Motion for Sanctions in Youquin Cao et al vs California Homes and Kitchen Design Center, Inc. et al| Trellis.Law

On March 25, 2009 a Motion-Secondary was filed involving a dispute between and for Other Real Property Unlimited (26) in the District Court of Santa Clara County.

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170V318162
Santa Clara — Civil

P. Hernandez

MORGAN, LEWIS & BOCKIUS LLP Electronically Filed
Melinda S. Riechert, Bar No. 65504 by Superior Court of CA,
1400 Page Mill Road County of Santa Clara,
Palo Alto, California 94304 on 2/18/2022 12:09 PM
Telephone: +1.650.843.4000
Facsimile: +1.650.843.4001
Reviewed By: P. Hernandez
melinda.riechert@morganlewis.com Case #17CV318162
Envelope: 8326134
Joseph R. Lewis, Bar No. 316770
One Market, Spear Street Tower
San Francisco, California 94105-1596
Telephone: +1.415.442.1000
Facsimile: +1.415.442.1001
joseph.lewis@morganlewis.com

Attorneys for Defendants
SAMSUNG RESEARCH AMERICA, INC.,
PRANAV MISTRY, and SAJID SADI
10

11 SUPERIOR COURT OF THE STATE OF CALIFORNIA

12 COUNTY OF SANTA CLARA

14 JAWAHAR JAIN, an individual, Case No. 17CV318162

15 Plaintiff, DEFENDANTS’ NOTICE OF MOTION
AND MOTION FOR SANCTIONS
16 Vv. PURSUANT TO SECTION 128.7
REGARDING PLAINTIFF’S
17 SAMSUNG RESEARCH AMERICA, INC., OBJECTIONS TO REFEREE’S
a California corporation; PRANAV MISTRY, PROPOSED ORDERS RE:
18 an individual; SAJID SADI, an individual; and PLAINTIFF’S MOTIONS FOR
DOES 1 through 100, inclusive, SANCTIONS AND TO DISQUALIFY
19 DEFENDANTS’ COUNSEL
Defendants.
20 Trial Date: March 21, 2022
Dept: 19
21 Date: TBD
Time: TBD
22

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DEFENDANTS’ NOTICE OF MOTION AND MOTION FOR SANCTIONS PURSUANT TO CCP § 128.7 RE
OBJECTION TO REFEREE’S ORDERS
TABLE OF CONTENTS
Page

INTRODUCTION
IL. STATEMENT OF FACTS AND PROCEDURAL HISTORY

A Plaintiff's Counsel Has Engaged in Scorched Earth Tactics in the
Litigation
B Plaintiff Lost His Primary Claim for Damages on Summary Adjudication
C After Plaintiff Failed to Revive Hisis Wrongfal Termination Claim, He
Turned to Forgery Allegations...

TIL. LEGAL STANDARD
PLAINTIFF’S AND HIS COUNSEL’S OBJECTIONS TO JUDGE KLEINBERG
ORDERS IS SANCTIONABLE UNDER CCP 128.7 .....ssssssssessssessessesseeseeseesesseensaeseensesee 5
THE OBJECTIONS TO JUDGE KLEINBERG’S ORDERS MEET THE
CRITERIA UNDER CCP 128.7(B).

10 A Judge Kleinberg Signed a Declaration Stating That He Reviewed the
Filings of Both Sides. Plaintiff's Objections Arguing that He Did Not is
11
Itself Sanctionable
12 Plaintiff's Argument that Judge a Misread the Summary
Adjudication Order is Sanctionable...
13 Plaintiff's Objections to Judge Kleinberg” s Findings That There Was No-
Forgery Is Sanctionable.
14
Plaintiff's Objections to Judge Kleinberg’s Disqualification Order Is
15 Sanctionable 10
Plaintiff and His Counsel’s Continued Insistence That Defense Counsel
16 Created Plaintiff's Counsel’s Keyboard Problems Is Sanctionable : 10
17 Plaintiff's Allegation That Judge Kleinberg Was Biased Is Sanctionable 11
Plaintiff's Counsel’s Continued Reference To The Fact That Morgan Lewis
18 Partner Tess Blair Submitted A Declaration In Support Of Defendants
Motion Without Being Admitted Pro Hac Vice Is Sanctionable 12
19
H Plaintiff's Other Objections to Judge Kleinberg’s Findings Are Also
20 Sanctionable... 13
Defendant Requests That The Court ‘Award It $35, ‘465 ih Sanctions |
21 Against Both Plaintiff And His Counsel 14
22 VI CONCLUSION 15
23

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ATTORNEYS ATLAW -i-
SILICON VALLEY
TABLE OF AUTHORITIES

Page(s)

Cases

Business Guides, Inc. v. Chromatic Commc’n Enter., Inc.
(1991) 498 U.S. 533...

Cooter & Gell v. Hartmarx Corp.
(1990) 496 U.S. 384

Cromwell v. Cummings,
65 Cal. App.4th 10 (1998).
Davis v. City of San Diego
10
(2003) 106 Cal. App. 4th 893 14
11
Donovan v. Poway Unified Sch. Dist.,
12 167 Cal. App. 4th 567 (2008) 14

13 Golden Eagle Distrib. Corp. v. Burroughs Corp.
(9th Cir. 1986) 801 F.2d 1531
14
Guthrey v. State of California,
15
63 Cal. App. 4th 1108 (1998). 4,5
16
In re HPL Technologies, Inc. Securities Litigation,
17 366 F. Supp. 912 (N.D. Cal. 2005) 15

18 Musaelian v. Adams,
45 Cal. 4th 512 (2009)...
19
Peake v. Underwood,
20 227 Cal. App. 4th 428 (2014)
21
PLCM Group, In. v. Drexler,
22 22 Cal. 4th 1084 (2000) 14

23 Sino Century Dev. Ltd. v. Farley,
211 Cal. App. 4th 688 (2012) 15
24
Syers Properties III, Inc. v. Rankin,
25 226 Cal. App. 4th 691, 697 (2nd Div. 2014) . 15
26 Statutes
27
Black Law ............. 13
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DEFENDANTS’ NOTICE OF MOTION AND MOTION FOR SANCTIONS PURSUANT TO CCP § 128.7 RE
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Code of Civil Procedure §128.7. passim

Code of Civil Procedure Section 128.7(b)

Code of Civil Procedure § 128.7(d) 14

Code of Civil Procedure Section 128.7(h).............

Code of Civil Procedure §639

Other Authorities

Federal Rule of Civil Procedure 11

Order for Terminating Sanctions under Section 2030.030

Rule 2.30(d) 15
10
Sedona Conference, https://thesedonaconference.org/ 12
11

28
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SiUICoW VALLEY DEFENDANTS’ NOTICE OF MOTION AND MOTION FOR SANCTIONS PURSUANT TO CCP § 128.7 RE
OBJECTION TO REFEREE’S ORDERS
TO PLAINTIFF JAWAHAR JAIN AND HIS ATTORNEYS OF RECORD:

PLEASE TAKE NOTICE that, unless Plaintiff withdraws his Objections to the

Proposed Orders issued by The Honorable James P. Kleinberg (ret.), within twenty-one (21) days

after the date of service of this motion or such other time as the Court may prescribe, Defendants

Samsung Research America, Inc. (“SRA”), Pranav Mistry, and Sajid Sadi (“Defendants”) will

move this Court for an order awarding sanctions against Plaintiff and his attorney under Code of

Civil Procedure Section 128.7(b) for the attorneys’ fees and other expenses that have been and

will be expended by Defendants in responding to Plaintiff's Objections and preparing this

Motion. The Motion is made upon the grounds that Plaintiff's Objections were brought primarily

10 for an improper purpose, such as to harass or to cause unnecessary delay or needlessly increase in

11 the cost of litigation, the claims, defenses, and other legal contentions therein were not warranted

12 by existing law, and the allegations and other factual contentions had no evidentiary support.

13 This Motion is based upon this notice, the attached memorandum of points and authorities, the

14 attached declaration of Joseph R. Lewis, the Orders of Judge Kleinberg, and upon the pleadings

15 and records in this action.

16 Dated: January 27, 2022 MORGAN, LEWIS BOCKIUS LLP

17
By: /s/ Melinda S. Riechert
18 Melinda S. Riechert
Joseph R. Lewis
19 Attorneys for Defendants
SAMSUNG RESEARCH AMERICA, INC.,
20 SAJID SADL and PRANAV MISTRY

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MEMORANDUM OF POINTS AND AUTHORITIES

I INTRODUCTION
In July and August 2021, Plaintiff filed three motions: (1) a Motion for Terminating,

Issue, and Monetary Sanctions against Defendants, (2) a Motion to Disqualify Defendants’

Counsel, and (3) a Motion for Sanctions Pursuant to Section 128.7 (“Motions”). Judge Kirwan

began his review of Plaintiff's Motions but based on how extensive the Motions were, he

appointed the Honorable James P. Kleinberg (ret.) as a Referee under CCP §639 to decide the

Motions. Judge Kleinberg denied each of the Motions in their entirety and recommended that

10 Plaintiff and his counsel be sanctioned for bringing the Motions. Judge Kleinberg sternly rebuked

11 Plaintiff and his counsel:

12 “This motion should never have been brought. The obvious conclusion is that,
having lost the motion to have essential claims dismissed pursuant to the Court’s
13 September 10, 2020 Order, Plaintiff — and, more precisely, his counsel — are using
14 every procedural device to try and extort a payment by Defendants by threats.”

Declaration of Joseph R. Lewis (“Lewis Decl.”) 4 3, Ex. A, pp. 5:26-6:2.
15

16 “{T]he underlying history shows this to be a third attempt by Plaintiff to reverse
decisions of the Superior Court and the Court of Appeal denying his claims for
17 wrongful termination and lost wages . . . It is apparent the instant motion directed.
at Samsung’s counsel is a similar attempt by Plaintiff.”
18
Lewis Decl. 4 4, Ex. B, p. 8:3-8.
19
“(r]ather than accept those decisions Plaintiff has initiated a round of accusations
20 directed to both Defendants and their counsel. As shown in multiple briefs and
summarized in the Referee’s Proposed Orders on the issues of Code of Civil
21 Procedure §128.7 and Terminating Sanctions, Plaintiff's attacks are failures. The
instant motion [Plaintiff's Motion for Disqualification of Defense Counsel] is a
22 last gasp attack, this time directed at defense counsel, who are accused of forgery,
doctoring evidence, and sabotaging Plaintiff's counsel’s computer. Enough is
23 enough. It is time for Plaintiff and his counsel to face reality.”
24 Lewis Decl. {| 5, Ex. C, pp. 2:24-3:3.

25 Judge Kleinberg also authorized the Court to award countersanctions against Plaintiff

26 because his allegations against Defendants and their counsel were unwarranted:

27 “Although Defendants did not request compensation from Plaintiff or his counsel
for having to respond to this ploy it would not be improper for such a sanction to
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Lewis Decl. 3, Ex. A, p. 6:2-4.

“Here, Section (h) of 128.7 applies, and Defendant is entitled to recover the fees
and costs in opposing this motion. An application by Defendant for fees and costs
may be submitted if the Court approves this finding by the Referee.”

Lewis Decl. § 4, Ex. B, p. 8:8-10.
Plaintiff then filed Objections to all three Orders of Judge Kleinberg. Defendants filed

Responses to each of the Objections. As shown by Plaintiff's meritless Objections to each of

Judge Kleinberg’s orders, there was no basis for Plaintiff and his counsel to object and they

should be sanctioned for doing so. This sanctions request should also be assigned to Judge

Kleinberg for decision, given his knowledge of the issues.
10
IL. STATEMENT OF FACTS AND PROCEDURAL HISTORY
11
A Plaintiff's Counsel Has Engaged in Scorched Earth Tactics in the Litigation
12
In this single plaintiff case, Plaintiff has propounded hundreds of written discovery
13
requests to each Defendant, taken nine depositions, filed several motions to compel, petitioned for
14
two writs to the Court of Appeal, brought two requests for terminating sanctions, and threatened a
15
federal class action lawsuit against Defendants’ counsel. Lewis Decl. 4 6.
16
B. Plaintiff Lost His Primary Claim for Damages on Summary Adjudication
17
In September 2020, Plaintiff lost his claims for lost wages and emotional distress
18
stemming from the termination when this Court summarily adjudicated Plaintiff's claim for
19
wrongful termination. Lewis Decl. J 7, Ex. D, pp. 27, 30. Specifically, the Court found that SRA
20
terminated Plaintiff's employment for “‘a legitimate, non-retaliatory, and non-discriminatory
21
reason.” /d., p. 30. Plaintiff sought review of the summary adjudication order through a motion
22
for reconsideration to this Court and a Writ of Mandate to the Court of Appeals but both were
23
denied.
24
Cc. After Plaintiff Failed to Revive His Wrongful Termination Claim, He Turned
25 to Forgery Allegation:

26 Having failed to revive his claim for wrongful termination, i.e., his “case-in-chief” (as

27 described by Judge Kleinberg) and primary claims for damages, Plaintiff accused Defendants of

28 forging the evidence that supported summary adjudication. In hopes of resolving Plaintiff's
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forgery allegations without Court intervention, Defendants sent Plaintiff electronic versions of

certain emails requested by Plaintiff to show that no forgery occurred. Lewis Decl. ] 8. On June

22, 2021, Defendants provided Plaintiff with a letter from Tess Blair, the Head of Morgan

Lewis’s eData Practice Group, to explain that changes in the metadata of the digital emails that

Defendants produced is not evidence of “forgery,” but rather, the natural result of how the emails

were collected and produced in this case. Jd. at § 9, Ex. E. Also, before Plaintiff filed any of his

Motions, on July 16, 2021, Defendants provided Plaintiff with a Declaration from Melinda

Riechert, the lead counsel on this case, which contained a step-by-step explanation of how

Defense counsel received certain emails from Defendant (which Plaintiff alleges were forged),

10 how the emails were saved, and how they were produced. /d. at § 10, Ex. F.

11 Plaintiff did not substantively respond to the questions in Blair’s letter or the points in

12 Riechert’s declaration. /d. ] 11. Instead, he filed a Motion to Disqualify Morgan, Lewis &

13 Bockius LLP as Defendants’ Counsel on July 27, 2021 and a Motion for Terminating and Other

14 Sanctions on July 28, 2021. /d. Plaintiff also sent Defense Counsel a draft federal court

15 complaint on August 4, 2021. /d. at 12. The draft complaint asserts the exact same, disproven

16 allegations about hacking, falsification, and fabrication that were already addressed in Blair’s

17 June 22, 2021 letter and Riechert’s July 16, 2021 declaration. Jd. The draft complaint is styled as

18 a class action and purports to assert claims on behalf of all opposing counsel and opposing parties

19 in any litigation wherein Morgan Lewis has served as counsel. The named defendants are

20 Morgan Lewis, and three Morgan Lewis lawyers individually, Riechert, Lewis and Blair. Id.

21 To respond to Plaintiffs allegations, Defendants hired a well-regarded digital forensic

22 expert, Dan Regard. Defendants filed an Opposition to Plaintiff's Motion for Terminating and

23 Other Sanctions and submitted a declaration from Regard. Jd. at 4] 12. On September 30, 2021,

24 Plaintiff moved for Sanctions Under to Section 128.7, alleging fraud regarding Defendants’

25 Opposition to Plaintiff's Motion for Terminating Sanctions. /d. at | 13. On October 4, 2021, this

26 Court appointed Judge Kleinberg as a Referee to decide Plaintiffs three Motions. /d.

27 In January 2022, Judge Kleinberg issued Proposed Orders denying each of Plaintiff's Motions.
28 Judge Kleinberg found that the Motions were improper and recommended that Plaintiff and his
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counsel be sanctioned. Plaintiff filed three very lengthy objections to all three Orders.

Ii. LEGAL STANDARD

Code of Civil Procedure section 128.7 “authorizes trial courts to impose sanctions to

check abuses in the filing of pleadings, petitions, written notices of motions or similar papers.”

Musaelian v. Adams, 45 Cal. 4th 512, 515 (2009). This code provision was modeled after Federal

Rule of Civil Procedure 11 and, compared to California’s prior sanction statutes, imposes a higher

standard on California attorneys as to the merits of pleadings filed with the court. California

courts view federal law construing Rule 11 as “persuasive authority with regard to the meaning of

section 128.7.” Cromwell v. Cummings, 65 Cal. App.4th 10, 14 (1998). The certification process

10 mandated by C.C.P. § 128.7 is designed to create an affirmative duty on the part of attorneys to

11 verify and investigate both the legal and factual basis for any pleading or paper filed with the

12 court. See Business Guides, Inc. v. Chromatic Commc’n Enter., Inc. (1991) 498 U.S. 533.

13 Section 128.7 was enacted primarily to deter dilatory or abusive tactics and to streamline

14 litigation by excluding baseless filings. See Cooter & Gell v. Hartmarx Corp. (1990) 496 U.S.

15 384; Golden Eagle Distrib. Corp. v. Burroughs Corp. (9th Cir. 1986) 801 F.2d 1531, 1542.

16 “{E]ven though an action may not be frivolous when it is filed, it may become so if later-acquired

17 evidence refutes the findings of a prefiling investigation and the attorney continues to file papers

18 supporting the client’s claims.” Peake v. Underwood, 227 Cal. App. 4th 428, 441 (2014). “[A]

19 plaintiff's attorney cannot just cling tenaciously to the investigation he had done at the outset of

20 the litigation and bury his head in the sand. Instead, to satisfy the obligation under Code of Civil

21 Procedure section 128.7 to conduct a reasonable inquiry to determine if his or her client’s claim

22 was well-grounded in fact, the attorney must take into account the adverse party’s evidence.” Jd.

23 In Guthrey v. State of California, 63 Cal. App. 4th 1108, 1126 (1998), the court awarded

24 the defendant attorneys’ fees at trial and on appeal because plaintiff persisted in maintaining his

25 claims after his deposition revealed that plaintiff had no evidence to support his allegations. The

26 court stated that “attorneys bear a responsibility to their clients to advise them when a case is

27 frivolous. After plaintiff gave his deposition, it should have been clear to his counsel that he had

28 no case of arguable merit. As seen here, plaintiff did not simply lose his case, he is also obligated
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to pay defendants’ attorneys’ fees because the case was frivolous from the start.” Jd.

Iv. PLAINTIFF’S AND HIS COUNSEL’S OBJECTIONS TO JUDGE KLEINBERG
ORDERS IS SANCTIONABLE UNDER CCP 128.7
Code of Civil Procedure Section 128.7 contains two separate sanctions provisions:

By presenting to the court, whether by signing, filing, submitting, or later
advocating, a pleading, petition, written notice of motion, or other similar paper,
an attorney or unrepresented party is certifying that to the best of the person's
knowledge, information, and belief, formed after an inquiry reasonable under the
circumstances, all of the following conditions are met:

(1) It is not being presented primarily for an improper purpose, such as to harass or
to cause unnecessary delay or needlessly increase in the cost of litigation.

(2) The claims, defenses, and other legal contentions therein are warranted by
existing law or by a nonfrivolous argument for the extension, modification, or
10 reversal of existing law or the establishment of new law.
11 (3) The allegations and other factual contentions have evidentiary support or, if
specifically so identified, are likely to have evidentiary support after a reasonable
12 opportunity for further investigation or discovery.
13 (4) The denials of factual contentions are warranted on the evidence or, if
specifically so identified, are reasonably based on a lack of information or belief
14
Section 128.7(b). A Motion for Sanctions under Section 128.7(b) requires 21 days’ notice to the
15
opposing party before it can be filed, so that the opposing party has the opportunity to withdraw
1
the motion. 128.7(c)(1). Defendants have provided such notice. Lewis Decl. § 14.
17
A Motion for Sanctions can also be brought under Section 128.7(h):
18
A motion for sanctions brought by a party or a party's attorney primarily for an
19 improper purpose, such as to harass or to cause unnecessary delay or needless
increase in the cost of litigation, shall itself be subject to a motion for sanctions. It
20 is the intent of the Legislature that courts shall vigorously use its sanctions
authority to deter that improper conduct or comparable conduct by others similarly
21 situated
22 Id. Section 128.7(h) does not specify that it requires 21 days’ notice and an opportunity to

23 withdraw the motion before the motion is filed. §128.7(h). Defendants intend to file a Motion for

24 Sanctions under 128.7(h) after this Court rules on Plaintiff's Objections.

25 Sanctions are warranted because Plaintiff's Objections to Judge Kleinberg’s Orders were

26 presented for an improper purpose to needlessly increase in the cost of litigation. The legal

27 contentions in Plaintiff's Objections are not warranted by existing law and the factual contentions

28
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have no evidentiary support. The denials of factual contentions are not warranted on the

evidence. Accordingly, sanctions should be imposed on Plaintiff and his counsel.

Vv. THE OBJECTIONS TO JUDGE KLEINBERG’S ORDERS MEET THE
CRITERIA UNDER CCP 128.7(B)

Instead of accepting Judge Kleinberg’s Orders and trying to justify to Judge Kleinberg

why they should not be sanctioned under 128.7(h), Plaintiff and his counsel have instead filed

objections to all of Judge Kleinberg’s Orders. Plaintiff also filed an Objection to Judge

Kleinberg’s rulings on Plaintiff's Objections to Evidence. As a result, and as detailed in the

Declaration of Joseph Lewis filed herewith, Defendants have had to spend considerable time

filing detailed responses to each of Plaintiff's Objections in which they outline the lack of any
10
basis for Plaintiff and his counsel to object to Judge Kleinberg’s Orders. While each of the
11
Objections filed by Plaintiff and his counsel is different, and each is voluminous, requiring a
12
detailed response to each, there are common arguments in each of Plaintiff's Objections that meet
13
the criteria of 128.7(b)
14
A Judge Kleinberg Signed a Declaration Stating That He Reviewed the Filing,
15 of Both Sides. Plaintiff’s Objections Arguing that He Did Not is Itself
Sanctionable.
16
In Plaintiff's Objections and Defendants’ response to the Objections, Plaintiff argues that
17
Judge Kleinberg did not review his experts’ reports in reaching his decisions. Plaintiffs
18
Objection to the Order regarding Plaintiff's Motion for Sanctions Pursuant to Section 128.7 leads
19
with a section titled, “Referee Failed to Analyze or Even Comment on Eight (8) Necessary Expert
20
Reports.” Another begins, “Referee Overlooked Proper Computer Science and All Non-Computer
21
Science Evidence.”! The Objections repeat: “The Referee analyzed the wrong computer science
22
expert report,” “The only computer science report the Referee analyzed was a preliminary 2020
23

24
1
Plaintiffis critical of the following finding by Judge Kleinberg:
25
Plaintiff falsely claimed experts found Samsung fabricated evidence in many
26 respects; "Plaintiff has claimed he has retained a group of expert witnesses who have
‘confirmed Samsung fabricated evidence in many respects.' This allegation is false.
27 The cited reports say nothing of the kind because the email in question were not
in ‘original’ or 'native' format."
28 (Plaintiff's Objection to Motion for Terminating and Other Sanctions, p. 1)
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report that preceded the production of “native, digital” emails,” “The Referee’s Report overlooks

these admissible categories of evidence,” and “The Referee does not have the authority to ignore

several qualified expert witnesses swa sponte and certainly does not have the authority to

disregard them sub silentio.” There is no basis for such allegations against the Referee.

Judge Kleinberg signed a Declaration stating that he reviewed all filings. Lewis Decl. {

15, Ex. G, p. 1. Nowhere does Judge Kleinberg state that he failed to analyze or overlooked any

expert reports; to the contrary, he declared under oath that he reviewed the filings of both sides: “T

have spent 12.5 hours working on this matter during the months of November and December

2021, reviewing the filings of both sides, and preparing four orders, resulting employing a billing

10 rate of $650 per hour, for a total charge of $8,125.00.” Id.’ The fact that Judge Kleinberg did

11 not mention by name each of the seventy exhibits Plaintiff submitted in support of the Motions in

12 concluding that the Motions lacked merit does not mean that he did not review them. By arguing

13 that Judge Kleinberg did not review all of the papers submitted with the Motions and ignoring

14 Judge Kleinberg’s statement under oath that he had so, Plaintiff's Objections were submitted for

15 an improper purpose to needlessly increase in the cost of litigation. The legal contentions in

16 Plaintiff's Objections are not warranted by existing law and the factual contentions have no

17 evidentiary support. The denials of factual contentions are not warranted on the evidence.

18 Accordingly, sanctions should be imposed on Plaintiff and his counsel.

19 B. Plaintiff's Argument that Judge Kleinberg Misread the Summary
Adjudication Order is Sanctionable.
20
In his Objections, Plaintiff objects to Judge Kleinberg’s conclusion that his termination
21
claims were dismissed when the Court granted Summary Adjudication of Plaintiff's wrongful
22
termination claim. Judge Kleinberg stated:
23
Rather than accept those decisions Plaintiff has initiated a round of accusations
24
directed to both Defendants and their counsel. As shown in multiple briefs and
25 summarized in the Referee’s Proposed Orders on the issues of Code of Civil
procedure § 128.7 and Terminating Sanctions, Plaintiff's attacks are failures. The
26 instant motion is a last gasp attack, this time directed at defense counsel, who are
accused of forgery, doctoring evidence, and sabotaging Plaintiff's counsel’s
27 computer. Enough is enough. It is time for Plaintiff and his counsel to face reality.”
28 ? The final invoice reflected that Judge Kleinberg worked more than 22 hours preparing Orders.
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Lewis Decl. {| 5, Ex. C, pp. 2:24-3:3.

As confirmed by the summary judgment order that Judge Kleinberg had available for his

review, the Court did dismiss Plaintiff's wrongful termination claim and found that Defendant

SRA had legitimate, non-discriminatory, non-retaliatory reasons for terminating Plaintiff's

employment based on his sexual harassment of a female co-worker. “Defendants argue the third

cause of action for wrongful termination in violation of public policy fails for the same reasons as

the second cause of action. . . Defendants’ motion for summary adjudication of the third cause of

action is GRANTED.” Lewis Decl. 4 7, Ex. D, pp. 30. Thus, Judge Kleinberg did not incorrectly

state that the wrongful termination claim was dismissed. By arguing that Judge Kleinberg misread

10 the summary judgment order, Plaintiff's Objections were submitted for an improper purpose to

11 needlessly increase the cost of litigation.

12 Plaintiff argues that 12 of his 15 claims remain after summary judgment. But this is

13 irrelevant. The fact that other causes of action remained after the summary adjudication order was

14 not disputed by Judge Kleinberg and is not disputed by Defendants. However, the dismissal of the

15 wrongful termination claim, and the damages that would have been recoverable on that claim,

16 was, as noted by Judge Kleinberg, a significant loss to Plaintiff’ Plaintiff's efforts to overturn

17 that decision evidence that Plaintiff and his counsel realize the seriousness of the loss.

18 By objecting to Judge Kleinberg’s orders, Plaintiff and his counsel have engaged in conduct that

19 meets the requirements of 128.7(b).

20 C. Plaintiff's Objections to Judge Kleinberg’s Findings That There Was No
Forgery Is Sanctionable
21
Plaintiff and his counsel argued in the sanctions motions that Defendants’ counsel had
22
forged emails that were produced in discovery and that his experts’ reports confirmed that the
23
emails were forged. The basis for the forgery allegation was that different copies of the same
24
emails that were produced in different formats on different dates contained different metadata.
25
Judge Kleinberg rejected Plaintiffs claim that the emails were forged. In his Order for
26
Terminating Sanctions under Section 2030.030 Judge Kleinberg stated:
27
3 The denial of the motion for clarification is irrelevant since the denial was not on the merits but
28 based on a decision that what evidence should be admitted at trial is best left to the trial judge.
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Experts from both sides were retained to determine whether emails provided in
separate sets were "manipulated" and not "true copies." Morgan Lewis retained Dan
Regard, an electronic discovery and computer science consultant conversant in such
issues for twenty years. A significant conclusion reached by Mr. Regard is since the
text of the documents was the same, there has been no forgery. The date any of the
documents in question was created was not altered. Further, Defendant did not alter
the original production sequence.
Lewis Decl. 4 3, Ex. A, p. 4:10-15. Judge Kleinberg also stated:

Plaintiffs expert reports do not bear out the accusation that Morgan Lewis modified
content in emails. In contrast to the pending motion's allegations plaintiffs expert
reports do not make such a statement. Thus, no basis for sanctions pursuant to
Section 128.7 exists on this issue.
Lewis Decl. § 4, Ex. B, p. 6:14-18. Plaintiff also continues to allege in his Objections that

Defendants forged security badge logs. In rejecting Plaintiff's argument, Judge Kleinberg held:
10
Security badge records were produced in a spreadsheet. misnumbered through an
11 automated Excel function. The incorrect computer-generated (via Excel) door
numbers produced were corrected. As such, this incident doesn't equate to “forgery”
12 or a violation of Section 128.7. The issue of the badges’ accuracy pre-dated the
motion for terminating sanctions and this issue is not relevant to the pending motion.
13

14 Lewis Decl. 4 4, Ex. B, p. 6:9-13. As Plaintiff now concedes in his Objection, this misnumbering

15 was inadvertent and due to an Excel autonumbering feature. (Objection to Proposed Order re:

16 Plaintiffs Motion for Sanctions under Section 128.7, p. 12:18-22). As Judge Kleinberg correctly

17 found, an inadvertent misnumbering due to an Excel autonumbering feature is not sanctionable

18 conduct. Plaintiff and his counsel object that Judge Kleinberg did not comment on all the issues

19 Plaintiff had raised with respect to the security logs. The fact that Judge Kleinberg’s Order did

20 not address every allegation and argument made by Plaintiff in his three voluminous motions

21 does not mean that Judge Kleinberg did not consider them. Plaintiff argues that Judge Kleinberg

22 “did not review” the expert report from Plaintiff's private investigator, John Troxel. However,

23 page 5 of Plaintiff's Motion for Sanctions Pursuant to Section 128.7 features a large screenshot of

24 Troxel’s report listing the multiple parts of alleged forgery. Therefore, Judge Kleinberg could not

25 have failed to review the instances of alleged forgery that Troxel identified because those

26 instances were literally copied into Plaintiffs Motion.

27 Plaintiff and his counsel have objected to Judge Kleinberg’s Orders, arguing that Judge

28 Kleinberg did not properly consider the forgery allegations. There is no factual or legal basis for
Moran, LEWIS &
Bockiws LLP 9 Case No. 17CV318162
Arrorviysar Law
SiUICoW VALLEY DEFENDANTS’ NOTICE OF MOTION AND MOTION FOR SANCTIONS PURSUANT TO CCP § 128.7 RE
OBJECTION TO REFEREE’S ORDERS
these Objections. They were submitted for an improper purpose to needlessly increase the cost of

litigation. Sanctions should be awarded against Plaintiff and his counsel under 128.7(b).

D. Plaintiff's Objections to Judge Kleinberg’s Disqualification Order Is
Sanctionable

Judge Kleinberg ruled that Plaintiff's Motion to Disqualify Defendants’ counsel was a

sham. He found that after the court granted summary adjudication of Plaintiff's wrongful

termination claim, Plaintiff asserted that Defendants’ forged emails. As Judge Kleinberg found:

After a review by Defendants’ expert, Dan Regard, resulting in a two hundred page
report, it was beyond dispute that while the formatting had changed from one
computer to another (PST,PDF,EML,MSG formats), the substance of the emails
remained intact. The fact that the firm of Morgan Lewis appeared in the metadata
10 of these emails is simply because the documents passed through that firm's email
system on their way to Plaintiff's counsel. Anyone who has received documents on
11 a computer knows the format can be changed in transmission.
12 Lewis Decl. § 5, Ex. C, p. 4:1-9.

13 Plaintiff has never presented any evidence that there were any changes to the substance of

14 the emails, only to the metadata. Plaintiff's Objection to Judge Kleinberg’s order, without a

15 factual or legal basis to do so, was submitted for an improper purpose to needlessly increase the

16 cost of litigation. Sanctions should be awarded against Plain

Case Info

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Socrates P. Manoukian Track Judge’s New Case

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Document Filed Date

February 18, 2022

Case Filing Date

March 25, 2009

County

Parties

Bradley D. Doucette Attorney
Brian P. Preston Attorney
California Home Builders & Design, Inc. Defendant/cross Def/cross Compl
California Homes and Kitchen Design Center, Inc. Defendant/cross Complainant
Jeffrey Hartsfield Belote Attorney
Ryan Patrick Harley Attorney
WEC & Associates, Inc. Defendant/cross Def/cross Compl
WEC Associates, Inc. Defendant/cross Defendant
Xinrong Jiang Plaintiff/cross Defendant
Youquin Cao Plaintiff/cross Defendant
Robert Kopelson Attorney
Margot Parker Attorneys for Defendants
Jonathan Kent
Aaron Baldaro Attorney
Megumi Horiuchi Attorneys for Defendants
Kenneth Freed Attorneys for Plaintiffs
Mark Shem Attorney
Stephen Ilg Attorneys for Plaintiffs
George Lin Attorneys for Plaintiffs
Raymond Park Attorneys for Defendants
Kevin Kennedy Attorneys for Plaintiffs
Eliseu Meneses Attorneys for Plaintiffs
Kaitlyn Sikora Attorneys for Plaintiffs
Melissa Palozola Attorneys for Plaintiffs
Evan Reese Attorneys for Defendants
Kevin Gillispie Attorneys for Defendants
Robert Bustamante Attorneys for Defendants
Brad Bunnin Attorney
Megan Lieber Attorneys for Defendants
Michelle Raaka
Clark Hill Attorney
Samantha Zelezen Attorneys for Defendants
Jack Lynch Attorneys for Plaintiffs
Truman Phan-Quang Attorneys for Defendants
Jessica Echeverry Attorneys for Defendants
Frank Zeccola Attorney
Barbara Miller Attorney
Brandon Brown Attorneys for Plaintiffs
Raymond Meyer Attorneys for Defendants
Gregory Prongos Attorneys for Defendants
Samuel Phillips Attorneys for Defendants
Gregory Arakawa Attorneys for Defendants
John Toohey Attorneys for Defendants
Dania Baker Attorney
Kevin Bedolla Attorney
Stephen Lau Attorney
Charles Wagner Attorney
John Fay Attorney
Brooks Cutter Attorneys for Plaintiffs
Jennifer Domer Attorneys for Plaintiffs
Eric Jun Attorneys for Plaintiffs
Payam Malakouti Attorney
John Domingue Attorney
Gregory Gerson Attorneys for Defendants
Melinda Riechert Attorneys for Defendants
Patricia Kennedy Attorney

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Motion-Secondary: Youquin Cao et al vs California Homes and Kitchen Design Center, Inc. et al

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