Preview
Law Offices Of
'
MICHAEL P. RING
AND ASSOCIATES supsfiaalcolgam
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Michael P. Ring, State Bar #95922 0 UN" "'~ '
James Kelly Francis, State Bar #167059 ‘1‘)
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AWNIris L. M. Ring, State Bar #298179
1234 Santa Barbara Street ~
Darrel E.P or.E “V0 omc“
Santa Barbara, CA 93101
(805) 564-2333
By
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ATTORNEYS FOR PLAINTIFF PATSY MOLER '
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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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ANACAPA DIVISION (“I ———
FIN I...
10 PATSY MOLER, CASE NO.: 1417847
)
) SEPARATE STATEMENT OF ITEMS J "—-
11
IN DISPUTE RE MOTION TO
‘
3"“ -——-
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Plaintiff, )
12
v.
)
)
COMPEL PRODUCTION OF
COMPUTER; REQUEST FOR
__
13 SANCTIONS COD "'—
.—
) _‘
Chris Hulme, individually and dba
'_
S’I
. ) a; a.
14 Clearview Industries, Inc., and DOES l ) Date: 8/5/15 {7; a: m“ __
15
through 10, inclusive ) Time: 9:30 AM. ; é:-
SBl
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) Dept: '7'
16 Defendants. ) 1.
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EsHemm)
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17
)
)
(Assigned to the Hon. James
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18 .45 i5
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19.
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20 )
21
Plaintiff PATSY MOLER submits the following Separate Statement of Items in Dispute in
22
Support of Plaintiff‘s Motion To Compel Production Of Computer and Request For Sanctions filed
concurrently herewith.
23
24 The following are Plaintiff‘s demand for production verbatim and the responses received
25
from Defendants CLEARVIEW INDUSTRIES, INC. and CHRIS HULME, verbatim. The reasons
26 why responses should be compelled, are set forth below.
27
DEMAND FOR PRODCUTION
Clearview Industries
28
1
Separate Statement In Support of Motion To Compel
H Demand No. 2. All computers used to create the originals of all corporate records sent
to Plaintiff’s counsel by counsel for Defendant Clearview Industries, Inc. via email on May 1"4,
2015
'
RESPONSE: Objection. This request is overbroad, unduly burdensome and harassing in that
the burden, expense, and intrusiveness of this request clearly outweighs the likelihood that the
information sought of
\OOO\)O‘\UIJ>UJN
will lead to the discovery admissible evidence. This request is also
unreasonably cumulative and duplicative of previous discovery. This request calls for the production
of documents covered under the attomey-client and attomey-work product privileges.
REASON WHY A FURTHER RESPONSE SHOULD BE COMPELLED:
The request is not overbroad, unduly burdensome or harassing. In her declaration in support
of Motion for Summary J udgment/Adj udication Ms. Hulme stated that she “In response to the Court's
-
January 7, 2015 order, I began to collect the corporate minutes to respond to Plaintiffs request for
production for all corporate minutes. Clearview was incorporated in 2007 and a lot of the information
requested going back 8 years, was located in storage with other archived documents.” She also stated
“The information for the corporate minutes reflect discussions and information that was stored
electronically in archived storage and other communications, which were also stored in archived
which I converted them
NNNNNNNNND—ID—lD—lD—ID—lI—ID—‘I—ll—‘I—l
storage, into tangible form for production.” As she was able to do this since
January 7, 2015 by accessing the corporation’s computer, Defendant should be able to produce that
computer.
WNONMAWNHOWWQChMAUJNHO
Furthermore, the demand isnot burdensome, nor will production of the papers outweighs the
likelihood that the information sought will lead to the discovery of admissible evidence. Defendants
have submitted the copies of these documents allegedly created on the corporation’s computer over
the years both in discovery and in connection with the Motion for Summary Judgment. Ms. Hulme
provides, under penalty of perjury, information that clearly raises questions as to the authenticity of
the documents that Defendants are using in part to defend against Plaintiff’s claims of piercing of .
the corporate veil. That alone un-categorically makes the examination of the originals of the
documents
I
likely to lead to the discovery of admissible evidence.
Where a corporation is influenced and governed by the persons sought to be held liable for
2
Separate Statement In Support of Motion To Compel
its conduct, and there is such unity of interest and ownership that the individuality or separateness [of
the corporation has ceased to exist, or never existed in the first place, the individuals can be held
liable
:'
irrespective of the alleged corporate entity. Mesler v. Bragg Management Co., (1985) 39
Cal.3d 290; Automotriz del Golfo de California v. Resnick (1957) 47 Cal.2d 792. Also, where the
facts of the
\OOOQChUI-hWN'fl
case are such that adherence to the “fiction” of the corporation 3
I ‘6
separate existence”
would Bragg Management
I
sanction a fraud or promote injustice, the corporate veil fails.Mesler v.
Co., supra, 39 Cal.3d at 300; Automotriz del Golfo de California v. Resnick, supra, 47 Cal.2d at 796—
l797; Leek v. Cooper (2011) 194 Cal.App.4th 399.
As noted in the Rutter Group,
The alter ego doctrine usually applies where there are only a few shareholders and they have
not respected their corporation's separate identity; for example, where the shareholders:
- Fail to contribute capital, issue stock or otherwise complete formation of the corporation;
0 Use corporate assets as their own (e. g.,withdraw corporate funds for personal use without
treating such withdrawals as salaries or dividends);
- Commingle corporate funds with their personal funds; or
- Fail to observe corporate formalities fail to regularly elect directors,
(e. g., appoint officers,
hold board meetings and keep minutes or file corporate tax returns). D’Arco (2011)
NNNNNNNNND—lD—lb—ID—ID—‘h—ID—ID—ID—lv—l
[See Misik v. 197
Cal.App.4th 1065, 1073—1074; Zoran Corp. v. Chen (2010) 185 Cal.App.4th 799, 810—811; Mifi-
:
Century Ins. Co.
WNQMAWNHOOWQONMAWNHO
v. Gardner (1992) 9 Cal.App.4th 1205, 1212—1213. Cal. Prac. Guide Pers. Inj.Ch.
'
2(II)-J.
Furthermore, the computer was never previously requested nor been produced.
Regarding the assertion of a privilege, under the CCP § 2031.240 parties are required to
produce a privilege log identifying those items that are privileged so that the Court may determine
'
the validity of the alleged privileges.
As noted in the Rutter Group, “When asserting claims of privilege or attorney work product
protection, the objecting party must provide “sufficient factual information” to enable other parties
to evaluate the merits of the claim, “including, if necessary, a privilege log.” [CCP § 2031.240(c)(1:)
(emphasis added)] As the term is commonly used by courts and attorneys, a “privilege log” identifies
3
Separate Statement In Support of Motion To Compel
each document for which a privilege or work product protection is claimed, its author, recipients,
date of preparation, and the specific privilege or work product protection claimed. [Hernandez v.
Sup. Ct. (Acheson Industries, Inc.) (2003) 112 Ca1.App.4th 285, 291—292, fn. 6; see CCP .l§
2031.240(c)(2)—Legislative intent to codify concept of privilege log “as that term is used in
I
California case law”] “The information in the privilege log must be sufficiently specific to allow; a
\OWNQM-AWNH
determination of whether each withheld document isor is not (in) fact privileged.” [Wellpoint Healih
Networks, Inc. v. Sup. Ct. (McCombs) (1997) 59 Ca1.App.4th I10, 130, (parentheses added).” Cal.
Prac. Guide Civ. Pro. Before Trial Ch. 8H-6.
As such, the computer used by Defendants to create the originals of all corporate records sent
to Plaintiff‘s counsel by counsel for Defendant Clearview Industries, Inc. via email on May 14, 2015
should be produced.
Respectfully submitted,
LAW OFFICE OF MICHAEL P. RING & ASSOC.
Dated: July A, 2015
NNNNNNNNN—‘D—dD—II—ID—tl—Ib—AD—Ir—Is—A
WQQMAWNHOQWNQMAWNHO
4
Separate Statement In Support of Motion To Compel
I
PROOF OF SERVICE i
STATE OF CALIFORNIA, COUNTY OF SANTA BARBARA l
am employed
I
I in the County of Santa Barbara, State of California. I am over the age of 18
and not a party to the within action; my business address is 1234 Santa Barbara Street, Santa Barbara,
California, 93101.
I
On July 6, 2015, I served the foregoing document described as SEPARATE
\OWQOMAWNn—a
:
STATEMENT OF ITEMS IN DISPUTE RE MOTION TO COMPEL PRODUCTION OF
COMPUTER; REQUEST FOR SANCTIONS on the interested parties in this action
E _ E
.
by placing the original a true copy thereof addressed as follows:
JEFFREY M. BENNION
2869 INDIA ST
SAN DIEGO, CA 92103
jeff@]bennlonlaw.com
VIA Em”. ONLY PER
AGREEMENT OF THE PARTIES
(BY FEDERAL EXPRESS OVERNIGHT DELIVERY) I caused such documents to be
~
Ere e up by Federal Express at 1234 Santa Barbara St., Santa Barbara, California, 93101, in an
ox designated by Federal Express for overnight delivery, with delivery fees provided for.
addressed to the person on whom it is to be served.
._.._.._.._.._.._.
utHO
(BY FAX) I caused the above-referenced document(s) to be sent via facsimile to the above-
named persons at the following facsimile number:
16
& (BY ELECTRONIC
jeff@]bennionlaw.com.
SERVICE) The electronic address where I served this is
17“ FOR
(BY PLACING COLLECTION AND MAILING) I placed the above-mentioned
18 document(s) in sealed envelope(s) addressed as set forth above. and placed the envelope(s) for
collection and mailing following ordinary business practices. I am readily familiar with the finn’s
19 practice for collection and processing of correspondence for mailing with the United States Postal
Service. Under that practice it would be deposited with the US. Postal Service on that same day
20 with postage thereon fully prepaid at 1234 Santa Barbara Street, Santa Barbara, CA 93101 in the
ordinary course of business.
21
22 a
above is
(STATE) I declare under penalty of perjury under the laws of the State of California that the
true and correct.
23
Executed on July 2015, at Santa Barbara,
.mmm
6, California.
24
25
26
27
Type or Print Name
Sw
28
I
PROOF or SERVICE
Preview
Law Offices Of ' MICHAEL P. RING AND ASSOCIATES supsfiaalcolgam E $5tD Michael P. Ring, State Bar #95922 0 UN" "'~ ' James Kelly Francis, State Bar #167059 ‘1‘) 0 AWNIris L. M. Ring, State Bar #298179 1234 Santa Barbara Street ~ Darrel E.P or.E “V0 omc“ Santa Barbara, CA 93101 (805) 564-2333 By e 6,4 s "91- 99“ UI ATTORNEYS FOR PLAINTIFF PATSY MOLER ' l' SUPERIOR COURT OF THE STATE OF CALIFORNIA ' _ F '--— NDX ___ FOR THE COUNTY OF SANTA BARBARA \OOO\IO\ V ANACAPA DIVISION (“I ——— FIN I... 10 PATSY MOLER, CASE NO.: 1417847 ) ) SEPARATE STATEMENT OF ITEMS J "—- 11 IN DISPUTE RE MOTION TO ‘ 3"“ -——- ‘ m Plaintiff, ) 12 v. ) ) COMPEL PRODUCTION OF COMPUTER; REQUEST FOR __ 13 SANCTIONS COD "'— .— ) _‘ Chris Hulme, individually and dba '_ S’I . ) a; a. 14 Clearview Industries, Inc., and DOES l ) Date: 8/5/15 {7; a: m“ __ 15 through 10, inclusive ) Time: 9:30 AM. ; é:- SBl I ) Dept: '7' 16 Defendants. ) 1. 0‘ ri-i EsHemm) ‘ 17 ) ) (Assigned to the Hon. James 1 L" -; '5 5- " .m ) 5 18 .45 i5 ) ) 19. ) 20 ) 21 Plaintiff PATSY MOLER submits the following Separate Statement of Items in Dispute in 22 Support of Plaintiff‘s Motion To Compel Production Of Computer and Request For Sanctions filed concurrently herewith. 23 24 The following are Plaintiff‘s demand for production verbatim and the responses received 25 from Defendants CLEARVIEW INDUSTRIES, INC. and CHRIS HULME, verbatim. The reasons 26 why responses should be compelled, are set forth below. 27 DEMAND FOR PRODCUTION Clearview Industries 28 1 Separate Statement In Support of Motion To Compel H Demand No. 2. All computers used to create the originals of all corporate records sent to Plaintiff’s counsel by counsel for Defendant Clearview Industries, Inc. via email on May 1"4, 2015 ' RESPONSE: Objection. This request is overbroad, unduly burdensome and harassing in that the burden, expense, and intrusiveness of this request clearly outweighs the likelihood that the information sought of \OOO\)O‘\UIJ>UJN will lead to the discovery admissible evidence. This request is also unreasonably cumulative and duplicative of previous discovery. This request calls for the production of documents covered under the attomey-client and attomey-work product privileges. REASON WHY A FURTHER RESPONSE SHOULD BE COMPELLED: The request is not overbroad, unduly burdensome or harassing. In her declaration in support of Motion for Summary J udgment/Adj udication Ms. Hulme stated that she “In response to the Court's - January 7, 2015 order, I began to collect the corporate minutes to respond to Plaintiffs request for production for all corporate minutes. Clearview was incorporated in 2007 and a lot of the information requested going back 8 years, was located in storage with other archived documents.” She also stated “The information for the corporate minutes reflect discussions and information that was stored electronically in archived storage and other communications, which were also stored in archived which I converted them NNNNNNNNND—ID—lD—lD—ID—lI—ID—‘I—ll—‘I—l storage, into tangible form for production.” As she was able to do this since January 7, 2015 by accessing the corporation’s computer, Defendant should be able to produce that computer. WNONMAWNHOWWQChMAUJNHO Furthermore, the demand isnot burdensome, nor will production of the papers outweighs the likelihood that the information sought will lead to the discovery of admissible evidence. Defendants have submitted the copies of these documents allegedly created on the corporation’s computer over the years both in discovery and in connection with the Motion for Summary Judgment. Ms. Hulme provides, under penalty of perjury, information that clearly raises questions as to the authenticity of the documents that Defendants are using in part to defend against Plaintiff’s claims of piercing of . the corporate veil. That alone un-categorically makes the examination of the originals of the documents I likely to lead to the discovery of admissible evidence. Where a corporation is influenced and governed by the persons sought to be held liable for 2 Separate Statement In Support of Motion To Compel its conduct, and there is such unity of interest and ownership that the individuality or separateness [of the corporation has ceased to exist, or never existed in the first place, the individuals can be held liable :' irrespective of the alleged corporate entity. Mesler v. Bragg Management Co., (1985) 39 Cal.3d 290; Automotriz del Golfo de California v. Resnick (1957) 47 Cal.2d 792. Also, where the facts of the \OOOQChUI-hWN'fl case are such that adherence to the “fiction” of the corporation 3 I ‘6 separate existence” would Bragg Management I sanction a fraud or promote injustice, the corporate veil fails.Mesler v. Co., supra, 39 Cal.3d at 300; Automotriz del Golfo de California v. Resnick, supra, 47 Cal.2d at 796— l797; Leek v. Cooper (2011) 194 Cal.App.4th 399. As noted in the Rutter Group, The alter ego doctrine usually applies where there are only a few shareholders and they have not respected their corporation's separate identity; for example, where the shareholders: - Fail to contribute capital, issue stock or otherwise complete formation of the corporation; 0 Use corporate assets as their own (e. g.,withdraw corporate funds for personal use without treating such withdrawals as salaries or dividends); - Commingle corporate funds with their personal funds; or - Fail to observe corporate formalities fail to regularly elect directors, (e. g., appoint officers, hold board meetings and keep minutes or file corporate tax returns). D’Arco (2011) NNNNNNNNND—lD—lb—ID—ID—‘h—ID—ID—ID—lv—l [See Misik v. 197 Cal.App.4th 1065, 1073—1074; Zoran Corp. v. Chen (2010) 185 Cal.App.4th 799, 810—811; Mifi- : Century Ins. Co. WNQMAWNHOOWQONMAWNHO v. Gardner (1992) 9 Cal.App.4th 1205, 1212—1213. Cal. Prac. Guide Pers. Inj.Ch. ' 2(II)-J. Furthermore, the computer was never previously requested nor been produced. Regarding the assertion of a privilege, under the CCP § 2031.240 parties are required to produce a privilege log identifying those items that are privileged so that the Court may determine ' the validity of the alleged privileges. As noted in the Rutter Group, “When asserting claims of privilege or attorney work product protection, the objecting party must provide “sufficient factual information” to enable other parties to evaluate the merits of the claim, “including, if necessary, a privilege log.” [CCP § 2031.240(c)(1:) (emphasis added)] As the term is commonly used by courts and attorneys, a “privilege log” identifies 3 Separate Statement In Support of Motion To Compel each document for which a privilege or work product protection is claimed, its author, recipients, date of preparation, and the specific privilege or work product protection claimed. [Hernandez v. Sup. Ct. (Acheson Industries, Inc.) (2003) 112 Ca1.App.4th 285, 291—292, fn. 6; see CCP .l§ 2031.240(c)(2)—Legislative intent to codify concept of privilege log “as that term is used in I California case law”] “The information in the privilege log must be sufficiently specific to allow; a \OWNQM-AWNH determination of whether each withheld document isor is not (in) fact privileged.” [Wellpoint Healih Networks, Inc. v. Sup. Ct. (McCombs) (1997) 59 Ca1.App.4th I10, 130, (parentheses added).” Cal. Prac. Guide Civ. Pro. Before Trial Ch. 8H-6. As such, the computer used by Defendants to create the originals of all corporate records sent to Plaintiff‘s counsel by counsel for Defendant Clearview Industries, Inc. via email on May 14, 2015 should be produced. Respectfully submitted, LAW OFFICE OF MICHAEL P. RING & ASSOC. Dated: July A, 2015 NNNNNNNNN—‘D—dD—II—ID—tl—Ib—AD—Ir—Is—A WQQMAWNHOQWNQMAWNHO 4 Separate Statement In Support of Motion To Compel I PROOF OF SERVICE i STATE OF CALIFORNIA, COUNTY OF SANTA BARBARA l am employed I I in the County of Santa Barbara, State of California. I am over the age of 18 and not a party to the within action; my business address is 1234 Santa Barbara Street, Santa Barbara, California, 93101. I On July 6, 2015, I served the foregoing document described as SEPARATE \OWQOMAWNn—a : STATEMENT OF ITEMS IN DISPUTE RE MOTION TO COMPEL PRODUCTION OF COMPUTER; REQUEST FOR SANCTIONS on the interested parties in this action E _ E . by placing the original a true copy thereof addressed as follows: JEFFREY M. BENNION 2869 INDIA ST SAN DIEGO, CA 92103 jeff@]bennlonlaw.com VIA Em”. ONLY PER AGREEMENT OF THE PARTIES (BY FEDERAL EXPRESS OVERNIGHT DELIVERY) I caused such documents to be ~ Ere e up by Federal Express at 1234 Santa Barbara St., Santa Barbara, California, 93101, in an ox designated by Federal Express for overnight delivery, with delivery fees provided for. addressed to the person on whom it is to be served. ._.._.._.._.._.._. utHO (BY FAX) I caused the above-referenced document(s) to be sent via facsimile to the above- named persons at the following facsimile number: 16 & (BY ELECTRONIC jeff@]bennionlaw.com. SERVICE) The electronic address where I served this is 17“ FOR (BY PLACING COLLECTION AND MAILING) I placed the above-mentioned 18 document(s) in sealed envelope(s) addressed as set forth above. and placed the envelope(s) for collection and mailing following ordinary business practices. I am readily familiar with the finn’s 19 practice for collection and processing of correspondence for mailing with the United States Postal Service. Under that practice it would be deposited with the US. Postal Service on that same day 20 with postage thereon fully prepaid at 1234 Santa Barbara Street, Santa Barbara, CA 93101 in the ordinary course of business. 21 22 a above is (STATE) I declare under penalty of perjury under the laws of the State of California that the true and correct. 23 Executed on July 2015, at Santa Barbara, .mmm 6, California. 24 25 26 27 Type or Print Name Sw 28 I PROOF or SERVICE