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Fred W. Schwinn (SBN 225575)
Raeon R. Roulston (SBN 255622)
Matthew C. Salmonsen (SBN 302854)
CONSUMER LAW CENTER, INC.
1435 Koll Circle, Suite 104
San Jose, California 95112-4610
Telephone Number: (408) 294-6100
Facsimile Number: (408) 294-6190
Email Address: fred.schwinn@sjconsumerlaw.com
Attorneys for Defendant/Cross-Complainant
MARIA ANTONIA CANUL
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SANTA CLARA
VELOCITY INVESTMENTS, LLC Case No. 16-CV-300096
(Unlimited Civil Case)
Plaintiff,
MEMORANDUM OF POINTS AND
AUTHORITIES IN SUPPORT OF MOTION
MARIA ANTONIA CANUL TO COMPEL RESPONSES TO DEMAND
Defendant, FOR COPY OF ITEMS OF ACCOUNT AND
FORM INTERROGATORIES (SET ONE)
AND SPECIAL INTERROGATORIES (SET
ONE) AND REQUEST FOR PRODUCTION
OF DOCUMENTS AND
ELECTRONICALLY STORED
INFORMATION (SET ONE) FROM
VELOCITY INVESTMENTS, LLC, AND
FOR MONETARY SANCTIONS
[C.C.P. §§ 2030.290 & 2031.300]
Hearing Date: July 11
Hearing Time: 9:00 a.m.
Hearing Dept.:
Hearing Judge: Peter H. Kirwan
Hearing Location: 161 North First Street
San Jose, California
AND RELATED CROSS-ACTION.
I. PRELIMINARY STATEMENT
Defendant/Cross-Complainant, MARIA ANTONIA CANUL (“CANUL”), requests this Court’s
assistance regarding her Demand for Copy of Items of Account and Form Interrogatories (Set One) and
MEMORANDUM OF POINTS AND AUTHORITIES Case No. 16-CV-300096Special Interrogatories (Set One) and Request for Production of Documents and Electronically Stored
Information (Set One) requesting the production of documents and ESI in this matter. Specifically,
Plaintiff/Cross-Defendant, VELOCITY INVESTMENTS, LLC (“VELOCITY”), has failed to make
any response to CANUL’s Demand for Copy of Items of Account or Form Interrogatories (Set One) or
Special Interrogatories (Set One) or Request for Production of Documents and Electronically Stored
Information (Set One) requesting the production of documents in this matter.
As is set forth below and in the accompanying declaration, VELOCITY’s refusal to respond to
CANUL’s discovery results in an unfair litigation advantage and prejudices CANUL
Accordingly, CANUL respectfully requests the Court to issue an order compelling VELOCITY
to comply with its statutory obligation to provide responses, without objections, to CANUL’s Form
Interrogatories (Set One) and Special Interrogatories (Set One) and produce documents and ESI
responsive to CANUL’s Demand for Copy of Items of Account and Request for Production of
Documents and Electronically Stored Information (Set One)
I. PROCEDURAL HISTORY
On February 19, 2019, CANUL served by first-class mail on Plaintiff/Cross-Defendant,
VELOCITY, Demand for Copy of Items of Account and Form Interrogatories (Set One) and Special
Interrogatories (Set One) and Request for Production of Documents and Electronically Stored
Information (Set One). The deadlines for VELOCITY to respond to these requests were March 6, 2018,
March 26, 2019, March 26, 2019, and March 26, 2019, respectively. However, VELOCITY has to date
made no response of any kind to the discovery propounded on it.
On April 20, 2019, CANUL’s counsel emailed counsel for VELOCITY in this matter,
requesting code-compliant, verified responses to CANUL’s discovery requests and VELOCITY’s code-
compliant document production. As of the date of this motion, CANUL has received no discovery
MEMORANDUM OF POINTS AND AUTHORITIES Case No. 16-CV-300096Come YN DH FB BW NY
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responses or response to his counsel’s meet and confer letter.
On May 7, 2019, CANUL filed and served a Motion to Compel Responses to Demand for Copy
f Items of Account and Form Interrogatorie: t_One) an ial Interrogatories (Set One) an
Request for Production of Documents and Electronically Stored Information (Set One) from Velocity
Investments, LLC, and for Monetary Sanctions, pursuant to Code of Civil Procedure §§ 2030.290 and
2031.300.
II. DEMAND FOR COPY OF ITEMS OF A NT
Code of Civil Procedure § 454 provides in pertinent part as follows:
It is not necessary for a party to set forth in a pleading the items of an account
therein alleged, but he must deliver to the adverse party, within ten days after a demand
thereof in writing, a copy of the account, or be precluded from giving evidence thereof.
The court or judge thereof may order a further account when the one delivered is too
general, or is defective in any particular.
In one of the very few reported cases on this code provision, the 1896 California Supreme Court
had this to say:
In the simplification of pleadings [C.C.P. § 454] is designed to protect the
adverse party from embarrassment upon the trial, by enabling him to demand and obtain
in advance a detailed statement of the items charged against him. If the demand is not
complied with, then, for the refusal or gross neglect, the prescribed penalty may be
exacted.'
As mentioned above, VELOCITY has refused to produce a copy of the documents requested in
the Demand for Copy of Items of Account. VELOCITY should be compelled to produce a copy of the
items of account or the prescribed penalty should be exacted.
IV. INTERROGATORIES,
California Code of Civil Procedure § 2030.290 provides as follows:
If a party to whom interrogatories are directed fails to serve a timely
response, the following rules apply:
' McCarthy v. Mt. Tecarte Land and Water Company, 110 Cal. 687, 692 (1896).
-3-
MEMORANDUM OF POINTS AND AUTHORITIES Case No. 16-CV-300096(b) The party propounding the interrogatories may move for an order
compelling response to the interrogatories.
(c) The court shall impose a monetary sanction under Chapter 7
(commencing with Section 2023.010) against any party, person, or
attorney who unsuccessfully makes or opposes a motion to compel a
response to interrogatories, unless it finds that the one subject to the
sanction acted with substantial justification or that other circumstances
make the imposition of the sanction unjust.
VELOCITY has not served any responses to CANUL’s Form Interrogatories (Set One) and
Special Interrogatories (Set One) and the time permitted for response has expired and has not been
extended by agreement of the parties or order of the Court. Therefore, VELOCITY should be ordered to
answer fully and completely each of the Form Interrogatories (Set One) and Special Interrogatories (Set
One), without objections, because the information sought thereby is relevant to the subject matter of
this action, is not privileged or otherwise exempt from discovery.
V. REQUEST FOR PRODUCTION OF DOCUMENTS
AND ELECTRONICALLY STORED INFORMATION
California Code of Civil Procedure 2031.300 provides as follows:
Ifa party to whom an inspection demand is directed fails to serve a timely
response to it, the following rules apply:
(b) The party making the demand may move for an order compelling
response to the inspection demand.
(c) The court shall impose a monetary sanction under Chapter 7
(commencing with Section 2023.010) against any party, person, or
attorney who unsuccessfully makes or opposes a motion to compel a
response to an inspection demand, unless it finds that the one subject to
the sanction acted with substantial justification or that other
circumstances make the imposition of the sanction unjust.
VELOCITY has not served any responses to CANUL’s Request for Production of Documents
and Electronically Stored Information (Set One) and the time permitted for response has expired and
Code of Civil Procedure § 2030.290.
Code of Civil Procedure § 2031.300.
MEMORANDUM OF POINTS AND AUTHORITIES Case No. 16-CV-300096has not been extended by agreement of the parties or order of the Court. Therefore, VELOCITY should
be ordered to produce the documents and electronically stored information described in the said
Request for Production of Documents and Electronically Stored Information (Set One) or otherwise
respond thereto in the manner required by Code of Civil Procedure § 2031.060, because each of said
matters is relevant to the subject matter of this action and is not privileged or otherwise exempt from
discovery. Good cause exists for the production of each of the matters sought to be discovered by said
request in that the documents and ESI described in said requests are in the sole possession, custody, and
control of VELOCITY and the moving party has no other way of inspecting same or obtaining copies
thereof, and it is necessary to inspect same in order to prepare this case for trial and also in order to
evaluate the merits of VELOCITY’s claims and CANUL’s cross-claims for settlement purposes.
Furthermore, VELOCITY should be ordered to produce all responsive electronically stored
information in its native format, as proscribed by CANUL pursuant to Code of Civil Procedure
2031.030(a)(2) in her Request for Production of Documents and Electronically Stored Information (Set
One). Because VELOCITY has delayed in producing this discovery, it should bear the burden of the
costs associated with compiling the same.
VI. MONETARY SANCTIONS SHOULD BE IMPOSED
Monetary sanctions should be imposed under Code of Civil Procedure §§ 2023.010 and
2023.030(a). Code of Civil Procedure § 2023.010 provides as follows:
Misuses of the discovery process include, but are not limited to, the
following:
(d) Failing to respond or to submit to an authorized method of discovery.
(e) Making, without substantial justification, an unmeritorious objection
to discovery.
(f) Making an evasive response to discovery.
MEMORANDUM OF POINTS AND AUTHORITIES Case No. 16-CV-300096Moreover, Code of Civil Procedure § 2023.030(a) provides as follows:
To the extent authorized by the chapter governing any particular
discovery method or any other provision of this title, the court, after
notice to any affected party, person, or attorney, and after opportunity for
hearing, may impose the following sanctions against anyone engaging in
conduct that is a misuse of the discovery process:
(a) The court may impose a monetary sanction ordering that one
engaging in the misuse of the discovery process, or any attorney advising
that conduct, or both pay the reasonable expenses, including attorney’s
fees, incurred by anyone as a result of that conduct. The court may also
impose this sanction on one unsuccessfully asserting that another has
engaged in the misuse of the discovery process, or on any attorney who
advised that assertion, or on both. If a monetary sanction is authorized by
any provision of this title, the court shall impose that sanction unless it
finds that the one subject to the sanction acted with substantial
justification or that other circumstances make the imposition of the
sanction unjust. (Emphasis added).
As described above, VELOCITY has failed to respond to CANUL’s Demand for Copy of Items
of Account or Form Interrogatories (Set One) or Special Interrogatories (Set One) or Request for
Production of Documents and Electronically Stored Information (Set One) and has failed to permit the
inspection and copying of requested documents. This constitutes a misuse of the discovery process as
defined by Code of Civil Procedure § 2023.010. Said misuse has resulted in the necessity of this Motion
to Compel. CANUL should be reimbursed for the additional costs associated with enforcing her
discovery rights, pursuant to Code of Civil Procedure § 2023.030(a).
VII. CONCLUSION
For the foregoing reasons, CANUL respectfully requests that this Court enter an order: 1)
compelling Plaintiff/Cross-Defendant, VELOCITY, to make code-compliant, verified responses,
without objections, to CANUL’s Form Interrogatories (Set One) and Special Interrogatories (Set One)
and 2) compelling Plaintiff/Cross-Defendant, VELOCITY, to make code-compliant, verified responses,
without objections, and to produce all documents and ESI in its possession, custody, or control
MEMORANDUM OF POINTS AND AUTHORITIES Case No. 16-CV-300096Come YN DH FB BW NY
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responsive to CANUL’s Demand for Copy of Items of Account and Request for Production of
Documents and Electronically Stored Information (Set One). CANUL further requests that this Court
award a monetary sanction against Plaintiff/Cross-Defendant, VELOCITY, in the amount of $2,342.52
and for such other and further relief as the Court deems appropriate under the circumstances.
CONSUMER LAW CENTER, INC.
Dated: May 7, 2019 By: /s/ Fred W. Schwinn
E] Fred W. Schwinn (SBN 225575)
CX Raeon R. Roulston (SBN 255622)
C1 Matthew C. Salmonsen (SBN 302854)
CONSUMER LAW CENTER, INC.
1435 Koll Circle, Suite 104
San Jose, California 95112-4610
Telephone Number: (408) 294-6100
Facsimile Number: (408) 294-6190
Email Address: fred.schwinn@sjconsumerlaw.com
Attorneys for Defendant/Cross-Complainant
MARIA ANTONIA CANUL
-7-
MEMORANDUM OF POINTS AND AUTHORITIES Case No. 16-CV-300096
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Fred W. Schwinn (SBN 225575) Raeon R. Roulston (SBN 255622) Matthew C. Salmonsen (SBN 302854) CONSUMER LAW CENTER, INC. 1435 Koll Circle, Suite 104 San Jose, California 95112-4610 Telephone Number: (408) 294-6100 Facsimile Number: (408) 294-6190 Email Address: fred.schwinn@sjconsumerlaw.com Attorneys for Defendant/Cross-Complainant MARIA ANTONIA CANUL SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SANTA CLARA VELOCITY INVESTMENTS, LLC Case No. 16-CV-300096 (Unlimited Civil Case) Plaintiff, MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION MARIA ANTONIA CANUL TO COMPEL RESPONSES TO DEMAND Defendant, FOR COPY OF ITEMS OF ACCOUNT AND FORM INTERROGATORIES (SET ONE) AND SPECIAL INTERROGATORIES (SET ONE) AND REQUEST FOR PRODUCTION OF DOCUMENTS AND ELECTRONICALLY STORED INFORMATION (SET ONE) FROM VELOCITY INVESTMENTS, LLC, AND FOR MONETARY SANCTIONS [C.C.P. §§ 2030.290 & 2031.300] Hearing Date: July 11 Hearing Time: 9:00 a.m. Hearing Dept.: Hearing Judge: Peter H. Kirwan Hearing Location: 161 North First Street San Jose, California AND RELATED CROSS-ACTION. I. PRELIMINARY STATEMENT Defendant/Cross-Complainant, MARIA ANTONIA CANUL (“CANUL”), requests this Court’s assistance regarding her Demand for Copy of Items of Account and Form Interrogatories (Set One) and MEMORANDUM OF POINTS AND AUTHORITIES Case No. 16-CV-300096Special Interrogatories (Set One) and Request for Production of Documents and Electronically Stored Information (Set One) requesting the production of documents and ESI in this matter. Specifically, Plaintiff/Cross-Defendant, VELOCITY INVESTMENTS, LLC (“VELOCITY”), has failed to make any response to CANUL’s Demand for Copy of Items of Account or Form Interrogatories (Set One) or Special Interrogatories (Set One) or Request for Production of Documents and Electronically Stored Information (Set One) requesting the production of documents in this matter. As is set forth below and in the accompanying declaration, VELOCITY’s refusal to respond to CANUL’s discovery results in an unfair litigation advantage and prejudices CANUL Accordingly, CANUL respectfully requests the Court to issue an order compelling VELOCITY to comply with its statutory obligation to provide responses, without objections, to CANUL’s Form Interrogatories (Set One) and Special Interrogatories (Set One) and produce documents and ESI responsive to CANUL’s Demand for Copy of Items of Account and Request for Production of Documents and Electronically Stored Information (Set One) I. PROCEDURAL HISTORY On February 19, 2019, CANUL served by first-class mail on Plaintiff/Cross-Defendant, VELOCITY, Demand for Copy of Items of Account and Form Interrogatories (Set One) and Special Interrogatories (Set One) and Request for Production of Documents and Electronically Stored Information (Set One). The deadlines for VELOCITY to respond to these requests were March 6, 2018, March 26, 2019, March 26, 2019, and March 26, 2019, respectively. However, VELOCITY has to date made no response of any kind to the discovery propounded on it. On April 20, 2019, CANUL’s counsel emailed counsel for VELOCITY in this matter, requesting code-compliant, verified responses to CANUL’s discovery requests and VELOCITY’s code- compliant document production. As of the date of this motion, CANUL has received no discovery MEMORANDUM OF POINTS AND AUTHORITIES Case No. 16-CV-300096Come YN DH FB BW NY RN NY NY KY NR NK KN NY Se Se Be Be Se Be Be eB eB ect Dw BF YB YH =F So we AY DH BW NHN SF responses or response to his counsel’s meet and confer letter. On May 7, 2019, CANUL filed and served a Motion to Compel Responses to Demand for Copy f Items of Account and Form Interrogatorie: t_One) an ial Interrogatories (Set One) an Request for Production of Documents and Electronically Stored Information (Set One) from Velocity Investments, LLC, and for Monetary Sanctions, pursuant to Code of Civil Procedure §§ 2030.290 and 2031.300. II. DEMAND FOR COPY OF ITEMS OF A NT Code of Civil Procedure § 454 provides in pertinent part as follows: It is not necessary for a party to set forth in a pleading the items of an account therein alleged, but he must deliver to the adverse party, within ten days after a demand thereof in writing, a copy of the account, or be precluded from giving evidence thereof. The court or judge thereof may order a further account when the one delivered is too general, or is defective in any particular. In one of the very few reported cases on this code provision, the 1896 California Supreme Court had this to say: In the simplification of pleadings [C.C.P. § 454] is designed to protect the adverse party from embarrassment upon the trial, by enabling him to demand and obtain in advance a detailed statement of the items charged against him. If the demand is not complied with, then, for the refusal or gross neglect, the prescribed penalty may be exacted.' As mentioned above, VELOCITY has refused to produce a copy of the documents requested in the Demand for Copy of Items of Account. VELOCITY should be compelled to produce a copy of the items of account or the prescribed penalty should be exacted. IV. INTERROGATORIES, California Code of Civil Procedure § 2030.290 provides as follows: If a party to whom interrogatories are directed fails to serve a timely response, the following rules apply: ' McCarthy v. Mt. Tecarte Land and Water Company, 110 Cal. 687, 692 (1896). -3- MEMORANDUM OF POINTS AND AUTHORITIES Case No. 16-CV-300096(b) The party propounding the interrogatories may move for an order compelling response to the interrogatories. (c) The court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel a response to interrogatories, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust. VELOCITY has not served any responses to CANUL’s Form Interrogatories (Set One) and Special Interrogatories (Set One) and the time permitted for response has expired and has not been extended by agreement of the parties or order of the Court. Therefore, VELOCITY should be ordered to answer fully and completely each of the Form Interrogatories (Set One) and Special Interrogatories (Set One), without objections, because the information sought thereby is relevant to the subject matter of this action, is not privileged or otherwise exempt from discovery. V. REQUEST FOR PRODUCTION OF DOCUMENTS AND ELECTRONICALLY STORED INFORMATION California Code of Civil Procedure 2031.300 provides as follows: Ifa party to whom an inspection demand is directed fails to serve a timely response to it, the following rules apply: (b) The party making the demand may move for an order compelling response to the inspection demand. (c) The court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel a response to an inspection demand, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust. VELOCITY has not served any responses to CANUL’s Request for Production of Documents and Electronically Stored Information (Set One) and the time permitted for response has expired and Code of Civil Procedure § 2030.290. Code of Civil Procedure § 2031.300. MEMORANDUM OF POINTS AND AUTHORITIES Case No. 16-CV-300096has not been extended by agreement of the parties or order of the Court. Therefore, VELOCITY should be ordered to produce the documents and electronically stored information described in the said Request for Production of Documents and Electronically Stored Information (Set One) or otherwise respond thereto in the manner required by Code of Civil Procedure § 2031.060, because each of said matters is relevant to the subject matter of this action and is not privileged or otherwise exempt from discovery. Good cause exists for the production of each of the matters sought to be discovered by said request in that the documents and ESI described in said requests are in the sole possession, custody, and control of VELOCITY and the moving party has no other way of inspecting same or obtaining copies thereof, and it is necessary to inspect same in order to prepare this case for trial and also in order to evaluate the merits of VELOCITY’s claims and CANUL’s cross-claims for settlement purposes. Furthermore, VELOCITY should be ordered to produce all responsive electronically stored information in its native format, as proscribed by CANUL pursuant to Code of Civil Procedure 2031.030(a)(2) in her Request for Production of Documents and Electronically Stored Information (Set One). Because VELOCITY has delayed in producing this discovery, it should bear the burden of the costs associated with compiling the same. VI. MONETARY SANCTIONS SHOULD BE IMPOSED Monetary sanctions should be imposed under Code of Civil Procedure §§ 2023.010 and 2023.030(a). Code of Civil Procedure § 2023.010 provides as follows: Misuses of the discovery process include, but are not limited to, the following: (d) Failing to respond or to submit to an authorized method of discovery. (e) Making, without substantial justification, an unmeritorious objection to discovery. (f) Making an evasive response to discovery. MEMORANDUM OF POINTS AND AUTHORITIES Case No. 16-CV-300096Moreover, Code of Civil Procedure § 2023.030(a) provides as follows: To the extent authorized by the chapter governing any particular discovery method or any other provision of this title, the court, after notice to any affected party, person, or attorney, and after opportunity for hearing, may impose the following sanctions against anyone engaging in conduct that is a misuse of the discovery process: (a) The court may impose a monetary sanction ordering that one engaging in the misuse of the discovery process, or any attorney advising that conduct, or both pay the reasonable expenses, including attorney’s fees, incurred by anyone as a result of that conduct. The court may also impose this sanction on one unsuccessfully asserting that another has engaged in the misuse of the discovery process, or on any attorney who advised that assertion, or on both. If a monetary sanction is authorized by any provision of this title, the court shall impose that sanction unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust. (Emphasis added). As described above, VELOCITY has failed to respond to CANUL’s Demand for Copy of Items of Account or Form Interrogatories (Set One) or Special Interrogatories (Set One) or Request for Production of Documents and Electronically Stored Information (Set One) and has failed to permit the inspection and copying of requested documents. This constitutes a misuse of the discovery process as defined by Code of Civil Procedure § 2023.010. Said misuse has resulted in the necessity of this Motion to Compel. CANUL should be reimbursed for the additional costs associated with enforcing her discovery rights, pursuant to Code of Civil Procedure § 2023.030(a). VII. CONCLUSION For the foregoing reasons, CANUL respectfully requests that this Court enter an order: 1) compelling Plaintiff/Cross-Defendant, VELOCITY, to make code-compliant, verified responses, without objections, to CANUL’s Form Interrogatories (Set One) and Special Interrogatories (Set One) and 2) compelling Plaintiff/Cross-Defendant, VELOCITY, to make code-compliant, verified responses, without objections, and to produce all documents and ESI in its possession, custody, or control MEMORANDUM OF POINTS AND AUTHORITIES Case No. 16-CV-300096Come YN DH FB BW NY RN NY NY KY NR NK KN NY Se Se Be Be Se Be Be eB eB ect Dw BF YB YH =F So we AY DH BW NHN SF responsive to CANUL’s Demand for Copy of Items of Account and Request for Production of Documents and Electronically Stored Information (Set One). CANUL further requests that this Court award a monetary sanction against Plaintiff/Cross-Defendant, VELOCITY, in the amount of $2,342.52 and for such other and further relief as the Court deems appropriate under the circumstances. CONSUMER LAW CENTER, INC. Dated: May 7, 2019 By: /s/ Fred W. Schwinn E] Fred W. Schwinn (SBN 225575) CX Raeon R. Roulston (SBN 255622) C1 Matthew C. Salmonsen (SBN 302854) CONSUMER LAW CENTER, INC. 1435 Koll Circle, Suite 104 San Jose, California 95112-4610 Telephone Number: (408) 294-6100 Facsimile Number: (408) 294-6190 Email Address: fred.schwinn@sjconsumerlaw.com Attorneys for Defendant/Cross-Complainant MARIA ANTONIA CANUL -7- MEMORANDUM OF POINTS AND AUTHORITIES Case No. 16-CV-300096