"...This is particularly true concerning a non-party to whom she has shown absolutely no diligence whatsoever and, of late, has treated with abuse of process..."
"...Ms. Kingston has not even attempted to give Pictage notice of this motion. As a result, Pictage --a non-party who has absolutely no reason to be monitoring the docket --has been forced to conduct an unnecessary and expensive "fire drill" including having its counsel reviewing motion papers over the Easter holiday weekend..."
Representing Marci was Barbara K. Hammers, of Hammers and Baltazar, LLC
The text that follows may contain errors, it was OCR'd by Adobe Acrobat recognition software...
MEREDITH N. LANDY (S.B. #136489) JOSHUA D. BAKER (S.B. #214389) O'MELVENY & MYERS LLP 2765 Sand Hill Road Menlo Park, CA 94025 Telephone: (650) 473-2600 Facsimile: (650) 473-2601 Attorneys for Non-Party Subpoena Recipient PICTAGE, INC. SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF LOS ANGELES IN RE SUBPOENA MARCI FONG, an individual, Petitioner, v. GARY FONG, Respondent. Case No. YD042895 OPPOSITION TO MOTION TO COMPEL NON-PARTY WITNESS TO COMPLY WITH SUBPOENA Date: April 23, 2007 Department: J Time: 8:30 a.m. OPPOSITION TO MOTION TO COMPEL Case No. YD042895 MPI:998016. 1 I. INTRODUCTION & RELEVANT BACKGROUND Pictage, Inc. ("Pictage") is not a party to this proceeding. It has received a pair of virtually identical non-party records subpoenas from Ms. Kington (one dated July 26, 2006, the other dated November 27, 2006) which seek production of a broad scope of documents over a period of more than a decade, and has timely asserted objections thereto. Ms. Kingston has done virtually nothing to indicate that the documents in question are of the slightest importance to her. Save for a single letter and a single telephone call in January (which focused on a courtesy deadline extension, not substantive issues), nearly five months after Pictage initially objected to her discovery and two months before the instant motion was apparently filed, Ms. Kingston made absolutely no attempts whatsoever to contact Pictage: no calls, no letters, no faxes, no e-mails. There have otherwise been seven months of silence. Ms. Kingston has now compounded her inactivity with poor tactics. On April 6, 2007, it was brought to Pictage's counsel's attention --by counsel for Mr. Fong, Ms. Kington's adversary --that a motion to compel had been filed against Pictage weeks before that was set for hearing on April 23, 2007. This was the first that Pictage or its counsel had learned of the motion; no meet and confer regarding an impending motion occurred, no warning was given, and --most shockingly --no service was made of the motion papers themselves. An April 6, 2007 voicemail to Barbara Hammers, counsel for Ms. Kingston, seeking confinnation of this information and requesting an explanation has yet to be returned. Pictage, already in an undesirable position as a non-party embroiled in a divorce proceeding, thus now finds itself forced to respond to an ill-deserved motion on incredibly short time without having had any opportunity to properly consider and prepare an opposition. As set forth below, Pictage respectfully requests that Ms. Kingston's motion be taken offcalendar for having failed to comply with the necessary prerequisites for holding a hearing on such a motion, for its costs incurred in opposing this unjustified motion, and for any further relief the Court may deem warranted in light of Ms. Kingston's conduct toward a non-party in this matter. I. MS. FONG FAILED TO MEET AND CONFER AS REQUIRED BEFORE BRINGING HER MOTION TO COMPEL It is well-established in California that a party may not bring a motion to compel any liscovery without first making a "reasonable and good faith attempt" to resolve any outstanding ssues infonnally with opposing counsel. E.g., Cal. Code Civ. P. §§ 2016.040, 2030.300(b). The goals behind this policy, including mandating diligence and "good hehavior" on the part of counsel and reducing discovery-related burdens on courts, are particularly acute where, as here, a non-party is involved. "The distinction between parties and nonparties reflects the notion that, by engaging in litigation, the parties should be subject to the full panoply of discovery devices, while 10nparty witnesses should be somelfhat protectedfrom the burdensome demands of litigation." \.fonarch Healthcare v. Sup. Ct., 78 Cal.App.4th 1282, 1290 (2000) (emphasis in original; citation omitted). Ms. Kingston served two virtually identical subpoenas on Pictage in this action. The first Nas dated July 26, 2006; Pictage timely served objections thereto on or about August 21, 2006. see Declaration of Barbara K. Hammers, Esq. ("Hammers Decl.") filed in support of Motion to Compel Non-Party Witness to Comply With Subpoena ("Motion"), Exh. Cat 1: 1-2,2:9. The ;econd was dated November 27,2006; Pictage timely served objections thereto on or about )ecember 15, 2006. See Hammers Oecl., Exh. 0 at 1: 1-2, 2:9. Beginning with the August 21,2006 service of Pictage's objections to the first subpoena, Kingston did not telephone, e-mail, fax or correspond with Pictage or counsel for Pictage until January 12,2007. See Declaration of Joshua D. Baker filed herewith ("Baker Decl.") at ~ 3. In or about January 12, 2007, counsel for Ms. Kingston sent a letter to counsel for Pictage -equesting a meet-and-confer regarding the second subpoena. See id. at' 2. On or about January 17,2007, counsel for Pictage and Ms. Kingston spoke by telephone, during which call counsel for Pictage indicated that he was then unable to conduct a substantive meet-and-confer without ;onsulting with his client regarding certain issues but that Pictage would work with Ms. Kingston. see id. at ~ 4. The bulk of the conversation focused on Ms. Kingston obtaining an extension of her right to file a motion to compel further responses (for the second subpoena only) in order to preserve her rights for the future. See id. at ~ 4. Pictage agreed, as a theoretical matter, to extend the motion to compel deadline, and sent Ms. Kingston a letter to that effect. See id. at ~~ 4,5. Ms. Kingston has not contacted Pictage or counsel for Pictage even once, for any purpose, since that day. See Baker Decl. at ~ 6. Moreover, Ms. Kingston has never once contacted Pictage or counsel for Pictage to indicate that a motion to compel was being seriously considered, was about to be filed, or had been filed. See id. at ~~ 7, 9,10,13,18. The issue was addressed only once, and only in the context of reservation-of-rights. See id. at ~~ 4, 7. No other contact, besides this one letter and one call, have ever been made. Ms. Kingston now attempts to defend her utter lack of attention to her own discovery . requests by attempting to shift the burden to Pictage, a non-party. See, e.g., Hammers Dec!. ~ 7 ("Since this letter was received, Pictage has not ... contacted my office to resolve this outstanding discovery issue.") However, Ms. Kingston does not, because she cannot, provide any legal citation supporting shifting the burden of such interaction to a subpoena recipient -particularly a non-party --and does not even attempt to explain her own lack of diligence. This is all the more baffling because Ms. Kingston, according to her moving papers, apparently has been spending quite a bit of time meeting and conferring with Mr. Fong regarding Pictage and the two subpoenas she has issued to the Company. See, e.g., Motion at 3:9-1 0 ("Petitioner's counsel requested that Rejpondent ask Pictage to comply with the subpoena") (emphasis added); 3: 10-12 ("When no cooperation was forthcoming, Petitioner's counsel sent a letter again requesting cooperation from Respondent in securing the documents from Pictage.") (emphasis added); 3:1315 ("Respondent's counsel stated in a letter that 'Mr. Fong will make available all documents...."). What Ms. Kingston hasn't bothered to do, for reasons that aren't clear, is spend any time contacting or communicating with the recipient of her subpoena or their lawyers. Because Ms. Kingston has failed to conduct reasonable and good faith meet-and-confer negotiations as required under California law before noticing a motion to compel, this motion should be taken off calendar. [II. :MS. FONG FAILED TO SERVE PICTAGE WITH HER MOTION TO COMPEL Although her failure to conduct remotely reasonable meet-and-confer efforts before bringing the instant motion cannot be excused, it pales in comparison with the fact that Pictage was not given notice of her motion to compel even after it was filed. Ms. Kingston never bothered to serve Pictage with the motion, despite having apparently filed with the Court in some fonn twice! Counsel for Pictage first became aware of the pendency of this motion on April 6, 2007, weeks after it was apparently filed, when he received a telephone call from counsel for Mr. Fong, Ms. Kingston's adversary, inquiring whether he was "aware of the April 23 hearing" and whether he "plan[ned] to file papers." Baker Decl. at ~~ 7, 8. Counsel for Pictage immediately confirmed that his secretary also had not received any notice of the motion (she had not), and subsequently searched to ensure that he had not somehow overlooked them (he had not). See id. at ~~ 10, 11, 18. Counsel for Mr. Fong kindly forwarded a set of Ms. Kingston's motion papers by facsimile on the evening of April 6, 2007. See Baker Dec!. ~ 15. Thus, the first time counsel for Pictage ever had an opportunity to review Ms. Kingston's motion papers it was over the Easter holiday weekend, mere days prior to this opposition being due, and weeks after service should have occurred. See id. Compare L.A. Sup. Ct. R. 7.12(b)(I), (b)(3) (barring using time and manner of service of papers to the disadvantage of a party or giving inconvenient notice "late on Friday afternoon or the day preceding a secular or religious holiday."). The law is clear that Ms. Kingston's failure to actually deliver notice of the impending motion to Pictage is fatal to the instant motion; it must be taken off calendar or denied. See, e.g., Bonzer v. City ofHuntington Park, 20 Cal.AppAth 1474 (1993) (rebuttable presumption created by proof of service ceased to exist upon presentation of evidence of declarations of no actual notice, and trial court's denial of motion to set aside judgment based on lack ofnotice was clear abuse of discretion). The facts at bar are far, far more egregious, however. A review of the court docket this morning reveals that no proofofservice has been filed regarding this motion. See Baker Decl. at ~~ 19, 20. Equally shocking, an urgent voicemail to counsel for Ms. Kingston on the evening April 6, 2007 regarding this motion and the circumstances surrounding it still hasn't been returned four days later. See Baker Oed ~ 17. Thus, it appears that Ms. Kingston has not even attempted to give Pictage notice of this motion. As a result, Pictage --a non-party who has absolutely no reason to be monitoring the docket --has been forced to conduct an unnecessary and expensive "fire drill" including having its counsel reviewing motion papers over the Easter holiday weekend IV. MS. FONG IS NOT ENTITLED TO ANY OF THE DISCOVERY THAT SHE SEEKS TO COMPEL IN THE INSTANT MOTION Because Pictage has been utterly blindsided by its belated notification of this motion, Pictage has not been able to fully research or brief the substantive merits ofMs. Kingston's motion. The merits of the motion are not properly before the Court in any event because, as noted above, Ms. Kingston has not met the prerequisites for filing such a motion. Should the Court be inclined, for any reason, to consider the merits, Pictage would of course respectfully request a full period of time in which to consider and brief the issues, including a corresponding continuance of the hearing to provide Pictage the opportunity to be heard and defend itself that Ms. Kingston has seemingly willfully denied it here. Pictage would be remiss, however, if it did not point out to the Court that Ms. Kingston has served two seriatim subpoenas on Pictage, seeking virtually identical documents, the latter of which is different only in that it is broken down into subcategories. After receiving Pictage's timely-served written objections in response to her first subpoena, however, Ms. Kingston did absolutely nothing to reserve her rights with Pictage and she certainly didn't move to compel well. Pictage's extension of Ms. Kingston's right to file a motion to compel expressly excluded the issues relating to and flowing from the first subpoena. She has thus waived her right to all of the discovery she now seeks, and cannot justly compel any of it. This is particularly true concerning a non-party to whom she has shown absolutely no diligence whatsoever and, of late, has treated with abuse of process. If the Court chooses for any reason chooses to hear merits arguments on Ms. Kingston's discovery, however, Pictage will of course provide such briefing. V. MS. FONG SHOULD BEAR THE COSTS OF PICTAGE HAVING TO RESPOND TO HER UNJUSTIFIED MOTION If a motion to compel response is filed, the court "shall" impose a monetary sanction against the losing party unless it finds that party made or opposed the motion "with substantial justification" or other reasons why sanctions would be "unjust." E.g., Cal. Code Civ. P. § 2031.300(c). Here, Ms. Kingston failed to meet and confer before filing her motion. Upon filing her motion, she failed to serve it upon the responding party. When the responding party became aware of the pending motion and left an urgent message requesting that counsel for Ms. Kingston return the call as soon as possible, no response whatsoever was forthcoming. And even if none of this was the case --and it is --if Pictage were provided an opportunity to briefthe merits of the motion Ms. Kingston would still lose as a matter of law due to her own persistent lack of diligence. Under these circumstances, there can be no mistake that a finding of sanctions against Ms. Kingston "shall" be warranted and just. This Court should order Ms. Kingston to pay Pictage for its attorney fees incurred addressing this motion with Mr. Fong's and Ms. Kingston's counsel and in preparing its opposition to Ms. Kingston's motion. If the motion is taken off-calendar before any hearing, such fees will amount to approximately $3,510. See Baker Decl. ~ 21. If travel to Los Angeles for a hearing is required, however, additional time for travel, preparation and attendance --perhaps an additional $3,780, for a total of $7,290 --will also be incurred, in addition to any direct expenses such as airline tickets from San Francisco. See id. VI. CONCLUSION For all of the foregoing reasons, non-party Pictage, Inc. respectfully requests that this court take Ms. Kingston's motion to compel off calendar, or deny it in its entirety, and award Pictage its costs incurred in opposition thereto. Dated: April 10,2007 \ Respectfully submitted, O'MELVENY & MYERS LLP |
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