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ELECTRONICALLY FILED
Superior Court of California
County of Santa Barbara
1 JASON H. ANDERSON, State Bar No. 172087 Darrel E. Parker, Executive Officer
janderson@stradlinglaw.com 5/27/2022 5:10 PM
2 ANDREW B. MASON, State Bar No. 317944 By: Jazmine Killian, Deputy
amason@stradlinglaw.com
3 STRADLING YOCCA CARLSON & RAUTH
A PROFESSIONAL CORPORATION
4 660 Newport Center Drive, Suite 1600
Newport Beach, CA 92660-6422
5 Telephone: 949 725 4000
Facsimile: 949 725 4100
6
Attorneys for Plaintiff
7 THOMAS KOPITNIK
8 SUPERIOR COURT OF THE STATE OF CALIFORNIA
9 FOR THE COUNTY OF SANTA BARBARA - COOK
10 THOMAS KOPITNIK, an individual, CASE NO. 21CV02266
11 Plaintiff, Honorable James F Rigali.
Dept. SM2
12 vs.
PLAINTIFF THOMAS KOPITNIK’S
13 CLEARVIEW PROPERTY SERVICES, INC. a NOTICE OF MOTION AND MOTION
California corporation; CHRISTOPHER TO COMPEL DEFENDANT
14 HULME, and individual; and, DOES CLEARVIEW’S COMPLIANCE
1,THROUGH 10, WITH ITS RESPONSE TO REQUEST
15 FOR PRODUCTION NO. 4;
Defendants. MEMORANDUM OF POINTS AND
16 AUTHORITIES
17 [Filed concurrently with Declaration of
Andrew B. Mason, Separate Statement,
18 and Proposed Order]
19 Hearing:
Date: June 28, 2022
20 Time: 8:30 a.m.
Location: Dept. SM2
21 312-C East Cook Street
Santa Maria, CA 93454
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Complaint Filed: June 8, 2021
23 Trial Date: October 31, 2022
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LAWYERS MOTION TO COMPEL COMPLIANCE WITH REQUEST FOR PRODUCTION NO. 4
21CV02266
NEWPORT BEACH
1 NOTICE OF MOTION
2 TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:
3 PLEASE TAKE NOTICE that on June 28, 2022, at 8:30 a.m. or as soon thereafter as
4 the matter may be heard, in Department 2 of the Santa Barbara Superior Court – Cook
5 Division, located at 312-C East Cook Street, Santa Maria, CA 93454, Plaintiff Thomas
6 Kopitnik will and hereby does move pursuant to Code of Civil Procedure Section 2031.320 for
7 an order compelling Defendant Clearview Property Services, Inc.’s full compliance with its
8 response to Plaintiff’s Request for Production No. 4 seeking all communications regarding the
9 large scale, landscape construction project at the center of this lawsuit. Good cause exists for
10 the requested order because Defendant’s partial production to date included some text
11 messages with the images of the status of Defendant’s landscape contractor work on Plaintiff’s
12 property imbedded in and delivered with the text messages, but also included other text
13 messages with a only a “Tap to Download” icon reflecting that an image should have been but
14 was not included in Defendant’s production. Plaintiff alleges Defendant negligently performed
15 its landscape contractor services resulting in defective work product on Plaintiff’s property.
16 These text messages with the images imbedded in and delivered with the text messages are
17 likely to prove or disprove several key allegations and claims in this case.
18 This Motion is based upon this Notice of Motion and supporting Memorandum, the
19 Separate Statement filed concurrently herewith, the Declaration of Andrew Mason with
20 exhibits, the complete files and records of this action, and on such other matters as may
21 properly be brought before the Court.
DATED: May 27, 2022 STRADLING YOCCA CARLSON & RAUTH
22 A Professional Corporation
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24 By:
Jason H. Anderson
25 Andrew B. Mason
Attorneys for Plaintiff THOMAS KOPITNIK
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NOTICE OF MOTION AND MOTION TO COMPEL COMPLIANCE WITH REQUEST FOR PRODUCTION NO. 4
21CV02266
1 I. INTRODUCTION
2 Plaintiff seeks an order compelling Defendant Clearview Property Services, Inc.
3 (“Clearview”) to fully comply with its agreement to produce all non-privileged text messages
4 relating to Defendants’ landscape construction work on Plaintiff’s property with the images of
5 Defendants’ work imbedded and delivered with the text messages. After agreeing to produce
6 all non-privileged communications relating to the landscape project, Defendant Clearview’s
7 first two productions contained screenshots of only select text messages. Some of the
8 screenshots of the text messages also included copies of the images that were delivered with
9 the text messages. However, Defendant Clearview also produced screenshots of numerous,
10 other text messages with a copy of a “Tap to Download” icon instead of the image itself
11 thereby reflecting that whoever took the screenshot of the text message chose not to download
12 the image before screenshotting it and producing it to Plaintiff.
13 Following further meet and confer discussions, Defendant Clearview agreed to use the
14 same software tool Plaintiff Kopitnik used to collect and produce his text messages in order to
15 collect all of its responsive text messages from all applicable custodians. Defendant Clearview
16 thereafter produced a substantial amount of additional, responsive text messages that were not
17 included in its prior, screenshot productions, including texts between Defendant Hulme and
18 numerous employees of Defendant Clearview who worked on the project. However,
19 Defendant Clearview’s production of the text messages using the software tool is still missing
20 copies of numerous imbedded images that were clearly delivered with the text messages,
21 including missing images that are expressly referred to in the written portion of the text
22 messages, and Defendant Clearview’s prior, screen shot productions clearly reflect that those
23 images exist, or at least at one time existed during the pendency of this litigation.
24 There is good cause for an order compelling production of all responsive text
25 communications with copies of any imbedded images delivered with the text messages because
26 Plaintiff alleges Defendants negligently and defectively designed and constructed a large scale
27 landscape construction project on his property and, with the context of the written portion of
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1 the text messages often times expressly referring to the missing, imbedded images, those
2 pictures will tell a thousand words.
3 II. SUMMARY OF RELEVANT FACTS
4 A. Plaintiff Kopitnik’s Allegations Relevant to This Discovery Dispute
5 Plaintiff Kopitnik alleges Defendant Christopher Hulme (“Hulme”) intentionally
6 misrepresented the contractor’s licensure status of his landscape construction company,
7 Defendant Clearview Property Services, Inc., (“Clearview”) as well as his skill, knowledge and
8 prior experience in order to induce Plaintiff to sign a contract to design and construct a large
9 scale, complex project on Plaintiff’s 360 acre ranch pursuant to which Plaintiff paid
10 Defendants nearly $1 million for what turned out to be negligent and defective work product.
11 (FAC ¶¶ 1, 15-20.)
12 A large component of the project involved digging a series of trenches in which
13 Defendants installed hundreds of feet of expensive rock wall purportedly supported by
14 drainage and irrigation systems to protect against flooding and landslides on the steep slope of
15 Plaintiff’s property. Plaintiff alleges — and what the imbedded images may further prove — is
16 that most of the rock walls lack necessary footers, Defendants constructed the walls over their
17 own trash, and large portions of the rocks are already beginning to break off the walls because
18 they were not properly installed. (See, e.g., id. ¶¶ 29-31, 49.) Further, the drainage and
19 irrigation systems were installed improperly resulting in substantial pooling and flooding and
20 further damage to the walls and surrounding areas.
21 B. Defendant Clearview’s Multiple Responses to Meet And Confer Efforts
22 Demonstrate That It Still Has Not Fully Complied With Its Agreement To
23 Fully Produce The Text Messages
24 On July 21, 2021, nearly a year ago, Plaintiff served on Defendant Clearview a Request
25 For Production (Set One). (Mason Decl. ¶ 3, Ex. 2.) Request No. 4 seeks “all
26 communications” related to the project. (Id.)
27 On August 31, 2021, Defendant Clearview served a verified, written response to
28 Plaintiff’s a Request For Production (Set One). (Mason Decl. ¶ 4, Ex. 3.) With regards to
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1 Request No. 4, Defendant Clearview asserted a number of objections and claims of privilege
2 without identifying a single document withheld on the basis of those objections and claims of
3 privilege. Subject to these objections, Defendant Clearview agreed to produce all “non-
4 privileged” documents which it then attached to its written response. (Id.)
5 On its face, Defendant Clearview’s original, written response was improper because it
6 did not identify any documents withheld on the basis of the asserted objections and the claims
7 of privilege. Moreover, the production itself was obviously incomplete as there were no text
8 communications between Defendant Hulme and his employees and third party contractors
9 regarding the project, which Plaintiff knew existed. The completeness of Defendant
10 Clearview’s production was further called into question when later searching his own text
11 messages in response to Defendant’s request for Plaintiff’s text messages, Plaintiff discovered
12 Defendant Clearview had failed to produce numerous text messages between Defendant Chris
13 Hulme and Plaintiff and Plaintiff’s wife regarding the project. (Mason Decl. ¶ 8.)
14 For example, below is an excerpt of a text message between Plaintiff, Plaintiff’s wife
15 Tami Kopitnik, and Defendant Hulme regarding the construction of what has turned out be
16 defective rock walls that was not included in Defendant Clearview’s original, August 2021
17 production:
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27 (Mason Decl. ¶ 8, Ex. 7 [highlight added]); (see also id. ¶ 9, Ex. 8 [email from Plaintiff’s
28 counsel to Defendant Clearview’s counsel highlighting missing text messages.)
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1 Following meet and confer efforts, Defendant served a “Further” written response to
2 Request No. 4 on February 2, 2022. In its further written response, Defendant Clearview
3 agreed to “produce all documents or things in the demanded category. . . to which no objection
4 is being made,” it identified two reports and 132 photographs taken by its consultant as
5 withheld from its production on the basis of objection or privilege, and it represented “No other
6 documents are being withheld on the basis of any privilege or objection.” (Mason Decl. ¶ 5,
7 Ex. 4.)
8 Defendant Clearview also produced screen shots of additional text messages
9 concerning the project that were not contained in its original production, including text
10 messages between Defendant Chris Hulme and Filiberto Martinez, Defendant Clearview’s
11 project manager for the project on Plaintiff’s property. The screenshots of text messages with
12 Mr. Martinez produced by Defendant Clearview were incomplete because although some
13 contained copies of the images delivered with the texts, numerous images were missing from
14 the texts and, instead, referenced a “Tap to Download” icon reflecting that whoever screen
15 shotted the text message chose not to download the picture before taking the screenshot and
16 producing it to Plaintiff. (Mason Decl. ¶¶ 6-7, Exs. 5-6.)
17 For example, below is a screenshot of a text message between Defendant Clearview
18 employee Filiberto Martinez and Defendant Hulme produced by Defendant Clearview on
19 February 2, 2022 which contains both an imbedded picture and a “Tap to Download” icon:
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1 (Mason Decl. ¶ 6, Ex. 5.)
2 Defendant Clearview’s second, February 2, 2022 production was also incomplete
3 because it only contained text messages between Defendant Hulme and Clearview employee
4 Filiberto Martinez. (Id.) Given Plaintiff was aware of several other employees having a role at
5 the project, including Defendant Clearview’s employee Kevin Downs, Plaintiff demanded, and
6 Defendant Clearview agreed, to search for additional, responsive text messages from additional
7 custodians. (Mason Decl. ¶¶ 9-10, Exs. 8-9.) Defendant Clearview also agreed to collect and
8 re-collect and produce the text messages, including the pictures imbedded in and delivered
9 with the text messages, using the same software tool (DeceipherText) Plaintiff had used to
10 collect and produce his text messages in response to Defendant’s document requests. (Id.)
11 As an example, below is an image of a text message with the imbedded picture that
12 Plaintiff Kopitnik collected using the Decipher software tool and produced to Defendant
13 Clearview in this case:
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25 (Mason Decl. ¶ 8, Ex. 7.)
26 On March 22 and April 6, 2022, following further meet and confer efforts, Defendant
27 Clearview served an “Amended” and “Second Amended” written response to Request No. 4.
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1 (Mason Decl. ¶¶ 10, 12) Substantively, Defendant Clearview did not modify its agreement to
2 make a full and complete production of all non-privileged text messages concerning the project
3 or its representation that it was not withholding any other documents on the basis of its
4 objections or claims of privilege. At the same time, using the Decipher software tool,
5 Defendant Clearview made two more productions, including a substantial number of
6 additional, relevant text messages between Defendant Clearview and its other employees and
7 other third parties that were not included in its prior two, screenshot productions. (Mason
8 Decl. ¶ 12, Ex. 10.) Once again, Defendant Clearview’s prior searches for responsive text
9 messages was called into question given the revelation that Defendant had previously failed to
10 produce hundreds of responsive text messages. More problematic, however, Defendant
11 Clearview’s supplemental productions did not include the imbedded pictures that the parties
12 know exist, or know previously existed during the pendency of this lawsuit, given Defendant’s
13 prior production of screen shots of these same text messages containing the “Tap to
14 Download” symbol. In fact, unlike the previous productions that had been screenshots of text
15 messages, the April 6, 2022 production of text messages using the software tool contained no
16 pictures at all. (Mason Decl. ¶ 12, Ex. 10.)
17 For example, below is an excerpt of text messages from Defendant Clearview’s April 6,
18 2022 production using the DecipherText software tool which should have 1, but did not contain
19 one or more imbedded pictures:
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Notably, this version without any images is the same portion of the text messages between
27 Filiberto Martinez and Chris Hulme that was previously produced as a screenshot (see page 8,
supra.) and that contained a picture imbedded in the text message and a “Tap to Download”
28 icon..
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9 (Mason Decl. ¶ 14, Ex. 12); (see also id. ¶ 15, Ex. 13 [showing Defendant Hulme commenting
10 on missing images].)
11 Plaintiff has made numerous attempts to obtain Defendant’s voluntary compliance with its
12 agreement to fully and completely produce all responsive text messages with the imbedded images
13 without success. (See Mason Decl., Exs. 6, 8, 11, 14, 15, 16, 17.)
14 III. LEGAL ARGUMENT
15 When a party agrees to produce documents in response to an inspection demand and
16 then fails to do so, the appropriate motion is a motion to compel compliance. Code Civ. Proc.
17 §2031.320. There is no meet and confer requirement and all that has to be shown is the
18 responding party’s failure to comply as agreed. Standon Co., Inc. v. Superior Court, 225 CA3d
19 898, 903 (1990).
20 As demonstrated above, Defendant Clearview has only partially produced responsive
21 text messages and has not fully and completely complied with its agreement to produce all
22 such text messages. Specifically, Defendant Clearview has produced numerous text messages
23 without the images imbedded in and delivered with the text messages despite the fact the
24 parties know from Defendant Clearview’s own, prior production of screenshots of these text
25 messages that such images exist, or least used to exist during the pendency of this lawsuit.
26 ///
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1 IV. CONCLUSION
2 For the above reasons, Plaintiff respectfully requests the Court to enter an Order
3 compelling Defendant Clearview to fully comply with its agreement to produce all responsive
4 text messages, including with copies of the images imbedded in and delivered with the text
5 messages within ten (10) days of its Order.
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DATED: May 27, 2022 STRADLING YOCCA CARLSON & RAUTH
7 A Professional Corporation
8
9 By:
Jason H. Anderson
10 Andrew B. Mason
Attorneys for Plaintiff THOMAS KOPITNIK
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PROOF OF SERVICE
1
STATE OF CALIFORNIA )
2 ) ss
COUNTY OF ORANGE )
3
I am employed by Stradling Yocca Carlson & Rauth A Professional Corporation in the
4 County of Orange, State of California. I am over the age of 18 and not a party to the within
action. My business address is: 660 Newport Center Drive, Suite 1600, Newport Beach, CA
5 92660-6422. On May 27, 2022, I served the within documents:
6 PLAINTIFF THOMAS KOPITNIK’S NOTICE OF MOTION AND MOTION TO
COMPEL DEFENDANT CLEARVIEW’S COMPLIANCE WITH ITS RESPONSE TO
7 REQUEST FOR PRODUCTION NO. 4; MEMORANDUM OF POINTS AND
AUTHORITIES
8
By email or electronic transmission. Based on a court order or an agreement of the parties to
9 accept service by electronic transmission, I caused a copy of the document(s) to be sent from
10 e-mail address kmilanowski@stradlinglaw.com to the person(s) at the email address(es) listed
in the Service List. I did not receive, within a reasonable time after the transmission, any
11 electronic message or other indication that the transmission was unsuccessful.
12 Sheila E. Fix Attorneys for Defendants
S. Joanna Dyriam CHRISTOPHER HULME and
13 WOOD, SMITH HENNING & BERMAN LLP CLEARVIEW PROPERTY
2815 Townsgate Road, Suite 215 SERVICES, INC.
14 Thousand Oaks, CA 91361-5827
Telephone: (820) 333-4233
15 Facsimile: (820) 333-4249
Email: sfix@wshblaw.com
16 sdyriam@wshblaw.com
17 Cc: Allie S. Sayle; ASayle@wshblaw.com
18
19 I declare that I am employed in the office of a member of the bar of this court whose
direction the service was made. I declare under penalty of perjury under the laws of the State of
20 California that the above is true and correct.
21 Executed on May 27, 2022at Newport Beach, California
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By:
24 Kayla Milanowski
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ELECTRONICALLY FILED Superior Court of California County of Santa Barbara 1 JASON H. ANDERSON, State Bar No. 172087 Darrel E. Parker, Executive Officer janderson@stradlinglaw.com 5/27/2022 5:10 PM 2 ANDREW B. MASON, State Bar No. 317944 By: Jazmine Killian, Deputy amason@stradlinglaw.com 3 STRADLING YOCCA CARLSON & RAUTH A PROFESSIONAL CORPORATION 4 660 Newport Center Drive, Suite 1600 Newport Beach, CA 92660-6422 5 Telephone: 949 725 4000 Facsimile: 949 725 4100 6 Attorneys for Plaintiff 7 THOMAS KOPITNIK 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 FOR THE COUNTY OF SANTA BARBARA - COOK 10 THOMAS KOPITNIK, an individual, CASE NO. 21CV02266 11 Plaintiff, Honorable James F Rigali. Dept. SM2 12 vs. PLAINTIFF THOMAS KOPITNIK’S 13 CLEARVIEW PROPERTY SERVICES, INC. a NOTICE OF MOTION AND MOTION California corporation; CHRISTOPHER TO COMPEL DEFENDANT 14 HULME, and individual; and, DOES CLEARVIEW’S COMPLIANCE 1,THROUGH 10, WITH ITS RESPONSE TO REQUEST 15 FOR PRODUCTION NO. 4; Defendants. MEMORANDUM OF POINTS AND 16 AUTHORITIES 17 [Filed concurrently with Declaration of Andrew B. Mason, Separate Statement, 18 and Proposed Order] 19 Hearing: Date: June 28, 2022 20 Time: 8:30 a.m. Location: Dept. SM2 21 312-C East Cook Street Santa Maria, CA 93454 22 Complaint Filed: June 8, 2021 23 Trial Date: October 31, 2022 24 25 26 27 28 S TRADLING Y OCCA -1- C ARLSON & R AUTH LAWYERS MOTION TO COMPEL COMPLIANCE WITH REQUEST FOR PRODUCTION NO. 4 21CV02266 NEWPORT BEACH 1 NOTICE OF MOTION 2 TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD: 3 PLEASE TAKE NOTICE that on June 28, 2022, at 8:30 a.m. or as soon thereafter as 4 the matter may be heard, in Department 2 of the Santa Barbara Superior Court – Cook 5 Division, located at 312-C East Cook Street, Santa Maria, CA 93454, Plaintiff Thomas 6 Kopitnik will and hereby does move pursuant to Code of Civil Procedure Section 2031.320 for 7 an order compelling Defendant Clearview Property Services, Inc.’s full compliance with its 8 response to Plaintiff’s Request for Production No. 4 seeking all communications regarding the 9 large scale, landscape construction project at the center of this lawsuit. Good cause exists for 10 the requested order because Defendant’s partial production to date included some text 11 messages with the images of the status of Defendant’s landscape contractor work on Plaintiff’s 12 property imbedded in and delivered with the text messages, but also included other text 13 messages with a only a “Tap to Download” icon reflecting that an image should have been but 14 was not included in Defendant’s production. Plaintiff alleges Defendant negligently performed 15 its landscape contractor services resulting in defective work product on Plaintiff’s property. 16 These text messages with the images imbedded in and delivered with the text messages are 17 likely to prove or disprove several key allegations and claims in this case. 18 This Motion is based upon this Notice of Motion and supporting Memorandum, the 19 Separate Statement filed concurrently herewith, the Declaration of Andrew Mason with 20 exhibits, the complete files and records of this action, and on such other matters as may 21 properly be brought before the Court. DATED: May 27, 2022 STRADLING YOCCA CARLSON & RAUTH 22 A Professional Corporation 23 24 By: Jason H. Anderson 25 Andrew B. Mason Attorneys for Plaintiff THOMAS KOPITNIK 26 27 28 S TRADLING Y OCCA -2- C ARLSON & R AUTH LAWYERS NEWPORT BEACH NOTICE OF MOTION AND MOTION TO COMPEL COMPLIANCE WITH REQUEST FOR PRODUCTION NO. 4 21CV02266 1 I. INTRODUCTION 2 Plaintiff seeks an order compelling Defendant Clearview Property Services, Inc. 3 (“Clearview”) to fully comply with its agreement to produce all non-privileged text messages 4 relating to Defendants’ landscape construction work on Plaintiff’s property with the images of 5 Defendants’ work imbedded and delivered with the text messages. After agreeing to produce 6 all non-privileged communications relating to the landscape project, Defendant Clearview’s 7 first two productions contained screenshots of only select text messages. Some of the 8 screenshots of the text messages also included copies of the images that were delivered with 9 the text messages. However, Defendant Clearview also produced screenshots of numerous, 10 other text messages with a copy of a “Tap to Download” icon instead of the image itself 11 thereby reflecting that whoever took the screenshot of the text message chose not to download 12 the image before screenshotting it and producing it to Plaintiff. 13 Following further meet and confer discussions, Defendant Clearview agreed to use the 14 same software tool Plaintiff Kopitnik used to collect and produce his text messages in order to 15 collect all of its responsive text messages from all applicable custodians. Defendant Clearview 16 thereafter produced a substantial amount of additional, responsive text messages that were not 17 included in its prior, screenshot productions, including texts between Defendant Hulme and 18 numerous employees of Defendant Clearview who worked on the project. However, 19 Defendant Clearview’s production of the text messages using the software tool is still missing 20 copies of numerous imbedded images that were clearly delivered with the text messages, 21 including missing images that are expressly referred to in the written portion of the text 22 messages, and Defendant Clearview’s prior, screen shot productions clearly reflect that those 23 images exist, or at least at one time existed during the pendency of this litigation. 24 There is good cause for an order compelling production of all responsive text 25 communications with copies of any imbedded images delivered with the text messages because 26 Plaintiff alleges Defendants negligently and defectively designed and constructed a large scale 27 landscape construction project on his property and, with the context of the written portion of 28 S TRADLING Y OCCA -3- C ARLSON & R AUTH LAWYERS NEWPORT BEACH MEMORANDUM OF POINTS AND AUTHORITIES 21CV02266 1 the text messages often times expressly referring to the missing, imbedded images, those 2 pictures will tell a thousand words. 3 II. SUMMARY OF RELEVANT FACTS 4 A. Plaintiff Kopitnik’s Allegations Relevant to This Discovery Dispute 5 Plaintiff Kopitnik alleges Defendant Christopher Hulme (“Hulme”) intentionally 6 misrepresented the contractor’s licensure status of his landscape construction company, 7 Defendant Clearview Property Services, Inc., (“Clearview”) as well as his skill, knowledge and 8 prior experience in order to induce Plaintiff to sign a contract to design and construct a large 9 scale, complex project on Plaintiff’s 360 acre ranch pursuant to which Plaintiff paid 10 Defendants nearly $1 million for what turned out to be negligent and defective work product. 11 (FAC ¶¶ 1, 15-20.) 12 A large component of the project involved digging a series of trenches in which 13 Defendants installed hundreds of feet of expensive rock wall purportedly supported by 14 drainage and irrigation systems to protect against flooding and landslides on the steep slope of 15 Plaintiff’s property. Plaintiff alleges — and what the imbedded images may further prove — is 16 that most of the rock walls lack necessary footers, Defendants constructed the walls over their 17 own trash, and large portions of the rocks are already beginning to break off the walls because 18 they were not properly installed. (See, e.g., id. ¶¶ 29-31, 49.) Further, the drainage and 19 irrigation systems were installed improperly resulting in substantial pooling and flooding and 20 further damage to the walls and surrounding areas. 21 B. Defendant Clearview’s Multiple Responses to Meet And Confer Efforts 22 Demonstrate That It Still Has Not Fully Complied With Its Agreement To 23 Fully Produce The Text Messages 24 On July 21, 2021, nearly a year ago, Plaintiff served on Defendant Clearview a Request 25 For Production (Set One). (Mason Decl. ¶ 3, Ex. 2.) Request No. 4 seeks “all 26 communications” related to the project. (Id.) 27 On August 31, 2021, Defendant Clearview served a verified, written response to 28 Plaintiff’s a Request For Production (Set One). (Mason Decl. ¶ 4, Ex. 3.) With regards to S TRADLING Y OCCA -4- C ARLSON & R AUTH LAWYERS NEWPORT BEACH MEMORANDUM OF POINTS AND AUTHORITIES 21CV02266 1 Request No. 4, Defendant Clearview asserted a number of objections and claims of privilege 2 without identifying a single document withheld on the basis of those objections and claims of 3 privilege. Subject to these objections, Defendant Clearview agreed to produce all “non- 4 privileged” documents which it then attached to its written response. (Id.) 5 On its face, Defendant Clearview’s original, written response was improper because it 6 did not identify any documents withheld on the basis of the asserted objections and the claims 7 of privilege. Moreover, the production itself was obviously incomplete as there were no text 8 communications between Defendant Hulme and his employees and third party contractors 9 regarding the project, which Plaintiff knew existed. The completeness of Defendant 10 Clearview’s production was further called into question when later searching his own text 11 messages in response to Defendant’s request for Plaintiff’s text messages, Plaintiff discovered 12 Defendant Clearview had failed to produce numerous text messages between Defendant Chris 13 Hulme and Plaintiff and Plaintiff’s wife regarding the project. (Mason Decl. ¶ 8.) 14 For example, below is an excerpt of a text message between Plaintiff, Plaintiff’s wife 15 Tami Kopitnik, and Defendant Hulme regarding the construction of what has turned out be 16 defective rock walls that was not included in Defendant Clearview’s original, August 2021 17 production: 18 19 20 21 22 23 24 25 26 27 (Mason Decl. ¶ 8, Ex. 7 [highlight added]); (see also id. ¶ 9, Ex. 8 [email from Plaintiff’s 28 counsel to Defendant Clearview’s counsel highlighting missing text messages.) S TRADLING Y OCCA -5- C ARLSON & R AUTH LAWYERS NEWPORT BEACH MEMORANDUM OF POINTS AND AUTHORITIES 21CV02266 1 Following meet and confer efforts, Defendant served a “Further” written response to 2 Request No. 4 on February 2, 2022. In its further written response, Defendant Clearview 3 agreed to “produce all documents or things in the demanded category. . . to which no objection 4 is being made,” it identified two reports and 132 photographs taken by its consultant as 5 withheld from its production on the basis of objection or privilege, and it represented “No other 6 documents are being withheld on the basis of any privilege or objection.” (Mason Decl. ¶ 5, 7 Ex. 4.) 8 Defendant Clearview also produced screen shots of additional text messages 9 concerning the project that were not contained in its original production, including text 10 messages between Defendant Chris Hulme and Filiberto Martinez, Defendant Clearview’s 11 project manager for the project on Plaintiff’s property. The screenshots of text messages with 12 Mr. Martinez produced by Defendant Clearview were incomplete because although some 13 contained copies of the images delivered with the texts, numerous images were missing from 14 the texts and, instead, referenced a “Tap to Download” icon reflecting that whoever screen 15 shotted the text message chose not to download the picture before taking the screenshot and 16 producing it to Plaintiff. (Mason Decl. ¶¶ 6-7, Exs. 5-6.) 17 For example, below is a screenshot of a text message between Defendant Clearview 18 employee Filiberto Martinez and Defendant Hulme produced by Defendant Clearview on 19 February 2, 2022 which contains both an imbedded picture and a “Tap to Download” icon: 20 21 22 23 24 25 26 27 28 S TRADLING Y OCCA -6- C ARLSON & R AUTH LAWYERS NEWPORT BEACH MEMORANDUM OF POINTS AND AUTHORITIES 21CV02266 1 (Mason Decl. ¶ 6, Ex. 5.) 2 Defendant Clearview’s second, February 2, 2022 production was also incomplete 3 because it only contained text messages between Defendant Hulme and Clearview employee 4 Filiberto Martinez. (Id.) Given Plaintiff was aware of several other employees having a role at 5 the project, including Defendant Clearview’s employee Kevin Downs, Plaintiff demanded, and 6 Defendant Clearview agreed, to search for additional, responsive text messages from additional 7 custodians. (Mason Decl. ¶¶ 9-10, Exs. 8-9.) Defendant Clearview also agreed to collect and 8 re-collect and produce the text messages, including the pictures imbedded in and delivered 9 with the text messages, using the same software tool (DeceipherText) Plaintiff had used to 10 collect and produce his text messages in response to Defendant’s document requests. (Id.) 11 As an example, below is an image of a text message with the imbedded picture that 12 Plaintiff Kopitnik collected using the Decipher software tool and produced to Defendant 13 Clearview in this case: 14 15 16 17 18 19 20 21 22 23 24 25 (Mason Decl. ¶ 8, Ex. 7.) 26 On March 22 and April 6, 2022, following further meet and confer efforts, Defendant 27 Clearview served an “Amended” and “Second Amended” written response to Request No. 4. 28 S TRADLING Y OCCA -7- C ARLSON & R AUTH LAWYERS NEWPORT BEACH MEMORANDUM OF POINTS AND AUTHORITIES 21CV02266 1 (Mason Decl. ¶¶ 10, 12) Substantively, Defendant Clearview did not modify its agreement to 2 make a full and complete production of all non-privileged text messages concerning the project 3 or its representation that it was not withholding any other documents on the basis of its 4 objections or claims of privilege. At the same time, using the Decipher software tool, 5 Defendant Clearview made two more productions, including a substantial number of 6 additional, relevant text messages between Defendant Clearview and its other employees and 7 other third parties that were not included in its prior two, screenshot productions. (Mason 8 Decl. ¶ 12, Ex. 10.) Once again, Defendant Clearview’s prior searches for responsive text 9 messages was called into question given the revelation that Defendant had previously failed to 10 produce hundreds of responsive text messages. More problematic, however, Defendant 11 Clearview’s supplemental productions did not include the imbedded pictures that the parties 12 know exist, or know previously existed during the pendency of this lawsuit, given Defendant’s 13 prior production of screen shots of these same text messages containing the “Tap to 14 Download” symbol. In fact, unlike the previous productions that had been screenshots of text 15 messages, the April 6, 2022 production of text messages using the software tool contained no 16 pictures at all. (Mason Decl. ¶ 12, Ex. 10.) 17 For example, below is an excerpt of text messages from Defendant Clearview’s April 6, 18 2022 production using the DecipherText software tool which should have 1, but did not contain 19 one or more imbedded pictures: 20 21 22 23 24 25 26 1 Notably, this version without any images is the same portion of the text messages between 27 Filiberto Martinez and Chris Hulme that was previously produced as a screenshot (see page 8, supra.) and that contained a picture imbedded in the text message and a “Tap to Download” 28 icon.. S TRADLING Y OCCA -8- C ARLSON & R AUTH LAWYERS NEWPORT BEACH MEMORANDUM OF POINTS AND AUTHORITIES 21CV02266 1 2 3 4 5 6 7 8 9 (Mason Decl. ¶ 14, Ex. 12); (see also id. ¶ 15, Ex. 13 [showing Defendant Hulme commenting 10 on missing images].) 11 Plaintiff has made numerous attempts to obtain Defendant’s voluntary compliance with its 12 agreement to fully and completely produce all responsive text messages with the imbedded images 13 without success. (See Mason Decl., Exs. 6, 8, 11, 14, 15, 16, 17.) 14 III. LEGAL ARGUMENT 15 When a party agrees to produce documents in response to an inspection demand and 16 then fails to do so, the appropriate motion is a motion to compel compliance. Code Civ. Proc. 17 §2031.320. There is no meet and confer requirement and all that has to be shown is the 18 responding party’s failure to comply as agreed. Standon Co., Inc. v. Superior Court, 225 CA3d 19 898, 903 (1990). 20 As demonstrated above, Defendant Clearview has only partially produced responsive 21 text messages and has not fully and completely complied with its agreement to produce all 22 such text messages. Specifically, Defendant Clearview has produced numerous text messages 23 without the images imbedded in and delivered with the text messages despite the fact the 24 parties know from Defendant Clearview’s own, prior production of screenshots of these text 25 messages that such images exist, or least used to exist during the pendency of this lawsuit. 26 /// 27 28 S TRADLING Y OCCA -9- C ARLSON & R AUTH LAWYERS NEWPORT BEACH MEMORANDUM OF POINTS AND AUTHORITIES 21CV02266 1 IV. CONCLUSION 2 For the above reasons, Plaintiff respectfully requests the Court to enter an Order 3 compelling Defendant Clearview to fully comply with its agreement to produce all responsive 4 text messages, including with copies of the images imbedded in and delivered with the text 5 messages within ten (10) days of its Order. 6 DATED: May 27, 2022 STRADLING YOCCA CARLSON & RAUTH 7 A Professional Corporation 8 9 By: Jason H. Anderson 10 Andrew B. Mason Attorneys for Plaintiff THOMAS KOPITNIK 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 S TRADLING Y OCCA -10- C ARLSON & R AUTH LAWYERS NEWPORT BEACH MEMORANDUM OF POINTS AND AUTHORITIES 21CV02266 PROOF OF SERVICE 1 STATE OF CALIFORNIA ) 2 ) ss COUNTY OF ORANGE ) 3 I am employed by Stradling Yocca Carlson & Rauth A Professional Corporation in the 4 County of Orange, State of California. I am over the age of 18 and not a party to the within action. My business address is: 660 Newport Center Drive, Suite 1600, Newport Beach, CA 5 92660-6422. On May 27, 2022, I served the within documents: 6 PLAINTIFF THOMAS KOPITNIK’S NOTICE OF MOTION AND MOTION TO COMPEL DEFENDANT CLEARVIEW’S COMPLIANCE WITH ITS RESPONSE TO 7 REQUEST FOR PRODUCTION NO. 4; MEMORANDUM OF POINTS AND AUTHORITIES 8 By email or electronic transmission. Based on a court order or an agreement of the parties to 9 accept service by electronic transmission, I caused a copy of the document(s) to be sent from 10 e-mail address kmilanowski@stradlinglaw.com to the person(s) at the email address(es) listed in the Service List. I did not receive, within a reasonable time after the transmission, any 11 electronic message or other indication that the transmission was unsuccessful. 12 Sheila E. Fix Attorneys for Defendants S. Joanna Dyriam CHRISTOPHER HULME and 13 WOOD, SMITH HENNING & BERMAN LLP CLEARVIEW PROPERTY 2815 Townsgate Road, Suite 215 SERVICES, INC. 14 Thousand Oaks, CA 91361-5827 Telephone: (820) 333-4233 15 Facsimile: (820) 333-4249 Email: sfix@wshblaw.com 16 sdyriam@wshblaw.com 17 Cc: Allie S. Sayle; ASayle@wshblaw.com 18 19 I declare that I am employed in the office of a member of the bar of this court whose direction the service was made. I declare under penalty of perjury under the laws of the State of 20 California that the above is true and correct. 21 Executed on May 27, 2022at Newport Beach, California 22 23 By: 24 Kayla Milanowski 25 26 27 28 S TRADLING Y OCCA -11- C ARLSON & R AUTH LAWYERS NEWPORT BEACH PROOF OF SERVICE