National Merchant Center, Inc. vs. Five Four Group, LLC

Opposition

Cal. Super. - 4th Dist.August 27, 2015

A L P E R T L A W G R O U P , A P C 16 13 3 Ve nt ur a Bo ul ev ar d, Su it e 11 80 En ci no , Ca li fo rn ia 91 43 6 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Jeffrey Alpert, Esq., SBN 165997 Ashley Montgomery, Esq., SBN 291762 ALPERT LAW GROUP, APC 16133 Ventura Boulevard, Suite 1180 Encino, California 91436 Telephone: (818) 285-5370 Facsimile: (818) 285-5371 Email: jeff@alpertlawgroup.com Attorneys for Plaintiff and Cross-Defendants, National Merchant Center, Inc., PaymentWorld, Eugene Shampansky, and Sam Ragnone ELECTRONICALLY FILED Superior Court of California, County of Orange 0916/2016 at 12:34:00 Pi Clerk of the Superior Court By Diana Cuevas, Deputy Clerk LLC, SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF ORANGE NATIONAL MERCHANT CENTER, INC, a California Corporation; Plaintiff VS. FIVE FOUR GROUP, LLC a California Limited Liability Corporation dba FiveFourClub.com; ANDRES IZQUIETA, an individual; GURU DEEP MURTHY, an individual; and DOES 1 through 20, inclusive; Defendants. And related cross-action. Case No.: 30-2015-00806816-CU-CO-CJC [Assigned to Department C-33, The Honorable James L. Crandall, Presiding] NATIONAL MERCHANT CENTER, INC, PAYMENTWORLD LLC, SAM RAGNONE AND EUGENE SHAMPANSKY'’S JOINT OMNIBUS OPPOSITION TO DEFENDANT AND CROSS-COMPLAINANT FIVE FOUR GROUP LLC’S MOTION FOR AN ORDER TO COMPEL RESPONSES TO WRITTEN DISCOVERY, AND REQUEST FOR SANCTIONS IN THE AMOUNT OF $13,100.00 AGAINST FIVE FOUR GROUP, LLC AND ITS COUNSEL OF RECORD, JOINTLY AND SEVERALLY Date: September 29, 2016 Time: 1:30 p.m. Dept: C-33 [Filed concurrently with Request for Taking Judicial Notice, Oppositions to Five Four Group, LLC’s motions to compel discovery, Separate Statements, Memorandi of Points and Authorities, and Declaration of Jeffrey Alpert in Support of each Opposition] -1- OMNIBUS OPPOSITION TO FIVE FOUR’S MOTION TO COMPEL RESPONSES TO WRITTEN DISCOVERY A L P E R T L A W G R O U P , A P C 16 13 3 Ve nt ur a Bo ul ev ar d, Su it e 11 80 En ci no , Ca li fo rn ia 91 43 6 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Plaintiff and Cross-Defendant’s hereby submits their joint Omnibus Opposition’ to Five Four Group, LLC’s nine (9) motions to compel discovery as follows: 1. Introduction. On August 3, 2016, Five Four Club, LLC, Andres Izquieta, Guru Deep (collectively “FiveFour”) filed the following nine (9) motions (collectively “Motions™): I. Motion to Compel Cross-Defendant Eugune Shampansky to Respond to Request for Production of Documents; 2 Motion to Compel Cross-Defendant Eugune Shampansky to Respond to Special Interrogatories; 3 Motion to Compel Cross-Defendant Sam Ragnone to Respond to Request for Production of Documents; 4. Motion to Compel Cross-Defendant Sam Ragnone to Respond to Special Interrogatories; =; Motion to Compel Cross-Defendant Sam Ragnone to Respond to Form Interrogatories; 6. Motion to Compel Plaintiff and Cross-Defendant National Merchant Center, Inc. to Respond to Request for Production of Documents; 7s Motion to Compel Plaintiff and Cross-Defendant National Merchant Center, Inc. to Respond to Special Interrogatories; 8. Motion to Compel Cross-Defendant PaymentWorld, LLC to Respond to Request for Production of Documents; and gD. Motion to Compel Cross-Defendant PaymentWorld, LLC to Respond to Special Interrogatories. "This Omnibus Opposition is being filed for the Court’s convenience to demonstrate why the subject nine (9) motions to compel discovery filed by Five Four Group, LLC should be denied in the first instance, and to highlight some of the misstatement made by Five Four Group, LLC’s counsel submitted in support of said motions. 9. OMNIBUS OPPOSITION TO FIVE FOUR’S MOTION TO COMPEL RESPONSES TO WRITTEN DISCOVERY A L P E R T L A W G R O U P , A P C 16 13 3 Ve nt ur a Bo ul ev ar d, Su it e 11 80 En ci no , Ca li fo rn ia 91 43 6 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 On May 19, 2016, FiveFour filed a single motion (“Original Motion”) to compel responses to each of the discovery that is the subject matter of the instant Motions.” On May 26, 2016, Plaintiff and Cross-Defendants (“Responding Parties”) filed their opposition to the Original Motion seeking sanctions against FiveFour for its late-filed/improper Original Motion and FiveFour’s complete failure to meet and confer in good faith prior to filing the Original Motion.” FiveFour then abandoned the Original Motion and took the matter off calendar.” FiveFour’s Motions should be denied because the time to move on the discovery alleged to be in dispute has long since passed, FiveFour abandoned seeking any relief when it took its Original Motion off calendar, and as such, the pending Motions are an improper attempt to renew the Original Motion. Given that the Motions are meritless, FiveFour and its counsel should be sanctioned, jointly and severally, for having to oppose them in the first instance. 2. Statement of Facts Related To The Original Motion And Original Responses To Discovery. On December 16, 2015, FiveFour propounded the nine (9) discovery requests that are the subject of FiveFour’s Motions. Declaration of Jeffrey Alpert (“J. Alpert Dec.”) 43, Exhibit “A”. Counsel for FiveFour, Mr. James Huber, and counsel for the Responding Parties, Mr. Jeffrey Alpert, meet and conferred regarding the outstanding discovery and Mr. Huber agreed to a thirty (30) day extension to respond to discovery up to February 19, 2016. J. Alpert Dec. 95, Exhibit “B”. On February 18, 2016, Mr. Huber emailed Mr. Alpert stating the time to respond to the discovery had passed and Mr. Huber deemed all objections waived and demanded that a full production be made no later than February 25, 2016. J. Alpert Dec. 96, Exhibit “C”. Mr. Alpert reminded Mr. Huber that he had granted an extension of time to respond to the discovery until February 19, 2016. J. Alpert Dec. §7, Exhibits “B” & “C”. On February 19, 2016, Responding Parties timely served by mail responses to all outstanding discovery. J. Alpert Dec. 11, Exhibit “F”. * See Request for Taking Judicial Notice (“RFTIN”), Exhibit “A”. ? See RFTJN, Exhibit “B”. * See RFTJIN, Exhibit “C”. 3 OMNIBUS OPPOSITION TO FIVE FOUR’S MOTION TO COMPEL RESPONSES TO WRITTEN DISCOVERY A L P E R T L A W G R O U P , A P C 16 13 3 Ve nt ur a Bo ul ev ar d, Su it e 11 80 En ci no , Ca li fo rn ia 91 43 6 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 On May 6, 2016, FiveFour demanded supplemental responses to all discovery or it would file motions to compel on all discovery. J. Alpert Dec.” § 15, Exhibit “J”. At the time FiveFour made the demand for supplemental discovery, FiveFour had reserved the date of June 9, 2016 for its Original Motion. The time to file and personally serve the Original Motion would have been May 17, 2016. Counsel for FiveFour never disclosed that he had reserved the June 9, 2016 hearing date. J. Alpert Dec. q 25. When Mr. Alpert received the May 6, 2016 meet and confer letter, he immediately notified counsel for FiveFour that he was not available for the next ten (10) days as he was going to his destination wedding in Mexico, and asked for a twenty-one (21) day extension of time to respond with an agreed upon reciprocal time to file any motion to compel so that the parties could have ample time to properly meet and confer. J. Alpert Dec. 16, Exhibit “K”. Mr. Huber would not agree.’ May 19, 2016 FiveFour filed its Original Motion on all originally served discovery to be heard on June 9, 2016. RFTJIN, Exhibit “A”. On May 26, 2016, Responding Parties timely filed opposition on the grounds that, among other things, the Original Motion was: (a) filed/served late; (b) wholly defective as FiveFour moved on thirteen (13) items of discovery in one (1) motion and did not file any Separate Statements for each item of discovery in dispute; and (c) that FiveFour failed to meet and confer in good faith and, therefore, sought sanctions against FiveFour and its counsel. RFTJN, Exhibit “B”. At 5:05p.m. on June 1, 2016, Mr. Huber’s office notified Mr. Alpert that FiveFour vacated the June 9, 2016 hearing date and continued it to June 30, 2016, and FiveFour would be refilling the moving papers reflecting the same. J. Alpert Dec. 422, Exhibit “O”. No further moving papers were ever filed or served. J. Alpert Dec. qq 22, 24, 42. Exhibit “Y” > Mr. Huber’s inability to agree is consistent with the fact that he had reserved a date for June 9, 2016, and only first attempted to meet and confer one week prior to the deadline to file the Original Motion. Instead of advising Mr. Alpert of his deadline to file based on the reserved date, Mr. Huber pressed for responses even knowing that Mr. Alpert was going to be out of the country at Mr. Alpert’s destination wedding. A- OMNIBUS OPPOSITION TO FIVE FOUR’S MOTION TO COMPEL RESPONSES TO WRITTEN DISCOVERY A L P E R T L A W G R O U P , A P C 16 13 3 Ve nt ur a Bo ul ev ar d, Su it e 11 80 En ci no , Ca li fo rn ia 91 43 6 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 No agreement regarding re-filing the Original Motion was ever entertained by the parties. J. Alpert Dec. 9 24. Five Four vacated the Original Motion on June 21, 2016. J. Alpert Dec. 9 42. 3. Statement of Facts Relating To Supplement Responses To Discovery. On Friday, May 20, 2016, Ms. Montgomery, Mr. Alpert’s associate, sent a meet and confer letter to Mr. Huber outlining the supplemental responses that would be provided to FiveFour. J. Alpert Dec. 9 18, Exhibit “L”. On May 23, 2016, Mr. Alpert first saw the Original Motion when it was received in the mail. On June 7, 2016, Responding Parties served voluntary supplemental responses to the following discovery: Form Interrogatory propounded on National Merchant Center, Inc.; Request for Admission propounded on National Merchant Center, Inc.; and Form Interrogatory propounded on PaymentWorld, LLC (“Supplemental Responses”). J. Alpert Dec. 9 29, Exhibit “R”. On June 20, 2016 Mr. Alpert’s office sent Mr. Huber’s offices a letter with a CD of a voluntary production of documents. J. Alpert Dec. 9 38, Exhibit “W”. On July 22, 2016, Mr. Alpert’s office sent additional voluntary supplemental responses. J. Alpert Dec. § 52, Exhibit “EE”. On August 3, 2016, Mr. Alpert’s office received notice of ten (10) Motions to Compel (“Motions”) filed by Five Four. J. Alpert Dec. 9 57. Of the three (3) Supplemental Responses served on Five Four in June, FiveFour elected to move to compel further response to the Form Interrogatories propounded on PaymentWorld, LLC. On August 10, 2016, Mr. Alpert’s office sent Mr. Huber a Safe Harbor notice regarding the Motions stating time had expired to move on all but one (1) of the ten (10) motions and that Mr. Huber should take said motions off calendar. J. Alpert Dec. q 58, Exhibit “HH”. 4. FiveFour’s Motion Should Be Denied Because Time Has Expired To File Nine (9) Of The Motions. Given that: (a) the Responding Parties timely served their original responses to discovery on February 19, 2016; (b) on May 19, 2016, FiveFour moved to compel further responses on all -5- OMNIBUS OPPOSITION TO FIVE FOUR’S MOTION TO COMPEL RESPONSES TO WRITTEN DISCOVERY A L P E R T L A W G R O U P , A P C 16 13 3 Ve nt ur a Bo ul ev ar d, Su it e 11 80 En ci no , Ca li fo rn ia 91 43 6 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 originally served discovery; (¢) on June 1, 2016, FiveFour took off calendar its Original Motion, FiveFour waived any right to seek relief be taking the Original Motion off calendar, or in the alternative, FiveFour’s time to file any motion relating thereto has long since passed. C.C.P. §§ 2030.300(c) & 2031.310(c). 5. Mr. Huber’s Misstatements. In an attempt to revive FiveFour’s Original Motion, Mr. Huber makes certain statements in his declaration to support his position that the Motions are timely. However, the evidence is contrary to Mr. Huber’s statements. A. Mr. Huber’s Claim That Objections Were Waived As Responses Were Not Timely, And There, No Meet And Confer Is Required. FiveFour alleges that Responding Party’s responses were not timely served and thus all objections were waived and no meet and confer was necessary prior to filling the Motions. Mr. Huber states “[o]n February 18, 2016, [Mr. Huber] emailed Mr. Alpert to confirm that... the deadline for Cross-Defendants to respond FiveFour’s First Round of Discovery had passed, and that all objections of Cross-Defendants to FiveFour’s First Round of Discovery had there been waived...” Declaration of James Huber In Support Of Defendants’/Cross- Complainants” Motion For An Order To Compel Cross-Defendant National Merchant Center, Inc. To Provided Amended Responses To Special Interrogatories (“J. Huber Dec.”), 7:26-8:2.° The evidence is as follows: fe The original discovery was served by mail on December 16, 2016. il. The time to respond to the original discovery was January 20, 2016 i.e. 35 days from December 16, 2016. iil. On January 11, 2016, Mr. Huber had granted Mr. Alpert’s office a thirty (30) day extension stating “thus, we will calendar the deadline to respond 30 days out from the deadline, unless there’s any issue with that”. J. Alpert Dec. 9 5, Exhibit “B” & “C”. % See Declaration of James Huber 9 31-31 filed with Motions and Memorandum of Points and Authority for Motion to Compel National Merchant Center, Inc. to Provide Amended -6- OMNIBUS OPPOSITION TO FIVE FOUR’S MOTION TO COMPEL RESPONSES TO WRITTEN DISCOVERY A L P E R T L A W G R O U P , A P C 16 13 3 Ve nt ur a Bo ul ev ar d, Su it e 11 80 En ci no , Ca li fo rn ia 91 43 6 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 iv. Thirty (30) days from January 20, 2016 is February 19, 2016. V. Mr. Huber confirmed the new due date as February 19, 2016 in the declaration he filed in support of the Original Motion. RFTJN, Exhibit “B”, 3:2-4. B. Mr. Huber’s Claim To Extensions On All Discovery Based On Complete Production Of Documents. FiveFour claims “the parties originally agreed that the deadline to file a motion to compel would be forty-five (45) days from the date Responding Parties provided a complete response to the respective Request for Production of Documents.”’ The evidence is as follows: 1. On March 10, 2016, after meeting and conferring with Mr. Alpert via telephone, Mr. Huber emailed Mr. Alpert to “confirm our discussion” claiming that “we agreed to extend the deadline on motions to compel to reflect the dates that we nail down the protective order and you make the full production”. J. Alpert Dec. 9 13, Exhibit “I”. il. However, no such agreement was confirmed by Mr. Alpert. C.C.P. § 2030.300(c). J. Alpert Dec. q 14. iil. No specific later date was agreed to as required by C.C.P. § 2030.300(c). J. Alpert Dec. 9 14. 1v. Rather, on March 10, 2016, Mr. Alpert agreed to extend time on the production of documents pending the parties’ entering into a stipulated protective order. J. Alpert Dec. q 14. Vi. No agreement regarding re-filing the Original Motion was ever entertained by the parties. J. Alpert Dec. 9 24. Responses to Special Interrogatories, 2:19-3:7. The same statement regarding the due date is in all points and authorities filed with the Motions. 7 Memorandum of Points and Authority for Motion to Compel National Merchant Center, Inc. to Provide Amended Responses to Special Interrogatories, 6:15-19. Please note the same statement regarding the due date is in all points and authority filed with the Motions, the referenced one is just by way of example. Te OMNIBUS OPPOSITION TO FIVE FOUR’S MOTION TO COMPEL RESPONSES TO WRITTEN DISCOVERY A L P E R T L A W G R O U P , A P C 16 13 3 Ve nt ur a Bo ul ev ar d, Su it e 11 80 En ci no , Ca li fo rn ia 91 43 6 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 C. Mr. Huber Claims It Takes Weeks To Receive Mail. Mr. Huber claims that it takes weeks for Mr. Huber’s office to receive mail sent from Mr. Alpert’s office and has also claimed to not receive mail at all. J. Huber Dec. The evidence is as follows: 1. Mr. Huber’s mailing address listed on his pleadings is 5411 Avenida Encinas, Suite 280, Carlsbad, CA 92009. ii. Mr. Huber’s mailing address listed on the California State Bar web site is 5411 Avenida Encinas, Suite 208, Carlsbad, CA 92009. RFTIN, Exhibit “E”. iil. On August 26, 2016 Mr. Alpert sent via fed ex deposition notices to Mr. Huber. J. Alpert Dec. q 60. iv. On August 29, 2016, Mr. Huber signed for the fed ex package. Exhibit “II”. V. On September 1, 2016 Mr. Alpert requested that Mr. Huber confirm that the depositions would go forward. J. Alpert Dec. § 61. Vi. Mr. Huber then claimed that he did not know about the depositions, further claiming that he had not gone through his mail as that is rarely used by him. J. Alpert Dec. § 61. vii. ~~ On June 7, 2016, Responding Parties served by mail voluntary supplemental responses to the following discovery: Form Interrogatory propounded on National Merchant Center, Inc.; Request for Admission propounded on National Merchant Center, Inc.; and Form Interrogatory propounded on PaymentWorld, LLC (“Supplemental Responses”). J. Alpert Dec. 29, Exhibit “R”. viii. ~~ Mr. Huber claims that he did not received the Supplemental Responses until June 15,2016. Declaration of James Huber 955. D. Mr. Huber Claims To Have Taken The Original Motion Off Calendar Because Of Documents Received. Five Four claims that they “later withdrew [the Original Motion] due to Cross-Defendants’ statements that supplemental disclosures and productions would be made.” (See Footnote 7 above). The evidence is as follows: -8- OMNIBUS OPPOSITION TO FIVE FOUR’S MOTION TO COMPEL RESPONSES TO WRITTEN DISCOVERY A L P E R T L A W G R O U P , A P C 16 13 3 Ve nt ur a Bo ul ev ar d, Su it e 11 80 En ci no , Ca li fo rn ia 91 43 6 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1. In May 19, 2016 the Original Motion was filed. RFTJIN, Exhibit “A”. ii. On May 26, 2016 the Opposition was filed to the Original Motion. RFTJN, Exhibit “B”. iil. On June 1, 2016, Mr. Huber’s office notified Mr. Alpert that because the Original Motion was filed late, FiveFour vacated the June 9, 2016 hearing date and continued it to June 30, 2016, and FiveFour would be refilling the moving papers reflecting the same. J. Alpert Dec. 422, Exhibit “O”. iv. On June 21, 2016, Mr. Alpert’s office received notice that FiveFour had vacated its Motion to Compel. J. Alpert Dec. 4 42, Exhibit “Y”. V. On June 20, 2016 National Merchant Center, Inc. voluntarily mailed a CD of document productions. J. Alpert Dec. 38, Exhibit “W”. vii. ~~ On June 30, 2016 Mr. Huber claims that he finally received the production mailed to him on June 20, 2106. J. Huber Dec. 13:9. The fact is that Mr. Huber vacated his Original Motion because it was wholly defective. There is no logic to removing a motion to compel discovery when one has not yet received production. This is clearly a further attempt by Mr. Huber to recreate the wheel and revive the Original Motion. 6. FiveFour And Its Counsel Should Be Sanctioned, Jointly and Severally, In The Amount of $13,100.00. The court may award sanctions for (1) misuse and/or abuse of the discovery process; (2) unsuccessfully bringing or opposing a discovery motion; (3) failure to meet and confer. C.C.P. §2023.010, 2023.020, 2023.030(a), 2030.300(d), 2031.320(b), and 2033.290(d). The Motions are clearly improper, and not brought in good faith other than to improperly revive the Original Motion. Mr. Huber was so advised by Mr. Alpert and has still refused to take these matters off calendar. As such, the Court should issue sanctions against FiveFour and its counsel, jointly and severally in the amount of $13,100.00. J. Alpert Dec. 9 73-75. 1 I 9. OMNIBUS OPPOSITION TO FIVE FOUR’S MOTION TO COMPEL RESPONSES TO WRITTEN DISCOVERY A L P E R T L A W G R O U P . A P C 16 13 3 Ve nt ur a Bo ul ev ar d. Su it e 11 80 En ci no . Ca li lo rn ia 91 43 6 7 Conclusion. Based on the foregoing. FivelFour’s Motions should be denied and FiveFour and its attorney of record should be sanctioned. jointly and severally, in the amount of $13,100.00, payable to the Alpert Law Group. APC, forthwith. DATED: September 16. 2016 ALPERT LAW GROUP, APC National Merchant Center, Inc., PaymentWorld, LLC, Eugene Shampansky, and Sam Ragnone “10x OMNIBUS OPPOSITION TO FIVE FOUR’S MOTION TO COMPEL RESPONSES TO WRITTEN DISCOVERY A L P E R T L A W G R O U P . A P C 16 13 3 Ve nt ur a Bo ul ev ar d. Su it e 11 80 En ci no . Ca li fo rn ia 91 43 6 ro £ O e N N N Wn PROOF OF SERVICE STATE OF CALIFORNIA, COUNTY OF LOS ANGELES [ 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 16133 Ventura Boulevard, Suite 1180, Encino, California 91436. On September 16, 2016, I served the foregoing document described as: NATIONAL MERCHANT CENTER, INC., PAYMENTWORLD LLC, AND EUGENE SHAMPANSKY’S JOINT OMNIBUS OPPOSITION TO DEFENDANT AND CROSS-COMPLAINANT FIVE FOUR GROUP LLC’S MOTION FOR AN ORDER TO COMPEL RESPONSES TO WRITTEN DISCOVERY XXX Delivering a true copy thereof enclosed in a sealed envelope addressed as follows: James C. Huber Global Legal Law Firm 5411 Avenida Encinas, Suite 280 Carlsbad, CA 92008 [ ] (BY MAIL) I deposited such envelope with postage thereon fully prepaid in the United States mail at Encino, California. [ ] (HAND DELIVERY) I delivered the above listed document by personally delivering a copy to: name of party and address, at : am/pm [v ] (BY ELECTRONIC TRANSMISSION) I caused all of the above-entitled document(s) to be served on counsel of record by transmission to One Legal addressed to all parties appearing on the One Legal electronic service list on the date executed below. The file transmission was reported as complete and a copy of the filing receipt page will be maintained with the original document(s) in our office. [ 1 (BY ELECTRONIC MAIL) I caused the above referenced document to be transmitted via electronic mail from the e-mail address candice@alpertlawgroup.com to the persons at the email address listed above. 1 did not receive, within a reasonable time after the transmission, any electronic message or other indication that the transmission was unsuccessful. [ ] (BY FEDERAL EXPRESS) I caused such envelope to be deposited in a Federal Express drop off box at Encino. California. XXX I declare under penalty of perjury under the laws of the State of California that the above is true and correct. Executed on September 16, 2016, at Encino, California. BY (dite DO— CANDICE DIXON i= OMNIBUS OPPOSITION TO FIVE FOUR’S MOTION TO COMPEL RESPONSES TO WRITTEN DISCOVERY