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1 Jacob Harker (State Bar No. 261262)
LAW OFFICES OF JACOB HARKER
2
268 Bush St. #3732 ELECTRONICALLY
3 San Francisco, CA 94104 F I L E D
Tel: (415) 624-7602 Superior Court of California,
4 County of San Francisco
Fax: (415) 684-7757
5 Email: jacob@harkercounsel.com 01/04/2022
Clerk of the Court
BY: SANDRA SCHIRO
6 Deputy Clerk
Daniel L. Balsam (State Bar No. 260423)
7 THE LAW OFFICES OF DANIEL BALSAM
2601C Blanding Avenue #271
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Alameda, CA 94501
9 Tel: (415) 869-2873
Fax: (415) 869-2873
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Email: legal@danbalsam.com
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Attorneys for Plaintiff NACE REYNOLDS
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SUPERIOR COURT OF THE STATE OF CALIFORNIA
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15 COUNTY OF SAN FRANCISCO (UNLIMITED JURISDICTION)
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NACE REYNOLDS; ) Case No.: CGC-21-594238
17 ) Consolidated with
Plaintiff, ) CGC-21-594246
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v. )
19 ) PLAINTIFF’S REQUEST FOR JUDICIAL
ROBIN AMELIA SHEEHAN, et al; ) NOTICE IN SUPPORT OF MOTION FOR
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) SANCTIONS AGAINST DEFENDANTS
21 Defendants. ) AND THEIR ATTORNEY ED SASAKI
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) Date: February 28, 2022
23 And Related Action ) Time: 9:30 am
) Department: 302
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) Action Filed: August 2, 2021
25 ) Trial Date: Not Set
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I. LEGAL STANDARD
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1. Pursuant to Evidence Code § 452(d), records of any court of this state or the United
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States may be judicially noticed.
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PLAINTIFF’S RJN ISO MOTION FOR SANCTIONS
1 2. Pursuant to Evidence Code § 452(h), “Facts and propositions that are not reasonably
2 subject to dispute and are capable of immediate and accurate determination by resort to sources
3 of reasonably indisputably accuracy” may be judicially noticed.
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5 II. REQUEST FOR JUDICIAL NOTICE
6 3. Plaintiff Nace Reynolds respectfully requests that this Court take judicial notice of the
7 following documents:
8 4. Exhibit A is a true and correct copy of the identical Motion for Sanctions that Defendants
9 and their counsel Edwin Sasaki filed in Reynolds v. Sheehan (CGC-21-594238/594246) and
10 Mendez v. Sheehan (CGC-21-594247).
11 5. Exhibit B is a true and correct copy of the court’s order in Meiner v. Sheehan et al, No.
12 21-CIV-02362 (Super. Ct. Cal. Cty. of San Mateo Oct. 19, 2021) (Order Granting the Heit
13 Defendants’ Motion to Transfer Venue to Los Angeles County and Denying Request for
14 Attorneys’ Fees).
15 6. Exhibit C is a true and correct copy of the Motion to Quash Amended Subpoena that
16 Defendants filed in Reynolds v. Sheehan (CGC-21-594238/594246) (Motion only, without
17 Declarations).
18 7. Exhibit D is a true and correct copy of the Motion to Quash Service of Summons and
19 Complaint and to Dismiss Complaint that Defendants filed in Reynolds v. Sheehan (CGC-21-
20 594238/594246) (Motion only, without Declarations).
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22 THE LAW OFFICES OF DANIEL BALSAM
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24 Date: December 3, 2021 BY:
DANIEL BALSAM
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Attorneys for Plaintiff Nace Reynolds
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PLAINTIFF’S RJN ISO MOTION FOR SANCTIONS
Exhibit A
1 Jean Cha (SBN: 228137)
jean@chalawethics.com
2 Ed Sasaki (SBN: 158930) ELECTRONICALLY
ed@chalawethics.com
3 CHA LAW ETHICS F I L E D
Superior Court of California,
1100 W. Town & Country Rd., Suite 1250 County of San Francisco
4 Orange, California 92868
Telephone: (714) 242-8588 11/12/2021
Clerk of the Court
5 Fax: (657) 235-8588 BY: ERNALYN BURA
Deputy Clerk
6 Attorneys for Defendant ROBIN SHEEHAN
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8 SUPERIOR COURT OF THE STATE OF CALIFORNIA
9 COUNTY OF SAN FRANCISCO – UNLIMITED CIVIL
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11 NACE REYNOLDS, an individual; Case Nos. CGC-21-594238
CGC-21-594247
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Plaintiff,
13 MOTION FOR SANCTIONS
v. AGAINST PLAINTIFF AND HIS
14 COUNSEL JOINTLY AND SEVERALLY
ROBIN AMELIA SHEEHAN, an individual;
15 MATTHEW JACOB FEAVER, and A. $5,750 IN FEES UNDER CCP §§ 1987.2.
individual; SHEEHAN LAW GROUP PC, a 2025.410, 128.5, 2023.010, 2023.020, AND
16 (former) professional corporation; LOCAL RULES 1.1 and 8.2 (A)(1)
SHEEHAN & FEAVER PC, a California
17 professional corporation; B. $1,700 IN FEES UNDER CCP 128.5
BRIAN MORGAN HEIT, an individual; AND LOCAL RULES 1.1 and 8.2 (A)(1)
18 HEIT LAW GROUP PC, a professional
corporation; and DOES 1-10; C. $1,100 IN FEES UNDER CCP 128.5
19 (AGAINST DAN BALSAM ONLY)
Defendants.
20 D. $500 IN FEES UNDER CCP 128.5
(AGAINST DAN BALSAM ONLY)
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DECLARATION OF EDWIN N. SASAKI
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REQUEST FOR JUDICIAL NOTICE
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Hearing Date: December 30, 2021
24 Hearing Time; 9:30 a.m.
Dept: 302
25 Action Filed: August 2, 2021
Trial Date: None Set
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MOTION FOR SANCTIONS
1 TO THE COURT, ALL PARTIES AND THEIR COUNSEL OF RECORD:
2 PLEASE TAKE NOTICE THAT on December 30, 2021, at 9:30 a.m., or as soon
3 thereafter as counsel may be heard, in Dept. 302 of this Court, located at 400 McAllister Street, San
4 Francisco, California 94102, Defendant ROBIN SHEEHAN will bring a Motion for Sanctions in
5 these two related actions.
6 This Motion is brought under CCP §§ 1987.2, 2025.410 (d), 128.5, 2023.010 (a) – (c), (h),
7 and (i),and 2023.020, on the grounds that Plaintiff’s counsel filed an overbroad and defective
8 subpoena, failed to meet and confer in good faith, and failed to timely withdraw the Amended
9 subpoena, which forced Defendant’s counsel to draft, file, and serve a Motion to Quash by the filing
10 deadline of Wednesday, November 10, 2021. (CCP 2025.410; 1010.6 (a)(4)(B).) The Court is asked
11 to take judicial notice of the Motion to Quash filed on November 10, 2021, wherein Defendants
12 established that the Amended subpoena was substantively and procedurally defective for at least 21
13 different reasons.
14 This Motion is also brought under CCP 128.5 and Local Rules 1 and 8.2 (A)(1) on the ground
15 that Plaintiff’s counsel Dan Balsam and Jacob Harker have previously failed to meet and confer in
16 good faith regarding calendaring of a prior Demurrer/Strike and Motion to Quash Service of
17 Summons and Complaint, wherein they refused to agree to continue the hearing dates to
18 accommodate Mr. Sasaki’s Hawaii vacation.
19 This Motion is also brought under CCP 128.5 against attorney Dan Balsam only for directly
20 emailing Mr. Sasaki’s two clients and supervisor and making disparaging comments about his
21 professional work. Mr. Balsam also sent Mr. Sasaki an email on Veteran’s Day demanding that he
22 meet and confer during his Hawaii vacation regarding an Amended subpoena that Mr. Balsam had
23 already withdrawn less than an hour earlier.
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MOTION FOR SANCTIONS
1 This Motion is based on this Notice of Motion, the attached Memorandum of Points and
2 Authorities, the Declaration of Ed Sasaki, and on the pleadings and documents in the Court’s record,
3 and upon and such other documents, evidence, and testimony as the Court may permit at the hearing
4 on this motion.
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6 DATED: November 12, 2021 CHA LAW ETHICS
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8 By: ______________________________________
Jean Cha, Esq.
9 Ed Sasaki, Esq.
Attorneys for Defendant, ROBIN SHEEHAN
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MOTION FOR SANCTIONS
1 A. MOTION TO QUASH IS MOOT
2 Defendants’ Motion to Quash, set for hearing on December 30, 2021, is now moot. After
3 Defendants filed and served their Motion to Quash on November 10, 2021, Plaintiff’s counsel Dan
4 Balsam sent an email withdrawing the Amended subpoena. (Sasaki Decl. at ¶¶ 9-11, Exhibits G,
5 H, I.)
6 B. DEFENDANTS STILL SEEK MONETARY SANCTIONS
7 However, Defendants request that the Court still award them $5,750 in attorney’s fees under
8 CCP 1987.2 and/or CCP 2025.410 (d).
9 CCP 2025.410 (d) provides that:
10 “The court shall impose a monetary sanction under Chapter 7 (commencing with Section
11 2023.010) against any party, person, or attorney who unsuccessfully makes or opposes a motion to
12 quash a deposition notice, unless it finds that the one subject to the sanction acted with substantial
13 justification or that other circumstances make the imposition of the sanction unjust.”
14 Under CCP 2023.010, “misuses of the discovery process include, but are not limited to, the
15 following:”
16 “(a) Persisting, over objection and without substantial justification, in an attempt to obtain
information or materials that are outside the scope of permissible discovery.
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(b) Using a discovery method in a manner that does not comply with its specified procedures.
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19 (c) Employing a discovery method in a manner or to an extent that causes unwarranted
annoyance, embarrassment, or oppression, or undue burden and expense.
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* * *
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22 (h) Making or opposing, unsuccessfully and without substantial justification, a motion to
compel or to limit discovery.
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(i) Failing to confer in person, by telephone, or by letter with an opposing party or attorney in
24 a reasonable and good faith attempt to resolve informally any dispute concerning discovery,
if the section governing a particular discovery motion requires the filing of a declaration
25 stating facts showing that an attempt at informal resolution has been made.”
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MOTION FOR SANCTIONS
1 CCP 2023.020 states that:
2 “Notwithstanding the outcome of the particular discovery motion, the court
shall impose a monetary sanction ordering that any party or attorney who fails
3 to confer as required pay the reasonable expenses, including attorney’s fees,
incurred by anyone as a result of that conduct.”
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5 (See Parker v. Wolters Kluwer United States, Inc. (2007) 149 Cal.App.4th 285, 294 fn. 20,
6 citing CCP 2023.020 [“Furthermore, WKUS established without contradiction Parker refused to
7 meet and confer regarding further responses to the interrogatories. This is a separate offense entitling
8 the moving party to monetary sanctions ‘[n]otwithstanding the outcome of the particular discovery
9 motion.’ ”]; See also, Ellis v. Toshiba America Information Systems, Inc. (2013) 218 Cal.App.4th
10 853, 879-880.)
11 CCP 2025.410 (c) states that:
12 “In addition to serving this written objection, a party may also move for an order
staying the taking of the deposition and quashing the deposition notice. This motion
13 shall be accompanied by a meet and confer declaration under Section 2016.040.
The taking of the deposition is stayed pending the determination of this motion.”
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Here, Plaintiff and his counsel issued a defective subpoena, failed to timely withdraw it
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despite objections and a motion to quash, refused to respond to multiple meet and confer emails,
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and waited until after Defendants had drafted and filed their Motion to Quash before wit hdrawing
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the Amended subpoena, then still insisted that Defendant’s counsel had to meet and confer about
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the withdrawn subpoena during counsel’s Hawaii vacation.
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Filing a defective subpoena, refusing to withdraw it in the face of objections, and failing to
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meet and confer in good faith constitute violations of the following statutes. Plaintiff’s counsel knew
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or reasonably should have known that their subpoena was overbroad, oppressive, and substantively
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23 and procedurally defective. (CCP 2025.410; 2023.010 (a)-(c), (h), (i); 1987.2 (a).)
Failing to meet and confer in good faith constitutes a violation of the letter and spirit of the
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following statutes, particularly where Plaintiff’s counsel knew or reasonably should have known
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that their subpoena was overbroad, oppressive, and substantively and procedurally defective. (CCP
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2025.410; 2023.010 (h), (i); 1987.2 (a).)
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Here, Defendants’ were forced to incur significant costs to draft and file the motion to quash.
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MOTION FOR SANCTIONS
1 Plaintiff’s counsel were primarily at fault, because they filed a facially defective subpoena, then
2 failed to meet and confer in good faith to address the defects. The Court is asked to take judicial
3 notice of the 21 arguments in the Motion to Quash, filed on Nov. 10, 2021, proving that the
4 subpoena included numerous defects, not the least of which was that it was not issued 20 days before
5 the date of production on Saturday, November 20, 2021. The last date of production was a Saturday,
6 which is a Court Holiday (CCP 12a) and a day when the custodian of records could not mail out
7 responsive documents, as itwas not a work day for them. (Sasaki Decl. at ¶ 9.) Therefore, the
8 subpoena was defective under CCP 2020.410 (c), which requires that itprovide the custodian of
9 record at least 20 days after its issuance on Sunday October 31, 2021, to serve the business records.
10 CCP 1983.5 (g) requires the Motion to Quash to be noticed at least 5 days before the date of
11 production on Saturday, November 20, 2021, plus 2 court days for email service. (CCP 1010.6
12 (a)(4)(B). Because November 11, 2021 was a Court Holiday, the filing deadline was Wednesday,
13 November 10. CCP 1987.1 (a) requires the Motion to Quash to be filed within a reasonable time.
14 And pursuant to CCP 1983.5 (g), Plaintiff’s counsel could have argued, and the Court might have
15 found that Wednesday, November 10 was a reasonable deadline.
16 Pursuant to CCP 2020.030, CCP 1985 and 1987 et seq., apply to depositions subpoenas,
17 except as they are modified by the discovery statutes. CCP 2020.010 (b) provides that nonparty
18 discovery must be conducted by deposition subpoena. Therefore, CCP 2025.410 governs
19 depositions notices and deposition subpoenas for business records. (See generally, Unzipped
20 Apparel LLC v. Bader (2007) 156 Cal.App.4th 123.)
21 “The court may award sanctions under the Discovery Act in favor of a party who files a
22 motion to compel discovery, even though no opposition to the motion was filed, or opposition
23 to the motion was withdrawn, or the requested discovery was provided to the moving party
24 after the motion was filed.” (CRC 3.1348; Castro v. Superior Court (2004) 116 Cal.App.4th 1010,
25 1023 at fn. 13.)
26 C. SEPARATE MOTION FOR SANCTIONS UNDER CCP 128.5 AND LOCAL RULES
27 1.1 and 8.2 (A)(1)
28 If the Court declines to award sanctions under the Discovery Act, then pursuant to Local
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MOTION FOR SANCTIONS
1 Rule 1.1, Defendants’ counsel bring this separate motion for sanctions against Plaintiff’s counsel
2 Dan Balsam and Jacob Harker for failing to meet and confer in good faith, as required by Local
3 Rule 8.2 (A)(1) [“Parties should confer with all other parties before scheduling and noticing a
4 hearing.”]
5 Instead of meeting and conferring in good faith, Plaintiff’s counsel failed to respond, then
6 withdrew their defective subpoena ONLY AFTER Defendants filed and served their Motion. Thus,
7 Plaintiff’s counsel forced Defendants to incur fees to draft the motion, then withdrew the subpoena
8 at the eleventh hour to evade sanctions. (See generally Sasaki Decl.) Defendants seek $5,750 in
9 monetary sanctions, the cost of having to draft and serve objections and the Motion to Quash.
10 D. PATTERN AND PRACTICE OF MISCONDUCT
11 Previously, Plaintiffs’ counsel failed to meet and confer in good faith to calendar dates for
12 Defendants’ Demurrer/Motion to Strike and Motion to Quash the Summons and Complaint.
13 Plaintiffs’ counsel refused to continue the Nov. 17 and Nov. 24 hearing dates to accommodate
14 counsel’s week-long Hawaii vacation. (Sasaki Decl. at ¶ 18, Exhibit L and Exhibit M.) Those
15 dates were calendared as required by statute, within 30 days and 35 days after filing. (CCP 418.10;
16 CRC 3.1320.)
17 1. INSISTING THAT SASAKI WORK DURING HIS HAWAII VACATION
18 Plaintiffs’ counsel repeatedly refused to provide December dates to accommodate Mr.
19 Sasaki’s Hawaii vacation. Mr. Sasaki was forced to bring two Ex Parte Applications at great cost to
20 his clients. Plaintiff’s counsel then filed Oppositions, insisting that during his Hawaii vacation, Mr.
21 Sasaki be required to appear at the hearings, review Oppositions, and file Reply briefs. The Court,
22 the Honorable Ethan Schulman, granted both Ex Partes and continued the hearing dates to December
23 17, a date which Mr. Sasaki had previously proposed to Plaintiff’s counsel during the meet and
24 confer process. At the hearing, the Court strongly admonished Mr. Harker for failing to
25 accommodate Mr. Sasaki’s Hawaii vacation. (Sasaki Decl. at ¶ 18.)
26 Copies of one of Defendant’s Ex Parte Applications and one of Plaintiff’s Oppositions are
27 attached as Exhibit L and Exhibit M to the Sasaki Declaration. By this separate Motion for
28 Sanctions, Defendants seek an additional $1,700 for the cost of drafting the Ex Parte Applications,
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MOTION FOR SANCTIONS
1 reviewing the Oppositions, and appearing at the hearing. (Sasaki Decl. at ¶ 18.)
2 2. DISPARAGING SASAKI’S WORK TO HIS CLIENTS AND BOSS
3 On October 29, 2021, Mr. Sasaki inadvertently sent an email to Plaintiff’s counsel Dan
4 Balsam. The email had been intended for Dan H., Mr. Sasaki’s client in another case. Instead of
5 deleting the email and notifying Mr. Sasaki privately, Mr. Balsam intentionally sent an email
6 publicly disparaging Mr. Sasaki’s work to his two clients and his boss Jean Cha. This was intended
7 to harm Mr. Sasaki’s reputation. While this constituted the tort of intentional interference with
8 contract, it would be difficult and expensive for Mr. Sasaki prove up damages in a lawsuit. Still,
9 there is little doubt that Balsam’s unpermitted communication with Sasaki’s clients was intentional
10 and was meant to harm his reputation. While the damage is difficult to quantify, genuine damage
11 was done. A copy of my inadvertent email and the reply Mr. Balsam sent to my clients is attached.
12 (Sasaki Decl. at ¶ 15, Exhibit K.)
13 By this Motion, Defendants ask the Court to admonish Mr. Balsam and impose $1,100 in
14 sanctions on him, for harm done to Mr. Sasaki’s reputation and for the additional cost of bringing
15 this Motion for Sanctions. (In re Marriage of Sahafzadeh (2019) 39 Cal.App. 5th 124, 141-142,
16 citing CCP 128.5.) Of that amount $500 shall be paid to Mr. Sasaki and $600 to Defendants.
17 3. EMAILING SASAKI ON VETERAN’S DAY, TWO DAYS BEFORE HIS HAWAII
18 TRIP, TO INSIST THAT HE MEET AND CONFER ABOUT A WITHDRAWN
19 SUBPOENA, WHILE ON VACATION IN HAWAII
20 On Veteran’s Day, Thursday November 11, 2021 at 4:55 p.m., Mr. Balsam sent formal
21 notice withdrawing his subpoena. But this was sent on a Court Holiday (CCP 12a), so it is not
22 effective until Friday, November 12, 2021. (Sasaki Decl. at ¶ 10, Exhibit H.)
23 Less than an hour later at 5: 45 p.m., Mr. Balsam sent Mr. Sasaki a letter addressing his
24 Objections to the Amended subpoena that he had just withdrawn. The letter did not address all of
25 Mr. Sasaki’s Objections and it did not address any of the arguments raised in the Motion to Quash.
26 Balsam demanded that Mr. Sasaki meet and confer with him on Monday, November 15, or Tuesday,
27 November 16, while on vacation in Hawaii, even though Mr. Sasaki had previously sent him a notice
28 of unavailability on October 25. (Sasaki Decl. at ¶ 11, Exhibits I.)
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MOTION FOR SANCTIONS
1 Mr. Sasaki had previously told Mr. Balsam and Jacob Harker that he was the handling
2 attorney, and that neither Mr. Sasaki nor Jean Cha were available before Thanksgiving. Mr. Sasaki
3 told Mr. Balsam that it made no sense to discuss an Amended subpoena that had already been
4 withdrawn. To the best of Mr. Sasaki’s knowledge, Mr. Balsam has yet to issue or serve a Second
5 Amended subpoena. (Ibid.)
6 4. REPEATING ARGUMENTS ALREADY OVERRULED BY THE COURT
7 Mr. Balsam knew that on October 28, 2021, the Court had already granted Mr. Sasaki’s two
8 Ex Parte Applications to continue hearing dates from November 17 and November 24 to December
9 17, to accommodate his Hawaii vacation. Mr. Balsam and Mr. Harker had previously opposed those
10 Ex Parte Applications, insisting that Mr. Sasaki be required to work while in Hawaii. At the
11 hearing, the Court strongly admonished Mr. Harker for failing to accommodate Mr. Sasaki’s
12 Hawaii vacation. (Sasaki Decl. at ¶ 18, Exhibits L and M.)
13 Furthermore, Balsam and Harker repeat their argument, previously raised in their Ex
14 Parte papers and at the Ex Parte hearing, that Jean Cha should be required to handle this
15 matter. But she is not the handling attorney and she is also unavailable during the period before
16 Thanksgiving. Our clients should not be required to waste money getting Mr. Cha up to speed and
17 re-duplicating my efforts on this matter. The Court has already rejected this argument, which
18 Balsam and Harker now revisit in bad faith. (See Exhibit M at p. 5, lines 6-7, highlighted text.)
19 Emailing me on Veteran’s Day Holiday, to insist that I meet and confer with him during my Hawaii
20 vacation, was an act of intentional bad faith by Mr. Balsam. Because I am scheduled to leave for
21 Hawaii on Saturday, November 13, 2021, I was forced to work all evening on Veteran’s Day to
22 respond to Mr. Balsam’s stratagems. Copies of the Notice of Unavailability that I served on
23 10/25/21, Mr. Balsam’s belated meet and confer letter, and related emails are attached as Exhibit I.
24 (Sasaki Decl. at ¶ 11.)
25 In his follow up email, sent at 9:54 p.m. on November 11, Mr. Balsam insisted that I could
26 take his phone call in Hawaii if I really wanted to. He demanded that I meet and confer with
27 him regarding the withdrawn Amended subpoena, “[b]ecause the Second Amended Subpoena
28 is likely to be pretty similar.” Mr. Balsam admitted that he has not yet drafted the Second Amended
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MOTION FOR SANCTIONS
1 subpoena. Nevertheless, Mr. Balsam announced that I am stillobligated to justify all of my
2 objections to the already-withdrawn Amended subpoena. (Sasaki Decl. at ¶ 11, Exhibit I.)
3 Defendant will therefore seek an additional $500 in sanctions against Mr. Balsam, under CCP 128.5,
4 for this additional instance of bad faith conduct.
5 “[S]ection 128.5 sanctions can be imposed against a lawyer for unjustifiable dereliction
6 in his or her obligations – i.e., conduct that is ‘frivolous’ – committed with an improper motive,
7 such as to harass or manipulate opposing counsel or the court – i.e., committed in subjective
8 ‘bad faith’ – and which results in an opponent incurring additional costs. In short, a lawyer
9 whose dereliction in duty is ‘blatant’ and who has ‘personally misused the judicial system’ can be
10 required to pay associated costs needlessly incurred by an opposing party.” (In re Marriage of
11 Sahafzadeh (2019) 39 Cal.App. 5th 124, 141, citing CCP 128.5.)
12 Mr. Balsam and Mr. Harker have repeatedly tried to schedule conflicting events despite
13 repeated notice from me and my firm of our unavailability. Intentionally scheduling a conflicting
14 proceeding in bad faith or without good cause, with full knowledge of the unavailability of
15 opposing counsel, is sanctionable conduct. (Tenderloin Housing Clinic v. Sparks (1992) 8 Cal.
16 App.4th 299, 307.)
17 As a general rule, “[a]n attorney’s testimony as to the number of hours worked is sufficient
18 evidence to support an award of attorney fees, even in the absence of detailed time records.”
19 (Steiny & Co. v. California Electric Supply Co. (2000) 79 Cal.App.4th 285, 293; Martino v. Denevi
20 (1986) 182 Cal.App.3d 553, 559.)
21 E. CONCLUSION: “YOU CANNOT SHAKE HANDS WITH A CLENCHED FIST.”
22 Defendant brings this Motion for Sanctions reluctantly. But Plaintiff’s counsel have engaged
23 in a pattern and practice of unprofessional conduct that is intended to burden Defendant with
24 emotional stress and skyrocketing legal fees. Our firm has been forced to alert the Court and seek
25 sanctions. But in trying to bury our client with legal fees, Plaintiff’s counsel are also wasting the
26 Court’s resources, requiring the Court to adjudicate frivolous disputes, artificially manufactured by
27 Plaintiff’s counsel. These disputes, had they been genuine, could have been resolved with minimal
28 cost and effort, if only Plaintiff’s counsel were acting in good faith.
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MOTION FOR SANCTIONS
1 Defendant’s counsel Ed Sasaki has been practicing law since 1992. Never before has he
2 encountered such an extreme degree of bad faith conduct from opposing counsel. Never before, has
3 Mr. Sasaki been forced to file a motion for sanctions under CCP 128.5. The Court should know that
4 the incidents recounted here are just the tip of the iceberg. Plaintiff’s counsel have launched an
5 endless barrage of indignities to harass, intimidate, and burden Defendants and their counsel.
6 Without the Court’s intervention, Plaintiff’s counsel may profit unfairly from their intentional, bad
7 faith misconduct.
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9 DATED: November 12, 2021 CHA LAW ETHICS
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11 By: ______________________________________
12 Jean Cha, Esq.
Ed Sasaki, Esq.
13 Attorneys for Defendant ROBIN SHEEHAN
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MOTION FOR SANCTIONS
1 DECLARATION OF EDWIN N. SASAKI
2 I, EDWIN N. SASAKI, declare as follows:
3 1. I am an attorney licensed to practice law in the State of California, and I am a Senior
4 Associate with Cha Law Ethics, counsel of record in this action for Defendant ROBIN SHEEHAN
5 and specially-appearing Defendants BRIAN MORGAN HEIT and HEIT LAW GROUP PC. I have
6 personal knowledge of the facts set forth herein, except as to those matters expressly stated on
7 information and belief. All of the Exhibits attached to this declaration are true and correct copies of
8 the documents described herein.
9 2. On Sunday, October 31, 2021, I received an email from Plaintiff’s counsel Dan
10 Balsam notifying me that he had issued a business records subpoena seeking documents from third
11 party witness Virtual Post Solutions, Inc., which documents are confidential, may be privileged, and
12 relate to Defendants Brian Heit and Heit Law Group PC. A copy of the 10/31/21 email is attached
13 as Exhibit A.
14 3. The Amended subpoena was issued on Sunday, October 31, 2021, and demanded
15 production of records on Saturday, November 20, 2021. A copy of the Amended subpoena is
16 attached as Exhibit B.
17 4. Local Rule 8.2 (A)(2)(a) provides, in relevant part, that: “Parties should confer with
18 all other parties before scheduling and noticing a hearing”
19 5. On Thursday, November 4, 2021, I sent an email to Plaintiff’s counsel Dan Balsam
20 and Jacob Harker, asking them to please contact me to set a time to meet and confer regarding a
21 possible Motion to Quash the Subpoena. Dan Balsam replied that same day. Instead of agreeing to
22 speak by telephone, he asked me to please state the issues and objections I wished to discuss with
23 them. A copy of our 11/4/21 email exchange is attached as Exhibit C.
24 6. On Sunday, November 7, 2021, I responded to Mr. Balsam, setting forth in detail
25 Defendants’ proposed objections and grounds for a Motion to Quash. I also asked them to provide
26 me with dates when they may be available to attend a hearing on the Motion to Quash. Mr. Balsam
27 failed to respond. A copy of my 11/7/21 email is attached as Exhibit D.
28 7. The deadline to file the Motion for Protective Order and Motion to Quash (hereinafter
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DECLARATION OF EDWIN N. SASAKI
1 collectively “Motion to Quash”) was Wednesday, November 10, 2021. (CCP 2025.410; 1987.1.)
2 Late Tuesday evening, on November 9, 2021, I finished drafting the Motion for Protective Order
3 and Motion to Quash. As of Wednesday morning, November 10, 2021, I had not heard back from
4 Plaintiff’s counsel. Therefore, at about 10:30 a.m. our firm filed and served the Motion to Quash.
5 Copies of the relevant emails are attached as Exhibits E.
6 8. On Tuesday, November 9, 2021, Defendants served detailed Objections to the
7 Amended Subpoena. Copies of the Objections and service email are attached as Exhibit F.
8 9. On Wednesday, November 10, 2021, at about 11:41 a.m., Mr. Balsam sent me an
9 email informally withdrawing the Amended subpoena. But this email was sent only after we had
10 already been forced to draft, file, and serve our Motion by the statutory deadline, with two additional
11 days for email service. (CCP 1010.6 (a)(4)(B); 2025.410.) We were forced to draft our motion
12 because Plaintiff’s counsel refused to meet and confer by telephone on November 4, then failed to
13 timely respond to our email on November 7. A copy of Mr. Balsam’s 11/10/21 email withdrawing
14 the Amended subpoena is attached as Exhibit G.
15 CCP 1983.5 (g) requires the Motion to Quash to be noticed at least 5 days before the date of
16 production on Saturday, November 20, 2021, plus 2 court days for email service. (CCP 1010.6
17 (a)(4)(B). Because November 11, 2021 was a Court Holiday, the filing deadline was Wednesday,
18 November 10. CCP 1987.1 (a) requires the Motion to Quash to be filed within a reasonable time.
19 And pursuant to CCP 1983.5 (g), Plaintiff’s counsel could have argued, and the Court might have
20 found that Wednesday, November 10 was a reasonable deadline.
21 10. On Veteran’s Day, Thursday, November 11, 2021, at 4:55 p.m., Mr. Balsam sent
22 formal notice withdrawing his subpoena. But this was sent on a Court Holiday (CCP 12a), so it
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1 Jacob Harker (State Bar No. 261262) LAW OFFICES OF JACOB HARKER 2 268 Bush St. #3732 ELECTRONICALLY 3 San Francisco, CA 94104 F I L E D Tel: (415) 624-7602 Superior Court of California, 4 County of San Francisco Fax: (415) 684-7757 5 Email: jacob@harkercounsel.com 01/04/2022 Clerk of the Court BY: SANDRA SCHIRO 6 Deputy Clerk Daniel L. Balsam (State Bar No. 260423) 7 THE LAW OFFICES OF DANIEL BALSAM 2601C Blanding Avenue #271 8 Alameda, CA 94501 9 Tel: (415) 869-2873 Fax: (415) 869-2873 10 Email: legal@danbalsam.com 11 Attorneys for Plaintiff NACE REYNOLDS 12 13 SUPERIOR COURT OF THE STATE OF CALIFORNIA 14 15 COUNTY OF SAN FRANCISCO (UNLIMITED JURISDICTION) 16 NACE REYNOLDS; ) Case No.: CGC-21-594238 17 ) Consolidated with Plaintiff, ) CGC-21-594246 18 v. ) 19 ) PLAINTIFF’S REQUEST FOR JUDICIAL ROBIN AMELIA SHEEHAN, et al; ) NOTICE IN SUPPORT OF MOTION FOR 20 ) SANCTIONS AGAINST DEFENDANTS 21 Defendants. ) AND THEIR ATTORNEY ED SASAKI ) 22 ) Date: February 28, 2022 23 And Related Action ) Time: 9:30 am ) Department: 302 24 ) Action Filed: August 2, 2021 25 ) Trial Date: Not Set 26 I. LEGAL STANDARD 27 1. Pursuant to Evidence Code § 452(d), records of any court of this state or the United 28 States may be judicially noticed. 29 30 31 1 PLAINTIFF’S RJN ISO MOTION FOR SANCTIONS 1 2. Pursuant to Evidence Code § 452(h), “Facts and propositions that are not reasonably 2 subject to dispute and are capable of immediate and accurate determination by resort to sources 3 of reasonably indisputably accuracy” may be judicially noticed. 4 5 II. REQUEST FOR JUDICIAL NOTICE 6 3. Plaintiff Nace Reynolds respectfully requests that this Court take judicial notice of the 7 following documents: 8 4. Exhibit A is a true and correct copy of the identical Motion for Sanctions that Defendants 9 and their counsel Edwin Sasaki filed in Reynolds v. Sheehan (CGC-21-594238/594246) and 10 Mendez v. Sheehan (CGC-21-594247). 11 5. Exhibit B is a true and correct copy of the court’s order in Meiner v. Sheehan et al, No. 12 21-CIV-02362 (Super. Ct. Cal. Cty. of San Mateo Oct. 19, 2021) (Order Granting the Heit 13 Defendants’ Motion to Transfer Venue to Los Angeles County and Denying Request for 14 Attorneys’ Fees). 15 6. Exhibit C is a true and correct copy of the Motion to Quash Amended Subpoena that 16 Defendants filed in Reynolds v. Sheehan (CGC-21-594238/594246) (Motion only, without 17 Declarations). 18 7. Exhibit D is a true and correct copy of the Motion to Quash Service of Summons and 19 Complaint and to Dismiss Complaint that Defendants filed in Reynolds v. Sheehan (CGC-21- 20 594238/594246) (Motion only, without Declarations). 21 22 THE LAW OFFICES OF DANIEL BALSAM 23 24 Date: December 3, 2021 BY: DANIEL BALSAM 25 Attorneys for Plaintiff Nace Reynolds 26 27 28 29 30 31 2 PLAINTIFF’S RJN ISO MOTION FOR SANCTIONS Exhibit A 1 Jean Cha (SBN: 228137) jean@chalawethics.com 2 Ed Sasaki (SBN: 158930) ELECTRONICALLY ed@chalawethics.com 3 CHA LAW ETHICS F I L E D Superior Court of California, 1100 W. Town & Country Rd., Suite 1250 County of San Francisco 4 Orange, California 92868 Telephone: (714) 242-8588 11/12/2021 Clerk of the Court 5 Fax: (657) 235-8588 BY: ERNALYN BURA Deputy Clerk 6 Attorneys for Defendant ROBIN SHEEHAN 7 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 COUNTY OF SAN FRANCISCO – UNLIMITED CIVIL 10 11 NACE REYNOLDS, an individual; Case Nos. CGC-21-594238 CGC-21-594247 12 Plaintiff, 13 MOTION FOR SANCTIONS v. AGAINST PLAINTIFF AND HIS 14 COUNSEL JOINTLY AND SEVERALLY ROBIN AMELIA SHEEHAN, an individual; 15 MATTHEW JACOB FEAVER, and A. $5,750 IN FEES UNDER CCP §§ 1987.2. individual; SHEEHAN LAW GROUP PC, a 2025.410, 128.5, 2023.010, 2023.020, AND 16 (former) professional corporation; LOCAL RULES 1.1 and 8.2 (A)(1) SHEEHAN & FEAVER PC, a California 17 professional corporation; B. $1,700 IN FEES UNDER CCP 128.5 BRIAN MORGAN HEIT, an individual; AND LOCAL RULES 1.1 and 8.2 (A)(1) 18 HEIT LAW GROUP PC, a professional corporation; and DOES 1-10; C. $1,100 IN FEES UNDER CCP 128.5 19 (AGAINST DAN BALSAM ONLY) Defendants. 20 D. $500 IN FEES UNDER CCP 128.5 (AGAINST DAN BALSAM ONLY) 21 DECLARATION OF EDWIN N. SASAKI 22 REQUEST FOR JUDICIAL NOTICE 23 Hearing Date: December 30, 2021 24 Hearing Time; 9:30 a.m. Dept: 302 25 Action Filed: August 2, 2021 Trial Date: None Set 26 27 28 1 MOTION FOR SANCTIONS 1 TO THE COURT, ALL PARTIES AND THEIR COUNSEL OF RECORD: 2 PLEASE TAKE NOTICE THAT on December 30, 2021, at 9:30 a.m., or as soon 3 thereafter as counsel may be heard, in Dept. 302 of this Court, located at 400 McAllister Street, San 4 Francisco, California 94102, Defendant ROBIN SHEEHAN will bring a Motion for Sanctions in 5 these two related actions. 6 This Motion is brought under CCP §§ 1987.2, 2025.410 (d), 128.5, 2023.010 (a) – (c), (h), 7 and (i),and 2023.020, on the grounds that Plaintiff’s counsel filed an overbroad and defective 8 subpoena, failed to meet and confer in good faith, and failed to timely withdraw the Amended 9 subpoena, which forced Defendant’s counsel to draft, file, and serve a Motion to Quash by the filing 10 deadline of Wednesday, November 10, 2021. (CCP 2025.410; 1010.6 (a)(4)(B).) The Court is asked 11 to take judicial notice of the Motion to Quash filed on November 10, 2021, wherein Defendants 12 established that the Amended subpoena was substantively and procedurally defective for at least 21 13 different reasons. 14 This Motion is also brought under CCP 128.5 and Local Rules 1 and 8.2 (A)(1) on the ground 15 that Plaintiff’s counsel Dan Balsam and Jacob Harker have previously failed to meet and confer in 16 good faith regarding calendaring of a prior Demurrer/Strike and Motion to Quash Service of 17 Summons and Complaint, wherein they refused to agree to continue the hearing dates to 18 accommodate Mr. Sasaki’s Hawaii vacation. 19 This Motion is also brought under CCP 128.5 against attorney Dan Balsam only for directly 20 emailing Mr. Sasaki’s two clients and supervisor and making disparaging comments about his 21 professional work. Mr. Balsam also sent Mr. Sasaki an email on Veteran’s Day demanding that he 22 meet and confer during his Hawaii vacation regarding an Amended subpoena that Mr. Balsam had 23 already withdrawn less than an hour earlier. 24 /// 25 /// 26 /// 27 /// 28 /// 2 MOTION FOR SANCTIONS 1 This Motion is based on this Notice of Motion, the attached Memorandum of Points and 2 Authorities, the Declaration of Ed Sasaki, and on the pleadings and documents in the Court’s record, 3 and upon and such other documents, evidence, and testimony as the Court may permit at the hearing 4 on this motion. 5 6 DATED: November 12, 2021 CHA LAW ETHICS 7 8 By: ______________________________________ Jean Cha, Esq. 9 Ed Sasaki, Esq. Attorneys for Defendant, ROBIN SHEEHAN 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 MOTION FOR SANCTIONS 1 A. MOTION TO QUASH IS MOOT 2 Defendants’ Motion to Quash, set for hearing on December 30, 2021, is now moot. After 3 Defendants filed and served their Motion to Quash on November 10, 2021, Plaintiff’s counsel Dan 4 Balsam sent an email withdrawing the Amended subpoena. (Sasaki Decl. at ¶¶ 9-11, Exhibits G, 5 H, I.) 6 B. DEFENDANTS STILL SEEK MONETARY SANCTIONS 7 However, Defendants request that the Court still award them $5,750 in attorney’s fees under 8 CCP 1987.2 and/or CCP 2025.410 (d). 9 CCP 2025.410 (d) provides that: 10 “The court shall impose a monetary sanction under Chapter 7 (commencing with Section 11 2023.010) against any party, person, or attorney who unsuccessfully makes or opposes a motion to 12 quash a deposition notice, unless it finds that the one subject to the sanction acted with substantial 13 justification or that other circumstances make the imposition of the sanction unjust.” 14 Under CCP 2023.010, “misuses of the discovery process include, but are not limited to, the 15 following:” 16 “(a) Persisting, over objection and without substantial justification, in an attempt to obtain information or materials that are outside the scope of permissible discovery. 17 (b) Using a discovery method in a manner that does not comply with its specified procedures. 18 19 (c) Employing a discovery method in a manner or to an extent that causes unwarranted annoyance, embarrassment, or oppression, or undue burden and expense. 20 * * * 21 22 (h) Making or opposing, unsuccessfully and without substantial justification, a motion to compel or to limit discovery. 23 (i) Failing to confer in person, by telephone, or by letter with an opposing party or attorney in 24 a reasonable and good faith attempt to resolve informally any dispute concerning discovery, if the section governing a particular discovery motion requires the filing of a declaration 25 stating facts showing that an attempt at informal resolution has been made.” 26 27 28 4 MOTION FOR SANCTIONS 1 CCP 2023.020 states that: 2 “Notwithstanding the outcome of the particular discovery motion, the court shall impose a monetary sanction ordering that any party or attorney who fails 3 to confer as required pay the reasonable expenses, including attorney’s fees, incurred by anyone as a result of that conduct.” 4 5 (See Parker v. Wolters Kluwer United States, Inc. (2007) 149 Cal.App.4th 285, 294 fn. 20, 6 citing CCP 2023.020 [“Furthermore, WKUS established without contradiction Parker refused to 7 meet and confer regarding further responses to the interrogatories. This is a separate offense entitling 8 the moving party to monetary sanctions ‘[n]otwithstanding the outcome of the particular discovery 9 motion.’ ”]; See also, Ellis v. Toshiba America Information Systems, Inc. (2013) 218 Cal.App.4th 10 853, 879-880.) 11 CCP 2025.410 (c) states that: 12 “In addition to serving this written objection, a party may also move for an order staying the taking of the deposition and quashing the deposition notice. This motion 13 shall be accompanied by a meet and confer declaration under Section 2016.040. The taking of the deposition is stayed pending the determination of this motion.” 14 Here, Plaintiff and his counsel issued a defective subpoena, failed to timely withdraw it 15 despite objections and a motion to quash, refused to respond to multiple meet and confer emails, 16 and waited until after Defendants had drafted and filed their Motion to Quash before wit hdrawing 17 the Amended subpoena, then still insisted that Defendant’s counsel had to meet and confer about 18 the withdrawn subpoena during counsel’s Hawaii vacation. 19 Filing a defective subpoena, refusing to withdraw it in the face of objections, and failing to 20 meet and confer in good faith constitute violations of the following statutes. Plaintiff’s counsel knew 21 or reasonably should have known that their subpoena was overbroad, oppressive, and substantively 22 23 and procedurally defective. (CCP 2025.410; 2023.010 (a)-(c), (h), (i); 1987.2 (a).) Failing to meet and confer in good faith constitutes a violation of the letter and spirit of the 24 following statutes, particularly where Plaintiff’s counsel knew or reasonably should have known 25 that their subpoena was overbroad, oppressive, and substantively and procedurally defective. (CCP 26 2025.410; 2023.010 (h), (i); 1987.2 (a).) 27 Here, Defendants’ were forced to incur significant costs to draft and file the motion to quash. 28 5 MOTION FOR SANCTIONS 1 Plaintiff’s counsel were primarily at fault, because they filed a facially defective subpoena, then 2 failed to meet and confer in good faith to address the defects. The Court is asked to take judicial 3 notice of the 21 arguments in the Motion to Quash, filed on Nov. 10, 2021, proving that the 4 subpoena included numerous defects, not the least of which was that it was not issued 20 days before 5 the date of production on Saturday, November 20, 2021. The last date of production was a Saturday, 6 which is a Court Holiday (CCP 12a) and a day when the custodian of records could not mail out 7 responsive documents, as itwas not a work day for them. (Sasaki Decl. at ¶ 9.) Therefore, the 8 subpoena was defective under CCP 2020.410 (c), which requires that itprovide the custodian of 9 record at least 20 days after its issuance on Sunday October 31, 2021, to serve the business records. 10 CCP 1983.5 (g) requires the Motion to Quash to be noticed at least 5 days before the date of 11 production on Saturday, November 20, 2021, plus 2 court days for email service. (CCP 1010.6 12 (a)(4)(B). Because November 11, 2021 was a Court Holiday, the filing deadline was Wednesday, 13 November 10. CCP 1987.1 (a) requires the Motion to Quash to be filed within a reasonable time. 14 And pursuant to CCP 1983.5 (g), Plaintiff’s counsel could have argued, and the Court might have 15 found that Wednesday, November 10 was a reasonable deadline. 16 Pursuant to CCP 2020.030, CCP 1985 and 1987 et seq., apply to depositions subpoenas, 17 except as they are modified by the discovery statutes. CCP 2020.010 (b) provides that nonparty 18 discovery must be conducted by deposition subpoena. Therefore, CCP 2025.410 governs 19 depositions notices and deposition subpoenas for business records. (See generally, Unzipped 20 Apparel LLC v. Bader (2007) 156 Cal.App.4th 123.) 21 “The court may award sanctions under the Discovery Act in favor of a party who files a 22 motion to compel discovery, even though no opposition to the motion was filed, or opposition 23 to the motion was withdrawn, or the requested discovery was provided to the moving party 24 after the motion was filed.” (CRC 3.1348; Castro v. Superior Court (2004) 116 Cal.App.4th 1010, 25 1023 at fn. 13.) 26 C. SEPARATE MOTION FOR SANCTIONS UNDER CCP 128.5 AND LOCAL RULES 27 1.1 and 8.2 (A)(1) 28 If the Court declines to award sanctions under the Discovery Act, then pursuant to Local 6 MOTION FOR SANCTIONS 1 Rule 1.1, Defendants’ counsel bring this separate motion for sanctions against Plaintiff’s counsel 2 Dan Balsam and Jacob Harker for failing to meet and confer in good faith, as required by Local 3 Rule 8.2 (A)(1) [“Parties should confer with all other parties before scheduling and noticing a 4 hearing.”] 5 Instead of meeting and conferring in good faith, Plaintiff’s counsel failed to respond, then 6 withdrew their defective subpoena ONLY AFTER Defendants filed and served their Motion. Thus, 7 Plaintiff’s counsel forced Defendants to incur fees to draft the motion, then withdrew the subpoena 8 at the eleventh hour to evade sanctions. (See generally Sasaki Decl.) Defendants seek $5,750 in 9 monetary sanctions, the cost of having to draft and serve objections and the Motion to Quash. 10 D. PATTERN AND PRACTICE OF MISCONDUCT 11 Previously, Plaintiffs’ counsel failed to meet and confer in good faith to calendar dates for 12 Defendants’ Demurrer/Motion to Strike and Motion to Quash the Summons and Complaint. 13 Plaintiffs’ counsel refused to continue the Nov. 17 and Nov. 24 hearing dates to accommodate 14 counsel’s week-long Hawaii vacation. (Sasaki Decl. at ¶ 18, Exhibit L and Exhibit M.) Those 15 dates were calendared as required by statute, within 30 days and 35 days after filing. (CCP 418.10; 16 CRC 3.1320.) 17 1. INSISTING THAT SASAKI WORK DURING HIS HAWAII VACATION 18 Plaintiffs’ counsel repeatedly refused to provide December dates to accommodate Mr. 19 Sasaki’s Hawaii vacation. Mr. Sasaki was forced to bring two Ex Parte Applications at great cost to 20 his clients. Plaintiff’s counsel then filed Oppositions, insisting that during his Hawaii vacation, Mr. 21 Sasaki be required to appear at the hearings, review Oppositions, and file Reply briefs. The Court, 22 the Honorable Ethan Schulman, granted both Ex Partes and continued the hearing dates to December 23 17, a date which Mr. Sasaki had previously proposed to Plaintiff’s counsel during the meet and 24 confer process. At the hearing, the Court strongly admonished Mr. Harker for failing to 25 accommodate Mr. Sasaki’s Hawaii vacation. (Sasaki Decl. at ¶ 18.) 26 Copies of one of Defendant’s Ex Parte Applications and one of Plaintiff’s Oppositions are 27 attached as Exhibit L and Exhibit M to the Sasaki Declaration. By this separate Motion for 28 Sanctions, Defendants seek an additional $1,700 for the cost of drafting the Ex Parte Applications, 7 MOTION FOR SANCTIONS 1 reviewing the Oppositions, and appearing at the hearing. (Sasaki Decl. at ¶ 18.) 2 2. DISPARAGING SASAKI’S WORK TO HIS CLIENTS AND BOSS 3 On October 29, 2021, Mr. Sasaki inadvertently sent an email to Plaintiff’s counsel Dan 4 Balsam. The email had been intended for Dan H., Mr. Sasaki’s client in another case. Instead of 5 deleting the email and notifying Mr. Sasaki privately, Mr. Balsam intentionally sent an email 6 publicly disparaging Mr. Sasaki’s work to his two clients and his boss Jean Cha. This was intended 7 to harm Mr. Sasaki’s reputation. While this constituted the tort of intentional interference with 8 contract, it would be difficult and expensive for Mr. Sasaki prove up damages in a lawsuit. Still, 9 there is little doubt that Balsam’s unpermitted communication with Sasaki’s clients was intentional 10 and was meant to harm his reputation. While the damage is difficult to quantify, genuine damage 11 was done. A copy of my inadvertent email and the reply Mr. Balsam sent to my clients is attached. 12 (Sasaki Decl. at ¶ 15, Exhibit K.) 13 By this Motion, Defendants ask the Court to admonish Mr. Balsam and impose $1,100 in 14 sanctions on him, for harm done to Mr. Sasaki’s reputation and for the additional cost of bringing 15 this Motion for Sanctions. (In re Marriage of Sahafzadeh (2019) 39 Cal.App. 5th 124, 141-142, 16 citing CCP 128.5.) Of that amount $500 shall be paid to Mr. Sasaki and $600 to Defendants. 17 3. EMAILING SASAKI ON VETERAN’S DAY, TWO DAYS BEFORE HIS HAWAII 18 TRIP, TO INSIST THAT HE MEET AND CONFER ABOUT A WITHDRAWN 19 SUBPOENA, WHILE ON VACATION IN HAWAII 20 On Veteran’s Day, Thursday November 11, 2021 at 4:55 p.m., Mr. Balsam sent formal 21 notice withdrawing his subpoena. But this was sent on a Court Holiday (CCP 12a), so it is not 22 effective until Friday, November 12, 2021. (Sasaki Decl. at ¶ 10, Exhibit H.) 23 Less than an hour later at 5: 45 p.m., Mr. Balsam sent Mr. Sasaki a letter addressing his 24 Objections to the Amended subpoena that he had just withdrawn. The letter did not address all of 25 Mr. Sasaki’s Objections and it did not address any of the arguments raised in the Motion to Quash. 26 Balsam demanded that Mr. Sasaki meet and confer with him on Monday, November 15, or Tuesday, 27 November 16, while on vacation in Hawaii, even though Mr. Sasaki had previously sent him a notice 28 of unavailability on October 25. (Sasaki Decl. at ¶ 11, Exhibits I.) 8 MOTION FOR SANCTIONS 1 Mr. Sasaki had previously told Mr. Balsam and Jacob Harker that he was the handling 2 attorney, and that neither Mr. Sasaki nor Jean Cha were available before Thanksgiving. Mr. Sasaki 3 told Mr. Balsam that it made no sense to discuss an Amended subpoena that had already been 4 withdrawn. To the best of Mr. Sasaki’s knowledge, Mr. Balsam has yet to issue or serve a Second 5 Amended subpoena. (Ibid.) 6 4. REPEATING ARGUMENTS ALREADY OVERRULED BY THE COURT 7 Mr. Balsam knew that on October 28, 2021, the Court had already granted Mr. Sasaki’s two 8 Ex Parte Applications to continue hearing dates from November 17 and November 24 to December 9 17, to accommodate his Hawaii vacation. Mr. Balsam and Mr. Harker had previously opposed those 10 Ex Parte Applications, insisting that Mr. Sasaki be required to work while in Hawaii. At the 11 hearing, the Court strongly admonished Mr. Harker for failing to accommodate Mr. Sasaki’s 12 Hawaii vacation. (Sasaki Decl. at ¶ 18, Exhibits L and M.) 13 Furthermore, Balsam and Harker repeat their argument, previously raised in their Ex 14 Parte papers and at the Ex Parte hearing, that Jean Cha should be required to handle this 15 matter. But she is not the handling attorney and she is also unavailable during the period before 16 Thanksgiving. Our clients should not be required to waste money getting Mr. Cha up to speed and 17 re-duplicating my efforts on this matter. The Court has already rejected this argument, which 18 Balsam and Harker now revisit in bad faith. (See Exhibit M at p. 5, lines 6-7, highlighted text.) 19 Emailing me on Veteran’s Day Holiday, to insist that I meet and confer with him during my Hawaii 20 vacation, was an act of intentional bad faith by Mr. Balsam. Because I am scheduled to leave for 21 Hawaii on Saturday, November 13, 2021, I was forced to work all evening on Veteran’s Day to 22 respond to Mr. Balsam’s stratagems. Copies of the Notice of Unavailability that I served on 23 10/25/21, Mr. Balsam’s belated meet and confer letter, and related emails are attached as Exhibit I. 24 (Sasaki Decl. at ¶ 11.) 25 In his follow up email, sent at 9:54 p.m. on November 11, Mr. Balsam insisted that I could 26 take his phone call in Hawaii if I really wanted to. He demanded that I meet and confer with 27 him regarding the withdrawn Amended subpoena, “[b]ecause the Second Amended Subpoena 28 is likely to be pretty similar.” Mr. Balsam admitted that he has not yet drafted the Second Amended 9 MOTION FOR SANCTIONS 1 subpoena. Nevertheless, Mr. Balsam announced that I am stillobligated to justify all of my 2 objections to the already-withdrawn Amended subpoena. (Sasaki Decl. at ¶ 11, Exhibit I.) 3 Defendant will therefore seek an additional $500 in sanctions against Mr. Balsam, under CCP 128.5, 4 for this additional instance of bad faith conduct. 5 “[S]ection 128.5 sanctions can be imposed against a lawyer for unjustifiable dereliction 6 in his or her obligations – i.e., conduct that is ‘frivolous’ – committed with an improper motive, 7 such as to harass or manipulate opposing counsel or the court – i.e., committed in subjective 8 ‘bad faith’ – and which results in an opponent incurring additional costs. In short, a lawyer 9 whose dereliction in duty is ‘blatant’ and who has ‘personally misused the judicial system’ can be 10 required to pay associated costs needlessly incurred by an opposing party.” (In re Marriage of 11 Sahafzadeh (2019) 39 Cal.App. 5th 124, 141, citing CCP 128.5.) 12 Mr. Balsam and Mr. Harker have repeatedly tried to schedule conflicting events despite 13 repeated notice from me and my firm of our unavailability. Intentionally scheduling a conflicting 14 proceeding in bad faith or without good cause, with full knowledge of the unavailability of 15 opposing counsel, is sanctionable conduct. (Tenderloin Housing Clinic v. Sparks (1992) 8 Cal. 16 App.4th 299, 307.) 17 As a general rule, “[a]n attorney’s testimony as to the number of hours worked is sufficient 18 evidence to support an award of attorney fees, even in the absence of detailed time records.” 19 (Steiny & Co. v. California Electric Supply Co. (2000) 79 Cal.App.4th 285, 293; Martino v. Denevi 20 (1986) 182 Cal.App.3d 553, 559.) 21 E. CONCLUSION: “YOU CANNOT SHAKE HANDS WITH A CLENCHED FIST.” 22 Defendant brings this Motion for Sanctions reluctantly. But Plaintiff’s counsel have engaged 23 in a pattern and practice of unprofessional conduct that is intended to burden Defendant with 24 emotional stress and skyrocketing legal fees. Our firm has been forced to alert the Court and seek 25 sanctions. But in trying to bury our client with legal fees, Plaintiff’s counsel are also wasting the 26 Court’s resources, requiring the Court to adjudicate frivolous disputes, artificially manufactured by 27 Plaintiff’s counsel. These disputes, had they been genuine, could have been resolved with minimal 28 cost and effort, if only Plaintiff’s counsel were acting in good faith. 10 MOTION FOR SANCTIONS 1 Defendant’s counsel Ed Sasaki has been practicing law since 1992. Never before has he 2 encountered such an extreme degree of bad faith conduct from opposing counsel. Never before, has 3 Mr. Sasaki been forced to file a motion for sanctions under CCP 128.5. The Court should know that 4 the incidents recounted here are just the tip of the iceberg. Plaintiff’s counsel have launched an 5 endless barrage of indignities to harass, intimidate, and burden Defendants and their counsel. 6 Without the Court’s intervention, Plaintiff’s counsel may profit unfairly from their intentional, bad 7 faith misconduct. 8 9 DATED: November 12, 2021 CHA LAW ETHICS 10 11 By: ______________________________________ 12 Jean Cha, Esq. Ed Sasaki, Esq. 13 Attorneys for Defendant ROBIN SHEEHAN 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 11 MOTION FOR SANCTIONS 1 DECLARATION OF EDWIN N. SASAKI 2 I, EDWIN N. SASAKI, declare as follows: 3 1. I am an attorney licensed to practice law in the State of California, and I am a Senior 4 Associate with Cha Law Ethics, counsel of record in this action for Defendant ROBIN SHEEHAN 5 and specially-appearing Defendants BRIAN MORGAN HEIT and HEIT LAW GROUP PC. I have 6 personal knowledge of the facts set forth herein, except as to those matters expressly stated on 7 information and belief. All of the Exhibits attached to this declaration are true and correct copies of 8 the documents described herein. 9 2. On Sunday, October 31, 2021, I received an email from Plaintiff’s counsel Dan 10 Balsam notifying me that he had issued a business records subpoena seeking documents from third 11 party witness Virtual Post Solutions, Inc., which documents are confidential, may be privileged, and 12 relate to Defendants Brian Heit and Heit Law Group PC. A copy of the 10/31/21 email is attached 13 as Exhibit A. 14 3. The Amended subpoena was issued on Sunday, October 31, 2021, and demanded 15 production of records on Saturday, November 20, 2021. A copy of the Amended subpoena is 16 attached as Exhibit B. 17 4. Local Rule 8.2 (A)(2)(a) provides, in relevant part, that: “Parties should confer with 18 all other parties before scheduling and noticing a hearing” 19 5. On Thursday, November 4, 2021, I sent an email to Plaintiff’s counsel Dan Balsam 20 and Jacob Harker, asking them to please contact me to set a time to meet and confer regarding a 21 possible Motion to Quash the Subpoena. Dan Balsam replied that same day. Instead of agreeing to 22 speak by telephone, he asked me to please state the issues and objections I wished to discuss with 23 them. A copy of our 11/4/21 email exchange is attached as Exhibit C. 24 6. On Sunday, November 7, 2021, I responded to Mr. Balsam, setting forth in detail 25 Defendants’ proposed objections and grounds for a Motion to Quash. I also asked them to provide 26 me with dates when they may be available to attend a hearing on the Motion to Quash. Mr. Balsam 27 failed to respond. A copy of my 11/7/21 email is attached as Exhibit D. 28 7. The deadline to file the Motion for Protective Order and Motion to Quash (hereinafter 12 DECLARATION OF EDWIN N. SASAKI 1 collectively “Motion to Quash”) was Wednesday, November 10, 2021. (CCP 2025.410; 1987.1.) 2 Late Tuesday evening, on November 9, 2021, I finished drafting the Motion for Protective Order 3 and Motion to Quash. As of Wednesday morning, November 10, 2021, I had not heard back from 4 Plaintiff’s counsel. Therefore, at about 10:30 a.m. our firm filed and served the Motion to Quash. 5 Copies of the relevant emails are attached as Exhibits E. 6 8. On Tuesday, November 9, 2021, Defendants served detailed Objections to the 7 Amended Subpoena. Copies of the Objections and service email are attached as Exhibit F. 8 9. On Wednesday, November 10, 2021, at about 11:41 a.m., Mr. Balsam sent me an 9 email informally withdrawing the Amended subpoena. But this email was sent only after we had 10 already been forced to draft, file, and serve our Motion by the statutory deadline, with two additional 11 days for email service. (CCP 1010.6 (a)(4)(B); 2025.410.) We were forced to draft our motion 12 because Plaintiff’s counsel refused to meet and confer by telephone on November 4, then failed to 13 timely respond to our email on November 7. A copy of Mr. Balsam’s 11/10/21 email withdrawing 14 the Amended subpoena is attached as Exhibit G. 15 CCP 1983.5 (g) requires the Motion to Quash to be noticed at least 5 days before the date of 16 production on Saturday, November 20, 2021, plus 2 court days for email service. (CCP 1010.6 17 (a)(4)(B). Because November 11, 2021 was a Court Holiday, the filing deadline was Wednesday, 18 November 10. CCP 1987.1 (a) requires the Motion to Quash to be filed within a reasonable time. 19 And pursuant to CCP 1983.5 (g), Plaintiff’s counsel could have argued, and the Court might have 20 found that Wednesday, November 10 was a reasonable deadline. 21 10. On Veteran’s Day, Thursday, November 11, 2021, at 4:55 p.m., Mr. Balsam sent 22 formal notice withdrawing his subpoena. But this was sent on a Court Holiday (CCP 12a), so it