Preview
1 STEPHANIE J. FINELLI, SBN 173462
Law Office of Stephanie J. Finelli FILED ENDORS ED !
2 1007-7th Street, Suite 500
Sacramento, CA 95814
3 tel 916-443-2144
fax 916-443-1511 DEC 1 6 2010
4
Attorney for Plaintiffs, L KENNEDY
5 FLORENTINE and RODNEY ABBOTT DEPUn CLEHK
6
7
IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
8
IN AND FOR THE COUNTY OF SACRAMENTO
9
10
FLORENTINE AND RODNEY ABBOTT, CaseNo.: 07AS04450
11
Plaintiffs, COMBINED OPPOSITION BY
12 PLAINTIFFS FLORENTINE AND
vs. RODNEY ABBOTT TO MOTION TO
13 COMPEL VERIFIED RESPONSES;
RONALD BRITSCHGI, et. al.. REQUEST FOR JUDICIAL NOTICE;
14 DECLARATION OF STEPHANIE J.
Defendants FINELLI
15
16 Date: January 3, 2011
and related cross-actions Time: 2:00 p.m.
17 Dept: 53
18 Trial Date: January 17, 2011
19
I. INTRODUCTION
20
Plaintiffs Florentine and Rodney Abbott present this combined Opposition to the two
21
separate motions to compel. Because the motions are virtually identical, in the interests ol
22
judicial economy, plaintiffs present a combined opposition.
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The motion is meritless and even frivolous. First, it is untimely by well over a year. The
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initial trial date in this case was May 11, 2009. Discovery thus closed on April 11, 2009, and the
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last day to hear any discovery motions was April 26, 2009. But counsel for Ruybalid/CA
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Construction did not even meet and confer on the issue of the missing verifications until May 4,
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2009, and this motion is brought a year and a half later. Although plaintiffs' counsel has
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informed CA Construction's attomey that the motion was untimely, it has not been withdrawn.
Opposition to Motion to Compel - 1
1 Additionally, moving party concedes that plaintiffs responded to the discovery requests;
2 their only complaint is that the responses did not include verifications. But moving party has not
3 provided this Court with copies ofthe responses showing that they contain answers in addition to
4 objections. And the assertion that the lack of verifications somehow operates to nullify the
5 objections contained therein is patently contrary to law. And moving party has not set forth a
6 valid legal basis for compelling the relief sought.
7 The motion must be denied and sanctions should be awarded to plaintiffs for having to
8 respond to a baseless, patently untimely motion.
9
10 II. LEGAL ARGUMENT
II A. The Motion Is Untimely
12 The law is clear: discovery cuts off 30 days before trial, and any discovery motions must
13 be heard within 15 days before trial. (Code Civ.Proc. §2024.020(a).) A continuance ofthe tiial
14 does not continue these dates. (Code Civ.Proc. §2024.020(b).)
15
(a) Except as otherwise provided in this chapter, any
16 party shall be entitled as a matter of right to complete discovery
proceedings on or before the 30th day, and to have motions conceming
17
discovery heard on or before the 15th day, before the date initially
18 set for the trial ofthe action.
(b) Except as provided in Section 2024.050, a continuance or
19 postponement ofthe trial date does not operate to reopen discovery
proceedings.
20
21 (Code Civ.Proc. §2024.020.)
22 The initial trial date in this case was May 11, 2009. (See Exhibit 1 hereto.) On May 11,
23 2009, the case was assigned to the Honorable Brian R. Van Camp. (Exh 2 hereto.) Thereafter,
24 the parties met with Judge Van Camp to arrange a trial date. (Declaration of Stephanie J. Finelli
25
["Finelli Decl."] at ^f 2.) That date was later continued, and the current trial date is now January
17, 2011. (Ibid.) However, such did not reopen discovery or continue the date on which parties
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were entitled to file discovery motions. (Code Civ.Proc. §2024.020(b).)
27
In fact, on July 20, 2009, this Court granted plaintiffs' motion to file an amended
28
complaint, and ordered that discovery was reopened "only to allow defendant Ruybalid an
Opposition to Motion to Compel - 2
1 opportunity to conduct discovery as to new claims asserted against him." (Exh 3 hereto.)
2 Defendant CA Construction did not seek reconsideration of that order; nor have they sought to
3 reopen discovery to allow them to file the instant motion. (Finelli Decl. at ^ 3.)
4 Since the instant discovery motion necessarily pertains to discovery conducted prior to
5
the filing ofthe amended complaint, it obviously does not come under the category of "discovery
as to new claims asserted against" Ruybalid dba CA Constraction. The last day on which
6
Ruybalid dba CA Constraction could have filed this motion was April 26, 2009. That counsel
7
did not realize he had not received verifications until May 1, 2009 does not entitle him to file this
8
motion a year and a half after the statutory time ran on which to file it. The law is clear that the
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burden is on the party propounding the discovery to enforce it; otherwise, the responding party
10 bears no penalty for inadequate responses. (Saxena v. Goffney (2008) 159 Cal.App.4th 316,
II 334, citing Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group
12 2 0 0 7 ) p : l 136, p 8F-59.)
13 Notably, the motion is also untimely given the trial date of January 17, 2011, as the
14 hearing is set for January 3, 2011—fewer than 15 days before even the new trial date.
15
Additionally, a motion to compel further responses to discovery responses must be made
within 45 days ofthe service ofthe response. (Code Civ.Proc. §§ 2030.300(c), 2031.310(c)
16
2033.290(c).) Notwithstanding the discovery cut-off date, given that the responses were served
17
on April 10, 2009, CA Constraction had until May 30, 2009 (assuming the responses were
18
served by mail) to file a motion.
19
This motion is untimely on three separate grounds and must be denied as such.
20
21 B. Moving Party Has not Met Its Burden of Showing Verifications Were Required
22 In support of the motion to compel, CA Constraction admits that plaintiffs served
23 responses to each of the discovery requests for which they seek to compel verifications. (See
24 page 5:4 to each ofthe Memoranda of Points & Authorities, admitting that each plaintiff "served
25
unverified responses on April 10, 2009.")
CA Construction has not provided this Court with copies of the unverified responses
26
Thus, this Court cannot ascertain whether the responses included only objections—which need
27
not be verified by the party—or substantive answers. But a response containing only objections
28
need not be verified. (See, e.g.. Code Civ.Proc. §§ 2030.250(a), 2033.240(a), 2031.250(a), ["The
Opposition to Motion to Compel - 3
I party to whom the demand for inspection, copying, testing, or sampling is directed shall sign the
2 response under oath unless the response contains only objections]; Food 4 Less Supermarkets
3 Inc V. Superior Court (1995) 40 Cal.App.4th 651, 657 ["There is absolutely no reason to require
4 a party to verify an objection."])
5
The moving party bears the burden of showing a legal basis for the relief sought. (See
Evid.Code §§ 500, 550.) Having failed to show that verifications were even required, CA
6
Construction has not shown a legal basis for granting the motion—even if it were not untimely.
7
8
C. Moving Party Has not Set Forth a Valid Statutory Basis for the Motion
9
In the notices of motion, moving party cites as the statutory basis for the motion "Code oi
10
Civil Procedure section 2033.290 et. seq." That section provides as follows:
11 (a) On receipt of a response to requests for admissions, the party requesting
admissions may move for an order compelling a further response if that party
12
deems that either or both ofthe following apply:
13 (1) An answer to a particular request is evasive or incomplete.
(2) An objection to a particular request is without merit or too general.
14 (b) A motion under subdivision (a) shall be accompanied by a meet and confer
declaration under Section 2016.040.
15
(c) Unless notice of this motion is given within 45 days of the service of the
16 response, or any supplemental response, or any specific later date to which the
requesting party and the responding party have agreed in writing, the requesting
17 party waives any right to compel further response to the requests for admission.
18
(d) The court shall impose a monetary sanction under Chapter 7 (commencing
with Section 2023.010) against any party, person, or attomey who unsuccessfully
19 makes or opposes a motion to compel further response, unless it finds that the one
subject to the sanction acted with substantial justification or that other
20 circumstances make the imposition ofthe sanction unjust.
21
(e) If a party then fails to obey an order compelling further response to requests
for admission, the court may order that the matters involved in the requests be
22 deemed admitted. In lieu of or in addition to this order, the court may impose a
monetary sanction under Chapter 7 (commencing with Section 2023.010).
23
24 (Code Civ.Proc. §2033.290.)
25 This statute does not provide a legal basis for compelling verified responses to the form
26 interrogatories or the requests for production of documents.
27 CA Constraction's request that this Court deem the requests for admissions admitted is
28
particularly problematic. Given their concession that plaintiffs served responses on April 10
2009, there is no legal basis for deeming any of the requests for admissions admitted. Section
Opposition to Motion to Compel - 4
1 2033.280 only pertains to a situation in which the responding party has failed to file a timely
2 response. Since the responses were due April 10, 2009 and were actually served that day (See
3 P&A at p. 5.4), there is simply no legal basis for deeming any ofthe requests admitted, and CA
4 Construction's motion to deem them admitted is patently frivolous.
5
D. The Lack of Verifications Does not Render the Objections Invalid
6
As noted above, CA Construction admits plaintiffs served responses to the discovery
7
requests at issue. (See P&A at p. 5:4.) Thus, plaintiffs have not failed to respond to the
8
discovery, and have not waived any objections. (See Food 4 Less Supermarkets. Inc. v. Superioi
9
Court (1995) 40 Cal.App.4th 651, 656-568, citing Blue Ridge Ins. Co. v. Superior Court (1988)
10 202 Cal.App.3d 339.) The Food 4 Less court stated,
II
Given our analysis, there is no need to verify that portion of the response
12
containing the objections. Thus, ifthe response is served within the statutory time
13 period, that portion ofthe response must be considered timely notwithstanding the
lack of verification. The omission of the verification in the portion of the
14 response containing fact-specific responses merely renders that portion of the
response untimely and therefore only creates a right to move for orders and
15
sanctions under subdivision (k) of section 2031 as to those responses but does not
16 result in a waiver ofthe objections made.
17 (Food 4 Less, supra at pp. 657-658, footnotes omitted.)
18 Thus, even assuming CA Construction's motion were timely, the relief sought
19 thereunder—an order compelling verified responses without objections, deeming admitted the
20 truth of the matters specified in the Requests for Admissions—would not be within the authority
21
ofthis Court to render.
22
E. Sanctions Are Warranted Against CA Construction and Its Counsel
23
In its moving papers, CA Constraction seeks monetary sanctions against plaintiffs and
24
their counsel in the total sum of $2,115.00. But CA Constraction had no valid basis for filing the
25
instant motion. It is not only untimely on three separate grounds; it does not even make a prima
26
facie showing that verifications were required; and it is based on law that applies when no
27 responses are served, even while admitting that responses were served on April 10, 2009.
28
Opposition to Motion to Compel - 5
Code ofCivil Procedure sections 2030.290(c), 2031.300(c), and 2033.280(c) all require
2 the imposition of sanctions against a party who unsuccessfully makes a motion to compel
3 discovery responses unless the court finds the party acted with substantial justification or othei
4 circumstances make the imposition of sanctions unjust. Here, CA Constraction and its counsel
had no legal basis for filing the instant motions. A cursory review of the statutes governing
5
discovery responses and motions to compel would have revealed not only the motion was
6
untimely, but that it was without legal merit. Counsel's failure to include the responses
7
themselves—either in the motion or in response to plaintiffs' request—only further demonstrates
8
knowledge ofthe lack of merit ofthe motions. (See Finelli Decl. at ^^j 4-5; Exh 4 hereto.)
9
Given the proximity ofthe trial date, the fact that CA Constraction's counsel has recently
10
filed 15 separate motions in limine, and plaintiffs' counsel is a sole practitioner who presumably
11 wants to spend the holidays doing something other than working, it could be theorized that this
12 meritless motion was filed only to burden plaintiffs. Regardless of motive, sanctions should be
13 awarded against both CA Construction and its counsel in the sum of $956.00 under Code ofCivil
14 Procedure sections 2030.290(c), 2031.300(c), and 2033.280(c) for the time and expense oi
having to prepare and file the instant response. (See Finelli Decl. at ff 6-7.)
15
16
HI. CONCLUSION
17
The motion to compel is untimely and without legal basis. The motion should be denied
18
as should CA Constraction's request for sanctions. Sanctions should be awarded to plaintiffs in
19
the sum of $956.00.
20
21 Dated: December 16, 2010 .
Stephanie J. FinelHT
22
Attomey for Plaintiffs
23 Florentine and Rodney Abbott
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25
26
27
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Opposition to Motion to Compel - 6
REQUEST FOR JUDICIAL NOTICE
2
Pursuant to Evidence Code section 452(d), Plaintiffs hereby request this Court take
3
judicial notice ofthe following documents:
4
1. Attached hereto as Exhibit 1 and incorporated herein by reference is a true and
5
correct copy of the Notice of Trial Date filed in this action on December 1, 2008, noticing the
6
trial for May 11,2009.
7 2. Attached hereto as Exhibit 2 and incorporated herein by reference is a true and
8 correct copy of a Minute Order filed in this Court on May 11,2009 in this case
9 3. Attached hereto as Exhibit 3 and incorporated herein by reference is a true and
10 correct copy ofa Minute Order filed in this Court on July 20, 2009 in this case
II
12
Dated: December 16,2010
13
phanie J. fviaeHi,
Attomey for Plaintiffs
14 Florentine and Rodney Abbott
15
16
17
DECLARATION OF STEPHANIE J. FINELLI
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1, Stephanie J. Finelli, hereby declare under penalty of perjury, and ifcalled as a witness,
19
would and competently testify as follows:
20
1. I am an attomey, duly licensed to practice in the State of California. I represent
21
plaintiffs Florentine and Rodney Abbott herein.
22
2. The initial trial date was May 11, 2009. On that day, this case was assigned to the
23
Honorable Brian R. Van Camp. Thereafter, the attomeys met with Judge Van Camp to arrange a
24
trial date That date was later continued, and the current trial date is January 17, 2011.
25
3. Defendant CA Constraction did not seek reconsideration ofthis court's July 20,
26
2009 order that only allowed a reopening of discovery to allow CA Construction to conduct
27
discovery as to the new allegations against him. Nor has CA Construction sought to reopen
28
discovery to allow them to file the instant motion.
Opposition to Motion to Compel - 7
4. On December 9, 2009 defendants CA Construction and R4Corp deposed plaintiffs
2 regarding the new allegations of the amended complaint, which deposition took place at the
3 office of attorneys for CA Construction. While I was at the office, I asked Gregory Federico
4 what responses he wanted verified by his motion, and asked him to get me a copy of them while
5 I was at his there He said he did not want to give me copies at that time, and that I could send
6 him a letter regarding the responses and ask for copies at a later time.
7 5. On December 14, 2009, at 2:57 p.m., I faxed a letter to Mr. Federico stating that
8 (1) discovery has been closed in the case and that the motion to compel was untimely, and (2) I
9 did not understand what responses he wanted verified, and requested that he provide me with
10 copies of those responses. Attached hereto as Exhibit 4 and incorporated herein by reference is
II a true and correct copy of this letter, along with the fax verification. As of 2.30 pm. on
12 December 16, 2010,1 have received no response to this letter.
13 6. I spent a minimum of .2 hour preparing my December 14, 2010 letter, and at least
14 another 4.5 hours reviewing the moving papers, performing legal research, and preparing the
15 instant opposition, including the request for judicial notice and my declaration. 1 anticipate
16 incurring at least $7.60 in postage to serve four copies of the opposition papers on all of the
17 parties in this case (4 x $1.90), plus at least another $8.40 in copying costs (14 pages x 6 copies
18 at $.10 per copy). At an hourly rate of $200.00, which is what I am charging plaintiffs in this
19 matter, my fees are $940.00 (4.7 x $200) and the costs are $16.00, for a total of $956.00.
20 7. The requested fees and costs are reasonable, as is my hourly rate. I am a 1994
21 graduate of the University of Califomia, Davis, School of Law. Since I became licensed to
22 practice law since December 1994,1 have practiced extensively in the area of civil litigation and
23 appeals. In my estimation, an attorney with my experience in the Sacramento area typically
24 charges at least—if not well over—$200.00 an hour for his or her services.
25 I declare under penalty of perjury under the laws of the State of Califomia the foregoing
26 IS true and correct.
27
Dated- December I h, 2010 ^
28
Stqjhanie J. Innelli
Opposition to Motion to Compel - 8
RLED
1 STEPHANIE J. FINELLI, SBN 173462 Superior Coun Of caUfismla,
Law Office of Stephanie J, Finelli Sacrarnento
2 1007 - 7th Street, Suite 500 Dttfirn'fi Jon«i&, EyucutiN^i
Sacramento, CA 95814
3 tel 916-443-2144 Officer
fax 916-443-1511 IZ/fft/ZOOS
4
atnacfas
Attomey for Plaintiffs,
5
RODNEY AND FLORENTINE ABBOTT By. I deputy
Case Numbur
6
7 IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
8 IN AND FOR THE COUNTY OF SACRAMENTO
9
10 RODNEY ABBOTT, FLORENTINE CaseNo.:07AS04450
ABBOTT,
II NOTICE OF TRIAL DATE
U Plaintiffs,
13 vs.
14 RONALD PAUL BRITSCHGI, et. al..
15 Defendants
16
17 and related cross-actions
18
19 TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD
20 NOTICE IS HEREBY GIVEN that die tiial ofthis matter is set for May 11, 2009 at 8:30
21 a.m. in Dept. 47. The mandatory settlement conference will be held on April 2, 2009 at 1:30
22 p.m. in Dept 57.
23
24 Dated: November 26,2008
Stephanie J. Flnelfi^
25 Attomey for Plaintiffs
26
27
28
Notice of Trial Date-1
&yU|
PERIOR COURT OF CALIFORNIA^
COUNTY OF SACRAMENTO ^
GORDON D SCHABER COURTHOUSE
MINUTE ORDER
Date. 05/11/2009 Time: 08:30:00 AM Dept: 47
Judicial Officer Presiding: Judge Lloyd Connelly
Clerk. C. Clausen
Bailiff/Court Attendant: L. Payne
ERM:
Case Init. Date: 11/10/2007
Case No: 07AS04450 Case Title: RODNEY ABBOTT. ET AL VS. RONALD PAUL
BRITSCHGI. ETAL
Case Category: Civil - Unlimited
Event Type- Civil Trial Assignment - Long Cause - Civil Trial Assignment
Causal Document & Date Filed:
Appearances:
Stephanie Finelli, Atty for PIntf.
Graig Lundgren, Atty for Deft.
Todd Jones, Atty for Deft.
Richard Sopp, Atty for Deft.
The above-entitled matter came on this day for trial assignment with the above-named counsel/parties
present.
This matter was pre-signed to Department 58, Honorable Brian R. Van Camp presiding.
Counsels were instructed to report to said department on May 13, 2009 at 8:45 a.m. for discussion on
pre-tnal matters.
Date: 05/11/2009 MINUTE ORDER
gx-U2> Page: 1
Dept: 47 Calendar No :
PERIOR COURT OF CALIFORNIA
COUNTY OF SACRAMENTO
GORDON D SCHABER COURTHOUSE
MINUTE ORDER
Date: 07/20/2009 Time: 09:00:00 AM Dept: 54
Judicial Officer Presiding: Judge Shelleyanne W L Chang
Clerk: J. Hart
Bailiff/Court Attendant: None
ERM- None
Case Init. Date: 11/10/2007
Case No: 07AS04450 Case Title: RODNEY ABBOTT. ET AL VS. RONALD PAUL
BRITSCHGI. ETAL
Case Category: Civil - Unlimited
Event Type: Motion to File Amended Complaint - Civil Law and Motion
Moving Party: RodneyAbbott
Causal Document & Date Filed:Motion - Other, 06/24/2009
Appearances:
Nature of Proceeding: Motion for Leave to File Amended Complaint
TENTATIVE RULING
Plaintiffs' motion for leave to file first amended complaint is granted. Leave to amend is liberally granted,
and defendant has not shown undue delay and prejudice sufficient to warrant denial of the motion.
Defendant Ruybalid's request to limit any further discovery to the new claims asserted in the amended
complaint is granted. Discovery is hereby reopened only to allow defendant Ruybalid an opportunity to
conduct discovery as to new claims asserted against him. As discovery remains closed otherwise,
plaintiff may not take the depositions of defendant's experts without obtaining leave of court to reopen
discovery for that purpose. The Court declines to require plaintiff to pay defendant's cost to depose
plaintiffs experts as a condition for granting leave to amend
Plaintiff shall file and serve the first amended complaint on the current defendants no later than July 30,
2009.
The minute order is effective immediately. No formal order pursuant to CRC Rule 3.1312 or further
notice is required.
COURT RULING
There being no request for oral argument, the Court affirmed the tentative ruling.
Date: 07/20/2009 MINUTE ORDER
&v\l. Page: 1
Dept: 54 Calendar No.:
_^tv O f f i c e of S t e p h a n i e J. Finexxi
1007 Seventh Street, Suite 500
Sacramento, California 95814
Tel (916) 443-2144
Fax (916) 443-1511
December 14, 2010
Gregory Federico
Archer Norris
301 University Ave., Suite 110
Sacramento, CA 95825
via fax only 916-646-5696
Re: Abbott v. Britschgi, et. al., Sacramento County case no. 07AS04450
Dear Mr. Federico:
I write regarding your motions to compel, which you have set for hearing on
January 3, 2011.
First, discovery has been closed in this case for some time now. The court only
permitted a limited reopening of discovery for the purposes of addressing the new
allegations of the amended complaint. Your motion seeks to compel verifications to
responses that were apparently provided before the first trial date in this case. As such,
your motion is untimely.
Second, I am at a loss to ascertain what responses you would like verified. Would
you please provide me with the responses my clients provided and which are the subject
of your motion to compel? This would greatly assist me in determining how to respond
to the merits of your motion and/or whether further responses and/or verifications are
warranted.
Sincerely.
Stephanie J. Finelli
B<\^^
1 ^
fRANSMISSION VERIFICATION REPORT i
TIME 12/14/2010 14:58
NAME LAW OFFICES
FAX 9164431511
TEL 9164431504
SER.H BR0L7J729626
DATE,TIME 12/14 14:57
FAX NO./NAME 6465696
DURATION 00:00:16
PAGE(S) 01
RESULT OK
MODE STANDARD
ECM
Law Office of Stephanie J. Finelli
1007 Seventh Street, Suite 500
Sacramento, California 95814
Tel (9116) 443-2144
Fax (9'Jl6) 443-1511
December 14,2010
Gregoty Federico
Archer Norris
301 University Ave., Suite 110
Sacramento, CA 95825
via fax onfy 916-646-5696
Re: Abbott v. Britschgi. et. aU, Sacramento County case no. 07AS04450
Dear Mr. Federico:
I write regarding your motions to compel, which you have set for hearing on
.Tanuaty3, 2011.
First, discovery has been closed in this case for some time now. The court only
permitted a limited reopening of discovery for the puiposes of addressing the new
allegations of tlie amended complaint. Your motion seeks to compel verifications to
responses that were apparently provided before the tirst trial date in this case. As such,
your motion is untimely.
Second, I am at a loss to ascertain what responses you would like verified. Would
you please provide me with the responses ray clients provided and which are the subject
of your motion to compel? This would greatly assist me in deteirnining how to respond
to tlie merits of your motion and/or whether further responses and/or verifications are
waiTanted,
PROOF OF SERVICE BY MAIL
CASE NAME: Abbott v. Britschgi
CASE NUMBER: Sacramento County Superior Court 07AS04450
I declare that:
I am a citizen ofthe United States and a resident ofthe County of Sacramento. I am,
and at alltimesmentioned herein was, an active member ofthe State Bar of Califomia and
not a party to the above-entitied cause. My business address is 1007 Seventh Stteet, Suite
500, Sacramento, Califomia 95814.
On December 16,2010, pursuantto CCP §1013A(2), I servedtiiefollowing:
COMBINED OPPOSITION BY PLAINTIFFS FLORENTINE AND RODNEY
ABBOTT TO MOTION TO COMPEL VERIFIED RESPONSES; REQUEST FOR
JUDICIAL NOTICE; DECLARATION OF STEPHANIE J. FINELLI
BY MAIL: by depositing a copy of said document in the United States mail in Sacramento,
Califomia, in a sealed envelope, with postage fully prepaid, addressed as follows:
Gregory Federico
Archer Norris
301 University Ave., Suite 110
Sacramento, CA 95825
Richard Sopp
Maloney, Wheatley, Sopp & Brooks
1004 Moon River Rock Drive, Suite 245
Folsom, CA 95630
Mark Smith
8549 Willow Valley Place
Granite Bay, CA 95746
Richard W. Freeman, Jr.
Wood, Smith, Henning & Berman
1401 Willow Pass Road, Suite 700
Concord, CA 94520-7982
I declare under penalty of perjury under the la;^s of th,e State of Califomia the
foregoing is trae and correct
Dated: December 16,2010
Stephanie
Preview
1 STEPHANIE J. FINELLI, SBN 173462 Law Office of Stephanie J. Finelli FILED ENDORS ED ! 2 1007-7th Street, Suite 500 Sacramento, CA 95814 3 tel 916-443-2144 fax 916-443-1511 DEC 1 6 2010 4 Attorney for Plaintiffs, L KENNEDY 5 FLORENTINE and RODNEY ABBOTT DEPUn CLEHK 6 7 IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA 8 IN AND FOR THE COUNTY OF SACRAMENTO 9 10 FLORENTINE AND RODNEY ABBOTT, CaseNo.: 07AS04450 11 Plaintiffs, COMBINED OPPOSITION BY 12 PLAINTIFFS FLORENTINE AND vs. RODNEY ABBOTT TO MOTION TO 13 COMPEL VERIFIED RESPONSES; RONALD BRITSCHGI, et. al.. REQUEST FOR JUDICIAL NOTICE; 14 DECLARATION OF STEPHANIE J. Defendants FINELLI 15 16 Date: January 3, 2011 and related cross-actions Time: 2:00 p.m. 17 Dept: 53 18 Trial Date: January 17, 2011 19 I. INTRODUCTION 20 Plaintiffs Florentine and Rodney Abbott present this combined Opposition to the two 21 separate motions to compel. Because the motions are virtually identical, in the interests ol 22 judicial economy, plaintiffs present a combined opposition. 23 The motion is meritless and even frivolous. First, it is untimely by well over a year. The 24 initial trial date in this case was May 11, 2009. Discovery thus closed on April 11, 2009, and the 25 last day to hear any discovery motions was April 26, 2009. But counsel for Ruybalid/CA 26 Construction did not even meet and confer on the issue of the missing verifications until May 4, 27 2009, and this motion is brought a year and a half later. Although plaintiffs' counsel has 28 informed CA Construction's attomey that the motion was untimely, it has not been withdrawn. Opposition to Motion to Compel - 1 1 Additionally, moving party concedes that plaintiffs responded to the discovery requests; 2 their only complaint is that the responses did not include verifications. But moving party has not 3 provided this Court with copies ofthe responses showing that they contain answers in addition to 4 objections. And the assertion that the lack of verifications somehow operates to nullify the 5 objections contained therein is patently contrary to law. And moving party has not set forth a 6 valid legal basis for compelling the relief sought. 7 The motion must be denied and sanctions should be awarded to plaintiffs for having to 8 respond to a baseless, patently untimely motion. 9 10 II. LEGAL ARGUMENT II A. The Motion Is Untimely 12 The law is clear: discovery cuts off 30 days before trial, and any discovery motions must 13 be heard within 15 days before trial. (Code Civ.Proc. §2024.020(a).) A continuance ofthe tiial 14 does not continue these dates. (Code Civ.Proc. §2024.020(b).) 15 (a) Except as otherwise provided in this chapter, any 16 party shall be entitled as a matter of right to complete discovery proceedings on or before the 30th day, and to have motions conceming 17 discovery heard on or before the 15th day, before the date initially 18 set for the trial ofthe action. (b) Except as provided in Section 2024.050, a continuance or 19 postponement ofthe trial date does not operate to reopen discovery proceedings. 20 21 (Code Civ.Proc. §2024.020.) 22 The initial trial date in this case was May 11, 2009. (See Exhibit 1 hereto.) On May 11, 23 2009, the case was assigned to the Honorable Brian R. Van Camp. (Exh 2 hereto.) Thereafter, 24 the parties met with Judge Van Camp to arrange a trial date. (Declaration of Stephanie J. Finelli 25 ["Finelli Decl."] at ^f 2.) That date was later continued, and the current trial date is now January 17, 2011. (Ibid.) However, such did not reopen discovery or continue the date on which parties 26 were entitled to file discovery motions. (Code Civ.Proc. §2024.020(b).) 27 In fact, on July 20, 2009, this Court granted plaintiffs' motion to file an amended 28 complaint, and ordered that discovery was reopened "only to allow defendant Ruybalid an Opposition to Motion to Compel - 2 1 opportunity to conduct discovery as to new claims asserted against him." (Exh 3 hereto.) 2 Defendant CA Construction did not seek reconsideration of that order; nor have they sought to 3 reopen discovery to allow them to file the instant motion. (Finelli Decl. at ^ 3.) 4 Since the instant discovery motion necessarily pertains to discovery conducted prior to 5 the filing ofthe amended complaint, it obviously does not come under the category of "discovery as to new claims asserted against" Ruybalid dba CA Constraction. The last day on which 6 Ruybalid dba CA Constraction could have filed this motion was April 26, 2009. That counsel 7 did not realize he had not received verifications until May 1, 2009 does not entitle him to file this 8 motion a year and a half after the statutory time ran on which to file it. The law is clear that the 9 burden is on the party propounding the discovery to enforce it; otherwise, the responding party 10 bears no penalty for inadequate responses. (Saxena v. Goffney (2008) 159 Cal.App.4th 316, II 334, citing Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 12 2 0 0 7 ) p : l 136, p 8F-59.) 13 Notably, the motion is also untimely given the trial date of January 17, 2011, as the 14 hearing is set for January 3, 2011—fewer than 15 days before even the new trial date. 15 Additionally, a motion to compel further responses to discovery responses must be made within 45 days ofthe service ofthe response. (Code Civ.Proc. §§ 2030.300(c), 2031.310(c) 16 2033.290(c).) Notwithstanding the discovery cut-off date, given that the responses were served 17 on April 10, 2009, CA Constraction had until May 30, 2009 (assuming the responses were 18 served by mail) to file a motion. 19 This motion is untimely on three separate grounds and must be denied as such. 20 21 B. Moving Party Has not Met Its Burden of Showing Verifications Were Required 22 In support of the motion to compel, CA Constraction admits that plaintiffs served 23 responses to each of the discovery requests for which they seek to compel verifications. (See 24 page 5:4 to each ofthe Memoranda of Points & Authorities, admitting that each plaintiff "served 25 unverified responses on April 10, 2009.") CA Construction has not provided this Court with copies of the unverified responses 26 Thus, this Court cannot ascertain whether the responses included only objections—which need 27 not be verified by the party—or substantive answers. But a response containing only objections 28 need not be verified. (See, e.g.. Code Civ.Proc. §§ 2030.250(a), 2033.240(a), 2031.250(a), ["The Opposition to Motion to Compel - 3 I party to whom the demand for inspection, copying, testing, or sampling is directed shall sign the 2 response under oath unless the response contains only objections]; Food 4 Less Supermarkets 3 Inc V. Superior Court (1995) 40 Cal.App.4th 651, 657 ["There is absolutely no reason to require 4 a party to verify an objection."]) 5 The moving party bears the burden of showing a legal basis for the relief sought. (See Evid.Code §§ 500, 550.) Having failed to show that verifications were even required, CA 6 Construction has not shown a legal basis for granting the motion—even if it were not untimely. 7 8 C. Moving Party Has not Set Forth a Valid Statutory Basis for the Motion 9 In the notices of motion, moving party cites as the statutory basis for the motion "Code oi 10 Civil Procedure section 2033.290 et. seq." That section provides as follows: 11 (a) On receipt of a response to requests for admissions, the party requesting admissions may move for an order compelling a further response if that party 12 deems that either or both ofthe following apply: 13 (1) An answer to a particular request is evasive or incomplete. (2) An objection to a particular request is without merit or too general. 14 (b) A motion under subdivision (a) shall be accompanied by a meet and confer declaration under Section 2016.040. 15 (c) Unless notice of this motion is given within 45 days of the service of the 16 response, or any supplemental response, or any specific later date to which the requesting party and the responding party have agreed in writing, the requesting 17 party waives any right to compel further response to the requests for admission. 18 (d) The court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) against any party, person, or attomey who unsuccessfully 19 makes or opposes a motion to compel further response, unless it finds that the one subject to the sanction acted with substantial justification or that other 20 circumstances make the imposition ofthe sanction unjust. 21 (e) If a party then fails to obey an order compelling further response to requests for admission, the court may order that the matters involved in the requests be 22 deemed admitted. In lieu of or in addition to this order, the court may impose a monetary sanction under Chapter 7 (commencing with Section 2023.010). 23 24 (Code Civ.Proc. §2033.290.) 25 This statute does not provide a legal basis for compelling verified responses to the form 26 interrogatories or the requests for production of documents. 27 CA Constraction's request that this Court deem the requests for admissions admitted is 28 particularly problematic. Given their concession that plaintiffs served responses on April 10 2009, there is no legal basis for deeming any of the requests for admissions admitted. Section Opposition to Motion to Compel - 4 1 2033.280 only pertains to a situation in which the responding party has failed to file a timely 2 response. Since the responses were due April 10, 2009 and were actually served that day (See 3 P&A at p. 5.4), there is simply no legal basis for deeming any ofthe requests admitted, and CA 4 Construction's motion to deem them admitted is patently frivolous. 5 D. The Lack of Verifications Does not Render the Objections Invalid 6 As noted above, CA Construction admits plaintiffs served responses to the discovery 7 requests at issue. (See P&A at p. 5:4.) Thus, plaintiffs have not failed to respond to the 8 discovery, and have not waived any objections. (See Food 4 Less Supermarkets. Inc. v. Superioi 9 Court (1995) 40 Cal.App.4th 651, 656-568, citing Blue Ridge Ins. Co. v. Superior Court (1988) 10 202 Cal.App.3d 339.) The Food 4 Less court stated, II Given our analysis, there is no need to verify that portion of the response 12 containing the objections. Thus, ifthe response is served within the statutory time 13 period, that portion ofthe response must be considered timely notwithstanding the lack of verification. The omission of the verification in the portion of the 14 response containing fact-specific responses merely renders that portion of the response untimely and therefore only creates a right to move for orders and 15 sanctions under subdivision (k) of section 2031 as to those responses but does not 16 result in a waiver ofthe objections made. 17 (Food 4 Less, supra at pp. 657-658, footnotes omitted.) 18 Thus, even assuming CA Construction's motion were timely, the relief sought 19 thereunder—an order compelling verified responses without objections, deeming admitted the 20 truth of the matters specified in the Requests for Admissions—would not be within the authority 21 ofthis Court to render. 22 E. Sanctions Are Warranted Against CA Construction and Its Counsel 23 In its moving papers, CA Constraction seeks monetary sanctions against plaintiffs and 24 their counsel in the total sum of $2,115.00. But CA Constraction had no valid basis for filing the 25 instant motion. It is not only untimely on three separate grounds; it does not even make a prima 26 facie showing that verifications were required; and it is based on law that applies when no 27 responses are served, even while admitting that responses were served on April 10, 2009. 28 Opposition to Motion to Compel - 5 Code ofCivil Procedure sections 2030.290(c), 2031.300(c), and 2033.280(c) all require 2 the imposition of sanctions against a party who unsuccessfully makes a motion to compel 3 discovery responses unless the court finds the party acted with substantial justification or othei 4 circumstances make the imposition of sanctions unjust. Here, CA Constraction and its counsel had no legal basis for filing the instant motions. A cursory review of the statutes governing 5 discovery responses and motions to compel would have revealed not only the motion was 6 untimely, but that it was without legal merit. Counsel's failure to include the responses 7 themselves—either in the motion or in response to plaintiffs' request—only further demonstrates 8 knowledge ofthe lack of merit ofthe motions. (See Finelli Decl. at ^^j 4-5; Exh 4 hereto.) 9 Given the proximity ofthe trial date, the fact that CA Constraction's counsel has recently 10 filed 15 separate motions in limine, and plaintiffs' counsel is a sole practitioner who presumably 11 wants to spend the holidays doing something other than working, it could be theorized that this 12 meritless motion was filed only to burden plaintiffs. Regardless of motive, sanctions should be 13 awarded against both CA Construction and its counsel in the sum of $956.00 under Code ofCivil 14 Procedure sections 2030.290(c), 2031.300(c), and 2033.280(c) for the time and expense oi having to prepare and file the instant response. (See Finelli Decl. at ff 6-7.) 15 16 HI. CONCLUSION 17 The motion to compel is untimely and without legal basis. The motion should be denied 18 as should CA Constraction's request for sanctions. Sanctions should be awarded to plaintiffs in 19 the sum of $956.00. 20 21 Dated: December 16, 2010 . Stephanie J. FinelHT 22 Attomey for Plaintiffs 23 Florentine and Rodney Abbott 24 25 26 27 28 Opposition to Motion to Compel - 6 REQUEST FOR JUDICIAL NOTICE 2 Pursuant to Evidence Code section 452(d), Plaintiffs hereby request this Court take 3 judicial notice ofthe following documents: 4 1. Attached hereto as Exhibit 1 and incorporated herein by reference is a true and 5 correct copy of the Notice of Trial Date filed in this action on December 1, 2008, noticing the 6 trial for May 11,2009. 7 2. Attached hereto as Exhibit 2 and incorporated herein by reference is a true and 8 correct copy of a Minute Order filed in this Court on May 11,2009 in this case 9 3. Attached hereto as Exhibit 3 and incorporated herein by reference is a true and 10 correct copy ofa Minute Order filed in this Court on July 20, 2009 in this case II 12 Dated: December 16,2010 13 phanie J. fviaeHi, Attomey for Plaintiffs 14 Florentine and Rodney Abbott 15 16 17 DECLARATION OF STEPHANIE J. FINELLI 18 1, Stephanie J. Finelli, hereby declare under penalty of perjury, and ifcalled as a witness, 19 would and competently testify as follows: 20 1. I am an attomey, duly licensed to practice in the State of California. I represent 21 plaintiffs Florentine and Rodney Abbott herein. 22 2. The initial trial date was May 11, 2009. On that day, this case was assigned to the 23 Honorable Brian R. Van Camp. Thereafter, the attomeys met with Judge Van Camp to arrange a 24 trial date That date was later continued, and the current trial date is January 17, 2011. 25 3. Defendant CA Constraction did not seek reconsideration ofthis court's July 20, 26 2009 order that only allowed a reopening of discovery to allow CA Construction to conduct 27 discovery as to the new allegations against him. Nor has CA Construction sought to reopen 28 discovery to allow them to file the instant motion. Opposition to Motion to Compel - 7 4. On December 9, 2009 defendants CA Construction and R4Corp deposed plaintiffs 2 regarding the new allegations of the amended complaint, which deposition took place at the 3 office of attorneys for CA Construction. While I was at the office, I asked Gregory Federico 4 what responses he wanted verified by his motion, and asked him to get me a copy of them while 5 I was at his there He said he did not want to give me copies at that time, and that I could send 6 him a letter regarding the responses and ask for copies at a later time. 7 5. On December 14, 2009, at 2:57 p.m., I faxed a letter to Mr. Federico stating that 8 (1) discovery has been closed in the case and that the motion to compel was untimely, and (2) I 9 did not understand what responses he wanted verified, and requested that he provide me with 10 copies of those responses. Attached hereto as Exhibit 4 and incorporated herein by reference is II a true and correct copy of this letter, along with the fax verification. As of 2.30 pm. on 12 December 16, 2010,1 have received no response to this letter. 13 6. I spent a minimum of .2 hour preparing my December 14, 2010 letter, and at least 14 another 4.5 hours reviewing the moving papers, performing legal research, and preparing the 15 instant opposition, including the request for judicial notice and my declaration. 1 anticipate 16 incurring at least $7.60 in postage to serve four copies of the opposition papers on all of the 17 parties in this case (4 x $1.90), plus at least another $8.40 in copying costs (14 pages x 6 copies 18 at $.10 per copy). At an hourly rate of $200.00, which is what I am charging plaintiffs in this 19 matter, my fees are $940.00 (4.7 x $200) and the costs are $16.00, for a total of $956.00. 20 7. The requested fees and costs are reasonable, as is my hourly rate. I am a 1994 21 graduate of the University of Califomia, Davis, School of Law. Since I became licensed to 22 practice law since December 1994,1 have practiced extensively in the area of civil litigation and 23 appeals. In my estimation, an attorney with my experience in the Sacramento area typically 24 charges at least—if not well over—$200.00 an hour for his or her services. 25 I declare under penalty of perjury under the laws of the State of Califomia the foregoing 26 IS true and correct. 27 Dated- December I h, 2010 ^ 28 Stqjhanie J. Innelli Opposition to Motion to Compel - 8 RLED 1 STEPHANIE J. FINELLI, SBN 173462 Superior Coun Of caUfismla, Law Office of Stephanie J, Finelli Sacrarnento 2 1007 - 7th Street, Suite 500 Dttfirn'fi Jon«i&, EyucutiN^i Sacramento, CA 95814 3 tel 916-443-2144 Officer fax 916-443-1511 IZ/fft/ZOOS 4 atnacfas Attomey for Plaintiffs, 5 RODNEY AND FLORENTINE ABBOTT By. I deputy Case Numbur 6 7 IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA 8 IN AND FOR THE COUNTY OF SACRAMENTO 9 10 RODNEY ABBOTT, FLORENTINE CaseNo.:07AS04450 ABBOTT, II NOTICE OF TRIAL DATE U Plaintiffs, 13 vs. 14 RONALD PAUL BRITSCHGI, et. al.. 15 Defendants 16 17 and related cross-actions 18 19 TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD 20 NOTICE IS HEREBY GIVEN that die tiial ofthis matter is set for May 11, 2009 at 8:30 21 a.m. in Dept. 47. The mandatory settlement conference will be held on April 2, 2009 at 1:30 22 p.m. in Dept 57. 23 24 Dated: November 26,2008 Stephanie J. Flnelfi^ 25 Attomey for Plaintiffs 26 27 28 Notice of Trial Date-1 &yU| PERIOR COURT OF CALIFORNIA^ COUNTY OF SACRAMENTO ^ GORDON D SCHABER COURTHOUSE MINUTE ORDER Date. 05/11/2009 Time: 08:30:00 AM Dept: 47 Judicial Officer Presiding: Judge Lloyd Connelly Clerk. C. Clausen Bailiff/Court Attendant: L. Payne ERM: Case Init. Date: 11/10/2007 Case No: 07AS04450 Case Title: RODNEY ABBOTT. ET AL VS. RONALD PAUL BRITSCHGI. ETAL Case Category: Civil - Unlimited Event Type- Civil Trial Assignment - Long Cause - Civil Trial Assignment Causal Document & Date Filed: Appearances: Stephanie Finelli, Atty for PIntf. Graig Lundgren, Atty for Deft. Todd Jones, Atty for Deft. Richard Sopp, Atty for Deft. The above-entitled matter came on this day for trial assignment with the above-named counsel/parties present. This matter was pre-signed to Department 58, Honorable Brian R. Van Camp presiding. Counsels were instructed to report to said department on May 13, 2009 at 8:45 a.m. for discussion on pre-tnal matters. Date: 05/11/2009 MINUTE ORDER gx-U2> Page: 1 Dept: 47 Calendar No : PERIOR COURT OF CALIFORNIA COUNTY OF SACRAMENTO GORDON D SCHABER COURTHOUSE MINUTE ORDER Date: 07/20/2009 Time: 09:00:00 AM Dept: 54 Judicial Officer Presiding: Judge Shelleyanne W L Chang Clerk: J. Hart Bailiff/Court Attendant: None ERM- None Case Init. Date: 11/10/2007 Case No: 07AS04450 Case Title: RODNEY ABBOTT. ET AL VS. RONALD PAUL BRITSCHGI. ETAL Case Category: Civil - Unlimited Event Type: Motion to File Amended Complaint - Civil Law and Motion Moving Party: RodneyAbbott Causal Document & Date Filed:Motion - Other, 06/24/2009 Appearances: Nature of Proceeding: Motion for Leave to File Amended Complaint TENTATIVE RULING Plaintiffs' motion for leave to file first amended complaint is granted. Leave to amend is liberally granted, and defendant has not shown undue delay and prejudice sufficient to warrant denial of the motion. Defendant Ruybalid's request to limit any further discovery to the new claims asserted in the amended complaint is granted. Discovery is hereby reopened only to allow defendant Ruybalid an opportunity to conduct discovery as to new claims asserted against him. As discovery remains closed otherwise, plaintiff may not take the depositions of defendant's experts without obtaining leave of court to reopen discovery for that purpose. The Court declines to require plaintiff to pay defendant's cost to depose plaintiffs experts as a condition for granting leave to amend Plaintiff shall file and serve the first amended complaint on the current defendants no later than July 30, 2009. The minute order is effective immediately. No formal order pursuant to CRC Rule 3.1312 or further notice is required. COURT RULING There being no request for oral argument, the Court affirmed the tentative ruling. Date: 07/20/2009 MINUTE ORDER &v\l. Page: 1 Dept: 54 Calendar No.: _^tv O f f i c e of S t e p h a n i e J. Finexxi 1007 Seventh Street, Suite 500 Sacramento, California 95814 Tel (916) 443-2144 Fax (916) 443-1511 December 14, 2010 Gregory Federico Archer Norris 301 University Ave., Suite 110 Sacramento, CA 95825 via fax only 916-646-5696 Re: Abbott v. Britschgi, et. al., Sacramento County case no. 07AS04450 Dear Mr. Federico: I write regarding your motions to compel, which you have set for hearing on January 3, 2011. First, discovery has been closed in this case for some time now. The court only permitted a limited reopening of discovery for the purposes of addressing the new allegations of the amended complaint. Your motion seeks to compel verifications to responses that were apparently provided before the first trial date in this case. As such, your motion is untimely. Second, I am at a loss to ascertain what responses you would like verified. Would you please provide me with the responses my clients provided and which are the subject of your motion to compel? This would greatly assist me in determining how to respond to the merits of your motion and/or whether further responses and/or verifications are warranted. Sincerely. Stephanie J. Finelli B<\^^ 1 ^ fRANSMISSION VERIFICATION REPORT i TIME 12/14/2010 14:58 NAME LAW OFFICES FAX 9164431511 TEL 9164431504 SER.H BR0L7J729626 DATE,TIME 12/14 14:57 FAX NO./NAME 6465696 DURATION 00:00:16 PAGE(S) 01 RESULT OK MODE STANDARD ECM Law Office of Stephanie J. Finelli 1007 Seventh Street, Suite 500 Sacramento, California 95814 Tel (9116) 443-2144 Fax (9'Jl6) 443-1511 December 14,2010 Gregoty Federico Archer Norris 301 University Ave., Suite 110 Sacramento, CA 95825 via fax onfy 916-646-5696 Re: Abbott v. Britschgi. et. aU, Sacramento County case no. 07AS04450 Dear Mr. Federico: I write regarding your motions to compel, which you have set for hearing on .Tanuaty3, 2011. First, discovery has been closed in this case for some time now. The court only permitted a limited reopening of discovery for the puiposes of addressing the new allegations of tlie amended complaint. Your motion seeks to compel verifications to responses that were apparently provided before the tirst trial date in this case. As such, your motion is untimely. Second, I am at a loss to ascertain what responses you would like verified. Would you please provide me with the responses ray clients provided and which are the subject of your motion to compel? This would greatly assist me in deteirnining how to respond to tlie merits of your motion and/or whether further responses and/or verifications are waiTanted, PROOF OF SERVICE BY MAIL CASE NAME: Abbott v. Britschgi CASE NUMBER: Sacramento County Superior Court 07AS04450 I declare that: I am a citizen ofthe United States and a resident ofthe County of Sacramento. I am, and at alltimesmentioned herein was, an active member ofthe State Bar of Califomia and not a party to the above-entitied cause. My business address is 1007 Seventh Stteet, Suite 500, Sacramento, Califomia 95814. On December 16,2010, pursuantto CCP §1013A(2), I servedtiiefollowing: COMBINED OPPOSITION BY PLAINTIFFS FLORENTINE AND RODNEY ABBOTT TO MOTION TO COMPEL VERIFIED RESPONSES; REQUEST FOR JUDICIAL NOTICE; DECLARATION OF STEPHANIE J. FINELLI BY MAIL: by depositing a copy of said document in the United States mail in Sacramento, Califomia, in a sealed envelope, with postage fully prepaid, addressed as follows: Gregory Federico Archer Norris 301 University Ave., Suite 110 Sacramento, CA 95825 Richard Sopp Maloney, Wheatley, Sopp & Brooks 1004 Moon River Rock Drive, Suite 245 Folsom, CA 95630 Mark Smith 8549 Willow Valley Place Granite Bay, CA 95746 Richard W. Freeman, Jr. Wood, Smith, Henning & Berman 1401 Willow Pass Road, Suite 700 Concord, CA 94520-7982 I declare under penalty of perjury under the la;^s of th,e State of Califomia the foregoing is trae and correct Dated: December 16,2010 Stephanie