Harry Berkowitz vs. Nicholas 'Nick' Delfranco

Motion to Compel Answers to Request for Admissions

Cal. Super. - 4th Dist.August 3, 2016

R N S N n n \ O 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 John Y. Igarashi, Esq. (SBN 180118) LAW OFFICES OF JOHN Y. IGARASHI, A PROFESSIONAL CORPORATION 18021 Cowan Irvine, CA 92614 Tel: (949) 667-0150 Attorneys for Plaintiff, HARRY BERKOWITZ SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF ORANGE, CENTRAL JUSTICE CENTER, UNLIMITED HARRY BERKOWITZ, Plaintiff, VS. NICHOLAS “NICK” DELFRANCO, an individual; TOM DELFRANCO, an individual; HYDROPONICS HOUSE, LLC, a Michigan limited liability company; JP MORGAN CHASE BANK, N.A., a Delaware corporation; and DOES 1 to 10, Defendants. ) ) 5 ) ) ) ) ) ) ) ) ) ) ) ) ) ) | ) ) ) ase No. 30-2016-00867487C Assigned for All Purposes to: The Honorable Derek W. Hunt Department C-23 NOTICE OF MOTION AND MOTION TO HAVE MATTERS IN REQUEST FOR ADMISSIONS DEEMED ADMITTED AND FOR SANCTIONS IN THE SUM OF $2,487.95 AGAINST NICHOLAS DELFRANCO AND JASON CRUZ, ESQ.; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF JOHN Y. IGARASHI IN SUPPORT THEREOF (Reservation No. 72581889) DATE: May 30, 2017 TIME: 8:30 a.m. DEPT: C-23 Action Filed: August 3, 2016 Trial Date: November 27, 2017 TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD: | YOU ARE HEREBY NOTIFIED that, on May 30, 2017, at 8:30 a.m., or as soon thereafter as the matter can be heard in Department C-23 of the above-named court, located at 700 Civic Center Drive West, Santa Ana, California, Defendants will move this Court for an order deeming matters within Request for Admissions from - -1- MOTION TO HAVE MATTERS IN RFA’S DEEMED ADMITTED ® w a O 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 plaintiff to defendant Nicholas Delfranco (Exhibit “1”) deemed admitted; AND ALSO FOR AN ORDER THAT defendant Nicholas Delfranco and his counsel Jason Cruz, Esq., jointly and severally pay a monetary sanction to plaintiff for the reasonable expenses and attorneys' fees incurred by Defendants in connection with this Motion in the sum of $2,487.95. This Motion will be based on this Notice, the Memorandum of Points and Authorities filed herewith, the accompanying Declaration of John Y. Igarashi, the complete files and records in this action, and all other matters and evidence that may be presented at the hearing on this motion. DATED: May 2, 2017 LAW OFFICES OF JOHN Y. IGARASHI, A PROFESSIONAL CORPORATION by — = John Y. Igarashi Attorneys for Plaintiff HARRY BERKOWITZ 2D. MOTION TO HAVE MATTERS IN RFA’S DEEMED ADMITTED «w w a O o 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MEMORANDUM OF POINTS AND AUTHORITIES 1. STATEMENT OF FACTS On February 23, 2017, plaintiff served the following discovery by mail upon defendants: (1) Judicial Council Form Interrogatories (Set One) to Nicholas Delfranco; (2) Judicial Council Form Interrogatories (Set One) to Tom Delfranco; (3) Request for Admissions (Set One) to Nicholas Delfranco; and (4) Request for Admissions (Set One) to Tom Delfranco. Due to the service date and method of service, responses to the written discovery were due on March 30, 2017. On April 13, 2017, plaintiff’s counsel wrote to defense counsel advising that no discovery responses had been received, that objections had been waived, and that verified responses must be served by April 20, 2017 or motionsto compel would be filed. As of May 2, 2017, defendants have served no responses. It is with this backgroundthat plaintiff brings the instant motion to have matters within request for admissions deemed admitted. 2. PLAINTIFF RESPECTFULLY REQUESTS THAT HIS MOTION BE GRANTED A. This Motion to Compel Is Proper Code of Civil Procedure, Section 2033.280(b) provides, in pertinent part, that: If a party to whom requests for admission are directed fails to serve a timely response, the following rules apply: (b) The requesting party may move for an orderthat the genuineness of any documents and the truth of any matters specified in the requests be deemed admitted, as well as for a monetary sanction under Chapter 7 (commencing with Section 2023.010). Code of Civil Procedure, Section 2033.280(b). Plaintiff seeks to obtain information regarding its claims for breach of contract, fraud, and alter-ego. -3- MOTION TO HAVE MATTERS IN RFA’S DEEMED ADMITTED ~ ~ S N u n A 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Pursuant to the Discovery Act, plaintiff has the right to collect evidence supporting or negating his claims. The written discovery thatis the subject of this motion goes to the heart of the dispute. Plaintiff seeksto collect information regarding the factual circumstances surrounding plaintiffs Complaint and defendants’ defenses, B. The Written Discovery at Issue was Within the Scope of Permissible Discovery The scope of discovery is set forth in Code of Civil Procedure, Section 2017.010. That section provides that, [a]ny party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action orto the determination of any motion made in that action, if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence. * * * Code of Civil Procedure, Section 2017.010. Plaintiffis entitled to discover facts and documents supporting his allegations. Through his discovery, plaintiff seeks to discovery the disposition of the money provided by plaintiff to defendants, defendants’ ability and attempts to provide what was promised, and alter-ego allegations. 3. Objectionsto the Written Discovery Have Been Waived. Including Those Based Upon Attorney-Client Privilege and Work Product Code of Civil Procedure, Section 2033.280 provides, in pertinentpart, [i]f 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 2018.010). Code of Civil Procedure, Section 2033.280. /// 4 - MOTION TO HAVE MATTERS IN RFA’S DEEMED ADMITTED N O X a 10 11 12 13 14 15 16 17 18 19 20 21 22 23 25 26 27 28 No responsesat-all have been forthcoming. Therefore,all objections, including claims of privilege and work product, have been waived. Matters within the request for admissions should be deemed admitted without limitation. D. Defendants Are Entitled to Monetary Sanctions for Plaintiff’s Failure to Respond to Written Discovery Code of Civil Procedure, Section 2033.280(c) provides, in pertinent part, 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. Code of Civil Procedure, Section 2033.280(c) (Emphasis added.) Unlike motions to compel pursuant to Code of Civil Procedure, Sections 2025, 2030, and 2031, sanctions are mandatory against the party and attorney who fail to respond. There is no exception for “substantial justification.” Defendants have not produced any responsesto the written discovery. Defendants’ delay is impermissibly impeding plaintiff’s ability to prepare for trial including, but not limited to, the preparation and taking of defendants’ depositions. Pursuant to Code of Civil Procedure, Section 2033.280, sanctions must be issued against defendant Nicholas Delfranco and his attorneys of record, Jason Cruz, Esq., jointly and severally. The total amount of sanctions sought are $2,487.95, and are more fully detailed in the accompanying Declaration of John Y. Igarashi. 11 // 1 11 1 1 /1/ -5- MOTION TO HAVE MATTERS IN RFA’S DEEMED ADMITTED W w ~ N O Y Wi n 10 1 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4. CONCLUSION For the reasons stated herein, plaintiff respectfully requests that his motion be granted. DATED: May 2, 2017 LAW OFFICES OF JOHN Y. IGARASHI, A PROFESSIONAL CORPORATION By: John Y. Igarashi Attorneys for Plaintiff HARRY BERKOWITZ -6- MOTION TO HAVE MATTERS IN RFA’S DEEMED ADMITTED B L N 0 J O N W n — S S N O 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DECLARATION OF JOHN Y. IGARASHI IN SUPPORT OF MOTION TO COMPEL I, John Y. Igarashi, declare as follows: I. I am an attorney duly licensed to practice law in the State of California and before this Court. Iam the attorney of record for Plaintiffin this action. I have personal knowledge of the matters stated herein. If called upon to testify as a witness, I could and would competently testify thereto. 2. On February 23, 2017, plaintiff Berkowitz served upon defendant Nicholas Delfranco, through his counsel of record, the following described Request for Admissions: Name of Propounding Party: Plaintiff Harry Berkowitz Name of Responding Party: Defendant Nicholas Delfranco Set Number: One Service of said Request for Admissions upon said party was made by United States mail at Irvine, California to the following persons: Jason B. Cruz, Esq. LAW OFFICE OF JASON B. CRUZ 18 East State Street, Suite 203 Redlands, California 92373 A true and copy of said Request for Admissionsis attached hereto as Exhibit "1," and incorporated herein by reference. 3. Dueto the service date and method of service, responses to the Request for Admissions were due on March 30, 2017. 4. No responses to the Request for Admissions werereceived on or by March 30, 2017. 5. On April 13, 2017, plaintiff's counsel wrote to defense counsel advising that no discovery responses had been received, that objections had been waived, and that verified responses must be served by April 20, 2017 or motionsto compel would be -7- MOTION TO HAVE MATTERS IN RFA’S DEEMED ADMITTED B W N O 0 N Y Wi n 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 filed. A true and copy of said correspondenceis attached hereto as Exhibit "2," and incorporated herein by reference. 6. As ofMay 2, 2017, defendants have served no responses. 7. The Court should deem the matters within the Request for Admissions admitted, without regard to any claim ofprivilege or work product. 8. As a result of defendant's refusal to provide responsesto Request for Admissions, plaintiff has incurred and/or will incur reasonable expenses and attorneys’ fees in connection with this motion and the hearing thereon. I have expended 1.9 hours in review of the file, in preparation ofthe meet and confer letter, in preparation of the notice of motion, the motion, the memorandum ofpoints and authorities, and this declaration. I anticipate one hour to prepare a reply and 1.5 hours to prepare for and attend the hearing on this motion. I have practiced employment, business, and general litigation in Orange County, California for over twenty-one (21) years. My regular hourly rate is $550.00, which is reasonable for like services in the community in which I practice. In addition, Defendants will incur a $60.00 motion filing fee to the Court, and electronic filing fee of $7.95 for the filing of this motion. The totalis $2,487.95. I declare under penalty ofperjury of the laws of the State of California that there foregoing is true and correct. Executed at Irvine, California. Dated: May 2, 2017 — John Y. Igarashi -8- MOTION TO HAVE MATTERS IN RFA’S DEEMED ADMITTED = ~ w w p o 0 < 0 ~ J j= ) w n 1 12 13 14 5 17 18 19 20 21 22 23 24 25 27 28 John Y. Igarashi, Esq. (SBN 180118) LAW OFFICES OI' JOHN Y. IGARASHI A PROFESSIONAL CORPORATION 18021 Cowan Irvine, CA 92614 Tel: (949) 667-0150 Attorneys for Plaintiff, HARRY BERKOWITZ 5 SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF ORANGE, CENTRAL JUSTICE CENTER, UNLIMITED HARRY BERKOWITZ, Plaintiff, VS. NICHOLAS “NICK” DELFRANCO, an individual; TOM DELFRANCO, an individual; HYDROPONICS HOUSE, LLC, a Michigan limited liability company; JP MORGAN CHASE ase No. 30-2016-00867487C Assigned for All Purposcsto: he Honorable Frederick P. Aguirre epartment C-23 T D REQUEST FOR ADMISSIONS, SET ONE, TO NICHOLAS “NICK” ELFRANCO ) ) ) ) ) ) D J Action Filed: August 3, 2016 ) Trial Date: None Yet Set ) ) ) ) ) ) ) ) BANK, N.A., a Delaware corporation; and DOES 1 to 10, | Defendants. PROPOUNDING PARTY: Plaintiff, HARRY BERKOWITZ, RESPONDING PARTY: Defendant, NICHOLAS "NICK" DELFRANCO SET NUMBER: 0 // © EXHIBIT “1" -1- REQUEST FOR ADMISSIONS, SET ONE, TO NICHOLAS “NICK” DELFRANCO A w p L o w 9 a 10 11 13 14 16 17 18 19 20 21 23 24 25 27 28 REQUEST No, 1. Admit that yoy received $63,250 from plaintiff on or about January 7, 2016.REQUEST NO, 2. REQUEST NO. 3. Admitthat you fepresented to plaintiff that you would provide certain equipmentand supplies pursuant to a list provided by plaintiff. REQUEST No. 4. Admit that, pursuant to your representation, you had the responsibility ofprocuring certain equipment and supplies for plaintiff, REQUEST NO, 5, Admit that you did not procure the equipment and supplies that you wereSupposed to procure. REQUEST NO. 6. were supposed to provide. REQUEST NO. 7. Admit that you did not return any funds to plaintiff, REQUEST No. 8. Admit that youknew that your representation to plaintiff, that You would providecertain equipment and supplies to him, was false at the time You made therepresentation, REQUEST NO. 9. Admit that plaintiff reasonably relied on your representation (that you wouldprovide plaintiff with certain equipment and supplies) to his detriment./1/ “2. REQUEST FOR ADMISSIONS, SET ONE, TO NICHOLAS “NICK? DELFRANCO REQUEST NO. 10. Admit that you are a member of Hydroponics House, 1,LC. VEST NO. 11. RE Admit that you and Hydroponics House, LLC are alter-egos of one another. REQUEST NO. 12. Admit that Hydroponics House, L1.C was undercapitalized whenit was formed. REQUEST NO. 13. Admit that Hydroponics House, LLCis presently undercapitalized. REQUEST NO. 14. Admit that you treated Hydroponics House, LLC’s funds as your own. DATED: February 23. 2017 LAW OFFICES OF JOHN Y. IGARASHI. A PROFESSIONAL CORPORATION a— . rere, By: John Y. Igarashi Attorneys for Plaintiff, HARRY BERKOWITZ “3 REQUEST FOR ADMISSIONS, SET ONE, TO NICHOLAS “NICK” DEI FRANCO [ 5 ] 6 PROOF OF SERVICE STATE OF CALIFORNIA ) COUNTY OF ORANGE ) Fam employed in the County of Orange. State of California. | am over the age of18years, and am not a party 0 the within action; my business address is 18021 Cowan. Irvine,Cahfornia 92614. On the dateherein below specified, I served the foregoing document. deseri bed as settorth below on the mterested parties in this action by placing a true copy thereof enclosed insealed envelopes, at Irvine. California, addressed as follows: DATE SERVED: FEBRUARY 23, 2017 DOCUMENT SERVED: REQUEST FOR ADMISSIONS, SET ONE, TO NICHOLAS“NICK” DELFRANCO COUNSEL SERVED: Jason B. Crug, Esq. LAW OFFICE OF JASON B. CRUZ 18 East State Street, Suite 203 Redlands, California 92373 Facsimile: (909) 792-1144 Telephone: (909) 792-4400 XXX (BY MAIL) | caused a true copy ofthe document(s), placed in a scaled envelopewith postage fully paid. to be placed in the United States mail at Irvine, California,Fam "readily familiar" with the firm's business practice for collection andprocessing of mail. that in the ordinary course of business said document(s) wouldbe deposited with the U.S. Postal Service on that same day. understand that theservice shall be presumed invalid ifthe postal cancellation date is more than oneday after the date of deposit for mailing contained in this affidavit. (BY HAND DELIVERY) I caused to be personally delivered a true and correct copy ofthe document(s) listed above to the named recipient or his/her agent on the date stated. (BY OVERNIGHT DELIVERY) I caused a true copy ofthe document(s) to bedeposited in a box or other facility regularly maintained by an express service carrier, ordelivered to an authorized courierof driver authorized by the express service carrier toreceive documents, in an envelope or package designated bythe ex press service carrierwith delivery fees paid or provided for, addressed as specified above. (BY FACSIMILE) By use offacsimile machine telephone number( 949) 340-2726, I served a copy ofthe documents(s) on the interested parties via theirrespective fax numbers as listed on the attached service list. XXX (STATE)| declare under penalty of perjury under the laws ofthe State of California thatthe above is true and correct. Executed at Irvine, California on February 23, 2017. John Y. Igarashi -1- PROOF OF SERVICE LAW OFFICES OF JOHN Y. IGARASHI A PROFESSIONAL CORPORATION 18021 COWAN,IRVINE, CA 92614 (949) 667-0150 (949) 340-2726 FAX April 13, 2017 SENT VIA TELEFAX AND FIRST-CLASS MAIL (909) 792-1144 Jason B. Cruz, Esq. LAW OFFICE OF JASON B. CRUZ 18 East State Street, Suite 203 Redlands, California 92373 Re: Samen v. Del Franco OCSC Case No. 30-2016-00867487 Counsel, As you are aware, we served written discovery on Nicholas and Tom Delfranco on February 23, 2017. Verified responses were due to be served by March 30, 2017. No responses were served. As such, all objections and claims of privilege have been waived. Please serve responses, verified under Oath, without objections or claims of privilege, by April 20, 2017, so that Court intervention, in the form ofmotionsto compel with sanctions requests, can be avoided. Thank you for your attention to this matter. Very truly yours, LAW OI'ICES OF JOHN Y. IGARASHI, A PROFESSIONAL CORPORATION John Y. Igarashi JYI:gi EXHIBIT 2" W w W h O e 9 o n 10 1 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 PROOF OF SERVICE== I L L STATE OF CALIFORNIA )COUNTY OF ORANGE ) Iam employed in the County of Orange,State of California. Iam over the age of 18 years, and am not a party to the within action; my busi i i Califorome! Yy business address s 18021 Cowan, Irvine, On the date herein below heeified, I'served the foregoing document, described as set forth below on the interested parties in this action by placing a true copy thereof enclosed in sealed envelopes, at Irvine, California, addressed as follows: DATE SERVED: MAY 2, 2017 DOCUMENT SERVED: NOTICE OF MOTION AND MOTION TO HAVEMATTERS IN REQUEST FOR ADMISSIONS DEEMEDADMITTED AND FOR SANCTIONS IN THE SUM OF COUNSEL SERVED: Jason B. Crug, Esq. LAW OFFICE OF JASON B. CRUZ18 East State Street, Suite 203 Redlands, California 92373 Facsimile: (909) 792-1144 Telephone: (909) 792-4400 XXX (BY MAIL) I caused a true copy of the document(s), placed in a sealed envelopewith postage fully paid, to be placed in the United States mailat Irvine, California.Iam "readily familiar" with the firm's business practice for collection and service shall be presumed invalid if the postal cancellation date is more than oneday after the date of deposit for mailing contained in this affidavit. (BY HAND DELIVERY) I caused to be personally delivered a true and correct copy ofthe document(s) listed above to the named recipient or his/her agent on the date stated. (BY FACSIMILE) By use of facsimile machine telephone number (949) 340-2726, 1served a copy of the documents(s) on the interested parties via theirrespective fax numbersas listed on the attached service list. XXX (STATE) I declare under penalty ofperjury under the laws of the State of California thatthe above is true and correct. Executed at Irvine, California on May 2, 2017. — = John Y. Igarashi -1- PROOF OF SERVICE