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Case Number: PTR-05-287341
Filing Date: Oct-11-2005 5:16
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MEMORANDUM OF POINTS AND AUTHORITIES
IN THE MATTER OF IN RE REVOCABLE LIVING TRUST AGREEMENT OF CHARLES ACT
001P01300860
Instructions:
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SPELLMAN & MITCHELL
Attorneys at Law
Dean M. Spellman, #060042
Robert B. Mitchell, #074795
1850 Mt. Diablo Bivd., Ste. 670
Watnut Creek, California 94596-4407
Telephone: (925) 938-5880
Attorney for CAROL MITCHELL
GORDON PARK-LI, Clerk
BY: oe: .
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 Beneficiary
under the REVOCABLE LIVING TRUST
AGREEMENT OF CHARLES ACTIS
DATED 11/2/04, NICHOLAS FERRERO,
a minor and a will and trust beneficiary
and NATALIE FERRERO, a minor anda
will and trust beneficiary,
Respondents.
|. INTRODUCTION
Case Number PTR-05-287341
(Related Case No. PES 05-287457)
DISCOVERY
MEMORANDUM OF POINTS AND
AUTHORITIES IN OPPOSITION TO
MOTION FOR ORDER COMPELLING
FURTHER ANSWERS TO
INTERROGATORIES, THAT FACTS BE
DEEMED ADMITTED, FOR
ATTORNEYS FEES, COSTS AND
SANCTIONS
Date: October 18, 2005
Time: 10:30 a.m.
Dept. No: 612
Filing Date: May 4, 2005
Judge: John Dearman
Trial Date: Not Assigned
Moving Party's current motion is actually three (3) motions:
1. As to Moving Party’s Request For Admissions, a motion requesting the
court order that facts 1, 2, 3 and 4, contained therein be deemed
admitted,
MEMCRANDUM OF POINTS AND AUTHORITIES IN
OPPOSITION TO MOTION FOR ORDER COMPELLING
FURTHER ANSWERS TO INTERROGATORIES, etc.pa Wn
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2. As to certain specified Form Interrogatories propounded by Moving Party,
for an order compelling further answers thereto, and
3. As to certain specified Special Interrogatories propounded by Moving
Party, for an order compelling further answers thereto.
In addition, Respondent requests an award of attorney's fees and costs in
connection with each of these three (3) motions.
As has been stated earlier, Moving Party has used, and continues to use the
discovery process to harass this Petitioner. Moving Party is using “checkbook” litigation
tactics in an attempt to defeat Petitioner's claim and these motions are simply a
continuation of that effort. Petitioner requests that this court award her attorney’s fees
following the court's denial of each of these motions.
Lastly, a request was made of Moving Party's Counsel to provide in electronic
form Moving Party’s 335 Statement so that a single 335 Statement with both parties
contentions could be presented to this court. In a clear indication of his tack of
cooperation in this matter, even when it is just for the benefit of this court, Moving
Party’s Counsel refused to provide same.
IL_ ARGUMENT
A. Request For Admissions
Moving Party failed to attach to her motion either the subject Request for
Admissions or Petitioner's response thereto. Had Moving Party done so, it would be
obvious that the relief sought by Moving Party is not available to her and that Moving
Party failed to timely file this motion.
1. The Relief Sought Is Not Available To Moving Party
CCP 2033.280 provides that if a party to whom requests for admissions are
directed fails to serve a timely response, the requesting party may move for an order
that the truth of any matters specified in the request be deemed admitted. In other
words, the remedy of facts being deemed admitted is available when the Petitioner
MEMORANDUM OF POINTS AND AUTHORITIES IN
OPPOSITION TO MOTION FOR ORDER COMPELLING
FURTHER ANSWERS TO INTERROGATORIES, etc,“,.fails to serve a timely response...”.! Petitioner served a time response and as a
result, Moving Party seeks a sanction that is not available to her.
Attached hereto and marked as Exhibit “A” is Moving Party's Proof of Service as
to the Request for Admissions which is the subject of this motion. As can be seen
therefrom, the subject requests were served by mail on June 6, 2005. Under CCP §§
2033.250 and 2016.050, responses to Request for Admissions are due within thirty (30)
days from the date the requests were served and such thirty (30) day period is
extended by five (5) days if service is by mail. Consequently, Petitioner was required to
serve her responses no later than July 11".
Attached hereto and marked as Exhibit “B” is a copy of the Proof of Service of
this Petitioner's Response to the subject Request for Admissions and which shows that
same were served by mail on June 29, 2005, only twenty-three (23) days after service
of the subject Request for Admissions and well within the thirty-five (35) days service
requirement as set forth above.
Consequently, since the response to the subject Request for Admissions to
which Moving Party now takes exception was served in a timely fashion, the remedy
sought by Moving Party is not available. As a result, Moving Party’s motion must be
denied and Petitioner awarded attorney's fees..
2._Even !f Moving Party Was Seeking The Remedy of Further
Responses, This Motion Is Untimely
Even if Moving Party's motion was construed not as a motion to deem facts
admitted, but rather to compel further responses to the subject Request for Admissions,
Moving Party's motion was not filed with the required forty-five (45) day period.
CCP §2033.290 mandates that should a requesting party under a request for
admissions deem that the subject responses thereto were evasive, incomplete or
The only other time the "deemed admitted" remedy is available is where a responding party fails to provide
further responses after having being ordered to do so by the court.
MEMORANDUM OF POINTS AND AUTHORITIES IN.
OPPOSITION TO MOTION FOR ORDER COMPELLING
FURTHER ANSWERS TO INTERROGATORIES, etc.yp Ot Dn HO ® WN &
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contained objections without merit, such requesting party may move the court for an
order compelling further responses. However, such motion must be made *...within
forty-five days of the service of the response...”.
Referring to Exhibit “B” hereto, Moving Party had up to and including August 12,
2005, in which to serve her motion. Referring the court to the proof of service for this
motion, it is seen that same was served by mail on September 16", no less than thirty-
five (35) days beyond the forty-five (45) day window period.
3._ Conclusion
Consequently, Moving Party's motion seeking that certain facts be deemed
admitted must be denied and Petitioner hereto is entitled to her attorney's fees in
connection with her opposition to this “facts deemed admitted” motion.
B. Form Interrogatories
Yet again Moving Party fails to attach copies of the Form Interrogatories upon
which this motion is based as well as Petitioner's responses thereto. Again, had such
pertinent pleadings been attached to this motion, it would have been obvious that
Moving Party's motion is without merit.
1._Moving Party's Motion Is Untimely
CCP §2030.300(c) provides that a party must notice a motion to compel further
answers to interrogatories within forty-five days after the subject responses were
served. Delaying the motion beyond the forty-five day limit waives the right to compel
any further responses to the interrogatories (CCP §2030.300(c)) and the court lacks
jurisdiction to order further answers after the forty-five day period. Vidal Sassoon, Inc.
v. Superior Court (1983) 147 Cal. App.3d 681,685.
Attached hereto and marked as Exhibit "C” is a copy of Petitioner's Proof of
Service as to the responses to the Form Interrogatories which are the subject of this
motion. As can be seen therefrom, the subject responses were served by mait on June
29, 2005, and as a result thereof, Moving Party had up to and including August 12,
2005, in which to move this court for further answers to the subject form.
MEMORANDUM OF POINTS AND AUTHORITIES IN
OPPOSITION TO MOTION FOR ORDER COMPELLING
FURTHER ANSWERS TO INTERROGATORIES, atc.mh Wn
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interrogatories. Again referring the court ta the proof of service of this motion, it is seen
that this motion was served on September 16" and was again no less than thirty-five
(35) days too late. Petitioner requests that this Form Interrogatory motion be denied
and that attorney's fees be awarded in connection therewith.
Cc. Special interrogatories
1,_ Introduction
Moving Party’s objects to two (2) of Petitioner's responses to Special
Interrogatories. There are no less than three (3) reasons why Moving Party’s objection
is without merit. The first is that the answers provided by Petitioner are proper under the
code; the second is that Moving Party's counsel faited to meet and confer regarding the
subject responses; and third, the subject interrogatories are an attempt to “restart the
clock” from previous interrogatories propounded by Moving Party which she did not
seek to compel further answers.
2. Petitioner's Substantive Answers Are Eull and Complete.
Moving Party asserts the identical “argument” for each of the two (2)
interrogatory responses to which she takes exception. Moving Party complains that
Petitioner's responses (i) *...referred to a sixteen (16) page report of Abraham Nievod
(Rule 335 Statement, 7:11 & 7:27), (ii) *...much of which was illegible or missing (Rule
335 Statement, 7:1-121 & 7:27-8:1), and (iii) that Petitioner “refused to state whether ...
she had any other facts” (Rule 335 Statement, 7:12 & 8:1). These are the only grounds
under which Moving Party takes exception and these three (3) minor points, each
weaker than the previous, illustrates well the fact that there is no substantive objection
to these two (2) responses. Ofinterest is the fact that Moving Party submits no
authority, either in her 335 statement or in her Memorandum of Points and Authorities,
which supports any of her stated objections.’
In the event that Moving Party sets forth in her reply to this opposition autherity and argument not set forth
in her moving papers, Petitioner requests thal this court strike Moving Party's Reply since Moving Party is obligated
to fully state her position in her initial pleadings and to do otherwise, is pure gamesmanship on the part of Moving
Party's counsel.
MEMORANDUM OF POINTS AND AUTHORITIES IN
OPPOSITION TO MOTION FOR ORDER COMPELLING
FURTHER ANSWERS TO INTERROGATORIES, etc.BH
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As to item (i), under CCP § 2030.230 (previously CCP § 2030(f)(2)), as an
alternative method to responding to an interrogatory, the responding party is permitted
to specify the documents from which the answer may be derived or ascertained. As
Moving Party was informed a number of times before this interrogatory, the “facts” upon
which Petitioner based her contention that the decedent suffered undue influence
and/or mental incompetence was the medical report of Dr. Abraham Nievod.’ Petitioner
provided Moving Party with the best information available at the time: the report of Dr.
Nievod. As stated above, the code specifically permits Petitioner the right to provide
documents containing the information requested. By supplying the report of Dr. Nievod,
Moving Party received an answer beyond that which she asked - Moving Party received
the report in which Dr. Nievod stated the facts and the conclusions he reached as a
result of those facts. The tow (2) answers of this Petitioner went beyond the question
asked and Moving Party has no basis, and offers no authority, to complain about the
responses received.
As to Item (ii), Petitioner's copy of Dr. Nievod’s report is as it is. Attorney David
Friedenberg was advised numerous times that the quality of the photocopying received
by his office was exactly the quality of the report in Petitioner's possession. Petitioner
cannot make a better copy than the copy in her possession.’
As to Item (iii), this well illustrates the foolishness of this motion. Moving Party
asked a question (“each and every fact”) and Petitioner has provided her response.
Moving Party now states that she is unhappy with that response but offers no
In fact, interpreting the subject two (2) interrogatories literally, Petitioner's answers should have been “The
fact that Dr. Nievod said so". However, in order to go the “extra step”, Petitioner provided a copy of the subject report
to Moving Party so that Moving Party could fearn “the facts" upon which Or. Nievod based his conclusions.
It must not be forgotten that this Petitioner moved this court for an order to release in full Dr. Nievod's report,
a motion that was specifically opposed by Moving Party. The motion was eventually denied by this court. Moving
Party now complains that she has not received the full report of Dr. Nievod (due to its illegibitity) yet Moving Party
opposed the retease of that very report. How can it not be said that this motion is not being made in bad faith? Moving
Party's counsel complains about exactly what he urged in his opposition to the release of Dr. Nievod's file - no further
clarity of Dr. Nievod's examination before trial. Moving Party's courisel got what he wanted and now he complains
about it and wants this Petitioner to pay him money for his complaining!
MEMORANDUM OF POINTS AND AUTHORITIES IN
OPPOSITION TO MOTION FOR ORDER COMPELLING
FURTHER ANSWERS TO INTERROGATORIES, etc.win
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justification. Moving Party’s unhappiness is not a ground for filing this motion.
3. Moving Party Failed To Meet And Confer.
A motion to compel interrogatories must be accompanied by a declaration
stating facts showing a ‘reasonable and good faith attempt’ to resolve informally the
issues presented by the motion before filing the motion. See CCP § 2030.300(b).
Failing to make a ‘reasonable and good faith attempt’ to resolve the issues informally
before a motion to compel is filed constitutes a ‘misuse of the discovery process.’ See
CCP § 2023.020. Also, the court may automatically deny discovery since to do
otherwise would be ‘in excess of the trial court's jurisdiction.’ See Townsend v. Sup. Ct.
(EMC Mortg, Co.) (1998) 61 CA4th 1431, 1439.
Following is a lengthy explanation as to how Moving Party’s counsel did not
meet and confer as to these special interrogatories. However before beginning this
exercise, let it be said that the short explanation is that nearly identical interrogatories
were propounded under two (2) different case numbers at different times and the
“evidence” offered by Moving Party in support of meet and confer only related to the
first in time interrogatories and not the interrogatories which are the subject of this
motion. Such fact becomes obvious when it is recognized that Moving Party’s counsel
complains about the responses which are the subject of this motion at points in time
when he had not even received the subject responses. As has been
complained about by this Petitioner for some time, little attention has been given to the
writings of Moving Party’s counsel, either in the drafting of discovery requests or in
written correspondence. Frequently, Moving Party's counsel referred to interrogatories
in one case when he was apparently referring to interrogatories in another case. And by
using the same discovery number in both cases, Moving Party's counsel only
compounded his confusion.
a. The Long Explanation
Here, Moving Party's counsel complained about Petitioner's responses to the
subject interrogatories well before he even received those responses. It became
MEMORANDUM OF POINTS AND AUTHORITIES IN
OPPOSITION TO MOTION FOR ORDER COMPELLING
FURTHER ANSWERS TO INTERROGATORIES, etc.BW NM
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apparent at an early stage that Moving Party's counsel refused to acknowledge the fact
that he was complaining about responses that he had not even yet received. In order to
understand this, a few facts must be noted:
1. There are two (2) interrelated actions pending between the parties.
2. The first action, numbered “41" (last 2 digits of the case number), is an
action entitled “Mitchell v. Knott” in which this Petitioner seeks to void a
Will and Trust executed by the decedent in November 2004.
3. The second action, numbered “57", is a Will contest in which Carol
Mitchell contests the same November 2004 Will offered to Probate by
Moving Party.
4. The basis for both the “41" and “57" cases is that it is contended that at
the time of execution of te Will and trust, decedent was subject to undue
influence and/or mental incapacity.
5. Moving Party propounded four (4) Special Interrogatories in each action
which asked nearly identical questions. The questions which are the
subject of this motion were questions that were in fact first posed in the
“57° action.
6. The “57" questions were first in time and were served on June 24, 2005.
(See Exhibit “D", redacted)
7. Contestant Mitchell's (this Petitioner) response to those “57" questions
was served on June 29, 2005 (See Exhibit “E”).
8. Petitioner’s response to the questions which are the subject of this motion
was served on August 3, 2005 (See Exhibit “F”).
With these facts in mind, it becomes obvious that Moving Party's counsel met
and conferred regarding Contestant's responses to the “57" Special Interrogatories
rather than the “41" Special Interrogatories which are the subject of this motion.
Referring the court to the meet and confer (hereafter M&C) letter dated July
12, 2005, (Exhibit “G” hereto and Exhibit “1" of the moving papers), paragraph 2 clearly
MEMORANDUM OF POINTS AND AUTHORITIES IN
OPPOSITION TO MOTION FOR ORDER COMPELLING
FURTHER ANSWERS TO INTERROGATORIES, etc.C C
shows that Moving Party's counsel is addressing “Special Interrogatories numbers 1
and 3 in the “Mitchell v. Knott” ("41") case. Yet as can be seen from Exhibit “F", Mr.
Friedenberg had not even received those responses until either August 5" or 6",
Petitioner's responsive M&C letter of July 22 (Exhibit “H" hereto) points out to
Moving Party's counsel is asking to meet and confer on responses that he has not
received.
However, Moving Party's counsel ignores this point and continues to insist that
the responses which he has not received are not acceptable. Attached hereto is M&C
letter dated August 1* (Exhibit I” hereto and Exhibit “2" in the moving papers) in which
Moving Party's attorney again references Special Interrogatories, Set One in the
“Mitchell v. Knott” (“41" case) (second Paragraph). Again, Moving Party's counsel had
yet ta receive those response, yet he is complaining about the contents thereof.
Petitioner's responsive M&C letter of August 2 (Exhibit “J” hereto) again
admonishes Moving Party's counsel that he is confusing his Interrogatories in the “57”
case with the “41" case.,
Lastly, Moving Party's M&C letter dated August (Exhibit “K” hereto and Exhibit
“3" in the moving papers) shows that Moving Party’s counsel continues to complain
regarding “Special Interrogatories Nos. 1 & 3” of the “Objection to Probate of Will”. The
“Objection” case is the “57" case and not this “41" case.
Moving Party's counsel to this day remains confused as to this issue. In
paragraph 6 of his Supporting Declaration (2:19-24), Moving Party's attorney, in
support of his contention that Meet and Confer took place regarding these Special
Interrogatories, references specifically Exhibits “2" & “3” (Exhibits “I” and “K” hereto).
As shown above, Mr. Friedenberg’s letter of August 1, 2005 (Exhibit “2" and “I” hereto)
complains about responses that were not received by him until at least four (4) or five
(5) days tater. Mr. Friedenberg’s letter of August 5, 2005, (Exhibits “3" and “K” hereto)
clearly shows that he is complaining about Special Interrogatories “1 & 3" in connection
with the “57" case and not this “41” case..
MEMORANDUM OF POINTS ANO AUTHORITIES IN
OPPOSITION TO MOTION FOR ORDER COMPELLING
FURTHER ANSWERS TO INTERROGATORIES, etc.Ww nN
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The bottom line here in that at no point in time did Moving Party’s counsel
attempt to Meet and Confer regarding response to Special Interrogatories “1 & 3” in the
“41" case - at all times, counsel only addressed Special Interrogatories “1 & 3" in the
“57" case,
4, The Subject Interrogatories Are An Attempt To “Reset The Clock”,
The two (2) special interrogatories of which Moving Party now complains are
practically identicat to two (2) special interrogatories previously propounded by Moving
Party in the companion“57" case referenced above. Exhibit “D" hereto is a copy of
Moving Party's Special Interrogatories to this Petitioner in the “57” Will contest action.
Special Interrogatory Number 1 asks for each and every fact upon which Petitioner
contends that the Will of decedent was executed as a result of undue influence. The
Will referenced therein was dated November 2, 2004 and was executed as a
companion document to, and at the same time as, the Revocable Living Trust. Special
Interrogatory Number 3 in the Wilf contest asks the same question but instead of undue
influence, the questions requests facts as to lack of mental capacity. These are the
same interrogatories which are the subject of this motion with the simple exception that
they address the Will rather than the companion and concurrently executed trust
instrument.
In the “57" case, Petitioner provided her answers (see Exhibit “E” hereto). The
responses provided in the “57" case contain the same information provided in the
responses Moving Party bases this motion on but as can be seen from Exhibit “D’,
Moving Party delayed too long to file a motion compelling further responses. This
motion seeks the same information previously asked in the “57" case and is simply an
attempt to reset the forty-five (45) day clock by asking the same questions. A party who
failed to meet the 45-day deadline cannot ‘reset the clock' by asking the same
questions again in a later set of interrogatories. The failure waives the right to compel
answers to those questions. See Professional Career Colleges, Magna Institute, Inc. v.
Sup. Ct. (Stewart) (1989) 207 CA3d 490, 494,
‘MEMORANDUM OF POINTS AND AUTHORITIES IN
OPPOSITION TO MOTION FOR ORDER COMPELLING
FURTHER ANSWERS TO INTERROGATORIES, etc.
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D. Petitioner Is Entitled To Sanctions
The court may order the Moving Party to pay the Petitioner’s expenses and fees
in resisting discovery motion where the motion is denied. CCP §2023.030(d). The court
“shall impose a monetary sanction against a losing party or attorney unless it finds that
the one subject to the sanction acted with substantial justification or that other
circumstances make the imposition of the sanctions unjust.” CCP §2030.290(c).
Neither of the grounds allowing for the court to exercise such discretion is present in
this instance.
As can be seen in the herein accompanying Declaration of Robert B. Mitchell,
1.0 hours were expended in the “Admissions” motion, .7 hours for the Form
Interrogatories, no less that 3.7 hours on the Special Interrogatories motion and an
expected 2.7 hours reviews Moving Party's reply and attending this hearing, all of which
result in the following attorney's fees:
1. Opposition for Facts Deemed Admitted $ 300.00
2. Opposition for Form Interrogatories 210.00
3. Opposition for Special Interrogatories 1,110.00
4 Appearance at hearing 780.00
TOTAL $2,400.00
In addition thereto, Moving Party had earlier improperly noticed this motion which
required this Petitioner to file an opposition (see filing of September 16). !n that
opposition, this Petitioner requested attorney's fees of $450.00. That request is
repeated here.
Petitioner respectfully requests that this court order attorney David Friedenberg
and Moving Party to pay Petitioner forthwith as and for sanctions, the sum of $2,850.00.
ROBERT B. MITCHELL, Attorney for
Petitioner
MEMORANDUM OF POINTS AND AUTHORITIES IN
OPPOSITION TO MOTION FOR ORDER COMPELLING
FURTHER ANSWERS TO INTERROGATORIES, etc.
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PROOF OF SERVICE BY MAIL - C.C.P. 1013a, 2015.5
I declare that | am employed in the County of Contra Costa, California. |am over
the age of eighteen years and not a party to the within cause. My business address is
1850 Mt. Diablo Bivd., Ste. 670, Walnut Creek, CA 94596-4407.
On October 3, 2005, | served the within MEMORANDUM OF POINTS AND
AUTHORITIES IN OPPOSITION TO MOTION FOR ORDER COMPELLING
FURTHER ANSWERS TO INTERROGATORIES, THAT FACTS BE DEEMED
ADMITTED, FOR ATTORNEYS FEES, COSTS AND SANCTIONS and DECLARATION
OF ROBERT B. MITCHELL IN OPPOSITION TO MOTION FOR ORDER
COMPELLING FURTHER ANSWERS TO INTERROGATORIES, THAT FACTS BE
DEEMED ADMITTED, FOR ATTORNEYS FEES, COSTS AND
SANCTIONS on the hereinafter named person(s) by placing a true copy thereof
enclosed in a sealed envelope with postage thereon fully prepaid, in the United States
mail at Walnut Creek, California, addressed as follows:
DAVID J. FRIEDENBERG
Attorney at Law
2171 Junipero Serra Boulevard, #620
Daly City, CA 94014
ERNEST F. DER
Attorney at Law
101 Howard Street, Suite 490
San Francisco, CA 94105
CAROLINE K. HINSHAW
425 California Street, Ste. 900
San Francisco, CA 94104
| declare under penalty of perjury under the laws of the State of California that
the foregoing is true and correct and that this Declaration was executed on October
43, 2005, at Walnut Creek, California.
Cynthid D. Greco
MEMORANDUM OF POINTS AND AUTHORITIES IN
OPPOSITION TO MOTION FOR ORDER COMPELLING
FURTHER ANSWERS TO INTERROGATORIES, etc.
12Legal Tabs Co. 1-800-322-2022 Recycled GB Stocks ASB
EXHIBIT A fPROOF OF SERVICE BY MAIL
The undersigned does hereby declare as follows:
1. Tam a citizen of the United States, over the age of 18 years and not a party to the
within entitled action.
2. Iam employed at and my business address is 2171 Junipero Serra Blvd., Ste. 620,
Daly City, California 94014.
3. On the date below, [placed FORM INTERROGATORIES-SET ONE; REQUEST
FOR ADMISSIONS-SET ONE; REQUEST FOR PRODUCTION OF DOCUMENTS-SET
ONE ina sealed envelope with postage fully prepaid in the United States mail at Daly City,
California addressed as follows:
DEAN M. SPELLMAN, ESQ.
1850 Mt. Diablo Blvd., Ste. 670
Walnut Creek, CA 94596-4407
I declare under penalty of perjury under the laws of the State of California that the
foregoing is true and correct. Executed on Jun
tue,
PAMELA I. MARSH
2005 at Daly City, California.
EXHIBIT “A”Legal Tabs Co. 1-600-322-3022
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PROOF OF SERVICE BY MAIL -C.C.P. 1013a, 2015.5
| declare that | am employed in the County of Contra Costa, California. | am over
the age of eighteen years and not a party to the within cause. My business address Is
1850 Mt. Diablo Blvd., Ste. 670, Walnut Creek, CA 94596-4407.
On June 29, 2005, | served the within RESPONSE TO RESPONDENT'S
REQUEST FOR ADMISSIONS, SET NO. ONE on the hereinafter named person(s) by
placing a true copy thereof enclosed in a sealed envelope with postage thereon fully
prepaid, in the United States mail at Walnut Creek, California, addressed as follows:
DAVID J. FRIEDENBERG
Attorney at Law
2171 Junipero Serra Boulevard, #620
Daly City, CA 94014
| declare under penalty of perjury under the laws of the State of California that
the foregoing is true and correct and that this Declaration was executed on June 29,
2005, at Walnut Creek, California.
EXFEEIT “B”
RESPONSE TO RESPONDENT’S REQUEST FOR
ADMISSIONS, SET NO. ONELegal Tabs Co. 1-800-322-9022 Recycied EB) Stock #EXASB
EXHIBIT C fwn we
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PROOF OF SERVICE BY MAIL - C.C.P. 1013a, 2015.5
\ declare that | am employed in the County of Contra Costa, California. !am over
the age of eighteen years and not a party to the within cause. My business address is
1850 Mt. Diablo Bivd., Ste. 670, Walnut Creek, CA 94596-4407.
On June 29, 2005, ! served the within RESPONSE TO RESPONDENT'S FORM
INTERROGATORIES, SET NO. ONE on the hereinafter named person(s) by placing a
true copy thereof enclosed in a sealed envelope with postage thereon fully prepaid, in
the United States mail at Walnut Creek, California, addressed as follows:
DAVID J, FRIEDENBERG
oT Wonipero Serra Boulevard, #620
Daly City, CA 94014
| declare under penalty of perjury under the laws of the State of California that
the foregoing is true and correct and that this Declaration was executed on June 29,
2005, at Walnut Creek, California.
CYNYHIA D. GRECO
RESPONSE TO RESPONDENT'S FORM
INTERROGATORIES, SET NO. ONE
a AHHEIT “i”Legal Tabs Co. 1-800-322-2022 , Recyted (a) Stock #EXASB
EXHIBIT D jC C
DAVID J. FRIEDENBERG, ESQ.
SBN 25026
2171 Junipero Serra Blvd., Ste. 620
Daly City, CA 94014
Telephone: (650) 755-6622
Facsimile: (650) 755-4312
Attomey for Respondent
EVA KNOTT
SUPERIOR COURT OF THE STATE OF CALIFORNIA
CITY AND COUNTY OF SAN FRANCISCO
ESTATE OF ) Case No, PES 05-287457
)
CHARLES ACTIS y
- ) RESPONDENT EVA KNOTT’S SPECIAL
Decedent ) INTERROGATORIES-SET ONE TO
) CONTESTANT CAROL MITCHELL
)
CAROL MITCHELL, )
)
Contestant, )
)
v. )
)
EVA KNOTT, }
Respondent )
)
PROPOUNDING PARTY: Respondent EVA KNOTT
RESPONDING PARTY: Petitioner CAROL MITCHELE
SET NUMBER: ONE
You are hereby requested under the Code of Civil Procedure §2030 to provide
Respondent, EVA KNOTT, the following information:
SPECIAL INTERROGATORY NO. 1:
State in detail each and every fact upon which you base your contention as set forth in paragraph
V of your Objection of Probate of Will, that the execution of the Will by Decedent herein was the
1
SPECIAL INTERROGATORIES-SET ONE
EXHIBIT “Dp”O
C Cc
result of undue influence.
SPECIAL INTERROGATORY NO. 2:
State the names and addresses of each person known to you whom you contend can offer relevant
testimony regarding your reply to Special Interrogatory No. I above.
SPECIAL INTERROGATORY NO. 3:
State in detail each and every fact upon which you base your contention as set forth in paragraph
V of your Objection of Probate of Will, that Decedent lacked the sufficient mental capacity to
understand and comprehend the consequences of his acts.
SPECIAL INTERROGATORY NO. 4:
State the names and addresses of each person known to you whom you contend can offer relevant
testimony regarding your reply to Special Interrogatory No. 3 above.
Dated: June Ze, 2005
DAVID J. FRIEDENBERG, ESQ.
Attomey for Respondent EV.
2
SPECIAL INTERROGATORIES-SET ONECc C
PROOF OF SERVICE BY MAIL
The undersigned does hereby declare as follows:
1. Tam a citizen of the United States, over the age of 18 years and not a party to the
within entitled action.
2, Iam employed at and my business address is 2171 Junipero Serra Blvd., Ste. 620,
Daly City, California 94014.
3. On the date beiow, I placed RESPON DENT EVA KNOTT’S SPECIAL
INTERROGATORIS-SET ONE and RESPONDENT EVA KNOTT’S REQUEST FOR
PRODUCTION OF DOCUMENTS-SET ONE ina sealed envelope with postage fully prepaid
in the United States mail at Daly City, California addressed as follows: ,
DEAN M. SPELLMAN, ESQ.
1850 Mt. Diablo Bivd., Ste. 670
Walnut Creek, CA 94596-4407
I declare under penalty of perjury under the laws of the State of California that the
foregoing is true and correct. Executed on June 005 at Daly City, California.
PAMELA I. MARSHLegal Tabs Co, 1-800-222-3022 Recyted PB) Siok ASB
EXHIBIT E fC C
DEAN M. SPELLMAN, #060042
1850 Mt. Diablo Blvd., Ste. 670
Walnut Creek, Catifornia 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
ESTATE OF: Case Number: PES 05-287457
CHARLES ACTIS RESPONSE TO RESPONDENT EVA
KNOTT'S SPECIAL
Decedent INTERROGATORIES, SET NO. ONE TO
CONTESTANT CAROL MITCHELL
CAROL MITCHELL
Contestant
vs.
EVA KNOTT,
Respondent.
PROPOUNDING PARTY: Respondent, EVA KNOTT
RESPONDING PARTY: Contestant CAROL MITCHELL
SET NO: ONE
GENERAL OBJECTIONS
1. Answering party objects to these interrogatories as burdensome,
oppressive and harassing.
2. Answering party objects to each interrogatory to the extent that it would
RESPONSE TO RESPONDENT EVA KNOTT’S
SPECIAL INTERROGATORIES, SET NO. ONE TO
CONTESTANT CAROL MITCHELL
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require disclosure of materials or information protected by the attorney-client privilege,
work-product doctrine, or other legally recognized privilege against disclosure.
3. Answering party further objects to each interrogatory to the extent that it
would require responses by answering party which are different from or in addition to
the responses required by the California Code of Civil Procedure and applicable case
authority.
4. Answering party objects to each interrogatory on the grounds that it seeks
information exclusively within the possession of Asking party which has not yet been
produced, Discovery is still continuing and further evidence and information will
undoubtedly be obtained through such discovery. Without acknowledging any
obligation to do so except as required by law, plaintiff reserves the right to alter or
amend these responses when and if new or additional information becomes available.
5. These general responses are incorporated by this reference into each of
the responses set forth below.
RESPONSE TO SPECIAL INTERROGATORY NO.1:
Pursuant to California Code of Civil Procedure §2030(f}(2), attached hereto
please find Bates stamped documents 200001 through 200019. Discovery is
continuing.
RESPONSE TO SPECIAL INTERROGATORY NO.2:
Abraham Nievod, 1065 Mariposa Ave., Berkeley, CA 94707. Discovery is
continuing.
RESPONSE TO SPECIAL INTERROGATORY NO.3:
Pursuant to California Code of Civil Procedure §2030(f)(2), attached hereto
please find Bates stamped documents 200001 through 200019. Discovery is
continuing.
RESPONSE TO SPECIAL INTERROGATORY NO.4:
Abraham Nievod, 1065 Mariposa Ave., Berkeley, CA 94707. Discovery is
RESPONSE TO RESPONDENT EVA KNOTT’S
SPECIAL INTERROGATORIES, SET NO. ONE TO
CONTESTANT CAROL MITCHELLyw ard nu ® wne
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
continuing.
AS TO OBJECTIONS ONLY.
Dated: June 28, 2005
NM. SRELLMAN, Attorney for
Contestant/Responding Party
RESPONSE TO RESPONDENT EVA KNOTT’S
SPECIAL INTERROGATORIES, SET NO. ONE TO
CONTESTANT CAROL MITCHELLVERIFICATION
STATE OF CALIFORNIA
COUNTY OF CONTRA COSTA
lam the Petitioner in the above-entitled action; | have read the foregoing
RESPONSE TO RESPONDENT EVA KNOTT’S SPECIAL INTERROGATORIES, SET
NO. ONE TO CONTESTANT CAROL MITCHELL and know the contents thereof; and t
certify that the same is true of my own knowledge, except as to those matters which are
therein stated upon my information and belief, and as to those matters | believe it to be
true.
| declare under penalty of perjury that the foregoing is true and correct and that
this verification was executed at Walnut Creek, California this 27" day of June, 2005.
CAROL MITCHE!
RESPONSE TO RESPONDENT EVA KNOTI’S
SPECIAL INTERROGATORIES, SET NO. ONE TO
CONTESTANT CAROL MITCHELLCc C
PROOF OF SERVICE BY MAIL - C.C.P. 1013a, 2015.5
| declare that | am employed in the County of Contra Costa, California. | am over
the age of eighteen years and not a party to the within cause. My business address is
1850 Mt. Diablo Blvd., Ste. 670, Walnut Creek, CA 94596-4407.
On June 29, 2005, I served the within RESPONSE TO RESPONDENT EVA
KNOTT’S SPECIAL INTERROGATORIES, SET NO. ONE TO CONTESTANT CAROL
MITCHELL on the hereinafter named person(s) by placing a true copy thereof enclosed
in a sealed envelope with postage thereon fully prepaid, in the United States mail at
Walnut Creek, California, addressed as follows:
DAVID J. FRIEDENBERG
Attorney at Law
2171 Junipero Serra Boulevard, #620
Daly City, CA 94014
| declare under penalty of perjury under the laws of the State of California that
the foregoing is true and correct and that this Declaration was executed on June 29,
2005, at Walnut Creek, Califomia.
Gees D. GRECO 6
RESPONSE TO RESPONDENT EVA KNOTT’S
SPECIAL INTERROGATORIES, SET NO. ONE TO
CONTESTANT CAROL MITCHELL‘Legal Tabs Co. 1-800-322-3022
Racyted EY Stock HEXASS
EXHIBIT F f-1 PROOF OF SERVICE BY MAIL - C.C.P. 1013a, 2015.5
2 | declare that | am employed in the County of Contra Costa, California. | am over
3 || the age of eighteen years and not a party to the within cause. My business address is
4 || 1850 Mt. Diablo Bivd., Ste. 670, Walnut Creek, CA 94596-4407.
5 On August 3, 2005, I served the within RESPONSE TO RESPONDENT'S
6 || SPECIAL INTERROGATORIES -SET NO. ONE TO CAROL MITCHELL on the
7 || hereinafter named person(s) by placing a true copy thereof enclosed in a sealed
8 |, envelope with postage thereon fully prepaid, in the United States mail at Walnut Creek,
9] Califomia, addressed as follows:
10 DAVID J. FRIEDENBERG
Attorney at Law
11 2171 Junipero Serra Boulevard, #620
Daly City, CA 94014
12
13 | declare under penalty of perjury under the laws of the State of California that
i4 || the foregoing is true and correct and that this Declaration was executed on August 3,
15] 2005, at Walnut Creek, Califomia.
cy 1A D, GRECO
RESPONSE TO RESPONDENT'S SPECIAL
INTERROGATORIES -SET NO.
EXHIBIT “fLegal Tabs Co. 1-200:322.3022 Recycled 2D Stock #EXASB
EXHIBIT G fDAVID J. FRIEDENBERG
Cc 2171 JUNPERO SERRA BOULEVARD
SUITE 620
DALY CITY, CA 94014
Telephone: (650) 755-6622. ° ~~ FAX: (650) 755-4312
July 12, 2005
By facsimile and mail
(925) 938-5882
Dean M. Spellman, Esq.
1850 Mt. Diablo Blvd., Ste. 670
Walnut Creek, CA 94596-4407
Re: — Mitchell v. Knott .
Case No. PTR-05-287341
Dear Mr. Spellman:
This is in response to your facsimile/letter to me of July 7, 2005.
Special Interrogatories Nos. 1 & 3: re Mitchell v. Knott (Petition to Determine Validity of Trust
and Will). Request for Admission. Your client, Carol Mitchell, filed a verified Complaint
setting forth several allegations including allegations regarding undue influence and that Charles
Actis was of unsound mind. She stated under penalty of perjury that she knew the contents
thereof and they were true of her own knowledge. I have not asked fora legal opinion - only
tequest for admissions regarding the allegations and contentions made by your client.
If you will read Interrogatory No. 17.1 it states if your response is anything but “an
unqualified admission you should state (b) all facts upon which you base your response”. The
court or trier of fact will resolve the legal questions, however, your client is obligated to set forth
the facts upon which she made the contentions in the Complaint. I hope you are not trying to tell
me that Ms. Mitchell perjured herself when she signed the Verification under penalty of perjury.
If not, she should answer the Request for Admissions and the corresponding Interrogatory 17.1 to
the best of her knowledge and ability regarding the facts upon which she made said allegations,
again without a legal opinion.
Regarding Form Interrogatories, as stated in my letter of June 30, 2005, the word
“incident” refers for the purposes of these interrogatories, to the execution by Charles Actis of his
Living Trust and Will on November 2, 2004.
exnipit__[
EXHIBIT “G%Dean M. Spellman, Esq. C
July 12,2005 .
Page two
The reference to "Petition for Entitlement” refers to action No. 05-287341, Mitchell v.
Knott - Petition to Determine Validity of Revocable Living Trust and Will.
However, To resolve the question of the Form Interrogatories, I propose the following:
instead of responding to 12.1 and 12.2, a full and complete response to Special Interrogatories
Nos. t-4 will be acceptable. Regarding Form Interrogatory 12.3, "Have you or anyone acting on
your behalf obtained a written or recorded statement from any individual concerning ‘the
incident" relates to your allegations that the Trust and Will herein were executed as a result of
undue influence and/or the allegations that Charles Actis lacked the mental capacity to execute
said documents. Omit 12.4 - 12.7. 14.1 Omit
Regarding Special Interrogatories, Estate of Charles Actis, Case No. 05-287457: As
stated in my letter to you of June 30, 2005, your responses to Special Interrogatories Nos. 1 & 3
are incomplete and non-responsive. As you well know, CCP §2030(f)(1) states that "each
answer and response shall be as complete and straightforward as the information really available
to responding party permits ...." It certainly does not call for a compilation or a summary.
Furthermore, when a specific question is asked it is improper to mail or refer to a 16-page report
(of Dr. Nievod). To make matters worse, half of Dr. Nievod’s report you sent me is illegible. I
called your secretary on July 5, 2005 and asked her to fax me a good copy that could be read in
its entirety and she said your copy is evidently the same as mine. However, in an effort to
resolve this matter, if you will send me a good copy of Dr. Nievod’s report that can be read in its
entirety, and a supplemental verified response from Ms. Mitchell that she has no facts or
information in response to Special Interrogatories Nos. 1 & 3, other than that set forth in Dr.
Nievod’s report, that will be acceptable.
I would like to have this matter resolved, if possible, without the necessity of filing a
Motion to Compel Further Responses to the discovery and that the Request for Admissions be
Deemed Admitted, It is again requested that you provide the further responses as set forth above
within one (1) week of this letter, and also call me regarding any of the matters where you still
disagree to see if we can resolve these with a telephone conversation.
Your prompt reply is therefore requested.
Very truly yours,
David J. Friedenberg
DJF\pmLegal Tabs Co. 1-800-222-3022
a
Recycled & Stock # EXA-5-B
EXHIBIT H fDEAN M. SPELLMAN
ATTORNEY AT LAW
1850 MT. DIABLO BLVO., SUITE 670
WALNUT CREEK, CALIFORNIA 94596-4407
(925) 938-5880
Fax (925) 938-5882
E-Mail: SPMILAW@SBCGLOBAL.NET
July 22, 2005
DAVID J. FRIEDENBERG
Attorney at Law
2171 Junipero Serra Boulevard, #620
Daly City, CA 94014
VIA FAX (650) 755-4312 - HARD COPY TO FOLLOW
Re: Mitchell v. Knott; Estate of Charles Actis
Dear Mr. Friedenberg:
| am in receipt of your letter dated July 12, 2005, and | will again attempt to
explain to you the problems with your discovery as well as reminding you what was said
to you by my secretary.
Special interrogatories 1 & 3
In the second paragraph of your letter, you associate “Special interrogatories
Nos. 1 & 3" with the matter of “Mitchell v. Knott”. The problem with the discovery which is
the subject of your letter is your use of imprecise language and this is again another
example of this problem. My client has never provided you with answers to Special
Interrogatories in the Mitchell v. Knott matter.
As you know, there are two (2) matters currently pending in connection with the
death of Mr. Actis. The first is my client's petition as to the validity of certain instruments
(Mitchell v. Knott) and filed under San Francisco Superior Court Case number 05-
287341 (hereinafter referred to as the “Validity Petition"). The second is the Petition for
Probate filed under San Francisco Superior Court Case number 05-287457 (hereinafter
referred to as the “Probate Petition’). The only response to special interrogatories that
Ms. Mitchel! has served you with is in the Probate Petition matter. So when you refer to
my client's responses in the “Mitchell v. Knott” matter, | have no response since you are
talking about responses that do not exist.
However, if you are referring to Ms. Mitchell's responses to Special!
Interrogatories in the Probate Petition matter, here again there is a problem because
your complaint is that she makes the “legal opinion” objection. However, Ms. Mitchel!
does make that objection in her response to those special interrogatories. Consequently,
| do not understand what point you are trying to make in your second paragraph as to
these “Special Interrogatories Nos. 1 & 3°,
EXHIBIT “}} "DAVID J, FRIEDENBERG
July 22, 2005
Page 2
Request for Admissions
As | pointed out before, you fail to specify which admission request to which you
take exception and by failing to do so, | am called upon to quess as to which number[s]
your comments are directed. Consequently, be advised that Ms. Mitchell made no
allegation in her petition as to the issues raised in you client’s Request A1 nor did she
make the “legal” objection to Requests A5, AG or B. So | therefore “guess” that your
letter is directed to Requests A2, A3 and A4.
With that in mind, Ms. Mitchell stands by her objections and | again refer you to
my letter of July 7” on this subject as well as Ms. Mitchell's responses to those requests.
While your letter states that you seek “the facts upon which [Ms. Mitchell] made ...
allegations” and “to the best of her knowledge and ability”, that is not what the subject
Request For Admissions requests. The Request For Admissions seek an admission of
an ultimate fact in this matter. Based upon the remarks made in your letter, you
recognize the problem with your Request For Admissions. tf one seeks the facts upon
which allegations are made, most attorneys propound interrogatories asking precisely
those questions. And as you have been told a number of times, at this point in time, the
answer would be Dr. Nievod's report. You have received the information you seek ina
variety of ways yet you continue to threaten a motion to obtain information that you have
already received. Is this not abusive tactics?
Form Interrogatories - Definition of “Incident”
You fail to appreciate that Ms. Mitchell answered the subject form interrogatories
based upon your original definition of “Incident”. You now appear to want to define the
term differently and in so doing, you accuse my client of not properly answering the
interrogatories as originally posed. Given the fact that | cannot predict your revisions of
previously defined terms, my client’s responses are proper given the questions as
originally posed.
“Petition for Entitlement”
Here you disclose a “secret” meaning of a proper name under which you seek
my client's verified responses. By capitalizing this phrase, you made the phrase a proper
name but yet now you tell me that there is in fact no instrument with that name.
However, you do tell me that | am somehow to know that when you state “Petition for
Entitlement” | am to know that you mean an entirely different document entitled “Petition
to Determine Validity of Purported Will and Trust and to Impose Constructive Trust’.
Realistically, how can you expect me to allow my client to sign a response under penalty
of perjury which incorporates a document to which only you know the identity of ?
Proposal for Resolution
In order to resolve these matters along the lines proposed by you, | propose
resolution as follows:DAVID J. FRIEDENBERG
July 22, 2005
Page 3
1. Ms. Mitchell will serve two (2) responses to form interrogatory 12.3. The
first response will answer the question:
Have you or anyone acting on your behalf interviewed any
individua! concerning the existence of undue influence as to Charles
Actis' execution of that certain revocable living trust referenced in
Paragraph 2 of the Petition to Determine Validity of Purported Will
and Trust and to Impose Constructive Trust on file herein?
The second response will answer the question:
Have you or anyone acting on your behalf interviewed any
individual concerning the existence of mental incapacity of Charles
Actis in his execution of that certain revocable living trust referenced
in paragraph 2 of the Petition to Determine Validity of Purported Will
and Trust and to Impose Constructive Trust on file herein?
2. Ms. Mitchell will provided verified responses to these two questions
provided your client waives all objections to Ms. Mitchell's responses to
your client's Form Interrogatories, Set No. One and Request For
Admissions, Set No. One, both under the Validity Petition, and your client's
Special Interrogatories, Set Number One under the Probate Petition. | offer
this so that we can place these matters behind us in total.
Special Interrogatories - Probate Petition
Contrary to your assertion, Ms. Mitchell's response does call “for a compilation or
@ summary”. Your insistence to the contrary gives every indication that you are using
your discovery responses only to harass me and my client. As you have been repeatedly
informed, the allegations in the subject petition were based exclusively on the report of
Dr. Nievod. The facts upon which Dr. Nievod’s report is based is contained in his report.
What you are insisting upon is that my client go through Dr. Nievod's report and extract
each fact that the good doctor makes reference to. In other words, you are asking my
client to make a compilation or summary of Dr. Nievod's report. Again, she is not
required to do so and | once again refer you to CCP §2030(f)(2).
Report of Dr. Nievod
While it is true that you telephoned my secretary on July 5", you either have
forgotten or chose to ignore that which she stated to you regarding Dr. Nievod's report,
As my secretary informed you, the Dr. Nievod report which was forwarded to you is the
clearest
Preview
A San Francisco Superior Courts Information Technology Group Document Scanning Lead Sheet Oct-14-2005 5:18 pm Case Number: PTR-05-287341 Filing Date: Oct-11-2005 5:16 Juke Box: 001 Image: 01300860 MEMORANDUM OF POINTS AND AUTHORITIES IN THE MATTER OF IN RE REVOCABLE LIVING TRUST AGREEMENT OF CHARLES ACT 001P01300860 Instructions: Please place this sheet on top of the document to be scanned,= Wn B wp ony nu 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 SPELLMAN & MITCHELL Attorneys at Law Dean M. Spellman, #060042 Robert B. Mitchell, #074795 1850 Mt. Diablo Bivd., Ste. 670 Watnut Creek, California 94596-4407 Telephone: (925) 938-5880 Attorney for CAROL MITCHELL GORDON PARK-LI, Clerk BY: oe: . 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 Beneficiary under the REVOCABLE LIVING TRUST AGREEMENT OF CHARLES ACTIS DATED 11/2/04, NICHOLAS FERRERO, a minor and a will and trust beneficiary and NATALIE FERRERO, a minor anda will and trust beneficiary, Respondents. |. INTRODUCTION Case Number PTR-05-287341 (Related Case No. PES 05-287457) DISCOVERY MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO MOTION FOR ORDER COMPELLING FURTHER ANSWERS TO INTERROGATORIES, THAT FACTS BE DEEMED ADMITTED, FOR ATTORNEYS FEES, COSTS AND SANCTIONS Date: October 18, 2005 Time: 10:30 a.m. Dept. No: 612 Filing Date: May 4, 2005 Judge: John Dearman Trial Date: Not Assigned Moving Party's current motion is actually three (3) motions: 1. As to Moving Party’s Request For Admissions, a motion requesting the court order that facts 1, 2, 3 and 4, contained therein be deemed admitted, MEMCRANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO MOTION FOR ORDER COMPELLING FURTHER ANSWERS TO INTERROGATORIES, etc.pa Wn eo ont Hn uw 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 € Cc 2. As to certain specified Form Interrogatories propounded by Moving Party, for an order compelling further answers thereto, and 3. As to certain specified Special Interrogatories propounded by Moving Party, for an order compelling further answers thereto. In addition, Respondent requests an award of attorney's fees and costs in connection with each of these three (3) motions. As has been stated earlier, Moving Party has used, and continues to use the discovery process to harass this Petitioner. Moving Party is using “checkbook” litigation tactics in an attempt to defeat Petitioner's claim and these motions are simply a continuation of that effort. Petitioner requests that this court award her attorney’s fees following the court's denial of each of these motions. Lastly, a request was made of Moving Party's Counsel to provide in electronic form Moving Party’s 335 Statement so that a single 335 Statement with both parties contentions could be presented to this court. In a clear indication of his tack of cooperation in this matter, even when it is just for the benefit of this court, Moving Party’s Counsel refused to provide same. IL_ ARGUMENT A. Request For Admissions Moving Party failed to attach to her motion either the subject Request for Admissions or Petitioner's response thereto. Had Moving Party done so, it would be obvious that the relief sought by Moving Party is not available to her and that Moving Party failed to timely file this motion. 1. The Relief Sought Is Not Available To Moving Party CCP 2033.280 provides that if a party to whom requests for admissions are directed fails to serve a timely response, the requesting party may move for an order that the truth of any matters specified in the request be deemed admitted. In other words, the remedy of facts being deemed admitted is available when the Petitioner MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO MOTION FOR ORDER COMPELLING FURTHER ANSWERS TO INTERROGATORIES, etc,“,.fails to serve a timely response...”.! Petitioner served a time response and as a result, Moving Party seeks a sanction that is not available to her. Attached hereto and marked as Exhibit “A” is Moving Party's Proof of Service as to the Request for Admissions which is the subject of this motion. As can be seen therefrom, the subject requests were served by mail on June 6, 2005. Under CCP §§ 2033.250 and 2016.050, responses to Request for Admissions are due within thirty (30) days from the date the requests were served and such thirty (30) day period is extended by five (5) days if service is by mail. Consequently, Petitioner was required to serve her responses no later than July 11". Attached hereto and marked as Exhibit “B” is a copy of the Proof of Service of this Petitioner's Response to the subject Request for Admissions and which shows that same were served by mail on June 29, 2005, only twenty-three (23) days after service of the subject Request for Admissions and well within the thirty-five (35) days service requirement as set forth above. Consequently, since the response to the subject Request for Admissions to which Moving Party now takes exception was served in a timely fashion, the remedy sought by Moving Party is not available. As a result, Moving Party’s motion must be denied and Petitioner awarded attorney's fees.. 2._Even !f Moving Party Was Seeking The Remedy of Further Responses, This Motion Is Untimely Even if Moving Party's motion was construed not as a motion to deem facts admitted, but rather to compel further responses to the subject Request for Admissions, Moving Party's motion was not filed with the required forty-five (45) day period. CCP §2033.290 mandates that should a requesting party under a request for admissions deem that the subject responses thereto were evasive, incomplete or The only other time the "deemed admitted" remedy is available is where a responding party fails to provide further responses after having being ordered to do so by the court. MEMORANDUM OF POINTS AND AUTHORITIES IN. OPPOSITION TO MOTION FOR ORDER COMPELLING FURTHER ANSWERS TO INTERROGATORIES, etc.yp Ot Dn HO ® WN & NN NN NN NY NN YP Be BP Be Ye Be BP ee oI A oO ek wWwKH EP SD ODI DH B® WH HY DG C Cc contained objections without merit, such requesting party may move the court for an order compelling further responses. However, such motion must be made *...within forty-five days of the service of the response...”. Referring to Exhibit “B” hereto, Moving Party had up to and including August 12, 2005, in which to serve her motion. Referring the court to the proof of service for this motion, it is seen that same was served by mail on September 16", no less than thirty- five (35) days beyond the forty-five (45) day window period. 3._ Conclusion Consequently, Moving Party's motion seeking that certain facts be deemed admitted must be denied and Petitioner hereto is entitled to her attorney's fees in connection with her opposition to this “facts deemed admitted” motion. B. Form Interrogatories Yet again Moving Party fails to attach copies of the Form Interrogatories upon which this motion is based as well as Petitioner's responses thereto. Again, had such pertinent pleadings been attached to this motion, it would have been obvious that Moving Party's motion is without merit. 1._Moving Party's Motion Is Untimely CCP §2030.300(c) provides that a party must notice a motion to compel further answers to interrogatories within forty-five days after the subject responses were served. Delaying the motion beyond the forty-five day limit waives the right to compel any further responses to the interrogatories (CCP §2030.300(c)) and the court lacks jurisdiction to order further answers after the forty-five day period. Vidal Sassoon, Inc. v. Superior Court (1983) 147 Cal. App.3d 681,685. Attached hereto and marked as Exhibit "C” is a copy of Petitioner's Proof of Service as to the responses to the Form Interrogatories which are the subject of this motion. As can be seen therefrom, the subject responses were served by mait on June 29, 2005, and as a result thereof, Moving Party had up to and including August 12, 2005, in which to move this court for further answers to the subject form. MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO MOTION FOR ORDER COMPELLING FURTHER ANSWERS TO INTERROGATORIES, atc.mh Wn pw oO yn ww 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 |, 27 28 interrogatories. Again referring the court ta the proof of service of this motion, it is seen that this motion was served on September 16" and was again no less than thirty-five (35) days too late. Petitioner requests that this Form Interrogatory motion be denied and that attorney's fees be awarded in connection therewith. Cc. Special interrogatories 1,_ Introduction Moving Party’s objects to two (2) of Petitioner's responses to Special Interrogatories. There are no less than three (3) reasons why Moving Party’s objection is without merit. The first is that the answers provided by Petitioner are proper under the code; the second is that Moving Party's counsel faited to meet and confer regarding the subject responses; and third, the subject interrogatories are an attempt to “restart the clock” from previous interrogatories propounded by Moving Party which she did not seek to compel further answers. 2. Petitioner's Substantive Answers Are Eull and Complete. Moving Party asserts the identical “argument” for each of the two (2) interrogatory responses to which she takes exception. Moving Party complains that Petitioner's responses (i) *...referred to a sixteen (16) page report of Abraham Nievod (Rule 335 Statement, 7:11 & 7:27), (ii) *...much of which was illegible or missing (Rule 335 Statement, 7:1-121 & 7:27-8:1), and (iii) that Petitioner “refused to state whether ... she had any other facts” (Rule 335 Statement, 7:12 & 8:1). These are the only grounds under which Moving Party takes exception and these three (3) minor points, each weaker than the previous, illustrates well the fact that there is no substantive objection to these two (2) responses. Ofinterest is the fact that Moving Party submits no authority, either in her 335 statement or in her Memorandum of Points and Authorities, which supports any of her stated objections.’ In the event that Moving Party sets forth in her reply to this opposition autherity and argument not set forth in her moving papers, Petitioner requests thal this court strike Moving Party's Reply since Moving Party is obligated to fully state her position in her initial pleadings and to do otherwise, is pure gamesmanship on the part of Moving Party's counsel. MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO MOTION FOR ORDER COMPELLING FURTHER ANSWERS TO INTERROGATORIES, etc.BH C Cc As to item (i), under CCP § 2030.230 (previously CCP § 2030(f)(2)), as an alternative method to responding to an interrogatory, the responding party is permitted to specify the documents from which the answer may be derived or ascertained. As Moving Party was informed a number of times before this interrogatory, the “facts” upon which Petitioner based her contention that the decedent suffered undue influence and/or mental incompetence was the medical report of Dr. Abraham Nievod.’ Petitioner provided Moving Party with the best information available at the time: the report of Dr. Nievod. As stated above, the code specifically permits Petitioner the right to provide documents containing the information requested. By supplying the report of Dr. Nievod, Moving Party received an answer beyond that which she asked - Moving Party received the report in which Dr. Nievod stated the facts and the conclusions he reached as a result of those facts. The tow (2) answers of this Petitioner went beyond the question asked and Moving Party has no basis, and offers no authority, to complain about the responses received. As to Item (ii), Petitioner's copy of Dr. Nievod’s report is as it is. Attorney David Friedenberg was advised numerous times that the quality of the photocopying received by his office was exactly the quality of the report in Petitioner's possession. Petitioner cannot make a better copy than the copy in her possession.’ As to Item (iii), this well illustrates the foolishness of this motion. Moving Party asked a question (“each and every fact”) and Petitioner has provided her response. Moving Party now states that she is unhappy with that response but offers no In fact, interpreting the subject two (2) interrogatories literally, Petitioner's answers should have been “The fact that Dr. Nievod said so". However, in order to go the “extra step”, Petitioner provided a copy of the subject report to Moving Party so that Moving Party could fearn “the facts" upon which Or. Nievod based his conclusions. It must not be forgotten that this Petitioner moved this court for an order to release in full Dr. Nievod's report, a motion that was specifically opposed by Moving Party. The motion was eventually denied by this court. Moving Party now complains that she has not received the full report of Dr. Nievod (due to its illegibitity) yet Moving Party opposed the retease of that very report. How can it not be said that this motion is not being made in bad faith? Moving Party's counsel complains about exactly what he urged in his opposition to the release of Dr. Nievod's file - no further clarity of Dr. Nievod's examination before trial. Moving Party's courisel got what he wanted and now he complains about it and wants this Petitioner to pay him money for his complaining! MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO MOTION FOR ORDER COMPELLING FURTHER ANSWERS TO INTERROGATORIES, etc.win a uw justification. Moving Party’s unhappiness is not a ground for filing this motion. 3. Moving Party Failed To Meet And Confer. A motion to compel interrogatories must be accompanied by a declaration stating facts showing a ‘reasonable and good faith attempt’ to resolve informally the issues presented by the motion before filing the motion. See CCP § 2030.300(b). Failing to make a ‘reasonable and good faith attempt’ to resolve the issues informally before a motion to compel is filed constitutes a ‘misuse of the discovery process.’ See CCP § 2023.020. Also, the court may automatically deny discovery since to do otherwise would be ‘in excess of the trial court's jurisdiction.’ See Townsend v. Sup. Ct. (EMC Mortg, Co.) (1998) 61 CA4th 1431, 1439. Following is a lengthy explanation as to how Moving Party’s counsel did not meet and confer as to these special interrogatories. However before beginning this exercise, let it be said that the short explanation is that nearly identical interrogatories were propounded under two (2) different case numbers at different times and the “evidence” offered by Moving Party in support of meet and confer only related to the first in time interrogatories and not the interrogatories which are the subject of this motion. Such fact becomes obvious when it is recognized that Moving Party’s counsel complains about the responses which are the subject of this motion at points in time when he had not even received the subject responses. As has been complained about by this Petitioner for some time, little attention has been given to the writings of Moving Party’s counsel, either in the drafting of discovery requests or in written correspondence. Frequently, Moving Party's counsel referred to interrogatories in one case when he was apparently referring to interrogatories in another case. And by using the same discovery number in both cases, Moving Party's counsel only compounded his confusion. a. The Long Explanation Here, Moving Party's counsel complained about Petitioner's responses to the subject interrogatories well before he even received those responses. It became MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO MOTION FOR ORDER COMPELLING FURTHER ANSWERS TO INTERROGATORIES, etc.BW NM op oO Ia DH mM 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 apparent at an early stage that Moving Party's counsel refused to acknowledge the fact that he was complaining about responses that he had not even yet received. In order to understand this, a few facts must be noted: 1. There are two (2) interrelated actions pending between the parties. 2. The first action, numbered “41" (last 2 digits of the case number), is an action entitled “Mitchell v. Knott” in which this Petitioner seeks to void a Will and Trust executed by the decedent in November 2004. 3. The second action, numbered “57", is a Will contest in which Carol Mitchell contests the same November 2004 Will offered to Probate by Moving Party. 4. The basis for both the “41" and “57" cases is that it is contended that at the time of execution of te Will and trust, decedent was subject to undue influence and/or mental incapacity. 5. Moving Party propounded four (4) Special Interrogatories in each action which asked nearly identical questions. The questions which are the subject of this motion were questions that were in fact first posed in the “57° action. 6. The “57" questions were first in time and were served on June 24, 2005. (See Exhibit “D", redacted) 7. Contestant Mitchell's (this Petitioner) response to those “57" questions was served on June 29, 2005 (See Exhibit “E”). 8. Petitioner’s response to the questions which are the subject of this motion was served on August 3, 2005 (See Exhibit “F”). With these facts in mind, it becomes obvious that Moving Party's counsel met and conferred regarding Contestant's responses to the “57" Special Interrogatories rather than the “41" Special Interrogatories which are the subject of this motion. Referring the court to the meet and confer (hereafter M&C) letter dated July 12, 2005, (Exhibit “G” hereto and Exhibit “1" of the moving papers), paragraph 2 clearly MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO MOTION FOR ORDER COMPELLING FURTHER ANSWERS TO INTERROGATORIES, etc.C C shows that Moving Party's counsel is addressing “Special Interrogatories numbers 1 and 3 in the “Mitchell v. Knott” ("41") case. Yet as can be seen from Exhibit “F", Mr. Friedenberg had not even received those responses until either August 5" or 6", Petitioner's responsive M&C letter of July 22 (Exhibit “H" hereto) points out to Moving Party's counsel is asking to meet and confer on responses that he has not received. However, Moving Party's counsel ignores this point and continues to insist that the responses which he has not received are not acceptable. Attached hereto is M&C letter dated August 1* (Exhibit I” hereto and Exhibit “2" in the moving papers) in which Moving Party's attorney again references Special Interrogatories, Set One in the “Mitchell v. Knott” (“41" case) (second Paragraph). Again, Moving Party's counsel had yet ta receive those response, yet he is complaining about the contents thereof. Petitioner's responsive M&C letter of August 2 (Exhibit “J” hereto) again admonishes Moving Party's counsel that he is confusing his Interrogatories in the “57” case with the “41" case., Lastly, Moving Party's M&C letter dated August (Exhibit “K” hereto and Exhibit “3" in the moving papers) shows that Moving Party’s counsel continues to complain regarding “Special Interrogatories Nos. 1 & 3” of the “Objection to Probate of Will”. The “Objection” case is the “57" case and not this “41" case. Moving Party's counsel to this day remains confused as to this issue. In paragraph 6 of his Supporting Declaration (2:19-24), Moving Party's attorney, in support of his contention that Meet and Confer took place regarding these Special Interrogatories, references specifically Exhibits “2" & “3” (Exhibits “I” and “K” hereto). As shown above, Mr. Friedenberg’s letter of August 1, 2005 (Exhibit “2" and “I” hereto) complains about responses that were not received by him until at least four (4) or five (5) days tater. Mr. Friedenberg’s letter of August 5, 2005, (Exhibits “3" and “K” hereto) clearly shows that he is complaining about Special Interrogatories “1 & 3" in connection with the “57" case and not this “41” case.. MEMORANDUM OF POINTS ANO AUTHORITIES IN OPPOSITION TO MOTION FOR ORDER COMPELLING FURTHER ANSWERS TO INTERROGATORIES, etc.Ww nN n wo Cc Cc The bottom line here in that at no point in time did Moving Party’s counsel attempt to Meet and Confer regarding response to Special Interrogatories “1 & 3” in the “41" case - at all times, counsel only addressed Special Interrogatories “1 & 3" in the “57" case, 4, The Subject Interrogatories Are An Attempt To “Reset The Clock”, The two (2) special interrogatories of which Moving Party now complains are practically identicat to two (2) special interrogatories previously propounded by Moving Party in the companion“57" case referenced above. Exhibit “D" hereto is a copy of Moving Party's Special Interrogatories to this Petitioner in the “57” Will contest action. Special Interrogatory Number 1 asks for each and every fact upon which Petitioner contends that the Will of decedent was executed as a result of undue influence. The Will referenced therein was dated November 2, 2004 and was executed as a companion document to, and at the same time as, the Revocable Living Trust. Special Interrogatory Number 3 in the Wilf contest asks the same question but instead of undue influence, the questions requests facts as to lack of mental capacity. These are the same interrogatories which are the subject of this motion with the simple exception that they address the Will rather than the companion and concurrently executed trust instrument. In the “57" case, Petitioner provided her answers (see Exhibit “E” hereto). The responses provided in the “57" case contain the same information provided in the responses Moving Party bases this motion on but as can be seen from Exhibit “D’, Moving Party delayed too long to file a motion compelling further responses. This motion seeks the same information previously asked in the “57" case and is simply an attempt to reset the forty-five (45) day clock by asking the same questions. A party who failed to meet the 45-day deadline cannot ‘reset the clock' by asking the same questions again in a later set of interrogatories. The failure waives the right to compel answers to those questions. See Professional Career Colleges, Magna Institute, Inc. v. Sup. Ct. (Stewart) (1989) 207 CA3d 490, 494, ‘MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO MOTION FOR ORDER COMPELLING FURTHER ANSWERS TO INTERROGATORIES, etc. 10wo ont DH OH ®F WN NON Ny NY NM NY NY N NY PB BP BP Be Pe BP eB Pe oI A oO 8B WH EF Oo OD HT DH B® YW NH HF OO D. Petitioner Is Entitled To Sanctions The court may order the Moving Party to pay the Petitioner’s expenses and fees in resisting discovery motion where the motion is denied. CCP §2023.030(d). The court “shall impose a monetary sanction against a losing party or attorney unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanctions unjust.” CCP §2030.290(c). Neither of the grounds allowing for the court to exercise such discretion is present in this instance. As can be seen in the herein accompanying Declaration of Robert B. Mitchell, 1.0 hours were expended in the “Admissions” motion, .7 hours for the Form Interrogatories, no less that 3.7 hours on the Special Interrogatories motion and an expected 2.7 hours reviews Moving Party's reply and attending this hearing, all of which result in the following attorney's fees: 1. Opposition for Facts Deemed Admitted $ 300.00 2. Opposition for Form Interrogatories 210.00 3. Opposition for Special Interrogatories 1,110.00 4 Appearance at hearing 780.00 TOTAL $2,400.00 In addition thereto, Moving Party had earlier improperly noticed this motion which required this Petitioner to file an opposition (see filing of September 16). !n that opposition, this Petitioner requested attorney's fees of $450.00. That request is repeated here. Petitioner respectfully requests that this court order attorney David Friedenberg and Moving Party to pay Petitioner forthwith as and for sanctions, the sum of $2,850.00. ROBERT B. MITCHELL, Attorney for Petitioner MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO MOTION FOR ORDER COMPELLING FURTHER ANSWERS TO INTERROGATORIES, etc. 11ww Nn yw oa ann « 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 € ¢ PROOF OF SERVICE BY MAIL - C.C.P. 1013a, 2015.5 I declare that | am employed in the County of Contra Costa, California. |am over the age of eighteen years and not a party to the within cause. My business address is 1850 Mt. Diablo Bivd., Ste. 670, Walnut Creek, CA 94596-4407. On October 3, 2005, | served the within MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO MOTION FOR ORDER COMPELLING FURTHER ANSWERS TO INTERROGATORIES, THAT FACTS BE DEEMED ADMITTED, FOR ATTORNEYS FEES, COSTS AND SANCTIONS and DECLARATION OF ROBERT B. MITCHELL IN OPPOSITION TO MOTION FOR ORDER COMPELLING FURTHER ANSWERS TO INTERROGATORIES, THAT FACTS BE DEEMED ADMITTED, FOR ATTORNEYS FEES, COSTS AND SANCTIONS on the hereinafter named person(s) by placing a true copy thereof enclosed in a sealed envelope with postage thereon fully prepaid, in the United States mail at Walnut Creek, California, addressed as follows: DAVID J. FRIEDENBERG Attorney at Law 2171 Junipero Serra Boulevard, #620 Daly City, CA 94014 ERNEST F. DER Attorney at Law 101 Howard Street, Suite 490 San Francisco, CA 94105 CAROLINE K. HINSHAW 425 California Street, Ste. 900 San Francisco, CA 94104 | declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct and that this Declaration was executed on October 43, 2005, at Walnut Creek, California. Cynthid D. Greco MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO MOTION FOR ORDER COMPELLING FURTHER ANSWERS TO INTERROGATORIES, etc. 12Legal Tabs Co. 1-800-322-2022 Recycled GB Stocks ASB EXHIBIT A fPROOF OF SERVICE BY MAIL The undersigned does hereby declare as follows: 1. Tam a citizen of the United States, over the age of 18 years and not a party to the within entitled action. 2. Iam employed at and my business address is 2171 Junipero Serra Blvd., Ste. 620, Daly City, California 94014. 3. On the date below, [placed FORM INTERROGATORIES-SET ONE; REQUEST FOR ADMISSIONS-SET ONE; REQUEST FOR PRODUCTION OF DOCUMENTS-SET ONE ina sealed envelope with postage fully prepaid in the United States mail at Daly City, California addressed as follows: DEAN M. SPELLMAN, ESQ. 1850 Mt. Diablo Blvd., Ste. 670 Walnut Creek, CA 94596-4407 I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on Jun tue, PAMELA I. MARSH 2005 at Daly City, California. EXHIBIT “A”Legal Tabs Co. 1-600-322-3022 Recycled & ‘Stock # EXA-5-B EXHIBIT B fyp OD tn HO ®F WN B&B NN NM NHN NY NY NY NN BP Be eB Be eB Be Be Be BP OAD OU BRB WHF DoD OD a DH B® WH YH OO C ¢ PROOF OF SERVICE BY MAIL -C.C.P. 1013a, 2015.5 | declare that | am employed in the County of Contra Costa, California. | am over the age of eighteen years and not a party to the within cause. My business address Is 1850 Mt. Diablo Blvd., Ste. 670, Walnut Creek, CA 94596-4407. On June 29, 2005, | served the within RESPONSE TO RESPONDENT'S REQUEST FOR ADMISSIONS, SET NO. ONE on the hereinafter named person(s) by placing a true copy thereof enclosed in a sealed envelope with postage thereon fully prepaid, in the United States mail at Walnut Creek, California, addressed as follows: DAVID J. FRIEDENBERG Attorney at Law 2171 Junipero Serra Boulevard, #620 Daly City, CA 94014 | declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct and that this Declaration was executed on June 29, 2005, at Walnut Creek, California. EXFEEIT “B” RESPONSE TO RESPONDENT’S REQUEST FOR ADMISSIONS, SET NO. ONELegal Tabs Co. 1-800-322-9022 Recycied EB) Stock #EXASB EXHIBIT C fwn we Cc Cc PROOF OF SERVICE BY MAIL - C.C.P. 1013a, 2015.5 \ declare that | am employed in the County of Contra Costa, California. !am over the age of eighteen years and not a party to the within cause. My business address is 1850 Mt. Diablo Bivd., Ste. 670, Walnut Creek, CA 94596-4407. On June 29, 2005, ! served the within RESPONSE TO RESPONDENT'S FORM INTERROGATORIES, SET NO. ONE on the hereinafter named person(s) by placing a true copy thereof enclosed in a sealed envelope with postage thereon fully prepaid, in the United States mail at Walnut Creek, California, addressed as follows: DAVID J, FRIEDENBERG oT Wonipero Serra Boulevard, #620 Daly City, CA 94014 | declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct and that this Declaration was executed on June 29, 2005, at Walnut Creek, California. CYNYHIA D. GRECO RESPONSE TO RESPONDENT'S FORM INTERROGATORIES, SET NO. ONE a AHHEIT “i”Legal Tabs Co. 1-800-322-2022 , Recyted (a) Stock #EXASB EXHIBIT D jC C DAVID J. FRIEDENBERG, ESQ. SBN 25026 2171 Junipero Serra Blvd., Ste. 620 Daly City, CA 94014 Telephone: (650) 755-6622 Facsimile: (650) 755-4312 Attomey for Respondent EVA KNOTT SUPERIOR COURT OF THE STATE OF CALIFORNIA CITY AND COUNTY OF SAN FRANCISCO ESTATE OF ) Case No, PES 05-287457 ) CHARLES ACTIS y - ) RESPONDENT EVA KNOTT’S SPECIAL Decedent ) INTERROGATORIES-SET ONE TO ) CONTESTANT CAROL MITCHELL ) CAROL MITCHELL, ) ) Contestant, ) ) v. ) ) EVA KNOTT, } Respondent ) ) PROPOUNDING PARTY: Respondent EVA KNOTT RESPONDING PARTY: Petitioner CAROL MITCHELE SET NUMBER: ONE You are hereby requested under the Code of Civil Procedure §2030 to provide Respondent, EVA KNOTT, the following information: SPECIAL INTERROGATORY NO. 1: State in detail each and every fact upon which you base your contention as set forth in paragraph V of your Objection of Probate of Will, that the execution of the Will by Decedent herein was the 1 SPECIAL INTERROGATORIES-SET ONE EXHIBIT “Dp”O C Cc result of undue influence. SPECIAL INTERROGATORY NO. 2: State the names and addresses of each person known to you whom you contend can offer relevant testimony regarding your reply to Special Interrogatory No. I above. SPECIAL INTERROGATORY NO. 3: State in detail each and every fact upon which you base your contention as set forth in paragraph V of your Objection of Probate of Will, that Decedent lacked the sufficient mental capacity to understand and comprehend the consequences of his acts. SPECIAL INTERROGATORY NO. 4: State the names and addresses of each person known to you whom you contend can offer relevant testimony regarding your reply to Special Interrogatory No. 3 above. Dated: June Ze, 2005 DAVID J. FRIEDENBERG, ESQ. Attomey for Respondent EV. 2 SPECIAL INTERROGATORIES-SET ONECc C PROOF OF SERVICE BY MAIL The undersigned does hereby declare as follows: 1. Tam a citizen of the United States, over the age of 18 years and not a party to the within entitled action. 2, Iam employed at and my business address is 2171 Junipero Serra Blvd., Ste. 620, Daly City, California 94014. 3. On the date beiow, I placed RESPON DENT EVA KNOTT’S SPECIAL INTERROGATORIS-SET ONE and RESPONDENT EVA KNOTT’S REQUEST FOR PRODUCTION OF DOCUMENTS-SET ONE ina sealed envelope with postage fully prepaid in the United States mail at Daly City, California addressed as follows: , DEAN M. SPELLMAN, ESQ. 1850 Mt. Diablo Bivd., Ste. 670 Walnut Creek, CA 94596-4407 I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on June 005 at Daly City, California. PAMELA I. MARSHLegal Tabs Co, 1-800-222-3022 Recyted PB) Siok ASB EXHIBIT E fC C DEAN M. SPELLMAN, #060042 1850 Mt. Diablo Blvd., Ste. 670 Walnut Creek, Catifornia 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 ESTATE OF: Case Number: PES 05-287457 CHARLES ACTIS RESPONSE TO RESPONDENT EVA KNOTT'S SPECIAL Decedent INTERROGATORIES, SET NO. ONE TO CONTESTANT CAROL MITCHELL CAROL MITCHELL Contestant vs. EVA KNOTT, Respondent. PROPOUNDING PARTY: Respondent, EVA KNOTT RESPONDING PARTY: Contestant CAROL MITCHELL SET NO: ONE GENERAL OBJECTIONS 1. Answering party objects to these interrogatories as burdensome, oppressive and harassing. 2. Answering party objects to each interrogatory to the extent that it would RESPONSE TO RESPONDENT EVA KNOTT’S SPECIAL INTERROGATORIES, SET NO. ONE TO CONTESTANT CAROL MITCHELL : EXWIGIT “En s apo OY A HW B® Ww nH NN BP YF Be Be Be Be Pe PP PB FP oO fw ON DH HU Bw WwW NH HP OD C C require disclosure of materials or information protected by the attorney-client privilege, work-product doctrine, or other legally recognized privilege against disclosure. 3. Answering party further objects to each interrogatory to the extent that it would require responses by answering party which are different from or in addition to the responses required by the California Code of Civil Procedure and applicable case authority. 4. Answering party objects to each interrogatory on the grounds that it seeks information exclusively within the possession of Asking party which has not yet been produced, Discovery is still continuing and further evidence and information will undoubtedly be obtained through such discovery. Without acknowledging any obligation to do so except as required by law, plaintiff reserves the right to alter or amend these responses when and if new or additional information becomes available. 5. These general responses are incorporated by this reference into each of the responses set forth below. RESPONSE TO SPECIAL INTERROGATORY NO.1: Pursuant to California Code of Civil Procedure §2030(f}(2), attached hereto please find Bates stamped documents 200001 through 200019. Discovery is continuing. RESPONSE TO SPECIAL INTERROGATORY NO.2: Abraham Nievod, 1065 Mariposa Ave., Berkeley, CA 94707. Discovery is continuing. RESPONSE TO SPECIAL INTERROGATORY NO.3: Pursuant to California Code of Civil Procedure §2030(f)(2), attached hereto please find Bates stamped documents 200001 through 200019. Discovery is continuing. RESPONSE TO SPECIAL INTERROGATORY NO.4: Abraham Nievod, 1065 Mariposa Ave., Berkeley, CA 94707. Discovery is RESPONSE TO RESPONDENT EVA KNOTT’S SPECIAL INTERROGATORIES, SET NO. ONE TO CONTESTANT CAROL MITCHELLyw ard nu ® wne 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 continuing. AS TO OBJECTIONS ONLY. Dated: June 28, 2005 NM. SRELLMAN, Attorney for Contestant/Responding Party RESPONSE TO RESPONDENT EVA KNOTT’S SPECIAL INTERROGATORIES, SET NO. ONE TO CONTESTANT CAROL MITCHELLVERIFICATION STATE OF CALIFORNIA COUNTY OF CONTRA COSTA lam the Petitioner in the above-entitled action; | have read the foregoing RESPONSE TO RESPONDENT EVA KNOTT’S SPECIAL INTERROGATORIES, SET NO. ONE TO CONTESTANT CAROL MITCHELL and know the contents thereof; and t certify that the same is true of my own knowledge, except as to those matters which are therein stated upon my information and belief, and as to those matters | believe it to be true. | declare under penalty of perjury that the foregoing is true and correct and that this verification was executed at Walnut Creek, California this 27" day of June, 2005. CAROL MITCHE! RESPONSE TO RESPONDENT EVA KNOTI’S SPECIAL INTERROGATORIES, SET NO. ONE TO CONTESTANT CAROL MITCHELLCc C PROOF OF SERVICE BY MAIL - C.C.P. 1013a, 2015.5 | declare that | am employed in the County of Contra Costa, California. | am over the age of eighteen years and not a party to the within cause. My business address is 1850 Mt. Diablo Blvd., Ste. 670, Walnut Creek, CA 94596-4407. On June 29, 2005, I served the within RESPONSE TO RESPONDENT EVA KNOTT’S SPECIAL INTERROGATORIES, SET NO. ONE TO CONTESTANT CAROL MITCHELL on the hereinafter named person(s) by placing a true copy thereof enclosed in a sealed envelope with postage thereon fully prepaid, in the United States mail at Walnut Creek, California, addressed as follows: DAVID J. FRIEDENBERG Attorney at Law 2171 Junipero Serra Boulevard, #620 Daly City, CA 94014 | declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct and that this Declaration was executed on June 29, 2005, at Walnut Creek, Califomia. Gees D. GRECO 6 RESPONSE TO RESPONDENT EVA KNOTT’S SPECIAL INTERROGATORIES, SET NO. ONE TO CONTESTANT CAROL MITCHELL‘Legal Tabs Co. 1-800-322-3022 Racyted EY Stock HEXASS EXHIBIT F f-1 PROOF OF SERVICE BY MAIL - C.C.P. 1013a, 2015.5 2 | declare that | am employed in the County of Contra Costa, California. | am over 3 || the age of eighteen years and not a party to the within cause. My business address is 4 || 1850 Mt. Diablo Bivd., Ste. 670, Walnut Creek, CA 94596-4407. 5 On August 3, 2005, I served the within RESPONSE TO RESPONDENT'S 6 || SPECIAL INTERROGATORIES -SET NO. ONE TO CAROL MITCHELL on the 7 || hereinafter named person(s) by placing a true copy thereof enclosed in a sealed 8 |, envelope with postage thereon fully prepaid, in the United States mail at Walnut Creek, 9] Califomia, addressed as follows: 10 DAVID J. FRIEDENBERG Attorney at Law 11 2171 Junipero Serra Boulevard, #620 Daly City, CA 94014 12 13 | declare under penalty of perjury under the laws of the State of California that i4 || the foregoing is true and correct and that this Declaration was executed on August 3, 15] 2005, at Walnut Creek, Califomia. cy 1A D, GRECO RESPONSE TO RESPONDENT'S SPECIAL INTERROGATORIES -SET NO. EXHIBIT “fLegal Tabs Co. 1-200:322.3022 Recycled 2D Stock #EXASB EXHIBIT G fDAVID J. FRIEDENBERG Cc 2171 JUNPERO SERRA BOULEVARD SUITE 620 DALY CITY, CA 94014 Telephone: (650) 755-6622. ° ~~ FAX: (650) 755-4312 July 12, 2005 By facsimile and mail (925) 938-5882 Dean M. Spellman, Esq. 1850 Mt. Diablo Blvd., Ste. 670 Walnut Creek, CA 94596-4407 Re: — Mitchell v. Knott . Case No. PTR-05-287341 Dear Mr. Spellman: This is in response to your facsimile/letter to me of July 7, 2005. Special Interrogatories Nos. 1 & 3: re Mitchell v. Knott (Petition to Determine Validity of Trust and Will). Request for Admission. Your client, Carol Mitchell, filed a verified Complaint setting forth several allegations including allegations regarding undue influence and that Charles Actis was of unsound mind. She stated under penalty of perjury that she knew the contents thereof and they were true of her own knowledge. I have not asked fora legal opinion - only tequest for admissions regarding the allegations and contentions made by your client. If you will read Interrogatory No. 17.1 it states if your response is anything but “an unqualified admission you should state (b) all facts upon which you base your response”. The court or trier of fact will resolve the legal questions, however, your client is obligated to set forth the facts upon which she made the contentions in the Complaint. I hope you are not trying to tell me that Ms. Mitchell perjured herself when she signed the Verification under penalty of perjury. If not, she should answer the Request for Admissions and the corresponding Interrogatory 17.1 to the best of her knowledge and ability regarding the facts upon which she made said allegations, again without a legal opinion. Regarding Form Interrogatories, as stated in my letter of June 30, 2005, the word “incident” refers for the purposes of these interrogatories, to the execution by Charles Actis of his Living Trust and Will on November 2, 2004. exnipit__[ EXHIBIT “G%Dean M. Spellman, Esq. C July 12,2005 . Page two The reference to "Petition for Entitlement” refers to action No. 05-287341, Mitchell v. Knott - Petition to Determine Validity of Revocable Living Trust and Will. However, To resolve the question of the Form Interrogatories, I propose the following: instead of responding to 12.1 and 12.2, a full and complete response to Special Interrogatories Nos. t-4 will be acceptable. Regarding Form Interrogatory 12.3, "Have you or anyone acting on your behalf obtained a written or recorded statement from any individual concerning ‘the incident" relates to your allegations that the Trust and Will herein were executed as a result of undue influence and/or the allegations that Charles Actis lacked the mental capacity to execute said documents. Omit 12.4 - 12.7. 14.1 Omit Regarding Special Interrogatories, Estate of Charles Actis, Case No. 05-287457: As stated in my letter to you of June 30, 2005, your responses to Special Interrogatories Nos. 1 & 3 are incomplete and non-responsive. As you well know, CCP §2030(f)(1) states that "each answer and response shall be as complete and straightforward as the information really available to responding party permits ...." It certainly does not call for a compilation or a summary. Furthermore, when a specific question is asked it is improper to mail or refer to a 16-page report (of Dr. Nievod). To make matters worse, half of Dr. Nievod’s report you sent me is illegible. I called your secretary on July 5, 2005 and asked her to fax me a good copy that could be read in its entirety and she said your copy is evidently the same as mine. However, in an effort to resolve this matter, if you will send me a good copy of Dr. Nievod’s report that can be read in its entirety, and a supplemental verified response from Ms. Mitchell that she has no facts or information in response to Special Interrogatories Nos. 1 & 3, other than that set forth in Dr. Nievod’s report, that will be acceptable. I would like to have this matter resolved, if possible, without the necessity of filing a Motion to Compel Further Responses to the discovery and that the Request for Admissions be Deemed Admitted, It is again requested that you provide the further responses as set forth above within one (1) week of this letter, and also call me regarding any of the matters where you still disagree to see if we can resolve these with a telephone conversation. Your prompt reply is therefore requested. Very truly yours, David J. Friedenberg DJF\pmLegal Tabs Co. 1-800-222-3022 a Recycled & Stock # EXA-5-B EXHIBIT H fDEAN M. SPELLMAN ATTORNEY AT LAW 1850 MT. DIABLO BLVO., SUITE 670 WALNUT CREEK, CALIFORNIA 94596-4407 (925) 938-5880 Fax (925) 938-5882 E-Mail: SPMILAW@SBCGLOBAL.NET July 22, 2005 DAVID J. FRIEDENBERG Attorney at Law 2171 Junipero Serra Boulevard, #620 Daly City, CA 94014 VIA FAX (650) 755-4312 - HARD COPY TO FOLLOW Re: Mitchell v. Knott; Estate of Charles Actis Dear Mr. Friedenberg: | am in receipt of your letter dated July 12, 2005, and | will again attempt to explain to you the problems with your discovery as well as reminding you what was said to you by my secretary. Special interrogatories 1 & 3 In the second paragraph of your letter, you associate “Special interrogatories Nos. 1 & 3" with the matter of “Mitchell v. Knott”. The problem with the discovery which is the subject of your letter is your use of imprecise language and this is again another example of this problem. My client has never provided you with answers to Special Interrogatories in the Mitchell v. Knott matter. As you know, there are two (2) matters currently pending in connection with the death of Mr. Actis. The first is my client's petition as to the validity of certain instruments (Mitchell v. Knott) and filed under San Francisco Superior Court Case number 05- 287341 (hereinafter referred to as the “Validity Petition"). The second is the Petition for Probate filed under San Francisco Superior Court Case number 05-287457 (hereinafter referred to as the “Probate Petition’). The only response to special interrogatories that Ms. Mitchel! has served you with is in the Probate Petition matter. So when you refer to my client's responses in the “Mitchell v. Knott” matter, | have no response since you are talking about responses that do not exist. However, if you are referring to Ms. Mitchell's responses to Special! Interrogatories in the Probate Petition matter, here again there is a problem because your complaint is that she makes the “legal opinion” objection. However, Ms. Mitchel! does make that objection in her response to those special interrogatories. Consequently, | do not understand what point you are trying to make in your second paragraph as to these “Special Interrogatories Nos. 1 & 3°, EXHIBIT “}} "DAVID J, FRIEDENBERG July 22, 2005 Page 2 Request for Admissions As | pointed out before, you fail to specify which admission request to which you take exception and by failing to do so, | am called upon to quess as to which number[s] your comments are directed. Consequently, be advised that Ms. Mitchell made no allegation in her petition as to the issues raised in you client’s Request A1 nor did she make the “legal” objection to Requests A5, AG or B. So | therefore “guess” that your letter is directed to Requests A2, A3 and A4. With that in mind, Ms. Mitchell stands by her objections and | again refer you to my letter of July 7” on this subject as well as Ms. Mitchell's responses to those requests. While your letter states that you seek “the facts upon which [Ms. Mitchell] made ... allegations” and “to the best of her knowledge and ability”, that is not what the subject Request For Admissions requests. The Request For Admissions seek an admission of an ultimate fact in this matter. Based upon the remarks made in your letter, you recognize the problem with your Request For Admissions. tf one seeks the facts upon which allegations are made, most attorneys propound interrogatories asking precisely those questions. And as you have been told a number of times, at this point in time, the answer would be Dr. Nievod's report. You have received the information you seek ina variety of ways yet you continue to threaten a motion to obtain information that you have already received. Is this not abusive tactics? Form Interrogatories - Definition of “Incident” You fail to appreciate that Ms. Mitchell answered the subject form interrogatories based upon your original definition of “Incident”. You now appear to want to define the term differently and in so doing, you accuse my client of not properly answering the interrogatories as originally posed. Given the fact that | cannot predict your revisions of previously defined terms, my client’s responses are proper given the questions as originally posed. “Petition for Entitlement” Here you disclose a “secret” meaning of a proper name under which you seek my client's verified responses. By capitalizing this phrase, you made the phrase a proper name but yet now you tell me that there is in fact no instrument with that name. However, you do tell me that | am somehow to know that when you state “Petition for Entitlement” | am to know that you mean an entirely different document entitled “Petition to Determine Validity of Purported Will and Trust and to Impose Constructive Trust’. Realistically, how can you expect me to allow my client to sign a response under penalty of perjury which incorporates a document to which only you know the identity of ? Proposal for Resolution In order to resolve these matters along the lines proposed by you, | propose resolution as follows:DAVID J. FRIEDENBERG July 22, 2005 Page 3 1. Ms. Mitchell will serve two (2) responses to form interrogatory 12.3. The first response will answer the question: Have you or anyone acting on your behalf interviewed any individua! concerning the existence of undue influence as to Charles Actis' execution of that certain revocable living trust referenced in Paragraph 2 of the Petition to Determine Validity of Purported Will and Trust and to Impose Constructive Trust on file herein? The second response will answer the question: Have you or anyone acting on your behalf interviewed any individual concerning the existence of mental incapacity of Charles Actis in his execution of that certain revocable living trust referenced in paragraph 2 of the Petition to Determine Validity of Purported Will and Trust and to Impose Constructive Trust on file herein? 2. Ms. Mitchell will provided verified responses to these two questions provided your client waives all objections to Ms. Mitchell's responses to your client's Form Interrogatories, Set No. One and Request For Admissions, Set No. One, both under the Validity Petition, and your client's Special Interrogatories, Set Number One under the Probate Petition. | offer this so that we can place these matters behind us in total. Special Interrogatories - Probate Petition Contrary to your assertion, Ms. Mitchell's response does call “for a compilation or @ summary”. Your insistence to the contrary gives every indication that you are using your discovery responses only to harass me and my client. As you have been repeatedly informed, the allegations in the subject petition were based exclusively on the report of Dr. Nievod. The facts upon which Dr. Nievod’s report is based is contained in his report. What you are insisting upon is that my client go through Dr. Nievod's report and extract each fact that the good doctor makes reference to. In other words, you are asking my client to make a compilation or summary of Dr. Nievod's report. Again, she is not required to do so and | once again refer you to CCP §2030(f)(2). Report of Dr. Nievod While it is true that you telephoned my secretary on July 5", you either have forgotten or chose to ignore that which she stated to you regarding Dr. Nievod's report, As my secretary informed you, the Dr. Nievod report which was forwarded to you is the clearest