Preview
ELECTRONICALLY FILED
Superior Court of California
County of Santa Barbara
Darrel E. Parker, Executive Officer
1 CHORA YOUNG & MANASSERIAN LLP 4/1/2022 7:45 PM
Armen Manasserian (SBN 288199) By: Yuliana Razo, Deputy
2 Cameron H. Totten (SBN 180765)
3
650 Sierra Madre Villa Ave, Suite 304
Pasadena, CA 91107
4 Tel.: (626) 744-1838
Fax: (626) 744-3167
5 Email: cameron@cym.law
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Attorneys for Plaintiff Butler America, LLC
7 SUPERIOR COURT OF CALIFORNIA
8 COUNTY OF SANTA BARBARA – ANACAPA DIVISION
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10 BUTLER AMERICA, LLC, a Delaware Case No. 20CV03877
limited liability company,
11 Assigned to the Hon. Donna D. Geck
Plaintiff,
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PLAINTIFF BUTLER AMERICA, LLC’S
13 v. REPLY TO DEFENDANTS’ OPPOSITION
TO MOTION FOR ORDER
14 UCOMMG, LLC, a Nevada limited liability COMPELLING FURTHER RESPONSES
company; UNIFIED COMMUNICATIONS TO PLAINTIFF’S INTERROGATORIES
15
GROUP, INC., a dissolved Washington (SET ONE)
16 corporation; KENNETH W. NEWBATT,
an individual; BIANCA NEWBATT, an Date: April 8, 2022
17 individual; MITCHELL C. LIPKIN, an Time: 10:00 a.m.
individual; MICHAEL J. BELLAS, an Dept.: 4
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individual; JIMMIE GARRETT BAKER,
19 JR., an individual; WESTELE UTILITY Complaint Filed: November 20, 2020
SOLUTIONS, LLC, a California limited Trial Date: Not Set
20 liability company; and DOES 1 through 50,
inclusive,
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22 Defendants.
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TO THIS HONORABLE COURT, ALL PARTIES AND THEIR ATTORNEYS OF
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RECORD HEREIN:
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Plaintiff Butler America, LLC (“Plaintiff”) hereby submits the following Reply to
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Defendants UCOMMG, LLC and Unified Communications Group, Inc.’s Opposition to
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Plaintiff’s Motion to Compel Further Responses to Plaintiff’s Interrogatories (Set One)
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(“Motion”).
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PLAINTIFF BUTLER AMERICA, LLC’S REPLY TO OPPOSITION TO PLAINTIFF’S MOTION FOR
ORDER COMPELLING FURTHER RESPONSES TO PLAINTIFF’S INTERROGATORIES (SET ONE)
1 MEMORANDUM OF POINTS AND AUTHORITIES
2 I. INTRODUCTION
3 Defendants UCOMMG, LLC (“UCOMMG”) and Unified Communications Group,
4 Inc.’s (“Unified”) (collectively referred to herein as “Defendants”) Opposition to Plaintiff’s
5 Motion for Order Compelling Further Responses to Plaintiff’s Interrogatories, Set One
6 (“Opposition”) focuses primarily on the application of California Code of Civil Procedure
7 Section 2019.210 (“Section 2019.210”) and CUTSA, which are not relevant to Plaintiff’s
8 Motion. On the other hand, notably absent from the Opposition is any explanation, argument or
9 facts as to how the interrogatories, at least in part, do not seek information regarding
10 jurisdiction. Instead, Defendants rely on hyper-technical interpretations of the interrogatories
11 that strain credulity. Moreover, Defendants refuse to state whether responsive information exists
12 or whether this is nothing more than an academic exercise.
13 With regard to Defendants’ objections, throughout the meet and confer process, Plaintiff
14 offered to limit the interrogatories to address Defendants’ concerns. However, consistent with
15 Defendants’ “gotcha” litigation strategy throughout this litigation, Defendants refused to engage
16 in any negotiation to resolve the disputes between the parties. Instead, Defendants chose to
17 produce nothing based on technicalities and disregard the Civil Discovery Act’s requirement
18 that they must respond to the extent possible. Accordingly, for the reasons set forth below and
19 in Plaintiff’s moving papers, Plaintiff’s Motion and request for sanctions should be granted in
20 their entirety, and Defendants’ request for sanctions should be denied.
21 II. SECTION 2019.210 IS NOT APPLICABLE TO PLAINTIFF’S
22 INTERROGATORIES
23 On December 3, 2021, this Court ruled that Plaintiff was entitled to jurisdictional
24 discovery, regardless of Section 2019.210. On February 18, 2022, this Court ruled upon
25 Defendants’ Motion for Terminating Sanctions and alternative Motion for Protective Order
26 denying Plaintiff’s any right to discovery. The Court reiterated that Plaintiff was entitled to
27 jurisdictional discovery for purposes of opposing Defendants’ Motion to Quash Service of
28 Summons. Specifically, the Court stated that
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PLAINTIFF BUTLER AMERICA, LLC’S REPLY TO OPPOSITION TO PLAINTIFF’S MOTION FOR
ORDER COMPELLING FURTHER RESPONSES TO PLAINTIFF’S INTERROGATORIES (SET ONE)
1 “[t]o the extent the motion seeks an absolute preclusion of any discovery by
2 plaintiff, it is necessarily denied, in that this Court has already expressly
3 permitted plaintiff to conduct discovery regarding California jurisdiction over the
4 defendants who are motion to quash service based upon a claim of lack of
5 jurisdiction. . . . In ruling on the prior motions, this Court noted that ‘discovery
6 relating to the trade secret’ may or may not overlap with jurisdictional discovery.
7 It also noted that it did not have any occasion to make any determinations as to
8 the propriety of any particular discovery, as the matter was then presented to the
9 court, and noted that it expected the parties to meet and confer to avoid the
10 necessity of court intervention to the extent practicable.
11 In making that comment, the Court did not find that defendants had no obligation
12 to respond to any jurisdictional discovery that might overlap with trade secret
13 discovery. Rather, it merely noted the possibility of some overlap, and
14 recognized that without the specific discovery requests before it, it could make
15 no determinations as to the propriety of any individual request.
16 Currently, the Court understands that plaintiff has propounded jurisdictional (and
17 potentially other) discovery. It understands further that defendants have
18 responded to some of the discovery, and refused to respond to some of the
19 discovery, contending that it impermissibly seeks trade secret discovery. It also
20 understands that plaintiff has filed motions to compel further responses to the
21 discovery, which are set for hearing on April 1, 2022.
22 Given the ‘zeal’ with which the parties have already been litigating this action,
23 and to prevent the case from further devolving into chaos, the Court will issue a
24 stay of all discovery other than that being conducted to address jurisdictional
25 issues, pending resolution of the motion to quash. Again, this does not mean that
26 any discovery which has some amount of overlap with ‘trade secret’ discovery is
27 automatically precluded; to the extent the parties have good faith disputes over
28 such discovery, they will be resolved in the course of motions to compel and/or
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PLAINTIFF BUTLER AMERICA, LLC’S REPLY TO OPPOSITION TO PLAINTIFF’S MOTION FOR
ORDER COMPELLING FURTHER RESPONSES TO PLAINTIFF’S INTERROGATORIES (SET ONE)
1 future properly drafted and supported motions for protective orders.”
2 Thus, Defendants’ Section 2019.210 arguments and objections are irrelevant as the Court has
3 already ruled that discovery is not precluded in its entirety even if the interrogatories somehow
4 overlap with “trade secret” discovery. Alternatively, if the Court finds that CUTSA preemption
5 and Section 2019.210 are relevant to this Motion, Plaintiff respectfully requests that the Court
6 take judicial notice of Plaintiff’s Opposition to Defendants’ Demurrer to Plaintiff’s Second
7 Amended Complaint filed on March 14, 2022.
8 III. DEFENDANTS’ OBJECTIONS LACK MERIT AS PLAINTIFF’S
9 INTERROGATORIES ARE LIMITED TO JURISDICTIONAL ISSUES
10 Defendants object to the interrogatories primarily on the grounds that they are allegedly
11 not narrowly tailored to jurisdictional issues and seek Defendants’ trade secrets and/or
12 confidential information. Additionally, Defendants provide hypothetical situations “by way of
13 example only” how the interrogatories might be overbroad or not properly limited but fail to
14 state whether any of the examples apply here. That is, instead of complying with the
15 interrogatories to the extent possible, Defendants rely upon hypothetical situations, which may
16 or may not apply, and the alleged imperfection of the interrogatories to justify not responding at
17 all. Nevertheless, even if the interrogatories indirectly seek confidential or trade secret
18 information or are overbroad, Defendants are required to respond to the extent possible.
19 Accordingly, as the interrogatories at issue seek information to support Plaintiff’s
20 opposition to Defendants’ Motion to Quash and only incidentally, if at all, overlap with trade
21 secret discovery, Defendants’ failure to respond to the interrogatories at all is improper. Thus, as
22 set forth below, Defendants should be compelled to respond to the interrogatories, without
23 objections.
24 A. DEFENDANTS ARE REQUIRED TO RESPOND TO THE EXTENT
25 POSSIBLE
26 Specifically, Code of Civil Procedure Sections 2030.240(a) and (b) provide that:
27 “(a) If only a part of an interrogatory is objectionable, the remainder of the
28 interrogatory shall be answered.
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PLAINTIFF BUTLER AMERICA, LLC’S REPLY TO OPPOSITION TO PLAINTIFF’S MOTION FOR
ORDER COMPELLING FURTHER RESPONSES TO PLAINTIFF’S INTERROGATORIES (SET ONE)
1 (b) If an objection is made to an interrogatory or to a part of an interrogatory, the
2 specific ground for the objection shall be set forth clearly in the response. If an
3 objection is based on a claim of privilege, the particular privilege invoked shall
4 be clearly stated. If an objection is based on a claim that the information sought
5 is protected work product under Chapter 4 (commencing with Section 2018.010),
6 that claim shall be expressly asserted.” (emphasis added)
7 Here, Defendants’ responses violate Section 2030.240(a) as, again, at least some portion of the
8 interrogatories seek information with regard to jurisdictional issues which are not trade secrets.
9 Thus, at a minimum, Defendants are required to respond under a narrow interpretation of the
10 interrogatories.
11 Additionally, missing from Defendants’ arguments and objections regarding privileges
12 are any facts which establish that any privileged information responsive to the interrogatories
13 exists. When a party claims a privilege, the party bears the burden of proving the facts showing
14 that there are privileged items. State Farm Fire & Casualty Co. v. Superior Court (1997), 54
15 Cal.App.4th 625, 639. Here, Defendants do not identify any actual information (as opposed to
16 hypothetical information) that falls within any of their objections or claims of privilege.
17 Moreover, it is difficult to imagine (which we must do as Defendants refuse to identify
18 any specific information) how Plaintiff’s interrogatories only seek information related to
19 Defendants’ trade secrets and that there is no responsive information which relate only to
20 jurisdictional issues. Defendants should not be allowed to avoid responding at all because a full
21 response, according to Defendants, might require them to produce privileged information. Thus,
22 Defendants should be compelled to respond to the interrogatories.
23 B. DEFENDANTS’ INTERROGATORIES SEEK INFORMATION
24 REGARDING DEFENDANTS’ BUSINESS ACTIVITIES IN CALIFORNIA
25 All of the interrogatories at issue seek information regarding Defendants’ California
26 clients and contracts and agreements that Defendants have entered into with California
27 individuals or entities. The interrogatories are relevant as business relationships between
28 Defendants and California entities is evidence, at least in part, of “substantial, continuous, and
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PLAINTIFF BUTLER AMERICA, LLC’S REPLY TO OPPOSITION TO PLAINTIFF’S MOTION FOR
ORDER COMPELLING FURTHER RESPONSES TO PLAINTIFF’S INTERROGATORIES (SET ONE)
1 systematic” contacts in California. F. Hoffman-La Roche, Ltd. v. Superior Court (2005) 130
2 Cal. App. 4th 782, 796 (citing Helicopteros Nacionales de Colombia v. Hall (1984) 466 U.S.
3 408, 414-416). Moreover, the information sought may be evidence of one or more of the
4 following elements necessary to establish personal jurisdiction: (1) purposefully directing its
5 activities at forum residents, (2) purposefully deriving benefit from forum activities, or (3)
6 purposefully availing itself of the privilege of conducting activities within the forum state, thus
7 invoking the benefits and protections of its laws. Vons Companies, Inc. v. Seabest Foods, Inc.
8 (1996) 14 Cal. 4th 434, 446 (citing Burger King Carp, v Rudzewicz (1985) 471 U.S. 462).
9 Defendants do not specifically state how these interrogatories seek information
10 regarding Defendants’ trade secrets or why any such incidental overlap justifies no response at
11 all. Curiously, one of Defendants’ objections is that the interrogatories are “impermissibly
12 overbroad as [they are] not reasonably limited in scope.” However, as Defendants assert that
13 they have little or no contacts or business in California, this objection seems to contradict that
14 statement. Moreover, Defendants fail to state whether any responsive information exists at all.
15 Accordingly, responses to the interrogatories are required.
16 C. DEFENDANTS’ PROCEDURAL OBJECTIONS LACK MERIT
17 Defendants assert that, pursuant to California Rules of Court, Rule 3.1345, Plaintiff
18 cannot combine two motions to compel which are identical into one motion. However, Rule
19 3.1345 does not address the issue. Moreover, throughout the meet and confer process and in the
20 Opposition, Defendants do not raise any arguments that apply to UCOMMG but not Unified, or
21 vice versa. Instead, Defendants argue that “[i]mproperly combining multiple motions under the
22 guise of one motion negatively impacts the Court’s calendar, unfairly jumps ahead of other
23 litigants, and allows the moving party to avoid paying the requisite filing fees.” Plaintiff is
24 perplexed as to the first two. Nevertheless, if Plaintiff negatively impacted the Court’s calendar
25 or unfairly jumped ahead of other litigants, it was not Plaintiff’s intent and Plaintiff will
26 stipulate to the continuance of the Motion for equitable reasons and a separate filing fee paid.
27 The motions were combined simply for efficiency purposes as the requests and issues are
28 exactly the same.
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PLAINTIFF BUTLER AMERICA, LLC’S REPLY TO OPPOSITION TO PLAINTIFF’S MOTION FOR
ORDER COMPELLING FURTHER RESPONSES TO PLAINTIFF’S INTERROGATORIES (SET ONE)
1 Defendants also assert that, pursuant to California Rule of Court 3.1345(c)(4), Plaintiff’s
2 separate statement is deficient because it did not include the definitions for the requests, which
3 are set forth within the requests attached to the Declaration of Cameron H. Totten filed
4 concurrently with the Motion on January 4, 2022. Alternatively, if the Court requires an
5 amended separate statement for the inadvertent error, Plaintiff requests leave of court to amend
6 and a continuance of the hearing.
7 IV. DEFENDANTS DID NOT COMPLY WITH LEGITIMATE DISCOVERY
8 REQUESTS OR MEET AND CONFER IN GOOD FAITH
9 Defendants claim that they met and conferred in good faith and that Plaintiff simply
10 “ignored” Defendants. As with Defendants’ numerous motions filed in this matter, Defendant
11 asserts that it is sanctionable for Plaintiff not to agree with Defendants’ position and comply
12 with its demands. Contrary to Defendants’ assertions, Plaintiff made numerous offers and
13 proposals to limit the scope of the requests or do whatever else was necessary to avoid this
14 Motion. However, Defendants were not interested in resolving any disputes once they believed
15 that, ironically, Plaintiff’s meet and confer efforts were not adequate and they could
16 successfully oppose the Motion on that ground alone, which is improper. Obregon v. Superior
17 Court (1998) 67 Cal.App.4th 424, 429–36 (holding that inadequate informal resolution efforts
18 alone is an insufficient basis to deny a motion to compel).
19 As set forth in the Declaration of Cameron H. Totten filed concurrently with the Motion,
20 Plaintiff met and conferred in good faith, and Defendants did not. See, e.g., Clement v. Alegre
21 (2009) 177 Cal.App.4th 1277, 1294 (holding that argument is not the same as informal
22 negotiation and attempting informal resolution means more than the mere attempt by one party
23 to persuade the other of the error of his ways) (citing Townsend v. Superior Court (1998) 61
24 Cal.App.4th 1431, 1434-9). Moreover, there is no basis for Defendants’ assertion that Plaintiff’s
25 interrogatories do not seek any information regarding jurisdiction and were propounded to
26 obtain Defendants’ trade secrets. As such, failing to respond at all is without substantial
27 justification. Defendants simply refused to respond based on their conclusion that the
28 interrogatories were not perfect and that there are hypothetical situations, none of which appear
7
PLAINTIFF BUTLER AMERICA, LLC’S REPLY TO OPPOSITION TO PLAINTIFF’S MOTION FOR
ORDER COMPELLING FURTHER RESPONSES TO PLAINTIFF’S INTERROGATORIES (SET ONE)
1 to apply here, which establish that the interrogatories are allegedly imperfect.
2 It would be unjust to reward Defendants for their game playing and bad faith conduct.
3 Accordingly, monetary sanctions should be awarded against Defendants and their attorneys of
4 record herein, jointly and severally, in the amount of $4620.00, and Defendants’ request for
5 sanctions should be denied in its entirety.
6 V. CONCLUSION
7 For the reasons set forth herein and in Plaintiff’s moving papers, Plaintiff requests that
8 the Court grant Plaintiff’s Motion in its entirety, order Defendants to further respond to the
9 interrogatories and award monetary sanctions against Defendants and their attorneys of record
10 herein, jointly and severally, in the amount of $4620.00.
11
Dated: April 1, 2022 CHORA YOUNG & MANASSERIAN LLP
12
13 By: /s/ Cameron H. Totten
Cameron H. Totten, Esq.
14 Attorneys for Plaintiff Butler America, LLC
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PLAINTIFF BUTLER AMERICA, LLC’S REPLY TO OPPOSITION TO PLAINTIFF’S MOTION FOR
ORDER COMPELLING FURTHER RESPONSES TO PLAINTIFF’S INTERROGATORIES (SET ONE)
PROOF OF SERVICE
1
2 STATE OF CALIFORNIA, COUNTY OF LOS ANGELES
3 I am employed in the County of Los Angeles, State of California. I am over the age of
eighteen (18) years and not a party to the within action. My business address is: 650 Sierra Madre
4
Villa Ave., Ste. 304, Pasadena, CA 91107.
5
On April 1, 2022, I served the foregoing document(s) described as PLAINTIFF
6 BUTLER AMERICA, LLC’S REPLY TO DEFENDANTS’ OPPOSITION TO MOTION
FOR ORDER COMPELLING FURTHER RESPONSES TO PLAINTIFF’S
7
INTERROGATORIES (SET ONE) on the interested parties in this action, as follows:
8
Kathryn M. Evans (SBN 323190) Attorneys for Defendants
9 E-Mail: kmevans@fisherphillips.com UCOMMG, LLC; Unified Communications
FISHER & PHILLIPS LLP Group, Inc.; Kenneth W. Newbatt; Bianca
10
4747 Executive Drive, Suite 1000 Newbatt; Mitchell C. Lipkin; Michael J.
11 San Diego, California 92121 Bellas; Jimmie Garrett Baker, Jr.; WesTele
Telephone: (858) 597-9600 Utility Solutions, LLC; and Cynthia Baker
12 Facsimile: (858) 597-9601
13
Shayna Balch Santiago (SBN 304802)
14 E-Mail: ssantiago@fisherphillips.com
FISHER & PHILLIPS LLP
15 3200 N. Central Avenue, Suite 1550
Phoenix, Arizona 85012-2487
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Telephone: (602) 281-3400
17 Facsimile: (602) 281-3401
18 ( ) (BY MAIL) I placed said copy(ies) in a sealed envelope(s), postage thereon fully
prepaid, and placed for collection and processing for mailing following the business’s
19
ordinary practice, with which I am readily familiar. Under that practice it would be
20 deposited with U.S. postal service on that same day with postage fully prepaid in the
city indicated below in the ordinary course of business.
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(XX) (BY ELECTRONIC TRANSMISSION) I caused the document(s) listed above to be
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electronically transmitted to the email addresses of the addressees as indicated above.
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Executed on April 1, 2022, at Pasadena, California.
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I declare under penalty of perjury under the laws of the State of California that the above
25
is true and correct.
26
27 /s/ Araceli Salcedo
Araceli Salcedo
28
PROOF OF SERVICE
Preview
ELECTRONICALLY FILED Superior Court of California County of Santa Barbara Darrel E. Parker, Executive Officer 1 CHORA YOUNG & MANASSERIAN LLP 4/1/2022 7:45 PM Armen Manasserian (SBN 288199) By: Yuliana Razo, Deputy 2 Cameron H. Totten (SBN 180765) 3 650 Sierra Madre Villa Ave, Suite 304 Pasadena, CA 91107 4 Tel.: (626) 744-1838 Fax: (626) 744-3167 5 Email: cameron@cym.law 6 Attorneys for Plaintiff Butler America, LLC 7 SUPERIOR COURT OF CALIFORNIA 8 COUNTY OF SANTA BARBARA – ANACAPA DIVISION 9 10 BUTLER AMERICA, LLC, a Delaware Case No. 20CV03877 limited liability company, 11 Assigned to the Hon. Donna D. Geck Plaintiff, 12 PLAINTIFF BUTLER AMERICA, LLC’S 13 v. REPLY TO DEFENDANTS’ OPPOSITION TO MOTION FOR ORDER 14 UCOMMG, LLC, a Nevada limited liability COMPELLING FURTHER RESPONSES company; UNIFIED COMMUNICATIONS TO PLAINTIFF’S INTERROGATORIES 15 GROUP, INC., a dissolved Washington (SET ONE) 16 corporation; KENNETH W. NEWBATT, an individual; BIANCA NEWBATT, an Date: April 8, 2022 17 individual; MITCHELL C. LIPKIN, an Time: 10:00 a.m. individual; MICHAEL J. BELLAS, an Dept.: 4 18 individual; JIMMIE GARRETT BAKER, 19 JR., an individual; WESTELE UTILITY Complaint Filed: November 20, 2020 SOLUTIONS, LLC, a California limited Trial Date: Not Set 20 liability company; and DOES 1 through 50, inclusive, 21 22 Defendants. 23 TO THIS HONORABLE COURT, ALL PARTIES AND THEIR ATTORNEYS OF 24 RECORD HEREIN: 25 Plaintiff Butler America, LLC (“Plaintiff”) hereby submits the following Reply to 26 Defendants UCOMMG, LLC and Unified Communications Group, Inc.’s Opposition to 27 Plaintiff’s Motion to Compel Further Responses to Plaintiff’s Interrogatories (Set One) 28 (“Motion”). 1 PLAINTIFF BUTLER AMERICA, LLC’S REPLY TO OPPOSITION TO PLAINTIFF’S MOTION FOR ORDER COMPELLING FURTHER RESPONSES TO PLAINTIFF’S INTERROGATORIES (SET ONE) 1 MEMORANDUM OF POINTS AND AUTHORITIES 2 I. INTRODUCTION 3 Defendants UCOMMG, LLC (“UCOMMG”) and Unified Communications Group, 4 Inc.’s (“Unified”) (collectively referred to herein as “Defendants”) Opposition to Plaintiff’s 5 Motion for Order Compelling Further Responses to Plaintiff’s Interrogatories, Set One 6 (“Opposition”) focuses primarily on the application of California Code of Civil Procedure 7 Section 2019.210 (“Section 2019.210”) and CUTSA, which are not relevant to Plaintiff’s 8 Motion. On the other hand, notably absent from the Opposition is any explanation, argument or 9 facts as to how the interrogatories, at least in part, do not seek information regarding 10 jurisdiction. Instead, Defendants rely on hyper-technical interpretations of the interrogatories 11 that strain credulity. Moreover, Defendants refuse to state whether responsive information exists 12 or whether this is nothing more than an academic exercise. 13 With regard to Defendants’ objections, throughout the meet and confer process, Plaintiff 14 offered to limit the interrogatories to address Defendants’ concerns. However, consistent with 15 Defendants’ “gotcha” litigation strategy throughout this litigation, Defendants refused to engage 16 in any negotiation to resolve the disputes between the parties. Instead, Defendants chose to 17 produce nothing based on technicalities and disregard the Civil Discovery Act’s requirement 18 that they must respond to the extent possible. Accordingly, for the reasons set forth below and 19 in Plaintiff’s moving papers, Plaintiff’s Motion and request for sanctions should be granted in 20 their entirety, and Defendants’ request for sanctions should be denied. 21 II. SECTION 2019.210 IS NOT APPLICABLE TO PLAINTIFF’S 22 INTERROGATORIES 23 On December 3, 2021, this Court ruled that Plaintiff was entitled to jurisdictional 24 discovery, regardless of Section 2019.210. On February 18, 2022, this Court ruled upon 25 Defendants’ Motion for Terminating Sanctions and alternative Motion for Protective Order 26 denying Plaintiff’s any right to discovery. The Court reiterated that Plaintiff was entitled to 27 jurisdictional discovery for purposes of opposing Defendants’ Motion to Quash Service of 28 Summons. Specifically, the Court stated that 2 PLAINTIFF BUTLER AMERICA, LLC’S REPLY TO OPPOSITION TO PLAINTIFF’S MOTION FOR ORDER COMPELLING FURTHER RESPONSES TO PLAINTIFF’S INTERROGATORIES (SET ONE) 1 “[t]o the extent the motion seeks an absolute preclusion of any discovery by 2 plaintiff, it is necessarily denied, in that this Court has already expressly 3 permitted plaintiff to conduct discovery regarding California jurisdiction over the 4 defendants who are motion to quash service based upon a claim of lack of 5 jurisdiction. . . . In ruling on the prior motions, this Court noted that ‘discovery 6 relating to the trade secret’ may or may not overlap with jurisdictional discovery. 7 It also noted that it did not have any occasion to make any determinations as to 8 the propriety of any particular discovery, as the matter was then presented to the 9 court, and noted that it expected the parties to meet and confer to avoid the 10 necessity of court intervention to the extent practicable. 11 In making that comment, the Court did not find that defendants had no obligation 12 to respond to any jurisdictional discovery that might overlap with trade secret 13 discovery. Rather, it merely noted the possibility of some overlap, and 14 recognized that without the specific discovery requests before it, it could make 15 no determinations as to the propriety of any individual request. 16 Currently, the Court understands that plaintiff has propounded jurisdictional (and 17 potentially other) discovery. It understands further that defendants have 18 responded to some of the discovery, and refused to respond to some of the 19 discovery, contending that it impermissibly seeks trade secret discovery. It also 20 understands that plaintiff has filed motions to compel further responses to the 21 discovery, which are set for hearing on April 1, 2022. 22 Given the ‘zeal’ with which the parties have already been litigating this action, 23 and to prevent the case from further devolving into chaos, the Court will issue a 24 stay of all discovery other than that being conducted to address jurisdictional 25 issues, pending resolution of the motion to quash. Again, this does not mean that 26 any discovery which has some amount of overlap with ‘trade secret’ discovery is 27 automatically precluded; to the extent the parties have good faith disputes over 28 such discovery, they will be resolved in the course of motions to compel and/or 3 PLAINTIFF BUTLER AMERICA, LLC’S REPLY TO OPPOSITION TO PLAINTIFF’S MOTION FOR ORDER COMPELLING FURTHER RESPONSES TO PLAINTIFF’S INTERROGATORIES (SET ONE) 1 future properly drafted and supported motions for protective orders.” 2 Thus, Defendants’ Section 2019.210 arguments and objections are irrelevant as the Court has 3 already ruled that discovery is not precluded in its entirety even if the interrogatories somehow 4 overlap with “trade secret” discovery. Alternatively, if the Court finds that CUTSA preemption 5 and Section 2019.210 are relevant to this Motion, Plaintiff respectfully requests that the Court 6 take judicial notice of Plaintiff’s Opposition to Defendants’ Demurrer to Plaintiff’s Second 7 Amended Complaint filed on March 14, 2022. 8 III. DEFENDANTS’ OBJECTIONS LACK MERIT AS PLAINTIFF’S 9 INTERROGATORIES ARE LIMITED TO JURISDICTIONAL ISSUES 10 Defendants object to the interrogatories primarily on the grounds that they are allegedly 11 not narrowly tailored to jurisdictional issues and seek Defendants’ trade secrets and/or 12 confidential information. Additionally, Defendants provide hypothetical situations “by way of 13 example only” how the interrogatories might be overbroad or not properly limited but fail to 14 state whether any of the examples apply here. That is, instead of complying with the 15 interrogatories to the extent possible, Defendants rely upon hypothetical situations, which may 16 or may not apply, and the alleged imperfection of the interrogatories to justify not responding at 17 all. Nevertheless, even if the interrogatories indirectly seek confidential or trade secret 18 information or are overbroad, Defendants are required to respond to the extent possible. 19 Accordingly, as the interrogatories at issue seek information to support Plaintiff’s 20 opposition to Defendants’ Motion to Quash and only incidentally, if at all, overlap with trade 21 secret discovery, Defendants’ failure to respond to the interrogatories at all is improper. Thus, as 22 set forth below, Defendants should be compelled to respond to the interrogatories, without 23 objections. 24 A. DEFENDANTS ARE REQUIRED TO RESPOND TO THE EXTENT 25 POSSIBLE 26 Specifically, Code of Civil Procedure Sections 2030.240(a) and (b) provide that: 27 “(a) If only a part of an interrogatory is objectionable, the remainder of the 28 interrogatory shall be answered. 4 PLAINTIFF BUTLER AMERICA, LLC’S REPLY TO OPPOSITION TO PLAINTIFF’S MOTION FOR ORDER COMPELLING FURTHER RESPONSES TO PLAINTIFF’S INTERROGATORIES (SET ONE) 1 (b) If an objection is made to an interrogatory or to a part of an interrogatory, the 2 specific ground for the objection shall be set forth clearly in the response. If an 3 objection is based on a claim of privilege, the particular privilege invoked shall 4 be clearly stated. If an objection is based on a claim that the information sought 5 is protected work product under Chapter 4 (commencing with Section 2018.010), 6 that claim shall be expressly asserted.” (emphasis added) 7 Here, Defendants’ responses violate Section 2030.240(a) as, again, at least some portion of the 8 interrogatories seek information with regard to jurisdictional issues which are not trade secrets. 9 Thus, at a minimum, Defendants are required to respond under a narrow interpretation of the 10 interrogatories. 11 Additionally, missing from Defendants’ arguments and objections regarding privileges 12 are any facts which establish that any privileged information responsive to the interrogatories 13 exists. When a party claims a privilege, the party bears the burden of proving the facts showing 14 that there are privileged items. State Farm Fire & Casualty Co. v. Superior Court (1997), 54 15 Cal.App.4th 625, 639. Here, Defendants do not identify any actual information (as opposed to 16 hypothetical information) that falls within any of their objections or claims of privilege. 17 Moreover, it is difficult to imagine (which we must do as Defendants refuse to identify 18 any specific information) how Plaintiff’s interrogatories only seek information related to 19 Defendants’ trade secrets and that there is no responsive information which relate only to 20 jurisdictional issues. Defendants should not be allowed to avoid responding at all because a full 21 response, according to Defendants, might require them to produce privileged information. Thus, 22 Defendants should be compelled to respond to the interrogatories. 23 B. DEFENDANTS’ INTERROGATORIES SEEK INFORMATION 24 REGARDING DEFENDANTS’ BUSINESS ACTIVITIES IN CALIFORNIA 25 All of the interrogatories at issue seek information regarding Defendants’ California 26 clients and contracts and agreements that Defendants have entered into with California 27 individuals or entities. The interrogatories are relevant as business relationships between 28 Defendants and California entities is evidence, at least in part, of “substantial, continuous, and 5 PLAINTIFF BUTLER AMERICA, LLC’S REPLY TO OPPOSITION TO PLAINTIFF’S MOTION FOR ORDER COMPELLING FURTHER RESPONSES TO PLAINTIFF’S INTERROGATORIES (SET ONE) 1 systematic” contacts in California. F. Hoffman-La Roche, Ltd. v. Superior Court (2005) 130 2 Cal. App. 4th 782, 796 (citing Helicopteros Nacionales de Colombia v. Hall (1984) 466 U.S. 3 408, 414-416). Moreover, the information sought may be evidence of one or more of the 4 following elements necessary to establish personal jurisdiction: (1) purposefully directing its 5 activities at forum residents, (2) purposefully deriving benefit from forum activities, or (3) 6 purposefully availing itself of the privilege of conducting activities within the forum state, thus 7 invoking the benefits and protections of its laws. Vons Companies, Inc. v. Seabest Foods, Inc. 8 (1996) 14 Cal. 4th 434, 446 (citing Burger King Carp, v Rudzewicz (1985) 471 U.S. 462). 9 Defendants do not specifically state how these interrogatories seek information 10 regarding Defendants’ trade secrets or why any such incidental overlap justifies no response at 11 all. Curiously, one of Defendants’ objections is that the interrogatories are “impermissibly 12 overbroad as [they are] not reasonably limited in scope.” However, as Defendants assert that 13 they have little or no contacts or business in California, this objection seems to contradict that 14 statement. Moreover, Defendants fail to state whether any responsive information exists at all. 15 Accordingly, responses to the interrogatories are required. 16 C. DEFENDANTS’ PROCEDURAL OBJECTIONS LACK MERIT 17 Defendants assert that, pursuant to California Rules of Court, Rule 3.1345, Plaintiff 18 cannot combine two motions to compel which are identical into one motion. However, Rule 19 3.1345 does not address the issue. Moreover, throughout the meet and confer process and in the 20 Opposition, Defendants do not raise any arguments that apply to UCOMMG but not Unified, or 21 vice versa. Instead, Defendants argue that “[i]mproperly combining multiple motions under the 22 guise of one motion negatively impacts the Court’s calendar, unfairly jumps ahead of other 23 litigants, and allows the moving party to avoid paying the requisite filing fees.” Plaintiff is 24 perplexed as to the first two. Nevertheless, if Plaintiff negatively impacted the Court’s calendar 25 or unfairly jumped ahead of other litigants, it was not Plaintiff’s intent and Plaintiff will 26 stipulate to the continuance of the Motion for equitable reasons and a separate filing fee paid. 27 The motions were combined simply for efficiency purposes as the requests and issues are 28 exactly the same. 6 PLAINTIFF BUTLER AMERICA, LLC’S REPLY TO OPPOSITION TO PLAINTIFF’S MOTION FOR ORDER COMPELLING FURTHER RESPONSES TO PLAINTIFF’S INTERROGATORIES (SET ONE) 1 Defendants also assert that, pursuant to California Rule of Court 3.1345(c)(4), Plaintiff’s 2 separate statement is deficient because it did not include the definitions for the requests, which 3 are set forth within the requests attached to the Declaration of Cameron H. Totten filed 4 concurrently with the Motion on January 4, 2022. Alternatively, if the Court requires an 5 amended separate statement for the inadvertent error, Plaintiff requests leave of court to amend 6 and a continuance of the hearing. 7 IV. DEFENDANTS DID NOT COMPLY WITH LEGITIMATE DISCOVERY 8 REQUESTS OR MEET AND CONFER IN GOOD FAITH 9 Defendants claim that they met and conferred in good faith and that Plaintiff simply 10 “ignored” Defendants. As with Defendants’ numerous motions filed in this matter, Defendant 11 asserts that it is sanctionable for Plaintiff not to agree with Defendants’ position and comply 12 with its demands. Contrary to Defendants’ assertions, Plaintiff made numerous offers and 13 proposals to limit the scope of the requests or do whatever else was necessary to avoid this 14 Motion. However, Defendants were not interested in resolving any disputes once they believed 15 that, ironically, Plaintiff’s meet and confer efforts were not adequate and they could 16 successfully oppose the Motion on that ground alone, which is improper. Obregon v. Superior 17 Court (1998) 67 Cal.App.4th 424, 429–36 (holding that inadequate informal resolution efforts 18 alone is an insufficient basis to deny a motion to compel). 19 As set forth in the Declaration of Cameron H. Totten filed concurrently with the Motion, 20 Plaintiff met and conferred in good faith, and Defendants did not. See, e.g., Clement v. Alegre 21 (2009) 177 Cal.App.4th 1277, 1294 (holding that argument is not the same as informal 22 negotiation and attempting informal resolution means more than the mere attempt by one party 23 to persuade the other of the error of his ways) (citing Townsend v. Superior Court (1998) 61 24 Cal.App.4th 1431, 1434-9). Moreover, there is no basis for Defendants’ assertion that Plaintiff’s 25 interrogatories do not seek any information regarding jurisdiction and were propounded to 26 obtain Defendants’ trade secrets. As such, failing to respond at all is without substantial 27 justification. Defendants simply refused to respond based on their conclusion that the 28 interrogatories were not perfect and that there are hypothetical situations, none of which appear 7 PLAINTIFF BUTLER AMERICA, LLC’S REPLY TO OPPOSITION TO PLAINTIFF’S MOTION FOR ORDER COMPELLING FURTHER RESPONSES TO PLAINTIFF’S INTERROGATORIES (SET ONE) 1 to apply here, which establish that the interrogatories are allegedly imperfect. 2 It would be unjust to reward Defendants for their game playing and bad faith conduct. 3 Accordingly, monetary sanctions should be awarded against Defendants and their attorneys of 4 record herein, jointly and severally, in the amount of $4620.00, and Defendants’ request for 5 sanctions should be denied in its entirety. 6 V. CONCLUSION 7 For the reasons set forth herein and in Plaintiff’s moving papers, Plaintiff requests that 8 the Court grant Plaintiff’s Motion in its entirety, order Defendants to further respond to the 9 interrogatories and award monetary sanctions against Defendants and their attorneys of record 10 herein, jointly and severally, in the amount of $4620.00. 11 Dated: April 1, 2022 CHORA YOUNG & MANASSERIAN LLP 12 13 By: /s/ Cameron H. Totten Cameron H. Totten, Esq. 14 Attorneys for Plaintiff Butler America, LLC 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8 PLAINTIFF BUTLER AMERICA, LLC’S REPLY TO OPPOSITION TO PLAINTIFF’S MOTION FOR ORDER COMPELLING FURTHER RESPONSES TO PLAINTIFF’S INTERROGATORIES (SET ONE) PROOF OF SERVICE 1 2 STATE OF CALIFORNIA, COUNTY OF LOS ANGELES 3 I am employed in the County of Los Angeles, State of California. I am over the age of eighteen (18) years and not a party to the within action. My business address is: 650 Sierra Madre 4 Villa Ave., Ste. 304, Pasadena, CA 91107. 5 On April 1, 2022, I served the foregoing document(s) described as PLAINTIFF 6 BUTLER AMERICA, LLC’S REPLY TO DEFENDANTS’ OPPOSITION TO MOTION FOR ORDER COMPELLING FURTHER RESPONSES TO PLAINTIFF’S 7 INTERROGATORIES (SET ONE) on the interested parties in this action, as follows: 8 Kathryn M. Evans (SBN 323190) Attorneys for Defendants 9 E-Mail: kmevans@fisherphillips.com UCOMMG, LLC; Unified Communications FISHER & PHILLIPS LLP Group, Inc.; Kenneth W. Newbatt; Bianca 10 4747 Executive Drive, Suite 1000 Newbatt; Mitchell C. Lipkin; Michael J. 11 San Diego, California 92121 Bellas; Jimmie Garrett Baker, Jr.; WesTele Telephone: (858) 597-9600 Utility Solutions, LLC; and Cynthia Baker 12 Facsimile: (858) 597-9601 13 Shayna Balch Santiago (SBN 304802) 14 E-Mail: ssantiago@fisherphillips.com FISHER & PHILLIPS LLP 15 3200 N. Central Avenue, Suite 1550 Phoenix, Arizona 85012-2487 16 Telephone: (602) 281-3400 17 Facsimile: (602) 281-3401 18 ( ) (BY MAIL) I placed said copy(ies) in a sealed envelope(s), postage thereon fully prepaid, and placed for collection and processing for mailing following the business’s 19 ordinary practice, with which I am readily familiar. Under that practice it would be 20 deposited with U.S. postal service on that same day with postage fully prepaid in the city indicated below in the ordinary course of business. 21 (XX) (BY ELECTRONIC TRANSMISSION) I caused the document(s) listed above to be 22 electronically transmitted to the email addresses of the addressees as indicated above. 23 Executed on April 1, 2022, at Pasadena, California. 24 I declare under penalty of perjury under the laws of the State of California that the above 25 is true and correct. 26 27 /s/ Araceli Salcedo Araceli Salcedo 28 PROOF OF SERVICE