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PAUL
1624
A.
Santa
WARNER,
Clara Drive,
ESQ.
Suite
(SBN
220
112168)
FILED
Superior Court of Cailfornia
County of Placer
Roseville, CA 95661
Telephone: (916) 996-3100 JUL 24 2018
Facsimile: (916) 789-7557
Jake Chatters
festive Officer & Clerk
Attorneys for Plaintiff Voyager Restaurant Group, Inc. By Lucatuorto, Deputy
IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF PLACER
10
11 VOYAGER RESTAURANT GROUP, INC., a Case No. S-CV-0035599
California corporation
12 MEMORANDUM OF POINTS AND
Plaintiff, AUTHORITIES IN SUPPORT OF
13
Vv. MOTION FOR AN ORDER TO STRIKE
ANSWER AND CROSS-COMPLAINT
14 FOR NON- RESPONSE TO DISCOVERY
SONORA GASOLINE CORPORATION, a [CCP 2023 et seq.]
15 California corporation formerly known as
SONORA PETROLEUM, INC., a California
16
corporation, GURRAJ SINGH GREWAL,
Hearing
LT SABAL FINANCIAL GROUP LP, a Date: August 7, 2018
Delaware limited partnership; 2012-SIP-1 Time: 8:30 a.m.
18 VENTURE LLC, a Delaware limited liability Dept.: 40
company as successor to TENNESSEE
19
COMMERCE BANK, a Tennessee State
Trial Date: August 27, 2018
20 chartered bank, ROSEVILLE PETROLEUM,
INC., a California corporation, NIRMAL “UNLIMITED CIVIL CASE”
21 SINGH, and DOES ONE through TWENTY,
22
inclusive,
23 Defendants.
24
25
STATEMENT OF FACTS
26
The Complaint in this action on behalf of Voyager Restaurant Group, Inc., (“Voyager”) on
21
December 10, 2014. The First Amended Complaint was filed on December 22, 2015. Attorney
28
-1-
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR AN ORDER TO
STRIKE ANSWER AND CROSS-COMPLAINT FOR NON- RESPONSE TO DISCOVERY [CCP 2023 et seq.]
Jack Burstein filed an Answer to the First Amended Complaint along with a Cross-complaint
against Voyager Restaurant Group, Inc., and others on behalf of Sonora Gasoline Corporation
(formerly known as Sonora Petroleum, Inc.) (“Sonora”) and Gurraj S. Grewal on February 24,
2016. On January 25, 2018, attorney Jack Burstein filed a First Amended Answer to the Third
Amended Complaint.
On December 1, 2017, Voyager served Form Interrogatories, Special Interrogatories,
Requests for Admission, Requests for Production of Documents, and Notice of Deposition to
Defendants Gurraj Singh Grewal (“Grewal”) and Sonora Gasoline Corporation (“Sonora”). (See
10
Ld. Exhibit A, attached hereto and incorporated herein by this reference, a true and correct copy of a
12 Proof of Service which was attached to the Form Interrogatories propounded).
13
On December 29, 2017, counsel for Voyager spoke with Attorney Jack Burstein on behalf
14
of Defendants Grewal and Sonora regarding the re-scheduling of depositions to accommodate
15
16
Grewal’s travel and promise to provide responses to written discovery the first week of January
17 2018. (See Exhibit B, attached hereto and incorporated herein by this reference, a true and
18 correct copy of an email to attorney Jack Burstein).
19
On January 2, 2018, counsel for Voyager requested an update on the status of the responses
20
to written discovery and the alternative location of depositions. (See Exhibit C, attached hereto
21
22
and incorporated herein by this reference, a true and correct copy of an email to attorney Jack
23 Burstein).
24
On January 4, 2018, counsel for Voyager received an email from attorney Jack Burstein
25
promising, on behalf of Defendants Grewal and Sonora, responses to written discovery by
26
facsimile and requesting additional time to respond to the request for production. (See Exhibit
27
28 D, attached hereto and incorporated herein by this reference, a true and correct copy of an email
«9.
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR AN ORDER TO
STRIKE ANSWER AND CROSS-COMPLAINT FOR NON- RESPONSE TO DISCOVERY [CCP 2023 et seq.]
from attorney Jack Burstein). No responses were received by facsimile.
On January 26, 2018, Jack Burstein, had unexpectedly died that morning. On February 16,
2018, in response to Voyager’s query as to the status of replacement counsel, Donna Kenney of
Mr. Burstein’s administrative staff, requested an extension of time until April 3, 2018, to
respond to a cross-complaint in a related matter.
On February 28, Voyager was provided a contact address and phone for Gurraj Singh
Grewal. On March 1, 2018, Voyager was informed that Mr. Burstein’s clients had been notified
that they should seek new counsel, along with the email address for Mr. Grewal.
10
11
Between May 4 and May 15, 2018, Voyager attempted to obtain further information on
12 contacting Mr. Grewal, including identifying who picked up his files from Mr. Burstein’s
13
office, since no substitution of attorney had been filed, he was not responding to email, would
14
not take or return counsel’s phone calls, and mail to the address provided was returned as not
15
forwarded.
16
Lid On May 4, 2018, counsel for Voyager sent a letter in accordance with CCP 286 to the
18 registered agent for Sonora Gasoline Corporation, and possible addresses for Gurraj S. Grewal,
19
including Mr. Burstein, the Tennessee address, and the attorney who previously represented Mr.
20
Grewal in Ontario Canada. The letter to Tennessee was returned, unable to forward. There has
21,
been no response from the other addresses.
22
23 On May 4, 2018, counsel for Voyager sent a letter to meet and confer requesting discovery
24
responses to the registered agent for Sonora Gasoline Corporation, and possible addresses for
29
Gurraj S. Grewal, including Mr. Burstein, the Tennessee address, and the attorney who
26
previously represented Mr. Grewal in Ontario Canada. The letter to Tennessee was returned,
27
unable to forward. There has been no response from the other addresses.
28
=3-
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR AN ORDER TO
STRIKE ANSWER AND CROSS-COMPLAI NT FOR NON- RESPONSE TO DISCOVERY [CCP 2023 et seq.]
On May 4, 2018, counsel for Voyager sent an email with a letter attached to meet and
confer requesting discovery responses to the address provided by Marissa Buck. There has
been no response and the email delivery system provided no notification of inability to deliver.
On July 10, 2018, this Court issued an order compelling discovery responses and
appearance for deposition, which order was served by email and mail. (See Exhibit E, attached
hereto and incorporated herein by this reference, a true and correct copy of the Notice of Entry
of Order)
10
11
12 ARGUMENT
13 THIS COURT SHOULD IMPOSE TERMINATING SANCTIONS ON
14
DEFENDANTS FOR FAILING TO COMPLY WITH DISCOVERY ORDER
15
16 The Code of Civil Procedure 2023.010(d) identifies as a misuse of the discovery
di
process:
18
“Failing to respond to or submit to an authorized method of discovery”.
L9
The provisions of the code of Civil Procedure Sections 2023.030(d) provides:
20
21 (d) The court may impose a terminating sanction by one of the following orders:
22 (1) An order striking out the pleadings or parts of the pleadings of any
party engaging in the misuse of the discovery process.
23
(2) An order staying further proceedings by that party until an order for
24 discovery is obeyed.
25 (3) An order dismissing the action, or any part of the action, of that
party.
26
(4) An order rendering ajudgment by default against that party.
27
28
_4-
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR AN ORDER TO
STRIKE ANSWER AND CROSS-COMPLAINT FOR NON- RESPONSE TO DISCOVERY [CCP 2023 et seq.]
The Code of Civil Procedure Section 2023.040 requires that a request for sanctions
identify the person or attorney against whom the sanctions are sought and specify the type of
sanctions sought. Sanctions are being requested against defendants, Grewal and Sonora, who
have not provided any discovery responses. Clearly, since the demise of counsel almost sik
months ago, Defendants have abandoned participation in this litigation by failing to respond to
communication, and, after having been notified to seek new counsel and having their files
picked up, have failed to file a substitution of attorney or appear in propria persona.
Courts are specifically authorized to strike a pleading “upon a motion ...or at any time
10
11 in its discretion ...” [CCP § 436]. It istherefore proper for a court to strike a [cross-] complaint
12 Pani) and dismiss the action entirely on its own motion. [Lodi v. Lodi (1985) 173 CA3d
13
628, 631, 219 CR 116, 118].
14
15
Neither Defendant has complied with the Court’s order or contacted counsel regarding
16 an appearance for deposition.
17
CONCLUSION
18
The Court has inherent power to control its docket, and, in the exercise of that power, it
19
20 may impose sanctions, including, where appropriate, default or dismissal. For each of the
21
foregoing reasons it is respectfully requested that this Court order that Sonora Gasoline
22
Corporation’s and Gurraj Singh Grewal’s Answer to the First Amended Complaint, First
23
Amended Answer to the Third Amended Complaint, and Cross-complaint, on file herein, be
24
25 stricken and their default entered.
26
27
Dated: & .
28 / Attorney for Plaintiff
Voyager Restaurant Group, Inc.
-5-
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR AN ORDER TO
STRIKE ANSWER AND CROSS-COMPLAINT FOR NON- RESPONSE TO DISCOVERY [CCP 2023 et seq.]
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PAUL 1624 A. Santa WARNER, Clara Drive, ESQ. Suite (SBN 220 112168) FILED Superior Court of Cailfornia County of Placer Roseville, CA 95661 Telephone: (916) 996-3100 JUL 24 2018 Facsimile: (916) 789-7557 Jake Chatters festive Officer & Clerk Attorneys for Plaintiff Voyager Restaurant Group, Inc. By Lucatuorto, Deputy IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF PLACER 10 11 VOYAGER RESTAURANT GROUP, INC., a Case No. S-CV-0035599 California corporation 12 MEMORANDUM OF POINTS AND Plaintiff, AUTHORITIES IN SUPPORT OF 13 Vv. MOTION FOR AN ORDER TO STRIKE ANSWER AND CROSS-COMPLAINT 14 FOR NON- RESPONSE TO DISCOVERY SONORA GASOLINE CORPORATION, a [CCP 2023 et seq.] 15 California corporation formerly known as SONORA PETROLEUM, INC., a California 16 corporation, GURRAJ SINGH GREWAL, Hearing LT SABAL FINANCIAL GROUP LP, a Date: August 7, 2018 Delaware limited partnership; 2012-SIP-1 Time: 8:30 a.m. 18 VENTURE LLC, a Delaware limited liability Dept.: 40 company as successor to TENNESSEE 19 COMMERCE BANK, a Tennessee State Trial Date: August 27, 2018 20 chartered bank, ROSEVILLE PETROLEUM, INC., a California corporation, NIRMAL “UNLIMITED CIVIL CASE” 21 SINGH, and DOES ONE through TWENTY, 22 inclusive, 23 Defendants. 24 25 STATEMENT OF FACTS 26 The Complaint in this action on behalf of Voyager Restaurant Group, Inc., (“Voyager”) on 21 December 10, 2014. The First Amended Complaint was filed on December 22, 2015. Attorney 28 -1- MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR AN ORDER TO STRIKE ANSWER AND CROSS-COMPLAINT FOR NON- RESPONSE TO DISCOVERY [CCP 2023 et seq.] Jack Burstein filed an Answer to the First Amended Complaint along with a Cross-complaint against Voyager Restaurant Group, Inc., and others on behalf of Sonora Gasoline Corporation (formerly known as Sonora Petroleum, Inc.) (“Sonora”) and Gurraj S. Grewal on February 24, 2016. On January 25, 2018, attorney Jack Burstein filed a First Amended Answer to the Third Amended Complaint. On December 1, 2017, Voyager served Form Interrogatories, Special Interrogatories, Requests for Admission, Requests for Production of Documents, and Notice of Deposition to Defendants Gurraj Singh Grewal (“Grewal”) and Sonora Gasoline Corporation (“Sonora”). (See 10 Ld. Exhibit A, attached hereto and incorporated herein by this reference, a true and correct copy of a 12 Proof of Service which was attached to the Form Interrogatories propounded). 13 On December 29, 2017, counsel for Voyager spoke with Attorney Jack Burstein on behalf 14 of Defendants Grewal and Sonora regarding the re-scheduling of depositions to accommodate 15 16 Grewal’s travel and promise to provide responses to written discovery the first week of January 17 2018. (See Exhibit B, attached hereto and incorporated herein by this reference, a true and 18 correct copy of an email to attorney Jack Burstein). 19 On January 2, 2018, counsel for Voyager requested an update on the status of the responses 20 to written discovery and the alternative location of depositions. (See Exhibit C, attached hereto 21 22 and incorporated herein by this reference, a true and correct copy of an email to attorney Jack 23 Burstein). 24 On January 4, 2018, counsel for Voyager received an email from attorney Jack Burstein 25 promising, on behalf of Defendants Grewal and Sonora, responses to written discovery by 26 facsimile and requesting additional time to respond to the request for production. (See Exhibit 27 28 D, attached hereto and incorporated herein by this reference, a true and correct copy of an email «9. MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR AN ORDER TO STRIKE ANSWER AND CROSS-COMPLAINT FOR NON- RESPONSE TO DISCOVERY [CCP 2023 et seq.] from attorney Jack Burstein). No responses were received by facsimile. On January 26, 2018, Jack Burstein, had unexpectedly died that morning. On February 16, 2018, in response to Voyager’s query as to the status of replacement counsel, Donna Kenney of Mr. Burstein’s administrative staff, requested an extension of time until April 3, 2018, to respond to a cross-complaint in a related matter. On February 28, Voyager was provided a contact address and phone for Gurraj Singh Grewal. On March 1, 2018, Voyager was informed that Mr. Burstein’s clients had been notified that they should seek new counsel, along with the email address for Mr. Grewal. 10 11 Between May 4 and May 15, 2018, Voyager attempted to obtain further information on 12 contacting Mr. Grewal, including identifying who picked up his files from Mr. Burstein’s 13 office, since no substitution of attorney had been filed, he was not responding to email, would 14 not take or return counsel’s phone calls, and mail to the address provided was returned as not 15 forwarded. 16 Lid On May 4, 2018, counsel for Voyager sent a letter in accordance with CCP 286 to the 18 registered agent for Sonora Gasoline Corporation, and possible addresses for Gurraj S. Grewal, 19 including Mr. Burstein, the Tennessee address, and the attorney who previously represented Mr. 20 Grewal in Ontario Canada. The letter to Tennessee was returned, unable to forward. There has 21, been no response from the other addresses. 22 23 On May 4, 2018, counsel for Voyager sent a letter to meet and confer requesting discovery 24 responses to the registered agent for Sonora Gasoline Corporation, and possible addresses for 29 Gurraj S. Grewal, including Mr. Burstein, the Tennessee address, and the attorney who 26 previously represented Mr. Grewal in Ontario Canada. The letter to Tennessee was returned, 27 unable to forward. There has been no response from the other addresses. 28 =3- MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR AN ORDER TO STRIKE ANSWER AND CROSS-COMPLAI NT FOR NON- RESPONSE TO DISCOVERY [CCP 2023 et seq.] On May 4, 2018, counsel for Voyager sent an email with a letter attached to meet and confer requesting discovery responses to the address provided by Marissa Buck. There has been no response and the email delivery system provided no notification of inability to deliver. On July 10, 2018, this Court issued an order compelling discovery responses and appearance for deposition, which order was served by email and mail. (See Exhibit E, attached hereto and incorporated herein by this reference, a true and correct copy of the Notice of Entry of Order) 10 11 12 ARGUMENT 13 THIS COURT SHOULD IMPOSE TERMINATING SANCTIONS ON 14 DEFENDANTS FOR FAILING TO COMPLY WITH DISCOVERY ORDER 15 16 The Code of Civil Procedure 2023.010(d) identifies as a misuse of the discovery di process: 18 “Failing to respond to or submit to an authorized method of discovery”. L9 The provisions of the code of Civil Procedure Sections 2023.030(d) provides: 20 21 (d) The court may impose a terminating sanction by one of the following orders: 22 (1) An order striking out the pleadings or parts of the pleadings of any party engaging in the misuse of the discovery process. 23 (2) An order staying further proceedings by that party until an order for 24 discovery is obeyed. 25 (3) An order dismissing the action, or any part of the action, of that party. 26 (4) An order rendering ajudgment by default against that party. 27 28 _4- MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR AN ORDER TO STRIKE ANSWER AND CROSS-COMPLAINT FOR NON- RESPONSE TO DISCOVERY [CCP 2023 et seq.] The Code of Civil Procedure Section 2023.040 requires that a request for sanctions identify the person or attorney against whom the sanctions are sought and specify the type of sanctions sought. Sanctions are being requested against defendants, Grewal and Sonora, who have not provided any discovery responses. Clearly, since the demise of counsel almost sik months ago, Defendants have abandoned participation in this litigation by failing to respond to communication, and, after having been notified to seek new counsel and having their files picked up, have failed to file a substitution of attorney or appear in propria persona. Courts are specifically authorized to strike a pleading “upon a motion ...or at any time 10 11 in its discretion ...” [CCP § 436]. It istherefore proper for a court to strike a [cross-] complaint 12 Pani) and dismiss the action entirely on its own motion. [Lodi v. Lodi (1985) 173 CA3d 13 628, 631, 219 CR 116, 118]. 14 15 Neither Defendant has complied with the Court’s order or contacted counsel regarding 16 an appearance for deposition. 17 CONCLUSION 18 The Court has inherent power to control its docket, and, in the exercise of that power, it 19 20 may impose sanctions, including, where appropriate, default or dismissal. For each of the 21 foregoing reasons it is respectfully requested that this Court order that Sonora Gasoline 22 Corporation’s and Gurraj Singh Grewal’s Answer to the First Amended Complaint, First 23 Amended Answer to the Third Amended Complaint, and Cross-complaint, on file herein, be 24 25 stricken and their default entered. 26 27 Dated: & . 28 / Attorney for Plaintiff Voyager Restaurant Group, Inc. -5- MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR AN ORDER TO STRIKE ANSWER AND CROSS-COMPLAINT FOR NON- RESPONSE TO DISCOVERY [CCP 2023 et seq.]