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1/7/2020
KELLY LITIGATION GROUP, INC.
RICHARD M. KELLY, ESQ, (SBN 154504)
MICHAEL MENGARELLI ESQ. (SBN 215000)
306 Lorton Avenue
Burlingame, CA 94010
Tel: 650-591-2282
Fax: 650-591-2292
Attorneys for Plaintiff k Cross Defendant,
LOUIS PAYCI-IECK dba
EUROPL'AN EN'fERPRISES
IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND I'OR THE COUNTY OF SAN MATEO
10
UNLIMITED CIVIL JURISDICTION
12 LOUIS PAYCHECK dba EUROPEAN Case No.: 19 CIV 02595
13 ENTERPRISES,
OPPOSITION POINTS 4
14 Plaintiff, AUTHORITIES TO THE MOTION
vs. TO COMPEL SEEKING SANCTIONS
15
PUNIT K. SARNA. et al.,
16 Date: February 6, 2020
Defendants. Time: 9:00 a.m.
17 Dept: Hon. Leland Davis, III, Presiding
I;
18
AND RELATED CROSS-ACTION
20
COMES NOW, LOUIS PAYCHECK dba EUROPEAN ENTERPRISES
21
(" Plaintiff") responds and/or opposes the motion of Punit K. Sama for compelling further
discovery responses, as follows:
23 Introduction — Discovery Dispute
24 The outlined and asserted egregiousness of claims against Mr. Paycheck and his
25 counsel "refusing" to comply is a total and complete fabrication of this discovery dispute,
26 The moving party did not fully and properly meet and confer: raising 3 document
27 I'equest issues by confer but moving in this motion about 18 document requests.
28
Kppilipi 6 p
pp
OPPOSITION POINTS & AUTHORITIFS To THE MOTION To COMPEL SEEKING SANCTIONS
The attachment of, and reliance upon, discovery matters in entirely different cases
which are entirely irrelevant to this action, speaks volumes to the weakness of the moving
2
party's position.
3
Regarding the "Request for Production of Documents, Set One", by meet and
confer [See Ex. 5, Dec. Haulk], the compliance by Mr. Paycheck through his counsel to
5
allow inspection, copying, or other duplicated retrieval pursuant to C.C.P. $ 2031.010 (a)—
6
(e) is in full compliance with the discovery laws. [See Declaration of R. I&elly]. Contraiy
to the assertions of the moving party, responsive documents were actually produced as
identified in the written responses. [See Declaration of R. I&elly]
Regarding thc "Special Interrogatories, Set One", there is valid dispute regarding
10 the Constitutionally protected right to financial privacy of employees whose wages,
11 addresses and other personal information is being sought. It is true that objections werc
not withdrawn.
13 Law k Argument in Opposition
A. Law
C.C.P. $ 3031.010 is unequivocally clear and is quoted with emphasis, as follows:
15
(a) Any party may obtain discovery within the scope delimited by Chapter 2 (commencing
16
with Section 2017.010), and subject to the restrictions set forth in Chapter 5 (commencing
17 with Section 2019.010), by inspecting, copying, testing, or sampling documents, tangible
things, land or other property, and electronically stored information in the possession,
18 custody, or control of any other party to the action.
(b) A party may demand that any other party produce and nermit the nartv making. the
19
demand. or someone actina on the demanding nartv's behalf. to insnect and to cony a
20 document that is in the possession, custody, or control of the party on whom the demand is
made.
21 and nermit nartv making the
(c) A party may demand that any other party produce the
22 demand. or someone actinu on the demanding nartv's behalf. to inspect and to nhotouranh.
test. or samnle anv tanuible thinus that are in the possession, custody, or control of the
23 party on whom the demand is made.
(d) A party may demand that any other party allow the nartv makinu the demand. or
24
someone actinv on the demandina nartv's behalf. to enter on anv land or other nronertv
25 that is in the nossession. custodv. or control of the nartv on whom the demand is made. and
to insnect and to measure. survev. nhotoaranh. test. or samnle the land or other property, or
26 designated object or operation on it.
any
27 (e) A party may demand that any other party produce and nermit the nartv making the
demand. or someone actina on the demandine nartv's behalf. to insnect. conv. test. or
28
Kttyllg
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APC 2
OPPOSITION POINTS k AUTHORITIES TO THE MOTION TO COMPEI, SEFKING SANCTIONS
samnle electronicallv stored information in the possession, custody, or control of the party
on whom demand is made.
The right to an employee's financial privacy under the Constitution of the State of
4 California was dcnotcd in Ameri-Medical Corp. v, Vorkers'omp. Appeals Bd., 42 Cal.
App. 4th 1260, 50 Cal. Rptr. 2d 366, 1996 Cal. App. LEXIS 168, 96 Cal. Daily Op.
Service 1292, 61 Cal. Comp. Cases 149, 96 Daily Journal DAR 2181.
6
The Court in international Federation of Professional cf Technical Engineers,
Local 2l, AFL-CIO v. Superior Court, 42 Cal. 4th 319, 330, 165 P.3d 488, 493, 64 Cal.
8
Rptr. 3d 693, 698-699, 2007 Cal. LEXIS 8918, *10-11, 26 I.E.R. Cas. (BNA) 940, 35
Media L. Rep. 2590, held
10
The parties agree that individuals have a legally
recognized privacy interest in their personal financial
information. Even before the explicit incorporation of the
12 our Constitution, we recognized
right ofprivacy into state
13 that "the protection of one's personal financial affairs and
those of his (or her) spouse and children against compulsory
14 public disclosure is an aspect of the zone of privacy which is
protected by the Fourth Amendment and which also falls
15
within that penumbra of constitutional rights into which the
16 government may not intrude absent a showing of compelling
need and that the intrusion is not overly broad." (City of
17 Carmel-by-the-Sea Cal.3d 268
v. Young(1970) 2 259, [85
18 Cal. Rptr. 1, 466 P.2d 225] (City of Cannel).)
19
B. Production of Documents
20
Despite meet and confer on Production of Documents ~oui addressing Requests I, 5
21
and 10 brought up by the moving party [See, Dec. R. Kelly], the moving pasty has now
included many other document production requests in this motion not previously
addressed. Please see this parties Opposition Separate Statement of Items in Dispute.
24 This emphasis is provided because it is the substantive explanation in the meet and
25 confer to the moving paity, to wit: Please come and inspect, copy, etc. at the place the
26 place of business of Mr. Paycheck as important because items are being sought beyond the
27 requests and confer process. Recalling for the Court, Messrs. Paycheck and Sama are
both San Mateo County residents; the project is in San Mateo County and Mr. Kelly's
K pplrtp I pp
p
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OPPOSITION POINTS & AU TI IORITIFS TO THF. MOTION TO COMPEL SEEKING SANCI'IONS
office is in San Mateo County. The only person complaining [refusing] about coming to
San Mateo County to inspect, copy, etc. is Mr. Faulk's office located in Marin County.
2
All said and told, valid objections were stated; items were identified in written
responses and then produced. In confer [about Req. for Production I, 5 and 10], the offer
was made for and to permit the party making the demand, or someone acting on the
5
demanding paity's behalf, to inspect. and to copy the entire file materials in possession and
6
custody of Plaintiff. All of which is in compliance with the Code of Civil Procedure
discovery statutes.
However, Plaintiff is unwilling to produce otherwise financially private employee
information.
10 As such, this motion with sanctions being sought must be denied.
8. Special Interrogatories
12 As denoted in Gordon v. Superio& Court (1984) 161 Cal. App. 3d 157, 167, "A
party furnishing answers to [special] interrogatories "cannot plead ignorance to
information which can be obtained from sources under his control.""
14
(See, Oeco v. KI7bourne (1978) 84 Cal.App.3d 771, 782.). Here, the Plaintiff has not plead
ignorance or other excuse.
In the meet and confer process, the moving party addressed Special Interrogatories
17
17, 18, 25, 26; and 22, 57 and 58 [See Dec. Haulk, Ex. 2; 4; Dec. R. Kelly]. Unlike the
18
Production of Documents issues, these are the veiy same items at issue.
19
Snecial Interrogatories 17, 18, 25 and 26: Persons were identified pursuant to the
20
requests. By confer [See Dec. Haulk, Ex. 2; 4], the moving party is seeking the money
21
employees received.
22 Production of hand written notes were provided marked "Confidential" but actual
employee payroll and financial documents were not produced because (a) the personal
24 personnel addresses and (b) compensation information are privacy protected issues.
25 Special InteiToaatories 22, 57: These objections were validly stated and by way of
26 confer, the following was offered - twice: "my client is amenable to a full and complete
27 onsite physical review and copying of his project file. He is amenable to copying of all
matters you believe are pertinent. A date/time can be arranged that works" [See Dec.
Kppvlpl G p
Apc -4-
OPPOSITION POINTS & AUTHORITIES To THE MOTION To COMPFI, SEEKING SANCTIONS
Haulk Ex. 3] and, "I have conferred with my client and he remains open and invites you
(or personnel fiom your office) to set up an appointment to view information you believe
2
would ordinarily be found in a contractor's project file at my client office" [See Dec. R
3
Ikclly 11.22.19 Conferj.
This procedure is exactly what the code requires, to wit: permit the party making
5
the demand, or someone acting on the demanding party's behalf, to inspect and to
6
photograph, test, or sample any tangible things that are in the possession, custody, or
control of the party on whom the demand is made.
Special interrogatory 58: This interrogatory was answered honestly. Most all
communications on this project among Mr. Sama and Mr. Paycheck were oral and many
10 were by text or e-mail. The responding party has needed time to check his last year of e-
11 mails and texts to see if any exist.
12 'fhis response shall need to be amended to identify the diligent search for the
information sought.
This motion with sanctions being sought must be denied.
Conclusion
15
The assertion that Mr. Paycheck and his counsel are "refusing" to comply is a total
16
and complete fabrication of this discovery dispute.
17
The narrowed scope of meet and confer was addressed: primarily concerning issues
18
of employee financial privacy and objections.
19
This motion goes way and beyond thc purported issues addressed in the confer
20
process. Nonetheless, Plaintiff offered twice inviting Mr. Haulk (or personnel from his
21 view Paycheck's file his place of business. Such
office) to set an appointment to Mr. at
offer was totally unacceptable to Mr. Haulk.
23 Mr. Paycheck has provided:
24 1. Verified, identified and production of responsive documents with actual
25 production;
26 2. Valid objections stated;
27 3. Verified responses to the 58 Special Interrogatories were provided; and
28 4. Meet and confer with offers to view, inspect iuid copy file materials.
K llgglg
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Agg -5-
OPPOSITION POINTS S: AUTHOEITIL'S To THE MOTION To COMPLL SEFKING SANCTIONS
Information about other case sanctions is irrelevant and unwarranted; sanctions in
this matter is likewise entirely unwarranted; and this entire motion practice could have
2
avoided by Mr. Faulk, or someone in his office, going to view, inspect, copy, ctc. Mr.
3
Paycheck's file materials on this project.
Accordingly, this motion with sanctions being sought must be denied.
Dated:, i P4 9 T
Xn'i-o Kell itigation Group, Inc.
Richardhgf. Kelly, Esq.
10 Michael Mengarelli, Esq.;
Attorneys for Plaintiff k, Cross Defendant,
LOUIS PAYCHECK dba
12 EUROPEAN ENTERPRISES
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Kgpl'lip
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OPPOSITION POINTS a AUTHOEITIFS To THE MOTION To COMPFE SEEKING SANCTIONS
Preview
1/7/2020 KELLY LITIGATION GROUP, INC. RICHARD M. KELLY, ESQ, (SBN 154504) MICHAEL MENGARELLI ESQ. (SBN 215000) 306 Lorton Avenue Burlingame, CA 94010 Tel: 650-591-2282 Fax: 650-591-2292 Attorneys for Plaintiff k Cross Defendant, LOUIS PAYCI-IECK dba EUROPL'AN EN'fERPRISES IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND I'OR THE COUNTY OF SAN MATEO 10 UNLIMITED CIVIL JURISDICTION 12 LOUIS PAYCHECK dba EUROPEAN Case No.: 19 CIV 02595 13 ENTERPRISES, OPPOSITION POINTS 4 14 Plaintiff, AUTHORITIES TO THE MOTION vs. TO COMPEL SEEKING SANCTIONS 15 PUNIT K. SARNA. et al., 16 Date: February 6, 2020 Defendants. Time: 9:00 a.m. 17 Dept: Hon. Leland Davis, III, Presiding I; 18 AND RELATED CROSS-ACTION 20 COMES NOW, LOUIS PAYCHECK dba EUROPEAN ENTERPRISES 21 (" Plaintiff") responds and/or opposes the motion of Punit K. Sama for compelling further discovery responses, as follows: 23 Introduction — Discovery Dispute 24 The outlined and asserted egregiousness of claims against Mr. Paycheck and his 25 counsel "refusing" to comply is a total and complete fabrication of this discovery dispute, 26 The moving party did not fully and properly meet and confer: raising 3 document 27 I'equest issues by confer but moving in this motion about 18 document requests. 28 Kppilipi 6 p pp OPPOSITION POINTS & AUTHORITIFS To THE MOTION To COMPEL SEEKING SANCTIONS The attachment of, and reliance upon, discovery matters in entirely different cases which are entirely irrelevant to this action, speaks volumes to the weakness of the moving 2 party's position. 3 Regarding the "Request for Production of Documents, Set One", by meet and confer [See Ex. 5, Dec. Haulk], the compliance by Mr. Paycheck through his counsel to 5 allow inspection, copying, or other duplicated retrieval pursuant to C.C.P. $ 2031.010 (a)— 6 (e) is in full compliance with the discovery laws. [See Declaration of R. I&elly]. Contraiy to the assertions of the moving party, responsive documents were actually produced as identified in the written responses. [See Declaration of R. I&elly] Regarding thc "Special Interrogatories, Set One", there is valid dispute regarding 10 the Constitutionally protected right to financial privacy of employees whose wages, 11 addresses and other personal information is being sought. It is true that objections werc not withdrawn. 13 Law k Argument in Opposition A. Law C.C.P. $ 3031.010 is unequivocally clear and is quoted with emphasis, as follows: 15 (a) Any party may obtain discovery within the scope delimited by Chapter 2 (commencing 16 with Section 2017.010), and subject to the restrictions set forth in Chapter 5 (commencing 17 with Section 2019.010), by inspecting, copying, testing, or sampling documents, tangible things, land or other property, and electronically stored information in the possession, 18 custody, or control of any other party to the action. (b) A party may demand that any other party produce and nermit the nartv making. the 19 demand. or someone actina on the demanding nartv's behalf. to insnect and to cony a 20 document that is in the possession, custody, or control of the party on whom the demand is made. 21 and nermit nartv making the (c) A party may demand that any other party produce the 22 demand. or someone actinu on the demanding nartv's behalf. to inspect and to nhotouranh. test. or samnle anv tanuible thinus that are in the possession, custody, or control of the 23 party on whom the demand is made. (d) A party may demand that any other party allow the nartv makinu the demand. or 24 someone actinv on the demandina nartv's behalf. to enter on anv land or other nronertv 25 that is in the nossession. custodv. or control of the nartv on whom the demand is made. and to insnect and to measure. survev. nhotoaranh. test. or samnle the land or other property, or 26 designated object or operation on it. any 27 (e) A party may demand that any other party produce and nermit the nartv making the demand. or someone actina on the demandine nartv's behalf. to insnect. conv. test. or 28 Kttyllg I g P APC 2 OPPOSITION POINTS k AUTHORITIES TO THE MOTION TO COMPEI, SEFKING SANCTIONS samnle electronicallv stored information in the possession, custody, or control of the party on whom demand is made. The right to an employee's financial privacy under the Constitution of the State of 4 California was dcnotcd in Ameri-Medical Corp. v, Vorkers'omp. Appeals Bd., 42 Cal. App. 4th 1260, 50 Cal. Rptr. 2d 366, 1996 Cal. App. LEXIS 168, 96 Cal. Daily Op. Service 1292, 61 Cal. Comp. Cases 149, 96 Daily Journal DAR 2181. 6 The Court in international Federation of Professional cf Technical Engineers, Local 2l, AFL-CIO v. Superior Court, 42 Cal. 4th 319, 330, 165 P.3d 488, 493, 64 Cal. 8 Rptr. 3d 693, 698-699, 2007 Cal. LEXIS 8918, *10-11, 26 I.E.R. Cas. (BNA) 940, 35 Media L. Rep. 2590, held 10 The parties agree that individuals have a legally recognized privacy interest in their personal financial information. Even before the explicit incorporation of the 12 our Constitution, we recognized right ofprivacy into state 13 that "the protection of one's personal financial affairs and those of his (or her) spouse and children against compulsory 14 public disclosure is an aspect of the zone of privacy which is protected by the Fourth Amendment and which also falls 15 within that penumbra of constitutional rights into which the 16 government may not intrude absent a showing of compelling need and that the intrusion is not overly broad." (City of 17 Carmel-by-the-Sea Cal.3d 268 v. Young(1970) 2 259, [85 18 Cal. Rptr. 1, 466 P.2d 225] (City of Cannel).) 19 B. Production of Documents 20 Despite meet and confer on Production of Documents ~oui addressing Requests I, 5 21 and 10 brought up by the moving party [See, Dec. R. Kelly], the moving pasty has now included many other document production requests in this motion not previously addressed. Please see this parties Opposition Separate Statement of Items in Dispute. 24 This emphasis is provided because it is the substantive explanation in the meet and 25 confer to the moving paity, to wit: Please come and inspect, copy, etc. at the place the 26 place of business of Mr. Paycheck as important because items are being sought beyond the 27 requests and confer process. Recalling for the Court, Messrs. Paycheck and Sama are both San Mateo County residents; the project is in San Mateo County and Mr. Kelly's K pplrtp I pp p p pc -3- OPPOSITION POINTS & AU TI IORITIFS TO THF. MOTION TO COMPEL SEEKING SANCI'IONS office is in San Mateo County. The only person complaining [refusing] about coming to San Mateo County to inspect, copy, etc. is Mr. Faulk's office located in Marin County. 2 All said and told, valid objections were stated; items were identified in written responses and then produced. In confer [about Req. for Production I, 5 and 10], the offer was made for and to permit the party making the demand, or someone acting on the 5 demanding paity's behalf, to inspect. and to copy the entire file materials in possession and 6 custody of Plaintiff. All of which is in compliance with the Code of Civil Procedure discovery statutes. However, Plaintiff is unwilling to produce otherwise financially private employee information. 10 As such, this motion with sanctions being sought must be denied. 8. Special Interrogatories 12 As denoted in Gordon v. Superio& Court (1984) 161 Cal. App. 3d 157, 167, "A party furnishing answers to [special] interrogatories "cannot plead ignorance to information which can be obtained from sources under his control."" 14 (See, Oeco v. KI7bourne (1978) 84 Cal.App.3d 771, 782.). Here, the Plaintiff has not plead ignorance or other excuse. In the meet and confer process, the moving party addressed Special Interrogatories 17 17, 18, 25, 26; and 22, 57 and 58 [See Dec. Haulk, Ex. 2; 4; Dec. R. Kelly]. Unlike the 18 Production of Documents issues, these are the veiy same items at issue. 19 Snecial Interrogatories 17, 18, 25 and 26: Persons were identified pursuant to the 20 requests. By confer [See Dec. Haulk, Ex. 2; 4], the moving party is seeking the money 21 employees received. 22 Production of hand written notes were provided marked "Confidential" but actual employee payroll and financial documents were not produced because (a) the personal 24 personnel addresses and (b) compensation information are privacy protected issues. 25 Special InteiToaatories 22, 57: These objections were validly stated and by way of 26 confer, the following was offered - twice: "my client is amenable to a full and complete 27 onsite physical review and copying of his project file. He is amenable to copying of all matters you believe are pertinent. A date/time can be arranged that works" [See Dec. Kppvlpl G p Apc -4- OPPOSITION POINTS & AUTHORITIES To THE MOTION To COMPFI, SEEKING SANCTIONS Haulk Ex. 3] and, "I have conferred with my client and he remains open and invites you (or personnel fiom your office) to set up an appointment to view information you believe 2 would ordinarily be found in a contractor's project file at my client office" [See Dec. R 3 Ikclly 11.22.19 Conferj. This procedure is exactly what the code requires, to wit: permit the party making 5 the demand, or someone acting on the demanding party's behalf, to inspect and to 6 photograph, test, or sample any tangible things that are in the possession, custody, or control of the party on whom the demand is made. Special interrogatory 58: This interrogatory was answered honestly. Most all communications on this project among Mr. Sama and Mr. Paycheck were oral and many 10 were by text or e-mail. The responding party has needed time to check his last year of e- 11 mails and texts to see if any exist. 12 'fhis response shall need to be amended to identify the diligent search for the information sought. This motion with sanctions being sought must be denied. Conclusion 15 The assertion that Mr. Paycheck and his counsel are "refusing" to comply is a total 16 and complete fabrication of this discovery dispute. 17 The narrowed scope of meet and confer was addressed: primarily concerning issues 18 of employee financial privacy and objections. 19 This motion goes way and beyond thc purported issues addressed in the confer 20 process. Nonetheless, Plaintiff offered twice inviting Mr. Haulk (or personnel from his 21 view Paycheck's file his place of business. Such office) to set an appointment to Mr. at offer was totally unacceptable to Mr. Haulk. 23 Mr. Paycheck has provided: 24 1. Verified, identified and production of responsive documents with actual 25 production; 26 2. Valid objections stated; 27 3. Verified responses to the 58 Special Interrogatories were provided; and 28 4. Meet and confer with offers to view, inspect iuid copy file materials. K llgglg I g g Agg -5- OPPOSITION POINTS S: AUTHOEITIL'S To THE MOTION To COMPLL SEFKING SANCTIONS Information about other case sanctions is irrelevant and unwarranted; sanctions in this matter is likewise entirely unwarranted; and this entire motion practice could have 2 avoided by Mr. Faulk, or someone in his office, going to view, inspect, copy, ctc. Mr. 3 Paycheck's file materials on this project. Accordingly, this motion with sanctions being sought must be denied. Dated:, i P4 9 T Xn'i-o Kell itigation Group, Inc. Richardhgf. Kelly, Esq. 10 Michael Mengarelli, Esq.; Attorneys for Plaintiff k, Cross Defendant, LOUIS PAYCHECK dba 12 EUROPEAN ENTERPRISES 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Kgpl'lip I C p ppc -6- OPPOSITION POINTS a AUTHOEITIFS To THE MOTION To COMPFE SEEKING SANCTIONS