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NATHAN S. MILLER, SBN: 240278 (SPACE BELOW FOR FILING STAMP ONLY)
MARY CASTRO-AYALA, SBN: 242267
MILLER & AYALA, LLP Electronically Filed
191 W. Shaw Avenue, Suite 102 6/23/2020 3:56 PM
Fresno, California 93 704 Superior Court of California
Telephone: (559) 222-6622
Facsimile: (559) 222-6626
County of Stanislaus
Clerk of the Court
Attorneys for Plaintiffs: By: Kimberly Mean, Deputy
LARRY MEZA, ASTRID DEVERA,
NADIA YAMASHITA, IRVIN MARQUEZ
\OOOQQUI#
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY 0F STANISLAUS
10
11
LARRY MEZA, ASTRID DEVERA, CASE NO.: CV 19-001327
12
NADIA YAMASHITA, IRVIN
MARQUEZ, PLAINTIFFS’ MEMORANDUM OF
13 POINTS AND AUTHORITIES IN
Plaintiff, OPPOSITION TO DEFENDANTS
14 MOTION FOR SANCTIONS
V. VVVVVVVVVVVVV
15 Date: 7/7/20
BALJINDER SINGH AKA BJ SINGH Time: 8:30 a.m.
and Does 1 through 25, inclusive, Dept.: 24
16
17 Defendants.
18
19
20
21 COMES NOW PLAINTIFFS, Who submit the following Memorandum of Points
22 and Authorities in opposition to Defendants Motion For Monetary Sanctions.
23
I.
24
STATEMENT OF THE ISSUES
25 Defendant has led a frivolous motion for sanctions against the Plaintiffs in
26 retaliation to a motion to compel Plaintiffs led on April 22, 2020. On or about June 9, 2020,
27 Defendant’s counsel sent Plaintiffs’ counsel “You
an email stating had stated upon receipt of
28 supplemental responses you would take the motion ocalendar I need to know ifyou have done
-1-
that? Ifnotlwill have tole a motionfor sanctions along with theprepared motionfor sandbagging
my client with documents that should have been produced last year.” (See Miller Dec. and
l9
Exhibit C) As demonstrated by Mr. Duran’s email, his intent in ling the current motion for
sanctions was not only malicious but a blatant misuse of the discovery process.
\OOOQQUI-hLDNH
The malicious intent oer. Duran and his client are further exemplied by the fact that Mr.
Duran led the motion untimely by waiting 57 days after Ms. Yamashita produced the documents
(April 14, 2020); 51 days after his purported meet and confer letter to Plaintiffs’ counsel (April 20,
2020); and led this motion just 1 day after his email to opposing counsel threatening to “le a
motion for sanctions along with the prepared motion for sandbagging” if Plaintiff s counsel did not
take Plaintiffs’ motion to compel off calendar. (See Miller Dec. 111 1)
II.
DEFENDANT’S MOTION FOR SANCTIONS IS BASELESS
In this instance the facts are clear. Plaintiff, Nadia Yamashita xed an old cell phone,
discovered additional messages between the Plaintiffs and Defendant and produced them
immediately upon nding them. (See Nadia Dec.) Defendant submitted a declaration from Tomi
Moore to this Court on April 3, 2020. Plaintiffs procured a counter declaration from a current
employee to dispute the claims made by Ms.
NNNNNNNNNHt—np—AH—Ir—A—p—IH
Moore.
Specically, on April 7, 2020, Nadia Yamashita repaired an old cell phone that she
WQOUI-bmwt—‘OkoOOVQUI-hWNF‘O
was giving to her son and discovered a number of messages some of which had already been
produced and some ofwhich had not. (See Dec ofNadia Yamashita and Ex.
A, Cell Phone Repair
Receipt) A11 of the messages included the Defendant as a recipient. (See Nadia Dec.)
After counsel for Plaintiffs was able to review the additional documents, the
documents were provided to Mr. Duran on April 14, 2020. (See Miller Dec.
115) Finding additional
documents while discovery is stillopen is common. In this case, discovery does not close until
December, 2020. On April 20, 2020, Mr. Duran provided a meet and confer demanding that the
documents, which are harmful to his client’s defense, not be used in this case and withdrawn from
any motions. (See Miller Dec. 1110 and Exhibit D)
-2-
In addition to demanding that all of the messages between the Plaintiffs and
Defendant, which were produced on April 14, 2020, be essentially thrown away and never used,
Defendant also demanded that Plaintiffs retract the declaration of Gloria Castro, led in support of
the Plaintiffs’ request for a preliminary injunction and in response to the Deceleration of Tomi
Moore submitted by Defendant.
\OOOQQMAUJNr—A
(See Miller Dec. 1110 and Exhibit D)
In response to the Defendant’s confusing and improper demand, Plaintiffs’ counsel
responded advising Defendant’s counsel that it would have been impossible for the Plaintiffs to
identify Ms. Castro as a witness prior to the Plaintiffs receiving the declaration Defendant led on
April 3, 2020 by Tomi Moore. (See Miller Dec. 1110 and Exhibit D) Specically, On April 3, 2020,
Mr. Duran led a declaration on behalf of Tomi Moore making untrue allegations about a Visit that
the Plaintiffs and their counsel made to NCCL on February 24, 2020. (See Nadia Dec.)
Following receipt of Tomi Moore’s declaration, Plaintiffs did what is common in
litigation, they looked for witnesses to impeach Ms. Moore’ s statements. (See Nadia Dec and Miller
Dec. {[3)
One ofthe witnesses contacted was Gloria Castro who was at the facility on February
24, 2020 and was a percipient witness to the allegations made by Ms. Moore in her declaration.
(See
Nadia Dec. and Miller Dec.1l3) It is absurd and preposterous for the Defendant to demand that Ms.
Castro be removed as a witness. Why would the Plaintiffs list Ms. Castro as a witness before they
even considered that she would be a witness?
OOQQM$WNHOOOQ§lI$WNHO
Defendant’s logic makes no sense. It is even more
[\JNNMNNNNNr—AHp—Ar—HH—HHH
preposterous that the Defendant would le this ivolous motion for sanctions for something that is
common in the practice of law and in litigation, which is nding impeachment witnesses.
Following the unreasonable and malicious demand made by Mr. Duran, Plaintiff” s counsel
sent emails to Mr. Duran on April 20, 2020, explaining that Plaintiffs produced the documents
when
they found them and that Ms. Castro did not become a witness until Defendant submitted a
declaration by Tomi Moore on April 3, 2020. (See Miller Dec. Ex. D) How can the Defendant
possibly claim they are prejudiced when the trial date in this case is not until January, 2021; the
discovery cut offis not until December, 2020; Defendant was a recipient ofevery message produced
and Defendant failed to produce the same documents in his discovery responses?
-3-
III. THE DEFENDANT’S FRIVOLOUS MOTION SHOULD BE DENIED
AND PLAINTIFFS SHOULD BE AWARDED THE ATTORNEY’S
FEES INCURRED IN DEFENDING THIS MOTION
Pursuant to Code of Civil Procedure Section 2023.010:
Misuses of the discovery process include, but are not limited to, the following:
\OOOQQUIAMNp—n
(a) Persisting, over objection and without substantial justication, in an attempt to
obtain information or materials that are outside the scope ofpermissible discovery.
(b) Using a discovery method in a manner that does not comply with its specied
procedures.
(c) Employing a discovery method in a manner or to an extent that causes
unwarranted annoyance, embarrassment, or oppression, or undue burden and
expense.
(d) Failing to respond or to submit to an authorized method of discovery.
(e) Making, without sub stantial justication, an unmeritorious objection to discovery.
(f) Making an evasive response to discovery.
(g) Disobeying a court order to provide discovery.
(h) Making or opposing, unsuccessfully and without substantial justication, a
motion to compel or to limit discovery.
(i) Failing to confer in person, by telephone, or by letter with an opposing party or
attorney in a reasonable
NNNNNNNNN—Imr—IHI—In—tp—dv—ar—Ir—I
and good faith attempt to resolve informally any dispute
concerning discovery, ifthe section governing a particular discovery motion requires
the ling of a declaration stating facts showing that an attempt at informal resolution
has been made.
In the instant case there is no misconduct. It is common for litigants to discover
OOQQUIAUJNt—‘OWOOQQUIAUJNHO
evidence after they have responded to discovery and prior to the discovery cut off. Opposing counsel
believes that somehow, despite the fact that the discovery cut off is not until December,
2020, that
the Plaintiffs should be prevented from producing any new documents or any new witnesses. The
Defendant’s argument is not supported by any merit.
When litigants nd evidence that they previously did not know existed, such as Ms.
Yamashita, they should produce the documents. The only reason the Defendant is upset that the
evidence was produced is because it destroys his defenses to this case. It is highly unlikely that the
Defendant would be pursing a motion for sanctions if the evidence produced was favorable to him.
In fact, he would probably call and thank the Plaintiff. However, in this instance, the motion
was only
-4-
led in a wrongful and malicious effort by the Defendant and his counsel to force the Plaintiffs to
withdraw their very valid motion to compel.
IV. THE DEFENDANT’S MOTION IS UNTIMELY AND SHOULD
00QO\UI#U)Nn—n
BE DENIED.
The malicious intent of Mr. Duran and his client are further exemplied by the fact
that Mr. Duran waited 57 days after Ms. Yamashita produced the documents
(April 14, 2020); 51 days
after his purported meet and confer letter to opposing counsel (April 20,
2020); and only led this
motion l day after his email to opposing counsel threatening to “le a motion for sanctions along with
the prepared motion for sandbagging” if Plaintiffs counsel did not take his motion to compel off
calendar. (See Miller Dec. 1111) Considering that no law supports the ling of a motion for
sanctions nearly two months aer the complained of conduct and only as a retaliatory tactic to a valid
motion to compel, Defendant’s motion has to be denied and sanctions should be ordered
requiring
the Defendant to pay the Plaintiffs attorney’s fees incurred in defending this motion.
V. THIS COURT SHOULD GRANT THE PLAINTIFFS THE
ATTORNEY’S FEES INCURRED IN DEFENDING AGAINST
THE DEFENDANT’S FRIVOLOUS MOTION.
Pursuant to the pertinent section of 2023.030:
[\JNNNNMNNNr—Ir—nr—p—a—r—r—AHp—Au—l
To the extent authorized by the chapter governing any particular
discovery method or any other provision of this title, the court, aer notice
to any affected party, person, or attorney, and after opportunity for hearing,
OOQONMAWNH‘OWOOVQUI#WNHO
may impose the following sanctions against anyone engaging in conduct that
is a misuse of the discovery process:
(a) The court may impose a monetary sanction ordering that one engaging in
the misuse ofthe discovery process, or any attorney advising that conduct, or
both pay the reasonable expenses, including attorney's fees, incurred by
anyone as a result of that conduct. The court may also impose this sanction
on one unsuccessfully asserting that another has engaged in the misuse of the
discovery process, or on any attorney who advised that assertion, or on both.
If a monetary sanction is authorized by any provision of this title, the court
shall impose that sanction unless it nds that the one subject to the sanction
acted with substantial justication or that other circumstances make the
imposition of the sanction unjust.
In this instance the facts are clear. Plaintiff, Nadia Yamashita xed an old cell phone,
discovered additional messages between the Plaintiffs and Defendant and produced them
immediately
-5-
upon nding them. Further, Defendant submitted a declaration om Tomi Moore to this Court.
Plaintiffs procured a counter declaration from a current employee to dispute
the claims made by Ms.
Moore.
Lastly, given that Defendant had no reasonable basis to le this ivolous motion,
given the untimeliness ofthe motion and given the direct threat to retaliate made
\OOOQQUIALDNu—t
by Mr. Duran as the
basis for the motion, this Court should unquestionably order that the Defendant pay the sanctions
requested by Plaintiffs. The type of conduct engaged herein by the Defendant and his counsel should
not be tolerated or condoned by this Court and Plaintiffs should not be forced to bear the costs of
responding to this frivolous motion.
III.
CONCLUSION
Based upon the foregoing argument and authorities, Plaintiffs respectfully
requests the Court
issue an Order directing Defendant’s motion be denied in its entirety and
that Plaintiffs’ be awarded
monetary sanctions in the amount of ($5,580.00).
Dated: June 23, 2020 MILLER & AYALA, LLP
NNNNNNNNNn—Ar—ah‘n—Ap—ar—Ar—Ab—AHH
.._/l//;(/\ Nathan S. Miller
Attorney for Plaintiffs
OOQQUIAUJNHOKOOOQQMAWNt—o
PROOF OF SERVICE
I am a citizen of the United States and a resident of the county aforesaid; I am over the age
of eighteen years and not a party to the within above-entitled action; my business address is 191 W.
Shaw Avenue, Suite 102, Fresno, California 93704.
On June 23, 2020 I served a true copy of the following document(s):
\OOOQGUI#UJNp—A
PLAINTIFF’S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION
TO DEFENDANTS MOTION FOR SANCTIONS
on the interested parties in the above-captioned action as desiglated below:
Jack Duran
4010 Foothills Blvd., S-103, #98
Roseville, CA 95747
BY CERTIFIED MAIL, RETURN RECEIPT REQUESTED. Ideposited such envelope in
the United States mail at Fresno, California. The envelope was mailed certied, return
receipt requested, with rst-class postage fully prepaid.
XXX BY MAIL. I am readily familiar with the rm's practice of collection and processing
correspondence for mailing. Under that practice it would be deposited with the U.S. Postal
Service on that same day with postage thereon fully prepaid at Fresno, California, in the
ordinary course of business. I am aware that on motion of the party served, service is
presumed invalid ifpostal cancellation date or postage meter date is more than one day alter
the day of deposit for mailing in the afdavit.
BY FACSIMILE. I transmitted such document(s) to the addressee(s) at the facsimile
number(s) listed above.
BY OVERNIGHT MAIL.
NNNNNMNNNHv—Ir—tr—At—Ii—Ir—p—Ap—AH
By causing document(s) to be picked up by an overnight delivery
service company for delivery to addressee(s) on the next business day.
BY HAND-DELIVERY. Ipersonally delivered such document(s) to the person listed above.
OOQQM$WNHOOOQQUIAUJN~O
I declare under penalty ofperjury under the laws ofthe State of California that the foregoing
is true and correct and that this declaration was executed on June 23, 2020 at Fresno, California.
Stac
\lllllv
y Walker
_
Preview
NATHAN S. MILLER, SBN: 240278 (SPACE BELOW FOR FILING STAMP ONLY) MARY CASTRO-AYALA, SBN: 242267 MILLER & AYALA, LLP Electronically Filed 191 W. Shaw Avenue, Suite 102 6/23/2020 3:56 PM Fresno, California 93 704 Superior Court of California Telephone: (559) 222-6622 Facsimile: (559) 222-6626 County of Stanislaus Clerk of the Court Attorneys for Plaintiffs: By: Kimberly Mean, Deputy LARRY MEZA, ASTRID DEVERA, NADIA YAMASHITA, IRVIN MARQUEZ \OOOQQUI# SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY 0F STANISLAUS 10 11 LARRY MEZA, ASTRID DEVERA, CASE NO.: CV 19-001327 12 NADIA YAMASHITA, IRVIN MARQUEZ, PLAINTIFFS’ MEMORANDUM OF 13 POINTS AND AUTHORITIES IN Plaintiff, OPPOSITION TO DEFENDANTS 14 MOTION FOR SANCTIONS V. VVVVVVVVVVVVV 15 Date: 7/7/20 BALJINDER SINGH AKA BJ SINGH Time: 8:30 a.m. and Does 1 through 25, inclusive, Dept.: 24 16 17 Defendants. 18 19 20 21 COMES NOW PLAINTIFFS, Who submit the following Memorandum of Points 22 and Authorities in opposition to Defendants Motion For Monetary Sanctions. 23 I. 24 STATEMENT OF THE ISSUES 25 Defendant has led a frivolous motion for sanctions against the Plaintiffs in 26 retaliation to a motion to compel Plaintiffs led on April 22, 2020. On or about June 9, 2020, 27 Defendant’s counsel sent Plaintiffs’ counsel “You an email stating had stated upon receipt of 28 supplemental responses you would take the motion ocalendar I need to know ifyou have done -1- that? Ifnotlwill have tole a motionfor sanctions along with theprepared motionfor sandbagging my client with documents that should have been produced last year.” (See Miller Dec. and l9 Exhibit C) As demonstrated by Mr. Duran’s email, his intent in ling the current motion for sanctions was not only malicious but a blatant misuse of the discovery process. \OOOQQUI-hLDNH The malicious intent oer. Duran and his client are further exemplied by the fact that Mr. Duran led the motion untimely by waiting 57 days after Ms. Yamashita produced the documents (April 14, 2020); 51 days after his purported meet and confer letter to Plaintiffs’ counsel (April 20, 2020); and led this motion just 1 day after his email to opposing counsel threatening to “le a motion for sanctions along with the prepared motion for sandbagging” if Plaintiff s counsel did not take Plaintiffs’ motion to compel off calendar. (See Miller Dec. 111 1) II. DEFENDANT’S MOTION FOR SANCTIONS IS BASELESS In this instance the facts are clear. Plaintiff, Nadia Yamashita xed an old cell phone, discovered additional messages between the Plaintiffs and Defendant and produced them immediately upon nding them. (See Nadia Dec.) Defendant submitted a declaration from Tomi Moore to this Court on April 3, 2020. Plaintiffs procured a counter declaration from a current employee to dispute the claims made by Ms. NNNNNNNNNHt—np—AH—Ir—A—p—IH Moore. Specically, on April 7, 2020, Nadia Yamashita repaired an old cell phone that she WQOUI-bmwt—‘OkoOOVQUI-hWNF‘O was giving to her son and discovered a number of messages some of which had already been produced and some ofwhich had not. (See Dec ofNadia Yamashita and Ex. A, Cell Phone Repair Receipt) A11 of the messages included the Defendant as a recipient. (See Nadia Dec.) After counsel for Plaintiffs was able to review the additional documents, the documents were provided to Mr. Duran on April 14, 2020. (See Miller Dec. 115) Finding additional documents while discovery is stillopen is common. In this case, discovery does not close until December, 2020. On April 20, 2020, Mr. Duran provided a meet and confer demanding that the documents, which are harmful to his client’s defense, not be used in this case and withdrawn from any motions. (See Miller Dec. 1110 and Exhibit D) -2- In addition to demanding that all of the messages between the Plaintiffs and Defendant, which were produced on April 14, 2020, be essentially thrown away and never used, Defendant also demanded that Plaintiffs retract the declaration of Gloria Castro, led in support of the Plaintiffs’ request for a preliminary injunction and in response to the Deceleration of Tomi Moore submitted by Defendant. \OOOQQMAUJNr—A (See Miller Dec. 1110 and Exhibit D) In response to the Defendant’s confusing and improper demand, Plaintiffs’ counsel responded advising Defendant’s counsel that it would have been impossible for the Plaintiffs to identify Ms. Castro as a witness prior to the Plaintiffs receiving the declaration Defendant led on April 3, 2020 by Tomi Moore. (See Miller Dec. 1110 and Exhibit D) Specically, On April 3, 2020, Mr. Duran led a declaration on behalf of Tomi Moore making untrue allegations about a Visit that the Plaintiffs and their counsel made to NCCL on February 24, 2020. (See Nadia Dec.) Following receipt of Tomi Moore’s declaration, Plaintiffs did what is common in litigation, they looked for witnesses to impeach Ms. Moore’ s statements. (See Nadia Dec and Miller Dec. {[3) One ofthe witnesses contacted was Gloria Castro who was at the facility on February 24, 2020 and was a percipient witness to the allegations made by Ms. Moore in her declaration. (See Nadia Dec. and Miller Dec.1l3) It is absurd and preposterous for the Defendant to demand that Ms. Castro be removed as a witness. Why would the Plaintiffs list Ms. Castro as a witness before they even considered that she would be a witness? OOQQM$WNHOOOQ§lI$WNHO Defendant’s logic makes no sense. It is even more [\JNNMNNNNNr—AHp—Ar—HH—HHH preposterous that the Defendant would le this ivolous motion for sanctions for something that is common in the practice of law and in litigation, which is nding impeachment witnesses. Following the unreasonable and malicious demand made by Mr. Duran, Plaintiff” s counsel sent emails to Mr. Duran on April 20, 2020, explaining that Plaintiffs produced the documents when they found them and that Ms. Castro did not become a witness until Defendant submitted a declaration by Tomi Moore on April 3, 2020. (See Miller Dec. Ex. D) How can the Defendant possibly claim they are prejudiced when the trial date in this case is not until January, 2021; the discovery cut offis not until December, 2020; Defendant was a recipient ofevery message produced and Defendant failed to produce the same documents in his discovery responses? -3- III. THE DEFENDANT’S FRIVOLOUS MOTION SHOULD BE DENIED AND PLAINTIFFS SHOULD BE AWARDED THE ATTORNEY’S FEES INCURRED IN DEFENDING THIS MOTION Pursuant to Code of Civil Procedure Section 2023.010: Misuses of the discovery process include, but are not limited to, the following: \OOOQQUIAMNp—n (a) Persisting, over objection and without substantial justication, in an attempt to obtain information or materials that are outside the scope ofpermissible discovery. (b) Using a discovery method in a manner that does not comply with its specied procedures. (c) Employing a discovery method in a manner or to an extent that causes unwarranted annoyance, embarrassment, or oppression, or undue burden and expense. (d) Failing to respond or to submit to an authorized method of discovery. (e) Making, without sub stantial justication, an unmeritorious objection to discovery. (f) Making an evasive response to discovery. (g) Disobeying a court order to provide discovery. (h) Making or opposing, unsuccessfully and without substantial justication, a motion to compel or to limit discovery. (i) Failing to confer in person, by telephone, or by letter with an opposing party or attorney in a reasonable NNNNNNNNN—Imr—IHI—In—tp—dv—ar—Ir—I and good faith attempt to resolve informally any dispute concerning discovery, ifthe section governing a particular discovery motion requires the ling of a declaration stating facts showing that an attempt at informal resolution has been made. In the instant case there is no misconduct. It is common for litigants to discover OOQQUIAUJNt—‘OWOOQQUIAUJNHO evidence after they have responded to discovery and prior to the discovery cut off. Opposing counsel believes that somehow, despite the fact that the discovery cut off is not until December, 2020, that the Plaintiffs should be prevented from producing any new documents or any new witnesses. The Defendant’s argument is not supported by any merit. When litigants nd evidence that they previously did not know existed, such as Ms. Yamashita, they should produce the documents. The only reason the Defendant is upset that the evidence was produced is because it destroys his defenses to this case. It is highly unlikely that the Defendant would be pursing a motion for sanctions if the evidence produced was favorable to him. In fact, he would probably call and thank the Plaintiff. However, in this instance, the motion was only -4- led in a wrongful and malicious effort by the Defendant and his counsel to force the Plaintiffs to withdraw their very valid motion to compel. IV. THE DEFENDANT’S MOTION IS UNTIMELY AND SHOULD 00QO\UI#U)Nn—n BE DENIED. The malicious intent of Mr. Duran and his client are further exemplied by the fact that Mr. Duran waited 57 days after Ms. Yamashita produced the documents (April 14, 2020); 51 days after his purported meet and confer letter to opposing counsel (April 20, 2020); and only led this motion l day after his email to opposing counsel threatening to “le a motion for sanctions along with the prepared motion for sandbagging” if Plaintiffs counsel did not take his motion to compel off calendar. (See Miller Dec. 1111) Considering that no law supports the ling of a motion for sanctions nearly two months aer the complained of conduct and only as a retaliatory tactic to a valid motion to compel, Defendant’s motion has to be denied and sanctions should be ordered requiring the Defendant to pay the Plaintiffs attorney’s fees incurred in defending this motion. V. THIS COURT SHOULD GRANT THE PLAINTIFFS THE ATTORNEY’S FEES INCURRED IN DEFENDING AGAINST THE DEFENDANT’S FRIVOLOUS MOTION. Pursuant to the pertinent section of 2023.030: [\JNNNNMNNNr—Ir—nr—p—a—r—r—AHp—Au—l To the extent authorized by the chapter governing any particular discovery method or any other provision of this title, the court, aer notice to any affected party, person, or attorney, and after opportunity for hearing, OOQONMAWNH‘OWOOVQUI#WNHO may impose the following sanctions against anyone engaging in conduct that is a misuse of the discovery process: (a) The court may impose a monetary sanction ordering that one engaging in the misuse ofthe discovery process, or any attorney advising that conduct, or both pay the reasonable expenses, including attorney's fees, incurred by anyone as a result of that conduct. The court may also impose this sanction on one unsuccessfully asserting that another has engaged in the misuse of the discovery process, or on any attorney who advised that assertion, or on both. If a monetary sanction is authorized by any provision of this title, the court shall impose that sanction unless it nds that the one subject to the sanction acted with substantial justication or that other circumstances make the imposition of the sanction unjust. In this instance the facts are clear. Plaintiff, Nadia Yamashita xed an old cell phone, discovered additional messages between the Plaintiffs and Defendant and produced them immediately -5- upon nding them. Further, Defendant submitted a declaration om Tomi Moore to this Court. Plaintiffs procured a counter declaration from a current employee to dispute the claims made by Ms. Moore. Lastly, given that Defendant had no reasonable basis to le this ivolous motion, given the untimeliness ofthe motion and given the direct threat to retaliate made \OOOQQUIALDNu—t by Mr. Duran as the basis for the motion, this Court should unquestionably order that the Defendant pay the sanctions requested by Plaintiffs. The type of conduct engaged herein by the Defendant and his counsel should not be tolerated or condoned by this Court and Plaintiffs should not be forced to bear the costs of responding to this frivolous motion. III. CONCLUSION Based upon the foregoing argument and authorities, Plaintiffs respectfully requests the Court issue an Order directing Defendant’s motion be denied in its entirety and that Plaintiffs’ be awarded monetary sanctions in the amount of ($5,580.00). Dated: June 23, 2020 MILLER & AYALA, LLP NNNNNNNNNn—Ar—ah‘n—Ap—ar—Ar—Ab—AHH .._/l//;(/\ Nathan S. Miller Attorney for Plaintiffs OOQQUIAUJNHOKOOOQQMAWNt—o PROOF OF SERVICE I am a citizen of the United States and a resident of the county aforesaid; I am over the age of eighteen years and not a party to the within above-entitled action; my business address is 191 W. Shaw Avenue, Suite 102, Fresno, California 93704. On June 23, 2020 I served a true copy of the following document(s): \OOOQGUI#UJNp—A PLAINTIFF’S MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO DEFENDANTS MOTION FOR SANCTIONS on the interested parties in the above-captioned action as desiglated below: Jack Duran 4010 Foothills Blvd., S-103, #98 Roseville, CA 95747 BY CERTIFIED MAIL, RETURN RECEIPT REQUESTED. Ideposited such envelope in the United States mail at Fresno, California. The envelope was mailed certied, return receipt requested, with rst-class postage fully prepaid. XXX BY MAIL. I am readily familiar with the rm's practice of collection and processing correspondence for mailing. Under that practice it would be deposited with the U.S. Postal Service on that same day with postage thereon fully prepaid at Fresno, California, in the ordinary course of business. I am aware that on motion of the party served, service is presumed invalid ifpostal cancellation date or postage meter date is more than one day alter the day of deposit for mailing in the afdavit. BY FACSIMILE. I transmitted such document(s) to the addressee(s) at the facsimile number(s) listed above. BY OVERNIGHT MAIL. NNNNNMNNNHv—Ir—tr—At—Ii—Ir—p—Ap—AH By causing document(s) to be picked up by an overnight delivery service company for delivery to addressee(s) on the next business day. BY HAND-DELIVERY. Ipersonally delivered such document(s) to the person listed above. OOQQM$WNHOOOQQUIAUJN~O I declare under penalty ofperjury under the laws ofthe State of California that the foregoing is true and correct and that this declaration was executed on June 23, 2020 at Fresno, California. Stac \lllllv y Walker _