Preview
1 Ryan van Steenis (SBN 254542)
1601 S Shepherd Dr., #276
2 Houston, Texas 77019
314-749-2284
3
Email: rjvansteenis@gmail.com
4
Attorney for Defendants Dave Bragg, and
5 Silicon Valley Real Ventures, LLC
6
7 SUPERIOR COURT OF THE STATE OF CALIFORNIA
8
FOR THE COUNTY OF SAN MATEO
9
10
Robert Arntsen; Mary Lee; Arntsen Family ) Case No.: 22-CIV-01148
11 Partnership, LP; and Brian Christopher Dunn )
Custodianship, )
12 Plaintiff(s), ) OPPOSITION TO PLAINTIFFS’ JUNE 12,
13 ) 2023, MOTION TO COMPEL AND
vs. ) REQUEST FOR SANCTIONS
14 )
David M. Bragg; Kurtis Stuart Kludt; Silicon ) Judge: Hon. Robert D. Foiles
15 Valley Real Ventures LLC; SVRV 385 Moore, ) Date: August 18, 2023
LLC; SVRV 387 Moore, LLC; Gregory J. Davis; ) Time: 9:00 a.m.
16 Kevin Wolfe; Jason Justesen; Paramont ) Dept: 21
Woodside, LLC; and Paramont Capital, LLC, ) Courtroom: 2J
17
) Action Filed: March 15, 2022
18 ) Trial Date: Unassigned
Defendant(s). )
19 )
)
20
21 I. INTRODUCTION
22 Plaintiffs’ June 12, 2023, Motion to Compel and Request for Sanctions (“Motion”) is
23 another attempt (in a long line) to seek sanctions against Defendants Bragg and Silicon Valley Real
24 Ventures, LLC (collectively, “Defendants”) for matters that are routinely worked out between
25 reasonable counsel. This Motion is a result of Plaintiffs’ counsel’s failure to meaningfully confer
26 over the discovery at issue – a problem the Court noted in the June 2, 2023, hearing on Defendants’
27
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Defendants Bragg and SVRV’s Opposition to Plaintiffs’ Motion to Compel and Request for
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1 Motion to Vacate Plaintiffs’ Default. For example, despite giving Plaintiffs’ counsel complete and
2 unfettered access to SVRV’s Google Drive for 60 days, Plaintiffs are still moving to compel on
3 each and every request for production propounded on Defendants. Given such positions it is high
4 time this Court intervene either itself or through the appointment of a Discovery Master (at
5 Plaintiffs’ cost). It is impossible to imagine how a party cannot be producing responsive documents
6 when it gives opposing counsel total and complete access to its electronic filing cabinet.
7 To date, Plaintiffs have not altered a single written discovery request despite shortcomings
8 in the requests being pointed out many times to Plaintiffs’ counsel. For example, the relevant period
9 of Plaintiffs’ discovery requests each run from 2017 to the present, i.e., today. Plaintiffs make this
10 demand despite admitting that the Moore Road project ended in October 2020, and litigation began
11 on March 15, 2022 (the outer limit of what should be considered the relevant period). This is
12 another example of Plaintiffs refusing to meaningfully meet and confer on any aspect of the
13 discovery at issue other than Defendants’ responses.
14 In short, the same problem exists now as it did when Plaintiffs first filed a motion to compel
15 on this discovery in September 2022: if Defendants do not do exactly what Mr. Vierra demands,
16 exactly when he wants it done, he immediately threatens sanctions (including for a monetary
17 sanction of $90,123) and runs to the Court.1 But this is not how any meaningful conferral process
18 works – it is how ultimatums work. As set forth below Defendants have made significant efforts to
19 provide Plaintiffs with responsive documents, answers to written discovery, and has not attempted
20 to quash or impede any third-party discovery Plaintiffs have sought, including document subpoenas
21 and depositions.
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See, e.g., Declaration of Mark Poe in Support of Kurtis Kludt’s Opposition to Plaintiffs’ Motion to
26 Compel and For Discovery Sanctions filed September 2, 2022, and Exhibit A attached thereto.
27 Absent Local Rule 3.700(a), Mr. Vierra would have run to the Court sooner. See his April 26, 2023,
ex parte email to the IDC at Exhibit C to the RVS Decl., infra.
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Defendants Bragg and SVRV’s Opposition to Plaintiffs’ Motion to Compel and Request for
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1 II. FACTUAL BACKGROUND
2 To date, significant discovery has taken place. Plaintiffs have burdened Bragg extensive
3 written discovery consisting of seven rounds of written discovery. Defendants answered Plaintiffs
4 overdue written discovery on August 29, 2022. Declaration of Ryan van Steenis (“RVS Decl.”), ¶ 2;
5 see also, Exhibits E-H to Vierra Decl. Defendants also provided Plaintiffs’ access to documents on
6 SVRV’s Google Drive (including editing access to any document Plaintiffs’ counsel requested), and
7 Plaintiffs’ subpoenaed all three of SVRV’s banks as well as Genesis, the senior secured lender on
8 the Moore Rd. project whose loans were personally guaranteed by Bragg. Id. at ¶ 2.
9 On August 22, 2023, Plaintiffs filed a First Amended Complaint, and thereafter a motion to
10 compel on August 25, 2023. On September 16, 2023, the Court denied those motions, including the
11 request for sanctions, for Plaintiffs’ failure to follow Local Rule 3.700(a). Id. ¶ 3.
12 On September 27, 2022, the parties attended an IDC as required by Local Rule 3.700(a). On
13 October 21, 2022, Bragg – a Fire Captain in the Menlo Fire Department and Disabled Combat
14 Veteran – filed for Chapter 7 bankruptcy protection. This created an automatic stay in place from
15 October 21, 2022, until the bankruptcy court lifted the automatic stay on February 24, 2023, sua
16 sponte. Part of the bankruptcy court’s reasoning was based on the extensive discovery of
17 Defendants that had already taken place in the instant action. Id. at ¶ 4.
18 On April 20, 2023, the parties attended their second IDC on Plaintiffs’ written discovery.2
19 At that IDC, Defendants again offered and agreed for counsel to meet with Mr. Vierra in person at
20 Eimer Stahl’s office in San Jose. That meeting occurred on Wednesday, April 26, 2023, with Mr.
21 Vierra, Defendants’ counsel, and Mr. Bragg physically present. Defendants agreed to provide Mr.
22 Vierra unfettered access to SVRV’s Google Drive for a period of 60 days (at his request) in order to
23 have full and complete access to documents. When Defendants stated that access would constitute
24 completion of their document production, Mr. Vierra represented to Defendants and their counsel
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26 2
Officer Mau expressed surprise at why Plaintiffs had requested another IDC on prior written
27 discovery, but Defendants participated anyways.
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Defendants Bragg and SVRV’s Opposition to Plaintiffs’ Motion to Compel and Request for
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1 that “this would complete 90% of it,” coupled with agreed upon terms Mr. Bragg would search for
2 in his personal gmail account and Google Drive to ensure completeness. Id. at ¶ 5, Exhibit A
3 (“Bragg ESI Chart”).3 In addition, before concluding the in-person meet-and-confer, Mr. Bragg
4 created a password for Mr. Vierra to use and provided the requisite 60 days access to SVRV’s
5 Google Drive. Mr. Vierra also agreed to keep Defendants’ counsel updated of his review of
6 SVRV’s Google Drive review – to date, he has not done so. Id. at ¶ 5.
7 In addition, Mr. Bragg informed Mr. Vierra that he had upgraded his phone from an Android
8 to an iPhone earlier this year. He did so as part of a routine upgrade, and switched devices so he
9 could better communicate with his four children and his work (Mr. Bragg has also went through a
10 divorce since this litigation began). This resulted in text messages he sent on his Android device not
11 being recoverable for production on his iPhone device – which Defendants confirmed with their e-
12 discovery experts. As a result, Defendants created a list of relevant persons who received Mr.
13 Bragg’s texts and procure the messages from the recipient rather than the sender. To date,
14 Defendants believe Plaintiffs have the text messages (to the extent they still exist from 2017 to the
15 beginning of litigation) involving Bragg and/or Colleen Marchbank, Kludt, Lukas Leuthold,
16 Whitney Pine, Celeste Rogers, and the Paramont Defendants (which Mr. Vierra deposed Paramont’s
17 witnesses about), and any third parties included in messages involving those individuals. Id. at ¶ 6.
18 Despite these efforts to address Plaintiffs ever increasing discovery demands, Plaintiffs
19 emailed the IDC, ex parte, five minutes after emailing Defendants’ counsel a summary of the meet
20 and confer meeting on the evening of April 26, 2023. See, Exhibit C-4 (10:32 p.m. CT), and cf. with
21 Exhibit C-2 (8:37 p.m. PT). Thus, before Defendants’ counsel had even returned to Texas Plaintiffs
22 were back at the IDC’s door, seeking its blessing to bring a motion to compel. Defendants only
23 became aware of Plaintiffs’ improper ex parte communication on May 1, 2023, when the IDC
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27 Defendants provided this to Plaintiffs on June 7, 2023, but Plaintiffs did not respond to the
transmittal email or make any modifications to the chart. See, Exhibit B to RVS Decl., ¶ 6.
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Defendants Bragg and SVRV’s Opposition to Plaintiffs’ Motion to Compel and Request for
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1 replied to Mr. Vierra’s April 26, 2023, email and included Defendants’ counsel in the response,
2 rejecting Mr. Vierra’s request because it had not been mutually agreed upon. Id. at ¶ 7, Exhibit C-1.
3 On May 11, 2023, Defendants proposed a list of terms to Plaintiffs to search for documents
4 in Mr. Bragg’s gmail account as discussed at the April 26, 2023, meeting and resent the list on May
5 18, 2023. Exhibit D-1, and D-2. On May 19, 2023, Defendants provided Plaintiffs with another 118
6 documents as a result of those searches. Id. at ¶ 8.
7 On May 26, 2023, this Court granted (in part) the Paramont Defendants’ pleadings challenge
8 to Plaintiffs’ First Amended Complaint, and on June 2, 2023, granted Defendants’ request to vacate
9 the default, and denying Plaintiffs motion for entry of default Judgment. On June 7, 2023, the
10 parties held a third and final IDC conference, wherein the Defendants agreed the process should
11 come to an end and allow the Court to participate given the difficulties arising from the meet and
12 confer process with Plaintiffs. On June 12, 2023, Plaintiffs filed the Motion, and (among other
13 things) seeking to compel production on every request for production. On June 30, 2023, Plaintiffs
14 filed their Second Amended Complaint, which will be challenged by Paramont Defendants on
15 September 29, 2023. Id. at ¶ 9.
16 On July 10, 2023, Plaintiffs sent a conclusory letter about Defendants “woefully
17 insufficient” proposed search list despite Defendants’ list being more robust. See Exhibit A. Mr.
18 Vierra’s letter did not offer any meaningful effort to meet and confer over Plaintiffs’ continued
19 concerns and simply outlined the same purported laundry list of complaints regardless of
20 Defendants’ efforts to address them. Id. at ¶ 10, Exhibit E (Vierra’s July 10, 2023, letter).
21 III. ARGUMENT AND AUTHORITY
22 A. Plaintiffs’ Meet-and-Confer Efforts Were Not A Meaningful Attempt to Resolve
Discovery Disputes Between the Parties Informally
23
24 “A determination of whether an attempt at informal resolution is adequate ... involves the
25 exercise of discretion. The level of effort at informal resolution which satisfies the ‘reasonable and
26 good faith attempt’ standard depends upon the circumstances. In a larger, more complex discovery
27 context, a greater effort at informal resolution may be warranted. In a simpler, or more narrowly
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Defendants Bragg and SVRV’s Opposition to Plaintiffs’ Motion to Compel and Request for
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1 focused case, a more modest effort may suffice. The history of the litigation, the nature of the
2 interaction between counsel, the nature of the issues, the type and scope of discovery requested, the
3 prospects for success and other similar factors can be relevant. Judges have broad powers and
4 responsibility to determine what measure and procedures are appropriate in varying circumstances.”
5 Stewart v. Colonial W. Agency, Inc. (2001) 87 Cal. App. 4th 1006, 1016.
6 On the warpath against Defendants (and particularly Bragg) since the beginning of this
7 litigation, the last three months of work to provide Plaintiffs with access to databases, responsive
8 documents from Bragg’s gmail and Google Drive (all largely duplicative of what has already been
9 produced), finding solutions to the text message matters, etc., demonstrates Mr. Vierra will not be
10 satisfied with Defendants’ discovery efforts under any circumstances. He must remain dissatisfied
11 so Plaintiffs can make yet another attempt at sanctions, but as Plaintiffs’ papers make clear, never
12 made a reasonable and good faith attempt at an informal resolution between the parties. CCP §
13 2016.040.
14 Plaintiffs’ unreasonableness is amply demonstrated by the fact that the Motion makes a
15 single reference to Defendants’ agreement to provide Plaintiffs access to SVRV’s Google drive
16 (Motion 10:6-8) – which, according to Plaintiffs’ counsel, would complete 90% of Defendants’
17 document production – but they still filed a motion seeking an order to compel on every single
18 request for production anyways, including a request for sanctions. When Bragg supplied documents
19 from his gmail and Google Drive based on search terms provided by Defendants, Plaintiffs
20 complained it was insufficient because he did not include the “CC” and “Bcc” fields (Motion, 11:2-
21 3). This is a hollow complaint, dragged up to make it look like Defendants are making a half-
22 hearted search for documents, but in a personal gmail account searching the “to” and “from”
23 categories will catch “CC” and “Bcc” fields for documents.4
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See, https://support.google.com/mail/answer/6593?hl=en&co=GENIE.Platform%3DDesktop, for
26 available search filters in a gmail account: Label, From, To, Attachment, Date, Is unread, Exclude
27 calendar updates (last visited, August 7, 2023).
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Defendants Bragg and SVRV’s Opposition to Plaintiffs’ Motion to Compel and Request for
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1 In addition, Plaintiffs have made no genuine effort to narrow or refine any of their requests
2 in light of Defendants’ objections, assuming each and every request, as drafted, is perfectly stated.
3 Defendants’ objections are summarily dismissed as “utterly frivolous” (Motion, 12:10). Plaintiffs’
4 request for admission no. 18 provides a good example of the difficulties Defendants have
5 encountered in this process. First, Plaintiffs’ definition of “You” includes attorneys, so seeks
6 potentially protected information; second, the Relevant Period starts in 2017 and runs “through the
7 date of response,” with the proviso that it “shall include all information that relates … to such
8 period even though dated, prepared, or received prior or subsequent to that period,” which arguably
9 makes it continuing; and third, it seeks information not reasonably calculated to lead to the
10 discovery of admissible evidence. Plaintiffs selectively edited Defendants’ response in their Motion
11 to restate their position, but do not deal with the objection head on: “Defendants also object to this
12 request for admission because it is not reasonably calculated to lead to the discovery of any
13 admissible evidence. Defendants, as Plaintiffs know, were under no obligation to may any monetary
14 investment in the Project. Thus, this request for admission seeks information that is not reasonable
15 calculated to lead to the discovery of admissible evidence.” See, Vierra Decl., Exhibit Page 99, and
16 230; cf. with Motion at:12:14-22.5 This pattern continues all throughout their written discovery,
17 evident from Mr. Vierra’s Motion, Declaration, and supporting exhibits.6
18 B. Plaintiffs Requests for Sanctions Are Bloated, Unsupported, and Procedurally
Improper
19
20 Plaintiffs seek every sort of sanction imaginable under the Code of Civil Procedure,
21 including a request for admissions to be deemed admitted (which should have been brought as a
22 separate motion under CCP 2033.280). But sanctions are not warranted here – direction from the
23
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24 It is these sorts of selective editing of the record that demonstrates why Defendants wish to deal
with Plaintiffs’ counsel in writing.
25
6
Bragg also did not spoil his website. He stopped paying the monthly hosting fee associated with it
26 after business operations ceased. It can still be captured at the Internet Archive. See, e.g.,
27 https://web.archive.org/web/20190904163543/https://www.realsv.com/development/ (last accessed,
Aug. 7, 2023).
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Defendants Bragg and SVRV’s Opposition to Plaintiffs’ Motion to Compel and Request for
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1 Court, however, is. And as a reminder, Plaintiffs are the only party who has been exposed to
2 sanctions under CCP 2031.320 (which the Court, in its discretion, did not award) for unsuccessfully
3 making a motion to compel in September 2022. The Court dismissed Plaintiffs’ motions without
4 prejudice and should do the same again.
5 A sanctions order cannot go further than is necessary to accomplish the purpose of
6 discovery, and is rooted in constitutional due process. Newland v. Superior Court, 40 Cal.App.4th
7 608, 613. Here, Plaintiffs seek evidentiary, issue, and (the most extreme) terminating sanctions, as
8 well as monetary sanctions, that go far beyond anything necessary to accomplish the purpose of
9 discovery, especially in light of Defendants’ responses and production of documents. In addition,
10 the information contained in Mr. Vierra’s declaration purportedly supporting the $90,000+ sanction
11 request does not provide his typical hourly rate, or the number of hours expended, in bringing round
12 two of Plaintiffs’ Motion. It simply summarizes alleged fees and costs without substantiation,
13 purportedly rounds the sanction request amount down to appear more reasonable, and states the
14 total amount demanded without the necessary backup to allow the Court to assess demand.
15 C. The Bankruptcy Court Focused the Parties’ Attention on the Existence of a Debt
and Reserved Jurisdiction Over Dischargeability
16
17 Plaintiffs misconstrue the bankruptcy court’s order and their efforts in that forum. Rightly
18 noting that the bankruptcy court lifted the stay to allow this Court to determine whether Bragg owes
19 a “debt,” and, if so the amount, Plaintiffs veer off course by failing to mention that the bankruptcy
20 court reserved jurisdiction to determine whether Plaintiffs’ claimed unliquidated debt is
21 dischargeable or not. Plaintiffs’ adversarial complaint (2-22-bk-22700) claims any debt Bragg owes
22 is nondischargeable under 11 U.S.C. § 523(a)(2)(A) – money obtained by false pretenses, false
23 representations or actual fraud; (a)(4) – money obtained by fraud or defalcation while acting in a
24 fiduciary capacity, embezzlement, or larceny; and (a)(6) – willful and malicious injury by the debtor
25 to plaintiffs. Accordingly, Plaintiffs’ state court discovery focused on developing evidence for
26 Plaintiffs’ claims of exception from discharge (and seems to be the vast majority of what is being
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Defendants Bragg and SVRV’s Opposition to Plaintiffs’ Motion to Compel and Request for
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1 sought) would intrude on the jurisdiction the bankruptcy court specifically reserved for itself in
2 order to determine dischargeability.
3 And it seems Plaintiffs agreed, at least at one time, that the debt at issue is not their
4 investments in Moore Road, but rather the one remaining unpaid purported loan to Bob Arntsen.
5 Bob admitted he and the other Plaintiffs understood the risks associated with the Moore Road
6 project. But he did demand repayment of his alleged loan. On May 28, 2021, he wrote to Bragg:
7 “Dave, our family understand there is risk in any such investment. We have been patient,
8 understanding, and not blaming you or Kurtis. *** Please don’t make it necessary for us to resort to
9 a third party to get our questions answered and make provision for the return of my loan” Exhibit M
10 to Vierra Decl., Exhibit Page 277. If so, then the bankruptcy court was right to narrow the focus of
11 the parties’ dispute to the existence of a debt, and its amount, and nothing further at this stage in the
12 litigation, while reserving to itself jurisdiction over the issues related to the dischargeability of debt,
13 i.e., fraud, misrepresentation, etc.
14 IV. CONCLUSION
15 For the reasons set forth in these papers, and any arguments considered at argument
16 Defendants request this Court DENY the relief Plaintiffs seek including all of Plaintiffs’ improper
17 requests for evidentiary, terminating, and issue sanctions as well as Plaintiffs’ excessive and
18 unsupported request for monetary sanctions.
19 DATED: August 7, 2023
20
Ryan van Steenis
21 Counsel for Bragg and SVRV
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Defendants Bragg and SVRV’s Opposition to Plaintiffs’ Motion to Compel and Request for
Sanctions
1 PROOF OF SERVICE
I am over the age of 18 and not a party to this action. I hereby certify that on August 7,
2
2023, I served the following document(s) on the parties in the above-entitled action:
3
4 OPPOSITION TO PLAINTIFFS’ JUNE 12, 2023, MOTION TO COMPEL AND REQUEST
5 FOR SANCTIONS
6 Via Email: I emailed the document(s) referenced above to the following persons at the following
7 email addresses:
8
Collin Vierra
9 cvierra@eimerstahl.com
Counsel for Plaintiffs
10
11 Jessica Chong
jchong@spencerfane.com
12 Brian Zimmerman
bzimmerman@spencerfane.com
13 Nicolas Reisch
nreisch@spencerfane.com
14
Ernesto Aldover
15 ernesto@arealestatelawfirm.com
Counsel for Defendants Gregory J. Davis, Kevin Wolfe, Jason Justesen, Paramont
16 Woodside, LLC, Paramont Capital, LLC, SVRV 385 Moore, LLC, and SVRV 387 Moore,
LLC
17 I declare under penalty of perjury under the laws of the State of California that the foregoing is a
18 true and correct statement.
19 Dated: August 7, 2023
20
Ryan van Steenis
21 Attorney for Defendant Bragg and
Silicon Valley Real Ventures, LLC
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Defendants Bragg and SVRV’s Opposition to Plaintiffs’ Motion to Compel and Request for
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Preview
1 Ryan van Steenis (SBN 254542) 1601 S Shepherd Dr., #276 2 Houston, Texas 77019 314-749-2284 3 Email: rjvansteenis@gmail.com 4 Attorney for Defendants Dave Bragg, and 5 Silicon Valley Real Ventures, LLC 6 7 SUPERIOR COURT OF THE STATE OF CALIFORNIA 8 FOR THE COUNTY OF SAN MATEO 9 10 Robert Arntsen; Mary Lee; Arntsen Family ) Case No.: 22-CIV-01148 11 Partnership, LP; and Brian Christopher Dunn ) Custodianship, ) 12 Plaintiff(s), ) OPPOSITION TO PLAINTIFFS’ JUNE 12, 13 ) 2023, MOTION TO COMPEL AND vs. ) REQUEST FOR SANCTIONS 14 ) David M. Bragg; Kurtis Stuart Kludt; Silicon ) Judge: Hon. Robert D. Foiles 15 Valley Real Ventures LLC; SVRV 385 Moore, ) Date: August 18, 2023 LLC; SVRV 387 Moore, LLC; Gregory J. Davis; ) Time: 9:00 a.m. 16 Kevin Wolfe; Jason Justesen; Paramont ) Dept: 21 Woodside, LLC; and Paramont Capital, LLC, ) Courtroom: 2J 17 ) Action Filed: March 15, 2022 18 ) Trial Date: Unassigned Defendant(s). ) 19 ) ) 20 21 I. INTRODUCTION 22 Plaintiffs’ June 12, 2023, Motion to Compel and Request for Sanctions (“Motion”) is 23 another attempt (in a long line) to seek sanctions against Defendants Bragg and Silicon Valley Real 24 Ventures, LLC (collectively, “Defendants”) for matters that are routinely worked out between 25 reasonable counsel. This Motion is a result of Plaintiffs’ counsel’s failure to meaningfully confer 26 over the discovery at issue – a problem the Court noted in the June 2, 2023, hearing on Defendants’ 27 28 -1- Defendants Bragg and SVRV’s Opposition to Plaintiffs’ Motion to Compel and Request for Sanctions 1 Motion to Vacate Plaintiffs’ Default. For example, despite giving Plaintiffs’ counsel complete and 2 unfettered access to SVRV’s Google Drive for 60 days, Plaintiffs are still moving to compel on 3 each and every request for production propounded on Defendants. Given such positions it is high 4 time this Court intervene either itself or through the appointment of a Discovery Master (at 5 Plaintiffs’ cost). It is impossible to imagine how a party cannot be producing responsive documents 6 when it gives opposing counsel total and complete access to its electronic filing cabinet. 7 To date, Plaintiffs have not altered a single written discovery request despite shortcomings 8 in the requests being pointed out many times to Plaintiffs’ counsel. For example, the relevant period 9 of Plaintiffs’ discovery requests each run from 2017 to the present, i.e., today. Plaintiffs make this 10 demand despite admitting that the Moore Road project ended in October 2020, and litigation began 11 on March 15, 2022 (the outer limit of what should be considered the relevant period). This is 12 another example of Plaintiffs refusing to meaningfully meet and confer on any aspect of the 13 discovery at issue other than Defendants’ responses. 14 In short, the same problem exists now as it did when Plaintiffs first filed a motion to compel 15 on this discovery in September 2022: if Defendants do not do exactly what Mr. Vierra demands, 16 exactly when he wants it done, he immediately threatens sanctions (including for a monetary 17 sanction of $90,123) and runs to the Court.1 But this is not how any meaningful conferral process 18 works – it is how ultimatums work. As set forth below Defendants have made significant efforts to 19 provide Plaintiffs with responsive documents, answers to written discovery, and has not attempted 20 to quash or impede any third-party discovery Plaintiffs have sought, including document subpoenas 21 and depositions. 22 23 24 25 1 See, e.g., Declaration of Mark Poe in Support of Kurtis Kludt’s Opposition to Plaintiffs’ Motion to 26 Compel and For Discovery Sanctions filed September 2, 2022, and Exhibit A attached thereto. 27 Absent Local Rule 3.700(a), Mr. Vierra would have run to the Court sooner. See his April 26, 2023, ex parte email to the IDC at Exhibit C to the RVS Decl., infra. 28 -2- Defendants Bragg and SVRV’s Opposition to Plaintiffs’ Motion to Compel and Request for Sanctions 1 II. FACTUAL BACKGROUND 2 To date, significant discovery has taken place. Plaintiffs have burdened Bragg extensive 3 written discovery consisting of seven rounds of written discovery. Defendants answered Plaintiffs 4 overdue written discovery on August 29, 2022. Declaration of Ryan van Steenis (“RVS Decl.”), ¶ 2; 5 see also, Exhibits E-H to Vierra Decl. Defendants also provided Plaintiffs’ access to documents on 6 SVRV’s Google Drive (including editing access to any document Plaintiffs’ counsel requested), and 7 Plaintiffs’ subpoenaed all three of SVRV’s banks as well as Genesis, the senior secured lender on 8 the Moore Rd. project whose loans were personally guaranteed by Bragg. Id. at ¶ 2. 9 On August 22, 2023, Plaintiffs filed a First Amended Complaint, and thereafter a motion to 10 compel on August 25, 2023. On September 16, 2023, the Court denied those motions, including the 11 request for sanctions, for Plaintiffs’ failure to follow Local Rule 3.700(a). Id. ¶ 3. 12 On September 27, 2022, the parties attended an IDC as required by Local Rule 3.700(a). On 13 October 21, 2022, Bragg – a Fire Captain in the Menlo Fire Department and Disabled Combat 14 Veteran – filed for Chapter 7 bankruptcy protection. This created an automatic stay in place from 15 October 21, 2022, until the bankruptcy court lifted the automatic stay on February 24, 2023, sua 16 sponte. Part of the bankruptcy court’s reasoning was based on the extensive discovery of 17 Defendants that had already taken place in the instant action. Id. at ¶ 4. 18 On April 20, 2023, the parties attended their second IDC on Plaintiffs’ written discovery.2 19 At that IDC, Defendants again offered and agreed for counsel to meet with Mr. Vierra in person at 20 Eimer Stahl’s office in San Jose. That meeting occurred on Wednesday, April 26, 2023, with Mr. 21 Vierra, Defendants’ counsel, and Mr. Bragg physically present. Defendants agreed to provide Mr. 22 Vierra unfettered access to SVRV’s Google Drive for a period of 60 days (at his request) in order to 23 have full and complete access to documents. When Defendants stated that access would constitute 24 completion of their document production, Mr. Vierra represented to Defendants and their counsel 25 26 2 Officer Mau expressed surprise at why Plaintiffs had requested another IDC on prior written 27 discovery, but Defendants participated anyways. 28 -3- Defendants Bragg and SVRV’s Opposition to Plaintiffs’ Motion to Compel and Request for Sanctions 1 that “this would complete 90% of it,” coupled with agreed upon terms Mr. Bragg would search for 2 in his personal gmail account and Google Drive to ensure completeness. Id. at ¶ 5, Exhibit A 3 (“Bragg ESI Chart”).3 In addition, before concluding the in-person meet-and-confer, Mr. Bragg 4 created a password for Mr. Vierra to use and provided the requisite 60 days access to SVRV’s 5 Google Drive. Mr. Vierra also agreed to keep Defendants’ counsel updated of his review of 6 SVRV’s Google Drive review – to date, he has not done so. Id. at ¶ 5. 7 In addition, Mr. Bragg informed Mr. Vierra that he had upgraded his phone from an Android 8 to an iPhone earlier this year. He did so as part of a routine upgrade, and switched devices so he 9 could better communicate with his four children and his work (Mr. Bragg has also went through a 10 divorce since this litigation began). This resulted in text messages he sent on his Android device not 11 being recoverable for production on his iPhone device – which Defendants confirmed with their e- 12 discovery experts. As a result, Defendants created a list of relevant persons who received Mr. 13 Bragg’s texts and procure the messages from the recipient rather than the sender. To date, 14 Defendants believe Plaintiffs have the text messages (to the extent they still exist from 2017 to the 15 beginning of litigation) involving Bragg and/or Colleen Marchbank, Kludt, Lukas Leuthold, 16 Whitney Pine, Celeste Rogers, and the Paramont Defendants (which Mr. Vierra deposed Paramont’s 17 witnesses about), and any third parties included in messages involving those individuals. Id. at ¶ 6. 18 Despite these efforts to address Plaintiffs ever increasing discovery demands, Plaintiffs 19 emailed the IDC, ex parte, five minutes after emailing Defendants’ counsel a summary of the meet 20 and confer meeting on the evening of April 26, 2023. See, Exhibit C-4 (10:32 p.m. CT), and cf. with 21 Exhibit C-2 (8:37 p.m. PT). Thus, before Defendants’ counsel had even returned to Texas Plaintiffs 22 were back at the IDC’s door, seeking its blessing to bring a motion to compel. Defendants only 23 became aware of Plaintiffs’ improper ex parte communication on May 1, 2023, when the IDC 24 25 26 3 27 Defendants provided this to Plaintiffs on June 7, 2023, but Plaintiffs did not respond to the transmittal email or make any modifications to the chart. See, Exhibit B to RVS Decl., ¶ 6. 28 -4- Defendants Bragg and SVRV’s Opposition to Plaintiffs’ Motion to Compel and Request for Sanctions 1 replied to Mr. Vierra’s April 26, 2023, email and included Defendants’ counsel in the response, 2 rejecting Mr. Vierra’s request because it had not been mutually agreed upon. Id. at ¶ 7, Exhibit C-1. 3 On May 11, 2023, Defendants proposed a list of terms to Plaintiffs to search for documents 4 in Mr. Bragg’s gmail account as discussed at the April 26, 2023, meeting and resent the list on May 5 18, 2023. Exhibit D-1, and D-2. On May 19, 2023, Defendants provided Plaintiffs with another 118 6 documents as a result of those searches. Id. at ¶ 8. 7 On May 26, 2023, this Court granted (in part) the Paramont Defendants’ pleadings challenge 8 to Plaintiffs’ First Amended Complaint, and on June 2, 2023, granted Defendants’ request to vacate 9 the default, and denying Plaintiffs motion for entry of default Judgment. On June 7, 2023, the 10 parties held a third and final IDC conference, wherein the Defendants agreed the process should 11 come to an end and allow the Court to participate given the difficulties arising from the meet and 12 confer process with Plaintiffs. On June 12, 2023, Plaintiffs filed the Motion, and (among other 13 things) seeking to compel production on every request for production. On June 30, 2023, Plaintiffs 14 filed their Second Amended Complaint, which will be challenged by Paramont Defendants on 15 September 29, 2023. Id. at ¶ 9. 16 On July 10, 2023, Plaintiffs sent a conclusory letter about Defendants “woefully 17 insufficient” proposed search list despite Defendants’ list being more robust. See Exhibit A. Mr. 18 Vierra’s letter did not offer any meaningful effort to meet and confer over Plaintiffs’ continued 19 concerns and simply outlined the same purported laundry list of complaints regardless of 20 Defendants’ efforts to address them. Id. at ¶ 10, Exhibit E (Vierra’s July 10, 2023, letter). 21 III. ARGUMENT AND AUTHORITY 22 A. Plaintiffs’ Meet-and-Confer Efforts Were Not A Meaningful Attempt to Resolve Discovery Disputes Between the Parties Informally 23 24 “A determination of whether an attempt at informal resolution is adequate ... involves the 25 exercise of discretion. The level of effort at informal resolution which satisfies the ‘reasonable and 26 good faith attempt’ standard depends upon the circumstances. In a larger, more complex discovery 27 context, a greater effort at informal resolution may be warranted. In a simpler, or more narrowly 28 -5- Defendants Bragg and SVRV’s Opposition to Plaintiffs’ Motion to Compel and Request for Sanctions 1 focused case, a more modest effort may suffice. The history of the litigation, the nature of the 2 interaction between counsel, the nature of the issues, the type and scope of discovery requested, the 3 prospects for success and other similar factors can be relevant. Judges have broad powers and 4 responsibility to determine what measure and procedures are appropriate in varying circumstances.” 5 Stewart v. Colonial W. Agency, Inc. (2001) 87 Cal. App. 4th 1006, 1016. 6 On the warpath against Defendants (and particularly Bragg) since the beginning of this 7 litigation, the last three months of work to provide Plaintiffs with access to databases, responsive 8 documents from Bragg’s gmail and Google Drive (all largely duplicative of what has already been 9 produced), finding solutions to the text message matters, etc., demonstrates Mr. Vierra will not be 10 satisfied with Defendants’ discovery efforts under any circumstances. He must remain dissatisfied 11 so Plaintiffs can make yet another attempt at sanctions, but as Plaintiffs’ papers make clear, never 12 made a reasonable and good faith attempt at an informal resolution between the parties. CCP § 13 2016.040. 14 Plaintiffs’ unreasonableness is amply demonstrated by the fact that the Motion makes a 15 single reference to Defendants’ agreement to provide Plaintiffs access to SVRV’s Google drive 16 (Motion 10:6-8) – which, according to Plaintiffs’ counsel, would complete 90% of Defendants’ 17 document production – but they still filed a motion seeking an order to compel on every single 18 request for production anyways, including a request for sanctions. When Bragg supplied documents 19 from his gmail and Google Drive based on search terms provided by Defendants, Plaintiffs 20 complained it was insufficient because he did not include the “CC” and “Bcc” fields (Motion, 11:2- 21 3). This is a hollow complaint, dragged up to make it look like Defendants are making a half- 22 hearted search for documents, but in a personal gmail account searching the “to” and “from” 23 categories will catch “CC” and “Bcc” fields for documents.4 24 25 4 See, https://support.google.com/mail/answer/6593?hl=en&co=GENIE.Platform%3DDesktop, for 26 available search filters in a gmail account: Label, From, To, Attachment, Date, Is unread, Exclude 27 calendar updates (last visited, August 7, 2023). 28 -6- Defendants Bragg and SVRV’s Opposition to Plaintiffs’ Motion to Compel and Request for Sanctions 1 In addition, Plaintiffs have made no genuine effort to narrow or refine any of their requests 2 in light of Defendants’ objections, assuming each and every request, as drafted, is perfectly stated. 3 Defendants’ objections are summarily dismissed as “utterly frivolous” (Motion, 12:10). Plaintiffs’ 4 request for admission no. 18 provides a good example of the difficulties Defendants have 5 encountered in this process. First, Plaintiffs’ definition of “You” includes attorneys, so seeks 6 potentially protected information; second, the Relevant Period starts in 2017 and runs “through the 7 date of response,” with the proviso that it “shall include all information that relates … to such 8 period even though dated, prepared, or received prior or subsequent to that period,” which arguably 9 makes it continuing; and third, it seeks information not reasonably calculated to lead to the 10 discovery of admissible evidence. Plaintiffs selectively edited Defendants’ response in their Motion 11 to restate their position, but do not deal with the objection head on: “Defendants also object to this 12 request for admission because it is not reasonably calculated to lead to the discovery of any 13 admissible evidence. Defendants, as Plaintiffs know, were under no obligation to may any monetary 14 investment in the Project. Thus, this request for admission seeks information that is not reasonable 15 calculated to lead to the discovery of admissible evidence.” See, Vierra Decl., Exhibit Page 99, and 16 230; cf. with Motion at:12:14-22.5 This pattern continues all throughout their written discovery, 17 evident from Mr. Vierra’s Motion, Declaration, and supporting exhibits.6 18 B. Plaintiffs Requests for Sanctions Are Bloated, Unsupported, and Procedurally Improper 19 20 Plaintiffs seek every sort of sanction imaginable under the Code of Civil Procedure, 21 including a request for admissions to be deemed admitted (which should have been brought as a 22 separate motion under CCP 2033.280). But sanctions are not warranted here – direction from the 23 5 24 It is these sorts of selective editing of the record that demonstrates why Defendants wish to deal with Plaintiffs’ counsel in writing. 25 6 Bragg also did not spoil his website. He stopped paying the monthly hosting fee associated with it 26 after business operations ceased. It can still be captured at the Internet Archive. See, e.g., 27 https://web.archive.org/web/20190904163543/https://www.realsv.com/development/ (last accessed, Aug. 7, 2023). 28 -7- Defendants Bragg and SVRV’s Opposition to Plaintiffs’ Motion to Compel and Request for Sanctions 1 Court, however, is. And as a reminder, Plaintiffs are the only party who has been exposed to 2 sanctions under CCP 2031.320 (which the Court, in its discretion, did not award) for unsuccessfully 3 making a motion to compel in September 2022. The Court dismissed Plaintiffs’ motions without 4 prejudice and should do the same again. 5 A sanctions order cannot go further than is necessary to accomplish the purpose of 6 discovery, and is rooted in constitutional due process. Newland v. Superior Court, 40 Cal.App.4th 7 608, 613. Here, Plaintiffs seek evidentiary, issue, and (the most extreme) terminating sanctions, as 8 well as monetary sanctions, that go far beyond anything necessary to accomplish the purpose of 9 discovery, especially in light of Defendants’ responses and production of documents. In addition, 10 the information contained in Mr. Vierra’s declaration purportedly supporting the $90,000+ sanction 11 request does not provide his typical hourly rate, or the number of hours expended, in bringing round 12 two of Plaintiffs’ Motion. It simply summarizes alleged fees and costs without substantiation, 13 purportedly rounds the sanction request amount down to appear more reasonable, and states the 14 total amount demanded without the necessary backup to allow the Court to assess demand. 15 C. The Bankruptcy Court Focused the Parties’ Attention on the Existence of a Debt and Reserved Jurisdiction Over Dischargeability 16 17 Plaintiffs misconstrue the bankruptcy court’s order and their efforts in that forum. Rightly 18 noting that the bankruptcy court lifted the stay to allow this Court to determine whether Bragg owes 19 a “debt,” and, if so the amount, Plaintiffs veer off course by failing to mention that the bankruptcy 20 court reserved jurisdiction to determine whether Plaintiffs’ claimed unliquidated debt is 21 dischargeable or not. Plaintiffs’ adversarial complaint (2-22-bk-22700) claims any debt Bragg owes 22 is nondischargeable under 11 U.S.C. § 523(a)(2)(A) – money obtained by false pretenses, false 23 representations or actual fraud; (a)(4) – money obtained by fraud or defalcation while acting in a 24 fiduciary capacity, embezzlement, or larceny; and (a)(6) – willful and malicious injury by the debtor 25 to plaintiffs. Accordingly, Plaintiffs’ state court discovery focused on developing evidence for 26 Plaintiffs’ claims of exception from discharge (and seems to be the vast majority of what is being 27 28 -8- Defendants Bragg and SVRV’s Opposition to Plaintiffs’ Motion to Compel and Request for Sanctions 1 sought) would intrude on the jurisdiction the bankruptcy court specifically reserved for itself in 2 order to determine dischargeability. 3 And it seems Plaintiffs agreed, at least at one time, that the debt at issue is not their 4 investments in Moore Road, but rather the one remaining unpaid purported loan to Bob Arntsen. 5 Bob admitted he and the other Plaintiffs understood the risks associated with the Moore Road 6 project. But he did demand repayment of his alleged loan. On May 28, 2021, he wrote to Bragg: 7 “Dave, our family understand there is risk in any such investment. We have been patient, 8 understanding, and not blaming you or Kurtis. *** Please don’t make it necessary for us to resort to 9 a third party to get our questions answered and make provision for the return of my loan” Exhibit M 10 to Vierra Decl., Exhibit Page 277. If so, then the bankruptcy court was right to narrow the focus of 11 the parties’ dispute to the existence of a debt, and its amount, and nothing further at this stage in the 12 litigation, while reserving to itself jurisdiction over the issues related to the dischargeability of debt, 13 i.e., fraud, misrepresentation, etc. 14 IV. CONCLUSION 15 For the reasons set forth in these papers, and any arguments considered at argument 16 Defendants request this Court DENY the relief Plaintiffs seek including all of Plaintiffs’ improper 17 requests for evidentiary, terminating, and issue sanctions as well as Plaintiffs’ excessive and 18 unsupported request for monetary sanctions. 19 DATED: August 7, 2023 20 Ryan van Steenis 21 Counsel for Bragg and SVRV 22 23 24 25 26 27 28 -9- Defendants Bragg and SVRV’s Opposition to Plaintiffs’ Motion to Compel and Request for Sanctions 1 PROOF OF SERVICE I am over the age of 18 and not a party to this action. I hereby certify that on August 7, 2 2023, I served the following document(s) on the parties in the above-entitled action: 3 4 OPPOSITION TO PLAINTIFFS’ JUNE 12, 2023, MOTION TO COMPEL AND REQUEST 5 FOR SANCTIONS 6 Via Email: I emailed the document(s) referenced above to the following persons at the following 7 email addresses: 8 Collin Vierra 9 cvierra@eimerstahl.com Counsel for Plaintiffs 10 11 Jessica Chong jchong@spencerfane.com 12 Brian Zimmerman bzimmerman@spencerfane.com 13 Nicolas Reisch nreisch@spencerfane.com 14 Ernesto Aldover 15 ernesto@arealestatelawfirm.com Counsel for Defendants Gregory J. Davis, Kevin Wolfe, Jason Justesen, Paramont 16 Woodside, LLC, Paramont Capital, LLC, SVRV 385 Moore, LLC, and SVRV 387 Moore, LLC 17 I declare under penalty of perjury under the laws of the State of California that the foregoing is a 18 true and correct statement. 19 Dated: August 7, 2023 20 Ryan van Steenis 21 Attorney for Defendant Bragg and Silicon Valley Real Ventures, LLC 22 23 24 25 26 27 28 -1- Defendants Bragg and SVRV’s Opposition to Plaintiffs’ Motion to Compel and Request for Sanctions