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`Paul L. Gumina, Esq. (SBN: 160110)
`Law Offices of Paul L. Gumina, P.C.
`560 W. Main St., Suite 205
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`Alhambra, CA 91801
`Telephone: (866) 894-8863
`Facsimile: (866) 894-8867
`Email: paul@westcoastbizlaw.com
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`Attorney for Plaintiff
`BIZLINK TECHNOLOGY, INC.
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`12/5/2024
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`SUPERIOR COURT OF CALIFORNIA
`COUNTY OF SAN MATEO - CIVIL UNLIMITED JURISDICTION
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`BIZLINK TECHNOLOGY, INC. a California
`Corporation,
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` Plaintiff,
`
`
`v.
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`CABAN SYSTEMS, INC., a Delaware
`Corporation; ALEXANDRA RASCH,
`individually, and DOES 1 through 10, inclusive,
`
` Defendants.
`
`
`Case No.: 24-CIV-02714
`
`MEMORANDUM OF POINTS AND
`AUTHORITIES IN SUPPORT OF
`PLAINTIFF’s MOTION FOR ORDER
`DEEMING ADMITTED TRUTH OF FACTS
`AND GENUINENESS OF DOCUMENTS;
`AND FOR MONETARY SANCTIONS
`
`Pursuant to Civ.Proc.Code §§ 2033.280 subds.
`(b) and (c), and 2023.010, et seq.
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`1/14/2025
`HEARING DATE: JANUARY 7, 2025
`TIME: 2:00 PM
`LOCATION: DEPT. 4, RM 4C
`JUDGE: HON. NANCY L. FINEMAN
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`I.
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`PURPOSE OF THIS MOTION
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`This motion seeks an order pursuant to Cal. Code of Civil Procedure Section 2033.280 (b), that the
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`truth of the matters specified in Plaintiff BizLink Technology Inc.’s Requests for Admissions, Set One
`(“RFAs”) and the genuineness of the documents identified in the RFAs, be deemed admitted, because
`Defendant Caban Systems, Inc. has not yet served verified responses under oath to Plaintiff’s timely
`served RFAs; and that Defendant Caban Systems, Inc. and their attorneys of record pay the moving party
`monetary sanctions including the costs of bringing this motion, per Sections 2033.280 (c) and 2023.010,
`et seq.
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`II.
`STATUS OF THE PLEADINGS
`The Complaint for breach of written contract and common counts was filed by Plaintiff BizLink
`Technology, Inc. (“BizLink”) against a Burlingame-based company, Defendant Caban Systems, Inc.
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`(“Caban”) on May 6, 2024. The lawsuit arises out of Defendant Caban’s alleged breach of a series of
`written contracts between BizLink and Caban, for Caban to purchase BizLink’s components (cables and
`connectors) that BizLink specially manufactured for Caban, made to Caban’s specifications, for use in
`Caban’s electric battery systems sold to its customers. The Complaint seeks monetary damages in the
`sum of $419,118.58, plus pre-judgment interest on that sum on and after the date of Caban’s alleged
`breach, May 15, 2022.
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`Caban first appeared in this action by joining in a written stipulation, filed in this Court on
`September 20, 2024, to extend Caban’s time to file its responsive pleading until September 20, 2024.
`During September through November, counsel for the parties engaged in settlement discussions that were
`ultimately unsuccessful, and BizLink agreed to extend Caban’s time to file its responsive pleading in this
`matter until December 10, 2024.
`However, in November, after settlement talks ended, BizLink learned that Caban and its current
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`Chief Executive Officer, Alexandra Rasch, her father, Christian Rasch, and two of her siblings, had been
`sued in the case, “Multiflora International Ltd. v. Caban Systems, Inc., U.S. District Court, N.D. – Cal.,
`Case No. 4-24-CV-04455-YGR (“the Multiflora Action”). The Complaint alleged that Defendant
`Christian Rasch was an owner and officer of Plaintiff Multiflora, and that he secretly gained control of
`Multiflora’s financial accounts without authority from its co-owners. The complaint further alleged,
`among other things, that while Alexandra Rasch was Caban’s CEO, she and her father secretly
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`misappropriated $250,000 of funds from Multiflora that were paid to Caban in April 2018, allegedly to
`purchase 855,511 shares of Caban’s Series A preferred stock, in the name of Multiflora, as Caban’s initial
`seed funding. The Multiflora complaint further alleges that Defendant Alexandra Rasch and Caban’s
`attorneys (not the Norton Law Firm) then caused Multiflora’s preferred shares to be fraudulently
`transferred and conveyed to a Panamanian corporation based in Guatemala that she and her siblings
`owned and controlled, Gaia Investment Holdings Corp. (“Gaia”), without Gaia having paid any
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`consideration to Caban or to Multiflora for this transfer. These allegations of misappropriation of
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`Multiflora’s funds by Caban and its CEO, Alexandra Rasch, and fraudulent transfer of Caban shares to
`Gaia, were described and supported by numerous internal documents of Caban and Caban’s attorneys
`attached as exhibits to the Multiflora complaint.
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`Based on the credible allegations and evidence contained in the Multiflora Action, on November
`6, 2024, Plaintiff BizLink filed its First Amended Verified Complaint (“FAC”) herein, naming Caban’s
`CEO, Alexandra Rasch, as an individual defendant based on allegations of alter ego, conspiracy, and
`fraudulent transfer of Defendant Caban’s assets to defraud its creditors, including Plaintiff BizLink. The
`FAC has been served on Defendant Caban’s counsel, and Caban’s responsive pleading is due on
`December 10, 2024. In November 2024, Plaintiff’s counsel attempted to personally serve Defendant
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`Alexandra Rasch with the FAC at Caban’s headquarters in Burlingame, but the process server reported
`that Caban’s offices had been vacated and the space is up for lease. Caban’s website announced that
`Caban had moved its offices to Miami, Florida and Richardson, Texas. Plaintiff’s counsel has sent the
`FAC out for service on Defendant Alexandra Rasch at her home in Miami.
`III.
`FACTS CONCERNING DEFENDANT CABAN’S UNVERIFIED RESPONSES TO
`PLAINTIFF’S REQUESTS FOR ADMISSIONS, SET ONE
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`Plaintiff served written discovery, including the subject Requests for Admission, Set One
`(“RFAs”), to Defendant’s counsel by mail on June 13, 2024. (Dec’l of Paul L. Gumina in Support of
`Motion to Deem RFAs Admitted (“Gumina Dec.”), ¶ 1 and Exh. A)
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`At the request of Defendant’s counsel, and while settlement discussions were taking place,
`Defendant’s time to respond to Plaintiff’s written discovery, including Plaintiff’s RFAs, was extended
`seven times, until the final agreed upon due date was November 14, 2024. (Gumina Dec., ¶ 2 and Exh. B
`[correspondence between counsel]
`Defendant’s responses to Plaintiff’s RFA, Set One, were served on November 14, 2024. (Gumina
`Dec., ¶ 3 and Exh. C [Defendant’s Responses to Plaintiff’s RFAs Set One served 11/14/24]) These
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`responses contained both objections and substantive responses, but were not signed by Defendant’s
`attorney, nor were they verified by an officer of Defendant.
`Defendant served a second document, also entitled, “Request for Admissions Responses” on
`November 19, 2024. (Gumina Dec., ¶ 4 and Exh. D [Defendant’s Responses to Plaintiff’s RFAs Set One
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`served 11/19/24]) These contained the same objections and substantive responses, verbatim, that
`Defendant’s counsel served previously. The responses are signed by opposing counsel using her typed
`signature; but the blank verification form that accompanied the responses was not signed by anyone. The
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`form of verification was also defective, as it failed to contain a statement that it was being signed by an
`officer of the company, but instead, the blank signature line for a person named “Violeta Rasch,” who was
`incorrectly identified in the blank verification as “a party to the action,” which she is not.
`As of the date this Motion is filed, Plaintiff’s counsel has received only Defendant Caban’s
`unverified responses to Plaintiff’s RFA Set One.
`IV.
`LEGAL ARGUMENT
`1. This Motion Is Timely Filed, And Does Not Require Any Meet And Confer Process, Because
`Both Of Defendant’s Responses To Plaintiff’s RFA Set One Were Not Verified.
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`Section 2033.280 (b) provides that when a party fails to respond to timely served RFAs, the
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`propounding party may file a motion for an order to deem the RFAs admitted without first having to meet
`and confer with the responding party to attempt to resolve the non-response issue. There is no time limit
`on bringing this motion because an unverified response is tantamount to no response at all.
`(Civ.Proc.Code § 2033.210 (a) [requiring RFA responses to be verified under oath]) In Appleton v.
`Superior Court (1988) 206 Cal.App.3d 632, 633 – 634, the Court addressed a motion to deem unverified
`RFA responses admitted, and for monetary sanctions. The Court granted the motion to deem the RFAs
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`admitted, holding that, "The responses were provided in this case but they were not verified. Unsworn
`responses are tantamount to no responses at all.” (Id. at p. 635 – 636; citing, Zorro Inv. Co. v. Great
`Pacific Securities Corp. (1977) 69 Cal.App.3d 907, 914 [applying former Civ.Proc.Code § 2033 (a)]; See
`Cal. Prac Guide: Civil Procedure Before Trial (TRG 2022) 8:1102)
`The case, Golf & Tennis Pro Shop, Inc. v. Superior Court (2022) 84 Cal.App.5th 127, 134 – 135,
`addressed unverified interrogatory responses in the context of whether a motion to compel further
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`responses was timely filed. The Court answered the question whether the 45-day period to file a motion
`to compel further responses begins to run upon service of a combination of unverified responses and
`objections if the motion challenges only the objections, holding, “the most reasonable construction of the
`applicable statutes seems to us to require verification of such a hybrid of responses and objections before
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`the time period begins to run.” The Court reasoned: “In this case, the language is clear that the clock on a
`motion to compel begins to run once ‘verified responses’ or ‘supplemental verified responses’ are served.
`( § 2030.300, subd. (c)1) Under the canon, expressio unius est exclusio alterius, the insertion of the word
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`‘verified’ before the word ‘responses’ necessarily requires us to exclude from the provision what it does
`not mention – un verified responses…. [citation omitted] Thus, if responses are not verified, the clock
`cannot begin to run.” (Golf & Tennis Pro Shop, Inc., supra, 84 Cal.App.5th at p. 135)”
`The Court then held:
` “As both real parties in interest and the trial court noted, objections need not be verified under
`oath. Pursuant to section 2030.250, subdivision (a), ‘[t]he party to whom ... interrogatories are
`directed shall sign the response under oath unless the response contains only objections.’ (Ibid. ,
`italics added. 2) Again, we can ascertain from the inclusion of the qualifying word ‘only’ before
`the word ‘objections’ that a response which consists of both objections and responses must be
`verified, the only exception to this requirement is a response that contains nothing but objections.”
`(Golf & Tennis Pro Shop, Inc., supra, 84 Cal.App.5th at pp. 135 - 136)
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`For the reasons stated above, this motion is timely and has been properly brought before the Court.
`2. This Motion To Deem Plaintiff’s RFP Set One Admitted Must Be Granted, Because
`Defendant Caban Has Failed To Serve Timely, Verified Responses Before This Motion Was
`Filed.
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`Section 2033.280 provides that the initial penalty for failing to timely respond to requests for
`admission is a 'waive[r of] any objection to the requests, including one based on privilege or on the
`protection for work product under Chapter 4 (commencing with Section 2018.010).' (§ 2033.280, subd.
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`(a)) "Once the propounding party files a motion for a deemed admitted order [pursuant to section
`2033.280, subdivision (b)], the nonresponding party then faces an additional penalty - mandatory
`monetary sanctions. (See [§ 2033.280(c)]) If the responding party does not respond to the RFAs before
`the hearing on the motion, the trial court must grant the motion and order the RFAs deemed admitted.
`(Code Civ. Proc. § 2033.280, subd. (c); St. Mary v. Superior Court (2014) 223 Cal.App.4th 762, 776)
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`1 Section 2033.290 (c), concerning motions to compel further RFA responses, contains the same operative language, as
`follows: “(c) Unless notice of this motion is given within 45 days of the service of the verified response, or any supplemental
`verified response, or any specific later date to which the requesting party and the responding party have agreed in writing,
`the requesting party waives any right to compel further response to the requests for admission.”
`2 Section 2033.240 (a), concerning responses to Requests for Admissions, contains the same operative language, as follows:
`“(a) The party to whom the requests for admission are directed shall sign the response under oath, unless the response
`contains only objections.
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`A party may request that another litigant “admit the genuineness of specified documents, or the
`truth of specified matters of fact, opinion relating to fact, or application of law to fact. A request for
`admission may relate to a matter that is in controversy between the parties.” (§ 2033.010.) Unless the
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`responding party moves promptly for a protective order under section 2033.080, he or she, within 30 days
`of service of the RFAs (§ 2033.250), shall respond in writing under oath and separately to each RFA (§
`2033.210, subd. (a)) and “shall answer the substance of the requested admission, or set forth an objection
`to the particular request” (Id. subd. (b)). Each response to the RFAs must be “complete and
`straightforward.” (§ 2033.220 (a).) The responding party shall admit as much of the request that is true,
`“either as expressed in the request itself or as reasonably and clearly qualified by the responding party”
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`(Id.. subd. (b)(1)); “[d]eny so much of the matter involved in the request as is untrue” ( id. subd. (b)(2));
`or “[s]pecify so much of the matter involved in the request as to the truth of which the responding party
`lacks sufficient information or knowledge” ( Id. subd. (b)(3)).
`In this case, Plaintiff Caban’s attorney responded to Plaintiff’s RFAs with both objections and
`responses, but no officer or employee of Plaintiff Caban, nor any other person, verified the response.
`(Code Civ. Proc., § 2033.240, subd. (a) ['The party to whom the requests for admission are directed shall
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`sign the response under oath, unless the response contains only objections.'].)" As noted above,
`responses to RFAs, other than those containing only objections, must be signed by the responding party
`under oath. (Civ.Proc.Code § 2033.240, subd. (a).) The statute provides that, “If that party is a public or
`private corporation, or a partnership, association, or governmental agency, one of its officers or agents
`shall sign the response under oath on behalf of that party.” (§ 2033.260, subd. (b)) (Melendrez v. Superior
`Court (2013) 215 Cal.App.4th 1343, 1351) Here, Defendant Caban served two sets of responses to
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`Plaintiff’s RFAs, Set One, neither of which were verified by an officer or agent of Defendant Caban.
`Therefore, Defendant Caban has not served any timely responses to Plaintiff’s RFAs, Set One as required
`under Section 2033.220.
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`In conclusion, unless Defendant Caban serves verified responses to Plaintiff’s RFAs, Set One in
`“substantial compliance” with the requirements of Section 2033.220, the Court must grant Plaintiff’s
`Motion to Deem the Plaintiff’s RFAs Set One admitted.
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`//
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`3. The Court is required to order mandatory monetary sanctions for Plaintiff’s costs and fees
`in bringing this motion, even if Defendant serves substantially compliant responses to the
`RFAs before the date of the hearing on this motion.
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`Section 2033.280 (c) expressly requires as follows: “…. It is mandatory that the court impose a monetary
`sanction under Chapter 7 (commencing with Section 2023.010) on the party or attorney, or both, whose
`failure to serve a timely response to requests for admission necessitated this motion. “It is mandatory that
`the court impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) on the party
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`or attorney, or both, whose failure to serve a timely response to requests for admission necessitated [the]
`motion.” CCP 2033.280 (c).
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`This motion was necessary because Defendant’s counsel has failed to serve Defendant Caban’s
`verified responses to Plaintiff’s RFAs, Set One, many weeks after having promised to serve verified
`responses. Section 2033.280 (c) requires the Court to award sanctions against Defendant Caban and its
`counsel for Plaintiff’s costs and expenses in bringing this motion. According to the declaration by
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`Plaintiff’s counsel, Mr. Gumina, he expended 4.5 hours in preparing and filing this motion. His hourly
`rate is $350.00. Plaintiff therefore incurred $1,575.00 in professional fees for preparing and filing this
`motion, plus incurred costs of $80.00 for filing fees ($60.00 Court’s motion fees plus $20.00 service fee
`to be charged by OneLegal Services. (Gumina Dec., ¶ 4) Plaintiff therefore seeks mandatory monetary
`sanctions to be awarded against Defendant Caban and its attorneys, The Norton Law Firm, in the sum of
`$1,655.00.
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`V.
`CONCLUSION
`This Court should order that Plaintiff’s Requests for Admissions, Set One, Item Nos. 1 to 53, are
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`deemed, “Admitted.” The Court must also award Plaintiff mandatory monetary sanctions in the sum of
`$1,655.00, even if Defendant Caban ultimately serves “substantially compliant” responses to Plaintiffs
`RFAs prior to the hearing on this matter.
`Dated: December 5, 2024
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`LAW OFFICES OF PAUL L. GUMINA, P.C.
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`Paul L. Gumina
`Attorney for Plaintiff
`BIZLINK TECHNOLOGY, INC.
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`PROOF OF SERVICE
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`STATE OF CALIFORNIA, COUNTY OF LOS ANGELES) ss.
`I am a citizen of the United States and employed in the County of Los Angeles, State of California; I am
`over the age of 18 years and not a party to the within-entitled action; my business address is 560 W. Main St. Suite
`205, Alhambra, CA 91801. On December 5, 2024, I served the foregoing documents, described as follows:
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`MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF’s MOTION
`FOR ORDER DEEMING ADMITTED TRUTH OF FACTS AND GENUINENESS OF
`DOCUMENTS; AND FOR MONETARY SANCTIONS
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`on the interested parties to said action by the following means:
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`X
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`(By Mail)
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`X
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`(By Email)
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`By placing a true copy thereof, enclosed in a sealed envelope with postage thereon fully
`prepaid, for collection and mailing on that date following ordinary business practices, in
`the United States Mail at 560 W. Main St., Suite 205, Alhambra, California, addressed as
`shown below. I am readily familiar with this business's practice for collection and
`processing of correspondence for mailing with the U.S. Postal Service, and in the ordinary
`course of business correspondence would be deposited with the U.S. Postal Service the
`same day it was placed for collection and processing. (Via Certified U.S. Mail)
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`The above-referenced document was transmitted via electronic transmission to the persons
`at the electronic addresses indicated in the service list below.
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` I declare under penalty of perjury that the foregoing is true and correct. Executed on December 5,
`2024, in Alhambra, California.
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`NAME AND ADDRESS OF EACH PERSON SERVED:
`Celine G. Purcell
`The Norton Law Firm PC
`299 Third Street, Suite 200
`Oakland, California 94607
`Email: cpurcell@nortonlaw.com
`Courtesy Copy via Email Only
`Counsel for Defendant
`Caban Systems, Inc.
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