Preview
1 John S. Rueppel (SBN: 267467)
Ann K. Kavanagh (SBN: 260526)
2 Angie Lam (SBN: 244719)
JOHNSTON, KINNEY & ZULAICA LLP
3 101 Montgomery Street, Suite 1600
San Francisco, California 94104
4 Telephone: (415) 693-0550
Facsimile: (415) 693-0500
5 Email: john@jkzllp.com
angie.lam@jkzllp.com
6
Attorneys for Plaintiff,
7 Lisa Keith
8
9
10 SUPERIOR COURT OF THE STATE OF CALIFORNIA
11 IN THE COUNTY OF NAPA
12 LISA KEITH, CASE NO: 22CV001269
13 Plaintiff, PLAINTIFF LISA KEITHS REPLY TO
DEFENDANTS’ OPPOSITION
14 v. PLAINTIFF, LISA KEITH’S NOTICE OF
MOTION AND MOTION TO COMPEL
15 CELESTE WHITE, an individual, ROBERT DEPOSITION OF PERSON MOST
WHITE, an individual, the VALLEY ROCK KNOWLEDGEABLE; FURTHER
16 FOUNDATION, aka THE BAR 49 RESPONSES; AND PRODUCTION OF
FOUNDATION, a charitable organization, and DOCUMENTS FROM PLATINUM
17 DOES 1-50, INCLUSIVE, ADVISORS, LLC AND KENWOOD
INVESTMENTS, LLC; MEMORANDUM
18 Defendants. OF POINTS AND AUTHORITIES IN
SUPPORT; AND FOR MONETARY
19 SANCTIONS
20 Date: March 19, 2024
Time: 8:30 a.m.
21 Judge: Hon. Scott R.L. Young
Dept.: B
22 Complaint Filed: October 25, 2022
FAC Filed: March 8, 2023
23 Trial Date: April 2, 2024
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PLAINTIFF LISA KEITH’S REPLY TO DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION TO COMPEL
1 I. SUMMARY OF REPLY
2 1. The burden of discovery is placed on nonparties if the parties to litigation do not possess
3 the material sought to be discovered. (Calcor Space Facility, Inc. v. Superior Court (1997) 53
4 Cal.App.4th 216, 225.)
5 2. Platinum Advisors LLC (“Platinum”) and Kenwood Investments, LLC (“Kenwood”)
6 are attempting to withhold evidence by arguing that:
7 a. Kenwood and Platinum are not obligated to produce for deposition the actual
8 “Person Most Knowledgeable” (“PMK”) because:
9 i. The person they did present (Mr. Fina) at deposition was “adequately
10 knowledgeable about the examination topics that Plaintiff actually noticed;” In spite of the fact that Mr.
11 Fina testified that his deposition preparation did not include any conversations with anyone other than
12 counsel (although he later testified that he had a conversation with Darius Anderson the day prior to
13 deposition.)
14 ii. Plaintiff somehow “waived her objections by not raising them during or
15 after the deposition, and the deposition questions at issue in the Motion were outside the scope of the
16 noticed deposition topics.” This argument is yet another example of Defendants’ continuous obfuscation.
17 There are no “deposition questions at issue in the Motion.” The issue is Platinum and Kenwood’s failure
18 to provide a true PMK, which is a failure to appear and not subject to objection at deposition or waiver;
19 and
20 iii. Plaintiff “impermissibly demands that a particular individual serve.”
21 Again, obfuscation. Plaintiff is not demanding a particular person, plaintiff is demanding the actual
22 PMK, whom they believe to be Darius Anderson based on Mr. Fina’s testimony.
23 b. Kenwood and Platinum are not obligated to produce further documents because
24 they are “unable to understand Plaintiff’s Motion as it relates to the Third Parties’ production of
25 documents. Documents.” In spite of Plaintiff’s Separate Statement that clearly sets forth the deficiencies
26 in their production.
27 c. Plaintiff’s Motion is procedurally flawed because:
28 i. Plaintiff failed to meet and confer. An allegation that is belied by the
2
PLAINTIFF LISA KEITH’S REPLY TO DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION TO COMPEL
1 evidence. Plaintiff is not obligated meet and confer on a motion to compel appearance at deposition, nor
2 to provide Kenwood and Platinum with “information as to alleged deficiencies” in Mr. Fina’s testimony;
3 Plaintiff has not objected to Mr. Fina’s testimony; Plaintiff has objected to the failure to produce an
4 actual PMK the issue on which Plaintiff attempted to meet and confer. Nor is Plaintiff obligated to meet
5 and confer on insufficient document production where the deponent fails to appear.
6 ii. Plaintiff’s Separate Statement does not mention the depositions at all, as
7 required per CRC 3.1345(a)(4). This rule applies to motions to compel answers at deposition. Plaintiff’s
8 motion is to compel appearance, so this rule does not apply.
9 iii. There is “confusion and uncertainty as to the issues in dispute and error
10 as to the available relief.” It is Kenwood and Platinum who are attempting to create confusion and
11 uncertainty. Again, Plaintiff’s Motion does not “complain of testimony…” Plaintiff’s has moved to
12 compel appearance by a PMK who has failed to appear, and for that PMK to provide full responses to
13 requests for documents.
14 II. LEGAL ARGUMENT
15 A. The Burden of Discovery is on Platinum, Kenwood and the Defendants to Produce
16 the Material Sought to be Discovered by Plaintiff.
17 3. In general, “any party may obtain discovery regarding any matter, not privileged, that is
18 relevant to the subject matter involved in the pending action, or to the determination of any motion made
19 in that action, if the matter itself is admissible in evidence or appears reasonably calculated to lead to the
20 discovery of admissible evidence (Code Civ. Proc., §2017.010.)
21 4. Code Civ. Proc., § 2025.230 clearly requires that the actual person with the most relevant
22 knowledge should be produced, not a second- or third-best option who has reviewed a smattering of
23 documents but has no personal knowledge or relevant expertise. Defendant’s attempt to put forward Mr.
24 Fina is not sufficient.
25 5. In Maldonado v. Superior Court (2002) 94 Cal.App.4th 1390, 1396, the court indicated
26 that “[i]f the subject matter of the questioning is clearly stated, the burden is on the entity, not the
27 examiner, to produce the right witnesses.” The court further explained that “…the duty is limited, as we
28 have said, to producing the most knowledgeable person currently in its employ and making sure that the
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PLAINTIFF LISA KEITH’S REPLY TO DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION TO COMPEL
1 person has access to information and documents reasonably available within the corporation.” (Id. at
2 1398.) The purpose is to prevent “considerable ‘buck-passing’ and ‘I don’t know’ answers at deposition.
3 “I don’t know” answers are precisely what Plaintiff received at Mr. Fina’s deposition.
4 6. In Calcor Space Facility, Inc. v. Superior Court (1997) 53 Cal.App.4th 216, 224, the court
5 provided that “Section 2017, subdivision (a) provides matters are subject to discovery “if the matter
6 either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of
7 admissible evidence. The burden rests upon the party seeking the discovery to provide evidence from
8 which the court may determine these conditions are met. 2031, subdivision (l), which applies to
9 document production requests served on a party, requires a party seeking to compel such production to
10 “set forth specific facts showing good cause justifying the discovery sought by the inspection demand…”
11 (Italics added.) “Section 2020, the statute at issue, contains no specific requirement. However, since both
12 sections are part of a single statutory scheme, and since it is unlikely the Legislature intended to place
13 greater burdens on a nonparty than on a party to the litigation, we read a similar requirement into the
14 latter section.” Thus, as between parties to litigation and nonparties, the burden of discovery should be
15 placed on the latter only if the former do not possess the material sought to be discovered.
16 7. According to Calcor, to meet this standard, a party seeking to compel production of
17 records from a nonparty must articulate specific facts justifying the discovery sought; it may not rely on
18 mere generalities. (Id. at 224.)
19 8. In the production of business records that was purportedly produced by Kenwood and
20 Platinum, there are almost no communications with Darius Anderson. Per the Affidavits of Custodian
21 Records for Kenwood and Platinum, the records were prepared only by searching the electronic
22 repository at Kenwood and Platinum. “A party cannot plead ignorance to information which can be
23 obtained from sources under his control. This includes a party’s lawyer, agents or employees, family
24 members and experts.” See Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 782. Furthermore, these items
25 need not be in the actual possession of a party but it must at least be within the party’s custody or control
26 pursuant to Code of Civ. Proc §2031.010. As the Defendants hired Darius Anderson and Kenwood and
27 Platinum, it would be reasonable that Kenwood and Platinum would have such communications.
28 9. The only explanation as to why Kenwood and Platinum are not willing to produce Darius
4
PLAINTIFF LISA KEITH’S REPLY TO DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION TO COMPEL
1 Anderson or perform a diligent search of anything but their “electronic repository” is because they seek
2 to withhold damaging evidence as to Defendants’ liability as to their breach of the non-disparagement
3 clause in the settlement agreement.
4 10. As previously stated, any party may obtain discovery regarding any matter that is not
5 privileged and is relevant to the subject matter involved in the pending action. Plaintiff has met the
6 standard seeking to compel production of records from a nonparty with specific facts justifying the
7 discovery sought. Good cause exists to justify the discovery sought from Kenwood and Platinum as they
8 participated with Singer Associates Inc. in publishing the at-issue press releases on behalf of the
9 Defendants. The discovery sought from Kenwood and Platinum is critical to Plaintiff's case-in-chief.
10 Such documents are relevant and necessary as it is very likely to reveal the extent and the scope of
11 damage the Plaintiff has sustained due to Defendants’ issuance of the two press releases at issue and will
12 reveal the extent of Defendants’ liability in terms of breaching the non-disparagement clause of the
13 settlement agreement. Such documents are evidence of how many times and where the at-issue press
14 releases were released. Plaintiff has attempted on numerous occasions to meet and confer but each
15 attempt has been frustrated due to Defendants’ counsels’ representation of Kenwood and Platinum
16 11. Despite being represented by Defendants’ counsel, Kenwood and Platinum cannot avoid
17 complying with such a defined scope of discovery requested by the Plaintiff nor deny the existence of
18 such documents.
19 12. Per Calcor, as Singer published the two at-issue press releases on behalf of the
20 Defendants, only Kenwood and Platinum would have access to the information and material sought to
21 be discovered by the Plaintiff. The burden of discovery must be placed on Kenwood and Platinum to
22 produce such relevant information.
23 13. Plaintiff does not have access to such specific and relevant information because Plaintiff
24 did not arrange for the two at-issue press releases to be published.
25 14. Plaintiff now has no other option but to pursue such pertinent and relevant discovery with
26 Kenwood and Platinum.
27 15. Thus, the Court must order Kenwood and Platinum to search and produce the documents
28 requested in Request Nos. 1, 2, 3, 8, 9, 10, and 24, as access to such documents is only within Kenwood
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PLAINTIFF LISA KEITH’S REPLY TO DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION TO COMPEL
1 and Platinum’s possession, custody, and control.
2 B. A Nonparty Deponent Making an Evasive Response to Discovery May be Punished
3 under Code of Civil Procedure § 2023.
4 16. In Sears, Roebuck and Co. v. National Union Fire Ins. Co. of Pittsburgh (2005) 131,
5 Cal.App.4th 1342, 1350, “Discovery from nonparties is governed by section 2020, and is primarily
6 carried out by way of subpoena. (§ 2020, subd. (a).) A nonparty deponent who violates a subpoena may
7 be punished under section 2023. (§ 2020, subd. (h).) Section 2023 provides for monetary sanctions based
8 on misuse of the discovery process (§ 2023, subds. (a), (b)(1)), including…making an evasive response
9 to discovery.”
10 17. As explained above, due to Kenwood and Platinum’s failure to produce an actual PMK,
11 and evasive responses as to relevant discovery pursuant to a subpoena, Plaintiff estimates that the fees
12 for the present motion, reviewing opposition and drafting reply, and oral argument, will be a minimum
13 of $5,000 based on time spent researching and drafting to-date.
14 18. Thus, the Court must grant Plaintiff’s motion in its entirety.
15 III. CONCLUSION
16 Plaintiff respectfully requests the Court to grant her motion in its entirety and issue an order
17 compelling Platinum and Kenwood to produce the documents requested, to produce person most
18 knowledgeable for deposition and award fee sanctions to Plaintiff.
19
20 Respectfully submitted,
21 JOHNSTON, KINNEY & ZULAICA LLP
22
23 Dated: March 14, 2024 By:
John S. Rueppel, Esq.
24 Angie Lam, Esq.
Attorneys for Plaintiff, Lisa Keith
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PLAINTIFF LISA KEITH’S REPLY TO DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION TO COMPEL
1 PROOF OF SERVICE
2 STATE OF CALIFORNIA, CITY OF ANTIOCH AND COUNTY OF CONTRA COSTA
3
I am employed in the City and County of San Francisco, State of California. I am over the age of
4 18 years and not a party to the within action; my business address is Johnston Kinney & Zulaica LLP,
101 Montgomery Street, Suite 1600, San Francisco, California 94104. My electronic business address is
5 carolina@jkzllp.com.
6 On March 15, 2024, I served the foregoing document(s):
7
• PLAINTIFF LISA KEITHS REPLY TO DEFENDANTS’OPPOSITION PLAINTIFF,
8 LISA KEITH’S NOTICE OF MOTION AND MOTION TO COMPEL DEPOSITION
OF PERSON MOST KNOWLEDGEABLE; FURTHER RESPONSES; AND
9 PRODUCTION OF DOCUMENTS FROM PLATINUM ADVISORS, LLC AND
KENWOOD INVESTMENTS, LLC; MEMORANDUM OF POINTS AND
10
AUTHORITIES IN SUPPORT; AND FOR MONETARY SANCTIONS
11
I served the documents on the person or persons listed below as follows:
12
Jeffrey E. Tsai
13 Kathleen S. Kizer
DLA PIPER LLP (US)
14 555 Mission Street, Suite 2400
San Francisco, CA 94105
15 Jeff.tsai@us.dlapiper.com
Katy.kizer@us.dlapiper.com
16 Attorneys for Defendants
17 [X] (BY EMAIL) Pursuant to Code of Civil Procedure § 1010.6, I caused the document(s) to be
18 electronically transmitted by me to the persons listed in the above email address(es). I did not receive
within a reasonable time after the transmission, any electronic message or other indication that the
19 transmission was unsuccessful.
20 I declare under penalty of perjury under the laws of the State of California that the foregoing is
true and correct.
21
22 Executed on March 15, 2024, at Antioch, California.
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25 Carolina Ramos
4883-3419-1533, v. 4
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PLAINTIFF LISA KEITH’S REPLY TO DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION TO COMPEL
Preview
1 John S. Rueppel (SBN: 267467) Ann K. Kavanagh (SBN: 260526) 2 Angie Lam (SBN: 244719) JOHNSTON, KINNEY & ZULAICA LLP 3 101 Montgomery Street, Suite 1600 San Francisco, California 94104 4 Telephone: (415) 693-0550 Facsimile: (415) 693-0500 5 Email: john@jkzllp.com angie.lam@jkzllp.com 6 Attorneys for Plaintiff, 7 Lisa Keith 8 9 10 SUPERIOR COURT OF THE STATE OF CALIFORNIA 11 IN THE COUNTY OF NAPA 12 LISA KEITH, CASE NO: 22CV001269 13 Plaintiff, PLAINTIFF LISA KEITHS REPLY TO DEFENDANTS’ OPPOSITION 14 v. PLAINTIFF, LISA KEITH’S NOTICE OF MOTION AND MOTION TO COMPEL 15 CELESTE WHITE, an individual, ROBERT DEPOSITION OF PERSON MOST WHITE, an individual, the VALLEY ROCK KNOWLEDGEABLE; FURTHER 16 FOUNDATION, aka THE BAR 49 RESPONSES; AND PRODUCTION OF FOUNDATION, a charitable organization, and DOCUMENTS FROM PLATINUM 17 DOES 1-50, INCLUSIVE, ADVISORS, LLC AND KENWOOD INVESTMENTS, LLC; MEMORANDUM 18 Defendants. OF POINTS AND AUTHORITIES IN SUPPORT; AND FOR MONETARY 19 SANCTIONS 20 Date: March 19, 2024 Time: 8:30 a.m. 21 Judge: Hon. Scott R.L. Young Dept.: B 22 Complaint Filed: October 25, 2022 FAC Filed: March 8, 2023 23 Trial Date: April 2, 2024 24 25 26 27 28 1 PLAINTIFF LISA KEITH’S REPLY TO DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION TO COMPEL 1 I. SUMMARY OF REPLY 2 1. The burden of discovery is placed on nonparties if the parties to litigation do not possess 3 the material sought to be discovered. (Calcor Space Facility, Inc. v. Superior Court (1997) 53 4 Cal.App.4th 216, 225.) 5 2. Platinum Advisors LLC (“Platinum”) and Kenwood Investments, LLC (“Kenwood”) 6 are attempting to withhold evidence by arguing that: 7 a. Kenwood and Platinum are not obligated to produce for deposition the actual 8 “Person Most Knowledgeable” (“PMK”) because: 9 i. The person they did present (Mr. Fina) at deposition was “adequately 10 knowledgeable about the examination topics that Plaintiff actually noticed;” In spite of the fact that Mr. 11 Fina testified that his deposition preparation did not include any conversations with anyone other than 12 counsel (although he later testified that he had a conversation with Darius Anderson the day prior to 13 deposition.) 14 ii. Plaintiff somehow “waived her objections by not raising them during or 15 after the deposition, and the deposition questions at issue in the Motion were outside the scope of the 16 noticed deposition topics.” This argument is yet another example of Defendants’ continuous obfuscation. 17 There are no “deposition questions at issue in the Motion.” The issue is Platinum and Kenwood’s failure 18 to provide a true PMK, which is a failure to appear and not subject to objection at deposition or waiver; 19 and 20 iii. Plaintiff “impermissibly demands that a particular individual serve.” 21 Again, obfuscation. Plaintiff is not demanding a particular person, plaintiff is demanding the actual 22 PMK, whom they believe to be Darius Anderson based on Mr. Fina’s testimony. 23 b. Kenwood and Platinum are not obligated to produce further documents because 24 they are “unable to understand Plaintiff’s Motion as it relates to the Third Parties’ production of 25 documents. Documents.” In spite of Plaintiff’s Separate Statement that clearly sets forth the deficiencies 26 in their production. 27 c. Plaintiff’s Motion is procedurally flawed because: 28 i. Plaintiff failed to meet and confer. An allegation that is belied by the 2 PLAINTIFF LISA KEITH’S REPLY TO DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION TO COMPEL 1 evidence. Plaintiff is not obligated meet and confer on a motion to compel appearance at deposition, nor 2 to provide Kenwood and Platinum with “information as to alleged deficiencies” in Mr. Fina’s testimony; 3 Plaintiff has not objected to Mr. Fina’s testimony; Plaintiff has objected to the failure to produce an 4 actual PMK the issue on which Plaintiff attempted to meet and confer. Nor is Plaintiff obligated to meet 5 and confer on insufficient document production where the deponent fails to appear. 6 ii. Plaintiff’s Separate Statement does not mention the depositions at all, as 7 required per CRC 3.1345(a)(4). This rule applies to motions to compel answers at deposition. Plaintiff’s 8 motion is to compel appearance, so this rule does not apply. 9 iii. There is “confusion and uncertainty as to the issues in dispute and error 10 as to the available relief.” It is Kenwood and Platinum who are attempting to create confusion and 11 uncertainty. Again, Plaintiff’s Motion does not “complain of testimony…” Plaintiff’s has moved to 12 compel appearance by a PMK who has failed to appear, and for that PMK to provide full responses to 13 requests for documents. 14 II. LEGAL ARGUMENT 15 A. The Burden of Discovery is on Platinum, Kenwood and the Defendants to Produce 16 the Material Sought to be Discovered by Plaintiff. 17 3. In general, “any party may obtain discovery regarding any matter, not privileged, that is 18 relevant to the subject matter involved in the pending action, or to the determination of any motion made 19 in that action, if the matter itself is admissible in evidence or appears reasonably calculated to lead to the 20 discovery of admissible evidence (Code Civ. Proc., §2017.010.) 21 4. Code Civ. Proc., § 2025.230 clearly requires that the actual person with the most relevant 22 knowledge should be produced, not a second- or third-best option who has reviewed a smattering of 23 documents but has no personal knowledge or relevant expertise. Defendant’s attempt to put forward Mr. 24 Fina is not sufficient. 25 5. In Maldonado v. Superior Court (2002) 94 Cal.App.4th 1390, 1396, the court indicated 26 that “[i]f the subject matter of the questioning is clearly stated, the burden is on the entity, not the 27 examiner, to produce the right witnesses.” The court further explained that “…the duty is limited, as we 28 have said, to producing the most knowledgeable person currently in its employ and making sure that the 3 PLAINTIFF LISA KEITH’S REPLY TO DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION TO COMPEL 1 person has access to information and documents reasonably available within the corporation.” (Id. at 2 1398.) The purpose is to prevent “considerable ‘buck-passing’ and ‘I don’t know’ answers at deposition. 3 “I don’t know” answers are precisely what Plaintiff received at Mr. Fina’s deposition. 4 6. In Calcor Space Facility, Inc. v. Superior Court (1997) 53 Cal.App.4th 216, 224, the court 5 provided that “Section 2017, subdivision (a) provides matters are subject to discovery “if the matter 6 either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of 7 admissible evidence. The burden rests upon the party seeking the discovery to provide evidence from 8 which the court may determine these conditions are met. 2031, subdivision (l), which applies to 9 document production requests served on a party, requires a party seeking to compel such production to 10 “set forth specific facts showing good cause justifying the discovery sought by the inspection demand…” 11 (Italics added.) “Section 2020, the statute at issue, contains no specific requirement. However, since both 12 sections are part of a single statutory scheme, and since it is unlikely the Legislature intended to place 13 greater burdens on a nonparty than on a party to the litigation, we read a similar requirement into the 14 latter section.” Thus, as between parties to litigation and nonparties, the burden of discovery should be 15 placed on the latter only if the former do not possess the material sought to be discovered. 16 7. According to Calcor, to meet this standard, a party seeking to compel production of 17 records from a nonparty must articulate specific facts justifying the discovery sought; it may not rely on 18 mere generalities. (Id. at 224.) 19 8. In the production of business records that was purportedly produced by Kenwood and 20 Platinum, there are almost no communications with Darius Anderson. Per the Affidavits of Custodian 21 Records for Kenwood and Platinum, the records were prepared only by searching the electronic 22 repository at Kenwood and Platinum. “A party cannot plead ignorance to information which can be 23 obtained from sources under his control. This includes a party’s lawyer, agents or employees, family 24 members and experts.” See Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 782. Furthermore, these items 25 need not be in the actual possession of a party but it must at least be within the party’s custody or control 26 pursuant to Code of Civ. Proc §2031.010. As the Defendants hired Darius Anderson and Kenwood and 27 Platinum, it would be reasonable that Kenwood and Platinum would have such communications. 28 9. The only explanation as to why Kenwood and Platinum are not willing to produce Darius 4 PLAINTIFF LISA KEITH’S REPLY TO DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION TO COMPEL 1 Anderson or perform a diligent search of anything but their “electronic repository” is because they seek 2 to withhold damaging evidence as to Defendants’ liability as to their breach of the non-disparagement 3 clause in the settlement agreement. 4 10. As previously stated, any party may obtain discovery regarding any matter that is not 5 privileged and is relevant to the subject matter involved in the pending action. Plaintiff has met the 6 standard seeking to compel production of records from a nonparty with specific facts justifying the 7 discovery sought. Good cause exists to justify the discovery sought from Kenwood and Platinum as they 8 participated with Singer Associates Inc. in publishing the at-issue press releases on behalf of the 9 Defendants. The discovery sought from Kenwood and Platinum is critical to Plaintiff's case-in-chief. 10 Such documents are relevant and necessary as it is very likely to reveal the extent and the scope of 11 damage the Plaintiff has sustained due to Defendants’ issuance of the two press releases at issue and will 12 reveal the extent of Defendants’ liability in terms of breaching the non-disparagement clause of the 13 settlement agreement. Such documents are evidence of how many times and where the at-issue press 14 releases were released. Plaintiff has attempted on numerous occasions to meet and confer but each 15 attempt has been frustrated due to Defendants’ counsels’ representation of Kenwood and Platinum 16 11. Despite being represented by Defendants’ counsel, Kenwood and Platinum cannot avoid 17 complying with such a defined scope of discovery requested by the Plaintiff nor deny the existence of 18 such documents. 19 12. Per Calcor, as Singer published the two at-issue press releases on behalf of the 20 Defendants, only Kenwood and Platinum would have access to the information and material sought to 21 be discovered by the Plaintiff. The burden of discovery must be placed on Kenwood and Platinum to 22 produce such relevant information. 23 13. Plaintiff does not have access to such specific and relevant information because Plaintiff 24 did not arrange for the two at-issue press releases to be published. 25 14. Plaintiff now has no other option but to pursue such pertinent and relevant discovery with 26 Kenwood and Platinum. 27 15. Thus, the Court must order Kenwood and Platinum to search and produce the documents 28 requested in Request Nos. 1, 2, 3, 8, 9, 10, and 24, as access to such documents is only within Kenwood 5 PLAINTIFF LISA KEITH’S REPLY TO DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION TO COMPEL 1 and Platinum’s possession, custody, and control. 2 B. A Nonparty Deponent Making an Evasive Response to Discovery May be Punished 3 under Code of Civil Procedure § 2023. 4 16. In Sears, Roebuck and Co. v. National Union Fire Ins. Co. of Pittsburgh (2005) 131, 5 Cal.App.4th 1342, 1350, “Discovery from nonparties is governed by section 2020, and is primarily 6 carried out by way of subpoena. (§ 2020, subd. (a).) A nonparty deponent who violates a subpoena may 7 be punished under section 2023. (§ 2020, subd. (h).) Section 2023 provides for monetary sanctions based 8 on misuse of the discovery process (§ 2023, subds. (a), (b)(1)), including…making an evasive response 9 to discovery.” 10 17. As explained above, due to Kenwood and Platinum’s failure to produce an actual PMK, 11 and evasive responses as to relevant discovery pursuant to a subpoena, Plaintiff estimates that the fees 12 for the present motion, reviewing opposition and drafting reply, and oral argument, will be a minimum 13 of $5,000 based on time spent researching and drafting to-date. 14 18. Thus, the Court must grant Plaintiff’s motion in its entirety. 15 III. CONCLUSION 16 Plaintiff respectfully requests the Court to grant her motion in its entirety and issue an order 17 compelling Platinum and Kenwood to produce the documents requested, to produce person most 18 knowledgeable for deposition and award fee sanctions to Plaintiff. 19 20 Respectfully submitted, 21 JOHNSTON, KINNEY & ZULAICA LLP 22 23 Dated: March 14, 2024 By: John S. Rueppel, Esq. 24 Angie Lam, Esq. Attorneys for Plaintiff, Lisa Keith 25 26 27 28 6 PLAINTIFF LISA KEITH’S REPLY TO DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION TO COMPEL 1 PROOF OF SERVICE 2 STATE OF CALIFORNIA, CITY OF ANTIOCH AND COUNTY OF CONTRA COSTA 3 I am employed in the City and County of San Francisco, State of California. I am over the age of 4 18 years and not a party to the within action; my business address is Johnston Kinney & Zulaica LLP, 101 Montgomery Street, Suite 1600, San Francisco, California 94104. My electronic business address is 5 carolina@jkzllp.com. 6 On March 15, 2024, I served the foregoing document(s): 7 • PLAINTIFF LISA KEITHS REPLY TO DEFENDANTS’OPPOSITION PLAINTIFF, 8 LISA KEITH’S NOTICE OF MOTION AND MOTION TO COMPEL DEPOSITION OF PERSON MOST KNOWLEDGEABLE; FURTHER RESPONSES; AND 9 PRODUCTION OF DOCUMENTS FROM PLATINUM ADVISORS, LLC AND KENWOOD INVESTMENTS, LLC; MEMORANDUM OF POINTS AND 10 AUTHORITIES IN SUPPORT; AND FOR MONETARY SANCTIONS 11 I served the documents on the person or persons listed below as follows: 12 Jeffrey E. Tsai 13 Kathleen S. Kizer DLA PIPER LLP (US) 14 555 Mission Street, Suite 2400 San Francisco, CA 94105 15 Jeff.tsai@us.dlapiper.com Katy.kizer@us.dlapiper.com 16 Attorneys for Defendants 17 [X] (BY EMAIL) Pursuant to Code of Civil Procedure § 1010.6, I caused the document(s) to be 18 electronically transmitted by me to the persons listed in the above email address(es). I did not receive within a reasonable time after the transmission, any electronic message or other indication that the 19 transmission was unsuccessful. 20 I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. 21 22 Executed on March 15, 2024, at Antioch, California. 23 24 25 Carolina Ramos 4883-3419-1533, v. 4 26 27 28 7 PLAINTIFF LISA KEITH’S REPLY TO DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION TO COMPEL