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RICHARD DOYLE, City Attorney (88625)
NORA FRIMANN, Assistant City Attorney (93249)
ARDELL JOHNSON, Chief Deputy City Attorney (95340)
WESLEY M. KLIMCZAK, Senior Deputy City Attorney (294314)
Office of the City Attorney
200 East Santa Clara Street, 16 th Floor
San José, California 95113-1905
Telephone Number: (408) 535-1900
Facsimile Number: (408) 998-3131
E-Mail Address: cao.main@sanjoseca.gov
Attorneys for Defendant CITY OF SAN JOSE
SUPERIOR COURT OF CALIFORNIA, COUNTY OF SANTA CLARA
UNLIMITED JURISDICTION
SUTTER'S PLACE, INC. dba BAY 101, a Case No: 1 CV267311 LEAD)
California corporation, (consolid. with 16CV298883 Non-Lead)
Plaintiff,
CITY OF SAN JOSE’S
v. MEMORANDUM OF POINTS &
AUTHORITIES IN SUPPORT OF
CITY OF SAN JOSE, a California MOTION TO COMPEL PLAINTIFF TO
municipal corporation, the DIVISION OF PROVIDE FURTHER RESPONSES TO
GAMING CONTROL, and DOES 1-100, DEFENDANT’S REQUEST FOR
inclusive, PRODUCTION NOS. 3 AND 4 AND
FOR PRODUCTION OF DOCUMENTS
Defendants.
Date: September 27, 2018
Time: 9:00 a.m.
Dept: 6
Hon. Theodore C. Zayner
Trial Date: November 26, 2018
I. INTRODUCTION AND STATEMENT OF RELEVANT FACTS
This lawsuit includes two consolidated cases arising from the same contract, a
settlement agreement the litigants executed in March 2009. The older complaint, filed
June 30, 2014, sought declaratory and injunctive relief concerning the interpretation of a
term in the settlement agreement for the City to provide information disclosing how it spent
a regulatory fee paid by the two cardrooms operating in the City. Plaintiff filed the second
CITY’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT 1-14-CV267311
OF MOTION TO COMPEL
1553534
1 lawsuit for breach of contract over two years later, on August 22, 2016, seeking attorney’s
2 fees as damages for the City’s alleged failure to provide sufficient information to disclose
3 how the City spent the regulatory fees it collected.
4 Bay 101’s sole claim for damages in the August 22, 2016 suit is for attorney’s fees
5 it has purportedly spent to conduct discovery and develop information that should have
6 been provided by the City in compliance with the 2009 Settlement. 1 In order to defend
7 itself in this consolidated action, and to determine the amount of damages Bay 101 claims
8 it is owed, the City propounded various requests for production (“RFP”) upon Bay 101,
9 including the two RFPs that are the subject of this present motion.
10 As described in detail below, the RFPs sought Bay 101’s (1) accounting records
11 and (2) banking information that would substantiate any damages Bay 101 claims it is
12 owed. Despite indicating in its response to Form Interrogatory Number 9.2 that it is in
13 possession of documents responsive to these RFPs, Bay 101 objected to RFP Number 3
14 (accounting records) on various grounds, including privacy, and indicated that it would not
15 produce any documents responsive to this request. Despite objecting to RFP Number 4
16 (bank records) on the same grounds as RFP Number 3, Bay 101 indicated that it would
17 produce documents responsive to this request.
18 After receiving Plaintiff’s initial responses, counsel for Defendant reached out to
19 counsel for Plaintiff and requested that they withdraw their objections, prepare a
20 supplemental response, and produce all responsive documents within their possession.
21 Declaration of Wesley Klimczak (“Klimczak Decl.”), ¶ 4. Plaintiff subsequently made three
22 separate document productions. Klimczak Decl. ¶ 5. Counsel for Defendant subsequently
23 asked whether all responsive documents regarding Request for Production Nos. 3 and 4
24 had been produced, and if so, requested Plaintiff to provide a supplemental response
25 indicating as such by August 31, in addition to withdrawing its meritless objections.
26 Klimczak Decl. ¶ 6. On Thursday, August 30 at approximately 3:30 p.m., Counsel for
27
1The City recently filed a Motion for Summary Adjudication on Plaintiff’s claim for
28 attorney’s fees, as the law clearly shows that a party is not entitled to attorney’s fees as a
remedy for breach of contract
2
CITY’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT 1-14-CV267311
OF MOTION TO COMPEL
1553534
1 Plaintiff e-mailed Counsel for Defendants, and indicated that they would be producing a
2 fourth round of documents, but that they would not be able to serve a verified
3 supplemental response by Friday, August, 31, 2018 indicating that all responsive
4 documents within their possession had been produced. Given the upcoming close of fact
5 discovery period and the length of time to obtain a court hearing, Defendant was forced to
6 file this motion. Klimczak Decl. ¶ 7.
7 As indicated to opposing counsel during the parties’ meet and confer, Bay 101’s
8 objections to production on privacy grounds are meritless. Because the information
9 sought by the City is directly related to Bay 101’s breach of contract claim (as Bay 101
10 must prove that it suffered damages because of the purported breach), the burden shifted
11 to Bay 101 to justify its privacy objections. Bay 101, though, failed to offer any legitimate
12 reason. As the courts have held, a corporation’s privacy interests in its financial records
13 are significantly less than the privacy interests of people2. Disclosure pursuant to a
14 protective order is the fallback provision unless the corporation can show significant harm
15 that would result3. No such harm can be shown here.
16 Further, Bay 101’s “premature/early expert discovery” and “overly burdensome”
17 objections are also meritless. The documents sought center on Bay 101’s claim for
18 damages, and not a “subject matter more suited for expert testimony.” Moreover,
19 discovery closes in this case on October 29, 2018, with trial currently set for November 26,
20 2018, necessitating the urgency of this current motion. Moreover, retrieval of these
21 documents surely isn’t “overly burdensome” to Bay 101, especially since it filed suit and
22 claimed damages for attorney’s fees, and now objects to producing documents which
23 would purportedly substantiate its damages claim.
24 Bay 101 should be ordered to provide further responses to RFP Numbers 3 and 4
25 by withdrawing its baseless objections and indicating that all responsive documents within
26
27
2 Nativi v. Deutsche Hank National Trust Co. (2014) 223 Cal.App.4th 261, 314 fn.16;
Ameri-Medical Corp. v. Worker's Camp. Appeals Bd. (1996) 42 Cal.App.4th 1260, 1288;
28 Roberts v. Gulf Oil Corp. (1983) 147 Cal.App.3d 770, 791.
3 Greyhound Corp. v. Superior Court (1961), 56 Cal.2d 355, 383
3
CITY’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT 1-14-CV267311
OF MOTION TO COMPEL
1553534
1 its possession have been produced. To the extent that Bay 101 is withholding production
2 of documents based upon any objections, Bay 101 must inform Defendant of this pursuant
3 to Cal. Code of Civil Procedure 2031.220.
4
II. RELEVANT CASE LAW
5
6 The right of privacy established by Article I of the California Constitution protects an
7 individual's “reasonable expectation of privacy against a serious invasion.” Pioneer
8 Electronic, Inc. v. Super. Ct. (2007), 40 Cal.4th 360, 370. There is a legally recognized
9 privacy interest in a person's financial affairs. Fortunato v. Super. Ct. (2003), 114
10 Cal.App.4th 475, 480; see also Valley Bank of Nevada v. Super. Ct. (1975) 15 Cal.3d 652,
11 656-657. The right of privacy, however, is not absolute, and where privacy rights are
12 implicated, the court must “carefully balance” the right of privacy and the right of civil
13 litigants to discover relevant facts. Valley Bank, 15 Cal.3d at p. 657.
14 To obtain private information, the party seeking discovery must show that the
15 discovery sought is “directly relevant” to a particular cause of action or defense, including
16 the amount of damages sought. Britt v. Super. Ct. (1978), 20 Cal.3d 844, 859-862;
17 Kirkland v. Super. Ct. (2002), 95 Cal.App.4th 92, 98. Direct relevance is a higher standard
18 than the “relevancy to the subject matter” standard generally applicable to discovery
19 requests. Britt, 20 Cal.3d at 859. According to the California Supreme Court, direct
20 relevance means that the discovery sought is essential to the fair resolution of a matter in
21 dispute. Id. If direct relevance is shown, the court must then balance the right of privacy,
22 on the one hand, and the right of civil litigants to discover relevant facts, on the other.
23 Valley Bank, 15 Cal.3d at 657.
24 A corporation does not have the same level of protection as individuals do in the
25 privacy interests of their financial information. Nativi v. Deutsche Hank National Trust Co.
26 (2014) 223 Cal.App.4th 261, 314 fn.16; Ameri-Medical Corp. v. Worker's Camp. Appeals
27 Bd. (1996) 42 Cal.App.4th 1260, 1288; Roberts v. Gulf Oil Corp. (1983) 147 Cal.App.3d
28 770, 791. In dealing with this issue, the court of appeal has stated that “the strength of the
4
CITY’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT 1-14-CV267311
OF MOTION TO COMPEL
1553534
1 privacy right being asserted by a nonhuman entity depends on the circumstances[,]
2 [including] … the strength of the nexus between the artificial entity and human beings and
3 the context in which the controversy arises.” Ameri-Medical Corp. v. Worker's Camp.
4 Appeals Bd. (1996) 42 Cal.App.4th 1260, 1288. This issue is particularly relevant where
5 financial records in the possession of a corporation would reveal private information of
6 employees. Id. Where it is possible to do so, the courts should impose partial limitations
7 (such as the use of a protective order) rather than an outright denial of discovery.
8 Greyhound Corp. v. Superior Court (1961), 56 Cal.2d 355, 383; Valley Bank, 15 Cal.3d at
9 658.
10 III. CITY’S MEET AND CONFER EFFORTS
11 After receiving Plaintiff’s initial responses, counsel for Defendant reached out to
12 counsel for Plaintiff and requested that they withdraw their objections, prepare a
13 supplemental response, and produce responsive documents all responsive documents
14 within their possession. Klimczak Decl. ¶ 4. Plaintiff subsequently made three separate
15 document productions. Klimczak Decl. ¶ 5. Counsel for Defendant subsequently asked
16 whether all responsive documents regarding Request for Production No. 3 had been
17 produced, and if so, requested Plaintiff to provide a supplemental response indicating as
18 such, in addition to withdrawing its meritless objections. Klimczak Decl. ¶ 6. On Thursday,
19 August 30 at approximately 3:30 p.m., Counsel for Plaintiff e-mailed Counsel for
20 Defendants, and indicated that they would be producing a fourth round of documents, but
21 that they would not be able to serve a verified supplemental response by Friday August,
22 31, 2018 indicating that all responsive documents within their possession had been
23 produced. Given the upcoming close of fact discovery period and the length of time to
24 obtain a court hearing, Defendant was forced to file this motion. Klimczak Decl. ¶ 7.
25 As discovery closes on October 29, 2018 and trial is currently set for November 26,
26 2018, the City was left with no other choice but to file this instant motion so as to obtain
27 the necessary documents to defend itself in this action.
28 ///
5
CITY’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT 1-14-CV267311
OF MOTION TO COMPEL
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IV. SANCTIONS SHOULD BE AWARDED TO THE CITY
1
2 California Code of Civ. Pro. § 2031.310(h) allows for the award of sanctions against a
3 party who unsuccessfully opposes a motion to compel further response if the actions of that
4 party were not substantially justified. Here, sanctions are warranted. Defendant asked
5 Plaintiff numerous times to withdraw its objections, serve a supplemental response, and
6 produce any remaining responsive documents. Plaintiff ignored Defendant’s requests,
7 forcing it to have to file this motion. Plaintiff’s actions are even more egregious considering
8 that fact discovery closes at the end of October 2018 and trial is currently set for November
9 26, 2018. The City requests sanctions in an amount to be determined after completion of
10 hearing on this matter.
11 Depending on Plaintiff’s actions after this motion is served, the City also reserves its
12 right to file a motion requesting an extension of the fact discovery period and a continuance
13 of the trial date, due to Plaintiff’s deliberate failure to produce documents that would allow
14 the City to adequately defend itself in this action.
15
16 V. CONCLUSION
17 For the reasons identified herein, Bay 101 must withdraw its meritless privacy,
18 prematurity, and unduly burdensome objections raised in response to Requests for
19 Production Nos. 3 and 4, and produce responsive documents immediately to the extent
20 that it is withholding documents.
21 Depending on Plaintiff’s actions after this motion is served, the City also reserves its
22 right to file a motion requesting an extension of the fact discovery period and a
23 ///
24 ///
25 ///
26 ///
27 ///
28 ///
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CITY’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT 1-14-CV267311
OF MOTION TO COMPEL
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1 continuance of the trial date, due to Plaintiff’s deliberate failure to produce documents that
2 would allow the City to adequately defend itself in this action.
3
4
Respectfully submitted,
5 Dated: August 31, 2018
RICHARD DOYLE, City Attorney
6
By: __/s/ Wesley M. Klimczak__________
7 WESLEY M. KLIMCZAK
Senior Deputy City Attorney
8
Attorneys for Defendant:
9 CITY OF SAN JOSE
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CITY’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT 1-14-CV267311
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RICHARD DOYLE, City Attorney (88625) NORA FRIMANN, Assistant City Attorney (93249) ARDELL JOHNSON, Chief Deputy City Attorney (95340) WESLEY M. KLIMCZAK, Senior Deputy City Attorney (294314) Office of the City Attorney 200 East Santa Clara Street, 16 th Floor San José, California 95113-1905 Telephone Number: (408) 535-1900 Facsimile Number: (408) 998-3131 E-Mail Address: cao.main@sanjoseca.gov Attorneys for Defendant CITY OF SAN JOSE SUPERIOR COURT OF CALIFORNIA, COUNTY OF SANTA CLARA UNLIMITED JURISDICTION SUTTER'S PLACE, INC. dba BAY 101, a Case No: 1 CV267311 LEAD) California corporation, (consolid. with 16CV298883 Non-Lead) Plaintiff, CITY OF SAN JOSE’S v. MEMORANDUM OF POINTS & AUTHORITIES IN SUPPORT OF CITY OF SAN JOSE, a California MOTION TO COMPEL PLAINTIFF TO municipal corporation, the DIVISION OF PROVIDE FURTHER RESPONSES TO GAMING CONTROL, and DOES 1-100, DEFENDANT’S REQUEST FOR inclusive, PRODUCTION NOS. 3 AND 4 AND FOR PRODUCTION OF DOCUMENTS Defendants. Date: September 27, 2018 Time: 9:00 a.m. Dept: 6 Hon. Theodore C. Zayner Trial Date: November 26, 2018 I. INTRODUCTION AND STATEMENT OF RELEVANT FACTS This lawsuit includes two consolidated cases arising from the same contract, a settlement agreement the litigants executed in March 2009. The older complaint, filed June 30, 2014, sought declaratory and injunctive relief concerning the interpretation of a term in the settlement agreement for the City to provide information disclosing how it spent a regulatory fee paid by the two cardrooms operating in the City. Plaintiff filed the second CITY’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT 1-14-CV267311 OF MOTION TO COMPEL 1553534 1 lawsuit for breach of contract over two years later, on August 22, 2016, seeking attorney’s 2 fees as damages for the City’s alleged failure to provide sufficient information to disclose 3 how the City spent the regulatory fees it collected. 4 Bay 101’s sole claim for damages in the August 22, 2016 suit is for attorney’s fees 5 it has purportedly spent to conduct discovery and develop information that should have 6 been provided by the City in compliance with the 2009 Settlement. 1 In order to defend 7 itself in this consolidated action, and to determine the amount of damages Bay 101 claims 8 it is owed, the City propounded various requests for production (“RFP”) upon Bay 101, 9 including the two RFPs that are the subject of this present motion. 10 As described in detail below, the RFPs sought Bay 101’s (1) accounting records 11 and (2) banking information that would substantiate any damages Bay 101 claims it is 12 owed. Despite indicating in its response to Form Interrogatory Number 9.2 that it is in 13 possession of documents responsive to these RFPs, Bay 101 objected to RFP Number 3 14 (accounting records) on various grounds, including privacy, and indicated that it would not 15 produce any documents responsive to this request. Despite objecting to RFP Number 4 16 (bank records) on the same grounds as RFP Number 3, Bay 101 indicated that it would 17 produce documents responsive to this request. 18 After receiving Plaintiff’s initial responses, counsel for Defendant reached out to 19 counsel for Plaintiff and requested that they withdraw their objections, prepare a 20 supplemental response, and produce all responsive documents within their possession. 21 Declaration of Wesley Klimczak (“Klimczak Decl.”), ¶ 4. Plaintiff subsequently made three 22 separate document productions. Klimczak Decl. ¶ 5. Counsel for Defendant subsequently 23 asked whether all responsive documents regarding Request for Production Nos. 3 and 4 24 had been produced, and if so, requested Plaintiff to provide a supplemental response 25 indicating as such by August 31, in addition to withdrawing its meritless objections. 26 Klimczak Decl. ¶ 6. On Thursday, August 30 at approximately 3:30 p.m., Counsel for 27 1The City recently filed a Motion for Summary Adjudication on Plaintiff’s claim for 28 attorney’s fees, as the law clearly shows that a party is not entitled to attorney’s fees as a remedy for breach of contract 2 CITY’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT 1-14-CV267311 OF MOTION TO COMPEL 1553534 1 Plaintiff e-mailed Counsel for Defendants, and indicated that they would be producing a 2 fourth round of documents, but that they would not be able to serve a verified 3 supplemental response by Friday, August, 31, 2018 indicating that all responsive 4 documents within their possession had been produced. Given the upcoming close of fact 5 discovery period and the length of time to obtain a court hearing, Defendant was forced to 6 file this motion. Klimczak Decl. ¶ 7. 7 As indicated to opposing counsel during the parties’ meet and confer, Bay 101’s 8 objections to production on privacy grounds are meritless. Because the information 9 sought by the City is directly related to Bay 101’s breach of contract claim (as Bay 101 10 must prove that it suffered damages because of the purported breach), the burden shifted 11 to Bay 101 to justify its privacy objections. Bay 101, though, failed to offer any legitimate 12 reason. As the courts have held, a corporation’s privacy interests in its financial records 13 are significantly less than the privacy interests of people2. Disclosure pursuant to a 14 protective order is the fallback provision unless the corporation can show significant harm 15 that would result3. No such harm can be shown here. 16 Further, Bay 101’s “premature/early expert discovery” and “overly burdensome” 17 objections are also meritless. The documents sought center on Bay 101’s claim for 18 damages, and not a “subject matter more suited for expert testimony.” Moreover, 19 discovery closes in this case on October 29, 2018, with trial currently set for November 26, 20 2018, necessitating the urgency of this current motion. Moreover, retrieval of these 21 documents surely isn’t “overly burdensome” to Bay 101, especially since it filed suit and 22 claimed damages for attorney’s fees, and now objects to producing documents which 23 would purportedly substantiate its damages claim. 24 Bay 101 should be ordered to provide further responses to RFP Numbers 3 and 4 25 by withdrawing its baseless objections and indicating that all responsive documents within 26 27 2 Nativi v. Deutsche Hank National Trust Co. (2014) 223 Cal.App.4th 261, 314 fn.16; Ameri-Medical Corp. v. Worker's Camp. Appeals Bd. (1996) 42 Cal.App.4th 1260, 1288; 28 Roberts v. Gulf Oil Corp. (1983) 147 Cal.App.3d 770, 791. 3 Greyhound Corp. v. Superior Court (1961), 56 Cal.2d 355, 383 3 CITY’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT 1-14-CV267311 OF MOTION TO COMPEL 1553534 1 its possession have been produced. To the extent that Bay 101 is withholding production 2 of documents based upon any objections, Bay 101 must inform Defendant of this pursuant 3 to Cal. Code of Civil Procedure 2031.220. 4 II. RELEVANT CASE LAW 5 6 The right of privacy established by Article I of the California Constitution protects an 7 individual's “reasonable expectation of privacy against a serious invasion.” Pioneer 8 Electronic, Inc. v. Super. Ct. (2007), 40 Cal.4th 360, 370. There is a legally recognized 9 privacy interest in a person's financial affairs. Fortunato v. Super. Ct. (2003), 114 10 Cal.App.4th 475, 480; see also Valley Bank of Nevada v. Super. Ct. (1975) 15 Cal.3d 652, 11 656-657. The right of privacy, however, is not absolute, and where privacy rights are 12 implicated, the court must “carefully balance” the right of privacy and the right of civil 13 litigants to discover relevant facts. Valley Bank, 15 Cal.3d at p. 657. 14 To obtain private information, the party seeking discovery must show that the 15 discovery sought is “directly relevant” to a particular cause of action or defense, including 16 the amount of damages sought. Britt v. Super. Ct. (1978), 20 Cal.3d 844, 859-862; 17 Kirkland v. Super. Ct. (2002), 95 Cal.App.4th 92, 98. Direct relevance is a higher standard 18 than the “relevancy to the subject matter” standard generally applicable to discovery 19 requests. Britt, 20 Cal.3d at 859. According to the California Supreme Court, direct 20 relevance means that the discovery sought is essential to the fair resolution of a matter in 21 dispute. Id. If direct relevance is shown, the court must then balance the right of privacy, 22 on the one hand, and the right of civil litigants to discover relevant facts, on the other. 23 Valley Bank, 15 Cal.3d at 657. 24 A corporation does not have the same level of protection as individuals do in the 25 privacy interests of their financial information. Nativi v. Deutsche Hank National Trust Co. 26 (2014) 223 Cal.App.4th 261, 314 fn.16; Ameri-Medical Corp. v. Worker's Camp. Appeals 27 Bd. (1996) 42 Cal.App.4th 1260, 1288; Roberts v. Gulf Oil Corp. (1983) 147 Cal.App.3d 28 770, 791. In dealing with this issue, the court of appeal has stated that “the strength of the 4 CITY’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT 1-14-CV267311 OF MOTION TO COMPEL 1553534 1 privacy right being asserted by a nonhuman entity depends on the circumstances[,] 2 [including] … the strength of the nexus between the artificial entity and human beings and 3 the context in which the controversy arises.” Ameri-Medical Corp. v. Worker's Camp. 4 Appeals Bd. (1996) 42 Cal.App.4th 1260, 1288. This issue is particularly relevant where 5 financial records in the possession of a corporation would reveal private information of 6 employees. Id. Where it is possible to do so, the courts should impose partial limitations 7 (such as the use of a protective order) rather than an outright denial of discovery. 8 Greyhound Corp. v. Superior Court (1961), 56 Cal.2d 355, 383; Valley Bank, 15 Cal.3d at 9 658. 10 III. CITY’S MEET AND CONFER EFFORTS 11 After receiving Plaintiff’s initial responses, counsel for Defendant reached out to 12 counsel for Plaintiff and requested that they withdraw their objections, prepare a 13 supplemental response, and produce responsive documents all responsive documents 14 within their possession. Klimczak Decl. ¶ 4. Plaintiff subsequently made three separate 15 document productions. Klimczak Decl. ¶ 5. Counsel for Defendant subsequently asked 16 whether all responsive documents regarding Request for Production No. 3 had been 17 produced, and if so, requested Plaintiff to provide a supplemental response indicating as 18 such, in addition to withdrawing its meritless objections. Klimczak Decl. ¶ 6. On Thursday, 19 August 30 at approximately 3:30 p.m., Counsel for Plaintiff e-mailed Counsel for 20 Defendants, and indicated that they would be producing a fourth round of documents, but 21 that they would not be able to serve a verified supplemental response by Friday August, 22 31, 2018 indicating that all responsive documents within their possession had been 23 produced. Given the upcoming close of fact discovery period and the length of time to 24 obtain a court hearing, Defendant was forced to file this motion. Klimczak Decl. ¶ 7. 25 As discovery closes on October 29, 2018 and trial is currently set for November 26, 26 2018, the City was left with no other choice but to file this instant motion so as to obtain 27 the necessary documents to defend itself in this action. 28 /// 5 CITY’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT 1-14-CV267311 OF MOTION TO COMPEL 1553534 IV. SANCTIONS SHOULD BE AWARDED TO THE CITY 1 2 California Code of Civ. Pro. § 2031.310(h) allows for the award of sanctions against a 3 party who unsuccessfully opposes a motion to compel further response if the actions of that 4 party were not substantially justified. Here, sanctions are warranted. Defendant asked 5 Plaintiff numerous times to withdraw its objections, serve a supplemental response, and 6 produce any remaining responsive documents. Plaintiff ignored Defendant’s requests, 7 forcing it to have to file this motion. Plaintiff’s actions are even more egregious considering 8 that fact discovery closes at the end of October 2018 and trial is currently set for November 9 26, 2018. The City requests sanctions in an amount to be determined after completion of 10 hearing on this matter. 11 Depending on Plaintiff’s actions after this motion is served, the City also reserves its 12 right to file a motion requesting an extension of the fact discovery period and a continuance 13 of the trial date, due to Plaintiff’s deliberate failure to produce documents that would allow 14 the City to adequately defend itself in this action. 15 16 V. CONCLUSION 17 For the reasons identified herein, Bay 101 must withdraw its meritless privacy, 18 prematurity, and unduly burdensome objections raised in response to Requests for 19 Production Nos. 3 and 4, and produce responsive documents immediately to the extent 20 that it is withholding documents. 21 Depending on Plaintiff’s actions after this motion is served, the City also reserves its 22 right to file a motion requesting an extension of the fact discovery period and a 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// 6 CITY’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT 1-14-CV267311 OF MOTION TO COMPEL 1553534 1 continuance of the trial date, due to Plaintiff’s deliberate failure to produce documents that 2 would allow the City to adequately defend itself in this action. 3 4 Respectfully submitted, 5 Dated: August 31, 2018 RICHARD DOYLE, City Attorney 6 By: __/s/ Wesley M. Klimczak__________ 7 WESLEY M. KLIMCZAK Senior Deputy City Attorney 8 Attorneys for Defendant: 9 CITY OF SAN JOSE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7 CITY’S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT 1-14-CV267311 OF MOTION TO COMPEL 1553534