Preview
STEVEN B. PISER, SBN 62414
LAW OFFICES OF STEVEN B. PISER
A Professional Corporation
1300 Clay Street, Suite 1050
Oakland, California 94612
Telephone:
Facsimile:
(510)
(510)
835-5582
832-1717
FILED
SAN MATEO COUNTY
JOHN L. FITZGERALD, SBN 126613
LAW OFFICES OF JOHN L. FITZGERALD
101 California Street, Suite 2300
San Francisco, California 941 l 1
Telephone: (415) 689-1209
Attorneys for Plaintiff/Cross-Defendant
DBP INVESTMENTS, -
a California General Partnership
IN THE SUPERIOR COURT OF THE STATE
OF CALIFORNIA
IN AND FOR THE COUNTY OF SAN MATEO
DBP INVESTMENTS, a California General
Partnership, ) CASE N 0. CIV538897
)
) REPLY BRIEF To BUA-QUACH OPPOSITION
Plaintifyf ) To DBP INVESTMENT’S MOTION TO
) COMPEL FURTHER RESPONSES To
v. REQUESTS
) FOR PRODUCTION OF DOCUMENTS,
SET ONE
KING PLAZA CENTER, LLC, a Delaware ) AND FOR SANCTIONS
Limited Liability Company, BUA~QUACH, )
an individual, SOVAN LIEN, an individual, ) DATE FEBRUARY 1 6, 2017
DONG VUONG, ) TIME 9:00 A.M.
an individual, THANH‘ ) DEPT.
LAI, and DOES LAW & MOTION
1 through 10
) TRIAL : NOT YET SET 9%
) '13,],n
Defendants. )
KING PLAZA CENTER, LLC, )
a Delaware )
Limited Liability Company,
)
I
Cross~Complainant, )
V.
)
DBP INVESTMENTS, )‘ (KCIVSaeeIn
a California General
Partnership and ROES ) I REPLY
1 through 10, '
Reply
l
3
Cross-Defendants. ) i
) '\lllllllllllllllllllllllIll
Law Offices of
Joli/I L. Fitzgerald 1
REPLY BRIEF
The facts are undisputed:
An inspection demand was sewed on November 16, 2016.l
The response was due on December 21. There was no response.2
Whenthere were no responSe, a written request was made, asking for reSponses
.
by January 4, in advance of a then scheduled deposition.3
A compromise Was reached, James Barrett, Mr. Quach's lawyer agreed to
produce certain documents needed for the deposition by January 6. They were
not.4
On January 2, Mr. Barrett said: “You will receive your discovery when
\lO‘Cfl-P~OJMHO¥O®\IO\UI-mr—-
completed."5
The deposition of King’s PMQ was scheduled for January 10, 2017. It was
postponed and re-scheduled for January 25, afier counsel for King Center “got hit
with the flu" on the day before the deposition was to occur.‘5
.i—ni—ni—nn—an—ai—‘Hr—a
On January 13, Mr. Barrett wrote, “I will do the best I can to get Discovery
responses to you by the 23"d of January?”
On January 13, DBP, in an effort to avoid judicial intervention sought a
commitment from Mr. Barrett to provide code-compliant responses and
18 production by January 20. The request was ignored.8
+4
19 The reason for a written stipulation was simple. James Barrett sought and
20 obtained a three week extension to January 6 to respond to the complaint. An
21 answer was served on the 6'". But it wasn’t filed. It took the threat of entry of
22 default for the answer to actually be filed. It was filed on January 12. Based on
23 this, it appeared prudent to obtain a written stipulation.
24
25 '
Piser decl. Ex. A.
3
Piser decl. Ex. 5.
26 ’ Piser decl. 2:943
4
Piser decl. Ex. C, D.
27 5
Piser supp. deci. Ex. G.
6
Piser supp. deci. Ex. H.
28 7
Piser decl. Ex. E.
a
Piser decl. Ex. F.
Law Offices of .,
John L Firming/d
REPLY BRIEF
o This motion was filed on January 19, nearly a month after Bua-Quach’s responses
were due.
0 On January 19, 2017, Bua-Quach’s served responses and documents. The
T
responses are not code-compliant. And Bua-Quach has not produced all
\OIXJVOUT-fiOJNi—I
documents he agreed to produce.
0 On January 27~afier the motion had been filedmeounsel for DBP offered: “If
your clients want to avoid the motion, and a thorough examination of their
conduct, I will take the motion off calendar, provided my client is reimbursed the
amount sought in the motion, $446.25, and all the documents your clients said
10 they would produce, which they haven’t, are.” This was ignored. Opposition Was
ll filed?
12 The Court is intervention is still needed. Bua-Quach has not served code-compliant
13 responses and has not produced all documents in Iris possession, custody of control.
14 On January 19, Bua-Quach served responses and produced documents he claims are to
15 requests, requests 5 and 6.
'0
16 M
In response to Requests Nos. 9 and 10, Bua-Quach swore:
17 “Responded party understands the nature of this request and will produce documents that
'
18 satisfy this request. Responding party will produce those documents that are available
19 and responsive to this request."
20 The responses are not code-compliant. ” And no documents have been produced.
21
22
23 9
Piser supp. dccl. Ex. I.
24 ’° The
requests seek the production of writings reflecting any communications with the City of Daly City regarding
the restriping of the upper parking lot, Manila Market’s loading operation at the upper lot, and the installation of a
25 trash compactor adjacent to the upper lot. (Piser decl, Ex. A.)
26 n The Code requires "A statement that
the party to whom a demand for inspection, copying, testing, or sampling
has been directed will comply with the particular demand shall state that the production, inspection, copying,
27 testing. or sampling, and related activity demanded, will be allowed either in whole or in part, and that all
documents or things in the demanded category that are in the possession, custody, or control of that party and to
28 which no objection is being made will be included in the production." (Code Civ. Prom, §203 t .220.)
Law Offices of
3
John 1.. Fitzgerald
REPLY BRIEF
The motion was appropriate and DBP should recover the costs to file it.
The court shall impose a monetary sanction against any party, person or attorney who
. . .
unsuecessfully makes or imposes a motion to compel unless it finds that the one subject to
. . .
the sanction acted with substantial justification or that other circumstances make the imposition
OWQGW-hCnMi-a
of the sanction unjust." (Code Civ. Proc., §2031.300(c).)
No justification, let alone substantial justification, exists for Bua-Quach’s failure to
timely respond to the inspection requests, or his refusal to produce all documents in a timely
manner, or his opposing this motion.
Bua-Quach says that sanctions should not be imposed because “Moving Party has failed
to properly Meet and Confer prior to filing this Motion .” and “[t]his Motion should be denied
as the Moving Party failed to properly Meet and Confer letter sent by Moving Party." (Oppo.
pp.4:10-l 1; 7:25.)
But DBP's counsel did meet and confer.'2
And no meet and confer is required where there is a failure to serve timely responses.
(Leach v.Superior Court (1980) 111 Cal.App.3d 902, 906; COde Civ. Proc., §203 1.300.)
The motiou had to be filed because there was no timely response, and a refusal to commit
to provide one.
MNMMMDMMHi—IHHi—ri—ni—IHHH
‘
This motion will be heard 90 days afier service of the demand. And still, no compliance.
Had the rules been followed, this motion would have been avoided. DBP and the court
could have been spared the expense
\lO‘fifl-DCDIOHOOMVOMAOJMHO
of addressing Bua-Quach’s refiisal to comply with the rules.
DBP sought $446.25, $386.25 for 45 minutes it took to prepare, serve and file the motion
and the $60.00 filing fee. Opposition necessitated this response.
IN
IN.
N!
28 u Piser dec;. Ex. B-F; Piser supplemental deal, Ex.
G. l.)
Law Ojficcs of
4
John L Firr‘geruld
REFLV BRIEF
1 An order requiring amended response to Requests Nos. 9 and [O and an order compelling
2 production of all documents responsive to Requests No. 9 and 10 is required. And DBP should
3 recover the cost to file this motion.
LAW OFFICES OF STEVEN B. PISER
4 A Professional Corporation
5
LAW OFFICES OF JOHN L. FITZGERALD
6
7
DATED: February _§/,2017 By: .
8 J0 N . #7110
~
5
9 A ey for Pla' iff/Cross-Defendnnt
DBP INVESTMENTS, a California
10 General Partnership
1 1
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15
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Law Ofliccs of
5
John L Fllzgcrald REI'M' BRIEF
Preview
STEVEN B. PISER, SBN 62414 LAW OFFICES OF STEVEN B. PISER A Professional Corporation 1300 Clay Street, Suite 1050 Oakland, California 94612 Telephone: Facsimile: (510) (510) 835-5582 832-1717 FILED SAN MATEO COUNTY JOHN L. FITZGERALD, SBN 126613 LAW OFFICES OF JOHN L. FITZGERALD 101 California Street, Suite 2300 San Francisco, California 941 l 1 Telephone: (415) 689-1209 Attorneys for Plaintiff/Cross-Defendant DBP INVESTMENTS, - a California General Partnership IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF SAN MATEO DBP INVESTMENTS, a California General Partnership, ) CASE N 0. CIV538897 ) ) REPLY BRIEF To BUA-QUACH OPPOSITION Plaintifyf ) To DBP INVESTMENT’S MOTION TO ) COMPEL FURTHER RESPONSES To v. REQUESTS ) FOR PRODUCTION OF DOCUMENTS, SET ONE KING PLAZA CENTER, LLC, a Delaware ) AND FOR SANCTIONS Limited Liability Company, BUA~QUACH, ) an individual, SOVAN LIEN, an individual, ) DATE FEBRUARY 1 6, 2017 DONG VUONG, ) TIME 9:00 A.M. an individual, THANH‘ ) DEPT. LAI, and DOES LAW & MOTION 1 through 10 ) TRIAL : NOT YET SET 9% ) '13,],n Defendants. ) KING PLAZA CENTER, LLC, ) a Delaware ) Limited Liability Company, ) I Cross~Complainant, ) V. ) DBP INVESTMENTS, )‘ (KCIVSaeeIn a California General Partnership and ROES ) I REPLY 1 through 10, ' Reply l 3 Cross-Defendants. ) i ) '\lllllllllllllllllllllllIll Law Offices of Joli/I L. Fitzgerald 1 REPLY BRIEF The facts are undisputed: An inspection demand was sewed on November 16, 2016.l The response was due on December 21. There was no response.2 Whenthere were no responSe, a written request was made, asking for reSponses . by January 4, in advance of a then scheduled deposition.3 A compromise Was reached, James Barrett, Mr. Quach's lawyer agreed to produce certain documents needed for the deposition by January 6. They were not.4 On January 2, Mr. Barrett said: “You will receive your discovery when \lO‘Cfl-P~OJMHO¥O®\IO\UI-mr—- completed."5 The deposition of King’s PMQ was scheduled for January 10, 2017. It was postponed and re-scheduled for January 25, afier counsel for King Center “got hit with the flu" on the day before the deposition was to occur.‘5 .i—ni—ni—nn—an—ai—‘Hr—a On January 13, Mr. Barrett wrote, “I will do the best I can to get Discovery responses to you by the 23"d of January?” On January 13, DBP, in an effort to avoid judicial intervention sought a commitment from Mr. Barrett to provide code-compliant responses and 18 production by January 20. The request was ignored.8 +4 19 The reason for a written stipulation was simple. James Barrett sought and 20 obtained a three week extension to January 6 to respond to the complaint. An 21 answer was served on the 6'". But it wasn’t filed. It took the threat of entry of 22 default for the answer to actually be filed. It was filed on January 12. Based on 23 this, it appeared prudent to obtain a written stipulation. 24 25 ' Piser decl. Ex. A. 3 Piser decl. Ex. 5. 26 ’ Piser decl. 2:943 4 Piser decl. Ex. C, D. 27 5 Piser supp. deci. Ex. G. 6 Piser supp. deci. Ex. H. 28 7 Piser decl. Ex. E. a Piser decl. Ex. F. Law Offices of ., John L Firming/d REPLY BRIEF o This motion was filed on January 19, nearly a month after Bua-Quach’s responses were due. 0 On January 19, 2017, Bua-Quach’s served responses and documents. The T responses are not code-compliant. And Bua-Quach has not produced all \OIXJVOUT-fiOJNi—I documents he agreed to produce. 0 On January 27~afier the motion had been filedmeounsel for DBP offered: “If your clients want to avoid the motion, and a thorough examination of their conduct, I will take the motion off calendar, provided my client is reimbursed the amount sought in the motion, $446.25, and all the documents your clients said 10 they would produce, which they haven’t, are.” This was ignored. Opposition Was ll filed? 12 The Court is intervention is still needed. Bua-Quach has not served code-compliant 13 responses and has not produced all documents in Iris possession, custody of control. 14 On January 19, Bua-Quach served responses and produced documents he claims are to 15 requests, requests 5 and 6. '0 16 M In response to Requests Nos. 9 and 10, Bua-Quach swore: 17 “Responded party understands the nature of this request and will produce documents that ' 18 satisfy this request. Responding party will produce those documents that are available 19 and responsive to this request." 20 The responses are not code-compliant. ” And no documents have been produced. 21 22 23 9 Piser supp. dccl. Ex. I. 24 ’° The requests seek the production of writings reflecting any communications with the City of Daly City regarding the restriping of the upper parking lot, Manila Market’s loading operation at the upper lot, and the installation of a 25 trash compactor adjacent to the upper lot. (Piser decl, Ex. A.) 26 n The Code requires "A statement that the party to whom a demand for inspection, copying, testing, or sampling has been directed will comply with the particular demand shall state that the production, inspection, copying, 27 testing. or sampling, and related activity demanded, will be allowed either in whole or in part, and that all documents or things in the demanded category that are in the possession, custody, or control of that party and to 28 which no objection is being made will be included in the production." (Code Civ. Prom, §203 t .220.) Law Offices of 3 John 1.. Fitzgerald REPLY BRIEF The motion was appropriate and DBP should recover the costs to file it. The court shall impose a monetary sanction against any party, person or attorney who . . . unsuecessfully makes or imposes a motion to compel unless it finds that the one subject to . . . the sanction acted with substantial justification or that other circumstances make the imposition OWQGW-hCnMi-a of the sanction unjust." (Code Civ. Proc., §2031.300(c).) No justification, let alone substantial justification, exists for Bua-Quach’s failure to timely respond to the inspection requests, or his refusal to produce all documents in a timely manner, or his opposing this motion. Bua-Quach says that sanctions should not be imposed because “Moving Party has failed to properly Meet and Confer prior to filing this Motion .” and “[t]his Motion should be denied as the Moving Party failed to properly Meet and Confer letter sent by Moving Party." (Oppo. pp.4:10-l 1; 7:25.) But DBP's counsel did meet and confer.'2 And no meet and confer is required where there is a failure to serve timely responses. (Leach v.Superior Court (1980) 111 Cal.App.3d 902, 906; COde Civ. Proc., §203 1.300.) The motiou had to be filed because there was no timely response, and a refusal to commit to provide one. MNMMMDMMHi—IHHi—ri—ni—IHHH ‘ This motion will be heard 90 days afier service of the demand. And still, no compliance. Had the rules been followed, this motion would have been avoided. DBP and the court could have been spared the expense \lO‘fifl-DCDIOHOOMVOMAOJMHO of addressing Bua-Quach’s refiisal to comply with the rules. DBP sought $446.25, $386.25 for 45 minutes it took to prepare, serve and file the motion and the $60.00 filing fee. Opposition necessitated this response. IN IN. N! 28 u Piser dec;. Ex. B-F; Piser supplemental deal, Ex. G. l.) Law Ojficcs of 4 John L Firr‘geruld REFLV BRIEF 1 An order requiring amended response to Requests Nos. 9 and [O and an order compelling 2 production of all documents responsive to Requests No. 9 and 10 is required. And DBP should 3 recover the cost to file this motion. LAW OFFICES OF STEVEN B. PISER 4 A Professional Corporation 5 LAW OFFICES OF JOHN L. FITZGERALD 6 7 DATED: February _§/,2017 By: . 8 J0 N . #7110 ~ 5 9 A ey for Pla' iff/Cross-Defendnnt DBP INVESTMENTS, a California 10 General Partnership 1 1 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Law Ofliccs of 5 John L Fllzgcrald REI'M' BRIEF