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I DAVID R. GRIFFITH, ESQ (SBN 170172)
JAMESON E.P. SHEEHAN, ESQ. (SBN 327287)
2 GRIFFITH HORN & SHEEHAN, LLP
1530 Humboldt Road, Suite 3 3/5/2021
a
J Chico, California 95928
Telephone: (530) 8 12-1 000
4 Facsimile: (530) 809-1 093
Email david@david grif hthlaw. com
5 iameson@ griffithandhorn. com
6 Attorneys for Plaintiff,
BERTON N. BERTAGNA
7
8 THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
9 IN AND FOR THE COUNTY OF BUTTE
10 BERTON N. BERTAGNA; ) Case No.: 20CV00531
V/ADE R. PORTER; )
11 JEREMY M. FUNK; ) MEMORANDUM OF POINTS AND
SEBASTIAN TAMARELLE; ) AUTHORITIES IN SUPPORT OF COMBINED
I2 B. SCOTT HOOD; )
ROGER HEYM and ROSANNE HEYM; ) 1) MOTTON TO COMPEL COMPLTANCE
13 ) WITH RESPONSE TO REQUEST FOR
Plaintiffs, ) INSPECTION AND COPYING OF
14 ) DOCUMENTS, SET ONE AND SET TWO
V )
15 ) 2) MOTTON TO COMPEL FURTHER
DEL REAL INTERNATIONAL, INC., ) RESPONSES TO REQUESTS FOR
t6 a California corporation, ) INSPECTION AND COPYING OF
dba DEL REAL COMPANY; ) DOCUMENTS SET ONE AND TWO, AND
1l M. MAX DEL REAL, ) FORM INTERROGATORIES, SET ONE
aka MATTHEW B. DEL REAL, )
18 aka MATTHEW DEL REAL, ) 3) MOTTON TO COMPEL RESPONSES TO
aka MATTHEW M. DEL REAL, ) REQUESTS FOR INSPECTION AND
t9 aka MAX DEL REAL; ) COPYING OF DOCUMENTS, SET THREE
AMMERICANN DEVELOPMENT, LLC, )
20 a Califomia Limited Liability Company; ) Hearing Date: April T ,2027
AMMERICANN HOLDINGS I, LLC, ) Time: 9:00 A.M.
2l a California Limited Liability Company; ) Dept.: I
BRIAN PRITCHARD; ) Judge: Hon. Tamara L. Mosbarger
22 NORMAN P. MARSHALL; )
DOES 1 through 50, inclusive, )
ZJ
24 AND RELATED CROSS-ACTION )
)
25
26
27
28
Memo. of P&As in Support of Combined Motion to Compel Compliance, Further Responseso and Responses
1 Table of Contents
2 I. Introduction
J II. Relevant Procedural History and Facts I
4 ru. The Court Should Issue an Order Compelling Defendant M. MAX DEL REAL to
Comply with his Responses to Request for Inspection and Copying of Documents,
a
5 Set One. -t
6 IV. The Court Should Issue an Order Compelling Defendant M. MAX DEL REAL to
Provide Amended Responses to Requests for Inspection and Copying of Documents,
7 Set One and Two. ........ 4
8 A. Plaintiff BERTON N. BERTAGNA has Met and Conferred with Defendant to
Informally Resolve the Discovery Issues for Approximately Two Months Prior to
9 Filing this Motion 4
10 B. Plaintiff BERTON N. BERTAGNA is Justified to Receive the Discovery Sought
by Request for Documents, Requests No. 4; An Order Compelling a Further
11 Response is Required 4
l2 C. Plaintiff BERTON N. BERTAGNA is Justified to Receive the Discovery Sought
by Request for Documents, Requests No. 8; An Order Compelling a Further
13 Response is Required 5
I4 D. Plaintiff BERTON N. BERTAGNA is Justified to Receive the Discovery Sought
by Request for Documents, Requests No. 16; An Order Compelling a Further
15 Response is Required 6
I6 E. Plaintiff BERTON N. BERTAGNA is Justified to Receive the Discovery Sought
by Request for Documents, Requests No. 17; An Order Compelling a Further
I7 Response is Required 7
l8 F Plaintiff BERTON N. BERTAGNA is Justified to Receive the Discovery Sought
by Request for Documents, Requests No. 100; An Order Compelling a Furthei
I9 Response is Required. I
20 V The Court Should Issue an Order Compelling Defendant M. MAX DEL REAL to
Provide Amended Responses to Form Intemogatories, Interrogatory No. 15.1. ..... 9
2I
A. Plaintiff BERTON N. BERTAGNA has Met and Conferred with Defendant to
22 Informal Discovery Issues for
ZJ
to Filing itï::lÏ:::il T:':::i: ::î 10
B. Plaintiff BERTON N. BERTAGNA is Justified to Receive the Discovery Sought
24 by Interrogatory No. 15.1; An Order Compelling a Further Response is Required 10
25 VL The Court Should Issue an Order Compelling Defendant M. MAX DEL REAL to
Provide Responses to Request for Inspection and Copying of Documents, Set Three 11
26
VII. The Court Should Order Defendant M. MAX DEL REAL and his Counsel of Record
27 to Pay Monetary Sanctions to Plaintiff BERTON N. BERTAGNA ..... t2
28 VIII. Conclusion t2
Memo. of P&As in Support of Combined Motion to Compel Compliance, Further Responseso and Responses i
1 Table of Authorities
2 Cases
J Chronicle Pub. Co. v. Superior Court (1960) 54 Cal. 2d 548, 565 5
4 Davies v. Superior Court (1984) 36 CaL3d291,301 ......... 1t
5 Hill v. National Collegiate Athletic Assn. (1994)7 Cal.4rh 1,39-40 7,8,
6 People ex rel. Dept. of Transportation v. Superior Court (1976) 60 Cal. App. 3d 352,358 11
7 Roberts v. Gulf Oil Corp (1983) 147 Cal. App. 3d 770,793 6,8,
8 Ruvalcubav. Government Employees Ins. Co. (1990)222CaI. App.3d 1579,1580-1581 lt
9 San Diego Professional Assn. v. Superior Court (1962) 58 Cal. 2d 194, 199 .......... 5
10 SCC Acquisitions, Inc. v. Superior Court (2015) 243 Cal. App.4'n 74I,756 6,8,
11 Standon Co. v. Superior Court (1990) 225 Cal. App. 3d 898,902-903 .... 4
I2 Constitutions
13 Califomia State Constitution, Article I, Section 1 ............... 6,9,
t4 Rules of Court
15 Cal. Rules of Court, Rule 3.1345 ........... 9,10,
T6 Cal. Rules of Court, Rule 3.1348
I7 At Subdivision (a) t2
l8 At Subdivision (b) t2
I9 Statutes
20 Cal. Civ. Proc. Code $2018.010, et seq II, T2,
2t Cal. Civ. Proc. Code $2023.030 12,
22 Cal. Civ. Proc. Code $2030.230 9
ZJ Cal. Civ. Proc. Code $2030.300
24 At Subdivision (a) 9,10,
25 At Subdivision (b) 9
26 At Subdivision (d) 12
27 Cal. Civ. Proc. Code $2031.060
28 At Subdivision (h) 12
Memo. of P&As in Support of Combined Motion to Compel Compliance, Further Responses, and Responses ii
1 At Subdivision (i) I2
2 Cal. Civ. Proc. Code $2031.210, et seq. J
1
J Cal. Civ. Proc. Code $2031.2a0(c)(1) .. 5
4 Cal. Civ. Proc. Code $2031.300
5 At Subdivision (a) 11
6 At Subdivision (b) 11
7 At Subdivision (c) t2
I At Subdivision (d) l2
9 Cal. Civ. Proc. Code $2031.310 4
10 At Subdivision (a) 4
11 At Subdivision (b) 4
I2 At Subdivision (h) I2
13 At Subdivision (j) t2
t4 Cal. Civ. Proc. Code $2031.320 .............. 4
15 At Subdivision (a) J
l6 At Subdivision (b) l2
t7 At Subdivision (d) T2
18 Cal. Evid. Code $$900-1070 5
t9
20
2l
22
z3
24
25
26
27
28
Memo. of P&As in Support of Combined Motion to Compel Compliance, Further Responseso and Responses iii
1 I. Introduction.
2 Plaintiff BERTON N. BERTAGNA brings this combined Motion to Compel Compliance with
a Motion to Compel
J Responses, Further Responses, and Motion to Compel to compel the production of
4 documents promised in the discovery responses of Defendant M. MAX DEL REAL, for Defendant to
5 amend his responses where defective and non-compliant with the Code of Civil Procedure, and for
6 Defendant to prepare responses to discovery where none have been provided.
7 II. Relevant Historv and Facts.
8 On November 3, 2020, Plaintiff BERTON N. BERTAGNA propounded and served via
9 electronic mail Requests for Inspection and Copying of Documents, Set One, on Defendant M. MAX
10 DEL REAL. [Declaration of Jameson E.P. Sheehan in Support of Combined Motion ("JS Decl."), fl2
11 and Exhibit"l"f
12 On November 12,2020, Plaintiff BERTON N. BERTAGNA propounded and served via
13 electronic mail Requests for Inspection and Copying of Documents, Set Two, and Form Interrogatories,
l4 Set One, on Defendant M. MAX DEL REAL. IJS Decl., fl3 and Exhibits "2" and"3"]
15 Plaintiff BERTON N. BERTAGNA and Defendant M. MAX DEL REAL agreed to a
t6 continuance of the response deadline to December 30, 2020. [JS Decl., fl4]
I7 On December 31, 2020, Defendant M. MAX DEL REAL served verified responses to Requests
l8 for Inspection and Copying of Documents, Set One and Two, and Form Interrogatories, Set One. No
19 responsive documents were produced with the responses, although the responses indicated documents
20 wouldbeproducedforDocumentRequestNos. 1,2,5,6,7,41,48,49,50,74,75,78,79,82,83,86,
2l 87 , 91, 92, 95, 96, 101, and 102. [JS Decl., fl5 and Exhibits "4", "5", and "6"]
22 On January 4,2021, Plaintiff BERTON N. BERTAGNA sent an initial meet and confer
23 communication to Defendant M. MAX DEL REAL regarding Request for Inspection and Copying of
24 Documents, Set Two, Request No. 100 and Form Interrogatory, Interrogatory 15.1. On that same date,
25 Defendant M. MAX DEL REAL indicated that amended responses would be forthcoming "by Friday
26 (January 8,202T) with responsive documents to follow by January 14,2021. [JS Decl., fl6 and Exhibit
.(7rrf
27
28 On January 8,202I, Defendant M. MAX DEL REAL failed to provide amended responses. On
Memo. of P&As in Support of Combined Motion to Compel Compliance, Further Responses, and Responses I
1 January 14,2021, Defendant did not serue responsive documents on Plaintiff. IJS Decl., fl7]
2 On January I1,2021, Plaintiff BERTON N. BERTAGNA propounded and served electronically
a
J Request for Inspection and Copying of Documents, Set Three on Defendant M. MAX DEL REAL.
4 Responses were due to be served by Defendant on February 16,2021. [JS Decl., fl8 and Exhibit "S"]
5 On January 13,2021, Plaintiff BERTON N. BERTAGNA further met and conferred regarding
6 the defects in the responses from Defendant M. MAX DEL REAL to Request for Inspection and
7 Copying of Documents, Set One and Two, and Form Interrogatories, Set One, Interrogatory 15.1.
8 Defendant was provided seven (7) days to respond, or a motion to compel would be filed. [JS Decl., fl9
9 and Exhibit"9"l
l0 On January 18,202I, Defendant M. MAX DEL REAL requested an extension to respond to the
11 meet and confer to January 25,2021and agreed to extend any deadline for Plaintiff BERTON N.
t2 BERTAGNA to file a motion to compel to be set at 45 days from the date of Defendant's response to the
13 meet and confer. [JS Decl., fll0 and Exhibit "9"]
l4 On January 25,2021, counsel for Defendant M. MAX DEL REAL requested a fuither two-week
15 extension with a respective extension on Plaintiffls motion to compel deadline. This extended
T6 Defendant's response deadline to the meet and confer to February 8,2021with Plaintifls motion to
l7 compel deadline being forty-five (45) days from that date, or March 25,202I. IJS Decl, fl11 and Exhibit
..9rrf
18
t9 On February 8,2021, Defendant M. MAX DEL REAL failed to respond to Plaintiffls meet and
20 confer. IJS Decl., fll2]
2t On February 16,202I, Defendant M. MAX DEL REAL failed to provide responses to Request
22 for Inspection and Copying of Documents, Set Three. [JS Decl., fl13]
23 On February 17,2021, Defendant M. MAX DEL REAL informed Plaintiff BERTON N.
24 BERTAGNA that he would provide amended responses in follow-up to Plaintiffls meet and confer with
25 responses to follow "in a few days." [JS Decl., fll4 and Exhibit'010"]
26 On February 25,202I, Plaintiff BERTON N. BERTAGNA sent a final meet and confer attempt
27 informing Defendant M. MAX DEL REAL that a motion to compel further responses would be filed if
28 verified amended responses were not served by end of business on Friday, February 26,2021. IJS Decl.,
Memo. of P&As in Support of Combined Motion to Compel Compliance, Further Responses, and Responses 2
1 flI5 and Exhibit "11"l
2 Plaintiff BERTON N. BERTAGNA additionally included a meet and confer regarding Request
a for Inspection and Copying
J of Documents, Set Three, as no responses had been received from
4 Defendant M. MAX DEL REAL. Defendant was given a deadline to respond of March 3,2021. US
5 Decl., fll6 and Exhibit "1l"l
6 On February 25,202I, Defendant M. MAX DEL REAL indicated that responding by the
7 deadline set by Plaintiff "should not be a problem." [JS Decl.,]17 and Exhibit "11"]
8 On February 25,2021, Plaintiff s counsel confirmed the e-mail addresses whereat Defendant M.
9 MAX DEL REAL could serve his amended responses and responsive documents pursuant to Cal. Civ.
10 Proc. Code $1010.6(e). [JS Decl., fll8 and Exhibit "11"]
11 On February 26,2021, Defendant M. MAX DEL REAL failed to provide to Plaintiff BERTON
I2 N. BERTAGNA amended responses to Request for Inspection and Copying of Documents, Set One and
13 Two, and Form Interrogatories, Set One, Interrogatory No. 15.1, any responsive documents, and
T4 responses to Request for Inspection and Copying of Documents, Set Three. Defendant has not contacted
15 Plaintiff indicating responses andlor documents will be forthcoming or requested any further extensions
l6 on time to do so. [JS Decl.,']f191
T7 III. The Court Should Issue an Order Compellins Defendant M. MAX DEL REAL to Comply
18 with his Responses to Request for Jnspection and Copving of Documents. Set One.
t9 If a party who has responded to,a demand for inspection, copying, testing, or sampling under
20 Cal. Civ. Proc. Code $2031 .210 et seq. afterwards fails to permit an inspection, copying, testing, or
2l sampling in accordance with the statement of compliance in that party's response, the demanding party
22 may move for an order compelling compliance. [Cal. Civ. Proc. Code 9203 1.320(a)]
23 Hete, Defendant M. MAX DEL REAL responded to Request for Inspection and Copying of
24 Documents, Set One and Two, RequestNos. 1,2,5,6,7,4I,48,49,50,74,75,78,79,82,83,86,87,
25 9l,92,95,96,101, and 102 with the response that "RP will comply with this request" or "Vy'ill
26 produce". To date, Defendant M. MAX DEL REAL has failed to provide responsive documents, even
27 after multiple meet and confer attempts and promises to do so. An order of the Court compelling
28 Defendant M. MAX DEL REAL to comply with his own discovery responses is necessary.
Memo. of P&As in Support of Combined Motion to Compel Compliance, Further Responses, and Responses 3
1 IV. The Court Should Issue an Orrler Comnell ins Defendant M. MAX DEL REAL to Provide
2 Amended Resnonses to Request for Insnection and Convins of Documents. Set One and Two.
J On receipt of a response to a demand for inspection, copying, testing, or sampling, if the
4 demanding party deems that (1) a statement of compliance with the demand is incomplete, (2) a
5 representation of inability to comply is inadequate, incomplete, or evasive, or (3) an objection in the
6 response is without merit or too general, thatparty may move for an order compelling a further response
7 to the demand. [Cal. Civ. Proc. Code $2031.310(a); see Standon Co. v. Superior Court (1990) 225 Cal.
8 App. 3d 898,902-903 (distinguishing motion to compel further response under what is now Cal. Civ.
9 Proc. Code $2031.3 l0 from motion to compel compliance with response under what is now Cal. Civ.
10 Proc. Code $2031 .320)1.
l1 A motion to compel a further response to a demand for inspection, copying, testing, or sampling
T2 must do the following:
13 'Set forth specific facts showing good cause justifying the discovery sought by the demand.
t4 'Include an accompanying declaration stating facts showing a reasonable good faith attempt at an
15 informal resolution of any issue presented by the motion. [Cal. Civ. Proc. Code $203 1 .3l0(b)]
l6 A. Plaintiff RERTO N N. BERTAGNA has Met and with Defendant to
I7 Informallv Resnlve the Discoverv Issues for Annroximatelv Two Mo Prior to Filins this
18 Motion.
t9 Plaintiff BERTON N. BERTAGNA first met and conferred with Defendant M. MAX DEL
20 REAL regarding his responses on January 4,2021, approximately two months prior to filing this motion,
2t and has continually worked with Defendant to allow Defendant to be able to amend his responses. After
22 promising to provide amended responses, Defendant has failed to provide them.
z) B. Plaintiff RFI,RT N. BERTAGNA is Justifïed to Receive Discoverv Sousht bv
24 Reouest for Documen Request No. 4.: An Order Comnellins a tr'u Resnonse is Reouired.
25 Plaintiff propounded Request No. 4 as follows:
26 REQUEST NO. 4. Any WRITING (including, without limitation, electronic images stored
on any electronic device or computer printed out to readable form) showing
27 communications by and between YOU and STEPHEN H. JOHANSON from January l,
2017 to present.
28
Memo. of P&As in Support of Combined Motion to Compel Compliance, Further Responses, and Responses 4
1 In Response, Defendant M. MAX DEL REAL answered: "RP objects to this request in its
2 entirety - attomey-client privilege."
J In this matter, the complaint alleges that Defendant M. MAX DEL REAL is the alter ego of his
4 various affiliate entitles, that Defendant misappropriated the investor plaintiffs' money, and failed to
5 account for such sums. [JS Decl., fl20]
6 This discovery is necessary for Plaintiffs to discover whether such misuse took place by
7 Defendant M. MAX DEL REAL. Mr. Johanson represents Defendant NORMAN P. MARSHALL in
8 this matter. At no time has Mr. Johanson represented Defendant M. MAX DEL REAL in this litigation,
9 and he has previously informed Plaintiffs that he does not represent Defendant M. MAX DEL REAL.
10 Under Evidence Code sections 900-1070, the party claiming a privilege has the burden of proof
11 on the preliminary lSan Diego Professional Assn. v. Superior Court (1962) 58 Cal.2d 194, I99;
12 Chronicle Pub. Co. v. Superior Court (1960) 54 Cal.2d 548, 5651 Pursuant to Cal. Civ. Proc. Code
I3 $2031.2a0@)(r):
14 If an objection on a claim of privilege or a claim that the information is protected work
product, the response shall provide sufficient factual information for other parties to
15 evaluate the merits of that claim, including, if necessary, a privilege log.
l6 [Cal. Civ. Proc. Code $2031.2a0@)(l)]
I7 The complete objection to Request No. 4 on the basis of Attorney-Client privilege is overbroad
18 and non-responsive. Defendant has failed to provide the necessary factual information to support the
I9 claim of a privilege, including providing a privilege log identiSing the responsive documents in his
20 possession, the basis of the privilege, and the facts in support of the privilege such that the parties in this
21 litigation can identifr the merits of Defendant's claims.
22 An order compelling Defendant M. MAX DEL REAL to provide a further response to Request
z) No. 4, including a privilege log, is necessary.
24 C. Plaintiff BERTON N. BERTAGNA is Justifïed to Receive the Discoverv Soueht by
25 Reouest for Documents . Reouest No. 8.: An Order Comnellins a Í'urth Resnonse is Reouired.
26 Plaintiff propounded Request No. I as follows:
27 REOUEST NO. 8. The bank statements for DEAL [sic. "DEL"I REAL
INTERNATIONAL, INC. from January 1,2018 to present.
28
Memo. of P&As in Support of Combined Motion to Compel Compliance, Further Responseso and Responses 5
1 In Response, Defendant M. MAX DEL REAL answered: "RP objects to this request in its
2 entirety - f,rnancial privacy."
J "... state Constitution protects the privacy rights of people, not corporations." fRoberts v. Gulf
4 Oil Corp (1983) 147 CaLApp.3d 770,7931In SCC Acquisitions, Inc. v. Superior Court (2015) 243
5 Cal.App.4th 74I,756, the court noting that Article I, Section 1 of the California Constitution refers only
6 to "people", and corporations do not have a constitutional right to privacy. The Court balanced the
7 questions of whether the demanded production "appears reasonably calculated to lead to the discovery
8 of admissible evidence."
9 In this matter, the complaint alleges that Defendant M. MAX DEL REAL is the alter ego of his
10 various affiliate entitles, that Defendant misappropriated the investor plaintifß' money, and failed to
ll account for such sums. [JS Decl., fl20] Accordingly, the discovery is reasonably calculated to lead to the
12 discovery of admissible evidence. To resolve any concerns related to production, Plaintiff BERTON N.
t3 BERTAGNA offered to protect the disclosure and dissemination of any produced documentation under
t4 the protection of a Stipulated Protective Order. [JS Decl., fl21]
15 An order compelling Defendant M. MAX DEL REAL to provide a further response to Request
T6 No. 8, along with any responsive documents. Should Defendant prove a financial privacy interest, then
t7 any responsive documents should be ordered to be produced pursuant to a protective order.
l8 D. Plaintiff BERTO N. BERTAGNA is Justified to Receive th Discoverv Sousht hv
t9 Reouest for Documents. Request No. 16.: An Order Comnellins a tr'urth er Resnonse is Reouired.
20 Plaintiff propounded Request No. 16 as follows:
2l REOIJEST NO! 16. Any WRITING (including, without limitation, electronic images
stored on any electronic device or computer printed out to readable form) showing
22 communications by and between DEAL [sic. "DEL'] REAL INTERNATIONAL, INC.
and any investor from January 1,2018 to present.
23
24 In Response, Defendant M. MAX DEL REAL answered: "RP objects to this request in its
25 entirety - financial privacy."
26 "... state Constitution protects the privacy rights of people, not corporations." fRoberts v. Gutf
27 Oil Corp (1983) 147 Cal.App.3d770,793llnSCC Acquisitions, Inc. v. Superior Court (2015)243
28 Cal.App.4th 741,756,the court noting that Article I, Section 1 of the California Constitution refers only
Memo. of P&As in Support of Combined Motion to Compel Compliance, Further Responses, and Responses 6
1 to "people", and corporations do not have a constitutional right to privacy. The Court balanced the
2 questions of whether the demanded production "appears reasonably calculated to lead to the discovery
J of admissible evidence."
4 In this matter, the complaint alleges that Defendant M. MAX DEL REAL is the alter ego of his
5 various affiliate entitles, that Defendant misappropriated the investor plaintiffs' money, and failed to
6 account for such sums. [JS Decl., fl20] Accordingly, the discovery is reasonably calculated to lead to the
7 discovery of admissible evidence. To resolve any concerns related to production, Plaintiff BERTON N.
I BERTAGNA offered to protect the disclosure and dissemination of any produced documentation under
9 the protection of a Stipulated Protective Order. [JS Decl., fl21]
10 Further, aparty alleging a violation of the constitutional right to privacy must show (1) a legally
11 protected privacy interest, (2) a reasonable expectation of privacy under the circumstances, and (3)
12 conduct by the other party constituting a serious invasion of the privacy interest. [Hill v. National
13 Collegiate Athletic Assn. (1994) 7 Cal4th 1,39401 Defendant M. MAX DEL REAL has failed to meet
l4 his burden of showing (1) that DEL REAL INTERNATIONAL, INC., a corporation and not an
15 individual, has a legally protected privacy interest, (2) that there is a reasonable expectation of privacy
t6 between DEL REAL INTERNATIONAL, INC., and its investors as it relates to communications
l7 between them only and how those communications are within the scope of financial privacy, and (3)
18 what conduct by Plaintiff BERTON N. BERTAGNA constitutes a serious invasion of a privacy interest.
I9 An order compelling Defendant M. MAX DEL REAL to provide a further response to Request
20 No. 16, along with any responsive documents, is necessary. Should Defendant prove a financial privacy
2I interest, then any responsive documents should be ordered to be produced pursuant to a protective order.
22 E. Plaintiff BERTON N. BERTAGNA is Justified to Receive the Discovery Soueht by
23 Request for Documents" Request No. 17.¡ An Order Compelling a Further Response is Required.
24 Plaintiff propounded Request No. 17 as follows:
25 REOUEST NO. 1Z Any WRITING showing payments made by DEAL [sic. "DEL"]
REAL INTERNATIONAL,INC. to YOU from January 1,2018 to present.
26
27 In Response, Defendant M. MAX DEL REAL answered: "RP objects to this request in its
28 entirety - financial privacy."
Memo. of P&As in Support of Combined Motion to Compel Compliance, Further Responses, and Responses 7
I "... state Constitution protects the privacy rights of people, not corporations." fRoberts v. Gulf
2 Oil Corp (1983) 147 Cal.App.3d770,793lIn SCC Acquisitions, Inc. v. Superior Court (2015)243
î
J Cal.App.4th 741,756,the court noting that Article I, Section I of the California Constitution refers only
4 to "people", and corporations do not have a constitutional right to privacy. The Court balanced the
5 questions of whether the demanded production "appears reasonably calculated to lead to the discovery
6 of admissible evidence."
7 In this matter, the complaint alleges that Defendant M. MAX DEL REAL is the alter ego of his
8 various affiliate entitles, that Defendant misappropriated the investor plaintiffs' money, and failed to
9 account for such sums. IJS Decl., fl20] Accordingly, the discovery is reasonably calculated to lead to the
10 discovery of admissible evidence. To resolve any concems related to production, Plaintiff BERTON N.
11 BERTAGNA offered to protect the disclosure and dissemination of any produced documentation under
12 the protection of a Stipulated Protective Order. IJS Decl., fl21]
13 Further, aparty alleging a violation of the constitutional right to privacy must show (1) a legally
l4 protected privacy interest, (2) a reasonable expectation of privacy under the circumstances, and (3)
15 conduct by the other party constituting a serious invasion of the privacy interest. lHill v. National
l6 Collegiate Athletic Assn. (1994) 7 Cal.4th 1,39401 Defendant M. MAX DEL REAL has failed to meet
17 his burden of showing (1) that DEL REAL INTERNATIONAL, INC., a corporation and not an
18 individual, has a legally protected privacy interest, (2) that there is a reasonable expectation of privacy
t9 between DEL REAL INTERNATIONAL, INC., and M. MAX DEL REAL as it pertains to payments
20 made to M. MAX DEL REAL, and (3) what conduct by Plaintiff BERTON N. BERTAGNA constitutes
2t a serious invasion of a privacy interest.
22 An order compelling Defendant M. MAX DEL REAL to provide a further response to Request
23 No. 17, along with any responsive documents, is necessary. Should Defendant prove a financial privacy
24 interest, then any responsive documents should be ordered to be produced pursuant to a protective order.
25 F. Plaintiff BERTON N. BERTAGNA is Justified to Receive the Discoverv Soueht bv
26 Request for Documents. Request No. 100.; An Order Compelling a Further Response is Required.
27 Plaintiff propounded Request No. 100 as follows:
28
Memo. of P&As in Support of Combined Motion to Compel Compliance, Further Responses, and Responses 8
I REQIJEST Nq. 100. Any WRITING (including, without limitation, electronic images
stored on any electronic device or computer printed out to readable form) identified- in
2 YOUR response to Form Interrogatories, Set One, No. 15.1(c).
J In Response, Defendant M. MAX DEL REAL answered: "RP is unable to comply with this
4 request as he was never served with RFA's."
5 The response is evasive and non-responsive. The request for production relates to documents
6 identified in responses to Form Interogatory No. 15.1, which deals with affirmative defenses, not
7 requests for admissions. The answer filed by M. MAX DEL REAL asserts 17 purported affirmative
8 defenses for which Plaintiff BERTON N. BERTAGNA is entitled to obtain facts, witnesses, and
9 documents supporting Defendants claims.
10 Further, on January 4,2027, Defendant M. MAX DEL REAL responded to a meet and confer
l1 communication promising that amended responses would be forthcoming on Request No. 100. [JS
T2 Decl., fl6 and Exhibit "T"l
I3 An order compelling Defendant M. MAX DEL REAL to provide a further response to Request
t4 No. 100, along with any responsive documents, is necessary.
15 V. The Court Should I an Order Comnellins l)efendant M- MAX DEL REAL to Provide
I6 Amended Resnons to Form Interrosatories. Set One. In No. 15.1
l7 The propounding party, on receipt of a response to interrogatories, may move for an order
18 compelling a further response when thatparty deems the response to include one or more of the
I9 following:
20 .An answer to a particular interrogatory that is evasive or incomplete.
21 .An exercise of the option to produce documents under Cal. Civ. Proc. Code $2030.230 that is
22 unwarranted or a required specification of documents that is inadequate.
23 .An objection to an interrogatory that is without merit or too general.
24 fsee Cal. Civ. Proc. Code 92030.300(a)]
25 The motion must be accompanied by a declaration stating facts that show a reasonable and good
26 faith attempt at an informal resolution of any issue presented by it. [Cal. Civ. Proc. Code $2030.300(b)]
27 The motion must also be accompanied by a separate statement that provides all the information
28 necessary to determine the issues presented, without reference to other documents. [see Cal. Rules of
Memo. of P&As in Support of Combined Motion to Compel Complianceo Further Responses, and Responses g
1 Court, Rule 3.1345]
2 A. Plaintiff N. BERTAGNA has Met and Conferred with Defendant to
J Informallv Resolve the Discovery Issues for Annroximatelv Two Months Prior to Filins this
4 Motion.
5 Plaintiff BERTON N. BERTAGNA first met and conferred with Defendant M. MAX DEL
6 REAL regarding his responses on January 4,2021, approximately two months prior to filing this motion,
7 and has continually worked with Defendant to allow Defendant to be able to amend his responses. After
8 promising to provide amended responses, Defendant has failed to provide them.
9 B. Plaintiff BERTON N. BERTAGNA is Justified to Receive the Discoverv Soueht bv
10 Interrogatorv No. 15.1¡ An Order Compelling a Further Response is Required.
11 Plaintiff propounded Form Interrogatory, Interrogatory 15.1, which provides as follows:
l2 15,0 Denials and Special or AffÏrmative Defenses.
15.1 Identifu each denial of a material allegation and each special or affirmative defense in
13 your pleadings and for each:
(a) state all facts upon which you base the denial or special or affirmative defense;
T4 (b) state the names, ADDRESSES, and telephone numbers of all PERSONS who have
knowledge of those facts; and
l5 (c) identify all DOCUMENT and other tangible things that support your denial or special
or affirmative defense, and state the name, ADDRESS, and telephone number of the
I6 PERSON who has each DOCUMENT.
T7 In Response, Defendant M. MAX DEL REAL answered: "No applicable as no RFA's were
18 served."
19 The current response is evasive and non-responsive. Form Interrogatory No. 15.1 deals with
20 affirmative defenses, not requests for admissions. fsee Cal. Civ. Proc. Code $2030.300(a)] The answer
2t filed by M. MAX DEL REAL asserts 17 purported affirmative defenses for which Plaintiff BERTON N
22 BERTAGNA is entitled to ob