Reply_to_oppositionReplyCal. Super. - 4th Dist.March 2, 2018O O 0 N N ON Un BRA W N ID N o ND N N N = = = = em em e m e m e s © J O N nn BR W D = O C N N R E L = LAWRENCE J. DREYFUSS, Bar No. 76277 BRUCE DANNEMEYER, Bar No. 107243 THE DREYFUSS FIRM REA ENE al Corona A Professional Law Corporation County of Orange 2 Venture, Suite 450 10/18/2018 at 04:32:00 PM Irvine, California 9261 8 Clerk of the Superior Court (949) 727-0977; Facsimile (949) 450-0668 By e Clerk, Deputy Clerk Attorneys for defendant BART SILBERMAN SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF ORANGE Case No.: 30-2018-00976878 Judge Geoffrey T. Glass Department C31 ROBERT ANTHONY PONE, Plaintiff, REPLY TO OPPOSITION TO DEFENDANT'S MOTION TO COMPEL FURTHER RESPONSE TO DEMAND FOR PRODUCTION OF DOCUMENTS VS. BART SILBERMAN: and DOES 1 to 5. Defendants. Date: October 29, 2018 Time: 1:30 p.m. Dept.: C31 Factually, plaintiff is incorrect/incomplete in describing the facts underlying this action. The actual events were as follows. In August 2013, plaintiff Robert Pone loaned Moonlight Graham of Orange, LLC (“Moonlight Graham™) $24,925. That company operated retail stores. At the time, plaintiff owned 48% of that company. Defendant Bart Silberman (“Silberman”) owned 17.5%. Moonlight Graham made several monthly payments to plaintiff. However, in early 2014, when the Christmas season did not go as well as planned, plaintiff got nervous about Moonlight Graham's ability to repay the loan. He then approached Silberman, who was involved in store operations, and asked him to personally guaranty repayment of the loan. Plaintiff pleaded that he got the money for the loan to Moonlight Graham from CashCall, which charged outrageous interest of 35.87%. If Moonlight Graham didn’t make the monthly payments, the CashCall interest would devastate plaintiff. He needed protection. Besides, the REPLY TO OPPOSITION TO DEFENDANT'S MOTION TO COMPEL FURTHER RESPONSE TO DEMAND FOR PRODUCTION OF DOCUMENTS 1 NO © NN A N Un BR W N N S N N N N N N N N N = e m em e m e m p m e m e m t e d RX NN A N nh B W = O 0 d N RA R W O N = o CashCall loan benefitted both of them since both were owners of Moonlight Graham. Because of their friendship, Silberman agreed to personally guaranty half the loan. Plaintiff prepared a promissory note to document the personal guaranty. That promissory note, a copy of which is attached to the complaint in this action, states Silberman will pay 50% of $24,925 plus interest at 35.87% if Moonlight Graham does not make the $767.44 monthly payments on the $24,925 loan. The note recites that the loan to Moonlight Graham calls for 120 monthly payments, of which 8 have been made. The figures in the promissory note exactly match those in the CashCall loan. Principal (824.925), interest rate (35.87%), term (120 months), and monthly payment ($767.44) are identical. The promissory note, which is dated March 4, 2014, does not use the word “CashCall”, but it does refer to the “original loan” reciting that the first monthly payment was in September 2013 and that 8 payments have been made through March 1, 2014. Plaintiff filed this action March 2, 2018 seeking $90,000 in damages. (The promissory note attached to the complaint is for $12,462.50, 50% of loan to Moonlight Graham.) Silberman’s defenses include lack of consideration (the personal guaranty was made months after the loan), usury, and laches. Plaintiff wants to eliminate those defenses by refusing discovery on those issues, then giving the false impression in the opposition to the motion to compel that this is a simple case. The requested documents in question center on the CashCall loan (e.g. correspondence between CashCall and plaintiff, plaintiff's file for the CashCall loan, plaintiff's payments on the CashCall loan) and plaintiff's loan to Moonlight Graham (e.g. correspondence regarding the CashCall loan between plaintiff and Moonlight Graham and between plaintiff and Silberman). The requests are narrowly drawn and focused. The documents have a direct bearing on Silberman’s defenses. Most importantly, plaintiff has exclusive control of the documents. If Silberman does not get them from plaintiff, Silberman will not get them at all. By producing only the promissory note attached to the complaint, plaintiff is preventing Silberman from obtaining critical evidence for his defenses. REPLY TO OPPOSITION TO DEFENDANT'S MOTION TO COMPEL FURTHER RESPONSE TO DEMAND FOR PRODUCTION OF DOCUMENTS 2 S S © © N A Un RA W O N B R N BN O N BN N O N O N O R s s e m e s R e e a e d e d b e d R E e d © N A A Lh A W N = O V O N N N W R W N Legally. the opposition raises two issues. First, plaintiff's objections. All objections were waived because the response was served July 20. 2018, 35 days after the demand for production was served by email. Service by email added 2 days to the response deadline. (Cal. Rule of Court, Rule 2.251(h).) And plaintiff did agree to accept service by email. California Rule of Court 2.251(b)(1) reads in relevant part: “A party indicates that the party agrees to accept electronic service by: ... or (B) Electronically filing any document with the court.” Efiling is mandatory in Orange County. Plaintiff efiled his complaint. Plaintiff, therefore, agreed to accept electronic service. The second legal issue is whether plaintiff is the sole judge of what is relevant or reasonably calculated to lead to the discovery of admissible evidence. Information sought in discovery must be relevant to the subject matter of the action. (Code Civ. Proc.. §2017.010.) “The phrase ‘subject matter” does not lend itself to precise definition. It is hroader than relevancy to the issues (which determines admissibility of evidence at trial).” (Weil & Brown, Cal. Prac. Guide: Civ. Proc. Before Trial (The Rutter Group 2010) § 8.66 (emphasis in original).) “For discovery purposes, information should be regarded as ‘relevant’ to the subject matter if it might reasonably assist a party in evaluating the case, preparing for trial, or facilitating settlement.” (Id. at § 8.66.1 (emphasis in original).) Permissible discovery is broadened further by making discoverable matters “reasonably calculated to lead to the discovery of admissible evidence.” (Code Civ. Proc., § 2017.010.) The scope of discovery is liberal, extending beyond plaintiff’s definition of relevance. A leading treatise has summarized: “The ‘relevance to the subject matter’ and ‘reasonably calculated to lead to discovery of admissible evidence’ standards are applied liberally. Any doubt is generally resolved in favor of permitting discovery, particularly where the precise issues in the case are not yet clearly established.” (Weil & Brown, Cal. Prac. Guide: Civ. Proc. Before Trial (The Rutter Group 2010) § 8.71 (emphasis added).) Plaintiff cannot hamstring Silberman’s defense by self-proclaiming CashCall and Moonlight Graham to be irrelevant. REPLY TO OPPOSITION TO DEFENDANT’S MOTION TO COMPEL FURTHER RESPONSE TO DEMAND FOR PRODUCTION OF DOCUMENTS 3 OO 00 9 O N n n Bs W N 0 ~ aN [ 2 + Ww No — OS O =e ] ~ aN Wn += Ww No i S The opposition claims plaintiff did not indicate an inability to comply with the request, and thus he need not describe why he cannot comply. Such an argument is contrary to Code of Civil Procedure section 2031.210(a). That section gives a party only three options in responding to a demand for production of documents: (1) A statement that the party will comply ... (2) A representation that the party lacks the ability to comply ... [or] (3) An objection ....” Plaintiff created his own, a response outside the specified options. Plaintiff's equivocal response left Silberman hanging. The actual wording of plaintiff’s response was “Plaintiff produces the attached documents at this time.” (Actually only one document, the promissory note attached to the complaint, was produced.) A demand for production of documents serves two purposes: receipt of the documents themselves and receipt of a verified statement on whether a party has the requested documents. True, plaintiff produced a copy of the promissory note. But plaintiffs response did not fulfil the second, equally important, purpose of a response to a demand for production of documents. Plaintiff did not give any indication of whether he had in his possession, custody, or control other responsive documents. He did not indicate whether the requested documents never existed, have been destroyed, have been lost, misplaced or stolen, or have never been, or are no longer, in his possession. custody, or control. (Code Civ. Proc., § 2031.230.) Silberman is entitled, at this stage of the litigation, to assess the strength or weakness of his defenses. A significant part of that assessment depends on whether plaintiff has documents concerning the CashCall loan and his loan to Moonlight Graham. Silberman’s approach to settlement and trial will be dictated by the strength or weakness of his defenses. Sanctions are warranted. The opposition cites no authority for the argument that plaintiff can define what is relevant and produce only those documents that fall within his definition. The opposition cites no authority for the proposition that he need not follow Code of Civil Procedure section 2031.230’s requirement that a response explain why a party cannot comply. Silberman’s counsel bent over backward to get plaintiff to provide a response that complied with the code: sending several meet and confer emails. speaking on the phone with plaintiffs counsel, extending the time for an amended response. Plaintiff's counsel promised REPLY TO OPPOSITION TO DEFENDANT'S MOTION TO COMPEL FURTHER RESPONSE TO DEMAND FOR PRODUCTION OF DOCUMENTS 4 S S OO 0X NN NN nN BR W N N N N N N N N O N RN mm em em e m e m em h m e d e d pe © NN A N nn A W N = O O N N N BR W N an amended response, but did not provide one. There is no substantial justification for plaintiff’s position. Sanctions in the amount sought, $1.535, are warranted. DATED: October 18,2018 Respectfully submitted, THE DREYFUSS FIRM A Professional Law Corporation ) by zr | erg, Bruce Dannemeyer = Attorneys for Defendant Bart Silberman REPLY TO OPPOSITION TO DEFENDANT'S MOTION TO COMPEL FURTHER RESPONSE TO DEMAND FOR PRODUCTION OF DOCUMENTS 5 20 21 22 23 24 25 26 27 28 PROOF OF SERVICE (By Mail) (CCP Section 1013a(3)) I am over the age of 18, and I am not a party to the within action. I am employed by THE] DREYFUSS FIRM. PLC, in the County of Orange, at 2 Venture, Suite 450, Irvine, CA 92618. On October 18, 2018, I served the attached: REPLY TO OPPOSITION TO DEFENDANT’S MOTION TO COMPEL FURTHER RESPONSE TO DEMAND FOR PRODUCTION OF DOCUMENTS on the interested parties in this action by placing true copies thereof in sealed envelopes, addressed as follows: Shayne L. Wulterin Attorneys for Plaintiff Robert Anthony Ford, Walker, Haggerty & Behar Pone One World Trade Center, 27" Floor Long Beach, CA 90831-2700 Tel: (562) 983-2500 Email: Shayne@fwhb.com [ 1] (ByMail) I placed said envelopes for collection and mailing, following ordinary business practices, at the business offices of THE DREYFUSS FIRM, PLC at the address set forth above, for deposit in the United States Postal Service. I am readily familiar with the practice of THE DREYFUSS FIRM, PLC for collection and processing of correspondence for mailing with the United States Postal Service, and said envelopes will be deposited with the United States Postal Service on said date in the ordinary course of business. I am aware that on motion of the party served, service is presumed invalid if postal cancellation date or postage meter date is more than one day after date of deposit for mailing in affidavit. [] (By Electronic Service — via electronic filing service provider) By electronically] transmitting the document(s) listed above to OneLegal File and Serve, an electronic filing service provided at www.onelegal.com. The document(s) was/were served electronically and the transmission was reported as complete and without error. 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. I declare, under penalty of perjury under the laws of the State of California, that the above is true and correct Executed on October 18, 2018, at L- Laura “T)
