Preview
1 R. Boone Callaway (#126664)
boone@callawayandwolf.com
2 Vadim Nebuchin (#256630)
vadim@callawayandwolf.com ELECTRONICALLY
3 CALLAWAY & WOLF F I L E D
150 Post Street, Suite 600 Superior Court of California,
County of San Francisco
4 San Francisco, CA 94108
Telephone: (415) 541-0300 03/09/2020
5 Facsimile: (415) 777-6262 Clerk of the Court
BY: SANDRA SCHIRO
Deputy Clerk
6 Attorneys for Plaintiff Stacy Knight
7
8 IN THE SUPERIOR COURT OF UNLIMITED JURISDICTION
9 OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF SAN FRANCISCO
10 DISCOVERY
11 Stacy Knight, ) CASE: CGC-19-577363
)
12 Plaintiff, ) MEMORANDUM OF POINTS AND
) AUTHORITIES IN SUPPORT OF
13 vs. ) MOTION FOR ORDER TO COMPEL
) RESPONSES TO
14 Walgreen Co., an Illinois corporation, ) INTERROGATORIES; RESPONSES
Bay Valley Security, L.L.C., and ) TO REQUEST FOR PRODUCTION
15 Does 1 through 25, inclusive. ) OF DOCUMENTS, AND FOR
) PRODUCTION OF DOCUMENTS;
16 Defendants. ) AND FOR MONETARY SANCTIONS
)
17 ) Date: April 7, 2020
) Time: 9:00 AM
18 ___________________________________ ) Dept.: 302
19
20 INTRODUCTION
21 This is a personal injury case based upon the injuries and damages Plaintiff sustained in
22 2019 after being knocked down by a suspected shoplifter being chased by a security guard while
23 shopping at the Walgreeens store located at 3400 Caesar Chavez in San Francisco. There are
24 currently two defense counsel working on the case and listed on discovery responses: Paul Caleo
25 and Erica Summan. At the outset of the events described herein, Patrick Callahan was one of the
26 defense attorneys on the case.
27
28
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO COMPEL
1
1 A PARTY PROPOUNDING INTERROGATORIES MAY MOVE FOR AN ORDER
COMPELLING RESPONSES, AND MONETARY SANCTIONS, WHERE THE
2 RESPONDING PARTY FAILS TO PROVIDE COMPLETE RESPONSES
3 California Code of Civil Procedure Section 2030.300 states that:
4 (a) On receipt of a response to interrogatories, the propounding
party may move for an order compelling a further response if the
5 propounding party deems that any of the following apply: (1) An
answer to a particular interrogatory is evasive or incomplete. (3) an
6 objection to an interrogatory is without merit or too general
7 (d) The court shall impose a monetary sanction under Chapter 7
(commencing with Section 2023.010) against any party, person, or
8 attorney who unsuccessfully makes or opposes a motion to compel
a further response to interrogatories, unless it finds that the one
9 subject to the sanction acted with substantial justification or that
other circumstances make the imposition of the sanction unjust.
10
11 Here, Plaintiff propounded to defendant Walgreen Co. a first set of Form Interrogatories,
12 Special Interrogatories, and a Request for Production of Documents/Tangible Things on October
13 31, 2019; responses were due on December 5th.
14 On December 16th, having not received any response from Defendant to the propounded
15 discovery, Plaintiff’s counsel faxed a letter to defense counsel Paul Caleo informing him of the
16 failure to respond, and requested complete, verified responses within 14 days, by December
17 30th.
18 On January 2, 2020, Plaintiff’s counsel spoke to defense counsel Patrick Callahan, who
19 stated that he was unaware of receiving any discovery, or the faxed letter to Mr. Caleo. Mr.
20 Callahan then sent an email to Plaintiff’s counsel stating that “due to an oversight, your letter
21 regarding Plaintiff’s discovery to Walgreens was not forwarded to me until today. We have
22 searched our files and have no record of having received Plaintiff’s discovery.” Plaintiff’s
23 counsel replied, stating “if you will send me a declaration that the discovery was not received, I
24 will re-serve it and not take the position that objections have been waived.” On January 6th,
25 Patrick Callahan provided a declaration stating that “based on my investigation into this issue,
26 including conversations with those employees who would have had direct knowledge of the
27 subject discovery, on information and belief, the subject discovery was never received by
28 Burnham Brown.”
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO COMPEL
2
1 On January 7th, Plaintiff again propounded to Defendant Walgreen Co. a first set of
2 Form Interrogatories, Special Interrogatories, and a Request for Production of Documents;
3 responses to be due on February 10th.
4 On February 4th, defense counsel Erica Summan requested an extension of time to
5 respond to February 25th, which was granted.
6 On February 18th, Erica Summan requested an additional extension to March 10th.
7 Plaintiff’s counsel declined the second extension, stating that because of the history of the
8 discovery, the previous extension, and a looming trial date, he could not grant a further
9 extension.
10 Defendant then provided unverified responses to the discovery. To date, Defendant has
11 not provided the required verifications to the propounded discovery, thus making the responses
12 totally ineffective; the equivalent of no response at all. See Appleton v. Sup.Ct. (Cook) (1988)
13 206 CA3d 632, 636, 253 CR 762, 764. The responses are replete with boilerplate-type
14 objections, and many have no substantive responses, but include statements that “discovery is
15 ongoing,” or that “our investigation is continuing.”
16
17 A PARTY PROPOUNDING REQUESTS FOR PRODUCTION OF DOCUMENTS MAY
MOVE FOR AN ORDER COMPELLING RESPONSES, AND MONETARY SANCTIONS,
18 WHERE THE RESPONDING PARTY MAKES OBJECTIONS LACKING MERIT
19 California Code of Civil Procedure section 2031.310 provides as follows:
20 (a) On receipt of a response to an inspection demand, the party
demanding an inspection may move for an order compelling
21 further response to the demand if the demanding party deems that
any of the following apply: (3) an objection in the response is
22 without merit or too general.
23 (d) The court shall impose a monetary sanction under Chapter 7
(commencing with Section 2023.010) against any party, person, or
24 attorney who unsuccessfully makes or opposes a motion to compel
further response to an inspection demand, unless it finds that the
25 one subject to the sanction acted with substantial justification or
that other circumstances make the imposition of the sanction
26 unjust.
27 Here, Defendant has objected to many of Plaintiff’s requests for documents, and is
28 insisting that Plaintiff stipulate to a protective order before it will produce anything. Pursuant to
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO COMPEL
3
1 C.C.P. 2031.060 (b)5, a party to whom a request for production of documents is sent can seek a
2 protective order asking the court to order “that a trade secret or other confidential research,
3 development, or commercial information not be disclosed, or be disclosed only to specified
4 persons or only in a specified way.” Such orders require a showing of good cause by the party
5 seeking the order. Stadish v. Superior Court (1999) 71 Cal.App.4th 1130, 1145. To make the
6 required showing, a party must provide an affidavit or declaration:
7 — listing the declarant's qualifications to give an opinion;
8 — identifying the alleged trade secret;
9 — identifying the documents disclosing the trade secret; and
10 — presenting evidence that the secret qualifies as a “trade secret.”
11 Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial
(The Rutter Group 2019) ~ 8:1456.8 et seq.
12
13 It is Defendant’s burden to make the required showing as to any documents which it
14 ultimately finds and produces. So far, Plaintiff has not seen any evidence supporting the need for
15 a confidentiality agreement.
16 It is worth noting that instead of producing documents when the extended deadline came,
17 Defendant sent the proposed agreement. Defense counsel could easily have suggested the
18 agreement at or before the time the extension was requested, so that this issue might be settled in
19 advance of the production date, and counsel must have known that they were going to seek the
20 order.
21 Plaintiff is entitled to these documents since they directly relate to the issues in this
22 action, are admissible evidence, and are certainly likely to lead to the discovery of admissible
23 evidence. Many of the responses to requests for production state that “Defendant is continuing to
24 search for responsive documents and will provide supplemental responses within 21 days.” This
25 is a clear example of discovery abuse: the objections are not tailored to the requests, and
26 Defendant has attempted to give itself an additional 21-day extension. This type of conduct
27 subjects Defendant to sanctions, as it cannot be justified as reasonable.
28
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO COMPEL
4
1 MEET AND CONFER EFFORTS
2 On February 28th, Plaintiff’s counsel wrote to Erica Summan in an effort to meet and
3 confer regarding the discovery responses received from Defendant. In the February 28th email,
4 Mr. Callaway stated that he would wait until Friday, March 6th, to file a motion. The email
5 detailed all of the responses which Mr. Callaway contended were deficient. Mr. Callaway also
6 sent a fax to Ms. Summan on Monday, March 2nd. Ms. Summan sent Mr. Callaway an email on
7 March 4th stating that she is “working on drafting amended responses and am speaking with my
8 client regarding which amendments to make. I am willing to extend the motion to compel
9 deadline as I work on getting the amended responses to you.”
10 Mr. Callaway replied to the March 4 email that same day, saying that:
11 Unilaterally generating amended responses which only partially
address the concerns I have raised will not resolve this dispute.
12 Generating a new set of responses unilaterally does not satisfy
your duty to meet and confer over these issues, unless you are
13 planning to fully comply with everything I raised in my meet and
confer email to you. I am not willing to delay this process further
14 with an extension of time to file a motion. I am seeking substantive
responses, not an extension of time. I will file the motion on Friday
15 unless this matter is fully resolved.
16 On March 5th, Ms. Summan sent Mr. Callaway a one-line email stating ”we will provide
17 substantive responses to all issues you raised in your meet and confer email regarding Defendant
18 Walgreen’s discovery responses.” Despite the lack of any time frame in which these additional
19 responses would be received, Mr. Callaway waited until the close of business Friday, March 6th,
20 to see if additional responses would be sent, but nothing else arrived, so this motion was filed on
21 the following Monday.
22
23 PLAINTIFF IS ENTITLED TO REASONABLE COSTS IN PURSUING THIS MOTION,
WHETHER OR NOT RESPONSES ARE PROVIDED PRIOR TO THE HEARING.
24
25 Failing to respond or to submit to an authorized method of discovery is listed in
26 Paragraph (d) of California Code of Civil Procedure Section 2023.010 as an act constituting
27 misuse of discovery process. California Code of Civil Procedure Section 2023.030(a) provides
28 that the court may impose a monetary sanction ordering that one engaging in the misuse of the
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO COMPEL
5
1 discovery process ... pay the reasonable expenses, including attorney's fees, incurred by anyone
2 as a result of that conduct.
3 Cal. Rules of Court, rule 3.1030(a) states as follows:
4 The court may award sanctions under the Discovery Act in favor
of a party who files a motion to compel discovery, even though . . .
5 the requested discovery was provided to the moving party after the
motion was filed.
6
7 Discovery is intended to be self-executing. A motion should not be necessary to elicit
8 appropriate responses. See Clement v. Alegre, 177 Cal.App.4th 1277, 1281 (2009); see also
9 Townsend v. Superior Court, 61 Cal.App.4th 1431 (1998).
10 As set forth in the Declaration of R. Boone Callaway, he has expended a total of 3.8
11 hours preparing this motion, incurring fees of $1,520, based on an hourly rate of $400, in its
12 preparation. Filing fees in the amount of $74 will also be incurred, which does not include
13 delivery of courtesy copied to Department 302, or a reply to an anticipated opposition. Also,
14 additional time will be necessary to attend any hearing of this motion. Plaintiff requests that the
15 court order defense counsel Erica Summan to pay the reasonable expenses and attorney's fees for
16 the preparation and filing of this motion.
17
18 V. CONCLUSION
19 Defendant has not participated in any substantive way in Plaintiff’s efforts to meet and
20 confer. There has been no letter or call addressing the concerns Mr. Callaway raised in his email.
21 Perhaps the reason is that there is no defense or legitimate explanation for the utter disregard of
22 the discovery rules. This is not a case of good-faith differences in what is fair or reasonable.
23 These replies, with their boilerplate objections and statements that discovery is ongoing and
24 Defendant is still searching for things are indefensible. As of the date this motion is filed, no
25 additional responses have been received, and defense counsel have not given any date by which
26 anything further can be expected.
27 Based upon the foregoing argument and authorities, Plaintiff requests that the court order
28 Defendant to fully respond without objections to all of the discovery listed in the separate
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO COMPEL
6
1 statement herein within five (5) days of any court order, and award Plaintiff monetary sanctions
2 against defendant Walgreen Co. and its counsel in an amount to be determined at the hearing, for
3 the reasonable expenses, including filing and attorney’s fees, for the preparation and necessary
4 time spent at the hearing of this motion.
5
6 Respectfully submitted,
7 Dated: March 9, 2020 CALLAWAY & WOLF
8
9 By: ______________________________
R. Boone Callaway
10 Attorneys for Plaintiff
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO COMPEL
7
PROOF OF SERVICE
Knight vs. Walgreen Co.
3 I am over the age ofeighteen years and am not a party to this action. I am a resident of, or
employed in the City and County of San Francisco. My business address is 150 Post Street, Suite
4 600, San Francisco, CA 94108.
On March 9,2020,1 served the document(s)described as:
6 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF
MOTION FOR ORDER TO COMPEL RESPONSES TO
7 INTERROGATORIES; RESPONSES TO REQUEST FOR PRODUCTION
OF DOCUMENTS,AND FOR PRODUCTION OF DOCUMENTS; AND
8 FOR MONETARY SANCTIONS
9 □ by Court approved electronic service File & Serve Xpress to the person listed on
the Transmission Receipt located on the vendor's website.
10
□ by personally delivering a copy thereof to the person at the address below.
11
□ by causing personal delivery of a copy thereof, by an agent of a messenger
12 service, to Ae person at the address below.
13 □ by enclosing a copy thereof in a box or other facility regularly maintained by an
express service carrier, or delivered to a courier/driver authorized by the express
14 carrier to receive documents, in an envelope designated by the express carrier,
with delivery fees paid or provided for, to the person at the address below.
/ by enclosing a copy thereof in a sealed envelope with postage fully prepaid and
16 placed for collection and mailing by the United States Postal Service, following
our ordinaty business practices, to the person at the address below. 1 am readily
17 familiar with this business's practice for processing correspondence for mailing.
18
19 Erica Summan
BURNHAM BROWN
20 1901 Harrison Street, Suite 1400
Oakland, CA 94612
21
Kristina Fedroso
22 WOOD, SMITH, HENNING
1401 Willow Pass Road, Suite 700
23 Concord, California 94520
24 1 declare under penalty of perjury that the foregoing is true and correct. Executed on
25 March 9,2020, at San Francisco, California.
26
27
28
PROOF OF SERVICE [C.C.P. §1013]
Preview
1 R. Boone Callaway (#126664) boone@callawayandwolf.com 2 Vadim Nebuchin (#256630) vadim@callawayandwolf.com ELECTRONICALLY 3 CALLAWAY & WOLF F I L E D 150 Post Street, Suite 600 Superior Court of California, County of San Francisco 4 San Francisco, CA 94108 Telephone: (415) 541-0300 03/09/2020 5 Facsimile: (415) 777-6262 Clerk of the Court BY: SANDRA SCHIRO Deputy Clerk 6 Attorneys for Plaintiff Stacy Knight 7 8 IN THE SUPERIOR COURT OF UNLIMITED JURISDICTION 9 OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF SAN FRANCISCO 10 DISCOVERY 11 Stacy Knight, ) CASE: CGC-19-577363 ) 12 Plaintiff, ) MEMORANDUM OF POINTS AND ) AUTHORITIES IN SUPPORT OF 13 vs. ) MOTION FOR ORDER TO COMPEL ) RESPONSES TO 14 Walgreen Co., an Illinois corporation, ) INTERROGATORIES; RESPONSES Bay Valley Security, L.L.C., and ) TO REQUEST FOR PRODUCTION 15 Does 1 through 25, inclusive. ) OF DOCUMENTS, AND FOR ) PRODUCTION OF DOCUMENTS; 16 Defendants. ) AND FOR MONETARY SANCTIONS ) 17 ) Date: April 7, 2020 ) Time: 9:00 AM 18 ___________________________________ ) Dept.: 302 19 20 INTRODUCTION 21 This is a personal injury case based upon the injuries and damages Plaintiff sustained in 22 2019 after being knocked down by a suspected shoplifter being chased by a security guard while 23 shopping at the Walgreeens store located at 3400 Caesar Chavez in San Francisco. There are 24 currently two defense counsel working on the case and listed on discovery responses: Paul Caleo 25 and Erica Summan. At the outset of the events described herein, Patrick Callahan was one of the 26 defense attorneys on the case. 27 28 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO COMPEL 1 1 A PARTY PROPOUNDING INTERROGATORIES MAY MOVE FOR AN ORDER COMPELLING RESPONSES, AND MONETARY SANCTIONS, WHERE THE 2 RESPONDING PARTY FAILS TO PROVIDE COMPLETE RESPONSES 3 California Code of Civil Procedure Section 2030.300 states that: 4 (a) On receipt of a response to interrogatories, the propounding party may move for an order compelling a further response if the 5 propounding party deems that any of the following apply: (1) An answer to a particular interrogatory is evasive or incomplete. (3) an 6 objection to an interrogatory is without merit or too general 7 (d) The court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against any party, person, or 8 attorney who unsuccessfully makes or opposes a motion to compel a further response to interrogatories, unless it finds that the one 9 subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust. 10 11 Here, Plaintiff propounded to defendant Walgreen Co. a first set of Form Interrogatories, 12 Special Interrogatories, and a Request for Production of Documents/Tangible Things on October 13 31, 2019; responses were due on December 5th. 14 On December 16th, having not received any response from Defendant to the propounded 15 discovery, Plaintiff’s counsel faxed a letter to defense counsel Paul Caleo informing him of the 16 failure to respond, and requested complete, verified responses within 14 days, by December 17 30th. 18 On January 2, 2020, Plaintiff’s counsel spoke to defense counsel Patrick Callahan, who 19 stated that he was unaware of receiving any discovery, or the faxed letter to Mr. Caleo. Mr. 20 Callahan then sent an email to Plaintiff’s counsel stating that “due to an oversight, your letter 21 regarding Plaintiff’s discovery to Walgreens was not forwarded to me until today. We have 22 searched our files and have no record of having received Plaintiff’s discovery.” Plaintiff’s 23 counsel replied, stating “if you will send me a declaration that the discovery was not received, I 24 will re-serve it and not take the position that objections have been waived.” On January 6th, 25 Patrick Callahan provided a declaration stating that “based on my investigation into this issue, 26 including conversations with those employees who would have had direct knowledge of the 27 subject discovery, on information and belief, the subject discovery was never received by 28 Burnham Brown.” MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO COMPEL 2 1 On January 7th, Plaintiff again propounded to Defendant Walgreen Co. a first set of 2 Form Interrogatories, Special Interrogatories, and a Request for Production of Documents; 3 responses to be due on February 10th. 4 On February 4th, defense counsel Erica Summan requested an extension of time to 5 respond to February 25th, which was granted. 6 On February 18th, Erica Summan requested an additional extension to March 10th. 7 Plaintiff’s counsel declined the second extension, stating that because of the history of the 8 discovery, the previous extension, and a looming trial date, he could not grant a further 9 extension. 10 Defendant then provided unverified responses to the discovery. To date, Defendant has 11 not provided the required verifications to the propounded discovery, thus making the responses 12 totally ineffective; the equivalent of no response at all. See Appleton v. Sup.Ct. (Cook) (1988) 13 206 CA3d 632, 636, 253 CR 762, 764. The responses are replete with boilerplate-type 14 objections, and many have no substantive responses, but include statements that “discovery is 15 ongoing,” or that “our investigation is continuing.” 16 17 A PARTY PROPOUNDING REQUESTS FOR PRODUCTION OF DOCUMENTS MAY MOVE FOR AN ORDER COMPELLING RESPONSES, AND MONETARY SANCTIONS, 18 WHERE THE RESPONDING PARTY MAKES OBJECTIONS LACKING MERIT 19 California Code of Civil Procedure section 2031.310 provides as follows: 20 (a) On receipt of a response to an inspection demand, the party demanding an inspection may move for an order compelling 21 further response to the demand if the demanding party deems that any of the following apply: (3) an objection in the response is 22 without merit or too general. 23 (d) The court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against any party, person, or 24 attorney who unsuccessfully makes or opposes a motion to compel further response to an inspection demand, unless it finds that the 25 one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction 26 unjust. 27 Here, Defendant has objected to many of Plaintiff’s requests for documents, and is 28 insisting that Plaintiff stipulate to a protective order before it will produce anything. Pursuant to MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO COMPEL 3 1 C.C.P. 2031.060 (b)5, a party to whom a request for production of documents is sent can seek a 2 protective order asking the court to order “that a trade secret or other confidential research, 3 development, or commercial information not be disclosed, or be disclosed only to specified 4 persons or only in a specified way.” Such orders require a showing of good cause by the party 5 seeking the order. Stadish v. Superior Court (1999) 71 Cal.App.4th 1130, 1145. To make the 6 required showing, a party must provide an affidavit or declaration: 7 — listing the declarant's qualifications to give an opinion; 8 — identifying the alleged trade secret; 9 — identifying the documents disclosing the trade secret; and 10 — presenting evidence that the secret qualifies as a “trade secret.” 11 Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2019) ~ 8:1456.8 et seq. 12 13 It is Defendant’s burden to make the required showing as to any documents which it 14 ultimately finds and produces. So far, Plaintiff has not seen any evidence supporting the need for 15 a confidentiality agreement. 16 It is worth noting that instead of producing documents when the extended deadline came, 17 Defendant sent the proposed agreement. Defense counsel could easily have suggested the 18 agreement at or before the time the extension was requested, so that this issue might be settled in 19 advance of the production date, and counsel must have known that they were going to seek the 20 order. 21 Plaintiff is entitled to these documents since they directly relate to the issues in this 22 action, are admissible evidence, and are certainly likely to lead to the discovery of admissible 23 evidence. Many of the responses to requests for production state that “Defendant is continuing to 24 search for responsive documents and will provide supplemental responses within 21 days.” This 25 is a clear example of discovery abuse: the objections are not tailored to the requests, and 26 Defendant has attempted to give itself an additional 21-day extension. This type of conduct 27 subjects Defendant to sanctions, as it cannot be justified as reasonable. 28 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO COMPEL 4 1 MEET AND CONFER EFFORTS 2 On February 28th, Plaintiff’s counsel wrote to Erica Summan in an effort to meet and 3 confer regarding the discovery responses received from Defendant. In the February 28th email, 4 Mr. Callaway stated that he would wait until Friday, March 6th, to file a motion. The email 5 detailed all of the responses which Mr. Callaway contended were deficient. Mr. Callaway also 6 sent a fax to Ms. Summan on Monday, March 2nd. Ms. Summan sent Mr. Callaway an email on 7 March 4th stating that she is “working on drafting amended responses and am speaking with my 8 client regarding which amendments to make. I am willing to extend the motion to compel 9 deadline as I work on getting the amended responses to you.” 10 Mr. Callaway replied to the March 4 email that same day, saying that: 11 Unilaterally generating amended responses which only partially address the concerns I have raised will not resolve this dispute. 12 Generating a new set of responses unilaterally does not satisfy your duty to meet and confer over these issues, unless you are 13 planning to fully comply with everything I raised in my meet and confer email to you. I am not willing to delay this process further 14 with an extension of time to file a motion. I am seeking substantive responses, not an extension of time. I will file the motion on Friday 15 unless this matter is fully resolved. 16 On March 5th, Ms. Summan sent Mr. Callaway a one-line email stating ”we will provide 17 substantive responses to all issues you raised in your meet and confer email regarding Defendant 18 Walgreen’s discovery responses.” Despite the lack of any time frame in which these additional 19 responses would be received, Mr. Callaway waited until the close of business Friday, March 6th, 20 to see if additional responses would be sent, but nothing else arrived, so this motion was filed on 21 the following Monday. 22 23 PLAINTIFF IS ENTITLED TO REASONABLE COSTS IN PURSUING THIS MOTION, WHETHER OR NOT RESPONSES ARE PROVIDED PRIOR TO THE HEARING. 24 25 Failing to respond or to submit to an authorized method of discovery is listed in 26 Paragraph (d) of California Code of Civil Procedure Section 2023.010 as an act constituting 27 misuse of discovery process. California Code of Civil Procedure Section 2023.030(a) provides 28 that the court may impose a monetary sanction ordering that one engaging in the misuse of the MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO COMPEL 5 1 discovery process ... pay the reasonable expenses, including attorney's fees, incurred by anyone 2 as a result of that conduct. 3 Cal. Rules of Court, rule 3.1030(a) states as follows: 4 The court may award sanctions under the Discovery Act in favor of a party who files a motion to compel discovery, even though . . . 5 the requested discovery was provided to the moving party after the motion was filed. 6 7 Discovery is intended to be self-executing. A motion should not be necessary to elicit 8 appropriate responses. See Clement v. Alegre, 177 Cal.App.4th 1277, 1281 (2009); see also 9 Townsend v. Superior Court, 61 Cal.App.4th 1431 (1998). 10 As set forth in the Declaration of R. Boone Callaway, he has expended a total of 3.8 11 hours preparing this motion, incurring fees of $1,520, based on an hourly rate of $400, in its 12 preparation. Filing fees in the amount of $74 will also be incurred, which does not include 13 delivery of courtesy copied to Department 302, or a reply to an anticipated opposition. Also, 14 additional time will be necessary to attend any hearing of this motion. Plaintiff requests that the 15 court order defense counsel Erica Summan to pay the reasonable expenses and attorney's fees for 16 the preparation and filing of this motion. 17 18 V. CONCLUSION 19 Defendant has not participated in any substantive way in Plaintiff’s efforts to meet and 20 confer. There has been no letter or call addressing the concerns Mr. Callaway raised in his email. 21 Perhaps the reason is that there is no defense or legitimate explanation for the utter disregard of 22 the discovery rules. This is not a case of good-faith differences in what is fair or reasonable. 23 These replies, with their boilerplate objections and statements that discovery is ongoing and 24 Defendant is still searching for things are indefensible. As of the date this motion is filed, no 25 additional responses have been received, and defense counsel have not given any date by which 26 anything further can be expected. 27 Based upon the foregoing argument and authorities, Plaintiff requests that the court order 28 Defendant to fully respond without objections to all of the discovery listed in the separate MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO COMPEL 6 1 statement herein within five (5) days of any court order, and award Plaintiff monetary sanctions 2 against defendant Walgreen Co. and its counsel in an amount to be determined at the hearing, for 3 the reasonable expenses, including filing and attorney’s fees, for the preparation and necessary 4 time spent at the hearing of this motion. 5 6 Respectfully submitted, 7 Dated: March 9, 2020 CALLAWAY & WOLF 8 9 By: ______________________________ R. Boone Callaway 10 Attorneys for Plaintiff 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO COMPEL 7 PROOF OF SERVICE Knight vs. Walgreen Co. 3 I am over the age ofeighteen years and am not a party to this action. I am a resident of, or employed in the City and County of San Francisco. My business address is 150 Post Street, Suite 4 600, San Francisco, CA 94108. On March 9,2020,1 served the document(s)described as: 6 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR ORDER TO COMPEL RESPONSES TO 7 INTERROGATORIES; RESPONSES TO REQUEST FOR PRODUCTION OF DOCUMENTS,AND FOR PRODUCTION OF DOCUMENTS; AND 8 FOR MONETARY SANCTIONS 9 □ by Court approved electronic service File & Serve Xpress to the person listed on the Transmission Receipt located on the vendor's website. 10 □ by personally delivering a copy thereof to the person at the address below. 11 □ by causing personal delivery of a copy thereof, by an agent of a messenger 12 service, to Ae person at the address below. 13 □ by enclosing a copy thereof in a box or other facility regularly maintained by an express service carrier, or delivered to a courier/driver authorized by the express 14 carrier to receive documents, in an envelope designated by the express carrier, with delivery fees paid or provided for, to the person at the address below. / by enclosing a copy thereof in a sealed envelope with postage fully prepaid and 16 placed for collection and mailing by the United States Postal Service, following our ordinaty business practices, to the person at the address below. 1 am readily 17 familiar with this business's practice for processing correspondence for mailing. 18 19 Erica Summan BURNHAM BROWN 20 1901 Harrison Street, Suite 1400 Oakland, CA 94612 21 Kristina Fedroso 22 WOOD, SMITH, HENNING 1401 Willow Pass Road, Suite 700 23 Concord, California 94520 24 1 declare under penalty of perjury that the foregoing is true and correct. Executed on 25 March 9,2020, at San Francisco, California. 26 27 28 PROOF OF SERVICE [C.C.P. §1013]