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GIBSON, DUNN & CRUTCHER LLP
Palo Alto, California 94301
Attorneys for Plaintiffs FIRST STREET
HOLDINGS LLC; S.J. BAYSHORE
HOLDINGS LLC; and BRIAN BUMB
STATE OF CALIFORNIA
COUNTY OF SANTA CLARA
BAYSHORE DEVELOPMENT LLC; S.J.
BUMB, AND MOTION TO COMPEL
DEPOSITION OF TIMOTHY BUMB;
AUTHORITIES IN SUPPORT THEREOF
TIMOTHY BUMB; RONALD WERNER; and Date: June 20, 2024
Time: 9:00 a.m.
Judge: Hon. Socrates P. Manoukian
Action Filed: January 11, 2022
FAC Filed: March 22, 2022
Cross-Complainant, Trial Date: July 1, 2024
ally, and ROES 1
Gibson, Dunn &
r LLP
PLAINTIFFS’ NOTICE OF MOTION AND MOTION TO COMPEL DEPOSITION OF TIMOTHY BUMB;
MEMORANDUM OF POINT AND AUTHORITIES IN SUPPORT THEREOF
NOTICE OF MOTION
TO ALL PARTIES AND THEIR COUNSEL OF RECORD:
PLEASE TAKE NOTICE THAT on June 20, 2024 at 9:00 a.m., or as soon thereafter as
counsel may be heard before the Honorable Socrates Manoukian, in Department 20 of the above
captioned Court, located at 161 N. First Street, San Jose, CA 95113, Plaintiffs First Street Holdings
LLC, S.J. Bayshore Development LLC, S.J. Sweetwater Holdings LLC, and Brian Bumb (collectively,
“Plaintiffs”) will and hereby do move this Court for an order compelling Timothy Bumb to make
aintiffs prior to May 6, 2024.
This Motion is made pursuant to Code of Civil Procedure sections 1987.1, 2025.280, 2017.010
Plaintiffs have met and conferred with counsel for Timothy Bumb regarding the issues
presented in this motion. (See Declaration of Lindsey Young (“Young Decl.”) ¶ 3.)
This Motion is based on this Notice, and the Memorandum of Points and Authorities,
Declaration of Lindsey Young filed herewith, and all of the pleadings, files, and records in this
proceeding, and upon such other evidence as may be presented to or considered by the Court prior to
its ruling on this Motion.
GIBSON, DUNN & CRUTCHER LLP
Michael D. Celio
Attorneys for Plaintiffs FIRST STREET
HOLDINGS LLC; S.J. BAYSHORE
HOLDINGS LLC; and BRIAN BUMB
Gibson, Dunn &
r LLP
PLAINTIFFS’ NOTICE OF MOTION AND MOTION TO COMPEL DEPOSITION OF TIMOTHY BUMB;
MEMORANDUM OF POINT AND AUTHORITIES IN SUPPORT THEREOF
MEMORANDUM OF POINTS AND AUTHORITIES
Plaintiffs Brian Bumb, First Street Holdings LLC, S.J. Bayshore Development LLC, and S.J.
Sweetwater Holdings LLC (“Plaintiffs”) served a notice of deposition on Timothy Bumb (“Tim”) on
February 16, 2024, over two months ago. Tim, the Defendant and Cross-Complainant in this matter,
refuses to sit for deposition until after the related trial concludes in mid-May 2024 for
no legitimate reason other than hi first day of trial. This is
unacceptable. Close of discovery is June 3, 2024 and delays in Tim’s deposition will impair Plaintiffs’
ability to conduct follow up discovery and to prepare for a July 1, 2024 trial. But more importantly,
Plaintiffs need Tim’s testimony to oppose Tim’s third motion fo
preclude Plaintiffs from developing evidence needed to defeat Tim’s motion. The Court must order
II. STATEMENT OF FACTS
as to (1) the validity of certain written consents executed by Brian Bumb, and (2) the validity of
corporate actions Tim took in December 2021 to usurp control of the Bay 101 Technology Place
Association (the “Association”). (See Cross-Complaint of Timothy Bumb for Declaratory Relief.)
Tim has since filed three separate motions for summary adjudication (“MSAs”) in this case. Briefing
motion for summary adjudication, filed on March 8, 2024, Tim seeks summary judgment on Plaintiffs’
first cause of action for a declaration that Tim’s actions on behalf of the Association in December were
invalid. (See Memorandum of Points and Authorities In Support of Defendant/Cross-Complainant
Timothy Bumb’s Motion for Summary Adjudication y Relief Claim (The
Validity of Certain Acts) (Motion 3).) Specifically, MSA No. 3 centers on whether Tim—with the
help of long-time family attorney Ron Werner—had authority to act in a self-interested manner to
amend the Association’s CC&Rs, appoint himself and Werner to the Association board, and adopt
Gibson, Dunn &
r LLP
PLAINTIFFS’ NOTICE OF MOTION AND MOTION TO COMPEL DEPOSITION OF TIMOTHY BUMB;
MEMORANDUM OF POINT AND AUTHORITIES IN SUPPORT THEREOF
bylaws, signage rules, and a parking management plan for the Association. (Ibid.) Plaintiffs’
opposition to MSA No. 3 is due on May 9, 2024, and the hearing on that motion is set for May 23,
2024. (Young Decl., ¶ 6.) The close of fact discovery is June 3, 2024, and trial is set for July 1, 2024.
Plaintiffs served a notice of deposition on Tim on February 16, 2024. (Young Decl., ¶ 2, Ex.
A [Notice of Deposition to Timothy Bumb].) Tim di rved any objections to
that notice of deposition. (Young Decl., ¶ 2.) Over the subsequent weeks, Plaintiffs met and conferred
in good faith via email to select a mutually-agreeable date for Tim’s deposition. (Young Decl., ¶ 3,
Ex. B at pp. 5-10 [Email Correspondence].) Both parties offered proposed dates but did not ultimately
reach agreement on a date when all relevant parties were available. (Ibid.
At that point, with a mediation scheduled for April 9, 2024, Plaintiffs determined it would be
reasonable to wait until after the mediation to continue discussions, given the possibility that the
mediation might obviate the need for the deposition in the first place. (Young Decl., ¶ 4.) After the
failed mediation, Plaintiffs followed up with Tim’s counsel the very next day, April 10, 2024, to
schedule Tim’s deposition. (Young Decl., ¶ 4, Ex. B at pp. 4-5). In response, Tim’s counsel asserted
Sutter’s Place
Tim is only available “the last two weeks of May” because he is “out-of-state.” ( ) In reality, Tim
is purportedly “unavailable” for over a full month because he chose to retreat to his beach house in
Hawaii to avoid his obligation to appear for deposition. During prior discussions about Tim’s
indicated that Tim had an upcoming trip planned immediately after
the mediation that would make him entirely unavailable for the month leading up to the
trial. Had Tim’s counsel shared this information when first negotiating a date for Tim’s deposition,
Plaintiffs certainly would have confirmed a date before the April 9 mediation. (Young Decl., ¶ 3.)
Tim’s recent decision to flee to Hawaii now appears to be a tactic to prevent Plaintiffs from developing
ffered to stay the First Street
Tim rejected that proposal insisting that discovery and pretrial activity continue. (Young Decl., ¶ 5.)
Gibson, Dunn &
r LLP
PLAINTIFFS’ NOTICE OF MOTION AND MOTION TO COMPEL DEPOSITION OF TIMOTHY BUMB;
MEMORANDUM OF POINT AND AUTHORITIES IN SUPPORT THEREOF
Had Tim agreed to that proposal, Plaintiffs would have been able to defer his deposition until after the
Sutter’s Place trial. However, Plaintiffs are now forced to proceed with discovery for First Street and
must be permitted to depose Tim before Plaintiffs’ opposition to Tim’s MSA No. 3 is due on May 9,
III. ARGUMENT
Tim cannot credibly contest that Plaintiffs are entitled to take the deposition of the Defendant
and Cross-Complainant in this case. In fact, party depositions are such an integral and necessary part
of civil litigation that service of a mere notice suffices to “require” a party—like Tim— “to attend and
to testify.” (Code Civ. Proc., § 2025.280(a).) Thus, when the deposition of a party is properly noticed,
the noticed party must appear, and the failure to do so is the proper subject of a motion to compel. (Id.
§ 2025.450(a).) A party’s “only recourse” to avoid deposition is to
order,” which Tim has not done and has no grounds to do. (See Snyder v. Superior Court (1970) 9
Civ. Proc., § 2025.410, subd. (b);
Furthermore, Tim’s deposition is essential for Plaintiffs’ opposition to Tim’s MSA No. 3. The
claims at issue in that motion, which Tim filed, concern Plaintiffs’ first cause of action for a
declaration that Tim’s actions in December 2021 were invalid. Indeed, Tim filed such motion after
Plaintiffs served him with a deposition notice. Tim’s testimony is critical to a motion concerning the
validity of . (Code Civ. Proc., § 2017.010 [“[A] party may obtain discovery
regarding any matter, not privileged, that is relevant to…the determination of any motion made in that
action…[u]nless otherwise limited
Plaintiffs have met and conferred with counsel for Tim and have attempted in good faith to
select a mutually agreeable date for Tim’s deposition. Despite these repeated attempts, Tim now
refuses to provide available dates, claiming that he is “unavailable for deposition before the May
,” and that he is only available “the last two weeks of May.” (Young
Decl., ¶ 4, Ex. B). The end of May is a full three months after the deposition notice, mere days before
the discovery cutoff, and weeks after Plaintiffs’ opposition to Tim’s MSA No. 3 is due. The fact that
Gibson, Dunn &
r LLP
PLAINTIFFS’ NOTICE OF MOTION AND MOTION TO COMPEL DEPOSITION OF TIMOTHY BUMB;
MEMORANDUM OF POINT AND AUTHORITIES IN SUPPORT THEREOF
Tim’s counsel previously offered a couple dates that were unavailable for Plaintiffs does not relieve
him of the obligation to sit for deposition. Tim cannot simply make himself “unavailable” by retreating
to a home he owns in another state at a crucial juncture in this litigation, calling it a “vacation,” and
That trial is progressing in the Sutter’s Place matter – a lawsuit that Tim filed on behalf of his
casino—is irrelevant. Tim has engaged sophisticated and experienced counsel in this case who are
more than capable of sparing a single day of availability for Tim’s deposition. Any assertion that Tim’s
counsel is similarly unavailable until the last two weeks of May also smacks of gamesmanship – nearly
a dozen separate lawyers have actively represented Tim in the current matter. Plaintiffs too are
preparing for the and will make themselves available at Tim’s
convenience—weekends and holidays included—in order to ensure this essential deposition is taken.
However, because Tim has refused to do so willingly, Plaintiffs request the Court exercise its discretion
to enter an order compelling Tim to sit for deposition prior to the start of trial in on
6, 2024. (See Obregon v. Superior Court (1998) 67 Cal.App.4th 424, 431–32 [“Judges also have broad
discretion in controlling the course of discovery and in making the various decisions necessitated by
discovery proceedings.”]; Oak Grove School Dist. of Santa Clara Cty. v. City Title Ins. Co. (1963) 217
atutes give the trial court wide discretion in making such
orders as may be necessary to protect parties and deponents from abuse or misuse of depositions.”].)
IV. CONCLUSION
For the foregoing reasons, Plaintiffs respectfully request that the Court grant this Motion and
issue an order compelling Tim to make himself available for deposition by Plaintiffs prior to the start
of trial in
Gibson, Dunn &
r LLP
PLAINTIFFS’ NOTICE OF MOTION AND MOTION TO COMPEL DEPOSITION OF TIMOTHY BUMB;
MEMORANDUM OF POINT AND AUTHORITIES IN SUPPORT THEREOF
DATED: April 17, 2024 GIBSON, DUNN & CRUTCHER LLP
Michael D. Celio
Attorneys for Plaintiffs FIRST STREET
HOLDINGS LLC; S.J. BAYSHORE
HOLDINGS LLC; and BRIAN BUMB
Gibson, Dunn &
r LLP
PLAINTIFFS’ NOTICE OF MOTION AND MOTION TO COMPEL DEPOSITION OF TIMOTHY BUMB;
MEMORANDUM OF POINT AND AUTHORITIES IN SUPPORT THEREOF
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GIBSON, DUNN & CRUTCHER LLP Palo Alto, California 94301 Attorneys for Plaintiffs FIRST STREET HOLDINGS LLC; S.J. BAYSHORE HOLDINGS LLC; and BRIAN BUMB STATE OF CALIFORNIA COUNTY OF SANTA CLARA BAYSHORE DEVELOPMENT LLC; S.J. BUMB, AND MOTION TO COMPEL DEPOSITION OF TIMOTHY BUMB; AUTHORITIES IN SUPPORT THEREOF TIMOTHY BUMB; RONALD WERNER; and Date: June 20, 2024 Time: 9:00 a.m. Judge: Hon. Socrates P. Manoukian Action Filed: January 11, 2022 FAC Filed: March 22, 2022 Cross-Complainant, Trial Date: July 1, 2024 ally, and ROES 1 Gibson, Dunn & r LLP PLAINTIFFS’ NOTICE OF MOTION AND MOTION TO COMPEL DEPOSITION OF TIMOTHY BUMB; MEMORANDUM OF POINT AND AUTHORITIES IN SUPPORT THEREOF NOTICE OF MOTION TO ALL PARTIES AND THEIR COUNSEL OF RECORD: PLEASE TAKE NOTICE THAT on June 20, 2024 at 9:00 a.m., or as soon thereafter as counsel may be heard before the Honorable Socrates Manoukian, in Department 20 of the above captioned Court, located at 161 N. First Street, San Jose, CA 95113, Plaintiffs First Street Holdings LLC, S.J. Bayshore Development LLC, S.J. Sweetwater Holdings LLC, and Brian Bumb (collectively, “Plaintiffs”) will and hereby do move this Court for an order compelling Timothy Bumb to make aintiffs prior to May 6, 2024. This Motion is made pursuant to Code of Civil Procedure sections 1987.1, 2025.280, 2017.010 Plaintiffs have met and conferred with counsel for Timothy Bumb regarding the issues presented in this motion. (See Declaration of Lindsey Young (“Young Decl.”) ¶ 3.) This Motion is based on this Notice, and the Memorandum of Points and Authorities, Declaration of Lindsey Young filed herewith, and all of the pleadings, files, and records in this proceeding, and upon such other evidence as may be presented to or considered by the Court prior to its ruling on this Motion. GIBSON, DUNN & CRUTCHER LLP Michael D. Celio Attorneys for Plaintiffs FIRST STREET HOLDINGS LLC; S.J. BAYSHORE HOLDINGS LLC; and BRIAN BUMB Gibson, Dunn & r LLP PLAINTIFFS’ NOTICE OF MOTION AND MOTION TO COMPEL DEPOSITION OF TIMOTHY BUMB; MEMORANDUM OF POINT AND AUTHORITIES IN SUPPORT THEREOF MEMORANDUM OF POINTS AND AUTHORITIES Plaintiffs Brian Bumb, First Street Holdings LLC, S.J. Bayshore Development LLC, and S.J. Sweetwater Holdings LLC (“Plaintiffs”) served a notice of deposition on Timothy Bumb (“Tim”) on February 16, 2024, over two months ago. Tim, the Defendant and Cross-Complainant in this matter, refuses to sit for deposition until after the related trial concludes in mid-May 2024 for no legitimate reason other than hi first day of trial. This is unacceptable. Close of discovery is June 3, 2024 and delays in Tim’s deposition will impair Plaintiffs’ ability to conduct follow up discovery and to prepare for a July 1, 2024 trial. But more importantly, Plaintiffs need Tim’s testimony to oppose Tim’s third motion fo preclude Plaintiffs from developing evidence needed to defeat Tim’s motion. The Court must order II. STATEMENT OF FACTS as to (1) the validity of certain written consents executed by Brian Bumb, and (2) the validity of corporate actions Tim took in December 2021 to usurp control of the Bay 101 Technology Place Association (the “Association”). (See Cross-Complaint of Timothy Bumb for Declaratory Relief.) Tim has since filed three separate motions for summary adjudication (“MSAs”) in this case. Briefing motion for summary adjudication, filed on March 8, 2024, Tim seeks summary judgment on Plaintiffs’ first cause of action for a declaration that Tim’s actions on behalf of the Association in December were invalid. (See Memorandum of Points and Authorities In Support of Defendant/Cross-Complainant Timothy Bumb’s Motion for Summary Adjudication y Relief Claim (The Validity of Certain Acts) (Motion 3).) Specifically, MSA No. 3 centers on whether Tim—with the help of long-time family attorney Ron Werner—had authority to act in a self-interested manner to amend the Association’s CC&Rs, appoint himself and Werner to the Association board, and adopt Gibson, Dunn & r LLP PLAINTIFFS’ NOTICE OF MOTION AND MOTION TO COMPEL DEPOSITION OF TIMOTHY BUMB; MEMORANDUM OF POINT AND AUTHORITIES IN SUPPORT THEREOF bylaws, signage rules, and a parking management plan for the Association. (Ibid.) Plaintiffs’ opposition to MSA No. 3 is due on May 9, 2024, and the hearing on that motion is set for May 23, 2024. (Young Decl., ¶ 6.) The close of fact discovery is June 3, 2024, and trial is set for July 1, 2024. Plaintiffs served a notice of deposition on Tim on February 16, 2024. (Young Decl., ¶ 2, Ex. A [Notice of Deposition to Timothy Bumb].) Tim di rved any objections to that notice of deposition. (Young Decl., ¶ 2.) Over the subsequent weeks, Plaintiffs met and conferred in good faith via email to select a mutually-agreeable date for Tim’s deposition. (Young Decl., ¶ 3, Ex. B at pp. 5-10 [Email Correspondence].) Both parties offered proposed dates but did not ultimately reach agreement on a date when all relevant parties were available. (Ibid. At that point, with a mediation scheduled for April 9, 2024, Plaintiffs determined it would be reasonable to wait until after the mediation to continue discussions, given the possibility that the mediation might obviate the need for the deposition in the first place. (Young Decl., ¶ 4.) After the failed mediation, Plaintiffs followed up with Tim’s counsel the very next day, April 10, 2024, to schedule Tim’s deposition. (Young Decl., ¶ 4, Ex. B at pp. 4-5). In response, Tim’s counsel asserted Sutter’s Place Tim is only available “the last two weeks of May” because he is “out-of-state.” ( ) In reality, Tim is purportedly “unavailable” for over a full month because he chose to retreat to his beach house in Hawaii to avoid his obligation to appear for deposition. During prior discussions about Tim’s indicated that Tim had an upcoming trip planned immediately after the mediation that would make him entirely unavailable for the month leading up to the trial. Had Tim’s counsel shared this information when first negotiating a date for Tim’s deposition, Plaintiffs certainly would have confirmed a date before the April 9 mediation. (Young Decl., ¶ 3.) Tim’s recent decision to flee to Hawaii now appears to be a tactic to prevent Plaintiffs from developing ffered to stay the First Street Tim rejected that proposal insisting that discovery and pretrial activity continue. (Young Decl., ¶ 5.) Gibson, Dunn & r LLP PLAINTIFFS’ NOTICE OF MOTION AND MOTION TO COMPEL DEPOSITION OF TIMOTHY BUMB; MEMORANDUM OF POINT AND AUTHORITIES IN SUPPORT THEREOF Had Tim agreed to that proposal, Plaintiffs would have been able to defer his deposition until after the Sutter’s Place trial. However, Plaintiffs are now forced to proceed with discovery for First Street and must be permitted to depose Tim before Plaintiffs’ opposition to Tim’s MSA No. 3 is due on May 9, III. ARGUMENT Tim cannot credibly contest that Plaintiffs are entitled to take the deposition of the Defendant and Cross-Complainant in this case. In fact, party depositions are such an integral and necessary part of civil litigation that service of a mere notice suffices to “require” a party—like Tim— “to attend and to testify.” (Code Civ. Proc., § 2025.280(a).) Thus, when the deposition of a party is properly noticed, the noticed party must appear, and the failure to do so is the proper subject of a motion to compel. (Id. § 2025.450(a).) A party’s “only recourse” to avoid deposition is to order,” which Tim has not done and has no grounds to do. (See Snyder v. Superior Court (1970) 9 Civ. Proc., § 2025.410, subd. (b); Furthermore, Tim’s deposition is essential for Plaintiffs’ opposition to Tim’s MSA No. 3. The claims at issue in that motion, which Tim filed, concern Plaintiffs’ first cause of action for a declaration that Tim’s actions in December 2021 were invalid. Indeed, Tim filed such motion after Plaintiffs served him with a deposition notice. Tim’s testimony is critical to a motion concerning the validity of . (Code Civ. Proc., § 2017.010 [“[A] party may obtain discovery regarding any matter, not privileged, that is relevant to…the determination of any motion made in that action…[u]nless otherwise limited Plaintiffs have met and conferred with counsel for Tim and have attempted in good faith to select a mutually agreeable date for Tim’s deposition. Despite these repeated attempts, Tim now refuses to provide available dates, claiming that he is “unavailable for deposition before the May ,” and that he is only available “the last two weeks of May.” (Young Decl., ¶ 4, Ex. B). The end of May is a full three months after the deposition notice, mere days before the discovery cutoff, and weeks after Plaintiffs’ opposition to Tim’s MSA No. 3 is due. The fact that Gibson, Dunn & r LLP PLAINTIFFS’ NOTICE OF MOTION AND MOTION TO COMPEL DEPOSITION OF TIMOTHY BUMB; MEMORANDUM OF POINT AND AUTHORITIES IN SUPPORT THEREOF Tim’s counsel previously offered a couple dates that were unavailable for Plaintiffs does not relieve him of the obligation to sit for deposition. Tim cannot simply make himself “unavailable” by retreating to a home he owns in another state at a crucial juncture in this litigation, calling it a “vacation,” and That trial is progressing in the Sutter’s Place matter – a lawsuit that Tim filed on behalf of his casino—is irrelevant. Tim has engaged sophisticated and experienced counsel in this case who are more than capable of sparing a single day of availability for Tim’s deposition. Any assertion that Tim’s counsel is similarly unavailable until the last two weeks of May also smacks of gamesmanship – nearly a dozen separate lawyers have actively represented Tim in the current matter. Plaintiffs too are preparing for the and will make themselves available at Tim’s convenience—weekends and holidays included—in order to ensure this essential deposition is taken. However, because Tim has refused to do so willingly, Plaintiffs request the Court exercise its discretion to enter an order compelling Tim to sit for deposition prior to the start of trial in on 6, 2024. (See Obregon v. Superior Court (1998) 67 Cal.App.4th 424, 431–32 [“Judges also have broad discretion in controlling the course of discovery and in making the various decisions necessitated by discovery proceedings.”]; Oak Grove School Dist. of Santa Clara Cty. v. City Title Ins. Co. (1963) 217 atutes give the trial court wide discretion in making such orders as may be necessary to protect parties and deponents from abuse or misuse of depositions.”].) IV. CONCLUSION For the foregoing reasons, Plaintiffs respectfully request that the Court grant this Motion and issue an order compelling Tim to make himself available for deposition by Plaintiffs prior to the start of trial in Gibson, Dunn & r LLP PLAINTIFFS’ NOTICE OF MOTION AND MOTION TO COMPEL DEPOSITION OF TIMOTHY BUMB; MEMORANDUM OF POINT AND AUTHORITIES IN SUPPORT THEREOF DATED: April 17, 2024 GIBSON, DUNN & CRUTCHER LLP Michael D. Celio Attorneys for Plaintiffs FIRST STREET HOLDINGS LLC; S.J. BAYSHORE HOLDINGS LLC; and BRIAN BUMB Gibson, Dunn & r LLP PLAINTIFFS’ NOTICE OF MOTION AND MOTION TO COMPEL DEPOSITION OF TIMOTHY BUMB; MEMORANDUM OF POINT AND AUTHORITIES IN SUPPORT THEREOF