Preview
1 Paul L. Gumina (SBN: 160110)
Law Offices of Paul L. Gumina, P.C.
2 560 W. Main St., #205
Alhambra, CA 91801
3
Tel: 866-894-8863
4 Fax: 866-894-8867
paul@westcoastbizlaw.com
5
Attorney for Defendants and Cross-Complainants
6 AMERICAN ABALONE FARMS, LLC,
OCEAN QUEEN USA, INC., and Defendant JAMES HO
7
8
SUPERIOR COURT OF CALIFORNIA
9
COUNTY OF SANTA CRUZ
10
TOM EBERT, an individual; ) Case No.: 19CV03672
11 )
Plaintiff, ) DEFENDANTS' MEMORANDUM OF POINTS
12
) AND AUTHORITIES IN OPPOSITION TO
13 VS. ) PLAINTIFF'S MOTION FOR ORDER
) COMPELLING DEFENDANT AMERICAN
14 AMERICAN ABALONE FARMS, LLC, a ) ABALONE FARMS, LLC TO PRODUCE A
California Limited Liability Company, OCEAN ) PERSON MOST KNOWLEDGEABLE FOR
15 QUEEN USA, INC., a California Corporation, ) DEPOSITION, TO PROVIDE VERIFIED
JAMES HO, an individual, HENSON XIE aka ) DISCOVERY RESPONSES, FOR AN ORDER
16 SHOU HAI XIE, an individual, and DOES 1 To ) COMPELLING JAMES HO TO PROVIDE AN
17 50, inclusive, ) ANSWER TO A DEPOSITION QUESTION,
) AND FOR SANCTIONS
18 Defendants. )
) DATE: MARCH 16, 2023
19 ) TIME: 8:30 P.M.
) DEPT: 5
20 _________________________________________ )
AND RELATED CROSS-COMPLAINT. ) TRIAL: April 17, 2023
21
)
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I. CASE STATUS
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This action was filed on December 10, 2019. Defendants filed their Answer and the Cross-
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Complaint against Cross-Defendant Tom Ebert on February 20, 2020, and he answered it on March 25,
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2020. Upon stipulation of counsel for this Court's order granting leave to amend, the Plaintiff filed his
26 First Amended Complaint ("FAC") on March 4, 2022 adding Defendant Henson Xie aka Shau Hai Xie,
27 and Defendants answered the FAC on April 19, 2022. The Court entered a default against Defendant Xie
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on April 21, 2022 although the Request for Entry of Default did not seek entry of judgment, and did listed
"0" as the amount sought. This case is set for a jury trial on April 17, 2023.
Memo of Ps & As In Opposition to Plaintiff’s Motion to Compel, etc. Page 1
1 II. PLAINTIFF'S COUNSEL FAILED TO MEET AND CONFER WITH DEFENDANTS IN
GOOD FAITH TO RESOLVE THEIR DISPUTES.
2
Defendants AAF, Ocean Queen, and James Ho served verified written responses on April 24,
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2020 to Plaintiff's Form Interrogatories - General, Set One, and Form Interrogatories - Employment, Set
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One. The Defendants also served verified written responses to Plaintiff's Special Interrogatories, Set One,
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and Requests for Production of Documents, Set One, on May 20, 2020, along with Defendants' document
6 production (Bates Nos. 1 - 104). During the subsequent almost three years, Plaintiff's counsel raised no
7 dispute about the sufficiency of these responses or the verifications, and Plaintiff did not file a motion to
8 compel further responses.
Plaintiff's counsel deposed Defendant James Ho individually and as PMK for Defendants Ocean
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Queen and AAF on September 20, 2022 for a full day, and on January 17, 2023, for a second day. During
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the deposition, Plaintiff's counsel asked Defendant Ho who was paying for Defendant AAF's legal fees,
11 and Defendants' counsel objected that the answer would reveal confidential attorney-client
12 communications. During the deposition, Plaintiff's counsel also questioned whether Defendant Ho had
13 current knowledge of Defendant AAF's business after he testified that Defendant Xie breached his
contract with Defendant Ocean Queen to purchase the stock of Defendant AAF in or after April 2019,
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resulting in Defendant Xie taking possession and control over Defendant AAF's business premises and
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ousting Defendants Ho and Ocean Queen from the business.
16 In the meet and confer correspondence exchanged by counsel before this Motion was filed,
17 Defendants' counsel informed Plaintiff's counsel that there are only two human beings employed by
18 Defendants Ho and Ocean Queen USA, Inc. that have any knowledge whatsoever of any matters
involving or connected to the ownership and operation of Defendant American Abalone Farms, LLC after
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Defendant Xie breached the contract to buy Defendant AAF's membership shares from Defendant Ocean
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Queen, including persons having knowledge of the dispute between Defendant Ocean Queen and
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Defendant Henson Xie involving Defendant Xie's breach of a contract for the purchase of Defendant
22 AAF's LLC shares in or about 2019 and 2020. Declaration of Paul L. Gumina in Opposition to Plaintiff's
23 Motion to Compel, etc. ("Gumina Dec'l.") ¶ 1 and Exhibit A [meet and confer emails, Pages 2 and 7,
24 email from P. Gumina to S. Shahabi sent 2/28/23; Pg. 5, email from P. Gumina to S. Shahabi sent
2/27/23; and Pg. 6, email from P. Gumina to S. Shahabi sent 2/27/23]) In these emails, Defendants'
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counsel offered to produce Defendant Ocean Queen's bookkeeper as a PMK for AAF's continued PMK
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Deposition on March 9, 2023, and to extend the discovery deadline to accommodate a continued PMK
27 Deposition for Defendant AAF. These emails discussed that Defendant AAF would designate Ms. Cui as
28 the PMK for the financial transactions she worked on for Defendants AAF and Ocean Queen before and
Memo of Ps & As In Opposition to Plaintiff’s Motion to Compel, etc. Page 2
1 after Defendant Ocean Queen purchased the LLC membership shares of Defendant AAF, but Plaintiff's
2 counsel refused and demanded that Plaintiff must designate human beings other than Mr. Ho and Ms. Cui
as AAF's PMK, even though no other such person exists. Plaintiff's demands that Defendant AAF
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designate another human as a PMK witness are not made in good faith.
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III. LEGAL ARGUMENTS
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A. Defendant AAF cannot be compelled to produce a person for deposition as a PMK witness who
6 is not currently employed by the Defendants, and when Plaintiff's counsel improperly rejected
Defendants' offer to produce Defendant Ocean Queen's bookkeeper who does have personal
7 knowledge about AAF-Ocean Queen financial transactions in 2019 and 2020 before filing this
Motion.
8
As discussed above, in the meet and confer correspondence exchanged by counsel before this
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Motion was filed, Defendants' counsel informed Plaintiff's counsel that there are only two human beings
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employed by Defendants Ho and Ocean Queen USA, Inc. that have any knowledge whatsoever of any
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matters involving or connected to the ownership and operation of Defendant American Abalone Farms,
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LLC, including persons having knowledge of the dispute between Defendant Ocean Queen and Defendant
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Henson Xie involving Defendant Xie's breach of a contract for the purchase of Defendant AAF's LLC
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shares in or about 2020. (Gumina Dec'l.") ¶ 1 and Exhibit A [meet and confer emails, Pages 2 and 7,
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email from P. Gumina to S. Shahabi sent 2/28/23; Pg. 5, email from P. Gumina to S. Shahabi sent
16
2/27/23; and Pg. 6, email from P. Gumina to S. Shahabi sent 2/27/23]) In these emails, Defendants'
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counsel offered to produce Defendant Ocean Queen's bookkeeper as a PMK for AAF's continued PMK
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Deposition on March 9, 2023, and to extend the discovery deadline to accommodate a continued PMK
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Deposition for Defendant AAF. These emails discussed that Defendant AAF would designate Ms. Cui as
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the PMK for the financial transactions she worked on for Defendants AAF and Ocean Queen in 2018 to
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2020, before and after Defendant Ocean Queen purchased the LLC membership shares of Defendant
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AAF, but Plaintiff's counsel refused and demanded that Plaintiff must designate human beings other than
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Mr. Ho and Ms. Cui as AAF's PMK, even though no other such persons under Defendant's control exist.
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The Court's holding in Maldonado v Superior Court (2002) 94 Cal.App.4th 1390, 1398 contradicts
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the Plaintiff's arguments. The Court held, "First, we make clear who may be compelled to appear when
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the deposition notice seeks the person most knowledgeable within a corporation. The code states that a
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party can procure the attendance of an individual at a deposition by way of notice only if the prospective
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deponent is "a party to the action" or "an officer, director, managing agent, or employee of a party...."
Memo of Ps & As In Opposition to Plaintiff’s Motion to Compel, etc. Page 3
1 (Code Civ. Proa, § 2025, subd. (h)(1).) "The attendance and testimony of any other deponent ... requires
2 the service on the deponent of a deposition subpoena under Section 2020." (§ 2025, subd. (h)(2).) The
3 code applies by its language only to current officers, directors, managing agents, or employees. "Persons
4 formerly affiliated with a party (e.g., former officers or employees) are not required to attend a deposition
5 unless subpoenaed." (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial, supra, ¶ 8:518, p.
6 8E-26.4.) Therefore, ICG was not required to produce former employees in response to the notice just
7 because the former employees are far more knowledgeable about the litigation than anyone currently
8 employed by the company. ICG's duty is limited, as we have said, to producing the most knowledgeable
9 person currently in its employ and making sure that that person has access to information and documents
10 reasonably available within the corporation. (Id. at pp. 1398 - 1399) The Court should overrule
11 Defendant's Motion to Compel Defendant AAF to designate persons other than the persons designated by
12 counsel for Defendant AAF, Mr. Ho and Ms. Cui, as PMKs.
13 II. Plaintiff's Motion To Compel Defendant AAF's further responses to Plaintiff's Form
Interrogatories - General, Set One; Form Interrogatories - Employment, Set One; and Requests for
14 Production of Documents, Set One, is untimely by almost three years, and should be denied.
15 Plaintiff seeks to compel Defendant AAF to provide further responses to discovery. In this
16 motion, Plaintiff never identified specifically what discovery responses are to be compelled, what date the
17 discovery was propounded, and what date were the responses served. The only identification of these
18 discovery requests and responses is stated in opposing counsel's "Declaration Of Sasha Shahabi In
19 Support Of Plaintiff’s Motion For Order Compelling Defendant American Abalone Farms To Produce A
20 Person Most Knowledgeable For Deposition, To Provide Verified Discovery Responses, For An Order
21 Compelling James Ho To Provide An Answer To A Deposition Question, And For Sanctions. ("Shahabi
22 Dec'l.") The following statement on Page 3 of the Shahabi Dec'l. is the only identification of what
23 Plaintiff is seeking this Court to compel: ¶ 10. During the deposition, Mr. Ho testified that he verified the
24 responses to Plaintiff’s requests for production, general form interrogatories, and employment form
25 interrogatories on behalf of American Abalone Farms LLC in 2020 as its CEO. ..." These same non-
26 specific descriptions were also used in the Plaintiff's Notice of Motion, on Page 9, Ln. 13 - 17.
27 However, as shown in Gumina Dec'l, Exhibits B, C and D, Defendant AAF served complete,
28 verified responses in April and May, 2020 to the following discovery propounded to Defendant AAF: 1)
Memo of Ps & As In Opposition to Plaintiff’s Motion to Compel, etc. Page 4
1 Plaintiff's Plaintiff's Requests for Production of Documents, Set One (Gumina Dec'l, Exhibit B); 2)
2 Plaintiff's Form Interrogatories - General, Set One [Gumina Dec'l., Exhibit C) ; and 3) Plaintiff's Form
3 Interrogatories - Employment, Set One (Gumina Dec'l. Exhibit D). AAF's verified responses to Form
4 Interrogatories - General and Form Interrogatories - Employment were timely served on May 20, 2020.
5 Plaintiff's motion to compel further responses to Defendant Pursuant to Code of Civil Procedure,
6 sections 2030.300 (interrogatories) and 2031.310 (demands for production), permit a propounding party
7 to move for an order compelling further discovery responses if the responses (1) are evasive/incomplete;
8 (2) documents produced pursuant to Code of Civil Procedure, section 2030.230 is
9 unwarranted/inadequate; or (3) objection is without merit/too general. There are no statutory grounds for
10 this Court to find that a party's verified discovery responses can be "vacated," "stricken," or somehow
11 declared by this Court to be void or invalid when a propounding party claims that a verification is invalid
12 because it supposedly was not signed by a person entitled to sign them. There is no statutory procedure
13 for this Court to hold a mini-trial to determine whether to strike a discovery verification because its
14 contents are claimed to be false. Plaintiff has provided no authority in support of that proposition. On the
15 contrary, Plaintiff's requested relief, that Defendant AAF's discovery responses and Mr. Ho's verification
16 that accompanied them be "stricken" or declared null and void is a non-monetary discovery sanction.
17 Plaintiff's requests for such implied but actual sanctions are improper, as the Court in Maldonado also
18 held, "Moreover, sanctions involving issue preclusion are not generally imposed at this point in a
19 discovery dispute. Under the statute governing depositions, Code of Civil Procedure section 2025.480 (a)
20 provides: " If a deponent fails to answer any question or to produce any document, electronically stored
21 information, or tangible thing under the deponent's control that is specified in the deposition notice or a
22 deposition subpoena, the party seeking discovery may move the court for an order compelling that answer
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or production." In addition, Section 2025.480 (j) provides, " The court shall impose a monetary sanction
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under Chapter 7 (commencing with Section 2023.010) against any party, person, or attorney who
unsuccessfully makes or opposes a motion to compel an answer or production, unless it finds that the one
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subject to the sanction acted with substantial justification or that other circumstances make the imposition
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of the sanction unjust. As held in the Maldonado case, it is only where a deponent "fails to obey an order
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entered under this subdivision" that the statute permits the court to "make those orders that are just against
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Memo of Ps & As In Opposition to Plaintiff’s Motion to Compel, etc. Page 5
1 the disobedient party, or against the party with whom the disobedient deponent is affiliated, including the
2 imposition of an issue sanction, an evidence sanction, or a terminating sanction under Section 2023."
3 (citation omitted) (Maldonado, supra, 94 Cal.App.4th at pp. 1398 - 1399)
4 Nor does Plaintiff's claim that Defendant Ho's verification are false provide a statutory or legal
5 basis for permitting a propounding party to file a motion to compel further discovery responses almost
6 three years after the statutory deadline for filing these motions has expired. Regarding Defendant AAF's
7 verified responses to the General and Employment Form Interrogatories, Defendant AAF served its
8 responses on April 23, 2020 (Gumina Dec'l., Exhibits C and D). Defendant AAF's verified responses to
9 Plaintiff's RFPs, Set One, was served on May 20, 2020 (Gumina Dec'l. Exhibit B). The 45-day statutory
10 limit to file and serve motions to compel further discovery responses expired almost three years ago.
11 (Civ.Proc.Code § 2030.300 (c) [Interrogatories], and Section 2031.310 (c) [Requests for Production of
12 Documents]). Notice of said motion (c) must be served within 45 days of the service of the verified
13 response (five extra days if mailed pursuant to C.C.P. § 1013) or by a specific date agreed upon in writing
14 by both parties; else the right to bring the motion is waived. This Court should overrule Plaintiff's Motion
15 because it untimely by almost three years.
16 III. Plaintiff offered no authority that the contents of a confidential written attorney fee agreement
describing the payment arrangements between multiple defendants to retain an attorney jointly
17 must be disclosed. On the contrary, in the absence of showing any binding authority, the contents
of such a written fee agreement are confidential and privileged communications under the Attorney
18 Client and Attorney Work Product Privileges.
19 Plaintiff cited L.A. County Board. of Supervisors v. Superior Court (2016) 2 Cal.5th 282, without
20 any pinpoint cite in his meet and confer communication and in this Motion as the sole authority for the
21 proposition that if a defendant is paying the legal fees of a co-defendant, that fact must be disclosed if
22 requested in discovery. However, the decision cited by the Plaintiff did not address or answer that
23 question. That case decided a completely different question, holding, "When a legal matter remains
24 pending and active, the [attorney-client] privilege encompasses everything in an invoice, including the
25 amount of aggregate fees." (Id. at p. 297) The Court in that case declined to order the County to disclose
26 its invoices for legal fees charged by an outside law firm. (Id. at p. 300) The sole case cited by the
27 Plaintiff does not provide authority for the remedy sought, that is, to compel disclosure by all of the
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Memo of Ps & As In Opposition to Plaintiff’s Motion to Compel, etc. Page 6
1 defendants, not just Defendant AAF, of the terms of their confidential written attorney fee agreement for
2 this matter.
3 The Plaintiff's motion did not address the issue or offer any authority that the express terms of a
4 written fee agreement between two defendants and the attorney hired to represent both of them in the
5 same action, and the payment terms set forth in that agreement, are not subject to the attorney client
6 privilege or the attorney work product privilege. However, under California's common interest doctrine,
7 as stated in Evidence Code §§ 912 and 952 (d), these privileges are not waived where one defendant is not
8 in any sense an agent of the other defendant, but is a person or entity with interests of their own to
9 advance in the matter, and their interests that are in some way aligned. (See Behunin v. Superior Court
10 (2017) 9 Cal.App.5th 833, 846) For parties with common interests to protect communications, they must
11 have in common an interest in securing legal advice related to the same matter, and the communications
12 must be made to advance their shared interest in securing legal advice on that common matter. See
13 Roush v. Seagate Technology, LLC (2007) 150 Cal.App.4th 210, 223 (“litigants may nevertheless
14 disclose confidential information without waiving the attorney-client privilege when the disclosure is to
15 ‘those who are present to further the interest of the client in the consultation’ or is ‘reasonably necessary
16 for the transmission of the information or the accomplishment of the purpose for which the lawyer is
17 consulted.’”) Here, all of the defendants are being sued in the same action, for the same causes of action,
18 involving the same transactions and occurrences. There is no authority that this joint representation
19 resulted in any inadvertent waiver of attorney client and attorney work product privileges. The Court
20 should deny the Plaintiff's motion to compel Defendant AAF to disclose its confidential payment
21 arrangements with its attorney.
22 IV. Monetary sanctions are not justified in this case, and if they were, the amount of sanctions
sought is excessive and unjustified.
23
As stated above, the statute governing depositions, Code of Civil Procedure section 2025.480 (a)
24
provides: " If a deponent fails to answer any question or to produce any document, electronically stored
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information, or tangible thing under the deponent's control that is specified in the deposition notice or a
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deposition subpoena, the party seeking discovery may move the court for an order compelling that answer
27
or production." In addition, Section 2025.480 (j) provides, " The court shall impose a monetary sanction
28
under Chapter 7 (commencing with Section 2023.010) against any party, person, or attorney who
Memo of Ps & As In Opposition to Plaintiff’s Motion to Compel, etc. Page 7
1 unsuccessfully makes or opposes a motion to compel an answer or production, unless it finds that the one
2 subject to the sanction acted with substantial justification or that other circumstances make the imposition
3 of the sanction unjust. As held in the Maldonado case, it is only where a deponent "fails to obey an order
4 entered under this subdivision" that the statute permits the court to "make those orders that are just against
5 the disobedient party, or against the party with whom the disobedient deponent is affiliated, including the
6 imposition of an issue sanction, an evidence sanction, or a terminating sanction under Section 2023."
7 (citation omitted) (Maldonado, supra, 94 Cal.App.4th at pp. 1398 - 1399)
8 Here, Defendants AAF and Ho were justified in filing this opposition to this Motion in which
9 Plaintiff's seek three different but similar remedies: 1) Plaintiff's motion to compel Defendant AAF to
10 designate a human being other than Defendant Ho and Ocean Queen's bookkeeper, Ms. Cui, as PMK
11 witnesses has no legal authority to support it, and Plaintiff's counsel filed this motion after Defendants'
12 counsel offered to produce Mr. Ho and Ms. Cui at depositions on dates certain in mid-March, and to even
13 extend the discovery deadline to accommodate continuing the PMK deposition. The refusal by Plaintiff's
14 counsel to accept Defendant AAF's PMK designation was not justified and was not made in good faith,
15 and therefore, no sanctions should apply as Defendant AAF has acted with substantial justification, and
16 the circumstances here would make it unjust for this Court to impose any sanctions.
17 As to Plaintiff's belated motion to compel further discovery responses, the deadline for Plaintiff to
18 have made this motion was 45 days after Defendant AAF served its verified responses, almost three years
19 ago. Plaintiff offered no authority why Defendant AAF's allegedly improper verification should be
20 disregarded, stricken, or that Plaintiff's claim that the verifications are somehow "invalid" or a nullity.
21 There is no justification for Plaintiff to have filed this motion almost three years after the deadline to do
22 so expired. Defendant AAF's opposition on these grounds has substantial justification, and granting
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sanctions would be unjust under the circumstances.
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As to Plaintiff's motion to compel Defendants Ho and AAF to disclose the confidential contents of
their written attorney fee agreement and reveal the payment arrangements they made confidentially with
25
counsel, Plaintiff cited no applicable authority. The only authority cited by Plaintiff's counsel in meet and
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confer correspondence and in this Motion, the L.A. County Board. of Supervisors v. Superior Court case,
27
contained no pinpoint cite nor did the case stand for the proposition that Plaintiff cited it for. On the
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Memo of Ps & As In Opposition to Plaintiff’s Motion to Compel, etc. Page 8
1 contrary, given existing authorities stated in Evidence Code §§ 912 and 952 (d), and the precedent in
2 Behunin v. Superior Court (2017) 9 Cal.App.5th 833, 846 and Roush v. Seagate Technology, LLC (2007)
3 150 Cal.App.4th 210, 223. there was substantial justification for Defendants AAF and Ho to assert
4 attorney client privilege where the Plaintiff sought a client's testimony on the contents of a confidential,
5 written attorney fee agreement. Imposing sanction under these circumstances would be unjust. The Court
6 should deny Plaintiff's request for sanctions under these circumstances.
7 As to monetary sanctions requested, Plaintiff's motion consists of a three-page Notice of Motion, a
8 nine-page Points and Authorities, and a five-page typed declaration of counsel. In other words, this
9 motion consists of a total of 17 typed pages. The legal reasoning exhibited in this motion is threadbare,
10 and filing a motion to compel further discovery responses nearly three years after the deadline to do so
11 expired is without merit or any justification. The Plaintiff seeks monetary sanctions in the sum of
12 $9,118.05, or about $536.00 per page typed by Plaintiff's counsel. This excessive sanctions request is not
13 justified and would result in an unjust and extremely severe penalty against the Defendants. Plaintiff's
14 request for monetary sanctions is unreasonable on its face and should be denied.
15 Finally, Plaintiff's seek an order of this Court to strike Defendant AAF's verifications to its
16 discovery responses and declare them to be void, based on excerpts from Defendant Ho's PMK deposition
17 that were selectively chosen, without any statutory procedure in this motion to hold a "mini-trial" to
18 present evidence and testimony that would contradict opposing counsel interpretation of Mr. Ho's
19 testimony, is another form of issue sanction that is not justified by any legal authority. In conclusion, no
20 monetary or de facto issue sanctions are justified, and this Court should deny this Motion and deny the
21 relief sought by the Plaintiff.
22 Dated: March 13, 2023 Law Offices of Paul L. Gumina, P.C.
23
24
25 Paul L. Gumina
Attorney for Defendants and Cross-Complainants
26 AMERICAN ABALONE FARMS, LLC,
OCEAN QUEEN USA, INC., and Defendant JAMES HO
27
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Memo of Ps & As In Opposition to Plaintiff’s Motion to Compel, etc. Page 9
1 PROOF OF SERVICE
STATE OF CALIFORNIA, COUNTY OF LOS ANGELES) ss.
2 I am a citizen of the United States and employed in the County of Los Angeles, State of
California; I am over the age of 18 years and not a party to the within-entitled action; my business address
3
is 560 W. Main St., Suite 205, Alhambra, CA 91801. On March 13, 2023, I served the foregoing
4 documents, described as follows:
5 DEFENDANTS' MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO
PLAINTIFF'S MOTION FOR ORDER COMPELLING DEFENDANT AMERICAN ABALONE
6 FARMS, LLC TO PRODUCE A PERSON MOST KNOWLEDGEABLE FOR DEPOSITION, TO
PROVIDE VERIFIED DISCOVERY RESPONSES, FOR AN ORDER COMPELLING JAMES
7 HO TO PROVIDE AN ANSWER TO A DEPOSITION QUESTION, AND FOR SANCTIONS
8
on the interested parties to said action by the following means:
9
(By Mail) By placing a true copy thereof, enclosed in a sealed envelope with postage thereon fully
prepaid, for collection and mailing on that date following ordinary business practices, in
10
the United States Mail at 560 W. Main St., Suite 205, Alhambra, California, addressed as
shown below. I am readily familiar with this business's practice for collection and
11 processing of correspondence for mailing with the U.S. Postal Service, and in the ordinary
course of business correspondence would be deposited with the U.S. Postal Service the
12 same day it was placed for collection and processing.
13
X (By Email Transmission) The above-referenced document was transmitted via electronic transmission to the persons
14 at the electronic – email addresses indicated below.
15
(By Hand Delivery) By causing a true copy thereof, enclosed in a sealed envelope, to be delivered by hand to
16 the addresses shown below.
17 (By Overnight Delivery) By placing a true copy thereof, enclosed in a sealed envelope, with delivery charges prepaid,
to be sent by UPS NEXT DAY AIR, addressed as shown below.
18
19 I declare under penalty of perjury that the foregoing is true and correct. Executed on March 13, 2023, in
Alhambra, California.
20
21
22 NAME AND ADDRESS OF EACH PERSON SERVED:
Brad C. Brereton HENSEN XIE aka Shou Hai Xie
23 David J. Terrazas 245 Davenport Landing Rd,
Sasha Shahabi Davenport, CA 95017
Brereton Law Office Email: oceanxie1989@gmail.com
24 1362 Pacific Avenue, Suite 221 Defendant In Pro Per
Santa Cruz, CA 95060
25 Fax: (831) 459-8298
Email: ss@brereton.law
26 Attorneys for Plaintiff and Cross-Defendant
Tom Ebert
27
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Memo of Ps & As In Opposition to Plaintiff’s Motion to Compel, etc. Page 10
Preview
1 Paul L. Gumina (SBN: 160110) Law Offices of Paul L. Gumina, P.C. 2 560 W. Main St., #205 Alhambra, CA 91801 3 Tel: 866-894-8863 4 Fax: 866-894-8867 paul@westcoastbizlaw.com 5 Attorney for Defendants and Cross-Complainants 6 AMERICAN ABALONE FARMS, LLC, OCEAN QUEEN USA, INC., and Defendant JAMES HO 7 8 SUPERIOR COURT OF CALIFORNIA 9 COUNTY OF SANTA CRUZ 10 TOM EBERT, an individual; ) Case No.: 19CV03672 11 ) Plaintiff, ) DEFENDANTS' MEMORANDUM OF POINTS 12 ) AND AUTHORITIES IN OPPOSITION TO 13 VS. ) PLAINTIFF'S MOTION FOR ORDER ) COMPELLING DEFENDANT AMERICAN 14 AMERICAN ABALONE FARMS, LLC, a ) ABALONE FARMS, LLC TO PRODUCE A California Limited Liability Company, OCEAN ) PERSON MOST KNOWLEDGEABLE FOR 15 QUEEN USA, INC., a California Corporation, ) DEPOSITION, TO PROVIDE VERIFIED JAMES HO, an individual, HENSON XIE aka ) DISCOVERY RESPONSES, FOR AN ORDER 16 SHOU HAI XIE, an individual, and DOES 1 To ) COMPELLING JAMES HO TO PROVIDE AN 17 50, inclusive, ) ANSWER TO A DEPOSITION QUESTION, ) AND FOR SANCTIONS 18 Defendants. ) ) DATE: MARCH 16, 2023 19 ) TIME: 8:30 P.M. ) DEPT: 5 20 _________________________________________ ) AND RELATED CROSS-COMPLAINT. ) TRIAL: April 17, 2023 21 ) 22 I. CASE STATUS 23 This action was filed on December 10, 2019. Defendants filed their Answer and the Cross- 24 Complaint against Cross-Defendant Tom Ebert on February 20, 2020, and he answered it on March 25, 25 2020. Upon stipulation of counsel for this Court's order granting leave to amend, the Plaintiff filed his 26 First Amended Complaint ("FAC") on March 4, 2022 adding Defendant Henson Xie aka Shau Hai Xie, 27 and Defendants answered the FAC on April 19, 2022. The Court entered a default against Defendant Xie 28 on April 21, 2022 although the Request for Entry of Default did not seek entry of judgment, and did listed "0" as the amount sought. This case is set for a jury trial on April 17, 2023. Memo of Ps & As In Opposition to Plaintiff’s Motion to Compel, etc. Page 1 1 II. PLAINTIFF'S COUNSEL FAILED TO MEET AND CONFER WITH DEFENDANTS IN GOOD FAITH TO RESOLVE THEIR DISPUTES. 2 Defendants AAF, Ocean Queen, and James Ho served verified written responses on April 24, 3 2020 to Plaintiff's Form Interrogatories - General, Set One, and Form Interrogatories - Employment, Set 4 One. The Defendants also served verified written responses to Plaintiff's Special Interrogatories, Set One, 5 and Requests for Production of Documents, Set One, on May 20, 2020, along with Defendants' document 6 production (Bates Nos. 1 - 104). During the subsequent almost three years, Plaintiff's counsel raised no 7 dispute about the sufficiency of these responses or the verifications, and Plaintiff did not file a motion to 8 compel further responses. Plaintiff's counsel deposed Defendant James Ho individually and as PMK for Defendants Ocean 9 Queen and AAF on September 20, 2022 for a full day, and on January 17, 2023, for a second day. During 10 the deposition, Plaintiff's counsel asked Defendant Ho who was paying for Defendant AAF's legal fees, 11 and Defendants' counsel objected that the answer would reveal confidential attorney-client 12 communications. During the deposition, Plaintiff's counsel also questioned whether Defendant Ho had 13 current knowledge of Defendant AAF's business after he testified that Defendant Xie breached his contract with Defendant Ocean Queen to purchase the stock of Defendant AAF in or after April 2019, 14 resulting in Defendant Xie taking possession and control over Defendant AAF's business premises and 15 ousting Defendants Ho and Ocean Queen from the business. 16 In the meet and confer correspondence exchanged by counsel before this Motion was filed, 17 Defendants' counsel informed Plaintiff's counsel that there are only two human beings employed by 18 Defendants Ho and Ocean Queen USA, Inc. that have any knowledge whatsoever of any matters involving or connected to the ownership and operation of Defendant American Abalone Farms, LLC after 19 Defendant Xie breached the contract to buy Defendant AAF's membership shares from Defendant Ocean 20 Queen, including persons having knowledge of the dispute between Defendant Ocean Queen and 21 Defendant Henson Xie involving Defendant Xie's breach of a contract for the purchase of Defendant 22 AAF's LLC shares in or about 2019 and 2020. Declaration of Paul L. Gumina in Opposition to Plaintiff's 23 Motion to Compel, etc. ("Gumina Dec'l.") ¶ 1 and Exhibit A [meet and confer emails, Pages 2 and 7, 24 email from P. Gumina to S. Shahabi sent 2/28/23; Pg. 5, email from P. Gumina to S. Shahabi sent 2/27/23; and Pg. 6, email from P. Gumina to S. Shahabi sent 2/27/23]) In these emails, Defendants' 25 counsel offered to produce Defendant Ocean Queen's bookkeeper as a PMK for AAF's continued PMK 26 Deposition on March 9, 2023, and to extend the discovery deadline to accommodate a continued PMK 27 Deposition for Defendant AAF. These emails discussed that Defendant AAF would designate Ms. Cui as 28 the PMK for the financial transactions she worked on for Defendants AAF and Ocean Queen before and Memo of Ps & As In Opposition to Plaintiff’s Motion to Compel, etc. Page 2 1 after Defendant Ocean Queen purchased the LLC membership shares of Defendant AAF, but Plaintiff's 2 counsel refused and demanded that Plaintiff must designate human beings other than Mr. Ho and Ms. Cui as AAF's PMK, even though no other such person exists. Plaintiff's demands that Defendant AAF 3 designate another human as a PMK witness are not made in good faith. 4 III. LEGAL ARGUMENTS 5 A. Defendant AAF cannot be compelled to produce a person for deposition as a PMK witness who 6 is not currently employed by the Defendants, and when Plaintiff's counsel improperly rejected Defendants' offer to produce Defendant Ocean Queen's bookkeeper who does have personal 7 knowledge about AAF-Ocean Queen financial transactions in 2019 and 2020 before filing this Motion. 8 As discussed above, in the meet and confer correspondence exchanged by counsel before this 9 Motion was filed, Defendants' counsel informed Plaintiff's counsel that there are only two human beings 10 employed by Defendants Ho and Ocean Queen USA, Inc. that have any knowledge whatsoever of any 11 matters involving or connected to the ownership and operation of Defendant American Abalone Farms, 12 LLC, including persons having knowledge of the dispute between Defendant Ocean Queen and Defendant 13 Henson Xie involving Defendant Xie's breach of a contract for the purchase of Defendant AAF's LLC 14 shares in or about 2020. (Gumina Dec'l.") ¶ 1 and Exhibit A [meet and confer emails, Pages 2 and 7, 15 email from P. Gumina to S. Shahabi sent 2/28/23; Pg. 5, email from P. Gumina to S. Shahabi sent 16 2/27/23; and Pg. 6, email from P. Gumina to S. Shahabi sent 2/27/23]) In these emails, Defendants' 17 counsel offered to produce Defendant Ocean Queen's bookkeeper as a PMK for AAF's continued PMK 18 Deposition on March 9, 2023, and to extend the discovery deadline to accommodate a continued PMK 19 Deposition for Defendant AAF. These emails discussed that Defendant AAF would designate Ms. Cui as 20 the PMK for the financial transactions she worked on for Defendants AAF and Ocean Queen in 2018 to 21 2020, before and after Defendant Ocean Queen purchased the LLC membership shares of Defendant 22 AAF, but Plaintiff's counsel refused and demanded that Plaintiff must designate human beings other than 23 Mr. Ho and Ms. Cui as AAF's PMK, even though no other such persons under Defendant's control exist. 24 The Court's holding in Maldonado v Superior Court (2002) 94 Cal.App.4th 1390, 1398 contradicts 25 the Plaintiff's arguments. The Court held, "First, we make clear who may be compelled to appear when 26 the deposition notice seeks the person most knowledgeable within a corporation. The code states that a 27 party can procure the attendance of an individual at a deposition by way of notice only if the prospective 28 deponent is "a party to the action" or "an officer, director, managing agent, or employee of a party...." Memo of Ps & As In Opposition to Plaintiff’s Motion to Compel, etc. Page 3 1 (Code Civ. Proa, § 2025, subd. (h)(1).) "The attendance and testimony of any other deponent ... requires 2 the service on the deponent of a deposition subpoena under Section 2020." (§ 2025, subd. (h)(2).) The 3 code applies by its language only to current officers, directors, managing agents, or employees. "Persons 4 formerly affiliated with a party (e.g., former officers or employees) are not required to attend a deposition 5 unless subpoenaed." (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial, supra, ¶ 8:518, p. 6 8E-26.4.) Therefore, ICG was not required to produce former employees in response to the notice just 7 because the former employees are far more knowledgeable about the litigation than anyone currently 8 employed by the company. ICG's duty is limited, as we have said, to producing the most knowledgeable 9 person currently in its employ and making sure that that person has access to information and documents 10 reasonably available within the corporation. (Id. at pp. 1398 - 1399) The Court should overrule 11 Defendant's Motion to Compel Defendant AAF to designate persons other than the persons designated by 12 counsel for Defendant AAF, Mr. Ho and Ms. Cui, as PMKs. 13 II. Plaintiff's Motion To Compel Defendant AAF's further responses to Plaintiff's Form Interrogatories - General, Set One; Form Interrogatories - Employment, Set One; and Requests for 14 Production of Documents, Set One, is untimely by almost three years, and should be denied. 15 Plaintiff seeks to compel Defendant AAF to provide further responses to discovery. In this 16 motion, Plaintiff never identified specifically what discovery responses are to be compelled, what date the 17 discovery was propounded, and what date were the responses served. The only identification of these 18 discovery requests and responses is stated in opposing counsel's "Declaration Of Sasha Shahabi In 19 Support Of Plaintiff’s Motion For Order Compelling Defendant American Abalone Farms To Produce A 20 Person Most Knowledgeable For Deposition, To Provide Verified Discovery Responses, For An Order 21 Compelling James Ho To Provide An Answer To A Deposition Question, And For Sanctions. ("Shahabi 22 Dec'l.") The following statement on Page 3 of the Shahabi Dec'l. is the only identification of what 23 Plaintiff is seeking this Court to compel: ¶ 10. During the deposition, Mr. Ho testified that he verified the 24 responses to Plaintiff’s requests for production, general form interrogatories, and employment form 25 interrogatories on behalf of American Abalone Farms LLC in 2020 as its CEO. ..." These same non- 26 specific descriptions were also used in the Plaintiff's Notice of Motion, on Page 9, Ln. 13 - 17. 27 However, as shown in Gumina Dec'l, Exhibits B, C and D, Defendant AAF served complete, 28 verified responses in April and May, 2020 to the following discovery propounded to Defendant AAF: 1) Memo of Ps & As In Opposition to Plaintiff’s Motion to Compel, etc. Page 4 1 Plaintiff's Plaintiff's Requests for Production of Documents, Set One (Gumina Dec'l, Exhibit B); 2) 2 Plaintiff's Form Interrogatories - General, Set One [Gumina Dec'l., Exhibit C) ; and 3) Plaintiff's Form 3 Interrogatories - Employment, Set One (Gumina Dec'l. Exhibit D). AAF's verified responses to Form 4 Interrogatories - General and Form Interrogatories - Employment were timely served on May 20, 2020. 5 Plaintiff's motion to compel further responses to Defendant Pursuant to Code of Civil Procedure, 6 sections 2030.300 (interrogatories) and 2031.310 (demands for production), permit a propounding party 7 to move for an order compelling further discovery responses if the responses (1) are evasive/incomplete; 8 (2) documents produced pursuant to Code of Civil Procedure, section 2030.230 is 9 unwarranted/inadequate; or (3) objection is without merit/too general. There are no statutory grounds for 10 this Court to find that a party's verified discovery responses can be "vacated," "stricken," or somehow 11 declared by this Court to be void or invalid when a propounding party claims that a verification is invalid 12 because it supposedly was not signed by a person entitled to sign them. There is no statutory procedure 13 for this Court to hold a mini-trial to determine whether to strike a discovery verification because its 14 contents are claimed to be false. Plaintiff has provided no authority in support of that proposition. On the 15 contrary, Plaintiff's requested relief, that Defendant AAF's discovery responses and Mr. Ho's verification 16 that accompanied them be "stricken" or declared null and void is a non-monetary discovery sanction. 17 Plaintiff's requests for such implied but actual sanctions are improper, as the Court in Maldonado also 18 held, "Moreover, sanctions involving issue preclusion are not generally imposed at this point in a 19 discovery dispute. Under the statute governing depositions, Code of Civil Procedure section 2025.480 (a) 20 provides: " If a deponent fails to answer any question or to produce any document, electronically stored 21 information, or tangible thing under the deponent's control that is specified in the deposition notice or a 22 deposition subpoena, the party seeking discovery may move the court for an order compelling that answer 23 or production." In addition, Section 2025.480 (j) provides, " The court shall impose a monetary sanction 24 under Chapter 7 (commencing with Section 2023.010) against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel an answer or production, unless it finds that the one 25 subject to the sanction acted with substantial justification or that other circumstances make the imposition 26 of the sanction unjust. As held in the Maldonado case, it is only where a deponent "fails to obey an order 27 entered under this subdivision" that the statute permits the court to "make those orders that are just against 28 Memo of Ps & As In Opposition to Plaintiff’s Motion to Compel, etc. Page 5 1 the disobedient party, or against the party with whom the disobedient deponent is affiliated, including the 2 imposition of an issue sanction, an evidence sanction, or a terminating sanction under Section 2023." 3 (citation omitted) (Maldonado, supra, 94 Cal.App.4th at pp. 1398 - 1399) 4 Nor does Plaintiff's claim that Defendant Ho's verification are false provide a statutory or legal 5 basis for permitting a propounding party to file a motion to compel further discovery responses almost 6 three years after the statutory deadline for filing these motions has expired. Regarding Defendant AAF's 7 verified responses to the General and Employment Form Interrogatories, Defendant AAF served its 8 responses on April 23, 2020 (Gumina Dec'l., Exhibits C and D). Defendant AAF's verified responses to 9 Plaintiff's RFPs, Set One, was served on May 20, 2020 (Gumina Dec'l. Exhibit B). The 45-day statutory 10 limit to file and serve motions to compel further discovery responses expired almost three years ago. 11 (Civ.Proc.Code § 2030.300 (c) [Interrogatories], and Section 2031.310 (c) [Requests for Production of 12 Documents]). Notice of said motion (c) must be served within 45 days of the service of the verified 13 response (five extra days if mailed pursuant to C.C.P. § 1013) or by a specific date agreed upon in writing 14 by both parties; else the right to bring the motion is waived. This Court should overrule Plaintiff's Motion 15 because it untimely by almost three years. 16 III. Plaintiff offered no authority that the contents of a confidential written attorney fee agreement describing the payment arrangements between multiple defendants to retain an attorney jointly 17 must be disclosed. On the contrary, in the absence of showing any binding authority, the contents of such a written fee agreement are confidential and privileged communications under the Attorney 18 Client and Attorney Work Product Privileges. 19 Plaintiff cited L.A. County Board. of Supervisors v. Superior Court (2016) 2 Cal.5th 282, without 20 any pinpoint cite in his meet and confer communication and in this Motion as the sole authority for the 21 proposition that if a defendant is paying the legal fees of a co-defendant, that fact must be disclosed if 22 requested in discovery. However, the decision cited by the Plaintiff did not address or answer that 23 question. That case decided a completely different question, holding, "When a legal matter remains 24 pending and active, the [attorney-client] privilege encompasses everything in an invoice, including the 25 amount of aggregate fees." (Id. at p. 297) The Court in that case declined to order the County to disclose 26 its invoices for legal fees charged by an outside law firm. (Id. at p. 300) The sole case cited by the 27 Plaintiff does not provide authority for the remedy sought, that is, to compel disclosure by all of the 28 Memo of Ps & As In Opposition to Plaintiff’s Motion to Compel, etc. Page 6 1 defendants, not just Defendant AAF, of the terms of their confidential written attorney fee agreement for 2 this matter. 3 The Plaintiff's motion did not address the issue or offer any authority that the express terms of a 4 written fee agreement between two defendants and the attorney hired to represent both of them in the 5 same action, and the payment terms set forth in that agreement, are not subject to the attorney client 6 privilege or the attorney work product privilege. However, under California's common interest doctrine, 7 as stated in Evidence Code §§ 912 and 952 (d), these privileges are not waived where one defendant is not 8 in any sense an agent of the other defendant, but is a person or entity with interests of their own to 9 advance in the matter, and their interests that are in some way aligned. (See Behunin v. Superior Court 10 (2017) 9 Cal.App.5th 833, 846) For parties with common interests to protect communications, they must 11 have in common an interest in securing legal advice related to the same matter, and the communications 12 must be made to advance their shared interest in securing legal advice on that common matter. See 13 Roush v. Seagate Technology, LLC (2007) 150 Cal.App.4th 210, 223 (“litigants may nevertheless 14 disclose confidential information without waiving the attorney-client privilege when the disclosure is to 15 ‘those who are present to further the interest of the client in the consultation’ or is ‘reasonably necessary 16 for the transmission of the information or the accomplishment of the purpose for which the lawyer is 17 consulted.’”) Here, all of the defendants are being sued in the same action, for the same causes of action, 18 involving the same transactions and occurrences. There is no authority that this joint representation 19 resulted in any inadvertent waiver of attorney client and attorney work product privileges. The Court 20 should deny the Plaintiff's motion to compel Defendant AAF to disclose its confidential payment 21 arrangements with its attorney. 22 IV. Monetary sanctions are not justified in this case, and if they were, the amount of sanctions sought is excessive and unjustified. 23 As stated above, the statute governing depositions, Code of Civil Procedure section 2025.480 (a) 24 provides: " If a deponent fails to answer any question or to produce any document, electronically stored 25 information, or tangible thing under the deponent's control that is specified in the deposition notice or a 26 deposition subpoena, the party seeking discovery may move the court for an order compelling that answer 27 or production." In addition, Section 2025.480 (j) provides, " The court shall impose a monetary sanction 28 under Chapter 7 (commencing with Section 2023.010) against any party, person, or attorney who Memo of Ps & As In Opposition to Plaintiff’s Motion to Compel, etc. Page 7 1 unsuccessfully makes or opposes a motion to compel an answer or production, unless it finds that the one 2 subject to the sanction acted with substantial justification or that other circumstances make the imposition 3 of the sanction unjust. As held in the Maldonado case, it is only where a deponent "fails to obey an order 4 entered under this subdivision" that the statute permits the court to "make those orders that are just against 5 the disobedient party, or against the party with whom the disobedient deponent is affiliated, including the 6 imposition of an issue sanction, an evidence sanction, or a terminating sanction under Section 2023." 7 (citation omitted) (Maldonado, supra, 94 Cal.App.4th at pp. 1398 - 1399) 8 Here, Defendants AAF and Ho were justified in filing this opposition to this Motion in which 9 Plaintiff's seek three different but similar remedies: 1) Plaintiff's motion to compel Defendant AAF to 10 designate a human being other than Defendant Ho and Ocean Queen's bookkeeper, Ms. Cui, as PMK 11 witnesses has no legal authority to support it, and Plaintiff's counsel filed this motion after Defendants' 12 counsel offered to produce Mr. Ho and Ms. Cui at depositions on dates certain in mid-March, and to even 13 extend the discovery deadline to accommodate continuing the PMK deposition. The refusal by Plaintiff's 14 counsel to accept Defendant AAF's PMK designation was not justified and was not made in good faith, 15 and therefore, no sanctions should apply as Defendant AAF has acted with substantial justification, and 16 the circumstances here would make it unjust for this Court to impose any sanctions. 17 As to Plaintiff's belated motion to compel further discovery responses, the deadline for Plaintiff to 18 have made this motion was 45 days after Defendant AAF served its verified responses, almost three years 19 ago. Plaintiff offered no authority why Defendant AAF's allegedly improper verification should be 20 disregarded, stricken, or that Plaintiff's claim that the verifications are somehow "invalid" or a nullity. 21 There is no justification for Plaintiff to have filed this motion almost three years after the deadline to do 22 so expired. Defendant AAF's opposition on these grounds has substantial justification, and granting 23 sanctions would be unjust under the circumstances. 24 As to Plaintiff's motion to compel Defendants Ho and AAF to disclose the confidential contents of their written attorney fee agreement and reveal the payment arrangements they made confidentially with 25 counsel, Plaintiff cited no applicable authority. The only authority cited by Plaintiff's counsel in meet and 26 confer correspondence and in this Motion, the L.A. County Board. of Supervisors v. Superior Court case, 27 contained no pinpoint cite nor did the case stand for the proposition that Plaintiff cited it for. On the 28 Memo of Ps & As In Opposition to Plaintiff’s Motion to Compel, etc. Page 8 1 contrary, given existing authorities stated in Evidence Code §§ 912 and 952 (d), and the precedent in 2 Behunin v. Superior Court (2017) 9 Cal.App.5th 833, 846 and Roush v. Seagate Technology, LLC (2007) 3 150 Cal.App.4th 210, 223. there was substantial justification for Defendants AAF and Ho to assert 4 attorney client privilege where the Plaintiff sought a client's testimony on the contents of a confidential, 5 written attorney fee agreement. Imposing sanction under these circumstances would be unjust. The Court 6 should deny Plaintiff's request for sanctions under these circumstances. 7 As to monetary sanctions requested, Plaintiff's motion consists of a three-page Notice of Motion, a 8 nine-page Points and Authorities, and a five-page typed declaration of counsel. In other words, this 9 motion consists of a total of 17 typed pages. The legal reasoning exhibited in this motion is threadbare, 10 and filing a motion to compel further discovery responses nearly three years after the deadline to do so 11 expired is without merit or any justification. The Plaintiff seeks monetary sanctions in the sum of 12 $9,118.05, or about $536.00 per page typed by Plaintiff's counsel. This excessive sanctions request is not 13 justified and would result in an unjust and extremely severe penalty against the Defendants. Plaintiff's 14 request for monetary sanctions is unreasonable on its face and should be denied. 15 Finally, Plaintiff's seek an order of this Court to strike Defendant AAF's verifications to its 16 discovery responses and declare them to be void, based on excerpts from Defendant Ho's PMK deposition 17 that were selectively chosen, without any statutory procedure in this motion to hold a "mini-trial" to 18 present evidence and testimony that would contradict opposing counsel interpretation of Mr. Ho's 19 testimony, is another form of issue sanction that is not justified by any legal authority. In conclusion, no 20 monetary or de facto issue sanctions are justified, and this Court should deny this Motion and deny the 21 relief sought by the Plaintiff. 22 Dated: March 13, 2023 Law Offices of Paul L. Gumina, P.C. 23 24 25 Paul L. Gumina Attorney for Defendants and Cross-Complainants 26 AMERICAN ABALONE FARMS, LLC, OCEAN QUEEN USA, INC., and Defendant JAMES HO 27 28 Memo of Ps & As In Opposition to Plaintiff’s Motion to Compel, etc. Page 9 1 PROOF OF SERVICE STATE OF CALIFORNIA, COUNTY OF LOS ANGELES) ss. 2 I am a citizen of the United States and employed in the County of Los Angeles, State of California; I am over the age of 18 years and not a party to the within-entitled action; my business address 3 is 560 W. Main St., Suite 205, Alhambra, CA 91801. On March 13, 2023, I served the foregoing 4 documents, described as follows: 5 DEFENDANTS' MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO PLAINTIFF'S MOTION FOR ORDER COMPELLING DEFENDANT AMERICAN ABALONE 6 FARMS, LLC TO PRODUCE A PERSON MOST KNOWLEDGEABLE FOR DEPOSITION, TO PROVIDE VERIFIED DISCOVERY RESPONSES, FOR AN ORDER COMPELLING JAMES 7 HO TO PROVIDE AN ANSWER TO A DEPOSITION QUESTION, AND FOR SANCTIONS 8 on the interested parties to said action by the following means: 9 (By Mail) By placing a true copy thereof, enclosed in a sealed envelope with postage thereon fully prepaid, for collection and mailing on that date following ordinary business practices, in 10 the United States Mail at 560 W. Main St., Suite 205, Alhambra, California, addressed as shown below. I am readily familiar with this business's practice for collection and 11 processing of correspondence for mailing with the U.S. Postal Service, and in the ordinary course of business correspondence would be deposited with the U.S. Postal Service the 12 same day it was placed for collection and processing. 13 X (By Email Transmission) The above-referenced document was transmitted via electronic transmission to the persons 14 at the electronic – email addresses indicated below. 15 (By Hand Delivery) By causing a true copy thereof, enclosed in a sealed envelope, to be delivered by hand to 16 the addresses shown below. 17 (By Overnight Delivery) By placing a true copy thereof, enclosed in a sealed envelope, with delivery charges prepaid, to be sent by UPS NEXT DAY AIR, addressed as shown below. 18 19 I declare under penalty of perjury that the foregoing is true and correct. Executed on March 13, 2023, in Alhambra, California. 20 21 22 NAME AND ADDRESS OF EACH PERSON SERVED: Brad C. Brereton HENSEN XIE aka Shou Hai Xie 23 David J. Terrazas 245 Davenport Landing Rd, Sasha Shahabi Davenport, CA 95017 Brereton Law Office Email: oceanxie1989@gmail.com 24 1362 Pacific Avenue, Suite 221 Defendant In Pro Per Santa Cruz, CA 95060 25 Fax: (831) 459-8298 Email: ss@brereton.law 26 Attorneys for Plaintiff and Cross-Defendant Tom Ebert 27 28 Memo of Ps & As In Opposition to Plaintiff’s Motion to Compel, etc. Page 10