Preview
RICHARD M. KELLY, ESQ. (SBN: 154504)
MICHAEL MENGARELLI, ESQ. (SBN: 2 1 5000)
KELLY LITIGATION GROUP, INC.
3 Lagoon Drive, Suite 225
Redwood
Telephone:
City, CA 94065
(650) 591-2282
FILED
SAN MATEO‘COUNTY
Facsimile: (650) 591-2292
APRIL S. GLATT‘, ESQ. (SBN: 185708)
THOMAS J. WALSH, ESQ. (SBN: 31 1862)
CHAUVEL & GLATT, LLP
66 Bovet Road, Suite 280
San Mateo, CA 94402
Telephone: (650) 573—9500
H Facsimile: (650) 573-9689
Attorneys for Plaintiffs and Cross—Defendants,
MATTHEW SQUIRES and NICOLE SQUIRES
IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE COUNTY OF SAN MATEO (IllilHIllllllll!lllllllllllmllIll
(UNLIMITED CIVIL JURISDICTION) 00846
MATTHEW SQUIRES, et aL,
l
—
Case No.: 18CIV00846. CIV EGT
Obieption
1669350
8—
Plaintiffs, (1 Ii‘
OBJ
l
vs.
AMENDED
PLAINTIFFS AND CROSS-DEFENDANTS
R.C. WEHMEYER CONSTRUCTION, INC”, dba OBJECTIONS TO DECLARATION OF
WEHMEYER CUSTOM HOMES; et a1., BRIAN W. NEWCOMB IN OPPOSITION T0
PLAINTIFFS AND CROSS-DEFENDANTS
Defendants,
HexaooqaxunAmNh-tcxoooqcxmAmwic
MATTHEW AND NICOLE SQUIRES
WWNNNNNNNNNNHHHHHHHH
MOTION FOR TERMINATING
SANCTIONS, ETC.
x
R.C. WEHMEYER CONSTRUCTION, INC., dba
WEHMEYER CUSTOM HOMES; ROBERT C. Action Filed: February 20, 2018
WEHMEYER, JEFFREY BORDIN AND
GREGORIO MARTINEZ,
Date: March 4, 2019
Time: 9:00 am.
Cross-Complainants,
Dept: Law and Motion aiid
vs.
MATTHEW SQUIRES; NICOLE SQUIRES, and £8
ROES 1 through 10,
x95
Cross—Defendants.
1
AMENDED PLAINTIFFS AND CROSS-DEFENDANTS’ OBJECTIONS TO DECLARATION OF BRIAN W.
NEWCOMB IN OPPOSITION TO PLAINTIFFS AND CROSS-DEFENDANTS MATTHEW AND NICOLE SQUIRES
MOTION FOR TERMINATING SANCTIONS, ETC.
Plaintiffs and Cross-Defendants, Matthew and Nicole Squires, (“Squires”), make the following
objections to the Declaration of Brian W. Newcomb (“Declarant”). Plaintiffs respectfully request the
Court to rule on the following objections prior to ruling in this matter.
Objections to Declaration of Brian W. Newcomb
WOOQGNUl-BUJNH General Objection
This declaration should be stricken in its entirety on the grounds 0f mediation privilege (Cal. Evid.
Code §1 1 19(0)), hearsay (Cal. Evid. Code§ 1200), speculation (Cal. Evid. Code § 702), and lack of
H
personal knowledge (Cal. Evid. Code §
Court’s Ruling on this Objection: Sustained:
ngrruled:
_
702) ana Inadmissible Opinion (Cal. Evid.
_
Code § 800).
Objection Number 1
Declarant’s Paragraph 13 in its entirety, which begins with: “Similarly, on January 10, 2019. .. spent
the day at ADR Services in Mediation. ..” and ends with: “At no time during the course of the
Mediation did Ms. Glatt or Mr. Mengarelli, personally or thorough [sic] the Mediator, ever make a
comment about any outstanding discovery due and owing to them.” (Newcomb declaration, page 5,
lines 7—13.)
Grounds for Objection 1: Mediation Privilege (Cal. Evid. Code §1 119). Hearsay (Cal. Evid. Code§
1200). Declarant ’s statement, and his testzfiing 0n behalfoerS. Glatt and Mr. Mengarelli, violates
the Mediation Privilege by describing alleged communications between the parties during mediation
in this publicly filed document. “All communications, negotiations, or settlement discussions by and
HQbODQQUIAWND—Iawmxlamhmlvnc
between participants in the course of a mediation
meNNNNNNNNNr—IHHHHHHH
...shall remain confidential.” (Cal. Evid. Code
§1 1 19(0).
Court’s Ruling on this Objection: Sustained: ___
Overruled:
Objection Number 2
Declarant’s Paragraph 4 in its entirety, which begins and ends: “The undersigned has no
recollection. requesting a further response to Cross-Defendant Nicole Squires April
. .
10, 2018,
Special Interrogatories, Set One from July 24, 2018 up to and including January 24, 2019.” (Newcomb
Declaration, page 2, lines 19-24).
2
AMENDED PLAINTIFFS AND CROSS-DEFENDANTS’ OBJECTIONS TO DECLARATION OF BRIAN W.
NEWCOMB IN OPPOSITION TO PLAINTIFFS AND CROSS-DEFENDANTS MATTHEW AND NICOLE SQUIRES
MOTION FOR TERMINATING SANCTIONS, ETC.
Grounds for Objection 2: Speculation (Cal. Evid. Code § 702); Lacks Personal Knowledge (Cal.
Evid. Code § 702.) Declarant admittedly states that he has no recollection, and therefore no personal
knowledge, as to whether Declarant engaged in communications with Plaintiff’s counsel during the
subject period time.
\OMQGNUI-BUJNH
As such, he is
Court’s Ruling on this Objection: Sustained:
Ovenuled:
_
merely speculating that such communications did not occur.
_
Objection Number 3
Declarant’s Paragraph 5 beginning with “and received no communication. .
.” and ending with “which
is the subject to this opposition.” (Newcomb Declaration, pages 2-3, lines 28—3).
l-i
Grounds for Objection 3: Speculation (Cal. Evid. Code § 702); Lacks Personal Knowledge (Cal.
Evid. Code § 702.) Pursuant to Paragraph 4 of the Declarant’s statement, Declarant admits he has no
recollection of whether he received communication from Plaintiff s counsel during the subject time
period. As such, again, in Para. 5, he is
Court’s Ruling on this Objection: Sustained:
Overruled:
_
merely speculating that such communications did not occur.
___
Objection Number 4
Declarant’s Paragraph 5 beginning with: “It is surely possible” and ending with “If so, it was
inadvertent.” (Newcomb declaration, page 3, lines 6-7).
Grounds for Objection 4: Speculation (Cal. Evid. Code § 702); Lacks Personal Knowledge (Cal.
Evid. Code § 702). Per Paragraph 5 of Declarant’s Declaration, Declarant isspeculating that the
HO©®Q¢NUIAMNHOWWQGUIAMN=O
discovery responses at issue were not responded to because “all counsel” may have “overlooked it.”
I
MMNNNNNNNNNNHHHHHHHH
Court’s Ruling on this Objection: Sustained: __
Overruled: ____
Objection Number 5
Declarant’s Paragraph 7 beginning: “The undersigned submits the time claimed is erroneous, the 4
questions in issue were simple.” (Newcomb declaration, page 3, lines 26-27).
Grounds for Objection 5: Speculation (Cal. Evid. Code § 702); Lacks Personal Knowledge (Cal.
Evid. Code § 702) Inadmissible Opinion (Cal. Evid. Code § 800). Declarant has no personal
knowledge of and isspeculating that the amount of time spent by Plaintiff’s counsel related to the
itemized billing at issue is“erroneous” and “issues were simple”. This is inadmissible opinion.
3
AMENDED PLAINTIFFS AND CROSS—DEFENDANTS’ OBJECTIONS TO DECLARATION OF BRIAN W.
NEWCOMB IN OPPOSITION TO PLAINTIFFS AND CROSS-DEFENDANTS MATTHEW AND NICOLE SQUIRES
MOTION FOR TERMINATING SANCTIONS, ETC.
Court’s Ruling on this Obj ection:
Objection Number 6
Sustained:
Overruled: _
___
Declarant’s Paragraph 8 in its entirety” (Newcomb declaration, page 43—, lines 28-8).
Grounds for Objection 6 Speculation
\OWQQUIAUJNH
(Cal. Evid. Code § 702); Lacks Personal Knowledge (Cal.
Evid. Code § 702); Inadmissible Opinion (Cal. Evid. Code §800) Paragraph 4 Mr. Newcomb declares”
he has no recollection whatsoever. ...or any other communication. ..”, and Paragraph 8 of Declarant’s
Declaration, directly conflict. On one hand Declarant admits he lacks personal knowledge then on the
other, he is certain he had no communication. Later in paragraph 8 he then states “At this latedateI
d0 not even recall if the 4 responses are outstanding. Just in case. .” (Newcomb Declaration, pg. 4,
H .
lines 5-8. Mr. Newcomb’s statements are pure speculation, lack personal knowledge about whether his
client responded to the discovery responses at issue and given itdoes not appear to be rationally based,
it should be stricken as inadmissible opinion per Cal. Evid. Code §800.
Court’s Ruling on this Objection: Sustained: ___
Overruled: __
Objection Number 7
Declarant’s Paragraph 9 in its entirety, which begins with: “Ms. Glatt has attached to her motion the
hearsay statements regarding entries for work. .
.”and ends with: “Please note that there isno signed
Declaration by Mr. Walsh that any of these entries in the bills are accurate and accordingly should be
stricken.” (Newcomb declaration, page 4, lines 9-12).
Hcoooqaxmawww—‘cxoooqaxmamnic
Grounds for Objection 7 Speculation (Cal Evid. Code § 702); Lacks Personal Knowledge (Cal. Evid.
WWNNNNNNNNNNHHHHHHHH
Code § 702); Inadmissible Opinion (Cal. Evid. Code § 800). Declarant speculates without personal
knowledge about whether there isany inaccuracy in the billing entries at issue. Declarant also
presumes Ms. Glatt has no personal knowledge to these facts.
Court’s Ruling on this Objection:
Objection Number 8
Sustained:
Ovenuled: _
___
Declarant’s Paragraph 11 in its entirety, which begins with: “Even more telling is the confirmation of
no communication. .. to which she had no interest whatsoever in receiving a response for six (6)
4
AMENDED PLAINTIFFS AND CROSS-DEFENDANTS’ OBJECTIONS T0 DECLARATION OF BRIAN W.
NEWCOMB IN OPPOSITION T0 PLAINTIFFS AND CRoss-DEFENDANTS MATTHEW AND NICOLE SQUIRES
MOTION FOR TERMINATING SANCTIONS, ETC.
months. .
.” and ending with: “no effort whatsoever to meet or confer or even a phone call... about
alleged missing responses.” (Newcomb declaration, page 4, lines 18-27.)
Grounds for Objection 8: Speculation (Cal. Evid. Code §702); Lacks Personal Knowledge (Cal.
Evid. Code § 702) Inadmissible Opinion (Cal. Evid. Code § 800). Per Paragraph 4 of Declarant’s
Declaration, Declaxant states he has no recollection regarding whether Declarant and Plaintiff s
\OWQQUIAMNH
Counsel met and conferred about the subj ect discovery responses. As such, Declarant is speculating
that such communications did not occur.
Court’s Ruling on this Objection: Sustained: __
Overruled:
H
Dated: February 25, 201 9 CHAUVEL & GLATT, LLP
/{)/-
April S. Glatt, Esh/V
Attorneys for Plainti andE ross-Defendants,
MATTHEW SQUIRE NICOLE SQUIRES
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mMNNNNNNNNNxop—y—HHHHHH
5
AMENDED PLAINTIFFS AND CROSS-DEFENDANTS’ OBJECTIONS TO DECLARATION OF BRIAN W.
NEWCOMB IN OPPOSITION TO PLAINTIFFS AND CROSS—DEFENDANTS MATTHEW AND NICOLE SQUIRES
MOTION FOR TERMINATING SANCTIONS, ETC.
Preview
RICHARD M. KELLY, ESQ. (SBN: 154504) MICHAEL MENGARELLI, ESQ. (SBN: 2 1 5000) KELLY LITIGATION GROUP, INC. 3 Lagoon Drive, Suite 225 Redwood Telephone: City, CA 94065 (650) 591-2282 FILED SAN MATEO‘COUNTY Facsimile: (650) 591-2292 APRIL S. GLATT‘, ESQ. (SBN: 185708) THOMAS J. WALSH, ESQ. (SBN: 31 1862) CHAUVEL & GLATT, LLP 66 Bovet Road, Suite 280 San Mateo, CA 94402 Telephone: (650) 573—9500 H Facsimile: (650) 573-9689 Attorneys for Plaintiffs and Cross—Defendants, MATTHEW SQUIRES and NICOLE SQUIRES IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF SAN MATEO (IllilHIllllllll!lllllllllllmllIll (UNLIMITED CIVIL JURISDICTION) 00846 MATTHEW SQUIRES, et aL, l — Case No.: 18CIV00846. CIV EGT Obieption 1669350 8— Plaintiffs, (1 Ii‘ OBJ l vs. AMENDED PLAINTIFFS AND CROSS-DEFENDANTS R.C. WEHMEYER CONSTRUCTION, INC”, dba OBJECTIONS TO DECLARATION OF WEHMEYER CUSTOM HOMES; et a1., BRIAN W. NEWCOMB IN OPPOSITION T0 PLAINTIFFS AND CROSS-DEFENDANTS Defendants, HexaooqaxunAmNh-tcxoooqcxmAmwic MATTHEW AND NICOLE SQUIRES WWNNNNNNNNNNHHHHHHHH MOTION FOR TERMINATING SANCTIONS, ETC. x R.C. WEHMEYER CONSTRUCTION, INC., dba WEHMEYER CUSTOM HOMES; ROBERT C. Action Filed: February 20, 2018 WEHMEYER, JEFFREY BORDIN AND GREGORIO MARTINEZ, Date: March 4, 2019 Time: 9:00 am. Cross-Complainants, Dept: Law and Motion aiid vs. MATTHEW SQUIRES; NICOLE SQUIRES, and £8 ROES 1 through 10, x95 Cross—Defendants. 1 AMENDED PLAINTIFFS AND CROSS-DEFENDANTS’ OBJECTIONS TO DECLARATION OF BRIAN W. NEWCOMB IN OPPOSITION TO PLAINTIFFS AND CROSS-DEFENDANTS MATTHEW AND NICOLE SQUIRES MOTION FOR TERMINATING SANCTIONS, ETC. Plaintiffs and Cross-Defendants, Matthew and Nicole Squires, (“Squires”), make the following objections to the Declaration of Brian W. Newcomb (“Declarant”). Plaintiffs respectfully request the Court to rule on the following objections prior to ruling in this matter. Objections to Declaration of Brian W. Newcomb WOOQGNUl-BUJNH General Objection This declaration should be stricken in its entirety on the grounds 0f mediation privilege (Cal. Evid. Code §1 1 19(0)), hearsay (Cal. Evid. Code§ 1200), speculation (Cal. Evid. Code § 702), and lack of H personal knowledge (Cal. Evid. Code § Court’s Ruling on this Objection: Sustained: ngrruled: _ 702) ana Inadmissible Opinion (Cal. Evid. _ Code § 800). Objection Number 1 Declarant’s Paragraph 13 in its entirety, which begins with: “Similarly, on January 10, 2019. .. spent the day at ADR Services in Mediation. ..” and ends with: “At no time during the course of the Mediation did Ms. Glatt or Mr. Mengarelli, personally or thorough [sic] the Mediator, ever make a comment about any outstanding discovery due and owing to them.” (Newcomb declaration, page 5, lines 7—13.) Grounds for Objection 1: Mediation Privilege (Cal. Evid. Code §1 119). Hearsay (Cal. Evid. Code§ 1200). Declarant ’s statement, and his testzfiing 0n behalfoerS. Glatt and Mr. Mengarelli, violates the Mediation Privilege by describing alleged communications between the parties during mediation in this publicly filed document. “All communications, negotiations, or settlement discussions by and HQbODQQUIAWND—Iawmxlamhmlvnc between participants in the course of a mediation meNNNNNNNNNr—IHHHHHHH ...shall remain confidential.” (Cal. Evid. Code §1 1 19(0). Court’s Ruling on this Objection: Sustained: ___ Overruled: Objection Number 2 Declarant’s Paragraph 4 in its entirety, which begins and ends: “The undersigned has no recollection. requesting a further response to Cross-Defendant Nicole Squires April . . 10, 2018, Special Interrogatories, Set One from July 24, 2018 up to and including January 24, 2019.” (Newcomb Declaration, page 2, lines 19-24). 2 AMENDED PLAINTIFFS AND CROSS-DEFENDANTS’ OBJECTIONS TO DECLARATION OF BRIAN W. NEWCOMB IN OPPOSITION TO PLAINTIFFS AND CROSS-DEFENDANTS MATTHEW AND NICOLE SQUIRES MOTION FOR TERMINATING SANCTIONS, ETC. Grounds for Objection 2: Speculation (Cal. Evid. Code § 702); Lacks Personal Knowledge (Cal. Evid. Code § 702.) Declarant admittedly states that he has no recollection, and therefore no personal knowledge, as to whether Declarant engaged in communications with Plaintiff’s counsel during the subject period time. \OMQGNUI-BUJNH As such, he is Court’s Ruling on this Objection: Sustained: Ovenuled: _ merely speculating that such communications did not occur. _ Objection Number 3 Declarant’s Paragraph 5 beginning with “and received no communication. . .” and ending with “which is the subject to this opposition.” (Newcomb Declaration, pages 2-3, lines 28—3). l-i Grounds for Objection 3: Speculation (Cal. Evid. Code § 702); Lacks Personal Knowledge (Cal. Evid. Code § 702.) Pursuant to Paragraph 4 of the Declarant’s statement, Declarant admits he has no recollection of whether he received communication from Plaintiff s counsel during the subject time period. As such, again, in Para. 5, he is Court’s Ruling on this Objection: Sustained: Overruled: _ merely speculating that such communications did not occur. ___ Objection Number 4 Declarant’s Paragraph 5 beginning with: “It is surely possible” and ending with “If so, it was inadvertent.” (Newcomb declaration, page 3, lines 6-7). Grounds for Objection 4: Speculation (Cal. Evid. Code § 702); Lacks Personal Knowledge (Cal. Evid. Code § 702). Per Paragraph 5 of Declarant’s Declaration, Declarant isspeculating that the HO©®Q¢NUIAMNHOWWQGUIAMN=O discovery responses at issue were not responded to because “all counsel” may have “overlooked it.” I MMNNNNNNNNNNHHHHHHHH Court’s Ruling on this Objection: Sustained: __ Overruled: ____ Objection Number 5 Declarant’s Paragraph 7 beginning: “The undersigned submits the time claimed is erroneous, the 4 questions in issue were simple.” (Newcomb declaration, page 3, lines 26-27). Grounds for Objection 5: Speculation (Cal. Evid. Code § 702); Lacks Personal Knowledge (Cal. Evid. Code § 702) Inadmissible Opinion (Cal. Evid. Code § 800). Declarant has no personal knowledge of and isspeculating that the amount of time spent by Plaintiff’s counsel related to the itemized billing at issue is“erroneous” and “issues were simple”. This is inadmissible opinion. 3 AMENDED PLAINTIFFS AND CROSS—DEFENDANTS’ OBJECTIONS TO DECLARATION OF BRIAN W. NEWCOMB IN OPPOSITION TO PLAINTIFFS AND CROSS-DEFENDANTS MATTHEW AND NICOLE SQUIRES MOTION FOR TERMINATING SANCTIONS, ETC. Court’s Ruling on this Obj ection: Objection Number 6 Sustained: Overruled: _ ___ Declarant’s Paragraph 8 in its entirety” (Newcomb declaration, page 43—, lines 28-8). Grounds for Objection 6 Speculation \OWQQUIAUJNH (Cal. Evid. Code § 702); Lacks Personal Knowledge (Cal. Evid. Code § 702); Inadmissible Opinion (Cal. Evid. Code §800) Paragraph 4 Mr. Newcomb declares” he has no recollection whatsoever. ...or any other communication. ..”, and Paragraph 8 of Declarant’s Declaration, directly conflict. On one hand Declarant admits he lacks personal knowledge then on the other, he is certain he had no communication. Later in paragraph 8 he then states “At this latedateI d0 not even recall if the 4 responses are outstanding. Just in case. .” (Newcomb Declaration, pg. 4, H . lines 5-8. Mr. Newcomb’s statements are pure speculation, lack personal knowledge about whether his client responded to the discovery responses at issue and given itdoes not appear to be rationally based, it should be stricken as inadmissible opinion per Cal. Evid. Code §800. Court’s Ruling on this Objection: Sustained: ___ Overruled: __ Objection Number 7 Declarant’s Paragraph 9 in its entirety, which begins with: “Ms. Glatt has attached to her motion the hearsay statements regarding entries for work. . .”and ends with: “Please note that there isno signed Declaration by Mr. Walsh that any of these entries in the bills are accurate and accordingly should be stricken.” (Newcomb declaration, page 4, lines 9-12). Hcoooqaxmawww—‘cxoooqaxmamnic Grounds for Objection 7 Speculation (Cal Evid. Code § 702); Lacks Personal Knowledge (Cal. Evid. WWNNNNNNNNNNHHHHHHHH Code § 702); Inadmissible Opinion (Cal. Evid. Code § 800). Declarant speculates without personal knowledge about whether there isany inaccuracy in the billing entries at issue. Declarant also presumes Ms. Glatt has no personal knowledge to these facts. Court’s Ruling on this Objection: Objection Number 8 Sustained: Ovenuled: _ ___ Declarant’s Paragraph 11 in its entirety, which begins with: “Even more telling is the confirmation of no communication. .. to which she had no interest whatsoever in receiving a response for six (6) 4 AMENDED PLAINTIFFS AND CROSS-DEFENDANTS’ OBJECTIONS T0 DECLARATION OF BRIAN W. NEWCOMB IN OPPOSITION T0 PLAINTIFFS AND CRoss-DEFENDANTS MATTHEW AND NICOLE SQUIRES MOTION FOR TERMINATING SANCTIONS, ETC. months. . .” and ending with: “no effort whatsoever to meet or confer or even a phone call... about alleged missing responses.” (Newcomb declaration, page 4, lines 18-27.) Grounds for Objection 8: Speculation (Cal. Evid. Code §702); Lacks Personal Knowledge (Cal. Evid. Code § 702) Inadmissible Opinion (Cal. Evid. Code § 800). Per Paragraph 4 of Declarant’s Declaration, Declaxant states he has no recollection regarding whether Declarant and Plaintiff s \OWQQUIAMNH Counsel met and conferred about the subj ect discovery responses. As such, Declarant is speculating that such communications did not occur. Court’s Ruling on this Objection: Sustained: __ Overruled: H Dated: February 25, 201 9 CHAUVEL & GLATT, LLP /{)/- April S. Glatt, Esh/V Attorneys for Plainti andE ross-Defendants, MATTHEW SQUIRE NICOLE SQUIRES Howmqamhmwuowmqamawnfic mMNNNNNNNNNxop—y—HHHHHH 5 AMENDED PLAINTIFFS AND CROSS-DEFENDANTS’ OBJECTIONS TO DECLARATION OF BRIAN W. NEWCOMB IN OPPOSITION TO PLAINTIFFS AND CROSS—DEFENDANTS MATTHEW AND NICOLE SQUIRES MOTION FOR TERMINATING SANCTIONS, ETC.