Peterson vs. Coach, Inc.

Response

Cal. Super. - 4th Dist.October 9, 2012

10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Andrea L. Cook, SBN 164915 ANDREA COOK & ASSOCIATES 555 East Ocean Boulevard, Suite 430 Long Beach, California 90802 Telephone: (562) 951-9135 Facsimile: (562) 951-9126 E-mail: alcook@alcooklaw.com Michael Berger, SBN 56549 LAW OFFICE OF MICHAEL BERGER 479 El Sueno Rd. Santa Barbara, CA 93110 Telephone: (805) 845-2180 Facsimile: (805) 845-2190 E-mail: michael@lawofficeofmichaelberger.com Attorneys for Plaintiff MADISEN PETERSON SUPERIOR COURT FOR THE STATE OF CALIFORNIA FOR THE COUNTY OF ORANGE MADISEN PETERSON, Plaintiff, V. COACH, INC., a Delaware Corporation doing business in California; REED KRAKOFF, LLC, a Delaware corporation doing business in California; REED KRAKOFF, an individual; COAST FLOORS INC., a California Corporation; SOUTH COAST PLAZA, LLC, a California company; and, DOES 1 through 100, inclusive, Defendants CASE NO.: 30-2012-00603898- CU-PO-CIC [Hon. Deborah Servino] PLAINTIFF'S RESPONSE TO SEPARATE STATEMENT RE: MOTION FOR A PROTECTIVE ORDER AND/OR TO QUASH OR MODIFY THE DEPOSITION SUBPOENA AND REQUEST FOR SANCTIONS [PLAINTIFF'S OPPOSITION TO MOTION FOR A PROTECTIVE ORDER AND/OR TO QUASH OR MODIFY; and, DECLARATIONS OF COOK, BERGER AND MINA filed concurrently herewith] Date: March 11, 2016 Time: 10:00 a.m. Dept: C22 Complaint Filed: 10/9/12 Trial: 10/24/16 N e ? N e N e N a N A N N N N A A N A N A N A A N A A N A N A A N A A N A N A A N A N A N A A A A A N A A N A N N PLTF'S RESP TO DEFS’ SEP STMT RE: MTN FOR PROTECTIVE ORDER/TO QUASH 1 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 TO THIS HONORABLE COURT, ALL PARTIES AND THEIR RESPECTIVE ATTORNEYS OF RECORD: Plaintiff MADISEN PETERSON (hereinafter “PLAINTIFF” or "MS. PETERSON") hereby provides her Response to Defendants COACH, INC. (hereinafter "COACH") and REED KRAKOFF LLC's (hereinafter “"RK") (collectively "COACH DEFENDANTS") Separate Statement as follows: CATEGORY NO.1: Any and ALL DOCUMENTS [defined by Plaintiff as synonymous with the term "writings" as defined in §250 of the California Code of Evidence and includes originals, copies and drafts of all written materials such as papers, letters, notes, pay stubs or other payment records, memoranda, reports, calendars, appointment diaries, agreements and evaluation, as well as recorded matter such as microfilm microfiche, electronic mail and electronically stored files.], including but not limited to financial and sales files such as books and records, in any format, reflecting the sale, transfer and/or delivery of any REED KRAKOFF merchandise to SAKS to be sold and/or distributed at the REED KRAKOFF store at SAKS located in the SOUTH COAST PLAZA. REASON REQUEST SHOULD BE QUASHED OR MODIFIED AND SUBJECT TO PROTECTIVE ORDER: A. The Request Seeks Information that is Protected as Confidential, Commercially Sensitive, or Proprietary and the Request is Overly Broad, Burdensome, Harassing and Not Reasonably Particularized or Reasonably Calculated to Lead to the Discovery of Admissible Evidence. The document requestfails to designate the documents to be produced by "specifically describing each individual item or by reasonably particularizing each category of item" in violation of Code of Civil Procedure, Section 2020.410 and therefore, amounts to an unauthorized fishing expedition. See e.g. Nelson v. Superior Court (1986) 184 Cal.App.3d 444, 452-3. Additionally, a document category in a PLTF'S RESP TO DEFS’ SEP STMT RE: MTN FOR PROTECTIVE ORDER/TO QUASH 2 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 nr,subpoena must be “reasonably’particularized ‘from the standpoint ofthe party on whom the demand is made". Calcor Space Facility, Inc. v. Superior Court (Thiem Industries, Inc.) 53 Cal.App.4th 216, 222 (1997) (emphasis added). Notable, Saks also objects to Plaintiffs subpoena because as phrased it is overbroad and amounts to a fishing expedition and fails to sufficiently describe the items which are to be produced. (See Exhibit "K" Saks' January 19, 2016 Objection to Plaintiffs subpoena.) Additionally, "[g]eneralized demands, insupportable by evidence showing at least the potential evidentiary value of the information sought, are not permitted." Calcor at 219. Here, Plaintiff's request for "financial and sales files [ ... ] reflecting sale, transfer and/or delivery of Reed Krakoff merchandise to Saks" does not describe with reasonable particularity the documents requested and necessarily includes confidential and proprietary business and financial information that is not relevant and not reasonably calculated to lead to the discovery of admissible evidence related to who controlled the premises where Plaintiff fell. Considering this would necessarily include confidential information that is not relevant or reasonably calculated to lead to the discovery of admissible evidence, (since it concerns Saks and the Coach Defendants financial relationship years after Plaintiff's 2010 fall) the subpoena is unreasonably burdensome and overly broad. Confidential business information constitutes property. Carpenter v. United States (1987) 484 U.S. 19, 25 (Citing, Ruckelhaus v. Mosanto Co. (1984) 467 U.S. 986, 1001-04.) Here, the Coach Defendants simply seek to limit the time period for the production of documents pursuant to the subpoena and ensure their continued confidentiality. The Coach Defendants have a cognizable interest in ensuring that their confidential and proprietary business information (i.e., financial sales information) is limited as to time because the widespread dissemination of the Coach Defendants’ confidential and/or proprietary information, could unfairly provide competitors with information regarding the Coach Defendants business dealings in the retail sale of products to its competitive disadvantage. (See Exhibit "B" Decl. of M. Mohiuddin 97- PLTF'S RESP TO DEFS’ SEP STMT RE: MTN FOR PROTECTIVE ORDER/TO QUASH 3 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 10.) Because financial information provides the Coach Defendants with a competitive advantage in the provision and sale of products, this information embodies confidential, proprietary and commercially sensitive business records. When proprietary information becomes public, its value as a competitive advantage is lost forever. Ruckelhaus, supra, 467 U.S. at 1011. Moreover, the Court in Carpenter stated: Confidential information acquired or compiled by a corporation in the course and conduct of its business is a species of property to which the corporation has the exclusive right and benefit, and which a court of equity will protect through the injunctive process or other appropriate remedy. Carpenter, supra, at 26. Code of Civil Procedure section 2031.060(b) specifically provides that a protective order may include the following directions: "(5) [ ... ] commercial information not be disclosed, or be disclosed only to specified persons or only in a specified way.” Thus, the Court is empowered to issue a protective order that restricts the persons eligible to receive information subject to that order. GT. Inc. v. Superior Court (1984) 151 Cal.App.3d 748 (a protective order that allowed only the litigants’ attorneys and expert - but not the party litigants - to receive and review protective information did not constitute an abuse of the Court's discretion.) For all the reasons stated above this category in Plaintiff's subpoena to Saks & Company should be subject to the protective order and limited in time from July, 2010 when Reed Krakoff’'s product was first sold to Saks for Saks' Reed Krakoff handbag department at South Coast Plaza through October 14, 2010 the date of Plaintiffs fall. PLAINTIFF'S RESPONSE RE: NO. 1: The relevancy of the documents sought in this request regards PLAINTIFF's establishing the existence of a partnership/joint venture between Saks and the COACH DEFENDANTS. From as early as the PLAINTIFF’'s Opposition to Summary Judgment to her most recent Motion to Modify the Protective Order, a compelling showing has been made as to the relevancy of the financial documents. The PLAINTIFF has, through the course of this litigation, persistently and credibly established the partnership PLTF’S RESP TO DEFS’ SEP STMT RE: MTN FOR PROTECTIVE ORDER/TO QUASH 4 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 relationship between and among Saks and the COACH DEFENDANTS. The establishment of a partnership is highly relevant in this case. When the evidence establishes the partnership, key Affirmative Defenses raised in the COACH DEFENDANTS’ Answer will be rendered moot relative to Saks’ part in the negligent control of the premises. Liability (4th) and Apportionment of non-economic damages under the Fair Responsibility Act (Civil Code § 1431 et. seq., colloquially Prop. 51) (5th) will be defeated relative to Saks. There are three basic elements of a partnership/joint venture: 1. Members must have joint control over the venture (even though they may delegate it). 2. They must share the profits of the undertaking. 3. The members must each have an ownership interest in the enterprise. Corporations Code § 16202; Orosco v Sun-Diamond Corpt (1997) 51 Cal.App.4™ 1659; DaFonte v. Up-Right Inc. (1992) 2 Caldth 593; Rogness v. English Moss Joint Ventureres (1987) 194 Cal. App.3e 190; Folsom Associates,v. Prometheus Development Corp. (1990) 223 Cal. App.3d 1. The profit sharing and ownership interest components of the enterprise are going to be evidenced by the financial arrangement(s) of these entities. The need for the discovery of those arrangements is therefore relevant. These elements can manifest in many different ways. Orosco, at 165. Whether a partnership has been created is primarily a question of fact and is for a jury to decide. 48 Cal. Jur. 3d, Partnerships § 36. Over the course of discovery, it has been steadily established that the claim of partnership is legitimate and provable by admissible evidence. More evidence is needed on the issue of financial arrangements. Attached to the Cook Decl. as Exhibit “1” and incorporated herein fully is the Declaration of Tom Graham. This Declaration is already part of the record established PLTF'S RESP TO DEFS’ SEP STMT RE: MTN FOR PROTECTIVE ORDER/TO QUASH 5 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 in the Opposition to Motion for Summary Judgment. Mr. Graham also testified in a seven (7) hour deposition conducted on February 5, 2016. His testimony, consistent with his Declaration, establishes the almost complete control that the COACH DEFENDANTS maintained over the premises and, more particularly the floor where the PLAINTIFF fell. It also establishes the notice of the dangerous condition that the COACH DEFENDANTS had well in advance of the injury to the PLAINTIFF. It also establishes the fact that Saks maintained a collaborative —partnership- relationship regarding, without limitation, how the dangerous condition of the floor should be handled. That evidence is most impactful in the form of a series of e-mails exchanged between Saks and the COACH DEFENDANTS. They are attached to the Declaration of Mr. Graham (Exhibit “1” to the Cook Decl.). During the deposition of Carol Taylor, the assistant manager for operations of Saks at South Coast Plaza at all times relevant, she testified to Saks’ and the COACH DEFENDANTS half-hearted and frustrating response(s) to the notice of a dangerous condition of the floor that the PLAINTIFF slipped and fell on. She referred to Saks’ partner, COACH no less than twenty-three times. She testified that she collaborated with Saks’ partner, COACH, on dealing with the dangerous condition. See the Declaration of Andrea Cook. If the negligence in question was the negligence of the joint venturer, the joint venture is in the same position as any other third party tortfeasor. The partnership or joint venture is liable to an injured third party for the torts of a partner or joint venturer acting in furtherance of the enterprise. 9 Witkin, Summary Cal Law (9" ed, 1989), Partnership § 21, p. 421). Whether the jury in this case, based on the evidence presented, finds that a partnership or a joint venture existed does not matter in the eyes of the law. Distinctions between the two are not sharply drawn. This has been true for over one hundred years. Westcott v. Gilman (1915) 170 Cal 562; 9 Witkin, Summary Cal Law 10™ (2005), Partnerships. PLTF'S RESP TO DEFS’ SEP STMT RE: MTN FOR PROTECTIVE ORDER/TO QUASH 6 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 . The Discovery requested fails to designate with specificity and therefore amounts to an unauthorized fishing expedition. The requests are specific, as acknowledged by the defendants. “Plaintiff is essentially requesting all financial documents between the Coach Defendants and Saks, in particular as it relates to the Reed Krakoff department at Saks Fifth Avenue for the entire period in which Saks and Coach Defendants had a business relationship.” COACH DEFENDANTS’ Motion Pg. 6: 6-13. The relationship only lasted three years. The financial documents that PLAINTIFF does have evidence discreet, limited activity concerning very high end, expensive inventory (See the Declaration of Andrea Cook). The Letter Agreement (protected and under seal) calls out for the exchange of financial information sought by this Discovery. The Court is respectively directed to even a cursory review of the Letter Agreement to confirm this assertion. Additionally, the limited number of invoices evidencing inventory from the COACH DEFENDANTS to Saks provide a glimpse of the financial relationship between them. Those invoices are marked collectively as Exhibit “3” to the Cook Decl. See the Declaration of Andrea Cook. These documents provide the bases for the PLAINTIFF's requests. “Obviously, the demanding party cannot specifically describe an individual item without first ascertaining its existence.” Calcor Space Facility, Inc. v. Superior Court, 53 Cal. App4th 216, at 222 (1997). The PLAINTIFF has provided reasonably particularized descriptions of the category documents and it comports with the requirements of Code of Civil Procedure § 2020.410. . The requests seek commercially sensitive information. This objection is fully covered and the concerns are protected by the Protective Order, which this Court is familiar with. The PLAINTIFF has no objection to any of these documents being subject to the Protective Order. [11 PLTF'S RESP TO DEFS’ SEP STMT RE: MTN FOR PROTECTIVE ORDER/TO QUASH 7 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CATEGORY NO. 2: Any and ALL DOCUMENTS,including but not limited to financial and sales files reflecting any reconciliations, settlements, payments and/or resolutions, without limitation, for merchandise delivered to the REED KRAKOFF store at SAKSlocated in the SOUTH COAST PLAZA. Please refer to the deposition of Carol Taylor taken on February 11, 2015, p. 30: 13-17. Such DOCUMENTS should be without limitation to bills of sale, transfer documents, bills of lading or receipts of any kind indicating the reconciliation or settlement of payments for REED KRAKOFF merchandise delivered to SAKS. ("Merchandise"is referred to in the Letter Agreement signed by Graziano de Boni and Ronald Frasch on October 18, 2010.) REASON REQUEST SHOULD BE QUASHED OR MODIFIED AND SUBJECT TO PROTECTIVE ORDER: A. The Request Seeks Information that is Protected as Confidential, Commercially Sensitive, or Proprietary and the Request is Overly Broad, Burdensome, Harassing and Not Reasonably Particularized or Reasonably Calculated to Lead to the Discovery of Admissible Evidence. The document requestfails to designate the documents to be produced by "specifically describing each individual item or by reasonably particularizing each category of item" in violation of Code of Civil Procedure, Section 2020.410 and therefore, amounts to an unauthorized fishing expedition. See e.g. Nelson v. Superior Court (1986) 184 Cal.App.3d 444, 452-3. Additionally, a document category in a nr,subpoena must be “reasonably’particularized ‘from the standpoint ofthe party on whom the demand is made". Calcor Space Facility, Inc. v. Superior Court (Thiem Industries, Inc.) 53 Cal.App.4th 216, 222 (1997) (emphasis added). Notable, Saks also objects to Plaintiffs subpoena because as phrased it is overbroad and amounts to a fishing expedition and fails to sufficiently describe the items which are to be produced. (See Exhibit "K" Saks' January 19, 2016 Objection to Plaintiffs subpoena.) PLTF'S RESP TO DEFS’ SEP STMT RE: MTN FOR PROTECTIVE ORDER/TO QUASH 8 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Additionally, "[g]eneralized demands, insupportable by evidence showing at least the potential evidentiary value of the information sought, are not permitted." Calcor at 219. Here, Plaintiff's request for "financial and sales files reflecting any reconciliations, settlements, payments and/or resolutions, without limitation, for merchandise delivered to the REED KRAKOFF store” does not describe with reasonable particularity the documents requested and necessarily includes confidential and proprietary business and financial information that is not relevant and not reasonably calculated to lead to the discovery of admissible evidence related to who controlled the premises where Plaintiff fell. Plaintiff is essentially requesting all financial documents between the Coach Defendants and Saks, in particular as it relates to the Reed Krakoff department at Saks Fifth Avenue for the entire period in which Saks and the Coach Defendants had a business relationship. (See Exhibit "I", Plaintiffs December 30, 2015 subpoena to Saks & Company.) Considering this would necessarily include confidential information that is not relevant or reasonably calculated to lead to the discovery of admissible evidence, (since it concerns Saks and the Coach Defendants financial relationship years after Plaintiff's 2010 fall) the subpoena is unreasonably burdensome and overly broad. Confidential business information constitutes property. Carpenter v. United States (1987) 484 U.S. 19, 25 (Citing, Ruckelhaus v. Mosanto Co. (1984) 467 U.S. 986, 1001- 04.) When proprietary information becomes public, its value as a competitive advantageis lost forever. Ruckelhaus, supra, 467 U.S. at 1011. Moreover, the Court in Carpenter stated: Confidential information acquired or compiled by a corporation in the course and conduct ofits business is a species of property to which the corporation has the exclusive right and benefit, and which a court of equity will protect through the injunctive process or other appropriate remedy. Carpenter, supra, at 26. Here, the Coach Defendants simply seek to limit the time period for the production of documents pursuant to the subpoena and ensure their continued PLTF'S RESP TO DEFS’ SEP STMT RE: MTN FOR PROTECTIVE ORDER/TO QUASH 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 confidentiality. The Coach Defendants have a cognizable interest in ensuring that their confidential and proprietary business information (i.e., financial sales information) is limited as to time because the widespread dissemination of the Coach Defendants confidential and/or proprietary information, could unfairly provide competitors with information regarding the Coach Defendants business dealings in the retail sale of products to its competitive disadvantage. (See Exhibit "B" Decl. of M. Mohiuddin §97- 10.) Because financial information provides the Coach Defendants with a competitive advantage in the provision and sale of products, this information embodies confidential, proprietary and commercially sensitive business records. Code of Civil Procedure section 2031.060(b) specifically provides that a protective order may include the following directions: "(5) [ ... ] commercial information not be disclosed, or be disclosed only to specified persons or only in a specified way.” Thus, the Court is empowered to issue a protective order that restricts the persons eligible to receive information subject to that order. GT. Inc. v. Superior Court (1984) 151 Cal.App.3d 748 (a protective order that allowed only the litigants’ attorneys and expert - but not the party litigants - to receive and review protective information did not constitute an abuse of the Court's discretion.) For all the reasons stated above this category in Plaintiff's subpoena to Saks & Company should be subject to the protective order and limited in time from July, 2010 when Reed Krakoff’'s product was first sold to Saks for Saks' Reed Krakoff handbag department at South Coast Plaza through October 14, 2010 the date of Plaintiffs fall. PLAINTIFF'S RESPONSE RE: NO. 2: The documents sought to be produced are protected by the Protective Order and PLAINTIFF has no objection to all of them being so protected. The time period is only approximately three years as among Saks, COACH and RK and another two years as between Saks and RK. The financial documents during this period are not voluminous and there is no showing by the COACH DEFENDANTS that they are; only a conclusion stated that their production is burdensome. The PLTF'S RESP TO DEFS’ SEP STMT RE: MTN FOR PROTECTIVE ORDER/TO QUASH 10 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 documents will reveal the course of conduct as it relates to profits and ownership. A limiting of the time to the four month period consisting of the start of the partnership in the summer of 2010 thru November 2010 as urged by COACH DEFENDANTS is not a sufficient time for PLAINTIFF to establish the course of conduct. Dated: February 29, 2016 ANDREA COOK & ASSOCIATES By: /s/ Michael Berger Attorneys for Plaintiff, MADISEN PETERSON PLTF'S RESP TO DEFS’ SEP STMT RE: MTN FOR PROTECTIVE ORDER/TO QUASH 11 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PROOF OF SERVICE BY OVERNIGHT DELIVERY STATE OF CALIFORNIA ) ) ss. COUNTY OF ORANGE ) I am employed in the County of Los Angeles, State of California. I am over the age of 18 and not a party to the within action; my business address is 1 World Trade Center, #191, Long Beach, California 90831. On February 29, 2016, I served the foregoing document described as PLAINTIFF'S RESPONSE TO SEPARATE STATEMENT RE: MOTION FOR A PROTECTIVE ORDER AND/OR TO QUASH OR MODIFY THE DEPOSITION SUBPOENA AND REQUEST FOR SANCTIONS by enclosing them in a sealed envelope addressed as follows: Stephen Kelley Robert Luster Bowman and Brooke, LLP Austin, Brownwood, Cannon & Santa Cruz 970 West 190th St., Ste. 700 1615 Murray Canyon Rd., Ste. 550 Torrance, CA 90502 San Diego, CA 92108 Lisa Collinson Collinson Law 21515 Hawthorne Blvd., Ste. 800 Torrance, CA 90503 _X__ (BY OVERNIGHT DELIVERY) I enclosed the documents in an envelope or package provided by an overnight delivery carrier and addressed to the persons at the addresses above. 1 placed the envelope or package for collection and overnight delivery at an office or a regularly utilized drop box of the overnight delivery carrier. X (STATE) I declare under penalty of perjury under the laws of the State of California that the above is true and correct. (FEDERAL) I declare that I am employed in the office of a member of the bar of this Court at whose direction the service was made. Executed on February 29, 2016, at Long Beach, California. s A. Campos