Preview
Richard Abel
2222 Cleveland Avenue, Apt. 1002
Santa Rosa, CA 95403
Telephone: (707) 340-3894
Plaintiff, in pro per
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF SONOMA
10
li RICHARD ABEL, an individual; Case Number: SCV-263456
12
Plaintiff; PLAINTIFF'S REQUEST FOR JUDICIAL
13 Vv.
NOTICE IN SUPPORT OF PLAINTIFF'S
OPPOSITION TO MOTION TO ENFORCE
14 SETTLEMENT AGREEMENT
B. EDWARD McCUTCHAN JR. an
15 individual; SUNDERLAND/McCUTCHAN,
LLP, a general partnership; and DOES 1 Date: November 22, 2023
16
through 100, inclusive; Time: 3:00 p.m.
17 Dept: 18 - Hon. Christopher Honigsberg|
Defendants.
18
19
TO THE COURT, AND ALL PARTIES AND THEIR ATTORNEYS OF RECORD:
20
Plaintiff Richard Abel (Plaintiff) hereby respectfully requests that the Court take
21
Judicial Notice pursuant to California Evidence Code sections 452 and 453 of the following
22
court records in support of Plaintiff's opposition to Motion to Enforce Settlement Agreement:
23
Exhibit A Minute Order by the Court entered on June 6, 2023 for the Judicial Settlement
24
Conference in Sonoma County Superior Court Case no. SCV-263456.
25
ExhibitB Ruling Issued on Submitted Matter, entered on March 13, 2023 in Sonoma
26
County Superior Court Case no. SCV-263456.
27
28
November 5, 2023 (thal! he?
Richard Abel, Plaintiff, in pro per
PLAINTIFF'S REQUEST FOR JUDICIAL NOTICE
1
Exhibit "AY
Exhibit "A"
BURTS,
SS
Superior Court of California, County of Sonoma
faeSS as
oo
MINUTE ORDERS
Fae
SCV-263456
ABEL VS MCCUTCHAN, JR
Date of Hearing: June 06, 2023 Settlement Conference
Time: 9:00 AM Courtroom 18
Judicial Officer: Rene A Chouteau Courtroom Clerk: Elizabeth Maldonado
Pro Tem Court Reporter: Tami Carlson
CSR: 125555
Parties Present:
ABEL, RICHARD Plaintiff
MCCUTCHAN, B. EDWARD, JR Defendant/Attorney for Defendants
PICCHI, JOSEPH S Attorney for Defendant, Edward McCutchan
Judicial Settlement Conference
At 10:18 a.m., the matter is called.
Appearances are stated.
Court states the parties have reached a settlement agreement and announces the terms.
Court voir dires parties regarding Settlement Agreement terms.
Court FINDS the Settlement Agreement has been entered into knowingly, voluntarily and
without coercion.
Court ORDERS the following:
All future hearings are VACATED.
Sanctions against Plaintiff, Richard Abel are VACATED.
Plaintiff shall file Notice of Settlement.
-End of Minute Order-
Next Hearing(s) - Information current as of June 06, 2023:
CANCELED: June 07, 2023 3:00 PM CANCELED: August 09, 2023 3:00 PM
Discovery Motion Vacate
CANCELED: June 07, 2023 3:00 PM CANCELED: September 13, 2023 3:00 PM.
Motion to Compel Summary Judgment
CANCELED: August 09, 2023 3:00 PM CANCELED: January 05, 2024 8:30 AM
Demurrer / Motion to Strike Jury Trial
For more information please contact the Clerk's Office at (707) 524-6500 during official business hours.
Wy SONOMA COUFTS.ceL, ZOU
Generated: 6/6/2023 11:46:39 AM 1|Page
Exhibit "B"
Exhibit "B"
FILED
HON. CHRISTOPHER M. HONIGSBERG
JUDGE OF THE SUPERIOR COURT MAR 13 2023
Courtroom 18 SUPERIOR ‘OF CALIFORNIA,
3055 Cleveland Avenue COUNTY OF"
Santa Rosa, CA 95403 BY. DEPUTY CLERK
(707) 521-6723
SUPERIOR COURT OF CALIFORNIA, COUNTY OF SONOMA
RICHARD ABEL, Case No. SCV-263456
10 Plaintiff, RULING ISSUED ON SUBMITTED
MATTER
1 vs.
Hearing Date: March 8, 2023
12 B. EDWARD MCCUTCHAN, JR., et al.,
13 Defendants.
14
15 This matter came on for hearing on three discovery motions filed by Plaintiff,
16 Richard Abel and one discovery motion filed by Jim Nord, on March 8, 2023 before the
17 Hon. Christopher M. Honigsberg, Judge Presiding. Plaintiff Richard Abel appeared as
18 a self-represented litigant. Counsel B. Edward McCutchan and Alexander Promm
19 appeared via Zoom on behalf of Defendants.
20 The court took the matter under submission and now rules as follows.
21 Plaintiff, Richard Abel ("Plaintiff") alleges that he hired Edward McCutchan
22 (“McCutchan”) with his firm Sunderland/McCutchan LLP (“SMP”), to represent him in
23 SCV-245738, Liebling, et al. v. Goodrich, et al. (“the Prior Action’). Plaintiff has added
24 several additional defendants through Doe Amendments, including but not limited to
25 Dale Davis (“Davis”), Jim Nord (“Nord”), and Sunderland McCutchan, Inc. (“SMI”) (all
26 defendants together referred to as “Defendants”). The Prior Action involved 97
27 plaintiffs and 28 defendants. Plaintiff alleges that Defendants negligently mishandled
28 the litigation which resulted in Plaintiffs award being diminished, allowed defendant
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Zuckerman to obtain bankruptcy protection shielding him from the judgment,
miscalculated how much of the award Plaintiff was entitled to, failed to allocate any of
the award for fees and costs to Plaintiff, and has refused to pay back to Plaintiff a
credit which he owes Plaintiff.
Plaintiff alleges that 20 of the plaintiffs assigned their claims to Plaintiff and that
Plaintiff received no award for any of these assignments. Plaintiff alleges that the
assignments made were converted by defendants, including the Doe Defendants Jim
Nord and Dale Davis. Plaintiff alleges that Jim Nord and Dale Davis, as clients of
Edward McCutchan were part of McCutchan’s alleged conspiracy to convert the
10 awards for claims that Plaintiff had received through assignment. Jim Nord and Dale
11 Davis have alleged the exact same 24 affirmative defenses to Plaintiff's First Amended
12 Complaint.
13 This matter is on calendar for the three discovery motions filed by Plaintiff and
14 one discovery motion filed by Jim Nord.
15 |. Preliminary Matters
16 Any objections which are not mentioned particularly are OVERRULED. All
17 requests for judicial notice are GRANTED.
18 Including these motions presently before the Court, the Court has heard approximately
19 18 motions to compel in this matter since 2019. This does not include motions
20 regarding sanctions, motions for protective orders, or motions to quash, which brings
21 the number of discovery motions to approximately 24. The parties in this matter
22 continuously abuse the discovery process by refusing to cooperate in good faith and
23 refusing to comply with the Court’s orders, (The Court uses the term ‘the parties” to
24 encompass the parties who continuously fail to act in good faith regarding discovery
25 and their counsel.) The parties’ discovery practices throughout the pendency of this
26 action have been an affront to the judicial process and to the authority of this Court.
27 The Court has made many attempts to compel compliance with the law,
28 including issuing monetary sanctions, to no avail. The Court has also attempted to
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appoint a Discovery Referee in this matter; however, such attempt was unsuccessful
because Plaintiff established his lack of financial means to pay for his share of the
costs. The Court has also referred this matter to a Discovery Facilitator on multiple
motions, including those presently before the Court. However, the Court finds that
future referrals to the Discover Facilitator Program is unfair to the facilitators who
volunteer their time to assist the Court in obtaining resolution outside of Court in order
to lessen the strain on the Court's resources. The parties in this matter have
demonstrated their clear lack of interest in resolving any matter amongst themselves
outside of Court.
10 There is also a long history of the parties failing to pay the sanctions ordered
11 against them in a timely manner, or at all. Plaintiff has not paid sanctions ordered
12 against him yet continues to request sanctions against opposing parties. The Court
13 finds that it would be unjust to order any monetary sanctions to be payable to Plaintiff
14 when Plaintiff refuses to pay his own sanctions. Therefore, all requests for sanctions in
15 the discovery motions filed by Plaintiff that are presently before the Court are DENIED.
16 The purpose of ordering sanctions for abuses of the discovery process is to deter such
17 conduct in the future. Clearly, monetary sanctions have not been sufficient to deter
18 these parties from abusing the discovery process. All of the parties are hereby
19 admonished that further abuses of the discovery process, as have been consistently
20 demonstrated throughout the approximate four and a half years of this case, may
21 result in evidentiary, issue or terminating sanctions. The Court notes that there
22 are discovery related motions set in April, May, and June, The Court strongly
23 encourages the parties to informally resolve their upcoming discovery disputes.
24 Furthermore, all parties in this matter are prohibited from filing any new
25 motions in this matter without obtaining the approval of the Court prior to filing. The
26 parties have already filed more motions in this matter than the Court is able to count.
27 The Court cannot utilize the Discovery Facilitator program because of the parties’
28 crimonious conduct and cannot utilize a Discovery Referee because of Plaintiff's
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limited financial means. This has left the Court with no more options. The burden this
matter places on the Court’s resources is entirely due to the parties’ acrimony and
refusal to act in good faith. Therefore, prior to filing any future motions, the parties
will be required to make a good cause showing why the motion is necessary.
In light of the Court’s above order affecting all parties in this action, the
Clerk of Court is ordered to serve a copy of this order to all parties in this action.
Finally, Jim Nord and Dale Davis have opposed Plaintiff's current motions to
compel on the argument that further responses should not be compelled because
Plaintiff has unclean hands due to his refusal to pay the sanctions ordered against
10 him. None of the parties in this matter are coming before the Court with clean
1 hands during this discovery process. This argument is entirely unavailing.
12 Furthermore, as the Court has already stated in a previous order, unclean hands is not
13 a bar to the right to discovery. Further assertion of this argument by any party will not
14 be taken well by the Court.
15 il. Governing Law
16 Regarding Form Interrogatories and Special Interrogatories, a party responding
17 to an interrogatory must provide a response that is “as complete and straightforward
18 as the information reasonably available to the responding party permits” and ‘“[i]f an
19 interrogatory cannot be answered completely, it shall be answered to the extent
20 possible.” ccP §2030.220(a)-(b). “If the responding party does not have personal
21 knowledge sufficient to respond fully to an interrogatory, that party shall so state, but
22 shall make a reasonable and good faith effort to obtain the information by inquiry to
23 other natural persons or organizations, except where the information is equally
24 available to the propounding party.” CCP §2030.220(c).
25 Upon receipt of a response, the propounding party may move to compel further
26 response if it deems that an answer to a particular interrogatory is evasive or
27 incomplete, an exercise of the option to produce documents under Section 2030.230 is
28 unwarranted or the required specification of those documents is inadequate, or an
4.
objection to an interrogatory is without merit or too general. CCP §2030.300(a). When
such a motion is filed, the Court must determine whether responses are sufficient
under the Code and the burden is on the responding party to justify any objections
made and/or its failure to fully answer the interrogatories. Coy v. Sup. Ct. (1962) 58
Cal.2d 210, 220-21; Fairmont ins. Co. v. Sup. Ct. (2000) 22 Cal.4th 245, 255.
Regarding Requests for Production of Documents, a demand for production
may request access to “documents, tangible things, land or other property, and
electronically stored information in the possession, custody, or control” of another
party. A party to whom a document demand is directed must respond to each item in
10 the demand with an agreement to comply, a representation of inability to comply, or an
11 objection. CCP § 2031.210¢a). If only part of an item or category demanded is
12 objectionable, the response must contain an agreement to comply with the remainder,
13 or a representation of the inability to comply. CCP § 2031.240(c){1). If a responding
14 party is not able to comply with a particular request, that party “shall affirm that a
15 diligent search and a reasonable inquiry has been made in an effort to comply with
16 that demand.” CCP § 2031.230. “This statement shall also specify whether the inability
17 to comply is because the particular item or category has never existed, has been
18 destroyed, has been lost, misplaced, or stolen, or has never been, or is no longer, in
19 the possession, custody, or contro! of the responding party” and “[t]he statement shall
20 set forth the name and address of any natural person or organization known or
21 believed by that party to have possession, custody, or control of that item or category
22 of itern.” /d.
23 Upon receipt of a response to a request for production, the propounding party
24 may move for an order compelling further response if the propounding party deems
25 that a statement of compliance with the demand is incomplete; a representation of
26 inability to comply is inadequate, incomplete, or evasive; or an objection in the
27 response is without merit or too general. CCP § 2031.310(a). A motion to compel
28 further responses to a request for production of documents must “set forth specific
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facts showing ‘good cause’ justifying the discovery sought by the demand.” CCP
§2031.310(b)(1). Absent a claim of privilege or attorney work product, the party who
seeks to compel production has met his burden of showing ‘good cause’ simply by
showing that the requested documents are relevant to the case, i.e., that it is itself
admissible in evidence or appears reasonably calculated to lead to the discovery of
admissible evidence under CCP § 2017.010. See also Kirkland v. Sup. Ct. (2002) 95
Cal.App.4th 92, 98. Once good cause is shown, the burden shifts to the responding
party to justify its objections. See Coy, 58 Cal.2d at 220-221. It is insufficient to claim
that a requested document is within the possession of another person if the party has
10 control over that document. Clark v. Superior Court of State In and For San Mateo
11 County (1960) 177 Cal.App.2d 577, 579.
12 Regarding Requests for Admission, CCP § 2033.010 pravides that “[a]ny party
13 may obtain discovery ... by a written request that any other party to the action admit ...
14 the truth of specified matters of fact, opinion relating to fact, or application of law to
15 fact” relating to any “matter that is in controversy between the parties.” It is well-
16 established that requests for admissions may go to the “ultimate issues” of a case. St.
17 Mary v. Sup. Ct. (2014) 223 Cal.App.4th 762, 774; see also Stull v. Sparrow (2001) 92
18 Cal.App.4th 860, 864. Each response to a request for admission “shall be as complete
19 and straightforward as the information reasonably available to the responding party
20 permits” and must either object or answer, in writing and under oath, with an
21 admission of so much of the matter as is true; a denial of so much of the matter as is
22 untrue; or a specification of so much of the matter as the responding party is unable to
23 admit or deny based on insufficient knowledge or information. CCP §§2033.210(a)-
24 (b), 2033.220. “If a responding party gives lack of information or knowledge as a
25 reason for a failure to admit all or part of a request for admission, that party shall state
26 in the answer that a reasonable inquiry concerning the matter in the particular request
27 has been made, and that the information known or readily obtainable is insufficient to
28 enable that party to admit the matter.” CCP § 2033.220(c). “If only a part of a request
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for admission is objectionable, the remainder of the request shall be answered” and if
an objection is made to a request or part thereof, “the specific ground for the objection
shall be set forth clearly in the response.” CCP §2033.230.
Upon receipt of a response, a requesting party may move for a further response
if it determines that an answer to a particular request “is evasive or incomplete” or if an
objection to a particular request “is without merit or too general.” CCP § 2033.290(a).
“California law provides parties with expansive discovery rights.” Lopez v.
Watchtower Bible & Tract Society of N.Y., Inc. (2016) 246 Cal.App.4th 566, 590-591.
Specifically, the Code provides that “any party may obtain discovery regarding any
10 matter, not privileged, that is relevant to the subject matter involved in the pending
11 action or to the determination of any motion made in that action, if the matter either is
12 itself admissible in evidence or appears reasonably calculated to lead to the discovery
13 of admissible evidence.” CCP § 2017.010; see also, Garamendi v. Golden Eagle Ins.
14 Co. (2004) 116 Cal.App.4th 694, 712, fn. 8. “For discovery purposes, information is
15 relevant if it ‘might reasonably assist a party in evaluating the case, preparing for trial,
16 or facilitating settlement...” See Lopez, supra, 246 Cal.App.4th at 590-591, citing
17 Garamendi, supra, 116 Cal.App.4th at 712, fn. 8. “Admissibility is not the test and
18 information[,] unless privileged, is discoverable if it might reasonably lead to
19 admissible evidence.” /d. “These rules are applied liberally in favor of discovery, and
20 (contrary to popular belief), fishing expeditions are permissible in some cases.” /d.
21 The scope of discovery is one of reason, logic and common sense. Lipfon v. Superior
22 Court (1996) 48 Cal.App.4th 1599, 1612. The right to discovery is generally liberally
23 construed. Williams v. Superior Court (2017) 3 Cal.5th 531, 540.
24 lll. Plaintiff's Motion to Compel Further Responses from Dale Davis
25 Plaintiff previously filed two discovery motions to compel responses from Dale
26 Davis. The first motion, filed November 15, 2021, sought to compel responses to
27 Plaintiff's form interrogatories (“Fls”) set one, request for production of documents
28 ("RPODs’) set one, and requests for admission (“RFAs”) set one. The second motion
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was filed February 24, 2022, and sought to compel responses to Plaintiff's Fis set two,
and special interrogatories (“Sls”) set one. On May 25, 2022, the Court granted the
motion to compel further responses to RPODs, Fl’s and RFAs because Dale Davis
made no effort to respond, but rather copy and pasted the same boilerplate objection
to each individual discovery item. The Court denied the request to deem the RFAs
admitted. Dale Davis subsequently served supplemental responses and Plaintiff now
seeks to compel further responses to all of the discovery propounded, RPODs, Fis,
Sls and RFAs.
Davis filed opposing papers and then subsequently filed supplemental opposing
10 papers without seeking leave of the Court to do so. There is no legal basis for filing a
11 supplemental opposition. Therefore, it will be disregarded.
12 A. RPODs
13 Regarding Davis's responses to the RPODs, Davis copy and pasted the same
14 exact paragraph as his response to each request. The copy and pasted response is an
15 insult to the Court’s previous order. The same counsel who is representing him in this
16 action represented him in the Liebling matter. Davis has claimed that hig computer has
17 been purged so he has no documenis to produce. This does not alleviate Davis from
18 his obligation to make a good faith effort to obtain the requested documents.
419 Furthermore, claiming that such documents are already in Plaintiffs possession, as
20 this copy and pasted response seems to claim, does not alleviate Davis from
21 producing. The motion to compel further responses to the RPODs is GRANTED.
22 B. RFAs
23 Davis’s responses to Plaintiff's RFAs are sufficient. The motion to compel
24 further responses to the RFAs is DENIED.
25 C. Fis
26 Davis's responses to Plaintiffs Fls are sufficient. The motion to compel further
27 responses to the Fils is DENIED.
28 D, SIs
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The Court's May 25, 2022 order explicitly stated as to Davis's responses to
Plaintiffs Sls,
Davis objects that the use of the term defendants in the interrogatory is vague.
This strains credulity, as Plaintiff is asking questions as to the statements within
Davis's answer. See Davis's Answer filed 12/23/2021, pg. 3226-424. If the
term defendants is ambiguous here, it is Davis who is vague. This objection is
representative of the assertions by Defendants to all the special interrogatories.
Additionally, Defendant's assertion that he does not remember is an incomplete
answer as Davis has an obligation to “undertake a reasonable and good faith
10 effort to obtain the information by inquiry” CCP § 2030.220(c).
11 Yet, Davis continues to object to the use of “defendant” as being vague in his
12 supplemental responses to Sls 3, 4, and 5. Furthermore, Davis continues to assert “|
13 do not remember’ in his supplemental answers to Sls 1, 2, 3, 4, and 5. Such answers
14 completely ignore the Court's previous order. The motion to compel further responses
15 to Sls 1-5 is GRANTED.
16 IV. Plaintiff's Two Motions to Compel Further Responses from Jim Nord
17 A. RFAs
18 Nord’s responses to Plaintiff's RFAs are sufficient. The motion to compe! further
19 responses to the RFAs is DENIED.
20 B. Fis
21 Nord's responses to Plaintiff's Fls are sufficient. The motion to compel further
22 responses to the Fls is DENIED.
23 Cc. Sis
24 Nord has objected to Sls 2, 4, 5, 7, 28, and 34 on the basis of his constitutional
25 right to privacy and attorney client privilege. Plaintiff asserts that Nord cannot make
26 such an objection because the attorney client privilege does not apply when two or
27 more clients are jointly represented by the same lawyer. This is an overgeneralization
28 of the rule. Rather, the rule states, “communications made by parties united in a
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common interest to their joint or common counsel, while privileged against strangers,
are not privileged as between such parties nor as between their counsel and any of
them, when later they assume adverse positions.” Anten v. Superior Ct, (2015) 233
Cal.App.4th 1254, 1259.
So, while Nord cannot assert the attorney client privilege as to communications
made to McCutchan during the time of the joint representation with Plaintiff, Nord can
make such an objection to communications occurring outside of the joint
representation, The Sls objected to by Nord do not simply seek communications to
and from McCutchan during the joint representation. For SI 2, the language is so
10 broad that it could encompass privileged communications occurring outside the joint
11 representation. SI 5 requests Nord to provide the reasons he is paying McCutchan to
12 write an appeal brief for Robert Zuckerman’s appeal. This is clearly touching on
13 communications outside of the joint representation. This is the same with SI 7 and SI
14 28 which ask for Nord’s reasoning for still pursuing Robert Zuckerman. SI 34 directly
15 asks for Nord’s attorney’s communications to Nord regarding his reasoning for
16 rejecting Plaintiffs Second Amended Judgment. For this reason, the motion to compel
7 further responses to Sls 2, 4, 5, 7, 28, and 34 is denied.
18 The motion is aiso denied as to Sls 1, 6, 10, and 16. Nord’s answers to these
19 Sls are sufficient.
20 Nord claims “I do not remember’ in his answers to Sls 9, 31, 32, and 33. The
21 Court will not continue to repeat itself that “I do not remember” is not a code compliant
22 response to discovery. At this point, the Doe Defendant's counsel, Mr. McCutchan, is
23 well aware of the Courts position on this type of answer and the duty a party has to
24 make a good faith and diligent effort to respond. Nord also objects to S!s 31, 32, and
25 33 as being “overly burdensome.” They are not. The objections to these Sls are
26 overruled. Nord is ordered to provide supplemental responses io Sls 9, 31, 32, and 33.
27 Regarding S] 35, Nord objects on the basis that it calls for legal conclusion and
28
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is speculative. Nord has not supported this objection. It is overruled and Nord is
ordered to supplement his response to SI 35.
V. Jim Nord’s Motion to Compel Further Responses from Plaintiff
Jim Nord has filed a motion to compel further responses from Plaintiff to Nord’s
first set of Fis, Sls, RFAs, and RPODs. The day before Nord filed this motion, Plaintiff
served amended responses to the RFAs, the RPODs, the Fls, but not the Sls. Plaintiff
opposes the motion on the basis that the amended responses moot the motion as to
the discovery for which he provided amended answers and on the basis that his
responses to the Sls were sufficient. Nord has not filed a reply brief. Nord has also not
10 filed a motion to compel further responses to the RFAs, RPODs and FIs after receiving
11 the amended responses. The Court will not inquire into the sufficiency of these
12 amended responses because Nord has not challenged their sufficiency. Doing so
13 would require a renewed motion.
14 It is true that the amended responses to the RFAs, RPODs, and Fils moot the
15 instant motion as to them. However, when a party serves response after a motion to
16 compel is filed, the court maintains jurisdiction within its discretion to determine
17 whether the requested sanctions are appropriate. Sinaiko Healthcare Consulting, Inc.
18 v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 410-411. Plaintiff
19 served his amended responses by mail on September 18, 2022 and Jim Nord filed the
20 instant motion on September 19, 2022. Plaintiff has provided evidence of an email
21 from counsel Mr. McCutchan which extended the deadline for Plaintiff to provide
22 amended responses to September 20, 2022. Therefore, it is not apparent that the
23 motion as to the original responses to the RFAs, RPODs, and Fls (which is what is
24 procedurally before this court) was necessary. Accordingly, the Court does not find
25 sanctions to be warranted.
26 Regarding the Sls, Plaintiff has responded to each one with the same
27 boilerplate objection and has not made any effort to participate substantively. The
28 repeated objection states,
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Objection. This interrogatory is improper because it violates CCP section
2030.060. Objection. Propounding party’s definition of “you” is impermissibly
overbroad and violates CCP section 2010.010 and section 2030.010.
These objections are overruled. The motion is GRANTED as to the Sls. Plaintiff is
ordered to provide supplemental responses to all of Nord’s Sls within 30 days of notice
of an order on this motion. Plaintiff's responses demonstrate an abuse of the discovery
process; thus sanctions are warranted.
Sanctions are GRANTED in the amount of $500 to be paid within 30 days of
notice of an order on this motion. This sanctions amount has been calculated as
10 follows: Counsel McCutchan has estimated a total amount of 3.1 hours incurred on
1 drafting the motion, 1.8 hours on “responding to the opposition,” 1.9 hours on drafting
12 Jim Nord’s reply, and 0.8 hours in reviewing the tentative ruling. However, no reply to
13 the opposition was filed. Therefore the total amount of hours represented as spent on
14 this motion is 3.9. The Court estimates an additional 1.1 hours was expended for
15 prepping for and appearing at the hearing. The hourly rate is calculated as $400.
16 Therefore, the total fees incurred is $2,000. Defendant Nord has prevailed on only one
17 fourth of the motion, therefore sanctions shall be imposed in the amount of $500.
18 The Court is aware of Plaintiff's history of not paying the sanctions ordered
19 against him. The Court believes that any further imposition of monetary sanctions
20 against Plaintiff would be futile to deter future abuses of the discovery process. Plaintiff
21 cannot continue to refuse to provide substantive discovery while demanding it from his
22 opponents. Plaintiff is reminded that the Court will consider evidentiary, issue or even
23 terminating sanctions for any further abuses of the discovery process by him.
“
24
25 DATED: March | > , 2023
26
27
CH
get the Superior
M. HONIGSBER
Court
28
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SCV-263456
PROOF OF SERVICE BY MAIL
I certify that I am an employee of the Superior Court of California, County of Sonoma,
and that my business address is 600 Administration Dr., Room 107-J, Santa Rosa, California,
95403; that I am not a party to this case; that I am over the age of 18; that I am readily familiar
with this office's practice for collection and processing of correspondence for mailing with the
United States Postal Service; and that on the date shown below I placed a true copy of RULING
ON SUBMITTED MATTER in an envelope, sealed and addressed as shown below, for collection
and mailing at Santa Rosa, California, first class, postage fully prepaid, following ordinary
business practices.
Date: March 13, 2023 Robert Oliver
Clerk of the Court
By: Melissa JM Watery
Melissa JM Waters, Deputy Clerk
-ADDRESSEES-
RICHARD ABEL
2222 CLEVELAND AVENUE APT 1002
SANTA ROSA CA 95403
B EDWARD MCCUTCHAN JR
SUNDERLAND MCCUTCHAN LLP
1083 VINE STREET SUITE 907
HEALDSBURG CA 95448
JOSEPH § PICCHI
GALLOWAY LUCCHESE EVERSON & PICCHI
2300 CONTRA COSTA BLVD STE 350
PLEASANT HILL CA 94523-2398
NANSI IDA WEIL
15898 WRIGHT LN
GUERNEVILLE CA 95446
POS-030
ATTORNEY OR PARTY WITHOUT ATTORNEY (Name, State Bar number, and address): FOR COURT USE ONLY
Richard Abel
2222 Cleveland Avenue, Apt. 1002
Santa Rosa, CA 95403
TELEPHONE NO.:(707) 340-3894 FAX NO. (Optional)
E-MAIL ADDRESS (Optional):
ATTORNEY FOR (Nano): Plaintiff pro per
‘SUPERIOR COURT OF CALIFORNIA, COUNTY OF SONOMA
street anpress:600 Administration Drive, Room 107-J
maine aopress:600 Administration Drive, Room 107-J
city aNDzP cove: Santa Rosa, CA 95403
srancu nawe:Civil Division - Dept. 18
PETITIONERIPLAINTIFF:
Abel
RESPONDENT/DEFENDANT:McCutchan, Jr. et.al.
CASE NUMBER:
PROOF OF SERVICE BY FIRST-CLASS MAIL—CIVIL SCV-263456
(Do not use this Proof of Service fo show service of a Summons and Complaint)
| am over 18 years of age and not a party to this action. | am a resident of or employed in the county where the mailing
took place.
My residence or business address is:
5805 Cuneo Court, Santa Rosa, CA 95401
On (date):November 7, 2023 | mailed from (city and state): Santa Rosa, California
the following documents (specify):
PLAINTIFF'S REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF PLAINTIFF'S OPPOSITION TO
MOTION TO ENFORCE SETTLEMENT AGREEMENT
[1] The documents are listed in the Attachment to Proof of Service by First-Class Mail—Civil (Documents Served)
(form POS-030(D)).
I served the documents by enclosing them in an envelope and (check one):
a. [52] depositing the sealed envelope with the United States Postal Service with the postage fully prepaid.
b. [_] placing the envelope for collection and mailing following our ordinary business practices. | am readily familiar with this
business's practice for collecting and processing correspondence for mailing. On the same day that correspondence is
placed for collection and mailing, it is deposited in the ordinary course of business with the United States Postal Service in
a sealed envelope with postage fully prepaid.
The envelope was addressed and mailed as follows:
a. Name of person served: SEE BELOW
b, Address of person served:
Joseph Picchi B. Edward McCutchan, Jr
Galloway, Lucchese and Picchi Sunderland-McCutchan, LLP
2300 Contra Costa Blvd. Suite 350 1803 Vine Street PMB 907, The UPS Store
Pleasant Hill, CA 94523 Healdsby , CA 95448
The name and address of each person to whom | mailed the documents is listed in the Attachment to Proof of Service
by First-Class Mail—Civil (Persons Served) (POS-030(P)).
| declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct.
Date: November 7, 2023
Henry Crigler
(TYPE OR PRINT NAME OF PERSON COMPLETING THIS FORM)
» PhunCh
SIGNATURE FF renal ‘COMPLETING THIS FORM)
Form Approved for Optional Use PROOF OF SERVICE BY FIRST-CLASS MAIL—@IWIL Code af Civil Procedure, §§ 1013, 1013
Judicial Council of California ‘wnvw.courtinfa.ca.gov
POS-030 [New January 1, 2005] Proof of Service)
Preview
Richard Abel 2222 Cleveland Avenue, Apt. 1002 Santa Rosa, CA 95403 Telephone: (707) 340-3894 Plaintiff, in pro per SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SONOMA 10 li RICHARD ABEL, an individual; Case Number: SCV-263456 12 Plaintiff; PLAINTIFF'S REQUEST FOR JUDICIAL 13 Vv. NOTICE IN SUPPORT OF PLAINTIFF'S OPPOSITION TO MOTION TO ENFORCE 14 SETTLEMENT AGREEMENT B. EDWARD McCUTCHAN JR. an 15 individual; SUNDERLAND/McCUTCHAN, LLP, a general partnership; and DOES 1 Date: November 22, 2023 16 through 100, inclusive; Time: 3:00 p.m. 17 Dept: 18 - Hon. Christopher Honigsberg| Defendants. 18 19 TO THE COURT, AND ALL PARTIES AND THEIR ATTORNEYS OF RECORD: 20 Plaintiff Richard Abel (Plaintiff) hereby respectfully requests that the Court take 21 Judicial Notice pursuant to California Evidence Code sections 452 and 453 of the following 22 court records in support of Plaintiff's opposition to Motion to Enforce Settlement Agreement: 23 Exhibit A Minute Order by the Court entered on June 6, 2023 for the Judicial Settlement 24 Conference in Sonoma County Superior Court Case no. SCV-263456. 25 ExhibitB Ruling Issued on Submitted Matter, entered on March 13, 2023 in Sonoma 26 County Superior Court Case no. SCV-263456. 27 28 November 5, 2023 (thal! he? Richard Abel, Plaintiff, in pro per PLAINTIFF'S REQUEST FOR JUDICIAL NOTICE 1 Exhibit "AY Exhibit "A" BURTS, SS Superior Court of California, County of Sonoma faeSS as oo MINUTE ORDERS Fae SCV-263456 ABEL VS MCCUTCHAN, JR Date of Hearing: June 06, 2023 Settlement Conference Time: 9:00 AM Courtroom 18 Judicial Officer: Rene A Chouteau Courtroom Clerk: Elizabeth Maldonado Pro Tem Court Reporter: Tami Carlson CSR: 125555 Parties Present: ABEL, RICHARD Plaintiff MCCUTCHAN, B. EDWARD, JR Defendant/Attorney for Defendants PICCHI, JOSEPH S Attorney for Defendant, Edward McCutchan Judicial Settlement Conference At 10:18 a.m., the matter is called. Appearances are stated. Court states the parties have reached a settlement agreement and announces the terms. Court voir dires parties regarding Settlement Agreement terms. Court FINDS the Settlement Agreement has been entered into knowingly, voluntarily and without coercion. Court ORDERS the following: All future hearings are VACATED. Sanctions against Plaintiff, Richard Abel are VACATED. Plaintiff shall file Notice of Settlement. -End of Minute Order- Next Hearing(s) - Information current as of June 06, 2023: CANCELED: June 07, 2023 3:00 PM CANCELED: August 09, 2023 3:00 PM Discovery Motion Vacate CANCELED: June 07, 2023 3:00 PM CANCELED: September 13, 2023 3:00 PM. Motion to Compel Summary Judgment CANCELED: August 09, 2023 3:00 PM CANCELED: January 05, 2024 8:30 AM Demurrer / Motion to Strike Jury Trial For more information please contact the Clerk's Office at (707) 524-6500 during official business hours. Wy SONOMA COUFTS.ceL, ZOU Generated: 6/6/2023 11:46:39 AM 1|Page Exhibit "B" Exhibit "B" FILED HON. CHRISTOPHER M. HONIGSBERG JUDGE OF THE SUPERIOR COURT MAR 13 2023 Courtroom 18 SUPERIOR ‘OF CALIFORNIA, 3055 Cleveland Avenue COUNTY OF" Santa Rosa, CA 95403 BY. DEPUTY CLERK (707) 521-6723 SUPERIOR COURT OF CALIFORNIA, COUNTY OF SONOMA RICHARD ABEL, Case No. SCV-263456 10 Plaintiff, RULING ISSUED ON SUBMITTED MATTER 1 vs. Hearing Date: March 8, 2023 12 B. EDWARD MCCUTCHAN, JR., et al., 13 Defendants. 14 15 This matter came on for hearing on three discovery motions filed by Plaintiff, 16 Richard Abel and one discovery motion filed by Jim Nord, on March 8, 2023 before the 17 Hon. Christopher M. Honigsberg, Judge Presiding. Plaintiff Richard Abel appeared as 18 a self-represented litigant. Counsel B. Edward McCutchan and Alexander Promm 19 appeared via Zoom on behalf of Defendants. 20 The court took the matter under submission and now rules as follows. 21 Plaintiff, Richard Abel ("Plaintiff") alleges that he hired Edward McCutchan 22 (“McCutchan”) with his firm Sunderland/McCutchan LLP (“SMP”), to represent him in 23 SCV-245738, Liebling, et al. v. Goodrich, et al. (“the Prior Action’). Plaintiff has added 24 several additional defendants through Doe Amendments, including but not limited to 25 Dale Davis (“Davis”), Jim Nord (“Nord”), and Sunderland McCutchan, Inc. (“SMI”) (all 26 defendants together referred to as “Defendants”). The Prior Action involved 97 27 plaintiffs and 28 defendants. Plaintiff alleges that Defendants negligently mishandled 28 the litigation which resulted in Plaintiffs award being diminished, allowed defendant -1- Zuckerman to obtain bankruptcy protection shielding him from the judgment, miscalculated how much of the award Plaintiff was entitled to, failed to allocate any of the award for fees and costs to Plaintiff, and has refused to pay back to Plaintiff a credit which he owes Plaintiff. Plaintiff alleges that 20 of the plaintiffs assigned their claims to Plaintiff and that Plaintiff received no award for any of these assignments. Plaintiff alleges that the assignments made were converted by defendants, including the Doe Defendants Jim Nord and Dale Davis. Plaintiff alleges that Jim Nord and Dale Davis, as clients of Edward McCutchan were part of McCutchan’s alleged conspiracy to convert the 10 awards for claims that Plaintiff had received through assignment. Jim Nord and Dale 11 Davis have alleged the exact same 24 affirmative defenses to Plaintiff's First Amended 12 Complaint. 13 This matter is on calendar for the three discovery motions filed by Plaintiff and 14 one discovery motion filed by Jim Nord. 15 |. Preliminary Matters 16 Any objections which are not mentioned particularly are OVERRULED. All 17 requests for judicial notice are GRANTED. 18 Including these motions presently before the Court, the Court has heard approximately 19 18 motions to compel in this matter since 2019. This does not include motions 20 regarding sanctions, motions for protective orders, or motions to quash, which brings 21 the number of discovery motions to approximately 24. The parties in this matter 22 continuously abuse the discovery process by refusing to cooperate in good faith and 23 refusing to comply with the Court’s orders, (The Court uses the term ‘the parties” to 24 encompass the parties who continuously fail to act in good faith regarding discovery 25 and their counsel.) The parties’ discovery practices throughout the pendency of this 26 action have been an affront to the judicial process and to the authority of this Court. 27 The Court has made many attempts to compel compliance with the law, 28 including issuing monetary sanctions, to no avail. The Court has also attempted to -2- appoint a Discovery Referee in this matter; however, such attempt was unsuccessful because Plaintiff established his lack of financial means to pay for his share of the costs. The Court has also referred this matter to a Discovery Facilitator on multiple motions, including those presently before the Court. However, the Court finds that future referrals to the Discover Facilitator Program is unfair to the facilitators who volunteer their time to assist the Court in obtaining resolution outside of Court in order to lessen the strain on the Court's resources. The parties in this matter have demonstrated their clear lack of interest in resolving any matter amongst themselves outside of Court. 10 There is also a long history of the parties failing to pay the sanctions ordered 11 against them in a timely manner, or at all. Plaintiff has not paid sanctions ordered 12 against him yet continues to request sanctions against opposing parties. The Court 13 finds that it would be unjust to order any monetary sanctions to be payable to Plaintiff 14 when Plaintiff refuses to pay his own sanctions. Therefore, all requests for sanctions in 15 the discovery motions filed by Plaintiff that are presently before the Court are DENIED. 16 The purpose of ordering sanctions for abuses of the discovery process is to deter such 17 conduct in the future. Clearly, monetary sanctions have not been sufficient to deter 18 these parties from abusing the discovery process. All of the parties are hereby 19 admonished that further abuses of the discovery process, as have been consistently 20 demonstrated throughout the approximate four and a half years of this case, may 21 result in evidentiary, issue or terminating sanctions. The Court notes that there 22 are discovery related motions set in April, May, and June, The Court strongly 23 encourages the parties to informally resolve their upcoming discovery disputes. 24 Furthermore, all parties in this matter are prohibited from filing any new 25 motions in this matter without obtaining the approval of the Court prior to filing. The 26 parties have already filed more motions in this matter than the Court is able to count. 27 The Court cannot utilize the Discovery Facilitator program because of the parties’ 28 crimonious conduct and cannot utilize a Discovery Referee because of Plaintiff's -3- limited financial means. This has left the Court with no more options. The burden this matter places on the Court’s resources is entirely due to the parties’ acrimony and refusal to act in good faith. Therefore, prior to filing any future motions, the parties will be required to make a good cause showing why the motion is necessary. In light of the Court’s above order affecting all parties in this action, the Clerk of Court is ordered to serve a copy of this order to all parties in this action. Finally, Jim Nord and Dale Davis have opposed Plaintiff's current motions to compel on the argument that further responses should not be compelled because Plaintiff has unclean hands due to his refusal to pay the sanctions ordered against 10 him. None of the parties in this matter are coming before the Court with clean 1 hands during this discovery process. This argument is entirely unavailing. 12 Furthermore, as the Court has already stated in a previous order, unclean hands is not 13 a bar to the right to discovery. Further assertion of this argument by any party will not 14 be taken well by the Court. 15 il. Governing Law 16 Regarding Form Interrogatories and Special Interrogatories, a party responding 17 to an interrogatory must provide a response that is “as complete and straightforward 18 as the information reasonably available to the responding party permits” and ‘“[i]f an 19 interrogatory cannot be answered completely, it shall be answered to the extent 20 possible.” ccP §2030.220(a)-(b). “If the responding party does not have personal 21 knowledge sufficient to respond fully to an interrogatory, that party shall so state, but 22 shall make a reasonable and good faith effort to obtain the information by inquiry to 23 other natural persons or organizations, except where the information is equally 24 available to the propounding party.” CCP §2030.220(c). 25 Upon receipt of a response, the propounding party may move to compel further 26 response if it deems that an answer to a particular interrogatory is evasive or 27 incomplete, an exercise of the option to produce documents under Section 2030.230 is 28 unwarranted or the required specification of those documents is inadequate, or an 4. objection to an interrogatory is without merit or too general. CCP §2030.300(a). When such a motion is filed, the Court must determine whether responses are sufficient under the Code and the burden is on the responding party to justify any objections made and/or its failure to fully answer the interrogatories. Coy v. Sup. Ct. (1962) 58 Cal.2d 210, 220-21; Fairmont ins. Co. v. Sup. Ct. (2000) 22 Cal.4th 245, 255. Regarding Requests for Production of Documents, a demand for production may request access to “documents, tangible things, land or other property, and electronically stored information in the possession, custody, or control” of another party. A party to whom a document demand is directed must respond to each item in 10 the demand with an agreement to comply, a representation of inability to comply, or an 11 objection. CCP § 2031.210¢a). If only part of an item or category demanded is 12 objectionable, the response must contain an agreement to comply with the remainder, 13 or a representation of the inability to comply. CCP § 2031.240(c){1). If a responding 14 party is not able to comply with a particular request, that party “shall affirm that a 15 diligent search and a reasonable inquiry has been made in an effort to comply with 16 that demand.” CCP § 2031.230. “This statement shall also specify whether the inability 17 to comply is because the particular item or category has never existed, has been 18 destroyed, has been lost, misplaced, or stolen, or has never been, or is no longer, in 19 the possession, custody, or contro! of the responding party” and “[t]he statement shall 20 set forth the name and address of any natural person or organization known or 21 believed by that party to have possession, custody, or control of that item or category 22 of itern.” /d. 23 Upon receipt of a response to a request for production, the propounding party 24 may move for an order compelling further response if the propounding party deems 25 that a statement of compliance with the demand is incomplete; a representation of 26 inability to comply is inadequate, incomplete, or evasive; or an objection in the 27 response is without merit or too general. CCP § 2031.310(a). A motion to compel 28 further responses to a request for production of documents must “set forth specific -5- facts showing ‘good cause’ justifying the discovery sought by the demand.” CCP §2031.310(b)(1). Absent a claim of privilege or attorney work product, the party who seeks to compel production has met his burden of showing ‘good cause’ simply by showing that the requested documents are relevant to the case, i.e., that it is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence under CCP § 2017.010. See also Kirkland v. Sup. Ct. (2002) 95 Cal.App.4th 92, 98. Once good cause is shown, the burden shifts to the responding party to justify its objections. See Coy, 58 Cal.2d at 220-221. It is insufficient to claim that a requested document is within the possession of another person if the party has 10 control over that document. Clark v. Superior Court of State In and For San Mateo 11 County (1960) 177 Cal.App.2d 577, 579. 12 Regarding Requests for Admission, CCP § 2033.010 pravides that “[a]ny party 13 may obtain discovery ... by a written request that any other party to the action admit ... 14 the truth of specified matters of fact, opinion relating to fact, or application of law to 15 fact” relating to any “matter that is in controversy between the parties.” It is well- 16 established that requests for admissions may go to the “ultimate issues” of a case. St. 17 Mary v. Sup. Ct. (2014) 223 Cal.App.4th 762, 774; see also Stull v. Sparrow (2001) 92 18 Cal.App.4th 860, 864. Each response to a request for admission “shall be as complete 19 and straightforward as the information reasonably available to the responding party 20 permits” and must either object or answer, in writing and under oath, with an 21 admission of so much of the matter as is true; a denial of so much of the matter as is 22 untrue; or a specification of so much of the matter as the responding party is unable to 23 admit or deny based on insufficient knowledge or information. CCP §§2033.210(a)- 24 (b), 2033.220. “If a responding party gives lack of information or knowledge as a 25 reason for a failure to admit all or part of a request for admission, that party shall state 26 in the answer that a reasonable inquiry concerning the matter in the particular request 27 has been made, and that the information known or readily obtainable is insufficient to 28 enable that party to admit the matter.” CCP § 2033.220(c). “If only a part of a request -6- for admission is objectionable, the remainder of the request shall be answered” and if an objection is made to a request or part thereof, “the specific ground for the objection shall be set forth clearly in the response.” CCP §2033.230. Upon receipt of a response, a requesting party may move for a further response if it determines that an answer to a particular request “is evasive or incomplete” or if an objection to a particular request “is without merit or too general.” CCP § 2033.290(a). “California law provides parties with expansive discovery rights.” Lopez v. Watchtower Bible & Tract Society of N.Y., Inc. (2016) 246 Cal.App.4th 566, 590-591. Specifically, the Code provides that “any party may obtain discovery regarding any 10 matter, not privileged, that is relevant to the subject matter involved in the pending 11 action or to the determination of any motion made in that action, if the matter either is 12 itself admissible in evidence or appears reasonably calculated to lead to the discovery 13 of admissible evidence.” CCP § 2017.010; see also, Garamendi v. Golden Eagle Ins. 14 Co. (2004) 116 Cal.App.4th 694, 712, fn. 8. “For discovery purposes, information is 15 relevant if it ‘might reasonably assist a party in evaluating the case, preparing for trial, 16 or facilitating settlement...” See Lopez, supra, 246 Cal.App.4th at 590-591, citing 17 Garamendi, supra, 116 Cal.App.4th at 712, fn. 8. “Admissibility is not the test and 18 information[,] unless privileged, is discoverable if it might reasonably lead to 19 admissible evidence.” /d. “These rules are applied liberally in favor of discovery, and 20 (contrary to popular belief), fishing expeditions are permissible in some cases.” /d. 21 The scope of discovery is one of reason, logic and common sense. Lipfon v. Superior 22 Court (1996) 48 Cal.App.4th 1599, 1612. The right to discovery is generally liberally 23 construed. Williams v. Superior Court (2017) 3 Cal.5th 531, 540. 24 lll. Plaintiff's Motion to Compel Further Responses from Dale Davis 25 Plaintiff previously filed two discovery motions to compel responses from Dale 26 Davis. The first motion, filed November 15, 2021, sought to compel responses to 27 Plaintiff's form interrogatories (“Fls”) set one, request for production of documents 28 ("RPODs’) set one, and requests for admission (“RFAs”) set one. The second motion -7- was filed February 24, 2022, and sought to compel responses to Plaintiff's Fis set two, and special interrogatories (“Sls”) set one. On May 25, 2022, the Court granted the motion to compel further responses to RPODs, Fl’s and RFAs because Dale Davis made no effort to respond, but rather copy and pasted the same boilerplate objection to each individual discovery item. The Court denied the request to deem the RFAs admitted. Dale Davis subsequently served supplemental responses and Plaintiff now seeks to compel further responses to all of the discovery propounded, RPODs, Fis, Sls and RFAs. Davis filed opposing papers and then subsequently filed supplemental opposing 10 papers without seeking leave of the Court to do so. There is no legal basis for filing a 11 supplemental opposition. Therefore, it will be disregarded. 12 A. RPODs 13 Regarding Davis's responses to the RPODs, Davis copy and pasted the same 14 exact paragraph as his response to each request. The copy and pasted response is an 15 insult to the Court’s previous order. The same counsel who is representing him in this 16 action represented him in the Liebling matter. Davis has claimed that hig computer has 17 been purged so he has no documenis to produce. This does not alleviate Davis from 18 his obligation to make a good faith effort to obtain the requested documents. 419 Furthermore, claiming that such documents are already in Plaintiffs possession, as 20 this copy and pasted response seems to claim, does not alleviate Davis from 21 producing. The motion to compel further responses to the RPODs is GRANTED. 22 B. RFAs 23 Davis’s responses to Plaintiff's RFAs are sufficient. The motion to compel 24 further responses to the RFAs is DENIED. 25 C. Fis 26 Davis's responses to Plaintiffs Fls are sufficient. The motion to compel further 27 responses to the Fils is DENIED. 28 D, SIs -8- The Court's May 25, 2022 order explicitly stated as to Davis's responses to Plaintiffs Sls, Davis objects that the use of the term defendants in the interrogatory is vague. This strains credulity, as Plaintiff is asking questions as to the statements within Davis's answer. See Davis's Answer filed 12/23/2021, pg. 3226-424. If the term defendants is ambiguous here, it is Davis who is vague. This objection is representative of the assertions by Defendants to all the special interrogatories. Additionally, Defendant's assertion that he does not remember is an incomplete answer as Davis has an obligation to “undertake a reasonable and good faith 10 effort to obtain the information by inquiry” CCP § 2030.220(c). 11 Yet, Davis continues to object to the use of “defendant” as being vague in his 12 supplemental responses to Sls 3, 4, and 5. Furthermore, Davis continues to assert “| 13 do not remember’ in his supplemental answers to Sls 1, 2, 3, 4, and 5. Such answers 14 completely ignore the Court's previous order. The motion to compel further responses 15 to Sls 1-5 is GRANTED. 16 IV. Plaintiff's Two Motions to Compel Further Responses from Jim Nord 17 A. RFAs 18 Nord’s responses to Plaintiff's RFAs are sufficient. The motion to compe! further 19 responses to the RFAs is DENIED. 20 B. Fis 21 Nord's responses to Plaintiff's Fls are sufficient. The motion to compel further 22 responses to the Fls is DENIED. 23 Cc. Sis 24 Nord has objected to Sls 2, 4, 5, 7, 28, and 34 on the basis of his constitutional 25 right to privacy and attorney client privilege. Plaintiff asserts that Nord cannot make 26 such an objection because the attorney client privilege does not apply when two or 27 more clients are jointly represented by the same lawyer. This is an overgeneralization 28 of the rule. Rather, the rule states, “communications made by parties united in a -9- common interest to their joint or common counsel, while privileged against strangers, are not privileged as between such parties nor as between their counsel and any of them, when later they assume adverse positions.” Anten v. Superior Ct, (2015) 233 Cal.App.4th 1254, 1259. So, while Nord cannot assert the attorney client privilege as to communications made to McCutchan during the time of the joint representation with Plaintiff, Nord can make such an objection to communications occurring outside of the joint representation, The Sls objected to by Nord do not simply seek communications to and from McCutchan during the joint representation. For SI 2, the language is so 10 broad that it could encompass privileged communications occurring outside the joint 11 representation. SI 5 requests Nord to provide the reasons he is paying McCutchan to 12 write an appeal brief for Robert Zuckerman’s appeal. This is clearly touching on 13 communications outside of the joint representation. This is the same with SI 7 and SI 14 28 which ask for Nord’s reasoning for still pursuing Robert Zuckerman. SI 34 directly 15 asks for Nord’s attorney’s communications to Nord regarding his reasoning for 16 rejecting Plaintiffs Second Amended Judgment. For this reason, the motion to compel 7 further responses to Sls 2, 4, 5, 7, 28, and 34 is denied. 18 The motion is aiso denied as to Sls 1, 6, 10, and 16. Nord’s answers to these 19 Sls are sufficient. 20 Nord claims “I do not remember’ in his answers to Sls 9, 31, 32, and 33. The 21 Court will not continue to repeat itself that “I do not remember” is not a code compliant 22 response to discovery. At this point, the Doe Defendant's counsel, Mr. McCutchan, is 23 well aware of the Courts position on this type of answer and the duty a party has to 24 make a good faith and diligent effort to respond. Nord also objects to S!s 31, 32, and 25 33 as being “overly burdensome.” They are not. The objections to these Sls are 26 overruled. Nord is ordered to provide supplemental responses io Sls 9, 31, 32, and 33. 27 Regarding S] 35, Nord objects on the basis that it calls for legal conclusion and 28 -10- is speculative. Nord has not supported this objection. It is overruled and Nord is ordered to supplement his response to SI 35. V. Jim Nord’s Motion to Compel Further Responses from Plaintiff Jim Nord has filed a motion to compel further responses from Plaintiff to Nord’s first set of Fis, Sls, RFAs, and RPODs. The day before Nord filed this motion, Plaintiff served amended responses to the RFAs, the RPODs, the Fls, but not the Sls. Plaintiff opposes the motion on the basis that the amended responses moot the motion as to the discovery for which he provided amended answers and on the basis that his responses to the Sls were sufficient. Nord has not filed a reply brief. Nord has also not 10 filed a motion to compel further responses to the RFAs, RPODs and FIs after receiving 11 the amended responses. The Court will not inquire into the sufficiency of these 12 amended responses because Nord has not challenged their sufficiency. Doing so 13 would require a renewed motion. 14 It is true that the amended responses to the RFAs, RPODs, and Fils moot the 15 instant motion as to them. However, when a party serves response after a motion to 16 compel is filed, the court maintains jurisdiction within its discretion to determine 17 whether the requested sanctions are appropriate. Sinaiko Healthcare Consulting, Inc. 18 v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 410-411. Plaintiff 19 served his amended responses by mail on September 18, 2022 and Jim Nord filed the 20 instant motion on September 19, 2022. Plaintiff has provided evidence of an email 21 from counsel Mr. McCutchan which extended the deadline for Plaintiff to provide 22 amended responses to September 20, 2022. Therefore, it is not apparent that the 23 motion as to the original responses to the RFAs, RPODs, and Fls (which is what is 24 procedurally before this court) was necessary. Accordingly, the Court does not find 25 sanctions to be warranted. 26 Regarding the Sls, Plaintiff has responded to each one with the same 27 boilerplate objection and has not made any effort to participate substantively. The 28 repeated objection states, -11- Objection. This interrogatory is improper because it violates CCP section 2030.060. Objection. Propounding party’s definition of “you” is impermissibly overbroad and violates CCP section 2010.010 and section 2030.010. These objections are overruled. The motion is GRANTED as to the Sls. Plaintiff is ordered to provide supplemental responses to all of Nord’s Sls within 30 days of notice of an order on this motion. Plaintiff's responses demonstrate an abuse of the discovery process; thus sanctions are warranted. Sanctions are GRANTED in the amount of $500 to be paid within 30 days of notice of an order on this motion. This sanctions amount has been calculated as 10 follows: Counsel McCutchan has estimated a total amount of 3.1 hours incurred on 1 drafting the motion, 1.8 hours on “responding to the opposition,” 1.9 hours on drafting 12 Jim Nord’s reply, and 0.8 hours in reviewing the tentative ruling. However, no reply to 13 the opposition was filed. Therefore the total amount of hours represented as spent on 14 this motion is 3.9. The Court estimates an additional 1.1 hours was expended for 15 prepping for and appearing at the hearing. The hourly rate is calculated as $400. 16 Therefore, the total fees incurred is $2,000. Defendant Nord has prevailed on only one 17 fourth of the motion, therefore sanctions shall be imposed in the amount of $500. 18 The Court is aware of Plaintiff's history of not paying the sanctions ordered 19 against him. The Court believes that any further imposition of monetary sanctions 20 against Plaintiff would be futile to deter future abuses of the discovery process. Plaintiff 21 cannot continue to refuse to provide substantive discovery while demanding it from his 22 opponents. Plaintiff is reminded that the Court will consider evidentiary, issue or even 23 terminating sanctions for any further abuses of the discovery process by him. “ 24 25 DATED: March | > , 2023 26 27 CH get the Superior M. HONIGSBER Court 28 -12- SCV-263456 PROOF OF SERVICE BY MAIL I certify that I am an employee of the Superior Court of California, County of Sonoma, and that my business address is 600 Administration Dr., Room 107-J, Santa Rosa, California, 95403; that I am not a party to this case; that I am over the age of 18; that I am readily familiar with this office's practice for collection and processing of correspondence for mailing with the United States Postal Service; and that on the date shown below I placed a true copy of RULING ON SUBMITTED MATTER in an envelope, sealed and addressed as shown below, for collection and mailing at Santa Rosa, California, first class, postage fully prepaid, following ordinary business practices. Date: March 13, 2023 Robert Oliver Clerk of the Court By: Melissa JM Watery Melissa JM Waters, Deputy Clerk -ADDRESSEES- RICHARD ABEL 2222 CLEVELAND AVENUE APT 1002 SANTA ROSA CA 95403 B EDWARD MCCUTCHAN JR SUNDERLAND MCCUTCHAN LLP 1083 VINE STREET SUITE 907 HEALDSBURG CA 95448 JOSEPH § PICCHI GALLOWAY LUCCHESE EVERSON & PICCHI 2300 CONTRA COSTA BLVD STE 350 PLEASANT HILL CA 94523-2398 NANSI IDA WEIL 15898 WRIGHT LN GUERNEVILLE CA 95446 POS-030 ATTORNEY OR PARTY WITHOUT ATTORNEY (Name, State Bar number, and address): FOR COURT USE ONLY Richard Abel 2222 Cleveland Avenue, Apt. 1002 Santa Rosa, CA 95403 TELEPHONE NO.:(707) 340-3894 FAX NO. (Optional) E-MAIL ADDRESS (Optional): ATTORNEY FOR (Nano): Plaintiff pro per ‘SUPERIOR COURT OF CALIFORNIA, COUNTY OF SONOMA street anpress:600 Administration Drive, Room 107-J maine aopress:600 Administration Drive, Room 107-J city aNDzP cove: Santa Rosa, CA 95403 srancu nawe:Civil Division - Dept. 18 PETITIONERIPLAINTIFF: Abel RESPONDENT/DEFENDANT:McCutchan, Jr. et.al. CASE NUMBER: PROOF OF SERVICE BY FIRST-CLASS MAIL—CIVIL SCV-263456 (Do not use this Proof of Service fo show service of a Summons and Complaint) | am over 18 years of age and not a party to this action. | am a resident of or employed in the county where the mailing took place. My residence or business address is: 5805 Cuneo Court, Santa Rosa, CA 95401 On (date):November 7, 2023 | mailed from (city and state): Santa Rosa, California the following documents (specify): PLAINTIFF'S REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF PLAINTIFF'S OPPOSITION TO MOTION TO ENFORCE SETTLEMENT AGREEMENT [1] The documents are listed in the Attachment to Proof of Service by First-Class Mail—Civil (Documents Served) (form POS-030(D)). I served the documents by enclosing them in an envelope and (check one): a. [52] depositing the sealed envelope with the United States Postal Service with the postage fully prepaid. b. [_] placing the envelope for collection and mailing following our ordinary business practices. | am readily familiar with this business's practice for collecting and processing correspondence for mailing. On the same day that correspondence is placed for collection and mailing, it is deposited in the ordinary course of business with the United States Postal Service in a sealed envelope with postage fully prepaid. The envelope was addressed and mailed as follows: a. Name of person served: SEE BELOW b, Address of person served: Joseph Picchi B. Edward McCutchan, Jr Galloway, Lucchese and Picchi Sunderland-McCutchan, LLP 2300 Contra Costa Blvd. Suite 350 1803 Vine Street PMB 907, The UPS Store Pleasant Hill, CA 94523 Healdsby , CA 95448 The name and address of each person to whom | mailed the documents is listed in the Attachment to Proof of Service by First-Class Mail—Civil (Persons Served) (POS-030(P)). | declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Date: November 7, 2023 Henry Crigler (TYPE OR PRINT NAME OF PERSON COMPLETING THIS FORM) » PhunCh SIGNATURE FF renal ‘COMPLETING THIS FORM) Form Approved for Optional Use PROOF OF SERVICE BY FIRST-CLASS MAIL—@IWIL Code af Civil Procedure, §§ 1013, 1013 Judicial Council of California ‘wnvw.courtinfa.ca.gov POS-030 [New January 1, 2005] Proof of Service)