Motion for Terminating Sanctions in MATTHEW SQUIRES, et al vs. R.C. WEHMEYER CONSTRUCTION, INC., et al| Trellis.Law

On February 20, 2018 a Motion-Secondary was filed involving a dispute between Bordin, Jeffrey, Martinez, Gregorio, R.C. Wehmeyer Construction, Inc., Wehmeyer, Robert C., Squires, Matthew, Squires, Nicole, and Amercian Contractors Indemnity Company, Does 1 Through 20, Inclusive, R.C. Wehmeyer Construction, Inc., Robert C. Wehmeyer Design, Inc., Wehmeyer, Robert C., for (06) Unlimited Breach of Contract/Warranty in the District Court of San Mateo County.

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KELLY LITIGATION GROUP, INC.
Richard M. Kelly, Esq. SBN 154504
Michael Mengarelli, Esq.
3 Lagoon Drive, Suite 225
SBN 215000
FILED
SAN MATEO COUNTY
_
Redwood City, CA 94065
Telephone: (650) 59 1 -2282 JAN 2 4 2019
Facsimile: (650) 59 1 —2292

CHAUVEL & GLATT, LLP
WWWClerk o? uperiorCourt

April S. Glatt, Esq.
\GMQQUIKUN

Thomas

San Mateo,
Telephone:
J.Walsh, Esq.
SBN

66 Bovet Road, Suite 280
CA 94402
(650) 573-9500
Facsimile: (650) 573—9689
185708
SBN 31 1862

Attorneys for Plaintiffs and Cross—Defendants,
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MPAS
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Mehlora nd
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MATTHEW SQUIRES and NICOLE SQUIRES
650-573-9500

I IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
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IN AND FOR THE COUNTY OF SAN MATEO
(UNLIMITED CIVIL JURISDICTION)
CA
GLATT,

Mateo,
MATTHEW SQUIRES; NICOLE SQUIRES, Case No.: 18CIV00846

& San
Plaintiffs,
NIEMORANDUM OF POINTS AND
| vs. AUTHORITIES IN SUPPORT OF
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R.C. WEHMEYER CONSTRUCTION, INC, dba CROSS—DEFENDANTS’ MOTION FOR
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WEHMEYER CUSTOM HOMES; ROBERT C. TERNIINATING SANCTIONS AGAINST
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WEHMEYER, an individual; AlWERCIAN CROSS—COMPLAINANT ROBERT C.
CONTRACTORS INDEMNITY COMPANY; WEHMEYER (OR ISSUE SANCTIONS
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and DOES 1 through 20, inclusive, IN THE ALTERNATIVE) AND
66
MONETARY SANCTIONS
Defendants.
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R.C. WEHJVIEYER CONSTRUCTION, INC, dba Action Filed: February 20, 20 1 8
WEHNIEYER CUSTOM HONIES; ROBERT C.
WEHMEYER, JEFFREY BORDIN AND
GREGORIO MARTINEZ,
Cross—Complainants,
'

Date:
Time:
Dept:
WC‘N
9:06 a.m.
Law and Motion
V
/
W a

FAX
VS.

MATTHEW SQUIRES; NICOLE SQUIRES, and
ROES 1 through 10,
JGNATUREBY

Cross—Defendants.

’WMORANDUM OF POINTS AND AUTHORITIES 1N SUPPORT OF CROSS-DEFENDANT’S MOTION FOR
TERMINATING SANCTIONS AGAINST CROSS-COIVIPLAINANT ROBERT C. WEHMEYER (OR ISSUE
SANCTIONS IN THE ALTERNATIVE) AND MONETARY SANCTIONS
H TABLE OF CONTENTS
r

N CROSS-COMPLAINANT’S PATTERN OF DISCOVERY MISUSE ..................... 1

DJ II. TERMINATING SANCTIONS ARE WARRANTED AS
CROSS—CONIPLAINANT’S CONDUCT PRECLUDES SQUIRES’
B
THE ABILITY TO ANALYZE AND DEFEND ..................................... 3

U]
A. Terminating Sanctions are reasonable given the pattern of discovery misconduct ....... 3

Q-Oﬂ
B. Issue Sanctions are necessary if the Court isnot inclined to award
terminating sanctions ..................................................... 6

w III. CROSS—COMPLAINANT’S CONDUCT WARRANTS TERMINATION ‘

OF HIS CROSS-CLAIM AND/OR ISSUE SANCTIONS .............................. 6
¢
MONETARY SANCTIONS MUST BE AWARDED FOR PLAINTIFFS’
650-573-9500

REASONABLE ATTORNEYS’ FEES AND COSTS FOR BRINGING
THIS MOTION ............................................................... 9
l
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94402 SQUIRES SHOULD BE AWARD ADDITIONAL MONETARY
CA
SANCTIONS FOR THE CONTINUED PATTERN OF BAD-FAITH
GLATT,
BEHAVIOR BY CROSS-COMPLAINANT ....................................... 10
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VI. CONCLUSION ............................................................... 1 1
& San

l
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TABLE OF CONTENTS & TABLE OF AUTHORITIES
MEMORANDUM OF POINTS AND AUTHORITIES 1N SUPPORT OF CROSS-DEFENDANT’S MOTION FOR
TERMINATING SANCTIONS AGAINST CROSS-COMPLAINANT ROBERT C. WEHIVIEYER (OR ISSUE
SANCTIONS 1N THE ALTERNATIVE) AND MONETARY SANCTIONS
TABLE 0F AUTHORITIES
Federal Cases

Faulkner v.ADTSec. Services, Inc. (9th Cir. 2013) 706 F.3d 1017 ............................. 7

State Cases

Bonds
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v.Roy (1999) 20 Ca1.4th 140 ..................................................... 4

City ofLong Beach v. Bozek (1982) 31 Ca1.3d 527 ........................................ 11

Collisson & Kaplan v. Hartum'an (1994) 21 Cal.App.4th 1611 ................................ 5

Coulter v. Bank ofAmerica National Trust and Savings Assn. (1994) 28 Cal.App.4th 923 .......... 7

Doe v. United States Swimming, Inc. (201 1) 200 Cal.App.4th 1424 .................... '.

....... 9

Doppes v.
650-573-9500 Bentley Motors, Inc. (2009) 174 Cal.App.4th 967 . ... .. ..-
........................ 10

| Ellis v.Roshei Corp. (1983) 143 Cal.App.3d 642 .......................................... 11
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Emerson Electric C0. v.Sup. Ct. (1997) 16 Cal.4th 1101 .................................... 4
CA
GLATT,
Flanagan v.Flanagan (2002) 27 Cal.4th 766 ............................................. 7
Mateo,

Forest E. Olson, Inc. v.Superior C0urt(1976) 63 Cal.App.3d 188 .............................. 7
& San

| Greyhound Corp. v. Sup. Ct. (1961) 56 Cal.2d 355 ......................................... 4
280
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Suite
Juarez v. Boy Scouts ofAmerica, Inc. (2000) 81 Cal.App.4th 377 ....................... I.
.. ;4, 5

Road,
Kahn v. Kahn (1977) 68 Cal.App.3d 372 ................................................. 5
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Karlsson v. FordMotor C0. (2006) 140 Ca1.App.4th 1202 ................................... 4
66
Lang v. Hochman (2000) 77 Cal.App.4th
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NNNNN‘NNNNHr—HHHHHHHH
1225 ............................................ 5

Laguna Auto Body v. Farmers Insurance Exchange (1991) 231 Cal.App.3d 481 ....... ........... 9
‘

Mungo v. UTA FrenchAirlines (1985) 166'Cal.App.3d 327 . .. .. ... .. ... .. .. .. ....'.......... 11

Parker v. Walters Kluwer United States, Inc. (2007) 149 Cal.App.4th 285 .................... 9, 10

People v.Suite (1980) ‘101 Cal.App.3d 680 ............................................... 7

Sauer v. Superior C0urt(1987) 195 Cal. App. 3d‘213 ......... ... .. .. .. ... .. .. .. ...7
....... 5

Tenderloin Housing Clinic, Inc. v.Sparks (1992) 8 Cal.App.4th 299, 304 ....................... 11

TABLE OF CONTENTS & TABLE OF AUTHORITIES
MEMORANDUM OF FONTS AND AUTHORITES IN SUPPORT OF CROSS-DEFENDANT’S MOTION FOR
TERMWATING SANCTIONS AGAINST CROSS-CONIPLAJNANT ROBERT C. WEHIWEYER (OR ISSUE
SANCTIONS IN THE ALTERNATIVE) AND MONETARY SANCTIONS
Wilkins v. Nat ’l Broadcasting C0. (1999) 71 Cal.App.4th 1066 ............................... 7

State Statutes

hDJN Cal. Code Civ. Proc. §128.5 ........................................................ 1, 10

Cal. Code Civ. Proc. §2017.010 ........................................................ 4

Cal. Code Civ. Proc. §2030.290 ............................. .
........................... 6

Cal. Code Civ. Proc. §2023.010 .................................................... 1, 3, 6

Cal.
\GWQQUI Code Civ. Proc. §2030.290 ........................................................ 6

Cal. Code Civ. Proc. §2030.030 ...................................................... 4, 6

Cal. Code Civ. Proc. §2030.300 ................................................... 1, 3, 9

10 Cal.
650-573-9500 Code Civ. Proc. §2031.300 ........................................................ 9

| ll Cal. Penal Code §632 ............................................................ l, 4, 7
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12 Secondary Sources
CA
GLATT,
13 3 California Forms 0f Jury Instruction 1809 ............................................... 7
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& l4
San

I 15
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17

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19

26
iii

27 TABLE OF CONTENTS & TABLE OF AUTHORITIES

28
MEMORANDUM OF POINTS AND AUTHORITIES 1N SUPPORT OF CROSS-DEFENDANT’S MOTION FOR
TERMNATING SANCTIONS AGAINST CROSS-COWLAMANT ROBERT C. WEHMEYER (OR ISSUE
SANCTIONS IN THE ALTERNATIVE) AND MONETARY SANCTIONS
MEMORANDUM OF POINTS AND AUTHORITIES
In support ofPlaintiff Matthew Squires and Nicole Squires’ (“Squires”) Motion for Terminating

Sanctions (or Issue Sanctions in the Alternative) and Monetary Sanctions (“Motion”) Against Cross-

Complainant Robert C. Wehmeyer, an individual (“Cross-Complainant”), pursuant to California Code

of Civil Procedure
©WQGNUIhWNH
§§128.5, 2023.010, and 2030.300(e), Squires, by and through undersigned counsel,

submits this Memorandum of Points and Authorities and states as follows:

I. CROSS-COMPLAINANT’S PATTERN OF DISCOVERY MISUSE
On March 14, 2018, Cross—Complaint (along with others) ﬁled a Cross—Complaint whereby

Cross—Complainant asserted a single cause of action for Surreptitious Recording of Conﬁdential

Conversation under Cal. Penal Code §632 (referred to as the “Cross—Complaint”).
650-573-9500

| On April 10, 2018 — over 9 months ago — Squires served Cross—Complainant with her Special
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Interrogatories, Set One. On May 4, 20 1 8, Cross—Complainant, through his counsel Mr. Brian Newcomb
CA
GLATT,
(“Mn Newcomb”), requested an extension t0 respond to Squires’ discovery. Declaration of Michael
Mateo,

Mengarelli in Support ofPlaintiffMatthew Squires and Nicole Squires’ First, Second and Third Motions
& San

| to Compel, ﬁled May 3], 2018 (“Mengarelli 05/31/18 Decl.”), 1H,; see also Brian W. Newcomb’s
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Declaration in Opposition to Squires Third Motion to Compel Discovery, executed on June 27, 2018,

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1114 (Plaintiffs denied further extensions to respond “after [M12 Newcomb] asked for a 3rd extension”);

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Defendants’ Memo of Law In Opposition to Plaintiffs’ Third Motion to Compel Discovery, dated June
66
27, 2018, 2:8-9
NNNNNNNNNHHl—HHHHHHH (“Plaintiffs granted Defendants two (2) extensions totaling about three (3) weeks to
“\IO‘UI-BOJNH_O\Ow\IO\UI£WNl-tc

respond to some 0f the early discovery requests”).

Cross—Complainant was required to respond t0 Squires’ discovery requests on or before May 15,
2018 and failed to do so. On May 16, 2018, Squires’ counsel sent a formal meet and confer letter: (i)

reminding Cross—Complainant of his failure to respond to discovery, and (ii) demanding he respond.

Glatt 05/31/18 Decl., at 1H7 and Exh. FF. On May 18, 2018, Cross-Complainant’s counsel, Mr.

Newcomb, represented that responses would be provided to Cross—Defendant. Declaration of April S.

Glatt in Support of Plaintiff Matthew Squires and Nicole Squires’ First, Second and Third Motions to

MEMORANDUM OF FONTS AND AUTHORITIES 1N SUPPORT OF CROSS-DEFENDANT’S MOTION FOR
TERMINATING SANCTIONS AGAINST CROSS-COMPLAINANT ROBERT C. WEHMEYER (OR ISSUE
SANCTIONS 1N THE ALTERNATIVE) AND MONETARY SANCTIONS
Compel, ﬁled May 31, 2018 (“Glatt 05/31/18 Decl.”), 1118 and Exh. GG. On May 21, 2018, after

multiple extensions were'provided, Wehmeyer responded to Mrs. Squires’ special interrogatories with

improper objections and evasive statements.

On May 31, 2018, Squires ﬁled their Notice of Motion and Third Motion to Compel Discovery

along with
\OWQGKUIBOJNH
a Memorandum 0f Points and Authorities and supporting Declaration. On June 15, 2018,

Plaintiffs ﬁled their Separate Statement outlining their issues with Cross—Complainant’s improper

objections and responses. On August 27, 2018, this Court heard oral argument during a discovery

conference in chambers which resulted in a Joint Stipulation and Order on Plaintiffs’: (1) First Motion

to Compel Discovery; (2) Second Motion t0 Compel Discovery; and (3) Third Motion to Compel

H Discovery, executed by this Court on July 24, 2018 (“Order to Compel”).
650-573-9500

[ H In relevant part, the 07/24/18 Order states: “Robert C. Wehmeyer is required and agrees to
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H respond to allthe April 10, 20 1 8 Special Interrogatories, Set One on or before August 20, 20 1 8”. Order
CA
GLATT,
H to Compel, 1[3[b]. The court set a follow—up discovery conference for August 27, 2018 and reserved
Mateo,

judgment 0n sanctions. Order toCompel, 6— 7. At the August 27, 201 8, the court heard oral argument
& San
1H]

I H.H

that Cross—Complainant failed to comply with the Order by not responding at all and a sanctions hearing
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H was set for September 27, 2018. Glatt 08/30/18 Decl., 1115(c).

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H On August 30, 201 8, supplemental briefs and declarations were ﬁled explaining to the court that

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H Cross—Complainant had not complied with the court’s Order and Cross—Complainant’s deposition had
66
H to be cancelled
WQQUIAMNHOWMQGUIBWNHO
for a second time. Glatt 08/30/18 Decl., 1H7; Supplemental Declaratioﬁ of Michael

N Mengarelli in Support of Plaintiff Matthew Squires and Nicole Squires’ Supplemental Memorandum 0f

N Péints and Authorities in Support of Their First, Second and Third Motions to Compel,ﬁledAugust 30,

N 2018, (“Mengarelli 08/30/18 Decl.”), 113.

N As a result of the September 27, 2018 hearing and after lengthy oral arguments from all parties,

N the Court executed an Order on Plaintiff Matthew and Nicole Squires’ Request for Sanctions in their

N First, Second and Third Motions to Compel Discovery (“Sanctions Order”), sanctioning Cross-

N Complainant a total amount of $50,746.

N
2

N
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF CROSS-DEFENDANT’S MOTION FOR
TERM1NATD\IG SANCTIONS AGAINST CROSS-COMPLAINANT ROBERT C. WEHIVIEYER (OR ISSUE
SANCTIONS 1N THE ALTERNATIVE) AND MONETARY SANCTIONS
Despite a court order requiring responses and a sanctions award, Cross—Complainant continues

to defy the Court and refuse to participate in discovery. Declaration of April S. Glatt In Support of

Cross-Defendant’ s Motion for Terminating Sanctions Against Cross—Complainant Robert C. Wehmeyer

(Or Issue Sanctions in the Alternative) and Monetary Sanctions (“Glatt 01/23/19 Decl.”), WI — 4. This
is a Motion for which there is no statutory meet and confer requirement. Due to Cross—Complainant’s
\DWQQUIAWNH

behavior and failure to previously participate in a meet and confer process, Squires are compelled to ﬁle

this Motion.

Throughout this litigation, Cross—Complainant has abused the discovery process by repeatedly

failing to respond to legitimate discovery requests, by forcing Squires to move to compel responses, and

c ultimately
650-573-9500
by failing t0 comply with this Court’s order to provide responses. This abusive conduct must

| r—I be put to an end. Terminating sanctions, or in the alternative, issue sanctions, are warranted and must
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N be imposed.
CA
GLATT,
w Squires also seek the imposition of monetary sanctions in the amount of $6,689.00 for the
Mateo,

h reasonable attorneys’ fees and costs of having to bring this Motion. Glatt 01/23/19 Dec1.,
& San
1114.

I II. TERMINATING SANCTIONS ARE WARRANTED AS CROSS-COMPLAINANT’S
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ext):

CONDUCT PRECLUDES SOUIRES’ THE ABILITY TO ANALYZE AND DEFEND.
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a. Terminating Sanctions are reasonable given the pattern ofdiscovery misconduct.
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\l

Cal. Code. Civ. Proc. §2030.300(e), addressing remedies with respect to interrogatories,
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provides:
If a party then fails to obey an order compelling further response to
interrogatories, the court may make those orders that are just, including the
imposition 0f an issue sanction, an evidence sanction, or a terminating
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sanction under Chapter 7 (commencing with Section 2023.010). In lieu of
or in addition to that sanction, the court may impose a monetary sanction
under Chapter 7 (commencing with Section 2023.010).

w Cal. Code Civ. Proc. §2023.030 authorizes the imposition of sanctions for misuse of the

h discovery process. Such misuses include failing to respond to an authorized method of discovery and

"disobeying a court order to provide discovery." Cal. Code Civ. Proc. §2023.010, subds. (d) and (g).

Where, as here, a party has abused discovery, the Legislature condones an "issue sanction ordering that
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MEMORANDUM OF POINTS AND AUTHORITES IN SUPPORT OF CROSS—DEFENDANT’S MOTION FOR
TERM1NATING SANCTIONS AGAINST CROSS—COMPLAINANT ROBERT C. WEHMEYER (OR ISSUE
SANCTIONS IN THE ALTERNATIVE) AND MONETARY SANCTIONS
designated facts shall be taken as established in the action in accordance with the claim 0f the party

adversely affected by the misuse of the discovery process," and "an issue sanction by an order

prohibiting any party engaging in the misuse of the discovery process from supporting or opposing

designated claims or defenses." Cal. Code Civ. Proc. §2023.030, subd. (b).

The statute further permits "an evidence sanction by an order prohibiting any party engaging in
\DWQQUI&WNH

the misuse of the discovery process from introducing designated matters in evidence." Cal. Code Civ.

Proc. §2023.030, subd. (c). Lastly, the Code allows for a terminating sanction by, inter alia "(1) An

order striking out the pleadings or parts of the pleadings of any party engaging in the misuse of the

discovery process. ..
(4) An order rendering a judgment by default against that party." Cal. Code Civ.

Proc.
650-573-9500 §2023.030(d), subsect. (1) and (4).

| The requirements ofthe discovery statutes are not taken lightly by our courts. See, e.g., Karlsson
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v. Ford Motor C0. (2006) 140 Ca1.App.4th 1202 (upholding imposition of evidentiary and issue

CA
GLATT,
sanctions for Ford's evasiveness in discovery by, inter alia, "providing TCT with too many documents,
Mateo,

& and without proper itemization, in order to overwhelm TCT with written material." Id. at 1210-1212);
San

| Bonds v. Roy (1999) 20 Ca1.4th 140, 145, 148-149 (holding that the exclusion sanction applies where
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the party unreasonably failed to submit an expert witness declaration which fully complied with all the

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content requirements under the Code.)

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Discovery was intended to eliminate gamesmanship, not promote it.Greyhound Corp. v.Sup.
ooqcxmAWNchooucNm-kmNh-Ic

66
Ct. (1961) 56 Cal.2d 355,
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376. The basic purpose of discovery is to enable acquisition of the evidence

necessary to evaluate and resolve the dispute, or otherwise prepare for trial. Id;Emerson Electric Co. v.

Sup. Ct. (1997) 16 Ca1.4th 1101,1 107. Defendants are unquestionably entitled to all facts,documents,

and witnesses supporting Cross—Complainant’s claims. Cal. Code Civ. Proc. §2017.010; Juarez v. Boy

Scouts ofAmerica, Inc. (2000) 81 Cal.App.4th 377, 389.

Because the discovery in this case was directed to elements of the fourth (violation of Penal

Code §632) cause of action in the Cross—Complaint and Cross—Complainant failed to comply, issue

and/or evidentiary sanctions should be imposed to eviscerate his claim. Therefore, the appropriate action

4
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF CROSS-DEFENDANT’S MOTION FOR
TERMINATING SANCTIONS AGAINST CROSS—COWLAINANT ROBERT C. WEHMEYER (OR ISSUE
SANCTIONS 1N THE ALTERNATIVE) AND MONETARY SANCTIONS
is terminating sanctions by issuing an order dismissing these cross-claims with prejudice. Juarez, 81

Ca1.App.4th at 390 (“’a persistent refusal to comply With an order for the production of evidence is

9”
tantamount to an admission that the disobedient party really has no meritorious claim [citing Kahn v.

Kahn (1977) 68 Cal.App.3d 372, 382]). Terminating sanctions are appropriate When the offending party

spends
\DWQQUlﬁbJNH
"months avoiding or evading discovery." Lang v. Hochman (2000) 77 Ca1.App.4th 1225, 1246.

In Collisson & Kaplan v. Hartunian (1994) 21 Ca1.App.4th 161 1, 1617, the court held that the

defendant's answer may be stricken, and its default entered for evasive responses to requests for

admissions, even Without a prior order compelling further response.

The point that defendants fail to acknowledge is that,while this may have
been their ﬁrst effort to respond, itwas not plaintiffs ﬁrst effort at receiving
650-573-9500

straightforward responses. Defendants chose to ignore the many attempts,
both formal and informal, made by plaintiff to secure fair responses from
|
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them. Accordingly, we ﬁnd no abuse of discretion by the trial court. Id. at
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1618.
CA
GLATT,
In the instant case, Cross—Complainant has notjust failed to respond to special interrogatories or
Mateo,

produce necessary documents, but also willfully refused t0 comply with this Court’s Sanctions Order.
& San

| Just like in Collisson, Cross—Complainant has chosen to ignore numerous attempts, both formal and
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Suite informal, to obtain discovery responses and the court's Sanctions Order. Terminating sanctions are

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warranted because evidence shows that Cross-Complainant will not comply with less severe sanctions,

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and his failure to comply has been willful. The Squires have amply demonstrated that Cross—
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Complainant will not comply With
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his discovery obligations and will not obey this Court’s order.
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Where, as here, Squires' ability to have a fair trial on the merits has been irreparably

compromiéed, the only sanction that could adequately remedy Cross—Complainant's wrongdoing is a

terminating sanction. Sauer v. Superior Court (1987) 195 Cal. App. 3d 213, 229 ("Where a party has

refused to supply information relevant to a particular claim, an order precluding that claim is an

appropriate sanction").

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF CROSS-DEFENDANT’S MOTION FOR
TERMINATDIG SANCTIONS AGAMST CROSS-COMPLAINANT ROBERT C. WEHMEYER (OR ISSUE
SANCTIONS IN THE ALTERNATIVE) AND MONETARY SANCTIONS
b. Issue Sanctions are necessary if the Court is not inclined to award terminating
sanctions.

Should the Court not be inclined to impose tenninating sanctions against Cross—Complainant,

the Squires request that the Court impose issue sanctions. As stated above, the Court is empowered to

impose issue sanctions Where a party fails to obey a Court order compelling further response to

interrogatories.
WMNONUIBUNH
Cal. Code Civ. Proc. §§2030.290 and 2023.010; Juarez, supra, 81 Ca1.App.4th at 387-

390 (certain issues held established because of plaintiff's failure to answer interrogatories regarding

evidence supporting claims pertaining to these issues.) These sanctions are necessary as Cross-

Complainant has repeatedly refused to provide information or documents relevant to Cross-

Complainant’s allegations and impede the Squires’ ability to prepare a defense. Ithas been a constant

c
)—t
battle
650-573-9500

to get discovery materials that Squires should have received over 9 months ago. The Squires

| p—x r-t

should not be required to endure continued unnecessary litigation expenses to obtain information and
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N
n—A
documents that have been ordered discoverable by this Court. Order t0 Compel, $03).
CA
GLATT,
H OJ Speciﬁcally, Squires request the following issue and evidence sanctions under Code of Civil
Mateo,

& A
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Procedure sections 2023.030(b)—(c) and the Court's inherent power to control proceedings before it:
San

| UI
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b—t
i. Given Wehmeyer has willfully refused to provide information related to his single cause
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of action, Squires ask this court order issue sanctions establishing that Cross—Complainant had no
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reasonable expectation of privacy for conversations at the Squires’ residence; and

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Hw ii. Given Wehmeyer has willfully refused to provide information related to his single cause
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\b
0f action, Squires ask this court order issue sanctions establishing that Cross-Complainant consented to

Nc the recording 0f any conversations on the Squires’ property.

NH
III. CROSS-CONIPLAINANT’S CONDUCT WARRANTS TERMINATION OF HIS CROSS-
NN CLAIM AND/OR ISSUE SANCTIONS.
N OJ In order to prove his claim, Cross—Complainant must prove that: Squires intentionally
(1)

NA eavesdropped 0n or recorded Cross-Complainant’s conversation using an electronic device; Cross—
(2)

N U] Complainant had a reasonable expectation that the conversation was not being overheard or recorded;

N Ox and Cross—Complainant did not have consent of all the parties to the conversation to eavesdrop on
(3)

N \l
6
IVIEMORANDUM OF POWTS AND AUTHORITIES IN SUPPORT OF CROSS-DEFENDANT’S MOTION FOR
N oo
.
TERMINATING SANCTIONS AGAINST CROSS-COMPLAINANT ROBERT C. WEHMEYER (OR ISSUE
SANCTIONS 1N THE ALTERNATIVE) AND MONETARY SANCTIONS
or record it.See 3 California Forms of Jury Instruction 1809. The crux of Squires’ defense is that (a)

there was no reasonable expectation of privacy because the conversation was not conﬁdential; and (b)

Cross—Complainant was involved in the installation of the Ring recording system and knew it was

recording the front porch; therefore, he consented to the recordings.

communication carried on in such circumstances as may reasonably indicate that any party to such

communication desires itto be conﬁned to such parties, but excludes a communication made in a public

gathering or in any legislative, judicial, executive or administrative proceeding open to the public, 0r in

any other circumstance in which the parties t0 the communication may reasonably expect that the

communication may be overheard or recorded.” People
650-573-9500 v.Suite (1980) 101 Cal.App.3d 680, 688 (citing

Code Nat’l Broadcasting
| Cal. Penal §632[c]) (emphasis added); see also Wilkins v. C0. (1999) 71
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Cal.App.4th 1066, 1079 (“[i]t isan essential element of a Penal Code section 632, subdivision (a) claim
CA
GLATT,
that [cross-complainant] prove that the conversation that was taped was ‘conﬁdential’”)
Mateo,

“A conversation is conﬁdential under section 632 if a party to that conversation has an
& San

| objectively reasonable expectation that the conversation is not being overheard or recorded” Flanagan
280
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v. Flanagan (2002) 27 Cal.4th 766, 776 — 777. “A communication must be protected if either party

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expects the communication to be conﬁned t0 the parties.” Coulter v.Bank ofAmerica National Trust

Bovet
and Savings Assn.
NNNNNNNNNHHHHHr—AHHHh—t

(1994) 28 Cal.App.4th 923, 929; Faulkner v. ADT Sec. Services, Inc. (9th Cir. 2013)
66
706 F.3d 1017, 1020 (allegation that plaintiff called home security company to dispute charge on bill,

combined with threadbare
OOQGNUIAUJNchaoqcxm-AMNHO

allegation lof expectation of conﬁdentiality of conversation that merely

tracked conﬁdentiality language of Penal Code §632, was insufﬁcient to support claim of reasonable

expectation of privacy); Suite,101 Cal.App.3d at 688 (citing Forest E. Olson, Inc. v.Superior Court

[1976] 63 Cal.App.3d 188, 191 (“A participant t0 a telephonic communication is exempted from the

prohibition against recording the communication only if the other participant knows that it is being

recorded”). To prepare their defense, Squires’ need vital information and documentation that only

7
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF CROSS-DEFENDANT’S MOTION FOR
TERMINATING SANCTIONS AGAINST CROSS-COMPLAINANT ROBERT C. WEHMEYER (OR ISSUE
SANCTIONS 1N THE ALTERNATIVE) AND MONETARY SANCTIONS
Cross-Complainant knows or possesses. Squires cannot properly defend against this claim without

understanding the facts that support Cross-Complainant’s sole cross-claim.

Cross—Complainant alleges that for the period between July 1,2016 and December 3 1, 2017, the

Squires “intentionally and without the consent of any one [sic]” recorded “conﬁdential conversations

@01th

by electronic amplifying or recording devices, eavesdropping upon or recording of these confidential

communication[s].” Cross—Complaint, W25, 29. Cross—Complainant is seeking statutory ﬁenalties in the

amount of $2,500 for each instance of eavesdropping and illegal recording. Cross—Complaint, ﬂ 30.

On April 10, 201 8 Cross-Defendant Nicole Squires served Cross—Complainant with her ﬁrst set

of Special Interrogatories. In those Special Interrogatories, Mrs. Squires asked Cross-Complainant to:1

10 [Special Interrogatory
650-573-9500 No. 19] “IDENTIFY and DESCRIBE IN DETAIL all facts that support

[ ll YOUR allegation that “Cross-Defendants Squires recorded all conversations made by
LLP
94402

12 Cross—Complainants named herein When they were in or about the Squires’ subject
CA
GLATT,
13 residence,” as alleged in paragraph 28 of the CROSS—COMPLAINT”
Mateo,

& 14 [Special Interrogatory No. 26] “IDENTIFY all DOCUMENTS that support your Fourth Cause
San

[ 15 of Action (Surreptitious Recording of Conﬁdential Conve

Case Info

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Chou, Danny Y. Track Judge’s New Case

Case No.

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Document Filed Date

January 24, 2019

Case Filing Date

February 20, 2018

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Parties

AMERCIAN CONTRACTORS INDEMNITY COMPANY Defendant
BORDIN, JEFFREY Cross Complainant
DOES 1 THROUGH 20, INCLUSIVE Defendant
LINN, PETER J. Attorneys for Plaintiffs
MARTINEZ, GREGORIO Cross Complainant
MENGARELLI, MICHAEL Attorney
MENGARELLI, MICHAEL Attorney for the Plaintiff
MONARCA ROOFERS, INC Cross Defendant
NEWCOMB, BRIAN W. Attorney
NEWCOMB, BRIAN W. Attorney for the Defendant
R.C. WEHMEYER CONSTRUCTION, INC. Cross Complainant
R.C. WEHMEYER CONSTRUCTION, INC. Defendant
ROBERT C. WEHMEYER DESIGN, INC. Defendant
ROES 1 THROUGH 10 Cross Defendant
SQUIRES, MATTHEW Cross Defendant
SQUIRES, MATTHEW Plaintiff
SQUIRES, NICOLE Cross Defendant
SQUIRES, NICOLE Plaintiff
WEHMEYER, ROBERT C. Cross Complainant
WEHMEYER, ROBERT C. Defendant
ZOES 1 THROUGH 10, INCLUSIVE Cross Defendant
April Glatt Attorneys for Plaintiffs
Richard Kelly Attorney
John Hedger Attorney
Albert Finch Attorney
Ian Wilson Attorneys for Defendants
Thomas Walsh Attorneys for Plaintiffs
Cecil Hedger Attorneys for Defendants
Michael Mengoli Attorneys for Plaintiffs
April Gilbert Attorney
Thomas Jones Attorneys for Plaintiffs
Richard Wehmeyer Attorney
Michael Megan Attorney
Robert Kelly Attorneys for Plaintiffs
James Walsh Attorneys for Plaintiffs
Tracy Walsh Attorney
Lance Wilson Attorney
Albert Moorman Attorney
Eric Hove Attorney
Reginaldo Villarreal Attorneys for Defendants

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Motion-Secondary: MATTHEW SQUIRES, et al vs. R.C. WEHMEYER CONSTRUCTION, INC., et al

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