Preview
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ORIINAL
pv
Andrew M. A; agma (Bar No. 180703)
LAW CENTER
FILED
951 Mariners Island Blvd Ste 300 SAN MATEO COUNTY
San Mateo, California 94404
650 372-2600 Telephone)
AUG 2 6 2019
650 372-9318 Facsimile) Clerkat ror Gourt
Attorney for Plaintiff - my
48-cV—oa110
Sweet Production, Inc. MPAQ
Memorandum of Points and Authorities in Oppc
1995369
I | | l hl | | |
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF SAN MATEO
10
11 SWEET PRODUCTION, INC., Case No. 18CIV03110
gfe
eo 12 Plaintiff, PLAINTIFF’S MEMORANDUM
Mou OPPOSING DEFENDANT SOLOMON
fm B> 13 SHA’S MOTION FOR LEAVE OF
Oss v. COURT TO FILE AND HAVE
14 SHA’S MOTION FOR TERMINATIN
UE gO SOLOMON SHA, SANCTIONS OR ALTERNATIVELY
a
ges 1 TO REOPEN AND COMPEL
Sas Defendant. DISCOVERY; DECLARATION OF
16 ANDREW M. AGTAGMA
<8
17 [Civ. Proc. Code § 2024.050(b)]
18 Date: August 28, 2019
Time: 9:00 a.m.
19 Dept: 1
Judge: Hon. Leland Davis, IIT
20
21 Trial Date: January 6, 2020
Complaint Filed: June 18, 2018
22
and Related Cross-Action.
23
24
26
27
28
-1-
Plaintiff's Opposition to Motion for Leave to File Motion for Terminating Sanctions
Cr
A
MEMORANDUM
L INTRODUCTION
This case involves a dispute between a wholesale bakery, Plaintiff Sweet Production,
Inc., and one of its former employees, Defendant Solomon Sha. (Defendant is a former
corporate secretary and managerial employee of SPI. He is also a minority shareholder.)
For the reasons set forth in greater detail below, the Court should deny Defendant’s
motion to for leave of court to have his motion for terminating sanctions heard, and to deny
his alternative motion to reopen and compel discovery.
10 I. PROCEDURAL HISTORY
11 Plaintiff Sweet Production, Inc. (“SPI”) filed its complaint against Defendant on June
en
ag
ad 12 18, 2018.
gs Defendant answered and filed a cross-complaint about one month later on July 19.
13
o8
14 (Declaration of David J. Miclean in Support of Sha’s Motion for Leave of Court to File and
£480
Boa
222 15 Have Heard Motion for Terminating Sanctions (hereafter referred to as “Miclean Decl.”) Ex.
esa 16 7.) In addition to SPI, the cross-complaint named Doreen Chin and Ming Chin as cross-
Cc: David Miclean ; Douglas Collins
Subject: RE: Sweet Production v. Sha (Service)
Hi Carmen,
I'm not authorized to accept service of the cross-complaint at this time. The cross-complaint has been tendered to
my clients’ insurer, and I'm awaiting their response If I later become authorized to accept service, I'll let you
know.
Regards,
Andrew M. Agtagma, Esq.
LAW CENTER
1291 E. Hillsdale Blvd., Suite 211B
Foster City, CA 94404
(650) 372-2600 ext. 104
(650) 372-9318 (facsimile)
meee eee Original Message anneeee
Subject: Sweet Production v. Sha (Service)
From: Carmen Aviles
Date: Tue, July 24, 2018 11:04 am
To: Andrew Agtagma
Cc: "David Miclean" , Douglas Collins
file:///C|/...20required/SPI.05/Exhibits/Ex.%206%20180726%20RE%20Sweet%20Production%20v.%20Sha%20(Service).htm[8/16/2019 8:14:48 AM]
NA
EXHIBIT 7
a
a
Sent: Friday, June 14, 2019 11:07 AM
To: ‘dmiclean@micleangleason.com'
Ce: 'dcollins@micleangleason.com'
Subject: Sweet Production, Inc. v. Sha
JournalPM: J
Mr. Miclean,
I'm writing to follow up regarding our stipulation at the mandatory settlement conference on June 5, 2019. To date | have not heard
from you or your office, other than to receive a Request for Entry of Default with respect to Mr. Sha's amended complaint.
| have been waiting to discuss which documents you would like to see to properly assess the value of Mr. Sha's shares in the
company, and to discuss the additional details contemplated by the stipulation. If you were waiting for me to reach out first, I'm
writing now to rectify the situation.
Please let me know if you would like to schedule a call to discuss these matters, or if you prefer to continue this discussion in
writing. (| understand if you would prefer the fatter.)
Since time is of the essence, | will wait until the end of next week to hear from you. If | don't hear from you before then, | will
assume that you have chosen to litigate the case on the merits, and will proceed accordingly.
Regards,
Andrew M. Agtagma, Esq.
LAW CENTER
951 Mariners Island Blvd., Suite 300
San Mateo, CA 94404
(650) 372-2600 ext. 704
(650) 372-9318 (facsimile)
NOTICE OF CONFIDENTIALITY: This e-mail is covered by the Electronic Communications Privacy Act of 1986, 18 U.S.C. §§ 2510-2522.
The information contained in this message and any attachments thereto is confidential, and may also be protected by the attorney work
product doctrine and attorney-client privilege. It is intended solely for the use of the addressee(s). If you are not the intended recipient
of this e-mail, you are prohibited from reading, disclosing, distributing, copying, or otherwise using its contents. If you have received
this e-mail in error, please notify the sender by email, telephone or facsimile transmission, and permanently delete the original and any
copy of this message.
o
file:///C\/.../OneDrive/@%20Action%20required/SPL.05/Exhibits/Ex.%207%20190614%20Sweet%20Production%20Inc.%20v.%20Sha.htm{8/16/2019 8:14:59 AM]
Hx
u~
EXHIBIT 8
From: David Miclean [dmiclean@micleangleason.com]
Sent: Wednesday, July 03, 2019 6:23 PM
To: Andrew M. Agtagma, .
Ce: Douglas Collins; Danielle Mihalkanin
Subject: RE: SPI Valuation Analysis Information Request
Importance: High
JournalPM: J
Mr. Agtagma, Mr. Sha agreed to discuss settlement of his claims and the buyout of his ownership interest in SPI (per your
request) provided your client produce financial information and documents he has been seeking for two years. He did not
agree to dismiss his claims or engage in an expensive and time consuming appraisal process as a condition to receiving those
documents. Mr. Sha already has an expert who can provide him information on value — but he needs the information and
documents | previously forwarded to you. If you want a protective order please provide one for me to review as | advised at
the MSC. Sincerely,
David J. Miclean
Principal
@
411 Borel Avenue, Suite 310
San Mateo, CA 94402
MAIN 650 684 1181
DIRECT 650 684 1184
CELL 650 861 0899
WEB www.micleangleason.com
The information contained in this electronic message and any attachments to this message are intended for the exclusive use
of the addressee(s) and may contain confidential or legally privileged information intended for the sole use of the designated
recipient(s). The unlawful interception, use or disclosure of such information is strictly prohibited under 18 USCA 2511 and
any applicable laws. Any review, reliance or distribution by others or forwarding without express permission is strictly
prohibited. If you are not the intended recipient, or have received this communication in error please notify Miclean Gleason
LLP immediately at (650) 684-1181 or dmiclean@micleangleason.com and destroy all copies of this message and any
attachments without reading them or saving them to disk. Thank you.
From: Andrew M. Agtagma, Esq.
Sent: Wednesday, June 26, 2019 3:57 PM
To: David Miclean
Cc: Douglas Collins ; Danielle Mihalkanin
Subject: RE: SP] Valuation Analysis Information Request
Mr. Miclean,
I'm writing regarding Sweet Production's response to your document requests. SPI is amenable to providing the documents
requested in your attachment, "SPI Valuation Analysis Information Request," to the extent they're within its possession, custody or
control. It is also agreeable to the 6-year time frame requested. Its willingness to provide the requested documents, however, is
contingent on Sha agreeing to the following:
1) In exchange for SPI dismissing its complaint against Sha with prejudice, Sha must also stipulate to set aside the entries of
default taken against SPI, Doreen Chin, and Terry Chin, and dismiss the amended cross-complaint against those parties with
prejudice. (I don't speak for Sweet Express.)
2) Any agreement regarding the purchase of Sha's shares in SPI must include non-disclosiire, non-disparagement, and non-
solicitation clauses, with suitable monetary and injunctive remedies for breach, including attorneys' fees for the prevailing party and
liquidated damages.
3) Sha must agree to a protective order allowing any documents disclosed to be seen only by his attorneys and their agents for
the purpose of assessing the value of SPI and his shares, with suitable monetary and injunctive remedies for breach, including
attorneys’ fees for the prevailing party and liquidated damages.
4) SPI asks that you identify at least three experts to assess the value of the company for purposes of selling Sha's shares--other
than any experts you are already consulting with, or have retained to testify in this case. SPI is willing to select one of these
experts to assess the value of the company. SPI will agree to accept the selected expert's assessment of the company's value as
file://C\/...uited/SPI.05/Exhibits/Ex.%208%20190703%201823%20RE%20SP1%20Valuation%20Analysis%20Information%20Request.htm[8/16/2019 8:15:18 AM]
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EXHIBIT 9
From: Andrew M. Agtagma, Esq. [ama@lawcenter-esq.com]
Sent: Wednesday, July 03, 2019 4:22 PM
To: ‘David Miclean'
Ce: ‘Danielle Mihalkanin'; ‘Douglas Collins’
Subject: RE: Sha adv. Sweet Production - Letter from David Miclean to Andrew Agtagma
JournalPM: J
Mr. Miclean,
I'm writing in response to your July 1, 2019 letter requesting that discovery be reopened. My client respectfully declines.
Based on the arguments in Sha's previous motions to compel and reply briefs, Sweet Production does not believe that he would
prevail on a motion to compel. Not only do the briefs demonstrate a lack of proficiency with law and motion procedure, they also
ignore significant substantive problems with your client's position
Code of Civil Procedure § 2024.050(b) sets forth the factors for discovery to be reopened. The biggest problem with bringing a
motion to compel now, after discovery has already closed, is explaining why it wasn't done before the discovery hearing cutoff.
Sha served the written discovery requests and deposition notices in July 2018, yet filed the first motion to compel more than six
months later in February 2019. He then waited another six weeks to re-file it, after it was denied without prejudice in early April
2019. The motions are substantively identical. There's no reason it could not have been filed within the deadlines established by
the first trial date.
Perhaps Sha felt that the parties would stipulate to continue the trial date and the related discovery deadlines, or that he could
forgo discovery and "wing it" at trial. (It's noteworthy, for example, that he did not opt to bring a motion to compel with respect to
the depositions.) Or perhaps he expected that the case would eventually settle and wanted to minimize his litigation expenses.
Whatever the case, it was a decision that ended up backfiring.
My client specifically stipulated to continue the trial date to negotiate settlement--not to provide him with a chance to correct his
tactical errors. Moreover, this issue would be moot if Sha had brought a timely, technically-proficient motion to compel. He had
ample opportunity to do so. The lack of diligence in asserting his right to discovery is not an adequate justification to reopen the
discovery cutoff.
Bringing a motion to compel now, without substantial justification, is sanctionable conduct under § 2024.050(c). Given that this will
be Sha's third attempt to bring a motion to compel, my office may request monetary sanctions if he fails yet again.
Regards,
Andrew M. Agtagma, Esq
NOTICE OF CONFIDENTIALITY: This e-mail is covered by the Electronic Communications Privacy Act of 1986, 18 U.S.C. §§ 2510-2522.
The information contained in this message and any attachments thereto is confidential, and may also be protected by the attorney work
product doctrine and attorney-client privilege. It is intended solely for the use of the addressee(s). If you are not the intended recipient
of this e-mail, you are prohibited from reading, disclosing, distributing, copying, or otherwise using its contents. If you have received
‘his e-mail in error, please notify the sender by email, telephone or facsimile transmission, and permanently delete the original and any
copy of this message.
From: Douglas Collins [mailto:dcollins@micleangleason.com]
Sent: Monday, July 01, 2019 4:51 PM
To: Andrew M. Agtagma, Esq.
Ce: David Miclean; Danielle Mihalkanin
Subject: Sha adv. Sweet Production- Letter from David Miclean to Andrew Agtagma
Dear Mr. Agtagma
Please find attached the following:
file:///C\/...E%20Sha%20adv.%20S weet%20Production%20-%20Letter%20 from%20David%20Miclean%20to%20Andrew%20A gtagma.htm[8/16/2019 8:15:33 AM]
~
EXHIBIT 10
5
XS
LAW CENTER
A PROFESSIONAL CORPORATION,
951 Mariners Island Blvd Ste 300 * San Mateo, California 94404
Phone: (650) 372-2600 * Facsimile: (650) 372-9318
July 12, 2019
BY E-MAIL ONLY dmiclean@micleangleason.com
David Miclean, Esq.
411 Borel Ave., Suite 310
San Mateo, CA 94402
Re: Sweet Production, Inc. v. Solomon Sha
San Mateo County Superior Court, case no. 18CIV03110
Dear Mr. Miclean:
I'm writing in response to your e-mail messages from July 3, 2019 and yesterday.
Regarding the parties’ stipulation to provide financial records, it seems we are not on
the same page as to what was agreed upon.
From the outset, Solomon Sha has framed the case as if-he’s the plaintiff. He’s
proceeded as if SPI’s complaint was merely a pretext to avoid being held accountable
for its own alleged misdeeds. This narrative ignores, however, that Sha was already
being investigated for the problems alleged in the complaint before he retained you as
his attorney. (See April 13, 2017 letter re Sha suspension.)
This mindset continues to distort Sha’s understanding of the procedural posture of this
case, and how that impacts possible settlement.
At the time of the mandatory settlement conference, Sha’s cross-complaint was not at
issue because defaults had been entered against the cross-defendants. The only claims
to be settled at the MSC were SPI’s.
SPI broached the idea of a buy-out at the settlement conference because it realized that
having a judgment against Sha would not accomplish its overarching objective to
terminate all ties with him—especially now that he is openly working against its
interests in a competing bakery. Realizing that Sha would need time to receive and
evaluate its financial records to determine a fair buy-out price, SPI also agreed to
continue the trial date.
David Miclean, Esq.
July 12, 2019
Page 2 of 3
It did not agree to provide financial records or continue the trial date for any other
purpose. It certain!lyI did not do so to assist with proving up Sha’s claims, for which he
has scant evidence.
Relatedly, I take issue with your comment that Sha “did not agree to dismiss his claims
or engage in an expense and time consuming appraisal process.” As to the first part of
your comment, SPI did not explicitly agree to dismiss its claims either. If the point is
to hew to the literal terms of the stipulation, there’s no meeting of the minds, and no
path to further these settlement negotiations.
As to the second part of your comment, the stipulation actually provides in Paragraph
3 that “[t]he parties will . . . discuss the use of an agreed expert to evaluate finances.” I
proposed the scheme for selecting such an expert with this term of the stipulation in
mind.
To the extent Sha objects, SPI is open to alternative suggestions. To the extent Sha
never intended to agree to such an expert, it’s just one more reason to doubt that this
dispute can be resolved amicably. (Other indicia include his refusal to take the July 2,
2019 motion to compel off calendar, the nearly two-week delay before Sha presented
his request for valuation analysis information, and his persistence in filing motions
regarding discovery.)
As you correctly point out, the time for the parties to “agree to SPI’s production of
documents required to meaningfully participate in settlement” was within 30 days of
the MSC. Since the MSC took place on June 5, the time to come to an agreement has
already passed.
SPI is willing to continue negotiating the terms of this agreement as set forth in my
June 26, 2019 email. If Sha is willing to entertain these terms, please advise and I will
prepare a suitable protective order for your review. If Sha is unwilling to do so, there’s
nothing more to discuss at this time.
" It is readily apparent from reading the cross-complaint that it is based largely, if not solely, on Sha’s
assertions, without independent corroboration. It’s noteworthy, for example, that many of the
allegations in the cross-complaint were made on information and belief. It would also be surprising if
Sha had, among other things, evidence establishing his allegations as to his initial ownership shares;
evidence that SPI was improperly diverting funds through East West Bank; evidence regarding Cross-
Defendant Sweet Express’s relationship to SPI; and evidence establishing his alter-ego allegations.
David Miclean, Esq.
July 12, 2019
Page 3 of 3
Sincerely,
LAW CENTER
OLM.
Andrew M. Agtagma
Attorney at Law
Enclosure
ry
VY
PROOF OF SERVICE
STATE OF CALIFORNIA, COUNTY OF SAN FRANCISCO
Iam employed in the County of San Francisco, State of California. I am over the age
of 18 and not a party to the within action; my business address is: 75 Columbia Sq., San
Francisco, CA 94103. On August 16, 2019, I served the foregoing document(s) described as:
PLAINTIFF’S MEMORANDUM OPPOSING DEFENDANT SOLOMON SHA’S
MOTION FOR LEAVE OF COURT TO FILE AND HAVE HEARD SHA’S MOTION
FOR TERMINATING SANCTIONS OR ALTERNATIVELY TO REOPEN AND
COMPEL DISCOVERY; DECLARATION OF ANDREW M. AGTAGMA
on interested parties in this action by placing a true copy thereof enclosed in sealed envelopes
as follows:
David Miclean, Esq.
MICLEAN GLEASON LLP
10 411 Borel Ave., Suite 310
San Mateo, CA 94402
il
gg BY MAIL (C.CP. § 10134) | am readily familiar with the firm’s practice of collection and
ax 12 processing correspondence for mailing with the U.S. Postal Service. Under that practice it
7H would be d osited with the U.S. Postal Service on that same day with postage thereon fully
Bos
eS 13 Fo
aid at ‘oster City, California in the ordinary course of business.
ZO
go 14
and PI laced for collection and mailing on that date following ordinary
e envelope was sealed
business practices.
38a
Zens 15
BY EXPRESS MAIL (C.CP. § 101) | am readily familiar with the firm’s practice of
naag collection and processing correspondence for mailing with Federal Express. Under that
ractice it would be deposited with Federal E: xpress on that same day thereon fully prepaid at
gig
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Preview
g [28 Cf ORIINAL pv Andrew M. A; agma (Bar No. 180703) LAW CENTER FILED 951 Mariners Island Blvd Ste 300 SAN MATEO COUNTY San Mateo, California 94404 650 372-2600 Telephone) AUG 2 6 2019 650 372-9318 Facsimile) Clerkat ror Gourt Attorney for Plaintiff - my 48-cV—oa110 Sweet Production, Inc. MPAQ Memorandum of Points and Authorities in Oppc 1995369 I | | l hl | | | SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SAN MATEO 10 11 SWEET PRODUCTION, INC., Case No. 18CIV03110 gfe eo 12 Plaintiff, PLAINTIFF’S MEMORANDUM Mou OPPOSING DEFENDANT SOLOMON fm B> 13 SHA’S MOTION FOR LEAVE OF Oss v. COURT TO FILE AND HAVE 14 SHA’S MOTION FOR TERMINATIN UE gO SOLOMON SHA, SANCTIONS OR ALTERNATIVELY a ges 1 TO REOPEN AND COMPEL Sas Defendant. DISCOVERY; DECLARATION OF 16 ANDREW M. AGTAGMA <8 17 [Civ. Proc. Code § 2024.050(b)] 18 Date: August 28, 2019 Time: 9:00 a.m. 19 Dept: 1 Judge: Hon. Leland Davis, IIT 20 21 Trial Date: January 6, 2020 Complaint Filed: June 18, 2018 22 and Related Cross-Action. 23 24 26 27 28 -1- Plaintiff's Opposition to Motion for Leave to File Motion for Terminating Sanctions Cr A MEMORANDUM L INTRODUCTION This case involves a dispute between a wholesale bakery, Plaintiff Sweet Production, Inc., and one of its former employees, Defendant Solomon Sha. (Defendant is a former corporate secretary and managerial employee of SPI. He is also a minority shareholder.) For the reasons set forth in greater detail below, the Court should deny Defendant’s motion to for leave of court to have his motion for terminating sanctions heard, and to deny his alternative motion to reopen and compel discovery. 10 I. PROCEDURAL HISTORY 11 Plaintiff Sweet Production, Inc. (“SPI”) filed its complaint against Defendant on June en ag ad 12 18, 2018. gs Defendant answered and filed a cross-complaint about one month later on July 19. 13 o8 14 (Declaration of David J. Miclean in Support of Sha’s Motion for Leave of Court to File and £480 Boa 222 15 Have Heard Motion for Terminating Sanctions (hereafter referred to as “Miclean Decl.”) Ex. esa 16 7.) In addition to SPI, the cross-complaint named Doreen Chin and Ming Chin as cross- Cc: David Miclean ; Douglas Collins Subject: RE: Sweet Production v. Sha (Service) Hi Carmen, I'm not authorized to accept service of the cross-complaint at this time. The cross-complaint has been tendered to my clients’ insurer, and I'm awaiting their response If I later become authorized to accept service, I'll let you know. Regards, Andrew M. Agtagma, Esq. LAW CENTER 1291 E. Hillsdale Blvd., Suite 211B Foster City, CA 94404 (650) 372-2600 ext. 104 (650) 372-9318 (facsimile) meee eee Original Message anneeee Subject: Sweet Production v. Sha (Service) From: Carmen Aviles Date: Tue, July 24, 2018 11:04 am To: Andrew Agtagma Cc: "David Miclean" , Douglas Collins file:///C|/...20required/SPI.05/Exhibits/Ex.%206%20180726%20RE%20Sweet%20Production%20v.%20Sha%20(Service).htm[8/16/2019 8:14:48 AM] NA EXHIBIT 7 a a Sent: Friday, June 14, 2019 11:07 AM To: ‘dmiclean@micleangleason.com' Ce: 'dcollins@micleangleason.com' Subject: Sweet Production, Inc. v. Sha JournalPM: J Mr. Miclean, I'm writing to follow up regarding our stipulation at the mandatory settlement conference on June 5, 2019. To date | have not heard from you or your office, other than to receive a Request for Entry of Default with respect to Mr. Sha's amended complaint. | have been waiting to discuss which documents you would like to see to properly assess the value of Mr. Sha's shares in the company, and to discuss the additional details contemplated by the stipulation. If you were waiting for me to reach out first, I'm writing now to rectify the situation. Please let me know if you would like to schedule a call to discuss these matters, or if you prefer to continue this discussion in writing. (| understand if you would prefer the fatter.) Since time is of the essence, | will wait until the end of next week to hear from you. If | don't hear from you before then, | will assume that you have chosen to litigate the case on the merits, and will proceed accordingly. Regards, Andrew M. Agtagma, Esq. LAW CENTER 951 Mariners Island Blvd., Suite 300 San Mateo, CA 94404 (650) 372-2600 ext. 704 (650) 372-9318 (facsimile) NOTICE OF CONFIDENTIALITY: This e-mail is covered by the Electronic Communications Privacy Act of 1986, 18 U.S.C. §§ 2510-2522. The information contained in this message and any attachments thereto is confidential, and may also be protected by the attorney work product doctrine and attorney-client privilege. It is intended solely for the use of the addressee(s). If you are not the intended recipient of this e-mail, you are prohibited from reading, disclosing, distributing, copying, or otherwise using its contents. If you have received this e-mail in error, please notify the sender by email, telephone or facsimile transmission, and permanently delete the original and any copy of this message. o file:///C\/.../OneDrive/@%20Action%20required/SPL.05/Exhibits/Ex.%207%20190614%20Sweet%20Production%20Inc.%20v.%20Sha.htm{8/16/2019 8:14:59 AM] Hx u~ EXHIBIT 8 From: David Miclean [dmiclean@micleangleason.com] Sent: Wednesday, July 03, 2019 6:23 PM To: Andrew M. Agtagma, . Ce: Douglas Collins; Danielle Mihalkanin Subject: RE: SPI Valuation Analysis Information Request Importance: High JournalPM: J Mr. Agtagma, Mr. Sha agreed to discuss settlement of his claims and the buyout of his ownership interest in SPI (per your request) provided your client produce financial information and documents he has been seeking for two years. He did not agree to dismiss his claims or engage in an expensive and time consuming appraisal process as a condition to receiving those documents. Mr. Sha already has an expert who can provide him information on value — but he needs the information and documents | previously forwarded to you. If you want a protective order please provide one for me to review as | advised at the MSC. Sincerely, David J. Miclean Principal @ 411 Borel Avenue, Suite 310 San Mateo, CA 94402 MAIN 650 684 1181 DIRECT 650 684 1184 CELL 650 861 0899 WEB www.micleangleason.com The information contained in this electronic message and any attachments to this message are intended for the exclusive use of the addressee(s) and may contain confidential or legally privileged information intended for the sole use of the designated recipient(s). The unlawful interception, use or disclosure of such information is strictly prohibited under 18 USCA 2511 and any applicable laws. Any review, reliance or distribution by others or forwarding without express permission is strictly prohibited. If you are not the intended recipient, or have received this communication in error please notify Miclean Gleason LLP immediately at (650) 684-1181 or dmiclean@micleangleason.com and destroy all copies of this message and any attachments without reading them or saving them to disk. Thank you. From: Andrew M. Agtagma, Esq. Sent: Wednesday, June 26, 2019 3:57 PM To: David Miclean Cc: Douglas Collins ; Danielle Mihalkanin Subject: RE: SP] Valuation Analysis Information Request Mr. Miclean, I'm writing regarding Sweet Production's response to your document requests. SPI is amenable to providing the documents requested in your attachment, "SPI Valuation Analysis Information Request," to the extent they're within its possession, custody or control. It is also agreeable to the 6-year time frame requested. Its willingness to provide the requested documents, however, is contingent on Sha agreeing to the following: 1) In exchange for SPI dismissing its complaint against Sha with prejudice, Sha must also stipulate to set aside the entries of default taken against SPI, Doreen Chin, and Terry Chin, and dismiss the amended cross-complaint against those parties with prejudice. (I don't speak for Sweet Express.) 2) Any agreement regarding the purchase of Sha's shares in SPI must include non-disclosiire, non-disparagement, and non- solicitation clauses, with suitable monetary and injunctive remedies for breach, including attorneys' fees for the prevailing party and liquidated damages. 3) Sha must agree to a protective order allowing any documents disclosed to be seen only by his attorneys and their agents for the purpose of assessing the value of SPI and his shares, with suitable monetary and injunctive remedies for breach, including attorneys’ fees for the prevailing party and liquidated damages. 4) SPI asks that you identify at least three experts to assess the value of the company for purposes of selling Sha's shares--other than any experts you are already consulting with, or have retained to testify in this case. SPI is willing to select one of these experts to assess the value of the company. SPI will agree to accept the selected expert's assessment of the company's value as file://C\/...uited/SPI.05/Exhibits/Ex.%208%20190703%201823%20RE%20SP1%20Valuation%20Analysis%20Information%20Request.htm[8/16/2019 8:15:18 AM] oo EXHIBIT 9 From: Andrew M. Agtagma, Esq. [ama@lawcenter-esq.com] Sent: Wednesday, July 03, 2019 4:22 PM To: ‘David Miclean' Ce: ‘Danielle Mihalkanin'; ‘Douglas Collins’ Subject: RE: Sha adv. Sweet Production - Letter from David Miclean to Andrew Agtagma JournalPM: J Mr. Miclean, I'm writing in response to your July 1, 2019 letter requesting that discovery be reopened. My client respectfully declines. Based on the arguments in Sha's previous motions to compel and reply briefs, Sweet Production does not believe that he would prevail on a motion to compel. Not only do the briefs demonstrate a lack of proficiency with law and motion procedure, they also ignore significant substantive problems with your client's position Code of Civil Procedure § 2024.050(b) sets forth the factors for discovery to be reopened. The biggest problem with bringing a motion to compel now, after discovery has already closed, is explaining why it wasn't done before the discovery hearing cutoff. Sha served the written discovery requests and deposition notices in July 2018, yet filed the first motion to compel more than six months later in February 2019. He then waited another six weeks to re-file it, after it was denied without prejudice in early April 2019. The motions are substantively identical. There's no reason it could not have been filed within the deadlines established by the first trial date. Perhaps Sha felt that the parties would stipulate to continue the trial date and the related discovery deadlines, or that he could forgo discovery and "wing it" at trial. (It's noteworthy, for example, that he did not opt to bring a motion to compel with respect to the depositions.) Or perhaps he expected that the case would eventually settle and wanted to minimize his litigation expenses. Whatever the case, it was a decision that ended up backfiring. My client specifically stipulated to continue the trial date to negotiate settlement--not to provide him with a chance to correct his tactical errors. Moreover, this issue would be moot if Sha had brought a timely, technically-proficient motion to compel. He had ample opportunity to do so. The lack of diligence in asserting his right to discovery is not an adequate justification to reopen the discovery cutoff. Bringing a motion to compel now, without substantial justification, is sanctionable conduct under § 2024.050(c). Given that this will be Sha's third attempt to bring a motion to compel, my office may request monetary sanctions if he fails yet again. Regards, Andrew M. Agtagma, Esq NOTICE OF CONFIDENTIALITY: This e-mail is covered by the Electronic Communications Privacy Act of 1986, 18 U.S.C. §§ 2510-2522. The information contained in this message and any attachments thereto is confidential, and may also be protected by the attorney work product doctrine and attorney-client privilege. It is intended solely for the use of the addressee(s). If you are not the intended recipient of this e-mail, you are prohibited from reading, disclosing, distributing, copying, or otherwise using its contents. If you have received ‘his e-mail in error, please notify the sender by email, telephone or facsimile transmission, and permanently delete the original and any copy of this message. From: Douglas Collins [mailto:dcollins@micleangleason.com] Sent: Monday, July 01, 2019 4:51 PM To: Andrew M. Agtagma, Esq. Ce: David Miclean; Danielle Mihalkanin Subject: Sha adv. Sweet Production- Letter from David Miclean to Andrew Agtagma Dear Mr. Agtagma Please find attached the following: file:///C\/...E%20Sha%20adv.%20S weet%20Production%20-%20Letter%20 from%20David%20Miclean%20to%20Andrew%20A gtagma.htm[8/16/2019 8:15:33 AM] ~ EXHIBIT 10 5 XS LAW CENTER A PROFESSIONAL CORPORATION, 951 Mariners Island Blvd Ste 300 * San Mateo, California 94404 Phone: (650) 372-2600 * Facsimile: (650) 372-9318 July 12, 2019 BY E-MAIL ONLY dmiclean@micleangleason.com David Miclean, Esq. 411 Borel Ave., Suite 310 San Mateo, CA 94402 Re: Sweet Production, Inc. v. Solomon Sha San Mateo County Superior Court, case no. 18CIV03110 Dear Mr. Miclean: I'm writing in response to your e-mail messages from July 3, 2019 and yesterday. Regarding the parties’ stipulation to provide financial records, it seems we are not on the same page as to what was agreed upon. From the outset, Solomon Sha has framed the case as if-he’s the plaintiff. He’s proceeded as if SPI’s complaint was merely a pretext to avoid being held accountable for its own alleged misdeeds. This narrative ignores, however, that Sha was already being investigated for the problems alleged in the complaint before he retained you as his attorney. (See April 13, 2017 letter re Sha suspension.) This mindset continues to distort Sha’s understanding of the procedural posture of this case, and how that impacts possible settlement. At the time of the mandatory settlement conference, Sha’s cross-complaint was not at issue because defaults had been entered against the cross-defendants. The only claims to be settled at the MSC were SPI’s. SPI broached the idea of a buy-out at the settlement conference because it realized that having a judgment against Sha would not accomplish its overarching objective to terminate all ties with him—especially now that he is openly working against its interests in a competing bakery. Realizing that Sha would need time to receive and evaluate its financial records to determine a fair buy-out price, SPI also agreed to continue the trial date. David Miclean, Esq. July 12, 2019 Page 2 of 3 It did not agree to provide financial records or continue the trial date for any other purpose. It certain!lyI did not do so to assist with proving up Sha’s claims, for which he has scant evidence. Relatedly, I take issue with your comment that Sha “did not agree to dismiss his claims or engage in an expense and time consuming appraisal process.” As to the first part of your comment, SPI did not explicitly agree to dismiss its claims either. If the point is to hew to the literal terms of the stipulation, there’s no meeting of the minds, and no path to further these settlement negotiations. As to the second part of your comment, the stipulation actually provides in Paragraph 3 that “[t]he parties will . . . discuss the use of an agreed expert to evaluate finances.” I proposed the scheme for selecting such an expert with this term of the stipulation in mind. To the extent Sha objects, SPI is open to alternative suggestions. To the extent Sha never intended to agree to such an expert, it’s just one more reason to doubt that this dispute can be resolved amicably. (Other indicia include his refusal to take the July 2, 2019 motion to compel off calendar, the nearly two-week delay before Sha presented his request for valuation analysis information, and his persistence in filing motions regarding discovery.) As you correctly point out, the time for the parties to “agree to SPI’s production of documents required to meaningfully participate in settlement” was within 30 days of the MSC. Since the MSC took place on June 5, the time to come to an agreement has already passed. SPI is willing to continue negotiating the terms of this agreement as set forth in my June 26, 2019 email. If Sha is willing to entertain these terms, please advise and I will prepare a suitable protective order for your review. If Sha is unwilling to do so, there’s nothing more to discuss at this time. " It is readily apparent from reading the cross-complaint that it is based largely, if not solely, on Sha’s assertions, without independent corroboration. It’s noteworthy, for example, that many of the allegations in the cross-complaint were made on information and belief. It would also be surprising if Sha had, among other things, evidence establishing his allegations as to his initial ownership shares; evidence that SPI was improperly diverting funds through East West Bank; evidence regarding Cross- Defendant Sweet Express’s relationship to SPI; and evidence establishing his alter-ego allegations. David Miclean, Esq. July 12, 2019 Page 3 of 3 Sincerely, LAW CENTER OLM. Andrew M. Agtagma Attorney at Law Enclosure ry VY PROOF OF SERVICE STATE OF CALIFORNIA, COUNTY OF SAN FRANCISCO Iam employed in the County of San Francisco, State of California. I am over the age of 18 and not a party to the within action; my business address is: 75 Columbia Sq., San Francisco, CA 94103. On August 16, 2019, I served the foregoing document(s) described as: PLAINTIFF’S MEMORANDUM OPPOSING DEFENDANT SOLOMON SHA’S MOTION FOR LEAVE OF COURT TO FILE AND HAVE HEARD SHA’S MOTION FOR TERMINATING SANCTIONS OR ALTERNATIVELY TO REOPEN AND COMPEL DISCOVERY; DECLARATION OF ANDREW M. AGTAGMA on interested parties in this action by placing a true copy thereof enclosed in sealed envelopes as follows: David Miclean, Esq. MICLEAN GLEASON LLP 10 411 Borel Ave., Suite 310 San Mateo, CA 94402 il gg BY MAIL (C.CP. § 10134) | am readily familiar with the firm’s practice of collection and ax 12 processing correspondence for mailing with the U.S. Postal Service. Under that practice it 7H would be d osited with the U.S. Postal Service on that same day with postage thereon fully Bos eS 13 Fo aid at ‘oster City, California in the ordinary course of business. ZO go 14 and PI laced for collection and mailing on that date following ordinary e envelope was sealed business practices. 38a Zens 15 BY EXPRESS MAIL (C.CP. § 101) | am readily familiar with the firm’s practice of naag collection and processing correspondence for mailing with Federal Express. Under that ractice it would be deposited with Federal E: xpress on that same day thereon fully prepaid at gig EEO