Preview
Richard Abel
1
707 Hahman Drive, No. 9301
2 Santa Rosa, CA 95405
Telephone: (707) 340-3894
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4 Plaintiff, In pro per
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6
7
8
SUPERIOR COURT OF THE STATE OF CALIFORNIA
9
FOR THE COUNTY OF SONOMA
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RICHARD ABEL, an individual; Case Number: SCV-263456
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MEMORANDUM OF POINTS AND
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Plaintiff; AUTHORITIES IN SUPPORT OF
v. PLAINTIFF'S MOTION TO COMPEL
13 FURTHER RESPONSES, AND FOR
B. EDWARD McCUTCHAN JR. an SANCTIONS AGAINST DEFENDANT
14 DALE DAVIS
individual; SUNDERLAND/McCUTCHAN,
15 LLP, a general partnership; and DOES 1
through 100, inclusive; Date:
16
Time: 1:30 p.m.
17 Defendants. Dept: 13 - Hon. Christopher Honigsberg
Trial: January 13, 2022
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19
TO THE COURT, ALL PARTIES, AND THEIR ATTORNEYS OF RECORD:
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This memorandum of points and authorities is hereby submitted by plaintiff Richard Abel
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("Plaintiff"), in support of Plaintiff's motion to compel further responses, and for sanctions,
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against defendant Dale Davis ("Davis") for his failure to serve code-compliant responses, that the
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Court ordered on May 27, 2022 (the "Order").
24 I.
INTRODUCTION
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On May 25, 2022, the Court granted Plaintiff's two (2) motions to compel further
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responses to discovery from Davis. This Order was entered on May 27, 2022. Yet even after
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this Order, Davis and his lawyer McCutchan still continue to make objections and to evade
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MEMORANDUM OF POINTS AND AUTHORITIES
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1 answering Plaintiff's discovery. Davis served supplemental responses on July 14, but these
2 responses are incomplete, make new objections, and/or are non-responsive. Davis' disobedience
3 of the Court's discovery order is the reason for this motion.
4 Plaintiff attempted to meet and confer with the counsel of Davis, Mr. B. Edward
5 McCutchan, Jr. (“McCutchan”). Plaintiff sent a letter to Mr. McCutchan to meet and confer on
6 this matter, by both fax and by U.S. mail. Mr. McCutchan replied, stating that Davis does not
7 remember anything. However, the Court found in the May 27, 2022 order that "I don't recall" is
8 not a code-compliant answer, as Davis has an obligation to "undertake a reasonable and good
9 faith effort to obtain the information by inquiry." Code Civ.Proc. §2030.220(c).
10 Here, Davis did not make a reasonable and good faith effort to obtain the information.
11 Davis' supplementary responses are not code-compliant. Therefore, Plaintiff seeks an order
12 from the Court compelling Davis to provide further, and code-compliant verified responses
13 without objections to the discovery requests, as outlined in Plaintiff's separate statement.
14 Plaintiff also seeks an order pursuant to Code Civ.Proc. §2030.210(a), striking Davis'
15 “General Objections” preambles in each of Davis' responding briefs. “General Objections” are
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not allowed under the Discovery Act.
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Additionally, Plaintiff requests the Court to assess sanctions pursuant to Code Civ.Proc.
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§ 2023.030, Plaintiff requests monetary sanctions against Davis in the amount of $282.71.
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Plaintiff also requests issue sanctions, striking all of Davis' affirmative defenses and/or grant
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terminating sanctions against Davis for his disobedience of the Court's May 27, 2022 order.
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II.
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STATEMENT OF FACTS
23 On December 23, 2021, Davis filed an answer in this action with twenty-four (24)
24 affirmative defenses. Included as an affirmative defense was Davis' pleading that alleged a
25 breach of contract. (See, Abel Decl. ¶5).
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On December 29, 2021, Plaintiff propounded and served written discovery to Davis to
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obtain information and the facts supporting the allegations that Davis plead in his answer.
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(See, Abel Decl. ¶6).
MEMORANDUM OF POINTS AND AUTHORITIES
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1 On January 15, 2022, Davis served unverified responses to Plaintiff's Discovery with no
2 answers, but only objections. Davis made the same boilerplate objections to each Discovery
3 request. Davis simply cut and paste the same objections without any thought nor reason,
4 irregardless of whether the objections applied. (See, Abel Decl. ¶7).
5 After fruitless efforts to meet and confer on this discovery with attorney McCutchan,
6 Plaintiff filed a second (2nd) motion to compel further responses on February 23, 2022. There
7 was already a first (1st) motion to compel against Davis filed on November 15, 2021. (See, Abel
8 Decl. ¶8).
9 On May 25, 2022, the Court granted both (2) discovery motions against Davis. (See,
10 Plaintiff's Request for Judicial Notice, ("RFJN") Exhibit 1.) The Court overruled Davis'
11 boilerplate objections that his attorney McCutchan had cut and pasted for each request. The
12 Court ordered Davis to serve substantive, code-compliant responses. (See, Abel Decl. ¶9).
13 On July 14, 2022, Davis served supplementary responses to the discovery. Upon review
14 of the supplementary responses, Plaintiff found many responses were incomplete and evasive.
15 (See, Abel Decl. ¶¶10, 11).
16 On July 26, 2022, Plaintiff sent a meet and confer letter to McCutchan outlining the
17 issues with Davis' supplementary discovery responses. (See, Abel Decl. ¶12).
18 On August 5, 2022, Mr. McCutchan responded to Plaintiff with a letter. (See, Abel Decl.
19 ¶13). McCutchan stated in the letter that Davis has no documents to produce, and that Davis
20 does not remember all the facts that support Davis' answer. McCutchan did not say, nor promise
21 that Davis would provide any further responses. (See, Abel Decl. ¶14).
22 Therefore, Plaintiff has brought this motion to compel Davis to provide code-compliant
23 responses that the Court ordered on May 27, 2022. (See, Abel Decl. ¶15).
24 III.
LAW AND ARGUMENT
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A. Davis Disobeyed the Court's May 27, 2022 Order
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The Court ordered Davis to serve provide substantive, code compliant responses to all
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requested discovery within 30 days' notice of the Order. (See, Plaintiff's RFJN, Ex. 1 at p. 13:19
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and at 14:11.) Davis failed to do that.
MEMORANDUM OF POINTS AND AUTHORITIES
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1 Code of Civ. Proc. §§ 2023.030; 2030.300(e); 2031.310(i); and 2033.290(e), collectively
2 provide that a court can impose issue, evidence, or terminating sanctions where a party violates a
3 discovery order of the court. If a party fails to obey a discovery order, the court may impose
4 whatever sanctions are just. See,Weil & Brown, California Practice Guide, Civil Procedure
5 Before Trial, 8:2175 (The Rutter Group 2021).
6 Code of Civ. Proc. §§ 2023.010(g) makes "disobeying a court order to provide
7 discovery" a "misuse of the discovery process."
8 Noncompliance (with the court's order) is all that need be shown. Putnam Ins. Co. v.
9 Superior Court (1985) 171 Cal. App. 877, 844. Davis violated the Order by not providing
10 substantive, code compliant responses by:
11 (1) interjecting new objections, or incorporating his prior objections;
12 (2) not completely answering each request or interrogatory;
13 (3) failing to make a reasonable inquiry to obtain the information;
14 (4) his responses not fully complying with Code Civ. Proc. §2030.220 (interrogatories);
15 §2031.230 (documents requests); and §2033.220 (requests for admission).
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17 (1). Davis Made New Objections in His Supplementary Responses
18 The Court overruled Davis' objections in the May 27, 2022 Order. (See, Plaintiff's RFJN
19 Ex. 1). Yet, again Davis "incorporates his prior objections" in his supplementary responses to
20 the special interrogatories ("SIs"). (See, Plaintiff's Separate Statement at pp. 45-46).
21 Davis also interjected new objections in his supplementary responses to the requests for
22 admissions ("RFAs"). (See, Plaintiff's Separate Statement at pp. 39-43). These new objections
23 were not in Davis' original responses. Generally, failure to assert a discovery objection in a
24 response waives that objection later. Stadish v. Superior Court, (1999) 71 Cal.App.4th 1130,
25 1140. The Court should order Davis to serve supplementary responses without the improper
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new objections. The Court should also order Davis to remove reference to "his prior objections."
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MEMORANDUM OF POINTS AND AUTHORITIES
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1 (2). A Preamble of Objections is Not Allowed Under the Discovery Act
2 Each Davis' supplementary response begins with a preamble of boilerplate general
3 objections. (See, Abel Decl. ¶10). A general objections preamble is not allowed under the
4 Discovery Act. The use of this preamble attempts to relieve Davis of all obligations required of
5 him by the Discovery Act. It also gives Davis the ability to modify his responses and raise any
6 objections at any time including trial with no ramifications. “Discovery and Investigation are in
7 the beginning stages” is not a valid legal objection. In other words, with the use of this
8 preamble, Davis has provided worthless discovery responses that Davis cannot be bound to.
9 The General Objections used by Davis are simply boilerplate, and not based on any
10 statutory authority nor found in any case law. The Court overruled Davis' boiler plate objections
11 in its Order. (See, Plaintiff's RFJN, Ex. 1 at p. 12:18-26)
12 The Discovery Act does not authorize such a preamble or general objections. Instead the
13 Discovery Act requires the party to respond in writing to each interrogatory. (See, CCP §
14 2030.210). This is a misuse of the discovery procedure.
15 Even though several interrogatories, requests for documents and request for admissions
16 may be objectionable on the same ground, they may not be objected to as a group. (See, Hogan
17 and Weber, California Civil Discovery (2d. Ed 2009) §51).
18 (3). Davis Failed to Make a Reasonable Inquiry
19 Again, counsel McCutchan cut and pasted in the same response to each demand for
20 production of documents. (See, Plaintiff's separate statement, pp. 7-20).
21 The code requires that a party must make a reasonable and good faith effort to obtain the
22 documents. See Regency Health Services, Inc. v. Superior Court (1998) 64 Cal.App. 4th 1496.
23 “A party cannot plead ignorance to information which can be obtained from sources under his
24 control.” This includes a party’s lawyer, agents or employees, family members and experts. See
25 Deyo v. Superior Court (1978) 84 Cal.App.3d 771, 782. This includes a party’s lawyer; Smith
26 v. Sup. Ct. (1961) 189 Cal.App. 2d 6. To comply with the code, Dale Davis must obtain the
27 responsive documents from his lawyer Edward McCutchan.
28 //
MEMORANDUM OF POINTS AND AUTHORITIES
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1 A demand for production may request access to “documents, tangible things, land or
2 other property, and electronically stored information in the possession, custody, or control” of
3 another party. A party to whom a document demand is directed must respond to each item in the
4 demand with an agreement to comply, a representation of inability to comply, or an objection.
5 CCP § 2031.210(a). If only part of an item or category demanded is objectionable, the response
6 must contain an agreement to comply with the remainder, or a representation of the inability to
7 comply. CCP § 2031.240(c)(1). If a responding party is not able to comply with a particular
8 request, that party “shall affirm that a diligent search and a reasonable inquiry has been made in
9 an effort to comply with that demand.” CCP § 2031.230. “This statement shall also specify
10 whether the inability to comply is because the particular item or category has never existed, has
11 been destroyed, has been lost, misplaced, or stolen, or has never been, or is no longer, in the
12 possession, custody, or control of the responding party” and “[t]he statement shall set forth the
13 name and address of any natural person or organization known or believed by that party to have
14 possession, custody, or control of that item or category of item.”
15 The supplemental response of Davis did not comply with this code. Davis answered that
16 he has "no documents to produce" to each demand for production of document. Yet, Davis
17 identified various "status reports, billings, and e-mails" in his supplementary responses to the
18 form interrogatories. (See, Plaintiff's separate statement, pp. 27-35). Davis even attached one
19 of these documents as Exhibit "A" to Davis' supplemental admission responses. (See, Plaintiff's
20 separate statement, pp. 27-35).
21 It is obvious that Davis has access to documents from his attorney McCutchan when he
22 needs one. These documents are under Davis' control. Davis can ask his attorney or his other
23 defendants for copies. The Code requires that Davis produce them.
24 (4). Davis Failed to Answer Each Interrogatory Completely
25 Davis did not provide names, addresses, and telephone numbers where required on the
26 form interrogatories. (See, Plaintiff's separate statement, pp. 21-27)
27 Davis alleged a breach of contract as an affirmative defense in his answer. (See, Abel
28 Decl. ¶10). But Davis did not answer any questions about that contract in Form
MEMORANDUM OF POINTS AND AUTHORITIES
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1 Interrogatories 50.1 through 50.6. (See, Plaintiff's separate statement, pp. 35-38).
2 Davis did not answer Form Interrogatory 17.1 for Request No. 5. (See, Plaintiff's
3 separate statement, p. 28).
4 Davis gave evasive answers in several places. For example, Davis' answers to Form
5 Interrogatory 17.1 for RFAs 9. 10, and 12, did not actually address the question posed by the
6 RFA. (See, Plaintiff's separate statement, p. 30-32).
7 Davis' assertion that he does not remember is an incomplete answer as Davis has an
8 obligation to "undertake a reasonable and good faith effort to obtain the information by inquiry."
9 Code Civ.Proc. §2030.220(c). Based on these supplementary responses, it is apparent Davis
10 made no effort to find out.
11 Davis and his attorney McCutchan disobeyed the Court's May 27, 2022 Order, by his
12 failure to provide the substantive, and code compliant responses required.
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B. The Court has Authority to Compel Further Responses
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Code Civ.Proc. §2030.300(a) states in pertinent part that,
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”On receipt of a response to interrogatories, the propounding party may move
for an order compelling a further response if the propounding party deems that
17 any of the following apply:
18 (1) An answer to a particular interrogatory is evasive or incomplete.
(2) An exercise of the option to produce documents under Section 2030.230 is
19 unwarranted or the required specification of those documents is inadequate.
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(3) An objection to an interrogatory is without merit or too general.“
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Code Civ.Proc. § 2030.220 outlines how Davis must respond:
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(a) Each answer in a response to interrogatories shall be as complete and
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straightforward as the information reasonably available to the responding
24 party permits;
(b) If an interrogatory cannot be answered completely, it shall be answered to
25 the extent possible;
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(c) If the responding party does not have personal knowledge sufficient to
respond fully to an interrogatory, that party shall so state, but shall make a
27 reasonable and good faith effort to obtain the information by inquiry to other
natural persons or organizations, except where the information is equally
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available to the propounding party.
MEMORANDUM OF POINTS AND AUTHORITIES
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1 Here, Davis can obtain the information and documents from his lawyer McCutchan,
2 and/or from his co-defendants. Davis' supplementary responses do not state what effort he made
3 to obtain the information and documents. Thus, Davis' supplementary responses are evasive,
4 incomplete, and non-compliant with the Discovery Code.
5
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C. Further Monetary Sanctions Should be Ordered Against Davis and his Lawyer
In addition to or in lieu of any other sanction, the court may order the disobedient party or
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counsel responsible or both, to pay the reasonable expenses incurred as a result of the failure to
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obey. (Code Civ.Proc. § 2023.030(a); Marriage of Niklas (1989) 211 Cal.App.3d 28, 37-38.)
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“The court may award sanctions … even though no opposition to the motion was filed,
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… or the requested discovery was provided … after the motion was filed.” California Rules of
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Court Rule 3.1348.
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Self-represented litigants can recover reasonably identifiable expenses incurred. Kravitz
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v. Superior Court (Milner) (2001) 91 Cal.App.4th 1015, 1021.
15 As supported by Plaintiff's Declaration, Plaintiff's reasonable costs in bringing this
16 motion are $282.71. (See, Abel Decl. ¶ 17). Therefore, if this motion is granted, the Court
17 must order Davis and his lawyer to pay Plaintiff his reasonable costs incurred in bringing this
18 motion, even if amended responses are served late.
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20 D. The Court Should Impose a Sanction of $1,500 Payable to the Court
21 In addition to the foregoing discovery sanctions, a court may impose a sanction of up to
22 $1,500 payable to the Court for violation of an order "without good cause or substantial
23 justification." (Code Civ.Proc. §177.5; see Caldwell v. Samuels Jewelers (1990) 222 Cal.App.
24 3d 970, 978-979; People v. Hooper (2019) 40 Cal,App. 5th 688, 692-694.
25 Here, the Court should impose this sanction against counsel McCutchan since there is no
26 justification for his continuing abuse of the discovery process. The full amount of $1,500 is a
27 reasonable amount as Mr. McCutchan claims that his hourly rate is $425.
28 //
MEMORANDUM OF POINTS AND AUTHORITIES
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1 E. The Court Should Strike All of Davis' Affirmative Defenses
2 If a party fails to obey a discovery order, the Court may impose whatever sanctions that
3 are just. Weil & Brown, California Practice Guide, Civil Procedure Before Trial, 8:2175, supra.
4 Repeated discovery abuse by Davis and McCutchan warrants further relief here. The
5 purpose of this discovery was to enable Plaintiff to obtain information and facts supporting the
6 denials and affirmative defenses plead in Davis' Answer. Obviously Davis has no facts. The
7 Court may reasonably conclude by Davis' conduct that Davis has no factual basis for the
8 affirmative defenses that Davis plead in his Answer.
9 Thus, a reasonable remedy here, is for the Court to strike all of Davis' affirmative
10 defenses in Davis' answer.
11 F. The Court Should Order that the Requests for Admissions Be Deemed Admitted
12 Pursuant to Code Civ.Proc. § 2033.290(e), if a party fails to obey an order compelling
13 further response to a request for admission, the Court may order that the matters involved in the
14 requests be deemed admitted.
15 Here, Davis interjected new objections in his supplementary responses to the request for
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admissions. The Court explicitly stated in the May 27, 2022 Order that Davis' boilerplate
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objections were overruled. (See, Plaintiff's RFJN, Ex. 1, p. 12:15 to 14:15.) Davis did not have
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substantial justification for making these new objections, which warrants evidence sanctions
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pursuant to Code Civ.Proc. § 2033.290(e).
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G. The Court Can Order Terminating Sanctions If Its Discovery Orders Are Disobeyed
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Numerous cases have affirmed the imposition of terminating sanctions. See, e.g.
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Collisson & Kaplan v. Hartounian (1994) 21 Cal.App. 4th 1611, 1613-1615 [terminating
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sanction after defendants failed to comply with a single court order to produce documents]; also
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see Laguna Autobody v. Farmers Ins. Exchange (1991) 231 Cal.App.3d 481, 490. The Court
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should conclude after reviewing Davis' incomplete and evasive supplementary responses, that
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Davis and his counsel have exhibited a flagrant disrespect for the Court, the legal process and the
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Discovery Act by refusing to comply with the Court's previous discovery order.
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MEMORANDUM OF POINTS AND AUTHORITIES
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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 RICHARD ABEL, an individual; Case Number: SCV-263456 11 MEMORANDUM OF POINTS AND 12 Plaintiff; AUTHORITIES IN SUPPORT OF v. PLAINTIFF'S MOTION TO COMPEL 13 FURTHER RESPONSES, AND FOR B. EDWARD McCUTCHAN JR. an SANCTIONS AGAINST DEFENDANT 14 DALE DAVIS individual; SUNDERLAND/McCUTCHAN, 15 LLP, a general partnership; and DOES 1 through 100, inclusive; Date: 16 Time: 1:30 p.m. 17 Defendants. Dept: 13 - Hon. Christopher Honigsberg Trial: January 13, 2022 18 19 TO THE COURT, ALL PARTIES, AND THEIR ATTORNEYS OF RECORD: 20 This memorandum of points and authorities is hereby submitted by plaintiff Richard Abel 21 ("Plaintiff"), in support of Plaintiff's motion to compel further responses, and for sanctions, 22 against defendant Dale Davis ("Davis") for his failure to serve code-compliant responses, that the 23 Court ordered on May 27, 2022 (the "Order"). 24 I. INTRODUCTION 25 On May 25, 2022, the Court granted Plaintiff's two (2) motions to compel further 26 responses to discovery from Davis. This Order was entered on May 27, 2022. Yet even after 27 this Order, Davis and his lawyer McCutchan still continue to make objections and to evade 28 MEMORANDUM OF POINTS AND AUTHORITIES 1 1 answering Plaintiff's discovery. Davis served supplemental responses on July 14, but these 2 responses are incomplete, make new objections, and/or are non-responsive. Davis' disobedience 3 of the Court's discovery order is the reason for this motion. 4 Plaintiff attempted to meet and confer with the counsel of Davis, Mr. B. Edward 5 McCutchan, Jr. (“McCutchan”). Plaintiff sent a letter to Mr. McCutchan to meet and confer on 6 this matter, by both fax and by U.S. mail. Mr. McCutchan replied, stating that Davis does not 7 remember anything. However, the Court found in the May 27, 2022 order that "I don't recall" is 8 not a code-compliant answer, as Davis has an obligation to "undertake a reasonable and good 9 faith effort to obtain the information by inquiry." Code Civ.Proc. §2030.220(c). 10 Here, Davis did not make a reasonable and good faith effort to obtain the information. 11 Davis' supplementary responses are not code-compliant. Therefore, Plaintiff seeks an order 12 from the Court compelling Davis to provide further, and code-compliant verified responses 13 without objections to the discovery requests, as outlined in Plaintiff's separate statement. 14 Plaintiff also seeks an order pursuant to Code Civ.Proc. §2030.210(a), striking Davis' 15 “General Objections” preambles in each of Davis' responding briefs. “General Objections” are 16 not allowed under the Discovery Act. 17 Additionally, Plaintiff requests the Court to assess sanctions pursuant to Code Civ.Proc. 18 § 2023.030, Plaintiff requests monetary sanctions against Davis in the amount of $282.71. 19 Plaintiff also requests issue sanctions, striking all of Davis' affirmative defenses and/or grant 20 terminating sanctions against Davis for his disobedience of the Court's May 27, 2022 order. 21 II. 22 STATEMENT OF FACTS 23 On December 23, 2021, Davis filed an answer in this action with twenty-four (24) 24 affirmative defenses. Included as an affirmative defense was Davis' pleading that alleged a 25 breach of contract. (See, Abel Decl. ¶5). 26 On December 29, 2021, Plaintiff propounded and served written discovery to Davis to 27 obtain information and the facts supporting the allegations that Davis plead in his answer. 28 (See, Abel Decl. ¶6). MEMORANDUM OF POINTS AND AUTHORITIES 2 1 On January 15, 2022, Davis served unverified responses to Plaintiff's Discovery with no 2 answers, but only objections. Davis made the same boilerplate objections to each Discovery 3 request. Davis simply cut and paste the same objections without any thought nor reason, 4 irregardless of whether the objections applied. (See, Abel Decl. ¶7). 5 After fruitless efforts to meet and confer on this discovery with attorney McCutchan, 6 Plaintiff filed a second (2nd) motion to compel further responses on February 23, 2022. There 7 was already a first (1st) motion to compel against Davis filed on November 15, 2021. (See, Abel 8 Decl. ¶8). 9 On May 25, 2022, the Court granted both (2) discovery motions against Davis. (See, 10 Plaintiff's Request for Judicial Notice, ("RFJN") Exhibit 1.) The Court overruled Davis' 11 boilerplate objections that his attorney McCutchan had cut and pasted for each request. The 12 Court ordered Davis to serve substantive, code-compliant responses. (See, Abel Decl. ¶9). 13 On July 14, 2022, Davis served supplementary responses to the discovery. Upon review 14 of the supplementary responses, Plaintiff found many responses were incomplete and evasive. 15 (See, Abel Decl. ¶¶10, 11). 16 On July 26, 2022, Plaintiff sent a meet and confer letter to McCutchan outlining the 17 issues with Davis' supplementary discovery responses. (See, Abel Decl. ¶12). 18 On August 5, 2022, Mr. McCutchan responded to Plaintiff with a letter. (See, Abel Decl. 19 ¶13). McCutchan stated in the letter that Davis has no documents to produce, and that Davis 20 does not remember all the facts that support Davis' answer. McCutchan did not say, nor promise 21 that Davis would provide any further responses. (See, Abel Decl. ¶14). 22 Therefore, Plaintiff has brought this motion to compel Davis to provide code-compliant 23 responses that the Court ordered on May 27, 2022. (See, Abel Decl. ¶15). 24 III. LAW AND ARGUMENT 25 A. Davis Disobeyed the Court's May 27, 2022 Order 26 The Court ordered Davis to serve provide substantive, code compliant responses to all 27 requested discovery within 30 days' notice of the Order. (See, Plaintiff's RFJN, Ex. 1 at p. 13:19 28 and at 14:11.) Davis failed to do that. MEMORANDUM OF POINTS AND AUTHORITIES 3 1 Code of Civ. Proc. §§ 2023.030; 2030.300(e); 2031.310(i); and 2033.290(e), collectively 2 provide that a court can impose issue, evidence, or terminating sanctions where a party violates a 3 discovery order of the court. If a party fails to obey a discovery order, the court may impose 4 whatever sanctions are just. See,Weil & Brown, California Practice Guide, Civil Procedure 5 Before Trial, 8:2175 (The Rutter Group 2021). 6 Code of Civ. Proc. §§ 2023.010(g) makes "disobeying a court order to provide 7 discovery" a "misuse of the discovery process." 8 Noncompliance (with the court's order) is all that need be shown. Putnam Ins. Co. v. 9 Superior Court (1985) 171 Cal. App. 877, 844. Davis violated the Order by not providing 10 substantive, code compliant responses by: 11 (1) interjecting new objections, or incorporating his prior objections; 12 (2) not completely answering each request or interrogatory; 13 (3) failing to make a reasonable inquiry to obtain the information; 14 (4) his responses not fully complying with Code Civ. Proc. §2030.220 (interrogatories); 15 §2031.230 (documents requests); and §2033.220 (requests for admission). 16 17 (1). Davis Made New Objections in His Supplementary Responses 18 The Court overruled Davis' objections in the May 27, 2022 Order. (See, Plaintiff's RFJN 19 Ex. 1). Yet, again Davis "incorporates his prior objections" in his supplementary responses to 20 the special interrogatories ("SIs"). (See, Plaintiff's Separate Statement at pp. 45-46). 21 Davis also interjected new objections in his supplementary responses to the requests for 22 admissions ("RFAs"). (See, Plaintiff's Separate Statement at pp. 39-43). These new objections 23 were not in Davis' original responses. Generally, failure to assert a discovery objection in a 24 response waives that objection later. Stadish v. Superior Court, (1999) 71 Cal.App.4th 1130, 25 1140. The Court should order Davis to serve supplementary responses without the improper 26 new objections. The Court should also order Davis to remove reference to "his prior objections." 27 // 28 // MEMORANDUM OF POINTS AND AUTHORITIES 4 1 (2). A Preamble of Objections is Not Allowed Under the Discovery Act 2 Each Davis' supplementary response begins with a preamble of boilerplate general 3 objections. (See, Abel Decl. ¶10). A general objections preamble is not allowed under the 4 Discovery Act. The use of this preamble attempts to relieve Davis of all obligations required of 5 him by the Discovery Act. It also gives Davis the ability to modify his responses and raise any 6 objections at any time including trial with no ramifications. “Discovery and Investigation are in 7 the beginning stages” is not a valid legal objection. In other words, with the use of this 8 preamble, Davis has provided worthless discovery responses that Davis cannot be bound to. 9 The General Objections used by Davis are simply boilerplate, and not based on any 10 statutory authority nor found in any case law. The Court overruled Davis' boiler plate objections 11 in its Order. (See, Plaintiff's RFJN, Ex. 1 at p. 12:18-26) 12 The Discovery Act does not authorize such a preamble or general objections. Instead the 13 Discovery Act requires the party to respond in writing to each interrogatory. (See, CCP § 14 2030.210). This is a misuse of the discovery procedure. 15 Even though several interrogatories, requests for documents and request for admissions 16 may be objectionable on the same ground, they may not be objected to as a group. (See, Hogan 17 and Weber, California Civil Discovery (2d. Ed 2009) §51). 18 (3). Davis Failed to Make a Reasonable Inquiry 19 Again, counsel McCutchan cut and pasted in the same response to each demand for 20 production of documents. (See, Plaintiff's separate statement, pp. 7-20). 21 The code requires that a party must make a reasonable and good faith effort to obtain the 22 documents. See Regency Health Services, Inc. v. Superior Court (1998) 64 Cal.App. 4th 1496. 23 “A party cannot plead ignorance to information which can be obtained from sources under his 24 control.” This includes a party’s lawyer, agents or employees, family members and experts. See 25 Deyo v. Superior Court (1978) 84 Cal.App.3d 771, 782. This includes a party’s lawyer; Smith 26 v. Sup. Ct. (1961) 189 Cal.App. 2d 6. To comply with the code, Dale Davis must obtain the 27 responsive documents from his lawyer Edward McCutchan. 28 // MEMORANDUM OF POINTS AND AUTHORITIES 5 1 A demand for production may request access to “documents, tangible things, land or 2 other property, and electronically stored information in the possession, custody, or control” of 3 another party. A party to whom a document demand is directed must respond to each item in the 4 demand with an agreement to comply, a representation of inability to comply, or an objection. 5 CCP § 2031.210(a). If only part of an item or category demanded is objectionable, the response 6 must contain an agreement to comply with the remainder, or a representation of the inability to 7 comply. CCP § 2031.240(c)(1). If a responding party is not able to comply with a particular 8 request, that party “shall affirm that a diligent search and a reasonable inquiry has been made in 9 an effort to comply with that demand.” CCP § 2031.230. “This statement shall also specify 10 whether the inability to comply is because the particular item or category has never existed, has 11 been destroyed, has been lost, misplaced, or stolen, or has never been, or is no longer, in the 12 possession, custody, or control of the responding party” and “[t]he statement shall set forth the 13 name and address of any natural person or organization known or believed by that party to have 14 possession, custody, or control of that item or category of item.” 15 The supplemental response of Davis did not comply with this code. Davis answered that 16 he has "no documents to produce" to each demand for production of document. Yet, Davis 17 identified various "status reports, billings, and e-mails" in his supplementary responses to the 18 form interrogatories. (See, Plaintiff's separate statement, pp. 27-35). Davis even attached one 19 of these documents as Exhibit "A" to Davis' supplemental admission responses. (See, Plaintiff's 20 separate statement, pp. 27-35). 21 It is obvious that Davis has access to documents from his attorney McCutchan when he 22 needs one. These documents are under Davis' control. Davis can ask his attorney or his other 23 defendants for copies. The Code requires that Davis produce them. 24 (4). Davis Failed to Answer Each Interrogatory Completely 25 Davis did not provide names, addresses, and telephone numbers where required on the 26 form interrogatories. (See, Plaintiff's separate statement, pp. 21-27) 27 Davis alleged a breach of contract as an affirmative defense in his answer. (See, Abel 28 Decl. ¶10). But Davis did not answer any questions about that contract in Form MEMORANDUM OF POINTS AND AUTHORITIES 6 1 Interrogatories 50.1 through 50.6. (See, Plaintiff's separate statement, pp. 35-38). 2 Davis did not answer Form Interrogatory 17.1 for Request No. 5. (See, Plaintiff's 3 separate statement, p. 28). 4 Davis gave evasive answers in several places. For example, Davis' answers to Form 5 Interrogatory 17.1 for RFAs 9. 10, and 12, did not actually address the question posed by the 6 RFA. (See, Plaintiff's separate statement, p. 30-32). 7 Davis' assertion that he does not remember is an incomplete answer as Davis has an 8 obligation to "undertake a reasonable and good faith effort to obtain the information by inquiry." 9 Code Civ.Proc. §2030.220(c). Based on these supplementary responses, it is apparent Davis 10 made no effort to find out. 11 Davis and his attorney McCutchan disobeyed the Court's May 27, 2022 Order, by his 12 failure to provide the substantive, and code compliant responses required. 13 B. The Court has Authority to Compel Further Responses 14 Code Civ.Proc. §2030.300(a) states in pertinent part that, 15 16 ”On receipt of a response to interrogatories, the propounding party may move for an order compelling a further response if the propounding party deems that 17 any of the following apply: 18 (1) An answer to a particular interrogatory is evasive or incomplete. (2) An exercise of the option to produce documents under Section 2030.230 is 19 unwarranted or the required specification of those documents is inadequate. 20 (3) An objection to an interrogatory is without merit or too general.“ 21 Code Civ.Proc. § 2030.220 outlines how Davis must respond: 22 (a) Each answer in a response to interrogatories shall be as complete and 23 straightforward as the information reasonably available to the responding 24 party permits; (b) If an interrogatory cannot be answered completely, it shall be answered to 25 the extent possible; 26 (c) If the responding party does not have personal knowledge sufficient to respond fully to an interrogatory, that party shall so state, but shall make a 27 reasonable and good faith effort to obtain the information by inquiry to other natural persons or organizations, except where the information is equally 28 available to the propounding party. MEMORANDUM OF POINTS AND AUTHORITIES 7 1 Here, Davis can obtain the information and documents from his lawyer McCutchan, 2 and/or from his co-defendants. Davis' supplementary responses do not state what effort he made 3 to obtain the information and documents. Thus, Davis' supplementary responses are evasive, 4 incomplete, and non-compliant with the Discovery Code. 5 6 C. Further Monetary Sanctions Should be Ordered Against Davis and his Lawyer In addition to or in lieu of any other sanction, the court may order the disobedient party or 7 counsel responsible or both, to pay the reasonable expenses incurred as a result of the failure to 8 obey. (Code Civ.Proc. § 2023.030(a); Marriage of Niklas (1989) 211 Cal.App.3d 28, 37-38.) 9 10 “The court may award sanctions … even though no opposition to the motion was filed, 11 … or the requested discovery was provided … after the motion was filed.” California Rules of 12 Court Rule 3.1348. 13 Self-represented litigants can recover reasonably identifiable expenses incurred. Kravitz 14 v. Superior Court (Milner) (2001) 91 Cal.App.4th 1015, 1021. 15 As supported by Plaintiff's Declaration, Plaintiff's reasonable costs in bringing this 16 motion are $282.71. (See, Abel Decl. ¶ 17). Therefore, if this motion is granted, the Court 17 must order Davis and his lawyer to pay Plaintiff his reasonable costs incurred in bringing this 18 motion, even if amended responses are served late. 19 20 D. The Court Should Impose a Sanction of $1,500 Payable to the Court 21 In addition to the foregoing discovery sanctions, a court may impose a sanction of up to 22 $1,500 payable to the Court for violation of an order "without good cause or substantial 23 justification." (Code Civ.Proc. §177.5; see Caldwell v. Samuels Jewelers (1990) 222 Cal.App. 24 3d 970, 978-979; People v. Hooper (2019) 40 Cal,App. 5th 688, 692-694. 25 Here, the Court should impose this sanction against counsel McCutchan since there is no 26 justification for his continuing abuse of the discovery process. The full amount of $1,500 is a 27 reasonable amount as Mr. McCutchan claims that his hourly rate is $425. 28 // MEMORANDUM OF POINTS AND AUTHORITIES 8 1 E. The Court Should Strike All of Davis' Affirmative Defenses 2 If a party fails to obey a discovery order, the Court may impose whatever sanctions that 3 are just. Weil & Brown, California Practice Guide, Civil Procedure Before Trial, 8:2175, supra. 4 Repeated discovery abuse by Davis and McCutchan warrants further relief here. The 5 purpose of this discovery was to enable Plaintiff to obtain information and facts supporting the 6 denials and affirmative defenses plead in Davis' Answer. Obviously Davis has no facts. The 7 Court may reasonably conclude by Davis' conduct that Davis has no factual basis for the 8 affirmative defenses that Davis plead in his Answer. 9 Thus, a reasonable remedy here, is for the Court to strike all of Davis' affirmative 10 defenses in Davis' answer. 11 F. The Court Should Order that the Requests for Admissions Be Deemed Admitted 12 Pursuant to Code Civ.Proc. § 2033.290(e), if a party fails to obey an order compelling 13 further response to a request for admission, the Court may order that the matters involved in the 14 requests be deemed admitted. 15 Here, Davis interjected new objections in his supplementary responses to the request for 16 admissions. The Court explicitly stated in the May 27, 2022 Order that Davis' boilerplate 17 objections were overruled. (See, Plaintiff's RFJN, Ex. 1, p. 12:15 to 14:15.) Davis did not have 18 substantial justification for making these new objections, which warrants evidence sanctions 19 pursuant to Code Civ.Proc. § 2033.290(e). 20 G. The Court Can Order Terminating Sanctions If Its Discovery Orders Are Disobeyed 21 Numerous cases have affirmed the imposition of terminating sanctions. See, e.g. 22 Collisson & Kaplan v. Hartounian (1994) 21 Cal.App. 4th 1611, 1613-1615 [terminating 23 sanction after defendants failed to comply with a single court order to produce documents]; also 24 see Laguna Autobody v. Farmers Ins. Exchange (1991) 231 Cal.App.3d 481, 490. The Court 25 should conclude after reviewing Davis' incomplete and evasive supplementary responses, that 26 Davis and his counsel have exhibited a flagrant disrespect for the Court, the legal process and the 27 Discovery Act by refusing to comply with the Court's previous discovery order. 28 // MEMORANDUM OF POINTS AND AUTHORITIES 9