11 12 I3 16 300 S. GRAND AVENUE. SUITE 2700 LOS ANGELES. CA 90071-3137 17 Colantuono. Highsmith Whotley130148.? MICHAEL G. COLANTUONO, State Bar No. 143551 MCulanIuono@chwlaw.us JENNIFER L. PANCAKE, State Bar No. 138621 Pancakc@chwl aw.us RYAN THOMAS DUNN, State Bar No. 268106 RDunn@chwlaw.us COLANTUONO, HIGHSMITH WHATLEY, PC 300 S. Grand Ave., Suite 2700 Los Angeles, California 90071 Telephone: (213) 542?5700 Facsimile: (213) 542-5710 Attorneys for Defendant SAN DIEGO TOURISM MARKETING DISTRICT CORPORATION SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SAN DIEGO, CENTRAL COURTHOUSE SAN DIEGANS FOR OPEN GOVERNMENT, Plaintiffs, v. CITY OF SAN and ALL PERSONS INTERESTED IN THE MATTER OF THE RENEWAL OF THE SAN DIEGO TOURISM MARKETING DISTRICT, THE LEVYING OF ASSESSMENTS UPON THE ASSESSED BUSINESSES FOR A PERIOD OF THIRTY- NINE AND ONE-HALF YEARS, AND THE PRESCRIBING OF A METHOD FOR COLLECTION OF ASSESSMENTS, Defendants. CASE NO. Unlimited Jurisdiction (Case assigned to Hon. Joel Wohlfeil) DEFENDANT SAN DIEGO TOURISM MARKETING DISTRICT OPPOSITION TO PLAINTIFF SAN DIEGANS FOR OPEN MOTION FOR PROTECTIVE ORDER MOTION TO QUASH REGARDING DEPOSITION OF PERSON MOST QUALIFIED FOR SAN DIEGANS FOR OPEN GOVERNMENT IMAGED FILE Complaint Filed: December 19, 2012 Hearing Date: August 15, 2014 Time: 9:00 am. Dept.: C-73 OPPOSITION TO MOTION FOR PROTECTIVE ORDER MOTION TO QUASH Colontu'ono. 8r. Whoiley. PC 300 s. GRAND AVENUE. SUITE 2700 130148.? LOS ANGELESTABLE OF CONTENTS INTRODUCTION I FACTUAL AND PROCEDURAL BACKGROUND 2 ARGUMENT 4 I. THIS COURT HAS ALREADY FOUND TMD CORP. MAY DISCOVER THE FACTUAL BASES FOR STANDING ALLEGATIONS 4 II. TMD CORP. IS ENTITLED TO DISCOVERY TO SUPPORT ITS CLAIM SDOG IS A MERE ALTER EGO OF ITS LAW CORPORATION 7 SDOG CANNOT MEET ITS BURDEN TO JUSTIFY A PROTECTIVE ORDER TO BAR AN ILL-DEFINED LINE OF QUESTIONING I0 IV. TMD CORP. WILL TAKE DEPOSITION IN SAN DIEGO I2 CONCLUSION . ll 1 DEF OPPOSITION TO MOTION FOR PROTECTIVE ORDER MOTION TO QUASH Colantuono. Whatley. PC 300 s. GRAND AVENUE. SUITE 2700 130148.? LOS ANGELES. CA 90071?3137 TABLE OF AUTHORITIES Page(s) Federal Cases Better Business Bureau of Washington, D. C, Inc. v. United States (1945) 326 US. 279,283 9 Hunt v. Washington State Apple Advertising Comm ?n (1977) 432 US. 333 4, 5 Lujan v. Defenders of Wildlife (1992) 504 US. 555 6 State Cases Britt v. Superior Court (1978) 20 Cal.3d 844 1 0 Guzman v. General Motors Corp. (1984) 154 Ca1.App.3d 438 12 Hub City Solid Waste Services, Inc. v. City of Compton (2010) 186 Ca1.App.4th 1114 8 - Korean Philadelphia Presbyterian Church v. California Presbytery (2000) 77 Ca1.App.4_th 1069 5, 6 Maldonado v. Superior Court (2002) 94 Cal.App.4th 1390 7 Mesler v. Bragg Management Co. (1985) 39 Ca1.3d 290 8 Palm Valley Homeowners Ass Inc. v. Design MTC (2000) 85 Ca1.App.4th 553 4 Planned Parenthood Golden Gate v. Superior Court (2000) 83 Ca1.App.4th 347 10, 11 Puerto v. Superior Court (2008) 158 Ca1.App.4th 1242 12 Save Open Space Santa Monica Mountains v. Superior Court (2000) 84 Cal.App.4th 235 11 Shaoxing County Huayue Import Export v. Bhaumik (2011) 191 Cal.App.4th 1189 8 2 DEFEN OPPOSITION TO MOTION FOR PROTECTIVE ORDER ANDIOR MOTION TO QUASH Coium?uono. Highsmith Whuiley, PC 300 s. GRAND AVENUE. SUITE 2700 [30148.7 LOS ANGELES, CA 90071-3137 Sonora Diamond Corp. v. Superior Court (2000) 83 Cal.App.4th 523 8, 9 Union Bank v. Superior Cowl (1995) 31 CaI.App.4th 573 7 Federal Statutes Internal Revenue Code 501(c)(3) 5 State Statutes Code of Civil Procedure 860 2 863 3 ?2017.010 2, 5,6 7, 11 2025.250, subd. 12 Corporations Code 208 5, 6 1502 4 2205, subd. 4 Revenue Taxation Code 23301 4 3 OPPOSITION TO MOTION FOR PROTECTIVE ORDER MOTION TO QUASH Cotontuono. Highsmith 8n Whotley. PC 300 s. GRAND AVENUE. SUITE 2700 130148,? LOS ANGELESINTRODUCTION In overruling Defendant San Diego Tourism Marketing District Corp.?s Corp?) demurrer to Plaintiff San Diegans for Open Government?s Third Amended Complaint, this Court wrote ?discovery is the proper mechanism to expand on these allegations? of standing to pursue this case. (Not. of Rulings on Dem. and Mot. for Prot. Order, at p. 1 Nevertheless, SDOG seeks to defeat that very discovery. It brings this Motion for Protective Order and Motion to Quash claiming: TMD Corp. has no right to pursue defenses related to standing; (ii) inquiry into standing violates the privacy of ?members? (who are within this Court?s protective order); and apparent inability to identify a living individual who can answer questions about the organization absolves it of the duty to respond to the deposition notice. Of course, none of this is true. This motion is yet another unfounded attempt to frustrate discovery. TMD COrp. requires discovery to defend against a suit that threatens its existence and the health of San Diego?s lodging industry: SDOG seeks to adjudicate on a discovery motion substantive issues TMD Corp. is entitled to have heard at summary judgment or trial. The Court need not indulge these dilatory tactics; it should deny this motion. Apparently without irony, SDOG claims TMD Corp. lacks standing to assert lack of standing. Moreover, it tries the claim on a discovery motion, before TMD Corp. has even brought a motion asserting those defenses. SDOG knows enough about itself to assert the need for a further order ?to protect the privacy rights of its members.? Yet the only person who could have answered many deposition t0pics is the conveniently dead Ian Trowbridge, whom SDOG asserts to be its founder in 2008 although his name never appeared on cerporate documents until 2009. If SDOG is a bona ?de organization that might have standing here and not a mere front for its frequent and only counsel then someone should be ableto answer questions about its ?nances, activities, leadership, etc. Mr. Trowbridge died in February 2013; this lawsuit has been ongoing since that time, presumably supervised by board of directors. Some of these people must have information about SDOG, its corporate structure, activities, and relationship with its counsel. If OPPOSITION TO MOTION FOR PROTECTIVE ORDER MOTION TO QUASH Cotontuono, 8c Whatley. PC 300 S. GRAND AVENUE. SUITE 2700 LOS ANGELES. CA 90071-3137 there are no such leaders, that fact will support TMD Corp.?s belief that SDOG is a mere front for its counsel. Lawsuits do not direct themselves although lawyers sometimes do. SDOG also seeks an order limiting the s00pe of the Person Most Quali?ed deposition to topics it deems ?relevant.? Not so fast. Relevance objections are proper when a party seeks to introduce evidence obtained through discovery, not to discovery that might lead to such relevant evidence. (Code Civ. Proc., 2017.010.) This Motion essentially seeks a ruling that TMD Corp. may not pursue defenses pr0perly plead in its answer to which SDOG did not demur. (TMD Corp.?s Ans. to Third Amended Complaint 2d 3d Aff. Def. #177] [?Lack of Standing or Status as Real Party in Interest? and ?Lack of Corporate Power, Rights and Such is not the law. TMD Corp. seeks to depose PMQ on topics that go to whether SDOG is a bona ?dc non?pro?t organization meaningfully independent of its counsel that could have standing here. claim that ?everything is on the up and up? because it has ?led some (but not all) of the forms necessary to maintain a corporate entity is not a defense to discovery. The Court will have opportunity to consider the parties contentions on this issue in due course they cannot be tried by a discovery motion before TMD Corp. has opportunity to gather evidence to support its claims. Surely SDOG invariably. a plaintiff would regret a contrary rule. Ironically, an organization named ?for open government? ferociously resists any transparency about its own affairs including the disposition of hundreds of thousands of dollars of taxpayer-funded settlements and attomeys? fees awards in myriad cases. SDOG ?led this casein December 2012 but has yet to produce meaningful evidence it is a real organization that might have standing here. It is hard to imagine other open government organizations, such as Californians Aware or the Reporters Committee for Freedom of the Press, would have such dif?culty proving their bona ?des. If SDOG walks its talk, it should have no problem with this inquiry. FACTUAL AND PROCEDURAL BACKGROUND SDOG sues here under Code of Civil Procedure section 860 et seq. to challenge an assessment hoteliers within the San Diego Tourism Marketing District voted to impose on 2 OPPOSITION TO MOTION FOR PROTECTIVE ORDER MOTION TO QUASH Colantuono. Highsmith Whatley, PC 500 s. GRAND AVENUE. SUITE 2700 130148.? LOS ANGELES. CA 90071themselves to fund collective marketing for their own bene?t. (See TAC, 1111 6, 14?] 8 Such a reverse validation suit may be brought only by an ?interested person.? (Code Civ. Proc., 863.) SDOG argued on three demurrers it has associational standing as ?a non?pro?t voter and taxpayer organization operating under the laws of the State of California? with ?at least one? member who resides and is a registered voter in the City of San Diego. (TAC, 11 1.) TMD Corp. ?rst propoundcd discovery on SDOG in June 2013. A protracted discovery dispute ensued including the Court of Appeal?s denial of writ petition to overturn this Court?s order compelling disclosure (4th DCA Order Denying SDOG Pet. for Writ of Mandate #148]) and this Court?s entry of a January 8, 2014 protective order. (Prot. Order #1811) A further round of discovery motions was required to obtain meaningful compliance with that order compelling disclosure. (Mot. for Tenn. Sanctions On June 5, 2014, TMD Corp. served a Notice of Deposition on PMQ to testify for SDOG and to produce related documents. (Declaration of Mekae1a Gladden [?Gladden Be. A.) SDOG objected to TMD Corp.?s deposition topics and document requests by a June 12, 2014 letter (Gladden Decl., Exh. B), even though the topics and requests were both relevant and narrowly tailored.l TMD Corp. responded by a June 16, 2014 meet-and~confer letter, explaining the basis for the notice-and its need for information as to the deposition t0pics. (Gladden Decl., Exh. C.) TMD Corp. noted its purpose was to inquire further into standing, an issue which has been at the heart of its discovery requests for over a year. (Raid) Thus, claim that the information sought by TMD Corp. is ?irrelevant? is simply false. (Gladden Decl., Exh. B.) Moreover, many of objections cut-and?paste the arguments from its ?rst Motion for Protective Order regarding its members? associational right of privacy, which were satis?ed by the resulting order. (Prot. Order #1311.) I The TMD Corp. identi?ed deposition topics related to organizational structure, membership policies and procedures, activities, relationship with the Briggs Law Corporation, and interest in the renewal of the TMD. (Gladden Decl., Exh. A, pp. The document requests sought corporate records, meeting minutes, written agreements with the Briggs Law Corporation, records of SD ?Jnds, receipts, and payments, communications between SDOG and the City, and documents evidencing payment of the TMD assessment by any SDOG member. (1d. at pp. 3 DEF OPPOSITION TO MOTION FOR PROTECTIVE ORDER MOTION TO QUASH Colant'uono, 8r Whatley. PC 300 s. GRAND AVENUE. SUHE 2?oo 130148.? LOS ANGELES. CA 90071-3137 SDOG sent a further letter on June 17, 2014 repeating, nearly verbatim, the gist of its June 12 letter rather than meaningfully responding to TMD Corp.?s June 16 meet-and?confer letter. (Gladden Decl., Exh. D.) On June 20, three days before the PMQ deposition, SDOG ?led this motion. (Mot. Thus, the PMQ deposition has been frustrated to date. On July 30, 2014, TMD Corp. moved for discovery orders including, inter alia, appointment of a discovery referee for the PMQ and other depositions. (ROA #246.) This motion is set for hearing by this Court on August 29, 2014 at 8:30 am. ARGUMENT 1. THIS COURT HAS ALREADY FOUND TMD CORP. MAY DISCOVER THE FACTUAL BASES FOR STANDING ALLEGATIONS Oblivious to the irony of its argument, SDOG claims TMD Corp. ?does not have standing" to assert that the ?ling of this case exceeds corporate powers the ?ultra vires? defense. Standing is jurisdictional and an association can have standing only if one of its members does and the subject of suit is pertinent to the purpose of the association. Hunt v. Washington Stale Apple Advertising Comm ?n (1977) 432 US. 333, 343 One need not meddle in the internal governance of a non?profit to determine its standing, but one must know whether there is anything to be governed and anyone governing it. SDOG either misunderstands or misrepresents the ultra vires defense. TMD Corp. does not sue to challenge internal governance; it asserts as a defense that SDOG has no power to bring this lawsuit just as a corporation suspended for failure to ?le taxes or to ?le with the Secretary of State the required biennial statement of of?cers may not prosecute or defend a suit. Palm Valiey Homeowners Ass Inc. v. Design MT (2000) 85 Cal.App.4th 553, 560?561; see also Rev. Tax. Code, 23301 [failure to pay taxes, interest and penalties results in suspension of corporate powers, rights and privileges]; Corp. Code, 2205, subd. [failure to ?le Corp. Code, 1502 statement suSpends corporate powers, rights, and privileges] .) Here, TMD Corp. seeks to dcpose PMQ to determine whether SDOG has the 4 OPPOSITION TO MOTION FOR PROTECTIVE ORDER MOTION TO QUASH Colantuono, 8r Whatley, PC 48.7 300 S. GRAND AVENUE, SUITE 2700 LOS ANGELES. CA 90071-3157 17corporate power to prosecute this action or whether this suit is ultra vires. Although SDOG may quibble with TMD Corp.?s language, the substance of the defense, not its form, controls here. The Court is aware of many of the facts TMD Corp. seeks in the PMQ deposition, as TMD Corp. identi?ed them On demurrer. Indeed, in overruling the demurrer to the TAC, the Court wrote: ?discovery is the proper mechanism to expand on these allegations.? (Not. of Rulings on Dem. and Mot. for Prot. Order, at p. For example, Section Two of Articles of Incorporation states its ?specific purpose? is ?the promotion of social welfare through advocacy for and education regarding responsible and equitable environmental development.? (Gladden Dec1., Exh. at p] of Arts. of Incorp.) Section 4(a) of Articles states SDOG ?is organized and operated exclusively for charitable, educational, and scienti?c purposes within the meaning of Section 501(c)(3) of the Internal Revenue Code.? (Ibid) However, if lawsuit does not seek to protect interests ?germane to the organization?s purpose,? then it lacks standing as an association. (See Hunt, supra, 432 US. at p. 343 association has standing to bring suit on behalf of its members when: its members would otherwise have standing to sue in their own right; the interests it seeks to protect are germane to the organization?s purpose; and neither the claim asserted nor the relief requeSted requires the participation of individual members in the TMD Corp. is entitled to discover evidence of the relationship of this suit to the purpose of existence as a 50l(c)(3), such as consent to its counsel?s ?ling this and other suits, its statements to mcmbers and Others in the annual reports its Bylaws require, and its board meeting minutes. (See, Gladden Decl., Exh. A, Topic Nos. 4, 6?15.) SDOG also claims standing through its members, but Bylaws state it has no members. (Gladden Decl., Exh. at p. 16 of Bylaws.) What, then, does it mean to be a ?mcmber? of SDOG and how does one become such? TMD Corp. is entitled to discover facts whether SDOG pursues this action ?on behalf of its members? and does so within the scope of its corporate authority. (See Hunt, supra, 432 US. at p. 343.) Thus, whether SDOG has complied with regulations governing 501(c)(3) corporations pursuing public interest litigation, as it purports to do, is at the very least ?reasonably calculated to lead to the discovery of admissible evidence (Code Civ. Proc., 2017.010.) 5 OPPOSITION TO MOTION FOR PROTECTIVE ORDER MOTION TO QUASH Colontuono. Whotley. PC 300 s. GRAND AVENUE. SUITE 2700 [30148.7 LOS ANGELES, CA 90071~3137 reliance on Korean Philadelphia Presbyterian Church 12. California Presbytery (2000) 77 Cal.App.4th 1069 and Corporations Code section 208 are misplaced. TMD Corp. does not seek to alter corporate structure, as in Korean Philadelphia, or to rectify fraud or mismanagement in its internal governance, as section 208 contemplates. Rather, TMD Corp. seeks to learn whether SDOG has corporate power to bring this action. It does so as a defense, not an af?rmative cause of action. Plaintiffs must prove standing to invoke this court?sjurisdiction. (See Lajan v. Defenders of Wildli?? (1992) 504 US. 555, 561.) What a plaintiff must prove, a defendant may disprove and discovery is therefore appropriate. misunderstanding of TMD Corp.?s defenses is obvious in that it identi?es not a single deposition t0pic that should be precluded. Nor could it, since all of the topics are ?reasonably calculated to lead to the discovery of admissible evidence? and, to defeat discovery, SDOG must show a t0pic could not conceivably lead to the discovery of any facts relevant to proof or disproof of a claim or a defense here. (Code Civ. Proc., 2017.010.) SDOG may argue TMD Corp.?s defenses are without merit on summaryjudgment or at trial. The Discovery Act, however, does not permit defense by an embargo of information. This is a truth-seeking exercise, not s0me litigator?s gambit. Let the sun shine in, as SDOG is apt to argue elsewhere. I SDOG Overstates to argue ?the state . . . has scrutinized activities and found everything to be acceptable.? (Mot, at p. 4.) SDOG cites two documents it purportedly submitted to the Franchise Tax Board and a form Exempt Determination Letter dated November 21, 2012 weeks before it filed this suit noting SDOG is exempt fiom state franchise or income taxes. (Gladden Decl., Exhs. E, G, J.) This is not a State ?nding ?everything [is] acceptable? it explicitly notes: ?This exemption is for state franchise and tax purposes only.? (Gladden Decl., Exh. at p. 2.) Similarly, the Entity Status Letter, which SDOG also received just before ?ling this lawsuit, explains that it does not necessarily re?ect ?the entity?s status with any other agency of the State of California, or other government agency.? (Gladden Decl., Exh. F.) Thus, how and whether these and other corporate documents demonstrate it is a bona ?de corporate Organization are issues appropriately left to discovery in this action, just as this Court found on demurrer. Still further, the question here is not just existence, but its purpose. That it exists as a tax-exempt 6 OPPOSITION TO MOTION FOR PROTECTIVE ORDER MOTION TO QUASH Culuntuonc. 8c Whatley. PC 300 s. GRAND AVENUE. SUITE 2700 LOS ANGELES. CA 90071-entity to pursue environmental objectives is not suf?cient to confer standing to challenge self?funding of collective marketing of San Diego?s hotel industry. SDOG also apparently seeks a protective order regarding unidenti?ed topics in TMD Corp.?s deposition notice on the ground its former Ian Trowbridge, died of apparent liver failure a year ago. (See Gladden Decl., Exh. B, ?CityBeat? at p. 2.) This case did not die with Mr. Trowbridge. Nor would SDOG seem to concede its own demise. The entity to be deposed must designate and produce an of?cer, director, managing agent or employee ?most quali?ed? to testify on its behalf regarding the topics designated in the deposition notice. (Code Civ. Proc., 2025.230.) ?Under the current law, [i]f the subject matter of the questioning is clearly stated, the burden is on the entity, not the examiner, to produce the right witnesses. And, if the particular of?cer or employee designated lacks personal knowledge of all the information sought, he or she is supposed to ?nd out from those who do!? (Maldonado v. Superior Court (2002) 94 Cal.App.4th 1390, 1395?1396 [citation omitted].) If the PMQ does not have answers to topicsof interest to TMD Corp, he or she must find the person who does. If, after a reasonably diligent inquiry, the only answer to a particular question is don?t know," that too is relevant to whether SDOG has meaningful existence apart from its counsel such that it can withstand summary judgment on the standing defense and is therefore properly the subject of discovery. (See Union Bank v. Superior Court (1995) 31 Cal.App.4th 573, 590 [plaintiffs? factually?devoid responses to discovery requests may ?show? that one or more elements of their claim ?cannot be established.?] It is not the preper basis for a protective order or grounds to quash the deposition notice. II. TMD CORP. IS ENTITLED TO DISCOVERY TO SUPPORT ITS CLAIM SDOG IS A MERE ALTER EGO OF ITS LAW CORPORATION SDOG also puts form over substance by misconstruing TMD Corp.?s alter ego defense. Although SDOG correctly notes that ?the alter ego doctrine is used to pierce the corporate veil to hold shareholders liable? and ?does not dissolve the entity? (Mot. at p. 5), it fails to appreciate that if SDOG is merely the alter ego of its counsel?s law corporation then it has no standing to bring this 7 OPPOSITION TO MOTION FOR PROTECTIVE ORDER MOTION TO Colantuono, 8r. Whatley. PC 300 s. GRAND AVENUE. surtE 2700 l30i48.7 ANGELES. CA 90071-3137 suit, unless that law corporation was a hotelier in December 2012 when SDOG sued. As to this disputed fact, too, ?discovery is the proper mechanism.? (Not. of Rulings on Dem. and Mot. for Prot. Order, at p. The alter ego doctrine is equitable. (Master v. Bragg Management Co. (1985) 39 Cal.3d 290, 301 [?What the formula comes down to, once shorn of verbiage about control, instrumentality, agency, and corporate entity, is that liability is imposed to reach an equitable see also Hub City Solid Waste Services, Inc. v. City ofComptOn (2010) 186 Cal.App.4th 1114, 1122.) It is the Court?s role to determine whether justice and equity are best achieved by the doctrine?s application. (Shaoxt'ng County Huayue Import Export v. Bhaumik (2011) 191 Cal.App.4th 189, I198 [?The circumstances of an individual case determine whether the court will pierce the corporate veil and regard the corporation as the alter ego of its In California, two conditions must be met before the alter ego doctrine will be invoked. First, there must be such a unity of interest and ownership between the corporation and its equitable owner that the separate personalities of the corporation and the shareholder do not in reality exist. Second, there must be an inequitable result if the acts in question are treated as those of the corporation alone. (Sonora Diamond Carp. v. Superior Court (2000) 83 CaJ.App.4th 523, 538.) TMD Corp.?s discovery is aimed at both prongs of this test is there such ?a unit of interest and ownership between? SDOG and its counsel that equity demands they be treated -as One and the same?2 In addition, discovery may also uncover that SDOG's purpose is to employ its counsel, not to achieve environmental objectives or open government. If so, then SDOG violates IRS regulations of tax-exempt, non?profit corporations bylaws use as the measure of its power. For instance, I 2012 Form 3500 state tax return identi?es no revenue, donations or grants from 2009 to 201 l. (Gladden Decl., Exh. at p. 8.) A valid line of inquiry is therefore whether SDOG received any settlement awards or attorneys fee awards during this time and, if so, where those funds went. 2 ?Factors for the trial court to consider [when applying the alter ego doctrine] include the commingling of funds and assets of the two entities, identical equitable ownership in the two entities, use of the same of?ces and employees, disregard of corporate formalities, identical directors and of?cersmere shell or conduit for the affairs of the other.? (Sonora Diamond Corp, supra, 83 Cal.App.4th at pp. 538?539.) 8 OPPOSITION TO MOTION FOR PROTECTIVE. ORDER MOTION TO QUASH Cola'niuono. Whailey, PC 300 3. GRAND AVENUE. SUITE 2700 130148.? -3!37 LOS ANGELES. CA 9007l Review of this court?s own docket shows how proli?c a litigant SDOG is. How does it manage ?ling fees, much less litigation costs, if it reports zero income of any kind to the State? In short, TMD Corp. has a good faith basis to believe SDOG lacks standing here. (See Better Business Bureau of Washington, D. 0, Inc. v. United States (1945) 326 .S. 279,283 [the presence of a non-exempt purpose, ?if substantial in nature, will destroy the [non?profit] It is entitled to discovery so it may prove that claim. I SDOG claims it has ?provided numerous documents through discovery and even more voluntarily.? (Mot. at p. 5.) It thus concedes the relevance of this information. Regardless, the documents SDOG has produced on MD Corp.?s prior requests are not the measure of its right to discovery. After all, for a small fee, anyone can filc articles of incorporation and tax forms with the state and federal governments reporting not a dime of income or expense. That alone does not prove the existence of a bona ?de non?pro?t public benefit corporation with a purpose relevant to this case. Indeed, ?piercing the corporate veil? is possible precisely because compliance with corporate formalities cannot be permitted to conceal fraudulent behavior. ?The alter ego doctrine prevents individuals or other corporations from misusing the corporate laws-by the device of a sham corporate entity formed for the purpose of committing fraud or other misdeeds.? (Sonora Diamond, supra, 83 Cal.App.4th at p. 538.) Finally, this motion seeks an order barring an ill-de?ned line of questioning without identifying a single topic that relates solely to the ?alter ego? issue which it would place out of bounds for discovery. Again, however, preventing the TMD Corp. from discovering facts by prematurely seeking a legal ruling on a defense to which-it did not timely demur is nowhere permitted by the Code of Civil Procedure or the Rules of C0urt. (TMD Corp.?s Ans. to TAC, 5th Aff. Def. #177] [?Alter Accordingly, while mindful of its duty under this Court?s protective order to respect the privacy rights of menibers, TMD Corp. is entitled to obtain discovery of information relevant to its defenses.3 3 SDOG also argues facts showing SDOG is the alter ego of its counsel are not relevant to any future attorney fee motions. (Mot. at p. 6.) Such arguments are not only premature, but fail to acknowledge the liberal discovery rules and that SDOG bears the burden on this motion a burden it cannot meet. 9 OPPOSITION TO MOTION FOR PROTECTIVE ORDER MOTION TO QUASH Colontuono, 8: Whotley. PC 300 s. GRAND AVENUE. SUETE 2700 130148.? LOS ANGELES. CA 90071-3137 SDOG CANNOT MEET ITS BURDEN TO JUSTIFY A PROTECTIVE ORDER TO BAR AN ILL-DEFINED LINE OF QUESTIONING Here, as previously, SDOG demands a protective order to limit TMD Corp.?s inquiry into its standing. privacy claims which would conveniently bar any inquiry into the nature of the organization or its activities are undercut by the fact that SDOG, not TMD Corp., brought this suit. It is standing, not TMD Corp.?s, that is in issue here. Thus, although members have associational privacy rights when not waived, TMD Corp. also has the right to . terminate litigation brought by an organization without standing. in a case Motion cites, our Supreme Court held: ?When associational activities are directly relevant to the plaintiff?s claim, and disclosure of the plaintiff?s affiliations is essential to the fair resolution of the lawsuit, a trial court may properly compel such disclosure.? (Britt v. Superior Court (1978) 20 Cal.3d 844, 859.) As detailed above, TMD Corp.?s ?compelling need? for such disclosure is its need and this Court?s, which lacks jurisdiction in the case of a plaintiff with standing to determine whether SDOG is a bona fide non?profit organization meaningfully distinct from its counsel. The protective order SDOG seeks is calculated to frustrate this inquiry.4 Moreover, the Court has already determined that TMD Corp. is entitled to the identities of members it relies on for standing and SDOG provided those names (and little else) pursuant to the Court?s protective order. (Order Granting Prot._Order #174]; Prot. Order #181]; 4th DCA Order Denying SDOG Pet. for Writ of Mandate #148] discovery at issue is limited to those members of on whom the organization is relying on to establish The protective order provides for depositions, like that SDOG would thwart here. (Id. at 10-11, 19.) SDOG makes no claim TMD Corp. has not fully complied with that order. Nor can it. SDOG provides no justificatiOn for a ?n?ther protective order to limit inquiry into these issues given that TMD Corp. is already bound not 4 Britt, on which SDOG relies, states a plaintiff waives associational privacy rights to the extent privacy is directly relevant to the claim and essential to the fair resolution of the suit. (20 Ca].3d at p. 859.) Given that SDOG must prove it is an ?interested person? here, the identities of the members SDOG claims provide standing are thus directly relevant to its action as this Court and the Court of Appeal already decided in the last discovery battle in this case. (See Planned Parenthood Golden Gate v. Superior Court (2000) 83 Cal.App.4th 347, 359?360 [State has a ?historically important? interest ?of facilitating the ascertainment of truth in connection with legal proceedings? and in ?making certain that parties disclose relevant information to the fullest extent 10 OPPOSITION TO MOTION FOR PROTECTIVE ORDER MOTION TO QUASH Colantuono. 8t Whatley. PC 300 s. GRAND AVENUE. SUITE 2700 130148.? L05 ANGELES. CA 9007i-3l37 divulge the identities and contact information of members. Given this, what, exactly, would SDOG have this Court protect? Notably, as here, the protective orders in the Save Open Space and Pianned Parenthood cases SDOG cites covered the identities of the members of the organizational plaintiffs a protection this Court has already afforded members. (See Save Open Space Santa Monica Mountains v. Superior Court (2000) 84 Cal.App.4th 235; Piarmed Parenthood Golden Gate v. Superior Court (2000) 83 Cal.App.4th 347.) renewed request fOr a protective order it already has is either completely unfounded or a mere tactic to delay the depositions it would prefer to avoid.5 SDOG attacks only topics Nos. 44 and 45. (Mot, at pp. Topic No. 44 inquires into: ?The membership of San Diegans for Open Government from January 1, 2008 to the date of the deposition.? Topic No. 45 relates to ?[t]he date on which any member of San Diegans for Open Government became a member.? These topics do not seek the identities of SDOG members. They identify membership as a topic of the deposition. As discussed above, whether SDOG has bona ?de, albeit non~voting, members (if that is possible) is relevant to the standing dispute. If TMD Corp. may not discover facts about ?membership? even under the terms of this Court?s protective order, SDOG will be able to continue threatening millions of dollars in tourism marketing revenue without ever demonstrating it has associational standing to maintain this lawsuit. Neither the Civil Discovery Act nor due process allows SDOG to frustrate discovery into the standing which is essential to this Court?s jurisdiction. SDOG claimed in meeteand?confer letters and its Motion that it has already responded to written discovery regarding related issues and therefore a deposition on the topics noticed by TMD Corp. is improper or unnecessary. (Mot, at p. [?The best anyone can do on a substantial part of what TMD Corp. seeks to depose SDOG about is refer MD Corp. to documents that have already been Not so. TMD Corp. is entitled to depose PMQ under oath as to the noticed topics. (Code Civ. Proc., 2025.230 deponent shall designate and produce at the 5 Because TMD Corp. observes the result of these discovery disputes has been extraordinary delay whether or not SDOG intends that delay its motion set for August 29th at 8:30 am. seeks appointment of a referee so those depositions may be productive and ef?cient rather than occasion still further motion practice before this Court. 11 OPPOSITION TO MOTION FOR PROTECTIVE ORDER MOTION TO Colantuono. 8: Whatley, PC 300 S. GRAND AVENUE. SUITE 2700 130148.? LOS ANGELES. CA 90071-3137 deposition [the persons] who are most quali?ed to testify on its behalf" (emphasis In addition, SDOG has no on-going duty to supplement written discovery responses, and TMD Corp. therefore intends to exercise its right to obtain updated information and inquire more deeply into the meager reSponses SDOG has provided to date. (See Guzman v. General Motors Corp. (1984) 154 Cal.App.3d 438, 443 explicit statutory duty to amend or supplement [discovery] answers exists in Finally, argument feigns unfamiliarity with common discovery practice, which begins with written discovery and proceeds to depositions in which written discovery can be clari?ed and used to elicit further information. (Puerto v. Superior Court (2008) 158 Cal.App.4th 1242, 1250 [?Indeed, our discovery system is founded on the understanding-that parties use discovery to obtain names and contact information for possible witnesses as the starting point for further IV. TMD CORP. WILL TAKE DEPOSITION IN SAN DIEGO TMD Corp. is amenable to requests it depose PMQ in San Diego. TMD Corp. intends to use the following location that complies with Code of Civil Procedure section 2025.250, subd. Peterson Court Reporting, Video Litigation, 530 Street, Suite 350, San Diego, CA 91101. CONCLUSION attempt to obtain a second, duplicative protective order and to quash the PMQ deposition is a baseless attempt to frustrate the discovery into standing allegations this Court suggested when it overruled the demurred to the TAC. This Motion must also be denied because it seeks a premature ruling on TMD Corp.?s defenses by barring discovery reasonably calculated to lead to the discovery of admissible evidence. This Court has itself acknowledged that discovery into standing is necessary and that inquiry into its membership under the cloak of the protective order is apprOpriate. effort to re-liti gate the protective order and to re?ise to produce a deponent most knowledgeable on the topics TMD Corp. identi?es is improper and dilatory. TMD Corp. requests this Court deny the Motion and allow the PMQ deposition 12 OPPOSITION TO MOTION FOR PROTECTIVE ORDER ANDIOR MOTION TO QUASH Colantuono. High'smith 8L thtley. PC 300 s. GRAND AVENUE. SUITE 2700 130148.? LOS ANGELES. CA 90071all tOpics to proceed at the San Diego locatiOn identi?ed above under the supervision of a discovery referee as requested in TMD Corp.?s Motion for Discovery Referee to be heard on August 29, 2014. The truth-seeking function of this Court need not be frustrated by the tactics in evidence here. DATED: August 4, 2014 COLANTUONO, HIGHSMITH WHATLEY, PC ?7691342- gm} MICHAEL G. COLANTUONO ?31 JENNIFER L. PANCAKE RYAN THOMAS DUNN Attorneys for Defendant SAN DIEGO TOURISM MARKETING DISTRICT CORPORATION 13 OPPOSITION TO MOTION FOR PROTECNVE ORDER MOTION TO QUASH Colantuono, Highsmith St Whottey. PC 300 s. GRAND AVENUE. SUITE 2700 LOS ANGELES. CA 900H-3l37 PROOF OF SERVICE San Diegansfor Open Government v. City ofSart Diego e! 611., San Diego County SuperiOr Court Case No. I, Ashley A. Lloyd, declare: 1 am employed in the County of Nevada, State of California. I am over the age of 18 and not a party to the within action. My business address is 11364 Pleasant Valley Road, Penn Valley, California 95946. On August 4, 2014, 1 served the document(s) described as DEFENDANT SAN DIEGO TOURISM MARKETING DISTRICT OPPOSITION TO PLAINTIFF SAN DIEGANS FOR OPEN MOTION FOR PROTECTIVE ORDER MOTION TO QUASH REGARDING DEPOSITION OF PERSON MOST QUALIFIED FOR SAN DIEGANS FOR OPEN GOVERNMENT on the interested parties in this action as by placing a true cepy thereof enclosed in a sealed envelope addressed as follows: Cory I. Briggs, Esq. Jan Goldsmith, Esq. City Attorney Mekaela M. Gladden, Esq. . Carmen Brock, Esq., Deputy City Attorney Briggs Law CorporatiOn City Attorney?s Of?ce 99 East Street, Suite 11 1 City of San Diego Upland, CA 91786 - 1200 Third Avenue, Suite 1100 Phone: (619) 949?71 15 San Diego, California 92101 Email: cory@briggslawc0rp.com Phone: (619) 236?6220 Email: mekaela@biiggslawcorp.com Fax: (619) 23 6?721 5 A {torneysfor Plainti? Email: CBrock@sandiego.gov San Diegans for Open Government Email: MariaC@sandiego.gov Attorneys for De?ndam City of San Diego BY E-MAIL OR ELECTRONIC TRANSMISSION: By e?mail or electronic transmission, by causing the documents to be sent to the persons at the e-mail addresses listed on the service list on August 4. 2014 from e-mail address: ALlovd@chwlaw.us. No electronic message or other indication that the transmission was unsuccessful was received within a reasonable time after the transmission. I declare under penalty of peljury under the laws of the State of California that the above is true and correct. Ashley A. Lloch Executed on August 4, 2014, at Penn Valle3falifornia. 1 OPPOSITION TO MOTION FOR PROTECTIVE ORDER MOTION TO QUASH