Preview
Edward McCutchan (SBN 119376)
SUNDKRLAND i McCUTCHAN& LLP
1083 Vine Street, Suite 907
Healdsburg, California 95448
Telephone: (707) 433-0377
Facsimile: (707) 433-0379
5
Attorneys for Defendant
6 JAMES NORD aka JIM NORD as an individual and on behalf
of the Patrick Trust and Mein Trust sued as DOE 5
7
SUPERIOR COURT OF THE STATE OF CALIFORNIA
9 FOR THE COUNTY OF SONOMA
RICHARD ABEL, an individual, ) CASE NO. SCV-263456
)
Plaintiff, ) MEMORANDUM OF POINTS AND
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AUTHORITIES IN SUPPORT OF
) DEFENDANT JAMES NORD'S MOTION
vs. ) TO COMPEL PLAINTIFF RICHARD
13
) ABEL'S RESPONSES TO FORM
B. EDWARD McCUTCHAN, JR. an ) INTERROGATORIES, SPECIAL
individual; SUNDERLAND McCUTCHAN, ) INTERROGATORIES& REQUESTS
~
FOR ADMISSION, REQUESTS FOR
LLP, a general partnership; and DOES I
PRODUCTION OF DOCUMENTS,
through 100, inclusive, SKT ONE AND FOR MONETARY
16
SANCTIONS
17 Defendants. )
Date:
18
) Time:
Dept.: 13
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Trial: January 13, 2023
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Assigned For All Purposes to the
Honorable Christonher Honiasbera
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I
22 INTRODUCTION
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In propria persona plaintiff, Richard Abel (hereinafter "ABEL"), who filed a first
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amended complaint in this action November 16, 2020, once again refuses to comply with written
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discoveiy requests upon him as to his claims brought by DOE 5 defendant, Jim Nord, hereinafter
26
27 ("NORD" ). ABEL'S first amended complaint alleges at par. 14, 64-72 and 74-76 that he
obtained assignments from dismissed plaintiffs in Sonoma County Superior Court Case No.
MEMORANDUM OP POINTS AND AUTHORITIES IN SUPPORT OP DEPENDANT JAMES NORD'S MOTION To COMPEL
PLAINTIFF RICI.IARD AEEL'S RESPONSES TO FORM INTERROGATORIFS, SPECIAL INTERROGATORIES, REQUESTS FOR
ADMISSION, REQUESTS FOR PRODUCTION OF DOCUMENTS, SET ONE AND FOR MONETARY SANCTIONS
1
SCV-245738, Lieblina v. Goodrich. et al. yet failed to attach such alleged assignments as
2
exhibits to the first amended complaint in this action.
3
NORD'S first set of written discovery on ABEL seeks to ascertain how ABEL obtained
the alleged assignments, the specific month, day, and year they were allegedly given him, who
6 allegedly signed the alleged assignments and witnesses to such signing. (See par. 4-16 to the
accompanying Declaration of Edward MCCutchan). ABEL has refused to comply with NORD'S
8
first set of discoveiy on him by objecting to many of the requests on August 8, 2022.
Per the accompanying request for judicial notice, many of ABEL'S claimed assignments
10
designated as exhibits within are dated after the former plaintiffs in the Lieblina action were
12 dismissed as they requested (Exhibits "1" through "20" to NORD'S July 8, 2022 first set of
admissions on ABEL and Exhibit "A" to NORD'S July 8, 2022 first document request on
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ABEL. ABEL'S September 16, 2012 email admits that thirty-seven [37] Liebling plaintiffs have
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been dismissed with reference to a spread sheet that ABEL now claims no longer exists as to the
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17 remaining plaintiffs with no reference to having any assignments.
18 NORD'S position is that ABEL has fabricated his alleged assignments in his first
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amended complaint herein by backdating his alleged assignments to a date before former
20
plaintiffs were dismissed as requested which may not have been signed by these former plaintiffs
21
in the Lieblina action. (See accompanying Declaration of Edward McCutchan, par. 7-10 and
23 Exhibits "A" and "B" thereto).
ABEL'S failure to comply with NORD'S July 8, 2022 discovery requests upon him
25
before this court as to his alleged assignments is evidence in and of itself that ABEL is
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perpetrating a fraud upon the defendants and the court in this action.
27
28 The burden of proof of under California Evidence Code section 500 is on the party to
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT JAMES NORD'S MOTION TO COMPEL
PLAINTIPF RICHARD ABEL'S RFSPONSES TO FORM INTERROGATORIES, SPECIAL INTERROGATORIES, REQUESTS FOR
ADMISSION, IiEQUESTS FOR PRODUCTION OF DOCUMENTS, SET ONE AND FOR MONETARY SANCTIONS
2
whose case the fact is essential. In this action, ABEL bears the burden of proof concerning his
2
causes of action in his November 16, 2020 amended complaint in this action under Evidence
3
Code section 500.
The April 26, 2022 filed request for judicial notice as to the certified copy of the "Order
6 of Discharge" concerning Robert Zuckerman's Chapter 7 Bankruptcy in this action demonstrates
why ABEL refuses to comply with NORD'S discovery on him, Dale Davis'iscovery on him
8
and why ABEL refuses to attend his face-to-face deposition in March 2022. ABEL has filed and
pursued a frivolous action in that he has no damages as a matter of law.
10
II
PRESENT DISCOVERY DISPUTE BETWEEN ABEL AND NORD
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ABEL was served with NORD'S first set of written discoveiy on July 8, 2022 consisting
13
14 of admissions, special inteITogatories, form interrogatories and document requests. (See par. 4-16
to the accompanying Declaration of Edward McCutchan and attached exhibits).
16
On August 8, 2022, ABEL responded to NORD'S first set of written discovery with
17
improper objections and no document production on matters that ABEL is well aware of and
18
within his knowledge, control and possession pertaining to his claims in his November 16, 2020
19
20 amended complaint in this action. (See par. 4-16 to the accompanying Declaration of Edward
McCutchan and attached exhibits).
22
Counsel for NORD sent ABEL a "meet and confer letter" on September 8, 2022 to
23
resolve his improper objections to the served July 8, 2022 discovery on him, documents that are
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relevant to his perceived fabricated assignment claims in this action in first amended complaint
26 herein at par. 14, 64-72 and 74-76 with one telephone call on September 13, 2022 and emails on
September 14, 2022 and the following day to and from ABEL.
28
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT JAMES NOI1D'S MOTION TO COMPEL
PLAINTIFP RICIIARD ABEL'S RESPONSES TO FORM INTERROGATORIES, SPECIAL INTERROGATORIES, REQUESTS FOR
ADMISSION, REQUESTS FOR PRODUCTION OP DOCUMENTS, SET ONE AND FOR MONETARY SANCTIONS
3
It is abundantly clear that ABEL does not desire to address his fabricated assignments
2
that are backdated and are not signed by former plaintiffs in the Liebling action. Such is one of
3
the reasons that ABEL refused to attend his March 2022 deposition in person.
HI
ABEL'S OBJECTIONS TO NORD'S JULY 8, 2022 DISCOVERY
REQUESTS ARK LACK A FACTUAL AND LEGAL BASIS WHERE
PROPER ANSWERS AND DOCUMENT PRODUCTION ARE MANDATED
A principal feature of the discovery act is that most discovery requests are self-executing
9 and do not consume court time. A mere "objection" does nothing but invite a motion to compel.
(Zellerino v. Brown (1991) 235 Cal App. 3d 1097, 11110. "California law provides parties with
11
expansive discovery rights." (Looez v. Watchtower Bible d'cTract Societv ofIJI.Y., Inc. (2016) 246
12
Cal. App. 4th 566, 590-591. Specifically, the Code provides that "any party may obtain
13
discoveiy regarding any matter, not privileged, that is relevant to the subject matter involved in
the pending action or to the determination of any motion made in that action, if the matter either
16
is itself admissible in evidence or appears reasonably calculated to lead to the discovery of
17
admissible evidence." ( CCP 2017.010; see also, Garamendi
I'J v. Golden Eat.le Ins. Co. (2004)
18
116 Cal. App. 4th 694, 712, fn. 8). "For discovery purposes, information is relevant if it 'might
19
28 reasonably assist a party in evaluating the case, preparing for trial, or facilitating settlement..."
(See L~oez supt a, 246 Cal.App.4th at 590-591, citing Garamendi. supra, 116 Cal.App.4th at
22
712, fn. 8. "Admissibility is not the test and information[,] unless privileged, is discoverable if it
23
might reasonably lead to admissible evidence." (Ibid). "These rules are applied liberally in favor
24
of discovery, and (contraiy to popular belief), fishing expeditions are permissible in some cases."
26 Id. The scope of discovery is one of reason, logic, and common sense. (Linton v. Suoerior Court
(1996) 48 Cal.App.4th 1599, 1612). The right to discovery is generally liberally construed.
28
(Williams v. Suoerior Court (2017) 3 Cal.5th 531, 540).
MEMORANDUM OF POINTS AND AUTHORlTIES IN SUPPORT OF DEFENDANT JAMES NORD'S MOTION TO COMPEL
PLAINTIPF RICFIARD ABEL'S RESPONSES TO FORM INTERROGATORIES, SPECIAL INTERROGATORIES, REQUESTS FOR
ADMISSION, REQUESTS FOR PRODUCTION OF DOCUMENTS, SET ONE AND FOR MONETARY SANCTIONS
"Parties, like witnesses, are required to state the truth, the whole tmth, and nothing but
2
the truth in answering written requests. (Devo v. Kilbourne (1978) 84 Cal. App. 3d 771, 783.
3
CCP It2017.010 provides the following; Unless otherwise limited by order of the court in
accordance with this title, any party may obtain discoveiy regarding any matter, not privileged,
6 that is relevant to the subject matter involved in the pending action or to the determination of any
motion made in that action if the matter either. is itself admissible in evidence or appears
8
reasonably calculated to lead to the discovery of admissible evidence. Discovety may relate to
9
the claim or defense of the party seeking discoveiy or of any other party to the action. Discovery
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may be obtained of the identity and location of persons having knowledge of any discoverable
12 matter, as well as of the existence, description, nature, custody, condition, and location of any
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document, electronically stored information, tangible thing, or land or other property.
14
NORD'S REOUEST FOR ADMISSIONS SET ONK, RKOUKSTS 1 THROUGH 22)
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CCP IJ2033.290 provides the following:
16
17 "On receipt of a response to requests for admissions, the patty requesting admissions may
move for an order compelling a further response if that party deems that either or both of the
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following apply: (1) An answer to a particular request is evasive or incomplete. (2) An objection
20
to a particular request is without merit or too general."
21
22
ABEL'S responses to NORD'S July 8, 2022 admissions are:
23 "Objection. This request is improper because it violates CCP section 2033.060. Pursuant
to CCP section 2033.060 (g), Responding Party demands make the original document available
25
for inspection. Objection. Propounding Party's definition of "you" is impermissibly overbroad
26
and violates CCP sections 2020.010 and 2033.010."
27
28 "Objection. This request is improper because it violates CCP section 2033.060. Objection
MEMORANDUM OP POINTS AND AUTHORITIES IN SUPPORT OP DEFENDANT JAMES NORD'S MOTION TO COMPEL
PLAINTIFF RICI.IARD ABEL'S RESPONSES TO PORM INTERROGATORIES, SPECIAL INTERROGATORIES, REQUESTS FOR
ADMISSION, REQUESTS FOR PRODUCTION OF DOCUMENTS, SET ONE AND FOR MONFTARY SANCTIONS
5
the terms "Sunderland/McCutchan," "represented," and "any legal matter" are undefined and
2
therefore vague and ambiguous as used in this request. Responding Party further objects to this
3
request as overbroad. Responding Party objects to this request as discoveiy has not been
completed and is continuing."
6 Nord's admission requests seek that ABEL admit that ABEL drafted Exhibits I through
20 of the claimed assignments of former Lieblinu plaintiffs attached to the admission request.
8
NORD'S admission requests 21 and 22 seek that ABEL admit that Sunderland ~
McCutchan,
9
Inc., who ABEL sued as a DOE defendant, never represented him at any time. ABEL'S
10
objections to these clearly defined admission requests create an inference that ABEL fabricated
12 his assignments and forged signatures of former Lieblinu plaintiffs who requested to be
13
dismissed and were dismissed by Sunderland ~
McCutchan, LLP.
14
As discussed in NORD'S Separate Statement, and in the September 8, 2022 "meet and
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confer letter" (Exhibit "9" to the accompanying Declaration of Edward MCCutchan), ABEL
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served meritless objections to NORD'S first request for admissions on him. Accordingly, the
Court is authorized to compel further responses to NORD'S admissions on ABEL for the reasons
19
so stated.
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NORD'S DOCUMENT REOUESTS SET ONE
21
22
As stated in the accompanying Declaration of Edward McCutchan, and detailed in the
23 Separate Statement included herewith, ABEL served meritless objections to actual documents
that ABEL authored and now refuses to produce documents that he most likely would have with
25
former Liebline plaintiffs.
26
ABEL'S failure to produce documents demonstrating the foundation for his alleged
27
assignments form former Liebling plaintiffs demonstrates that he fabricated this lawsuit against
MEMORANDUM OF POINTS AND AUTI.IORITIES IN SUPPORT OF DEPENDANT JAMES NORD'S MOTION To COMPEL
PLAINTIFF RICHARD ABEL'S RESPONSES TO PORM INTERROOATORIFS, SPECIAL INTERROGATORIES, REQUESTS FOR
ADMISSION, RFQUESTS POR PRODUCTION OF DOCUMFNTS, SET ONE AND FOR MONETARY SANCTIONS
6
all named defendants on this action and is perpetrating a fraud on the defendants and this court.
NORD'S FORM INTERROGATORIES SET ONK
ABEL objected to many of the judicial council form interrogatories on privacy grounds
or were vague based upon the definition of the incident which is the grounds for ABEL'S action
6 (as to foundational questions as to him) or "Objection. This request is improper because it
violates CCP section 2033.060" as to form interrogatory 17.1 pertaining to NORD'S first
8
admissions requests on him, requests 1 through 22.
9
Judicial council form interrogatories like the one's objected to by ABEL are pretty much
10
objection proof. ABEL'S objections to NORD'S form interrogatories at issue before this court
12 are without merit and must be answered as a matter of law.
13
NORD'S SPECIAL INTERROGATORIES SKT ONE
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Nord's special interrogatories set one (requests 1 through 21) seeks ABEL to state the
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specific date (month, date, and year) where each of the claimed assignments were allegedly
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signed, and the names and addresses of all witnesses to such, as well as terms and conditions as
to such.
19
These requests go directly to NORD'S defense that ABEL is perpetuating a fraud by
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backdating his claimed assignments on him, the other defendants in this action, and the court.
21
22
For ABEL to refuse to answer all twenty-one (21) special interrogatory requests based on
23 meritless objections demonstrates that he fabricated this lawsuit against all named defendants in
this action and is perpetrating a fraud on the defendants and this court. (See accompanying
25
Declaration of Edward Mccutchan and Exhibit's "A" and "B" thereto, where on May 29, 2014,
26
ABEL admits that he has no written assignments, On October 6, 2014 he admits that he is still
27
20 tiying to obtain assignments yet ABEL'S claimed assignments are dated 2011, 2012 and 2013
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT JAMES NORD'S MOTION TO COMPEL
PLAINTIFF RICHARD ABEL'S RESPONSES TO FORM INTERROGATORIES, SPECIAL INTERROGATORIES, REQUESTS FOR
ADMISSION, REQUESTS FOR PRODUCTION OF DOCUMENTS, SET ONE AND FOR MONETARY SANCTIONS
7
but all Liebline plaintiffs who wanted to be dismissed were dismissed by early December 2013.
IV
MONETARY SANCTIONS AGAINST ABEL ARE
WARRANTED CONCERNING THIS MOTION
CCP II2033.290(b) provides that this motion "shall be accompanied by a meet and confer
declaration under Section 2016. 040." A meet and confer declaration in support of a motion shall
state facts showing a reasonable and good faith attempt at an informal resolution of each issue
8
presented by the motion. (CCP II2016.040). Per the accompanying declaration of Edward
9
McCutchan, NORD sent three (3) separate meet and confer letters to ABEL outlining the
10
deficiencies in his admission responses allowing additional days to remedy his deficient
12 responses.
13 "To the extent authorized by the chapter governing any particular discovery method or
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any other provision of this title, the court, after notice to any affected party, person, or attorney,
15
and after opportunity for hearing may impose ...sanctions against anyone engaging in conduct
16
that is a misuse of the discoveiy process..." CCP II2023.030. "Misuses of the discoveiy process
include but are not limited to... (e) Making, without substantiaijustification, an
19
Iuimeritorioas obj ection to discovery... (fl Making an evasive response to discovery... (h)
20
Making or opposing, unsuccessfully and without substantial justification, a motion to compel or
21
to limit discovery...." (CCP II2023.010).
23 "The court shall impose a monetary sanction under Chapter 7 (commencing with Section
2023.010) against any party, person, or attorney who unsuccessfully makes or opposes a motion
25
to compel a further response, unless it finds that the one subject to the sanction acted with
26
substantial justification or that other circumstances make the imposition of the sanction unjust."
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CCP II2033.290(d). (Emphasis added).
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT JAMES NORD'S MOTION TO COMPEL
PLAINTIFF RICHARD ABEL'S RESPONSES TO PORM INTERROGATORIES, SPECIAL INTERROGATORIES, REQUESTS FOR
ADMISSION, REQUESTS FOR PRODUCTION OP DOCUMENTS, SET ONE AND FOR MONETARY SANCTIONS
8
These sanctions may be awarded under the Discovery Act in favor of a party who files a
2
motion to compel discoveiy, even though no opposition to the motion was filed, or an opposition
3
to the motion was withdrawn, or the requested discoveiy was provided to the moving party after
the motion was filed. (Cal. Rules of Ct., Rule 3.1030(a)). In the present case, there is no excuse
6 or justification for ABEL'S refusal to provide further responses to the subject admission requests
that contain documents that he authored that.
8
The accompanying declaration of Edward McCutchan herewith attests to the efforts expended
9
on the part of this moving party to avoid this motion. The purpose of discovery sanctions is to
10
prevent abuse of the discovery process and correct the problem presented. (Do v. Superior Court
(2003) 109 Cal. App. 4th 1210, 1213).
13
The court can infer that had ABEL not fabricated his claimed assignments in the Lieblinu
14
action that are designated as exhibits to NORD'S first request for admissions on him (either by
15
backdating and/or signing the names of former plaintiffs himself), ABEL would have properly
16
17 responded to NORD'S July 8, 2022 discovery on him without objection. ABEL'S objections to
NORD'S discoveiy in this motion are in the same vein as his refusal to attend his duly noticed
19
March 2022 deposition.
20
It is evident from the facts presented that ABEL will not comply with this authorized
21
method of discoveiy absent a court order. The imposition of sanctions of $ 3,290.00 requested in
23 the accompanying declaration of Edward McCutchan should be assessed against ABEL or
attorney time in bringing this motion payable within 4$ after notice of the order atter hearing.
25
V
26 CONCLUSION
27
Moving party, NORD, requests that this Court grant his motion to compel further verified
28
responses by ABEL to his separate first set of requests for admissions either admitting or
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OP DEPENDANT JAMES NORD'S MOTION TO COMPEL
PLAINTIPF RICHARD ABEL'S RESPONSES TO Poiuii INTFRROGATORIES, SPECIAL INTERROGATORlES, REQUESTS FOR
ADMISSION, REQUESTS FOR PRODUCTION OF DOCUMENTS, SET ONF. AND FOR MONETARY SANCTIONS
9
denying his requests, answering his first set of form interrogatories properly, producing the
2
requested documents in the first request for production, and proper answers to special
3
interrogatories on him within 45 days after notice of the order after hearing and order ABEL to
4
pay James Nord $ 3,290.00 in monetary sanctions payable to Sunderland ~
McCutchan, LLP,
8 within 45 days after notice of the order after hearing.
Date: September, 2022 SUNDERLANDi McCUTCHAN,LLP
8
10
Edwa McCutchan
Atto eys for Defendant
12 JAM $ NORD aka JIM N RD as an individual
and on BehaKaM8-Patrick Trust and Mein Trust
13
sued as DOE 5
15
17
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25
27
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT JAMES NORD'S MOTION TO COMPEL
PLAINTIFP RICHARD AEEL'S RESPONSES TO FORM INTERROGATORIES, SPECIAL INTERROGATORIES, REQUESTS FOR
ADMISSION, REQUESTS FOR PRODUCTION OP DOCUMENTS, SET ONE AND FOR MONETARY SANCTIONS
10
1 PROOF OF SERVICE
STATE OF CALIFORNIA, COUNTY OF SONOMA
I am employed in the County of Sonoma, State of California. I am over the age of 18 and
not a party to the within action; my present address is: 1083 Vine Street, Suite 907, Healdsburg
5
California 95448.
6
On September, 2022, I served the foregoing documents described as
7
MEMORANDUM OF, p TS AND AUTHORITIES IN SUPPORT OF DEFENDANT JANE S
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NORD'S MOTION TO COMPEL PLAINTIFF RICHARD ABEL'S RESPONSES TO FORM
9
INTERROGATORIES, SPECIAL INTERROGATORIES, REQUESTS FOR ADMISSION,
REQUESTS FOR PRODUCTION OF DOCUMENTS, SKT ONK AND FOR MONETARY
12 SANCTIONS on the parties by placing a true copy thereof enclosed in a sealed envelope addressed
13
as follows:
14
SKK ATTACHED SERVICE LIST
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Regular U.S. Mail. The documents were placed for collection and mailing following
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iness practice for deposit in the United States Postal Service in a sealed envelope with
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postage thereon fully prepaid, addressed as stated above.
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By personal service. I caused each such envelope to be delivered by hand to the addressee(s',
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as stated above.
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By facsinule transmitted from (707) 433-0379. The document transmission was reported as
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complet nd without elTor.
22
By email or electronic transmission. I caused the document to be sent to the persons at the
23
email addresses listed below. I did not receive within a reasonable time after the transmission any
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electronic message or other indication that the transmission was unsuccessful.
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26
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is true and correct and that this declaration was executed on Septembe
California.
I,
I declare under penalty of perjury under the laws of the State of California that the foregoing
2022, at Healdsburg.
28
Edward Mq(."Utchan )
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDAAT-~DIED'S MOTION TO COMPEL
PLAINTIFF RICHARD AEEL'S RESPONSES TO FORM INTERROGATORIES, SPECIAL INTERROGATORIES, REQUESTS POR
ADMISSION, REQUESTS FOR PRODUCTION OF DOCUMENTS, SET ONE AND POR MONETARY SANCTIONS
11
Abel v. McCutchan, et al.
Sonoma County Superior Court Case No. SCV-263456
3
Plaintiff in Pro Per: Richard Abel
Richard Abel USPS FIRST CLASS MAIL - ONLY
707 Hahman Drive, ¹9301
Santa Rosa, CA 95405-9301
Tel: (707) 340-3894
E-Mail:DererelQEmaih corn
9
Defendant in Pro Per: Nansi Weil (DOE 15) KLKCTRONIC SKRVICK — ONLY
10
Nansi Weil
5445 Bader Road
Santa Rosa, CA 95409
12
E-Maih nansi(Rraimentchandler.corn
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Attorneys for Defendants: Sunderland ~
McCutchan, Inc.; Sunderland ~
McCutchan, LLP,
B. Edward McCutchan, Jr.
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Joseph S. Picchi, Esq. KLKCTRONIC SKRVICK - ONLY
Aaron T. Schultz, Esq.
Alexander Promm, Esq.
17 Galloway, Lucchese, Everson & Picchi
A Professional Corporation
18 2300 Contra Costa Blvd., Suite 350
Pleasant Hill, CA 94523-2398
Tel. No. (925) 930-9090
Fax No. (925) 930-9035
E-Mail:aschultz(@alattvs.corn
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MEMORANDUM OF POINTS AND AUTHOIUTIES IN SUPPORT OF DEPENDANT JAMES NORD'S MOTION To COMPEL
PLAINTIFF RICHARD ABEL'S RESPONSES TO PORM INTERROGATORIFS, SPECIAL INTERROGATORIES, REQUESTS FOR
ADMISSION, REQUESTS FOR PRODUCTION OP DOCUMENTS, SET ONE AND FOR MONETARY SANCTIONS
12
Preview
Edward McCutchan (SBN 119376) SUNDKRLAND i McCUTCHAN& LLP 1083 Vine Street, Suite 907 Healdsburg, California 95448 Telephone: (707) 433-0377 Facsimile: (707) 433-0379 5 Attorneys for Defendant 6 JAMES NORD aka JIM NORD as an individual and on behalf of the Patrick Trust and Mein Trust sued as DOE 5 7 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 FOR THE COUNTY OF SONOMA RICHARD ABEL, an individual, ) CASE NO. SCV-263456 ) Plaintiff, ) MEMORANDUM OF POINTS AND 12 AUTHORITIES IN SUPPORT OF ) DEFENDANT JAMES NORD'S MOTION vs. ) TO COMPEL PLAINTIFF RICHARD 13 ) ABEL'S RESPONSES TO FORM B. EDWARD McCUTCHAN, JR. an ) INTERROGATORIES, SPECIAL individual; SUNDERLAND McCUTCHAN, ) INTERROGATORIES& REQUESTS ~ FOR ADMISSION, REQUESTS FOR LLP, a general partnership; and DOES I PRODUCTION OF DOCUMENTS, through 100, inclusive, SKT ONE AND FOR MONETARY 16 SANCTIONS 17 Defendants. ) Date: 18 ) Time: Dept.: 13 19 Trial: January 13, 2023 20 Assigned For All Purposes to the Honorable Christonher Honiasbera 21 I 22 INTRODUCTION 23 In propria persona plaintiff, Richard Abel (hereinafter "ABEL"), who filed a first 24 amended complaint in this action November 16, 2020, once again refuses to comply with written 25 discoveiy requests upon him as to his claims brought by DOE 5 defendant, Jim Nord, hereinafter 26 27 ("NORD" ). ABEL'S first amended complaint alleges at par. 14, 64-72 and 74-76 that he obtained assignments from dismissed plaintiffs in Sonoma County Superior Court Case No. MEMORANDUM OP POINTS AND AUTHORITIES IN SUPPORT OP DEPENDANT JAMES NORD'S MOTION To COMPEL PLAINTIFF RICI.IARD AEEL'S RESPONSES TO FORM INTERROGATORIFS, SPECIAL INTERROGATORIES, REQUESTS FOR ADMISSION, REQUESTS FOR PRODUCTION OF DOCUMENTS, SET ONE AND FOR MONETARY SANCTIONS 1 SCV-245738, Lieblina v. Goodrich. et al. yet failed to attach such alleged assignments as 2 exhibits to the first amended complaint in this action. 3 NORD'S first set of written discovery on ABEL seeks to ascertain how ABEL obtained the alleged assignments, the specific month, day, and year they were allegedly given him, who 6 allegedly signed the alleged assignments and witnesses to such signing. (See par. 4-16 to the accompanying Declaration of Edward MCCutchan). ABEL has refused to comply with NORD'S 8 first set of discoveiy on him by objecting to many of the requests on August 8, 2022. Per the accompanying request for judicial notice, many of ABEL'S claimed assignments 10 designated as exhibits within are dated after the former plaintiffs in the Lieblina action were 12 dismissed as they requested (Exhibits "1" through "20" to NORD'S July 8, 2022 first set of admissions on ABEL and Exhibit "A" to NORD'S July 8, 2022 first document request on 14 ABEL. ABEL'S September 16, 2012 email admits that thirty-seven [37] Liebling plaintiffs have 15 been dismissed with reference to a spread sheet that ABEL now claims no longer exists as to the 16 17 remaining plaintiffs with no reference to having any assignments. 18 NORD'S position is that ABEL has fabricated his alleged assignments in his first 19 amended complaint herein by backdating his alleged assignments to a date before former 20 plaintiffs were dismissed as requested which may not have been signed by these former plaintiffs 21 in the Lieblina action. (See accompanying Declaration of Edward McCutchan, par. 7-10 and 23 Exhibits "A" and "B" thereto). ABEL'S failure to comply with NORD'S July 8, 2022 discovery requests upon him 25 before this court as to his alleged assignments is evidence in and of itself that ABEL is 26 perpetrating a fraud upon the defendants and the court in this action. 27 28 The burden of proof of under California Evidence Code section 500 is on the party to MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT JAMES NORD'S MOTION TO COMPEL PLAINTIPF RICHARD ABEL'S RFSPONSES TO FORM INTERROGATORIES, SPECIAL INTERROGATORIES, REQUESTS FOR ADMISSION, IiEQUESTS FOR PRODUCTION OF DOCUMENTS, SET ONE AND FOR MONETARY SANCTIONS 2 whose case the fact is essential. In this action, ABEL bears the burden of proof concerning his 2 causes of action in his November 16, 2020 amended complaint in this action under Evidence 3 Code section 500. The April 26, 2022 filed request for judicial notice as to the certified copy of the "Order 6 of Discharge" concerning Robert Zuckerman's Chapter 7 Bankruptcy in this action demonstrates why ABEL refuses to comply with NORD'S discovery on him, Dale Davis'iscovery on him 8 and why ABEL refuses to attend his face-to-face deposition in March 2022. ABEL has filed and pursued a frivolous action in that he has no damages as a matter of law. 10 II PRESENT DISCOVERY DISPUTE BETWEEN ABEL AND NORD 12 ABEL was served with NORD'S first set of written discoveiy on July 8, 2022 consisting 13 14 of admissions, special inteITogatories, form interrogatories and document requests. (See par. 4-16 to the accompanying Declaration of Edward McCutchan and attached exhibits). 16 On August 8, 2022, ABEL responded to NORD'S first set of written discovery with 17 improper objections and no document production on matters that ABEL is well aware of and 18 within his knowledge, control and possession pertaining to his claims in his November 16, 2020 19 20 amended complaint in this action. (See par. 4-16 to the accompanying Declaration of Edward McCutchan and attached exhibits). 22 Counsel for NORD sent ABEL a "meet and confer letter" on September 8, 2022 to 23 resolve his improper objections to the served July 8, 2022 discovery on him, documents that are 24 relevant to his perceived fabricated assignment claims in this action in first amended complaint 26 herein at par. 14, 64-72 and 74-76 with one telephone call on September 13, 2022 and emails on September 14, 2022 and the following day to and from ABEL. 28 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT JAMES NOI1D'S MOTION TO COMPEL PLAINTIFP RICIIARD ABEL'S RESPONSES TO FORM INTERROGATORIES, SPECIAL INTERROGATORIES, REQUESTS FOR ADMISSION, REQUESTS FOR PRODUCTION OP DOCUMENTS, SET ONE AND FOR MONETARY SANCTIONS 3 It is abundantly clear that ABEL does not desire to address his fabricated assignments 2 that are backdated and are not signed by former plaintiffs in the Liebling action. Such is one of 3 the reasons that ABEL refused to attend his March 2022 deposition in person. HI ABEL'S OBJECTIONS TO NORD'S JULY 8, 2022 DISCOVERY REQUESTS ARK LACK A FACTUAL AND LEGAL BASIS WHERE PROPER ANSWERS AND DOCUMENT PRODUCTION ARE MANDATED A principal feature of the discovery act is that most discovery requests are self-executing 9 and do not consume court time. A mere "objection" does nothing but invite a motion to compel. (Zellerino v. Brown (1991) 235 Cal App. 3d 1097, 11110. "California law provides parties with 11 expansive discovery rights." (Looez v. Watchtower Bible d'cTract Societv ofIJI.Y., Inc. (2016) 246 12 Cal. App. 4th 566, 590-591. Specifically, the Code provides that "any party may obtain 13 discoveiy regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action or to the determination of any motion made in that action, if the matter either 16 is itself admissible in evidence or appears reasonably calculated to lead to the discovery of 17 admissible evidence." ( CCP 2017.010; see also, Garamendi I'J v. Golden Eat.le Ins. Co. (2004) 18 116 Cal. App. 4th 694, 712, fn. 8). "For discovery purposes, information is relevant if it 'might 19 28 reasonably assist a party in evaluating the case, preparing for trial, or facilitating settlement..." (See L~oez supt a, 246 Cal.App.4th at 590-591, citing Garamendi. supra, 116 Cal.App.4th at 22 712, fn. 8. "Admissibility is not the test and information[,] unless privileged, is discoverable if it 23 might reasonably lead to admissible evidence." (Ibid). "These rules are applied liberally in favor 24 of discovery, and (contraiy to popular belief), fishing expeditions are permissible in some cases." 26 Id. The scope of discovery is one of reason, logic, and common sense. (Linton v. Suoerior Court (1996) 48 Cal.App.4th 1599, 1612). The right to discovery is generally liberally construed. 28 (Williams v. Suoerior Court (2017) 3 Cal.5th 531, 540). MEMORANDUM OF POINTS AND AUTHORlTIES IN SUPPORT OF DEFENDANT JAMES NORD'S MOTION TO COMPEL PLAINTIPF RICFIARD ABEL'S RESPONSES TO FORM INTERROGATORIES, SPECIAL INTERROGATORIES, REQUESTS FOR ADMISSION, REQUESTS FOR PRODUCTION OF DOCUMENTS, SET ONE AND FOR MONETARY SANCTIONS "Parties, like witnesses, are required to state the truth, the whole tmth, and nothing but 2 the truth in answering written requests. (Devo v. Kilbourne (1978) 84 Cal. App. 3d 771, 783. 3 CCP It2017.010 provides the following; Unless otherwise limited by order of the court in accordance with this title, any party may obtain discoveiy regarding any matter, not privileged, 6 that is relevant to the subject matter involved in the pending action or to the determination of any motion made in that action if the matter either. is itself admissible in evidence or appears 8 reasonably calculated to lead to the discovery of admissible evidence. Discovety may relate to 9 the claim or defense of the party seeking discoveiy or of any other party to the action. Discovery 10 may be obtained of the identity and location of persons having knowledge of any discoverable 12 matter, as well as of the existence, description, nature, custody, condition, and location of any 13 document, electronically stored information, tangible thing, or land or other property. 14 NORD'S REOUEST FOR ADMISSIONS SET ONK, RKOUKSTS 1 THROUGH 22) 15 CCP IJ2033.290 provides the following: 16 17 "On receipt of a response to requests for admissions, the patty requesting admissions may move for an order compelling a further response if that party deems that either or both of the 19 following apply: (1) An answer to a particular request is evasive or incomplete. (2) An objection 20 to a particular request is without merit or too general." 21 22 ABEL'S responses to NORD'S July 8, 2022 admissions are: 23 "Objection. This request is improper because it violates CCP section 2033.060. Pursuant to CCP section 2033.060 (g), Responding Party demands make the original document available 25 for inspection. Objection. Propounding Party's definition of "you" is impermissibly overbroad 26 and violates CCP sections 2020.010 and 2033.010." 27 28 "Objection. This request is improper because it violates CCP section 2033.060. Objection MEMORANDUM OP POINTS AND AUTHORITIES IN SUPPORT OP DEFENDANT JAMES NORD'S MOTION TO COMPEL PLAINTIFF RICI.IARD ABEL'S RESPONSES TO PORM INTERROGATORIES, SPECIAL INTERROGATORIES, REQUESTS FOR ADMISSION, REQUESTS FOR PRODUCTION OF DOCUMENTS, SET ONE AND FOR MONFTARY SANCTIONS 5 the terms "Sunderland/McCutchan," "represented," and "any legal matter" are undefined and 2 therefore vague and ambiguous as used in this request. Responding Party further objects to this 3 request as overbroad. Responding Party objects to this request as discoveiy has not been completed and is continuing." 6 Nord's admission requests seek that ABEL admit that ABEL drafted Exhibits I through 20 of the claimed assignments of former Lieblinu plaintiffs attached to the admission request. 8 NORD'S admission requests 21 and 22 seek that ABEL admit that Sunderland ~ McCutchan, 9 Inc., who ABEL sued as a DOE defendant, never represented him at any time. ABEL'S 10 objections to these clearly defined admission requests create an inference that ABEL fabricated 12 his assignments and forged signatures of former Lieblinu plaintiffs who requested to be 13 dismissed and were dismissed by Sunderland ~ McCutchan, LLP. 14 As discussed in NORD'S Separate Statement, and in the September 8, 2022 "meet and 15 confer letter" (Exhibit "9" to the accompanying Declaration of Edward MCCutchan), ABEL 16 served meritless objections to NORD'S first request for admissions on him. Accordingly, the Court is authorized to compel further responses to NORD'S admissions on ABEL for the reasons 19 so stated. 20 NORD'S DOCUMENT REOUESTS SET ONE 21 22 As stated in the accompanying Declaration of Edward McCutchan, and detailed in the 23 Separate Statement included herewith, ABEL served meritless objections to actual documents that ABEL authored and now refuses to produce documents that he most likely would have with 25 former Liebline plaintiffs. 26 ABEL'S failure to produce documents demonstrating the foundation for his alleged 27 assignments form former Liebling plaintiffs demonstrates that he fabricated this lawsuit against MEMORANDUM OF POINTS AND AUTI.IORITIES IN SUPPORT OF DEPENDANT JAMES NORD'S MOTION To COMPEL PLAINTIFF RICHARD ABEL'S RESPONSES TO PORM INTERROOATORIFS, SPECIAL INTERROGATORIES, REQUESTS FOR ADMISSION, RFQUESTS POR PRODUCTION OF DOCUMFNTS, SET ONE AND FOR MONETARY SANCTIONS 6 all named defendants on this action and is perpetrating a fraud on the defendants and this court. NORD'S FORM INTERROGATORIES SET ONK ABEL objected to many of the judicial council form interrogatories on privacy grounds or were vague based upon the definition of the incident which is the grounds for ABEL'S action 6 (as to foundational questions as to him) or "Objection. This request is improper because it violates CCP section 2033.060" as to form interrogatory 17.1 pertaining to NORD'S first 8 admissions requests on him, requests 1 through 22. 9 Judicial council form interrogatories like the one's objected to by ABEL are pretty much 10 objection proof. ABEL'S objections to NORD'S form interrogatories at issue before this court 12 are without merit and must be answered as a matter of law. 13 NORD'S SPECIAL INTERROGATORIES SKT ONE 14 Nord's special interrogatories set one (requests 1 through 21) seeks ABEL to state the 15 specific date (month, date, and year) where each of the claimed assignments were allegedly 16 signed, and the names and addresses of all witnesses to such, as well as terms and conditions as to such. 19 These requests go directly to NORD'S defense that ABEL is perpetuating a fraud by 20 backdating his claimed assignments on him, the other defendants in this action, and the court. 21 22 For ABEL to refuse to answer all twenty-one (21) special interrogatory requests based on 23 meritless objections demonstrates that he fabricated this lawsuit against all named defendants in this action and is perpetrating a fraud on the defendants and this court. (See accompanying 25 Declaration of Edward Mccutchan and Exhibit's "A" and "B" thereto, where on May 29, 2014, 26 ABEL admits that he has no written assignments, On October 6, 2014 he admits that he is still 27 20 tiying to obtain assignments yet ABEL'S claimed assignments are dated 2011, 2012 and 2013 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT JAMES NORD'S MOTION TO COMPEL PLAINTIFF RICHARD ABEL'S RESPONSES TO FORM INTERROGATORIES, SPECIAL INTERROGATORIES, REQUESTS FOR ADMISSION, REQUESTS FOR PRODUCTION OF DOCUMENTS, SET ONE AND FOR MONETARY SANCTIONS 7 but all Liebline plaintiffs who wanted to be dismissed were dismissed by early December 2013. IV MONETARY SANCTIONS AGAINST ABEL ARE WARRANTED CONCERNING THIS MOTION CCP II2033.290(b) provides that this motion "shall be accompanied by a meet and confer declaration under Section 2016. 040." A meet and confer declaration in support of a motion shall state facts showing a reasonable and good faith attempt at an informal resolution of each issue 8 presented by the motion. (CCP II2016.040). Per the accompanying declaration of Edward 9 McCutchan, NORD sent three (3) separate meet and confer letters to ABEL outlining the 10 deficiencies in his admission responses allowing additional days to remedy his deficient 12 responses. 13 "To the extent authorized by the chapter governing any particular discovery method or 14 any other provision of this title, the court, after notice to any affected party, person, or attorney, 15 and after opportunity for hearing may impose ...sanctions against anyone engaging in conduct 16 that is a misuse of the discoveiy process..." CCP II2023.030. "Misuses of the discoveiy process include but are not limited to... (e) Making, without substantiaijustification, an 19 Iuimeritorioas obj ection to discovery... (fl Making an evasive response to discovery... (h) 20 Making or opposing, unsuccessfully and without substantial justification, a motion to compel or 21 to limit discovery...." (CCP II2023.010). 23 "The court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against any party, person, or attorney who unsuccessfully makes or opposes a motion 25 to compel a further response, unless it finds that the one subject to the sanction acted with 26 substantial justification or that other circumstances make the imposition of the sanction unjust." 27 CCP II2033.290(d). (Emphasis added). MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT JAMES NORD'S MOTION TO COMPEL PLAINTIFF RICHARD ABEL'S RESPONSES TO PORM INTERROGATORIES, SPECIAL INTERROGATORIES, REQUESTS FOR ADMISSION, REQUESTS FOR PRODUCTION OP DOCUMENTS, SET ONE AND FOR MONETARY SANCTIONS 8 These sanctions may be awarded under the Discovery Act in favor of a party who files a 2 motion to compel discoveiy, even though no opposition to the motion was filed, or an opposition 3 to the motion was withdrawn, or the requested discoveiy was provided to the moving party after the motion was filed. (Cal. Rules of Ct., Rule 3.1030(a)). In the present case, there is no excuse 6 or justification for ABEL'S refusal to provide further responses to the subject admission requests that contain documents that he authored that. 8 The accompanying declaration of Edward McCutchan herewith attests to the efforts expended 9 on the part of this moving party to avoid this motion. The purpose of discovery sanctions is to 10 prevent abuse of the discovery process and correct the problem presented. (Do v. Superior Court (2003) 109 Cal. App. 4th 1210, 1213). 13 The court can infer that had ABEL not fabricated his claimed assignments in the Lieblinu 14 action that are designated as exhibits to NORD'S first request for admissions on him (either by 15 backdating and/or signing the names of former plaintiffs himself), ABEL would have properly 16 17 responded to NORD'S July 8, 2022 discovery on him without objection. ABEL'S objections to NORD'S discoveiy in this motion are in the same vein as his refusal to attend his duly noticed 19 March 2022 deposition. 20 It is evident from the facts presented that ABEL will not comply with this authorized 21 method of discoveiy absent a court order. The imposition of sanctions of $ 3,290.00 requested in 23 the accompanying declaration of Edward McCutchan should be assessed against ABEL or attorney time in bringing this motion payable within 4$ after notice of the order atter hearing. 25 V 26 CONCLUSION 27 Moving party, NORD, requests that this Court grant his motion to compel further verified 28 responses by ABEL to his separate first set of requests for admissions either admitting or MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OP DEPENDANT JAMES NORD'S MOTION TO COMPEL PLAINTIPF RICHARD ABEL'S RESPONSES TO Poiuii INTFRROGATORIES, SPECIAL INTERROGATORlES, REQUESTS FOR ADMISSION, REQUESTS FOR PRODUCTION OF DOCUMENTS, SET ONF. AND FOR MONETARY SANCTIONS 9 denying his requests, answering his first set of form interrogatories properly, producing the 2 requested documents in the first request for production, and proper answers to special 3 interrogatories on him within 45 days after notice of the order after hearing and order ABEL to 4 pay James Nord $ 3,290.00 in monetary sanctions payable to Sunderland ~ McCutchan, LLP, 8 within 45 days after notice of the order after hearing. Date: September, 2022 SUNDERLANDi McCUTCHAN,LLP 8 10 Edwa McCutchan Atto eys for Defendant 12 JAM $ NORD aka JIM N RD as an individual and on BehaKaM8-Patrick Trust and Mein Trust 13 sued as DOE 5 15 17 18 19 20 21 22 23 25 27 28 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT JAMES NORD'S MOTION TO COMPEL PLAINTIFP RICHARD AEEL'S RESPONSES TO FORM INTERROGATORIES, SPECIAL INTERROGATORIES, REQUESTS FOR ADMISSION, REQUESTS FOR PRODUCTION OP DOCUMENTS, SET ONE AND FOR MONETARY SANCTIONS 10 1 PROOF OF SERVICE STATE OF CALIFORNIA, COUNTY OF SONOMA I am employed in the County of Sonoma, State of California. I am over the age of 18 and not a party to the within action; my present address is: 1083 Vine Street, Suite 907, Healdsburg 5 California 95448. 6 On September, 2022, I served the foregoing documents described as 7 MEMORANDUM OF, p TS AND AUTHORITIES IN SUPPORT OF DEFENDANT JANE S 8 NORD'S MOTION TO COMPEL PLAINTIFF RICHARD ABEL'S RESPONSES TO FORM 9 INTERROGATORIES, SPECIAL INTERROGATORIES, REQUESTS FOR ADMISSION, REQUESTS FOR PRODUCTION OF DOCUMENTS, SKT ONK AND FOR MONETARY 12 SANCTIONS on the parties by placing a true copy thereof enclosed in a sealed envelope addressed 13 as follows: 14 SKK ATTACHED SERVICE LIST 15 Regular U.S. Mail. The documents were placed for collection and mailing following 16 iness practice for deposit in the United States Postal Service in a sealed envelope with 17 postage thereon fully prepaid, addressed as stated above. 18 By personal service. I caused each such envelope to be delivered by hand to the addressee(s', 19 as stated above. 20 By facsinule transmitted from (707) 433-0379. The document transmission was reported as 21 complet nd without elTor. 22 By email or electronic transmission. I caused the document to be sent to the persons at the 23 email addresses listed below. I did not receive within a reasonable time after the transmission any 24 electronic message or other indication that the transmission was unsuccessful. 25 26 27 is true and correct and that this declaration was executed on Septembe California. I, I declare under penalty of perjury under the laws of the State of California that the foregoing 2022, at Healdsburg. 28 Edward Mq(."Utchan ) MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDAAT-~DIED'S MOTION TO COMPEL PLAINTIFF RICHARD AEEL'S RESPONSES TO FORM INTERROGATORIES, SPECIAL INTERROGATORIES, REQUESTS POR ADMISSION, REQUESTS FOR PRODUCTION OF DOCUMENTS, SET ONE AND POR MONETARY SANCTIONS 11 Abel v. McCutchan, et al. Sonoma County Superior Court Case No. SCV-263456 3 Plaintiff in Pro Per: Richard Abel Richard Abel USPS FIRST CLASS MAIL - ONLY 707 Hahman Drive, ¹9301 Santa Rosa, CA 95405-9301 Tel: (707) 340-3894 E-Mail:DererelQEmaih corn 9 Defendant in Pro Per: Nansi Weil (DOE 15) KLKCTRONIC SKRVICK — ONLY 10 Nansi Weil 5445 Bader Road Santa Rosa, CA 95409 12 E-Maih nansi(Rraimentchandler.corn 13 Attorneys for Defendants: Sunderland ~ McCutchan, Inc.; Sunderland ~ McCutchan, LLP, B. Edward McCutchan, Jr. 15 Joseph S. Picchi, Esq. KLKCTRONIC SKRVICK - ONLY Aaron T. Schultz, Esq. Alexander Promm, Esq. 17 Galloway, Lucchese, Everson & Picchi A Professional Corporation 18 2300 Contra Costa Blvd., Suite 350 Pleasant Hill, CA 94523-2398 Tel. No. (925) 930-9090 Fax No. (925) 930-9035 E-Mail:aschultz(@alattvs.corn 21 22 23 25 26 27 28 MEMORANDUM OF POINTS AND AUTHOIUTIES IN SUPPORT OF DEPENDANT JAMES NORD'S MOTION To COMPEL PLAINTIFF RICHARD ABEL'S RESPONSES TO PORM INTERROGATORIFS, SPECIAL INTERROGATORIES, REQUESTS FOR ADMISSION, REQUESTS FOR PRODUCTION OP DOCUMENTS, SET ONE AND FOR MONETARY SANCTIONS 12