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Eric P. Oren, #106129
E-FILED
Law Offices of Eric P. Oren 3/11/2016
225 West Shaw Avenue, Suite 105 FRESNO COUNTY SUPERIOR COURT
Fresno, California 93704
Telephone: (559) 224-5900 By: L. Irion, Deputy
Facsimile: (559) 224-5905
Attorneys for Plaintiff, JANE HANSEN, by and through her Guardian ad Litem, JUDITH
LYNN RUSH
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF FRESNO
JANE HANSEN, by and through her Case No.: 15CECG03526
Guardian ad Litem, JUDITH LYNN
10 RUSH NOTICE OF MOTION AND
MOTION TO COMPEL INITIAL
11 Plaintiff, RESPONSES TO DISCOVERY
FROM DEFENDANT JOHN GRADY
12 Vv, WITH REQUEST FOR SANCTIONS;
MEMORANDUM OF POINTS AND
13 JOHN GRADY; COMFORT MED AUTHORITIES IN SUPPORT OF
TRANS, INC. and DOES 1 through 25, MOTION; DECLARATION OF ERIC
14 inclusive P. OREN IN SUPPORT OF
MOTION; [PROPOSED] ORDER
15 Defendants.
Date: 03/29/16
16 Time: 3:30 p.m.
Dept. 402
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Complaint Filed: November 17, 2015
18 Trial: June 20, 2016
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TO DEFENDANTS AND THEIR ATTORNEY OF RECORD:
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PLEASE TAKE NOTICE that on March 29, 2016, 2016 at 3:30 p.m. or as soon
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thereafter as the matter can be heard, in Department 402 of the above court located at 1130 O
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Street, Fresno, California 93721, Plaintiff JANE HANSEN, by and through her Guardian ad
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Litem, JUDITH LYNN RUSH will and hereby does, move the Court for an order that
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Defendant JOHN GRADY provide responses to discovery (form interrogatories, set one,
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26 special interrogatories, set one, request for production of documents, set one, and request for
admissions, set one).
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Laver 1
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NOTICE OF MOTION AND MOTION TO COMPEL INITIAL RESPONSES TO DISCOVERY FROM.
DEFENDANT JOHN GRADY WITH REQUEST FOR SANCTIONS; MEMORANDUM OF POINTS
AND AUTHORITIES IN SUPPORT OF MOTION; DECLARATION OF ERIC P. OREN IN SUPPORT
OF MOTION; [PROPOSED] ORDER
Plaintiff will further move the Court for an order of sanctions against Defendant JOHN
GRADY and his counsel Brian Leach, jointly and severally for their misuse of the discovery
process pursuant to Code of Civil Procedure section 2023.030, et seq.
This Motion is made pursuant to Code of Civil Procedure sections 2030.290, 2031.300,
2033.210 on the grounds that the information and documents requested are relevant to the
subject matter of this action, and Defendant’s refusal to provide responses to the discovery is
without substantial justification.
This motion is based upon this Notice, the Memorandum of Points and Authorities filed
herewith, the Declaration of Eric P. Oren, the files and records of this action, and on any other
10 and further oral or documentary evidence as may be presented at the hearing of this motion.
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12 DATED: March 11, 2016 LAW OFFICES OF E P. OREN, INC.
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14 By:
Eric P. ren, Attorney for
Plaintiff, JANE HANSEN, by and through her
15 Guardian ad Litem, JUDITH LYNN RUSH
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via 8 NOTICE OF MOTION AND MOTION TO COMPEL INITIAL RESPONSES TO DISCOVERY FROM
DEFENDANT JOHN GRADY WITH REQUEST FOR SANCTIONS; MEMORANDUM OF POINTS
AND AUTHORITIES IN SUPPORT OF MOTION; DECLARATION OF ERIC P. OREN IN SUPPORT
OF MOTION; [PROPOSED] ORDER
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFE’S
MOTION TO COMPEL INITIAL RESPOSNES TO DISCOVERY FROM
DEFENDANT JOHN GRADY WITH REQUEST FOR SANCTIONS
Plaintiff JANE HANSEN, by and through her Guardian ad Litem, JUDITH LYNN
RUSH hereby respectively submits the following Memorandum of Points and Authorities in
Support of the present motion to compel with request for sanctions.
I
INTRODUCTION
This dispute arises out of Defendant JOHN GRADY’S failure to provide responses to
Plaintiff's Form Interrogatories, Set One, Special Interrogatories, Set One, Request for
Production of Documents, Set One, and Request for Admissions, Set One after multiple
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extensions were granted to Defendant to provide verified responses. Although Defendant
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indicated that responses to Plaintiff's discovery requests without objections would be forth
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coming the week of February 29, 2016, as of the date of the filing of this motion, the responses
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have not been received. Defendant is aware the court has granted Plaintiffs motion for trial
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setting preference based on Plaintiffs condition and trial is set to commence on June 20, 2016;
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however, Defendant continues to refuse to provide responses to discovery including production
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of documents. Defendant’s actions are without substantial justification and are clearly
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intended to delay the litigation of this matter.
18 Il.
19 FACTUAL AND PROCEDURAL BACKGROUND
This case involves significant injuries to Plaintiff, Jane Hansen, an 89-year-old wheel
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chair bound woman living in an assisted living home in Fresno. Plaintiff is in poor health and
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suffers from Alzheimer’s disease. The incident involved in this case occurred on July 29,
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2015. Plaintiff's injuries are caused due to the negligence of the defendants when loading and
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placing her inside a wheelchair van to transport her to her residence. Defendant failed to
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properly secure Plaintiff in her wheelchair and, during the process of loading her into the
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wheelchair van she fell out of her wheelchair sustaining significant injuries.
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NOTICE OF MOTION AND MOTION TO COMPEL INITIAL RESPONSES TO DISCOVERY FROM
DEFENDANT JOHN GRADY WITH REQUEST FOR SANCTIONS; MEMORANDUM OF POINTS
AND AUTHORITIES IN SUPPORT OF MOTION; DECLARATION OF ERIC P. OREN IN SUPPORT
OF MOTION; [PROPOSED] ORDER
1 Plaintiff filed her complaint in this action on November 17, 2015. (See Declaration of
Eric P. Oren (“Oren Decl.” at 45).
On December 29, 2015, Plaintiff's counsel notified defense counsel by email that
Plaintiff would be requesting a preferential trial setting of this case due to the health and
advanced age of Plaintiff. (Oren Decl. 6) On December 30, 2015 Plaintiff served the
defense with Plaintiffs motion for trial setting preference. (Oren Decl. 7) It was served
again on February 1, 2016 via overnight mail. (Oren Decl. 7)
On January 13, 2016, Defendants filed their Answer to plaintiffs complaint. (Oren
Decl. 8)
10 On January 14, 2016, Plaintiff propounded written discovery (request for admissions,
11 special interrogatories, request for production of documents, and form interrogatories) upon
Defendant JOHN GRADY and responses were due on February 18, 2016. (Oren Decl. 9) On
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13 January 14, 2016, Plaintiff also served a Notice of Taking Deposition with Request for
Production of Documents on Defendant JOHN GRADY for his deposition on March 2, 2016.
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15 (Oren Decl. 10) On February 10, 2016, Plaintiff served an Amended Notice of Taking
16 Deposition with Request for Production of Documents on Defendant JOHN GRADY for his
17 deposition on March 1, 2016. (Oren Decl. 10) No written objections by Defendant was
18 received regarding the date, time, location or documents requested in the amended deposition
19 notice of Defendant JOHN GRADY. (Oren Decl. 410)
20 On January 4, 2016, Plaintiff propounded written discovery (request for admissions,
21 special interrogatories, request for production of documents, and form interrogatories) upon
22 Defendant COMFORT MED TRANS., INC. and responses were due on February 8, 2016
23 (Oren Decl. 11) Following service of the discovery upon Defendants, defense counsel
requested an extension to respond to the discovery propounded upon COMFORT MED
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25 TRANS., INC. so as to make COMFORT MED TRANS., INC.’S responses due on the same
26 date (2/18/16) as the discovery pounded upon Defendant JOHN GRADY. (Oren Decl. 12)
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NOTICE OF MOTION AND MOTION TO COMPEL INITIAL RESPONSES TO DISCOVERY FROM
DEFENDANT JOHN GRADY WITH REQUEST FOR SANCTIONS; MEMORANDUM OF POINTS
AND AUTHORITIES IN SUPPORT OF MOTION; DECLARATION OF ERIC P. OREN IN SUPPORT
OF MOTION; [PROPOSED] ORDER
Out of professional courtesy, Plaintiffs counsel agreed to this request for an extension of time.
(Oren Decl. 412)
On February 8, 2016 defense counsel’s office contacted Plaintiff's counsel and
requested a one-week extension through February 25, 2016 to respond to the written discovery
on behalf of Defendants. (Oren Decl. (13) Plaintiff's counsel again extended the professional
courtesy and agreed to the extension provided that Plaintiff's counsel received the verified
responses via email on February 25, 2016 as the deposition of Defendant JOHN GRADY was
properly noticed and scheduled to take place on March 1, 2016. (Oren Decl. 13) The
defense agreed to this and sent Plaintiff's counsel a confirming email regarding the one-week
extension. (Oren Decl. 13) On February 25, 2016, Defendants did not provide discovery
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11 responses as promised on February 8, 2016. (Oren Decl. 13)
12 On Friday afternoon, February 26, 2016, Defense counsel notified Plaintiff's counsel
that the deposition of Defendant, JOHN GRADY would not take place on March 1, 2016
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14 because he was going to attend a deposition in another case. Plaintiff's counsel strongly
15 objected to this late notice. (Oren Decl. §14) The dispute regarding the late, unilateral
16 cancellation of the deposition of JOHN GRADY by defense counsel is set forth in Plaintiff's
17 pre-trial Discovery Conference Statement for which Plaintiff is waiting to obtain a conference
18 date from the Judge.
19 On February 27, 2016, defense counsel, Brian Leach by email informed Plaintiffs
20 counsel that his clients were going to provide alternate dates for the deposition of JOHN
21 GRADY on Monday, February 29, 2016 and would be providing responses to Plaintiff's
22 discovery requests (without objections) during the week of February 29, 2016. (Oren Decl.
23 715)
24 Plaintiffs motion for trial setting preference was tentatively granted by tentative ruling
25 issued on February 29, 2016 (hearing date of March 1, 2016). Defendant’s opposition was not
26 timely filed and not considered by the Court. The defense did not request any hearing and the
27 tentative ruling was adopted as of 3/1/16. On March 1, 216 Defense counsel, Brian Leach
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NOTICE OF MOTION AND MOTION TO COMPEL INITIAL RESPONSES TO DISCOVERY FROM
DEFENDANT JOHN GRADY WITH REQUEST FOR SANCTIONS; MEMORANDUM OF POINTS
AND AUTHORITIES IN SUPPORT OF MOTION; DECLARATION OF ERIC P, OREN IN SUPPORT
OF MOTION; [PROPOSED] ORDER
agreed to a trial date of 6/20/16. The Court has now set this case for trial on June 20, 2016.
(Oren Decl. $16)
Defense counsel has given no explanation for his continued failure and refusal to
provide responses to written discovery in this action. The conduct of the Defense appears to be
an intentional delay of this action by not producing JOHN GRADY for his deposition, not
providing written discovery responses, and filing a generic third-party cross-complaint for
indemnity against the operator of the residential facility where Plaintiff was picked up by
Defendant, JOHN GRADY on the date of the incident (7/29/15) wherein she suffered
significant injuries due to the negligence of Defendants. The Defendants have known the
10 identity of the Cross-Defendant since the date of the incident yet waited until March 1, 2016, to
11 file_a_cross-complaint, While Defense counsel was extended the professional courtesy of
12 ultiple extensions to provide responses to written discovery, no responses have ever been
provided nor has there been any indication that they will be provided. Although Defense
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14 counsel represented that responses would be provided during the week of February 29, 2016,
15 that time has come and gone with no responses being provided and no further communication
16 by defense counsel. (Oren Decl. (417, 18)
17 Plaintiff is now seeking the court’s assistance with this matter as Plaintiff is in poor
18 health and discovery and deposition testimony is needed to prepare for the June 20, 2016 trial
19 date in this matter.
Til.
20 LEGAL ARGUMENT
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A. PLAINTIFF IS ENTITLED TO AN ORDER COMPELLLING DEFENDANT
22 JOHN GRADY TO PROVIDE RESPONSES WITHOUT OBJECTIONS TO
PLAINTIFF’S DISCOVERY REQUESTS
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1. Form Interrogatories, Set One and Special Interrogatories, Set One.
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California Code of Civil Procedure section 2030.260 provides, “Within 30 days after
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service of interrogatories, the party to whom the interrogatories are propounded shall serve the
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original response to them on the propounding party....” The original of the responses to
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NOTICE OF MOTION AND MOTION TO COMPEL INITIAL RESPONSES TO DISCOVERY FROM
DEFENDANT JOHN GRADY WITH REQUEST FOR SANCTIONS; MEMORANDUM OF POINTS
AND AUTHORITIES IN SUPPORT OF MOTION; DECLARATION OF ERIC P. OREN IN SUPPORT
OF MOTION; [PROPOSED] ORDER
interrogatories, with verification under penalty of perjury, is due within 30 days of the date the
interrogatories are served. (CCP §§2030.250 — 2030.260) The time period to respond to
discovery served by U.S. Mail is extended five calendar days. (CCP §§1013, 2016.050) Code
of Civil Procedure section 2030.270 provides, “The party propounding interrogatories and the
responding party may agree to extend the time for service of a response to a set of
interrogatories ... to a date beyond that provided in Section 2030.260....”
California Code of Civil Procedure section 2030.290 provides, “If a party to whom
interrogatories are directed fails to serve a timely response, ... (a) The party to whom the
interrogatories are directed waives any right to exercise the option to produce writings under
10 Section 2030.230, as well as any objection to the interrogatories, including one based on
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privilege or on the protection for work product under Chapter 4 (commencing with Section
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2018.010) ... (b) The party propounding the interrogatories may move for an order compelling
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response to the interrogatories.
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Here, Defendant JOHN GRADY has failed to provide verified responses, at all, let
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alone timely responses to Plaintiffs Form Interrogatories, Set One and Special Interrogatories,
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Set One despite the multiple extensions defense counsel requested and Plaintiff's counsel
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agreed to out of professional courtesy. Plaintiff propounded Form Interrogatories, Set One and
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Special Interrogatories, Set One on Defendant JOHN GRADY by U.S. Mail on January 14,
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2016. JOHN GRADY was initially required to respond by February 18, 2016; however, after
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several extensions to respond to the discovery were agreed to by Plaintiff's counsel, Defendant
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JOHN GRADY was required to provide responses via e-mail on February 25, 2016. As of the
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date of the filing of this motion, no responses have been received even after defense counsel
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indicated that responses without objections would be provided the week of February 29, 2016.
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Further, because JOHN GRADY has failed to provide timely verified responses, JOHN
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26 GRADY has waived any objection to the interrogatories, including objections based on
privilege or on the protection for work product. Therefore, JOHN GRADY should be
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Offices of 7
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NOTICE OF MOTION AND MOTION TO COMPEL INITIAL RESPONSES TO DISCOVERY FROM
DEFENDANT JOHN GRADY WITH REQUEST FOR SANCTIONS; MEMORANDUM OF POINTS
AND AUTHORITIES IN SUPPORT OF MOTION; DECLARATION OF ERIC P, OREN IN SUPPORT
OF MOTION; [PROPOSED] ORDER
compelled to respond without objections to Plaintiff's Form Interrogatories, Set One and
Special Interrogatories, Set One.
2. Request for Production of Documents, Set One.
Pursuant to California Code of Civil Procedure section 2031.260, a party to whom an
inspection demand or request for production of documents has been served has an obligation to
respond in writing under oath within 30 days of service of the demand. The response must
state (1) that the party will comply with the particular demand, (2) that the party lacks the
ability to comply with the particular demand, or (3) the objections to the particular demand.
(CCP §§2031.210 — 201.240) The original of the response, with verification under penalty of
10 perjury, must be served no later than 30 days after service of the demand. The time period to
11 (CCP §§1013,
respond to discovery served by U.S. Mail is extended five calendar days.
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2016.050) Code of Civil Procedure section 2031.270 provides, the party demanding inspection,
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copying, testing or sampling and the responding party may agree to extend the date for
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...service of a response to a date ... beyond those provided in Sections 2031.030, 2031.210,
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2031.260 and 2031.280.”
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California Code of Civil Procedure section 2031.300 provides, “If a party to whom a
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demand for inspection ... fails to serve a timely response ... the party to whom the demand for
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inspection is directed waives any objection to the demand, including one based on privilege or
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on the protection for work under... (b) the party making the demand may move for an order
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response to the demand.
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Here, again, Defendant JOHN GRADY has refused to respond to Plaintiff's Request
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for Production of Documents, Set One. Plaintiff propounded her first set of production
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requests on JOHN GRADY by U.S. mail on January 14, 2016. JOHN GRADY was initially
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required to respond by February 18, 2016; however, after several extensions to respond to the
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26 discovery were agreed to by Plaintiff's counsel, Defendant JOHN GRADY was required to
provide responses via e-mail on February 25, 2016. As of the date of the filing of this motion,
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(OTICE OF MOTION AND MOTION TO COMPEL INITIAL RESPONSES TO DISCOVERY FROM
DEFENDANT JOHN GRADY WITH REQUEST FOR SANCTIONS; MEMORANDUM OF POINTS
AND AUTHORITIES IN SUPPORT OF MOTION; DECLARATION OF ERIC P. OREN IN SUPPORT
OF MOTION; [PROPOSED] ORDER
no responses have been received even after defense counsel represented that responses without
objections would be provided the week of February 29, 2016. Further, because JOHN
GRADY has failed to provide timely verified responses (including production of documents),
JOHN GRADY has waived any objections to Plaintiff's requests for production of documents,
including objections based on privilege or on the protection for work product. Therefore,
JOHN GRADY should be compelled to respond without objections and produce documents
responsive to Plaintiff's Request for Production of Documents, Set One.
3. Requests For Admissions, Set One.
California Code of Civil Procedure section 2033.210 provides, “The party to whom
10 requests for admissions have been directed shall respond in writing under oath separately to
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each request ... (b) each response shall answer the substance of the requested admissions, or
12 The original of the responses to admissions,
set forth an objection to the particular request.
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with verification under penalty of perjury, is due within 30 days of the date the admissions are
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served. (CCP §§2033.240, 2033.250) The time period to respond to discovery served by U.S.
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Mail is extended five calendar days. (CCP §§1013, 2016.050)
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California Code of Civil Procedure section 2033.280 provides, “If a party to whom
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requests for admissions are directed fails to serve a timely response ... (a) the party to whom
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the requests for admission are directed waives any objection to the requests, including one
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based on privilege or on the protection for work product ... (b) the requesting party may move
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for an order that the genuineness of any documents and the truth of any matters specified in the
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request be deemed admitted ....”
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Here, Defendant JOHN GRADY has failed to provide a verified response to Plaintiff's
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Request for Admissions, Set One. Plaintiff propounded her first set of admissions on GRADY
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by U.S. mail on February 14, 2016. Defendant was obligated to provide a response by
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26 February 18, 2016; however, after several extensions to respond to the discovery were agreed
27 to by Plaintiff's counsel out of professional courtesy, Defendant JOHN GRADY was required
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NOTICE OF MOTION AND MOTION TO COMPEL INITIAL RESPONSES TO DISCOVERY FROM
DEFENDANT JOHN GRADY WITH REQUEST FOR SANCTIONS; MEMORANDUM OF POINTS
AND AUTHORITIES IN SUPPORT OF MOTION; DECLARATION OF ERIC P. OREN IN SUPPORT
OF MOTION; [PROPOSED] ORDER
to provide responses via e-mail on February 25, 2016. To date, Plaintiff has yet to receive a
verified response from JOHN GRADY to Plaintiff's Request for Admissions, Set One even
after defense counsel indicated that responses without objections would be provided the week
of February 29, 2016. As such, the Court must make an order establishing the truth of each
matter specified since JOHN GRADY has not served a timely, verified response. Therefore,
the court should deem each request for admission as “admitted”,
B. PLAINTIFF IS ENTITLED TO AN AWARD OF SANCTIONS
The court “shall” impose a monetary sanction against whichever party loses on the
motion to compel compliance ... unless it finds that party made or opposed the motion “with
10 substantial justification” or other circumstances make sanctions “unjust.” (CCP §§
11 Civil Code of Civil Procedure Section 2023.030 directs this
2023.030(a)), 2030.300(d)).
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Court, in its discretion, to order a sanction “against anyone engaging in conduct that is a
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misuse of the discovery process.” ‘[This] court may impose a monetary sanction ordering
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that one engaging in the misuse of the discovery process, or any attorney advising that conduct,
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or both pay the reasonable expenses, including attorney’s fees, incurred by anyone asa result
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of that conduct.” (CCP §2023.030(a).) Code of Civil Procedure Section 2023.010, in pertinent
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part, provides that “Misuses of the discovery process include, but are not limited to the
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following ... (d) failing to respond or submit to and authorized method of discovery ...
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opposing, unsuccessfully and without substantial justification, a motion to compel or to
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limit discovery [and] ... (i) failing to confer...with an opposing party or attorney in a
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reasonable and good faith attempt to resolve informally any dispute concerning
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discovery...”
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Here, Defendant has engaged in the misuse of the discovery process by failing to
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respond entirely to Plaintiff's discovery requests although multiple extensions for additional
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time to respond were granted to Defendant by Plaintiff's counsel out of professional courtesy.
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27 No explanation was provided by Defendant for his continued failure and refusal to respond to
Gl RIC mt 10
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Fresno,© ria 98708 NOTICE OF MOTION AND MOTION TO COMPEL INITIAL RESPONSES TO DISCOVERY FROM
DEFENDANT JOHN GRADY WITH REQUEST FOR SANCTIONS; MEMORANDUM OF POINTS
AND AUTHORITIES IN SUPPORT OF MOTION; DECLARATION OF ERIC P. OREN IN SUPPORT
1F MOTION; [PROPOSED] ORDER
Plaintiff's discovery requests, Defendant has strung Plaintiff along with his promises that
responses would be forthcoming and most recently defense counsel indicated responses
without objections would be provided the week of February 29, 2016; however, no responses
have been provided although Defendant has been fully aware of Plaintiff's intention to
expeditiously litigate this matter based on Plaintiff's health and age. Defendant and his
counsel’s actions amount to an intentional delay of discovery and the litigation of this matter.
Defendant’s actions clearly amount to an abuse of the discovery system and any opposition to
this motion by Defendant will be made without any substantial justification.
Therefore, Plaintiff is entitled to an award of sanctions for the reasonable costs,
10 including attorneys’ fees, associated with bringing this motion in the amount of $1,350.00
11 against Defendant JOHN GRADY and defense counsel Brian Leach, jointly and severally.
12 (Oren Decl. at $17)
IV.
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14 CONCLUSION
15 For the foregoing reasons, Plaintiff hereby respectfully request that this Court grant the
16 present motion against Defendant JOHN GRADY and: (1) Order JOHN GRADY to provide
17 verified responses to form interrogatories, Set. No. 1; (2) order Defendant JOHN GRADY
18 provide verified responses to Special Interrogatories, Set One; (3) order Defendant JOHN
19 GRADY to provide verified responses to Plaintiff's Request for Productions of Documents, Set
20 No. 1; (4) make an order establishing the truth of each matter specified in Plaintiffs Request
21 for Admissions, Set One by deeming each request for admission as “admitted” or, in the
22 alternative ordering that Defendant JOHN GRADY provide verified responses; and (5) order
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OTICE OF MOTION AND MOTION TO COMPEL INITIAL RESPONSES TO DISCOVERY FROM
DEFENDANT JOHN GRADY WITH REQUEST FOR SANCTIONS; MEMORANDUM OF POINTS
AND AUTHORITIES IN SUPPORT OF MOTION; DECLARATION OF ERIC P. OREN IN SUPPORT
OF MOTION; [PROPOSED] ORDER
1 sanctions in the amount of $1,410 against Defendant JOHN GRADY and defense counsel,
2 jointly and severally.
p g—
3 DATED: March 11, 2016 Law Offices of Eric P. Or
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By:
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Eriic P, ren, Attorne: y
Plaintiff, JANE HANS: N, , by and through her
6 Guardian ad Litem, JUDITH LYNN RUSH
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Frasna, Cablornia 04 NOTICE OF MOTION AND MOTION TO COMPEL INITIAL RESPONSES TO DISCOVERY FROM
DEFENDANT JOHN GRADY WITH REQUEST FOR SANCTIONS; MEMORANDUM OF POINTS
AND AUTHORITIES IN SUPPORT OF MOTION; DECLARATION OF ERIC P. OREN IN SUPPORT
OF MOTION; [PROPOSED] ORDER
DECLARATION OF ERIC P. OREN IN SUPPORT OF PLANTIFF’S MOTION TO
COMPEL INITIAL RESPONSES TO DISCOVERY FROM DEFENDANT JOHN
GRADY WITH REQUEST FOR SANCTIONS
I, ERIC P. OREN, declare:
1 I am an attorney duly admitted to practice law before all Courts of the State of
California, and I am counsel of record for Plaintiff JANE HANSEN in this action.
2 I have personal knowledge of the following matters, except as to those stated
upon information and belief, and as to those matter I believe true, and if called as a witness in
this action, after being duly sworn, I could and would competently testify thereto.
3 Plaintiff in this action, Jane Hansen, is 89 years old and in poor health and
10 wheelchair bound. A declaration regarding the health of Plaintiff was prepared by Plaintiff's
11 daughter/GAL, Judi Rush, and was submitted to the Court in support of Plaintiff's application
12 for Trial Setting Preference in this case (which was granted), At the time of the incident giving
13 rise to this case (7/29/15), Plaintiff lived in a residential care facility operated by Kristie
14 McIntosh where plaintiff receives assistance with all of her daily needs. Plaintiff still resides at
15 this same facility.
16 4. This action is based upon the negligence and violation of safety statutes by
17 defendant, JOHN GRADY and his employer, Comfort Med Trans., Inc. for failing to fasten
18 plaintiff in her wheelchair during the course of placing her in defendants’ wheelchair van to
19 transport her (for a fee) from a medical appointment to her residential care facility. As result of
20 the negligence of defendants (a Common Carrier), plaintiff was thrown out of her wheelchair
21 suffering severe injuries. Defendants were required to fasten Plaintiff into her wheelchair to
22 prevent her from becoming dislodged from her wheelchair during placement in the van---
23 which was also required pursuant to California Public Utilities Code 211 and California Civil
24 Code 2168, and also subject to the requirements of 22 CCR 51231.2 relating to wheelchair van
25 requirements which requires that "all wheelchair passengers must be secured to wheelchairs
26 while being loaded, unloaded or transported."
27 5 Plaintiff filed her complaint in this action on 11/17/15.
25 13
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NOTICE OF MOTION AND MOTION TO COMPEL INITIAL RESPONSES TO DISCOVERY FROM
DEFENDANT JOHN GRADY WITH REQUEST FOR SANCTIONS; MEMORANDUM OF POINTS
AND AUTHORITIES IN SUPPORT OF MOTION; DECLARATION OF ERIC P, OREN IN SUPPORT
OF MOTION; [PROPOSED] ORDER
6 I sent an email to defense counsel on 12/29/15 notifying him that I would be
requesting a preferential trial setting of this case due to the health and advanced age of
plaintiff.
7 On 12/30/15 I served the defense with plaintiffs motion for trial setting
preference. It was served again on 2/1/16 via overnight mail.
8 Defendants filed their answer to plaintiff's complaint on 1/13/16.
9 Plaintiff propounded written discovery (request for admissions, Set One,
special interrogatories, Set One, request for production of documents, Set One, and form
interrogatories, Set One) upon JOHN GRADY on 1/14/16 and responses were due on 2/18/16.
10 True and correct copies of Plaintiff's Form Interrogatories, Set One, Special Interrogatories,
11 Set One, Request for Production of Documents, Set One and Request for Admissions, Set One
12 to Defendant JOHN GRADY are attached hereto and incorporated herein by this reference as
Exhibits “A”, “B”, “C”, and “D”.
13
14 10. On 1/14/16, Plaintiff also served a Notice of Taking Deposition with Request
15 for Production of Documents on Defendant JOHN GRADY for his deposition on March 2,
16 2016. On 2/10/16, Plaintiff served an Amended Notice of Taking Deposition with Request for
17 Production of Documents on Defendant JOHN GRADY for his deposition on March 1, 2016.
18 No written objections by Defendant was received regarding the date, time, location or
19 documents requested in the amended deposition notice of JOHN GRADY.
11. Plaintiff propounded written discovery (request for admissions, special
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21 interrogatories, request for production of documents, and form interrogatories) upon Comfort
22 Med Trans., Inc. on 1/4/16 and responses were due on 2/8/16.
23 12. Defense counsel requested an extension to respond to the discovery propounded
24 upon Comfort Med Trans., Inc. so that responses would be due on the same date (2/18/16) as
25 the discovery pounded upon JOHN GRADY. Out of professional courtesy, I agreed to this
26 request for an extension of time.
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NOTICE OF MOTION AND MOTION TO COMPEL INITIAL RESPONSES TO DISCOVERY FROM
DEFENDANT JOHN GRADY WITH REQUEST FOR SANCTIONS; MEMORANDUM OF POINTS
AND AUTHORITIES IN SUPPORT OF MOTION; DECLARATION OF ERIC P. OREN IN SUPPORT
OF MOTION; [PROPOSED] ORDER
13. On 2/18/16 defense counsel’s office contacted me and requested a one-week
extension through 2/25/16 to respond to the written discovery on behalf of Comfort Med
Trans., Inc., and JOHN GRADY. I again extended the professional courtesy and agree to the
extension provided that I received the verified responses via email on 2/25/16 I had the
deposition of JOHN GRADY properly noticed and scheduled to take place on March 1, 2016.
The defense agreed to this and sent me a confirming email regarding the 1-week extension.
Defendants did not provide discovery responses as promised on February 25, 2016.
14. Defense counsel notified me on Friday afternoon, February 26, 2016 that the
deposition of defendant, JOHN GRADY would not take place on March 1, 2016 because he
10 was going to attend a deposition in another case. I strongly objected to this late notice. This
11 dispute is the subject of a pre-trial discovery conference which has been requested with Judge
12 Hamilton pursuant to Fresno local rules wherein Plaintiff has requested that the court order that
13 JOHN GRADY appear for his deposition on a date set by the court.
14 15. Defense counsel, Brian Leach sent me an email on 2/27/16 stating that his
15 clients were going to provide alternate dates for the deposition of JOHN GRADY on Monday
16 (February 29, 2016) and would be providing responses to the written discovery (without
17 objections) during the week of February 29, 2016. Defense counsel has neither provided any
18 discovery responses promised as of the date of this declaration nor has he provided any
19 alternate dates for the deposition of JOHN GRADY.
20 16. Plaintiff's motion for trial setting preference was tentatively granted by tentative
21 ruling issued on February 29, 2016 (hearing date of March 1, 2016). Defendant’s opposition
22 was not timely filed and not considered by the Court. The defense did not request any hearing
23 and the tentative ruling was adopted as of 3/1/16. On 3/1/16 Defense counsel, Brian Leach
24 agreed to a trial date of 6/20/16. The Court has now set this case for trial on June 20, 2016.
25 17. Defense counsel has given no explanation for his continued failure and refusal
26 to provide responses to written discovery in this action. The conduct of the Defense appears to
27 be an intentional delay of this action by not producing JOHN GRADY for his deposition, not
15
NOTICE OF MOTION AND MOTION TO COMPEL INITIAL RESPONSES TO DISCOVERY FROM
DEFENDANT JOHN GRADY WITH REQUEST FOR SANCTIONS; MEMORANDUM OF POINTS
AND AUTHORITIES IN SUPPORT OF MOTION; DECLARATION OF ERIC P. OREN IN SUPPORT
OF MOTION; [PROPOSED] ORDER
providing written discovery responses, and filing a generic third-party cross-complaint for
indemnity against the operator of the residential facility where Plaintiff was picked up by
Defendant, JOHN GRADY on the date of the incident (7/29/15) wherein she suffered
significant injuries due to the negligence of Defendants. The Defendants have known the
identity of the Cross-Defendant since the date of the incident yet waited until March 1, 2016, to
file_a_cross-complaint. While Defense counsel was extended the professional courtesy of
multiple extensions to provide responses to written discovery, no responses have ever been
provided nor has there been any indication that they will be provided. Although Defense
counsel represented that responses would be provided during the week of February 29, 2016,
10 that time has come and gone with no responses being provided and no further communication
11 by defense counsel. In light of the Defense’s demonstrated desire to delay this case,
12
particularly in light of the fact that the defense has known since the end of last year that this
13
was a case involving an elderly woman with poor health which justified a trial setting
14
preference, it is requested that the court order that Defendants’ respond to the written discovery
15
forthwith and award sanctions against Defense counsel in the amount of $1,350, I have spent
16
4.5 hours in preparation of this motion. My hourly rate for this type of litigation is $300 per
17
hour. Therefore, I request that the Court award attorney’s fees in the amount of $1,350 in
18
addition to costs of $60.00 for the filing fee of this motion at a total of $1,410.
19
18. A true and correct copy of my email exchanges with Defense counsel are
20
attached hereto as Exhibit “E”.
21
I declare under penalty of perjury under the laws of the State of California that
22
the foregoing is true and correct and that this declaration was executed on this fl 74 day of
23
1
p
March 2016, at Fresno, California.
24
25 ERIC P. OREN
26
27
tee 16
ER
NOTICE OF MOTION AND MOTION TO COMPEL INITIAL RESPONSES TO DISCOVERY FROM
DEFENDANT JOHN GRADY WITH REQUEST FOR SANCTIONS; MEMORANDUM OF POINTS
AND AUTHORITIES IN SUPPORT OF MOTION; DECLARATION OF ERIC P. OREN IN SUPPORT
OF MOTION; [PROPOSED] ORDER
EXHIBIT A
EricP. Oren, #106129
Law Offices of Eric P. Oren
225 West Shaw Avenue, Suite 105
Fresno, California 93704
Telephone: (559) 224-5900
Facsimile: (559) 224-5905
Attorneys for Plaintiff, JANE HANSEN, by and through her Guardian ad Litem, JUDITH
LYNN RUSH
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF FRESNO
10 Case No.: 15CECG03526
JANE HANSEN, by and through her
ll Guardian ad Litem, JUDITH LYNN RUSH PLAINTIFF’S FORM
INTERROGAT
Preview
Eric P. Oren, #106129 E-FILED Law Offices of Eric P. Oren 3/11/2016 225 West Shaw Avenue, Suite 105 FRESNO COUNTY SUPERIOR COURT Fresno, California 93704 Telephone: (559) 224-5900 By: L. Irion, Deputy Facsimile: (559) 224-5905 Attorneys for Plaintiff, JANE HANSEN, by and through her Guardian ad Litem, JUDITH LYNN RUSH SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF FRESNO JANE HANSEN, by and through her Case No.: 15CECG03526 Guardian ad Litem, JUDITH LYNN 10 RUSH NOTICE OF MOTION AND MOTION TO COMPEL INITIAL 11 Plaintiff, RESPONSES TO DISCOVERY FROM DEFENDANT JOHN GRADY 12 Vv, WITH REQUEST FOR SANCTIONS; MEMORANDUM OF POINTS AND 13 JOHN GRADY; COMFORT MED AUTHORITIES IN SUPPORT OF TRANS, INC. and DOES 1 through 25, MOTION; DECLARATION OF ERIC 14 inclusive P. OREN IN SUPPORT OF MOTION; [PROPOSED] ORDER 15 Defendants. Date: 03/29/16 16 Time: 3:30 p.m. Dept. 402 17 Complaint Filed: November 17, 2015 18 Trial: June 20, 2016 19 TO DEFENDANTS AND THEIR ATTORNEY OF RECORD: 20 PLEASE TAKE NOTICE that on March 29, 2016, 2016 at 3:30 p.m. or as soon 21 thereafter as the matter can be heard, in Department 402 of the above court located at 1130 O 22 Street, Fresno, California 93721, Plaintiff JANE HANSEN, by and through her Guardian ad 23 Litem, JUDITH LYNN RUSH will and hereby does, move the Court for an order that 24 Defendant JOHN GRADY provide responses to discovery (form interrogatories, set one, 25 26 special interrogatories, set one, request for production of documents, set one, and request for admissions, set one). 27 Laver 1 al NOTICE OF MOTION AND MOTION TO COMPEL INITIAL RESPONSES TO DISCOVERY FROM. DEFENDANT JOHN GRADY WITH REQUEST FOR SANCTIONS; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION; DECLARATION OF ERIC P. OREN IN SUPPORT OF MOTION; [PROPOSED] ORDER Plaintiff will further move the Court for an order of sanctions against Defendant JOHN GRADY and his counsel Brian Leach, jointly and severally for their misuse of the discovery process pursuant to Code of Civil Procedure section 2023.030, et seq. This Motion is made pursuant to Code of Civil Procedure sections 2030.290, 2031.300, 2033.210 on the grounds that the information and documents requested are relevant to the subject matter of this action, and Defendant’s refusal to provide responses to the discovery is without substantial justification. This motion is based upon this Notice, the Memorandum of Points and Authorities filed herewith, the Declaration of Eric P. Oren, the files and records of this action, and on any other 10 and further oral or documentary evidence as may be presented at the hearing of this motion. 11 12 DATED: March 11, 2016 LAW OFFICES OF E P. OREN, INC. 13 14 By: Eric P. ren, Attorney for Plaintiff, JANE HANSEN, by and through her 15 Guardian ad Litem, JUDITH LYNN RUSH 16 17 18 19 20 21 22 23 24 25 26 27 2 via 8 NOTICE OF MOTION AND MOTION TO COMPEL INITIAL RESPONSES TO DISCOVERY FROM DEFENDANT JOHN GRADY WITH REQUEST FOR SANCTIONS; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION; DECLARATION OF ERIC P. OREN IN SUPPORT OF MOTION; [PROPOSED] ORDER MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFE’S MOTION TO COMPEL INITIAL RESPOSNES TO DISCOVERY FROM DEFENDANT JOHN GRADY WITH REQUEST FOR SANCTIONS Plaintiff JANE HANSEN, by and through her Guardian ad Litem, JUDITH LYNN RUSH hereby respectively submits the following Memorandum of Points and Authorities in Support of the present motion to compel with request for sanctions. I INTRODUCTION This dispute arises out of Defendant JOHN GRADY’S failure to provide responses to Plaintiff's Form Interrogatories, Set One, Special Interrogatories, Set One, Request for Production of Documents, Set One, and Request for Admissions, Set One after multiple 10 extensions were granted to Defendant to provide verified responses. Although Defendant 11 indicated that responses to Plaintiff's discovery requests without objections would be forth 12 coming the week of February 29, 2016, as of the date of the filing of this motion, the responses 13 have not been received. Defendant is aware the court has granted Plaintiffs motion for trial 14 setting preference based on Plaintiffs condition and trial is set to commence on June 20, 2016; 15 however, Defendant continues to refuse to provide responses to discovery including production 16 of documents. Defendant’s actions are without substantial justification and are clearly 17 intended to delay the litigation of this matter. 18 Il. 19 FACTUAL AND PROCEDURAL BACKGROUND This case involves significant injuries to Plaintiff, Jane Hansen, an 89-year-old wheel 20 chair bound woman living in an assisted living home in Fresno. Plaintiff is in poor health and 21 suffers from Alzheimer’s disease. The incident involved in this case occurred on July 29, 22 2015. Plaintiff's injuries are caused due to the negligence of the defendants when loading and 23 placing her inside a wheelchair van to transport her to her residence. Defendant failed to 24 properly secure Plaintiff in her wheelchair and, during the process of loading her into the 25 wheelchair van she fell out of her wheelchair sustaining significant injuries. 26 27 Law 3 NOTICE OF MOTION AND MOTION TO COMPEL INITIAL RESPONSES TO DISCOVERY FROM DEFENDANT JOHN GRADY WITH REQUEST FOR SANCTIONS; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION; DECLARATION OF ERIC P. OREN IN SUPPORT OF MOTION; [PROPOSED] ORDER 1 Plaintiff filed her complaint in this action on November 17, 2015. (See Declaration of Eric P. Oren (“Oren Decl.” at 45). On December 29, 2015, Plaintiff's counsel notified defense counsel by email that Plaintiff would be requesting a preferential trial setting of this case due to the health and advanced age of Plaintiff. (Oren Decl. 6) On December 30, 2015 Plaintiff served the defense with Plaintiffs motion for trial setting preference. (Oren Decl. 7) It was served again on February 1, 2016 via overnight mail. (Oren Decl. 7) On January 13, 2016, Defendants filed their Answer to plaintiffs complaint. (Oren Decl. 8) 10 On January 14, 2016, Plaintiff propounded written discovery (request for admissions, 11 special interrogatories, request for production of documents, and form interrogatories) upon Defendant JOHN GRADY and responses were due on February 18, 2016. (Oren Decl. 9) On 12 13 January 14, 2016, Plaintiff also served a Notice of Taking Deposition with Request for Production of Documents on Defendant JOHN GRADY for his deposition on March 2, 2016. 14 15 (Oren Decl. 10) On February 10, 2016, Plaintiff served an Amended Notice of Taking 16 Deposition with Request for Production of Documents on Defendant JOHN GRADY for his 17 deposition on March 1, 2016. (Oren Decl. 10) No written objections by Defendant was 18 received regarding the date, time, location or documents requested in the amended deposition 19 notice of Defendant JOHN GRADY. (Oren Decl. 410) 20 On January 4, 2016, Plaintiff propounded written discovery (request for admissions, 21 special interrogatories, request for production of documents, and form interrogatories) upon 22 Defendant COMFORT MED TRANS., INC. and responses were due on February 8, 2016 23 (Oren Decl. 11) Following service of the discovery upon Defendants, defense counsel requested an extension to respond to the discovery propounded upon COMFORT MED 24 25 TRANS., INC. so as to make COMFORT MED TRANS., INC.’S responses due on the same 26 date (2/18/16) as the discovery pounded upon Defendant JOHN GRADY. (Oren Decl. 12) 27 4 NOTICE OF MOTION AND MOTION TO COMPEL INITIAL RESPONSES TO DISCOVERY FROM DEFENDANT JOHN GRADY WITH REQUEST FOR SANCTIONS; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION; DECLARATION OF ERIC P. OREN IN SUPPORT OF MOTION; [PROPOSED] ORDER Out of professional courtesy, Plaintiffs counsel agreed to this request for an extension of time. (Oren Decl. 412) On February 8, 2016 defense counsel’s office contacted Plaintiff's counsel and requested a one-week extension through February 25, 2016 to respond to the written discovery on behalf of Defendants. (Oren Decl. (13) Plaintiff's counsel again extended the professional courtesy and agreed to the extension provided that Plaintiff's counsel received the verified responses via email on February 25, 2016 as the deposition of Defendant JOHN GRADY was properly noticed and scheduled to take place on March 1, 2016. (Oren Decl. 13) The defense agreed to this and sent Plaintiff's counsel a confirming email regarding the one-week extension. (Oren Decl. 13) On February 25, 2016, Defendants did not provide discovery 10 11 responses as promised on February 8, 2016. (Oren Decl. 13) 12 On Friday afternoon, February 26, 2016, Defense counsel notified Plaintiff's counsel that the deposition of Defendant, JOHN GRADY would not take place on March 1, 2016 13 14 because he was going to attend a deposition in another case. Plaintiff's counsel strongly 15 objected to this late notice. (Oren Decl. §14) The dispute regarding the late, unilateral 16 cancellation of the deposition of JOHN GRADY by defense counsel is set forth in Plaintiff's 17 pre-trial Discovery Conference Statement for which Plaintiff is waiting to obtain a conference 18 date from the Judge. 19 On February 27, 2016, defense counsel, Brian Leach by email informed Plaintiffs 20 counsel that his clients were going to provide alternate dates for the deposition of JOHN 21 GRADY on Monday, February 29, 2016 and would be providing responses to Plaintiff's 22 discovery requests (without objections) during the week of February 29, 2016. (Oren Decl. 23 715) 24 Plaintiffs motion for trial setting preference was tentatively granted by tentative ruling 25 issued on February 29, 2016 (hearing date of March 1, 2016). Defendant’s opposition was not 26 timely filed and not considered by the Court. The defense did not request any hearing and the 27 tentative ruling was adopted as of 3/1/16. On March 1, 216 Defense counsel, Brian Leach 5 ERI 22 NOTICE OF MOTION AND MOTION TO COMPEL INITIAL RESPONSES TO DISCOVERY FROM DEFENDANT JOHN GRADY WITH REQUEST FOR SANCTIONS; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION; DECLARATION OF ERIC P, OREN IN SUPPORT OF MOTION; [PROPOSED] ORDER agreed to a trial date of 6/20/16. The Court has now set this case for trial on June 20, 2016. (Oren Decl. $16) Defense counsel has given no explanation for his continued failure and refusal to provide responses to written discovery in this action. The conduct of the Defense appears to be an intentional delay of this action by not producing JOHN GRADY for his deposition, not providing written discovery responses, and filing a generic third-party cross-complaint for indemnity against the operator of the residential facility where Plaintiff was picked up by Defendant, JOHN GRADY on the date of the incident (7/29/15) wherein she suffered significant injuries due to the negligence of Defendants. The Defendants have known the 10 identity of the Cross-Defendant since the date of the incident yet waited until March 1, 2016, to 11 file_a_cross-complaint, While Defense counsel was extended the professional courtesy of 12 ultiple extensions to provide responses to written discovery, no responses have ever been provided nor has there been any indication that they will be provided. Although Defense 13 14 counsel represented that responses would be provided during the week of February 29, 2016, 15 that time has come and gone with no responses being provided and no further communication 16 by defense counsel. (Oren Decl. (417, 18) 17 Plaintiff is now seeking the court’s assistance with this matter as Plaintiff is in poor 18 health and discovery and deposition testimony is needed to prepare for the June 20, 2016 trial 19 date in this matter. Til. 20 LEGAL ARGUMENT 21 A. PLAINTIFF IS ENTITLED TO AN ORDER COMPELLLING DEFENDANT 22 JOHN GRADY TO PROVIDE RESPONSES WITHOUT OBJECTIONS TO PLAINTIFF’S DISCOVERY REQUESTS 23 1. Form Interrogatories, Set One and Special Interrogatories, Set One. 24 California Code of Civil Procedure section 2030.260 provides, “Within 30 days after 25 service of interrogatories, the party to whom the interrogatories are propounded shall serve the 26 original response to them on the propounding party....” The original of the responses to 27 6 NOTICE OF MOTION AND MOTION TO COMPEL INITIAL RESPONSES TO DISCOVERY FROM DEFENDANT JOHN GRADY WITH REQUEST FOR SANCTIONS; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION; DECLARATION OF ERIC P. OREN IN SUPPORT OF MOTION; [PROPOSED] ORDER interrogatories, with verification under penalty of perjury, is due within 30 days of the date the interrogatories are served. (CCP §§2030.250 — 2030.260) The time period to respond to discovery served by U.S. Mail is extended five calendar days. (CCP §§1013, 2016.050) Code of Civil Procedure section 2030.270 provides, “The party propounding interrogatories and the responding party may agree to extend the time for service of a response to a set of interrogatories ... to a date beyond that provided in Section 2030.260....” California Code of Civil Procedure section 2030.290 provides, “If a party to whom interrogatories are directed fails to serve a timely response, ... (a) The party to whom the interrogatories are directed waives any right to exercise the option to produce writings under 10 Section 2030.230, as well as any objection to the interrogatories, including one based on li privilege or on the protection for work product under Chapter 4 (commencing with Section 12 2018.010) ... (b) The party propounding the interrogatories may move for an order compelling 13 response to the interrogatories. 14 Here, Defendant JOHN GRADY has failed to provide verified responses, at all, let 15 alone timely responses to Plaintiffs Form Interrogatories, Set One and Special Interrogatories, 16 Set One despite the multiple extensions defense counsel requested and Plaintiff's counsel 17 agreed to out of professional courtesy. Plaintiff propounded Form Interrogatories, Set One and 18 Special Interrogatories, Set One on Defendant JOHN GRADY by U.S. Mail on January 14, 19 2016. JOHN GRADY was initially required to respond by February 18, 2016; however, after 20 several extensions to respond to the discovery were agreed to by Plaintiff's counsel, Defendant 21 JOHN GRADY was required to provide responses via e-mail on February 25, 2016. As of the 22 date of the filing of this motion, no responses have been received even after defense counsel 23 indicated that responses without objections would be provided the week of February 29, 2016. 24 Further, because JOHN GRADY has failed to provide timely verified responses, JOHN 25 26 GRADY has waived any objection to the interrogatories, including objections based on privilege or on the protection for work product. Therefore, JOHN GRADY should be 27 Offices of 7 05 NOTICE OF MOTION AND MOTION TO COMPEL INITIAL RESPONSES TO DISCOVERY FROM DEFENDANT JOHN GRADY WITH REQUEST FOR SANCTIONS; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION; DECLARATION OF ERIC P, OREN IN SUPPORT OF MOTION; [PROPOSED] ORDER compelled to respond without objections to Plaintiff's Form Interrogatories, Set One and Special Interrogatories, Set One. 2. Request for Production of Documents, Set One. Pursuant to California Code of Civil Procedure section 2031.260, a party to whom an inspection demand or request for production of documents has been served has an obligation to respond in writing under oath within 30 days of service of the demand. The response must state (1) that the party will comply with the particular demand, (2) that the party lacks the ability to comply with the particular demand, or (3) the objections to the particular demand. (CCP §§2031.210 — 201.240) The original of the response, with verification under penalty of 10 perjury, must be served no later than 30 days after service of the demand. The time period to 11 (CCP §§1013, respond to discovery served by U.S. Mail is extended five calendar days. 12 2016.050) Code of Civil Procedure section 2031.270 provides, the party demanding inspection, 13 copying, testing or sampling and the responding party may agree to extend the date for 14 ...service of a response to a date ... beyond those provided in Sections 2031.030, 2031.210, 15 2031.260 and 2031.280.” 16 California Code of Civil Procedure section 2031.300 provides, “If a party to whom a 17 demand for inspection ... fails to serve a timely response ... the party to whom the demand for 18 inspection is directed waives any objection to the demand, including one based on privilege or 19 on the protection for work under... (b) the party making the demand may move for an order 20 response to the demand. 21 Here, again, Defendant JOHN GRADY has refused to respond to Plaintiff's Request 22 for Production of Documents, Set One. Plaintiff propounded her first set of production 23 requests on JOHN GRADY by U.S. mail on January 14, 2016. JOHN GRADY was initially 24 required to respond by February 18, 2016; however, after several extensions to respond to the 25 26 discovery were agreed to by Plaintiff's counsel, Defendant JOHN GRADY was required to provide responses via e-mail on February 25, 2016. As of the date of the filing of this motion, 27 8 (OTICE OF MOTION AND MOTION TO COMPEL INITIAL RESPONSES TO DISCOVERY FROM DEFENDANT JOHN GRADY WITH REQUEST FOR SANCTIONS; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION; DECLARATION OF ERIC P. OREN IN SUPPORT OF MOTION; [PROPOSED] ORDER no responses have been received even after defense counsel represented that responses without objections would be provided the week of February 29, 2016. Further, because JOHN GRADY has failed to provide timely verified responses (including production of documents), JOHN GRADY has waived any objections to Plaintiff's requests for production of documents, including objections based on privilege or on the protection for work product. Therefore, JOHN GRADY should be compelled to respond without objections and produce documents responsive to Plaintiff's Request for Production of Documents, Set One. 3. Requests For Admissions, Set One. California Code of Civil Procedure section 2033.210 provides, “The party to whom 10 requests for admissions have been directed shall respond in writing under oath separately to 11 each request ... (b) each response shall answer the substance of the requested admissions, or 12 The original of the responses to admissions, set forth an objection to the particular request. 13 with verification under penalty of perjury, is due within 30 days of the date the admissions are 14 served. (CCP §§2033.240, 2033.250) The time period to respond to discovery served by U.S. 15 Mail is extended five calendar days. (CCP §§1013, 2016.050) 16 California Code of Civil Procedure section 2033.280 provides, “If a party to whom 17 requests for admissions are directed fails to serve a timely response ... (a) the party to whom 18 the requests for admission are directed waives any objection to the requests, including one 19 based on privilege or on the protection for work product ... (b) the requesting party may move 20 for an order that the genuineness of any documents and the truth of any matters specified in the 21 request be deemed admitted ....” 22 Here, Defendant JOHN GRADY has failed to provide a verified response to Plaintiff's 23 Request for Admissions, Set One. Plaintiff propounded her first set of admissions on GRADY 24 by U.S. mail on February 14, 2016. Defendant was obligated to provide a response by 25 26 February 18, 2016; however, after several extensions to respond to the discovery were agreed 27 to by Plaintiff's counsel out of professional courtesy, Defendant JOHN GRADY was required 9 NOTICE OF MOTION AND MOTION TO COMPEL INITIAL RESPONSES TO DISCOVERY FROM DEFENDANT JOHN GRADY WITH REQUEST FOR SANCTIONS; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION; DECLARATION OF ERIC P. OREN IN SUPPORT OF MOTION; [PROPOSED] ORDER to provide responses via e-mail on February 25, 2016. To date, Plaintiff has yet to receive a verified response from JOHN GRADY to Plaintiff's Request for Admissions, Set One even after defense counsel indicated that responses without objections would be provided the week of February 29, 2016. As such, the Court must make an order establishing the truth of each matter specified since JOHN GRADY has not served a timely, verified response. Therefore, the court should deem each request for admission as “admitted”, B. PLAINTIFF IS ENTITLED TO AN AWARD OF SANCTIONS The court “shall” impose a monetary sanction against whichever party loses on the motion to compel compliance ... unless it finds that party made or opposed the motion “with 10 substantial justification” or other circumstances make sanctions “unjust.” (CCP §§ 11 Civil Code of Civil Procedure Section 2023.030 directs this 2023.030(a)), 2030.300(d)). 12 Court, in its discretion, to order a sanction “against anyone engaging in conduct that is a 13 misuse of the discovery process.” ‘[This] court may impose a monetary sanction ordering 14 that one engaging in the misuse of the discovery process, or any attorney advising that conduct, 15 or both pay the reasonable expenses, including attorney’s fees, incurred by anyone asa result 16 of that conduct.” (CCP §2023.030(a).) Code of Civil Procedure Section 2023.010, in pertinent 17 part, provides that “Misuses of the discovery process include, but are not limited to the 18 following ... (d) failing to respond or submit to and authorized method of discovery ... 19 opposing, unsuccessfully and without substantial justification, a motion to compel or to 20 limit discovery [and] ... (i) failing to confer...with an opposing party or attorney in a 21 reasonable and good faith attempt to resolve informally any dispute concerning 22 discovery...” 23 Here, Defendant has engaged in the misuse of the discovery process by failing to 24 respond entirely to Plaintiff's discovery requests although multiple extensions for additional 25 time to respond were granted to Defendant by Plaintiff's counsel out of professional courtesy. 26 27 No explanation was provided by Defendant for his continued failure and refusal to respond to Gl RIC mt 10 rR Fresno,© ria 98708 NOTICE OF MOTION AND MOTION TO COMPEL INITIAL RESPONSES TO DISCOVERY FROM DEFENDANT JOHN GRADY WITH REQUEST FOR SANCTIONS; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION; DECLARATION OF ERIC P. OREN IN SUPPORT 1F MOTION; [PROPOSED] ORDER Plaintiff's discovery requests, Defendant has strung Plaintiff along with his promises that responses would be forthcoming and most recently defense counsel indicated responses without objections would be provided the week of February 29, 2016; however, no responses have been provided although Defendant has been fully aware of Plaintiff's intention to expeditiously litigate this matter based on Plaintiff's health and age. Defendant and his counsel’s actions amount to an intentional delay of discovery and the litigation of this matter. Defendant’s actions clearly amount to an abuse of the discovery system and any opposition to this motion by Defendant will be made without any substantial justification. Therefore, Plaintiff is entitled to an award of sanctions for the reasonable costs, 10 including attorneys’ fees, associated with bringing this motion in the amount of $1,350.00 11 against Defendant JOHN GRADY and defense counsel Brian Leach, jointly and severally. 12 (Oren Decl. at $17) IV. 13 14 CONCLUSION 15 For the foregoing reasons, Plaintiff hereby respectfully request that this Court grant the 16 present motion against Defendant JOHN GRADY and: (1) Order JOHN GRADY to provide 17 verified responses to form interrogatories, Set. No. 1; (2) order Defendant JOHN GRADY 18 provide verified responses to Special Interrogatories, Set One; (3) order Defendant JOHN 19 GRADY to provide verified responses to Plaintiff's Request for Productions of Documents, Set 20 No. 1; (4) make an order establishing the truth of each matter specified in Plaintiffs Request 21 for Admissions, Set One by deeming each request for admission as “admitted” or, in the 22 alternative ordering that Defendant JOHN GRADY provide verified responses; and (5) order 23 M1 24 M1 25 //1 26 1 27 //1 11 1c 05 OTICE OF MOTION AND MOTION TO COMPEL INITIAL RESPONSES TO DISCOVERY FROM DEFENDANT JOHN GRADY WITH REQUEST FOR SANCTIONS; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION; DECLARATION OF ERIC P. OREN IN SUPPORT OF MOTION; [PROPOSED] ORDER 1 sanctions in the amount of $1,410 against Defendant JOHN GRADY and defense counsel, 2 jointly and severally. p g— 3 DATED: March 11, 2016 Law Offices of Eric P. Or ee — } 4 By: 5 Eh Eriic P, ren, Attorne: y Plaintiff, JANE HANS: N, , by and through her 6 Guardian ad Litem, JUDITH LYNN RUSH 7 TO F:\epo\HANSEN, Jane 01015\PLEADING\MOTIONS\MOTION TO COMPEL (GRADY)\MTN TO COMPEL RESPONSES 8 DISCOVERY (GRADY).doc 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 caw 12 ER Frasna, Cablornia 04 NOTICE OF MOTION AND MOTION TO COMPEL INITIAL RESPONSES TO DISCOVERY FROM DEFENDANT JOHN GRADY WITH REQUEST FOR SANCTIONS; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION; DECLARATION OF ERIC P. OREN IN SUPPORT OF MOTION; [PROPOSED] ORDER DECLARATION OF ERIC P. OREN IN SUPPORT OF PLANTIFF’S MOTION TO COMPEL INITIAL RESPONSES TO DISCOVERY FROM DEFENDANT JOHN GRADY WITH REQUEST FOR SANCTIONS I, ERIC P. OREN, declare: 1 I am an attorney duly admitted to practice law before all Courts of the State of California, and I am counsel of record for Plaintiff JANE HANSEN in this action. 2 I have personal knowledge of the following matters, except as to those stated upon information and belief, and as to those matter I believe true, and if called as a witness in this action, after being duly sworn, I could and would competently testify thereto. 3 Plaintiff in this action, Jane Hansen, is 89 years old and in poor health and 10 wheelchair bound. A declaration regarding the health of Plaintiff was prepared by Plaintiff's 11 daughter/GAL, Judi Rush, and was submitted to the Court in support of Plaintiff's application 12 for Trial Setting Preference in this case (which was granted), At the time of the incident giving 13 rise to this case (7/29/15), Plaintiff lived in a residential care facility operated by Kristie 14 McIntosh where plaintiff receives assistance with all of her daily needs. Plaintiff still resides at 15 this same facility. 16 4. This action is based upon the negligence and violation of safety statutes by 17 defendant, JOHN GRADY and his employer, Comfort Med Trans., Inc. for failing to fasten 18 plaintiff in her wheelchair during the course of placing her in defendants’ wheelchair van to 19 transport her (for a fee) from a medical appointment to her residential care facility. As result of 20 the negligence of defendants (a Common Carrier), plaintiff was thrown out of her wheelchair 21 suffering severe injuries. Defendants were required to fasten Plaintiff into her wheelchair to 22 prevent her from becoming dislodged from her wheelchair during placement in the van--- 23 which was also required pursuant to California Public Utilities Code 211 and California Civil 24 Code 2168, and also subject to the requirements of 22 CCR 51231.2 relating to wheelchair van 25 requirements which requires that "all wheelchair passengers must be secured to wheelchairs 26 while being loaded, unloaded or transported." 27 5 Plaintiff filed her complaint in this action on 11/17/15. 25 13 05 NOTICE OF MOTION AND MOTION TO COMPEL INITIAL RESPONSES TO DISCOVERY FROM DEFENDANT JOHN GRADY WITH REQUEST FOR SANCTIONS; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION; DECLARATION OF ERIC P, OREN IN SUPPORT OF MOTION; [PROPOSED] ORDER 6 I sent an email to defense counsel on 12/29/15 notifying him that I would be requesting a preferential trial setting of this case due to the health and advanced age of plaintiff. 7 On 12/30/15 I served the defense with plaintiffs motion for trial setting preference. It was served again on 2/1/16 via overnight mail. 8 Defendants filed their answer to plaintiff's complaint on 1/13/16. 9 Plaintiff propounded written discovery (request for admissions, Set One, special interrogatories, Set One, request for production of documents, Set One, and form interrogatories, Set One) upon JOHN GRADY on 1/14/16 and responses were due on 2/18/16. 10 True and correct copies of Plaintiff's Form Interrogatories, Set One, Special Interrogatories, 11 Set One, Request for Production of Documents, Set One and Request for Admissions, Set One 12 to Defendant JOHN GRADY are attached hereto and incorporated herein by this reference as Exhibits “A”, “B”, “C”, and “D”. 13 14 10. On 1/14/16, Plaintiff also served a Notice of Taking Deposition with Request 15 for Production of Documents on Defendant JOHN GRADY for his deposition on March 2, 16 2016. On 2/10/16, Plaintiff served an Amended Notice of Taking Deposition with Request for 17 Production of Documents on Defendant JOHN GRADY for his deposition on March 1, 2016. 18 No written objections by Defendant was received regarding the date, time, location or 19 documents requested in the amended deposition notice of JOHN GRADY. 11. Plaintiff propounded written discovery (request for admissions, special 20 21 interrogatories, request for production of documents, and form interrogatories) upon Comfort 22 Med Trans., Inc. on 1/4/16 and responses were due on 2/8/16. 23 12. Defense counsel requested an extension to respond to the discovery propounded 24 upon Comfort Med Trans., Inc. so that responses would be due on the same date (2/18/16) as 25 the discovery pounded upon JOHN GRADY. Out of professional courtesy, I agreed to this 26 request for an extension of time. 27 14 22 NOTICE OF MOTION AND MOTION TO COMPEL INITIAL RESPONSES TO DISCOVERY FROM DEFENDANT JOHN GRADY WITH REQUEST FOR SANCTIONS; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION; DECLARATION OF ERIC P. OREN IN SUPPORT OF MOTION; [PROPOSED] ORDER 13. On 2/18/16 defense counsel’s office contacted me and requested a one-week extension through 2/25/16 to respond to the written discovery on behalf of Comfort Med Trans., Inc., and JOHN GRADY. I again extended the professional courtesy and agree to the extension provided that I received the verified responses via email on 2/25/16 I had the deposition of JOHN GRADY properly noticed and scheduled to take place on March 1, 2016. The defense agreed to this and sent me a confirming email regarding the 1-week extension. Defendants did not provide discovery responses as promised on February 25, 2016. 14. Defense counsel notified me on Friday afternoon, February 26, 2016 that the deposition of defendant, JOHN GRADY would not take place on March 1, 2016 because he 10 was going to attend a deposition in another case. I strongly objected to this late notice. This 11 dispute is the subject of a pre-trial discovery conference which has been requested with Judge 12 Hamilton pursuant to Fresno local rules wherein Plaintiff has requested that the court order that 13 JOHN GRADY appear for his deposition on a date set by the court. 14 15. Defense counsel, Brian Leach sent me an email on 2/27/16 stating that his 15 clients were going to provide alternate dates for the deposition of JOHN GRADY on Monday 16 (February 29, 2016) and would be providing responses to the written discovery (without 17 objections) during the week of February 29, 2016. Defense counsel has neither provided any 18 discovery responses promised as of the date of this declaration nor has he provided any 19 alternate dates for the deposition of JOHN GRADY. 20 16. Plaintiff's motion for trial setting preference was tentatively granted by tentative 21 ruling issued on February 29, 2016 (hearing date of March 1, 2016). Defendant’s opposition 22 was not timely filed and not considered by the Court. The defense did not request any hearing 23 and the tentative ruling was adopted as of 3/1/16. On 3/1/16 Defense counsel, Brian Leach 24 agreed to a trial date of 6/20/16. The Court has now set this case for trial on June 20, 2016. 25 17. Defense counsel has given no explanation for his continued failure and refusal 26 to provide responses to written discovery in this action. The conduct of the Defense appears to 27 be an intentional delay of this action by not producing JOHN GRADY for his deposition, not 15 NOTICE OF MOTION AND MOTION TO COMPEL INITIAL RESPONSES TO DISCOVERY FROM DEFENDANT JOHN GRADY WITH REQUEST FOR SANCTIONS; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION; DECLARATION OF ERIC P. OREN IN SUPPORT OF MOTION; [PROPOSED] ORDER providing written discovery responses, and filing a generic third-party cross-complaint for indemnity against the operator of the residential facility where Plaintiff was picked up by Defendant, JOHN GRADY on the date of the incident (7/29/15) wherein she suffered significant injuries due to the negligence of Defendants. The Defendants have known the identity of the Cross-Defendant since the date of the incident yet waited until March 1, 2016, to file_a_cross-complaint. While Defense counsel was extended the professional courtesy of multiple extensions to provide responses to written discovery, no responses have ever been provided nor has there been any indication that they will be provided. Although Defense counsel represented that responses would be provided during the week of February 29, 2016, 10 that time has come and gone with no responses being provided and no further communication 11 by defense counsel. In light of the Defense’s demonstrated desire to delay this case, 12 particularly in light of the fact that the defense has known since the end of last year that this 13 was a case involving an elderly woman with poor health which justified a trial setting 14 preference, it is requested that the court order that Defendants’ respond to the written discovery 15 forthwith and award sanctions against Defense counsel in the amount of $1,350, I have spent 16 4.5 hours in preparation of this motion. My hourly rate for this type of litigation is $300 per 17 hour. Therefore, I request that the Court award attorney’s fees in the amount of $1,350 in 18 addition to costs of $60.00 for the filing fee of this motion at a total of $1,410. 19 18. A true and correct copy of my email exchanges with Defense counsel are 20 attached hereto as Exhibit “E”. 21 I declare under penalty of perjury under the laws of the State of California that 22 the foregoing is true and correct and that this declaration was executed on this fl 74 day of 23 1 p March 2016, at Fresno, California. 24 25 ERIC P. OREN 26 27 tee 16 ER NOTICE OF MOTION AND MOTION TO COMPEL INITIAL RESPONSES TO DISCOVERY FROM DEFENDANT JOHN GRADY WITH REQUEST FOR SANCTIONS; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION; DECLARATION OF ERIC P. OREN IN SUPPORT OF MOTION; [PROPOSED] ORDER EXHIBIT A EricP. Oren, #106129 Law Offices of Eric P. Oren 225 West Shaw Avenue, Suite 105 Fresno, California 93704 Telephone: (559) 224-5900 Facsimile: (559) 224-5905 Attorneys for Plaintiff, JANE HANSEN, by and through her Guardian ad Litem, JUDITH LYNN RUSH SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF FRESNO 10 Case No.: 15CECG03526 JANE HANSEN, by and through her ll Guardian ad Litem, JUDITH LYNN RUSH PLAINTIFF’S FORM INTERROGAT