Document for Abel vs McCutchan, JR

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                                Richard Abel

707 Hahman Drive, No. 9301
Santa Rosa, CA 95405
Telephone: (707) 340-3894

Plaintiff, In pro per

SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF SONOMA

RICHARD ABEL, an individual; Case Number: SCV-263456
Plaintiff PLAINTIFF'S REPLY TO DEFENDANT
> NANSI IDA WEIL'S OPPOSITION TO
v. PLAINTIFF'S MOTION TO DEEM
REQUESTS FOR ADMISSION
B. EDWARD McCUTCHAN JR. an ADMITTED, TO COMPEL RESPONSES,

individual; SUNDERLAND/McCUTCHAN, | “NP FOR MONETARY SANCTIONS

LLP, a general partnership; and DOES 1

through 100, inclusive; Date: December 5, 2022
Time: 1:30 p.m.
Defendants. Dept: 10 - Hon. Christopher Honigsberg

Trial Date: March 10, 2023

TO THE COURT, ALL PARTIES, AND THEIR ATTORNEYS OF RECORD :

Plaintiff Richard Abel ("Plaintiff") hereby submits this reply to the opposition by
defendant Nansi Ida Weil ("Weil" or "Responding Party" herein) to Plaintiff's Motion to Deem
the Requests for Admissions Admitted, to Compel Responses, and for monetary sanctions,
against defendant Nansi Ida Weil, for her failure to respond to discovery in good faith and in full
compliance with the Discovery Act.

As of the date of this reply, defendant Weil has still not provided any response at all to
Plaintiff's Set One of Requests for Admissions, Numbers | to 25, and Form Interrogatories, Set

One, that were served on May 1, 2022 to Ms. Weil.

PLAINTIFF'S REPLY TO DEFENDANT NANSI WEIL'S OPPOSITION TO MOTION TO COMPEL
1I.
LEGAL STANDARD

A ion to Deem Admissions Admitted

Failure to timely respond to Requests for Admission results in a waiver of all objections
to the requests. (Code Civ. Proc. §2033.280, subd. (a).) The statutory language leaves no room
for discretion. (Tobin v. Oris (1992) 3 Cal-App.4th 814, 828.) “The law governing the
consequences for failing to respond to requests for admission may be the most unforgiving in
civil procedure. There is no relief under section 473. The defaulting party is limited to the
remedies available in [Code of Civil Procedure Section 2033.280]....” (Demyer v. Costa Mesa
Mobile Home Estates (1995) 36 Cal.App.4th 393, 394-395, disapproved on other grounds in
Wilcox v. Birtwhistle (1999) 21 Cal.4th 973, 983, fin. 12.)

The court may relieve the party who fails to file a timely response if, before entry of the
order deeming the requested matters admitted, the party in default: 1) moves for relief from
waiver and shows that the failure to serve a timely response was due to “mistake, inadvertence or|
excusable neglect;” and 2) serves a response in “substantial compliance” with Code of Civil
Procedure Section 2033.220 (See Code Civ. Proc. §2033.280, subds. (a)-(c); See Brigante v.
Huang (1993) 20 Cal.App.4th 1569, 1584, disapproved on other grounds in Wilcox v. Birtwhistle
(1999) 21 Cal.4th 973, 983, fn. 12.) “If the party manages to serve its responses before the
hearing, the court has no discretion but to deny the motion . . . Everything, in short, depends on
submitting responses prior to the hearing.” (Demyer v. Costa Mesa Mobile Homes Estates (1995)
36 Cal. App. 4th 393, 395-396.)

CCP §2033.280 does not contain a requirement that the moving party meet and confer
with the party who failed to timely respond to requests for admission. In addition, no separate
statement is required where there has been no response.

(1) Analysis

On May 1, 2022, Plaintiff served by mail the first set of requests for admission on

Defendant Weil. (See, Abel Decl. 95.) At the time Plaintiff filed the instant motion on June 7,

2022, Plaintiff had not received any responses from Ms. Weil. (See, Abel Decl. 6.)

PLAINTIFF'S REPLY TO DEFENDANT NANSI WEIL’S OPPOSITION TO MOTION TO COMPEL
2In opposition, defendant Weil relies on her motion to dismiss as her excuse for not
participating in discovery. (See, Weil Opp. 2:14.) Weil's motion to dismiss was originally set
for hearing on June 8, 2022, but was continued by the Court.

A pending demurrer or motion to dismiss is not grounds for objection. California law
permits discovery to proceed while the pleadings develop. CCP §2031.020(b); Budget Finance
Plan v. Superior Court (1973) 34 Cal.App. 3d 794, 797-798. The case needs to move forward,
and Plaintiff has been prejudiced by Ms. Weil's failure to respond.

Since defendant Weil did not comply by responding to the Requests for Admission, and
there is no evidence that she has either requested relief from her failure to respond, nor
submitted responses in "substantial compliance" before the hearing, this motion must be granted.

Code of Civil Procedure section 2033.280, subdivision (c), provides that “[i]t is
mandatory that the court impose a monetary sanction under Chapter 7 (commencing with Section]
2023.010) upon the party or attorney, or both, whose failure to serve a timely response to
requests for admission necessitated this motion.” Plaintiff requests sanctions in the amount of
$129.44 to reimburse Plaintiff for his reasonable costs to bring this motion. (See, Abel Decl. 48)

B. Motion for Responses to the Form Interrogatories:

Defendant Weil had ample time to respond to the discovery propounded by Plaintiff,
and has not done so. Failing to respond to discovery within the 30-day time limit waives
objections to the discovery, including claims of privilege and “work product” protection.
(Code Civ. Proc. §§ 2030.290, subd. (a), 2031.300, subd. (a); see Leach v. Superior Court (1980)
111 Cal.App.3d 902, 905-906.)

(1) Analysis

On May 1, 2022, Plaintiff served set one of the form interrogatories to defendant Weil.

(See, Abel Decl. 95.) At the time Plaintiff filed the instant motion on June 7, 2022, Plaintiff had
not received responses from Weil. (See, Abel Decl. 96.)

Plaintiff was not required to give defendant Weil additional time to respond, and Weil
has served no responses in "substantial compliance" before the hearing. Therefore the Court

must grant Plaintiff's motion for a response, and order defendant Weil to provide code-complaint

PLAINTIFF'S REPLY TO DEFENDANT NANSI WEIL'S OPPOSITION TO MOTION TO COMPEL
327

28

responses to the form interrogatories without objections.

Sanctions are mandatory against the party who loses the motion to compel responses to
discovery unless the court finds that the party acted “with substantial justification” or other
circumstances that would render sanctions “unjust.” (Code Civ. Proc., § 2030.290, subd. (c)
[Interrogatories].)

Plaintiff requests sanctions in the amount of $129.44 to reimburse Plaintiff for his
reasonable costs to bring this motion to obtain Ms. Weil's compliance. (See, Abel Decl. 48).

C. Edward McCutchan's Misguided Declaration in Opposition

Edward McCutchan does not represent Nansi Weil in this action. On November 18, 2022}
McCutchan filed a "Supplemental Declaration of Edward McCutchan in Opposition to Richard
Abel's Motion to Deem Facts Admitted, to Compel Responses, and For Monetary Sanctions
Against Nansi Weil." Plaintiff has filed objections to this declaration in a separate document.

Exhibits "1" and "2" in McCutchan's declaration pertain only to Nansi Weil's responses to}
Set Two of the Requests for Admission, Numbers 26 to 35, and Set Two of the Form
Interrogatories Nansi Weil served on October 7, 2022. Set Two is not at issue today.

At issue here on December 5, 2022, is only Nansi Weil's non-response to Set One
Requests for Admission, Numbers | to 25; and Set One of the Form Interrogatories.

IL.
CONCLUSION

Defendant Weil is a party to this action, and has a duty to participate in discovery.
Defendant Weil failed to provide any responses to both the Requests for Admission, Set One,
and the Form Interrogatories, Set One.

For the foregoing reasons, the Court must GRANT this motion.

November 20, 2022 (alow : ( 0

Richard Abel, Plaintiff

PLAINTIFF'S REPLY TO DEFENDANT NANSI WEIL'S OPPOSITION TO MOTION TO COMPEL.
4POS-030

ATTORNEY OR PARTY WITHOUT ATTORNEY (Name, State Bar number, and address). FOR COURT USE ONLY
Richard Abel

707 Hahman Drive, No. 9301
Santa Rosa, CA 95405

TELEPHONE NO: (707) 340-3894 FAX NO. (Optiona
E-MAIL ADDRESS (Optional)
ATTORNEY FOR (Name): Plaintiff pro per

SUPERIOR COURT OF CALIFORNIA, COUNTY OF SONOMA
street aporess:600 Administration Drive, Room 107-J
mains aopress:600 Administration Drive, Room 107-J
city ano zip cove: Santa Rosa, CA 95404

sranct Name:Civil Division - Dept. 10

PETITIONER/PLAINTIFF: Abel

RESPONDENT/DEFENDANT: McCutchan, Jr. et.al.

CASE NUMBER;

PROOF OF SERVICE BY FIRST-CLASS MAIL—CIVIL SCV-263456

(Do not use this Proof of Service to show service of a Summons and Complaint.)

1. 1am over 18 years of age and not a party to this action. | am a resident of or employed in the county where the mailing
took place.

2. My residence or business address is:

007-B West College Avenue, PMB 532, Santa Rosa, CA 95404

3. On (date):November 22, 2022 | mailed from (city and state): Santa Rosa, California

the following documents (specify):

PLAINTIFF'S REPLY TO DEFENDANT NANSI IDA WEIL'S OPPOSITION TO PLAINTIFF'S
MOTION TO DEEM REQUESTS FOR ADMISSION ADMITTED, TO COMPEL RESPONSES, AND
FOR MONETARY SANCTIONS

The documents are listed in the Attachment to Proof of Service by First-Class Mail—Civil (Documents Served)

(form POS-030(D)).

4, |served the documents by enclosing them in an envelope and (check one):

a. depositing the sealed envelope with the United States Postal Service with the postage fully prepaid.

b. placing the envelope for collection and mailing following our ordinary business practices. | am readily familiar with this
business's practice for collecting and processing correspondence for mailing. On the same day that correspondence is
placed for collection and mailing, it is deposited in the ordinary course of business with the United States Postal Service in
a sealed envelope with postage fully prepaid.

5. The envelope was addressed and mailed as follows:
a. Name of person served: see below
b. Address of person served:

B.Edward McCutchan, Jr. Joseph Picchi
Sunderland/ McCutchan, Inc. only by email: jpicchi@glattys.com
083 Vine Street, PMB 907 Nansi Ida Weil
Healdsburg, CA 95448 only by email: nansiweil@comcast.net
The name and address of each person to whom | mailed the documents is listed in the Attachment to Proof of Service

by First-Class Mail—Civil (Persons Served) (POS-030(P)).
| declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct.

Date: November 22, 2022

Henry Crigler >
(TYPE OR PRINT NAME OF PERSON COMPLETING THIS FORM) fF PERSOIY{OMPLETING THIS FORM)
Does Perec to Onna ee PROOF OF SERVICE BY FIRST-CLASS MAIL. Code of Givi Procedure, §§ 1013, 10138

Judicial Council of California

POS-030 [New January 1, 2005] (Proof of Service) wwvw.courtinfo.ca.gov