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1 SPERTUS, LANDES & UMHOFER, LLP
Matthew Donald Umhofer (SBN 206607)
2 Diane H. Bang (SBN 271939)
1990 South Bundy Dr., Suite 705
3 Los Angeles, California 90025
Telephone: (310) 826-4700
4 Facsimile: (310) 826-4711
matthew@spertuslaw.com
5 diane@spertuslaw.com
6 Attorneys for Mark Schaub and TLG Ltd.
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SUPERIOR COURT OF THE STATE OF CALIFORNIA
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FOR THE COUNTY OF SANTA BARBARA
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10 MARK SCHAUB, an individual;
TELEPHONE 310-826-4700; FACSIMILE 310-826-4711
Case No.: 20CV02113
Spertus, Landes & Umhofer, LLP
TLG LTD., a Hong Kong limited
11 liability company,
1990 SOUTH BUNDY DR., SUITE 705
Hon. Donna D. Geck
LOS ANGELES, CA 90025
12 Plaintiffs,
13 PLAINTIFF MARK SCHAUB’S
v. MEMORANDUM OF POINTS &
14 AUTHORITIES IN SUPPORT OF
ANDREW WYLES WATERS, an MOTION TO COMPEL FURTHER
individual; FCP CORPORATE (HK) RESPONSES BY DEFENDANT FCP
15 LTD., a Hong Kong limited liability PRIVATE, LLC. AND REQUEST
company; FCP PRIVATE, LLC, a FOR SANCTIONS; DECLARATION
16 California limited liability OF DIANE H. BANG AND EXHIBITS
corporation; and DOES 1 through 10
17 inclusive,
[Notice of Motion to Compel Further
18 Defendants. Responses to Interrogatories; Notice of
Motion to Compel Further Responses to
19 Requests for Production; Notice of
Motion to Compel Further Responses to
20 Requests for Admissions; Separate
Statement; and Request for Judicial
21 Notice filed concurrently]
22 Hearing Date: August 12, 2022
Hearing Time: 10:00 a.m.
23 Dept.: 4
24 SAC filed: June 14, 2021
Trial: Not set
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SCHAUB’S MEMORANDUM OF POINTS & AUTHORITIES TO COMPEL
DISCOVERY BY FCP PRIVATE
1 TABLE OF CONTENTS
2 PAGE
3 MEMORANDUM OF POINTS AND AUTHORITIES........................................ 1
4 I. INTRODUCTION ........................................................................................ 1
5 II. FACTUAL BACKGROUND ...................................................................... 2
6 A. Overview of Plaintiffs’ Allegations ................................................... 2
7 B. Discovery Served on Defendants ....................................................... 3
8 III. ARGUMENT ............................................................................................... 4
9 A. Plaintiff Is Entitled To Expansive Discovery Rights ......................... 4
10 B. Objections Based On A Breakdown Of The Attorney-Client
Relationship ....................................................................................... 5
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Spertus, Landes & Umhofer, LLP
C. FCP Private’s Responses to Form Interrogatories Are Evasive
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12 and Without Merit .............................................................................. 5
LOS ANGELES, CA 90025
13 1. Form Interrogatories related to insurance (4.1 and 4.2) .......... 5
14 2. Form Interrogatories related to property damage and
other damages (7.1, 7.2, 9.1, 9.2) ............................................ 6
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3. Form Interrogatories related to investigation (12.1 thru
16 12.6) ......................................................................................... 6
17 4. Form Interrogatories related to statutory or regulatory
violations (14.1) ....................................................................... 7
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5. Form Interrogatories related to denials and special or
19 affirmative defenses (15.1) ...................................................... 7
20 6. Form Interrogatories related to responses to request for
admissions (17.1) ..................................................................... 8
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7. Form Interrogatories related to contracts (50.1 thru 50.6) ...... 8
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D. FCP Private’s Responses to Requests for Production Are
23 Evasive and Without Merit ................................................................ 8
24 E. FCP Private’s Responses to Requests for Admission Are
Evasive and Without Merit .............................................................. 10
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F. FCP Private Should Be Sanctioned ................................................. 11
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IV. CONCLUSION .......................................................................................... 11
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1 TABLE OF AUTHORITIES
2 CASES PAGE(S)
3 Burke v. Superior Ct. of Sacramento Cty.,
(1969) 71 Cal. 2d 276......................................................................................... 6, 7
4
Cembrook v. Superior Ct. In & For City & Cty. of San Francisco,
5 56 Cal. 2d 423 (1961)........................................................................................... 10
6 Collisson & Kaplan v. Hartunian,
21 Cal. App. 4th 1611 (1994) .............................................................................. 10
7
Deyo v. Kilbourne,
8 (1978) 84 Cal. App. 3d 771............................................................................ 6, 7, 8
9 Glenfed Dev. Corp. v. Superior Court,
(1997) 53 Cal. App. 4th 1113 ................................................................................ 9
10
Lopez v. Watchtower Bible & Tract Soc’y of N.Y., Inc.,
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11
Spertus, Landes & Umhofer, LLP
(2016) 246 Cal. App. 4th 566 ............................................................................ 1, 4
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12 Murillo v. Superior Court,
LOS ANGELES, CA 90025
(2006) 143 Cal. App. 4th 730 ................................................................................ 8
13
Orange County Water Dist. v. The Arnold Eng. Co.,
14 (2018) 31 Cal. App. 5th 96 .................................................................................... 8
15 Pioneer Electronics (USA), Inc. v. Superior Court,
(2007) 40 Cal. 4th 360 ........................................................................................... 9
16
Seahaus La Jolla Owners Assn. v. Superior Court,
17 (2014) 224 Cal. App. 4th 754 ................................................................................ 8
18 Thomas G. Ferruzzo, Inc. v. Superior Court,
(1980) 104 Cal. App. 3d 501.................................................................................. 4
19
Thoren v. Johnston & Washer,
20 (1972) 29 Cal. App. 3d 270.............................................................................. 7, 11
21 STATUTES
22 Cal. Civ. Proc. Code § 2017.010 ............................................................................... 4
23 Cal. Civ. Proc. Code § 2017.210 ............................................................................... 6
24 Cal. Civ. Proc. Code § 2023.010 ............................................................................... 4
25 Cal. Civ. Proc. Code § 2030.300(a)........................................................................... 5
26 Cal. Civ. Proc. Code § 2030.300(d) ........................................................................ 11
27 Cal. Civ. Proc. Code § 2031.210 ............................................................................... 9
28 Cal. Civ. Proc. Code § 2031.220 ............................................................................... 9
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DISCOVERY BY FCP PRIVATE
1 Cal. Civ. Proc. Code § 2031.230 ............................................................................... 9
2 Cal. Civ. Proc. Code § 2031.240 ............................................................................... 9
3 Cal. Civ. Proc. Code § 2031.310(a)........................................................................... 8
4 Cal. Civ. Proc. Code § 2031.310(h) ........................................................................ 11
5 Cal. Civ. Proc. Code § 2033.220(a)......................................................................... 10
6 Cal. Civ. Proc. Code § 2033.290(a)......................................................................... 10
7 Cal. Civ. Proc. Code § 2033.290(d) ........................................................................ 11
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1 MEMORANDUM OF POINTS AND AUTHORITIES
2 I. INTRODUCTION
3 Plaintiffs Mark Schaub and his company, TLG Ltd., had $2 million stolen
4 from them by Defendants. Plaintiffs were fraudulently induced into sending funds
5 to accounts controlled by Defendant Andrew Waters, and now Defendant Waters
6 refuses to return those funds, making up more lies along the way. Through his
7 companies, Defendants FCP Corporate Ltd. and FCP Private, LLC, Defendant
8 Waters has been operating a Ponzi scheme, luring unsuspecting wealthy investors
9 into sending him hundreds of thousands of dollars, which he then misappropriates
10 for his own personal use. (Request for Judicial Notice (“RJN”) Ex. F (Second Am.
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11 Compl. (“SAC”)) ¶ 1.) Defendant Waters created various shell companies to
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12 mislead potential investors, including Plaintiffs, into believing each company
13 would be profitable. (Ibid.) Plaintiffs are entitled to discovery regarding these
14 companies in order to prove up his claims for conversion, fraud, concealment,
15 breaches of contract, and unjust enrichment.
16 Under California law, parties are afforded expansive discovery rights, with
17 rules liberally applied in favor of discovery. Lopez v. Watchtower Bible & Tract
18 Soc’y of N.Y., Inc. (2016) 246 Cal. App. 4th 566, 590-91. Defendants cannot
19 ignore these rights by serving nothing but unmeritorious, evasive objections, as
20 they have done here. Defendants were given two extensions of time to respond
21 and produce documents, first as a courtesy because of the holidays, and second
22 based on counsel’s representation that “the discovery is voluminous.” (Decl. of
23 Diane H. Bang in Supp. of Mot. to Compel (“Bang Decl.”) ¶¶ 3-4, Ex. A.) Despite
24 the courtesy given, Defendants served only boilerplate objections and no
25 documents, even though counsel agreed in writing that Dixon would respond to
26 Plaintiffs’ contention discovery on December 28, 2022. Defendants should be
27 sanctioned for their conduct for this type of misuse of the discovery process.
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1 II. FACTUAL BACKGROUND
2 A. Overview of Plaintiffs’ Allegations
3 Through his companies, Defendants FCP Corporate Ltd. and FCP Private,
4 LLC, Defendant Waters has essentially been operating a shell factory enterprise by
5 creating various startup companies and misleading potential investors to believe
6 each company would be operating and profitable. Plaintiff Mark Schaub is an
7 individual who, while living in Hong Kong, was befriended and then ultimately
8 defrauded by Defendant Waters. He believed Defendant Waters to be a successful
9 businessman and that he was running real businesses with real potential for growth
10 and profitability. (SAC ¶¶ 17-18.)
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11 In 2019, Mr. Schaub was informed that HSBC was planning to close his
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12 company account, TLG Ltd. Defendant Waters convinced Mr. Schaub that HSBC
13 was closing the account because the bank believed it to contain tainted funds. Mr.
14 Schaub was unfamiliar with Hong Kong banking regulations and believed
15 Defendant Waters’ representations. Defendant Waters induced Mr. Schaub to have
16 approximately $50,000 transferred to the FCP Corporate account controlled by
17 Waters, promising that this was a client account and that the funds would be held
18 in trust. (SAC ¶ 27.)
19 In July 2019, instead of the planned $50,000, approximately $2 million was
20 mistakenly transferred from TLG to FCP Corporate’s account. (SAC ¶ 32.) When
21 Mr. Schaub inquired about the money, rather than returning the funds to Mr.
22 Schaub, Defendant Waters proceeded to drain FCP Corporate’s account of the
23 entire $2 million. (SAC ¶ 41.) Meanwhile, Defendant Waters falsely told Mr.
24 Schaub that the bank had frozen the accounts where Plaintiffs’ funds were
25 transferred to, that the bank believed the funds were from an illegitimate source,
26 and that he would have to go to Hong Kong to resolve the situation with the frozen
27 accounts. For months, Defendant Waters proceeded to string Mr. Schaub along
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DISCOVERY BY FCP PRIVATE
1 with these lies. (SAC ¶¶ 42-43.) Mr. Schaub demanded the immediate return of
2 his funds, Defendant Waters refused, and he continues to refuse to this day.
3 B. Discovery Served on Defendants
4 On October 29, 2021, Plaintiff served a set of form interrogatories, requests
5 for production of documents (“RFPs”), and requests for admissions (“RFAs”)
6 relating to the allegations of the SAC on all three defendants. (Bang Decl. ¶ 2.)
7 On November 16, 2021, per Defendants’ request, Plaintiffs agreed to extend the
8 deadline for Defendants’ discovery responses to December 15, 2021, as a courtesy
9 to counsel. (Bang Decl. ¶ 3, Ex. A.) On December 10, 2021, Defendants made a
10 second request to extend the deadline to respond to discovery, stating that “the
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11 discovery is voluminous.” (Ibid. ¶ 4, Ex. A) Believing that Defendants would
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12 respond in good faith and that they were in the process of gathering and reviewing
13 documents for production, Plaintiffs agreed to extend the deadline to December 28,
14 2021, giving Defendants an additional four weeks from their statutory deadline to
15 respond. (Ibid. ¶ 5.)
16 However, on the agreed upon deadline, Defendants served boilerplate,
17 evasive objections and did not produce a single document. (Bang Decl. ¶ 6, Exs.
18 B-D.) One of the objections repeated by Defendants in response to every request
19 was that “[b]ecause Defendants’ counsel’s motion to be relieved as counsel was
20 based on a material breakdown in the attorney-client relationship, Defendants’
21 counsel is not able to provide full and complete responses at this time.” (See ibid.)
22 Yet, in counsel’s communications with Plaintiffs’ counsel regarding the second
23 extension, there was no indication that discovery responses would be deficient in
24 any way, and Plaintiffs were informed that “counsel will be substituting into the
25 case.” (Bang Decl. ¶ 4, Ex. A.)
26 Even though counsel’s motion to be relieved as counsel was filed in October
27 2021, (RJN, Ex. H), and even though California law requires corporate entities to
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1 be represented by counsel, Thomas G. Ferruzzo, Inc. v. Superior Court (1980) 104
2 Cal. App. 3d 501, 503 (“The rule is clear in this state that, with the sole exception
3 of small claims court, a corporation cannot act in propria persona in a California
4 state court.”), no counsel has appeared on behalf of Defendants FCP Corporate
5 Ltd. and FCP Private, LLC.1 Defendants have now had plenty of time obtain new
6 counsel and amend or supplement their discovery responses, but have failed to do
7 so. Accordingly, Plaintiff Mark Schaub’s Motion to Compel Further Responses
8 (the “Motion”) should be granted and sanctions should be awarded.
9 III. ARGUMENT
10 A. Plaintiff Is Entitled To Expansive Discovery Rights
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11 “California law provides parties with expansive discovery rights.” Lopez v.
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12 Watchtower Bible & Tract Soc’y of N.Y., Inc. (2016) 246 Cal. App. 4th 566, 590.
13 “[A]ny party may obtain discovery regarding any matter, not privileged, that is
14 relevant to the subject matter involved in the pending action . . . if the matter either
15 is itself admissible in evidence or appears reasonably calculated to lead to the
16 discovery of admissible evidence.” Cal. Civ. Proc. Code § 2017.010. “The
17 statutory phrase ‘subject matter’ is broader than the issues and is not limited to
18 admissible evidence.” Lopez, 246 Cal. App. 4th at 591 (citation and internal
19 quotation marks omitted). The discovery rules “are applied liberally in favor of
20 discovery [citation], and (contrary to popular belief), fishing expeditions are
21 permissible in some cases.” Ibid. (citation and internal quotation marks omitted).
22 Misuses of the discovery process include unmeritorious objections to
23 discovery without substantial justification and making evasive responses. Cal. Civ.
24 Proc. Code § 2023.010. These are precisely the type of objections set forth by FCP
25 Corporate, which the Court should not permit to stand.
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If an attorney does not appear on behalf of Defendants FCP Corporate and
FCP Private, Plaintiffs intend to file a motion to strike Defendants FCP Corporate
28 and FCP Private’s Answer and request that default be entered against these entities.
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DISCOVERY BY FCP PRIVATE
1 B. Objections Based On A Breakdown Of The Attorney-Client
2 Relationship
3 In each and every response to Mr. Schaub’s discovery requests, FCP Private
4 states that “[b]ecause Defendants’ counsel’s motion to be relieved as counsel was
5 based on a material breakdown in the attorney-client relationship, Defendants’
6 counsel is not able to provide full and complete responses at this time.” This is not
7 a basis for withholding discovery. In any case, FCP Private has been on notice
8 since October 12, 2021, that its attorney was requesting to be relieved as counsel
9 from this case. (RJN, Ex. H.) FCP Private did not file an objection to counsel’s
10 request, (RJN, Ex. I), and the Court granted the motion to be relieved as counsel on
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11 January 7, 2022, (RJN, Ex. J). FCP Private has had ample time to find new
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12 counsel and amend or supplement its responses, but has failed to do so. The
13 responses should be amended with this objection removed.
14 C. FCP Private’s Responses to Form Interrogatories Are Evasive
15 and Without Merit
16 A party may move for an order compelling a further response if: “(1) An
17 answer to a particular interrogatory is evasive or incomplete. (2) An exercise of
18 the option to produce documents under Section 2030.230 is unwarranted or the
19 required specification of those documents is inadequate. (3) An objection to an
20 interrogatory is without merit or too general.” Cal. Civ. Proc. Code § 2030.300(a).
21 Plaintiff’s form interrogatories, which are approved by the Judicial Council,
22 requested that FCP Private identify which specific allegations of the SAC it denies
23 and to disclose what, if any, facts, witnesses, and documents would support those
24 denials and its affirmative defenses, its position on Plaintiff’s contracts claims, and
25 denials to RFAs.
26 1. Form Interrogatories related to insurance (4.1 and 4.2)
27 Because Plaintiffs were authorized by statute to request information
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1 pertaining to FCP Private’s liability insurance, FCP Private’s refusal to produce
2 that information in response to Form Interrogatory Nos. 4.1 and 4.2 is improper.
3 See Cal. Code Civ. Pro. § 2017.210 (“A party may obtain discovery of the
4 existence and contents of any agreement under which any insurance carrier may be
5 liable to satisfy in whole or in part a judgment that may be entered in the action or
6 to indemnify or reimburse for payments made to satisfy the judgment.”).
7 2. Form Interrogatories related to property damage and other
8 damages (7.1, 7.2, 9.1, 9.2)
9 “[A] defendant in California courts may be required through discovery to
10 disclose not only the evidentiary facts underlying his affirmative defenses and
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11 denials but also whether or not he makes a particular contention, either as to the
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12 facts or as to the possible issues in the case.” Burke v. Superior Ct. of Sacramento
13 Cty. (1969) 71 Cal. 2d 276, 281 (internal citations omitted).
14 Defendants’ sixth affirmative defense alleges that “Defendants have been
15 damaged in an amount equal to or greater than the amount of damages, if any, to
16 which Plaintiffs might be entitled.” (RJN, Ex. G.) Plaintiff is therefore entitled to
17 a description of the damages, when the damages occurred, and the amount of
18 damages being claimed.
19 3. Form Interrogatories related to investigation (12.1 thru
20 12.6)
21 “Interrogatories relevant to the subject matter are permissible including
22 questions which might possibly lead to the discovery of admissible evidence or
23 information which would be helpful in preparing for the trial of a particular cause.”
24 Deyo v. Kilbourne (1978) 84 Cal. App. 3d 771, 781. “Interrogatories also serve to
25 facilitate preparation for trial by providing a means of securing evidence and
26 evidentiary leads.” Ibid. at 779. It is also appropriate for a party to serve
27 interrogatories seeking the identification of documents that supports a defendant’s
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1 defenses. Thoren v. Johnston & Washer (1972) 29 Cal. App. 3d 270, 274. If FCP
2 Private has any information with respect to any investigation that may have been
3 conducted with respect to Plaintiff’s funds that were transferred to its account,
4 Plaintiff is entitled to that information.
5 4. Form Interrogatories related to statutory or regulatory
6 violations (14.1)
7 Defendants’ seventh affirmative defense alleges that “Plaintiffs are barred in
8 whole or in part from prosecuting the purported causes of action set forth in the
9 Complaint by the doctrine of unclean hands.” (RJN, Ex. G.) Plaintiff is entitled to
10 any discovery relating to statutory or regulatory rules that FCP Private contends he
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11 has broken. Burke, supra, 71 Cal. 2d at 281.
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12 5. Form Interrogatories related to denials and special or
13 affirmative defenses (15.1)
14 It is appropriate to serve interrogatories requiring the disclosure of the
15 identity and location of persons having knowledge of relevant facts. Deyo v.
16 Kilbourne (1978) 84 Cal. App. 3d 771, 781. FCP Corporate’s failure to supply
17 specific facts supporting each of its general denial and nine affirmative defenses in
18 response to Form Interrogatory No. 15.1 prevents Plaintiffs from determining
19 whether those defenses have merit or are a sham. Burke, supra, 71 Cal.2d at 285
20 (“[N]o reason appears why such an interrogatory should not be permitted under
21 this principle where, as here, the answer consists solely of a disfavored overbroad
22 general denial which gives the plaintiff no guidance whatsoever regarding what
23 specific matters legitimately are at issue and warrant discovery.”) Plaintiffs are not
24 required to guess as which facts, witnesses, documents, and other information
25 support FCP Private’s contentions. Because FCP Private lacks any legitimate
26 grounds to refuse to produce information responsive to Plaintiffs’ form
27 interrogatories, this motion to compel must be granted.
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1 6. Form Interrogatories related to responses to request for
2 admissions (17.1)
3 RFAs are aimed at resolving triable issues, narrowing the matters in dispute,
4 and expediting the trial. Orange County Water Dist. v. The Arnold Eng. Co.
5 (2018) 31 Cal. App. 5th 96, 115; Murillo v. Superior Court (2006) 143 Cal. App.
6 4th 730, 735. Each of these requests are designed to serve the purpose of
7 discovery, i.e. provide greater assistance to the parties in ascertaining the truth, and
8 by providing an effective means of detecting and exposing false, fraudulent, and
9 sham claims and defenses. Deyo v. Kilbourne (1978) 84 Cal. App. 3d 771, 779.
10 Form Interrogatory 17.1 seeks facts, witnesses, and documents related to
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11 each RFA that is not an unqualified admission. FCP Private should be ordered to
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12 provide meaningful responses.
13 7. Form Interrogatories related to contracts (50.1 thru 50.6)
14 The SAC alleges two different breaches of contract. Because Form
15 Interrogatories No. 50.1-50.6 request information pertaining to private contracts
16 between FCP Private and Plaintiff, its irrelevance objections do not excuse FCP
17 Private from producing responsive information. See Deyo v. Kilbourne, 84 Cal.
18 App. 3d 771, 783 (1978) (“A party cannot state, ‘not applicable’ where the
19 interrogatory is clearly applicable to him.”).
20 D. FCP Private’s Responses to Requests for Production Are Evasive
21 and Without Merit
22 A party may move for an order compelling further response to requests for
23 documents if: “(1) A statement of compliance with the demand is incomplete.
24 (2) A representation of inability to comply is inadequate, incomplete, or evasive.
25 (3) An objection in the response is without merit or too general.” Cal. Civ. Proc.
26 Code § 2031.310(a). “[T]he scope of permissible discovery is one of reason, logic
27 and common sense.” Seahaus La Jolla Owners Assn. v. Superior Court (2014) 224
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1 Cal. App. 4th 754, 767. In the context of a request to produce documents, “where .
2 . . there is no privilege issue or claim of attorney work product, that burden is met
3 simply by a fact-specific showing of relevance.” Glenfed Dev. Corp. v. Superior
4 Court (1997) 53 Cal. App. 4th 1113, 1117.
5 Plaintiff’s RFPs are drawn directly from the SAC. They inquire into the
6 nature and ownership of FCP Private, its relationship with respect to the parties,
7 documents related to the stolen funds, documents related to agreements between
8 the parties, and documents relating to employees/agents who may have knowledge
9 about the allegations. Reason, logic, and common sense dictate that Plaintiff’s
10 discovery seeks relevant information.
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11 The Discovery Act requires FCP Private to produce responsive documents in
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12 her possession, custody, or control. Cal. Code. Civ. Pro. §§ 2031.210, 2031.220,
13 2031.230, 2031.240. The only exception to this requirement is that FCP Private
14 does not need to produce documents that were previously produced in this action.
15 Ibid. Because FCP Private has not produced any documents in this action, this
16 exception does not apply.
17 In response to thirty RFPs, FCP Private makes a baseless “financial privacy”
18 objection, even if the request relates to Mr. Schaub or his company, TLG. If there
19 are legitimate concerns regarding the private information of individuals who are
20 not parties to this case, those pieces of information can be redacted. Pioneer
21 Electronics (USA), Inc. v. Superior Court (2007) 40 Cal. 4th 360, 371 (“Protective
22 measures, safeguards and other alternatives may minimize the privacy intrusion.”).
23 Plaintiff is not requesting information that would invade the privacy rights of third
24 parties—Plaintiff does not even know what types of documents exist and the
25 information contained therein. Thus, this motion to compel should be granted.
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1 E. FCP Private’s Responses to Requests for Admission Are Evasive
2 and Without Merit
3 “[T]he party requesting admissions may move for an order compelling a
4 further response if that party deems that either or both of the following apply:
5 (1) An answer to a particular request is evasive or incomplete. (2) An objection to
6 a particular request is without merit or too general.” Cal. Civ. Proc. Code
7 § 2033.290(a).
8 An answer to a request for admission (“RFA”) must be “as complete and
9 straightforward as the information reasonably available to the responding party
10 permits.” Cal. Civ. Proc. Code § 2033.220(a). This requires a responding party to
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11 admit or deny as much of the matter addressed in the request as possible, or specify
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12 which parts of the request to which the responding party lacks sufficient
13 information or knowledge. Ibid. § 2033.220(b).
14 The ability to object to RFAs are limited. FCP Private’s objection that the
15 RFAs are compound, burdensome, and vague are nuisance objections. See
16 Collisson & Kaplan v. Hartunian, 21 Cal. App. 4th 1611, 1617-18 (1994) (totally
17 rejecting defendants’ contention that their responses were proper and finding that
18 “[f]or the most part, it engages in semantic exercises, discussing the claimed
19 inherent ambiguity of the phrase “and/or”).
20 Each of Plaintiff’s RFAs are framed succinctly and inquire into a specific
21 matter within FCP Private’s personal knowledge. There is nothing in the RFAs
22 that would prevent FCP Private from providing a compliant response to each
23 request. “By objecting to the requests as a whole, without some attempt to admit
24 or deny in part, and by making no attempt to answer with an explanation of its
25 inability, it failed to show the “good faith” required by the statute.” Cembrook v.
26 Superior Ct. In & For City & Cty. of San Francisco, 56 Cal. 2d 423, 430 (1961).
27 The Motion should be granted with respect to the RFAs.
28
10
SCHAUB’S MEMORANDUM OF POINTS & AUTHORITIES TO COMPEL
DISCOVERY BY FCP PRIVATE
1 F. FCP Private Should Be Sanctioned
2 Where a party served with contention discovery deprives his or her
3 adversary of responsive information by a false or incomplete response, the party
4 has engaged in a discovery abuse and is subject to sanctions. Thoren, supra, 29
5 Cal.App.3d at 274. The issues raised by this Motion are not complicated or
6 controversial. FCP Private has refused to disclose relevant information pertaining
7 to the allegations of the SAC, its denials and defenses, and refused to produce a
8 single document. FCP Private’s counsel agreed to produce responses to Plaintiff’s
9 written discovery and produce documents no later than December 28, 2021. FCP
10 Private and its counsel failed to comply with this agreement and only served
TELEPHONE 310-826-4700; FACSIMILE 310-826-4711
Spertus, Landes & Umhofer, LLP
11 frivolous objections.
1990 SOUTH BUNDY DR., SUITE 705
LOS ANGELES, CA 90025
Preview
1 SPERTUS, LANDES & UMHOFER, LLP Matthew Donald Umhofer (SBN 206607) 2 Diane H. Bang (SBN 271939) 1990 South Bundy Dr., Suite 705 3 Los Angeles, California 90025 Telephone: (310) 826-4700 4 Facsimile: (310) 826-4711 matthew@spertuslaw.com 5 diane@spertuslaw.com 6 Attorneys for Mark Schaub and TLG Ltd. 7 SUPERIOR COURT OF THE STATE OF CALIFORNIA 8 FOR THE COUNTY OF SANTA BARBARA 9 10 MARK SCHAUB, an individual; TELEPHONE 310-826-4700; FACSIMILE 310-826-4711 Case No.: 20CV02113 Spertus, Landes & Umhofer, LLP TLG LTD., a Hong Kong limited 11 liability company, 1990 SOUTH BUNDY DR., SUITE 705 Hon. Donna D. Geck LOS ANGELES, CA 90025 12 Plaintiffs, 13 PLAINTIFF MARK SCHAUB’S v. MEMORANDUM OF POINTS & 14 AUTHORITIES IN SUPPORT OF ANDREW WYLES WATERS, an MOTION TO COMPEL FURTHER individual; FCP CORPORATE (HK) RESPONSES BY DEFENDANT FCP 15 LTD., a Hong Kong limited liability PRIVATE, LLC. AND REQUEST company; FCP PRIVATE, LLC, a FOR SANCTIONS; DECLARATION 16 California limited liability OF DIANE H. BANG AND EXHIBITS corporation; and DOES 1 through 10 17 inclusive, [Notice of Motion to Compel Further 18 Defendants. Responses to Interrogatories; Notice of Motion to Compel Further Responses to 19 Requests for Production; Notice of Motion to Compel Further Responses to 20 Requests for Admissions; Separate Statement; and Request for Judicial 21 Notice filed concurrently] 22 Hearing Date: August 12, 2022 Hearing Time: 10:00 a.m. 23 Dept.: 4 24 SAC filed: June 14, 2021 Trial: Not set 25 26 27 28 SCHAUB’S MEMORANDUM OF POINTS & AUTHORITIES TO COMPEL DISCOVERY BY FCP PRIVATE 1 TABLE OF CONTENTS 2 PAGE 3 MEMORANDUM OF POINTS AND AUTHORITIES........................................ 1 4 I. INTRODUCTION ........................................................................................ 1 5 II. FACTUAL BACKGROUND ...................................................................... 2 6 A. Overview of Plaintiffs’ Allegations ................................................... 2 7 B. Discovery Served on Defendants ....................................................... 3 8 III. ARGUMENT ............................................................................................... 4 9 A. Plaintiff Is Entitled To Expansive Discovery Rights ......................... 4 10 B. Objections Based On A Breakdown Of The Attorney-Client Relationship ....................................................................................... 5 TELEPHONE 310-826-4700; FACSIMILE 310-826-4711 11 Spertus, Landes & Umhofer, LLP C. FCP Private’s Responses to Form Interrogatories Are Evasive 1990 SOUTH BUNDY DR., SUITE 705 12 and Without Merit .............................................................................. 5 LOS ANGELES, CA 90025 13 1. Form Interrogatories related to insurance (4.1 and 4.2) .......... 5 14 2. Form Interrogatories related to property damage and other damages (7.1, 7.2, 9.1, 9.2) ............................................ 6 15 3. Form Interrogatories related to investigation (12.1 thru 16 12.6) ......................................................................................... 6 17 4. Form Interrogatories related to statutory or regulatory violations (14.1) ....................................................................... 7 18 5. Form Interrogatories related to denials and special or 19 affirmative defenses (15.1) ...................................................... 7 20 6. Form Interrogatories related to responses to request for admissions (17.1) ..................................................................... 8 21 7. Form Interrogatories related to contracts (50.1 thru 50.6) ...... 8 22 D. FCP Private’s Responses to Requests for Production Are 23 Evasive and Without Merit ................................................................ 8 24 E. FCP Private’s Responses to Requests for Admission Are Evasive and Without Merit .............................................................. 10 25 F. FCP Private Should Be Sanctioned ................................................. 11 26 IV. CONCLUSION .......................................................................................... 11 27 28 i SCHAUB’S MEMORANDUM OF POINTS & AUTHORITIES TO COMPEL DISCOVERY BY FCP PRIVATE 1 TABLE OF AUTHORITIES 2 CASES PAGE(S) 3 Burke v. Superior Ct. of Sacramento Cty., (1969) 71 Cal. 2d 276......................................................................................... 6, 7 4 Cembrook v. Superior Ct. In & For City & Cty. of San Francisco, 5 56 Cal. 2d 423 (1961)........................................................................................... 10 6 Collisson & Kaplan v. Hartunian, 21 Cal. App. 4th 1611 (1994) .............................................................................. 10 7 Deyo v. Kilbourne, 8 (1978) 84 Cal. App. 3d 771............................................................................ 6, 7, 8 9 Glenfed Dev. Corp. v. Superior Court, (1997) 53 Cal. App. 4th 1113 ................................................................................ 9 10 Lopez v. Watchtower Bible & Tract Soc’y of N.Y., Inc., TELEPHONE 310-826-4700; FACSIMILE 310-826-4711 11 Spertus, Landes & Umhofer, LLP (2016) 246 Cal. App. 4th 566 ............................................................................ 1, 4 1990 SOUTH BUNDY DR., SUITE 705 12 Murillo v. Superior Court, LOS ANGELES, CA 90025 (2006) 143 Cal. App. 4th 730 ................................................................................ 8 13 Orange County Water Dist. v. The Arnold Eng. Co., 14 (2018) 31 Cal. App. 5th 96 .................................................................................... 8 15 Pioneer Electronics (USA), Inc. v. Superior Court, (2007) 40 Cal. 4th 360 ........................................................................................... 9 16 Seahaus La Jolla Owners Assn. v. Superior Court, 17 (2014) 224 Cal. App. 4th 754 ................................................................................ 8 18 Thomas G. Ferruzzo, Inc. v. Superior Court, (1980) 104 Cal. App. 3d 501.................................................................................. 4 19 Thoren v. Johnston & Washer, 20 (1972) 29 Cal. App. 3d 270.............................................................................. 7, 11 21 STATUTES 22 Cal. Civ. Proc. Code § 2017.010 ............................................................................... 4 23 Cal. Civ. Proc. Code § 2017.210 ............................................................................... 6 24 Cal. Civ. Proc. Code § 2023.010 ............................................................................... 4 25 Cal. Civ. Proc. Code § 2030.300(a)........................................................................... 5 26 Cal. Civ. Proc. Code § 2030.300(d) ........................................................................ 11 27 Cal. Civ. Proc. Code § 2031.210 ............................................................................... 9 28 Cal. Civ. Proc. Code § 2031.220 ............................................................................... 9 ii SCHAUB’S MEMORANDUM OF POINTS & AUTHORITIES TO COMPEL DISCOVERY BY FCP PRIVATE 1 Cal. Civ. Proc. Code § 2031.230 ............................................................................... 9 2 Cal. Civ. Proc. Code § 2031.240 ............................................................................... 9 3 Cal. Civ. Proc. Code § 2031.310(a)........................................................................... 8 4 Cal. Civ. Proc. Code § 2031.310(h) ........................................................................ 11 5 Cal. Civ. Proc. Code § 2033.220(a)......................................................................... 10 6 Cal. Civ. Proc. Code § 2033.290(a)......................................................................... 10 7 Cal. Civ. Proc. Code § 2033.290(d) ........................................................................ 11 8 9 10 TELEPHONE 310-826-4700; FACSIMILE 310-826-4711 11 Spertus, Landes & Umhofer, LLP 1990 SOUTH BUNDY DR., SUITE 705 12 LOS ANGELES, CA 90025 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 iii SCHAUB’S MEMORANDUM OF POINTS & AUTHORITIES TO COMPEL DISCOVERY BY FCP PRIVATE 1 MEMORANDUM OF POINTS AND AUTHORITIES 2 I. INTRODUCTION 3 Plaintiffs Mark Schaub and his company, TLG Ltd., had $2 million stolen 4 from them by Defendants. Plaintiffs were fraudulently induced into sending funds 5 to accounts controlled by Defendant Andrew Waters, and now Defendant Waters 6 refuses to return those funds, making up more lies along the way. Through his 7 companies, Defendants FCP Corporate Ltd. and FCP Private, LLC, Defendant 8 Waters has been operating a Ponzi scheme, luring unsuspecting wealthy investors 9 into sending him hundreds of thousands of dollars, which he then misappropriates 10 for his own personal use. (Request for Judicial Notice (“RJN”) Ex. F (Second Am. TELEPHONE 310-826-4700; FACSIMILE 310-826-4711 Spertus, Landes & Umhofer, LLP 11 Compl. (“SAC”)) ¶ 1.) Defendant Waters created various shell companies to 1990 SOUTH BUNDY DR., SUITE 705 LOS ANGELES, CA 90025 12 mislead potential investors, including Plaintiffs, into believing each company 13 would be profitable. (Ibid.) Plaintiffs are entitled to discovery regarding these 14 companies in order to prove up his claims for conversion, fraud, concealment, 15 breaches of contract, and unjust enrichment. 16 Under California law, parties are afforded expansive discovery rights, with 17 rules liberally applied in favor of discovery. Lopez v. Watchtower Bible & Tract 18 Soc’y of N.Y., Inc. (2016) 246 Cal. App. 4th 566, 590-91. Defendants cannot 19 ignore these rights by serving nothing but unmeritorious, evasive objections, as 20 they have done here. Defendants were given two extensions of time to respond 21 and produce documents, first as a courtesy because of the holidays, and second 22 based on counsel’s representation that “the discovery is voluminous.” (Decl. of 23 Diane H. Bang in Supp. of Mot. to Compel (“Bang Decl.”) ¶¶ 3-4, Ex. A.) Despite 24 the courtesy given, Defendants served only boilerplate objections and no 25 documents, even though counsel agreed in writing that Dixon would respond to 26 Plaintiffs’ contention discovery on December 28, 2022. Defendants should be 27 sanctioned for their conduct for this type of misuse of the discovery process. 28 1 SCHAUB’S MEMORANDUM OF POINTS & AUTHORITIES TO COMPEL DISCOVERY BY FCP PRIVATE 1 II. FACTUAL BACKGROUND 2 A. Overview of Plaintiffs’ Allegations 3 Through his companies, Defendants FCP Corporate Ltd. and FCP Private, 4 LLC, Defendant Waters has essentially been operating a shell factory enterprise by 5 creating various startup companies and misleading potential investors to believe 6 each company would be operating and profitable. Plaintiff Mark Schaub is an 7 individual who, while living in Hong Kong, was befriended and then ultimately 8 defrauded by Defendant Waters. He believed Defendant Waters to be a successful 9 businessman and that he was running real businesses with real potential for growth 10 and profitability. (SAC ¶¶ 17-18.) TELEPHONE 310-826-4700; FACSIMILE 310-826-4711 Spertus, Landes & Umhofer, LLP 11 In 2019, Mr. Schaub was informed that HSBC was planning to close his 1990 SOUTH BUNDY DR., SUITE 705 LOS ANGELES, CA 90025 12 company account, TLG Ltd. Defendant Waters convinced Mr. Schaub that HSBC 13 was closing the account because the bank believed it to contain tainted funds. Mr. 14 Schaub was unfamiliar with Hong Kong banking regulations and believed 15 Defendant Waters’ representations. Defendant Waters induced Mr. Schaub to have 16 approximately $50,000 transferred to the FCP Corporate account controlled by 17 Waters, promising that this was a client account and that the funds would be held 18 in trust. (SAC ¶ 27.) 19 In July 2019, instead of the planned $50,000, approximately $2 million was 20 mistakenly transferred from TLG to FCP Corporate’s account. (SAC ¶ 32.) When 21 Mr. Schaub inquired about the money, rather than returning the funds to Mr. 22 Schaub, Defendant Waters proceeded to drain FCP Corporate’s account of the 23 entire $2 million. (SAC ¶ 41.) Meanwhile, Defendant Waters falsely told Mr. 24 Schaub that the bank had frozen the accounts where Plaintiffs’ funds were 25 transferred to, that the bank believed the funds were from an illegitimate source, 26 and that he would have to go to Hong Kong to resolve the situation with the frozen 27 accounts. For months, Defendant Waters proceeded to string Mr. Schaub along 28 2 SCHAUB’S MEMORANDUM OF POINTS & AUTHORITIES TO COMPEL DISCOVERY BY FCP PRIVATE 1 with these lies. (SAC ¶¶ 42-43.) Mr. Schaub demanded the immediate return of 2 his funds, Defendant Waters refused, and he continues to refuse to this day. 3 B. Discovery Served on Defendants 4 On October 29, 2021, Plaintiff served a set of form interrogatories, requests 5 for production of documents (“RFPs”), and requests for admissions (“RFAs”) 6 relating to the allegations of the SAC on all three defendants. (Bang Decl. ¶ 2.) 7 On November 16, 2021, per Defendants’ request, Plaintiffs agreed to extend the 8 deadline for Defendants’ discovery responses to December 15, 2021, as a courtesy 9 to counsel. (Bang Decl. ¶ 3, Ex. A.) On December 10, 2021, Defendants made a 10 second request to extend the deadline to respond to discovery, stating that “the TELEPHONE 310-826-4700; FACSIMILE 310-826-4711 Spertus, Landes & Umhofer, LLP 11 discovery is voluminous.” (Ibid. ¶ 4, Ex. A) Believing that Defendants would 1990 SOUTH BUNDY DR., SUITE 705 LOS ANGELES, CA 90025 12 respond in good faith and that they were in the process of gathering and reviewing 13 documents for production, Plaintiffs agreed to extend the deadline to December 28, 14 2021, giving Defendants an additional four weeks from their statutory deadline to 15 respond. (Ibid. ¶ 5.) 16 However, on the agreed upon deadline, Defendants served boilerplate, 17 evasive objections and did not produce a single document. (Bang Decl. ¶ 6, Exs. 18 B-D.) One of the objections repeated by Defendants in response to every request 19 was that “[b]ecause Defendants’ counsel’s motion to be relieved as counsel was 20 based on a material breakdown in the attorney-client relationship, Defendants’ 21 counsel is not able to provide full and complete responses at this time.” (See ibid.) 22 Yet, in counsel’s communications with Plaintiffs’ counsel regarding the second 23 extension, there was no indication that discovery responses would be deficient in 24 any way, and Plaintiffs were informed that “counsel will be substituting into the 25 case.” (Bang Decl. ¶ 4, Ex. A.) 26 Even though counsel’s motion to be relieved as counsel was filed in October 27 2021, (RJN, Ex. H), and even though California law requires corporate entities to 28 3 SCHAUB’S MEMORANDUM OF POINTS & AUTHORITIES TO COMPEL DISCOVERY BY FCP PRIVATE 1 be represented by counsel, Thomas G. Ferruzzo, Inc. v. Superior Court (1980) 104 2 Cal. App. 3d 501, 503 (“The rule is clear in this state that, with the sole exception 3 of small claims court, a corporation cannot act in propria persona in a California 4 state court.”), no counsel has appeared on behalf of Defendants FCP Corporate 5 Ltd. and FCP Private, LLC.1 Defendants have now had plenty of time obtain new 6 counsel and amend or supplement their discovery responses, but have failed to do 7 so. Accordingly, Plaintiff Mark Schaub’s Motion to Compel Further Responses 8 (the “Motion”) should be granted and sanctions should be awarded. 9 III. ARGUMENT 10 A. Plaintiff Is Entitled To Expansive Discovery Rights TELEPHONE 310-826-4700; FACSIMILE 310-826-4711 Spertus, Landes & Umhofer, LLP 11 “California law provides parties with expansive discovery rights.” Lopez v. 1990 SOUTH BUNDY DR., SUITE 705 LOS ANGELES, CA 90025 12 Watchtower Bible & Tract Soc’y of N.Y., Inc. (2016) 246 Cal. App. 4th 566, 590. 13 “[A]ny party may obtain discovery regarding any matter, not privileged, that is 14 relevant to the subject matter involved in the pending action . . . if the matter either 15 is itself admissible in evidence or appears reasonably calculated to lead to the 16 discovery of admissible evidence.” Cal. Civ. Proc. Code § 2017.010. “The 17 statutory phrase ‘subject matter’ is broader than the issues and is not limited to 18 admissible evidence.” Lopez, 246 Cal. App. 4th at 591 (citation and internal 19 quotation marks omitted). The discovery rules “are applied liberally in favor of 20 discovery [citation], and (contrary to popular belief), fishing expeditions are 21 permissible in some cases.” Ibid. (citation and internal quotation marks omitted). 22 Misuses of the discovery process include unmeritorious objections to 23 discovery without substantial justification and making evasive responses. Cal. Civ. 24 Proc. Code § 2023.010. These are precisely the type of objections set forth by FCP 25 Corporate, which the Court should not permit to stand. 26 27 1 If an attorney does not appear on behalf of Defendants FCP Corporate and FCP Private, Plaintiffs intend to file a motion to strike Defendants FCP Corporate 28 and FCP Private’s Answer and request that default be entered against these entities. 4 SCHAUB’S MEMORANDUM OF POINTS & AUTHORITIES TO COMPEL DISCOVERY BY FCP PRIVATE 1 B. Objections Based On A Breakdown Of The Attorney-Client 2 Relationship 3 In each and every response to Mr. Schaub’s discovery requests, FCP Private 4 states that “[b]ecause Defendants’ counsel’s motion to be relieved as counsel was 5 based on a material breakdown in the attorney-client relationship, Defendants’ 6 counsel is not able to provide full and complete responses at this time.” This is not 7 a basis for withholding discovery. In any case, FCP Private has been on notice 8 since October 12, 2021, that its attorney was requesting to be relieved as counsel 9 from this case. (RJN, Ex. H.) FCP Private did not file an objection to counsel’s 10 request, (RJN, Ex. I), and the Court granted the motion to be relieved as counsel on TELEPHONE 310-826-4700; FACSIMILE 310-826-4711 Spertus, Landes & Umhofer, LLP 11 January 7, 2022, (RJN, Ex. J). FCP Private has had ample time to find new 1990 SOUTH BUNDY DR., SUITE 705 LOS ANGELES, CA 90025 12 counsel and amend or supplement its responses, but has failed to do so. The 13 responses should be amended with this objection removed. 14 C. FCP Private’s Responses to Form Interrogatories Are Evasive 15 and Without Merit 16 A party may move for an order compelling a further response if: “(1) An 17 answer to a particular interrogatory is evasive or incomplete. (2) An exercise of 18 the option to produce documents under Section 2030.230 is unwarranted or the 19 required specification of those documents is inadequate. (3) An objection to an 20 interrogatory is without merit or too general.” Cal. Civ. Proc. Code § 2030.300(a). 21 Plaintiff’s form interrogatories, which are approved by the Judicial Council, 22 requested that FCP Private identify which specific allegations of the SAC it denies 23 and to disclose what, if any, facts, witnesses, and documents would support those 24 denials and its affirmative defenses, its position on Plaintiff’s contracts claims, and 25 denials to RFAs. 26 1. Form Interrogatories related to insurance (4.1 and 4.2) 27 Because Plaintiffs were authorized by statute to request information 28 5 SCHAUB’S MEMORANDUM OF POINTS & AUTHORITIES TO COMPEL DISCOVERY BY FCP PRIVATE 1 pertaining to FCP Private’s liability insurance, FCP Private’s refusal to produce 2 that information in response to Form Interrogatory Nos. 4.1 and 4.2 is improper. 3 See Cal. Code Civ. Pro. § 2017.210 (“A party may obtain discovery of the 4 existence and contents of any agreement under which any insurance carrier may be 5 liable to satisfy in whole or in part a judgment that may be entered in the action or 6 to indemnify or reimburse for payments made to satisfy the judgment.”). 7 2. Form Interrogatories related to property damage and other 8 damages (7.1, 7.2, 9.1, 9.2) 9 “[A] defendant in California courts may be required through discovery to 10 disclose not only the evidentiary facts underlying his affirmative defenses and TELEPHONE 310-826-4700; FACSIMILE 310-826-4711 Spertus, Landes & Umhofer, LLP 11 denials but also whether or not he makes a particular contention, either as to the 1990 SOUTH BUNDY DR., SUITE 705 LOS ANGELES, CA 90025 12 facts or as to the possible issues in the case.” Burke v. Superior Ct. of Sacramento 13 Cty. (1969) 71 Cal. 2d 276, 281 (internal citations omitted). 14 Defendants’ sixth affirmative defense alleges that “Defendants have been 15 damaged in an amount equal to or greater than the amount of damages, if any, to 16 which Plaintiffs might be entitled.” (RJN, Ex. G.) Plaintiff is therefore entitled to 17 a description of the damages, when the damages occurred, and the amount of 18 damages being claimed. 19 3. Form Interrogatories related to investigation (12.1 thru 20 12.6) 21 “Interrogatories relevant to the subject matter are permissible including 22 questions which might possibly lead to the discovery of admissible evidence or 23 information which would be helpful in preparing for the trial of a particular cause.” 24 Deyo v. Kilbourne (1978) 84 Cal. App. 3d 771, 781. “Interrogatories also serve to 25 facilitate preparation for trial by providing a means of securing evidence and 26 evidentiary leads.” Ibid. at 779. It is also appropriate for a party to serve 27 interrogatories seeking the identification of documents that supports a defendant’s 28 6 SCHAUB’S MEMORANDUM OF POINTS & AUTHORITIES TO COMPEL DISCOVERY BY FCP PRIVATE 1 defenses. Thoren v. Johnston & Washer (1972) 29 Cal. App. 3d 270, 274. If FCP 2 Private has any information with respect to any investigation that may have been 3 conducted with respect to Plaintiff’s funds that were transferred to its account, 4 Plaintiff is entitled to that information. 5 4. Form Interrogatories related to statutory or regulatory 6 violations (14.1) 7 Defendants’ seventh affirmative defense alleges that “Plaintiffs are barred in 8 whole or in part from prosecuting the purported causes of action set forth in the 9 Complaint by the doctrine of unclean hands.” (RJN, Ex. G.) Plaintiff is entitled to 10 any discovery relating to statutory or regulatory rules that FCP Private contends he TELEPHONE 310-826-4700; FACSIMILE 310-826-4711 Spertus, Landes & Umhofer, LLP 11 has broken. Burke, supra, 71 Cal. 2d at 281. 1990 SOUTH BUNDY DR., SUITE 705 LOS ANGELES, CA 90025 12 5. Form Interrogatories related to denials and special or 13 affirmative defenses (15.1) 14 It is appropriate to serve interrogatories requiring the disclosure of the 15 identity and location of persons having knowledge of relevant facts. Deyo v. 16 Kilbourne (1978) 84 Cal. App. 3d 771, 781. FCP Corporate’s failure to supply 17 specific facts supporting each of its general denial and nine affirmative defenses in 18 response to Form Interrogatory No. 15.1 prevents Plaintiffs from determining 19 whether those defenses have merit or are a sham. Burke, supra, 71 Cal.2d at 285 20 (“[N]o reason appears why such an interrogatory should not be permitted under 21 this principle where, as here, the answer consists solely of a disfavored overbroad 22 general denial which gives the plaintiff no guidance whatsoever regarding what 23 specific matters legitimately are at issue and warrant discovery.”) Plaintiffs are not 24 required to guess as which facts, witnesses, documents, and other information 25 support FCP Private’s contentions. Because FCP Private lacks any legitimate 26 grounds to refuse to produce information responsive to Plaintiffs’ form 27 interrogatories, this motion to compel must be granted. 28 7 SCHAUB’S MEMORANDUM OF POINTS & AUTHORITIES TO COMPEL DISCOVERY BY FCP PRIVATE 1 6. Form Interrogatories related to responses to request for 2 admissions (17.1) 3 RFAs are aimed at resolving triable issues, narrowing the matters in dispute, 4 and expediting the trial. Orange County Water Dist. v. The Arnold Eng. Co. 5 (2018) 31 Cal. App. 5th 96, 115; Murillo v. Superior Court (2006) 143 Cal. App. 6 4th 730, 735. Each of these requests are designed to serve the purpose of 7 discovery, i.e. provide greater assistance to the parties in ascertaining the truth, and 8 by providing an effective means of detecting and exposing false, fraudulent, and 9 sham claims and defenses. Deyo v. Kilbourne (1978) 84 Cal. App. 3d 771, 779. 10 Form Interrogatory 17.1 seeks facts, witnesses, and documents related to TELEPHONE 310-826-4700; FACSIMILE 310-826-4711 Spertus, Landes & Umhofer, LLP 11 each RFA that is not an unqualified admission. FCP Private should be ordered to 1990 SOUTH BUNDY DR., SUITE 705 LOS ANGELES, CA 90025 12 provide meaningful responses. 13 7. Form Interrogatories related to contracts (50.1 thru 50.6) 14 The SAC alleges two different breaches of contract. Because Form 15 Interrogatories No. 50.1-50.6 request information pertaining to private contracts 16 between FCP Private and Plaintiff, its irrelevance objections do not excuse FCP 17 Private from producing responsive information. See Deyo v. Kilbourne, 84 Cal. 18 App. 3d 771, 783 (1978) (“A party cannot state, ‘not applicable’ where the 19 interrogatory is clearly applicable to him.”). 20 D. FCP Private’s Responses to Requests for Production Are Evasive 21 and Without Merit 22 A party may move for an order compelling further response to requests for 23 documents if: “(1) A statement of compliance with the demand is incomplete. 24 (2) A representation of inability to comply is inadequate, incomplete, or evasive. 25 (3) An objection in the response is without merit or too general.” Cal. Civ. Proc. 26 Code § 2031.310(a). “[T]he scope of permissible discovery is one of reason, logic 27 and common sense.” Seahaus La Jolla Owners Assn. v. Superior Court (2014) 224 28 8 SCHAUB’S MEMORANDUM OF POINTS & AUTHORITIES TO COMPEL DISCOVERY BY FCP PRIVATE 1 Cal. App. 4th 754, 767. In the context of a request to produce documents, “where . 2 . . there is no privilege issue or claim of attorney work product, that burden is met 3 simply by a fact-specific showing of relevance.” Glenfed Dev. Corp. v. Superior 4 Court (1997) 53 Cal. App. 4th 1113, 1117. 5 Plaintiff’s RFPs are drawn directly from the SAC. They inquire into the 6 nature and ownership of FCP Private, its relationship with respect to the parties, 7 documents related to the stolen funds, documents related to agreements between 8 the parties, and documents relating to employees/agents who may have knowledge 9 about the allegations. Reason, logic, and common sense dictate that Plaintiff’s 10 discovery seeks relevant information. TELEPHONE 310-826-4700; FACSIMILE 310-826-4711 Spertus, Landes & Umhofer, LLP 11 The Discovery Act requires FCP Private to produce responsive documents in 1990 SOUTH BUNDY DR., SUITE 705 LOS ANGELES, CA 90025 12 her possession, custody, or control. Cal. Code. Civ. Pro. §§ 2031.210, 2031.220, 13 2031.230, 2031.240. The only exception to this requirement is that FCP Private 14 does not need to produce documents that were previously produced in this action. 15 Ibid. Because FCP Private has not produced any documents in this action, this 16 exception does not apply. 17 In response to thirty RFPs, FCP Private makes a baseless “financial privacy” 18 objection, even if the request relates to Mr. Schaub or his company, TLG. If there 19 are legitimate concerns regarding the private information of individuals who are 20 not parties to this case, those pieces of information can be redacted. Pioneer 21 Electronics (USA), Inc. v. Superior Court (2007) 40 Cal. 4th 360, 371 (“Protective 22 measures, safeguards and other alternatives may minimize the privacy intrusion.”). 23 Plaintiff is not requesting information that would invade the privacy rights of third 24 parties—Plaintiff does not even know what types of documents exist and the 25 information contained therein. Thus, this motion to compel should be granted. 26 27 28 9 SCHAUB’S MEMORANDUM OF POINTS & AUTHORITIES TO COMPEL DISCOVERY BY FCP PRIVATE 1 E. FCP Private’s Responses to Requests for Admission Are Evasive 2 and Without Merit 3 “[T]he party requesting admissions may move for an order compelling a 4 further response if that party deems that either or both of the following apply: 5 (1) An answer to a particular request is evasive or incomplete. (2) An objection to 6 a particular request is without merit or too general.” Cal. Civ. Proc. Code 7 § 2033.290(a). 8 An answer to a request for admission (“RFA”) must be “as complete and 9 straightforward as the information reasonably available to the responding party 10 permits.” Cal. Civ. Proc. Code § 2033.220(a). This requires a responding party to TELEPHONE 310-826-4700; FACSIMILE 310-826-4711 Spertus, Landes & Umhofer, LLP 11 admit or deny as much of the matter addressed in the request as possible, or specify 1990 SOUTH BUNDY DR., SUITE 705 LOS ANGELES, CA 90025 12 which parts of the request to which the responding party lacks sufficient 13 information or knowledge. Ibid. § 2033.220(b). 14 The ability to object to RFAs are limited. FCP Private’s objection that the 15 RFAs are compound, burdensome, and vague are nuisance objections. See 16 Collisson & Kaplan v. Hartunian, 21 Cal. App. 4th 1611, 1617-18 (1994) (totally 17 rejecting defendants’ contention that their responses were proper and finding that 18 “[f]or the most part, it engages in semantic exercises, discussing the claimed 19 inherent ambiguity of the phrase “and/or”). 20 Each of Plaintiff’s RFAs are framed succinctly and inquire into a specific 21 matter within FCP Private’s personal knowledge. There is nothing in the RFAs 22 that would prevent FCP Private from providing a compliant response to each 23 request. “By objecting to the requests as a whole, without some attempt to admit 24 or deny in part, and by making no attempt to answer with an explanation of its 25 inability, it failed to show the “good faith” required by the statute.” Cembrook v. 26 Superior Ct. In & For City & Cty. of San Francisco, 56 Cal. 2d 423, 430 (1961). 27 The Motion should be granted with respect to the RFAs. 28 10 SCHAUB’S MEMORANDUM OF POINTS & AUTHORITIES TO COMPEL DISCOVERY BY FCP PRIVATE 1 F. FCP Private Should Be Sanctioned 2 Where a party served with contention discovery deprives his or her 3 adversary of responsive information by a false or incomplete response, the party 4 has engaged in a discovery abuse and is subject to sanctions. Thoren, supra, 29 5 Cal.App.3d at 274. The issues raised by this Motion are not complicated or 6 controversial. FCP Private has refused to disclose relevant information pertaining 7 to the allegations of the SAC, its denials and defenses, and refused to produce a 8 single document. FCP Private’s counsel agreed to produce responses to Plaintiff’s 9 written discovery and produce documents no later than December 28, 2021. FCP 10 Private and its counsel failed to comply with this agreement and only served TELEPHONE 310-826-4700; FACSIMILE 310-826-4711 Spertus, Landes & Umhofer, LLP 11 frivolous objections. 1990 SOUTH BUNDY DR., SUITE 705 LOS ANGELES, CA 90025