Preview
1 CRAIG D. BRAUN, State Bar No. 166519
SAM VAN EERDEN, State Bar No. 283069
2 BRAUN GOSLING, A LAW CORPORATION
3 1620 Mill Rock Way, Suite 400
Bakersfield, CA 93311
4 Telephone: (661) 663-8300
Facsimile: (661) 663-8388
5 E-Mail: cbraun@braungosling.com
6
Attorneys for CHRIS JOHNSTON and
7 LIVE.RESIDE LLC
8 SUPERIOR COURT OF THE STATE OF CALIFORNIA
9
COUNTY OF KERN – METROPOLITAN DIVISION
10
CHRIS JOHNSTON, an individual, Case No. BCV-19-103089-TSC
11
12 Plaintiff, UNLIMITED CIVIL CASE
13 vs. DECLARATION OF SAM VAN EERDEN
IN SUPPORT OF MOTION TO COMPEL
14 JAMES McKAY, an individual; FURTHER RESPONSES OF VIRGINIA
15 et al., MCKAY TO DEMANDS FOR
INSPECTION AND COPYING OF
16 Defendants, DOCUMENTS, SET ONE
17 and [concurrently filed with Notice of Motion and
18 Motion; Separate Statement of Demands and
MILLENNIUM HOMES, LLC, a California Responses in Dispute; Request for Judicial
19 limited liability company; Notice]
et al.,
20 DATE: May 2, 2024
21 Nominal Defendants. TIME: 8:30 a.m.
DEPT: 17
22
ASSIGNED FOR ALL PURPOSES TO
23 AND RELATED CROSS-ACTIONS. JUDGE: Hon. Thomas S. Clark
24 DEPARTMENT: 17
COMPLAINT FILED: October 29, 2019
25 TRIAL DATE: November 4, 2024
26
I, Sam Van Eerden, declare as follows:
27
1. I am an attorney at law duly licensed to practice laws in all courts of the State of
28
1
DECLARATION OF SAM VAN EERDEN IN SUPPORT OF MOTION TO COMPEL
FURTHER RESPONSES OF VIRGINIA MCKAY TO DEMANDS FOR INSPECTION AND
COPYING OF DOCUMENTS, SET ONE
1 California.
2 2. I am an associate with the firm of Braun Gosling, A Law Corporation, attorneys of
3 record for the Plaintiff in the above-captioned matter. The facts set forth in this Declaration are
4 known by me personally to be true, and if called as a witness I could and would competently
5 testify thereto.
6 3. I prepared the motion to compel further responses to demands for inspection and
7 copying of documents, set one (“Motion”), as well as the accompanying separate statement of
8 demands and responses in dispute, the within declaration, and the concurrently filed Request for
9 Judicial Notice. I also assisted in the meet and confer process related to this discovery, including
10 the drafting of the meet and confer letter dated January 2, 2024.
11 4. On October 27, 2023, I caused a first set of Demands for Inspection and Copying of
12 Documents (“Demands”) to Virginia McKay (“McKay”), which was served on her via mail
13 (USPS) that same day. (A true and correct copy of the Demands is attached hereto as Exhibit
14 “A”.)
15 5. McKay provided responses to the Demands on December 1, 2023 (“Response”). (A
16 true and correct copy of the responses is attached hereto as Exhibit “B”.)
17 6. Upon review of the Responses, it was discovered that MCKAY had provided
18 deficient Responses (no documents were produced with respect to Demand No. 2) and asserted
19 unmeritorious objections.
20 7. I sent McKay’s counsel, Brian Hill, a meet and confer letter on January 2, 2024,
21 pointing out deficiencies in the Responses, including in McKay’s response to Demand 2. That
22 same letter requested that McKay’s provide further/amended code-compliant responses that did
23 not hide behind baseless objections. (A true and correct copy of this meet and confer letter is
24 attached hereto as Exhibit “C”.)
25 8. Mr. Hill and I had several e-mail exchanges discussing and agreeing to extend
26 deadlines for McKay to provide further/amended response to the Demands, and to extend the
27 deadline for Johnston to file motion to compel further discovery responses. Our meet and confer
28
2
DECLARATION OF SAM VAN EERDEN IN SUPPORT OF MOTION TO COMPEL
FURTHER RESPONSES OF VIRGINIA MCKAY TO DEMANDS FOR INSPECTION AND
COPYING OF DOCUMENTS, SET ONE
1 communication also included multiple phone calls during which counsel laid out their positions
2 with respect to the Special Interrogatory that is the subject of this motion.
3 9. Ultimately McKay did not provide any additional response or documents with
4 respect to Demand No. 2. McKay also did not identify any legally protected privacy interest that
5 would justify failing to comply with Demand No. 2. Additionally, while McKay indicated that
6 Demand No. 2 invaded privacy interests, McKay did not provide a privilege log justifying
7 McKay’s refusal to produce any documents.
8 10. By stipulation of counsel for the parties, the current deadline to file the Motion to
9 Compel related to the Interrogatories is March 22, 2024. (A true and correct copy of the email
10 exchange confirming this is attached hereto as Exhibit “D”.)
11 11. As a result of defendant McKay’s failure to comply with the discovery process,
12 Plaintiff has incurred reasonable attorney fees and costs in connection with the Motion, including
13 for the time I spent preparing this motion.
14 12. I spent a total of 2 hours of attorney time in the research and preparation of this
15 motion (including the related concurrent filings).
16 13. I spent a total of .6 hours meeting and conferring with counsel in regards to the
17 Demands.
18 14. My hourly rate in this matter is $395.00.
19 15. The cost of the filing of this motion is $60.
20 16. I have therefore incurred a total of $1,087.00 in attorney fees and costs in
21 connection with preparing this motion on behalf of the Plaintiff, not including time for the hearing
22 on the Motion.
23 I declare under penalty of perjury under the laws of the State of California that the
24 foregoing is true and correct.
25 Executed this 22nd day of March, 2024, at Bakersfield, California.
26
27 _________________________________
SAM VAN EERDEN
28
3
DECLARATION OF SAM VAN EERDEN IN SUPPORT OF MOTION TO COMPEL
FURTHER RESPONSES OF VIRGINIA MCKAY TO DEMANDS FOR INSPECTION AND
COPYING OF DOCUMENTS, SET ONE
EXHIBIT "A"
i 1 CRAIG D. BRAUN, State Bar No. 166519
SAM VAN EERDEN, State Bar No. 283069
2 BRAUN GOSLING, A LAW CORPORATION
1620 Mill Rock Way, Suite 400
3
Bakersfield, CA 93311
4 Telephone: (661) 663-8300
Facsimile: (661) 663-8388
5 E-Mail: svaneerden@braungosling.com
6
Attorneys for CHRIS JOHNSTON and
7 LIVE.RESIDE LLC
8
9 SUPERIOR COURT OF THE STATE OF CALIFORNIA
10
COUNTY OF KERN - METROPOLITAN DIVISION
11
CHRIS JOHNSTON, an individual, Case No. BCV-19-103089-TSC
12
13 Plaintiff, UNLIMITED CIVIL CASE
14 vs. FIRST SET OF DEMANDS FOR
INSPECTION AND COPYING OF
15 DOCUMENTS TO VIRGINIA MCKAY
JAMES McKAY, an individual;
16 et al.,
17 Defendants,
18
and
19
MILLENNIUM HOMES, LLC, a California
20 limited liability company;
21 et al.,
22 Nominal Defendants.
23 ASSIGNED FOR ALL PURPOSES TO
24 AND RELATED CROSS-ACTIONS. JUDGE: Hon. Thomas S. Clark
DEPARTMENT: 17
25 COMPLAINT FILED: October 29, 2019
_ _ _ __ _ _ _ __ _ _ _ ______, TRIAL DATE: May 13, 2024
26
PROPOUNDING PARTY: CHRIS JOHNSTON
27
RESPONDING PARTY: VIRGINIA McKAY
28
SET NUMBER ONE
1
FIRST SET OF DEMANDS FOR INSPECTION AND COPYING OF DOCUMENTS TO
VIRGINIA MCKAY
1 TO VIRGINIA McKAY AND HER ATTORNEYS OF RECORD:
2 Propounding Party, CHRIS JOHNSTON, the plaintiff and a cross-defendant in the within
3 cause, demands that responding party, VIRGINIA McKAY, a defendant in the within cause,
4 produce for inspection and copying the following documents or categories of documents in his
5 possession, custody, or control. The documents or categories of documents must be produced on
6 December 8, 2023, at 10:00 a.m. at Braun Gosling, A Law Corporation, 1620 Mill Rock Way,
7 Suite 400, Bakersfield, California, 93311. Pursuant to Code of Civil Procedure, Section 2031.260,
8 responding party is required to serve a written response to this First Set of Demands for Inspection
9 and Copying of Documents within 30 days from the date of service of this demand.
10 DEMANDS
11 Produce:
12 1. All DOCUMENTS identified by McKAY in response to First Set Of Special
13 Interrogatories to Virginia McKay served concurrently herewith. (For purposes of this
14 set of Demands for Inspection and Copying of Documents, the terms "DOCUMENT"
15 and "DOCUMENTS" mean a "WRITING" as defined in Evidence Code, Section 250,
16 whether such "WRITING" is written material, typed, printed, handwritten or otherwise
17 created, and encompasses all information electronically stored in data processing
18 machines and computers; the term "McKAY" means Virginia McKay a defendant in
19 the within cause, as well as anyone acting on her behalf.)
20 2. All bank account statements for the period of January 1, 2017 through January 1, 2021
21 for any and all bank accounts owned by or maintained for the benefit of Calbase, LLC.
22 (This request is intended to include, but is not limited to, statements related to the
23 business checking account in the name of Calbase, LLC, with an account number
24 ending in 1677.)
25 Dated: October 27, 2023 BRAUN GOSLING,
26
A LAW COR1'0RA7
27
By:
28 S AN EERDEN, Attorney for CHRIS
JOHNSTON and LIVE.RESIDE LLC
2
FIRST SET OF DEMANDS FOR INSPECTION AND COPYING OF DOCUMENTS TO
VIRGINIA MCKAY
POS-030
ATTORNEY OR PARTY WITHOUT ATTORNEY (Name, State Bar number, and address): FOR COURT USE ONLY
SAM VAN EERDEN SBN 283069
BRAUN GOSLING, A LAW CORPORATION
1620 Mill Rock Way, Suite 400
Bakersfield, CA 93311
TELEPHONE NO.: (661) 663-8300 FAXNO(Optional) (661) 663-8388
E-MAIL ADDRESS (Optional): svaneerden@braungosling.com
ATTORNEY FOR (Name): Plaintiff
SUPERIOR COURT OF CALIFORNIA, COUNTY OF Kem
STREET ADDRESS: 1415 TruxtunAvenue
MAILING ADDRESS:
Bakersfield, CA 93301
CITY AND ZIP CODE:
BRANCH NAME:Metropolitan Division
PETITIONER/PLAINTIFF: Chns Johnston an Individual
RESPONDENT/DEFENDANT: James McKay, an Individual, et al.
CASE NUMBER:
PROOF OF SERVICE BY FIRST-CLASS MAIL- CIVIL
BCV-19-103089-TSC
(Do not use this Proof of Service to show service of a Summons and Complaint.)
1. I am over 18 years of age and not a party to this action. I am a resident of or employed in the county where the mailing
took place.
2. My residence or business address is:
Braun Gosling, A Law Corporation
1620 Mill Rock Way Suite 400
Bakersfield, CA 93311
3. On (date) : October 27, 2023 I mailed from (city and state): Bakersfield, CA
the following documents (specify):
FIRST SET OF DEMANDS FOR INSPECTION AND COPYING OF DOCUMENTS TO VIRGINIA McKAY
D The documents are listed in the Attachment to Proof of Service by First-Class Mail - Civil (Documents Served)
(form POS-030(O)).
4. I served the documents by enclosing them in an envelope and(check one):
a. D depositing the sealed envelope with the United States Postal Service with the postage fully prepaid.
b. IZI placing the envelope for collection and mailing following our ordinary business practices. I am readily familiar with this
business's practice for collecting and processing correspondence for mailing. On the same day that correspondence is
placed for collection and mailing, it Is deposited in the ordinary course of business with the United States Postal Service in
a sealed envelope with postage fully prepaid.
5. The envelope was addressed and mailed as follows:
a. Name of person served: T. Scott Belden, Esq.
b. Address of person served:
T. Scott Belden, Esq.
Belden Blaine Raytis, LLP
P.O. Box 9129
Bakersfield, CA 93389
D The name and address of each person to whom I mailed the documents is listed in the Attachment to Proof of Service
by First-Class Mail-Civil (Persons Served) (POS-030(P)).
I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct.
:::v:::::::,2023
(TYPE OR PRINT NAME OF PERSON COMPLETING TH IS FORM)
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Form Approved for Optlonal Use PROOF OF SERVICE BY FIRST-CLASS MAIL - CIVIL Code of Civil Procedure.§§ 1013, 1013a
Judicial Council of California • www.courtinfo.ca.gov
POS-030 [New January 1, 2005) C[B" i Essential (Proof of Service)
ceb.com : 0 Forms· Johnston, Chris
EXHIBIT "B"
1 T. Scott Belden (SBN 184387)
scott@bbr.law
2 Brian J. Hill (SBN 343167)
brian@bbr.law
3 BELDEN BLAINE RAYTIS, LLP
5016 California Avenue, Suite 3
4 Bakersfield, California 93309
Telephone: (661) 864-7826
5 Facsimile: (661) 878-9797
6 Attorneys for JAMES MCKAY; HIGHER GROUNDS SOLUTIONS, INC. (erroneously sued
and served in Plaintiff’s Complaint as “HIGHER GROUND SOLUTIONS, INC.”); CALBASE
7 LLC; CHARLOTTE MCKAY; AND VIRGINIA MCKAY
8
SUPERIOR COURT FOR THE STATE OF CALIFORNIA
9
COUNTY OF KERN—METROPOLITAN DIVISION
10
Case No. BCV-19-103089-TSC
11 CHRIS JOHNSTON, an individual,
12 Plaintiffs, Defendant/Cross-Complainant Virginia
McKay’s Response to Demand for
13 v. Inspection and Copying of Documents,
JAMES McKAY, an individual; Set One.
14
CHARLOTTE McKAY, an individual;
15 HIGHER GROUND SOULTIONS, INC., a
Nevada corporation;
16 CALBASE LLC, a California limited liability
company; VIRGINIA McKAY, an individual;
17 AND DOES 1 through 100, inclusive,
18 Defendants.
19 And
20 MILLENNIUM HOMES, LLC, a California
limited liability company;
21 MILLENNIUM HOLDINGS, LLC, a
California limited liability company;
22 TARINA HOMES, INC., a California
corporation;
23 WEST COAST SIP GENERAL PARTNER,
LLC, a California limited liability company;
24 MH FORTY FOUR, LLC, a California limited
liability company; and
25 TOP GREEN SOLUTIONS, LLC, a
California limited liability company,
26
Nominal Defendants.
27
28 Relate Cross-Action(s)
1 Charlotte McKay’s Response to Demand for Inspection, Set
One
1 PROPOUNDING PARTY: CHRIS JOHNSTON
2 RESPONDING PARTY: VIRGINIA MCKAY
3 SET NUMBER: ONE
4 PRELIMINARY STATEMENT
5 VIRGINIA MCKAY (“Responding Party”) bases these responses on a diligent
6 investigation of the facts of this case conducted by Responding Party and its counsel. Relevant
7 information may exist that is not yet known to Responding Party and relevant documents may
8 exist that Responding Party has not yet located, identified, or reviewed in any detail. For those
9 reasons, these responses only reflect Responding Party’s current understanding, belief, and
10 knowledge about the subject matter of the Requests.
11 These responses are not an admission or representation that further relevant documents
12 do not exist. Responding Party anticipates that further documents may be discovered or
13 identified. Subject to the objections asserted herein, Responding Party is responding in good
14 faith to the requests based upon information presently available to it within the time limitations
15 that the Code and these requests impose. These responses should not be construed to prejudice
16 the right of Responding Party to utilize any additional evidence that may be discovered or
17 developed. Responding Party reserves the right to supplement, alter, or amend any of the
18 responses provided herein up to and including the first day of trial based upon subsequently
19 discovered evidence.
20 No incidental or implied admissions are intended in these responses. The fact that
21 Responding Party has responded to any part or all of any particular request is not an admission
22 that Responding Party accepts or admits the existence of any fact set forth or assumed by such
23 request, or that such request constitutes admissible evidence. The fact that Responding Party
24 has answered any part or all of any request is not intended to be and shall not be construed to
25 be a waiver by Responding Party of all objections or any part of any objection to any such
26 request.
27
28
2 Charlotte McKay’s Response to Demand for Inspection, Set
One
1 Responding Party intends these responses to be consistent with and to be read
2 consistent with Responding Party’s previous and subsequent discovery responses and any
3 apparent conflict between and/or among them is purely unintentional.
4 RESPONSE TO DEMAND FOR INPSECTION
5 REQUEST FOR DEMAND FOR INSPECTION NO. 1:
6 All DOCUMENTS identified by MCKAY in response to First Set Of Special
7 Interrogatories to Virginia McKay served concurrently herewith.
8 RESPONSE TO DEMAND FOR INSPECTION NO. 1:
9 Objection. This request is overbroad and unduly burdensome. This request does not
10 specifically identify the items to be produced or reasonably particularize the category of items
11 to be produced.
12 REQUEST FOR DEMAND FOR INSPECTION NO. 2:
13 All bank account statements for the period of January 1, 2017 through January 1, 2021
14 for any and all bank accounts owned by or maintained for the benefit of Calbase, LLC.
15 RESPONSE TO REQUEST FOR DEMAND FOR INSPECTION NO. 2:
16 Objection. This request is overbroad and unduly burdensome as to time and scope. This
17 request seeks personal confidential information subject to the privacy rights of Responding
18 Party and third parties who have not received notice of this request and have not had the
19 opportunity to object to the disclosure of their personal information. This request seeks
20 information that is neither relevant to the subject matter of this action nor reasonably calculated
21 to lead to the discovery of admissible evidence.
22
23
24 Dated: December 1, 2023 BELDEN BLAINE RAYTIS, LLP
25
26
By:
27 T. SCOTT BELDEN
BRIAN J. HILL
28 Attorneys for Defendant/Cross Complainants
3 Charlotte McKay’s Response to Demand for Inspection, Set
One
1 Case No. BCV-19-103089-TSC
2 PROOF OF SERVICE
3 STATE OF CALIFORNIA, COUNTY OF KERN
4 I am employed in the County of Kern, State of California. I am over the age of eighteen years and not
a party to the within action; my business address is 5016 California Ave., Suite 3, Bakersfield, CA 93309.
5 My email address is heather@bbr.law.
6 On December 1, 2023, I served the following document(s) described as
7 Defendant/Cross-Complainant Virginia McKay’s Response to Demand for Inspection
and Copying of Documents, Set One
8
on the interested parties in this action by placing a copy thereof enclosed in sealed envelopes addressed as
9 follows:
10 CRAIG D. BRAUN Attorneys for Plaintiff
BRAUN GOSLING, A LAW CORPORATION
11 1620 MILL ROCK WAY, SUITE 400
12 BAKERSFIELD, CA 93311
CBRAUN@BRAUNGOSLING.COM
13 BMADDEN@BRAUNGOSLING.COM
KDAMERON@BRAUNGOSLING.COM
14 SVANEERDEN@BRAUNGOSLING.COM
15 BY ELECTRONIC MAIL Pursuant to California Rules of Court, rule 2.251, I served the
X
16 forgoing document electronically on the interested parties at the email addresses listed.
17 Executed on December 1, 2023, at Bakersfield, California.
18 I declare under penalty of perjury under the laws of the State of California that the foregoing is true
and correct.
19
20 Heather McCoy
21
22
23
24
25
26
27
28
4 Charlotte McKay’s Response to Demand for Inspection, Set
One
EXHIBIT "C"
1620 Mill Rock Way Phone: (661) 663-8300
Suite 400 Fax: (661) 663-8388
Bakersfield, CA 93311 www.braungosling.com
_______________________
Craig D. Braun
Douglas A. Gosling
Sam Van Eerden
January 2, 2024
Via E-Mail [brian@bbr.law]
Brian J. Hill, Esq.
Belden Blaine Raytis
P.O. Box 9129
Bakersfield, CA 93389
Re: Johnston v. McKay, et al.
Kern County Superior Court, Case No. BCV-19-103089-TSC
Meet and Confer re: First Set of Demands for Inspection and Copying of
Documents
Dear Mr. Hill:
This correspondence is intended to follow up on our phone call last month, and as a meet and
confer regarding the discovery responses (“Response”) of Virginia McKay (“McKay”) in the
above matter and, particularly, the responses of McKay to First Set of Demands for Inspection
and Copying of Documents (“Demands”).
Before addressing McKay’s specific written responses to the Demands, including objections, we
herein provide a general outline of the purpose and requirements of discovery within the context
of litigation.
A. Scope of Discovery.
Pursuant to Code of Civil Procedure section 2017.101,
Unless otherwise limited by order of the court in accordance with this title, any
party may obtain discovery regarding any matter, not privileged, that is relevant to
January 2, 2024
Page | 2
the subject matter involved in the pending action or to the determination of any
motion made in that action, if the matter either is itself admissible in evidence or
appears reasonably calculated to lead to the discovery of admissible evidence.
Discovery may relate to the claim or defense of the party seeking discovery or of
any other party to the action. Discovery may be obtained of the identity and
location of persons having knowledge of any discoverable matter, as well as of
the existence, description, nature, custody, condition, and location of any
document, electronically stored information, tangible thing, or land or other
property.
B. Plaintiff is Entitled to Discover Relevant Evidence.
“For discovery purposes, information is relevant if it "might reasonably assist a party
in evaluating the case, preparing for trial, or facilitating settlement . . . ." (Weil & Brown, Cal.
Practice Guide: Civil Procedure Before Trial (The Rutter Group 1994) Discovery, P 8:66.1, p.
8C-1.) Admissibility is not the test and information, unless privileged, is discoverable if it might
reasonably lead to admissible evidence. (Davies v. Superior Court (1984) 36 Cal. 3d 291, 301
[204 Cal. Rptr. 154, 682 P.2d 349].) (Gonzalez v. Superior Court (1995) 33 Cal. App. 4th 1539,
1546.)
As indicated above, the first and most basic limitation on the scope of discovery is that the
information sought must be relevant to the “subject matter” of the pending action or to the
determination of a motion in that action. (Code Civ. Proc., §2017.010.) Although the phrase
“subject matter” does not lend itself to precise definition, it is broader than relevancy to
the issues (which determines admissibility of evidence at trial). (Bridgestone/Firestone, Inc. v.
Sup.Ct. (1992) 7 Cal.App.4th 1384, 1392.)
For discovery purposes, information should be regarded as “relevant to the subject matter” if it
might reasonably assist a party in evaluating the case, preparing for trial, or
facilitating settlement thereof. (Gonzalez v. Sup.Ct. (1995) 33 Cal.App.4th 1539, 1546 (citing
text); Lipton v. Sup.Ct. (1996) 48 Cal.App.4th 1599, 1611 (citing text); Stewart v. Colonial
Western Agency, Inc. (2001) 87 Cal.App.4th 1006, 1013 (citing text).) Information that relates to
a claim or defense of any party is relevant to the subject matter of the litigation. This information
is subject to discovery, even though the information may be inadmissible at trial. Information
supporting allegations in the pleadings, including affirmative defenses and general denials, is
relevant without regard as to who has the burden of proof on the issue for which the information
is sought. (Dompeling v. Superior Court (1981) 117 Cal.App.3d 798; Singer v. Superior Court
(1960) 54 Cal.2d 318.)
The “relevance to the subject matter” and “reasonably calculated to lead to discovery of
admissible evidence” standards are applied liberally. Any doubt is generally resolved in favor
of permitting discovery, particularly where the precise issues in the case are not yet clearly
established. (Colonial Life & Acc. Ins. Co. v. Sup.Ct. (1982) 31 Cal.3d 785, 790, fns. 7-8.)
January 2, 2024
Page | 3
In the face of an "irrelevance" objection, an order granting discovery is proper unless there is no
reasonable possibility that the responses will lead to the discovery of admissible evidence or will
be helpful in preparing for trial. (Sav-On Drugs, Inc. v. Superior Court (1975) 15 Cal.3d 1, 5.)
Doubts concerning relevance should usually be resolved in favor of permitting discovery.
(California Life and Accident Ins. Co. v. Superior Court (1982) 31Cal.3d 785.) Moreover, all
doubts about discovery are resolved in favor of disclosure. (Glenfed Development Corp. v.
Superior Court, supra.)
C. Duties When Responding to Demands for Production.
Pursuant to Code of Civil Procedure section 2031.210,
(a) The party to whom a demand for inspection, copying, testing,
or sampling has been directed shall respond separately to each item
or category of item by any of the following:
(1) A statement that the party will comply with the particular
demand for inspection, copying, testing, or sampling by the date
set for the inspection, copying, testing, or sampling pursuant to
paragraph (2) of subdivision (c) of Section 2031.030 and any
related activities.
(2) A representation that the party lacks the ability to comply with
the demand for inspection, copying, testing, or sampling of a
particular item or category of item.
(3) An objection to the particular demand for inspection, copying,
testing, or sampling.
***
Code Civ. Proc., § 2031.220 provides that:
A statement that the party to whom a demand for inspection,
copying, testing, or sampling has been directed will comply with
the particular demand shall state that the production, inspection,
copying, testing, or sampling, and related activity demanded, will
be allowed either in whole or in part, and that all documents or
things in the demanded category that are in the possession,
custody, or control of that party and to which no objection is being
made will be included in the production.
And, as it relates to a claimed inability to comply with a particular demand, Code Civ. Proc., §
2031.230 provides that:
A representation of inability to comply with the particular demand
for inspection, copying, testing, or sampling shall affirm that a
diligent search and a reasonable inquiry has been made in an effort
to comply with that demand. This statement shall also specify
January 2, 2024
Page | 4
whether the inability to comply is because the particular item or
category has never existed, has been destroyed, has been lost,
misplaced, or stolen, or has never been, or is no longer, in the
possession, custody, or control of the responding party. The
statement shall set forth the name and address of any natural
person or organization known or believed by that party to have
possession, custody, or control of that item or category of item.
D. Manner of Production.
Pursuant to Code of Civil Procedure section 2031.280,
(a) Any documents or category of documents produced in response
to a demand for inspection, copying, testing, or sampling shall be
identified with the specific request number to which the documents
respond.
***
McKay did not produce any documents in response to the Demands.
E. Objections.
In response to the Demands, McKay asserted numerous objections, including (1) overbroad, (2)
unduly burdensome, (3) failure to identify documents with particularity, (4) lack of relevance,
and (5) privacy rights
1. Overbroad/Unduly Burdensome.
This objection is only valid if the breadth of the demand imposes an undue burden or is
irrelevant to the subject matter. (Williams v. Superior Court (2017) 3 Cal.5th 531, 549-550; Mead
Reinsurance Co. v. Superior Court (1986) 188 Cal.App.3d 313; Code Civ. Proc., § 2017.010.)
As it relates to the Demands, we do not believe that they are irrelevant to the subject matter of
the within cause. As to the breadth of the Demands, insofar that the Demands relate to
discoverable matter and, in particular, the allegations of the pleadings of our respective clients, it
is hard to fathom how the Demands impose an undue burden on McKay.
2. Failure to Identify Documents with Particularity.
This objection is similar to the vague and ambiguous objections raised in the Response.
However, as will be discussed below, we believe that all of the document demands are
unambiguous and clearly identify the category of documents being sought by each demand.
3. Lack of Relevance.
January 2, 2024
Page | 5
This objection is improper. Code Civ. Proc., § 2017.010 provides that:
Unless otherwise limited by order of the court in accordance with
this title, any party may obtain discovery regarding any matter, not
privileged, that is relevant to the subject matter involved in the
pending action or to the determination of any motion made in that
action, if the matter either is itself admissible in evidence or
appears reasonably calculated to lead to the discovery of
admissible evidence. Discovery may relate to the claim or defense
of the party seeking discovery or of any other party to the action.
Discovery may be obtained of the identity and location of persons
having knowledge of any discoverable matter, as well as of the
existence, description, nature, custody, condition, and location of
any document, electronically stored information, tangible thing, or
land or other property.
Each of the individual demands contained in the Demands relate to the claims of Johnston in this
within cause. As such, they clearly fall within the scope of discovery. Pursuant to Evidence
Code, § 210,
“Relevant evidence” means evidence, including evidence relevant
to the credibility of a witness or hearsay declarant, having any
tendency in reason to prove or disprove any disputed fact that is of
consequence to the determination of the action.
As it relates to all of the demands, including the ones to which an irrelevance objection has been
made (demand nos. 1,2), the documents sought by Johnston are expected to have a “tendency in
reason to prove or disprove any disputed fact that is of consequence to the determination of the
action.”
4. Privacy rights.
“Disclosure in the face of an objection based on the right of privacy depends on the balancing
of the need for discovery against the patient's need for confidentiality.” (Family Law Financial
Discovery (Cal. CEB 2022) §15.34.)
When a party seeks to discover information protected by a right of
privacy, the information is discoverable only if
• The information sought is directly relevant to the issues in
litigation; and
• The need for the information outweighs the privacy interest
at issue.
January 2, 2024
Page | 6
See Binder v Superior Court (1987) 196 CA3d 893, 901,
disapproved on other grounds in Williams v Superior Court (2017)
3 C5th 531, 557 n8.
If the party seeking discovery can establish that the information is
directly relevant to the issues being litigated, then the court will
apply the analytical framework of Hill v National Collegiate
Athletic Ass'n (1994) 7 C4th 1, 15, to determine whether to permit
the discovery. The party resisting the discovery due to privacy
concerns must
• Identify a legally protected privacy interest (whether
concerning "informational privacy" or "autonomy
privacy" as defined in §3.157);
• Establish a reasonable expectation of privacy regarding
that interest; and
• Explain the "extent and gravity" of the invasion of
privacy.
(California Civil Discovery Practice (4th ed. Cal. CEB 2022) §1.57.)
As explained in further detail below, McKay may not refuse to comply with discovery
obligations based on the assertion of this right.
F. The Responses to the Demands.
As an initial matter, McKay provided no verification for the Response to the Demands. Please
advise if and when McKay intends to provide a verification for the Response.
1. Demand No. 1.
Demand No. 1 sought the production of all documents McKay identified in McKay’s response to
First Set of Special Interrogatories (“Special Interrogatories”), which were served concurrently
with the Demands. In response, McKay objected that this Demand was overbroad and unduly
burdensome, and that it did not specifically identify the items to be produced or reasonably
particularize the category of items to be produced.
To the extent that McKay’s response (including any supplemental/further response) to Special
Interrogatories identifies documents, this Demand is sufficiently specific to identify them, in that
McKay is clearly aware of the documents that McKay identified in the response to Special
Interrogatories. Similarly, if McKay believes it was appropriate to identify certain documents in
McKay’s response to Special Interrogatories, then it is not overbroad or unduly burdensome of
Johnston to demand that McKay produce them.
January 2, 2024
Page | 7
If McKay intends to maintain the objections asserted in McKay’s response to this Demand, this
meet and confer specifically requests McKay to clearly explain how these objections actually
apply, and not simply assert them in a conclusory manner that provides no explanation.
2. Demand No. 2.
Demand No. 2 sought the production of “All bank account statements for the period of January
1, 2017 through January 1, 2021 for any and all bank accounts owned by or maintained for the
benefit of Calbase, LLC.” In response, McKay objected that this Demand was overbroad and
unduly burdensome “as to time and scope”, and that it “seeks personal confidential information
subject to the privacy rights of Responding Party and third parties who have not received notice
of this request and have not had the opportunity to object to the disclosure of their personal
information.” Additionally, McKay objected that the Demand “seeks information that is neither
relevant to the subject matter of this action nor reasonably calculated to lead to the discovery of
admissible evidence.”
Johnston’s operative complaint alleges that McKay is an officer of defendant, CalBase, LLC
(First Amended Complaint and Derivative Complaint for Damages and Injunctive Relief, filed
June 30, 2023 [“FAC”]). The FAC also alleges that McKay is liable for the acts of CalBase, LLC
on an alter ego theory, that McKay commingled funds of CalBase, LLC, and that McKay used
CalBase, LLC as a mere “shell, instrumentality, or conduit for the business of [McKay] . . .” The
FAC also alleges that McKay “aided and abetted [James McKay] in his breach of [fiduciary]
duties by CALBASE receiving funds misappropriated by JAMES from TARINA HOMES in an
effort to assist him in misappropriating assets of TARINA HOMES.” The damages caused by
this misconduct were alleged to be in excess of $1,000,000.
In light of the allegations of the FAC, including McKay’s alleged control of CalBase, LLC and
use of CalBase, LLC for purposes of misappropriating funds, this Demand’s request for bank
account statements is clearly relevant to the subject matter and calculated to lead to admissible
evidence.
With regard to the timeframe for the account statements that are the subject of this Demand, the
FAC alleges that as of “in or about late 2016” Johnston and James McKay had already been
engaged in the joint venture between TARINA HOMES and HIGHER GROUNDS” that is
relevant to this action. Moreover, the FAC alleges that “in or about late 2016”, Johnston and
James McKay made further oral agreements concerning the joint venture, which were thereafter
breached, with McKay’s assistance. To the extent that CalBase LLC was utilized by McKay for
the purpose of misappropriating funds as alleged in the FAC, the financial accounts maintained
for the benefit of CalBase, LLC during that same time period are certainly relevant to this action.
Moreover, while this action was filed prior to January 1, 2021, the commencement of this action
does not make subsequent bank accounts statements irrelevant as those bank statements may still
provide admissible evidence – or lead to the discovery of admissible evidence – showing how
misappropriated funds were used.
With respect to the assertion of “privacy rights of Responding Party and third parties”, no further
January 2, 2024
Page | 8
notice is required to obtain the documents requested by this Demand. Moreover, McKay does not
even specifically identify any “third parties” whose privacy rights are supposedly implicated. If
McKay was truly concerned for the privacy interests of others, McKay could have easily
informed those parties of this demand. Additionally, even documents subject to a right to privacy
can still be discovered by balancing the interests of the parties to the litigation. “Disclosure in the
face of an objection based on the right of privacy depends on the balancing of the need for
discovery against the patient's need for confidentiality.” (Family Law Financial Discovery (Cal.
CEB 2022) §15.34.)
In light of the relevancy of the requested documents, and in light of the analytical framework of
Hill v National Collegiate Athletic Ass'n (1994) 7 C4th 1, 15 (see also: California Civil
Discovery Practice (4th ed. Cal. CEB 2022) §1.57.), please identify a legally protected privacy
interest (whether concerning "informational privacy" or "autonomy privacy"), and
explain the "extent and gravity" of the claimed invasion of privacy.
Based on the foregoing, a further response is required from McKay indicating that McKay will
fully comply with this demand. Alternatively, please provide a detailed privilege log that would
enable Johnston and the Court to determine whether any particular communications deserve
protection.
Demand is hereby made that McKay provide further responses and, if privacy objections are
maintained, a privilege log consistent with our meet and confer letter by no later than January 10,
2024.
Thank you for your attention herein.
Yours very truly,
SAM VAN EERDEN, ESQ.
CDB:bm
EXHIBIT "D"
From: Brian Hill
To: Sam Van Eerden
Subject: Re: McKay adv Johnston
Date: Friday, March 15, 2024 10:42:05 AM
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Sam,
Extension on Virginia and Charlotte’s MTC deadline confirmed.
Brian J. Hill
Attorney
5016 California Ave., Suite 3
Bakersfield, California 93309
Tel: 661.864.7827 | Direct: 661.859.6511 | Fax: 661.878.9797
From: Sam Van Eerden
Date: Friday, March 15, 2024 at 10:26 AM
To: Brian Hill
Subject: RE: McKay adv Johnston
Brian,
We would prefer to not have to file additional motions to compel, and would like to discuss that issue
further with our client. We are going to be discussing various matters with him next week concerning
this case and would therefore request an extension of time to file any motions to compel related to
Charlotte and Virginia McKay’s discovery responses to next Friday (3/22). Are you willing to extend
that deadline?
Sam Van Eerden, Esq.
BRAUN GOSLING
A Law Corporation
1620 Mill Rock Way
Suite 400
Bakersfield, CA 93311
Phone: (661) 663-8300
Fax: (661) 663-8388
Email: svaneerden@braungosling.com
Website: https://link.edgepilot.com/s/5ca97bee/4Kna5vCrmU2E0N_EYxly6g?
u=http://www.braungosling.com/
The contents of this e-mail message, including any attachments, are intended solely for the use
of the person or entity to which the e-mail was addressed. It contains information that may be
protected by the attorney-client privilege, work-product doctrine, or other privileges, and may
be restricted from disclosure by applicable state and federal law.
If you received this e-mail message in error, please e-mail svaneerden@braungosling.com by
reply e-mail. Please also permanently delete all copies of the original e-mail as well as any
attachments.
From: Brian Hill
Sent: Monday, March 4, 2024 11:35 AM
To: Sam Van Eerden
Subject: Re: McKay adv Johnston
Yes that is fine. Thank you Sam.
Brian J. Hill
Attorney
Preview
1 CRAIG D. BRAUN, State Bar No. 166519 SAM VAN EERDEN, State Bar No. 283069 2 BRAUN GOSLING, A LAW CORPORATION 3 1620 Mill Rock Way, Suite 400 Bakersfield, CA 93311 4 Telephone: (661) 663-8300 Facsimile: (661) 663-8388 5 E-Mail: cbraun@braungosling.com 6 Attorneys for CHRIS JOHNSTON and 7 LIVE.RESIDE LLC 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 COUNTY OF KERN – METROPOLITAN DIVISION 10 CHRIS JOHNSTON, an individual, Case No. BCV-19-103089-TSC 11 12 Plaintiff, UNLIMITED CIVIL CASE 13 vs. DECLARATION OF SAM VAN EERDEN IN SUPPORT OF MOTION TO COMPEL 14 JAMES McKAY, an individual; FURTHER RESPONSES OF VIRGINIA 15 et al., MCKAY TO DEMANDS FOR INSPECTION AND COPYING OF 16 Defendants, DOCUMENTS, SET ONE 17 and [concurrently filed with Notice of Motion and 18 Motion; Separate Statement of Demands and MILLENNIUM HOMES, LLC, a California Responses in Dispute; Request for Judicial 19 limited liability company; Notice] et al., 20 DATE: May 2, 2024 21 Nominal Defendants. TIME: 8:30 a.m. DEPT: 17 22 ASSIGNED FOR ALL PURPOSES TO 23 AND RELATED CROSS-ACTIONS. JUDGE: Hon. Thomas S. Clark 24 DEPARTMENT: 17 COMPLAINT FILED: October 29, 2019 25 TRIAL DATE: November 4, 2024 26 I, Sam Van Eerden, declare as follows: 27 1. I am an attorney at law duly licensed to practice laws in all courts of the State of 28 1 DECLARATION OF SAM VAN EERDEN IN SUPPORT OF MOTION TO COMPEL FURTHER RESPONSES OF VIRGINIA MCKAY TO DEMANDS FOR INSPECTION AND COPYING OF DOCUMENTS, SET ONE 1 California. 2 2. I am an associate with the firm of Braun Gosling, A Law Corporation, attorneys of 3 record for the Plaintiff in the above-captioned matter. The facts set forth in this Declaration are 4 known by me personally to be true, and if called as a witness I could and would competently 5 testify thereto. 6 3. I prepared the motion to compel further responses to demands for inspection and 7 copying of documents, set one (“Motion”), as well as the accompanying separate statement of 8 demands and responses in dispute, the within declaration, and the concurrently filed Request for 9 Judicial Notice. I also assisted in the meet and confer process related to this discovery, including 10 the drafting of the meet and confer letter dated January 2, 2024. 11 4. On October 27, 2023, I caused a first set of Demands for Inspection and Copying of 12 Documents (“Demands”) to Virginia McKay (“McKay”), which was served on her via mail 13 (USPS) that same day. (A true and correct copy of the Demands is attached hereto as Exhibit 14 “A”.) 15 5. McKay provided responses to the Demands on December 1, 2023 (“Response”). (A 16 true and correct copy of the responses is attached hereto as Exhibit “B”.) 17 6. Upon review of the Responses, it was discovered that MCKAY had provided 18 deficient Responses (no documents were produced with respect to Demand No. 2) and asserted 19 unmeritorious objections. 20 7. I sent McKay’s counsel, Brian Hill, a meet and confer letter on January 2, 2024, 21 pointing out deficiencies in the Responses, including in McKay’s response to Demand 2. That 22 same letter requested that McKay’s provide further/amended code-compliant responses that did 23 not hide behind baseless objections. (A true and correct copy of this meet and confer letter is 24 attached hereto as Exhibit “C”.) 25 8. Mr. Hill and I had several e-mail exchanges discussing and agreeing to extend 26 deadlines for McKay to provide further/amended response to the Demands, and to extend the 27 deadline for Johnston to file motion to compel further discovery responses. Our meet and confer 28 2 DECLARATION OF SAM VAN EERDEN IN SUPPORT OF MOTION TO COMPEL FURTHER RESPONSES OF VIRGINIA MCKAY TO DEMANDS FOR INSPECTION AND COPYING OF DOCUMENTS, SET ONE 1 communication also included multiple phone calls during which counsel laid out their positions 2 with respect to the Special Interrogatory that is the subject of this motion. 3 9. Ultimately McKay did not provide any additional response or documents with 4 respect to Demand No. 2. McKay also did not identify any legally protected privacy interest that 5 would justify failing to comply with Demand No. 2. Additionally, while McKay indicated that 6 Demand No. 2 invaded privacy interests, McKay did not provide a privilege log justifying 7 McKay’s refusal to produce any documents. 8 10. By stipulation of counsel for the parties, the current deadline to file the Motion to 9 Compel related to the Interrogatories is March 22, 2024. (A true and correct copy of the email 10 exchange confirming this is attached hereto as Exhibit “D”.) 11 11. As a result of defendant McKay’s failure to comply with the discovery process, 12 Plaintiff has incurred reasonable attorney fees and costs in connection with the Motion, including 13 for the time I spent preparing this motion. 14 12. I spent a total of 2 hours of attorney time in the research and preparation of this 15 motion (including the related concurrent filings). 16 13. I spent a total of .6 hours meeting and conferring with counsel in regards to the 17 Demands. 18 14. My hourly rate in this matter is $395.00. 19 15. The cost of the filing of this motion is $60. 20 16. I have therefore incurred a total of $1,087.00 in attorney fees and costs in 21 connection with preparing this motion on behalf of the Plaintiff, not including time for the hearing 22 on the Motion. 23 I declare under penalty of perjury under the laws of the State of California that the 24 foregoing is true and correct. 25 Executed this 22nd day of March, 2024, at Bakersfield, California. 26 27 _________________________________ SAM VAN EERDEN 28 3 DECLARATION OF SAM VAN EERDEN IN SUPPORT OF MOTION TO COMPEL FURTHER RESPONSES OF VIRGINIA MCKAY TO DEMANDS FOR INSPECTION AND COPYING OF DOCUMENTS, SET ONE EXHIBIT "A" i 1 CRAIG D. BRAUN, State Bar No. 166519 SAM VAN EERDEN, State Bar No. 283069 2 BRAUN GOSLING, A LAW CORPORATION 1620 Mill Rock Way, Suite 400 3 Bakersfield, CA 93311 4 Telephone: (661) 663-8300 Facsimile: (661) 663-8388 5 E-Mail: svaneerden@braungosling.com 6 Attorneys for CHRIS JOHNSTON and 7 LIVE.RESIDE LLC 8 9 SUPERIOR COURT OF THE STATE OF CALIFORNIA 10 COUNTY OF KERN - METROPOLITAN DIVISION 11 CHRIS JOHNSTON, an individual, Case No. BCV-19-103089-TSC 12 13 Plaintiff, UNLIMITED CIVIL CASE 14 vs. FIRST SET OF DEMANDS FOR INSPECTION AND COPYING OF 15 DOCUMENTS TO VIRGINIA MCKAY JAMES McKAY, an individual; 16 et al., 17 Defendants, 18 and 19 MILLENNIUM HOMES, LLC, a California 20 limited liability company; 21 et al., 22 Nominal Defendants. 23 ASSIGNED FOR ALL PURPOSES TO 24 AND RELATED CROSS-ACTIONS. JUDGE: Hon. Thomas S. Clark DEPARTMENT: 17 25 COMPLAINT FILED: October 29, 2019 _ _ _ __ _ _ _ __ _ _ _ ______, TRIAL DATE: May 13, 2024 26 PROPOUNDING PARTY: CHRIS JOHNSTON 27 RESPONDING PARTY: VIRGINIA McKAY 28 SET NUMBER ONE 1 FIRST SET OF DEMANDS FOR INSPECTION AND COPYING OF DOCUMENTS TO VIRGINIA MCKAY 1 TO VIRGINIA McKAY AND HER ATTORNEYS OF RECORD: 2 Propounding Party, CHRIS JOHNSTON, the plaintiff and a cross-defendant in the within 3 cause, demands that responding party, VIRGINIA McKAY, a defendant in the within cause, 4 produce for inspection and copying the following documents or categories of documents in his 5 possession, custody, or control. The documents or categories of documents must be produced on 6 December 8, 2023, at 10:00 a.m. at Braun Gosling, A Law Corporation, 1620 Mill Rock Way, 7 Suite 400, Bakersfield, California, 93311. Pursuant to Code of Civil Procedure, Section 2031.260, 8 responding party is required to serve a written response to this First Set of Demands for Inspection 9 and Copying of Documents within 30 days from the date of service of this demand. 10 DEMANDS 11 Produce: 12 1. All DOCUMENTS identified by McKAY in response to First Set Of Special 13 Interrogatories to Virginia McKay served concurrently herewith. (For purposes of this 14 set of Demands for Inspection and Copying of Documents, the terms "DOCUMENT" 15 and "DOCUMENTS" mean a "WRITING" as defined in Evidence Code, Section 250, 16 whether such "WRITING" is written material, typed, printed, handwritten or otherwise 17 created, and encompasses all information electronically stored in data processing 18 machines and computers; the term "McKAY" means Virginia McKay a defendant in 19 the within cause, as well as anyone acting on her behalf.) 20 2. All bank account statements for the period of January 1, 2017 through January 1, 2021 21 for any and all bank accounts owned by or maintained for the benefit of Calbase, LLC. 22 (This request is intended to include, but is not limited to, statements related to the 23 business checking account in the name of Calbase, LLC, with an account number 24 ending in 1677.) 25 Dated: October 27, 2023 BRAUN GOSLING, 26 A LAW COR1'0RA7 27 By: 28 S AN EERDEN, Attorney for CHRIS JOHNSTON and LIVE.RESIDE LLC 2 FIRST SET OF DEMANDS FOR INSPECTION AND COPYING OF DOCUMENTS TO VIRGINIA MCKAY POS-030 ATTORNEY OR PARTY WITHOUT ATTORNEY (Name, State Bar number, and address): FOR COURT USE ONLY SAM VAN EERDEN SBN 283069 BRAUN GOSLING, A LAW CORPORATION 1620 Mill Rock Way, Suite 400 Bakersfield, CA 93311 TELEPHONE NO.: (661) 663-8300 FAXNO(Optional) (661) 663-8388 E-MAIL ADDRESS (Optional): svaneerden@braungosling.com ATTORNEY FOR (Name): Plaintiff SUPERIOR COURT OF CALIFORNIA, COUNTY OF Kem STREET ADDRESS: 1415 TruxtunAvenue MAILING ADDRESS: Bakersfield, CA 93301 CITY AND ZIP CODE: BRANCH NAME:Metropolitan Division PETITIONER/PLAINTIFF: Chns Johnston an Individual RESPONDENT/DEFENDANT: James McKay, an Individual, et al. CASE NUMBER: PROOF OF SERVICE BY FIRST-CLASS MAIL- CIVIL BCV-19-103089-TSC (Do not use this Proof of Service to show service of a Summons and Complaint.) 1. I am over 18 years of age and not a party to this action. I am a resident of or employed in the county where the mailing took place. 2. My residence or business address is: Braun Gosling, A Law Corporation 1620 Mill Rock Way Suite 400 Bakersfield, CA 93311 3. On (date) : October 27, 2023 I mailed from (city and state): Bakersfield, CA the following documents (specify): FIRST SET OF DEMANDS FOR INSPECTION AND COPYING OF DOCUMENTS TO VIRGINIA McKAY D The documents are listed in the Attachment to Proof of Service by First-Class Mail - Civil (Documents Served) (form POS-030(O)). 4. I served the documents by enclosing them in an envelope and(check one): a. D depositing the sealed envelope with the United States Postal Service with the postage fully prepaid. b. IZI placing the envelope for collection and mailing following our ordinary business practices. I am readily familiar with this business's practice for collecting and processing correspondence for mailing. On the same day that correspondence is placed for collection and mailing, it Is deposited in the ordinary course of business with the United States Postal Service in a sealed envelope with postage fully prepaid. 5. The envelope was addressed and mailed as follows: a. Name of person served: T. Scott Belden, Esq. b. Address of person served: T. Scott Belden, Esq. Belden Blaine Raytis, LLP P.O. Box 9129 Bakersfield, CA 93389 D The name and address of each person to whom I mailed the documents is listed in the Attachment to Proof of Service by First-Class Mail-Civil (Persons Served) (POS-030(P)). I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. :::v:::::::,2023 (TYPE OR PRINT NAME OF PERSON COMPLETING TH IS FORM) ► - rnv_ +- c --+-...L...--::: l ' # (S""IG""N.,.,AT""u=Re=-o:c:F:-:Pe:=E=Rs=o""N-=c=oM:--::P::,-l=ET:,:-:IN.,,,G:--,;T:;-:H;;;:IS-;::-FO:c-;R,:-:-M,:- ) - - -- - Form Approved for Optlonal Use PROOF OF SERVICE BY FIRST-CLASS MAIL - CIVIL Code of Civil Procedure.§§ 1013, 1013a Judicial Council of California • www.courtinfo.ca.gov POS-030 [New January 1, 2005) C[B" i Essential (Proof of Service) ceb.com : 0 Forms· Johnston, Chris EXHIBIT "B" 1 T. Scott Belden (SBN 184387) scott@bbr.law 2 Brian J. Hill (SBN 343167) brian@bbr.law 3 BELDEN BLAINE RAYTIS, LLP 5016 California Avenue, Suite 3 4 Bakersfield, California 93309 Telephone: (661) 864-7826 5 Facsimile: (661) 878-9797 6 Attorneys for JAMES MCKAY; HIGHER GROUNDS SOLUTIONS, INC. (erroneously sued and served in Plaintiff’s Complaint as “HIGHER GROUND SOLUTIONS, INC.”); CALBASE 7 LLC; CHARLOTTE MCKAY; AND VIRGINIA MCKAY 8 SUPERIOR COURT FOR THE STATE OF CALIFORNIA 9 COUNTY OF KERN—METROPOLITAN DIVISION 10 Case No. BCV-19-103089-TSC 11 CHRIS JOHNSTON, an individual, 12 Plaintiffs, Defendant/Cross-Complainant Virginia McKay’s Response to Demand for 13 v. Inspection and Copying of Documents, JAMES McKAY, an individual; Set One. 14 CHARLOTTE McKAY, an individual; 15 HIGHER GROUND SOULTIONS, INC., a Nevada corporation; 16 CALBASE LLC, a California limited liability company; VIRGINIA McKAY, an individual; 17 AND DOES 1 through 100, inclusive, 18 Defendants. 19 And 20 MILLENNIUM HOMES, LLC, a California limited liability company; 21 MILLENNIUM HOLDINGS, LLC, a California limited liability company; 22 TARINA HOMES, INC., a California corporation; 23 WEST COAST SIP GENERAL PARTNER, LLC, a California limited liability company; 24 MH FORTY FOUR, LLC, a California limited liability company; and 25 TOP GREEN SOLUTIONS, LLC, a California limited liability company, 26 Nominal Defendants. 27 28 Relate Cross-Action(s) 1 Charlotte McKay’s Response to Demand for Inspection, Set One 1 PROPOUNDING PARTY: CHRIS JOHNSTON 2 RESPONDING PARTY: VIRGINIA MCKAY 3 SET NUMBER: ONE 4 PRELIMINARY STATEMENT 5 VIRGINIA MCKAY (“Responding Party”) bases these responses on a diligent 6 investigation of the facts of this case conducted by Responding Party and its counsel. Relevant 7 information may exist that is not yet known to Responding Party and relevant documents may 8 exist that Responding Party has not yet located, identified, or reviewed in any detail. For those 9 reasons, these responses only reflect Responding Party’s current understanding, belief, and 10 knowledge about the subject matter of the Requests. 11 These responses are not an admission or representation that further relevant documents 12 do not exist. Responding Party anticipates that further documents may be discovered or 13 identified. Subject to the objections asserted herein, Responding Party is responding in good 14 faith to the requests based upon information presently available to it within the time limitations 15 that the Code and these requests impose. These responses should not be construed to prejudice 16 the right of Responding Party to utilize any additional evidence that may be discovered or 17 developed. Responding Party reserves the right to supplement, alter, or amend any of the 18 responses provided herein up to and including the first day of trial based upon subsequently 19 discovered evidence. 20 No incidental or implied admissions are intended in these responses. The fact that 21 Responding Party has responded to any part or all of any particular request is not an admission 22 that Responding Party accepts or admits the existence of any fact set forth or assumed by such 23 request, or that such request constitutes admissible evidence. The fact that Responding Party 24 has answered any part or all of any request is not intended to be and shall not be construed to 25 be a waiver by Responding Party of all objections or any part of any objection to any such 26 request. 27 28 2 Charlotte McKay’s Response to Demand for Inspection, Set One 1 Responding Party intends these responses to be consistent with and to be read 2 consistent with Responding Party’s previous and subsequent discovery responses and any 3 apparent conflict between and/or among them is purely unintentional. 4 RESPONSE TO DEMAND FOR INPSECTION 5 REQUEST FOR DEMAND FOR INSPECTION NO. 1: 6 All DOCUMENTS identified by MCKAY in response to First Set Of Special 7 Interrogatories to Virginia McKay served concurrently herewith. 8 RESPONSE TO DEMAND FOR INSPECTION NO. 1: 9 Objection. This request is overbroad and unduly burdensome. This request does not 10 specifically identify the items to be produced or reasonably particularize the category of items 11 to be produced. 12 REQUEST FOR DEMAND FOR INSPECTION NO. 2: 13 All bank account statements for the period of January 1, 2017 through January 1, 2021 14 for any and all bank accounts owned by or maintained for the benefit of Calbase, LLC. 15 RESPONSE TO REQUEST FOR DEMAND FOR INSPECTION NO. 2: 16 Objection. This request is overbroad and unduly burdensome as to time and scope. This 17 request seeks personal confidential information subject to the privacy rights of Responding 18 Party and third parties who have not received notice of this request and have not had the 19 opportunity to object to the disclosure of their personal information. This request seeks 20 information that is neither relevant to the subject matter of this action nor reasonably calculated 21 to lead to the discovery of admissible evidence. 22 23 24 Dated: December 1, 2023 BELDEN BLAINE RAYTIS, LLP 25 26 By: 27 T. SCOTT BELDEN BRIAN J. HILL 28 Attorneys for Defendant/Cross Complainants 3 Charlotte McKay’s Response to Demand for Inspection, Set One 1 Case No. BCV-19-103089-TSC 2 PROOF OF SERVICE 3 STATE OF CALIFORNIA, COUNTY OF KERN 4 I am employed in the County of Kern, State of California. I am over the age of eighteen years and not a party to the within action; my business address is 5016 California Ave., Suite 3, Bakersfield, CA 93309. 5 My email address is heather@bbr.law. 6 On December 1, 2023, I served the following document(s) described as 7 Defendant/Cross-Complainant Virginia McKay’s Response to Demand for Inspection and Copying of Documents, Set One 8 on the interested parties in this action by placing a copy thereof enclosed in sealed envelopes addressed as 9 follows: 10 CRAIG D. BRAUN Attorneys for Plaintiff BRAUN GOSLING, A LAW CORPORATION 11 1620 MILL ROCK WAY, SUITE 400 12 BAKERSFIELD, CA 93311 CBRAUN@BRAUNGOSLING.COM 13 BMADDEN@BRAUNGOSLING.COM KDAMERON@BRAUNGOSLING.COM 14 SVANEERDEN@BRAUNGOSLING.COM 15 BY ELECTRONIC MAIL Pursuant to California Rules of Court, rule 2.251, I served the X 16 forgoing document electronically on the interested parties at the email addresses listed. 17 Executed on December 1, 2023, at Bakersfield, California. 18 I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. 19 20 Heather McCoy 21 22 23 24 25 26 27 28 4 Charlotte McKay’s Response to Demand for Inspection, Set One EXHIBIT "C" 1620 Mill Rock Way Phone: (661) 663-8300 Suite 400 Fax: (661) 663-8388 Bakersfield, CA 93311 www.braungosling.com _______________________ Craig D. Braun Douglas A. Gosling Sam Van Eerden January 2, 2024 Via E-Mail [brian@bbr.law] Brian J. Hill, Esq. Belden Blaine Raytis P.O. Box 9129 Bakersfield, CA 93389 Re: Johnston v. McKay, et al. Kern County Superior Court, Case No. BCV-19-103089-TSC Meet and Confer re: First Set of Demands for Inspection and Copying of Documents Dear Mr. Hill: This correspondence is intended to follow up on our phone call last month, and as a meet and confer regarding the discovery responses (“Response”) of Virginia McKay (“McKay”) in the above matter and, particularly, the responses of McKay to First Set of Demands for Inspection and Copying of Documents (“Demands”). Before addressing McKay’s specific written responses to the Demands, including objections, we herein provide a general outline of the purpose and requirements of discovery within the context of litigation. A. Scope of Discovery. Pursuant to Code of Civil Procedure section 2017.101, Unless otherwise limited by order of the court in accordance with this title, any party may obtain discovery regarding any matter, not privileged, that is relevant to January 2, 2024 Page | 2 the subject matter involved in the pending action or to the determination of any motion made in that action, if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence. Discovery may relate to the claim or defense of the party seeking discovery or of any other party to the action. Discovery may be obtained of the identity and location of persons having knowledge of any discoverable matter, as well as of the existence, description, nature, custody, condition, and location of any document, electronically stored information, tangible thing, or land or other property. B. Plaintiff is Entitled to Discover Relevant Evidence. “For discovery purposes, information is relevant if it "might reasonably assist a party in evaluating the case, preparing for trial, or facilitating settlement . . . ." (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 1994) Discovery, P 8:66.1, p. 8C-1.) Admissibility is not the test and information, unless privileged, is discoverable if it might reasonably lead to admissible evidence. (Davies v. Superior Court (1984) 36 Cal. 3d 291, 301 [204 Cal. Rptr. 154, 682 P.2d 349].) (Gonzalez v. Superior Court (1995) 33 Cal. App. 4th 1539, 1546.) As indicated above, the first and most basic limitation on the scope of discovery is that the information sought must be relevant to the “subject matter” of the pending action or to the determination of a motion in that action. (Code Civ. Proc., §2017.010.) Although the phrase “subject matter” does not lend itself to precise definition, it is broader than relevancy to the issues (which determines admissibility of evidence at trial). (Bridgestone/Firestone, Inc. v. Sup.Ct. (1992) 7 Cal.App.4th 1384, 1392.) For discovery purposes, information should be regarded as “relevant to the subject matter” if it might reasonably assist a party in evaluating the case, preparing for trial, or facilitating settlement thereof. (Gonzalez v. Sup.Ct. (1995) 33 Cal.App.4th 1539, 1546 (citing text); Lipton v. Sup.Ct. (1996) 48 Cal.App.4th 1599, 1611 (citing text); Stewart v. Colonial Western Agency, Inc. (2001) 87 Cal.App.4th 1006, 1013 (citing text).) Information that relates to a claim or defense of any party is relevant to the subject matter of the litigation. This information is subject to discovery, even though the information may be inadmissible at trial. Information supporting allegations in the pleadings, including affirmative defenses and general denials, is relevant without regard as to who has the burden of proof on the issue for which the information is sought. (Dompeling v. Superior Court (1981) 117 Cal.App.3d 798; Singer v. Superior Court (1960) 54 Cal.2d 318.) The “relevance to the subject matter” and “reasonably calculated to lead to discovery of admissible evidence” standards are applied liberally. Any doubt is generally resolved in favor of permitting discovery, particularly where the precise issues in the case are not yet clearly established. (Colonial Life & Acc. Ins. Co. v. Sup.Ct. (1982) 31 Cal.3d 785, 790, fns. 7-8.) January 2, 2024 Page | 3 In the face of an "irrelevance" objection, an order granting discovery is proper unless there is no reasonable possibility that the responses will lead to the discovery of admissible evidence or will be helpful in preparing for trial. (Sav-On Drugs, Inc. v. Superior Court (1975) 15 Cal.3d 1, 5.) Doubts concerning relevance should usually be resolved in favor of permitting discovery. (California Life and Accident Ins. Co. v. Superior Court (1982) 31Cal.3d 785.) Moreover, all doubts about discovery are resolved in favor of disclosure. (Glenfed Development Corp. v. Superior Court, supra.) C. Duties When Responding to Demands for Production. Pursuant to Code of Civil Procedure section 2031.210, (a) The party to whom a demand for inspection, copying, testing, or sampling has been directed shall respond separately to each item or category of item by any of the following: (1) A statement that the party will comply with the particular demand for inspection, copying, testing, or sampling by the date set for the inspection, copying, testing, or sampling pursuant to paragraph (2) of subdivision (c) of Section 2031.030 and any related activities. (2) A representation that the party lacks the ability to comply with the demand for inspection, copying, testing, or sampling of a particular item or category of item. (3) An objection to the particular demand for inspection, copying, testing, or sampling. *** Code Civ. Proc., § 2031.220 provides that: A statement that the party to whom a demand for inspection, copying, testing, or sampling has been directed will comply with the particular demand shall state that the production, inspection, copying, testing, or sampling, and related activity demanded, will be allowed either in whole or in part, and that all documents or things in the demanded category that are in the possession, custody, or control of that party and to which no objection is being made will be included in the production. And, as it relates to a claimed inability to comply with a particular demand, Code Civ. Proc., § 2031.230 provides that: A representation of inability to comply with the particular demand for inspection, copying, testing, or sampling shall affirm that a diligent search and a reasonable inquiry has been made in an effort to comply with that demand. This statement shall also specify January 2, 2024 Page | 4 whether the inability to comply is because the particular item or category has never existed, has been destroyed, has been lost, misplaced, or stolen, or has never been, or is no longer, in the possession, custody, or control of the responding party. The statement shall set forth the name and address of any natural person or organization known or believed by that party to have possession, custody, or control of that item or category of item. D. Manner of Production. Pursuant to Code of Civil Procedure section 2031.280, (a) Any documents or category of documents produced in response to a demand for inspection, copying, testing, or sampling shall be identified with the specific request number to which the documents respond. *** McKay did not produce any documents in response to the Demands. E. Objections. In response to the Demands, McKay asserted numerous objections, including (1) overbroad, (2) unduly burdensome, (3) failure to identify documents with particularity, (4) lack of relevance, and (5) privacy rights 1. Overbroad/Unduly Burdensome. This objection is only valid if the breadth of the demand imposes an undue burden or is irrelevant to the subject matter. (Williams v. Superior Court (2017) 3 Cal.5th 531, 549-550; Mead Reinsurance Co. v. Superior Court (1986) 188 Cal.App.3d 313; Code Civ. Proc., § 2017.010.) As it relates to the Demands, we do not believe that they are irrelevant to the subject matter of the within cause. As to the breadth of the Demands, insofar that the Demands relate to discoverable matter and, in particular, the allegations of the pleadings of our respective clients, it is hard to fathom how the Demands impose an undue burden on McKay. 2. Failure to Identify Documents with Particularity. This objection is similar to the vague and ambiguous objections raised in the Response. However, as will be discussed below, we believe that all of the document demands are unambiguous and clearly identify the category of documents being sought by each demand. 3. Lack of Relevance. January 2, 2024 Page | 5 This objection is improper. Code Civ. Proc., § 2017.010 provides that: Unless otherwise limited by order of the court in accordance with this title, any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action or to the determination of any motion made in that action, if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence. Discovery may relate to the claim or defense of the party seeking discovery or of any other party to the action. Discovery may be obtained of the identity and location of persons having knowledge of any discoverable matter, as well as of the existence, description, nature, custody, condition, and location of any document, electronically stored information, tangible thing, or land or other property. Each of the individual demands contained in the Demands relate to the claims of Johnston in this within cause. As such, they clearly fall within the scope of discovery. Pursuant to Evidence Code, § 210, “Relevant evidence” means evidence, including evidence relevant to the credibility of a witness or hearsay declarant, having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action. As it relates to all of the demands, including the ones to which an irrelevance objection has been made (demand nos. 1,2), the documents sought by Johnston are expected to have a “tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.” 4. Privacy rights. “Disclosure in the face of an objection based on the right of privacy depends on the balancing of the need for discovery against the patient's need for confidentiality.” (Family Law Financial Discovery (Cal. CEB 2022) §15.34.) When a party seeks to discover information protected by a right of privacy, the information is discoverable only if • The information sought is directly relevant to the issues in litigation; and • The need for the information outweighs the privacy interest at issue. January 2, 2024 Page | 6 See Binder v Superior Court (1987) 196 CA3d 893, 901, disapproved on other grounds in Williams v Superior Court (2017) 3 C5th 531, 557 n8. If the party seeking discovery can establish that the information is directly relevant to the issues being litigated, then the court will apply the analytical framework of Hill v National Collegiate Athletic Ass'n (1994) 7 C4th 1, 15, to determine whether to permit the discovery. The party resisting the discovery due to privacy concerns must • Identify a legally protected privacy interest (whether concerning "informational privacy" or "autonomy privacy" as defined in §3.157); • Establish a reasonable expectation of privacy regarding that interest; and • Explain the "extent and gravity" of the invasion of privacy. (California Civil Discovery Practice (4th ed. Cal. CEB 2022) §1.57.) As explained in further detail below, McKay may not refuse to comply with discovery obligations based on the assertion of this right. F. The Responses to the Demands. As an initial matter, McKay provided no verification for the Response to the Demands. Please advise if and when McKay intends to provide a verification for the Response. 1. Demand No. 1. Demand No. 1 sought the production of all documents McKay identified in McKay’s response to First Set of Special Interrogatories (“Special Interrogatories”), which were served concurrently with the Demands. In response, McKay objected that this Demand was overbroad and unduly burdensome, and that it did not specifically identify the items to be produced or reasonably particularize the category of items to be produced. To the extent that McKay’s response (including any supplemental/further response) to Special Interrogatories identifies documents, this Demand is sufficiently specific to identify them, in that McKay is clearly aware of the documents that McKay identified in the response to Special Interrogatories. Similarly, if McKay believes it was appropriate to identify certain documents in McKay’s response to Special Interrogatories, then it is not overbroad or unduly burdensome of Johnston to demand that McKay produce them. January 2, 2024 Page | 7 If McKay intends to maintain the objections asserted in McKay’s response to this Demand, this meet and confer specifically requests McKay to clearly explain how these objections actually apply, and not simply assert them in a conclusory manner that provides no explanation. 2. Demand No. 2. Demand No. 2 sought the production of “All bank account statements for the period of January 1, 2017 through January 1, 2021 for any and all bank accounts owned by or maintained for the benefit of Calbase, LLC.” In response, McKay objected that this Demand was overbroad and unduly burdensome “as to time and scope”, and that it “seeks personal confidential information subject to the privacy rights of Responding Party and third parties who have not received notice of this request and have not had the opportunity to object to the disclosure of their personal information.” Additionally, McKay objected that the Demand “seeks information that is neither relevant to the subject matter of this action nor reasonably calculated to lead to the discovery of admissible evidence.” Johnston’s operative complaint alleges that McKay is an officer of defendant, CalBase, LLC (First Amended Complaint and Derivative Complaint for Damages and Injunctive Relief, filed June 30, 2023 [“FAC”]). The FAC also alleges that McKay is liable for the acts of CalBase, LLC on an alter ego theory, that McKay commingled funds of CalBase, LLC, and that McKay used CalBase, LLC as a mere “shell, instrumentality, or conduit for the business of [McKay] . . .” The FAC also alleges that McKay “aided and abetted [James McKay] in his breach of [fiduciary] duties by CALBASE receiving funds misappropriated by JAMES from TARINA HOMES in an effort to assist him in misappropriating assets of TARINA HOMES.” The damages caused by this misconduct were alleged to be in excess of $1,000,000. In light of the allegations of the FAC, including McKay’s alleged control of CalBase, LLC and use of CalBase, LLC for purposes of misappropriating funds, this Demand’s request for bank account statements is clearly relevant to the subject matter and calculated to lead to admissible evidence. With regard to the timeframe for the account statements that are the subject of this Demand, the FAC alleges that as of “in or about late 2016” Johnston and James McKay had already been engaged in the joint venture between TARINA HOMES and HIGHER GROUNDS” that is relevant to this action. Moreover, the FAC alleges that “in or about late 2016”, Johnston and James McKay made further oral agreements concerning the joint venture, which were thereafter breached, with McKay’s assistance. To the extent that CalBase LLC was utilized by McKay for the purpose of misappropriating funds as alleged in the FAC, the financial accounts maintained for the benefit of CalBase, LLC during that same time period are certainly relevant to this action. Moreover, while this action was filed prior to January 1, 2021, the commencement of this action does not make subsequent bank accounts statements irrelevant as those bank statements may still provide admissible evidence – or lead to the discovery of admissible evidence – showing how misappropriated funds were used. With respect to the assertion of “privacy rights of Responding Party and third parties”, no further January 2, 2024 Page | 8 notice is required to obtain the documents requested by this Demand. Moreover, McKay does not even specifically identify any “third parties” whose privacy rights are supposedly implicated. If McKay was truly concerned for the privacy interests of others, McKay could have easily informed those parties of this demand. Additionally, even documents subject to a right to privacy can still be discovered by balancing the interests of the parties to the litigation. “Disclosure in the face of an objection based on the right of privacy depends on the balancing of the need for discovery against the patient's need for confidentiality.” (Family Law Financial Discovery (Cal. CEB 2022) §15.34.) In light of the relevancy of the requested documents, and in light of the analytical framework of Hill v National Collegiate Athletic Ass'n (1994) 7 C4th 1, 15 (see also: California Civil Discovery Practice (4th ed. Cal. CEB 2022) §1.57.), please identify a legally protected privacy interest (whether concerning "informational privacy" or "autonomy privacy"), and explain the "extent and gravity" of the claimed invasion of privacy. Based on the foregoing, a further response is required from McKay indicating that McKay will fully comply with this demand. Alternatively, please provide a detailed privilege log that would enable Johnston and the Court to determine whether any particular communications deserve protection. Demand is hereby made that McKay provide further responses and, if privacy objections are maintained, a privilege log consistent with our meet and confer letter by no later than January 10, 2024. Thank you for your attention herein. Yours very truly, SAM VAN EERDEN, ESQ. CDB:bm EXHIBIT "D" From: Brian Hill To: Sam Van Eerden Subject: Re: McKay adv Johnston Date: Friday, March 15, 2024 10:42:05 AM Attachments: image001.png image004.png image006.png image008.png image009.png image011.png image012.png image013.png image015.png image016.png image018.png image020.png image022.png image024.png image026.png image027.png image029.png image030.png image032.png image033.png image035.png image037.png image038.png image040.png image041.png image042.png image043.png image045.png image046.png Sam, Extension on Virginia and Charlotte’s MTC deadline confirmed. Brian J. Hill Attorney 5016 California Ave., Suite 3 Bakersfield, California 93309 Tel: 661.864.7827 | Direct: 661.859.6511 | Fax: 661.878.9797 From: Sam Van Eerden Date: Friday, March 15, 2024 at 10:26 AM To: Brian Hill Subject: RE: McKay adv Johnston Brian, We would prefer to not have to file additional motions to compel, and would like to discuss that issue further with our client. We are going to be discussing various matters with him next week concerning this case and would therefore request an extension of time to file any motions to compel related to Charlotte and Virginia McKay’s discovery responses to next Friday (3/22). Are you willing to extend that deadline? Sam Van Eerden, Esq. BRAUN GOSLING A Law Corporation 1620 Mill Rock Way Suite 400 Bakersfield, CA 93311 Phone: (661) 663-8300 Fax: (661) 663-8388 Email: svaneerden@braungosling.com Website: https://link.edgepilot.com/s/5ca97bee/4Kna5vCrmU2E0N_EYxly6g? u=http://www.braungosling.com/ The contents of this e-mail message, including any attachments, are intended solely for the use of the person or entity to which the e-mail was addressed. It contains information that may be protected by the attorney-client privilege, work-product doctrine, or other privileges, and may be restricted from disclosure by applicable state and federal law. If you received this e-mail message in error, please e-mail svaneerden@braungosling.com by reply e-mail. Please also permanently delete all copies of the original e-mail as well as any attachments. From: Brian Hill Sent: Monday, March 4, 2024 11:35 AM To: Sam Van Eerden Subject: Re: McKay adv Johnston Yes that is fine. Thank you Sam. Brian J. Hill Attorney