Preview
1 Christopher J. Fry, Esq. (SBN: 298874)
Email: cfry@frylawcorp.com
2 Kristine Du, Esq. (SBN: 338095)
Email: kdu@frylawcorp.com
3 FRY LAW CORPORATION
980 9th Street, 16th Floor
4 Sacramento, California 95814
Telephone: (916) 291-0700
5 Facsimile: (916) 848-0256
6 Attorneys for Plaintiff,
SHERRY LARSEN and dba CALIFORNIA STATE ENTERPRISES
7
8 SUPERIOR COURT FOR THE STATE OF CALIFORNIA
9 IN AND FOR THE COUNTY OF PLACER
10
11
12 SHERRY LARSEN, individually and dba CASE NO.: S-CV-0045659
CALIFORNIA STATE ENTERPRISES,
13 REPLY IN SUPPORT OF MOTION TO
Plaintiff, REOPEN DISCOVERY
14
vs. Date: February 14, 2023
15
PLACER VALLEY SPORTS COMPLEX, Time: 8:30 a.m.
16 INC. dba @the Grounds, a California
Corporation; and DOES 1-10, inclusive, Dept.: 31
17
Defendants. Trial: April 3, 2023
18
Action Filed: October 2, 2020
19
20
21
22
23
24
25
26
27
28
REPLY
1 Plaintiff, SHERRY LARSEN, by and through counsel, hereby respectfully submits
2 this reply in support of the motion to reopen discovery as set forth below:
3 A large portion of Defendant’s opposition is spent arguing that this Court, with
4 virtually unlimited authority to make, change, modify or set aside its own orders, is barred
5 from granting the motion to re-open. It makes this argument based on prior trial setting
6 orders.
7 The problem with this argument is the former orders did not consider the possibility
8 that the actual trial date would be continued. It is obviously quite common for trials and
9 related deadlines to be pushed out; the former orders do not specifically state that this
10 cannot be the case. Additionally, the argument that a motion to reconsider, modify, etc.
11 under CCP section 1003 and 1008, is necessary is nonsensical as set forth more fully
12 below.
13 Defendant then argues that Plaintiff has not acted in good faith and though entirely
14 ignoring Plaintiff’s many attempts to meet and confer, produce witnesses, etc., has the
15 audacity to request sanctions.
16 The additional arguments should be wholly disregarded.
17 Based on the foregoing, the motion should be granted and Plaintiff should be
18 allowed to have her day in Court, with all appropriate witnesses.
19 ARGUMENT
20 A. The Typo In The Notice Is Not Grounds To Deny Plaintiff A Day In Court.
21 Defendant contends that because a typo carried over from a prior motion, the
22 notice is defective. Clearly Defendant has an ample understanding of the “nature of the
23 order being sought and the grounds for issuance of that order” as required by CRC as it
24 has prepared a 20 page opposition and even admits that it understands the arguments
25 and requests. The argument should be wholly disregarded.
26 //
27 //
28
REPLY
1
1 B. The Court Has Inherent Authority To Enter Orders Of Which Plaintiff Is
2 Requesting.
3 This Court has the power to do virtually anything in the furtherance of justice. Code
4 of Civil Procedure provides significant latitude to Courts when managing their own
5 dockets. (To name a few, CCP section 473 (unlimited authority to set aside judgments or
6 orders), 1008 (authority to amend, modify or reconsider prior rulings). (See generally,
7 Cruz v. Fagor America, Inc. (2006) 146 Cal.App.4th 488; Le Francois v. Goel (2005) 35
8 Cal.4th 1094.) However, Defendant makes the argument that CCP section 2024, et seq.,
9 does not allow the Court to re-open the discovery deadlines and instead, improperly
10 argues that a motion to reconsider orders from nearly a year ago is the appropriate
11 method. The argument is nonsensical.
12 First and foremost, the orders that were made nearly a year ago did not anticipate
13 a trial continuance. As with every case that gets set for trial, a trial setting order is issued,
14 the trial related deadlines are ordered, and it is ordinarily required to file a motion to get
15 trial continued and deadlines pushed out. This does not require a motion to reconsider
16 the trial setting orders, it requires a motion to continue the trial and related deadlines. This
17 was done, and the motion to continue was granted. Now, the appropriate remedy is a
18 motion to re-open.
19 Second, as for Defendant’s contention that this motion is not the appropriate
20 motion, the statutes for a motion for reconsideration (CCP section 1008), cannot be met.
21 First and foremost, the motion is to be brought ten (10) days after the order. This would
22 mean a litigant would have to know within ten (10) days of trial setting that a continuance
23 is necessary. Next, reconsideration is only appropriate when the judge failed to consider
24 existing facts or there are new facts or authorities. This is not applicable here. The fact
25 that the Court deleted language about good cause is irrelevant. In the motion to continue,
26 the Court found good cause to push out trial dates and did so. The former orders were
27 superseded by the Court’s order continuing the trial. The only issue that is now left is the
28
REPLY
2
1 issue of whether Plaintiff will be given an opportunity to produce herself and her expert to
2 avoid a terminal motion in limine.
3 The Court could not have known that either party would request a continuance and
4 could not have meant the order to mean that discovery could never be re-opened.
5 C. Plaintiff Has Shown Good Cause To Reopen Discovery To Avoid A Technical
6 Loss; There Is No Prejudice For Having To Prepare For Trial.
7 Defendant seemingly ignores Plaintiff’s declaration filed in support of this motion.
8 It is clear, Plaintiff was not available for her second session of testimony in a deposition,
9 her expert, being in Southern California, was having difficulty with the travel. When
10 Plaintiff attempted to meet and confer on this issue, just as with this motion, Defendant
11 refused to offer any solutions and ultimately failed to take the depositions. No motion to
12 compel was filed or heard. Instead, Defendant used this to file motions in limine to bar
13 Plaintiff and her expert from testifying.
14 Defendant also contends that it will suffer prejudice if it is forced to re-prepare for
15 trial. However, the Court already rejected this argument when granting the motion to
16 continue, nevertheless, it is wholly without merit. If discovery is re-opened, there will be
17 two, short, depositions. Defendant had to have prepared for trial in the abundance of
18 caution in case its motions in limine would be denied. There would be no additional work,
19 only work that would have otherwise been done had Defendant met and conferred and
20 allowed the depositions to take place. There is no prejudice for being forced to do what
21 you would have already done.
22 D. CCP Sections 1008 And 473 Are Available For The Court As Alternatives.
23 In a hypocritical proposition, Defendant suggests that the motion be brought under
24 1008 or 473, but then suggests that these statutes do not apply. This Court has inherent
25 authority to control its cases. Be that under the statutes allowing discovery to be re-
26 opened, or, for former orders to be modified and/or set aside entirely. Defendant is merely
27 trying to ensure its ability to win by a technicality due to its taking advantage of an
28
REPLY
3
1 unrepresented party.
2 E. Defendant’s Wholly Failed To Meet And Confer Forcing Plaintiff To File The
3 Motion That Would, If Denied, Cause Her To Effectively Lose The Case.
4 Sanctions Are Entirely Unwarranted As The Motion Is Not A Misuse Of The
5 Discovery Process And Is Her Only Hope At Having A Day In Court.
6 This motion could have entirely been disposed of if Defendant met and conferred
7 at all, it did not. There was no compromise even, just a flat-out rejection of any type of
8 cooperation. Plaintiff has no choice but to file the motion and attempt to salvage her case.
9 Even if the motion is denied, Plaintiff should not be sanctioned.
10 The issue of sanctions has been discussed in detail at the appellate level and they
11 are not to be awarded lightly. (Argaman v. Ratan (1999) 73 Cal.App.4th 1173, 1176 –
12 (sanctions only warranted for misuse of the discovery process).)
13 In fact, the 1st District Court of Appeals has provided a general rule. In
14 Diepenbrock v. Brown (2012) 208 Cal.App.4th 743, a unanimous decision upheld by the
15 California Supreme Court, the general rule was stated as follows: “[W]hile the court may
16 properly have rejected [the losing party’s] contention concerning the scope of the
17 exception to the [privilege raised], the conflicting legal authority on an unsettled issue
18 provided substantial justification for appellants' position, negating the basis” for the
19 imposition of sanctions. (Id. At 749 – brackets generalized.)
20 The Diepenbrock case is similar to this case. In that case, the party asserted a
21 privilege. The parties met and conferred on that privilege and, given the unavailability of
22 case law or statutes that directly apply to that scenario, the parties were unable to resolve
23 the issue informally. The party asserting the privilege filed a motion. It was denied and
24 sanctions were imposed. The 1st District then overturned the sanctions. It held that:
25 “[T]here was substantial justification for the opposition and therefore that the sanctions
26 were wrongly imposed.” (Id. At 745.) In this case, Defendant wholly failed to meet and
27 confer at all.
28
REPLY
4
1 The issue comes down to whether Plaintiff has “substantial justification” in bringing
2 the motion. Diepenbrock explains:
3 “In Doe v. U.S. Swimming, Inc. (2011) 200 Cal.App.4th 1424, 1434, the
court held that "substantial justification" as used in the above statutes
4 means a justification that is "well grounded in both law and fact." (See Union
Mut. Life Ins. Co. v. Superior Court (1978) 80 Cal.App.3d 1, 15 [Party
5 seeking discovery sanctions "must demonstrate that the opposing party's
objections were insubstantial, were interposed for purposes of delay or
6 harassment, or were otherwise unreasonable."]; Weil & Brown, Cal.
Practice Guide: Civil Procedure Before Trial, supra, ¶ 8:846, p. 8E-152 (rev.
7 # 1, 2012) ["to avoid sanctions the deponent must show `substantial
justification' for his or her refusal to answer the deposition question; e.g.,
8 reasonable grounds to believe the objection was valid when made and that
opposition to the motion to compel therefore was justified"].)
9
(Id. At 747.)
10
11 The unanimous panel goes on to state, “Veen argues that even if his argument
12 was ultimately rejected by the court, sanctions were improper because the law regarding
13 this issue is unsettled and his argument was based on available authority, so that
14 plaintiff's position was not unreasonable. We agree.” (Id. At 747-748.)
15 Here, Plaintiff is substantially justified in filing the motion because her arguments
16 are supported by existing law.
17 This is not the only authority on point. In Foothill Properties v. Lyon/Copley Corona
18 Associates (1996) 46 Cal.App.4th 1542, the 4th District Court of Appeal reversed the trial
19 court’s award for monetary discovery sanctions when it found that the sanctioned party
20 had acted with substantial justification in opposing the discovery request at issue.
21 “Substantial justification” includes circumstances where a party has reasonable grounds
22 to bring or oppose a discovery motion. (Id. At 1557.) There, plaintiff propounded discovery
23 for defendant’s budget information. Defendant offered to produce the documents if
24 plaintiff would maintain them confidentially. When plaintiff refused, defendant sought a
25 protective order. Plaintiff responded to the motion for a protective order with a motion to
26 compel.
27 The appellate court in Foothill Properties reasoned that defendant’s refusal to
28
REPLY
5
1 produce the documents pending resolution of its motion for a protective order was
2 substantially justified and held that defendant had “substantial justification, as a matter of
3 law, for withholding” the documents. (Id. at 1557.) In reversing the lower court’s sanction
4 award, the court held that it was “axiomatic the court ‘exceeded the bounds of reason’
5 when it imposed the sanctions, thus abusing its discretion.” (Id.) The Foothill Properties
6 court overturned the sanction award even though defendant lost the motion to compel.
7 To determine that sanctions are appropriate, the Court must find that the
8 “objections were insubstantial, were interposed for purposes of delay or harassment, or
9 were otherwise unreasonable.” (Diepenbrock, supra, at 747.) The Court must also find
10 that Defendant engaged in a “reasonable and good faith attempt to resolve informally.”
11 (see generally, CCP § 2025.480(b)) Defendant was set on its way or the highway. Plaintiff
12 and her counsel tried. Nevertheless, Plaintiff and her counsel did not seek sanctions with
13 this motion. This, and the mere fact that the Parties had such an extensive dialogue,
14 refutes any contention that the motion was anything but justified.
15 Affirming such an extreme sanction merely for advocating a persuasive legal
16 argument would not serve the purpose of the discovery sanctions statutes.
17 Attorneys have a duty to advocate zealously on behalf of their clients and should
18 be able to do so within the bounds of ethics without the looming threat of monetary
19 sanctions aimed at counsel themselves and their clients. “Even if a legal proposition is
20 untenable, counsel may properly urge it in good faith; he may do so even though he may
21 not expect to be successful, provided of course, that he does not resort to deceit or to
22 willful obstruction of the orderly processes.” (Smith v. Superior Court (1968) 68 Cal.2d
23 547, 560, quoting Gallagher v. Municipal Court (1948) 31 Cal.2d 784, 788.) Sanctioning
24 attorneys for advocating debatable legal positions would chill attorney advocacy and
25 counsel’s ability to fulfill their professional responsibilities to their clients.
26 Discovery sanctions are “not to provide a weapon for punishment,” but rather to
27 “prevent abuse of the discovery process and correct the problem presented.” (Parker v.
28
REPLY
6
1 Wolters Kluwer U.S., Inc. (2007) 149 Cal.App.4th 285.) Constitutional due process
2 requires that sanctions awards go no further than necessary to accomplish the purpose
3 of discovery. (Newland v. Superior Court (1995) 40 Cal.App.4th 608.) It is not good policy
4 to “correct” advocacy of positions supported by existing law. Further, the due process
5 requirement of fair notice cannot be satisfied if attorneys have no advance warning that
6 their conduct is of the type that should be “corrected.”
7 Monetary sanctions should serve a greater purpose then rewarding the winner of
8 a “roll of the dice.” The motion is justified, and sanctions should not be imposed.
9 Additionally, the time claimed to have been spent is patently unreasonable. The
10 opposition meaningfully discusses very few cases, to claim that it took apparently 50
11 hours to prepare is utterly absurd. In fact, Defense counsel declares that it took nearly the
12 same time to prepare the second opposition (only 2 page difference) that it took to prepare
13 the original. The declaration does not contain any detailed time tracking and Defense
14 counsel declares, without personal knowledge, that another attorney at the firm spent 34
15 hours. At a minimum, only time that can be supported by Defense counsel should be
16 considered.
17 CONCLUSION
18 Based on the foregoing, Plaintiff respectfully requests that the Court grant the
19 motion to reopen discovery. No party will suffer prejudice and Plaintiff will lose her case
20 if not.
21
22 DATED: February 9, 2023 Respectfully submitted,
23
FRY LAW CORPORATION
24
25
26 By:_________________________________
Christopher J. Fry, Esq.
27 Attorneys for Plaintiff
28
REPLY
7
1 PROOF OF SERVICE
CALIFORNIA SUPERIOR COURT
2
3 I am employed in the County of Sacramento, State of California. I am over the age
of 18 and not a party to the within action; my business address is: 980 9th Street, 16th
4 Floor, Sacramento, California 95814. On February 9, 2023, I served the foregoing
document(s) described as:
5
REPLY IN SUPPORT OF MOTION TO REOPEN DISCOVERY
6
7 On all interested parties in this action addressed as follows:
8 Defendant Placer Valley Sports Complex, Inc.:
9 Sinclair Wilson, et al.
Robert F. Sinclair, Esq.
10 2390 Professional Drive
Roseville, CA 95661
11 Email: rsinclair@swbclaw.com
12 [X] BY PRIORITY MAIL AND ELECTRONIC TRANSMISSION: I caused such
documents to be mailed by priority mail and emailed to the email address above. I did
13
not receive, within a reasonable time after the transmission, any electronic message or
14 other indication that the transmission was unsuccessful.
15 I declare that I am employed in the office of a member of the bar of this court at
whose direction the service was made. I declare under penalty of perjury under the laws
16 of California that the above is true and correct. Executed on February 9, 2023, at
17 Sacramento, California.
18
19 ____________________
20 Christopher J. Fry
21
22
23
24
25
26
27
28
REPLY
8
Preview
1 Christopher J. Fry, Esq. (SBN: 298874) Email: cfry@frylawcorp.com 2 Kristine Du, Esq. (SBN: 338095) Email: kdu@frylawcorp.com 3 FRY LAW CORPORATION 980 9th Street, 16th Floor 4 Sacramento, California 95814 Telephone: (916) 291-0700 5 Facsimile: (916) 848-0256 6 Attorneys for Plaintiff, SHERRY LARSEN and dba CALIFORNIA STATE ENTERPRISES 7 8 SUPERIOR COURT FOR THE STATE OF CALIFORNIA 9 IN AND FOR THE COUNTY OF PLACER 10 11 12 SHERRY LARSEN, individually and dba CASE NO.: S-CV-0045659 CALIFORNIA STATE ENTERPRISES, 13 REPLY IN SUPPORT OF MOTION TO Plaintiff, REOPEN DISCOVERY 14 vs. Date: February 14, 2023 15 PLACER VALLEY SPORTS COMPLEX, Time: 8:30 a.m. 16 INC. dba @the Grounds, a California Corporation; and DOES 1-10, inclusive, Dept.: 31 17 Defendants. Trial: April 3, 2023 18 Action Filed: October 2, 2020 19 20 21 22 23 24 25 26 27 28 REPLY 1 Plaintiff, SHERRY LARSEN, by and through counsel, hereby respectfully submits 2 this reply in support of the motion to reopen discovery as set forth below: 3 A large portion of Defendant’s opposition is spent arguing that this Court, with 4 virtually unlimited authority to make, change, modify or set aside its own orders, is barred 5 from granting the motion to re-open. It makes this argument based on prior trial setting 6 orders. 7 The problem with this argument is the former orders did not consider the possibility 8 that the actual trial date would be continued. It is obviously quite common for trials and 9 related deadlines to be pushed out; the former orders do not specifically state that this 10 cannot be the case. Additionally, the argument that a motion to reconsider, modify, etc. 11 under CCP section 1003 and 1008, is necessary is nonsensical as set forth more fully 12 below. 13 Defendant then argues that Plaintiff has not acted in good faith and though entirely 14 ignoring Plaintiff’s many attempts to meet and confer, produce witnesses, etc., has the 15 audacity to request sanctions. 16 The additional arguments should be wholly disregarded. 17 Based on the foregoing, the motion should be granted and Plaintiff should be 18 allowed to have her day in Court, with all appropriate witnesses. 19 ARGUMENT 20 A. The Typo In The Notice Is Not Grounds To Deny Plaintiff A Day In Court. 21 Defendant contends that because a typo carried over from a prior motion, the 22 notice is defective. Clearly Defendant has an ample understanding of the “nature of the 23 order being sought and the grounds for issuance of that order” as required by CRC as it 24 has prepared a 20 page opposition and even admits that it understands the arguments 25 and requests. The argument should be wholly disregarded. 26 // 27 // 28 REPLY 1 1 B. The Court Has Inherent Authority To Enter Orders Of Which Plaintiff Is 2 Requesting. 3 This Court has the power to do virtually anything in the furtherance of justice. Code 4 of Civil Procedure provides significant latitude to Courts when managing their own 5 dockets. (To name a few, CCP section 473 (unlimited authority to set aside judgments or 6 orders), 1008 (authority to amend, modify or reconsider prior rulings). (See generally, 7 Cruz v. Fagor America, Inc. (2006) 146 Cal.App.4th 488; Le Francois v. Goel (2005) 35 8 Cal.4th 1094.) However, Defendant makes the argument that CCP section 2024, et seq., 9 does not allow the Court to re-open the discovery deadlines and instead, improperly 10 argues that a motion to reconsider orders from nearly a year ago is the appropriate 11 method. The argument is nonsensical. 12 First and foremost, the orders that were made nearly a year ago did not anticipate 13 a trial continuance. As with every case that gets set for trial, a trial setting order is issued, 14 the trial related deadlines are ordered, and it is ordinarily required to file a motion to get 15 trial continued and deadlines pushed out. This does not require a motion to reconsider 16 the trial setting orders, it requires a motion to continue the trial and related deadlines. This 17 was done, and the motion to continue was granted. Now, the appropriate remedy is a 18 motion to re-open. 19 Second, as for Defendant’s contention that this motion is not the appropriate 20 motion, the statutes for a motion for reconsideration (CCP section 1008), cannot be met. 21 First and foremost, the motion is to be brought ten (10) days after the order. This would 22 mean a litigant would have to know within ten (10) days of trial setting that a continuance 23 is necessary. Next, reconsideration is only appropriate when the judge failed to consider 24 existing facts or there are new facts or authorities. This is not applicable here. The fact 25 that the Court deleted language about good cause is irrelevant. In the motion to continue, 26 the Court found good cause to push out trial dates and did so. The former orders were 27 superseded by the Court’s order continuing the trial. The only issue that is now left is the 28 REPLY 2 1 issue of whether Plaintiff will be given an opportunity to produce herself and her expert to 2 avoid a terminal motion in limine. 3 The Court could not have known that either party would request a continuance and 4 could not have meant the order to mean that discovery could never be re-opened. 5 C. Plaintiff Has Shown Good Cause To Reopen Discovery To Avoid A Technical 6 Loss; There Is No Prejudice For Having To Prepare For Trial. 7 Defendant seemingly ignores Plaintiff’s declaration filed in support of this motion. 8 It is clear, Plaintiff was not available for her second session of testimony in a deposition, 9 her expert, being in Southern California, was having difficulty with the travel. When 10 Plaintiff attempted to meet and confer on this issue, just as with this motion, Defendant 11 refused to offer any solutions and ultimately failed to take the depositions. No motion to 12 compel was filed or heard. Instead, Defendant used this to file motions in limine to bar 13 Plaintiff and her expert from testifying. 14 Defendant also contends that it will suffer prejudice if it is forced to re-prepare for 15 trial. However, the Court already rejected this argument when granting the motion to 16 continue, nevertheless, it is wholly without merit. If discovery is re-opened, there will be 17 two, short, depositions. Defendant had to have prepared for trial in the abundance of 18 caution in case its motions in limine would be denied. There would be no additional work, 19 only work that would have otherwise been done had Defendant met and conferred and 20 allowed the depositions to take place. There is no prejudice for being forced to do what 21 you would have already done. 22 D. CCP Sections 1008 And 473 Are Available For The Court As Alternatives. 23 In a hypocritical proposition, Defendant suggests that the motion be brought under 24 1008 or 473, but then suggests that these statutes do not apply. This Court has inherent 25 authority to control its cases. Be that under the statutes allowing discovery to be re- 26 opened, or, for former orders to be modified and/or set aside entirely. Defendant is merely 27 trying to ensure its ability to win by a technicality due to its taking advantage of an 28 REPLY 3 1 unrepresented party. 2 E. Defendant’s Wholly Failed To Meet And Confer Forcing Plaintiff To File The 3 Motion That Would, If Denied, Cause Her To Effectively Lose The Case. 4 Sanctions Are Entirely Unwarranted As The Motion Is Not A Misuse Of The 5 Discovery Process And Is Her Only Hope At Having A Day In Court. 6 This motion could have entirely been disposed of if Defendant met and conferred 7 at all, it did not. There was no compromise even, just a flat-out rejection of any type of 8 cooperation. Plaintiff has no choice but to file the motion and attempt to salvage her case. 9 Even if the motion is denied, Plaintiff should not be sanctioned. 10 The issue of sanctions has been discussed in detail at the appellate level and they 11 are not to be awarded lightly. (Argaman v. Ratan (1999) 73 Cal.App.4th 1173, 1176 – 12 (sanctions only warranted for misuse of the discovery process).) 13 In fact, the 1st District Court of Appeals has provided a general rule. In 14 Diepenbrock v. Brown (2012) 208 Cal.App.4th 743, a unanimous decision upheld by the 15 California Supreme Court, the general rule was stated as follows: “[W]hile the court may 16 properly have rejected [the losing party’s] contention concerning the scope of the 17 exception to the [privilege raised], the conflicting legal authority on an unsettled issue 18 provided substantial justification for appellants' position, negating the basis” for the 19 imposition of sanctions. (Id. At 749 – brackets generalized.) 20 The Diepenbrock case is similar to this case. In that case, the party asserted a 21 privilege. The parties met and conferred on that privilege and, given the unavailability of 22 case law or statutes that directly apply to that scenario, the parties were unable to resolve 23 the issue informally. The party asserting the privilege filed a motion. It was denied and 24 sanctions were imposed. The 1st District then overturned the sanctions. It held that: 25 “[T]here was substantial justification for the opposition and therefore that the sanctions 26 were wrongly imposed.” (Id. At 745.) In this case, Defendant wholly failed to meet and 27 confer at all. 28 REPLY 4 1 The issue comes down to whether Plaintiff has “substantial justification” in bringing 2 the motion. Diepenbrock explains: 3 “In Doe v. U.S. Swimming, Inc. (2011) 200 Cal.App.4th 1424, 1434, the court held that "substantial justification" as used in the above statutes 4 means a justification that is "well grounded in both law and fact." (See Union Mut. Life Ins. Co. v. Superior Court (1978) 80 Cal.App.3d 1, 15 [Party 5 seeking discovery sanctions "must demonstrate that the opposing party's objections were insubstantial, were interposed for purposes of delay or 6 harassment, or were otherwise unreasonable."]; Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial, supra, ¶ 8:846, p. 8E-152 (rev. 7 # 1, 2012) ["to avoid sanctions the deponent must show `substantial justification' for his or her refusal to answer the deposition question; e.g., 8 reasonable grounds to believe the objection was valid when made and that opposition to the motion to compel therefore was justified"].) 9 (Id. At 747.) 10 11 The unanimous panel goes on to state, “Veen argues that even if his argument 12 was ultimately rejected by the court, sanctions were improper because the law regarding 13 this issue is unsettled and his argument was based on available authority, so that 14 plaintiff's position was not unreasonable. We agree.” (Id. At 747-748.) 15 Here, Plaintiff is substantially justified in filing the motion because her arguments 16 are supported by existing law. 17 This is not the only authority on point. In Foothill Properties v. Lyon/Copley Corona 18 Associates (1996) 46 Cal.App.4th 1542, the 4th District Court of Appeal reversed the trial 19 court’s award for monetary discovery sanctions when it found that the sanctioned party 20 had acted with substantial justification in opposing the discovery request at issue. 21 “Substantial justification” includes circumstances where a party has reasonable grounds 22 to bring or oppose a discovery motion. (Id. At 1557.) There, plaintiff propounded discovery 23 for defendant’s budget information. Defendant offered to produce the documents if 24 plaintiff would maintain them confidentially. When plaintiff refused, defendant sought a 25 protective order. Plaintiff responded to the motion for a protective order with a motion to 26 compel. 27 The appellate court in Foothill Properties reasoned that defendant’s refusal to 28 REPLY 5 1 produce the documents pending resolution of its motion for a protective order was 2 substantially justified and held that defendant had “substantial justification, as a matter of 3 law, for withholding” the documents. (Id. at 1557.) In reversing the lower court’s sanction 4 award, the court held that it was “axiomatic the court ‘exceeded the bounds of reason’ 5 when it imposed the sanctions, thus abusing its discretion.” (Id.) The Foothill Properties 6 court overturned the sanction award even though defendant lost the motion to compel. 7 To determine that sanctions are appropriate, the Court must find that the 8 “objections were insubstantial, were interposed for purposes of delay or harassment, or 9 were otherwise unreasonable.” (Diepenbrock, supra, at 747.) The Court must also find 10 that Defendant engaged in a “reasonable and good faith attempt to resolve informally.” 11 (see generally, CCP § 2025.480(b)) Defendant was set on its way or the highway. Plaintiff 12 and her counsel tried. Nevertheless, Plaintiff and her counsel did not seek sanctions with 13 this motion. This, and the mere fact that the Parties had such an extensive dialogue, 14 refutes any contention that the motion was anything but justified. 15 Affirming such an extreme sanction merely for advocating a persuasive legal 16 argument would not serve the purpose of the discovery sanctions statutes. 17 Attorneys have a duty to advocate zealously on behalf of their clients and should 18 be able to do so within the bounds of ethics without the looming threat of monetary 19 sanctions aimed at counsel themselves and their clients. “Even if a legal proposition is 20 untenable, counsel may properly urge it in good faith; he may do so even though he may 21 not expect to be successful, provided of course, that he does not resort to deceit or to 22 willful obstruction of the orderly processes.” (Smith v. Superior Court (1968) 68 Cal.2d 23 547, 560, quoting Gallagher v. Municipal Court (1948) 31 Cal.2d 784, 788.) Sanctioning 24 attorneys for advocating debatable legal positions would chill attorney advocacy and 25 counsel’s ability to fulfill their professional responsibilities to their clients. 26 Discovery sanctions are “not to provide a weapon for punishment,” but rather to 27 “prevent abuse of the discovery process and correct the problem presented.” (Parker v. 28 REPLY 6 1 Wolters Kluwer U.S., Inc. (2007) 149 Cal.App.4th 285.) Constitutional due process 2 requires that sanctions awards go no further than necessary to accomplish the purpose 3 of discovery. (Newland v. Superior Court (1995) 40 Cal.App.4th 608.) It is not good policy 4 to “correct” advocacy of positions supported by existing law. Further, the due process 5 requirement of fair notice cannot be satisfied if attorneys have no advance warning that 6 their conduct is of the type that should be “corrected.” 7 Monetary sanctions should serve a greater purpose then rewarding the winner of 8 a “roll of the dice.” The motion is justified, and sanctions should not be imposed. 9 Additionally, the time claimed to have been spent is patently unreasonable. The 10 opposition meaningfully discusses very few cases, to claim that it took apparently 50 11 hours to prepare is utterly absurd. In fact, Defense counsel declares that it took nearly the 12 same time to prepare the second opposition (only 2 page difference) that it took to prepare 13 the original. The declaration does not contain any detailed time tracking and Defense 14 counsel declares, without personal knowledge, that another attorney at the firm spent 34 15 hours. At a minimum, only time that can be supported by Defense counsel should be 16 considered. 17 CONCLUSION 18 Based on the foregoing, Plaintiff respectfully requests that the Court grant the 19 motion to reopen discovery. No party will suffer prejudice and Plaintiff will lose her case 20 if not. 21 22 DATED: February 9, 2023 Respectfully submitted, 23 FRY LAW CORPORATION 24 25 26 By:_________________________________ Christopher J. Fry, Esq. 27 Attorneys for Plaintiff 28 REPLY 7 1 PROOF OF SERVICE CALIFORNIA SUPERIOR COURT 2 3 I am employed in the County of Sacramento, State of California. I am over the age of 18 and not a party to the within action; my business address is: 980 9th Street, 16th 4 Floor, Sacramento, California 95814. On February 9, 2023, I served the foregoing document(s) described as: 5 REPLY IN SUPPORT OF MOTION TO REOPEN DISCOVERY 6 7 On all interested parties in this action addressed as follows: 8 Defendant Placer Valley Sports Complex, Inc.: 9 Sinclair Wilson, et al. Robert F. Sinclair, Esq. 10 2390 Professional Drive Roseville, CA 95661 11 Email: rsinclair@swbclaw.com 12 [X] BY PRIORITY MAIL AND ELECTRONIC TRANSMISSION: I caused such documents to be mailed by priority mail and emailed to the email address above. I did 13 not receive, within a reasonable time after the transmission, any electronic message or 14 other indication that the transmission was unsuccessful. 15 I declare that I am employed in the office of a member of the bar of this court at whose direction the service was made. I declare under penalty of perjury under the laws 16 of California that the above is true and correct. Executed on February 9, 2023, at 17 Sacramento, California. 18 19 ____________________ 20 Christopher J. Fry 21 22 23 24 25 26 27 28 REPLY 8