Reply_iso_of_its_motion_for_relief_re_fi

Reply

Cal. Super. - 4th Dist.April 20, 2018

R O P E R S A Pr of es si on al Co rp or at io n lectronically Filed by Superior Court of California, County of Orange, 07/24/2020 03:26:00 PM. 30-2018-0(1987765-CU-NP-CJ C - ROA #521 - DAVID H. YAMASAKI, Clerk of the Court By e Clerk, Deputy Clerk. 1 | ROPERS MAJESKI PC KATHLEEN MARY KUSHI CARTER #157790 kathleen.carter@ropers.com HEATHER P. KARL #267244 heather.karl@ropers.com 650 Town Center Drive, Suite 1600 Costa Mesa, CA 92626 Telephone (949) 507-6700 Facsimile (213) 312-2001 A N nn W N Attorneys for Defendants SL RESIDENTIAL, INC. AND VANTIS MULTIFAMILY, LLC and Cross- 7 | Complainant SL RESIDENTIAL, INC. 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 COUNTY OF ORANGE 10 § 11 | JORGE PEREZ, an individual, CASE NO. 30-2018-00987765-CU-NP-CJC g 12 Plaintiff, [Honorable Deborah C. Servino; Dept. C-21] oO 13 ly SL RESIDENTIAL, INC.’S REPLY IN | PL EMR HION OR RELIEF 14 aa PARK OBJECTIONS REGARDING PLAINTIFF’S —- , dba FORM INTERROGATORIES, SET ONE; 15 |MECHANICAL; SNYDER LANGSTON MEMORANDUM OF POINTS AND = GL, ca FIDE] 50 AUTHORITIES; DECLARATION OF 0). ; through 50, HEATHER P. KARL LJ Defendant. RELATED TO ROA# 385 = DATE: July 31, 2020 1 ¢ 18 TIME: 10:00 a.m. - DEPT: C-21 19 Complaint Filed: April 20, 2018 Trial Date: January 25, 2021 20 21 Defendant and Cross-Complainant SL Residential, Inc. (“SLR”) hereby respectfully 22 || submits its reply in support of its Motion for Relief From Waiver of Privilege Objections 23 | Regarding Plaintiff’s Form Interrogatories, Set One. 24 1 25 | 1 26 | 1 27 1 28 -1- SL RESIDENTIAL, INC.’S REPLY IN SUPPORT OF ITS MOTION FOR RELIEF FROM WAIVER OF PRIVILEGE OBJECTIONS REGARDING PLAINTIFF'S FORM INTERROGATORIES, SET ONE Co st a M e s a R O P E R S A Pr of es si on al Co rp or at io n ~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 27 28 The issue before the Court is whether Plaintiff’s failure to properly serve SLR’s counsel of record with discovery should result in a waiver of the attorney-client and attorney work product privileges, where SLR had no knowledge of the discovery in order to effect the knowing and intentional waiver required. It should not. Accordingly, and as SLR has served substantive and code-compliant responses to all other discovery, the motion should be granted. Dated: July 24, 2020 ROPERS MAJESKI PC KATHLEEN MARY KUSHI CARTER HEATHER P. KARL Attorneys for Defendants SL RESIDENTIAL, INC. AND VANTIS MULTIFAMILY, LLC and Cross- Complainant SL. RESIDENTIAL, INC. 2 SL RESIDENTIAL, INC.’S REPLY IN SUPPORT OF ITS MOTION FOR RELIEF FROM WAIVER OF PRIVILEGE OBJECTIONS REGARDING PLAINTIFF'S FORM INTERROGATORIES, SET ONE Co st a M e s a R O P E R S A Pr of es si on al Co rp or at io n S E A N nn W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 27 28 MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION Plaintiff failed to properly serve discovery on SLR’s counsel of record. Although Plaintiff was aware of SLR’s new counsel, Parker Ibrahim & Berg (“PIB”), and had received PIB’s Notice of Association of Counsel and Motion for Summary Judgment, Plaintiff chose not to serve PIB with any discovery, and instead waited until the deadline to respond had passed before contacting SLR’s subsequent new counsel, Ropers, Majeski, Kohn & Bentley (“Ropers”)! and inquiring of the responses. SLR itself was unaware that any discovery had been propounded to it and thus, could not possibly have made a knowing and intentional waiver. Plaintiff incorrectly claims that SLR’s responses to his discovery are not code-complaint, when in fact the true nature of the dispute with SLR’s Form Interrogatory Responses is that Plaintiff simply is unhappy with the content of the response. Lastly, Plaintiff should be estopped from seeking to benefit from his own improper service of discovery, which particularly rings true as Plaintiff attempts to misrepresent the initial communication between Plaintiff and Ropers regarding the discovery. II. PLAINTIFF HAS NOT SHOWN A KNOWING AND INTENTIONAL WAIVER BY SLR SLR is the holder of the attorney client privilege, and thus, only SLR can waive the privilege. (Evidence Code § 953; State Compensation Ins. Fund v. WPS, Inc. (1999) 70 Cal.App.4th 644, 652.) Plaintiff has made no showing that SLR was in any way involved in the lack of timely service of responses or knew of the discovery prior to the initial due date, or made any decision to waive the attorney-client privilege. Indeed, Plaintiff’s reply makes no attempt to argue otherwise and ignores this issue altogether. III. PLAINTIFF HAS FAILED TO SUPPORT HIS ARGUMENT THAT SERVICE WAS PROPER WITH ANY AUTHORITY Plaintiff has claimed that its service was proper, but has failed to provide any legal authority supporting his contention that he does not have to serve all law firms of record. Indeed, he only points to a discussion with the Court at the hearing on SLR’s Motion for Summary ! The practice group handling this matter at PIB moved to Ropers in June, 2019. This move was after the discovery had been propounded and is irrelevant to the issue of whether or not the discovery was properly served. 3 SL RESIDENTIAL, INC.’S REPLY IN SUPPORT OF ITS MOTION FOR RELIEF FROM WAIVER OF PRIVILEGE OBJECTIONS REGARDING PLAINTIFF'S FORM INTERROGATORIES, SET ONE Co st a M e s a R O P E R S A Pr of es si on al Co rp or at io n M A J E S K K I A N nn W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 27 28 Judgment, wherein the issue had not been briefed. Plaintiff’s failure to support his position with citations to statutory or caselaw (presumably because none exists) is telling. His argument is unsupported and should be deemed abandoned. (See Rossiter v. Benoit (1979) 88 Cal.App.3d 706, 710.) IV. SLR’S RESPONSES TO PLAINTIFF'S FORM INTERROGATORIES ARE CODE-COMPLIANT, AND PLAINTIFF FAILED TO MEET AND CONFER BEFORE FILING A MOTION TO COMPEL Plaintiff’s argument that SLR’s motion should be denied because its responses to the 16- series of form interrogatories were defective is without merit. SLR’s responses accurately state that it is unable to provide substantive information as it had insufficient information with which it could respond. Plaintiff simply disagrees with this statement and claims that the statement that Plaintiff refused to allow an Independent Medical Examination is false (“IME”). Plaintiff served objections to SLR’s IME notices in July, 2019. (Declaration of Heather P. Karl, 2.) This is a refusal to attend an IME. Disagreement with the content of a response is not a proper basis to move to compel a further response, and it does not mean the response is not code-compliant. Further, Plaintiff misrepresents the content of SLR’s further responses. After Plaintiff met and conferred and generally agreed to an IME, SLR stated in its further responses that Plaintiff’s counsel advised that Plaintiff would submit to an IME, but said IME has not taken place. (See Exhibit 4 to SLR’s Motion, p. 10: 26-27.) Plaintiff made no attempt to meet and confer regarding the further responses prior to filing a motion to compel. Contrary to Plaintiff’s claim, he was not “forced” to file a motion (other than due to his own failure to timely meet and confer or obtain an extension to his motion deadline) as SLR provided further responses after the first meet and confer was received, indicating it would be receptive to further meet and confer efforts. As to the objections to Form Interrogatories 12.2 and 12.3, an objection is a code- compliant response. Code of Civil Procedure section 2030.210(a) states that an objection is a permissible response to an interrogatory. (See also 5. [8:1023]Responding to Interrogatories:, Cal. Prac. Guide Civ. Pro. Before Trial Ch. 8F-5.) As to the timing of the responses, SLR’s job file is 88.9 Gigabytes, contains 31,450 documents (not page numbers), in 2,809 folders and subfolders. (Declaration of Heather P. Karl, 4- SL RESIDENTIAL, INC.’S REPLY IN SUPPORT OF ITS MOTION FOR RELIEF FROM WAIVER OF PRIVILEGE OBJECTIONS REGARDING PLAINTIFF'S FORM INTERROGATORIES, SET ONE Co st a M e s a R O P E R S A Pr of es si on al Co rp or at io n M A J E S K K I A N nn W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 27 28 93.) It took some time for SLR to locate its job file and provide it to counsel due to its transition from paper to electronic files. (Declaration of Heather P. Karl, 3.) The structure of the file did not and does not lend itself to easy or efficient searching. (Declaration of Heather P. Karl, { 3.) Accordingly, SLR has met the procedural requirements to bring the instant motion. V. PLAINTIFF HAS SUFFERED NO PREJUDICE Plaintiff’s claim that he suffered prejudice from any delay in the provision of responses is not meritorious. Trial in this action is not until 2021 (and may be continued again due to COVID), and the discovery cutoff is months away. VI. PLAINTIFF MISREPRESENTS THE FACTS REGARDING SLR’S REQUEST FOR COURTESY COPIES OF THE DISCOVERY Plaintiff claims that SLR contacted him to request courtesy copies of the discovery. His claim is supported by a declaration from an attorney who simply states “On July 24, 2019, Defendant contacted Plaintiff and requested courtesy copies of Plaintiff’s written discovery, which Plaintiff provided.” (See Declaration of Federico Stea, Esq., 9 4, attached to Plaintiff’s Opposition.) The request for courtesy copies was made after defense counsel received a call from a law clerk at Plaintiff’s office advising that no responses to the discovery had been received. It is telling that although SLR has provided a declaration from the attorney who participated in the conversation regarding the responses and has personal knowledge of the communication, the declaration proffered by Plaintiff makes no attempt to show personal knowledge of the conversation. (See Declaration of Heather P. Karl, attached to the Notice of Motion and Motion, { 6.) 1" 1" 1" 1" 1" 1" 1 -5- SL RESIDENTIAL, INC.’S REPLY IN SUPPORT OF ITS MOTION FOR RELIEF FROM WAIVER OF PRIVILEGE OBJECTIONS REGARDING PLAINTIFF’S FORM INTERROGATORIES, SET ONE Co st a M e s a R O P E R S A Pr of es si on al Co rp or at io n ~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 27 28 VII. CONCLUSION Based upon the foregoing, and the moving papers, SLR respectfully requests this Court grant the instant motion. Dated: July 24, 2020 ROPERS MAJESKI PC By: KATHLEEN MARY KUSHI CARTER HEATHER P. KARL Attorneys for Defendants SL RESIDENTIAL, INC. AND VANTIS MULTIFAMILY, LLC and Cross- Complainant SL RESIDENTIAL, INC. -6- SL RESIDENTIAL, INC.’S REPLY IN SUPPORT OF ITS MOTION FOR RELIEF FROM WAIVER OF PRIVILEGE OBJECTIONS REGARDING PLAINTIFF'S FORM INTERROGATORIES, SET ONE Co st a M e s a R O P E R S A Pr of es si on al Co rp or at io n S E A N nn W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 27 28 DECLARATION OF HEATHER P. KARL I, HEATHER P. KARL, declare as follows: 1. I am an attorney at law duly licensed to practice before all of the courts of the State of California and am an associate in the law firm of Ropers Majeski PC (“Ropers”), attorneys of record for Vantis Multifamily, LLC (“Vantis”) and SL Residential, Inc. (“SLR”) I was an associate in the law firm of Parker Ibrahim & Berg (“PIB”), prior attorneys of record for Vantis and SLR from October 1, 2017 through May 31, 2019. The facts set forth herein are of my own personal knowledge and if called upon, I could and would competently testify thereto. Ze SLR served Plaintiff with three notices for Independent Medical Examinations in early July, 2019. Plaintiff served objections to each. 3 SLR’s job file is 88.9 Gigabytes, contains 31,450 documents (not page numbers), in 2,809 folders and subfolders. It took some time for SLR to locate its job file and provide it to counsel due to its transition from paper to electronic files. The structure of the file did not and does not lend itself to easy or efficient searching. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct and that this declaration was executed in Orange, California on July 24, 2020. Ur 77 HEATHER P. KARL iu SL RESIDENTIAL, INC.’S REPLY IN SUPPORT OF ITS MOTION FOR RELIEF FROM WAIVER OF PRIVILEGE OBJECTIONS REGARDING PLAINTIFF'S FORM INTERROGATORIES, SET ONE Co st a M e s a R O P E R S A Pr of es si on al Co rp or at io n M A J E S K K I A N nn W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 27 28 PROOF OF SERVICE METHOD OF SERVICE [J First Class Mail [1 Facsimile Ol] Messenger Service Cl Overnight Delivery E-Mail/Electronic Delivery I. At the time of service I was over 18 years of age and not a party to this action. 2. My business address is 650 Town Center Drive, Suite 1600, Costa Mesa, CA 92626. 3. On July 24, 2020, 1 served the following documents: SL RESIDENTIAL, INC.’S REPLY IN SUPPORT OF ITS MOTION FOR RELIEF FROM WAIVER OF PRIVILEGE OBJECTIONS REGARDING PLAINTIFF'S FORM INTERROGATORIES, SET ONE; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF HEATHER P. KARL 4. I served the documents on the persons at the address below (along with their fax numbers and/or email addresses if service was by fax or email): SEE ATTACHED LIST 5. I served the documents by the following means: a. OO By United States mail: I enclosed the documents in a sealed envelope or package addressed to the persons at the addresses specified in item 4 and placed the envelope for collection and mailing, following our ordinary business practices. I am readily familiar with this business’s practice for collecting and processing correspondence for mailing. On the same day that correspondence is placed for collection and mailing, it is deposited in the ordinary course of business with the United States Postal Service, in a sealed envelope with postage fully prepaid at the address listed in Paragraph 2 above. b. O 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 in item 4. I placed the envelope or package for collection and overnight delivery at an office or a regularly utilized drop box of the overnight delivery carrier. C. 0 By messenger: I served the documents by placing them in an envelope or package addressed to the persons at the addresses listed in item 4 and providing them to a messenger for service. (Separate declaration of personal service to be provided by the messenger.) c. By email or electronic transmission: I caused the documents to be electronically transmitted to the persons at the email addresses listed in item 4. I did not receive, within a reasonable time after the transmission, any electronic message or other indication that the transmission was unsuccessful. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Dated: July 24, 2020 Shannen AW aon SHANNON ALLISON -8- PROOF OF SERVICE Co st a M e s a R O P E R S A Pr of es si on al Co rp or at io n M A J E S K K I A N nn W N 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 27 28 Case Name: PEREZ V. SHEA APARTMENTS, ET AL. Case No.: 30-2018-00987765-CU-NP-CJC Our File No.: NCS 0182C SERVICE LIST Siamak Vaziri, Esq. David C. Shay, Esq. Alfonso Ortega, Esq. Federico Stea, Esq. VAZIRI LAW GROUP 5757 Wilshire Boulevard, Suite 670 Los Angeles, California 90036 EMAIL: dshay @ vazirilaw.com EMAIL: svaziri@vazirilaw.com EMAIL: dsteam@vazirilaw.com EMAIL: aortega@vazirilaw.com EMAIL: fstea@vazirilaw.com EMAIL: mhillel@vazirilaw.com TEL: (310) 777-7540 Attorneys for Plaintiff, JORGE PEREZ Matthew Soleimanpour, Esq. SOLEIMAN APC 5771 La Jolla Blvd., Suite 4 La Jolla, CA 92037 EMAIL: matt@soleimanlaw.com TEL: (619) 630-5690 Attorneys for Plaintiff, CALIFORNIA CONTRACTORS NETWORK, INC. Darren M. Ebner, Esq. Jamie Lee, Esq. SPRINGEL & FINK, LLP 18100 Von Karman Ave., Suite 750 Irvine, CA 92612 EMAIL: debner @springelfink.com EMAIL: Jlee @springelfink.com EMAIL: mlozano @springelfink.com TEL: (714) 957-5742 FAX: (714) 957-5762 Attorneys for Defendant/Cross-Complainant, AMPAM PARKS MECHANICAL, INC. 9. PROOF OF SERVICE Co st a M e s a R O P E R S A Pr of es si on al Co rp or at io n ~N O Y a B A W 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 23 26 27 28 Namvar A. Mokri, Esq. Daniel J. McKenzie, Esq. Richard A. LeVu, Esq. MOKRI VANIS & JONES, LLP 4100 Newport Place Drive, Suite 840 Newport Beach, California 92660 EMAIL: dmckenzie @mvjllp.com EMAIL: rlevu@mvjllp.com TEL: (949) 226-7040 FAX: (949) 226-7150 Attorneys for Cross-Defendant, CAL-COAST CONSTRUCTION SPECIALTIES, INC. Kim Schumann, Esq. Marlys Braun, Esq. SCHUMANN ROSENBERG, LLP 3100 Bristol Street, Suite 100 Costa Mesa, California 92626-7330 EMAIL: Schumann @ SchumannRosenberg.com EMAIL: Braun @SchumannRosenberg.com TEL: (714) 850-0210 | Ext. 236 FAX: (714) 850-0551 Attorneys for Defendants FERGUSON ENTERPRISES and SPEARS MANUFACTURING COMPANY, INC. -10- PROOF OF SERVICE