1 2 3 BRIGGS LAW CORPORATION [FILE: 1593.13] Cory J. Briggs (State Bar no. 176284) Anthony N. Kim (State Bar no. 283353) 99 East "C" Street, Suite 111 Upland, CA 91786 Telephone: 909-949-7115 4 5 Attorneys for Plaintiff San Diegans for Open Government 6 SUPERIOR COURT OF THE STATE OF CALIFORNIA' 7 SAN DIEGO COUNTY- HALL OF JUSTICE 8 9 10 11 12 13 14 15 16 17 18 19 ) CASE NO. 37-2012-00088065-CU-MC-CTL ) Plaintiff, ) PLAINTIFF SAN DIEGANS FOR OPEN ) GOVERNMENT'S OPPOSITION TO ) MOTION TO COMPEL FURTHER vs. ' ) TESTIMONY AND PRODUCTION OF CITY OF SAN DIEGO; and ALL PERSONS) ADDITIONAL DOCUMENTS BY LINDA INTERESTED IN THE MATTER OF THE) PERINE OR, IN THE ALTERNATIVE, A RENEWAL OF THE SAN DIEGO TOURISM) PRIVILEGE LOG AND REQUEST FOR MARKETING DISTRICT, THE LEVYING OF ) SANCTIONS; DECLARATION OF CORY ASSESSMENTS UPON THE ASSESSED) J. BRIGGS; DECLARATION OF LINDA BUSINESSESFORAPERIODOFTHIRTY-NINE) PERINE; AND SUPPLEMENTAL AND ONE-HALF YEARS, AND THE) DECLARATION OF LINDA PERINE PRESCRIBING OF A METHOD FOR) COLLECTION OF ASSESSMENTS, ' ) Action Filed: December 19, 2012 Department: C-73 (Wohlfeil) Defendants. 11---------------------~--~----Hearing Date: May 11, 20 15 Hearing Time: 3:00p.m. SAN DIEGANS FOR OPEN GOVERNMENT, ~ 20 ,, 21 Plaintiff San Diegans for Open Government ("SDOG") respectfully submits this brief in 22 opposition to Defendant San Diego Tourism Marketing District Corporation's ("TMD") Motion to 23 Compel Further Testimony and Production of Additional Documents by Linda Perine or, in the 24 Alternative, a Privilege Log and Request for Sanctions. 25 26 27 28 Table of Contents 1 2 3 I. Introduction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 4 5 6 II. Argument & Analysis. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 A. The Requests for Sanctions Must be Denied Because They are Defective and 7 Unwarranted ......................................................... 2 8 1. 9 The Request for Sanctions against Briggs Law Corporation and Cory Briggs Fails as a Matter of Law .......................................... 3 10 2. The Request for Sanctions against Ms. Perine is Unwarranted............ 3 11 3. The Discovery Referee's Findings Are Not Binding.................... 4 12 13 B. This Motion Must Be Denied because It Fails on the Merits. . ................. 5 1. Declaration; the Motion Is Now Moot.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 14 15 Ms. Perine Provided Answers to the Questions Posed by TMD in a Sworn 2. The Documents Requested by TMD are Protected by a Constitutional Right to 16 . • Pnvacy ...................................................... . 6 17 a. Category 19. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 18 b. Categories 25, 74, and 75 ................................... 8 19 3. 20 21 . ............................................................ 8 4. 22 23 TMD's Request for a Privilege Log Is Unwarranted and Amounts to Harassment TMD Failed to Follow the Statutorily Required Procedures before Filing this Motion......................... ,.............................. 9 5. TMD Failed to Show Good Cause Exists to Compel Ms. Perine to Submit to 24 Further Examination, Produce Documents, and Provide a Privilege Log 25 ............................................................ 10 26 27 III. Conclusion.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 28 PLAINTIFF SAN DIEGANS FOR OPEN GOVERNMENT'S OPPOSITION TO MOTION TO COMPEL (PERINE) Page ii Table of Authorities 1 2 United States Constitution 3 United States Constitution, 1st Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 6, 8 4 5 California Constitution 6 California Constitution, Article I, Section 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 6, 8 7 8 9 California Cases Yeboah v. Progeny Ventures, Inc. (2005) 128 Cal.App.4th 443 ............................. 5 10 11 Calcar Space Facility, Inc. v. Superior Ct. (1997) 53 Cal.App.4th 216 ....................... 9 12 13 Coate v. Superior Ct. (1978) 81 Cal.App.3d 113 ........................................ 7 14 15 In re Ruben's Estate ( 1964) 224 Cal.App.2d 600 ........................................ 5 16 17 Sav-On Drugs, Inc. v. Superior Ct. (1975) 15 Cal. 3d 1.................................... 7 18 19 Stadish v. Superior Ct. (1999) 71 Cal.App.4th 1130 ...................................... 9 20 21 Townsendv. Superior Ct. (1998) 61 Cal.App.4th 1431.. .................................. 9 22 23 Treo@ Kettner Homeowners Ass 'n v. Superior Ct. (2008) 166 Cal.App.4th 1055 .............. 5 24 25 Webb v. Standard Oil (1957) 49 Cal.3d 509 ............................................ 7 26 27 28 PLAINTIFF SAN DIEGANS FOR OPEN GOVERNMENT'S OPPOSITION TO MOTION TO COMPEL {PERINE) Page iii California Statutes 2 Code of Civil Procedure Section 2016.040 ............................................. 9 3 4 Code of Civil Procedure Section 2023.030 ........................................... 2, 3 5 6 Code ofCivil Procedure Section 2025.450 .......................................... 9, 10 7 8 Code of Civil Procedure Section 2025.480 ......................................... 2, 3, 9 9 10 Code of Civil Procedure Section 638 .................................................. 5 11 12 Government Code Section 6254 ..................................................... 7 13 14 Government Code Section 6254.15 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 15 16 Other California Authorities 17 San Diego Municipal Code Section 31.0140 ............................................ 7 18 19 San Diego Municipal Code Section 35.0113 ............................................ 8 20 21 San Diego Municipal Code Section 35.0114 ............. .' .............................. 7 22 23 San Diego Municipal Code Section 61.2504.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7, 8 24 25 26 27 28 PLAINTIFF SAN DIEGANS FOR OPEN GOVERNMENT'S OPPOSITION TO MOTION TO COMPEL (PERINE) Pageiv I. INTRODUCTION This motion to compel further illustrates TMD' s strategy ofharassment, filing meritiess motions to compel, and unjustifiably seeking sanctions at every opportunity because it seeks answers to four irrelevant questions and access to private, irrelevant documents. Preliminarily, it is important to point out that tMD's tardy amendment of the l'l:otice for this motion was done in violation of SDOG's and its counsel's due-process rights. As this Court became aware during the March 12,2015, ex parte hearing, SDOG's counsel, Cory Briggs, will be leaving the country and will be unavailable from April 10 until May 5, 2015. 1 Despite knowing this, TMD amended its notice of motion and e-served it on SDOG on April9 at 12:27 p.m., the day before Mr. Briggs was scheduled to leave town for several weeks and while he was preparing for a Ninth Circuit argument. Briggs Decl., ,-r 8; Ex. "G." This late amendment is a blatant violation of SDOG's and its counsel's due-process rights because for weeks they have been relying on the notice, which is defective in its request for sanctions, in preparing this opposition. However, out of an abundance of caution and surely inadequately given the short time allowed- SDOG will address the motion as specified in the amended notice. Through its motion, TMD seeks to compel Linda Perine, a non-party, to submit to further examination and produce documents. Ms. Perine is not represented by SDOG's counsel. Despite that, TMD seeks sanctions against SDOG' s counsel. TMD' s request for sanctions should be denied because it is both improper and defective. This motion to compel is not directed at SDOG and SDOG does not represent Ms. Perine, so SDOG need not address the merits ofthe motion. Out of an abundance of caution, however, SDOG will address the merits just in case the Court opts to reach them as against SDOG. This motion to compel should be denied because Ms. Perine still has not even been served with it. Apart from that major defect, Ms. Perine has provided answers to the four questions TMD seeks to compel through its motion, even though the answers are outside the scope of discovery or are otherwise objectionable; attached to this opposition is a declaration from Ms. Perine answering the questions. Because TMD did not ask for leave to ask follow-up questions, there is no reason to order Ms. Perine 1 Mr. Briggs is appearing before the Ninth Circuit Court of Appeals in Pasadena, California, on April 10, 2015, and then leaves the office until May 5. See Briggs Decl., ,-r 8. PLAINTIFF SAN DIEGANS FOR OPEN GOVERNMENT'S OPPOSITION TO MOTION TO COMPEL (PERINE) Page 1 1 to appear at a further deposition. As such, TMD's request for a further deposition is moot. In light of 2 the recent of media harassment and disparagement of Mr. Briggs and his 3 Attorney and with apparent funding by some ofTMD's members, Ms. Perine will also invoke her Fifth 4 Amendment right against self-incrimination if she is forced to appear. 5 TMD's request to compel production of documents is i~proper wif~ with help from the City and should be denied b"ecause 6 the documents requested are protected by a right to privacy. Further, TMD's request for a privilege log 7 is improper because, as a non-party, Ms. Perine should not be burdened with production of discovery; 8 the proper procedure for a non-party is to sufficiently probe any potential privilege issues during the in-. 9 person deposition, which TMD did not do. Further, production of the privilege log would not yield any 10 new, discoverable information because the only legitimately discoverable document has already been 11 produced. ' 12 This motion should also be denied because TMD did not fulfill its obligation to meet and confer 13 in good faith prior to filing this motion to compel. TMD most certainly would have filed this motion 14 regardless of any effort to resolve this discovery dispute without involving the Court, evidenced by 15 TMD counsel's inadequate and disingenuous attempt to resolve this dispute informally. TMD sent its 16 meet-and-confer letter to SDOG's counsel on Wednesday, February 4, at 10:25 p.m. even though its 17 deadline to file a motion was just two days later. Had TMD really wanted to meet and confer, it would 18 have sent the letter earlier and not waited so long that SDOG's counsel had 19 meaningful response. 20 21 22 25 no time for a Finally, TMD failed to make the requisite showing that good cause exists for bringing this motion to compel. Accordingly, the motion to compel is defective. For these reasons, more fully elaborated below, TMD's motion should be denied in its entirety. 23 24 essentiall~ II. ARGUMENT & ANALYSIS A. The Requests for Sanctions Must be Denied Because They are Defective and Unwarranted 26 TMD requests sanctions against Briggs Law Corporation ("BLC"), Mr. Briggs, and Ms. Perine 27 under Code of Civil Procedure Sections 2023 .030(a) and 2025 .480U). Amend. Notice ofMot., pp. 3-4. 28 However, the request against BLC and Mr. Briggs must be denied because Mr. Briggs has not engaged in misuse of the discovery process and has consistently acted with j,ustification and within the PLAINTIFF SAN DIEGANS FOR OPEN GOVERNMENT'S OPPOSITION TO MOTION TO COMPEL (PERINE) Page 2 parameters of the law. The request for sanctions against Ms. Perine should also be denied because she 2 acted with "substantial justification" in choosing not to answer the questions at issue here or produce 3 certain documents based on legitimate objections made by her counsel. CODE OF CIV. PROC. §§ 4 2023.030(a) & 2025.4800). 5 1. The Request for Sanctions against Briggs Law Corporation and Cory Briggs Fails as a Matter of Law 6 7 TMD's request for sanctions against BLC and Mr. Briggs fails because Mr. Briggs has not 8 engaged in any conduct constituting a misuse of the discovery process. Code of Civil Procedure Section 9 2023.030(a) states: "The court may impose a monetary sanction ordering that one engaging in the 10 misuse ofthe discovery process, or any attorney advising that conduct, or both pay the reasonable 11 expenses, including attorney's fees, incurred by anyone as a result of that conduct." CODE OF CIV. 12 PROC. § 2023.030 (emphasis added). However, neither Mr. Briggs nor anyone at BLC has misused the 13 discovery process. In its motion, TMD has failed to explain how Mr. Briggs or BLC has engaged 14 abusive discovery tactics. Simply because TMD has not gotten its way- because it has been unable to 15 find anything corroborating its erroneous and fabricated theory that non-existent documents and data 16 exist and are in Mr. Briggs' possession- does not mean he has engaged in any misconduct. 17 TMD also seeks sanctions against BLC under Code of Civil Procedure Section 2025.480(j). By 18 its very terms, however, Section 2025.480(j) states that "[t]he court shall impose a monetary sanction 19 ... unless it finds that the one subject to the sanction acted with substantial justification or that other 20 circumstances make the imposition of the sanction unjust." CODE OF CIV. PROC. § 2025.480. Mr. 21 Briggs and his firm have done nothing to warrant sanctions; they have acted with substantial 22 justification and within the law throughout the entirety of this case. Because there is no evidence 23 demonstrating that Mr. Briggs or BLC acted without substantial justification, the request for sanctions 24 as to them must be denied. 25 2. The Request for Sanctions against Ms. Perine is Unwarranted 26 The Court should keep in mind that the only reason Ms. Perine was being deposed was on the 27 issue of standing. The sanctions against Ms. Perine should be denied because Ms. Perine acted with 28 substantial justification and in good faith when she took her counsel's advice and refused to produce certain documents and answer specific questions posed by TMD because those questions had nothing PLAINTIFF SAN DIEGANS FOR OPEN GOVERNMENT'S OPPOSITION TO MOTION TO COMPEL {PERINE) Page 3 to do with whether she possesses the Transient Occupancy Tax certificate that she needed to have in 2 order to have been entitled to vote on the TMD tax being challenged here. Ms. Perine's counsel, in 3 tum, acted with substantial justification in advising Ms. Perine not to answer specific questions and 4 produce certain documents based on legitimate objections founded on the constitutionally protected 5 right to privacy, right to associational privacy, and privilege because Ms. Perine produced her Transient 6 Occupancy Tax certificate during the deposition. That's all she had to do to establish standing in this 7 case. 8 More specifically, TMD's question regarding Ms. Perine's duties as Director of Community 9 Outreach was outside the scope of permissible discovery because it was not reasonably calculated to 10 lead to the discovery of admissible information. Additionally, the question about whether Ms. Perine 11 considered her directorship a significant achievement was also outside the scope of discovery and is 12 protected by a right to privacy. CAL. CONST., art. I, § 1. TMD' s question regarding whether Ms. Perine 13 was active in Mayor Filner's campaign in 2012 is outside the scope of discovery and protected by a right 14 to privacy- namely, the First Amendment rights of association and of political activities. U.S: CON ST., 15 1st Amend.; CAL. CONST., art. I,§ 1. Finally, TMD's question regarding Ms. Perine's involvement in 16 other organizations that were against the TMD violates Ms. Perine's constitutional rights to privacy and 17 associational privacy. !d. 18 Ms. Perine's reliance on counsel's advice regarding not producing the documents TMD is 19 moving to compel was justified. As thoroughly explained beiow in sections B.2.a. and B.i.b., those 20 documents are protected by a right to privacy. Furthermore, during her deposition she provided a copy 21 of her Transient O~cupancy Tax certificate, which is the only proof she needs in order to have been 22 entitled to vote on the TMD tax. Ms. Perine acted with substantial justification in refraining from 23 answering the aforementioned questions and producing the aforementioned documents based on 24 legitimate legal principles. ·As such, the request for sanctions should be denied in its entirety. 25 3. The Discovery Referee's Findings Are Not Binding 26 TMD repeatedly points out that Ms. Perine did not cede to the discovery referee's rulings during 27 the deposition, instead following her attorney's advice. TMD asserts: "Ms. Perine had no justification 28 (let alone substantial justification) for failing to answer questions and ignore the rulings of the PLAINTIFF SAN DIEGANS FOR OPEN GOVERNMENT'S OPPOSITION TO MOTION TO COMPEL (PERINE) Page 4 Discovery Referee." Mot., p. 7, lines 6-8. However, TMD makes much ado about nothing, as TMD's 2 pronouncement belies the fact that the referee's rulings are merely advisory, not binding. 3 In August 2014, SDOG and TMD filed a stipulation signed by all the parties- SDOG, TMD, 4 and the City of San Diego - agreeing that TMD could bring a discovery referee to depositions. See 5 Briggs Decl., 6 discovery referee would be for the limited purpose of presiding "at the depositions of SDOG's PMK 7 and Members 1-9 and to rule on any objections made at the depositions." Id. This voluntary request 8 by the parties falls under California Code of Civil Procedure Section 638, which provides that "[a] 9 referee may be appointed upon the agreement of the parties filed with the ... judge .... " CODE OF CIV. 10 ~ 2, Ex. "A." However, the stipulation clearly provided that the appointment of the PROC. § 63 8. This agreement did not give the referee any binding authority. 11 There are two types of voluntary references under Section 638: general and special. See Yeboah 12 v. Progeny Ventures, Inc. (2005) 128 Cal.App.4th 443,449-450. With a general reference, the referee 13 tries all issues in an action. Treo@ Kettner Homeowners Ass 'n v. Superior Ct. (2008) 166 Cal.App.4th 14 1055, 1061 (emphasis added). In contrast, when the reference is special, it is "simply to ascertain some 15 fact." Yeboah v. Progeny Ventures, Inc., supra, at. p. 449-450. As evidenced by the discovery referee's 16 very limited purpose - to preside over a few specifically identified depositions ,--- it is clear that the 17 parties here agreed to a special reference. "When the reference is special, the referee's decision does 18 not become the decision of the court until it is adopted by the judge." I d. Further, in the case of a 19 special reference, the findings of the referee are not binding; they are merely advisory. See In re 20 Ruben's Estate (1964) 224 Cal.App.2d 600, 607-608. Accordingly, the discovery referee's rulings 21 during Ms. Perine's deposition were merely advisory. 22 For these reasons, Ms. Perine's reliance on counsel's advice during the deposition, even when 23 it conflicted with the discovery referee's rulings, was proper, and TMD's argument that sanctions are 24 appropriate because Ms. Perine disregarded the discovery referee's rulings is without merit. TMD's 25 request for sanctions should be denied in its entirety. 26 B. 27 Although not a party to this motion, out of an abundance of caution, SDOG will address the 28 This Motion Must Be Denied because It Fails on the Merits (lack of) merits. PLAINTIFF SAN DIEGANS FOR OPEN GOVERNMENT'S OPPOSITION TO MOTION TO COMPEL (PERINE) Page 5 1 1. 2 Declaration; the Motion Is Now Moot 3 4 Ms. Perine Provided Answers to the Questions Posed by TMD in a Sworn In its motion, TMD se~ks an order specifically directing Ms. Perine to "answer the following questions:" 5 "What were your duties as Director of Community Outreach?" 6 "Do you consider the- your directorship a significant achievement for you?" 7 "Were you active in M!lyor Filner's campaign in 2012?" 8 "Were you involved in any other organizations that were against the TMD?" 9 Mot., p. 7, lines 18-24. Lodged with this opposition is Ms. Perine's sworn declaration answering the 10 four questions TMD seeks to have answered. 2 See Perine Decl. Because TMD did not ask for leave 11 to ask follow-up questions, a further deposition is unwarranted and the issue of ordering Ms. Perine to 12 submit to further examination is moot and TMD's motion should be denied in its entirety. However, 13 should Ms. Perine be ordered to appear at a further deposition, she will assert her Fifth Amendment 14 right against self-incrimination as to any and all questions posed during the examination. See Perine 15 Suppl. Decl. . 16 2. 17 The Documents Requested by TMD are Protected by a Constitutional Right to Privacy 18 The documents TMD wants Ms. Perine to produce are not discoverable because they are 19 protected by a constitutional right to privacy. U.S. CONST., 1st Amend.; CAL. CONST., art. I, § 1. Her 20 only role in this 21 Transient Occupancy Tax certificate upon which the eligibility to vote on the TMD tax was based. She 22 has done that. Nothing else matters. 23 cas~ is providing standing, which required nothing more than her production of her a. Category 19 24 TMD' s request pursuant to Category 19- documents "evidencing that Ms. Perine rented out her 25 properties at times which correspond to the alleged payments she made of TOT and TMD assessments 26 and documents showing that she rented out the properties on a short term basis"- seeks tax-related 27 information protected by a right to privacy. Amend. Notice of Mot., p. 2-3. Ms. Perine and her tenants 28 2 It is worth noting that, during her deposition, Ms. Perine actually did answer the question about her duties as Director of Community Outreach after initially choosing not to answer. See Briggs Decl., ~ 3, Ex. "B." Despite that, she provided another response in her declaration. See generally Perine Decl. PLAINTIFF SAN DIEGANS FOR OPEN GOVERNr.;tENT'S OPPOSITION TO MOTION TO COMPEL (PERINE) Page 6 are protected by privacy rights; Ms. Perine need not reveal her private tax information or the identity 2 of her tenants. Tax revenues, returns, and related information are confidential. See e.g., Webb v. 3 Standard Oil (1957) 49 Cal.3d 509 (forcing disclosure of information in tax return would defeat 4 purposes of confidentiality requirement in statute); Sav-On Drugs, Inc. v. Superior Ct. ( 197 5) 15 Cal.3d 5 1 (privilege applies to sales tax returns); Coate v. Superior Ct. (1978) 81 Cal.App.3d 113 (tax privilege 6 covers interrogatories seeking information with respect to income reported for tax purposes.) Taxpayer 7 information is also exempt from the California Public Records Act. See Gov'T CODE§§ 6254(1) & 8 6254.15. 9 The confidentiality of the information sought from Ms. Perine is also protected by local laws. 10 The information the City collects with respect to business taxes is generally confidential. San Diego 11 Municipal Code Section 31.0 140(fY explains that information collected for business-tax purposes shall 12 not be provided to any person for any other purpose other than official City business except as required 13 by state or federal law. Even the Transient Occupancy Tax ("TOT") ordinance, through which the TMD 14 tax is collected by the City, treats Ms. Perine's tax-related information as confidential: "All returns and 15 payments submitted by each Operator shall be treated as confidential by the City Treasurer and shall 16 not be released except upon order of a court of competent jurisdiction or to an officer or agent of the 17 United States, the State of California, the County of San Diego, or the City of San Diego for official use 18 only." See SAN DIEGO MUN. CODE§ 35.0114(h) (emphasis added). 4 Documents responsive to 19 Category 19 seek confidential proprietary and/or tax-related information protected by a right to privacy 20 and are therefore protected from discovery. 21 TMD asserts it needs documents relating to Ms. Perine's rental activity to challenge SDOG's 22 standing in this case. Mot., p.3, lines 10-19. TMD is incorrect because all that matters for standing is 23 simply that Ms. Perine was registered to pay the Transient Occupancy Tax, 5 not that she rented out 24 3 Available here: http://docs.sandiego.govlmunicode!MuniCodeChapter03/Ch03ArtO 1DivisionO I .pdf 4 Available here: http://docs.sandiego.gov/municode/MuniCodeChapter03/Ch03Art05DivisionO l.pdf 25 26 27 28 5 Ms. Perine meets the'definition of"business owner" under the Tourism Market District Procedural Ordinance and was thus entitled to vote along with the other hoteliers. San Diego Municipal Code Section 61.2504 defines "business owner" as "the owner, operator, or authorized representative of the, business who is noted on City records as the responsible party for remitting and reporting of Transient Occupancy Tax pursuant to San Diego Municipal Code section 35.0 114." See SAN DIEGO MUN. CODE § 61.2504, available at http:lldocs.sandiego.govlmunicode/MuniCodeChapter06/Ch06Art01 Division25.pdf Ms. Perine provided a copy ofher TOT certificate, establishing she "is noted on City PLAINTIFF SAN DIEGANS FOR OPEN GOVERNMENT'S OPPOSITION TO MOTION TO COMPEL (PERINE) Page 7 property. See SAN DIEGO MUN. CODE§ 35.0113. 6 Proof that Ms. Perine was registered to vote during 2 the relevant time period - that is, her TOT certificate - was previously produced to TMD at Ms. 3 Perine's deposition on November 24, 2014. See Briggs Decl., 4 TMD' s counsel had the opportunity to question Ms. Perine about the TOT certificate. See Briggs Decl., 5 ~ 6 she rented out the property and to whom is immaterial. Accordingly, documents responsive to Category 7 19 are confidential and irrelevant to challenging SDOG's standing; Ms. Perine's TOT certificate 8 establishes SDOG's standing in this case. 5; Ex. "D." ~he TOT 4; Ex. "C." During the deposition, certificate establishes Ms. Perine had standing to vote on the TMD tax; whether b. 9 ~ Categories 25, 74, and 75 10 TMD also seeks documents under Categories 25, 74, and 75, "including emails and other 11 correspondence that Ms. Perine received from SDOG or other individuals pertaining to l?embership, 12 meeting notices, email blasts and correspondence from SDOG or the Briggs Law Corporation office." 13 Amend. Notice of Mot., p. 3. 14 constitutional right to privacy of other members. U.S. Const., 1st Amend.; Cal. Const., art. I, § 1. 15 Additiot?-ally, this request seeks confidential attorney-client privileged materials and materials subject 16 to the attorney work product privilege. SDOG already turned over all responsive, non-privileged 17 documents in its possession as part of its response to otherTMD discovery. Ms. Perine has nothing else 18 that 'isn't itself subject to the attorney-client or privacy privilege, so TMD 's motion should be denied 19 in its entirety. 3. 20 However, compliance with this request would infringe on the TMD's Request for a Privilege Log Is Unwarranted and Amounts to Harassment 21 22 TMD's request for a privilege log is nothing more than harassment. SDOG turned over all 23 responsive documents in its possession in connection with other TMD discovery requests; production 24 of a privilege log would be unduly burdensome and would not yield any discoverable information and, 25 as against SDOG, would strangely have it producing a privilege log for Ms. Perine. 7 Further, as a non- 26 27 28 records as the responsible party for the remitting and reporting of Transient Occupancy Tax .... " !d. 6 Available here: http://docs.sandiego.gov/municode/MuniCodeChapter03/Ch03ArtO I DivisionO J.pdf 7 Neither SDOG nor its counsel can figure out how SDOG could prepare a privilege log for someone else. · · PLAINTIFF SAN DIEGANS FOR OPEN GOVERNMENT'S OPPOSITION TO MOTION TO COMPEL (PERINE) Page 8 1 party, Ms. Perine is not obligated to produce a privilege log for TMD; c?urts are hesitant to require 2 discovery from non-parties except for the statutorily authorized deposition subpoenas. A non-party 3 should only be burdened with discovery when the parties to the litigation do not possess the information 4 sought to be discovered or when the material obtained from the party is unreliable and could be 5 impeached by material in possession ofthe nonparty. Calcar Space Facility, Inc. v. Superior Ct. ( 1997) 6 53 Cal.App.4th 216, 225. It is not the case here that TMD is seeking information it does not have. 7 Rather, TMD has all responsive documents in this case and is simply harassing Ms. Perine (and 8 SDOG). 9 discovery. The first is to facilitate the search for truth and promote justice. The second is to protect the 10 legitimate privacy interest of the litigants and third parties." Stadish v. Superior Ct. (1999) 71 11 Cal.App.4th 1130, 1145. Ms. Perine is not a party to this litigation and her privacy must be protected. 12 As a non-party, Ms. Perine should not be forced to incur the expense of producing a privilege log. In 13 any event, were she to produce one, it would not yield any information not previously provided to TMD 14 through SDOG's discovery responses. Accordingly, the motion should be denied. Courts have found that "[t]he state has two substantial interests in regulating pretrial 4. 15 16 TMD Failed to Follow the Statutorily Required Procedures before Filing this Motion 17 Before filing this motion to compel, TMD failed to make a reasonable attempt to inforrrtally 18 resolve the issues with SDOG. The law requires that a motion to compel be accompanied by a 19 declaration stating facts showing "a reasonable and good faith attempt at an informal resolution of each 20 issue presented by the motion." CODE OF Civ: PROC. §§ 2016.040, 2025.480(b), 2025.450(b)(l). "A · 21 . reasonable and good-faith attempt at informal resolution entails something more than bickering with 22 deponent's counsel at a deposition. Rather, the law requires that counsel attempt to talk the matter over, 23 compare their views, consult, and deliberate." Townsend v. Superior Ct. (1998) 61 Cal.App.4th 1431, 24 1439. 25 TMD sent SDOG a m'eet-and-confer letter via email on Wednesday, February 4, at 10:25 p.m., 26 just two days before its deadline to file a motion to compel. See Briggs Decl., ~ 6; Ex. "E"; Pancake 27 Decl.,~ 28 deadline to file the motion to compel. See Briggs Decl., ~ 7; Ex. "F." Given that TMD gave SDOG less 10; Ex. "8." In the letter, TMD's counsel even acknowledged the short time frame before the than two days to address the matter, TMD's "attempt" falls far short of a reasonable and good faith PLAINTIFF SAN DIEGANS FOR OPEN GOVERNMENT'S OPPOSITION TO MOTION TO COMPEL (PERINE) Page 9 attempt. f!ad TMD really wanted to resolve the issue informally, it certainly_would have given SDOG 2 more than two days; after all, TMD had ample time- 60 days- to file the motion to compel. SDOG 3 was amenable to informal resolution and would have tried to work something out (as much as it cou~d 4 given that Ms. Perine is the subject of this motion) ifTMD had given SDOG adequate time to do so. 5 As TMD did not make the requisite reasonable and good-faith attempt to meet and confer with SDOG, 6 TMD's motion should be denied in its entirety. 7 5. TMD Failed to Show Good Cause Exists to Compel Ms. Perine to Submit 8 to Further Examination, Produce Documents, and Provide a Privilege Log 9 A motion to compel production of documents must be supported by a showing of"good cause." 10 CODE OF CIV. PROC. § 2025.450(b)(1). TMD failed to meet its burden of showing good exists to 11 compel Ms. Perine to provide answers, documents, and a-privilege log because TMD's alleged reason 12 for seeking thi:'\ information goes to challenge standing, which has already been established through Ms. 13 Perine's own testimony, testimony of other SDOG members, and documents previously provided. 14 Further, it is difficult to fathom how the questions TMD seeks to compel Ms. Perine to answer will 15 provide any further insight into SDOG' s standing; they are unrelated to the litigation and outside the 16 scope of discovery. This motion is just an example of TMD's continued harassment of SDOG, its 17 counsel, and now one of its key members. SDOG and its counsel have turned over all responsive 18 documents in their possession. The only problem in this case is that TMD does not like how the 19 evidence looks for their attempt to save the TMD tax from invalidation. 20 21 Since TMb failed to show good cause to compel production of the computer, the motion should be denied in its entirety. Ill. CONCLUSION 22 23 For the foregoing reasons, this motion should be denied in its entirety. 24 Date: April9, 2015. Respectfully submitted, 25 BRIGGS LAW CORPORATION 26 By: 27 coryrBnggs 28 Attorneys for . Government Plaintiff San Diegans PLAINTIFF SAN DIEGANS FOR OPEN GOVERNMENT'S OPPOSITION TO MOTION TO COMPEL (PERINE) ' ,. for Open Page 10 DECLARATION OF CORY J. BRIGGS I, Cory J. Briggs, am over the age of eighteen and if called as a witness in this proceeding will testify as follows: 1. I am an attorney licensed to practice law in the State of California. I am one of the attorneys of record in this lawsuit for San Diegans for Open Government ("SDOG"). 2. Attached hereto as Exhibit "A" is a true and correct copy of the stipulation signed by all of the parties to the lawsuit- TMD, SDOG, and City of San Diego- agreeing to the appointment of a discovery referee to preside at the depositions ofSDOG's PMK and Members 1-9. I never agreed to give the referee any general authority in the depositions under Code of Civil Procedure Section 644(a). The referee was intended to be advisory only. 3. Attached hereto as Exhibit "B" is a true and correct copy of pages 21-25 of Linda Perine's deposition on November 24, 2014, where she discussed her duties as Director of Community Outreach. 4. Attached hereto as Exhibit "C" is a true and correct copy of Linda Perine's Transient Occupancy Tax Certificate, previously produced at her deposition on November 24, 2014, and reproduced on pages 269-272 of the deposition transcript. · 5. Attached hereto as Exhibit "D" is a true and correct copy of pages 92-92 of Linda Perine's deposition on November 24,2014, where TMD's counsel questioned her about the Transient '. Occupancy Tax Certificate. 6. Attached hereto as Exhibit "E" is a true and correct copy of the email I received on Wednesday, February 4, 2015, at 10:25 p.m., from TMD's counsel, Jennifer Pan~ake, with the attached meet-and-confer letter included. 7. Attached hereto as Exhibit "F" is a true and correct copy of the meet and confer letter I received on Wednesday, February 4, 2015, at 10:25 p.m. 8. Attached hereto as Exhibit "G" is a true and correct copy of the email I received on Thursday, April9, 2015, at 12:27 p.m., from TMD counsel's staff, with the attached amended notice. On April9, I was fully consumed with preparing for a Ninth Circuit argument in Pasadena, California, on April 10. 9. As I am finishing this opposition brief and preparing to leave town, I still have not received a proof of service showing that this motion has been served on Linda Perine. In fact, I have seen several e-mail communications from Jennifer Pancake acknowledging that Ms. Perine has not been served. I declare under penalty of perjury under the laws ,of the State of California that the foregoing is true and correct. Date: April9, 2015. Cory J. Briggs DECLARATION OF CORY J. BRIGGS PAGE2 DECLARATION OF CORY J. BRIGGS Exhibit I MICHAEL G. COLANTUONO, State Bar No. 143551 2 JENNIFER L. PANCAKE, State Bar No. 138621 MColantuono@chwlaw.us JPancake@chwlaw.us 3 · RYAN THOMAS DUNN, State BarNo. 268106 RDunn@chwlaw.us COLANTUONO, HIGHSMITH & WHATLEY, PC 300 S. Grand Avenue, Suite 2700 5 Los Angeles, California 90071-3137 Telephone: (213) 542-5700 6 Facsimile: (213)542-5710 4 Attorneys for Defendants SAN DIEGO TOURISM MARKETING 8 DISTRICT CORPORATION 7 u Q. 9 SUPERIOR COURT OF THE STATE OF CALIFORNIA 10 FOR THE COUNTY OF SAN DIEGO, CENTRAL COURTHOUSE II .;..o ~~~ -.,...., c ~ 12 .c;UJ"' ~§..:. ., .... -;;;;) - z <( Ewu .,> .c:o ~~'"' _"',., 0 .CWO") ;!:~..:. olS 0 "'"' ·o .Cwo_::> -Z<~; Ewu ..,> J:. c:t en· -~ (!) g(!)~ ~oO co-' o«> 0 u 2 STIPULATION 132134.2 Compelling Compliance With Deposition Subpoenas For Attendance OfNon-Party Witnesses, and 2 Request For "Sanctions . For Disobedience Deposition Subpoena. 3 4 5 u 0.. 4. The depositions ofSDOG Member Nos. 1-9, as noticed by SDOG, did not go forward and the notices for SDOG Member Nos. 1-9 served by SDOG on June 13, 2014 are withdrawn. 5. TMD Corp. may serve deposition subpoenas and requests for d~cuments on SDOG 6 Member Nos. 4, 6 and 9 via the Briggs La'N Corporation so that these witnesses will be obligated to 7 attend depositions noticed by TMD Corp. and bring requested documents upon which TMD Corp. 8 will question the witnesses. SDOG Members 4, 6, and 9 do not waive any rights to object to the 9 deposition subpoenas served upon them. The Briggs Law Corporation repre~ents that it is 10 authorized to accept service ofprocess on behalfofMembers 4, 6, and 9 as to service of deposition 11 subpoenas and requests for production of documents and the Briggs Law Corporation agrees to 12 accept service of the deposition subpoenas as provided herein. TMD Corp.'s shall have priority in 13 taking depositions ofSDOG's own members before SDOG does; and TMD Corp. shall be allowed to 14 ask questions of the witnesses first at each ofthe SDOG Members' depositions. >.o .!~" _"'.., 0 - .c"'"' ~5..:. ~ "'" ·o0 .CUJo- -::::> -Z<( Ewu ., > .c..o .!~~ -NM 0 _cWM !'=§.:. clS 0 "'"' ·o .c"'o-~ ·z .c 14 Clow 15 DATED: August_, 2014 BRIGGS LAW CORPORATION .::;:a ~~,.... -c..."' 0 - .C'"""' ~3..:. "'" 11 12 olS a ·a .c w o-~ -Z<( 13 .,:;;. 14 Ewu .c ct: V'J. Olow ;:~~ -"" (,!) 15 0v)v'.1 :I 0 16 g(,!)~ cg~ O"' 0 u I7 18 19 20 21 22 23 24 25 26 27 28 128454.1 Cory J. Briggs, Esq. Mekae1a M. Gladden, Esq. Briggs Law Corporation 99 East C Street, Suite 111 Upland, CA 91786 Phone: (619) 949-7115 Cory@briggslawcorp.com Attorneys for Plaintiff San Diegans for Open Government Jan Goldsmith, Esq. City Attorney Carmen Brock, Esq., Deputy City Attorney City Attorney's Office City of San Diego 1200 Third A venue, Suite ll 00 San Diego, California 92101 Phone: (619) 236-6220 Fax: (619) 236-7215 CBrock@sandiego. gov Attorneysfor Defendant City of San Diego DECLARATION OF CORY J. BRIGGS Exhibit 1 you speculate on an answer. 2 know the answer, but I am entitled to your best 3 estimate. 4 estimate and a guess? It is okay to say you don't Do you understand the difference between an 5 A Yes. 6 Q Okay. 09:53 So I just want to make sure that we're 7 clear on the concept. 8 length of this table, you'd be able to look at it, 9 visualize it, have some factual basis in your mind for If I asked you to estimate the 10 making an estimate even though you may not give the same 11 answer that would be given if you had a tape measure to 12 measure it exactly. 13 dining room table in my dining room in my home, you have 15 no basis upon which to formulate an answer to that 16 because you've never been to my house and you don't even 17 know if I have a dining room table. 18 20 21 22 23 24 25 09:53 But if I asked you to estimate the size of the 14 19 09:53 09:54 So do you understand the difference between those two concepts? A 09:54 I do understand the differences between making a wild guess and making a reasonable estimate. Q Okay. What were your duties as Director of Community Outreach? MR. BRIGGS: I'm going to object again. I'm not sure what her personnel responsibilities and her job Peterson Reporting Video & Litigation 21 09:54 1 in the mayor's office have to do with whether SanDOG has 2 standing or her membership in the organization. 3 think she's required to go into personnel matters. 4 I'm going to instruct her not to answer. 5 MS. PANCAKE: I don't So constitutes a personnel matter. 7 that she was undertaking; and I think I'm entitled to 8 know whether or not, in the capacity of her duties ·as 9 the Director of Community Outreach, did she ever deal 11 12 13 It's a paid position with any SDOG issues. 09:55 MR. BRIGGS: Well, I'll let you ask her that question; but that's not what you asked her. MS. PANCAKE: I understand that, but I'm trying 14 to ask some foundational questions so that her comments 15 will have some relevance and be able to be evaluated. 16 17 MR. BRIGGS: 09:55 And I think you're putting the cart before the horse. 18 MS. PANCAKE: 19 HON. PATE: Your Honor? The objection is overruled. 20 duties as a public employee should be public 21 information, so there's no privacy issue. 22 09:54 Well, I don't think this really 6 10 09:54 MR. BRIGGS: Her 09:55. Well, I would note that you've 23 been aware of Ms. Perine's membership in SanDOG for 24 quite some time. 25 to look into -- I have never seen any written discovery And you've actually not done anything 09:55 Peterson Reporting Video & Litigation 22 1 on the subject. 2 09:55 And -- MS. PANCAKE: And I am wondering why you're 3 making comments like this. I'd, reall-y like to keep the 4 editorial comments, the pontificating, and the witness 5 coaching to a minimum. 6 very tight time frame here. 7 remarks or statements you have to make I think are 8 inappropriate. 9 objectionable, you should state your objection. And so any gratuitous I think, if I ask a question that's I will 10 state my reasons for asking the question or my position 1l on it. 12 want to have this record -- I don't want to have the 13 time used up by those kinds of statements by you. The judge can rule, and we can move on. ·14 MR. BRIGGS: 15 MS. PANCAKE: 16 MR. BRIGGS: 17 MS. PANCAKE: 19 MR. BRIGGS: 21 I don't All right. Then I'll cut to the chase. I'm Over the judge's ruling? Yes. 09:56 BY MS. PANCAKE: Q Ms. Perine, in the context of your work as Director of Community Outreach, did you ever deal with 23 any issues relating to SDOG? 25 09:56 So please keep it to a minimum. 22 24 09:56 instructing the witness not to answer the question. 18 20 09:56 As you know, Cory, we're on a A clearly. You will have to ask that question more 09:57 I don't have any idea what you're asking me. Peterson Reporting Video & Litigation 23 1 Q Okay. In your work as Director of Community 2 Outreach, did any of that work relate to SDOG as an 3 organization? 4 A I don't understand your question. 5 Q Okay. 09:57 09:57 Well, since Mr. Briggs is refusing to 6 let you explain what you did do as Director of Community 7 Outreach, it's a little difficult; but did your work in 8 that position -- did you ever come in contact with 9 members of SDOG in your position as· Director of 10. 11 09:58 Community Outreach? A Part of my job was community outreach. So, in 12 the process of outreaching to the community, I came in 13 contact with a number of people ,including people who are 14 members of SanDOG. 15 16 17 18 Q community? A What does that mean? That was -- I'm sorry. That was an ongoing discussion. ; At its simplest, I would go to meetings. 19 Q Meetings of? 20 A Various civic organizations, community 21 organizations, neighborhood organizations, labor 22 organizations, religious organizations, political 23 organizations. 24 25 09:58 What do you mean by outreaching to the Q 09:58 Did you have a mission statement that your work as the City Director of Community Outreach that you were Peterson Reporting Viaeo & Litigation 24 09:59 1 supposed to be doing any particular activities or 2 advancing any particular City position -- 3 A No. 4 Q -- in your capacity as director? 5 A No. 6 Q What were you supposed to be doing at the 7 meetings? 8 A 9 10 09:59 09:59 I was never given a clear instruction as to my duties. Q And so, absent a clear instruction of your 09:59 11 duties, what was in your mind the purpose of your 12 involvement in going to community organization meetings? 13 A To learn. 14 Q To learn what? 15 A About the community. 16 Q And do what? 17 A Use that information to be of assistance to the 18 19 20 mayor. Q Do you consider the -- your directorship a significant achievement for you? 21 MR. BRIGGS: Objection. 22 privacy. 23 business. 24 am instructing her not to answer. 25 09:59 10:00 Irrelevant, right of What she thinks about her job is nobody's She doesn't have to answer the question. MS. PANCAKE: I 10:00 Your Honor? Peterson Reporting Video & Litigation 25 CORY J. BRIGGS Exhibit • Transient Occupancy_ Registration Certificate THECtTV.OF SAN Otf;Go. CALIF~RNI.A This Transient Occupancy AE!gistration Certificate signifies that the person named on the face hereof is reqiJiredtocoUect a Ttanslen t · OccuJ)ancy Tax .from transients and to remiHhe same to the Clty Treasurer arld has fulfilled the requirements of the Transient Occupancy Tax Ordinanee by r~gistering .with. the. City. Treasurer for the purpose of collecting from. transients. the Transient Occupancy TBJ(;atid remitting s.aid tax the City Treasurer. ihisctlitificatedoos not constitute permit to operate hotel, recreationaf v8hicle park or campgr.OIJnd business:-·· · · · · · · · ...... ··, . . . to a .NAMe ANi>'aiJstNells.~~~ LINDA PERINE' ' SllSANGABRIBLPL·· ·.·· SAN: riiEGQ CA92l 09 C~IFICATE NUMBER PLEASE REFER TO -YOUR 515'566 ' .·· CERTIFICATE NUMBER IN ALl CORRESPONDENCE. ••••••• . . . ••••• ••••• • a . ISSUED' BY THE . TREAS\,f_REA OF ;THE CITY 0~ SAN DIEG_O ON: https://apps.sandiego.govffOTPayTiered/ConfirrnCertAction.do Make Payment • Office of the City Treasurer Transient Occupancy Tax/Tourism Marketing District Online Payment Certificate Number: Business Name: 515566 Cart Contents -------·-"-""""'·""""""""""'""''""""'""": Cart contains 0 item(s): 1i Total amount =$0.00 i PERINE, LINDA Business Address: 811 SAN GABRIEL 92109 Items marked with sn asterisk t! sra requirad Month Ended •: ~.;1J:.::":.:.'Y_ _ _.,.,.jiJ Year • : ~ Certificate Number of Person/Entity Submitting Payment • : Taxable/Assessable Rent •: TOT TOT due at 10.5% or TOT Collected, Whichever Is Greater •: Less TOT Refunded to Non-Transients: Less TOT Credit: TOT Subtotal: TOT Late Penalty (ovorrlde? .::, ) : TOT Due: TMD - Category B TMD Assessment - Category B (0.55% of Assessable Rent): • Less TMD- Category B Refunded to Non-Transients: Less TMD- Category B Credit: TMD - Category B Subtotal: TMD Late Penalty- Category B (override? •J) : TMD - Category B Due: ~==::::::~ .__ ___.I. Total Amount Due and Payable: To ensure accurate totals, click calculate 1~(:;_;~~~~-- I (J • I declare under penalty of perjury that I am suthon'zed to make thia statement and that to the best of my knowledge and belief, It is a true, correct, and complste atatsmsnt Add to Cart Note: Payments processed after 4:30P.M. (PST) wiN post the following business day. Late payment penalties may apply In accordance with S~m Diego Municipal Code Chapter Ill Article 5 • 1 of 1 8/11114, 10:39 AM 2. https://apps.sandiego.govffOTPayTiered/ConfirmCertAction.do Make Payment • Office of the City Treasurer Transient Occupancy Tax/Tourism Marketing District Online Payment Certificate Number: Business Name: ,........................................................! !................................................. Cart Contents "1 !. Cart contains 0 item(s) j 515566 PERINE, LINDA Business Address: I 811 SAN GABRIEL 92109 i Total amount =$0.00 , · Items marked with an asterisk'(") are required Month Ended • : M;.;.•;;.:Y_ _ _ .._.) L.l Year • : ~ Certificate Number of Person/Entity Submitting Payment • : I Taxable/Assessable Rent • : .___ ____.I ~ TOT TOT due at 10.5% or TOT Collected, Whichever is Greater*: Less TOT Refunded to Non-Transients: Less TOT Credit: TOT Subtotal: TOT Late Penalty (override? CJ ) : TOT Due: TMD • Category B TMD Assessment- Category 8 • (0.56% ot Assessable Rent): Less TMD- Category 8 Refunded to Non-Transients: Less TMD- Category 8 Credit: TMD- Category 8 Subtotal: TMD Late Penalty- Category 8 (override? 1 ~)) : TMD - Category B Due: Total Amount Due and Payable: To ensure accurate totals, click calculate 1. "(,;]~~~~[~~ i Ct * I declaf8 under penalty of perjury that lam authorized to make this statement and that to Jhs best of my knowledge and be/let It/& a trus, correct, and complete statement. Add to Cart Note: Payments processed after 4:30P.M. (PST) wiU post the following business day. Lele payment penalties may apply in accordance with San O!eao Municipal Code Chapter !II Article 5 • I of I 6/27114, 1:56PM :3 https://apps.sandiego.govffOTPayTiered/FindCertAction.do Confirm Certificate •• Office of the City Treasurer t Transient Occupancy Tax/Tourism Marketing District Online Payment Please confirm that this is the correct certificate: ~ I Certificate Number: 515566 Business Name: PERINE, LINDA Business Address: 811 SAN GABRIEL 92109 • • I of I 6/27/14, 1:58PM .tt DECLARATION OF CORY J. BRIGGS Exhibit 1 A 11:44 You asked me if I lived there now. I I I do not live there now. 2 I 3 4 Q Okay. When did you live at 811 San Gabtiel Place? I 5 A 11:44 I don't remember. I I 6 7 8 Q Wo~ld you have records showing when you lived at 811 San Gabriel Place? A j Yes. I I 9 Q 10 2012? Did you live at 811 San Gabriel Place during 11:44 I t 11 A No. I (E~hibi t 12 7 was marked.) t 13 BY MS. PANCAKE: I 14 15 Q · MsJ Perine I'm showing you a document th~t I've 11:45 marked as Exhibit 7. I 16 Actually, quick give me that one back. 17 Sh~wing you a document that I've marked as I 18 Exhibit 7 . MRJ BRIGGS: 19 I 20 there? 21 BY MS. PANCAKE: Oh, no. Do you still have Exhibit 3 over 11:45 It's right here. 22 Q Dolyou recognize Exhibit 7, Ms. Perine? 23 A I I Yes, rna am. 24 Q And have you -- this has been I 25 l. . 811 S an Ga b rlel Place has been -- has ha d a translent 11:46 I Peterson Reporting Video & Litigation .I I I 92 1 occupancy registration certificate continuously since 2 July lOth of 2007? 3 A Yes. 4 Q And -- and did you pay transient occupancy tax 5 on 811 San Gabriel continuously from two thousand -- 6 excuse me -- 2007 to the present? 7 A Yes. 8 Q Do you pay transient occupancy tax quarterly? 9 A No. 10 Q Why not? 11 A Because that's is not how it's required to be 12 paid. How do you describe how it's required to be Q 14 paid? 15 A It's to be paid the month after the occupancy. 16 Q Do you pay the transient occupancy tax the 18 19 20 21 22 11:46 11:47 13 17 11:46 11:47 month after the occupancy? A Yes. I was late paying in 2012, and I paid my penalty. Q Why did you fail to pay transient occupancy tax 11:47 until 2012? MR. BRIGGS: I'm just going to object. thi~k I 23 don't -- despite her prior answer, I don't the 24 reasons for any delay in payment are either relevant or 25 discoverable. 11:48 They also would be protected by her Peterson Reporting Video & Litigation 93 DECLARATION OF CORY J. BRIGGS Exhibit Adriana Quintero Jennifer L. Pancake Wednesday, February 04, 2015 10:25 PM Cory Briggs Adriana Quintero; Mekaela Gladden; 'Brock, Carmen'; Ryan T. Dunn; Michael G. Colantuono FW: Meet and confer letter on issues re deposition of Linda Perine Meet and confer letter re Perine depo.pdf From: Sent: To: Cc: Subject: Attachments: Cory: Attached please find my meet and confer letter regarding the deposition of Linda Perine. I will call you tomorrow to discuss. Jenni Jennifer Pancake Colantuono, Highsmith & Whatley, PC 300 South Grand Avenue, Suite 2700 I Los Angeles, CA 90071 Direct 213-542-5708 ! Main 213-542-5700 Fax 213-542-5710 jpancake@chwlaw.us ! www.chwlaw.us This email may contain material that is confidential, privileged and/or attorney work product for the sole use of the intended distribution by others or forwarding without express permission is strictly prohibited. If you are not recipient. Any review, reliance the intended recipient, please contact the sender and delete all copies. or 1 DECLARATION OF CORY J. BRIGGS Exhibit ~--------------~ --~ ~ -, " -------------------··-- 300 S, Grand Avenue, Suite 2700 Los Angeles, CA 90071-3137 Voice (213) 542-5700 Fax (213) 542-5710 ··- COLANTUONO j! ! '! Jennifd~ ~ Pancake HIGHSMITH WHATLEY, PC (213) !542-5708 JPanca~~@thwlaw.us ., February 3, 2015 · -; •i :! ' ~ '. 'I ': . i VIA EMAIL AND U.S. MAIL l Cory Briggs Briggs Law Corporation 99 East "C" Street, Suite 111 Upland, CA 91786 Re: i :I I I ~ : ·'. i 'I Meet and confer re: further documents and answers Deposition of Linda Perine SDOG v. TMD Corp.; Case No. 37-2012-00088065~CU-MC-CTL: I , Dear Cory: I am writing in an effort to meet and confer on the issue of obtainfrjtg further responses from Linda Perine to various questions to which you objected; ! to which Judge Pate overruled your objections, and to which you instructed Linda P~ not to answer notwithstanding Judge Pate's ruling. I a:m also writing to meet and iconfer on the issues of obtaining certain documents which Linda Perine testified that ~e had in her possession but did not bring to the deposition. ': 'i 'i i! My time for filing a motion to compel expires on Februaiy 6, 2015 whicl(l is a very short time frame, and I will need to put together a motion to compel in the next few days if we do not reach an agreement to solve these issues informally. In regard, I will plan to file the motion by Friday, February 6, 2015 unless you agree in,f;riting to extend the tim~ for me to file a motion to compel. While it ·may be that due to our history of resolving discovery disputes, that we are unable to resolve th~se issues informally, please advise me as soon as possible if you are interested in tryirlg to work ' this out informally. Please let me know three things: fu# 1) whether you want to try and work the issues out informally, 147594.1 Meet and Confer Letter re: Deposition of Linda Perine February 3, 2015 Page2 2) whether you agree to extend my motion to compel deadline to 7 da:ts'beyond the date when you believe that the witness can provide the requested information, and 3) and the specific date when you believe that the witness can prpvide the information. '! 'I ;i Compelling Answers to Deposition Questions Where the Discovery Refgtee Judge Pate Overruled Your Objection(s). As you may recall, you objected to a number of questions and ins~cted Ms. Perine not to answer the questions despite Judge Pate's ruling to over:fule your objections. ·! I am seeking answers from Li,nda Perine as to the following questio~ without objection. For your convenience, at the end of this letter, I have included thei question, objection and ruling for each question we are seeking an· answer to on a sep;:irate page so you nature of the dispute. Your objections to each of these questions were' pverruled by our discovery referee, Judge Pate. I Q: What were your duties as Director of Community Outreach? (Perine, Linda- Vol. 1, 21:22-23:19, Nov. 24, 2014) Q.: Do you consider the -your directorship a significant achievement for you7 (Perfue, Linda- Vol. 1, 25:19-26:3, Nov. 24, 2014) ,, ; ; 'I ; I Q Were you active in Mayor Filner's campaign in 2012? i 'I (Perine, Linda- Vol. 1, 120:18-122:3, Nov. 24, 2014) i i ;i Q Were you involved in any other organizations that were against the TMD?i (Perine, Linda- Vol. 1, 124:21-125:24, Nov. 24, 2014) ,: As you know, it is our position that SDOG is trying to fabricate stand~ after the fact and that Ms. Perine's July 2012 membership application was created after ~e fact. Our belief is based upon the history of discovery obstruction that SDOG has eijgaged in, SDOG' s and your office's lack of cooperation in obtaining the metadata for the membership application, as well as the conflicting testimony from the SDOG fli'ernber 147594.1 Meet and Confer Letter re: _Deposition of Linda Perine February 3, 2015 Page3 .\ I i \ witnesses as to the process and timing of memberships in the organization. Ms. · Perine's deposition testimony about her alleged membership is evasive and is, kt times :i contradicted by the testimony of a number of SDOG's other witnesses. ~ ! .' Your objections to the above listed questions were and remain not well taken and were in fact overruled by Judge Pate the court-ordered discovery referee. Ms. ~erine should answer the above-listed questions and comply with the rulings of the ~iscovery referee. For your convenience, the text of the question, objections and ruling is !set out after the conclusion of this letter. .: :! i Compelling the Production of Further Documents and/or a detailed priJnege .log each document to which the attorney client privilege is requested and the of the •\ allegedly privileged communication. dlte We are also seeking the production ·of documents that Ms. Perine admitted to having in her possession, but which she did not produce at the deposition. Ms. Perine testified that she had never seen the operative deposition ~ubpoena (including its document requests) which was served on her on September 3, 2014, or the ' court order ordering her to appear for her deposition and ordering her to pay sanctions. She did nothing to prepare for the deposition or make a reasonable and dilig~t search for· responsive documents. She produced only 4 pages of documents which were assembled by your office and brought by you to the deposition. . . The documents which we are seeking are: • I Documents responsive to Category 19, evidencing that Ms. Perin~ rented out her properties at times which correspond to the alleged payments sl}e:made of TOT and TMD assessments and documents showing that she rented .<;mt the properties on a short term basis. Ms. Perine testified that she keeps rec~rds of times when she rents out her properties and keeps records of the, periods of time that renters rent her properties. She testified that she keeps general notes about her property rentals, reservation notes, miscellaneous standard record keeping of the properties she rents, and records of her renters. 147594.1 i .I Meet and Confer Letter re: Deposition of Linda Perine February 3, 2015 Page4 I i ' Documents responsive to Category 24,74 and 75 including emails and other correspo1;1dence that Ms. Perine received from SDOG per:taining to membership, meeting notices, email blasts and correspondence from SOOG or your office. · ·i I I Documents responsive to Category 10, including correspondence between · Ms. Perine and the City regarding TOT paid since 2008. Documents responsive to Category 12, including correspondence between Ms. Perine and SDOG regarding TOT paid since 2008. Documents responsive to Cagtegories 59, 63,67 and 71 showingi~ird 1 party correspondence .with respect to rentals. · . :! While I would like to reach an agreement with you that you will comply with the rulings of the discovery referee and allow the witness to answer the depositio~ questions to which the referee overruled your objections, and while I would liltected from disclosure in a case where all that matters is whether she qualified to re~ive a ballot. And I'm instructing her not to answer. I 147594.1 Meet and Confer Letter re: Deposition of Linda Perine February 3, 2015 Page 10 MS. PANCAKE: Well, I would just like to say for the record that, in a case like! this where the credibility of the witness is the credibility of the attorney statementsithat have been made throughout this litigation, I believe that I am entitled to test th~ validity of thedaims that have been made. And so I disagree with you. Your Hortor? MR. BRIGGS: Jenni, you keep bringing up this credibility issue. And you're entitled to litigate this case however you like. But I got to tell you that I've never had a ct~dibility issue come up where somebody didn't have some bit of evidence to rub on theinose of the lawyer or the witness they thought was lying. You don't actually get to test my credibility or the witness's credibility by going on a fishing expedition with me: or the witness. If you've got something that you want to show the witness to impeach her, that's fine. But you don't just get to ask questions that go all over the map :to see if you can trip her up. Until you've got something to contradict what she's telling you, there's no credibility to assess. She's already taken an oath to tell the truth. An:d, unless you 'want to show her something or can show her something that in any way suggests that she's telling you a lie, there's no credibility to test here. MS. PANCAKE: Well, since the documents that I requested for this deposition, to establish the foundational facts for some of these questions are in the witness's :control, and since the witness apparently was never advised as to the document categopes but in_stead was told by you that she probably didn't have to bring anything to deposition because you would handle it all for her and, in fact, you brought three pages of documents stating that that was all that was responsive,. which we've heard from the witness is contrary to the truth because she's testified that she keeps business r~cords as to the operation and the rentals of her rental properties and she's testified that$he has the tax returns, copies of the tax returns where she purportedly changed her aqdress yet refuses to produce these. I am -- I think I'm entitled to get this information in any way that I can. The judge has stated before that you're supposed to get it in the: most expeditious way possible. Since the documents weren't brought that could eith~r establish that there's a credibility problem or absolve you guys of any credibility pr_oblem, I think I'm entitled to go to the next level and ask questions about it. ·So I don't want to take the time to argue about this. I'd like to get a ruling from the judge:. MR. BRIGGS: Well, we're going to argue it because you've opened it. Let's be clear about something. HON. PATE: No, we're not going to argue it in this deposition. You guys hav~ made your record. It's just total redundancy back and forth like a couple of kids squ~bbling. So, let me give you the ruling. The first place is Ms. Pancake is correct tha~ just i. I 1 this! 147594.1 Meet and Confer Letter re: Deposition of Linda Perine February 3, 2015 Page 11 because something happens to appear in a tax return doesn't make it privilegeq. You drive from A to Bon business. You deduct it. Doesn't mean you cannot testifY;, the fact that you were driving when you got in the accident. •! MR. BRIGGS: We agree on that. HON. PATE: So it's not-I didn't ask anybody to comment on whether tl\ey agreed or not. So the fact that something appears on a tax return is not pri}rileged. The tax return, itself, is privileged, not the contents of it in the sense of backup ~ materials. However, whether or not she was renting out a unit is fair gam~' in terms of asking her if she was renting it or not. How much she rented it for I 4pn't think is germane to anything. Now, if you need-- if your position is that s~e falsified her claim of renting just so she could become listed by the TMD for vo~g purposes, that's an affirmative defense, I presume, to her standing claim. If yo~ are going to pursue that avenue, then the way you do that, I presume, is subpoena !amy documents that evidence that she was renting out tlie property besides asking J!ter to testify. I don't have any subpoena power, so I'm not going to make a ruling on 'I . that. But I presume the judge would grant your request to subpoena her r~ntal records which she says she keeps in paper form meticulously, to see if she actUally rented it out and who she rented it out to. So you can verify it that way. I prestune that's what the ruling would be. I'm not making that ruling, but that's the way iyou should proceed. But, the amount she rented for, whether $10,000 or $1,000, I don't , see is germane to any of the issues here. MS. PANCAKE: Well, it is my position that there-- I think there's a potential f6r falsification of the tax records to -- for the sole purpose of establishing standing! based on a long history of -· HON. PATE: But the amount that she paid, the amount of taxes, doesn't create!the standing. Am I correct on that? Is there some minimum threshold? You have: to pay at least $300 in taxes? ' MS. PANCAKE: You're correct about that. i i MR. BRIGGS: You've got to have that piece of paper. HON. PATE: Wait, wait. So, if you pay one dollar-- and I presume she p~d more than a dollar to the City - now you've got that issue. She's laid the prima facie case for that issue. You want to attack it on the basis that she really didn't rent these places out; it was just- this was all just smoke and mirrors so she could get on these rolls ckd thus destroy the vote. Now, if that's the case, you need to obtain the records th:c:l.t she maintains of the rentals if she's got records showing the rentals and who she reftted it I 147594.1 Meet and Confer Letter re: Deposition of Linda Perine · February 3, 2015 Page 12 '! •I ' 'i' ! ' to. I guess you can talk to the people she rented it to, to make sure she rented i,t or some other way. But, the amount of the rental is not germane to it. If it was, I "'i'ould let you get into it; but it's not. MS. PANCAKE: And, Your Honor, thank you. For the record, we did request these documents in the connection with the subpoena that we identified here t(Jday as . Exhibit 1. HON. PATE: I imagine you did, but they're not here. MS. PANCAKE: So they're requested. They were not brought to the depositio~. HON. PATE: And you have to go to the judge to resolve that issue because --; i MS. PANCAKE: That will just take more time. I understand. ·i HON. PATE: Unfortunately, I don't have those powers. I gave up my black r~be with a certain of my- certain of my powers. Otherwise, people would be in jail now: probably. i (Perine, Linda- Vol. 1, 133:7-140:6, Nov. 24, 2014) ·' I I Do you have documents establishing whether or not the rental in 2012 --~June of 2012 was a long-term or a short-term rental? :i Q A Ya And you didn't bring those today with you, correct? A That is,correct. (Perine, Linda- Vol. 1, 143:13-143:19, Nov. 24, 2014) Q : .! What about July of 2012? MR. BRIGGS: Hang on. I'm just going to - for the record, those documents w~uld also be protected by the witness's right of privacy for all of the legal authorities I'vej discussed before. That's why they're not here. Nobody's defying the subpoena. Judge I Wohlfeil said we ~ould assert objections here. We're asserting them here. That1s why we don't have those documents. ' BY MS. PANCAKE: Q Ms. Perine, did you rent the property of 811 Sail Ga~riel Place on a short-term basis which would trigger the TOT in July of 2012? A Yes. Q po you have records establishing whether or not that rental is a short-te~ rental? A Yes. ' MR. BRIGGS: And the same objections, same explanation for ~hy they weren.';t produced. Q 147594.1 Meet and Confer Letter re: Deposition of Linda Perine February 3, 2015 Page 13. (Perine, Linda- Vol. 1, 143:20-144:13, Nov. 24, 2014) Q Do you have records establishing whether or not the August, 2012, rental of one -excuse me -- 811 San Gabriel Place was a short-term or long-term rental? A Yes. MR. BRIGGS: Same objections; same explanation. (Perine, Linda- Vol. 1, 144:24-145:4, Nov. 24, 2014) Q Do you have records establishing whether or not the August, 2012, rental of one -excuse me -- 811 San Gabriel Place was a short-term or long-term rental? A Yes. MR. BRIGGS: Same objections; same explanation. (Perine, Linda- Vol. 1, 144:24-145:4, Nov. 24, 2014) Q Do you have records that show when 811 San Gabriel Place was rented on.~ shortterm basis in 2013? : A Yes. MR. BRIGGS: Same objections; same explanation. (Perine, Linda- Vol. 1, 148:2-148:6, Nov. 24, 2014) 1 Q Well, actUally my question was: Do you have records establishing that you! actually rented the property on a short-term basis in 2014. That's the question that I'm aSking you. A I apologize. I believe I've answered that question, but yes. MR. BRIGGS: Same objections; same explanation. (Perine, Linda- Vol. 1, 150:1-150:7, Nov. 24, 2014) Q How are you aware that you need to make a tax payment with respect to 8~1 San Gabriel Place? ·! A When the City sent me this (indicating), they gave me a folder with instructions about the taxes and envelopes and payment things and an instruction manual. And that instruction manual tells me the taxes that I'm supposed to pay. ., MR. BRIGGS: And when the witness says "this," she was holding up Exhibit 3 ~this deposition transcript. ;i BY MS. PAN CAKE: Q Do you have the folder that you testified about? 147594.1 :; Meet and Confer Letter re: Deposition of Linda Perine February 3, 2015 Page 14 ; i ·; ; : ! ,I A It's a standard folder that they send to everybody that gets one of these trartsient occupancy registration certificates. I'm guessing the City Attorney has one. Q And my question -- thanks for the clarification, but my question is: Do you, still have the fol~er that you've testified about? .i A Yes. (Perine, Linda- Vol. 1, 155:7-156:2, Nov. 24, 2014) Q Do you have any documents relating to any communications between you ~d the Gty of San Diego regarding transient occupancy taxes paid by you? ·) MR. BRIGGS: It's just a yes-or-no question for you. ·· THE WITNESS: Yes. ·i BY MS. PANCAKE: Q So you do have documents responsive to Category 1'0? ! A Yes. MR. BRIGGS: Just before we go on to 11, we're objecting to Category 10 because her returns and the payments are subject to a right of privacy under the various authorities I've discussed earlier, including the San Diego Municipal Code provision that Iicited. (Perine, Linda- Vol. 1, 173:10-174:1, Nov. 24, 2014) Q So, as the term is defined, do you have any documents that are responsive to. Category 12, Ms. Pe~ine? A That aren't covered by attorney-client privilege? Q W~ll, whether they're covered by attorney-client privilege is sort of the next step. As a threshold matter, I think we need to first establish whether any document$ exist. If they do exist, then I think it's your obligation to provide a privilege log identifying the documents which -- to which :... excuse me - identifying the responsive documents about which you claim attorney-client privilege. MR. BRIGGS: Let's just-- the question on the table, Linda, is whether you're aware of any such documents that exist. That's a "yes" or "no" question. If you are and they're attorney client, we'll decil with the privilege in a moment. · THE WITNESS: Okay. Yes. MR. BRIGGS: And so at this point I will assert the attorney-client privilege to ~tend-­ to the extent the answer includes any such communications between the witness and me or the witness and my office. I would also point out that.! am not awat;e of any 147594.1 Meet and Confer Letter re: Deposition of Linda Perine February 3, 2015 Page 15 legal requirement that a third-party witness produce a privilege log at his or ha] deposition. The judge -' MS. PANCAKE: Did I ask her to produce a privilege log today? i MR. BRIGGS: You actually said you think it's her obligation to produce a privil¢ge log · about a minute and a half ago. MS. PANCAKE: Okay. Well, I think at some point in time it may be. I did not~ean to --to communicate that I think she needs to bring a privilege log with her today,at the ': deposition. So I just want to make that clarification clear. :' (Perine, Linda- Vol. 1, 175:11-176:21, Nov. 24, 2014) Q Do you have documents responsive to Category 19? · i A ~s. : MR. BRIGGS: Same objection as well as right of privacy, financial right of privacy covered by the legal authorities discussed earlier, including San Diego Municip~l . ., Code. (Perine, Linda- Vol. 1, 183:1-184:11, Nov. 24, 2014) BY MS. PANCAKE: Q So maybe I can shortcut this. There's a list of types of documents that we were seeking with respect to Category 19. Do you have all of the different types of . : documents that are listed out here that are included in the documents we're se~g? A Yes. MR. BRIGGS: And same objection as just a moment ago, other than the exhibits ~that have been discussed here today. (Perine, Linda- Vol. 1, 184:21-185:4, Nov. 24, 2014) Q So, Ms. Perine, my question is: Do you have any documents in your posses~ion that are responsive to Category Number 24? ·\ A Didn't I already answer this question? I thought I had. MR. BRIGGS: Humor her, and answer her again. THE WITNESS: Yes. BY MS. PANCAKE: Q You do have documents? ' .. i 147594.1 Meet and Confer Letter re: Deposition of Linda Perine February 3, 2015 Page 16 . i .! ; l MR. BRIGGS: And I'm going·to object on attorney-client privilege SJ;Ounds. lf,tlte witness is thinking of email ·communication with my office, that would be subjeft to attorney-client privilege. .l (Perine, Linda- Vol. 1,187:24-188:18, Nov. 24, 2014) Q And 71? A Yes. Q You do have documents? A Yes. MR. BRIGGS: Same objections. Q Paragraph 74- excuse me-- Category 74, do you have any documents resl'9nsive to that category?. ! A Yeah. Probably. MR. BRIGGS: Are they attorney-client or other stuff? THE WITNESS: Most likely they're attorney-client. MR. BRIGGS: Then we'll assert the attorney-client privilege. MS. PANCAKE: I just want to point out that this request asks for correspondence or communications, including emails or text messages between you and any members of SDOG. So this is not asking for any documents between you and your attorn~y,. MR. BRIGGS: Well, if the attorney is involved in an email communication tJlat she has between her and another member and it's concerning something legal, then it would be attorney-client privilege. : MS. PANCAKE: Well, we'll argue about that. You can-- if there's a document that's responsive to which you're claiming a privilege, you can proVide me with a privilege log; and we can evaluate whether we need to go forward with it. MR. BRIGGS: Again, in the absence of a court order, I'm not aware of a thir&party witness having to do a privilege log. But, if you know the answer to the ql,lestion, tell her "yes" or tell her "no." ·\ THE WITNESS: I thought I ~lready answered it. Yes, I think I might. ! I 1 I ': And what about Category 75, Ms. Perine? MR. BRIGGS: That's attorney-client privilege. She's not going to answer the question. Well, you can tell her whether you have any communication betWeen you and my office. , I 147594.1 Meet and Confer Letter re: Deposition of Linda Perine February 3, 2015 Page 17 THE WITNESS: Yes. (Perine, Linda- Vol. 1, 198:2-15), Nov. 24, 2014) 147594.1 Meet and Confer Letter re: Deposition of Lind.a Perin~ February 3, 2015 Page 18 'i I i : ''I ; I i TEXT OF DEPOSffiON QUESTIONS. OBJECTIONS, AND RULINGS BY DISCbVERY REFEREE . ·, Q: What were your duties as Director of Community Outreach? ·i MR. BRIGGS: I'm going to object again. I'm not sure what her personnel · responsibilities and her job in the mayor's office have to do with whether SanDG has standing or her membership in the organization. I don't think she's required tog<> into personnel matters. So I'm going to instruct her not to answer. · MS. PANCAKE: Well, I don't think this really constitutes a personnel matter .. Ifs a paid position that she was undertaking; and I think I'm entitled to know whethi~r or not, in the capacity of her duties as the Director of Community Outreach, did she ev~r deal with any SDOG issues. . . MR BRIGGS: Well, I'll let you ask her that question; but that's not what you asked her. MS. PANCAKE: I understand that, but I'm trying to ask some foundational qu¢stions so that her comments will have some relevance and be able to be evaluated. i MR. BRIGGS: And I think you're putting the cart before the horse. :i MS. PANCAKE: Your Honor? .,I HON. PATE: The objection is overruled. Her duties as a public employee should be public information, so there's no privacy issue. MR. BRIGGS: Well, I would note that you've been aware of Ms. Perine's membership in SanDOG for quite some time. And you've actually not done anything to look ~to --I have never seen any written discovery on the subject; And·. MS. PANCAKE: And I am wondering why you're making comments like this. • really like to keep the editorial comments, the pontificating, and the witness coa,~g to a minimum. As you know, Cory, we're on a very tight time frame here. And ~'any gratuitous remarks or statements you have to make I think are inappropriate. I think, if I ask a question that's objectionable, you should state your objection. I will staili my reasons for asking the question or my position on it. The judge can rule, and ~ can move on. I don't want to have this record -- I don't want to have the time used \lp by those kinds of statements by you. MR. BRIGGS: All right. ~ ~ MS. PANCAKE: So please keep it to a minimum. , MR. BRIGGS: Then I'll cut to the chase. I'm instructing the witness not to answ~r:the question. J 1 I rd '', Ii ~! i ' , I 147594.1 ! i Meet and Confer Letter re: Deposition of Linda Perine February 3, 2015 Page 19 MS..PANCAKE: Over the judge's ruling? MR. BRIGGS: Yes. (Perine, Linda- Vol. 1, 21:22-23:19, Nov. 24, 2014) Q.: Do you consider the-- your directorship a significant achievement for you? MR. BRIGGS: Objection. Irrelevant, right of privacy. What she thinks about her job is nobody's business. She doesn't have to answer the question. I am instructing her:not to ' answer. MS. PANCAKE: Your Honor? HON. PATE: Overruled. MR. BRIGGS: I'm still instructing her not to answer. (Perine, Linda- Vol. 1, 25:19-26:3, Nov. 24, 2014) ; Q Were you active in Mayor Filner's campaign in 2012? MR. BRIGGS: I'm going to object. Her political activities are private. They're npt relevant, and they're outside the scope of discovery. And I'm going to instruct the witness not to answer. ·! MS. PANCAKE: Your Honor-HON. PATE: Why don't you read the question back again, make sure I understand it. , (The pending question was read.) The witness can answer. i1 HON. PATE: I would overrule the objection. MR. BRIGGS: I'm going to give her the same instruction. •:!i MS. PAN CAKE: Are you going to follow your attorney's advice? •~ MR. BRIGGS: Also, let me clarify: Not just a right of privacy but, under the Fir~t Amendment right of a.Ssociation and comparable provisions in the State Constit:htion, what she does politically as a private citizen is nobody's concern. And I'm i instructing her not to answer. MS. PANCAKE: Same. HON. PATE: I don't know what state Mr. Briggs lives in, but I think everything: that people do politically nowadays is recorded, documented, and subscribed and ar;talyzed by everybody. So, my rulmg is the same. And, if he does -- if he mstructs her J,lot to answer, then you have the right to seek sanctions from Judge Wohlfeil on all th~se issues where he's disregarded the referee's ruling. BY MS. PAN CAKE: Q Ms. Perine, having heard the judge's ruling and your: attorney's instruction, are you following your attorney's instruction on this point? 147594.1 ~ Meet and Confer Letter re: Deposition of Linda Perine February 3, 2015 Page20 ' i i ;! I :j A I'm folloWing my attorney's instructions. (Perine, Linda- Vol. 1, 120:18-122:3, Nov. 24, 2014) Q Were you involved in any other organizations that were against the TMD? ! MR. BRIGGS: Are you asking her whether she was a member of any organiZation that's opposed the TMD? MS. PAN CAKE: I'm asking if she was involved in any organizations that were against theTMD. MR. BRIGGS: Other than the SanDOG. MS. PANCAKE: Any of them. . MR. BRIGGS: Well, to the extent you're asking about organizations other than ,$DOG, I'm going to invoke her constitutional right of privacy and associational privacy. She That is the ~AACP doesn't have to tell you what organizations she's a member of. case from the U.S. Supreme Court which also covers a private citizen's political: activities. And I'm going to instruct her not to answer. If you wantto limit it tO: SanDOG, or SDOG, that's fine. But you already know the answer to that question, but she's not going to -MS. PANCAKE: Your Honor? HON. PATE: I'd overrule the objection and instruct her to answer. MR. BRIGGS: I'm going to instruct her not to answer. BY MS. PAN CAKE: Q ,Ms.' Perine, after hearing the judge's ruling and your! attorney's instruction, are you going to follow your attorney's instruction and not answer the question? . A I'm going to follow my attorney's instruction (Perine, Linda- Vol. 1, 124:21-125:24, Nov. 24, 2014) ',\ 147594.1 DECLARATION OF CORY J. BRIGGS Exhibit Adriana Quintero From: Sent: To: Cc: Subject: Attachments: Pamela A. Jaramillo Thursday, April 09, 2015 12:23 PM Cory Briggs; Adriana Quintero; Brock, Carmen Jennifer L. Pancake; Ryan T. Dunn; Michael G. Colantuono SDOG/TMD- Document attached DEFENDANT TMD CORP.'S AMENDED NOTICE OF MOTION AND MOTION TO COMPEL FURTHER TESTIMONY AND PRODUCTION OF ADDITIONAL DOCS. BY UNDA PERINE. pdf SDOG v. Citv of San Diego, et a/. CASE NO: 37-2012-00088065-CU-MC-CTL Attached is the following document: DEFENDANT SAN DIEGO TOURISM MARKETING DISTRICT CORPORATION'S AMENDED NOTICE OF MOTION AND MOTION TO COMPEL FURTHER TESTIMONY AND PRODUCTION OF ADDITIONAL DOCUMENTS BY LINDA PERINE OR, IN THE ALTERNATIVE, A PRIVILEGE LOG AND REQUEST FOR SANCTIONS Pamela A. Jaramillo Legal Assistant Colantuono, Highsmith & Whatley, PC 300 South Grand Avenue, Suite 2700 1 Los Angeles, CA 90071 Direct 213-542-5714 1 Main 213-542-5700 1 Fax 213-542-5710 pjaramillo@chwlaw.us 1 www.chwlaw.us This email may contain material that is confidential, privileged and/or attorney work product for the sole use of the intended recipient. Any review, reliance or distribution by others or forwarding without express permission is strictly prohibited. If you are not the intended recipient, please contact the sender and delete all copies. 1 2 DECLARATION OF UNDA PERINE I, Linda Perine, 3 testify as follows: 4 1. am over the age of eighteen and if called as a witness in this proceeding will I attended a deposition o'n November 24, 2014, where I was deposed by Defendant San 5 Diego Tourism Marketing District Corporation ("TMD"). I chose not to answer certain questions 6 during my deposition on the advice of my attorney. I am now providing answers to the four questions 7 that are the subject ofTMD's current motion to compel not because (believe it was improper for me 8 to refuse to do so during my deposition, but because I am tired of being harassed by TMD simply 9 because I exercised my constitutional right to speak out against an i'Uegal government decision .. The 10 questions have nothing to do with my standing to sue (had I chosen to do so in my own name) as 11 someone who is liable to pay the City of San Diego's Transient Occupancy Tax and the Tourism 12 Marketing District Tax that is the subject of this lawsuit. 13 2. The first question that TMD wants me to answer, about my duties as Director of 14 Community Outreach, was not answered directly because I agreed with my attorney that it was 15 objectionable. However, Jennifer Pancake re-worded her question in light of the objection raised to the 16 first question, and ultimately managed to ask questions that got her the same information. Please review 17 my deposition transcript starting on page 23, line 20, through page 25, line 18. Those are the same 18 substantive answers I would have given to the first question had I not agreed with my attorney that it 19 was objectionable as phrased. 20 21 3. The remaining three questions I would answer as follows (and against I am offering them only to put an end to the nightmare harassment that TMD is inflicting on me): 22 Q: Do you consider the- your directorship a significant achievement for you? 23 A: [ have never given it that kind of thought, and [would only be guessing if I were to 24 give an answer one way or the other. 25 Q: Were you active in Mayor Filner's campaign in 2012? 26 A: No, I was not on his campaign staff. However, I did support his candidacy. 27 Q: Were you involved in any other organizations that were against the TMD? 28 A: Not that I am aware of. 1 4. Immediately after my deposition, I went back and again reviewed all of my files to see 2 whether there was any chance that I missed any responsive documents. I can re-affinn, unequivocally, 3 that I have no documents beyond what I have already produced that would be even potentially 4 responsive to Category nos. 24, 74, and 75. 5 5. In addition, the only documents I have that are responsive to Category no. 19 and that 6 I have not already produced are the documents that provide the basis for the infonnation that goes into 7 my Transient Occupancy Tax returns under San Diego Municipal Code Section 35.0114 (innong other 8 legal provisions). 9 6. ' I tenninated Cory Briggs as my attorney in connection with my deposition after the I0 deposition was completed. It is my understanding that SDOG is opposing the current motion for my 11 benefit, as an ad hoc membership benefit. 12 13 14 I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Date: March 2, 2015. 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DECLARATION OF LINDA PERINE PAGE2 SUPPLEMENTAL DECLARATION OF LINDA PERINE 2 I, Linda Perine, am over the age of eighteen and if called as a witness in this proceeding will 3 testify as follows: 4 1. In light of recent events, which I learned about after I drafted and signed a declaration 5 on March 2, 2015, I am now going to invoke my Fifth Amendment right against self-incrimination 6 going forward as to any questions or examination by San Diego Tourism Marketing District 7 Corporation's ("TMD") attorneys. Since learning about the recent events, I am convinced TMD, its 8 counsel, and possibly others are looking for ways to retaliate against those who, like myself, oppose the 9 Transient Occupancy Tax ("TOT") (otherwise known as the Tourism Marketing District Tax). 2. 10 I believe that TMD, the City Attorney's Office, and others affiliated with the hotel and 11 convention center industry went after Cory Briggs and his wife. They took confidential information 12 from her deposition in this case and then misrepresented it publicly to make both of them look dishonest 13 and to accuse them of crimes in the media. 3. 14 lfl were to submit to a further deposition, I believe that the City Attorney's Office, the 15 TMD, and its cohorts would also distort my testimony and falsely use it against me, as they have already 16 done to others in this case (to a person who is not even associated with this case or SDOG in order to 17 retaliate against Mr. Briggs). I have a constitutional right to be opposed to the TMD tax that SDOG is 18 challenging in this lawsuit. I should not have to risk being harassed and maligned because of my 19 opposition. (refuse to submit myself to this almost certain intensified harassment if I were to testify 20 again: 21 4. In my previous deposition on November 24, 2014, TMD asked for my personal tax 22 records, which it now seeks through this motion to compel. I already provided my TOT certificate, 23 which is the only personal record of mine that is relevant to this case and it proves that I was qualified 24 under the TMD regulations to vote on the TMD tax. My tax records are protected by statute. The fact 25 that TMD would persist in seeking them confirms my suspicion that TMD and the City Attorney's 26 Office want to try to dig up some dirt on me as payback for my opposition to the TMD tax. 27 28 5. In my March 2, 2015, declaration, I provided answers to the four questions TMD posed in the motiori to compel, questions so far removed from my membership in SDOG, possession of a TOT certificate, and voter registration (which is all that I needed to be entitled to vote on the TMD tax) that I cannot imagine a further deposition being anything other than an attempt to trip me up so TMD, the 2 City Attorney's office, and their cohorts can later distort my testimony and accuse me of some sort of 3 criminal wrongdoing, just a:s they did to with Mr. Briggs and his wife. 4 6. Ifi am ordered to submit to a further deposition, I will assert the Fifth Amendment and 5 refuse to answer any further questions. I refuse to facilitate the almost certain harassment and 6 persecution of me. The protective order did no good for Mr. Briggs and his wife. Since I am no longer 7 'covered by the protective order, I am worried that the results for me will be even worse. 8 9 10 i declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Date: April 12, 2015. 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DECLARATION OF LINDA PERINE .PAGE2 PROOF OF SERVICE 1. 2. My name is .Janna Ferran!_ _ _ _ _ _ _ _ _ _ . 1 am over the age of eighteen. 1 am employed in the State of California, County of ...San Die.~rn_ _ _ _ _ _ . My___/_ business _ _ residence address is -~Law Coruoration...__ _ _ _ _ 1U3_M.Ilr..~_l!...61vd,_Sui~H!.1,_S.!!!!l2W_,_CA 'l..lllO____________________________ . 3. On ---------~P-ril2_lL )_!115_____ , 1 served ___ an original copy _L_a true and correct copy ofthe following documents: ..Plaintiff S,an_Qi.~ns fo...r_Qp~.!LGo~rn.me.nr.s._QpllQ.s.itiQJl tQ M.!ltiQ11_1Q...C.IliD.P~L _furthe_r_.I!!..~imon_y an!JJ~ro~Jucqon_Qf_Ad_!liti.Q.!lllJJ!Q_cu rrten_!!]J_y Li!!~!! Pllfj!!~..ill".J. in J.h~------_Ait~rn,atj_y~,_.a..f.rjyl~~L!J,g_!!nd_I~gqy~rt_f9...r_S.!!!!~D!!D.!;..Pecjar!!_Q!!.!!_.2f_Cory.J_.Jldg~;_ _______ _ j)e~ar,atio.!Lilf..Li!!da..f.!lfjne;_ll.vil~!W.Pierrt~.!l..!l!l!t~larl!jjQ..!! of_l;;.i.!l_