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I JOSEPH W. COTCHETT (SBN
jcotchett@cpmlegal.corn
36324) PILED
SAN MATEQ COUNTY
2 CHRISTOPHER LAVORATO(SBN 221034)
clavorato@cpmlegal:corn 2 2013
DEC 6
ARON K. LIANG (SBN 228936)
aliang@cpml egal.corn the Superior Court
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COTCHETT, PITRE dt McCARTHY, LLP
.San Francisco Airport Office Center
840 Malcolm Road, Suite 200
Burlingame, CA 94010
Telephone: (650) 697-6000
Facsimile: (650) 697-0577
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Attorneys for Defendants
Beverly M Ashcraft aka Beverly Cunha
and 8'.P. Cunha Grocery, Inc.
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IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF SAN MATEO
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THE RIACE FINANCIALGROUP, INC. Case No. CIV516505
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Plaintift; DEFENDANT BEVERLY ASHCRAFT'S
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AMENDED NOTICE OF MOTION AND
15 MOTION FOR SANCTIONS; AND TO
COMPEL PROPER WITNESS
16 NEW LEAF COMMUNITYMARKETS, PURSUANT TO CODE OF CIVIL
INC., BEVERLY M. ASHCRAFT, AKA PROCEDURE $ 2025.230
BEVERLY CUNHA, W.P. CUNHA
GROCERY, INC. DOES 1through 50 Date: January 29, 2014
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Time: 9:00 a.m.
19 Defendants. Court: Law and Motion Department
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BY FAX
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L.hO'FFICES DEFENDANT BEVERLY ASHCRAFT'S AMENDED NOTICE OF MOTION AND
MOTION FOR SANCTIONS; AND TO COMPEL PROPER
C()'I'(:I 0:.1 I', P1'I'RI'. WITNESS PURSUANT TO
h ilcC:ia'n tv, LLP CODE OF CIVILPROCEDURE $ 2025.230;Case No. CIVSI6505
AMENDED NOTICE OF MOTION
2 TO ALLPARTIES AND THEIR ATTORNEYS OF RECORD:
PLEASE TAKE NOTICE that on January 29, 2014, at 9:00 a.m., or as soon thereafter as
counsel may be heard, before the Law and Motion Department of the above-entitled Court,
located at 400 County Center, Redwood City, CA 94063, Defendant Beverly AshcraA
6 ("Ashcraft") will move the Court for an Order compelling Plaintiff The Riace Financial Group,
Inc, ("Riace" or "Plaintiff') to produce an appropriately qualified deposition witness pursuant to
8 Code of Civil Procedure $ 2025.230 to testify on the following two topics:
(1) All damages allegedly suffered as a result of the allegations in the First Amended
IO Complaint dated January 25, 2013 ("FAC")
(2) All business, customers, and/or house accounts
Plaintiff
allegedly lost as a resultof the
l2 allegations in the FAC.
l3 This motion is made on the grounds that h failed to produce and prepare a
witness in compliance with Code of Civil Procedure ) 2025.230, which has necessitated the
I5 filing of this motion. On December 12. 2013, Plaintiffproduced Concettina Carrubba as the
I6 purported person most knowledgeable, pursuant to Code of Civil Procedure g 2025.230, on the
above two topics. Concettina Carrubba, however, was not an adequate witness pursuant to Code
l8 of Civil Procedure $ 2025.230.
19 First, Plaintiff did not produce at the deposition the most knowledgeable officer, director,
20 managing agent, employee or agent of Plaintiff regarding the topics set forth in AshcraA's
2I deposition notice.
22 Second, Plaintiffdid not give the witness access to information and documents
23 reasonably available within the corporation. The witness admitted that she was not the most
24 knowledgeable person regarding the subject matters of the notice and did not have access to
25 information and documents reasonably available to the corporation.
26 Ashcraft requests sanctions in the amount of $ 2,975, half of the amount to be paid by the
27 Plaintiff and half by its counsel. Sanctions are warranted due to PlaintifFs misuse of the
28 discovery process.
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LA'iVOFFICES
Con:ui:;> i;Pnai:. DEFENDANT BEVERLY ASHCRAFT'S AMENDED NOTICE OF MOTION AND
8 McC.uriiiY,LLP MOTION FOR SANCTIONS; AND TO COMPEL PROPER WITNESS PURSUANT TO
CODE OF CIVILPROCEDURE II 2025.230;
Case No. CIVSI6505
Said Motion will be based upon this Amended Notice and Motion, the Memorandum of
2 Points and Authorities in support thereof, the Declaration of Christopher Lavorato and upon such
other evidence, oral or documentary, as may be introduced at the hearing of this Motion, and
4 upon the Court's entire file in this matter.
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Dated: December 26, 2013 COTCHETT, PITRE 8r,McCARTHY, LLP
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CHRISTOPHER LAVORATO
IO
Attorneys for Defendants
aka Beverly Cunha, and
Beverly
8'.P. Cunha
I Ashcraft,
Grocery, Inc.
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I.AW OFFICES
DEFENDANT BEVERLY ASHCRAFT
c() n30:.ri', I'n ai: AMENDED NOTICE OF MOTION AND
R %1 .C
.,',
.
IIP
MOTION FOR SANCTIONS; AND TO COMPEL PROPER WITNESS PURSUANT TO
CODE OF CIVILPROCEDURE II 2025.230;
Case No. CIV5I6505
I PROOF OF SERVICE
2 of San
I am employed in the County Mateo; I am over the age of 18 years and not a party
to the within cause. My business address is the Law Offices of Cotchett, Pitre & McCarthy,
LLP, San Francisco Airport Office Center, 840 Malcolm Road, Suite 200, Burlingame,
California, 94010. On this day, I served the following document(s) in the manner described
4 below:
1. DEFENDANT BEVERLY ASHCRAFT'S AMENDED NOTICE OF
MOTION AND MOTION FOR SANCTIONS'ND TO COMPEL
PROPER WITNESS PURSUANT TO CODE OF CIVILPROCEDURE 5
2025.230
X VIAMAIL:I am readily familiar with this firm's practice for causing documents to be
served by first class mail. Following that practice, I caused the sealed envelope containing the
aforementioned document(s) to be delivered via first classmail to the addressee(s) specified
I0 below.
[SEE ATTACHED SERVICE LISTj
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I declare under penalty of perjury, under the laws of the State of California, that the
I3 foregoing is true and correct. Executed at Burlingame, California, on December 26, 2013.
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IS
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JENNIFER WANG
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IS
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LAWOFFICES
C()'I'(70.'A; PA'Iu:.
PROOF OF SERVICE
% XI<:C.wn n', LLP
SERVICE LIST
Paul E. Rice COUNSEL FOR PLAINTIFF
A Professional Corporation THE RIACE FINANCIALGROUP, INC.
3 350 Cambridge Avenue, Suite 225
Palo Alto, CA 94306
4 289-9088
Tel: (650)
Fax: (650) 289-9093
price@civlit.corn
Frank R. Ubhaus COUNSEL FOR PLAINTIFF
BERLINER COHEN THE RIACE FINANCIALGROUP, INC.
10 Almaden Boulevard, 11th Floor
San 3ose, CA 95113
Tel: (408) 286-5800
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frank.ubhaus@berl incr.corn
Edward W. Newman COUNSEL FOR DEFENDANT
10 NEWMAN MARCUS ET AL LLP NEW LEAF COMMUNITYMARKETS,
331 Capitola Avenue, Suite K INC.
Capitola, CA 95010
Tel: (831) 476-6622
Fax: (831) 476-1422
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edward@nmc lip.corn
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LQV OI FICES
C(n'(:i n. A; Prnu:.PROOF OF SERVICE
0 XI<:C won',LLP
Preview
I JOSEPH W. COTCHETT (SBN jcotchett@cpmlegal.corn 36324) PILED SAN MATEQ COUNTY 2 CHRISTOPHER LAVORATO(SBN 221034) clavorato@cpmlegal:corn 2 2013 DEC 6 ARON K. LIANG (SBN 228936) aliang@cpml egal.corn the Superior Court 4 G COTCHETT, PITRE dt McCARTHY, LLP .San Francisco Airport Office Center 840 Malcolm Road, Suite 200 Burlingame, CA 94010 Telephone: (650) 697-6000 Facsimile: (650) 697-0577 7 Attorneys for Defendants Beverly M Ashcraft aka Beverly Cunha and 8'.P. Cunha Grocery, Inc. 10 IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF SAN MATEO 12 THE RIACE FINANCIALGROUP, INC. Case No. CIV516505 13 Plaintift; DEFENDANT BEVERLY ASHCRAFT'S 14 AMENDED NOTICE OF MOTION AND 15 MOTION FOR SANCTIONS; AND TO COMPEL PROPER WITNESS 16 NEW LEAF COMMUNITYMARKETS, PURSUANT TO CODE OF CIVIL INC., BEVERLY M. ASHCRAFT, AKA PROCEDURE $ 2025.230 BEVERLY CUNHA, W.P. CUNHA GROCERY, INC. DOES 1through 50 Date: January 29, 2014 18 Time: 9:00 a.m. 19 Defendants. Court: Law and Motion Department 20 BY FAX 21 22 23 24 25 26 27 28 8 L.hO'FFICES DEFENDANT BEVERLY ASHCRAFT'S AMENDED NOTICE OF MOTION AND MOTION FOR SANCTIONS; AND TO COMPEL PROPER C()'I'(:I 0:.1 I', P1'I'RI'. WITNESS PURSUANT TO h ilcC:ia'n tv, LLP CODE OF CIVILPROCEDURE $ 2025.230;Case No. CIVSI6505 AMENDED NOTICE OF MOTION 2 TO ALLPARTIES AND THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that on January 29, 2014, at 9:00 a.m., or as soon thereafter as counsel may be heard, before the Law and Motion Department of the above-entitled Court, located at 400 County Center, Redwood City, CA 94063, Defendant Beverly AshcraA 6 ("Ashcraft") will move the Court for an Order compelling Plaintiff The Riace Financial Group, Inc, ("Riace" or "Plaintiff') to produce an appropriately qualified deposition witness pursuant to 8 Code of Civil Procedure $ 2025.230 to testify on the following two topics: (1) All damages allegedly suffered as a result of the allegations in the First Amended IO Complaint dated January 25, 2013 ("FAC") (2) All business, customers, and/or house accounts Plaintiff allegedly lost as a resultof the l2 allegations in the FAC. l3 This motion is made on the grounds that h failed to produce and prepare a witness in compliance with Code of Civil Procedure ) 2025.230, which has necessitated the I5 filing of this motion. On December 12. 2013, Plaintiffproduced Concettina Carrubba as the I6 purported person most knowledgeable, pursuant to Code of Civil Procedure g 2025.230, on the above two topics. Concettina Carrubba, however, was not an adequate witness pursuant to Code l8 of Civil Procedure $ 2025.230. 19 First, Plaintiff did not produce at the deposition the most knowledgeable officer, director, 20 managing agent, employee or agent of Plaintiff regarding the topics set forth in AshcraA's 2I deposition notice. 22 Second, Plaintiffdid not give the witness access to information and documents 23 reasonably available within the corporation. The witness admitted that she was not the most 24 knowledgeable person regarding the subject matters of the notice and did not have access to 25 information and documents reasonably available to the corporation. 26 Ashcraft requests sanctions in the amount of $ 2,975, half of the amount to be paid by the 27 Plaintiff and half by its counsel. Sanctions are warranted due to PlaintifFs misuse of the 28 discovery process. S LA'iVOFFICES Con:ui:;> i;Pnai:. DEFENDANT BEVERLY ASHCRAFT'S AMENDED NOTICE OF MOTION AND 8 McC.uriiiY,LLP MOTION FOR SANCTIONS; AND TO COMPEL PROPER WITNESS PURSUANT TO CODE OF CIVILPROCEDURE II 2025.230; Case No. CIVSI6505 Said Motion will be based upon this Amended Notice and Motion, the Memorandum of 2 Points and Authorities in support thereof, the Declaration of Christopher Lavorato and upon such other evidence, oral or documentary, as may be introduced at the hearing of this Motion, and 4 upon the Court's entire file in this matter. 5 Dated: December 26, 2013 COTCHETT, PITRE 8r,McCARTHY, LLP 6 CHRISTOPHER LAVORATO IO Attorneys for Defendants aka Beverly Cunha, and Beverly 8'.P. Cunha I Ashcraft, Grocery, Inc. l2 13 l4 l5 16 17 18 19 20 2l 22 23 24 25 26 27 28 S I.AW OFFICES DEFENDANT BEVERLY ASHCRAFT c() n30:.ri', I'n ai: AMENDED NOTICE OF MOTION AND R %1 .C .,', . IIP MOTION FOR SANCTIONS; AND TO COMPEL PROPER WITNESS PURSUANT TO CODE OF CIVILPROCEDURE II 2025.230; Case No. CIV5I6505 I PROOF OF SERVICE 2 of San I am employed in the County Mateo; I am over the age of 18 years and not a party to the within cause. My business address is the Law Offices of Cotchett, Pitre & McCarthy, LLP, San Francisco Airport Office Center, 840 Malcolm Road, Suite 200, Burlingame, California, 94010. On this day, I served the following document(s) in the manner described 4 below: 1. DEFENDANT BEVERLY ASHCRAFT'S AMENDED NOTICE OF MOTION AND MOTION FOR SANCTIONS'ND TO COMPEL PROPER WITNESS PURSUANT TO CODE OF CIVILPROCEDURE 5 2025.230 X VIAMAIL:I am readily familiar with this firm's practice for causing documents to be served by first class mail. Following that practice, I caused the sealed envelope containing the aforementioned document(s) to be delivered via first classmail to the addressee(s) specified I0 below. [SEE ATTACHED SERVICE LISTj l2 I declare under penalty of perjury, under the laws of the State of California, that the I3 foregoing is true and correct. Executed at Burlingame, California, on December 26, 2013. l4 IS 16 JENNIFER WANG l7 IS l9 20 2l 22 23 24 25 26 27 28 LAWOFFICES C()'I'(70.'A; PA'Iu:. PROOF OF SERVICE % XI<:C.wn n', LLP SERVICE LIST Paul E. Rice COUNSEL FOR PLAINTIFF A Professional Corporation THE RIACE FINANCIALGROUP, INC. 3 350 Cambridge Avenue, Suite 225 Palo Alto, CA 94306 4 289-9088 Tel: (650) Fax: (650) 289-9093 price@civlit.corn Frank R. Ubhaus COUNSEL FOR PLAINTIFF BERLINER COHEN THE RIACE FINANCIALGROUP, INC. 10 Almaden Boulevard, 11th Floor San 3ose, CA 95113 Tel: (408) 286-5800 9 frank.ubhaus@berl incr.corn Edward W. Newman COUNSEL FOR DEFENDANT 10 NEWMAN MARCUS ET AL LLP NEW LEAF COMMUNITYMARKETS, 331 Capitola Avenue, Suite K INC. Capitola, CA 95010 Tel: (831) 476-6622 Fax: (831) 476-1422 3 1 edward@nmc lip.corn 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 S LQV OI FICES C(n'(:i n. A; Prnu:.PROOF OF SERVICE 0 XI<:C won',LLP