Preview
I Todd A. Jones (Bar No. 198024)
tjones(garchemorris com
2 Gregory K. Federico (Bar No. 242184) E-NDORSED
gfederico(^archemorris.com
3 ARCHERNORRIS ' " O K - 6 Utiiu38
A Professional Law Corporation
4 301 University Avenue, Suite 110
LtGAL PROCESS m
Sacramento, Califomia 95825
5 Telephone: 916.646.2480
Facsimile: 916.646.5696
6
Attorneys for Defendants and Cross-Defendants
7 RICHARD KIRK RUYBALID, individually , and
dba CA CONSTRUCTION
8
9 SUPERIOR COURT OF CALIFORNIA
10 COUNTY OF SACRAMENTO
11
12 RODNEY ABBOTT and FLORENTINE CaseNo. 07AS04450
ABBOTT, r
13 MEMORANDUM OF POINTS AND
Plaintiffs, AUTHORITIES IN SUPPORT OF
14 MOTION TO COMPEL VERIFIED
V. RESPONSES FROM PLAINTIFF RODNEY
15 ABBOTT TO CA CONSTRUCTION'S
RONALD PAUL BRITSCHGI, et al.. FORM INTERROGATORIES, SET TWO,
16 REQUEST FOR PRODUCTION OF
Defendants. DOCUMENTS, SET ONE, AND REQUEST
17 FOR ADMISSIONS, SET ONE; REQUEST
TO DEEM REQUESTS FOR ADMISSIONS
18 AS ADMITTED; AND REQUEST FOR
SANCTIONS
19
, Hearing Date: January 3,2011
20 Hearing Time: 2:00 p.m.
Hearing Dept: 53
21
Trial Date: January 17, 2011
22 Action Filed: September 24, 2007
23
24
AND RELATED CROSS-ACTIONS.
25
26 I. I>JTRODUCTION
27 This matter is a constmction defect silit brought by the owner/builder FLORENTINE
28 ABBOTT and her husband RODNEY ABBC)TT ("Plaintiffs"), with respect to the construction of
N1C341/1057306-1
MPA IN SUPPORT OF MOTION TO (:OMPEL RESPONSES TO FR, RFP, AND RFA
1 their single family residence at 8601 Rolling Green Way in Fair Oaks, Sacramento County,
2 Califomia. Pursuant to pleadings on file in this matter. Plaintiffs hired Defendant RONALD
3 PAUL BRITSCHGI to act as the general contractor for all aspects ofconstmction project through
4 the framing stage. Plaintiffs were responsible for all aspects of construction via constmction
5 documents filed with the local building authority. Plaintiffs hired Defendant RICHARD K.
6 RUYBALID dba CA CONSTRUCTION ("CA CONSTRUCTION") to supply and install the
7 concrete foundation and garage slab per plans and specifications provided by Plaintiffs.
8 Plaintiffs filed their original complaint on September 24,' 2007 alleging tort and contract
9 claims as it pertains to the construction of their home. On July 23, 2009, Plaintiffs filed a First
10 Amended Complaint ("FAC") adding personal injury claims for mold exposure, new factual
11 allegations and causes of action against BRITSCHGI and CA CONSTRUCTION, and two new
12 parties. On December 4, 2009, Plaintiffs filed a Second Amended Complaint ("SAC"), which is
13 predominantly the same as the FAC. Finally, on or about November 5, 2010, Plaintiffs filed a
14 Third Amended Complaint ("FAC") adding allegations as to Defendant R4C0RP., FNC.
15 Plaintiffs allege, among other things, that the parties failed to properly place the house and
16 garage on the lot, particularly with regard to the elevation, pursuant to plans and specifications.
17 Plaintiffs allege that the parties breached their respective contracts, failed to comply with building
18 codes, and failed to comply with the standard of care in the relevant industry. Plaintiffs allege that
19 the fill and soils beneath the garage slab, and potentially the house, were compacted improperly.
20 In an effort to determine the quality and nature of Plaintiffs' allegations against it, CA
21 CONSTRUCTION propounded Form Interrogatories, Set Two, Request for Production of
22 Documents, Set One, and Requests for Admissions, Set One on March 6, 2009. (See Exhibits A,
23 B, and C to the Declaration of Gregory K. Federico, attached hereto and incorporated by
24 reference herein). Plaintiff RODNEY ABBOTT has failed to serve verified responses to CA
25 CONSTRUCTION'S Form Interrogatories, Set Two, Requests for Admissions, Set One and
26 Request for Production of Documents, Set One. Said responses were due on or before April 10,
27 2009.
28 Counsel for CA CONSTRUCTION has met and conferred with Plaintiffs counsel on four
N1C341/I057306-1 , 2
MPA IN SUPPORT OF MOTION TO COMPEL RESPbNSES TO FR, RFP, AND RFA
1 (4) separate occasions, including May 1, 2009, November 24, 2009, December 29, 2009, and
2 September 10, 2010. (See Exhibit D, copies ofthe four (4) meet and confer letters, to the
3 Declaration of Gregory K. Federico, attached hereto and incorporated by reference herein).
4 Plaintiffs counsel has made no indication that her client intends to verify his responses.
5 As such, CA CONSTRUCTION requests that this Court issue an order compelling Plaintiff
6 RODNEY ABBOTT to provide complete, verified responses, without objections, to its Form
7 Interrogatories, Set Two, Request for Production of Documents, Set One, and Requests for
8 Admissions, Set One. CA CONSTRUCTION fiirther requests that the tmth of any matters
9 specified in the Requests for Admissions be deemed admitted pursuant to Code ofCivil
10 Procedure §§ 2033.280 (b) and (c). CA CONSTRUCTION further requests that this Court issue
11 an order imposing sanctions on Plaintiff RODNEY ABBOTT and his counsel for abusing the
12 discovery process and failing to act with any justification in providing incomplete and unverified
13 responses to discovery.
'"^ H. LEGAL ARGUMENT
15
A. Plaintiff Rodney Abbott Should Be Compelled to Provide Verified
16 Responses to Form Interrogatories, Set Two, Request for Production
of Documents, Set One, and Requests for Admissions, Set One, Absent
17 Objections.
18 Plaintiff RODNEY ABBOTT's responses to the Form Interrogatories, Set Two, Request
19 for Production of Documents, Set One, and Requests for Admissions, Set One are not verified,
20 and as such, are deficient and untimely. Food 4 Less Supermarkets, Inc. v Superior Court (1995)
21 40 Cal. App.4th 651. A party to whom a set of interrogatories, documents requests, or requests for
22 admissions is directed, must sign the responses under oath. See Code ofCivil Procedure §§§
23 2030 250(a), 2031.250(a), and 2033.240(a). Unverified discovery responses are equivalent to no
24 response at all. Appleton v. Superior Court (Cook) (1988) 206 Cal.App.3d 632, 636 If a party to
25 whom set of interrogatories, documents requests, or requests for admissions is directed fails to
26 respond, the propounding party may seek a court order compelling answers to the discovery
27 requests. See Code ofCivil Procedure §§§ 2030.290, 2031.300, and 2033.280
28.
N1C341/1057306-1
MPA IN SUPPORT OF MOTION TO COMPEL RESPONSES TO FR, RFP, AND RFA
Finally, a party that fails to timely respond to discovery waives all objecfions to the
2 discovery, including those based on privilege. See Code of Civil Procedure §§§ 2030.290(a),
3 2031.300(a), and 2033.280(a). All that must be shown in the moving papers is that a discovery
4 request was properly served on the opposing party, that the time to respond has expired, and that a
5 response has not been served. See Leach v Sup Ct (1980) 111 Cal.App.3d 902, 905-906.
6 Here, CA CONSTRUCTION properly served Plaintiff RODNEY ABBOTT with Form
7 Interrogatories, Set Two, Request for Production of Documents, Set One, and Requests for
8 Admissions, Set One on March 6, 2009. Plainfiff RODNEY ABBOTT has failed to serve verified
9 responses to Form Interrogatories, Set Two, Requests for Admissions, Set One and Requests for
10 Producfion of Documents, Set One. Said responses were due on or before April 10, 2009
11 To date, no verification has been provided by Plainfiff RODNEY ABBOTT following CA
12 CONSTRUCTION'S four (4) separate meet and confer efforts in which it requested the subject
13 verifications Accordingly, this Court should now compel Plainfiff RODNEY ABBOTT to
14 provide CA CONSTRUCTION verified, objecfion-free responses forthwith.
15 B. CA Construction's Requests for Admissions, Set One to Plaintiff
Rodney Abbott Should Be Deemed Admitted
16
Code ofCivil Procedure § 2033.280 states in pertinent part'
17
(b) The requesting party may move for an order that the
18 genuineness of any documents and the truth of any matters
specified in the requests be deemed admitted, as well as for a
19 monetary sanction under Chapter 7 (commencing with Section
2023.010)
20
(c) The court shall make this order, unless it finds that the party to
21 whom the requests for admission have been directed has served,
before the hearing on the motion, a proposed response to the
22 requests for admission that is in substanfial compliance with
Section 2033.220. It is mandatory that the court impose a monetary
23 sanction under Section 2023 on the party or attomey, or both,
whose failure to serve a timely response to requests for admission
24 necessitated this motion.
25 Pursuant to the aforementioned provisions, CA CONSTRUCTION requests this Court
26 deem admitted the truth ofthe matters specified in the Request for Admissions, Set One. Since
27 this motion deals with a failure to respond by not verifying the responses, rather than inadequate
28 responses, no attempt need be shown to resolve the matter informally. (See Demyer v Costa
N1C34I/1057306-1 4
MPA IN SUPPORT OF MOTION TO COMPEL RESPONSES TO FR, RFP, AND RFA
1 Mesa Mobile Home Estates (1995) 36 Cal App.4th 393, 395(cifing text) (disapproved on other
2 grounds in Wilcox v. Birtwhistle (1999) 21 Cal.4th 973, 983))
3 On March 6,2009, CA CONSTRUCTION propounded the first set of Requests for
4 Admissions,on Plainfiff RODNEY ABBOTT. He served unverified responses on April 10, 2009.
5 As ofthe date of filing ofthis mofion, Plainfiff has failed to serve a verified response, which
6 constitutes no response at all. Thus, this Court should grant this mofion and deem admitted the
7 Requests for Admissions that were directed to Plaintiff RODNEY ABBOTT.
8 Furthermore, pursuant to Code of Civil Procedure §§ 2033.280 and 2023.010, CA
9 CONSTRUCTION also requests this Court impose monetary sanctions against Plainfiff and his
10 counsel for the amount specified in the Declarafion of Gregory K Federico. This Court must
11 impose monetary sanctions against Plaintiff and his counsel for their failure to issue verified
12 responses to CA CONSTRUCTION'S Requests for Admissions, Set One, regardless of whether
13 Plaintiff serves verified responses thereto prior to the hearing ofthis motion. Code of Civd
14 Procedure ^IQ'hli.lW.
15 m. SANCTIONS ARE WARRANTED
16 Sancfions are proper against Plaintiff RODNEY ABBOTT and/or his counsel for their
17 unjustifiable failure to comply with the discovery rules and for their abuse ofthe discovery
18 process. The purpose of discovery sanctions is to prevent abuse ofthe discovery process and
19 correct the problem presented. Do v Superior Court (2003) 109 Cal. App. 4th 1210, 1213. Code
20 of Civil Procedure § 2023.010 et seq , provides for sanctions for the misuse ofthe discovery
21 process, which includes "(d) Failing to respond or to submit to an authorized method of
22 discovery" and "(h) Making or opposing, unsuccessfially and without substanfial justification, a
23 motion to compel or to limit discovery." Code of Civil Procedure §§ 2023.010(d) & (h). Further,
24 the following Code provisions call for sanctions and state in pertinent part-
25 Code of Civil Procedure § 2030 290(c):
"The court shall impose a monetary sancfion...against any party,
2-j person, or attomey who unsuccessfully makes or opposes a motion
to compel a response to interrogatories, unless it finds that the one
28 subject to the sanctions acted with substantial justification or that
NIC341/1057306-1 5
MPA IN SUPPORT OF MOTION TO COMPEL RESPONSES TO FR, RFP, AND RFA
1 other circumstances make the imposition of sancfion unjust"
(emphasis added).
Code ofCivil Procedure § 2031.300(c):
A ". ., the court shall impose a monetary sanction., against any
party, person, or attomey who unsuccessfully makes or opposes a
5 motion to compel a response to *** a demand for inspection,
copying, testing, or sampling, unless it finds that the one subject to
6 the sanctions acted with substantial justification or that other
circumstances make the imposition of sanction unjust." (emphasis
7 added).
8 Code of Civil Procedure § 2033.280(b)
9
"The requesting party may move for an order that the genuineness
0 of any documents and the tmth of any matters specified in the
requests be deemed admitted, as well as for a monetary sanction
11 under Chapter 7 (commencing with Secfion 2033.010)." (emphasis
12 added).
Code of Civil Procedure § 2033.280(c):
13
J4 "...It is mandatory that the court impose a monetary sancfion...on
the party or attomey, or both, whose failure to serve a timely
15 response to requests for admission necessitated this motion "
(emphasis added).
16
17 Defendant CA CONSTRUCTION has engaged in the meet and confer process in good
18 faith and now requests that the Court issue an order compelling Plaintiff RODNEY ABBOTT to
19 respond to its discovery. It is evident from the facts that Plaintiff RODNEY ABBOTT simply
20 will not comply with CA CONSTRUCTION'S written discovery absent a court order. Plaintiff
21 RODNEY ABBOTT'S failure to provide verified responses will prejudice CA CONSTRUCTION
22 in its ability to prepare for a trial, which starts in less than two (2) months, as it requires verified
23 responses at trial Given Plainfiff RODNEY ABBOTT and his counsel's unwillingness to verily
24 the responses in blatant disregard of CA CONSTRUCTION'S four (4) separate meet and confer
25 attempts and the pending trial date of January 17, 2011, CA CONSTRUCTION is now forced to
26 incur unnecessary costs to seek judicial assistance to compel verified responses to its discovery
27 requests. Plaintiff RODNEY ABBOTT has had over 18 months to verify these responses. There
28 is no iusfification, let alone substantial jusfification, for Plaintiff RODNEY ABBOTT's failure to
NIC341/1057306-1 6
MPA IN SUPPORT OF MOTION TO COMPEL RESPONSES TO FR, RFP, AND RFA
1 provide verified responses to the discovery requests issued by CA CONSTRUCTION
2 Sanctions against Plaintiff RODNEY ABBOTT and his counsel are appropriate, just and
3 warranted to compensate CA CONSTRUCTION for the time and expense in having to bring this
4 unnecessary Mofion. Plainfiff RODNEY ABBOTT and his counsel's actions evidence a blatant
5 disregard for the discovery mles. Pursuant to Code of Civil Procedure Sections 2023.010 (d) &
6 (h), 2030.290(c), 2031.300(c), and 2033.280 (b) «& (c), as well as this Court's inherent power to
7 impose monetary sancfions against the non-prevailing party on a motion to compel discovery
8 responses. Defendant CA CONSTRUCTION submits that this Court should award sancfions in
9 the amount of $1,057.50, as supported by the Declaration of Gregory K. Federico.
10 III. CONCLUSION
11 Based upon the foregoing, Defendant CA CONSTRUCTION respectfully requests that
12 this Court issue an Order compelling Plaintiff RODNEY ABBOTT to provide complete, verified
13 responses, without objections, to its Form Interrogatories, Set Two, Request for Production of
14 Documents, Set One, and Requests for Admissions, Set One within five (5) days ofthe hearing of
15 this Motion or as soon as the Court deems appropriate. Further, CA CONSTRUCTION requests
16 that the tmth ofany matters specified in the Requests for Admissions be deemed admitted
17 pursuant to Code ofCivil Procedure §§ 2033.280 (b) and (c). Further, CA CONSTRUCTION
18 requests that this, Court award it sancfions in the amount of $1,057.50.
19
Dated. December 3, 2010 ARCHER NORRIS
20
21
22
4 ^
Gregory K. Federico
Attomeys for Defendants and Cross-
23 Defendants RICHARD KIRK RUYBALID,
individually, and dba CA CONSTRUCTION
24
25
26
27
28
NIC341/I057306-1
MPA IN SUPPORT OF MOTION TO COMPEL RESPONSES TO FR, RFP, AND RFA
1 PROOF OF SERVICE
2 Name of Action: Rodney Abbott, et al. v. Ronald Paul Britschgi, et al.
Court and Action No: Sacramento County Superior No. 07AS04450
3
I, Cindy A. Ingland, declare that I am over the age of 18 years and not a party to this
4 action or proceeding. My business address is 301 University Avenue, Suite 110, Sacramento,
Califomia 95825. On December 6, 2010,1 caused the following document(s) to be served:
5
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO
6 COMPEL VERIFIED RESPONSES FROM PLAINTIFF RODNEY ABBOTT TO CA
CONSTRUCTION'S FORM INTERROGATORIES, SET TWO, REQUEST FOR
7 PRODUCTION OF DOCUMENTS, SET ONE, AND REQUEST FOR ADMISSIONS,
SET ONE; REQUEST TO DEEM REQUESTS FOR ADMISSIONS AS ADMITTED;
8 AND REQUEST FOR SANCTIONS
9 By placing a true copy ofthe documents listed above, enclosed in a sealed envelope,
addressed as set forth below, for collection and mailing on the date and at the business
IX] address shown above following our ordinary business practices I am readily familiar
11 with this business' practice for collection and processing of correspondence for
mailing with the United States Postal Service. On the same day that a sealed envelope
12 is placed for collecfion and mailing, it is deposited in the ordinary course ofbusiness
with the United States Postal Service with postage fully prepaid
13
I I By having a true copy ofthe document(s) listed above transmitted by facsimile to the
14 person(s) at the facsimile number(s) set forth below before 5:00 p m. The transmission
.- was reported as complete without error by a report issued by the transmitting facsimile
machine.
16
I I By placing a tme copy ofthe document(s) listed above, in a box or other facility
17 regularly maintained by UPS, an express service carrier, or delivered to a courier or
driver authorized by the express service carrier to receive documents, in an envelope
18 designated by the express service carrier, with delivery fees paid or provided for,
addressed as set forth below.
20 n by having personal deliverv by FIRST LEGAL SUPPORT SERVICES a tme copv of
the document(s) listed above, enclosed in a sealed envelope, to the person(s) and at the
21 address(es) set forth below.
22
[SEE ATTACHED SERVICE LIST]
23
I declare under penalty ofperjury that the foregoing is tme and correct. Executed on
24 December 6, 2010, at Sacramento, California.
25
26
27
28
NIC341/608293-1
PROOF OF SERVICE
1 Service List
2
Stephanie Fmelli PLAINTIFFS
3 Law Offices of Stephanie J Fmelli
1007 Seventh Street, Suite 500 Tel (916)443-2144
4 Sacramento, CA 95814 Fax:(916)443-1511
E-mail sfinelli700@yahoo com
5
Richard D Sopp Counsel for CADRE DESIGN GROUP, INC.
6 Wheatley Sopp LLP
1004 River Rock Dnve, Suite 245 Tel (916)988-3857
7 Folsom, CA 95630 Fax:(916)988-5296
Email rds@mwsblaw com
8
Mark Smith In Pro Per
9 8549 Willow Valley Place
Granite Bay, CA 95746
10
Richard W Freeman Counsel for R4C0RP
11 Scotts Brooks
WOOD SMITH HENNING & BERMAN LLP Tel (925) 356-8200
12 1401 Willow Pass Road, Suite 700 Fax: (925) 356-8250
Concord, CA 94520-7982
13
14
15
16
17
18
19
20
21
22
J
23
24
25
26
27
28
N1C341/608293-1 2
SERVICE LIST
Preview
I Todd A. Jones (Bar No. 198024) tjones(garchemorris com 2 Gregory K. Federico (Bar No. 242184) E-NDORSED gfederico(^archemorris.com 3 ARCHERNORRIS ' " O K - 6 Utiiu38 A Professional Law Corporation 4 301 University Avenue, Suite 110 LtGAL PROCESS m Sacramento, Califomia 95825 5 Telephone: 916.646.2480 Facsimile: 916.646.5696 6 Attorneys for Defendants and Cross-Defendants 7 RICHARD KIRK RUYBALID, individually , and dba CA CONSTRUCTION 8 9 SUPERIOR COURT OF CALIFORNIA 10 COUNTY OF SACRAMENTO 11 12 RODNEY ABBOTT and FLORENTINE CaseNo. 07AS04450 ABBOTT, r 13 MEMORANDUM OF POINTS AND Plaintiffs, AUTHORITIES IN SUPPORT OF 14 MOTION TO COMPEL VERIFIED V. RESPONSES FROM PLAINTIFF RODNEY 15 ABBOTT TO CA CONSTRUCTION'S RONALD PAUL BRITSCHGI, et al.. FORM INTERROGATORIES, SET TWO, 16 REQUEST FOR PRODUCTION OF Defendants. DOCUMENTS, SET ONE, AND REQUEST 17 FOR ADMISSIONS, SET ONE; REQUEST TO DEEM REQUESTS FOR ADMISSIONS 18 AS ADMITTED; AND REQUEST FOR SANCTIONS 19 , Hearing Date: January 3,2011 20 Hearing Time: 2:00 p.m. Hearing Dept: 53 21 Trial Date: January 17, 2011 22 Action Filed: September 24, 2007 23 24 AND RELATED CROSS-ACTIONS. 25 26 I. I>JTRODUCTION 27 This matter is a constmction defect silit brought by the owner/builder FLORENTINE 28 ABBOTT and her husband RODNEY ABBC)TT ("Plaintiffs"), with respect to the construction of N1C341/1057306-1 MPA IN SUPPORT OF MOTION TO (:OMPEL RESPONSES TO FR, RFP, AND RFA 1 their single family residence at 8601 Rolling Green Way in Fair Oaks, Sacramento County, 2 Califomia. Pursuant to pleadings on file in this matter. Plaintiffs hired Defendant RONALD 3 PAUL BRITSCHGI to act as the general contractor for all aspects ofconstmction project through 4 the framing stage. Plaintiffs were responsible for all aspects of construction via constmction 5 documents filed with the local building authority. Plaintiffs hired Defendant RICHARD K. 6 RUYBALID dba CA CONSTRUCTION ("CA CONSTRUCTION") to supply and install the 7 concrete foundation and garage slab per plans and specifications provided by Plaintiffs. 8 Plaintiffs filed their original complaint on September 24,' 2007 alleging tort and contract 9 claims as it pertains to the construction of their home. On July 23, 2009, Plaintiffs filed a First 10 Amended Complaint ("FAC") adding personal injury claims for mold exposure, new factual 11 allegations and causes of action against BRITSCHGI and CA CONSTRUCTION, and two new 12 parties. On December 4, 2009, Plaintiffs filed a Second Amended Complaint ("SAC"), which is 13 predominantly the same as the FAC. Finally, on or about November 5, 2010, Plaintiffs filed a 14 Third Amended Complaint ("FAC") adding allegations as to Defendant R4C0RP., FNC. 15 Plaintiffs allege, among other things, that the parties failed to properly place the house and 16 garage on the lot, particularly with regard to the elevation, pursuant to plans and specifications. 17 Plaintiffs allege that the parties breached their respective contracts, failed to comply with building 18 codes, and failed to comply with the standard of care in the relevant industry. Plaintiffs allege that 19 the fill and soils beneath the garage slab, and potentially the house, were compacted improperly. 20 In an effort to determine the quality and nature of Plaintiffs' allegations against it, CA 21 CONSTRUCTION propounded Form Interrogatories, Set Two, Request for Production of 22 Documents, Set One, and Requests for Admissions, Set One on March 6, 2009. (See Exhibits A, 23 B, and C to the Declaration of Gregory K. Federico, attached hereto and incorporated by 24 reference herein). Plaintiff RODNEY ABBOTT has failed to serve verified responses to CA 25 CONSTRUCTION'S Form Interrogatories, Set Two, Requests for Admissions, Set One and 26 Request for Production of Documents, Set One. Said responses were due on or before April 10, 27 2009. 28 Counsel for CA CONSTRUCTION has met and conferred with Plaintiffs counsel on four N1C341/I057306-1 , 2 MPA IN SUPPORT OF MOTION TO COMPEL RESPbNSES TO FR, RFP, AND RFA 1 (4) separate occasions, including May 1, 2009, November 24, 2009, December 29, 2009, and 2 September 10, 2010. (See Exhibit D, copies ofthe four (4) meet and confer letters, to the 3 Declaration of Gregory K. Federico, attached hereto and incorporated by reference herein). 4 Plaintiffs counsel has made no indication that her client intends to verify his responses. 5 As such, CA CONSTRUCTION requests that this Court issue an order compelling Plaintiff 6 RODNEY ABBOTT to provide complete, verified responses, without objections, to its Form 7 Interrogatories, Set Two, Request for Production of Documents, Set One, and Requests for 8 Admissions, Set One. CA CONSTRUCTION fiirther requests that the tmth of any matters 9 specified in the Requests for Admissions be deemed admitted pursuant to Code ofCivil 10 Procedure §§ 2033.280 (b) and (c). CA CONSTRUCTION further requests that this Court issue 11 an order imposing sanctions on Plaintiff RODNEY ABBOTT and his counsel for abusing the 12 discovery process and failing to act with any justification in providing incomplete and unverified 13 responses to discovery. '"^ H. LEGAL ARGUMENT 15 A. Plaintiff Rodney Abbott Should Be Compelled to Provide Verified 16 Responses to Form Interrogatories, Set Two, Request for Production of Documents, Set One, and Requests for Admissions, Set One, Absent 17 Objections. 18 Plaintiff RODNEY ABBOTT's responses to the Form Interrogatories, Set Two, Request 19 for Production of Documents, Set One, and Requests for Admissions, Set One are not verified, 20 and as such, are deficient and untimely. Food 4 Less Supermarkets, Inc. v Superior Court (1995) 21 40 Cal. App.4th 651. A party to whom a set of interrogatories, documents requests, or requests for 22 admissions is directed, must sign the responses under oath. See Code ofCivil Procedure §§§ 23 2030 250(a), 2031.250(a), and 2033.240(a). Unverified discovery responses are equivalent to no 24 response at all. Appleton v. Superior Court (Cook) (1988) 206 Cal.App.3d 632, 636 If a party to 25 whom set of interrogatories, documents requests, or requests for admissions is directed fails to 26 respond, the propounding party may seek a court order compelling answers to the discovery 27 requests. See Code ofCivil Procedure §§§ 2030.290, 2031.300, and 2033.280 28. N1C341/1057306-1 MPA IN SUPPORT OF MOTION TO COMPEL RESPONSES TO FR, RFP, AND RFA Finally, a party that fails to timely respond to discovery waives all objecfions to the 2 discovery, including those based on privilege. See Code of Civil Procedure §§§ 2030.290(a), 3 2031.300(a), and 2033.280(a). All that must be shown in the moving papers is that a discovery 4 request was properly served on the opposing party, that the time to respond has expired, and that a 5 response has not been served. See Leach v Sup Ct (1980) 111 Cal.App.3d 902, 905-906. 6 Here, CA CONSTRUCTION properly served Plaintiff RODNEY ABBOTT with Form 7 Interrogatories, Set Two, Request for Production of Documents, Set One, and Requests for 8 Admissions, Set One on March 6, 2009. Plainfiff RODNEY ABBOTT has failed to serve verified 9 responses to Form Interrogatories, Set Two, Requests for Admissions, Set One and Requests for 10 Producfion of Documents, Set One. Said responses were due on or before April 10, 2009 11 To date, no verification has been provided by Plainfiff RODNEY ABBOTT following CA 12 CONSTRUCTION'S four (4) separate meet and confer efforts in which it requested the subject 13 verifications Accordingly, this Court should now compel Plainfiff RODNEY ABBOTT to 14 provide CA CONSTRUCTION verified, objecfion-free responses forthwith. 15 B. CA Construction's Requests for Admissions, Set One to Plaintiff Rodney Abbott Should Be Deemed Admitted 16 Code ofCivil Procedure § 2033.280 states in pertinent part' 17 (b) The requesting party may move for an order that the 18 genuineness of any documents and the truth of any matters specified in the requests be deemed admitted, as well as for a 19 monetary sanction under Chapter 7 (commencing with Section 2023.010) 20 (c) The court shall make this order, unless it finds that the party to 21 whom the requests for admission have been directed has served, before the hearing on the motion, a proposed response to the 22 requests for admission that is in substanfial compliance with Section 2033.220. It is mandatory that the court impose a monetary 23 sanction under Section 2023 on the party or attomey, or both, whose failure to serve a timely response to requests for admission 24 necessitated this motion. 25 Pursuant to the aforementioned provisions, CA CONSTRUCTION requests this Court 26 deem admitted the truth ofthe matters specified in the Request for Admissions, Set One. Since 27 this motion deals with a failure to respond by not verifying the responses, rather than inadequate 28 responses, no attempt need be shown to resolve the matter informally. (See Demyer v Costa N1C34I/1057306-1 4 MPA IN SUPPORT OF MOTION TO COMPEL RESPONSES TO FR, RFP, AND RFA 1 Mesa Mobile Home Estates (1995) 36 Cal App.4th 393, 395(cifing text) (disapproved on other 2 grounds in Wilcox v. Birtwhistle (1999) 21 Cal.4th 973, 983)) 3 On March 6,2009, CA CONSTRUCTION propounded the first set of Requests for 4 Admissions,on Plainfiff RODNEY ABBOTT. He served unverified responses on April 10, 2009. 5 As ofthe date of filing ofthis mofion, Plainfiff has failed to serve a verified response, which 6 constitutes no response at all. Thus, this Court should grant this mofion and deem admitted the 7 Requests for Admissions that were directed to Plaintiff RODNEY ABBOTT. 8 Furthermore, pursuant to Code of Civil Procedure §§ 2033.280 and 2023.010, CA 9 CONSTRUCTION also requests this Court impose monetary sanctions against Plainfiff and his 10 counsel for the amount specified in the Declarafion of Gregory K Federico. This Court must 11 impose monetary sanctions against Plaintiff and his counsel for their failure to issue verified 12 responses to CA CONSTRUCTION'S Requests for Admissions, Set One, regardless of whether 13 Plaintiff serves verified responses thereto prior to the hearing ofthis motion. Code of Civd 14 Procedure ^IQ'hli.lW. 15 m. SANCTIONS ARE WARRANTED 16 Sancfions are proper against Plaintiff RODNEY ABBOTT and/or his counsel for their 17 unjustifiable failure to comply with the discovery rules and for their abuse ofthe discovery 18 process. The purpose of discovery sanctions is to prevent abuse ofthe discovery process and 19 correct the problem presented. Do v Superior Court (2003) 109 Cal. App. 4th 1210, 1213. Code 20 of Civil Procedure § 2023.010 et seq , provides for sanctions for the misuse ofthe discovery 21 process, which includes "(d) Failing to respond or to submit to an authorized method of 22 discovery" and "(h) Making or opposing, unsuccessfially and without substanfial justification, a 23 motion to compel or to limit discovery." Code of Civil Procedure §§ 2023.010(d) & (h). Further, 24 the following Code provisions call for sanctions and state in pertinent part- 25 Code of Civil Procedure § 2030 290(c): "The court shall impose a monetary sancfion...against any party, 2-j person, or attomey who unsuccessfully makes or opposes a motion to compel a response to interrogatories, unless it finds that the one 28 subject to the sanctions acted with substantial justification or that NIC341/1057306-1 5 MPA IN SUPPORT OF MOTION TO COMPEL RESPONSES TO FR, RFP, AND RFA 1 other circumstances make the imposition of sancfion unjust" (emphasis added). Code ofCivil Procedure § 2031.300(c): A ". ., the court shall impose a monetary sanction., against any party, person, or attomey who unsuccessfully makes or opposes a 5 motion to compel a response to *** a demand for inspection, copying, testing, or sampling, unless it finds that the one subject to 6 the sanctions acted with substantial justification or that other circumstances make the imposition of sanction unjust." (emphasis 7 added). 8 Code of Civil Procedure § 2033.280(b) 9 "The requesting party may move for an order that the genuineness 0 of any documents and the tmth of any matters specified in the requests be deemed admitted, as well as for a monetary sanction 11 under Chapter 7 (commencing with Secfion 2033.010)." (emphasis 12 added). Code of Civil Procedure § 2033.280(c): 13 J4 "...It is mandatory that the court impose a monetary sancfion...on the party or attomey, or both, whose failure to serve a timely 15 response to requests for admission necessitated this motion " (emphasis added). 16 17 Defendant CA CONSTRUCTION has engaged in the meet and confer process in good 18 faith and now requests that the Court issue an order compelling Plaintiff RODNEY ABBOTT to 19 respond to its discovery. It is evident from the facts that Plaintiff RODNEY ABBOTT simply 20 will not comply with CA CONSTRUCTION'S written discovery absent a court order. Plaintiff 21 RODNEY ABBOTT'S failure to provide verified responses will prejudice CA CONSTRUCTION 22 in its ability to prepare for a trial, which starts in less than two (2) months, as it requires verified 23 responses at trial Given Plainfiff RODNEY ABBOTT and his counsel's unwillingness to verily 24 the responses in blatant disregard of CA CONSTRUCTION'S four (4) separate meet and confer 25 attempts and the pending trial date of January 17, 2011, CA CONSTRUCTION is now forced to 26 incur unnecessary costs to seek judicial assistance to compel verified responses to its discovery 27 requests. Plaintiff RODNEY ABBOTT has had over 18 months to verify these responses. There 28 is no iusfification, let alone substantial jusfification, for Plaintiff RODNEY ABBOTT's failure to NIC341/1057306-1 6 MPA IN SUPPORT OF MOTION TO COMPEL RESPONSES TO FR, RFP, AND RFA 1 provide verified responses to the discovery requests issued by CA CONSTRUCTION 2 Sanctions against Plaintiff RODNEY ABBOTT and his counsel are appropriate, just and 3 warranted to compensate CA CONSTRUCTION for the time and expense in having to bring this 4 unnecessary Mofion. Plainfiff RODNEY ABBOTT and his counsel's actions evidence a blatant 5 disregard for the discovery mles. Pursuant to Code of Civil Procedure Sections 2023.010 (d) & 6 (h), 2030.290(c), 2031.300(c), and 2033.280 (b) «& (c), as well as this Court's inherent power to 7 impose monetary sancfions against the non-prevailing party on a motion to compel discovery 8 responses. Defendant CA CONSTRUCTION submits that this Court should award sancfions in 9 the amount of $1,057.50, as supported by the Declaration of Gregory K. Federico. 10 III. CONCLUSION 11 Based upon the foregoing, Defendant CA CONSTRUCTION respectfully requests that 12 this Court issue an Order compelling Plaintiff RODNEY ABBOTT to provide complete, verified 13 responses, without objections, to its Form Interrogatories, Set Two, Request for Production of 14 Documents, Set One, and Requests for Admissions, Set One within five (5) days ofthe hearing of 15 this Motion or as soon as the Court deems appropriate. Further, CA CONSTRUCTION requests 16 that the tmth ofany matters specified in the Requests for Admissions be deemed admitted 17 pursuant to Code ofCivil Procedure §§ 2033.280 (b) and (c). Further, CA CONSTRUCTION 18 requests that this, Court award it sancfions in the amount of $1,057.50. 19 Dated. December 3, 2010 ARCHER NORRIS 20 21 22 4 ^ Gregory K. Federico Attomeys for Defendants and Cross- 23 Defendants RICHARD KIRK RUYBALID, individually, and dba CA CONSTRUCTION 24 25 26 27 28 NIC341/I057306-1 MPA IN SUPPORT OF MOTION TO COMPEL RESPONSES TO FR, RFP, AND RFA 1 PROOF OF SERVICE 2 Name of Action: Rodney Abbott, et al. v. Ronald Paul Britschgi, et al. Court and Action No: Sacramento County Superior No. 07AS04450 3 I, Cindy A. Ingland, declare that I am over the age of 18 years and not a party to this 4 action or proceeding. My business address is 301 University Avenue, Suite 110, Sacramento, Califomia 95825. On December 6, 2010,1 caused the following document(s) to be served: 5 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION TO 6 COMPEL VERIFIED RESPONSES FROM PLAINTIFF RODNEY ABBOTT TO CA CONSTRUCTION'S FORM INTERROGATORIES, SET TWO, REQUEST FOR 7 PRODUCTION OF DOCUMENTS, SET ONE, AND REQUEST FOR ADMISSIONS, SET ONE; REQUEST TO DEEM REQUESTS FOR ADMISSIONS AS ADMITTED; 8 AND REQUEST FOR SANCTIONS 9 By placing a true copy ofthe documents listed above, enclosed in a sealed envelope, addressed as set forth below, for collection and mailing on the date and at the business IX] address shown above following our ordinary business practices I am readily familiar 11 with this business' practice for collection and processing of correspondence for mailing with the United States Postal Service. On the same day that a sealed envelope 12 is placed for collecfion and mailing, it is deposited in the ordinary course ofbusiness with the United States Postal Service with postage fully prepaid 13 I I By having a true copy ofthe document(s) listed above transmitted by facsimile to the 14 person(s) at the facsimile number(s) set forth below before 5:00 p m. The transmission .- was reported as complete without error by a report issued by the transmitting facsimile machine. 16 I I By placing a tme copy ofthe document(s) listed above, in a box or other facility 17 regularly maintained by UPS, an express service carrier, or delivered to a courier or driver authorized by the express service carrier to receive documents, in an envelope 18 designated by the express service carrier, with delivery fees paid or provided for, addressed as set forth below. 20 n by having personal deliverv by FIRST LEGAL SUPPORT SERVICES a tme copv of the document(s) listed above, enclosed in a sealed envelope, to the person(s) and at the 21 address(es) set forth below. 22 [SEE ATTACHED SERVICE LIST] 23 I declare under penalty ofperjury that the foregoing is tme and correct. Executed on 24 December 6, 2010, at Sacramento, California. 25 26 27 28 NIC341/608293-1 PROOF OF SERVICE 1 Service List 2 Stephanie Fmelli PLAINTIFFS 3 Law Offices of Stephanie J Fmelli 1007 Seventh Street, Suite 500 Tel (916)443-2144 4 Sacramento, CA 95814 Fax:(916)443-1511 E-mail sfinelli700@yahoo com 5 Richard D Sopp Counsel for CADRE DESIGN GROUP, INC. 6 Wheatley Sopp LLP 1004 River Rock Dnve, Suite 245 Tel (916)988-3857 7 Folsom, CA 95630 Fax:(916)988-5296 Email rds@mwsblaw com 8 Mark Smith In Pro Per 9 8549 Willow Valley Place Granite Bay, CA 95746 10 Richard W Freeman Counsel for R4C0RP 11 Scotts Brooks WOOD SMITH HENNING & BERMAN LLP Tel (925) 356-8200 12 1401 Willow Pass Road, Suite 700 Fax: (925) 356-8250 Concord, CA 94520-7982 13 14 15 16 17 18 19 20 21 22 J 23 24 25 26 27 28 N1C341/608293-1 2 SERVICE LIST