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GARRY L. MONTANARI, State Bar No. 89790
WESLEY S. WENIG, State Bar No. 162351
JOHN H. MOON, State Bar No. 253811
MICHAELIS, MONTANARI & JOHNSON, P.C
4333 Park Terrace Dr. #110
Westlake Village, CA 91361 ILED
Telephone No (818) 865-0444 SAN MATEO COUNT Y
Attorneys for defendants, STEPHEN MAGEE and JAN 03 2020
SAC AERO FLYING CLUB, INC.
Crerkipty
\F V\
SUPERIOR COURT OF THE STATE OF CALIFORNIA
|_—___
iB cIV—01901
COUNTY OF SAN MATEO
& ue Application
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BRYAN TRUJILLO and CINDY
TRUJILLO.
Case No.: 18CIV01901
il ANAM
Honorable Robert D. Foiles; Dept. 21
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EX PARTE APPLICATION FOR
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Plaintiffs, ORDER SHORTENING TIME FOR
HEARING AND GIVING NOTICE OF
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VS. DEFENDANTS’ MOTION TO
COMPLETE DISCOVERY:
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DECLARATION OF GARRY L
STEPHEN MAGEE, SAC AERO FLYING MONTANARI IN SUPPORT
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CLUB, INC. and DOES 1 - 50 THEREOF
Date: January3, 2020
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Defendants. Time: 2:00 p.m.
Dept.: Law and Motion
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Complaint filed: April 17, 2018
19 Trial Date: February 10, 2020
20 TO THE COURT, ALL PARTIES AND THEIR ATTORNEYS OF RECORD
21 PLEASE TAKE NOTICE that on January 3, 2020, at 2:00 p.m., in the Law and Motion
22 Department of the above-entitled court located at 400 County Center, Redwood City, CA 94063
23 defendants STEPHEN MAGEE and SAC AERO FLYING CLUB, INC. (collectively referred to as
24 “Defendants”) through their attorneys of record, respectfully submits its Ex Parte Application
25 (“Application”) For Order Shortening the Time to hear Defendants’ Motion to Complete Discovery
26 (“Motion”).
27 The Court has authority to grant Defendants’ Application, as further stated in the
28 memorandum of points and authorities submitted in support of this Application. This Application
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EX PARTE APPLICATION FOR ORDER SHORTENING TIME FOR HEARING AND GIVING NOTICE OF
DEFENDANTS’ MOTION TO COMPLETE DISCOVERY; DECLARATION OF MONTANARI
is made on the basis that good cause exists to shorten the time to hear Defendants’ Motion since
there were no available dates in the court’s calendaring system to hear the matter before trial and
since Defendants will be deprived of substantial discovery properly propounded upon Plaintiffs.
Trial is scheduled for February 10, 2020, and a regularly noticed motion concerning a
discovery issue could not be heard until February 26, 2020.
Ori December 31, 2019, counsel for Defendants sent an email notice to plaintiffs’ counsel
in this action, providing the date, time, location, and purpose of this Application. Counsel sent notice
as follows:
Michael S. Danko, Esq. and Shawn Miller, Esq.
Danke Meredith
10 333 Twin Dolphin Dr., Suite 145
Redwood Shores, CA 94065
11 (650) 453-3600
Email: mdanko@dankolaw.com; smiller@dankolaw.com
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13 Plaintiffs’ counsel indicated that they were appearing and opposing Defendants’ Application.
14 This Application is based upon the attached memorandum of points and authorities, the
15 declaration of Garry L. Montanari, all pleadings and papers on file herein, all matters of which this
16 Court may take judicial notice, and such evidence and argument as may be presented at any hearing
17 on this application.
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19 DATED: January 2, 2020 MICHAELIS, MONTANARI & JOHNSON
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21 By
GARR MONTANA
22 Attorne!for Defendants STEPHEN MAGEE
and SAC AERO FLYING CLUB, INC.
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EX PARTE APPLICATION FOR ORDER SHORTENING TIME FOR HEARING AND GIVING NOTICE OF
|PEFENDANTS’ MOTION TO COMPLETE DISCOVERY; DECLARATION OF MONTANARI
MEMORANDUM OF POINTS AND AUTHORITIES
I INTRODUCTION
This lawsuit arises out of an aircraft accident which took place near the approach end of
Runway 12 at Half Moon Bay Airport on November 18, 2016. Defendant STEPHEN MAGEE
(“Magee”) was piloting a single-engine aircraft owned by defendant SAC AERO FLYING CLUB,
INC. (“Sac Aero”) (Magee and Sac Aero are collectively referred to as “Defendants”) when he
encountered wind shear turbulence while he was on approach for landing. The turbulence caused
aloss of control at low altitude and Magee was forced to make an emergency landing which resulted
in damage to the plaintiffs’ property. Magee’s wife, a passenger in the aircraft, suffered fatal
10 injuries.
11 Plaintiffs BRYAN TRUJILLO and CINDY TRUJILLO (collectively referred to as
12 “Plaintiffs”) filed their Complaint on or about April 17, 2018. Plaintiffs-in-intervention ALLIED
13 PROPERTY AND CASUALTY INSURANCE COMPANY’s and AMCO INSURANCE
14 COMPANY’s (collectively referred to as “Plaintiffs’ Insurer”) filed a motion to intervene, which the
15 court granted and, on or about February 21, 2019, Plaintiffs’ Insurer filed their Complaint in
16 Intervention. On or about March 21, 2019, Plaintiffs’ Insurer filed their First Amended Complaint
17 in Intervention. Plaintifis’ Insurer has reached a settlement with Defendants.
18 Defendants propounded a number of sets of discovery upon Plaintiffs, both individually and
19 collectively. Plaintiffs, however, failed to provide any timely responses for discovery propounded
20 upon plaintiff CINDY TRUJILLO. Additionally, Plaintiffs also failed produce sufficient documents
21 as to discovery propounded upon BRY AN TRUJILLO, only asserting boilerplate objections. Finally,
22 Plaintiffs produced redacted documents of a calendar book without producing substantial support
23 for its redaction. Consequently, Defendants engaged in lengthy meet and confer processes, in an
24 attempt to informally resolve the matter. The meet and confer efforts were unsuccessful.
25 Defendants request that the Court shorten time to hear its Motion since Defendants will be
26 deprived of discovery responses that should be afforded to them, under the Civil Discovery Act.
27 II. RELEVANT PROCEDURAL HISTORY
28 On related discovery matters, Defendants attempted to secure a hearing date before trial
3.
EX PARTE APPLICATION FOR ORDER SHORTENING TIME FOR HEARING AND GIVING NOTICE OF
JEFENDANTS’ MOTION TO COMPLETE DISCOVERY; DECLARATION OF MONTANARI
but was unable to do so due to the San Mateo Court’s calendaring system. The calendaring system
currently only allows approximately eight (8) motions to be heard per calendar day and there is no
reservation system in place to secure any particular date that is shown on the San Mateo Court
System’s calendar of available dates. Moreover, the available dates shown on the calendar are not
always accurate for various reasons, according to the Court’s law and motion department.
On or about October 25, 2019, Defendants submitted motions to be heard on December 9,
2019 since that was the earliest available date shown on the calendaring system. However, the
calendaring system rejected Defendants’ request.
Thus, Defendants have made a prior attempt to have various motions heard before trial, but
10 was unable to do so.
11 Tl. LEGAL ARGUMENT
12 A THE COURT HAS AUTHORITY TO SHORTEN TIME
13 This Court has statutory and inherent authority to grant Defendants’ Ex Parte Application.
14 Code of Civil Procedure, section 128(a)(3) provides that “[e]very court shall have the power to ...
15 provide for the orderly conduct of proceedings before it, or its officers.” (Code of Civ. Proc.
16 §128(a)(3).) Moreover, Code of Civil Procedure, section 1005(b) states that the Court “may prescribe
17 a shorter time” for the hearing on any motion showing good cause. (Code of Civ. Proc. §1005(b).)
18 California Rules of Court, Rule 3.1300(b) further provides that the court, on its own motion or on
19 application for order shortening time supported by a declaration showing good cause, may prescribe
20 shorter times for the filing and service of papers than the times specified by Code of Civil Procedure,
21 section 1005(b). It is also well settled by our high court that,
22 “a trial court has the power to exercise a reasonable control over all
23 proceedings connected with the litigation before it. Such power
24 necessarily exists as one of the inherent powers of the court and such
25 power should be exercised by the courts in order to insure that the
26 orderly administration of justice.”
27 (Hayes v. Superior Court (1940) 16 Cal.2d 260, 264.)
28 * Additionally, the court has discretion to have a motion concerning discovery heard. (Code
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EX PARTE APPLICATION FOR ORDER SHORTENING TIME FOR HEARING AND GIVING NOTICE OF
DEFENDANTS’ MOTION TO COMPLETE DISCOVERY; DECLARATION OF MONTANARI
of Civ. Proc. §2024.050(a).)
Therefore, this Court has the authority to grant Defendants’ Application since good cause (as
shown below and in the attached Declaration of Garry. L. Montanari) is present.
B. GOOD CAUSE EXISTS TO SHORTEN HEARING DATES
In exercising discretion to grant or deny the motion, a court takes the following into
consideration:
“(1) the necessity and reasons for the discovery; (2) the diligence or
lack of diligence of the party seeking the discovery or the hearing of
a discovery motion, and the reasons that the discovery was not
10 completed or that the discovery motion was not heard earlier. (3) Any
11 likelihood that permitting the discovery or hearing the discovery
12 motion will prevent the case from going to trial on the date set, or
13 otherwise interfere with the trial calendar, or result in prejudice to any
14 other party. (4) The length of time that has elapsed between any date
15 previously set, and the date presently set, for the trial of the action.”
16 (Code of Civ. Proc. §2024.050(b)(1-4).)
17 Here, good cause is present since Defendants will be deprived of discovery responses they
18 are entitled to under the Civil Discovery Act if their Ex Parte Application (“Application”) is not
19 granted. There is no limit to file this motion where no responses have been timely served and
20 plaintiffs have failed to produce timely responses for the discovery propounded upon plaintiff
21 CINDY TRUJILLO. (Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007)
22 148 Cal.App.4th 290, 410-411 (“Sinaiko”).) Moreover, Defendants attempted to have related
23 discovery matters heard before trial but the calendaring system did not have any available dates
24 before the commencement of the trial date.
25 Defendants’ lengthy meet and confer efforts demonstrate their good faith and diligence in
26 pursuing the requested discovery, which is also in compliance with Code of Civil Procedure
27 §2016.040. (Code of Civ. Proc. §2016.040.) Indeed, Defendants were not required to meet and
28 confer since plaintiff CINDY TRUJILLO did not produce any responses whatsoever. (Code of Civ.
5.
EX PARTE APPLICATION FOR ORDER SHORTENING TIME FOR HEARING AND GIVING NOTICE OF
DEFENDANTS’ MOTION TO COMPLETE DISCOVERY; DECLARATION OF MONTANARI
Proc. §2030.290;§2030.300; see Sinaiko, supra, 148 Cal.App.4th at 404.) Notwithstanding this,
Defendants engaged in extended meet and confer efforts in order to informally resolve this matter.
There is little to no likelihood that shortening the hearing date as to Defendants’ Motion
will prevent the case from going to trial on the set date or otherwise interfere with the trial calender.
This is simply a matter of hearing Defendants’ Motion as to Plaintiffs’ failure to timely respond,
produce sufficient discovery responses, and produce substantial support for their redactions.
Finally, the date previously set for trial was November4, 2019. The date presently set for trial
is February 10, 2020. In October, Defendants filed related discovery motions, however the requested
December date was rejected by the calendaring system. The current available date to hear
10 Defendants’ Motion is February 26, 2020. If Defendants’ request is granted, then the Motion will
11 be heard before trial with ample time for Plaintiffs to produce sufficient responses.
12 Cc PREJUDICE
13 No prejudice will result to Plaintiffs if the Court grants Defendants’ Application, however,
14 prejudice will resultto Defendants if time is not shortened to hear its Motion. Plaintiffs have failed
15 to provide sufficient and/or timely responses to Defendants’ discovery requests. Thus, if Defendants’
16 Motion is not heard it will be deprived of discovery responses that it is entitled to under the Civil
17 Discovery Act. Inlight of the numerous meetand confers efforts Defendants engaged in, Defendants
18 will be extremely prejudiced since it will be deprived of discovery which should have been provided
19 long ago. There will simply be no prejudice to Plaintiffs since producing the requested discovery will
20 not result in any harm to them, however the same will not be true for Defendants.
21 IV. CONCLUSION
22 ’ For the foregoing reasons, Defendants respectfully requests that the Court grant its ex parte
23 application for order shortening the time to hear its Motion to Complete Discovery.
24 DATED: January 2, 2020 MICHAELIS, MONTANARI & JOHNSON
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26 By:
GARR, MONT.
27 Attorn for Defendants STEPHEN MAGEE
NAI7517\pld\exparte\p-exparte.discovery.1.wpd and SAC AERO FLYING CLUB, INC.
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EX PARTE APPLICATION FOR ORDER SHORTENING TIME FOR HEARING AND GIVING NOTICE OF
JEFENDANTS’ MOTION TO COMPLETE DISCOVERY; DECLARATION OF MONTANARI
DECLARATION OF GARRY L. MONTANARI
I, GARRY L. MONTANARI, declare as follows:
1 Iam an attorney at Jaw duly licensed to practice before all the Courts of the State of
California. I am a partner of the law firm of Michaelis, Montanari & Johnson, counsel of record for
defendants STEPHEN MAGEE and SAC AERO FLYING CLUB, INC. (collectively referred to as
“Defendants”). I have personal knowledge of the matters set forth below and could testify thereto
in any proceeding in this litigation.
2. This declaration is submitted in support of Defendants’ Ex Parte Application for
Order Shortening Time for hearing and giving notice of Defendants’ Motion to Complete Discovery.
10 3 The opposing party is represented by counsel, Michael S. Danko of Danko Meredith.
11 Opposing counsel (“plaintiffs’ counsel”) has been given notice of Defendants’ Application, pursuant
12 to the California Rules of Court.
13 4 On December 31,2019, before 2:00 p.m., our office emailed plaintiffs’ counsel notice
14 of Defendants’ ex parte application. (Attached as Exhibit A is a true and correct copy of the email
15 notice sent to all parties in this matter.) Plaintiffs’ counsel indicated that they were appearing and
16 opposing Defendants’ Application.
17 5 Plaintiffs’ counsel did not agree to stipulate to shorten time for hearing and giving
18 notice of Defendants’ Motion for Leave to Amend its Answer. (Attached as Exhibit B is a true and
19 correct copy of the email showing plaintiffs’ counsel’s refusal to stipulate to advancing the hearing
20 date on Defendants’ Motion.)
21 6 Attached as Exhibit C is a true and correct copy of Defendants’ Motion to Complete
22 Discovery.
23 7 The first available hearing on the San Mateo County Court System to schedule a
24 regularly noticed motion could not be heard until February 26, 2020, which is well past the
25 commencement of trial, which is scheduled to begin on February 10, 2020.
26 8 On or about October 25, 2019, Defendants submitted related discovery motions to
27 be heard on December 9, 2019 since that was the earliest available date shown on the calendaring
28 system. However, the calendaring system rejected Defendants’ request.
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b EX PARTE APPLICATION FOR ORDER SHORTENING TIME FOR HEARING AND GIVING NOTICE OF
JEFENDANTS’ MOTION TO COMPLETE DISCOVERY; DECLARATION OF MONTANARI
9 Plaintiffs have not provided any responses as to the discovery Defendants propounded
served on plaintiff CINDY TRUJILLO. Although not required to do so, Defendants engaged in
lengthy meet and confer efforts to resolve this matter informally. Those efforts were unsuccessful.
Defendants also engaged in meet and confer efforts for insufficient responses produced in connection
with requests for production propounded upon plaintiff BRYAN TRUJILLO, wherein Plaintiff
BRYAN TRUJILLO responded by raising boilerplate objections to each and every request.
Defendants’ meet and confer efforts for that discovery was similarly unsuccessful. Lastly, Plaintiffs
produced a redacted calendar book without providing substantial support for the redactions. Plaintiffs
failed to produce substantial support for the redactions notwithstanding Defendants’ meet and confer
10 requests for such support.
11 10. Defendants were unable to secure a hearing date to have their Motion heard prior to
12 the commencement of trial.
13 il. Irreparable harm will result as if this ex parte application is not granted since
14 Defendants will be permanently deprived of substantial discovery properly propounded upon
15 Plaintiffs.
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17 I declare under penalty of perjury under the laws of the State of California that the foregoing
18 is true and correct.
19 Executed this 2nd day of January, 2020, at Westlake Village, California.
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GARRY L. MOR TANARI
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EX PARTE APPLICATION FOR ORDER SHORTENING TIME FOR HEARING AND GIVING NOTICE OF
IEFENDANTS’ MOTION TO COMPLETE DISCOVERY; DECLARATION OF MONTANARI
® ®
John H. Moon
a
From: John H. Moon
Sent: Tuesday, December 31, 2019 1:09 PM
To: mdanko@dankolaw.com; ‘smiller@dankolaw.com'
Ce: Garry L. Montanari
Subject: Sac Aero - Ex’Parte Applications Notice
Dear Counsel
Please be advised that Defendants Stephen Magee and Sac Aero Club Flying (collectively referred to as “Deferidants”)
will be appearing ex parte at 2:00 p.m. on Friday, January 3, 2020 in the law and motion department of the San Mateo
Superior Courthouse, located at 400 County Center, Redwood City, CA, 94063, regarding advancing the hearing dates for
Defendants’ motions for leave to amend its answer, complete discovery, and withdraw its request for admission
response. Please advise if you will be appearing and/or opposing.
If you have any questions, please do not hesitate to contact me. Thank you
John H. Moon
Michaelis, Montanari & Johnson
4333 Park Terrace Drive, Suite 110
Westlake Village, CA 91361
www.mmilaw.net
This e-mail and any attachments are confidential and also may be privileged. If you are not the named recipient, or have otherwise received this
communication in error, please delete it from your inbox, notify the sender immediately, and do not disclose its contents to any other person, use
them for any purpose, or store or copy them in any medium. Thank you for your cooperation.
& ®
e
ll Exhibit B
John H. Moon
From: John H. Moon
Sent: Monday, December 30, 2019 9:49 AM
To: ‘Shawn Miller’
Ce: ‘Khloe Lee’; Garry L. Montanari ,
Subject: RE: Sac Aero - Stipulation to Advance Hearing Dates
7
Shawn:
Please do not mischaracterize our prior filingattempt. At the time we submitted our filings, the court’s law and motion
calendar listed our requested December hearing dates as being available. We filed the motions with the court, but the
court did not accept our filings, indicating at that time that our requested hearing dates were now unavailable. This was
beyond our control, and | sent an email to Ms. Lee informing her of this. It is unclear whether she forwarded you my
email.
In any event, the motions have been filed and accepted by the court. Our office served the motions on or about
December 20, 2019, which means your office should have received them by now.
mene weet ene
From: Shawn Miller
Sent: Sunday, December 29, 2019 6:29 PM.
To: John H. Moon
Subject: RE: Sac Aero - Stipulation to Advance Hearing Dates
Mr. Moon —
! am traveling for the holiday and, therefore, | have not yet seen the motions you reference. | anticipate returning to the
office and being able to review these motions on January 2, 2020. Undoubtedly the court did not have any hearing dates
available prior to the February 10, 2020 trial given the lateness of your attempt to secure a date. Given my travel, we
will not agree to advancing the hearing date as suggested (to January 16, 2020) as | would have one day to draft
responses to your multiple motions if we did so.
Given your recent behavior of serving but not filing discovery motions, please confirm whether you have actually filed
the motions listed below with the court or have merely served them on us.
Best regards,
Shawn Miller
Danko Meredith
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From: john H. Moon < Moon@ mmilaw.net>
Sent: Friday, December 27, 2019 2:41 PM
To: Khloe Lee ; Shawn Miller
Cc: Garry L. Montanari
Subject: Sac Aero - Stipulation to Advance Hearing Dates
Importance: High
Dear counsel:
-
\ . \
We have scheduled three motions to We ard on February 26, 2020, concerning requesting leave to amend our answer,
withdrawing a request for admission response, and completing discovery. We were unable to schedule a hearing before
the commencement of trial since the court’s calendaring system did not have any available dates. Would plaintiffs be
amenable to stipulating to advancing the hearing dates for the three aforementioned matters to be heard on January
16, 2020? Please let us know by 9:00 a.m. Monday, December 30, 2019. Thank you.
John H. Moon
Michaelis, Montanari & Johnson
4333 Park Terrace Drive, Suite 110
‘
Westlake Village, CA 91361
www.mmijlaw.net
This e-mail and any attachments are confidential and also may be privileged. If you are not the named recipient, or have otherwise received this
communication in error, please delete it from your inbox, notify the sender immediately, and do not disclose its contents to any other person, use
them for any purpose, or store or copy them in any medium. Thank you for your cooperation.
@ @
@
_~.
GARRY L, MONTANARI, State Bar No. 89790 Electronically
WESLEY 8. WENIG, State Bar No. 162351 ‘by Superior
Court of Californta, County of San Mateo
JOHN H. MOON, State Bar No. 253811 ‘ON 12/20/2019
MICHAELIS, MONTANARI & JOHNSON, P.C.
4333 Park Terrace Dr. #110 's/ Wai Shan Lee.
Westlake Village, CA 91361 jeputy Clerk
Telephone No. (818) 865-0444
Attorneys for defendants, STEPHEN MAGEE and
SAC AERO FLYING CLUB, INC.
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SAN MATEO
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BRYAN TRUJILLO and CINDY Case No.: 18CTV01901
12
TRUSILLO, Honorable Robert D. Foiles; it. 21
DEFENDANTS STEPHEN [AGEE
13 Plaintiffs, AND SAC AERO FLYING CLUB,
INC.’S NOTICE OF MOTION AND
14 MOTION TO COMPLETE
DISCOVERY; MEMORANDUM OF
15 POINTS AND AUTHORITIES;
STEPHEN MAGEE, SAC AERO FLYING DECLARATION OF JOHN H. “MOON
16
CLUB, INC, and DOES1 - 50, Date: February 26, 2020
Time: 9:00 a.m.
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Defendants. Dept.: Law and Motion
Complaint filed: April 17, 2018
18 Trial Date: February 10, 2020
19 TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:
20 PLEASE TAKE NOTICE that on February 26, 2020 at 9:00 a.m. or as soon thereafter as
21 the matter may be heard in the Law and Motion Department of the above-entitled Court located at
22 400 County Center, Redwood City, CA 94063, defendants STEPHEN MAGEE and SAC AERO
23 FLYING CLUB, INC. (collectively referred to as “Defendants”) will move this Court for leave to
24 complete discovery, pursuant to Code of Civil Procedure, section 2024.050
25 This Motion will be made upon the ground that meet and confer efforts were unsuccessful
26 and that Defendants diligently attempted to obtain various discovery responses from Plaintiffs, that
27 have asserted boilerplate objections and failedto response to other discovery requests, and will be
28 based upon this notice, the attached memorandum of points and authorities, all papers and records
“le
EFENDANTS’ NOTICE OF MOTION AND MOTION TO COMPLETE DISCOVERY; MEMO PS/AS; DEC.
on file herein, the declaration of John H. Moon, and evidence both oral and documentary, as it may
be presented at the hearing of this motion.
,
DATED: December 20, 2019 MICHAELIS, MONTANARI & JOHNSON
By:
GARRY /|L. MONT,
Attorne for Defendants STEPHEN MAGEE
and SAC AERO FLYING CLUB, INC,
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DEFENDANTS” NOTICE OF MOTION AND MOTION TO COMPLETE DISCOVERY; MEMO PS/AS; DEC.
MEMORANDUM OF POINTS AND AUTHORITIES
I. STATEMENT OF FACTS
A Introduction
This lawsuit arises out of an aircraft accident which took place near the approach end of
Runway {2 at Half Moon Bay Airport on November 18, 2016. Defendant STEPHEN MAGEE
(“Magee”) was piloting a single-engine aircraft owned by defendant SAC AERO FLYING CLUB,
INC. (“Sac Aero”) (collectively referred to as “Defendants”) when he. encountered wind shear
turbulence while he was on approach for landing. The turbulence caused a loss of control at low
altitude and Magee made an emergency landing which resulted in damage to the plaintiffs’ property,
10 Mr, Magee’s wife, a passenger in the aircraft, suffered fatal injuries in the accident,
ll B Insufficient Discovery Responses and Failures to Respond
12 1 Plaintiff Bryan Trujillo’s insufficient responses
13 Defendants propounded Request for Production of Documents, Set Three, upon Plaintiff
14 Bryan Trujillo and, in response, boilerplate objections were raised to each and every request. (Ex.
15 A.) This alone demonstrates Plaintiffs’ abuse of the discovery process. Additionally, discovery
16 responses were delayed, taking approximately two weeks to arrive by U.S. mail from Plaintiffs to
17 Defendants. (Ex. A, p. 1 and attached proof of service; Ex. B, p.1.) It is unclear what or who is
18 causing the delay, but what is clear is that Defendants are not timely receiving adequate responses,
19 which they are entitled to under the Civil Discovery Act.
20 2. Plaintiff Cindy Trujillo’s failure to respond
21 Defendants also served various discovery responses upon Plaintiff Cindy Trujillo, on or about
22 August 6, 2019. (Ex. C, p.1 and attached Ex. 1.) (This was the same time that Plaintiff BryanTrujillo
23 was served with similar yet distinct discovery requests.) Plaintiffs claimed that they did not receive
24 the discovery. In response, and as a courtesy, Defendants both emailed and mailed Plaintiffs copies
25 of the various discovery requests. Significantly, Plaintiffs undeniably acknowledged receiving the
26 discovery in their response letter. (Exs. C, D, and E, p. 1.) Notwithstanding acknowledging receipt,
27 Plaintiffs are now claiming they did not receive any discovery, and refuse to informally resolve this
28 matter ina timely fashion. (Ex. F,) Plaintiffs are presently claiming that discovery cutoffhas expired.
3.
DEFENDANTS’ NOTICE OF MOTION AND MOTION TO COMPLETE DISCOVERY; MEMO PS/AS; DEC.
Cc. Defendants’ Requests
First, Defendants move the Court to compel Plaintiffs to provide responses, without
objection, and corresponding documents to Defendants’ Request for Production of Documents, Set
Three, propounded upon Plaintiff Bryan Trujillo by a date specified at the hearing of this motion.
Plaintiffs raising boilerplate objections to each and every request justifies Defendants’ request.
Second, Defendants move the Court to compel Plaintiffs to provide responses, without
objection, and corresponding documents to Defendants’ Request for Production of Documents, Set
Three, propounded upon Plaintiff Cindy Trujillo by a date specified at the hearing of this motion.
Plaintiffs’ failure to cite any authority, excusing them from responding, justifies Defendants’ request.
10 Third, Defendants move the Court to compel Plaintiffs to provide responses, without
11 objection, to Defendants’ Special Interrogatories, Set One, propounded upon Plaintiff Cindy Trujillo
12 by a date specified at the hearing of this motion, Plaintiffs’ failure to cite any authority, excusing
13 them from responding, justifies Defendants’ request.
14 F ‘ourth, Defendants further move the Court to deem admitted each and every request for
is admission contained in Defendants’ Requests for Admission, Set One, propounded upon Plaintiff
16 Cindy Trujillo, Plaintiffs’ failure to cite any authority, excusing them from responding, justifies
17 Defendants’ request. The discovery cutoff date does not affect a motion to deem responses admitted.
18 Fifth, in the event that the Court is disinclined to deem each and every request for admission
19 against Plaintiff Cindy Trujillo admitted, Defendants respectfully request, in the alternative, that the
20 Court compel Plaintiff Cindy Trujillo to provide responses, without objection, to Defendants?
21 Request for Admission, Set One, along with corresponding responses to Defendants’ Form
22 Interrogatories, Set Two, also without objection, to include sufficient facts supporting each denial.
23 Plaintiffs’ failure to cite any authority, excusing them from responding, justifies Defendants’ request.
24 Finally, Defendants request that Plaintiffs produce unredacted records concerning Plaintiffs’
25 calendar book, Plaintiffs have not established any privacy privilege and failed to produce acomplete
26 privilege log since it fails to include the required contents. As such, Plaintiffs have waived the
27 privilege and provided insufficient support for their claim of privacy.
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DEFENDANTS’ NOTICE OF MOTION AND MOTION TO COMPLETE DISCOVERY; MEMO PS/AS; DEC.
1 IL. ARGUMENT
A. Court’s Authority to Grant Leave to Complete Discovery
Pursuant
to Code of Civ, Proc, 2024.050, a party may move the court for leave “to complete
discovery proceedings, or to have a motion concerning discovery heard, closer to the initial trialdate,
or to reopen discovery after a new trial date has been set.” (Code of Civ, Proc, 2024.050(a). The trial
date has been continued from November 4, 2019 to February 10, 2019, which provides a sufficient
amount of time for Plaintiffs to produce sufficient responses for the discovery requests identified
above, and for the Court to deem certain responses admitted.
B. Policy Favors Resolution on the Merits
10 The purpose of the discovery rules is to eliminate trial strategies that focus on gamesmanship.
11 (Juarez v. Boy Scouts of America, Inc, (1st Dist. 2000) 81 Cal. App. 4th 377, 389.) Policy strongly
12 favors resolution of lawsuits on the merits, rather than “undeserved windfalls” from insufficient
13 responses. (New Albertsons, Inc. v. Sup, Ct. (Shanahan) (2008) 168 Cal.App.4th 1403, 1420 (“New
14 Albertsons, Inc.”).) Courts also strongly disfavor gamesmanship in discovery matters. (Clement v.
15 Alegre (1st Dist. 2009) 177 Cal. App. 4th 1277, 1286-1287 (“Clement "),)
16 Cc. Defendants have satisfied the meet and confer requirement
17 A motion for leave to complete discovery requires a meet and confer declaration under Code
18 of Civil Procedure, section 2016,040, (Code of Civ. Proc. 2024.050(a).) Code of Civil Procedure,
19 section 2016.040, provides that a meet and confer declaration must show facts showing a reasonable
20 and good faith attempt at informal resolution. (Code of Civ. Proc. 2016.040,.) Defendants have
21 satisfied this requirement. (See Ex. L.)
22 D. Plaintiffs’ Violations of the Civil Discovery Act
jectio
23 1 oil a
24 General objections to the entire request are unauthorized and constitute a discovery abuse.
25 (CAL. PRAC. GUIDE: CIV. PROC. BEFORE TRIAL (The Rutter Group 2019) § 8:1469 ,p. 8-23.)
26 Objecting to the entire request or nearly all the requests is clear evidence of delaying discovery.
27 (Clement, supra, 177 Cal. App. 4th at 1292.) Objections must be specific, and a motion to compel
28 lies where objections are “too general. (Code of Civ. Proc, §2031.240(a); see Korea Data Systems
5+
|PEFENDANTS” NOTICE OF MOTION AND MOTION TO COMPLETE DISCOVERY; MEMO PS/AS; DEC.
Co, Ltd. v. Sup.Ct. (Aamazing Technologies Corp.) (1997) 51 Cal.App.4th 1513, 1516 (objecting
party subject to sanctions for “boilerplate” objections).) Plaintiffs’ objections to each and every
request for production merits granting Defendants’ motion to compel discovery. (Ex. A.)
In Clement, plaintiff sued defendant for specific performance, among other things, in
connection with the sale of real property by plaintiffs to defendants. Defendant served plaintiffs with
23 special interrogatories. Plaintiffs only answered 3 and raised boilerplate objections in response
tothe other 20 interrogatories. In affirming the trial court’s issuance of sanctions against the plaintiff,
the First District Court of Appeal held that civil discovery isessentially self-executing and certain
conduct frustrates this system when it requires court involvement. (Id. at 1291-1292.) “[T]he rules
10 should deter the abuse implicit in carrying or forcing a discovery dispute to court when no genuine
ai dispute exists.” (Id, at 1292, emphasis in the original.) The appellate court found “no difficulty” in
12 affirming the lower court’s decision, finding that the dispute was not “genuine,” when the plaintiff
13 objected to nearly all the discovery requests without substantiation. (Id.)
14 Here, substantial evidence shows that the dispute raised by Plaintiffs is not genuine.
15 Exceeding Clement where the plaintiff objected to most ofthe discovery requests, here, Plaintiffs
16 asserted boilerplate objections to al! of Defendants’ Requests for Production of Documents, Set
17 Three. (Ex. A.)
18 Plaintiffs raised two categories of objections: 1) relevance; and 2) privacy. Each requests for
19 production was relevant since they were reasonably calculated to lead to the discovery of admissible
20 evidence. The Court of Appeal has held that“, . . in order to be discoverable, the information sought
21 must meet a two-pronged test. It must be (1) relevant to the subject matter involved in the pending
22 action and (2) either admissible in evidence or reasonably calculated to lead to the discovery of
23 admissible evidence.” (Norton v. Superior Court (1994) 24 Cal.App.4th 1750, 1755 (“Norton”).)
24 As to the first prong, “[r]elevancy to the subject matter of the litigation is a much broader
25 concept than relevancy to the precise issues presented by the pleadings.” (Id, at 1760.) Further, the
26 Court of Appeal has held that discovery requests “relevant to the subject matter are permissible
27 including questions which might possibly lead to the discovery of admissible evidence or
28 information which would be helpful in preparing for the trial of a particular case.” (Deyo v.
6-
DEFENDANTS’ NOTICE OF MOTION AND MOTION TO COMPLETE DISCOVERY; MEMO PS/AS; DEC.
\N\A }
Kilbourne (1978) 84 Cal.App.3d 771, 781.) The information sought concerns Plaintiffs’ purported
damage claim, among other things, in connection with the incident. Therefore, it is of central
relevance to the subject matter of the lawsuit.
As to the second prong, “. . . California courts have been broad-minded in determining
whether discovery is reasonably calculated to lead to admissible evidence. As a practical matter, it
is difficult to define at the discovery stage what evidence will be relevant at trial. Therefore, the
party seeking discovery is entitled to substantial leeway. Furthermore, California’s liberal approach
to permissible discovery generally has led courts to resolve any doubt in favor of permitting
discovery.” (Norton, supra, 24 Cal.App.4th at 1761.) Thus, a Court is likely to take a dim view of
10 the contention that the information requested is somehow not reasonably calculated to lead to
11 admissible evidence. Since Plaintiffs are claiming various damages, including but not limited to loss
12 of use, amounting to purported damages of tens of thousands of dollars, the information sought is
13 both highly relevant and discoverable.
14 As for the privacy objection, the party asserting a privacy objection “must establish a legally
15 protected privacy interest, an objectively reasonable expectation of privacy in the given
16 circumstances, and a threatened intrusion that is serious.” (Williams v. Sup.Ct. (Marshalls of CA,
17 ILC) 2017) 3 Cal.5th 531, 552.) Plaintiffs have failed to sufficiently do so and cite no authority
18 supporting their position. Additionally, Plaintiffs cannot pursue a claim against the propounding
19 party while withholding evidence of the claim. (Steiny & Co v. California Electric Supply (2000) 79
20 Cal.App.4th 285, 292-293.)
21 Furthermore, documents produced by Plaintiffs (which failed to identify which discovery
22 request they were responding to) contained several redactions. All relevant documents must be
23 produced, including information that will lead to probative facts. (West Pico Furniture Co. of Los
24 Angeles v. Superior Court (1961) 56 Cal.2d-407, 417.) Thus, the content of these documents should
25 not be redacted.
26 Moreover, Plaintiffs produced in incomplete privilege log. A privilege log must include: 1)
27 identification for each document; 2) the author; 3) recipients; 4) date of preparation; and 5) Specific
28 privilege or work product claimed. (Hernandez v. Sup.Ct. (Acheson Industries, Inc.) (2003) 112
-7-
BEENDANTS? NOTICE OF MOTION AND MOTION TO COMPLETE DISCOVERY; MEMO PS/AS; DEC.
Cal. App.4th 285, 291-292.)
The privilege log failed to include the required categories listed above, and it failed to include
specific facts to allow Defendants to determine whether the redacted portion of the documents were
or were not privileged. (Wellpoint Health Networks, Inc. v. Sup.Ct. (McCombs) (1997) 59
Cal.App.4th 110, 130.) (See Catalina Island Yacht Club v. Sup. Ct. (Beatty) (2015) 242 Cal.App.4th
1116, 1130 (privilege log deficient for failure to describe contents).) (See Ex. M.)
Since responding party has failed to provide “sufficient factual information” to justify the
numerous redactions and since:the privilege log did not have the required specific information,
Plaintiffs have waived any purported claim of privacy. Accordingly, Defendants request that the
10 Court grant its motion.
11 2. Insufficient
meet and confer efforts
12 The discovery statute requires meaningful effort at negotiation and informal resolution,
13 (Clement, supra, 177 Cal. App. 4th at 1281.) Something more than bickering is required. (Id. (See
14 also Townsend v. Sup. Ct. (EMC Mortgage Co.) (1998) 61 Cal.App.4th 1431, 1435 (the parties are
15 to present the merits of their positions and informally negotiate),) Plaintiffs’ failure to meaningfully
16 negoiiate is an indication of delay and clear evidence of their lack of sufficient effort to resolve this
17 matter informally. This coupled with Plaintiffs’s failure to cite any supporting authority, excusing
18 them from responding, are sufficient grounds to grant Defendants’ motion.
19 Each time Defendants proposed response dates (explaining that time was of the essence due
20 to the November trial date) Plaintiffs arbitrarily responded that the proposed date was
21 “anreasonable,” without providing any alternative whatsoever. Defendants extended the response
22 date three times in a good faith effort to resolve this matter, but to no avail. (Ex. L, p2) Plaintiffs
23 now claim that the discovery cutoff date had expired. (See Ex. B.) This is another demonstration of
24 Plaintiffs’ lack of good faith, and sufficient evidence to grant Defendants’ motion.
25 Plaintiffs’ history of causing delays further shows that Defendants’ motion is appropriate.
26 Notably, Plaintiffs’ initial responses to various discovery requests included unmeritorius objections
27 to each and every request. (See Exs. A and I; Plaintiff Bryan Trujillo’s responses to Request to
28 Produce, Set Three; Special Interrogatories, Set One; and Request for Admissions, Set One.)
-8-
EFENDANTS’ NOTICE OF MOTION AND MOTION TO COMPLETE DISCOVERY; MEMO PS/AS; DEC.
Plaintiffs additionally engaged in producing responses piecemeal, which added considerable
delay. For instance, Plaintiffs’ September 30, 2019 response letter indicated that responses were
amended, however, no amended responses wete ever attached to the email. (See Ex. H.) Moreover,
the correspondence failed to indicate that enclosures were included. (Jd.) The responses were
ultimately mailed separately and arrived wellafter Defendants sent a reply letter.
As a result of this delay and confusion, Defendants, in their October 11, 2019 meet and
confer letter, specifically requested thatfurther responses and corresponding documents be emailed
in addition being sent via U.S. mail. (Ex. J, p.3.) Plaintiffs, however, failed to do so by continuing
to send documents separately, some via email and some by only U.S, mail. Plaintiffs’ most recent
10 email in this discovery dispute clearly shows that no responsive documents were included as an
il attachment, only the meet and confer letter and an untimely privilege log. (See Ex. K.) The
12 documents referenced in Plaintiffs’ October 25, 2019 meet and confer letter were only sent via U.S.
13 mail, which arrived fen days later on November 4, 2019. (Ex. B.) This is further substantial evidence
14 to grant Defendants’ motion.
15 3 Admission of receipt of discovery and failure to respond
16 On or about September 24, 2019, Defendants indicated that responses for Plaintiff Cindy
17 Trujillo’s discovery were outstanding. Rather than requesting the discovery at issue, Plaintiff's
18 correspondence evasively responded that she was under no obligation to respond. In reply,
19 Defendants sent Plaintiffs, via U.S. mail and email, courtesy copies along with various proofs of
20 service to avoid any further delays. (Exs. C and D.)
21 Defendants explained that servic
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Bae GARRY L. MONTANARI, State Bar No. 89790 WESLEY S. WENIG, State Bar No. 162351 JOHN H. MOON, State Bar No. 253811 MICHAELIS, MONTANARI & JOHNSON, P.C 4333 Park Terrace Dr. #110 Westlake Village, CA 91361 ILED Telephone No (818) 865-0444 SAN MATEO COUNT Y Attorneys for defendants, STEPHEN MAGEE and JAN 03 2020 SAC AERO FLYING CLUB, INC. Crerkipty \F V\ SUPERIOR COURT OF THE STATE OF CALIFORNIA |_—___ iB cIV—01901 COUNTY OF SAN MATEO & ue Application 11 BRYAN TRUJILLO and CINDY TRUJILLO. Case No.: 18CIV01901 il ANAM Honorable Robert D. Foiles; Dept. 21 12 EX PARTE APPLICATION FOR 13 Plaintiffs, ORDER SHORTENING TIME FOR HEARING AND GIVING NOTICE OF 14 VS. DEFENDANTS’ MOTION TO COMPLETE DISCOVERY: 15 DECLARATION OF GARRY L STEPHEN MAGEE, SAC AERO FLYING MONTANARI IN SUPPORT 16 CLUB, INC. and DOES 1 - 50 THEREOF Date: January3, 2020 17 Defendants. Time: 2:00 p.m. Dept.: Law and Motion 18 Complaint filed: April 17, 2018 19 Trial Date: February 10, 2020 20 TO THE COURT, ALL PARTIES AND THEIR ATTORNEYS OF RECORD 21 PLEASE TAKE NOTICE that on January 3, 2020, at 2:00 p.m., in the Law and Motion 22 Department of the above-entitled court located at 400 County Center, Redwood City, CA 94063 23 defendants STEPHEN MAGEE and SAC AERO FLYING CLUB, INC. (collectively referred to as 24 “Defendants”) through their attorneys of record, respectfully submits its Ex Parte Application 25 (“Application”) For Order Shortening the Time to hear Defendants’ Motion to Complete Discovery 26 (“Motion”). 27 The Court has authority to grant Defendants’ Application, as further stated in the 28 memorandum of points and authorities submitted in support of this Application. This Application -l- EX PARTE APPLICATION FOR ORDER SHORTENING TIME FOR HEARING AND GIVING NOTICE OF DEFENDANTS’ MOTION TO COMPLETE DISCOVERY; DECLARATION OF MONTANARI is made on the basis that good cause exists to shorten the time to hear Defendants’ Motion since there were no available dates in the court’s calendaring system to hear the matter before trial and since Defendants will be deprived of substantial discovery properly propounded upon Plaintiffs. Trial is scheduled for February 10, 2020, and a regularly noticed motion concerning a discovery issue could not be heard until February 26, 2020. Ori December 31, 2019, counsel for Defendants sent an email notice to plaintiffs’ counsel in this action, providing the date, time, location, and purpose of this Application. Counsel sent notice as follows: Michael S. Danko, Esq. and Shawn Miller, Esq. Danke Meredith 10 333 Twin Dolphin Dr., Suite 145 Redwood Shores, CA 94065 11 (650) 453-3600 Email: mdanko@dankolaw.com; smiller@dankolaw.com 12 13 Plaintiffs’ counsel indicated that they were appearing and opposing Defendants’ Application. 14 This Application is based upon the attached memorandum of points and authorities, the 15 declaration of Garry L. Montanari, all pleadings and papers on file herein, all matters of which this 16 Court may take judicial notice, and such evidence and argument as may be presented at any hearing 17 on this application. 18 19 DATED: January 2, 2020 MICHAELIS, MONTANARI & JOHNSON 20 21 By GARR MONTANA 22 Attorne!for Defendants STEPHEN MAGEE and SAC AERO FLYING CLUB, INC. 23 24 NA17517\pld\exparte\p-exparte. discovery. 1.wpd 25 26 27 28 -2- EX PARTE APPLICATION FOR ORDER SHORTENING TIME FOR HEARING AND GIVING NOTICE OF |PEFENDANTS’ MOTION TO COMPLETE DISCOVERY; DECLARATION OF MONTANARI MEMORANDUM OF POINTS AND AUTHORITIES I INTRODUCTION This lawsuit arises out of an aircraft accident which took place near the approach end of Runway 12 at Half Moon Bay Airport on November 18, 2016. Defendant STEPHEN MAGEE (“Magee”) was piloting a single-engine aircraft owned by defendant SAC AERO FLYING CLUB, INC. (“Sac Aero”) (Magee and Sac Aero are collectively referred to as “Defendants”) when he encountered wind shear turbulence while he was on approach for landing. The turbulence caused aloss of control at low altitude and Magee was forced to make an emergency landing which resulted in damage to the plaintiffs’ property. Magee’s wife, a passenger in the aircraft, suffered fatal 10 injuries. 11 Plaintiffs BRYAN TRUJILLO and CINDY TRUJILLO (collectively referred to as 12 “Plaintiffs”) filed their Complaint on or about April 17, 2018. Plaintiffs-in-intervention ALLIED 13 PROPERTY AND CASUALTY INSURANCE COMPANY’s and AMCO INSURANCE 14 COMPANY’s (collectively referred to as “Plaintiffs’ Insurer”) filed a motion to intervene, which the 15 court granted and, on or about February 21, 2019, Plaintiffs’ Insurer filed their Complaint in 16 Intervention. On or about March 21, 2019, Plaintiffs’ Insurer filed their First Amended Complaint 17 in Intervention. Plaintifis’ Insurer has reached a settlement with Defendants. 18 Defendants propounded a number of sets of discovery upon Plaintiffs, both individually and 19 collectively. Plaintiffs, however, failed to provide any timely responses for discovery propounded 20 upon plaintiff CINDY TRUJILLO. Additionally, Plaintiffs also failed produce sufficient documents 21 as to discovery propounded upon BRY AN TRUJILLO, only asserting boilerplate objections. Finally, 22 Plaintiffs produced redacted documents of a calendar book without producing substantial support 23 for its redaction. Consequently, Defendants engaged in lengthy meet and confer processes, in an 24 attempt to informally resolve the matter. The meet and confer efforts were unsuccessful. 25 Defendants request that the Court shorten time to hear its Motion since Defendants will be 26 deprived of discovery responses that should be afforded to them, under the Civil Discovery Act. 27 II. RELEVANT PROCEDURAL HISTORY 28 On related discovery matters, Defendants attempted to secure a hearing date before trial 3. EX PARTE APPLICATION FOR ORDER SHORTENING TIME FOR HEARING AND GIVING NOTICE OF JEFENDANTS’ MOTION TO COMPLETE DISCOVERY; DECLARATION OF MONTANARI but was unable to do so due to the San Mateo Court’s calendaring system. The calendaring system currently only allows approximately eight (8) motions to be heard per calendar day and there is no reservation system in place to secure any particular date that is shown on the San Mateo Court System’s calendar of available dates. Moreover, the available dates shown on the calendar are not always accurate for various reasons, according to the Court’s law and motion department. On or about October 25, 2019, Defendants submitted motions to be heard on December 9, 2019 since that was the earliest available date shown on the calendaring system. However, the calendaring system rejected Defendants’ request. Thus, Defendants have made a prior attempt to have various motions heard before trial, but 10 was unable to do so. 11 Tl. LEGAL ARGUMENT 12 A THE COURT HAS AUTHORITY TO SHORTEN TIME 13 This Court has statutory and inherent authority to grant Defendants’ Ex Parte Application. 14 Code of Civil Procedure, section 128(a)(3) provides that “[e]very court shall have the power to ... 15 provide for the orderly conduct of proceedings before it, or its officers.” (Code of Civ. Proc. 16 §128(a)(3).) Moreover, Code of Civil Procedure, section 1005(b) states that the Court “may prescribe 17 a shorter time” for the hearing on any motion showing good cause. (Code of Civ. Proc. §1005(b).) 18 California Rules of Court, Rule 3.1300(b) further provides that the court, on its own motion or on 19 application for order shortening time supported by a declaration showing good cause, may prescribe 20 shorter times for the filing and service of papers than the times specified by Code of Civil Procedure, 21 section 1005(b). It is also well settled by our high court that, 22 “a trial court has the power to exercise a reasonable control over all 23 proceedings connected with the litigation before it. Such power 24 necessarily exists as one of the inherent powers of the court and such 25 power should be exercised by the courts in order to insure that the 26 orderly administration of justice.” 27 (Hayes v. Superior Court (1940) 16 Cal.2d 260, 264.) 28 * Additionally, the court has discretion to have a motion concerning discovery heard. (Code -4- EX PARTE APPLICATION FOR ORDER SHORTENING TIME FOR HEARING AND GIVING NOTICE OF DEFENDANTS’ MOTION TO COMPLETE DISCOVERY; DECLARATION OF MONTANARI of Civ. Proc. §2024.050(a).) Therefore, this Court has the authority to grant Defendants’ Application since good cause (as shown below and in the attached Declaration of Garry. L. Montanari) is present. B. GOOD CAUSE EXISTS TO SHORTEN HEARING DATES In exercising discretion to grant or deny the motion, a court takes the following into consideration: “(1) the necessity and reasons for the discovery; (2) the diligence or lack of diligence of the party seeking the discovery or the hearing of a discovery motion, and the reasons that the discovery was not 10 completed or that the discovery motion was not heard earlier. (3) Any 11 likelihood that permitting the discovery or hearing the discovery 12 motion will prevent the case from going to trial on the date set, or 13 otherwise interfere with the trial calendar, or result in prejudice to any 14 other party. (4) The length of time that has elapsed between any date 15 previously set, and the date presently set, for the trial of the action.” 16 (Code of Civ. Proc. §2024.050(b)(1-4).) 17 Here, good cause is present since Defendants will be deprived of discovery responses they 18 are entitled to under the Civil Discovery Act if their Ex Parte Application (“Application”) is not 19 granted. There is no limit to file this motion where no responses have been timely served and 20 plaintiffs have failed to produce timely responses for the discovery propounded upon plaintiff 21 CINDY TRUJILLO. (Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 22 148 Cal.App.4th 290, 410-411 (“Sinaiko”).) Moreover, Defendants attempted to have related 23 discovery matters heard before trial but the calendaring system did not have any available dates 24 before the commencement of the trial date. 25 Defendants’ lengthy meet and confer efforts demonstrate their good faith and diligence in 26 pursuing the requested discovery, which is also in compliance with Code of Civil Procedure 27 §2016.040. (Code of Civ. Proc. §2016.040.) Indeed, Defendants were not required to meet and 28 confer since plaintiff CINDY TRUJILLO did not produce any responses whatsoever. (Code of Civ. 5. EX PARTE APPLICATION FOR ORDER SHORTENING TIME FOR HEARING AND GIVING NOTICE OF DEFENDANTS’ MOTION TO COMPLETE DISCOVERY; DECLARATION OF MONTANARI Proc. §2030.290;§2030.300; see Sinaiko, supra, 148 Cal.App.4th at 404.) Notwithstanding this, Defendants engaged in extended meet and confer efforts in order to informally resolve this matter. There is little to no likelihood that shortening the hearing date as to Defendants’ Motion will prevent the case from going to trial on the set date or otherwise interfere with the trial calender. This is simply a matter of hearing Defendants’ Motion as to Plaintiffs’ failure to timely respond, produce sufficient discovery responses, and produce substantial support for their redactions. Finally, the date previously set for trial was November4, 2019. The date presently set for trial is February 10, 2020. In October, Defendants filed related discovery motions, however the requested December date was rejected by the calendaring system. The current available date to hear 10 Defendants’ Motion is February 26, 2020. If Defendants’ request is granted, then the Motion will 11 be heard before trial with ample time for Plaintiffs to produce sufficient responses. 12 Cc PREJUDICE 13 No prejudice will result to Plaintiffs if the Court grants Defendants’ Application, however, 14 prejudice will resultto Defendants if time is not shortened to hear its Motion. Plaintiffs have failed 15 to provide sufficient and/or timely responses to Defendants’ discovery requests. Thus, if Defendants’ 16 Motion is not heard it will be deprived of discovery responses that it is entitled to under the Civil 17 Discovery Act. Inlight of the numerous meetand confers efforts Defendants engaged in, Defendants 18 will be extremely prejudiced since it will be deprived of discovery which should have been provided 19 long ago. There will simply be no prejudice to Plaintiffs since producing the requested discovery will 20 not result in any harm to them, however the same will not be true for Defendants. 21 IV. CONCLUSION 22 ’ For the foregoing reasons, Defendants respectfully requests that the Court grant its ex parte 23 application for order shortening the time to hear its Motion to Complete Discovery. 24 DATED: January 2, 2020 MICHAELIS, MONTANARI & JOHNSON 25 26 By: GARR, MONT. 27 Attorn for Defendants STEPHEN MAGEE NAI7517\pld\exparte\p-exparte.discovery.1.wpd and SAC AERO FLYING CLUB, INC. 28 6 EX PARTE APPLICATION FOR ORDER SHORTENING TIME FOR HEARING AND GIVING NOTICE OF JEFENDANTS’ MOTION TO COMPLETE DISCOVERY; DECLARATION OF MONTANARI DECLARATION OF GARRY L. MONTANARI I, GARRY L. MONTANARI, declare as follows: 1 Iam an attorney at Jaw duly licensed to practice before all the Courts of the State of California. I am a partner of the law firm of Michaelis, Montanari & Johnson, counsel of record for defendants STEPHEN MAGEE and SAC AERO FLYING CLUB, INC. (collectively referred to as “Defendants”). I have personal knowledge of the matters set forth below and could testify thereto in any proceeding in this litigation. 2. This declaration is submitted in support of Defendants’ Ex Parte Application for Order Shortening Time for hearing and giving notice of Defendants’ Motion to Complete Discovery. 10 3 The opposing party is represented by counsel, Michael S. Danko of Danko Meredith. 11 Opposing counsel (“plaintiffs’ counsel”) has been given notice of Defendants’ Application, pursuant 12 to the California Rules of Court. 13 4 On December 31,2019, before 2:00 p.m., our office emailed plaintiffs’ counsel notice 14 of Defendants’ ex parte application. (Attached as Exhibit A is a true and correct copy of the email 15 notice sent to all parties in this matter.) Plaintiffs’ counsel indicated that they were appearing and 16 opposing Defendants’ Application. 17 5 Plaintiffs’ counsel did not agree to stipulate to shorten time for hearing and giving 18 notice of Defendants’ Motion for Leave to Amend its Answer. (Attached as Exhibit B is a true and 19 correct copy of the email showing plaintiffs’ counsel’s refusal to stipulate to advancing the hearing 20 date on Defendants’ Motion.) 21 6 Attached as Exhibit C is a true and correct copy of Defendants’ Motion to Complete 22 Discovery. 23 7 The first available hearing on the San Mateo County Court System to schedule a 24 regularly noticed motion could not be heard until February 26, 2020, which is well past the 25 commencement of trial, which is scheduled to begin on February 10, 2020. 26 8 On or about October 25, 2019, Defendants submitted related discovery motions to 27 be heard on December 9, 2019 since that was the earliest available date shown on the calendaring 28 system. However, the calendaring system rejected Defendants’ request. -7- b EX PARTE APPLICATION FOR ORDER SHORTENING TIME FOR HEARING AND GIVING NOTICE OF JEFENDANTS’ MOTION TO COMPLETE DISCOVERY; DECLARATION OF MONTANARI 9 Plaintiffs have not provided any responses as to the discovery Defendants propounded served on plaintiff CINDY TRUJILLO. Although not required to do so, Defendants engaged in lengthy meet and confer efforts to resolve this matter informally. Those efforts were unsuccessful. Defendants also engaged in meet and confer efforts for insufficient responses produced in connection with requests for production propounded upon plaintiff BRYAN TRUJILLO, wherein Plaintiff BRYAN TRUJILLO responded by raising boilerplate objections to each and every request. Defendants’ meet and confer efforts for that discovery was similarly unsuccessful. Lastly, Plaintiffs produced a redacted calendar book without providing substantial support for the redactions. Plaintiffs failed to produce substantial support for the redactions notwithstanding Defendants’ meet and confer 10 requests for such support. 11 10. Defendants were unable to secure a hearing date to have their Motion heard prior to 12 the commencement of trial. 13 il. Irreparable harm will result as if this ex parte application is not granted since 14 Defendants will be permanently deprived of substantial discovery properly propounded upon 15 Plaintiffs. 16 17 I declare under penalty of perjury under the laws of the State of California that the foregoing 18 is true and correct. 19 Executed this 2nd day of January, 2020, at Westlake Village, California. 20 21 GARRY L. MOR TANARI 22 23 NAL7517pld\exparte\p-exparte.discovery. I wpd 24 25 26 27 28 -8- EX PARTE APPLICATION FOR ORDER SHORTENING TIME FOR HEARING AND GIVING NOTICE OF IEFENDANTS’ MOTION TO COMPLETE DISCOVERY; DECLARATION OF MONTANARI ® ® John H. Moon a From: John H. Moon Sent: Tuesday, December 31, 2019 1:09 PM To: mdanko@dankolaw.com; ‘smiller@dankolaw.com' Ce: Garry L. Montanari Subject: Sac Aero - Ex’Parte Applications Notice Dear Counsel Please be advised that Defendants Stephen Magee and Sac Aero Club Flying (collectively referred to as “Deferidants”) will be appearing ex parte at 2:00 p.m. on Friday, January 3, 2020 in the law and motion department of the San Mateo Superior Courthouse, located at 400 County Center, Redwood City, CA, 94063, regarding advancing the hearing dates for Defendants’ motions for leave to amend its answer, complete discovery, and withdraw its request for admission response. Please advise if you will be appearing and/or opposing. If you have any questions, please do not hesitate to contact me. Thank you John H. Moon Michaelis, Montanari & Johnson 4333 Park Terrace Drive, Suite 110 Westlake Village, CA 91361 www.mmilaw.net This e-mail and any attachments are confidential and also may be privileged. If you are not the named recipient, or have otherwise received this communication in error, please delete it from your inbox, notify the sender immediately, and do not disclose its contents to any other person, use them for any purpose, or store or copy them in any medium. Thank you for your cooperation. & ® e ll Exhibit B John H. Moon From: John H. Moon Sent: Monday, December 30, 2019 9:49 AM To: ‘Shawn Miller’ Ce: ‘Khloe Lee’; Garry L. Montanari , Subject: RE: Sac Aero - Stipulation to Advance Hearing Dates 7 Shawn: Please do not mischaracterize our prior filingattempt. At the time we submitted our filings, the court’s law and motion calendar listed our requested December hearing dates as being available. We filed the motions with the court, but the court did not accept our filings, indicating at that time that our requested hearing dates were now unavailable. This was beyond our control, and | sent an email to Ms. Lee informing her of this. It is unclear whether she forwarded you my email. In any event, the motions have been filed and accepted by the court. Our office served the motions on or about December 20, 2019, which means your office should have received them by now. mene weet ene From: Shawn Miller Sent: Sunday, December 29, 2019 6:29 PM. To: John H. Moon Subject: RE: Sac Aero - Stipulation to Advance Hearing Dates Mr. Moon — ! am traveling for the holiday and, therefore, | have not yet seen the motions you reference. | anticipate returning to the office and being able to review these motions on January 2, 2020. Undoubtedly the court did not have any hearing dates available prior to the February 10, 2020 trial given the lateness of your attempt to secure a date. Given my travel, we will not agree to advancing the hearing date as suggested (to January 16, 2020) as | would have one day to draft responses to your multiple motions if we did so. Given your recent behavior of serving but not filing discovery motions, please confirm whether you have actually filed the motions listed below with the court or have merely served them on us. Best regards, Shawn Miller Danko Meredith - From: john H. Moon < Moon@ mmilaw.net> Sent: Friday, December 27, 2019 2:41 PM To: Khloe Lee ; Shawn Miller Cc: Garry L. Montanari Subject: Sac Aero - Stipulation to Advance Hearing Dates Importance: High Dear counsel: - \ . \ We have scheduled three motions to We ard on February 26, 2020, concerning requesting leave to amend our answer, withdrawing a request for admission response, and completing discovery. We were unable to schedule a hearing before the commencement of trial since the court’s calendaring system did not have any available dates. Would plaintiffs be amenable to stipulating to advancing the hearing dates for the three aforementioned matters to be heard on January 16, 2020? Please let us know by 9:00 a.m. Monday, December 30, 2019. Thank you. John H. Moon Michaelis, Montanari & Johnson 4333 Park Terrace Drive, Suite 110 ‘ Westlake Village, CA 91361 www.mmijlaw.net This e-mail and any attachments are confidential and also may be privileged. If you are not the named recipient, or have otherwise received this communication in error, please delete it from your inbox, notify the sender immediately, and do not disclose its contents to any other person, use them for any purpose, or store or copy them in any medium. Thank you for your cooperation. @ @ @ _~. GARRY L, MONTANARI, State Bar No. 89790 Electronically WESLEY 8. WENIG, State Bar No. 162351 ‘by Superior Court of Californta, County of San Mateo JOHN H. MOON, State Bar No. 253811 ‘ON 12/20/2019 MICHAELIS, MONTANARI & JOHNSON, P.C. 4333 Park Terrace Dr. #110 's/ Wai Shan Lee. Westlake Village, CA 91361 jeputy Clerk Telephone No. (818) 865-0444 Attorneys for defendants, STEPHEN MAGEE and SAC AERO FLYING CLUB, INC. SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN MATEO 10 i1 BRYAN TRUJILLO and CINDY Case No.: 18CTV01901 12 TRUSILLO, Honorable Robert D. Foiles; it. 21 DEFENDANTS STEPHEN [AGEE 13 Plaintiffs, AND SAC AERO FLYING CLUB, INC.’S NOTICE OF MOTION AND 14 MOTION TO COMPLETE DISCOVERY; MEMORANDUM OF 15 POINTS AND AUTHORITIES; STEPHEN MAGEE, SAC AERO FLYING DECLARATION OF JOHN H. “MOON 16 CLUB, INC, and DOES1 - 50, Date: February 26, 2020 Time: 9:00 a.m. 17 Defendants. Dept.: Law and Motion Complaint filed: April 17, 2018 18 Trial Date: February 10, 2020 19 TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD: 20 PLEASE TAKE NOTICE that on February 26, 2020 at 9:00 a.m. or as soon thereafter as 21 the matter may be heard in the Law and Motion Department of the above-entitled Court located at 22 400 County Center, Redwood City, CA 94063, defendants STEPHEN MAGEE and SAC AERO 23 FLYING CLUB, INC. (collectively referred to as “Defendants”) will move this Court for leave to 24 complete discovery, pursuant to Code of Civil Procedure, section 2024.050 25 This Motion will be made upon the ground that meet and confer efforts were unsuccessful 26 and that Defendants diligently attempted to obtain various discovery responses from Plaintiffs, that 27 have asserted boilerplate objections and failedto response to other discovery requests, and will be 28 based upon this notice, the attached memorandum of points and authorities, all papers and records “le EFENDANTS’ NOTICE OF MOTION AND MOTION TO COMPLETE DISCOVERY; MEMO PS/AS; DEC. on file herein, the declaration of John H. Moon, and evidence both oral and documentary, as it may be presented at the hearing of this motion. , DATED: December 20, 2019 MICHAELIS, MONTANARI & JOHNSON By: GARRY /|L. MONT, Attorne for Defendants STEPHEN MAGEE and SAC AERO FLYING CLUB, INC, N:\L7517\pld\p-mtn.comp discovery. wpd 10 11 12 13 14 15 16 17 18 19 20 ai 22 23 24 25 26 27 28 -2- DEFENDANTS” NOTICE OF MOTION AND MOTION TO COMPLETE DISCOVERY; MEMO PS/AS; DEC. MEMORANDUM OF POINTS AND AUTHORITIES I. STATEMENT OF FACTS A Introduction This lawsuit arises out of an aircraft accident which took place near the approach end of Runway {2 at Half Moon Bay Airport on November 18, 2016. Defendant STEPHEN MAGEE (“Magee”) was piloting a single-engine aircraft owned by defendant SAC AERO FLYING CLUB, INC. (“Sac Aero”) (collectively referred to as “Defendants”) when he. encountered wind shear turbulence while he was on approach for landing. The turbulence caused a loss of control at low altitude and Magee made an emergency landing which resulted in damage to the plaintiffs’ property, 10 Mr, Magee’s wife, a passenger in the aircraft, suffered fatal injuries in the accident, ll B Insufficient Discovery Responses and Failures to Respond 12 1 Plaintiff Bryan Trujillo’s insufficient responses 13 Defendants propounded Request for Production of Documents, Set Three, upon Plaintiff 14 Bryan Trujillo and, in response, boilerplate objections were raised to each and every request. (Ex. 15 A.) This alone demonstrates Plaintiffs’ abuse of the discovery process. Additionally, discovery 16 responses were delayed, taking approximately two weeks to arrive by U.S. mail from Plaintiffs to 17 Defendants. (Ex. A, p. 1 and attached proof of service; Ex. B, p.1.) It is unclear what or who is 18 causing the delay, but what is clear is that Defendants are not timely receiving adequate responses, 19 which they are entitled to under the Civil Discovery Act. 20 2. Plaintiff Cindy Trujillo’s failure to respond 21 Defendants also served various discovery responses upon Plaintiff Cindy Trujillo, on or about 22 August 6, 2019. (Ex. C, p.1 and attached Ex. 1.) (This was the same time that Plaintiff BryanTrujillo 23 was served with similar yet distinct discovery requests.) Plaintiffs claimed that they did not receive 24 the discovery. In response, and as a courtesy, Defendants both emailed and mailed Plaintiffs copies 25 of the various discovery requests. Significantly, Plaintiffs undeniably acknowledged receiving the 26 discovery in their response letter. (Exs. C, D, and E, p. 1.) Notwithstanding acknowledging receipt, 27 Plaintiffs are now claiming they did not receive any discovery, and refuse to informally resolve this 28 matter ina timely fashion. (Ex. F,) Plaintiffs are presently claiming that discovery cutoffhas expired. 3. DEFENDANTS’ NOTICE OF MOTION AND MOTION TO COMPLETE DISCOVERY; MEMO PS/AS; DEC. Cc. Defendants’ Requests First, Defendants move the Court to compel Plaintiffs to provide responses, without objection, and corresponding documents to Defendants’ Request for Production of Documents, Set Three, propounded upon Plaintiff Bryan Trujillo by a date specified at the hearing of this motion. Plaintiffs raising boilerplate objections to each and every request justifies Defendants’ request. Second, Defendants move the Court to compel Plaintiffs to provide responses, without objection, and corresponding documents to Defendants’ Request for Production of Documents, Set Three, propounded upon Plaintiff Cindy Trujillo by a date specified at the hearing of this motion. Plaintiffs’ failure to cite any authority, excusing them from responding, justifies Defendants’ request. 10 Third, Defendants move the Court to compel Plaintiffs to provide responses, without 11 objection, to Defendants’ Special Interrogatories, Set One, propounded upon Plaintiff Cindy Trujillo 12 by a date specified at the hearing of this motion, Plaintiffs’ failure to cite any authority, excusing 13 them from responding, justifies Defendants’ request. 14 F ‘ourth, Defendants further move the Court to deem admitted each and every request for is admission contained in Defendants’ Requests for Admission, Set One, propounded upon Plaintiff 16 Cindy Trujillo, Plaintiffs’ failure to cite any authority, excusing them from responding, justifies 17 Defendants’ request. The discovery cutoff date does not affect a motion to deem responses admitted. 18 Fifth, in the event that the Court is disinclined to deem each and every request for admission 19 against Plaintiff Cindy Trujillo admitted, Defendants respectfully request, in the alternative, that the 20 Court compel Plaintiff Cindy Trujillo to provide responses, without objection, to Defendants? 21 Request for Admission, Set One, along with corresponding responses to Defendants’ Form 22 Interrogatories, Set Two, also without objection, to include sufficient facts supporting each denial. 23 Plaintiffs’ failure to cite any authority, excusing them from responding, justifies Defendants’ request. 24 Finally, Defendants request that Plaintiffs produce unredacted records concerning Plaintiffs’ 25 calendar book, Plaintiffs have not established any privacy privilege and failed to produce acomplete 26 privilege log since it fails to include the required contents. As such, Plaintiffs have waived the 27 privilege and provided insufficient support for their claim of privacy. 28 Mt -4- DEFENDANTS’ NOTICE OF MOTION AND MOTION TO COMPLETE DISCOVERY; MEMO PS/AS; DEC. 1 IL. ARGUMENT A. Court’s Authority to Grant Leave to Complete Discovery Pursuant to Code of Civ, Proc, 2024.050, a party may move the court for leave “to complete discovery proceedings, or to have a motion concerning discovery heard, closer to the initial trialdate, or to reopen discovery after a new trial date has been set.” (Code of Civ, Proc, 2024.050(a). The trial date has been continued from November 4, 2019 to February 10, 2019, which provides a sufficient amount of time for Plaintiffs to produce sufficient responses for the discovery requests identified above, and for the Court to deem certain responses admitted. B. Policy Favors Resolution on the Merits 10 The purpose of the discovery rules is to eliminate trial strategies that focus on gamesmanship. 11 (Juarez v. Boy Scouts of America, Inc, (1st Dist. 2000) 81 Cal. App. 4th 377, 389.) Policy strongly 12 favors resolution of lawsuits on the merits, rather than “undeserved windfalls” from insufficient 13 responses. (New Albertsons, Inc. v. Sup, Ct. (Shanahan) (2008) 168 Cal.App.4th 1403, 1420 (“New 14 Albertsons, Inc.”).) Courts also strongly disfavor gamesmanship in discovery matters. (Clement v. 15 Alegre (1st Dist. 2009) 177 Cal. App. 4th 1277, 1286-1287 (“Clement "),) 16 Cc. Defendants have satisfied the meet and confer requirement 17 A motion for leave to complete discovery requires a meet and confer declaration under Code 18 of Civil Procedure, section 2016,040, (Code of Civ. Proc. 2024.050(a).) Code of Civil Procedure, 19 section 2016.040, provides that a meet and confer declaration must show facts showing a reasonable 20 and good faith attempt at informal resolution. (Code of Civ. Proc. 2016.040,.) Defendants have 21 satisfied this requirement. (See Ex. L.) 22 D. Plaintiffs’ Violations of the Civil Discovery Act jectio 23 1 oil a 24 General objections to the entire request are unauthorized and constitute a discovery abuse. 25 (CAL. PRAC. GUIDE: CIV. PROC. BEFORE TRIAL (The Rutter Group 2019) § 8:1469 ,p. 8-23.) 26 Objecting to the entire request or nearly all the requests is clear evidence of delaying discovery. 27 (Clement, supra, 177 Cal. App. 4th at 1292.) Objections must be specific, and a motion to compel 28 lies where objections are “too general. (Code of Civ. Proc, §2031.240(a); see Korea Data Systems 5+ |PEFENDANTS” NOTICE OF MOTION AND MOTION TO COMPLETE DISCOVERY; MEMO PS/AS; DEC. Co, Ltd. v. Sup.Ct. (Aamazing Technologies Corp.) (1997) 51 Cal.App.4th 1513, 1516 (objecting party subject to sanctions for “boilerplate” objections).) Plaintiffs’ objections to each and every request for production merits granting Defendants’ motion to compel discovery. (Ex. A.) In Clement, plaintiff sued defendant for specific performance, among other things, in connection with the sale of real property by plaintiffs to defendants. Defendant served plaintiffs with 23 special interrogatories. Plaintiffs only answered 3 and raised boilerplate objections in response tothe other 20 interrogatories. In affirming the trial court’s issuance of sanctions against the plaintiff, the First District Court of Appeal held that civil discovery isessentially self-executing and certain conduct frustrates this system when it requires court involvement. (Id. at 1291-1292.) “[T]he rules 10 should deter the abuse implicit in carrying or forcing a discovery dispute to court when no genuine ai dispute exists.” (Id, at 1292, emphasis in the original.) The appellate court found “no difficulty” in 12 affirming the lower court’s decision, finding that the dispute was not “genuine,” when the plaintiff 13 objected to nearly all the discovery requests without substantiation. (Id.) 14 Here, substantial evidence shows that the dispute raised by Plaintiffs is not genuine. 15 Exceeding Clement where the plaintiff objected to most ofthe discovery requests, here, Plaintiffs 16 asserted boilerplate objections to al! of Defendants’ Requests for Production of Documents, Set 17 Three. (Ex. A.) 18 Plaintiffs raised two categories of objections: 1) relevance; and 2) privacy. Each requests for 19 production was relevant since they were reasonably calculated to lead to the discovery of admissible 20 evidence. The Court of Appeal has held that“, . . in order to be discoverable, the information sought 21 must meet a two-pronged test. It must be (1) relevant to the subject matter involved in the pending 22 action and (2) either admissible in evidence or reasonably calculated to lead to the discovery of 23 admissible evidence.” (Norton v. Superior Court (1994) 24 Cal.App.4th 1750, 1755 (“Norton”).) 24 As to the first prong, “[r]elevancy to the subject matter of the litigation is a much broader 25 concept than relevancy to the precise issues presented by the pleadings.” (Id, at 1760.) Further, the 26 Court of Appeal has held that discovery requests “relevant to the subject matter are permissible 27 including questions which might possibly lead to the discovery of admissible evidence or 28 information which would be helpful in preparing for the trial of a particular case.” (Deyo v. 6- DEFENDANTS’ NOTICE OF MOTION AND MOTION TO COMPLETE DISCOVERY; MEMO PS/AS; DEC. \N\A } Kilbourne (1978) 84 Cal.App.3d 771, 781.) The information sought concerns Plaintiffs’ purported damage claim, among other things, in connection with the incident. Therefore, it is of central relevance to the subject matter of the lawsuit. As to the second prong, “. . . California courts have been broad-minded in determining whether discovery is reasonably calculated to lead to admissible evidence. As a practical matter, it is difficult to define at the discovery stage what evidence will be relevant at trial. Therefore, the party seeking discovery is entitled to substantial leeway. Furthermore, California’s liberal approach to permissible discovery generally has led courts to resolve any doubt in favor of permitting discovery.” (Norton, supra, 24 Cal.App.4th at 1761.) Thus, a Court is likely to take a dim view of 10 the contention that the information requested is somehow not reasonably calculated to lead to 11 admissible evidence. Since Plaintiffs are claiming various damages, including but not limited to loss 12 of use, amounting to purported damages of tens of thousands of dollars, the information sought is 13 both highly relevant and discoverable. 14 As for the privacy objection, the party asserting a privacy objection “must establish a legally 15 protected privacy interest, an objectively reasonable expectation of privacy in the given 16 circumstances, and a threatened intrusion that is serious.” (Williams v. Sup.Ct. (Marshalls of CA, 17 ILC) 2017) 3 Cal.5th 531, 552.) Plaintiffs have failed to sufficiently do so and cite no authority 18 supporting their position. Additionally, Plaintiffs cannot pursue a claim against the propounding 19 party while withholding evidence of the claim. (Steiny & Co v. California Electric Supply (2000) 79 20 Cal.App.4th 285, 292-293.) 21 Furthermore, documents produced by Plaintiffs (which failed to identify which discovery 22 request they were responding to) contained several redactions. All relevant documents must be 23 produced, including information that will lead to probative facts. (West Pico Furniture Co. of Los 24 Angeles v. Superior Court (1961) 56 Cal.2d-407, 417.) Thus, the content of these documents should 25 not be redacted. 26 Moreover, Plaintiffs produced in incomplete privilege log. A privilege log must include: 1) 27 identification for each document; 2) the author; 3) recipients; 4) date of preparation; and 5) Specific 28 privilege or work product claimed. (Hernandez v. Sup.Ct. (Acheson Industries, Inc.) (2003) 112 -7- BEENDANTS? NOTICE OF MOTION AND MOTION TO COMPLETE DISCOVERY; MEMO PS/AS; DEC. Cal. App.4th 285, 291-292.) The privilege log failed to include the required categories listed above, and it failed to include specific facts to allow Defendants to determine whether the redacted portion of the documents were or were not privileged. (Wellpoint Health Networks, Inc. v. Sup.Ct. (McCombs) (1997) 59 Cal.App.4th 110, 130.) (See Catalina Island Yacht Club v. Sup. Ct. (Beatty) (2015) 242 Cal.App.4th 1116, 1130 (privilege log deficient for failure to describe contents).) (See Ex. M.) Since responding party has failed to provide “sufficient factual information” to justify the numerous redactions and since:the privilege log did not have the required specific information, Plaintiffs have waived any purported claim of privacy. Accordingly, Defendants request that the 10 Court grant its motion. 11 2. Insufficient meet and confer efforts 12 The discovery statute requires meaningful effort at negotiation and informal resolution, 13 (Clement, supra, 177 Cal. App. 4th at 1281.) Something more than bickering is required. (Id. (See 14 also Townsend v. Sup. Ct. (EMC Mortgage Co.) (1998) 61 Cal.App.4th 1431, 1435 (the parties are 15 to present the merits of their positions and informally negotiate),) Plaintiffs’ failure to meaningfully 16 negoiiate is an indication of delay and clear evidence of their lack of sufficient effort to resolve this 17 matter informally. This coupled with Plaintiffs’s failure to cite any supporting authority, excusing 18 them from responding, are sufficient grounds to grant Defendants’ motion. 19 Each time Defendants proposed response dates (explaining that time was of the essence due 20 to the November trial date) Plaintiffs arbitrarily responded that the proposed date was 21 “anreasonable,” without providing any alternative whatsoever. Defendants extended the response 22 date three times in a good faith effort to resolve this matter, but to no avail. (Ex. L, p2) Plaintiffs 23 now claim that the discovery cutoff date had expired. (See Ex. B.) This is another demonstration of 24 Plaintiffs’ lack of good faith, and sufficient evidence to grant Defendants’ motion. 25 Plaintiffs’ history of causing delays further shows that Defendants’ motion is appropriate. 26 Notably, Plaintiffs’ initial responses to various discovery requests included unmeritorius objections 27 to each and every request. (See Exs. A and I; Plaintiff Bryan Trujillo’s responses to Request to 28 Produce, Set Three; Special Interrogatories, Set One; and Request for Admissions, Set One.) -8- EFENDANTS’ NOTICE OF MOTION AND MOTION TO COMPLETE DISCOVERY; MEMO PS/AS; DEC. Plaintiffs additionally engaged in producing responses piecemeal, which added considerable delay. For instance, Plaintiffs’ September 30, 2019 response letter indicated that responses were amended, however, no amended responses wete ever attached to the email. (See Ex. H.) Moreover, the correspondence failed to indicate that enclosures were included. (Jd.) The responses were ultimately mailed separately and arrived wellafter Defendants sent a reply letter. As a result of this delay and confusion, Defendants, in their October 11, 2019 meet and confer letter, specifically requested thatfurther responses and corresponding documents be emailed in addition being sent via U.S. mail. (Ex. J, p.3.) Plaintiffs, however, failed to do so by continuing to send documents separately, some via email and some by only U.S, mail. Plaintiffs’ most recent 10 email in this discovery dispute clearly shows that no responsive documents were included as an il attachment, only the meet and confer letter and an untimely privilege log. (See Ex. K.) The 12 documents referenced in Plaintiffs’ October 25, 2019 meet and confer letter were only sent via U.S. 13 mail, which arrived fen days later on November 4, 2019. (Ex. B.) This is further substantial evidence 14 to grant Defendants’ motion. 15 3 Admission of receipt of discovery and failure to respond 16 On or about September 24, 2019, Defendants indicated that responses for Plaintiff Cindy 17 Trujillo’s discovery were outstanding. Rather than requesting the discovery at issue, Plaintiff's 18 correspondence evasively responded that she was under no obligation to respond. In reply, 19 Defendants sent Plaintiffs, via U.S. mail and email, courtesy copies along with various proofs of 20 service to avoid any further delays. (Exs. C and D.) 21 Defendants explained that servic