Makemsons_reply_in_support_of_motion_to_compel_productionReplyCal. Super. - 4th Dist.May 19, 2017TH E M Y E R S LA W G R O U P 4 EX EC UT IV E CI RC LE , SU IT E 10 0 IR VI NE , CA LI FO RN IA 92 61 4 AN nn Bx W N 10 11 12 13 14 13 16 17 18 19 20 21 22 23 24 23 26 27 28 Nicholas D. Myers (State Bar No. 251809) Anthony W. Burton (State Bar No. 265865) Anna Karenina P. Adraneda (State Bar No. 315672) ELECTRONICALLY FILED THE MYERS LAW GROUP Superior Court of California, 4 Executive Circle, Suite 100 County of Orange Irvine, California 92614 10/22/2018 at 06:41:00 PM T: 949.825.5590 Clerk of the Superior Court F: 949.861.6220 By e Clerk. Deputy Clerk E: litigation @themyerslg.com Attorneys for Plaintiffs Rowena G. Walden and Jay Makemson, Jr. IN THE SUPERIOR COURT OF CALIFORNIA FOR THE COUNTY OF ORANGE-CENTRAL JUSTICE CENTER ROWENA G. WALDEN, and JAY D. Case No. 30-2017-00921439-CU-OE-CJC MAKEMSON Jr., derivatively on behalf of Assign Fie All Purposes tos MOBILITY EXCHANGE, LLC; ROWENA Judge: Hon. Linda S. Marks G. WALDEN, an individual; and JAY D. Dept.: C-10 MAKEMSON Jr., an individual, Complaint Filed: May 19, 2017 Plaintiffs, Trial Date: April 8, 2019 PLAINTIFF JAY D. MAKEMSON’S REPLY V. IN SUPPORT OF MOTION TO COMPEL FURTHER RESPONSES AND PRODUCTION RON PATTERSON. an individual: OF DOCUMENTS FROM RON PATTERSON MOBILITY EXCHANGE, LLC, a AND FOR MONETARY SANCTIONS Delaware limited liability company authorized to do business in California; and pate: oa DOES 1 th h 20, inclusive, me: : «VL. Tous fmetsive Location: Dept. C10 Defendants, Re servation No.: 72874189 and MOBILITY EXCHANGE, LLC, a Delaware limited liability company authorized to do business in California, Nominal Defendant. 1 REPLY IN SUPPORT OF MOTION TO COMPEL FURTHER RESPONSES AND PRODUCTION OF DOCUMENTS 4 EX EC UT IV E CI RC LE , SU IT E 10 0 TH E M Y E R S LA W G R O U P IR VI NE , C A L I F O R N I A 9 2 6 1 4 AN nn Bx W N 10 11 12 13 14 13 16 17 18 19 20 21 22 23 24 23 26 27 28 MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION Defendant in his opposition makes arguments which revolve around untrue statements and does nothing more than mislead the Court. Defendant failed to provide Code-compliant responses despite Plaintiff’s meet and confer efforts which detailed factual and legal reasons why further responses are necessary. Despite Plaintiff’s willingness to grant additional time for Defendant to respond to Plaintiff’s meet and confer letter and provide proper responses, Defendant regrettably refused to do so. Plaintiff further points to the Court’s attention to Defendant’s unnecessary separate statement which was concurrently filed with Defendant’s opposition. Defendant’s separate statement incorrectly argues the content of Plaintiff’s separate statement. Defendant argues that Plaintiffs separate statement addresses Defendant’s initial discovery responses when in fact Plaintift’s separate statement does not. Instead, Plaintiff’s separate statement properly and appropriately addresses Defendant’s deficient further responses, the responses which are the subject of this motion. This can be further corroborated by Defendant’s initial and supplemental responses which are attached to the Declaration of Anthony W. Burton filed concurrently with Plaintiff’s discovery motion. IL. DEFENDANT’S RESPONSES ARE NOT CODE COMPLIANT A. Defendant’s Responses Fail to Comply with California Code of Civil Procedure § 2031.220 A proper response to requests for production requires the responding party to state whether their compliance will be made in whole or in part. California Code of Civil Procedure § 2031.220. Instead, Defendant provides a litany of baseless and improper objects and indicate that “Documents responsive to [the] request are produced [therewith],” and/or that “Documents responsive to the request are produced [therewith]. Discovery is ongoing. Defendant reserves the right to supplement this production as additional information becomes known.” Unfortunately, such responses are not Code-compliant and are thus improper. Through Plaintiff’s meet and confer letters, Plaintiff details to Defendant legal and factual reasons why Defendant’s objections are unjustified and what responses would be proper and appropriate. To be clear, Plaintiff specifically requested for Defendant to 2 REPLY IN SUPPORT OF MOTION TO COMPEL FURTHER RESPONSES AND PRODUCTION OF DOCUMENTS 4 EX EC UT IV E CI RC LE , SU IT E 10 0 TH E M Y E R S LA W G R O U P IR VI NE , C A L I F O R N I A 9 2 6 1 4 AN nn Bx W N 10 11 12 13 14 13 16 17 18 19 20 21 22 23 24 23 26 27 28 indicate whether Plaintiff’s compliance (document production) was in full or in part, or in other words whether all documents responsive to Plaintiff’s requests have been produced or if they were not produced for any reason as required by the Code. Despite Plaintiff’s meet and confer efforts requesting the very information which are the subject of this motion to compel, Defendant refused to provide Code-compliant responses. Such requirement is necessary as it allows Plaintiff to know whether Plaintiff’s discovery requests have been fully complied with, or if the documents never existed, whether the documents are in the possession of another party, or if they have been lost, misplaced, stolen, or destroyed or are being held on the basis of privilege. California Code of Civil Procedure §§2031.210(a)(2), 2031.230. B. Defendant Fails to Organize and Label their Documents Pursuant to California Code of Civil Procedure § 2031.280 Defendant also fails to comply with California Code of Civil Procedure § 2031.280 as Defendant failed to organize and label documents consistent with the categories contained in the demand. Without complying with this requirement, it is unclear to Plaintiff which requests Defendant’s documents are responsive to, if any. C. Defendant’s Assertion of Privilege Must Accompany a Privilege Log Defendant cannot blanketly assert privilege to avoid producing documents responsive to the request. Instead, Defendant is required to provide a privilege log which includes a specific and factual description of documents in support of the claim of privilege, which will allow a court to evaluate the merits of the claim. Best Prods. v. Superior Court. (2d Dist. 2004) 119 Cal. App.4™" 1181, 1188-89. III. DEFENDANT’S UNNECESSARY AND FALSE SEPARATE STATEMENT IS MISLEADING Defendant chose to flood the Court’s docket with a separate statement which is not only unnecessary but is completely false and misleads the Court. In response to Plaintiff's separate statement, Defendant provides the following statement: “CRC Rule 3.1020 (a) (1)-(3) specifically apply to motions to compel further responses to discovery requests. CRC Rule 3.1020 (c) mandates that the “separate statement must be full and complete so that no person is required to review any other document in order to determine the full request and full response. Specifically, the separate statement must include, inter alia, the original text of the request, 3 REPLY IN SUPPORT OF MOTION TO COMPEL FURTHER RESPONSES AND PRODUCTION OF DOCUMENTS 4 EX EC UT IV E CI RC LE , SU IT E 10 0 TH E M Y E R S LA W G R O U P IR VI NE , C A L I F O R N I A 9 2 6 1 4 AN nn Bx W N 10 11 12 13 14 13 16 17 18 19 20 21 22 23 24 23 26 27 28 interrogatory, question or inspection demand, the text of the response, and any further responses or answers. Plaintiff’s separate statement is defective and does not comply with the above requirements. In violation of California Rules of Court 3.1020 (c), the separate statement served by Plaintiffs is not full and complete. Plaintiff only included defendant’s initial response to these requests, but not defendant’s supplemental response which were served on June 15, 2018. Due to Plaintiff’s failure to accurately present defendant’s full and complete responses to discovery, plaintiff’s separate statement is invalid. Therefore, the court cannot weigh the merits of the case because plaintiff has not filed a valid separate statement as required by law. 2 Defendant unfortunately wastes the Court’s time by making such fallacious statements. Plaintiffs separate statement identifies the specific requests at issue and identified Defendant’s supplemental responses which were served on June 15, 2018, and Defendant’s responses which are at issue, not Defendant’s initial responses. Plaintiff further provides the legal and factual basis giving rise to the need for an appropriate and proper response as required by the Code. Thus, Defendant’s separate statement should be given no weight as it mischaracterizes Plaintiff’s separate statement and wholly misleads the Court. IV. PLAINTIFF PROPERLY MET AND CONFERRED Defendant argues that Plaintiff failed to “comply with the spirit of the code,” and further complains of the page count of Plaintiff’s meet and confer efforts but fails to acknowledge that Plaintiff’s meet and confer correspondences were lengthy as a result of the legal and factual basis provided to show why further and complete responses are warranted. Defendant further ignores the fact that had Defendant provided Code-compliant responses at the onset, Plaintiff’s meet and confer letters and the present discovery motion would be unnecessary. Defendant also incorrectly suggests that Plaintiff had a burden to explain reasons why Plaintiff would not respect Defendant’s objection, where oddly no such burden exists. Plaintiff’s meet and confer correspondences detailed why Defendant’s objections were baseless and improper, and why further responses are necessary in efforts to informally resolve all discrepancies with Defendant’s responses. See California Code of Civil Procedure §2016.040. Still more, through Plaintiff's meet and confer letters, Plaintiff explained to Defendant the type of responses and information which would be appropriate as required by the Code, but instead Defendant stated in their August 3, 2018 reply letter that no further responses would be provided. If Defendant had provided Code- 4 REPLY IN SUPPORT OF MOTION TO COMPEL FURTHER RESPONSES AND PRODUCTION OF DOCUMENTS 4 EX EC UT IV E CI RC LE , SU IT E 10 0 TH E M Y E R S LA W G R O U P IR VI NE , C A L I F O R N I A 9 2 6 1 4 AN nn Bx W N 10 11 12 13 14 13 16 17 18 19 20 21 22 23 24 23 26 27 28 compliant responses, a task it was required to do under the Discovery Act, the present discovery motion would be unnecessary. V. PLAINTIFF’S MOTION TO COMPEL IS WARRANTED Defendant’s suggest that by providing responses such as “Documents responsive to [the] request are produced [therewith];” and “Documents responsive to the request are produced [therewith]. Discovery is ongoing. Defendant reserves the right to supplement this production as additional information becomes known” are “extensive supplemental responses” when in fact they are not. Plaintiff’s meet and confer efforts detailed the type of information necessary for Defendant’s responses to be Code- compliant, yet Defendant ignored such meet and confer efforts and instead chose to provide further incomplete and non-Code-complaint responses. Accordingly, Plaintiff sent yet another meet and confer letter detailing the same deficiencies in Defendant’s discovery responses. In response thereto, Defendant explicitly refused to provide further responses. VI. PLAINTIFF’S MOTION TO COMPEL IS PROCEDURALLY PROPER Defendant wrongfully suggests that Plaintiff’s separate statement concurrently filed with Plaintiff’s motion to compel is deficient. Defendant is wrong yet again. It seems that Defendant fails to recognize which deficient responses were provided initially and which deficient response were provided in response to Plaintiff's April 4, 2018 meet and confer correspondence. Defendant incorrectly states that Plaintiff’s separate statement “makes no mention of any supplemental responses” when, as discussed above, this is plainly untrue. Under the California Rules of Court Rule 3.1345 (c) as cited by Defendant, “A separate statement is a separate document filed and served with the discovery motion that provides all the information necessary to understand each discovery request and all the responses to it that are at issue...” Here, Plaintiff did exactly what it was required to under the California Rules of Court Rule 3.1345 (c) by identifying the requests at issue, identifying Defendant’s deficient responses, and detailing the factual and legal reasons why information requested is necessary and relevant to the matter. Lastly, Defendant’s reference to the Court of Appeal’s ruling in Neary v. Regents of University of California (1986) 185 Cal.App.3d 1136 with respect to the plaintiff’s motion to compel is unmoving and largely distinguishable. In Defendant’s opposition, Defendant misguides the Court > REPLY IN SUPPORT OF MOTION TO COMPEL FURTHER RESPONSES AND PRODUCTION OF DOCUMENTS 4 EX EC UT IV E CI RC LE , SU IT E 10 0 TH E M Y E R S LA W G R O U P IR VI NE , C A L I F O R N I A 9 2 6 1 4 AN nn Bx W N 10 11 12 13 14 13 16 17 18 19 20 21 22 23 24 23 26 27 28 by referencing the Court of Appeals’ decision in Neary which held that the court should not consider a motion to compel if such motion is not accompanied by a separate statement. This is distinguishable from the present motion as the plaintiff in Neary completely failed to include a separate statement with their discovery motion altogether. Whereas in the present case, Plaintiff’s motion is accompanied by a full and complete separate statement as required by the California Rules of Court Rule 3.1345, detailing the requests at issue, Defendant’s deficient responses, and factual and legal basis for why information requested is necessary. Even if the Court were to find Plaintiff’s discovery motions procedurally deficient, which the Court should not, Plaintiff notes that the plaintiff in Neary were still provided with another opportunity to make another motion to compel. Plaintiff’s motion to compel is Code-complaint and proper as it properly comports to the requirements set forth in California Rules of Court Rule 3.1345 and properly identifies the requests at issue, Defendant’s deficient responses, and the reasons why information requested is necessary and relevant to the matter. Thus, Defendant’s argument suggesting deficiencies are untrue and should be given no weight. VII. SANCTIONS ARE APPROPRIATE AS REQUESTED Discovery motions would be unnecessary had Defendant made good faith and reasonable efforts to provide complete and Code-compliant responses to Plaintiff’s discovery requests. Plaintiff has fully detailed the amount of sanctions requested, the parties whom sanctions are requested against, and the calculation of such amount. Plaintiff’s sanction request is not limited to Plaintiff’s discovery motion as Defendant wrongfully argues, but also includes Plaintiff’s meet and confer efforts, the preparation of Plaintiff’s discovery motion, the review of Defendant’s opposition, the preparation of this reply brief, travel time and attendance at an oral hearing. Thus, Plaintiff’s requests for discovery sanctions are reasonable and procedurally proper. 111 111 111 111 6 REPLY IN SUPPORT OF MOTION TO COMPEL FURTHER RESPONSES AND PRODUCTION OF DOCUMENTS 4 EX EC UT IV E CI RC LE , SU IT E 10 0 TH E M Y E R S LA W G R O U P IR VI NE , C A L I F O R N I A 9 2 6 1 4 ~N O N Ln BA W N 10 11 12 13 14 13 16 17 18 19 20 21 22 23 24 23 26 27 28 VIII. CONCLUSION Based upon the foregoing, Plaintiff respectfully requests that this Court grant this motion to compel further verified responses and production of documents set forth in the discover motion. Date: October 22, 2018 THE MYERS LAW GROUP =e Anthony W. Blurton Attorneys for Plaintiffs Rowena G. Walden and Jay Makemson, Jr. 7 REPLY IN SUPPORT OF MOTION TO COMPEL FURTHER RESPONSES AND PRODUCTION OF DOCUMENTS AN nn BA W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 27 28 PROOF OF SERVICE I am employed in the County of Orange, State of California. I am over the age of eighteen years and not a party to the within action. My business address is 4 Executive Circle, Suite 100, Irvine, California 92614. On October 22, 2018 I caused the attached document entitled PLAINTIFF JAY D. MAKEMSON’S REPLY IN SUPPORT OF MOTION TO COMPEL FURTHER RESPONSES AND PRODUCTION OF DOCUMENTS FROM RON PATTERSON AND FOR MONETARY SANCTIONS on the interested parties to this action by placing a true and correct copy of the original in a sealed envelope addressed as follows: Robert F. Tyson Steve Markowitz, Esq. Regina Silva Cruser, Mitchell, Novitz,Sanchez, Gaston & TYSON & MENDES LLP Zimet, LLP 5661 La Jolla Boulevard 800 Wilshire Boulevard, Suite 1400 La Jolla, CA 92037 Los Angeles, CA 90017 Tel: (858)459-4400 T: 231.689.8500 E: rsilva@tysonmendes.com E: smarkowitz@cmlawfirm.com Counsel for Defendants Ron Patterson . Counsel for Mobility Exchange LLc [ X] BY MAIL: I am “readily familiar” with The Myers Law Group’s practice for collecting and processing correspondence for mailing with the United States Postal Service. Under that practice, it would be deposited with the United States Postal Service that same day in the ordinary course of business. Such envelope(s) were placed for collection and mailing with postage thereof fully prepaid at Irvine, California, on that same day following ordinary business practices. CCP Section 1013(b) [ 1 BY FACSIMILE: Before 5:00 p.m. on said date, I caused said document(s) to be transmitted by facsimile. The telephone number of the sending facsimile machine was (949) 251- 4604. The name(s) and facsimile machine telephone number(s) of the person(s) served are set forth in the service list. The document was transmitted by facsimile transmission and the sending facsimile machine properly issued a transmission report confirming that the transmission was complete and without error. CRC Rule 2.306 [ 1 BY OVERNIGHT DELIVERY: I deposited such document(s) in a box or other facility regularly maintained by the overnight service carrier, or delivered such document(s) to a courier or driver authorized by the overnight service carrier to receive documents, in an envelope or package designated by the overnight service carrier with delivery fees paid or provided for, addressed to the person(s) being served. CCP Section 1013(b) [ 1 BY ELECTRONIC SERVICE. Based on a court order or agreement of the parties to accept electronic service, I caused the documents to be sent to the persons at the electronic service addresses listed on the attached service list. I declare under penalty of perjury under the laws of the State of California that the above is true and correct. Executed on October 22, 2018 at Irvine, California. Samantha Thomas 1 PROOF OF SERVICE
