Preview
1 CRAIG C. DANIEL (212588)
MATTHEW J. GLUCK (221571)
2 JUSTIN SOWA (305002) ELECTRONICALLY
GLUCK DANIEL LLP
3 One Sansome Street, Suite 720 F I L E D
Superior Court of California,
San Francisco, CA 94104 County of San Francisco
4 Telephone 415-510-2114
Facsimile 415-510-2208 12/03/2020
5 Clerk of the Court
Email litigation@gluckdaniel.com BY: EDNALEEN ALEGRE
Deputy Clerk
6 Attorneys for Defendants 901 Market St. SF LLC
and Knotel, Inc.
7
8 SUPERIOR COURT FOR THE STATE OF CALIFORNIA
9 COUNTY OF SAN FRANCISCO
10 UNLIMITED JURISDICTION
11
DOORDASH, INC., No. CGC-20-584606
12 Plaintiff,
v. DEFENDANTS’ RESPONSIVE SEPARATE
13 STATEMENT IN OPPOSITION TO
DOORDASH, INC.’S MOTION TO COMPEL
14 901 MARKET ST SF LLC and KNOTEL, FURTHER RESPONSES TO DISCOVERY
INC.,
15 Defendants. Date: December 16, 2020
Time: 9:00 a.m.
16 Dept: 302
17 Complaint filed: May 26, 2020
Trial date: May, 2021
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28
DEFENDANTS’ SEPARATE STATEMENT IN OPP TO MOTION TO COMPEL
1 Pursuant to California Rule of Court 3.1345, Defendants Knotel, Inc. and 901 Market St.
2 SF LLC (the “LLC,” and together with Knotel “Defendants”) submits this Responsive Separate
3 Statement in Opposition DoorDash, Inc.’s Motion to Compel Further Responses to Written
4 Discovery.
5 FORM INTERROGATORIES
6 FORM INTERROGATORY NO. 15.1:
7 Identify each denial of a material allegation and each special or affirmative defense in your
8 pleadings and for each:
9 (a) state all facts upon which you base the denial or special or affirmative defense;
10 (b) state the names, ADDRESSES, and telephone numbers of all PERSONS who have
11 knowledge of those facts; and
12 (c) identify all DOCUMENTS and other tangible things that support your denial or
13 special or affirmative defense, and state the name, ADDRESS, and telephone
14 number of the PERSON who has each DOCUMENT.
15 RESPONSE1 TO FORM INTERROGATORY NO. 15.1
16 OBJECTION: Responding Party objects to this request to the extent overly burdensome,
17 overbroad, excessive, vague, ambiguous, and calls for legal conclusions.
18 OBJECTION: Further, Responding Party objects to this form interrogatory to the extent
19 it requests information protected by the attorney-client privilege or attorney work product doctrine.
20 Without waiving the foregoing objections, Responding Party responds as follows: See
21 filed Answer and Affirmative Defenses One (1) through Fifteen (15), specifically those affirmative
22 defenses which stem from the COVID-19 pandemic globally and in California and the mandatory
23 local, state, and federal orders which materially and adversely effected Defendants’ business,
24 including the ability to access the space.
25 SUPPLEMENTAL RESPONSE TO FORM INTERROGATORY NO. 15.1:
26 OBJECTION: Responding Party objects to this request to the extent overly burdensome,
27
1
28 Consistent with DoorDash’s approach, Defendants submit one joint responsive separate
statement as to both their sets of responses to the discovery at issue.
1
DEFENDANTS’ SEPARATE STATEMENT IN OPP TO MOTION TO COMPEL
1 overbroad, excessive, vague, ambiguous, and calls for legal conclusions.
2 OBJECTION: Further, Responding Party objects to this form interrogatory to the extent
3 it requests information protected by the attorney-client privilege or attorney work product doctrine.
4 Without waiving the foregoing objections, Responding Party responds as follows: See
5 filed Answer and Affirmative Defenses One (1) through Fifteen (15), specifically:
6 First Affirmative Defense:2 This affirmative defense is based on a denial of the material
7 allegations in DoorDash’s Complaint and based on its failure to state a claim for which relief can
8 be granted. See individuals listed in response to Form Interrogatory 12.1.3 All documents to be
9 produced by Responding Party after entry of a Protective Order. Further, Responding Party has
10 not completed discovery in this action, and reserves the right to amend its response to this request
11 with later-discovered responsive information.
12 Second Affirmative Defense:4 This affirmative defense is based on the denial of the
13 material allegations in DoorDash’s Complaint and based on monies due and owing to Defendant
14 Knotel, Inc. for contracts in the State of New York. See individuals listed in response to Form
15 Interrogatory 12.1. All documents to be produced by Responding Party after entry of a Protective
16 Order. Further, Responding Party has not completed discovery in this action, and reserves the right
17 to amend its response to this request with later-discovered responsive information.
18 Third Affirmative Defense:5 This affirmative defense is based on the denial of the material
19 allegations in DoorDash’s Complaint and based on DoorDash’s failure to mitigate any damages
20 or sublease the premises, unilaterally withholding payments due and owing to Defendant Knotel,
21 Inc. pursuant to contracts in the State of New York. This affirmative defense is also based on
22 DoorDash’s demand for monies under the contracts at a time when it did not provide access to the
23
24 2
Failure to State a Cause of Action - “The Complaint fails to state facts sufficient to constitute a
25 cause of action.”
3
Form Interrogatory No. 12.1 requests that the responding party identify persons with knowledge
26 of the facts of and circumstances surrounding this action.
4
Offset - “Any damages to which Plaintiff might be entitled must be offset by the monies Plaintiff
27 owes Defendant Knotel, Inc.”
5
28 Unclean Hands - “The Complaint and each cause of action therein alleged is barred by the
doctrine of unclean hands.”
2
DEFENDANTS’ SEPARATE STATEMENT IN OPP TO MOTION TO COMPEL
1 space due to the COVID-19 pandemic. See individuals listed in response to Form Interrogatory
2 12.1. All documents to be produced by Responding Party after entry of a Protective Order. Further,
3 discovery is ongoing, it may appear after the completion of discovery that facts exist such that
4 Defendant’s obligations under the relevant agreements may be excused in light of the COVID-19
5 pandemic based on the doctrine of unclean hands. Responding Party reserves the right to amend
6 its response to this request with later-discovered responsive information.
7 Fourth Affirmative Defense:6 This affirmative defense is based on the denial of the
8 material allegations in DoorDash’s Complaint and based on DoorDash’s unreasonable delay in
9 pursuing its claim with regard to the letter of credit. See individuals listed in response to Form
10 Interrogatory 12.1. All documents to be produced by Responding Party after entry of a Protective
11 Order. Further, Responding Party has not completed discovery in this action, and reserves the right
12 to amend its response to this request with later-discovered responsive information.
13 Fifth Affirmative Defense:7 This affirmative defense is based on the denial of the material
14 allegations in DoorDash’s Complaint and based on the COVID-19 pandemic globally and in
15 California and the mandatory local, state, and federal orders which materially and adversely effects
16 Defendants business, including the ability to access the space. See individuals listed in response to
17 Form Interrogatory 12.1. All documents to be produced by Responding Party after entry of a
18 Protective Order. Further, discovery is ongoing, it may appear after the completion of discovery
19 that facts exist such that Defendant’s obligations under the relevant agreements may be excused in
20 light of the COVID-19 pandemic based on acts of God. Responding Party reserves the right to
21 amend its response to this request with later-discovered responsive information.
22 Sixth Affirmative Defense:8 This affirmative defense is based on the denial of the material
23 allegations in DoorDash’s Complaint and based on DoorDash’s failure to mitigate its damages
24
6
25 Laches - “The Complaint and each cause of action therein alleged is barred by the doctrine of
laches.”
26 7
Acts of God - “Plaintiff’s claims are the result of an unforeseeable Act of God, thereby excusing,
in whole or in part, Defendants’ performance under the contract.”
27 8
Failure to Mitigate - “Plaintiff failed to properly or adequately mitigate its damages, if any. This
28 failure to mitigate bars and diminishes Plaintiff’s recovery to the extent the damages could have
been mitigated.”
3
DEFENDANTS’ SEPARATE STATEMENT IN OPP TO MOTION TO COMPEL
1 and/or re-let the space to a new tenant. See individuals listed in response to Form Interrogatory
2 12.1. All documents to be produced by Responding Party after entry of a Protective Order. Further,
3 Responding Party has not completed discovery in this action, and reserves the right to amend its
4 response to this request with later-discovered responsive information.
5 Seventh Affirmative Defense:9 This affirmative defense is based on the denial of the
6 material allegations in DoorDash’s Complaint and based on COVID-19 pandemic globally and in
7 California and the mandatory local, state, and federal orders which materially and adversely effects
8 Defendants business, including the ability to access the space. See individuals listed in response
9 to Form Interrogatory 12.1. All documents to be produced by Responding Party after entry of a
10 Protective Order. Further, discovery is ongoing, it may appear after the completion of discovery
11 that facts exist such that Defendant’s obligations under the relevant agreements may be excused
12 in light of the COVID-19 pandemic based on equities weight against relief. Responding Party
13 reserves the right to amend its response to this request with later-discovered responsive
14 information.
15 Eighth Affirmative Defense:10 This affirmative defense is based on the denial of the
16 material allegations in DoorDash’s Complaint and based on a clause in the contracts and the
17 unforeseeable COVID-19 global pandemic that has rendered the performance of the contract as
18 moot. See individuals listed in response to Form Interrogatory 12.1. All documents to be produced
19 by Responding Party after entry of a Protective Order. Further, discovery is ongoing, it may appear
20 after the completion of discovery that facts exist such that Defendant’s obligations under the
21 relevant agreements may be excused in light of the COVID-19 pandemic based on force majeure.
22 Responding Party reserves the right to amend its response to this request with later-discovered
23 responsive information.
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26
9
Equities Weight Against Relief - “The equities in this case weigh against the relief that Plaintiff
27 seeks.”
10
28 Force Majeure - “Defendants’ performance under the contract is excused, in whole or in part,
due to force majeure.”
4
DEFENDANTS’ SEPARATE STATEMENT IN OPP TO MOTION TO COMPEL
1 Ninth Affirmative Defense:11 This affirmative defense is based on the denial of the material
2 allegations in DoorDash’s Complaint and based on DoorDash’s failure to ever take a position or
3 assert any breach with respect to the letter of credit prior to the alleged nonpayment under the lease
4 as well as DoorDash’s waiver of other contractual rights. See individuals listed in response to
5 Form Interrogatory 12.1. All documents to be produced by Responding Party after entry of a
6 Protective Order. Further, Responding Party has not completed discovery in this action, and
7 reserves the right to amend its response to this request with later-discovered responsive
8 information.
9 Tenth Affirmative Defense:12 This affirmative defense is based on the denial of the
10 material allegations in DoorDash’s Complaint and based on COVID-19 pandemic globally and in
11 California and the mandatory local, state, and federal orders which materially and adversely affects
12 Defendants business, including the ability to access the space. See individuals listed in response to
13 Form Interrogatory 12.1. All documents to be produced by Responding Party after entry of a
14 Protective Order. Further, discovery is ongoing, it may appear after the completion of discovery
15 that facts exist such that Defendant’s obligations under the relevant agreements may be excused in
16 light of the COVID-19 pandemic based on waiver and estoppel. Responding Party reserves the
17 right to amend its response to this request with later-discovered responsive information.
18 Eleventh Affirmative Defense:13 This affirmative defense is based on the denial of the
19 material allegations in DoorDash’s Complaint and based on COVID-19 pandemic globally and in
20 California and the mandatory local, state, and federal orders which materially and adversely effects
21 Defendants business, including the ability to access the space. See individuals listed in response to
22 Form Interrogatory 12.1. All documents to be produced by Responding Party after entry of a
23 Protective Order. Further, discovery is ongoing, it may appear after the completion of discovery
24
11
25 Waiver and Estoppel - “The Complaint and each cause of action therein alleged is barred by the
doctrines of waiver and estoppel.”
26 12
“Pursuant to California Code, Civil Code Section 1511, Defendants’ obligations to perform
under the contract are excused, in whole or in part, due to irresistible, superhuman causes.”
27 13
Commercial Frustration - “Due to the COVID-19 Pandemic, and pursuant to the Commercial
28 Frustration Doctrine, Defendants are unable to use the premises for the stated purpose, and as a
result, their performance under the contract is excused, in whole or in part.”
5
DEFENDANTS’ SEPARATE STATEMENT IN OPP TO MOTION TO COMPEL
1 that facts exist such that Defendant’s obligations under the relevant agreements may be excused in
2 light of the COVID-19 pandemic based on commercial frustration. Responding Party reserves the
3 right to amend its response to this request with later-discovered responsive information.
4 Twelfth Affirmative Defense:14 This affirmative defense is based on the denial of the
5 material allegations in DoorDash’s Complaint and based on COVID-19 pandemic globally and in
6 California and the mandatory local, state, and federal orders which materially and adversely effects
7 Defendants business, including the ability to access the space. See individuals listed in response to
8 Form Interrogatory 12.1. All documents to be produced by Responding Party after entry of a
9 Protective Order. Further, discovery is ongoing, it may appear after the completion of discovery
10 that facts exist such that Defendant’s obligations under the relevant agreements may be excused in
11 light of the COVID-19 pandemic based on impossibility/impracticability of performance.
12 Responding Party reserves the right to amend its response to this request with later-discovered
13 responsive information.
14 Thirteenth Affirmative Defense:15 This affirmative defense is based on the denial of the
15 material allegations in DoorDash’s Complaint and based on COVID-19 pandemic globally and in
16 California and the mandatory local, state, and federal orders which materially and adversely effects
17 Defendants business, including the ability to access the space. See individuals listed in response to
18 Form Interrogatory 12.1. All documents to be produced by Responding Party after entry of a
19 Protective Order. Further, discovery is ongoing, it may appear after the completion of discovery
20 that facts exist such that Defendant’s obligations under the relevant agreements may be excused in
21
22
23 14
Impossibility/Impracticability of Performance - “Defendants’ performance is excused, in whole
24 or in part, due to the COVID-19 Pandemic, which has rendered Defendants’ ability to perform its
obligations under the contract impossible and/or impracticable.”
15
25 Government Regulations - “In response to the COVID-19 Pandemic, local, city, state and
federal governments enacted mandatory orders which, among other requirements, mandated that
26 all nonessential personnel work from home, and prohibited any concentration of individuals to
congregate outside their home, for which non-compliance may result in fines or legal action. As a
27 result of these government regulations and orders, Defendants’ business has been materially and
28 adversely affected. As a result, Defendants’ performance under the contract must be excused in
whole or in part.”
6
DEFENDANTS’ SEPARATE STATEMENT IN OPP TO MOTION TO COMPEL
1 light of the COVID-19 pandemic based on government regulations. Responding Party reserves the
2 right to amend its response to this request with later-discovered responsive information.
3 Fourteenth Affirmative Defense:16 This affirmative defense is based on the denial of the
4 material allegations in DoorDash’s Complaint and based on the language of the Guaranty which
5 limits the total liability of Defendant Knotel, Inc. See individuals listed in response to Form
6 Interrogatory 12.1. All documents to be produced by Responding Party after entry of a Protective
7 Order. Further, Responding Party has not completed discovery in this action, and reserves the right
8 to amend its response to this request with later-discovered responsive information.
9 Fifteenth Affirmative Defense:17 This affirmative defense is based on the denial of the
10 material allegations in DoorDash’s Complaint and based on additional defenses that may be
11 revealed through the court of discovery in this matter.
12 PLAINTIFF’S POSITION:
13 Knotel’s objections are meritless. FROG No. 15.1 seeks facts, and the Code makes plain
14 that “[a]n interrogatory is not objectionable because an answer . . . would be based on information
15 obtained or legal theories developed in anticipation of litigation or in preparation for trial.” Civ.
16 Proc. Code § 2030.010(b). See also Fox v. California Sierra Financial Services, 120 F.R.D. 520,
17 529-30 (N.D. Cal. 1988) (granting plaintiff’s motion to compel responses to interrogatories
18 regarding defendants’ affirmative defenses because “the interrogatories seek only the facts on
19 which defendants intend to rely and not documents containing defendants’ attorney’s thought
20 processes”). Moreover, general objections and evasive or incomplete responses will not suffice.
21 Civ. Proc. Code §§ 2030.300(a)(1)&(3). See also SCC Acquisitions, Inc. v. Superior Court (2015)
22 243 Cal. App. 4th. 741, 747 (denying appeal of order granting motion to compel responses to
23
24
25
16
Limitation of Liability - “As against Defendant Knotel, Inc., any damages to which Plaintiff
26 might be entitled is limited by the limitation of liability language set forth in Defendant Knotel
Inc.’s guaranty.”
27 17
Other Defenses - “Defendants reserve the right to assert additional defenses in the event
28 discovery and/or investigation reveals a factual and/or legal basis for such additional affirmative
defenses.”
7
DEFENDANTS’ SEPARATE STATEMENT IN OPP TO MOTION TO COMPEL
1 document discovery requests which were answered by way of “boilerplate general objections”);
2 Clement v. Alegre (2009) 177 Cal. App. 4th 1277, 1284 (affirming grant of motion to compel
3 further responses to interrogatories where objections and responses were “unreasonable, evasive,
4 lacking in legal merit and without justification.”) And objections based on the attorney-client
5 privilege or the work-product privilege must “provide sufficient factual information for other
6 parties to evaluate the merits of that claim.” Civ. Proc. Code § 2031.240. See also People ex rel.
7 Lockyer v. Superior Court (2004) 122 Cal. App. 4th 1060, 1074 (compelling further responses
8 when a party “has raised boilerplate assertions of the attorney-client and work product
9 privileges”); Hernandez v. Superior Court (2003) 112 Cal. App. 4th 285, 294 (affirming grant of
10 motion to compel because boilerplate objections based on privilege were inadequate).
11 With respect to the substance of the responses, Knotel fails to identify any facts or
12 documents upon which it bases its defenses. For example, with respect to its affirmative defense
13 for “failure to state a cause of action,” rather than state the facts upon which it based the defense,
14 Knotel states that “[t]his affirmative defense is based on a denial of the material allegations in
15 DoorDash’s Complaint and based on its failure to state a claim for which relief can be granted.”
16 Similarly, with respect to its defense for “failure to mitigate,” rather than identify supporting facts,
17 Knotel states “[t]his affirmative defense is based on a denial of the material allegations in
18 DoorDash’s Complaint and based on failure to mitigate its damages and/or re-let the space to a
19 new tenant.” And, again, with respect to its defense for laches, Knotel states “[t]his affirmative
20 defense is based on a denial of the material allegations in DoorDash’s Complaint and based on
21 DoorDash’s unreasonable delay in pursuing its claim with regard to the letter of credit.” These
22 responses are evasive because they offer no specific facts supporting Knotel’s defenses; rather,
23 they offer broad denials of the allegations in the complaint along with conclusory statements about
24 the elements of the defense. Moreover, for each defense, rather than identify relevant documents
25 that Knotel claims support it, Knotel simply states that it will produce all documents “after entry
26 of a Protective Order.”
27 The issues encompassed by FROG 15.1 are central to this action. DoorDash is entitled to
28 discover the basis for Knotel’s defenses in order to prepare for trial. Jessen v. Hartford Cas. Ins.
8
DEFENDANTS’ SEPARATE STATEMENT IN OPP TO MOTION TO COMPEL
1 Co. (2003) 111 Cal. App. 4th 698, 711-12 (“[F]or discovery purposes, information is relevant to
2 the ‘subject matter’ of an action if the information might reasonably assist a party in evaluating the
3 case, preparing for trial, or facilitating settlement”). If Knotel can justify its failure to fulfill its
4 obligations under the Lease, Assignment, and Guaranty, then DoorDash has right to discover and
5 test those justifications.
6 DEFENDANTS’ RESPONSE:
7 Form Interrogatory 15.1 asks the responding party to explain the factual bases for its
8 affirmative defenses. Interrogatory responses must be only “as complete and straightforward as the
9 information reasonably available to the responding party permits. If an interrogatory cannot be
10 answered completely, it shall be answered to the extent possible.” (CCP § 2030.220(a), (b).) This
11 case is in the early stages of discovery, and Defendants are still developing and marshalling the
12 facts. Their interrogatory responses necessarily reflect that.
13 Several defenses, including Knotel and the LLC’s fifth (Acts of God), seventh (Equities
14 Weight Against Relief), eighth (Force Majure), tenth (Civil Code section 1511), eleventh
15 (Commercial Frustration), twelfth (Impossibility/Impracticability of Performance), and thirteenth
16 (Government Regulations) relate to the impact of coronavirus and the ensuing government
17 measures. California courts have yet to weigh in on the extent to which the COVID-19 pandemic
18 and the government responses thereto will excuse contractual obligations, and so these defenses
19 are thus developing in real time, as cases work their way through the courts and the courts develop
20 them. Accordingly, and as is common, Defendants asserted these defenses to preserve them. As the
21 facts and law develop, Defendants may abandon some affirmative defenses, and for the ones they
22 do not (if DoorDash serves supplemental interrogatories pursuant to Code of Civil Procedure
23 § 2030.070) Defendants will supplement their responses. At this time, however, it is premature to
24 compel Knotel and the LLC to provide facts and legal theories that they have not yet discovered or
25 developed. Knotel has answered the interrogatories to the best of its current ability.
26 Defendants are not relying on boilerplate defenses. Defendants have agreed to produce any
27 documents that relate to all their affirmative defenses and they have provided a full list of
28 individuals with knowledge of the matters under dispute, including their affirmative defenses, in
9
DEFENDANTS’ SEPARATE STATEMENT IN OPP TO MOTION TO COMPEL
1 response to Form Interrogatory No. 12.1, which they incorporate into their response to Form
2 Interrogatory 15.1. Defendants explain that certain defenses are based on COVID-19 and explain
3 in each case the specific ways COVID-19 has impacted their business and their ability to perform.
4 Defendants did not withhold information based on a claim of privilege. Instead, they
5 provided answers that are reasonably complete based on what they currently know, as the Code of
6 Civil Procedure requires. (CCP § 2030.220(a).) Defendants did not refuse to provide responses;
7 DoorDash is just unhappy with the responses they did provide.
8 FORM INTERROGATORY NO. 17.1:
9 Is your response to each request for admission served with these interrogatories an
10 unqualified admission? If not, for each response that is not an unqualified admission:
11 a. state the number of the request;
12 b. state all facts upon which you base your response;
13 c. state the names, addresses, and telephone numbers of all persons who have
14 knowledge of those facts; and
15 d. identify all documents and other tangible things that support your response and state
16 the name, address, and telephone number of the person who has each document or thing.
17 RESPONSE TO FORM INTERROGATORY NO. 17.1:
18 No.
19 Response to RFA #118
20 Responding Party does not know what Propounding Party means by “the Assignment.”
21
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25
26 18
RFA No. 1: Admit that the document attached hereto as Exhibit A is a true and correct copy of
the ASSIGNMENT.
27 ASSIGNMENT refers to the Assignment of Lease Agreement for the 901 Market property signed
28 and executed by DoorDash and Knotel LLC in June 2019, a copy of which is included at pages 6-
20 of Exhibit 2 to the Complaint in this action.
10
DEFENDANTS’ SEPARATE STATEMENT IN OPP TO MOTION TO COMPEL
1 Response to RFA #219
2 Responding Party does not know what Propounding Party means by “the GUARANTY.”
3 Response to RFA #320
4 Responding Party does not know what Propounding Party means by “the Landlord
5 Consent.”
6 Response to RFA #721
7 Responding Party does not know what Propounding Party means by “Substantially
8 Complied.”
9 Response to RFA #822
10 Responding Party does not know what Propounding Party means by “Substantially
11 Complied.”
12 Response to RFA #923
13 Responding Party does not know what Propounding Party means by “pursuant to the
14 GUARANTY.”
15 Response to RFA #1024
16 Responding Party does not know what Propounding Party means by “pursuant to the
17 GUARANTY.”
18
19
RFA No. 2: Admit that the document attached hereto as Exhibit B is a true and correct copy of
19 the GUARANTY.
20 GUARANTY refers to the Guaranty of Lease and Assignment of Lease Agreement signed and
executed by Knotel, Inc. in June 2019, a copy of which is included at pages 25-30 of Exhibit 2 to
21 the Complaint in this action.
20
RFA No. 3: Admit that the document attached hereto as Exhibit C is a true and correct copy of
22 the LANDLORD CONSENT.
LANDLORD CONSENT refers to the Landlord Consent to Assignment and Assumption of Lease,
23 a copy of which is included in Exhibit 2 to the Complaint in this action.
21
24 RFA No. 7: Admit that DoorDash has substantially complied with its obligations pursuant to the
ASSIGNMENT.
22
25 RFA No. 8: Admit that DoorDash has substantially complied with its obligations pursuant to the
GUARANTY.
26 23
RFA No. 9: Admit that 901 Market ST. SF LLC has not made any payments to LANDLORD
pursuant to ASSIGNMENT since April 1, 2020.
27 LANDLORD refers to Hudson 901 Market, LLC, which is the landlord of 901 Market property.
24
28 RFA No. 10: Admit that 901 Market ST. SF LLC has not made any payments to DOORDASH
pursuant to the ASSIGNMENT since April 1, 2020.
11
DEFENDANTS’ SEPARATE STATEMENT IN OPP TO MOTION TO COMPEL
1 Response to RFA #1125
2 Responding Party does not know what Propounding Party means or intends through its use
3 of the capitalized terms “Notice for Payment,” or “Rent.”
4 Response to RFA #1226
5 Responding Party does not know what Propounding Party means or intends through its use
6 of the capitalized terms “Notice for Payment,” or “ Rent.”
7 Response to RFA #1327
8 Responding Party does not know what Propounding Party means or intends through its use
9 of the capitalized terms “Notice for Payment,” or “Rent.”
10 Response to RFA #1428
11 Responding Party does not know what Propounding Party means or intends through its use
12 of the capitalized terms “Notice for Payment,” or “Rent.”
13
14
15
16
17
18
19
20 25
RFA NO. 11: Admit that the document attached hereto as Exhibit D is a true and correct copy
21 of a Notice for Payment issued to 901 Market ST. SF LLC by LANDLORD related to payment of
April Rent at 901 Market Street in San Francisco, California (hereafter the “April Notice”).
22 26
RFA NO. 12: Admit that the document attached hereto as Exhibit E is a true and correct copy
of a Notice for Payment issued to 901 Market ST. SF LLC by the LANDLORD related to payment
23 of May Rent at 901 Market Street in San Francisco, California (hereinafter the “May
24 Notice”).
27
RFA No. 13: Admit that the document attached hereto as Exhibit F is a true and correct copy
25 of a Notice for Payment issued to 901 Market ST. SF LLC by the LANDLORD related to
payment of June Rent at 901 Market Street in San Francisco, California (hereinafter the “June
26 Notice”).
28
RFA No. 14: Admit that the document attached hereto as Exhibit G is a true and correct copy
27 of a Notice for Payment issued to 901 Market ST. SF LLC by the LANDLORD related to
28 payment of July Rent at 901 Market Street in San Francisco, California (hereinafter the “July
Notice”).
12
DEFENDANTS’ SEPARATE STATEMENT IN OPP TO MOTION TO COMPEL
1 Response to RFA #27,29 28,30 29,31 3032
2 Responding Party does not know what Propounding Party means by “pursuant to the
3 Guaranty.”
4 SUPPLEMENTAL RESPONSE TO FORM INTERROGATORY NO. 17.1:
5 No.
6 Response to RFA #7
7 Responding Party does not know what Propounding Party means by “Substantially
8 Complied.”
9 Response to RFA #8
10 Responding Party does not know what Propounding Party means by “Substantially
11 Complied.”
12 Response to RFA #9
13 Responding Party does not know what Propounding Party means by “pursuant to the
14 GUARANTY.”
15 Response to RFA #10
16 Responding Party does not know what Propounding Party means by “pursuant to the
17 GUARANTY.”
18 Response to RFA #11
19 Responding Party does not know what Propounding Party means or intends through its use
20 of the capitalized terms “Notice for Payment,” or “Rent.”
21
22
23
24 29
RFA No. 27: Admit that 901 Market ST. SF LLC did not obtain a letter of credit pursuant to
25 paragraph 10 of the ASSIGNMENT.
30
RFA No. 28: Admit that 901 Market ST. SF LLC did not provide a letter of credit pursuant to
26 paragraph 10 of the ASSIGNMENT.
31
RFA No. 29: Admit that 901 Market ST. SF LLC did not obtain a letter of credit in the amount
27 of $1,752,265.73 pursuant to paragraph 10 of the ASSIGNMENT.
32
28 RFA No. 30: Admit that 901 Market ST. SF LLC did not provide a letter of credit in the
amount of $1,752,265.73 pursuant to paragraph 10 of the ASSIGNMENT.
13
DEFENDANTS’ SEPARATE STATEMENT IN OPP TO MOTION TO COMPEL
1 Response to RFA #12
2 Responding Party does not know what Propounding Party means or intends through its use
3 of the capitalized terms “Notice for Payment,” or “Rent.”
4 Response to RFA #13
5 Responding Party does not know what Propounding Party means or intends through its use
6 of the capitalized terms “Notice for Payment,” or “Rent.”
7 Response to RFA #14
8 Responding Party does not know what Propounding Party means or intends through its use
9 of the capitalized terms “Notice for Payment,” or “Rent.”
10 Response to RFA #27, 28, 29, 30
11 Responding Party does not know what Propounding Party means by “pursuant to the
12 Guaranty.”
13 PLAINTIFF’S POSITION:
14 Knotel does not respond to the interrogatory. Knotel refuses to admit simple statements
15 regarding whether DoorDash has fulfilled its contractual obligations, whether Knotel has ceased
16 making payments, whether Knotel has provided a letter of credit, and even whether certain
17 documents are authentic. Rather than provide the requested factual basis for its equivocations and
18 denials, however, Knotel claims it does not understand terms such as “Rent” and “pursuant to the
19 Guaranty.” This feigned lack of comprehension is disingenuous. During the November 2 meet and
20 confer, DoorDash offered to clarify any terms Knotel felt were unclear, but Knotel declined the
21 offer, preferring to stand on its answers. Thus, Knotel cannot rest on its purported confusion.
22 Knotel’s responses to other DoorDash RFAs only underscore the fact that Knotel’s confusion is
23 feigned. For example, Knotel was able to admit the authenticity of the Guaranty for purposes of
24 RFA 2, but claims the same document causes confusion for purposes of RFA 9. Declaration of M.
25 Seth in Support of Plaintiff DoorDash, Inc.’s Motion to Compel Further Responses to Discovery,
26 ¶¶ 12-15. Such lack of good-faith willingness to meet and confer is wholly improper. In this case,
27 many of the facts are not in dispute. Indeed, the statements that Knotel has refused to admit
28 without qualification are not in dispute. Knotel’s good-faith RFA responses would clarify the
14
DEFENDANTS’ SEPARATE STATEMENT IN OPP TO MOTION TO COMPEL
1 undisputed facts and substantially narrow the issues, permitting less costly litigation and quicker
2 resolution. For now, however, Knotel has offered only conclusory statements and has left
3 DoorDash with no choice but to cont
Preview
1 CRAIG C. DANIEL (212588) MATTHEW J. GLUCK (221571) 2 JUSTIN SOWA (305002) ELECTRONICALLY GLUCK DANIEL LLP 3 One Sansome Street, Suite 720 F I L E D Superior Court of California, San Francisco, CA 94104 County of San Francisco 4 Telephone 415-510-2114 Facsimile 415-510-2208 12/03/2020 5 Clerk of the Court Email litigation@gluckdaniel.com BY: EDNALEEN ALEGRE Deputy Clerk 6 Attorneys for Defendants 901 Market St. SF LLC and Knotel, Inc. 7 8 SUPERIOR COURT FOR THE STATE OF CALIFORNIA 9 COUNTY OF SAN FRANCISCO 10 UNLIMITED JURISDICTION 11 DOORDASH, INC., No. CGC-20-584606 12 Plaintiff, v. DEFENDANTS’ RESPONSIVE SEPARATE 13 STATEMENT IN OPPOSITION TO DOORDASH, INC.’S MOTION TO COMPEL 14 901 MARKET ST SF LLC and KNOTEL, FURTHER RESPONSES TO DISCOVERY INC., 15 Defendants. Date: December 16, 2020 Time: 9:00 a.m. 16 Dept: 302 17 Complaint filed: May 26, 2020 Trial date: May, 2021 18 19 20 21 22 23 24 25 26 27 28 DEFENDANTS’ SEPARATE STATEMENT IN OPP TO MOTION TO COMPEL 1 Pursuant to California Rule of Court 3.1345, Defendants Knotel, Inc. and 901 Market St. 2 SF LLC (the “LLC,” and together with Knotel “Defendants”) submits this Responsive Separate 3 Statement in Opposition DoorDash, Inc.’s Motion to Compel Further Responses to Written 4 Discovery. 5 FORM INTERROGATORIES 6 FORM INTERROGATORY NO. 15.1: 7 Identify each denial of a material allegation and each special or affirmative defense in your 8 pleadings and for each: 9 (a) state all facts upon which you base the denial or special or affirmative defense; 10 (b) state the names, ADDRESSES, and telephone numbers of all PERSONS who have 11 knowledge of those facts; and 12 (c) identify all DOCUMENTS and other tangible things that support your denial or 13 special or affirmative defense, and state the name, ADDRESS, and telephone 14 number of the PERSON who has each DOCUMENT. 15 RESPONSE1 TO FORM INTERROGATORY NO. 15.1 16 OBJECTION: Responding Party objects to this request to the extent overly burdensome, 17 overbroad, excessive, vague, ambiguous, and calls for legal conclusions. 18 OBJECTION: Further, Responding Party objects to this form interrogatory to the extent 19 it requests information protected by the attorney-client privilege or attorney work product doctrine. 20 Without waiving the foregoing objections, Responding Party responds as follows: See 21 filed Answer and Affirmative Defenses One (1) through Fifteen (15), specifically those affirmative 22 defenses which stem from the COVID-19 pandemic globally and in California and the mandatory 23 local, state, and federal orders which materially and adversely effected Defendants’ business, 24 including the ability to access the space. 25 SUPPLEMENTAL RESPONSE TO FORM INTERROGATORY NO. 15.1: 26 OBJECTION: Responding Party objects to this request to the extent overly burdensome, 27 1 28 Consistent with DoorDash’s approach, Defendants submit one joint responsive separate statement as to both their sets of responses to the discovery at issue. 1 DEFENDANTS’ SEPARATE STATEMENT IN OPP TO MOTION TO COMPEL 1 overbroad, excessive, vague, ambiguous, and calls for legal conclusions. 2 OBJECTION: Further, Responding Party objects to this form interrogatory to the extent 3 it requests information protected by the attorney-client privilege or attorney work product doctrine. 4 Without waiving the foregoing objections, Responding Party responds as follows: See 5 filed Answer and Affirmative Defenses One (1) through Fifteen (15), specifically: 6 First Affirmative Defense:2 This affirmative defense is based on a denial of the material 7 allegations in DoorDash’s Complaint and based on its failure to state a claim for which relief can 8 be granted. See individuals listed in response to Form Interrogatory 12.1.3 All documents to be 9 produced by Responding Party after entry of a Protective Order. Further, Responding Party has 10 not completed discovery in this action, and reserves the right to amend its response to this request 11 with later-discovered responsive information. 12 Second Affirmative Defense:4 This affirmative defense is based on the denial of the 13 material allegations in DoorDash’s Complaint and based on monies due and owing to Defendant 14 Knotel, Inc. for contracts in the State of New York. See individuals listed in response to Form 15 Interrogatory 12.1. All documents to be produced by Responding Party after entry of a Protective 16 Order. Further, Responding Party has not completed discovery in this action, and reserves the right 17 to amend its response to this request with later-discovered responsive information. 18 Third Affirmative Defense:5 This affirmative defense is based on the denial of the material 19 allegations in DoorDash’s Complaint and based on DoorDash’s failure to mitigate any damages 20 or sublease the premises, unilaterally withholding payments due and owing to Defendant Knotel, 21 Inc. pursuant to contracts in the State of New York. This affirmative defense is also based on 22 DoorDash’s demand for monies under the contracts at a time when it did not provide access to the 23 24 2 Failure to State a Cause of Action - “The Complaint fails to state facts sufficient to constitute a 25 cause of action.” 3 Form Interrogatory No. 12.1 requests that the responding party identify persons with knowledge 26 of the facts of and circumstances surrounding this action. 4 Offset - “Any damages to which Plaintiff might be entitled must be offset by the monies Plaintiff 27 owes Defendant Knotel, Inc.” 5 28 Unclean Hands - “The Complaint and each cause of action therein alleged is barred by the doctrine of unclean hands.” 2 DEFENDANTS’ SEPARATE STATEMENT IN OPP TO MOTION TO COMPEL 1 space due to the COVID-19 pandemic. See individuals listed in response to Form Interrogatory 2 12.1. All documents to be produced by Responding Party after entry of a Protective Order. Further, 3 discovery is ongoing, it may appear after the completion of discovery that facts exist such that 4 Defendant’s obligations under the relevant agreements may be excused in light of the COVID-19 5 pandemic based on the doctrine of unclean hands. Responding Party reserves the right to amend 6 its response to this request with later-discovered responsive information. 7 Fourth Affirmative Defense:6 This affirmative defense is based on the denial of the 8 material allegations in DoorDash’s Complaint and based on DoorDash’s unreasonable delay in 9 pursuing its claim with regard to the letter of credit. See individuals listed in response to Form 10 Interrogatory 12.1. All documents to be produced by Responding Party after entry of a Protective 11 Order. Further, Responding Party has not completed discovery in this action, and reserves the right 12 to amend its response to this request with later-discovered responsive information. 13 Fifth Affirmative Defense:7 This affirmative defense is based on the denial of the material 14 allegations in DoorDash’s Complaint and based on the COVID-19 pandemic globally and in 15 California and the mandatory local, state, and federal orders which materially and adversely effects 16 Defendants business, including the ability to access the space. See individuals listed in response to 17 Form Interrogatory 12.1. All documents to be produced by Responding Party after entry of a 18 Protective Order. Further, discovery is ongoing, it may appear after the completion of discovery 19 that facts exist such that Defendant’s obligations under the relevant agreements may be excused in 20 light of the COVID-19 pandemic based on acts of God. Responding Party reserves the right to 21 amend its response to this request with later-discovered responsive information. 22 Sixth Affirmative Defense:8 This affirmative defense is based on the denial of the material 23 allegations in DoorDash’s Complaint and based on DoorDash’s failure to mitigate its damages 24 6 25 Laches - “The Complaint and each cause of action therein alleged is barred by the doctrine of laches.” 26 7 Acts of God - “Plaintiff’s claims are the result of an unforeseeable Act of God, thereby excusing, in whole or in part, Defendants’ performance under the contract.” 27 8 Failure to Mitigate - “Plaintiff failed to properly or adequately mitigate its damages, if any. This 28 failure to mitigate bars and diminishes Plaintiff’s recovery to the extent the damages could have been mitigated.” 3 DEFENDANTS’ SEPARATE STATEMENT IN OPP TO MOTION TO COMPEL 1 and/or re-let the space to a new tenant. See individuals listed in response to Form Interrogatory 2 12.1. All documents to be produced by Responding Party after entry of a Protective Order. Further, 3 Responding Party has not completed discovery in this action, and reserves the right to amend its 4 response to this request with later-discovered responsive information. 5 Seventh Affirmative Defense:9 This affirmative defense is based on the denial of the 6 material allegations in DoorDash’s Complaint and based on COVID-19 pandemic globally and in 7 California and the mandatory local, state, and federal orders which materially and adversely effects 8 Defendants business, including the ability to access the space. See individuals listed in response 9 to Form Interrogatory 12.1. All documents to be produced by Responding Party after entry of a 10 Protective Order. Further, discovery is ongoing, it may appear after the completion of discovery 11 that facts exist such that Defendant’s obligations under the relevant agreements may be excused 12 in light of the COVID-19 pandemic based on equities weight against relief. Responding Party 13 reserves the right to amend its response to this request with later-discovered responsive 14 information. 15 Eighth Affirmative Defense:10 This affirmative defense is based on the denial of the 16 material allegations in DoorDash’s Complaint and based on a clause in the contracts and the 17 unforeseeable COVID-19 global pandemic that has rendered the performance of the contract as 18 moot. See individuals listed in response to Form Interrogatory 12.1. All documents to be produced 19 by Responding Party after entry of a Protective Order. Further, discovery is ongoing, it may appear 20 after the completion of discovery that facts exist such that Defendant’s obligations under the 21 relevant agreements may be excused in light of the COVID-19 pandemic based on force majeure. 22 Responding Party reserves the right to amend its response to this request with later-discovered 23 responsive information. 24 25 26 9 Equities Weight Against Relief - “The equities in this case weigh against the relief that Plaintiff 27 seeks.” 10 28 Force Majeure - “Defendants’ performance under the contract is excused, in whole or in part, due to force majeure.” 4 DEFENDANTS’ SEPARATE STATEMENT IN OPP TO MOTION TO COMPEL 1 Ninth Affirmative Defense:11 This affirmative defense is based on the denial of the material 2 allegations in DoorDash’s Complaint and based on DoorDash’s failure to ever take a position or 3 assert any breach with respect to the letter of credit prior to the alleged nonpayment under the lease 4 as well as DoorDash’s waiver of other contractual rights. See individuals listed in response to 5 Form Interrogatory 12.1. All documents to be produced by Responding Party after entry of a 6 Protective Order. Further, Responding Party has not completed discovery in this action, and 7 reserves the right to amend its response to this request with later-discovered responsive 8 information. 9 Tenth Affirmative Defense:12 This affirmative defense is based on the denial of the 10 material allegations in DoorDash’s Complaint and based on COVID-19 pandemic globally and in 11 California and the mandatory local, state, and federal orders which materially and adversely affects 12 Defendants business, including the ability to access the space. See individuals listed in response to 13 Form Interrogatory 12.1. All documents to be produced by Responding Party after entry of a 14 Protective Order. Further, discovery is ongoing, it may appear after the completion of discovery 15 that facts exist such that Defendant’s obligations under the relevant agreements may be excused in 16 light of the COVID-19 pandemic based on waiver and estoppel. Responding Party reserves the 17 right to amend its response to this request with later-discovered responsive information. 18 Eleventh Affirmative Defense:13 This affirmative defense is based on the denial of the 19 material allegations in DoorDash’s Complaint and based on COVID-19 pandemic globally and in 20 California and the mandatory local, state, and federal orders which materially and adversely effects 21 Defendants business, including the ability to access the space. See individuals listed in response to 22 Form Interrogatory 12.1. All documents to be produced by Responding Party after entry of a 23 Protective Order. Further, discovery is ongoing, it may appear after the completion of discovery 24 11 25 Waiver and Estoppel - “The Complaint and each cause of action therein alleged is barred by the doctrines of waiver and estoppel.” 26 12 “Pursuant to California Code, Civil Code Section 1511, Defendants’ obligations to perform under the contract are excused, in whole or in part, due to irresistible, superhuman causes.” 27 13 Commercial Frustration - “Due to the COVID-19 Pandemic, and pursuant to the Commercial 28 Frustration Doctrine, Defendants are unable to use the premises for the stated purpose, and as a result, their performance under the contract is excused, in whole or in part.” 5 DEFENDANTS’ SEPARATE STATEMENT IN OPP TO MOTION TO COMPEL 1 that facts exist such that Defendant’s obligations under the relevant agreements may be excused in 2 light of the COVID-19 pandemic based on commercial frustration. Responding Party reserves the 3 right to amend its response to this request with later-discovered responsive information. 4 Twelfth Affirmative Defense:14 This affirmative defense is based on the denial of the 5 material allegations in DoorDash’s Complaint and based on COVID-19 pandemic globally and in 6 California and the mandatory local, state, and federal orders which materially and adversely effects 7 Defendants business, including the ability to access the space. See individuals listed in response to 8 Form Interrogatory 12.1. All documents to be produced by Responding Party after entry of a 9 Protective Order. Further, discovery is ongoing, it may appear after the completion of discovery 10 that facts exist such that Defendant’s obligations under the relevant agreements may be excused in 11 light of the COVID-19 pandemic based on impossibility/impracticability of performance. 12 Responding Party reserves the right to amend its response to this request with later-discovered 13 responsive information. 14 Thirteenth Affirmative Defense:15 This affirmative defense is based on the denial of the 15 material allegations in DoorDash’s Complaint and based on COVID-19 pandemic globally and in 16 California and the mandatory local, state, and federal orders which materially and adversely effects 17 Defendants business, including the ability to access the space. See individuals listed in response to 18 Form Interrogatory 12.1. All documents to be produced by Responding Party after entry of a 19 Protective Order. Further, discovery is ongoing, it may appear after the completion of discovery 20 that facts exist such that Defendant’s obligations under the relevant agreements may be excused in 21 22 23 14 Impossibility/Impracticability of Performance - “Defendants’ performance is excused, in whole 24 or in part, due to the COVID-19 Pandemic, which has rendered Defendants’ ability to perform its obligations under the contract impossible and/or impracticable.” 15 25 Government Regulations - “In response to the COVID-19 Pandemic, local, city, state and federal governments enacted mandatory orders which, among other requirements, mandated that 26 all nonessential personnel work from home, and prohibited any concentration of individuals to congregate outside their home, for which non-compliance may result in fines or legal action. As a 27 result of these government regulations and orders, Defendants’ business has been materially and 28 adversely affected. As a result, Defendants’ performance under the contract must be excused in whole or in part.” 6 DEFENDANTS’ SEPARATE STATEMENT IN OPP TO MOTION TO COMPEL 1 light of the COVID-19 pandemic based on government regulations. Responding Party reserves the 2 right to amend its response to this request with later-discovered responsive information. 3 Fourteenth Affirmative Defense:16 This affirmative defense is based on the denial of the 4 material allegations in DoorDash’s Complaint and based on the language of the Guaranty which 5 limits the total liability of Defendant Knotel, Inc. See individuals listed in response to Form 6 Interrogatory 12.1. All documents to be produced by Responding Party after entry of a Protective 7 Order. Further, Responding Party has not completed discovery in this action, and reserves the right 8 to amend its response to this request with later-discovered responsive information. 9 Fifteenth Affirmative Defense:17 This affirmative defense is based on the denial of the 10 material allegations in DoorDash’s Complaint and based on additional defenses that may be 11 revealed through the court of discovery in this matter. 12 PLAINTIFF’S POSITION: 13 Knotel’s objections are meritless. FROG No. 15.1 seeks facts, and the Code makes plain 14 that “[a]n interrogatory is not objectionable because an answer . . . would be based on information 15 obtained or legal theories developed in anticipation of litigation or in preparation for trial.” Civ. 16 Proc. Code § 2030.010(b). See also Fox v. California Sierra Financial Services, 120 F.R.D. 520, 17 529-30 (N.D. Cal. 1988) (granting plaintiff’s motion to compel responses to interrogatories 18 regarding defendants’ affirmative defenses because “the interrogatories seek only the facts on 19 which defendants intend to rely and not documents containing defendants’ attorney’s thought 20 processes”). Moreover, general objections and evasive or incomplete responses will not suffice. 21 Civ. Proc. Code §§ 2030.300(a)(1)&(3). See also SCC Acquisitions, Inc. v. Superior Court (2015) 22 243 Cal. App. 4th. 741, 747 (denying appeal of order granting motion to compel responses to 23 24 25 16 Limitation of Liability - “As against Defendant Knotel, Inc., any damages to which Plaintiff 26 might be entitled is limited by the limitation of liability language set forth in Defendant Knotel Inc.’s guaranty.” 27 17 Other Defenses - “Defendants reserve the right to assert additional defenses in the event 28 discovery and/or investigation reveals a factual and/or legal basis for such additional affirmative defenses.” 7 DEFENDANTS’ SEPARATE STATEMENT IN OPP TO MOTION TO COMPEL 1 document discovery requests which were answered by way of “boilerplate general objections”); 2 Clement v. Alegre (2009) 177 Cal. App. 4th 1277, 1284 (affirming grant of motion to compel 3 further responses to interrogatories where objections and responses were “unreasonable, evasive, 4 lacking in legal merit and without justification.”) And objections based on the attorney-client 5 privilege or the work-product privilege must “provide sufficient factual information for other 6 parties to evaluate the merits of that claim.” Civ. Proc. Code § 2031.240. See also People ex rel. 7 Lockyer v. Superior Court (2004) 122 Cal. App. 4th 1060, 1074 (compelling further responses 8 when a party “has raised boilerplate assertions of the attorney-client and work product 9 privileges”); Hernandez v. Superior Court (2003) 112 Cal. App. 4th 285, 294 (affirming grant of 10 motion to compel because boilerplate objections based on privilege were inadequate). 11 With respect to the substance of the responses, Knotel fails to identify any facts or 12 documents upon which it bases its defenses. For example, with respect to its affirmative defense 13 for “failure to state a cause of action,” rather than state the facts upon which it based the defense, 14 Knotel states that “[t]his affirmative defense is based on a denial of the material allegations in 15 DoorDash’s Complaint and based on its failure to state a claim for which relief can be granted.” 16 Similarly, with respect to its defense for “failure to mitigate,” rather than identify supporting facts, 17 Knotel states “[t]his affirmative defense is based on a denial of the material allegations in 18 DoorDash’s Complaint and based on failure to mitigate its damages and/or re-let the space to a 19 new tenant.” And, again, with respect to its defense for laches, Knotel states “[t]his affirmative 20 defense is based on a denial of the material allegations in DoorDash’s Complaint and based on 21 DoorDash’s unreasonable delay in pursuing its claim with regard to the letter of credit.” These 22 responses are evasive because they offer no specific facts supporting Knotel’s defenses; rather, 23 they offer broad denials of the allegations in the complaint along with conclusory statements about 24 the elements of the defense. Moreover, for each defense, rather than identify relevant documents 25 that Knotel claims support it, Knotel simply states that it will produce all documents “after entry 26 of a Protective Order.” 27 The issues encompassed by FROG 15.1 are central to this action. DoorDash is entitled to 28 discover the basis for Knotel’s defenses in order to prepare for trial. Jessen v. Hartford Cas. Ins. 8 DEFENDANTS’ SEPARATE STATEMENT IN OPP TO MOTION TO COMPEL 1 Co. (2003) 111 Cal. App. 4th 698, 711-12 (“[F]or discovery purposes, information is relevant to 2 the ‘subject matter’ of an action if the information might reasonably assist a party in evaluating the 3 case, preparing for trial, or facilitating settlement”). If Knotel can justify its failure to fulfill its 4 obligations under the Lease, Assignment, and Guaranty, then DoorDash has right to discover and 5 test those justifications. 6 DEFENDANTS’ RESPONSE: 7 Form Interrogatory 15.1 asks the responding party to explain the factual bases for its 8 affirmative defenses. Interrogatory responses must be only “as complete and straightforward as the 9 information reasonably available to the responding party permits. If an interrogatory cannot be 10 answered completely, it shall be answered to the extent possible.” (CCP § 2030.220(a), (b).) This 11 case is in the early stages of discovery, and Defendants are still developing and marshalling the 12 facts. Their interrogatory responses necessarily reflect that. 13 Several defenses, including Knotel and the LLC’s fifth (Acts of God), seventh (Equities 14 Weight Against Relief), eighth (Force Majure), tenth (Civil Code section 1511), eleventh 15 (Commercial Frustration), twelfth (Impossibility/Impracticability of Performance), and thirteenth 16 (Government Regulations) relate to the impact of coronavirus and the ensuing government 17 measures. California courts have yet to weigh in on the extent to which the COVID-19 pandemic 18 and the government responses thereto will excuse contractual obligations, and so these defenses 19 are thus developing in real time, as cases work their way through the courts and the courts develop 20 them. Accordingly, and as is common, Defendants asserted these defenses to preserve them. As the 21 facts and law develop, Defendants may abandon some affirmative defenses, and for the ones they 22 do not (if DoorDash serves supplemental interrogatories pursuant to Code of Civil Procedure 23 § 2030.070) Defendants will supplement their responses. At this time, however, it is premature to 24 compel Knotel and the LLC to provide facts and legal theories that they have not yet discovered or 25 developed. Knotel has answered the interrogatories to the best of its current ability. 26 Defendants are not relying on boilerplate defenses. Defendants have agreed to produce any 27 documents that relate to all their affirmative defenses and they have provided a full list of 28 individuals with knowledge of the matters under dispute, including their affirmative defenses, in 9 DEFENDANTS’ SEPARATE STATEMENT IN OPP TO MOTION TO COMPEL 1 response to Form Interrogatory No. 12.1, which they incorporate into their response to Form 2 Interrogatory 15.1. Defendants explain that certain defenses are based on COVID-19 and explain 3 in each case the specific ways COVID-19 has impacted their business and their ability to perform. 4 Defendants did not withhold information based on a claim of privilege. Instead, they 5 provided answers that are reasonably complete based on what they currently know, as the Code of 6 Civil Procedure requires. (CCP § 2030.220(a).) Defendants did not refuse to provide responses; 7 DoorDash is just unhappy with the responses they did provide. 8 FORM INTERROGATORY NO. 17.1: 9 Is your response to each request for admission served with these interrogatories an 10 unqualified admission? If not, for each response that is not an unqualified admission: 11 a. state the number of the request; 12 b. state all facts upon which you base your response; 13 c. state the names, addresses, and telephone numbers of all persons who have 14 knowledge of those facts; and 15 d. identify all documents and other tangible things that support your response and state 16 the name, address, and telephone number of the person who has each document or thing. 17 RESPONSE TO FORM INTERROGATORY NO. 17.1: 18 No. 19 Response to RFA #118 20 Responding Party does not know what Propounding Party means by “the Assignment.” 21 22 23 24 25 26 18 RFA No. 1: Admit that the document attached hereto as Exhibit A is a true and correct copy of the ASSIGNMENT. 27 ASSIGNMENT refers to the Assignment of Lease Agreement for the 901 Market property signed 28 and executed by DoorDash and Knotel LLC in June 2019, a copy of which is included at pages 6- 20 of Exhibit 2 to the Complaint in this action. 10 DEFENDANTS’ SEPARATE STATEMENT IN OPP TO MOTION TO COMPEL 1 Response to RFA #219 2 Responding Party does not know what Propounding Party means by “the GUARANTY.” 3 Response to RFA #320 4 Responding Party does not know what Propounding Party means by “the Landlord 5 Consent.” 6 Response to RFA #721 7 Responding Party does not know what Propounding Party means by “Substantially 8 Complied.” 9 Response to RFA #822 10 Responding Party does not know what Propounding Party means by “Substantially 11 Complied.” 12 Response to RFA #923 13 Responding Party does not know what Propounding Party means by “pursuant to the 14 GUARANTY.” 15 Response to RFA #1024 16 Responding Party does not know what Propounding Party means by “pursuant to the 17 GUARANTY.” 18 19 RFA No. 2: Admit that the document attached hereto as Exhibit B is a true and correct copy of 19 the GUARANTY. 20 GUARANTY refers to the Guaranty of Lease and Assignment of Lease Agreement signed and executed by Knotel, Inc. in June 2019, a copy of which is included at pages 25-30 of Exhibit 2 to 21 the Complaint in this action. 20 RFA No. 3: Admit that the document attached hereto as Exhibit C is a true and correct copy of 22 the LANDLORD CONSENT. LANDLORD CONSENT refers to the Landlord Consent to Assignment and Assumption of Lease, 23 a copy of which is included in Exhibit 2 to the Complaint in this action. 21 24 RFA No. 7: Admit that DoorDash has substantially complied with its obligations pursuant to the ASSIGNMENT. 22 25 RFA No. 8: Admit that DoorDash has substantially complied with its obligations pursuant to the GUARANTY. 26 23 RFA No. 9: Admit that 901 Market ST. SF LLC has not made any payments to LANDLORD pursuant to ASSIGNMENT since April 1, 2020. 27 LANDLORD refers to Hudson 901 Market, LLC, which is the landlord of 901 Market property. 24 28 RFA No. 10: Admit that 901 Market ST. SF LLC has not made any payments to DOORDASH pursuant to the ASSIGNMENT since April 1, 2020. 11 DEFENDANTS’ SEPARATE STATEMENT IN OPP TO MOTION TO COMPEL 1 Response to RFA #1125 2 Responding Party does not know what Propounding Party means or intends through its use 3 of the capitalized terms “Notice for Payment,” or “Rent.” 4 Response to RFA #1226 5 Responding Party does not know what Propounding Party means or intends through its use 6 of the capitalized terms “Notice for Payment,” or “ Rent.” 7 Response to RFA #1327 8 Responding Party does not know what Propounding Party means or intends through its use 9 of the capitalized terms “Notice for Payment,” or “Rent.” 10 Response to RFA #1428 11 Responding Party does not know what Propounding Party means or intends through its use 12 of the capitalized terms “Notice for Payment,” or “Rent.” 13 14 15 16 17 18 19 20 25 RFA NO. 11: Admit that the document attached hereto as Exhibit D is a true and correct copy 21 of a Notice for Payment issued to 901 Market ST. SF LLC by LANDLORD related to payment of April Rent at 901 Market Street in San Francisco, California (hereafter the “April Notice”). 22 26 RFA NO. 12: Admit that the document attached hereto as Exhibit E is a true and correct copy of a Notice for Payment issued to 901 Market ST. SF LLC by the LANDLORD related to payment 23 of May Rent at 901 Market Street in San Francisco, California (hereinafter the “May 24 Notice”). 27 RFA No. 13: Admit that the document attached hereto as Exhibit F is a true and correct copy 25 of a Notice for Payment issued to 901 Market ST. SF LLC by the LANDLORD related to payment of June Rent at 901 Market Street in San Francisco, California (hereinafter the “June 26 Notice”). 28 RFA No. 14: Admit that the document attached hereto as Exhibit G is a true and correct copy 27 of a Notice for Payment issued to 901 Market ST. SF LLC by the LANDLORD related to 28 payment of July Rent at 901 Market Street in San Francisco, California (hereinafter the “July Notice”). 12 DEFENDANTS’ SEPARATE STATEMENT IN OPP TO MOTION TO COMPEL 1 Response to RFA #27,29 28,30 29,31 3032 2 Responding Party does not know what Propounding Party means by “pursuant to the 3 Guaranty.” 4 SUPPLEMENTAL RESPONSE TO FORM INTERROGATORY NO. 17.1: 5 No. 6 Response to RFA #7 7 Responding Party does not know what Propounding Party means by “Substantially 8 Complied.” 9 Response to RFA #8 10 Responding Party does not know what Propounding Party means by “Substantially 11 Complied.” 12 Response to RFA #9 13 Responding Party does not know what Propounding Party means by “pursuant to the 14 GUARANTY.” 15 Response to RFA #10 16 Responding Party does not know what Propounding Party means by “pursuant to the 17 GUARANTY.” 18 Response to RFA #11 19 Responding Party does not know what Propounding Party means or intends through its use 20 of the capitalized terms “Notice for Payment,” or “Rent.” 21 22 23 24 29 RFA No. 27: Admit that 901 Market ST. SF LLC did not obtain a letter of credit pursuant to 25 paragraph 10 of the ASSIGNMENT. 30 RFA No. 28: Admit that 901 Market ST. SF LLC did not provide a letter of credit pursuant to 26 paragraph 10 of the ASSIGNMENT. 31 RFA No. 29: Admit that 901 Market ST. SF LLC did not obtain a letter of credit in the amount 27 of $1,752,265.73 pursuant to paragraph 10 of the ASSIGNMENT. 32 28 RFA No. 30: Admit that 901 Market ST. SF LLC did not provide a letter of credit in the amount of $1,752,265.73 pursuant to paragraph 10 of the ASSIGNMENT. 13 DEFENDANTS’ SEPARATE STATEMENT IN OPP TO MOTION TO COMPEL 1 Response to RFA #12 2 Responding Party does not know what Propounding Party means or intends through its use 3 of the capitalized terms “Notice for Payment,” or “Rent.” 4 Response to RFA #13 5 Responding Party does not know what Propounding Party means or intends through its use 6 of the capitalized terms “Notice for Payment,” or “Rent.” 7 Response to RFA #14 8 Responding Party does not know what Propounding Party means or intends through its use 9 of the capitalized terms “Notice for Payment,” or “Rent.” 10 Response to RFA #27, 28, 29, 30 11 Responding Party does not know what Propounding Party means by “pursuant to the 12 Guaranty.” 13 PLAINTIFF’S POSITION: 14 Knotel does not respond to the interrogatory. Knotel refuses to admit simple statements 15 regarding whether DoorDash has fulfilled its contractual obligations, whether Knotel has ceased 16 making payments, whether Knotel has provided a letter of credit, and even whether certain 17 documents are authentic. Rather than provide the requested factual basis for its equivocations and 18 denials, however, Knotel claims it does not understand terms such as “Rent” and “pursuant to the 19 Guaranty.” This feigned lack of comprehension is disingenuous. During the November 2 meet and 20 confer, DoorDash offered to clarify any terms Knotel felt were unclear, but Knotel declined the 21 offer, preferring to stand on its answers. Thus, Knotel cannot rest on its purported confusion. 22 Knotel’s responses to other DoorDash RFAs only underscore the fact that Knotel’s confusion is 23 feigned. For example, Knotel was able to admit the authenticity of the Guaranty for purposes of 24 RFA 2, but claims the same document causes confusion for purposes of RFA 9. Declaration of M. 25 Seth in Support of Plaintiff DoorDash, Inc.’s Motion to Compel Further Responses to Discovery, 26 ¶¶ 12-15. Such lack of good-faith willingness to meet and confer is wholly improper. In this case, 27 many of the facts are not in dispute. Indeed, the statements that Knotel has refused to admit 28 without qualification are not in dispute. Knotel’s good-faith RFA responses would clarify the 14 DEFENDANTS’ SEPARATE STATEMENT IN OPP TO MOTION TO COMPEL 1 undisputed facts and substantially narrow the issues, permitting less costly litigation and quicker 2 resolution. For now, however, Knotel has offered only conclusory statements and has left 3 DoorDash with no choice but to cont