Preview
Richard Abel
1
707 Hahman Drive No. 9301
2 Santa Rosa, CA 95405
Telephone: (707) 340-3894
3
4 Plaintiff, in pro per
5
6
7
8 SUPERIOR COURT OF THE STATE OF CALIFORNIA
9 FOR THE COUNTY OF SONOMA
10
11
RICHARD ABEL, an individual; Case Number: SCV-263456
12
Plaintiff; PLAINTIFF'S SEPARATE STATEMENT IN
13 SUPPORT OF PLAINTIFF'S OPPOSITION
v.
TO THE MOTION TO COMPEL BY
14 DEFENDANT DALE DAVIS
B. EDWARD McCUTCHAN JR. an
15 individual; SUNDERLAND/McCUTCHAN,
16 LLP, a general partnership; and DOES 1 Date: September 12, 2022
through 100, inclusive; Time: 1:30 p.m.
17 Dept: 13 - Hon. Christopher Honigsberg
Defendants. Trial: January 13, 2022
18
19
TO THE COURT, ALL PARTIES AND THEIR ATTORNEYS OF RECORD:
20
This separate statement is hereby submitted by Plaintiff Richard Abel ("Plaintiff")
21
in support of his opposition to the motion to compel "complete" responses to Requests for
22
Admission, Set One by defendant Dale Davis' ("Davis")
23
I.
24 THE PREFACE
25
A preface of definitions was included in the Requests for Admissions served by Davis.
26
This is set forth verbatim here::
27 “Defendant Dale Davis hereby requests you to admit the truth of each of the following
requests for admissions in the manner prescribed by Code of Civil Procedure Section 2033.010
28
et seq., within thirty (30) days of service of this request.
PLAINTIFF'S SEPARATE STATEMENT IN SUPPORT OF OPPOSITION - DAVIS
1
NOTICE that pursuant to Code of Civil Procedure Section 2033, if the responding party
1
to a request for admission fails to admit the truth of any matter when requested to do so, and the
2 party requesting the admission therafter proves the truth of the matter, the party requesting the
admission may move the court for an order requiring the party to whom the request was directed
3
to pay the reasonable expenses incurred in making that proof, including reasonable attorney's
4 fees.
DEFINITIONS
5
6
1. The word DOCUMENT means a writing, as defined in Evidence Code § 250,
and includes the original or copy of handwriting, typewriting, printing, photostating,
7 photographing, and every other means of recording upon any tangible thing and form of
communicating or representation, including letters, words, pictures, sounds, symbols, or
8
combinations thereof.
9 2. The word YOU and YOURS refer to Plaintiff, Richard Abel, his agents, and
anyone else acting on his behalf.
10 3. The word PROPOUNDING PARTY refers to Defendant, Dale Davis.
11 4. The word PERSON(S) includes a natural person, corporation, association,
partnership, sole proprietorship, or public entity.
12 5. The word IDENTIFY means, regarding an individual or entity to set forth the full
name, current or last known business or residential address, and current or last known business
13
or residential telephone number, and regarding a documents, means to identify the date, author,
14 recipient, and subject matter of the document.
6. The word INSOLVENT means, excess of liabilities over assets."
15
16 PLAINTIFF: Why A Further Response Should NOT Be Ordered:
Code of Civil Procedure Section 2033.060(d) does not permit such a preface. Plaintiff's
17 objection as to form, is proper and should be sustained.
18
II
19 THE RESPONSES TO THE REQUESTS:
20 REQUEST FOR ADMISSION ONE (1): Admit that on January 28, 2022 the United States
21 Bankruptcy Court in and for the Central District of California issued an order of discharge in
22 case # 1:18-bk-11150-VK as to Robert Edward Zuckerman aka Bob Zuckerman under 11 I.S.C.
23 section 727.
24
RESPONSE: Responding Party objects to this request for admission because there is a
25 preface of instructions and definitions at the beginning of the requesting document which
violates Code of Civil Procedure Section 2033.060(d).
26
27 Responding Party also objects to this request for admission because Responding Party is not a
bankruptcy lawyer and this request seeks admission of a legal matter and/or seeks a legal
28 conclusion, without reference to any fact, which is beyond the scope of discovery permitted by
PLAINTIFF'S SEPARATE STATEMENT IN SUPPORT OF OPPOSITION - DAVIS
2
Code of Civil Procedure Section 2033.010.
1
2 Without waiving the foregoing objections, Responding Party responds as follows: The
information requested is a public record that may be obtained from the Bankruptcy Court
3 directly, and thus is information equally available to Propounding Party. Discovery has not
4
been completed and is continuing.
5
DAVIS: Why The Objection Should Be Overruled and Answered: Plaintiff, Richard
6 Abel in propria, has no damages as a matter of law as to any claims pertaining to Robert
7 Zuckerman in this action, and it was improper to either admit or deny the January 28, 2022 Order
8 of Discharge under 11 U.S.C. Section 727 that is part of this admission discovery motion where
9 plaintiff Richard Abel participated in Robert Zuckerman's bankruptcy matters (In re Robert
10 Zuckerman 613 B.R. 707 (9th Cir. BAP 2020), a published decision and Garretson v. Harold I.
11 Miller (2002) 99 Cal. App. 563, 569). California follows the majority rule that a malpractice
12 plaintiff must prove not only negligence on the part of his or her attorney but that careful
13 management of the case-within-a-case would have resulted in a favorable judgment “and
14 collection of same ….” Richard Abel is claiming in this action that despite being awarded
15 sizeable judgments in the Liebling action, he should have received more from claimed
16 assignments of dismissed plaintiffs despite not complying with the court's May 6,2021 order in
17 the Liebling action in filing a motion with the court to prove with competent evidence that he
18 obtained his claimed assignments from former plaintiffs before they were dismissed as plaintiffs
19 as they requested. See April 26, 2022 filed certified copy of the Order of Discharge dated
20 January 28, 2022 as to Robert Zuckerman filed in this action. Richard Abel was a judgment
21 creditor in Robert Zuckerman's bankruptcy who filed a petition to place Robert Zuckerman in a
22 Chapter 7 no asset bankruptcy needs to “admit” or “deny” this request. His objections are
23 without merit in that he received the initial mailing of this January 28, 2022 Order of Discharge
24 as to Robert Zuckerman from the bankruptcy court. Robert Zuckerman is insolvent.
25 PLAINTIFF: Why A Further Response Should NOT Be Ordered:
26 This Request does not comply with Code of Civil Procedure Section 2033.060(d) which
27 states that "Each request for admission shall be full and complete in and of itself. No preface or
28 instruction shall be included with a set of admission requests unless it has been approved under
PLAINTIFF'S SEPARATE STATEMENT IN SUPPORT OF OPPOSITION - DAVIS
3
1 Chapter 17." The preface and definitions used by Davis violate the Code.
2 The information requested is a public record that is equally available to Davis. There is
3 no duty on the part of Plaintiff to search out matters of public record. When the information
4 sought is equally available to the propounder of the interrogatory, the burden and expense of any
5 research which may be required should be born by the party seeking the information. (See,
6 Bunnell v. Sup.Court (1967) 254 Cal.App. 2d. 720, 723-724.) Edward McCutchan may obtain
7 the same information by making a trip to Los Angeles and searching the bankruptcy court's
8 records for himself. Plaintiff is not expected to travel to Los Angeles to search out matters of
9 public record. (See, Lindgren v. Sup. Ct. (Lindgren) (1965) 237 Cal.App. 2d 743, 746.)
10 Plaintiff has no duty to make inquiry from independent witnesses (persons not his or her
11 agents or employees) in order to answer requests. (See, Holguin v. Sup. Court (Hoage) (1972) 22
12 Cal.App. 3d 812, 826.) Edward McCutchan should ask Robert Zuckerman this question instead
13 of Plaintiff. Davis has not established that Plaintiff has sufficient personal or expert knowledge
14 about Robert Zuckerman's bankruptcy case. Plaintiff cannot verify the truth of documents in the
15 bankruptcy court filed by Robert Zuckerman or his lawyers.
16
REQUEST FOR ADMISSION TWO (2): Admit that Robert Edward Zuckerman, the
17
judgment debtor in Sonoma County Superior Court Case No. SCV-245738 had liabilities greater
18
than his assets as of July 1, 2018 and onward.
19
RESPONSE: Responding Party objects to this request as the terms "his assets" and
20 "onward" are undefined and therefore vague and ambiguous as used in this request.
21
Responding Party further objects to this request as overbroad since the time frame is vague.
22 Responding Party objects to this request for admission because there is a preface of
instructions and definitions at the beginning of the requesting document which violates Code
23
of Civil Procedure Section 2033.060(d).
24
Responding Party also objects to this request for admission because Responding Party is not a
25 bankruptcy lawyer and this request seeks admission of a legal matter and/or seeks a legal
conclusion, without reference to any fact, which is beyond the scope of discovery permitted by
26
Code of Civil Procedure Section 2033.010.
27
Without waiving the foregoing objections, Responding Party responds as follows: A
28 reasonable inquiry concerning the matter in the particular request has been made, and that
PLAINTIFF'S SEPARATE STATEMENT IN SUPPORT OF OPPOSITION - DAVIS
4
the information known or readily obtainable is insufficient to enable Responding Party to
1
admit or deny the matter. Discovery has not been completed and is continuing.
2
DAVIS: Why The Objection Should Be Overruled and Answered: Plaintiff, Richard
3
Abel in propria, has no damages as a matter of law as to any claims pertaining to Robert
4
Zuckerman in this action, and it was improper to either admit or deny the January 28, 2022 Order
5
of Discharge under 11 U.S.C. Section 727 that is part of this admission discovery motion where
6
plaintiff Richard Abel participated in Robert Zuckerman's bankruptcy matters (In re Robert
7
Zuckerman 613 B.R. 707 (9th Cir. BAP 2020), a published decision and Garretson v. Harold I.
8
Miller (2002) 99 Cal. App. 563, 569). California follows the majority rule that a malpractice
9
plaintiff must prove not only negligence on the part of his or her attorney but that careful
10
management of the case-within-a-case would have resulted in a favorable judgment “and
11
collection of same ….” Richard Abel is claiming in this action that despite being awarded
12
sizeable judgments in the Liebling action, he should have received more from claimed
13
assignments of dismissed plaintiffs despite not complying with the court's May 6,2021 order in
14
the Liebling action in filing a motion with the court to prove with competent evidence that he
15
obtained his claimed assignments from former plaintiffs before they were dismissed as plaintiffs
16
as they requested. See April 26, 2022 filed certified copy of the Order of Discharge dated
17
January 28, 2022 as to Robert Zuckerman filed in this action. Richard Abel was a judgment
18
creditor in Robert Zuckerman's bankruptcy who filed a petition to place Robert Zuckerman in a
19
Chapter 7 no asset bankruptcy needs to “admit” or “deny” this request. His objections are
20
without merit in that he received the initial mailing of this January 28, 2022 Order of Discharge
21
as to Robert Zuckerman from the bankruptcy court. Robert Zuckerman is insolvent.
22
PLAINTIFF: Why A Further Response Should NOT Be Ordered:
23
This Request does not comply with Code of Civil Procedure Section 2033.060(d) which
24
states that "Each request for admission shall be full and complete in and of itself. No preface or
25
instruction shall be included with a set of admission requests unless it has been approved under
26
Chapter 17." The preface and definitions used by Davis violates the Code.
27
Robert Zuckerman has never provided Plaintiff with a list of his liabilities as of July 1,
28
PLAINTIFF'S SEPARATE STATEMENT IN SUPPORT OF OPPOSITION - DAVIS
5
1 2018 and onward. The information is not reasonably available to Plaintiff. (See, Lindgren v.
2 Sup. Ct. (Lindgren) (1965) 237 Cal.App. 2d 743, 746.) Plaintiff has no duty to make inquiry
3 from independent witnesses (persons not his or her agents or employees) in order to answer
4 requests. (See, Holguin v. Sup. Court (Hoage) (1972) 22 Cal.App. 3d 812, 826.) Edward
5 McCutchan should ask Robert Zuckerman this question instead of asking Plaintiff.
6 Further, Edward McCutchan cut and pasted in the same argument that has nothing to do
7 with what was asked by this request. This request did not ask anything about a “January 28,
8 2022 Order of Discharge.”
9 Davis has not established that Plaintiff has sufficient personal or expert knowledge about
10 Robert Zuckerman's liabilities or assets as of July 1, 2018 and onward. Thus, Plaintiff's response
11 that he is unable to admit or deny the request is appropriate. Such response is permitted pursuant
12 to Code Civ. Proc. §2033.220(c). A discovery motion is not designed to contest the truth of the
13 responses, but only to compel a party to provide a code-compliant response. Here, Plaintiff has
14 provided a code-compliant response.
15
16 REQUEST FOR ADMISSION THREE (3): Admit that on March 9, 2019 Robert Edward
17 Zuckerman's bankruptcy in the United States Bankruptcy Court in and for the Central District of
18 California in case # 1:18-bk-11150-VK was converted to a Chapter 7.
19 RESPONSE: Responding Party objects to this request for admission because there is a
20
preface of instructions and definitions at the beginning of the requesting document which
violates Code of Civil Procedure Section 2033.060(d).
21
Responding Party also objects to this request for admission because Responding Party is not a
22
bankruptcy lawyer and this request seeks admission of a legal matter and/or seeks a legal
23 conclusion, without reference to any fact, which is beyond the scope of discovery permitted by
Code of Civil Procedure Section 2033.010.
24
Without waiving the foregoing objections, Responding Party responds as follows: The
25
information requested is a public record that may be obtained from the Bankruptcy Court
26 directly, and thus is information equally available to Propounding Party. Discovery has not
been completed and is continuing.
27
DAVIS: Why The Objection Should Be Overruled and Answered: Plaintiff, Richard
28
Abel in propria, has no damages as a matter of law as to any claims pertaining to Robert
PLAINTIFF'S SEPARATE STATEMENT IN SUPPORT OF OPPOSITION - DAVIS
6
1 Zuckerman in this action, and it was improper to either admit or deny the January 28, 2022 Order
2 of Discharge under 11 U.S.C. Section 727 that is part of this admission discovery motion where
3 plaintiff Richard Abel participated in Robert Zuckerman's bankruptcy matters (In re Robert
4 Zuckerman 613 B.R. 707 (9th Cir. BAP 2020), a published decision and Garretson v. Harold I.
5 Miller (2002) 99 Cal. App. 563, 569). California follows the majority rule that a malpractice
6 plaintiff must prove not only negligence on the part of his or her attorney but that careful
7 management of the case-within-a-case would have resulted in a favorable judgment “and
8 collection of same ….” Richard Abel is claiming in this action that despite being awarded
9
sizeable judgments in the Liebling action, he should have received more from claimed
10
assignments of dismissed plaintiffs despite not complying with the court's May 6,2021 order in
11
the Liebling action in filing a motion with the court to prove with competent evidence that he
12
obtained his claimed assignments from former plaintiffs before they were dismissed as plaintiffs
13
as they requested. See April 26, 2022 filed certified copy of the Order of Discharge dated
14
January 28, 2022 as to Robert Zuckerman filed in this action. Richard Abel was a judgment
15
creditor in Robert Zuckerman's bankruptcy who filed a petition to place Robert Zuckerman in
16
a Chapter 7 no asset bankruptcy needs to “admit” or “deny” this request. His objections are
17
without merit in that he received the initial mailing of this January 28, 2022 Order of Discharge
18
as to Robert Zuckerman from the bankruptcy court. Robert Zuckerman is insolvent.
19
PLAINTIFF: Why A Further Response Should NOT Be Ordered:
20
This Request does not comply with Code of Civil Procedure Section 2033.060(d) which
21
states that "Each request for admission shall be full and complete in and of itself. No preface or
22
instruction shall be included with a set of admission requests unless it has been approved under
23
Chapter 17." The preface and definitions used by Davis violate the Code.
24
Edward McCutchan cut and pasted in the same argument that has nothing to do with what
25
was asked by this request. This request did not ask about a "January 28, 2022 Order of
26
Discharge."
27
The information requested is a public record that is equally available to Davis. There is
28
no duty on the part of Plaintiff to search out matters of public record. When the information
PLAINTIFF'S SEPARATE STATEMENT IN SUPPORT OF OPPOSITION - DAVIS
7
1 sought is equally available to the propounder of the interrogatory, the burden and expense of any
2 research which may be required should be born by the party seeking the information. (See,
3 Bunnell v. Sup.Court (1967) 254 Cal.App. 2d. 720, 723-724.) Edward McCutchan may obtain
4 the same information by making a trip to Los Angeles and searching the bankruptcy court's
5 records for himself. Plaintiff is not expected to travel to Los Angeles to search out matters of
6 public record. (See, Lindgren v. Sup. Ct. (Lindgren) (1965) 237 Cal.App. 2d 743, 746.)
7 Plaintiff has no duty to make inquiry from independent witnesses (persons not his or her
8 agents or employees) in order to answer requests. (See, Holguin v. Sup. Court (Hoage) (1972) 22
9 Cal.App. 3d 812, 826.) Edward McCutchan should ask Robert Zuckerman this question instead
10 of Plaintiff. Davis has not established that Plaintiff has sufficient personal or expert knowledge
11 about Robert Zuckerman's bankruptcy. As an offer of proof, Plaintiff did not file "a petition to
12 place Robert Zuckerman in a Chapter 7 no asset bankruptcy." That is a just another hearsay
13 statement fabricated by Edward McCutchan, which is false.
14
15 REQUEST FOR ADMISSION FIVE (5): Admit that Robert Edward Zuckerman, the
16
judgment debtor in Sonoma County Superior Court Case No. SCV-245738 as of July 1, 2018
17
and onward was unable to meet his obligations as they matured in the ordinary course of
18
business.
19 RESPONSE: Responding Party objects to this request as the terms "onward", "his
obligations", "they matured", "ordinary course of business", and "business" are undefined
20
and therefore are vague and ambiguous as used in this request. Responding Party further
21 objects to this request as overbroad since the time frame is vague.
22 Responding Party objects to this request for admission because there is a preface of
instructions and definitions at the beginning of the requesting document which violates Code
23
of Civil Procedure Section 2033.060(d).
24
Responding Party also objects to this request for admission because Responding Party is not a
25 bankruptcy lawyer and this request seeks admission of a legal matter and/or seeks a legal
26
conclusion, without reference to any fact, which is beyond the scope of discovery permitted by
Code of Civil Procedure Section 2033.010.
27
Without waiving the foregoing objections, Responding Party responds as follows: A
28
reasonable inquiry concerning the matter in the particular request has been made, and that
PLAINTIFF'S SEPARATE STATEMENT IN SUPPORT OF OPPOSITION - DAVIS
8
the information known or readily obtainable is insufficient to enable Responding Party to
1
admit or deny the matter. Discovery has not been completed and is continuing.
2
3 DAVIS: Why The Objection Should Be Overruled and Answered: Plaintiff, Richard
4 Abel in propria, has no damages as a matter of law as to any claims pertaining to Robert
5 Zuckerman in this action, and it was improper to either admit or deny the January 28, 2022 Order
6 of Discharge under 11 U.S.C. Section 727 that is part of this admission discovery motion where
7 plaintiff Richard Abel participated in Robert Zuckerman's bankruptcy matters (In re Robert
8 Zuckerman 613 B.R. 707 (9th Cir. BAP 2020), a published decision and Garretson v. Harold I.
9 Miller (2002) 99 Cal. App. 563, 569). California follows the majority rule that a malpractice
10 plaintiff must prove not only negligence on the part of his or her attorney but that careful
11 management of the case-within-a-case would have resulted in a favorable judgment “and
12 collection of same ….” Richard Abel is claiming in this action that despite being awarded
13 sizeable judgments in the Liebling action, he should have received more from claimed
14 assignments of dismissed plaintiffs despite not complying with the court's May 6,2021 order in
15 the Liebling action in filing a motion with the court to prove with competent evidence that he
16 obtained his claimed assignments from former plaintiffs before they were dismissed as plaintiffs
17 as they requested. See April 26, 2022 filed certified copy of the Order of Discharge dated
18 January 28, 2022 as to Robert Zuckerman filed in this action. Richard Abel was a judgment
19 creditor in Robert Zuckerman's bankruptcy who filed a petition to place Robert Zuckerman in a
20 Chapter 7 no asset bankruptcy needs to “admit” or “deny” this request. His objections are
21 without merit in that he received the initial mailing of this January 28, 2022 Order of Discharge
22 as to Robert Zuckerman from the bankruptcy court. Robert Zuckerman is insolvent.
23
PLAINTIFF: Why A Further Response Should NOT Be Ordered:
24 This Request does not comply with Code of Civil Procedure Section 2033.060(d) which
25 states that "Each request for admission shall be full and complete in and of itself. No preface or
26 instruction shall be included with a set of admission requests unless it has been approved under
27 Chapter 17." The preface and definitions used by Davis violates the Code.
28
PLAINTIFF'S SEPARATE STATEMENT IN SUPPORT OF OPPOSITION - DAVIS
9
1 Robert Zuckerman has never provided Plaintiff with a list of his obligations as of July 1,
2 2018 and onward, nor when they matured. The information is not reasonably available to
3 Plaintiff. (See, Lindgren v. Sup. Ct. (Lindgren) (1965) 237 Cal.App. 2d 743, 746.) Plaintiff has
4 no duty to make inquiry from independent witnesses (persons not his or her agents or employees)
5 in order to answer requests. (See, Holguin v. Sup. Court (Hoage) (1972) 22 Cal.App. 3d 812,
6 826.) McCutchan should ask Robert Zuckerman this question instead of Plaintiff.
7 Further, Edward McCutchan cut and pasted in the same argument again that has nothing
8 to do with what was asked by this request. This request did not ask anything about a “January
9 28, 2022 Order of Discharge.”
10 Davis has not established that Plaintiff has sufficient personal or expert knowledge about
11 Robert Zuckerman's obligations as of July 1, 2018 and onward, nor when they matured. Thus,
12 Plaintiff's response that he is unable to admit or deny the request is appropriate. Such response is
13 permitted pursuant to Code Civ. Proc. §2033.220(c). A discovery motion is not designed to
14 contest the truth of the responses, but only to compel a party to provide a code-compliant
15 response. Here, Plaintiff has provided a code-compliant response.
16
17 REQUEST FOR ADMISSION EIGHT (8): Admit that plaintiff Gary DeZorzi in Sonoma
18 County Superior Court Case No. SCV-245738 was dismissed as a party on September 11, 2012.
19 RESPONSE: Responding Party objects to this request for admission because there is a
20
preface of instructions and definitions at the beginning of the requesting document which
violates Code of Civil Procedure Section 2033.060(d).
21
Responding Party also objects to this request for admission because Responding Party is not a
22
lawyer and this request seeks admission of a legal matter and/or seeks a legal conclusion,
23 without reference to any fact, which is beyond the scope of discovery permitted by Code of
Civil Procedure Section 2033.010.
24
Responding Party objects to this request as the term "dismissed" is undefined and therefore is
25
vague and ambiguous as used in this request.
26
Without waiving the foregoing objections, Responding Party responds as follows: After a
27 reasonable inquiry concerning the matter, the information known or readily obtainable is
28
insufficient to enable Responding Party to admit or deny the matter. Discovery has not been
completed and is continuing.
PLAINTIFF'S SEPARATE STATEMENT IN SUPPORT OF OPPOSITION - DAVIS
10
1 DAVIS: Why The Objection Should Be Overruled and Answered: Richard Abel claims a
2 written assignment from Gary DeZorzi a former plaintiff in the Liebling action dated January
3 30, 2013 allegedly signed by Gary DeZorzi. However, Gary DeZorzi was dismissed in Liebling
4 v. Goodrich, Sonoma County Superior Court Case No. SCV-245738 on September 11, 2012 per
5 Exhibit "A" attached hereto. Richard Abel is pursuing a false claim as to an alleged assignment
6 from Gary DeZorzi where the inference is all of his other claims are false. Richard Abel needs
7 to "admit" or "deny" this request.
8 PLAINTIFF: Why A Further Response Should NOT Be Ordered:
9 This Request does not comply with Code of Civil Procedure Section 2033.060(d) which
10 states that "Each request for admission shall be full and complete in and of itself. No preface or
11 instruction shall be included with a set of admission requests unless it has been approved under
12 Chapter 17." The preface used by Davis violates the Code.
13 The term "dismissed" is vague and ambiguous because Davis did not define this term.
14 Davis did not specify whether Davis meant dismissal "with prejudice", or "without prejudice", or
15 "full dismissal", or "partial dismissal." The type and scope of a dismissal would have material
16
effect on any conclusion drawn from the response. Thus the question could not be answered as
17
framed, or the answer would be inaccurate.
18
Further, Edward McCutchan is the attorney in the Liebling Action. Plaintiff was only the
19
client. Plaintiff does not have personal knowledge of everything that Edward McCutchan did in
20
conducting the Liebling Action. Therefore Plaintiff would need to make an inquiry from the
21
same person (McCutchan) propounding the request. Edward McCutchan is misrepresenting here
22
that Gary DeZorzi was dismissed, but in fact Gary DeZorzi received an award in the April 2,
23
2014 judgment, and is a plaintiff in the September 28, 2014 Third Amended Complaint. The
24
Court's file for the Liebling Action is massive, and Plaintiff has no duty to search public records.
25
(Bunnell v. Sup. Court (1967) 254 Cal.App. 2d. 720, 723-724.) Edward McCutchan is pursuing a
26
false claim as to an alleged dismissal of Gary DeZorzi where the inference is that all Edward
27
McCutchan's other statements are false.
28
PLAINTIFF'S SEPARATE STATEMENT IN SUPPORT OF OPPOSITION - DAVIS
11
1 Davis has not established that Plaintiff has sufficient personal or expert knowledge about
2 Edward McCutchan's conduct in the Liebling Action. Thus, Plaintiff's response that he is unable
3 to admit or deny the request is appropriate given that Davis did not specify the type and scope of
4 dismissal. Such response is permitted pursuant to Code Civ. Proc. §2033.220(c). A discovery
5 motion is not designed to contest the truth of the responses, but only to compel a party to provide
6 a code-compliant response. Here, Plaintiff has provided a code-compliant response.
7
8
REQUEST FOR ADMISSION NINE (9): Admit that plaintiff Robert Gilman in Sonoma
9
County Superior Court Case No. SCV-245738 was dismissed as a party on September 11, 2012.
10
RESPONSE: Responding Party objects to this request for admission because there is a
11
preface of instructions and definitions at the beginning of the requesting document which
12 violates Code of Civil Procedure Section 2033.060(d).
13
Responding Party also objects to this request for admission because Responding Party is not a
14 lawyer and this request seeks admission of a legal matter and/or seeks a legal conclusion,
without reference to any fact, which is beyond the scope of discovery permitted by Code of
15 Civil Procedure Section 2033.010.
16
Responding Party objects to this request as the term "dismissed" is undefined and therefore is
17 vague and ambiguous as used in this request.
18 Without waiving the foregoing objections, Responding Party responds as follows: After a
19
reasonable inquiry concerning the matter, the information known or readily obtainable is
insufficient to enable Responding Party to admit or deny the matter. Discovery has not been
20 completed and is continuing.
21 DAVIS: Why The Objection Should Be Overruled and Answered: Richard Abel claims a
22 written assignment from Gary Robert Gilman a former plaintiff in the Liebling action dated
23 February 22, 2013 allegedly signed by Robert Gilman. However, Robert Gilman was
24 dismissed in Liebling v. Goodrich, Sonoma County Superior Court Case No. SCV-245738 on
25 September 11, 2012 per Exhibit "A" attached hereto. Richard Abel is pursuing a false claim as
26 to an alleged assignment from Robert Gilman where the inference is all of his other claims are
27 false. Richard Abel needs to "admit" or "deny" this request.
28 PLAINTIFF: Why A Further Response Should NOT Be Ordered:
PLAINTIFF'S SEPARATE STATEMENT IN SUPPORT OF OPPOSITION - DAVIS
12
1 This Request does not comply with Code of Civil Procedure Section 2033.060(d) which
2 states that "Each request for admission shall be full and complete in and of itself. No preface or
3 instruction shall be included with a set of admission requests unless it has been approved under
4 Chapter 17." The preface used by Davis violates the Code.
5 The term "dismissed" is vague and ambiguous because Davis did not define this term.
6 Davis did not specify whether Davis meant dismissal "with prejudice", or "without prejudice", or
7 "full dismissal", or "partial dismissal." The type and scope of a dismissal would have material
8 effect on any conclusion drawn from the response. Thus the question could not be answered as
9 framed, or the answer would be inaccurate.
10 Further, Edward McCutchan is the attorney in the Liebling Action. Plaintiff was only the
11 client. Plaintiff does not have personal knowledge of everything that Edward McCutchan did in
12 conducting the Liebling Action. Therefore Plaintiff would need to make an inquiry from the
13 same person (McCutchan) propounding the request. Edward McCutchan is misrepresenting here
14 that Robert Gilman was dismissed, but in fact Robert Gilman received an award in the April 2,
15 2014 judgment, and is a plaintiff in the September 28, 2014 Third Amended Complaint. The
16
Court's file for the Liebling Action is massive, and Plaintiff has no duty to search public records.
17
(Bunnell v. Sup. Court (1967) 254 Cal.App. 2d. 720, 723-724.) Edward McCutchan is pursuing a
18
false claim as to an alleged dismissal of Robert Gilman where the inference is that all Edward
19
McCutchan's other statements are false.
20
Davis has not established that Plaintiff has sufficient personal or expert knowledge about
21
Edward McCutchan's conduct in the Liebling Action. Thus, Plaintiff's response that he is unable
22
to admit or deny the request is appropriate given that Davis did not specify the type and scope of
23
dismissal. Such response is permitted pursuant to Code Civ. Proc. §2033.220(c). A discovery
24
motion is not designed to contest the truth of the responses, but only to compel a party to provide
25
a code-compliant response. Here, Plaintiff has provided a code-compliant response.
26
27 REQUEST FOR ADMISSION TEN (10): Admit that Exhibit "1" attached hereto is a true and
28 correct copy of the January 28, 2022 the United States Bankruptcy Court in and for the Central
PLAINTIFF'S SEPARATE STATEMENT IN SUPPORT OF OPPOSITION - DAVIS
13
1 District of California issued an order of discharge in case # 1:18-bk-11150-VK as to Robert
2 Edward Zuckerman aka Bob Zuckerman under 11 U.S.C. section 727.
3
RESPONSE: Responding Party objects to this request for admission because there is a
4 preface of instructions and definitions at the beginning of the requesting document which
violates Code of Civil Procedure Section 2033.060(d).
5
6 Responding Party also objects to this request for admission because Responding Party is not a
bankruptcy lawyer and this request seeks admission of a legal matter and/or seeks a legal
7 conclusion, without reference to any fact, which is beyond the scope of discovery permitted by
Code of Civil Procedure Section 2033.010.
8
9 Without waiving the foregoing objections, Responding Party responds as follows: The
information requested is a public record that may be obtained from the Bankruptcy Court
10 directly, and thus is information equally available to Propounding Party. Discovery has not
11 been completed and is continuing.
12 DAVIS: Why The Objection Should Be Overruled and Answered: Plaintiff, Richard
13 Abel in propria, has no damages as a matter of law as to any claims pertaining to Robert
14 Zuckerman in this action, and it was improper to either admit or deny the January 28, 2022 Order
15 of Discharge under 11 U.S.C. Section 727 that is part of this admission discovery motion where
16 plaintiff Richard Abel participated in Robert Zuckerman's bankruptcy matters (In re Robert
17 Zuckerman 613 B.R. 707 (9th Cir. BAP 2020), a published decision and Garretson v. Harold I.
18 Miller (2002) 99 Cal. App. 563, 569). California follows the majority rule that a malpractice
19 plaintiff must prove not only negligence on the part of his or her attorney but that careful
20 management of the case-within-a-case would have resulted in a favorable judgment “and
21 collection of same ….” Richard Abel is claiming in this action that despite being awarded
22 sizeable judgments in the Liebling action, he should have received more from claimed
23 assignments of dismissed plaintiffs despite not complying with the court's May 6,2021 order in
24 the Liebling action in filing a motion with the court to prove with competent evidence that he
25 obtained his claimed assignments from former plaintiffs before they were dismissed as plaintiffs
26 as they requested. See April 26, 2022 filed certified copy of the Order of Discharge dated
27 January 28, 2022 as to Robert Zuckerman filed in this action. Richard Abel was a judgment
28 creditor in Robert Zuckerman's bankruptcy who filed a petition to place Robert Zuckerman in a
PLAINTIFF'S SEPARATE STATEMENT IN SUPPORT OF OPPOSITION - DAVIS
14
1 Chapter 7 no asset bankruptcy needs to “admit” or “deny” this request. His objections are
2 without merit in that he received the initial mailing of this January 28, 2022 Order of Discharge
3 as to Robert Zuckerman from the bankruptcy court. Robert Zuckerman is insolvent.
4 PLAINTIFF: Why A Further Response Should NOT Be Ordered:
5 This Request does not comply with Code of Civil Procedure Section 2033.060(d) which
6 states that "Each request for admission shall be full and complete in and of itself. No preface or
7 instruction shall be included with a set of admission requests unless it has been approved under
8 Chapter 17." The preface and definitions used by Davis violate the Code.
9 McCutchan failed and refused to make the original of the request's Exhibit "1" available
10 for inspection by Plaintiff, as required by Code of Civ. Proc. §2033.060(g).
11 The information requested is a public record that is equally available to Davis. There is
12 no duty on the part of Plaintiff to search out matters of public record. When the information
13 sought is equally available to the propounder of the interrogatory, the burden and expense of any
14 research which may be required should be born by the party seeking the information. (See,
15 Bunnell v. Sup.Court (1967) 254 Cal.App. 2d. 720, 723-724.) Edward McCutchan may obtain
16
the same information by making a trip to Los Angeles and searching the bankruptcy court's
17
records for himself. Plaintiff is not expected to travel to Los Angeles to searc
Preview
Richard Abel 1 707 Hahman Drive No. 9301 2 Santa Rosa, CA 95405 Telephone: (707) 340-3894 3 4 Plaintiff, in pro per 5 6 7 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 FOR THE COUNTY OF SONOMA 10 11 RICHARD ABEL, an individual; Case Number: SCV-263456 12 Plaintiff; PLAINTIFF'S SEPARATE STATEMENT IN 13 SUPPORT OF PLAINTIFF'S OPPOSITION v. TO THE MOTION TO COMPEL BY 14 DEFENDANT DALE DAVIS B. EDWARD McCUTCHAN JR. an 15 individual; SUNDERLAND/McCUTCHAN, 16 LLP, a general partnership; and DOES 1 Date: September 12, 2022 through 100, inclusive; Time: 1:30 p.m. 17 Dept: 13 - Hon. Christopher Honigsberg Defendants. Trial: January 13, 2022 18 19 TO THE COURT, ALL PARTIES AND THEIR ATTORNEYS OF RECORD: 20 This separate statement is hereby submitted by Plaintiff Richard Abel ("Plaintiff") 21 in support of his opposition to the motion to compel "complete" responses to Requests for 22 Admission, Set One by defendant Dale Davis' ("Davis") 23 I. 24 THE PREFACE 25 A preface of definitions was included in the Requests for Admissions served by Davis. 26 This is set forth verbatim here:: 27 “Defendant Dale Davis hereby requests you to admit the truth of each of the following requests for admissions in the manner prescribed by Code of Civil Procedure Section 2033.010 28 et seq., within thirty (30) days of service of this request. PLAINTIFF'S SEPARATE STATEMENT IN SUPPORT OF OPPOSITION - DAVIS 1 NOTICE that pursuant to Code of Civil Procedure Section 2033, if the responding party 1 to a request for admission fails to admit the truth of any matter when requested to do so, and the 2 party requesting the admission therafter proves the truth of the matter, the party requesting the admission may move the court for an order requiring the party to whom the request was directed 3 to pay the reasonable expenses incurred in making that proof, including reasonable attorney's 4 fees. DEFINITIONS 5 6 1. The word DOCUMENT means a writing, as defined in Evidence Code § 250, and includes the original or copy of handwriting, typewriting, printing, photostating, 7 photographing, and every other means of recording upon any tangible thing and form of communicating or representation, including letters, words, pictures, sounds, symbols, or 8 combinations thereof. 9 2. The word YOU and YOURS refer to Plaintiff, Richard Abel, his agents, and anyone else acting on his behalf. 10 3. The word PROPOUNDING PARTY refers to Defendant, Dale Davis. 11 4. The word PERSON(S) includes a natural person, corporation, association, partnership, sole proprietorship, or public entity. 12 5. The word IDENTIFY means, regarding an individual or entity to set forth the full name, current or last known business or residential address, and current or last known business 13 or residential telephone number, and regarding a documents, means to identify the date, author, 14 recipient, and subject matter of the document. 6. The word INSOLVENT means, excess of liabilities over assets." 15 16 PLAINTIFF: Why A Further Response Should NOT Be Ordered: Code of Civil Procedure Section 2033.060(d) does not permit such a preface. Plaintiff's 17 objection as to form, is proper and should be sustained. 18 II 19 THE RESPONSES TO THE REQUESTS: 20 REQUEST FOR ADMISSION ONE (1): Admit that on January 28, 2022 the United States 21 Bankruptcy Court in and for the Central District of California issued an order of discharge in 22 case # 1:18-bk-11150-VK as to Robert Edward Zuckerman aka Bob Zuckerman under 11 I.S.C. 23 section 727. 24 RESPONSE: Responding Party objects to this request for admission because there is a 25 preface of instructions and definitions at the beginning of the requesting document which violates Code of Civil Procedure Section 2033.060(d). 26 27 Responding Party also objects to this request for admission because Responding Party is not a bankruptcy lawyer and this request seeks admission of a legal matter and/or seeks a legal 28 conclusion, without reference to any fact, which is beyond the scope of discovery permitted by PLAINTIFF'S SEPARATE STATEMENT IN SUPPORT OF OPPOSITION - DAVIS 2 Code of Civil Procedure Section 2033.010. 1 2 Without waiving the foregoing objections, Responding Party responds as follows: The information requested is a public record that may be obtained from the Bankruptcy Court 3 directly, and thus is information equally available to Propounding Party. Discovery has not 4 been completed and is continuing. 5 DAVIS: Why The Objection Should Be Overruled and Answered: Plaintiff, Richard 6 Abel in propria, has no damages as a matter of law as to any claims pertaining to Robert 7 Zuckerman in this action, and it was improper to either admit or deny the January 28, 2022 Order 8 of Discharge under 11 U.S.C. Section 727 that is part of this admission discovery motion where 9 plaintiff Richard Abel participated in Robert Zuckerman's bankruptcy matters (In re Robert 10 Zuckerman 613 B.R. 707 (9th Cir. BAP 2020), a published decision and Garretson v. Harold I. 11 Miller (2002) 99 Cal. App. 563, 569). California follows the majority rule that a malpractice 12 plaintiff must prove not only negligence on the part of his or her attorney but that careful 13 management of the case-within-a-case would have resulted in a favorable judgment “and 14 collection of same ….” Richard Abel is claiming in this action that despite being awarded 15 sizeable judgments in the Liebling action, he should have received more from claimed 16 assignments of dismissed plaintiffs despite not complying with the court's May 6,2021 order in 17 the Liebling action in filing a motion with the court to prove with competent evidence that he 18 obtained his claimed assignments from former plaintiffs before they were dismissed as plaintiffs 19 as they requested. See April 26, 2022 filed certified copy of the Order of Discharge dated 20 January 28, 2022 as to Robert Zuckerman filed in this action. Richard Abel was a judgment 21 creditor in Robert Zuckerman's bankruptcy who filed a petition to place Robert Zuckerman in a 22 Chapter 7 no asset bankruptcy needs to “admit” or “deny” this request. His objections are 23 without merit in that he received the initial mailing of this January 28, 2022 Order of Discharge 24 as to Robert Zuckerman from the bankruptcy court. Robert Zuckerman is insolvent. 25 PLAINTIFF: Why A Further Response Should NOT Be Ordered: 26 This Request does not comply with Code of Civil Procedure Section 2033.060(d) which 27 states that "Each request for admission shall be full and complete in and of itself. No preface or 28 instruction shall be included with a set of admission requests unless it has been approved under PLAINTIFF'S SEPARATE STATEMENT IN SUPPORT OF OPPOSITION - DAVIS 3 1 Chapter 17." The preface and definitions used by Davis violate the Code. 2 The information requested is a public record that is equally available to Davis. There is 3 no duty on the part of Plaintiff to search out matters of public record. When the information 4 sought is equally available to the propounder of the interrogatory, the burden and expense of any 5 research which may be required should be born by the party seeking the information. (See, 6 Bunnell v. Sup.Court (1967) 254 Cal.App. 2d. 720, 723-724.) Edward McCutchan may obtain 7 the same information by making a trip to Los Angeles and searching the bankruptcy court's 8 records for himself. Plaintiff is not expected to travel to Los Angeles to search out matters of 9 public record. (See, Lindgren v. Sup. Ct. (Lindgren) (1965) 237 Cal.App. 2d 743, 746.) 10 Plaintiff has no duty to make inquiry from independent witnesses (persons not his or her 11 agents or employees) in order to answer requests. (See, Holguin v. Sup. Court (Hoage) (1972) 22 12 Cal.App. 3d 812, 826.) Edward McCutchan should ask Robert Zuckerman this question instead 13 of Plaintiff. Davis has not established that Plaintiff has sufficient personal or expert knowledge 14 about Robert Zuckerman's bankruptcy case. Plaintiff cannot verify the truth of documents in the 15 bankruptcy court filed by Robert Zuckerman or his lawyers. 16 REQUEST FOR ADMISSION TWO (2): Admit that Robert Edward Zuckerman, the 17 judgment debtor in Sonoma County Superior Court Case No. SCV-245738 had liabilities greater 18 than his assets as of July 1, 2018 and onward. 19 RESPONSE: Responding Party objects to this request as the terms "his assets" and 20 "onward" are undefined and therefore vague and ambiguous as used in this request. 21 Responding Party further objects to this request as overbroad since the time frame is vague. 22 Responding Party objects to this request for admission because there is a preface of instructions and definitions at the beginning of the requesting document which violates Code 23 of Civil Procedure Section 2033.060(d). 24 Responding Party also objects to this request for admission because Responding Party is not a 25 bankruptcy lawyer and this request seeks admission of a legal matter and/or seeks a legal conclusion, without reference to any fact, which is beyond the scope of discovery permitted by 26 Code of Civil Procedure Section 2033.010. 27 Without waiving the foregoing objections, Responding Party responds as follows: A 28 reasonable inquiry concerning the matter in the particular request has been made, and that PLAINTIFF'S SEPARATE STATEMENT IN SUPPORT OF OPPOSITION - DAVIS 4 the information known or readily obtainable is insufficient to enable Responding Party to 1 admit or deny the matter. Discovery has not been completed and is continuing. 2 DAVIS: Why The Objection Should Be Overruled and Answered: Plaintiff, Richard 3 Abel in propria, has no damages as a matter of law as to any claims pertaining to Robert 4 Zuckerman in this action, and it was improper to either admit or deny the January 28, 2022 Order 5 of Discharge under 11 U.S.C. Section 727 that is part of this admission discovery motion where 6 plaintiff Richard Abel participated in Robert Zuckerman's bankruptcy matters (In re Robert 7 Zuckerman 613 B.R. 707 (9th Cir. BAP 2020), a published decision and Garretson v. Harold I. 8 Miller (2002) 99 Cal. App. 563, 569). California follows the majority rule that a malpractice 9 plaintiff must prove not only negligence on the part of his or her attorney but that careful 10 management of the case-within-a-case would have resulted in a favorable judgment “and 11 collection of same ….” Richard Abel is claiming in this action that despite being awarded 12 sizeable judgments in the Liebling action, he should have received more from claimed 13 assignments of dismissed plaintiffs despite not complying with the court's May 6,2021 order in 14 the Liebling action in filing a motion with the court to prove with competent evidence that he 15 obtained his claimed assignments from former plaintiffs before they were dismissed as plaintiffs 16 as they requested. See April 26, 2022 filed certified copy of the Order of Discharge dated 17 January 28, 2022 as to Robert Zuckerman filed in this action. Richard Abel was a judgment 18 creditor in Robert Zuckerman's bankruptcy who filed a petition to place Robert Zuckerman in a 19 Chapter 7 no asset bankruptcy needs to “admit” or “deny” this request. His objections are 20 without merit in that he received the initial mailing of this January 28, 2022 Order of Discharge 21 as to Robert Zuckerman from the bankruptcy court. Robert Zuckerman is insolvent. 22 PLAINTIFF: Why A Further Response Should NOT Be Ordered: 23 This Request does not comply with Code of Civil Procedure Section 2033.060(d) which 24 states that "Each request for admission shall be full and complete in and of itself. No preface or 25 instruction shall be included with a set of admission requests unless it has been approved under 26 Chapter 17." The preface and definitions used by Davis violates the Code. 27 Robert Zuckerman has never provided Plaintiff with a list of his liabilities as of July 1, 28 PLAINTIFF'S SEPARATE STATEMENT IN SUPPORT OF OPPOSITION - DAVIS 5 1 2018 and onward. The information is not reasonably available to Plaintiff. (See, Lindgren v. 2 Sup. Ct. (Lindgren) (1965) 237 Cal.App. 2d 743, 746.) Plaintiff has no duty to make inquiry 3 from independent witnesses (persons not his or her agents or employees) in order to answer 4 requests. (See, Holguin v. Sup. Court (Hoage) (1972) 22 Cal.App. 3d 812, 826.) Edward 5 McCutchan should ask Robert Zuckerman this question instead of asking Plaintiff. 6 Further, Edward McCutchan cut and pasted in the same argument that has nothing to do 7 with what was asked by this request. This request did not ask anything about a “January 28, 8 2022 Order of Discharge.” 9 Davis has not established that Plaintiff has sufficient personal or expert knowledge about 10 Robert Zuckerman's liabilities or assets as of July 1, 2018 and onward. Thus, Plaintiff's response 11 that he is unable to admit or deny the request is appropriate. Such response is permitted pursuant 12 to Code Civ. Proc. §2033.220(c). A discovery motion is not designed to contest the truth of the 13 responses, but only to compel a party to provide a code-compliant response. Here, Plaintiff has 14 provided a code-compliant response. 15 16 REQUEST FOR ADMISSION THREE (3): Admit that on March 9, 2019 Robert Edward 17 Zuckerman's bankruptcy in the United States Bankruptcy Court in and for the Central District of 18 California in case # 1:18-bk-11150-VK was converted to a Chapter 7. 19 RESPONSE: Responding Party objects to this request for admission because there is a 20 preface of instructions and definitions at the beginning of the requesting document which violates Code of Civil Procedure Section 2033.060(d). 21 Responding Party also objects to this request for admission because Responding Party is not a 22 bankruptcy lawyer and this request seeks admission of a legal matter and/or seeks a legal 23 conclusion, without reference to any fact, which is beyond the scope of discovery permitted by Code of Civil Procedure Section 2033.010. 24 Without waiving the foregoing objections, Responding Party responds as follows: The 25 information requested is a public record that may be obtained from the Bankruptcy Court 26 directly, and thus is information equally available to Propounding Party. Discovery has not been completed and is continuing. 27 DAVIS: Why The Objection Should Be Overruled and Answered: Plaintiff, Richard 28 Abel in propria, has no damages as a matter of law as to any claims pertaining to Robert PLAINTIFF'S SEPARATE STATEMENT IN SUPPORT OF OPPOSITION - DAVIS 6 1 Zuckerman in this action, and it was improper to either admit or deny the January 28, 2022 Order 2 of Discharge under 11 U.S.C. Section 727 that is part of this admission discovery motion where 3 plaintiff Richard Abel participated in Robert Zuckerman's bankruptcy matters (In re Robert 4 Zuckerman 613 B.R. 707 (9th Cir. BAP 2020), a published decision and Garretson v. Harold I. 5 Miller (2002) 99 Cal. App. 563, 569). California follows the majority rule that a malpractice 6 plaintiff must prove not only negligence on the part of his or her attorney but that careful 7 management of the case-within-a-case would have resulted in a favorable judgment “and 8 collection of same ….” Richard Abel is claiming in this action that despite being awarded 9 sizeable judgments in the Liebling action, he should have received more from claimed 10 assignments of dismissed plaintiffs despite not complying with the court's May 6,2021 order in 11 the Liebling action in filing a motion with the court to prove with competent evidence that he 12 obtained his claimed assignments from former plaintiffs before they were dismissed as plaintiffs 13 as they requested. See April 26, 2022 filed certified copy of the Order of Discharge dated 14 January 28, 2022 as to Robert Zuckerman filed in this action. Richard Abel was a judgment 15 creditor in Robert Zuckerman's bankruptcy who filed a petition to place Robert Zuckerman in 16 a Chapter 7 no asset bankruptcy needs to “admit” or “deny” this request. His objections are 17 without merit in that he received the initial mailing of this January 28, 2022 Order of Discharge 18 as to Robert Zuckerman from the bankruptcy court. Robert Zuckerman is insolvent. 19 PLAINTIFF: Why A Further Response Should NOT Be Ordered: 20 This Request does not comply with Code of Civil Procedure Section 2033.060(d) which 21 states that "Each request for admission shall be full and complete in and of itself. No preface or 22 instruction shall be included with a set of admission requests unless it has been approved under 23 Chapter 17." The preface and definitions used by Davis violate the Code. 24 Edward McCutchan cut and pasted in the same argument that has nothing to do with what 25 was asked by this request. This request did not ask about a "January 28, 2022 Order of 26 Discharge." 27 The information requested is a public record that is equally available to Davis. There is 28 no duty on the part of Plaintiff to search out matters of public record. When the information PLAINTIFF'S SEPARATE STATEMENT IN SUPPORT OF OPPOSITION - DAVIS 7 1 sought is equally available to the propounder of the interrogatory, the burden and expense of any 2 research which may be required should be born by the party seeking the information. (See, 3 Bunnell v. Sup.Court (1967) 254 Cal.App. 2d. 720, 723-724.) Edward McCutchan may obtain 4 the same information by making a trip to Los Angeles and searching the bankruptcy court's 5 records for himself. Plaintiff is not expected to travel to Los Angeles to search out matters of 6 public record. (See, Lindgren v. Sup. Ct. (Lindgren) (1965) 237 Cal.App. 2d 743, 746.) 7 Plaintiff has no duty to make inquiry from independent witnesses (persons not his or her 8 agents or employees) in order to answer requests. (See, Holguin v. Sup. Court (Hoage) (1972) 22 9 Cal.App. 3d 812, 826.) Edward McCutchan should ask Robert Zuckerman this question instead 10 of Plaintiff. Davis has not established that Plaintiff has sufficient personal or expert knowledge 11 about Robert Zuckerman's bankruptcy. As an offer of proof, Plaintiff did not file "a petition to 12 place Robert Zuckerman in a Chapter 7 no asset bankruptcy." That is a just another hearsay 13 statement fabricated by Edward McCutchan, which is false. 14 15 REQUEST FOR ADMISSION FIVE (5): Admit that Robert Edward Zuckerman, the 16 judgment debtor in Sonoma County Superior Court Case No. SCV-245738 as of July 1, 2018 17 and onward was unable to meet his obligations as they matured in the ordinary course of 18 business. 19 RESPONSE: Responding Party objects to this request as the terms "onward", "his obligations", "they matured", "ordinary course of business", and "business" are undefined 20 and therefore are vague and ambiguous as used in this request. Responding Party further 21 objects to this request as overbroad since the time frame is vague. 22 Responding Party objects to this request for admission because there is a preface of instructions and definitions at the beginning of the requesting document which violates Code 23 of Civil Procedure Section 2033.060(d). 24 Responding Party also objects to this request for admission because Responding Party is not a 25 bankruptcy lawyer and this request seeks admission of a legal matter and/or seeks a legal 26 conclusion, without reference to any fact, which is beyond the scope of discovery permitted by Code of Civil Procedure Section 2033.010. 27 Without waiving the foregoing objections, Responding Party responds as follows: A 28 reasonable inquiry concerning the matter in the particular request has been made, and that PLAINTIFF'S SEPARATE STATEMENT IN SUPPORT OF OPPOSITION - DAVIS 8 the information known or readily obtainable is insufficient to enable Responding Party to 1 admit or deny the matter. Discovery has not been completed and is continuing. 2 3 DAVIS: Why The Objection Should Be Overruled and Answered: Plaintiff, Richard 4 Abel in propria, has no damages as a matter of law as to any claims pertaining to Robert 5 Zuckerman in this action, and it was improper to either admit or deny the January 28, 2022 Order 6 of Discharge under 11 U.S.C. Section 727 that is part of this admission discovery motion where 7 plaintiff Richard Abel participated in Robert Zuckerman's bankruptcy matters (In re Robert 8 Zuckerman 613 B.R. 707 (9th Cir. BAP 2020), a published decision and Garretson v. Harold I. 9 Miller (2002) 99 Cal. App. 563, 569). California follows the majority rule that a malpractice 10 plaintiff must prove not only negligence on the part of his or her attorney but that careful 11 management of the case-within-a-case would have resulted in a favorable judgment “and 12 collection of same ….” Richard Abel is claiming in this action that despite being awarded 13 sizeable judgments in the Liebling action, he should have received more from claimed 14 assignments of dismissed plaintiffs despite not complying with the court's May 6,2021 order in 15 the Liebling action in filing a motion with the court to prove with competent evidence that he 16 obtained his claimed assignments from former plaintiffs before they were dismissed as plaintiffs 17 as they requested. See April 26, 2022 filed certified copy of the Order of Discharge dated 18 January 28, 2022 as to Robert Zuckerman filed in this action. Richard Abel was a judgment 19 creditor in Robert Zuckerman's bankruptcy who filed a petition to place Robert Zuckerman in a 20 Chapter 7 no asset bankruptcy needs to “admit” or “deny” this request. His objections are 21 without merit in that he received the initial mailing of this January 28, 2022 Order of Discharge 22 as to Robert Zuckerman from the bankruptcy court. Robert Zuckerman is insolvent. 23 PLAINTIFF: Why A Further Response Should NOT Be Ordered: 24 This Request does not comply with Code of Civil Procedure Section 2033.060(d) which 25 states that "Each request for admission shall be full and complete in and of itself. No preface or 26 instruction shall be included with a set of admission requests unless it has been approved under 27 Chapter 17." The preface and definitions used by Davis violates the Code. 28 PLAINTIFF'S SEPARATE STATEMENT IN SUPPORT OF OPPOSITION - DAVIS 9 1 Robert Zuckerman has never provided Plaintiff with a list of his obligations as of July 1, 2 2018 and onward, nor when they matured. The information is not reasonably available to 3 Plaintiff. (See, Lindgren v. Sup. Ct. (Lindgren) (1965) 237 Cal.App. 2d 743, 746.) Plaintiff has 4 no duty to make inquiry from independent witnesses (persons not his or her agents or employees) 5 in order to answer requests. (See, Holguin v. Sup. Court (Hoage) (1972) 22 Cal.App. 3d 812, 6 826.) McCutchan should ask Robert Zuckerman this question instead of Plaintiff. 7 Further, Edward McCutchan cut and pasted in the same argument again that has nothing 8 to do with what was asked by this request. This request did not ask anything about a “January 9 28, 2022 Order of Discharge.” 10 Davis has not established that Plaintiff has sufficient personal or expert knowledge about 11 Robert Zuckerman's obligations as of July 1, 2018 and onward, nor when they matured. Thus, 12 Plaintiff's response that he is unable to admit or deny the request is appropriate. Such response is 13 permitted pursuant to Code Civ. Proc. §2033.220(c). A discovery motion is not designed to 14 contest the truth of the responses, but only to compel a party to provide a code-compliant 15 response. Here, Plaintiff has provided a code-compliant response. 16 17 REQUEST FOR ADMISSION EIGHT (8): Admit that plaintiff Gary DeZorzi in Sonoma 18 County Superior Court Case No. SCV-245738 was dismissed as a party on September 11, 2012. 19 RESPONSE: Responding Party objects to this request for admission because there is a 20 preface of instructions and definitions at the beginning of the requesting document which violates Code of Civil Procedure Section 2033.060(d). 21 Responding Party also objects to this request for admission because Responding Party is not a 22 lawyer and this request seeks admission of a legal matter and/or seeks a legal conclusion, 23 without reference to any fact, which is beyond the scope of discovery permitted by Code of Civil Procedure Section 2033.010. 24 Responding Party objects to this request as the term "dismissed" is undefined and therefore is 25 vague and ambiguous as used in this request. 26 Without waiving the foregoing objections, Responding Party responds as follows: After a 27 reasonable inquiry concerning the matter, the information known or readily obtainable is 28 insufficient to enable Responding Party to admit or deny the matter. Discovery has not been completed and is continuing. PLAINTIFF'S SEPARATE STATEMENT IN SUPPORT OF OPPOSITION - DAVIS 10 1 DAVIS: Why The Objection Should Be Overruled and Answered: Richard Abel claims a 2 written assignment from Gary DeZorzi a former plaintiff in the Liebling action dated January 3 30, 2013 allegedly signed by Gary DeZorzi. However, Gary DeZorzi was dismissed in Liebling 4 v. Goodrich, Sonoma County Superior Court Case No. SCV-245738 on September 11, 2012 per 5 Exhibit "A" attached hereto. Richard Abel is pursuing a false claim as to an alleged assignment 6 from Gary DeZorzi where the inference is all of his other claims are false. Richard Abel needs 7 to "admit" or "deny" this request. 8 PLAINTIFF: Why A Further Response Should NOT Be Ordered: 9 This Request does not comply with Code of Civil Procedure Section 2033.060(d) which 10 states that "Each request for admission shall be full and complete in and of itself. No preface or 11 instruction shall be included with a set of admission requests unless it has been approved under 12 Chapter 17." The preface used by Davis violates the Code. 13 The term "dismissed" is vague and ambiguous because Davis did not define this term. 14 Davis did not specify whether Davis meant dismissal "with prejudice", or "without prejudice", or 15 "full dismissal", or "partial dismissal." The type and scope of a dismissal would have material 16 effect on any conclusion drawn from the response. Thus the question could not be answered as 17 framed, or the answer would be inaccurate. 18 Further, Edward McCutchan is the attorney in the Liebling Action. Plaintiff was only the 19 client. Plaintiff does not have personal knowledge of everything that Edward McCutchan did in 20 conducting the Liebling Action. Therefore Plaintiff would need to make an inquiry from the 21 same person (McCutchan) propounding the request. Edward McCutchan is misrepresenting here 22 that Gary DeZorzi was dismissed, but in fact Gary DeZorzi received an award in the April 2, 23 2014 judgment, and is a plaintiff in the September 28, 2014 Third Amended Complaint. The 24 Court's file for the Liebling Action is massive, and Plaintiff has no duty to search public records. 25 (Bunnell v. Sup. Court (1967) 254 Cal.App. 2d. 720, 723-724.) Edward McCutchan is pursuing a 26 false claim as to an alleged dismissal of Gary DeZorzi where the inference is that all Edward 27 McCutchan's other statements are false. 28 PLAINTIFF'S SEPARATE STATEMENT IN SUPPORT OF OPPOSITION - DAVIS 11 1 Davis has not established that Plaintiff has sufficient personal or expert knowledge about 2 Edward McCutchan's conduct in the Liebling Action. Thus, Plaintiff's response that he is unable 3 to admit or deny the request is appropriate given that Davis did not specify the type and scope of 4 dismissal. Such response is permitted pursuant to Code Civ. Proc. §2033.220(c). A discovery 5 motion is not designed to contest the truth of the responses, but only to compel a party to provide 6 a code-compliant response. Here, Plaintiff has provided a code-compliant response. 7 8 REQUEST FOR ADMISSION NINE (9): Admit that plaintiff Robert Gilman in Sonoma 9 County Superior Court Case No. SCV-245738 was dismissed as a party on September 11, 2012. 10 RESPONSE: Responding Party objects to this request for admission because there is a 11 preface of instructions and definitions at the beginning of the requesting document which 12 violates Code of Civil Procedure Section 2033.060(d). 13 Responding Party also objects to this request for admission because Responding Party is not a 14 lawyer and this request seeks admission of a legal matter and/or seeks a legal conclusion, without reference to any fact, which is beyond the scope of discovery permitted by Code of 15 Civil Procedure Section 2033.010. 16 Responding Party objects to this request as the term "dismissed" is undefined and therefore is 17 vague and ambiguous as used in this request. 18 Without waiving the foregoing objections, Responding Party responds as follows: After a 19 reasonable inquiry concerning the matter, the information known or readily obtainable is insufficient to enable Responding Party to admit or deny the matter. Discovery has not been 20 completed and is continuing. 21 DAVIS: Why The Objection Should Be Overruled and Answered: Richard Abel claims a 22 written assignment from Gary Robert Gilman a former plaintiff in the Liebling action dated 23 February 22, 2013 allegedly signed by Robert Gilman. However, Robert Gilman was 24 dismissed in Liebling v. Goodrich, Sonoma County Superior Court Case No. SCV-245738 on 25 September 11, 2012 per Exhibit "A" attached hereto. Richard Abel is pursuing a false claim as 26 to an alleged assignment from Robert Gilman where the inference is all of his other claims are 27 false. Richard Abel needs to "admit" or "deny" this request. 28 PLAINTIFF: Why A Further Response Should NOT Be Ordered: PLAINTIFF'S SEPARATE STATEMENT IN SUPPORT OF OPPOSITION - DAVIS 12 1 This Request does not comply with Code of Civil Procedure Section 2033.060(d) which 2 states that "Each request for admission shall be full and complete in and of itself. No preface or 3 instruction shall be included with a set of admission requests unless it has been approved under 4 Chapter 17." The preface used by Davis violates the Code. 5 The term "dismissed" is vague and ambiguous because Davis did not define this term. 6 Davis did not specify whether Davis meant dismissal "with prejudice", or "without prejudice", or 7 "full dismissal", or "partial dismissal." The type and scope of a dismissal would have material 8 effect on any conclusion drawn from the response. Thus the question could not be answered as 9 framed, or the answer would be inaccurate. 10 Further, Edward McCutchan is the attorney in the Liebling Action. Plaintiff was only the 11 client. Plaintiff does not have personal knowledge of everything that Edward McCutchan did in 12 conducting the Liebling Action. Therefore Plaintiff would need to make an inquiry from the 13 same person (McCutchan) propounding the request. Edward McCutchan is misrepresenting here 14 that Robert Gilman was dismissed, but in fact Robert Gilman received an award in the April 2, 15 2014 judgment, and is a plaintiff in the September 28, 2014 Third Amended Complaint. The 16 Court's file for the Liebling Action is massive, and Plaintiff has no duty to search public records. 17 (Bunnell v. Sup. Court (1967) 254 Cal.App. 2d. 720, 723-724.) Edward McCutchan is pursuing a 18 false claim as to an alleged dismissal of Robert Gilman where the inference is that all Edward 19 McCutchan's other statements are false. 20 Davis has not established that Plaintiff has sufficient personal or expert knowledge about 21 Edward McCutchan's conduct in the Liebling Action. Thus, Plaintiff's response that he is unable 22 to admit or deny the request is appropriate given that Davis did not specify the type and scope of 23 dismissal. Such response is permitted pursuant to Code Civ. Proc. §2033.220(c). A discovery 24 motion is not designed to contest the truth of the responses, but only to compel a party to provide 25 a code-compliant response. Here, Plaintiff has provided a code-compliant response. 26 27 REQUEST FOR ADMISSION TEN (10): Admit that Exhibit "1" attached hereto is a true and 28 correct copy of the January 28, 2022 the United States Bankruptcy Court in and for the Central PLAINTIFF'S SEPARATE STATEMENT IN SUPPORT OF OPPOSITION - DAVIS 13 1 District of California issued an order of discharge in case # 1:18-bk-11150-VK as to Robert 2 Edward Zuckerman aka Bob Zuckerman under 11 U.S.C. section 727. 3 RESPONSE: Responding Party objects to this request for admission because there is a 4 preface of instructions and definitions at the beginning of the requesting document which violates Code of Civil Procedure Section 2033.060(d). 5 6 Responding Party also objects to this request for admission because Responding Party is not a bankruptcy lawyer and this request seeks admission of a legal matter and/or seeks a legal 7 conclusion, without reference to any fact, which is beyond the scope of discovery permitted by Code of Civil Procedure Section 2033.010. 8 9 Without waiving the foregoing objections, Responding Party responds as follows: The information requested is a public record that may be obtained from the Bankruptcy Court 10 directly, and thus is information equally available to Propounding Party. Discovery has not 11 been completed and is continuing. 12 DAVIS: Why The Objection Should Be Overruled and Answered: Plaintiff, Richard 13 Abel in propria, has no damages as a matter of law as to any claims pertaining to Robert 14 Zuckerman in this action, and it was improper to either admit or deny the January 28, 2022 Order 15 of Discharge under 11 U.S.C. Section 727 that is part of this admission discovery motion where 16 plaintiff Richard Abel participated in Robert Zuckerman's bankruptcy matters (In re Robert 17 Zuckerman 613 B.R. 707 (9th Cir. BAP 2020), a published decision and Garretson v. Harold I. 18 Miller (2002) 99 Cal. App. 563, 569). California follows the majority rule that a malpractice 19 plaintiff must prove not only negligence on the part of his or her attorney but that careful 20 management of the case-within-a-case would have resulted in a favorable judgment “and 21 collection of same ….” Richard Abel is claiming in this action that despite being awarded 22 sizeable judgments in the Liebling action, he should have received more from claimed 23 assignments of dismissed plaintiffs despite not complying with the court's May 6,2021 order in 24 the Liebling action in filing a motion with the court to prove with competent evidence that he 25 obtained his claimed assignments from former plaintiffs before they were dismissed as plaintiffs 26 as they requested. See April 26, 2022 filed certified copy of the Order of Discharge dated 27 January 28, 2022 as to Robert Zuckerman filed in this action. Richard Abel was a judgment 28 creditor in Robert Zuckerman's bankruptcy who filed a petition to place Robert Zuckerman in a PLAINTIFF'S SEPARATE STATEMENT IN SUPPORT OF OPPOSITION - DAVIS 14 1 Chapter 7 no asset bankruptcy needs to “admit” or “deny” this request. His objections are 2 without merit in that he received the initial mailing of this January 28, 2022 Order of Discharge 3 as to Robert Zuckerman from the bankruptcy court. Robert Zuckerman is insolvent. 4 PLAINTIFF: Why A Further Response Should NOT Be Ordered: 5 This Request does not comply with Code of Civil Procedure Section 2033.060(d) which 6 states that "Each request for admission shall be full and complete in and of itself. No preface or 7 instruction shall be included with a set of admission requests unless it has been approved under 8 Chapter 17." The preface and definitions used by Davis violate the Code. 9 McCutchan failed and refused to make the original of the request's Exhibit "1" available 10 for inspection by Plaintiff, as required by Code of Civ. Proc. §2033.060(g). 11 The information requested is a public record that is equally available to Davis. There is 12 no duty on the part of Plaintiff to search out matters of public record. When the information 13 sought is equally available to the propounder of the interrogatory, the burden and expense of any 14 research which may be required should be born by the party seeking the information. (See, 15 Bunnell v. Sup.Court (1967) 254 Cal.App. 2d. 720, 723-724.) Edward McCutchan may obtain 16 the same information by making a trip to Los Angeles and searching the bankruptcy court's 17 records for himself. Plaintiff is not expected to travel to Los Angeles to searc