Preview
5/17/2021
1 DAVID P. NEMECEK, JR. (State Bar No. 194402)
david@fortress-law.com
2 THE FORTRESS LAW FIRM, INC.
50 California Street, Suite 1500
3 San Francisco, CA 94111
Telephone: (415) 277-5400
4 Facsimile: (415) 723-7370
Attorneys for Plaintiffs and Cross-Defendants
5 BOOTUP VENTURES, LLC and BOOSTCARE dba
BOOTUP WORLD and Cross-Defendants MARCO
6 TEN VAANHOLT and MUKUL AGARWAL
7 SUPERIOR COURT OF THE STATE OF CALIFORNIA
8 COUNTY OF SAN MATEO
9 UNLIMITED JURISDICTION
10
11 BOOTUP VENTURES, LLC and Case No. 18CIV06232
BOOSTCARE dba BOOTUP WORLD,
12 MEMORANDUM OF POINTS AND
Plaintiffs, AUTHORITIES IN SUPPORT OF MOTION
13 BY PLAINTIFF AND CROSS-DEFENDANT
v. BOOTUP VENTURES, LLC TO COMPEL
14 FURTHER RESPONSES BY DEFENDANTS
TARUN GAUR, TRINGAPPS INC., AND CROSS-COMPLAINANTS TARUN
15 JINIGRAM, LLC, DIAL2BUY.COM, LLC, GAUR, JINIGRAM, LLC AND
RAVI KUMAR aka SHAWN KUMAR and DIAL2BUY.COM, LLC TO PROVIDE
16 DOES 1-20, FURTHER RESPONSES TO FIRST SETS OF
REQUESTS FOR PRODUCTION, SPECIAL
17 Defendants. INTERROGATORIES REQUESTS FOR
ADMISSION AND FOR MONETARY
18 SANCTIONS
19 Date: August 30, 2021
Time: 2:00 p.m.
20 Dept.: 23
Judge: Hon V. Raymond Swope
21
Action Filed: November 19, 2018
22 Trial Date: None
23 AND RELATED CROSS-COMPLAINT.
24
25
I. INTRODUCTION
26
This motion concerns the bad faith refusal by Defendants and Cross-Complainants Tarun
27
Gaur, Jinigram, LLC and Dial2buy.com, LLC (collectively “Defendants” or “Cross-
28 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION BY BOOTUP VENTURES, LLC
TO COMPEL FURTHER RESPONSES BY TARUN GAUR, JINIGRAM, LLC AND DIAL2BUY.COM, LLC TO
FIRST SETS OF REQUESTS FOR PRODUCTION, SPECIAL INTERROGATORIES, REQUESTS FOR
ADMISSION AND FOR MONETARY SANCTIONS
1
Complainants”) to respond to almost any discovery served by Plaintiff BootUp Ventures in this
2
matter. The discovery requests that are the subject of this motion were served over a year ago.
3
Defendants served boilerplate objections and refused to provide any substantive responses to
4
those requests for over eight months. The supplemental responses they served were evasive and
5
they have produced no documents in response to most of the requests for production served by
6
BootUp Ventures.
7
A heavy award of monetary sanctions against Defendants and their counsel is warranted.
8
BootUp Ventures respectfully requests that the Court grant this motion, order Defendants to serve
9
responses to the discovery at issue that comply with the Discovery Act within twenty days and
10
sanction Defendants and their counsel in the amount of $21,130.85.
11
II. FACTUAL AND PROCEDURAL BACKGROUND
12
A. THE ALLEGATIONS OF THE FIRST AMENDED COMPLAINT
13
Plaintiff BootUp Ventures serves as an “accelerator” for startups and early stage
14
technology companies. (First Amended Complaint [“FAC”], ¶ 3.) BootUp Ventures provides its
15
clients with office space as well as access to its network of entrepreneurs, investors and
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innovators and mentoring in order to promote growth and innovation by its clients. Id. BootUp
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World is an affiliate of BootUp Ventures and serves as the lessor of office space in the
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commercial office building that serves as the headquarters of BootUp Ventures in Menlo Park,
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California. Id. at ¶ 4.
20
Defendants Tarun Gaur (“Gaur”) is a co-founder of Defendant Tringapps Inc.
21
(“Tringapps”). Id. at ¶¶ 5, 7. Gaur served as the Chief Executive Officer of Tringapps at the time
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the agreements that are the subject of this action were made. Id. at ¶ 5.
23
In or around December 2016, BootUp Ventures referred one of its startup clients known
24
as Urloop, Inc. to Tringapps. Id. at ¶ 20. Urloop retained Tringapps to provide software
25
development services. Id. On or about December 19, 2016, Gaur agreed on behalf of Tringapps
26
that Tringapps would pay a referral fee to BootUp Ventures consisting of twenty percent of the
27
2
28 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION BY BOOTUP VENTURES, LLC
TO COMPEL FURTHER RESPONSES BY DEFENDANTS TARUN GAUR, JINIGRAM, LLC AND
DIAL2BUY.COM, LLC TO FIRST SETS OF REQUESTS FOR PRODUCTION, SPECIAL INTERROGATORIES,
REQUESTS FOR ADMISSION AND FOR MONETARY SANCTIONS
1
revenue Tringapps received from Urloop for performing software development services (the
2
“Referral Fee Agreement”). Id. at ¶ 21.
3
On or about November 1, 2016, Gaur entered into a Memorandum of Understanding
4
(MOU) with BootUp Ventures. Id. at ¶ 16, Exhibit A. Pursuant to paragraph 4.1 of the MOU,
5
BootUp Ventures agreed to act as an advisor on the board of directors for certain startup
6
companies that are owned and controlled by Gaur – namely, Jinigram and Dial2Buy.com – as
7
well as a corporation that had not yet been formed known as QuickAV. Id. at ¶ 17, Exhibit A at ¶
8
4.1. BootUp Ventures agreed to provide advisory services, assist with fundraising and provide
9
discounted office space for Jinigram, Dial2Buy.com and QuickAV pursuant to paragraph 4.1 of
10
the MOU. Id.
11
Pursuant to paragraphs 4.2 and 4.3 of the MOU, Gaur agreed to cause Jinigram,
12
Dial2Buy.com and QuickAV to issue warrants with an expiration date of ten years from the date
13
they were issued granting BootUp Ventures the right to purchase equity representing twenty
14
percent of the fully-diluted capitalization of each of those companies immediately upon the
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execution of the MOU in exchange for the services to be rendered by BootUp Ventures that are
16
described above. Gaur failed to cause Jinigram and Dial2Buy.com to issue those warrants. Id. at
17
¶ 18, Exhibit A.
18
Paragraph 4.4 of the MOU provides that Gaur shall cause Jinigram, Dial2Buy.com and
19
QuickAV to issue equity to BootUp Ventures representing twenty percent of the fully-diluted
20
capitalization of those entities that would vest in equal installments every month for twenty-four
21
months beginning on the effective date of the MOU. Id. at ¶ 19, Exhibit A at ¶¶ 4.3 and 4.4. To
22
date, the equity in Jinigram, Dial2Buy.com and QuickAV that is owed to BootUp Ventures
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pursuant to paragraph 4.4 of the MOU has not been issued. Id.
24
The FAC alleges causes of action for Breach of the Referral Fee Agreement and Breach of
25
the Use License by BootUp Ventures against Tringapps, Gaur and Kumar, Breach of Fiduciary
26
Duty by BootUp Ventures against Gaur, Account Stated, Open Book Account, Unjust Enrichment
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3
28 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION BY BOOTUP VENTURES, LLC
TO COMPEL FURTHER RESPONSES BY DEFENDANTS TARUN GAUR, JINIGRAM, LLC AND
DIAL2BUY.COM, LLC TO FIRST SETS OF REQUESTS FOR PRODUCTION, SPECIAL INTERROGATORIES,
REQUESTS FOR ADMISSION AND FOR MONETARY SANCTIONS
1
and for Specific Performance to compel transfer of the warrants and equity owed by Jinigram,
2
Dial2buy.com and QuickAV to BootUp Ventures.
3
B. THE ALLEGATIONS OF THE CROSS-COMPLAINT
4
Gaur, Jinigram and Dial2buy.com filed a cross-complaint against BootUp Ventures,
5
BootUp World, Marco ten Vaanholt and Mukul Agarwal on March 7, 2019. Agarwal and ten
6
Vaanholt are the co-founders of BootUp Ventures. (Cross-Compl., ¶¶ 4-5.)
7
The cross-complaint alleges that Gaur is “a highly skilled entrepreneur who has an
8
uncanny ability to create startup companies.” (Cross-Compl., ¶ 26.) The cross-complaint alleges
9
that Gaur “was looking for start up capital and know how” for Jinigram and Dial2buy.com from a
10
startup accelerator and was introduced to BootUp Ventures for that purpose. Id. at ¶ 27. Gaur
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was “specifically directed” to the website and Facebook page for BootUp Ventures “as proof of
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[the] credentials” of Agarwal and ten Vaanholt. Id. at ¶ 28, Exhibits A and B. The cross-
13
complaint alleges that the webpage for BootUp Ventures states that it has “accelerated 120+
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startups,” “obtained $400,000,000 for those startups” and that the startups “are currently valued at
15
$4 billion.” Id. at ¶ 29. The cross-complaint alleges that all of those claims were false. Id.
16
Birnik “falsely claimed BootUp’s worldwide reach in Europe, Singapore, and East Asia, and that
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BootUp had talent and resources throughout the world that would accelerate Gaur’s startups’
18
growth.” Id. at ¶ 30.
19
Gaur was persuaded by the cross-defendants “that they could provide the business savvy,
20
ready personnel at all levels (sales, support administration), and startup accelerator expertise that
21
Gaur lacked.” Id. at ¶ 30. Gaur “did not know … that Agarwal and ten Vannholt saw that they
22
could use Gaur as the Cross-defendants’ tool and entrée into bigger things that they had
23
conceived for themselves.” Id. at ¶ 30. Agarwal and ten Vaanholt “claimed that Bootup has an
24
in-house counsel Capital Procurement are called Bootup Capital,” which was also false. Id. at ¶
25
31.
26
The cross-complaint further alleges that BootUp Ventures did not perform any of the
27
4
28 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION BY BOOTUP VENTURES, LLC
TO COMPEL FURTHER RESPONSES BY DEFENDANTS TARUN GAUR, JINIGRAM, LLC AND
DIAL2BUY.COM, LLC TO FIRST SETS OF REQUESTS FOR PRODUCTION, SPECIAL INTERROGATORIES,
REQUESTS FOR ADMISSION AND FOR MONETARY SANCTIONS
1
services it promised to perform pursuant to paragraph 4.1 of the MOU, including serving as
2
advisors on the board of directors of Jinigram and Dial2buy.com, assisting in developing a
3
product and engineering strategy, assisting with the cultivation of business, market or industry
4
trend information, providing “counsel,” making introductions to eCommerce experts, building
5
product roadmaps, making introductions to venture capitalists, building “governance framework,”
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developing cost structures, assisting Gaur with finding funding, helping with “team building” or
7
providing office space. Id. at ¶ 33.
8
The cross-complaint alleges causes of action for “restitution based on rescission of the
9
MOU,” declaratory relief, fraud in the inducement, promissory fraud and three causes of action
10
for breach of contract. Cross-Complainants’ third cause of action for fraud in the inducement
11
alleges that BootUp Ventures made misrepresentations concerning its qualifications, capabilities
12
and expertise in order to fraudulently induce Gaur to enter into the MOU and that the Cross-
13
Complainants suffered in excess of $1 million in damages as a result. Cross-Complainants’
14
fourth cause of action for promissory fraud alleges that BootUp Ventures made
15
misrepresentations to Gaur concerning its ability to perform the consulting services that are listed
16
in paragraph 4.1 of the MOU and that the Cross-Complainants suffered in excess of $1 million in
17
damages as a result.
18
Cross-Complainants’ fifth cause of action for breach of contract alleges that the Cross-
19
Defendants breached the MOU by failing to perform the consulting services that are listed in
20
section 4.1 of the MOU and that the Cross-Complainants suffered in excess of $1 million in
21
damages as a result. Cross-Complainants’ sixth cause of action for breach of contract in the
22
Cross-Complaint alleges that BootUp Ventures breached paragraph 5.1 of the MOU and that the
23
Cross-Complainants suffered in excess of $1 million in damages as a result. Cross-
24
Complainants’ seventh cause of action alleges that the Cross-Defendants breached paragraph 6 of
25
the MOU and that the Cross-Complainants suffered in excess of $1 million in damages as a result.
26
27
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28 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION BY BOOTUP VENTURES, LLC
TO COMPEL FURTHER RESPONSES BY DEFENDANTS TARUN GAUR, JINIGRAM, LLC AND
DIAL2BUY.COM, LLC TO FIRST SETS OF REQUESTS FOR PRODUCTION, SPECIAL INTERROGATORIES,
REQUESTS FOR ADMISSION AND FOR MONETARY SANCTIONS
1 C. BOOTUP VENTURES PROPOUNDS REQUESTS FOR PRODUCTION,
SPECIAL INTERROGATORIES, FORM INTERROGATORIES AND
2 REQUESTS FOR ADMISSION UPON DEFENDANTS
3 BootUp Ventures served its First Sets of Requests for Production, Special Interrogatories,
4 Form Interrogatories and Requests for Admission upon Defendants Gaur, Jinigram and
5
Dial2buy.com on April 29, 2020. (Declaration of David P. Nemecek, Jr. [“Nemecek Decl.”], ¶¶
6
2-3, Exhibits A through M.) BootUp Ventures’ First Set of Requests for Production seek
7
documents concerning the relevant agreements in this matter (specifically, the MOU and the
8
9 Referral Fee Agreement), documents concerning the amount of damages BootUp Ventures
10 suffered as a result of Gaur’s breach of the MOU, documents concerning the issue of whether
11 Defendant Gaur is the alter ego of Jinigram and Dial2buy.com, documents pertaining to Urloop,
12
BootUp Ventures, Marco ten Vaanholt, Mukul Agarwal and Boostcare, documents concerning
13
the allegations contained in the Cross-Complaint (including documents supporting Defendants’
14
claims for damages) and documents identified by Defendants in their interrogatory responses.
15
Id., Exhibits A, B and C.
16
17 BootUp Ventures’ First Set of Special Interrogatories consists of standard contention
18 interrogatories that seek all facts concerning whether Defendants concede that Gaur is the alter
19 ego of Jinigram and Dial2buy.com, whether Defendants claim that BootUp Ventures breached the
20
MOU, all facts supporting those contentions, all persons with knowledge of those contentions, all
21
documents supporting those contentions and the identity of persons who have those documents.
22
Id. at Exhibits D, F and H. The special interrogatories propounded by BootUp Ventures also seek
23
24 information concerning the location of bank accounts maintained by Defendants, including the
25 financial institutions where those accounts are maintained and the identification of persons who
26 assisted with the preparation of Defendants’ financial statements. Id. The special interrogatories
27
6
28 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION BY BOOTUP VENTURES, LLC
TO COMPEL FURTHER RESPONSES BY DEFENDANTS TARUN GAUR, JINIGRAM, LLC AND
DIAL2BUY.COM, LLC TO FIRST SETS OF REQUESTS FOR PRODUCTION, SPECIAL INTERROGATORIES,
REQUESTS FOR ADMISSION AND FOR MONETARY SANCTIONS
1 also request that Defendants provide detailed calculations of the amount of damages they claim to
2 have suffered as a result of the acts of each Cross-Defendant and the amount of damages they
3
allegedly suffered on their claims for breach of contract and fraud that are alleged in the Cross-
4
Complaint and identify all documents that support those calculations. Id.
5
BootUp Ventures’ Requests for Admission request that Defendants admit that the Cross-
6
7 Complainants suffered no damages as a result of any acts allegedly taken by the Cross-
8 Defendants that are described in the Cross-Complaint and that the Cross-Defendants are not the
9 alter egos of one another. Id. at Exhibits J, K and M.
10
D. DEFENDANTS SERVE NOTHING OTHER THAN BOILERPLATE
11 OBJECTIONS CONTAINED IN UNVERIFIED RESPONSES TO THE
DISCOVERY SERVED BY BOOTUP VENTURES AND REFUSE TO
12 PROVIDE AMENDED RESPONSES THAT COMPLY WITH THE
DISCOVERY ACT OR PRODUCE ANY DOCUMENTS
13
Defendants’ responses to the discovery requests served by BootUp Ventures were due on
14
15 June 1, 2020. On May 11, 2020, Defendants requested an extension of time to respond to the
16 requests to July 2, 2020. Id. at ¶ 5, Exhibit N. Counsel for BootUp Ventures granted that request
17 as a professional courtesy and stated that “I am fine with a 30 day extension, although I am
18
granting it with the expectation that your clients will serve substantive responses to the discovery
19
requests that were served and not boilerplate objections.” Id.
20
On July 2, 2020, Defendants and Cross-Complainants served nothing but boilerplate
21
22 objections to the discovery requests that are the subject of this motion. Id. at ¶ 6, Exhibits O
23 through W. None of the responses served by Defendants are verified. Id. at ¶ 9. Defendants and
24 Cross-Complainants did not produce any documents in response to the Requests for Production
25 served by BootUp Ventures and did not serve a privilege log. Id. at ¶ 6.
26
On August 13, 2020, counsel for BootUp Ventures sent a letter to counsel for Defendants
27
7
28 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION BY BOOTUP VENTURES, LLC
TO COMPEL FURTHER RESPONSES BY DEFENDANTS TARUN GAUR, JINIGRAM, LLC AND
DIAL2BUY.COM, LLC TO FIRST SETS OF REQUESTS FOR PRODUCTION, SPECIAL INTERROGATORIES,
REQUESTS FOR ADMISSION AND FOR MONETARY SANCTIONS
1 and Cross-Complainants in which he demanded that his clients serve amended responses to the
2 discovery requests at issue that comply with the Code of Civil Procedure. Id. at ¶ 10, Exhibit X.
3
Counsel for Defendants and Cross-Complainants responded on August 17, 2020 and claimed that
4
that his clients are entitled to assert boilerplate objections to the discovery at issue and refuse to
5
provide any substantive responses and produce any documents in this matter. Id. at ¶ 12, Exhibit
6
7 Y.
8 E. BOOTUP VENTURES FILES A MOTION TO COMPEL FURTHER
RESPONSES TO ITS FIRST SETS OF WRITTEN DISCOVERY
9 REQUESTS, WHICH THIS COURT DENIES WITHOUT PREJUDICE
10
On August 18, 2020, BootUp Ventures filed a motion to compel the Defendants and
11
Cross-Complainants to provide further responses to its First Sets of Requests for Production,
12
Special Interrogatories, Form Interrogatories and Requests for Admission. On October 2, 2020,
13
this Court issued an order denying that motion without prejudice for failure to hold an Informal
14
15 Discovery Conference as required by Emergency Local Rule 3-103 and this Court’s COVID-19
16 Emergency Order before filing the motion. (Exhibit 1 to Notice of Lodgment of Exhibits.) This
17 Court ruled that BootUp Ventures may renotice its motion to compel after the conclusion of the
18
Informal Discovery Conference. Id.
19
F. CROSS-DEFENDANTS FILE A FIRST AMENDED CROSS-COMPLAINT
20 ON THE EVE OF TRIAL
21 On August 14, 2020, the Cross-Complainants filed a motion for leave to file a First
22 Amended Cross-Complaint. On October 14, 2020, this Court granted that motion.
23 The FACC realleges and repeats nearly all of the allegations that are contained in the
24 cross-complaint. The five causes of action for fraud and breach of contract that are alleged in the
25 cross-complaint are also alleged in the FACC.
26 On April 9, 2021, the Cross-Complainants filed a Second Amended Cross-Complaint (the
27 “SACC”). The five causes of action for fraud and breach of contract that are alleged in the cross-
8
28 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION BY BOOTUP VENTURES, LLC
TO COMPEL FURTHER RESPONSES BY DEFENDANTS TARUN GAUR, JINIGRAM, LLC AND
DIAL2BUY.COM, LLC TO FIRST SETS OF REQUESTS FOR PRODUCTION, SPECIAL INTERROGATORIES,
REQUESTS FOR ADMISSION AND FOR MONETARY SANCTIONS
1
complaint are also alleged in the SACC.
2
G. DEFENDANTS AND CROSS-COMPLAINANTS SERVE
3 SUPPLEMENTAL RESPONSES TO THE DISCOVERY REQUESTS AT
4 ISSUE THAT ARE INCOMPLETE AND EVASIVE AND PRODUCE
ALMOST NO DOCUMENTS IN RESPONSE TO THE REQUESTS FOR
5 PRODUCTION PROPOUNDED BY BOOTUP VENTURES
6 Gaur, Jinigram and Dial2buy.com served supplemental responses to the requests for
7 production, special interrogatories and requests for admission that are the subject of this motion
8 on December 30, 2020. (Nemecek Decl., ¶ 17, Exhibits BB through JJ.) Gaur verified all of the
9 responses served by Jinigram and Dial2buy.com as the Managing Member of each entity. Id.
10 The only documents produced by Gaur, Jinigram and Dial2buy.com to date consist of
11 exhibits to the Cross-Complaint and First Amended Cross-Complaint, a screenshot of the
12 company profile for BootUp Ventures on the Bloomberg website, a screenshot of the current
13 LinkedIn page and the website for BootUp World, a screenshot of a website concerning an event
14 that was held at BootUp Ventures on March 17, 2017, a screenshot for the website that was
15 previously maintained by BootUp Ventures, documents filed with the California Secretary of
16 State by BootUp Ventures, Boostcare, Tracxn, Inc., emails between Tarun Gaur and contacts who
17 he met via BootUp Ventures as well as emails between Gaur and representatives of BootUp
18 Ventures. Id. at ¶ 18. Gaur, Jinigram and Dial2buy.com failed to produce any documents that
19 support their claims for damages that are alleged in their Cross-Complaint and have not produced
20 any documents concerning their finances (including transfers of assets between them and
21 payments of debts by one person or entity for another), as well as the formation and
22 organizational structure of Jinigram and Dial2buy.com, their investors, meetings of members and
23 management and valuations performed of both entities. Id. at ¶ 19.
24 III. THE COURT SHOULD GRANT THIS MOTION AND COMPEL DEFENDANTS
AND CROSS-COMPLAINANTS TO PROVIDE RESPONSES TO THE
25 DISCOVERY SERVED BY BOOTUP VENTURES THAT COMPLY WITH THE
CODE OF CIVIL PROCEDURE AND PRODUCE ALL DOCUMENTS THAT
26 ARE RESPONSIVE TO THE REQUESTS FOR PRODUCTION
27 A party may obtain discovery regarding any matter that is not privileged that is relevant to
9
28 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION BY BOOTUP VENTURES, LLC
TO COMPEL FURTHER RESPONSES BY DEFENDANTS TARUN GAUR, JINIGRAM, LLC AND
DIAL2BUY.COM, LLC TO FIRST SETS OF REQUESTS FOR PRODUCTION, SPECIAL INTERROGATORIES,
REQUESTS FOR ADMISSION AND FOR MONETARY SANCTIONS
1
the subject matter of the pending action or to the determination of any motion made in that action
2
if the matter is either itself admissible or appears to be reasonably calculated to lead to the
3
discovery of admissible evidence. Code Civ. Proc. § 2017.010. Discovery may relate to any
4
claim or defense of the party seeking discovery or of any other party to the action. Id.
5
Information that will aid a party’s preparation for trial is discoverable. Forthmann v. Boyer
6
(2002) 97 Cal.App.4th 977.
7
The intention of the discovery statutes is to make discovery a “simple, convenient, and
8
inexpensive” means of revealing truth and exposing false claims. Greyhound Corp. v. Superior
9
Court (1961) 56 Cal.2d 355, 376. The statutes are also designed to eliminate surprise. Fairmont
10
Ins. Co. v. Superior Court (2000) 22 Cal.4th 245, 253, n. 2.
11
The documents and information sought by BootUp Ventures by way of the discovery
12
requests that are the subject of this motion are highly relevant and discoverable. The categories
13
of documents and information sought by BootUp Ventures that Gaur, Jinigram and Dial2buy.com
14
continue to refuse to produce are discussed in more detail below.
15
A. GAUR, JINIGRAM AND DIAL2BUY.COM SHOULD BE ORDERED TO
16 PRODUCE ALL DOCUMENTS IN THEIR POSSESSION, CUSTODY AND
17 CONTROL THAT ARE RESPONSIVE TO THE REQUESTS FOR
PRODUCTION THAT ARE THE SUBJECT OF THIS MOTION
18
Code of Civil Procedure section 2031.210(a) provides that a party’s response to a request
19
for production must include an agreement to comply with the demand, a representation of
20
inability to comply with the demand, or objections to all or part of the demand. Code Civ. Proc. §
21
2031.240(a). If a party is unable to comply with a demand, it must state that a diligent search and
22
reasonable inquiry has been made in order to locate the documents that were requested and the
23
reason that the party is unable to comply with the demand. Code Civ. Proc. § 2031.230. If only
24
part of a demand is objectionable, the response must contain an agreement to comply with the
25
remainder of the demand. Code Civ. Proc. § 2031.240(a). If a party objects to a request for
26
production, it must identify with particularity any document to which an objection is being made.
27
Code Civ. Proc. § 2031.240(b)(1). 10
28 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION BY BOOTUP VENTURES, LLC
TO COMPEL FURTHER RESPONSES BY DEFENDANTS TARUN GAUR, JINIGRAM, LLC AND
DIAL2BUY.COM, LLC TO FIRST SETS OF REQUESTS FOR PRODUCTION, SPECIAL INTERROGATORIES,
REQUESTS FOR ADMISSION AND FOR MONETARY SANCTIONS
1
The supplemental responses served by Gaur, Jinigram and Dial2buy.com. Their
2
objections are without merit and do not identify the documents to which an objection is being
3
made with particularity. None of their responses state that a diligent search and a reasonable
4
inquiry was performed to locate the documents requested. Moreover, Gaur, Jinigram and
5
Dial2buy.com failed to produce a privilege log in compliance with Code of Civil Procedure
6
section 2031.240(b)(1). The Court should order them to do so.
7
1. Defendants and Cross-Complainants Should be Ordered to Produce All
8 Documents Concerning the Damages They Claim to Have Suffered as a
9 Result of the Acts Complained of in Their Cross-Complaints or, in the
Alternative, to Amend Their Responses to State That They Have No Such
10 Documents
11 BootUp Ventures requested that the Cross-Complainants produce all documents
12 concerning the damages they are claiming in this matter on each claim alleged in their cross-
13 complaint. The Cross-Complainants have not produced any documents to show that they suffered
14 any damages whatsoever. The Cross-Complainants should be ordered to either produce those
15 documents or amend their responses to state that they conducted a diligent search and a
16 reasonable inquiry to locate those documents and could not do so in compliance with Code of
17 Civil Procedure section 2031.230.
18 2. Defendants Should Be Ordered to Produce All Documents in Their
Possession, Custody and Control Concerning the Damages BootUp
19 Ventures Suffered as a Result of Gaur’s Breach of the MOU
20 BootUp Ventures requested that the Defendants produce several categories of documents
21 to enable it to quantify the amount of damages it suffered as a result of the failure of Defendant
22 Gaur to transfer twenty percent of the equity of Jinigram and Dial2buy.com to BootUp Ventures
23 in breach of paragraphs 4.2 and 4.3 of the MOU. Specifically, BootUp Ventures requested
24 financial statements for both entities, valuations of those entities, documents reflecting their
25 capital structure, communications with actual and potential investors, organizational charts, and
26 communications made by management. Defendants have refused to produce any such documents
27 and should be ordered to do so.
11
28 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION BY BOOTUP VENTURES, LLC
TO COMPEL FURTHER RESPONSES BY DEFENDANTS TARUN GAUR, JINIGRAM, LLC AND
DIAL2BUY.COM, LLC TO FIRST SETS OF REQUESTS FOR PRODUCTION, SPECIAL INTERROGATORIES,
REQUESTS FOR ADMISSION AND FOR MONETARY SANCTIONS
1 3. Defendants Should Be Ordered to Produce All Documents in Their
Possession, Custody and Control Concerning Alter Ego Liability
2
The FAC alleges that Gaur, Jinigram and Dial2buy.com are the alter egos of one another.
3
California courts have developed a two-part test that must be met before the alter ego doctrine
4
will be invoked. First, there must be such a unity of interest and ownership between the
5
corporation and its equitable owner that the separate personalities of the corporation and the
6
shareholder do not in reality exist. Sonora Diamond Corp. v. Superior Court (2000) 83
7
Cal.App.4th 532, 538-539. Second, there must be an inequitable result if the acts are treated as the
8
acts of the corporation alone. Id.
9
The non-exclusive factors that can be used to support the first element include
10
commingling funds, failing to maintain minutes or adequate records, identification of equitable
11
owners with domination and control of two entities, the use of the corporation as a mere shell,
12
instrumentality or conduit for a single venture or the business of an individual, and the failure to
13
adequately capitalize a corporation. Assoc. Vendors, Inc. v. Oakland Meat Co. (1962) 210
14
Cal.App.2d 825, 838-40.
15
BootUp Ventures requested several categories of information concerning the issue of
16
whether the Defendants are the alter egos of one another, including the formation and
17
organizational structure of Jinigram and Dial2buy.com, their investors, meetings of members and
18
management and financial documents reflecting transfers of assets from one Defendant to
19
another. Defendants have refused to produce any documents in response to those requests. They
20
should be ordered to do so.
21
22 4. Defendants Should Be Ordered to Produce Documents Pertaining to
Qikfox Cybersecurity Systems
23
Gaur promised to transfer a twenty percent ownership interest in an entity known as
24
QuikAV to BootUp Ventures pursuant to paragraphs 4.3 and 4.4 the MOU. He never did so. On
25
January 15, 2020, Gaur incorporated an entity known as Qikfox Cybersecurity Systems in
26
Delaware. (Nemecek Decl., ¶ 27, Exhibit M.) Gaur is the Chief Executive Officer, Chief
27
Financial Officer and Secretary of that corporation. 12 Id. at ¶ 28, Exhibit N.
28 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION BY BOOTUP VENTURES, LLC
TO COMPEL FURTHER RESPONSES BY DEFENDANTS TARUN GAUR, JINIGRAM, LLC AND
DIAL2BUY.COM, LLC TO FIRST SETS OF REQUESTS FOR PRODUCTION, SPECIAL INTERROGATORIES,
REQUESTS FOR ADMISSION AND FOR MONETARY SANCTIONS
1
BootUp Ventures requested several categories of documents to show that Qikfox
2
Cybersecurity Systems is the successor in interest to QuickAV, and that Gaur is obligated to
3
transfer 20% of the equity of Qikfox Cybersecurity Systems to BootUp Ventures pursuant to the
4
terms of the MOU. Defendants refused to produce any documents in response to those requests.
5
The Court should order them to do so.
6
5. The Court Should Order Defendants to Produce Documents Concerning
7 Their Claim that BootUp Ventures Entered Into a “Kickback” Agreement
8 With Urloop or Amend Their Responses to Indicate That They Have No
Documents to Support That Claim
9
Paragraph 71 of the FACC alleges that Gaur is somehow entitled to rescission of the
10
MOU because BootUp Ventures “unethically piggyback[ed] the MOU agreement to non-
11
signatories to claim illegal kickbacks from independent contracts,” including a contract between
12
Tringapps and Urloop. BootUp Ventures requested that Gaur produce all documents that support
13
this allegation, but to date he has produced nothing.
14
Cross-Complainants’ allegation concerning “illegal kickbacks” appear to be yet another
15
allegation in their cross-complaint that is without any evidentiary support. Gaur should be
16
ordered to either produce all documents in his possession, custody and control that support this
17
allegation or revise his response to the requests at issue to indicate that he conducted a reasonable
18
inquiry and a diligent search for the documents requested and has no responsive documents.
19
B. GAUR, JINIGRAM AND DIAL2BUY.COM SHOULD BE ORDERED TO
20 PROVIDE FULL AND COMPLETE RESPONSES TO THE SPECIAL
INTERROGATORIES THAT ARE THE SUBJECT OF THIS MOTION
21
Code of Civil Procedure section 2030.210(a) provides that a party’s response to an
22
Preview
5/17/2021 1 DAVID P. NEMECEK, JR. (State Bar No. 194402) david@fortress-law.com 2 THE FORTRESS LAW FIRM, INC. 50 California Street, Suite 1500 3 San Francisco, CA 94111 Telephone: (415) 277-5400 4 Facsimile: (415) 723-7370 Attorneys for Plaintiffs and Cross-Defendants 5 BOOTUP VENTURES, LLC and BOOSTCARE dba BOOTUP WORLD and Cross-Defendants MARCO 6 TEN VAANHOLT and MUKUL AGARWAL 7 SUPERIOR COURT OF THE STATE OF CALIFORNIA 8 COUNTY OF SAN MATEO 9 UNLIMITED JURISDICTION 10 11 BOOTUP VENTURES, LLC and Case No. 18CIV06232 BOOSTCARE dba BOOTUP WORLD, 12 MEMORANDUM OF POINTS AND Plaintiffs, AUTHORITIES IN SUPPORT OF MOTION 13 BY PLAINTIFF AND CROSS-DEFENDANT v. BOOTUP VENTURES, LLC TO COMPEL 14 FURTHER RESPONSES BY DEFENDANTS TARUN GAUR, TRINGAPPS INC., AND CROSS-COMPLAINANTS TARUN 15 JINIGRAM, LLC, DIAL2BUY.COM, LLC, GAUR, JINIGRAM, LLC AND RAVI KUMAR aka SHAWN KUMAR and DIAL2BUY.COM, LLC TO PROVIDE 16 DOES 1-20, FURTHER RESPONSES TO FIRST SETS OF REQUESTS FOR PRODUCTION, SPECIAL 17 Defendants. INTERROGATORIES REQUESTS FOR ADMISSION AND FOR MONETARY 18 SANCTIONS 19 Date: August 30, 2021 Time: 2:00 p.m. 20 Dept.: 23 Judge: Hon V. Raymond Swope 21 Action Filed: November 19, 2018 22 Trial Date: None 23 AND RELATED CROSS-COMPLAINT. 24 25 I. INTRODUCTION 26 This motion concerns the bad faith refusal by Defendants and Cross-Complainants Tarun 27 Gaur, Jinigram, LLC and Dial2buy.com, LLC (collectively “Defendants” or “Cross- 28 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION BY BOOTUP VENTURES, LLC TO COMPEL FURTHER RESPONSES BY TARUN GAUR, JINIGRAM, LLC AND DIAL2BUY.COM, LLC TO FIRST SETS OF REQUESTS FOR PRODUCTION, SPECIAL INTERROGATORIES, REQUESTS FOR ADMISSION AND FOR MONETARY SANCTIONS 1 Complainants”) to respond to almost any discovery served by Plaintiff BootUp Ventures in this 2 matter. The discovery requests that are the subject of this motion were served over a year ago. 3 Defendants served boilerplate objections and refused to provide any substantive responses to 4 those requests for over eight months. The supplemental responses they served were evasive and 5 they have produced no documents in response to most of the requests for production served by 6 BootUp Ventures. 7 A heavy award of monetary sanctions against Defendants and their counsel is warranted. 8 BootUp Ventures respectfully requests that the Court grant this motion, order Defendants to serve 9 responses to the discovery at issue that comply with the Discovery Act within twenty days and 10 sanction Defendants and their counsel in the amount of $21,130.85. 11 II. FACTUAL AND PROCEDURAL BACKGROUND 12 A. THE ALLEGATIONS OF THE FIRST AMENDED COMPLAINT 13 Plaintiff BootUp Ventures serves as an “accelerator” for startups and early stage 14 technology companies. (First Amended Complaint [“FAC”], ¶ 3.) BootUp Ventures provides its 15 clients with office space as well as access to its network of entrepreneurs, investors and 16 innovators and mentoring in order to promote growth and innovation by its clients. Id. BootUp 17 World is an affiliate of BootUp Ventures and serves as the lessor of office space in the 18 commercial office building that serves as the headquarters of BootUp Ventures in Menlo Park, 19 California. Id. at ¶ 4. 20 Defendants Tarun Gaur (“Gaur”) is a co-founder of Defendant Tringapps Inc. 21 (“Tringapps”). Id. at ¶¶ 5, 7. Gaur served as the Chief Executive Officer of Tringapps at the time 22 the agreements that are the subject of this action were made. Id. at ¶ 5. 23 In or around December 2016, BootUp Ventures referred one of its startup clients known 24 as Urloop, Inc. to Tringapps. Id. at ¶ 20. Urloop retained Tringapps to provide software 25 development services. Id. On or about December 19, 2016, Gaur agreed on behalf of Tringapps 26 that Tringapps would pay a referral fee to BootUp Ventures consisting of twenty percent of the 27 2 28 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION BY BOOTUP VENTURES, LLC TO COMPEL FURTHER RESPONSES BY DEFENDANTS TARUN GAUR, JINIGRAM, LLC AND DIAL2BUY.COM, LLC TO FIRST SETS OF REQUESTS FOR PRODUCTION, SPECIAL INTERROGATORIES, REQUESTS FOR ADMISSION AND FOR MONETARY SANCTIONS 1 revenue Tringapps received from Urloop for performing software development services (the 2 “Referral Fee Agreement”). Id. at ¶ 21. 3 On or about November 1, 2016, Gaur entered into a Memorandum of Understanding 4 (MOU) with BootUp Ventures. Id. at ¶ 16, Exhibit A. Pursuant to paragraph 4.1 of the MOU, 5 BootUp Ventures agreed to act as an advisor on the board of directors for certain startup 6 companies that are owned and controlled by Gaur – namely, Jinigram and Dial2Buy.com – as 7 well as a corporation that had not yet been formed known as QuickAV. Id. at ¶ 17, Exhibit A at ¶ 8 4.1. BootUp Ventures agreed to provide advisory services, assist with fundraising and provide 9 discounted office space for Jinigram, Dial2Buy.com and QuickAV pursuant to paragraph 4.1 of 10 the MOU. Id. 11 Pursuant to paragraphs 4.2 and 4.3 of the MOU, Gaur agreed to cause Jinigram, 12 Dial2Buy.com and QuickAV to issue warrants with an expiration date of ten years from the date 13 they were issued granting BootUp Ventures the right to purchase equity representing twenty 14 percent of the fully-diluted capitalization of each of those companies immediately upon the 15 execution of the MOU in exchange for the services to be rendered by BootUp Ventures that are 16 described above. Gaur failed to cause Jinigram and Dial2Buy.com to issue those warrants. Id. at 17 ¶ 18, Exhibit A. 18 Paragraph 4.4 of the MOU provides that Gaur shall cause Jinigram, Dial2Buy.com and 19 QuickAV to issue equity to BootUp Ventures representing twenty percent of the fully-diluted 20 capitalization of those entities that would vest in equal installments every month for twenty-four 21 months beginning on the effective date of the MOU. Id. at ¶ 19, Exhibit A at ¶¶ 4.3 and 4.4. To 22 date, the equity in Jinigram, Dial2Buy.com and QuickAV that is owed to BootUp Ventures 23 pursuant to paragraph 4.4 of the MOU has not been issued. Id. 24 The FAC alleges causes of action for Breach of the Referral Fee Agreement and Breach of 25 the Use License by BootUp Ventures against Tringapps, Gaur and Kumar, Breach of Fiduciary 26 Duty by BootUp Ventures against Gaur, Account Stated, Open Book Account, Unjust Enrichment 27 3 28 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION BY BOOTUP VENTURES, LLC TO COMPEL FURTHER RESPONSES BY DEFENDANTS TARUN GAUR, JINIGRAM, LLC AND DIAL2BUY.COM, LLC TO FIRST SETS OF REQUESTS FOR PRODUCTION, SPECIAL INTERROGATORIES, REQUESTS FOR ADMISSION AND FOR MONETARY SANCTIONS 1 and for Specific Performance to compel transfer of the warrants and equity owed by Jinigram, 2 Dial2buy.com and QuickAV to BootUp Ventures. 3 B. THE ALLEGATIONS OF THE CROSS-COMPLAINT 4 Gaur, Jinigram and Dial2buy.com filed a cross-complaint against BootUp Ventures, 5 BootUp World, Marco ten Vaanholt and Mukul Agarwal on March 7, 2019. Agarwal and ten 6 Vaanholt are the co-founders of BootUp Ventures. (Cross-Compl., ¶¶ 4-5.) 7 The cross-complaint alleges that Gaur is “a highly skilled entrepreneur who has an 8 uncanny ability to create startup companies.” (Cross-Compl., ¶ 26.) The cross-complaint alleges 9 that Gaur “was looking for start up capital and know how” for Jinigram and Dial2buy.com from a 10 startup accelerator and was introduced to BootUp Ventures for that purpose. Id. at ¶ 27. Gaur 11 was “specifically directed” to the website and Facebook page for BootUp Ventures “as proof of 12 [the] credentials” of Agarwal and ten Vaanholt. Id. at ¶ 28, Exhibits A and B. The cross- 13 complaint alleges that the webpage for BootUp Ventures states that it has “accelerated 120+ 14 startups,” “obtained $400,000,000 for those startups” and that the startups “are currently valued at 15 $4 billion.” Id. at ¶ 29. The cross-complaint alleges that all of those claims were false. Id. 16 Birnik “falsely claimed BootUp’s worldwide reach in Europe, Singapore, and East Asia, and that 17 BootUp had talent and resources throughout the world that would accelerate Gaur’s startups’ 18 growth.” Id. at ¶ 30. 19 Gaur was persuaded by the cross-defendants “that they could provide the business savvy, 20 ready personnel at all levels (sales, support administration), and startup accelerator expertise that 21 Gaur lacked.” Id. at ¶ 30. Gaur “did not know … that Agarwal and ten Vannholt saw that they 22 could use Gaur as the Cross-defendants’ tool and entrée into bigger things that they had 23 conceived for themselves.” Id. at ¶ 30. Agarwal and ten Vaanholt “claimed that Bootup has an 24 in-house counsel Capital Procurement are called Bootup Capital,” which was also false. Id. at ¶ 25 31. 26 The cross-complaint further alleges that BootUp Ventures did not perform any of the 27 4 28 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION BY BOOTUP VENTURES, LLC TO COMPEL FURTHER RESPONSES BY DEFENDANTS TARUN GAUR, JINIGRAM, LLC AND DIAL2BUY.COM, LLC TO FIRST SETS OF REQUESTS FOR PRODUCTION, SPECIAL INTERROGATORIES, REQUESTS FOR ADMISSION AND FOR MONETARY SANCTIONS 1 services it promised to perform pursuant to paragraph 4.1 of the MOU, including serving as 2 advisors on the board of directors of Jinigram and Dial2buy.com, assisting in developing a 3 product and engineering strategy, assisting with the cultivation of business, market or industry 4 trend information, providing “counsel,” making introductions to eCommerce experts, building 5 product roadmaps, making introductions to venture capitalists, building “governance framework,” 6 developing cost structures, assisting Gaur with finding funding, helping with “team building” or 7 providing office space. Id. at ¶ 33. 8 The cross-complaint alleges causes of action for “restitution based on rescission of the 9 MOU,” declaratory relief, fraud in the inducement, promissory fraud and three causes of action 10 for breach of contract. Cross-Complainants’ third cause of action for fraud in the inducement 11 alleges that BootUp Ventures made misrepresentations concerning its qualifications, capabilities 12 and expertise in order to fraudulently induce Gaur to enter into the MOU and that the Cross- 13 Complainants suffered in excess of $1 million in damages as a result. Cross-Complainants’ 14 fourth cause of action for promissory fraud alleges that BootUp Ventures made 15 misrepresentations to Gaur concerning its ability to perform the consulting services that are listed 16 in paragraph 4.1 of the MOU and that the Cross-Complainants suffered in excess of $1 million in 17 damages as a result. 18 Cross-Complainants’ fifth cause of action for breach of contract alleges that the Cross- 19 Defendants breached the MOU by failing to perform the consulting services that are listed in 20 section 4.1 of the MOU and that the Cross-Complainants suffered in excess of $1 million in 21 damages as a result. Cross-Complainants’ sixth cause of action for breach of contract in the 22 Cross-Complaint alleges that BootUp Ventures breached paragraph 5.1 of the MOU and that the 23 Cross-Complainants suffered in excess of $1 million in damages as a result. Cross- 24 Complainants’ seventh cause of action alleges that the Cross-Defendants breached paragraph 6 of 25 the MOU and that the Cross-Complainants suffered in excess of $1 million in damages as a result. 26 27 5 28 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION BY BOOTUP VENTURES, LLC TO COMPEL FURTHER RESPONSES BY DEFENDANTS TARUN GAUR, JINIGRAM, LLC AND DIAL2BUY.COM, LLC TO FIRST SETS OF REQUESTS FOR PRODUCTION, SPECIAL INTERROGATORIES, REQUESTS FOR ADMISSION AND FOR MONETARY SANCTIONS 1 C. BOOTUP VENTURES PROPOUNDS REQUESTS FOR PRODUCTION, SPECIAL INTERROGATORIES, FORM INTERROGATORIES AND 2 REQUESTS FOR ADMISSION UPON DEFENDANTS 3 BootUp Ventures served its First Sets of Requests for Production, Special Interrogatories, 4 Form Interrogatories and Requests for Admission upon Defendants Gaur, Jinigram and 5 Dial2buy.com on April 29, 2020. (Declaration of David P. Nemecek, Jr. [“Nemecek Decl.”], ¶¶ 6 2-3, Exhibits A through M.) BootUp Ventures’ First Set of Requests for Production seek 7 documents concerning the relevant agreements in this matter (specifically, the MOU and the 8 9 Referral Fee Agreement), documents concerning the amount of damages BootUp Ventures 10 suffered as a result of Gaur’s breach of the MOU, documents concerning the issue of whether 11 Defendant Gaur is the alter ego of Jinigram and Dial2buy.com, documents pertaining to Urloop, 12 BootUp Ventures, Marco ten Vaanholt, Mukul Agarwal and Boostcare, documents concerning 13 the allegations contained in the Cross-Complaint (including documents supporting Defendants’ 14 claims for damages) and documents identified by Defendants in their interrogatory responses. 15 Id., Exhibits A, B and C. 16 17 BootUp Ventures’ First Set of Special Interrogatories consists of standard contention 18 interrogatories that seek all facts concerning whether Defendants concede that Gaur is the alter 19 ego of Jinigram and Dial2buy.com, whether Defendants claim that BootUp Ventures breached the 20 MOU, all facts supporting those contentions, all persons with knowledge of those contentions, all 21 documents supporting those contentions and the identity of persons who have those documents. 22 Id. at Exhibits D, F and H. The special interrogatories propounded by BootUp Ventures also seek 23 24 information concerning the location of bank accounts maintained by Defendants, including the 25 financial institutions where those accounts are maintained and the identification of persons who 26 assisted with the preparation of Defendants’ financial statements. Id. The special interrogatories 27 6 28 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION BY BOOTUP VENTURES, LLC TO COMPEL FURTHER RESPONSES BY DEFENDANTS TARUN GAUR, JINIGRAM, LLC AND DIAL2BUY.COM, LLC TO FIRST SETS OF REQUESTS FOR PRODUCTION, SPECIAL INTERROGATORIES, REQUESTS FOR ADMISSION AND FOR MONETARY SANCTIONS 1 also request that Defendants provide detailed calculations of the amount of damages they claim to 2 have suffered as a result of the acts of each Cross-Defendant and the amount of damages they 3 allegedly suffered on their claims for breach of contract and fraud that are alleged in the Cross- 4 Complaint and identify all documents that support those calculations. Id. 5 BootUp Ventures’ Requests for Admission request that Defendants admit that the Cross- 6 7 Complainants suffered no damages as a result of any acts allegedly taken by the Cross- 8 Defendants that are described in the Cross-Complaint and that the Cross-Defendants are not the 9 alter egos of one another. Id. at Exhibits J, K and M. 10 D. DEFENDANTS SERVE NOTHING OTHER THAN BOILERPLATE 11 OBJECTIONS CONTAINED IN UNVERIFIED RESPONSES TO THE DISCOVERY SERVED BY BOOTUP VENTURES AND REFUSE TO 12 PROVIDE AMENDED RESPONSES THAT COMPLY WITH THE DISCOVERY ACT OR PRODUCE ANY DOCUMENTS 13 Defendants’ responses to the discovery requests served by BootUp Ventures were due on 14 15 June 1, 2020. On May 11, 2020, Defendants requested an extension of time to respond to the 16 requests to July 2, 2020. Id. at ¶ 5, Exhibit N. Counsel for BootUp Ventures granted that request 17 as a professional courtesy and stated that “I am fine with a 30 day extension, although I am 18 granting it with the expectation that your clients will serve substantive responses to the discovery 19 requests that were served and not boilerplate objections.” Id. 20 On July 2, 2020, Defendants and Cross-Complainants served nothing but boilerplate 21 22 objections to the discovery requests that are the subject of this motion. Id. at ¶ 6, Exhibits O 23 through W. None of the responses served by Defendants are verified. Id. at ¶ 9. Defendants and 24 Cross-Complainants did not produce any documents in response to the Requests for Production 25 served by BootUp Ventures and did not serve a privilege log. Id. at ¶ 6. 26 On August 13, 2020, counsel for BootUp Ventures sent a letter to counsel for Defendants 27 7 28 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION BY BOOTUP VENTURES, LLC TO COMPEL FURTHER RESPONSES BY DEFENDANTS TARUN GAUR, JINIGRAM, LLC AND DIAL2BUY.COM, LLC TO FIRST SETS OF REQUESTS FOR PRODUCTION, SPECIAL INTERROGATORIES, REQUESTS FOR ADMISSION AND FOR MONETARY SANCTIONS 1 and Cross-Complainants in which he demanded that his clients serve amended responses to the 2 discovery requests at issue that comply with the Code of Civil Procedure. Id. at ¶ 10, Exhibit X. 3 Counsel for Defendants and Cross-Complainants responded on August 17, 2020 and claimed that 4 that his clients are entitled to assert boilerplate objections to the discovery at issue and refuse to 5 provide any substantive responses and produce any documents in this matter. Id. at ¶ 12, Exhibit 6 7 Y. 8 E. BOOTUP VENTURES FILES A MOTION TO COMPEL FURTHER RESPONSES TO ITS FIRST SETS OF WRITTEN DISCOVERY 9 REQUESTS, WHICH THIS COURT DENIES WITHOUT PREJUDICE 10 On August 18, 2020, BootUp Ventures filed a motion to compel the Defendants and 11 Cross-Complainants to provide further responses to its First Sets of Requests for Production, 12 Special Interrogatories, Form Interrogatories and Requests for Admission. On October 2, 2020, 13 this Court issued an order denying that motion without prejudice for failure to hold an Informal 14 15 Discovery Conference as required by Emergency Local Rule 3-103 and this Court’s COVID-19 16 Emergency Order before filing the motion. (Exhibit 1 to Notice of Lodgment of Exhibits.) This 17 Court ruled that BootUp Ventures may renotice its motion to compel after the conclusion of the 18 Informal Discovery Conference. Id. 19 F. CROSS-DEFENDANTS FILE A FIRST AMENDED CROSS-COMPLAINT 20 ON THE EVE OF TRIAL 21 On August 14, 2020, the Cross-Complainants filed a motion for leave to file a First 22 Amended Cross-Complaint. On October 14, 2020, this Court granted that motion. 23 The FACC realleges and repeats nearly all of the allegations that are contained in the 24 cross-complaint. The five causes of action for fraud and breach of contract that are alleged in the 25 cross-complaint are also alleged in the FACC. 26 On April 9, 2021, the Cross-Complainants filed a Second Amended Cross-Complaint (the 27 “SACC”). The five causes of action for fraud and breach of contract that are alleged in the cross- 8 28 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION BY BOOTUP VENTURES, LLC TO COMPEL FURTHER RESPONSES BY DEFENDANTS TARUN GAUR, JINIGRAM, LLC AND DIAL2BUY.COM, LLC TO FIRST SETS OF REQUESTS FOR PRODUCTION, SPECIAL INTERROGATORIES, REQUESTS FOR ADMISSION AND FOR MONETARY SANCTIONS 1 complaint are also alleged in the SACC. 2 G. DEFENDANTS AND CROSS-COMPLAINANTS SERVE 3 SUPPLEMENTAL RESPONSES TO THE DISCOVERY REQUESTS AT 4 ISSUE THAT ARE INCOMPLETE AND EVASIVE AND PRODUCE ALMOST NO DOCUMENTS IN RESPONSE TO THE REQUESTS FOR 5 PRODUCTION PROPOUNDED BY BOOTUP VENTURES 6 Gaur, Jinigram and Dial2buy.com served supplemental responses to the requests for 7 production, special interrogatories and requests for admission that are the subject of this motion 8 on December 30, 2020. (Nemecek Decl., ¶ 17, Exhibits BB through JJ.) Gaur verified all of the 9 responses served by Jinigram and Dial2buy.com as the Managing Member of each entity. Id. 10 The only documents produced by Gaur, Jinigram and Dial2buy.com to date consist of 11 exhibits to the Cross-Complaint and First Amended Cross-Complaint, a screenshot of the 12 company profile for BootUp Ventures on the Bloomberg website, a screenshot of the current 13 LinkedIn page and the website for BootUp World, a screenshot of a website concerning an event 14 that was held at BootUp Ventures on March 17, 2017, a screenshot for the website that was 15 previously maintained by BootUp Ventures, documents filed with the California Secretary of 16 State by BootUp Ventures, Boostcare, Tracxn, Inc., emails between Tarun Gaur and contacts who 17 he met via BootUp Ventures as well as emails between Gaur and representatives of BootUp 18 Ventures. Id. at ¶ 18. Gaur, Jinigram and Dial2buy.com failed to produce any documents that 19 support their claims for damages that are alleged in their Cross-Complaint and have not produced 20 any documents concerning their finances (including transfers of assets between them and 21 payments of debts by one person or entity for another), as well as the formation and 22 organizational structure of Jinigram and Dial2buy.com, their investors, meetings of members and 23 management and valuations performed of both entities. Id. at ¶ 19. 24 III. THE COURT SHOULD GRANT THIS MOTION AND COMPEL DEFENDANTS AND CROSS-COMPLAINANTS TO PROVIDE RESPONSES TO THE 25 DISCOVERY SERVED BY BOOTUP VENTURES THAT COMPLY WITH THE CODE OF CIVIL PROCEDURE AND PRODUCE ALL DOCUMENTS THAT 26 ARE RESPONSIVE TO THE REQUESTS FOR PRODUCTION 27 A party may obtain discovery regarding any matter that is not privileged that is relevant to 9 28 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION BY BOOTUP VENTURES, LLC TO COMPEL FURTHER RESPONSES BY DEFENDANTS TARUN GAUR, JINIGRAM, LLC AND DIAL2BUY.COM, LLC TO FIRST SETS OF REQUESTS FOR PRODUCTION, SPECIAL INTERROGATORIES, REQUESTS FOR ADMISSION AND FOR MONETARY SANCTIONS 1 the subject matter of the pending action or to the determination of any motion made in that action 2 if the matter is either itself admissible or appears to be reasonably calculated to lead to the 3 discovery of admissible evidence. Code Civ. Proc. § 2017.010. Discovery may relate to any 4 claim or defense of the party seeking discovery or of any other party to the action. Id. 5 Information that will aid a party’s preparation for trial is discoverable. Forthmann v. Boyer 6 (2002) 97 Cal.App.4th 977. 7 The intention of the discovery statutes is to make discovery a “simple, convenient, and 8 inexpensive” means of revealing truth and exposing false claims. Greyhound Corp. v. Superior 9 Court (1961) 56 Cal.2d 355, 376. The statutes are also designed to eliminate surprise. Fairmont 10 Ins. Co. v. Superior Court (2000) 22 Cal.4th 245, 253, n. 2. 11 The documents and information sought by BootUp Ventures by way of the discovery 12 requests that are the subject of this motion are highly relevant and discoverable. The categories 13 of documents and information sought by BootUp Ventures that Gaur, Jinigram and Dial2buy.com 14 continue to refuse to produce are discussed in more detail below. 15 A. GAUR, JINIGRAM AND DIAL2BUY.COM SHOULD BE ORDERED TO 16 PRODUCE ALL DOCUMENTS IN THEIR POSSESSION, CUSTODY AND 17 CONTROL THAT ARE RESPONSIVE TO THE REQUESTS FOR PRODUCTION THAT ARE THE SUBJECT OF THIS MOTION 18 Code of Civil Procedure section 2031.210(a) provides that a party’s response to a request 19 for production must include an agreement to comply with the demand, a representation of 20 inability to comply with the demand, or objections to all or part of the demand. Code Civ. Proc. § 21 2031.240(a). If a party is unable to comply with a demand, it must state that a diligent search and 22 reasonable inquiry has been made in order to locate the documents that were requested and the 23 reason that the party is unable to comply with the demand. Code Civ. Proc. § 2031.230. If only 24 part of a demand is objectionable, the response must contain an agreement to comply with the 25 remainder of the demand. Code Civ. Proc. § 2031.240(a). If a party objects to a request for 26 production, it must identify with particularity any document to which an objection is being made. 27 Code Civ. Proc. § 2031.240(b)(1). 10 28 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION BY BOOTUP VENTURES, LLC TO COMPEL FURTHER RESPONSES BY DEFENDANTS TARUN GAUR, JINIGRAM, LLC AND DIAL2BUY.COM, LLC TO FIRST SETS OF REQUESTS FOR PRODUCTION, SPECIAL INTERROGATORIES, REQUESTS FOR ADMISSION AND FOR MONETARY SANCTIONS 1 The supplemental responses served by Gaur, Jinigram and Dial2buy.com. Their 2 objections are without merit and do not identify the documents to which an objection is being 3 made with particularity. None of their responses state that a diligent search and a reasonable 4 inquiry was performed to locate the documents requested. Moreover, Gaur, Jinigram and 5 Dial2buy.com failed to produce a privilege log in compliance with Code of Civil Procedure 6 section 2031.240(b)(1). The Court should order them to do so. 7 1. Defendants and Cross-Complainants Should be Ordered to Produce All 8 Documents Concerning the Damages They Claim to Have Suffered as a 9 Result of the Acts Complained of in Their Cross-Complaints or, in the Alternative, to Amend Their Responses to State That They Have No Such 10 Documents 11 BootUp Ventures requested that the Cross-Complainants produce all documents 12 concerning the damages they are claiming in this matter on each claim alleged in their cross- 13 complaint. The Cross-Complainants have not produced any documents to show that they suffered 14 any damages whatsoever. The Cross-Complainants should be ordered to either produce those 15 documents or amend their responses to state that they conducted a diligent search and a 16 reasonable inquiry to locate those documents and could not do so in compliance with Code of 17 Civil Procedure section 2031.230. 18 2. Defendants Should Be Ordered to Produce All Documents in Their Possession, Custody and Control Concerning the Damages BootUp 19 Ventures Suffered as a Result of Gaur’s Breach of the MOU 20 BootUp Ventures requested that the Defendants produce several categories of documents 21 to enable it to quantify the amount of damages it suffered as a result of the failure of Defendant 22 Gaur to transfer twenty percent of the equity of Jinigram and Dial2buy.com to BootUp Ventures 23 in breach of paragraphs 4.2 and 4.3 of the MOU. Specifically, BootUp Ventures requested 24 financial statements for both entities, valuations of those entities, documents reflecting their 25 capital structure, communications with actual and potential investors, organizational charts, and 26 communications made by management. Defendants have refused to produce any such documents 27 and should be ordered to do so. 11 28 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION BY BOOTUP VENTURES, LLC TO COMPEL FURTHER RESPONSES BY DEFENDANTS TARUN GAUR, JINIGRAM, LLC AND DIAL2BUY.COM, LLC TO FIRST SETS OF REQUESTS FOR PRODUCTION, SPECIAL INTERROGATORIES, REQUESTS FOR ADMISSION AND FOR MONETARY SANCTIONS 1 3. Defendants Should Be Ordered to Produce All Documents in Their Possession, Custody and Control Concerning Alter Ego Liability 2 The FAC alleges that Gaur, Jinigram and Dial2buy.com are the alter egos of one another. 3 California courts have developed a two-part test that must be met before the alter ego doctrine 4 will be invoked. First, there must be such a unity of interest and ownership between the 5 corporation and its equitable owner that the separate personalities of the corporation and the 6 shareholder do not in reality exist. Sonora Diamond Corp. v. Superior Court (2000) 83 7 Cal.App.4th 532, 538-539. Second, there must be an inequitable result if the acts are treated as the 8 acts of the corporation alone. Id. 9 The non-exclusive factors that can be used to support the first element include 10 commingling funds, failing to maintain minutes or adequate records, identification of equitable 11 owners with domination and control of two entities, the use of the corporation as a mere shell, 12 instrumentality or conduit for a single venture or the business of an individual, and the failure to 13 adequately capitalize a corporation. Assoc. Vendors, Inc. v. Oakland Meat Co. (1962) 210 14 Cal.App.2d 825, 838-40. 15 BootUp Ventures requested several categories of information concerning the issue of 16 whether the Defendants are the alter egos of one another, including the formation and 17 organizational structure of Jinigram and Dial2buy.com, their investors, meetings of members and 18 management and financial documents reflecting transfers of assets from one Defendant to 19 another. Defendants have refused to produce any documents in response to those requests. They 20 should be ordered to do so. 21 22 4. Defendants Should Be Ordered to Produce Documents Pertaining to Qikfox Cybersecurity Systems 23 Gaur promised to transfer a twenty percent ownership interest in an entity known as 24 QuikAV to BootUp Ventures pursuant to paragraphs 4.3 and 4.4 the MOU. He never did so. On 25 January 15, 2020, Gaur incorporated an entity known as Qikfox Cybersecurity Systems in 26 Delaware. (Nemecek Decl., ¶ 27, Exhibit M.) Gaur is the Chief Executive Officer, Chief 27 Financial Officer and Secretary of that corporation. 12 Id. at ¶ 28, Exhibit N. 28 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION BY BOOTUP VENTURES, LLC TO COMPEL FURTHER RESPONSES BY DEFENDANTS TARUN GAUR, JINIGRAM, LLC AND DIAL2BUY.COM, LLC TO FIRST SETS OF REQUESTS FOR PRODUCTION, SPECIAL INTERROGATORIES, REQUESTS FOR ADMISSION AND FOR MONETARY SANCTIONS 1 BootUp Ventures requested several categories of documents to show that Qikfox 2 Cybersecurity Systems is the successor in interest to QuickAV, and that Gaur is obligated to 3 transfer 20% of the equity of Qikfox Cybersecurity Systems to BootUp Ventures pursuant to the 4 terms of the MOU. Defendants refused to produce any documents in response to those requests. 5 The Court should order them to do so. 6 5. The Court Should Order Defendants to Produce Documents Concerning 7 Their Claim that BootUp Ventures Entered Into a “Kickback” Agreement 8 With Urloop or Amend Their Responses to Indicate That They Have No Documents to Support That Claim 9 Paragraph 71 of the FACC alleges that Gaur is somehow entitled to rescission of the 10 MOU because BootUp Ventures “unethically piggyback[ed] the MOU agreement to non- 11 signatories to claim illegal kickbacks from independent contracts,” including a contract between 12 Tringapps and Urloop. BootUp Ventures requested that Gaur produce all documents that support 13 this allegation, but to date he has produced nothing. 14 Cross-Complainants’ allegation concerning “illegal kickbacks” appear to be yet another 15 allegation in their cross-complaint that is without any evidentiary support. Gaur should be 16 ordered to either produce all documents in his possession, custody and control that support this 17 allegation or revise his response to the requests at issue to indicate that he conducted a reasonable 18 inquiry and a diligent search for the documents requested and has no responsive documents. 19 B. GAUR, JINIGRAM AND DIAL2BUY.COM SHOULD BE ORDERED TO 20 PROVIDE FULL AND COMPLETE RESPONSES TO THE SPECIAL INTERROGATORIES THAT ARE THE SUBJECT OF THIS MOTION 21 Code of Civil Procedure section 2030.210(a) provides that a party’s response to an 22