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MATTHEW A.
RAGGHIANTI
1101 Fifth
HAULK
FREITAS
Avenue, Suite
(SBN:
LLP
100
272457)
WW
3’”
Efectmnicaliy
1/30/2020
5m
Supine: Emit ctudau'u. County
ell
San Rafael, California 94901
Telephone: (415) 453-9433
Facsimile: (415)453-8269
Attorney for Defendants
PUNIT K. SARNA and
PUJA SARNA
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SAN MATEO
10 LOUIS PAYCHECK, CASE NO.: 19C|V02595
11
Plaintiff, REPLY TO OPPOSITION T0 MOTION
12
TO COMPEL
vs.
13 DATE: February 6, 2020
PUNIT K. SARNA, et a|., TIME: 9:00 a.m.
14 DEPT.: 1, Courtroom 4C
Defendants. JUDGE: Honorable Leland Davis, III
15
16
Complaint Filed: May 10, 2019
AND RELATED CROSS-ACTION. Trial Date: Not set.
17
18 Defendant and Cross-Complainant Punit Sarna (the “Owner”) submits this reply in
19 response to Plaintiff and Cross—Defendant Louis Paycheck’s (the "Contractor”) Opposition
20 to the Owner’s Motion to Compel.
21 I.INTRODUCTION
22 The Contractor refused to search for and produce documents in response to
23 requests for production and he has refused to provide full and complete responses to
24 special interrogatories. The Owner brought this Motion to Compel. The Contractor has
25 opposed the motion on three separate grounds: (1) the Owner’s failure to meet and
26 confer regarding requests for production ofdocuments, (2) the Contractor’s compliance
27 with Requests for Production, Set One, and (3) an assertion of "financial privacy.” The
28 Contractor’s arguments in opposition are legally and factually meritless.
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REPLY TO OPPOSITION TO MOTION TO COMPEL
The Contractor claims that the Owner only met and conferred regarding Requests
for Production 1, 5, and 10. This is false. The Owner’s counsel, Matthew Haulk, sent two
letters and an e—mail regarding the Contractor’s general failure to comply with CCP §
2031 .210 in response to each request for production, and his failure to produce all
responsive documents in his possession, custody, and control for inspection and copying.
The Contractor’s counsel, Richard Kelly, ignored the issue. (Decl. Haulk, Exh. 2, 4, and
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6).
The Contractor claims that he complied with Requests for Production, Set One, by
offering to produce all responsive records for inspection and copying at the Contractor’s
1O office. This is false. In a November 22, 2019 meet and confer letter, Mr. Kelly offered to
11 allow Mr. Haulk to view an incomplete production of documents; Critically, and in the
12 same sentence containing this “offer”, Mr. Kelly stated that the Contractor refused to
13 conduct a search for responsive documents and refused to recreate his file materials
14 forthe project. (Decl. Kelly, Exh. A; Decl. Haulk, Exh. Exh. 5).
15 In his Opposition and throughout his Separate Statement, the Contractor has only
16 quoted the first part of this sentence, which contains an offer to view a job file. Without
17 giving any indication of a partial quotation, the Contractor has omitted the second part of
18 this sentence, which contains the highly relevant qualifying statement that the production
19 would be incomplete because the Contractor refused to search for responsive
20 documents. There would be littlebenefit to a partial production, which is why Mr. Haulk
21 responded with a proposal forthe Contractor to prepare the responsive documents, and
22 for the Owner to pay for the responsive documents to be copied. (Decl. Haulk, Exh. 6).
23 Mr. Kelly ignored the offer.
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24 The Contractor claims that he is not required to produce project records or
25 information relating to work or the cost of work on the project because of “financial
26 privacy”. The Contractor did not assert this objection in response to special interrogatory
27 numbers 17 and 25 and therefore waived it.Where the Contractor did assert this
28 objection, he has failed to identify or describe the documents being withheld, he has
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REPLY TO OPPOSITION TO MOTION TO COMPEL
failed to produce any evidence to support the objection, and he has failed to explain why
the Owner’s proposal for redactions to social security numbers and account numbers is
insufficient to protect any privacy interest. The Owner’s interest in the documents and
information at—issue in this Motion outweigh any privacy interest. The work and cost of
work is central to this construction litigation, where the Contractor has sued to recover
compensation for work, and the Owner has sued to recover compensation for fraudulent
and inflated billings.
The Court should grant this Motion to Compel. The Contractor and his attorney
havé abused the discovery process and failed to meet and confer in good faith. The court
1O should award sanctions of $6,650. (Supplemental Declaration of Matthew A. Haulk).
11 A. Request for Production of Documents.
12 1. The Owner Met And Conferred Before Brinqinq This Motion To Compel.
13 The Contractor opposes this Motion on the ground that, “[t]he moving party did not
14 fully and properly meet and confer: raising 3 document request issues by confer but
15 moving in this motion about 18 document requests [sic.]". This is simply false.
16 All of Contractor’s responses to Requests for Production, Set One, violated CCP
17 section 2031 .210 and did not clearly state that the Contractor had produced all
18 responsive documents in his possession, custody, and control. Mr. Haulk raised this
19 issUe on three occasions during the meet and confer process. Mr; Kelly ignored it
20 entirely.
21 Mr. Haulk raised the issue in a November 6, 2019 meet and confer letter:
22 “The responses to requests for production identify responsive
documents but do not contain a statement of compliance as required
23 by CCP § 2031.210. This is concerning in light of the fact that the document
production is missing most documents one would ordinarily find in a
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contractor’s project file.
25
For example, the project file is missing the records that Mr. Paycheck was
26 required to create and keep under Business and Professions Code section
701 1. Please amend the responses to include statements of
27 compliance that are consistent with CCP § 2031 .210. I need to confirm
that Mr. Paycheck has conducted a diliqent search and inquiry of his
28 documents
records and produced all responsive in his possession.
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REPLY TO OPPOSITION TO MOTION TO COMPEL
custody. and control.”
(Decl. Haulk, Exh. 2).
Mr. Haulk raised the issue again in a November 11, 2019 meet and confér letter:
“Your client’s responses to Requests for Production. Set One are
vaque, uncertainl and do not comply with Code of Civil Procedure
section 2031.210. Rather that state that he will produce all responsive
documents, Mr. Paycheck has merely identified documents that he is
apparently willing to produce in response to each request.
You must amend vour responses to comply with CCP section
2031 .210 bv no later than November 22, 2019. If your refuse to do so, |
must assume that your client intends to withhold responsive documents and
that he will not produce them without a court order.”
1O
(Decl. Haulk, Exh. 4).
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Mr. Haulk raised the issue a third time in a November 24, 2019 e—mail:
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“I
have repeatedly asked vou to amend your responses to comply with
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CCP 2031.210 and state that all responsive documents have or will be
produced. You have refused to even respond to this issue. Has your
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client agreed to produce all responsive documents in response to each
15 request (excluding those with specifically stated objections)? If so, will he
aqree to amend his response to each request for production to
16 comply with CCP 2031.210? As to those with objections, will you
identify the documents that are being withheld on the basis of the
17
obiections?”
18
(Decl. Haulk, Exh. 6).
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The Owner met and conferred‘in good faith in an effort to resolve this dispute. The
20 Owner’s
Contractor ignored the letters and e-mail.
21
2. The Contractor Refused, And Continues To RefuseLTo Search For And
22 Produce Responsive Documents.
23 The Contractor opposes this motion based on the claim that he searched for and
24 produced all responsive documents (except for records withheld on the basis of
25 “financial privacy”) and made them available to the Owner for inspection and copying.
26 This is false and a bad-faith arqument. In reality, and as reflected in the meet and
27 confer correspondence, the Contractor refused to search his records and refused to
28 produce a complete project filefor inspection and copying. Mr. Kelly only offered to allow
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Mr. Haulk to set up an appointment to view an incomplete production and, at the same
time, he refused to provide a complete production.
As background, the Contractor’s 57-page production omitted critical project
records, including those that the Contractor is required to “make and keep” under
Business and Professions Code section 71 1 1.As discussed above, Mr. Haulk requested
that Mr. Kelly provided amended responses to verify that the Contractor had conducted a
diligent search and inquiry and produced all responsive documents in his possessiOn
custody and control.
Mr. Kelly refused and claimed the requests were burdensome and unrelated to the
10 legal issues in dispute: _
11 “I
have conferred with my client and he remains open and- invites you (or
personnel from your office) to setup an appointment to view information
12
you believe would ordinarily be found in a contractor’s project file at my
13
client office; however, my client is not interested in wastinq his time for
several days lookinq for every sinqle piece of paper concerninq this
14 project when the leqal issues primarily onlv concern: A. Mr. Paycheck’s
$33,000 claim for a balance owing; and B. Mr. Sarna’s claim that the fire
15 sprinklers did not work or were not installed properly.” [Emphasis Added].
16 (Decl. Haulk, Exh. 5) [Emphasis Added].
17 Notably, the Contractor supports his Opposition through a selective, partial, and
18 misleading quotation from this sentence. The Contractor provides the court with the first
19 portion of this sentence, an offer to set up an appointment to view filematerials, but he
20 mg the second portion (emphasized), which states that the Contractor lifln_ot
21 produce a complete job file at the proposed appointment.
22 Mr. Kelly also complained that the document requests were a “data-dump” and
23 stated that the Contractor was not interested in recreating his entire job file because it
24 would take undue time, energy, and expense:
25 “This is a data-dump request for “All Documents” to be produced and
my client is not interested in the undue time; enerqv, expense to of re-
26
creatinq his entire file materials. However, he is willing to (actually
27
already has) produce(d) specifically responsive documents requested.”
[Emphasis Added].
28 (Decl. Haulk, Exh. 5).
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In summary, Mr. Kelly admitted that the Contractor failed and refused to conduct a
diligent search and inquiry for responsive documents. This refusal was based on an
assertion that the requests required “undue” time, energy, and expense, and were
unrelated to the legal issues in dispute. (Decl. Haulk, Exh. 5). The Contractor, who
brought this action, did not want to spend what he believed would take “several days” to
Search his business records. (/d.)
The scope of discovery is broad, and the Owner is entitled to inspect and copy all
documents that are admissible in evidence or reasonably calculated to lead to the
discovery of admissible evidence. (CCP § 2017.010; Williams v. Superior Court (2017) 3
10 Cal. 5th 531, 541). The Contractor was required to conduct a diligent search and inquiry
11 for all responsive documents and to produce all responsive documents for inspection and
12 copying. (CCP §§ 2031 .210-230, 2031.280).
13 The Contractor failed and refused to conduct a diligent search and inquiry for
14 responsive documents. The Contractor failed to assert, and therefore waived, his
15 objections based on burden and the scope of discovery. (Stadish v. Sup. Ct. (1999) 71
Cal.App.4th 1130, The Contractor failed present any evidence Opposition
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16 1141). to in his
17 to support those waived objections. Further, and to be clear, the Contractor offered
18 to allow Mr. Haulk to view the entire project file. However, ifthe Contractor truly has
1'9 compiled a complete production, the Court should order him to bring the documents to
20 the hearing for inspection and copying.
21 3. The Contractor’s Obiections To Requests for Production Numbers 1. 5, and 1O
Are Meritless and Unsupported bv Evidence.
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23 The Contractor objected to Request for Production numbers 1, 5, and 1—0 based on
24 “financial privacy”. In his Opposition, the Contractor has failed to provide any evidentiary
25 support for his privacy objection and, instead, relies exclusively on a string-citation for the
26 general proposition that there is a right to financial privacy in the State of California. The
27 Contractor has failed to carry his burden and the court should overrule the Contractor’s
28 objections.
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REP-LY TO OPPOSITION TO MOTION TO COMPEL
A party that raises an objection to discovery bears the burden support the
objection with evidence. (Coy v. Sup. Ct. (1962) 58 Cal. 2d 210, 220-221). An objection
based on “privilege” must contain a factual description of the documents being withheld
including, potentially, a privilege log. (CCP § 2031 .240). A party asserting a claim of
privacy must present evidence to establish the privacy interest, the extent of the privacy
interest, and the seriousness of the prospective invasion, and those factors must then be
balanced against the countervailing interests of the party seeking discovery. (Williams v.
Superior Court (2017) 3 Ca|.5th 531, 552—553).
The Contractor has failed to describe what documents are being withheld on the
1O basis of financial privacy. The Contractor has failed to produce evidence to support his
11 objection based on financial privacy. This would, of course, require the Contractor to
12 produce actual evidence to identify the documents being withheld, establish the privacy
13 interest, and establish the seriousness of the invasion. The Contractor has also failed to
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14 explain why he has not produced a privilege log, as requested in Mr. Haulk’s November
15 18, 2019 letter, or why Mr. Haulk’s proposal that he redact sensitive financial information
16 (account numbers and social security numbers) would be insufficient to protect privacy
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17 interests. (Decl. Haulk, 1] 6, Exh. 4).
18 To the extent the Contractor has a privacy interest in the withheld documents, it is
19 outweighed by the Owner’s interest in civil discovery. The Contractor has shed to recover
20 compensation for labor, services, and materials performed on a time and materials basis
21 to a construction project. The Owner has filed a cross-complaint for, among other
22 damages, fraudulent and inflated billings. The requested documents and information go
23 the the very heart of this construction dispute.
24 Further, the limited documents the Contractor has produced to date show that the
25 Owner was billed for auto repairs, car insurance, and payments for a “Total Rewards
26 Card”, all of which are totally unrelated to the project. The invoices, premium payments,
27 and credit card statements would support the fraudulent nature of the charges. The
28 Owner is entitled to discover those documents, and-all of the other requested documents
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showing the work supplied to the project, and the cost of the work supplied to the project.
B. Special Interroqatories
1. The Contractor Failed to Obiect to Special lnterroqatorv Numbers 17 and 25.
Special Interrogatory numbers 17 and 25 ask the Contractor to identify fhe parties
who performed work on the project, to provide the contact information for those parties,
and to state the amount of compensation he was charged for work on the project. The
Contractor has refused to provide complete responses, including contact information and
the cost of work. In his Separate Statement, the Contractor claims that he isnot required
to respond to Special Interrogatory numbers 17 and 25 because of financial privacy. 3113
10 Contractor did not obiectjto Special lnterroqatorv numbers 17 and 25 based on
11 financial privacy. The financial privacy objection was waived and is unsupported by an
12 evidence. (Stadish, 71 Cal.App.4th at 1141).
13 2. The Contractofs Obiections to Special lnterroqatorv Numbers 18 and 26 Are
Meritless.
14
15 Special Interrogatory numbers 18 and 26 request the total amount of
16 compensation that the Contractor paid to any person for the performance of work and
17 labor on the project. The Contractor has refused to respond based on the assertion of
18 “financial privacy". The Contractor is suing to recover compensation based the cost and
19 value of work supplied to the project. The Owner is suing to recover compensation for
20 billing fraud and inflated invoices. The Contractor cannot reasonably refuse to identify the
2‘1
cosfs incurred to supply work on the project which are, at root, the basis of its affirmative
22 claims against the Owner. The Contractor has failed to support its objection with
23 evidence. The Owner’s right to civildiscovery outweighs any privacy interest.
24 3. The Contractor’s Obiections to Special lnterroqatorv Numbers 22 and 57 Are
Meritless.
25
26 Special Interrogatory Numbers 22 and 57 ask the Contractor to identify documents
27 related to work on the project and the subcontractors who performed work on the project.
28 In his Opposition, the Contractor claims that he agreed to make the records available to
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the Owner for inspection. This is false. Moreover, and ifthe Contractor believed the
interrogatory required the preparation of a compilation, abstract, audit, or summary of
documents, the Contractor was required to respond in compliance with CCP §2030.230.
4. The Contractor Concedes That His Response to Special Interroqatorv 58 Is
Deficient.
Special Interrogatory 58 asks the Contractor to identify his communications with
the Owner. The Contractor responded, without objection, that he was “working” to
determine if there were any responsive communications because he ordinarily deletes
older communications. In his separate statement, the Contractor concedes that the
1O response was inadequate and mUst be amended. The interroqatorv was served nearly
11 six months ago. The Contractor has had sufficient time to respond to this interrogatory.
12 The Contractor is obstructing discovery.
13 ll.OBJECTIONS TO REQUESTS FOR JUDICIAL NOTICE
14 The Contractor has a lengthy of history of discovery abuse in San Mateo Superior
15 Court, and his misconduct has resulted in a wide variety of sanctions. These sanctions
16 include monetary sanctions for his failure to produce payroll records in construction
17 litigation with a homeowner and terminating sanctions for his failure to respond to special
18 interrogatories. Requests for Judicial Notice numbers 1-4 are orders and filings reflecting
19 past monetary and terminating sanctions. The Contractor has objected that these orders
20 and filings improper character evidence under Evidence Code 1101.
21 These orders and filings are not submitted to establish the Contractor’s
22 “character”. They are submitted as evidence of the Contractor’s knowledge of his
23 obligations under the Civil Discovery Act. The Contractor, with full knowledge of those
24 obligations, has made a conscious and strategic decision to refuse to comply with valid
25 discovery requests. The court should consider these orders in determining whether the
26 Contractor and his counsel have acted with “substantial justification” in responding to
27 written discovery and opposing this Motion.
28 ///
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REPLY TO OPPOSITION TO MOTION TO COMPEL
Ill.SANCTIONS
The Owner reSpectfully requests that the Court grant this Motion to Compel and
award monetary sanctions in an amount no less than $6,650.
Dated: January 30, 2020 -
RAGGHIANTI FREITAS LLP
MATTHEW A. HAULK
Attorneys for Defendants
PUNIT K. SARNA and PUJA SARNA
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Preview
MATTHEW A. RAGGHIANTI 1101 Fifth HAULK FREITAS Avenue, Suite (SBN: LLP 100 272457) WW 3’” Efectmnicaliy 1/30/2020 5m Supine: Emit ctudau'u. County ell San Rafael, California 94901 Telephone: (415) 453-9433 Facsimile: (415)453-8269 Attorney for Defendants PUNIT K. SARNA and PUJA SARNA SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN MATEO 10 LOUIS PAYCHECK, CASE NO.: 19C|V02595 11 Plaintiff, REPLY TO OPPOSITION T0 MOTION 12 TO COMPEL vs. 13 DATE: February 6, 2020 PUNIT K. SARNA, et a|., TIME: 9:00 a.m. 14 DEPT.: 1, Courtroom 4C Defendants. JUDGE: Honorable Leland Davis, III 15 16 Complaint Filed: May 10, 2019 AND RELATED CROSS-ACTION. Trial Date: Not set. 17 18 Defendant and Cross-Complainant Punit Sarna (the “Owner”) submits this reply in 19 response to Plaintiff and Cross—Defendant Louis Paycheck’s (the "Contractor”) Opposition 20 to the Owner’s Motion to Compel. 21 I.INTRODUCTION 22 The Contractor refused to search for and produce documents in response to 23 requests for production and he has refused to provide full and complete responses to 24 special interrogatories. The Owner brought this Motion to Compel. The Contractor has 25 opposed the motion on three separate grounds: (1) the Owner’s failure to meet and 26 confer regarding requests for production ofdocuments, (2) the Contractor’s compliance 27 with Requests for Production, Set One, and (3) an assertion of "financial privacy.” The 28 Contractor’s arguments in opposition are legally and factually meritless. 1 REPLY TO OPPOSITION TO MOTION TO COMPEL The Contractor claims that the Owner only met and conferred regarding Requests for Production 1, 5, and 10. This is false. The Owner’s counsel, Matthew Haulk, sent two letters and an e—mail regarding the Contractor’s general failure to comply with CCP § 2031 .210 in response to each request for production, and his failure to produce all responsive documents in his possession, custody, and control for inspection and copying. The Contractor’s counsel, Richard Kelly, ignored the issue. (Decl. Haulk, Exh. 2, 4, and ‘ 6). The Contractor claims that he complied with Requests for Production, Set One, by offering to produce all responsive records for inspection and copying at the Contractor’s 1O office. This is false. In a November 22, 2019 meet and confer letter, Mr. Kelly offered to 11 allow Mr. Haulk to view an incomplete production of documents; Critically, and in the 12 same sentence containing this “offer”, Mr. Kelly stated that the Contractor refused to 13 conduct a search for responsive documents and refused to recreate his file materials 14 forthe project. (Decl. Kelly, Exh. A; Decl. Haulk, Exh. Exh. 5). 15 In his Opposition and throughout his Separate Statement, the Contractor has only 16 quoted the first part of this sentence, which contains an offer to view a job file. Without 17 giving any indication of a partial quotation, the Contractor has omitted the second part of 18 this sentence, which contains the highly relevant qualifying statement that the production 19 would be incomplete because the Contractor refused to search for responsive 20 documents. There would be littlebenefit to a partial production, which is why Mr. Haulk 21 responded with a proposal forthe Contractor to prepare the responsive documents, and 22 for the Owner to pay for the responsive documents to be copied. (Decl. Haulk, Exh. 6). 23 Mr. Kelly ignored the offer. I 24 The Contractor claims that he is not required to produce project records or 25 information relating to work or the cost of work on the project because of “financial 26 privacy”. The Contractor did not assert this objection in response to special interrogatory 27 numbers 17 and 25 and therefore waived it.Where the Contractor did assert this 28 objection, he has failed to identify or describe the documents being withheld, he has 2 REPLY TO OPPOSITION TO MOTION TO COMPEL failed to produce any evidence to support the objection, and he has failed to explain why the Owner’s proposal for redactions to social security numbers and account numbers is insufficient to protect any privacy interest. The Owner’s interest in the documents and information at—issue in this Motion outweigh any privacy interest. The work and cost of work is central to this construction litigation, where the Contractor has sued to recover compensation for work, and the Owner has sued to recover compensation for fraudulent and inflated billings. The Court should grant this Motion to Compel. The Contractor and his attorney havé abused the discovery process and failed to meet and confer in good faith. The court 1O should award sanctions of $6,650. (Supplemental Declaration of Matthew A. Haulk). 11 A. Request for Production of Documents. 12 1. The Owner Met And Conferred Before Brinqinq This Motion To Compel. 13 The Contractor opposes this Motion on the ground that, “[t]he moving party did not 14 fully and properly meet and confer: raising 3 document request issues by confer but 15 moving in this motion about 18 document requests [sic.]". This is simply false. 16 All of Contractor’s responses to Requests for Production, Set One, violated CCP 17 section 2031 .210 and did not clearly state that the Contractor had produced all 18 responsive documents in his possession, custody, and control. Mr. Haulk raised this 19 issUe on three occasions during the meet and confer process. Mr; Kelly ignored it 20 entirely. 21 Mr. Haulk raised the issue in a November 6, 2019 meet and confer letter: 22 “The responses to requests for production identify responsive documents but do not contain a statement of compliance as required 23 by CCP § 2031.210. This is concerning in light of the fact that the document production is missing most documents one would ordinarily find in a 24 contractor’s project file. 25 For example, the project file is missing the records that Mr. Paycheck was 26 required to create and keep under Business and Professions Code section 701 1. Please amend the responses to include statements of 27 compliance that are consistent with CCP § 2031 .210. I need to confirm that Mr. Paycheck has conducted a diliqent search and inquiry of his 28 documents records and produced all responsive in his possession. 3 REPLY TO OPPOSITION TO MOTION TO COMPEL custody. and control.” (Decl. Haulk, Exh. 2). Mr. Haulk raised the issue again in a November 11, 2019 meet and confér letter: “Your client’s responses to Requests for Production. Set One are vaque, uncertainl and do not comply with Code of Civil Procedure section 2031.210. Rather that state that he will produce all responsive documents, Mr. Paycheck has merely identified documents that he is apparently willing to produce in response to each request. You must amend vour responses to comply with CCP section 2031 .210 bv no later than November 22, 2019. If your refuse to do so, | must assume that your client intends to withhold responsive documents and that he will not produce them without a court order.” 1O (Decl. Haulk, Exh. 4). 11 Mr. Haulk raised the issue a third time in a November 24, 2019 e—mail: 12 “I have repeatedly asked vou to amend your responses to comply with 13 CCP 2031.210 and state that all responsive documents have or will be produced. You have refused to even respond to this issue. Has your 14 client agreed to produce all responsive documents in response to each 15 request (excluding those with specifically stated objections)? If so, will he aqree to amend his response to each request for production to 16 comply with CCP 2031.210? As to those with objections, will you identify the documents that are being withheld on the basis of the 17 obiections?” 18 (Decl. Haulk, Exh. 6). 19 The Owner met and conferred‘in good faith in an effort to resolve this dispute. The 20 Owner’s Contractor ignored the letters and e-mail. 21 2. The Contractor Refused, And Continues To RefuseLTo Search For And 22 Produce Responsive Documents. 23 The Contractor opposes this motion based on the claim that he searched for and 24 produced all responsive documents (except for records withheld on the basis of 25 “financial privacy”) and made them available to the Owner for inspection and copying. 26 This is false and a bad-faith arqument. In reality, and as reflected in the meet and 27 confer correspondence, the Contractor refused to search his records and refused to 28 produce a complete project filefor inspection and copying. Mr. Kelly only offered to allow 4 REPLY TO OPPOSITION TO MOTION TO COMPEL Mr. Haulk to set up an appointment to view an incomplete production and, at the same time, he refused to provide a complete production. As background, the Contractor’s 57-page production omitted critical project records, including those that the Contractor is required to “make and keep” under Business and Professions Code section 71 1 1.As discussed above, Mr. Haulk requested that Mr. Kelly provided amended responses to verify that the Contractor had conducted a diligent search and inquiry and produced all responsive documents in his possessiOn custody and control. Mr. Kelly refused and claimed the requests were burdensome and unrelated to the 10 legal issues in dispute: _ 11 “I have conferred with my client and he remains open and- invites you (or personnel from your office) to setup an appointment to view information 12 you believe would ordinarily be found in a contractor’s project file at my 13 client office; however, my client is not interested in wastinq his time for several days lookinq for every sinqle piece of paper concerninq this 14 project when the leqal issues primarily onlv concern: A. Mr. Paycheck’s $33,000 claim for a balance owing; and B. Mr. Sarna’s claim that the fire 15 sprinklers did not work or were not installed properly.” [Emphasis Added]. 16 (Decl. Haulk, Exh. 5) [Emphasis Added]. 17 Notably, the Contractor supports his Opposition through a selective, partial, and 18 misleading quotation from this sentence. The Contractor provides the court with the first 19 portion of this sentence, an offer to set up an appointment to view filematerials, but he 20 mg the second portion (emphasized), which states that the Contractor lifln_ot 21 produce a complete job file at the proposed appointment. 22 Mr. Kelly also complained that the document requests were a “data-dump” and 23 stated that the Contractor was not interested in recreating his entire job file because it 24 would take undue time, energy, and expense: 25 “This is a data-dump request for “All Documents” to be produced and my client is not interested in the undue time; enerqv, expense to of re- 26 creatinq his entire file materials. However, he is willing to (actually 27 already has) produce(d) specifically responsive documents requested.” [Emphasis Added]. 28 (Decl. Haulk, Exh. 5). 5 REPLY TO OPPOSITION TO MOTION TO COMPEL In summary, Mr. Kelly admitted that the Contractor failed and refused to conduct a diligent search and inquiry for responsive documents. This refusal was based on an assertion that the requests required “undue” time, energy, and expense, and were unrelated to the legal issues in dispute. (Decl. Haulk, Exh. 5). The Contractor, who brought this action, did not want to spend what he believed would take “several days” to Search his business records. (/d.) The scope of discovery is broad, and the Owner is entitled to inspect and copy all documents that are admissible in evidence or reasonably calculated to lead to the discovery of admissible evidence. (CCP § 2017.010; Williams v. Superior Court (2017) 3 10 Cal. 5th 531, 541). The Contractor was required to conduct a diligent search and inquiry 11 for all responsive documents and to produce all responsive documents for inspection and 12 copying. (CCP §§ 2031 .210-230, 2031.280). 13 The Contractor failed and refused to conduct a diligent search and inquiry for 14 responsive documents. The Contractor failed to assert, and therefore waived, his 15 objections based on burden and the scope of discovery. (Stadish v. Sup. Ct. (1999) 71 Cal.App.4th 1130, The Contractor failed present any evidence Opposition M 16 1141). to in his 17 to support those waived objections. Further, and to be clear, the Contractor offered 18 to allow Mr. Haulk to view the entire project file. However, ifthe Contractor truly has 1'9 compiled a complete production, the Court should order him to bring the documents to 20 the hearing for inspection and copying. 21 3. The Contractor’s Obiections To Requests for Production Numbers 1. 5, and 1O Are Meritless and Unsupported bv Evidence. 22 23 The Contractor objected to Request for Production numbers 1, 5, and 1—0 based on 24 “financial privacy”. In his Opposition, the Contractor has failed to provide any evidentiary 25 support for his privacy objection and, instead, relies exclusively on a string-citation for the 26 general proposition that there is a right to financial privacy in the State of California. The 27 Contractor has failed to carry his burden and the court should overrule the Contractor’s 28 objections. 6 _ REP-LY TO OPPOSITION TO MOTION TO COMPEL A party that raises an objection to discovery bears the burden support the objection with evidence. (Coy v. Sup. Ct. (1962) 58 Cal. 2d 210, 220-221). An objection based on “privilege” must contain a factual description of the documents being withheld including, potentially, a privilege log. (CCP § 2031 .240). A party asserting a claim of privacy must present evidence to establish the privacy interest, the extent of the privacy interest, and the seriousness of the prospective invasion, and those factors must then be balanced against the countervailing interests of the party seeking discovery. (Williams v. Superior Court (2017) 3 Ca|.5th 531, 552—553). The Contractor has failed to describe what documents are being withheld on the 1O basis of financial privacy. The Contractor has failed to produce evidence to support his 11 objection based on financial privacy. This would, of course, require the Contractor to 12 produce actual evidence to identify the documents being withheld, establish the privacy 13 interest, and establish the seriousness of the invasion. The Contractor has also failed to ‘ 14 explain why he has not produced a privilege log, as requested in Mr. Haulk’s November 15 18, 2019 letter, or why Mr. Haulk’s proposal that he redact sensitive financial information 16 (account numbers and social security numbers) would be insufficient to protect privacy I 17 interests. (Decl. Haulk, 1] 6, Exh. 4). 18 To the extent the Contractor has a privacy interest in the withheld documents, it is 19 outweighed by the Owner’s interest in civil discovery. The Contractor has shed to recover 20 compensation for labor, services, and materials performed on a time and materials basis 21 to a construction project. The Owner has filed a cross-complaint for, among other 22 damages, fraudulent and inflated billings. The requested documents and information go 23 the the very heart of this construction dispute. 24 Further, the limited documents the Contractor has produced to date show that the 25 Owner was billed for auto repairs, car insurance, and payments for a “Total Rewards 26 Card”, all of which are totally unrelated to the project. The invoices, premium payments, 27 and credit card statements would support the fraudulent nature of the charges. The 28 Owner is entitled to discover those documents, and-all of the other requested documents 7 REPLY TO OPPOSITION TO MOTION TO COMPEL showing the work supplied to the project, and the cost of the work supplied to the project. B. Special Interroqatories 1. The Contractor Failed to Obiect to Special lnterroqatorv Numbers 17 and 25. Special Interrogatory numbers 17 and 25 ask the Contractor to identify fhe parties who performed work on the project, to provide the contact information for those parties, and to state the amount of compensation he was charged for work on the project. The Contractor has refused to provide complete responses, including contact information and the cost of work. In his Separate Statement, the Contractor claims that he isnot required to respond to Special Interrogatory numbers 17 and 25 because of financial privacy. 3113 10 Contractor did not obiectjto Special lnterroqatorv numbers 17 and 25 based on 11 financial privacy. The financial privacy objection was waived and is unsupported by an 12 evidence. (Stadish, 71 Cal.App.4th at 1141). 13 2. The Contractofs Obiections to Special lnterroqatorv Numbers 18 and 26 Are Meritless. 14 15 Special Interrogatory numbers 18 and 26 request the total amount of 16 compensation that the Contractor paid to any person for the performance of work and 17 labor on the project. The Contractor has refused to respond based on the assertion of 18 “financial privacy". The Contractor is suing to recover compensation based the cost and 19 value of work supplied to the project. The Owner is suing to recover compensation for 20 billing fraud and inflated invoices. The Contractor cannot reasonably refuse to identify the 2‘1 cosfs incurred to supply work on the project which are, at root, the basis of its affirmative 22 claims against the Owner. The Contractor has failed to support its objection with 23 evidence. The Owner’s right to civildiscovery outweighs any privacy interest. 24 3. The Contractor’s Obiections to Special lnterroqatorv Numbers 22 and 57 Are Meritless. 25 26 Special Interrogatory Numbers 22 and 57 ask the Contractor to identify documents 27 related to work on the project and the subcontractors who performed work on the project. 28 In his Opposition, the Contractor claims that he agreed to make the records available to 8 REPLY TO OPPOSITION TO MOTION TO COMPEL the Owner for inspection. This is false. Moreover, and ifthe Contractor believed the interrogatory required the preparation of a compilation, abstract, audit, or summary of documents, the Contractor was required to respond in compliance with CCP §2030.230. 4. The Contractor Concedes That His Response to Special Interroqatorv 58 Is Deficient. Special Interrogatory 58 asks the Contractor to identify his communications with the Owner. The Contractor responded, without objection, that he was “working” to determine if there were any responsive communications because he ordinarily deletes older communications. In his separate statement, the Contractor concedes that the 1O response was inadequate and mUst be amended. The interroqatorv was served nearly 11 six months ago. The Contractor has had sufficient time to respond to this interrogatory. 12 The Contractor is obstructing discovery. 13 ll.OBJECTIONS TO REQUESTS FOR JUDICIAL NOTICE 14 The Contractor has a lengthy of history of discovery abuse in San Mateo Superior 15 Court, and his misconduct has resulted in a wide variety of sanctions. These sanctions 16 include monetary sanctions for his failure to produce payroll records in construction 17 litigation with a homeowner and terminating sanctions for his failure to respond to special 18 interrogatories. Requests for Judicial Notice numbers 1-4 are orders and filings reflecting 19 past monetary and terminating sanctions. The Contractor has objected that these orders 20 and filings improper character evidence under Evidence Code 1101. 21 These orders and filings are not submitted to establish the Contractor’s 22 “character”. They are submitted as evidence of the Contractor’s knowledge of his 23 obligations under the Civil Discovery Act. The Contractor, with full knowledge of those 24 obligations, has made a conscious and strategic decision to refuse to comply with valid 25 discovery requests. The court should consider these orders in determining whether the 26 Contractor and his counsel have acted with “substantial justification” in responding to 27 written discovery and opposing this Motion. 28 /// 9 REPLY TO OPPOSITION TO MOTION TO COMPEL Ill.SANCTIONS The Owner reSpectfully requests that the Court grant this Motion to Compel and award monetary sanctions in an amount no less than $6,650. Dated: January 30, 2020 - RAGGHIANTI FREITAS LLP MATTHEW A. HAULK Attorneys for Defendants PUNIT K. SARNA and PUJA SARNA 1O 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1O REPLY TO OPPOSITION TO MOTION TO COMPEL