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SUPERIOR COURT OF CALIFORNIA
COUNTY OF SAN FRANCISCO
Document Scanning Lead Sheet
Dec-12-2013 2:42 pm
Case Number: CUD-13-645401
Filing Date: Dec-12-2013 2:42
Filed by: WESLEY G. RAMIREZ
Juke Box: 001 Image: 04307532
OPPOSITION
SBERLO, YOEL, TRUSTEE FOR SBERLO FAMILY TRUST VS. YARNG ALTAWAL
et al
001004307532
Instructions:
Please place this sheet on top of the document to be scanned.Mark Hooshmand, Esq. (SBN 194878)
Hooshmand Law Group p
22 Battery Street, Ste. 610 ior ourt
San Francisco, CA 94111 co COUN Sun
Tel: (415) 318-5709 gan Franc 3
420
Fax: (415) 376-5897 ore qual
Attorney for Defendant Yarng Altawal AE ©
cuen env
COUNTY OF SAN FRANCISCO
YOEL SBERLO, TRUSTEE FOR
SBERLO FAMILY TRUST.
CASE NO.: CUD-13-645401
DEFENDANT YARNG ALTAWAL'S
OPPOSITION TO PLAINTIFF'S DISCOVERY
MOTION WHERE THE PLAINTIFF WAS ONLY|
TO FILE A MOTION TO CONTINUE THE
TRIAL; WHERE THERE HAS BEEN
INSUFFICIENT MEET AND CONFER;
REQUEST FOR MONETARY SANCTIONS,
AGAINST PLAINTIFF YOEL SBERLO AND
PLAINTIFF'S COUNSEL AARON FARMER
AND KAREN UCHIYAMA
Plaintiffs,
vs.
YARNG ALTAWAL,
Defendants.
Date: December 13, 2013
Time: 9:00 a.m.
Department: 611
we SSS SS SS SS SS SSS SD
DEFENDANT YARNG ALTAWAL'S OPPOSITION TO PLAINTIFF'S DISCOVERY
MOTION WHERE THE PLAINTIFF WAS ONLY TO FILE A MOTION TO CONTINUE
THE TRIAL; WHERE THERE HAS BEEN INSUFFICIENT MEET AND CONFER;
REQUEST FOR MONETARY SANCTIONS AGAINST PLAINTIFF YOEL SBERLO AND
PLAINTIFF'S COUNSEL AARON FARMER AND KAREN UCHIYAMA
DEFENDANT YARNG ALTAWAL'S OPPOSITION TO PLAINTIFF'S DISCOVERY MOTION WHERE THE PLAINTIFF
WAS ONLY TO FILE A MOTION TO CONTINUE THE TRIAL; WHERE THERE HAS BEEN INSUFFICIENT MEET
AND CONFER; REQUEST FOR MONETARY SANCTIONS AGAINST PLAINTIFF YOEL SBERLO AND PLAINTIFF'S
COUNSEL AARON FARMER AND KAREN UCHIYAMA 1INTRODUCTION
Defendant Yarng Altawal opposes Plaintiff's Motion to Compel Further Responses to
Discovery where the Plaintiff and his agents refuse to appear for their depositions despite Court
instruction, the Plaintiff was not provided leave to file a discovery motion, the Plaintiff's
counsel has not been forthcoming with this Court about information known of the third parties,
where the Motion was set on less than 5 days notice, and where the Plaintiff stated that they are
going to win. This matter was filed on May 22, 2013 and unlawful detainer matters are to be
expedited and set for trial 20 days after a memorandum to set is filed. In addition, the Court
allowed the Plaintiff to file a motion to continue the trial, as evidenced by the register of
actions, and the Plaintiff failed to file that motion. The Plaintiff is now trying to say they are
unavailable for trial starting December 24, 2013 so there is a need to start this trial at the present
time. Therefore, this motion should be denied and the motion to continue the trial date should
be taken off calendar. The motion should be denied because:
1) The motion is improper as the Court allowed an additional motion to continue
trial date, and not a motion to compel. Therefore, the Plaintiff did not have leave
to file the instant motion.
2) The motion is untimely as this case has already been called for trial and the
discovery cut off date is five days before trial in unlawful detainer matters and
moving a trial date does not extend the time for discovery. CCP 2024.040(b)
3) Some of the information was provided more than 45 days ago and any motion is
untimely.
4) The Defendant has provided full and complete responses with all information
within his possession, custody and control and the Plaintiff is attempting to force
the Defendant to obtain information not required by the code.
5) The Plaintiff did not adequately meet and confer at all or address the
supplemental discovery responses.
6) This entire motion is an abuse of the discovery process and clearly evidences
DEFENDANT YARNG ALTAWAL'S OPPOSITION TO PLAINTIFF'S DISCOVERY MOTION WHERE THE PLAINTIFF
WAS ONLY TO FILE A MOTION TO CONTINUE THE TRIAL; WHERE THERE HAS BEEN INSUFFICIENT MEET
AND CONFER; REQUEST FOR MONETARY SANCTIONS AGAINST PLAINTIFF YOEL SBERLO AND PLAINTIFF'S
COUNSEL AARON FARMER AND KAREN UCHIYAMA 2Plaintiff's efforts to overwhelm the Defendant and his counsel. Finally sanctions
are warranted against Plaintiff Yoel Sberlo and his attorneys Karen Uchiyama
and Aaron Farmer because of these repeated abuses of discovery. The separate
statement is also deficient as it does not include any reference as to good cause
regarding documents. CCP 2031.
Additionally, Defendants request monetary sanctions against Plaintiff Yoel Sberlo and
his counsel Karen Uchiyama for Defendants’ costs and fees associated with opposing this mo-
tion pursuant to CCP 2023.030, 2025.480(f), and 2030.300(d) in an amount of $3,060.00.
STATEMENT OF FACTS
Plaintiffs allege that Defendant Yarng Altawal was behind in rent and served an invalid
three day notice to quit without giving Defendants time to cure. After the initial three day
notice, Plaintiffs served a second invalid three day notice to quit for subletting the apartment
without opportunity to cure. Defendants contend in pleadings that the second notice was a
“supplemental notice” though no such authority exists to allow that. At all times Defendants
assert that they have never sublet nor assigned the apartment. Plaintiffs then followed with the
Unlawful Detainer action filed on May 22, 2013. Recently the Plaintiff even indicated they
now believe that rent may have been accepted for one of the month's at issue but they refuse to
address any of their prior discovery responses to the contrary.
Thus far the Plaintiff has asked over approximately 1,000 discovery requests when you
consider all the requests and how individual requests ask for information as to all other
requests. The Defendant has complied and produced all information and thus far the Plaintiff
confirmed they have no actual proof of subletting.
Plaintiffs Counsel has proceeded to complicate the discovery process despite
Defendants good faith efforts to comply with discovery requests and court orders. Defendant
has provided all known information and sat for a full day deposition, on December 6, 2013, in
which the Plaintiffs Counsel spent the first half of the day asking about irrelevant items meant
to assist them in raising Defendants rent after this case.
DEFENDANT YARNG ALTAWAL'S OPPOSITION TO PLAINTIFF'S DISCOVERY MOTION WHERE THE PLAINTIFF
WAS ONLY TO FILE A MOTION TO CONTINUE THE TRIAL; WHERE THERE HAS BEEN INSUFFICIENT MEET
AND CONFER; REQUEST FOR MONETARY SANCTIONS AGAINST PLAINTIFF YOEL SBERLO AND PLAINTIFF'S
COUNSEL AARON FARMER AND KAREN UCHIYAMA 327
28
On December 9, 2013 at the hearing for the Plaintiffs Motion to Continue Trial Date,
Judge O'Malle Taylor allowed Plaintiffs counsel to file another Motion to Continue Trial on
December 10, 2013. However, the Plaintiff did not file a motion to continue the trial date.
Without leave of Court, Plaintiff filed a motion for discovery. The parties are to return for a
Trial status on Friday, December 13, 203 and for trial on December 16, 2013.
On or about December 9, 2013 at 7:57 pm, Defendants received via email a meet and
confer letter regarding outstanding discovery responses, including, Request for Production of
Documents and Things, Set One, Request for Production of Documents, Set Two, and Special
Interrogatories, Set Three. Defendants sent letters meeting and conferring regarding Plaintiff's
depositions and their discovery but the Plaintiff has refused to answer. Defendant moved to
compel Plaintiff's deposition and those of their agents and the Court indicated to raise that
matter to Judge O'Malley Taylor.
The next day, on December 10, 2013 Plaintiffs Counsel submitted a Motion to Compel
on these issues as well as a new set of propounded discovery.
Til. LEGAL ARGUMENT
A. Improper Motion to Compel
At the December 9, 2013 hearing on the Motion to Continue Trial, Judge O'Malley
Taylor allowed the Plaintiffs to file an additional Motion to Continue Trial. However, instead
Plaintiffs submitted the instant Motion to Compel and an additional set of discovery, after
the5 day trial cut off. At no time has Plaintiffs Counsel submitted the Motion to Continue
Trial. In addition, the Plaintiff was to produce their clients for deposition and the Plaintiff has
refused. Therefore, where Plaintiff is in violation of this Court's order and instructions, this
motion should be denied. It is unfair for Plaintiff to refuse to appear for depositions while at
the same time filing motion after motion. The reality appears that the Plaintiff intends to
dismiss this matter at trial call but seeks to overwhelm the Defendant in the meantime and
obtain discovery for the next eviction they seek to file as evidenced by the fact that the first
DEFENDANT YARNG ALTAWAL'S OPPOSITION TO PLAINTIFF'S DISCOVERY MOTION WHERE THE PLAINTIFF
WAS ONLY TO FILE A MOTION TO CONTINUE THE TRIAL; WHERE THERE HAS BEEN INSUFFICIENT MEET
AND CONFER; REQUEST FOR MONETARY SANCTIONS AGAINST PLAINTIFF YOEL SBERLO AND PLAINTIFF'S
COUNSEL AARON FARMER AND KAREN UCHIYAMA 4half of Defendant's deposition, the only questions related to whether they can raise the rent on
the Defendant.
B. Plaintiff Did Not Sufficiently Meet and Confer Prior to Bringing the Instant Motion
and the Plaintiff Yoel Sberlo and his Counsel Karen Uchiyama and Aaron Farmer
Should be Sanctioned for the Failure to Meet and Confer.
California Code of Civil Procedure §2016.040 states that any discovery motion shall be
accompanied by a meet and confer declaration "showing a reasonable and good faith attempt at
an informal resolution of each issue presented by the motion" and that sanctions are warranted
for the failure to meet and confer. The statutory guidelines regarding a motion to compel
answers from a deponent following deposition and to compel special interrogatory responses
similarly require that a party must submit a meet and confer declaration when filing a motion
to compel further responses. Cal. Civ. Pro. §2025.480(b), §2030.300(b).
The Plaintiff did not adequately meet and confer regarding the discovery at issue. The
Plaintiff never raised the bulk of the issues in connection with their prior motion. and they
cannot continue to file motions in pieces. The Plaintiff routinely rushes to Court without
actively trying to resolve the issues. The Plaintiff is on a fishing expedition for Defendant to try
to account for every deposit to his bank account even though the Plaintiff has stated that they
spoke to one of Defendant's friends. In addition, the Defendant has asked who the Plaintiff
believes sublet the unit and during what time frame and the Plaintiff refuses to respond. The
Plaintiff cannot rely on their refusal to participate in discovery in order to further obtain
discovery to which they are not entitled.
Plaintiffs Discovery Requests, Special Interrogatories, Set 3 and Request for Production
of Documents, Set 1, on November 26, 2013 after 5:00 pm. Defendants sent code compliant
responses on December 2, 2013. On December 3, 2013 at 7:00 pm Plaintiffs Counsel sent
Defense counsel an email attempting to meet and confer on the issues, to which Plaintiffs
counsel responded by email on December 4, 2013.
DEFENDANT YARNG ALTAWAL'S OPPOSITION TO PLAINTIFF'S DISCOVERY MOTION WHERE THE PLAINTIFF
WAS ONLY TO FILE A MOTION TO CONTINUE THE TRIAL; WHERE THERE HAS BEEN INSUFFICIENT MEET
AND CONFER; REQUEST FOR MONETARY SANCTIONS AGAINST PLAINTIFF YOEL SBERLO AND PLAINTIFF'S
COUNSEL AARON FARMER AND KAREN UCHIYAMA 527
28
On December 10, 2013 at 7:57 pm, Plaintiffs sent, via email, the first meet and confer
letter regarding the issues in the Motion to Compel. The next day, the Motion to Compel was
filed.
Defense Counsel has attempted to meet and confer regarding these issues and has
attempted to provide all information requested. Except for the December 10 Meet and Confer
letter, Plaintiffs have not met and conferred outside broad statements of “unresponsive and
evasive” and have yet to address any of the Defendants objections or issues raised regarding
the discovery requests.
1. Plaintiffs have not addressed any of the Defendants Objections to Discovery
at Issue
The Plaintiffs, in their failure to meet and confer, have failed to address the Defendants
many privacy objections raised in response to the overbroad requests.
Discovery of constitutionally protected information is on a par with discovery of
privileged information and is more narrowly proscribed than traditional discovery. (Britt v.
Superior Court, supra, 20 Cal. 3d at pp. 852-853.)
When the right to discovery conflicts with a privileged right, the court is required to
carefully balance the right of privacy with the need for discovery. Harris v. Superior Court
(1992) 3 Cal. App. 4th 661, 665 [4 Cal. Rptr. 2d 564].) Discovery may be compelled only
upon a showing of a compelling public interest. ( /d. at p. 664.) The party seeking the
constitutionally protected information has the burden of establishing that the information
sought is directly relevant to the claims. Harris v. Superior Court, supra, 3 Cal. App. 4th at p.
665.)
One of the issues in Britt v. Superior Court, was the compelled disclosure of
psychological information sought on the theory that the action alleged emotional distress. The
Supreme Court concluded that the trial court's order was overly broad and reiterated the narrow
scope of discovery allowedcations which are not directly relevant to those specific conditions
do not fall within the terms of section 1016's exception and therefore remain privileged.
Disclosure cannot be compelled with respect to other aspects of the patient-litigant's
DEFENDANT YARNG ALTAWAL'S OPPOSITION TO PLAINTIFF'S DISCOVERY MOTION WHERE THE PLAINTIFF
WAS ONLY TO FILE A MOTION TO CONTINUE THE TRIAL; WHERE THERE HAS BEEN INSUFFICIENT MEET.
AND CONFER; REQUEST FOR MONETARY SANCTIONS AGAINST PLAINTIFF YOEL SBERLO AND PLAINTIFF'S
COUNSEL AARON FARMER AND KAREN UCHIYAMA 627
28
personality even though they may, in some sense, be "relevant" to the substantive issues of
litigation. The patient thus is not obligated to sacrifice all privacy to seek redress for a specific
mental or emotional injury; the scope of the inquiry permitted depends upon the nature of the
injuries which the patient-litigant himself has brought before the court.’ " (Britt v. Superior
Court, supra , 20 Cal. 3d at pp. 863-864.)
The Defendants have raised a privacy issue as to many of the financial documents and
employment issues that Plaintiffs are attempting to compel. However, the Plaintiffs have failed
to address any of these privacy issues or show how their requests overcome these privacy
privileges. Moreover, Plaintiffs have failed to address the privacy objections in light of Judge
Busch's orders which stated Defendants did not have to respond to Plaintiffs Special
Interrogatory, Set One, No 24 which states “Describe each and every source of your income
from January 2012 to Present.” Plaintiffs Special Interrogatory, Set One, No 24, Pg 5, line
13-14,
Throughout this matter, the Plaintiffs have stalled in conducting any sort of discovery
and then with trial looming, have bombarded Plaintiffs with thousands of discovery requests.
Plaintiffs have not produced Plaintiffs for deposition, and still won't produce them with the
delayed trial date despite agreeing to produce them, agreeing to deposition dates, and then
taking denying to produce all Plaintiffs or persons with knowledge.
For these reasons the motion must be denied. The Plaintiff repeatedly files motions
without taking the mandated steps to attempt to resolve the difficulties without Court
involvement. The Plaintiff may not be happy that evidence does not exist but this is not a basis
to file a motion.
C._ Plaintiff Has Not Been Honest with this Court where He Has Not Identified the
Information they Already Have which Moots their Requests and also Defendant Has Turned
Over All Responsive Documents and Responses
Plaintiffs counsel Mr. Aaron Farmer has indicated he has been in contact with some of
the third party individuals but he has mislead this Court by not putting forth the purported
“consideration” the third parties have told Mr. Farmer they provided. This is critical
DEFENDANT YARNG ALTAWAL'S OPPOSITION TO PLAINTIFF'S DISCOVERY MOTION WHERE THE PLAINTIFF
WAS ONLY TO FILE A MOTION TO CONTINUE THE TRIAL; WHERE THERE HAS BEEN INSUFFICIENT MEET.
AND CONFER; REQUEST FOR MONETARY SANCTIONS AGAINST PLAINTIFF YOEL SBERLO AND PLAINTIFF'S
COUNSEL AARON FARMER AND KAREN UCHIYAMA 727
28
information because the Plaintiff is going on a fishing expedition even though he has the
information he seeks. Ms. Karen Uchiyama has stated that she has enough information that
they will show third parties have lived at the Subject Property for a year. Defendant Altawal
has already sat for his deposition and given all this information to the Plaintiffs. This motion is
solely being used to complicate the discovery process, increase the costs of litigation, and force
the Defendant to move out of the subject property.
Request For Production of Documents and Things Set One, No 9: Plaintiffs indicate
that no Wells Fargo Bank Statement for April 2013 has been provided. However, this
document has been provided to Plaintiffs Counsel on two separate occasions and is also
attached to this opposition. Moreover, all bank statements have been produced at this time.
The statements have been redacted to protect the privacy of the Defendant in all irrelevant
transactions. As Plaintiffs have counsel regarding specific transactions, this information has
been given to Plaintiffs.
Request For Production of Documents and Things Set Two, No 11-13: The documents
referenced by the checkbook have been produced. Defendant is attempting to find the check
book to produce, but this information has been provided to the Plaintiffs in the Wells Fargo
Bank records.
Request For Production of Documents and Things Set Two, No 17: This request seeks
documents evidencing the balance of $2,271.00 in Wells Fargo account on May 1, 2013.
Defendants have provided Plaintiffs with information that no such documents exists, as this
amount was not present in the account and have agreed to stipulate to this fact. As such, this
request is moot.
Request For Production of Documents and Things Set Two, No 24: This request seeks
information regarding all employers of Yarng Altawal. Defendants have objected to this
request and have asked Plaintiffs to provide further information on how this is relevant to the
litigation. Plaintiffs have not met and conferred on this issue. Information regarding
employment is private and privileged and Plaintiff has not show how it could lead to
DEFENDANT YARNG ALTAWAL'S OPPOSITION TO PLAINTIFF'S DISCOVERY MOTION WHERE THE PLAINTIFF
WAS ONLY TO FILE A MOTION TO CONTINUE THE TRIAL; WHERE THERE HAS BEEN INSUFFICIENT MEET
AND CONFER; REQUEST FOR MONETARY SANCTIONS AGAINST PLAINTIFF YOEL SBERLO AND PLAINTIFF'S
COUNSEL AARON FARMER AND KAREN UCHIYAMA 8admissible evidence. The reality is that Plaintiff is on a fishing expedition and trying to force
the Defendant to account for every dollar to his name which is improper.
Special Interrogatory No 308: Defendants have raised the attorney client privilege
regarding this request and have told Plaintiffs that Defendants will further discuss this with the
Judge, in camera, if needed. No further meet and confer has been conducted on this issue.
At this time, all documents have been produced which were previously requested and
which were required by the court order. No further documents are in the possession or control
of the Defendant, and all documents not available have been conveyed to the Plaintiffs.
As such, the Motion must be denied. All discovery has been responded to by
Defendant and the trial judge can address any further items.
D. Plaintiff has not been diligent and Only
The Plaintiffs have not been diligent in their discovery efforts and as such have
prejudiced the Defendant and are using discovery as means to continue the trial without good
cause.
Defendants have not carried their burden of proving good cause to justify a continuance.
Continuances are heavily disfavored by the courts and they are only given sparingly:
As the Court of Appeal in Link v. Cater, 60 Cal.App.4th 1315,
instructed, the court must look beyond the limited facts which cause a
litigant to request a last-minute continuance and consider the degree of
diligence in his or her efforts to bring the case to trial, including
participating in earlier court hearings, conducting discovery, and
preparing for trial. The Link Court concluded that the worthy goal of
disposing of cases expeditiously would not be met by "imposing the
ultimate sanction of termination on diligent litigants who, due to
unforeseen circumstances and reasonable excuse, fail to appear when
ordered to do so.”
Oliveros y. County of Los Angeles, 120 Cal.App.4th 1389
Additionally, on the question of "what constitutes good cause, guidance
has been provided by the Standards of Judicial Administration adopted
by the Judicial Council." County of San Bernardino v. Doria Mining &
Engineering Corp. (1977) 72 Cal.App.3d 776, 779.) Under the general
tule set forth in that standard, "the necessity for the continuance should
have resulted from an emergency occurring after the trial setting
conference that could not have been anticipated or avoided with
DEFENDANT YARNG ALTAWAL'S OPPOSITION TO PLAINTIFF'S DISCOVERY MOTION WHERE THE PLAINTIFF
WAS ONLY TO FILE A MOTION TO CONTINUE THE TRIAL; WHERE THERE HAS BEEN INSUFFICIENT MEET
AND CONFER; REQUEST FOR MONETARY SANCTIONS AGAINST PLAINTIFF YOEL SBERLO AND PLAINTIFF'S
COUNSEL AARON FARMER AND KAREN UCHIYAMA 927
28
reasonable diligence and cannot now be properly provided for other than
by the granting of a continuance.
Lazarus v. Titmus (1998) 64 Cal.App.4th 1242, 1250.
Where Defendants continue to take discovery in a case, under the doctrine of Judicial
Estoppel, they waive any right to stay the matter. See, e.g., Drain v. Betz Laboratories (1999)
69 Cal. App.4th 950, at 958.
Other factors to be considered under CRC §1332(d):
(1)The proximity of the trial date: The trial date is December 13, 2013. The Defendants
waited until the last possible minute despite having been able to take discovery for six months.
(2)Whether there was any previous continuance, extension of time, or delay of trial due to
any party; The Plaintiff already received one extension and now claims to be unavailable for
the last half of December 2013.
(3)The length of the continuance requested; The Plaintiff seeks an additional 30 days but that
is far too long and beyond even the amount of time the code allows.
(4)The availability of alternative means to address the problem that gave rise to the
motion or application for a continuance. The Plaintiffs can raise any further issues to the
trial judge and at the trial itself.
E. Plaintiff's Request_for Sanctions Should Be Denied Where the Defendant Has
Attempted to Comply with Discovery and the Plaintiff refuses even One Day
Extensions Until after Responses are Served
"A request for a sanction shall, in the notice of motion, identify
every person, party, and attorney against whom the sanction is
sought, and specify the type of sanction sought."
Cal. Civ. Pro. § 2023.040.
It should be clear to the Court that the Plaintiff is utilizing this entire process as a means
to pressure the Defendant to vacate due to the pressure and difficulties.
Moreover, Plaintiff's egregious failure to meet and confer in any meaningful way
undercuts Plaintiff's request for sanctions. As evidenced, Defendant repeatedly reached out to
DEFENDANT YARNG ALTAWAL'S OPPOSITION TO PLAINTIFF'S DISCOVERY MOTION WHERE THE PLAINTIFF
WAS ONLY TO FILE A MOTION TO CONTINUE THE TRIAL; WHERE THERE HAS BEEN INSUFFICIENT MEET
AND CONFER; REQUEST FOR MONETARY SANCTIONS AGAINST PLAINTIFF YOEL SBERLO AND PLAINTIFF'S
COUNSEL AARON FARMER AND KAREN UCHIYAMA 1027
28
Plaintiff to explore resolution and to request further authority from Plaintiff to support the
requests, but Plaintiff did not follow up.
Defendant seeks sanctions because the Plaintiff Yoel Sberlo and his counsel Karen
Uchiyama and Aaron Farmer continue to abuse the discovery process and refuse to even
appear for their depositions. Monetary sanctions are sought in the amount of $3,060 for the
failure of the Plaintiff and his counsel to comply with Court orders and appear for their
depositions.
IV. CONCLUSION
Based on the foregoing, Defendant respectfully requests that the Court deny Plaintiff's
motion to compel and grant Defendant's request for sanctions in the amount of $3,060.
Dated: December 12, 2013 HOOSHMAND LAW GROUP
Ma WL~)
Mark Hooshmand, Esq.
Attorney for Defendant
DEFENDANT YARNG ALTAWAL'S OPPOSITION TO PLAINTIFF'S DISCOVERY MOTION WHERE THE PLAINTIFF
WAS ONLY TO FILE A MOTION TO CONTINUE THE TRIAL; WHERE THERE HAS BEEN INSUFFICIENT MEET
AND CONFER; REQUEST FOR MONETARY SANCTIONS AGAINST PLAINTIFF YOEL SBERLO AND PLAINTIFF'S
COUNSEL AARON FARMER AND KAREN UCHIYAMA 11
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SUPERIOR COURT OF CALIFORNIA COUNTY OF SAN FRANCISCO Document Scanning Lead Sheet Dec-12-2013 2:42 pm Case Number: CUD-13-645401 Filing Date: Dec-12-2013 2:42 Filed by: WESLEY G. RAMIREZ Juke Box: 001 Image: 04307532 OPPOSITION SBERLO, YOEL, TRUSTEE FOR SBERLO FAMILY TRUST VS. YARNG ALTAWAL et al 001004307532 Instructions: Please place this sheet on top of the document to be scanned.Mark Hooshmand, Esq. (SBN 194878) Hooshmand Law Group p 22 Battery Street, Ste. 610 ior ourt San Francisco, CA 94111 co COUN Sun Tel: (415) 318-5709 gan Franc 3 420 Fax: (415) 376-5897 ore qual Attorney for Defendant Yarng Altawal AE © cuen env COUNTY OF SAN FRANCISCO YOEL SBERLO, TRUSTEE FOR SBERLO FAMILY TRUST. CASE NO.: CUD-13-645401 DEFENDANT YARNG ALTAWAL'S OPPOSITION TO PLAINTIFF'S DISCOVERY MOTION WHERE THE PLAINTIFF WAS ONLY| TO FILE A MOTION TO CONTINUE THE TRIAL; WHERE THERE HAS BEEN INSUFFICIENT MEET AND CONFER; REQUEST FOR MONETARY SANCTIONS, AGAINST PLAINTIFF YOEL SBERLO AND PLAINTIFF'S COUNSEL AARON FARMER AND KAREN UCHIYAMA Plaintiffs, vs. YARNG ALTAWAL, Defendants. Date: December 13, 2013 Time: 9:00 a.m. Department: 611 we SSS SS SS SS SS SSS SD DEFENDANT YARNG ALTAWAL'S OPPOSITION TO PLAINTIFF'S DISCOVERY MOTION WHERE THE PLAINTIFF WAS ONLY TO FILE A MOTION TO CONTINUE THE TRIAL; WHERE THERE HAS BEEN INSUFFICIENT MEET AND CONFER; REQUEST FOR MONETARY SANCTIONS AGAINST PLAINTIFF YOEL SBERLO AND PLAINTIFF'S COUNSEL AARON FARMER AND KAREN UCHIYAMA DEFENDANT YARNG ALTAWAL'S OPPOSITION TO PLAINTIFF'S DISCOVERY MOTION WHERE THE PLAINTIFF WAS ONLY TO FILE A MOTION TO CONTINUE THE TRIAL; WHERE THERE HAS BEEN INSUFFICIENT MEET AND CONFER; REQUEST FOR MONETARY SANCTIONS AGAINST PLAINTIFF YOEL SBERLO AND PLAINTIFF'S COUNSEL AARON FARMER AND KAREN UCHIYAMA 1INTRODUCTION Defendant Yarng Altawal opposes Plaintiff's Motion to Compel Further Responses to Discovery where the Plaintiff and his agents refuse to appear for their depositions despite Court instruction, the Plaintiff was not provided leave to file a discovery motion, the Plaintiff's counsel has not been forthcoming with this Court about information known of the third parties, where the Motion was set on less than 5 days notice, and where the Plaintiff stated that they are going to win. This matter was filed on May 22, 2013 and unlawful detainer matters are to be expedited and set for trial 20 days after a memorandum to set is filed. In addition, the Court allowed the Plaintiff to file a motion to continue the trial, as evidenced by the register of actions, and the Plaintiff failed to file that motion. The Plaintiff is now trying to say they are unavailable for trial starting December 24, 2013 so there is a need to start this trial at the present time. Therefore, this motion should be denied and the motion to continue the trial date should be taken off calendar. The motion should be denied because: 1) The motion is improper as the Court allowed an additional motion to continue trial date, and not a motion to compel. Therefore, the Plaintiff did not have leave to file the instant motion. 2) The motion is untimely as this case has already been called for trial and the discovery cut off date is five days before trial in unlawful detainer matters and moving a trial date does not extend the time for discovery. CCP 2024.040(b) 3) Some of the information was provided more than 45 days ago and any motion is untimely. 4) The Defendant has provided full and complete responses with all information within his possession, custody and control and the Plaintiff is attempting to force the Defendant to obtain information not required by the code. 5) The Plaintiff did not adequately meet and confer at all or address the supplemental discovery responses. 6) This entire motion is an abuse of the discovery process and clearly evidences DEFENDANT YARNG ALTAWAL'S OPPOSITION TO PLAINTIFF'S DISCOVERY MOTION WHERE THE PLAINTIFF WAS ONLY TO FILE A MOTION TO CONTINUE THE TRIAL; WHERE THERE HAS BEEN INSUFFICIENT MEET AND CONFER; REQUEST FOR MONETARY SANCTIONS AGAINST PLAINTIFF YOEL SBERLO AND PLAINTIFF'S COUNSEL AARON FARMER AND KAREN UCHIYAMA 2Plaintiff's efforts to overwhelm the Defendant and his counsel. Finally sanctions are warranted against Plaintiff Yoel Sberlo and his attorneys Karen Uchiyama and Aaron Farmer because of these repeated abuses of discovery. The separate statement is also deficient as it does not include any reference as to good cause regarding documents. CCP 2031. Additionally, Defendants request monetary sanctions against Plaintiff Yoel Sberlo and his counsel Karen Uchiyama for Defendants’ costs and fees associated with opposing this mo- tion pursuant to CCP 2023.030, 2025.480(f), and 2030.300(d) in an amount of $3,060.00. STATEMENT OF FACTS Plaintiffs allege that Defendant Yarng Altawal was behind in rent and served an invalid three day notice to quit without giving Defendants time to cure. After the initial three day notice, Plaintiffs served a second invalid three day notice to quit for subletting the apartment without opportunity to cure. Defendants contend in pleadings that the second notice was a “supplemental notice” though no such authority exists to allow that. At all times Defendants assert that they have never sublet nor assigned the apartment. Plaintiffs then followed with the Unlawful Detainer action filed on May 22, 2013. Recently the Plaintiff even indicated they now believe that rent may have been accepted for one of the month's at issue but they refuse to address any of their prior discovery responses to the contrary. Thus far the Plaintiff has asked over approximately 1,000 discovery requests when you consider all the requests and how individual requests ask for information as to all other requests. The Defendant has complied and produced all information and thus far the Plaintiff confirmed they have no actual proof of subletting. Plaintiffs Counsel has proceeded to complicate the discovery process despite Defendants good faith efforts to comply with discovery requests and court orders. Defendant has provided all known information and sat for a full day deposition, on December 6, 2013, in which the Plaintiffs Counsel spent the first half of the day asking about irrelevant items meant to assist them in raising Defendants rent after this case. DEFENDANT YARNG ALTAWAL'S OPPOSITION TO PLAINTIFF'S DISCOVERY MOTION WHERE THE PLAINTIFF WAS ONLY TO FILE A MOTION TO CONTINUE THE TRIAL; WHERE THERE HAS BEEN INSUFFICIENT MEET AND CONFER; REQUEST FOR MONETARY SANCTIONS AGAINST PLAINTIFF YOEL SBERLO AND PLAINTIFF'S COUNSEL AARON FARMER AND KAREN UCHIYAMA 327 28 On December 9, 2013 at the hearing for the Plaintiffs Motion to Continue Trial Date, Judge O'Malle Taylor allowed Plaintiffs counsel to file another Motion to Continue Trial on December 10, 2013. However, the Plaintiff did not file a motion to continue the trial date. Without leave of Court, Plaintiff filed a motion for discovery. The parties are to return for a Trial status on Friday, December 13, 203 and for trial on December 16, 2013. On or about December 9, 2013 at 7:57 pm, Defendants received via email a meet and confer letter regarding outstanding discovery responses, including, Request for Production of Documents and Things, Set One, Request for Production of Documents, Set Two, and Special Interrogatories, Set Three. Defendants sent letters meeting and conferring regarding Plaintiff's depositions and their discovery but the Plaintiff has refused to answer. Defendant moved to compel Plaintiff's deposition and those of their agents and the Court indicated to raise that matter to Judge O'Malley Taylor. The next day, on December 10, 2013 Plaintiffs Counsel submitted a Motion to Compel on these issues as well as a new set of propounded discovery. Til. LEGAL ARGUMENT A. Improper Motion to Compel At the December 9, 2013 hearing on the Motion to Continue Trial, Judge O'Malley Taylor allowed the Plaintiffs to file an additional Motion to Continue Trial. However, instead Plaintiffs submitted the instant Motion to Compel and an additional set of discovery, after the5 day trial cut off. At no time has Plaintiffs Counsel submitted the Motion to Continue Trial. In addition, the Plaintiff was to produce their clients for deposition and the Plaintiff has refused. Therefore, where Plaintiff is in violation of this Court's order and instructions, this motion should be denied. It is unfair for Plaintiff to refuse to appear for depositions while at the same time filing motion after motion. The reality appears that the Plaintiff intends to dismiss this matter at trial call but seeks to overwhelm the Defendant in the meantime and obtain discovery for the next eviction they seek to file as evidenced by the fact that the first DEFENDANT YARNG ALTAWAL'S OPPOSITION TO PLAINTIFF'S DISCOVERY MOTION WHERE THE PLAINTIFF WAS ONLY TO FILE A MOTION TO CONTINUE THE TRIAL; WHERE THERE HAS BEEN INSUFFICIENT MEET AND CONFER; REQUEST FOR MONETARY SANCTIONS AGAINST PLAINTIFF YOEL SBERLO AND PLAINTIFF'S COUNSEL AARON FARMER AND KAREN UCHIYAMA 4half of Defendant's deposition, the only questions related to whether they can raise the rent on the Defendant. B. Plaintiff Did Not Sufficiently Meet and Confer Prior to Bringing the Instant Motion and the Plaintiff Yoel Sberlo and his Counsel Karen Uchiyama and Aaron Farmer Should be Sanctioned for the Failure to Meet and Confer. California Code of Civil Procedure §2016.040 states that any discovery motion shall be accompanied by a meet and confer declaration "showing a reasonable and good faith attempt at an informal resolution of each issue presented by the motion" and that sanctions are warranted for the failure to meet and confer. The statutory guidelines regarding a motion to compel answers from a deponent following deposition and to compel special interrogatory responses similarly require that a party must submit a meet and confer declaration when filing a motion to compel further responses. Cal. Civ. Pro. §2025.480(b), §2030.300(b). The Plaintiff did not adequately meet and confer regarding the discovery at issue. The Plaintiff never raised the bulk of the issues in connection with their prior motion. and they cannot continue to file motions in pieces. The Plaintiff routinely rushes to Court without actively trying to resolve the issues. The Plaintiff is on a fishing expedition for Defendant to try to account for every deposit to his bank account even though the Plaintiff has stated that they spoke to one of Defendant's friends. In addition, the Defendant has asked who the Plaintiff believes sublet the unit and during what time frame and the Plaintiff refuses to respond. The Plaintiff cannot rely on their refusal to participate in discovery in order to further obtain discovery to which they are not entitled. Plaintiffs Discovery Requests, Special Interrogatories, Set 3 and Request for Production of Documents, Set 1, on November 26, 2013 after 5:00 pm. Defendants sent code compliant responses on December 2, 2013. On December 3, 2013 at 7:00 pm Plaintiffs Counsel sent Defense counsel an email attempting to meet and confer on the issues, to which Plaintiffs counsel responded by email on December 4, 2013. DEFENDANT YARNG ALTAWAL'S OPPOSITION TO PLAINTIFF'S DISCOVERY MOTION WHERE THE PLAINTIFF WAS ONLY TO FILE A MOTION TO CONTINUE THE TRIAL; WHERE THERE HAS BEEN INSUFFICIENT MEET AND CONFER; REQUEST FOR MONETARY SANCTIONS AGAINST PLAINTIFF YOEL SBERLO AND PLAINTIFF'S COUNSEL AARON FARMER AND KAREN UCHIYAMA 527 28 On December 10, 2013 at 7:57 pm, Plaintiffs sent, via email, the first meet and confer letter regarding the issues in the Motion to Compel. The next day, the Motion to Compel was filed. Defense Counsel has attempted to meet and confer regarding these issues and has attempted to provide all information requested. Except for the December 10 Meet and Confer letter, Plaintiffs have not met and conferred outside broad statements of “unresponsive and evasive” and have yet to address any of the Defendants objections or issues raised regarding the discovery requests. 1. Plaintiffs have not addressed any of the Defendants Objections to Discovery at Issue The Plaintiffs, in their failure to meet and confer, have failed to address the Defendants many privacy objections raised in response to the overbroad requests. Discovery of constitutionally protected information is on a par with discovery of privileged information and is more narrowly proscribed than traditional discovery. (Britt v. Superior Court, supra, 20 Cal. 3d at pp. 852-853.) When the right to discovery conflicts with a privileged right, the court is required to carefully balance the right of privacy with the need for discovery. Harris v. Superior Court (1992) 3 Cal. App. 4th 661, 665 [4 Cal. Rptr. 2d 564].) Discovery may be compelled only upon a showing of a compelling public interest. ( /d. at p. 664.) The party seeking the constitutionally protected information has the burden of establishing that the information sought is directly relevant to the claims. Harris v. Superior Court, supra, 3 Cal. App. 4th at p. 665.) One of the issues in Britt v. Superior Court, was the compelled disclosure of psychological information sought on the theory that the action alleged emotional distress. The Supreme Court concluded that the trial court's order was overly broad and reiterated the narrow scope of discovery allowedcations which are not directly relevant to those specific conditions do not fall within the terms of section 1016's exception and therefore remain privileged. Disclosure cannot be compelled with respect to other aspects of the patient-litigant's DEFENDANT YARNG ALTAWAL'S OPPOSITION TO PLAINTIFF'S DISCOVERY MOTION WHERE THE PLAINTIFF WAS ONLY TO FILE A MOTION TO CONTINUE THE TRIAL; WHERE THERE HAS BEEN INSUFFICIENT MEET. AND CONFER; REQUEST FOR MONETARY SANCTIONS AGAINST PLAINTIFF YOEL SBERLO AND PLAINTIFF'S COUNSEL AARON FARMER AND KAREN UCHIYAMA 627 28 personality even though they may, in some sense, be "relevant" to the substantive issues of litigation. The patient thus is not obligated to sacrifice all privacy to seek redress for a specific mental or emotional injury; the scope of the inquiry permitted depends upon the nature of the injuries which the patient-litigant himself has brought before the court.’ " (Britt v. Superior Court, supra , 20 Cal. 3d at pp. 863-864.) The Defendants have raised a privacy issue as to many of the financial documents and employment issues that Plaintiffs are attempting to compel. However, the Plaintiffs have failed to address any of these privacy issues or show how their requests overcome these privacy privileges. Moreover, Plaintiffs have failed to address the privacy objections in light of Judge Busch's orders which stated Defendants did not have to respond to Plaintiffs Special Interrogatory, Set One, No 24 which states “Describe each and every source of your income from January 2012 to Present.” Plaintiffs Special Interrogatory, Set One, No 24, Pg 5, line 13-14, Throughout this matter, the Plaintiffs have stalled in conducting any sort of discovery and then with trial looming, have bombarded Plaintiffs with thousands of discovery requests. Plaintiffs have not produced Plaintiffs for deposition, and still won't produce them with the delayed trial date despite agreeing to produce them, agreeing to deposition dates, and then taking denying to produce all Plaintiffs or persons with knowledge. For these reasons the motion must be denied. The Plaintiff repeatedly files motions without taking the mandated steps to attempt to resolve the difficulties without Court involvement. The Plaintiff may not be happy that evidence does not exist but this is not a basis to file a motion. C._ Plaintiff Has Not Been Honest with this Court where He Has Not Identified the Information they Already Have which Moots their Requests and also Defendant Has Turned Over All Responsive Documents and Responses Plaintiffs counsel Mr. Aaron Farmer has indicated he has been in contact with some of the third party individuals but he has mislead this Court by not putting forth the purported “consideration” the third parties have told Mr. Farmer they provided. This is critical DEFENDANT YARNG ALTAWAL'S OPPOSITION TO PLAINTIFF'S DISCOVERY MOTION WHERE THE PLAINTIFF WAS ONLY TO FILE A MOTION TO CONTINUE THE TRIAL; WHERE THERE HAS BEEN INSUFFICIENT MEET. AND CONFER; REQUEST FOR MONETARY SANCTIONS AGAINST PLAINTIFF YOEL SBERLO AND PLAINTIFF'S COUNSEL AARON FARMER AND KAREN UCHIYAMA 727 28 information because the Plaintiff is going on a fishing expedition even though he has the information he seeks. Ms. Karen Uchiyama has stated that she has enough information that they will show third parties have lived at the Subject Property for a year. Defendant Altawal has already sat for his deposition and given all this information to the Plaintiffs. This motion is solely being used to complicate the discovery process, increase the costs of litigation, and force the Defendant to move out of the subject property. Request For Production of Documents and Things Set One, No 9: Plaintiffs indicate that no Wells Fargo Bank Statement for April 2013 has been provided. However, this document has been provided to Plaintiffs Counsel on two separate occasions and is also attached to this opposition. Moreover, all bank statements have been produced at this time. The statements have been redacted to protect the privacy of the Defendant in all irrelevant transactions. As Plaintiffs have counsel regarding specific transactions, this information has been given to Plaintiffs. Request For Production of Documents and Things Set Two, No 11-13: The documents referenced by the checkbook have been produced. Defendant is attempting to find the check book to produce, but this information has been provided to the Plaintiffs in the Wells Fargo Bank records. Request For Production of Documents and Things Set Two, No 17: This request seeks documents evidencing the balance of $2,271.00 in Wells Fargo account on May 1, 2013. Defendants have provided Plaintiffs with information that no such documents exists, as this amount was not present in the account and have agreed to stipulate to this fact. As such, this request is moot. Request For Production of Documents and Things Set Two, No 24: This request seeks information regarding all employers of Yarng Altawal. Defendants have objected to this request and have asked Plaintiffs to provide further information on how this is relevant to the litigation. Plaintiffs have not met and conferred on this issue. Information regarding employment is private and privileged and Plaintiff has not show how it could lead to DEFENDANT YARNG ALTAWAL'S OPPOSITION TO PLAINTIFF'S DISCOVERY MOTION WHERE THE PLAINTIFF WAS ONLY TO FILE A MOTION TO CONTINUE THE TRIAL; WHERE THERE HAS BEEN INSUFFICIENT MEET AND CONFER; REQUEST FOR MONETARY SANCTIONS AGAINST PLAINTIFF YOEL SBERLO AND PLAINTIFF'S COUNSEL AARON FARMER AND KAREN UCHIYAMA 8admissible evidence. The reality is that Plaintiff is on a fishing expedition and trying to force the Defendant to account for every dollar to his name which is improper. Special Interrogatory No 308: Defendants have raised the attorney client privilege regarding this request and have told Plaintiffs that Defendants will further discuss this with the Judge, in camera, if needed. No further meet and confer has been conducted on this issue. At this time, all documents have been produced which were previously requested and which were required by the court order. No further documents are in the possession or control of the Defendant, and all documents not available have been conveyed to the Plaintiffs. As such, the Motion must be denied. All discovery has been responded to by Defendant and the trial judge can address any further items. D. Plaintiff has not been diligent and Only The Plaintiffs have not been diligent in their discovery efforts and as such have prejudiced the Defendant and are using discovery as means to continue the trial without good cause. Defendants have not carried their burden of proving good cause to justify a continuance. Continuances are heavily disfavored by the courts and they are only given sparingly: As the Court of Appeal in Link v. Cater, 60 Cal.App.4th 1315, instructed, the court must look beyond the limited facts which cause a litigant to request a last-minute continuance and consider the degree of diligence in his or her efforts to bring the case to trial, including participating in earlier court hearings, conducting discovery, and preparing for trial. The Link Court concluded that the worthy goal of disposing of cases expeditiously would not be met by "imposing the ultimate sanction of termination on diligent litigants who, due to unforeseen circumstances and reasonable excuse, fail to appear when ordered to do so.” Oliveros y. County of Los Angeles, 120 Cal.App.4th 1389 Additionally, on the question of "what constitutes good cause, guidance has been provided by the Standards of Judicial Administration adopted by the Judicial Council." County of San Bernardino v. Doria Mining & Engineering Corp. (1977) 72 Cal.App.3d 776, 779.) Under the general tule set forth in that standard, "the necessity for the continuance should have resulted from an emergency occurring after the trial setting conference that could not have been anticipated or avoided with DEFENDANT YARNG ALTAWAL'S OPPOSITION TO PLAINTIFF'S DISCOVERY MOTION WHERE THE PLAINTIFF WAS ONLY TO FILE A MOTION TO CONTINUE THE TRIAL; WHERE THERE HAS BEEN INSUFFICIENT MEET AND CONFER; REQUEST FOR MONETARY SANCTIONS AGAINST PLAINTIFF YOEL SBERLO AND PLAINTIFF'S COUNSEL AARON FARMER AND KAREN UCHIYAMA 927 28 reasonable diligence and cannot now be properly provided for other than by the granting of a continuance. Lazarus v. Titmus (1998) 64 Cal.App.4th 1242, 1250. Where Defendants continue to take discovery in a case, under the doctrine of Judicial Estoppel, they waive any right to stay the matter. See, e.g., Drain v. Betz Laboratories (1999) 69 Cal. App.4th 950, at 958. Other factors to be considered under CRC §1332(d): (1)The proximity of the trial date: The trial date is December 13, 2013. The Defendants waited until the last possible minute despite having been able to take discovery for six months. (2)Whether there was any previous continuance, extension of time, or delay of trial due to any party; The Plaintiff already received one extension and now claims to be unavailable for the last half of December 2013. (3)The length of the continuance requested; The Plaintiff seeks an additional 30 days but that is far too long and beyond even the amount of time the code allows. (4)The availability of alternative means to address the problem that gave rise to the motion or application for a continuance. The Plaintiffs can raise any further issues to the trial judge and at the trial itself. E. Plaintiff's Request_for Sanctions Should Be Denied Where the Defendant Has Attempted to Comply with Discovery and the Plaintiff refuses even One Day Extensions Until after Responses are Served "A request for a sanction shall, in the notice of motion, identify every person, party, and attorney against whom the sanction is sought, and specify the type of sanction sought." Cal. Civ. Pro. § 2023.040. It should be clear to the Court that the Plaintiff is utilizing this entire process as a means to pressure the Defendant to vacate due to the pressure and difficulties. Moreover, Plaintiff's egregious failure to meet and confer in any meaningful way undercuts Plaintiff's request for sanctions. As evidenced, Defendant repeatedly reached out to DEFENDANT YARNG ALTAWAL'S OPPOSITION TO PLAINTIFF'S DISCOVERY MOTION WHERE THE PLAINTIFF WAS ONLY TO FILE A MOTION TO CONTINUE THE TRIAL; WHERE THERE HAS BEEN INSUFFICIENT MEET AND CONFER; REQUEST FOR MONETARY SANCTIONS AGAINST PLAINTIFF YOEL SBERLO AND PLAINTIFF'S COUNSEL AARON FARMER AND KAREN UCHIYAMA 1027 28 Plaintiff to explore resolution and to request further authority from Plaintiff to support the requests, but Plaintiff did not follow up. Defendant seeks sanctions because the Plaintiff Yoel Sberlo and his counsel Karen Uchiyama and Aaron Farmer continue to abuse the discovery process and refuse to even appear for their depositions. Monetary sanctions are sought in the amount of $3,060 for the failure of the Plaintiff and his counsel to comply with Court orders and appear for their depositions. IV. CONCLUSION Based on the foregoing, Defendant respectfully requests that the Court deny Plaintiff's motion to compel and grant Defendant's request for sanctions in the amount of $3,060. Dated: December 12, 2013 HOOSHMAND LAW GROUP Ma WL~) Mark Hooshmand, Esq. Attorney for Defendant DEFENDANT YARNG ALTAWAL'S OPPOSITION TO PLAINTIFF'S DISCOVERY MOTION WHERE THE PLAINTIFF WAS ONLY TO FILE A MOTION TO CONTINUE THE TRIAL; WHERE THERE HAS BEEN INSUFFICIENT MEET AND CONFER; REQUEST FOR MONETARY SANCTIONS AGAINST PLAINTIFF YOEL SBERLO AND PLAINTIFF'S COUNSEL AARON FARMER AND KAREN UCHIYAMA 11