicated “. . .I received your discovery requests including the admissions laundry list during the week ...” (Id. fl 4, Exhibit C.) Defendant did not request an extension of time to provide responses. On August 9, 2021, Plaintiff‘s counsel sent a message to Defendant Noori about the overdue discovery responses. (Id. 1] 5, Exhibit D.) On August 16, 2021, Defendant Noori responded, indicating his awareness 0f the discovery requests. (Id.) On August 18, 2021, Plaintiff’s counsel sent a message to Defendant Noori, pointing out that responses were still not provided, and that Defendant had not provided a date certain that he would do so. (1d,) On August 24, 2021, the Court held a case management conference. Plaintiff’s counsel appeared. Defendant Noori also appeared. The Court set a follow up hearing in April of 2022. (Id. ‘fl 6.) On August 27, 2021, Plaintiff’s counsel again sent a message to Defendant Noori indicating that no response had been received 0n the discovery. (Id. 11 7, Exhibit D.) T0 date, Plaintiff has still not received discovery responses. (Id.) MEMORANDUM OF POIzNTS AND AUTHORITIES PARKER LAW GROUP 05694 nfl ya ulie ‘23-? Sacramentc I,KzH 3 5,55 (30941:. \OWNQM&WN~ NNNNNNNNNr-‘r-Iv-au-u-p-A-tu-‘HH OOVQLh-PUJNHOOWNONUIAWN-‘O Plaintiff has requested entry of default against Defendant Noori; however, it has not been processed by the Court. The Court indicated at the Case Management Conference on August 24, 2021 that it may take six months to process. Defendant Noori indicated in correspondence he intends to move to set aside the default. Because the case is still pending, and default has not been entered against Defendant Noori at this time, Plaintiff will be prejudiced ifthe discovery is not responded to and Noori fulfills his stated intention to answer the Complaint. III. ARGUMENT A. PLAINTIFF'S MOTION FOR AN ORDER TO DEEM THE TRUTH 0F THE MATTERS ADMITTED SHOULD BE GRANTED Under Code of Civil Procedure § 2033.010, a party may request that another litigant “admit the genuineness of specified documents, or the truth of specified matters of fact, opinion relating to fact, or application of law to fact. A request for admission may relate to a matter that is in controversy between the parties.” If a litigant fails to timely respond, the propounding party may move the court for an order deeming the truth of any matters specified in the requests admitted. (Civ. Proc. Code, § 2033.230(b).) Plaintiff propounded specifically tailored Requests for Admissions on Defendant. Defendant has failed to respond to Plaintiffs’ Requests for Admissions. Cal. Code Civ. Proc. § 2033.280 provides: If a party to Whom requests for admission are directed fails to serve a timely response, the following rules apply: (a) The party to whom the requests for admission are directed waives any objection to the requests, including one based on privilege or on the protection for work product under Chapter 4 (commencing with Section 201 8.010). (b) The requesting party may move for an order that the genuineness of any documents and the truth of any matters specified in the requests be deemed admitted. (c) The court shall make this order, unless it finds that the party to whom the requests for admission have been directed has sewed, before the hearing on the motion, a proposed response t0 the requests for admission that is in substantial compliance with Section 2033.220. It is mandatory that the court impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) on the party or attorney, or both, MEMORANDUM OF POgNTS AND AUTHORITIES PARKER LAW GROUP CA958|4 Suite ‘230 Socron‘er r: QONthbJN 10 11 12 l3 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 whose failure to serve a timely response to requests for admission necessitated this motion. The causes of action in this case include both direct and derivative claims. Plaintiff‘s direct claims include unpaid wages (Labor Code § 201), failure to pay wages timely (Labor Code § 203), and claims arising from his rights in the corporation, Axon Design, Inc. His derivative claims on behalf ofAxon Design, Inc. against Defendant Noori include breach of fiduciary duty, abuse of control, and corporate waste. (See Plaintiff‘s Verified Complaint dated March 29, 2021.) The matters provided in the Request for Admissions address issues at the heart of the case. This includes, for example: Admit that by virtue ofYOUR position and financial holdings in Axon, YOU exercise control over Axon and its operations. (Request for Admission No. 1) Admit that as the Chief Executive Officer and member of the Board of Directors, YOU owe a fiduciary duty to Axon and its shareholders. (Request for Admission No. 2) Admit that YOU breached YOUR fiduciary duty to Axon and its shareholders. (Request for Admission No. 3) Admit that YOU favored YOUR own interests or the interests of any third parties at the expense of Axon. (Request for Admission No. 7) Admit that YOU breached YOUR duty to Axon to act with reasonable care (Request for Admission No. 11) Admit that by March 2019, YOU had amassed more than $500,000 in unbilled work that had not been charged t0 Axon’s clients. (Request for Admission No. 19) Admit that as ofJanuary 2020, Carrera was owed back pay from 201 8. (Request for Admission No. 22) Admit that Carrera was never paid for the back pay or owed wages identified in his written demands. (Request for Admission No. 25) (See, Taylor Decl., Exhibit B.) The subject matter of the Request for Admissions should be deemed admitted and the objections should be deemed waived pursuant to Cal. Code Civ. Proc.§ 2033.280. Furthermore, monetary sanctions are mandatory under this provision. MEMORANDUM OF POI4NTS AND AUTHORITIES PARKER LAW GROUP l4 C CA 938 Gcr‘srr‘cri Suite £30 S itc :A: 555 Co: OWNQUI-P 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 B. PLAINTIFF’S REQUEST FOR SANCTIONS SHOULD BE GRANTED Cal. Code Civ. Proc.§§ 2033.280(c) provides that: “It is mandatory that the court impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) on the party or attorney, or both, whose failure to serve a timely response to requests for admission necessitated this motion.” (See also Stover v. Bruntz (2017) 12 Cal.App.5th 19, 31-32 [“The court, moreover, was justified in sanctioning Bruntz for failing to timely respond to the discovery. Under Code of Civil Procedure section 2033.280, it is mandatory that the court impose a monetary sanction on the party or attorney whose failure to serve a timely response to a request for admission necessitates a motion to compel responses like the one filed herc.”]) Based on the present motion, Plaintiff justifiably moves to compel Defendant's untimely responses to specifically tailored Requests for Admissions. Defendant has failed to respond to Plaintiffs requests despite meet and confer efforts. Pursuant to statute, Plaintiff thus seeks an order of sanctions in the amount of $1,620. (See Taylor Decl., 1i 8.) IV. CONCLUSION Based 0n the foregoing, this Court should order that the subject matter of the Request for Admissions served on July 2, 2021 against Defendant Noori, be deemed true of any matters specified in the requests. The Court should also grant monetary sanctions in the amount of $ 1 ,620. as a result of forcing Plaintiff to file this motion. PARKER LAW GROUP ATTORNEYS A Professio I rporatiV JI f ' 1/ MYLES G. WLOR KAITLYN M. BIGONI Attorneys for PlaintiffBRYAN CARRERA DATED: August 30, 2021 MEMORANDUM 0F POISNTS AND AUTHORITIES