Preview
1 Stephanie Hamilton Borchers #192172 E-FILED
G. Andrew Slater #238126 2/21/2018 9:58 AM
2 DOWLING AARON INCORPORATED FRESNO COUNTY SUPERIOR COURT
8080 North Palm Avenue, Third Floor By: K. Daves, Deputy
3 P.O. Box 28902
Fresno, California 93729-8902
4 Tel: (559) 432-4500
Fax: (559) 432-4590
5 shb@dowlingaaron.com
aslater@dowlingaaron.com
6
Attorneys for Defendants
7 BROOKE ASHJIAN, individually; FRESNO WATCHDOGS FOR ETHICAL BIDDING, a
California corporation
8
9 SUPERIOR COURT OF CALIFORNIA, COUNTY OF FRESNO
10 CIVIL UNLIMITED
11
12 Fresno Watchdogs for Ethical Bidding, an Case No. 17CECG02900
unincorporated association,
13 MEMORANDUM OF POINTS AND
Plaintiff, AUTHORITIES IN SUPPORT OF
14 DEFENDANT BROOKE ASHJIAN’S
v. MOTION TO COMPEL IDENTIFICATION
15 OF PERSONS MOST QUALIFIED AND
Brooke Ashjian, individually; as a Principal TO COMPEL THEIR ATTENDANCE AT
16 Officer or Managing Member of Fresno DEPOSITION
Watchdogs for Ethical Bidding, a California
17 corporation; and as President of the Board of Date: April 4, 2018
Education of the Fresno Unified School Time: 3:30 p.m.
18 District; Fresno Watchdogs for Ethical Dept: 503
Bidding, a California Corporation; Terry Judge: Hon. Kimberly Gaab
19 Martin, and DOE 1 through DOE 25,
inclusive.
20
Defendants.
21
22
23
24
25
26
27
28
MPA ISO DEFENDANT BROOKE ASHJIAN’S MOTION TO COMPEL IDENTIFICATION OF
PERSONS MOST QUALIFIED AND TO COMPEL THEIR ATTENDANCE AT DEPOSITION
1 Defendant BROOKE ASHJIAN, in his individual capacity, submits the
2 following memorandum in support of his motion to compel.
3 I. OVERVIEW OF CASE
4 This lawsuit was brought by Plaintiff FRESNO WATCHDOGS FOR ETHICAL
5 BIDDING, an Unincorporated Association (hereinafter, “FWEB”) seeking an injunction
6 preventing Mr. Ashjian, and the other defendants, from using the name “Fresno Watchdogs for
7 Ethical Bidding” and from ordering any spokesperson for FWEB to refrain from using the
8 name “Fresno Watchdogs for Ethical Bidding.” Mr. Ashjian was an officer of a California
9 corporation, also a defendant in this action, which also went by the name Fresno Watchdogs for
10 Ethical Bidding, the similarity in the names is the impetus of this lawsuit. The defendant
11 corporation of the same name has since been dissolved. Nonetheless, this lawsuit persists.
12 Mr. Ashjian served a deposition notice on FWEB for its person(s) most qualified
13 to testify on certain topics, many of which are derived directly from FWEB’s own allegations
14 in its complaint which would require testimony from members of the association at trial. The
15 deposition(s) were to be taken on Wednesday, January 31, 2018. FWEB objected to most of
16 the deposition subjects and refused to identify any witnesses for deposition (other than their
17 attorney, Mr. Mackie) on the basis that the identities of its members are protected by the right
18 to privacy and the right to freedom of association.
19 FWEB is an amorphous group that purports to be “…for the purpose of
20 exposing alleged violations of the Political Reform Act of 1974 and conflict of interest statutes
21 as they relate to bidding on works of public improvement solicited by Fresno Unified School
22 District.” (Complaint at Paragraph 1.) Despite its grandiose mission and cries for Constitutional
23 protection, it is quite clear that FWEB consists of construction contractors and developers who
24 had their favorable deals with Fresno Unified terminated when Mr. Ashjian, and others,
25 exposed the inequity of their lease-leaseback practice. Any allusion to a more worldly noble
26 cause for FWEB is undermined by the reality that the only actions taken by the group have
27 been contrary to the interest of Mr. Ashjian, including this lawsuit and multiple complaints to
28 the Fair Political Practices Commission (none of which have resulted in any reprimand of
1
MPA ISO DEFENDANT BROOKE ASHJIAN’S MOTION TO COMPEL IDENTIFICATION OF
PERSONS MOST QUALIFIED AND TO COMPEL THEIR ATTENDANCE AT DEPOSITION
1 Mr. Ashjian).
2 Thus, this discovery dispute concerns whether FWEB is required to identify, and
3 produce for deposition, persons most qualified to testify in response to the subjects listed in
4 Mr. Ashjian’s deposition notice.
5 II. MEET AND CONFER EFFORTS
6 In advance of the service of the deposition notice, and in anticipation of a
7 privacy protection objection by FWEB, counsel for Mr. Ashjian, Andrew Slater, began the
8 meet and confer process. Mr. Slater sent an email correspondence to counsel for FWEB,
9 Mr. Kenneth Mackie, on December 12, 2017, to check availability of FWEB’s person(s) most
10 qualified (PMQ) as to certain deposition subjects. On December 19, 2017, Mr. Mackie
11 responded acknowledging that he would be the PMQ as to certain subjects and asserting the
12 rights to privacy and association in objecting to most of the other deposition subjects.
13 Mr. Slater responded to Mr. Mackie’s informal objections on December 20, 2017, countering
14 his position. The parties exchanged further correspondences on December 23rd and 27th
15 regarding the dispute but were unable to come to any resolution.
16 On or about January 4, 2018, Mr. Ashjian served the PMQ deposition notice.
17 The notice contained the previously discussed subjects as well as several additional deposition
18 subjects not previously addressed in the preemptive meet and confer process. Following
19 service of the deposition notice, on January 9, 2018, Mr. Mackie sent a meet and confer letter
20 to Mr. Slater generally objecting to the notice, reasserting the same privacy objections and
21 providing more detail regarding his authority for his position. Mr. Mackie did not identify any
22 persons most qualified. On January 17, 2018, Mr. Slater responded with authority for
23 Mr. Ashjian’s position that persons needed to be identified and produced for deposition. The
24 parties’ positions as stated in the meet and confer letters are set forth herein below.
25 On January 23, 2018, unable to resolve the dispute over the privacy issue,
26 Mr. Ashjian filed a Request for Pretrial Discovery Conference with the court. On February 1,
27 2018, the Court denied Mr. Ashjian’s request and ordered him to file a Motion to Compel prior
28 to February 26, 2018. This motion is brought pursuant to the Court’s direction.
2
MPA ISO DEFENDANT BROOKE ASHJIAN’S MOTION TO COMPEL IDENTIFICATION OF
PERSONS MOST QUALIFIED AND TO COMPEL THEIR ATTENDANCE AT DEPOSITION
1 Mr. Ashjian previously agreed to stipulate to a protective order to alleviate
2 FWEB’s concerns over privacy, but the notion was dismissed by FWEB.
3 III. LEGAL BASIS FOR MOTION
4 If, after service of a deposition notice, a party to the action or an officer,
5 director, managing agent, or employee of a party, or a person designated by an organization
6 that is a party under Code Civ. Proc. Section 2025.230, fails to appear after examination, to
7 proceed with it,or to produce for inspection any document, electronically stored information,
8 or tangible thing described in the deposition notice, without having served a valid objection
9 under Code Civ. Proc. Section 2025.410, the party giving notice may move for an order
10 compelling the deponent’s attendance and testimony, and the production for inspection of any
11 document, electronically stored information, or tangible thing described in the deposition
12 notice. (Code Civ. Proc. Section 2025.450(a).) Moreover, Code of Civil Procedure § 2025.480
13 provides that when the deponent fails to answer any questions, the party seeking discovery may
14 move the court for an order to compel.
15 If and to the extent the statute is subject to an interpretation that the noticing
16 party must sit idly in a conference room with a court reporter awaiting appearance on the part
17 of the witness(es) who has already announced it is not showing up, then the court should
18 excuse the performance of such an idle act as a waste of money and time and go straight to the
19 heart of the motion to compel. In this case, counsel for FWEB has stated in an email and
20 through the meet and confer process that FWEB will not identify or produce witnesses for the
21 deposition subjects. While FWEB has agreed to produce witnesses for some of the subjects
22 (the only witness being its attorney, Mr. Mackie), it has refused to provide witnesses for the
23 vast majority of the subjects. Rather than hold a piecemeal deposition, it serves judicial
24 economy, and the time and effort of the attorneys and parties involved, to have the Court
25 determine whether FWEB will be compelled to produce witnesses, streamlining the process.
26 Additionally, as stated above, the Court has directed Mr. Ashjian to file a motion to compel.
27 As a general rule, a party may obtain discovery regarding unprivileged matters
28 that are relevant to the subject matter involved in the pending action or to the determination of
3
MPA ISO DEFENDANT BROOKE ASHJIAN’S MOTION TO COMPEL IDENTIFICATION OF
PERSONS MOST QUALIFIED AND TO COMPEL THEIR ATTENDANCE AT DEPOSITION
1 any motion made in that action, if the matter either is itself admissible in evidence or appears
2 reasonably calculated to lead to the discovery of admissible evidence. (Cal. Civ. Proc. Code
3 Section 2017(a).)
4 IV. ARGUMENT
5 A. FWEB’s Objections to the Deposition Notice.
6 FWEB objected to deposition subjects: 1, 4-6, 12-14, 16, 18, 20, 22, 24, 26, 28,
7 30, 32-34, and 36-85 (the “Disputed Subjects”). For ease of reference, these subjects are
8 presented in a Separate Statement format filed concurrently herewith. The legal arguments are
9 addressed in this document.
10 In response to the deposition notice, via meet and confer letter, FWEB assert a
11 broad, general objection to the Disputed Subjects:
12 “The Notice of Deposition is overbroad and unduly burdensome
in that is seeks persons most qualified to testify regarding
13
subjects that are neither relevant, nor likely to result in the
14 discovery of admissible evidence; and to testify regarding
subjects that are protected by the attorney-client privilege; the
15 right to privacy; and the right to freedom of association regarding
the person most qualified in the following subjects: [List of the
16 Disputed Subjects].”
17 In support of its objections, FWEB asserts a right of privacy and derivative right
18 of confidentiality generally applicable to membership in, and contribution to, public interest
19 organizations. Specifically, FWEB cites Save Open Space Santa Monica Mountains v.
20 Superior Court (2000) 84 Cal.App.4th 235 for the proposition:
21 “It is beyond debate that freedom to engage in association for the
22 advancement of beliefs and ideas is an inseparable aspect of the
‘liberty’ assured by the Due Process Clause of the Fourteenth
23 Amendment, which embraces freedom of speech.” 1
24
1
FWEB’s lead case has been overruled, in part, by subsequent case law regarding this very concept. Williams
25 v. Superior Court (2017) 3 Cal. 5th 531, condemned the Save Open Space Court’s de facto starting
assumption that such an egregious invasion is involved in every request for discovery of private information,
26 stating: “Courts must instead place the burden on the party asserting a privacy interest to establish its extent
and the seriousness of the prospective invasion, and against that showing must weigh the countervailing
27 intereststhe opposing party identifies,as Hill requires. What suffices to justify an invasion will … vary
according to the context. Only obvious invasions of interestsfundamental to personal autonomy must be
28 supported by a compelling interest.To the extent prior cases require a party seeking discovery of private
information to always establish a compelling interestor compelling need, without regard to the other
4
MPA ISO DEFENDANT BROOKE ASHJIAN’S MOTION TO COMPEL IDENTIFICATION OF
PERSONS MOST QUALIFIED AND TO COMPEL THEIR ATTENDANCE AT DEPOSITION
1 And Roberts v. U.S. Jaycees (1984) 468 U.S. 609, stating, “According to
2 protection to collective effort on behalf of shared goals is especially important in preserving
3 political and cultural diversity and in shielding dissident expression from suppression by the
4 majority.”
5 FWEB further asserts that Mr. Ashjian was previously sued for defamation (in a
6 case that settled short of trial) and was unwavering in the face of a boycott of his business in
7 light of his religious beliefs as support for their position that Mr. Ashjian has a “track record”
8 of retaliation for which protection of the association members is necessary.
9 B. FWEB’s Objections to the Deposition Notice Should Be Overruled.
10
As a threshold matter, California’s Discovery Act does not authorize “general
11
objections.” Objections must be stated separately in response to each request, interrogatory or
12
demand. (Code Civ. Proc. Sections 2030 .210(a)(3), 2031.210(a)(3), and 2033.230(b).) FWEB
13
did not provide separately stated objections to each deposition subject, thus, objections should
14
be overruled and the deponents identified and produced for deposition. 2
15
Threshold issue aside, FWEB’s objections fail as: (1) this lawsuit is an
16
affirmative claim for the sole benefit of FWEB, not for the advancement of any public interest,
17
belief or idea, waiving or significantly reducing any right to privacy it may have had; and (2) if
18
any such right to privacy exists, the burden is on FWEB to show its right to privacy outweighs
19
its own obligation to prove the allegations of its complaint and/or Mr. Ashjian’s right to depose
20
witnesses who plan on testifying against him, a burden it cannot meet.
21
22
23
considerations articulated in Hill … they are disapproved.”
2
24 FWEB’s objection that the deposition notice is overbroad is without merit. All of the Disputed Subjects are
based from, or directly on, the allegations of the complaint: management structure and authority,
25 investigations related to the allegations of the complaint, decision making process of the association,
plaintiff’salleged damages, and the association’s relationships with persons adverse to Mr. Ashjian.
26 Likewise, the deposition notice is not burdensome and oppressive. The showing required to sustain a
burdensome objection is that the intent of the party was to create an unreasonable burden, or that burden
27 created does not weigh equally with what requesting party is trying to obtain from it. The deposition notice
asks only that FWEB produce witnesses for deposition. For the same reasons the Disputed Subjects are not
28 overbroad, the Dispute Subjects are all relevant as they are based from, or directly on, the allegations of the
complaint.
5
MPA ISO DEFENDANT BROOKE ASHJIAN’S MOTION TO COMPEL IDENTIFICATION OF
PERSONS MOST QUALIFIED AND TO COMPEL THEIR ATTENDANCE AT DEPOSITION
1 C. FWEB Has No Right to Privacy/Anonymity.
2 This is an affirmative action by FWEB seeking to protect its own interests and
3 trade name. The protection and anonymity afforded by the Constitution is based on the
4 advancement of a public interest, beliefs and ideas and the need to protect that advancement
5 (even if dissident to the majority) from suppression. Again, FWEB’s lawsuit does not seek to
6 advance any public interest, beliefs or ideas. It seeks simply to protect its own trade name from
7 alleged misconduct by Mr. Ashjian and the other defendants. Protection which is moot at this
8 point as the defendant corporation of the same name has been dissolved. This is not a
9 situation where Mr. Ashjian is trying to “out” the members of the association to chill its ability
10 to advance its cause, but rather to defend himself from FWEB’s affirmative claims.
11 In the case of Britt v. Superior Court (1978) 20 Cal. 3d 844, the court recognizes
12 this significant difference:
13 “When such associational activities are directly relevant to the
plaintiff's claim, and disclosure of the plaintiff's affiliations is
14
essential to the fair resolution of the lawsuit, a trial court may
15 properly compel such disclosure. [Citation omitted.]” (Emphasis
added.) (Britt, supra, at 859.)
16
17 The court in Britt goes on to analogize the waiver of the Constitutional privacy
18 protection to that of other areas of law where inherent privileges and protections are waived by
19 asserting an affirmative claim putting the information at issue by the protected party:
20 “In a number of contexts in which evidentiary privileges
generally provide a cloak of confidentiality, exceptions to such
21 privileges have been recognized as to information that relates to
22 an issue which has been posited by the party claiming the
privilege's protection. Thus, for example, under current
23 California statutes both the physician-patient privilege and the
psychotherapist-patient privilege are subject to a ‘patient-litigant’
24 exception [citation omitted] and, in the constitutional realm, the
privilege against self-incrimination has been held to be subject to
25 a similar ‘waiver’ exception as to matters which are directly
26 relevant to litigation commenced by the holder of the privilege.”
(Emphasis added.) (Britt, supra, at 858.)
27
28 Even FWEB’s own authority, Save Open Space Santa Monica Mountains v.
6
MPA ISO DEFENDANT BROOKE ASHJIAN’S MOTION TO COMPEL IDENTIFICATION OF
PERSONS MOST QUALIFIED AND TO COMPEL THEIR ATTENDANCE AT DEPOSITION
1 Superior Court (2000) 84 Cal. App. 4th 235, acknowledges the waiver of privacy protections in
2 this scenario:
3 “…[w]hen such associational activities are directly relevant to the
plaintiff's claim, and disclosure of the plaintiff's affiliations is
4
essential to the fair resolution of the lawsuit, [that] a trial court
5 may properly compel such disclosure.’” (Save Open Space,
supra, at 252-253.)
6
7 As shown in the concurrently filed Separate Statement, the vast majority of the
8 Dispute Subjects are subject directly related to allegations of the complaint. FWEB’s own
9 affirmative claims. Even if narrowly construed to limit the extent of the disclosure, it is without
10 question most of the Disputed Subjects for examination are proper. For example, the subjects
11 asking FWEB to produce the person most qualified as to directing its attorney, Kenneth
12 Mackie, to appear at Fresno Unified School District Board Meetings on its behalf. These are
13 allegations taken directly from the complaint which must be proven at trial. FWEB must prove
14 that they directed Mr. Mackie to appear on their behalf. The person who directed Mr. Mackie
15 must establish this fact. Thus, the witness who plans on testifying at trial must be identified
16 and produced for deposition.
17 Finally, that Mr. Ashjian settled a defamation case and refused to waiver on his
18 beliefs because others were boycotting his business is not evidence of a “track record” of
19 oppression or retaliation. It is, in fact, the antitheses of evidence.
20 D. The Burden is on FWEB to Show its Right to Privacy Outweighs Mr.
Ashjian’s Right to Defend Himself.
21
22 The burden is on the deponent to justify his/her/its refusal to testify. (Weil &
23 Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2017) Section
24 8:814.) Moreover, the Williams v. Superior Court (2017) 3 Cal. 5th 531 case cited in footnote
25 1, above, overrules any claim by FWEB that Mr. Ashjian must show a compelling interest in
26 order to justify disclosure. To the contrary, the court in Williams put the burden on the party
27 seeking protection to “establish itsextent and the seriousness of the prospective invasion and
28 against that showing must weigh the countervailing interests the opposing party identifies.”
7
MPA ISO DEFENDANT BROOKE ASHJIAN’S MOTION TO COMPEL IDENTIFICATION OF
PERSONS MOST QUALIFIED AND TO COMPEL THEIR ATTENDANCE AT DEPOSITION
1 FWEB has yet to articulate how it intends to prove the allegations of its
2 complaint, and the requisite elements of its causes of action, without producing members of its
3 association to testify at trial, but it would seem farfetched to believe it can do so. The
4 requirement that FWEB must prove its case coupled with Mr. Ashjian’s fundamental right to
5 depose the party accusing him of wrongdoing outweighs any argument for the absolute
6 protection of the identity of the members of FWEB. It would be nonsensical to find otherwise.
7 Moreover, FWEB seeks attorneys’ fees pursuant to Code Civ. Proc. Section
8 1021.5. In order to be entitled to such relief, FWEB must show its lawsuit resulted in the
9 enforcement of an important right affecting the public interest and with a significant benefit to
10 the general public or a large class of persons. (Code Civ. Proc. Section 1021.5.) Mr. Ashjian
11 has the right to discover whether the lawsuit had been sought primarily for the personal benefit
12 of any of FWEB or its members, or other persons. (Rialto Citizens for Responsible Growth v.
13 City of Rialto (2012) 208 Cal. App. 4th 899, at fn. 5; and See Save Open Space, supra, at 246–
14 250.) As stated herein, this lawsuit is for the sole benefit of FWEB not any public benefit.
15 FWEB obligation to prove its case and Mr. Ashjian’s right to defend the
16 allegations against him outweigh any argument for absolute protection from disclosure of
17 FWEB’s persons most qualified.
18 V. Document Production.
19 Mr. Ashjian’s deposition notice included a Request for Production of
20 Documents. The objections and arguments presented with regard to the requests are the same
21 or similar to those presented to the Disputed Subjects and are also presented in a Separate
22 Statement format filed concurrently herewith.
23 VI. Sanctions.
24 Under the law, the court shall impose a monetary sanction against the losing
25 party unless it finds the losing party “acted with substantial justification” or other
26 circumstances make imposition of the sanction unjust.” (Code Civ. Proc. Sections 2025.450(g)
27 and 2025.480(j).) Here FWEB has no justification other than delay and obstinacy for refusing
28 to produce its persons most qualified to be deposed.
8
MPA ISO DEFENDANT BROOKE ASHJIAN’S MOTION TO COMPEL IDENTIFICATION OF
PERSONS MOST QUALIFIED AND TO COMPEL THEIR ATTENDANCE AT DEPOSITION
1 VII. Conclusion.
2 Based on the arguments submitted herein, Mr. Ashjian respectfully requests the
ô
) court grant his motion to compel the identification and production of persons most qualified for
4 deposition and to produce the documents requested.
5
Dated: February lO,2018 DOWLING AAR INCORPORATED
6
7
By:
8
G. Slater
9 Attorney for Defendants
BROOKE ASHJIAN, individually; FRESNO
10 WATCHDOGS FOR ETHICAL BIDDING, A
California corporation
11
T2
009887-000003\02288750.DOCX.
13
t4
15
t6
t7
18
r9
20
2l
22
23
24
25
26
27
28
DOWLINGIAARON
BROOKE ASHJIAN'S MOTION TO COMPEL IDENTIFICATION OF
MPA ISO DEFENDANT DEPOSITION
PERSONS MOST QUALIFIED AND TO COMPEL THEIR ATTENDANCE AT
Preview
1 Stephanie Hamilton Borchers #192172 E-FILED G. Andrew Slater #238126 2/21/2018 9:58 AM 2 DOWLING AARON INCORPORATED FRESNO COUNTY SUPERIOR COURT 8080 North Palm Avenue, Third Floor By: K. Daves, Deputy 3 P.O. Box 28902 Fresno, California 93729-8902 4 Tel: (559) 432-4500 Fax: (559) 432-4590 5 shb@dowlingaaron.com aslater@dowlingaaron.com 6 Attorneys for Defendants 7 BROOKE ASHJIAN, individually; FRESNO WATCHDOGS FOR ETHICAL BIDDING, a California corporation 8 9 SUPERIOR COURT OF CALIFORNIA, COUNTY OF FRESNO 10 CIVIL UNLIMITED 11 12 Fresno Watchdogs for Ethical Bidding, an Case No. 17CECG02900 unincorporated association, 13 MEMORANDUM OF POINTS AND Plaintiff, AUTHORITIES IN SUPPORT OF 14 DEFENDANT BROOKE ASHJIAN’S v. MOTION TO COMPEL IDENTIFICATION 15 OF PERSONS MOST QUALIFIED AND Brooke Ashjian, individually; as a Principal TO COMPEL THEIR ATTENDANCE AT 16 Officer or Managing Member of Fresno DEPOSITION Watchdogs for Ethical Bidding, a California 17 corporation; and as President of the Board of Date: April 4, 2018 Education of the Fresno Unified School Time: 3:30 p.m. 18 District; Fresno Watchdogs for Ethical Dept: 503 Bidding, a California Corporation; Terry Judge: Hon. Kimberly Gaab 19 Martin, and DOE 1 through DOE 25, inclusive. 20 Defendants. 21 22 23 24 25 26 27 28 MPA ISO DEFENDANT BROOKE ASHJIAN’S MOTION TO COMPEL IDENTIFICATION OF PERSONS MOST QUALIFIED AND TO COMPEL THEIR ATTENDANCE AT DEPOSITION 1 Defendant BROOKE ASHJIAN, in his individual capacity, submits the 2 following memorandum in support of his motion to compel. 3 I. OVERVIEW OF CASE 4 This lawsuit was brought by Plaintiff FRESNO WATCHDOGS FOR ETHICAL 5 BIDDING, an Unincorporated Association (hereinafter, “FWEB”) seeking an injunction 6 preventing Mr. Ashjian, and the other defendants, from using the name “Fresno Watchdogs for 7 Ethical Bidding” and from ordering any spokesperson for FWEB to refrain from using the 8 name “Fresno Watchdogs for Ethical Bidding.” Mr. Ashjian was an officer of a California 9 corporation, also a defendant in this action, which also went by the name Fresno Watchdogs for 10 Ethical Bidding, the similarity in the names is the impetus of this lawsuit. The defendant 11 corporation of the same name has since been dissolved. Nonetheless, this lawsuit persists. 12 Mr. Ashjian served a deposition notice on FWEB for its person(s) most qualified 13 to testify on certain topics, many of which are derived directly from FWEB’s own allegations 14 in its complaint which would require testimony from members of the association at trial. The 15 deposition(s) were to be taken on Wednesday, January 31, 2018. FWEB objected to most of 16 the deposition subjects and refused to identify any witnesses for deposition (other than their 17 attorney, Mr. Mackie) on the basis that the identities of its members are protected by the right 18 to privacy and the right to freedom of association. 19 FWEB is an amorphous group that purports to be “…for the purpose of 20 exposing alleged violations of the Political Reform Act of 1974 and conflict of interest statutes 21 as they relate to bidding on works of public improvement solicited by Fresno Unified School 22 District.” (Complaint at Paragraph 1.) Despite its grandiose mission and cries for Constitutional 23 protection, it is quite clear that FWEB consists of construction contractors and developers who 24 had their favorable deals with Fresno Unified terminated when Mr. Ashjian, and others, 25 exposed the inequity of their lease-leaseback practice. Any allusion to a more worldly noble 26 cause for FWEB is undermined by the reality that the only actions taken by the group have 27 been contrary to the interest of Mr. Ashjian, including this lawsuit and multiple complaints to 28 the Fair Political Practices Commission (none of which have resulted in any reprimand of 1 MPA ISO DEFENDANT BROOKE ASHJIAN’S MOTION TO COMPEL IDENTIFICATION OF PERSONS MOST QUALIFIED AND TO COMPEL THEIR ATTENDANCE AT DEPOSITION 1 Mr. Ashjian). 2 Thus, this discovery dispute concerns whether FWEB is required to identify, and 3 produce for deposition, persons most qualified to testify in response to the subjects listed in 4 Mr. Ashjian’s deposition notice. 5 II. MEET AND CONFER EFFORTS 6 In advance of the service of the deposition notice, and in anticipation of a 7 privacy protection objection by FWEB, counsel for Mr. Ashjian, Andrew Slater, began the 8 meet and confer process. Mr. Slater sent an email correspondence to counsel for FWEB, 9 Mr. Kenneth Mackie, on December 12, 2017, to check availability of FWEB’s person(s) most 10 qualified (PMQ) as to certain deposition subjects. On December 19, 2017, Mr. Mackie 11 responded acknowledging that he would be the PMQ as to certain subjects and asserting the 12 rights to privacy and association in objecting to most of the other deposition subjects. 13 Mr. Slater responded to Mr. Mackie’s informal objections on December 20, 2017, countering 14 his position. The parties exchanged further correspondences on December 23rd and 27th 15 regarding the dispute but were unable to come to any resolution. 16 On or about January 4, 2018, Mr. Ashjian served the PMQ deposition notice. 17 The notice contained the previously discussed subjects as well as several additional deposition 18 subjects not previously addressed in the preemptive meet and confer process. Following 19 service of the deposition notice, on January 9, 2018, Mr. Mackie sent a meet and confer letter 20 to Mr. Slater generally objecting to the notice, reasserting the same privacy objections and 21 providing more detail regarding his authority for his position. Mr. Mackie did not identify any 22 persons most qualified. On January 17, 2018, Mr. Slater responded with authority for 23 Mr. Ashjian’s position that persons needed to be identified and produced for deposition. The 24 parties’ positions as stated in the meet and confer letters are set forth herein below. 25 On January 23, 2018, unable to resolve the dispute over the privacy issue, 26 Mr. Ashjian filed a Request for Pretrial Discovery Conference with the court. On February 1, 27 2018, the Court denied Mr. Ashjian’s request and ordered him to file a Motion to Compel prior 28 to February 26, 2018. This motion is brought pursuant to the Court’s direction. 2 MPA ISO DEFENDANT BROOKE ASHJIAN’S MOTION TO COMPEL IDENTIFICATION OF PERSONS MOST QUALIFIED AND TO COMPEL THEIR ATTENDANCE AT DEPOSITION 1 Mr. Ashjian previously agreed to stipulate to a protective order to alleviate 2 FWEB’s concerns over privacy, but the notion was dismissed by FWEB. 3 III. LEGAL BASIS FOR MOTION 4 If, after service of a deposition notice, a party to the action or an officer, 5 director, managing agent, or employee of a party, or a person designated by an organization 6 that is a party under Code Civ. Proc. Section 2025.230, fails to appear after examination, to 7 proceed with it,or to produce for inspection any document, electronically stored information, 8 or tangible thing described in the deposition notice, without having served a valid objection 9 under Code Civ. Proc. Section 2025.410, the party giving notice may move for an order 10 compelling the deponent’s attendance and testimony, and the production for inspection of any 11 document, electronically stored information, or tangible thing described in the deposition 12 notice. (Code Civ. Proc. Section 2025.450(a).) Moreover, Code of Civil Procedure § 2025.480 13 provides that when the deponent fails to answer any questions, the party seeking discovery may 14 move the court for an order to compel. 15 If and to the extent the statute is subject to an interpretation that the noticing 16 party must sit idly in a conference room with a court reporter awaiting appearance on the part 17 of the witness(es) who has already announced it is not showing up, then the court should 18 excuse the performance of such an idle act as a waste of money and time and go straight to the 19 heart of the motion to compel. In this case, counsel for FWEB has stated in an email and 20 through the meet and confer process that FWEB will not identify or produce witnesses for the 21 deposition subjects. While FWEB has agreed to produce witnesses for some of the subjects 22 (the only witness being its attorney, Mr. Mackie), it has refused to provide witnesses for the 23 vast majority of the subjects. Rather than hold a piecemeal deposition, it serves judicial 24 economy, and the time and effort of the attorneys and parties involved, to have the Court 25 determine whether FWEB will be compelled to produce witnesses, streamlining the process. 26 Additionally, as stated above, the Court has directed Mr. Ashjian to file a motion to compel. 27 As a general rule, a party may obtain discovery regarding unprivileged matters 28 that are relevant to the subject matter involved in the pending action or to the determination of 3 MPA ISO DEFENDANT BROOKE ASHJIAN’S MOTION TO COMPEL IDENTIFICATION OF PERSONS MOST QUALIFIED AND TO COMPEL THEIR ATTENDANCE AT DEPOSITION 1 any motion made in that action, if the matter either is itself admissible in evidence or appears 2 reasonably calculated to lead to the discovery of admissible evidence. (Cal. Civ. Proc. Code 3 Section 2017(a).) 4 IV. ARGUMENT 5 A. FWEB’s Objections to the Deposition Notice. 6 FWEB objected to deposition subjects: 1, 4-6, 12-14, 16, 18, 20, 22, 24, 26, 28, 7 30, 32-34, and 36-85 (the “Disputed Subjects”). For ease of reference, these subjects are 8 presented in a Separate Statement format filed concurrently herewith. The legal arguments are 9 addressed in this document. 10 In response to the deposition notice, via meet and confer letter, FWEB assert a 11 broad, general objection to the Disputed Subjects: 12 “The Notice of Deposition is overbroad and unduly burdensome in that is seeks persons most qualified to testify regarding 13 subjects that are neither relevant, nor likely to result in the 14 discovery of admissible evidence; and to testify regarding subjects that are protected by the attorney-client privilege; the 15 right to privacy; and the right to freedom of association regarding the person most qualified in the following subjects: [List of the 16 Disputed Subjects].” 17 In support of its objections, FWEB asserts a right of privacy and derivative right 18 of confidentiality generally applicable to membership in, and contribution to, public interest 19 organizations. Specifically, FWEB cites Save Open Space Santa Monica Mountains v. 20 Superior Court (2000) 84 Cal.App.4th 235 for the proposition: 21 “It is beyond debate that freedom to engage in association for the 22 advancement of beliefs and ideas is an inseparable aspect of the ‘liberty’ assured by the Due Process Clause of the Fourteenth 23 Amendment, which embraces freedom of speech.” 1 24 1 FWEB’s lead case has been overruled, in part, by subsequent case law regarding this very concept. Williams 25 v. Superior Court (2017) 3 Cal. 5th 531, condemned the Save Open Space Court’s de facto starting assumption that such an egregious invasion is involved in every request for discovery of private information, 26 stating: “Courts must instead place the burden on the party asserting a privacy interest to establish its extent and the seriousness of the prospective invasion, and against that showing must weigh the countervailing 27 intereststhe opposing party identifies,as Hill requires. What suffices to justify an invasion will … vary according to the context. Only obvious invasions of interestsfundamental to personal autonomy must be 28 supported by a compelling interest.To the extent prior cases require a party seeking discovery of private information to always establish a compelling interestor compelling need, without regard to the other 4 MPA ISO DEFENDANT BROOKE ASHJIAN’S MOTION TO COMPEL IDENTIFICATION OF PERSONS MOST QUALIFIED AND TO COMPEL THEIR ATTENDANCE AT DEPOSITION 1 And Roberts v. U.S. Jaycees (1984) 468 U.S. 609, stating, “According to 2 protection to collective effort on behalf of shared goals is especially important in preserving 3 political and cultural diversity and in shielding dissident expression from suppression by the 4 majority.” 5 FWEB further asserts that Mr. Ashjian was previously sued for defamation (in a 6 case that settled short of trial) and was unwavering in the face of a boycott of his business in 7 light of his religious beliefs as support for their position that Mr. Ashjian has a “track record” 8 of retaliation for which protection of the association members is necessary. 9 B. FWEB’s Objections to the Deposition Notice Should Be Overruled. 10 As a threshold matter, California’s Discovery Act does not authorize “general 11 objections.” Objections must be stated separately in response to each request, interrogatory or 12 demand. (Code Civ. Proc. Sections 2030 .210(a)(3), 2031.210(a)(3), and 2033.230(b).) FWEB 13 did not provide separately stated objections to each deposition subject, thus, objections should 14 be overruled and the deponents identified and produced for deposition. 2 15 Threshold issue aside, FWEB’s objections fail as: (1) this lawsuit is an 16 affirmative claim for the sole benefit of FWEB, not for the advancement of any public interest, 17 belief or idea, waiving or significantly reducing any right to privacy it may have had; and (2) if 18 any such right to privacy exists, the burden is on FWEB to show its right to privacy outweighs 19 its own obligation to prove the allegations of its complaint and/or Mr. Ashjian’s right to depose 20 witnesses who plan on testifying against him, a burden it cannot meet. 21 22 23 considerations articulated in Hill … they are disapproved.” 2 24 FWEB’s objection that the deposition notice is overbroad is without merit. All of the Disputed Subjects are based from, or directly on, the allegations of the complaint: management structure and authority, 25 investigations related to the allegations of the complaint, decision making process of the association, plaintiff’salleged damages, and the association’s relationships with persons adverse to Mr. Ashjian. 26 Likewise, the deposition notice is not burdensome and oppressive. The showing required to sustain a burdensome objection is that the intent of the party was to create an unreasonable burden, or that burden 27 created does not weigh equally with what requesting party is trying to obtain from it. The deposition notice asks only that FWEB produce witnesses for deposition. For the same reasons the Disputed Subjects are not 28 overbroad, the Dispute Subjects are all relevant as they are based from, or directly on, the allegations of the complaint. 5 MPA ISO DEFENDANT BROOKE ASHJIAN’S MOTION TO COMPEL IDENTIFICATION OF PERSONS MOST QUALIFIED AND TO COMPEL THEIR ATTENDANCE AT DEPOSITION 1 C. FWEB Has No Right to Privacy/Anonymity. 2 This is an affirmative action by FWEB seeking to protect its own interests and 3 trade name. The protection and anonymity afforded by the Constitution is based on the 4 advancement of a public interest, beliefs and ideas and the need to protect that advancement 5 (even if dissident to the majority) from suppression. Again, FWEB’s lawsuit does not seek to 6 advance any public interest, beliefs or ideas. It seeks simply to protect its own trade name from 7 alleged misconduct by Mr. Ashjian and the other defendants. Protection which is moot at this 8 point as the defendant corporation of the same name has been dissolved. This is not a 9 situation where Mr. Ashjian is trying to “out” the members of the association to chill its ability 10 to advance its cause, but rather to defend himself from FWEB’s affirmative claims. 11 In the case of Britt v. Superior Court (1978) 20 Cal. 3d 844, the court recognizes 12 this significant difference: 13 “When such associational activities are directly relevant to the plaintiff's claim, and disclosure of the plaintiff's affiliations is 14 essential to the fair resolution of the lawsuit, a trial court may 15 properly compel such disclosure. [Citation omitted.]” (Emphasis added.) (Britt, supra, at 859.) 16 17 The court in Britt goes on to analogize the waiver of the Constitutional privacy 18 protection to that of other areas of law where inherent privileges and protections are waived by 19 asserting an affirmative claim putting the information at issue by the protected party: 20 “In a number of contexts in which evidentiary privileges generally provide a cloak of confidentiality, exceptions to such 21 privileges have been recognized as to information that relates to 22 an issue which has been posited by the party claiming the privilege's protection. Thus, for example, under current 23 California statutes both the physician-patient privilege and the psychotherapist-patient privilege are subject to a ‘patient-litigant’ 24 exception [citation omitted] and, in the constitutional realm, the privilege against self-incrimination has been held to be subject to 25 a similar ‘waiver’ exception as to matters which are directly 26 relevant to litigation commenced by the holder of the privilege.” (Emphasis added.) (Britt, supra, at 858.) 27 28 Even FWEB’s own authority, Save Open Space Santa Monica Mountains v. 6 MPA ISO DEFENDANT BROOKE ASHJIAN’S MOTION TO COMPEL IDENTIFICATION OF PERSONS MOST QUALIFIED AND TO COMPEL THEIR ATTENDANCE AT DEPOSITION 1 Superior Court (2000) 84 Cal. App. 4th 235, acknowledges the waiver of privacy protections in 2 this scenario: 3 “…[w]hen such associational activities are directly relevant to the plaintiff's claim, and disclosure of the plaintiff's affiliations is 4 essential to the fair resolution of the lawsuit, [that] a trial court 5 may properly compel such disclosure.’” (Save Open Space, supra, at 252-253.) 6 7 As shown in the concurrently filed Separate Statement, the vast majority of the 8 Dispute Subjects are subject directly related to allegations of the complaint. FWEB’s own 9 affirmative claims. Even if narrowly construed to limit the extent of the disclosure, it is without 10 question most of the Disputed Subjects for examination are proper. For example, the subjects 11 asking FWEB to produce the person most qualified as to directing its attorney, Kenneth 12 Mackie, to appear at Fresno Unified School District Board Meetings on its behalf. These are 13 allegations taken directly from the complaint which must be proven at trial. FWEB must prove 14 that they directed Mr. Mackie to appear on their behalf. The person who directed Mr. Mackie 15 must establish this fact. Thus, the witness who plans on testifying at trial must be identified 16 and produced for deposition. 17 Finally, that Mr. Ashjian settled a defamation case and refused to waiver on his 18 beliefs because others were boycotting his business is not evidence of a “track record” of 19 oppression or retaliation. It is, in fact, the antitheses of evidence. 20 D. The Burden is on FWEB to Show its Right to Privacy Outweighs Mr. Ashjian’s Right to Defend Himself. 21 22 The burden is on the deponent to justify his/her/its refusal to testify. (Weil & 23 Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2017) Section 24 8:814.) Moreover, the Williams v. Superior Court (2017) 3 Cal. 5th 531 case cited in footnote 25 1, above, overrules any claim by FWEB that Mr. Ashjian must show a compelling interest in 26 order to justify disclosure. To the contrary, the court in Williams put the burden on the party 27 seeking protection to “establish itsextent and the seriousness of the prospective invasion and 28 against that showing must weigh the countervailing interests the opposing party identifies.” 7 MPA ISO DEFENDANT BROOKE ASHJIAN’S MOTION TO COMPEL IDENTIFICATION OF PERSONS MOST QUALIFIED AND TO COMPEL THEIR ATTENDANCE AT DEPOSITION 1 FWEB has yet to articulate how it intends to prove the allegations of its 2 complaint, and the requisite elements of its causes of action, without producing members of its 3 association to testify at trial, but it would seem farfetched to believe it can do so. The 4 requirement that FWEB must prove its case coupled with Mr. Ashjian’s fundamental right to 5 depose the party accusing him of wrongdoing outweighs any argument for the absolute 6 protection of the identity of the members of FWEB. It would be nonsensical to find otherwise. 7 Moreover, FWEB seeks attorneys’ fees pursuant to Code Civ. Proc. Section 8 1021.5. In order to be entitled to such relief, FWEB must show its lawsuit resulted in the 9 enforcement of an important right affecting the public interest and with a significant benefit to 10 the general public or a large class of persons. (Code Civ. Proc. Section 1021.5.) Mr. Ashjian 11 has the right to discover whether the lawsuit had been sought primarily for the personal benefit 12 of any of FWEB or its members, or other persons. (Rialto Citizens for Responsible Growth v. 13 City of Rialto (2012) 208 Cal. App. 4th 899, at fn. 5; and See Save Open Space, supra, at 246– 14 250.) As stated herein, this lawsuit is for the sole benefit of FWEB not any public benefit. 15 FWEB obligation to prove its case and Mr. Ashjian’s right to defend the 16 allegations against him outweigh any argument for absolute protection from disclosure of 17 FWEB’s persons most qualified. 18 V. Document Production. 19 Mr. Ashjian’s deposition notice included a Request for Production of 20 Documents. The objections and arguments presented with regard to the requests are the same 21 or similar to those presented to the Disputed Subjects and are also presented in a Separate 22 Statement format filed concurrently herewith. 23 VI. Sanctions. 24 Under the law, the court shall impose a monetary sanction against the losing 25 party unless it finds the losing party “acted with substantial justification” or other 26 circumstances make imposition of the sanction unjust.” (Code Civ. Proc. Sections 2025.450(g) 27 and 2025.480(j).) Here FWEB has no justification other than delay and obstinacy for refusing 28 to produce its persons most qualified to be deposed. 8 MPA ISO DEFENDANT BROOKE ASHJIAN’S MOTION TO COMPEL IDENTIFICATION OF PERSONS MOST QUALIFIED AND TO COMPEL THEIR ATTENDANCE AT DEPOSITION 1 VII. Conclusion. 2 Based on the arguments submitted herein, Mr. Ashjian respectfully requests the ô ) court grant his motion to compel the identification and production of persons most qualified for 4 deposition and to produce the documents requested. 5 Dated: February lO,2018 DOWLING AAR INCORPORATED 6 7 By: 8 G. Slater 9 Attorney for Defendants BROOKE ASHJIAN, individually; FRESNO 10 WATCHDOGS FOR ETHICAL BIDDING, A California corporation 11 T2 009887-000003\02288750.DOCX. 13 t4 15 t6 t7 18 r9 20 2l 22 23 24 25 26 27 28 DOWLINGIAARON BROOKE ASHJIAN'S MOTION TO COMPEL IDENTIFICATION OF MPA ISO DEFENDANT DEPOSITION PERSONS MOST QUALIFIED AND TO COMPEL THEIR ATTENDANCE AT