Preview
1 Collin J. Vierra (State Bar No. 322720)
EIMER STAHL LLP
2 99 Almaden Blvd., Suite 600
San Jose, CA 95113-1605
3 Telephone: (408) 889-1668
Email: cvierra@eimerstahl.com
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Attorney for Plaintiffs
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SUPERIOR COURT OF THE STATE OF CALIFORNIA
7 COUNTY OF SAN MATEO
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9 Robert Arntsen; Mary Lee; Arntsen Family Case No. 22-CIV-01148
Partnership, LP; Brian Christopher Dunn Consolidated with Case No. 23-CIV-01099
10 Custodianship, John Ho, and Quanyu Huang;
11 Date: February 23, 2024
Plaintiffs, Time: 9:00 a.m.
12 v. Dept. 24
13 David M. Bragg; Silicon Valley Real Ventures Hon. Jeffrey Finigan
LLC; SVRV 385 Moore, LLC; SVRV 387
14 Moore, LLC; Gregory J. Davis; Kevin Wolfe; REPLY IN SUPPORT OF PLAINTIFFS’
15 Jason Justesen; Paramont Woodside, LLC; MOTION FOR SANCTIONS AGAINST
Paramont Capital, LLC; Monks Family Trust; DEFENDANTS DAVID M. BRAGG AND
16 TEH Capital LLC; Caproc III, LLC; WZ SILICON VALLEY REAL VENTURES,
Partners, LLC; McClan Trust; Wild Rose LLC
17 Irrevocable Trust; Black Horse Holdings,
LLC; Phil Stoker; Diane Stoker; Scott O’Neil;
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Dale Huish; and DOES 1–20,
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Defendants.
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REPLY IN SUPPORT OF MOTION FOR SANCTIONS
1 TABLE OF CONTENTS
2 TABLE OF AUTHORITIES .......................................................................................................... 3
3 INTRODUCTION .......................................................................................................................... 4
4 REASONS WHY THE COURT SHOULD IMPOSE A TERMINATING SANCTION.............. 5
5 I. Bragg Still Has Not Paid the Court’s Monetary Sanction. .................................................... 5
6 II. Bragg Still Has Not Fulfilled His Document Production Obligations. .................................. 6
7 III. Bragg Still Has Not Fulfilled His Written Discovery Obligations................................... 9
8 IV. Bragg’s Statements About the Parties’ Meet and Confer Efforts are False. .................... 9
9 V. Bragg Did Not Even Respond to Plaintiffs’ Detailed Separate Statement of Discovery
Deficiencies.......................................................................................................................... 10
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VI. Bragg’s Statements About Plaintiffs’ Discovery Responses are False. ......................... 11
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CONCLUSION ............................................................................................................................. 12
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REPLY IN SUPPORT OF MOTION FOR SANCTIONS
1 TABLE OF AUTHORITIES
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Page(s)
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Cases
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5 City of L.A. v. PricewaterhouseCoopers, LLC,
(2022) 84 Cal.App.5th 466 ....................................................................................................... 11
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Dep’t of Forestry & Fire Prot. v. Howell,
7 (2017) 18 Cal.App.5th 154 ................................................................................................... 4, 11
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DuPont Merck Pharm. Co. v. Super. Ct.
9 (2000) 78 Cal.App.4th 562 ....................................................................................................... 11
10 Ellis v. Toshiba Am. Info. Sys., Inc.,
(2013) 218 Cal.App.4th 853 ..................................................................................................... 11
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Kwan Software Eng’g, Inc. v. Hennings,
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(2020) 58 Cal. App. 5th 57 ......................................................................................................... 4
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People v. Bouzas
14 (1991) 53 Cal.3d 467 ................................................................................................................ 11
15 Stephen Slesinger, Inc. v. Walt Disney Co.,
(2007) 155 Cal.App.4th 736 ..................................................................................................... 11
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17 Statutes
18 Code Civ. Proc. § 2031.280 ....................................................................................................... 8, 9
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REPLY IN SUPPORT OF MOTION FOR SANCTIONS
INTRODUCTION
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After a year-and-a-half of Bragg’s egregious abuses of the discovery process—including
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intentionally spoliating all of his text messages, withholding thousands of responsive documents
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from Plaintiffs and his own counsel, instructing his counsel to refuse Plaintiffs’ meet-and-confer
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calls, making repeated false statements to Plaintiffs and the Court, violating multiple IDC orders,
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and refusing outright to respond to many discovery requests—this Court sanctioned Bragg $15,000
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on September 15, 2023, and ordered him to promptly provide further responses. At that time, the
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Court denied Plaintiffs’ request for terminating sanctions without prejudice because “[a]lthough
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the Court agree[d] that discovery misconduct ha[d] occurred, [Bragg] ha[d] not [yet] failed to
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comply with previous [Court] orders compelling discovery” (although by his own admission,
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Bragg had already failed to comply with several orders of the IDC Commissioner). But Bragg has
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now crossed that bridge as well by failing to comply with express orders of this Court by the time
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required. And he remains in violation of those orders five months later. Bragg admits that he has
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not complied the Court’s September 15, 2023 order—with respect to the monetary sanction, with
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respect to Plaintiffs’ document requests, and with respect to Plaintiffs’ written discovery requests.
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This case has now been pending for just under two years. Bragg’s discovery responses are twenty
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months overdue. And by the time the Court hears this motion, the parties will already have
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submitted their pre-trial filings, with trial set to begin in two weeks.
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Bragg’s opposition brief only makes things worse because not only does it fail to provide
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any plausible justification for Bragg’s discovery misconduct, but it is also rife with false
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statements, which independently merits terminating sanctions. (Dep’t of Forestry & Fire Prot. v.
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Howell (2017) 18 Cal.App.5th 154, 191; see also Kwan Software Eng’g, Inc. v. Hennings (2020)
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58 Cal. App. 5th 57, 74.) It would make a mockery of the judicial process to allow Bragg to
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participate in a trial on the merits when, for two years running, he has committed virtually every
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possible misuse of the discovery process, thumbed his nose at the Court, and refused to correct his
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behavior even after being sanctioned $15,000 (which, five months later, he still has not paid in
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full). Enough is enough. This Court should award terminating sanctions, strike Bragg’s answer,
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and grant a default judgment to Plaintiffs.
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REASONS WHY THE COURT SHOULD IMPOSE A TERMINATING SANCTION
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Several of Bragg’s discovery violations independently merit terminating sanctions. In
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combination, it would be a miscarriage of justice not to impose such a sanction.
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I. Bragg Still Has Not Paid the Court’s Monetary Sanction.
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Bragg’s $15,000 was due on October 5, 2023. Today, as he admits, he is still in arrears.
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(Opp. 3 n.4.) Contrary to Bragg’s assertion made under penalty of perjury, that is not for lack of
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ability to pay. (Vierra Reply Decl. ¶ 3.) Bragg makes over $350,000 per year—not including his
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income from his real estate projects—putting him in the top 2% of earners in California. (Id.)
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Bragg spends more than $18,000 per month—up from the “only” $15,500 per month he claimed
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he spent when he filed for bankruptcy in 2022 (doubtless targeted precisely so that he could assert
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he could not afford the sanction)—including nearly $700 on his boat, more than $360 on his jet
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skis, and nearly $2,000 on his trucks, among other vehicular expenditures. (Id., Exs. C, H; In re
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David Matthew Bragg, No. 22-22700, Dkt. 1.) None of these expenditures is necessary; they are
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luxuries. On top of this, on October 31, 2023, Bragg sold a vintage Cadillac—one of his many
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high-end vehicles—for $38,500 (Opp. 10). But instead of using those funds to pay Plaintiffs’
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sanction, he forced Plaintiffs to undertake a burdensome wage garnishment effort, and then
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improperly interfered with that effort on multiple occasions by improperly instructing his employer
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not to comply with the garnishment order. (Id. ¶ 4 & Ex. B.) Moreover, although the Cadillac was
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plainly worth at least $38,500, Bragg swore at least five separate times under penalty of perjury
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that this vehicle was worth only $7,500—including as recently as December 8, 2023. (Vierra Reply
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Decl. ¶ 6; In re David Matthew Bragg, No. 22-22700, Dkts. 1, 31–34, 65–66, 85.) For this and
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other reasons, on January 2, 2024, the bankruptcy court stated in writing that Bragg “lacks all
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credibility” and “is not at all credible.” (Vierra Decl., Ex. 2.) And Bragg’s insinuation that most of
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the $38,500 was used to pay off a loan to his brother, Rich Bragg, is also demonstrably false—
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Rich Bragg confirmed in writing that he returned over $38,240 of the $38,500 to Bragg on in early
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January 2024. (Vierra Reply Decl. ¶ 6 & Exs. D–E.) The truth is that Bragg kept most of this
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money for himself, rather than satisfy the sanction.
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In addition, Bragg’s claim of exemption—filed under penalty of perjury—flatly contradicts
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1 his bankruptcy petitions—also filed under penalty of perjury. (Compare id, Ex. H, with In re David
2 Matthew Bragg, No. 22-22700, Dkts. 1, 31–34, 65–66, 85 [showing myriad contradictory
3 statements as to income, mortgage payments, assets owned, monthly expenditures on things like
4 clothing and laundry, and more].) As is his wont, Bragg makes false statements at all turns to avoid
5 paying his debts.
6 Notably, none of Bragg’s assertions in his opposition brief is supported by a declaration
7 from him—an omission to which the bankruptcy court objected previously. (In re David Matthew
8 Bragg, No. 22-22700 (Bankr. E.D. Cal. Sept. 14, 2023), Dkt. 58.) Indeed, when Bragg previously
9 sought to settle with the bankruptcy trustee, the bankruptcy court denied the proposed settlement
10 because Bragg’s bankruptcy schedules—which he submitted under penalty of perjury—were rife
11 with false statements, “problem[s],” “conflicts,” and “inconsistencies” that raised serious
12 “concerns.” (Id.) Thus, the bankruptcy judge stated on the record that he “want[ed] a declaration
13 from [Bragg]” correcting these inconsistencies. (Id.)
14 Bragg’s opposition also brazenly misleads this Court as to his penchant for high-class
15 indulgences. There was no reason Bragg had to take a vacation to Paris with his daughter in
16 September 2023 rather than pay down his debt to Plaintiffs. Bragg and his children appear to have
17 indulged in other expensive activities in recent months rather than pay his sanction—including a
18 recent snowboarding trip in January 2024. (Id. ¶ 7.) This does not even include Bragg’s and his
19 non-working children’s frequent outings on his boat, jet skis, and motorcycles, or his trips to other
20 exotic locations like Greece, Versailles, and Coronado Island. (Id.) And in addition to his vintage
21 Cadillac, Bragg has unlawfully sold numerous motorcycles belonging to the bankruptcy estate and
22 used the proceeds to purchase new motorcycles titled in his son’s name. (Id. ¶ 8. & Ex. F.)
23 Put simply, Bragg cannot be trusted to comply with the Court’s orders or to make truthful
24 statements to the Court, even under penalty of perjury. The Court should thus take Bragg’s
25 protestations that he has complied with his discovery obligations with a shaker worth of salt.
26 II. Bragg Still Has Not Fulfilled His Document Production Obligations.
27 Bragg is still withholding countless responsive documents from Plaintiffs—totaling at least
28 hundreds, and likely thousands, of documents. As Plaintiffs have explained previously, Bragg
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1 mostly used his personal Google account to conduct SVRV business, even though for over a year,
2 he falsely claimed that he never used his personal account for SVRV business. (MPA ISO Mot. to
3 Compel (June 12, 2023), at 10.) Bragg was forced to admit the falsity of that statement when
4 Plaintiffs confronted him—and presented the Court—with uncontroverted evidence of this
5 withholding. (Id.) Bragg has never granted Plaintiffs access to this account, even though Bragg
6 has repeatedly falsely stated—including to the IDC Commissioner—that he already produced all
7 responsive documents from Google. (Id. at 16; Vierra Reply Decl. ¶ 9.)
8 Bragg claims that he has now run a comprehensive set of search terms and produced all
9 documents from his personal Google account. (Opp. 2–3.) That is patently false. Bragg admits that
10 he has in his possession—but is still withholding—some of the most salient documents to this
11 litigation: emails sent from Bragg’s personal Google account in which he Bcc’d the purported
12 “members” of the Moore Road LLCs. (MPA ISO Mot. for Sanctions (Jan. 22, 2024), at 6 n.3.)
13 Those emails would have hit on numerous search terms that Bragg asserts he ran—including Bob,
14 Arntsen, Martha, Mary Lee, John Ho, Jacky Huang, Woodside, Moore, and possibly others.
15 (Vierra Reply Decl. ¶ 10.) Yet Bragg still has not produced them, even though he falsely told the
16 IDC Commissioner and the Court that he already had. (Id.)
17 Plaintiffs have conducted numerous other inspections that further prove that Bragg is
18 withholding hundreds, if not thousands, of responsive documents. For example, Genesis Bank
19 produced dozens of documents and communications exchanged with Bragg that Bragg has not
20 produced. (Id. ¶ 11.) Kurtis Kludt and Lukas Leuthold also provided hundreds documents and
21 communications in Bragg’s possession, custody, and control that hit on Bragg’s purported search
22 terms that Bragg has not produced. (Id.) Even Bragg’s brother—Rich Bragg—has produced
23 numerous responsive documents that Bragg has not produced. (Id.) In fact, every party and third
24 party to date has provided documents in Bragg’s possession, custody, and control that Bragg has
25 withheld. (Id.) And Plaintiffs still lack access to myriad highly salient responsive documents that
26 are exclusively in Bragg’s possession, custody, and control. These include all attachments to emails
27 he exchanged with the Paramont Defendants, who did not retain attachments to emails as a matter
28 of policy, and all Bcc’d recipients on Bragg’s key emails, which were evidently many due to
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1 Bragg’s penchant for using the Bcc field to conceal information from certain investors. (Id. ¶¶ 10,
2 12.) Notably, Consilio did not appear for the IDC or submit a declaration in support of Bragg’s
3 opposition brief, as the evidence definitively indicates that either (a) Consilio did not run the search
4 terms Bragg claims were run, (b) Bragg spoliated responsive documents before Consilio was able
5 to search his account, and/or (c) Bragg selectively withheld responsive documents after Consilio
6 identified them. (MPA ISO Mot. for Sanctions (Jan. 22, 2024), at 10 n.5.)
7 Bragg also falsely claims that Plaintiffs consented to his proposed search terms (which he
8 did not even run). (Opp. 5.) In fact, Plaintiffs have maintained since September 2022 that the search
9 terms proposed by Bragg were inadequate. (MPA ISO Mot. to Compel (June 12, 2023), at 10 n.4.)
10 Instead, Bragg’s Exhibit 1 flagrantly and intentionally misrepresents the search parameters that
11 Plaintiffs proposed in September 2022, as Plaintiffs have repeatedly informed Bragg, the IDC
12 Commissioner, and this Court. (Id.; compare Vierra Reply Decl., Ex. G, with RVS Decl., Ex. 1.)
13 That has not stopped Bragg from repeating this false assertion.
14 Bragg’s complaints about the costs of production are also absurd. In summer 2022,
15 Plaintiffs offered to download, process, Bates-stamp, and produce Bragg’s documents for him at
16 their own expense if he would simply provide them access to all responsive documents. (Opp. 9;
17 Vierra Reply Decl. ¶ 14.) Bragg provided Plaintiffs access to a selective set of fewer than 200 total
18 documents, which Plaintiffs duly downloaded, processed, Bates-stamped, and produced at their
19 own expense. (Id.) Bragg then falsely asserted that his production was complete even though he
20 was continuing to withhold thousands of responsive documents. (Id.) He did not produce any
21 additional documents for more than a year until being sanctioned $15,000—and even now he (a)
22 continues to withhold hundreds if not thousands of responsive documents, and (b) made his
23 document production appear large by producing hundreds of literal junk files—undisputed
24 evidence of which Plaintiffs provided this Court in their motion—rather than all responsive
25 documents. (Id.; MPA ISO Mot. for Sanctions (Jan. 22, 2024), at 12–13.)
26 Lastly, Bragg remains the only party to this litigation who refuses to comply with Code of
27 Civil Procedure § 2031.280(a), which requires parties to identify which documents are responsive
28 to which requests. (Id. at 9.) Bragg has repeatedly promised Plaintiffs and the IDC Commissioner
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1 that he would comply with the statute—but he has refused, even after being ordered by the Court
2 to comply. (Id.) Bragg’s contention that Plaintiffs must identify which RFPs require compliance
3 under § 2031.280(a) is meritless; Plaintiffs have demanded Bragg’s complete compliance with the
4 statute, but he has refused. (Opp. 9.)
5 III. Bragg Still Has Not Fulfilled His Written Discovery Obligations.
6 Bragg also refuses to supplement his written discovery responses to comply with the
7 Court’s September 15, 2023 sanctions order, both as to the missing substantive information and as
8 to his incorporation of documents that he has failed to specifically identify—even though he falsely
9 told Plaintiffs and the IDC Commissioner that he would do so by January 29, 2024 (which was
10 already months late). (IDC Minute Order (Jan. 17, 2024) [stating that Bragg “agreed to amend”
11 his deficient written discovery responses by January 29, 2024]; Vierra Reply Decl. ¶ 15.) The IDC
12 Commissioner already expressly found Bragg to be in violation of the Court’s September 15, 2023
13 order with respect to his written discovery responses. (IDC Minute Order (Jan. 17, 2024) [stating,
14 inter alia, that Bragg’s “response is not complete” and confirming that Bragg’s “amended
15 responses did not state the specific Bates numbers” incorporated into his written discovery
16 responses, in violation of the Court’s September 15, 2023 order].) And these requests were served
17 20 months ago. Bragg does not even contest these deficiencies in his opposition. That flagrant
18 refusal to comply with the Court’s sanctions order—and false statements made to Plaintiffs and
19 the IDC Commissioner—also merits terminating sanctions.
20 IV. Bragg’s Statements About the Parties’ Meet and Confer Efforts are False.
21 Bragg’s claim that Plaintiffs failed to exhaust their meet-and-confer efforts is false and
22 independently sanctionable. Bragg’s counsel made the same accusation at the hearing on Plaintiffs’
23 prior motion for sanctions and at prior IDCs. (Vierra Reply Decl. ¶ 16.) The Court and the IDC
24 Commissioner correctly rejected this false assertion. (Id.) That is because it is Bragg, not Plaintiffs,
25 that has willfully violated the meet-and-confer requirement. Indeed, for 9 months Bragg instructed
26 his counsel both in this proceeding and in the bankruptcy proceeding not to speak with Plaintiffs’
27 counsel, with which instruction Bragg’s counsel complied in flagrant violation of state and federal
28 rules. (Id.) Eventually, the IDC Commissioner ordered Bragg and his counsel to meet and confer
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1 in Plaintiffs’ counsel’s office, but when they arrived, they failed to fulfill the promises they made
2 to Plaintiffs and the IDC Commissioner. (Id.) That was why the IDC Commissioner authorized
3 Plaintiffs’ last motion to compel and for sanctions and explicitly called Bragg’s conduct
4 sanctionable. (MPA ISO Mot. to Compel (June 12, 2023), at 7.)
5 This time, Bragg’s counsel finally agreed to a telephonic meet-and-confer, which the
6 parties held on November 16, 2023 for over 30 minutes. (Id. ¶ 17.) That meet-and-confer was also
7 attended by Consilio. (Id.) On that call, Bragg’s counsel admitted to the numerous deficiencies in
8 his discovery responses and promised that Bragg would supplement his responses soon—even
9 though his discovery responses were already a year-and-a-half overdue and delinquent under this
10 Court’s September 15, 2023 sanctions order. (Id.) In an attempt to avoid burdening this Court with
11 another sanctions motion, Plaintiffs gave Bragg repeated extensions of time to correct these
12 deficient discovery responses. (Id.) But three months later, Bragg has not supplemented a single
13 deficient discovery response even though he expressly told the IDC Commissioner that he would
14 correct his discovery deficiencies by January 29, 2024. (Id.; IDC Minute Order (Jan. 17, 2024).)
15 Bragg also said that Consilio would attend the IDC—but Consilio did not. (MPA ISO Mot. for
16 Sanctions (Jan. 22, 2024), at 10 n.5) And this follows on the heels of the numerous other false
17 promises that Bragg made to the IDC Commissioner over 5 separate IDCs. Put simply, it would
18 be unjust to let Bragg continue to participate in this litigation when he has made repeated false
19 statements to an officer of this Court and to Plaintiffs’ counsel.
20 The IDC Commissioner is amply familiar with the requirement that parties exhaust their
21 meet-and-confer efforts before bringing a discovery motion. The Commissioner is also familiar
22 with Bragg’s conduct in this case. That the Commissioner authorized this motion amply
23 demonstrates that Plaintiffs satisfied their meet-and-confer obligations and that Bragg has failed
24 to comply with this Court’s sanctions’ order.
25 V. Bragg Did Not Even Respond to Plaintiffs’ Detailed Separate Statement of
Discovery Deficiencies.
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Just as with Plaintiffs’ prior motion for sanctions, Bragg did not even attempt to respond
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to Plaintiffs’ detailed separate statement setting forth (some of) Bragg’s many discovery
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1 deficiencies. He has thus conceded the points raised by Plaintiffs therein. (See People v. Bouzas
2 (1991) 53 Cal.3d 467, 480; DuPont Merck Pharm. Co. v. Super. Ct. (2000) 78 Cal.App.4th 562,
3 566.) The myriad discovery violations identified in Plaintiffs’ separate statement independently
4 merit terminating sanctions, especially since they have persisted for nearly two years.
5 VI. Bragg’s Statements About Plaintiffs’ Discovery Responses are False.
6 Lastly, Bragg attempts to distract this Court from his long train of discovery abuses by
7 making false statements about Plaintiffs’ conduct. Although Bragg asserts that Plaintiffs have
8 responded to only one set of discovery requests (Opp. 7 n.9), Plaintiffs have in fact responded to
9 numerous rounds of discovery comprising hundreds of discovery requests served by all
10 Defendants in this action, beginning in October 2022 and continuing through two days ago—after
11 the close of discovery. (Vierra Reply Decl. ¶ 18.) Plaintiffs have not missed a single discovery
12 deadline. (Id.) Plaintiffs have requested—and received—fewer extensions of time to respond than
13 any of the Defendants. (Id.) And Plaintiffs have completed their document productions far more
14 quickly than any of the Defendants in this action. (Id.)
15 Finally, contrary to Bragg’s false accusation, Plaintiffs have served verifications with their
16 discovery responses on Defendants’ counsel of record by mail, with facsimiles of each Plaintiffs’
17 holographic signatures on individual verification sheets. (Id.) Plaintiffs served their verifications
18 in the exact same manner when responding to their last round of discovery requests without
19 objection. (Id.) In short, Bragg has fabricated a discovery foot-fault that never even happened.
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21 “California trial courts have inherent power to issue a terminating sanction when a [party’s]
22 conduct is deliberate, is egregious, and makes lesser sanctions inadequate to ensure a fair trial.”
23 (Stephen Slesinger, Inc. v. Walt Disney Co. (2007) 155 Cal.App.4th 736, 740.) A terminating
24 sanction is appropriate here because Bragg has engaged in “willful, repeated, and egregious
25 misuses of the discovery process.” (Dep’t of Forestry & Fire Prot. v. Howell (2017) 18
26 Cal.App.5th 154, 198 [internal quotation marks omitted]; see also City of L.A. v.
27 PricewaterhouseCoopers, LLC (2022) 84 Cal.App.5th 466, 499; Ellis v. Toshiba Am. Info. Sys.,
28 Inc. (2013) 218 Cal.App.4th 853, 879.) Although this Court previously declined to impose a
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1 terminating sanction because Bragg had not yet violated a direct order from the Court—as opposed
2 to a directive from the IDC Commissioner—he has now done so in multiple respects. Indeed,
3 Bragg does not (and cannot) contest that he remains in flagrant violation of the Court’s September
4 15, 2023 sanctions order with respect to monetary sanctions, document productions, and written
5 discovery. Even now, on the eve of trial, Bragg has still refused to provide discovery Plaintiffs
6 requested nearly 2 years ago. Instead of correcting his deficiencies, he continues to submit
7 provably false statements to Plaintiffs, the bankruptcy court, the IDC Commissioner, and this
8 Court. It would be a gross miscarriage of justice to permit Bragg to litigate this case on the merits
9 when he has engaged in such egregious misconduct.
10 CONCLUSION
11 For these reasons and those set forth in Plaintiffs’ motion and supporting declarations, the
12 Court should award terminating sanctions, strike Bragg’s answer, enter a default in Plaintiffs’
13 favor, and schedule a prove-up hearing where Plaintiffs can demonstrate their damages. The Court
14 should also issue contempt and monetary sanctions in an appropriate amount, but in no case less
15 than $22,500 each.
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Dated: February 15, 2024 By: ______________________
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Collin J. Vierra
19 EIMER STAHL, LLP
20 Attorney for Plaintiffs
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Preview
1 Collin J. Vierra (State Bar No. 322720) EIMER STAHL LLP 2 99 Almaden Blvd., Suite 600 San Jose, CA 95113-1605 3 Telephone: (408) 889-1668 Email: cvierra@eimerstahl.com 4 Attorney for Plaintiffs 5 6 SUPERIOR COURT OF THE STATE OF CALIFORNIA 7 COUNTY OF SAN MATEO 8 9 Robert Arntsen; Mary Lee; Arntsen Family Case No. 22-CIV-01148 Partnership, LP; Brian Christopher Dunn Consolidated with Case No. 23-CIV-01099 10 Custodianship, John Ho, and Quanyu Huang; 11 Date: February 23, 2024 Plaintiffs, Time: 9:00 a.m. 12 v. Dept. 24 13 David M. Bragg; Silicon Valley Real Ventures Hon. Jeffrey Finigan LLC; SVRV 385 Moore, LLC; SVRV 387 14 Moore, LLC; Gregory J. Davis; Kevin Wolfe; REPLY IN SUPPORT OF PLAINTIFFS’ 15 Jason Justesen; Paramont Woodside, LLC; MOTION FOR SANCTIONS AGAINST Paramont Capital, LLC; Monks Family Trust; DEFENDANTS DAVID M. BRAGG AND 16 TEH Capital LLC; Caproc III, LLC; WZ SILICON VALLEY REAL VENTURES, Partners, LLC; McClan Trust; Wild Rose LLC 17 Irrevocable Trust; Black Horse Holdings, LLC; Phil Stoker; Diane Stoker; Scott O’Neil; 18 Dale Huish; and DOES 1–20, 19 Defendants. 20 21 22 23 24 25 26 27 28 1 REPLY IN SUPPORT OF MOTION FOR SANCTIONS 1 TABLE OF CONTENTS 2 TABLE OF AUTHORITIES .......................................................................................................... 3 3 INTRODUCTION .......................................................................................................................... 4 4 REASONS WHY THE COURT SHOULD IMPOSE A TERMINATING SANCTION.............. 5 5 I. Bragg Still Has Not Paid the Court’s Monetary Sanction. .................................................... 5 6 II. Bragg Still Has Not Fulfilled His Document Production Obligations. .................................. 6 7 III. Bragg Still Has Not Fulfilled His Written Discovery Obligations................................... 9 8 IV. Bragg’s Statements About the Parties’ Meet and Confer Efforts are False. .................... 9 9 V. Bragg Did Not Even Respond to Plaintiffs’ Detailed Separate Statement of Discovery Deficiencies.......................................................................................................................... 10 10 VI. Bragg’s Statements About Plaintiffs’ Discovery Responses are False. ......................... 11 11 CONCLUSION ............................................................................................................................. 12 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 REPLY IN SUPPORT OF MOTION FOR SANCTIONS 1 TABLE OF AUTHORITIES 2 Page(s) 3 Cases 4 5 City of L.A. v. PricewaterhouseCoopers, LLC, (2022) 84 Cal.App.5th 466 ....................................................................................................... 11 6 Dep’t of Forestry & Fire Prot. v. Howell, 7 (2017) 18 Cal.App.5th 154 ................................................................................................... 4, 11 8 DuPont Merck Pharm. Co. v. Super. Ct. 9 (2000) 78 Cal.App.4th 562 ....................................................................................................... 11 10 Ellis v. Toshiba Am. Info. Sys., Inc., (2013) 218 Cal.App.4th 853 ..................................................................................................... 11 11 Kwan Software Eng’g, Inc. v. Hennings, 12 (2020) 58 Cal. App. 5th 57 ......................................................................................................... 4 13 People v. Bouzas 14 (1991) 53 Cal.3d 467 ................................................................................................................ 11 15 Stephen Slesinger, Inc. v. Walt Disney Co., (2007) 155 Cal.App.4th 736 ..................................................................................................... 11 16 17 Statutes 18 Code Civ. Proc. § 2031.280 ....................................................................................................... 8, 9 19 20 21 22 23 24 25 26 27 28 3 REPLY IN SUPPORT OF MOTION FOR SANCTIONS INTRODUCTION 1 After a year-and-a-half of Bragg’s egregious abuses of the discovery process—including 2 intentionally spoliating all of his text messages, withholding thousands of responsive documents 3 from Plaintiffs and his own counsel, instructing his counsel to refuse Plaintiffs’ meet-and-confer 4 calls, making repeated false statements to Plaintiffs and the Court, violating multiple IDC orders, 5 and refusing outright to respond to many discovery requests—this Court sanctioned Bragg $15,000 6 on September 15, 2023, and ordered him to promptly provide further responses. At that time, the 7 Court denied Plaintiffs’ request for terminating sanctions without prejudice because “[a]lthough 8 the Court agree[d] that discovery misconduct ha[d] occurred, [Bragg] ha[d] not [yet] failed to 9 comply with previous [Court] orders compelling discovery” (although by his own admission, 10 Bragg had already failed to comply with several orders of the IDC Commissioner). But Bragg has 11 now crossed that bridge as well by failing to comply with express orders of this Court by the time 12 required. And he remains in violation of those orders five months later. Bragg admits that he has 13 not complied the Court’s September 15, 2023 order—with respect to the monetary sanction, with 14 respect to Plaintiffs’ document requests, and with respect to Plaintiffs’ written discovery requests. 15 This case has now been pending for just under two years. Bragg’s discovery responses are twenty 16 months overdue. And by the time the Court hears this motion, the parties will already have 17 submitted their pre-trial filings, with trial set to begin in two weeks. 18 Bragg’s opposition brief only makes things worse because not only does it fail to provide 19 any plausible justification for Bragg’s discovery misconduct, but it is also rife with false 20 statements, which independently merits terminating sanctions. (Dep’t of Forestry & Fire Prot. v. 21 Howell (2017) 18 Cal.App.5th 154, 191; see also Kwan Software Eng’g, Inc. v. Hennings (2020) 22 58 Cal. App. 5th 57, 74.) It would make a mockery of the judicial process to allow Bragg to 23 participate in a trial on the merits when, for two years running, he has committed virtually every 24 possible misuse of the discovery process, thumbed his nose at the Court, and refused to correct his 25 behavior even after being sanctioned $15,000 (which, five months later, he still has not paid in 26 full). Enough is enough. This Court should award terminating sanctions, strike Bragg’s answer, 27 and grant a default judgment to Plaintiffs. 28 4 REPLY IN SUPPORT OF MOTION FOR SANCTIONS REASONS WHY THE COURT SHOULD IMPOSE A TERMINATING SANCTION 1 Several of Bragg’s discovery violations independently merit terminating sanctions. In 2 combination, it would be a miscarriage of justice not to impose such a sanction. 3 I. Bragg Still Has Not Paid the Court’s Monetary Sanction. 4 Bragg’s $15,000 was due on October 5, 2023. Today, as he admits, he is still in arrears. 5 (Opp. 3 n.4.) Contrary to Bragg’s assertion made under penalty of perjury, that is not for lack of 6 ability to pay. (Vierra Reply Decl. ¶ 3.) Bragg makes over $350,000 per year—not including his 7 income from his real estate projects—putting him in the top 2% of earners in California. (Id.) 8 Bragg spends more than $18,000 per month—up from the “only” $15,500 per month he claimed 9 he spent when he filed for bankruptcy in 2022 (doubtless targeted precisely so that he could assert 10 he could not afford the sanction)—including nearly $700 on his boat, more than $360 on his jet 11 skis, and nearly $2,000 on his trucks, among other vehicular expenditures. (Id., Exs. C, H; In re 12 David Matthew Bragg, No. 22-22700, Dkt. 1.) None of these expenditures is necessary; they are 13 luxuries. On top of this, on October 31, 2023, Bragg sold a vintage Cadillac—one of his many 14 high-end vehicles—for $38,500 (Opp. 10). But instead of using those funds to pay Plaintiffs’ 15 sanction, he forced Plaintiffs to undertake a burdensome wage garnishment effort, and then 16 improperly interfered with that effort on multiple occasions by improperly instructing his employer 17 not to comply with the garnishment order. (Id. ¶ 4 & Ex. B.) Moreover, although the Cadillac was 18 plainly worth at least $38,500, Bragg swore at least five separate times under penalty of perjury 19 that this vehicle was worth only $7,500—including as recently as December 8, 2023. (Vierra Reply 20 Decl. ¶ 6; In re David Matthew Bragg, No. 22-22700, Dkts. 1, 31–34, 65–66, 85.) For this and 21 other reasons, on January 2, 2024, the bankruptcy court stated in writing that Bragg “lacks all 22 credibility” and “is not at all credible.” (Vierra Decl., Ex. 2.) And Bragg’s insinuation that most of 23 the $38,500 was used to pay off a loan to his brother, Rich Bragg, is also demonstrably false— 24 Rich Bragg confirmed in writing that he returned over $38,240 of the $38,500 to Bragg on in early 25 January 2024. (Vierra Reply Decl. ¶ 6 & Exs. D–E.) The truth is that Bragg kept most of this 26 money for himself, rather than satisfy the sanction. 27 In addition, Bragg’s claim of exemption—filed under penalty of perjury—flatly contradicts 28 5 REPLY IN SUPPORT OF MOTION FOR SANCTIONS 1 his bankruptcy petitions—also filed under penalty of perjury. (Compare id, Ex. H, with In re David 2 Matthew Bragg, No. 22-22700, Dkts. 1, 31–34, 65–66, 85 [showing myriad contradictory 3 statements as to income, mortgage payments, assets owned, monthly expenditures on things like 4 clothing and laundry, and more].) As is his wont, Bragg makes false statements at all turns to avoid 5 paying his debts. 6 Notably, none of Bragg’s assertions in his opposition brief is supported by a declaration 7 from him—an omission to which the bankruptcy court objected previously. (In re David Matthew 8 Bragg, No. 22-22700 (Bankr. E.D. Cal. Sept. 14, 2023), Dkt. 58.) Indeed, when Bragg previously 9 sought to settle with the bankruptcy trustee, the bankruptcy court denied the proposed settlement 10 because Bragg’s bankruptcy schedules—which he submitted under penalty of perjury—were rife 11 with false statements, “problem[s],” “conflicts,” and “inconsistencies” that raised serious 12 “concerns.” (Id.) Thus, the bankruptcy judge stated on the record that he “want[ed] a declaration 13 from [Bragg]” correcting these inconsistencies. (Id.) 14 Bragg’s opposition also brazenly misleads this Court as to his penchant for high-class 15 indulgences. There was no reason Bragg had to take a vacation to Paris with his daughter in 16 September 2023 rather than pay down his debt to Plaintiffs. Bragg and his children appear to have 17 indulged in other expensive activities in recent months rather than pay his sanction—including a 18 recent snowboarding trip in January 2024. (Id. ¶ 7.) This does not even include Bragg’s and his 19 non-working children’s frequent outings on his boat, jet skis, and motorcycles, or his trips to other 20 exotic locations like Greece, Versailles, and Coronado Island. (Id.) And in addition to his vintage 21 Cadillac, Bragg has unlawfully sold numerous motorcycles belonging to the bankruptcy estate and 22 used the proceeds to purchase new motorcycles titled in his son’s name. (Id. ¶ 8. & Ex. F.) 23 Put simply, Bragg cannot be trusted to comply with the Court’s orders or to make truthful 24 statements to the Court, even under penalty of perjury. The Court should thus take Bragg’s 25 protestations that he has complied with his discovery obligations with a shaker worth of salt. 26 II. Bragg Still Has Not Fulfilled His Document Production Obligations. 27 Bragg is still withholding countless responsive documents from Plaintiffs—totaling at least 28 hundreds, and likely thousands, of documents. As Plaintiffs have explained previously, Bragg 6 REPLY IN SUPPORT OF MOTION FOR SANCTIONS 1 mostly used his personal Google account to conduct SVRV business, even though for over a year, 2 he falsely claimed that he never used his personal account for SVRV business. (MPA ISO Mot. to 3 Compel (June 12, 2023), at 10.) Bragg was forced to admit the falsity of that statement when 4 Plaintiffs confronted him—and presented the Court—with uncontroverted evidence of this 5 withholding. (Id.) Bragg has never granted Plaintiffs access to this account, even though Bragg 6 has repeatedly falsely stated—including to the IDC Commissioner—that he already produced all 7 responsive documents from Google. (Id. at 16; Vierra Reply Decl. ¶ 9.) 8 Bragg claims that he has now run a comprehensive set of search terms and produced all 9 documents from his personal Google account. (Opp. 2–3.) That is patently false. Bragg admits that 10 he has in his possession—but is still withholding—some of the most salient documents to this 11 litigation: emails sent from Bragg’s personal Google account in which he Bcc’d the purported 12 “members” of the Moore Road LLCs. (MPA ISO Mot. for Sanctions (Jan. 22, 2024), at 6 n.3.) 13 Those emails would have hit on numerous search terms that Bragg asserts he ran—including Bob, 14 Arntsen, Martha, Mary Lee, John Ho, Jacky Huang, Woodside, Moore, and possibly others. 15 (Vierra Reply Decl. ¶ 10.) Yet Bragg still has not produced them, even though he falsely told the 16 IDC Commissioner and the Court that he already had. (Id.) 17 Plaintiffs have conducted numerous other inspections that further prove that Bragg is 18 withholding hundreds, if not thousands, of responsive documents. For example, Genesis Bank 19 produced dozens of documents and communications exchanged with Bragg that Bragg has not 20 produced. (Id. ¶ 11.) Kurtis Kludt and Lukas Leuthold also provided hundreds documents and 21 communications in Bragg’s possession, custody, and control that hit on Bragg’s purported search 22 terms that Bragg has not produced. (Id.) Even Bragg’s brother—Rich Bragg—has produced 23 numerous responsive documents that Bragg has not produced. (Id.) In fact, every party and third 24 party to date has provided documents in Bragg’s possession, custody, and control that Bragg has 25 withheld. (Id.) And Plaintiffs still lack access to myriad highly salient responsive documents that 26 are exclusively in Bragg’s possession, custody, and control. These include all attachments to emails 27 he exchanged with the Paramont Defendants, who did not retain attachments to emails as a matter 28 of policy, and all Bcc’d recipients on Bragg’s key emails, which were evidently many due to 7 REPLY IN SUPPORT OF MOTION FOR SANCTIONS 1 Bragg’s penchant for using the Bcc field to conceal information from certain investors. (Id. ¶¶ 10, 2 12.) Notably, Consilio did not appear for the IDC or submit a declaration in support of Bragg’s 3 opposition brief, as the evidence definitively indicates that either (a) Consilio did not run the search 4 terms Bragg claims were run, (b) Bragg spoliated responsive documents before Consilio was able 5 to search his account, and/or (c) Bragg selectively withheld responsive documents after Consilio 6 identified them. (MPA ISO Mot. for Sanctions (Jan. 22, 2024), at 10 n.5.) 7 Bragg also falsely claims that Plaintiffs consented to his proposed search terms (which he 8 did not even run). (Opp. 5.) In fact, Plaintiffs have maintained since September 2022 that the search 9 terms proposed by Bragg were inadequate. (MPA ISO Mot. to Compel (June 12, 2023), at 10 n.4.) 10 Instead, Bragg’s Exhibit 1 flagrantly and intentionally misrepresents the search parameters that 11 Plaintiffs proposed in September 2022, as Plaintiffs have repeatedly informed Bragg, the IDC 12 Commissioner, and this Court. (Id.; compare Vierra Reply Decl., Ex. G, with RVS Decl., Ex. 1.) 13 That has not stopped Bragg from repeating this false assertion. 14 Bragg’s complaints about the costs of production are also absurd. In summer 2022, 15 Plaintiffs offered to download, process, Bates-stamp, and produce Bragg’s documents for him at 16 their own expense if he would simply provide them access to all responsive documents. (Opp. 9; 17 Vierra Reply Decl. ¶ 14.) Bragg provided Plaintiffs access to a selective set of fewer than 200 total 18 documents, which Plaintiffs duly downloaded, processed, Bates-stamped, and produced at their 19 own expense. (Id.) Bragg then falsely asserted that his production was complete even though he 20 was continuing to withhold thousands of responsive documents. (Id.) He did not produce any 21 additional documents for more than a year until being sanctioned $15,000—and even now he (a) 22 continues to withhold hundreds if not thousands of responsive documents, and (b) made his 23 document production appear large by producing hundreds of literal junk files—undisputed 24 evidence of which Plaintiffs provided this Court in their motion—rather than all responsive 25 documents. (Id.; MPA ISO Mot. for Sanctions (Jan. 22, 2024), at 12–13.) 26 Lastly, Bragg remains the only party to this litigation who refuses to comply with Code of 27 Civil Procedure § 2031.280(a), which requires parties to identify which documents are responsive 28 to which requests. (Id. at 9.) Bragg has repeatedly promised Plaintiffs and the IDC Commissioner 8 REPLY IN SUPPORT OF MOTION FOR SANCTIONS 1 that he would comply with the statute—but he has refused, even after being ordered by the Court 2 to comply. (Id.) Bragg’s contention that Plaintiffs must identify which RFPs require compliance 3 under § 2031.280(a) is meritless; Plaintiffs have demanded Bragg’s complete compliance with the 4 statute, but he has refused. (Opp. 9.) 5 III. Bragg Still Has Not Fulfilled His Written Discovery Obligations. 6 Bragg also refuses to supplement his written discovery responses to comply with the 7 Court’s September 15, 2023 sanctions order, both as to the missing substantive information and as 8 to his incorporation of documents that he has failed to specifically identify—even though he falsely 9 told Plaintiffs and the IDC Commissioner that he would do so by January 29, 2024 (which was 10 already months late). (IDC Minute Order (Jan. 17, 2024) [stating that Bragg “agreed to amend” 11 his deficient written discovery responses by January 29, 2024]; Vierra Reply Decl. ¶ 15.) The IDC 12 Commissioner already expressly found Bragg to be in violation of the Court’s September 15, 2023 13 order with respect to his written discovery responses. (IDC Minute Order (Jan. 17, 2024) [stating, 14 inter alia, that Bragg’s “response is not complete” and confirming that Bragg’s “amended 15 responses did not state the specific Bates numbers” incorporated into his written discovery 16 responses, in violation of the Court’s September 15, 2023 order].) And these requests were served 17 20 months ago. Bragg does not even contest these deficiencies in his opposition. That flagrant 18 refusal to comply with the Court’s sanctions order—and false statements made to Plaintiffs and 19 the IDC Commissioner—also merits terminating sanctions. 20 IV. Bragg’s Statements About the Parties’ Meet and Confer Efforts are False. 21 Bragg’s claim that Plaintiffs failed to exhaust their meet-and-confer efforts is false and 22 independently sanctionable. Bragg’s counsel made the same accusation at the hearing on Plaintiffs’ 23 prior motion for sanctions and at prior IDCs. (Vierra Reply Decl. ¶ 16.) The Court and the IDC 24 Commissioner correctly rejected this false assertion. (Id.) That is because it is Bragg, not Plaintiffs, 25 that has willfully violated the meet-and-confer requirement. Indeed, for 9 months Bragg instructed 26 his counsel both in this proceeding and in the bankruptcy proceeding not to speak with Plaintiffs’ 27 counsel, with which instruction Bragg’s counsel complied in flagrant violation of state and federal 28 rules. (Id.) Eventually, the IDC Commissioner ordered Bragg and his counsel to meet and confer 9 REPLY IN SUPPORT OF MOTION FOR SANCTIONS 1 in Plaintiffs’ counsel’s office, but when they arrived, they failed to fulfill the promises they made 2 to Plaintiffs and the IDC Commissioner. (Id.) That was why the IDC Commissioner authorized 3 Plaintiffs’ last motion to compel and for sanctions and explicitly called Bragg’s conduct 4 sanctionable. (MPA ISO Mot. to Compel (June 12, 2023), at 7.) 5 This time, Bragg’s counsel finally agreed to a telephonic meet-and-confer, which the 6 parties held on November 16, 2023 for over 30 minutes. (Id. ¶ 17.) That meet-and-confer was also 7 attended by Consilio. (Id.) On that call, Bragg’s counsel admitted to the numerous deficiencies in 8 his discovery responses and promised that Bragg would supplement his responses soon—even 9 though his discovery responses were already a year-and-a-half overdue and delinquent under this 10 Court’s September 15, 2023 sanctions order. (Id.) In an attempt to avoid burdening this Court with 11 another sanctions motion, Plaintiffs gave Bragg repeated extensions of time to correct these 12 deficient discovery responses. (Id.) But three months later, Bragg has not supplemented a single 13 deficient discovery response even though he expressly told the IDC Commissioner that he would 14 correct his discovery deficiencies by January 29, 2024. (Id.; IDC Minute Order (Jan. 17, 2024).) 15 Bragg also said that Consilio would attend the IDC—but Consilio did not. (MPA ISO Mot. for 16 Sanctions (Jan. 22, 2024), at 10 n.5) And this follows on the heels of the numerous other false 17 promises that Bragg made to the IDC Commissioner over 5 separate IDCs. Put simply, it would 18 be unjust to let Bragg continue to participate in this litigation when he has made repeated false 19 statements to an officer of this Court and to Plaintiffs’ counsel. 20 The IDC Commissioner is amply familiar with the requirement that parties exhaust their 21 meet-and-confer efforts before bringing a discovery motion. The Commissioner is also familiar 22 with Bragg’s conduct in this case. That the Commissioner authorized this motion amply 23 demonstrates that Plaintiffs satisfied their meet-and-confer obligations and that Bragg has failed 24 to comply with this Court’s sanctions’ order. 25 V. Bragg Did Not Even Respond to Plaintiffs’ Detailed Separate Statement of Discovery Deficiencies. 26 Just as with Plaintiffs’ prior motion for sanctions, Bragg did not even attempt to respond 27 to Plaintiffs’ detailed separate statement setting forth (some of) Bragg’s many discovery 28 10 REPLY IN SUPPORT OF MOTION FOR SANCTIONS 1 deficiencies. He has thus conceded the points raised by Plaintiffs therein. (See People v. Bouzas 2 (1991) 53 Cal.3d 467, 480; DuPont Merck Pharm. Co. v. Super. Ct. (2000) 78 Cal.App.4th 562, 3 566.) The myriad discovery violations identified in Plaintiffs’ separate statement independently 4 merit terminating sanctions, especially since they have persisted for nearly two years. 5 VI. Bragg’s Statements About Plaintiffs’ Discovery Responses are False. 6 Lastly, Bragg attempts to distract this Court from his long train of discovery abuses by 7 making false statements about Plaintiffs’ conduct. Although Bragg asserts that Plaintiffs have 8 responded to only one set of discovery requests (Opp. 7 n.9), Plaintiffs have in fact responded to 9 numerous rounds of discovery comprising hundreds of discovery requests served by all 10 Defendants in this action, beginning in October 2022 and continuing through two days ago—after 11 the close of discovery. (Vierra Reply Decl. ¶ 18.) Plaintiffs have not missed a single discovery 12 deadline. (Id.) Plaintiffs have requested—and received—fewer extensions of time to respond than 13 any of the Defendants. (Id.) And Plaintiffs have completed their document productions far more 14 quickly than any of the Defendants in this action. (Id.) 15 Finally, contrary to Bragg’s false accusation, Plaintiffs have served verifications with their 16 discovery responses on Defendants’ counsel of record by mail, with facsimiles of each Plaintiffs’ 17 holographic signatures on individual verification sheets. (Id.) Plaintiffs served their verifications 18 in the exact same manner when responding to their last round of discovery requests without 19 objection. (Id.) In short, Bragg has fabricated a discovery foot-fault that never even happened. 20 * * * 21 “California trial courts have inherent power to issue a terminating sanction when a [party’s] 22 conduct is deliberate, is egregious, and makes lesser sanctions inadequate to ensure a fair trial.” 23 (Stephen Slesinger, Inc. v. Walt Disney Co. (2007) 155 Cal.App.4th 736, 740.) A terminating 24 sanction is appropriate here because Bragg has engaged in “willful, repeated, and egregious 25 misuses of the discovery process.” (Dep’t of Forestry & Fire Prot. v. Howell (2017) 18 26 Cal.App.5th 154, 198 [internal quotation marks omitted]; see also City of L.A. v. 27 PricewaterhouseCoopers, LLC (2022) 84 Cal.App.5th 466, 499; Ellis v. Toshiba Am. Info. Sys., 28 Inc. (2013) 218 Cal.App.4th 853, 879.) Although this Court previously declined to impose a 11 REPLY IN SUPPORT OF MOTION FOR SANCTIONS 1 terminating sanction because Bragg had not yet violated a direct order from the Court—as opposed 2 to a directive from the IDC Commissioner—he has now done so in multiple respects. Indeed, 3 Bragg does not (and cannot) contest that he remains in flagrant violation of the Court’s September 4 15, 2023 sanctions order with respect to monetary sanctions, document productions, and written 5 discovery. Even now, on the eve of trial, Bragg has still refused to provide discovery Plaintiffs 6 requested nearly 2 years ago. Instead of correcting his deficiencies, he continues to submit 7 provably false statements to Plaintiffs, the bankruptcy court, the IDC Commissioner, and this 8 Court. It would be a gross miscarriage of justice to permit Bragg to litigate this case on the merits 9 when he has engaged in such egregious misconduct. 10 CONCLUSION 11 For these reasons and those set forth in Plaintiffs’ motion and supporting declarations, the 12 Court should award terminating sanctions, strike Bragg’s answer, enter a default in Plaintiffs’ 13 favor, and schedule a prove-up hearing where Plaintiffs can demonstrate their damages. The Court 14 should also issue contempt and monetary sanctions in an appropriate amount, but in no case less 15 than $22,500 each. 16 17 Dated: February 15, 2024 By: ______________________ 18 Collin J. Vierra 19 EIMER STAHL, LLP 20 Attorney for Plaintiffs 21 22 23 24 25 26 27 28 12 REPLY IN SUPPORT OF MOTION FOR SANCTIONS