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LAW OFFICES OF BENNY MARTIN ELECTRONICALLY
Benjamin Martin (SBN 257452) FILED
195 41st Street Supertor Court of California,
P.O. Box 11120 County of San Frencisco
Oakland, CA 94611
Phone: (510) 227-4406 40/16/2015,
Email: knowyourightsinsf@ gmail.com BY:CAROL BALISTRERI
Deputy Clerk
Attorneys for Plaintiff Phillip Garcia
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SAN FRANCISCO
UNLIMITED JURISDICTION
PHILLIP GARCIA, an individual, } Case No. CGC-14-538560
Plaintiff, } PLAINTIFF PHILLIP GARCIA’S
) MEMORANDUM OF POINTS AND
vs. ) AUTHORITIES IN SUPPORT OF
) PLAINTIFF'S MOTION TO COMPEL
CARRIE WILSON, in her capacity as trustee of ) FURTHER RESPONSES TO
THE WILSON FAMILY TRUST, SHAUN ) DISCOVERY AND REQUESTS FOR
MARKHAM, an individual, ERIKA ) MONETARY SANCTIONS
MARKHAM, an individual, and ANGELO )
WILSON, an individual, and DOES 1-20. )
} Date: November 9, 2015
) Time: 9:30 a.m.
)
)
)
Defendants. Dept: 501
STATEMENT OF ISSUES
1) Without moving and showing good cause for an extension, is an 85-year-old Defendant Trustee
excused from responding to written discovery when her counsel objects?
2) Is it a misuse of discovery when the Trust’s lawyer cuts and pastes the same boilerplate
objections into more than 100 discovery requests for the admitted purpose of delaying
discovery?
i
PLAINTIFF'S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF'S MOTION
TO COMPEL FURTHER RESPONSES TO DISCOVERY AND REQUESTS FOR MONETARY SANCTIONS
-1-I. URGENCY SURROUNDING THE TRUST’S DISCOVERY RESPONSES.
Obtaining the Trust’s discovery responses carries a heightened level of urgency for four (4)
reasons. First, the Trustee file a motion for summary adjudication (“MSA”), the hearing date for
which is set for December 7, 2015. The Trust’s failure to properly respond to written discovery, or
sit for a deposition, prejudices Plaintiff's ability to prepare his opposition thereto, due November 16,
2015. Second, after the Trustee evaded service of process for almost one (1) year, Plaintiff Garcia
incurred thousands of dollars serving her by publication. Plaintiff Garcia has been waiting for more
than sixteen (16) months to begin discovery. Third, Ms. Wilson’s health problems, and advanced age
calls for expedited procedures under CCP § 36. Fourth, on October 9, 2015, an OSC re: dismissal
and sanctions was issue by this Court because Plaintiff Garcia has been unable to serve Defendants
Shawn Markham and Erika Markham. The outstanding discovery requests seek information and
documents on the location of Shawn Markham and Erika Markham.'
II. PROCEDURAL POSTURE.
a. The Pleadings and Parties.
Defendant Angelo Wilson was served with Plaintiffs original Complaint on April 30, 2014,
and the First Amended Complaint (“FAC”) on July 31, 2014. Declaration of Plaintiff’s Counsel
Benny Martin in Support of Motion to Compel (“Martin Decl.”) § 2. All Defendants paid their
individual first appearance fees on May 30, 2014. Defendant Angelo Wilson filed his original on
November 24, 2014, and his First Amended Answer on February 2, 2015. Defendant Angelo Wilson
filed a Notice of Stay in connection to a bankruptcy filing on April 30, 2015, and then continued to
participate in this litigation by executing an October 2015 declaration in support of the Trustee’s
motion for summary adjudication.’ Martin Decl. § 3.
Plaintiff obtained an order to serve the Trustee via publication on May 14, 2015, and the
Trustee filed her Answer on September 29, 2015.
* Counsel for Shawn Markham and Erika Markham have refused to accept service of process on their behalf.
* In her October 7, 2015, filing, “Notice of Lodgment” of evidence in support of the Trustee’s October 7, 2015 MSA, Mr.
Angelo Wilson filed a declaration. Martin Decl. {| 4, Ex. A.
PLAINTIFF'S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF'S MOTION
TO COMPEL FURTHER RESPONSES TO DISCOVERY AND REQUESTS FOR MONETARY SANCTIONS
-2-Defendants Shawn Markham and Erika Markham have not been served because their location
is unknown to Plaintiff. On October 9, 2015, the Court set an OSC re: dismissal or sanctions for
failing to perfect service thereon. Martin Decl. 4 5, Ex. B.
b. Motions Pending.
Defendant Trust, and Plaintiff Garcia filed cross MSAs on the FAC’s Seventh Cause of
Action. Through counsel, the parties stipulated to have their MSAs heard concurrently, on shortened
time, with oppositions due November 16, 2015. The stipulation was filed with the Court on
September 30, 2015. Martin Decl. § 6, Ex. C. The outstanding written discovery pertains directly to
the issues underlying Plaintiff's Seventh Cause of Action, i.e. agency and authority.
Il. STATEMENT OF FACTS.
a. Discovery Propounded and Objections Served.
* On August 18, 2015, Plaintiff served his Form Interrogatories, Set One; Special Interrogatories,
Set One; Requests for Production of Documents, Set One; Request for Admissions Set One; and a
Notice of Deposition for October 20, 2015 in Dublin Georgia. Martin Decl. § 7, Ex. D.
* On September 22, 2015, Defendant responded, consisting entirely of objections. Martin Decl. § 8,
Ex. E.
b. The Meet and Confer Process.
* On September 11,2015, Defense counsel wrote to Plaintiffs counsel: “Based on your written
discovery. I believe the deposition that was noticed is now off calendar. It can be reset after, we
respond to the current set of discovery.” Martin Decl. § 9, Ex. F.
* On September 11, 2015, Defense counsel transmitted a letter from Dr. Crystal Brown stating that
due to degenerative disc disease, osteoporosis, and osteoarthritis, Ms. Wilson could not travel
prolonged distances. Martin Decl. § 10, Ex. G.
* On September 15,2015, Defense counsel wrote: “I have also spoken with Ms. Wilson's family
recently about responding to the outstanding discovery. I am told that she has taken a turn for the
worse and is not able to respond to discovery at this time. I will endeavor to obtain more
information regarding her health.” Martin Decl. § 11, Ex. H.
* On September 16, 2015, Plaintiff's counsel wrote: “Regarding discovery, and Ms. Wilson’s
health, please keeping in mind that we are suing the trust, not Ms. Wilson. If the Wilsons insist
PLAINTIFF'S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF'S MOTION
TO COMPEL FURTHER RESPONSES TO DISCOVERY AND REQUESTS FOR MONETARY SANCTIONS
-3-on keeping Ms. Wilson as a trustee through her health difficulties, there is not much anyone can
do. Martin Decl. ¥ 12, Ex. 1.
On September 16, 2015, Defense counsel wrote: “Ms. Wilson has a detached Retina and will be
undergoing surgery at the end of this month. | will get a note from her doctor concerning her
condition. She will not be able to attend a deposition until after such time as her vision has
recovered. In addition, she recently fell and has a hip injury. I believe she is taking pain
medication and is not in any condition to respond to discovery at this time.” Martin Decl. § 13,
Ex. J.
On September 16, 2015, Plaintiff's counsel wrote: “So I offer you this: I will grant you a one-
month extension on the Trust's outstanding discovery responses if under the following conditions:
1) You immediately provide Ms. Wilson's home address so that I can arrange the closest possible
deposition center. 2) You respond to all outstanding discovery together, no later than October 24,
2105, with verification and responsive documents, without boilerplate objections. 3) You accept
served of process on behalf of the non-appearing Defendants, Erika Markham and Shawn
Markham.” Martin Decl. § 14, Ex. K.
On September 16, 2015, Defense counsel wrote: “Well, of course, you know I cannot agree to
your condi6ons. So, since I will not be able to provide verifications or documents at this time, I
will provide objections. (Emphasis added) Martin Decl. § 15, Ex. L.
On October 1, 2015, Plaintiff’s counsel met and conferred on the boilerplate and health-based
objections as to the Trust’s Responses to First Set for Form Interrogatories; Responses to
Requests for Admission; Responses. Martin Decl. § 16, Ex. M.
to First Set of Special Interrogatories; Responses to Request for Production of Documents
On October 1, 2015, Defense counsel wrote: “Ms. Wilson just had surgery last week. As soon as
she recovers, we will provide responses to the discovery. I do not have a firm date as to when that
will occur.” Martin Decl. § 16, Ex. N.
On October 9, 2015, Plaintiff's counsel wrote: “Regarding outstanding written discovery, please
let me know when further responses will be provided. In the event you do not let me know when
further responses will be provided by October 14, 2015, I will be forced to move to compel
further responses thereto.” Martin Decl. § 17, Ex. O.
PLAINTIFF'S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF'S MOTION
TO COMPEL FURTHER RESPONSES TO DISCOVERY AND REQUESTS FOR MONETARY SANCTIONS
-4-* On October 14,2015, Defense counsel wrote: “Since, there is no real urgency regarding the case,
it is, after all, not at issue. It would be far easier to move the dates for the Motions for Summary
Adjudications to be heard to January or February.” Martin Decl. § 18, Ex. P.
This motion follows.
IV. RELEVANT LAW ON DISCOVERY.
The Discovery Act provides for discovery “regarding any matter, not privileged, that is
relevant to the subject matter involved in the pending action . . . if the matter either is itself
admissible in evidence or appears to be reasonably calculated to lead to the discovery of admissible
evidence.” CCP § 2017.010. The purpose of discovery is to take the “game” element out of a trial and
allow both parties to obtain the necessary evidence to evaluate and resolve the dispute. Greyhound
Corp. v. Superior Court (1961) 56 Cal. 2d 355, 376. California courts have been broad-minded in
determining whether discovery is reasonably calculated to lead to admissible evidence. The party
seeking discovery is entitled to substantial leeway. California's liberal approach to permissible
discovery generally has led the courts to resolve any doubt in favor of permitting discovery. Pacific
Tel. & Tel. Co. v. Superior Court (1970) 2 Cal.3d 161, 172-73. In doing so, the Courts have taken the
view if an error is made in ruling on a discovery motion, it is better that it be made in favor of
granting discovery of the nondiscoverable rather than denying discovery of information vital to
preparation or presentation of the party's case or to efficacious settlement of the dispute. 2 Hogan,
Modern Cal. Discovery (4th ed. 1988) § 11.2, p. 11; Greyhound Corp., 56 Cal.2d 355, 376.
Vv. ARGUMENT.
a. Defendant Trustee Was Required to Move the Court and Demonstrate Good
Cause to Extend the Time to Respond to Written Discovery.
“Within 30 days after service of interrogatories, the party to whom the interrogatories are
propounded shall serve the original of the response to them on the propounding party...unless on
motion of the responding party the court has extended the time for response.” CCP § 2030.260(a).
According to the Rutter Group:
(1) [8:1025] Court may shorten or extend time: On motion of the
propounding party, the court may shorten the time for response; and conversely,
on motion of the responding party, it may extend the time. [CCP § 2030.260(a)]
PLAINTIFF'S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF'S MOTION
TO COMPEL FURTHER RESPONSES TO DISCOVERY AND REQUESTS FOR MONETARY SANCTIONS
-5-(a) [8:1026] Noticed motion required: In either event a “motion” is
required—apparently meaning a formal, noticed motion.
(Compare: The court may grant ex parte relief, however, limiting the
parties to be served with copies of the response; see §8:1115.)
The Rutter Group, California Practice Guide: Civil Procedure Before Trial, Cal. Prac. Guide Civ.
Pro. Before Trial Ch. 8F-5, §8:1025. The same procedure is required for responses to requests for
admission’ [CCP § 2033.250], and document requests. CCP § 2031.260.' Thus, a noticed motion
was mandatory to extend the time to respond to written discovery. This is because, with a noticed
motion, the Court decides whether good cause exists for an extension. When Defendant Trust took
an extension without so moving, it usurped this good cause finding. In this case, the only medical
documentation pertaining to the affect of the Trustee’s health on participating in discovery is a letter
dated September 15, 201, speaking only to the Trustee’s limited mobility. Martin Decl. § 10, Ex. G.
Defendant Trust was required to demonstrate to the Court how this health issue prevented responses
to written discovery. Instead, frivolous objections were provided.
b. Defendant Has the Burden of Proving the Validity of Her Objections.
The burden is on the party raising objections thereto to show that the objections are valid.
Coy v. Superior Court (1962) 58 Cal. 2d 210, 220-221. Asserting frivolous objections to proper
discovery, is an abuse of the discovery process. CCP §§ 2023.010, and 030.290; Korea Data Systems
Co., Ltd, v. Sup. Ct. (1997) 51 Cal. App. 4th 1513, 1416 (objecting party subject to sanctions for
“boilerplate” objections).
Every form interrogatory was responded to with cut and pasted objections. Even Form
Interrogatory No. 1.1, pertaining to the identity of persons that assisted in preparing the responses
was responded to with boilerplate objections. So too was Form Interrogatory No. 14.1, pertaining to
legal contention that calls for a lawyer’s response was responded to with boilerplate objections.
Lawyers and parties respond to written discovery pertaining to legal matters in the case. Rifkind v.
Sup.Ct. (Good) (1994) 22 Cal.App. 4th 1255, 1259.
* In this regard, the Rutter Group teaches: “An extension apparently cannot be granted ex parte. A noticed motion is
required for this purpose.” The Rutter Group, California Practice Guide: Civil Procedure Before Trial, Cal. Prac. Guide
Civ. Pro. Before Trial Ch. 8F-5, 48-1310.
“In this regard, the Rutter Group teaches: “a noticed motion is required. The Rutter Group, California Practice Guide:
Civil Procedure Before Trial, Cal. Prac. Guide Civ. Pro. Before Trial Ch. 8F-5, {| 8:1461.1.
PLAINTIFF'S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF'S MOTION
TO COMPEL FURTHER RESPONSES TO DISCOVERY AND REQUESTS FOR MONETARY SANCTIONS
-6-Defendant’s lawyers continue to stand behind the health-based objection, that because
“Responding Party is an 85 year old woman who requires surgery,” there is no need to conduct an
reasonable inquiry from other sources such as prior counsel (Mr. Raifsnider) the other 3 Defendants
Defendant’s lawyers represent (i.e. Angelo Wilson, despite the protection of the automatic
bankruptcy stay, continues to participate in this matter as he executed a declaration in support of Ms.
Wilson’s motion for summary adjudication in October 2015, Martin Decl. § 4, Ex. A. ), or from
insurance policies, witnesses interviewed, statements obtained, inspections performed, surveillance
conducted, or the thousands of documents created and produced in the underlying UD action. The
plain language of C.C.P. § 2030.220 indicates Murchison & Cummings must make a reasonable
inquiry from these sources, at minimum.
Additionally, if Ms. Wilson is physically or mentally incapable of carrying out her Trustee
duties, why has a new trustee not bee appointed? Plaintiffs counsel has consistently emphasized:
“Regarding discovery, and Ms. Wilson’s health, please keeping in mind that we are suing the trust,
not Ms. Wilson. If the Wilsons insist on keeping Ms. Wilson as a trustee through her health
difficulties, there is not much anyone can do.” Martin Decl. § 12, Ex. 1.
c. Plaintiff Satisfied His Meet and Confer Obligations.
As required by CCP §§ 2033.290(b)(2), 2030.300(b)(2), 2031.310(b)(2), and 2016.040,
Plaintiff Garcia attempted to resolve this matter informally in a good faith “meet and confer” effort.
Plaintiff raised the issue of Defendant Trust’s wholly inadequate and improper responses, and
Defendant Trust, as set forth above, refused to provide substantive responses Plaintiff has been
unable to informally resolve this matter and is left with no choice but to seek relief from this Court.
d. Plaintiff is Entitled to Monetary Sanctions.
The court “shall” impose monetary sanctions against the losing party and/or counsel on a
motion to compel compliance with written discovery unless it finds the losing party “acted with
substantial justification” or other circumstances make imposition of sanctions “unjust.”
The losing party may be ordered to pay the reasonable expenses, including attorney fees, incurred by
the party prevailing on the motion, CCP § 2023.030(a). The same is true for written interrogatories
[CCP § 2030.290], document demands [CCP §2031.320(b)] and requests for admission. CCP §
2033.290(d). Here, there was no substantial justification for failing to respond to the most basic
PLAINTIFF'S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF'S MOTION
TO COMPEL FURTHER RESPONSES TO DISCOVERY AND REQUESTS FOR MONETARY SANCTIONS
-7-discovery. Every discovery response was a mere cut and paste job, without entirely meritless
objections. Most prominent among them is Form Interrogatory No. 1.1, pertaining to the identity of
persons that assisted in preparing the responses was responded to with boilerplate objections, and
Form Interrogatory No. 14.1, pertaining to legal contentions. Responses to these interrogatories calls
for a lawyer’s response, not the Trustee’s. The boilerplate and health-based objections were entirely
without merit.
Please take particular note that delay was the stated plan of Defendants’ lawyers in
responding to discovery. Plaintiff's counsel would not provide an extension to respond to discovery
because 1) there has already been significant delay in perfecting service of process on the Trustee via
publication; 2) the Trustee’s deposition cannot go forward until after written discovery is complete;
3) the Trustee has information pertaining to the location of Defendants Shawn Markham and Erika
Markham. When Plaintiffs counsel would not provide an extension, Defendants’ counsel responded:
I will provide objections.” Martin Decl. 15, Ex. L?
The content of the propounded written discovery did not matter —Defense counsel was
intent on objecting regardless for the expressed purpose of delay. This is exactly the type of
conduct that warrants sanctions. Korea Data Systems Co., Ltd, v. Sup. Ct. (1997) 51 Cal. App. 4th
1513, 1416 (making frivolous boilerplate objections for the exclusive purpose of delay is
sanctionable as a misuse of the discovery process). These sanctions include “the reasonable
expenses, including attorney's fees” incurred as a result of wrongful conduct. CCP § 2023.030. The
applicable code provisions governing a failure to adequately respond to discovery dictates “[t]he
court shall impose a monetary sanction... against any party, person, or attorney who unsuccessfully
opposes a motion to compel a further response to [discovery], unless it finds that the one subject to
the sanction acted with substantial justification or that other circumstances make the imposition of the
sanction unjust.” CCP § 2030.300 (interrogatories); CCP § 2031.310(h) (demands for production);
CCP § 2033.290(d) (requests for admission).
* Incredibly, Defense counsel also attempted to derail the Trustee’s deposition, stating, “Based on your written discovery.
I believe the deposition that was noticed is now off calendar. It can be reset after, we respond to the current set of
discovery.” Martin Decl. | 9, Ex. F. In the eyes of Defense counsel, delaying responses to written discovery also means
delaying the Trustee’s deposition.
PLAINTIFF'S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF'S MOTION
TO COMPEL FURTHER RESPONSES TO DISCOVERY AND REQUESTS FOR MONETARY SANCTIONS
-8-Rules of Court, Rule 3.1348(a) states: “The court may award sanctions under the Discovery
Act in favor of a party who files a motion to compel discovery. ..[if] the requested discovery was
provided to the moving party after the motion was filed.” Thus, a motion to compel is not moot even
when the opposing party provides untimely responses before the hearing. Sinaiko Healthcare
Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App. 4th 390, 408-409. The
reasoning behind the rules and case law is clear; a motion to compel is not moot because courts can
still impose sanctions against the party whose conduct necessitated the motion in the first place. This
is designed to reimburse the moving party for having to spend resources, including time and costs, in
unnecessary motions to compel. As such, even if the Trustee provides verifications and substantive
responses prior to the hearing, this motion is not moot, as the Court can and should still award
monetary sanctions to compensate her for the attorneys’ fees and costs incurred in having to bring
this motion, and to deter similar discovery misconduct and gamesmanship in the future. Thus,
Plaintiff requests sanctions against the Trustee and her counsel at Murchison & Cummings in the
amount of $6,987.50, which consists of the amount of attorney's fees and costs incurred in bringing
this necessary motion to compel. Martin Decl. § 20. If the amount of the requested sanctions seems
high, we respectfully direct the Court’s attention to the 236 page separate statement filed in support
of this Motion.
VI. CONCLUSION.
Based on the foregoing, Plaintiff requests that this motion be granted and that sanctions be
imposed in the amount of $6,987.50.
Date: October 15, 2015 LAW OFFICES OF BENNY MARTIN
By:
Benny Martin,
Counsel for Plaintiff Phillip Garcia
PLAINTIFF'S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF'S MOTION
TO COMPEL FURTHER RESPONSES TO DISCOVERY AND REQUESTS FOR MONETARY SANCTIONS
-9-
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LAW OFFICES OF BENNY MARTIN ELECTRONICALLY Benjamin Martin (SBN 257452) FILED 195 41st Street Supertor Court of California, P.O. Box 11120 County of San Frencisco Oakland, CA 94611 Phone: (510) 227-4406 40/16/2015, Email: knowyourightsinsf@ gmail.com BY:CAROL BALISTRERI Deputy Clerk Attorneys for Plaintiff Phillip Garcia SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN FRANCISCO UNLIMITED JURISDICTION PHILLIP GARCIA, an individual, } Case No. CGC-14-538560 Plaintiff, } PLAINTIFF PHILLIP GARCIA’S ) MEMORANDUM OF POINTS AND vs. ) AUTHORITIES IN SUPPORT OF ) PLAINTIFF'S MOTION TO COMPEL CARRIE WILSON, in her capacity as trustee of ) FURTHER RESPONSES TO THE WILSON FAMILY TRUST, SHAUN ) DISCOVERY AND REQUESTS FOR MARKHAM, an individual, ERIKA ) MONETARY SANCTIONS MARKHAM, an individual, and ANGELO ) WILSON, an individual, and DOES 1-20. ) } Date: November 9, 2015 ) Time: 9:30 a.m. ) ) ) Defendants. Dept: 501 STATEMENT OF ISSUES 1) Without moving and showing good cause for an extension, is an 85-year-old Defendant Trustee excused from responding to written discovery when her counsel objects? 2) Is it a misuse of discovery when the Trust’s lawyer cuts and pastes the same boilerplate objections into more than 100 discovery requests for the admitted purpose of delaying discovery? i PLAINTIFF'S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF'S MOTION TO COMPEL FURTHER RESPONSES TO DISCOVERY AND REQUESTS FOR MONETARY SANCTIONS -1-I. URGENCY SURROUNDING THE TRUST’S DISCOVERY RESPONSES. Obtaining the Trust’s discovery responses carries a heightened level of urgency for four (4) reasons. First, the Trustee file a motion for summary adjudication (“MSA”), the hearing date for which is set for December 7, 2015. The Trust’s failure to properly respond to written discovery, or sit for a deposition, prejudices Plaintiff's ability to prepare his opposition thereto, due November 16, 2015. Second, after the Trustee evaded service of process for almost one (1) year, Plaintiff Garcia incurred thousands of dollars serving her by publication. Plaintiff Garcia has been waiting for more than sixteen (16) months to begin discovery. Third, Ms. Wilson’s health problems, and advanced age calls for expedited procedures under CCP § 36. Fourth, on October 9, 2015, an OSC re: dismissal and sanctions was issue by this Court because Plaintiff Garcia has been unable to serve Defendants Shawn Markham and Erika Markham. The outstanding discovery requests seek information and documents on the location of Shawn Markham and Erika Markham.' II. PROCEDURAL POSTURE. a. The Pleadings and Parties. Defendant Angelo Wilson was served with Plaintiffs original Complaint on April 30, 2014, and the First Amended Complaint (“FAC”) on July 31, 2014. Declaration of Plaintiff’s Counsel Benny Martin in Support of Motion to Compel (“Martin Decl.”) § 2. All Defendants paid their individual first appearance fees on May 30, 2014. Defendant Angelo Wilson filed his original on November 24, 2014, and his First Amended Answer on February 2, 2015. Defendant Angelo Wilson filed a Notice of Stay in connection to a bankruptcy filing on April 30, 2015, and then continued to participate in this litigation by executing an October 2015 declaration in support of the Trustee’s motion for summary adjudication.’ Martin Decl. § 3. Plaintiff obtained an order to serve the Trustee via publication on May 14, 2015, and the Trustee filed her Answer on September 29, 2015. * Counsel for Shawn Markham and Erika Markham have refused to accept service of process on their behalf. * In her October 7, 2015, filing, “Notice of Lodgment” of evidence in support of the Trustee’s October 7, 2015 MSA, Mr. Angelo Wilson filed a declaration. Martin Decl. {| 4, Ex. A. PLAINTIFF'S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF'S MOTION TO COMPEL FURTHER RESPONSES TO DISCOVERY AND REQUESTS FOR MONETARY SANCTIONS -2-Defendants Shawn Markham and Erika Markham have not been served because their location is unknown to Plaintiff. On October 9, 2015, the Court set an OSC re: dismissal or sanctions for failing to perfect service thereon. Martin Decl. 4 5, Ex. B. b. Motions Pending. Defendant Trust, and Plaintiff Garcia filed cross MSAs on the FAC’s Seventh Cause of Action. Through counsel, the parties stipulated to have their MSAs heard concurrently, on shortened time, with oppositions due November 16, 2015. The stipulation was filed with the Court on September 30, 2015. Martin Decl. § 6, Ex. C. The outstanding written discovery pertains directly to the issues underlying Plaintiff's Seventh Cause of Action, i.e. agency and authority. Il. STATEMENT OF FACTS. a. Discovery Propounded and Objections Served. * On August 18, 2015, Plaintiff served his Form Interrogatories, Set One; Special Interrogatories, Set One; Requests for Production of Documents, Set One; Request for Admissions Set One; and a Notice of Deposition for October 20, 2015 in Dublin Georgia. Martin Decl. § 7, Ex. D. * On September 22, 2015, Defendant responded, consisting entirely of objections. Martin Decl. § 8, Ex. E. b. The Meet and Confer Process. * On September 11,2015, Defense counsel wrote to Plaintiffs counsel: “Based on your written discovery. I believe the deposition that was noticed is now off calendar. It can be reset after, we respond to the current set of discovery.” Martin Decl. § 9, Ex. F. * On September 11, 2015, Defense counsel transmitted a letter from Dr. Crystal Brown stating that due to degenerative disc disease, osteoporosis, and osteoarthritis, Ms. Wilson could not travel prolonged distances. Martin Decl. § 10, Ex. G. * On September 15,2015, Defense counsel wrote: “I have also spoken with Ms. Wilson's family recently about responding to the outstanding discovery. I am told that she has taken a turn for the worse and is not able to respond to discovery at this time. I will endeavor to obtain more information regarding her health.” Martin Decl. § 11, Ex. H. * On September 16, 2015, Plaintiff's counsel wrote: “Regarding discovery, and Ms. Wilson’s health, please keeping in mind that we are suing the trust, not Ms. Wilson. If the Wilsons insist PLAINTIFF'S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF'S MOTION TO COMPEL FURTHER RESPONSES TO DISCOVERY AND REQUESTS FOR MONETARY SANCTIONS -3-on keeping Ms. Wilson as a trustee through her health difficulties, there is not much anyone can do. Martin Decl. ¥ 12, Ex. 1. On September 16, 2015, Defense counsel wrote: “Ms. Wilson has a detached Retina and will be undergoing surgery at the end of this month. | will get a note from her doctor concerning her condition. She will not be able to attend a deposition until after such time as her vision has recovered. In addition, she recently fell and has a hip injury. I believe she is taking pain medication and is not in any condition to respond to discovery at this time.” Martin Decl. § 13, Ex. J. On September 16, 2015, Plaintiff's counsel wrote: “So I offer you this: I will grant you a one- month extension on the Trust's outstanding discovery responses if under the following conditions: 1) You immediately provide Ms. Wilson's home address so that I can arrange the closest possible deposition center. 2) You respond to all outstanding discovery together, no later than October 24, 2105, with verification and responsive documents, without boilerplate objections. 3) You accept served of process on behalf of the non-appearing Defendants, Erika Markham and Shawn Markham.” Martin Decl. § 14, Ex. K. On September 16, 2015, Defense counsel wrote: “Well, of course, you know I cannot agree to your condi6ons. So, since I will not be able to provide verifications or documents at this time, I will provide objections. (Emphasis added) Martin Decl. § 15, Ex. L. On October 1, 2015, Plaintiff’s counsel met and conferred on the boilerplate and health-based objections as to the Trust’s Responses to First Set for Form Interrogatories; Responses to Requests for Admission; Responses. Martin Decl. § 16, Ex. M. to First Set of Special Interrogatories; Responses to Request for Production of Documents On October 1, 2015, Defense counsel wrote: “Ms. Wilson just had surgery last week. As soon as she recovers, we will provide responses to the discovery. I do not have a firm date as to when that will occur.” Martin Decl. § 16, Ex. N. On October 9, 2015, Plaintiff's counsel wrote: “Regarding outstanding written discovery, please let me know when further responses will be provided. In the event you do not let me know when further responses will be provided by October 14, 2015, I will be forced to move to compel further responses thereto.” Martin Decl. § 17, Ex. O. PLAINTIFF'S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF'S MOTION TO COMPEL FURTHER RESPONSES TO DISCOVERY AND REQUESTS FOR MONETARY SANCTIONS -4-* On October 14,2015, Defense counsel wrote: “Since, there is no real urgency regarding the case, it is, after all, not at issue. It would be far easier to move the dates for the Motions for Summary Adjudications to be heard to January or February.” Martin Decl. § 18, Ex. P. This motion follows. IV. RELEVANT LAW ON DISCOVERY. The Discovery Act provides for discovery “regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action . . . if the matter either is itself admissible in evidence or appears to be reasonably calculated to lead to the discovery of admissible evidence.” CCP § 2017.010. The purpose of discovery is to take the “game” element out of a trial and allow both parties to obtain the necessary evidence to evaluate and resolve the dispute. Greyhound Corp. v. Superior Court (1961) 56 Cal. 2d 355, 376. California courts have been broad-minded in determining whether discovery is reasonably calculated to lead to admissible evidence. The party seeking discovery is entitled to substantial leeway. California's liberal approach to permissible discovery generally has led the courts to resolve any doubt in favor of permitting discovery. Pacific Tel. & Tel. Co. v. Superior Court (1970) 2 Cal.3d 161, 172-73. In doing so, the Courts have taken the view if an error is made in ruling on a discovery motion, it is better that it be made in favor of granting discovery of the nondiscoverable rather than denying discovery of information vital to preparation or presentation of the party's case or to efficacious settlement of the dispute. 2 Hogan, Modern Cal. Discovery (4th ed. 1988) § 11.2, p. 11; Greyhound Corp., 56 Cal.2d 355, 376. Vv. ARGUMENT. a. Defendant Trustee Was Required to Move the Court and Demonstrate Good Cause to Extend the Time to Respond to Written Discovery. “Within 30 days after service of interrogatories, the party to whom the interrogatories are propounded shall serve the original of the response to them on the propounding party...unless on motion of the responding party the court has extended the time for response.” CCP § 2030.260(a). According to the Rutter Group: (1) [8:1025] Court may shorten or extend time: On motion of the propounding party, the court may shorten the time for response; and conversely, on motion of the responding party, it may extend the time. [CCP § 2030.260(a)] PLAINTIFF'S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF'S MOTION TO COMPEL FURTHER RESPONSES TO DISCOVERY AND REQUESTS FOR MONETARY SANCTIONS -5-(a) [8:1026] Noticed motion required: In either event a “motion” is required—apparently meaning a formal, noticed motion. (Compare: The court may grant ex parte relief, however, limiting the parties to be served with copies of the response; see §8:1115.) The Rutter Group, California Practice Guide: Civil Procedure Before Trial, Cal. Prac. Guide Civ. Pro. Before Trial Ch. 8F-5, §8:1025. The same procedure is required for responses to requests for admission’ [CCP § 2033.250], and document requests. CCP § 2031.260.' Thus, a noticed motion was mandatory to extend the time to respond to written discovery. This is because, with a noticed motion, the Court decides whether good cause exists for an extension. When Defendant Trust took an extension without so moving, it usurped this good cause finding. In this case, the only medical documentation pertaining to the affect of the Trustee’s health on participating in discovery is a letter dated September 15, 201, speaking only to the Trustee’s limited mobility. Martin Decl. § 10, Ex. G. Defendant Trust was required to demonstrate to the Court how this health issue prevented responses to written discovery. Instead, frivolous objections were provided. b. Defendant Has the Burden of Proving the Validity of Her Objections. The burden is on the party raising objections thereto to show that the objections are valid. Coy v. Superior Court (1962) 58 Cal. 2d 210, 220-221. Asserting frivolous objections to proper discovery, is an abuse of the discovery process. CCP §§ 2023.010, and 030.290; Korea Data Systems Co., Ltd, v. Sup. Ct. (1997) 51 Cal. App. 4th 1513, 1416 (objecting party subject to sanctions for “boilerplate” objections). Every form interrogatory was responded to with cut and pasted objections. Even Form Interrogatory No. 1.1, pertaining to the identity of persons that assisted in preparing the responses was responded to with boilerplate objections. So too was Form Interrogatory No. 14.1, pertaining to legal contention that calls for a lawyer’s response was responded to with boilerplate objections. Lawyers and parties respond to written discovery pertaining to legal matters in the case. Rifkind v. Sup.Ct. (Good) (1994) 22 Cal.App. 4th 1255, 1259. * In this regard, the Rutter Group teaches: “An extension apparently cannot be granted ex parte. A noticed motion is required for this purpose.” The Rutter Group, California Practice Guide: Civil Procedure Before Trial, Cal. Prac. Guide Civ. Pro. Before Trial Ch. 8F-5, 48-1310. “In this regard, the Rutter Group teaches: “a noticed motion is required. The Rutter Group, California Practice Guide: Civil Procedure Before Trial, Cal. Prac. Guide Civ. Pro. Before Trial Ch. 8F-5, {| 8:1461.1. PLAINTIFF'S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF'S MOTION TO COMPEL FURTHER RESPONSES TO DISCOVERY AND REQUESTS FOR MONETARY SANCTIONS -6-Defendant’s lawyers continue to stand behind the health-based objection, that because “Responding Party is an 85 year old woman who requires surgery,” there is no need to conduct an reasonable inquiry from other sources such as prior counsel (Mr. Raifsnider) the other 3 Defendants Defendant’s lawyers represent (i.e. Angelo Wilson, despite the protection of the automatic bankruptcy stay, continues to participate in this matter as he executed a declaration in support of Ms. Wilson’s motion for summary adjudication in October 2015, Martin Decl. § 4, Ex. A. ), or from insurance policies, witnesses interviewed, statements obtained, inspections performed, surveillance conducted, or the thousands of documents created and produced in the underlying UD action. The plain language of C.C.P. § 2030.220 indicates Murchison & Cummings must make a reasonable inquiry from these sources, at minimum. Additionally, if Ms. Wilson is physically or mentally incapable of carrying out her Trustee duties, why has a new trustee not bee appointed? Plaintiffs counsel has consistently emphasized: “Regarding discovery, and Ms. Wilson’s health, please keeping in mind that we are suing the trust, not Ms. Wilson. If the Wilsons insist on keeping Ms. Wilson as a trustee through her health difficulties, there is not much anyone can do.” Martin Decl. § 12, Ex. 1. c. Plaintiff Satisfied His Meet and Confer Obligations. As required by CCP §§ 2033.290(b)(2), 2030.300(b)(2), 2031.310(b)(2), and 2016.040, Plaintiff Garcia attempted to resolve this matter informally in a good faith “meet and confer” effort. Plaintiff raised the issue of Defendant Trust’s wholly inadequate and improper responses, and Defendant Trust, as set forth above, refused to provide substantive responses Plaintiff has been unable to informally resolve this matter and is left with no choice but to seek relief from this Court. d. Plaintiff is Entitled to Monetary Sanctions. The court “shall” impose monetary sanctions against the losing party and/or counsel on a motion to compel compliance with written discovery unless it finds the losing party “acted with substantial justification” or other circumstances make imposition of sanctions “unjust.” The losing party may be ordered to pay the reasonable expenses, including attorney fees, incurred by the party prevailing on the motion, CCP § 2023.030(a). The same is true for written interrogatories [CCP § 2030.290], document demands [CCP §2031.320(b)] and requests for admission. CCP § 2033.290(d). Here, there was no substantial justification for failing to respond to the most basic PLAINTIFF'S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF'S MOTION TO COMPEL FURTHER RESPONSES TO DISCOVERY AND REQUESTS FOR MONETARY SANCTIONS -7-discovery. Every discovery response was a mere cut and paste job, without entirely meritless objections. Most prominent among them is Form Interrogatory No. 1.1, pertaining to the identity of persons that assisted in preparing the responses was responded to with boilerplate objections, and Form Interrogatory No. 14.1, pertaining to legal contentions. Responses to these interrogatories calls for a lawyer’s response, not the Trustee’s. The boilerplate and health-based objections were entirely without merit. Please take particular note that delay was the stated plan of Defendants’ lawyers in responding to discovery. Plaintiff's counsel would not provide an extension to respond to discovery because 1) there has already been significant delay in perfecting service of process on the Trustee via publication; 2) the Trustee’s deposition cannot go forward until after written discovery is complete; 3) the Trustee has information pertaining to the location of Defendants Shawn Markham and Erika Markham. When Plaintiffs counsel would not provide an extension, Defendants’ counsel responded: I will provide objections.” Martin Decl. 15, Ex. L? The content of the propounded written discovery did not matter —Defense counsel was intent on objecting regardless for the expressed purpose of delay. This is exactly the type of conduct that warrants sanctions. Korea Data Systems Co., Ltd, v. Sup. Ct. (1997) 51 Cal. App. 4th 1513, 1416 (making frivolous boilerplate objections for the exclusive purpose of delay is sanctionable as a misuse of the discovery process). These sanctions include “the reasonable expenses, including attorney's fees” incurred as a result of wrongful conduct. CCP § 2023.030. The applicable code provisions governing a failure to adequately respond to discovery dictates “[t]he court shall impose a monetary sanction... against any party, person, or attorney who unsuccessfully opposes a motion to compel a further response to [discovery], unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.” CCP § 2030.300 (interrogatories); CCP § 2031.310(h) (demands for production); CCP § 2033.290(d) (requests for admission). * Incredibly, Defense counsel also attempted to derail the Trustee’s deposition, stating, “Based on your written discovery. I believe the deposition that was noticed is now off calendar. It can be reset after, we respond to the current set of discovery.” Martin Decl. | 9, Ex. F. In the eyes of Defense counsel, delaying responses to written discovery also means delaying the Trustee’s deposition. PLAINTIFF'S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF'S MOTION TO COMPEL FURTHER RESPONSES TO DISCOVERY AND REQUESTS FOR MONETARY SANCTIONS -8-Rules of Court, Rule 3.1348(a) states: “The court may award sanctions under the Discovery Act in favor of a party who files a motion to compel discovery. ..[if] the requested discovery was provided to the moving party after the motion was filed.” Thus, a motion to compel is not moot even when the opposing party provides untimely responses before the hearing. Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App. 4th 390, 408-409. The reasoning behind the rules and case law is clear; a motion to compel is not moot because courts can still impose sanctions against the party whose conduct necessitated the motion in the first place. This is designed to reimburse the moving party for having to spend resources, including time and costs, in unnecessary motions to compel. As such, even if the Trustee provides verifications and substantive responses prior to the hearing, this motion is not moot, as the Court can and should still award monetary sanctions to compensate her for the attorneys’ fees and costs incurred in having to bring this motion, and to deter similar discovery misconduct and gamesmanship in the future. Thus, Plaintiff requests sanctions against the Trustee and her counsel at Murchison & Cummings in the amount of $6,987.50, which consists of the amount of attorney's fees and costs incurred in bringing this necessary motion to compel. Martin Decl. § 20. If the amount of the requested sanctions seems high, we respectfully direct the Court’s attention to the 236 page separate statement filed in support of this Motion. VI. CONCLUSION. Based on the foregoing, Plaintiff requests that this motion be granted and that sanctions be imposed in the amount of $6,987.50. Date: October 15, 2015 LAW OFFICES OF BENNY MARTIN By: Benny Martin, Counsel for Plaintiff Phillip Garcia PLAINTIFF'S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF'S MOTION TO COMPEL FURTHER RESPONSES TO DISCOVERY AND REQUESTS FOR MONETARY SANCTIONS -9-