Motion for Terminating Sanctions in SWEET PRODUCTION, INC., A CALIFORNIA CORPORATION vs. SOLOMON SHA, et al| Trellis.Law

On June 18, 2018 a Motion-Secondary was filed involving a dispute between Sha, Solomon, Sweet Production, Inc., A California Corporation, and Does 1 To 10, Inclusive, Sha, Solomon, for (07) Unlimited Business Tort/Unfair Business Practice in the District Court of San Mateo County.

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DAVID J. MICLEAN (SBN 115098)
dmiclean@micleangleason.com
FILED
SAN MATER COUNTY
DANIELLE M. MIHALKANIN (SBN 271442)
dmihalkanin@micleangleason.com DEC 02 2019
MICLEAN GLEASON LLP

//|
411 Borel Avenue, Suite 310 perior Court

uC San Mateo, CA 94402
Telephone: (650) 684-1181 # thts

Facsimile: (650) 684-1182

Attorneys for Defendant and Cross-Complainant
Solomon Sha

ml ®
== 9 SUPERIOR COURT OF THE STATE OF CALIFORNIA

eomeren 10 COUNTY OF SAN MATEO

SWEET PRODUCTION, INC., a California Case No. 18-CIV-03110
Corporation,
13
Plaintiff, DECLARATION OF DANIELLE M.
14 MIHALKANIN IN SUPPORT OF
Vv.
DEFENDANT SOLOMON SHA’S REPLY IN
SUPPORT OF HIS MOTION FOR

gwss)
TERMINATING SANCTIONS AND
SOLOMON SHA, an individual; and DOES 1 to MONETARY SANCTIONS AGAINST
10, inclusive, PLAINTIFF SWEET PRODUCTION, INC.
17
Defendants.
18
Date: December 5, 2019
19 Time: 9:00 a.m.
Department: 1 Gon. Leland Davis, II)
20 SOLOMON SHA,

21 Cross-Complainant,

22 je clv—03110
Vv.
Deteration in Reply
2149107

(MMMUAA
23
SWEET PRODUCTION, INC., a California
24 corporation; SWEET EXPRESS; MING CHIN;
DOREEN CHIN; and ROES 1 through 10,
25 inclusive,

26 Cross-Defendants.
27

MIHALKANIN DECL. - REPLY ISO SHA SANCTIONS MOTION. CASE No. 18-CIV-03110
DECLARATION

I, Danielle M. Mihalkanin, declare as follows:

1 J am an attorney at the law firm of Miclean Gleason LLP located at 411 Borel Avenue,

Suite 310, San Mateo, California 94402. I submit this Declaration in support of Solomon Sha’s Reply

in Support of Motion for Terminating Sanctions and Monetary Sanctions Against Plaintiff Sweet
Production, Inc.

2. Jam a member in good standing of the State Bar of California.

3 I make this declaration based upon facts within my own personal knowledge, except as to

those matters stated upon information and belief, and as to those matters I believe them to be true. If

10 called upon to testify to the matters stated herein, I could testify competently and truthfully.

11 4. Attached hereto as Exhibit A is a true and correct copy of the Proof of Service on

12 November 18, 2019 of (1) Defendant Solomon Sha’s Ex Parte Notice of Motion and Motion for

13 Terminating Sanctions and Monetary Sanctions Against Plaintiff Sweet Production, Inc.; or, in the

14 Alternative, for an Order Shortening Time; (2) Declaration of Danielle M. Mihalkanin in Support of

15 Defendant Solomon Sha’s Ex Parte Notice of Motion and Motion for Terminating Sanctions and

16 Monetary Sanctions Against Plaintiff Sweet Production, Inc.; or, in the Alternative, for an Order

17 Shortening Time; and (3) Order Granting Solomon Sha’s Ex Parte Motion for Order Shortening Time.

18 Proof of delivery by second-day Federal Express is also attached to Exhibit A hereto.

19 5 Attached hereto as Exhibit B is a true and correct copy of the Proof of Service on

20 November 18, 2019 of Defendant and Cross-Complainant Solomon Sha’s Expert Witness Disclosure

21 [CCP 2034.260].
22 6 Attached hereto as Exhibit C is a true and correct copy of the courtesy email transmitting

23 the following documents to Sweet Production, Inc.’s counsel Andrew Agtagma on November 18, 2019:

24 (1) Defendant Solomon Sha’s Ex Parte Notice of Motion and Motion for Terminating Sanctions and

25 Monetary Sanctions Against Plaintiff Sweet Production, Inc.; or, in the Alternative, for an Order

26 Shortening Time; (2) Declaration of Danielle M. Mihalkanin in Support of Defendant Solomon Sha’s Ex

27 Parte Notice of Motion and Motion for Terminating Sanctions and Monetary Sanctions Against Plaintiff

MIHALKANIN DECL. - REPLY ISO SHA SANCTIONS MOTION CASE No. 18-CIV-03110
Sweet Production, Inc.; or, in the Altemative, for an Order Shortening Time; and (3) Order Granting

Solomon Sha’s Ex Parte Motion for Order Shortening Time.
7 Attached hereto as Exhibit D is a true and correct copy of Sweet Production, Inc.’s

Opposition to Sha’s Motion for Leave to File and Have Heard Sha’s Motion for Terminating Sanctions
or Alternatively to Reopen and Compel Discovery (filed Aug. 16, 2019).

8. To date, neither my office nor Mr. Sha has received any discovery responses or any

document production from SPI or the Chins.
9. My billing rate on this matter is $425 per hour. I spent approximately 5 hours to prepare

this reply and the declaration, and to gather the exhibits attached to my declaration. I estimate it will

10 take an additional approximately 2-3 hours to prepare for and attend a hearing. SPI should be

i sanctioned for the total cost of this reply, in addition to the motion itself, which is estimated at $3,400.

12 I declare under the penalty of perjury of the laws of the United States of America and the State of

13 California that the foregoing is true and correct, and that this declaration was executed this 2nd day of

14 December, 2019, in San Mateo, California.

15
16
By:
17 Danielle M. Mihalkanin
18
19
20

28
1
MiALKANIN DECL. - REPLY ISO SHA SANCTIONS MOTION CASE No. 18-CIV-03110
EXHIBIT A
DAVID J. MICLEAN (SBN 115098)
dmiclean@micleangleason.com
DANIELLE M. MIHALKANIN (SBN 271442)
dmihalkanin@micleangleason.com
MICLEAN GLEASON LLP
411 Borel Avenue, Suite 310
San Mateo, CA 94402
Telephone: (650) 684-1181
Facsimile: (650) 684-1182

Attorneys for Defendant and Cross-Complainant
Solomon Sha

SUPERIOR COURT OF THE STATE OF CALIFORNIA

10 COUNTY OF SAN MATEO

11
SWEET PRODUCTION, INC., a California Case No. 18-CIV-03110
12 corporation,

13 Plaintiff, PROOF OF SERVICE
14
Vv.
15
SOLOMON SHA, an individual; and DOES 1 to
16 10, inclusive,

17 Defendants.
18
19
AND RELATED CROSS-ACTION.
20

23
24

PROOF OF SERVICE CASE No. 18-CIV-03110
I, the undersigned, hereby certify that I am a citizen of the United States, over the age of

18, and am not a party to the within action. I am employed in the office of a member of the bar

of this Court at whose direction this service was made. My business address is 411 Borel

Avenue, Suite 310, San Mateo, California 94402. On the date set forth below, the following

was served:

. DEFENDANT SOLOMON SHA’S EX PARTE NOTICE OF MOTION AND
MOTION FOR TERMINATING SANCTIONS AND MONETARY
SANCTIONS AGAINST PLAINTIFF SWEET PRODUCTION, INC.; OR, IN
THE ALTERNATIVE, FOR AN ORDER SHORTENING TIME
DECLARATION OF DANIELLE M. MIHALKANIN IN SUPPORT OF
DEFENDANT SOLOMON SHA’S EX PARTE MOTION FOR
TERMINATING SANCTIONS AND MONETARY SANCTIONS AGAINST
PLAINTIFF SWEET PRODUCTION, INC.; OR, IN THE ALTNATIVE, FOR
10 AN ORDER SHORTENING TIME
1 ORDER GRANTING SOLOMON SHA’S EX PARTE MOTION FOR ORDER
SHORTENING TIME
12
on the following person(s) by the method(s) indicated below:
13

14 Andrew M. Agtagma Counsel for
Sweet Production, Inc.
Law Center P.C. Tel. 650-372-2600
15 951 Mariners Island Boulevard, Suite 300 Email: ama@lawcenter-esq.com
San Mateo, CA 94404
16

17
Sweet Express
18 Ming Chin
Doreen Chin In Pro Per
19 915 Terminal Way
20 San Carlos, CA 94070

21
C] BY UNITED STATES MAIL: By placing the document(s) listed above in a sealed
22 envelope(s) with postage thereon fully prepaid, for deposit in the United States mail at
San Mateo, California addressed as set forth above. I am readily familiar with the firm’s
23 practice of collection and processing correspondence for mailing. Under that practice it
would be deposited with the U.S. Postal Service on that same day, with postage thereon
24 fully prepaid in the ordinary course of business.
25
[] BY ELECTRONIC SERVICE: By causing a true copy thereof to be emailed to the
26 addresses at the email addresses indicated.

27 [X] BY SECOND-DAY DELIVERY: by placing the document(s) listed above in a sealed
FedEx envelope(s) for second-day delivery to the person(s) at the address(es) set forth
28 herein.

PROOF OF SERVICE CASE No. 18-CIV-03110
1
{ ] BY PERSONAL DELIVERY: by effecting same-day personal delivery of the
2 document(s) listed above to the person(s) at the address(es) set forth herein.

3 I declare under penalty of perjury under the laws of the State of California and the United States
4
of America that the above is true and correct. Executed at San Mateo, California, on November 18,

5]| 2019.
6
Douglas D. Collins
7
8
9
10
il

16
17

19
20

26
27

PROOF OF SERVICE CASE NO. 18-CTV-03110
12/2/2019 Track your package or shipment with FedEx 7 ng

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FROM To

Miclean Gleason LLP Law Center PC.
David Miclean Mr. Andrew M. Agtagma
411 Borel Avenue Suite 310 SAN MATEO, CA US 94404
SAN MATEO, CA US 94402 650 372-2600
650 684-1181

Shipment Facts

TRACKING NUMBER SERVICE WEIGHT
777017691842 FedEx 2Day 2 Ibs
/ 0.91 kgs

DELIVERY ATTEMPTS DELIVERED TO TOTAL PIECES
1 Receptionist/Front Desk 1

TOTAL SHIPMENT WEIGHT TERMS SHIPPER REFERENCE
2 Ibs / 0.91 kgs Shipper SSHA-1701

PACKAGING SPECIAL HANDLING SECTION STANDARD TRANSIT
FedEx Envelope Deliver Weekday
11/20/2019 by 4:30 pm
SHIP DATE ACTUAL DELIVERY
By Wed 11/20/2019 12:03 pm
a
Mon 17/18/2019

~ rene
https:/Awww.fedex.com/apps/fedextrack/?action=track&tracknumbers=777017691842[|20191118&cntry_code=us&language=en8clienttype=Mhist 12
12/2/2019 Track your package or shipment with FedEx ‘ing
iravel History Local Scan Time

Wednesday, 11/20/2019
12:03 pm ‘SAN MATEO, CA Delivered
11 am ‘SOUTH SAN FRANCISCO, CA On FedEx vehicle for delivery
6:59am ‘SOUTH SAN FRANCISCO, CA At local FedEx facility
- - - ~~ a
Tuesday, 1119/2019
948 am ‘SOUTH SAN FRANCISCO, CA Atlocal Fed&x facility
Package nat due for delivery
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Package not due tor delivery
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CA At local FedEx facility
Package nat due for delivery
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8:01 am SOUTH SAN FRANCISCO, CA At local FedEx facility
3:21 am ‘SAN FRANCISCO, CA At destination sort facility
237 am OAKLAND, CA, Departed FedEx location
Monday, 11/18/2019
10:07 pm OAKLAND, CA Arrived at FedEx location
9:30 pm ‘SOUTH SAN FRANCISCO, CA Left FedEx origin facility
6:31 pm ‘Shipment information sent to FedEx
5117 pm ‘SOUTH SAN FRANCISCO, Picked up

sk FedEx |
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-
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hilp:/imwfedex.comlappsiiedextrack/?actio track&tracknumbers=777017691842|}20191 18&cntry_code-usBlanguage=en&clienttype=fhist 212
EXHIBIT B
DAVID J. MICLEAN (SBN 115098)
dmiclean@micleangleason.com
DANIELLE M. MIHALKANIN (SBN 271442)
dmihalkanin@micleangleason.com
MICLEAN GLEASON LLP
411 Borel Avenue, Suite 310
San Mateo, CA 94402
Telephone: (650) 684-1181
Facsimile: (650) 684-1182

Attorneys for Defendant and Cross-Complainant
Solomon Sha

SUPERIOR COURT OF THE STATE OF CALIFORNIA

10 COUNTY OF SAN MATEO

Il
SWEET PRODUCTION, INC., a California Case No. 18-CIV-03110
12 corporation,

13 Plaintiff, PROOF OF SERVICE
14
Vv.
15
SOLOMON SHA, an individual; and DOES 1 to
16 10, inclusive,

17 Defendants.
18
19
AND RELATED CROSS-ACTION.
20

25
26
27

PROOF OF SERVICE CASE No. 18-CI'V-03110
I, the undersigned, hereby certify that I am a citizen of the United States, over the age of

18, and am not a party to the within action. I am employed in the office of a member of the bar
of this Court at whose direction this service was made. My business address is 411 Borel

Avenue, Suite 310, San Mateo, California 94402. On the date set forth below, the following

was served:

. DEFENDANT AND CROSS-COMPLAINANT SOLOMON SHA’S EXPERT
WITNESS DISCLOSURE [CCP 2034.260]

on the following person(s) by the method(s) indicated below:

Andrew M. Agtagma Counsel for
Sweet Production, Inc.
10 Law Center P.C. Tel. 650-372-2600
951 Mariners Island Boulevard, Suite 300 Email: ana@lawcenter-esg.com
ll San Mateo, CA 94404

12
Sweet Express
13
Ming Chin
14 Doreen Chin In Pro Per
915 Terminal Way
15S San Carlos, CA 94070

16
[X] BY UNITED STATES MAIL: By placing the document(s) listed above in a sealed
17 envelope(s) with postage thereon fully prepaid, for deposit in the United States mail at
San Mateo, California addressed as set forth above. J am readily familiar with the firm’s
18
practice of collection and processing correspondence for mailing. Under that practice it
19 would be deposited with the U.S. Postal Service on that same day, with postage thereon
fully prepaid in the ordinary course of business.
20
[] BY ELECTRONIC SERVICE: By causing a true copy thereof to be emailed to the
21 addresses at the email addresses indicated.
22
[] BY OVERNIGHT DELIVERY: by placing the document(s) listed above in a sealed
FedEx envelope(s) for overnight delivery to the person(s) at the address(es) set forth
23
herein.
24
[ ] BY PERSONAL DELIVERY: by effecting same-day personal delivery of the
25 document(s) listed above to the person(s) at the address(es) set forth herein.

26
27

PROOF OF SERVICE CASE NO. 18-CIV-03110
I declare under penalty of perjury under the laws of the State of California and the United States

of America that the above is true and correct. Executed at San Mateo, California, on November 18,

2019.
2.
Douglas D. Collins

10
11

14
15
16

17
18

23
24

PROOF OF SERVICE CASE No. 18-CIV-03110
EXHIBIT D
4

Andrew M. A, a (Bar No. 180703)
LAW CENTER
951 Mariners Island Blvd Ste 300
San Mateo, California 94404
650 372-2600 Telephone)
650 372-9318 Facsimile)
Attorney for Plaintiff
Sweet Production, Inc.

SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF SAN MATEO
10

11 SWEET PRODUCTION, INC., Case No, 18CIV03110
629ot
aD 12 Plaintiff, PLAINTIFF’S MEMORANDUM
Sw OPPOSING DEFENDANT SOLOMON
PSE 13 SHA’S MOTION FOR LEAVE OF
v. COURT TO FILE AND HAVE HEARD
14 SHA’S MOTION FOR TERMINATING
&eU
54
ae SOLOMON SHA, SANCTIONS OR ALTERNATIVELY
ge 1 TO REOPEN AND COMPEL
gas Defendant. DISCOVERY; DECLARATION OF

“3
16 ANDREW M. AGTAGMA
17 [Civ. Proc. Code § 2024.050(b)]
18 Date: Au st 28, 2019
Time: 9:00 a.m.
19 Dept: 1
Judge: Hon. Leland Davis, II
20

21 Trial Date: January 6, 2020
Complaint Filed: June 18, 2018
22
and Related Cross-Action.
23

24
25
26
27

-1-
Plaintiff's Opposition to Motion for Leave to File Motion for Terminating Sanctions
MEMORANDUM
L NTRODUCTION

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 IL PROCEDURAL HISTORY
11 Plaintiff Sweet Production, Inc. (“SPI”) filed its complaint against Defendant on June
on
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12 18, 2018,
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pS 13 Defendant answered and filed a cross-complaint about one month later on July 19.
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= gid 14 (Declaration of DavidJ. Miclean in Support of Sha’s Motion for Leave of Court to File and
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aap 15 Have Heard Motion for Terminating Sanctions (hereafter referred to as “Miclean Decl.”) Ex.
ae 16 7.) In addition to SPI, the cross-complaint named Doreen Chin and Ming Chin as cross-
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17 defendants, as well as Sweet Express, an unrelated entity. Jd.
18 Defaults were entered against all the cross-defendants as of October 9, 2018. (See

19 Miclean Decl. Ex. 11-12.)

20 Defendant served form interrogatories, special interrogatories, and document requests
21 on SPI on July 27, 2018. (These discovery requests are the subject of this motion.) (Miclean
22 Decl. Ex. 9.) He also served written discovery requests on Cross-Defendants Doreen Chin and

23 Ming Chin on August 9, 2018, and on Cross-Defendant Sweet Express on September 12, 2018.

24 The parties received notice of a mandatory settlement conference and jury trial
following a case management conference on October 18, 2018. These events were scheduled
26 for June 5, 2019 and June 17, 2019, respectively.
27 1
28 It

-2-
Plaintiff's Opposition to Motion for Leave to File Motion for Terminating Sanctions
On February 15, 2019, more than six months after first serving his written discovery
requests, Defendant filed his first motion to compel. (Miclean Decl. Ex. 16.) The motion to
compel was directed not only to SPI, but also to Doreen Chin and Ming Chin.
SPI did not oppose the motion to compel, nor did the other cross-defendants. (Again,
defaults were entered against SPI and the latter parties with respect to the cross-complaint.)
The motion to compel was denied without prejudice on April 2, 2019. (Miclean Decl.,
Ex. 17.)
Defendant filed and served a second motion to compel six weeks later, on May 17,

2019 (Miclean Decl., Ex. 20), one court day before the May 20 deadline for such motions to be

10 heard, see Civ. Proc. Code 2024.020(a). The hearing itself was originally scheduled for June

il 12, 2019, 5 days before the original trial date, and subsequently rescheduled by the Court to
ext
12 July 2, more than two weeks after the scheduled trial date.
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By 13 Meanwhile, the parties attended the mandatory settlement conference on June 5, 2019.
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gi 14 SPI hoped to achieve a buy-out of Defendant’s shares in the company at this proceeding.
£80
g2 15 (Agtagma Decl. § 26.) Since Defendant had already taken defaults on his cross-complaint
fa 16 (Miclean Decl. Exs. 11-12), there would have been no other basis for SPI, as the plaintiff, to
<5 offer payment to Defendant at the conference. It sought to use the valuation of his shares as
17

18 the means to do so, rather than litigating the allegations in the underlying complaint and

19 cross-complaint. (Agtagma Decl. { 26.)
20 To further its objective, SPI offered and agreed to stipulate to continue the trial date to

21 January 6, 2020. (Supplemental Declaration of DavidJ. Miclean in Support of Sha’s Motion

22 for Leave of Court to File and Have Heard Motion for Terminating Sanctions (hereafter

23 referred to as “Miclean Supp. Decl.”) Ex. 25.) However, because SPI wanted to otherwise
24 preserve the status quo, it insisted that Defendant also stipulate that any objections as to
timeliness existing at that time of the conference would not be waived. Jd. Furthermore, it
26 did not stipulate to continue the discovery cutoff or any other trial-related deadlines. Jd.

27 SPI stipulated to continue the trial date so that the parties could negotiate which
28 financial documents Defendant would receive to determine a fair value for his shares. The

-3-
Plaintiff's Opposition to Motion for Leave to File Motion for Terminating Sanctions
stipulation provided that the parties would work to come to such an agreement within 30 days
from date of the conference. (Agtagma Decl. { 27; Miclean Supp. Decl. Ex. 25.)
More than one week after the conference, SPI still had not heard from Defendant. Not

having heard from Defendant, SPI contacted defense counsel on June 14, 2019. (Agtagma
Decl. { 28, Ex. 7.) Defendant responded by submitting his request for financial information
on June 18, 2019—nearly two weeks after the conference had concluded, and nearly halfway
through the 30-day negotiation window. (Agtagma Decl. { 29; Supplemental Declaration of
DavidJ. Miclean in Support of Sha’s Motion for Leave of Court to File and Have Heard
Motion for Terminating Sanctions (hereafter “Miclean Supp. Decl.”) Ex. 26.)

10 SPI agreed to produce the financial documents requested. (Agtagma Decl. 30;
i Miclean Supp. Decl. Ex. 27.) It also explicitly agreed to dismiss its complaint with prejudice,

12 as requested by Defendant. Jd. It asked Defendant to reciprocate by explicitly agreeing to
ERS
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ce 13 dismiss his cross-complaint as well. Id.
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Rog 14 Defendant balked at dismissing his cross-complaint. (Agtagma Decl. § 31, Ex. 8.)
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15 When Defendant balked, SPI laid out why Defendant’s insistence on pursuing the allegations
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gis in his cross-complaint were misguided, given the procedural posture of the case. (Agtagma
16
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17 Decl. § 34, Ex. 10.) It argued specifically that since Defendant had already taken defaults on
18 his cross-complaint, his monetary demands arising out of the cross-complaint were outside the

19 scope of the current litigation. Jd. If Defendant wanted to resolve the case, therefore, it would

20 have to be on terms acceptable to both parties. Jd. In SPI’s case, that entailed dismissing the
21 cross-complaint and agreeing to be bought out instead. Ja.

22 SPI invited Defendant to continue negotiating the terms of the stipulation. Jd.
23 Defendant has not yet taken it up on its invitation.
24 Meanwhile, Defendant has pursued the parallel track of seeking to compel responses to

25 his written discovery requests. This strategy manifested immediately after the parties
26 stipulated to a trial continuance, when Defendant refused to take his July 2, 2019 motion to
27 compel off calendar.

-4-
Plaintiff's Opposition to Motion for Leave to File Motion for Terminating Sanctions
Defendant learned that this second motion would be denied when the Court issued its

tentative ruling on July 1, 2019. It was denied because Defendant failed, once again, to
comply with the requirements for bringing his motion, including filing it so that it would be
heard before the discovery hearing cutoff. That same day, Defendant sought SPI’s agreement
to stipulate to reopen discovery. (Miclean Decl. Ex. 23.) SPI declined, and set forth its reasons
in an e-mail dated July 3, 2019. (Agtagma Decl. { 32, Ex. 9.)
Defendant subsequently brought this third motion attempting to compel responses to

his written discovery requests. (It appears, in retrospect, that he never seriously considered
settling the case on the terms proposed by SPI at the conference, i.e., to receive a buy out
10 based on the value of his shares, in lieu of litigating the allegations in the complaint and cross-
11 complaint. He agreed to the terms in the stipulation merely as a ruse, so that he could buy
12 more time to have his untimely motion to compel heard.)
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= oF 14 mW. ARGUMENT
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15 A. Defendant’s Request for Terminating Sanctions Should Be Denied.
Shs
fe 16 Terminating sanctions are appropriate where a party engages in a pattern of repeated
as abuses of the discovery process. Civ. Proc. Code § 2023.030; see Doppes v. Bentley Motors,
17

18 Inc. 174 Cal. App. 4th 967, 992 (2009) (discovery statutes evince incremental approach to
19 discovery sanctions, starting with monetary sanctions and ending with terminating Sanctions).
20 No such pattern exists here.
21 SPI concedes that it has not responded to Defendant’s written discovery requests. The
22 appropriate sanction for such failure is not terminating sanctions, however. At most,
monetary sanctions are appropriate under these circumstances.

24 Although Defendant previously filed a motion to compel, SPI did not oppose it.
25 (Declaration of Andrew M. Agtagma (hereafter referred to as “Agtagma Decl.”) { 23.) Had it
26 done so, this act could have been construed as a misuse of the discovery process. Civ. Proc.
27 Code § 2023.010(h).
28 ///

-5-
Plaintiff's Opposition to Motion for Leave to File Motion for Terminating Sanctions
&

Moreover, the Court denied the motion without prejudice. If the Court had granted
the motion, and had SPI disobeyed that order, this too could have been construed as a misuse

of the discovery process. Civ. Proc. Code § 2023.010(g). However, SPI did not defy any Court
order compelling responses to Defendant’s written discovery because no such order existed.
If the Court grants Defendant’s motion to compel on his third attempt, it will be the
first time SPI will be subject to such an order.
There is no pattern of repeated abuses of the discovery process. There is a singular
failure to respond to Defendant’s written discovery requests, and a subsequent decision to

leverage Defendant’s inability to enforce his right to compel discovery responses on time.
10 (Agtagma Decl. {¥ 22-25.) For these reasons, Defendant’s request for terminating sanctions

il should be denied.

12 B. Def t t Met His Burden to Justify Re enins iscovery.

me Ee 13 Code of Civil Procedure § 2024.050(b) sets forth the factors for discovery to be
ZU wa
fo 14 reopened. Defendant lists these factors in his supporting memorandum, but omits certain
258 15 details to present a distorted view of how those factors apply in this case. In seeking to reopen
<3

16 discovery so that he can bring his motion to compel now—after the discovery motion cutoff has|
7 already passed—Defendant does not address his own failings as to why the hearing was not

18 scheduled to take place before the cutoff date.

19 1 The Need for Discovery Is Not, By Itself, Sufficient Reason to Reopen

20 Discovery.

21 The first factor in assessing whether or not discovery should be reopened is “the
22 necessity and reasons for the discovery.” Civ. Proc. Code § 2024.050(b)(1). While Defendant

23 addresses this factor (Defendant Solomon Sha’s Memorandum of Points and Authorities in

24 Support of Motion for Leave to File and Have Heard Motion for Terminating Sanction

25 (hereafter “Def.’s Mem. P. & A. Supp. Mot.”) at 11:26-12:17), he ignores a critical point: the
reasons he articulates to justify reopening discovery existed before the discovery cutoff passed.
27 If this factor alone were sufficient to reopen discovery, any party could do so by a bare
assertion of need, irrespective of his efforts to obtain discovery before the cutoff expired.

-6-
Plaintiff's Opposition to Motion for Leave to File Motion for Terminating Sanctions
2. Defendant Was Not Diligent in Seeking to Have His Discovery Motion

Heard Before the Discovery Cutoff.

The determinative factor in whether Defendant’s motion should be entertained is his

diligence—or lack thereof—in pursuing his various motions to compel. Civ. Proc. Code §

2024.050(b)(2). This factor weighs in favor of denying the motion.
Defendant served the written discovery requests and deposition notices on or about

July 27, 2018. (Miclean Decl. Ex. 9.) Yet he filed his first motion to compel more than six
months later on February 8, 2019. (Miclean Decl. Ex. 16.) Defendant is silent as to why he
delayed in bringing his initial motion for such an extended period.

10 The first motion was denied without prejudice on or about April 2, 2019. (Miclean
11 Decl. Ex. 17.) Nevertheless, Defendant waited another six weeks, and only filed his second

Ba 12 motion to compel on May 17, 2019. (Miclean Decl. Ex. 20.) Given that the trial was initially
a3
13 scheduled to take place on June 17, 2019, the motion should have been heard on or before
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14 May 20, 2019.
oo
B22 15 The first and second motions to compel are substantively identical. Defendant could

Gas 16 have refiled his second motion, with minor editing, almost immediately after the first motion
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17 was denied. Had he done so, it would have been filed well within the deadline established by

18 the initial June 17, 2019 trial date. To the extent the Court’s schedule could not accommodate|

19 the hearing before the discovery cutoff, Defendant could have also applied for an order
20 shortening time. He did none of these things.
21 Defendant’s argument regarding his diligence in pursuing discovery (see Def.’s Mem. P|
22 & A. Supp. Mot. At 12:18-13:24) conspicuously ignores that he waited more than six months to
bring his first motion to compel; that he waited another six weeks after the first motion was

24 denied to file his second, substantively identical, motion; and that his second motion was filed

25 after it was already too late to do so. He cannot feign ignorance of these details either, because
26 they were pointed out to him when SPI declined to stipulate to reopen discovery. (Agtagma
27 Decl. Ex. 9.)
1

-7-
Plaintiff's Opposition to Motion for Leave to File Motion for Terminating Sanctions
The reason why Defendant does not have the discovery it now claims diligence in

obtaining is because he failed to enforce his right to compel discovery competently and in a
timely way. That reason may be a basis for pursuing a legal malpractice action against his

attorney, but it is not sufficient to justify reopening discovery now that the cutoff has passed.
3 SPI Would Be Prejudiced by Having Discovery Reopened.

SPI specifically stipulated to continue the trial date to negotiate settlement—not to
provide Defendant with a chance to correct his attorney’s tactical errors. (See Agtagma Decl.

$7 26-34.) It has acted in good faith to comply with the terms of the stipulation, despite
Defendant’s insistence on simultaneously pursuing the claims in his cross-complaint. Id. SPI

10 would be prejudiced by having discovery reopened to the extent that it would be denied the
il benefit of this bargain.

soe 12 Furthermore, parties proceed to trial without material evidence for various reasons.
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13 Those reasons include, among other things, tactical decisions due to lack of resources to
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14 engage in time-consuming discovery; an expectation that the case would likely settle without
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g 8 15 having to proceed to trial; and an attorney’s lack of skill in prosecuting or defending his
gfe 16 client’s rights.
<4 17 Here, Defendant’s inability to obtain discovery is the result of his own failure to file
18 timely, technically-proficient motions to compel. And he failed to do so not once, but two

19 times. This inability may be prejudicial, but it is the type of prejudice that warrants hiring a
20 better lawyer, not reopening discovery. ~
21 Iv. CONCLUSION

22 For the foregoing reasons, Plaintiff Sweet Production, Inc. respectfully requests that the

Court deny Defendant’s motion for leave to have his motion for terminating sanctions heard,

and to deny his alternative motion to reopen and compel discovery.

25 Dated: August 15, 2019 LAW CENTER
A Professional Corporation
26

-8-
Plaintiff's Opposition to Motion for Leave to File Motion for Terminating Sanctions
DECLARATION OF ANDREW M. AGTAGMA
I, Andrew M. Agtagma, declare:
1 I am the attorney of record for Plaintiff Sweet Production, Inc. (“SPI”). I

submit this declaration in opposition to SPI’s Motion for Leave of Court to File and Have
Heard Sha’s Motion for Terminating Sanctions or Alternatively to Reopen and Compel
Discovery. I have personal knowledge of the matters stated herein, and if called as a witness,
could and would testify competently thereto.
2 I am a solo practitioner, and outside counsel for SPI. I have been practicing la

since 1995.

10 3 Plaintiff Sweet Production, Inc. (“SPI”) is a wholesale bakery operating in San
11 Carlos, California.
s2 est
12 4. Defendant Solomon Sha (“Defendant”) is a minority shareholder in SPI and a
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BoE 13 former managerial employee. He was also SPI’s corporate secretary from its inception on May|
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15, 2007 until his termination in April 2017. (He now works for an SPI competitor, San
4
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36
Be 15 Francisco Fine Bakery.)
ES 16 5 Doreen Chin and Ming (“Terry”) Chin (“the Chins”) are majority shareholders
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17 and the directors of SPI. They contacted me on or about March 20, 2017, expressing concerns|
18 because they had uncovered evidence that Defendant was actively sabotaging the business.

19 Among other things, they alleged that Defendant was recruiting SPI’s employees to San
20 Francisco Fine Bakery.
21 6. Based on the information that the Chins provided, I wrote a letter notifying
22 Defendant that he was being suspended from the company pending an investigation into the
23 allegations against him. The letter was served on Defendant on or about April 13, 2017. (A
24 true and correct copy of this letter is attached as Exhibit 1.)
25 7. In response to this letter, Defendant retained the Jaw office of his attorney of
record, David Miclean. I first became aware of this when I received a letter from his office on

27 or about August 10, 2017. (A true and correct copy of this letter is attached as Exhibit 2 to the
28 //1

-9-
Plaintiff's Opposition to Motion for Leave to File Motion for Terminating Sanctions
Declaration of David J. Miclean in Support of Sha’s Motion for Leave of Court to File and
Have Heard Motion for Terminating Sanctions (hereafter referred to as “Miclean Decl.”).)
8. In the August 10, 2017 letter, Carmen Aviles—then an associate of David

Miclean—demanded various documents, including seven years of SPI’s corporate tax returns.
(Miclean Decl. Ex. 2.)
9. T explained SPI’s objections to producing the corporate tax returns, but agreed
to produce those documents to which Defendant was entitled as a shareholder, pursuant to the|

Corporations Code. (Miclean Decl. Ex. 3.)
10. Aviles persisted in seeking the corporate tax returns, however, citing inapposite

10 legal authorities. (A true and correct copy of Aviles’s September 12, 2017 e-mail is attached as
lL Exhibit 2.) Notably, Miclean omitted this e-mail in his declaration supporting the instant

aa 12 motion.

BE 13 iL. I responded to Aviles’s letter on October 4, 2017, disagreeing with her legal
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14 analysis and maintaining SPI’s refusal to produce its corporate tax returns. (A true and
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15 correct copy of my October 4, 2017 letter is attached as Exhibit 3.) Notably, Miclean omitted
gia 16 this letter in his declaration supporting the instant motion.
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W7 12. I communicated with Aviles through March 23, 2018 regarding the requested
18 documents.

19 13. While dealing with Defendant’s demand for documents, I abstained from
20 taking further action relating to SPI’s investigation into Defendant’s conduct. After not
21 hearing from Aviles for over one month, I resumed efforts to conclude the investigation. I

22 sent a letter to Aviles on May 7, 2018 to follow up on the April 13,

Case Info

Judge

Franchi, Don R. Track Judge’s New Case

Case No.

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Document Filed Date

December 02, 2019

Case Filing Date

June 18, 2018

County

Parties

AGTAGMA, ANDREW M. Attorney
AGTAGMA, ANDREW M. Attorney for the Plaintiff
CHIN, DOREEN Cross Defendant
CHIN, MING Cross Defendant
DOES 1 TO 10, INCLUSIVE Defendant
MICLEAN, DAVID J. Attorneys for Defendants
MICLEAN, DAVID J. Attorney for the Defendant
ROES 1 THROUGH 20, INCLUSIVE Cross Defendant
SHA, SOLOMON Cross Complainant
SHA, SOLOMON Defendant
SWEET EXPRESS Cross Defendant
SWEET PRODUCTION, INC., A CALIFORNIA CORPORATION Cross Defendant
SWEET PRODUCTION, INC., A CALIFORNIA CORPORATION Plaintiff
Danielle Mihalkanin Attorneys for Defendants
Carmen Aviles Attorneys for Defendants

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Motion-Secondary: SWEET PRODUCTION, INC., A CALIFORNIA CORPORATION vs. SOLOMON SHA, et al

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