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Edward McCutchan (SBN 119376)
SUNDERLAND | McCUTCHAN, LLP.
1083 Vine Street, Suite 907
Healdsburg, California 95448
Telephone: (707) 433-0377
Facsimile: (707) 433-0379
Attorneys for Defendants
DALE DAVIS SUED AS DOE 4
JIM NORD SUED AS DOE 5
JACINDA DUVAL SUED AS DOE 7
BILL HING SUED AS DOE 8
LENORA VERNE FUNG SUED AS DOE 9
JUSTIN POENG SUED AS DOE 11
MATTHEW ZDANEK SUED AS DOE 16
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF SONOMA
RICHARD ABEL, an individual, CASE NO. SCV-263456
MEMORANDUM OF POINTS AND
AUTHORITIES IN OPPOSITION TO
PLAINTIFF’S MOTION FOR A
PROTECTIVE ORDER, OR IN THE
ALTERNATIVE, TO QUASH THE
NOTICE OF HIS DEPOSITION BY
THE DOE DEFENDANTS AND FOR
MONETARY SANCTIONS BY THE
DOE DEFENDANTS (CCP SECTION
2025.410 et seq.)
Plaintiff,
vs.
B. EDWARD McCUTCHAN, JR. an
individual; SUNDERLAND | McCUTCHAN,
LLP, a general partnership; and DOES 1
through 100, inclusive,
Date: June 29, 2022
Time: 3:00 p.m.
Courtroom: 17
Defendants.
EEE ee
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INTRODUCTION
Plaintiff, Richard Abel (hereinafter “Abel”) who is representing himself in propria
persona has a long history of filing repetitive discovery motions and failing to abide by court
orders in this action and in Liebling v. Goodrich, Sonoma County Superior Court Case No. SCV-
245738.
MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO PLAINTIFF’S MOTION FOR A PROTECTIVE ORDER, OR IN
THE ALTERNATIVE, TO QUASH THE NOTICE OF HIS DEPOSITION BY THE DOE DEFENDANTS AND FOR MONETARY
SANCTIONS BY THE DOE DEFENDANTS (CCP SECTION 2025.410 et seq.)
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He has taken the default of one defendant, Jim Nord sued as DOE 5, under quiet stealth
knowing that Sunderland | McCutchan, LLP represented Jim Nord in Liebling v. Goodrich,
Sonoma County Superior Court Case No. SCV-245738. Abel has refused to set aside this
default. Jim Nord has a motion to set aside and vacate his default pending before this court. Abe!
has named 16 DOE defendants in this action at various times despite knowing their identities
when this action was filed on November 2, 2018.
DOES 6 through 16 were named in a December 9, 2021 filing. All of these DOE
defendants as a matter of law are entitled to dismissals due to Abel’s undisputed failure to name
and serve these DOE defendants with the summons and complaint in this action within three (3)
years of the November 2, 2018 filing of this action under CCP section 583.210. There are
pending motions to dismiss by some of these DOE 6 through 16 defendants who do not
understand why they have been named as defendants in this lawsuit and want to sit in person in
the same room as Abel as he answers questions as to his claims in this action.
Of utmost significance is, Abel has no damages as a matter of law, despite his alleged
assignments from former plaintiffs in Liebling v. Goodrich, Sonoma County Superior Court Case
No. SCV-245738. The assignments are believed to be fabricated with dates before the plaintiffs
were dismissed as requested and may not have been signed by the people whose names are on
the assignments in that debtor Robert Zuckerman received his bankruptcy discharge in a Chapter
7 bankruptcy on January 28, 2022. The bankruptcy court concluded that his liabilities were
greater than his assets. (See accompanying request for judicial notice).
Il
Abel’s Request for a Protective Order, or in the Alternative,
to Quash his Notice Deposition Must Be Denied
CCP section 2025.310 states:
MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO PLAINTIFF'S MOTION FOR A PROTECTIVE ORDER, OR IN
‘THE ALTERNATIVE, TO QUASH THE NOTICE OF HIS DEPOSITION BY THE DOE DEFENDANTS AND FOR MONETARY
SANCTIONS BY THE DOE DEFENDANTS (CCP SECTION 2025.410 et seq.)
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(a) At the election of the deponent or the deposing party, the deposition officer may
attend the deposition at a different location than the deponent via remote means. A deponent is
not required to be physically present with the deposition officer when being sworn in at the
time of the deposition.
(b) Subject to Section 2025.420, any party or attorney of record may, but is not
required to, be physically present at the deposition at the location of the deponent.
(c) The procedures to implement this section shall be established by court order in the}
specific action or proceeding or by the California Rules of Court.
(d) An exercise of the authority granted by subdivision (a) or (b) does not waive any
other provision of this title, including, but not limited to, provisions regarding the time, place, or
manner in which a deposition shall be conducted.
(e) This section does not alter or amend who may lawfully serve as a deposition
officer pursuant to this title or who otherwise may administer oaths pursuant to Sections 2093
and 2094 of this code or Section 8201 of the Government Code. (Emphasis added.)
California Rules of Court rule 3.1010(b) allows any party, other than the deponent or
attorney of record, to appear and participate in an oral deposition by telephone, videoconference,
or other remote electronic means provided.
Written notice of such appearance is served by personal delivery, e-mail, or fax at least
five court days before the deposition. The appearing party makes all arrangements and pays all
expenses incurred for the appearance. A deponent must appear as required by statute or as
agreed to by the parties and the deponent.
Abel has cited no statute, case law or any other authority where he as the deponent can
dictate that he can have his deposition taken away from the noticing party, the noticing party’s
attorney, and any other defendant in this action given the COVID-19 conditions as to March 31,
2022 in Sonoma County, California.
Abel has cited United States v. Greenlight Organics, Inc. 503 F. Supp. 3d 1269 (2021)
decided in March 2021 for the proposition that he is entitled to have his properly noticed
deposition in this action done remotely by Zoom. This federal case was decided by the United
MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO PLAINTIFF'S MOTION FOR A PROTECTIVE ORDER, OR IN
THE ALTERNATIVE, TO QUASH THE NOTICE OF HIS DEPOSITION BY THE DOE DEFENDANTS AND FOR MONETARY
SANCTIONS BY THE DOE DEFENDANTS (CCP SECTION 2025.410 et seq.)
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States Court of International Trade in March 2021 before the Covid-19 vaccine was available
and did not deal with a noticed deposition in California. Not only is United States v. Greenlight
Organics, Inc., supra not a California federal court matter, the Covid-19 situation in Sonoma
County as of March 31, 2022 is entirely different than what the COVOD-19 situation was
when United States v. Greenlight Organics, Inc., supra was decided in March 2021.
For example: (1) the COVID-19 vaccination with two doses and a booster have all come
out in the United States and Sonoma County after March 2021; (2) COVID-19 rates have greatly
declined in Sonoma County the few months before March 31, 2022; (3) effective March 1, 2022,
masking is not mandated in an in-person deposition situation in Sonoma County (See accompany
request for judicial notice items 5 and 6), and (4) Abel in his declaration in support of this
motion neglected to advise this court that he showed up in person to contest a December 15,
2021 3:00 p.m. motion in Courtroom 18 to disqualify Sunderland | McCutchan, LLP that he lost.
The crux of Abel’s motion before this court is that he does not want to wear a mask for seven (7)
hours at his properly noticed deposition that he refused to attend and is feigning concern of
himself getting COVID-19 at his duly noticed deposition. (March 29, 2022 Declaration of Abel,
par. 10).
Abel failed to advise this court in his March 29, 2022 declaration if he has any health
issues, let alone, if he has been vaccinated and boosted for the COVID-19 virus. He neglected to
advise this court that he showed in person for a December 15, 2021 motion in this action that he
lost. Had Abel been truly concerned about his health and the COVID-19 virus on December 15,
2021 in this action, he would have appeared remotely to contest the tentative ruling.
The reality behind this motion is that Abel does not want to answer poignant questions as
to his claims in this action in the presence of those that he has sued at various stages in this
MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO PLAINTIFF:S MOTION FOR A PROTECTIVE ORDER, OR IN
THE ALTERNATIVE, TO QUASH THE NOTICE OF HIS DEPOSITION BY THE DOE DEFENDANTS AND FOR MONETARY
SANCTIONS BY THE DOE DEFENDANTS (CCP SECTION 2025.410 et seq.)
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action where there are written admissions by him that he had no written assignments as of May
2014, where Robert Zuckerman obtained a Chapter 7 bankruptcy discharge on January 28, 2022,
when Abel prepared his alleged assignments in this action, why he has not brought a motion in
the Liebling action to prove he obtained his claimed assignments before the former clients in the
Liebling action were dismissed as they requested, why he has failed to provide any declaration
from the claimed former plaintiffs in the Liebling action as to the specific date and circumstances
when they allegedly signed such assignments that the defense contends are fabricated as to being
backdated and are not signed by the person whose name is on the documents and many more
issues as to Abel’s claims in his broadly drafted first amended complaint in this action.
The defendants in this action are entitled to know the factual basis of this perceived
frivolous action by Abel in his physical presence in the same room as him under Due Process. If
Abel does not want his deposition in the same room as those he sued, then he should dismiss this
action with prejudice.
Despite Abel objecting to many documents, he was requested to produce at his March 31,
2022 deposition that he chose to not attend, he does not address these in this motion. This court
can infer that Abel’s motion before it and his objections are part of his dilatory tactics in this
action that lacks factual and legal basis. If Abel actually has a factual and legal basis for this
action where the key documents supporting his claims were not fabricated as the defense asserts,
Abel would have come willingly to his noticed deposition on March 31, 2022.
Abel wants his deposition to be taken where he can appear remotely and not in the
presence of the defendants and their attorneys in his deposition. This court can infer that Abel
has something to hide at his properly noticed deposition that he does not want to explain ina
face-to-face situation in the same room as those he has sued and their attorneys.
MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO PLAINTIFF’S MOTION FOR A PROTECTIVE ORDER, OR IN
THE ALTERNATIVE, TO QUASH THE NOTICE OF HIS DEPOSITION BY THE DOE DEFENDANTS AND FOR MONETARY
SANCTIONS BY THE DOE DEFENDANTS (CCP SECTION 2025.410 et seq.)
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The party seeking a protective order bears the burden to show good cause for the
requested order. (Fairmont Ins. Co. v. Superior Court 2000 22 Cal. 4! 245, 255). California’s
discovery process allows for discovery of all relevant material and is designed to eliminate the
element of surprise. (Ibid. at 253, fn. 2).
Abel filed this action. He bears the burden of proof as to all of his allegations in his first
amended complaint. For Abel to not want to answer questions supporting his claims in this
action in the same room with those he has sued infers that his action is without factual and legal
basis and is fabricated. If Abel can dictate that he does not appear in person at the deposition
with the parties he has sued, and their attorneys in attendance, he will continue to be
uncooperative as he has been throughout this litigation.
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MONETARY SANCTIONS SHOULD BE IMPOSED AGAINST
ABEL IN FAVOR OF THE DOE DEFENDANTS
CCP section 2025.410 states:
“(d) The court shall impose a monetary sanction under Chapter 7 (commencing with
Section 2023.010) against any party, person, or attorney who unsuccessfully makes or
opposes a motion to quash a deposition notice unless it finds that the one subject to the
sanction acted with substantial justification or that other circumstances make the
imposition of the sanctions unjust.”
CCP section 2025.420 states:
“(h) The court shall impose a monetary sanction under Chapter 7 (commencing with
Section 2023.010) against any party, person, or attorney who unsuccessfully makes or
opposes a motion for a protective order, unless it finds that the one subject to the sanction
acted with substantial justification or that other circumstances make the imposition of the
sanction unjust.”
Trial courts are often required to impose monetary sanctions when parties or attorneys
misuse the discovery process or unsuccessfully file or oppose motions for protective orders.
MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO PLAINTIFF’S MOTION FOR A PROTECTIVE ORDER, OR IN,
THE ALTERNATIVE, TO QUASH THE NOTICE OF HIS DEPOSITION BY THE DOE DEFENDANTS AND FOR MONETARY
SANCTIONS BY THE DOE DEFENDANTS (CCP SECTION 2025.410 et seq.)
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Section 2023.030, subdivision (a) states, “If a monetary sanction is authorized by any provision
of [the Code of Civil Procedure], the court shall impose that sanction unless it finds that the one
subject to the sanction acted with substantial justification or that other circumstances make the
imposition of the sanction unjust.” (Italics added.) Reiterating this standard to the specific
context of motions for protective orders, section 2025.420, subdivision (h) states, “The court
shall impose a monetary sanction against any party, person, or attorney who unsuccessfully
makes or opposes a motion for a protective order, unless it finds that the one subject to the
sanction acted with substantial justification or that other circumstances make the imposition of
the sanction unjust.” (Italics added.) “ ‘[SJubstantial justification’ ... mean[s] that a justification
is clearly reasonable because it is well-grounded in both law and fact.’ ” (Doe v. U.S.
Swimming, Inc, (2011) 200 Cal.App.4" 1424, 1434 (Doe).
IV
CONCLUSION
Abel’s motion for a protective order is untimely brought after his March 31, 2022 noticed
deposition that he refused to attend. This motion must be denied in its entirety, this court should
order Abel to attend an in-person deposition with the parties he has sued and their attorneys in
attendance in the same room as him and sanction Richard Abel the amount requested in this
opposition of $2,082.50 payable within 45 days of notice of order after hearing.
Date: April ad 2022
Attorneys for De
DALE DAVIS SUED AS DOE 4
JIM NORD SUED AS DOE 5
JACINDA DUVAL SUED AS DOE 7
BILL HING SUED AS DOE 8
LENORA VERNE FUNG SUED AS DOE 9
JUSTIN POENG SUED AS DOE 11
MATTHEW ZDANEK SUED AS DOE 16
MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO PLAINTIFF’S MOTION FOR A PROTECTIVE ORDER, ORIN
‘THE ALTERNATIVE, TO QUASH THE NOTICE OF HIS DEPOSITION BY THE DOE DEFENDANTS AND FOR MONETARY
SANCTIONS BY THE DOE DEFENDANTS (CCP SECTION 2025.410 et seq.)
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PROOF OF SERVICE
STATE OF CALIFORNIA, COUNTY OF SONOMA
I am employed in the County of Sonoma, State of California. I am over the age of 18 and
not a party to the within action; my present address is: 1083 Vine Street, Suite 907, Healdsburg,
California 95448.
On April At 2022, I served the foregoing documents described as MEMORANDUM
OF POINTS AND AUTHORITIES IN OPPOSITION TO PLAINTIFF’S MOTION FOR
A PROTECTIVE ORDER, OR IN THE ALTERNATIVE, TO QUASH THE NOTICE OF
HIS DEPOSITION BY THE DOE DEFNDANTS on the parties by placing a true copy thereof
enclosed in a sealed envelope addressed as follows:
SEE ATTACHED SERVICE LIST
Vy Regular U.S. Mail. The documents were placed for collection and mailing following
ordinary business practice for deposit in the United States Postal Service in a sealed envelope with
postage thereon fully prepaid, addressed as stated above.
By personal service. I caused each such envelope to be delivered by hand to the addressee(s.
as stated above.
By facsimile transmitted from (707) 433-0379. The document transmission was reported ag
complete and without error.
By email or electronic transmission. I caused the document to be sent to the persons at th¢
email addresses listed below. I did not receive within a reasonable time after the transmission an
electronic message or other indication that the transmission was unsuccessful.
I declare under penalty of perjury under the laws of the State of California that the foregoing
is true and correct and that this declaration was executed on April At 2022, at Healdsburg.
California.
MEMORANDUM.OF POINTS AND AUTHORITIES IN OPPOSITION TO PLAINTIFF’S MOTION FOR A PROTECTIVE ORDER, OR IN
THE ALTERNATIVE, TO QUASH THE NOTICE OF HIS DEPOSITION BY THE DOE DEFENDANTS AND FOR MONETARY
SANCTIONS BY THE DOE DEFENDANTS (CCP SECTION 2025.410 et seq.)
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Abel v. McCutchan, et al.
Sonoma County Superior Court Case No. SCV-263456
Plaintiff in Pro Per: Richard Abel
Richard Abel USPS FIRST CLASS MAIL - ONLY
707 Hahman Drive, #9301
Santa Rosa, CA 95405-9301
Tel: (707) 340-3894
E-Mail: pererel@gmail.com
Attorneys for Defendants: Sunderland | McCutchan, Inc.; Sunderland | McCutchan, LLP,
B. Edward McCutchan, Jr.
Joseph S. Picchi, Esq. ELECTRONIC SERVICE - ONLY
Aaron T. Schultz, Esq.
Alexander Promm, Esq.
Galloway, Lucchese, Everson & Picchi
A Professional Corporation
2300 Contra Costa Blvd., Suite 350
Pleasant Hill, CA 94523-2398
Tel. No. (925) 930-9090
Fax No. (925) 930-9035
E-Mail: aschultz@glattys.com
MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO PLAINTIFF'S MOTION FOR A PROTECTIVE ORDER, OR IN | «
THE ALTERNATIVE, TO QUASH THE NOTICE OF HIS DEPOSITION BY THE DOE DEFENDANTS AND FOR MONETARY
SANCTIONS BY THE DOE DEFENDANTS (CCP SECTION 2025.410 et seq.)
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10 il 12 13 14 is 16 17 18 19 20 21 22 23 24 25 26 27 28 Edward McCutchan (SBN 119376) SUNDERLAND | McCUTCHAN, LLP. 1083 Vine Street, Suite 907 Healdsburg, California 95448 Telephone: (707) 433-0377 Facsimile: (707) 433-0379 Attorneys for Defendants DALE DAVIS SUED AS DOE 4 JIM NORD SUED AS DOE 5 JACINDA DUVAL SUED AS DOE 7 BILL HING SUED AS DOE 8 LENORA VERNE FUNG SUED AS DOE 9 JUSTIN POENG SUED AS DOE 11 MATTHEW ZDANEK SUED AS DOE 16 SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SONOMA RICHARD ABEL, an individual, CASE NO. SCV-263456 MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO PLAINTIFF’S MOTION FOR A PROTECTIVE ORDER, OR IN THE ALTERNATIVE, TO QUASH THE NOTICE OF HIS DEPOSITION BY THE DOE DEFENDANTS AND FOR MONETARY SANCTIONS BY THE DOE DEFENDANTS (CCP SECTION 2025.410 et seq.) Plaintiff, vs. B. EDWARD McCUTCHAN, JR. an individual; SUNDERLAND | McCUTCHAN, LLP, a general partnership; and DOES 1 through 100, inclusive, Date: June 29, 2022 Time: 3:00 p.m. Courtroom: 17 Defendants. EEE ee I INTRODUCTION Plaintiff, Richard Abel (hereinafter “Abel”) who is representing himself in propria persona has a long history of filing repetitive discovery motions and failing to abide by court orders in this action and in Liebling v. Goodrich, Sonoma County Superior Court Case No. SCV- 245738. MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO PLAINTIFF’S MOTION FOR A PROTECTIVE ORDER, OR IN THE ALTERNATIVE, TO QUASH THE NOTICE OF HIS DEPOSITION BY THE DOE DEFENDANTS AND FOR MONETARY SANCTIONS BY THE DOE DEFENDANTS (CCP SECTION 2025.410 et seq.) 110 11 12 13 14 is 16 17 18 19 20 21 22 23 24 25 26 27 28 He has taken the default of one defendant, Jim Nord sued as DOE 5, under quiet stealth knowing that Sunderland | McCutchan, LLP represented Jim Nord in Liebling v. Goodrich, Sonoma County Superior Court Case No. SCV-245738. Abel has refused to set aside this default. Jim Nord has a motion to set aside and vacate his default pending before this court. Abe! has named 16 DOE defendants in this action at various times despite knowing their identities when this action was filed on November 2, 2018. DOES 6 through 16 were named in a December 9, 2021 filing. All of these DOE defendants as a matter of law are entitled to dismissals due to Abel’s undisputed failure to name and serve these DOE defendants with the summons and complaint in this action within three (3) years of the November 2, 2018 filing of this action under CCP section 583.210. There are pending motions to dismiss by some of these DOE 6 through 16 defendants who do not understand why they have been named as defendants in this lawsuit and want to sit in person in the same room as Abel as he answers questions as to his claims in this action. Of utmost significance is, Abel has no damages as a matter of law, despite his alleged assignments from former plaintiffs in Liebling v. Goodrich, Sonoma County Superior Court Case No. SCV-245738. The assignments are believed to be fabricated with dates before the plaintiffs were dismissed as requested and may not have been signed by the people whose names are on the assignments in that debtor Robert Zuckerman received his bankruptcy discharge in a Chapter 7 bankruptcy on January 28, 2022. The bankruptcy court concluded that his liabilities were greater than his assets. (See accompanying request for judicial notice). Il Abel’s Request for a Protective Order, or in the Alternative, to Quash his Notice Deposition Must Be Denied CCP section 2025.310 states: MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO PLAINTIFF'S MOTION FOR A PROTECTIVE ORDER, OR IN ‘THE ALTERNATIVE, TO QUASH THE NOTICE OF HIS DEPOSITION BY THE DOE DEFENDANTS AND FOR MONETARY SANCTIONS BY THE DOE DEFENDANTS (CCP SECTION 2025.410 et seq.) 210 1. 12 13 14 is 16 17 18 19 20 21 22 23 24 25 26 27 28 (a) At the election of the deponent or the deposing party, the deposition officer may attend the deposition at a different location than the deponent via remote means. A deponent is not required to be physically present with the deposition officer when being sworn in at the time of the deposition. (b) Subject to Section 2025.420, any party or attorney of record may, but is not required to, be physically present at the deposition at the location of the deponent. (c) The procedures to implement this section shall be established by court order in the} specific action or proceeding or by the California Rules of Court. (d) An exercise of the authority granted by subdivision (a) or (b) does not waive any other provision of this title, including, but not limited to, provisions regarding the time, place, or manner in which a deposition shall be conducted. (e) This section does not alter or amend who may lawfully serve as a deposition officer pursuant to this title or who otherwise may administer oaths pursuant to Sections 2093 and 2094 of this code or Section 8201 of the Government Code. (Emphasis added.) California Rules of Court rule 3.1010(b) allows any party, other than the deponent or attorney of record, to appear and participate in an oral deposition by telephone, videoconference, or other remote electronic means provided. Written notice of such appearance is served by personal delivery, e-mail, or fax at least five court days before the deposition. The appearing party makes all arrangements and pays all expenses incurred for the appearance. A deponent must appear as required by statute or as agreed to by the parties and the deponent. Abel has cited no statute, case law or any other authority where he as the deponent can dictate that he can have his deposition taken away from the noticing party, the noticing party’s attorney, and any other defendant in this action given the COVID-19 conditions as to March 31, 2022 in Sonoma County, California. Abel has cited United States v. Greenlight Organics, Inc. 503 F. Supp. 3d 1269 (2021) decided in March 2021 for the proposition that he is entitled to have his properly noticed deposition in this action done remotely by Zoom. This federal case was decided by the United MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO PLAINTIFF'S MOTION FOR A PROTECTIVE ORDER, OR IN THE ALTERNATIVE, TO QUASH THE NOTICE OF HIS DEPOSITION BY THE DOE DEFENDANTS AND FOR MONETARY SANCTIONS BY THE DOE DEFENDANTS (CCP SECTION 2025.410 et seq.) 310 iL 12 13 14 15 16 17 18 19 20 2. 22 | 23 24 25 26 27 28 States Court of International Trade in March 2021 before the Covid-19 vaccine was available and did not deal with a noticed deposition in California. Not only is United States v. Greenlight Organics, Inc., supra not a California federal court matter, the Covid-19 situation in Sonoma County as of March 31, 2022 is entirely different than what the COVOD-19 situation was when United States v. Greenlight Organics, Inc., supra was decided in March 2021. For example: (1) the COVID-19 vaccination with two doses and a booster have all come out in the United States and Sonoma County after March 2021; (2) COVID-19 rates have greatly declined in Sonoma County the few months before March 31, 2022; (3) effective March 1, 2022, masking is not mandated in an in-person deposition situation in Sonoma County (See accompany request for judicial notice items 5 and 6), and (4) Abel in his declaration in support of this motion neglected to advise this court that he showed up in person to contest a December 15, 2021 3:00 p.m. motion in Courtroom 18 to disqualify Sunderland | McCutchan, LLP that he lost. The crux of Abel’s motion before this court is that he does not want to wear a mask for seven (7) hours at his properly noticed deposition that he refused to attend and is feigning concern of himself getting COVID-19 at his duly noticed deposition. (March 29, 2022 Declaration of Abel, par. 10). Abel failed to advise this court in his March 29, 2022 declaration if he has any health issues, let alone, if he has been vaccinated and boosted for the COVID-19 virus. He neglected to advise this court that he showed in person for a December 15, 2021 motion in this action that he lost. Had Abel been truly concerned about his health and the COVID-19 virus on December 15, 2021 in this action, he would have appeared remotely to contest the tentative ruling. The reality behind this motion is that Abel does not want to answer poignant questions as to his claims in this action in the presence of those that he has sued at various stages in this MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO PLAINTIFF:S MOTION FOR A PROTECTIVE ORDER, OR IN THE ALTERNATIVE, TO QUASH THE NOTICE OF HIS DEPOSITION BY THE DOE DEFENDANTS AND FOR MONETARY SANCTIONS BY THE DOE DEFENDANTS (CCP SECTION 2025.410 et seq.) 410 11 12 13 14 15 16 17 18 19 20 aL 22 23 24 25 26 27 28 action where there are written admissions by him that he had no written assignments as of May 2014, where Robert Zuckerman obtained a Chapter 7 bankruptcy discharge on January 28, 2022, when Abel prepared his alleged assignments in this action, why he has not brought a motion in the Liebling action to prove he obtained his claimed assignments before the former clients in the Liebling action were dismissed as they requested, why he has failed to provide any declaration from the claimed former plaintiffs in the Liebling action as to the specific date and circumstances when they allegedly signed such assignments that the defense contends are fabricated as to being backdated and are not signed by the person whose name is on the documents and many more issues as to Abel’s claims in his broadly drafted first amended complaint in this action. The defendants in this action are entitled to know the factual basis of this perceived frivolous action by Abel in his physical presence in the same room as him under Due Process. If Abel does not want his deposition in the same room as those he sued, then he should dismiss this action with prejudice. Despite Abel objecting to many documents, he was requested to produce at his March 31, 2022 deposition that he chose to not attend, he does not address these in this motion. This court can infer that Abel’s motion before it and his objections are part of his dilatory tactics in this action that lacks factual and legal basis. If Abel actually has a factual and legal basis for this action where the key documents supporting his claims were not fabricated as the defense asserts, Abel would have come willingly to his noticed deposition on March 31, 2022. Abel wants his deposition to be taken where he can appear remotely and not in the presence of the defendants and their attorneys in his deposition. This court can infer that Abel has something to hide at his properly noticed deposition that he does not want to explain ina face-to-face situation in the same room as those he has sued and their attorneys. MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO PLAINTIFF’S MOTION FOR A PROTECTIVE ORDER, OR IN THE ALTERNATIVE, TO QUASH THE NOTICE OF HIS DEPOSITION BY THE DOE DEFENDANTS AND FOR MONETARY SANCTIONS BY THE DOE DEFENDANTS (CCP SECTION 2025.410 et seq.) 510 il 12 43 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 The party seeking a protective order bears the burden to show good cause for the requested order. (Fairmont Ins. Co. v. Superior Court 2000 22 Cal. 4! 245, 255). California’s discovery process allows for discovery of all relevant material and is designed to eliminate the element of surprise. (Ibid. at 253, fn. 2). Abel filed this action. He bears the burden of proof as to all of his allegations in his first amended complaint. For Abel to not want to answer questions supporting his claims in this action in the same room with those he has sued infers that his action is without factual and legal basis and is fabricated. If Abel can dictate that he does not appear in person at the deposition with the parties he has sued, and their attorneys in attendance, he will continue to be uncooperative as he has been throughout this litigation. i MONETARY SANCTIONS SHOULD BE IMPOSED AGAINST ABEL IN FAVOR OF THE DOE DEFENDANTS CCP section 2025.410 states: “(d) The court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against any party, person, or attorney who unsuccessfully makes or opposes a motion to quash a deposition notice unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanctions unjust.” CCP section 2025.420 states: “(h) The court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against any party, person, or attorney who unsuccessfully makes or opposes a motion for a protective order, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.” Trial courts are often required to impose monetary sanctions when parties or attorneys misuse the discovery process or unsuccessfully file or oppose motions for protective orders. MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO PLAINTIFF’S MOTION FOR A PROTECTIVE ORDER, OR IN, THE ALTERNATIVE, TO QUASH THE NOTICE OF HIS DEPOSITION BY THE DOE DEFENDANTS AND FOR MONETARY SANCTIONS BY THE DOE DEFENDANTS (CCP SECTION 2025.410 et seq.) 610 i 12 43 14 15 16 17 18 19 20 a1 22 23 24 25 26 27 28 Section 2023.030, subdivision (a) states, “If a monetary sanction is authorized by any provision of [the Code of Civil Procedure], the court shall impose that sanction unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.” (Italics added.) Reiterating this standard to the specific context of motions for protective orders, section 2025.420, subdivision (h) states, “The court shall impose a monetary sanction against any party, person, or attorney who unsuccessfully makes or opposes a motion for a protective order, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.” (Italics added.) “ ‘[SJubstantial justification’ ... mean[s] that a justification is clearly reasonable because it is well-grounded in both law and fact.’ ” (Doe v. U.S. Swimming, Inc, (2011) 200 Cal.App.4" 1424, 1434 (Doe). IV CONCLUSION Abel’s motion for a protective order is untimely brought after his March 31, 2022 noticed deposition that he refused to attend. This motion must be denied in its entirety, this court should order Abel to attend an in-person deposition with the parties he has sued and their attorneys in attendance in the same room as him and sanction Richard Abel the amount requested in this opposition of $2,082.50 payable within 45 days of notice of order after hearing. Date: April ad 2022 Attorneys for De DALE DAVIS SUED AS DOE 4 JIM NORD SUED AS DOE 5 JACINDA DUVAL SUED AS DOE 7 BILL HING SUED AS DOE 8 LENORA VERNE FUNG SUED AS DOE 9 JUSTIN POENG SUED AS DOE 11 MATTHEW ZDANEK SUED AS DOE 16 MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO PLAINTIFF’S MOTION FOR A PROTECTIVE ORDER, ORIN ‘THE ALTERNATIVE, TO QUASH THE NOTICE OF HIS DEPOSITION BY THE DOE DEFENDANTS AND FOR MONETARY SANCTIONS BY THE DOE DEFENDANTS (CCP SECTION 2025.410 et seq.) 710 11 12 13 14 is 16 17 18 19 20 21 .22 23 24 25 26 27 28 PROOF OF SERVICE STATE OF CALIFORNIA, COUNTY OF SONOMA I am employed in the County of Sonoma, State of California. I am over the age of 18 and not a party to the within action; my present address is: 1083 Vine Street, Suite 907, Healdsburg, California 95448. On April At 2022, I served the foregoing documents described as MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO PLAINTIFF’S MOTION FOR A PROTECTIVE ORDER, OR IN THE ALTERNATIVE, TO QUASH THE NOTICE OF HIS DEPOSITION BY THE DOE DEFNDANTS on the parties by placing a true copy thereof enclosed in a sealed envelope addressed as follows: SEE ATTACHED SERVICE LIST Vy Regular U.S. Mail. The documents were placed for collection and mailing following ordinary business practice for deposit in the United States Postal Service in a sealed envelope with postage thereon fully prepaid, addressed as stated above. By personal service. I caused each such envelope to be delivered by hand to the addressee(s. as stated above. By facsimile transmitted from (707) 433-0379. The document transmission was reported ag complete and without error. By email or electronic transmission. I caused the document to be sent to the persons at th¢ email addresses listed below. I did not receive within a reasonable time after the transmission an electronic message or other indication that the transmission was unsuccessful. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct and that this declaration was executed on April At 2022, at Healdsburg. California. MEMORANDUM.OF POINTS AND AUTHORITIES IN OPPOSITION TO PLAINTIFF’S MOTION FOR A PROTECTIVE ORDER, OR IN THE ALTERNATIVE, TO QUASH THE NOTICE OF HIS DEPOSITION BY THE DOE DEFENDANTS AND FOR MONETARY SANCTIONS BY THE DOE DEFENDANTS (CCP SECTION 2025.410 et seq.) 810 1. 12 13 14 1s 16 17 18 19 20 21 22 23 24 25 26 27 28 Abel v. McCutchan, et al. Sonoma County Superior Court Case No. SCV-263456 Plaintiff in Pro Per: Richard Abel Richard Abel USPS FIRST CLASS MAIL - ONLY 707 Hahman Drive, #9301 Santa Rosa, CA 95405-9301 Tel: (707) 340-3894 E-Mail: pererel@gmail.com Attorneys for Defendants: Sunderland | McCutchan, Inc.; Sunderland | McCutchan, LLP, B. Edward McCutchan, Jr. Joseph S. Picchi, Esq. ELECTRONIC SERVICE - ONLY Aaron T. Schultz, Esq. Alexander Promm, Esq. Galloway, Lucchese, Everson & Picchi A Professional Corporation 2300 Contra Costa Blvd., Suite 350 Pleasant Hill, CA 94523-2398 Tel. No. (925) 930-9090 Fax No. (925) 930-9035 E-Mail: aschultz@glattys.com MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO PLAINTIFF'S MOTION FOR A PROTECTIVE ORDER, OR IN | « THE ALTERNATIVE, TO QUASH THE NOTICE OF HIS DEPOSITION BY THE DOE DEFENDANTS AND FOR MONETARY SANCTIONS BY THE DOE DEFENDANTS (CCP SECTION 2025.410 et seq.) 9