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Oct-05-2005 1:36 pm
Case Number: PTR-05-287341
Filing Date: Oct-05-2005 1:36
Juke Box: 001 Image: 01297402
GENERIC PROBATE PLEADING
IN THE MATTER OF IN RE REVOCABLE LIVING TRUST AGREEMENT OF CHARLES AC
001P01297402
Instructions:
Please place this sheet on top of the document to be scanned.eo OBA HA oO FF WN B
NN NN NY NY KH DN BP BB BH BP Be Pp ie
aon nan YU FS WY NS FP DO Sb GB HS HO HH BF WwW NY fF OO
SPELLMAN & MITCHELL
Attorneys at Law
Dean M. Speltman, #060042
Robert B. Mitchell, #074795
1850 Mt. Diablo Blvd., Ste. 670
- Walnut Creek, California 94596-4407
Telephone: (925) 938-5880
Attorney for CAROL MITCHELL
F * de
OCT 05 2005
GORDON PAR CL, Clerk
Clerk
IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF SAN FRANCISCO.
IN RE REVOCABLE LIVING TRUST
AGREEMENT OF CHARLES ACTIS
DATED NOVEMBER 2, 2004, AND WILL
DATED NOVEMBER 2, 2004
CAROL MITCHELL,
Petitioner,
vs.
EVA V. KNOTT, Trustee and Beneficia
under the REVOCABLE LIVING TRUS
AGREEMENT OF CHARLES ACTIS
DATED 11/2/04, NICHOLAS FERRERO,
a minor and a will and trust beneficiary
and NATALIE FERRERO, a minor and a
will and trust beneficiary,
Respondents.
Case Number PTR-05-287341
DISCOVERY
SEPARATE STATEMENT IN SUPPORT
OF MOTION FOR ORDER DIRECTING
COMPLIANCE WITH SUBPOENA
DUCES TECUM AND FOR EXPENSES.
OF THE MOTION
Date: October 31, 2005
Time: 10:30 a.m.
Dept. No: 612
Filing Date: May 4, 2005
Judge: John Dearman
Trial Date: Not Assigned
This Separate Statement is submitted in support of the motion by Petitioner
CAROL MITCHELL to compel attorney DAVID FRIEDENBERG to produce documents
or things specified in the two (2) deposition subpoenas attached hereto and marked as
Exhibits “A” and “C”, respectively. As required under California Rules of Court, Rule
335, this statement provides information relating to the discovery requests and the
responses at issue in the motion, as follows:
SEPARATE STATEMENT IN SUPPORT OF MOTION FOR
ORDER DIRECTING COMPLIANCE WITH SUBPOENA
DUCES TECUM AND FOR EXPENSES OF THE MOTIONowt Dn wu
C C
SUBPOENA DATED AUGUST 26 (EXHIBIT “A”)
1, Documents Subpoenaed
Any and all documents which in any way relate to or reference your
Tepresentation of each and every trustee of any trust in which Charles Actis was the
trustor, including, but not limited to, notes, letters, memorandums, telephone
messages, pleadings, depositions, video tapes, audio tapes, reports, checks, bank
records, documents of title, inventory, accounting records, time records, and/or billing
statements.
2. Witnesses’ Response
DAVID J. FRIEDENBERG, ESQ., does hereby Object to the Subpoena Duces
Tecum dated August 26, 2005 and served on him in court by Dean M. Spellman,
attorney for Petitioner, on the following grounds: said subpoena duces tecum does not
comply with the requirements of California Code of Civil Procedure §§1985, 1985.3 and
1987. Objection is also made on the grounds that the request for documents is
overbroad and burdensome in that it requests “any and all documents which in any way
relate to Charles Actis...”, including the attorney's accounting records, time records,
and/or billing statements”. Said subpoena and affidavit fail to show great cause for
production of said items, and fails to specify the exact matters and things desired to be
produced, setting forth in detail the materiality thereof to the issues involved in the case.
Said subpoena was signed by Dean M. Spellman, attorney for Petitioner herein, to
David Friedenberg, attorney for Respondent in this litigation. Said subpoena requests
the documents be sent to Petitioner's attorney, Dean M. Spellman, not to an
independent “deposition officer for copying. Mr. Spellman is not a proper “deposition
officer” as defined by CCP §2020. The overbroad subpoena seeks “all documents
which in any way relate to Charles Actis...” would include attorney work product in the
instant case, and documents subject to privilege by other clients. Said subpoena further
seeks documents already in the possession of Petitioner and her attorneys, and record
or documents that are not reasonably calculated to lead to any admissible evidence.
‘SEPARATE STATEMENT IN SUPPORT OF MOTION FOR
ORDER DIRECTING COMPLIANCE WITH SUBPOENA
DUCES TECUM AND FOR EXPENSES OF THE MOTIONNn on B® WN PB
3. Argument
a. CCP §§1985, 1985.3, and 1987
On September 21, 2005, moving party's attorney requested that Mr. Friedenberg
specifically state what his objections were as to these code sections. See Exhibit “E",
second paragraph. In response thereto, Mr. Friedenberg advised counsel that these
objections centered on the fact that petitioner's counsel was not a “proper deposition
officer" and that the supporting deposition dectaration did not show “good cause”. See
Exhibit ‘F” hereto, fourth paragraph. These two points will be addressed in items b,c.
and d. hereafter,
b, Overbroad and Burdensome
As can be seen from the attached Exhibit “A”, the first subpoena seeks
the following documents from Mr. Friedenberg:
Any and all documents which in any way relate to or reference your
representation of each and every trustee of any trust in which Charles Actis was
the trustor, including, but not limited to, notes, letters, memorandums, telephone
messages, pleadings, depositions, video tapes, audio tapes, reports, checks,
bank records, documents of title, inventory, accounting records, time records,
and/or billing statements.
The second subpoena (Exhibit “C” hereto) seeks the following documents:
Any and all documents which in any way relate to or reference your
representation of each and every trustee of any trust in which Charles Actis was
the trustor, including, but not limited to, notes, ietters, memorandums, telephone
messages, pleadings, depositions, video tapes, audio tapes, reports, checks,
bank records, documents of title, inventory, accounting records, time records,
and/or billing statements
As to the burdensome and oppressive objection, it is not enough that the
question will require a lot of work to answer. It must be shown that the burden of
answering is so unjust that it amounts to oppression. West Pico Furn. Co. v, Sup Ct.,
(1961) 56 C2d 407, 419. The court, in determining whether the burden is unjust,
undertakes a weighing process. It must appear that the amount of work required to
answer the questions is so great, and the utility of the information sought so minimal,
that it would defeat the ends of justice to require the answers. See Columbia
SEPARATE STATEMENT IN SUPPORT OF MOTION FOR
ORDER DIRECTING COMPLIANCE WITH SUBPOENA
DUCES TECUM AND FOR EXPENSES OF THE MOTIONAn oO fF Why RB
Broadcasting System, Inc. v. Sup. Ct. (1968) 263 CA2d 12, 19, 69 CR 348, 352; and
+West Pico Furn. Co. v. Sup. Ct., supra.
Here, attorney Friedenberg gives no factual basis for his objection. Attorney
Friedenberg does not state how many files he has; how many documents he has; or
how voluminous such documents are. Such a boilerplate objection without factual
altegations is simply intended to avoid production of the subject documents. Following
the service of this objection, counsel had a conversation and in that conversation, Mr.
Friedenberg acknowledged the fact that he had only three (3) files involving Mr. Actis:
the August Will file, the Will/Trust file of November and the Deed of Trust file regarding
the “loan” to Respondent. See Exhibit “E” hereto, fourth Paragraph. A fourth file was
added to his list: a conservatorship file involving Mr. Actis. See Exhibit “F” hereto,
seventh paragraph.
As to the objection of “overbroad”, seeking documents regarding one's client
over a relatively short period of time (approx. August 2004 through January 2005)
cannot realistically be asserted as “overbroad” . In attorney Friedenberg's meet and
confer letter (Exhibit “F*), he asks for the justification for requesting documents having
no relationship to the within action. {n fact, all of the documents of Mr. Friedenberg as
to Mr. Actis are relevant to the within action. One of the central issues here is undue
influence and/or mental competence and Mr. Friedenberg's documents relating to Mr.
Actis, whatever they are, could bear upon those central issues. Furthermore, what was
said to Mr. Actis and what advise Mr. Friedenberg provided to Mr. Actis may all lead to
admissible evidence.
c. Affidavit Re Good Cause and Matters To Be Produced
The declaration supporting the subject subpoena sets forth that the subject
action involves the circumstances surrounding the execution of various wills and trusts
and the influences and mental condition present at the time decedent undertook various
transactions. The nature of the work performed by Mr. Friedenberg, the extent of the
work performed by Mr. Friedenberg, the identity of the person who paid for the services,
SEPARATE STATEMENT IN SUPPORT OF MOTION FOR
ORDER DIRECTING COMPLIANCE WITH SUSPOENA
DUCES TECUM AND FOR EXPENSES OF THE MOTIONwin
n wm
all could lead to admissible evidence. The subject affidavit meets the requirements of
good cause and as a result thereof, Mr. Friedenberg's objection is without merit.
d. Attorney For Petitioner as “Deposition Officer”
Mr. Friedenberg next assets that the subject subpoena is defective because
Dean M. Spellman, as attorney for Petitioner, cannot serve as a deposition officer. In
support, Mr, Friedenberg sites “CCP §2020". First, there is no CCP §2020 - same was
repealed by 2004 legislative action. Secondly, the subpoenaing attorney may assume
responsibility for the copying of the subject documents. See CCP §2020.420; Evidence
Code Section 1560(e); Weil & Brown, Cal. Prac. Guide: Civ. Pro. Before Trial (The
Rutter Group), §8:547. Mr Friedenberg’s objection on this ground is without merit.
e. Attorney Work Product
As to the work product privilege, California Code of Civil Procedure §2018.030
provides as follows:
(a) A writing that reflects an attorney's impressions, conclusions, opinions,
(b) Ihe work product ofan storey, other ther arene eesemgiances.
subdivision (a), is not discoverable unless the court determines that denial
of discovery will unfairly prejudice the party seeking discovery in preparing
that party's claim or defense or will result in an injustice.
Here, Mr. Friedenberg failed to extend the courtesy of stating the nature of the
documents constituting alleged work product documents. It must therefore be assumed
that the subject documents consist of notes regarding conversations with the decedent,
etc. and as such, such work product should be discoverable. Again, the issues included
here are the competence of the decedent and the presence of undue influence. Mr.
Friedenberg will be testifying at trial as to the entire circumstance surrounding his
client's execution of the estate planning documents, how they came to be prepared and
what was said to him by Mr. Actis. It cannot be imagined what work product could exist
that would not be relevant to all of the issues presented in this action. Clearly, denial
of such discovery would unduly prejudice the preparation of petitioner's claim and
Petitioner's examination and cross examination of attorney Friedenberg.
SEPARATE STATEMENT IN SUPPORT OF MOTION FOR
ORDER DIRECTING COMPLIANCE WITH SUBPOENA.
DUCES TECUM AND FOR EXPENSES OF THE MOTIONwn pr
a uw
f. “Privilege [of] Other Clients”
Asis set forth in moving party’s counsel's letter of September 21, 2005, Exhibit
“E” hereto, paragraph 4, Mr. Friedenberg advised that the files that he had, regarding
Charles Actis, consisted of only three (3) files, plus a small conservatorship file. Mr.
Friedenberg also stated that he had no other files in which Mr. Actis is referred to.
Consequently, there is no “privilege” as to “other clients”. Clearly, by Mr. Friedenberg’s
own admission, the requested documents do not “spill into” other clients’ files,
Consequently, this objection is without merit.
g._ Not Reasonably Calculated To Lead To Admissible Evidence
As stated above, the four (4) files which Mr. Friedenberg possess may lead to
relevant evidence in this action. Each of Mr. Friedenberg's subject four (4) files involve
either the respondent, the decedent, or both. This petitioner is entitled to examine all of
the circumstances and all of the events surrounding all transactions involving the
respondent the decedent and the competence of decedent. It must not be forgotten
that the petitioner has the burden of proof in showing undue influence and/or mental
incompetence and this state's discovery laws provide substantial liberality in permitting
discovery.
h. Requested Documents Already In Possession of Petitioner
Obviously, Mr. Friedenberg’s files are not in the possession of this requesting
party or her attorneys. Having raised this objection in previous objections to the very
same documents requested herein, Mr. Friedenberg was informed that he did not need
to produce such documents but rather, simply inform Petitioner as to which documents
he was withholding so that there would be no misunderstanding as to whether such
documents were in the possession of Petitioner. In spite of this effort to accommodate
Mr. Friedenberg, Mr. Friedenberg continues to avoid producing one (1) document under
the subject subpoena. This is yet another unmeritorious objection that simply
unnecessarily consumes this court’s time.
SEPARATE STATEMENT IN SUPPORT OF MOTION FOR
ORDER DIRECTING COMPLIANCE WITH SUBPOENA
‘DUCES TECUM AND FOR EXPENSES OF THE MOTIONyw amy A TH B® WK BP
Nw NM NY NY NY NY NY NY NY BF BP BP Be Pe Be ee
ony A VY ®& WH FE Ow oD HI DA HO B® WH HF OO
SUBPOENA DATED AUGUST 29 (EXHIBIT “C”)
4. Documents Subpoenaed
Any and all documents which in any way relate to Charles Actis, including, but
not limited to, notes, letters, memorandums, telephone messages, pleadings,
depositions, video tapes, audio tapes, reports, checks, bank records, documents of
title, inventory, accounting records, time records, and/or billing statements.
5. Witnesses’ Response
DAVID J. FRIEDENBERG, ESQ., does hereby Object to the Subpoena Duces
Tecum dated August 29, 2005 and served on him in court by Dean M. Speliman,
attorney for Petitioner, on the following grounds: said subpoena duces tecum does not
comply with the requirements of California Code of Civil Procedure §§1985, 1985.3 and
1987. Objection is also made on the grounds that the request for documents is
overbroad and burdensome in that it requests “any and all documents which in any way
relate to or reference your representation of each and every every {sic] Trustee of any
Trust in which Charles Actis was the Trustor, including but not limited to notes, letters,
memorandums, telephone messages, pleadings, depositions, video tapes, audio tapes,
reports, checks, bank records, documents of title, inventory, accounting records, time
records, and/or billing statements”, Said subpoena and affidavit fail to show great
cause for production of said items, and fails to specify the exact matters and things
desired to be produced, setting forth in detail the materiality thereof to the issues
involved in the case. Said subpoena was signed by Dean M. Spellman, attorney for
Petitioner herein, to David Friedenberg, attorney for Respondent in this litigation. Said
subpoena requests the documents be sent to Petitioner's attorney, Dean M. Spellman,
not ta an independent “deposition officer” for copying. Mr. Speliman is not a proper
“deposition officer” as defined by CCP §2020. The subpoena seeking “Any and all
documents which in any way relate or reference to my representation of each and every
trustee of any Trust in which Charles Actis was Trustor’, seeks documents which are
covered by attorney client privilege for other trustees, and attorney work product.
SEPARATE STATEMENT IN SUPPORT OF MOTION FOR
ORDER DIRECTING COMPLIANCE WITH SUSPOENA
‘DUCES TECUM AND FOR EXPENSES OF THE MOTIONC C
Furthermore, the aforementioned documents sought by said subpoena are not
reasonably calculated to lead to any admissible evidence in this matter.
6. Argument
a. CCP §§1985, 1985.3, and 1987
See section 3a above.
b. Overbroad and Burdensome
See section 3b above.
¢. Affidavit Re Good Cause and Matters To Be Produced
See section 3c above.
d. Attomey for Petitioner as “Deposition Officer”
See section 3d above.
e, Attomey-Client Privilege
As is seen from the accompanying points and authorities, no attorney client
Privilege exists as to the documents sought under either of the subject two (2)
subpoenas. The documents sought herein relate to the “intention or competence” of the
decedent. The attorney client privilege has been negated by the legistature and as such
attorney Friedenberg’s objection is without merit.
f._Attomey Work Product Privilege
See section 3e above.
g._ Not Reasonably Calculated To Lead To Admissible Evidence
As stated above, this petitioner is entitled to examine all of the circumstances
and all of the events surrounding all transactions involving the respondent near the time
when itis alleged he was mentally incompetent and/or subject to undue influence. It
must not be forgotten that the petitioner has the burden of proof of showing undue
influence and/or mental incompetence and this state’s discovery laws provide
SEPARATE STATEMENT iN SUPPORT OF MOTION FOR
ORDER DIRECTING COMPLIANCE WITH SUBPOENA
DUCES TECUM AND FOR EXPENSES OF THE MOTIONsubstantial liberality in permitting discovery.
Dated: September 27, 2005.
OBERT B. MITCHELL, Attorney for
Petitioner
‘SEPARATE STATEMENT iN SUPPORT OF MOTION FOR
ORDER DIRECTING COMPLIANCE WITH SUBPOENA
DUCES TECUM AND FOR EXPENSES OF THE MOTION
Preview
COM San Francisco Superior Courts Information Technology Group Document Scanning Lead Sheet Oct-05-2005 1:36 pm Case Number: PTR-05-287341 Filing Date: Oct-05-2005 1:36 Juke Box: 001 Image: 01297402 GENERIC PROBATE PLEADING IN THE MATTER OF IN RE REVOCABLE LIVING TRUST AGREEMENT OF CHARLES AC 001P01297402 Instructions: Please place this sheet on top of the document to be scanned.eo OBA HA oO FF WN B NN NN NY NY KH DN BP BB BH BP Be Pp ie aon nan YU FS WY NS FP DO Sb GB HS HO HH BF WwW NY fF OO SPELLMAN & MITCHELL Attorneys at Law Dean M. Speltman, #060042 Robert B. Mitchell, #074795 1850 Mt. Diablo Blvd., Ste. 670 - Walnut Creek, California 94596-4407 Telephone: (925) 938-5880 Attorney for CAROL MITCHELL F * de OCT 05 2005 GORDON PAR CL, Clerk Clerk IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF SAN FRANCISCO. IN RE REVOCABLE LIVING TRUST AGREEMENT OF CHARLES ACTIS DATED NOVEMBER 2, 2004, AND WILL DATED NOVEMBER 2, 2004 CAROL MITCHELL, Petitioner, vs. EVA V. KNOTT, Trustee and Beneficia under the REVOCABLE LIVING TRUS AGREEMENT OF CHARLES ACTIS DATED 11/2/04, NICHOLAS FERRERO, a minor and a will and trust beneficiary and NATALIE FERRERO, a minor and a will and trust beneficiary, Respondents. Case Number PTR-05-287341 DISCOVERY SEPARATE STATEMENT IN SUPPORT OF MOTION FOR ORDER DIRECTING COMPLIANCE WITH SUBPOENA DUCES TECUM AND FOR EXPENSES. OF THE MOTION Date: October 31, 2005 Time: 10:30 a.m. Dept. No: 612 Filing Date: May 4, 2005 Judge: John Dearman Trial Date: Not Assigned This Separate Statement is submitted in support of the motion by Petitioner CAROL MITCHELL to compel attorney DAVID FRIEDENBERG to produce documents or things specified in the two (2) deposition subpoenas attached hereto and marked as Exhibits “A” and “C”, respectively. As required under California Rules of Court, Rule 335, this statement provides information relating to the discovery requests and the responses at issue in the motion, as follows: SEPARATE STATEMENT IN SUPPORT OF MOTION FOR ORDER DIRECTING COMPLIANCE WITH SUBPOENA DUCES TECUM AND FOR EXPENSES OF THE MOTIONowt Dn wu C C SUBPOENA DATED AUGUST 26 (EXHIBIT “A”) 1, Documents Subpoenaed Any and all documents which in any way relate to or reference your Tepresentation of each and every trustee of any trust in which Charles Actis was the trustor, including, but not limited to, notes, letters, memorandums, telephone messages, pleadings, depositions, video tapes, audio tapes, reports, checks, bank records, documents of title, inventory, accounting records, time records, and/or billing statements. 2. Witnesses’ Response DAVID J. FRIEDENBERG, ESQ., does hereby Object to the Subpoena Duces Tecum dated August 26, 2005 and served on him in court by Dean M. Spellman, attorney for Petitioner, on the following grounds: said subpoena duces tecum does not comply with the requirements of California Code of Civil Procedure §§1985, 1985.3 and 1987. Objection is also made on the grounds that the request for documents is overbroad and burdensome in that it requests “any and all documents which in any way relate to Charles Actis...”, including the attorney's accounting records, time records, and/or billing statements”. Said subpoena and affidavit fail to show great cause for production of said items, and fails to specify the exact matters and things desired to be produced, setting forth in detail the materiality thereof to the issues involved in the case. Said subpoena was signed by Dean M. Spellman, attorney for Petitioner herein, to David Friedenberg, attorney for Respondent in this litigation. Said subpoena requests the documents be sent to Petitioner's attorney, Dean M. Spellman, not to an independent “deposition officer for copying. Mr. Spellman is not a proper “deposition officer” as defined by CCP §2020. The overbroad subpoena seeks “all documents which in any way relate to Charles Actis...” would include attorney work product in the instant case, and documents subject to privilege by other clients. Said subpoena further seeks documents already in the possession of Petitioner and her attorneys, and record or documents that are not reasonably calculated to lead to any admissible evidence. ‘SEPARATE STATEMENT IN SUPPORT OF MOTION FOR ORDER DIRECTING COMPLIANCE WITH SUBPOENA DUCES TECUM AND FOR EXPENSES OF THE MOTIONNn on B® WN PB 3. Argument a. CCP §§1985, 1985.3, and 1987 On September 21, 2005, moving party's attorney requested that Mr. Friedenberg specifically state what his objections were as to these code sections. See Exhibit “E", second paragraph. In response thereto, Mr. Friedenberg advised counsel that these objections centered on the fact that petitioner's counsel was not a “proper deposition officer" and that the supporting deposition dectaration did not show “good cause”. See Exhibit ‘F” hereto, fourth paragraph. These two points will be addressed in items b,c. and d. hereafter, b, Overbroad and Burdensome As can be seen from the attached Exhibit “A”, the first subpoena seeks the following documents from Mr. Friedenberg: Any and all documents which in any way relate to or reference your representation of each and every trustee of any trust in which Charles Actis was the trustor, including, but not limited to, notes, letters, memorandums, telephone messages, pleadings, depositions, video tapes, audio tapes, reports, checks, bank records, documents of title, inventory, accounting records, time records, and/or billing statements. The second subpoena (Exhibit “C” hereto) seeks the following documents: Any and all documents which in any way relate to or reference your representation of each and every trustee of any trust in which Charles Actis was the trustor, including, but not limited to, notes, ietters, memorandums, telephone messages, pleadings, depositions, video tapes, audio tapes, reports, checks, bank records, documents of title, inventory, accounting records, time records, and/or billing statements As to the burdensome and oppressive objection, it is not enough that the question will require a lot of work to answer. It must be shown that the burden of answering is so unjust that it amounts to oppression. West Pico Furn. Co. v, Sup Ct., (1961) 56 C2d 407, 419. The court, in determining whether the burden is unjust, undertakes a weighing process. It must appear that the amount of work required to answer the questions is so great, and the utility of the information sought so minimal, that it would defeat the ends of justice to require the answers. See Columbia SEPARATE STATEMENT IN SUPPORT OF MOTION FOR ORDER DIRECTING COMPLIANCE WITH SUBPOENA DUCES TECUM AND FOR EXPENSES OF THE MOTIONAn oO fF Why RB Broadcasting System, Inc. v. Sup. Ct. (1968) 263 CA2d 12, 19, 69 CR 348, 352; and +West Pico Furn. Co. v. Sup. Ct., supra. Here, attorney Friedenberg gives no factual basis for his objection. Attorney Friedenberg does not state how many files he has; how many documents he has; or how voluminous such documents are. Such a boilerplate objection without factual altegations is simply intended to avoid production of the subject documents. Following the service of this objection, counsel had a conversation and in that conversation, Mr. Friedenberg acknowledged the fact that he had only three (3) files involving Mr. Actis: the August Will file, the Will/Trust file of November and the Deed of Trust file regarding the “loan” to Respondent. See Exhibit “E” hereto, fourth Paragraph. A fourth file was added to his list: a conservatorship file involving Mr. Actis. See Exhibit “F” hereto, seventh paragraph. As to the objection of “overbroad”, seeking documents regarding one's client over a relatively short period of time (approx. August 2004 through January 2005) cannot realistically be asserted as “overbroad” . In attorney Friedenberg's meet and confer letter (Exhibit “F*), he asks for the justification for requesting documents having no relationship to the within action. {n fact, all of the documents of Mr. Friedenberg as to Mr. Actis are relevant to the within action. One of the central issues here is undue influence and/or mental competence and Mr. Friedenberg's documents relating to Mr. Actis, whatever they are, could bear upon those central issues. Furthermore, what was said to Mr. Actis and what advise Mr. Friedenberg provided to Mr. Actis may all lead to admissible evidence. c. Affidavit Re Good Cause and Matters To Be Produced The declaration supporting the subject subpoena sets forth that the subject action involves the circumstances surrounding the execution of various wills and trusts and the influences and mental condition present at the time decedent undertook various transactions. The nature of the work performed by Mr. Friedenberg, the extent of the work performed by Mr. Friedenberg, the identity of the person who paid for the services, SEPARATE STATEMENT IN SUPPORT OF MOTION FOR ORDER DIRECTING COMPLIANCE WITH SUSPOENA DUCES TECUM AND FOR EXPENSES OF THE MOTIONwin n wm all could lead to admissible evidence. The subject affidavit meets the requirements of good cause and as a result thereof, Mr. Friedenberg's objection is without merit. d. Attorney For Petitioner as “Deposition Officer” Mr. Friedenberg next assets that the subject subpoena is defective because Dean M. Spellman, as attorney for Petitioner, cannot serve as a deposition officer. In support, Mr, Friedenberg sites “CCP §2020". First, there is no CCP §2020 - same was repealed by 2004 legislative action. Secondly, the subpoenaing attorney may assume responsibility for the copying of the subject documents. See CCP §2020.420; Evidence Code Section 1560(e); Weil & Brown, Cal. Prac. Guide: Civ. Pro. Before Trial (The Rutter Group), §8:547. Mr Friedenberg’s objection on this ground is without merit. e. Attorney Work Product As to the work product privilege, California Code of Civil Procedure §2018.030 provides as follows: (a) A writing that reflects an attorney's impressions, conclusions, opinions, (b) Ihe work product ofan storey, other ther arene eesemgiances. subdivision (a), is not discoverable unless the court determines that denial of discovery will unfairly prejudice the party seeking discovery in preparing that party's claim or defense or will result in an injustice. Here, Mr. Friedenberg failed to extend the courtesy of stating the nature of the documents constituting alleged work product documents. It must therefore be assumed that the subject documents consist of notes regarding conversations with the decedent, etc. and as such, such work product should be discoverable. Again, the issues included here are the competence of the decedent and the presence of undue influence. Mr. Friedenberg will be testifying at trial as to the entire circumstance surrounding his client's execution of the estate planning documents, how they came to be prepared and what was said to him by Mr. Actis. It cannot be imagined what work product could exist that would not be relevant to all of the issues presented in this action. Clearly, denial of such discovery would unduly prejudice the preparation of petitioner's claim and Petitioner's examination and cross examination of attorney Friedenberg. SEPARATE STATEMENT IN SUPPORT OF MOTION FOR ORDER DIRECTING COMPLIANCE WITH SUBPOENA. DUCES TECUM AND FOR EXPENSES OF THE MOTIONwn pr a uw f. “Privilege [of] Other Clients” Asis set forth in moving party’s counsel's letter of September 21, 2005, Exhibit “E” hereto, paragraph 4, Mr. Friedenberg advised that the files that he had, regarding Charles Actis, consisted of only three (3) files, plus a small conservatorship file. Mr. Friedenberg also stated that he had no other files in which Mr. Actis is referred to. Consequently, there is no “privilege” as to “other clients”. Clearly, by Mr. Friedenberg’s own admission, the requested documents do not “spill into” other clients’ files, Consequently, this objection is without merit. g._ Not Reasonably Calculated To Lead To Admissible Evidence As stated above, the four (4) files which Mr. Friedenberg possess may lead to relevant evidence in this action. Each of Mr. Friedenberg's subject four (4) files involve either the respondent, the decedent, or both. This petitioner is entitled to examine all of the circumstances and all of the events surrounding all transactions involving the respondent the decedent and the competence of decedent. It must not be forgotten that the petitioner has the burden of proof in showing undue influence and/or mental incompetence and this state's discovery laws provide substantial liberality in permitting discovery. h. Requested Documents Already In Possession of Petitioner Obviously, Mr. Friedenberg’s files are not in the possession of this requesting party or her attorneys. Having raised this objection in previous objections to the very same documents requested herein, Mr. Friedenberg was informed that he did not need to produce such documents but rather, simply inform Petitioner as to which documents he was withholding so that there would be no misunderstanding as to whether such documents were in the possession of Petitioner. In spite of this effort to accommodate Mr. Friedenberg, Mr. Friedenberg continues to avoid producing one (1) document under the subject subpoena. This is yet another unmeritorious objection that simply unnecessarily consumes this court’s time. SEPARATE STATEMENT IN SUPPORT OF MOTION FOR ORDER DIRECTING COMPLIANCE WITH SUBPOENA ‘DUCES TECUM AND FOR EXPENSES OF THE MOTIONyw amy A TH B® WK BP Nw NM NY NY NY NY NY NY NY BF BP BP Be Pe Be ee ony A VY ®& WH FE Ow oD HI DA HO B® WH HF OO SUBPOENA DATED AUGUST 29 (EXHIBIT “C”) 4. Documents Subpoenaed Any and all documents which in any way relate to Charles Actis, including, but not limited to, notes, letters, memorandums, telephone messages, pleadings, depositions, video tapes, audio tapes, reports, checks, bank records, documents of title, inventory, accounting records, time records, and/or billing statements. 5. Witnesses’ Response DAVID J. FRIEDENBERG, ESQ., does hereby Object to the Subpoena Duces Tecum dated August 29, 2005 and served on him in court by Dean M. Speliman, attorney for Petitioner, on the following grounds: said subpoena duces tecum does not comply with the requirements of California Code of Civil Procedure §§1985, 1985.3 and 1987. Objection is also made on the grounds that the request for documents is overbroad and burdensome in that it requests “any and all documents which in any way relate to or reference your representation of each and every every {sic] Trustee of any Trust in which Charles Actis was the Trustor, including but not limited to notes, letters, memorandums, telephone messages, pleadings, depositions, video tapes, audio tapes, reports, checks, bank records, documents of title, inventory, accounting records, time records, and/or billing statements”, Said subpoena and affidavit fail to show great cause for production of said items, and fails to specify the exact matters and things desired to be produced, setting forth in detail the materiality thereof to the issues involved in the case. Said subpoena was signed by Dean M. Spellman, attorney for Petitioner herein, to David Friedenberg, attorney for Respondent in this litigation. Said subpoena requests the documents be sent to Petitioner's attorney, Dean M. Spellman, not ta an independent “deposition officer” for copying. Mr. Speliman is not a proper “deposition officer” as defined by CCP §2020. The subpoena seeking “Any and all documents which in any way relate or reference to my representation of each and every trustee of any Trust in which Charles Actis was Trustor’, seeks documents which are covered by attorney client privilege for other trustees, and attorney work product. SEPARATE STATEMENT IN SUPPORT OF MOTION FOR ORDER DIRECTING COMPLIANCE WITH SUSPOENA ‘DUCES TECUM AND FOR EXPENSES OF THE MOTIONC C Furthermore, the aforementioned documents sought by said subpoena are not reasonably calculated to lead to any admissible evidence in this matter. 6. Argument a. CCP §§1985, 1985.3, and 1987 See section 3a above. b. Overbroad and Burdensome See section 3b above. ¢. Affidavit Re Good Cause and Matters To Be Produced See section 3c above. d. Attomey for Petitioner as “Deposition Officer” See section 3d above. e, Attomey-Client Privilege As is seen from the accompanying points and authorities, no attorney client Privilege exists as to the documents sought under either of the subject two (2) subpoenas. The documents sought herein relate to the “intention or competence” of the decedent. The attorney client privilege has been negated by the legistature and as such attorney Friedenberg’s objection is without merit. f._Attomey Work Product Privilege See section 3e above. g._ Not Reasonably Calculated To Lead To Admissible Evidence As stated above, this petitioner is entitled to examine all of the circumstances and all of the events surrounding all transactions involving the respondent near the time when itis alleged he was mentally incompetent and/or subject to undue influence. It must not be forgotten that the petitioner has the burden of proof of showing undue influence and/or mental incompetence and this state’s discovery laws provide SEPARATE STATEMENT iN SUPPORT OF MOTION FOR ORDER DIRECTING COMPLIANCE WITH SUBPOENA DUCES TECUM AND FOR EXPENSES OF THE MOTIONsubstantial liberality in permitting discovery. Dated: September 27, 2005. OBERT B. MITCHELL, Attorney for Petitioner ‘SEPARATE STATEMENT iN SUPPORT OF MOTION FOR ORDER DIRECTING COMPLIANCE WITH SUBPOENA DUCES TECUM AND FOR EXPENSES OF THE MOTION