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PATION & SULLIVAN LLP
PLEASANTON, CA,
Randy Sullivan, Esq. (SBN 229326)
Ralph Kokka, Esq. (SBN 143519)
Dylan R. Williams, Esq. (SBN 282123)
PATTON & SULLIVAN LLP
6600 Koll Center Parkway, Suite 250
Pleasanton, California 94566-8058
925-600-1800 Phone
925-600-1802 Fax
randy@pattonsullivan.com
ralph@pattonsullivan.com
dylan@pattonsullivan.com
Attorneys for Defendants
PAUL HEMMING, WENDY HEMMING and
55 NATOMA LLC
Attorneys for Cross-Complainant
WENDY HEMMING, an individual, and
WENDY HEMMING, individually and on
behalf of the derivative claims of PANTHEON
SF, LLC
ELECTRONICALLY
FILED
Superior Court of California,
County of San Francisco
09/13/2016
Clerk of the Court
BY:DAVID YUEN
Deputy Clerk
SUPERIOR COURT OF CALIFORNIA
COUNTY OF SAN FRANCSICO
HOWARD/FIRST, LLC, a Delaware
limited liability company,
Plaintiff,
ve
PAUL HEMMING, an individual; WENDY
HEMMING, an individual; 55 NATOMA
LLC, a Washington limited liability
company; and DOES | through 50,
inclusive,
Defendants.
“AND RELATED CROSS ACTION.
Case No. CGC 15-547246
(Unlimited Jurisdiction]
DISCOVERY
DEFENDANT/CROSS-COMPLAINANT
WENDY HEMMING’S MEMORANDUM.
OF POINTS AND AUTHORITIES IN
SUPPORT OF MOTION TO COMPEL
FURTHER RESPONSES TO REQUESTS
FOR PRODUCTION OF DOCUMENTS,
SET ONE, AND FOR MONETARY
SANCTIONS
DATE: octabest 2016
TIME: 9:00 a.m.
DEPT.: 302 (Hon. Harold Kahn)
Complaint Filed: August 7, 2015
Cross-Complaint Filed: October 30, 2015
DEFENDANT/CROSS-COMPLAINANT WENDY HEMMING’S MEMORANDUM OF POINTS AND.
AUTHORITIES IN SUPPORT OF MOTION TO COMPEL FURTHER RESPOINSES TO REQUESTS FOR
PRODUCTION
DOCUMENTS, SET ONE, AND FOR MONETARY SANCTIONS,
5720628
AFTON & SULLIVAN LLP
PREASANTON,CA
TABLE OF CONTENTS
1, INTRODUCTION
Tl. STATEMENT OF FACTS... escsssssssesssssessessesneessenceseenesseeneaneeseensenneeneeneenseny diseeseeneneeneenenaes 2
A. BRIEF STATEMENT OF THE CASE.. wd
TH. «= THE SUBJECT DISCOVERY |... esccsscsssesestesesseesssseesseseeneseaneeneseeneareneneeneatens pardedatatatetate! 3
1, The Document Requests Seek Discoverable and Relevant Information
Needed for the Hemmings’ Prosecution and Defense of This Lawsuit...... 4
2. Howard/First’s Reliance On Boilerplate Objections In Response To Fach
And Every Document Request Is Evasive And Improper .. id
3. Howard/First’s Narrow Reading Of Document Requests For Business
Plans Is Evasive And Not In Good Faith ......ccssecsessseeseersesntennecnersneeens 10
4. Howard/First’s Objection On Grounds Basic Terms Used In The Requests
Are Vague And Ambiguous Is Not A Valid Basis For Refusing To
COmply...csseessessesssessessesscssssnesssenessensssseesseaseneateqaseescenseaceneenesnsenes a 11
TV. MEET AND CONFER EFFORTS ou... cc cecsceseseesestesessessssseseesseacaescsnssesnaseensseaneneareneenss 11
Vv. MONETARY SANCTIONS... eccceeeccesseesseseseseescsneseeseacssaneaesseensneenerenseneenanenernees peeseenee 13
VI. CONCLUSION... ceececseeesecsestecsseessesesscseesssesnssnsesesevssesseseasancassuseescesessoncaeseassenasennaneaneneense 14
DEFENDANT/CROSS-COMPLAINANT WENDY HEMMING’S MEMORANDUM OF POINTS AND i
AUTHORITIES IN SUPPORT OF MOTION TO COMPEL FURTHER RESPOINSES ‘TO REQUESTS FOR
PRODUCTION OF DOCUMENTS, SET ONE, AND FOR MONETARY SANCTIONS No, CGC 15-54724628
PATTON & SUBAAVA LLP
PLEASANTON, CA.
TABLE OF AUTHORITIES
Page(s
CASES
Ameri-Medical Corp. v. Workers’ Compensation Appeals Board
(1996) 42 Cal. App.4th 1260 ....ccccsssssussseeasiseessniasuneineeieeneeceieesatistianrsensusstinsssnnsnee 5
Deyo v. Kilbourne
(1978) 84 Cal-App.3d 771 sscscccscsscssessessesetseenstsiustineenstnesinsietinsissustatissatisetiennese ul
Hecht, Solberg, Robinson Goldberg & Bagley v. caper Court
(2006) 137 Cal.App.4th 579
Korea Data Systems Co. v. Superior Court
(1997) 51 Cal. App.4! 1513 s.cssssscssescnsecsnsesssessnssssesseseenssteeneeseee
STATUTES
Code of Civil Procedure
§ 962. ....
§ 2017.010.
§ 2023.010(d)-( (
2023,030.
§ 2030.240(
§ 2031.310(a)(1)
§ 2031.310(h)....
OTHER AUTHORITIES
California Practice Guide: Civil Procedure Before Trial
(Weil and Brown) § 8:1084
DEFENDANTYCROSS-COMPLAINANT WENDY HEMMING’S MEMORANDUM OF POTNTS AND i
AUTHORITIES IN SUPPORT OF MOTION TO COMPEL FURTHER RESPOINSES TO REQUESTS FOR
PRODUCTION OF DOCUMENTS, SET ONE, AND FOR MONETARY SANCTIONS No, CGC 15-54724628
PATTON & SULLIVAN LLP
PLEASANTON, CA.
I. INTRODUCTION
This motion to compel is brought against Plaintiff and Cross Defendant Howard/First,
LLC (“Howard/First”). The discovery at issue is Requests for Production of Documents, Set
One, propounded by Defendant and Cross-Complainants Wendy Hemming (“Ms. Hemming”).
In response to the Document Requests Howard/First raised improper and evasive
objections, refused to produce clearly relevant documents, and generally failed to conform its
responses to comply with the code.
The underlying lawsuit arises out of a joint venture created to pursue the purchase of
Parcel F, which was owned by the TJPA. The Cross-Defendants in this case secretly competed
with Cross-Complainants Paul Hemming, Ms. Hemming (referred to collectively as “the
Hemmings”) in violation of their joint venture. The secret competition resulted in the Hemmings
being denied an opportunity to partner with someone to acquire Parcel F, and denied them their
opportunity to acquire Parcel F. The results of the Cross-Defendants’ misconduct has
substantially damaged the Hemmings by denying them the opportunity to develop Parcel I, but
also by diminishing the property value of their real property located at 540 Howard Street. The
Hemmings’ property is located directly east of Parcel F.
The Document Requests seck documents related to the properties, parties, and Jand
transaction at the center of this lawsuit.
Despite exhaustive meet and confer efforts, and the clear relevance of the discovery
sought, Howard/First refuses to withdraw its meritless objections, or produce the requested
documents. To the contrary, Howard/First’s Supplemental Responses following meet and confer
efforts raise only more meaningless objections, and refuse to comply with more requests than its
initial responses.
Given the backwards progress in meet and confer efforts, and Howard/First’s obstruction
of basic discovery, the Hemmings now move the Court for an order compelling Howard/First to
withdraw its meritless objections and comply with the Document Requests.
Hl
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DEFENDANT/CROSS-COMPLAINANT WENDY HEMMING'S MEMORANDUM OF POINTS AND 1
AUTHORITIES IN SUPPORT OF MOTION TO COMPEL FURTHER RESPOINSES TO REQUESTS FOR
PRODUCTION OF DOCUMENTS, SET ONE, AND FOR MONETARY SANCTIONS No. CGC 15-547246un
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Ii. STATEMENT OF FACTS
A. BRIEF STATEMENT OF THE CASE
This Lawsuit Involves Cross-Defendants’ Breach Of A Joint Venture Agreement For The
Acquisition And Development Of Parcel F And Adjacent Properties,
Crescent Heights is a large nationwide builder that constructs and develops high-rise
developments. This case arises out of Crescent Heights’s interest in acquiring Parcel F at the
best possible terms. Parcel F was one of the last remaining high rise developments available for
purchase near the Transbay Transit Center, ‘The Transbay Transit Center is to become the
Grand Central Station of the west coast. (Req. Jud. Notice: First Amended Cross-Complaint.)
Parcel F was owned and managed by the Transbay Joint Powers Authority (“TJPA”). It
was sold through a public bidding process. The public bidding process began in mid-2015, and
was only recently completed. As explained, Ms. Hemming was denied an opportunity to
participate duc to her reliance on a joint venture she believed the Cross-Defendants were
honoring. (Req. Jud. Notice: First Amended Cross-Complaint.)
Ms. Hemming owns real property located to the east of Parcel F. ‘The real property is
located at 540 Howard Street, San Francisco. In early 2014, it was commonly known that the
TJPA was preparing to consider selling Parcel ', As a result, Wendy Hemming was regularly
contacted by builders and developers that were interested in buying her property or partnering
with her to acquire Parcel F. Because 540 Howard was located directly adjacent to Parcel F, it
increased the development potential, and thereby made any partnership involving 540 Howard a
better candidate to purchase Parcel F. (Req. Jud. Notice: First Amended Cross-Complaint.)
Crescent Heights was one of the developers interested in acquiring Parcel F and entering
into an agreement with Wendy Hemming. Crescent Heights was successful in persuading Wendy
Hemming to form a joint venture with its LLC — Howard/First, LLC. Howard/First, LLC
(‘Howard/First”) owns real property located one lot east of 540 Howard Street. The
Howard/First Property is located at 524 Howard Street. In between the two properties is 530
Mf
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DEFENDANT/CROSS-COMPLAINANT WENDY HEMMING’S MEMORANDUM OF POINTS AND 2
AUTHORITIES IN SUPPORT OF MOTION TO COMPEL FURTHER RESPOINSES TO REQUESTS FOR
PRODUCTION OF DOCUMENTS, SET ONE, AND FOR MONETARY SANCTIONS No. CGC 15-54724628
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Howard Street, which is owned by a third party.! (Req. Jud. Notice: First Amended Cross-
Complaint.)
‘The purpose of the Joint Venture Agreement was to jointly acquire and develop Parcel F.
In entering into the Joint Venture Agreement, Crescent Heights succeeded in precluding other
developers interested in pursuing Parcel F and assembling a high-rise development with Ms.
Hemming’s adjacent 540 Howard Street property. (Req. Jud. Notice: First Amended Cross-
Complaint.)
More importantly, the Cross-Defendants formed a secret LLC that directly competed with
the Joint Venture. Specifically, once it was time to bid on Parcel F, Crescent Heights formed its
own competing secret LLC. While the Joint Venture Agreement was still in full force and effect,
the competing LLC submitted its own competing bid to purchase Parcel F without the Hemmings
knowledge or consent. The secret LLC’s competing bid to purchase Parcel F was in direct
violation of the Joint Venture Agreement. Having not been advised of the secret LLC, and in
reliance upon Crescent Heights’ good faith participation in the Joint Venture, Wendy Hemming
forewent the opportunity to partner with other interested builders and developers while Parcel F
was still for sale. (Req. Jud. Notice: First Amended Cross-Complaint.)
Ill. THE SUBJECT DISCOVERY
Howard/First Has Failed And Refused To Produce Basic Documents Related To The
Properties, Parties, And Agreements At The Center Of This Lawsuit.
On November 25, 2015, the Hemmings propounded written discovery upon.
Howard/First, including Requests for Production of Documents, Set One (“Document
Requests”). (Declaration of Dylan Williams (“Williams Decl.”) 3 Exh. 1.) The Document
Requests include 232 categories of documents. (Williams Decl. § 3 Exh. 1.) In the supplemental
discovery responses (“Supplemental Responses”) at issue, Howard/First refuses to comply with
or respond to approximately 98 of the Document Requests, representing that it will comply with
just 134. (Williams Decl. { 6, Exh. 4.)
' The properties located at 524 Howard Street, 530 Howard Street, and 540 Howard
Street are hereinafter referred to collectively as “Howard Street Properties.”
DEFENDANT/CROSS-COMPLAINANT WENDY HEMMING’S MEMORANDUM OF POINTS AND 3
AUTHORITIES IN SUPPORT OF MOTION TO COMPEL FURTHER RESPOINSES TO REQUESTS FOR
PRODUCTION OF DOCUMENTS, SET ONE, AND FOR MONETARY SANCTIONS No. CGC 15-547246
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Notably, Howard/First represents that it will comply with more requests in its initial
responses than it does in its Supplemental Responses, which were served after meet and confer
efforts. In its initial discovery responses, Howard/First refused to comply with 46 of the 232
requests based on largely boilerplate objections. (Williams Decl. {4 Exh, 2.) Howard/First also
initially failed to produce any documents in response to the Document Requests. (Williams
Decl. { 4.) Disappointed with the evasive objections and lack of documents, on March 21, 2016
counsel for the Hemmings sent a meet and confer letter raising issue with Howard/First’s
meritless and boilerplate objections, refusal to comply with certain requests, and failure to
produce any documents, (Williams Decl. { 5.) In response, Howard/First finally produced
documents, and served the Supplemental Responses at issue here. (Williams Decl. { 6.) The
Supplemental Responses, however, contain all the problems within Howard/First’s initial
responses, and raise new meritless objections. (Williams Decl. § 6.) Specifically, the
supplemental responses raise more objections than the initial responses. (Williams Decl. { 6.)
Furthermore, Howard/First reverses course in its Supplemental Responses, and now refuses to
comply with or respond to 98 of the Document Requests, whereas it initially refused to comply
with 46. (Williams Decl. J 6.)
Given the backwards progress between Howard/First’s initial responses and its
Supplemental Responses, on August 17, 2016, counsel for the Hemmings sent a meet and confer
letter demanding that Howard/First withdraw its improper objections, and comply with the
requests. (Williams Decl. { 7 Exh. 5.) To date, however, Howard/First has failed to respond to
the meet and confer letter, amend its Supplemental Responses, or supplement its document
production,
1. THE DOCUMENT REQUESTS SEEK DISCOVERABLE AND
RELEVANT INFORMATION NEEDED FOR THE HEMMINGS’
PROSECUTION AND DEFENSE OF THIS LAWSUIT
“A party may obtain discovery regarding any matter, not privileged, that is relevant to the
subject matter involved in the pending action ... if the matter either is itself admissible in
evidence or appears reasonably calculated to lead to the discovery of admissible evidence.”
DEFENDANT/CROSS-COMPLAINANT WENDY HEMMING’S MEMORANDUM OF POINTS AND 4
AUTHORITIES IN SUPPORT OF MOTION TO COMPEL FURTHER RESPOINSES TO REQUESTS FOR:
PRODUCTION OF DOCUMENTS, SET ONE, AND FOR MONETARY SANCTIONS No. CGC 15-54724628
TATTON & SULLIVAN LLP
PLEASANTON, CA
C.C.P. § 2017.010; C.C.P. § 2031.010, Statutory provisions allowing for discovery are liberally
applied, See e.g. Irvington-Moore, Inc. v. Superior Court (1993) 14 Cal.App.4th 733, and any
doubts as to relevance are generally resolved in favor of permitting discovery. Hecht, Solberg,
Robinson Goldberg & Bagley v. Superior Court (2006) 137 Cal.App.4th 579, 595 (quoting
Ameri-Medical Corp. v. Workers’ Compensation Appeals Board (1996) 42 Cal.App.4th 1260,
1287). A party may move for an order compelling further response to the demand if: (1) “[a]
statement of compliance is incomplete”; (2) a representation of inability to comply is
“4nadequate, incomplete, or evasive,” or (3) “an objection in the response is without merit or too
general.” C.C.P. § 2031,310(a).
The Document Requests at issue here are clearly within the broad ambit of discoverable
information, and relate directly to the properties, parties, and land transaction at the center of this
lawsuit. These requests include, but are not limited to’, the following:
. Requests for Production of Documents Nos. 1, 2, 3, 4, 5, 6, 7, 8, 9, 10 request
documents related to 524 Howard Street, which is owned by Howard/First.
The Documents Requests relate to the purchase of 524 Howard Street, the value
of 524 Howard Street, development plans for 524 Howard Street, business plans
for 524 Howard Street, entitlements of 524 Howard Street, and proposed
development of 524 Howard Street with 530 Howard Street, among other things.
These documents are relevant to this lawsuit because a primary purpose of the
Joint Venture Agreement is to jointly acquire and develop both 524 Howard
Street and $30 Howard Street. Further, the Joint Venture Agreement prohibits
Howard/First from independently selling the 524 Howard Street property, or
negotiating to acquire the 530 Howard Street property. The requested documents
may be used to measure damages, evidence Howard/First performance under the
Joint Venture Agreement, and the parties’ knowledge and motive in entering into
the Joint Venture Agreement, among other things. As such, the requested
? The Separate Statement filed herewith contains a more thorough description of
Howard/First’s responses at issue.
DEFENDANT/CROSS-COMPLAINANT WENDY HEMMING’S MEMORANDUM OF POINTS AND 5
AUTHORITIES IN SUPPORT OF MOTION TO COMPEL FURTHER RESPOINSES TO REQUESTS FOR
PRODUCTION OF DOCUMENTS, SET ONE, AND FOR MONETARY SANCTIONS No. CGC 15-54724628
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documents are well within the broad scope of discoverable information in this
case.
Requests for Production of Documents Nos. 7, 8, 10, 11, 12, 13, 14, 15, 16, 17,
and 18 request documents related to 530 Howard Street, which is located
between the parties’ respective properties, and is owned by a third party.
The documents requested relate to development of the 530 Howard Street
property with the 524 Howard Street property, the value of the 530 Howard Street
property, financial documents related to the acquisition and development of the
530 Howard Street property, any offers to purchase 530 Howard Street, and
communications with third-parties regarding the 530 Howard Street property, As
such, the requested documents are well within the broad scope of discoverable
information in this case.
Request for Production of Documents Nos. 25, 26, 28, 37, 38, 39, 80, 81, 82,
83, 91, 93, 100, 101, 103, 104, 105, 106, 107, 152, 153, 154, 185, 186, 187
request financial documents related to the Hemmings’ 540 Howard Street
property and Parcel F. Documents requested include Crescent Heights’ value
estimates, return on investment analyses, and potential developments, among
other things. The documents requested are directly relevant to this lawsuit. The
540 Howard Street Property is not only owned by the Hemmings, but also an
integral part of the land deal and assembled development contemplated within the
Joint Venture Agreement. The basic financial documents requested will
Howard/First’s knowledge and motivations with regard to 540 Howard Street
Property and developments at issue. Further, the financial documents requested
evidence the value of the 540 Howard Street Property and proposed development,
and therefore are directly relevant to damages, including any missed
opportunities. As such, the requested documents are well within the broad scope
of discoverable information in this case.
DEFENDANT/CROSS-COMPLAINANT WENDY HEMMING’S MEMORANDUM OF POINTS AND 6
AUTHORITIES IN SUPPORT OF MOTION ‘1O COMPEL FURTHER RESPOINSES TO REQUESTS FOR
PRODUCTION OF DOCUMENTS, SET ONE, AND FOR MONETARY SANCTIONS No. CGC 15-54724628
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Requests for Production of Documents Nos. 84, 85, 86, 87, 94, 95, 104, 105,
106, and 107 request documents evidencing Howard/First, as manager of the
Joint Venture, provided the Hemmings with financial documents related 540
Howard Street, Parcel F, and the investments and developments proposed
within the Joint Venture Agreement. The requested documents evidence
whether Howard/First, who managed the Joint Venture, withheld information
relevant to the Joint Venture from the Hemmings. This evidences the parties’
relative knowledge during the term of the Joint Venture Agreement, and any
asymmetry of information when the Termination Agreement was signed. As
such, the requested documents are well within the broad scope of discoverable
information in this case.
Requests for Production of Documents Nos. 115, 116, 117, 118, 119, 120, 121,
122, 123 and 124 request minutes, notes, and memoranda relating to
meetings between Howard/First and the Hemmings. ‘Ihe requested documents
evidence important communications between the parties relating to the property
and transaction at issue. These documents evidence the negotiations and
agreements at issue in this lawsuit, Crescent Heights’ knowledge and motives,
and whether the parties acted in good faith, among other things. As such, the
requested documents are well within the broad scope of discoverable information
in this case.
Request for Production of Documents No. 134 requests all PowerPoint
presentations related to Parcel F uscd in meetings with the joint venture’s
law firm Gibson Dunn & Crutcher, LLP. These documents are clearly relevant
to the operation of the Joint Venture at issue in this lawsuit, and each party’s
participation therein, Because Gibson Dunn & Crutcher served as counsel for
both parties, neither the attorney work product doctrine nor the attorney-client
privilege applies. See C.C.P. § 962 (“Where two or more clients have retained or
DEFENDANT/CROSS-COMPLATNANT WENDY HEMMING'S MEMORANDUM OF POINTS AND 7
AUTHORITIES IN SUPPORT OF MOTION TO COMPEL FURTHER RESPOINSES TO REQUESTS FOR
PRODUCTION OF DOCUMENTS, SET ONE, AND FOR MONETARY SANCTIONS No, CGC 15-547246oD Wm ND
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consulted a lawyer upon a matter of common interest, none of them ... may claim
a privilege ... as to a communication made in the course of that relationship ....”).
. Requests for Production of Documents Nos, 226 and 229 request all TJPA
prequalification applications for the purchase of Parcel F, either entirely or
partially completed by Howard/First. The requested documents are directly
relevant to this lawsuit. In order to bid on Parcel F, the TJPA initially required
that the parties submit a Prequalification Application. Howard/First has claimed
throughout this lawsuit that it could not complete the ‘JPA’s Prequalification
Application by the TJPA’s deadline without specific information from Ms.
Hemming. The Hemmings claim that Howard/First had all the information
needed for the TIPA’s Prequalification Application. Therefore, there is currently
a dispute between the parties as to whether Howard/First had all the information
needed to fill out the TIPA’s Prequalification Application. Copies of
Howard/First’s partial or fully completed Prequalification Application is relevant
to the information available to Howard/First at the time the TJPA’s
Prequalification Application was due. As such, the requested documents are well
within the broad scope of discoverable information in this case.
Howard/First objects to cach of the requests above on grounds of relevancy. This
objection lacks merit to the extent each request seeks documents related directly to the property,
parties, and transaction at the center of this lawsuit. Further, even assuming, arguendo, that the
requests are objectionable in part on relevancy grounds, Howard/First must nevertheless respond
in good faith with respect to the remainder of the request. See C.C.P. § 2031.240(a) (“If only
part of an item or category of item in a demand for inspection, copying, testing, or sampling is
objectionable, the response shall contain a statement of compliance, or a representation of
inability to comply with respect to the remainder of that item or category.”)
Howard/First’s refusal to comply with these requests is not in good faith. This is readily
apparent from the clear relevance of the documents requested, and Howard/First’s initial
representation that that it would comply with many of these requests, and produce “all relevant,
DEFENDAN'T/CROSS-COMPLAINANT WENDY HEMMING’S MEMORANDUM OF POINTS AND 8
AUTHORITIES IN SUPPORT OF MOTION TO COMPEL FURTHER RESPOINSES TO REQUESTS FOR
PRODUCTION OF DOCUMENTS, SET ONE, AND FOR MONETARY SANCTIONS, No, CGC 15-547246S
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non-privileged or otherwise protected documents within [its] care, custody and control.” It was
only in Howard/First’s Supplemental Responses, after mect and confer efforts, that Howard/First
refused to comply with many of these requests. Howard/First has provided no explanation for its
reversal—either in its Supplemental Responses or through meet and confer efforts—and relies
upon the same meaningless boilerplate objections initially raised. It is clear from these
circumstances, particularly Howard/First’s unexplained reversal in complying with the requests,
that it is simply not operating in good faith.
2. HOWARD/FIRST’S RELIANCE ON BOILERPLATE OBJECTIONS
IN RESPONSE TO EACH AND EVERY DOCUMENT REQUEST IS
EVASIVE AND IMPROPER
Howard/First uses the same boilerplate objection in response to all 232 Document
Requests, as follows:
Responding Party objects to this request on the basis that it is vague, ambiguous,
and overbroad and fails to reasonably particularize each category of documents
requested as required by Code of Civil Procedure section 2031.010. Responding
Party objects to this request and the Request for Production of Documents on
grounds that it is burdensome, oppressive and harassing because Defendant sets
forth an unreasonable, unjustified and excessive amount of requests for
documents, Responding Party further objects to this request on grounds that it
seeks information that is not reasonably calculated to lead to admissible evidence.
Responding Party objects to this request on grounds that it infringes upon the
right to privacy of Responding Party. Responding Party objects to this request on
grounds that it seeks confidential commercial information, trade secret
information, proprietary business information and/or information which is
protected from disclosure by the attorney-client privilege and/or the attorney work
product doctrine.
When used in response to all 232 document requests, the boilerplate objection lacks the
specificity required by the code, and is grounds for sanctions. C.C.P. § 2030.240(b)(2) (Party
objecting to discovery must “[s]et forth clearly the extent of, and the specific ground for, the
objection.”); See Korea Data Systems Co. v. Superior Court (1997) 51 Cal_App.4" 1513, 1516
(boilerplate objections for attorney client privilege may be grounds for certain sanctions)
(dictum), Furthermore, Howard/First fails to “[i]dentify with particularity any document ... to
which an objection is being made,” as required by California Code of Civil Procedure section
2031,240(b)(1). Without some specificity, the boilerplate objections are improper, and not a
DEFENDANT/CROSS-COMPLAINANT WENDY HEMMING’S MEMORANDUM OF POINTS AND 9
AUTHORITIES IN SUPPORT OF MOTION TO COMPEL FURTHER RESPOINSES TO REQUESTS FOR
PRODUCTION OF DOCUMENTS, SET ONE, AND FOR MONETARY SANCTIONS No. CGC 15-547246,
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valid basis for withholding relevant documents, or refusing to comply with requests. This is
especially problematic here because even where Howard/First appears to comply with a request,
it is unclear whether documents are being withheld based on the boilerplate objections.
In its Supplemental Responses, Howard/First represents that it will produce documents in
response to only 134 of the 232 document requests, stating:
Subject to and without waiving the foregoing objections, Responding Party
responds as follows: Responding Party will produce any responsive, relevant,
non-privileged or otherwise not protected documents within Responding Party’s
possession, custody or control.
In conjunction with the Howard/First’s boilerplate objections, however, it is impossible
to tell whether Howard/First actually complies with the request, or is relying upon the boilerplate
objections to withhold documents. Under these circumstances, Howard/First’s statement of
compliance to these requests is incomplete pursuant to California’ Code Civil Procedure section
2031.310(a)(1).
Based on the foregoing, the Hemmings respectfully request that this Court order
Howard/First to withdraw its boilerplate objection from all 232 document requests, and clarify
whether it is withholding documents or complying with each request.
3. HOWARD/FIRST’S NARROW READING OF DOCUMENT
REQUESTS FOR BUSINESS PLANS IS EVASIVE AND NOT IN
GOOD FAITH
Requests for Production of Documents Nos. 5, 10, 30, 40, 77, 78, 79, 88, 89, 92, 98, 99,
102, 108, 109, 155 request copies of any “business plan[s]” related to the properties and
proposed developments at issue in this lawsuit.
In response, Howard/First intentionally misconstrues the plain language of the request for
“business documents,” instead responding only as to documents “entitled ‘business plan.’” This
contrived, narrow reading is clearly evasive and not in good faith. For one, Howard/First’s
initial responses to these requests provided that it would “produce all relevant, non-privileged or
otherwise protected documents....,” with no qualification as to documents “entitled ‘business
plan.” (Williams Decl. Exh. 2.) It was only in its Supplemental Responses, after meet and
DEFENDANT/CROSS-COMPLAINANT WENDY HEMMING’S MEMORANDUM OF POINTS AND 10
AUTHORITIES IN SUPPORT OF MOTION TO COMPEL FURTHER RESPOINSES TO REQUESTS FOR
PRODUCTION OF DOCUMENTS, SET ONE, AND FOR MONETARY SANCTIONS No, CGC 15-547246
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confer efforts, that Howard/First chose to limit its responses to documents “entitled Business
Plan.” (Williams Decl. Exh. 4.)
Based on the foregoing, the Hemmings respectfully request that the Court issue an order
compelling Howard/First to fully comply with requests for business plans, and supplement its
document production with all responsive business plans in its possession, custody or control.
4. HOWARD/FIRST’S OBJECTION ON GROUNDS THAT BASIC
TERMS USED IN THE REQUESTS ARE VAGUE AND
AMBIGUOUS IS NOT A VALID BASIS FOR REFUSING TO
COMPLY
Throughout Howard/First’s Supplemental Responses it objects to requests for basic
business documents on grounds the terms used in the requests—such as “assembled
development,” “financial pro formas,” “business plan,” etc.—are vague and ambiguous.
(Williams Decl. Exhs. 2, 4.) Howard/First’s reliance on this meaningless objection is too
extensive to list each response here.
Courts generally do not sustain objections on grounds of ambiguity unless the question is
“totally unintelligible,” and a responding party has a duty to respond in good faith as best they
can. See Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 783; California Practice Guide: Civil
Procedure Before Trial (Weil and Brown) at [ 8:1084. The basic business terms objected to here
are straightforward, and do not make the requests unintelligible whatsoever. Further, as the
affiliate of a national real estate developer, Howard/First should have no difficulty understanding
the basic terms used.
Based on the foregoing, the Hemmings respectfully request that the Court issue an order
compelling Howard/First to withdraw its vagueness objections as to the basic terms used in the
requests, and respond in good faith to the best of its ability.
IV. MEET AND CONFER EFFORTS
Howard/First Has Failed And Refused To Meet And Confer In Good Faith To Resolve
This Discovery Dispute.
dl
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Counsel for the Hemmings first met and conferred with Howard/First’s counsel over the
phone regarding Howard/First’s initial failure to produce any documents. Thereafter, on March
21, 2016, counsel for the Hemmings sent a lengthy meet and confer letter regarding
Howard/First’s defective responses to the Document Requests and other written discovery. The
March 21, 2016 meet and confer letter raised issue with the same meritless objections cited in
this motion, including: Howard/First’s boilerplate objections, Howard/First’s objections that
documents related to 524 Howard Street and 530 Howard Street are not relevant, and
Howard/First’s objection that basic terms are vague and ambiguous, among other things.
(Williams Decl. 4 5 Exh. 3.)
Although Howard/First produced documents in response to the meet and confer letter, its
Supplemental Responses fail to correct the issues identified in the meet and confer letter, and
contain more defects than the initial written responses. Specifically, whereas the initial
responses refused to comply with 46 of the 232 document requests, the Supplemental Responses
refuse to comply with 98 of the document requests. (Williams Decl. { 6.) Further, Howard/First
failed to remove the meritless objections in the initial responses, and even raised many new
meritless objections in its Supplemental Responses. (Williams Decl. {[ 6.)
Given the apparent backward progress following meet and confer efforts, on August 17,
2016, counsel for the Hemmings sent a follow up meet and confer letter addressing the old and
new defects in Howard/First’s Supplemental Responses. (Williams Decl. 7.) On August 19,
2016, counsel for the Hemmings received a phone call regarding the meet and confer letter from
Theodore Senet (“Mr. Senet”), counsel for Howard/First. (Williams Decl. 7.) Mr. Senet
represented that he was unable to discuss the substance of the meet and confer letter because he
had not reviewed it, but that his associate Michele Ellison would be available to discuss after
returning from vacation the following week. (Williams Decl. 7.) To date, counsel for
Howard/First has not responded with any further phone call or written correspondence, or served
any amended supplemental responses, following the August 17, 2016 meet and confer letter.
(Williams Decl. 47.)
We
DEFENDANT/CROSS-COMPLAINANT WENDY HEMMING’S MEMORANDUM OF POINTS AND. 12
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PATFON & SULLIVAN LLP
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Howard/First has failed to mect and confer in good faith. Rather than using the meet and
confer process to resolve the obvious defects in the discovery responses, Howard/T'irst has
altogether ignored requests to withdraw its meritless objections, and appears to be using the
Hemmings’ lengthy meet and confer efforts merely to delay or further obstruct the production of
documents. Howard/First has failed to meaningfully explain through the meet and confer
process either its generally evasive objections, or complete reversal in agreeing to comply with
certain requests. Ultimately, after significant meet and confer efforts by Hemming, and ample
opportunity to correct the deficiencies, loward/First’s written responses contain more defects
than before the meet and confer process commenced, Having exhausted meet and confer efforts
with no progress in resolving the defects raised herein, the Hemmings are left with little option
but to file this motion in order to obtain the documents needed to defend and prosecute this
lawsuit.
Vv. MONETARY SANCTIONS
Monetary Sanctions Are Appropriate Here Given Howard/First’s Evasive And Meritless
Objections, And Refusal To Meet And Confer In Good Faith
“The court may impose a monetary sanction ordering that one engaging in the misuse of
the discovery process, or any attomey advising that conduct, or both pay the reasonable
expenses, including attorney’s fees, incurred by anyone as a result of that conduct.” C.C.P. §
2023.030. Misuses of the discovery process include, but are not limited to, failing to submit to
an authorized method of discovery, making an unmeritorious objection to discovery, making an
evasive discovery response, and failing to meet and confer in good faith. C.C.P. § 2023.010(d)-
(f) (i). Further, the court must impose a monetary sanction against any party or attorney who
unsuccessfully makes or opposes a motion to compel further responses to a demand for
inspection, unless the party subject to the sanction acted with substantial justification, or
imposing the sanction would be otherwise unjust. C.C.P. § 2031.310(h).
There are multiple grounds for sanctions here. Howard/First has raised clearly evasive
and meritless objections to avoid basic discovery. Each of the requests objected to seek
information related to the property, parties, or agreements at the center of this lawsuit. The
DEFENDANT/CROSS-COMPLAINANT WENDY HEMMING’S MEMORANDUM OF POINTS AND 13
AUTHORITIES IN SUPPORT OF MOTION TO COMPEL FURTHER RESPOINSES TO REQUESTS FOR
PRODUCTION OF DOCUMENTS, ONE, AND FOR MONETARY SANCTIONS No. CGC 15-547246lemmings require the information requested to investigate their claims, defend against
Howard/First’s Complaint, measure damages, and identify Doe Defendants, among other things.
The objections relied upon by Howard/First in refusing to respond to this basic discovery—
including the boilerplate objection, and vagueness claims—cannot be defended or justified. This
likely explains why Howard/First has failed and refused to provide any meaningful basis for
these meritless objections through the meet and confer process, because it cannot.
Sanctions are further proper here to the extent Howard/First has failed and refused to
meet and confer in good faith. To the contrary, Howard/First has entirely ignored the
Hemmings’ extensive meet and confer efforts by refusing to explain its objections, refusing to
withdraw its meritless objections, and relying on more meritless objections in its Supplemental
Responses than its initial responses. In doing so, Howard/First has succeeded in delaying the
Hemmings’ access to information, and prejudicing their ability to investigate the case or identify
Doe Defendants.
VI. CONCLUSION
Ms. Hemming respectfully requests that the Court issue an order compelling
Howard/First to withdraw its meritless objections, and respond to each request in good faith.
Ms. Hemming further requests an award of monetary sanctions in the amount of $3,560 for the
costs and attorney’s fees incurred in having to bring this motion to compel.
Dated: September |Z. 2016 PATTON & SULLIVAN LLP
LLIVAN
RALPH KOKKA
DYLAN R. WILLIAM
Attorneys for for Defendants
PAUL HEMMING, WENDY HEMMING an
55 NATOMA LLC; Attorneys for Cross-
Complainant WENDY HEMMING, an
individual, and WENDY HEMMING,
individually and on behalf of the derivative
claims of PANTHEON SF, LLC
DEFENDANT/CROSS-COMPLAINANT WENDY HEMMINGS MEMORANDUM OF POINTS AND ‘14
AUTHORITIES IN SUPPORT OF MOTION TO COMPEL FURTHER RESPOINSES TO REQUESTS FOR
PRODUCTION OF DOCUMENTS, ONE, AND FOR MONETARY SANCTIONS, No. CGC 15-547246
Preview
28 PATION & SULLIVAN LLP PLEASANTON, CA, Randy Sullivan, Esq. (SBN 229326) Ralph Kokka, Esq. (SBN 143519) Dylan R. Williams, Esq. (SBN 282123) PATTON & SULLIVAN LLP 6600 Koll Center Parkway, Suite 250 Pleasanton, California 94566-8058 925-600-1800 Phone 925-600-1802 Fax randy@pattonsullivan.com ralph@pattonsullivan.com dylan@pattonsullivan.com Attorneys for Defendants PAUL HEMMING, WENDY HEMMING and 55 NATOMA LLC Attorneys for Cross-Complainant WENDY HEMMING, an individual, and WENDY HEMMING, individually and on behalf of the derivative claims of PANTHEON SF, LLC ELECTRONICALLY FILED Superior Court of California, County of San Francisco 09/13/2016 Clerk of the Court BY:DAVID YUEN Deputy Clerk SUPERIOR COURT OF CALIFORNIA COUNTY OF SAN FRANCSICO HOWARD/FIRST, LLC, a Delaware limited liability company, Plaintiff, ve PAUL HEMMING, an individual; WENDY HEMMING, an individual; 55 NATOMA LLC, a Washington limited liability company; and DOES | through 50, inclusive, Defendants. “AND RELATED CROSS ACTION. Case No. CGC 15-547246 (Unlimited Jurisdiction] DISCOVERY DEFENDANT/CROSS-COMPLAINANT WENDY HEMMING’S MEMORANDUM. OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO COMPEL FURTHER RESPONSES TO REQUESTS FOR PRODUCTION OF DOCUMENTS, SET ONE, AND FOR MONETARY SANCTIONS DATE: octabest 2016 TIME: 9:00 a.m. DEPT.: 302 (Hon. Harold Kahn) Complaint Filed: August 7, 2015 Cross-Complaint Filed: October 30, 2015 DEFENDANT/CROSS-COMPLAINANT WENDY HEMMING’S MEMORANDUM OF POINTS AND. AUTHORITIES IN SUPPORT OF MOTION TO COMPEL FURTHER RESPOINSES TO REQUESTS FOR PRODUCTION DOCUMENTS, SET ONE, AND FOR MONETARY SANCTIONS, 5720628 AFTON & SULLIVAN LLP PREASANTON,CA TABLE OF CONTENTS 1, INTRODUCTION Tl. STATEMENT OF FACTS... escsssssssesssssessessesneessenceseenesseeneaneeseensenneeneeneenseny diseeseeneneeneenenaes 2 A. BRIEF STATEMENT OF THE CASE.. wd TH. «= THE SUBJECT DISCOVERY |... esccsscsssesestesesseesssseesseseeneseaneeneseeneareneneeneatens pardedatatatetate! 3 1, The Document Requests Seek Discoverable and Relevant Information Needed for the Hemmings’ Prosecution and Defense of This Lawsuit...... 4 2. Howard/First’s Reliance On Boilerplate Objections In Response To Fach And Every Document Request Is Evasive And Improper .. id 3. Howard/First’s Narrow Reading Of Document Requests For Business Plans Is Evasive And Not In Good Faith ......ccssecsessseeseersesntennecnersneeens 10 4. Howard/First’s Objection On Grounds Basic Terms Used In The Requests Are Vague And Ambiguous Is Not A Valid Basis For Refusing To COmply...csseessessesssessessesscssssnesssenessensssseesseaseneateqaseescenseaceneenesnsenes a 11 TV. MEET AND CONFER EFFORTS ou... cc cecsceseseesestesessessssseseesseacaescsnssesnaseensseaneneareneenss 11 Vv. MONETARY SANCTIONS... eccceeeccesseesseseseseescsneseeseacssaneaesseensneenerenseneenanenernees peeseenee 13 VI. CONCLUSION... ceececseeesecsestecsseessesesscseesssesnssnsesesevssesseseasancassuseescesessoncaeseassenasennaneaneneense 14 DEFENDANT/CROSS-COMPLAINANT WENDY HEMMING’S MEMORANDUM OF POINTS AND i AUTHORITIES IN SUPPORT OF MOTION TO COMPEL FURTHER RESPOINSES ‘TO REQUESTS FOR PRODUCTION OF DOCUMENTS, SET ONE, AND FOR MONETARY SANCTIONS No, CGC 15-54724628 PATTON & SUBAAVA LLP PLEASANTON, CA. TABLE OF AUTHORITIES Page(s CASES Ameri-Medical Corp. v. Workers’ Compensation Appeals Board (1996) 42 Cal. App.4th 1260 ....ccccsssssussseeasiseessniasuneineeieeneeceieesatistianrsensusstinsssnnsnee 5 Deyo v. Kilbourne (1978) 84 Cal-App.3d 771 sscscccscsscssessessesetseenstsiustineenstnesinsietinsissustatissatisetiennese ul Hecht, Solberg, Robinson Goldberg & Bagley v. caper Court (2006) 137 Cal.App.4th 579 Korea Data Systems Co. v. Superior Court (1997) 51 Cal. App.4! 1513 s.cssssscssescnsecsnsesssessnssssesseseenssteeneeseee STATUTES Code of Civil Procedure § 962. .... § 2017.010. § 2023.010(d)-( ( 2023,030. § 2030.240( § 2031.310(a)(1) § 2031.310(h).... OTHER AUTHORITIES California Practice Guide: Civil Procedure Before Trial (Weil and Brown) § 8:1084 DEFENDANTYCROSS-COMPLAINANT WENDY HEMMING’S MEMORANDUM OF POTNTS AND i AUTHORITIES IN SUPPORT OF MOTION TO COMPEL FURTHER RESPOINSES TO REQUESTS FOR PRODUCTION OF DOCUMENTS, SET ONE, AND FOR MONETARY SANCTIONS No, CGC 15-54724628 PATTON & SULLIVAN LLP PLEASANTON, CA. I. INTRODUCTION This motion to compel is brought against Plaintiff and Cross Defendant Howard/First, LLC (“Howard/First”). The discovery at issue is Requests for Production of Documents, Set One, propounded by Defendant and Cross-Complainants Wendy Hemming (“Ms. Hemming”). In response to the Document Requests Howard/First raised improper and evasive objections, refused to produce clearly relevant documents, and generally failed to conform its responses to comply with the code. The underlying lawsuit arises out of a joint venture created to pursue the purchase of Parcel F, which was owned by the TJPA. The Cross-Defendants in this case secretly competed with Cross-Complainants Paul Hemming, Ms. Hemming (referred to collectively as “the Hemmings”) in violation of their joint venture. The secret competition resulted in the Hemmings being denied an opportunity to partner with someone to acquire Parcel F, and denied them their opportunity to acquire Parcel F. The results of the Cross-Defendants’ misconduct has substantially damaged the Hemmings by denying them the opportunity to develop Parcel I, but also by diminishing the property value of their real property located at 540 Howard Street. The Hemmings’ property is located directly east of Parcel F. The Document Requests seck documents related to the properties, parties, and Jand transaction at the center of this lawsuit. Despite exhaustive meet and confer efforts, and the clear relevance of the discovery sought, Howard/First refuses to withdraw its meritless objections, or produce the requested documents. To the contrary, Howard/First’s Supplemental Responses following meet and confer efforts raise only more meaningless objections, and refuse to comply with more requests than its initial responses. Given the backwards progress in meet and confer efforts, and Howard/First’s obstruction of basic discovery, the Hemmings now move the Court for an order compelling Howard/First to withdraw its meritless objections and comply with the Document Requests. Hl Mt DEFENDANT/CROSS-COMPLAINANT WENDY HEMMING'S MEMORANDUM OF POINTS AND 1 AUTHORITIES IN SUPPORT OF MOTION TO COMPEL FURTHER RESPOINSES TO REQUESTS FOR PRODUCTION OF DOCUMENTS, SET ONE, AND FOR MONETARY SANCTIONS No. CGC 15-547246un om IN DH 10 u 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ‘PATTON & SULLIVAN LLP PLEASANTON, CA, Ii. STATEMENT OF FACTS A. BRIEF STATEMENT OF THE CASE This Lawsuit Involves Cross-Defendants’ Breach Of A Joint Venture Agreement For The Acquisition And Development Of Parcel F And Adjacent Properties, Crescent Heights is a large nationwide builder that constructs and develops high-rise developments. This case arises out of Crescent Heights’s interest in acquiring Parcel F at the best possible terms. Parcel F was one of the last remaining high rise developments available for purchase near the Transbay Transit Center, ‘The Transbay Transit Center is to become the Grand Central Station of the west coast. (Req. Jud. Notice: First Amended Cross-Complaint.) Parcel F was owned and managed by the Transbay Joint Powers Authority (“TJPA”). It was sold through a public bidding process. The public bidding process began in mid-2015, and was only recently completed. As explained, Ms. Hemming was denied an opportunity to participate duc to her reliance on a joint venture she believed the Cross-Defendants were honoring. (Req. Jud. Notice: First Amended Cross-Complaint.) Ms. Hemming owns real property located to the east of Parcel F. ‘The real property is located at 540 Howard Street, San Francisco. In early 2014, it was commonly known that the TJPA was preparing to consider selling Parcel ', As a result, Wendy Hemming was regularly contacted by builders and developers that were interested in buying her property or partnering with her to acquire Parcel F. Because 540 Howard was located directly adjacent to Parcel F, it increased the development potential, and thereby made any partnership involving 540 Howard a better candidate to purchase Parcel F. (Req. Jud. Notice: First Amended Cross-Complaint.) Crescent Heights was one of the developers interested in acquiring Parcel F and entering into an agreement with Wendy Hemming. Crescent Heights was successful in persuading Wendy Hemming to form a joint venture with its LLC — Howard/First, LLC. Howard/First, LLC (‘Howard/First”) owns real property located one lot east of 540 Howard Street. The Howard/First Property is located at 524 Howard Street. In between the two properties is 530 Mf Hl DEFENDANT/CROSS-COMPLAINANT WENDY HEMMING’S MEMORANDUM OF POINTS AND 2 AUTHORITIES IN SUPPORT OF MOTION TO COMPEL FURTHER RESPOINSES TO REQUESTS FOR PRODUCTION OF DOCUMENTS, SET ONE, AND FOR MONETARY SANCTIONS No. CGC 15-54724628 PATTON & SULAAVAN LLP PLEASANTON, CA Howard Street, which is owned by a third party.! (Req. Jud. Notice: First Amended Cross- Complaint.) ‘The purpose of the Joint Venture Agreement was to jointly acquire and develop Parcel F. In entering into the Joint Venture Agreement, Crescent Heights succeeded in precluding other developers interested in pursuing Parcel F and assembling a high-rise development with Ms. Hemming’s adjacent 540 Howard Street property. (Req. Jud. Notice: First Amended Cross- Complaint.) More importantly, the Cross-Defendants formed a secret LLC that directly competed with the Joint Venture. Specifically, once it was time to bid on Parcel F, Crescent Heights formed its own competing secret LLC. While the Joint Venture Agreement was still in full force and effect, the competing LLC submitted its own competing bid to purchase Parcel F without the Hemmings knowledge or consent. The secret LLC’s competing bid to purchase Parcel F was in direct violation of the Joint Venture Agreement. Having not been advised of the secret LLC, and in reliance upon Crescent Heights’ good faith participation in the Joint Venture, Wendy Hemming forewent the opportunity to partner with other interested builders and developers while Parcel F was still for sale. (Req. Jud. Notice: First Amended Cross-Complaint.) Ill. THE SUBJECT DISCOVERY Howard/First Has Failed And Refused To Produce Basic Documents Related To The Properties, Parties, And Agreements At The Center Of This Lawsuit. On November 25, 2015, the Hemmings propounded written discovery upon. Howard/First, including Requests for Production of Documents, Set One (“Document Requests”). (Declaration of Dylan Williams (“Williams Decl.”) 3 Exh. 1.) The Document Requests include 232 categories of documents. (Williams Decl. § 3 Exh. 1.) In the supplemental discovery responses (“Supplemental Responses”) at issue, Howard/First refuses to comply with or respond to approximately 98 of the Document Requests, representing that it will comply with just 134. (Williams Decl. { 6, Exh. 4.) ' The properties located at 524 Howard Street, 530 Howard Street, and 540 Howard Street are hereinafter referred to collectively as “Howard Street Properties.” DEFENDANT/CROSS-COMPLAINANT WENDY HEMMING’S MEMORANDUM OF POINTS AND 3 AUTHORITIES IN SUPPORT OF MOTION TO COMPEL FURTHER RESPOINSES TO REQUESTS FOR PRODUCTION OF DOCUMENTS, SET ONE, AND FOR MONETARY SANCTIONS No. CGC 15-547246 |Bw oN 28 PAYTON & SULLIVAN LLP PLEASANTON, CA Notably, Howard/First represents that it will comply with more requests in its initial responses than it does in its Supplemental Responses, which were served after meet and confer efforts. In its initial discovery responses, Howard/First refused to comply with 46 of the 232 requests based on largely boilerplate objections. (Williams Decl. {4 Exh, 2.) Howard/First also initially failed to produce any documents in response to the Document Requests. (Williams Decl. { 4.) Disappointed with the evasive objections and lack of documents, on March 21, 2016 counsel for the Hemmings sent a meet and confer letter raising issue with Howard/First’s meritless and boilerplate objections, refusal to comply with certain requests, and failure to produce any documents, (Williams Decl. { 5.) In response, Howard/First finally produced documents, and served the Supplemental Responses at issue here. (Williams Decl. { 6.) The Supplemental Responses, however, contain all the problems within Howard/First’s initial responses, and raise new meritless objections. (Williams Decl. § 6.) Specifically, the supplemental responses raise more objections than the initial responses. (Williams Decl. { 6.) Furthermore, Howard/First reverses course in its Supplemental Responses, and now refuses to comply with or respond to 98 of the Document Requests, whereas it initially refused to comply with 46. (Williams Decl. J 6.) Given the backwards progress between Howard/First’s initial responses and its Supplemental Responses, on August 17, 2016, counsel for the Hemmings sent a meet and confer letter demanding that Howard/First withdraw its improper objections, and comply with the requests. (Williams Decl. { 7 Exh. 5.) To date, however, Howard/First has failed to respond to the meet and confer letter, amend its Supplemental Responses, or supplement its document production, 1. THE DOCUMENT REQUESTS SEEK DISCOVERABLE AND RELEVANT INFORMATION NEEDED FOR THE HEMMINGS’ PROSECUTION AND DEFENSE OF THIS LAWSUIT “A party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action ... if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence.” DEFENDANT/CROSS-COMPLAINANT WENDY HEMMING’S MEMORANDUM OF POINTS AND 4 AUTHORITIES IN SUPPORT OF MOTION TO COMPEL FURTHER RESPOINSES TO REQUESTS FOR: PRODUCTION OF DOCUMENTS, SET ONE, AND FOR MONETARY SANCTIONS No. CGC 15-54724628 TATTON & SULLIVAN LLP PLEASANTON, CA C.C.P. § 2017.010; C.C.P. § 2031.010, Statutory provisions allowing for discovery are liberally applied, See e.g. Irvington-Moore, Inc. v. Superior Court (1993) 14 Cal.App.4th 733, and any doubts as to relevance are generally resolved in favor of permitting discovery. Hecht, Solberg, Robinson Goldberg & Bagley v. Superior Court (2006) 137 Cal.App.4th 579, 595 (quoting Ameri-Medical Corp. v. Workers’ Compensation Appeals Board (1996) 42 Cal.App.4th 1260, 1287). A party may move for an order compelling further response to the demand if: (1) “[a] statement of compliance is incomplete”; (2) a representation of inability to comply is “4nadequate, incomplete, or evasive,” or (3) “an objection in the response is without merit or too general.” C.C.P. § 2031,310(a). The Document Requests at issue here are clearly within the broad ambit of discoverable information, and relate directly to the properties, parties, and land transaction at the center of this lawsuit. These requests include, but are not limited to’, the following: . Requests for Production of Documents Nos. 1, 2, 3, 4, 5, 6, 7, 8, 9, 10 request documents related to 524 Howard Street, which is owned by Howard/First. The Documents Requests relate to the purchase of 524 Howard Street, the value of 524 Howard Street, development plans for 524 Howard Street, business plans for 524 Howard Street, entitlements of 524 Howard Street, and proposed development of 524 Howard Street with 530 Howard Street, among other things. These documents are relevant to this lawsuit because a primary purpose of the Joint Venture Agreement is to jointly acquire and develop both 524 Howard Street and $30 Howard Street. Further, the Joint Venture Agreement prohibits Howard/First from independently selling the 524 Howard Street property, or negotiating to acquire the 530 Howard Street property. The requested documents may be used to measure damages, evidence Howard/First performance under the Joint Venture Agreement, and the parties’ knowledge and motive in entering into the Joint Venture Agreement, among other things. As such, the requested ? The Separate Statement filed herewith contains a more thorough description of Howard/First’s responses at issue. DEFENDANT/CROSS-COMPLAINANT WENDY HEMMING’S MEMORANDUM OF POINTS AND 5 AUTHORITIES IN SUPPORT OF MOTION TO COMPEL FURTHER RESPOINSES TO REQUESTS FOR PRODUCTION OF DOCUMENTS, SET ONE, AND FOR MONETARY SANCTIONS No. CGC 15-54724628 PATTON & SULLAVAN LLP PLEASANTON, CA documents are well within the broad scope of discoverable information in this case. Requests for Production of Documents Nos. 7, 8, 10, 11, 12, 13, 14, 15, 16, 17, and 18 request documents related to 530 Howard Street, which is located between the parties’ respective properties, and is owned by a third party. The documents requested relate to development of the 530 Howard Street property with the 524 Howard Street property, the value of the 530 Howard Street property, financial documents related to the acquisition and development of the 530 Howard Street property, any offers to purchase 530 Howard Street, and communications with third-parties regarding the 530 Howard Street property, As such, the requested documents are well within the broad scope of discoverable information in this case. Request for Production of Documents Nos. 25, 26, 28, 37, 38, 39, 80, 81, 82, 83, 91, 93, 100, 101, 103, 104, 105, 106, 107, 152, 153, 154, 185, 186, 187 request financial documents related to the Hemmings’ 540 Howard Street property and Parcel F. Documents requested include Crescent Heights’ value estimates, return on investment analyses, and potential developments, among other things. The documents requested are directly relevant to this lawsuit. The 540 Howard Street Property is not only owned by the Hemmings, but also an integral part of the land deal and assembled development contemplated within the Joint Venture Agreement. The basic financial documents requested will Howard/First’s knowledge and motivations with regard to 540 Howard Street Property and developments at issue. Further, the financial documents requested evidence the value of the 540 Howard Street Property and proposed development, and therefore are directly relevant to damages, including any missed opportunities. As such, the requested documents are well within the broad scope of discoverable information in this case. DEFENDANT/CROSS-COMPLAINANT WENDY HEMMING’S MEMORANDUM OF POINTS AND 6 AUTHORITIES IN SUPPORT OF MOTION ‘1O COMPEL FURTHER RESPOINSES TO REQUESTS FOR PRODUCTION OF DOCUMENTS, SET ONE, AND FOR MONETARY SANCTIONS No. CGC 15-54724628 PATTON & SULLIVAN LLP PLEASANTON, CA Mt Requests for Production of Documents Nos. 84, 85, 86, 87, 94, 95, 104, 105, 106, and 107 request documents evidencing Howard/First, as manager of the Joint Venture, provided the Hemmings with financial documents related 540 Howard Street, Parcel F, and the investments and developments proposed within the Joint Venture Agreement. The requested documents evidence whether Howard/First, who managed the Joint Venture, withheld information relevant to the Joint Venture from the Hemmings. This evidences the parties’ relative knowledge during the term of the Joint Venture Agreement, and any asymmetry of information when the Termination Agreement was signed. As such, the requested documents are well within the broad scope of discoverable information in this case. Requests for Production of Documents Nos. 115, 116, 117, 118, 119, 120, 121, 122, 123 and 124 request minutes, notes, and memoranda relating to meetings between Howard/First and the Hemmings. ‘Ihe requested documents evidence important communications between the parties relating to the property and transaction at issue. These documents evidence the negotiations and agreements at issue in this lawsuit, Crescent Heights’ knowledge and motives, and whether the parties acted in good faith, among other things. As such, the requested documents are well within the broad scope of discoverable information in this case. Request for Production of Documents No. 134 requests all PowerPoint presentations related to Parcel F uscd in meetings with the joint venture’s law firm Gibson Dunn & Crutcher, LLP. These documents are clearly relevant to the operation of the Joint Venture at issue in this lawsuit, and each party’s participation therein, Because Gibson Dunn & Crutcher served as counsel for both parties, neither the attorney work product doctrine nor the attorney-client privilege applies. See C.C.P. § 962 (“Where two or more clients have retained or DEFENDANT/CROSS-COMPLATNANT WENDY HEMMING'S MEMORANDUM OF POINTS AND 7 AUTHORITIES IN SUPPORT OF MOTION TO COMPEL FURTHER RESPOINSES TO REQUESTS FOR PRODUCTION OF DOCUMENTS, SET ONE, AND FOR MONETARY SANCTIONS No, CGC 15-547246oD Wm ND 28 PATTON & SULLAVAN LLP PLEASANTON, CA. consulted a lawyer upon a matter of common interest, none of them ... may claim a privilege ... as to a communication made in the course of that relationship ....”). . Requests for Production of Documents Nos, 226 and 229 request all TJPA prequalification applications for the purchase of Parcel F, either entirely or partially completed by Howard/First. The requested documents are directly relevant to this lawsuit. In order to bid on Parcel F, the TJPA initially required that the parties submit a Prequalification Application. Howard/First has claimed throughout this lawsuit that it could not complete the ‘JPA’s Prequalification Application by the TJPA’s deadline without specific information from Ms. Hemming. The Hemmings claim that Howard/First had all the information needed for the TIPA’s Prequalification Application. Therefore, there is currently a dispute between the parties as to whether Howard/First had all the information needed to fill out the TIPA’s Prequalification Application. Copies of Howard/First’s partial or fully completed Prequalification Application is relevant to the information available to Howard/First at the time the TJPA’s Prequalification Application was due. As such, the requested documents are well within the broad scope of discoverable information in this case. Howard/First objects to cach of the requests above on grounds of relevancy. This objection lacks merit to the extent each request seeks documents related directly to the property, parties, and transaction at the center of this lawsuit. Further, even assuming, arguendo, that the requests are objectionable in part on relevancy grounds, Howard/First must nevertheless respond in good faith with respect to the remainder of the request. See C.C.P. § 2031.240(a) (“If only part of an item or category of item in a demand for inspection, copying, testing, or sampling is objectionable, the response shall contain a statement of compliance, or a representation of inability to comply with respect to the remainder of that item or category.”) Howard/First’s refusal to comply with these requests is not in good faith. This is readily apparent from the clear relevance of the documents requested, and Howard/First’s initial representation that that it would comply with many of these requests, and produce “all relevant, DEFENDAN'T/CROSS-COMPLAINANT WENDY HEMMING’S MEMORANDUM OF POINTS AND 8 AUTHORITIES IN SUPPORT OF MOTION TO COMPEL FURTHER RESPOINSES TO REQUESTS FOR PRODUCTION OF DOCUMENTS, SET ONE, AND FOR MONETARY SANCTIONS, No, CGC 15-547246S yn a 28 PATRON & SULLIVAN LLP PLEASANTON, CA. non-privileged or otherwise protected documents within [its] care, custody and control.” It was only in Howard/First’s Supplemental Responses, after mect and confer efforts, that Howard/First refused to comply with many of these requests. Howard/First has provided no explanation for its reversal—either in its Supplemental Responses or through meet and confer efforts—and relies upon the same meaningless boilerplate objections initially raised. It is clear from these circumstances, particularly Howard/First’s unexplained reversal in complying with the requests, that it is simply not operating in good faith. 2. HOWARD/FIRST’S RELIANCE ON BOILERPLATE OBJECTIONS IN RESPONSE TO EACH AND EVERY DOCUMENT REQUEST IS EVASIVE AND IMPROPER Howard/First uses the same boilerplate objection in response to all 232 Document Requests, as follows: Responding Party objects to this request on the basis that it is vague, ambiguous, and overbroad and fails to reasonably particularize each category of documents requested as required by Code of Civil Procedure section 2031.010. Responding Party objects to this request and the Request for Production of Documents on grounds that it is burdensome, oppressive and harassing because Defendant sets forth an unreasonable, unjustified and excessive amount of requests for documents, Responding Party further objects to this request on grounds that it seeks information that is not reasonably calculated to lead to admissible evidence. Responding Party objects to this request on grounds that it infringes upon the right to privacy of Responding Party. Responding Party objects to this request on grounds that it seeks confidential commercial information, trade secret information, proprietary business information and/or information which is protected from disclosure by the attorney-client privilege and/or the attorney work product doctrine. When used in response to all 232 document requests, the boilerplate objection lacks the specificity required by the code, and is grounds for sanctions. C.C.P. § 2030.240(b)(2) (Party objecting to discovery must “[s]et forth clearly the extent of, and the specific ground for, the objection.”); See Korea Data Systems Co. v. Superior Court (1997) 51 Cal_App.4" 1513, 1516 (boilerplate objections for attorney client privilege may be grounds for certain sanctions) (dictum), Furthermore, Howard/First fails to “[i]dentify with particularity any document ... to which an objection is being made,” as required by California Code of Civil Procedure section 2031,240(b)(1). Without some specificity, the boilerplate objections are improper, and not a DEFENDANT/CROSS-COMPLAINANT WENDY HEMMING’S MEMORANDUM OF POINTS AND 9 AUTHORITIES IN SUPPORT OF MOTION TO COMPEL FURTHER RESPOINSES TO REQUESTS FOR PRODUCTION OF DOCUMENTS, SET ONE, AND FOR MONETARY SANCTIONS No. CGC 15-547246, | | | | ; |28 PATON & SULLIVAN LLP ‘PLEASANTON, CA valid basis for withholding relevant documents, or refusing to comply with requests. This is especially problematic here because even where Howard/First appears to comply with a request, it is unclear whether documents are being withheld based on the boilerplate objections. In its Supplemental Responses, Howard/First represents that it will produce documents in response to only 134 of the 232 document requests, stating: Subject to and without waiving the foregoing objections, Responding Party responds as follows: Responding Party will produce any responsive, relevant, non-privileged or otherwise not protected documents within Responding Party’s possession, custody or control. In conjunction with the Howard/First’s boilerplate objections, however, it is impossible to tell whether Howard/First actually complies with the request, or is relying upon the boilerplate objections to withhold documents. Under these circumstances, Howard/First’s statement of compliance to these requests is incomplete pursuant to California’ Code Civil Procedure section 2031.310(a)(1). Based on the foregoing, the Hemmings respectfully request that this Court order Howard/First to withdraw its boilerplate objection from all 232 document requests, and clarify whether it is withholding documents or complying with each request. 3. HOWARD/FIRST’S NARROW READING OF DOCUMENT REQUESTS FOR BUSINESS PLANS IS EVASIVE AND NOT IN GOOD FAITH Requests for Production of Documents Nos. 5, 10, 30, 40, 77, 78, 79, 88, 89, 92, 98, 99, 102, 108, 109, 155 request copies of any “business plan[s]” related to the properties and proposed developments at issue in this lawsuit. In response, Howard/First intentionally misconstrues the plain language of the request for “business documents,” instead responding only as to documents “entitled ‘business plan.’” This contrived, narrow reading is clearly evasive and not in good faith. For one, Howard/First’s initial responses to these requests provided that it would “produce all relevant, non-privileged or otherwise protected documents....,” with no qualification as to documents “entitled ‘business plan.” (Williams Decl. Exh. 2.) It was only in its Supplemental Responses, after meet and DEFENDANT/CROSS-COMPLAINANT WENDY HEMMING’S MEMORANDUM OF POINTS AND 10 AUTHORITIES IN SUPPORT OF MOTION TO COMPEL FURTHER RESPOINSES TO REQUESTS FOR PRODUCTION OF DOCUMENTS, SET ONE, AND FOR MONETARY SANCTIONS No, CGC 15-547246 | 328 PATTON & SULLIVAN LLP PLEASANTON, CA confer efforts, that Howard/First chose to limit its responses to documents “entitled Business Plan.” (Williams Decl. Exh. 4.) Based on the foregoing, the Hemmings respectfully request that the Court issue an order compelling Howard/First to fully comply with requests for business plans, and supplement its document production with all responsive business plans in its possession, custody or control. 4. HOWARD/FIRST’S OBJECTION ON GROUNDS THAT BASIC TERMS USED IN THE REQUESTS ARE VAGUE AND AMBIGUOUS IS NOT A VALID BASIS FOR REFUSING TO COMPLY Throughout Howard/First’s Supplemental Responses it objects to requests for basic business documents on grounds the terms used in the requests—such as “assembled development,” “financial pro formas,” “business plan,” etc.—are vague and ambiguous. (Williams Decl. Exhs. 2, 4.) Howard/First’s reliance on this meaningless objection is too extensive to list each response here. Courts generally do not sustain objections on grounds of ambiguity unless the question is “totally unintelligible,” and a responding party has a duty to respond in good faith as best they can. See Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 783; California Practice Guide: Civil Procedure Before Trial (Weil and Brown) at [ 8:1084. The basic business terms objected to here are straightforward, and do not make the requests unintelligible whatsoever. Further, as the affiliate of a national real estate developer, Howard/First should have no difficulty understanding the basic terms used. Based on the foregoing, the Hemmings respectfully request that the Court issue an order compelling Howard/First to withdraw its vagueness objections as to the basic terms used in the requests, and respond in good faith to the best of its ability. IV. MEET AND CONFER EFFORTS Howard/First Has Failed And Refused To Meet And Confer In Good Faith To Resolve This Discovery Dispute. dl DEFENDANT/CROSS-COMPLAINANT WENDY HEMMING’S MEMORANDUM OF POINTS AND 11 AUTHORITIES IN SUPPORT OF MOTION TO COMPEL FURTHER RESPOINSES TO REQUESTS FOR PRODUCTION OF DOCUMENTS, SET ONE, AND FOR MONETARY SANCTIONS No, CGC 15-547246 | :oD Wm ND 28 PATTON & SULLIVAN LLP PEEASANTON, CA. Counsel for the Hemmings first met and conferred with Howard/First’s counsel over the phone regarding Howard/First’s initial failure to produce any documents. Thereafter, on March 21, 2016, counsel for the Hemmings sent a lengthy meet and confer letter regarding Howard/First’s defective responses to the Document Requests and other written discovery. The March 21, 2016 meet and confer letter raised issue with the same meritless objections cited in this motion, including: Howard/First’s boilerplate objections, Howard/First’s objections that documents related to 524 Howard Street and 530 Howard Street are not relevant, and Howard/First’s objection that basic terms are vague and ambiguous, among other things. (Williams Decl. 4 5 Exh. 3.) Although Howard/First produced documents in response to the meet and confer letter, its Supplemental Responses fail to correct the issues identified in the meet and confer letter, and contain more defects than the initial written responses. Specifically, whereas the initial responses refused to comply with 46 of the 232 document requests, the Supplemental Responses refuse to comply with 98 of the document requests. (Williams Decl. { 6.) Further, Howard/First failed to remove the meritless objections in the initial responses, and even raised many new meritless objections in its Supplemental Responses. (Williams Decl. {[ 6.) Given the apparent backward progress following meet and confer efforts, on August 17, 2016, counsel for the Hemmings sent a follow up meet and confer letter addressing the old and new defects in Howard/First’s Supplemental Responses. (Williams Decl. 7.) On August 19, 2016, counsel for the Hemmings received a phone call regarding the meet and confer letter from Theodore Senet (“Mr. Senet”), counsel for Howard/First. (Williams Decl. 7.) Mr. Senet represented that he was unable to discuss the substance of the meet and confer letter because he had not reviewed it, but that his associate Michele Ellison would be available to discuss after returning from vacation the following week. (Williams Decl. 7.) To date, counsel for Howard/First has not responded with any further phone call or written correspondence, or served any amended supplemental responses, following the August 17, 2016 meet and confer letter. (Williams Decl. 47.) We DEFENDANT/CROSS-COMPLAINANT WENDY HEMMING’S MEMORANDUM OF POINTS AND. 12 AUTHORITIES IN SUPPORT OF MOTION TO COMPEL FURTHER RESPOINSES TO REQUESTS FOR PRODUCTION OF DOCUMENTS, SET ONE, AND FOR MONETARY SANCTIONS No. CGC 15-34724628 PATFON & SULLIVAN LLP PLEASANTON, CA Howard/First has failed to mect and confer in good faith. Rather than using the meet and confer process to resolve the obvious defects in the discovery responses, Howard/T'irst has altogether ignored requests to withdraw its meritless objections, and appears to be using the Hemmings’ lengthy meet and confer efforts merely to delay or further obstruct the production of documents. Howard/First has failed to meaningfully explain through the meet and confer process either its generally evasive objections, or complete reversal in agreeing to comply with certain requests. Ultimately, after significant meet and confer efforts by Hemming, and ample opportunity to correct the deficiencies, loward/First’s written responses contain more defects than before the meet and confer process commenced, Having exhausted meet and confer efforts with no progress in resolving the defects raised herein, the Hemmings are left with little option but to file this motion in order to obtain the documents needed to defend and prosecute this lawsuit. Vv. MONETARY SANCTIONS Monetary Sanctions Are Appropriate Here Given Howard/First’s Evasive And Meritless Objections, And Refusal To Meet And Confer In Good Faith “The court may impose a monetary sanction ordering that one engaging in the misuse of the discovery process, or any attomey advising that conduct, or both pay the reasonable expenses, including attorney’s fees, incurred by anyone as a result of that conduct.” C.C.P. § 2023.030. Misuses of the discovery process include, but are not limited to, failing to submit to an authorized method of discovery, making an unmeritorious objection to discovery, making an evasive discovery response, and failing to meet and confer in good faith. C.C.P. § 2023.010(d)- (f) (i). Further, the court must impose a monetary sanction against any party or attorney who unsuccessfully makes or opposes a motion to compel further responses to a demand for inspection, unless the party subject to the sanction acted with substantial justification, or imposing the sanction would be otherwise unjust. C.C.P. § 2031.310(h). There are multiple grounds for sanctions here. Howard/First has raised clearly evasive and meritless objections to avoid basic discovery. Each of the requests objected to seek information related to the property, parties, or agreements at the center of this lawsuit. The DEFENDANT/CROSS-COMPLAINANT WENDY HEMMING’S MEMORANDUM OF POINTS AND 13 AUTHORITIES IN SUPPORT OF MOTION TO COMPEL FURTHER RESPOINSES TO REQUESTS FOR PRODUCTION OF DOCUMENTS, ONE, AND FOR MONETARY SANCTIONS No. CGC 15-547246lemmings require the information requested to investigate their claims, defend against Howard/First’s Complaint, measure damages, and identify Doe Defendants, among other things. The objections relied upon by Howard/First in refusing to respond to this basic discovery— including the boilerplate objection, and vagueness claims—cannot be defended or justified. This likely explains why Howard/First has failed and refused to provide any meaningful basis for these meritless objections through the meet and confer process, because it cannot. Sanctions are further proper here to the extent Howard/First has failed and refused to meet and confer in good faith. To the contrary, Howard/First has entirely ignored the Hemmings’ extensive meet and confer efforts by refusing to explain its objections, refusing to withdraw its meritless objections, and relying on more meritless objections in its Supplemental Responses than its initial responses. In doing so, Howard/First has succeeded in delaying the Hemmings’ access to information, and prejudicing their ability to investigate the case or identify Doe Defendants. VI. CONCLUSION Ms. Hemming respectfully requests that the Court issue an order compelling Howard/First to withdraw its meritless objections, and respond to each request in good faith. Ms. Hemming further requests an award of monetary sanctions in the amount of $3,560 for the costs and attorney’s fees incurred in having to bring this motion to compel. Dated: September |Z. 2016 PATTON & SULLIVAN LLP LLIVAN RALPH KOKKA DYLAN R. WILLIAM Attorneys for for Defendants PAUL HEMMING, WENDY HEMMING an 55 NATOMA LLC; Attorneys for Cross- Complainant WENDY HEMMING, an individual, and WENDY HEMMING, individually and on behalf of the derivative claims of PANTHEON SF, LLC DEFENDANT/CROSS-COMPLAINANT WENDY HEMMINGS MEMORANDUM OF POINTS AND ‘14 AUTHORITIES IN SUPPORT OF MOTION TO COMPEL FURTHER RESPOINSES TO REQUESTS FOR PRODUCTION OF DOCUMENTS, ONE, AND FOR MONETARY SANCTIONS, No. CGC 15-547246