Motion-Secondary: GAJANAN INC., A CALIFORNIA CORPORATION ET AL VS. CITY AND COUNTY OF SAN FRANCISCO ET AL

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DENNIS J. HERRERA, State Bar #139669
City Attorney

JEAN H. ALEXANDER, State Bar #53676
Chief Tax Deputy

THOMAS S. LAKRITZ, State Bar #161234
SCOTT M. REIBER, State Bar #245418
Deputy City Attorneys

Fox Plaza

1390 Market Street, Sixth Floor

San Francisco, California 94102-5408

Telephone: (415) 554-3963
Facsimile: (415) 554-3837
E-Mail: tom.lakritz@sfgov.org
Attorneys for Defendants

CITY AND COUNTY OF SAN FRANCISCO
and JOSE CISNEROS

ELECTRONICALLY

FILED

Superior Court of California,
County of San Francisco

04/14/2017

Clerk of the Court
BY:SANDRA SCHIRO

Deputy Clerk

SUPERIOR COURT OF THE STATE OF CALIFORNIA

COUNTY OF SAN FRANCISCO
UNLIMITED JURISDICTION

GAJANAN INC., a California Corporation,
and ENGAGE WITH SF HOSPITALITY
LLC, a California Limited Liability Company,

Plaintiffs,

vs.
CITY AND COUNTY OF SAN
FRANCISCO; JOSE CISNEROS,
TREASURER AND TAX COLLECTOR OF
THE CITY AND COUNTY OF SAN
FRANCISCO, and DOES 1 through 50,

Defendants.

Case No.CGC-16-554309
DISCOVERY

OPPOSITION TO PLAINTIFFS’ MOTION
REQUESTING RELIEF FROM WAIVER

Hearing Date: April 27, 2017
Hearing Judge: Hon. Harold E. Kahn
Time: 9:00 a.m.

Place: Dept. 302

Date Action Filed:
Trial Date:

Sept. 16, 2016
August 21, 2017

INTRODUCTION

Plaintiffs seek relief from the waiver of objections to their written responses to form and

special interrogatories, requests for admission and requests for production of documents, which

occurred as a result of their failure to serve timely written responses. While Plaintiffs subsequently

served untimely written responses, they have failed to establish that their default was the result

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OPPOSITION TO MOTION REQUESING RELIEF FROM WAIVER ; CASE NO. CGC-16-554309

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mistake, inadvertence, or excusable neglect, as required by the Code of Civil Procedure. (See Code
Civ. Proc. §§ 2030.290(a)(2) [interrogatories], 2031.300(a)(2) [requests for production of documents],
2033.280(a)(2) [requests for admission].) Plaintiffs’ only argument is that their counsel “honestly
believed Defendant agreed to [an] extension.” (Plaintiffs’ Memorandum of Points and Authorities in
Support of Motion Requesting Relief from Waiver [“MPA”] at p.2.) Plaintiffs did not request an
extension, and the City Attorney’s Office did not agree to extend the time to serve written responses to
form and special interrogatories, requests for admission and requests for production of documents.
But even if Plaintiffs’ claim were true, which it is not, such a “belief” is insufficient to establish
mistake, inadvertence, or excusable neglect.

Accordingly, the Court should deny Plaintiffs’ motion.

BACKGROUND

On January 9, 2017, the City Attorney’s Office served Plaintiffs Gajanan Inc. (“Gajanan”) and
Engage with SF Hospitality LLC (“Engage”) (collectively, “Plaintiffs”) by mail with Request For
Admission, Set One; Request for Production of Documents, Set One; Special Interrogatories, Set One;
and Form Interrogatories, Set One. (Declaration of Thomas S. Lakritz in Support of Defendants?
Opposition to Plaintiffs’ Motion Requesting Relief From Waiver [‘Lakritz Decl.”], § 2.) Pursuant to
the Code of Civil Procedure, Plaintiffs’ responses to Request For Admission, Set One; Request for
Production of Documents, Set One; Special Interrogatories, Set One; and Form Interrogatories, Set
One were due on February 14, 2017. (Lakritz Decl., § 3.)

On February 10, 2017, the City Attorney’s Office agreed to an extension to February 16, 2017
for all discovery served on Plaintiffs. (Lakritz Decl., § 4, Exh. A.)

"On February 16, 2017, Plaintiffs’ counsel sent the City Attorney’s Office an email providing
an option to the City Attorney’s Office regarding the production of documents. (Lakritz Decl., { 5.)
Plaintiffs’ counsel offered to provide un-Bates stamped documents on February 16th, or Bates-
stamped documents on the next day, February 17th. (/bid.) The City’s counsel informed Plaintiffs”
counsel that the City Attorney’s Office preferred Bates-stamped documents. (Jbid.) The City

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Attorney’s Office confirmed the conversation in an email. (Lakritz Decl., 4 5, Exh. B.) Plaintiffs’
counsel did not take exception with the City’s email.

At no time on February 16, 2017, did Plaintiffs’ counsel request another extension of time to
serve written responses to any of the discovery responses served on January 9, 2017. (Lakritz Decl., {
6.) The City Attomey’s Office did not grant an extension of time on any written discovery response.
(Ibid)

On February 17, 2017, Plaintiffs served written responses to the City’s Request for Production
of Documents, Set One; Special Interrogatories, Set One; Form Interrogatories, Set One; and Request

For Admission, Set One. (Lakritz Decl., { 7.)

ARGUMENT

In order to establish relief from the effects of failure to serve timely written responses to
interrogatories, requests for production of documents, and requests for admission, a party must satisfy
both of the following conditions: (1) the party subsequently served a written response that is in
substantial compliance with the Code of Civil Procedure!, and (2) the party’s failure to serve timely
responses was the result of mistake, inadvertence, or excusable neglect. (See Code Civ. Proc. §§
2030.290(a) [interrogatories], 2031.300(a) [requests for production of documents], 2033.280(a)
[requests for admission].) Counsel’s mistaken belief of the requirements of the Code of Civil
Procedure regarding discovery is not a valid ground for relief from waiver. (See City of Fresno v.
Superior Court (Green), 205 Cal.App.3d 1459, 1467 (1988). Indeed, if not fully understanding the
requirements of regarding discovery constituted excusable neglect, the Code of Civil Procedure would
be meaningless. (/bid.)

Here, Plaintiffs’ counsel claims that the City Attorney’s Office extended the time to serve
written responses to all discovery. (Declaration of Edward Beeby in Support of Plaintiffs’ Motion

Requesting Relief From Waiver [‘Beeby Decl.”], 4 13.) The City Attorney Office denies that

' The City contends that Plaintiffs’ written responses were not in substantial compliance with
the Code of Civil Procedure. The deficiencies and inadequacies of Plaintiffs’ written responses are the
subject of the City’s motions to compel also on calendar for April 27, 2017.

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OPPOSITION TO MOTION REQUESING RELIEF FROM WAIVER ; CASE NO. CGC-16-554309 n:\taxlit\li2016\170283\011 83922.docxPlaintiffs’ counsel requested such an extension and that the City Attorney’s Office granted such an
extension. (Lakritz Decl., § 6.) The only discussion (orally or in writing) addressed Plaintiffs’
document production, not written responses to interrogatories, requests for production of documents,
or requests for admission. Mr. Beeby acknowledges that when he spoke with the City’s counsel on
February 16, 2017, he repeated what he asked for in his email. (Beeby Decl., 410.) Mr. Beeby’s
email, however, did not request an extension of time to serve written responses, it only addressed
Plaintiffs’ document production. (Lakritz Decl., Exh. B.)

Even if Mr. Beeby “honestly believed” that the City Attorney’s Office had orally? agreed to an
extension of time, such a belief was insufficient to extend the time to serve written responses to
interrogatories, request for production of documents, and requests for admission. Although parties can
informally agree to extend the time to serve written responses, the agreement “shall be confirmed in a
writing that specifies the extended date for service of a responses.” (See Code Civ. Proc. §§
2030.270(b) [interrogatories], 2031.270(b) [requests for production of documents], 2033.260(b)
[requests for admission].) There is no written confirmation on an oral agreement extending the time
for Plaintiffs to served written responses to discovery. The only written confirmation is the City’s
agreement to accept Plaintiffs’ document production on Friday, February 17,2017. (Lakritz Decl.,
Exh. B.) Plaintiffs’ counsel failed to comply with the simple and undebatable requirements of the
Code of Civil Procedure. Therefore, Plaintiffs’ written responses were untimely. Counsel’s mistaken
belief that he had obtained an extension of time to serve written responses, does not establish mistake,
inadvertence, or excusable neglect. (See City of Fresno, supra, 205 Cal.App.3d at p. 1467.)

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? Plaintiffs’ counsel included a paragraph in his declaration discussing the speech pattern of the
City’s counsel. (Beeby Decl., { 16.) Given that oral agreements to extend the time to serve written
responses to discovery are insufficient to actually extend the deadline, it is unclear why such a
commentary was included. At best, describing the speech pattern of an attorney in a court filing is
gratuitous and irrelevant. At worst, it is indicative of animus and bias. Whatever the motive, it
violates the Court’s local rules. (See San Francisco Superior Court Local Rule 2.6 A [Fairness in Trial
Court Proceedings].)

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CONCLUSION

Plaintiffs’ counsel did not (and cannot) establish mistake, inadvertence, or excusable neglect.

Accordingly, the Court should deny Plaintiffs’ motion seeking relief from waiver.

Dated: April 14, 2017

DENNIS J. HERRERA
City Attorney

JEAN H. ALEXANDER
Chief Tax Deputy
THOMAS S. LAKRITZ
SCOTT M. REIBER.
Deputy City Attorneys

By: /s/ Thomas S. Lakritz
THOMAS S. LAKRITZ

Attorneys for Defendants CITY AND COUNTY OF
SAN FRANCISCO and JOSE CISNEROS

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OPPOSITION TO MOTION REQUESING RELIEF FROM WAIVER ; CASE NO. CGC-16-554309 ns\taxlit\li2016\1 70283\0 11 83922.dooxPROOF OF SERVICE
I, MONICA TREJO, declare as follows:

Iam a citizen of the United States, over the age of eighteen years and not a party to the above-
entitled action. I am employed at the City Attorney’s Office of San Francisco, Fox Plaza Building,
1390 Market Street, Sixth Floor, San Francisco, CA 94102.

On April 14, 2017, I served the following document(s):

OPPOSITION TO PLAINTIFFS’ MOTION REQUESTING RELIEF FROM WAIVER

DECLARATION OF THOMAS S. LAKRITZ IN SUPPORT OF DEFENDANTS’
OPPOSITION TO PLAINTIFFS’ MOTION REQUESTING RELIEF FROM WAIVER

on the following persons at the locations specified:

Amy L. Silverstein

Edward J. Beeby

Silverstein & Pomerantz LLP
12 Gough St., 2nd Fl.

San Francisco, CA 94103
Tel.: 415-593-3500

Fax: 415-593-3501

Attorneys for GAJANAN INC.
ENGAGE WITH SF HOSPITALITY LLC

in the manner indicated below:
Xx BY ELECTRONIC MAIL: Based on a court order or an agreement of the parties to accept electronic
service, I caused the documents to be served electronically through File & ServeXpress in portable document

format ("PDF") Adobe Acrobat.

I declare under penalty of perjury pursuant to the laws of the State of California that the
foregoing is true and correct.

Executed April 14, 2017, at San Francisco, California.

Vary ce Drea)
MONICA TREJO

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OPPOSITION TO MOTION REQUESING RELIEF FROM WAIVER ; CASE NO. CGC-16-554309 n:Mtaxlit\li2016\1 70283\011 83922.docx