Preview
1 JEFFREY E. TSAI (SBN 226081)
jeff.tsai@us.dlapiper.com
2 KATHLEEN S. KIZER (SBN 246035)
kathy.kizer@us.dlapiper.com
3
EMILY ROSE MARGOLIS (SBN 324089)
4 emily.margolis@us.dlapiper.com
DLA PIPER LLP (US)
5 555 Mission Street, Suite 2400
San Francisco, California 94105-2933
6 Tel: 415.836.2500 | Fax: 415.836.2501
7
Attorneys for Defendants
8 CELESTE WHITE, DR. ROBERT WHITE, and
THE VALLEY ROCK FOUNDATION
9
10
SUPERIOR COURT OF THE STATE OF CALIFORNIA
11
FOR THE COUNTY OF NAPA
12
13
LISA KEITH, an individual, CASE NO. 22CV001269
14
Plaintiff,
15 DEFENDANTS’ OPPOSITION TO
PLAINTIFF’S MOTION TO COMPEL
v.
16 FURTHER RESPONSES AND FOR
CELESTE WHITE, an individual, ROBERT MONETARY SANCTIONS
17 WHITE, an individual, the VALLEY ROCK
FOUNDATION, aka THE BAR 49 Date: March 19, 2024
18 FOUNDATION, a charitable organization, Time: 8:30 a.m.
and DOES 1-50, INCLUSIVE, Judge: Hon. Scott R.L. Young
19 Dept.: B
Defendants.
20 Complaint Filed: October 25, 2022
FAC Filed: March 8, 2023
21 Trial Date: April 2, 2024
22
23
24
25
26
27
28
-1-
DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION TO COMPEL
CASE NO. 22CV001269
1 COMES NOW Defendants, by and through undersigned counsel, in opposition to the
2 untimely and meritless Motion to Compel Further Responses (“Motion”) filed by Plaintiff Lisa
3 Keith.
4 I. INTRODUCTION
5 Plaintiff’s untimely and meritless motion should never have been brought. It is
6 procedurally defective and beyond remedy, and the Court need not inquire further. But even on the
7 merits, the motion is—at best—moot because there are no additional responsive records.
8 Plaintiff’s motion is an exercise in futility and has caused the wasteful use of resources. Plaintiff’s
9 Motion should be denied in its entirety.
10 First, Plaintiff’s motion is procedurally defective. Plaintiff noticed her Motion to be heard
11 after the March 13, 2024, deadline to hear fact discovery motions in this case, but Plaintiff failed
12 to file the required motion to reopen or extend fact discovery with a supporting meet and confer
13 declaration, both of which are mandatory for any attempt to have a fact discovery motion heard
14 after the cutoff. Without these prerequisites, the Court lacks discretion to even hear the Motion.
15 Second, even if Plaintiff had met the prerequisites to have her untimely Motion heard (she
16 has not), Plaintiff cannot show why any of the statutory factors weigh in favor of the Court
17 hearing the Motion after the cutoff. For example, Plaintiff has not shown that the discovery she
18 seeks is necessary for her case; she has not shown diligence in either pursuing that discovery or in
19 bringing this Motion; and her repetitive, meritless efforts to continue the trial and otherwise delay
20 this case prejudice Defendants. Plaintiff’s failure to address these factors is another reason for the
21 Court to deny Plaintiff’s Motion.
22 Third, even on the merits, Plaintiff’s motion is a meaningless detour. Singer has already
23 produced all documents responsive to the Subpoena. Singer and its counsel have explained this
24 to Plaintiff repeatedly—and do so again with this Opposition supported by evidence. Yet, without
25 any good-faith basis, Plaintiff continues to waste the time of the Court and a third-party entity in
26 seeking documents that do not exist.
27 Finally, Plaintiff’s Motion makes numerous misrepresentations that appear aimed at
28 creating artificial controversy to distract from the Motion’s absence of merit and Plaintiff’s lack of
-2-
DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION TO COMPEL
CASE NO. 22CV001269
1 diligence in discovery. Not only should Plaintiff’s Motion be denied, but sanctions are warranted
2 here for her continued misuse of the discovery process.
3 II. FACTUAL AND PROCEDURAL BACKGROUND
4 A. Plaintiff’s Subpoena to Singer Associates Inc.
5 1. Plaintiff’s Deficient Consumer Records Notice
6 On December 20, 2023, Plaintiff served a Notice to Consumer on each of the Defendants
7 regarding the subpoena for business records directed at third-party Singer (the “Subpoena”).
8 (Declaration of Kathleen Kizer in support of Oppositions to Plaintiff’s Motion to Compel [“Kizer
9 Decl.”], ¶ 3.) Seven days later, on December 27, 2023, Plaintiff served the Subpoena on Singer’s
10 registered agent for service of process, Sharon Singer, at her home in Berkeley, California.
11 (Declaration of Sam Singer in support of Singer Associates Inc.’s Opposition to Motion to Compel
12 [“Singer Decl.”], ¶ 21.) Before then, Plaintiff made no attempt to serve Singer, whether at its place
13 of business in San Franscisco (which is open to the public during normal business hours) or upon
14 Ms. Singer at her place of residence (where she was regularly available). (Singer Decl., ¶¶ 16-21.)
15 Defendants objected to the Subpoena to third-party Singer because Plaintiff provided
16 insufficient notice under Code of Civil Procedure section 1985.3, which requires that consumers
17 receive ten days’ notice before service upon a custodian of records (if they are served by mail).1
18 (Kizer Decl., ¶ 3; Code Civ. Proc., §§ 1985.3, 1013(a).) Because of Defendants’ objection, Singer
19 did not produce documents responsive to the Subpoena on the January 24, 2024 deadline.2 (Kizer
20 Decl., ¶ 4; Singer Decl., ¶ 22.)
21
1
Plaintiff served this notice by mail, notwithstanding the parties’ entry into an electronic service agreement
22 in this case, in an apparent attempt to prevent Defendants from obtaining actual notice of the Subpoena during the
winter holidays. (Kizer Decl. ¶ 3.)
23
2
Plaintiff and her counsel have themselves lodged the same Consumer Records Notice objections as to
24 discovery served by Defendants and prevented the production of subpoena records:
1. As to discovery served on Plaintiff’s prior counsel Dominic Campisi, Plaintiff and her counsel’s
25 objection resulted in Campisi refusing to produce documents.
2. As to discovery served on Plaintiff’s employer Sotheby’s Golden Gate International Realty, Plaintiff
26 and her counsel’s objection has resulted in an ongoing refusal by Sotheby’s to produce any documents
responsive to an employment records subpoena served upon it on January 22, 2024 (which were due on
27 February 12). Moreover, Sotheby’s General Counsel has informed Defendants’ counsel that Sotheby’s
will not produce any documents while any objections to any of the document requests is still
28 outstanding. (See Kizer Decl., ¶ 3.)
-3-
DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION TO COMPEL
CASE NO. 22CV001269
1 2. Plaintiff’s Failed Attempts to Continue the Trial and Singer’s
Production of all Documents Responsive to the Subpoena
2
3 Plaintiff filed her first ex parte application to continue the hearing on Defendants’ Motion
4 for Summary Judgment (“MSJ”) and trial on February 6, 2024.3 The purported reason for this
5 application was Singer’s lack of production in response to Plaintiff’s Subpoena. At the February 7
6 hearing on the application, Plaintiff’s counsel admitted that she did not realize until that hearing
7 that Plaintiff’s consumer notice had been deficient. (Kizer Decl., ¶ 3.) Nonetheless, Defendants’
8 counsel offered to facilitate Singer’s production of documents by the following business day,
9 February 8.4 (Id., ¶ 2.) Singer produced all documents responsive to the subpoena directly to
10 Plaintiff through its counsel—Defendants’ counsel—the following business day, February 8. 5 (Id.,
11 ¶ 2; Singer Decl. ¶ 24.)
12 Thereafter, during a meet-and-confer regarding Plaintiff’s objections, undersigned counsel
13 for Singer represented to Plaintiff’s counsel that Singer had produced all documents responsive to
14 Plaintiff’s subpoena.6 (Kizer Decl., ¶¶ 8-9, Exs. 1-2.) Nevertheless, Plaintiff filed her second ex
15 parte motion to continue the MSJ hearing and trial on February 14, again arguing a continuance
16 was needed because Singer failed to produce documents. (Id., ¶ 10.) At the hearing, Singer’s
17 counsel again represented to the Court and to Plaintiff’s counsel that Singer had made a full and
18
3
Plaintiff did not style the application as a trial continuance request. However, she sought a new MSJ
19 hearing date more than sixty days after the first day of trial. (Kizer Decl., ¶ 2.)
20 4
The Motion incorrectly identifies the date of Singer’s production as February 7. (Motion at ¶¶ 9, 11). The ex
parte hearing was on February 7, and Singer’s production was made on February 8. The Court moved the MSJ
21 hearing date from March 1 to March 8 at the February 7 hearing because of scheduling conflicts that would have made
both Judges Young and Smith unavailable on March 1. Thus, the docket shows the ex parte application as “granted”
22 but Plaintiff did not obtain the relief she sought in continuing the MSJ hearing by over sixty days. (Kizer Decl., ¶ 3.)
23 5
Plaintiff makes a mountain out of a molehill by repeatedly complaining that Ms. Kizer did not, at that
hearing, announce that Defendants’ counsel was representing Singer in its response to the Subpoena. The information
24 was not intentionally concealed but rather the issue simply did not come up during that short hearing. (Kizer Decl. ¶
5.) At the hearing on Plaintiff’s next attempt to continue the trial in this matter, on February 15, counsel for
25 Defendants clarified openly on the record that DLA Piper began representing Singer after it was served with the
Subpoena on December 27. Thus, Plaintiff’s complaints that she still lacks this information are simply untrue. DLA
26 Piper forcefully repudiates any insinuation of impropriety that Plaintiff now desperately seeks to create in order to
distract from her own lack of diligence here.
27 6
Because Plaintiff’s counsel objected to DLA Piper’s production of Singer’s documents on its behalf, Singer
28 also produced all 700+ pages of its responsive documents in hard copy to the deposition officer in Los Angeles along
with an affidavit of Singer’s custodian of records. (Kizer Decl., ¶¶ 7, 13, Ex. 5.)
-4-
DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION TO COMPEL
CASE NO. 22CV001269
1 complete production of documents responsive to the Subpoena on February 8.7 (Id.) Accordingly,
2 the Court denied the motion. (Id.)
3 Plaintiff now brings yet another motion based on her erroneous and unfounded belief that
4 Singer has not produced all documents responsive to the Subpoena. Plaintiff did not meet and
5 confer with counsel for Defendants prior to filing the instant Motion. (Kizer Decl., ¶ 11.)
6 B. Singer Has Produced All Documents Responsive to the Subpoena
7 Plaintiff complains, based on mere speculation, that Singer has withheld documents
8 responsive to Requests Nos. 5, 7, 8, 9, 10, 11, and 27. Singer has not done so. Rather, as Singer’s
9 counsel has repeatedly stated to both Plaintiff’s counsel and to the Court, Singer conducted a
10 diligent search and produced all documents responsive to the Subpoena, consisting of over 700
11 pages of material. (Singer Decl., ¶ 24; Kizer Decl., ¶¶ 2, 7-9, Exs. 1-2.)
12 1. Singer Has No Documents Responsive to Requests Nos. 5 and 7
13 Requests Nos. 5 and 7 call for certain social media posts. (See Lam Decl., Ex. 1) Singer
14 only used Twitter once to announce the August 2021 press release. (Singer Decl. ¶ 15.) Singer did
15 not retain a copy, screenshot, or print-out of that post (which Plaintiff printed and attached as an
16 exhibit to her FAC) or any other social media post. (Id.; FAC Ex. E.) As a result, Singer has no
17 documents responsive to Requests Nos. 5 or 7. (Singer Decl. ¶ 15.)
18 2. Singer Has No Documents Responsive to Requests Nos. 8 and 9
19 Requests Nos. 8 and 9 seek documents reflecting communications with Platinum Advisors
20 LLC and Kenwood Investments LLC that mention Plaintiff. (See Lam Decl., Ex. 1.) Both
21 Platinum Advisors LLC and Kenwood Investments LLC had limited involvement with the press
22 release at issue in this litigation. (See Kizer Decl., ¶ 12, Ex. 4 [Declaration of Darius Anderson];
23 see also Singer Decl., ¶ 13.) No one at either entity played any role in drafting, reviewing,
24 revising, or distributing the Press Release. (Singer Decl., ¶ 13; Kizer Decl., Ex. 4 [Anderson
25 Decl.], ¶ 3.) Accordingly, after a diligent search, Singer has not found any documents responsive
26
7
27 Plaintiff’s Motion erroneously refers to its “counsel’s representation of inability to comply” with the
Subpoena. (Motion at ¶ 15.) Singer’s counsel has made no such representation of an inability to comply. Singer’s
28 counsel has instead only represented repeatedly that Singer conducted a diligent, good faith search, collection, and
production of all responsive documents.
-5-
DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION TO COMPEL
CASE NO. 22CV001269
1 to either Request No. 8 or 9. (Singer Decl., ¶ 14.)
2 3. Singer Produced All Documents Responsive to Requests Nos. 10 and 11
3 Requests Nos. 10 and 11 seek documents reflecting communications with Platinum
4 Advisors LLC and Kenwood Investments LLC that mention “the lawsuit filed by LISA KEITH in
5 Napa County Superior Court, Case No. 26-36111.” (See Lam Decl., Ex. 1.) After a diligent search,
6 Singer produced all documents responsive to these requests, as well as other communications with
7 Platinum and/or Kenwood relating to the Whites’ media campaign. (Singer Decl., ¶ 13.)
8 4. Singer Has No Documents Responsive to Request No. 27
9 Request No. 27 seeks “All DOCUMENTS and COMMUNICATIONS RELATED to
10 metrics and/or measurements of the publication and/or dissemination of press releases and/or
11 social media posts, indicating any qualities such as the extent of dissemination, the number of
12 views, the number of clicks, or the likes or dislikes or any reaction to the press releases and/or
13 social media posts which specifically or generally make any mention of CELESTE WHITE
14 prevailing in a lawsuit against LISA KEITH.” (See Lam Decl., Ex. 1.)
15 While one news distribution service that Singer employed (EIN Presswire) provided
16 distribution reports to Singer for press releases issued about Defendants’ business and
17 philanthropic endeavors, the distribution services that Singer used for the press release at issue in
18 this litigation did not. (Singer Decl., ¶¶ 10-12.) Accordingly, after conducting a diligent search,
19 Singer has confirmed that it lacks documents responsive to Request No. 27. (Singer Decl., ¶ 12.)
20 III. ARGUMENT
21 A. Plaintiff’s Motion is Untimely
22 The Court need not reach the merits of the Motion because it is procedurally defective. It is
23 well-known law in California that “a party who notices a discovery motion to be heard after the
24 discovery motion cutoff date does not have a right to have the motion heard.” (Pelton-Shepherd
25 Indus., Inc. v. Delta Packaging Prods., Inc. (2008) 165 Cal.App.4th 1568, 1586, discussing Code
26 Civ. Proc., § 2024.020, subd. (a) [discussing Code Civ. Proc., § 2024.020, subd. (a)].) To have a
27 fact discovery motion heard after the fact discovery cutoff, a party must first bring a motion to
28 reopen or extend discovery under Code of Civil Procedure section 2024.050. (Id.) A motion to
-6-
DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION TO COMPEL
CASE NO. 22CV001269
1 reopen must be accompanied by a meet and confer declaration. (Id. [citing Code Civ. Proc., §
2 2024.050, subd. (a)].)
3 In this case, the deadline to hear fact discovery motions is March 13. (See Code Civ. Proc.,
4 § 1005; Local Rule 6.2.) Plaintiff noticed this Motion for hearing on March 19, well after the
5 cutoff. Yet, Plaintiff has not filed a motion to reopen or extend discovery as required under
6 Section 2024.050. Nor has Plaintiff filed the required meet-and-confer declaration, as also
7 required. (Code Civ. Proc., § 2024.050, subd. (a).) To be sure, Plaintiff did not meet and confer
8 with Defendants about reopening or extending fact discovery before filing this Motion. (Kizer
9 Decl., ¶ 11.) The Court need not consider the Motion any further and should deny it due to its
10 procedural defects.
11 B. Plaintiff Cannot Make the Required Showing to Have her Untimely Motion
Heard After the Cutoff
12
13 Even if Plaintiff had complied with the statute requiring a motion to reopen or extend fact
14 discovery, the Court would still be required to deny Plaintiff’s request to have her motion heard
15 after the cutoff because Plaintiff cannot make the showing required by statute. (See Code Civ.
16 Proc., § 2024.050, subd. (b).) Upon the filing of a motion to reopen discovery, the Court is
17 required to consider the following factors, or other relevant matters, in determining whether to
18 reopen or extend fact discovery: (1) the necessity and reasons for the discovery; (2) the diligence
19 or lack of diligence of the party seeking the hearing of a discovery motion, and the reasons that the
20 discovery motion was not heard earlier; (3) any likelihood that permitting the discovery or hearing
21 the motion will prevent the case from going to trial on the date set, or otherwise interfere with the
22 trial calendar, or result in prejudice to any other party; (4) the length of time that has elapsed
23 between any date previously set, and the date presently set, for trial. (Code Civ. Proc., § 2024.050,
24 subd. (b)(1)-(4); see also Pelton-Shepherd, supra, 165 Cal.App.4th at 1586-87 [finding trial court
25 abused its discretion by hearing a fact discovery motion after the cutoff date, where the party
26 seeking the hearing did not file a motion to reopen or extend discovery and did not file a meet and
27 confer declaration].)
28 Here, even if Plaintiff had filed a motion to reopen, there is no legitimate basis for the
-7-
DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION TO COMPEL
CASE NO. 22CV001269
1 Court to reopen fact discovery.
2 Necessity and Reasons for Discovery
3 Plaintiff has not and cannot explain why the discovery she seeks is necessary, in light of
4 repeated representations that Singer has already produced all documents responsive to Plaintiff’s
5 subpoena. Based on this fact alone, Plaintiff cannot show the discovery is necessary so as to
6 justify hearing this motion after the cutoff.
7 Diligence or Lack of Diligence of Party Seeking Hearing
8 Plaintiff’s abject failure with regard to diligence is two-fold here. First, Plaintiff did not
9 diligently seek discovery from Singer in the first place. Plaintiff has been aware of Singer’s
10 involvement in this case since at least October 2022, when she filed her Complaint, which
11 explicitly mentions Singer by name. Plaintiff could have sought discovery from Singer
12 immediately upon filing her Complaint. While Plaintiff attests that she first began attempting to
13 subpoena Singer in September 2023, she has provided no competent evidence of any such attempt
14 (for example, in the form of an affidavit from a process server, which is customary evidence of
15 service attempts that Plaintiff could easily have obtained if her purported service attempts actually
16 occurred).8 On the other hand, Singer has provided evidence, submitted again along with this
17 Opposition, that Plaintiff made no attempts to serve Singer until December 27, 2023, on which
18 date its agent for service of process was easily located and served and could have easily been
19 served earlier. (Singer Decl., ¶¶ 16-24.)
20 Plaintiff’s lack of diligence continued with regard to her filing this Motion. Singer’s
21 deadline to produce documents was January 24, 2024. Singer did not produce documents on that
22 date based on Defendants’ valid objection to the Subpoena. Instead of promptly moving to compel
23 Singer, Plaintiff instead twice attempted to continue the MSJ and trial dates. After those efforts
24 failed, and Singer produced all documents responsive to the subpoena on February 8, 2024,
25 Plaintiff still waited until February 23 to file this Motion—a full month after the deadline in the
26
8
27 Plaintiff’s Motion states that “Singer Associates dodged service for several months” and “it is reasonable to
assume that Singer was intentionally dodging service at the behest of Defendants.” (Motion at ¶ 5, n.1). It is in fact not
28 reasonable to make such an assumption, in particular in light of zero evidence of any attempts to serve Singer before
December 27. Singer, Defendants, and counsel for Singer and Defendants vehemently reject this baseless accusation.
-8-
DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION TO COMPEL
CASE NO. 22CV001269
1 Subpoena. Plaintiff has not made, and cannot make, any showing of diligence for her delay in
2 bringing this Motion. Had Plaintiff exercised a degree of reasonable diligence, she could have had
3 the Motion heard before the cutoff.9 There is no reason for the Court to reward her dilatory
4 conduct.
5 Interference with Trial and Prejudice to other Parties
6 Plaintiff has already sought and failed to continue the trial date twice. Defendants would be
7 prejudiced by the Court’s hearing Plaintiff’s Motion after the cutoff because they are diligently
8 preparing for trial. (Kizer Decl., ¶ 15.) Defendants are eager to have this case heard and to put this
9 litigation behind them. Their right to have fact discovery motions heard by the March 13 deadline
10 would be violated by allowing this Motion to be heard after the cutoff for no good reason. (See
11 Pelton-Shepherd, supra, 165 Cal.App.4th at 1586.)
12 C. Singer Has Produced All Responsive Documents
13 As a merits issue, which the Court need not even reach, the Motion should be denied.
14 Singer has already made a full and complete production of documents responsive to the Subpoena
15 after conducting a diligent search for responsive records. (See generally Singer Decl.) Plaintiff’s
16 Motion points to particular document requests for which Plaintiff hopes additional documents are
17 in Singer’s possession. But Plaintiff’s magical thinking is not evidence, and it is not a basis to
18 grant a motion to compel.10
19 Plaintiff spends a great deal of her Motion describing the method and format of Singer’s
20 February 8 production, complaining that Singer’s counsel produced documents electronically
21 directly to Plaintiff’s counsel rather than to the deposition officer in paper format. (Motion at ¶¶ 9,
22
9
Plaintiff could have filed her motion to compel as late as February 20 to have it heard by March 13, but she
23 waited until February 23. (See Code Civ. Proc., § 1005; Local Rule 6.2.) Plaintiff’s lack of diligence generally is
apparent in her late service of other discovery in this case, including third-party document subpoenas, third-party
24 deposition subpoenas, and written discovery requests on Defendants, all of which call for responses after the fact
discovery cutoff. (Kizer Decl., ¶ 14.) Indeed, it became clear during a recent telephonic meet and confer that
25 Plaintiff’s counsel was not aware of the correct fact discovery cutoff date. (Id.)
10
26 Plaintiff inexplicably cites to Padron v. Watchtower Bible & Tract Soc. of New York, Inc. (2017) 16
Cal.App.5th 1246 for the proposition that a party must make a diligent search and reasonable inquiry to comply with a
27 document demand, and must produce responsive items in its possession, custody, or control. (See Motion at ¶ 17.)
That case does not apply here as Singer is not a party to this litigation. And regardless, Singer has produced all
28 documents responsive to the Subpoena. (Singer Decl. ¶ 15.)
-9-
DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION TO COMPEL
CASE NO. 22CV001269
1 13, 24-26.) This is a red herring, as not only did Singer produce all responsive documents
2 electronically directly to Plaintiff’s counsel, Singer also produced all responsive documents to
3 the deposition officer along with a custodial affidavit. (Kizer Decl., ¶¶ 7, 13, Ex. 5.) Plaintiff
4 omits these inconvenient facts from her moving papers in an apparent attempt to generate a faux
5 controversy on which to base her baseless Motion.11
6 D. The Court Should Issue Sanctions Because Plaintiff’s Motion is Harassing,
Baseless, and Without Justification
7
8 Two statutes require imposition of sanctions against Plaintiff for bringing this Motion. (See
9 Code Civ. Proc., § 2025.480, subd. (j) [sanctions required for unsuccessful motion to compel];
10 § 2024.050, subd. (c) [sanctions required for unsuccessful motion to reopen or extend discovery].)
11 Here, Plaintiff’s Motion lacks justification, let alone substantial justification. (See id. [“the Court
12 shall impose a monetary sanction under Section 7 . . . against any party, person, or attorney who
13 unsuccessfully makes or opposes a [motion to compel an answer or production/motion to extend
14 or to reopen discovery], unless it finds that the one subject to the sanction acted with substantial
15 justification or that other circumstances make the imposition of the sanction unjust”].) Instead, it
16 disregards the law, including statutory deadlines, misrepresents the facts, and wastes the Court’s,
17 Singer’s and Defendants’ time and resources.
18 Imposition of sanctions against Plaintiff in the amount of $4,000, and in favor of
19 Defendants, is necessary and just given that Plaintiff has knowingly flouted procedural
20 requirements designed to gatekeep against frivolous legal processes, has no merits-based reason to
21 prosecute a motion to compel, and Singer is not a party to this litigation otherwise subject to
22 discovery. (See Kizer Decl., ¶ 17.)
23 \\\
24 \\\
25 \\\
26
11
27 In a further attempt to generate a faux controversy, Plaintiff complains ad nauseum that Defendants’
counsel did not explain during the short, focused hearing on Plaintiff’s first failed attempt to continue the MSJ hearing
28 and trial that it also represented Singer with respect to the Subpoena. The Court should not be misled by this irrelevant
issue.
-10-
DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION TO COMPEL
CASE NO. 22CV001269
1 IV. CONCLUSION
2 For the reasons stated above, Defendants respectfully request that the Court deny
3 Plaintiff’s Motion and impose monetary sanctions on Plaintiff in the amount of $4,000.
4
5 Dated: March 6, 2024 DLA PIPER LLP (US)
6
By:
7
JEFFREY E. TSAI
8 KATHLEEN S. KIZER
EMILY ROSE MARGOLIS
9 Attorneys for Defendants
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
-11-
DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION TO COMPEL
CASE NO. 22CV001269
1 PROOF OF SERVICE
2 STATE OF CALIFORNIA, COUNTY OF SAN FRANCISCO
3 I am employed in the County of San Francisco, State of California. I am over the age of 18
4 and not a party to the within action; my business address is: DLA Piper LLP (US), 555 Mission
5 Street, Suite 2400, San Francisco, CA 94105.
6 On March 6, 2024, I served the foregoing document(s) described as:
7 DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION TO COMPEL
FURTHER RESPONSES AND FOR MONETARY SANCTIONS
8
on the following:
9
John S. Rueppel
10
Angie Lam
11 JOHNSTON, KINNEY & ZULAICA LLP
101 Montgomery Street, Suite 1600
12 San Francisco, California 94104
T: 415.693.0550
13 F: 415.693.0500
E: john@jkzllp.com
14
evan@jkzllp.com
15 Attorneys for Plaintiff Lisa Keith
16
17 I transmitted copies of the document(s) described above via e-mail to the persons at the
18 email addresses set forth above pursuant to the parties’ mutual agreement on or about March 21,
19 2023, to provide service by e-mail.
20 I declare under penalty of perjury under the laws of the State of California that the above is
21 true and correct.
22 Executed on March 6, 2024, at Fremont, California.
23 Christina Perez
[Print Name of Person Executing Proof] [Signature]
24
25
26
27
28
PROOF OF SERVICE
Preview
1 JEFFREY E. TSAI (SBN 226081) jeff.tsai@us.dlapiper.com 2 KATHLEEN S. KIZER (SBN 246035) kathy.kizer@us.dlapiper.com 3 EMILY ROSE MARGOLIS (SBN 324089) 4 emily.margolis@us.dlapiper.com DLA PIPER LLP (US) 5 555 Mission Street, Suite 2400 San Francisco, California 94105-2933 6 Tel: 415.836.2500 | Fax: 415.836.2501 7 Attorneys for Defendants 8 CELESTE WHITE, DR. ROBERT WHITE, and THE VALLEY ROCK FOUNDATION 9 10 SUPERIOR COURT OF THE STATE OF CALIFORNIA 11 FOR THE COUNTY OF NAPA 12 13 LISA KEITH, an individual, CASE NO. 22CV001269 14 Plaintiff, 15 DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION TO COMPEL v. 16 FURTHER RESPONSES AND FOR CELESTE WHITE, an individual, ROBERT MONETARY SANCTIONS 17 WHITE, an individual, the VALLEY ROCK FOUNDATION, aka THE BAR 49 Date: March 19, 2024 18 FOUNDATION, a charitable organization, Time: 8:30 a.m. and DOES 1-50, INCLUSIVE, Judge: Hon. Scott R.L. Young 19 Dept.: B Defendants. 20 Complaint Filed: October 25, 2022 FAC Filed: March 8, 2023 21 Trial Date: April 2, 2024 22 23 24 25 26 27 28 -1- DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION TO COMPEL CASE NO. 22CV001269 1 COMES NOW Defendants, by and through undersigned counsel, in opposition to the 2 untimely and meritless Motion to Compel Further Responses (“Motion”) filed by Plaintiff Lisa 3 Keith. 4 I. INTRODUCTION 5 Plaintiff’s untimely and meritless motion should never have been brought. It is 6 procedurally defective and beyond remedy, and the Court need not inquire further. But even on the 7 merits, the motion is—at best—moot because there are no additional responsive records. 8 Plaintiff’s motion is an exercise in futility and has caused the wasteful use of resources. Plaintiff’s 9 Motion should be denied in its entirety. 10 First, Plaintiff’s motion is procedurally defective. Plaintiff noticed her Motion to be heard 11 after the March 13, 2024, deadline to hear fact discovery motions in this case, but Plaintiff failed 12 to file the required motion to reopen or extend fact discovery with a supporting meet and confer 13 declaration, both of which are mandatory for any attempt to have a fact discovery motion heard 14 after the cutoff. Without these prerequisites, the Court lacks discretion to even hear the Motion. 15 Second, even if Plaintiff had met the prerequisites to have her untimely Motion heard (she 16 has not), Plaintiff cannot show why any of the statutory factors weigh in favor of the Court 17 hearing the Motion after the cutoff. For example, Plaintiff has not shown that the discovery she 18 seeks is necessary for her case; she has not shown diligence in either pursuing that discovery or in 19 bringing this Motion; and her repetitive, meritless efforts to continue the trial and otherwise delay 20 this case prejudice Defendants. Plaintiff’s failure to address these factors is another reason for the 21 Court to deny Plaintiff’s Motion. 22 Third, even on the merits, Plaintiff’s motion is a meaningless detour. Singer has already 23 produced all documents responsive to the Subpoena. Singer and its counsel have explained this 24 to Plaintiff repeatedly—and do so again with this Opposition supported by evidence. Yet, without 25 any good-faith basis, Plaintiff continues to waste the time of the Court and a third-party entity in 26 seeking documents that do not exist. 27 Finally, Plaintiff’s Motion makes numerous misrepresentations that appear aimed at 28 creating artificial controversy to distract from the Motion’s absence of merit and Plaintiff’s lack of -2- DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION TO COMPEL CASE NO. 22CV001269 1 diligence in discovery. Not only should Plaintiff’s Motion be denied, but sanctions are warranted 2 here for her continued misuse of the discovery process. 3 II. FACTUAL AND PROCEDURAL BACKGROUND 4 A. Plaintiff’s Subpoena to Singer Associates Inc. 5 1. Plaintiff’s Deficient Consumer Records Notice 6 On December 20, 2023, Plaintiff served a Notice to Consumer on each of the Defendants 7 regarding the subpoena for business records directed at third-party Singer (the “Subpoena”). 8 (Declaration of Kathleen Kizer in support of Oppositions to Plaintiff’s Motion to Compel [“Kizer 9 Decl.”], ¶ 3.) Seven days later, on December 27, 2023, Plaintiff served the Subpoena on Singer’s 10 registered agent for service of process, Sharon Singer, at her home in Berkeley, California. 11 (Declaration of Sam Singer in support of Singer Associates Inc.’s Opposition to Motion to Compel 12 [“Singer Decl.”], ¶ 21.) Before then, Plaintiff made no attempt to serve Singer, whether at its place 13 of business in San Franscisco (which is open to the public during normal business hours) or upon 14 Ms. Singer at her place of residence (where she was regularly available). (Singer Decl., ¶¶ 16-21.) 15 Defendants objected to the Subpoena to third-party Singer because Plaintiff provided 16 insufficient notice under Code of Civil Procedure section 1985.3, which requires that consumers 17 receive ten days’ notice before service upon a custodian of records (if they are served by mail).1 18 (Kizer Decl., ¶ 3; Code Civ. Proc., §§ 1985.3, 1013(a).) Because of Defendants’ objection, Singer 19 did not produce documents responsive to the Subpoena on the January 24, 2024 deadline.2 (Kizer 20 Decl., ¶ 4; Singer Decl., ¶ 22.) 21 1 Plaintiff served this notice by mail, notwithstanding the parties’ entry into an electronic service agreement 22 in this case, in an apparent attempt to prevent Defendants from obtaining actual notice of the Subpoena during the winter holidays. (Kizer Decl. ¶ 3.) 23 2 Plaintiff and her counsel have themselves lodged the same Consumer Records Notice objections as to 24 discovery served by Defendants and prevented the production of subpoena records: 1. As to discovery served on Plaintiff’s prior counsel Dominic Campisi, Plaintiff and her counsel’s 25 objection resulted in Campisi refusing to produce documents. 2. As to discovery served on Plaintiff’s employer Sotheby’s Golden Gate International Realty, Plaintiff 26 and her counsel’s objection has resulted in an ongoing refusal by Sotheby’s to produce any documents responsive to an employment records subpoena served upon it on January 22, 2024 (which were due on 27 February 12). Moreover, Sotheby’s General Counsel has informed Defendants’ counsel that Sotheby’s will not produce any documents while any objections to any of the document requests is still 28 outstanding. (See Kizer Decl., ¶ 3.) -3- DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION TO COMPEL CASE NO. 22CV001269 1 2. Plaintiff’s Failed Attempts to Continue the Trial and Singer’s Production of all Documents Responsive to the Subpoena 2 3 Plaintiff filed her first ex parte application to continue the hearing on Defendants’ Motion 4 for Summary Judgment (“MSJ”) and trial on February 6, 2024.3 The purported reason for this 5 application was Singer’s lack of production in response to Plaintiff’s Subpoena. At the February 7 6 hearing on the application, Plaintiff’s counsel admitted that she did not realize until that hearing 7 that Plaintiff’s consumer notice had been deficient. (Kizer Decl., ¶ 3.) Nonetheless, Defendants’ 8 counsel offered to facilitate Singer’s production of documents by the following business day, 9 February 8.4 (Id., ¶ 2.) Singer produced all documents responsive to the subpoena directly to 10 Plaintiff through its counsel—Defendants’ counsel—the following business day, February 8. 5 (Id., 11 ¶ 2; Singer Decl. ¶ 24.) 12 Thereafter, during a meet-and-confer regarding Plaintiff’s objections, undersigned counsel 13 for Singer represented to Plaintiff’s counsel that Singer had produced all documents responsive to 14 Plaintiff’s subpoena.6 (Kizer Decl., ¶¶ 8-9, Exs. 1-2.) Nevertheless, Plaintiff filed her second ex 15 parte motion to continue the MSJ hearing and trial on February 14, again arguing a continuance 16 was needed because Singer failed to produce documents. (Id., ¶ 10.) At the hearing, Singer’s 17 counsel again represented to the Court and to Plaintiff’s counsel that Singer had made a full and 18 3 Plaintiff did not style the application as a trial continuance request. However, she sought a new MSJ 19 hearing date more than sixty days after the first day of trial. (Kizer Decl., ¶ 2.) 20 4 The Motion incorrectly identifies the date of Singer’s production as February 7. (Motion at ¶¶ 9, 11). The ex parte hearing was on February 7, and Singer’s production was made on February 8. The Court moved the MSJ 21 hearing date from March 1 to March 8 at the February 7 hearing because of scheduling conflicts that would have made both Judges Young and Smith unavailable on March 1. Thus, the docket shows the ex parte application as “granted” 22 but Plaintiff did not obtain the relief she sought in continuing the MSJ hearing by over sixty days. (Kizer Decl., ¶ 3.) 23 5 Plaintiff makes a mountain out of a molehill by repeatedly complaining that Ms. Kizer did not, at that hearing, announce that Defendants’ counsel was representing Singer in its response to the Subpoena. The information 24 was not intentionally concealed but rather the issue simply did not come up during that short hearing. (Kizer Decl. ¶ 5.) At the hearing on Plaintiff’s next attempt to continue the trial in this matter, on February 15, counsel for 25 Defendants clarified openly on the record that DLA Piper began representing Singer after it was served with the Subpoena on December 27. Thus, Plaintiff’s complaints that she still lacks this information are simply untrue. DLA 26 Piper forcefully repudiates any insinuation of impropriety that Plaintiff now desperately seeks to create in order to distract from her own lack of diligence here. 27 6 Because Plaintiff’s counsel objected to DLA Piper’s production of Singer’s documents on its behalf, Singer 28 also produced all 700+ pages of its responsive documents in hard copy to the deposition officer in Los Angeles along with an affidavit of Singer’s custodian of records. (Kizer Decl., ¶¶ 7, 13, Ex. 5.) -4- DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION TO COMPEL CASE NO. 22CV001269 1 complete production of documents responsive to the Subpoena on February 8.7 (Id.) Accordingly, 2 the Court denied the motion. (Id.) 3 Plaintiff now brings yet another motion based on her erroneous and unfounded belief that 4 Singer has not produced all documents responsive to the Subpoena. Plaintiff did not meet and 5 confer with counsel for Defendants prior to filing the instant Motion. (Kizer Decl., ¶ 11.) 6 B. Singer Has Produced All Documents Responsive to the Subpoena 7 Plaintiff complains, based on mere speculation, that Singer has withheld documents 8 responsive to Requests Nos. 5, 7, 8, 9, 10, 11, and 27. Singer has not done so. Rather, as Singer’s 9 counsel has repeatedly stated to both Plaintiff’s counsel and to the Court, Singer conducted a 10 diligent search and produced all documents responsive to the Subpoena, consisting of over 700 11 pages of material. (Singer Decl., ¶ 24; Kizer Decl., ¶¶ 2, 7-9, Exs. 1-2.) 12 1. Singer Has No Documents Responsive to Requests Nos. 5 and 7 13 Requests Nos. 5 and 7 call for certain social media posts. (See Lam Decl., Ex. 1) Singer 14 only used Twitter once to announce the August 2021 press release. (Singer Decl. ¶ 15.) Singer did 15 not retain a copy, screenshot, or print-out of that post (which Plaintiff printed and attached as an 16 exhibit to her FAC) or any other social media post. (Id.; FAC Ex. E.) As a result, Singer has no 17 documents responsive to Requests Nos. 5 or 7. (Singer Decl. ¶ 15.) 18 2. Singer Has No Documents Responsive to Requests Nos. 8 and 9 19 Requests Nos. 8 and 9 seek documents reflecting communications with Platinum Advisors 20 LLC and Kenwood Investments LLC that mention Plaintiff. (See Lam Decl., Ex. 1.) Both 21 Platinum Advisors LLC and Kenwood Investments LLC had limited involvement with the press 22 release at issue in this litigation. (See Kizer Decl., ¶ 12, Ex. 4 [Declaration of Darius Anderson]; 23 see also Singer Decl., ¶ 13.) No one at either entity played any role in drafting, reviewing, 24 revising, or distributing the Press Release. (Singer Decl., ¶ 13; Kizer Decl., Ex. 4 [Anderson 25 Decl.], ¶ 3.) Accordingly, after a diligent search, Singer has not found any documents responsive 26 7 27 Plaintiff’s Motion erroneously refers to its “counsel’s representation of inability to comply” with the Subpoena. (Motion at ¶ 15.) Singer’s counsel has made no such representation of an inability to comply. Singer’s 28 counsel has instead only represented repeatedly that Singer conducted a diligent, good faith search, collection, and production of all responsive documents. -5- DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION TO COMPEL CASE NO. 22CV001269 1 to either Request No. 8 or 9. (Singer Decl., ¶ 14.) 2 3. Singer Produced All Documents Responsive to Requests Nos. 10 and 11 3 Requests Nos. 10 and 11 seek documents reflecting communications with Platinum 4 Advisors LLC and Kenwood Investments LLC that mention “the lawsuit filed by LISA KEITH in 5 Napa County Superior Court, Case No. 26-36111.” (See Lam Decl., Ex. 1.) After a diligent search, 6 Singer produced all documents responsive to these requests, as well as other communications with 7 Platinum and/or Kenwood relating to the Whites’ media campaign. (Singer Decl., ¶ 13.) 8 4. Singer Has No Documents Responsive to Request No. 27 9 Request No. 27 seeks “All DOCUMENTS and COMMUNICATIONS RELATED to 10 metrics and/or measurements of the publication and/or dissemination of press releases and/or 11 social media posts, indicating any qualities such as the extent of dissemination, the number of 12 views, the number of clicks, or the likes or dislikes or any reaction to the press releases and/or 13 social media posts which specifically or generally make any mention of CELESTE WHITE 14 prevailing in a lawsuit against LISA KEITH.” (See Lam Decl., Ex. 1.) 15 While one news distribution service that Singer employed (EIN Presswire) provided 16 distribution reports to Singer for press releases issued about Defendants’ business and 17 philanthropic endeavors, the distribution services that Singer used for the press release at issue in 18 this litigation did not. (Singer Decl., ¶¶ 10-12.) Accordingly, after conducting a diligent search, 19 Singer has confirmed that it lacks documents responsive to Request No. 27. (Singer Decl., ¶ 12.) 20 III. ARGUMENT 21 A. Plaintiff’s Motion is Untimely 22 The Court need not reach the merits of the Motion because it is procedurally defective. It is 23 well-known law in California that “a party who notices a discovery motion to be heard after the 24 discovery motion cutoff date does not have a right to have the motion heard.” (Pelton-Shepherd 25 Indus., Inc. v. Delta Packaging Prods., Inc. (2008) 165 Cal.App.4th 1568, 1586, discussing Code 26 Civ. Proc., § 2024.020, subd. (a) [discussing Code Civ. Proc., § 2024.020, subd. (a)].) To have a 27 fact discovery motion heard after the fact discovery cutoff, a party must first bring a motion to 28 reopen or extend discovery under Code of Civil Procedure section 2024.050. (Id.) A motion to -6- DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION TO COMPEL CASE NO. 22CV001269 1 reopen must be accompanied by a meet and confer declaration. (Id. [citing Code Civ. Proc., § 2 2024.050, subd. (a)].) 3 In this case, the deadline to hear fact discovery motions is March 13. (See Code Civ. Proc., 4 § 1005; Local Rule 6.2.) Plaintiff noticed this Motion for hearing on March 19, well after the 5 cutoff. Yet, Plaintiff has not filed a motion to reopen or extend discovery as required under 6 Section 2024.050. Nor has Plaintiff filed the required meet-and-confer declaration, as also 7 required. (Code Civ. Proc., § 2024.050, subd. (a).) To be sure, Plaintiff did not meet and confer 8 with Defendants about reopening or extending fact discovery before filing this Motion. (Kizer 9 Decl., ¶ 11.) The Court need not consider the Motion any further and should deny it due to its 10 procedural defects. 11 B. Plaintiff Cannot Make the Required Showing to Have her Untimely Motion Heard After the Cutoff 12 13 Even if Plaintiff had complied with the statute requiring a motion to reopen or extend fact 14 discovery, the Court would still be required to deny Plaintiff’s request to have her motion heard 15 after the cutoff because Plaintiff cannot make the showing required by statute. (See Code Civ. 16 Proc., § 2024.050, subd. (b).) Upon the filing of a motion to reopen discovery, the Court is 17 required to consider the following factors, or other relevant matters, in determining whether to 18 reopen or extend fact discovery: (1) the necessity and reasons for the discovery; (2) the diligence 19 or lack of diligence of the party seeking the hearing of a discovery motion, and the reasons that the 20 discovery motion was not heard earlier; (3) any likelihood that permitting the discovery or hearing 21 the motion will prevent the case from going to trial on the date set, or otherwise interfere with the 22 trial calendar, or result in prejudice to any other party; (4) the length of time that has elapsed 23 between any date previously set, and the date presently set, for trial. (Code Civ. Proc., § 2024.050, 24 subd. (b)(1)-(4); see also Pelton-Shepherd, supra, 165 Cal.App.4th at 1586-87 [finding trial court 25 abused its discretion by hearing a fact discovery motion after the cutoff date, where the party 26 seeking the hearing did not file a motion to reopen or extend discovery and did not file a meet and 27 confer declaration].) 28 Here, even if Plaintiff had filed a motion to reopen, there is no legitimate basis for the -7- DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION TO COMPEL CASE NO. 22CV001269 1 Court to reopen fact discovery. 2 Necessity and Reasons for Discovery 3 Plaintiff has not and cannot explain why the discovery she seeks is necessary, in light of 4 repeated representations that Singer has already produced all documents responsive to Plaintiff’s 5 subpoena. Based on this fact alone, Plaintiff cannot show the discovery is necessary so as to 6 justify hearing this motion after the cutoff. 7 Diligence or Lack of Diligence of Party Seeking Hearing 8 Plaintiff’s abject failure with regard to diligence is two-fold here. First, Plaintiff did not 9 diligently seek discovery from Singer in the first place. Plaintiff has been aware of Singer’s 10 involvement in this case since at least October 2022, when she filed her Complaint, which 11 explicitly mentions Singer by name. Plaintiff could have sought discovery from Singer 12 immediately upon filing her Complaint. While Plaintiff attests that she first began attempting to 13 subpoena Singer in September 2023, she has provided no competent evidence of any such attempt 14 (for example, in the form of an affidavit from a process server, which is customary evidence of 15 service attempts that Plaintiff could easily have obtained if her purported service attempts actually 16 occurred).8 On the other hand, Singer has provided evidence, submitted again along with this 17 Opposition, that Plaintiff made no attempts to serve Singer until December 27, 2023, on which 18 date its agent for service of process was easily located and served and could have easily been 19 served earlier. (Singer Decl., ¶¶ 16-24.) 20 Plaintiff’s lack of diligence continued with regard to her filing this Motion. Singer’s 21 deadline to produce documents was January 24, 2024. Singer did not produce documents on that 22 date based on Defendants’ valid objection to the Subpoena. Instead of promptly moving to compel 23 Singer, Plaintiff instead twice attempted to continue the MSJ and trial dates. After those efforts 24 failed, and Singer produced all documents responsive to the subpoena on February 8, 2024, 25 Plaintiff still waited until February 23 to file this Motion—a full month after the deadline in the 26 8 27 Plaintiff’s Motion states that “Singer Associates dodged service for several months” and “it is reasonable to assume that Singer was intentionally dodging service at the behest of Defendants.” (Motion at ¶ 5, n.1). It is in fact not 28 reasonable to make such an assumption, in particular in light of zero evidence of any attempts to serve Singer before December 27. Singer, Defendants, and counsel for Singer and Defendants vehemently reject this baseless accusation. -8- DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION TO COMPEL CASE NO. 22CV001269 1 Subpoena. Plaintiff has not made, and cannot make, any showing of diligence for her delay in 2 bringing this Motion. Had Plaintiff exercised a degree of reasonable diligence, she could have had 3 the Motion heard before the cutoff.9 There is no reason for the Court to reward her dilatory 4 conduct. 5 Interference with Trial and Prejudice to other Parties 6 Plaintiff has already sought and failed to continue the trial date twice. Defendants would be 7 prejudiced by the Court’s hearing Plaintiff’s Motion after the cutoff because they are diligently 8 preparing for trial. (Kizer Decl., ¶ 15.) Defendants are eager to have this case heard and to put this 9 litigation behind them. Their right to have fact discovery motions heard by the March 13 deadline 10 would be violated by allowing this Motion to be heard after the cutoff for no good reason. (See 11 Pelton-Shepherd, supra, 165 Cal.App.4th at 1586.) 12 C. Singer Has Produced All Responsive Documents 13 As a merits issue, which the Court need not even reach, the Motion should be denied. 14 Singer has already made a full and complete production of documents responsive to the Subpoena 15 after conducting a diligent search for responsive records. (See generally Singer Decl.) Plaintiff’s 16 Motion points to particular document requests for which Plaintiff hopes additional documents are 17 in Singer’s possession. But Plaintiff’s magical thinking is not evidence, and it is not a basis to 18 grant a motion to compel.10 19 Plaintiff spends a great deal of her Motion describing the method and format of Singer’s 20 February 8 production, complaining that Singer’s counsel produced documents electronically 21 directly to Plaintiff’s counsel rather than to the deposition officer in paper format. (Motion at ¶¶ 9, 22 9 Plaintiff could have filed her motion to compel as late as February 20 to have it heard by March 13, but she 23 waited until February 23. (See Code Civ. Proc., § 1005; Local Rule 6.2.) Plaintiff’s lack of diligence generally is apparent in her late service of other discovery in this case, including third-party document subpoenas, third-party 24 deposition subpoenas, and written discovery requests on Defendants, all of which call for responses after the fact discovery cutoff. (Kizer Decl., ¶ 14.) Indeed, it became clear during a recent telephonic meet and confer that 25 Plaintiff’s counsel was not aware of the correct fact discovery cutoff date. (Id.) 10 26 Plaintiff inexplicably cites to Padron v. Watchtower Bible & Tract Soc. of New York, Inc. (2017) 16 Cal.App.5th 1246 for the proposition that a party must make a diligent search and reasonable inquiry to comply with a 27 document demand, and must produce responsive items in its possession, custody, or control. (See Motion at ¶ 17.) That case does not apply here as Singer is not a party to this litigation. And regardless, Singer has produced all 28 documents responsive to the Subpoena. (Singer Decl. ¶ 15.) -9- DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION TO COMPEL CASE NO. 22CV001269 1 13, 24-26.) This is a red herring, as not only did Singer produce all responsive documents 2 electronically directly to Plaintiff’s counsel, Singer also produced all responsive documents to 3 the deposition officer along with a custodial affidavit. (Kizer Decl., ¶¶ 7, 13, Ex. 5.) Plaintiff 4 omits these inconvenient facts from her moving papers in an apparent attempt to generate a faux 5 controversy on which to base her baseless Motion.11 6 D. The Court Should Issue Sanctions Because Plaintiff’s Motion is Harassing, Baseless, and Without Justification 7 8 Two statutes require imposition of sanctions against Plaintiff for bringing this Motion. (See 9 Code Civ. Proc., § 2025.480, subd. (j) [sanctions required for unsuccessful motion to compel]; 10 § 2024.050, subd. (c) [sanctions required for unsuccessful motion to reopen or extend discovery].) 11 Here, Plaintiff’s Motion lacks justification, let alone substantial justification. (See id. [“the Court 12 shall impose a monetary sanction under Section 7 . . . against any party, person, or attorney who 13 unsuccessfully makes or opposes a [motion to compel an answer or production/motion to extend 14 or to reopen discovery], unless it finds that the one subject to the sanction acted with substantial 15 justification or that other circumstances make the imposition of the sanction unjust”].) Instead, it 16 disregards the law, including statutory deadlines, misrepresents the facts, and wastes the Court’s, 17 Singer’s and Defendants’ time and resources. 18 Imposition of sanctions against Plaintiff in the amount of $4,000, and in favor of 19 Defendants, is necessary and just given that Plaintiff has knowingly flouted procedural 20 requirements designed to gatekeep against frivolous legal processes, has no merits-based reason to 21 prosecute a motion to compel, and Singer is not a party to this litigation otherwise subject to 22 discovery. (See Kizer Decl., ¶ 17.) 23 \\\ 24 \\\ 25 \\\ 26 11 27 In a further attempt to generate a faux controversy, Plaintiff complains ad nauseum that Defendants’ counsel did not explain during the short, focused hearing on Plaintiff’s first failed attempt to continue the MSJ hearing 28 and trial that it also represented Singer with respect to the Subpoena. The Court should not be misled by this irrelevant issue. -10- DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION TO COMPEL CASE NO. 22CV001269 1 IV. CONCLUSION 2 For the reasons stated above, Defendants respectfully request that the Court deny 3 Plaintiff’s Motion and impose monetary sanctions on Plaintiff in the amount of $4,000. 4 5 Dated: March 6, 2024 DLA PIPER LLP (US) 6 By: 7 JEFFREY E. TSAI 8 KATHLEEN S. KIZER EMILY ROSE MARGOLIS 9 Attorneys for Defendants 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -11- DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION TO COMPEL CASE NO. 22CV001269 1 PROOF OF SERVICE 2 STATE OF CALIFORNIA, COUNTY OF SAN FRANCISCO 3 I am employed in the County of San Francisco, State of California. I am over the age of 18 4 and not a party to the within action; my business address is: DLA Piper LLP (US), 555 Mission 5 Street, Suite 2400, San Francisco, CA 94105. 6 On March 6, 2024, I served the foregoing document(s) described as: 7 DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION TO COMPEL FURTHER RESPONSES AND FOR MONETARY SANCTIONS 8 on the following: 9 John S. Rueppel 10 Angie Lam 11 JOHNSTON, KINNEY & ZULAICA LLP 101 Montgomery Street, Suite 1600 12 San Francisco, California 94104 T: 415.693.0550 13 F: 415.693.0500 E: john@jkzllp.com 14 evan@jkzllp.com 15 Attorneys for Plaintiff Lisa Keith 16 17 I transmitted copies of the document(s) described above via e-mail to the persons at the 18 email addresses set forth above pursuant to the parties’ mutual agreement on or about March 21, 19 2023, to provide service by e-mail. 20 I declare under penalty of perjury under the laws of the State of California that the above is 21 true and correct. 22 Executed on March 6, 2024, at Fremont, California. 23 Christina Perez [Print Name of Person Executing Proof] [Signature] 24 25 26 27 28 PROOF OF SERVICE