Preview
Seo
NC
NbN YY YN NR NY YD
CN
20CV368229
Santa Clara — Civil
TERRY J. MOLLICA, ESQ. (SBN 139816)
MOLLICA LAW
560 First Street, Suite B201
Benicia, CA. 94510
Tele: (925) 239-2380
Fax: (925)239-2382
E-mail: ttm@caattnys.com
GLEN H. OLIVES (SBN 057942)
Law Office of Glen H. Olives
4701 Soquel Drive, Suite E
Soquel, CA. 95073
Telephone: (408) 505-6889
E-mail: gho57942@gmail.com
Attomeys for plaintiff PACIFIC OFFICE
DESIGNS, INC., a California Corporation
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SANTA CLARA
UNLIMITED JURISDICATION
PACIFIC OFFICE DESIGNS, INC., a California
Corporation,
Plaintiff,
Ve
SPOT ON CONSULTING GROUP, a Professional
Accountancy Corporation; JONATHAN RONALD
LADDY; EXEMPLIS, LLC; a California Limited
Liability Company; PAUL DE VRIES, KELLY
PAULINE PLAYLE; NANCY LOPEZ, and
DOES 1-150, Inclusive,
Defendants.
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
A. Floresca
Electronically Filed
by Superior Court of CA,
County of Santa Clara,
on 4/8/2021 3:19 PM
Reviewed By: A. Floresca
Case #20CV368229
Envelope: 6204402
Case No.: 20CV368229
MEMORANDUM OF POINTS AND
AUTHORITIES IN SUPPORT OF MOTION
TO COMPEL FURTHER RESPONSES TO
FIRST DEMAND FOR INSPECTION OF
DOCUMENTS AND FOR SANCTIONS
Hearing: 6-3-21
Date:
Time: 9:00 a.m.
Dept. “FBA 20
, 2021
MEMORANDUM OF POINTS AND
AUTHORITIES IN SUPPORT OF MOTION
TO COMPEL FURTHER RESPONSES TO
FIRST DEMAND FOR INSPECTION OF
DOCUMENTS,Ce Co ye
NO CO)
Yb oN Ye NY YN NN VY
OO ee
I. INTRODUCTION
Plaintiff PACIFIC OFFICE DESIGNS, INC. (hereinafter referred to as “Plaintiff” or
“PACIFIC OFFICE”) hereby moves to compel a further response to Request for Production No.
7 of Plaintiffs’ First Requests for Production of Documents (“First Inspection Demand”) to
defendants EXEMPLIS, LLC, PAUL DE VRIES, and NANCY LOPEZ (hereinafter collectively
referred to as “the Exemplis Defendants”) pursuant to Code of Civil Procedure Sections
2031.310, , et seg., and Cal. Rules of Court, Rule 3.1345(a)(5).
Request for Production No. 7 seeks production of all documents “preserved” by the
Exemplis Defendants in response to Plaintiff's pre-litigation demand that documents and things
pertaining to the underlying diversion of $281,571 in payments made by Plaintiff to the
Exemplis Defendants be preserved. This Request plainly seeks relevant and discoverable
documents, but the Exemplis Defendants’ Response to Request No. 7 states only boilerplate and
meritless objections. Despite literally months of attempted “meet and confer” efforts by
Plaintiff, the Exemplis Defendants refuse to amend their Response to state whether responsive
records “exist” or ever existed or whether the Exemplis Defendants will allow their production
and inspection.
Sadly, this dispute is part of a much broader pattern of conduct by the Exemplis
Defendants to obstruct legitimate discovery, as explained more fully in the accompanying
motion to compel compliance and supporting declarations. Accordingly, Plaintiff requests the
imposition of monetary sanctions be imposed against the Exemplis Defendants and opposing
counsel, jointly and severally, in the amount of $3,950, representing the reasonable costs
incurred by the Plaintiff in making this Motion, and in attempting good faith meet and confer
efforts that were turned away.
Il. STATEMENT OF FACTS
A. Factual Background
Almost six months before this action was initiated, Plaintiff's counsel initiated an
investigation into exactly what had occurred to divert PACIFIC OFFICE’s $281,571 payment
toward an account payable owed to EXEMPLIS, LLC. (Mollica Decl., 42) On February 7,
MEMORANDUM OF POINTS AND
AUTHORITIES IN SUPPORT OF MOTION
TO COMPEL FURTHER RESPONSES TO
FIRST DEMAND FOR INSPECTION OF
-f- DOCUMENTSCe Co ye
NO CO)
Yb oN Ye NY YN NN VY
OO ee
2020, Plaintiffs counsel issued a letter to representatives of both the EXEMPLIS Defendants
and the SPOT ON Defendants (Mollica Decl., (3 and Exh. A) The letter demanded that each of
the defendants “immediately take affirmative steps to protect and preserve any and all records,
including purchase orders, invoices, receipts, electronic transfers, emails, texts, and any
communications which in any way related to the aforementioned payments as well as to protect
and preserve all of the electronic data and documents described hereafter.”
In response to the letter, EXEMPLIS’ Larry Rivard referred Plaintiff's counsel to
Exemplis General Counsel, Peter Ching, Esq. (Mollica Decl., 4) Mr. Mollica and Mr. Ching
spoke on March 18, 2020. (Mollica Decl., 95) Among other things, Mr. Mollica inquired as to
whether records had been preserved in response to the February 17, 2020 demand and Mr. Ching
advised that they had been preserved. (Mollica Decl., 5) Mr. Mollica asked for permission to
interview certain EXEMPLIS employees, including defendant NANCY LOPEZ, but Mr. Ching
«“
indicated that as a preliminary matter, he would inquire as to EXEMPLIS’s “position” on the
incidents in question and advise Mr. Mollica within a week or so. (Mollica Decl., 5) When
Mr. Mollica did not hear back from Mr. Ching, on March 27, 2020, Mr. Mollica followed up
with an email requesting the status. (Mollica Decl., §6 and Exh. B) Thereafter, Mr. Ching
became unresponsive and would not cooperate in the investigation. (Mollica Decl., 47) A few
weeks later, defendant LOPEZ, who had been EXEMPLIS’ account manager in charge of the
Plaintiff's account, left the company for unexplained reasons. (Mollica Decl., J8)
On November 23, 2020, Plaintiff propounded the First Inspection Demand upon the
Exemplis Defendants. (Mollica Decl., {9 and Exh. C) Among the requests was Request No. 7,
which seeks the production of documents that were “preserved and protected” in response to
Plaintiff's 2/7/20 demand to preserve evidence.
After requesting and being granted an extension of time to respond due to the intervening
holidays, on January 19, 2021, Exemplis provided their written response to the First Inspection
Demand. (Mollica Decl., 410 and Exh. D) The original Response was deemed inadequate by
Plaintiffs’ counsel for a variety of reasons, including the fact that no documents were produced at
the time despite agreements to do so. (Mollica Decl., 11)
MEMORANDUM OF POINTS AND
AUTHORITIES IN SUPPORT OF MOTION
TO COMPEL FURTHER RESPONSES TO
FIRST DEMAND FOR INSPECTION OF
-2- DOCUMENTSCe Co ye
NO CO)
Yb oN Ye NY YN NN VY
OO ee
On February 2, 2021, Plaintiffs’ counsel sent a “meet and confer” letter to counsel for the
Exemplis Defendants. (Mollica Decl., {11 and Exh. E) Among other things, the letter states that
the Response to Request No. 7 is “incomplete” and the objections “meritless and requests that
the Exemplis Defendants amend their response to state whether responsive documents “exist,
existed, or were lost or destroyed” and, if asserted to be privileged, that a Privilege Log be
provided.
Over a month later, on March 5, 2021, counsel for the Exemplis Defendants responded to
the “meet and confer” letter. (Mollica Decl., §15 and Exh. H) Among other things, she asserted
that “Exemplis and Lopez will not agree to amend their response to RFP No. 7 at this time.”
During the numerous and. lengthy negotiations between the parties concerning Request No. 7
and other discovery disputes, counsel for the Exemplis Defendants steadfastly refused to amend its
response to Request No. 7 or to provide a Privilege Log. (Mollica Decl., 15) Although counsel
for the Exemplis Defendants did agree to amend other responses, they remain incalcitrant
regarding Request No.7 or provide a Privilege Log. (Mollica Decl., 415)
iil. LEGAL ARGUMENTS
One party may obtain discovery from another pursuant to the Rules of Civil Procedure
regarding any matter not privileged that is relevant to the subject matter involved in the pending
action if the matter is itself admissible or appears reasonably calculated to lead to the discovery
of admissible evidence. (Code Cov. Proc. §2017.010.) The scope of discovery is broad, and
discovery rules are applied liberally in favor of discovery. (Cruz v. Super. Ct. (2004) 121
Cal.App.4th 646.) Each party is entitled to issue discovery requests on each other party to an
action. (Code Civ. Proc. §§ 2030.030 (a)(1)-(2), 2031.010 (b), 20330.010)
Motions to compel ordinarily should be filed separately, but they may be joined where
the requests are so interrelated as to make separate motions wholly inefficient (e.g., where
several defendants have all failed to answer the same set of interrogatories). (See generally The
Rutter Group California Practice Guide: Civil Procedure Before Trial, § 8:1139) Failure to
respond to discovery requests, evasive responses, and objections lacking substantial justification
are “misuses of the discovery process” and the propounding party’s remedy under most
MEMORANDUM OF POINTS AND
AUTHORITIES IN SUPPORT OF MOTION
TO COMPEL FURTHER RESPONSES TO
FIRST DEMAND FOR INSPECTION OF
3. DOCUMENTSCe Co ye
NO CO)
Yb oN Ye NY YN NN VY
OO ee
discovery methods is to file a motion to compel and seek monetary sanctions pursuant to the
appropriate statutory provisions. (Code Civ. Proc. § 2023.010) A motion to compel lies where
the party to whom the interrogatories or requests were directed gave responses deemed improper
by the propounding party. (Code Civ. Proc. §§ 2030.300, 2033.290; see Best Products, Inc. v.
Superior Court (2004) 119 Cal.App.4th 1181, 1189-90 (motion to compel proper to challenge
“boilerplate” responses)) Prior to bringing a motion, the movant must have engaged in a
“reasonable and good faith attempt” to resolve the issues informally. (Code Civ. Proc. §§
2016.040, 2030.300 (b); see Clement v. Alegre (2009) 177 Cal.App.4th 1277, 1294)
B. Legal Requirements For Responses to Requests for Admission
The Exemplis Defendants’ response only provided a host of boilerplate objections that
are without merit and they have refused to provide a statement of compliance or inability to
comply, as required by Code of Civil Procedure Sections 2031.210, 2031.220, or 2031.230 and
fail to provide sufficient information to justify its objections, as required by Code of Civil
Procedure Section 2031.240. The boilerplate objections are plainly meritless and the Exemplis
Defendants have failed or refused to provide the required privilege log.
Code of Civil Procedure Section 2031.210 provides that a party to whom an inspection
demand has been directed must, if able to respond, provide a written “statement that the party
will comply with the particular demand for inspection, copying, testing, or sampling by the date
set for the inspection, copying, testing, or sampling pursuant to paragraph (2) of subdivision (c)
of Section 203 1.030 and any related activities.” The statement of compliance must include “a
statement that the party to whom a demand for inspection, copying, testing, or sampling has been
directed will comply with the particular demand shall state that the production, inspection,
copying, testing, or sampling, and related activity demanded, will be allowed either in whole or
in part, and that all documents or things in the demanded category that are in the possession,
custody, or control of that party and to which no objection is being made will be included in the
production.” (Code of Civil Procedure Section 2031.220) If the respondent is unable to comply
with the demand, the response must include “a representation of inability to comply with the
particular demand for inspection” and “shall affirm that a diligent search and a reasonable
MEMORANDUM OF POINTS AND
AUTHORITIES IN SUPPORT OF MOTION
TO COMPEL FURTHER RESPONSES TO
FIRST DEMAND FOR INSPECTION OF
-4- DOCUMENTSCe Co ye
NO CO)
Yb oN Ye NY YN NN VY
OO ee
inquiry has been made in an effort to comply with that demand.” (Code of Civil Procedure
Section 2031.230) “This statement shall also specify whether the inability to comply is because
the particular item or category has never existed, has been destroyed, has been lost, misplaced, or
stolen, or has never been, or is no longer, in the possession, custody, or control of the responding
party.” (/d.) “The statement shall set forth the name and address of any natural person or
organization known or believed by that party to have possession, custody, or control of that item
or category of item.” (/bid.)
On the other hand, if the respondent states only objections to the request, the specific
responsive documents requested and the basis for the objection and, if the objection is based
upon the attorney-client privilege, a privilege log must be provided. Code of Civil Procedure
Section 2031.240 provides:
(b) If the responding party objects to the demand for inspection, copying, testing,
or sampling of an item or category of item, the response shall do both of the
following:
(1) Identify with particularity any document, tangible thing, land, or
electronically stored information falling within any category of item in the
demand to which an objection is being made.
(2) Set forth clearly the extent of, and the specific ground for, the
objection. If an objection is based on a claim of privilege, the particular privilege
invoked shall be stated. If an objection is based on a claim that the information
sought is protected work product under Chapter 4 (commencing with Section
2018.010 ), that claim shall be expressly asserted.
(c)(1) Ifan objection is based on a claim of privilege or a claim that the
information sought is protected work product, the response shall provide
sufficient factual information for other parties to evaluate the merits of that claim,
including, if necessary, a privilege log.
(Code of Civil Procedure Section 2031.240 (emphasis added)
C. Exemplis Defendants’ Responses Are Incomplete and Noncompliant
Exemplis Defendants’ Response to the Request is incomplete because it does not contain
any statement of compliance or inability to comply, as required by Code of Civil Procedure
Sections 2031.210, 2031.220, or 2031.230.
MEMORANDUM OF POINTS AND
AUTHORITIES IN SUPPORT OF MOTION
TO COMPEL FURTHER RESPONSES TO
FIRST DEMAND FOR INSPECTION OF
5. DOCUMENTSCe Co ye
NO CO)
Yb oN Ye NY YN NN VY
OO ee
D. Exemplis Defendants’ Objections Are Inadequate and Meritless
The Exemplis Defendants’ boilerplate objections assert that Request No. 7 is “vague and
9 «6,
ambiguous,” “overbroad as to time and scope,” and “not reasonably calculated to lead to the
discovery of admissible evidence.” However, on its face, Request No. 7 is precise and specific
as to the “preserved” documents in response to the 2/17/20 letter. Clearly, these objections are
without any merit whatsoever.
The Exemplis Defendants also object that Request No. 7 is “unduly burdensome and.
harassing, particularly because the case is not yet at issue and Exemplis and Lopez contend the
claims against Lopez must be dismissed on demurrer.” Yet, the Exemplis Defendants have
provided no factual basis for why compliance with Request No. 7 is any more burdensome than
any of the other requests contained in the First Inspection Demand. Further, whether or not the
case can be disposed by demurrer is irrelevant to First Inspection Demand and betrays the
Exemplis Defendants’ strategy to delay and deflect the Plaintiffs’ investigation and prosecution
of the case until such time as an equally meritless demurrer can be decided.
The Exemplis Defendants also make the contradictory objections that Request No. 7
invades “the privacy interests of Exemplis and Lopez and/or third parties,” while at the same
time asserting that the “Request calls for documents already in the possession, custody, and/or
control of Plaintiff.” Obviously, these objections are boilerplate, unmitigated nonsense without
any basis in fact. What documents were “preserved” by the Exemplis Defendants in response to
the 2/18/20 demand are obviously in the exclusive possession, custody or control of the
Exemplis Defendants. Moreover, since presumably most of the responsive documents have to
do with Plaintiffs’ account, they cannot possibly involve the “privacy” interests of either the
Exemplis Defendants or other “third parties.”
These objections are totally and completely without merit and the response is not
compliant Code of Civil Procedure Section 2031.240.
E. Exemplis Defendants’ Privilege Objections Are Inadequate and Meritless
Exemplis and Lopez also object to Request No. 7 “to the extent that it seeks documents
MEMORANDUM OF POINTS AND
AUTHORITIES IN SUPPORT OF MOTION
TO COMPEL FURTHER RESPONSES TO
FIRST DEMAND FOR INSPECTION OF
-6- DOCUMENTSCe Co ye
NO CO)
Yb oN Ye NY YN NN VY
OO ee
protected by the attorney-work product doctrine and/or attorney-client privilege, and seeks the
proprietary and/or confidential business information of Exemplis.” They also object that “the
Request calls for a legal opinion and/or legal conclusion.” Yet, Request No. 7 does neither.
Moreover, the Exemplis Defendants’ response fails to provide sufficient information to justify its
claim of privilege, including its failure to provide a privilege log compliance with Code of Civil
Procedure Section 2031.240.
Although the basis for their “privilege” objections is not very clear, the Exemplis
Defendants apparently confuse whether the “preserved” documents are privileged with the
actions presumably taken by counsel to set them aside. However, the Exemplis Defendants may
only withhold the production of responsive documents if the underlying documents themselves
constitute confidential attorney-client communications or work product. Request No. 7 does not
seek to discover communication between the Exemplis Defendants and their counsel, but rather
only the underlying documents that were “preserved” in response to Request No. 7.
The party asserting a privilege has the initial burden of demonstrating that the
communication falls within the privilege. (Wellpoint Health Networks, Inc. v. Superior Court
(1997) 59 Cal. App. 4th 110, 123); State Farm Fire & Cas. Co. v. Superior Court (1997) 54 Cal.
App. 4th 625, 639) However, once an attorney-client relationship has been established,
communications made between the attorney and the client are presumed to be in confidence.
(Evid. Code § 917; State Farm Fire & Cas. Co., 54 Cal. App. 4th at 639) To support a claim of
attorney-client privilege, a communication must be:
* made by a “client”;
* to a “lawyer”;
* in confidence;
+ during the course of the attorney-client relationship.
(Tuft, Cal. Prac. Guide: Professional Responsibility, Ch. 7-C, Attorney-Client Privilege (Rutter
2020))
“A writing that reflects an attorney's impressions, conclusions, opinions, or legal
research or theories is not discoverable under any circumstances. The work
product of an attorney, other than a writing described in the first sentence, is not
discoverable unless the court determines that denial of discovery will unfairly
MEMORANDUM OF POINTS AND
AUTHORITIES IN SUPPORT OF MOTION
TO COMPEL FURTHER RESPONSES TO
FIRST DEMAND FOR INSPECTION OF
DOCUMENTSCe Co ye
NO CO)
Yb oN Ye NY YN NN VY
OO ee
prejudice the party seeking discovery in preparing that party's claim or defense or
will result in an injustice. Cal. C.C.P. § 2018.030.
(Finley, California Discovery Citations, § 11:9, Writings and written documentation (Rutter
2021)
However, underlying evidence that does not itself reflect confidential attorney-client
privilege communications does not become “privileged” merely because an attorney collected or
received it. “A statement independently prepared by a witness does not become protected work
product simply upon its transmission to an attorney.” (Coito v. Superior Court (2012) 54 Cal.4th
480)
When asserting claims of privilege or attorney work product protection, the objecting
party must provide “sufficient factual information” to enable other parties to evaluate the merits
of the claim, “including, if necessary, a privilege log.” (Code of Civil Procedure §
2031.240(c)(1); Lopez v. Watchtower Bible & Tract Soc. of New York, Inc. (2016) 246 Cal.App.
4th 566, 596-597 (burden to show preliminary facts supporting application of privilege not met
where defendant failed to produce privilege log or identify any specific confidential
communications)
Yet, in this case, the Exemplis Defendants have done nothing to support their bald
assertion of “privilege” despite the fact that Request No. 7 itself does not request production of
attorney-client communications.
F. The Court Should Impose Sanctions Due To The Exemplis Defendants’
Failure Resolve the Discovery Disputes Informally
The Court shall impose “against any party, person, or attorney who unsuccessfully
opposes . . . a motion to compel compliance with a demand, unless it finds that the one subject to
the sanction acted with substantial justification or that other circumstances make the imposition
of the sanction unjust.” (Code Civ. Proc. § 2031.320 (b)) Additionally, the party who fails to
make a “reasonable and good faith attempt” can be ordered to pay the reasonable expenses,
including attorney fees, incurred by the other party on the motion to compel. (Code Civ. Proc.
§§ 2023.010 (i), 2023.020; Obregon v. Superior Court (1998) 67 Cal.App.4th 424, 435.)
MEMORANDUM OF POINTS AND
AUTHORITIES IN SUPPORT OF MOTION
TO COMPEL FURTHER RESPONSES TO
FIRST DEMAND FOR INSPECTION OF
DOCUMENTSSom INDY
Cm NA A Rw NH
YbyoN YY YN NN LY
oI AA KR BH |= S
“Reasonable expenses” include the time moving party's counsel spent in research and preparation
of the motion and court time in connection with the motion. (See Ghanooni v. Super Shuttle of
Los Angeles (1993) 20 Cal.App.4th 256, 262)
Because the Motion should be granted on the above grounds, sanctions should be
imposed against the Exemplis Defendants and opposing counsel, jointly and severally, in the
amount of $3,950.00 plus court costs incurred by the Plaintiff in making this Motion, in
attempting good faith meet and confer efforts that were turned away. The Exemplis Defendants
have no substantial justification for opposing this Motion because of their clear failures in
complying with discovery obligations in the first place.
Iv. CONCLUSION
Despite Plaintiff's exhaustive “meet and confer” efforts, the Exemplis Defendants have
steadfastly refused to amend or modify their response to Request No. 7 or even to provide any
factual or legal basis for their many objections, including the claim of privilege. Because their
response is inadequate, they must be compelled to state whether responsive documents exist,
existed, or were lost or destroyed and whether they will permit production of all responsive
documents within their possession, custody or control. To the extent that they are withholding
any documents based upon a legitimate assertion of any privileged, such documents must be
identified on the Privilege Log with such sufficient description that their objections can be
evaluated. In addition, sanctions should be imposed to deter further abuse of the discovery
process.
DATED: April 8, 2021 Respectfully submitted.
MOLLICA LAW
TERRY J. MOZLICA, ESQ.
Attorneys for Plaintiff PACIFIC OFFICE
Cc.
DESIGNS,
MEMORANDUM OF POINTS AND
AUTHORITIES IN SUPPORT OF MOTION
TO COMPEL FURTHER RESPONSES TO
FIRST DEMAND FOR INSPECTION OF
oe DOCUMENTS
Preview
Seo NC NbN YY YN NR NY YD CN 20CV368229 Santa Clara — Civil TERRY J. MOLLICA, ESQ. (SBN 139816) MOLLICA LAW 560 First Street, Suite B201 Benicia, CA. 94510 Tele: (925) 239-2380 Fax: (925)239-2382 E-mail: ttm@caattnys.com GLEN H. OLIVES (SBN 057942) Law Office of Glen H. Olives 4701 Soquel Drive, Suite E Soquel, CA. 95073 Telephone: (408) 505-6889 E-mail: gho57942@gmail.com Attomeys for plaintiff PACIFIC OFFICE DESIGNS, INC., a California Corporation SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SANTA CLARA UNLIMITED JURISDICATION PACIFIC OFFICE DESIGNS, INC., a California Corporation, Plaintiff, Ve SPOT ON CONSULTING GROUP, a Professional Accountancy Corporation; JONATHAN RONALD LADDY; EXEMPLIS, LLC; a California Limited Liability Company; PAUL DE VRIES, KELLY PAULINE PLAYLE; NANCY LOPEZ, and DOES 1-150, Inclusive, Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) A. Floresca Electronically Filed by Superior Court of CA, County of Santa Clara, on 4/8/2021 3:19 PM Reviewed By: A. Floresca Case #20CV368229 Envelope: 6204402 Case No.: 20CV368229 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO COMPEL FURTHER RESPONSES TO FIRST DEMAND FOR INSPECTION OF DOCUMENTS AND FOR SANCTIONS Hearing: 6-3-21 Date: Time: 9:00 a.m. Dept. “FBA 20 , 2021 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO COMPEL FURTHER RESPONSES TO FIRST DEMAND FOR INSPECTION OF DOCUMENTS,Ce Co ye NO CO) Yb oN Ye NY YN NN VY OO ee I. INTRODUCTION Plaintiff PACIFIC OFFICE DESIGNS, INC. (hereinafter referred to as “Plaintiff” or “PACIFIC OFFICE”) hereby moves to compel a further response to Request for Production No. 7 of Plaintiffs’ First Requests for Production of Documents (“First Inspection Demand”) to defendants EXEMPLIS, LLC, PAUL DE VRIES, and NANCY LOPEZ (hereinafter collectively referred to as “the Exemplis Defendants”) pursuant to Code of Civil Procedure Sections 2031.310, , et seg., and Cal. Rules of Court, Rule 3.1345(a)(5). Request for Production No. 7 seeks production of all documents “preserved” by the Exemplis Defendants in response to Plaintiff's pre-litigation demand that documents and things pertaining to the underlying diversion of $281,571 in payments made by Plaintiff to the Exemplis Defendants be preserved. This Request plainly seeks relevant and discoverable documents, but the Exemplis Defendants’ Response to Request No. 7 states only boilerplate and meritless objections. Despite literally months of attempted “meet and confer” efforts by Plaintiff, the Exemplis Defendants refuse to amend their Response to state whether responsive records “exist” or ever existed or whether the Exemplis Defendants will allow their production and inspection. Sadly, this dispute is part of a much broader pattern of conduct by the Exemplis Defendants to obstruct legitimate discovery, as explained more fully in the accompanying motion to compel compliance and supporting declarations. Accordingly, Plaintiff requests the imposition of monetary sanctions be imposed against the Exemplis Defendants and opposing counsel, jointly and severally, in the amount of $3,950, representing the reasonable costs incurred by the Plaintiff in making this Motion, and in attempting good faith meet and confer efforts that were turned away. Il. STATEMENT OF FACTS A. Factual Background Almost six months before this action was initiated, Plaintiff's counsel initiated an investigation into exactly what had occurred to divert PACIFIC OFFICE’s $281,571 payment toward an account payable owed to EXEMPLIS, LLC. (Mollica Decl., 42) On February 7, MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO COMPEL FURTHER RESPONSES TO FIRST DEMAND FOR INSPECTION OF -f- DOCUMENTSCe Co ye NO CO) Yb oN Ye NY YN NN VY OO ee 2020, Plaintiffs counsel issued a letter to representatives of both the EXEMPLIS Defendants and the SPOT ON Defendants (Mollica Decl., (3 and Exh. A) The letter demanded that each of the defendants “immediately take affirmative steps to protect and preserve any and all records, including purchase orders, invoices, receipts, electronic transfers, emails, texts, and any communications which in any way related to the aforementioned payments as well as to protect and preserve all of the electronic data and documents described hereafter.” In response to the letter, EXEMPLIS’ Larry Rivard referred Plaintiff's counsel to Exemplis General Counsel, Peter Ching, Esq. (Mollica Decl., 4) Mr. Mollica and Mr. Ching spoke on March 18, 2020. (Mollica Decl., 95) Among other things, Mr. Mollica inquired as to whether records had been preserved in response to the February 17, 2020 demand and Mr. Ching advised that they had been preserved. (Mollica Decl., 5) Mr. Mollica asked for permission to interview certain EXEMPLIS employees, including defendant NANCY LOPEZ, but Mr. Ching «“ indicated that as a preliminary matter, he would inquire as to EXEMPLIS’s “position” on the incidents in question and advise Mr. Mollica within a week or so. (Mollica Decl., 5) When Mr. Mollica did not hear back from Mr. Ching, on March 27, 2020, Mr. Mollica followed up with an email requesting the status. (Mollica Decl., §6 and Exh. B) Thereafter, Mr. Ching became unresponsive and would not cooperate in the investigation. (Mollica Decl., 47) A few weeks later, defendant LOPEZ, who had been EXEMPLIS’ account manager in charge of the Plaintiff's account, left the company for unexplained reasons. (Mollica Decl., J8) On November 23, 2020, Plaintiff propounded the First Inspection Demand upon the Exemplis Defendants. (Mollica Decl., {9 and Exh. C) Among the requests was Request No. 7, which seeks the production of documents that were “preserved and protected” in response to Plaintiff's 2/7/20 demand to preserve evidence. After requesting and being granted an extension of time to respond due to the intervening holidays, on January 19, 2021, Exemplis provided their written response to the First Inspection Demand. (Mollica Decl., 410 and Exh. D) The original Response was deemed inadequate by Plaintiffs’ counsel for a variety of reasons, including the fact that no documents were produced at the time despite agreements to do so. (Mollica Decl., 11) MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO COMPEL FURTHER RESPONSES TO FIRST DEMAND FOR INSPECTION OF -2- DOCUMENTSCe Co ye NO CO) Yb oN Ye NY YN NN VY OO ee On February 2, 2021, Plaintiffs’ counsel sent a “meet and confer” letter to counsel for the Exemplis Defendants. (Mollica Decl., {11 and Exh. E) Among other things, the letter states that the Response to Request No. 7 is “incomplete” and the objections “meritless and requests that the Exemplis Defendants amend their response to state whether responsive documents “exist, existed, or were lost or destroyed” and, if asserted to be privileged, that a Privilege Log be provided. Over a month later, on March 5, 2021, counsel for the Exemplis Defendants responded to the “meet and confer” letter. (Mollica Decl., §15 and Exh. H) Among other things, she asserted that “Exemplis and Lopez will not agree to amend their response to RFP No. 7 at this time.” During the numerous and. lengthy negotiations between the parties concerning Request No. 7 and other discovery disputes, counsel for the Exemplis Defendants steadfastly refused to amend its response to Request No. 7 or to provide a Privilege Log. (Mollica Decl., 15) Although counsel for the Exemplis Defendants did agree to amend other responses, they remain incalcitrant regarding Request No.7 or provide a Privilege Log. (Mollica Decl., 415) iil. LEGAL ARGUMENTS One party may obtain discovery from another pursuant to the Rules of Civil Procedure regarding any matter not privileged that is relevant to the subject matter involved in the pending action if the matter is itself admissible or appears reasonably calculated to lead to the discovery of admissible evidence. (Code Cov. Proc. §2017.010.) The scope of discovery is broad, and discovery rules are applied liberally in favor of discovery. (Cruz v. Super. Ct. (2004) 121 Cal.App.4th 646.) Each party is entitled to issue discovery requests on each other party to an action. (Code Civ. Proc. §§ 2030.030 (a)(1)-(2), 2031.010 (b), 20330.010) Motions to compel ordinarily should be filed separately, but they may be joined where the requests are so interrelated as to make separate motions wholly inefficient (e.g., where several defendants have all failed to answer the same set of interrogatories). (See generally The Rutter Group California Practice Guide: Civil Procedure Before Trial, § 8:1139) Failure to respond to discovery requests, evasive responses, and objections lacking substantial justification are “misuses of the discovery process” and the propounding party’s remedy under most MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO COMPEL FURTHER RESPONSES TO FIRST DEMAND FOR INSPECTION OF 3. DOCUMENTSCe Co ye NO CO) Yb oN Ye NY YN NN VY OO ee discovery methods is to file a motion to compel and seek monetary sanctions pursuant to the appropriate statutory provisions. (Code Civ. Proc. § 2023.010) A motion to compel lies where the party to whom the interrogatories or requests were directed gave responses deemed improper by the propounding party. (Code Civ. Proc. §§ 2030.300, 2033.290; see Best Products, Inc. v. Superior Court (2004) 119 Cal.App.4th 1181, 1189-90 (motion to compel proper to challenge “boilerplate” responses)) Prior to bringing a motion, the movant must have engaged in a “reasonable and good faith attempt” to resolve the issues informally. (Code Civ. Proc. §§ 2016.040, 2030.300 (b); see Clement v. Alegre (2009) 177 Cal.App.4th 1277, 1294) B. Legal Requirements For Responses to Requests for Admission The Exemplis Defendants’ response only provided a host of boilerplate objections that are without merit and they have refused to provide a statement of compliance or inability to comply, as required by Code of Civil Procedure Sections 2031.210, 2031.220, or 2031.230 and fail to provide sufficient information to justify its objections, as required by Code of Civil Procedure Section 2031.240. The boilerplate objections are plainly meritless and the Exemplis Defendants have failed or refused to provide the required privilege log. Code of Civil Procedure Section 2031.210 provides that a party to whom an inspection demand has been directed must, if able to respond, provide a written “statement that the party will comply with the particular demand for inspection, copying, testing, or sampling by the date set for the inspection, copying, testing, or sampling pursuant to paragraph (2) of subdivision (c) of Section 203 1.030 and any related activities.” The statement of compliance must include “a statement that the party to whom a demand for inspection, copying, testing, or sampling has been directed will comply with the particular demand shall state that the production, inspection, copying, testing, or sampling, and related activity demanded, will be allowed either in whole or in part, and that all documents or things in the demanded category that are in the possession, custody, or control of that party and to which no objection is being made will be included in the production.” (Code of Civil Procedure Section 2031.220) If the respondent is unable to comply with the demand, the response must include “a representation of inability to comply with the particular demand for inspection” and “shall affirm that a diligent search and a reasonable MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO COMPEL FURTHER RESPONSES TO FIRST DEMAND FOR INSPECTION OF -4- DOCUMENTSCe Co ye NO CO) Yb oN Ye NY YN NN VY OO ee inquiry has been made in an effort to comply with that demand.” (Code of Civil Procedure Section 2031.230) “This statement shall also specify whether the inability to comply is because the particular item or category has never existed, has been destroyed, has been lost, misplaced, or stolen, or has never been, or is no longer, in the possession, custody, or control of the responding party.” (/d.) “The statement shall set forth the name and address of any natural person or organization known or believed by that party to have possession, custody, or control of that item or category of item.” (/bid.) On the other hand, if the respondent states only objections to the request, the specific responsive documents requested and the basis for the objection and, if the objection is based upon the attorney-client privilege, a privilege log must be provided. Code of Civil Procedure Section 2031.240 provides: (b) If the responding party objects to the demand for inspection, copying, testing, or sampling of an item or category of item, the response shall do both of the following: (1) Identify with particularity any document, tangible thing, land, or electronically stored information falling within any category of item in the demand to which an objection is being made. (2) Set forth clearly the extent of, and the specific ground for, the objection. If an objection is based on a claim of privilege, the particular privilege invoked shall be stated. If an objection is based on a claim that the information sought is protected work product under Chapter 4 (commencing with Section 2018.010 ), that claim shall be expressly asserted. (c)(1) Ifan objection is based on a claim of privilege or a claim that the information sought is protected work product, the response shall provide sufficient factual information for other parties to evaluate the merits of that claim, including, if necessary, a privilege log. (Code of Civil Procedure Section 2031.240 (emphasis added) C. Exemplis Defendants’ Responses Are Incomplete and Noncompliant Exemplis Defendants’ Response to the Request is incomplete because it does not contain any statement of compliance or inability to comply, as required by Code of Civil Procedure Sections 2031.210, 2031.220, or 2031.230. MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO COMPEL FURTHER RESPONSES TO FIRST DEMAND FOR INSPECTION OF 5. DOCUMENTSCe Co ye NO CO) Yb oN Ye NY YN NN VY OO ee D. Exemplis Defendants’ Objections Are Inadequate and Meritless The Exemplis Defendants’ boilerplate objections assert that Request No. 7 is “vague and 9 «6, ambiguous,” “overbroad as to time and scope,” and “not reasonably calculated to lead to the discovery of admissible evidence.” However, on its face, Request No. 7 is precise and specific as to the “preserved” documents in response to the 2/17/20 letter. Clearly, these objections are without any merit whatsoever. The Exemplis Defendants also object that Request No. 7 is “unduly burdensome and. harassing, particularly because the case is not yet at issue and Exemplis and Lopez contend the claims against Lopez must be dismissed on demurrer.” Yet, the Exemplis Defendants have provided no factual basis for why compliance with Request No. 7 is any more burdensome than any of the other requests contained in the First Inspection Demand. Further, whether or not the case can be disposed by demurrer is irrelevant to First Inspection Demand and betrays the Exemplis Defendants’ strategy to delay and deflect the Plaintiffs’ investigation and prosecution of the case until such time as an equally meritless demurrer can be decided. The Exemplis Defendants also make the contradictory objections that Request No. 7 invades “the privacy interests of Exemplis and Lopez and/or third parties,” while at the same time asserting that the “Request calls for documents already in the possession, custody, and/or control of Plaintiff.” Obviously, these objections are boilerplate, unmitigated nonsense without any basis in fact. What documents were “preserved” by the Exemplis Defendants in response to the 2/18/20 demand are obviously in the exclusive possession, custody or control of the Exemplis Defendants. Moreover, since presumably most of the responsive documents have to do with Plaintiffs’ account, they cannot possibly involve the “privacy” interests of either the Exemplis Defendants or other “third parties.” These objections are totally and completely without merit and the response is not compliant Code of Civil Procedure Section 2031.240. E. Exemplis Defendants’ Privilege Objections Are Inadequate and Meritless Exemplis and Lopez also object to Request No. 7 “to the extent that it seeks documents MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO COMPEL FURTHER RESPONSES TO FIRST DEMAND FOR INSPECTION OF -6- DOCUMENTSCe Co ye NO CO) Yb oN Ye NY YN NN VY OO ee protected by the attorney-work product doctrine and/or attorney-client privilege, and seeks the proprietary and/or confidential business information of Exemplis.” They also object that “the Request calls for a legal opinion and/or legal conclusion.” Yet, Request No. 7 does neither. Moreover, the Exemplis Defendants’ response fails to provide sufficient information to justify its claim of privilege, including its failure to provide a privilege log compliance with Code of Civil Procedure Section 2031.240. Although the basis for their “privilege” objections is not very clear, the Exemplis Defendants apparently confuse whether the “preserved” documents are privileged with the actions presumably taken by counsel to set them aside. However, the Exemplis Defendants may only withhold the production of responsive documents if the underlying documents themselves constitute confidential attorney-client communications or work product. Request No. 7 does not seek to discover communication between the Exemplis Defendants and their counsel, but rather only the underlying documents that were “preserved” in response to Request No. 7. The party asserting a privilege has the initial burden of demonstrating that the communication falls within the privilege. (Wellpoint Health Networks, Inc. v. Superior Court (1997) 59 Cal. App. 4th 110, 123); State Farm Fire & Cas. Co. v. Superior Court (1997) 54 Cal. App. 4th 625, 639) However, once an attorney-client relationship has been established, communications made between the attorney and the client are presumed to be in confidence. (Evid. Code § 917; State Farm Fire & Cas. Co., 54 Cal. App. 4th at 639) To support a claim of attorney-client privilege, a communication must be: * made by a “client”; * to a “lawyer”; * in confidence; + during the course of the attorney-client relationship. (Tuft, Cal. Prac. Guide: Professional Responsibility, Ch. 7-C, Attorney-Client Privilege (Rutter 2020)) “A writing that reflects an attorney's impressions, conclusions, opinions, or legal research or theories is not discoverable under any circumstances. The work product of an attorney, other than a writing described in the first sentence, is not discoverable unless the court determines that denial of discovery will unfairly MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO COMPEL FURTHER RESPONSES TO FIRST DEMAND FOR INSPECTION OF DOCUMENTSCe Co ye NO CO) Yb oN Ye NY YN NN VY OO ee prejudice the party seeking discovery in preparing that party's claim or defense or will result in an injustice. Cal. C.C.P. § 2018.030. (Finley, California Discovery Citations, § 11:9, Writings and written documentation (Rutter 2021) However, underlying evidence that does not itself reflect confidential attorney-client privilege communications does not become “privileged” merely because an attorney collected or received it. “A statement independently prepared by a witness does not become protected work product simply upon its transmission to an attorney.” (Coito v. Superior Court (2012) 54 Cal.4th 480) When asserting claims of privilege or attorney work product protection, the objecting party must provide “sufficient factual information” to enable other parties to evaluate the merits of the claim, “including, if necessary, a privilege log.” (Code of Civil Procedure § 2031.240(c)(1); Lopez v. Watchtower Bible & Tract Soc. of New York, Inc. (2016) 246 Cal.App. 4th 566, 596-597 (burden to show preliminary facts supporting application of privilege not met where defendant failed to produce privilege log or identify any specific confidential communications) Yet, in this case, the Exemplis Defendants have done nothing to support their bald assertion of “privilege” despite the fact that Request No. 7 itself does not request production of attorney-client communications. F. The Court Should Impose Sanctions Due To The Exemplis Defendants’ Failure Resolve the Discovery Disputes Informally The Court shall impose “against any party, person, or attorney who unsuccessfully opposes . . . a motion to compel compliance with a demand, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.” (Code Civ. Proc. § 2031.320 (b)) Additionally, the party who fails to make a “reasonable and good faith attempt” can be ordered to pay the reasonable expenses, including attorney fees, incurred by the other party on the motion to compel. (Code Civ. Proc. §§ 2023.010 (i), 2023.020; Obregon v. Superior Court (1998) 67 Cal.App.4th 424, 435.) MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO COMPEL FURTHER RESPONSES TO FIRST DEMAND FOR INSPECTION OF DOCUMENTSSom INDY Cm NA A Rw NH YbyoN YY YN NN LY oI AA KR BH |= S “Reasonable expenses” include the time moving party's counsel spent in research and preparation of the motion and court time in connection with the motion. (See Ghanooni v. Super Shuttle of Los Angeles (1993) 20 Cal.App.4th 256, 262) Because the Motion should be granted on the above grounds, sanctions should be imposed against the Exemplis Defendants and opposing counsel, jointly and severally, in the amount of $3,950.00 plus court costs incurred by the Plaintiff in making this Motion, in attempting good faith meet and confer efforts that were turned away. The Exemplis Defendants have no substantial justification for opposing this Motion because of their clear failures in complying with discovery obligations in the first place. Iv. CONCLUSION Despite Plaintiff's exhaustive “meet and confer” efforts, the Exemplis Defendants have steadfastly refused to amend or modify their response to Request No. 7 or even to provide any factual or legal basis for their many objections, including the claim of privilege. Because their response is inadequate, they must be compelled to state whether responsive documents exist, existed, or were lost or destroyed and whether they will permit production of all responsive documents within their possession, custody or control. To the extent that they are withholding any documents based upon a legitimate assertion of any privileged, such documents must be identified on the Privilege Log with such sufficient description that their objections can be evaluated. In addition, sanctions should be imposed to deter further abuse of the discovery process. DATED: April 8, 2021 Respectfully submitted. MOLLICA LAW TERRY J. MOZLICA, ESQ. Attorneys for Plaintiff PACIFIC OFFICE Cc. DESIGNS, MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO COMPEL FURTHER RESPONSES TO FIRST DEMAND FOR INSPECTION OF oe DOCUMENTS