On March 15, 2022 a
62936Defen008b6e
was filed
involving a dispute between
Arntsen Family Partnership, Lp,
Arntsen, Robert,
Brian Christopher Dunn Custodianship,
Ho, John,
Huang, Quanyu,
Lee, Mary,
and
Black Horse Holdings, Llc,
Bragg, David M,
Caproc Iii, Llc,
Davis, Gregory J,
Huang, Quanyu,
Huish, Dale,
Justesen, Jason,
Kludt, Kurtis Stuart,
Mclan Trust,
Monks Family Trust,
Oneil, Scott,
Paramont Capital, Llc,
Paramont Woodside, Llc,
Silicon Valley Real Ventures, Llc,
Stoker, Diane,
Stoker, Phil,
Svrv 385 Moore, Llc,
Svrv 387 Moore, Llc,
Teh Capital, Llc,
Wild Rose Irrevocable Trust,
Wolfe, Kevin,
Wz Partners Llc,
for (16) Unlimited Fraud
in the District Court of San Mateo County.
Preview
1 MARK POE (S.B. #223714)
mpoe@gawpoe.com
2 RANDOLPH GAW (S.B. #223718)
rgaw@gawpoe.com
3 GAW | POE LLP
4 Embarcadero, Suite 1400
4 San Francisco, CA 94111
Telephone: (415) 766-7451
5 Facsimile: (415) 737-0642
6 Attorneys for Defendant
KURTIS KLUDT
7
8
9
SUPERIOR COURT FOR THE STATE OF CALIFORNIA
10
COUNTY OF SAN MATEO
11
12 Robert Arntsen; Mary Lee; Arntsen Case No.: 22-CIV-01148
Family Partnership, LP; and Brian
13 Christopher Dunn Custodianship; KURTIS KLUDT’S OPPOSITION TO
PLAINTIFFS’ MOTION TO COMPEL
14 Plaintiffs, AND FOR DISCOVERY SANCTIONS
15 v. Hr’g Date: September 16, 2022
Time: 9:00 a.m.
16 David M. Bragg; Kurtis Stuart Kludt; Judge: Hon. Robert D. Foiles
Silicon Valley Real Ventures LLC; Dept: 21
17 SVRV 385 Moore, LLC; SVRV 387 Date Filed: Mar. 15, 2022
Moore, LLC; Gregory J. Davis; Paramont Trial Date: None set
18 Woodside, LLC; and Paramont Capital,
LLC,
19
Defendants.
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KLUDT OPP. TO PLAINTIFFS’ MOT. TO
COMPEL AND FOR SANCTIONS
CASE NO. 22-CIV-01148
1 I. INTRODUCTION
2 The plaintiffs in this matter are represented by a hyper-aggressive young lawyer who ends
3 most of his emails with a threat that he will seek sanctions if he doesn’t immediately get his way.
4 See Decl. of Mark Poe ¶ 2. In his aggression, Mr. Vierra has now filed a lengthy motion to
5 compel, accompanied by an 8-page declaration and a 252-page compendium of exhibits.
6 Plaintiffs’ mammoth filing is topped off with a demand that the Court sanction Defendant Kurtis
7 Kludt in the amount of $7,786.68, for not doing exactly what Mr. Vierra demands, exactly when
8 he wants it done.
9 In his righteous zeal, Plaintiffs’ counsel has violated a number of very basic requirements
10 for how one is to bring a motion to compel. The motion and supporting brief wholly disregard
11 the requirements of CRC 3.1345, which has the clear title “Format of discovery motions.” Mr.
12 Vierra and his client have failed to provide the “separate statement” required by CRC 3.1345(a),
13 failed to quote the text of the discovery requests and responses at issue as required in CRC
14 3.1345(b), and disregarded the rule in CRC 3.1345(d) that “[a] motion concerning [inter alia]
15 inspection demands . . . must identify the . . . demands . . . by set and number.” (emphasis
16 added). Indeed, through the 9 pages of the supporting brief that pertain to Mr. Kludt, Plaintiffs do
17 not identify even a single discovery request that is implicated by their arguments. Mem. at 4-13.
18 Instead, they rely solely on Mr. Vierra’s repeated averment that the documents he has in mind are
19 “indisputably relevant.” See Mem. at 9, 10, 12, 17.
20 But the most basic oversight of all is that Mr. Vierra failed to heed—or given that he is
21 apparently unsupervised, perhaps was never instructed on—a fundamental piece of practice
22 advice that should be given to every young lawyer: “Read the Local Rules.” Had he done so,
23 Plaintiffs’ counsel would have seen Local Rule 3.700(a), which provides that “no party may
24 move to compel discovery or file any other discovery motion until the parties have had an
25 Informal Discovery Conference with the Court.” (emphasis added). Beyond the fact that Mr.
26 Vierra’s attempts to meet and confer with the undersigned were woefully incomplete under the
27 “reasonable and good faith attempt at an informal resolution” standard of CCP § 2016.040, infra
28 at 3, Plaintiffs failed entirely to try to resolve these issues through an IDC.
KLUDT OPP. TO PLAINTIFFS’ MOT. TO
-1- COMPEL AND FOR SANCTIONS
CASE NO. 22-CIV-01148
1 By jumping the gun with his hyper-aggressive conduct, Plaintiffs’ counsel has caused Mr.
2 Kludt to incur $2,850 in attorneys’ fees to review Plaintiffs’ motion and draft this short response.
3 Poe Decl. ¶ 6. It is unlikely that anything short of a monetary sanction will curb Mr. Vierra’s
4 hyper-aggressive and unsupervised conduct.
5 II. FACTUAL BACKGROUND
6 A. Plaintiffs’ Discovery Requests and Contents of Plaintiffs’ Motion
7 To date in this small real-estate investment matter—which has not even had an initial
8 CMC—Plaintiffs have abused Mr. Kludt with six rounds of discovery, and have served the two
9 other groups of defendants (the Bragg/SVRV group and the Davis/Paramont group) with similar
10 numbers. Decl. of Mark Poe ¶ 3. In email correspondence after being upset with Defendants’
11 discovery responses, Mr. Vierra has repeatedly threatened defendants (including sometimes their
12 lawyers) with “sanctions” for not doing what he wants. Poe Decl. ¶ 2 (itemizing Mr. Vierra’s
13 threats by date).
14 In the instant motion, Plaintiffs spend nine pages haranguing Mr. Kludt’s discovery
15 compliance (Mem. at 4-13), without identifying even a single discovery request that is implicated
16 by the diatribe. Nor do they mention that to date Mr. Kludt has produced 888 emails (with
17 attachments) spanning 5,412 pages from three separate email accounts, and has shared an untold
18 number of documents and pages with Plaintiffs’ counsel through providing him direct access to
19 various Google Drive locations. Poe Decl. ¶ 4. Even then, Plaintiffs do not identify any
20 particular document or category of documents that they believe is responsive to any particular
21 request. Mem. at 4-13. Instead, the entire substance of Plaintiffs’ request directed at Kludt
22 appears under the heading “Request for Sanctions,” and commands:
23 Kludt should be compelled to provide his legal counsel, Poe, direct access to each
of his devices, accounts, and applications that may contain documents or
24
communications relevant to this litigation, including without limitation his cell
25 phone and computers; Google Drive, Box, and Dropbox accounts; and
k@realsv.com, kurtm007@me.com, kurtm007icloud@gmail.com, and
26 k7kurt1984@gmail.com email accounts.
27 Mem. at 17. It then commands that “Poe should review these materials and produce all relevant,
28 non-privileged documents or communications to Plaintiffs within 30 days.” Id. at 17-18. As
KLUDT OPP. TO PLAINTIFFS’ MOT. TO
-2- COMPEL AND FOR SANCTIONS
CASE NO. 22-CIV-01148
1 noted, this demand wholly disregards CRC 3.1345(a)—one cannot simply demand the production
2 of “all relevant documents.” If that could be done, all discovery in civil litigation could be
3 reduced to a single demand: “Produce all relevant documents within 30 days.” That is just not
4 how discovery works. And despite his relative youth and inexperience, Plaintiffs’ counsel should
5 know that, and can have no “substantial justification” for thinking otherwise.
6 B. Plaintiffs’ Failure to Meet and Confer
7 Beyond Plaintiffs’ failure to heed Local Rule 3.700’s requirement to proceed through an
8 IDC prior to bringing “any discovery motion,” Plaintiffs egregiously failed to meet and confer
9 with respect to the relief they seek in this motion. Nowhere in their counsel’s eight-page
10 declaration, or in any of the 252-pages of exhibits, can Plaintiffs point to any correspondence or
11 other communication in which they asked the undersigned to have Mr. Kludt “provide his legal
12 counsel, Poe, direct access to each of his devices, accounts, and applications that may contain
13 documents or communications relevant to this litigation, including without limitation . . . .” Yet
14 that is the only relief they seek in this motion. Mem. at 17. Nor can they identify any
15 communication in which Mr. Vierra asked Mr. Poe to review all of that material and produce
16 every “relevant” document within 30 days. Mem. at 17-18.
17 Even if a litigant could ask for different relief in a discovery motion than it had sought in
18 meet-and-confer communications, the communications attached to Plaintiffs’ declaration nowhere
19 indicate that Plaintiffs and the undersigned had reached an impasse such that Plaintiffs could be
20 thought to have exhausted their efforts at the “informal resolution” required by CCP § 2016.040
21 and CCP § 2023.010. The most recent correspondence between the undersigned and Mr. Vierra
22 among the exhibits is an August 11 exchange in which Mr. Vierra raised a number of complaints
23 about Mr. Kludt’s production, and the undersigned responded that “for the issues specific to
24 [Kludt], I’ll have to confer with him,” and proposed that he “prepare and served amended
25 responses to [other] RFPs.” See Vierra Decl. Ex. 13. Nowhere in Mr. Vierra’s very long email
26 on that date did he request a further discovery conference, nor did he thereafter make any
27 response to the undersigned’s reply. Instead, he rushed to court, filing this massive motion just
28 days later, on August 23.
KLUDT OPP. TO PLAINTIFFS’ MOT. TO
-3- COMPEL AND FOR SANCTIONS
CASE NO. 22-CIV-01148
1 III. ARGUMENT
2 A. The Motion Should be Denied for Failure to Comply with Local Rule 3.700.
3 Local Rule 3.700(a) provides that “no party may move to compel discovery or file any
4 other discovery motion until the parties have had an Informal Discovery Conference with the
5 Court.” It further provides that “Counsel must have exhausted all meet and confer obligations
6 before the Informal Discovery Conference.” As shown in the preceding section, Plaintiffs have
7 not even exhausted their meet and confer obligations to entitle them to request an IDC, let alone
8 did they proceed through an IDC before filing this motion. That is an entirely sufficient basis to
9 deny Plaintiffs’ motion.
10 B. Plaintiffs Should Be Sanctioned for Their Misuse of the Discovery Process.
11 Plaintiffs should face a monetary sanction for wasting the Court’s time (and Mr. Kludt’s
12 attorneys’ fees) in filing this baseless motion. It is undoubtedly a “misuse of the discovery
13 process” to: (1) file a discovery motion in violation of Local Rule 3.700 by not first requesting an
14 IDC, (2) disregard the format requirements set forth in CRC 3.1345, all while (3) failing to have
15 first completed a “reasonable and good faith attempt at an informal resolution.” CCP § 2016.040.
16 Importantly, the undersigned has already attempted to provide Mr. Vierra with the advice
17 on professionalism that he is apparently not receiving at his current workplace. On August 5,
18 2022, Mr. Vierra launched a multi-page tirade against the undersigned and counsel for the
19 Bragg/SVRV defendants, asserting that the undersigned had made a “completely frivolous”
20 objection to one of Plaintiffs’ document requests. See Poe Decl. ¶ 5, Ex. A. In that request,
21 Plaintiffs had demanded production of all documents exchanged between “You and any other
22 Defendant in this Action relating to this litigation.” Id. The undersigned had partially objected
23 on work-product grounds. Id. In his tirade, Mr. Vierra proclaimed that “[t]he communications
24 Plaintiffs have requested do not involve any attorneys and thus do not implicate the work product
25 doctrine.” Id. at 2. In response, Mr. Poe pointed out that Mr. Vierra had specifically defined the
26 terms “You” and “Defendant” to include those parties’ attorneys, and calmly advised Mr. Vierra:
27 As I intimated in another email, I think you’ll find (in this case and others) that
you’ll make more headway if you turn it down a notch, and not be so quick to jump
28
KLUDT OPP. TO PLAINTIFFS’ MOT. TO
-4- COMPEL AND FOR SANCTIONS
CASE NO. 22-CIV-01148
1 to conclusions and threaten sanctions all the time. For example, I could have waited
until you filed your motion to point out the above [i.e., that Plaintiffs had demanded
2 attorney communications], and then sought sanctions against you for wasting
3 everyone’s time with an argument that is obviously wrong under the very language
you drafted. But I’ve found over a long career that that’s not really a good way to
4 do litigation, and courts aren’t crazy about it either.
5 Id. at 1.
6 Unfortunately, Mr. Vierra has rejected that kindly-offered advice, and so has continued on
7 the warpath ever since. Because he is apparently unsupervised by any other more experienced
8 attorney, and because he has demonstrated that he won’t listen to guidance from opposing
9 counsel, the only prospect for curbing his combative impulses is to have his client face the
10 sanctions compelled by CCP § 2023.020, which provides that “the court shall impose a monetary
11 sanction ordering that any party or attorney who fails to confer as required pay the reasonable
12 expenses, including attorney’s fees, incurred by anyone as a result of that conduct.”
13 As set forth in the accompanying Poe Declaration, Plaintiffs’ filing of this baseless motion
14 necessitated the undersigned to spend 5.7 hours reviewing the motion and drafting this short
15 opposition. Plaintiffs explain that in 2021 “the national average billing rates for legal partners . . .
16 were $729 [per hour].” Mem. at 6. As the family member of a repeat client, the undersigned bills
17 Mr. Kludt just $500 per hour. Poe Decl. ¶ 6. Accordingly, Plaintiffs should be ordered to
18 reimburse Kludt $2,850 for the fees that they unjustifiably imposed upon him, and which could
19 have been avoided entirely had Plaintiffs’ counsel (1) met and conferred to request the relief
20 demanded in Plaintiffs’ motion, (2) reviewed the California Rules of Cout as to the format of
21 discovery motions, and (3) reviewed this Court’s Local Rules that require an IDC prior to filing.
22 The foregoing is undoubtedly a “misuse of the discovery process” in the form of “making
23 . . . unsuccessfully and without substantial justification, a motion to compel.” CCP §
24 2023.010(h). There can be no “substantial justification” for not reading either the governing
25 California Rules of Court or this Court’s Local Rules. Accordingly, should the Court not order
26 fee-shifting sanctions under CCP § 2023.020, it should issue an OSC under CCP § 2023.030 as to
27 why Plaintiffs, their counsel, or both, should not be ordered to “pay the reasonable expenses,
28 including attorneys’ fees” to Mr. Kludt, who is the victim of their serial misuses of the discovery
KLUDT OPP. TO PLAINTIFFS’ MOT. TO
-5- COMPEL AND FOR SANCTIONS
CASE NO. 22-CIV-01148
1 process.
2 CONCLUSION
3 Plaintiffs’ motion should be denied, and Plaintiffs should be ordered to reimburse Mr.
4 Kludt for the $2,850 in fees he incurred in responding to the motion, pursuant to § CCP 2023.020.
5 Alternatively the Court should issue an OSC under § CCP 2023.030(a) as to why Plaintiffs and/or
6 their counsel should not face the same sanctions for their misuse of the discovery process in filing
7 this motion.
8
9 Dated: September 2, 2022 GAW | POE LLP
10
11 By:
Mark Poe
12
Attorneys for Defendant
13 KURTIS KLUDT
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KLUDT OPP. TO PLAINTIFFS’ MOT. TO
-6- COMPEL AND FOR SANCTIONS
CASE NO. 22-CIV-01148
1 PROOF OF SERVICE
2 I am over 18 years of age and not a party to the action. I hereby certify that on the date
3 below, I served the following document(s) on the parties in the above-entitled action:
4
KURTIS KLUDT’S OPPOSITION TO PLAINTIFFS’ MOTION TO COMPEL AND
5 FOR DISCOVERY SANCTIONS
6
Via E-mail: The above-referenced documents were e-mailed to the following persons at
7
the following e-mail addresses:
8
Collin J. Vierra
9
cvierra@eimerstahl.com
10 Counsel for Plaintiffs
11 Jessica Chong
jchong@spencerfane.com
12 Brian Zimmerman
13 bzimmerman@spencerfane.com
Counsel for Defendants Gregory J. Davis, Paramont Woodside, LLC, and Paramont
14 Capital, LLC
15 Ryan Van Steenis
rvansteenis@ajamie.com
16 Counsel for Defendant David M. Bragg
17
I declare under penalty of perjury under the laws of the State of California that the
18
foregoing is a true and correct statement.
19
20
Dated: September 2, 2022
21
Mark Poe
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KLUDT OPP. TO PLAINTIFFS’ MOT. TO
COMPEL AND FOR SANCTIONS
CASE NO. 22-CIV-01148
Preview
1 MARK POE (S.B. #223714) mpoe@gawpoe.com 2 RANDOLPH GAW (S.B. #223718) rgaw@gawpoe.com 3 GAW | POE LLP 4 Embarcadero, Suite 1400 4 San Francisco, CA 94111 Telephone: (415) 766-7451 5 Facsimile: (415) 737-0642 6 Attorneys for Defendant KURTIS KLUDT 7 8 9 SUPERIOR COURT FOR THE STATE OF CALIFORNIA 10 COUNTY OF SAN MATEO 11 12 Robert Arntsen; Mary Lee; Arntsen Case No.: 22-CIV-01148 Family Partnership, LP; and Brian 13 Christopher Dunn Custodianship; KURTIS KLUDT’S OPPOSITION TO PLAINTIFFS’ MOTION TO COMPEL 14 Plaintiffs, AND FOR DISCOVERY SANCTIONS 15 v. Hr’g Date: September 16, 2022 Time: 9:00 a.m. 16 David M. Bragg; Kurtis Stuart Kludt; Judge: Hon. Robert D. Foiles Silicon Valley Real Ventures LLC; Dept: 21 17 SVRV 385 Moore, LLC; SVRV 387 Date Filed: Mar. 15, 2022 Moore, LLC; Gregory J. Davis; Paramont Trial Date: None set 18 Woodside, LLC; and Paramont Capital, LLC, 19 Defendants. 20 21 22 23 24 25 26 27 28 KLUDT OPP. TO PLAINTIFFS’ MOT. TO COMPEL AND FOR SANCTIONS CASE NO. 22-CIV-01148 1 I. INTRODUCTION 2 The plaintiffs in this matter are represented by a hyper-aggressive young lawyer who ends 3 most of his emails with a threat that he will seek sanctions if he doesn’t immediately get his way. 4 See Decl. of Mark Poe ¶ 2. In his aggression, Mr. Vierra has now filed a lengthy motion to 5 compel, accompanied by an 8-page declaration and a 252-page compendium of exhibits. 6 Plaintiffs’ mammoth filing is topped off with a demand that the Court sanction Defendant Kurtis 7 Kludt in the amount of $7,786.68, for not doing exactly what Mr. Vierra demands, exactly when 8 he wants it done. 9 In his righteous zeal, Plaintiffs’ counsel has violated a number of very basic requirements 10 for how one is to bring a motion to compel. The motion and supporting brief wholly disregard 11 the requirements of CRC 3.1345, which has the clear title “Format of discovery motions.” Mr. 12 Vierra and his client have failed to provide the “separate statement” required by CRC 3.1345(a), 13 failed to quote the text of the discovery requests and responses at issue as required in CRC 14 3.1345(b), and disregarded the rule in CRC 3.1345(d) that “[a] motion concerning [inter alia] 15 inspection demands . . . must identify the . . . demands . . . by set and number.” (emphasis 16 added). Indeed, through the 9 pages of the supporting brief that pertain to Mr. Kludt, Plaintiffs do 17 not identify even a single discovery request that is implicated by their arguments. Mem. at 4-13. 18 Instead, they rely solely on Mr. Vierra’s repeated averment that the documents he has in mind are 19 “indisputably relevant.” See Mem. at 9, 10, 12, 17. 20 But the most basic oversight of all is that Mr. Vierra failed to heed—or given that he is 21 apparently unsupervised, perhaps was never instructed on—a fundamental piece of practice 22 advice that should be given to every young lawyer: “Read the Local Rules.” Had he done so, 23 Plaintiffs’ counsel would have seen Local Rule 3.700(a), which provides that “no party may 24 move to compel discovery or file any other discovery motion until the parties have had an 25 Informal Discovery Conference with the Court.” (emphasis added). Beyond the fact that Mr. 26 Vierra’s attempts to meet and confer with the undersigned were woefully incomplete under the 27 “reasonable and good faith attempt at an informal resolution” standard of CCP § 2016.040, infra 28 at 3, Plaintiffs failed entirely to try to resolve these issues through an IDC. KLUDT OPP. TO PLAINTIFFS’ MOT. TO -1- COMPEL AND FOR SANCTIONS CASE NO. 22-CIV-01148 1 By jumping the gun with his hyper-aggressive conduct, Plaintiffs’ counsel has caused Mr. 2 Kludt to incur $2,850 in attorneys’ fees to review Plaintiffs’ motion and draft this short response. 3 Poe Decl. ¶ 6. It is unlikely that anything short of a monetary sanction will curb Mr. Vierra’s 4 hyper-aggressive and unsupervised conduct. 5 II. FACTUAL BACKGROUND 6 A. Plaintiffs’ Discovery Requests and Contents of Plaintiffs’ Motion 7 To date in this small real-estate investment matter—which has not even had an initial 8 CMC—Plaintiffs have abused Mr. Kludt with six rounds of discovery, and have served the two 9 other groups of defendants (the Bragg/SVRV group and the Davis/Paramont group) with similar 10 numbers. Decl. of Mark Poe ¶ 3. In email correspondence after being upset with Defendants’ 11 discovery responses, Mr. Vierra has repeatedly threatened defendants (including sometimes their 12 lawyers) with “sanctions” for not doing what he wants. Poe Decl. ¶ 2 (itemizing Mr. Vierra’s 13 threats by date). 14 In the instant motion, Plaintiffs spend nine pages haranguing Mr. Kludt’s discovery 15 compliance (Mem. at 4-13), without identifying even a single discovery request that is implicated 16 by the diatribe. Nor do they mention that to date Mr. Kludt has produced 888 emails (with 17 attachments) spanning 5,412 pages from three separate email accounts, and has shared an untold 18 number of documents and pages with Plaintiffs’ counsel through providing him direct access to 19 various Google Drive locations. Poe Decl. ¶ 4. Even then, Plaintiffs do not identify any 20 particular document or category of documents that they believe is responsive to any particular 21 request. Mem. at 4-13. Instead, the entire substance of Plaintiffs’ request directed at Kludt 22 appears under the heading “Request for Sanctions,” and commands: 23 Kludt should be compelled to provide his legal counsel, Poe, direct access to each of his devices, accounts, and applications that may contain documents or 24 communications relevant to this litigation, including without limitation his cell 25 phone and computers; Google Drive, Box, and Dropbox accounts; and k@realsv.com, kurtm007@me.com, kurtm007icloud@gmail.com, and 26 k7kurt1984@gmail.com email accounts. 27 Mem. at 17. It then commands that “Poe should review these materials and produce all relevant, 28 non-privileged documents or communications to Plaintiffs within 30 days.” Id. at 17-18. As KLUDT OPP. TO PLAINTIFFS’ MOT. TO -2- COMPEL AND FOR SANCTIONS CASE NO. 22-CIV-01148 1 noted, this demand wholly disregards CRC 3.1345(a)—one cannot simply demand the production 2 of “all relevant documents.” If that could be done, all discovery in civil litigation could be 3 reduced to a single demand: “Produce all relevant documents within 30 days.” That is just not 4 how discovery works. And despite his relative youth and inexperience, Plaintiffs’ counsel should 5 know that, and can have no “substantial justification” for thinking otherwise. 6 B. Plaintiffs’ Failure to Meet and Confer 7 Beyond Plaintiffs’ failure to heed Local Rule 3.700’s requirement to proceed through an 8 IDC prior to bringing “any discovery motion,” Plaintiffs egregiously failed to meet and confer 9 with respect to the relief they seek in this motion. Nowhere in their counsel’s eight-page 10 declaration, or in any of the 252-pages of exhibits, can Plaintiffs point to any correspondence or 11 other communication in which they asked the undersigned to have Mr. Kludt “provide his legal 12 counsel, Poe, direct access to each of his devices, accounts, and applications that may contain 13 documents or communications relevant to this litigation, including without limitation . . . .” Yet 14 that is the only relief they seek in this motion. Mem. at 17. Nor can they identify any 15 communication in which Mr. Vierra asked Mr. Poe to review all of that material and produce 16 every “relevant” document within 30 days. Mem. at 17-18. 17 Even if a litigant could ask for different relief in a discovery motion than it had sought in 18 meet-and-confer communications, the communications attached to Plaintiffs’ declaration nowhere 19 indicate that Plaintiffs and the undersigned had reached an impasse such that Plaintiffs could be 20 thought to have exhausted their efforts at the “informal resolution” required by CCP § 2016.040 21 and CCP § 2023.010. The most recent correspondence between the undersigned and Mr. Vierra 22 among the exhibits is an August 11 exchange in which Mr. Vierra raised a number of complaints 23 about Mr. Kludt’s production, and the undersigned responded that “for the issues specific to 24 [Kludt], I’ll have to confer with him,” and proposed that he “prepare and served amended 25 responses to [other] RFPs.” See Vierra Decl. Ex. 13. Nowhere in Mr. Vierra’s very long email 26 on that date did he request a further discovery conference, nor did he thereafter make any 27 response to the undersigned’s reply. Instead, he rushed to court, filing this massive motion just 28 days later, on August 23. KLUDT OPP. TO PLAINTIFFS’ MOT. TO -3- COMPEL AND FOR SANCTIONS CASE NO. 22-CIV-01148 1 III. ARGUMENT 2 A. The Motion Should be Denied for Failure to Comply with Local Rule 3.700. 3 Local Rule 3.700(a) provides that “no party may move to compel discovery or file any 4 other discovery motion until the parties have had an Informal Discovery Conference with the 5 Court.” It further provides that “Counsel must have exhausted all meet and confer obligations 6 before the Informal Discovery Conference.” As shown in the preceding section, Plaintiffs have 7 not even exhausted their meet and confer obligations to entitle them to request an IDC, let alone 8 did they proceed through an IDC before filing this motion. That is an entirely sufficient basis to 9 deny Plaintiffs’ motion. 10 B. Plaintiffs Should Be Sanctioned for Their Misuse of the Discovery Process. 11 Plaintiffs should face a monetary sanction for wasting the Court’s time (and Mr. Kludt’s 12 attorneys’ fees) in filing this baseless motion. It is undoubtedly a “misuse of the discovery 13 process” to: (1) file a discovery motion in violation of Local Rule 3.700 by not first requesting an 14 IDC, (2) disregard the format requirements set forth in CRC 3.1345, all while (3) failing to have 15 first completed a “reasonable and good faith attempt at an informal resolution.” CCP § 2016.040. 16 Importantly, the undersigned has already attempted to provide Mr. Vierra with the advice 17 on professionalism that he is apparently not receiving at his current workplace. On August 5, 18 2022, Mr. Vierra launched a multi-page tirade against the undersigned and counsel for the 19 Bragg/SVRV defendants, asserting that the undersigned had made a “completely frivolous” 20 objection to one of Plaintiffs’ document requests. See Poe Decl. ¶ 5, Ex. A. In that request, 21 Plaintiffs had demanded production of all documents exchanged between “You and any other 22 Defendant in this Action relating to this litigation.” Id. The undersigned had partially objected 23 on work-product grounds. Id. In his tirade, Mr. Vierra proclaimed that “[t]he communications 24 Plaintiffs have requested do not involve any attorneys and thus do not implicate the work product 25 doctrine.” Id. at 2. In response, Mr. Poe pointed out that Mr. Vierra had specifically defined the 26 terms “You” and “Defendant” to include those parties’ attorneys, and calmly advised Mr. Vierra: 27 As I intimated in another email, I think you’ll find (in this case and others) that you’ll make more headway if you turn it down a notch, and not be so quick to jump 28 KLUDT OPP. TO PLAINTIFFS’ MOT. TO -4- COMPEL AND FOR SANCTIONS CASE NO. 22-CIV-01148 1 to conclusions and threaten sanctions all the time. For example, I could have waited until you filed your motion to point out the above [i.e., that Plaintiffs had demanded 2 attorney communications], and then sought sanctions against you for wasting 3 everyone’s time with an argument that is obviously wrong under the very language you drafted. But I’ve found over a long career that that’s not really a good way to 4 do litigation, and courts aren’t crazy about it either. 5 Id. at 1. 6 Unfortunately, Mr. Vierra has rejected that kindly-offered advice, and so has continued on 7 the warpath ever since. Because he is apparently unsupervised by any other more experienced 8 attorney, and because he has demonstrated that he won’t listen to guidance from opposing 9 counsel, the only prospect for curbing his combative impulses is to have his client face the 10 sanctions compelled by CCP § 2023.020, which provides that “the court shall impose a monetary 11 sanction ordering that any party or attorney who fails to confer as required pay the reasonable 12 expenses, including attorney’s fees, incurred by anyone as a result of that conduct.” 13 As set forth in the accompanying Poe Declaration, Plaintiffs’ filing of this baseless motion 14 necessitated the undersigned to spend 5.7 hours reviewing the motion and drafting this short 15 opposition. Plaintiffs explain that in 2021 “the national average billing rates for legal partners . . . 16 were $729 [per hour].” Mem. at 6. As the family member of a repeat client, the undersigned bills 17 Mr. Kludt just $500 per hour. Poe Decl. ¶ 6. Accordingly, Plaintiffs should be ordered to 18 reimburse Kludt $2,850 for the fees that they unjustifiably imposed upon him, and which could 19 have been avoided entirely had Plaintiffs’ counsel (1) met and conferred to request the relief 20 demanded in Plaintiffs’ motion, (2) reviewed the California Rules of Cout as to the format of 21 discovery motions, and (3) reviewed this Court’s Local Rules that require an IDC prior to filing. 22 The foregoing is undoubtedly a “misuse of the discovery process” in the form of “making 23 . . . unsuccessfully and without substantial justification, a motion to compel.” CCP § 24 2023.010(h). There can be no “substantial justification” for not reading either the governing 25 California Rules of Court or this Court’s Local Rules. Accordingly, should the Court not order 26 fee-shifting sanctions under CCP § 2023.020, it should issue an OSC under CCP § 2023.030 as to 27 why Plaintiffs, their counsel, or both, should not be ordered to “pay the reasonable expenses, 28 including attorneys’ fees” to Mr. Kludt, who is the victim of their serial misuses of the discovery KLUDT OPP. TO PLAINTIFFS’ MOT. TO -5- COMPEL AND FOR SANCTIONS CASE NO. 22-CIV-01148 1 process. 2 CONCLUSION 3 Plaintiffs’ motion should be denied, and Plaintiffs should be ordered to reimburse Mr. 4 Kludt for the $2,850 in fees he incurred in responding to the motion, pursuant to § CCP 2023.020. 5 Alternatively the Court should issue an OSC under § CCP 2023.030(a) as to why Plaintiffs and/or 6 their counsel should not face the same sanctions for their misuse of the discovery process in filing 7 this motion. 8 9 Dated: September 2, 2022 GAW | POE LLP 10 11 By: Mark Poe 12 Attorneys for Defendant 13 KURTIS KLUDT 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 KLUDT OPP. TO PLAINTIFFS’ MOT. TO -6- COMPEL AND FOR SANCTIONS CASE NO. 22-CIV-01148 1 PROOF OF SERVICE 2 I am over 18 years of age and not a party to the action. I hereby certify that on the date 3 below, I served the following document(s) on the parties in the above-entitled action: 4 KURTIS KLUDT’S OPPOSITION TO PLAINTIFFS’ MOTION TO COMPEL AND 5 FOR DISCOVERY SANCTIONS 6 Via E-mail: The above-referenced documents were e-mailed to the following persons at 7 the following e-mail addresses: 8 Collin J. Vierra 9 cvierra@eimerstahl.com 10 Counsel for Plaintiffs 11 Jessica Chong jchong@spencerfane.com 12 Brian Zimmerman 13 bzimmerman@spencerfane.com Counsel for Defendants Gregory J. Davis, Paramont Woodside, LLC, and Paramont 14 Capital, LLC 15 Ryan Van Steenis rvansteenis@ajamie.com 16 Counsel for Defendant David M. Bragg 17 I declare under penalty of perjury under the laws of the State of California that the 18 foregoing is a true and correct statement. 19 20 Dated: September 2, 2022 21 Mark Poe 22 23 24 25 26 27 28 KLUDT OPP. TO PLAINTIFFS’ MOT. TO COMPEL AND FOR SANCTIONS CASE NO. 22-CIV-01148