Preview
Richard Abel
1
2222 Cleveland Avenue, Apt. #1002
2 Santa Rosa, CA 95403
Telephone: (707) 340-3894
3
4 Plaintiff, in pro per
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6
7
8
SUPERIOR COURT OF THE STATE OF CALIFORNIA
9
FOR THE COUNTY OF SONOMA
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11 RICHARD ABEL, an individual; Case Number: SCV-263456
12 PLAINTIFF'S OPPOSITION TO
Plaintiff; DEFENDANT JIM NORD'S MOTION TO
13 v. COMPEL PLAINTIFF RICHARD ABEL'S
RESPONSES; MEMORANDUM OF
14 B. EDWARD McCUTCHAN JR. an POINTS AND AUTHORITIES
15 individual; SUNDERLAND/McCUTCHAN,
LLP, a general partnership; and DOES 1
Date: March 8, 2023
16 through 100, inclusive;
Time: 3:00 p.m.
17 Dept: 18
Defendants.
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19
TO THE COURT, ALL PARTIES, AND THEIR ATTORNEYS OF RECORD:
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Plaintiff Richard Abel ("Plaintiff” herein) hereby submits this opposition (“Opposition”)
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to the motion of defendant Jim Nord (“Nord” herein) to compel responses of Plaintiff to Nord's
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form interrogatories (FIs”); special interrogatories (“SIs”); and requests for admission (“RFAs”).
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Nord's notice of motion made no reference to further responses to requests for production of
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documents (“RPDs”). (See, Notice of Motion, p. 1:26-27.)
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This Opposition is based on this Memorandum of Points and Authorities, Plaintiff's
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Separate Statement, and Declaration of Plaintiff Richard Abel in support thereof. Plaintiff has
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sent a copy of this opposition to the discovery referee appointed by the Court.
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OPPOSITION TO DEFENDANT NORD'S MOTION TO COMPEL
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I.
1
INTRODUCTION
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Plaintiff timely responded to Nord's discovery request with code-compliant responses.
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Plaintiff also timely served amended responses in order to avoid another discovery dispute.
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Nord's lawyer, Edward McCutchan ("McCutchan") filed this motion prematurely before
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he had completed the meet and confer process with Plaintiff. McCutchan granted Plaintiff an
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extension to September 20, 2022 to serve amended responses. Did McCutchan wait until the
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deadline he had agreed to? No! Instead of waiting for the deadline, McCutchan filed this instant
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motion on the day before, September 19, 2022.
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II.
10
FACTS
11 On July 8, 2022, McCutchan served Plaintiff with Nord's discovery. (See, McCutchan
12 Decl. ¶¶ 2, 3, 4, 5).
13 On August 8, 2022, Plaintiff served responses to Nord's RFAs, FIs, SIs, and RPDs. (See,
14 McCutchan Decl. ¶¶ 12, 13, 14, 15).
15 On September 8, 2022, McCutchan sent his first meet and confer letter to Plaintiff. (See,
16 McCutchan Decl. ¶ 16).
17
On September 13, 2022, Plaintiff called McCutchan and requested more time to serve
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amended responses to Nord's discovery. McCutchan granted an extension to September 20,
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2022. (See, McCutchan Decl. ¶ 17; Abel Decl. ¶ 5).
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On September 14, 2022, Plaintiff sent an email to McCutchan to confirm McCutchan's
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agreement to extend the deadline to September 20, 2022. (See, McCutchan Decl. ¶ 17, Ex. 10).
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On September 14, 2022, McCutchan confirmed by email that he agreed to extend the
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deadline for amended responses to September 20, 2022. (See, McCutchan Decl. Ex. 10; Abel
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Decl. ¶ 7).
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On September 14 and 15, 2022, Plaintiff sent emails to McCutchan seeking clarification
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of what his perceived “deficiencies” are in Plaintiff's original responses. Plaintiff also requested
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access to the original of each document, as required pursuant to CCP section 2033.060(g). (See,
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McCutchan Decl. ¶ 19, Ex. 10; Abel Decl. ¶ 8).
OPPOSITION TO DEFENDANT NORD'S MOTION TO COMPEL
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1 On September 15, 2022, McCutchan responded with an email, but provided no details
2 about his perceived “deficiencies” in Plaintiff's responses, nor did McCutchan provide the
3 original of each document as requested. (McCutchan Decl. ¶ 19, Ex. 10; Abel Decl. ¶¶ 9, 10).
4 On September 18, 2022 (a Sunday), Plaintiff served amended responses to Nord's FIs,
5 RFAs, and RPDs. Since there is no mail pickup on Sundays, it would have been put on a post
6 office truck on Monday and delivered the following day. (See, Abel Decl. ¶ 11, Ex. C, D, E).
7 On September 19, 2022 (a Monday), without waiting for his September 20, 2022 agreed
8 deadline, McCutchan filed this instant motion.
9 On September 29, 2022, McCutchan sent a meet and confer letter regarding Plaintiff's
10 supplemental responses. (See, Abel Decl. ¶ 12, Ex. F).
11 On October 7, 2022, Plaintiff served second amended responses to Nord's FIs and RPD's.
12 (See, Abel Decl. ¶ 13).
13
III.
14 RELEVANT LAW
15 The Discovery Act requires the responding party to undertake a "good faith" obligation to
16 investigate sources reasonably available to him or her in formulating answers to RFAs (See, CCP
17 §2033.220(c); Chodos v. Sup.Ct. (Lowe) (1963) 215 Cal.App.2d 318, 322).
18 But only a "reasonable" effort to find out is required. Thus, for example, a party would
19 not be expected to travel to a foreign country to verify a street address there (or even hire a
20 private investigator to do so). (See, Lindgren v. Sup.Ct. (Lindgren) (1965) 237 Cal.App. 2D 743,
21 746).
22 The duty to make reasonable efforts does not include a duty to search out matters of
23 public record. (See, Bunnell v. Sup.Ct. (California Life Ins. Co.) (1967) 254 Cal.App.2d 720,
24 723-724; see also Alpine Mut. Water Co. v. Sup.Ct. (Susana Knolls Mut. Water Co.) (1968) 259
25 Cal.App. 2d 45, 53 [interrogating party cannot force answering party to search public records to
26 ascertain answers to interrogatories].) Nor is the responding party under a duty to make inquiry
27 from independent witnesses (persons not his or her agents or employees) in order to answer
28 interrogatories. (See, Holguin v. Sup.Ct. (Hoage) (1972) 22 Cal.App. 3d 812, 826.)
OPPOSITION TO DEFENDANT NORD'S MOTION TO COMPEL
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1 When requesting the genuineness of documents, the requesting party must make the
2 originals available for inspection by the party to whom the requests are directed. (See, Code Civ.
3 Proc. §2033.060(g).) Parties are often requested to admit the genuineness of the propounding
4 party's documents and records (whether prepared by the propounding party or someone else.)
5 There is no known authority on this point, but arguably the responding party may properly deny
6 such requests on the ground that he or she has no "reasonable" way of verifying the genuineness
7 of propounding party's records. (quoting, Weil & Brown, CAL. PRAC. GUIDE: CIV PRO.
8 BEFORE TRIAL (The Rutter Group 2021) §8:1344.2.)
9
IV.
10 ARGUMENT
11 A. Plaintiff's Amended Responses to the FIs Are Code-Compliant
12 Plaintiff timely served amended responses to the FIs (“Amended Responses”) to address
13 the claimed “deficiencies” in McCutchan's September 8, 2022 letter. (McCutchan Decl. ¶ 16).
14 These Amended Responses were served on September 18, before the September 20, 2022
15 extended deadline that McCutchan agreed to. (Abel Decl. ¶ 11, Ex. C). McCutchan filed this
16 instant motion on September 19, 2022 without having seen the Amended Responses. (See, Abel
17 Decl. ¶¶ 11, 12). The Amended Responses are not in Nord's separate statement.
18 The Court should review the Amended Responses, instead of what is in Nord's separate
19 statement. The timely served Amended Responses superseded the original responses.
20 Plaintiff also served second amended responses to the FIs on October 7. (Decl. ¶ 13).
21 McCutchan failed to amend his separate statement to include all Amended Responses. Thus
22 Nord's separate statement is not full and complete. The separate statement must be full and
23 complete so that no person is required to review any other document in order to determine the
24 full request and the full response. (CRC, Rule 3.1345(c).) Nord's separate statement failed to
25 address Plaintiff's timely served Amended Responses.
26 The amended responses are code-compliant, and McCutchan now has all the information
27 he wanted. This motion is moot.
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OPPOSITION TO DEFENDANT NORD'S MOTION TO COMPEL
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1 B. Plaintiff's Objections to the Special Interrogatories (“SIs”) Have Merit
2 Code of Civ. Proc. §2030.060 provides:
3
(d) "Each interrogatory shall be full and complete in and of itself. No preface
4 or instructions shall be included with a set of interrogatories unless it has been
approved under Chapter 17 (i.e. the Judicial Council)."
5
6 (e) "Any term specially defined in a set of interrogatories shall be typed with
all letters capitalized wherever that term appears."
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(f) "No specially prepared interrogatory shall contain subparts, or a
compound, conjunctive, or disjunctive."
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10 Nord's SIs are not full and complete in and of themselves. Each SI refers to another
11 document, in violation of CCP §2030.060(d). (See, McCutchan Ex. "3").
12 Each of Nord's SIs require that Plaintiff make an inquiry with a third party witness (e.g.
13 Randall Bailey, Carl E. Barnes, Dale Barnes, etc.). A responding party has no duty to make an
14 inquiry with independent witnesses (persons not his or her agents or employees) in order to
15 answer interrogatories. (See, Holguin v. Sup.Ct. (Hoage) (1972) 22 Cal.App. 3d 812, 826.)
16 Nord failed to capitalized each specially defined term wherever that term appeared in the
17 SIs, (e.g. YOU and YOURS means Plaintiff, his or her agents and anyone else acting on his or
18 her behalf"). This violates CCP §2030.060(e). (See, McCutchan Ex. "3").
19 Each of Nord's SIs are hopelessly compound. Not only do the SIs ask for the date that a
20 third party witness signed the exhibit, the SIs also ask for the names and addresses of all
21 witnesses, and the place where the exhibit was signed. This violates CCP §2030.060(f).
22 According to Weil & Brown, if the SIs were propounded in an improper form, this is a
23 valid objection which the Court should sustain, (See, Weil & Brown, supra. CAL. PRAC.
24 GUIDE: CIV PRO. BEFORE TRIAL §8:1352). Plaintiff's objections that the SIs do not comply
25 with Code of Civ. Proc. §2030.060, are well taken.
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OPPOSITION TO DEFENDANT NORD'S MOTION TO COMPEL
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1 C. Plaintiff's Amended Responses to the RFAs Are Code-Compliant
2 Plaintiff timely served amended responses to the RFAs (“Amended Responses”) on
3 September 18, before the September 20, 2022 extended deadline that McCutchan agreed to.
4 (See, Abel Decl. ¶ 11, Ex. D). McCutchan jumped the gun and filed this motion on September 19
5 before he had seen Plaintiff's amended responses.
6 Plaintiff's Amended Responses are not in Nord's separate statement. Thus Nord's separate
7 statement is not full and complete. The separate statement must be full and complete so that no
8 person is required to review any other document in order to determine the full request and the
9 full response. (CRC, Rule 3.1345(c).) This defect is grounds to deny the motion.
10 (1). The RFAs Do Not Comply with Code of Civ. Proc. §2033.060(g)
11 Code of Civ. Proc. §2033.060(g) requires that the requesting party make the originals of
12 the documents available for inspection by the party to whom the requests are directed.
13 Plaintiff requested access to the original of each document during the meet and confer
14 period. McCutchan refused to provide Plaintiff with access to the original of each document as
15 Plaintiff requested. (See, McCutchan Decl. ¶ 19, Ex. 10; Abel Decl. ¶ 10).
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(2). The RFAs Do Not Comply with Code of Civ. Proc. §2033.060(d)
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Code of Civ. Proc. §2033.060(d) requires that Code of Civ. Proc. §2033.060 requires that
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"Each request for admission shall be full and complete in and of itself."
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Each Nord's RFA's are not full and complete in and of themselves. Each refers to another
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document (an exhibit, which McCutchan refused to allow Plaintiff to see the original).
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D. Plaintiff's Amended Responses to the RPDs Are Code-Compliant
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Plaintiff timely served amended responses to the RPDs (“Amended Responses”) on
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September 18, before the September 20, 2022 extended deadline that McCutchan agreed to.
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(See, Abel Decl. ¶ 11, Ex. E). All of the documents requested were produced on a CD to
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McCutchan by Plaintiff. (See, Abel Decl. ¶ 14).
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Plaintiff's Amended Responses are not in Nord's separate statement. Thus Nord's separate
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statement is not full and complete. The separate statement must be full and complete so that no
OPPOSITION TO DEFENDANT NORD'S MOTION TO COMPEL
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1 person is required to review any other document in order to determine the full request and the
2 full response. (CRC, Rule 3.1345(c).) This defect is grounds to deny the motion.
3 Further, Plaintiff served second amended responses to the RPDs on October 7, 2022.
4 These second amended responses are not in Nord's separate statement either. It is unclear to
5 Plaintiff which document that McCutchan is after, that has not already been produced.
6 (1). Nord's RPDs Are Overbroad
7 Code of Civ. Proc. §2031.030(c)(1) provides that each demand in a set shall be separately
8 set forth, and designate the documents, tangible things, land or other property or electronically
9 stored information by specifically describing each individual item or by reasonably
10 particularizing each category of item.
11 Nord did not specifically describe each individual item. Nord used a shotgun approach
12 without reasonably particularizing each category of item, Overbroad is a valid objection if the
13 request calls for an undue burden such as “shotgun” interrogatories” as they are too general. See
14 CEB, California Civil Discovery Practice (4th ed. 2009) §7.85
15 Without waiving the objections, Plaintiff agreed to produce documents that Plaintiff
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believed were responsive to Nord's overbroad requests. Documents believed to be responsive
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were produced on a CD by Plaintiff and delivered to McCutchan. (See, Abel Decl. ¶ 14).
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E. Nord's Separate Statement is Deficient
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A separate statement is required for a motion to compel further responses to
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interrogatories, as well as to requests for admission. (California Rules of Court (“CRC”), Rule
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3.1345(a)(2).) The separate statement must be full and complete so that no person is required to
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review any other document in order to determine the full request and the full response. (CRC,
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Rule 3.1345(c).) Moreover, if the response to a particular discovery request is dependent on the
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response given to another discovery request, or if the reasons a further response to a particular
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discovery request is deemed necessary are based on the response to some other discovery
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request, the other request and the response to it must be set forth in the separate statement. (CRC,
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Rule 3.1345(c)(5).)
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OPPOSITION TO DEFENDANT NORD'S MOTION TO COMPEL
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1 A trial court may deny a motion to compel on the basis that it is procedurally defective
2 and fails to comply with the California Rules of Court, Rule 3.1345. (Mills v. U.S. Bank (2008)
3 166 Cal.App.4th 871, 892 [trial court did not abuse its discretion in denying plaintiff’s motion to
4 compel discovery, as plaintiff failed to file code-compliant separate statement].
5 Plaintiff's timely filed Amended Responses are not in Nord's separate statement. (Abel
6 Decl. ¶ 11). The separate statement is therefore incomplete.
7 The separate statement does not address Plaintiff's specific objections and responses.
8 Instead Nord uses the separate statement to argue the merits of the case. Except for the FIs,
9 Nord's grounds for the SIs, RFAs, and RPDs are more or less, all the same. (See, e.g. Nord
10 Separate Statement). Plaintiff's Amended Responses render most of the arguments made by
11 Nord in his separate statement moot.
12 F. McCutchan's Request for Sanctions is Not Warranted
13 Plaintiff acted with substantial justification in objecting to the discovery. The SIs do not
14 comply with CCP §2030.060. Plaintiff also timely served Amended Responses to the FIs, the
15 RFAs, and the RPDs before the September 20, 2022 deadline that McCutchan agreed to.
16 In the tentative ruling for another case on February 8, 2023, (SCV-267991 Villa Rosa
17 Homeowners Association v. Cooper) the Court said that the Court "awards a maximum rate of
18 $400 per hour based on the local Sonoma County market." (Abel Decl. ¶ 15). Here McCutchan's
19 request based on $425 exceeds the maximum rate set by the Court.
20 Arguably the average rate, not the maximum rate, should be applied. In the underlying
21 Liebling Action, McCutchan's hourly rate was $250. At that time McCutchan had an office,
22 employed staff lawyers, and had a secretary. (See, Abel Decl. ¶16). McCutchan's business
23 address now is the UPS Store in Healdsburg, and has no secretary. (Id.).
24 There is no evidence submitted that Nord has actually paid McCutchan anything. The
25 real purpose of this instant motion was just to generate more fees for McCutchan.
26 McCutchan's declaration states that he "incurred 3.1 hours." The rest is anticipated and
27 speculative, and has not been incurred. “Responding to the opposition” of 1.8 hours, is the same
28 thing as “drafting Jim Nord's reply to the opposition” of 1.9 hours. (McCutchan Decl. p. 5:5-6).
OPPOSITION TO DEFENDANT NORD'S MOTION TO COMPEL
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1 The Court should deny McCutchan's sanctions request because it would be unjust under the
2 circumstances. McCutchan breached his agreement with Plaintiff over the extended deadline.
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4 G. McCutchan Failed to Meet and Confer in Good Faith
5 The court may impose a monetary sanction against anyone engaging in conduct that is a
6 misuse of the discovery process. (Code Civ. Proc. § 2023.030(a).) “Misuses of the discovery
7 process” include employing a discovery method to cause unwarranted annoyance,
8 embarrassment, or oppression, or undue burden or expense, making a motion to compel
9 without substantial justification, and failing to meet and confer in a “reasonable and good
10 faith” attempt to resolve discovery disputes informally. (Code Civ. Proc. § 2023.010(c), (h)
11 and (i). (emphasis added). A motion to compel further responses must be accompanied by a
12 meet and confer declaration under Code Civ. Proc. § 2016.040.
13 McCutchan sent only one (1) letter. (See, McCutchan ¶16, Ex. 9). Subsequent emails
14 only referred back to that one (1) letter. (See, McCutchan ¶19, Ex. 10).
15 This meet and confer letter sent by McCutchan, does not show "a reasonable and good
16 faith attempt at an informal resolution of each issue presented in the motion" pursuant to Code
17 Civ. Proc. §2016.040. (See, McCutchan Ex. "9"). In general terms, this one (1) letter concluded
18 that Plaintiff's objections were “meritless” without specifically addressing each issue that is now
19 being presented in this motion.
20 The letter sent by McCutchan does not constitute a reasonable and good faith attempt at
21 informal resolution. (See, Obregon v. Superior Court (1998) 67 Cal.App.4th 424, 432.) "[T]he
22 law requires that counsel attempt to talk the matter over, compare their views, consult, and
23 deliberate." (See, Townsend v. Superior Court (1998) 61 Cal.App. 4th 1431-1439.) That did
24 not happen here. (See, Abel Decl. ¶ 17).
25 Here, the papers submitted indicate that McCutchan filed this motion to compel on
26 September 19, 2022 before the September 20, 2022 extended deadline that McCutchan agreed to.
27 McCutchan refused to provide originals of the documents for Plaintiff to inspect. (See, Code Civ.
28 Proc. §2033.060(g).) (See, Abel Decl. ¶ 10).
OPPOSITION TO DEFENDANT NORD'S MOTION TO COMPEL
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Richard Abel 1 2222 Cleveland Avenue, Apt. #1002 2 Santa Rosa, CA 95403 Telephone: (707) 340-3894 3 4 Plaintiff, in pro per 5 6 7 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 FOR THE COUNTY OF SONOMA 10 11 RICHARD ABEL, an individual; Case Number: SCV-263456 12 PLAINTIFF'S OPPOSITION TO Plaintiff; DEFENDANT JIM NORD'S MOTION TO 13 v. COMPEL PLAINTIFF RICHARD ABEL'S RESPONSES; MEMORANDUM OF 14 B. EDWARD McCUTCHAN JR. an POINTS AND AUTHORITIES 15 individual; SUNDERLAND/McCUTCHAN, LLP, a general partnership; and DOES 1 Date: March 8, 2023 16 through 100, inclusive; Time: 3:00 p.m. 17 Dept: 18 Defendants. 18 19 TO THE COURT, ALL PARTIES, AND THEIR ATTORNEYS OF RECORD: 20 Plaintiff Richard Abel ("Plaintiff” herein) hereby submits this opposition (“Opposition”) 21 to the motion of defendant Jim Nord (“Nord” herein) to compel responses of Plaintiff to Nord's 22 form interrogatories (FIs”); special interrogatories (“SIs”); and requests for admission (“RFAs”). 23 Nord's notice of motion made no reference to further responses to requests for production of 24 documents (“RPDs”). (See, Notice of Motion, p. 1:26-27.) 25 This Opposition is based on this Memorandum of Points and Authorities, Plaintiff's 26 Separate Statement, and Declaration of Plaintiff Richard Abel in support thereof. Plaintiff has 27 sent a copy of this opposition to the discovery referee appointed by the Court. 28 OPPOSITION TO DEFENDANT NORD'S MOTION TO COMPEL 1 I. 1 INTRODUCTION 2 Plaintiff timely responded to Nord's discovery request with code-compliant responses. 3 Plaintiff also timely served amended responses in order to avoid another discovery dispute. 4 Nord's lawyer, Edward McCutchan ("McCutchan") filed this motion prematurely before 5 he had completed the meet and confer process with Plaintiff. McCutchan granted Plaintiff an 6 extension to September 20, 2022 to serve amended responses. Did McCutchan wait until the 7 deadline he had agreed to? No! Instead of waiting for the deadline, McCutchan filed this instant 8 motion on the day before, September 19, 2022. 9 II. 10 FACTS 11 On July 8, 2022, McCutchan served Plaintiff with Nord's discovery. (See, McCutchan 12 Decl. ¶¶ 2, 3, 4, 5). 13 On August 8, 2022, Plaintiff served responses to Nord's RFAs, FIs, SIs, and RPDs. (See, 14 McCutchan Decl. ¶¶ 12, 13, 14, 15). 15 On September 8, 2022, McCutchan sent his first meet and confer letter to Plaintiff. (See, 16 McCutchan Decl. ¶ 16). 17 On September 13, 2022, Plaintiff called McCutchan and requested more time to serve 18 amended responses to Nord's discovery. McCutchan granted an extension to September 20, 19 2022. (See, McCutchan Decl. ¶ 17; Abel Decl. ¶ 5). 20 On September 14, 2022, Plaintiff sent an email to McCutchan to confirm McCutchan's 21 agreement to extend the deadline to September 20, 2022. (See, McCutchan Decl. ¶ 17, Ex. 10). 22 On September 14, 2022, McCutchan confirmed by email that he agreed to extend the 23 deadline for amended responses to September 20, 2022. (See, McCutchan Decl. Ex. 10; Abel 24 Decl. ¶ 7). 25 On September 14 and 15, 2022, Plaintiff sent emails to McCutchan seeking clarification 26 of what his perceived “deficiencies” are in Plaintiff's original responses. Plaintiff also requested 27 access to the original of each document, as required pursuant to CCP section 2033.060(g). (See, 28 McCutchan Decl. ¶ 19, Ex. 10; Abel Decl. ¶ 8). OPPOSITION TO DEFENDANT NORD'S MOTION TO COMPEL 2 1 On September 15, 2022, McCutchan responded with an email, but provided no details 2 about his perceived “deficiencies” in Plaintiff's responses, nor did McCutchan provide the 3 original of each document as requested. (McCutchan Decl. ¶ 19, Ex. 10; Abel Decl. ¶¶ 9, 10). 4 On September 18, 2022 (a Sunday), Plaintiff served amended responses to Nord's FIs, 5 RFAs, and RPDs. Since there is no mail pickup on Sundays, it would have been put on a post 6 office truck on Monday and delivered the following day. (See, Abel Decl. ¶ 11, Ex. C, D, E). 7 On September 19, 2022 (a Monday), without waiting for his September 20, 2022 agreed 8 deadline, McCutchan filed this instant motion. 9 On September 29, 2022, McCutchan sent a meet and confer letter regarding Plaintiff's 10 supplemental responses. (See, Abel Decl. ¶ 12, Ex. F). 11 On October 7, 2022, Plaintiff served second amended responses to Nord's FIs and RPD's. 12 (See, Abel Decl. ¶ 13). 13 III. 14 RELEVANT LAW 15 The Discovery Act requires the responding party to undertake a "good faith" obligation to 16 investigate sources reasonably available to him or her in formulating answers to RFAs (See, CCP 17 §2033.220(c); Chodos v. Sup.Ct. (Lowe) (1963) 215 Cal.App.2d 318, 322). 18 But only a "reasonable" effort to find out is required. Thus, for example, a party would 19 not be expected to travel to a foreign country to verify a street address there (or even hire a 20 private investigator to do so). (See, Lindgren v. Sup.Ct. (Lindgren) (1965) 237 Cal.App. 2D 743, 21 746). 22 The duty to make reasonable efforts does not include a duty to search out matters of 23 public record. (See, Bunnell v. Sup.Ct. (California Life Ins. Co.) (1967) 254 Cal.App.2d 720, 24 723-724; see also Alpine Mut. Water Co. v. Sup.Ct. (Susana Knolls Mut. Water Co.) (1968) 259 25 Cal.App. 2d 45, 53 [interrogating party cannot force answering party to search public records to 26 ascertain answers to interrogatories].) Nor is the responding party under a duty to make inquiry 27 from independent witnesses (persons not his or her agents or employees) in order to answer 28 interrogatories. (See, Holguin v. Sup.Ct. (Hoage) (1972) 22 Cal.App. 3d 812, 826.) OPPOSITION TO DEFENDANT NORD'S MOTION TO COMPEL 3 1 When requesting the genuineness of documents, the requesting party must make the 2 originals available for inspection by the party to whom the requests are directed. (See, Code Civ. 3 Proc. §2033.060(g).) Parties are often requested to admit the genuineness of the propounding 4 party's documents and records (whether prepared by the propounding party or someone else.) 5 There is no known authority on this point, but arguably the responding party may properly deny 6 such requests on the ground that he or she has no "reasonable" way of verifying the genuineness 7 of propounding party's records. (quoting, Weil & Brown, CAL. PRAC. GUIDE: CIV PRO. 8 BEFORE TRIAL (The Rutter Group 2021) §8:1344.2.) 9 IV. 10 ARGUMENT 11 A. Plaintiff's Amended Responses to the FIs Are Code-Compliant 12 Plaintiff timely served amended responses to the FIs (“Amended Responses”) to address 13 the claimed “deficiencies” in McCutchan's September 8, 2022 letter. (McCutchan Decl. ¶ 16). 14 These Amended Responses were served on September 18, before the September 20, 2022 15 extended deadline that McCutchan agreed to. (Abel Decl. ¶ 11, Ex. C). McCutchan filed this 16 instant motion on September 19, 2022 without having seen the Amended Responses. (See, Abel 17 Decl. ¶¶ 11, 12). The Amended Responses are not in Nord's separate statement. 18 The Court should review the Amended Responses, instead of what is in Nord's separate 19 statement. The timely served Amended Responses superseded the original responses. 20 Plaintiff also served second amended responses to the FIs on October 7. (Decl. ¶ 13). 21 McCutchan failed to amend his separate statement to include all Amended Responses. Thus 22 Nord's separate statement is not full and complete. The separate statement must be full and 23 complete so that no person is required to review any other document in order to determine the 24 full request and the full response. (CRC, Rule 3.1345(c).) Nord's separate statement failed to 25 address Plaintiff's timely served Amended Responses. 26 The amended responses are code-compliant, and McCutchan now has all the information 27 he wanted. This motion is moot. 28 OPPOSITION TO DEFENDANT NORD'S MOTION TO COMPEL 4 1 B. Plaintiff's Objections to the Special Interrogatories (“SIs”) Have Merit 2 Code of Civ. Proc. §2030.060 provides: 3 (d) "Each interrogatory shall be full and complete in and of itself. No preface 4 or instructions shall be included with a set of interrogatories unless it has been approved under Chapter 17 (i.e. the Judicial Council)." 5 6 (e) "Any term specially defined in a set of interrogatories shall be typed with all letters capitalized wherever that term appears." 7 8 (f) "No specially prepared interrogatory shall contain subparts, or a compound, conjunctive, or disjunctive." 9 10 Nord's SIs are not full and complete in and of themselves. Each SI refers to another 11 document, in violation of CCP §2030.060(d). (See, McCutchan Ex. "3"). 12 Each of Nord's SIs require that Plaintiff make an inquiry with a third party witness (e.g. 13 Randall Bailey, Carl E. Barnes, Dale Barnes, etc.). A responding party has no duty to make an 14 inquiry with independent witnesses (persons not his or her agents or employees) in order to 15 answer interrogatories. (See, Holguin v. Sup.Ct. (Hoage) (1972) 22 Cal.App. 3d 812, 826.) 16 Nord failed to capitalized each specially defined term wherever that term appeared in the 17 SIs, (e.g. YOU and YOURS means Plaintiff, his or her agents and anyone else acting on his or 18 her behalf"). This violates CCP §2030.060(e). (See, McCutchan Ex. "3"). 19 Each of Nord's SIs are hopelessly compound. Not only do the SIs ask for the date that a 20 third party witness signed the exhibit, the SIs also ask for the names and addresses of all 21 witnesses, and the place where the exhibit was signed. This violates CCP §2030.060(f). 22 According to Weil & Brown, if the SIs were propounded in an improper form, this is a 23 valid objection which the Court should sustain, (See, Weil & Brown, supra. CAL. PRAC. 24 GUIDE: CIV PRO. BEFORE TRIAL §8:1352). Plaintiff's objections that the SIs do not comply 25 with Code of Civ. Proc. §2030.060, are well taken. 26 // 27 // 28 // OPPOSITION TO DEFENDANT NORD'S MOTION TO COMPEL 5 1 C. Plaintiff's Amended Responses to the RFAs Are Code-Compliant 2 Plaintiff timely served amended responses to the RFAs (“Amended Responses”) on 3 September 18, before the September 20, 2022 extended deadline that McCutchan agreed to. 4 (See, Abel Decl. ¶ 11, Ex. D). McCutchan jumped the gun and filed this motion on September 19 5 before he had seen Plaintiff's amended responses. 6 Plaintiff's Amended Responses are not in Nord's separate statement. Thus Nord's separate 7 statement is not full and complete. The separate statement must be full and complete so that no 8 person is required to review any other document in order to determine the full request and the 9 full response. (CRC, Rule 3.1345(c).) This defect is grounds to deny the motion. 10 (1). The RFAs Do Not Comply with Code of Civ. Proc. §2033.060(g) 11 Code of Civ. Proc. §2033.060(g) requires that the requesting party make the originals of 12 the documents available for inspection by the party to whom the requests are directed. 13 Plaintiff requested access to the original of each document during the meet and confer 14 period. McCutchan refused to provide Plaintiff with access to the original of each document as 15 Plaintiff requested. (See, McCutchan Decl. ¶ 19, Ex. 10; Abel Decl. ¶ 10). 16 (2). The RFAs Do Not Comply with Code of Civ. Proc. §2033.060(d) 17 Code of Civ. Proc. §2033.060(d) requires that Code of Civ. Proc. §2033.060 requires that 18 "Each request for admission shall be full and complete in and of itself." 19 Each Nord's RFA's are not full and complete in and of themselves. Each refers to another 20 document (an exhibit, which McCutchan refused to allow Plaintiff to see the original). 21 22 D. Plaintiff's Amended Responses to the RPDs Are Code-Compliant 23 Plaintiff timely served amended responses to the RPDs (“Amended Responses”) on 24 September 18, before the September 20, 2022 extended deadline that McCutchan agreed to. 25 (See, Abel Decl. ¶ 11, Ex. E). All of the documents requested were produced on a CD to 26 McCutchan by Plaintiff. (See, Abel Decl. ¶ 14). 27 Plaintiff's Amended Responses are not in Nord's separate statement. Thus Nord's separate 28 statement is not full and complete. The separate statement must be full and complete so that no OPPOSITION TO DEFENDANT NORD'S MOTION TO COMPEL 6 1 person is required to review any other document in order to determine the full request and the 2 full response. (CRC, Rule 3.1345(c).) This defect is grounds to deny the motion. 3 Further, Plaintiff served second amended responses to the RPDs on October 7, 2022. 4 These second amended responses are not in Nord's separate statement either. It is unclear to 5 Plaintiff which document that McCutchan is after, that has not already been produced. 6 (1). Nord's RPDs Are Overbroad 7 Code of Civ. Proc. §2031.030(c)(1) provides that each demand in a set shall be separately 8 set forth, and designate the documents, tangible things, land or other property or electronically 9 stored information by specifically describing each individual item or by reasonably 10 particularizing each category of item. 11 Nord did not specifically describe each individual item. Nord used a shotgun approach 12 without reasonably particularizing each category of item, Overbroad is a valid objection if the 13 request calls for an undue burden such as “shotgun” interrogatories” as they are too general. See 14 CEB, California Civil Discovery Practice (4th ed. 2009) §7.85 15 Without waiving the objections, Plaintiff agreed to produce documents that Plaintiff 16 believed were responsive to Nord's overbroad requests. Documents believed to be responsive 17 were produced on a CD by Plaintiff and delivered to McCutchan. (See, Abel Decl. ¶ 14). 18 E. Nord's Separate Statement is Deficient 19 A separate statement is required for a motion to compel further responses to 20 interrogatories, as well as to requests for admission. (California Rules of Court (“CRC”), Rule 21 3.1345(a)(2).) The separate statement must be full and complete so that no person is required to 22 review any other document in order to determine the full request and the full response. (CRC, 23 Rule 3.1345(c).) Moreover, if the response to a particular discovery request is dependent on the 24 response given to another discovery request, or if the reasons a further response to a particular 25 discovery request is deemed necessary are based on the response to some other discovery 26 request, the other request and the response to it must be set forth in the separate statement. (CRC, 27 Rule 3.1345(c)(5).) 28 OPPOSITION TO DEFENDANT NORD'S MOTION TO COMPEL 7 1 A trial court may deny a motion to compel on the basis that it is procedurally defective 2 and fails to comply with the California Rules of Court, Rule 3.1345. (Mills v. U.S. Bank (2008) 3 166 Cal.App.4th 871, 892 [trial court did not abuse its discretion in denying plaintiff’s motion to 4 compel discovery, as plaintiff failed to file code-compliant separate statement]. 5 Plaintiff's timely filed Amended Responses are not in Nord's separate statement. (Abel 6 Decl. ¶ 11). The separate statement is therefore incomplete. 7 The separate statement does not address Plaintiff's specific objections and responses. 8 Instead Nord uses the separate statement to argue the merits of the case. Except for the FIs, 9 Nord's grounds for the SIs, RFAs, and RPDs are more or less, all the same. (See, e.g. Nord 10 Separate Statement). Plaintiff's Amended Responses render most of the arguments made by 11 Nord in his separate statement moot. 12 F. McCutchan's Request for Sanctions is Not Warranted 13 Plaintiff acted with substantial justification in objecting to the discovery. The SIs do not 14 comply with CCP §2030.060. Plaintiff also timely served Amended Responses to the FIs, the 15 RFAs, and the RPDs before the September 20, 2022 deadline that McCutchan agreed to. 16 In the tentative ruling for another case on February 8, 2023, (SCV-267991 Villa Rosa 17 Homeowners Association v. Cooper) the Court said that the Court "awards a maximum rate of 18 $400 per hour based on the local Sonoma County market." (Abel Decl. ¶ 15). Here McCutchan's 19 request based on $425 exceeds the maximum rate set by the Court. 20 Arguably the average rate, not the maximum rate, should be applied. In the underlying 21 Liebling Action, McCutchan's hourly rate was $250. At that time McCutchan had an office, 22 employed staff lawyers, and had a secretary. (See, Abel Decl. ¶16). McCutchan's business 23 address now is the UPS Store in Healdsburg, and has no secretary. (Id.). 24 There is no evidence submitted that Nord has actually paid McCutchan anything. The 25 real purpose of this instant motion was just to generate more fees for McCutchan. 26 McCutchan's declaration states that he "incurred 3.1 hours." The rest is anticipated and 27 speculative, and has not been incurred. “Responding to the opposition” of 1.8 hours, is the same 28 thing as “drafting Jim Nord's reply to the opposition” of 1.9 hours. (McCutchan Decl. p. 5:5-6). OPPOSITION TO DEFENDANT NORD'S MOTION TO COMPEL 8 1 The Court should deny McCutchan's sanctions request because it would be unjust under the 2 circumstances. McCutchan breached his agreement with Plaintiff over the extended deadline. 3 4 G. McCutchan Failed to Meet and Confer in Good Faith 5 The court may impose a monetary sanction against anyone engaging in conduct that is a 6 misuse of the discovery process. (Code Civ. Proc. § 2023.030(a).) “Misuses of the discovery 7 process” include employing a discovery method to cause unwarranted annoyance, 8 embarrassment, or oppression, or undue burden or expense, making a motion to compel 9 without substantial justification, and failing to meet and confer in a “reasonable and good 10 faith” attempt to resolve discovery disputes informally. (Code Civ. Proc. § 2023.010(c), (h) 11 and (i). (emphasis added). A motion to compel further responses must be accompanied by a 12 meet and confer declaration under Code Civ. Proc. § 2016.040. 13 McCutchan sent only one (1) letter. (See, McCutchan ¶16, Ex. 9). Subsequent emails 14 only referred back to that one (1) letter. (See, McCutchan ¶19, Ex. 10). 15 This meet and confer letter sent by McCutchan, does not show "a reasonable and good 16 faith attempt at an informal resolution of each issue presented in the motion" pursuant to Code 17 Civ. Proc. §2016.040. (See, McCutchan Ex. "9"). In general terms, this one (1) letter concluded 18 that Plaintiff's objections were “meritless” without specifically addressing each issue that is now 19 being presented in this motion. 20 The letter sent by McCutchan does not constitute a reasonable and good faith attempt at 21 informal resolution. (See, Obregon v. Superior Court (1998) 67 Cal.App.4th 424, 432.) "[T]he 22 law requires that counsel attempt to talk the matter over, compare their views, consult, and 23 deliberate." (See, Townsend v. Superior Court (1998) 61 Cal.App. 4th 1431-1439.) That did 24 not happen here. (See, Abel Decl. ¶ 17). 25 Here, the papers submitted indicate that McCutchan filed this motion to compel on 26 September 19, 2022 before the September 20, 2022 extended deadline that McCutchan agreed to. 27 McCutchan refused to provide originals of the documents for Plaintiff to inspect. (See, Code Civ. 28 Proc. §2033.060(g).) (See, Abel Decl. ¶ 10). OPPOSITION TO DEFENDANT NORD'S MOTION TO COMPEL 9