Opposition To Motion For Protective Order

Opposition

Cal. Super. - 4th Dist.May 23, 2018

© 00 9 O N Un BA W N = N N N ND N N N ND O N m E mm e m e m e m e m e m p m c o JI O N wn pA W O N D = O 0 N N N E W N = O Marc Y. Lazo SBN: 215998 WILSON KEADJIAN BROWNDORF LLP 1900 Main Street, Suite 600 Irvine, CA 92614 Tel: (888) 690-5557 Fax:(949) 234-6254 Attorneys for Plaintiffs ELECTROMICALLY FILED Superior Court of Califarnia, County of Orange 03/04/2019 at 08:00:00 AM Clerk of the Superior Court By & Clerk, Deputy Clerk SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF ORANGE MARC YOUSSEF LAZO, an individual, JAQUES HATTOUNI, an individual, and H&L HOLDINGS GROUP, LLC a Delaware limited liability company Plaintiffs, VS. RICHARD KELLER, an individual, TONI A. RICHEY, individually and as an agent of TIM Real Estate Investments, Inc., TIM REAL ESTATE INVESTMENTS, INC, a California Corporation, ROBERT DAVID SUER, an individual, RACHEL YVETTE SUER, an individual, ROBERT S. MEISEL, an individual, QUICKEN LOANS, INC., a Michigan Corporation, PATCH OF LAND INC., California Corporation, PATCH OF LAND LENDING LLC, a subsidiary of PATCH OF LAND, L’OREAL USA S/D, a New Jersey Corporation, NYX PROFESSIONAL MAKEUP, a business entity of unknown form, K&N ENGINEERINING INC. a California Corporation, and CUSTOMFAB USA, a business entity of unknown form, and DOES 1 through 50, inclusive Defendants. N r N N N e N e N e N e N e N e N e N e N e N e N e N e N e N e N e N e N e N e N e N e N N N e N N N N Case No. 30-2018-00994566-CU-CO-CJC Assigned to the Honorable James Crandall PLAINTIFFS’ OPPOSITION TO DEFENDANT RICHARD KELLER’S MOTION FOR PROTECTIVE ORDER; REQUEST FOR SANCTIONS IN THE AMOUNT OF $3,550 JOINTLY AND SEVERALLY AGAINST KELLER AND HIS COUNSEL OF RECORD [Filed and Served Concurrently with Declaration of Marc Lazo] DATE: March 14, 2019 TIME: 1:30 p.m. DEPT: C33 1 PLAINTIFFS’ OPPOSITION TO DEFENDANT’S MOTION FOR PROTECTIVE ORDER © 00 9 O N Un BA W N = N N N ND N N N ND O N m E mm e m e m e m e m e m p m c o JI O N wn pA W O N D = O 0 N N N E W N = O Plaintiffs Marc Yousef Lazo (“LAZO”), Jacques Hattouni, and H&L Holdings Group, LLC (collectively “Plaintiffs”) hereby submit the following Memorandum of Points and Authorities in support of their Opposition to the Motion for Protective Order (the “Motion”) filed by Defendant Richard Keller (hereinafter “Defendant™): MEMORANDUM OF POINTS AND AUTHORITIES L STATEMENT OF FACTS Criminally convicted Defendant RICHARD KELLER (hereinafter “KELLER”) and Plaintiff LAZO entered into a loan agreement in September of 2012 (hereinafter “2012 Note”). (Compl., q 19. KELLER represented he required $42,000 to cure the outstanding license fees for his companies 1-800) Battery, Inc. and 1-800-Batteries, Inc. (collectively, “1-800”"), which had gone into default. (Compl., § 19.) KELLER represented to LAZO that he needed the loan immediately or he would lose thesg businesses. (Lazo Decl., | 12.) LAZO agreed to loan the monies, and the parties entered into the 2012 Note to memorialize the loan (the “Note”). (Compl., | 19.) The 2012 Note was entered into between LAZO, on one hand, and KELLER, 1-800, and each of the other business entities KELLER purported tq own, on the other. (Compl., 19.) Failure to pay the debt would give LAZO aright to equity in KELLER’s companies. (Compl., q 19.) Importantly, the Note provided LAZO with Elective and Mandatory Conversion rights, and entitled him to exclusive signatory rights for KELLER and each of KELLER’S entities upon default. (Compl., 19.) On December 31, 2012, KELLER defaulted on the Note and Plaintiffs and Defendant negotiated the terms of a Stipulation for Entry of Judgement (“Stipulation”). (Lazo Decl., 4.) KELLER has - under penalty of perjury in a related proceeding - denied that he entered into the Stipulation, and that version attached to the moving papers was fraudulently backdated by him. Moreover, in a related proceeding KELLER in written discovery responses declared that the Stipulation is unenforceable. (Lazo Decl., Ex D (“The provision in responding party’s agreement with Lazo referred to in this request for admission is invalid under Civil Code section 1671 and the ‘Stipulation for Entry of Judgment’ fails to comply with CCP sections 664.6, 1132 and 1133.”).) Nevertheless, Plaintiffs have always taken the position that the Stipulation is valid and enforceable, and LAZO is in fact suing KELLER in another lawsuit for enforcement of the Note. 2 PLAINTIFFS’ OPPOSITION TO DEFENDANT’S MOTION FOR PROTECTIVE ORDER © 00 9 O N Un BA W N = N N N ND N N N ND O N m E mm e m e m e m e m e m p m c o JI O N wn pA W O N D = O 0 N N N E W N = O The material terms of the Stipulation required KELLER to repay, in payments of $10,000 pet month, the sum of $50,000 in full and final satisfactions of all debts and obligations owed to Plaintiffs (Lazo Decl. Ex. A; Lazo Decl., {4.) If Defendant failed to make any one or more of the payments required under the Stipulation, Plaintiffs would be entitled to have judgement immediately entered in the amount of $75,000. (Lazo Decl., q 12.) Under the Stipulation, a waiver of any term must be made in a separate writing executed by all parties and will be limited to the express written terms of the waiver. (Lazo Decl. q 12.) Defendant failed to make the final $5,000 payment, and have not cured that default. (Lazo Decl., 6.) Defendant alleges that Plaintiffs waived payment of the $5,000 and support this allegation with lies from KELLER’s declaration and a supporting exhibit containing an email correspondence that clearly does not fulfill the requirements of a valid waiver under the Stipulation. (Lazo Decl., { 6, 7.) For thif reason alone, the Motion fails. Even more fundamentally, there are a number of cases related to this one, and Plaintiffs have filed a Notice of the same. As set forth below, Judge Glenda Sanders has made numerous dispositive ruling in Plaintiffs’ favor, which has caused KELLER to vehemently resist the transferring of this case, and otherwise conceal the findings of Judge Sanders from this Court. During the course of Plaintiffs’ discovery efforts, Plaintiffs learned that KELLER and/or various of his purported entities entered into numeroug unauthorized transactions with numerous third parties without Plaintiffs’ knowledge or consent (the “Unauthorized Transactions”). Plaintiffs also learned that KELLER has a history of criminal charges and convictions, including false imprisonment and impersonation. Such revelations prompted the filing of thi action, which is based on each of the Unauthorized Transactions discovered to date with each of the Defendants, who were on constructive - if not actual - notice that neither KELLER nor any of hig purported entities had the authority to enter into these business dealings Plaintiff’s consent. As detailed below, KELLER’s only point in filing this motion is to foreclose and/or delay Plaintiffs’ discovery rights, which in the face of a pending Motion for Summary Judgment is entirely sanctionable. KELLER has never been deposed in any case, and his bad faith gamesmanship warrants that sanctions should be issued against KELLER and his counsel. II. KELLER HAS NEVER BEEN DEPOSED IN ANY LAWSUIT, AND HIS GAMESMANSHIP IN THE FACE OF A PENDING MSJ UNEQUIVOCALLY 3 PLAINTIFFS’ OPPOSITION TO DEFENDANT’S MOTION FOR PROTECTIVE ORDER © 00 9 O N Un BA W N = N N N ND N N N ND O N m E mm e m e m e m e m e m p m c o JI O N wn pA W O N D = O 0 N N N E W N = O MANDATES THAT HIS DEPOSITION BE ORDERED TO OCCUR WITHIN THREE (3) DAYS OF THIS HEARING, OR THE MSJ BE SUMMARILY DENIED Discovery is “a matter of right unless statutory or public policy considerations clearly prohibit it. Greyhound Corp. v. Superior Court (1961) 56 Cal.2nd 355. The discovery statutes are designed to eliminate surprise at trial. Fairmont Ins. Co. v Superior Court (2000) 22 Cal.4th 245, 253. California courts have reiterated that the Civil Discovery Act is to be liberally construed in favor of disclosure. Flagship Theaters of Palm Des., LLC v. Century Theaters, Inc. (2011) 198 Cal. App.4th 1366, 1383. In fact, our Court of Appeal has stated that “California’s pretrial discovery procedures are designed to minimize the opportunities for fabrication and forgetfulness, and to eliminate the need for guesswork about the other side’s evidence, with all doubts about discoverability resolved in favor of disclosure.” Glenfed Dev. Corp. v. Superior Court (1997) 53 Cal.App.4th 1113, 1119, 62 CR2d 195. Thus, to accomplish the legislative purpose behind the discovery statutes, they “must be construed liberally in favor of disclosure.” Emerson Elec. Co. v Superior Court (1997) 16 Cal.4th 1101, 1107 [quoting Greyhound Corp. v Superior Court, supra, at 377]. In Greyhound, the Court held that the legislative purpose of liberal discovery must not be subverted under the guise of exercise of discretion. /d., at 383. Particularly where facts are disputed, this purpose is to be given effect rather than thwarted, so discovery is encouraged. Id. As such, judicial discretion may not be exercised in situations not included in the discovery statutes. Id. Here, contrary to KELLER ’s assertions, he has never been deposed in this case or any case referenced in the motion. (Lazo Decl., J 16.) His refusal to appear for his duly scheduled February 1, 2019 deposition not only cost Plaintiffs thousands of dollars in fees and costs; KELLER’s gamesmanship in filing the motion to delay Plaintiffs’ discovery rights in the face of a pending Motion for Summary Judgment warrants sanctions against KELLER and his counsel. The following timeline is indisputable: eo KELLER filed a Motion for Summary Judgment (MSJ) scheduled for April 4, to which Plaintiffs’ Opposition is due March 28 (Lazo Decl., 17); e After several attempts to procure a convenient date for KELLER from his counsel, and numerous emails relating that Plaintiffs would unilaterally set a date that would not be 4 PLAINTIFFS’ OPPOSITION TO DEFENDANT’S MOTION FOR PROTECTIVE ORDER © 00 9 O N Un BA W N = N N N ND N N N ND O N m E mm e m e m e m e m e m p m c o JI O N wn pA W O N D = O 0 N N N E W N = O moved if such a convenient date was not provided, Plaintiffs noticed KELLER’s deposition for February 1, 2018, which notice gave KELLER several more days than the statutory minimum (Lazo Decl., 18); eo Thereafter, KELLER file a Motion for a Protective Order due to be heard on March 7, which attempts to foreclose Plaintiffs’ document production rights (Lazo Decl., q 19); e Thereafter, KELLER filed the instant motion, seeking to foreclose Plaintiffs’ deposition rights. Thus, KELLER expects to be able to file a MSJ while preventing LAZO from being able to depose him. KELLER and his counsel’s gamesmanship cannot go unheeded. Either KELLER’s deposition must be ordered to occur without interruption within three (3) days of this hearing, or the pending MSJ hearing date must be continued. In this regard, Per C.C.P. section 437c(h), a Court has discretion to deny a MSJ, or at minimum order a continuance, if the non-moving party shows there is necessary discovery to be had. At minimum, a continuance of a MSJ is “virtually mandated” where the nonmoving party makes the requisite showing. Bahl v. Bank of America (2001) 89 Cal.App.4th 389, 395-96. The Bahl court noted that it was “hard- pressed to imagine evidence more ‘essential to justify opposition’ than that which might undermine the weight or credibility of declarations made in support of a motion for summary judgment.” Id.; Lerma v. County of Orange (2004) 120 Cal.App.4th 709, 714-15. Here, as set forth in the accompanying Lazo Declaration, not only has KELLER never been deposed in any lawsuit; the viability of III. THE INSTANT MOTION - ONE OF MANY MORE ON THIS COURT’S DOCKET -1IS CONTINUED DEMONSTRATION OF KELLER’S BAD FAITH CONDCUT AND MUST BE SANCTIONED Whenever one party’s improper actions, even if not “willful,” in seeking or resisting discovery necessitate the court’s intervention, the losing party must be ordered to pay a sanction to the prevailing party. Ellis v. Toshiba America Information Systems, Inc. (2013) 218 Cal. App.4th 853. The purpose of discovery sanctions is to prevent abuse of the discovery process and correct the problem presented. Parker v. Wolters Kluwer U.S., Inc. (2007) 149 Cal. App.4th 285. 5 PLAINTIFFS’ OPPOSITION TO DEFENDANT’S MOTION FOR PROTECTIVE ORDER © 00 9 O N Un BA W N = N N N ND N N N ND O N m E mm e m e m e m e m e m p m c o JI O N wn pA W O N D = O 0 N N N E W N = O Under Code of Civil Procedure § 2023.030, sanctions are mandatory against anyone engaging in conduct that is a misuse of the discovery process. “Misuses of the discovery process include, but are not limited to...(d) Failing to respond or to submit to an authorized method of discovery.” Code Civ. Proc. § 2023.010(d). In the case of depositions, ‘[o]n motion of any other party who, in person or by attorney, attended at the time and place specified in the deposition notice in the expectation that the deponent's testimony would be taken, the court shall also impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) in favor of that party and against the deponent or party with whom the deponent is affiliated, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.” Code Civ. Proc. § 2025.450(g)(2). “If amotion under subdivision (a) is granted, the court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) in favor of the party who noticed the deposition and against the deponent or the party with whom the deponent is affiliated, unless the court finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.” Code Civ. Proc. § 2025.450(g)(1). The court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel an answer or production, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust." Code Civ. Proc. § 2025.480()). Here, there is absolutely no cause or justification for KELLER and his conduct’s counsel, particularly in the face of a pending MSJ and impending trial. As set forth in the accompanying Lazo Declaration, Plaintiffs have incurred $3,550 in fees and costs in noticing KELLER’s deposition for which he did not appear. (Lazo Decl., 20). 1" 1" IV. KELLER’S CONTINUOUS COMPARISONS OF THIS MATTER TO THE “OTHER” CASE PENDING BEFORE JUDGE SANDERS WARRANTS THAT THIS CASE BE TRANSFERRED TO DEPARTMENT CX101 6 PLAINTIFFS’ OPPOSITION TO DEFENDANT’S MOTION FOR PROTECTIVE ORDER © 00 9 O N Un BA W N = N N N ND N N N ND O N m E mm e m e m e m e m e m p m c o JI O N wn pA W O N D = O 0 N N N E W N = O KELLER has consistently and repeatedly claimed that this lawsuit is an exact duplicate of the case pending before Judge Sanders styled /-800-Battery v. Kalo, et al. He used that claim to base his (unsuccessful) Motion for Sanctions, pending MSJ and this motion. If this is really his contention, this matter should be transferred to Judge Sanders. As set forth above, Judge Sanders has already ruled on numerous dispositive issues in the Kalo action, and Plaintiffs have no objection to the case being transferred there. In fact, there is no trial date set in the Kalo case, and if KELLER believes the issues are identical, KELLER cannot dispute that adjudication of this case by trial will necessarily create issues of res judicata and collateral estoppel. Accordingly, transfer of this case is a proper solution to the gamesmanship KELLER has employed before this Court, which will also require the MSJ to be reset and provide Plaintiffs with adequate time to prepare their opposition. V. CONCLUSION For the foregoing reasons, the Motion should be denied, the Court should order KELLER’s deposition to occur within three (3) days, and the hearing on the MSJ should be continued two weeks to allow Plaintiffs’ meaningful opportunity to oppose. Moreover, sanctions should be issued against KELLER and his counsel in the amount of $3,550. Finally, this case should be transferred to CX101. Dated: March 1, 2019 WILSON KEADJIAN BROWDOREF, LLP MARCY. LAZO Attorneys for Plaintiffs 7 PLAINTIFFS’ OPPOSITION TO DEFENDANT’S MOTION FOR PROTECTIVE ORDER © 00 9 O N Un BA W N = N N N ND N N N ND O N m E mm e m e m e m e m e m p m c o JI O N wn pA W O N D = O 0 N N N E W N = O PROOF OF SERVICE (C.C.P. Section 1013a and Section 2015.5) 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 1900 Main Street, Suite 600, Irvine, California 92614. On March 1, 2019, I served the within PLAINTIFFS’ OPPOSITION TO DEFENDANT RICHARD KELLER’S MOTION FOR PROTECTIVE ORDER; REQUEST FOR SANCTIONS IN THE AMOUNT OF $3,550 JOINTLY AND SEVERALLY AGAINST KELLER AND HIS COUNSEL OF RECORD on the interested parties in said action, by the following means of service: Sagi Schwartzberg, Esq. John A. Schaffer Schwartzberg Luther, APC WESIERSKI & ZUREK LLP 8300 Utica Avenue, #105 311 One Corporate Park, Suite 200 Rancho Cucamonga, CA 91730 Irvine, California 92606 sschwartzberg @ielawoffice.com jscaffer@wzllp.com Thomas Abbott Perkins Coie LLP 505 Howard Street Suite 200 Irvine, CA 92606 TAbbott@perkinscoie.com [] BY MAIL: I placed a true copy in a sealed envelope addressed as indicated above, on the above- mentioned date. [ am familiar with the firm’s practice of collection and processing correspondence for mailing. It is deposited within the U.S. Postal Service on that same day in the ordinary course of business. I am aware that on mention of party served, service is presumed invalid if postal cancellation date or postage meter date is more than one day after date of deposit of mailing in affidavit. [] BY PERSONAL SERVICE: I placed a true copy in a sealed envelope addressed to each person(s named at the address(es) shown above and giving same to a messenger for personal delivery before 5:00 p.m. on the above mentioned date. [XX] BY ELECTRONIC SERVICE at the email addresses above. I declare under penalty of perjury under the law of the State of California that the foregoing is trug and correct. Executed on March 1, 2019, at Irvine, California. TpnCake Rosie Cantillo 8 PLAINTIFFS’ OPPOSITION TO DEFENDANT’S MOTION FOR PROTECTIVE ORDER