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Sep-20-2005 8:24 am
Case Number: PTR-05-287341
Filing Date: Sep-16-2005 8:21
Juke Box: 001 Image: 01285474
‘ MEMORANDUM OF POINTS AND AUTHORITIES
IN THE MATTER OF IN RE REVOCABLE LIVING TRUST AGREEMENT OF CHARLES AC
001P01285474
Instructions:
Please place this sheet on top of the document to be scanned.wn eB
C
DEAN M. SPELLMAN, #060042
1850 Mt. Diablo Blvd., Ste. 670
Walnut Creek, California 94596-4407
Telephone: (925) 938-5880
Attorney for CAROL MITCHELL
IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF SAN FRANCISCO
IN RE REVOCABLE LIVING TRUST
AGREEMENT OF CHARLES ACTIS
DATED NOVEMBER 2, 2004, AND WILL
DATED NOVEMBER 2, 2004
CAROL MITCHELL,
Petitioner,
vs.
EVA V. KNOTT, Trustee and Beneficia
under the REVOCABLE LIVING TRUS
AGREEMENT OF CHARLES ACTIS
DATED 11/2/04, NICHOLAS FERRERO,
a minor and a will and trust beneficiary
and NATALIE FERRERO, a minor anda
will and trust beneficiary,
Respondents.
l_ INTRODUCTION
Case Number PTR-05-287341
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: September 29, 2005
Time: 10:30 a.m.
Dept. No: 612
Filing Date: May 4, 2005
Judge: John Dearman
Trial Date: Not Assigned
Respondent's counsel has at every opportunity, thwarted the discovery process
and has only used that discovery process to harass and harangue Petitioner. This
motion of Respondent is simply another step in that process. Not only must the subject
motion be denied, sanctions should be assessed against Respondent's attorney for
MEMORANDUM OF POINTS AND AUTHORITIES IN
OPPOSITION TO MOTION FOR ORDER COMPELLING
FURTHER ANSWERS TO INTERROGATORIES, ete.Y Dn OW B® WN
C C
engaging in such motion practice.
I AUTHORITY
A. Moving Party Failed To Give Adequate Notice
A motion can only be noticed for hearing sixteen (16) court days or more after
the papers are served. CCP §1005(b). If the motion Papers are served by mail, the
required notice is increased by an additional five (5) calendar days if the papers are
mailed in California to an address in California. CCP §1005(b).
As is seen from the subject motion, same was served by mail on September 7,
2005, and noticed the hearing for September 29", only sixteen (16) court days after
mailing. Responding party is entitled to a minimum of twenty-one (21) court days of
notice under CCP §1005(b). The earliest possible hearing date for this motion with a
September 7” service date was October 6, 2005."
B. Responding Party Is Entitled To Sanctions
The court may order the moving party to pay the responding party’s expenses
and fees in resisting discovery motion where the motion is denied. CCP §2023.030(d).
As can be seen in the herein accompanying Declaration of Dean M. Spellman,
1.5 hours were expended reviewing the subject motion, requesting from moving party’s
counsel copies of the exhibits which were excluded from the initia! mailing, research
regarding statutory notice requirements and preparing this opposition and the
accompanying Declaration of Dean M. Spellman.
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. There is no substantial justification for short notice.
In addition, Respondent's motion was served with no exhibits. After being advised of such deficiency,
Respondent's counsel delayed another four (4) days before causing the subject exhibits to be received by this
Responding Party's counsel.
MEMORANOUM OF POINTS AND AUTHORITIES IN
OPPOSITION TO MOTION FOR ORDER COMPELLING
FURTHER ANSWERS TO INTERROGATORIES, etc,Additionally, the filing of this subject motion was simply an attempt to counter this
responding party's own discovery motion set on the same date and time.
Responding party respectfully requests that this court order attorney David
Friedenberg to pay forthwith to Dean M. SPELLMAN the sum of $450.00.
A copy of the proposed order is attached hereto and marked as Exhibit “A”.
Dated: September 13, 2005.
!
DEAN M. SPBLLMAN, Attorney for Petitioner
PROOF OF SERVICE BY MAIL - C.C.P. 1013a, 2015.5
| declare that | am employed in the County of Contra Costa, California. lam 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 September 13, 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 DEAN M. SPELLMAN 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
MEMORANDUM OF POINTS AND AUTHORITIES IN
OPPOSITION TO MOTION FOR ORDER COMPELLING
FURTHER ANSWERS TO INTERROGATORIES, etc.nN
wa
C C
| 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 September
13, 2005, at Walnut Creek, California.
MEMORANDUM OF POINTS AND AUTHORITIES IN
OPPOSITION TO MOTION FOR ORDER COMPELLING
FURTHER ANSWERS TO INTERROGATORIES, etc.
Preview
IMAC San Francisco Superior Courts Information Technology Group Document Scanning Lead Sheet Sep-20-2005 8:24 am Case Number: PTR-05-287341 Filing Date: Sep-16-2005 8:21 Juke Box: 001 Image: 01285474 ‘ MEMORANDUM OF POINTS AND AUTHORITIES IN THE MATTER OF IN RE REVOCABLE LIVING TRUST AGREEMENT OF CHARLES AC 001P01285474 Instructions: Please place this sheet on top of the document to be scanned.wn eB C DEAN M. SPELLMAN, #060042 1850 Mt. Diablo Blvd., Ste. 670 Walnut Creek, California 94596-4407 Telephone: (925) 938-5880 Attorney for CAROL MITCHELL IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF SAN FRANCISCO IN RE REVOCABLE LIVING TRUST AGREEMENT OF CHARLES ACTIS DATED NOVEMBER 2, 2004, AND WILL DATED NOVEMBER 2, 2004 CAROL MITCHELL, Petitioner, vs. EVA V. KNOTT, Trustee and Beneficia under the REVOCABLE LIVING TRUS AGREEMENT OF CHARLES ACTIS DATED 11/2/04, NICHOLAS FERRERO, a minor and a will and trust beneficiary and NATALIE FERRERO, a minor anda will and trust beneficiary, Respondents. l_ INTRODUCTION Case Number PTR-05-287341 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: September 29, 2005 Time: 10:30 a.m. Dept. No: 612 Filing Date: May 4, 2005 Judge: John Dearman Trial Date: Not Assigned Respondent's counsel has at every opportunity, thwarted the discovery process and has only used that discovery process to harass and harangue Petitioner. This motion of Respondent is simply another step in that process. Not only must the subject motion be denied, sanctions should be assessed against Respondent's attorney for MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO MOTION FOR ORDER COMPELLING FURTHER ANSWERS TO INTERROGATORIES, ete.Y Dn OW B® WN C C engaging in such motion practice. I AUTHORITY A. Moving Party Failed To Give Adequate Notice A motion can only be noticed for hearing sixteen (16) court days or more after the papers are served. CCP §1005(b). If the motion Papers are served by mail, the required notice is increased by an additional five (5) calendar days if the papers are mailed in California to an address in California. CCP §1005(b). As is seen from the subject motion, same was served by mail on September 7, 2005, and noticed the hearing for September 29", only sixteen (16) court days after mailing. Responding party is entitled to a minimum of twenty-one (21) court days of notice under CCP §1005(b). The earliest possible hearing date for this motion with a September 7” service date was October 6, 2005." B. Responding Party Is Entitled To Sanctions The court may order the moving party to pay the responding party’s expenses and fees in resisting discovery motion where the motion is denied. CCP §2023.030(d). As can be seen in the herein accompanying Declaration of Dean M. Spellman, 1.5 hours were expended reviewing the subject motion, requesting from moving party’s counsel copies of the exhibits which were excluded from the initia! mailing, research regarding statutory notice requirements and preparing this opposition and the accompanying Declaration of Dean M. Spellman. 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. There is no substantial justification for short notice. In addition, Respondent's motion was served with no exhibits. After being advised of such deficiency, Respondent's counsel delayed another four (4) days before causing the subject exhibits to be received by this Responding Party's counsel. MEMORANOUM OF POINTS AND AUTHORITIES IN OPPOSITION TO MOTION FOR ORDER COMPELLING FURTHER ANSWERS TO INTERROGATORIES, etc,Additionally, the filing of this subject motion was simply an attempt to counter this responding party's own discovery motion set on the same date and time. Responding party respectfully requests that this court order attorney David Friedenberg to pay forthwith to Dean M. SPELLMAN the sum of $450.00. A copy of the proposed order is attached hereto and marked as Exhibit “A”. Dated: September 13, 2005. ! DEAN M. SPBLLMAN, Attorney for Petitioner PROOF OF SERVICE BY MAIL - C.C.P. 1013a, 2015.5 | declare that | am employed in the County of Contra Costa, California. lam 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 September 13, 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 DEAN M. SPELLMAN 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 MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO MOTION FOR ORDER COMPELLING FURTHER ANSWERS TO INTERROGATORIES, etc.nN wa C C | 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 September 13, 2005, at Walnut Creek, California. MEMORANDUM OF POINTS AND AUTHORITIES IN OPPOSITION TO MOTION FOR ORDER COMPELLING FURTHER ANSWERS TO INTERROGATORIES, etc.