Party Discovery: IN THE MATTER OF IN RE REVOCABLE LIVING TRUST AGREEMENT OF CHARLES ACTIS/CONSOLIDATED WITH CASE NO. PES-05-287457

• 
• 
• 
• 
• 
• 
• 
• 

						
                                
Preview
                                ICAO EMA

San Francisco Superior Courts
Information Technology Group

Document Scanning Lead Sheet
Jun-08-20068 8:17 am

Case Number: PTR-05-287341
Filing Date: Jun-06-2006 8:15
Juke Box: 001 Image: 01463682
MEMORANDUM OF POINTS AND AUTHORITIES

IN THE MATTER OF IN RE REVOCABLE LIVING TRUST AGREEMENT OF CHARLES AC -

001P01463682

Instructions:
Please place this sheet on top of the document to be scanned.wo 8D XY D HW Bw NH

NON N NN NN NY NH YF BB ee eB ee Pie
oy A YU FB Wry FP OD 6b oD st AH B® WH EP OC

SPELLMAN & MITCHELL

Attorneys at Law

Dean M. Spellman, #060042

Robert B. Mitchell, #074795

1850 Mt. Diablo Blvd., Ste. 670
Walnut Creek, California 94596-4407
Telephone: (925) 938-5880

Attorney for CAROL MITCHELL

IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF SAN FRANCISCO

IN RE REVOCABLE LIVING TRUST Case Number PTR-05-287341
AGREEMENT OF CHARLES ACTIS i (Related Case No. PES 05-287457)
DATED NOVEMBER 2 2004" DISCOVERY
: MEMORANDUM OF POINTS AND
AUTHORITIES IN SUPPORT OF
CAROL MITCHELL, MOTION FOR ORDER TO COMPEL
RESPONDENT EVA KNOTT TO
Petitioner, RESPOND TO INTERROGATORY AND

IMPOSING MONETARY SANCTIONS

Date: July_&@, 2007
EVA V. KNOTT, Trustee and Beneficiary Time: 10:30 a.m.
under the REVOCABLE LIVING TRUST Dept. No: 612

vs.

AGREEMENT OF CHARLES ACTIS Fiting Date: May 4, 2005
DATED 11/2/04, NICHOLAS FERRERO, Judge: John Dearman
a minor and a will and trust beneficiary Trial Date: Not Assigned

and NATALIE FERRERO, a minor and a
will and trust beneficiary,

Respondents.

|_ INTRODUCTION

Through this motion, petitioner seeks to obtain an answer to a single
interrogatory which, in spite of every attempt to assist Respondent, Respondent has

refused to answer.

MEMORANDUM OF POINTS AND AUTHORITIES IN
SUPPORT OF MOTION FOR ORDER TO COMPEL
RESPONDENT EVA KNOTT TO RESPOND TO.
INTERROGATORY AND IMPOSING MONETARY
SANCTIONSll, FACTUAL BACKGROUND

On April 3, 2006, Respondent was served with Petitioner's Supplemental
Interrogatory. Respondent's response was due Mya 8, 2006. Having received no
answer within the required time, a demand was made for compliance. In response
Petitioner’s counsel was promised an answer would be forthcoming. Next, Petitioner
was requested to provide a copy of the subject interrogatory - that was done. Next,
Petitioner was asked to provide copies of the underlying interrogatories and answers -
this again was done. Yet after providing such requested information, Respondent
advises that she will not answer the subject interrogatory, Consequently, this motion is
made to obtain an answer to the single outstanding interrogatory and obtain sanctions.
In this regard, this court is invited to review its own file in connection with discovery
matters and it can be seen that Respondent has at every opportunity, thwarted the
discovery process. Sanctions should be awarded here.

UL AUTHORITY

A. Motion to Compel Response to Interrogatories. Unless excused by
Protective order, the party to whom the interrogatories are directed is under a duty to
respond to each question separately, under oath, and within the Stated time limits. CCP
§ 2030.210(a).

B. Delay in Responding To Interrogatory WAIVES Objection: Failing to respond

within the time limit waives most objections to the interrogatories ... including claims of
Privilege and ‘work product’ protection. CCP § 2030.290(a); Leach v. Sup.Ct. (1980)
111 CA3d 902, 905-906.

C. Sanctions for Failure to Respond. Failure to respond to interrogatories is a
“misuse of the discovery process.” CCP § 2023.010(d)-(f). The propounding party's
remedy is to file a motion to compel answers and to seek monetary sanctions. CCP §§
2030.290, 2030.300.

D. Monetary Sanctions on Motion to Compel. If the motion to compel is granted,

MEMORANDUM OF POINTS AND AUTHORITIES IN
SUPPORT OF MOTION FOR OROER TO COMPEL
RESPONDENT EVA KNOTT TO RESPOND TO
INTERROGATORY AND IMPOSING MONETARY
SANCTIONS:© 89D YI HD OH ® Wn Le

NN NNN NN NN BF BB Be Be ee ep BS
ory nn es WH He Ge wMeH DH eKaH ES

the court may order the party to whom the interrogatories were directed to pay the
propounding party's reasonable expenses, including attorney fees, in enforcing
discovery. CCP § 2023.030(a),

E._No Attempt to Resolve Informally Required. The moving party is not required
to show a ‘reasonable and good faith attempt’ to resolve the matter informally with

opposing counsel! before filing the motion. CCP § 2030.290; Leach v. Sup.Ct, supra.
IV. CONCLUSION

For the reasons set forth above and in the herein accompanying Declaration of
Robert B. Mitchell, Petitioner respectfully requests that this court enter an order
compelling Respondent to answer Petitioner Supplemental Interrogatory Number 1 and
award sanctions of $1,806.30. A copy of the proposed order is attached hereto and
marked as Exhibit “G”,

Dated: June 5, 2006.

ROBERT B. MITCHELL, Attorney f
Petitioner

MEMORANDUM OF POINTS AND AUTHORITIES IN
SUPPORT OF MOTION FOR ORDER TO COMPEL
RESPONDENT EVA KNOTT TO RESPOND TO
INTERROGATORY AND IMPOSING MONETARY
SANCTIONS