Opposition (Click here to view document) - SC Superior Court E-Filing

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Nossaman LLP 

Thomas D. Long (C4105987) 

tlong@nossaman.com 

777 S. Figueroa Street,34th Floor 

Los Angeles, CA 90017 

Telephone : 213.612.7 8OO 

Facsimile: 213.612.7 801 

Nossaman LLP 

Michael G. Thornton (CA1 16711) 

mthornton@ nossaman. co m 

James H. Vorhis (CA 245034) 

jvorhis@nossaman.com 

Salezka L. Aguirre (CA 260956) 

sagu irre@nossaman.com 

50 California Street,34th Floor 

San Francisco, CA 94111 

Telephone: 415.398.3600 

Facsimile: 415.398.2438 

Attorneys for Defendants REGENCY 

SKYPORT LLC, BLACKROCK REALTY 

ADVISORS, INC., WESTERN 

MULTIFAMILY LLC, AND DOUGLAS 

ROSS CONSTRUCTION, INC. 

THE SONORA HOMEOWNERS 

ASSOCIATION, 

VS. 

SUPERIOR COURT OF THE STATE OF CALIFORNIA 

Plaintiff, 

REGENCY SKYPORT LLC, BLACKROCK 

REALTY ADVISORS, lNC., and DOES 1 

THROUGH 2OO, 

Defendants. 

COUNTY OF SANTA CLARA 

CASE NO. 1 -08-CV-1 25063 

DEFENDANTS' OPPOSITION TO 

PLAINTIFF'S MOTION TO COMPEL 

Date: August 24,2012 

Time: 12:00 p.m. 

Call-in: TBD 

E-FILED 

Aug 21, 2012 8:00 AM 

David H. Yamasaki 

Chief Executive Officer/Clerk 

Superior Court of CA, County of Santa Clara 

Case #1-08-CV-125063 Filing #G-46232 

By G. Duarte, Deputy 

lOtl fO COlVlPel 

1-08-CV-1250ól

E-FILED: Aug 21, 2012 8:00 AM, Superior Court of CA, County of Santa Clara, Case #1-08-CV-125063 Filing #G-46232 

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INTRODUCTION 

Defendants Regency Skyport LLC ("Regency"), BlackRock Realty Advisors, lnc. 

("BlackRock"), Western Multifamily LLC ("Western Multifamily"), and Douglas Ross 

Construction, Inc. ("DRC") (collectively "Defendants") hereby oppose the Motion to 

Gompel filed by Plaintiff Sonora Homeowners Association by way of its August 3 and 16, 

z¡jzletter briefs. plaintiff seeks the depositions of two witnesses, and the production of 

many categories of documents. lt does so under the guise that it must oppose 

BlackRock's Motion for Summary Adjudication. But Plaintiff's true motive is seen 

throughout the brief. Plaintiff would like to know how much money was made from the 

sale of the units at the Sonora. Nevertheless, the Motion must be denied in its entirety 

because it fails on a number of procedural and substantive grounds, as described below. 

II. LEGAL ARGUMENT 

A. Plaintiff has not provided good cause for deposing Mike Ward.1 

ln its Motion, Plaintiff seeks to depose Mike Ward, the risk manager for BlackRock, 

because he was allegedly involved in the formation of Regency, procured insurance 

policies for the project, and he signed the verifications to BlackRock's responses to 

plaintiff's first set of discovery. (See Plaintiff's August 3 letter, p. 1.) Because not all 

these assertions are true, and the other information sought is irrelevant to this action, 

there is no good cause to compel this deposition. 

First, Mike Ward was not involved in the formation of Regency. (Declaration of 

Michael Ward, fl 2.) Plaintiff has not produced any evidence to the contrary because 

none exists. plaintiff attaches deposition testimony from Derek Helgeson to support its 

position, but none of that testimony indicates Mr. Ward's involvement with forming 

Regency. Mr. Ward's sole involvement with the project was the procurement of 

insurance . (td. at 3.) He was not involved in the construction, management or operation 

' pla¡ntiffs motion also makes reference to a potential deposition of Dale Gruen. That 

issue is now moot because Mr. Gruen's deposition was taken on August 14,2012- 

r7 ì te7 2.DOC 

DEFENDAI'¡TS'O 

1-08-CV-12-50ó3


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of the Sonora at anY time. (/d.) 

Second, testimony related to the insurance policies procured by BlackRock for 

Regency is unnecessary and irrelevant. lt is undisputed that Regency purchased two 

insurance policies: the Chartis insurance policy that is the subject of the related insurance 

coverage action in front of Judge Kleinberg, and a mold insurance policy. These policies 

were deposited into the depository and Plaintiff is aware of the coverage disputes that 

exist. Testimony related to procurement of those policies, which is all Mr. Ward could 

offer is irrelevant to this action. Plaintiff repeatedly references BlackRock's Motion for 

Summary Adjudication as a reason for its Motion, but the testimony sought here will not 

assist plaintiff prove alter ego in any way. How Regency purchased its insurance does 

not relate to any of the alter ego factors. 

Third, while Mr. Ward signed the verifications to BlackRock's first set of discovery, 

nothing further will be gained by having him testify. BlackRock designated Derek 

Helgeson as its PMK, and he was already deposed. ln fact, much of the basis of 

plaintiff,s Motion is the Helgeson testimony. Asking Mr. Ward to testify about topics for 

which Mr. Helgeson was designated BlackRock's PMK will be duplicative and 

unnecessary. 

B. plaintiff is not entitled to depose Defendants' Undisclosed Consultant 

John Baumann. 

plaintiff also seeks to depose John Baumann, an undisclosed consultant hired by 

Defendants at the outset of this litigation. Plaintiff's reasoning for seeking this deposition 

is that Dennis Govan, another expert retained and disclosed by Defendants, "testified that 

he reviewed and relied on Mr. Baumann's field notes and photographs'" (August 16 

letter, fl 1.) Also that Govan "walked the site with Baumann and discussed the water 

testing performed at the podium slab and the waterproofing at that location." (/d.) Lastly' 

that "Mr. Govan was present for only a small amount of the testing of the podium deck 

and the planters. However, he has offered opinions about those components based on 

the photographs, testing, and observations performed by Baumann." (/d.) But as the 

27t)91 ,2.DOC 

INTIFF'S MOTION TO COMPEL 

l-08-cv- 125063


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accompanying Declaration of Dennis Govan clarifies, Mr. Govan did not rely on 

Baumann's opinions in reaching his opinions in this case. (Declaration of Dennis Govan, 

ft3.) 

Requiring Defendants to produce Mr. Baumann for deposition would improperly 

tread on the protections for attorney work product in the Code of Civil Procedure. Code 

of Civil procedure S 2018.030(b) provides that attorney work product is not discoverable. 

The work product protection extends to retained consultants. (Scofsman Mtg. v. Sup. Cf. 

(1966) 242 Cal.App.2d 527 , 530.) Under that protection, the identities and opinions or 

experts retained by counsel solely as a consultant - 

prepare for trial, and not as a trial witness - 

to help evaluate the case or to 

are entitled to qualified work product 

protection. (See Wittiamson v. Sup. Ct. (Shell Oil Co.) (1978) 21 Cal.3d 829, 834') 'The 

purpose for such a rule is to encourage parties to seek expert advice in evaluating the 

case without having to disclose unfavorable opinions, and to encourage experts to serve 

as consultants. (/d.) 

Mr. Baumann indisputably falls in this category, and any knowledge he has 

gathered in his role as a consultant must be protected accordingly. He was a retained, 

but undisclosed, consultant hired by Defendants at the outset of this litigation. ln that 

role, he assisted Defendants' prior counsel, Newmeyer & Dillion, evaluate Plaintiff's 

claims. However, Mr. Baumann was never disclosed as a testimonial expert for 

Defendants. 

Grand Lake Drive ln, lnc. v. Superior Court in and for Alameda (1960) 179 

Cal.App.2d 122,129-130, a case cited in Plaintiffs August 16 letter, requires a party 

seeking the deposition of an undisclosed expert to make a showing of good cause. The 

plaintiff in Grand Lake Drive In had slipped and fallen on a sidewalk. (/d. at 124-) The 

defendant retained a consultant to perform "slipperiness tests" on that sidewalk' (/d.) 

plaintiff moved to compel testimony from the consultant regarding those tests, which the 

trial court granted. The defendant sought a writ to prevent enforcement of the order. (/d.) 

The appellate court reversed and remanded the issue, determining that the trial court had 

)7t297 z.DOC 

DEFENDANTS; gPPgSTTOI.I TO PLAINTIFF'S MOTION TO COMPEL 

l-08-cv- r25063


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not required any showing of "good cause." (ld. at 132.) But the appellate court went 

further and described the type of scenario where good cause could be shown: 

"lt is clear that if the object inspected and tested by the expert is no 

longer available and has not been examined or tested by the 

opponent's experts, good cause to interrogate the expert exists. 

Similarly, where the testing has so altered the object tested that the 

opponent cannot make like tests, inquiry should be allowed..." (ld. 

at 131 .) 

Plaintiff claims good cause exists because Defendants' disclosed expert, Dennis 

Govan, has documents and pictures received from John Baumann in his expert file and 

he briefly spoke to Mr. Bauman a couple of times. (Declaration of Dennis Govan, flfl 2, 

3.) These facts do not show good cause. Plaintiffs experts have been able to test and 

photograph the same areas covered in Mr. Baumann's notes and photographs. 

ln addition, as the accompanying Declaration of Dennis Govan confirms, Mr. 

Govan did not rely on any opinions formed by Mr. Baumann in formulating his opinions 

and own scope of repair in this action, and he does not rely on any conversations he had 

with Mr. Baumann. (Declaration of Dennis Govan, fl 3.) Mr. Govan's deposition 

testimony bears that out. Nevertheless, Plaintiff's counselwas able to question Mr. 

Govan at his deposition about his recollection of any conversations he had with Mr. 

Baumann. To the extent Mr. Govan reviewed, or even relied, on the documents 

produced by Baumann, Plaintiff's counsel has had, and still has, ample opportunity to ask 

Mr. Govan about those documents because those documents were produced to Plaintiff 

as part of Mr. Govan's file, and because another deposition session is scheduled with Mr. 

Govan for Tuesday, August 21. 

For these reasons, it would be improper to order Mr. Baumann to appear for a 

deposition. There is simply no good cause to requÍre him to provide any testimony 

whatsoever. To the extent that the Special Master disagrees with our position and 

permits Plaintiff to depose Mr. Baumann, the scope of the deposition must be limited to 

the content of his discussions with Mr. Govan. Anything else would be privileged since 

only those conversations and the documents referred to above were communicated to 

27t297 2.DOC 

oere¡¡on rs uonoN To GoMPEL 

l -08-cv- 125063


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Mr. Govan. Any attempt to elicit opinions or facts not directly communicated to Mr. 

Govan would run afoul of the work-product doctrine and must be rejected. 

C. Plaintiff is not entitled to any of the Documents it seeks. 

Plaintiff seeks the following categories of documents in its motion: 

. Financial records showing the distributions to Regency's members. 

. Documents showing financial assurances given by Regency to Douglas 

Ross Construction. 

. RegencY's meeting minutes. 

o Documents showing payment to Regency's vendors' 

These requests should be denied for three distinct reasons. First, it is procedurally 

improper to require production of those records. Plaintiff bases its Motion to Compel on 

two waves of discovery it served on Defendants; the first in2011, the second in July 

2012. As to the first set of discovery, Plaintiff has waived its right to compel further 

production because under the Code Plaintiff was required to procure an order compelling 

production of those documents. lt has not done so, and is accordingly prevented from 

seeking them now. As to the second, the remedy it seeks is premature as the discovery 

responses are not.yet due and Defendants have an absolute right to respond and object 

as provided by law. 

Second, the documents sought are irrelevant to this construction defect matter. 

Simply put, they are not reasonably calculated to lead to the discovery of admissible 

evidence. Third, the financial documents sought by Plaintiff are confidential and 

privileged. 

1. Ptaintíff has Waíved its Right to Pursue this Discovery, and its Efforts 

to Force the Productíon of Documents Based on Recently Serued 

Discovery is Premature. 

Plaintiff bases its motion on the two sets of discovery it has served on Defendants 

(August 3 letter, p. 3.) The first set of discovery was seryed on Defendants in August 

2011, the second in July 2012. To the extent Plaintiff is attempting to compel the 

l-()8-CV-125063 

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production of documents based on its first set of discovery, it has waived such challenge. 

Under Code of Civil Procedure S 2031.310(c), Plaintiff must serve a motion to compel the 

production of documents within 45 days of the responses in question. The failure to 

make such a motion within the proscribed time limit waives the right to compel further 

responses or documents. (/d.; see also Sperber v. Robinson (1994) 26 Cal.App.4th 736, 

745.) Defendants served their responses to Plaintiff's first sets of discovery on 

September 30,2011. (See, e.g., Exhibit lto Plaintiff's Motion.) Accordingly, Plaintiff was 

required to bring a motion to compel further responses or documents by November 14, 

2011. lt did not do so, and its failure waived Plaintiff's right to pursue those records as a 

matter of law. 

As an example, in its first set of discovery Plaintiff sought "all documents related to 

Regency's operating agreement in 2011." Plaintiff never undertook any efforts to compel 

production of records related to that request. lt cannot now, nearly a year later, seek to 

compel their production. 

To the extent new requests for production were included in Plaintiff's second set of 

discovery served in July, the Motion is premature. Under Code of Givil Procedure $ 

2031.260, a party has 30 days from service of requests for production of documents to 

respond. Here, Plaintiff served its second set of requests for production on July 27, 

2012. Defendants' responses are due on August 27 ,2012. Until that date has passed 

and the parties have met and conferred in good faith, Plaintiff has no basis to move to 

compel production. 

2. The Documents Sought are lrrelevant to this Action. 

Plaintiff is correct in asserting that discovery statutes are construed broadly. 

(Motion, p. 3, citing Greyhound Corp. v. Superior Court (1961) 56 Cal.2d 355, 375, 376.) 

However, those statutes are not so broad as to allow for unnecessary fishing expeditions. 

The standard stated by Plaintiff at page 3 of its August 3 Motion explains why these 

records are irrelevant and should not be produced: "ln discovery, information is relevant 

to the subject matter if it might reasonably: (1) assist a party in evaluating the case; (2) 

27t297 2.DOC 

DEFEND 

. 

l-08-cv-125063


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preparing for trial; or (3) facilitating settlement thereof." (August 3 Letter, p. 3; see also 

Gonzalez v. superior court (1995) 33 Cal.App.4'n 1539, 1546.) The documents sought in 

the Motion fail to meet any of those criteria. 

None of the documents sought assist any party in evaluating the case. This is a 

construction defect matter. None of the records sought in the Motion tend to prove or 

disprove the presence or absence of any alleged defect at the Sonora. Plaintiff's true 

motive for seeking these financial records is apparent from the content of its Motion. lt 

would like to assert its allegation that Regency made a significant profit from the sale of 

the units at the Sonora in order to prejudice the jury against Regency- That fact, 

however, is irrelevant to this action, and would be prejudicial to Defendants if admitted at 

trial. Plaintiff does not need to know the financial position of Regency to prove the 

existence of construction defects at the Sonora. Nor does it need the invoices paid to the 

conSultants hired to manage the construction, or the corporate or accounting records of 

Regency. ln fact, none of these items provides any light on the existence or non- 

existence of construction defects at the Sonora. For the same reasons, the documents 

sought will in no way aid in the preparation for trial' 

As for the third prong, it is unclear why the production of the records sought will in 

any way facilitate settlement. Plaintiff has made no argument to that effect. 

3. The Financial Records Sought by Plaintiff are Confidential and 

Privileged. 

plaintiff seeks two types of highly confidential and sensitive financial documents in 

the Motion: documents provided to DRC at the outset of the construction as financial 

assurance of the developer's financial position, and records showing the profits made by 

Regency for the sale of the units. These documents are not only irrelevant to this 

litigation, as discussed above; they are also privileged financial records. A right of 

privacy exists as to a pañy's confidential financial affairs, even were the information 

relevant to the litigation (which it is not here). (See Crfy of Carmel-by-the-Sealv. Young 

(1g20) 2 Cal.3d 25g,268.) Moreover sensitive commercial documents in the possession 

2'11297 z.DOC 8 I -08-cv-125063


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of corporate entities may be entitled to privacy protections. (See Fireman's Fund lns. Co. 

v. SuperiorCourt (1991)233 Cal.App.3d 1138, 1131.) Such protections should be 

applied here to prevent production of any highly-sensitive (and irrelevant) financial 

documents. 

ln addition, these records are protected under Civil Code $ 3295, which states 

(a) The court may, for good cause, grant any defendant a protective 

order requiring the plaintiff to produce evidence of a prima facie 

case of liability for damages pursuant to Section 3294, prior to the 

introduction of evidence of: 

(1) the profits the defendant has gained by virtue of the wrongful 

course of conduct of the nature and type shown by the evidence. 

(2) the financial condition of the defendant. 

(c) No pretrial discovery by the plaintiff shall be permitted with 

respeci to the evidence referred to in paragraphs (1) and (2) of 

subdivision (a) unless the court enters an order permitting 

such discovery pursuant to this subdivision. (emphasis 

added.) 

The statute then goes on to permit plaintiffs to subpoena witnesses to trial for this 

purpose. The statute does refer to the possibility that defendants may be required to 

identify documents and witnesses with that sensitive financial information. However, the 

Motion is not seeking the mere identification of records or individuals. lt is seeking the 

production of financial records clearly protected by S 3295. That cannot be ordered 

based on this record. 

4. tn the Event the Courf Grants the Motion, the Court should Require 

Plaintiff to Enter into a Protective Order. 

There is no reason for any disclosure of these financial records. However, if this 

court disagrees with Defendants' position on these documents, Defendants believe that 

disclosure of these highly sensitive financial documents may only take place under an 

appropriate protective order. (See Moskowitz v. Superior Couti (1982) 137 Cal.App.3d 

27t297 z.DOC g _ l-08-cv-12s063 

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313.) We also ask that the Order requiring production, if any, be stayed so Defendants 

can seek alternative ways to protect their rights' 

lll. GoNCLUSION 

Based on the foregoing, Defendants respectfully request this Court deny Plaintiff's 

Motion to Compel in whole. 

DATED: August 20,2012 

NOSSAMAN LLP 

By: 

271297 z.DOC l0 

for Defendants REGENCY 

SKYPORT LLC, BLACKROCK REALTY 

ADVISORS, INC., WESTERN MULTIFAMILY 

LLC, AND DOUGLAS ROSS 

CONSTRUCTION, INC. 

iffitoN To PLAINTIFF's MorloN To coMPEL 

1-08-CV-125063

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The undersigned declares: 

PROOF OF SERVICE 

I am emoloved in the Countv of San Francisco, State of California. I am over the 

aqe of 18 and äm'not a party to thê within action; my business address is c/o 

Nössaman LLP, 50 Californía Street, 34th Floor, Sah Francisco, CA 94111. 

On August20,2012, I served the foregoing 

DEFENDANTS' OPPOSITION TO PLAINTIFF'S MOTION TO COMPEL 

on parties to the within action as follows: 

X (By Electronic.service) To be served on the interested.parties via electronic 

service using the Electronic Filing System required.by this Court. ]h_e..9riginal of 

this docume-nt and of the service reCeipt produced by the Electronic Filing 

System will be maintained in this office. 

Executed on August 20, 2012. 

X (STATE) I declare under penalty of perjury under the laws of the State of 

California that the foregoing is true and correct. \ 

-1- 

PROOF OF SERVICE

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