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Defendants

1 Barry E. Weber, #256530

2 Charlotte P. Waldo #224512

3 Law Offices of Barry Weber 264 Clovis Ave., Ste. 108

4 Clovis, CA 93612

5 Telephone: (559) 438-1716 Facsimile: (559) 222-9183

6 Email: barry@barryweberlaw.com

8 Attorney for Plaintiff, CHRISTIE RUSS

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Date: April 13, 2011 Time: 3:30 p.m, Dept: 402

Judge: Honorable Judge Hamilton

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SUPERIOR COURT OF THE STATE OF CALIFORNIA

FOR THE COUNTY OF FRESNO, UNLIMITED CIVIL

~ Case No.: 10CECG02145

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14 CHRISTIE RUSS,

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Plaintiff,

vs.

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CHRISTIE RUSS, Plaintiff,

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vs.

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BODY CHOICE, INC. a corporation;

22 CHARLES BARKIE, an individual; and DOES 1 to 20,

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NOTICE Of MOTION AND MOTION FOR AN ORDER COMPELLING FURTHER RESPONSES OF BODY CHOICE, INC. TO REQUEST FOR PRODUCTION OF DOCUMENTS SET ONE; DECLARATION OF PLAINTIFF'S ATTORNEY BARRY WEBER IN FAVOR OF MOTION; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION; SEPARATE STATEMENT OF ISSUES IN DISUPTE

I. NOTICE OF MOTION AND MOTION

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TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:

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CHRISorIE RUSS I MOorION oro COMPEL FURTHER RESPONSES BODY CHOICE I me,

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PLEASE TAKE NOTICE that at abovementioned date and, Plaintiff Christie Russ

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will, and hereby does, move for an order pursuant to Sections 2023.010-2023.040, and 2031.30

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and 2031.310 of the California Code of Civil Procedure compelling BODY CHOICE, INC. t

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serve verified further responses, without objections, to Christie Russ's First Set of Request fo

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Production of Documents Number 34 through 44 inclusive, and an order imposing monet

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sanctions in the amount of $980 in favor of Christie Russ and against BODY CHOICE INC. fo

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the reasonable attorney's fees and costs incurred by Christie Russ in bringing this motion.

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This motion is based on this notice of motion and motion, the Declaration of Attorne

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Barry Weber in support thereof, Christie Russ's Memorandum of Points and Authorities i

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support thereof, Christie Russ's Separate Statement of Items in Dispute in support thereof, th

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Exhibits attached to Mr. Weber's declaration, the pleadings and other papers on file in this cas

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and any other information that may be offered at the time of the hearing.

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II. MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR AN ORDER COMPELLING FURTHER RESPONSES TO CHRISTIE RUSS'S REQUEST FOR PRODUCTION OF DOCUMENTS, SET 1

A. INTRODUCTION

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Plaintiff Christie Russ respectfully requests an order compelling verified further

responses to her Request for Production of Documents-Set One, Numbers 34 through 44

inclusive. Ms. Russ also seeks an order imposing monetary sanctions in favor of Christie Russ

and against BODY CHOICE, INC.

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Russ is entitled to the relief requested for several reasons. BODY CHOICE, INC.

28 has failed to deliver discovery requests after an attempt to meet and confer about their lack of

CHRISTIE RUSS t MOTION TO COMPEL FURTHER l(ESPONSES BODY CHOICE I INC.

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17 COurt against Defendants challenging Defendants' failure to pay wages pursuant to the . 18 California Labor Code.

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adequate response to Plaintiffs requests. BODY CHOICE, INC.'s responses to the requests of discovery propounded by Russ contain boilerplate objections which are unfounded and lack any substantive merit. BODY CHOICE, INC.'s main objection, as articulated by their counsel James 1. Arendt, Esq. is that Plaintiff is not entitled to prove or disprove her alter ego allegations against BODY CHOICE, INC. Defendant is denying a reasonable discovery request made in good faith.

3. The Court should award monetary sanctions in favor of Christie Russ and against

BODY CHOICE, INC. in connection with this motion because (1) BODY CHOICE, INC.'s objections lack substantive merit; and (2) BODY CHOICE, INC.'s responses lacked any kind of good faith effort. An award of sanctions against BODY CHOICE, INC. is not only warranted, it is necessary to curb BODY CHOICE, INC. and her attorney of abuse of the Discovery Act.

B.FACTUALANDPROCEDURALBACKGROUND

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On June 21, 2010, Plaintiff filed a complaint with the Fresno County Superior

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Plaintiff s causes of action including failure to pay wages, failure to provide rest

and meal breaks, failure to pay upon termination, and violation of Business and Prof. Code §17200.

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On or about October 18,2010, Plaintiffs reasonably propounded Production of

Documents Set One which included Requests 34 through 44 inclusive that seek information relevant to the allegation that BODY CHOICE, INC. was and is the alter ego of Charles Barkie, that there was such a commingling of assets that the separate personalities of Charles Barkie and BODY CHOICE, INC. do not in fact exist.

CHRISTIE RUSS, MOTION TO COMPEL FURTHER RESPONSES BODY CHOICE, INC.

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CHRISTIE RUSS, MOTION TO COMPEL FURTHER RESPONSES BODY CHOICE, INC.

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c. REQUESTS FOR PRODUCTION ARE REASONABLE AND ARE NECESSARY IN ORDER TO PROVE OR DISPROVE ALTER EGO ALLEGATIONS

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Defendant BODY CHOICE, f'1C. argues that all information related to the issue

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of alter-ego is not relevant to the case.

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To prove alter ego, a plaintiff must show that two conditions are met: First. there

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must be such a unity of interest and ownership between the entity and its equitable owner that the

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separate personalities of the entity and the owner do not in reality exist. Second, there must be an

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inequitable result if the acts in question are treated as those of the entity alone. See Sonora 83

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CaL App. 4th at 538; Hoffman-La Roche v. Superior Court (2005) 130 Cal. App. 4th 782, 796.

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Here, Plaintiff alleges that there was such a "unity of interest among Defendants

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that the fiction of the separate existence of Defendants as entities distinct from each other would

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permit an abuse of the privilege of limited liability accorded Charles Barkie, [and] would

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promote injustice and sanction fraud. Plaintiff further alleges that BODY CHOICE, INC. is

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merely "the shell and conduit for the personal affairs" of defendant Charles Barkie and that

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Charles Barkie disregarded the separate status of the corporate entity by commingling funds and

used entity assets for his personal benefit. If BODY CHOICE, INC. is the alter ego of Charles

Barkie, then Charles Barkie may be personally liable for the breach of contract and other causes

of action asserted against BODY CHOICE, INC.

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In order to prevent injustice, a court may disregard the entity and treat its acts as i

they were done by the individual. See Shapoffv. Schull (1990) 222 Cal App, 3d 1457, 1466,

1469. In order to disregard the entity, plaintiff must prove at trial that ''the [entity] is not only

influenced and governed by that person, but that there is such a unity of interest and ownership

that the individually, or separateness, of the said person and [ entity] has ceased; second, that the

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CHRISTIE RUSS, MOTION TO COMPEL FURTHER RESPONSES BODY CHOICE, INC.

facts are such that an adherence to the fiction of the separate e.dstence of the [entity] would,

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under the particular circumstances, sanction a fraud or promote injustice." Minifie v. Rowley

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(1921) 187 C. 481, 487, 202 P. 673.

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D. RUSS MADE A REASONABLE AND GOOD FAITH EFFORT TO INFORMALLY RESOLVE THE ISSUES IN THIS MOTION.

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As discussed in the Declaration of Barry Weber, Plaintiffs counsel made a good

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faith attempt to resolve this issue and was rebuffed in that attempt.

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12. Plaintiff served her Request for Production of Documents, Set 1 on defendant

BODY CHOICE, INC. on or about October 18,2010.

13. On or about December 31,2010, Defendant BODY CHOICE, INC. sent its

responses to Request for Production of Documents Set One, having objected to many relevant requests, including requests 34 through 44 inclusive.

14. On January 25, 2011, Mr. Weber sent a Meet and Confer letter requesting that

Defendant BODY CHOICE, INC. provide further answers to discovery requests 34 through 44 inclusive. (Exhibit 1)

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Mr. Arendt has made no attempt to provide the additional responses to requests 34

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through 44 inclusive as asked for in the Meet and Confer letter, nor did he even address the

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issues raised therein.

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Plaintiff filed this motion to compel.

E. THE COURT SHOULD ORDER THE BODY CHOICE, INC. TO SERVE VERIFIED FURTHER RESPONSES, WITHOUT OBJECTIONS, TO CERTAIN DISCOVERY REQUESTS BECAUSE THE BODY CHOICE, INC. OBJECTIONS ARE UNFOUNDED AND THEIR RESPONSES ARE INCOMPLETE AND EVASIVE.

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BODY CHOICE, INC.'s objections are unfounded boilerplate objections for

which sanctions may be awarded (see Standon Co., Inc. v. Superior Court [KimJ, 225 Cal. App.

3d 898, 903 [1990]), and the Court is authorized to overrule them (See, The State of California I.

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CHRISTIE RUSS I MOTION TO COMPEL FURTHER RESPONSES BODY CHOICE I INC.

Superior Court rveta Company], 12 Cal. 3d 237,257 [1974] [sustaining the trial court's order

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overruling responding party's objections to certain interrogatories]).

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18. Also, the objections to these request on the grounds that the requests are not

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relevant is improper. Each request specifies specific categories of information that are clearly

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relevant Plaintiff's claims.

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F. THE COURT SHOULD AWARD MONETARY SANCTIONS IN FAVOR OF RUSS

9 AND AGAINST THE BODY CHOICE, INC. IN CONNECTION WITH TIDS MOTION.

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California Code of Civil Procedure Section 2031.310 provides. in part, that the

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Court shall impose a monetary sanction under Sections 2023.010-2023.040 against any party that

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unsuccessfully opposes a motion to compel, unless it finds that the party acted with substantial

justification or that other circumstances make the imposition of the sanction unjust. Sanctions

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may be awarded for unfounded boilerplate objections. Standon, 225 Cal. App. 3d at 903; C.C.P.

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§ 2023.0 1 O( e). The misuse of the discovery process justifying a mandatory award of sanctions does not need to be willful. Ghanooni v. Super Shuttle of Los Angeles et al., 20 Cal App. 4th 256,

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260 (1993).

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As discussed above, BODY CHOICE, INC.'S objections and response to Russ's

Request for Production of Documents 34-44 inclusive lack substantial justification, and represen

a blatant misuse ofthe discovery process. BODY CHOICE, INC. has no substantial justification

for interposing the objections contained in the Request for Production of Documents which are

the subject of this Motion. Ms. Russ respectfully requests an award of $980, which reflects the

reasonable attorney's fees and costs incurred by Christie Russ in bringing this motion.

G. CO~CLUSION

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fees and costs incurred by Christie Russ in the bringing this motion.

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For the foregoing reasons, Christie Russ respectfully requests that this Court enter

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an order (1) compelling BODY CHOICE, INC. to serve a verified further response, without

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objections, to request numbers 34 through 44 inclusive in Christie Russ's First Set of Request for

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Production of Documents, and (2) imposing monetary sanctions in favor of Christie Russ and

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against BODY CHOICE, INC. in the amount of $980, which reflects the reasonable attorney's

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9 Dated: February 28, 2011

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III. DECLARATION OF ATTORNEY BARRY WEBER IN SUPPORT 0 MOTION TO COMPEL:

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I, Barry Weber, hereby declare and state:

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I am an attorney at law duly licensed to practice before all courts in the State of

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California. I am a counsel of record for Plaintiff Christie Russ. I have personal knowledge of the following facts, and if called to testify, I could and would competently testify thereto.

2.

Plaintiff served her Request for Production of Documents Set One on Defendant

BODY CHOICE, INC. on or about October] 8,2010. On or about December 31, 2010, BODY CHOICE, INC. 'S attorney, James J. Arendt, Esq. served BODY CHOICE, INC. 'S responses to Plaintiff's discovery requests.

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Deeming Defendant's responses inadequate, on January 25,2011 I sent to Mr.

Arendt, on behalf of Defendant BODY CHOICE, INC., a Meet and Confer letter detailing those deficiencies and requesting their cure. (See Exhibit 1)

CHRISTIE RUSS, MOTION TO COMPEL FURTHER RESPONSES BODY CHOICE, INC.

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CHRISTIE RUSS, MOTION TO COMPEL FURTHER R<'.SPONSES BODY CHOICE, INC.

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I filed this Motion to Compel on behalf of Plaintiff Christie Russ.

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I declare under penalty of perjury that the foregoing is true and correct and that this declaration was executed on February 28,2011, at Fresno, California.

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Dated: February 28, 2011

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IV. STATEMENT OF ITEMS IN DISPUTE IN SUPPORT OF DEFENDANTS' MOTION FOR AN ORDER COMPELLING FURTHER RESPONSE TO DEFENDANTS' REQUEST FOR PRODUCTION OF DOCUMENTS -SET ONE, AND COMPELLING COMPLIANCE WITH THAT FURTHER RESPONSE.

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Plaintiff hereby respectfully submits pursuant to California Rules of Court, Rule 335(a)

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this statement of items in dispute in support of Plaintiffs motion for an order compelling further

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response to Plaintiff s Requests for Production of Documents propounded upon Defendants and

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compelling compliance with that further response. Included in that production were request

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numbers 33 through 44 inclusive, which ask for the details of financial transactions and

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interactions between Charles Barkie and BODY CHOICE, INC. Defendant BODY CHOICE,

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INC. answers all of the requests as seeking documents that are not relevant to this action nor

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reasonably calculated to lead to the discovery of admissible evidence.

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Why Further Production Should Be Ordered

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These requests seek documents that are relevant to this action and reasonably calculated

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to lead to the discovery of admissible evidence. "Transactions" is intended to mean any financi

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interaction between Charles Barkie and BODY CHOICE, INC., including but not limited to

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checks written, property transferred, contributions of cash and other property, loans, amounts

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owed and owing, etc. These requests are relevant to determine whether there were improper

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commingling of the assets between Charles Barkie and BODY CHOICE. INC .. Accordingly,

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defendants may not withhold responsive information.

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Dated: February 28,2011 Law Offices of Barry Weber

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BARR

aw·CPA

264 CLOVIS AVE., STE. 108 CLOVIS, CALIFORNIA 93612

January 25,2011

VIA FACSIMILE AND FIRST CLASS MAIL James J. Arendt, Esq.

Weakley, Arendt & McGuire, LLP 1630 E. Shaw Ave, Suite 176 Fresno, CA 93710

221-5262 fax

re: Russ v. Body Choice-discovery meet and confer

Dear Mr. Arendt,

Please consider this letter as our meet and confer regarding your responses to our propounded discovery on both Mr. Barkie and Body Choice Inc. In your responses to our Request for Production of Documents, Set One, you object and fail to provide information to requests 34-44 inclusive. Your main grounds for objection is relevancy. However, our complaint pleads that Body Choice Inc. is the alter-ego of Mr. Barkie. These questions are directly relevant to the alter-ego issue. Your failure to provide us with this information denies us

the ability to discover essential information necessary to prove our case. .

To prove alter ego, a plaintiff must show that two conditions are met: First, there must be such a unity of interest and ownership between the entity and its equitable owner that the separate personalities of the entity and the owner do not in reality exist. Second, there must be an inequitable result if the acts in question are treated as those of the entity alone. See Sonora 83 Cal. App. 4th at 538; Hoffman-La Roche v. Superior Court, (2005) 130 Cal. App. 4th 782, 796.

In order to prevent injustice, a court may disregard the entity and treat its acts as if they were done by the individual. See Shapoffv. Schull (1990) 222 Cal App. 3d 1457, 1466, 1469. In order to disregard the entity, plaintiff must prove at trial that "the [entity] is not only influenced and governed by that person, but that there is such a unity of interest and ownership that the individually, or separateness, of the said person and [entity] has ceased; second, that the facts are such that an adherence to the fiction of the separate existence of the [entity] would, under the particular circumstances, sanction a fraud or promote injustice." Minifie v. Rowley (1921) 187

C. 481, 487, 202 P. 673.

You also interpose several boilerplate objections to these, as well as all of our discovery question, which are largely without merit. However, we limit our request and only ask that you specifically provide the information sought in our Requests 34-44 by serving same on our office

TEL: (559) 438-1716

FAX (559) 222-9183

EMAIL: BARRY@BARRYWEBERLAW.COM

February 28,2011 Page 2 of2

no later than February 5, 2011. I am willing to extend this date until February 15th, if you extend our time to file our Motion to Compel until February 28, 2011.

Thank you,

Barry E. Weber, Attorney at Law

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1 Barry E. Weber, Attorney at Law #256530 264 Clovis Ave., Ste, 108

2 Clovis. CA 93612

Telephone: (559) 438-1716

3 Facsimile: (559) 222-9183

Email: barry@barryweberlaw.com 4

5 Attorney for Plaintiff, CHRISTIE RUSS

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SUPERIOR COURT OF THE STATE OF CALIFORNIA

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FOR THE COUNTY OF FRESNO, UNLIMITED CIVIL

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~ Case No.: 10CECG02145

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CHRISTIE RUSS, Plaintiff,

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vs.

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16 BODY CHOICE, INC. a corporation; CHARLES BARKIE, an individual; and 17 DOES 1 to 20,

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Defendants

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STATE OF CALIFORNIA, COUNTY OF FRESNO

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A am employed in the County of Fresno, State of California, I am over the age of eighteen years and not a party to the within action. My business address is 264 Clovis Ave., Ste, 108 Fresno CA 93612. On the date below, I served by facsimile the following documents:

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NOTICE OF MOTION AND MOTION FOR AN ORDER COMPELLING FURTHER RESPONSES OF BODY CHOICE, me, TO REQUEST FOR PRODUCTION OF 'DOCUMENTS SET ONE; DECLARATION OF PLAINTIFF'S ATTORNEY BARRY WEBERl IN FAVOR OF MOTION; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION; SEPARATE STATEMENT OF ISSUES IN DISUPTE

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PROOF OF SERVICE

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I served the above documents on the interested parties by fascimile to:

James 1. Arendt, Esq.

Weakley, Arendt & McGuire, LLP 1630 E. Shaw Ave, Suite 176 Fresno, CA 93710

221. -5262 fax

I declare under penalty of perjury that the foregoing is true and correct to the best of my

9 knowledge and belief. This declaration was executed 212812011 at Clovis California.

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Barry E. Weber

PROOF OF SERVICE