2009-00036948-CU-PN
Hammer Lane RV & Mini-Storage LP vs. Jack S Johal
Nature of Proceeding:
Filed By:
Motion to Compel Compliance with January 16, 2014 Court Order
Alves, Suzanne M.

***If any party request oral argument, then at the time the request is made, the
requesting party must inform the curt and opposing counsel of the specific
issue(s) on which oral argument is sought.***

The motion of Plaintiffs Hammer Lane R.V. & Mini-Storage L.P., Hammer Lane
Management LLC, Phillaur Corp., The Richard and Ravinder Samra Family Trust, by
and through Richard Samra, as Co-Trustee, and Richard Samra, individually
(collectively “Plaintiffs”) for an order compelling compliance with the court’s order of
January 16, 2014 (the “Discovery Order”), and for issue, evidentiary and monetary
sanctions is DENIED as follows:

This litigation arises out of the representation of Plaintiffs, in various matters, by
Defendant Jack Johal (“Johal”) and a law firm, Defendant Hanson Bridgett LLP (“HB”).
Johal allegedly was associated with HB from 2003 to 2009. In their Second Amended
and Supplemental Complaint, Plaintiffs allege that Johal, HB and others committed
professional negligence, breached their fiduciary duties and engaged in unfair
business practices. Among other things, Plaintiffs contend that in 2008 Johal seized
control of Hammer Lane R.V. & Mini-Storage LP from its rightful general partner and
HB client, Hammer Lane Management LLC. They further contend that this seizure
was accomplished through Johal’s creation of HLMS LLC, which he used to oust
management from control over the partnership and to assume the reins of leadership.
Whether HB knew about or ratified Johal’s formation and representation of HLMS LLC-
-alleged to have occurred contrary to Plaintiffs’ interests–are disputed issues in the
case. By its Discovery Order, this court granted Plaintiffs’ motion to compel HB to serve
further responses to four document requests. The Discovery Order required HB to
produce a June 2009 letter from HB to Johal purportedly documenting funds that HB
withheld from Johal’s capital account for fees and costs incurred on behalf of HLMS
LLC. Johal had testified to the letter’s existence, and HB listed the letter as an
attorney-client privileged document in a privilege log served with discovery responses
to the subject requests. The court ordered production of the June 2009 letter on
grounds that it was relevant to HB’s knowledge and ratification of Johal’s conduct vis-à
-vis HLMS LLC. Furthermore, in ordering the 2009 letter produced, the court overruled
HB’s objection that the letter was protected by any attorney-client privilege between
Johal or HLMS LLC as client, on the one hand, and HB as attorney, on the other. At
the time the court overruled the objection, no party questioned whether the June 2009
actually existed.

After the court entered the Discovery Order, however, HB searched for the 2009 letter
and concluded that it never existed. (See Robles Decl., ¶¶ 3-5.) Thus, HB did not
produce any such letter. However, HB’s search for the document did reveal a
previously undisclosed, relevant email related to deductions from Johal’s capital
account. HB has concluded that the email is protected from disclosure based upon its
own attorney-client privilege with its in-house counsel. Thus, HB served a
supplemental privilege log and listed the email as a privileged document.

This motion follows. Plaintiffs argue that, to comply with the Discovery Order, HB must
produce the 2009 letter as well as the email. Plaintiffs seek compliance as well as
issue, evidence and monetary sanctions.

Discussion

With respect to the June 2009 letter, the court accepts HB’s representation–for
purposes of this motion only–that the document never existed. HB has produced
persuasive evidence that it accepted Johal’s representation of the document’s
existence and proceeded accordingly. HB has also produced evidence that it has
diligently searched for the document and has been unable to find it. It appears that
Johal may have referred to the letter in lieu of a withdrawal agreement that was create
in June 2009 and has been produced. (See Muñoz Decl., ¶ 11.)

Moreover, there does not appear to be any dispute that, because Johal did not resign
from HB until the end of June 2009, and because deductions from his capital account
would not have been made until that point, it is unlikely that a June 2009 letter was
sent with regard to Johal’s capital account deductions. Rather, HB reasons that such
a communication would not likely have been created until after Johal resigned, i.e., no
earlier than July 2009, when the email was created. Based upon the totality of
evidence submitted, the court concludes, for purposes of this motion, that HB was not
at fault for failing to produce the 2009 letter and that the failure was not a violation of
the Discovery Order.

Next, the court addresses Plaintiffs’ contention that HB must produce the July 2009
email. The court concludes that HB need not produce the email at this time because it
was not a subject of the Discovery Order. Hence, HB was not required to produce the
mail to comply with the Discovery Order. In reaching this conclusion, the court is
aware of language in the Discovery Order generally requiring HB to produce responsive documents other than the 2009 letter and additional documents explicitly
discussed in the Discovery Order. Notwithstanding this language, the Discovery Order
did not require HB to produce an assertedly privileged document that had not been
discovered before the Discovery Order was entered.

Because the instant motion rests upon whether HB was required to produce the email
to comply with the Discovery Order, the court need not address and does not address
the question whether the email is privileged. The court merely concludes that the
email need not be produced in compliance with the Discovery Order. To the extent
Plaintiffs wish to compel production of the email, they must do so based on grounds
other than compliance with the Discovery Order.

Because the court concludes that HB is not required to produce the June 2009 letter or
the July 2009 email to comply with the Discovery Order, it DENIES Plaintiffs requests
for evidence and/or issues sanctions. Moreover, because the court finds that HB was
justified in opposing this motion, it DENIES monetary sanctions corresponding to
Plaintiffs’ fees and costs incurred in bringing this motion.

Plaintiffs’ request for judicial notice of court documents is UNOPPOSED and
GRANTED.

Conclusion

The motion is DENIED.

The minute order is effective immediately. No formal order pursuant to CRC 3.1312 or
further notice is required.